Long v Transport Accident Commission
[2014] VCC 281
•19 March 2014
| IN THE COUNTY COURT OF VICTORIA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-03080
| JANELLE LONG | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 March 2014 | |
DATE OF JUDGMENT: | 19 March 2014 | |
CASE MAY BE CITED AS: | Long v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 281 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Injury to the non-dominant right wrist – whether the impairment consequences are “serious”
Legislation Cited: Transport Accident Act 1986, s93(4)(b)
Judgment: Leave granted to the plaintiff to commence a proceeding at common law for injury suffered to her right wrist in a transport accident on 30 May 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor | Maurice Blackburn |
| For the Defendant | Mr R Middleton with Ms L Glass | Wisewould Mahony |
HIS HONOUR:
Introduction
1 By an Originating Motion filed 13 June 2013, the plaintiff seeks leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (“the Act”) to bring a proceeding to recover damages at common law for injuries which she suffered in a transport accident which occurred on 30 May 2008.
2 The plaintiff claims that she has suffered serious a long-term impairment or loss of the function of her right wrist.
3 Mr G Chancellor of Counsel appeared for the plaintiff. Mr R Middleton SC appeared with Ms L Glass of Counsel for the defendant.
4 The following evidence was adduced at the hearing of the application:
· The plaintiff gave evidence and was cross-examined.
· The plaintiff tendered her Court Book (“PCB”) pages 6-65: Exhibit A
· The defendant tendered its Court Book (“DCB”) pages 4, 6, 14-58, 72-84, 87, 124, 128 and 131-134: Exhibit 1.
The transport accident
5 On 31 May 2008, the plaintiff was a front-seat passenger in a car when the driver lost control of it. The car left the roadway and collided into a tree. The plaintiff was removed from the scene of the transport accident by ambulance and was taken to the Maroondah Hospital.
The issues
6 Mr Chancellor submitted that the application was relatively simple and straightforward. He submitted that the plaintiff had suffered a significant fracture to her right wrist which impaired the function of her right wrist to such an extent that the impairment consequences easily met the statutory test.
7 Mr Middleton did not contest that the plaintiff suffered an injury to her right wrist as a result of the transport accident. However, he submitted that the medical evidence disclosed that the plaintiff had returned to a reasonable level of functioning, and was otherwise unable to demonstrate that the impairment consequences met the statutory test. Furthermore, he submitted that the plaintiff has been diagnosed with a psychiatric illness which is the real reason why she has, for example, been unable to pursue employment.
8 After considering the plaintiff's evidence, the evidence tendered by the parties, and the submissions made by Mr Chancellor and Mr Middleton, I have reached the conclusion that this is a rather more simple and straightforward application than the more complex application which Mr Middleton suggested it appeared to be.
The Plaintiff’s medical treatment
9 The plaintiff was admitted to the Maroondah Hospital on 31 May 2008 at about 2.15am. She came under the care of Mr Hardidge, orthopaedic surgeon. His initial assessment of her right wrist injury was of a highly comminuted intra-articular fracture of the right distal radius and a fracture of the ulnar styloid. Mr Hardidge proceeded to surgically repair the fractures. The surgery involved:
“… placing several plates and multiple screws as well as bone graft around the right wrist.”
10 The plaintiff was reviewed at the hospital in June, July and August 2008 and later in August 2010. Mr Gard, orthopaedic surgeon, would appear to have taken over the care of the plaintiff at some stage, because he composed a report outlining the plaintiff’s treatment at the Maroondah Hospital. In August 2010, the plaintiff complained of pain and stiffness around her right wrist. It was noted that there was some irritation of the extensor tendons of the fingers from the internal fixation device. Some of the internal fixation was removed in September 2010.
11 When last reviewed, the plaintiff’s clinical and functional status was, according to Mr Gard, one of a less than perfect outcome. He noted that the plaintiff still had discomfort and stiffness in her right wrist.
12 The plaintiff was referred to physiotherapy. She has not had any physiotherapy now for some years. She sees Dr Raza, general practitioner. Currently, her treatment is limited to prescriptions of Panadeine Forte. The plaintiff’s best estimate is that she takes as few as five Panadeine Forte per month, and up to fifteen per month. The extent to which she relies upon Panadeine Forte depends on weather conditions, and I took that to mean that the plaintiff suffers more problems with her right wrist in colder weather, which is when she relies more on Panadeine Forte for pain relief.
13 The plaintiff was candid in her evidence that she has had very little medical treatment over the years since the surgery undertaken in September 2010 to remove some of the internal fixation.
The medico-legal opinions
14 Mr Chancellor and Mr Middleton referred me to the opinions of a number of medical practitioners who were asked by the solicitors for the parties to examine the plaintiff. It appears to me that there is no issue taken by any of those medical practitioners that the plaintiff suffered fractures to her right wrist, required surgery, and has a number of residual consequences of the injury. Where they appear to part company is the present degree of those residual consequences, and whether the plaintiff will suffer arthritic changes which may expose her to the necessity for ameliorative surgery.
15 At some stage the plaintiff was treated by Dr Kempster, general practitioner. He referred the plaintiff to Mr Booth, orthopaedic surgeon. The plaintiff saw Mr Booth on 20 April 2009. Mr Booth considered that the plaintiff had obtained expert treatment at the Maroondah Hospital, and that treatment had provided her with a very good result. It would appear that he examined her and found that she had mild instability of the distal radioulnar joint and x-ray evidence of non-union in the joint. He advised her that she needed to accept that she had suffered an injury to her wrist which had resulted in damage to her wrist.
16 Mr Booth reviewed the plaintiff on 29 June 2009. It would appear that the plaintiff discussed the prospect of the removal of some of the internal fixation with Mr Booth. He was not convinced that removing some of the internal fixation would necessarily assist the plaintiff in a reduction of the symptoms she was experiencing and improve the function of her right wrist. In the course of examining her, he noted that she had some mild symptoms in her right wrist, there was no tenderness on palpation of the right wrist, and there was mild swelling from time to time and occasional ache and restriction of dorsiflexion of about 45 degrees. He was of the opinion that the pain that the plaintiff was experiencing was typical of post-dramatic arthritis. He was hopeful that the pain would improve. He noted, no doubt from what the plaintiff told him, that the pain was worse in cold weather and sometimes had a throbbing component to it. Otherwise, he did not consider there were any other complicating abnormalities to be found on examination.
17 The plaintiff was referred to Mr Simm, orthopaedic surgeon. He examined the plaintiff on a medico-legal basis on 23 November 2009, 15 August 2011 and 16 July 2013. After examining the plaintiff on the first occasion, he noted that her grip strength was 20 kilograms with her right hand and 28 kilograms with her left hand. On the subsequent occasions he examined her, he noted her grip strength to be 14 kilograms with her right hand and 26 kilograms with her left hand, and then an average of 12 kilograms with the right hand and an average of 24 kilograms with her left hand. On the last occasion he made those measurements, he considered that it represented a 47 per cent loss index in her right hand. The plaintiff is left-hand dominant.
18 Mr Simm considered that the plaintiff had suffered a severe comminuted displaced fracture of the distal right radius involving the wrist joint and a comminuted fracture of the ulnar styloid. He was unable to examine the articular surface of the joint because it was obscured by metal fixation. He was of the opinion that because of the substantial disruption of the radial articular surface, that she carried an increased risk of developing osteoarthritis of the radio carpal joint which might expose her to the need for ameliorative surgery, such as a wrist arthrodesis.
19 When Mr Simm examined the plaintiff a second time, she had undergone surgery to remove some of the internal fixation. He noted that the plaintiff told him that the second episode of surgery did not improve her symptoms. The opinion he expressed after the second and third occasions that he examined the plaintiff did not change.
20 In relation to the plaintiff’s capacity to work, he was of the opinion that she could not undertake unrestricted, heavy physical occupational activities with her right hand. He did not consider that she required the active treatment except for the use of painkilling medication.
21 The defendant had the plaintiff examined by a number of orthopaedic surgeons. The first of those was Mr Shannon, who examined the plaintiff on 1 June 2010 before some of the internal fixation was removed from the plaintiff's right wrist. His opinion does not differ much from Mr Simm’s opinion. At that stage, he was of the opinion that removal of some of the internal fixation would probably not reduce the level of her impairment. He considered that she would have difficulty working full time doing repetitive work such as operating a coffee machine.
22 In a second report, more to do with the application of the AMA Guides, Mr Shannon made the observation that the plaintiff had suffered a significant injury to her right wrist which had resulted in restriction of movement.
23 Mr Dooley was the next orthopaedic surgeon to examine the plaintiff. He did so on 25 October 2012. He said that the plaintiff's intermittent aching of the wrist, inability to use it in an unrestricted fashion, and the subjective weakness that she was experiencing were to be expected from the nature and extent of the injury to her right wrist. He considered that she was at risk of developing post-traumatic osteoarthritis in her right wrist joint in the long term. He considered that she would be able to undertake employment on a full-time basis, but would continue to have some disability in her right wrist.
24 The last orthopaedic surgeon to examine the plaintiff was Mr Jones. He did so on 13 February 2014. He considered that she had been left with a mildly restricted range of right wrist joint movement and mildly diminished power of grip involving her right hand. He considered that her fractures had soundly united. He considered that the outlook for the plaintiff was a likelihood of persisting symptoms of occasional pain in the right wrist joint, particularly if the wrist was knocked, and there would be a permanent loss of mild restricted range of movement which he considered she was currently exhibiting. He did not consider that she would suffer any significant deterioration in the level of her wrist function in the short term, but in the extreme long term, it was likely she would develop osteoarthritis which would diminish the level of her wrist function.
Consequences
25 The plaintiff was born in 1983. She is now thirty-one years of age. She has a son who is twelve years of age. She was involved in an apparently acrimonious dispute with the father of her son regarding his care and custody. Her son now lives with his grandmother and with the plaintiff on some sort of shared arrangement.
26 The plaintiff was educated to Year 10 level. She has no post secondary school education or training. Her employment history prior to the occurrence of the transport accident was in general and unskilled employment. She worked at an Aldi supermarket on cash registers and undertaking packing and stacking of shelves. She worked in a bakery. She ran a milk bar with her former partner. She assisted her former partner, who pursued the trades of bricklayer and roof tiler. She worked at a café known as Muffin Break.
27 Subsequent to the occurrence of the transport accident, the plaintiff described the employment she pursued as follows:
· In early July 2008, she returned to Muffin Break on very light duties. She increased her work duties. She had difficulty handling jugs, cups and undertaking the heavier aspects of her work, such as carrying trays, containers and buckets. Knocking her wrist produced pain, and at times if she jarred or jammed her wrist she would drop cups.
· She reduced her hours, because the work just described was too much for her. At the time of the reduction of her hours, she was using about twenty Panadeine Forte tablets per month. It would appear that she persisted with that employment until about mid-2009.
· In about mid-2009, the plaintiff commenced working for a Coles supermarket as a night filler packing shelves. The repetitive nature of the lifting and handling that was involved in that work aggravated the condition of her right wrist. She also worked in the bakery at the supermarket, but because of insufficient training, she was unable to manage that work.
· Subsequently, she obtained a traffic controller’s certificate. She obtained employment with Yarra Valley Utilities as a traffic control assistant. She worked full-time for a few months. The necessity to move road signage aggravated the condition of her right wrist, as did lifting witches’ hats and reaching. She then reduced her work as a traffic controller down to two days per week and recommenced employment with Muffin Break three days per week. She ceased work as a traffic control assistant and at Muffin Break altogether in November 2010.
· She then worked for a short time with a Subway food outlet.
· In December 2010, she obtained employment with Bursons. She drove a utility vehicle delivering auto parts. She obtained assistance loading and unloading the parts from the utility. She experienced stress and anxiety when driving. She ceased that work in April 2011, after which she was off work for some time.
· In September-October 2011, she worked as the manager of a coffee shop for two or three weeks. The owner wanted to pay her cash. The plaintiff refused to work on that basis.
· The plaintiff was unemployed until 29 January 2012. She was subjected to stalking. The stalker harassed the plaintiff. On one occasion he, and his confederates, confronted the plaintiff in a hotel carpark. They seriously assaulted her companion who tried to protect her. On another occasion, the stalker invaded her home. She was clearly scared of him, and as a consequence was reluctant for a time to go out in public. The stalking persisted over a period of about four years from the time of the occurrence of the transport accident.
· On 29 January 2012, the plaintiff obtained work as a car detailer working three days per week. She was able to undertake the work so long as she used her left hand, but when she had to use both hands she suffered an aggravation of the condition of her right wrist. She worked for a few months in that employment.
· The plaintiff last worked in a bakery. She did not say the when she worked or what hours she worked. She has applied for other work, mainly in the hospitality industry. At present she is not employed.
28 The plaintiff has suffered the following pain and suffering consequences of the injury to her right wrist:
· Pain, restriction of movement and loss of strength in her right wrist and hand.
· Intermittent swelling.
· An inability to undertake manual activity with her right wrist and hand where repetitive and/or forceful movements are required.
· More pain and the onset of stiffness in the colder months of the year. Less so during the warmer months of the year.
· Difficulty undertaking heavier housework, such as lifting heavy items and using a motor mower due to difficulty pushing it and suffering vibrations from it.
· Difficulty driving a car due to the stress on her right wrist when turning the steering wheel and suffering any jolts or vibrations through the steering wheel.
· An inability to engage in social and recreational activities she hoped to return to, such as basketball and boxing.
· Interference with her capacity to work in a range of types of employment where the tasks involved will create the stress on the plaintiff’s right wrist which she cannot tolerate. That has been adequately described in the reports of the examining doctors, and in the plaintiff's evidence.
Findings
29 The plaintiff struck me as an entirely creditworthy and reliable witness. There was nothing in the cross-examination which suggested that what she deposed to in her affidavits and what she said in her oral evidence was other than true. I have no hesitation in accepting the plaintiff’s evidence in whole.
30 An attack was made upon the plaintiff through the medical opinions of Dr Strauss, psychiatrist, and Dr Ingram, psychiatrist. It is plain that the plaintiff has had an unfortunate life where she has been exposed to incidents which have undoubtedly had an impact upon her psychiatric state. Dr Ingram has diagnosed that the plaintiff has potentially serious psychiatric disorders. However, Mr Middleton submitted that the reason for the plaintiff's behaviour, both before and since the occurrence of the transport accident, is explained in the opinions of Dr Strauss and Dr Ingram. I think that submission lacks substance.
31 I return to my initial observation that this is a relatively simple and straightforward application for serious injury. There can be absolutely no doubt that the injury has been identified by each of the orthopaedic surgeons who have examined the plaintiff for the purpose of treatment or to give opinions on a medico-legal basis. There seems to be little difference of opinion that the plaintiff has residual symptoms, and has some measure of risk of suffering the onset of osteoarthritis in her right wrist joint which will progress, and may expose her to the necessity for ameliorative surgery.
32 There is an obvious, but not substantial, difference in the opinions of some of the orthopaedic surgeons, but those differences seem to me to be rather more about the nature and extent of the symptoms which the plaintiff suffers now, the extent to which those symptoms impair the function of her right wrist relevant to pain and suffering and loss of enjoyment of life and her capacity to undertake employment, and whether she is presently suffering from osteoarthritis in her right wrist joint and what it will mean for her in the future.
33 I consider the approach that I must take is to determine what the plaintiff has lost as a result of the impairment of the function of her right wrist, and the consequences of that impairment. Of course, I can be informed of the nature and extent of that loss by what the plaintiff has retained. Furthermore, I consider the approach that I must take is to focus on the impairment of the function of the plaintiff’s right wrist, and not be distracted by other impairments which might impair the plaintiff’s functioning in some other ways.
34 I have considered the plaintiff’s evidence, the medical opinions and the addresses of Mr Chancellor and Mr Middleton, and I have concluded that the impairment consequences suffered by the plaintiff do meet the statutory test. In summary, my reasons for making that finding are as follows:
· The plaintiff is a young woman. She is thirty-one years of age. She has suffered the impairment of function of her right wrist for nearly six years. There is nothing in the medical evidence to suggest otherwise than she will continue to suffer from that impairment of function for the foreseeable future.
· The impairment of function is constituted by intermittent pain; some intermittent swelling; the inability to tolerate stress and strain, and more particularly, lifting, carrying, pushing and undertaking repetitive tasks with her right wrist and hand; increased pain in cold weather, and more acute pain when her right wrist is knocked against a hard surface.
· The impairment of function has interfered with the plaintiff’s capacity to undertake work. I accept the plaintiff’s evidence that using her right hand repetitively when operating a coffee machine, and undertaking the other work which I have summarised in paragraph 27 above are moderately serious levels of interference for someone with a modest education who was reliant upon her bodily integrity in order to undertake manual and physical work requiring bilateral hand function.
35 True it is that the plaintiff has not had any significant medical treatment for many years, and only relies upon more significant dosage of Panadeine Forte during the cold weather; however, the absence of medical treatment is not so significant here, because not one of the orthopaedic surgeons who has examined the plaintiff has suggested that the residual symptoms she experiences requires medical treatment, except for Mr Simm, relevant to whether the onset of osteoarthritis might expose the plaintiff to risk of surgery in the future. It is the very type of injury which commonly sees sufferers reach a point where no medical treatment is of any use. I think that is the position which the plaintiff has found herself in.
36 The plaintiff also points to interference with her capacity to engage in social and recreational activities. She has not played basketball since before the occurrence of the transport accident, but that does not mean that I must find that she would never return to playing basketball. Life's experience shows that there are occasions when parents need to put to one side social and recreational pursuits when there is a need to care for children until the time arrives when an interest in those sorts of pursuits can be enlivened. That seems to be the position the plaintiff believes she is in now. I accept that, for example, catching a basketball and engaging in boxing and other recreational pursuits would be very difficult for the plaintiff to engage in because of the condition of her right wrist.
Conclusion
37 There is no doubt that the plaintiff suffered a nasty injury to her right wrist. She obtained benefit of surgery which gave her a very good result. However, she has been left with an impairment of function of the kind which I have described above. The impairment is long-term, and has consequences for the plaintiff in her social, domestic, recreational and working pursuits. There are very few manual activities where the plaintiff's right wrist does not cause some measure of interference. In the circumstances, I conclude that the plaintiff has suffered a “serious injury”.
38 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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