Lord v Transport Accident Commission
[2020] VCC 1638
•16 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-05816
| DONALD EDWARD LORD | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 October 2020 | |
DATE OF JUDGMENT: | 16 October 2020 | |
CASE MAY BE CITED AS: | Lord v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1638 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Acute acoustic trauma to the right ear – resulting tinnitus and sensorineural hearing loss – interference with sleep – interference with enjoyment of retained social, domestic, recreational and work activities – unusual injury not often seen – method of reasoning whether the injury and its consequences are “serious”
Legislation Cited: Transport Accident Act 1986, s93(4)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129, Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: The plaintiff’s originating motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab with Mr A Newman | Shine Lawyers |
| For the Defendant | Mr A D Clements QC with Ms A Bannon | Solicitor for the Transport Accident Commission |
HIS HONOUR:
Introduction
1 On 2 December 2016, the plaintiff was driving his car along McColl Street in Preston when it collided with another car at the intersection of Rene Street. The other car came through a stop sign and collided into the driver’s side of the plaintiff’s car, causing it to flip over onto its roof.
2 The airbags in the plaintiff’s car deployed, with the result that the plaintiff was struck to the right-hand side of his head by an airbag. He initially could not get out of his car. He was assisted by bystanders. He rested, and despite an offer to be removed from the scene of the transport accident by ambulance, the plaintiff declined that offer. His wife picked him up and took him to their home.
3 The plaintiff suffered two injuries. He suffered a left shoulder injury which troubled him for some time. He also suffered a further injury on which this application for serious injury is based. It has been diagnosed as being either a traumatic injury to the right cochlea or an acute acoustic trauma to the right ear. The defendant preferred to refer to the injury as an acute acoustic trauma. The plaintiff saw no issue with that, so I will refer to it by that diagnostic label.
4 The plaintiff submitted that the acute acoustic trauma has resulted in a long-term impairment of the function of his acoustic system with consequences which are serious. The defendant accepted that the plaintiff suffered the injury, and that the impairment consequences are significant, but does not accept that they reach the higher standard of being serious. I should add that there was no issue that the impairment is long-term.
Appearances
5 Mr A Macnab of counsel appeared with Dr A Newman of counsel for the plaintiff. Mr A D Clements QC appeared with Ms A Bannon of counsel for the defendant.
The Plaintiff’s medical treatment
6 The defendant conceded that there is little or no controversy in the medical evidence. Where the controversy lies is relevant to some of the impairment consequences claimed by the plaintiff to have arisen from the injury.
7 The plaintiff was immediately aware of a headache, pain in his neck and left shoulder, and what he described as a “weird buzzing noise” in his right ear which would not go away.[1] He attended the Austin Hospital on 3 December 2016. He was referred to have a CT scan of his brain and neck. It did not disclose any abnormality.[2]
[1]Joint Court Book (“JCB”) 15
[2]JCB 15 and 38
8 The plaintiff saw Dr Angeline Harindar, general practitioner, at the Complete Care Medical Centre (“the Medical Centre”) on 6 December 2016. On that occasion, he told Dr Harindar about the impact of the airbag on his right ear and that he was suffering from tinnitus. The plaintiff was referred to a number of other entries in the clinical notes.[3] The particular entries of interest are the following:
[3]JCB 158-180
· 22 December 2016 – complaining of pain in his left shoulder.
· 16 January 2017 – the entry refers to the left shoulder, but of interest it refers to “he is [s]till pain, hard to sleep” (sic).
· 3 and 9 March 2017 – treatment for the left shoulder.
· 23 August 2017 – treatment for stress at work. He was provided with a WorkCover certificate.
· 6 September 2017 – treatment for stress at work, but of interest it refers to “he is find[ing] it hard to sleep”.
· 8 and 20 September 2017 – treatment for the left shoulder.
· 22 and 28 November 2017 – stress at work.
· 30 January 2018 – stress at work.
· 9 April 2019 – reference to an incident at work on 8 April 2019, but of interest it refers to “he could not s[l]eep well last night he had flush (sic) back”.
9 The relevance of some of these entries will become apparent when I turn to the cross-examination of the plaintiff, but for present purposes, what they demonstrate is that the plaintiff obtained treatment for the injury, his left shoulder and for a stress-related condition resulting from his work circumstances.
10 I think the plaintiff’s subsequent treatment for the injury can be summarised briefly as follows:
· 16 February 2017 – an audiogram which the plaintiff understands disclosed that he was suffering from some high-frequency hearing loss.[4]
[4]JCB 16
· 30 March 2017 – a further MRI scan of his brain.[5]
[5]JCB 40
· 8 June 2017 – a further audiogram which the plaintiff also understands disclosed that he was suffering from some high-frequency hearing loss.[6]
[6]JCB 16
· June 2017 – assessment by an ENT specialist at the Austin Hospital, who recommended that the plaintiff trial a hearing aid.[7]
[7]JCB 16
· 1 August 2017 – an audiological assessment and tinnitus evaluation which demonstrated sensorineural hearing loss.[8]
· 1 August 2017 – assessment for a hearing aid to be used as a “tinnitus masker”.[9]
[8]JCB 43-44
[9]JCB 45-49
11 The plaintiff was provided with a hearing aid. He found it to be of no benefit. It aggravated the tinnitus and buzzing sound in his right ear. He experienced a sensation of sound being amplified when he wore the hearing aid. He discontinued using it after a couple of weeks.[10] That would appear to be the end of any formal treatment which the plaintiff had for the injury.
[10]JCB 17
The medico-legal assessments
12 The plaintiff was assessed by Mr Michael Silverstein, otolaryngologist, on 5 October 2017, 7 March 2019 and 30 April 2020. He provided three reports dated 5 October 2017,[11] 8 March 2019[12] and 1 May 2020.
[11]JCB 51-56
[12]JCB 59-62
13 In his second report, Mr Silverstein noted that if the tinnitus masker had been provided to the plaintiff and it was of no assistance to the plaintiff, then he considered there was nothing else that could be offered to the plaintiff by way of treatment. He also noted that the persistent tinnitus could impact upon the plaintiff psychologically.
14 In his third report, Mr Silverstein confirmed his earlier stated opinion, and added a number of observations which are of importance. He referred to the plaintiff’s interference with sleep and its likely implications for the plaintiff’s concentration span and work performance, and the annoyance which the plaintiff would experience with domestic and leisure activities and annoyance, discomfort and disability associated with poor sleep.
15 Mr Robert Webb, otolaryngologist, examined the plaintiff on 29 April 2020. He provided a report dated 29 April 2020.[13] He considered that the plaintiff had suffered high-frequency sensorineural hearing loss in his right ear and tinnitus consistent with an episode of acute acoustic trauma. He considered that the plaintiff’s hearing loss and tinnitus were permanent, but would not deteriorate. He suggested that the plaintiff’s only treatment was centred around the management of the tinnitus through programs conducted by audiologists.
[13]JCB 105-110
16 The plaintiff completed a document described as a tinnitus functional index on 1 August 2017[14] in which he subjectively scored a range of functions, and more particularly, awareness of his tinnitus, control over it, capacity to concentrate, sleep, hearing, resting and relaxation, social activities and anxiety and worry. The plaintiff scored most of those at a high to very high level.
[14] JCB 181-182, and an additional assessment at 183-185
17 The plaintiff submitted that the functional index scores are demonstrative of the real impact of the injury, the impairment it causes and confirmation of the impairment consequences. If I were to take the functional scores in a vacuum without any knowledge of the plaintiff’s evidence, then I would be driven to conclude that the plaintiff’s impairment consequences would be likely to be very serious; however, when the functional scores are considered in the context of the whole of the evidence, they rather more demonstrate the plaintiff’s subjective assessment at that time, and not the reality of his level of functioning.
Consequences
18 The plaintiff described a number of consequences of the injury:[15]
[15]JCB 19-21 and 24-28
Tinnitus
19 The plaintiff described his biggest frustration as the persistent hissing and buzzing noise in his right ear which he finds extremely frustrating. He also described it as being like a large blowfly stuck in his head all day or like a speaker (I assumed an audio speaker) constantly playing static or white noise into his right ear.
20 The plaintiff also described the impact of the tinnitus as being unpleasant, intrusive and persistent. He added that it is annoying, frustrating and deeply upsetting because of the constant buzzing and noise.
Quiet times
21 The plaintiff described the tinnitus as being worse during quiet times. He gave an example of lying in bed at night when he has noticed that the buzzing inside his head is really noticeable. He struggles to relax because when he does, the buzzing becomes more noticeable and distracting.
Interference with sleep
22 The buzzing inside the plaintiff’s head that he experiences when he is lying in bed has made it difficult for him to get to sleep. He tends to toss and turn. He wakes at regular intervals during the night and then struggles to get back to sleep. His restlessness has led to his wife sleeping in a different bed for the purpose of getting a better night’s sleep. His lack of sleep has led to him feeling tired, fatigued and lacking in energy during the day.
Interference with exercise
23 The plaintiff finds that when he exercises alone and develops an elevated heart rate, the tinnitus can become quite distracting. The hissing and buzzing in his right ear increases.
Interference with concentration
24 The plaintiff finds that the tinnitus has interfered with his concentration. It has made it difficult for him to focus on reading. It also interferes with his level of functioning with his work.
Hearing loss
25 The plaintiff experiences a particular problem with hearing loss in noisy environments, such as when eating out at a restaurant or visiting a hotel. He struggles in those circumstances and strains to pick up conversation, and to follow conversations. He finds that situation to be embarrassing.
Low mood
26 The level of the upset, frustration, irritability and reaction to the injury has resulted in the plaintiff suffering a lowered mood. He has become irritable when out driving because of the constant ringing sound in his right ear. I have taken into account the traumatisation features described by Dr Kaplan, psychiatrist, as a consequence of the injury. Dr Kaplan examined the plaintiff on 15 November 2017, 24 October 2018 and 18 March 2020. He provided three reports dated 22 November 2017,[16] 25 October 2018[17] and 20 March 2020.[18]
[16]JCB 78-89
[17]JCB 90-98
[18]JCB 99-104
Treatment
27 The only active treatment that has been offered to the plaintiff was the provision of the hearing aid to act as a masker. He used it for a couple of weeks. He did not find it helpful. The additional noise which he experienced was even more distracting than the tinnitus on its own. He has used Temaze, but relatively rarely.
Recreational activities
28 The plaintiff has a passion for ice hockey which he continues to enjoy. He was also given to snow skiing and “going bush”. He finds these activities less enjoyable because he cannot escape the effect of the tinnitus. The raising of his heartbeat when playing ice hockey makes the tinnitus worse; however, at the same time, focusing in on playing the game creates a distraction from the tinnitus.
Domestic activities
29 The plaintiff trained as an electrician. He regarded himself as being quite handy around the home, enjoying doing repairs and maintenance work. He is currently painting his home. He has found that every project he has taken on has taken him longer because of the tinnitus, for example painting, heavy cleaning, gardening and overhead activities like cleaning gutters.
Alcohol
30 The plaintiff has increased his use of alcohol over the last couple of years to try to help him relax and sleep better. His use of alcohol and also Temaze has not relieved the difficulty he has in getting to sleep.
The Plaintiff’s witnesses
31 The plaintiff’s wife, Ms Christine Lord, swore an affidavit on 6 July 2020[19] in which she confirmed the problems which the plaintiff has endured with the constant ringing in his ears, problems with his left shoulder, problems with his sleep, problems with his hearing, and interference with his social, domestic, and recreational activities. None of this evidence was challenged save through limited cross-examination of the plaintiff.
[19]Transcript 34-37
32 The plaintiff’s friend, Mr Clive Enos, swore an affidavit on 4 June 2020[20] in which he confirmed the plaintiff’s interest in golf, ice hockey, and the problems that he has observed relevant to the constant ringing in the plaintiff’s ears, his left shoulder injury and the changes which he has seen in his personality. He gave the example of seeing the plaintiff noticeably change his attitude when driving.
[20]JCB 31-33
33 The affidavits of Ms Lord and Mr Enos fortify me in accepting the plaintiff’s evidence that each of the impairment consequences which he has deposed to in his affidavits and referred to in his oral evidence are true.
Retained activities
34 The plaintiff, under cross-examination, candidly conceded that he is able to work full time, and to otherwise engage in almost the whole range of domestic, social and recreational activities that he did prior to suffering the injury and with the same frequency.
35 Under cross-examination, the plaintiff was asked about the level of his domestic, social, recreational and work activities, and the extent to which he continues to engage in them. I will deal with them in the same order as the cross-examination. I should add that the following social and recreational activities are activities which the plaintiff says he would be engaging in now, but for the COVID-19 lockdown.
· The plaintiff has a long history of association with ice hockey. He continues to play it as often as he did before he was injured. He played twice a week for a Melbourne club.[21]
[21]Transcript 29-30
· The plaintiff was employed by the Department of Health and Human Services (DHHS), but is now employed by a former contractor of DHHS known as Life Without Barriers. He works at a unit in Doncaster, which houses five male residents, working the same hours he worked before he was injured.[22]
[22]Transcript 28-29
· The plaintiff snow skis. He has skied in Canada and Japan. He last skied in Japan in January 2019.[23]
[23]Transcript 30
· The plaintiff played golf before he was injured. The left shoulder injury interfered with his ability to play golf until about March or April 2017 when he was able to return to playing.[24]
[24]Transcript 31
· The plaintiff went out to dinner with friends about once a month. He went out to dinner with his wife to a local Indian restaurant every weekend. He continued enjoying social activities.[25]
· The plaintiff continued to engage in other activities, for example grocery shopping, cooking, performing domestic tasks around his home, and walking his dog most days.[26]
[25]Transcript 31
[26]Transcript 31-32
36 Under re-examination, the plaintiff essentially described having lost enjoyment in all of these domestic, social, recreational and work activities.[27]
[27]Transcript 32-35
37 The defendant paid particular attention to the plaintiff’s evidence that his sleep has been dramatically affected by the injury. He was referred to the clinical notes of the Medical Centre which I summarised above, and in particular, to the entry dated 23 August 2017 when he sought treatment for stress at work. The plaintiff agreed that he had an unpleasant confrontation with a supervisor in August 2017. The unfortunate outcome for him was that he was off work for about seven or eight months. He was provided with a WorkCover certificate by Dr Thurairajan Vyravipillai, who practices at the Medical Centre.
38 The plaintiff was subsequently referred to the entry of 29 August 2017, and in particular, the notation that he was finding it hard to sleep. He agreed that over the seven or eight months that he was off work, that he had problems sleeping due to stress and anxiety.[28] He also agreed that he saw a psychologist on two occasions for treatment for work-related stress.[29]
[28]Transcript 13-14
[29]Transcript 15
39 The plaintiff was examined by Mr Ash Chehata, orthopaedic surgeon, on 14 November 2018 on a medico-legal basis to provide an assessment of the plaintiff’s left shoulder injury. He provided two reports, only one of which was tendered, dated 17 November 2018.[30] The plaintiff was referred to the following entry:
“He is back playing ice hockey, and in hindsight it is the period of time between the motor vehicle accident, up until the thawing of the left shoulder in March 2018, that has caused him the greatest amount of concern, and trauma. He was unable to sleep at night prior to this, waking four to five times per night, and now sleeps through the night, and is now currently off all medications.”
[30]JCB 73-77
40 The plaintiff agreed that as his work stress subsided and his left shoulder symptoms subsided, that his sleep improved somewhat.[31] When the observation made by Mr Chehata was put to the plaintiff and he was asked whether his sleep improved to the point where he was sleeping through the night, the plaintiff said that he did not recall saying that to Mr Chehata. He added that the left shoulder injury was a very serious issue for him relevant to sleeping, and that after the left shoulder pain went, he was left with the tinnitus which continued to disturb his sleep.[32]
[31]Transcript 15
[32]Transcript 16
41 The plaintiff denied that it was the combination of the work stress and the left shoulder pain which caused him the most trouble with sleep. He agreed that he was prescribed Temaze on 9 April 2019 for work stress. He was asked the same question relevant to the prescription of Temaze on 29 August 2017, but his answer was non responsive. I think it is probable that he was provided that prescription because of work stress.
42 It was my impression that the plaintiff’s use of Temaze was of marginal importance in treatment for the injury because he had gone without it for some time between 2017 and until 9 April 2019, when he was provided with a further prescription.[33] In any event, he said that he took it rarely and maybe once or twice a month.[34] It was in the context of this cross-examination that the plaintiff was pressed that his sleep was not as affected by the tinnitus as he maintained. He said that he was greatly disturbed by the tinnitus, with some nights being worse than others.[35]
[33]Transcript 20
[34]Transcript 25
[35]Transcript 25
43 The last issue relevant to the plaintiff’s sleep was the plaintiff’s increased consumption of alcohol of between four to six cans of beer three or four days per week. He denied that that level of consumption was interfering with his sleep. He said that it helped him to relax and get to sleep. It did not cause him to have a restless night’s sleep.[36]
[36]Transcript 24
The Plaintiff’s consequences
44 The plaintiff struck me as being an entirely straightforward historian who gave his evidence in a most uncomplicated manner, and indeed, to the extent that I have little hesitation in accepting the whole of his evidence.
45 I am fortified in reaching that conclusion because Mr Silverstein and Mr Webb found no reason to doubt the plaintiff’s complaints, and based their opinions on what they considered to be reliable testing of the plaintiff.
46 The vast majority of serious injury applications, whether under the Transport Accident Act 1986 or the Accident Compensation Act 1985, are musculoskeletal in origin. The basis upon which the relevant comparison with other cases in the range of possible impairments is not always straightforward, but often the consequences are similar and allow the process of making the comparison to be undertaken. For example a back injury with some discal involvement will cause pain, interference with mobility, interference with sleep and an understandable interference with social, domestic and recreational activities. The predictability of the consequences of a back injury make it rather more straightforward in making the relevant comparison because there are like impairments against which such a comparison can be made.
47 Despite the fact that I considered, at first, that this case presented difficulties in making the comparison called for, I have resolved it by returning to first principles and authority which, I think, demonstrate that the plaintiff’s consequences may approach significant, but cannot reach the ultimate test of being serious. My reasons for reaching that conclusion are as follows.
48 The narrative test is the lens through which I must look in deciding whether the plaintiff has suffered a serious long-term impairment or loss of a body function. That narrative was the subject of the guidance given in Humphries & Anor v Poljak.[37]It is useful to be reminded of what the majority observed in this connection:
“… In forming a judgment as to whether, when regard is had to such consequence, and 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 as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? … .”[38]
[37][1992] 2 VR 129 (“Humphries”)
[38]Humphries at 140
49 In Stijepic v One Force Group Aust Pty Ltd & Anor,[39] after referring to Humphries, the Court of Appeal considered the emphasis in the narrative definition of serious injury:
“… is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation - because, it may be supposed, the consequences are glaringly apparent one way or the other. The spectrum is not established simply by fastening upon a case or two in which the applicant has failed.”[40]
[39][2009] VSCA 181
[40]At paragraph [42]
50 In Dwyer v Calco Timbers Pty Ltd (No 2),[41] Ashley JA enunciated what I consider to be a very helpful thesis:
“Finally, I agree with the submission for the respondent that in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significant of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”[42]
[41][2008] VSCA 260
[42]at paragraph [27]
51 I have set all of this out to firmly keep in mind that the narrative test and the authorities provide that when dealing with an application based upon the narrative test in paragraph (a), that there is a method by which the impairment consequences must be assessed.
52 I think this rules out treating a rarely seen injury such as the one I am dealing with, as calling for different treatment than would ordinarily be the case with any other application for serious injury based upon an injury commonly seen. I think the flexibility in the narrative definition and the authorities speak of the adaptability of the process of assessment sufficient not to prejudice an applicant whose injury is rarely seen and where there are no direct comparators.
53 My sound imagination informs me that being plagued with persistent tinnitus and a level of hearing loss which is incapable of amelioration would be difficult to tolerate, as would recurring interference with sleep. However, the plaintiff has almost all of his pre-injury social, domestic, recreational and work activities intact, save for interference with each of the consequences set out in paragraphs 18-30 above. It is difficult to appreciate how that level of retention of those activities can support a conclusion that the impairment consequences are serious.
54 I should say that what I found challenging was the fact that the plaintiff has had one of his five senses impaired to the extent of tinnitus, and hearing loss. Human senses are critical to an appreciation of daily experience. One only has to use sound imagination to appreciate that some degree of impairment of sight, smell, taste, hearing and touch may well be felt seriously even where it is slight. I think that is particularly so where the loss is incapable of amelioration. The process of weighing up whether the impairment consequences to the plaintiff should be considered differently in some way, and should overwhelm the conventional and accepted method of assessing serious injury was one which troubled me. However, having engaged in the foregoing process of reasoning, I have resolved to dispose of the plaintiff’s application in the manner referred to next.
55 After considering the whole of the evidence and the submissions made by the plaintiff and the defendant, I am satisfied that the plaintiff suffered the injury. I am satisfied that the impairment of function is long term. I am satisfied that the plaintiff has suffered impairment consequences of the kind which I have summarised in paragraph 18-30 above; however, when I measure what the plaintiff has lost against what the plaintiff has retained as a method of measurement of whether the impairment consequences are serious, I have concluded that they are not.
56 It is for these reasons that I will order that the plaintiffs originating motion be dismissed with costs.
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