Mailei v Transport Accident Commission
[2022] VCC 2263
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-21-05113
| TRENT MAILEI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 September 2022 | |
DATE OF JUDGMENT: | 16 December 2022 | |
CASE MAY BE CITED AS: | Mailei v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2263 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Injury to the right leg – paragraph (a) of the definition of “serious injury”
Legislation Cited: Transport Accident Act, s93(17)
Cases Cited:Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Abbas v Transport Accident Commission [2015] VSCA 217
Judgment: Leave granted to the plaintiff to commence proceedings for damages in respect of injuries suffered as a consequence of the transport accident on 24 November 2018.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr A Newman | Maurice Blackburn |
| For the Defendant | Mr P D Elliott KC with Ms A Bannon | HWL Ebsworth Lawyers |
HIS HONOUR:
1The plaintiff, Trent Mailei, now aged twenty-six, was injured in a transport accident on 24 November 2018 in traumatic circumstances. He was walking along a footpath with friends in Rye when a vehicle mounted the footpath and struck Mr Mailei, breaking his right leg.
2The plaintiff was taken to Frankston Hospital ICU and intubated, and on 26 November 2018, he had a screw inserted by the on-call surgeon at the hospital in an open reduction internal fixation surgery procedure to fix an intra-articular fracture of the tibia and fibula.
3Following inpatient and outpatient treatment, physiotherapy, and a program of home-based exercise including swimming, the plaintiff has been left with residual pain in his right knee.
4The preponderance of medical evidence indicates that this pain, although neither anticipated, nor as a result of an ineffective operation, is an unintended consequence of his surgery, and relates to inflammation at the site of the internal screw fixing the bone; further, that removal of the screw is unlikely to resolve the pain.
5Mr Mailei seeks leave, pursuant to s93 of the Transport Accident Act 1986 (“the Act”), to commence proceedings for common law damages in relation to the transport accident. The injury relied upon is to the plaintiff’s right leg under paragraph (a) of the relevant definition of “serious injury”.
6In order to succeed, the plaintiff must satisfy the Court that he has sustained a serious long-term impairment or loss of a body function of the right leg within the meaning of sub-paragraph (a) of s93(17) of the Act.
7Mr Mailei impressed me as a witness of truth, who answered questions directly, and frequently made concessions whether or not his answers might have been against his interest. There was no suggestion in any of the materials of any amplification of his symptoms, feigning, or exaggeration.
8At the time of the transport accident, he was a young manual worker in good health. I accept his evidence as to the extent of his accident-related pain which, although manageable by restricting his activities, is ongoing and is subject to increase with activity, including heavy work. Ultimately, it was not in dispute that Mr Mailei suffers from ongoing pain in his right knee, and the trial was conducted on the basis that it was a “range” case.
9Upon consideration of the pain and other consequences of his injury, together with the pecuniary disadvantage brought about by the restriction imposed on Mr Mailei in relation to physical work, I find that Mr Mailei has satisfied the “very considerable” test. I grant him leave to commence a proceeding for common law damages in relation to the injuries he sustained in the transport accident on 24 November 2018.
Background
10The plaintiff was born in 1996 in New Zealand, and migrated to Australia with his family in 2002.
11In terms of occupational history, Mr Mailei has a Year 10 education. He obtained a Certificate IV and Diploma in Community Services (Youth Work), but has never worked in that field. This is partially related to a pre-existing early childhood diagnosis of ADHD, which was treated in childhood with medication, and then, again, in high school with Ritalin, prescribed by a paediatrician, Dr Kras.
12His work background comprises manual roles, including work as a tyre fitter upon leaving school, as a forklift operator and as a labourer for various labour-hire companies. He completed the practical aspects of an electrical apprenticeship, but not the TAFE component, and was terminated from that employment in July 2018. He then returned to forklift driving, and at the time of the transport accident, was about to start another job as a labourer laying pipe.
13Following surgery in November 2018, a follow-up x-ray on 22 January 2019 showed a healing fracture, which reflected the long arc of healing which is to be expected from the significant fracture suffered by the plaintiff. A CAM (controlled ankle movement) boot was fitted at the Outpatient Clinic at the Frankston Hospital, and he returned to weight-bearing on his right leg.
14Mr Mailei’s regular physiotherapist for the period from 21 March 2019 to 9 July 2020, Mr Kay Kim, reported[1] that, following this treatment:
“His pain and discomfort of his (R) leg with weight bearing has been [the] main problem and this has been causing functional dysfunction including (R) leg pain with walking more than 10minutes, moderate to severe latent pain after light running > 5 mins, and latent pain a day after much walking / being active.
He is able to walk and do light running. However, moderate to severe pain follows after the activity. In my opinion, he may have some permanent discomfort with his (R) leg when some amount of lower limb activity is performed.”
[1] Report dated 26 August 2020
15Mr Mailei has returned to work as a steel fitter, but he has suffered a loss of flexibility in the labour market as a result of his injuries. He is prevented from a range of heavy labouring work, and from working a greater number of hours than would otherwise be the case. These restrictions are permanent. He has been unable to continue with forklift driving, and an attempt at a plumbing apprenticeship also failed due to balance issues as a consequence of his right leg injury.
16He is currently managing to work as a steel fitter in a flexible arrangement, on average four days a week, with a supportive employer who is a friend of Mr Mailei’s from high school. I accept his evidence that he has to take days off work regularly, because of the extent and intensity of his pain.
Relevant medical evidence
17Physiotherapist, Mr Tom Nolan, prepared a Functional Capacity Assessment Report dated 18 June 2020 at the request of the Transport Accident Commission (“the TAC”). In Mr Nolan’s view, Mr Mailei was suited to work of a very heavy physical nature, and that there was no contraindication to increasing his then current hours of work as a steel fixer (20 hours per week) and his other activities.
18The tension between the report of Mr Nolan, who conducted his job capacity assessment in June 2020, and the treating physiotherapist, Mr Kim, as to Mr Mailei’s residual capacity, is significant.
19The Nolan report was prepared after a single, detailed assessment in 2020. Mr Mailei has since increased his work as a steel fixer in a supported work environment, taking time off when required, but remains significantly restricted, largely in accordance with the opinion of the treating physiotherapist, Mr Kim (set out above) and consultant surgeon, Mr Graeme Doig (set out below). Although Mr Nolan has similar qualifications as a physiotherapist, the treater Mr Kim saw Mr Mailei once or twice a month for sixteen months. In those circumstances, I prefer the view of Mr Kim.
20Mr Mailei was examined by orthopaedic surgeon, Mr Russell Miller,[2] and occupational physician, Dr James Rowe,[3] who noted that the plaintiff will be restricted from a range of manual work, and that those restrictions are permanent.
[2] Reports dated 17 February 2020 and 9 March 2021
[3] Report dated 18 May 2022
21In Dr Rowe’s opinion:[4]
“Over the last year he has sought different positions and after ceasing his apprenticeship worked as a general labourer and a forklift driver. Unsurprisingly he has not been able to last at any of these positions. He in fact does not have capacity for them.
He is presently working ‘tying steel’. There is no very heavy or significant lifting component involved in that job. I think this is a particularly good effort considering his levels of pain and the condition of his knee and ankle.
As a result of this accident and Mr Mailei’s consequent impairment, there are many occupations requiring unrestricted capacity and physical strength for which he is now not suitable and which in fact represent an unacceptable risk for him.”
[4] Plaintiff’s Court Book 44
22Mr Miller reported that Mr Mailei would require ongoing conservative treatment, that he had developed a transport accident-related Chronic Pain Syndrome, and that the prognosis for the right leg was only fair. He also noted that Mr Mailei was at an increased risk of developing arthritic disease in the right knee and in the ankle, due to the development of a minor plano valgus deformity of the right foot associated with the injury.
23Mr Graeme Doig examined Mr Mailei on 6 April 2022. In his opinion,[5] Mr Mailei suffered from the following permanent consequences of the transport accident:
“Mr Mailei will have a 15 to 20 kgs lifting, pushing and pulling restriction with limited bending, twisting and squatting through the right leg. He should avoid repetitive stair, hill and ladder climbing and squatting. He is unable to kneel on the right side. He has difficulty running and driving for any length of time. All activities [without] these restrictions he will have difficulty continuing to undertake. At the time of the incident, Mr Mailei was working as an Apprentice Electrician which he was unable to return to. Similarly, he had difficulty working as an Apprentice Plumber due to the lower-limb restrictions. He has returned to forklift driving which is not paid to the same extent, therefore is currently trying a spell at steel-fixing, although is finding this difficult.
…
[5] Report dated 13 April 2022
Your client will have the same restrictions pertaining to his social, domestic and recreational activities. He has been unable to return to playing rugby, netball and volleyball. He has difficulty driving for long periods of time.”
24The restrictions identified by Dr Doig are remarkably similar to those the plaintiff says he experiences in a lay sense in his day-to-day work. Dr Doig also noted that “there is no ongoing treatment required”, so the absence of any ongoing treatment appears to be of marginal relevance in this case.
25Mr Vasudeva Pai, an orthopaedic surgeon, examined Mr Mailei for the TAC on 17 August 2022, and noted a loss of terminal flexion in the plaintiff's knee. In other words, Mr Mailei cannot fully extend his knee or can do so only with great pain. He finds that Mr Mailei can cannot run as before. Objective findings included that the quadricep girth is nearly symmetrical, which seems to indicate slight wasting; and comparing the right limb to the left, Mr Pai notes that there is restriction in range of movement and tenderness in the knee. In his opinion, a percentage of patients who undergo the procedure to internally fix the tibia and fibula are sometimes left with residual pain. Further surgery to remove the hardware typically only reduces the level of pain by an amount of 50 per cent.
26Mr Pai records his observations that Mr Mailei did not exhibit any pain behaviour and was cooperative on physical examination.
27While Mr Pai indicates there is no contraindication to working greater hours, I prefer the evidence of the plaintiff’s regular treating physiotherapist, Mr Kim, and consultant surgeon, Mr Doig, in no small part on the basis of the plaintiff’s evidence as to his current level of capacity.
28Further, occupational physician, Dr Rowe, considers the nature of the work in greater detail than Mr Pai. I prefer his evidence to Mr Pai’s, who provides only a very brief analysis, does not go on to describe the nature of Mr Mailei’s work, the nature of any restrictions, what duties Mr Mailei could in fact perform, firstly, or how long into the future he might be expected to do so.
29I do not accept the TAC’s submission that Mr Mailei has deliberately chosen to not work full time. I accept Mr Mailei’s evidence that it is his pain which prevents him from working more hours. The evidence as a whole, including the corroborative evidence of his mother, supports this finding.
30Although Mr Mailei has been diagnosed with an Adjustment Disorder, there has been improvement in his mood state and depression.[6] He has no incapacity on psychiatric grounds.
[6] Report of Dr David Weissman, psychiatrist, dated 26 May 2021
31Most recently, Dr Diane Neill, psychiatrist, in her report to the TAC dated 3 August 2022, made the following findings:
(a) Mr Mailei is suffering from an Adjustment Disorder with mixed disturbance of mood and conduct and traumatic stress features;
(b) the plaintiff’s current condition is a complex of pre-existing Developmental Disorder (ADHD); Alcohol Use Disorder, now in remission; and antisocial personality traits in the context of adverse childhood experiences; and Adjustment Disorder pertaining to the accident.
(c) whilst there has been significant and progressive improvement in recovery over time, his prognosis for further improvement and recovery is fair.
Discussion and findings
32Mr Mailei, having regard to his age, will bear the consequences of his pain for the rest of his life. I was impressed by his attitude towards work in the face of his pain, demonstrating some stoicism. In accordance with the authorities,[7] that should not be held against him.
[7]Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at paragraph [83]; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 per Nettle JA at paragraph [3]
33The TAC submitted that Mr Mailei was not injured to the requisite degree by reference to his lack of medication, save for over-the-counter analgesics when required. I am not persuaded by this. I accept Mr Mailei’s evidence – including as to his lack of enthusiasm for taking medication – and that he has chosen instead to restrict his activity in order to manage his pain, rather than taking opioid-based medication or other prescription medicine.
34Whilst he has had limited treatment following his surgery and initial inpatient follow‑ups and physiotherapy until July 2020, he has received medical advice that there is no further treatment indicated. I do not regard the lack of treatment as inconsistent with ongoing pain and restriction, elevated upon activity including heavy work, which I find to be significant: see Dwyer v Calco Timbers Pty Ltd (No 2).[8]
[8]Ibid
35Mr Mailei has always been dependent on his physical prowess to earn a living. I accept his evidence that he has a restricted earning capacity, now capable of working as a manual labourer only four days a week, with limited hours.
36As an indication of his pre-transport-accident capacity, he was able to work up to 15 or 16 hours a day in a forklift. He is not able to do so now, because it causes pain in his right leg using the accelerator and brake. If he is required to perform heavier duties at his current work as a steel-fixer, the lifting involved in manoeuvring the steel rods results in his leg becoming sensitive, and pain in his leg and ankle. He described the pain as being in his bones, not in the muscles. He takes Panadol, and takes a couple of days off work if it is severe. His boss is understanding, but only because he is a friend.
37In Haden Engineering Pty Ltd v McKinnon,[9] the Court stated:
“As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her]’.”[10]
[footnotes omitted]
[9](2010) 31 VR 1
[10] (Ibid) at paragraph [15]
38The TAC accept that the plaintiff suffers from ongoing pain in the knee, and some restriction, but submit that the consequences that he has experienced do not meet the mark of being “very considerable”. In its view, the right knee injury has been appropriately treated, and the fracture has healed.
39The TAC submitted that in terms of what the plaintiff has retained – being able to perform some chores at home, shop, drive for up to an hour, swim as part of his rehabilitation, dive for fish, play some beach volleyball, and that he is managing to continue employment in a job involving some heavy labouring – that the consequences to him as a result of the transport accident are not serious.
40I reject that submission. Mr Mailei experiences daily pain associated with use of a weight-bearing limb that is dependent on the nature of the activity. He has increased pain after a day at work, and continues to have numbness around his right knee. He limps at times, particularly at the end of the day. His pain is made worse by cold weather, and he is unable to run, kneel, jump or squat without significantly aggravating his right lower leg pain. He continues to experience restricted movement in the knee. His sleep is disrupted, and he often is only able to sleep for two or three hours after work, because he is woken by the pain in his right leg. Whilst he used to be very active and enjoyed playing rugby, netball and weightlifting, he has not engaged in these activities since the accident due to his right leg injury. He continues to go to the gym, but is unable to lift weights involving his leg.
41I accept the evidence of his mother, Pauline Mailei,[11] that her son:
(a) is frustrated with the effect of his right leg injury on his work;
(b) often comes home after work and goes straight to bed;
(c) is unable to vacuum and mop due to living in a two-story house;
(d) is less active. Keeping him active is a way of managing his ADHD;
(e) suffers from poor sleep, and he is often up around the home at night and irritable during the day;
(f) is a young man who has been affected socially by his injury, as he is not able to spend the same amount of time with friends; and
(g) was unable to continue to maintain her garden, which has had to be altered to become low maintenance.
[11] Affidavit sworn 23 August 2022
42The TAC’s reliance upon the report of Professor Ton Tran, orthopaedic surgeon, dated 10 September 2019 seems misplaced. Professor Tran examined Mr Mailei on the one occasion in March 2019 for a second opinion, and, in his opinion, “expected that once [his injury] stabilised, he should not have any impairment in his ability to participate in recreational, social and vocational activities”.[12] This report is from a surgeon who was seen on a single occasion to provide a second opinion in the context of partially-healed fractures following surgery some four months prior. Mr Mailei does not dispute that the union was progressing at that stage, and that the expectation was that he would return to a normal life. Unfortunately, that has not transpired.
[12] Report of Professor Ton Tran dated 10 September 2019
43The plaintiff is a young man of Māori and Samoan heritage, for whom physical prowess is particularly important to his sense of self-worth. I accept his evidence that he loves his present employment as a steel-fixer, but he now struggles with the work due to its heavy, physical nature and is only able to work on average four days a week. His employer does not require medical certificates when his pain does not permit him to work, but only because Mr Mailei works with an old school friend who knows him well, and is accommodating of his pain and restrictions. He described the thought of working in alternative roles as “depressing”, citing examples of work as a rigger and dogman, or office-based roles which do not have a physical component.
44As a young plaintiff, aged twenty-two when injured, the principles in Haden Engineering Pty Ltd v McKinnon[13] and Stijepic v One Force Group Aust Pty Ltd[14] attend. That is to say, he is to be assessed from the perspective of having to endure the consequences of this injury for the remainder of his life.
[13]Supra
[14][2009] VSCA 181
45It is also significant that he no longer has choices in terms of his flexibility within the labour market. He has some aptitude beyond heavy labouring, for example completing a social worker degree, but he has no desire to do so. This is against a background of ADHD and a strong focus on, and love of, physical work.
46The issue of pecuniary disadvantage is not to be determined only by the plaintiff’s employment and income earned between the date of the transport accident and the date of the application before the Court.
47In Abbas v Transport Accident Commission[15] the Court of Appeal stated:
“The fact that the applicant might always be able to find and hold down employment notwithstanding his injuries does not preclude proper consideration of the issue of pecuniary disadvantage caused by a real limitation that has been imposed upon the applicant in respect of other employments for which has demonstrated suitability.”
[15][2015] VSCA 217 at paragraph [37]
48Whilst treatment is not indicated now, which explains his lack of attendance on a general practitioner, particularly as a young man, he may later require surgery. There is an indication of some aggravation of arthritic change in the joint.
49The suggestion by the TAC that he chooses deliberately not to work or otherwise exercise his capacity in his domestic and social context as a young man is not supported by the evidence. I reject it. To the contrary, I find that the plaintiff is doing his best to work and enjoy his life in the face of a significant injury which has very considerable consequences for him.
50Those consequences include:
(a) pain as a daily phenomenon for him. Although his pain is not severe all the time, he restricts his activities in order to restrict his pain;
(b) ongoing permanent work restrictions;
(c) reduced flexibility within the labour market;
(d) since the accident, he has not been able re-engage in contact sports, including rugby and ongoing netball with his family;
(e) he limps when he is in severe pain;
(f) his sleep is interrupted by pain; and
(g) an Adjustment Disorder.
51Now aged only 26, he is faced with these consequences for the remainder of his life, being many decades.
52I have considered the consequences of the transport accident to Mr Mailei, and balanced his impairment consequences against the extent to which he has been able to maintain his involvement in employment, domestic duties and activities of daily living. Overall, whilst finely balanced, I am satisfied that the nature and symptoms of the injury and the consequences of the injury are subjectively serious for Mr Mailei; and when assessed objectively, meet the requisite statutory test when compared with the range or spectrum of comparable cases.
Conclusion
53Leave is granted to the plaintiff to commence proceedings for damages in respect of injuries suffered as a consequence of the transport accident on 24 November 2018.
54I will hear the parties as to final orders including costs.
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