Malin v Transport Accident Commission
[2011] VCC 1189
•22 July 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-02655
| JOSHUA MALIN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 July 2011 |
| DATE OF JUDGMENT: | 22 July 2011 |
| CASE MAY BE CITED AS: | Malin v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1189 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – impairment of function of the left foot – whether the consequences were serious: section 93(17)(a)
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Lewis SC | Slater and Gordon |
| with Mr J Gorton | ||
| For the Defendant | Ms B Knoester | Transport Accident Commission |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 3 July 2008 by which the plaintiff applies for leave pursuant to section 93(4)(b) of the Transport Accident Act 1986 (“the Act”) to bring a proceeding to recover damages for injuries suffered by him arising out of a transport accident which occurred on 19 November 1999.
2 The application is brought pursuant to section 93(4)(d) of the Act. Subsection (6) provides that a Court must not grant leave under subsection (4)(d) unless the Court is satisfied that the injury is a “serious injury”.
3 The definition of “serious injury” relied upon by the plaintiff is under subsection (17):
"(a) serious long term impairment or loss of a body function."
4 The injury suffered by the plaintiff is a crush injury to his left big toe and forefoot.
5 The following evidence was adduced at the hearing of the plaintiff's proceeding:
• The plaintiff gave evidence and was cross-examined. •
The plaintiff tendered a photograph of the Southern Crosse U/15 Lacrosse team: Exhibit A.
•
The plaintiff and the defendant tendered portions of a joint Court Book which I will describe as the plaintiff's Court Book (“PCB”) for convenience sake, pages 6-21; 22-67; 79-104 and 145.
The Transport Accident
6 On 19 November 1999, the plaintiff alighted from a stationary tram on Riversdale Road, Camberwell. He was subsequently struck by a four-wheel- drive motor vehicle. It ran over his left foot. At the moment of impact the driver of the motor vehicle applied the brakes on the motor vehicle, resulting in the plaintiff's left foot becoming caught under a wheel of the motor vehicle. The driver then reversed the motor vehicle, running over the plaintiff's left foot a second time.
7 The plaintiff was removed from the scene of the transport accident by ambulance. He was taken to the Box Hill Hospital. An immediate examination of his left foot revealed that he had suffered a degloving injury to his left big toe. An x-ray revealed that he had suffered an avulsion fracture to the medial aspect of the base of the distal phalanx of his big toe, with some degree of displacement.
8 The plaintiff came under the care of Mr Peters, plastic and reconstructive surgeon. He was taken into surgery. Mr Peters cleaned and repaired the wound under anaesthetic. He applied a skin graft. The plaintiff was discharged from the hospital on 26 November 1999.
9 The plaintiff was reviewed by Mr Peters on 13 August 2001, which is nearly two years after the occurrence of the transport accident. He did so for reasons which he described in his report dated 8 October 2001:
"It was important to see Josh at this time, as he is having ongoing problems with his great toe, as a result of the injury on 19/11/1999. This is not surprising given the severity of the injury and in fact, he can be expected to have chronic problems with pain in his great toe. Although his surgery to resurface the soft tissues over the back of the first toe has healed well, his pain in the first metatarsophalangeal joint is still an ongoing problem."
10 Mr Peters referred the plaintiff to have a plain x-ray which demonstrated early degenerative changes in his metatarsophalangeal joint. He referred him to an orthopaedic surgeon. It would appear that the plaintiff did not consult that orthopaedic surgeon.[1]
[1] PCB 27
11 The only other treatment which the plaintiff obtained was from Ms Fitzgerald, physiotherapist. She provided the plaintiff with treatment from 6 March 2000 to 11 September 2000 on fifteen occasions. She saw him again on 25 May 2011 for the purpose of undertaking a medico-legal examination.
12 The plaintiff has not had any other medical or paramedical treatment since he last saw Mr Peters and Ms Fitzgerald.
The Consequences
13 Ms Knoester conducted a well structured and searching cross-examination of the plaintiff to demonstrate that about twelve months or so after the occurrence of the transport accident, the plaintiff returned to a level of activity which pointed to the consequences contended for by the plaintiff being modest.
14 What is clear from the cross-examination is that the plaintiff was able to complete his schooling, and then to engage in a range of vocational activities, and eventually the completion of an apprenticeship in carpentry which has led him to full-time work as a carpenter with a firm known as Chatelaine Originals.
15 Ms Knoester essentially submitted that there were a number of characteristics which are often present in proceedings in which plaintiffs have been successful, which are absent here, and therefore, there is a clear demonstration that what the plaintiff has lost is modest and what he has retained and gone on to achieve is significant.
16 Ms Knoester submitted that the plaintiff is working full time as a carpenter on building sites for Chatelaine Originals which involves him in manually moving tools and equipment; lifting and carrying materials; mounting, dismounting ladders and scaffolding, and otherwise being on his feet for a significant period of time each day.
17 Furthermore, Ms Knoester submitted that the plaintiff has suffered no significant interference with his capacity to work since the time he left school. He has not had any absence from his present employment on account of the injury to his left forefoot, nor has he had any medical treatment since he last saw Ms Fitzgerald. Lastly, she submitted that to the extent that the plaintiff relied on an interference with his capacity to engage in sporting activities, that he had filled the void created by the loss of his sporting activities by returning to other activities of a social, domestic and sporting nature, and in particular, she pointed to the fact that he has recently returned to playing ice hockey.
18 Each of these matters was taken up by Ms Knoester in her searching cross- examination of the plaintiff. At the end of the cross-examination I was left with a very strong impression that there was very little controversy produced by the cross-examination, and indeed, the plaintiff essentially agreed with nearly all the matters put to him relevant to his present working life, social life, domestic life, and there being no need for him to obtain any medical treatment.
19 Mr Lewis, on the other hand, commenced his opening and final addresses by referring to the opinions of Mr King, orthopaedic surgeon, and Mr Shannon, orthopaedic surgeon, who provided very similar opinions regarding the nature and extent of the plaintiff's injury.
20 Mr King examined the plaintiff on three occasions on a medico-legal basis. On the first occasion (in April 2005), he found the following on clinical examination:
“Significant painful limitation of movement of the metatarso-phalangeal and interphalangeal joint of the left big toe. The clinical findings are consistent with secondary osteoarthritis changes in the metatarsophalangeal and interphalangeal joints of this big toe.”
21 He then expressed the following opinion:
"This lean 20 year old man sustained what would appear to have been quite severe crushing force to his left big toe and forefoot on 18-11- 99 when the front right wheel of a four-wheel-drive vehicle ran over his forefoot. In addition to the degloving injury there would have been considerable trauma to the articular surfaces of the metatarsal- phalangeal and interphalangeal joints of the big toe consistent with the present clinical findings of significant secondary osteoarthritis change in the joints.
A painful stiff big toe represents a long-term significant problem, particularly to a young adult and is always going to have problems with pain and stiffness in this big toe aggravated by walking and standing. This condition is likely to deteriorate slowly over the next 5-10 years and there is a definite possibility that he may eventually require an arthrodesis of either of the metatarsal-phalangeal or interphalangeal joint of the left big toe sometime in the future. This is a definite possibility that not certainty."[2]
[2] PCB 81-82
22 Mr King subsequently examined the plaintiff in February 2011 and December 2010. His opinion did not change in any material way so that on the last occasion he examined the plaintiff he noted that there had not been any deterioration over the ensuing years leading him to conclude that there was a mild but definite possibility that secondary arthritic change will progress to middle age with a slight possibility that he might require an arthrodesis.
23 When Mr King first examined the plaintiff he took a history from the plaintiff that he was working as a bartender. On the second occasion he examined the plaintiff he was made aware by the plaintiff that he was in the course of obtaining a qualification as a carpenter, and on the third occasion he was aware that the plaintiff had obtained a qualification as a carpenter and was working in that field of activity.
24 Mr King considered that the work which the plaintiff was undertaking in general construction work is something which the plaintiff could undertake so long as he wore suitable work boots. However, he postulated that there was a very strong probability that the plaintiff would experience a slow deterioration in his left forefoot after about five to ten years. He expressed that opinion on the second occasion he examined the plaintiff.
25 Mr Shannon examined the plaintiff on 25 January 2011. The relevant findings on his clinical examination of the plaintiff are as follows:
“He can stand on his heels, but not on his toes.
…
He has 30° of dorsi flexion, but plantar flexion is virtually absent and he has no active movement of the interphalangeal joint, although he has 10° of passive plantar flexion.”
26 He then expressed the following opinion:
“ He has had appropriate plastic surgical repair, but he does have residual and significant loss of movement of both joints of the big toe with the likely development of osteoarthritis.
…
However, the injuries would certainly limit his capacity to run or to play sport.
Nevertheless he has been able to take on the rather strenuous occupation of a Carpenter without too much difficulty.
His claimed difficulty with ladders is entirely consistent.
No further specific treatment is required at present, although it is big toe joints become unduly painful in the long term there is the possibility that he would require a fusion operation.”[3]
[3] PCB 107-108
27 What became apparent to me during the cross examination and re- examination of the plaintiff was that Mr Lewis and Ms Knoester characterised the consequences contended for by the plaintiff from completely opposite positions, yet they were both describing the same consequences. Mr Lewis concentrated on what the plaintiff had lost, and Ms Knoester concentrated on what the plaintiff had retained.
28 I will now turn to the evidence given by the plaintiff. The plaintiff gave his evidence in a very straightforward and uncomplicated fashion. I have no hesitation in accepting that he gave a good account of himself and was entirely truthful when describing the consequences he has experienced since the occurrence of the transport accident.
29 I detected a degree of understatement in the evidence of the plaintiff as he described the consequences. It is very clear from the evidence of Mr Stewart and the plaintiff's father (referred to below) that the plaintiff has been observed to have more difficulty in undertaking his work as a carpenter than the plaintiff described in his oral evidence. It was my distinct impression that the plaintiff is something of a stoic who has met his disability head on and has tried to get on with his life despite that disability.
30 The major interference with the plaintiff's lifestyle is his inability to engage in sporting activities which require the imposition of force on his left forefoot. In particular, he was unable to return to playing lacrosse, and his attempt to take up rowing failed.
31 Prior to the occurrence of the transport accident the plaintiff played lacrosse with the Camberwell Lacrosse Club. He had done so for about four years. He was very proficient, evidenced by his selection in a team known as the Southern Crosse U/15 State representative side to play in a carnival in Adelaide in 1999. A photograph was tendered of the team comprising the plaintiff and fifteen other boys.
32 Mr William Stewart swore an affidavit on 22 May 2011. He coached a team at be Camberwell Lacrosse Club. He coached a second division team. He said that the plaintiff played with the first division team, and he described the plaintiff is a very good lacrosse player. He recalled the plaintiff being selected in a Victorian representative team. He also recalled that after the transport accident the plaintiff ceased playing lacrosse, and in particular, he noticed the plaintiff having difficulty with his left foot.
33 Mr Stewart is a principal in the firm of Chantelaine Originals. It is the employer of the plaintiff. He said he has observed the plaintiff having difficulty hesitating when climbing up and down ladders; limping at the end of the working day and having difficulty when using a shovel digging a trench, all due to the problems with his left foot.[4]
[4] PCB 20-21
34 Mr John Malin, the plaintiff's father, swore an affidavit on 12 May 2011. He describes the energetic manner in which the plaintiff pursued lacrosse and other social and recreational activities. Like Mr Stewart, he also observed the plaintiff having difficulty ascending and descending ladders.
35 The plaintiff attempted to return to lacrosse without success. He attempted to take up rowing with his school, but found that the pressure required through he is left foot was something he could not tolerate.
36 In his affidavits sworn on 4 April 2011 and 11 May 2011, the plaintiff described the interference he has suffered to his lifestyle and his working life. Essentially he described that he has difficulty walking; walking on a beach because of the action of sand under his left forefoot; aching in cold and hot weather; limitation on the footwear he can wear because of rubbing caused by footwear resulting in his tendency toward wearing sneakers and padded and softer leather footwear.[5]
[5] PCB 8 and 13-14
37 The plaintiff has recently taken up ice hockey. He said that he was encouraged to take it up by his mother. He said that because of the nature of the skating boot his left foot is firmly fitted into the boot preventing any independent movement of his toes. He also wears thick socks in order to keep his foot warm and comfortable.
38 Ms Knoester submitted that the plaintiff is quite capable of engaging in a variety of activities which put his left forefoot to a fair road test. She submitted that he is able to engage in an ordinary social and domestic routine now that he has a married. He has been able to go to music concerts where he has stood for significant periods of time, and otherwise there is little to see in his social and domestic routine where the injury to his left forefoot causes any particular telling interference. She also referred to the fact that the plaintiff has engaged in the occasional kick a football and has thrown a basketball to suggest that he is not particularly fearful of undertaking those activities.
39 I now turn to my findings. As I have already observed, I have no hesitation in accepting the plaintiff's evidence in whole.
40 I accept the plaintiff's evidence that prior to the occurrence of the transport accident he was a very proficient lacrosse player, and that if the transport accident had not occurred he would have continued playing lacrosse.
41 I have some familiarity with the game of lacrosse, having seen it played. My general knowledge of it is that it is a game played on a field similar to a hockey field. Players occupy defensive, offensive and running positions on the field using a stick with a net on one end to catch and deliver the ball. It is a running game which, like hockey, requires players to accelerate; to decelerate; to twist, turn and pivot in the course of play.
42 Given the evidence of the plaintiff of the difficulties he has in running and tolerating pressure on his left forefoot, it is understandable why he was forced to give away lacrosse, and why his attempt to take up rowing was so unsuccessful.
43 The plaintiff was fifteen years of age when he suffered the injury to his left forefoot. He was obviously a very keen sportsman. The plaintiff's capacity to engage in lacrosse and rowing was effectively destroyed by the injury. He lost the capacity to engage in those sports through what I consider to be the most important years of his life when he was young, keen, energetic and no doubt enjoyed the companionship of other boys who are similarly inspired to engage in an active outdoor life.
44 I accept the plaintiff's evidence that he has difficulty, at times, standing, walking and tolerating stress and strain on his left forefoot; for instance, when ascending and descending ladders. I also accept that he is limited in the footwear he can tolerate, and that walking barefoot and on sand is both difficult and uncomfortable.
45 The opinions of Mr King, in particular, and Mr Shannon, support the conclusion I have reached thus far. Indeed, the opinion of Mr Peters was prophetic. He considered that the plaintiff would experience real difficulty in the future. He anticipated that the plaintiff would experience chronic problems with his left forefoot, and according to the evidence I have heard from the plaintiff, and from Mr King and Mr Shannon, that is now very much the case.
46 I also accept that the plaintiff has pain in his left forefoot about four to five days per week and experiences numbness in and around the site of the degloving. I accept the plaintiff's evidence that whilst he does not have a persistent limp, that when the pain increases he develops a limp, and that is confirmed by the observations made of him by Mr Stewart.
47 I do not accept Ms Knoester’s submission that I should look for particular characteristics in determining whether the plaintiff has suffered a serious injury or not. For example, I do not accept that the fact that the plaintiff has not had any medical treatment is of any particular moment. It is clear from the opinions of Mr Peters, Mr King and Mr Shannon that there is no treatment available to the plaintiff which will remedy or reduce the pain and consequences he experiences resulting from the injury to his left forefoot.
48 Furthermore, I consider that it is an error to immediately assume that because the plaintiff is working full-time, that the effort involved in undertaking such work automatically discounts there being any prospect of a finding of serious injury. It is, as has so often been said in the authorities, a matter for the trial judge to determining on the evidence objectively.
49 In recent days the Court of Appeal in Sutton v Laminex Group Pty Ltd,[6] referred to characteristics, if present in a plaintiff's evidence, are to be given particular emphasis when determining whether those characteristics point to the consequences being serious. However, I do not read what the Court of Appeal concluded as creating a case of boxes to be ticked in determining serious injury applications, but rather in emphasising the importance (or unimportance) of certain characteristics which, if any evidence, point to the consequences being serious.
[6] [2011] VSCA 52
50 I think the fact that the plaintiff has lost his capacity to engage in sporting activities of his choice since the age of fifteen years; the fact that he has pain in his left forefoot over the majority of an average week; has difficulty with his mobility, and in particular, standing and walking, and has developed a limp in response the pain he experiences, supports the conclusion that he has at least a significant and marked impairment of the function of his left foot.
51 Furthermore, the prognosis of Mr King that the plaintiff will experience deterioration in five to ten years must, as a matter of inference, mean that the function he retains will be further reduced and will continue to be reduced, perhaps leading him to a point where he may require an arthrodesis.
52 I accept the plaintiff's evidence that the work he presently undertaking does place stress and strain on his left forefoot, but he is able to tolerate his present work whereas he would not be able to tolerate heavier construction work nearly as well, and by inference, it would probably lead to accelerated deterioration in his left forefoot. I think the latter point is supported by the opinion of Mr King.
53 If it were not for the fact that the plaintiff suffered the injury to his left forefoot when he was so young then I think I would have dismissed this proceeding. I think the fact that he has endured the consequences which I have just summarised from the age of fifteen years, that is for the last twelve years, and will continue to do so for the balance of his life with further deterioration in his left foot, brings this within the range of an impairment of function with consequences which are serious.
Conclusion
54 On the basis of the foregoing reasons, findings and conclusions, I find that the plaintiff has suffered a serious long-term impairment of function of his left foot and I grant leave to bring a proceeding at common law.
55 After discussion with Counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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