Matterson v Transport Accident Commission
[2015] VCC 1968
•19 November 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-00794
| BEN MATTERSON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 October 2015 | |
DATE OF JUDGMENT: | 19 November 2015 | |
CASE MAY BE CITED AS: | Matterson v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1968 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – transport accident - consequences of injury – injuries to shoulder and knee – where injuries cannot be aggregated, whether the consequences of either injury were “at least very considerable”
Legislation Cited: Transport Accident Act 1986
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436; Peak Engineering v Victorian WorkCover Authority & Anor [2014] VSCA 67; Dressing v Porter [2006] VSCA 215
Judgment: Leave granted for plaintiff to commence a proceeding claiming damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Mr J Valiotis | Arnold Dallas McPherson as agents for Kells |
| For the Defendant | Mr G Lewis QC with Mr A Anderson | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 On or about 16 January 2007, Ben Matterson was riding a bicycle in suburban Melbourne when it was struck by a motor vehicle (“the accident”). He alleges that he suffered injuries as a consequence of the accident.
2 He seeks the leave of this Court to issue a proceeding to recover damages in respect of those injuries.
3 His right to do so is governed by the provisions of s93 of the Transport Accident Act 1986 (“the Act”). In order to obtain such leave, Mr Matterson must satisfy the Court that he has suffered a “serious injury”.[1]
[1]Section 93(6) of the Act
4 The term “serious injury” is defined in s93(17) of the Act (insofar as is relevant to this application) as “serious long term impairment or loss of a body function”.
5 Mr Matterson alleges that he suffered a serious injury, as defined, to both his left shoulder and his right knee.
6 In order to succeed in his application, he must satisfy the Court that the consequences of one or both of those injuries are serious. In order that an injury be considered to be serious:
(a)the consequences of the injury must be serious to the particular applicant;
(b)those consequences may relate to pecuniary disadvantage and/or pain and suffering;
(c)the question to be asked is whether the consequences of the injury, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as at least very considerable and more than merely significant or marked.[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129 at [140]
7 For the reasons that follow, I am satisfied that Mr Matterson has suffered a serious injury (as that term is defined in the Act) to his left shoulder as a consequence of the accident.
Background
8 Mr Matterson is aged twenty-eight. At the time of the accident he was aged nineteen.
9 He completed Year 12 at secondary school in Queensland in 2005. He was a talented rugby player and it would appear that upon completion of schooling he concentrated on making a career out of his rugby talent.
10 In September 2006, he entered into a playing contract with Melbourne Storm, a team that competed in the National Rugby League competition. The contract concerned him playing for that club in the 2007 and 2008 seasons. The season commences in about March of each year and concludes in September.
11 Mr Matterson is married and has a son aged approximately six months.
Prior right knee injury
12 Mr Matterson had suffered injuries his right knee prior to January 2007. In 2004, he suffered a tear of his medial cruciate ligament. In July 2005 he underwent an MRI scan of the knee which related to an injury to his patella. In May 2006 he injured his knee playing rugby for the Queensland Under 19 team. In August 2006 he suffered an acute posterior cruciate ligament tear of the knee whilst playing for the same team. It was soon after this injury that he signed the contract with Melbourne Storm.
13 On 8 December 2006, he underwent an MRI scan of the knee at the request of Dr Masci, who was the club doctor for Melbourne Storm. That scan was reported as showing:
“1.Medial joint line tenderness presumed secondary to an intense focus of subchondral bone marrow oedema within the central weight bearing surface of the MFC, adjacent to a full thickness chondral fissure and mild chondral thinning and irregularity over a length of approximately 1 centimetre. There is no meniscal tear.
2.Moderate joint effusion.”[3]
[3]Defendant’s Court Book (“DCB”) 12.
14 On 18 December 2006 (approximately four weeks prior to the accident), Mr Matterson’s treating orthopaedic surgeon, Mr David Young, wrote to Dr Masci in the following terms:
“Thank you once again for referring Ben for an opinion on his troublesome right knee. As you are aware his knee gave way when he was tackled again in early August 2006 … After being diagnosed with an acute PCL tear he was treated conservatively for a nine week period but then returned to play the last five games of the Queensland season … On 1 November he returned to pre-season, but when immediately started training (sic) he developed soreness along the medial joint line and again swelling. … MRI scan revealed a PCL deficient knee with a lot of bone oedema in medial femoral condyle.
I recommended arthroscopic evaluation and on the 14.12.2006, we found no proximal PCL with just a big gap in the intercondylar notch. There was a curled up distal stump to the PCL. Thus there had been no spontaneous healing of the PCL, which means there is no functional ligament. … With no functional PCL tissue left, Ben is going to rapidly stretch up his postero-medial, postero-lateral capsule and what is a 2+ posterior draws, now will soon become a three or even 4+ posterior draws if he continues to play. In addition every time he falls in front of the knee he is going to be stretching the postero-medial collateral lateral capsule without this functioning PCL tissue and that will always cause pain.
Thus I believe in the context of the early chondral damage weight bearing and medial femoral condyle, we should be advising a PCL reconstruction prior to returning to competitive rugby. I have recommended using his hamstring tendons, using a double tunnel technique on the femoral side to reconstruct the antero-lateral and postero-medial bundles separately. … This surgery is highly successful if done early before all the secondary restraints are stretched up and there is too much stress placed on the graft. … Of course we can’t guarantee healing of the medial femoral condyle but at least we will slow the degenerative change in this compartment and in a nineteen year old, restore many years of sport virtually otherwise he wouldn’t have (sic).”[4]
(My emphasis).
[4]Plaintiff’s Court Book (“PCB”) 19-20.
15 In that letter, I consider it clear that, shortly before the accident, Mr Young was advising that Mr Matterson should undergo a posterior cruciate ligament reconstruction prior to returning to competitive rugby.
16 In oral evidence, Mr Matterson said his understanding was that the PCL reconstruction was to be done at the end of the 2007 rugby season and that he intended to play competitive rugby that season. That understanding is inconsistent with Mr Young’s letter. No attempt appears to have been made to clarify the issue with Mr Young by way of a further report.
17 I consider it highly unlikely that Mr Young’s advice would not have been conveyed to Mr Matterson either by Mr Young or by Dr Masci.
18 Mr Matterson’s case in relation to his right knee was that his prior injury had been aggravated as a consequence of the accident. Where an aggravation of an injury is alleged to constitute a serious injury, the aggravation or additional impairment must itself involve serious and permanent impairment of the loss of the relevant body function. Mr Matterson must establish the extent of any aggravation caused in the accident. The consequences of that aggravation must be at least very considerable. An analysis must be made of the extent of the impairment of the function of his knee, both before and after the accident for that purpose.[5]
[5]Petkovski v Galletti [1994] 1 VR 436 a [443]; De Agostino v Leatch v Transport Accident Commission (2011) VSCA 249 at paragraph [11]
19 There was no suggestion that Mr Matterson had had prior problems with his left shoulder.
Aftermath of the accident
20 Immediately following the accident, Mr Matterson was able to continue on his journey home by bicycle. He contacted the physiotherapist from Melbourne Storm who came to his home and drove him to Epworth Hospital. He was there admitted but discharged later that day.
21 He was referred to Mr Greg Hoy in respect of an injury to his left shoulder. On 18 January 2007 he underwent an MRI scan of the shoulder which demonstrated that he had ruptured the humeral attachment of the inferior glenohumeral ligament (called an HAGL lesion), apparently a relatively rare condition. Mr Hoy reported that he had damaged both ends of the ligament in what was quite a severe injury for that joint.
22 On 31 January 2007, he underwent an open reconstruction of the left shoulder including a HAGL repair. Following surgery he was reviewed in early March and Mr Hoy reported that the repair had mobilised satisfactorily. It appears that Mr Hoy has not seen Mr Matterson since that time. In his report dated 18 January 2013, Mr Hoy noted that as a professional footballer, he would expect Mr Matterson’s shoulder to be tested quite significantly, and considered that there was a significant recurrence rate where contact sport was involved in relation to any surgical reconstructive procedure involving shoulder instability.
23 With regard to the right knee, Mr Matterson again consulted Mr Young after the accident. Mr Young performed a posterior cruciate ligament reconstruction on 17 March 2007. He reviewed Mr Matterson on 27 March and again on 1 May 2007. It appears that Mr Young has had no contact with him since. Soon after, it appears that Mr Matterson left Melbourne and returned to his home in Brisbane.
24 Following the last occasion he saw him, Mr Young proposed a range of movement and stretching exercises and hydrotherapy. He wrote to Mr Matterson’s Queensland physiotherapist in these terms:
“Once we get a reasonable range of movement I anticipate this being around 12 weeks post-surgery. I would be keen to add in a Pilate’s program. At 12 weeks I would also start power walking and at 16 weeks he can commence jogging, run-throughs at 20 weeks, sprinting at 24 weeks, and at nine months post-reconstruction return to full rugby training.”[6]
[6]PCB 21B
25 I accept that, as at May 2007, Mr Young appeared to be optimistic that Mr Matterson would be able to at least return to full rugby training by late 2007 at which time Mr Matterson would have been aged twenty.
26 In May 2008, he underwent a further arthroscopy of the right knee by Mr Christopher Vertullo, a Queensland orthopaedic surgeon. The findings upon arthroscopy are set out in his report of 14 May 2008, which I shall not set out in full here. It appears relevant that he reported that the posterior cruciate ligament graft was excellent but clinically, once Mr Matterson was asleep, he did not really have any “significant sag with posterior-directed force”.[7] The significance of this is not explained in the report or elsewhere in the evidence.
[7]DCB 4
27 Mr Vertullo reported that he considered that Mr Matterson’s knee would settle down, but as he got older, worsening medial compartment arthrosis could be expected and he may require a valgising opening wedge osteotomy when he was older, depending on the symptoms. He suggested a modified training regime involving low impact activities together with a knee brace.
28 There is no evidence of any further specific treatment to the right knee between then and the present time save for some physiotherapy between mid-2008 and November 2008.
29 Nor does there appear to have been any further specific treatment to Mr Matterson’s left shoulder since January of 2007 save for a physiotherapy attendance in March 2009.
30 The evidence regarding Mr Matterson’s playing of rugby after injuring his knee in 2006 was unclear. Although he signed a contract with Melbourne Storm in September 2006, that contract was to play in the 2007 and 2008 seasons. In fact, there was no evidence that he had ever actually played rugby for Melbourne Storm, before or after the accident. I accept that he had hoped to do so if fit and if selected.
31 In paragraph 5 of his first affidavit he swore that in 2007 he was playing rugby league for Melbourne Storm. The evidence before me was that he played no rugby at all in 2007. Melbourne Storm terminated his contract in September 2007 for reasons that were not disclosed in evidence. He returned to rugby in 2008 and played 8 games with a Queensland club which was described as a “feeder club” for the Gold Coast Titans, another NRL club. He retired from Rugby altogether following those 8 games because he was unfit to continue by reason of the injuries to both his right knee and his left shoulder.
Extent of aggravation of right knee in the accident
32 In his reports of 7 March, 27 March and 1 May of 2007, Dr Young made no reference to Mr Matterson’s right knee being affected by any transport accident. He made no reference to any aggravation or exacerbation of the right knee injury in January 2007. This was despite Mr Young examining Mr Matterson’s knee on occasions shortly before and shortly after the accident.
33 Mr Vertullo examined Mr Matterson’s knee in May 2008. His report dated 14 May 2008 makes no reference to any history of injury or aggravation of injury to the right knee in the accident.
34 In April 2013, Dr Leon Le Leu (occupational physician) examined Mr Matterson at the request of his solicitors. In a report dated 14 April 2013, Dr Le Leu referred to the history he had taken from Mr Matterson on that occasion. His report reads:
“He noted at this point that there was a previous injury to the right knee and, when he went to see the specialist, he could not tell whether the subject accident had done more damage to the knee. …
Mr Young and Mr Matterson could not determine whether the posterior cruciate condition had been worsened by the subject accident.
With the combination of his left shoulder injury brought on by the subject accident and the pre-existing right knee injury which may or may not have been exacerbated by the subject accident, a return to professional football is totally out of the question.”[8]
(My emphases).
[8]PCB 29
35 In April 2013, Mr Matterson was examined at the request of his solicitors by Dr James Bodel, orthopaedic surgeon, who reported:
“He also had a significant knee injury prior to the injury to the shoulder. This was not re-injured in the bike accident.”
(My emphasis).[9]
[9]PCB 38
36 I consider that Mr Bodel’s remark was made on the basis of a history given to him by Mr Matterson.
37 In a TAC Claim Form signed by Mr Matterson and dated 29 January 2007, he stated that his injuries from the transport accident consisted of:
“Dislocation of the shoulder – left side, shoulder pain – left side, laceration(s) to the arm – left side, system or complaint of the hand – left side.”[10]
[10]DCB 17
38 In a further form dated the same date, Mr Matterson listed his injuries from the transport accident as being:
“Abrasions – both hands, left forearm, left hip, both knees. Dislocated left shoulder – confirmed on MRI – disruption of antero-inferior ligamentous complex.”[11]
[11]DCB 27
39 It can be seen that those forms make no reference to any injury to the right knee other than abrasions.
40 In a handwritten report (undated), the Melbourne Storm club doctor, Dr Masci, stated:
“Mr Matterson was involved in a cycling accident on 16/1/07 and sustained an injury to his left shoulder.”[12]
[12]DCB 31
41 Dr Masci made no mention of any injury to the right knee despite having been specifically aware of the prior injury and having been kept abreast of developments concerning the right knee by the treating surgeon, Mr Young.
42 In his affidavit sworn on 6 December 2013, Mr Matterson swore that after the subject accident, he was experiencing a great deal of pain in his right knee and left shoulder. He managed to ride his bike home. Mr Matterson’s oral evidence was that the knee reconstruction was brought forward to March 2007 because by that time he had undergone shoulder surgery and, for that reason alone, was not going to be fit for rugby in the 2007 season. He said his understanding was that, on that basis, there was no reason to delay the knee surgery until the end of the season.
43 There was no evidence that the knee surgery was necessitated by any aggravation of the right knee injury in the accident or that it was brought forward by any such aggravation.
44 Taking all the evidence into account, I am satisfied that Mr Matterson had suffered an injury to his right knee of some significance prior to the subject accident. His treating orthopaedic surgeon Mr Young had stated in December of 2006 that surgery to the right knee was recommended before any resumption of competitive rugby. In his letters to the club doctor, in the post-accident period, Mr Young made no reference to any exacerbation of the right knee condition. In his handwritten report, the club doctor, Dr Masci, made no mention of any injury to the right knee in the accident. The history taken by Dr Bodel is strong evidence that Mr Matterson did not consider there had been any injury to the right knee in the accident or, at best, that it could not be determined whether there had been any exacerbation of the knee injury.
45 In all the circumstances, I cannot be satisfied that there was any injury of significance to the right knee in the subject accident. When comparing his pre-accident state with his post-accident state, I cannot be satisfied that any aggravation of his right knee condition could amount to a serious injury as defined. I certainly could not conclude that the consequences of any such aggravation were more than significant or marked and at least very considerable.
46 It follows that I am not satisfied Mr Matterson’s right knee problems relate to the subject accident and it follows that I am not satisfied that the injury to the right knee is a serious injury as defined in the Act.
Left shoulder
47 It is not disputed that, in the accident, Mr Matterson suffered an injury to his left shoulder as previously described. There is no suggestion that he had suffered any prior symptoms of injury to that shoulder. I accept that the consequences of that injury have been as follows:
(a)He required surgery by Mr Hoy on 31 January 2007, involving an open reconstruction of the shoulder including joint repair.
(b)I accept that he has suffered from continuing pain to the present in the left shoulder which travels from the left side of his neck, over the shoulder region and at times into the left scapular region.
(c)His sleep is affected by shoulder pain.
(d)Activities involving raising his left arm involve additional pain. Activities such as hanging washing on the line are an example.
(e)He avoids as much as possible lifting and using his left arm in his work as a carpenter as a consequence of pain. If he works a long day using his left shoulder, he gets constant pain in the left side of the neck.
(f)He finds it difficult to lift and carry his young son as a consequence of left shoulder pain.
(g)Activities such as connecting his boat trailer to the car cause difficulties with the left shoulder and he tends to use his right arm accordingly.
(h)The injury to his left shoulder has, on its own, prevented him from playing competitive rugby. I accept that Mr Matterson’s rugby was an important part of his life and that his inability to play since 2007 has been a significant loss for him.
(i)He has suffered a loss of strength in the shoulder, the left biceps, the left trapezia, and in his elbow flexion.
(j)His work as a carpenter is not appropriate for him, given his shoulder injury. I accept the evidence of Dr Le Leu that he is unlikely to be able to continue in a manual labouring job involving use of both arms for much longer. Dr Le Leu states:
“He is only getting away with it now because of his youth but his survival in that industry even in the short term is doubtful. His left shoulder injury, even after reconstruction, is not compatible with lifting, pushing, pulling, carrying greater than 5 kilograms with his left hand or arm, or with work with the left hand or arm at or above the mid-breast level. Safe and effective working as a carpenter requires both arms to be in peak condition and that is not the case with Mr Matterson. …
He is no longer capable of performing work of a moderately to highly physical nature but would be able to perform light work …
His incapacity, even just considering the left shoulder, is now going to be permanent, and the appropriate career move now for his long-term health and safety would out of his current field and into a field typified by those mentioned above … .”[13]
[13]PCB 34-35
48 The fields referred to by Dr Le Leu were those of car park attendant, meter reader, truck despatcher, accountant/auditor, business manager, museum guide, research officer, valuer, bank teller, recruitment officer, reservations clerk, social worker, switchboard operator, data entry officer, draftsperson, payroll clerk, proof reader and receptionist.
49 I note that Mr Matterson completed education to Year 12 but, in the decade or so since, he has not been involved in in any form of tertiary education. He has not engaged in employment other than physical and/or manual ones such as rugby and carpentry. Although there was no evidence concerning the likely length of his rugby career, I am well aware that such a career would be of limited duration even assuming no physical injuries. Injuries aside, although I accept that he was a talented rugby player, he had not actually played rugby at the senior NRL level at any time.
50 It is likely that he has the capacity to be retrained for some form of sedentary occupation in the future but the range of occupations open to him in the future has been substantially reduced as a consequence of his shoulder injury.
51 The defendant had Mr Matterson examined by Mr Michael Dooley, orthopaedic surgeon, in May 2015. Mr Dooley opined that a person with regular dislocations of the shoulder would be at risk of developing post-traumatic osteoarthritis in time. He considered nevertheless that Mr Matterson’s risk in this regard would be low. There was no evidence of further dislocations to the shoulder after the accident. Nevertheless, Mr Dooley was of the opinion that Mr Matterson would experience difficulty with a lot of activity at and above shoulder level requiring the use of his left shoulder.
52 Senior Counsel for the defendant submitted that I should take into account that:
(a)There has been little if any specific treatment for the left shoulder injury in the period since Mr Matterson’s surgery, save for intermittent physiotherapy.
(b)There has been no prescription of painkilling medication in respect of it for some years.
(c)As a consequence of his pre-existing knee injury, he was unlikely to have been able to continue playing rugby for any great length of time in and after 2007 in any event.
(d)Mr Matterson’s knee injury, on its own, would eventually have led to him giving up his career as a carpenter for the reasons indicated by Mr Bodel.
53 I note the report from Dr Bodel dated 16 April 2013 where he stated that the continuing symptoms in Mr Matterson’s right knee and left shoulder together caused him to have to give up his career in football.[14]
[14]DCB 8-11
54 It may well be that Mr Matterson’s right knee injury would have led to him ceasing to play rugby within a reasonably short period after early 2007. When Mr Matterson resumed playing rugby in 2008, he continued to have significant problems with his right knee which, I find, on its own, would have prevented him continuing with his rugby career for long. Nevertheless, he may, had the accident not occurred, and in the absence of the shoulder injury, been able to continue playing rugby during the 2007 season. There was no certainty of this.
55 Neither was there any certainty that his rugby form would have led to his selection in the Melbourne Storm team. The mere fact that he had a contract to play would not have ensured selection.
56 His contract was one where he was paid a base salary of $35,000 and additional amounts for each game that he played during the season. He was young player. There was no evidence as to whether his prospects of playing for the senior Melbourne Storm team during 2007 were strong or otherwise.
57 Nevertheless, as a consequence of his shoulder injury, undoubtedly sustained in the subject accident, it would seem that Mr Matterson lost the opportunity or chance of playing NRL rugby during the 2007 season. On the evidence before me his right knee might or might not have stood up to competitive rugby in that year. His claim in respect of loss of earnings from rugby and loss of the satisfaction of playing at the senior level over that period is one of loss of opportunity to do so. Had he been able to play in the senior team in each game for the full season, it is likely that he would have earned something in the vicinity of $150,000 with Melbourne Storm. Even though the amount earned may not have been as high as that, I conclude that his loss of opportunity to do so was potentially of some value.
58 I also accept that rugby was a sport that he obviously played with some passion and enjoyment. It was a very big part of his life.
59 In Dressing v Porter,[15] Ashley JA stated:
“If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences.”
[15][2006] VSCA 215 at paragraphs [47] – [48]
60 Counsel for the defendant relied upon the judgment of the Court of Appeal of Peak Engineering Pty Ltd v Victorian WorkCover Authority and McKenzie[16], where it was held that, in the case of multiple events causing injury or injuries, it was necessary for the Judge to “disentangle” the consequences of the respective injuries. Having done so, the Judge was required to decide whether the consequences attributable to the subject injury satisfied the statutory test. A Court is bound to identify, and exclude, the continuing consequences of any non-compensable injury. At paragraph [24] of the judgment, the President stated:
“In a case of this kind, where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury.”
[16][2914] VSCA 66
61 I am satisfied in respect of the plaintiff’s rugby career that his shoulder injury alone was such as to prevent him playing rugby during the 2007 season. The combined consequences of the injury to his shoulder and knee led to him being unable to play rugby after the 8 games played in 2008. I am not satisfied that Mr Matterson has established on the balance of probabilities that he would have been able to play on after the January 2008 accident regardless of the occurrence of the shoulder injury. Nevertheless, I accept that the inability to play the 2007 season did result in a loss of opportunity to earn reasonably substantial income in that year. The potential quantum of that loss would obviously have depended on the number of senior games that he played in that year and that would in turn depend upon many matters – the form displayed by him, the form displayed by other players competing for his position, whether or not he suffered any other sundry injuries, and whether his right knee held up as Mr Young and the club doctor had hoped.
62 Further, I accept that the loss of opportunity also extended to the loss of considerable enjoyment and satisfaction to him in playing rugby in that season whether for Melbourne Storm or some other lesser team.
63 I am satisfied that the consequences of the shoulder injury, as set out above and when looked at independently of any injury or symptoms from the right knee, are such as to be properly described as more than significant or marked and as at least very considerable.
64 Mr Matterson is a relatively young man. I consider that the lifestyle to be led by him in the future will be a far more reserved and conservative one than would have been the case absent his shoulder injury. I accept that his symptoms of ongoing pain in the shoulder are substantial and likely to continue indefinitely. I am able to come to that conclusion independently of any symptoms suffered in relation to his right knee. In doing so, I do not take into account his inability to play rugby after 2008. It is my view that such activity would, in all likelihood, have been prevent by reason of the right knee injury.
65 Whilst I accept that Mr Matterson has had little medical treatment in recent years, I do not consider this is determinative of the pain experienced by him. I consider it likely that he is of a stoic constitution. His evidence was that he did not like taking medication and puts up with the pain. He was not challenged concerning that evidence.
Conclusion
66 For the reasons expressed above, I am satisfied that Mr Matterson has suffered a “serious injury” as that term is defined in the Act.
67 Accordingly there will be leave for him to commence a proceeding claiming damages in respect of injuries sustained by him in the transport accident which occurred on or about 16 January 2007.
68 I shall hear the parties in regard to consequential orders sought.
- - -
0
3
0