McCarthy v Transport Accident Commission
[2016] VCC 171
•2 March 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-06149
| NIALL KEVIN McCARTHY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 February 2016 | |
DATE OF JUDGMENT: | 2 March 2016 | |
CASE MAY BE CITED AS: | McCarthy v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 171 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – mild acquired brain injury – nature and extent of consequences suffered – impairment to memory and concentration – whether consequences “very considerable”
Legislation Cited: Transport Accident Act 1986, s93
Judgment: Leave granted to bring common law proceedings.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Morfuni QC with Mr N Dunstan | Nowicki Carbone |
| For the Defendant | Mr J Gorton QC with Mr P Bourke | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Preliminary
1 On 10 July 2012, the plaintiff, Mr McCarthy was riding his bicycle through Richmond when a motorcar travelling in the opposite direction turned in front of him. He struck the bonnet of the car and his head then struck the pavement. He may have lost consciousness for a short time.
2 Mr McCarthy was taken to St Vincent’s Hospital and discharged after a short period. He has had very little treatment for the injury but says that despite some improvement, he is left with significant deficits in memory and concentration.
3 Mr McCarthy has resumed employment, working as a carpenter in the building industry, and is able to undertake most of the activities of daily living.
4 This is an application to bring proceedings pursuant to s93(4)(b) of the Transport Accident Act 1986 (“the Act”) for injury suffered in a transport accident on 10 July 2012. The body function said to be lost or impaired is the brain. The application is thus brought under ss(a) of the definition of “serious injury” contained in s93(17) of the Act.
5 Mr McCarthy was the only witness called to give evidence and be cross-examined. Several of his affidavits, an affidavit of his girlfriend, medical and neuropsychological reports and other related material was tendered in evidence. I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be of most relevance and which I have relied upon in coming to the conclusions referred to in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
6 Mr McCarthy is now thirty-five and was born in Ireland. He came to Australia in 2003 and returned again 2007. Since arriving in Australia, he has worked as a carpenter in the construction industry, and that employment has continued through to the present time, with various employers.
7 On 12 June 2011, he was in a motor vehicle accident. He was sitting in the front seat of a vehicle which struck a tree. It is appears it is likely the vehicle was travelling quite fast, in the vicinity of 100 kilometres per hour. He and the driver were taken to the Mount Gambier Hospital and the clinical notes[1] suggest he may have lost consciousness. In evidence, he had a relatively clear memory of the accident including that an airbag opened in his face. He was able to get out of the car, and after a short time in hospital, was told by a nurse there was little wrong with him. He returned to the camping site where he had been before the accident, and then to Melbourne. He resumed work without interruption.
[1]Exhibit 1
8 In late September 2011, he was treated on seven or so occasions by a chiropractor for neck pain arising from the accident. It was noted there was pain in the cervical area with reduced movement.[2] He did not otherwise receive any treatment, nor did he take any medication. The accident was described, albeit somewhat cryptically, in his affidavit.[3]
[2]Plaintiff’s Court Book (“PCB”) 22 – see also exhibit 2
[3]PCB 3 – paragraph 9
9 Mr McCarthy was in a car that was hit from behind on 25 August 2012 and injured his neck.[4] In evidence, Mr McCarthy said it was a small impact and that the tail lights, bumper and boot of his car were damaged.[5]
[4]Exhibit 5
[5]Transcript (“T”) 31 – 32
10 Mr McCarthy was otherwise well and in particular, suffered no memory or concentration deficits. He enjoyed a range of recreational, domestic, social and sporting activities.
The injury and its consequences
11 On 10 July 2012, at about 6.45am, Mr McCarthy was riding his pushbike south along Church Street, Richmond to work, when he came to the intersection with Bridge Road. He was travelling across the intersection with a green light. A car travelling in the opposite direction turned directly in front of him. He hit the car and was thrown forward and to the left. His evidence was that he bounced off the bonnet, his helmet came off, and he hit the ground on his back and banged his head.[6] There may have been a brief loss of consciousness. An ambulance took him to St Vincent’s Hospital.
[6]T24, L14 – 26
12 There was a CT scan of his brain and x-rays of his neck, thoracic spine and right shoulder. No injury other than “soft tissue swelling over the right occiput” was noted.[7] Details from Mr McCarthy’s medical records at St Vincent’s Hospital indicate that the recorded history was that the “car was travelling at approximately 15 klms per hour. The patient landed on the car bonnet then ground, his helmet fell off and [he suffered] injury to his occipital head and pain to his right shoulder.” In Emergency “an initial assessment revealed a Glasgow Coma Scale of 15:15”. He was discharged at 9.39pm.[8]
[7]PCB 18, report of CT scan undertaken at St Vincent’s Hospital Emergency Care Centre on the day of the accident
[8]PCB 20
13 Mr McCarthy later attended at the Acland Street Medical Centre. Dr Ferghal Armstrong, general practitioner, noted, on 15 May 2014, “head injury” and “post concussion syndrome”.[9]
[9]PCB 24
14 To Dr L M Vowels, clinical neuropsychologist and clinical psychologist, as noted in the Neuropsychology Assessment Report dated 22 November 2013,[10] Mr McCarthy reported that he was diagnosed with concussion and believed the post-concussion state lasted for a month. He received treatment from a physiotherapist, chiropractor and myotherapist for the pain in his shoulder and neck.
[10]PCB 34 – 41
15 Reporting to Dr M J Nathar, consultant psychiatrist, Mr McCarthy recalled that he was dizzy and had a tendency to be forgetful.[11]
[11]PCB 60
16 Mr McCarthy claims the following consequences as a result of the injury to his brain.
17 His memory has never been the same since the bike accident. In his first affidavit sworn 18 July 2014, he reported “one of the major problems I have had with my memory is while at work”. He frequently took measurements for cutting materials and when he went to cut, forgot the measurements. He had good days and bad days and on bad days he found this incredibly frustrating and upsetting.[12] There were times when he became confused and forgot the most rudimentary aspects of carpentry. This made him feel very confused and anxious. “I will normally take a break when this happens, go for a walk and by the time I come back, I will normally have calmed down and remember what I am doing.”[13]
[12]PCB 5
[13]PCB 6
18 In his second affidavit dated 21 December 2015, Mr McCarthy reported “I am still having the same problems in relation to forgetting rudimentary aspects of carpentry … . When this happens I feel very confused and anxious.” This no longer happened as much as reported in his first affidavit, but still happened about once a month or once every two months.[14]
[14]PCB 13
19 In his most recent affidavit sworn 16 February 2016, Mr McCarthy reported that in his new role as a leading hand for Eltrax Pty Ltd (since October 2015), he had ongoing difficulties due to his memory problems. He found it difficult to retain information if he was conversing with more than one person at a time. He could not remember what everyone said in a three-way conversation. He dealt with this by talking to one person at a time. He became very frustrated dealing with people including co-workers and bosses. He became more irritable and impulsive and was more easily frustrated at work. Prior to the bike accident, he would rarely argue with his bosses.[15]
[15]PCB 14
20 Mr McCarthy, in evidence, said he was no longer confident of his speed or memory and constantly rechecked his work and did the jobs others felt beneath them:
A:“I put much more attention into detail because of my tendency to not rely on my memory. I have a habit of checking and checking and re-checking, and I will endeavour to if there’s any doubt in my mind about what it is that I’m doing; find a mistake, fix it, find someone else’s mistake, even if it means going over work that ain’t mine, and a big part of what I do is put my attention into that area, because I lack the confidence in - when I’m doing a procedure in case I forget something or I miss something, so I have a tendency to be probably quite meticulous when it comes to things like that, you know. In terms of speed, I wouldn’t be as fast as other people.
Q:You use a notebook and wrote things down?---
A:I do, yeah.
Q:So you’re in a sense more careful and therefore slower?---
A:To some degree, yeah. I also have an attitude to - there are times when things are quiet, I don't have a problem with doing a job that other people would believe to be below them, if that means picking up a sweeping brush, cleaning up an area, stacking material, I’ll keep going doing, I’ll do anything, even if it’s quiet, I’ll do it, whatever it takes to stay busy during the day. I think that they’re the attributes are they stilled to me and - - -
Q:You would have been like that perhaps since – that’s always been your work ethic, is it?---
A:No, no, it hasn't been. I haven’t always been like that. So - - -
Q:Sorry, I misunderstood?---
A:Because I feel that in some ways I’m weak, I try to compensate for it in other areas. So when I’m losing the speed, I make up for it being the guy that always comes in on time, always does the overtime, work through the lunch breaks, you know, never say no to anything asked of me, do the laborious work other people won’t do or they feel it is below them. I will do anything with attention to detail as best I can. Check, re-check, work, you know, and that is due to the fact - the checking over and over is due to the fact that - probably still a lack of confidence sometimes when I do something. I like to go over and over and over.”[16]
[16]T44 – 45
21 Mr McCarthy used a notebook to record details and this was “brilliant”, but he was not as effective as he was before the accident.[17] When he was overloaded with information, he could not record the details in the notebook. He forgot to send a person to a location and had his boss ask him why a task was not done.[18]
[17]PCB 46
[18]T47
22 In Mr McCarthy’s first affidavit, he said he now had real problems remembering things:
“I can forget the most basic of things such as what side of the car I am meant to be driving on. When I’m at home I am always forgetting if I have turned the oven off …. I will forget if I have turned the oven off and have to get up and go back and check. Then five minutes later I will forget again if I have turned the oven off and do it all over again.”[19]
[19]PCB 5
23 He has often left things at home such as his keys and when driving a car he has often forgotten to make a required turn. He has forgotten the name of friends, even those friends he has known for a long time. When socialising, he has frequently forgotten that he has told someone a story before and has found this very embarrassing.[20]
[20]PCB 7
24 In his second affidavit sworn 21 December 2015, Mr McCarthy reported:
“… My memory has never been the same since the bike accident. I am continuing to have problems remembering things on a day-to-day basis. At home I am often forgetting what I was meant to be doing.”[21]
[21]PCB 11-12
25 He has learnt techniques to mitigate these problems. He plans his car journey before he leaves home and he always leaves his keys and wallet in the same spot. He still has a major problem with forgetting people’s names, which is a significant problem for him when he socialises. He has continued to forget that he has told someone a similar story before and still found this embarrassing.[22]
[22]PCB 14
26 In his third affidavit sworn 16 February 2016, Mr McCarthy records he had trouble remembering his new mobile telephone number and remembering other people’s telephone numbers.[23]
[23]PCB 14C
27 In evidence, Mr McCarthy said he now has a system to remember his house keys, but at work, one of his duties was to open the container for tools and lock it in the evening. He has been forgetting to lock it in the evening.[24]
[24]T51
28 His sleep has been very poor. He has often woken up early in the morning, sometimes as early as 2.00 or 2.30am, and found it difficult to go back to sleep. This happened two or three times a week. He did not have this problem prior to the accident.[25]
[25]PCB 13
29 He has continued to ride his bicycle, go to the gym and kickbox. He says he has had trouble remembering the sequence of moves in kickboxing.[26]
[26]T49
30 Mr McCarthy is not taking any medication nor receiving any active treatment.
Medical evidence
31 Dr L M Vowels, neuropsychologist, in her Neuropsychology Assessment Report dated 22 November 2013, noted that Mr McCarthy reported
“… a general feeling that ‘things are not right’ which he explains as being unable to remember things, losing things and not being able to recall what he did the previous weekend. … He now writes notes and uses reminder functions on his phone.
…
… It would appear that he has established a range of memory management strategies but this has not helped with his actual work. … .
… he frequently cannot hold a particular measurement in mind from the time he has taken it to going to the saw bench to cut the timber and hence makes a mistake and wastes that piece of timber. … .”[27]
[27]PCB 34 – 35
32 Dr Vowels conducted a range of tests. She noted he could not easily cope with tasks of divided attention and noted a minimal but significant reduction in efficiency of short-term memory, consistent with Mr McCarthy reporting that he has to write things down much more than before:[28]
“… Mr McCarthy is showing minimal but significant evidence of new impairment of the executive learning ability probably arising from the head injury … .”[29]
[28]PCB 36
[29]PCB 37
33 In her summary, Dr Vowels wrote:
“… it appears likely that Mr McCarthy is displaying minimal but significant symptoms of Acquired Brain Impairment (ABI). Given the clinical findings of concussion immediately post accident the possibility of a subtle mild brain injury resulting from his MVA in July 2012 cannot be discounted especially when the forces causing his other injuries when hit by a car as a cyclist are considered. … the neuropsychological abnormalities identified in this assessment are most likely to have been the outcome of a mild traumatic brain injury.
His verbal memory appears to be minimally to moderately impaired but could be able to be compensated by the use of fairly simple external memory management strategies if he could be encouraged to adopt these. The problems noted in this assessment would be restricted to short term recall as immediate recall and long term recall are well within normal limits albeit somewhat slower and less efficient. His speed of information processing and capacity to deal with multitasking and resisting distraction seems to be extraordinarily slowed compared to background expectations. … .”[30]
[30]PCB 38 – 39
34 Dr Vowels noted that her strong impression was that Mr McCarthy was “a previously well-adjusted young man with a satisfactory career and lifestyle till the point of the accident”.[31] His cognitive problems were substantially stable but she noted that recovery from and Acquired Brain Impairment can be ongoing up to two to three years post injury.[32]
[31]PCB 39
[32]PCB 40
35 In the Neuropsychology Reassessment Report of Doctor L N Vowels dated 14 September 2015, twenty-two months after the previous report, Mr McCarthy reported that:
·“He is concerned by his inability to concentrate
·He does not perform at the old rate and needs to ask his supervisor for clarification several times per week
·He becomes overwhelmed by too much information and when he recognises this, he must write it down to retain the actual requirements
·He finds it difficult to organise his notes and sometimes they make no sense
·He lets other colleagues take the lead in jobs whereas previously he had done this and was almost impatient with those who could not keep up with him
·He gets tired sooner and does not cope with remembering and specifics of tasks when fatigued
·He has to act immediately when he is aware of a task or he will forget
·He cannot cope without the lunch break but often cannot recall what he was doing before he went off [to lunch]
·He uses a number of memory management strategies (phone, computer, calendar and Post It notes).”[33]
[33]PCB 43-44
36 In her summary, Dr Vowels wrote that:
“… it appears likely that Mr McCarthy is continuing to display a minimal but significant symptoms of Acquired Brain Impairment (ABI). Although there is an overall improvement in most test scores indicative of recovery and adaption, I would not agree with Prof. Crowe’s opinion that all alterations associated with the mild traumatic brain injury on July 2012 are fully recovered and the problems he had in the acute phase of recovery are resolved completely. I would reiterate my view that the mild brain injury resulting from his MVA in July 2012 cannot be discounted especially when the forces causing his other injuries when hit by a car as a cyclist are considered.[34]
…
The … assessment in 2015 … showed generalised improvement indicative of recovery as would be expected. However, his ongoing complaints of greater difficulties related to the memory, attention, cognitive endurance and executive abilities are a concern and are consistent with the test profile. … [The brain injury] continues to impact on many aspects of his life albeit certainly not at an overwhelmingly disabling level … .[35]
…
Thus although I do not consider Mr McCarthy to be incompetent in terms of executive function, he has suffered some changes and deterioration in their subtle and harder to measure abilities which impact on the quality of his life at the present and which are likely to prevent him achieving some of the possible scenarios which he may have realistically expected in the future if he had not suffered the ABI when knocked from his bicycle in 2012.”[36]
[34]PCB 48
[35]PCB 48
[36]PCB 49
37 Dr Vowels’ diagnosis remains the same as that offered in 2013. She considered Mr McCarthy had suffered:
“… an acquired brain injury at the mild level and this diagnosis would encompass two dimensions. I believe he has an Amnesiac Syndrome and a mild form of the Dysexecutive Syndrome. … .
As it is now more than three years since the date of the head injury (10/07/2012), I am more negative in my prognosis and consider that further measurable recovery is unlikely although he may continue to make adjustments to accommodate the cognitive deficits. Thus my prognosis for complete recovery would be negative and I would consider that his life, for both occupational achievements and personal quality of life is likely to be compromised albeit, as emphasized elsewhere at the mild level. … .”[37]
[37]PCB 49 – 50
38 Dr Vowels considered he has recovered in social, domestic and recreational activities but not to the extent he would have expected if he had not suffered a head injury.[38]
[38]PCB 49 – 50
39 Dr Vowels thought there to be some restriction in future earning capacity.[39] There would be a restriction in leadership roles.
[39]PCB 50
40 Dr M Nathar, consultant psychiatrist, in a Medical Impairment Assessment report dated 26 July 2014, wrote that Mr McCarthy:
“… has mild psychiatric consequences consistent with the accident … The acquired brain injury would have arisen due to the head trauma. … he has frustration and irritability secondary to his Acquired Brain Injury but this would appear not to have reached pathological proportions.
…
The overall psychiatric prognosis is good from the point of view that any persistent anxiety seem to be at a mild level. … .”[40]
[40] PCB 65, 68
41 In a second report dated 23 November 2015, Dr Nathar diagnosed mild post-traumatic anxiety state and mild Acquired Brain Injury supported by the various neuropsychological reports. He did not change his assessment from the previous examination.[41]
[41]PCB 70g
42 The opinion of Professor Mark Cook, neurologist and epileptologist, in his report for the plaintiff dated 7 March 2015, was that Mr McCarthy:
“… sustained a mild closed head injury, complicated initially by vertigo and later by a disturbance of memory, as well as an injury to the cervical spine and right shoulder. Memory problems persist, as does cervical pain. He has otherwise made a good recovery from his injuries. … .”[42]
[42]PCB 75
43 Professor Cook confirmed that assessment in a further report dated 14 November 2015, and also noted:
“He still considers the major problem is his memory, though he believes he has developed strategies to deal with this much better. This consists of better planning of his activities, and focusing on a single task and seeing it through to completion rather than trying to attempt to have several activities running in parallel. He still complains of forgetting names and phone numbers. The memory issues don’t seem to intrude into his life in any other way.
…
Bedside tests of higher mental flexion once again revealed no abnormality. He can recall 3 out of 3 test objects at one and three minutes, and can count backwards in sevens accurately and quickly.
…
… The situation has improved slightly in that he reports being able to deal with his memory disturbance a little better, but it is still something he is aware of, and to a small degree it affects his work. His complaints seem quite genuine and realistic to me, and there seem no other features to suggest depression or anxiety are components.”[43]
[43]PCB 80 – 82
44 Professor Cook commented on the disparity of opinions between Professor Simon Crowe and Dr Lindsay Vowels, and said there was obviously some difference of opinion between the neuropsychologists, but he was:
“… impressed by the description provided by Mr McCarthy which strikes me as very genuine. I do believe that he has some symptoms related to head injury, and accept that his description of how they interfere with his life is accurate. He doesn’t seem to be attempting to exaggerate these in any way, and certainly recognises that he has developed strategies to deal with them that improved significantly his ability to work.”[44]
[44]PCB 82
45 Associate Professor Richard Stark, neurologist, examined Mr McCarthy for the defendant, and in a report dated 29 July 2015, recorded that Mr McCarthy suffered “a very minor traumatic brain injury” and that his prognosis was excellent.[45]
[45]Defendant’s Court Book (“DCB”) 3
46 Professor Simon Crowe, consulting neuropsychologist, in a report dated 18 July 2015 for the defendant, concluded that Mr McCarthy’s injury was:
“… an uncomplicated mild traumatic brain injury in the context of the current classification of brain trauma. In the normal course of events an injury of this type would be expected to resolve in full over the one to three months subsequent to the injury, and I consider that largely speaking Mr McCarthy’s function is now at the level that would be expected for him preceding his injury. There is perhaps a very mild attenuation of performance on tests of processing speed. However, this would in my view, meet the standards within normal variability of someone of Mr McCarthy’s level of function and I do not consider that this constitutes an ongoing deficit. Certainly, the performance on this occasion is significantly better than that noted previously by Dr Vowels and I would consider that at this point in time Mr McCarthy has made a full recovery from a neuropsychological perspective from the injury he has suffered … .”[46]
[46]DCB 15
47 Professor Crowe believed:
“… Mr McCarthy’s condition is quite stable at that point in time and I believe that his performance is now at the level that he would have been expected to be before his injury.
…
… From an ongoing perspective I do not consider that Mr McCarthy features any identifiable long term neuropsychological deficit that would compromise his function and this is consistent with the fact that he has returned to work in full from the two weeks or so following his injury. He has no ongoing psychopathology of note but does have a tendency towards perhaps the possibility of somatisation, as noted on the Personality Assessment Inventory.
…
… I do believe that now his performances are largely intact and that there is no ongoing deficit in any neuropsychological functioning in the present, perhaps with the exception of a mild attenuation of processing speed.”[47]
[47]DCB 15 – 17
48 Professor Crowe considered the prognosis for Mr McCarthy was good.
49 Doctor Timothy J Entwisle, consultant psychiatrist, in his report dated 14 December 2015 for the defendant, noted that Mr McCarthy’s spirits were better, “generally going fine”. There were no suicidal thoughts nor impulses and he maintained his interest and enjoyment levels. He recorded that Mr McCarthy had said to him that “his memory was now consistent and that … he was not troubled by the lapses previously and that he was now managing is normal level of work and leisure activities”.[48]
[48]DCB 23, 25
50 In the course of his evidence, Mr McCarthy disagreed with this report of his comments. He said he reported that it was not as bad as before.[49]
[49]T57 – 58
Credibility of the Plaintiff
51 Mr Gorton submitted parts of Mr McCarthy’s evidence could not be relied upon. He said the plaintiff ought to have disclosed that he was in a car accident a year before the bicycle accident in his affidavit material. Further, that he was evasive in not accepting that this earlier accident happened at high speed, and as to his possible loss of consciousness.
52 Mr Gorton said Mr McCarthy exaggerated the speed of the impact in the bicycle accident, saying that he was travelling down a hill on his bicycle at a reasonable speed, when the St Vincent’s report recorded the collision speed was 15 kilometres an hour. Further, that in saying that he “bounced” rather than “slid” off the car bonnet, he contradicted earlier histories.
53 I do not find that the failure to mention the earlier car accident affects Mr McCarthy’s credibility. He attended at Mt Gambier Hospital but was given no treatment there and returned to his camping trip. On his return to Melbourne, he returned to work. Despite the note written by Dr Flynn of the Harman Family Chiropractic Clinic,[50] I accept Mr McCarthy was unaware of the speed he was travelling in that incident as he was not driving the car. He readily accepted there was quite a bit of damage to the car, that the vehicle went head on into a tree, and that the car was travelling at a reasonable speed.[51]
[50]T17 – 18
[51]T14 – 15
54 I do not find that Mr McCarthy exaggerated the speed of the bicycle to make the impact appear greater. The 15 kilometres per hour referred to probably related to the car that hit him. Mr McCarthy said he was going at a reasonable speed as he was riding downhill towards the intersection. He did not assert that he was travelling at 45 kilometres per hour as suggested by Mr Gorton in his address.[52]
[52]T68
55 To the contrary, I accept Mr McCarthy as a comprehensively honest witness giving a fair and accurate account of the circumstances leading up to and immediately following his injury. He answered questions responsibly in cross-examination and made concessions I would expect of an honest witness. I do not hesitate in accepting, without reservations, his account of the accident, and the effect upon him of the cognitive deficits, in particular as to memory and concentration.
Permanent – Long term
56 The authorities have defined the latter to mean “for the foreseeable future”. Although there has been some recovery over the years after the accident, I am satisfied that the mental deficits are now permanent and likely to remain for the foreseeable future. That is the view of the neuropsychologist, Dr Vowels, whose opinion I accept. There is no practitioner offering treatment which is likely to improve the situation.
57 In order to satisfy the definition of “serious injury”, the plaintiff must prove the injury and its consequences are both serious and long term.
Submissions on behalf of the Defendant
58 Mr Gorton submitted Mr McCarthy may have lost consciousness in the Mt Gambier accident and that none of the treating neurologists or neuropsychologists have been told about that accident. In these circumstances, it is difficult to be sure that injury is attributable to the July 2012 accident.
59 Mr Gorton said that even accepting there were some moderate deficits, they did not meet the “serious injury” test.
60 Mr Gorton emphasised that Mr McCarthy was not receiving any treatment and there was no general practitioner actively involved in his management. He had been able to resume full-time work in a demanding industry and was able to complete that work effectively.
61 Mr Gorton pointed to the opinions of Dr Stark and Dr Crowe. Dr Crowe in particular said Mr McCarthy was essentially normal, although with very minor deficits. There had been significant improvement since the accident. He said Mr McCarthy had, with the assistance of sensible aids, been able to overcome his residual difficulties, including with that, the aid of a simple notebook. He was able to overcome most problems and when he became frustrated, providing he stopped and rested for a period, the difficulties passed.
62 Mr Gorton said Mr McCarthy was not only able to work full time, but able to ride his bicycle, attend the gymnasium to maintain his fitness and enjoy a social life with his girlfriend.
Conclusions
63 Although the brain injury suffered by Mr McCarthy in the transport accident has been described as mild, the consequential deficits, in particular to memory and concentration, are significant.
64 At the outset there was a significant impairment of memory which improved for a short period after the accident, but this has been stable for some time. Since this, it is not that Mr McCarthy’s memory has improved, but rather he has been able to manage the problem more efficiently and has accepted and adjusted to his condition:
“My perception is I just – I learnt to cope with it a lot better. With the memory, the more worked up I am, the more stressed I am about something that’s happening, the more severe it will be. Having a greater understanding and acceptance of things allows me to deal with it better, in a calmer way and I feel that things are just easier now, easier to deal with now than what they were at the beginning.”[53]
[53]T40
65 A significant issue in this application is the contrasting opinions of the neuropsychologist, Dr Vowels, and Dr Crowe. I prefer the opinion of Dr Vowels, principally for three reasons:
· She has seen Mr McCarthy on two occasions, whereas Dr Crowe has seen him only once. While that might not be said to be significant in certain medical assessments, in my view, it is with neuropsychological assessment, as changes in test results can be better mapped over a period of time.
· Secondly, I was impressed by the opinion of Professor Cook, the neurologist, who examined Mr McCarthy on a number of occasions. He said his complaints were quite genuine and realistic and accepted the extent to which they interfered with his life.
· Finally, and most significantly, the findings by Dr Vowels coincide accurately with the evidence of Mr McCarthy himself. The description of his deficits, in particular as to memory and concentration, are reflected in the neuropsychological assessment and findings of Dr Vowels. If, as Dr Crowe would have it, Mr McCarthy has substantially recovered, and almost at a pre-accident state, then it is difficult to understand how it is he complains of what I accept are significant problems, in particular with memory.
66 I accept that Mr McCarthy has difficulty socialising. He described it as a major problem, in that he forgot the names of people he knew well and was embarrassed by reciting the same story.
67 Mr McCarthy has returned to employment in a relatively demanding job. There has been little interference with his recreational activities. However, as Dr Vowels has said, while the cerebral impairment is mild, the consequences are not. True it is Mr McCarthy has utilised aids to assist, in particular with his work activities, but he is left in frustrating and difficult situations in trying to cope with all of his work activities. He is left further with an embarrassing situation when he meets friends and is not able to remember names and previous encounters. I accept the opinion of Dr Vowels that although it is difficult to quantify, there is some reduction in his prospect of attaining higher levels and promotions in his work which he would otherwise have been able to do. Cerebral function is complex. Even mild impairment can lead to very considerable consequences. I accept that has happened to Mr McCarthy.
68 In those circumstances, I accept Mr McCarthy meets the serious injury threshold.
69 I shall make consequential orders.
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