O'Brien v Transport Accident Commission
[2016] VCC 1477
•28 October 2016
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-03012
| FREDERICK MICHAEL O’BRIEN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 6 and 7 April 2016 | |
DATE OF JUDGMENT: | 28 October 2016 | |
CASE MAY BE CITED AS: | O’Brien v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1477 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the left shoulder – nature and extent of damage
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Richards v Wylie (2000) 1 VR 79; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with Mr G Wicks | Maurice Blackburn |
| For the Defendant | Mr P B Jens QC with Ms M S Tait | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This is an application by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to commence proceedings seeking damages at common law for injury suffered in a transport accident which took place on 2 April 2006. On that occasion, the plaintiff was travelling at the allowed speed limit of 100 kilometres per hour when another car approached him, travelling in the opposite direction. The driver of that car made a right-hand turn in front of him, causing the plaintiff to brake and swerve, but was unable to avoid the other car, and the two vehicles crashed at high speed.
2 The plaintiff suffered a number of injuries, including a very bad pain in his chest, ribs and left shoulder. He had pins and needles in the fourth and fifth fingers of his left hand and felt it hard to breathe. Some passers-by assisted him to the side of the road and an ambulance was called. He was taken to the Bairnsdale Hospital, was x-rayed, given some painkillers and was sent home.
3 The injuries relied on in this application are, essentially, impairment to the left shoulder, with resultant problems of pain and sensory difficulties relating to the left arm and left shoulder.
The issues
4 Senior Counsel for the defendant conceded the plaintiff had suffered an injury to his shoulder in the subject accident and had “a hard time in the couple of years after the 2006 motor vehicle accident”. However, it was contended he had made a very good recovery and returned to a variety of activities without treatment.
5 It was contended that the plaintiff had returned to full-time employment between 2009 and 2014 such that his income exceeded that compared to pre accident. It was thus contended that the consequences did not meet the requisite threshold.
6 Further, it was contended that the plaintiff was the victim of an assault in a hotel in January of 2015, causing him to fracture his hip, was hospitalised at The Alfred hospital and then had three months off work. Any medical treatment and or disability, it was contended, thereafter was referrable to that injury.
Legal principles
7 The test for determining whether an applicant has suffered a “serious injury” within the meaning of s93(17)(a) of the Act was prescribed in Humphries & Anor v Poljak,[1] which was subsequently approved by the Court of Appeal in Mobilio v Balliotis.[2]
[1][1992] 2 VR 129
[2][1998] 3 VR 833
8 In Humphries & Anor v Poljak,[3] Crockett and Southwell JJ, stated as follows:
“… the task of a judge confronted with the requirement to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs(17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? Beyond such guidance it is, we think, not possible to go. … .”
[3](Supra) at 140
9 A plaintiff who has suffered a physical injury may develop a mental or psychiatric response to the pain associated with the physical injury. In a case where a plaintiff claims that she has suffered a “serious injury” within subparagraph (a) of the definition, in assessing the seriousness of the impairment of the relevant body function, it is permissible and appropriate for the Court to take into account the development of any psychiatric condition in response to the physical injury when deciding whether the consequences of the impairment of the relevant body function, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as “serious”.[4]
[4]Richards v Wylie (2000) 1 VR 79
The Plaintiff’s evidence
10 The plaintiff was aged forty-five at the date of hearing, having been born in 1971 in Bairnsdale. He left school when he was about sixteen years of age and contended that he had never learned to read or write properly and in fact had to have his affidavits read to him.[5]
[5]Exhibit F, affidavit sworn 14 August 2012, paragraph 2, PCB 2
11 Upon leaving school, the plaintiff worked in various physical occupations, including as a bricklayer’s labourer, concreter’s labourer, vegetable picker and general labourer.
12 Prior to the accident, the plaintiff lived on a one-acre property and enjoyed doing the gardening. He cultivated vegetables and twenty-five fruit trees. He cut firewood and mowed the lawns and dug up old plumbing pipes. He put up and repaired fences and painted inside the house. He also enjoyed playing golf and tennis.[6]
[6]Exhibit F, affidavit sworn 14 August 2012, paragraphs 7 and 8, PCB 3
13 At the time of the accident, the plaintiff was working in a honey factory at Goode’s Honey as a labourer. Four to five hours each day were spent loading and unloading the “hot room” which involved rolling 300-kilogram drums of honey. The rest of the time he mostly did forklift work.[7]
[7]Exhibit F, affidavit sworn 14 August 2012, paragraph 5, PCB 2
14 After the accident, the plaintiff saw his general practitioner, Dr Joshi, on 10 April 2006. He remained unable to work and was in receipt of Transport Accident Commission benefits.
15 The plaintiff recovered from the injury suffered in the accident except for his left shoulder injury. It remained very sore. He continued to experience pins and needles in the fourth and fifth fingers of his left hand.[8]
[8]Exhibit F, affidavit sworn 14 August 2012, paragraph 13, PCB 10 – 11
16 The plaintiff underwent an ultrasound of his left shoulder on 19 June 2006 and was referred to a specialist orthopaedic surgeon, Mr Shane Barwood, who, in turn, sent him for a hydrodilatation of his left shoulder in November 2006.
17 Thereafter, the plaintiff was referred to specialist physician, Dr Peter Blombery, who saw him on 20 February 2007. At the time, the plaintiff was still experiencing pain in his left shoulder and pins and needles in the fourth and fifth fingers of his left hand. He swore that his arm had become blotchy and sweaty. Dr Blombery organised for him to undergo a phentolamine infusion on 31 May 2007. The plaintiff said that it provided some improvement but gradually the pain returned.[9]
[9]Exhibit F, affidavit sworn 14 August 2012, paragraph 15, PCB 11
18 Thereafter, the plaintiff was referred to a specialist neurologist, Dr Ravi Subramanya, in January of 2007, who in turn “tested the nerves in … [his] left arm”.[10]
[10]Exhibit F, affidavit sworn 14 August 2012, paragraph 17, PCB 11
19 Following this consultation, Dr Joshi referred the plaintiff to Dr Stephen de Graaff, a rehabilitation and pain specialist at Epworth Hospital. This occurred on 8 February 2008. At this time, the plaintiff had been taking Tramadol and Celebrex and had been trialled on Epilim and Minipress.[11]
[11]Exhibit F, affidavit sworn 14 August 2012, paragraph 18 – 19, PCB 11
20 Nonetheless, the plaintiff swore he continued to have pain and restriction of movement in his left shoulder, and his left arm was still blotchy and sweaty. He continued to suffer pins and needles in the fourth and fifth fingers of his left hand.[12] He remained out of work and unable to go back to work at Goode’s Honey as he found it just too hard.[13]
[12]Exhibit F, affidavit sworn 14 August 2012, paragraph 19, PCB 12
[13]Exhibit F, affidavit sworn 14 August 2012, paragraph 20, PCB 12
21 Apparently thereafter, the plaintiff became quite depressed and suffered problems in his relationship with his wife. He could not play with his children properly and when he tried activities, the pain in his left shoulder became worse. He had separated from his wife in 2008 and found his depression worsened. He started bouts of increased drinking and started using cannabis.[14] Apparently he was hospitalised at Bairnsdale Hospital for a few days and was placed on psychiatric medication.
[14]Exhibit F, affidavit sworn 14 August 2012, paragraph 21, PCB 12
22 Luckily, by the end of 2009, the plaintiff was able to return to work at Riviera Farms. At first he was just stacking crates of lettuce, spinach and so on. He swore it was not heavy work. He drove a tractor, but worked full-time hours. He was able to cope with the physical aspects of the job. He stated:
“Sometimes it made the pain worse but I was happy to stick with it.”[15]
[15]Exhibit F, affidavit sworn 14 August 2012, paragraph 24, PCB 13
23 After a certain time he did mostly supervising, and stated he could ask others to do the harder work for him. He swore he was not able to do the kind of hard physical work he used to do before the accident.[16] At the time of swearing his first affidavit, sworn 8 August 2012, he was still working in this employment.
[16]Exhibit F, affidavit sworn 14 August 2012, paragraph 24, PCB 13
24 In the financial years 2011 until 2013, he earned $41,000, $57,500, and $67,767 sequentially.[17]
[17]Transcript (“T”) 5, Lines (“L”) 5 – 9
25 Whilst working at Riviera Farms, he swore that:
“I continued to have pain in my left shoulder all of the time. Sometimes the pain flares up and becomes very bad. I get a flare up of pain every day. A flare up can be brought on by trying to do too much with my left arm or stretch it out too far. Sometimes I get a flare up of pain for no reason at all. Sometimes the pain wakes me up when I roll over onto my left arm. This happens about two or three times a week. When I wake up I cannot get back to sleep. I am often tired and underslept. The range of movement in my left arm is better but it is still not very good. The strength in my left arm is nowhere near where it used to be. Sometimes my left arm still gets blotchy but not as often as it used to. My left arm is still sweatier than my right arm. I still get pins and needles in the fourth and fifth fingers of my left hand.”[18]
[18]Exhibit F, affidavit sworn 14 August 2012, paragraph 25, PCB 13 – 14
26 Further, during this period, the plaintiff swore he had not been able to return to golf and could not pick up his children like he would want to.[19] He had stopped taking painkillers because his ex‑wife had tried to overdose on his medication. As a consequence, he threw them all out. However, he stated:
“Sometimes I will take a painkiller when things are at their worst.”[20]
[19]Exhibit F, affidavit sworn 14 August 2012, paragraph 26, PCB 14
[20]Exhibit F, affidavit sworn 14 August 2012, paragraph 27, PCB 14
27 Nonetheless, the plaintiff felt that depression was still a battle from day to day, and he felt down. Although he had stopped taking medication for depression in this period, he found he was drinking too much, and driving was still making him anxious.[21]
[21]Exhibit F, affidavit sworn 14 August 2012, paragraph 29, PCB 14
28 In his second affidavit, sworn 15 March 2016, the plaintiff swore that he continued to have constant left shoulder pain with flare-ups on most days. He swore:
“The pain is worse after using my left arm. Although the arm has not been as blotchy as it has in the past, I still have much more pronounced sweating under my left armpit. I still get pins and needles in my fourth and fifth fingers of my left hand. The range of movement of my left arm remains restricted.”[22]
[22]Exhibit F, affidavit sworn 15 March 2016, paragraph 2, PCB 15a
29 The plaintiff remained anxious and irritable and was referred to a psychologist, Ms Alison Crotty, for six sessions in about mid-2015. He attests that his sleep continues to be troubled, and he is often woken by pain and is “under slept”.[23]
[23]Exhibit F, affidavit sworn 15 March 2016, paragraph 3, PCB 15b
30 Further, the plaintiff swore he has been unable to return to golf because of the left shoulder pain. He loved golf, and was frustrated that he could not play. He took up lawn bowls because he can use his right arm only. He stated that this makes him feel “like an old man”.[24]
[24]Exhibit F, affidavit sworn 15 March 2016, paragraph 4, PCB 15b
31 In about mid-2014, the plaintiff stated he had to give up his work at Riviera Farms. He swore:
“This was generally light work, which was heavily mechanised. It also had static position irrigation, therefore requiring little physical effort from me. I was able to manage activities below shoulder height, but I had ongoing problems with activities above head height. The situation worsened when I was required to construct hot houses. I could not cope with all the above head work and I gave it up.”[25]
[25]Exhibit F, affidavit sworn 15 March 2016, paragraph 8, PCB 15c
32 Thereafter, the plaintiff was able to obtain work at an organic vegetable farm which also was heavily mechanised. He swore:
“My main duties involve driving tractors for weeding between crops. I also do snow pea trellising, but this is with wire which stretched by tractor and all that is required is to clip the snow pea to the wire. This work is lighter than Riviera and does not involve any overhead work. However, if I have to do any repetitive work using my left arm, I continue to have problems.”[26]
[26]Exhibit F, affidavit sworn 15 March 2016, paragraph 9, PCB 15c
33 The plaintiff adduced evidence that his income with this employer annualised at approximately $40,000 per year.[27]
[27]Exhibit A and Exhibit B
34 The plaintiff’s employment at the organic vegetable farm was interrupted because of a fight in a hotel in January 2015 when:
“... a big bloke fell on my left hip and dislocated it. I was in hospital for ten days and had surgery and insertion of metalware in my hip. I was non‑weight bearing for three months after it. I returned to work in April 2015 starting at 20 to 30 hours per week and am currently working full-time. My hip still aches, but I am able to work, but cannot sit for too long.”[28]
[28]Exhibit F, affidavit sworn 15 March 2016, paragraph 10, PCB 15c
35 The plaintiff swore that for some time he went regularly to the McLeod Street Clinic, but he:
“... reached a point where I realised there was nothing that could be done but give me medicine and I stopped taking that after my wife attempted suicide with my medicine. I have not seen any specialists in a long time.”[29]
[29]Exhibit F, affidavit sworn 15 March 2016, paragraph 11, PCB 15c – d
Cross-examination of the Plaintiff
36 The plaintiff was cross-examined as to his role as supervisor while working for Riviera Farms. He stated:
A:“If it was summer time and I had to get irrigation done first, depending on what time the – because you’ve got to run with the river being shut off and work your bores, I was starting at 4.30 in the morning sometimes and - - -
...
Q:... sometimes through to 6 o’clock in the evening?---
A:Yes.”[30]
[30]T35, L8 – 21
37 Further, the plaintiff was asked:
Q:“In your affidavit, you indicated that you have had trouble reading and I am not critical of you for that. Look, this is a matter of interest. Insofar as the history is concerned, for completeness, as a younger person you had some trouble hearing, did you not?---
A:When I was a child, yes.
Q:Yes, and that in turn in the classroom and so on, had a natural effect on your ability to learn. That they did not pick up that you could not hear and of course you could not hear the teacher properly to be able to properly do your studies?---
A:Yes, I – yes.
Q:So that has, in part, led to the difficulties in your later life. And had they picked up this problem earlier you may well have been able to hear the teacher more and had a different sort of academic background, as it were?---
A:Yes.
Q:Because you yourself are aware, are you not, that you have a fair nous for managing practical things such as you are able to do this job at Riviera and become supervisor and to a very satisfactory degree?---
A:Yes.
Q:In other words, the boss is pleased with you. You are supervising a number of people and you could do the job properly?---
Q:Yes.”[31]
[31]T38, L5 – 26
38 Further, the plaintiff was questioned:
Q:“And as you say, you come along and over the summer you are supervising the irrigation and all of that sort of thing. The running of the property?---
A:Yes.
Q:So is it fair to say that you were sort of the hands on runner of the property?---
A:Yes, yes.
Q:And that property would have been able to run, insofar as the growing of vegetables I am now referring to not the business side and the financial backing et cetera, et cetera. But the production side you could have run it?---
A:Yes.
Q:And from go to whoa?---
A:Yes.
Q:Once the seeds arrived and so on, planting et cetera. You knew what was to be done and supervise and get it organised?---
A:Yes.”[32]
[32]T39, L20 – T40, L2
39 The plaintiff also agreed that there was some physical effort involved in his job, but he had difficulty with anything above shoulder height. He replied:
“Yeah, it ached and just started flaring up.”[33]
[33]T42, L14 – 31
40 As to the circumstances of his employment being terminated, the plaintiff was asked:
Q:“The affidavit of two weeks ago says: ‘I could not cope with all the above head work and I gave it up.’ Now that is true isn’t it, you weren’t sacked?---
A:We – well the boss said to me: ‘You’re probably better off to go and find somewhere else to work.’ The way he worded it in the thing was so I could get onto Centrelink quicker because if I did say that I was the one who quit or whatever, he was the one who said: ‘You’re better off to find somewhere else if you can’t do the work’, so.
Q:So if he indicated that you’d been in effect, terminated, that would be better off for you with Centrelink?---
A:Yeah.
Q:You would be able to maintain an income?---
A:Yeah.
Q:Whilst looking for other work. But for you, it was sort of a bit of half and half. It was you felt uncomfortable yourself in that you couldn’t do this overhead work?---
A:That’s right because – well he knew when he put me on that I had a crook shoulder and I couldn’t do much work above my head, he said: ‘It’ll be fine because it’s all around this height you know, waist height type of thing what you’ve got to be doing’, yeah.”[34]
[34]T43, L21 – T44, L9
41 The plaintiff was cross-examined about his injury at the hotel on 15 January 2015. He was asked:
Q:“... I suggest – in brief is that you had gone to the hotel just to have a beer like we all would, that you’d seen a lady friend there of yours talking to other men and you approached and there was some – in effect, some friction between yourself and the other group?---
A:Yes.
Q:Ultimately you would say through no fault of your own, is it fair to say that you got thrown out of the hotel?---
A:Yes.
Q:Then some very large gentleman which you estimate weighing about 150 kgs, fell on you?---
A:Yeah, that was actually in the hotel. ... [W]ell he’s the publican’s son.
Q:Right. Was that in the process of throwing you out?---
A:Yeah.
...
Q:Can you recall, was that the time when you felt your hip go?---
A:When he fell on me, yes.
Q:That led you to being taken to the local hospital but then were you airlifted to the Alfred?---
A:Yes.”[35]
[35]T45, L7 – 29
42 The plaintiff then agreed that he was “out of action” for about three months, non-weight-bearing, and then it took him maybe a week or two to start to walk again.[36]
[36]T46, L1 – 5
43 Further, the plaintiff agreed he had seen Mr Thomas Kossmann, surgeon, with respect to the injuries suffered in the transport accident. The last time was in August 2015.
44 The plaintiff agreed with the history concerning the hip that he had suffered a fractured dislocation of the left hip for which he was transferred to the hospital and was in traction for five days, before being operated on.[37]
[37]T2, L10 – 19
45 Further, the plaintiff agreed that, as at 24 August 2014, he had started to work approximately three weeks ago, at 20 to 30 hours.[38]
[38]T2, L20 – 30
46 The plaintiff further agreed that he was referred for psychological counselling in 2015 by the Windermere Victims of Crime Support Service for assessment. He agreed that he had had two sessions following the assault in the hotel.[39]
[39]T6, L20 – 25
47 As to the plaintiff’s bowling activities, he stated:
A:“I play once at the weekend and I go over there and practice a couple of times during the week.
Q:Yes, just like the old days for instance with tennis or golf?---
A:Except for I’m not using my left arm.”[40]
[40]T10, L7 – 11
48 It was put to the plaintiff that he had seen a psychiatrist on behalf of the Transport Accident Commission on 21 March 2016, a Dr Doherty. It was put that the plaintiff gave a history as follows:
“He told me, in summary, he tends to rise from bed at about 5 am, and commence work about 6 am, and he starts work later at 7 am in winter ... And he told me he completes a full day although he cannot do some things above his head, but otherwise he has a full range of activities without restriction. ... He told me he can place his left arm above his head but cannot reach out a hundred per cent with it. ... ‘I sort of can put it up a bit but yes, it still aches.’ ... He told me he does his own household chores and described his house as messy. ‘Yes, a bit below bachelor standard, I suppose.’ ... He told me that he undertakes his own shopping. He told me he drives a motor vehicle and he drove himself to his examination in Richmond ... [which was] a manual motor vehicle.”[41]
[41]T11, L10 – 27
49 Further, the plaintiff agreed with the following history:
“He told me he had played bowls since about a year after the break up of his marriage. He told me before the transport accident he’d played golf and tennis but found he could not swing a club or hit a ball with a tennis racquet because of his left shoulder problem. ... He told me he has enjoyed thoroughly, lawn bowls. ... He told me it is a good crowd of fellow bowlers and he enjoys it. ... And now he plays pennant competition, Division 1, and is the bowls’ skipper. ... And ... he plays every week.”[42]
[42]T12, L20 – 31
50 Further, as at March 2016, the plaintiff was starting work at 6.00am and working through till about 4.00 or 4.30pm, sometimes through until 5.00 or 6.00pm.[43]
[43]T13, L14 – 16
51 The plaintiff was then asked about the condition of his hip at present, and agreed that while he was on the mend, he could only walk about 100 yards, but now the situation was:
“I can walk pretty good now, yes. ... I reckon I could [walk a kilometre] except for maybe if it’s uphill.”[44]
[44]T13, L21 – 30
52 Further, the plaintiff agreed that with prolonged standing, he gets a bit of an ache, and he always stops and has a couple of rests on the way to Richmond because of the use of the clutch with his left foot.[45]
[45]T14, L1 – 13
53 As to the present effects of the hip injury, it was put to the plaintiff:
Q:“Yes, so that you’re in a situation a month ago, following the traumatic event over a year earlier, that you’d recovered to the point where you could work from around about six o’clock in the morning till four in the afternoon, sometimes longer. In the meantime, at the same time, you could then go and practice for a couple of nights a week with your bowls, and on Saturday you played pennant, pennant bowls, and you’re the skipper of the team in the A-Grade, and I think my learned friend indicated you were the runner-up in the championship, is that right?---
A:Yes.”[46]
[46]T14, L17 – 26
54 Further, the plaintiff agreed that the hip condition causes an ache during the course of the day, as the day wears on.[47]
[47]T16, L26 – 29
55 Further, it was the hip pain that had the plaintiff taking Tramal again, but apart from some medication about four weeks earlier, he stated:
“I don’t take much in the way of medication.”[48]
[48]T17, L10
56 Further, the plaintiff agreed his weekly pay cheque for the last week was $883.50 net, with a gross payment of $1,092.00, and tax of $209.00.[49]
[49]T18, L21 – 23
57 Further, in recent times, the plaintiff has been able to work up to 50 hours a week if required.[50]
[50]T21, L9 – 10
58 Before the hip injury, the plaintiff stated he could not mark the football when having a kick with his six-year-old son.[51]
[51]T23, L12 – 13
59 Later, the plaintiff was asked:
Q:“I suggest to you over the years your arm has improved, and you’ve told doctor after doctor that?---
A:Yes, it has improved but I still – like, I still can’t go swimming with me kids or things like that.”[52]
[52]T32, L23 – 26
Re‑examination of the Plaintiff
60 It was put to the plaintiff:
Q:“My learned friend asked you about your various activities which you do and specifically he referred to bowling. When you bowl, do your symptoms go away or do they stay there?---
A:No, they stay there, yeah.
...
Q:... If you could describe those to us?---
A:Just a sharp pain in the shoulder and sometimes it will last a couple of minutes, sometimes it will be over fairly quickly and other times it can last.
Q:If you do have these flare-ups what do you do with the bowls, do you keep going or do you stop?---
A:If I’m only practising I stop, if I’m playing I just – yeah, I keep going.
Q:What, the same as you work?---
A:Yeah.
Q:In relation to the activities you do with the children, my learned friend described a range of activities. Do you play any form of football with your son or anything like that?---
A:No, I’ve never actually picked the kids up and bounced them around, throw them around. I’ve never given them a piggy-back ride, I’ve never given them shoulder rides. I haven’t done so many things that I probably should have done with them.
Q:What about a bit of a kick with the footy, have you ever done that?---
A:I’ve probably kicked a footy to him, you know, I’ve thrown tennis balls under arm with my right arm to him, and things like that, but.
Q:Do you ever get flare-ups when you engage in those sort of activities?---
A:Occasionally, depending on what I’m doing, like.”[53]
[53]T42, L26 – T43, L9
61 When asked about “sweating” in relation to the assault, the plaintiff stated:
A:“If I – I don’t know if it’s more – I get – mainly I get the sweats and all that under me arm kind of thing if I think a car’s going to run into me or I think something’s going to happen to me. I jar up, I get a lot of pain in the shoulder, and then it will mainly sweat from underneath me left side.
Q:Was that happening before the assault?---
A:Yes.
Q:Did it happen after the assault?---
A:Yeah.
Q:Continue to happen after the assault?---
A:Yeah.”[54]
[54]T43, L17 – 26
62 The plaintiff was then asked:
Q:“Can you describe to us when that might occur from time to time, how often?---
A:It would probably happen at least two to three times a week, yeah. If I’m driving around in town and I think a car’s going to keep coming or they’re a bit late breaking, it will set things off.”[55]
[55]T43, L27 – 31
Medical evidence
63 Dr Naveen Joshi was the plaintiff’s treating general practitioner at the McLeod Street Medical Centre in April 2006. He reported on 5 June 2012 to the plaintiff’s solicitors.[56] The plaintiff first presented on 4 April 2006, claiming he had been involved in a motorcar accident the previous Sunday:
“He mentioned a car pulling in front of him whilst he was going 100km per hour. As a result, his car was written off and his front airbag inflated. At that presentation, he complained of a sore left side to his chest for which he was given oral analgesic and a certificate was written. Over the next couple of visits his left shoulder blade became sore, but he derived benefit from oral analgesia and physiotherapy ... and chiro ... He did notice some worsening of discomfort on rolling honey drums at work and lifting up his child.”[57]
[56]Exhibit J
[57]Exhibit J, PCB 23
64 Further, Dr Joshi related:
“In August 2006, he saw an independent medical assessor namely Prof Marshall who he claims stirred up his shoulder, resulting in tingling in his left middle and ring fingers.”[58]
[58]Exhibit J, PCB 23
65 Further, in November 2006, the plaintiff saw shoulder specialist, Mr Shane Barwood, who prescribed hydrodilatation the following month. The plaintiff was still troubled by tingling in his left little and ring fingers.
66 Thereafter, in early February 2007, the plaintiff saw a neurologist in Traralgon, Dr Ravi Subramanya, for nerve conduction studies in his left arm, which apparently showed mild conduction changes but no motor nerve pathology.[59]
[59]Exhibit J, PCB 23
67 It was also around this time that the plaintiff had sweating down his left arm associated with blotchiness and he was referred to Dr Blombery, who had an interest in Reflex Sympathetic Dystrophy.
68 In April 2007, the plaintiff underwent a phentolamine infusion, which started to work after five days, but only lasted three days.
69 In August-September 2007, the plaintiff was commenced on Norspan patches which helped with his headaches and the tingling in his left arm.
70 In March-April 2008, the plaintiff was still suffering from tingling in his left hand for which Dr Joshi suggested acupuncture, or Dr Blombery suggested he try Dibenyline, but the Transport Accident Commission would not approve either treatment.
71 In March 2008, the plaintiff was referred to a pain specialist at the Epworth Pain Clinic, Dr Stephen de Graaff.
72 At the beginning of 2009, the plaintiff was still seeing Dr de Graaff, Dr Blombery and Professor Mazumdar, psychiatrist:
“[B]ut by March he was beginning to miss appointments because he couldn’t afford fuel to get to the appointments.”[60]
[60]Exhibit J, PCB 24
73 The last appointment the plaintiff had at the medical centre was in May 2009 for a non-Transport Accident Commission-related illness. Dr Joshi’s diagnosis was:
“Reflex Sympathetic Dystrophy affecting his left arm, together with migraine type headaches. Both of these are associated with pain.”[61]
[61]Exhibit J, PCB 24
74 Further, Dr Joshi believed that these injuries were related to the transport accident, but he stated:
“I note that I am not a Pain Specialist, but I do believe [the plaintiff’s] presentation to be genuine.”[62]
[62]Exhibit J, PCB 25
75 Dr Ravi Subramanya, neurologist, reported on 22 January 2007.[63] Dr Subramanya took a history of non-progressive, partial numbness at medial palm and little finger on the left side for the last eight months following a motor vehicle accident in April 2006. He stated:
“He has no motor deficit and there is mild partial sensory impairment at affected area. ...
NCV studies show mild slowing of conduction across elbow. Clinical and electrophysiological changes are too minimal to warrant any surgical intervention at this stage.”[64]
[63]Exhibit G
[64]Exhibit G, PCB 16
76 At follow-up on 14 March 2007, Dr Subramanya stated, inter alia:
“Ulnar nerve related symptoms and signs have shown no change since last visit.”[65]
[65]Exhibit G, PCB 17
77 The plaintiff was seen by Dr Peter Blombery, consultant physician (vascular disease), on 20 February 2007 on referral from Dr Joshi. He complained of a reduction in the range of shoulder movement:
“He said he was gradually improving but approximately four months ago, he saw a doctor for the TAC who apparently pulled his left arm upwards and this caused him severe pain and made him scream. He was then referred to an upper limb surgeon, Mr Shane Barwood, who felt that he may have had a frozen shoulder and arranged for a hydrodilatation. This resulted in some improvement in the range of movement and was performed in November 2006.”[66]
[66]Exhibit K, PCB 26
78 As to his current status, the plaintiff was complaining of:
“... ongoing pain in his left shoulder and arm with quite severe pins and needles in the left hand, particularly in the fourth and fifth fingers as well as in the distal ulnar forearm. The left hand became mottled and blue and swelled excessively but was not hot or cold. There was also increased sweating in the axilla. He could be kept awake by the pain and he said that his most severe pain was present when he awakened in the morning.”[67]
[67]Exhibit K, PCB 27
79 At that time, the plaintiff’s medications included Tramadol three times a day, as well as the anti-inflammatory, Celebrex. On examination, Dr Blombery noted:
“The left hand was a little mottled compared to the right hand but there was no difference in temperature between the two hands. There was excessive axillary sweating on the left side compared to the right side. Reflexes were intact and symmetrical and he could abduct the left shoulder to 100°.”[68]
[68]Exhibit K, PCB 27
80 Dr Blombery’s initial opinion was expressed as follows:
“[Following the transport accident] he had ongoing pain in his shoulder as well as in the arm together with pins and needles in the arm. He noted changes in temperature and colour of the arm and this combination of features of ongoing pain together with autonomic disturbance is diagnostic of complex regional pain syndrome, type 1 or, as it used to be known, reflex sympathetic dystrophy.”[69]
[69]Exhibit K, PCB 28
81 Further, Dr Blombery stated:
“The unique feature of complex regional pain syndrome, type 1, which distinguishes it from these other disorders, is evidence of associated dysfunction in the sympathetic nerve supply to the affected area.”[70]
[70]Exhibit K, PCB 28
82 Dr Blombery initially gave the plaintiff a reducing course of oral prednisolone, as well as Epilim, to modulate pain perception. He thought he should have a phentolamine infusion performed to remove any component of sympathetically maintained pain.
83 Thereafter, he was seen again on 19 May 2007, and again, on 31 May 2007, when he was given 40 milligrams of phentolamine, together with 2 milligrams of intravenous metoprolol.
84 When seen again on 4 July 2007, the plaintiff said that, for a week, there was a good reduction in the level of pain, but then the pain gradually returned to its former level:
“This indicated that there was a significant component of sympathetically maintained pain. I therefore gave him a trial of Minipress, an orally active alpha blocker which should emulate the effects, to some extent, of phentolamine.”
85 Thereafter, the plaintiff was seen on 28 August 2007, where there had only been a minor improvement with the Minipress, and the pain had reverted to its previous level. He was therefore given a trial of a more potent alpha-blocker, phenoxybenzamine, instead. The history related on that occasion was that the plaintiff:
“... continues to wake three to four times each night with paraesthesiae in the hands. At home, he had difficulty in lifting his children. I also gave him a trial of a Norspan patch. This is a patch which releases, in a sustained manner, a synthetic morphine derivative and can provide good background medication for pain.”[71]
[71]Exhibit K, PCB 28 – 29
86 It was Dr Blombery’s opinion at that stage, that the plaintiff would not be able to return to work doing heavy manual work as he was before, and he felt that he would –
“… certainly not be able to do any form of manual work either now or in the future.”[72]
[72]Exhibit K, PCB 29
87 Thereafter, Dr Blombery reported again on 2 April 2012. He had seen the plaintiff on 22 January 2008, where it was reported that matters had not improved:
“The Norspan patch that he had been using appeared to only last for five days in terms of its benefit and he had to use up to 8 Panadeine Forte per day on 6th and 7th days when using the patch in order to gain any pain relief. ...
He had ongoing pain around the shoulder as well as pins and needles in the left fourth and fifth fingers.
It was also appropriate that he was going to attend a pain management doctor at Epworth.”[73]
[73]Exhibit K, PCB 30
88 As at January 2008, it was Dr Blombery’s opinion that:
“[H]e had no capacity for his previous job. He has only done labouring type jobs in the past and he would certainly not be able to do this given the problems affecting his dominant right arm. I therefore felt that he had no capacity for employment at that time and that was likely to continue into the future.”[74]
[74]Exhibit K, PCB 31
89 Dr Blombery reviewed the plaintiff again on 27 August 2015, and reported on 7 September 2015.[75] With respect to the left arm, he said that:
“[H]e had quite severe pain if he tried to abduct his shoulder and the pain became worse after using the arm or pressing it. There were no changes in temperature or colour of the arm. There were often pins and needles in the fourth and fifth fingers of the left hand. He could be woken from sleep if he rolled onto his left shoulder at night. There was no swelling of the arm. He noted that the left axilla sweated more than the right axilla. His only medication was occasional Tramal 50 mg for pain.”[76]
[75]Exhibit K, PCB 32
[76]Exhibit K, PCB 32
90 With respect to the assault in the hotel, Dr Blombery noted:
“He had separately sustained a fractured pelvis in 2015 as a result of an accident when he was assaulted. He remained in hospital for 10 days, requiring open reduction and internal fixation of the fracture. Tramal that he was taking was mainly for pain from the pelvis.”[77]
[77]Exhibit K, PCB 32
91 As to employment, it was noted that in a job where he had to:
“... put up hot houses [he] was unable to do that because of the problems with his left arm and he had to leave that job. More recently he has obtained a job with another farm producing organic vegetables. He works there 30 to 40 hours per week and said there is not very much if any use of the left arm involved. He drives a tractor with his right arm only.”[78]
[78]Exhibit K, PCB 33
92 On examination, Dr Blombery noted:
“[H]e was a pleasant chap who appeared genuine. He took off his jacket without abducting his left shoulder. He was very tender on pressure over the anterior aspect of the shoulder and also medial to the scapula. There was wasting of the left deltoid muscle. In the left shoulder, he could abduct to 110o, flex to 120o, there was 70o of external rotation and 80o of internal rotation. There was a full range of movement of other joints in the left arm. There was increased sweating in the left axilla. There was no difference in temperature or colour between the two arms.”[79]
[79]Exhibit K, PCB 33
93 Dr Blombery’s opinion was as follows:
“[The plaintiff] continues to have features of a pain syndrome affecting his left arm. He has less prominent autonomic disturbance than was present previously but he still has increased sweating in the left axilla and therefore still has features of complex regional pain syndrome type 1 affecting the arm. This is a complication of the injury that originally occurred in April of 2006 when he was involved in a motor vehicle accident.
Fortunately his non-dominant left arm is affected and he is able to do many tasks using his dominant right arm which remains unaffected. He is able to work but doing lighter duties compared to what he was doing before and using mainly his right arm. He would not be able to do any job where he had to use both arms.”[80]
[80]Exhibit K, PCB 33
94 Dr Joshi had also referred the plaintiff to the Epworth Rehabilitation Unit in Richmond. He was seen there by Dr Stephen de Graaff. As at 8 February 2008, Dr de Graaff noted that subsequent to the motor vehicle accident:
“[H]e developed a fulminant shoulder-hand syndrome of the left upper limb.
He has been unable to return to work and has become markedly incapacitated.”[81]
[81]Exhibit H, PCB 18
95 Dr de Graaff noted that an MRI scan of the shoulder had:
“... revealed irregularity of the anterior fibres of supraspinatus and mild fraying the posterior superior labrum of the shoulder. On review of the MRI there is also some evidence of anterior capsulitis.”[82]
[82]Exhibit H, PCB 19
96 Dr de Graaff also noted the plaintiff had been seen by Dr Peter Blombery, “an excellent pain physician”. His history and clinical examination appeared to align with that of Dr Blombery.
97 When seen again in December 2008, Dr de Graaff noted the plaintiff:
“... is still markedly restricted by his left shoulder and arm pain.
Clinically today he has evidence of a shoulder/hand syndrome with some adhesive capsulitis of his left shoulder and sympathetic over-activity in his left hand, with discolouration, sweating, mild swelling and mild decreased dexterity in movement. There is evidence of hyperaesthesia, allodynia and hyperpathia and he certainly describes some dysaesthetic pain in the hand.”[83]
[83]Exhibit H, PCB 21
98 In writing to his treating physiotherapist, Dr de Graaff stated:
“The current medication regime [he] is on is appropriate and I would be reluctant to increase his opioids, i.e. Norspan 20, and occasional Panadeine Forte any further than where it is now. However, the key issue is ongoing activity of his left upper limb to desensitize and minimize the overactivity of his sympathetic nervous system.
As such, it is essential that you continue to be involved in his management, with the plan of increasing the activity around the shoulder region, improving dexterity and desensitizing the left upper limb.”[84]
[84]Exhibit H, PCB 21 – 22
99 In terms of a more current assessment, the plaintiff was seen by Dr Leslie J Roberts, neurologist, on 24 August 2015, who then reported to both the Transport Accident Commission in Melbourne and Maurice Blackburn.[85] Relevantly, Dr Roberts took a history as follows:
“The client stated that he does have pins and needles in the left little finger and the adjacent half of the ring finger. This mainly affects the palmar aspect of the fingers. On cold days these fingers also go white. He did not have any more proximal tingling either in the hand or forearm. He considers that the symptoms now have been stable for some years. I note in your letter that you refer to the middle and ring fingers being affected but he was adamant that this was the little finger and the adjacent half of the ring finger.”[86]
[85]Exhibit P, PCB 92
[86]Exhibit P, PCB 94 – 95
100 With respect to the left shoulder, it was noted:
“He described post injury pain in the anterior aspect of the shoulder and around the shoulder joint. I note that he was diagnosed with a complex regional pain syndrome. He reported that he sweats more in the left upper extremity on the right. Sometimes the pain is worse after exercise. He reported that [he] had an examination elsewhere about 3 hours before I saw him and he had found that painful and his symptoms, particularly with the sweating were worse than before the examination. He reported that his pain was worse with movement and it does restrict him. He has difficulty lifting his arm very much above the head. He gave up golf because of the pain and took up lawn bowling because he bowls right-handed and he has no difficulty with this. He was advised to swim because of a recent fracture of the pelvis but he is unable to lift his arm sufficiently to swim.”[87]
[87]Exhibit P, PCB 95
101 Dr Roberts also referred to the incident at the hotel on 16 January 2015, wherein the plaintiff sustained a fracture of the pelvis and was treated at The Alfred hospital for a period of five days in traction. Relevantly:
“He stated that he now finds it difficult to walk because of pain but he manages to continue with this. As he exercises and ‘warms up’ then the pain tends to settle. If he tries to straighten his left leg out completely then the pain around the pelvis is worse. He stated that he had surgery for the pelvic fractures at the Alfred Hospital. He does find it difficult to climb steps.
He was off work as a result of this but has now returned to part-time work 20–30 hours per week, working in an organic vegetable farm as he was prior to this injury from the alleged assault.”[88]
[88]Exhibit P, PCB 96
102 As to treatment, it would appear that the plaintiff was now seeing a Dr Irvine at the same clinic as Dr Joshi. This was on a monthly basis, largely due to his pelvic fractures.[89] Dr Roberts also related a consistent history with respect to the left shoulder and the treatment from the practitioners referred to above. Relevantly, on examination, Dr Roberts noted:
“He reported a decrease in pinprick sensation over the palmar aspect of the left little finger and the adjacent half of the ring finger extending just onto the hand and there was a more patchy decrease over the ulnar part of the palmar aspect of the wrist. The dorsal aspect of the hand was not affected and the median innervated areas were not affected.”[90]
[89]Exhibit P, PCB 96
[90]Exhibit P, PCB 98
103 With respect to the MRI scan of the left shoulder taken on 25 October 2006, Dr Roberts noted the finding:
“... minor under surface irregularity of the anterior fibers of supraspinatus without discreet tear. Mild fraying of the posterior-superior labrum.”[91]
[91]Exhibit P, PCB 98
104 The plaintiff’s diagnoses were as follows:
“· Left retrocondylar ulnar neuropathy
· Left rotator cuff lesion
· The client has been diagnosed with a complex regional pain syndrome but I was unable to confirm that on the clinical findings today and the situation has improved considerably since that diagnosis was made.”[92]
[92]Exhibit P, PCB 98 – 99
105 As to the matter of causation, Dr Roberts stated:
“The injuries are certainly consistent with the stated cause of the motor vehicle accident.”[93]
[93]Exhibit P, PCB 99
106 As to restrictions, Dr Roberts stated:
“The restrictions relate largely to the left shoulder. This is an orthopaedic injury and further investigation is recommended as outlined above. He would need to restrict lifting and particularly working above his head. However it is more appropriate to obtain an orthopaedic opinion regarding this is not a neurological disorder.”[94]
[94]Exhibit P, PCB 99
107 As to a prognosis, Dr Roberts stated:
“Again I would refer you to an orthopaedic assessment of the left shoulder. It is possible that the ulnar neuropathy may deteriorate with time, but this is not unequivocally the case. If so he might require surgical treatment at the elbow.”[95]
[95]Exhibit P, PCB 100
108 Finally, the plaintiff was assessed by orthopaedic surgeon, Mr Thomas Kossmann, the last occasion being 2 April 2006.[96] Mr Kossmann took a consistent history of the two injuries to the shoulder and to the pelvis following the assault. As to present complaints, he noted:
“[The plaintiff] complained that he has pain in his left arm but also in his left hip and whenever he rolls onto his left side he suffers from pain in the hip as well as his left arm, which disturbs his sleep. He continued to describe a pulling sensation in his left shoulder when he extends his arm. He is only able to walk approximately 100 metres.”[97]
[96]Exhibit O, PCB 80
[97]Exhibit O, PCB 81
109 Further, it was noted the plaintiff was working on a vegetable farm for approximately 40 hours per week prior to the injury in the hotel in January 2015. He had recommenced work in a return-to-work program approximately three weeks before the consultation, and was now working 25 to 30 hours per week. His diagnoses were as follows:
“1. Pain and movement restriction left shoulder
2. Sulcus ulnaris syndrome left side with pins and needles in the fourth and fifth fingers
3. Possible complex regional pain syndrome left upper extremity
4. Cervical multiple spondylosis
5. Fracture dislocation left hip – meanwhile operated and ongoing pain and movement restriction.”[98]
[98]Exhibit O, PCB 84
110 With respect to the left shoulder, it was noted the plaintiff:
“... will require further conservative treatment with pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possibly acupuncture for his left upper extremity condition. He may profit from an MRI of his left shoulder joint. Furthermore, he needs [to] be referred to a pain management specialist for possible treatment of a complex regional pain syndrome. As outlined in my last report, I am of the opinion that he should also undergo a neurological examination with EMG and nerve conduction study for his sulcus ulnaris syndrome. This may then be followed by a decompression of his ulnar nerve at the elbow.”[99]
[99]Exhibit O, PCB 84
111 It should also be noted that Mr Kossmann considered the plaintiff would need further treatment for his left hip condition. Based on his clinical examination, he believed he would require further treatment, either conservatively or operatively, for his left hip. He seemed to have ongoing pain issues in the hip which were suspicious of osteoarthritis of the hip joint. He may require operative treatment in future in the form of left hip arthroscopy and possible total hip replacement should he develop an advancing osteoarthritis in the left hip.[100]
[100]Exhibit O, PCB 85
Conclusions
112 The plaintiff impressed me as a straightforward historian who gave his evidence seemingly without guile. He frankly conceded social issues which may have been to his disadvantage, but were not avoided. I accept Senior Counsel for the plaintiff’s submission that he presents as a stoic individual and is therefore entitled to the presumption referred to by Nettle J in Dwyer v Calco Timbers Pty Ltd (No 2).[101]
[101][2008] VSCA 260
113 It would appear that any pain-relieving medication the plaintiff has recourse to would be referrable to the pelvic injury he suffered as a result of the assault at the hotel in January 2015, and he would also be suffering from the effects of that injury probably as elucidated by Mr Kossmann, referred to above. Clearly, these consequences must be stripped from the consequences suffered as a result of the compensable injury.[102]
[102]Peak Engineering v McKenzie [2014] VSCA 67
114 I accept that the plaintiff, as a result of the transport accident, has suffered ongoing organic pain and limitation of movement as consistently described in the medical histories. It would appear that the injury involves pain emanating from the minor under-surface irregularity of the anterior fibres of the supraspinatus tendon without discrete tear, and mild fraying of the posterior superior labrum, as revealed in the MRI scan of the left shoulder of 25 October 2006. Consequences have included the development of a Complex Regional Pain Syndrome Type 1 which, while florid in earlier times, has appeared to improve with time. It would appear that the injury also involves a neurological sequelae identified by Dr Roberts and by Mr Kossmann, as referred to above.
115 The injury has left the plaintiff with a reduced capacity to perform manual work at above shoulder height with his left arm, which, while not presently transferring into a significant loss of earning potential, nonetheless, would make him less marketable and incapable of the heavier tasks associated with the manual labour occupations to which he is suited.
116 I take into account that the plaintiff is “functionally illiterate”, as submitted by his counsel, and fairly accepted by Senior Counsel for the defendant, particularly with the plaintiff’s acquired learning difficulties because of a hearing defect whilst at school. I also accept that the plaintiff lost his job at Riviera Farms because of an inability to perform manual work associated with the erection of the hot houses. In my view, there is a vulnerability for employment in the future on account of his disability which would be entitled to be placed on the scales in terms of the dicta referred to in Humphries v Poljak[103] with respect to economic consequences.
[103](Supra)
117 In addition, I accept that he has lost the ability to enjoy playing golf and tennis, and, although he has retained an ability to enjoy and succeed at lawn bowls, I would accept his evidence that the loss of his ability to play golf and tennis is significant for him, particularly in the years since the motor vehicle accident and into the near future. I also accept the consequences, as stated by him, of his inability to physically interact with his young children after the transport accident ten years ago, and to be involved in physical activities generally.
118 In all the circumstances, I consider that the consequences following the transport accident are at least “very considerable” and more than “significant” or “marked”, and leave will be granted accordingly to issue proceedings.
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