Oxnam v TAC
[2010] VCC 470
•12 May 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES-COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-00626
| MURRAY OXNAM | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 and 28 April 2010 |
| DATE OF JUDGMENT: | 12 May 2010 |
| CASE MAY BE CITED AS: | Oxnam v TAC |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0470 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – Section 93 – serious injury –cognitive impairment- headaches.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A.J. Keogh SC and | Clark Toop & Taylor |
| Mr A.E.Hill | ||
| For the Defendant | Mr W R Middleton SC and | Solicitor for the Transport |
| Ms R N Annesley | Accident Commission |
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HER HONOUR:
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to section 94(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injury suffered by him arising out of a transport accident on 4 December 2002 (“the said date”).
2 Section 94(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of serious injury relied upon by the plaintiff is under section 93(17)(a) claiming “a serious long term impairment or loss of a body function”.
4 The body function relied upon by the plaintiff in this case is the function of the brain.
5 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.
6 The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category: see Humphries v Poljak [1992] 2 VR 129, at 170, and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. See in particular Chernov JA, at paragraph 29.
7 The plaintiff relied on two affidavits and gave viva voce evidence. He was cross examined. Mr Jones, the plaintiff’s brother-in-law, swore an affidavit on
DRAFT
30 March 2010. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
8 The plaintiff is aged forty nine, having been born on 23 October 1960. He completed Year 10 and then undertook a four year plumbing apprenticeship.
9 In 1980, the plaintiff commenced his own business, Chantic Pty Ltd, which continues trading under the name of Platypus Plumbing (“the business”). He is the only shareholder.
10 Prior to the said date, the business used to float between ten and fourteen employees, four or five of whom were plumbers and the rest, apprentices and general labourers.
11 The business has always been relatively good and done quite well and the plaintiff works hard at it. The business has had its ups and downs off and on over the years. Some time prior to the said date the business was struggling when builders who owed it money went broke and did not pay their bills.
12 The plumbing work before the said date was mainly in relation to nursing homes, which were the plaintiff’s fortè. The business had been quite successful. In the financial year ending 2002, the total trading income was $658,872.00, of which $312,861.00 was trading profit.
13 The plaintiff deposed that prior to the accident his health was generally good; he was fit and strong, mainly because of a lot of physically demanding work. However, he had a problem with his left shoulder in 1978 and had dislocated this shoulder many times since. He also had right shoulder problems having first dislocated his right shoulder in 1998 and suffering further dislocations since that time.
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14 In addition, the plaintiff experienced some low back pain in the course of his plumbing work in about the middle of 2001. He had treatment in relation thereto, including chiropractic treatment, myotherapy and treatment from his general practitioner. Surgery was also suggested by Mr Miron Rogers, neurosurgeon in 2002, after conservative treatment had not been successful, but the plaintiff declined. The plaintiff was “not planning on someone taking a knife to him,” having been told by a friend of unsuccessful back surgery.
15 The plaintiff “gave his back twelve months to come good and it did” although he continued to have some back problems. Whilst his back was giving him trouble he did not play golf or baseball.
16 The plaintiff agreed that prior to the said date he had had a few issues with drinking but he did not believe he had a drinking problem. The history taken by Dr McColl on examination in December 2002 that the plaintiff had a history of alcohol abuse, financial hardship and physical back pain, resulting in binge drinking “was in the ballpark but was not entirely true.” Prior to the accident the plaintiff’s wife had a problem with his drinking.
17 “By all means” his marriage had been affected by the accident injury and pre- accident his marriage problems were no different than anyone else’s. He was quite happy. The plaintiff agreed that prior to the said date, “live issues” were his back and alcohol but he still functioned.
18 The plaintiff deposed that despite his physical problems before the said date, he was generally fit, healthy and able to lead a busy, active, fulfilling life.
19 On the said date the plaintiff suffered injury when the land rover (“the vehicle”) in which he was travelling as a passenger struck a guardrail at high speed (“the accident”). As a result of the accident, the vehicle began to roll and the plaintiff was ejected from it, landing on the side of the road close to the edge of a fifteen foot drop down an embankment. The vehicle came to a rest on top of him and he was trapped from the chest down. The plaintiff was left
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unconscious on the side of the roadway pinned underneath the vehicle.
20 Earlier that night the plaintiff had attended a local hotel but he can recall nothing further until regaining consciousness under the vehicle.
21 As a result of the accident, the plaintiff suffered an acquired brain injury, loss of consciousness and a fractured skull. He also suffered lacerations to his face, head, scalp, right ear and right eye. He suffered an injury to his neck, a further dislocation of his left shoulder, multiple fractured ribs on the right side, bruising to his lungs. He also suffered psychological injury.
22 The plaintiff was taken by air ambulance to the Alfred Hospital where he was admitted to intensive care. He was transferred to the Trauma Unit on 5 December 2002; however, he developed a severe occipital headache during that time and had to be treated with an occipital nerve block.
23 The plaintiff was finally discharged from the Alfred Hospital into Ivanhoe Manor Rehabilitation Centre (“Ivanhoe”) on 10 December 2002. He then stayed at Ivanhoe until 18 December, when he was discharged into the care of his local practitioner, Dr McColl, and his treatment also continued via the Alfred Hospital outpatients.
24 The plaintiff had to reapply for his drivers licence because he had suffered a closed head injury in the accident. He thought he first booked in for the test in about December 2002. He failed the test the first time because the instructor said he had not been looking in his rear vision mirror enough, which he disputed. He passed the second test and has been driving since early 2003.
25 In early 2003, the plaintiff tried to return to work because he felt he had to in order to maintain his business. However, at that stage he was only able to manage some supervisory duties and because of his accident injury he had to be driven to the worksite by another employee or by his ex-wife, Marilyn.
26 The plaintiff thought physically he went back to work about four weeks after
DRAFTdischarge from rehabilitation.
27 At around that time the plaintiff commenced physiotherapy treatment, however, he continued to suffer severe headaches and neck pain. He continued to experience pins and needles in both hands and occasional sharp pains in his ribs.
28 The plaintiff underwent a CT scan of his brain in early 2005 because of persisting headaches and instances where he had apparently become aggressive when drinking alcohol. He was also prescribed anti-depressants for a couple of months when his marriage broke down.
29 As a result of the accident, the plaintiff continues to suffer persistent pain, particularly headaches, which occur virtually daily. It is a very rare day when he does not suffer a headache. The headaches normally centre on the left side of the back of his head. They can be severe and debilitating and often involve a sharp stabbing type pain. They can be brought on, and when present, aggravated by looking up and by movement of his neck. The plaintiff normally treats the headaches with analgesic medication, massage, if possible, and rest.
30 In cross-examination, the plaintiff described sharp pains to the back of his left ear at the time he gets headaches. The headaches are generally on a day-to- day basis and their start time varies a little bit. He has had the odd day where he does not get a headache. Generally the headaches last for two or three hours but he has had longer ones. The shortest duration would be half an hour, when he has a Panadol which then kicks in. If he does not take Panadol the headaches last for two or three hours. Panadol works ninety per cent of the time.
31 The plaintiff takes up to eight Panadol a day but most days he takes four tablets. Taking that amount of Panadol is better than being in pain. He has not been prescribed any medication by his doctor for his headaches.
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32 The plaintiff is able to continue working with the headaches taking Panadol. His workload sometimes can bring the headaches on a little bit. There are some good days and bad days. On worse days Mr Jones has had to pick him up from home to take him to work, whereas he would normally drive himself. The plaintiff has had an odd couple of days off because of headaches since returning to work after the accident. He “sticks at it.”
33 In terms of treatment for his headaches, the plaintiff has tried to get some help and see the right people and was told there was not much they could do about it. He had a head scan and then “soldiered on and does what he does.”
34 In re-examination, the plaintiff explained he took multiple Panadol because the first lot he takes often do not work. In the morning he wakes up with a pretty bad headache. When he looks to the right it triggers a headache. It is “like it is connected to his eyeballs so he tries and stays focussed, not looking up.”
35 The plaintiff agreed he is not a person who goes to the doctor a lot and agreed that he had only gone to the doctor a couple of times for headaches since the accident.
36 Further, as a result of the accident, the plaintiff continues to suffer various problems with thinking and memory. His short term memory is now shocking and he needs to use a diary on a daily basis. In contrast, prior to the accident he was able to manage a busy plumbing business, quite often supervising multiple large jobs using a diary spasmodically. Diaries he did use were pretty empty, not like they are today when he relies heavily on a diary. The plaintiff “mucked up” the diary dates for his attendance at Court. He runs a notepad in addition to a diary as he forgets all the time what he has to do.
37 In addition, since the accident, the plaintiff has experienced problems trying to maintain concentration and he believes his thinking has slowed. He has difficulties completing the administrative side of his business and has particular problems doing more than one task at a time.
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38 The plaintiff also suffers mood swings and has become impulsive. He still experiences occasional dizziness and he has a ringing in his ears from time to time, especially at night. He continues to suffer psychological problems. He thought he was going to die when he was trapped under the vehicle. He also recalls part of the air ambulance ride and arriving at the Hospital. The scarring on his right chin and right side of his scalp remind him of the trauma of the collision and his pain.
39 Since the accident, the plaintiff has become a very nervous passenger and is overly vigilant when travelling in a car and generally startles easily. In addition, he finds he thinks about the accident and the consequences far too much. Transport Accident Commission advertisements and the few times he has returned to the accident site also upset him.
40 More generally, the plaintiff is still depressed about the physical capacity he has lost as a result of the accident; he is miserable that he is in constant pain and he remains worried about his future prospects, particularly his financial prospects.
41 The plaintiff’s personal life has been greatly affected by the accident. His marriage basically went downhill thereafter. Whilst he experienced some personal difficulties before the accident, particularly in relation to his first marriage and some problems drinking too much, in the time leading up to the accident he described his marriage as secure and his relationship as happy and rewarding. In contrast, as a result of his accident injuries together with the financial pressures created by an inability to work effectively, a lot of stressors and strains were placed on the marriage which eventually failed.
42 The plaintiff is no longer as social as he was previously and prefers to stay at home. Whilst he worked a lot before the accident and did not have time for hobbies, now when he has spare time he is just so tired, any time he gets he wants to relax and “just chill out,” because of his headaches and he does not
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have any stamina.
43 The plaintiff continues to suffer from constant pain and stiffness in his neck and he has problems sleeping. He has had ongoing left shoulder problems.
44 The plaintiff is still under the care of Dr McColl at Rosanna. There is nothing that can be done about the plaintiff’s memory problems and he just needs to try and do the best he can to make sure he writes things down.
45 The plaintiff deposed his work has been severely affected by his injuries but he has tried to work hard to succeed in his business and he cannot now work on the tools like he did before.
46 Last year the business generated sales of $1.1 million from general plumbing, commercial, industrial and domestic. In years prior to the accident where there were sales in excess of $1 million, the plaintiff explained a number of jobs came in at the same time and he worked hard. He did not think “there was anything special out there that made it happen.” The nature of the industry was that “it was a little bit up and down.”
47 Presently the business has eight or nine employees, three plumbers and three apprentices. The number of staff depends on the amount of work.
48 Since the accident the business has been refined and has developed. The plaintiff was approached by a consultant in Melbourne to work on a job in Singapore. This South East Asian job was a “once off”, and involved building a slurry treatment plant in Changi in 2008.
49 In cross examination, the plaintiff agreed he had travelled extensively in Asia mainly for work. In November 2004, he went to Phuket for a couple of weeks for a holiday. In August 2007, he went to Singapore for four days for business. On 5 September 2007, he had five days in Fiji – half business; half pleasure.
50 On 6 December 2007, he went to Singapore for business for four days. On
DRAFTseven occasions in 2008, he went to Singapore for business for periods for a couple of days to a month. Whilst there, he assisted on site and had a partner doing ground work behind the scenes. The plaintiff was predominantly doing the earthworks and the plumbing on the treatment plant.
51 The hands on work commenced in Easter 2008. The plaintiff was involved in the design of the plan, having a fair input, with the assistance of draftsmen. He oversaw the construction, he ”was pretty much full on” and worked hard.
52 The plaintiff was cross-examined about the post-accident “get rich quick schemes” deposed to by Mr Jones. The plaintiff really did not contribute much at all to these schemes and in any event nothing happened with them.
53 The plaintiff presently works on a job at the Baden-Powell Primary School in Tarneit where he is contracted to the builder doing in ground plumbing works. The six month contract started two or three weeks ago. It was quite possible that the plaintiff could spend ten hours a day at the site.
54 The plaintiff typically starts work now anytime between 3.30 and 7.30 am, when he starts on administrative tasks. Generally he and the workers cannot get into a site until 7.00 am and the plaintiff needs to prep it up before then. Predominantly the knock-off time is 3.30 pm but it depends on the job.
55 Predominantly the plaintiff prefers to do the ground work, draining and so forth, and tries to steer away from roofing.
56 Whilst doing the Tarneit job there are other jobs “on the go,” such as other schools, office work at the Department of Human Services and some residential work. The business at the moment “is in a good spot.”
57 Mr Jones has taken a huge load off the plaintiff in the office. He has taken over chasing up tenders, doing all the wages, tax, WorkCover, insurance – jobs the plaintiff used to do. Mr Jones’ involvement “has been quite large in the equation of things.”
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58 Mr Jones is like a PA, an all-rounder who does the financial aspects of the business and a little bit of sales, knowing enough about plumbing to perform that role. He was paid a salary of $41,669 in 2009. He does the quoting and a little bit of design.
59 Mr Jones, an employee Tristan and the plaintiff do the tendering. Tristan comes in part time and does all the “take off” of all the materials which has taken a huge load off the plaintiff as he was having trouble doing this job because of difficulties with concentration.
60 In cross examination, the plaintiff disagreed he was functioning mentally pretty much as well as he did prior to the accident. He used to be able “to run ten or fourteen blokes and run his own ledger, run blokes and be on the tools, but he did it with ease and now he really battles for the concentration factor.” He has difficulty allocating staff and materials, overlapping and forgetting things. He is very lucky to have Leigh “on his side because he could not do it without him.”
Lay Evidence
61 Allan Leigh Jones, the plaintiff’s brother-in-law, swore an affidavit on 30 March 2010. Since October 2004, Mr Jones has been employed as an account manager by the business.
62 Prior to the accident he saw the plaintiff frequently at family functions and get togethers and they often played golf together. At that time, the plaintiff was an easygoing person and he was hardworking. He and his wife appeared to have a good marriage. From Mr Jones’ observations, the plaintiff seemed to work his way through problems of non payment by builders prior to the accident.
63 For nine years up until October 2004 Mr Jones worked as the accountant/secretary for Deneefe Signs. Towards the end he found that
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position very stressful and was keen to get out.
64 At the same time he was aware the plaintiff had been injured in the accident and from his observations, that had caused real marital problems and the business was really struggling.
65 Following a number of discussions with the plaintiff they eventually agreed it might be mutually beneficial for Mr Jones to work in the business.
66 Prior to him being employed by the business, he was aware the plaintiff’s ex wife Marilyn had done some of the books and administration, however, he now performs a much larger role doing all of the accounting and he is involved in management of the business.
67 As the business was struggling when he came on board, he agreed to work for whatever the business could afford to pay. There were times that there was nothing.
68 Mr Jones and the plaintiff developed a strategy of targeting certain sorts of work, particularly work at school redevelopments and work with more reputable builders. In more recent times Mr Jones had gained access to tenders for building projects, particularly for schools, often on a weekly basis, and had then called the builders to introduce their business to them. He has worked together with the plaintiff to do quoting for jobs.
69 The plaintiff is still a very hard worker and if anything is more fixated on work than in the past. The plaintiff clearly has difficulty concentrating and is easily distracted. He cannot go quickly from thinking about one thing to another and needs clear space and no interruptions to concentrate. For that reason, the plaintiff likes to work late into the evening or starts very early in the morning so he has a quiet time.
70 The plaintiff’s memory seems poor and he often repeats what he has recently told Mr Jones. Often the plaintiff forgets what he has been told. The plaintiff
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meticulously keeps a diary and often refers to it. He often gets frustrated and has difficulty concentrating or working on things and he often seems to be suffering from headaches.
71 Through their efforts they have been able to grow the business so the turnover is now much higher than when it started. Mr Jones certainly does not take all the credit for it, noting that the plaintiff is a very hard worker and has a good reputation.
72 Mr Jones thought that given the plaintiff’s problems with memory, concentration, frustration, headaches and problems dealing with pressure, he would face enormous difficulty surviving in the business in the absence of assistance from him.
73 It is difficult to quantify the impact of the plaintiff’s injury on the business. It is more about difficulties that he faces day to day in operating the business dealing with his concentration and memory problems and the increased risk the plaintiff faced operating the business if something were to happen to Mr Jones.
74 Since joining the business he has attempted with the plaintiff to follow some other business opportunities. At one stage they got involved in pursuing a “get rich quick” scheme involving business names such as “Worldwide Water”, “Oz Emirates”, “Pak International” and “Survivor Pak”. In the end very little happened with this scheme and no money was made .
75 About eighteen months ago the plaintiff was contacted by someone who knew of his plumbing work and the business was encouraged to get involved in the construction and operation of a slurry plant in Singapore. A company called Dewater Australia Pty Ltd, which owned a Sydney company called ESL was set up in relation to the job.
76 The plaintiff went to Singapore in the first half of 2009 to get the plant
DRAFToperational and money was put into the project. The plant got operational but problems soon erupted and it is now defunct and the business lost $100,000 on the project. Due to the failure of this job, they have decided they are better sticking to what they know, namely local plumbing.
The Plaintiff’s Medical Evidence
77 The plaintiff attended the Alfred Hospital (“the Hospital”) on the accident date having suffered a fracture of the right parietal bone of the skull. His Glasgow Coma Score at the accident scene was thirteen out of fifteen and management was conservative. There were fractures of the right sided ribs five to eight and an underlying pulmonary contusion with conservative management and there was a laceration to the scalp and chin which was sutured.
78 The plaintiff was admitted to the Intensive Care Unit from 4 to 5 December 2002, when his condition stabilised and he was transferred to a general ward. He developed a severe occipital headache and this was resolved with an occipital nerve block.
79 The plaintiff continued to improve, and on 10 December 2002, he was discharged to Ivanhoe for rehabilitation and his progress was monitored in the Outpatient Department.
80 On 19 December 2002, the plaintiff attended the Trauma Clinic at the Hospital. There was no complaint of headache, shortness of breath or cough. It was recommended that the plaintiff be followed up by his local general practitioner for further chest x-ray and it was also noted he was attending the Neurosurgery Clinic for review.
81 A neuropsychological assessment report was carried out at Ivanhoe on 16 December 2002.
82 It was noted that a brief screen of cognitive functioning two days post-accident
DRAFTrevealed mild difficulty with complex constructional tasks and new learning. Further, behaviourally the plaintiff demonstrated slow thought processes, limited insight into brain injury and mild disinhibition.
83 On testing the plaintiff’s processing of more complex information was severely reduced, being at an extremely low level. Some mild high order attentional deficits were noted. There were some mild difficulties with verbal executive skills.
84 On current assessment, the plaintiff’s main cognitive difficulties included severely slowed complex processing and mild high order attentional deficits. His initial learning of complex information was mild to moderately reduced, compounded by his attentional difficulties. Repetition assessment, new learning and memory prompts aided recall. Some mild executive difficulties were noted, specifically within the verbal domain, including reduced abstract, verbal reasoning and cognitive inflexibility, resulting in a slightly concrete and rigid responding style and mildly reduced verbal planning and organisational skills.
85 Finally, the plaintiff demonstrated a degree of impulsivity and rule breaking behaviour, however it was noted the frequency did not suggest a significant disorder of impulse control. His test profile was consistent with a mild traumatic brain injury, possibly with a contra coup affect involving the left frontotemporal brain structures.
86 The plaintiff attended the Neurosurgery Outpatient Clinic at the Hospital on 15 January 2003. He was reported to have recovered well from his injuries although he complained of diminished short term memory. He had occasional headache with some dizziness on lying down which was short term. He denied any symptoms of diplopia, tinnitus or seizures. He did complain of some bilateral post-auricular pain which was sharp and stabbing in nature and worse on lateral flexion of his neck.
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87 On this day it was noted the plaintiff remained mildly confused with disorientation to time. He had some diminished short term memory being able to recall three objects. His cranial nerves were grossly intact and he had a full range of neck movement. His neck x-rays were normal, it was recommended he undergo some neck physiotherapy and he was discharged from the Clinic.
88 Dr McColl first saw the plaintiff on 20 December 2002 in relation to his accident injuries. He certified the plaintiff fit to return to normal work on 3 April 2003 and did not see him until the following year when another physical examination was performed for the Road Traffic Authority.
89 On 14 January 2005, the plaintiff returned complaining of persistent headaches since the accident and being very aggressive when using alcohol. Dr McColl organised a brain CT scan which was normal and referred the plaintiff back for a neuropsychological assessment. Alcohol restriction was advised.
90 The plaintiff presented on 6 January 2006 complaining of ongoing headaches which had worsened since the breakup of his marriage and a fall off a roof at work. Dr McColl prescribed Zoloft to improve the plaintiff’s depressed mood.
91 At that stage, Dr McColl concluded that the plaintiff had suffered significant injuries in the accident. He had experienced persistent headaches since that time and became aggressive after consuming significant amounts of alcohol. He had ongoing neuropsychological problems relating to his head injury which were exacerbated by alcohol use.
92 Dr McColl noted that whilst he was able to work in a familiar environment, the plaintiff experienced difficulties when workplace strategies changed. More recently, the plaintiff had become depressed in the context of a marital breakup to which the issues surrounding his injuries probably contributed to significantly.
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93 In his most recent report in December 2009, Dr McColl noted that he had not seen the plaintiff since 6 January 2006 for any medical treatment, although he had attended other colleagues at the practice. He did not know of any ongoing treatment related to the car accident injury.
94
Dr Clare Ramsden, clinical neuropsychologist, carried out a neuropsychological assessment of the plaintiff on 14 March 2005.
95 On that assessment, the plaintiff showed improvements in several areas of cognitive function, including learning verbal information with repetition and attention to visual detail, but it was noted he continued to demonstrate difficulties with attention, mental manipulation, speed of thinking and executive functions. He demonstrated some insight into these difficulties and reported developing strategies to assist, such as restricting himself to performing one task at a time.
96 The plaintiff reported an instance of becoming aggressive after drinking a moderate amount of alcohol. It was noted his test performances indicated reduced attention in executive function, including increased impulsivity and difficulty following rules.
97 Dr Ramsden noted that the plaintiff had a history of heavy alcohol use prior to the accident. The plaintiff told her that he had seen Dr McColl for headaches which had been an ongoing complaint since the accident.
98 Dr Maureen Molloy, neuropsychologist, conducted a neuropsychological assessment in March 2006. The plaintiff complained to her about headaches nearly every day which were especially bad when he looked up. He also complained about poor concentration and poor retention and his need to use a diary.
99 Having conducted a variety of tests, Dr Molloy concluded the plaintiff’s formal intellectual abilities had been well restored as shown by his good performance
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on the block design sub-test. However, there was some slowness in mental process and some reduction in short term memory or concentration. She noted on the other hand the plaintiff was able to learn with repetition as shown by his ability to return to his self-employed work and he was able to maintain his working life even though at a lower level of complexity but with the assistance of an accountant and using strategies such as writing notes and keeping a diary.
100 Dr Molloy concluded that the evidence available indicated the plaintiff had sustained a mild to moderately severe head injury. She concluded the tests carried out by her continued to show the presence of concentration and short term memory difficulties and problems in coping with information overload.
101 In neuropsychological terms, Dr Molloy diagnosed a disturbance in attention and concentration associated with difficulty and coping with information overload. In her view, the plaintiff was not able to process as much information as quickly as he was presumably able to pre-accident. He could no longer carry out multitasking and the present test results demonstrated situations where he was required to deal with several aspects in mind at once and he became overloaded. She thought these problems were enduring and consistent with the plaintiff’s head injury.
102 Professor Jenny Ponsford, clinical neuropsychologist, carried out a neuropsychological assessment in September 2009. She noted that neuropsychological assessments conducted in December 2002 and March 2003 showed reduced attention and information processing skills and reduced complex verbal learning and mild executive difficulties.
103 On assessment by Professor Ponsford, the plaintiff exhibited a mild reduction in the ability to take in, hold and manipulate information in working memory, reduced speed of information processing and moderately reduced learning and recall of new verbal information. She considered those were consistent
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with the nature and severity of the head injury, as was the irritability and low frustration tolerance he had also experienced. She considered as it was more than six and a half years since the injury, significant further recovery was unlikely to take place.
104 Dr Michael Epstein, psychiatrist, examined the plaintiff on 5 December 2006.
105 The plaintiff told Dr Epstein he had occasional nightmares about the accident, although not recently, and still ruminated about it. He had some anxiety as a passenger.
106 On examination, there was no evidence of obvious cognitive dysfunction and the plaintiff appeared well orientated to time, place and person and there was no evidence of any psychotic symptoms.
107 In Dr Epstein’s opinion, the plaintiff had been left with a mild acquired brain injury with some mild cognitive dysfunction. He also had mild anxiety coming from the accident which was mainly manifested when he was a passenger. Dr Epstein considered the combination of the physical and psychiatric effects of the accident had led to a mild chronic adjustment disorder with depressed mood. He thought the effect of the accident had contributed extensively to the breakdown of the plaintiff’s second marriage and also distressed him and contributed to his level of depression.
108 On re-examination in December 2009, and having been provided with medico- legal reports obtained to that date, Dr Epstein again found the plaintiff appeared well oriented to time, place and person. His affect was only mildly restricted. He had some problems with memory and concentration but there was no evidence of thought disorder.
109 From a psychiatric point of view, Dr Epstein thought the plaintiff had a very mild chronic adjustment disorder with depressed mood as a result of the effects of the accident. In his view, the plaintiff could benefit from some
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psychiatric or psychological treatment.
110 Mr David Brownbill, consultant neurosurgeon, initially examined the plaintiff on 25 January 2007, and more recently on 10 February 2010. On re examination the plaintiff complained of unchanged symptoms, namely headaches situated behind the left ear, aggravated by looking up to the left or the right. There was a sharp pain that developed into a generalised headache. He used a diary and needed frequent reminding.
111 On examination, the left great occipital nerve was tender to palpation.
112 Mr Brownbill considered the plaintiff’s headaches were likely to be contributed to by greater occipital neuralgia, noting the tenderness of the greater occipital nerve and the plaintiff’s positive response to an earlier injection of that nerve. He thought it appropriate for the plaintiff’s treating doctor to consider referring the plaintiff to a neurosurgeon for consideration of a greater occipital nerve ablation.
113 In Mr Brownbill’s view, the plaintiff had suffered cerebral damage with higher intellectual function disturbance, particularly with respect to memory, that had resulted in significant reduction in his ability to control his plumbing business.
114 Mr Silverstein examined the plaintiff on 21 October 2008. He diagnosed possible vestibular function disorder and facial scarring.
115 Dr John King, neurologist, examined the plaintiff on 9 March 2010. The plaintiff complained to him of daily left occipital pain which radiated down the left side of his neck and also over the head into the left eye. He complained the pain was episodic, lasting for hours at a time and it was the reason he took six to eight Panadol a day. The plaintiff felt his memory, particularly short term, was affected, and he had become quite depressed after the accident, requiring treatment with anti-depressants.
116 Based on the brief loss of consciousness on the Glasgow Coma Score, Dr
DRAFTKing thought that the plaintiff had suffered a mild but significant head injury with concussion. The late affects of the head injury as demonstrated by testing were fluctuating attention and concentration, some loss of planning ability and a behavioural disturbance. There was also a mild personality change which could be attributed to the head injury.
117 Further, the plaintiff had ongoing stabbing pain in the left occipital region, together with more chronic pain which was consistent with occipital neuralgia.
Investigations
118 A CT scan of the plaintiff’s brain was carried out at Alfred Radiology on 4 December 2002. There was a linear undisplaced right frontal fracture. There was probably a trace of extra axial blood but no significant haematoma. There was no focal parenchymal lesions seen and the ventricles were not dilated. It was concluded there was a right frontal fracture.
119 A CT scan of the plaintiff’s brain was taken on 6 December 2002 at Alfred Radiology after a history of right frontal fractures and worsening headaches. The ventricles and sulci were normal. There was no focal parenchymal or extra axial lesion seen.
120 A CT scan of the brain was organised by Dr McColl on 18 January 2005. The findings were of a normal ventricular system and no focal axial or extra axial lesion was identified.
The Defendant’s Medical Evidence
121 Mr James Drury, clinical neuropsychologist, assessed the plaintiff in June 2008. In his view, the neurological details relating to the plaintiff’s accident indicated his duration of retrograde amnesia extended for several hours.
122 On testing, the plaintiff demonstrated several measures which were consistent with his estimated pre-accident ability. However, the pattern of deficits revealed lapses in attention and concentration, slow psychomotor processing
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speed, inefficient visuospatial recent memory and mild lapses in high level
spatial planning, verbal new learning ability and spatial immediate recall.123 In Mr Drury’s view, overall it was likely that the pattern of deficits evident on the current assessment was consistent with mild residual organic brain damage, particularly affecting attentional skills, psychomotor processing speed and visuospatial memory. This was consistent with the plaintiff’s own experiences of memory lapses, losing his train of thought and finding it more difficult to multitask. Mr Drury thought that the plaintiff’s pain and fatigue may be restricting his cognitive efficiency to a mild degree but that the organic component was a more significant factor.
124 Professor Stephen Davis, neurologist, examined the plaintiff on 5 August 2008. In his view, the plaintiff had a mild but significant acquired brain injury which had affected his memory with some organic distractibility as well. There had also been some mild but definite personality changes consistent with mild organic brain injury.
125 Professor Davis considered the plaintiff had genuine and quite straightforward left occipital neuralgia which was initially diagnosed at the Alfred Hospital correctly and treated with an occipital nerve injection. Professor Davis thought that this was an organic pathology and was quite anatomically consistent. He thought the plaintiff had a good neurological prognosis but clearly he did have some genuine impairment as a result of the head injury.
126 Dr Nicholas Ingram, psychiatrist, examined the plaintiff on 4 February 2010.
127 The plaintiff told Dr Ingram that his main psychological problem since the accident had been the development of depression, mainly related to his ongoing pain and physical limitation. His sleep had been disturbed. He had not had any anxiety symptoms apart from being a passenger and he still thought about the accident occasionally.
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128 On mental state examination, the plaintiff’s affect was not depressed or anxious and he engaged well, though there was some decrease in the reactivity. There was some preoccupation with his pain but there was no formal thought disorder or perceptual abnormality and the plaintiff’s memory, concentration and intelligence appeared normal.
129 Dr Ingram considered that the plaintiff was mainly suffering from a chronic adjustment disorder with depressed mood.
130 The defendant tendered reports from Ivanhoe relied upon by the plaintiff.
131 The report dated 16 December 2002 set out the plaintiff had a past history of “? chronic pain syndrome/analgesic abuse- Panadeine Forte.”
132 The clinical notes of Dr McColl at the Rosanna Medical Group from 2002 to 2009 were tendered. Complaints of headaches were noted in December 2005, January 2006 and on 26 September 2008.
133 The ambulance report set out the plaintiff had a Glascow coma score of 14 at the accident scene.
Findings
134 It is accepted that the plaintiff suffered cerebral damage and some cognitive dysfunction as a result of the accident. He suffered a fracture of the right parietal bone of the skull and a small extra dural haematoma. His Glasgow Coma Score at the scene of the accident was thirteen or fourteen out of fifteen.
135 The plaintiff, has a genuine and straightforward left occipital neuralgia which was initially diagnosed whilst an inpatient at the Alfred Hospital. This is an organic pathology which is quite anatomically consistent, as Professor Davis described.
136 Further, there is consensus amongst medical examiners that the plaintiff has a
DRAFTmild but significant acquired brain injury which has affected his memory, with some organic distractibility as well. There have also been some mild but definite personality changes consistent with mild organic brain injury.
137 The issue for consideration is not the injury but the impairment and whether the consequences thereof are serious.
138 Prior to the accident, the plaintiff had had a number of health problems but not in relation to headaches or cognitive functioning.
139 Whilst the plaintiff has noted some improvement in his headaches up until two years ago, I accept that since the day of the accident the plaintiff has suffered severe left sided headaches which were initially treated by occipital nerve block at the Alfred Hospital.
140 These headaches are often prompted by the plaintiff turning his head or looking to the right and are of such severity that they require him to take on average four Panadol a day and on some days up to eight Panadol tablets a day. Whilst two tablets give him some relief for a couple of hours, the plaintiff is then required to take tablets on an ongoing basis during the day.
141 I accept these headaches affect the plaintiff’s daily activities and are aggravated by his workload and stress at work. At times the plaintiff’s headaches have been so bad, that Mr Jones has had to drive him to work.
142 However, the plaintiff has, to his credit, despite these problems, continued to work full time, often up to seventy hours a week in an effort to maintain the plumbing business he established before the accident – he “sticks at it.”
143 I accept that the plaintiff is a stoic. As Nettle JA commented in Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260, at paragraph 4 that he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of
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character, simply resigned himself to his injury.”
144 There was no evidence suggesting that the plaintiff did not have the level of disability and headaches of which he complained. Further the plaintiff was not challenged in cross examination to any great extent in this regard
145 Arguing against the seriousness of the plaintiff’s headache complaint, counsel for the defendant submitted that the plaintiff does not have the need for ongoing significant treatment for his headaches and that has been the case since he was discharged from hospital.
146 Having been hospitalised at the Alfred for six days and then discharged to Ivanhoe for rehabilitation where he was assessed, the plaintiff has undergone a CT scan of his brain, in 2005, and also been referred for further neuropsychological assessment.
147 Whilst the plaintiff has only seen his general practitioner on a handful of occasions in relation to his headaches, there appears to be no further treatment that is available to him or that has been suggested to him, save for a brief reference by medico legal examiner Mr Brownbill that the plaintiff’s general practitioner consider referring the plaintiff to a neurosurgeon for the consideration of an ablation procedure being carried out.
148 I accept that the requirement to take large dosages of Panadol to continue working is a serious consequence of the plaintiff’s impairment.
149 In addition to problems with headaches, it is accepted that the plaintiff has memory and concentration problems which have been confirmed in neuropsychological testing carried out on a number of occasions.
150 Whilst the plaintiff has demonstrated a capacity for working long hours being involved in significant plumbing jobs, one being over a number of months in Singapore, I accept that since the accident he has had difficulty multi-tasking at work and he has difficulty concentrating. His memory is now poor and he
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makes more extensive use of a diary than he did prior to the accident.
151 I accept that because of his accident related cognitive difficulties, the plaintiff is no longer able to “keep eight jobs in his head at once.” He is unable to do the ledgers, wages, tendering and quoting without assistance and has employed Mr Jones to fulfil this role. As the plaintiff said, if it was not for Mr Jones, he would not be able to run the business.
152 In addition to providing help in the office, Mr Jones has sourced a number of tenders, including work at various schools, and he provides general assistance to the plaintiff, as well as support in what the plaintiff described as a “PA role.”
153 Mr Jones deposed that the plaintiff is a hard working man focussed on his job who has had significant cognitive difficulties performing all his work related tasks after the accident and required his assistance in this regard. Mr Jones was not cross examined.
154 Whilst there were some difficulties in the plaintiff’s marriage prior to the accident due to his drinking, I accept that the plaintiff’s cognitive problems and irritability would have had an effect on his personal relationships after the accident, although as his counsel submitted, it is never really possible to identify one factor as the reason for a matrimonial breakdown.
155 I accept that before the accident, the plaintiff was a man focussed on his work who was limited in his recreational pursuits by his orthopaedic injuries. Whilst he has remained focussed on his work since the accident, when he now has any spare time he just relaxes and engages in no real activity as he has to rest because of his headaches.
156 The plaintiff has had expected psychological consequences following the accident, which I am entitled to take into account in considering his level of impairment. He is a very nervous passenger and is depressed by the effect
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his accident injuries have had on his work and lifestyle. [1]
[1] Richards v Wylie (2000) 1 VR 79 at para 17 per Winneke P
157 Taking in account all of the evidence, I am satisfied that the plaintiff has a “serious injury” involving his cognitive functioning and headaches resulting from the transport accident.
158 Accordingly, I grant the plaintiff leave to bring proceedings for damages in relation to the accident.
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