Peake v Transport Accident Commission
[2021] VCC 197
•18 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-02399
| ROGER SYLVESTER PEAKE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 February 2021 | |
DATE OF JUDGMENT: | 18 March 2021 | |
CASE MAY BE CITED AS: | Peake v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 197 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Transport accident – TransportAccident Act 1986 – s93 – serious injury – paragraph (a) of the definition of “serious injury” – pain and suffering and loss of earning capacity consequences
Legislation Cited: Transport Accident Act 1986
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Richards & Anor v Wylie (2000) 1 VR 79; McCann v Scottish Co-Operative Laundry Association Limited (1936) 1 All ER 475
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Blanden QC with Ms J Cowen | Henry Carus & Associates |
| For the Defendant | Mr J Ruskin QC with Ms A Wood | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1Roger Peake seeks leave to start a proceeding for the recovery of damages for injuries as a result of a transport accident. He needs to establish his injury is a “serious injury” and relies upon paragraph (a) of the definition of that expression: “serious long-term impairment or loss of a body function”. Here, the body function is that associated with the right lower limb and, in particular, the thigh and hip. He relies on both pain and suffering and loss of earning capacity consequences.
2An issue is the causal connection between the right hip and the transport accident. There is now no issue regarding the relevant causal connexion exists with the right thigh.
3The issue of loss of earning capacity consequence is complicated by Mr Peake suffering now from early onset dementia, which itself renders him incapacitated for work.
Circumstances
4Mr Peake is now sixty-six. He is married, lives with his wife, Janice, and he has now retired.
5On 20 July 2014, he was a self-employed painter and decorator. At about 11.45am that day, he was turning right into the car park of a railway station when struck by an oncoming motor vehicle. The collision caused extensive damage to his vehicle. So much so, that it was not repaired because it would be uneconomic to do so.
6Mr Peake described the impact:[1]
“At the time of impact, the white car impacted with the passenger side of my vehicle, around the position of the front wheel. My vehicle was lifted off the road, before bouncing back onto the road, and I was slammed into the driver’s door side of my vehicle. I hit my head on the driver’s side window.”
[1] Affidavit sworn 3 September 2020 at paragraph [8]
7Before this accident, Mr Peake had never had a problem with his right hip or thigh. At the time of the accident, he was not taking any medicines.
8Immediately following the accident, Mr Peake did not think he was injured except for soreness to the right side of his head and “along” his right hip. He did not attend a hospital or a medical practitioner. However, the next day, a large bruise (5 inches across and 3 inches high) appeared over the right side of his pelvis, the lower section of his stomach and the area of his right groin. The appearance of the bruising worsened initially and then faded over the next few weeks. During those weeks, he felt pain in his right hip, groin and stomach, which he attributed to the bruising. None of this prevented him from working for several weeks even though it was in a supervisory capacity.
9With the healing or fading of the bruising, Mr Peake noted a burning pain in his groin on the right side which extended into his right thigh. To his wife, he complained of pain in his right hip and a burning pain down the front of his right thigh. He also experienced a pins and needles sensation and weakness. The right leg felt hot, appeared to have wasted and, whether through heat or pain, he was kept awake at night. At this time, he experienced difficulties with his left knee, which had been a problem for some time.
10It was not until 16 October 2014 that Mr Peake raised the symptoms affecting his right thigh with a general practitioner, Dr Massoud Anderyas. He had visited a general practitioner ten days earlier but in respect of his left knee. On the latter date, Dr Anderyas referred him to neurologist, Dr Graeme Symington, about his right thigh. About then the pain in his right thigh was affecting his ability to work and drive and he was experiencing a dull pain in his right hip.
11In November 2014, Mr Peake saw Dr Symington, who diagnosed meralgia paraesthesia of the lateral femoral cutaneous nerve. He referred Mr Peake to a neurosurgeon, Mr Mark Lam, who arranged MRI scanning.
12By 12 December 2014, the burning pain in his right thigh was so bad, Mr Peake went to the emergency department of Box Hill Hospital for help.
13On the basis of what he had learnt by then about his diagnosis, Mr Peake connected the condition of his right thigh with the accident and, on 21 January 2015, he lodged a claim with the defendant.
14On 29 January 2015, Mr Lam injected the right lateral cutaneous nerve with anaesthetic. It gave relief for about a week.
15About that time, Mr Peake started physiotherapy, which lasted until November 2015. It too gave limited relief.
16On 22 April 2015, nerve conduction studies were conducted. Apparently, there was a problem with these tests and they were conducted again in 2016.
17In November 2015, Mr Peake saw another neurologist, Dr Poh-Sien Loh, who arranged further MRI scans of his pelvis and right hip.
18These scans occurred in December 2015 and revealed fraying and tearing of the labrum.
19On 28 January 2016, Mr Peake went to the Box Hill Hospital; this time about his painful right hip. Owing to the unwillingness of the defendant to fund surgery, it was not until 12 March 2019 that an arthroscopy was performed. Unfortunately, it did not improve matters much.
20In October 2017, Mr Peake saw Professor Gavin Davis. After a delay, Professor Davis performed an ultra-sound guided neurolysis of the lateral cutaneous nerve of the right thigh on 31 January 2018. Initially, there was a good result. The thigh was pain-free by 6 March 2018 but on 30 May 2018, there was recurrent dysaesthetic pain on 30 May 2018. It was not expected to, and did not, affect the numbness.
21In March 2019, the right labral tear was debrided.
Current condition
22Mr Peake still has this burning pain in the front and side of his right thigh and down as far as his knee. He experiences it daily. It worsens in cold weather and after more physical activity.
23With his right hip and leg, he has a constant dull aching pain. At night, he tosses and turns in bed due to the pain. So much so, he has slept separately from his wife since 2014 because he kept her awake. He notices the pain after waking and after walking his dog for 20 minutes. The hip feels stiff. It causes him to limp.
24Overall, the pain is constant.
25Mr Peake takes Cymbalta and Celebrex as well as Allegron and Coversyl.
26Mr Peake stopped working in about October 2014. He had planned to work to seventy.
27Without distinguishing between what parts of his lower right limb is responsible, its overall state limits the distance he can drive. His wife now does most of the driving for them. It also prevents him doing jobs around the home including cleaning the gutters and painting. They have replaced their lawn with artificial grass, relieving him of the need to mow.
28Their holidays are more limited now. They travel by caravan, which he no longer drives with a caravan attached. It is harder for his wife to manage so their holidays are less frequent.
29They no longer dance on Saturday nights at the Kilsyth Club. He has stopped playing golf, which he did before the accident every five or six weeks. He walks his dog around a local park but does so for 15 to 20 minutes before needing to sit down.
30Mr Peake is less able to be active with his four young grandchildren. He is less happy and tolerant with them now.
31Over the years since the accident, his mood has become very low. He has felt anxious, irritable, depressed and worried. His wife says he is no longer “the happy go lucky, easy going person he used to be”.[2] Her overall impression of what he has become largely covers his own perception of himself:[3]
“Roger is much more difficult to live with than he used to be. I have noticed that he appears anxious, irritable, depressed and worried. He has become frustrated with his injuries, the constant pain and the difficulties and delay in getting treatment and he is much more negative and pessimistic than he used to be.”
[2] Affidavit of Janice Peake sworn 3 September 2020 at paragraph [21]
[3] (ibid) at paragraph [22]
32Mr Peake’s loss of employment has caused financial difficulties such that his wife has been forced to take on a second job. She works as a hairdresser and caravan sales consultant. It is the latter job she took on after he stopped working.
Dementia
33Since the transport accident, Mr Peake has developed dementia. It alone renders him incapacitated for work.
34Unaided by authority, I consider the intrusion of dementia is immaterial since the injuries to his right hip and thigh rendered him incapacitated for work indefinitely. It cannot be said the leg-related incapacity ceases and the dementia takes over simply because the effects of the injuries to his leg have not ceased. This reasoning is analogous to the reasoning in workers’ compensation cases.[4]
[4] See chapter 6 of Hill and Bingeman, Principles of the Law of Workers’ Compensation
Treating practitioners
Professor Davis
35Professor G Davis treated Mr Peake. He is a neurosurgeon. At the request of his solicitors, he examined him again on 18 January 2021.
36Mr Peake told Professor Davis of two areas of pain. First, over the distal half of his lateral right thigh, there was a burning pain. Before the operation, the pain was very high, 9 out of 10. After the operation, there was improvement: on a bad day, 6 to 7 out of 10; and while lying down, 4 to 5 out of 10.
37Second, with the distal half of the medial right thigh and the proximal half of the medial right leg, there is pain in the form of an ache with an elevated intensity, being 7 to 8 out of 10.
38With the right hip being outside Professor Davis’ area of expertise, he diagnosed Mr Peake’s injuries as meralgia paraesthetica, surgically treated, and Chronic Pain Syndrome affecting the lower right limb. He attributed both to the accident. No further surgery was required for the meralgia paraesthetica. The Chronic Pain Syndrome may benefit from a specialised pain management programme.
39Excluding any consideration of dementia, and confining himself to meralgia paraesthetica and the syndrome, Professor Davis said of Mr Peake’s current capacity for work:[5]
“… the chronic pain prevents the patient from performing any physical activities, and given his limited pre-injury education and employment experience, restricted to welding and painting, it is evident that the right thigh pain prevents him from participating in either form of employment.”
[5] Report at p 7
40Professor Davis added that Mr Peake has no long-term capacity for employment.
41As to prognosis, the meralgia paraesthetica will persist into the foreseeable future while the pain syndrome may respond to an appropriate multidisciplinary pain medicine programme.
Medico-legal
42Professor Stephen Davis is a neurologist. At the defendant’s request, he has examined Mr Peake on 27 September 2016, 3 July 2017, 18 September 2019 and 18 November 2020. Professor Davis diagnosed right side meralgia paraesthetica due to the transport accident. In each of his reports, Professor Davis stated the same conclusion:[6]
“He gives an absolutely classical history of right side meralgia paraesthetica and this correlates with the bruising to the right groin/inguinal region (where the lateral cutaneous nerve is close to the surface) sustained in the accident, which is well described by both the patient and his wife.”
[6] See for example report dated 18 September 2019 at p 6
43Despite the contrary view of the orthopaedic surgeon, Mr Craig Mills, Professor Davis maintained his view that this condition was caused by the transport accident.
44This condition is often extremely painful. He is unsurprised the decompression of the lateral cutaneous nerve proved unsuccessful, for the disorder can be quite refractory. His inability to return to work following the accident was due to pain in the right thigh and hip but his dementia is now the major reason why he cannot work presently. It is a greater cause of his incapacity for work than refractory meralgia paraesthetica.
45There are two things stemming from Professor Davis’ report: First, the condition can be extremely painful and is so in Mr Peake’s case. Second, the condition can be resistant to treatment as is also the case with Mr Peake.
Dr Kam
46Dr Anthony Kam is a consultant radiologist. At the defendant’s request, he examined various radiological investigations.
47The 15 December 2014 MRI scans show a subtle right labral tear. X-rays show early osteophyte formation consistent with early degenerative changes.
48Based on the available radiological images and clinical information, Dr Kam concluded “there is no convincing evidence to indicate the right labral tear resulted from the transport accident on 20 July 2014”.
Mr Devitt
49Mr Brian Devitt is an orthopaedic surgeon. On 20 November 2020, he examined Mr Peake at the request of his solicitors. He was given an extraordinary number of reports and clinical records.
50Mr Devitt accepted the diagnosis of meralgia paraesthetica, noted the treatment and the lack of success of the neurolysis.
51As to the right hip, there were degenerative changes present. There is a labral tear. Despite an arthroscopy and labral debridement, the degenerative changes have progressed.
52The labral tear could explain his symptoms since the accident. On one view, the MRI scans of December 2014 show a tear. This finding is reproduced in the scans of 16 December 2015 with the appearance of the tear being unchanged between scans. The presence of early osteophytes suggests early degenerative changes. Labral tears are commonly found by MRI scans. They are often asymptomatic. It can be the source of pathology for Mr Peake’s persistent hip pain. There are more than one cause of a labral tear. One cause could be the type of accident Mr Peake experienced. The pre-existing asymptomatic tear could have been rendered symptomatic by the accident. The accident could have caused the tear. They are both possibilities.
Associate Professor King
53Associate Professor John King is a neurologist. On 2 December 2020, he examined Mr Peake at the request of his solicitors.
54To Associate Professor King, the injury to Mr Peake’s right hip was the aggravation by the accident of degenerative osteo-arthritis, pointing out there were no symptoms before the accident. To the right thigh, it was meralgia paraesthetica due to the entrapment of the lateral cutaneous nerve.
55The injury to the right hip left Mr Peake suffering pain and limited movement while with the right thigh, it is numbness and neuropathic pain in the distribution of the lateral cutaneous nerve.
56The hip may need replacing. The neuropathic pain will need long-term medication.
57Mr Peake is incapacitated by these injuries for his pre-injury employment due to the pain and risk of falling. As to other employment, at sixty-six and with early dementia, he has no capacity for paid employment in any field.
Dr Kennedy
58Dr David Kennedy describes himself as a sports and industrial physician. On 6 February 2018 and 9 December 2020, he examined Mr Peake at his solicitor’s request.
59Mr Peake told Dr Kennedy of a burning pain down the right side of his right thigh which was quite severe. There has been no treatment since he previously saw Dr Kennedy. He does not sleep well and wakes during the night due to right hip and thigh pain. He takes Cymbalta before bedtime. He has not returned to work due to pain and restrictions in the functioning of the right hip and thigh. His pain increases to significant levels, especially after activity such as walking his dog. If it reaches those levels, he is restricted in his domestic and maintenance activities around the house. This depresses and stresses him. He tires very easily. The pain from his hip and thigh worsens when he walks on uneven surfaces, inclines, steps and stairs. With sitting and standing his pain increases. After about 30 minutes of either, the pain causes him to rest.
60Although the examination was by means of an audio-visual link, Dr Kennedy considered his range of movement of the hip was restricted on flexion, abduction and rotation. There was altered sensation along the lateral side of the thigh extending to just above the knee.
61Despite the arthroscopy to the right hip in 2019 to correct the labral tear and the earlier ligation of the lateral femoral cutaneous nerve, Mr Peake still has significant problems with the function of the right hip joint and pain and altered sensation down the lateral side of the thigh. Together, they affect the functioning of his right lower extremity quite significantly.
62The pain will continue long term. He requires medical treatment (including medication) into the foreseeable future. The pain restricts his occupational and domestic activities. Coupled with his education and occupational experience, he will be unable to return to any work in the foreseeable future “on a consistent, sustainable and reliable basis”. The prognosis is guarded.
Legal considerations
63Paragraph (a) of s93(17) of the Act defines “serious injury” as a long-term serious impairment or loss of body function.
64A person who is injured as a result of a transport accident may recover damages in respect of the injury if the injury is a “serious injury”.[7] In this application, “serious injury” is a long-term serious impairment or loss of body function.[8]
[7] Section 93(2) of the Act
[8] Paragraph (a) of the definition of “serious injury” in s93(17) of the Act
65The meaning of “serious” in s97(17) of the Act was explained in Humphries and Anor v Poljak:[9]
“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’? … .”
[9] (Supra) at 140 per Crockett and Southwell JJ
66Dodds-Stretton JA observed in Kelso v Tatiara Meat Co Pty Ltd:[10]
“… The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[10] (2007) 17 VR 592 at 629
67In Richards & Anor v Wylie,[11] where Winneke P said:
“… If, as a result of an injury, a person loses a limb, it will, no doubt, often occur that one of the consequences of such a loss or impairment will be the development of a mental response to that impairment or loss. That is one of the consequences which, along with others, the Court will need to evaluate in determining whether the loss or impairment of a body function, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as ‘serious’ … Thus, the ‘serious injury’ defined by sub-paragraph (a) of sub-s.(17) can, I think, have its seriousness measured in part by a mental response to a physical impairment. What it will not recognize is that the mental disorder can itself constitute or be the producer of the impairment of a body function.”
[11] (2000) 1 VR 79 at 87-88. See also Buchanan JA at 90
68For these applications, an injury must cause impairment or loss which has adverse consequences for the applicant. The consequences may come under the headings of pain and suffering or pecuniary disadvantage or both.
69In this case, the injury to Mr Peake’s right upper limb has caused pecuniary loss. It has incapacitated him for work. Recently, he has been diagnosed as suffering from dementia, which also incapacitates him for work. The respondent submits the latter has overtaken the former, such that the former must be disregarded. Relying on decisions coming from workers’ compensation cases, I thought this submission was wrong.
70In McCann v Scottish Co-Operative Laundry Association Limited,[12] the plaintiff suffered an injury to her right hand by accident arising out of and in the course of her employment with the defendant. Initially, she received compensation for a total incapacity for work. Subsequently, she received compensation for partial incapacity. While so incapacitated, she suffered a serious illness, unconnected with the accident. Her claim for compensation for partial incapacity went to the House of Lords, which reinstated her original order. Lord Macmillan said:[13]
“My Lords, it is now well settled, that a workman who by reason of incapacity due to an accident is entitled to compensation does not lose that right merely because through some extraneous supervening cause, such as illness or old age, a natural incapacity is added to the incapacity due to the accident. The employer cannot plead that as the workman would, by reason of his condition apart from the accident, be incapacitated in any event, he has lost his right to compensation. There is no merger of the accidental incapacity in the natural incapacity. The circumstance accordingly that the appellant’s partial incapacity due to her accident was during the period in question combined with total incapacity due to her illness, affords the respondents no answer to her claim to be compensated for her partial incapacity during that period.”
[12] (1936) 1 All ER 475
[13] (Ibid) at 482
71Although dealing with a different statute, I see no reason to find Mr Peake’s incapacity for work due to injury has merged with his incapacity due to natural causes such that the former is ignored as a cause of the incapacity.
Discussion
Right thigh
72Mr Peake has injured his right thigh. It is the injury identified by Professor Stephen Davis. It is fair to say by the end of the case, both parties agreed on the diagnosis and that it was caused by the transport accident.[14]
[14] Transcript at p 6 and p 48
Right hip
73A significant issue remained as to whether the transport accident caused an injury to the right hip. There are several matters to consider.
74First, Mr Peake did not ever have any symptoms with his right hip before the accident. In particular, it had never been painful.
75Second, immediately after the collision, Mr Peake felt soreness “along” his right hip due to the impact “slamming” him into the driver’s door. A large bruise emerged but it is unclear where exactly it was located. Mr Peake says it was over the right pelvis, lower stomach and “groin area” which may well be higher than what would be commonly called the hip.
76Third, it took a number of weeks for the bruise to disappear. While it was, Mr Peake experienced “some” pain in his right hip, groin and stomach. And about that time, he complained to his wife of pain in his right hip.
77Fourth, Mr Peake has continued to suffer, and still does, a burning and aching pain over the anterior aspect of his right hip, which radiates into his groin and into his thigh. Pain in the right hip has persisted since the accident.
78Fifth, of the various practitioners who have treated Mr Peake or examined him for medico-legal purposes, only two give opinions worthy of examination.
79Associate Professor King attributes his symptoms in the right hip to degenerative, osteoarthritic changes which were aggravated by the accident. He says aggravation, because there were no symptoms in the right hip before the accident.
80At the time of accident, Mr Mills believed correctly the right hip was in the early stages of osteoarthritis. However, he mistakenly believed the 2014 MRI scans did not show a labral tear. Therefore, the accident did not cause it. In fact, the scans showed the tear, according to Dr Kam. As did MRI scans a year later, which showed no change in the state of the tear compared with the 2014 scans. Since Dr Kam viewed the scans and as a radiologist has expertise in interpreting them, it is likely the accident caused the tear. By disregarding the tear, Mr Mills is able to allow a very minor acceleration of the degenerative condition, the effects of which have lasted twelve weeks at most. Plainly, I cannot accept that view because of his mistaken assumption. It is a matter of some moment.
81The neurologist, Professor Stephen Davis and the neurosurgeon, Professor Gavin Davis, declined to express a view on whether this injury was caused by the accident. Both deferred to the orthopaedic surgeons.
82Without saying why he reached that conclusion, Dr Kennedy implicitly linked the right hip injury to the accident. An assertion, without the underlying reasoning, is unhelpful.
83It is the temporal link which was decisive for Associate Professor King. It is a compelling factor. The hip was not painful before the accident but became so following the accident. It has remained so ever since. I accept Associate Professor King’s view the accident aggravated the pre-existing osteoarthritic hip. The hip has remained painful. Surgery has not rectified the situation. It is safe to say the aggravated condition will continue into the long term.
Serious injury
Pain and suffering
84Each day, Mr Peake suffers pain along the front and side of his right thigh. The pain is felt as far as his knee. He describes the pain as burning. Activity and cold weather worsen the pain. The hip gives a dull aching pain, which is constant. It affects his sleep. He medicates with Cymbalta, Celebrex, Allegron and Coversyl.
85The pain limits his social activities, whether driving, working around his home, going on holidays, dancing, golfing and walking.
Pecuniary disadvantage
86As I said earlier, the injuries to his right lower limb caused Mr Peake’s incapacity for work since 2014. That incapacity continues and will do so indefinitely.
87Mr Peake intended to work until he was seventy, which I accept. He is now sixty-six. His injuries to the right lower limb will, by the age of seventy, have incapacitated him for work for about eleven years. It is a significant factor.
Conclusion
88Applying the test in Humphries and Anor v Poljak,[15] I am satisfied Mr Peake has suffered a “serious injury”, in that his injury can be fairly described “at least very considerable and certainly more than significant or marked”.
[15]Supra
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