Petzierides v Transport Accident Commission
[2010] VCC 486
•7 May 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES-COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-03191
| SIMON PETZIERIDES | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
| JUDGE: | HIS HONOUR JUDGE SHELTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22 and 23 April 2010 |
| DATE OF JUDGMENT: | 7 May 2010 |
| CASE MAY BE CITED AS: | Petzierides v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0486 |
REASONS FOR JUDGMENT
---
Catchwords: TRANSPORT ACCIDENT – serious injury application pursuant to s.93 of the Transport Accident Act 1986 – partly amputated big toe – “range case” – Humphries v Poljak [1992] 2 VR 129 – Mobilio v Balliotis & Ors. [1998] 3 VR 833 – Ninkovic v Pajvancek [1991] 2 VR 427 – Richards v Wylie (2000) 1 VR 79 – Swannell v Farmer [1999] 1 VR 299 – Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 – Fleming v Hutchinson (1996) 66 ALJR 211 – Nichols and Transport Accident Commission v Robinson [2001] VSCA 11 – Edwards v McSaveney [2005] VSCA 252 – Baker v Transport Accident Commission [1997] 1 VR 662 – application fails under both paragraph (a) and paragraph (b) of the definition of “serious injury”.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Keogh SC with | Slater & Gordon |
| Mr M Ruddle | ||
| For the Defendant | Mr P Priest QC with | The Solicitor to the Transport |
| Ms S Hinchey | Accident Commission | |
| HIS HONOUR: |
Introduction
1 This is an application by way of Originating Motion pursuant to s.93(4)(d) of the Transport Accident Act 1986 ("the Act") for leave to bring proceedings for the recovery of damages in respect of injuries suffered by the plaintiff in an accident which occurred on 10 May 2004 ("the accident"). In the accident, a double-decker bus struck the plaintiff, who was a pedestrian.
2 Section 93(6) of the Act provides that I must not give leave to bring the proceedings unless satisfied that an injury suffered was a “serious injury”. Section 93(17) of the Act, so far as relevant, defines “serious injury” as follows:
“serious injury means –
(a) serious long-term impairment or loss of a body function; or (b) permanent serious disfigurement; or …”
The Application under paragraph (a) of the definition of “Serious Injury”
Relevant Legal Principles
3 In Humphries v Poljak [1992] 2 VR 129, at p.140, Crockett and Southwell, JJ, said:
“[The judge] is to be affirmatively satisfied (the burden of proof being borne by the plaintiff) 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 plaintiff. 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’?”
4 This passage was reaffirmed by a Court of Appeal of five members in Mobilio v Balliotis & Ors. [1998] 3 VR 833.
5 Here, the plaintiff does not rely upon any “pecuniary disadvantage” but only upon “pain and suffering” or, as was said by Marks J, in Ninkovic v Pajvancek [1991] 2 VR 427, at p.429, “interference with enjoyment of life”.
6 I note particularly from Humphries v Poljak, that I am required to focus not so much on the injury itself, but rather on the consequent impairment or loss of a body function (p.134). My determination must be objectively made. It is my opinion as to the seriousness of the impairment, not that of the plaintiff or his medical practitioners, which is decisive (p.137). A body function, which has suffered a serious and long-term impairment, must be identified (p.138). The body function upon which the plaintiff relies is his right foot.
7 In Richards v Wylie (2000) 1 VR 79, at 87 and 88, the President stated:
“Thus, the “serious injury” defined by paragraph (a) of subs (17) can, I think, have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function.”
8 Whether or not a “serious injury” exists is to be determined at the date of the determination of the application for leave, i.e. at the present – Swannell v Farmer [1999] 1 VR 299, per Batt and Buchanan JJA.
9 In Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, Ashley J, at paragraph 7, stated:
“No new question of principle arises, also, because the test for what constitutes serious injury — judicially articulated and legislatively expressed — is not in doubt. Whether the consequences of compensable injury for an applicant satisfy the test is to be assessed having regard to the spectrum of all cases, not simply those which end up in litigation. The latter may be supposed to be — which is not to say that they are — cases in which the consequences are not glaringly apparent one way or the other.”
10 From the reference in the footnote to this paragraph to Humphries v Poljak, and from the wording of the extract itself, it is clear that Ashley JA’s comments are equally applicable to applications under the Act.
11 In Fleming v Hutchinson (1996) 66 ALJR 211, the High Court approved the comment of McGarvie J, in Humphries v Poljak (at p.167):
“The test is to be applied in the context of the provisions of the Act which I have mentioned. Its application involves a comparison with and an assessment relative to other possible impairments or losses of the body function in question. Elements of fact, degree and value judgment are involved.”
12 In Nichols and Transport Accident Commission v Robinson [2001] VSCA 11, the President stated, at paragraph 14:
“As the judges in Humphries pointed out, what they were saying was given as ‘guidance’ to trial judges in ‘forming a judgment’ as to whether the injury being considered was ‘serious’ within the meaning of the Act. They were not saying that it was a formula, each ingredient of which had to be fully stated and explored in the reasons for judgment. . . . It is a task which necessarily involves them in making a value judgment as to whether the injury which they are considering is, by comparison with other cases in the range of possible impairments or losses, to be described as ‘very considerable’.”
13 In similar vein, in Edwards v McSaveney [2005] VSCA 252, Ashley JA, in referring to the latter part of the extract from Humphries v Poljak, referred to in paragraph 3 above, stated, at paragraph 19:
“That passage, of course, set out a template by which a judge will be assisted in determining whether injury was or was not serious in a particular case: ‘assisted’ because the template did not replace the relevant words of the Act.”
The Issue
14 The sole issue for my determination is whether the injury suffered by the plaintiff falls within the range of injuries which, in terms of Humphries v Poljak, can be described as a “serious injury”. Thus it is a “range case”.
The Plaintiff’s Evidence
15 The plaintiff swore two affidavits in support of the application, on 13 January 2009 and 14 April 2010. He gave viva voce evidence before me and was extensively cross-examined by Mr Priest, one of Her Majesty’s Counsel, who with Ms Hinchey, appeared for the defendant.
16 At the time of the accident, the plaintiff was aged thirty-three and is now aged thirty-nine. He left school after Year 11 and then did further studies in building construction and real estate. He worked on building sites for a few years after leaving school. He then became involved in real estate. His real estate company experienced financial difficulties and was placed in liquidation in March 2003.
17 The Australian Taxation Office sued the plaintiff on 21 May 2003 and entered judgment against him on 16 June 2004 for the sum of $140,629.05. When he went bankrupt he had debts in excess of $1 million.
18 The plaintiff stated that prior to the accident he was very physically active and fit. He had been involved in karate for four years and used to train at it approximately three days per week. He had a “yellow tag” and was to be graded for a full yellow belt. He was involved in judo for four years prior to his karate involvement. He was a keen cyclist and used to enjoy running and jogging. He often used to run distances of 8 to 10 kilometres. He was also heavily involved with scuba diving and had an advanced level certificate.
19 Following the accident, the plaintiff was taken to Box Hill Hospital with dislodged teeth and extensive cuts and bruises. He was kept in hospital overnight and discharged the following day with his right foot in plaster. He had continuing difficulties with his right foot. A general practitioner suggested a small operation on an ingrown toenail that had developed on his right big toe. He had previous problems with ingrown toenails. This procedure was performed in early March 2005. Unfortunately, the toe became infected, became gangrenous and his right big toe was partially amputated in March 2005. There were subsequently ongoing problems with nail “spikes” or spicules, being parts of the right big toenail which continued to grow. This required further surgery.
20 Since the accident, the plaintiff states that he cannot do karate anymore because of a lack of balance and difficulty in executing some of the movements. He cannot scuba dive now because there are problems with wearing the flippers and also carrying the weight of the tank and lead belts, and also the stump rubbing directly onto the end of his boot. He is “okay in the water but it is getting there that is the problem”.
21 Prior to the accident, the plaintiff swam twice a week at the City Baths after karate sessions there. His surgeon, Mr Peter Little, told him to stay away from public pools for fear of infection
22 The plaintiff states that he continues to experience phantom pain where the amputated part of his right big toe was and this is very painful, and that he has lost balance on many occasions. He cannot wear thongs. He has difficulty walking barefoot since he ends up with a phantom sensation and he misjudges the end of his foot. Doctors have told him that he walks with a slight limp, although he is not aware of it. The area around his right big toe is very sensitive and he has to be careful as to what shoes he wears. His right foot aches and is sore, particularly if he places pressure upon it.
23 The plaintiff states that as a result of the way he now walks, he has developed lower back pain, mainly on his left side, and that this radiates into the buttocks and down the left leg. He also experiences numbness and tingling in the left leg. He has difficulty with any activity requiring prolonged sitting or standing and has difficulty walking on uneven ground.
24 In April 2006, the plaintiff commenced personal training with Tony Haranas of Northern Exposure Personal Training in Ivanhoe (“NEPT”) as a rehabilitative measure. He trains at NEPT for an hour each weekday morning. On three mornings a week he spends ten minutes on the treadmill, working up to a maximum speed of 7.5 kilometres per hour. He then has a workout on a particular part of the body for the remaining fifty minutes. On the other two days he spends an hour on the treadmill, running and walking for 6 kilometres.
25 The plaintiff saw Dr Nicholas Ingram, consultant psychiatrist, at the request of the defendant on 10 March 2010. In a report of that date, Dr Ingram states:
“Recent Medical History
‘Mr. Petzierides said that physically he had been ‘great’ since I had last seen him. He had been training five days a week at the gym and had also taken up running and considered himself very physically fit. H e had mostly come to terms with his amputated toe and his only physical symptoms had been that he had developed minor sciatic pain because of the stress put on his spine because of the toe amputation leading to some asymmetry in his gait.
These had been characterised by pain in his lower back and had generally come on every two to eight weeks for two or three days and had settled down with physiotherapy and he had not required analgesia and they had not been a major problem.
He had still felt a little self-conscious in regard to his toe, but this had not been bad enough that it would have prevented him going to the beach with his children.
Current Level of Activity:
Since I had last seen him Mr. Petzierides had started his own property development company and he said that this had been going well and he had several major developments ‘on the go’ at the present time. He said that he had enjoyed his work and felt in control of what he was doing and financially things were much better now than they had been when I had last assessed him.
He had lived at home with his wife and since I had last seen him he had had a daughter who was now two, as well as his son who was now five. When he had not been working he had enjoyed being with his children and otherwise most of his time had been spent at the gym. He had started riding a motor scooter and he said that he had overcome his fear of being on the roads since then, as riding a scooter had allowed him to feel more in control. Even when driving a car he had become more confident, except that he had been a little more cautious when getting into and out of the car.
Present Psychiatric History:
Mr. Petzierides felt that generally his psychological health had been good since I had last seen him. …
. . .
He had not felt that he had become depressed at all as a result of what had happened and felt happy in his personal and business life, as though things had got back on track, and he had been able to enjoy things much as always.
. . . .“
26 The plaintiff agreed that Dr Ingram had correctly reported what he told him which, as appears, is quite optimistic and positive.
27 The plaintiff was examined by Mr Rodney Simm, orthopaedic surgeon, at the request of the defendant on 14 April 2008. Mr Simm has provided a report of that date. In the report, Mr Simm states:
“He is now active and he is able to ride an exercise bike and run on a treadmill at the gymnasium. He exercises five days per week with a personal trainer. The exercise routine includes lifting weights.”
28 Mr Simm re-examined the plaintiff on 24 March 2010. In a report of that date, he states that the plaintiff told him that since the excision of a dermoid cyst and some bone trimming in August of 2009, there had not been any further pain or swelling of the stump of the right big toe and that he did not have any hyperaesthesia, that is an increase of sensitivity or tenderness of the stump. The plaintiff confirmed that what Mr Simm has reported was based on what he told him. He further confirmed, under cross-examination, that his condition had not deteriorated in the two years between visits to Mr Simm.
29 The plaintiff stated that there had been some swelling of his right big toe subsequently for two weeks prior to his giving evidence on 23 April 2010. However, he did not refer to this in his affidavit of 14 April 2010 even though it was present then. He stated that this recent swelling had not interfered with his walking and running on the treadmill.
30 The plaintiff is presently involved in the construction of twenty two units at the Tower Hotel site in Alphington. This is a multi million dollar development which he stated was operated through between ten to fourteen companies. He was now working over forty hours per week on this development and attends meetings in the city on most days, travelling from Alphington to the city by motor scooter.
31 So far as previous lower back pain is concerned, the plaintiff stated that he had seen an osteopath in about 1987 or 1988 as a result of a lifting incident on a building site. He then had no further lower back problems until 1999 and early 2000 when he saw David Zuker, physiotherapist, on three occasions. He stated that he then did not have any further lower back problems until two years after the accident.
32 The plaintiff now experiences back pain irregularly, sometimes once a day, sometimes not for a period of six weeks. He normally obtains relief by lying flat on his back and doing exercises. Sometimes he also takes two Nurofen Plus, which he says masks the pain until his next workout when his body gets warmed up. Sometimes this back pain interrupts his personal training for a few days. He relies upon his physiotherapist’s advice upon this. Any back pain he experiences does not prevent him from working.
33 The plaintiff wears rubber clogs when he goes to the beach.
34 The plaintiff stated that he finds it difficult to run outside as opposed to at NEPT where he has a cushioned surface on the treadmill and the bars on the treadmill to hold onto. Prior to the accident, he used to run at a speed of up to 15 kilometres an hour.
The Credit of the Plaintiff
35 The plaintiff gave a written testimonial for Tony Haranas in about April 2009. He conceded that it contained exaggerations and untruths. Mr Priest relied on this testimonial as undermining the plaintiff’s credibility as a witness generally. Mr Keogh, Senior Counsel, who, with Mr Ruddle appeared on behalf of the plaintiff, relied upon the concessions of wellbeing made to Dr Ingram and Mr Simm as indicated above as showing the plaintiff’s frankness as a witness.
36 Further, the plaintiff’s failure to refer to the recent swelling in his right big toe in his affidavit of 14 April 2010 is of some concern.
37 However, generally the plaintiff impressed me as one keen to tell the truth. For example, he readily conceded that his financial problems were due to bad management on his part. Overall, despite the testimonial, I am prepared to accept him as a witness of truth and therefore in particular to accept what he says with respect to the symptoms he has indicated.
The Evidence of Tony Haranas
38 Mr Haranas stated that when the plaintiff came to him in April 2006 “it was obvious to me his physical appearance represented your typical overweight and unhealthy thirty-five year old male”. He confirmed the intense exercise regime the plaintiff undertakes. He expressed the view that in his training sessions the plaintiff pushed himself to the limit physically, that he has reduced his girth by 15 to 20 centimetres and that he is of above average fitness level for his age. He stated that the plaintiff was restricted in carrying out certain exercises but did state that he was pressing 100 kilograms on a leg press.
Medical and Like Evidence
39 As mentioned, the plaintiff attended Box Hill Hospital shortly after the accident. A report from the hospital dated 22 June 2005, states:
“Examination revealed the patient to be alert and orientated, to be complaining of pain over his left lower ribs, right shoulder, right foot. The patient was treated with pain relieving medications and a number of x-rays were performed which revealed a transverse fracture through the base of the fifth metatarsal. At that stage it was felt that there was only one fracture, but later x-rays revealed a fracture of the base of the second metatarsal also. At this time the patient was immobilized in a plaster back slab and admitted overnight for pain relief. He was advised to be non-weight bearing for a period of six weeks and arrangements were made for him to be followed up in the Orthopaedic Clinic.”
40 The plaintiff was reviewed at the hospital on six subsequent occasions up to 22 February 2005. The report states that on that occasion –
“… it was noted that he was still not back at work and was complaining of pain across the first to the fourth talometatarsal joints and was unable to stand longer than 90 minutes and complained of swelling in his foot after 60 minutes. Examination revealed no swelling of the right foot, but tenderness between the first and the fourth metatarsal. He also had an irritable mid foot.”
41 A report of 16 June 2005 from Dr John Casey of the Livingstone Street Medical Clinic notes that on 5 January 2005, the plaintiff complained of back pain radiating into his left leg and was treated with Brufen medication.
42 The report continues:
“On 11 March 2005 Mr Petzierides was diagnosed with an ingrown toe nail on his right big toe. This was probably related to the foot injuries received when he was hit by the bus. He had a wedge resection of the right big toe nail performed by Dr Zec on 13 March 2005. The procedure was complicated by infection and tissue necrosis of the right big toe. He was referred to the Austin Hospital for further management. At the Austin he initially had debridement and washout of the right big toe on 19 March 2005. Later on 25 March 2005 he required amputation of the distal phalanx and flap of the right big toe.”
43 A report from the Austin Hospital dated 9 August 2005, states:
“Simon Petzierides was admitted to Austin Health on 16 March 2005; he was a 34-year-old real estate agent who underwent a wedge excision of an ingrown right toenail about 4 days previously, performed by his local doctor. He now presented with marked infection and cellulitis of the great toe and he was referred to the hospital by his local doctor for further management.
On examination, Mr Petzierides had a temperature of 38.5 and he appeared unwell. The right great toe was markedly inflamed with surrounding cellulitis and an area of necrotic tissue on the dorsal surface of the great toe. He was admitted and underwent surgical drainage and debridement during which time he was also treated with intravenous and then oral antibiotics. He made a good recovery subsequently and he was discharged on 21 March 2005.
Subsequently, Mr Petzierides was transferred to the Repat Ward 6 Rehabilitation Centre, where he continued to be under the care of the Plastic Surgical Unit. He became well and afebrile and on 25 March, he had further surgery, which consisted of debridement of the wound bed and application of split skin grafts. Mr Petzierides continued to do well following surgery and he was discharged finally on 30 March.
He returned to the Plastic Surgery Clinic for review on 7 April, when his wounds were healing well and again on 5 May, when the wounds were healed, there was no infection present and it was planned to see him again in approximately 4 month’s (sic) time.”
44 As a result of ongoing problems with the right big toe, the plaintiff was referred to Mr Peter Little, surgeon. In a report of 17 December 2007, he states:
“Mr Petzierides was first referred to me on 04 January 2006 by Dr K McHenry. He gave a history of injury to his right foot when struck by a bus in May 2004. He apparently suffered several metatarsal fractures. He was treated initially in a plaster cast and then a CAM Walker boot. The foot, however, remained painful and ultimately further surgery was done on the right big toenail in March 2005, apparently in the belief that the nail may have been contributing to the ongoing pain. That procedure was complicated by gross infection and tissue necrosis. Ultimately amputation of the toe at the interphalangeal joint was required. Since then Mr Petzierides had had problems with recurring nail spikes in the wound and continuing pain in the stump generally. A couple of further procedures to revise the wound and remove nail spikes had been performed. He was, however, referred to me in January 2006 with the problem of further troublesome nail spikes.
On examination at that time the toe had been amputated at the interphalangeal joint. The stump was basically soundly healed. On the lateral aspect superiorly there was a 3mm nail spike growing through the wound with some mild surrounding inflammation. Circulation in the amputated toe appeared good. The rest of his foot at that time appeared normal.
Mr Petzierides was admitted to Warringal Private Hospital as a day case on 10 January 2006 to attempt definitive removal of the persistent nail spike and the associated nail bed responsible for its growth. Under a light general anaesthetic plus a digital block and with tourniquet control of the toe, I dissected out the nail spike together with all the associated soft tissues at its base that were likely to contain germinal matrix. The wound was then closed with several fine interrupted nylon sutures. A light pressure dressing was applied. There were no operative problems and he was able to go home a few hours later.”
45 The plaintiff had continuing problems with nail spikes, and on 12 September 2006, under a light general anaesthetic, Mr Little performed a further procedure. Nail spikes continued to cause problems and Mr Little conducted a further procedure under local anaesthetic in his rooms on 19 July 2007.
46 Although there is no up-to-date report from Mr Little, as appears from Mr Simm’s report of 24 March 2010, to which I have referred above, in August 2009, Mr Little excised a dermoid cyst. It had eroded into the bone and there was some consequential trimming of the bone of the proximal phalanx.
47 Mr Little states, in his report of 17 December 2007:
“In the right foot there has been loss of the distal part of the great toe which is, of course, permanent. This has a very significant permanent effect on his ability to run and jump and may occasionally affect his balance. There is still some residual pain in the foot which I believe will continue. Although he is fit to continue with sedentary work, his ability to sustain long periods standing, walking or driving is impaired and his career choices are thereby limited. He has had to abandon significant regular recreational activities, specifically martial arts and cycling, which he is unlikely ever to be able to resume. … .
. . .
The relationship of the right toe problems to his motor accident are notperfectly clear, but on the balance of probabilities I accept that the problems Mr Petzierides has had with his right toe do relate to his motor accident. …”
48 Despite Mr Little’s doubts, it is not in issue that the amputation to the right big toe was causally connected with the accident.
49 Mr Little concludes:
“Overall Mr Petzierides’ condition is now reasonably stable, but there is still a possibility of further nail spike formation in this stump. It requires only a few viable cells of germinal epithelium to continue to produce annoying nail spikes. Although I was fairly happy at my last review that we had now solved that problem, I cannot discount the possibility that he could need further minor procedures if any further spikes occurred. Otherwise, I think this stump will remain stable. There is certainly a possibility of premature arthritic deterioration in the foot overall in future years. There is no immediate need for any further treatment, but as commented above, he could require further minor surgery if other nail spikes develop and he might require management of arthritic problems in later years.”
50 Turning to medico-legal assessments, Associate Professor Afif Hadj, a general surgeon, examined the plaintiff for his solicitors on 10 November 2008 and 1 April 2010. In a report of 1 April 2010, he notes that the plaintiff has had eight operations to have the nail spike excised. He notes that a CT scan performed on 19 October 2007 shows that the plaintiff has a small right L5-S1 paracentral disc protrusion without impingement on the left lumbar nerve roots.
51 Mr Hadj gave viva voce evidence also. He expressed the view that the plaintiff’s change in gait caused by the partial amputation of his right big toe, his phantom right big toe and the manner in which he sought to protect it when walking caused the problems to the plaintiff’s lower back. While the lower back pain is, in his view, due to degenerative disc pathology, this degeneration was contributed to by the accident. Mr Hadj conceded that pre- accident back problems of the plaintiff could be a contributing factor to his current back pain even though the plaintiff stated he had no back pain between 2000 and the date of the accident. He thinks that two years of unsteady gait caused the back pain.
52 He stated that the plaintiff impressed him as a physically fit man. He thought the plaintiff should be able to cycle. He agreed that the plaintiff’s gait in footwear is essentially normal. He thought the two-year gap between the date of the accident and the lower back problems developing was reasonable. He stated that he noticed the plaintiff was limping outside the Court even though wearing shoes. Mr Hadj agreed that neither the amputated toe nor the back pain would affect the plaintiff from carrying out his normal work functions. He thought that walking on uneven surfaces would be difficult for the plaintiff.
53 Mr Russell Miller, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitors on 7 April 2010 and has provided a report of that date. He also gave viva voce evidence. He states that on examination of the right big toe, it was hypersensitive and tender, which is consistent with the plaintiff’s indication that his right big toe became swollen about two weeks before he gave evidence. With the recurrent problems with the re-growth of the nail, he expresses the view that the prognosis for the injury is poor and that further “revision amputation” will be necessary. He states:
“He will have difficulty with work that involves prolonged standing, prolonged walking, uneven ground and issues of chronic pain are also a problem. He also has difficulty with prolonged sitting. These restrictions are permanent and accident related.”
54 He, too, confirmed that if the big right toe injury caused the plaintiff to limp, then that would put abnormal loads upon the lumbar spine and could cause symptoms. He was unable to say with any certainty the extent to which the current back pain suffered by the plaintiff was related to his gait and how much was related to his previous back problems. He indicated that he did not realise the extent of the plaintiff’s activities at NEFT and that he was unaware that the plaintiff rode a motor scooter, nor that he worked for over forty hours a week. As to scuba diving, he was himself involved in this activity. It was his view that the plaintiff would be unlikely to be able to scuba dive. It was his view that if the plaintiff was suffering foot pain it would be more difficult to use a diving fin and to scuba dive. The fact that nail problems had arisen in the past made it more likely that they would arise in the future. He was of the view, given the pre-accident symptoms, that there was a pre-existing lower back problem which was activated by the accident.
55 As mentioned, Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff for the defendant on 14 April 2008 and 24 March 2010 and has provided reports of those dates. In the latter report, he states:
“I expect him to have recurrent episodes of lumbar back pain and referred pain into the left buttock and left lower limb. Considering the time from the accident and the fact that he has gone for periods of time without lumbar and left lower limb symptoms, I would relate these ongoing symptoms more to underlying degenerative lumbar disc pathology than to the effects of the trauma of the accident
He will have permanent loss of function of the right foot as a result of amputation of the right big toe through the interphalangeal joint. I have seen a number of patients with total amputation of the right big toe who seem to manage most activities without undue difficulty. However, I accept that this man would have some difficulty springing off the right foot because of absence of the big toe. The problems with recurrent nail spicules and the dermoid cyst have presumably now been appropriately addressed with surgical treatment.”
56 Mr Hadj agreed with the contents of the second quoted paragraph, as did Mr Miller, except that he thought that recurrent nail spicules might be a problem in the future.
57 Mr Simm further states:
“I do not subscribe to the hypothesis that his back pain relates in any way to the amputation of the right big toe and any associated gait disturbance from this amputation. His gait in footwear is essentially normal. His gait without footwear is only mildly affected and would not result in any undue stress on the lumbar spine.
…
His condition will persist as described in my medical report. I anticipate he will have permanent symptoms and loss of function associated with the partial amputation of his right big toe. I also anticipate he will continue to suffer from recurrent episodes of low back pain and referred pain to the left buttock and thigh. The pattern of his symptoms has not changed now for some time. The symptoms in the right big toe have improved following the recent surgical procedure. Further improvement is not likely.”
58 Mr Ingram, in his report of 10 March 2010 states:
“Generally Mr. Petzierides has coped well since I last saw him and he has been able to start a new business and get on with his life. He no longer has any depressive symptoms and his PTSD symptoms, although still present, are relatively mild and only occur with specific reminders of the accident and do not cause him particular distress. At this stage I do not feel these symptoms are severe enough that they require any specific treatment and I think they will slowly continue to improve with time.”
Discussion
59 As mentioned, this is a “range” case. The issue for my determination 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’?”[1]
[1] Humphries v Poljak (supra), at 140
60 I accept, for the purposes of this application, as is probably the case, that the plaintiff’s lower back symptoms, with some referral to the left lower limb, are a consequence of his gait derangement caused by the injury to the plaintiff’s right big toe rather than the aggravation by the accident of a previous symptomless back condition. I accept that for over four years prior to the accident the plaintiff had no problems with his lower back. Both Mr Hadj and Mr Miller were of the view that the plaintiff’s irregular gait resulted in the lower back pain emerging after approximately two years, although I note that there was a complaint to Livingstone Street Medical Clinic on 5 January 2005 of back pain radiating to the left leg which was treated with anti-inflammatory medication. If the lower back pain was caused by the plaintiff’s irregular gait, it seems logical that it did not appear immediately but only some little time after the accident.
61 Particularly relevant factors in considering the application are, in my view, the ability of the plaintiff to carry out an extremely rigorous exercise regime each weekday morning for an hour, including running and walking on the treadmill at speeds up to 7.5 kilometres per hour. I accept that the plaintiff is doing this for rehabilitative purposes. It is of relevance however, in assessing the extent of the plaintiff’s impairment. The plaintiff is able to work regularly over forty hours per week. He rides his motor scooter into the city regularly. The plaintiff, to his credit, painted a quite rosy picture as to his condition to Dr Ingram on 10 March last, as he did to Mr Simm two years ago and he considered that his condition had not worsened between visits.
62 On the other side of the ledger, the plaintiff does have some limitation of movement on account of his toe and has a slight limp. He has to cope with his “phantom toe”. The medical evidence is to the effect that the condition of the plaintiff’s right big toe has stabilised, is permanent and that he may need further minor surgery in the future for nail spikes. There is also the lower back pain which occurs at irregular intervals – sometimes only every six weeks – which is alleviated by exercises on the floor and, on occasions, Nurofen Plus, followed by physiotherapy. I also note the comment of Mr Little that there is a possibility of arthritic problems in the future.
63 I accept that the plaintiff is no longer able to engage in karate, scuba diving, cycling and swimming, sports in which he was heavily involved and enjoyed.
64 Mr Keogh conceded that, so far as the principles outlined in Richards v Wylie (2000) 1 VR 79 were concerned, the plaintiff’s mental response to his physical impairment was of fairly minor relevance.
65 In all the circumstances, the plaintiff has failed to satisfy me that he suffered a “serious injury” as defined in paragraph (a).
The Application under paragraph (b) of the definition of “Serious Injury”
66 In Mobilio v Baliotis, Brooking JA, stated, at p.844:
“What was said by Crockett and Southwell JJ in Humphries v Poljak at 140 was said in relation to para(a) of the definition of ‘serious injury’. But it has never been suggested that the word ‘serious’ in para(b) of the definition (‘permanent serious disfigurement’) does not have the same meaning as ‘serious’ in para(a). On the special leave applications, the High Court proceeded upon this basis. And this view has been acted upon by the Court of Appeal in dealing with cases of disfigurement: Ingram v Ingram; Baker v Transport Accident Commission (1996) 24 MVR 219.”
67 The comments made by the High Court in Fleming v Hutchinson and by the Court of Appeal in Swannell v Farmer and Dwyer v Calco Timbers Pty Ltd (No.2) would appear to be equally applicable to the application under paragraph (b).
68 Again, so far as paragraph (b) is concerned, this is a “range case”.
69 I saw the plaintiff’s partly amputated right big toe.
70 Obviously, the toe would normally be covered by a shoe. The plaintiff stated that if he went to the beach he would normally wear rubber clogs which would again cover the toe at a time when it would normally be apparent to others. In Baker v Transport Accident Commission [1997] 1 VR 662 at 664, Brooking JA, with whom Phillips JA, agreed, regarded the degree of obviousness of the disfigurement as relevant. Mr Keogh did not disagree with my suggestion in the course of his final address that, for example, a partially amputated big toe would be more serious in the case of a teenage girl who would be more likely to wear open sandals.
71 At the conclusion of Mr Keogh’s final address I indicated that I felt that the plaintiff was hard pressed to succeed under paragraph (b). I am still very firmly of that view. I am far from satisfied that the plaintiff has suffered a “serious injury” as defined in paragraph (b).
Conclusion
72 Since the plaintiff has failed to satisfy me that he suffered a “serious injury” under either paragraph (a) or paragraph (b) of the definition of “serious injury”, the plaintiff’s application fails.
- - -
0
6
0