Rodowsky v Transport Accident Commission
[2016] VCC 56
•9 February 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-03118
| MARTIN RODOWSKY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 January 2016 | |
DATE OF JUDGMENT: | 9 February 2016 | |
CASE MAY BE CITED AS: | Rodowsky v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 56 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the right shoulder – consequences – what the plaintiff has lost compared to what he has retained
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited:Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: The plaintiff is granted leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell with Mr C A Sidebottom | Slater & Gordon |
| For the Defendant | Mr P Jens QC with Ms J Clark | Solicitor for the Transport Accident Commission |
HIS HONOUR:
Introduction
1 This is an application brought by the plaintiff, seeking leave to bring a proceeding to recover damages for injuries that he suffered in a transport accident, which occurred on 31 July 2011.
2 Mr D Purcell appeared with Mr C Sidebottom of counsel for the plaintiff. Mr P Jens QC appeared with Ms J Clark of counsel for the defendant.
The transport accident
3 On 31 July 2011, the plaintiff was riding his bicycle when an unknown driver of a car verbally abused the plaintiff and those with whom he was riding. What then happened was an episode of road rage. The driver pulled out in front of the plaintiff and his fellow riders and then suddenly braked.
4 The plaintiff tried to avoid colliding into the car. He steered his bicycle toward the grass nature strip. He came adrift from his bicycle, subsequently landing on his outstretched right hand and arm.
5 The plaintiff was aware that he had probably suffered a major injury to his right shoulder. He went to the Epworth Hospital, where he was treated in the Emergency Department. After he was examined and underwent an x-ray, his arm was put in a sling. He was provided with some analgesia. He was referred to an orthopaedic surgeon.
The Plaintiff’s medical treatment
6 The plaintiff came under the care of Mr Raleigh, orthopaedic surgeon. He performed surgery on the plaintiff’s right shoulder on 8 August 2011. The surgery comprised an acromioclavicular joint fixation with the insertion of a plate and screws and neurolysis of the supraclavicular nerve.
7 Mr Raleigh performed a second episode of surgery on 8 December 2011. That surgery comprised the removal of the plate and screws.
8 Apart from reviews by Mr Raleigh, the plaintiff has had very little other medical treatment. He has seen a number of general practitioners and a physiotherapist. He first saw a physiotherapist on 28 February 2013. The physiotherapist noted that on examination, the plaintiff had restricted shoulder movements in all directions and was complaining of stiffness and a grinding sensation in the shoulder joint. She recommended treatment, which she provided the plaintiff.
9 Before seeking and obtaining physiotherapy treatment, the plaintiff set upon a course of gym work in about July 2012 on his own initiative to attempt to return his shoulder to a better level of functioning.
10 The plaintiff’s shoulder continued to trouble him to the extent that he sought an opinion from his general practitioner, who referred him to have an MRI scan, which was undertaken on 18 July 2012. He saw Dr Quoc Duong, general practitioner, on 25 February 2013. According to the clinical note that was read to the plaintiff, he complained of continuing crunching sounds and trapezius tightening in his shoulder. There was some discussion regarding surgical trimming of a bone in his shoulder. It would appear that he informed the general practitioner that he was keen to explore non-surgical options before considering further surgery. It would also appear that it was suggested that he have physiotherapy and use non-steroidal anti-inflammatory medication.
11 The plaintiff also saw Dr Currant, general practitioner, who the plaintiff saw in the six months prior to the trial of this application. She advised him to undertake strengthening exercises, and in particular, rowing-type exercises to strengthen the muscles in his back. They are the exercises which the plaintiff undertakes now.
12 The plaintiff candidly admitted that he has not sought out any other medical treatment beyond what I have just summarised. He has otherwise persisted with gym work. He takes Panadol or Nurofen for pain relief about two or three times per week. Both are readily available over-the-counter forms of medication. His wife provides him with a massage once or twice a week, which he finds helpful.
The Plaintiff’s consequences
13 The plaintiff swore two affidavits on 7 March 2013 and 15 September 2015 which he accepted were a true account of the consequences he has experienced since the occurrence of the transport accident. Additionally, he relied upon an affidavit of his wife, Sharlene Dyer, sworn 18 August 2015, and a further affidavit of Owen Brinson, sworn 15 September 2015.
14 Mr Jens cross-examined the plaintiff about each of the consequences that the plaintiff referred to in his affidavits. The plaintiff was also cross-examined by reference to materials obtained by the defendant from the internet, which demonstrate the level of physical activity the plaintiff presently undertakes.
15 It was my impression that the plaintiff was a creditworthy and reliable witness. There were inevitably aspects of the cross-examination which suggested that a different interpretation might be open to some aspects of the plaintiff’s evidence. However, in the end, the submissions made by Mr Jens were that the plaintiff was living a busy life domestically, socially, recreationally and vocationally before he suffered injury, and that he continues to live such a busy life. The conclusion Mr Jens invited me to reach was that even if I concluded that the plaintiff had lost his capacity to engage in aspects of that busy life, the losses suffered by the plaintiff are not serious when compared with what the plaintiff has retained.
16 Mr Purcell submitted that the plaintiff was a young man of thirty-one years when he suffered injury. He was a fit, strong, energetic and outgoing young man who engaged in physical activity at a very high level. He is now unable to engage in some of the pre-injury physical activities he pursued, and significantly less able to engage in others. The conclusion I was invited to reach, is that the losses, even when compared with what the plaintiff has retained, points to those losses being serious. He also submitted that I should look at the plaintiff as the classic stoic who has made every effort to return to as much significant physical activity as possible, despite the disabling nature of the injury he has suffered to his shoulder.
17 In general terms, neither Mr Jens, nor Mr Purcell, quarrelled with the manner in which I chose to summarise the thrust of their submissions based upon the evidence.
18 I have no doubt at all that the plaintiff was in fact a fit, strong, energetic and outgoing young man who engaged in physical activity at a very high level. I have no doubt that he is no longer as fit, strong or energetic as he was, and that his level of capacity to engage in physical activity has been reduced significantly. However, the question is whether the losses he has suffered, when compared with what he has retained, amount to consequences which are serious.
19 The thesis of what has been lost as opposed to what has been retained is to be found in the judgment of Ashley JA in Dwyer v Calco Timbers Pty Ltd (No 2).[1] I think it is a very useful means of determining a case such as this where the plaintiff has undoubtedly retained a measure of the activities he was given to engage in a prior to suffering injury. Additionally, I consider the observation made by Nettle JA (as he then was) in Dwyer to also be of relevance to my consideration of whether what the plaintiff has lost is serious. His Honour observed in the appeal before the Court, that if the appellant had not been prepared to put up with his pain and suffering and get on with his business as best he could, the respondent may well not have disputed his claim. His Honour added that it would be unfortunate, and in his view wrongheaded, if in the future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.[2]
[1][2008] VSCA 260 at paragraph [27]
[2](Ibid) at paragraph [3]
20 It is common to see applications for serious injury where an applicant has retained a measure of pre-injury activities. That fact can be seductive and too readily lead to the conclusion that the consequences cannot, therefore, be serious; however, there are undoubtedly cases where the return to significant pre-injury activities will lead to that result.
21 There is very little controversy in the medical evidence. Both sides relied upon the medico-legal examinations of Mr Moran, orthopaedic surgeon, and Mr Dooley, orthopaedic surgeon.
22 Mr Moran examined the plaintiff on 3 September 2012 and 28 January 2015. He provided two reports after he examined the plaintiff, dated 7 December 2012 and 5 August 2015. The second of his reports contains the relevant summary of his examination of the plaintiff’s shoulder and his opinion regarding the nature and extent of the injury to the shoulder. He considered that the plaintiff had suffered a significant injury to his shoulder. He considered that the persistence of the plaintiff’s symptoms over many years made it reasonable to conclude that the symptoms would persist. He was of the opinion that the plaintiff had suffered displacement and significant dislocation of his acromioclavicular joint and was exposed to the residual subluxation in pain in the right shoulder as a result of impingement resulting from the injury.
23 Mr Dooley examined the plaintiff on 13 April 2015. He provided a report dated 15 May 2015. He considered that the plaintiff would note some intermittent pain in his shoulder, and would have difficulty with regular heavy physical work or work that involved a lot of activity at or above shoulder level. Additionally, he considered that the plaintiff would note some limitations in relation to employment and with domestic and leisure activities. Although there was no clinical evidence that the plaintiff was suffering from osteoarthritis of the acromioclavicular joint, he considered that he was at risk of developing post-traumatic arthritis in that joint.
24 Of interest is Mr Dooley’s discussion concerning the expectation of fit and active individuals and their level of recovery from such an injury. He considered that the plaintiff might be one of those people who finds it difficult to cope with the fact that his expectation of recovery has not been fulfilled. It would appear that he considered that that might be a psychological reaction by the plaintiff, but in making some sense of that discussion, it occurs to me that while there may be some psychological factors at work, the unrealised expectations on the part of the plaintiff are physically based.
25 The defendant obtained the internet materials I have already referred to. They were referred to Mr Moran and Mr Dooley. To the extent that they were able to understand what the material demonstrated, they were otherwise not of the opinion that what they read in that material was inconsistent with the plaintiff’s presentation when they examined him. I should add at this point that the material on its face warrants explanation, which the plaintiff gave under cross-examination. Neither Mr Moran, nor Mr Dooley, had the benefit of that explanation, which I think is of significance in understanding what that material actually demonstrates.
26 There are other medical reports, which were referred to only in passing. I do not propose to refer to them, because the real thrust of the final submissions made by Mr Purcell and Mr Jens were based upon the plaintiff’s evidence and the opinions of Mr Moran and Mr Dooley.
The Plaintiff’s evidence
27 I have already referred to what I have made of the plaintiff’s creditworthiness and reliability. I accept his evidence in whole. I have read the transcript of the cross-examination and have concluded that there is little in that cross-examination which alters my view that I should accept the plaintiff’s evidence in whole.
28 In summary, what I accept of the plaintiff’s evidence is as follows:
·He suffers ongoing problems with his shoulder. He experiences pain and a tight feeling across the scapula and a catching and pulling sensation in the shoulder. Additionally, he experiences a clicking and grinding in the shoulder with certain movements, and audible cracking when he raises and rotates his right arm.
·The pain in and around his shoulder often radiates into the right side of his neck and results in him suffering headaches.
·His shoulder is very painful and stiff in the morning.
·Relatively modest activities such as clapping his hands, raising his right arm above shoulder level, brushing his teeth, brushing his hair, pulling on a pair of pants, putting on jumpers and jackets, and using his arms to rise from a seated position from a chair are enough for him to experience discomfort in his shoulder.
·Cold weather exacerbates the background level of pain which he experiences in his shoulder.
·His exercise regime, which he was given to engaging upon four to five days per week, has been reduced. He no longer does heavy lifting exercises such as bench presses and shoulder presses or similar gym exercises, as these exercises cause him to experience a pinching and grabbing sensation in the shoulder, and the onset of pain in the area of his scapula.
·There was a social aspect to his gym work. He was passionate about it. He attended with friends. I infer that the reduction in his capacity to fully engage in pre-injury gym work has reduced the social enjoyment that he obtained from attending a gym with his friends.
·He experiences difficulty sleeping, because he experiences pain when he lies on his right side. He developed a snoring habit, because he was sleeping predominantly on his back and on his left side. His snoring has led to his wife moving into a separate room up to three times a week, and I infer because it keeps her awake.
29 The plaintiff engaged in a wide variety of very physical activities. He cycled regularly; played golf; surfed; played tennis; played basketball; snow skied and wake boarded in addition to attending a gym. I will return to the activities which the plaintiff has retained, but will now refer to those recreational activities which he has lost. He no longer plays golf, tennis, basketball or wakeboards. He was not a member of a golf club, but he had obtained a handicap.
30 The plaintiff attempted to return to a number of the recreational and sporting activities which he no longer is able to engage in. I accept his evidence that despite making those attempts, he is no longer able to engage in those recreational and sporting activities because of the problems he experiences with his shoulder.
31 There are other recreational and sporting activities which the plaintiff has returned to. The internet material discloses that the plaintiff continues to ride his bicycle and also walks and runs for exercise. The plaintiff used a mobile phone-activated application known as Strava, which tracks his activity via GPS. The defendant provided a summary of his activity level, and in particular, referred to a number of occasions when he had apparently cycled a significant distance. I do not propose to set out each of those occasions, but for example, on 22 January 2012, he cycled 48.3 kilometres. The Strava records demonstrate that he cycled similar distances on a number of occasions between 15 January 2012 and 8 June 2014.
32 That internet material discloses that the plaintiff cycled on 26 occasions and either walked or ran on 113 occasions. In re-examination, the plaintiff said that previously he would cycle once a week and would cycle up to 50 kilometres at a time. He stopped cycling because of the pain he was experiencing. At present, he owns an expensive bicycle worth $5,000 to $6,000, which is sitting at his home, and I infer is no longer being used by him.
33 The plaintiff used to run up to 8 to 10 kilometres at a time. He experiences a burning sensation in his shoulder if he runs that far. He now runs about three or four times a week, limited to 6 to 7 kilometres, which is a mixed run and walk rather than being running only.
34 The plaintiff continues to snowboard. Some of the internet material appears to have been derived from the plaintiff’s Facebook page. Several photographs and accompanying comments show him at the snow. He candidly admitted that he does not have any difficulty snowboarding. He has purchased a four-wheel-drive which he uses for general purposes no doubt, but it also is useful to him in going to the snow.
35 The plaintiff’s Facebook material also shows him at various holiday locations in Asia and in Australia. None of the photographs suggest that the plaintiff is capable of placing a level of stress and strain on his shoulder in excess of that deposed to in his affidavits and oral evidence. Two of the photographs show him raising his right arm in an almost vertical position at his wedding and at the snow. He was taken to each of those photographs. He said that he can raise his right arm to that extent.
36 The plaintiff has been able to maintain his employment. He was previously employed by Olex Australia Pty Ltd and now is self-employed. He has experienced some problems with extensive use of a keyboard and a computer mouse. He has had very little time off work, which suggests to me that despite the problems he has with his work, they are rather more on the modest side.
Are the consequences serious?
37 There are a number of losses that the plaintiff has suffered which I consider point to the consequences of the impairment of the function of his shoulder being serious.
38 Firstly, he was previously pain free and had a full, free and unrestricted use of his right shoulder. He now has a level of pain and interference with the use of his shoulder, which I have summarised above.
39 I consider the plaintiff’s pain on movement; inability to tolerate previously easily tolerated stress and strain, and the interference with his sleep very significant. They are all the more significant, as the plaintiff has suffered those consequences from the time when he first suffered the injury to the present time, and it is probable that those consequences will continue indefinitely if not lifelong. Whilst his prospects of suffering additional pain and interference with the use of his shoulder by the onset of more obvious arthritic changes may be some distance off in the future, they nonetheless pose a risk factor to the plaintiff which I do take into account, but in the context referred to in the medical opinions.
40 Secondly, the plaintiff was undoubtedly a fit, strong, energetic and outgoing young man. The fact that he was able to cycle, run, engage in heavy gym work, play tennis, play golf, play basketball, wakeboard and snow ski demonstrates that in the clearest terms. He was a man who had an obvious level of pride in his physical fitness and his capacity to engage in what I consider to be very physically testing recreational and sporting pursuits.
41 I do not consider the fact that he retained some capacity to cycle and play basketball at a significantly lesser level for some time following the accident means that he has returned to a somewhat comparable position to what he was like before he suffered the injury. Further, his continued engagement in snowboarding and gym work, which is rather more rehabilitative when compared with what he undertook previously, are not enough to persuade me that what the plaintiff has retained means his application must fail.
42 The plaintiff has lost the capacity to cycle; to run the distances that he used to and as often as he used to; engage in gym work other than as rehabilitation; to play golf, tennis and basketball and to wakeboard. They are numerous in terms of recreational and sporting activities which he has lost.
43 I consider that the plaintiff is a stoic. He has made attempts to return to all of his pre-injury activities without the success he no doubt hoped for. What he now does by way of recreational and sporting activities is almost a shadow of what he was like beforehand and what he was capable of doing. I am fortified in reaching this conclusion because of the affidavit evidence of Mr Owen Brinson and Ms Sharlene Dyer, the plaintiff’s wife.
44 When the pain and interference with the use of his shoulder and the interference with his sleep are added into the picture, then I consider that what the plaintiff has lost deserves to be described as “serious” and consistent with the statutory test.
45 There are several other submissions made by Mr Jens which I should deal with now.
46 Firstly, Mr Moran described a surgical procedure that he believes has a high rate of success which the plaintiff could undergo. In his opinion, the procedure would lead to a reduction in the plaintiff’s symptoms and a return to a better level of functioning. It was not put on the basis that the plaintiff has unreasonably refused to undergo medical treatment, but rather, that it is a measure of the nature and gravity of the injury to the plaintiff shoulder. In other words, it is not intractable and untreatable condition.
47 Secondly, the plaintiff has not had any medical treatment of any substance for some time and is taking modest amounts of medication to treat pain. That, of course, is true and is a matter of some significance, but I do not consider it to be of overriding significance in the plaintiff’s case. The plaintiff has followed the medical advice he has been given to do gym work, which is precisely what he is doing. He has made a decision which he cannot be criticised about to take a conservative approach and not to pursue surgery. It must be remembered that he is taking some medication and has massaging provided by his wife to gain some relief that he needs.
48 Thirdly, the plaintiff continues to work. The difficulty I have with this submission is that the plaintiff’s work is not physical. It would be very different if his circumstances were similar to that of Dwyer, who returned to apparently physically arduous work. The plaintiff’s work has always been desk driven. Despite that, he does have some problems working with a computer, no doubt because the static nature of his posture and the position he occupies with his right arm when using a computer mouse.
49 Whilst I have weighed these matters up, I do not consider that they are so material to outweigh the losses suffered by the plaintiff, which I consider are sufficiently serious in order to satisfy the statutory test.
50 In reaching that conclusion, I have considered other impairments of a like kind.
Conclusion
51 For the reasons set out above, I will grant the plaintiff leave to bring a proceeding at common law to recover damages.
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