Rollo v Transport Accident Commission
[2015] VCC 1427
•11 September 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT WARRNAMBOOL
CIVIL DIVISION
Case No. CI-14-05993
| STEPHEN ALEXANDER ROLLO | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 27, 28, 31 August, 1, 3, 7 September 2015 | |
DATE OF JUDGMENT: | 11 September 2015 | |
CASE MAY BE CITED AS: | Rollo v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1427 | |
REASONS FOR JUDGMENT
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Subject: Serious Injury application
Catchwords: Transport accident; application for leave to bring damages claim; section 93 Transport Accident Act 1986; paragraph (a) of definition of “serious injury”; whether serious injury constituted by memory impairment or pelvic injury
Legislation Cited: Section 93 (4), (17) Transport Accident Act 1986
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Dwyer v Calco Timbers Pty LtdNo 2 [2008] VSCA 260; Haden Engineering v McKinnon [2010] VSCA 69
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird with Mr I Fehring | Stringer Clark |
| For the Defendant | Mr P. Elliott QC with Ms D Manova | TAC |
HIS HONOUR:
1 Mr Rollo was born in 1967. He began an apprenticeship as a painter during Year 12 of his education at Warrnambool North Technical School. Around the year 2000, he and a friend, Mr Stewart Ivermee, pooled their resources to purchase a property consisting of 100 acres of scrub at Nullawarre which, according to Mr Rollo, is about 20 kilometres to the east of Warrnambool. He said he purchased the property as:
“Just a lifestyle thing to get away from the rat race, so to speak …” Transcript (“T”) 66, L25 – 6
2 He built “a sort of shack” on the property. (T67, L2) On 22 February 2009, Mr Rollo and Mr Ivermee went to their Nullawarre property for some sort of get-together. According to Mr Rollo’s evidence:
“We happened to be out there for the start. We stayed for a while and it was still daylight at the time, and I think we were sort of - we were there for a while and I think we just sort of decided - I think the mozzies I think [from] memory that was sort of getting a bit thick, or something like that, and we were sort of sitting there and then basically said, ‘Look, you know, do we want to stay here’, and then he said - yeah, I said, ‘That's fine, we'll - you know, we'll stay here and that sort of stuff. And then he said he was fine to go and he didn't seem like he had any more than - than I had, because I didn't - you know, we only took a couple out and - - -“ (T105, L16 – 27)
3 Mr Ivermee took the wheel even although they were to travel back to Warrnambool in Mr Rollo’s vehicle. According to Mr Rollo:
“Because I – you know, because I'd had a couple and – and he said he was, sort of, okay with it, sort of thing and that he was fine to drive. I didn’t realise that he must have had some earlier on.” (T105, L30-T106, L1-3)
4 They had 5 to 10 kilometres of gravel road to traverse from the property until they reached a sealed highway leading back to Warrnambool. According to Mr Rollo:
“And I sort of remember looking up saying, ‘There's a - you know, there's two corners and that's all we've got to do’, and we're just sort of driving along nice, cruising along and we just sort of drove around them and this - the second one, we sort of just went off the road. Don't ask me why. I remember looking up thinking, ‘There's trees over there, that's okay, and there's this grass here, we should come out okay’, and I didn't think much of it at the time. And there was culvert in the ground, I mean a culvert, and we hit that and that's what flipped over.” (T106, L9-19)
5 The culvert to which he referred was not a mere table drain at the side of the gravel road but rather a concrete structure. (T107, L4)
6 Mr Rollo’s next memory was:
“Waking up in the paddock with all the flashing lights around.” (T107, L10-11)
7 Then, according to Mr Rollo:
“Q: What happened then?---
A: I remember the police trying to tell me to get up and I said, ‘I can't’, and they said, ‘We'll come and help you then.’ So they come and help me up and carried me back through the fence. And I'd fallen through the fence on my face and - and then put the ambulance - put me in the ambulance.”(T107, L12-17)
8 The ambulance was already on the scene and the paramedics attended to Mr Rollo immediately after his fall at the fence line. (T107, L20-25) Mr Rollo then remembers being taken by ambulance to hospital. He said he did not recall being asked questions to establish his state of alertness or ringing his wife. He remembered talking to the police but not to his friend. (T108) Mr Rollo believed that he was thrown from the vehicle in the course of the rollover. He has no memory of that and believes that as a matter of inference. (T109) Mr Rollo said that he could recall at the time that he had not been at the wheel of the car and that he was not wearing a seatbelt. (T110, L4-7)
9 Records from the ambulance service show that the ambulance service received a call to the scene at 22.13. The ambulance was despatched at 22.18 and arrived at the scene at 22.53. Mr Rollo was “loaded” into the ambulance at 23.35 and arrived at Warrnambool Base Hospital at 23.57. He was subject to triage procedures at 23.58 and was taken off the stretcher at 15 minutes past midnight on 23 February.
10 The ambulance documentation also records at Defendant’s Court Book (“DCB”) 55 that Mr Rollo was unable to recall who was driving the vehicle and whether he was wearing a seatbelt or how he exited the vehicle. These notes are inconsistent with Mr Rollo’s account in the course of his evidence to the Court.
11 On examination at the hospital, he was found to have grazes on the left upper arm and elbow, puncture wounds to the elbow, bruising of the right foot. A hard collar was fitted to keep the head and neck still. There were scratches on the left forearm and apparently scratches to the back as well. Mr Rollo also complained of groin pain which persisted for a couple of hours. At approximately 3.30am, he was given Panadol or Nurofen and released from the Emergency Department. (Clinical Records (“C”) 77)
12 The hospital’s records state that at 2.00am on 23 February, Mr Rollo was lucid, alert, orientated and cooperative. (T118, L10) According to Mr Rollo, he was unable to walk from the Emergency Department and had to be taken in a wheelchair.
13 He then attended his general practitioner feeling very sore and disabled. On the second presentation at the general practitioner’s clinic, Mr Rollo said that he wanted to be x‑rayed. He was warned that he would incur a hefty charge. It turned out to be $700. He then had an x‑ray at the St John of God Hospital. With results of this x‑ray, he was readmitted to the Warrnambool Base Hospital. Mr Rollo said:
“That’s when they all could not stop doing plenty for me, then.” (T120, L13-14)
14 He was in the care of Mr Sundaram. He remained in the hospital for some time simply being held immobile. Mr Rollo and his wife made a complaint as to his treatment on the 22nd and 23rd February. The hospital authorities conceded that on first arrival at the hospital, x‑rays of his neck, chest and pelvis should have been carried out. It was an error on the part of a junior doctor and a locum practitioner not to carry out those x‑rays. The hospital offered an apology. (C67)
15 Mr Rollo said he was off work for some months but was then able to get back to restricted duties and has
“… continued with those duties other than for a period when I had a further accident in August 2011 and injured my right shoulder, arm and hand.” (Plaintiff’s Court Book (“PCB”) 6)
16 Before his accident, Mr Rollo said he used to go dirt bike riding in the bush with friends, probably monthly. He does ride the dirt bike now:
“… only for 30 minutes at a time with my family.” (PCB 8)
17 He said he used to enjoy riding mountain bikes before the accident, but attempts to resume mountain bike riding had been unsuccessful after two or three attempts. (Plaintiff’s Court Book (“PCB”) 7-8, paragraph [11]) In August 2011, he and his family had taken some four months off to make a road tour of Western Australia and also to visit one of his “in-laws” in Exmouth, Western Australia. (T20) The dirt bike was strapped to the front of the caravan which the family towed across to Western Australia. He was riding down the road to look at the beach, when a kangaroo bounded out in front of him and collided with it. (T21) This time, Mr Rollo was off work for “a good four months”. (T25, L26) He injured his right arm which is the one he uses for writing. (T26, L1-3) He had pins placed in the thumb of his right hand which have since been removed. (T26, L7-10) As a result, he has had to modify his mode of painting, sharing the work between his right hand and his left hand. He has difficulty doing overhead work for long periods. (T26, L16-20) Mr Rollo generally works alone but as a result of the two accidents, he had to rely on employees, in particular Mr Ivermee who was the driver of the vehicle in the first accident. (T27)
18 This situation persisted until the beginning of 2010. By the time Mr Rollo had set off on his trip to Western Australia, he was back to working solo. (T27, L19-21) Mr Rollo said that he much preferred doing all the work himself. (T28, L15-23) Mr Rollo’s business does not rely on advertising but on a small group of established customers. He does a lot of repeat work. (T29, L15-27)
19 Mr Rollo now lives at Illowa, which is approximately 20 kilometres to the west of Warrnambool toward Portland, on sixty acres. Two acres surround his house. The rest is let out for grazing. The residence on site was Mrs Rollo’s uncle’s farm and the house was an old run down cottage. The Rollos have entered into a building contract to extend the cottage, effectively doubling its size (T32), and that work is nearing completion.
20 Mr Rollo complains that he has difficulty raking and digging the area around his house. He has to rely on assistance from his now teenage sons. He used to mow lawns with a ride-on mower before the accident but now, due to bouncing on rough terrain, he finds it difficult to do this and relies on his sons. Mr Rollo says that he finds it difficult even to sit through an entire movie. He said:
“I often get up and walk around or something else during the film.”
21 He said:
“Since the injury, intimacy with my wife has caused me increased pain and discomfort. I can no longer hug my wife in bed as I find lying on side also causes increased pain.” (PCB 8)
22 Mr Rollo says that he continues to have problems particularly in his pelvis and left hip and his neck.
“I have a constant ache in my pelvis and left hip.”
23 He receives osteopathic treatment and takes Panadol Osteo
“daily because of the pain particularly in the pelvis and left hip region but also in the neck.” (PCB 6 [4])
24 Mr Rollo says the pain never goes away from his pelvis and left hip. Simple tasks like sitting in a lounge chair
“cause me increased pain. I can sit for approximately 30 minutes before the pain becomes unbearable and I need to stand and walk around to relieve the pain.” (PCB 6 [5])
25 He said that his walking was restricted and after being on his feet during the day the pain increases in his hip and pelvis.
“If I have a day where I need to twist and turn a lot, I will [need] extra Panadol Osteo to keep going.” (PCB 7)
26 His difficulties with bike riding have already been described. He says that he is now unable to go surfing because of his hip and pelvis injury.
27 A particular complaint is of restrictions in memory and concentration. He said:
“I now need to write all of my tasks to complete on a piece of paper otherwise I will not remember what I need to do. I often have loose notes around the house and the workplace to remind me to do things – these notes consist of simple things like ‘buy a bag of concrete’.” (PCB 8, [15])
28 He says he has difficulty completing his bookwork and his difficulties in concentration prevent him from completing tasks.
“As I am constantly double-checking my work. I am now easily distracted, if I am already working on a task I can’t start something else at the same time.” (PCB 8-9 [16])
29 His wife frequently has to prompt him as to things that need to be done.
30 Solicitors acting for Mr Rollo filed an Originating Motion seeking:
“… leave pursuant to s93 of the Transport Accident Act for the plaintiff to commence proceedings on the basis that the plaintiff has suffered a serious injury.”
31 In a statement of particulars of injury filed 27 February this year, the following injuries were identified as being relied on:
·closed head injury with cognitive impairment and emotional disturbance;
·displaced fractures of the left superior and inferior pubic rami and sacrum with resultant pain, stiffness and dysfunction of the left hip and pelvis;
·fracture of the left triquetrum (wrist) with resultant pain, stiffness and dysfunction of the left wrist;
·injury dysfunction and impairment of the cervical spine.
32 This document states that Mr Rollo relies on sub-paragraph (a) of the definition of serious injury in s93(17) of the Transport Accident Act 1986.
Legal considerations
33 Section 93 of the Transport Accident Act 1986 precludes a plaintiff from recovering damages for the results of a transport accident except in accordance with the provisions of the section. Sub-section (2) permits a plaintiff to recover damages for such an injury if the Transport Accident Commission determines the person’s degree of impairment and the injury is a “serious injury”. Sub-section (3) deems an injury to be “serious” if the impairment assessment made by the Commission is 30 per cent or more. Under sub-s(4), if the determined impairment is less than 30 per cent, then the damages claim may be brought only if the Commission is satisfied that the injury is “serious” and issues a certificate or a court gives leave to bring the proceeding. Sub-section (6) provides that the court must not grant leave “unless it is satisfied that the injury is a serious injury”.
34 Under sub-s(17), the expression “serious injury” is defined as follow:
“In this section—
‘pain and suffering damages’ means damages for pain and suffering, loss of amenities of life or loss of enjoyment of life;
‘pecuniary loss damages’ means damages for loss of earnings, loss of earning capacity, loss of value of services or any other pecuniary loss or damage;
‘serious injury’ means—
(a) serious long-term impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c)severe long-term mental or severe long-term behavioural disturbance or disorder; or
(d)loss of a foetus.”
35 In the present case, reliance is placed solely upon paragraph (a) of the definition.
36 In the early days of the operation of these provisions, the Full Court of the Supreme Court of Victoria gave what has become a hallowed analysis of the operation of these provisions in Humphries v Poljak [1992] 2 VR 129. In a joint Judgment, Crockett and Southwell JJ said:
“Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs(17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think "long term" is not an expression likely to give rise to difficulty. To be "serious" the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as "very considerable" and certainly more than "significant" or "marked"? Beyond such guidance it is, we think, not possible to go. The only other assistance in the resolution of such applications that can be gained will derive from the trends that will emerge from the determination in the future from time to time of a range of applications including those the adjudication of which is now our responsibility.”
37 Earlier, on page 114, their Honours had said, speaking of the definition of serious injury in sub-s(17):
“…It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para(a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of para(c)…”.
38 In Richards v Wylie [2000] 1 VR 79, the Court of Appeal set aside a determination of serious injury made by a judge of this Court. The error in the trial judge’s assessment was identified by Winneke P as follow:
“In my opinion, it is implicit in his Honour's conclusions that he was accepting that the respondent's mental disorders or disturbances were, to a significant degree, producing the symptoms upon which his Honour relied in finding that the respondent was suffering from a long term impairment of a body function…”
39 Buchanan and Chernov JJA concurred. In his concurring Judgment, Chernov JA stated:
“The requirement formulated by Crockett and Southwell, JJ. in Humphries v. Poljak[9] that, in the context of determining whether the injury sustained by the plaintiff as a result of the accident is a "serious injury" a distinction must be maintained between the physical consequences of the injury and those which have resulted in mental or behavioural disturbances, is a reflection of the wording of s.93(17) of the Transport Accident Act 1986. Thus, so far as is relevant, the consequences of the injury are to be determined by reference to the definition of "serious injury" in either para.(a) or (c). Although the textual distinction between those paragraphs may be simply stated, it will often be a difficult task for the trial judge to determine which of para.(a) or (c) applies for the purpose of establishing whether an injury and its manifestations amount to a "serious injury".
It is likely that in many cases the injuries caused by a transport accident will have physical as well as mental consequences for the plaintiff, with the result that it may appear that either definition could be appropriately applied in determining whether the relevant injury is a "serious" one. In such circumstances, which test is appropriate will fall to be determined by the consideration of what is the dominant cause of the plaintiff's condition. Is it predominantly the result of the physical injuries arising from the accident, or is the dominant cause of the condition the mental and psychological factors flowing from the accident? But whichever test is to be applied, in determining if its requirements have been satisfied, all the relevant consequences for the plaintiff arising from the accident are to be considered. Thus, if it is decided that, in a given case, the test in para.(a) is appropriate because the plaintiff's relevant condition has been brought about predominantly by the relevant physical injuries, in deciding whether the relevant impairment is serious and long term, regard is to be had not only to the physical cause of the impairment, but also to any mental or behavioural disturbances flowing from the physical injury, such as "functional overlay" to which the President refers in his judgment. The same applies where the dominant cause of the plaintiff's condition consists of mental or psychological factors. In such a case, any accompanying physical incapacity may be taken into account in determining whether the plaintiff's mental or behavioural disabilities are serious and long term. But the first task is to decide whether the dominant cause of the plaintiff's condition falls to be determined by reference to the criteria in para.(a) or (c). Such an approach is likely to prevent the tail wagging the dog or creating the "anomaly" to which their Honours referred in Humphries v. Poljak[10] which might otherwise take place as it did in this case. The medical evidence summarised by the President seems to establish that, although the plaintiff suffered a soft tissue injury of the cervical spine, it was the operation of mental and psychological factors that were the dominant cause of his condition. In those circumstances, it was inappropriate to determine the relevant issue by applying the criteria in para.(a) of the definition section. As the President has pointed out, in the circumstances of this case, the question whether the plaintiff suffered a "serious injury" fell to be determined by the provisions of para.(c) and not para.(a).”
40 In the present instance, reliance was placed on behalf of the plaintiff solely on paragraph (a). The effect then is that if pain and restrictions are found to be relevant bodily functions which are predominantly psychologically-driven, as distinct from the consequences of physical injury, such impairments or restrictions must be put to one side and ignored for the purposes of determining whether the plaintiff in this case has sustained a serious injury.
41 If, however, pain and restrictions are found which are predominantly caused by physical injury, it is proper to consider not only the consequences of the physical injury but also any “functional overlay”.
Expert opinions
42 Mr N Sundaram, who was in charge of Mr Rollo’s treatment following his re-admission to Warrnambool Base Hospital, reported in a letter to Mr Rollo’s solicitors dated 19 April 2011:
“Mr Rollo sustained fracture of the pubic rami, sacrum and triquetrum. The condition of the pelvis and wrist had improved and the fractures seemed to have healed. As the fracture has healed well, it is likely that he will remain symptom free in relation to these fractures.” (PCB 19)
43 Mr Sundaram was also involved in Mr Rollo’s treatment following the second accident in Western Australia in 2011. He reported in a letter to Mr Rollo’s solicitors dated 1 October 2013:
“The patient recovered to a good extent from his right shoulder injury.” (PCB 24)
44 Mr Rollo’s treating general practitioner, Dr Peter Oliver of Jamieson Street Medical Clinic, reported to Mr Rollo’s solicitors by letter dated 12 April 2011 (PCB 25-6) that his injuries from the 2009 accident included:
(1)pneumothorax;
(2)fractured pelvis;
(3)fractures triquetrum;
(4)multiple cuts and abrasions
45 He reported a number of attendances on Mr Rollo from 20 March 2009 to 16 June 2009, remarking:
“My role in this period related to analgesia and medical certificates, while his specific treatment remained in the hands of Mr Sundaram.”
46 On 23 December 2009, Dr Oliver said that he saw Mr Rollo:
“… with flank pain, I ordered an x‑ray but never saw him about this issue again.”
47 On 22 February 2011, Mr Rollo complained of “ongoing hip discomfort” and Dr Oliver referred him to Mr Grave “for further assessment”.
48 Two follow-up reports dated 20 September 2013 and 18 December 2014 were furnished to Mr Rollo’s solicitors. The first report described an attendance for analgesic “following an operation he had had 11 days prior to presentation.” (PCB 27) This appears to be surgery relative to the accident in Western Australia. In a further report dated 18 December 2014, Dr Oliver reported that Mr Rollo last attended the Jamieson Medical Clinic on 1 December 2011. (PCB 28)
49 Dr Murray Grave, musculoskeletal physician, reported to Mr Rollo’s solicitors in a letter of 10 June 2011 (PCB 29-34) that Mr Rollo presented to him for assessment on 7 April 2011 and that he saw Mr Rollo on two other occasions, being 7 April 2011 and 27 April 2011. He said that Mr Rollo complained of pain “in the left lateral hip”, saying:
“… that the pain is there during the night and day but is aggravated significantly by sitting with hips flexed.”
50 He said the pain was:
“… worse at night…and he also [could not] lay [sic] on his left side.”
51 The pain was said to vary during the day depending on activity. He described the pain as an ache which does not radiate down the legs. The pain was said to be aggravated by walking, sitting and straining.
52 Dr Grave referred to an x‑ray of the lumbar spine dated 30 December 2009 which was unremarkable. An x‑ray of the pelvis carried out on 22 July 2009 showed:
“The fracture of the left side of the pelvis is uniting well and showing good consolidation at this stage.”
53 An x‑ray of the pelvis on 6 April 2009 found:
“ the fracture line still visible and bilateral changes osteoarthrosis in the hips secondary to femoro-acetabular impingement.”
54 The x‑ray of the left wrist showed the comminuted fracture:
“… very difficult to visualise.”
55 A CT scan of the left wrist carried out on 20 March 2009 found:
“The CT imaging confirms the suspicion of a triquetral fracture. The fracture is in fact comminuted. No dislocation or subluxation is seen and the scaphoid appears intact. There is a small bone island seen in the distal scaphoid as well as within the base of the third metacarpal. These are not of significance. No other abnormality is noted. The distal radius and ulna appear intact. There is a very small corticated bone fragment seen in relation to the radial styloid ? small fracture ? accessory ossification centre.”
56 He also referred to an x‑ray of the left distal forearm and wrist carried out on 12 March 2009 which raised the possibility of a triquetral fracture which was confirmed in the CT scan. At PCB 33, Mr Grave suggested a trial of Celebrex, an anti-inflammatory, for two weeks. He found that Mr Rollo “did have a good range of hip joint movement” but had a significant appearance on x‑ray with the possibility of a Femoroacetabular impingement (FAI). He recommended that an opinion be obtained from Mr Stoney who does arthroscopic hip surgery. Mr Grave suggested exercises to address muscular imbalance and trigger points in the gluteal musculature and iliopsoas. On a review, Mr Grave found a good response to the Celebrex. He concluded that Mr Rollo’s pain was likely to involve an inflammatory component. (PCB 32) Mr Grave suggested that Stephen continue with Celebrex for a week and then stop this medication, though he may have to reinstate “at times of flair [scil flare]”. (PCB 33-34)
57 Mr Rollo has been receiving physiotherapy treatment from Mr Toby Pettigrew who is his brother-in-law. Mr Pettigrew furnished a report to Mr Rollo’s solicitors dated 10 March 2012. Mr Pettigrew reported that he saw Mr Rollo on only two occasions “as a client”. Mr Pettigrew said that with the passage of time,
“Mr Rollo has made what seems to be a full recovery. He was able to return to work in full capacity and although he had some limitation with his left hip/groin pain, he was able to carry out normal ADL’s and work duties with minimal disturbance. It is my understanding that he consulted Dr Murray Grave in regards to his continuing left hip, but I am unsure as to the result of this investigation … Mr Rollo seems to have made an excellent recovery from the injuries sustained in the accident of 22/2/09. He has had some restriction in his physical activities and was unable to work to full capacity for about three months post discharge from hospital. He still has some underlying left hip/groin pain which may progress with time, but may also stabilise and remain at its current level.” (PCB 36)
58 Mr Pettigrew provided a second report dated 13 February 2014 dealing principally with the effects of the 2011 accident in Western Australia. He said of the 2009 accident:
“He seemed to have recovered well from his previous injuries.”
59 As to the consequences of the second accident, he noted that at the conclusion of the treatment which he gave Mr Rollo, Mr Rollo:
“… was still experiencing difficulty working overhead, fine jobs such as prolonged sanding and lifting any heavy weights (eg large paint tins). Functioning, he could not fully rotate his arm (eg freestyle stroke/surfboard paddle), but it was gradually improving. He would get very sore after a long day of work, but it would generally settle with ice and NSAIDS (anti-inflammatories), (PCB 37)
60 Dr Sean Gleeson practises as an osteopath. He reported to Mr Rollo’s solicitors in a letter dated 10 February 2014 in which he referred to the two accidents. Dr Gleeson referred to Mr Rollo’s returning to work full-time or close to full-time work. He said:
“This, however, was not without restriction and pain. In my opinion this pain and restriction would have been unlikely to have occurred prior to the accidents, if it had it would have been markedly less frequent and intense.”
61 He remarked:
“I was impressed at how well Mr Rollo had healed from the significant injuries that he had sustained and that he had chosen to return to the level of work to which he had. This was full or close to full time. The trade-off for this effort was that Mr Rollo was in a great deal more discomfort and pain than he ever had been prior to the accidents.”
62 According to Dr Gleeson:
“Mr Rollo in my professional opinion will need high quality manual health care for years to come in order to heal as fully as is possible. Pursuant to this, if he is to work physically hard like he has prior, then he will also need ongoing manual therapy in order to be able to do so. … Mr Rollo will have majorly increased susceptibility to low back and cervical dysfunction and pain and has a greatly increased risk of discal degeneration and herniation. Further to the likelihood of discal pathology is the possibility of headaches and aneurism from the head trauma and significant effects of the pain induced sleep disturbance.” (PCB 39-41)
63 Early this year Mr Rollo commenced osteopathic treatment from Jason Dargan. On his first visit to Mr Dargan on 19 January 2015, he complained of “ongoing bilateral hip pain”. He has had a total of nine treatments from Mr Dargan. According to Mr Dargan, Mr Rollo told him that
“His pain was in the bilateral gluteal region. Not moving and having long periods of rest aggravated [his] pain. Certain job techniques also aggravated his pain, like ladder climbing and heavy lifting of paint tins, especially lifting and twisting at the same time.”
64 This meant that his hours of work had to be reduced. Mr Dargan noted a decrease in the range of motion of Mr Rollo’s hips and:
“There was a noticeable tightness in both gluteal muscles as well as his lumbar erecter spinae and mid to upper thoracic muscles.”
65 In Mr Dargan’s opinion, Mr Rollo:
“… would find it hard to return to the same level and intensity of work [as before the accidents] as he is hindered with a lack of strength and stability in his pelvis. He also gets fatigued when having to work with ladders and scaffolding. The constant up and down nature of the work fatigues his lower back and hips.”
66 Mr Rollo should, in Mr Dargan’s opinion, concentrate on smaller painting jobs and avoid ladder and scaffold work. (PCB 42-43)
67 In addition to the treating practitioners, Mr Rollo’s solicitors referred him for medico‑legal assessment. Mr Rollo was assessed by Mr David Brownbill, a consultant neurosurgeon, in the presence of his wife on 18 May 2011. Mr Brownbill referred to the history of the accident and mentioned:
“… post-traumatic amnesia (loss of memory for events immediately after the accident) of an uncertain period but likely 10 to 15 minutes, his first memory is of lying in a paddock nearby.” (PCB 44)
68 Mr Brownbill referred to “current treatment” as not entailing any physical treatment or taking any medication “apart from intermittently Celebrex”. He noted a complaint of pain which comes and goes every day with prolonged sitting or lying in bed “outside both hips”, more pronounced on the left. He also noted a complaint of mild aching in the left wrist, “if I overdo it”. The doctor noted “no problems with memory and concentration” which he said Mr Rollo described as normal. Mr Brownbill recorded Mr Rollo as “adding that he does not need frequent reminding or to use notes”. He denied neck pain or back pain but referred to intermittent pins and needles in both hands but no weakness or numbness in the arms. According Dr Brownbill:
“… There has not been any leg pain, weakness, pins and needles, or numbness. There has not been any bowel or bladder disturbance.” (PCB 45)
69 Mr Brownbill said that issues of psychiatric disturbance lay outside his field of expertise and concluded:
“Any post-traumatic amnesia sustained was brief and he now does not have any symptoms relevant to a concussive head injury and his neurological examination is normal. I consider it unlikely that he has sustained any cerebral damage, however a full assessment of cognitive function would require a neuro-psychological assessment.
I do not anticipate any untoward neurological sequelae.
No neurological impediment has been demonstrated to future activities either employment or social in nature.”
70 The solicitors also referred Mr Rollo to Mr John Aloysius Henderson who furnishes an orthopaedic and general surgical medico‑legal service. Mr Henderson provided a report initially dated 25 May 2011 but finally edited on 28 October 2011.
71 Mr Henderson took a history of the accident with the detailed description of the form of rollover which Mr Rollo’s vehicle underwent. According to the history, Mr Rollo was thrown out of the passenger window which was wound down. (PCB 50) There was post-traumatic amnesia of up to 15-20 minutes upon this account. (PCB 51) As at this assessment which occurred on 25 May 2011, that is, before the Western Australian accident, Mr Henderson recorded the following complaints:
(i) bilateral hip region ache predominantly on the left;
(ii) cannot lift anything heavy;
(iii) coccyx bone pain;
(iv) broken sleep;
(v) cannot sit down on the couch;
(vi) left wrist pain. (PCB 51)
72 According to Mr Henderson, Mr Rollo told him that his neck was “ok” and that he does not suffer any neck pain. On the subject of memory, Mr Henderson records:
“Your client says his memory is alright; but I felt he was being a little evasive about this. He told me that the reason he thinks he might have some problems with his memory was because of his being ‘after 40’. In other words, I believe your client does actually have a problem now with his memory, but he has convinced himself that this is because he is now more than 40 years old! He seems to be very much on the defensive about any possible problems he might have with his memory.” (PCB 52)
73 According to Mr Henderson, Mr Rollo told him that he could stand “ok – but not all day” and could sit for a maximum of one hour. He could walk “two to three hours maximum”. After that he needs to have a rest. He said that he could not carry 15 kilogram paint tins “very far anymore, now”. As to range of motion, Mr Henderson found significant restrictions in neck movements “just under half the normal range”. (PCB 53)
74 Mr Henderson noted a complaint of pins and needles in both arms following the examination of shoulder joint movement. He found some abnormal motion of shoulder joints on both sides. (PCB 54) As to the left wrist, Mr Henderson found a normal range of left wrist movement “except for flexion”. Mr Henderson found no neurological signs or defects in reflexes or sensation or motor power in the legs. Mr Henderson made the following diagnoses:
75 First, he noted “a significant head injury, with quite severe concussion”. He concluded that Mr Rollo had been unconscious for 15-20 minutes after the accident. As to memory disturbance, he suggested that if memory problems continue a neurological assessment might need to be considered. Mr Henderson thought it was likely that there had been a head injury. He noted some neck stiffness and suggested that there be an x-ray carried out of the neck. (PCB 57) He noted limitation of movement in the left shoulder, particularly as to abduction. He advocated x-rays and “dynamic ultrasound studies” of both shoulders. He noted left wrist injury which resulted in “some fairly minimal loss (some 20 degrees loss of palmar flexion)”. He referred to rib fractures, a fracturing of the sacrum “through the left sacral wing”, as well as pelvic fracture. He advocated an MRI of the left hip joint. (PCB 58)
76 In accordance with the 4th Edition of the AMA Guides, Mr Henderson found a 15 per cent whole person impairment representing the combination of a five per cent whole person for the neck, six per cent for the left arm and five per cent for the right shoulder.
77 In accordance with the suggestions made by Mr Brownbill and Mr Henderson, Mr Rollo’s solicitors referred him for medico-legal assessment to Dr Peter J Dowling, a clinical neuropsychologist. The assessment took place over two sessions on 14 February 2014 and 15 February 2015 with the sessions occupying a total of seven hours. Referring to the history of the accident, Dr Dowling noted that when initially examined at the scene he was found to have a Glasgow Coma Scale of 14 out of 15 and had dilated pupils. He said that on his reading of the material Mr Rollo continued to be confused, with a Glasgow Coma Scale of 14 “during the trip to hospital”. He noted a record of uncertainty on Mr Rollo’s part as to whether he had lost consciousness. (PCB 67)
78 Dr Dowling recorded:
“When asked about any changes in his cognitive functioning as a result of the accident, [Mr Rollo] said that he tended to ‘laugh things off’. Whilst he said that his memory was alright, he later stated that his memory for names was `shocking’. His concentration was ‘a bit less’ and he could only manage working for one hour before he needs to take a break. Also he was easily distracted by other people and he had lost the capacity for multitasking. He could only handle one thing at a time now. Later he added, ‘It’s amazing how vague I’ve got after the accident. I used to be able to do maths paperwork in my head. Now I have to write it down’.” (PCB 72)
79 Dr Dowling noted that according to Mrs Rollo, whom he interviewed separately:
“From 2009-2013, [Mr Rollo] had a significant emotional reaction to the accident. He was very angry about how he had been treated at the accident scene and his initial treatment in hospital. He tended to verbalise his anger and he talked frequently about his treatment, particularly after consuming alcohol. In fact he talked constantly about the accident but there never seem to be any resolution as a result of his talking. Also he had ‘a short fuse’ with the children but his tolerance and interaction with them gradually improved…It was only in the last few months of 2013, that he became more emotionally settled. His receiving treatment from an osteopath during 2013 seemed to have a positive emotional impact.”
80 Mrs Rollo reported:
“That she had not noticed any obvious changes in his memory or concentration. She considered that his long term memory was very good and his day to day memory was alright. He had always been an active person and this was still the case.” (PCB 73)
81 Mr Dowling assessed Mr Rollo’s cognitive function by reference to the Wechsler Adult Intelligence Scale – 4th Edition (WAIS-IV). Mr Rollo scored in the middle of the low average intelligence range achieving a full scale IQ of 84. He noted “a modest seven point difference” between Mr Rollo’s verbal and non-verbal skills “in favour of the latter”. His verbal skills were “at the upper end of the low average range” and his non-verbal skills were “on the lower side of the average range”. He scored at the lower end of the low average range of the Working Memory Index and processing speed.
82 Dr Dowling said:
“…taking into account his educational history, his employment history and his scores on certain WAIS-IV subtests, [Mr Rollo’s] premorbid verbal ability was estimated to have been on the lower side of the average intelligence range. His premorbid non-verbal skills were probably at least a little better than his verbal skills and so his premorbid non-verbal ability is conservatively estimated to have been on the upper side of the average intelligence range. Since all of his current scores on the WAIS-IV summary measures are below his expected level, a persisting decline in the number of cognitive skills is suggested.” (PCB 81)
83 According to Dr Dowling:
“There is support for some acquired limitations in higher level verbal skills. [Mr Rollo] displays a reduced efficiency in verbal expression when he attempts to explain complex or abstract ideas, such as social practices.” (PCB 82)
84 Dr Dowling found that Mr Rollo had sustained “moderate traumatic brain injury”. He found, in accordance with the 4th Edition of the AMA Guides, s4.1b that Mr Rollo fell within Category 1, namely, “Impairment exists but ability remains to perform satisfactorily in most activities of daily living”. This gave an impairment rating of eight per cent. He also assessed a further five per cent impairment based on emotional and behavioural disturbance (s4.1c of the AMA Guides).
85 Dr Dowling was requested to comment upon the neurological assessment conducted of Mr Rollo at the request of the Transport Accident Commission by a Dr Ian Stuart. First, Dr Dowling noted that Dr Stuart’s assessment was made in a single session and therefore entailed an abbreviated application of the WAIS-IV testing protocol. (PCB 87)
86 Dr Dowling noted that a major point of difference between his assessment and that conducted by Dr Stuart was as to the severity of the issue. Dr Stuart referred to a number of assessments which had been conducted by neurologists or neurosurgeon. Dr Dowling commented:
“In reviewing all of the supplied reports, Dr Stuart’s second report failed to give consideration to the inherent unreliability of self-report of loss of consciousness and the self-estimate of the duration of any disturbance to mental state following traumatic brain injury. Also he ignored the objective evidence included in my report.”
87 According to Dr Dowling, “a conservative estimate of the duration of PTA (post-traumatic amnesia) was probably four hours”. This, according to standard criteria, would grade Mr Rollo’s brain injury as moderate. (PCB 89)
88 Insofar as Dr Stuart, in his second report, concluded that there was no evidence of impairment of neuropsychological functioning, Dr Dowling said this conclusion was “fundamentally flawed and contrary to the actual results that [Dr Stuart] obtained when he conducted a neuropsychological assessment..”. (PCB 91)
89 In accordance with the suggestion by Dr Brownbill, his solicitors referred Mr Rollo for assessment by consultant psychiatrist, Dr Michael Epstein, who saw him for assessment on 4 March 2015 and provided a report to the solicitors dated 6 March 2015. After setting out a detailed history, Dr Epstein recorded that Mr Rollo, “Had no obvious limitation of movement. He was able to provide a comprehensive account of his history”. He found his speech fluent and normal in rate and volume but he appeared “mildly depressed during the course of the interview”. (PCB 103)
90 Dr Epstein found no formal thought disorder. There were no delusions or suicidal thoughts or intent. There were no formal abnormalities of perception such as hallucinations. Under the heading “Cognition”, Dr Epstein records, “His attention, concentration, working memory and speed of information processing appeared within normal limits”. According to the doctor, Mr Rollo possessed insight and his judgement did not appear to be disturbed. He observed some changes of behaviour and Mr Rollo said “he has become more isolated and irritable”.
91 Dr Epstein recorded Mr Rollo’s telling him:
“The accident was upsetting and he was angry about the attitude of the driver who caused the accident, the attitude of the police and the negligent treatment provided by the hospital initially”.
92 Dr Epstein noted a suggestion by Dr Dowling of right frontal lobe dysfunction:
“Suggesting an acquired brain injury. These symptoms may have been present but are certainly not present at the moment. There was no evidence during the course of the interview of any significant cognitive dysfunction or any marked emotional disturbance.” (PCB 104)
93 Dr Epstein diagnosed, “A mild chronic adjustment disorder with depressed mood as a consequence of ongoing pain, discomfort and disability”. In accordance with the Guide to the Evaluation of Psychiatric Impairment for Clinicians, Dr Epstein found 10 per cent impairment caused by the accident which was secondary to physical injury.
94 Mr Geoffrey Klug assessed Mr Rollo for medico-legal purposes at the request of his solicitors on 10 October 2014 and reported in a letter dated 8 October 2014. According to Mr Klug, Mr Rollo complained of pain over the outer side of both hips describing the pain as being “niggly” and varying in intensity. Secondly, Mr Rollo was recorded as complaining of discomfort in his right arm, in the region of the right shoulder and his right thumb. He complained of similar though less severe symptoms in his left arm. Mr Rollo told Mr Klug that,
“There is some impairment of his memory function. He tends to forget such details as names and certain details. To some extent he relies on written information to remind him as to what he should be doing.”
95 Mr Rollo also complained of difficulty in coping with multi-tasking where he “tends to become a little confused”. According to the history taken by Mr Klug:
“He is self-employed and has two employees to undertake most of the physical aspects of the current employment. With some difficulty he copes with the provision of quotes and other details in regard to his business. He also told me that particularly in recent times he has become less sociable. He is disinclined to associate with friends as much as he did in the past. He is not certain why this has occurred.” (PCB 108)
96 Mr Klug, in reference to Dr Dowling’s first report said:
“In general I would have expected a good recovery from the type of injuries sustained by this person but I would certainly be of the opinion that on occasions a concussive injury of this type may be associated with some minor but persistent changes in the neurocognitive function. I would see no reason to doubt the interpretation provided by the neuropsychologist [Dr Dowling].” (PCB 111)
97 Mr Klug provided a supplementary report dated 6 May 2015 after he was referred to the hospital records of Mr Rollo’s treatment. Mr Klug said:
“I feel it is more probable than not that in fact he did have a short period of loss of consciousness and that this would be considered a minor or the most mild concussive-type head injury. I still remain of the opinion that the head injury is not responsible for any impairment of physical function.” (PCB 112)
98 The doctor concluded, having referred to Dr Dowling’s report:
“As I indicated, I see no reason to doubt the interpretation of the neuropsychologist after assessing this person. I would have to be of the opinion that although the head injury appeared to be of a relatively mild degree, it could be responsible for some changes in the area described and would I [scil I would] see really no reason to change the impairment assessment I previously forwarded to you.”
99 Mr Klug noted that Mr Brownbill was of the opinion that it was unlikely there was any impairment of cognitive function but he did not have the advantage of a neurological report. (PCB 113)
100 As late as June 2015, the solicitors referred Mr Rollo to Dr John King, neurologist, for medico-legal assessment. Dr King referred to a number of the findings made, notably by Dr Dowling, Dr Epstein, Mr Pettigrew and Mr Brownbill. (PCB 115) Dr King noted (at PCB 116) that Mr Rollo, “complained that he could not sort things out, he could not multitask and could only work ‘in his own world’. He had to write himself notes. His wife handled the finances as she always did. He had no problems with driving or had he become lost.” [Presumably this last sentence should read “He had had no problems with driving nor had he become lost.]
101 Dr King noted a CT scan of the brain carried out on 24 February 2009 which showed the brain to be normal. (PCB 117) Dr King referred to the period of post-traumatic amnesia of about 10-15 minutes “after which he recalls the events which took him to WBH [Warrnambool Base Hospital]. This would be considered a mild head injury”. (PCB 118)
102 Mr Klug’s assessment showed a short period of loss of consciousness “but at WBH he had a normal Glasgow Coma Score. This indicates he had a minor or at most mild concussive type head injury”. In Mr King’s judgment it was “a very mild head injury based on the negligible retrograde amnesia and post-traumatic amnesia of 10-15 minutes”. He said that Mr Rollo gave a clear description of events after the accident when he regained consciousness in the paddock. This would not be consistent “with a post-traumatic amnesia of four hours”. He found a mild limitation of daily social and interpersonal functioning which he assessed at five per cent whole person impairment in accordance with Chapter 4, Table 3 of the AMA Guides. (PCB 119)
103 Finally, on 19 June 2015, Mr Rollo was referred to Mr Roger Westh, orthopaedic surgeon, for medico-legal purposes to conduct an assessment in accordance with the 4th Edition of the AMA Guides. Mr Westh recorded current complaints of pain in the lower spine and sacral region and ache and discomfort in the hips, discomfort sitting for long periods, discomfort in bed requiring him to roll over from side to side and change positions frequently. Mr Rollo was recorded as complaining of limitations with lifting, with pain in hips and pelvis after lifting ladders and difficulty in lifting a 10 litre tin of paint. He can walk for about an hour but then he suffers aches. He is sore if he is on his feet for too long.
104 Mr Westh recorded complaint of slight pain in the left wrist with overuse and heavy lifting. Mr Rollo was, according to the history, able to paint with his left hand though he was naturally right handed. He complained of difficulty in gardening, with raking the grass, and problems twisting and pulling. He said that he can cut his lawns. “He does not complain of any neck pain”. (PCB 122)
105 Mr Westh concluded that Mr Rollo “does suffer an impairment as a consequence of his injuries and this is likely to last for the foreseeable future”. Nevertheless, for the purposes of the AMA Guides Mr Westh found zero per cent impairment for each of the left wrist, pelvis and the sacral region. Mr Westh said that it is likely that Mr Rollo will continue to experience activity-related groin and sacral pain. (PCB 124)
106 The Transport Accident Commission had Mr Rollo assessed by Mr Paul Kierce, orthopaedic and medico-legal consultant, on 24 February 2014. This was an assessment of the impairment resulting from the 2011 accident. Mr Kierce noted complaints of pain in the right shoulder and some pain and numbness at the base of the right thumb. According to Mr Kierce, Mr Rollo takes two Panadol Osteo twice a day “regularly”.
107 Mr Kierce provided a further review of Mr Rollo by letter dated 11 August 2015 reporting upon the assessment carried out on that date. This assessment pertained to the 2009 accident. On examination, Mr Kierce found a full range of movement of the lumbar spine with no neurological abnormality in his leg and no motor weakness or sensory loss. (DCB 18) Mr Kierce noted a full range of movement of the hip joints. (DCB 19) He also measured the left wrist, right wrist, right thumb and right shoulder.
108 Mr Kierce said that the fracture of the sacrum with displacements and without residual signs constituted a five per cent whole person impairment as a result of the 2009 accident. He said on clinical examination there was no abnormality in the lumbar spine and therefore the impairment rating for the lumbar spine was zero per cent. (DCB 19)
109 Mr Kierce said that the 2009 accident “involved a displaced fracture of the sacrum, not involving the sacroiliac joint, and a fracture of the left wrist’s triquetrum”. He said:
“With regards to the accident of 2009 it is likely that he will develop some osteoarthritis of the left wrist as a consequence of the fracture of the left triquetrum but this is not likely to be a serious degree of osteoarthritis and should not require any significant treatment.
There should not be any long-term ill-effects of the fracture of the sacrum.” (DCB 20)
110 Mr Kierce said that in his opinion the 2009 accident-related injuries did not interfere with Mr Rollo’s ability to work or with his leisure or domestic activities. He said, however, that the 2011 injury to the right shoulder was a significant interference with his capacity to work. (DCB 21)
111 As to neurological matters, the Commission referred Mr Rollo to Professor Stephen Davis, who provided a report by way of letter to the Commission dated 15 July 2015. According to the professor:
“[Mr Rollo] potentially sustained a mild head injury in the 2009 accident bearing in mind that he was mildly intoxicated with alcohol and possibly marijuana. His GCS was 14 on serial measurements at the accident scene and there was uncertainty about loss of consciousness. He had a normal CT scan at Warrnambool where his GCS was 15. He remembers being in the paddock, the attendance of the paramedics and arrival at the hospital. It is really unlikely that he sustained a significant head injury in terms of measurable cognitive deficit. He performed quite poorly on mini mental state testing today. There is no evidence that he had cognitive impairment before the accident. I think it would be very helpful for him to have a formal neuropsychological assessment given the relatively mild head injury. I think it would be reasonable to suggest a very mild level of impairment, but this really contingent on an objective neuropsychological result…The mild head injury would not affect his ability to work in any way.” (DCB 30)
112 The professor provided a supplementary report following provision to him of a number of reports, including those of Mr Klug, Mr Brownbill, Dr Dowling and Dr King, as well as the assessment of Dr Stuart. Professor Davis confirmed the three per cent impairment and the conclusions given in his earlier report. (DCB 34)
113 Dr Stuart carried out an assessment on 15 July 2015 and reported upon it to the Transport Accident Commission on 24 July 2015. Using the same Wechsler Memory Scale as Dr Dowling but in an abbreviated form, Dr Stuart found a score for Auditory Memory Index of 70, which is in the borderline range, with a percentile rank of two, meaning that Mr Rollo would perform better than two per cent of his age group. On the other hand, for visual memory, he found an index of 119, which is in the high average range. He said:
“The percentile rank is 90 which means that he would perform better than 90 per cent of his age group on these tests…The Auditory Memory Index score of 70 is well below the score which would be predicted from his verbal intelligence.” (DCB 40-41)
114 As a result, said Dr Stuart, the result shows, “that Mr Rollo’s verbal memory is severely impaired in relation to his intelligence”. Dr Stuart said that the traumatic brain injury in the 2009 accident has had:
“A marked effect on his cognition and memory which I have described above. I have also commented that this injury has interfered with Mr Rollo’s ability to work, and to his domestic and leisure activities to a severe degree.” (DCB 43)
115 Dr Stuart provided a supplementary report to the Commission dated 9 October 2015 in which he was invited to consider the reports of Mr Brownbill, Dr Dowling, Mr Klug, Professor Davis and Dr King.
116 Dr Stuart said that he now accepted that his findings in terms of Mr Rollo’s verbal memory were “not reliable”. As a result, he concluded that Mr Rollo sustained a mild traumatic brain injury “with no firm evidence to suggest that there is an organic impairment in his neuropsychological functioning.” (DCB 52)
Conclusions
Brain injury
117 I turn first to the alleged brain injury which Mr Rollo is said to have suffered. Descriptions of his condition in the wake of the accident do not disclose any wounds or bruising to his skull. Nevertheless, the violence of the impact and rollover and the unconsciousness which he suffered in the wake of the impact all support the view that he did sustain a concussive brain injury. No examiner disputes this.
118 Amongst the neuropsychologists, Dr Dowling found a moderate brain injury with mild sequelae. Dr Stuart, who assessed for the Transport Accident Commission, found no ongoing effects of brain injury. Dr Dowling found that the injury had both cognitive and emotional effects upon Mr Rollo. Nevertheless, in closing submission, Mr Bird said:
“There is no evidence or attempt anywhere in this case or in the evidence of this case to hitch any emotional sequelae to the concussive injury.” (T344, L26-28)
119 In those circumstances, I can put to one side what Mr Dowling said as to emotional consequences of Mr Rollo’s head injury and concentrate upon his finding of a moderate injury with mild sequelae creating a cognitive deficit.
120 The two neuropsychologists, Dr Dowling and Dr Stuart, gave their evidence concurrently. At the forefront of that evidence was a debate between them as to the adequacy of the test administered by Dr Dowling consisting of some 10 sub-tests occupying seven hours over two days and the abbreviated form of testing covering four sub-tests only, which Dr Stuart undertook and which occupied about two and a half hours.
121 Dr Stuart was adamant that the program which he undertook was:
(a) in accordance with normal procedures for Transport Accident Commission assessment; and
(b) entirely adequate to reach an accurate assessment of the subject’s capacities.
122 I asked him on a number of occasions how his conviction of the adequacy of the shorter form of test was validated, but I did not understand that I received a direct response.
123 This, and the fact that Dr Stuart abandoned his initial finding of a significant impairment to verbal memory on the basis that his measurement of this was unreliable, leads me to treat Dr Stuart’s conclusions with some caution.
124 Nevertheless, this does not necessarily validate Dr Dowling’s finding of moderate injury. This latter finding entailed a revision of the benchmarks which have traditionally been used. More significant, as noted above, his finding was premised upon the view that Mr Rollo had suffered post-traumatic amnesia for four hours. As other examiners have noted, Mr Rollo’s memory seems to have picked up from the moment when he awoke in the paddock in the presence of the police with lights flashing. He recollected being carried by the police to the fence line, his conversations with them, his fall at the fence line and so forth. This is not consistent with post-traumatic amnesia persisting for four hours. Ultimately, to say that a person with a GCS score of less than the full 15 was necessary and, for that reason alone, to be regarded as post-traumatic amnesia cannot be correct. He said: “But the normal pattern is that once you are scoring 15 on the Glasgow Coma Scale, that’s when they start thinking about assessing PTA. They don’t start assessing it usually while people have a GCS of less than 15, and there are obvious reasons for that.” (T275, L22-26)
125 All other examiners, whether for the plaintiff or for the Commission, accepted that the period of post-traumatic amnesia was 15-20 minutes and therefore the concussive brain injury was in accordance with normal benchmarking, to be regarded as mild.
126 I cannot accept Dr Dowling’s view that, despite the detailed evidence that Mr Rollo was able to give as to events immediately following his awakening in the paddock, he continued to be in post-traumatic amnesia for some hours thereafter.
127 There was also reason to doubt the complaints of poor memory which Mr Rollo now makes. Memory impairment was not obvious to various neurologists or neurosurgeons who examined him. The finding on CT scan of a normal brain also pointed away from there being any injury to the brain which would have a gross effect on memory.
128 In 2011, before the second accident, Mr Henderson noted a denial by Mr Rollo of any memory problems though Mr Henderson doubted the denial.
129 In contrast to the affidavit which was filed in support of this application, Mrs Rollo told Dr Dowling that she had not noticed any obvious changes in her husband’s memory or concentration in answer to a question put to her by Dr Dowling. (PCB 73, T158) In cross-examination, Mr Elliott QC for the Commission said to Mrs Rollo, “See, I am putting to you, that’s a completely different picture than what you’ve put in that affidavit in your evidence to the court today. This is last year. Do you agree with that?” (T158, L23-26) There was no audible response. Mr Elliott pressed and Mrs Rollo replied, “No, I agree”.
130 When asked about this in re-examination, Mrs Rollo said, “I suppose because I was more focused on his physical injuries and worried about him, you know, working, earning a living.” (T185, L31 - T186, L1-2)
131 Given the fairly late stage, viz 2014, at which Mrs Rollo gave this answer and given that it was an answer to a question put by a neuropsychologist, this explanation is less than convincing.
132 As I read Mr Westh’s report, uninstructed by Dr Dowling’s assessment he would have expected a full recovery from the concussive brain injury which he found Mr Rollo sustained. He was not prepared to disagree with Dr Dowling or, to put it another way, he was willing to agree with him. That also seemed to be the attitude, for instance, of Professor Davis, who gave a small impairment rating for a mild injury only.
133 Dr Epstein, as noted above, made no finding of a memory impairment in the course of his assessment. Dr Dowling said that other examiners, such as neurologists, neurosurgeons and psychiatrists, made their assessments purely upon observation. They did not undertake the testing regime administered by neuropsychologists. So much may be accepted, but a compromise to cognition and memory must be mild indeed if expert examiners such as these do not note it in the course of interview and assessment.
134 Given the operation of the paragraph in the definition of “serious injury” in s93(17) relied upon here and interpreted in Humphries v Poljak, how could the present mild memory and cognitive impairment, if it truly exists, constitute a serious injury? I asked Mr Bird this question and he responded:
“People often develop ways of getting around [mild memory problems], they can minimise them, they are aware of their difficulties, moderate, it’s harder for them to manage them, they need to use a variety of strategies; well, why should he? Why should he at the age of 50 or whatever he is, in the prime of his working life have to devise ways of getting around it, why should he? He has problems with – and as I said, there has been no great attack – I won’t take you to the transcript but you might remember him saying ‘well, I sort of did this when I sort of got on the ladder and I sort of found it and sort of hit pain’ - he wasn’t very articulate at times.” (T354, L12-24)
135 I took this submission to be that the effects of an injury to memory are so pervasive, that even if the injury itself could be characterised as only mild, its effects could be regarded as “very considerable” for the purposes of the test.
136 For what it is worth, and the answer is “probably not very much”, I did not note any apparent compromise to Mr Rollo’s cognition or memory during the lengthy period that he was in the witness box and cross-examined.
137 On all the evidence, and the histories which both Mr and Mrs Rollo have given to examiners, and the findings of Dr Epstein (the psychiatrist) and various neurologists and neurosurgeons, Mr Rollo suffered no, or a very marginal, compromise to his neck and cognition. Despite statements about difficulties in giving quotations and problems in remembering tasks, nothing that I heard of rose above the “mild” level. I am not satisfied that there was a compromise to Mr Rollo’s memory at all but, if there was, it certainly does not meet the requirements to be a “serious injury” for the purposes of paragraph (a) of s93(17) of the Transport Accident Act.
Pelvis
138 All examiners accept that there was a very significant injury to Mr Rollo’s pelvic structure. It was not, as Mr Kierce described it in his assessment, merely a fracture of the sacrum. There were also fractures to two pubic rami.
139 Again, there seems to be no serious doubt that Mr Rollo continues to suffer pain in his pelvic region, predominantly in the hip. Complaints of pain in this area are a constant since the 2009 accident.
140 Mr Elliott observed that since his initial operative treatment in the Warrnambool Base Hospital following his second post-accident visit there, Mr Rollo has received minimal treatment for these injuries from his general practitioner but, as Mr Rollo observed, Dr Oliver said that there is little that he (Dr Oliver) could offer Mr Rollo apart from analgesia. It was in these circumstances that Mr Rollo sought relief, first from physiotherapy, and, secondly, from osteopathy.
141 Mr Elliott drew attention to the statements by Mr Pettigrew, Mr Rollo’s brother-in-law, in his report that Mr Pettigrew understood Mr Rollo to have made a good recovery from the 2009 accident. So much may be accepted, but Mr Pettigrew also referred to Mr Rollo being fit for his farm work. Mr Rollo said that neither before nor after 2009 has he owned or operated a farm and therefore the issue of “farm work” has never been relevant for him.
142 With this level of lack of detailed insight into Mr Rollo’s life by Mr Pettigrew, it is difficult to attach too much significance to Mr Pettigrew’s belief of a good recovery from the 2009 accident.
143 The employment effects of the 2009 accident are difficult to quantify. Mr Rollo’s tax returns for the period 2006 to 2015 are summarised at PCB 159-160. He was at all times during this period self-employed. The tax returns disclose a very modest income showing, for instance, a taxable income in 2006 of $19,279, in 2007 of $25,122, and in 2008, that is, the income year immediately prior to the subject accident, $41,877. Income years thereafter include a substantial loss of earning benefits from the Transport Accident Commission first relative to the 2009 accident and, secondly, relative to the 2011 accident.
144 Mr Rollo’s evidence is that he has got back to nearly full-time employment but he now concentrates on smaller jobs for repeat customers and works 25-30 hours per work, implicitly suggesting that he worked 40 hours or more before the 2009 accident.
145 Without going into the details of the 2011 accident, on the face of it, it would appear to have been potentially far more damaging for the employment capacities of a professional painter. Mr Rollo is right handed and the principal damage was to his right shoulder. There was a tear to the rotator cuff. His ability to work overhead with his dominant right hand was now significantly compromised and limited. Nevertheless, examiners before the 2011 accident took a history that the residual effects of the pelvic injury, for instance, prevented him from carrying heavy paint tins of 15 kilograms.
146 In all the circumstances, one may regard Mr Rollo as a stoic, having returned to near full-time work as a painter despite the effects of the two accidents. In a serious injury application generally, a plaintiff is not to be prejudiced by his stoicism - Dwyer v Calco Timbers Pty LtdNo 2 [2008] VSCA 260 at [3] per Nettle JA as he then was; Haden Engineering v McKinnon [2010] VSCA 69 at [47] per Buchanan JA.
147 Mr Elliott noted that for an injury to be regarded as “serious”, based on loss of earnings, a 40 per cent loss of earnings is required under the Accident Compensation Act. This provision does not apply to a transport accident case. It cannot be concluded that this requirement was regarded, as some of the provisions in the Accident Compensation Act are, as mere codifications of serious injury principles already existing, as distinct from “tightening up” of criteria.
148 Mr Rollo is a relatively young man and the persistence of the pain from the pelvic injury may be regarded as more serious simply because there are many years of his life yet to come in which he is likely to be afflicted. According to his evidence, Mr Rollo requires ongoing analgesia and suffers chronically disturbed sleep.
149 There is also an undoubted depressive overlay upon him. Mr Elliott submitted that simply to pick up the matters found by Professor Epstein in his psychiatric assessment and apply them as part of the analysis under s93(17)(a) would be legally erroneous. Nevertheless, the Court of Appeal in Richards & Anor v Wylie (2000) 1 VR 79 in the passage noted above, accepted that these sorts of depressive overlays are properly to be considered as aggravating factors to organic injuries where the predominant cause of impairment is the organic injury, which is undoubtedly the case here.
150 At the end of his evidence, I asked Mr Rollo how he was feeling. He said, “Probably down,…can’t fulfil [life] as much as I would have liked to…”. (T145, L24-27)
151 Again, there has been significant prejudice to his recreational life. I have described the evidence about passtimes such as dirt bike riding and mountain bike riding. The latter is completely gone, the former was constrained. Mr Rollo conceded that he did continue dirk bike riding but only with the family, as distinct from larger expeditions with his friends. Given the circumstances of his injury in Western Australia in 2011, this concession was inevitable. Nevertheless, I accept that he was much constrained in what he could do on the dirt bike even before the 2012 accident.
152 What Mr Rollo has retained, and this is significant in assessing the seriousness of the subject injury. See Dwyer at [27] per Ashley JA.
153 In my view, the factors favouring a finding of serious injury here outweigh those pointing against by the narrowest of margins.
154 This application should succeed.
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