Rudov v Transport Accident Commission

[2013] VCC 1819

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-12-06176

MONTY RUDOV	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

---

JUDGE:

HIS HONOUR JUDGE JORDAN

WHERE HELD:

Melbourne

DATE OF HEARING:

30 October 2013

DATE OF JUDGMENT:

4 November 2013

CASE MAY BE CITED AS:

Rudov v Transport Accident Commission

MEDIUM NEUTRAL CITATION:

[First Revision 26 November 2013]

[2013] VCC 1819

REASONS FOR JUDGMENT
---

Subject:TRANSPORT ACCIDENT

Catchwords:             Serious injury – injury to the left shoulder

Legislation Cited:     Transport Accident Act 1986, s93(17)(a)

Cases Cited:Transport Accident Commission v Zepic [2013] VSCA 232; Richards v Wylie [2000] VSCA 50; Elias v Transport Accident Commission [2013] VSCA 123; Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Transport Accident Commission v Kamel [2011] VSCA 110; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46

Judgment:                 Leave granted to the plaintiff to bring proceedings for the recovery of damages.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr E Makowski	Arnold Thomas & Becker
For the Defendant	Mr D Curtain QC with Ms L Glass	Wisewould Mahony

HIS HONOUR:

1 This is an application pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”). Leave is sought with respect to a left shoulder injury causing impairment of function of the left non-dominant arm. The injury is probably best described as a fracture of the neck of the humerus, together with adhesive capsulitis. The application is based on the s93(17)(a) definition. There is some psychiatric impact following the transport accident but no application is made under paragraph (c).

2       The defence to the application is that the consequences to the plaintiff of the impairment of the left arm are not “serious”.  Authority states that the consequences must be at least “very considerable” in the range of possible impairments.

3       Recent authority in Transport Accident Commission cases repeats the established principles involved in undertaking an exercise that involves:  “… the imprecise and impressionistic criteria in the so-called ‘narrative test’.”[1]

[1]Transport Accident Commission v Zepic [2013] VSCA 232 at paragraph 145

4       It has been said that elements of fact, degree and value judgment are involved when making a judgment about the consequences flowing from the impairment.[2]  A comparison is required with other cases in the range of possible impairments or losses of body function.[3]

[2]Richards v Wylie [2000] VSCA 50 at paragraph 15; Elias v Transport Accident Commission [2013] VSCA 123 at paragraph 99

[3]Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Transport Accident Commission v Kamel [2011] VSCA 110 at paragraph 64; Elias v Transport Accident Commission (supra) at paragraph 55

5       The plaintiff is a seventy-eight-year-old self-employed man.  He still works as the proprietor of a ladies’ shoe shop in the city.  He suffered what was obviously a heavy fall as he was knocked to the floor while travelling on a tram.  The tram suddenly stopped and he landed on his shoulder.  The fractures of his left shoulder and a left toe were diagnosed at The Alfred Hospital following x‑rays.  The shoulder fracture has united with time but he is left with adhesive capsulitis.  There is very little if any medical debate in relation to diagnosis and the nature of the injury in this case. 

6       The plaintiff was the only witness called for cross-examination and he could hardly have been a more straightforward and frank witness.  In cross-examination, his forthright acceptance of suggestions he could work without real difficulty in what is now largely a supervisory role and what he said about the foot injury were but two examples of this.[4]  I find he is a very stoical man who, in spite of suffering these orthopaedic injuries in his twilight years at age seventy-five,[5] has simply continued to work full time in his shop and put up with ongoing pain in his shoulder. 

[4]Transcript (“T”) 7

[5]Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26 at paragraph 77

7       There was no attempt to exaggerate the injury or its impact on his life.  His stoicism needs to be put in context. It should not mean he is treated any less favourably. [6]  Dr Walton, consultant psychiatrist, who saw the plaintiff for the defendant, put it accurately when he said, in October 2012:

“Many persons would have developed significant psychiatric problems in the aftermath of an accident such as Mr. Rudov endured, especially given that he was fearful for his life at the time of the accident. However I can only conclude that he is a psychologically resilient man as he has not gone on to develop any enduring psychiatric syndrome.”[7]

[6]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph 47;Transport Accident Commission v Kamel (supra) at paragraphs 67-68

[7]Defendant’s Court Book (“DCB”) 27

8       I accept the plaintiff’s evidence about the pain and disability he has endured over the last three years, and his evidence generally.  He freely admits to no treatment for three years as painkillers were of no help.[8]  The importance of credit in such a case is obvious.  It is particularly relevant in assessing pain and suffering consequences.[9]

[8]T10-12

[9]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph 35

9       The ability of a man to keep working has been commented on and that capacity is not finally determinative of whether the consequences are very considerable.  The typical matters involving consideration in these circumstances have been listed.[10]  These include what disabling effect pain has on matters such as sleep, mobility, performance of duties and activities. 

[10]Aburrow v Network Personnel Pty Ltd [2013] VSCA 46 paragraph 20

10      Regarding his capacity to work, it is worth noting that while I accept this very highly motivated man still goes to work each day at seventy-eight years of age, he is limited in ways he was not limited in before.  He now sleeps during the day on a bed at work at least three times per week.[11]  I accept that while he keeps working, he has never been able to be as active and energetic in this context as previously.[12]  To have to rest by way of sleeping in bed on the job at his shop is a very considerable consequence against a background of such a hardworking man still in full-time retail employment which commenced sixty years ago.[13]

[11]T7

[12]Plaintiff’s Court Book (“PCB”) 9

[13]PCB 7

11      While this does not translate into monetary loss that would reflect a pecuniary disadvantage, it is still a serious consequence for this self-employed retail proprietor. 

12      I accept he suffers constant pain every day.  He even notices its effects while watching television.[14] The constant pain he suffers is essentially unchallenged in this case.  It started out as very severe and[15] painkillers had not helped much, if at all.[16]  His stoicism and preparedness to just put up with it and go off to work each day and generally make the best of his situation does not reflect in this case on a lack of symptoms or mild symptoms. I accept it indicates that really nothing would stop him working, let alone constant shoulder pain and restriction.

[14]PCB 10

[15]PCB 8-9

[16]PCB 10 and T11

13      His sleep is interfered with.[17]  He has consistently related this complaint to the doctors that he has seen.[18]

[17]PCB 9-10

[18]PCB 14, 18, 25-27, 30, 3b; DCB 15, 25 and 34

14      The fact that it does not appear from the clinical notes that he has complained about the difficulty the pain causes when trying to sleep needs to be measured against a background of an elderly man who goes to a doctor very sparingly indeed.[19]  This is consistent with what I accept in that he is a person who just puts up with life and does not go to doctors very much at all, given his years.  If he cannot sleep he accepts that as a permanent problem and gets on with his work and life generally. 

[19]DCB 38-42

15      The note about nocturia that the defendant relies on as indicating that he will see his doctor about sleep problems if they are troubling enough, needs to be put in context.  The note appears on 24 January 2012. The very brief computer-driven clinical records make it difficult to really assess what was said to the doctor on that occasion.[20]  It reads in a point by point form as though various matters are being discussed and it ends with this note:

“Slowly progressive symptoms prostatism, nocturia x 3.”

[20]DCB 40

16      For a man of the plaintiff’s age to be mentioning such things or his local doctor enquiring about them is no surprise. The first entry in the notes in August 2007 refers to “prostate specific antigen.”[21]  I do not accept the argument that because there is no specific note about sleep interruption caused by the shoulder injury that means it was not troubling the plaintiff. 

[21]DCB 42

17      Looking at these notes overall, which commence on 23 August 2007 and finish on 13 June 2013, I accept that they indicate very few visits to the family doctor for any health issues at all over the last six years.  I find this is perfectly consistent with the plaintiff just stoically putting up with his lot in terms of the subject shoulder injury.  His problems with sleep have been related to all the doctors to whom histories and complaints since the transport accident are relevant. The plaintiff just puts up with disruption of sleep as a consequence of the fall in the tram.  I accept the lack of energy and his feeling exhausted is a result of his shoulder pain.[22] 

[22]PCB 10, T7, T12 and T14

18      This is a great loss which he described changed his whole life.[23]  The impact of not having any energy to undertake things with the enthusiasm and effort that he could prior to the accident, for a working man in his very senior years, is a very considerable consequence in the circumstances of this case.  The importance or the relevance of a lack of sleep in evaluating these applications is well established.[24]

[23]T10

[24]Haden Engineering Pty Ltd v McKinnon (supra) at paragraphs 27 and 45

19      As there is really no controversy about any of the medical opinions in the case, I will only deal with them extremely briefly.  The Alfred Hospital report[25] really just records the fractures in his left foot and left shoulder.  His general practitioner’s notes are included in the Defendant’s Court Book.[26]  I am invited by the defendant to draw an adverse inference against the plaintiff’s case on account of that general practitioner not providing a report and not giving oral evidence.  I do not accept this argument and I am not prepared to draw any inference in the circumstances.  The plaintiff solicitors are required in this serious injury jurisdiction to provide written reports that they may wish to rely on behalf of a plaintiff. The jurisdiction involves affidavit evidence with a right to cross examine that is rarely exercised where one considers the large number of doctors usually involved.

[25]PCB 11-12

[26]DCB 38-42

20      Here, the plaintiff’s solicitors have gone to extraordinary lengths to obtain a report from the general practitioner involved.[27]  Their persistent series of letters and file notes in relation to following up the general practitioner indicates to me that they were effectively being misled about the preparation of a report,[28] as well as being offered excuses that were not genuine.[29]  The argument that the plaintiff should then have subpoenaed the general practitioner needs to be put in perspective. In this jurisdiction over several decades, evidence from medical practitioners has, in the vast majority of cases, been presented in the form of written material.  In any event, the clinical notes over the six years from 2007 to 2013 have been tendered by the defendant and the file has been the subject of perusal, cross-examination and indeed tender.[30]  I am not prepared to draw an adverse inference.

[27]Exhibit 2

[28]Exhibit 2, memorandum dated 21 August 2013

[29]Exhibit 2, memorandum dated 11 September 2013 and Exhibit 2, file note dated 15 October 2013

[30]DCB 38-42

21      I accept those notes indicate an attendance for the shoulder problem following the subject accident and that there has been minimal treatment once the fracture healed.  That is consistent with the plaintiff’s attitude of just getting on with things and enduring his constant pain.  He said more than once that medication did not assist.[31]

[31]PCB 9 and T 11-12

22      Associate Professor Goldwasser, orthopaedic surgeon, examined the plaintiff on 13 February 2013.  He took a history of excruciatingly severe pain initially, which gradually improved over a couple of months but is still current to the present time.[32]  He also took a detailed history about the effects the plaintiff complained of in relation to interrupted sleep.  He found reduced mobility in the shoulder.[33]  He felt that the condition was permanent and stable.[34]  In general, he accepted that the plaintiff was left with residual discomfort in his left shoulder as well as stiffness.  I read this report as supportive of a finding that the plaintiff’s symptoms and the consequences thereof will continue for the rest of his days.

[32]PCB 14-15

[33]PCB 16

[34]PCB 19

23      Mr Bruce Love, orthopaedic surgeon, saw the plaintiff on 1 October 2013 and his diagnosis was really consistent with all the other practitioners.[35]  He took a record of the complaint about night pain affecting sleep and leaving the plaintiff with a feeling of exhaustion.  He found some wasting of the deltoid muscle on the left side and confirmed at examination the loss of mobility.[36]  He reported a second time following some radiology being sent to him.  He considered that as well as the fracture of the humerus which had gone on to union, the plaintiff was left with post-fracture stiffness or adhesive capsulitis.[37]  He thought the condition was permanent as the current situation was not likely to change. 

[35]PCB 31c

[36]PCB 31b

[37]PCB 31c

24      This last comment is important, in that the defendant relies on a suggestion by  Mr Paul Kierce, orthopaedic surgeon, that an injection into the plaintiff’s shoulder might improve the difficulties at night the plaintiff has with pain and getting a good night’s sleep.  I will deal with Mr Kierce’s reports later. The parties admitted that Mr Love had that material from Mr Kierce as part of the documents sent to him.[38]  Nevertheless, Mr Love does not comment on that treatment suggestion one way or another. 

[38]T25 and T31

25      I infer from his last sentence in his final report when he said that the current situation was not likely to change, that he did not see any merit in commenting on Mr Kierce’s suggestion.  Perhaps more importantly, there is no evidence that such a suggestion of an injection has ever been put to the plaintiff.  It was not put to him in cross-examination whether or not any suggestion of injection treatment had ever been made. It is worth noting that Mr Kierce specifically comments on several occasions that he was not providing any advice to the plaintiff when he saw him for medico-legal reasons.[39]

[39]DCB 2 and 13

26      Dr David Weissman, consultant psychiatrist, saw the plaintiff on 1 March 2013.  While this is not a paragraph (c) application, it nevertheless calls into play the principles in Richards v Wylie.[40]  In circumstances where an impairment of body function is organically based, then some account can be taken by the Court of a reasonable psychological or mental response to a physical impairment, at least in part.[41]  Dr Weissman does describe some psychological responses to the plaintiff’s organically-based chronic pain injury and disability.  He considered that he had suffered a mild mixed reactive depression and anxiety symptoms.  He called this a mild Chronic Adjustment Disorder with Depressed and Anxious Mood.[42]  The prognosis for this was only fair, and while it was mild, he considered that this was not trivial or insignificant by way of psychiatric conditions or mental injuries.[43] 

[40]Supra

[41]Richards v Wylie (supra) at paragraph 17

[42]PCB 30

[43]PCB 31

27      For a man with no psychiatric history or family history of psychiatric illness, these psychological sequelae are not to be lightly dismissed.[44]  I take them into account in looking at this matter and comparing it with the range of possible impairments. The understandable mental or psychological response supports my overall view that the consequences of the plaintiff’s impaired arm function are at least very considerable. 

[44]PCB 28

28      The defendant’s medical material consists of the reports of Mr Paul Kierce, who I have already mentioned.  He saw the plaintiff on 16 October 2012 and 13 August 2013.  He recorded a history of pain and how it affected the plaintiff in daily activities as well as during the night.[45]  The diagnosis was essentially the same as the other surgeons and the condition was stable. He thought that no further operative or other treatment was required.[46]

[45]DCB 4

[46]DCB 8

29      In his second report, Mr Kierce then raised the question of steroid injection treatment in terms of assisting his nocturnal pain.[47]  In a short letter of 16 September 2013, he repeats again the view that steroid injections can often greatly relieve nocturnal pain.[48]  However, as indicated, the plaintiff has never been advised of this and I am not prepared to draw an inference that the problems the plaintiff speaks of will probably be improved when neither Mr Love says so, having received Mr Kierce’s reports, nor does Associate Professor Goldwasser express that view when he saw the plaintiff earlier this year.  I accept the probability that if Professor Goldwasser thought there was some treatment that would assist the plaintiff’s position, he having taken what seems the fullest history of the nocturnal problems,[49] then he would have mentioned such an option.  He does not.[50]

[47]DCB 18

[48]DCB 21

[49]PCB 14-15, 18

[50]PCB 19-20

30      Not hearing from any doctors in the witness box, the task is to draw reasonable conclusions from the stated opinions and any reasonable inferences flowing therefrom.  It is not an exact science given the disadvantage of not having oral evidence.

31      Dr Lester Walton, consultant psychiatrist, saw the plaintiff on two occasions in September 2012 and then again in August 2013.  He notes the plaintiff’s difficulties with respect to sleep[51] and there being no history of any psychological problems.  Not surprisingly, he thought there was no incapacity for work or domestic pursuits due to any psychiatric accident related factors.[52] 

[51]DCB 25

[52]DCB 29

32      At the review that he conducted this year he found that there had been a modest deterioration in the plaintiff’s mental state since he had seen him in 2012.  He thought the chronic pain had:

“… crossed a diagnostic threshold in terms of mood disturbance, albeit his adjustment disorder being of quite mild degree.”[53]

[53]PCB 35

33      He felt now that the prognosis was a little guarded given the plaintiff was suffering from chronic symptoms.  He felt it was only a shift of slight proportions in the plaintiff’s overall presentation psychiatrically.  However, the diagnostic threshold had been crossed.[54]

[54]DCB 36

34      In the light of what he had said about the plaintiff’s resilience, I accept this deterioration as relevant to reaching the overall conclusion that the consequences for this otherwise robust individual are at least very considerable.[55]  To have crossed that “diagnostic threshold” so late in a long life points to the extent of the impact of this shoulder injury.

[55]DCB 27

35      Dealing with the medical evidence in total, it supports, in my view, ongoing pain, discomfort and loss of mobility.  I accept the pain is constant and it has got to the chronic stage.  I accept that it has now had some psychological impact on the plaintiff’s life, although it is an organically-based impairment that has led to that mental reaction to the physical impairment.  Given the level of activity of this elderly man pre-accident, it points to a very considerable impact occurring at this stage of his life.

36      Looking at the range of possible impairments and all the circumstances of this case, dealing as it does with an extraordinarily energetic and motivated man, I find that the plaintiff has discharged the onus of showing consequences of his impaired shoulder function that can be fairly described as “at least very considerable”. 

37      Accordingly I grant leave to the plaintiff to bring proceedings for the recovery of damages. 

38      I will hear the parties as to costs.

- - -