Runciman v Transport Accident Commission
[2013] VCC 1889
•4 December 2013
| 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-12-01876
| TOMAS RUNCIMAN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 November and 2 December 2013 | |
DATE OF JUDGMENT: | 4 December 2013 | |
CASE MAY BE CITED AS: | Runciman v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1889 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport Accident – serious injury – injury to the left wrist
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited:Phelan v Transport Accident Commission [2013] VSCA 306; Elias v Transport Accident Commission [2013] VSCA 123; Transport Accident Commission v Zepic [2013] VSCA 232; Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Richards v Wylie (2000) 1 VR 79
Judgment: Leave granted to the plaintiff to bring proceedings for the recovery of damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Rattray QC with Mr P Seeman | Slater & Gordon |
| For the Defendant | Mr M Titshall QC with Mr P Gates | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 Leave is sought pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings for the recovery of damages. Both paragraphs (a) and (c) are claimed but the thrust of the application was paragraph (a).[1]
[1]Transcript (“T”) T1 and T81
2 The injury relied on is a comminuted fracture of the left wrist involving the articular surfaces, and nerve damage. The impairment is to the left upper limb. It is the plaintiff’s non-dominant arm.
3 As has been said often, these applications involve elements of fact, degree and value judgment.[2] The only issue for determination is whether the consequences of the impairment can be fairly described as “at least very considerable” when judged by comparison with other cases in the range of possible impairments.[3] The exercise involves “… the imprecise and impressionistic criteria in the so-called ‘narrative test’”.[4]
[2]Phelan v Transport Accident Commission [2013] VSCA 306 at paragraph 58; Elias v Transport Accident Commission [2013] VSCA 123 at paragraphs 61 and 99
[3]T3
[4]Transport Accident Commission v Zepic [2013] VSCA 232 at paragraph 145
4 The plaintiff is aged twenty-seven years. He was injured in a transport accident on 11 May 2010 when his motorcycle collided with a motorcar. The ambulance notes indicate that morphine needed to be administered and he was taken to the Royal Melbourne Hospital.[5]
[5]Plaintiff’s Court Book (“PCB”) 23.13
5 The Royal Melbourne Hospital material shows the extensive nature of the injury. He was an inpatient there for six days. It was described as a markedly comminuted fracture with multiple fragments requiring internal fixation. Extensive involvement of the articular surface was clear with already a depression visible in that surface.[6]
[6]PCB 25
6 Even by 31 May 2010, the plaintiff was told he would develop osteoarthritis. Also, it was said to him that the wrist would never be 100 per cent as articular surfaces were involved.[7] I find, on the probabilities, this young man now has osteoarthritis in his wrist.[8]
[7]PCB 26
[8]PCB 40, 124, 127, 128.8
7 Complex Regional Pain Syndrome was also diagnosed at the hospital on 12 July 2010 and management of that condition was discussed with the plaintiff.[9]
[9]PCB 26
8 The plaintiff at the time of the accident was a young man of only twenty-four years who had been heavily involved in music, both as a youngster and well into his 20s.[10] He had an ambition to pursue that as a career[11] but not surprisingly, in spite of a very intense involvement in singing and playing guitar in several bands, he needed to support himself with other forms of part-time employment.
[10]PCB 10, 20.3; T9-10, T15-17, T19; PCB 22, 23.4-23.5, 23.7-23.9
[11]T24-25
9 The plaintiff had also enrolled in tertiary studies after leaving school and had deferred initially from pursuing such courses. Subsequent to the accident, he took up studies towards a Bachelor of Environment, majoring in architecture. He has just completed the final part of that three-year course and is awaiting his final results. If he is successful he will be eligible to take out the bachelor degree and he has already made enquiries to go on and pursue studies at a masters level in that field. Nevertheless, his interest in music remains as probably his passion. To be a professional musician is still his dream.[12]
[12]T24-25
10 The plaintiff was treated by a general practitioner, Dr Muniratna, from 15 June 2010 effectively up to the present time. His treatment has been extensive. It involved a good deal of physiotherapy which encompassed some two years or so. He was referred to Mr S Doig, orthopaedic surgeon, who he saw on 21 October 2010. Mr Doig then referred him to a pain management specialist, Dr S de Graaff, in 2013. He was also treated by a consultant physician and rheumatologist, Dr S Lam. Treatment has included removal of metal implants from his wrist and the performance of a neurolysis of the cutaneous branch of the median nerve. He has had injection treatment. He has also had acupuncture treatment which is still ongoing, as is psychological counselling. The pain management specialist at the Epworth really had nothing to offer the plaintiff for his ongoing pain and a discussion with Dr de Graaff’s colleagues was mentioned to see if there were any other treatments.[13] I accept that the plaintiff has been compliant with respect to the various treatment options. Medicine really has nothing more to offer him. Mr M Dooley, orthopaedic surgeon, who saw the plaintiff for the Transport Accident Commission three weeks ago agreed.[14]
[13]PCB 44.5
[14]DCB 13
11 In addition to formal treatment, he has been given exercises and other routines by his physiotherapist which he carries out at home and this involves weights and stretching, as well as heat and daily massage. I accept that he spends time on this every day and this comprises about an hour.[15]
[15]T37
12 The need for a young man to spend that amount of time in going through the daily routine is, in itself, a very considerable consequence of the impairment of function of his left upper limb. It is a significant intrusion into his daily life. I accept his evidence that it is in compliance with medical advice he has been given that he goes through such a routine.[16] I accept that this man is suffering from chronic pain and stiffness that now, some three-and-a-half years after the transport accident, he will have to daily manage into the foreseeable future.
[16]T 37
13 The plaintiff is currently on Cymbalta which he takes daily at night time, as well as Panadol and Nurofen taken a couple of times a week. He has had side effects from medication. He recently saw Mr Doig again last month in order to seek his opinion about whether anything else could be done about the pain. He said: “I wanted to ask his opinion on what else I could do to work on my pain.”[17] Mr Doig discussed further possible surgery but only gave it a 50/50 chance of success, and the plaintiff has quite reasonably decided not to proceed with it. Describing the injections this year and medications, he said: “Again I don’t feel that it’s really helping with my pain management.”[18]
[17]T38
[18]T80
14 I found the plaintiff was a very forthright witness who candidly admitted to virtually every suggestion put to him in cross-examination. In fact he was described quite properly as being “almost impeccable” as a witness.[19] His candour included his active ongoing involvement in singing and playing music in bands.[20] He was frank with respect to his home life and day-to-day arrangements.[21] He was candid about his involvement riding pushbikes.[22] I found he was a reliable and honest witness with respect to his pain and other symptoms and the consequential impact on his life.
[19]T93
[20]T33, 37, 48-66
[21]T40
[22]T61-63
15 Affidavit evidence from both the plaintiff’s parents, his brother and a friend contained parts that were inadmissible and of limited weight.[23] Nevertheless they generally corroborate a lot of the consequences the plaintiff spoke of in terms of his daily life and interests. Sensibly, in view of the plaintiff’s credit, the deponents were not required for cross-examination.[24]
[23]T94-96
[24]T7, T53
16 The key to this application is really an evaluation of the plaintiff’s pain. I accept that he suffers constant pain and has since 11 May 2010.[25] The medication has been of different types and dosages and commenced with morphine and is ongoing.[26] I find that he has a stoical attitude about his pain. This is not to be held against him.[27] I accept the plaintiff endures this pain and pushes through it. He does not let it prevent him trying to enjoy his studies, social life and his recreations, including his music. His studies, for example, have required “special consideration” from the university.[28] He does his share of the cooking, washing and cleaning but “… not without pain”.[29]
[25]PCB 8, 18, 20.1-20.2
[26]PCB 19, 20.1
[27]Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260 at paragraph 3; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph 47
[28]PCB 161; T79
[29]T40
17 As has often been said: “the endurance of daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable consequence’”.[30]
[30]Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267 at paragraph 27; Sutton v Laminex Group Pty Ltd [2011] VSCA 52 at paragraph 91
18 The overall approach to evaluating pain has been spelt out.[31] The starting point is what the plaintiff says about pain, and I accept what he says about it being constant pain which is not showing any signs of significantly improving.[32] What the plaintiff does about pain is also relevant and in this case, he has undergone surgery, a litany of other conservative treatments, re-referral recently to his orthopaedic surgeon and is left with the ongoing spectre of a routine of exercises at home every day plus medication.
[31]Aburrow v Network Personnel Pty Ltd [2013] VSCA 46 at paragraph 11
[32]PCB 8
19 In this case, it is not necessary to quote the medical evidence in any detail as it has been sensibly conceded that there is really no medical issue or controversy in this case.[33]
[33]T3-4
20 In the last report of his general practitioner, he described that the plaintiff has been on strong analgesics since the first consultation and describes the referrals that the plaintiff has required to an orthopaedic surgeon, rheumatologist, acupuncturist, Chinese naturopath, as well as to a psychologist to assist with his coping better and being more positive. The general practitioner thought the condition was stable and that the plaintiff had definitely not reached his pre-injury status. I read the general practitioner’s materials as indicating a very active local doctor trying every avenue virtually to assist his patient with his pain.
21 Mr S Doig, the treating surgeon, put limits on this man in terms of activities involving heavy lifting, pushing, pulling or carrying and when he last reported, he described it as a significant injury. Mr Doig organised a referral to a pain management specialist as he did not think anything further could be done in February of this year from an orthopaedic point of view.[34] He described damage to the median nerve branch, as well as damage to the radial nerve. There is also parasthesia which was likely to continue into the foreseeable future. He felt also there were presumed neuromas of those nerves.[35] Apart from finding acupuncture had been beneficial, this surgeon’s opinion does not offer much cause, if any, for optimism going forward.
[34]PCB 44.2
[35]PCB 44.3
22 The pain management specialist, Dr S de Graaff, reported in May this year on the very wide-ranging medications that the plaintiff had tried “with minimal impact in terms of the pain”.[36] Again, it is difficult to see any cause for optimism in relation to this specialist’s view when he said, initially:
“Unfortunately, as a consequence of his fracture, he had ongoing left wrist and hand pain as well as associated sensory change over his left thumb and index finger, as well as the hypothenar area. His condition continued to deteriorate with further pain and sensory loss.”[37]
[36]PCB 44.4
[37]PCB 44.4
23 After the removal of the metal the pain improved slightly but there was no significant change in sensation. He concluded finally:
“His movements remained quite restricted. He has ongoing throbbing pain situated deep in the wrist with lateral wrist dysaesthesia. There is pain associated with loading the wrist and pressure over the radial head.”[38]
[38]PCB 44.4
24 The plaintiff saw Dr Lam on about five occasions between August 2011 and April 2012. He thought his prognosis was guarded. He diagnosed Complex Regional Pain Syndrome and while symptoms could settle, it was likely he would always have pain requiring ongoing treatment and medication.[39]
[39]PCB 58
25 Dr Lam placed real restrictions on work with regard to lifting, carrying, pushing or pulling more than 5 kilograms with the left hand. Repetitive movements could also affect symptoms. These limits would be likely to affect the type of work he was able to undertake but also domestic or leisure activities utilising his left hand.[40] Side effects of medication were noted.
[40]PCB 58
26 Looking at the treating doctors charged with the medical management of the plaintiff, I find that he has a permanent injury that is causing ongoing pain and loss of mobility. These are at a level for this man that is a very considerable consequence in terms of daily enjoyment of life. For a plaintiff as young as this man, the exhaustion in effect of all treatment and the prospect of a level of pain unlikely to change for the better are relevant when one looks at his likely life expectancy.[41]
[41]Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26 at paragraphs 74-75
27 The medico-legal evidence for the plaintiff commences with Mr M Fogarty, orthopaedic surgeon, in January 2012. He found, on examination, dysaesthesia from the radial nerve and median nerves, thenar wasting and weakness on thumb movement.[42] While the plaintiff could manage normal activities of daily living now, it did impact on occupation and daily life.[43] There was really no further treatment.[44] He noted the increased risk of developing traumatic arthritis. He did not have the benefit of the later MRI confirming its presence radiologically.[45]
[42]PCB 116
[43]PCB 117
[44]PCB 118
[45]PCB 40
28 Mr King, orthopaedic surgeon, saw the plaintiff in October 2012. He described the injury and said:
“… secondary osteoarthritic change seems to have developed in the left wrist joint.”[46]
[46]PCB 124
29 The plaintiff was left with a stiff and painful left wrist compounded by some residual sensory impairment due to nerve damage. The arthritis may increase.
30 Mr King saw the plaintiff again in September 2013 and now had further radiology. The MRI was consistent with his diagnosis of osteoarthritis.[47] He looked at the video evidence of the plaintiff in the band.[48] It did not show “…any undue stress or strain in the region of the left hand or wrist”.[49] I agree.
[47]PCB 127
[48]Exhibit 2
[49]PCB 128.4
31 Mr King’s final comments about the plaintiff’s pain were possibly best summed up:
“The combination of a stiff, painful, osteoarthritic left wrist, now stabilised, with mild but definite residual median nerve symptoms in the left thumb and hand, represents a chronic impairment of moderate severity in the left upper limb as I previously noted”.[50]
[50]PCB 128.9
32 Mr King felt the plaintiff was able to work as a landscape architect. While this is consistent with other doctors if he remains in pursuit of that vocational field, it is nevertheless a very considerable impairment to have a wrist and thumb that aggravates the level of pain when used.[51] He noted persistent impairment of sensation in parts of the left hand.
[51]PCB 128.7
33 Mr M Dooley, orthopaedic surgeon, saw the plaintiff in April 2012 and August 2013 for the defendant. He found the plaintiff:
“ … a sensible, well adjusted and genuine person. I do not believe there are any psychosocial issues impacting on his presentation.”[52]
[52]DCB 5
34 He conceded it was possible there was a Complex Regional Pain Syndrome after the injury but these do resolve in time. It was probable that full range of motion of the wrist would not be regained and he would continue to suffer ache, especially with a lot of use of the wrist.[53] He was at risk of osteoarthritis developing in time.[54]
[53]DCB 4
[54]DCB 5
35 In a letter, Mr Dooley commented on that risk again by way of a possible slow progression “…over a twenty to thirty-year period”.[55] He viewed the videos[56] and thought it unlikely the plaintiff was suffering significant pain during these band performances. I do not accept that comment is accurate. Very limited use is shown by way of any strain or effort involving the wrist and hand. A performer in the course of a very energetic public performance as a rock ‘n’ roll lead singer is hardly going to show wrist pain to his audience.
[55]DCB 8
[56]Exhibit 2
36 When Mr Dooley reviewed the plaintiff this year he made some comments on the plaintiff’s psychological history and his being treated for depression. He thought now there were physical and psychological factors but the thrust of the report is still focussed on the physical injury with no realistic treatment option.[57] The relevance he placed on activities such as long periods of guitar playing, regular heavy work or repetitive manoeuvring of the left wrist area in relation to pain are comments directed to the organic injuries.
[57]DCB 13
37 These limitations apply to the passion for music, to certain jobs as well as to activities of daily life for this man. I find even Mr Dooley’s opinion supports very considerable consequences that will be permanent in such a young life.
38 There have been some psychological consequences that have resulted from the organic injuries to his wrist. These are understandable in a well motivated, active young man. I accept this is a perfectly reasonable mental response to his impaired left wrist and hand in view of the ongoing pain and loss of movement, the extensive treatment and, more particularly, the “dead end” as it were, that treatment has now run into.[58] The response is an expected consequence. I find this mental response is not the producer of any impairment of body function. His impairment is the product of the very nasty comminuted fracture, nerve damage and osteoarthritis.
[58]Richards v Wylie (2000) 1 VR 79 at paragraph 17
39 Mr S Nudds, clinical psychologist, commenced counselling in February 2012 and diagnosed psychiatric symptoms. However, it is clear from his concluding remarks in September 2013 that he sees the organic injury as the cause of these problems:
“I am requesting a small number of physiotherapy sessions and provision of a TENS machine would benefit Mr Runciman with development of his ability to self-anage (sic) his pain and also maximise progress in treatment for his psychiatric symptoms.”[59]
[59]PCB 62.6
40 The need for counselling from a psychologist is just another consequence visited on this stoical young man. It will probably continue in the view of Dr Kinsella, the clinical psychologist engaged by the Transport Accident Commission.[60] He thought the psychological prognosis was good for this motivated man who did not exaggerate.[61]
[60]PCB 197
[61]PCB 194 and 196
41 I find the plaintiff has discharged the onus of showing consequences to the requisite degree under paragraph (a). There is no need to determine the paragraph (c) claim or comment on it at length. I will just briefly mention the two psychiatrists.
42 Dr N Serry saw the plaintiff twice for medico-legal purposes at the request of his solicitors. In 2012, the prognosis was mixed. In November 2013, he commented:
“He has unfortunately remained physically symptomatic in relation to his left wrist with ongoing pain and restrictions.”[62]
[62]PCB 94.6
43 The prognosis was still mixed and:
“He remains determined and focussed on recovery but he remains quite symptomatic both physically and psychologically.”[63]
[63]PCB 94.8
44 Dr N Ingram, consultant psychiatrist, assessed the plaintiff in April 2012 for the defendant. He said the main problem was “chronic pain”. He did not think looking ahead “… there will be any significant psychiatric impairment”.[64]
[64]DCB 21
45 Without the benefit of hearing from the psychiatrists I read them as saying it is the physical or organic pain that causes the psychological consequences that are in all the circumstances to be expected. I find the impairment of function results from the organic injury.
46 I find that the plaintiff has compromised his music passion by decreasing guitar playing in order to stay involved in the band.[65] He has successfully continued studies by getting special consideration.[66] His capacity to perform part-time work has already been compromised by the pain.[67] He avoids heavy lifting of band equipment.[68] The fact that he gets on with these activities does not detract from the force of the argument that the impairment of function is serious. Rather it demonstrates the motivation and determined attitude of the plaintiff to not let it stop him doing what he enjoys. That enjoyment is nevertheless very considerably impaired and will remain so.
[65]PCB 10, 18, 20.3
[66]T36
[67]T73-75
[68]T78
47 In this day and age a young man in his 20’s is not slavishly chained to being a landscape architect just because he completed the course. He is at the threshold of where the employment market will take him in life. With an established osteoarthritic wrist he is handicapped in what work ultimately he can do. Already this has been manifest.[69] His earning capacity in a general sense is impaired. He will need to be very careful about what work and tasks he undertakes. That is a handicap resulting from his organic osteopaedic and nerve injuries and the unfortunate establishment of the osteoarthritic process. It is a very considerable consequence for this young plaintiff.
[69]PCB 9, T 73-75, T 78
48 I grant leave to the plaintiff to bring proceedings for the recovery of damages.
49 I will hear the parties as to costs.
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