Said v TAC
[2013] VCC 1519
•25 October 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-10-03492
| MAGED SAID | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 October 2013 | |
DATE OF JUDGMENT: | 25 October 2013 | |
CASE MAY BE CITED AS: | Said v TAC | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1519 | |
REASONS FOR JUDGMENT
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Subject: Serious injury application.
Catchwords: Pain and suffering consequence of injury to right leg.
Legislation Cited: Transport Accident Act 1986 s. 93(17)(a).
Cases Cited: Stijepic v One Force Group Pty Ltd [2009] VSCA 108 – Richards v Wylie (2000) 1 VR 79 – Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Mighell SC with Mr M. Gornham | Norwicki Carbone |
| For the Defendant | Mr G. Lewis SC with Mr P. Bourke | Wisewould Mahony |
HER HONOUR:
The Application
1. The plaintiff seeks leave from the Court pursuant to s. 93 of the Transport Accident Act 1986 (“the Act”) to issue common law proceedings against the defendant for damages for pain and suffering in respect of an injury suffered by him in a transport accident (“the accident”) on 2 March 2003. The impairment relied upon is a serious long term impairment of the body function of the right leg.
2. The plaintiff gave evidence and, in support of his application, relied on four affidavits, dated 11 September 2009, 14 February 2012, 6 December 2012 and 23 September 2013. As is usual in these cases, both parties relied on medical reports and other documentation contained in their respective court books.
Relevant facts
3. The plaintiff’s background history is set out his affidavit of 11 September. 2009. He is forty-seven years old, being born in Alexandria, Egypt, on the 26 of November 1965. He completed both primary and secondary schooling in Egypt, up to Year 12 equivalent, finishing his secondary studies in about 1980. In 1982, the plaintiff commenced an electrical engineering degree at the Don Bosco Institute of Alexandria which he completed in about 1985.
4. The plaintiff migrated to Australia on or about 31 January 1986 and is married with two children. After arriving in Australia in January 1986, he was employed in a number of jobs, including as a process worker in a brush factory in Collingwood; as a machine operator in the Toyota factory in South Melbourne; and as a machine operator for a chef in Brunswick. While he was working throughout 1986 he also studied at Preston College as an electrician.
5. In or about 1987, the plaintiff started his own business named C & M Catering Equipment which dealt mainly in the repair and sale of second-hand and new catering equipment. He changed the name of his business to ACM Australian Catering Machinery (“ACM”) and operated this business for approximately 20 years, ceasing trading in about 2006.
6. In about 1993, the plaintiff started another company named M & M Australia Wide (“M & M”). He was also a sole trader in this business and dealt in the importation of catering equipment from overseas and selling this equipment wholesale. This business is still in operation.
The accident
7. On or about 2 March 2003, the plaintiff was travelling down Springvale Road when he stopped and parked his car legally outside a strip of shops on Springvale Road. He then exited his car and walked to the rear. He was proceeding to get his brief case out of the boot of the car when he heard a screech of tyres behind him. The plaintiff believed that a car which had been travelling in the middle lane of Springvale Road had lost control and swerved into the left lane. It collided with him and pinned him between the two cars. The plaintiff immediately felt pain in both of his legs, in particular in his right leg.
8. The plaintiff was taken by ambulance to the Monash Medical Centre where he presented with swelling and bruising to his right lower leg. X-rays were taken but they did not indicate any fractures. His leg was placed in plaster to immobilise it in order to treat the symptoms he was suffering from
9. On or about 17 March 2003, the plaintiff attended his General Practitioner, Dr Mourad Alexander, as his right leg had become swollen and he was experiencing pain in his right calf muscle and ankle. He was also experiencing some weakness and instability in his right leg. He underwent an ultrasound that indicated swelling of the muscles in his right leg.
10. The plaintiff was referred by Dr Alexander to Mr Roger Sutherland, an orthopaedic surgeon, for further assessment of his right leg symptoms. He attended Mr Sutherland on or about 12 May 2003. The plaintiff was also referred to Mr Roderick Cunningham, another orthopaedic surgeon, for a second opinion.
11. Mr Cunningham believed that the plaintiff had sustained a muscle hernia and recommended that he undergo surgical treatment in an effort to repair the hernia and alleviate the pain and swelling he was experiencing in his right leg.
12. In about August 2006, the plaintiff was referred to Dr John Merory for the ongoing management of his right leg as he experienced some numbness in his foot and ankle. Dr Merory conducted a nerve conduction study on or about 24 August 2006, which the plaintiff was told indicated some evidence of nerve damage to his right leg.
13. As the plaintiff’s symptoms continued to persist, Dr Alexander referred him to Mr Cunningham again. On or about 8 July 2009, he underwent a right knee operation for the release of the peroneal nerve. Following this operation, there was some improvement. However, the plaintiff continued to experience pain in this area despite the operation.
14. After the surgery, the plaintiff’s treatment remained conservative and he took Tramadol daily for pain. In early 2013, he was referred to Dr Safa Hamza at La Trobe University for pain management and his Tramadol medication was increased from 100 milligrams in the morning to include an extra 100 in the evening. In addition, Lyrica and Panadol Osteo were introduced into his pain management regime.
Plaintiff’s medical opinions
Mr Roger Sutherland
15. Mr Sutherland reported on 8 April 2009 that the plaintiff was referred to him by Dr Alexander on 12 May 2003. Dr Sutherland’s noted that the plaintiff’s main problem was pain in the right calf and shin but that he also had bruising to his left thigh. His clinical examination revealed that:
“a small effusion was present in the right knee and there was some tenderness on the medial joint line. A McMurray’s test was negative. Within the calf there was a slight tenderness and mild subcutaneous thickening.“[1]
[1]Plaintiff’s Court Book (“PCB”), p. 58.
16. Mr Sutherland concluded that the plaintiff had a crushing injury to his right leg. He noted that the plaintiff had been in persistent discomfort since. In his opinion, the plaintiff probably had an injury to the muscle and possibly to minor nerve bunches but this has not been demonstrated by any imagining.
Mr Roderick Cunningham
17. There were a number of reports from Mr Cunningham who first saw the plaintiff on 7 May 2004. On 8 July 2009, he carried out a release of the common peroneal nerve. Mr Cunningham reported that, on review, it appeared that the plaintiff had complete relief of his pre-operative pain.
18. In his report of 15 February 2012, Mr Cunningham said:
“I believe that the crushing nature of his injury precipitated or caused an entrapment syndrome of his right common peroneal nerve. From the plaintiff’s response to the surgery when last assessed, his prognosis must be regarded as good. It was conceivable that he had some intra neural injury to both the posterior tibia nerve and the common peroneal nerve, which might explain his calf problems and indeed there was in all likelihood muscle damage secondary to his injury. Again his prognosis should be regarded as good.”[2]
[2]PCB, p. 77.
Dr John Merory
19. In his report of 22 August 2006, Dr Merory informed Dr Alexander that he could not see any evidence of a posterior tibial nerve lesion. However, that he would arrange for a nerve conduction study. On 5 September 2006, Dr Merory reported on the results of a nerve conduction study that:
“the nerve conduction studies show abnormalities in the posterior tibial nerve. However, the right peroneal tibial nerve F-wave latency is prolonged, suggesting a more proximal lesion.”[3]
[3]PCB, p. 62.
Professor Kenneth Myers
20. Professor Myers provided six reports to the plaintiffs solicitors. In his first report of 30 January 2012, Professor Myers described the plaintiff’s stated symptoms relating to his injuries as follows:
· If he sits for too long, both legs become numb and he develops cramps in the calf, particularly on the right.
· If he drives for too long, then he gets pain in the front of his right ankle and foot.
· A lot of blue veins had developed on the inner aspect of the right ankle.
· Sometimes the right leg swells.
21. On examination, Professor Myers noted measured swelling of the right ankle and calf and he reported that:
“there is a one centimetre increased measured circumference of the right ankle compared to the left and a three centimetre increased measured circumference at the right calf compared with the left; though the circumference of the thighs were equal. There is normal range of movement of all joints in both lower limbs. There is a normal power of ankle movement and no apparent loss of sensation.”[4]
[4]PCB, p. 88.
22. Professor Myer’s diagnosis was that there has been “soft tissue injury with tears in the fascia resulting in muscle hernias on the anterior aspect of the right leg”. He also thought that:
“there had “probably been minor damage to the right peroneal nerve with no ongoing neurological disability. There is scarring of the leg. There has almost certainly been damage to lymphatics as a result of the soft tissue injury causing a degree of lymphedema, leading to measured increase in circumference of the right ankle and calf even at this late stage.”[5]
[5]PCB, pp. 89-90.
23. In this report of 10 December 2012, Professor Myers was of the opinion that there would be no improvement of the plaintiff’s condition in the future. He considered that the plaintiff’s social, domestic and recreational activities would be restricted long term. He also believed that the plaintiff’s work activities would be restricted to their present level but that he would be able to cope with his present work activities in the long term.
24. In a letter to the plaintiffs solicitors, dated 20 December 2012, Professor Myers agreed with the opinion of Dr Alexander, that the plaintiff suffered from right leg regional pain. However, he did not agree that the plaintiff suffered from reflex sympathetic dystrophy.
25. In his report of 11 September 2013, Professor Myers disagreed with Professor Buzzard’s opinion that the accident should not preclude the plaintiff from repairing catering equipment or from kneeling. Professor Myers considered that the plaintiff continued to have evidence of swelling in the leg resulting from damage of lymphatic vessels together with past evidence of damage to a nerve in the leg.
Dr Peter Blombery
26. In his report of 17 February 2012, Dr Blombery noted that the plaintiff told him that he has ongoing problems with his right lower leg, constant pain of some description in the leg, and that the site and pain varied from the inner or medial aspect below the knee.
27. On his examination, Dr Blombery noted there was no swelling of the calf or foot and there was no wasting. The right calf measured 39 centimetres in circumference compared with 37 centimetres to the left calf. Sensation was normal throughout the lower leg and foot. All deep reflexes were normal. Movements were full.
28. Dr Blombery’ s diagnosis of the injury was:
“a crushing injury of the calves of both legs with resultant bruising, haematoma and oedema of the right leg in particular with muscle herniation and neurological residual symptoms and disability.”[6]
[6]PCB, p. 129.
29. In his opinion, it was more probable than not that the injuries and present disability were the direct result of the motor car accident as prior to that the plaintiff had no symptoms of any kind in his leg.
30. In his report of 23 August 2013, Dr Blombery’s diagnosis was “ a crush injury of both legs with a resultant anterior tibial muscle hernia of the right leg, calf swelling and superficial peroneal nerve neuropathy, established by nerve conduction studies.“[7]
[7]PCB, p. 135.
31. Dr Blombery noted restrictions in the plaintiff’s life including that he could not do the vacuuming, sweeping, mopping and bathroom cleaning. Recreationally he was not able to go swimming; unable to attend gymnasium; unable to ride a bike or walk for long distances; or play soccer or other sports with his children. He had developed severe leg cramps. In his opinion, the plaintiff’s prognosis was not good. His symptoms have been present for ten years and were likely to continue.
Dr Michael Epstein
32. Dr Epstein provided the plaintiff’s solicitors with a number of reports concerning his psychological condition. In his opinion the combination of the physical and psychological effects of the accident and the way that they interfered with the plaintiff’s quality of life has led to the development of a chronic adjustment disorder with anxious and depressed mood.[8]
[8]PCB, p. 122.
33. In the report of 3 September 2013, Dr Epstein commented upon the fact that a number of medical experts could not find any specific pathology to explain the plaintiff’s pain and he referred to the chapter on pain in the American Medical Association Guide to the Evaluation of Permanent Impairment, 5th Edition, page 568 which stated:
“A major implication of the research on sensitisation is the failure of medical and surgical investigation to account for a given pain may result not from looking in the wrong place but from looking at the wrong time; that is, the investigations may be directed towards the organ or body part that was historically responsible for the individual’s pain but they may be unrevealing because the pain having been initiated by an injury or illness in the past is now relatively independent.”
34. In his opinion, this was likely to be the situation with the plaintiff.
Dr Mourad Alexander
35. The plaintiff’s doctor, Dr Mourad Alexander, provided the plaintiffs solicitors with a number of reports and attended for cross examination. In his opinion, the plaintiff suffers from reflux sympathetic dystrophy or regional pain syndrome. While Dr Alexander respected Professor Myers’ opinion that the plaintiff did not suffer from reflex sympathetic dystrophy, it did not change opinion In his opinion the surgery had not relieved the pressure on the perineal nerve.[9]
[9]Transcript, p. 53.
36. Dr Alexander did not accept that there was no organic explanation for numbness around the whole of the plaintiff’s leg from the hip to the ankle. When it was put to him that he would be hard pressed to find an organic explanation his response was:
“You can .When you have someone who has had his calf squashed between two cars you’re damaging muscle and you ‘re damaging nerves “[10]
[10]Transcript, p. 46.
37. Dr Alexander was critical of some of the medical experts suggesting that they only saw the plaintiff for three to five minutes before producing their reports. He said:
“This guy has an injury and this guy is in pain and the TAC, for me is an insurance company, if you have damage compensate the patient, as simple as that. You can get 10 independents, they will give you different opinions, they don’t know the patient better than me.”[11]
[11]Transcript, pp. 50-51.
38. Dr Alexander agreed he had not seen the plaintiff in the last 12 months but that he had seen him more recently on 24 September 2013. His clinical notes of that date reported that the plaintiff still had the same pains in his right leg. On examination, the right calf was mildly tender and was a centimeter larger on the right. Dr Alexander had prescribed Amitriptyline, which he said was only prescribed for people with chronic pain.
Defendant’s medical opinions
Professor Stephen Davis
39. The defendant relied on the reports of Professor Davis dated 15 June 2012, 4 September 2012 and 4 September 2013. In his opinion, the plaintiff had:
“Undoubtedly sustained a significant crushing injuries particularly in the right leg in this accident in March 2003. He had significant soft tissue trauma with subcutaneous oedema but the major ongoing problem has been protracted pain syndrome without any firm diagnosis being made.”[12]
[12]PCB, p. 42f.
40. Professor Davis thought that the best explanation was that there was probably some form of chronic regional pain syndrome in the right lower leg but that the anatomic basis remained elusive. There was no evidence of neurological impairment.
41. While Professor Davis thought that there may be a “functional component” and that there was “certainly no clear cut major organic pathology”, in his opinion the plaintiff “did not appear to be embellishing his symptoms and there were no obviously functional signs on examination such as collapsing type weakness or non anatomical sensory loss”.[13]
[13]Defendant’s Court Book (“DCB”), p. 42e.
Mr Terry Devine
42. There were two reports from Mr Devine, dated 20 June 2012 and 20 September 2013. Mr Devine agreed with the diagnosis of Professor Davis that the plaintiff had a chronic pain syndrome involving the right lower leg which had stabilised. On examination on 20 September 2013, he noted some swelling in the plaintiffs right calf.
43. While Mr Divine could not detect the presence of any functional component or psychological reaction by the plaintiff to his physical condition, he could not rule out the possibility that one exists.[14]
[14]DCB, p. 65.
Mr Michael Shannon
44. In his report of 18 June 2012, Mr Shannon noted that the plaintiff had been extensively investigated, that he had seen two orthopaedic surgeons on a number of occasions as well as a Neurologist and Vascular Surgeon and no significant pathology had been identified except for possible mild compression of the peroneal nerve.
45. Mr Shannon’s diagnosis was that the plaintiff had sustained a crushing injury resulting in soft tissue injury and mild common peroneal nerve. lesion He reported that on examination the plaintiff was able to stand on his heels and toes and could he could perform a virtually full squat. He had a full range of movement of the right ankle and no wasting of the thigh or lower leg.
46. In his report of 12 November 2012, Mr Shannon commented on the discrepancy between his finding on examination on two occasions that there was no difference in the circumference of the plaintiff’s thighs and calves compared with Mr Brearley’s finding of a 1cm difference. In his opinion, a discrepancy of less than 2cms would not be regarded as significant.[15]
[15]DCB, p. 50.
Associate Professor Anthony Buzzard
47. Associate Professor Buzzard diagnosed the plaintiff as suffering soft tissue injuries to both legs in the accident, the right being more markedly affected than the left. As far as the plaintiff’s continuing symptoms in the right leg (including numbness when he had been sitting for a while) were concerned, Professor Buzzard thought that the symptoms were predominantly non-physical.[16]
[16]DCB, pp. 70-71.
Dr Nicholas Ingram
48. In his report dated 19 July 2010, Dr Ingram assessed the plaintiff as mainly suffering from a chronic adjustment disorder with depressed mood. Psychologically, he had become depressed and angry because of the pain and associated limitations and there had been some degree of social withdrawn and loss of motivation accompanying his lower mood.
49. While Dr Ingrim did not think that the plaintiff’s psychiatric symptoms interfered significantly with his ability to work, any limitations being related to pain, he thought that his depression probably interfered with his ability to enjoy domestic and leisure activities. Although this would improve with antidepressants, the plaintiff was not prepared to try them.
Mr Gary Fell
50. Mr Gary Fell, a Vascular Surgeon, reported on 7 June 2004 that the plaintiff’s pain was not vascular in nature and it was very unlikely to be due to any significant vascular injury with his normal pulses.
Tests carried out
51. Various tests were carried out to determine the source of the plaintiff’s problems, including:
· A full body bone scan on 1 February 2005, which did not show any abnormalities at all in the lower limbs.[17]
[17]DCB, p. 5.
· The release of the plaintiff’s right common peroneal nerve on 8 July 2009 from which he appeared to have complete relief of his preoperative leg pain.[18]
[18]DCB, p. 5a.
· A venous Doppler right leg test, on 17 March 2003, which showed an intramuscular haematoma consistent with the recent muscle tear but no DVT.[19]
[19]DCB, p. 32.
· An ultrasound of the right leg on 7 April 2003, which showed a mild subcutaneous oedema.[20]
[20]DCB, p. 33.
· A bone scan 17 April 2003, which revealed no evidence of underlying bony injury but probable minor soft tissue inflammation and in the proximal right calf immediately.[21]
[21]DCB, p. 34.
· A normal ultrasound examination right calf on 31 March 2004.[22]
· An MRI of the right lower leg, the conclusion being minimal pretibial oedema is seen of doubtful clinical significance with no other abnormality identified.[23]
[22]DCB, p. 35.
[23]DCB, p. 36.
Claimed consequences of the injury
52. The plaintiff claims that the injury to his right leg in the accident has affected his ability to participate in social, domestic and recreational activities. It has also affected his ability to perform physical work and run his business. These consequences from the injury may be summarised as follows:
Pain
53. He has constant pain on the inner aspect of his right lower leg below the right knee in area and in the calf he gets pain in the bottom of his right foot. The pain increases the more active he is.[24]
[24]PCB, p. 34.
Treatment
54. Dr Alexander remains his treating doctor. The plaintiff normally takes two Tramadol for pain relief, two Panadol Osteo approximately three times a day, Lyrica for nerve pain one a day and Nexium for stomach problems. [25]
[25]PCB, p. 34.
Sport, physical fitness and recreation
55. Priorhttp:// - 32#32 to transport accident, the plaintiff enjoyed playing soccer at a club level. He was an active participant in soccer clubs, including being involved with junior soccer coaching. As a result of the transport accident, he cannot return to coaching or play soccer.[26]
[26]PCB, pp. 22 & 26.
56. Before the transport accident, he also enjoyed swimming. However as he now suffers from cramps and pain in both legs, in particular his right leg when swimming he no longer can do it.[27]
[27]PCB, p. 22.
57. Prior to the accident the plaintiff used to enjoy keeping fit. He had a treadmill at home and used to exercise a couple of times a week. He can no longer use it and he has lost his previous level of fitness and gained weight.[28]
[28]PCB, pp. 26 & 23.
58. Prior to the transport accident, the plaintiff could ride a bike but he can no longer do this. After the accident he tried riding his bicycle but it increased the pain in his leg. While trying to ride the bicycle his right leg gave way and he lost his balance and fell off. [29]
[29]PCB, p. 26.
Domestic tasks
59. Prior to the transport accident, his garden was a source of pride to him. He now finds it difficult to mow the lawn and tend to the garden. He can longer perform house maintenance tasks such as painting and small repairs. [30]
[30]PCB, p. 22.
General activities
60. He has difficulties with activities that involve climbing, using stairs and ladders walking for an extended period of time, standing in one place for a long time (as his right leg sometimes gives way when standing), crouching, squatting and kneeling. Driving his car for more than half an hour aggravates the pain in his leg.[31]
[31]PCB, p. 26.
Sleep and sexual relations
61. He has difficulty sleeping due to the pain in his right leg. He tends to sleep with his right leg protruding from the bed covers. His right leg affects his sexual relations.[32]
[32]PCB, pp. 27 & 32.
Psychological
62. Since the injury the plaintiff has become moody and anxious. He feels frustrated and angry about the pain and disability in his right leg. He argues with his wife more.[33]
[33]PCB, p. 23.
Business
63. In his first business ACM, the plaintiff was required to perform and repair maintenance work on various items. He also performed electrical work. This generally required him to perform actions such as bending, crouching, squatting, kneeling and prolonged standing. After the accident, he struggled to perform his duties for ACM. He shut down the business because he could no longer perform or afford to hire additional employees to perform the work he had previously done.[34]
[34] PCB, p. 27 & 28.
64. However, It was essentially conceded by the plaintiff (he is not pursuing a claim for economic loss) that this has not been a great disadvantage to him in that he set up M & M, a company that trades in the importation into Australia for catering equipment for overseas manufacturers.
65. With the M & M business, the plaintiff is required to travel to foreign countries, in particular China, to visit factories and exhibitions to find good catering equipment. While the plaintiff conceded that the work for this company is less physically demanding, the ongoing symptoms in his right leg were said to make it difficult for him to perform duties. He had to use the services of a driver to take him to exhibitions and factories and he had difficulty in walking around and sitting down and working at a desk for a long time. [35]
[35] PCB, p. 28.
Affidavit of the plaintiff’s wife
66. In her affidavit dated 10 February 2012,[36] Connie Said supported her husbands claims with respect to the affect of his injury on his life. She referred to him as prior to the accident being a fit and physically active person who loved to play soccer and riding his bicycle regularly. He liked to keep fit and used to share many of the household tasks. He had been a sociable person and they had regularly gone out as a family to see friends.
[36] PCB, p. 37.
67. Since the accident her husband had become withdrawn and spent more time by himself. He struggled to perform activities such as bending, squatting or kneeling. She could often see from his body language and facial expressions that he was in pain when he performed many physical activities.
68. The plaintiff had told her that he is upset about the pain and symptoms in his right leg and that he misses his hobbies and pastimes. He had also told her that it was hard for him to work long hours because he was often struggling with the pain in his right leg.
Affidavit of George Abraham
69. In his affidavit of 1 October 2013[37] Mr Abraham deposed that he had known the plaintiff since the 1980s through mutual friends and played outdoor and indoor soccer with him. He supported the plaintiff’s claim that he was a very fit and physically active person prior to the accident.
[37]PCB p. 41a.
70. In addition he confirmed that since the accident the plaintiff was no longer the fit and healthy person he was before and that he had not returned to playing soccer. Mr Abraham had noticed that the plaintiff now struggles to sit or stand for extended periods of time. He was more restricted in his movements and struggled to get around like he did before the accident.[38]
[38]PCB, p. 41b.
The issues
71. In terms of pain and suffering, the plaintiff must show that the consequences to him of any impairment, when judged by comparison with other cases in the range of possible impairments, may be fairly described as being more than significant or marked and as being at least very considerable.
72. The defendant accepts that the plaintiff suffered an injury to his lower right leg in the accident but queried the nature of the injury and submitted that while the consequence of the injury might on some view be significant or marked they were certainly was not “very considerable.”
73. With respect to the nature of the plaintiff’s injury, the defendant relied, in particular, on:
· The fact that the plaintiff agreed that his knee and ankle could be moved freely.[39]
[39]Transcript p. 13, line 15.
· The plaintiff agreed that, on occasions, the knee and ankle had full movement and one leg could move the same as the other.[40]
[40]Transcript p. 16, lines 18-24.
· That, while the plaintiff had said he could not touch his toes, Mr Sutherland had reported that the plaintiff was able to touch his toes.[41]
[41]PCB, p. 56.
· That Mr Shannon reported, in June 2012, that both the right knee and ankle moved freely and the plaintiff was able to stand on tiptoes and crouch.[42]
[42]PCB, p. 45.
· That Mr Brearley reported no swelling of the calf or foot, and no wasting.[43]
[43]PCB, p. 128.
· That Professor Myers reported a normal range of movements, normal power of movement of both feet and normal sensation of the feet.[44]
[44]PCB, p. 100.
· That Professor Davis reported that the examination on June 2012, was basically normal.[45]
[45]DCB, p. 41.
· That Mr Cunningham reported after the operation that the perineal nerve was cleared.[46]
[46]Transcript p. 75.
· That Me Brearley reported pain coming from the heels and travelling upwards.[47]
· That there was a discrepancy in the history given by the plaintiff as to cramping, in that he told Mr Cunningham and Myers that it happened when he was sitting but told Professor Davis that it happened when he was walking.[48]
[47]PCB, p. 134.
[48]Mr Cunningham at DCB, p. 7; Mr Myers at transcript, p. 87; Professor Davis at DCB, p. 42d.
74. With respect to pain and treatment , it was submitted that the plaintiff treatment was modest.
75. As far as the consequences of the injury on the plaintiff’s sporting activities were concerned, it was submitted that as he spent a lot of time in China he would be unable to play soccer in any event. In addition, that he had admitted that because of the time he spent in China, he was not able to spend time coaching.
76. With respect to the plaintiff’s credit, it was submitted that it was an issue that he had claimed that he had no knowledge of the state of affairs of his business for the last financial year. The financial returns had not ad not been produced and it was submitted that I should draw an adverse inference that the documents would not help the plaintiff’s case.
77. In relation to the Dr Alexander’s evidence, it was submitted that his evidence was not objective. It was submitted that the general practitioner could not explain the various symptoms. In addition that that he had used terms like “reflex sympathetic dystrophy” interchangeably with “regional pain syndrome.” wen Kenneth Myers did not see those terms as interchangeable.[49]
[49]Transcript p. 70.
78. However, the defendant placed the most reliance on the fact that despite his injury, the plaintiff had been able to continue to work and had build up a successful business in China. It was also submitted that whether or not the injury had happened, the plaintiff would have pursued lines of supply from China as this was a profitable business move for him.
79. In support of these submissions, the defendant relied on Hawkins v DHL Express (Australia) Pty Ltd 2013 VSCA 26 at paragraph [63], Dyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, Sabo v George Weston Foods [2009] VSCA 242 at paragraph [17], and Sharon Couzens v TAC (2011) VCC, a decision of His Honour Judge Misso, where His Honour held that the impairment suffered by the plaintiff was more in the character of approaching being significant or marked but falling short of being “very considerable” and falling short of being serious.
Findings
Nature of injury
80. Dealing firstly with the nature of the plaintiffs injury, I accept that the plaintiff suffered an injury to his right lower limb in the form of a significant crush injury with resultant muscle-/soft tissue damage and damage to his right common peroneal nerve. I also accept that this organic injury has resulted in the plaintiff suffering a chronic regional pain syndrome involving the right leg.
81. This finding is supported by most of the medical experts, including Mr Cunninham, Dr Merory, Professor Myers, Mr Brearley, Dr Blombery, Professor Buzzard and Mr Shannon.
82. With respect to the finding that the plaintiff suffers from a chronic regional pain syndrome, this is the diagnosis of Professor Davis and Mr Divine. Dr Alexander was also supportive of this diagnosis in so far as he diagnosed a right leg regional pain syndrome. Professor Myers also agreed with this diagnosis.
83. I reject the Professor Buzzard’s opinion that the plaintiff’s right leg symptoms are predominantly non-physical. His opinion is inconsistent with the majority expert opinion, which is essentially that despite the difficulties in pinpointing the exact nature of the injury it is a crushing injury of an organic nature.
84. On 17 March 2003, Dr Alexander observed that plaintiff’s right lower leg was swollen and his right calf tender.[50] On 29 September 2013, Dr Alexander observed that his right calf was mildly tender and his right leg circumference was 1cm larger than the left.[51]
[50]PCB, p. 65.
[51]PCB, p. 70(a).
85. Mr Myers found a 1cm increased measured circumference of the plaintiff’s right ankle compared to the left and 3cm increased measured circumference of the right calf compared to the left.[52] Mr Myers, on 30 January 2012, noted measured swelling of the right ankle and calf and his opinion was that there has almost certainly been damage to the lymphatics as a result of the soft tissue injury causing a degree of lymphoedema, leading to measured increase in circumference of the right ankle and right calf even at this late stage .[53] On 19 September 2013, Mr Divine found an enlargement of the plaintiff’s right leg.[54]
[52]PCB, p. 88.
[53]PCB, p. 89.
[54]DCB, p. 63.
86. In so far as the plaintiff’s credit is concerned, although I find it difficult to believe that he did not know the financial details of his company for 2013, I accept his evidence with respect to his injury. On this subject he appeared to be genuine and did not attempt to embellish his symptoms. In this respect, I note that while Professor Davis thought that there may be a functional component he also said that the plaintiff “did not appear to be embellishing his symptoms and there were no obviously functional signs on examination such as collapsing weakness or non-anatomical sensory loss”.[55] Mr Shannon did not detect a functional component or psychological reaction to his condition during his interview and examination but he thought that the plaintiff presented as a rather intense personality.[56]
[55]DCB, p. 42f.
[56]DCB, p. 45.
Consequences of the injury
87. As Ashley JA and Beach AJA stated in Stijepic v One Force Group Pty Ltd [2009] VSCA 108, at paragraph [47]:
“Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered.”
88. While in this case the plaintiff returned to work after the injury, I accept that the work he is now doing now is a lot less physical than his previous work. I accept that his previous business involved doing maintenance work which involved physical actions such as bending, squatting, crouching, kneeling and standing. I also accept that the plaintiff changed his business due, in main, to these physical problems.
89. While the plaintiff continues to operate his catering equipment company, I accept that he no longer does any physical work. I accept that he spends time inspecting the factory in China where they manufacture the catering equipment and that he does office work. He travels to China by plane in business class which is quite comfortable and he is driven to meetings and functions.
90. I accept the majority medical opinion that the plaintiff is capable of continuing to run this business. However, I also accept that he has difficulties in sitting down and working at a desk for a long time due to ongoing symptoms in his right leg.
91. The plaintiff’s injury has also significantly impacted on his ability to participate in social, domestic and recreational activities such as playing soccer, swimming, riding his bike and keeping fit. He is no longer the fit and healthy man that he was prior to this injury.
92. While I accept that, due to his six months in China, the plaintiff is unable to coach soccer, I also accept that, but for his injury, when he is at home he would have continued to take part in his previous sporting activities. I also accept that the plaintiff’s injury has affected not just his ability to play sport, but also his ability generally to get around as he has difficulties with walking for extended periods, standing in one place for too long and climbing. In addition, he has difficulty sleeping and the injury has affected his marital relationship. In accepting that he has these limitations, I have taken into account the affidavits of his wife and his friend George Abraham, neither of whom were challenged.
93. In accordance with the analysis in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, I have considered not only ‘what the plaintiff said about the pain (both in court and to doctors)’ but also ‘what the plaintiff does about the pain (eg medication, rest, seeking medical treatment)’ as well as ‘what the doctors have said about the extent and intensity of the plaintiff’s pain’ and ‘what the objective evidence shows about the disabling effect of his pain.”
94. The plaintiff’s pain is present all the time.[57] He is taking daily medication, including:
[57]PCB, p. 4.
· Tramadol – 2 x 100mls
· Panadol Osteo – 6 per day
· Lyrica – 1 per day
95. When the plaintiff saw Dr Hama for pain management, he described the pain as a constant sharp pain around the shin, radiating down to the foot and sometimes radiating to the inner side of the thigh. He also described intermittent muscle cramps at the calf region when he stands or walks for a long distance. The pain intensity ranged between a 6-8/10.[58]
[58]PCB, p. 79.
96. Other than some inconsistency as to the cramping, the plaintiff’s complaints of his symptoms to medical experts has been largely consistent. The plaintiff’s treatment has included surgery, massage, acupuncture, physiotherapy and pain management. Although he did not attend his GP often in 2012, he received pain management treatment.
97. In accordance with Richards v Wylie (2000) 1 VR 79, I have taken into account that due to his physical injury, the plaintiff has suffered a chronic adjustment disorder with depressed mood. In Richards v Wylie, the Court stated:
“The serious injury defined sub-paragraph (a) of sub-s(17) can I have its seriousness measured in part by the mental response to a physical impairment. What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function.”
98. In all the circumstances of this case, the plaintiff has satisfied me that the consequences to him of his impairment, when judged by comparison with other cases in the range of possible impairments, may be fairly described as being more than significant and marked and as being at least very considerable.
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