Salerno v Transport Accident Commission
[2016] VCC 685
•2 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-01856
| NICOLA (NICK) SALERNO | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 April 2016 | |
DATE OF JUDGMENT: | 2 June 2016 | |
CASE MAY BE CITED AS: | Salerno v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 685 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – serious long-term impairment or loss of a body function by reason of injury to the right eye – plaintiff hit in face by rear-view mirror when another vehicle hit side mirror of plaintiff’s vehicle, causing mirror to fly through open window of plaintiff’s vehicle
Legislation Cited: Transport Accident Act 1986, s93(17)
Cases Cited:Humphries v Poljak [1992] 2 VR 129; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted to the plaintiff to bring proceedings to recover damages at common law for injuries suffered in the transport accident on 8 March 2012.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram with Mr J Valiotis | Shine Lawyers |
| For the Defendant | Mr D Myers | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 8 March 2012 (“the transport accident”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraph (a) of the definition of “serious injury” to be found in s93(17) of the Act. There –
“serious injury means –
(a) serious long-term impairment or loss of a body function.”
4 The loss of body function relied upon in this application is the right eye.
5 The plaintiff sees leave to issue proceedings at common law.
6 The plaintiff relied upon two affidavits sworn by him on 5 March 2015 and 9 March 2016.
7 The plaintiff was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The issue
8 Counsel for the defendant told the Court that the main issue was that the consequences of the plaintiff’s right eye injury did not meet the “very considerable” test set out in s93 of the Act. The defendant submitted that the injury was a mere annoyance or irritation to the plaintiff and as such could not be elevated to the status of “serious injury”.[1]
[1]Transcript (“T”) 39, Line (“L”) 28
9 The other points of contention between the parties was to the exact nature of the “floaters” the plaintiff described as being present in his right eye and the relevance of the plaintiff’s history of eye problems prior to the transport accident.
The Plaintiff’s credit
10 There was no real challenge to the plaintiff’s credit. There was no suggestion that the plaintiff does not suffer from floaters in his right eye. However, counsel for the defendant raised with the plaintiff the fact that he had reported black lines to Associate Professor O’Day, eye specialist, before the cataract surgery. The plaintiff’s evidence was that after the cataract surgery in the right eye, his vision was perfect.
11 The plaintiff answered questions in a direct and forthright manner. He made concessions in his evidence, such as that his symptoms have improved since the injury, he is still able to work and that the injury had not affected his usual domestic and leisure activities. I accept that the plaintiff was a truthful and credible witness.
Analysis of the evidence
(a) Pre-transport accident
12 From around 2008, Professor O’Day was the plaintiff’s treating eye surgeon. He confirmed that the plaintiff suffered blurred vision, which improved after a change in the plaintiff’s diet. In 2009, he was diagnosed with cataracts in both eyes. In May 2009, the plaintiff underwent cataract surgery on the right eye, which corrected his vision. In November 2013, he underwent surgery to remove cataracts from his left eye.
13 Counsel for the defendant raised the plaintiff’s history of cataracts and other right eye problems in its submissions. However, at the time of the transport accident, the plaintiff’s evidence was that he was not experiencing any difficulties with the vision in his right eye. The plaintiff told the Court that there was no haze, blur[2] or “lines and spots” in his right eye prior to the accident.[3] He described his vision as “perfect” after the cataract surgery.[4]
[2]T9, L43-45
[3]T6, L11-12
[4]T19, L1
14 Based on the plaintiff’s viva voce evidence, I conclude that at the date of the transport accident, the plaintiff was symptom-free in his right eye. Accordingly, the plaintiff’s history of eye issues does not bear weight on my assessment.
(b) Post-transport accident
15 Based on the medical evidence, I am satisfied that the plaintiff suffered a compensable injury arising out of the transport accident. All of the medical witnesses accepted that the plaintiff suffered an injury in his right eye when he was hit in the face by a rear-view mirror flying through his car window during the accident. This caused him to suffer a traumatic hyphaema.[5] As a result, initially, the plaintiff’s vision was blurred in the right eye. Since that time, there has been gradual improvement.
[5]Professor O’Day – Plaintiff’s Court Book (“PCB”) 33
16 The current medical evidence was explained by Professor O’Day and Dr Gale, both ophthalmologists. The medical evidence found that the plaintiff’s major problem is some spots or floaters, particularly in the periphery of his vision.[6]
[6]Professor O’Day – PCB 34
17 Professor O’Day, treating ophthalmologist, said the changes in the right eye are that of vitreous floaters, which are secondary to the trauma of the transport accident. The condition has stabilised. Since the transport accident, the plaintiff had suffered a rise in intraocular pressure with the trauma. He considered it was possible that, in the long-term, the plaintiff may develop elevated intraocular pressure, which may require treatment. Currently, he has changes in the right eye of vitreous floaters.[7] In the event the plaintiff developed raised intraocular pressure, it may be treated either with drops to control the pressure or laser to the trabecular meshwork, or surgical intervention, depending on the effect of the procedures performed.[8] Professor O’Day said that he did not believe the injury would reduce the plaintiff’s capacity for employment except for activities that required stereoscopic vision. He said that the plaintiff’s injury is unlikely to significantly impact on his daily living, apart from watering and grittiness of the eye and the dark spots in his vision.[9]
[7]Professor O’Day – PCB 35
[8]Professor O’Day – PCB 35
[9]Professor O’Day – PCB 35-36
18 Dr Gale said the plaintiff’s ophthalmological condition of hyphaema, posterior vitreous detachment and increased intraocular pressure are all related to the transport accident. The plaintiff’s pre-existing condition of glaucoma had been aggravated by the transport accident.[10] Dr Gale said:
“… the spots in the periphery of [the plaintiff’s] vision are retinal conditions that are probably related to secondary vitreous detachments. They are probably blood remnants in the vitreous precipitated by the accident. Another cause which seems probable is that at the time of impact, relating to the hyphaema the eye sustained a concussion injury with a secondary vitreous haemorrhage, and now has some vitreous floaters. They are trauma induced. Thus the condition is related to the accident.”[11]
[10]Dr Gale – PCB 51
[11]Dr Gale – PCB 69
19 Dr Gale said the plaintiff reported seeing a few spots, which can be disturbing in bright light and increased the plaintiff’s symptoms of glare.[12] He said, when the plaintiff drove at night time, oncoming headlights would be an inconvenience.[13] He said the plaintiff’s ophthalmological condition was stable. Both medical witnesses agreed that the plaintiff’s condition did not hinder him ophthalmologically to perform his daily activities and employment.[14] However, Professor O’Day accepted that activities requiring stereoscopic vision would be affected. Counsel for the plaintiff accepted this proposition.[15]
[12]Dr Gale – PCB 50 and 66
[13]Dr Gale – PCB 69
[14]PCB 69
[15]T58, L29-31
20 There was no medical evidence produced before me that the condition would improve. I accept that the plaintiff’s right eye condition is long term.
Consequences
21 In considering a physical injury, the enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term. The requirements of the test are set out in the decision of Humphries & Anor v Poljak,[16] where the majority of the Court of Appeal said:
“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’.”[17]
[16][1992] 2 VR 129
[17] Humphries & Anor v Poljak (supra) at 140
22 I now turn to consider the evidence as to the consequences to the plaintiff as a result of the transport accident.
(a) Vision impairment
23 The plaintiff’s evidence is that the floaters, black spots and lines in his right eye are constant. He described them in Court as follows:
· “No, what I have now is black spots; one’s quite large and the rest are all black lines that annoy me all day long.[18]
[18]T5, L29-31
…
· It’s an annoying fact that wherever I look I get this big black spot and all these lines that weren’t there after I had the surgery done. Now they’re there all day long, and I – all the time, and it’s very annoying. I also get weeping of the eye on a regular occasion. I’ve been back to see Mr O’Day and he suggested that I just rest the eye and get some stuff for your eye from the chemist where there’s no prescription needed for it.[19]
[19]T10, L18-26
…
· Only the spots of the eye that annoy me all day and the – all the black lines. That really annoys me. And of course glare, if you walk out during the day, you know it’ll be annoying.[20]
[20]T15, L16-19
…
· Even when I look around the room now, the only thing I see is black lines and a black spot from the right eye only. It’s the left eye I don’t see anything.[21]
[21]T19, L3-6
…
· Yeah, there’s one big spot with – would be a about a quarter of the size of your nail, right. That float’s freely, I can’t control that, and then you’ve got all the other lines right around it.[22]
…
· It’s right in the middle of the eye. You know what I’m saying, like it – they go from right to left, up, down, they just float around. That’s what it is.[23]
…
· At the moment, I see that spot going everywhere, the big spot, and they’re all on the outside of the eye. That’s the best I can describe it.[24]
…
· There’s a big spot in the eye and it just goes from left to right, up, down, all over, depending which way you’re focusing it.
…
· All those black lines. …Like thick lines – some are thin, some are thick, some are small, some are big. There’s quite a few of them.”[25]
[22]T21, L1-4
[23]T20, L20-23
[24]T23, L26-28
[25]T24, L2-6
24 I accept that a permanent condition of floaters constituted by a large black spot, which moves left to right, and up and down in the eye, as well as lines at the periphery, which is constantly present all day long in any activity in which he engages in, is an impairment of the plaintiff’s vision and a consequence at the higher end of the scale that I can take into account.
(b) Vision complications
25 The plaintiff’s current evidence is that his right eye continues to feel as though there is something physically wrong with it. It feels as though there is glass in the eye, which causes discomfort both when the eye is open and shut. The discomfort is not always present but he needs to rest his eye when he becomes conscious of it. When he is attempting to focus or look at something, or concentrating, he sees obvious dark floaters within his eye, which are constantly present and becomes more obvious when he is focusing or looking at something close.[26]
[26]Plaintiff’s second affidavit sworn 9 March 2016 – PCB 23, paragraph [4]
26 The plaintiff’s evidence was that in open areas where there is a lot of natural light, it is difficult to focus his eye and look at something specific. This causes irritation to his right eye and ongoing discomfort. His evidence was that he works in a darker environment, as this has less impact on his ability to focus. The floaters move backwards and forwards and impact on his concentration and cause him a significant amount of annoyance and upset.
27 In his second affidavit, the plaintiff said he suffers increased pain and discomfort on brighter days and the glare of the sun has a blinding impact upon him. In November 2010, he reported problems with glare to Dr Gale.
28 I accept that these are consequences which I can take into account.
(c) Treatment
29 The plaintiff reported to Professor O’Day the grittiness and weeping of the eye, which can occur once or twice a week or every fortnight. Professor O’Day recommended he use Visine to assist with the discomfort and floaters in his right eye, which the plaintiff confirmed he does use two or three times per a week, and told the Court “sometimes it might go a little bit longer, but I use it quite a few times per month”.[27] There was no suggestion by any of the medical evidence that there was anything further that the plaintiff could do to alleviate the issue with his vision.
[27]T26, L3-5
30 The plaintiff receives ongoing treatment from Professor O’Day. He uses Visine eye drops to keep himself going at work.[28]
[28]PCB 23
31 Professor O’Day said that the plaintiff may develop elevated intraocular pressure, which may require treatment by either drops, laser or surgical intervention.
32 The plaintiff’s evidence is that he has discussed the prospect of surgery to his right eye with Professor O’Day. He told the Court that he was informed that there are no guarantees that surgery will fix his eye problem.[29] He also said he was advised by Professor O’Day that the surgery might make his right eye worse if not better and “[he] didn’t want to take the risk”.[30]
[29]PCB 24
[30]T22, L26
33 In respect to treatment, I accept that the treatment the plaintiff currently receives is at the low end of the scale and appropriate. I accept that the possibility of further treatment, as outlined by Professor O’Day, is a consequence I can take into account. I also take into account that surgery is not an option for this particular plaintiff.
(d) Activities of daily living
34 In the plaintiff’s first affidavit, he said that he could not drive a vehicle for prolonged periods due to his right eye injury. He is also less physically active and has put on weight since the transport accident.[31] However, his current evidence is that he drives to and from work daily.
[31]PCB 17
35 He concedes that he still does the gardening but he tends to do it at a slower and more cautious pace due to the right eye impairment. He also derives less pleasure from gardening than prior to the transport accident.[32]
[32]PCB 17
36 I accept that these changes to his daily life are consequences which I can take into account.
(e) Capacity to work
37 It was not in issue that, at the time of the accident, the plaintiff and his brothers owned a family wholesale butcher business, which they had run for many years.
38 The plaintiff’s evidence was that he had been in the family business for approximately forty years and enjoyed his work. The plaintiff’s duties involved ordering and preparing fish, undertaking a daily food audit, supervising the manufacture of smallgoods and serving customers. His work included scaling, boning and portioning fish and putting it in the display counters.
39 The plaintiff’s evidence was that his work required good vision, especially as some tasks required continuous and fast use of knives. He also required good vision to operate machines such as mixing and sausage machines, ovens and grills. [33] He required good vision to read stock invoices, accept goods and check them off against forms, take temperature readings of display counters and make written notes of the readings.[34]
[33]PCB 16
[34]PCB 16-17
40 Dr Gale noted that the plaintiff told him he was off work for approximately a year after the accident and then gradually returned to full-time employment.[35]
[35]PCB 50
41 Professor O’Day considered that the injury would not prevent the plaintiff from working in the occupations raised by the plaintiff except in the area of being a butcher where stereoscopic vision would be needed to avoid injuring himself. Dr Gale agreed with this proposition.
42 The plaintiff’s evidence is that, as a result of his right eye injury, he continues to work in the family business but now has a limited role. Currently, his duties are limited to looking after the food safety plan and serving customers. He reported to Mr Epstein[36] that he avoids using dangerous tools such as filleting knives and machinery.[37]
[36]PCB 85
[37]PCB 17
43 In his second affidavit, the plaintiff said that his injury impacts on the paperwork that he is required to perform because it affects his concentration, which he needs to perform this work. The paperwork relates to record-keeping, invoices, purchases and bills. In the past, it would have consisted of no more than 10 to 15 per cent of his overall work. He now attempts to avoid the work because concentration is difficult and instead, asks others to do the paperwork for him.[38] Otherwise, it takes him longer to finish the paperwork, which bothers him. At the end of the working day, his eye is sore and he has reduced capacity to concentrate on figures. The plaintiff’s evidence was that work was not as enjoyable as before the transport accident.
[38]PCB 23
44 Further, the plaintiff has reduced the hours he works following the injury to his right eye. He reported to Mr Epstein that before the accident, he arrived at work at 4.30am and left work between 11.00am and 3.00pm. Currently, he works from around 4.30am, leaving between 9.00am and 10.00am and sometimes as late as 1.00pm. He said that he still works six to seven days a week.[39]
[39]T11
45 The plaintiff’s evidence is that he has not suffered a reduction in pay. He can basically take his time to do the work that he chooses to do but he does not like being carried by others. He is comfortable serving customers and doing the easier administrative tasks but he is concerned that he is not contributing properly to the family business.[40]
[40]PCB 24
46 The plaintiff’s evidence is that he has lost confidence and self-esteem, as he feels he is not pulling his weight in the business.
47 I accept that, based on the plaintiff’s evidence, he has not suffered any loss of earnings; however, the nature of his work has changed and he derives less enjoyment from working in the business. As a result, he has lost confidence and self-esteem.
48 Further, I accept counsel for the plaintiff’s submission that the plaintiff is working in a protected work environment.[41] I accept that if the plaintiff was to seek employment on the open market, his employability would be affected by his right eye injury. However, I must take into account the plaintiff’s current age, namely sixty years of age. Accordingly, I accept the consequences to this plaintiff would be at the lower end of the scale than if he were forty years of age.
[41]T56, L28-29
49 Ultimately, I accept that the reduction in work hours and limitations of duties are consequences to the plaintiff’s capacity to work that I can take into account.
Dwyer v Calco Timbers Pty Ltd (No 2)
50 Counsel for the defendant cited Dwyer v Calco Timbers Pty Ltd (No 2),[42] where Ashley JA stated that in assessing whether the consequences are serious, “the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained”.
[42][2008] VSCA 260 at paragraph [27]
51 Counsel for the defendant submitted that the plaintiff had retained a considerable amount of capacities, which were his ability to see, read and complete paperwork, and drive. The plaintiff agreed with this submission, but said it was annoying.[43]
[43]T25, L23-25
52 In my view, the plaintiff has retained modified capacities. However, I am influenced by the fact that given the nature of his injury, it affects every activity he performs in his waking hours. Accordingly, I reject counsel for the defendant’s submission on this point.
Conclusion
53 I accept that the plaintiff has suffered the above-mentioned consequences. Those consequences are supported by the evidence of the plaintiff and the medical evidence. I accept that he has continued working but has had to modify work activities to accommodate his right eye injury.
54 I am satisfied the plaintiff was involved in a transport accident which, to this plaintiff, resulted in him experiencing impaired vision of his right eye, which is of a physical nature. His vision is impaired constantly by the presence of floaters. His injury affects every activity he performs in his waking hours. I accept the medical evidence that the plaintiff’s vision is impaired long term and constant. There is no suggestion that there will be any improvement in his condition. He has the condition for the rest of his life. In fact, Professor O’Day suggested that the plaintiff may develop intraocular pressure, which will require further treatment.
55 For the foregoing reasons, I am satisfied that the plaintiff has established that the consequences to him of his impairment can reasonably be described as being “serious”. In my experience, the consequences to the plaintiff measure up well against other serious injury applications, where plaintiffs have been successful. In considering the consequences, I have not treated each consequence as equal but, rather, attributed appropriate weight to each consequence in light of the evidence.
56 I accept that the right eye injury has consequences to the plaintiff that, when judged by comparison with other cases in the range of possible impairments, can be fairly described, as at the date of hearing, as “at least very considerable”, and certainly “more than significant or marked”.[44]
[44] Humphries & Anor v Poljak (supra)
57 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for the injuries suffered in the transport accident on 8 March 2012.
58 I will hear the parties on costs.
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