Salis v Transport Accident Commission
[2017] VCC 620
•23 May 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-03249
| WILLIAM SALIS NEE RICHARDS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 May 2017 | |
DATE OF JUDGMENT: | 23 May 2017 | |
CASE MAY BE CITED AS: | Salis v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 620 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Transport accident – disfigurement – scarring over the left thigh – whether the disfigurement is “serious”
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited:Ingram v Ingram & Anor [1996] 2 VR 435; Richards v Wylie (2000) 1 VR 79; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Davidson v TAC [2015] VSCA 12; Willoughby v TAC (unreported 23 March 2017); Humphries v Poljak [1992] 2 VR 129; Baker v TAC [1997] I VR 662; TAC v Garcia [2015] VSCA 225.
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Fogarty | Slater & Gordon Ltd |
| For the Defendant | Mr J Valiotis | Solicitor to the Transport Accident Commission |
HER HONOUR:
Introduction
1 Mr Salis was injured in a transport accident on 4 August 2010, whilst riding his motorcycle in Hoddle Street, East Melbourne. An oncoming car intending to do a U-turn, failed to give way, and subsequently collided with Mr Salis’ motorcycle.
2 As a consequence of the accident, Mr Salis suffered, amongst other injuries, a de-gloving injury to his left thigh, for which he required surgery, and for which he has been left with permanent scarring.
3 In order for Mr Salis to be entitled to claim common law damages, the scarring on his left thigh must satisfy paragraph (b) of the definition of “serious injury” contained in s93(17) of the Transport Accident Act 1986. The TAC accepts that Mr Salis suffered the scarring injury in this accident, but disputes that such scarring satisfies the serious injury threshold.
4 Only Mr Salis was called to give evidence and he was cross-examined. At the commencement of his evidence, I was invited to view the scarring on Mr Salis’ left thigh. Also in evidence were numerous medical reports, and an affidavit from Mr Salis’ girlfriend, Ms Elizabeth Colliver. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of evidence and reports which I consider necessary to give context to and explain the conclusions reached in this judgment.
The transport accident
5 On 4 August 2010, Mr Salis was riding in Hoddle Street, East Melbourne, when an oncoming car collided with his motorcycle. He was subsequently taken by ambulance to the Alfred Hospital, where he underwent x-rays to his right elbow, left ankle and right patellar. Each of the x-rays were reported as normal. Mr Salis was diagnosed as suffering a de-gloving injury to the left thigh, right elbow tenderness, left ankle bruising and right patellar bruising and tenderness.
6 On 5 August 2010, Mr Salis underwent surgery to his left thigh, during which the trauma unit at the Alfred Hospital “debrided and repaired the soft tissue deficit”.
7 Mr Salis remained in the Alfred Hospital overnight, where his postoperative progress was noted as satisfactory. He commenced physiotherapy and occupational therapy before being discharged home on 6 August 2010.
8 Following his discharge, Mr Salis attended the Alfred Hospital plastic surgery outpatient clinic on four separate occasions; 11 August 2010, 18 August 2010, 25 August 2010 and 1 September 2010. At his last appointment on 1 September 2010, it was noted that the wound to his left thigh was healing slowly with no signs of infection. Mr Salis was referred for physiotherapy treatment for his left ankle and was to continue with regular dressings at home.
9 On 9 August 2010, 16 August 2010 and 18 August 2010, Mr Salis consulted various general practitioners at the Craigrossie Clinic, at which time he was treated with dressing changes and oral analgesic medication.
10 In May 2012, Mr Salis commenced physiotherapy treatment with physiotherapist, Joshua Neeft. Mr Neeft took a history that Mr Salis had sustained a significant laceration to his left thigh, for which he had received surgical treatment. On examination, he noted that Mr Salis “demonstrated signs and symptoms consistent with hamstring muscle group spasm and sciatic nerve irritation secondary to lumbar spine and pelvic dysfunction resulting from altered spinal, pelvic and lower limb biomechanics”.
11 In December 2012, Mr Salis commenced psychological treatment with psychologist, with Ms Jennifer Tremewen, after experiencing auditory hallucinations. Ms Tremewen obtained a history that Mr Salis was frustrated at not being able to do the things he previously enjoyed following the transport accident. In her report dated 29 September 2014, however, there is no reference to Mr Salis’ scarring.
Medico-legal reports
12 Mr Salis’ solicitors arranged for Mr Salis to be examined by plastic and hand surgeon, Mr Murray Stapleton in October 2014, and February 2017. In his first report dated 29 October 2014, Mr Stapleton noted that Mr Salis had a scar on his left thigh extending for 17 centimetres across the thigh, with a vertical component extending for 7 centimetres upwards. Mr Stapleton described the scar as “quite depressed and sensitive” and noted that it was “quite rough”.
13 Mr Stapleton noted that Mr Salis was a keen surfer and that he now insists on wearing a wetsuit in order to protect the tenderness in the scar. It was also noted that Mr Salis complained of “a tight constricting feeling” in his scar when he attempted to kneel, which had not improved.
14 In his latest report dated 14 February 2017, Mr Stapleton noted that Mr Salis’ scar was “stretched across the front of his thigh” and that “the scar has reached maximum medical improvement”. In addition, Mr Stapleton considered that all of Mr Salis’ activities, including his employment, and his domestic and social activities were affected by the tenderness of the scar. As Mr Salis did not provide oral evidence to support such a finding, I gain little assistance from Mr Stapleton’s comment.
15 Mr Salis’ solicitors also arranged for Mr Salis to be examined by orthopaedic surgeon, Mr Miller, on 10 June 2015. In his report dated 15 June 2015, it is clear that Mr Miller was primarily interested in the orthopaedic injuries sustained by the plaintiff, and not the scarring. However, on examination, Mr Miller noted:
“Examination of the left thigh revealed Grade 1 quadriceps wasting measured at 1.5cm. There was a long T-shaped scar on the distal anterior aspect of the thigh. The scar was tender.”
16 Mr Miller also noted that Mr Salis “expressed concern about the scarring on his thigh.”
17 On 6 February 2017, Ms Salis was re-examined by Mr Miller. In his report dated 12 February 2017, Mr Miller again noted “a large T-shaped scar on the anterior aspect of the distal thigh”.
18 The solicitors for the TAC arranged for Mr Salis to be examined by neurologist, Dr Roberts, on 28 May 2015. Dr Roberts noted that Mr Salis was primarily concerned with the scarring across the lower part of the anterior aspect of his thigh, as well as the sensory loss, which particularly affected the anterior aspect of the lower part of the thigh. On examination, Dr Roberts noted scarring in the lower third of the left thigh and also that “there was sensory deficit over the lower thigh anteriorly just encroaching on the medial and lateral aspects”.
19 The solicitors for the TAC also arranged for Mr Salis to be examined by psychiatrist, Dr Serry, on 23 March 2015. Dr Serry diagnosed a partially resolved chronic Adjustment Disorder with disturbances of emotion and conduct; the conduct component relating to the development of substance abuse and the emotional component reflecting features of both anxiety and depression. I note that Dr Serry’s report did not refer to any psychological upset which may be attributable to Mr Salis’ scar.
Mr Salis’ evidence
20 At the commencement of his evidence, I was able to observe the scarring to Mr Salis’ left thigh at close range. I observed two scars, both of which I found to be significantly more obvious and unsightly than was depicted in the copy photographs contained in Mr Stapleton’s reports. Where the two scars join, there is an unsightly stretching of the skin. Whilst it was not a keloid scar, I considered it to be a nasty looking area in the middle of the two scars.
21 Mr Salis tendered two affidavits in support of his application, sworn on 27 January 2016 and 21 March 2017. He also gave oral evidence. In summary, he described the consequences of the scarring as follows:
· He has been left with a scar on his left leg that extends 17 centimetres across and 7 centimetres up the front of his left thigh, over his knee;
· The scar is depressed and tender;
· The scar feels tight and uncomfortable when he attempts to kneel;
· The scar is sensitive to sunlight and it tans differently to the rest of his skin;
· He has no feeling over the front of his thigh in the vicinity of the scar and has been told it will likely be permanent;
· He hates his scar. He finds it ugly, and its presence makes him self-conscious;
· He avoids wearing clothes in public that expose the scar, particularly as he hates being asked, and having to then explain how it came about. He wears longer shorts that cover the scar;
· He now always wears a wetsuit whilst surfing to cover and provide support to the scar, whilst prior to the accident, he only wore a wetsuit in the winter months in Victoria;
· He very rarely uncovers the scar no matter how hot the weather gets.
22 I considered Mr Salis to be a creditworthy and reliable witness and I have no hesitation in accepting his evidence in its entirety.
23 Mr Salis’ partner, Ms Elizabeth Colliver, also provided an affidavit in support of Mr Salis’ claim. She stated that Mr Salis finds the scar sensitive to physical contact, such that it then interferes with their physical relationship. Ms Colliver avoids putting her hand on his left knee, as Mr Salis has complained to her that it creates an uncomfortable sensation. She is always conscious of the scar when they are being intimate. Ms Colliver confirmed that when Mr Salis now wears shorts, he wears a style that sits below knee level.
Is Mr Salis’ scar a permanent serious disfigurement?
24 It was accepted that Mr Salis’ scar is permanent. In such circumstances, the issue in dispute is whether or not the scar can be fairly described as serious.
25 In assessing whether the scarring satisfies the statutory threshold, I must, in accordance with the principles enunciated in Humphries v Poljak,[1] be satisfied that the consequences to Mr Salis can be described as at least, “very considerable”.
[1]Humphries v Poljak [1992] 2 VR 129
26 As was noted by Callaway JA in Ingram v Ingram,[2] a claim under sub-paragraph (b) should not be assessed in isolation, and the disfigurement must bear comparison with such injuries as a serious long term physical impairment, a severe psychiatric condition or the loss of an unborn child.[3]
[2][1996] 2 VR 435
[3]Ibid at 438
27 In Baker v Transport Accident Commission,[4] the Court of Appeal stated that in assessing such a claim, regard should be had to the number of scars, their location, size and the degree of obviousness.[5]
[4][1997] I VR 662
[5]Ibid at 664-665
28 The most recent Court of Appeal decision to consider a claim for serious disfigurement was Transport Accident Commission v Garcia.[6] In that case, the plaintiff sustained a 15 centimetre scar down the front of his left upper arm. In a joint judgment, the Court approved the relevance of Humphries, and the earlier authorities of Ingram and Baker. It stated that, consistent with the decision in Richards v Wylie,[7] the court can have regard to a plaintiff’s mental response to the scarring.[8]
[6][2015] VSCA 225
[7](2000) 1 VR 79
[8][2015] VSCA 225 at [27]
29 In Garcia, the Court of Appeal noted that the trial judge had the benefit of inspecting the scar, which he found to be large, unsightly and in a prominent position. It was further noted that he then combined those facts with the consequences about which the plaintiff had given evidence. The Court of Appeal dismissed the appeal, on the basis the trial judge had not made any specific error in reasoning, such that it did not consider the decision to be plainly wrong.
30 Mr Valiotis also referred me to a recent decision of this Court in Willoughby v TAC.[9] In that case, the plaintiff was a 42 year old man, who sought a serious injury certificate under paragraph (a) in respect of an impairment to his left upper limb, and under paragraph (b) for a scar over his left shin. His Honour Judge Misso dismissed the application, as he was not satisfied the disfigurement was serious. In his judgment, I note that Judge Misso described the scarring as obvious when observed at close range, but did not describe it as ugly or unsightly.
[9]Unreported judgment of 23 March 2017
31 When I observed Mr Salis’ scar, I considered it to be both ugly and unsightly. It is spread across a significant part of his lower thigh. It is plainly obvious.
32 I am satisfied Mr Salis is self-conscious of the scar, and that he too finds it “ugly”. I accept that Mr Salis hates the scar, and that he hates being asked about it. I am satisfied that he wears long shorts in an attempt to hide it from others.
33 I also accept that the scar causes him discomfort when he kneels.
34 I accept that Mr Salis now wears a wetsuit whenever he surfs, so as to provide protection and support to his scar.
35 In considering the consequences to Mr Salis, I have had regard to his predicted life expectancy, as it is relevant to determine the period in which he will suffer these consequences.[10] Mr Salis is relatively young . He was 24 years of age at the time of the accident, and is currently 31 years of age. He has a predicted life expectancy of approximately another 50 years, during which time he will have to live with this scar.
[10]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1, [17]; [2010] VSCA 69; Davidson v TAC [2015] VSCA 12, [50]
Conclusion
36 In conclusion, I am satisfied that the scarring suffered by the plaintiff can be fairly described as a serious disfigurement.
37 The plaintiff’s application for leave to commence a claim for common law damages therefore succeeds. I shall make the consequent orders.
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