Sartori v TAC
[2013] VCC 1296
•29 July 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION SERIOUS INJURY | Revised Not Restricted Suitable for Publication |
Case No. CI-12-01164
| NADIA SARTORI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 July 2013 | |
DATE OF JUDGMENT: | 29 July 2013 | |
CASE MAY BE CITED AS: | Sartori v TAC | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1296 | |
REASONS FOR JUDGMENT
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Subject : Transport Accident Act 1986 (Vic) – Section 93, paragraphs (a), (b) and (c) of the definition of serious injury – Impairment of neck – Scarring – Mental disorder
Catchwords:
Legislation Cited:
Cases Cited: Humphries & Anor v Poljak [1992] VR 129 – Richards v Wylie (2000) 1 VR 79 – Mobilio v Balliotis [1998] 3 VR 833 – Dressing v Porter & Anor [2006] VSCA 215 – Baker v Transport Accident Commission & Anor [1997] 1 VR 662.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V.A. Morfuni S.C. with Mr G. Worth | Norwicki Carbone |
| For the Defendant | Ms M. Britbart | Wisewould Mahony |
HER HONOUR:
Introduction
The plaintiff is 28 year old woman, who has a Bachelor of Applied Science in Disability from RMIT University. She has worked as a disability support worker since 2008. On 10 November 2009, she was riding her motor bike on a suburban road in Melbourne. As she was riding on this road, a car came out of a side street from her left side without warning and struck her on her left side; the main impact from the car being on her left leg, knee and thigh.
The plaintiff was thrown off the motor bike onto the roadway, landing face downwards, and then tumbling and being conscious of a twisting, jolting strain to the whole of her neck and spine as she rolled down the road. She estimates that she was travelling at about 60 kilometres and that the car was probably travelling at about 30 kilometres.
The plaintiff remembered being thrown up into the air for some distance before hitting the ground. As she lay on the road she was immediately conscious of generalised pain throughout her trunk and spine, extending from the head to the pelvis, and of pain in the legs as well.[1]
[1] Medical Report by Dr Kevin King, 11 April 2013, p. 3.
In this application, the plaintiff seeks leave pursuant to s 93(4)(d) of the Transport Accident Act 1986 (Vic) (“the Act”) to bring proceedings to recover damages for injuries suffered by her as a result this transport accident (“the accident”) on 10 November 2009.
Section 93(6) of the Act provides that the court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a “serious injury”. Pursuant to s. 93(17) of the Act, the plaintiff relies on the following definitions of serious injury:
a) a “serious long-term impairment or loss of a body function” - being with respect to the function of the neck;
b) a “permanent serious disfigurement” – this disfigurement being scarring to her left leg and ankle;
and
c) “severe long-term mental or severe long-term behavioural disturbance or disorder” – being depression, anxiety and a post-traumatic stress injury.
The case of Richards v Wylie (2000) 1 VR 79 establishes that the serious injury defined by subsection (a) can have its seriousness measured, in part, by a mental response to a physical impairment. However, a mental disorder cannot of itself constitute, or be the producer of, the impairment of a body function.
In forming the judgment as to whether the consequences of an injury are serious, the question to be asked is can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least very considerable and more than significant or marked.[2]
[2] see Humphries & Anor v Poljak [1992] VR 129, at 140-1.
With respect to the claimed psychiatric impairment pursuant to subsection (c), the relevant authority is the judgment of the Court of Appeal in Mobilio v Balliotis, where Brooking JA stated:
“Without suggestion the use of any particular adjective to mark the distinction, I would say that severe is used in the definition as a stronger word than serious.”[3]
[3] [1998] 3 VR 833, at p. 846.
The plaintiff relied on three affidavits, dated 21 November 2011 (“the first affidavit”), 20 May 2013 (“the second affidavit”) and 27 May 2013 (“the third affidavit”). In addition, the plaintiff gave viva voce evidence and was cross-examined.
The plaintiff also relied on three affidavits in support of her application. These were from Luke Wilby, dated 13 May 2013; Juliette Elizabeth Pongas, dated 14 May 2013; and Alicia Louise Krywyn, dated 25 June 2013.
As is usual in these cases, both parties relied on medical reports and other material which was tendered into evidence. I have read and considered all the material contained in the respective court books to assist me in reaching a decision in this case.
The aftermath of the accident and treatment
After being hit by the car, the plaintiff was conscious of receiving the following injuries:
· a blow to her helmeted head;
· a jerking, jolting strain on her head, neck and upper thoracic spine;
· generalised neck and thoracic pain;
· a jerking, jolting strain on the lower back;
· generalised lumbosacral back pain;
· a direct blow to the left lower limb, particularly of the knee and upper shin;
· a large laceration over the front of the upper part of the left shin; and
· over the next 24 hours, generalised severe bruising all over her trunk and both lower limbs.[4]
[4] Medical Report by Dr Kevin King, 11 April 2013, p. 3.
The plaintiff was taken by ambulance to the Alfred Hospital and kept in Emergency from 6pm to 3am in the morning. While in hospital, the wounds on her left leg were sutured. The next day she was conscious of pain all over, particularly throughout her spine and neck, as well as pain associated with headaches and a very sore left shin.
The plaintiff’s mother took off six weeks to look after her intermittently at home and she was off work for six weeks from her job as a social worker. She came under the care of local doctor at the Coburg Family Medical Centre. She has continued to attend that clinic for treatment for her accident-related injuries.
After the accident, the plaintiff attended the Coburg Family Medical Centre (CFMC) where she saw Dr Mark Attalla, Dr Uthayakumari Kanapathipillai and Dr Satya Inumala, and was prescribed a regular script for Tramadol.
In or about 2010, the plaintiff attended Dr Harvey Abbott, a psychologist at Link Psychology. In about December 2010, she started attending for physiotherapy at Blatt Focus Physiotherapy, where Mr Ryan Sweeney is her treating physiotherapist.
While the plaintiff remains employed with Merri Community Health as an Outreach Worker, she claims that she continues to experience pain and difficulty at work by reason of her transport accident injuries. In addition, she claims that she remains restricted in her capacity to perform the activities of daily living and her social, recreational and domestic activities.
Medical opinion regarding the plaintiff’s neck injury
i) Dr Satya Inumala
Dr Inumala provided the plaintiff’s solicitors with an undated medical report, in which the diagnosis and prognosis of the plaintiff’s injuries was back pain and associated sciatic pain and muscle pain, ongoing since she was involved in the accident in 2009. The report confirmed that the plaintiff had a regular script for Tramadol.
ii) Mr Ryan Sweeney
Mr Ryan Sweeney has been the plaintiff’s treating physiotherapist since 3 December 2010, when she first presented to the clinic with a history of headaches and pain in her neck and upper back.
In his report of 24 May 2013, Mr Sweeny’s diagnosis and prognosis of the plaintiff’s injuries was that she was suffering from chronic neck pain and cervicogenic headaches, both of which had developed due to cervical and postural dysfunction following the motorbike accident. Considering the extensive rehabilitation she had undertaken, it was highly unlikely she would make a full recovery.
As at the time of Mr Sweeney’s report, the plaintiff had relatively constant cervical and thoracic pain but it varied, sometimes up to 8/10 on the visual analogue scale. Prior to the accident, the plaintiff had no history of cervical or thoracic pain.
The plaintiff continued to have intermittent headaches which had improved overall but were still present either during the day, at night, or sometimes both. The plaintiff’s migraines occurred approximately once a week and, while intensely painful, they were not as bad as prior to commencing physiotherapy. Prior to the accident, the plaintiff had no history of migraines or headaches.
The plaintiff was undertaking a light gym program twice a week for 20 minutes. She was taking Panadol, as required, during the day and Tramadol most nights and occasionally during the day if the pain got worse.
Mr Sweeney also reported that the plaintiff had difficulty working at full capacity. She had been working with pain since the accident, and although her pain levels had improved, she still required medication to help her control her pain and occasionally had to take days off work, approximately once every fortnight.
iii) Mr Kevin King
Mr Kevin King, an orthopaedic surgeon, prepared a report to the plaintiff’s solicitors on 11 April 2013. With respect to the plaintiff’s neck, Mr King’s findings on examination were of a “mild limitation of neck movements by mild spasm and discomfort, approximately three quarters of the normal range of all movements.”
Mr King described the plaintiff as a quite detailed, clear and satisfactory historian. In his opinion, it was a reasonable assumption from the plaintiff’s very clear description of the details of the accident that:
· The whole of her cervical, thoracic and lumbar spine was exposed to a significant degree of generalised jerking, jolted trauma of a type that would be likely to have caused at least some damage to the cervical and to the thoracolumbar discs and associated ligamentous structures.
· The generalised trauma more than adequately explained the immediate onset of generalised spinal pain and headache at the time, with generalised soreness in the legs.
· She had also sustained some damage to a small central nerve in the front of her left shin.
· The injury to her cervical, thoracic and lumbar spine adequately explained her residual intermittent nagging symptoms in the neck and back region.
· The cervical pain was her main concern and represented a mild but definite impairment of cervothoracic spinal function to a previous fit young adult (with a mild impairment on her capacity to play sport).
· She appeared to have stabilised at this level.
· She should be able to continue with her job as a social worker.
iv) Mr Peter Kudelka
Mr Peter Kudelka, who is also an orthopaedic surgeon, diagnosed soft tissues injuries to the plaintiff’s neck, shoulders and dorsal spine generally and a deep laceration to the left shin and a lesser laceration to the dorsum of the left foot. [5]
[5] Medical Reports by Mr Peter Kudelka, 7 March 2012 and 12 April 2011.
Orthopedically, Mr Kudelka found no clinical evidence of any significant abnormality of the spine or lower limb and he advised a self-managed exercise program for the plaintiff to maintain mobility and muscular strength in her neck, shoulder and back. The prognosis was that her symptoms in the spine should respond to such conservative palliative treatment.
Mr Kudelk’s opinion, from the orthopaedic point of view, was that there was no basis for any significant restriction in the plaintiff’s occupational and recreational activities. There was also no restriction for future earning capacity in her chosen employment as a social worker.
In his opinion:
“The main problem in her presentation appears to be psychological, and relates to concern about left leg scarring, apart from the fact that she has had to give up her recreations of motorcycle riding and running, although there is no orthopaedic reason why she could not resume running”.[6]
v) Mr Kenneth Myers
[6] Medical Report by Mr Peter Kudelka, 12 Aril 2011, p. 3.
In his report to the plaintiff’s solicitors on 27 June 2011, Mr Kenneth Myers a Consultant General Surgeon, diagnosed soft tissue injuries of the left leg foot and low back. In his opinion, the plaintiff’s condition had stabilised although there could be ongoing improvement of the pain in the back. The plaintiff’s social, domestic and recreational activities would be restricted due both to physical and secondary psychiatric disturbance. She should be able to continue to work as a social worker without restriction.
vi) Mr Roy Carey
The defendant relied on the medico legal reports of Mr Roy Carey, dated 11 September 2012 and 14 May 2013.
In his report of 11 September 2012, with respect to the plaintiff’s neck, Mr Carey reported that the plaintiff told him that:
· She gets a dull pain in the posterior neck with sharp pain, with movements the neck feels a tightness and stiffness.
· She felt that the pain extended to the interscapular region of the back, on the right or left, but there was nothing below the level of the chest wall.
· She sleeps well with Tramadol but wakes with extreme neck and back stiffness and soreness in the morning and has a really hot shower to free things up. The hot shower, however, produces a feeling of swelling in the left leg below the knee.
· The pain became more severe and disabling in winter or cold weather.
Mr Carey found on examination that the neck showed no deformity. The plaintiff had slight restriction in flexion, extension, lateral flexions and rotations, all because of pain felt over the back and sides of the neck. Even though he was not able to palpate any structural abnormalities the plaintiff was extremely uncomfortable to very light pressure at the base of the cervical spine and all the way down the thoracic spine to the bra strap.
In Mr Carey’s opinion, the plaintiff’s injuries were suffered as a result of the accident. However, he considered that he had had insufficient information to make any diagnosis as to the cause of her cervical and thoracic upper back area pain other than to say that she had a chronic cervical and upper back pain in the absence of radiculopathy or myelopathy.[7]
[7] Medical Report by Mr Roy Carey, 11 September 2012, p. 12.
In his report of 14 May 2013, Mr Carey said that the plaintiff had exactly the same symptoms in her neck and both shoulder blades area, as described in his earlier report. The pain was constant but varied in intensity and site. It still disturbed her sleep. She was quite adamant that she had no low back pain (other than discomfort during periods) as a result of the accident.
Nature of the plaintiff’s organic injury
The case for the plaintiff was that I should accept that as a result of the accident she suffered a musculoligamentous injury to her cervical spine. While for the defendant, it was submitted, in essence, that there was insufficient evidence for a finding to be made with respect to the cause of the plaintiff’s neck pain.
The defendant relied on the fact that the x-ray of the plaintiff’s neck taken on 19 April 2010 was basically normal and there had been no radiology performed since then. In addition on the fact that:
· There had been no recommendation from any one treating the plaintiff for further investigations of the underlying nature of the injury, nor has there been any referral to a specialist.
· Dr Inumala’s report contained no mention of the plaintiff’s neck but diagnosed back pain and associated sciatica pain and muscle pain.
· There were repeated references in the CFMC notes of back pain
· The plaintiff had denied having back issues since the accident.[8]
[8] Transcript p. 17.
While the plaintiff’s first affidavit refers to her as suffering from both back pain and pain and restriction in her neck since the accident, the plaintiff denied having back pain after the accident.[9] Her denial is also inconsistent with the CFMC notes which reveal that she was given prescriptions for pain relief with respect to both her back and neck after the accident. In fact, it is fair to say that at least initially there were more references to back pain than to neck pain.
[9] At paras 25 and 26.
However, the notes from the ambulance reveal that immediately after the accident, a cervical collar was applied,[10] which suggests that the ambulance officers were concerned about a possible injury to the plaintiffs. In addition while Sweeney ‘s notes and reports refer to pain and restriction in both her back and neck it is apparent that the neck issue became predominant. This is probably due in part to the development of the headaches and migraines that the plaintiff now suffers from.
[10] Ambulance Victoria, Patient Care Report for Nadia Sartori, 10 November 2009, p. 3.
Therefore while the plaintiff’s denial of suffering back pain after the accident is not to her credit I accept that that the majority of Mr Sweeny’s treatment has been for her neck pain and that this remains a major issue for her .In addition I accept that while the plaintiff’s hips have been sore the pain is not as strong or frequent as with her neck.[11]
[11] Transcript p. 21.
In relation to the plaintiff’s hip and back pain, I also note that in his report of 1 May 2013, Mr Sedal referred to the plaintiff’s walking gait not being normal due to the injury to her left foot. I accept his opinion that this abnormal pattern could place additional strain on the joints of the leg and the back even though the person was walking normal distances. I consider that this could provide an explanation for the plaintiff’s back and hip pain.
After taking into account all the evidence in this case and, in particular, the following evidence:
· The General Practitioners’ clinic notes;
· The plaintiff’s affidavits and evidence;
· The TAC Neck Disability Index completed every 6 months by the plaintiff;
· The medical reports of Mr Kudelka, Mr King and Mr Sweeney;
· The letters by the treating physiotherapist, Mr Sweeney, to the General Practitioners at Coburg Family Medical Centre confirming that neck pain headaches and stiffness and tightness of the cervical spine are being treated.
· the description of the accident given by the plaintiff to Dr King.[12]
[12] See para 1, 2 and 3 of this judgment.
I am satisfied that the plaintiff suffered a musculloligamentous injury to her cervical spine and that this injury is the cause of her neck pain. Given the period of time since the plaintiff suffered the injury, I am also of the opinion that the injury could be described as long term.
Consequences of the injury to the plaintiff’s neck
It is then necessary to consider the consequences of the neck injury to the plaintiff. In determining the consequences, I need to look at the position of the plaintiff with respect to her neck injury before the accident and after it.
Despite the plaintiff’s failure to admit to suffering from back pain after the accident, I am satisfied that she gave an honest account of the restrictions placed on her life after the accident. I am satisfied that while her back and hip issues in all probability contributed to her present restrictions, the major and predominant cause is her neck pain.
The plaintiff’s physical activities
It is apparent from the plaintiff’s first affidavit that prior to the accident, on 10 November 2009, the plaintiff was a young lady who enjoyed keeping fit and took a lot of pride in her appearance. To that end, I accept that her physical activities included:
· running four times a week; about 8 to 10 kilometres on each occasion;
· bike riding; about once a week for approximately 30 kilometres;
· riding her motorcycle every day for transportation and taking it on recreational rides;
· kickboxing on a weekly basis; and
· exercises, including push-ups, sit-ups, cardio building exercises and stretches.[13]
[13] Affidavit of Nadia Sartori, sworn 21 November 2011, p. 2.
The plaintiff deposed that this training made her agile and strong and she gave evidence that back in those days she had a six pack. Keeping fit and her body image was “a massive thing for her.”[14]
[14] Transcript p. 54.
In contrast, after the accident the plaintiff is now generally limited to simple walking for exercise as she finds running difficult and painful and she is no longer able to run the distances she could before the accident. On a couple of occasions, running has triggered a migraine.[15]
[15] Transcript pp. 23 and 55.
The plaintiff cannot ride her bicycle for as long or as often as it aggravates the pain in her neck and back. Although she purchased another motorcycle after the accident, she only kept it for three months because she was finding it too difficult and painful to ride. In addition, she was frightened she would be in another accident.
The plaintiff tried kick boxing after the accident but had to stop. Her previous exercises such as push ups and sit ups place too much stain on her neck and back. In addition, she has difficulty in performing household tasks.
Although she has returned to work full-time, she has been struggling with her duties as a result of her ongoing symptoms. She takes time off when the pain gets particularly severe.
When the plaintiff was cross-examined about these claimed consequences, she agreed that she still went to the gym twice a week. However, she said that this was a gym at work for people with mental health and physical health barriers. She did light weights and about 20 minutes on the stepper.[16]
[16] Transcript, p. 29.
While the plaintiff agreed that she could have told Dr Inumala on 6 March 2013 that she wanted to exercise but that she felt her hip pain did not allow her to,[17] this does not alter my opinion that her main problem and the cause of the majority of her physical restrictions relate to the issues with her neck.
[17] Transcript, p. 127.
Pain medication and treatment
The plaintiff often experiences strong pain in her upper back, neck and shoulder. The pain is constant but generally increases with activities such as prolonged standing and walking. Sitting tends to aggravate the ongoing symptoms in her back and neck. She has difficulty sleeping. She experiences frequent headaches or migraines, weekly sometimes twice a week.[18]
[18] Transcript, p. 55.
The plaintiff continues to attend a physiotherapist fortnightly. She continues to be prescribed Tramadol and takes one to two tablets most nights. On bad days, she takes four. In addition to the physiotherapy to relieve her neck pain, the plaintiff receives regular massages twice a month. She also uses a heat pack, applies tiger balm and regularly uses a hand held massage tool to massage her neck.
It was submitted for the defendant that I should take into account the fact that there had been no specialist referral as an indication of the level of the pain suffered by the plaintiff and of the interference caused by pain to her day-to-day life.
However, while it is true that the plaintiff has not been referred to a specialist, the notes from the CFMC reveal attendances her at the clinic on eight occasions in 2009, nine in 2010, 16 in 2011, 15 in 2012 and 13 attendances in 2013 up to Thursday May 23. They reveal that over this period, the plaintiff continued to receive prescriptions for Tramadol and that she often complained of neck and back pain.[19]
[19]Coburg Family Medical Centre, Progress Notes, 23 May 2013, pp. 1-3.
The plaintiff’s complaints of continuing pain in particular in her neck are also supported by Mr Sweeny’s letters to the CFMC and his reports as to treatment.
The contrast in the plaintiff’s very active life prior to the accident, compared to her life after the accident is supported by the affidavits from Luke Wilby and Juliette Elizabeth Pongas. I accept the contents of their affidavits as they were not challenged.
Mr Wilby deposed that prior to the accident he saw the plaintiff, on average, twice a week. They would often go for motorcycle rides with their mutual friends. The plaintiff was a very fit and healthy person. She was in good physical condition and took pride in her appearance. He was aware that she often went to the gym, did kickboxing and went jogging or riding on her pushbike.
Mr Wilby describes observing a significant change in the plaintiff after the accident. The plaintiff was no longer the happy person she was before the accident but was constantly anxious, stressed, frustrated and angry. She tended to avoid socialising and had given up her passion for motorcycle riding. Mr Wilby had observed her in constant physical pain and discomfort. She complained regularly about her back, hip and leg.[20]
[20] Affidavit of Luke Wilby, sworn 17 May 2013, at para 5.
Ms Pongas deposed that she had known the plaintiff for 25 years. She described the plaintiff prior to the accident as being a very fit, healthy and physically active person. She would often go running, bike riding or to the gym. Ms Pongas was also aware that the plaintiff enjoyed kick boxing and riding her motorcycle.
While Mr Wilby did not refer to the plaintiff complaining about her neck, Ms Pongas did. She described the plaintiff as no longer being a fit, healthy and active person. She regularly complained of her neck, back and leg pain. Ms Pongas had also observed her having difficulties sitting or standing for an extended period of time due to her back and neck pain. Ms Pongas was aware that the plaintiff now suffered from headaches and migraines, and that she was depressed, anxious, irritable and angry. In her opinion, the accident had significantly affected the plaintiff and she now had difficulty performing social, recreational and domestic activities. [21]
[21] Affidavit of Juliette Elizabeth Pongas, sworn 14 May 2013, at para 15.
There was also an affidavit from Alicia Louise Krywyn, dated 27 June 2013, who was a work colleague of the plaintiff. Although she had not known the plaintiff prior to the accident, she had known the plaintiff for about eight months. She said that the plaintiff had complained to her about her neck, back and hip pain. She had observed the plaintiff in obvious pain and discomfort when she was at work in the office. From her observations, the plaintiff was in pain and discomfort on most days at work. She was easily stressed and often excessively anxious.
Finding in relation to the consequences of neck injury
While since the accident the plaintiff has had problems in relation to her back and hip at various times, I accept that they have not been as frequent or as painful as with respect to her neck. Prior to the collision, the plaintiff was leading a very active life involving a number of physical activities but she can no longer do these activities. In particular the two activities she most clearly valued and loved which were motorbike riding and kick boxing. In this case there was no surveillance film to contradict the plaintiff’s description of her level of pain and restrictions.
In Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, Ashley JA and Beach AJA, at paragraph 43, discussed the circumstances of a young plaintiff who faced in the foreseeable future a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
I accept that a major consequence for this young woman is the physical limitations placed on her due to the neck injury received in the accident. While these physical limitations may well have had a lot less impact on someone who led a more sedentary life this young lady was not a couch potatoe. While she is still able to work the plaintiff has an understanding employer and can call in sick or go home early because of pain.
In so far as it is permitted by the decision in, Richards v Wylie I have also taken into account the plaintiff’s emotional response to the organic injury. I accept that she is frustrated and angry about her pain and restrictions and the effect this had on her life in general.
I am satisfied that the consequences of the plaintiff’s injury, when judged by comparison with other cases in the range of possible impairments, can be fairly described as being “more than significant or marked and as being at least very considerable.” The plaintiff’s condition has stabilised and will remain this way for the foreseeable future.
Accordingly, pursuant to s 93 of the Act, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages in respect of the neck injury suffered by her in the transport accident .
The scarring to the plaintiff’s left leg and ankle
As a result of the transport accident, the plaintiff suffered two lacerations on the front of her left leg. The first was a deep laceration on the front of the left leg, the other was a laceration on the back of the left foot. Both were closed at the Alfred Hospital under local anaesthetic.
It is not in contention that as a result of these injuries the plaintiff was left with scarring to both the front of left leg and the back of the left foot. The issue is whether this scarring amounts to a “permanent serious disfigurement”.
In summary in her affidavit’s the plaintiff described the consequences to her of the scars as follows:
· the scars and the areas around them had a tendency to swell in hot weather;
· she felt that the scars were unsightly and was worried that people would look at them and think they were ugly;
· She had lost self-esteem and confidence and found it difficult to speak to men that she was interested in;
· She wears clothes to cover the scars as she no longer felt confident letting people see her body;
· When she went to the beach she tried to wear clothing that hid the scars.
· she was self-conscious about dressing up and dancing.
Juliette Pongas supported the plaintiff’s claim that she was self conscious about her scars.[22] There was no suggestion that prior to suffering the injuries which resulted in the scarring the plaintiff had any of these issues.
[22] Affidavit of Juliette Elizabeth Pongas, sworn 14 May 2013, at para 13.
Medical opinion regarding the plaintiff’s scars
i) Mr Murray Stapleton
With respect to the scars, the plaintiff relied on two reports from a plastic surgeon, Mr Murray Stapleton, dated 6 February 2013 and 28 April 2011. In his report of 28 April 2011, Mr Stapleton described the scars follows:
“There is a scar extending for 8 cm running down the front of her left leg and across the back of her left foot she has a 3x1 cm scar. Both scars are reddened and both are clearly obvious when viewed across the room.”[23]
[23] Medical Report by Mr Murray Stapleton, 28 April 2011, p. 3.
Mr Stapleton reported that the plaintiff had told him that she hated the scars and that she had previously tried to do a great deal to improve the appearance of her body. In particular her legs, having liposuction on both thighs when she was aged 19.
In his report of 6 February 2013, Dr Stapleton reported that the plaintiff told him that:
· She had once enjoyed kickboxing, but this was no longer within her capacity due to the scar on the front of her left leg.
· She was careful in crowded places, that the scar on the front of her left leg was not bumped.
· She avoided any protruding piece of furniture in case that scar was bumped.
· With respect to the scar on her foot she could no longer wear tight leather shoes or heels.
· The scars were both tender
Mr Stapleton’s prognosis for the scars was that they had reached maximum medical improvement. The scars affected her social, domestic and recreational activities.
ii) Mr Kenneth Myers
The plaintiff also relied on Kenneth Myers opinion that she will be left with permanent scarring. In his report of 27 June 2011, he stated that:
“She is very conscious of her appearance and states that at the age of 18 she underwent liposuction of her thighs and is now considering having liposuction of her calves. She states that I put a lot of money into my appearance quoting the cost of liposuction of the thighs as approximately $10,000 she believes that her poor body image has now been markedly impaired because of the scar on her leg” [24]
iii) Dr Leslie Sedal
[24] Medical Report by Mr Kenneth Myers, 27 June 2011, p. 2.
Dr Leslie Sedal, a Consultant Neurologist, provided the plaintiff’s solicitors with three medico-legal reports, dated 1 May 2013, 26 March 2013 and 1 February 2012. In these reports, with respect to the plaintiff’s left leg and ankle, Dr Sedal noted that there was:
· Sensory lost and dysaesthesia in the distribution of the left lateral cutaneous nerve of the calf; and
· Left leg swelling;
Mr Sedal’s prognosis was that the sensory loss and dysaesthesia in the plaintiff’s left leg would be permanent. He thought that she would benefit from referral to a pain clinic.
iv) Mr Roy Carey
In his report to the defendant’s solicitors on 11 September 2012, Mr Carey noted that the plaintiff had scars evident over the upper anterior shin on the left and on the dorsal medial aspect of the left foot and small brown barely visible area on the posterolateral upper left calf. His measurements were similar to those of Dr Stapleton and he noted that there was an unpleasant dysesthesia to touch both scars.
Mr Carey reported that the plaintiff felt that she was coping much better with the effects of the scaring than when she was at the time of giving her affidavit. She told him that she felt now that it would not worry her so much for example exposing her leg when going to the beach and wearing a bathing costume.
However in his report of 14 May 2013, Mr Carey stated that:
“She won’t wear bathers or shorts if she goes to the beach it is loose trousers, and if she goes to the gymnasium she wears tights .She has cosmetic and indeed mechanical concerns with her left leg in any situation of intimacy”.[25]
[25] Medical Report by Mr Roy Carey, 14 May 2013, p. 2.
In his opinion, there was no doubt that cosmetic concerns with her scar still affected the plaintiff’s social and occupational functioning from simple lack of desire to wear bathers to the beach, shorts, et cetera, right through to fears that intimacy may be difficult or impossible for both cosmetic and mechanical reasons.
Submissions in relation to evidence relevant to scars
It was submitted for the plaintiff that in determining whether the scarring amounted to a serious injury, the Court could look at both the nature and permanence of the of the scarring and at the consequences to the plaintiff.
However, it was submitted for the defendant that the Court should not take the plaintiff’s reaction to the scarring into account when considering s 93(17)(b). In support of this submission, the defendant relied on Ingram v Ingram [1996] 2 VR 435, a case where the plaintiff had suffered abdominal scarring as a result of surgery following a car accident. In particular, the defendant relied on the judgement of Callaway JA, where His Honour said:
“I consider that there is much to be said for the view that the psychological dimension of an injury, or at least the part that can be described as mental or behavioural, is primarily to be considered by reference to para. (c) of the definition and it would be an unusual case where it was appropriate to lead evidence of a subjective response to the disfigurement.”[26]
[26] At 438.
However, I note that while Charles JA agreed with the conclusion of Callaway JA, that the appeal should be dismissed his reasoning differed in part and His Honour stated that:
“In determining whether the disfigurement brought about by scarring is “serious” for the purposes of s 93(17)(b) the tribunal must have proper regard to the consequences to the plaintiff of the disfigurement. In my view, the authorities for good reason dictate the conclusion that a determination whether a disfigurement amounts to “serious injury” requires consideration of the impact of such disfigurement upon the particular person.” [27]
[27] At 440.
His Honour also stated that:
In every case other than a clear case of serious injury a subjective element was plainly involved in the assessment.”[28]
[28] At 440.
Counsel for the defendant also referred the Court to the decision of the Court of Appeal in Baker v Transport Accident Commission & Anor [1997] 1 VR 662. In that case, the applicant suffered scarring to her torso and legs as a result of a motor accident.
Allowing the appeal, the Court held that:
“Even assuming that (as the respondents contended) in considering whether the disfigurement was serious the court was confined to the physical characteristics of the scars the age and possibly the sex of the applicant the disfigurement was a serious injury within the meaning of s 93(17) of the Act having regard to the number of scars their location their size and their degree of obviousness.”[29]
[29] At 664.
These two decisions by the Court of Appeal were made prior to their decision in Richards v Wylie (2000) 1 VR 79. In that case, the Court was dealing with the distinction between s 93(17)(a) which is concerned with the physical consequences of the injury and s 93(17)(c) which is concerned with behavioural or mental disturbances or disorders themselves.
While maintaining the distinction between the two subparagraphs the Court of Appeal accepted that the serious injury defined by subparagraph (a) of subsection (17) can have its seriousness measured, in part, by a mental response of a physical impairment. What it would not recognise, is that the mental disorder itself could itself constitute or be the producer of the impairment of the body function.[30]
[30] Per Winneke P at para 16.
In assessing the consequences associated with the scarring, I have taken into taken into account the plaintiff’s emotional reaction to her scarring to the extent permitted by this decision.
Finding
While I have no difficulty in finding that the scar to the plaintiff’s front left leg and left foot were caused by the accident, I am not satisfied that this disfigurement can be described as more than “significant” or “marked” and as being at least very considerable.
I viewed photographs of the plaintiff’s scars which were taken on 6/2/2013 and also had the opportunity to see them in the flesh during the hearing in July 2013. The scar on the left foot is a small one being only 3 x 1 cm. It appears to have faded considerably since the accident and it is not particularly obvious or unsightly.
With respect to the scar on the front of the plaintiff’s left leg it is longer and more noticeable being 8 cm in length. However, it also appears to have faded with time and while I accept that it amount to a permanent disfigurement I do not consider that it constitutes a “serious disfigurement” by comparison with the nature, type and extent of disfigurements which may occur in other cases.
In reaching my decision I have taken into account the medical reports referred to above and the claimed consequences of the scarring. While I accept the medical opinion that the scars have affected the plaintiff’s social and recreational pursuits and indeed her self esteem and self confidence it appears from her evidence that there has been an improvement not only in thee physical appearance of the scars but also in the affect they have on her.
100 When the plaintiff was cross examined, it was suggested to her that over the last year or years, she was less bothered by the scar on her leg. The plaintiff agreed that she was not as bothered by this scar. She agreed that it had faded since the photos were taken of the scar and that consequently it had become less noticeable.[31]
[31] Transcript, p. 48.
101 The plaintiff also agreed that she had possibly told Mr Carey in September 2012 that she was coping much better with the scar than she had been previously, and it would not really worry her so much wearing bathers at the beach.[32]
[32] Transcript, p. 47.
102 When it was suggested to the plaintiff that she was no longer put off going to the beach because of her leg scar, she said that when she went to the beach she tended to cover up anyway. She said, “I’m going to be honest. It’s not as bad as it was but it’s still there and I still get asked questions if anyone ever sees it, but I do try and hide it as much as I can.”[33]
[33] Transcript p. 48.
103 It is also relevant that the plaintiff’s scars have not affected her employment. In addition that, although the case for the plaintiff was that since the accident she had mainly worn pants, in cross-examination she agreed that she wore pants most of the time anyway before the accident.[34] Given all these circumstances, with respect to the plaintiffs claim pursuant to s 93(17)(b) of the Act, I do not propose to grant leave.
[34] Transcript p. 47.
Mental injury
104 The plaintiff’s case is that as a result of the accident she suffers from depression anxiety and Post-Traumatic Stress Disorder. In her first affidavit the plaintiff deposed that:
· She has a tendency to become irritable, frustrated and angry, more easily than she did before the accident.
· She has suffered a loss of concentration and memory.
· She has been experiencing feelings of depression.
· She misses being the fit and active person that she was before the accident and has suffered a loss of motivation and energy.
· She feels stressed and anxious.
· She experiences nightmares and flashbacks of the accident.
· She no longer feels confident about dressing up and dancing because of her scars.
· Her social life has been greatly reduced, she spends a lot of time at home
· While she has been overseas on three occasions, she was restricted in the amount she could do which reduced her enjoyment of the trip.
With respect to the above diagnosis, the plaintiff relies on the reports of Dr Abbott and Dr Nathan Serry, consultant psychiatrist
i) Dr Harvey Abbott
105 In his report, dated 19 May 2012, Dr Abbott said that the plaintiff was referred to him by Dr Kanapathipillai on the 11 November 2010 to get assistance with depression and post traumatic stress disorder. Dr Abbott had seen the plaintiff on 17 separate occasions and for the purposes of his report he paid particular attention to her “Interpersonal adjustment and health following the accident.”
106 Dr Abbott concluded that: the plaintiff’s mental state showed a number of clinically significant symptoms of psychological disorder, most pertinently anxiety, depression and problematic alcohol use. As she described significant symptoms of distress, including depression, anxiety, phobic anxiety and sleeping difficulties she qualified for a diagnosis of Post-Traumatic Stress Disorder .The extent of her depression and anxiety had a marked impact upon the quality of her life, as her personal and work life had been affected and contributed to her decision to seek psychological help.
ii) Dr Nathan Serry
107 Dr Serry saw the plaintiff for the purpose of a medical legal report on 3 October 2011. In his opinion, the plaintiff continued to experience the physical sequelae of the accident with ongoing pain and restrictions. She had also suffered a significant psychiatric reaction. She was frustrated, angry, anxious and depressed. She had been traumatised by the direct accident circumstances and her lifestyle appeared to be quite altered. Her prognosis should be considered mixed. She appeared to have reasonably sound premorbid adjustment, although she had struggled to come to terms with the direct impact of the accident.
108 In his report of 23 March 2013, Dr Serry diagnosed the plaintiff as suffering from Post-Traumatic Stress Disorder. In addition, with a chronic adjustment disorder with anxious and depressed mood with a possible alternative diagnosis of generalised anxiety disorder with secondary depression.
109 In his lifestyle evaluation, Dr Serry reported that the plaintiff’s lifestyle remains compromised in that:
· Her mobility has been affected, in part, by physical factors and due also to her avoidance of motorbike riding, and her anxiety in relation to car travel, particularly as a driver.
· Her personal relationships had changed, given her loss of confidence and a disinclination to socialise.
· She was working, but under duress, and felt that her career had stalled.
· Her leisure activities had been compromised.
110 Dr Serry stated that:
“She remains physically symptomatic with ongoing pain and limitation but has also suffered a very significant psychiatric reaction. She has been particularly stressed, anxious, frustrated, angry and depressed. She further remains traumatised by the accident’s circumstances.”[35]
[35] Medical Report of Dr Nathan Serry, 23 March 2013, p. 6.
111 In his opinion, the plaintiff’s psychiatric injuries would continue to restrict her in relation to social, domestic and recreational activities. The restrictions were likely to be of a long-term nature. Her prognosis was “somewhat guarded given the persistent nature of both her physical and psychiatric symptomology and an ongoing nexus between the two.”
112 Dr Serry thought that it was unfortunate that the plaintiff had ceased both her psychological treatment and treatment with anti-depressant medication. However, the plaintiff gave evidence that she has been referred back to a psychologist and is due to attend the psychologist in coming weeks.
iii) Mr Roy Carey
113 For the defendant, in his report of 11 September 2012, Mr Carey noted that the plaintiff had told him that she had seen a psychiatrist once a week for 12 months because she was “feeling angry ,paranoid not trusting and stressed.”[36] She did not feel that this had helped much and had stopped about 6-12 months ago. She had been prescribed anti-depressants by her GP but did not take them because she was scared of side effects.
[36] Medical Report of Dr Nathan Serry, 23 March 2013, p. 9.
114 In his report of 14 May 2013, Mr Carey concluded that the plaintiff “obviously had a psychological reaction to her physical condition” but as he was not a psychologist or psychiatrist he could not accurately describe the condition other than his description in the body of his report.
Finding
115 With respect to the plaintiff’s mental health, although I am satisfied that she suffers Post Traumatic Stress Disorder and from depression and anxiety, I am not satisfied that her mental condition is “severe” within the meaning of paragraph 93(17)(c) of the Act. While the plaintiff has recently made an appointment to see a psychologist, she has not had any ongoing mental health treatment for a number of years. She has taken very little medication.
116 In addition, in 2009, the plaintiff consulted with Dr Ibrahim and told him that she had problems with concentration all through her childhood and that, while her parents had been in denial, this was something that had bothered her for many years since she was aged 13.
117 However, when the plaintiff told Dr Serry and Dr Abbott that she had suffered from concentration problems since the accident, she did not give them this history. In cross-examination, the plaintiff agreed that she had the symptoms of being “forgetful, fidgety and impulsive for many years.” In addition, she agreed that Dr Ibraham had made a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) prior to prescribing Dexamphetamine.
118 The plaintiff’s explanation for not telling Dr Abbott and Dr Serry of her diagnosis of Attention Deficit Hyperactivity Disorder was that she did not see Attention Deficit Hyperactivity Disorder as being a psychiatric illness, but rather as a learning disability. I accept this explanation but consider that it was a relevant matter for the experts to know and that it may have affected their assessment of the severity of her mental condition to some extent.
119 Accordingly, I dismiss the plaintiff’s application for damages for a severe long-term mental or severe long-term behavioural disturbance or disorder .
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