Scally v Transport Accident Commission

[2016] VCC 671

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

 Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-13-00402

PATRICK SCALLY	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	4 May 2016
DATE OF JUDGMENT:	26 May 2016
CASE MAY BE CITED AS:	Scally v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2016] VCC 671

REASONS FOR JUDGMENT
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Subject:  TRANSPORT ACCIDENT
Catchwords:            Serious injury – injury to the left arm
Legislation Cited:     Transport Accident Act 1986

Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260

Judgment:                Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D J N Purcell with Mr N Fogarty	Slater & Gordon Ltd
For the Defendant	Mr J A Lewis QC with Mr P Gates	Solicitor to the Transport Accident Commission

HIS HONOUR:

1       In this proceeding, the plaintiff seeks leave to commence an action seeking damages in respect of injuries sustained by him in a transport accident on 1 October 2002 at the age of fourteen.  In the application the plaintiff, now aged twenty-five years, relies upon an injury to his left elbow which involved a fracture to the elbow, which was treated by open reduction and internal fixation.  The relevant impairment of body function is that of the left arm.  There is no issue that the plaintiff suffers from ongoing symptoms of pain and impaired function associated with the injury the subject of this application.  The issues which arise for my determination involve:

(i)the extent of the pain and impairment of function generated by the plaintiff’s now stabilised injury; and

(ii)whether the symptoms and disability which the plaintiff has established stem from the subject injury and meet the definition of “serious injury” pursuant to the provisions of the Transport Accident Act 1986 (“the Act”).

2       In the proceeding, the plaintiff relies on three affidavits sworn by him, together with an affidavit of his father, Mr George Scally, and an affidavit from a friend, Mr Bradley Powell.  In addition, the plaintiff gave viva voce evidence in the proceeding and was cross-examined.  Otherwise, the parties rely upon medical and like material, which they have tendered.  In providing my reasons I do not propose to recite verbatim the content of the affidavits in this instance, the viva voce evidence given by the plaintiff or the medical reports and records relied on by the parties.  The contents of that material is a matter of record and I will refer to it only as is necessary to give context and explanation as to my path of reasoning and my findings in this instance.

3       In his affidavits, the plaintiff describes the ongoing effect of his injuries as involving:

(i)ongoing symptoms of pain, weakness and occasional tingling and throbbing pain in his non-dominant left arm which are exacerbated by heavy activity or repetitive movement;

(ii)difficulty in employing his left hand in the continuous use of a computer keyboard;

(iii)a loss of dexterity in the fingers of his left hand, such that he was required to abandon playing the saxophone, from which he derived considerable enjoyment;

(iv)interference with sleep, with the result that he was, at times, tired and irritable;

(v)the need to employ non-prescription pain control in the form of Ibuprofen;

(vi)impaired dexterity, affecting his ability to employ fine motor skills and activities as basic as tying shoelaces;

(vii)pain and tingling in the fingers brought on by continuous keyboard use;

(viii)a restricted ability to undertake gym work; and

(ix)the need to avoid certain activities involved in cooking, household chores and shopping, so as not to experience an aggravation of his symptoms.

4       Mr Bradley Powell, in his affidavit, said that the plaintiff suffered from daily restrictions and limitations in the use of his left hand which caused the plaintiff to avoid activities such as pushing a shopping trolley or carrying heavy bags.  He described occasions upon which the plaintiff was unable to do vacuum-cleaning or mopping by reason of his symptoms.

5       In his affidavit, the plaintiff’s father, Gregory Scally, described the plaintiff having taken up playing the saxophone in Grade 4 and having occupied the position of Captain of the high school band, as well as the upset to the plaintiff associated with the fact that he had to give up his saxophone playing.  He said that he had noticed that the plaintiff had lost strength in his left arm and that he was unable to carry heavy items in his left hand.  He said that the plaintiff had reported to him symptoms of pain associated with the use of a keyboard at work.

6       In the course of his evidence, the plaintiff agreed that he may have presented to various practitioners with an unrestricted range of movement with his left lower-limb.  He denied however that the range of his movement was unaffected by pain, and maintained that he always had some symptoms of pain or discomfort in his left upper-limb.  He said that he had recently been prescribed with Tramadol for management of his symptoms, but that he generally managed his pain by the use of non-prescription pain control such as Panadeine and Ibuprofen.

7       With the exception of Mr Bernard Lynch, there is a consistency within the medical evidence to the effect that the plaintiff presented with a history of intermittent symptoms of weakness and nagging pain in his left hand and arm which was exacerbated by activity.

8       In 2014, Mr Bernard Lynch, orthopaedic surgeon, described the function of the plaintiff’s left hand to be at a high level, commenting that he suffered from mild symptoms with no obvious physical signs and that the tendency of the plaintiff to have problems with grip strength in his left hand had resolved.  I find this opinion expressed by Mr Lynch to lack persuasiveness given the consistency of recorded complaints to the contrary made by the plaintiff to the majority of medical practitioners who have opined in the matter.

9       In April 2015, Dr Mark Cooper, an osteopath, commented upon the fact that whilst the plaintiff presented to him with diffuse left arm and shoulder pain, after treating the plaintiff on six occasions, his symptoms had improved, opining that the plaintiff may be prone to a relapse in symptoms from time to time which would require intermittent management and monitoring.

10      In May 2003, Mr King, orthopaedic surgeon, reported the plaintiff as complaining of mild residual intermittent pain, stiffness and weakness in the left elbow area, together with the presence of clumsiness of the left hand and a tendency to drop things occasionally.

11      In July 2014, Mr King commented that the plaintiff presented with a persistent, mild, nagging ache in his left elbow, occurring two or three times a week, with each bout lasting for a few hours, the pain being no more than mild and associated with mild weakness and stiffness of the elbow.

12      On 9 December 2015, Mr Peter Moran, orthopaedic surgeon, recorded the presence of pain and paraesthesia extending from the plaintiff’s elbow to the ulnar side of his hand and that he had a tendency to drop things, in part because of weakness in his hand but also by reason of insensitivity.

13      In March 2016, Mr Moran commented that the plaintiff did not, in his mind, attempt to mislead during the examination process and that Mr Moran had detected no lack of effort on the plaintiff’s part in responding to specific clinical examination techniques, opining at that time that the plaintiff’s symptoms were organic, legitimate and arose as the result of ulnar nerve lesion at the elbow.

14      In April 2013, Professor Mark Cook, neurologist, obtained a history from the plaintiff of the presence of weakness in his hand and impaired dexterity, his symptoms being significant enough for the plaintiff to have to consider carefully as to what sort of occupation he might be suited.  He said that the plaintiff reported the presence of a throbbing discomfort intermittently in his forearm, associated with occasional tingling in the left hand.

15      In January 2015, Mr Cook obtained a history from the plaintiff that over the years he had developed sensory symptoms and weakness in his left arm which had come on quite insidiously, that he suffered from weakness in the left hand, causing him to drop heavy objects, and of impaired dexterity with fine motor movements.  The plaintiff also complained of a sensory disturbance with reduced sensation and tingling around the left forearm, with Mr Cook repeating his earlier comment that the plaintiff had told him that his symptoms were significant enough to have impacted upon his career choices.

16      Professor Cook made similar comments following an examination undertaken by him of the plaintiff in February 2016.

17      It is a consistent feature of all the above reports that the medical practitioners accepted the fact that the plaintiff presented as a truthful and accurate historian and that the symptoms complained of by him arose by reason of the organic injury sustained by him in the transport accident.

18      The evidence of the medical consultants who have examined the plaintiff on behalf of the defendant involves opinions strikingly similar to that to which I have referred.

19      In 2014, Associate Professor Stark, neurologist, obtained from the plaintiff a history that he has pain in his left elbow which is sensitive to being knocked and produces deep, bony pain, that he had experienced heightened sensitivity in the elbow, that he suffers from weakness in the left hand which is affected by typing and that his symptoms of tingling can be exacerbated by computer work.  He obtained a history from the plaintiff that he had managed his condition substantially with the use of medication in the form of Ibuprofen and Panadeine. At that time, Associate Professor Stark concluded that the plaintiff continued to have “symptoms in his left hand which are troublesome to him during the course of his work”, and opined that the plaintiff’s condition was stable.

20      In 2015, Associate Professor Stark again expressed a similar opinion.

21      In June 2014, Mr Michael Dooley, orthopaedic surgeon, obtained the following history from the plaintiff:

“… he notes intermittent aching of his left elbow.  At times he can note tingling in the fingers and palm of his left hand … at times his left upper limb can feel weak. He said he is unable to do push-ups … at times he can have difficulty typing because of left elbow pain.”

22      In a further report dated 2015, Mr Dooley opined that the plaintiff’s symptoms, as described in his earlier report, were most probably related to the presence of an increased strain imposed upon the ulnar nerve in association with his injury.

23      In August 2015, Mr Dooley opined that the plaintiff presented with residual symptoms in association with his injury.

24      In February 2014, Dr Brendan Hayman, psychiatrist, obtained a history from the plaintiff that he suffered from decreased finger movement in his left hand and episodic numbness of the left fingers, that he had episodic pain and tingling in the medial aspect of his forearm which comes and goes and that he employed Ibuprofen as required:

“This may be 2 tablets twice a week.  On some days he takes none.”

25      Whilst in the course of cross-examination the plaintiff was challenged as to the history contained in the report of Mr Lynch that his problems with dropping things had resolved, given the denial by the plaintiff as to that history and the continued complaint made by the plaintiff of difficulty when holding heavy objects in his left hand, I am satisfied that both:

§  symptoms of discomfort and pain; and

§  difficulty with grip strength and dexterity

have been a continuing feature of the plaintiff’s accident-related condition to date and will remain so for the balance of his life.

26      I make that finding on the basis of:

·        the affidavit evidence relied upon by the plaintiff;

·        the consistency in the histories given by the plaintiff to the various consultants who have examined him; and

·        the failure by any medical examiner to take issue with the veracity of the plaintiff or to suggest that the plaintiff presented with symptoms out of keeping with his accident related condition.

27      Issue is taken by the defendant as to the severity of the plaintiff’s pain.  As to the level of that pain with which the plaintiff presents, when account is taken of the consistency in the plaintiff’s description of his symptoms to the various medical practitioners to which I have referred, I am not satisfied that the plaintiff presents with a condition other than one which is responsible for generating:

·        constant symptoms of a mild degree which can generally be described as being a nagging nuisance to the plaintiff; and

·        occasional symptoms exacerbated by strenuous activity or continued use of his left hand and arm such that he is, at times, required to employ pain relief in the form of Ibuprofen which, by reason of such an exacerbation arising from his present employment, he is currently taking at the rate of two to four tablets per day.

28      Whilst I accept the plaintiff’s evidence that at times the exacerbation of his underlying condition results in severe symptoms, the absence of reported complaints by the plaintiff of such symptoms to his treating general practitioners or the neurological consultants who have examined him for the purpose of this court case leads me to the conclusion that severe symptoms associated with the plaintiff’s condition manifest themselves infrequently, and their presence is an atypical feature associated with his chronic condition.

29      Having regard to the fact that the plaintiff’s symptoms manifested themselves when he was only fourteen years of age, I accept the plaintiff’s position that, in describing his symptoms, he has had a tendency to gloss over the chronic nature of those symptoms.  His evidence at T14 ─ namely:

“From what I perceived as pain – my ideas of pain have changed somewhat where there’s always pain or discomfort in this arm, so what I thought was just normal since it did happen when I was 14 – so what I might have perceived at the time as not involving pain – there’s always pain and discomfort in there to some degree”

in my opinion supports that finding.  Further, given the young age at which the plaintiff sustained his injury, I do not find it surprising that he has learned to live with his symptoms.

30      In circumstances in which history has taught the plaintiff that he can generally manage his condition by employing over-the-counter medication in the form of Panadeine or Ibuprofen as required, I am satisfied that this process explains the absence of complaint made by the plaintiff to his general practitioners as to the presence of symptoms in his left arm.

31      Whilst it was put to the plaintiff that in 2008 he completed a form, when seeking employment with Coles Myer, stating that he was able to undertake unrestricted activity with his arms, given the plaintiff’s age at that time and the fact that he was seeking part-time employment to provide him with some income to support him in his studies, I am not satisfied that the statements made by the plaintiff in completing that form in any way undermine the reliability of the plaintiff’s sworn evidence as to his symptoms.

32      Whilst the plaintiff has been able to maintain full-time employment, I accept the plaintiff’s evidence, as confirmed by Professor Cook, that the plaintiff must be selective in his employment so as to choose occupations which do not involve strenuous activity with his left arm and hand or continuous high levels of bi-manual keyboard operation or repetitive activity with that limb.

33      Equally, I accept the plaintiff’s evidence that the impaired dexterity associated with his condition causes him frustration when undertaking tasks as mundane as tying his shoelaces but, of more significance to the plaintiff, it has impacted significantly upon his ability to progress with his musical interests, particularly playing the saxophone which, having regard to the plaintiff’s evidence, I accept constitutes a significant loss to him.

34      Whilst it was put on behalf of the defendant that the documented failure by the plaintiff to make reference to the presence of symptoms in his left arm when attending his various general practitioners called into question the plaintiff’s evidence as to the extent and ongoing nature of his symptoms, I am satisfied that I should accept the plaintiff’s viva voce and affidavit evidence on those issues, and not discount that evidence by reason of the absence of documented complaints to his general practitioners for the following reasons:

(i)Firstly, I accept the plaintiff’s evidence that given the advice provided to him by Mr Lynch in 2006 to the effect that further treatment would not improve his symptoms, he was not motivated to seek further medical treatment or advice in respect of those symptoms;

(ii)Secondly, having regard to the fact that the plaintiff’s injury was occasioned to him at the age of fourteen, I am satisfied that it is likely that the chronic presence of symptoms since that time has resulted in the plaintiff accepting those symptoms as a feature of his life, which could be managed by recourse to non-prescription pain control if and when required; and

(iii)Thirdly, the strong impression I informed of the plaintiff as he gave  evidence was that he managed his symptoms by attempting to avoid activity which exacerbated those symptoms, the result being that his ongoing symptoms should be appropriately categorised as giving rise to symptoms which are appropriately described as being a chronic nuisance with occasional significant exacerbation.

35      I accept the plaintiff’s evidence, which is supported by the affidavits of his father and friend, that his condition has been such as to cause him to abandon playing the saxophone, that this is a loss to him, and that he is restricted in his ability to employ his left hand in continuous keyboard activity or in strenuous activity such as that involved in lifting heavy objects or strenuous exercise.

36      In my opinion, the overall tenor of the various medical opinions expressed in this instance are consistent with the findings which I have made.

37 In assessing whether the symptoms suffered by the plaintiff meet the threshold established by the provisions of the Act as constituting a serious injury, namely that they give rise to an impairment of function which is appropriately described as being “more than significant or marked” and being “at least very considerable”, it was put by counsel on behalf of the plaintiff that the longevity of the plaintiff’s symptoms in this instance, which commenced with an injury occasioned when he was fourteen-years-old, have largely stabilised such that they will persist at their current level of symptomology for the rest of his life, is a factor which should be accorded significant weight in this instance. In my opinion, that point is well made. Indeed there are relatively few cases which would fall into the category of the present case in which an injury visited upon a fourteen-year-old is responsible for the generation of symptoms which will persist for the balance of his life.

38      In deciding the issue which arises in this case, namely whether the plaintiff’s pain and suffering consequences when judged by comparison with other cases in the range of possible impairments or losses of body function may fairly be described as more than significant or marked, and as being at least very considerable, I am required to assess the consequences in terms of pain and suffering which the plaintiff’s injury has occasioned to him and determine where the facts of this case fit in the broad spectrum of cases.  I am guided in the approach which I should apply to the analysis of the particular circumstances of this case by statements of the Court of Appeal, both in Haden Engineering Pty Ltd v McKinnon[1] and Sutton v Laminex Group Pty Ltd.[2]  It is clear that the task which I am required to undertake involves “a value judgment, in which matters of fact and degree, and of impression, are operative”[3] and one in which I am required to take into account:

“… not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.” [4]

[1](2010) 31 VR 1

[2](2011) VSCA 52

[3]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181

[4]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260

39      It is appropriate to note with specific relevance to this case that the Court of Appeal made the following comments in Stijepic v One Force Group Aust Pty Ltd & Anor:

“… When judging the pain and suffering consequences for the appellant by comparison with other cases, we consider that it is relevant to look at the likely period for which those consequences will be experienced. All things being equal, impairment consequences which a man (or woman) will have to put up with for 40 years might well be judged more serious than the same consequences which a man (or woman) may have to put up with for a much shorter period of time.”[5]

[5][2009] VSCA 181 at paragraph [43]

40      In undertaking the analysis required of me, I take into account the fact that the injury sustained by the plaintiff is to his non-dominant hand and in the circumstances that it has an influence only upon bimanual activity.  Equally, appropriate weight must be accorded to the importance which bi-manual activity plays in the modern world in which computer keyboards figure so prominently. I am further satisfied that I should give due weight to the fact that whilst the impairment associated with the injury has the effect of limiting the fields of employment available to the plaintiff, it is clear that the injury has not prevented the plaintiff from obtaining and retaining full-time employment.

41      I am equally satisfied that whilst the impact of the injury is such as to interfere with the plaintiff’s sleep and require the use of medication, the evidence is unclear as to the regularity with which each of these impacts arise. Further, whilst it is clear the plaintiff has recently been prescribed prescription-strength medication to manage his pain, the use of such medication has never been a common, or even sporadically regular feature of the plaintiff’s management of his symptoms; rather that the plaintiff manages his symptoms with non-prescription medication.

42      In undertaking the balancing exercise required of me, I am satisfied that this case is delicately poised at the very edge of the boundary between consequences which might be appropriately described as being considerable or marked and those which are fairly described as being more than significant or marked and being at least very considerable when judged by comparison with cases in a broad range of possible impairments or losses.

43      I am satisfied however that the findings which I have made as to the consequences of the plaintiff’s incapacity when considered in the context of the longevity of that incapacity in this instance, meet the description of being “more than significant or marked” and as being “at least very considerable”.

44      It follows that I am satisfied that the plaintiff has established his entitlement to the leave sought in this instance and I will hear the parties as to the issue of costs in this matter.

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