Scott Hogan v Transport Accident Commission (No 2)
[2016] VCC 1571
•28 October 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-14-05008
| SCOTT WILLIAM HOGAN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 July 2016 | |
DATE OF JUDGMENT: | 28 October 2016 | |
CASE MAY BE CITED AS: | Scott Hogan v Transport Accident Commission (No 2) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1571 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to the left wrist and lower back – pain and suffering only
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited: Hogan v Transport Accident Commission (Ruling) [2016] VCC 933
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Ms J Frederico | Maurice Blackburn |
| For the Defendant | Mr G A Lewis QC with Ms V Nadj | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Background
1 This is an application by the plaintiff by Originating Motion for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring a proceeding against the defendant to recover damages for pain and suffering. The plaintiff was injured in a transport accident that occurred on 10 November 2002 when he was struck by a motor vehicle in the car park of the Mathew Flinders Hotel in Warrigal Road in Chadstone (“the accident”).[1]
[1]Plaintiff’s first affidavit at paragraph [4]
2 In an earlier Ruling by me on 7 July 2016,[2] I gave leave to the plaintiff to commence a proceeding out of time pursuant to s23A of the Limitation of Actions Act. However, whether or not a proceeding is issued by the plaintiff must necessarily await the outcome of this application.
[2]Hogan v Transport Accident Commission (Ruling) [2016] VCC 933
3 The plaintiff’s case is that he suffers from two permanent impairments as a result of injuries sustained in the accident. Firstly, he claims to have suffered a serious injury to the left wrist and, secondly, a serious injury to his lower back.
4 There is no issue between the parties that the plaintiff sustained a fracture of the distal radius of the left wrist in the accident. The defendant submits this injury is not a “serious injury” within the Act.
5 There is a dispute between the parties relating to the claimed injury to the lower back. The defendant submits that the plaintiff in this proceeding has not discharged the onus which he bears of proving on the balance of probabilities that he sustained an injury to his low back in the accident. If I find that the plaintiff did suffer an injury to his lower back in the transport accident, the defendant then submits that this injury is not a “serious injury” within the Act.
6 The background facts relating to injury and treatment for the left wrist injury are not in contention and can be shortly summarised. Immediately after the accident, the plaintiff attended at Monash Hospital and later, at Frankston Hospital. An x-ray of the left wrist revealed a comminuted fracture of the distal radius involving the articular surface with impaction. The plaintiff underwent surgery performed by Dr Rehfish which involved some manipulation and fixation with K-wires. The wires were removed over the following two weeks but the plaintiff wore a cast for a number of weeks after the accident. Thereafter, the plaintiff attended on approximately forty occasions at the Narre Warren physiotherapy.
7 When the plaintiff attended Dr Rehfish on 15 December 2003, the left wrist was stiff and the plaintiff was experiencing pain and clicking. An MRI scan conducted at that time reported thinning and fraying involving the central third of the triangular fibrocartilage proper but no discrete tear. However, there were features that suggested a previous low-grade injury with thickening and, increased signal involving the attached fibres, which normally insert onto the styloid process. He was referred for physiotherapy.
8 Thereafter, there is no evidence of treatment to the left wrist until 6 April of this year, when the plaintiff attended his present general practitioner, Dr Kingsley, in St Kilda. An x-ray of the left wrist at that time reported:
“Minor deformity of the distal radius consistent with a past fracture and mild degenerative changes are seen in the radiocarpal joint”.[3]
[3]Joint Court Book (“JCB”) 55
The statutory scheme
9 The application is brought under the definition of “serious injury” contained in sub-s.(17) of s.93 of the Act which requires the plaintiff to prove that he has suffered a “serious long-term impairment or loss of a body function”.
10 The relevant considerations which apply to such an application are as follows:
(a) the plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of a transport accident occurring on or after 20 May 1986[4];
[4]Section 93(1)
(b) the injury and, the impairment, must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future;
(c) the plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) to be “serious” the consequences of the injury must be serious to the plaintiff. In forming a judgment as to whether, when regard is had to such consequence, an injury is 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 as “very considerable” and, certainly more than “significant” or “marked”?[5]
[5]Humphries v Poljak [1992] 2 VR 129 at 140-1
Evidence
11 The plaintiff swore three affidavits in support of this application. The first affidavit was sworn on 21 May 2008 (“the first affidavit”) and was prepared by the plaintiff’s former solicitor.[6] The second affidavit was sworn more than seven years later, on 14 October 2015 (“the second affidavit”).[7] It is the principal affidavit sworn by the plaintiff in support of this application. The plaintiff’s third affidavit was sworn on 31 May 2016.[8] In part, it addresses s23A issues.
[6]JCB 20
[7]JCB 23
[8]JCB 34
12 The parties filed a joint Court book consisting of 142 pages which contains the affidavit evidence and medical reports relied upon by each of them. The parties also filed a separate folder which contains the clinical notes and records of the general practitioners and physiotherapists that have treated that the plaintiff from time to time.
The Plaintiff’s affidavit evidence
13 The plaintiff is now aged forty-two.[9] He grew up in country Victoria and was educated in Shepparton to Year 10 level. After leaving school, he commenced an apprenticeship but this was not completed. He then commenced working with Woolworths, progressing to the position of manager, and he remained in that employment for about eleven years. He undertook part-time studies during this time, completing a diploma in applied science at TAFE.[10]
[9]Plaintiff’s first affidavit at paragraph [2]
[10]Plaintiff’s second affidavit at paragraph [5]
14 In 1998, he commenced employment at the Matthew Flinders Hotel as a barman. This was part time whilst he continued to work for Woolworths.[11] Prior to 1998, the plaintiff had also carried out some security work, and this continued after he started working at the Matthew Flinders Hotel.
[11]Plaintiff’s second affidavit at paragraph [7]
15 By February 2002, the plaintiff had left the employment of Woolworths after a managerial dispute. He then commenced employment at Peninsula Health as its head of security in the psychiatric ward.[12] The contract to provide the security was held by a company, Wilson Security. He was employed through a labour-hire firm to do that work.
[12]Plaintiff’s second affidavit at paragraph [7]
16 The plaintiff deposes in his second affidavit that prior to the accident, he enjoyed good health and played competitive sport in the form of football, cricket and golf. He was also in training as a kick boxer. He gave evidence that he had been involved in training in the martial arts since the age of fifteen.[13]
[13]Plaintiff’s second affidavit at paragraphs [8] and [25]
17 The plaintiff married and is now separated. He has four sons aged nine, thirteen, eighteen and twenty. One of his sons is autistic. He now lives with his eldest son, Lachlan, who has also sworn an affidavit in this proceeding but he was not called for cross-examination.[14]
[14]Plaintiff’s second affidavit at paragraph [6] and JCB 46
18 The plaintiff previously had problems with his arms but suffered no ongoing impairment. He fractured his left scaphoid in 1989 whilst falling from a bike and, at about the age of twelve, he fractured his wrist when he fell off a roof. Both fractures were satisfactorily repaired.[15]
[15]Plaintiff’s second affidavit at paragraph [8]
19 In 1992, he underwent an arthroscopy of his right knee for a football injury but apparently had no ongoing problems caused by his right knee.[16]
[16]Plaintiff’s second affidavit at paragraph [8]
20 In the twelve months prior to the accident the plaintiff had complained of a sore back and he conceded that he had in cross-examination.[17] On 17 December 2001, when he attended upon his general practitioner, Dr Kabourakis, the plaintiff’s complaint was that he suffered back soreness after stacking some tiles some three days beforehand. The doctor recommended heat massage and stretching. At a follow up visit three days later, the plaintiff told his general practitioner that he felt better. There was no follow-up after those attendances in December 2001, about eleven months before the accident.[18]
[17]T14
[18]Plaintiff’s second affidavit at paragraph [8] and JCB 79. See also the general practitioner’s clinical notes at page 2 behind the relevant tab.
21 The circumstances of the accident were that the plaintiff was struck by a vehicle in the car park of the Matthew Flinders Hotel. He was thrown into the air, landing on his wrist and his buttocks.[19] He fractured both wrists. He was taken to the Monash Medical Centre, then to the Frankston Hospital, where he was diagnosed with a compound fracture of the left wrist. He was operated on by Mr Rehfisch.[20] The fracture was reduced and K-wires were inserted. Fractured right carpal bones awaited diagnosis.
[19]Plaintiff’s second affidavit at paragraph [9]. See also the diagram drawn by the physiotherapist at Narre Warren Physiotherapy at page 7 behind the relevant tab
[20]Plaintiff’s second affidavit at paragraph [11]
22 Mr Rehfisch said that the plaintiff would be unable to return to full duties for approximately three months but he may be able to return to some light duties after about ten weeks. The K-wires were removed on 10 December 2002 and the wrist was placed in a cast.
23 Following surgery, the plaintiff was referred to Narre Warren Physiotherapy and Sports Injury Centre. He first attended there on 15 January 2003 where he initially saw Mr Rory Fabbri and Ms Kate McDermott.[21] At that time, he was complaining of an inability to do a range of things such as pulling a beer, carrying trays, and he was unable to play golf.
[21]JCB 93
24 Between 15 January 2003 and 20 July 2003, the plaintiff attended for physiotherapy treatment regarding his left wrist injury on about forty occasions. I was told the physiotherapist notes recorded no complaints of back pain throughout the period between the time of the accident and 3 July 2003.[22]
[22]Transcript (“T”) 5, Lines 2-4
25 It was the plaintiff’s intention to return to playing football in the 2003 season. On 9 April 2003, the physiotherapist made a note that the plaintiff played off the bench with no particular problems[23] and, on another occasion there is a note concerning his right knee.[24] However, apart from this, the plaintiff did not resume playing football. He regarded his attempt to return to the game as unsuccessful.
[23]Narre Warren Physiotherapy notes at page 12
[24]Narre Warren Physiotherapy notes dated 23 April 2003 at page 13
26 As at May 2003, the plaintiff complained of pain in the left thumb and index finger as well as the left wrist, and a letter was written to Mr Rehfisch in respect of that issue.[25] By the time of his discharge as an outpatient on 3 July 2003, the plaintiff was experiencing permanent limitation of movement in the left wrist, some diminution of grip, and the physiotherapist noted some carpal tunnel symptoms.[26]
[25]Narre Warren Physiotherapy notes at page 13
[26]Narre Warren Physiotherapy notes at page 14
27 The plaintiff returned to see his general practitioner, Dr Kabourakis, on 30 August 2005 when he again complained of low back pain. On this visit, the plaintiff himself associated the onset of back pain to a recent event when he bent down to pick up a broom.[27] There was no attempt by the plaintiff himself to relate this complaint of back pain to the accident. Examination at that time revealed that the plaintiff was tender in the lumbar spine and left facet joints. Movements of the lumbar spine were restricted due to pain. He was managed conservatively with stretches, heat, rest and anti-inflammatory medication. The report of Dr Kabourakis dated 23 March 2009 records that there was no further mention made by the plaintiff of any ongoing low back problems and, the plaintiff had not sought to relate his back complaints to the accident.[28] Dr Kabourakis reported that the first time he had heard of the plaintiff being injured in the accident was in a visit in November 2008. He said “up until that time I was not even aware he had ongoing major issues as he had never brought them up during other routine consultations”.[29]
[27]General practitioner’s clinical notes at page 4
[28]JCB 80
[29]JCB 80
28 Prior to the accident, the plaintiff had been working long hours involving two jobs, the first in security working for Wilson Security at the Frankston Hospital and, the other as a barman at the Matthew Flinders Hotel.[30]
[30]Plaintiff’s second affidavit, JCB 28 at paragraph [24]
29 The plaintiff did make himself available to return to work in security about three or four months after the accident. However, he could only do so on a light duties basis because of his left wrist injury and his employer, Wilson’s, was unable to accommodate this because there was no work available of the kind the plaintiff was capable of performing.[31] That work was lost to him. The plaintiff relies upon this evidence as a significant consequence to him arising from the injury to his left wrist.
[31]Plaintiff’s second affidavit, JCB 29 at paragraph [25]
30 The plaintiff returned to work at the Matthew Flinders Hotel on a return to work program supervised by the defendant and subsidised by it. He had ongoing difficulty pulling beers and carrying out general tasks as a barman that required him to carry things.[32]
[32]Plaintiff’s second affidavit, JCB 28 at paragraph [24]
31 In March 2003, the plaintiff obtained new employment as a storeman. In his second affidavit he deposed to applying for twelve to fifteen jobs in security work.[33] In fact he corrected this in evidence to say that he applied for twelve to fifteen jobs until he obtained the job as a storeman, but those jobs were not in security work.
[33]JCB 29 at paragraph [26]
32 He was employed by Bescon Industries as a storeman from March 2003 which resulted in a drop in income of approximately $500 per week. The plaintiff leads this evidence to support his case arguing, that because of his ongoing impairment in the left arm, a consequence for him is that he is unable to carry out security work and, he has therefore lost vocational opportunity (security work).
33 Throughout 2003, the plaintiff deposes that he endeavoured to get back to sport but was unable to do so. He worked as a storeman for Bescon Industries for twelve months including, driving a forklift, before purchasing his own truck. He commenced work as a self-employed truck driver for the next ten years.[34] Having purchased a semi-trailer and truck, the plaintiff began driving local routes but found that the work dried up and he then began driving his semitrailer on longer haul routes.[35]
[34]Plaintiff’s second affidavit, JCB 30 at paragraph 29]
[35]Plaintiff’s second affidavit, JCB 30 at paragraph [30]
34 In 2014, the plaintiff’s trucking business failed financially. He commenced to do local deliveries driving as an employee of a subcontractor, driving between Dandenong and Braeside. He delivers paper from a mill in Dandenong to Braeside for processing, doing three to four trips in a semitrailer each day.
35 He deposes that throughout this time he experienced back pain. He says that his injuries have reduced his ability to undertake recreational activities. Whereas prior to the accident he had been enjoying kickboxing several times a week for at least ten years, he has not been able to return to this sport because of his injuries.[36] The plaintiff has given evidence in his second affidavit that prior to the accident he used to enjoy playing golf but since the accident he has found that swinging a golf club is extremely painful due to his left wrist injury.[37] The plaintiff was a club golfer and was a member at Devils Bend Golf Club. The plaintiff has reduced the amount of running he does since the accident because of low back pain.[38] He says that he is unable to play football because of his inability to run and kick.[39] He did make an unsuccessful attempt to return to football. He deposed that due to lack of exercise he has experienced weight gain.[40]
[36]Plaintiff’s second affidavit, JCB 32 at paragraph [36] and Plaintiff’s third affidavit, JCB 37 at paragraph [14]
[37]Plaintiff’s second affidavit, JCB 32 at paragraph [36] and Plaintiff’s third affidavit, JCB 37 at paragraph [14]
[38]Plaintiff’s second affidavit, JCB 32 at paragraph [36]
[39]Plaintiff’s third affidavit, JCB 37 at paragraph [14]
[40]Plaintiff’s second affidavit, JCB 32 at paragraph [36]
36 The plaintiff gave evidence that he was restricted in his domestic activities and for some time was unable to carry out tasks such as lawn mowing and other maintenance work.[41] Because of this he moved into a unit.[42]
[41]Plaintiff’s second affidavit, JCB 32 at paragraph [37]
[42]Plaintiff’s second affidavit, JCB 32 at paragraph [37]
37 In terms of medication, the plaintiff swore in his third affidavit that he currently takes Voltaren, Nurofen and Panadol to reduce his left wrist pain and back pain. He deposes that he takes Nurofen once or twice a week, also Panadol once or twice a week and Voltaren “on occasion”.[43]
[43]Plaintiff’s third affidavit, JCB 35 at paragraph [5]
38 In his third affidavit, the plaintiff gives evidence of hearing a clicking or cracking sound emanating from his left wrist on movement. He says this comes on suddenly when lifting heavy objects and his wrist locks on him at times in the result that he is unable to properly straighten it. He says he continues to experience pain in his left wrist which varies in intensity depending on his level of activity. He says the pain is aggravated by long periods of driving due to gripping the steering wheel and, he also has a feeling of stiffness and soreness in his left wrist when holding objects for too long.[44]
[44]Plaintiff’s third affidavit, JCB 35 at paragraph [8]
39 He also complains of continuing pain and weakness in his lower back. The pain radiates into his buttock and hamstring area and at times over the side of his knees and into his left foot. He complains of pins and needles sensation in his left toes particularly his left big toe. The plaintiff gives evidence that his low back pain is aggravated by stooping and bending. He says it is difficult for him to bend over to put his shoes on or tie them. He says he feels like he has lost strength in his low back.[45]
[45]Plaintiff’s third affidavit, JCB 35 at paragraph [9]
40 The plaintiff deposes that he continues to suffer from low back pain. An MRI scan of the lower back on 18 November 2008 showed some discal problems, and a CT scan on 2 November 2003 showed a central disc protrusion at L4-5 with some mild canal stenosis contacting the left nerve root.[46]
[46]JCB 53
41 The plaintiff deposes that he continues to have problems in both his wrist and his low back. From February 2011, he has received treatment in the form of physiotherapy from Koo Wee Rup Medical Centre and Narre Warren Physiotherapy. This treatment has been paid for by the defendant.
42 The plaintiff continues to complain of left wrist pain and as at 7 April 2016, an x-ray of the left wrist showed some deformity of the distal radius consistent with past fracture and mild degenerative changes.[47]
[47]JCB 55
43 The plaintiff’s application is based upon a long-term impairment and loss of body function of the left wrist causing impairment of function of the left upper limb and, injury to the spine causing impairment and loss of function to the spine.
44 The plaintiff complains that he has suffered impairment and loss of body function to his back because he experiences pain caused by prolonged stooping and heavy lifting, difficulty with sleeping[48] and, restriction in his range of movements which he says at times cause him severe pain. Regarding injury to his left wrist, he says that he suffers from constant pain exacerbated by repetitive duties and repetitive use.
[48]Plaintiff’s second affidavit, JCB 32 at paragraph [38]
Cross-examination of the Plaintiff
45 The plaintiff was cross-examined about the history of his injuries given to various doctors and in particular what ongoing pain and suffering consequences he had experienced since suffering those injuries. In particular he was cross-examined about his employment post the accident. Inter alia, he gave evidence that his security work at the Frankston hospital was terminated but he returned to work at the Matthew Flinders Hotel where he worked on light duties as a barman for 32 hours per week. He agreed he then worked as a forklift driver for Bescon without back pain and he was able to operate the forklift without difficulty caused by his left wrist.[49]
[49]T31
46 He agreed that in 2004 he left Bescon and set up business as a sole trader as a truck driver, setting up the business through a trust structure. He agreed he was able to strap his load using a winch. The work involved long hauls interstate and to outback Queensland to places like Charleville.[50] He agreed he told Dr Littlejohn he had no trouble doing this work.[51] He also agreed that he was making a good income doing this work but his business became un-financial when he suffered from the effects of an unrelated respiratory illness that had plagued him for some years.[52]
[50]T32-34
[51]T34
[52]T35
47 The plaintiff agreed that after his business failed financially, he obtained work with a friend who had a contract to work at the airport. He was working 12-hour shifts doing this work which involved him driving trucks. He agreed he would have continued with this work but for the fact his friend lost the contract.[53] He also agreed that he had told Dr Powell he had no difficulty sitting, standing or walking.[54]
[53]T35
[54]T40
48 The plaintiff was cross-examined about the fact he had deposed in his affidavits that he had been unable to return to playing golf. In cross-examination, he agreed he had played golf since the accident but he said he would have played less than ten times in the last fourteen years.[55] When pushed, he said that he had last played golf the day after Black Saturday in February 2009 but soon after, he agreed he told his physiotherapist in 2012 that he had recently played golf.[56] He also agreed he had “filled in a few times” playing cricket with his son around 2012. He agreed he had enjoyed shooting at a local rifle range.[57] He also agreed he was not on any medication for the claimed injuries and he took Nurofen only “occasionally”.[58] The plaintiff said he was not receiving any treatment for his injuries and he last consulted a physiotherapist about three years ago.[59]
[55]T41
[56]T41
[57]T41-42
[58]T43
[59]T43
Medical opinion
49 The plaintiff saw Mr John McCaffrey, a psychologist, for medico-legal purposes at the request of his then solicitors on 25 June 2003. He gave a brief history to Mr McCaffrey and told him that he had lost movement in his left wrist and he suffers from arthritis that had developed in the right wrist. He complained of loss of grip strength in the left hand and was troubled by persisting pain and loss of function on the left hand side. At that time, the plaintiff made no complaint of back pain.[60]
[60]JCB 56
50 The plaintiff saw Dr Edward Cole, a psychiatrist, for medico-legal purposes on 15 September 2004. Dr Cole’s opinion is not here relevant but is tendered in evidence of the complaint made by the plaintiff to Dr Cole at that time that he had suffered from low back pain from about six to eight weeks after the accident but that he had not been x-rayed for this.[61]
[61]JCB 63
51 The plaintiff was also sent by his former solicitors to Mr Garry Grossbard, an orthopaedic surgeon, for medico-legal purposes in February 2004. He complained of low back pain which he said he had suffered from about six to eight weeks after the accident.[62]
[62]JCB 60A
52 The plaintiff also told Mr Grossbard that he did not have a great deal of problem with his right hand and his main concern related to his left hand and arm. The plaintiff complained that he had lost movement in the left hand and wrist and he described a constant dull ache with clicking and severe pain with sudden movements.[63] Mr Grossbard gave this opinion:
“This man has had bilateral wrist injuries and a soft tissue injury to his lumbar spine. The injury on the right side has healed without ongoing symptoms but on the left side there is clear ongoing pain with some restriction of movement and in particular restriction of activity. His lumbar spine injury has been of a soft tissue nature but despite exercising has not improved over a 15 month period.
This man’s left wrist in particular effects (sic) his ability to work in the security industry. His ongoing back problems prevent him from running, bending and lifting. He is currently employed in a job which he can cope with but which is a step down from his previous levels of occupation.
I do not think that the situation is going to change a great deal from this point. I believe that things have stabilised. I did not envisage the need for early surgery to his left wrist although the likelihood of him developing degenerative change in the future is markedly increased. If this should in fact occur he may require further surgery later in life. This would probably take the form of a wrist fusion. I would not anticipate that being required for many years if at all.”[64]
[63]JCB 60
[64]JCB 60-61
53 The plaintiff was also seen by Mr Brian Barrett, an orthopaedic surgeon, for medico-legal purposes at the request of his former solicitors on 6 November 2008.[65] The plaintiff told Mr Barrett that about a week after the accident, by which time he was starting to move about more freely, he began to complain of increasing low back pain particularly when he attempted to get back to running and this produced tightness, cramp and pain into both hamstring muscles, along with backache. He told Mr Barrett that these symptoms increased once his wrists healed and he was able to return to his normal job as an owner/driver of a large delivery truck which involved delivering groceries throughout Melbourne. The plaintiff told Mr Barrett that he avoided prolonged stooping and heavy lifting situations because they aggravate his symptoms.[66]
[65]JCB 68
[66]JCB 68
54 It was Mr Barrett’s opinion that the plaintiff sustained a significant and serious disc rupture at the L5-S1 lumbar level in the accident. Mr Barrett said that this opinion is verified by the radiological examinations of the plaintiff. He thought that the plaintiff had the ability to continue to work as a truck driver doing his delivery work provided that he minimises prolonged stooping and heavy lifting activities. He also thought that the plaintiff’s back injury was permanent.[67]
[67]JCB 70
55 In relation to the injury to his left wrist, the plaintiff was seen by Mr Geoffrey Littlejohn, a rheumatologist, at the request of the defendant on 7 July 2009.[68] According to the report of Mr Littlejohn, the plaintiff gave him a history including about his work as a truck driver and that he had no problem carrying out his work.[69] The plaintiff told Mr Littlejohn that his right wrist has resolved and he has no problems with it, but in the left wrist, he has ongoing discomfort and stiffness and he cannot generate a normal grip strength in the left non-dominant wrist. The plaintiff complained to Mr Littlejohn that he has restriction in range of motion in the left wrist and abnormal tingling in the fourth and fifth digits from time to time.
[68]JCB 81-92
[69]JCB 83
56 Mr Littlejohn was of the opinion that the right wrist injury had completely resolved[70] but the left wrist had not resolved and may lead to future problems.[71] He thought the plaintiff’s low back degenerative disease will likely deteriorate slowly over time and he recommended appropriate core muscle stabilisation exercises of the Pilates type to improve his back symptoms. Mr Littlejohn thought that it was possible that operative intervention may be required for the left wrist if osteoarthritis developed but he thought this would take several years or even decades to develop. Similarly, he thought that any requirement for operative intervention to the lower back was many years off.[72]
[70]JCB 88
[71]JCB 88
[72]JCB 81-91
57 Mr Rodney Simm, orthopaedic surgeon, saw the plaintiff for medico-legal purposes of both parties on 25 June 2015.[73] Speaking of the injury to the left wrist, Mr Simm thought the plaintiff was left with “some mild residual and occasionally painful left wrist dysfunction”.[74]
[73]JCB 97
[74]JCB 103
58 Dealing with the back, his opinion is as follows:
“Symptomatic L5-S1 lumbar disc degeneration. It was difficult to establish a precise relationship between his current chronic relapsing lumbar back pain from L5-S1 lumbar disc degeneration and the transport accident. There was one episode of back pain one year before the accident, from which he recovered fully, but this episode indicated his propensity to develop back pain with mechanical loading of the back. He developed low back pain as he became more active, whilst recovering from the wrist fractures. The mechanism of the transport injury was a blow to the buttocks, which was sufficient to knock him to the ground and this had the potential to injure the compromised degenerate L5-S1 lumbar intervertebral disc. His back certainly became more problematic once it became symptomatic after the transport accident in 2002. The L5-S1 lumbar disc changes on the MRI scan are constitutional and the actual changes are not likely to relate specifically to the transport accident. It is not possible to quantitate the degree of pain and disability arising from constitutional degenerative changes and from the traumatic effects of the accident. He has occasional referred symptoms into the lower limbs but no clinical signs of radiculopathy. I note in the file material, reference to the CT scan change of an L4-5 disc protrusion. This minor degree of disc protrusion on a CT scan, particularly when the MRI scan showed the L4‑5 intervertebral disc to be in good condition, is irrelevant.”[75]
[75]JCB 103
59 In a second report and, after re-examining the plaintiff on 6 April 2016, Mr Simm gave the opinion that the back injury was an aggravation of pre-existing but quiescent L5-S1 lumbar disc degeneration. As to the wrist injury, he said the left wrist was an intra-articular fracture and this greatly increases the risk for the development of post-traumatic osteoarthritis of the left wrist joint. It was his opinion that because the left wrist is a non-weight-bearing joint and the fracture is reported to be well reduced, then the likelihood of the development of osteoarthritis was reduced. He thought the plaintiff’s symptoms had deteriorated in the nine months since his first report.[76]
[76]JCB 114-115
60 Finally, the plaintiff was seen by Dr Gerard Powell, a consultant orthopaedic surgeon, at the request of the defendant on 20 April 2016. In his report, Dr Powell said:
“Mr Hogan sustained an injury to his lower back, likely a direct compression injury as a result of falling heavily onto his buttocks. He has evidence of a chronic disc injury by 2008, six years afterwards. It is probable that the disc injury arose as a result of the motor vehicle accident as there is no history of any other injury to the lumbar spine. This manifests as some stiffness in the back and he gets occasional pins and needles in his feet but there is no evidence clinically today or on the radiology of 2008 of any neurological compromise. It is likely he will have ongoing symptoms of stiffness in his back and may require the use of simple analgesics from time to time. I do not believe he will require any surgical treatment for the back.”[77]
[77]JCB 137
61 In answer to specific questions asked of him, Dr Powell was of the opinion that the disc injury at L5-S1 was caused by the motor vehicle accident.[78]
[78]JCB 138
62 So far as the injury to the left wrist is concerned, Dr Powell concluded, inter alia:
“… He sustained a comminuted intraarticular fracture of his left distal radius which required internal fixation and [a] prolonged period of immobilisation in plaster. He has had an excellent result with this with good restoration of the anatomy of the wrist but is now developing very mild symptoms of posttraumatic arthrosis in the joint. It is unlikely that he will require any surgical intervention for this. His symptoms are consistent with posttraumatic arthrosis and the soft tissue clicking he had after playing the PlayStation is unlikely to be related to any significant new diagnosis.”[79]
[79]JCB 137
63 He added:
“… The left wrist will continue to have some mild restriction in movement and some mild discomfort. Mr Hogan is likely to have ongoing mild stiffness in his lower back with some lower back discomfort. The situation seems stable and stationary. I do not believe that he will require any operative intervention. A CT report dated 02.11.2011 performed at MDI Chelmer in Pakenham reports central disc protrusion at the L4/5 disc space which was not evident on the MRI scan of 2008. This likely represents degenerative change in the lumbar spine unrelated to this motor vehicle accident.”[80]
[80]JCB 138
64 Dr Powell noted that is now thirteen-and-a-half years since the plaintiff was injured and he is not currently having active treatment for any of his injuries arising from the motor vehicle accident.[81]
[81]JCB 138
Assessment of the Plaintiff as a witness
65 In my view, the plaintiff is an unreliable historian. In my earlier judgment on the question of extending time within which to bring a proceeding, I accepted the plaintiff as a witness of truth. I have no reason to change that judgment, having seen and heard the plaintiff being cross-examined on this application. However, having closely examined all of the evidence in this case, I have concluded that the plaintiff’s evidence is unreliable in a number of respects, caused by the passage of time. I formed the strong view his memory of relevant matters is not good and probably caused by the passage of time. Some of the evidence that he has given by way of affidavit is simply inconsistent with that which has been recorded by doctors whom he has consulted for one reason or another over the years. When confronted with several examples of this in cross-examination, the plaintiff appropriately conceded that he may have or, possibly did, say certain things to some of the doctors. Doctors can record things inaccurately or, misinterpret what it is that the patient is saying. In this case, there are simply too many examples of inconsistency of complaint or, discrepancies between what the plaintiff has deposed to as to the pain and suffering consequences to him of his injuries and what he is recorded as having told certain doctors, for those inconsistencies or discrepancies to be explained by doctor error. In my view, the plaintiff has behaved truthfully at all times. He simply cannot remember what he has told certain doctors and his memory of how he has been affected by these claimed injuries and when is poor.
The back injury
66 Mr Tobin, who appeared as Senior Counsel for the plaintiff, conceded in submissions that the evidence does not disclose any contemporaneous complaint by the plaintiff of having suffered pain or injury to his low back region at the time of the accident. However, he submits that when the plaintiff consulted a physiotherapist, Mr Willoughby, on 15 January 2003, he described how he fell in the accident and a diagram illustrating how the plaintiff fell drawn by the physiotherapist in his notes is said to be consistent with the possibility of a low back injury.[82] Whilst that is the evidence, it does involve a degree of speculation which I am not prepared to engage in. Importantly, the notes of the history taken by the physiotherapist do not record any complaint of a back injury.
[82]Notes of Narre Warren Physiotherapy at page 7
67 Mr Tobin submitted that the evidence discloses a complaint of an injury to the back by the plaintiff at a relatively early time. When the plaintiff was examined by Mr Grossbard on 17 February 2004 (more than five years after the accident), he described “an element of low back pain which became obvious six to eight weeks after the injury”.[83] Mr Tobin also relies upon the evidence of complaint of back pain by the plaintiff to Dr Cole on 8 September 2004.[84]
[83]JCB 60A
[84]JCB 63
68 The plaintiff relies upon this evidence of prior early complaint of back pain and submits that he has been consistent in his statements to doctors that he suffered from low back pain from six to eight weeks after the accident. This complaint was later reflected in his affidavit sworn 21 May 2008.[85] The plaintiff’s case is that he has continued to have ongoing symptoms of pain and stiffness in the lower back which are variously referred to in the physiotherapist notes and the clinical notes from the Koo Wee Rup Medical Centre.
[85]JCB 21 at paragraph [8]
69 In submitting that the plaintiff suffered an injury to the low back in the accident, the plaintiff also relies upon the orthopaedic opinions submitted in evidence. The plaintiff relies on the opinion of Mr Simm that he suffers from an injury to his lower back which is part constitutional in nature and partly caused by the accident.[86] In his report, Mr Simm, speaking of the injury to the back, said that it was difficult to establish a relationship between the low back pain and the accident[87] and, later, he says it is an aggravation of pre-existing but quiescent L5-S1 lumbar disc degeneration.
[86]JCB 105
[87]JCB 113
70 The plaintiff also relies upon the opinion of Dr Powell which is similar to that of Mr Simm.[88]
[88]JCB 137
71 So far as the claimed injury to the low back is concerned, the plaintiff’s best case is that I should accept the opinions of Mr Grossbard, Mr Barrett, Mr Simm and Dr Powell and find that the plaintiff has suffered an aggravation of a quiescent pre-existing disc degeneration in the back which has accelerated symptoms relating to the lower back.
72 The defendant’s case in relation to the injury to the plaintiff’s lower back is that the plaintiff has not proved on the balance of probabilities that he did suffer from an injury to his lower back in the accident. The defendant’s case is that the plaintiff did not complain of pain and symptoms to the lower back until well after the accident and he had no treatment for the injury now claimed until well after the accident. The defendant also argues that the plaintiff’s case is speculative and at the plaintiff has not proved exactly what the injury to the lower back was that was suffered in the accident. The plaintiff must prove the nature of the injury suffered and, if the injury was an aggravation, the plaintiff must prove the extent of the aggravation and the consequences from the aggravation must be “serious” within the meaning of the Act. The defendant’s case is that the plaintiff’s case fails at each step along the way.
73 The defendant submits that the plaintiff’s capacity as an accurate historian is of paramount importance in deciding the issues in this case. That is because the medical opinions depend almost exclusively on the accuracy of the plaintiff absent independent clinical or radiological support. That is especially so in respect of the claimed injury to the back.
74 The defendant submits the plaintiff has been shown to be an unreliable historian. He had complained to Dr Kabourakis of back pain after lifting tiles in 2001, prior to the accident. He had later complained to the same doctor of low back pain after an incident involving a broom in 2005 without mentioning having suffered from back pain since shortly after the accident. He made no complaint of low back pain to Mr McCaffrey in June 2003. He has had a long history of work, both as a truck driver, long haul and short haul, and as a storeman and forklift driver since the accident.
75 The defendant submits that it is important in this case that the plaintiff did not complain to his general practitioner of having injured his back in the accident. The evidence is that the first time that Dr Kabourakis heard of this was in 2008. The defendant submits the records of the general practitioner record no complaint of back pain consistent with the report of that general practitioner. The defendant points out that the records show transient reference to back pain generally until late 2011 when the plaintiff complained that he had injured himself while stepping from a truck. The records of the general practitioner record that the plaintiff had trouble sleeping since “a back injury some weeks ago”.[89]
[89]Tab 1, page 5
76 The defendant submits that it is improbable that a doctor and physiotherapist would fail to record complaints of back pain if they had been made. The defendant submits the more probable fact is that there was no such complaint and that was because there was no back issue of any significance having been caused by the accident. I accept that submission. In my view, this inference is inescapable from the evidence.
77 The defendant submits, and I accept, that the evidence led by the plaintiff does not properly link his low back seat symptoms to the accident. It is somewhat speculative, but the plaintiff may have suffered a very low level soft tissue injury to the back at the time of the accident, having regard to the mechanism of the accident and, he probably recovered very quickly from this. However, save for the injury to his wrists, the evidence shows that the plaintiff returned to work, initially on light duties because of his wrist injury, and then later worked full time as a truck driver for a number of years and as a storeman. There is no evidence of the plaintiff having made complaint to any treating doctor or physiotherapist of low back pain caused by the accident. There is evidence of him having complained of low back pain that the plaintiff related to other incidents, both before and after the accident.
78 In my opinion, the evidence led by the plaintiff does not permit a finding that the plaintiff suffered an injury to his low back in the accident which could be regarded as a “serious injury” within the meaning of the Act.
79 I accept the plaintiff now suffers from a low back injury. But that injury and its ongoing consequences for the plaintiff cannot be shown to have been caused by the accident. Further, to the extent the plaintiff continues to suffers consequences from his low back injury, those consequences must be disentangled from the consequences caused to the plaintiff because of his left wrist injury. In my view, the evidence does not permit proper disentanglement. For example the plaintiff claims ongoing difficulty in sleeping. The evidence does not enable a finding as to whether this is a consequence of the injury to the left wrist or a consequence of the back injury not suffered in the accident.
The left wrist
80 As to the injury to the left wrist, the plaintiff points out that there is no issue that the claimed injury was suffered. The issue here is whether or not that injury is “serious” within the meaning of the Act.
81 Regarding the consequences to the plaintiff caused by the left wrist injury, the plaintiff relies upon his evidence that he has not resumed playing club golf and, since the accident, he has not resumed lap swimming. The plaintiff conceded that he has played some golf since the accident. He said his last game was in 2009. However, apart from the fact that the plaintiff was previously a member of the golf club, there is no evidence as to how often he played golf prior to the accident. The fact that he previously held a handicap is of little assistance. Absent evidence that the plaintiff was a regular golfer, I am not prepared to find the fact that he no longer plays golf is a serious consequence for him.
82 The same might be said of the claim that the plaintiff has lost the ability to swim laps in a pool. I would be surprised were that the fact, that the plaintiff’s impairment caused by his left wrist injury prevented him from being able to swim laps in a swimming pool.
83 The plaintiff has lost the ability to seek employment in the security industry. However, as his employment history since the occurrence of the accident shows, he has retained the ability to do other work. His work as a long haul and short haul truck driver must have involved him with constant and repetitive use of his left wrist. This would be so, both in driving the trucks involved and in securing the loads and assisting with loading and unloading the trucks. I accept that this work would involve the plaintiff suffering pain especially at the end of a long day’s work. However, the evidence shows that he has been able to do this with minimal ongoing treatment for his left wrist and with minimal prescribed medication. In giving consideration to this application, I have taken into account the fact that the plaintiff has lost the ability to seek employment in the security industry and that this is an important factor in the evidence. However, and to his credit, the plaintiff has shown the ability to get on with his life in other ways.
84 Mr Tobin submitted correctly that the plaintiff has lost flexibility in seeking employment and he relied upon a number of authorities where the Court of Appeal has considered that such a loss is indicative of a plaintiff having suffered a serious injury. In my view, the position of the plaintiff here is different. There is no evidence that he held a passion to work in security. His work history, both before and after the accident, shows that he has ability and qualifications to work in a number of unskilled jobs and whilst I accept there has been some loss of flexibility in his career, too much weight should not be put upon that aspect in the circumstances of this case.
85 Mr Tobin submitted that the evidence shows that the plaintiff has a permanent injury and incapacity in his left wrist. He submitted that as result of the injury and incapacity, the evidence shows that the plaintiff suffers consequences that should be regarded by me as “serious” within the meaning of the Act. He points to the plaintiff’s evidence that he has difficulty sleeping, ongoing pain and restriction of movement of the left wrist resulting in an inability to carry out physical activities such as kickboxing, golf, football and restricted gym work. He points to the plaintiff’s evidence of difficulties in daily maintenance and swings in mood. Mr Tobin submits that the evidence shows that the plaintiff’s left wrist injury is permanent and has an effect upon his day-to-day activities and recreation in a way that may be more devastating to him that it would to others.
86 The defendant submits that I should not accept the plaintiff’s evidence as to the effect of his left wrist injury on his day-to-day living. It points to a number of inconsistencies in the evidence. The defendant submits that the plaintiff’s physiotherapist records conflict with his claim that he does not swim. Also, the defendant submits that the plaintiff’s claim that he has ceased playing golf is contrary to information recorded by his physiotherapist. Further, the defendant submits that the plaintiff told Associate Professor Littlejohn that he can still play golf and low-level cricket.
87 As I said earlier, I do not accept the evidence of the plaintiff as reliable. The criticisms made by the defendant of the plaintiff as a witness are, in my opinion, valid and I act on them. Whilst I accept that the plaintiff has done his best, he is not a reliable historian and I think the defendant’s arguments are well made. I am not prepared to accept the plaintiff’s evidence as to the consequences for him of his injuries. There are too many inconsistencies in the evidence.
88 In my opinion, the evidence that I do accept shows that the injury to the plaintiff’s left wrist should not be regarded as a “serious injury”. He returned to bar work, working 32 hours per week, soon after the accident. He worked for the following six to eight months doing this work and, I accept that is evidence of his capacity to be able to do the work.
89 Thereafter, he spent many years working as a long haul and short haul truck driver. He had little if any treatment until 5 December 2011, when he sought physiotherapy treatment, having injured his back whilst stepping from a truck. He did not mention the accident as a possible cause to his physiotherapist. He had a number of good years financially, operating his own business as a truck driver.
90 The defendant points to evidence that the plaintiff continues to play low-level cricket and golf, and even football. He has engaged in swimming and shooting.
91 Any treatment for the left wrist injury ceased in 2003.
92 Mr Littlejohn was of the opinion that it was possible that operative intervention may be required for the left wrist if osteoarthritis developed. However, he thought that this would take several years or even decades to develop.
93 Mr Simm thought that the plaintiff was left with some mild residual, occasionally painful, left wrist dysfunction. Mr Powell thought the plaintiff’s injury was of fairly mild severity.
94 Having given the matter considerable thought, I have reached the conclusion that the evidence does not show on the balance of probabilities that the injury to the plaintiff’s left wrist, although permanent, should be regarded as “serious”. In my view, the lengthy period of time that has now passed since the accident has shown that the plaintiff has been able to live with the consequences of the injury, both in terms of his ability to work and his ability to have a relatively active social and sporting life. In my opinion the plaintiff has failed to prove that the injury to his left wrist, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as “very considerable” and, certainly more than “significant” or “marked”.
95 For these reasons, the proceeding is dismissed.
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