Seckold v Transport Accident Commission
[2024] VCC 343
•18 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-02612
| ADRIAN SECKOLD | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 March 2024 | |
DATE OF JUDGMENT: | 18 April 2024 | |
CASE MAY BE CITED AS: | Seckold v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 343 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: SERIOUS INJURY – whether serious long-term impairment of function of right wrist – aggravation of pre-existing degenerative changes - relevance of use of pain relief medication
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis with Ms S Fernando | Zaparas Lawyers |
| For the Defendant | Mr P Jens KC with Ms G Cooper | Hall & Wilcox |
HER HONOUR:
1On 12 June 2015, Adrian Seckold celebrated his fiftieth birthday. He was a physically active family man, who enjoyed basketball, fishing and gardening (although he decided to give up the basketball when he turned fifty). He had been married to Bernadette for twenty-three years, had four grown up children of his own, and had also taken in and raised his niece and nephew to adulthood.
2In late April 2016, Mr Seckold handed in his resignation to his then employer, the Victorian Wine Centre. He had worked for over ten years as a chef for the same employer, was unhappy with the new management, and decided to use his long service leave to give himself a bit of a break. On 4 May 2016, he was injured when his motorbike t-boned into a vehicle which pulled in front of him without warning. In July 2016, when still physically and psychologically suffering from the impacts of his motorbike accident, he was diagnosed with prostate cancer. On any view, it was a very challenging three months.
3Mr Seckold has applied for leave to bring proceedings for pain and suffering damages suffered as a result of the motorbike accident. To succeed in this application, he must satisfy the Court that he has suffered a serious long-term impairment of the function of his right wrist as a result of the motorbike accident.[1] This raises three issues:
(a) Did Mr Seckold suffer an impairment of his right wrist as a result of the motorbike accident?
(b) Is the impairment serious, in the sense that the consequences of the impairment are fairly described at least as "very considerable'' and certainly more than "significant" or "marked".[2]
(c) Is the impairment long-term?
[1] See the definition of “serious injury”, s93(17) of the Transport Accident Act 1986
[2] Humphries v Poljak (1992) 2 VR 129
4The Transport Accident Commission (“TAC”) contended that the Court should answer “no” to each of these questions. In doing so, it placed particular reliance on the fact that Mr Seckold had sought no treatment for his right wrist between November 2016 and April 2018.
5For the following reasons, I have concluded that Mr Seckold suffered an impairment to his right wrist as a result of the motorbike accident, in the form of an aggravation of pre-existing degenerative changes in his right wrist. However, I am not satisfied that the impairment is serious. I am also not satisfied that his current level of impairment is long-term.
6First, in person, Mr Seckold impressed me as a straightforward, honest witness, who made some significant and frank admissions and gave evidence without embellishment or exaggeration. His affidavits, on the other hand, were prepared by his lawyers[3] and did not read as though written in his voice, with his words. Mr Seckold struck me as someone who would be heavily guided by his lawyers in relation to the content of his affidavits; and might not object to matters being included in his affidavit which did not fully reflect his experience. As such, I regard his affidavits as less reliable than his oral evidence.
[3]Transcript (T”) 3, Lines (“L”) 16-18
7Second, I accept that Mr Seckold’s right wrist was injured in the motorbike accident, although his right wrist symptoms were only mild and were not significant enough to be given any prominence at the time. I base this finding on my acceptance of Mr Seckold’s basic honesty, together with:
(a) the lack of reference to right wrist pain in the records of Austin Health. This would not be surprising if the pain was mild, particularly given, at the time, there was concern about back pain and right leg weakness (which may have been indicative of more serious issues with his spine);
(b) his general practitioner, Dr Rajeev Sharma, records in his report of 27 November 2023, that “[Mr Seckold] did not present to me with wrist pain”,[4] and there is no reference in Dr Sharma’s clinical notes to right wrist pain on 10 May 2016 or 17 May 2016. However, Dr Sharma recorded injury to “[b]oth wrists” in a certificate of capacity he completed at the consultation on 17 May 2016. Dr Sharma’s failure to record complaints of wrist pain in his clinical notes, or to recall them when writing his report, would not be surprising if the pain was mild; and
(c) Mr Seckold’s osteopath, Stuart Robbins, saw Mr Seckold on 12 May 2016, 17 May 2016 and 26 May 2016. The focus of his clinical notes is on right leg and lower back pain. By 26 May 2016, the lower back pain was described as “quite mild now”.[5] There is no reference to right wrist pain or dysfunction in the quite detailed clinical notes of the three consultations. However, he records that there was visible bruising on the right forearm, of which he has taken a photo.
[4] Plaintiff’s Court Book (“PCB”) 80
[5]Defendant’s Court Book (“DCB”) 73
8Third, I also accept Mr Seckold’s evidence that his right wrist symptoms never fully resolved after the accident. However, to the extent that his affidavits describe constant pain and restricted movement since the accident,[6] or imply that his right wrist has been his “biggest problem”[7] continuously since the accident, I do not accept that this is reliable. Mr Seckold did not report any right wrist pain to his general practitioner between 18 May 2016 and 20 July 2018,[8] despite consulting him in relation to other issues on seven occasions in this period. Mr Seckold’s right wrist symptoms were not significant enough to be recorded in the clinical notes of Mr Robbins on 12 May 2016, 17 May 2016 or 26 May 2016. Right wrist pain and swelling is reported to Mr Robbins in a consultation on 22 November 2016 (three weeks after Mr Seckold had re-commenced employment). However, he did not return to his osteopath for treatment until 18 April 2018; and at that consultation there was no mention of right wrist pain. Mr Seckold accepted, in cross-examination, that this was because, at this point in time, his right wrist pain had not developed enough for him to mention it to his osteopath.
[6] Plaintiff’s first affidavit, affirmed 12 April 2022, paragraph [18] at PCB 15
[7] Plaintiff’s first affidavit, affirmed 12 April 2022, paragraph [17] at PCB 15
[8]There is a reference in the clinical notes on 21 July 2018 to “[p]ain left wrist seeing ortho” at DCB 66. I accept that this should be read as a reference to Mr Seckold’s right wrist.
9Fourth, I do not accept the opinions of Dr Anna Manolopoulos, a medico-legal consultant orthopaedic surgeon retained by Mr Seckold. In her third report, Dr Manolopoulos states:
“… I do note that in my original report, [Mr Seckold] has had two sets of x-rays, the first in 2016 where x-rays of his wrist showed no evidence of arthritis and his most recent ones that show the pathology. The time frame between these x-rays is approximately two years. … .”[9]
[9]Report of Dr Manolopoulos, dated 29 February 2024, at PCB 101
10It was accepted by Mr Seckold that this statement was factually incorrect. There was no x-ray performed of Mr Seckold’s right wrist in 2016. Dr Manolopoulos was provided with a report of an x-ray taken on 4 May 2016 of Mr Seckold’s left hand and wrist, but not one of his right. This is a significant factual error and demonstrates a lack of sufficient care and attention to detail in preparation of the report. Although the error is only expressly included in her third report, it is accompanied by a reference to her original report, and concerns her interpretation of radiology provided to her before the preparation of her original report. Her error may well have influenced the opinions expressed in her first report in addition to those in her third report. In the circumstances, Dr Manolopoulos’s opinion, that there was no pre-existing condition in Mr Seckold’s right wrist and the motorbike accident was the sole cause of Mr Seckold’s current right wrist condition, is not sufficiently reliable to be accepted.
11Fifth, although expressed tentatively, I accept the opinion of treating orthopaedic surgeon, Mr Ash Chehata, that the motorbike accident aggravated pre-existing arthritic changes to Mr Seckold’s right wrist. I also accept the opinion of Mr Chehata that fusion surgery, most likely a full-wrist fusion, is likely to be required at some point. Mr Chehata had the benefit of being Mr Seckold’s treating practitioner and observing his response to treatment over the course of several consultations. His factual assumptions (that Mr Seckold’s right wrist was sore after the accident, although this was not the subject of any radiology at the time) accord with my own factual findings. He erroneously records that Mr Seckold injured his left shoulder four years prior to the motorbike accident, however this error does not logically impact on his conclusions in relation to Mr Seckold’s right wrist.
12Sixth, to the extent of conflict between the opinions of Mr Chehata and the TAC’s medico-legal orthopaedic and upper limb surgeon, Mr Richard Pennington, I prefer the opinions of Mr Chehata. Like Mr Chehata, Mr Pennington concludes that Mr Seckold has a right wrist scapholunate tear and mid carpal osteoarthritis (SLAC wrist – stage 3). In his opinion, this is not related to the accident as “a SLAC wrist can take up to 15 years to develop after a scapholunate ligament tear”.[10] However, Mr Pennington does not expressly consider the possibility that the motorbike accident aggravated pre-existing degenerative changes in Mr Seckold’s wrist. He also assumes that Mr Seckold did not report wrist pain “for many years following the accident”[11] when, in fact, Mr Seckold is recorded as reporting wrist pain in November 2016 and in mid-2018. I have found as a matter of fact, that Mr Seckold’s wrist became symptomatic immediately after the accident and never fully recovered. My factual findings are more consistent with Mr Chehata’s recorded history than that of Mr Pennington.
[10] Report of Mr Pennington, dated 4 February 2024, at DCB 43
[11](Ibid) at DCB 45
13Seventh, it is not enough for Mr Seckold to establish an aggravation of pre-existing degenerative changes in his right wrist ꟷ the onus is on Mr Seckold to establish the extent of the aggravation on the balance of probabilities. There is no expert evidence on this issue. Mr Chehata refers to an aggravation, without expanding on the extent of the aggravation, or expressing any view as to the likely symptoms that Mr Chehata would have experienced in the absence of the motorbike accident.
14Mr Seckold was not symptomatic before the accident, but was mildly symptomatic after the accident. His symptoms were not serious enough for him to seek treatment between 23 November 2016 and his attendance at the Alfred Hospital (initially for an unrelated issue shoulder issue) in April 2018. Even in April 2018, he did not consider his symptoms serious enough to describe to his osteopath during the course of a consultation. However, by August 2018 he had been referred to Mr Chehata, who was describing severe pain and “absolutely no range of movement in the right wrist”.[12] It is likely, on this evidence, that there was a marked deterioration in Mr Seckold’s right wrist symptoms from around 2018. However, it is not clear that this deterioration can be attributed to the motorbike accident (as opposed to the consequences of the pre-existing degenerative changes).
[12]Report of Mr Chehata, dated 27 August 2018, at PCB 61
15Eighth, I accept the evidence of Mr Seckold,[13] that Mr Seckold now suffers a constant ache in his right hand, with occasions of more severe pain, and restricted range of motion. Nevertheless:
(a) he is still able to work as a cook in a childcare centre;
(b) he is still able to fish, although his frequency and enjoyment of fishing has decreased as his wrist has worsened;
(c) he is still able to pursue his passion for gardening with Australian natives, although with some restrictions;
(d) he is still able perform housework and maintenance, although with some restrictions;
(e) there is no suggestion that he is not still able to enjoy quality time with his family and friends;
(f) there is some impact on his sleep, but his evidence in this regard is very general, referring to “often” waking up one or twice during the night. The word “often”, without more, could mean several times a week or it could mean several times a year. He agreed his sleep was also disturbed due to prostate-related issues.
[13] Which is also corroborated by an affidavit of his wife.
16Ninth, I have taken into account not only what Mr Seckold says about the pain, but also what he does about the pain.[14] Mr Seckold did not seek any significant treatment until mid-2018. He declined the option of surgery through the public system. He says that this was because a different form of surgery was recommended by Mr Chehata and the TAC would not fund Mr Chehata to perform the surgery. However, he made no attempt to take this up with The Alfred hospital, or to seek to compel TAC to fund his surgery. Over the years, he has had some acupuncture and hot needling, physiotherapy and chiropractic treatment. But it has been sporadic. Despite stating that he found acupuncture provided some short-term relief, he did not return to it post-COVID.
[14]Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraph [4]
17When Mr Seckold returned to work after his accident in 2016, it was as a cook in a childcare centre rather than a chef. He gave evidence that this change from his previous occupation was because of the problems with his right wrist. Mr Seckold appeared to be a person who had the willingness and ability to seek out appropriate medical and allied health assistance when required. If this change from his previous occupation were genuinely a significant loss to him, and if this change were indeed brought about solely as a result of his right wrist, he would have done more to seek treatment before changing occupations. There are two explanations ꟷ either he did not view the new role as a significant detriment to him; or it was not his right wrist pain which motivated the change in occupations. Before the accident, Mr Seckold had already handed in his resignation as a chef. In re-examination, Mr Seckold gave evidence of how much less physically demanding working as a cook in a childcare centre was. He did not give express evidence (either orally or in his affidavits) of regret at no longer being able to work as a chef. Nor did he give any evidence of any negative financial impact from working as a cook in a childcare centre; or expected difficulty retaining or finding work as a cook in a childcare centre. In the circumstances, I am not satisfied that it was a significant detriment to Mr Seckold to change his occupation. If I am wrong about this and it was a significant detriment, his failure to seek treatment for his right wrist immediately prior to returning to work as a cook rather than a chef leads to the conclusion that the change in occupations was motivated by some issue other than his right wrist pain (such as concerns about his prostate issues or mental health).
18I have considered the fact that Mr Seckold takes regular over-the-counter pain medication but no prescription pain medication. This fact does not provide a great deal of assistance in assessing the gravity of Mr Seckold’s reported pain. The strength of pain medication taken by a plaintiff (and particularly whether opiate medication was being taken) was once considered a significant factor in assessing the seriousness of an injury. The time has come where judicial notice can be taken of the harm which has been caused by the over-prescription of pain medication, and of the potential ineffectiveness of opiate medication, in particular, in treating chronic pain. Prescription practices have changed, and advisedly so. In the circumstances, the fact that a plaintiff is “merely” taking over-the-counter pain relief (and then only sporadically) cannot be fairly relied upon as telling against the genuineness or significance of a plaintiff’s experience of pain. On the other hand, given the ubiquitousness of over-the-counter pain relief, such as Panadol (including Panadol Osteo) and Nurofen, the taking of such medication provides little support for the genuineness or gravity of a plaintiff’s experience of pain.
19Tenth, I have considered the very real prospect that Mr Seckold will have surgery to his right hand in the future. On the one hand, a need for surgery, particularly fusion surgery which will reduce ongoing function, is a significant consequence which should be taken into account when assessing the seriousness of the impairment suffered by Mr Seckold. On the other, that surgery is recommended by Mr Chehata as a means of reducing Mr Seckold’s ongoing pain and dysfunction. In the circumstances, I am not satisfied that Mr Seckold’s current levels of pain will be a long-term consequence of his impairment.
20This is not an easy case. It is not enough for Mr Seckold to establish that he has suffered an impairment which has significant ongoing impacts on his life. He must show that he has suffered a serious long-term impairment of a body function, in the sense that the consequences of that impairment are “very considerable”. This requires a subjective assessment of the consequences of the impairment to Mr Seckold, which may then be compared (objectively) to the range of possible impairments. As this is an aggravation case, the Court must look only to the extent of the aggravation, which in this case has not been clearly established on the evidence.
21However, even taking into account the whole of Mr Seckold’s current right wrist symptoms, having regard to Mr Seckold’s personality, family connections, stage of life, occupation and recreational activities, I am not satisfied the consequences of this impairment are very considerable and more than merely significant or marked. I am not satisfied that Mr Seckold has suffered a serious injury.
22The proceeding is dismissed.
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