Sharif v Transport Accident Commission
[2021] VCC 75
•15 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-02543
| MOHAMMED ZAYD SHARIF | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 February 2021 (via Zoom hearing) | |
DATE OF JUDGMENT: | 15 February 2021 | |
CASE MAY BE CITED AS: | Sharif v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 75 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – consequences and impairment as a result of a closed head injury – whether the consequences are “serious” under the Act
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129
Judgment: Application for leave to bring proceedings for damages arising from a transport accident which occurred on 15 October 2013 dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Mr T Nathanielsz | Zaparas Lawyers |
| For the Defendant | Mr P D Elliott QC with Ms S Manova | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 The plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 15 October 2013 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under ss(4)(d) unless it is satisfied that the injury is a ‘serious injury’.”
3 The definition of “serious injury” relied upon by the plaintiff is under s93(17):
“a serious long-term impairment or loss of a body function; … .”
4 In this application, the plaintiff seeks a serious injury certificate from the Court for the loss of body function arising from a closed head injury, resulting in loss of executive function and deterioration in memory and concentration.
5 The enquiry under s93(17)(a) of the Act focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function and then, by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by ss17(a) can have its seriousness measured, in part, by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute, or be the producer of, an impairment of the body function.[1]
[1]Richards v Wylie (2001) 1 VR 79
7 In this application, the plaintiff did not rely upon a mental response to the alleged physical impairment arising from his closed head injury.
8 In forming a judgment as to whether the consequences and the injury are “serious”, the question to be asked is:
“… can the injury, when judged by a comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[2]
[2][1992] 2 VR 129
9 In this application, the plaintiff swore and relied upon two affidavits dated 24 March 2020 and 29 January 2021. The plaintiff also gave evidence and he was cross-examined by Mr Elliott QC, for the defendant.
10 The plaintiff also relied upon an affidavit sworn by Mr Faiyaz Ali on 30 January 2021, an affidavit of Mrs Dilan Sahin, the plaintiff’s wife, sworn on 25 January 2021 and an affidavit of Mrs Melissa Jayne Sharif, the plaintiff’s mother, sworn 25 January 2021. The defendant did not require any of those deponents to be cross-examined in this application.
11 The plaintiff also relied upon an affidavit sworn by Mr Anthony Scott on 25 January 2021. Mr Scott, who was the plaintiff’s employer, was required for cross-examination. Mr Elliott QC was granted leave to cross-examine Mr Scott.
12 In addition to the sworn affidavits and sworn evidence given in this case, both parties relied upon medical reports and other medical material tendered during the course of the proceeding. I have read all of the tendered medical material and will refer to the material that is relevant to the determination of this application in these reasons.
13 The plaintiff tendered the following documents in support of his application:
·Exhibit A – the Plaintiff’s Court Book (“PCB”), pages 12-19, pages 24-35, pages 43-44, pages 49-50, pages 59-94 and pages 143 and 147-148;
·The plaintiff also relied upon the Supplementary Court Book, pages 159-161.
14 The defendant tendered and relied upon the following documentation:
·Exhibit 1 – the Plaintiff’s Court Book, pages 95-111.
15 The plaintiff conceded that there was no mention of his memory difficulties or any treatment in relation to his impaired memory or concentration in the Craigieburn Super Clinic general practitioner notes that were contained in the Defendant’s Court Book. In those circumstances, the defendant did not tender the entirety of the Craigieburn Super Clinic notes.
Issues identified by the parties
16 Mr McGarvie QC, on behalf of the plaintiff, identified the injury relied upon in this application as being a closed head injury to the plaintiff as a result of the transport accident.
17 The consequences flowing from the closed head injury were a loss of executive function and a diminution of the plaintiff’s concentration and memory which affected his employment and general living circumstances.
18 Specifically, Mr McGarvie QC did not rely upon the orthopaedic injuries to the plaintiff’s right hip or shoulders which occurred in the course of the transport accident. The plaintiff also did not rely upon any psychiatric or psychological condition arising directly from the transport accident.
19 Mr Elliott QC, on behalf of the defendant, stated that the consequences arising from the closed head injury were not sufficient to reach a statutory requirement of “serious injury” in this case. In his words, he stated it was a “range case”.
20 The plaintiff’s credibility was not in question as far as the defendant was concerned.
The Plaintiff’s background
21 The plaintiff was born in 1990. At the time of the hearing, the plaintiff was thirty years old. At the time of the transport accident, the plaintiff was twenty-three years old.
22 The plaintiff lives with his wife. The plaintiff’s parents live over the road from his home. The plaintiff enjoys good support, both from his parents and from his wife.
23 The plaintiff completed Year 12 at secondary school level. Upon completion of his school education, he then commenced an apprenticeship in graphic print press, which he did for a total of three years. He was unable to complete that apprenticeship because his employer went out of business.
24 The plaintiff then went into a traineeship in warehouse management logistics, which he did for approximately ten months, followed by a period of six months as a plasterer. Ultimately, the plaintiff obtained employment in 2012 at Bunnings in Craigieburn as a casual salesperson. At the time of the transport accident, the plaintiff was working at Bunnings and also as a personal trainer.
25 After the transport accident, the plaintiff returned to work initially on light duties at Bunnings Craigieburn. He also worked as a casual employee of a signage business conducted by his cousin.
26 Unfortunately, in early 2015, the plaintiff’s then fiancée died suddenly. The plaintiff received some grief counselling as a result of that death.
27 The plaintiff then resumed his employment with Bunnings after a period of time working for his father in a property management business. The plaintiff remained in his employment with Bunnings until May of 2019. The plaintiff was married in 2019 and in August 2019, travelled to Turkey for what was to be his second marriage to the same wife. Mr Elliott QC referred to this as a “wedding moon”.
28 The plaintiff had then worked for Sydney Tools as a salesman. After a period of time, he changed his employment to Total Tools in Cooper Street, Epping in January 2020. At the time of this application, the plaintiff was an employee of Total Tools in Epping. In September 2020, the plaintiff was appointed on a temporary basis as a warehouse manager at Total Tools. The plaintiff’s case was that due to his inability to remember things and concentrate, he was unable to maintain his position as the warehouse manager. Mr Scott gave evidence on the issue of the plaintiff’s employment as a warehouse manager and I shall return to this later in my reasons for decision. At the time of the application, the plaintiff was employed as a salesperson at Total Tools and was considered a valued employee.
The transport accident involving the Plaintiff
29 In his affidavit dated 24 March 2020, the plaintiff set out that the transport accident occurred at the time of the collision on 15 October 2013, just before midnight. He stated that he was travelling to a petrol station to fill up the car prior to using his vehicle the following day. He says that he approached a roundabout at Bridgewater Road and Newlyn Drive in Craigieburn when another car collided into his car on the right-hand-side at a roundabout. The other car involved in the collision was involved in a car chase.
30 The plaintiff was taken by ambulance from the scene of the accident to the Northern Hospital. He was subsequently moved to the Royal Melbourne Hospital. The plaintiff had little direct memory of the accident itself as a result of the injuries he received in that accident.
31 The plaintiff was diagnosed with the following injuries:
· A head injury involving a subdural haemorrhage
· A fracture of the right hip
· Bruising to the upper leg
· Right shoulder bursitis
· Pain in the neck.
Medical treatment received by the Plaintiff for the closed head injury as a result of the transport accident
32 The plaintiff was taken from the scene of the transport accident by ambulance to the Northern Hospital. At the Northern Hospital, a CT scan was taken of the plaintiff’s brain. The findings on that CT scan were as follows:
“FINDINGS
Image quality is degraded due to morion.
There is a small subdural haematoma tracking along the left side of the tentorium. This measures approximately 3.5 mm in thickness.
There is no surface collection evident.
There is somewhat heterogeneous parenchymal attenuation which is largely the result of movement artefact. Small areas of contusion particularly within the right frontal lobe difficult to exclude due to this.No intracerebral haematoma is demonstrated.
CERVICAL SPINE:
TECHNIQUE
Multislice spiral scans have been obtained throughout the cervical region. 2 mm axial, sagittal and coronal reformations have been provided for review.
FINDINGS
There is satisfactory alignment. No acute bony injury is demonstrated. The prevertebral soft tissues are normal in appearance.
CONCLUSION
No cervical spine injury is demonstrated.”[3]
[3]PCB 143
33 On the following day, a further CT scan was conducted at the Northern Hospital. The findings on that occasion were compared with those taken on 15 October 2013 referred to above. The findings were as follows:
“Findings:
Comparison made to external CT dated 15 October, 2013.
Subdural haematoma upon the left tentorium cerebelli has reduced in thickness since yesterday. The smaller right tentorial subdural is stable. No new intracranial haemorrhage is demonstrated. No acute ischaemia, hydrocephalus or other new findings.”[4]
[4]PCB 147
34 The plaintiff was then taken to the Royal Melbourne Hospital, where he remained for observation for a few days.[5] The plaintiff was then sent home.
[5]PCB 14
35 On 14 November 2013, a further CT scan of the plaintiff’s brain was conducted. The result of that CT scan was that there was no residual subdural haemorrhage demonstrated. The conclusion of the CT scan was a normal study.[6]
[6]PCB 148
36 In the evidence of the plaintiff, he was cross-examined about any treatment that he received by medical practitioners in respect of his head injury or resulting cognitive deficit. The plaintiff agreed that there was no record in the medical notes of him complaining of memory difficulties to a general practitioner.[7] The plaintiff did say that he thought he had told a general practitioner that he had difficulties with his memory. The evidence did not reveal any record of such a complaint being made.
[7]Transcript (“T”) 16
37 The plaintiff agreed that he had not received any treatment from a neurologist, a neuropsychologist, or a psychiatrist as a result of his closed head injury.[8]
[8]T17
38 The only time the plaintiff has seen a neurologist, a neuropsychologist or a psychiatrist is for the purposes of medico-legal reporting in this application.
The medical opinions
The Plaintiff’s doctors
Dr Linda Byrne, neuropsychologist
39 Dr Linda Byrne examined the plaintiff and prepared two reports dated 10 June 2017 and 11 November 2020 for the purposes of this application.
40 In her first report, Dr Byrne was of the opinion that the plaintiff was not giving his best effort in respect of the tests applied by her.[9] Nevertheless, Dr Byrne noted, in respect of the memory and verbal learning section of her report, as follows:
“… Compared to others his age, Zayd’s auditory memory capacity was in the Low Average to Average range (25th percentile), indicating a mild weakness in this area.
Zayd’s immediate recall of anecdotal material (short stories) was in the Average range (50th percentile). His delayed recall of this information was diminished and was in the Low Average range for his age (5th percentile). In contrast his recognition of this information after a delay was actually in the High Average range (>75th percentile). This indicates that in spite of a reduced ability to recall complex verbal information, with appropriate cues, he can recall details at a rate that is slightly better than expected given his age. … .”[10]
[9]PCB 64
[10]PCB 65
41 In the more recent report dated 11 November 2020, Dr Byrne took a history from the plaintiff that he was experiencing lapses in attention and poor memory. The plaintiff also complained of sleep disturbance.[11]
[11]PCB 73
42 Under the heading of “Memory and verbal learning”, the conclusion by Dr Byrne was that the plaintiff’s performance on the list of learning tasks represents an improvement when compared to his performance in 2017.[12]
[12]PCB 76
43 Under the heading of “Attention, concentration and processing speed”, Dr Byrne concluded that the plaintiff’s results suggest that he has a mild to moderate difficulty with complex visual working memory tasks and that there has been no change in this area when compared to his performance in 2017.[13] Dr Byrne concluded that the plaintiff’s working memory is reduced, as is his processing speed. He has mild to moderate difficulties in relation to tasks of attention.[14]
[13]PCB 77
[14]PCB 77
44 Under the heading of “Executive functioning”, Dr Byrne’s opinion was that overall, the plaintiff had a moderate to severe deficit across the task of executive functioning.[15]
[15]PCB 77
45 Dr Byrne’s conclusion was that the plaintiff had improved between her testing in 2017 and 2020. She stated as follows:
“Many of the difficulties that Zayd reported in 2017 have either resolved, or improved quite substantially. Particularly in relation to his psychological presentation. He still reports irritability, mild levels of depression, and sleep disturbance, but said that he manages these better than he did in the past. He said that he is very hopeful for the future. His grief reaction to relation to the death of his fianc[é]e has now resolved. He does continue to report health related concerns.
On testing, Zayd demonstrated reductions in his attentional abilities (including working memory), processing speed and executive function. His working memory performance was worse on this occasion than in 2017. On the day of the assessment, there was some noise outside of the consulting rooms, Zayd is prone to distraction and this may have contributed to his poorer score on the day. Some areas of his cognitive functioning have improved since 2017. Most notable is his improved performance on tasks of learning and memory. As noted, Zayd has difficulty sustaining his attention and is likely to experience this as memory lapses from time-to-time. However, he does not have a primary memory deficit. Zayd suffered a traumatic brain injury as a result of his accident in 2013 and it is likely that his cognitive deficits are the sequelae of the 2013 accident. I reported in 2017 that the results of testing at that time were unreliable due to evidence of insufficient effort being applied to some tasks. This was not the case during the current assessment. In my opinion, the current results are a reliable estimate of his current level of functioning.”[16]
[16]PCB 78
46 Dr Byrne diagnosed the plaintiff as suffering from a “Mild Neurocognitive Disorder due to a Traumatic Brain Injury”. She described this injury as a modest cognitive decline from a previous level of performance in the area of working memory, processing speed, attention and executive functioning.[17]
[17]PCB 79
47 In respect of the plaintiff’s cognitive deficits, Dr Byrne’s opinion was that there was no doubt that it had some impact on his life based on his self report but that those impacts do not impact on his quality of life in any significant way.[18]
[18]PCB 79
Professor Stephen Davis, neurologist
48 Professor Davis examined the plaintiff on two occasions and prepared two reports as a result of those examinations, dated 16 November 2017 and 21 October 2020.
49 In his first report, Professor Davis noted the plaintiff’s complaints of having a definite and quite distinct change in his memory. The plaintiff also complained of headaches and migraines before the accident and said that these had occurred on a weekly basis pre-dating the accident and had roughly occurred at the same frequency.[19] After his examination, Professor Davis gave the following opinion:
“3.2 Diagnosis and Clinical Impressions
He clearly had a significant head injury and has been left with mild neuropsychological impairment. He was quite cooperative today without evidence of suboptimal effort. I think his description of difficulties recalling tasks and particularly multitasking are perfectly consistent with the nature of this head injury. He nonetheless can perform well in his work, perhaps not as well in some respects as he did before the accident.”[20]
[19]PCB 85
[20]PCB 85
50 The plaintiff was then examined by Professor Davis in October 2020. After the examination in October 2020, Professor Davis gave the following opinion:
“He sustained a significant head injury and has been left with mild neuropsychological impairment. I would confirm my view that his description of difficulties recalling tasks and particularly multitasking are perfectly consistent with the nature of this head injury. He nonetheless can perform well in his work, and indeed has essentially had a promotion since the accident at Bunnings in the first instance and now in this new role at Total Tools. His work performance seems to be good and he is able to compensate for his mild memory deficits.”[21]
[21]PCB 92
51 Professor Davis noted that the psychological features complained of by the plaintiff were fairly minimal.
Dr Albert Kaplan, psychiatrist
52 The plaintiff was examined by Dr Albert Kaplan for the purposes of this application. Dr Kaplan prepared two reports dated 29 November 2016 and 21 December 2020. In this case, the defendant tendered these two reports from the Plaintiff’s Court Book.
53 In the report dated 29 November 2016, the plaintiff gave a history to Dr Kaplan that he can be forgetful at times; however, this does not affect his work, and his concentration was intact.[22] Dr Kaplan diagnosed the plaintiff as suffering from traumatisation features that were not of sufficient severity to warrant a diagnosis of Post-Traumatic Stress Disorder. This diagnosis related specifically to the psychological or psychiatric aspect of an application for serious injury. In this case, the plaintiff had abandoned the application for serious injury in respect of psychological and psychiatric features or consequences.
[22]PCB 100
54 In a report dated 21 December 2020, Dr Kaplan noted the plaintiff’s history in respect of his work as follows:
“… Earlier this year, he obtained employment with a similar company, Total Tools, working on a full-time basis and he commented ‘l love it. My boss is very supportive. He helps me a lot.’ He stated that he has found his work rewarding and has received a promotion.”[23]
[23]PCB 108
55 In the history taken from the plaintiff by Dr Kaplan, the plaintiff reported that his libido is normal. He enjoyed an active social life and maintained contact with his friends by telephone during the pandemic-related lockdown. His concentration is normal. He reported that his memory is not 100 per cent; however, he uses strategies to deal with this problem and his employer is helpful.[24]
[24]PCB 108
56 In the Opinion section of his report, Dr Kaplan stated that the plaintiff’s psychiatric condition has not had any significant affect upon the quality of his life and that the plaintiff did not require any psychiatric treatment. He noted that the plaintiff had continued to have some difficulty with his physical conditions related to his shoulder and hip but that those physical injuries did not cause any depression or anxiety in respect of the plaintiff.[25]
[25]PCB 109
57 The defendant relied on the history to Dr Kaplan to set out the reporting by the plaintiff that his concentration had not been affected and that he had managed his memory difficulties by strategies developed which assisted him at his work.
The credit of the Plaintiff
58 In this case, there was no attack on the plaintiff’s credit by the defendant. The only issue raised in the accuracy of the plaintiff’s reporting to doctors and in his evidence to the Court was about the level of impact on his concentration and the working memory and executive function as a result of the closed head injury.
59 I find that the plaintiff was doing the best he could to give an accurate description of his injuries and the impact and consequences of the closed head injury to the Court.
The consequences to the Plaintiff of the closed head injury
60 The plaintiff relied upon his two affidavits sworn on 24 March 2020 and 29 January 2021, together with his evidence given during the course of the application. The plaintiff also relied upon affidavits of Faiyaz Ali sworn on 30 January 2021, an affidavit of Dilan Sahin sworn on 25 January 2021, and an affidavit of Melissa Jayne Sharif sworn on 25 January 2021. The plaintiff also relied upon the evidence of his employer, Anthony Scott, given during the course of the application, together with the affidavit of Mr Scott dated 25 January 2021.
61 I have read the affidavits relied upon by the plaintiff and noted the evidence given during the course of the application.
62 In his first affidavit,[26] the plaintiff set out the consequences arising from the injuries received as a result of the transport accident.
[26]at paragraph 40, sub-paragraphs (a)-(o)
63 In the course of submissions, Mr McGarvie QC, on behalf of the plaintiff, relied upon the consequences of:
· sleep
· concentration and memory
· executive functioning
· migraines
· housework
· emotional response
· relationship with his wife
· work.
Sleep
64 In his affidavit sworn on 24 March 2020, the plaintiff stated that he is a light sleeper since the accident. He states that he was previously a good sleeper but now woke during the course of the night worrying about things like the future. The plaintiff then went on in the same affidavit to state that one of the reasons he wakes up during the course of the night is because of the pain that he experiences in relation to his shoulders and neck. This latter reason for sleep interruption is not related to the closed head injury. The plaintiff gave a history to Dr Kaplan that he, on occasion, took Restavit to assist him with sleep.
65 In his evidence, the plaintiff stated that after he had left hospital, the instructions [from the nurses] were, to his mother and sister who were looking after him, to wake him every three hours due to the head injury. He says that he has, since that time, always had interrupted sleep. I note that by November 2013, the plaintiff’s subdural haemorrhage had completely dissipated and there was a normal CT brain examination. I do not accept the explanation by the plaintiff that he has developed a habit of interrupted sleep as a result of the initial instructions for care arising from his closed head injury. The plaintiff’s wife, in her affidavit, supports the allegation made by the plaintiff that his sleep is interrupted and sporadic.
66 I am not satisfied on the evidence in this case, that the closed head injury suffered by the plaintiff in 2013 is a cause of his stated interrupted sleep patterns. In his own affidavit, the plaintiff says that the pain to his neck and shoulders is a cause of waking him during the course of the night.
67 I am not satisfied that the interruption to sleep is a consequence of the closed head injury to the plaintiff which he received in the transport accident.
Concentration and memory
68 The plaintiff, in his affidavit dated 24 March 2020, stated that he had problems with concentrating and becoming more forgetful. He said that he makes a lot of mistakes at work as a result of that problem.
69 Mr Scott, his employer, gave evidence that the plaintiff did suffer from what appeared to be a compromised memory. Nevertheless, the plaintiff was originally employed as a salesperson in January of 2020 and subsequently, promoted in a temporary position of warehouse manager in September 2020. The memory and concentration difficulties complained of by the plaintiff would have been the same from January right through to the current time. Despite those difficulties, his employer, Mr Scott, decided to give the plaintiff an opportunity to work as the warehouse manager on a temporary basis. It is also part of the evidence that the plaintiff has developed a number of strategies to assist him with his lack of memory. I accept that the plaintiff may suffer from a compromised memory but it is of a very mild nature and not to a level or degree where it could be properly described as at least a very considerable consequence for him.
70 The neuropsychologist’s assessment of the plaintiff’s memory and concentration is described as being mild to moderate, and that is the only evidence that attempts to quantify the level of disability or consequence of the closed head injury to the plaintiff.
71 I also note the history that the plaintiff gave to Dr Kaplan, as detailed in Dr Kaplan’s report of 29 November 2016, that he was forgetful at times, however, this did not affect his work. The plaintiff stated that his concentration was intact. In Dr Kaplan’s later report dated 21 December 2020, the plaintiff stated that his concentration was normal and that whilst his memory is not 100 percent, he uses strategies to deal with his problem and his employer is helpful. I accept that the histories given to Dr Kaplan are a true reflection of the plaintiff’s position in respect of concentration and memory.
72 In the work setting, the plaintiff uses a personal computer on a daily basis in order to assist him in his work.[27] At home, he uses a whiteboard to remind him of the matters he is to deal with of a domestic nature.[28]
[27]T21
[28]T22 and PCB 157
Executive functioning
73 The plaintiff relies on a diminution of his executive functioning as a result of the closed head injury to establish a serious injury certification in this case. In particular, he relies upon the opinion of Dr Byrne that he has a moderate to severe deficit across the task of executive functioning. The plaintiff also relies upon the evidence of Mr Scott to establish that he was unable to do a number of tasks at the one time which had been exhibited during his time as a temporary warehouse manager. The examples given by Mr Scott were that the plaintiff would start one task, then be distracted onto another task and forget to come back to the initial task, thus exhibiting an inability to carry out a number of matters effectively at the same time. The evidence of Mr Scott was that the plaintiff would work additional hours, approximately eight hours per week, to ensure that he had completed his work appropriately. There was no evidence in this case that the plaintiff worked these additional hours without being paid.
74 I accept the evidence of Dr Byrne and Professor Stephen Davis that the loss of executive functioning can result from a closed head injury similar to the one suffered by the plaintiff in this transport accident. The plaintiff has adopted measures to overcome his deficit in respect of executive functioning and been able to maintain full-time employment and indeed, be promoted to the position of warehouse manager, albeit for a short period of time. It is clear on the evidence that the plaintiff is a valued employee at Total Tools and has been able to maintain his employment and gain the full support of Mr Scott.
75 The evidence in relation to the consequences of the plaintiff’s executive functioning at home in a domestic setting do not amount to a significant consequence. In conclusion, I find that the diminution of the plaintiff’s executive functioning capacity as a result of the closed head injury received in the transport accident does not amount to a very considerable consequence for him. I do accept that it is an inconvenience but he has been able to overcome that inconvenience by applying alternative approaches to his work and his activities at home.
Migraines
76 In his affidavit dated 24 March 2020,[29] the plaintiff states that he previously had migraines on a monthly basis but since the transport accident, has them once or twice a week now. He takes Panadol or Mersyndol to alleviate the pain. I note in his affidavit when he refers to taking Mersyndol he is also taking that medication for his right hip pain which is not part of this serious injury application.
[29]at paragraph 40, sub-paragraph (d)
77 In this case, there was no evidence that the plaintiff’s employment was limited by his experience of migraines. I do not accept that the plaintiff’s evidence in relation to the increase in migraines has amounted to a very considerable consequence for him. The plaintiff has been able to live a normal life since the transport accident and despite many setbacks in relation to his personal circumstances, is now a married man, living in a house opposite his parents. He is engaged in full-time employment.
Housework
78 Mr McGarvie QC, on behalf of the plaintiff, stated that the plaintiff was unable to do certain tasks around the house as a result of the closed head injury as a result of the transport accident. In his affidavit of 24 March 2020, the plaintiff sets out how he is unable to clean the gutters for his parents. The reason for him being unable to carry out that task is that he was not as good on his feet and as such may fall from a ladder. There was no evidence in this case that any side effect of the closed head injury caused an interruption to the plaintiff’s balance, or any other explanation for why he was unable to do the work. It was submitted on behalf of the defendant that the plaintiff’s inability to carry out that type of housework related to his physical injuries, in particular to his hip, rather than anything to do with the closed head injury the subject of this application. I do not accept that the inability of the plaintiff to engage in cleaning out the gutters for his parents amounts to a significant consequence for him which is related to the closed head injury.
Medication
79 Whilst Mr McGarvie QC did not specifically deal with the issue of medication, I note that during the course of the evidence, that the plaintiff has stated that on occasion he takes Mersyndol and Panadol for pain relief, and Restavit to assist with his sleep. These medications are all over-the-counter medications and the ingestion of them was sporadic and on an ‘as needs’ basis. I am not satisfied on the evidence before the Court that the need for the plaintiff to take medication to assist him in any way amounts to a significant consequence arising out of the closed head injury that he received in the transport accident.
Emotional response
80 Mr McGarvie QC relied upon a statement made by Dr Linda Byrne in her second report, and I quote:
“… His ability to inhibit his most automatic response was also quite poor … .”[30]
[30]PCB 77
81 Mr McGarvie QC relied upon this statement to submit that the closed head injury was a cause of the plaintiff’s emotional upset. The emotional upset was said to manifest itself as an argumentative situation with his wife; alternatively, what was referred to as “road rage behaviour” whilst driving a car.
82 The statement relied upon by Mr McGarvie QC in the report of Dr Byrne was placed in between two other statements which referred specifically to executive functioning. I do not accept that Dr Byrne was saying in her report that the emotional response that the plaintiff now has, was in any way a result of the closed head injury.
83 Dr Kaplan, psychiatrist, had assessed the plaintiff, and he referred to an explanation on a psychological basis that the plaintiff would react to bad driving of others that may have put him at risk whilst he was on the road.
84 I do not accept the submission that the emotional responses of the plaintiff have been impacted by the closed head injury or are a consequence of that head injury received by the plaintiff in the transport accident.
Relationship with his wife
85 The plaintiff’s wife, Dilan Sahin, gave evidence through an affidavit dated 25 January 2021. The general tenor of Mrs Sahin’s affidavit is the forgetfulness of the plaintiff and the need for her to give him constant reminders. I note that the plaintiff met his wife a considerable time after the transport accident. She would have always known him only to be a forgetful person if that was an accurate assessment. In particular, she made note of the fact that he had forgotten a change of outfit on the day of his wedding. I do not accept that that is a significant consequence. I do not accept that the plaintiff is the only person to have forgotten something in the rush to make a wedding celebration or ceremony. I do not accept that the plaintiff’s wife’s description of him being a light sleeper is a direct consequence of the closed head injury from the transport accident.
Work
86 The plaintiff has maintained his employment since January 2020. I have had the advantage of hearing Mr Scott describe the plaintiff and the nature of him being a valued worker. It was clear from the evidence that the plaintiff was promoted as a temporary warehouse manager in September 2020. The position was always a temporary position. Mr Scott stated that he was giving the plaintiff an opportunity to advance himself because he was such a good worker. In the end the business, as decided by Mr Scott, needed a truly specialised logistics and warehouse manager at the place of business. The plaintiff has returned to his original job as a sales representative and is a valued employee in that capacity. I do not accept that there has been any consequence to the plaintiff as a result of his closed head injury on his employment situation. The plaintiff is clearly a dedicated and conscientious employee and has always been that at Total Tools.
Conclusion
87 I accept that the plaintiff did suffer a closed head injury in the course of the transport accident. I accept that he has had some mild consequences as a result of that closed head injury which continue to the present time and will continue into the foreseeable future. I am not satisfied on the evidence before the Court that the consequences could properly be described as “at least very considerable and certainly more than significant or marked” as required under the legislation.
88 I dismiss the plaintiff’s application for serious injury certification arising out of a closed head injury which he suffered in the course of a transport accident on 15 October 2013.
89 I will hear the parties on costs.
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