Smith v Transport Accident Commission
[2024] VCC 1923
•11 December 2024
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-22-05486
| GERALDINE WENDY SMITH | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 16 October 2024 | |
DATE OF JUDGMENT: | 11 December 2024 | |
CASE MAY BE CITED AS: | Smith v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1923 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – whether consequences of transport accident “serious” – relevant principles
Legislation Cited: Transport Accident Act1986, s93(4)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Demmler v Transport Accident Commission [2018] VSCA 284; Abbas v Transport Accident Commission [2015] VSCA 217; State of Victoria v Glover [1998] VSCA 93; Petkovski v Galletti [1994] 1 VR 436; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission [2005] VSCA 1; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Hooley v Transport Accident Commission [2019] VSCA 263; Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab SC with Ms N Crowe | Slater & Gordon Ltd Lawyers |
| For the Defendant | Ms F A L Ryan SC with Ms M Williams | Solicitor to the Transport Accident Commission |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”), for injury suffered by the plaintiff in a transport accident which occurred on 3 March 2019 (“the transport accident”).
Relevant legal principles
2Section 93(6) of the Act provides that a court must not give leave under ss(4)(d) unless it is satisfied that the injury is a “serious injury”.
3The definition of “serious injury” as set out in s93(17) of the Act is, relevantly to this application:
“‘Serious injury’ means—
(a) serious long-term impairment or loss of a body function … .”
4The plaintiff claims that by reason of the transport accident, she suffered injury to the function of her left upper limb (in particular the left thumb and left hand). An initial claim under paragraph (c) of the definition of “serious injury” was abandoned by the plaintiff.
5In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is: “can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[1] It has been held that the relevant consequences to a plaintiff will relate to pecuniary disadvantage and/or pain and suffering.[2]
[1]Humphries and Anor v Poljak [1992] 2 VR 129 at 140.
[2]Humphries and Anor v Poljak (ibid) at 140; see also Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [52] and [56]-[57]; Abbas v Transport Accident Commission [2015] VSCA 217 at paragraphs [36]-[39]; State of Victoria v Glover [1998] VSCA 93 at paragraph [30].
6In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of “serious injury”, as set out in s93(17), the relevant injury must also be long term.
7The plaintiff bears the burden of proof on the application. The standard of proof is on the balance of probabilities.
8The Court must assess whether the injury is “serious” for the purposes of the Act, as at the time the application is heard.[3] In assessing the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the transport accident.[4] It has been held that the task of assessing the pain and suffering consequences of an injury is largely a question of impression and value judgement.[5]
[3]See s93(6) of the Act, which states that leave must not be given by a court unless the court “is satisfied that the injury is a serious injury”. I take that expression to mean that the injury is “at the time at which the application is heard,” a “serious injury” for the purposes of the Act.
[4]Petkovski v Galletti [1994] 1 VR 436 at 442; Demmler v Transport Accident Commission (supra) at paragraph [52].
[5]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67].
9In determining the application, the Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[6]
[6]See generally Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26].
10It is well understood that a person who is injured is to be compensated only for such injuries as are proven to have resulted from the relevant accident.[7] To undertake this task, the plaintiff must establish what injury was caused by the transport accident. The Court must then determine the consequences of that injury to the plaintiff, by comparing the plaintiff’s condition before and after that injury.[8] If the Court is satisfied that the additional impairment is “serious” and long term, then the plaintiff will have demonstrated that she is suffering from a “serious injury” under the Act.[9]
[7]Petkovski v Galletti (supra).
[8]Ibid, at 444.
[9]Supra.
11It was common ground at the hearing, that the plaintiff had a complex health history prior to the transport accident. I have set out the evidence concerning these matters in this judgment.
12The plaintiff relied upon three affidavits, gave viva voce evidence and was cross-examined. She also relied upon affidavits from her daughters, Ms Sarah Smith and Ms Rebecca Hadfield. These witnesses were not required to attend for cross-examination.
13In addition, both parties relied upon medical reports and other materials which were contained within Court Books filed before the hearing.[10]
[10]Specified pages of the Plaintiff’s Court Book were together marked as exhibit (“Ex”) P1. Specified pages of the Defendant’s Court Book were together marked as Ex D1.
14I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
Background
15The plaintiff is presently aged fifty-nine, having been born in December 1964. She has two daughters and four grandchildren.[11] She completed Year 10 at Sacred Heart High School. She worked as a cashier at Coles from about 1981 until 1987. She then raised her children.
[11] Ex P1, p10.
16In 2001, the plaintiff commenced employment with the City of Ballarat as a school crossing attendant. At the time of the transport accident, she was working 10 hours per week in two one-hour shifts per day,[12] helping children to cross the road.[13]
[12] T39, L11-17.
[13] Ex P1, p11.
The transport accident
17The plaintiff described the transport accident in the following way:
“ On 3 March 2019, at approximately 9.45am, I was a front seat passenger in a motor vehicle … driven by my brother Daniel Rice. Another vehicle … travelling down a side street failed to give way causing a collision at the intersection of Midland Highway and Morris Street, Daylesford. I was wearing a seat belt. … As a result of the accident … I struggled to breathe. I lost consciousness, fractured my left thumb, right arm, four ribs on my right side and two left toes and injured my back and left arm …
After the accident, I was in significant pain … When I came to, I remember my left thumb and right hand being swollen …
I was taken by Ambulance to the Ballarat Base Hospital. I was admitted to hospital and x-rays were conducted. I understand an x-ray of my left hand and wrist revealed a displaced impacted intraarticular fracture at the base of the 1st metacarpal. An open reduction and internal fixation was performed on my left thumb. After the operation, I was required to keep my left hand elevated in a sling for a number of weeks …
In November 2019, … [hand therapist Jennifer Kaess] recommended my left thumb be reviewed by a surgeon to make sure the plate and screws were well situated. At this time, an x-ray of my left thumb and wrist showed I had osteoarthritis of the left thumb … .”[14]
[14]Ex P1, pp12-13.
Overview of the Plaintiff’s pre-existing and other injuries
18In her first affidavit, the plaintiff set out an overview of her pre-existing injuries and medical conditions as follows:
“I was involved in a car accident about 30 years ago.
About twenty years ago I [was] diagnosed with fibromyalgia. I have also been diagnosed with polymyalgia rheumatica and Type 2 Diabetes.
As a result of the fibromyalgia and polymyalgia rheumatica my body ached. I was still able to visit friends and family and work but I would get tired. I could still do nearly everything, just in moderation.
In 2001, I commenced employment with the City of Ballarat as a School Crossing Attendant. I worked 10 hours a week helping children cross the road.
In December 2015, I was walking along a road when I was hit by a reversing car. I tore ligaments in my left foot. I made a TAC claim. The injury settled.
In 2016 I had a hernia surgically repaired. The operation failed. I was in significant pain and vomited often until corrective surgery was performed in mid 2018.
In February 2018 I had a bowel and bladder prolapse and hernia repaired.
In September 2018, about a month after the corrective hernia surgery, I was in another car accident. I was rear ended. I went to the Ballarat Base Hospital because I wanted to have my hernia checked. I was kept in overnight because I had some pain at the operation site. The pain resolved and I was okay.
I felt a lot better after the corrective surgery. I stopped throwing up, feeling nauseas (sic) and was more energetic. I went for daily walks and was back visiting family and friends regularly. I was back to my old self.
I struggled with depression for about ten years before the accident, mainly due to a relationship I was in, which ended in 2017. I was recovering from this relationship when the accident happened. I was getting my life back and feeling more positive about life and my future. I felt more able to socialise and enjoy life.
I was taking Axit, diazepam and durogesic patches at the time of the March 2019 accident.
I am right hand dominant.”[15]
[15] Ex P1, pp10-11.
19In addition to these matters, in her second affidavit, the plaintiff deposed to having been diagnosed with skin cancer on her left hand and right thumb in early 2023. These skin cancers were removed in about mid 2023. The plaintiff deposed, and I accept, that there are no ongoing consequences to the plaintiff from this cancer.[16]
[16] Ex P1, p18.
Evidence concerning consequences of the injuries suffered in the transport accident
The Plaintiff’s affidavits
20The plaintiff swore an affidavit dated 17 November 2020, and affirmed two further affidavits, dated 22 May 2024 and 26 August 2024. The evidence which the plaintiff gave as to the consequences of the injuries she suffered in the transport accident, is as follows:
Experience of pain
(a) the worst pain she has is in her left thumb. She gets constant aching pain in her left thumb, at the base of the left thumb and around the inside of her left palm. If she uses her left thumb or hand, she gets a pulling/tearing pain in her left thumb;[17]
[17] Ex P1, p18.
(b) her left thumb is very painful in colder weather. The pain in her left thumb varies from a sharp pain to a pulling/burning pain. Because of the fusion surgery, she finds it hard to move her left thumb, and her left thumb feels stiff;[18]
(c) even though she had been diagnosed with fibromyalgia and polymyalgia rheumatica many years before the transport accident, she was able to spend time with family and friends, work and also enjoy her life. She had adapted to and lived with those conditions for many years;[19]
(d) the fibromyalgia and polymyalgia rheumatica caused her to be tired and to have body aches. The pain she experiences in her left thumb as a result of the 2019 transport accident is more localised, more intense and sharper in nature than what she experienced with fibromyalgia. She finds this pain much more difficult to live with. It affects her ability to do things and enjoy life in a way that the fibromyalgia did not.
Treatment and medication
(e) following the transport accident, she saw Mr Steve Csongvay, orthopaedic surgeon, due to the pain in her left thumb. In about March 2022, Mr Csongvay operated on her left thumb by taking out the plate and screws that had been inserted following the transport accident. He also took a tendon from inside her forearm and put it in her left thumb and took out a knuckle around the base of her left thumb. She then had some hand therapy with Ms Rosemary Overton;[20]
(f) she was still getting a lot of pain in her left thumb following that procedure, so she went back to see Mr Csongvay. On about 13 September 2023, Mr Csongvay did a fusion surgery on her left thumb. She understands he put a plate and some screws back in her left thumb. She then had some hand therapy with Ms Overton a few times. She had a follow-up appointment with Mr Csongvay in early 2024.[21] She will continue to see Mr Csongvay as needed in the future;[22]
(g) she sees her general practitioner, Dr Tu Le, about once a month. She takes a variety of medication for her pre-existing conditions, including pain medication. The pain medication she takes for her other conditions does not seem to help her left thumb pain;[23]
(h) she uses a hot water bottle on her left thumb a couple of times a week. She wears a supportive brace on her left hand as needed. Each day she does exercises for her left thumb and hand that her hand therapist has shown her. She also massages her left thumb each day;[24]
Sleep
(i) she takes Diazepam to help her sleep because of the pain she experiences from her fibromyalgia. She also has interrupted sleep as a result of her thumb pain. She attributes the need to take Diazepam, in part, to this pain;[25]
[18] Ex P1, p18.
[19] Ex P1, p15.
[20] Ex P1, p18.
[21] Ex P1, p18.
[22] Ex P1, p23.
[23] Ex P1, p19.
[24] Ex P1, p19.
[25] Ex P1, p19.
Activities of daily living
(j) prior to the transport accident, she lived alone and performed all household tasks for herself. She also performed all of the home maintenance and gardening. She was independent;[26]
[26] Ex P1, p15.
(k) as a result of her left thumb pain, she finds it difficult to turn on taps, peel vegetables and hold oven trays when cooking. Simple daily tasks, such as pulling up jeans, doing up buttons, picking up a plate, or turning pages in a magazine or book, cause her pain. Doing up her bra, putting shoes on and taking them off, causes her pain.[27] She also finds it harder to put on her socks due to her left thumb pain;[28]
(l) she now has difficulty looking after her home and garden. Dusting, vacuuming and mopping causes her increased left thumb pain. Lifting the laundry basket and hanging out laundry causes her increased pain. She uses her right hand to put the laundry into the washing machine. Holding her mobile phone in her left hand aggravates her left thumb pain. In about 2023, the Transport Accident Commission agreed to pay for gardening equipment;[29]
(m) she is still working as a school crossing attendant about ten hours per week, which is the same as before the transport accident. Before the transport accident, she used to hold the ‘Stop’ sign with both hands. She believes she would now struggle to do the job using the ‘Stop’ sign with her left hand due to her left thumb pain. Now, when she works, she works at traffic lights, so all she has to do is press a button in order to have the traffic stop so the children can cross;[30]
(n) she is right-hand dominant. She now tries mostly to use her right hand when she does activities, so as not to aggravate her left thumb pain. She is finding it harder doing things with her left hand because of the left thumb pain. She feels like her left-hand grip strength is reduced;[31]
(o) she finds it hard performing fine movements with her left hand (like doing up zips and buttons) because of her left thumb pain. She tries to avoid doing repetitive movements with her left hand because of the left thumb pain. She also finds it hard doing movements that require pulling with her left hand, due to her left thumb pain. She now tries to avoid doing twisting-type movements with her left hand, as this tends to aggravate her left thumb pain;[32]
(p) before the transport accident, she had no problems doing the shopping with both hands. Now she tries mostly to use her right hand when doing that task, and tries to avoid using her left hand to lift things, especially heavy things, because of her left thumb pain;[33]
(q) before the transport accident, she was able to do weeding, trimming bushes and mowing the lawn at least every week at home. Now she might be lucky to do gardening once per month. She gardens a lot less because of the pain in her left thumb, which she does not want to aggravate if she can avoid it. If she uses the lawnmower now, the vibration aggravates her left thumb pain;[34]
(r) she finds it more difficult to drive because of her left-thumb injury. That is because she has difficulty manoeuvring the automatic gearstick into gear and also holding the steering wheel with her left hand and turning the steering wheel. This is due to increased pain in her left thumb. She now tries to steer the car with both hands on the steering wheel;[35]
(s) before the transport accident, she had no problems peeling vegetables. Now she finds it more difficult because of her left-thumb pain. She now tends to buy frozen vegetables because of this. She also tends to cook simpler meals to help with her left-thumb pain, because of the difficulty she experiences with food preparation and holding pots and pans;[36]
The Plaintiff’s viva voce evidence
[27] Ex P1, p15.
[28] Ex P1, p20.
[29] Ex P1, p15.
[30] Ex P1, p20.
[31] Ex P1, p21.
[32] Ex P1, p21.
[33] Ex P1, p21.
[34] Ex P1, p21.
[35] Ex P1, p21.
[36] Ex P1, p21.
21Under cross-examination, the plaintiff gave the following relevant evidence:
(a) she was diagnosed with fibromyalgia when she was thirty-six years old;[37]
[37] Transcript (“T”) 14, Lines (“L”) 4-5.
(b) she has experienced a constant ache all over her body since she was twenty years old;[38]
[38] T15, L8-13.
(c) the fibromyalgia causes leg aches and aching behind her knees. It causes her to experience headaches, arm pains and pins and needles in her arms. She also experiences fatigue and feelings of hot and cold, and whole-body aches which have been a problem for many years;[39]
[39] T15, L17-30.
(d) she was on a morphine patch for many years before the transport accident because of these pains;[40]
[40] TT15-16.
(e) the fibromyalgia is the reason why she went onto a disability support pension and has not been able to work more than ten hours a week for many years;[41]
[41] T16, L6-9.
(f) she has tried for many years to reduce her medication, but has not been able to, because the pain is too severe for her to cope;[42]
[42] T16, L11-16.
(g) one of the things that has caused her pain to worsen, both before the transport accident and since then, is cold weather. She has found, over the years, that in winter her pain becomes quite severe. This has caused her problems, particularly working as a school crossing supervisor in winter in Ballarat;[43]
[43] T16, L17-24.
(h) her fibromyalgic pain is really “whole body aches from head to toe” and that she has also had chronic neck and back pain for many years;[44]
[44] T16, L26-31.
(i) she was on pain-relieving patches, and also Tramadol from time to time prior to the transport accident, due to the pain she suffers;[45]
[45] T17, L2-4.
(j) the whole body pain she has had for many years occurs throughout the day and also at night. She agreed that before the transport accident, pain was waking her up at night. This has continued since the transport accident;[46]
[46] T17, L5-11.
(k) she was taken to a record from November 2018 which indicated that she had been referred for a CT scan of her lumbar spine, due to chronic pain and radicular symptoms in her back and right lower abdomen, and also in the front of her right thigh. She could not recall this event, but did not disagree that it had happened;[47]
[47] T18, L3-19.
(l) she agreed she had really chronic, severe pain in many parts of her body in the lead up to the transport accident, and that this has continued since the transport accident;[48]
[48] T18, L20-26.
(m) she continues to experience this chronic, severe pain today;[49]
[49] T18, L27.
(n) she could not recall experiencing instances of weakness in both arms and dropping things from time to time, prior to the transport accident;[50]
[50] T18, L28-31.
(o) she described the way in which the cold weather affects her fibromyalgic pain by stating that the pain usually would be a 2-3/10, but when the cold weather comes, it can increase to a 6-7/10 in winter;[51]
[51] T19, L19-26.
(p) she is prescribed Norspan patches for her fibromyalgia;[52]
[52]T20, L5-6.
(q) she has had “a little bit” of pain in her left foot since a car ran over her foot in December 2015;[53]
[53]TT20-21.
(r) she experienced pain in both her knees which sometimes flares up and causes her to have trouble walking, both before and after the transport accident;[54]
[54]T21, L20-24.
(s) she has had a problem with her right shoulder since before the transport accident. That continues to this day;[55]
[55]T21, L25-26.
(t) she has experienced lower back pain, right-sided abdominal pain and pain in the front of her right thigh, since about November 2018;[56]
[56]T22, L18-28.
(u) she agreed that the lower back pain was causing her “a real problem” and a lot of pain just prior to the transport accident.[57] She was on Fentanyl patches at this time but despite this, she still suffered from significant low back pain;[58]
[57]TT22-23.
[58]T23, L23-28.
(v) since the transport accident she has been able to swap from Fentanyl patched to Norspan patches;[59]
[59]TT23-24.
(w) her chronic body pain due to fibromyalgia has continued in the same way that it did prior to the transport accident, right up until today;[60]
[60]T24, L1-30.
(x) she could not recall having had hand pain prior to the transport accident. She said, however, that she can tell the difference between the pain in the hand after the transport accident and the pain that she has experienced from her fibromyalgia;[61]
[61]TT25-26.
(y) it was put to her that a medical note made on 24 April 2024 recorded that the pain from the fibromyalgia was alleviated by the Norspan patches and taking Diazepam. In response to that, she said “it alleviates but it doesn't go away”. It was put to her that the note recorded that she was able to continue her daily activities at this time, to which she replied, “to a degree, yes”. It was put to her that the doctor had recorded “without these pain meds she cannot function”. In response to this, she replied “correct, yes”;[62]
[62]T27, L4-20.
(z) she acknowledged having had a long history of depression since prior to the transport accident, for which she was on antidepressants. She continues to be on this medication;[63]
[63]T28, L25-31.
(aa) she acknowledged that her low back pain causes her difficulty with sitting and standing and that when it flares up, the pain goes down both legs. She accepted that her low back pain has inhibited her ability to participate in social situations including her interaction with family and friends,[64] and also causes problems with bending and lifting;[65]
(bb) she agreed that her low back pain impacted on her ability to garden prior to the transport accident. However, she said that prior to the transport accident, she would still be gardening a couple of times a week;[66]
(cc) she acknowledged that she needs to lie down after sitting for about 15 minutes because of the pain that she experiences;[67]
(dd) she acknowledged that her back pain affected her ability to sit and do cross-stitching, puzzles, crosswords and diamond dots.[68] She also agreed that her back pain would be impacting upon her ability to undertake these activities, regardless of her left thumb pain;[69]
(ee) she has not seen Mr Csongvay since January 2024;[70]
(ff) she agreed that since Mr Csongvay performed the fusion operation, she has no pain in her metacarpophalangeal (MCP) joint. Since the fusion, the pain she experiences is in the palm of her left hand and the wrist,[71] near the base of the thumb.[72] She agreed that this joint is called the carpometacarpal (CMC) joint;[73]
(gg) she did not dispute that she had told Dr Jennifer Flynn, orthopaedic surgeon, that the pain in her MCP joint had improved significantly since the surgery. She also did not disagree that she had described the ongoing pain in the palm of her left hand as an “ongoing mild ache with pain of the palm”;[74]
(hh) she agreed that her back pain causes her difficulty when she is standing in the kitchen if she stands for too long. She acknowledged that this pain limits “a lot of stuff”.[75] She also agreed that back pain causes her difficulty with putting on her shoes and socks, because she has to bend to do that;[76]
(ii) she is not on any particular medication for the pain she experiences in the palm of her left hand;[77]
(jj) she acknowledged that she is right-hand dominant. She agreed that in relation to many of the activities where her left hand causes her problems, she can still do those activities with her right hand and that this includes doing up zips, steering a car, turning on taps and picking up plates.[78]
[64]T29, L1-26.
[65]TT29-30.
[66]TT30-31.
[67]T32, L16-28.
[68]TT32-33.
[69]T33, L13-19 (although I note that these matters were further clarified in re-examination).
[70]T34, L12-23.
[71]TT34-35.
[72]T36, L9-10.
[73]T36, L16-21.
[74]TT37-38.
[75]TT39-40.
[76]T40, L23-25.
[77]TT40-41.
[78]T41, L7-30.
22During re-examination, the plaintiff gave the following relevant evidence:
(a) prior to the transport accident, while she had some difficulties with vacuuming and mopping due to her back, she still did those activities. Since the transport accident, she does not do those activities as frequently, maybe only once a week. That is because of her left hand, because she does not want to aggravate it. She said that holding the handle of either the vacuum or the mop aggravates her left hand;[79]
[79]TT42-43.
(b) prior to the transport accident, she was doing cross-stitch, diamond dots and puzzles. She does not do those activities anymore. The problem is that holding the items down with her left hand makes that hand ache. She says she needs to hold the cross-stitch, puzzle or diamond dot pattern “to keep it stable”. She said that these activities make her left hand ache, make it “worse”, and aggravates the pain in her left hand;[80]
[80]TT43-44.
(c) prior to the transport accident, she would regularly garden about two times a week. Since the transport accident, she does still garden, but this activity aggravates her left hand when she is weeding or mowing. This is also the case with holding the mower, which causes vibration. This aggravates her left hand;[81]
[81] T44, L19-24.
(d) when she experiences aggravated pain, then it is a lot more pain, and it lasts “for days” afterwards;[82]
[82] T44, 19-26.
(e) she now only does gardening once every three weeks or perhaps once a month. That is so she can avoid increasing the pain in her left hand;[83]
[83]T44, L7-29.
(f) even picking up a plate with her right hand but using her left hand to stabilise it, causes pain. She said that she uses her right hand mainly so as not to aggravate her left hand;[84]
[84]TT44-45.
(g) she gave evidence that steering a car aggravates her left hand. She said that once her hand becomes aggravated, the soreness lasts for a few days. She said the same occurs with something like doing up a zip because she has to use both hands to undertake this activity. She said “… it hurts the left hand doing that. Simple tasks hurt the left hand;”[85]
[85]T45, L12-31.
(h) she gave evidence that little things that you would not expect, like putting on a shoe or a sock, hurt her left hand and make it ache;[86]
[86]TT45-46.
(i) she said “the less I do with the left hand, the better off I am … because I don’t want it to ache”;[87]
[87]T46, L10-13.
(j) in relation to tasks in the kitchen, she has difficulties because of her left hand. She can no longer hold a vegetable to peel it or chop it. Those activities aggravate her left hand and make her hand painful. In relation to lifting a heavy pot, she struggles, especially if it has boiling water in it because “I wouldn’t have the strength”;[88]
[88]T46, L14-26.
(k) she confirmed that she did not have any difficulty preparing vegetables or manoeuvring pots and pans before the transport accident. Since the transport accident, she now buys frozen food so that she does not have to prepare her meals. This is so that she does not aggravate the pain that is always in her left hand and make it worse. The pain that she experiences is in the part of her hand where the thumb joins her wrist. She said that pain is there all the time “24 seven”;[89]
(l) she has a lot less movement in her left thumb now that it has been fused. That includes both extending the thumb and also bending it. She demonstrated these activities in Court and it was evident that the range of movement of her left thumb is markedly restricted, compared with that of the right thumb;[90]
(m) she was asked about the evidence she gave that she can tell the difference between the pain in her hand and the pain that she has from her fibromyalgia. She said that the pain from the fibromyalgia is “like a dull ache”, whereas the pain in her left hand is “like a pulling, tearing pain, [at] all times”;[91]
(n) she was asked to give a number out of ten that would indicate the level of each type of pain. She said that prior to the transport accident, her fibromyalgic pain would be two or three out of ten. The level of that pain remained the same at the time of the hearing. She said that prior to the transport accident, her back pain was about a three out of ten and it now sits at about three or four out of ten. She said that her left thumb and hand pain is about a six or seven out of ten. She said that in the cold weather her left thumb and left hand pain goes up to about a nine out of ten;[92]
(o) she said that in relation to the activities which would cause a flare up of her left-hand pain, the pain when it flares up would be about a nine out of ten. She said that when that happens, it lasts “for days”. She said that she does lots of massaging of that area and applies heat bags to the area to try and manage the pain;[93]
(p) she confirmed that the Norspan patches that she is on to help with the fibromyalgic pain, do not help with her left hand and left thumb pain;[94]
(q) she confirmed that her left hand and left thumb pain do not impact her sleep more than the fibromyalgia used to;[95]
(r) in relation to her leisure activities such as cross-stitching, jigsaw puzzles and diamond dots, she said that prior to the transport accident, she would only do them about once a week. She said that she does not do them at all anymore. She said the reason she does not do them at all is because of the difficulties she experiences with her left hand. She acknowledged that she did have a limited ability to perform these activities prior to the transport accident;[96]
(s) she confirmed that prior to the transport accident, she used to cook a lot more than she does now. She said she used to make “proper meals” before the transport accident every night. She would prepare those meals from scratch. She said that prior to the transport accident, she could do this, even though her low back pain affected her;[97]
(t) she said she is simply unable to undertake these activities since the transport accident because she does not have the proper strength to hold the necessary items like she did. She said that if she tries to perform those activities, her left hand aches and her pain is aggravated: “… no, I just don’t do them”.[98]
[89]TT46-47.
[90]TT47-48.
[91]T49, L6-10.
[92]T49, L6-23.
[93]TT49-50.
[94]T50, L4-6.
[95]T50, L9-10.
[96]T51, L16-31.
[97]T52, L9-31.
[98]T53, L3-24.
The lay witnesses
23The plaintiff relied upon affidavits from her daughters, Ms Sarah Smith and Ms Rebecca Hadfield.
24The relevant evidence contained within the affidavit affirmed by Ms Smith is as follows:
(a) the plaintiff is her mother;[99]
[99]Ex P1, p25.
(b) her mother has not recovered from the injuries sustained in the transport accident. In particular, she has ongoing issues including with her left thumb;[100]
[100]Ex P1, p26.
(c) her mother has told her that she has pain in her left thumb all the time and also in the palm area. She can tell when her mother is having pain in her left thumb, as her mother rubs her hands together trying to warm them up or puts them up against the heater in the car;[101]
[101]Ex P1, p26.
(d) her mother has told her that she feels a lot worse off because of the thumb pain that she experiences;[102]
[102]Ex P1, p26.
(e) activities which have been impacted by her mother’s left thumb injury are as follows:
(i)her mother has had to change the way she eats, and she struggles with chopping and grating food. She does not have flexibility or grip strength in her left hand. Before the transport accident, her mother used to cook things from scratch;[103]
(ii)her mother finds it harder putting on her socks and shoes because of her thumb pain and restriction. She purchased a belt for her mother that has a clip on it so that she does not have to use her left thumb to do that up. Prior to the transport accident, her mother was “fine” getting changed;[104]
(iii)her mother struggles with gardening. She has told her daughter that it is much harder to use the mower. Her garden and lawn do not look the way she would want it to look, which was “perfect”. Her mother has said that the vibration of the lawn mower aggravates her left thumb pain and she finds it much more difficult weeding, because of the left thumb pain. Prior to the transport accident, her mother was pretty good in the garden and she would be “out there frequently”. Now she gardens less often;[105]
(iv)her mother used to like doing crosswords holding the pen with her right hand and the magazine with her left hand. Now she finds it harder to hold the magazine with her left hand due to her thumb pain. She has stopped doing these types of activities;[106]
(v)her mother used to enjoy doing puzzles, cross-stitching and diamond dots before the transport accident. Now she avoids doing this because of her left thumb pain. Her mother received a diamond dot picture for Christmas last year and she gave it away to the deponent’s sister, as she could no longer do that activity;[107]
(vi)her mother now gets precooked food. She does not do a big cook up for events like Christmas, like she used to. She has told the deponent that this is because of her left thumb pain and her hand pain and restrictions;[108]
(vii)her mother now finds it difficult turning on taps, peeling vegetables or holding oven trays with things on them, because of her left thumb pain. She now notices that her mother avoids using her left hand to do things. She mostly does things with her right hand where she can. She has told the deponent, and the deponent can see, that her mother has less grip and strength in her left hand which is due to her thumb pain. She has noticed that her mother tries to avoid doing twisting, pulling or lifting kind of movements with her left hand;[109]
(viii)prior to the transport accident, her mother was able to manage things better. Normally, she would be able to push through and do things;[110]
(ix)her mother has told her that she struggles with doing two-handed jobs like the laundry, because of her left thumb pain. Before the transport accident, she was okay.[111]
[103] Ex P1, p27.
[104]Ex P1, p27.
[105]Ex P1, p27.
[106]Ex P1, p27.
[107]Ex P1, p28.
[108]Ex P1, p28.
[109]Ex P1, p28.
[110]Ex P1, p28.
[111]Ex P1, p28.
25The relevant evidence contained within the affidavit affirmed by Ms Hadfield is as follows:
(a) the plaintiff is her mother. She has regular contact with her mother and speaks to her on the phone most days; [112]
(b) her mother complains of left-thumb pain most of the time, particularly when it is cold. She has difficulty using her left thumb, and lifting things like pots and pans with her left hand because of the weakness and pain in her left thumb. She also has difficulty chopping or cooking now. She avoids doing this by buying frozen food and microwave meals. Her left thumb injury has had a massive impact on her cooking. For example at Christmas time, her mother used to enjoy cooking and serving up a big spread to the family. Now she buys pre-made food so that this event is no longer a burden on her, due to her left thumb injury. Before the transport accident, her mother had no problem cooking in the kitchen;[113]
(c) her mother struggles with things such as putting on her shoes and getting dressed. She is more mindful of the clothes she wears and now buys different clothes that do not need her to fiddle with a buckle or strap. This is because of her left thumb pain. Prior to the transport accident, she was okay getting changed;[114]
(d) prior to the transport accident, her mother used to enjoy doing diamond dot pictures and occasional crafts and puzzles;[115]
(e) her mother has told her that it is much harder for her to move her thumb since the fusion surgery;[116]
(f) prior to the transport accident, her mother had fibromyalgia and chronic fatigue.[117]
[112]Ex P1, p30.
[113]Ex P1, p31.
[114]Ex P1, p31.
[115]Ex P1, p32.
[116]Ex P1, p32.
[117]Ex P1, p32.
Medical records
26There were numerous medical reports contained in the tendered material. Both sides filed reports from medico‑legal experts. A précis of the relevant medical material is set out below.
The Plaintiff’s medical records
27The plaintiff relied upon five letters from her general practitioner, Dr Tu Le, the first dated 17 April 2019, the second dated 25 February 2020, the third dated 22 June 2021, the fourth dated 28 March 2023, and the fifth dated 2 July 2024.[118] In the fifth letter, Dr Le observed:
”The only ongoing symptoms that she has now is the left thumb pain and restricted range of motion. She was referred to Mr Csongvay and she had first metacarpophalangeal joint instability for which she had fusion of that joint in September 2023. This has addressed the instability in that joint. However, she continue[s] to have some pain in that joint, especially when she is doing house works. As expected from the fusion, there is loss of range in that joint. I expect these symptoms to be permanent. No further treatment is planned at this stage. She is now working as [a] crossing supervisor at her full capacity.”[119]
[118]Ex P1, pp36-44.
[119]Ex P1, p44.
28The plaintiff also relied upon five records from Ballarat Health Services in relation to the plaintiff’s initial admission to the Ballarat Base Hospital and subsequent treatment there between 3 March and 27 May 2019.[120] None of the information in those documents was relevant to the plaintiff’s current presentation. They were provided for background purposes only.
[120]Ex P1, pp45-57.
29The plaintiff relied upon two reports from Ms Jennifer Kaess, hand therapist, at Restore Hand Therapy, the first dated 7 November 2019 and the second dated 12 May 2020.
30In the first of those reports, Ms Kaess made the following observations:
“ … [The plaintiff] continues to have constant issues with her left thumb … the pain around the MP of her left thumb still limits her function around the home and for her personal activities of daily living … she reports constant stabbing pains in the MP of the thumb … .”[121]
[121]Ex P1, p58; the abbreviation “MP” refers to the metacarpalphalangeal joint, which other medical experts have described as the “MCP” joint.
31In the second report, Ms Kaess made the following observations:
“ … [The plaintiff] was seen a total of 31 times … [she] reported the primary area of pain and functional limitation being the left hand first carpometacarpal … pain at the base of the thumb. The scaphoid was fractured in the accident on the left which would explain this symptom … she reported difficulty with some dressing and personal care activities and was not working at that time, but was very keen to return to work … [the plaintiff] has worked very hard to increase her strength, range of motion and function but has been limited by pain. Cold weather is particularly problematic … in November 2019 [the plaintiff] had repeat x-rays of her left wrist and thumb which were reported to show significant CMC and metacarpal phalangeal and interphalangeal osteo arthritis in the left thumb. This would account for her ongoing pain and was possibly post-traumatic osteo arthritis in origin …
Prognosis
… [The plaintiff] has worked very hard to recover from her injuries and is back at work at full capacity. She will likely continue to suffer pain in her left thumb/CMC area which will likely continue to decline slowly over time ultimately possibly limiting her independence and requiring surgical intervention … .”.[122]
[122]Ex P1, pp59-61.
32The plaintiff relied upon two reports from Mr Steve Csongvay, orthopaedic surgeon, the first dated 20 October 2021 and the second dated 28 August 2024.
33In the second report, Mr Csongvay made the following observations:
“5. Your diagnosis of my client's condition and facts on which your diagnosis is based
… [The plaintiff] sustained a significant left thumb injury which caused a displaced fracture of the base of the first metacarpal and in the process, significantly accelerated and exacerbated her previously minor and asymptomatic base of thumb arthritis. [The plaintiff] gives a history of no significant thumb pain prior to the accident with x-rays from 2016 and 2019 showing mild degenerative joint changes only … [w]hereas there is significant deterioration of the arthritis of the thumb CMC joint post fracture and fracture fixation/healing.
The progression in the arthritis, as a result of the trauma, also caused increased stiffness and pain in the base of the thumb, increasing the load across the thumb metacarpo-phalyngeal (sic) joint with progressive acceleration of degeneration and hyper-extension instability in this joint as well.
This is a very typical process that we see in progressive degenerative and inflammatory arthritis of the base of the thumb but usually over many years rather than over many months, as it stands in … [the plaintiff’s] case.
The reconstructive procedure of the base of thumb unfortunately was not enough to unload the already unstable and mildly degenerative thumb MCP joint and due to ongoing painful MCP joint instability, a fusion of this joint had to also be performed …
10. My client's prognosis
… [The plaintiff] has responded and recovered well from her reconstructive and fusion surgery. She has significantly improved comfort and function in her thumb and hand. I expect that with appropriate ongoing care with her activities her current comfort, function and strength should continue to remain stable in the long-term.
It is expected that after this type of injury and surgery … [the plaintiff] would experience some residual thumb discomfort with restricted mobility and reduced thumb strength as compared to normal. This is a partial but permanent disability...”[123]
[123]Ex P1, pp 72-73.
34The plaintiff relied upon a medico-legal report from Dr Murray Stapleton, plastic and hand surgeon, dated 2 December 2020. That report was relied upon from the point of view of providing background to the case only. It does not contain any information that is relevant to the plaintiff's current presentation.
35The plaintiff relied upon a medico-legal report from Dr Jennifer Flynn, orthopaedic surgeon, dated 21 March 2024. In that report, Dr Flynn diagnosed the plaintiff as suffering, inter alia, from “Left first metacarpal fracture and aggravation of degenerative changes [in the] left thumb, requiring suspensionplasty and 1st MCP arthrodesis”.[124]
[124] Ex P1, p101.
36Dr Flynn went on to make the following observations concerning the plaintiff:
“Summary and Assessment
… Due to ongoing pain and poor function … [the plaintiff] was referred to Mr Steve Csongvay, plastic surgeon. On 18 March 2022, she underwent removal of the left thumb metacarpal plate, as well as suspensionplasty and ligament interposition with FCR. The trapezium was excised and bone on bone arthritis was noted by Mr Csongvay in the operation report. She reported that there was some, though not a significant, improvement in her symptoms after this surgery. On 13 September 2023, … [the plaintiff] underwent left MCP joint fusion for osteoarthritis. After a period of recovery and healing she has noted that this procedure has provided significant relief of her MCP pain; however [she] has an ongoing palmar ache in the cold or with heavy activities such as gardening. She has undertaken hand therapy. There may be degenerative changes in the remainder of the scaphoid-trapezoid articulation, and thumb contracture contributing to her ongoing pain and symptoms.
… [The plaintiff] continues to experience pain, stiffness, and functional limitation in respect of the left thumb injury, though with notable improvement with recent surgeries….
PROGNOSIS
The prognosis for … [the plaintiff] is guarded, in that she is likely to continue to experience pain and functional limitation in relation to the injuries sustained and outlined in this report, and there is no realistic prospect of a return to the pre-injury state in terms of the left thumb injury …
… The hand pain is worse with heavy activity and in cold weather….
With the left upper limb … [the plaintiff] is restricted in relation to pushing, pulling, lifting, or doing so repetitively, use of the hand and manual dexterity … These restrictions will be ongoing….
… [The plaintiff] reported that there is ongoing pain of the left thumb which limits her capacity for lifting pots, holding items with any force, and also chopping vegetables. Generally, she is able to attend to household duties. … .
She is able to shower and dress independently….
… [The plaintiff’s] future work capacity is not likely to be impacted, to any significant degree. …:.”[125]
[125]Ex P1, pp 101-103.
The Defendant’s medical reports
37The defendant relied upon a report from Dr Geoffrey J McColl, rheumatologist, dated 5 March 2001, in which Dr McColl set out the plaintiff’s history at a time when she was thirty-six years of age. He noted that at that time, she “basically has a constant ache all over … [and] has evidence of quite severe fibromyalgia …”.[126]
[126]Ex D1, p4.
38The defendant relied upon the result of a CT scan dated 6 November 2018, the clinical indication for which was “chronic back pain and radicular symptoms in the right lower abdomen and anterior thigh”. The conclusion as set out in that radiological investigation was that the plaintiff was suffering from “predominant abnormality of severe bilateral L4-5 facet arthrosis with degenerative listhesis. This likely represents the symptomatic lesion …”.[127]
[127]Ex D1, p10.
39The defendant relied upon a medico-legal report from Mr Ash Chehata, shoulder, elbow and wrist surgeon, dated 23 June 2024. In that report, Mr Chehata noted that the plaintiff was then a fifty-eight-year-old female, with a history of fibromyalgia and polymyalgia rheumatica, with ongoing chronic pain following several motor vehicle accidents in the past. He noted that following the most recent transport accident, the plaintiff suffered degeneration at her left carpometacarpal joint which led to multiple surgeries including removal of plates and screws, ligament reconstruction and fusion of the IP joint[128] on 13 September 2023, with improved mobility post-operatively.[129] He also noted the fact that the plaintiff had undergone three surgical procedures since the transport accident, the first on 3 March 2019, the second on 18 March 2022 and the third on 13 September 2023. Mr Chehata did not think that any domestic or leisure pursuits had been affected because of what he described as “an isolated CMC joint change or injury.” He thought that “all of the conditions with regard to any of the changes in her domestic and leisure pursuits are far more likely to be related to the … chronic pain, polymyalgia rheumatica, and the likely deterioration in overall level of function due to her age-related changes more than anything else”. He concluded by opining that “…An isolated thumb injury will not affect any capacity in terms of any of these activities”.[130]
[128]Other medical experts have referred to this as the MCP joint.
[129]Ex D1, pp20-21.
[130]Ex D1, p23.
40I note that the conclusion expressed by Mr Chehata in relation to these matters was base largely on his opinion that the MCP joint pain was “most likely a separate issue and is likely more related to the degenerative condition” rather than to the “actual trauma of the motor vehicle accident”.
41At the commencement of the hearing, Senior Counsel for the defendant confirmed that it would not be submitted that any aspect of the plaintiff's injury to her left hand and left thumb was not transport-accident related. In those circumstances, I place no reliance on Mr Chehata’s opinion that the cause of the changes to the plaintiff's domestic and leisure pursuits are more likely related to her chronic pain, fibromyalgia, polymyalgia rheumatica and the deterioration in her overall level of function due to age-related changes. I also note that Mr Chehata is the only medico-legal or other medical expert to express such an opinion.
42The defendant also relied upon five entries in the clinical records of the UFS Medical Centre. Beyond demonstrating that the plaintiff had numerous other co-morbidities in addition to the injuries which she suffered in the transport accident, these medical notes did not take the analysis of the plaintiff's present condition any further. I note that the plaintiff specifically acknowledged the existence of these co-morbidities and the effect which each had upon her.
The issues
The Plaintiff’s credit
43The plaintiff’s credit was not seriously challenged during cross-examination. However, her account of the extent of the injuries which she says are related to the transport accident and the possibility of alternative explanations for these consequences, was explored in detail during cross-examination. The plaintiff’s evidence in this regard has been set out in detail above.
44Having had the benefit of observing the plaintiff while she was giving evidence to the Court, I formed the view that she was an honest and cooperative witness who appeared to be doing her best to give accurate responses to the questions asked of her. During cross-examination, she gave her evidence openly and without embellishment. In addition, she made concessions where necessary, many of which were adverse to her own interests.
45Furthermore, I find that the plaintiff’s account of events has remained consistent throughout the period in which she has seen her treating medical practitioners, consulted with the medico-legal assessors and provided evidence to this Court.
46After a consideration of all of the evidence, particularly the evidence of the plaintiff as corroborated by the evidence of two daughters, I consider that she was a credible witness, in the sense of being a truthful person. At no time did I gain the impression that she was attempting to mislead the Court or to exaggerate her symptoms in any way.
Stoic plaintiff
47Having considered all of the relevant evidence, I formed the view that the plaintiff has been extremely stoic, both in relation to managing her pre-existing health issues (namely the chronic pain associated with her fibromyalgia as well as her low-back pain), and also in relation to managing the left thumb and hand injury she sustained in the transport accident.
48I note that in relation to both her pre-existing medical issues and the injuries she sustained in the transport accident, despite suffering from the debilitating effects of each condition for a number of years, the plaintiff has taken numerous steps to continue working and living her life as best she can.
49I find that despite the consequences of the injury to her left thumb and hand, which she has suffered daily since the transport accident, she has worked hard to rehabilitate herself and has continued to work as a children’s crossing supervisor. I note the plaintiff’s evidence about this and accept that the reason why she has been able to keep working, despite her left thumb and hand pain, is that her duties as a crossing supervisor now involve her pushing a button at traffic lights rather than holding a ‘Stop’ sign up, in order to allow the children to cross the road. I accept the plaintiff’s evidence that by reason of the effects of her current injury to her left thumb and hand, she does not think she would cope if she had had to keep holding the ‘Stop’ sign, and that it is “lucky” that the system of work has changed.
50I also note the plaintiff’s evidence and accept that despite the difficulties that she encounters because of her left thumb and hand pain, the plaintiff has done her best to keep doing many of the day to day activities that she used to perform prior to the transport accident, such as household chores and gardening. I accept her evidence that she is unable to do many of these tasks as frequently or as easily as she could prior to the transport accident. In relation to some of these tasks, I find that she has had to modify the way in which she carries them out.
51In relation to other leisure pastimes, such as diamond dots, cross-stitching and puzzles, I accept the plaintiff’s evidence that she has simply been unable to continue with these activities, because of the pain which these activities cause to her left thumb and hand.
Compensable injury
52The details of the occurrence of the transport accident are not in dispute.
53Having considered all of the evidence from the plaintiff’s treating doctors, as well as the medico-legal experts on each side, I am satisfied that as a result of the transport accident, the plaintiff suffered an organic injury to her left upper limb (in particular, the left thumb and left hand).
Is the compensable injury permanent for the purposes of the Act?
54Having considered the relevant reports and, in particular, the reports from Dr Le,[131] Dr Flynn[132] and Mr Csongvay,[133] I find that the plaintiff is likely to suffer from the consequences of the injury she sustained to her left upper limb (in particular, the left thumb and left hand), for the foreseeable future. Given this, I find that the injury is permanent for the purposes of the Act.
[131]Ex P1, p44.
[132]Ex P1, p101-103.
[133]Ex P1, p72-73.
Are the consequences to the Plaintiff of the transport accident “serious”?
55Having considered all of the evidence, I find that by reason of the injuries sustained to her left upper limb (in particular, the left thumb and left hand) in the transport accident, the plaintiff suffers from the following consequences:
(a) constant aching pain in her left thumb, at the base of the left thumb and around the inside of her left palm. The pain in her left thumb varies from a sharp pain to a pulling/burning pain. The pain she experiences in her left thumb is more localised, more intense and sharper in nature than what she previously experienced with the fibromyalgia. She finds this pain much more difficult to live with. It affects her ability to do things and enjoy life in a way that the fibromyalgia did not. This pain is not amenable to relief from the pain medication she already takes for her fibromyalgia and polymyalgia;
(b) aggravation of her left thumb pain if she uses her left thumb or hand. When this happens it results in a pulling/tearing pain in her left thumb that lasts for days afterward;
(c) an increase in the pain in her left thumb in colder weather. This is problematic for her in her job, which requires her to be outside;
(d) stiffness in and difficulty with bending and flexibility of her left thumb, because of the fusion surgery;
(e) following the transport accident, the need to see Mr Csongvay, orthopaedic surgeon in respect of management of the injuries to her left thumb and hand. She will continue to see Mr Csongvay as needed in the future;
(f) the need to use a hot water bottle on her left thumb and hand a couple of times a week. She also wears a supportive brace on her left hand, as needed. Each day, she does exercises for her left thumb and hand that her hand therapist has shown her. She also massages her left thumb each day;
(g) the inability to be independent and perform household tasks, home maintenance and gardening as frequently as and in the way that she used to. Dusting, vacuuming and mopping causes her increased left thumb pain. Lifting the laundry basket and hanging out laundry causes her increased left thumb pain. The vibration associated with using the lawnmower aggravates her left thumb. Holding her mobile phone in her left hand aggravates her left thumb pain;
(h) difficulty turning on taps, peeling vegetables and holding kitchen items such as oven trays when cooking. Simple daily tasks, such as pulling up jeans, doing up buttons, picking up a plate, or turning pages in a magazine or book, cause her pain in her left thumb and hand, as does doing up her bra, putting shoes on and taking them off. She also finds it harder to put on her socks due to her left thumb and hand pain;
(i) the need to cook much simpler meals because of her difficulty with preparing food in the kitchen. She used to enjoy making food for her family, and especially for big occasions such as Christmas. Now she buys frozen food or pre-made meals that she can just heat up;
(j) reduced grip strength in her left hand;
(k) the inability to engage in leisure activities that she used to enjoy, such as cross-stitch, diamond dots and puzzles;
(l) the need to avoid doing repetitive, pulling or twisting movements with her left thumb and hand, because these tend to aggravate her left thumb pain;
(m) the need to modify the way she does her shopping and carries items, especially anything heavy; and
(n) difficulty driving, because she has difficulty putting the car into gear and also holding and turning the steering wheel with her left thumb and hand.
56In Haden Engineering Pty Ltd v McKinnon,[134] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of any injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of those consequences, as well as the disabling effect of the consequences on plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[135] Part of the process is for the Court to assess the nature and extent of the consequences which the plaintiff experiences. As set out above, ultimately the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgement. The weight to be attached to the plaintiff’s account of the consequences experienced will depend upon an assessment of the plaintiff’s credibility.[136]
[134](2010) 31 VR 1.
[135]ibid at paragraph [9].
[136]ibid at paragraph [12].
57I have already made observations about the plaintiff’s demeanour and presentation in Court. In particular, I have found that the plaintiff was a truthful and credible witness. I have also found that the plaintiff has been stoic in her approach to managing the injury to her left thumb and hand.
58The fact that the plaintiff has been prepared to keep working since the transport accident, is not a matter that tells against the granting of her application. To use the words of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2):[137]
“… it would be unfortunate, and in my view wrongheaded, if … such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[137][2008] VSCA 260 at paragraph [3].
59As was observed in Hooley v Transport Accident Commission:[138]
“As we have already said, the age at which the applicant suffered his permanent injury is also a significant matter. As this Court said in Stijepic v One Force Group Australia Pty Ltd, when judging the consequences for a particular applicant by comparison with other cases, it is relevant to look at the likely period for which those consequences will be experienced … All things being equal, impairment consequences which an applicant will have to put up with for decades might well be judged more serious than the same consequences which another applicant may have to put up with for a much shorter period of time.”
[138][2019] VSCA 263 at paragraph [51].
60In Kelso v Tatiara Meat Co Pty Ltd,[139] the Court observed that:
“… chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain, requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[139]Supra at paragraph [199].
61In Poholke v Goldacres Trading Pty Ltd and Anor,[140] in relation to a plaintiff who it was accepted had suffered from debilitating injuries prior to the subject workplace injury, the Court of Appeal observed:
“While it is correct that the applicant’s lifestyle had already been severely affected by his neck injury, what remained was important to him. In that context, the further limitations [resulting from the additional injury]…were not insubstantial…”
[140] [2016] VSCA 232, at [111]-[113].
62I have set out above the consequences which the plaintiff’s injury has had on her day-to-day life. I have made findings which support the conclusion that chronic pain in her left thumb and hand is a prominent feature of the plaintiff’s life. While she does not take additional medication for this condition, the evidence indicates and I find that she frequently engages in other forms of pain relief, including massage, the application of heat, the use of a brace, doing daily exercises and the avoidance of activities which would aggravate her left thumb and hand pain, in order to manage this pain.
63Furthermore, I have found that her left thumb and hand pain affects nearly every aspect of her day to day life. Similarly to the plaintiff in Poholke, it was not in dispute in this case that the plaintiff’s lifestyle was already diminished by serious medical conditions, prior to the transport accident. However, the evidence in this case satisfies me and I find that the pain from which she suffered prior to the transport accident, was something she had learned to live with and the capacity for daily life which remained, was important to her.
64The evidence satisfies me that for a person whose life had already been severely diminished by reason of her fibromyalgic pain and low back injury, the further disabilities resulting from her left thumb and hand injuries, deprived her of a significant degree of that residual capacity to engage in many activities of her daily life and continues to interfere significantly with the minutiae of her daily living.
65The evidence indicates, and I accept, that those consequences will continue for decades to come.
66Given this, I am satisfied to the requisite standard that taken together, these matters constitute consequences which are “very considerable and certainly more than ‘significant’ or ‘marked’”.
Conclusion
67As set out above, I am satisfied, to the requisite standard, that as a consequence of the transport accident, the plaintiff suffered a “serious injury”, as defined in the Act, in the form of an injury to the function of her left upper limb (in particular her left thumb and hand). In those circumstances, the application is granted.
68I will hear the parties in relation to the question of costs.
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