Smythe v GTS Freight Management Pty Ltd
[2012] VCC 1231
•7 September 2012
| IN THE COUNTY COURT OF VICTORIA AT MILDURA CIVIL DIVISION | Revised Not Restricted Suitable for publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-02999
| RANDALL SMYTHE | Plaintiff |
| v | |
| GTS FREIGHT MANAGEMENT PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 29 August 2012 | |
DATE OF JUDGMENT: | 7 September 2012 | |
CASE MAY BE CITED AS: | Smythe v GTS Freight Management Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1231 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – loss of both front teeth – gum and nerve damage – pain and suffering only – whether consequences to the plaintiff are “serious”
LEGISLATION CITED – Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38).
CASES CITED – Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267.
JUDGMENT – Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A J Keogh SC with Mr B Anderson | Ryan Legal Services Pty Ltd |
| For the Defendant | Mr A J Moulds SC with Ms S Manova | Hall & Wilcox |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 31 March 2006 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. The body function relied on is the mouth.
4 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
5 The impairment of the body function must be permanent.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities.
7 By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
8 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
9 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica (2006) 14 VR 602.
10 The plaintiff relied upon two affidavits and was cross examined. The defendant did not call evidence. The plaintiff also relied upon medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
11 The plaintiff is a forty four year old truck driver who was born in South Australia. He is married with three daughters and lives in Mildura.
12 The plaintiff attended secondary school until the end of Year 10 after which he completed a four year apprenticeship as a chef. He then built a bakery in South Australia, where he worked for about four years. He later returned to Mildura and began working as a truck driver and heavy plant operator.
13 During 2005, the plaintiff began working for the defendant as a full time yard man and relief interstate truck driver.
14 On the said date, a Friday, the plaintiff was working for the defendant at the new depot in Mildura. After parking his truck, the plaintiff was winding down the trailer legs so he could uncouple the prime mover from the trailer. Whilst doing so, he stopped winding, turned to talk to a co-worker, and unexpectedly the winding handle of the trailer legs recoiled, smashing into the plaintiff’s face (“the incident”).
15 The plaintiff suffered a huge smash on his two front teeth, which were snapped off at the gum line but remained connected to gum tissue. The plaintiff was very shocked and upset, and went straight to see his dentist, Dr Danenberg, in Mildura.
16 Dr Danenberg told the plaintiff he could not do anything for him, and advised him he needed major surgery. The plaintiff had to go home until the Monday while the teeth were dangling in his head and there were exposed nerves. He had to take painkillers, and could not eat or drink.
17 The plaintiff, not having been able to see a dental technician in Melbourne, contacted a dentist in Mildura, Dr Le, who specialised in implants.
18 Dr Le removed the plaintiff’s two front teeth and drilled two holes into his skull and then fitted two implants. He also repaired another tooth which had been broken in the incident.
19 When the plaintiff arrived home from this procedure, he was in enormous pain. It became apparent, when the swelling went down, that something was not right, because the implant was visible through the gum.
20 The plaintiff re-attended Dr Le, who conducted a further procedure, which included reattaching the gum in the front of the implant. In examination in chief, the plaintiff described how that second procedure involved breaking all the bone off the front of his face and harvesting it from his jaw.
21 The plaintiff was fitted with a thin mouthguard with false prosthetic teeth. He had a lot of problems using the mouthguard, and had to take it out every time he needed to eat or drink anything other than water.
22 The plaintiff went back to Dr Danenberg, who referred him to a dentist in Adelaide, Dr Koutsonikos. Dr Koutsonikos advised a crown could not be placed on the inserts because one of them was incorrectly placed, so an appointment was made with another dentist, Dr Soukoulis, who booked the plaintiff in for surgery in Adelaide.
23 This surgery in November 2006 involved major facial surgery which included grafting bone from the jaw.
24 Since that time, the plaintiff has had a significant amount of ongoing further surgery in an attempt to rebuild the degenerated and damaged gum line above and around his two front teeth.
25 In examination in chief, the plaintiff described two graft procedures, during which his mouth was cut and the gum was cut off the bone inside and outside the mouth and pulled down. He had to have stitches throughout his mouth.
26 The most recent surgery was a gum graft, which took place in late August 2011.
27 In examination in chief, the plaintiff described how that procedure was carried out with him under half an anaesthetic – a “twilight” anaesthetic. He understood his gum was removed from a selected area in the roof of his mouth and then his mouth was sliced open and the gum was folded in and sewn through the roof of his mouth and down through his teeth. Growth products were injected into his gum to help the gum to try and stay alive.
28 The plaintiff has been left with no front teeth, and severely damaged gum tissue through the top of his mouth. The injury has been an absolute nightmare for him, and continues to be so.
29 The plaintiff now has artificial porcelain front teeth screwed into his skull. The surrounding gum tissue is badly damaged and has receded, and that causes all sorts of problems with his mouth function. He is very upset about the look of his front teeth because of the disgusting gum line and deformed appearance.
30 The plaintiff has great difficulty eating, and can no longer eat food the way he used to. He has to plan everything and stick to soft foods. He has limited bite function with his front teeth, limited to soft foods only. He has to be very careful when he chews, and all food must remain at the back of his mouth.
31 The plaintiff no longer enjoys food like he used to. The simple pleasures of choosing and eating his own food have been taken away from him. Because of the gum damage behind his front teeth, no food can be placed there during chewing, because if food touches the affected area it causes excruciating pain.
32 The plaintiff suffers from pain in his mouth on a daily basis, and suffers pain every time he eats. The pain varies, depending on the usage of his front teeth and the type of food he is eating. He now eats a lot of spaghetti. Harder foods cause more pain, as do hot drinks.
33 In examination in chief, the plaintiff described how pain and numbness are directly affected by temperature and any hard food. He still drinks coffee, “putting up with the pain, literally, otherwise you’d never enjoy anything”.
34 In cross examination, the plaintiff explained that the presence of any hard food in his mouth is pretty much guaranteed to cause severe pain. It is very hard to eat any food and for it not to contact the front and roof of his mouth. He has a particular problem with sharp or hard foods, like Barbecue Shapes. He could not try peanuts.
35 The plaintiff no longer has as much control over the food in his mouth. He does not know where it is. Further, there is a broader surface between his teeth and gums for any sharp food to jam in between them. When this occurs, it feels like a fish hook is jammed between his two front teeth and his gums. There is also pain if food touches the exposed area of the roof of his mouth. If food is placed successfully in the back of his mouth and it is soft, then it is okay, but there is also a problem if the food is hot. Also, eating in the back of his mouth lessens the plaintiff’s enjoyment of the taste of his food.
36 When the plaintiff drives into Adelaide, the roadhouse café cut up a steak sandwich for him. He would not be able to bite into a lump of steak.
37 Drinking coffee causes reasonable discomfort but it is not unbearable. The plaintiff has a couple of coffees a day and also some cups of milky tea. Like everybody, the plaintiff has to wait for his food to cool down.
38 In re-examination, the plaintiff confirmed the problems with hard, stabbing food or something sharp on the roof of his mouth affecting the surgery area. Every time his mouth bleeds, damage is caused.
39 The temperature of food can leave the plaintiff in quite a bit of discomfort, starting as a very dull burning that can become intense.
40 The plaintiff explained he could not really put anything in his mouth without making a “conscious register of what is going in and whereabouts you are placing it, and how much you put in there”.
41 Without wanting to sound “a sook”, the plaintiff described how his enjoyment of food had been massively affected. If hard food contacts the roof of his mouth, there is bleeding, which usually stops reasonably quickly, but the soreness can stay for a considerable time. The dip on the roof of his mouth has got bigger since the last surgery.
42 Until earlier this year, the plaintiff was taking Voltaren when the pain became particularly severe. He has steered himself away from this medication which he took around the times of surgery or when his pain was particularly bad. He now uses krill oil, which is good for his blood and allows for his aches and pains, including his mouth or his body, to get some rest at night.
43 The plaintiff also usually takes two Disprin at night. It helps him sleep and takes away any swelling or inflammation or discomfort that might have been there from the day before.
44 The plaintiff has to be extremely careful how he interacts with his wife and children. His teeth are held in by a bone graft and gum graft, so he cannot afford to have his mouth knocked. He has to be very careful when he plays with his children, and also careful when he kisses his wife. The plaintiff did not realise how much he used his mouth for things until he suffered injury.
45 The plaintiff has been able to continue work, but he has had to take large amounts of time off over the years because of surgery and post surgery recovery.
46 The plaintiff stopped working for the defendant in February 2011. The following month, he started working for Patrick Port Logistics as an interstate truck driver. The plaintiff is worried about further injury, as he performs a high contact job which includes loading and unloading goods from trucks.
47 The plaintiff’s facial injuries have also had a serious effect upon his performing and teaching of music. The plaintiff began studying classical music and performing as a live singer when he was about twenty eight. Since then, he has performed regularly around Mildura and the Sunraysia district, and performed in a band called ‘The Itch’ and also in a duo called ‘Ash and Randall’.
48 The plaintiff completed the Grade 8 AMEB classical music exam in August 2011, and is now studying the AMusA by correspondence through the Melbourne Conservatorium. He travels to Melbourne every two months for master classes.
49 The plaintiff’s facial injuries have affected his ability to sing. He now has air passing between his teeth and gums while singing. He also has enunciation difficulties due to gum damage on the inside of his mouth, and numbness through the front of his face, which inhibits controlled resonation during singing. He suffers increasing numbness in his face the longer he sings or talks.
50 In examination in chief, the plaintiff described how the problem with enunciation starts from mainly in the gum behind his teeth. The two front teeth are now longer and not higher in the gum line. He feels a dip like a “dog leg” when he runs his tongue over the roof of his mouth behind his teeth and he cannot enunciate correctly.
51 The AMusA by correspondence involves the plaintiff coming to Melbourne every two months for four to six hours a day and one hour of lessons from a local tutor. There is a one off exam and if successful in passing, the plaintiff then hopes to go to the next level, which is Licentiate.
52 Music to the plaintiff is the “most wonderful journey which he has taken onboard, apart from his children.” He is planning to teach music. He described how life in the transport industry is something you do in a fifteen or twenty year burst and obtain as much education to later enjoy things which you love.
53 The plaintiff has a particular problem with German words that sound like “tsu”. If you make the sound and it comes across incorrectly and you have lost the emotion which is part of the delivery. Another person will be chosen above you if their enunciation is better. With this impediment, the plaintiff can obtain a medical certificate for special consideration.
54 In re examination, the plaintiff elaborated further on his singing difficulty. The delivery when singing starts from deep down in the belly and then the delivery system is the tonality and the resonation which you place in the front of your face and you need everything to be working to be successful in the opera field. The mouth is the last adjustable mechanism of production, so if you have problems there, you still have to use your mouth, and where you have problems from inside your mouth you then have a problem with final delivery, depending on the music.
55 In cross examination, the plaintiff said he thought he was doing Grade 4 or 5 singing at the time of the incident. Since then he has usually obtained an “A” in his exams. The plaintiff missed a couple of years’ study because of various surgeries and recovery. He received a “Credit” for Grade 8 last year, because he had chosen not to do the required sight singing.
56 When he undertook Grade 8, the plaintiff had a choice as to the music he sang. He chose to sing some German songs because they attracted more marks due to their degree of difficulty.
57 The plaintiff did not think he would complete the AMusA this year but he explained that most people who undertake the course are not working. He thought it would take him two years because of “the requirement and the preciseness and the deliverance” and all the things that made his university course so very difficult to achieve. Completion of the course this year is something that is possibly out of his grasp with the other activities, in terms of work and family. He explained it was a very difficult year to learn to sing and act and do all those things.
58 The plaintiff still sings in a local duo. His band is not performing at present as the drummer is overseas.
59 Having looked at his treatment records, it appears the plaintiff underwent facial surgery on 25 October 2006 and with Dr Soukoulis during 2007, 2008, 2009 and 2011.
60 In addition to that surgery, the plaintiff has also had numerous consultations over the past six years with Dr Soukoulis, Dr Koutsonikos and Dr Danenberg.
61 The plaintiff discussed future treatment when he saw Dr Soukoulis earlier this year, advising him that his singing exam was in December 2012.
62 Dr Soukoulis advised the plaintiff that there is only so much that could be done. Surgery, involving cutting off the gum and pulling it down and sewing it in could only be done so many times as there is only so much length in the fibre of the tissue.
63 Dr Soukoulis told the plaintiff if he really wanted to surgery to restore the gum line and rebuild it, he would have another look at it but there were no promises. He was confident that what he had done was about as much as he could do but there was a possibility there might be some further treatment. The plaintiff was hoping that would be the case for his sake.
64 The plaintiff’s gum has receded since the August 2011 surgery. His mouth is not healing. Basically, the final position was with his doctor, find out the date of the exam and then make an assessment.
65 In re examination, the plaintiff said he could hope that treatment might be successful with possible surgery next year but as it has been six and a half years, he did not think his condition was likely to be changed. The shape of his mouth could not be changed, nor his back teeth. Nor could he make his tongue cover those areas. He thought his condition was permanent.
66 In examination in chief, the plaintiff showed his teeth. There was a receded gum line for the top two teeth with a ridge of lighter pink tissue above the teeth. The plaintiff described how the prosthetic teeth protrude into his mouth, which affects his enunciation and the gum line has risen and sculpted out, so the roof of his mouth comes down in a dome shape.
The Plaintiff’s Medical Evidence
67 Dr Soukoulis first saw the plaintiff regarding a problem with an implant in 2006. The implant in 11 was placed too buccally, and so the bone and gum had receded on the buccal aspect of the implant.
68 The implant was removed, and a bone graft was placed.
69 In April 2007, the implant was replaced with another implant, and a small graft was required, given some of the bone graft had resorbed. The implant was left to heal and expose. The two implants were then restored by a prosthodontist, and the plaintiff returned for a view of the implants. Dr Soukoulis found the plaintiff’s gum had receded on the 11 implant, and so this was grafted with a small skin (gum) graft.
70 As of October 2008, Dr Soukoulis was waiting for the tissues to mature before reviewing the plaintiff’s result. He needed to see him in the future to ensure that the tissue heights had improved and to assess the implants’ bone levels.
71 Dr Soukoulis thought that would probably necessitate reviews, including x‑ray checks in the coming years – probably three reviews over five to ten years, with a cost of between $3,000 to $4,000 for the reviews.
72 Dr Soukoulis saw the plaintiff in November 2009 to carry out a subsequent correction of the soft tissue and also improvement of the soft tissue of the lateral incisor which had been involved in the earlier surgical process.
73 Following a review, the plaintiff felt that the thickness of the tissue needed to be improved further, and therefore Dr Soukoulis carried out a full thickness soft tissue graft to bulk out the soft tissue associated with the 11 implant and also lateral incisor.
74 Dr Soukoulis has not seen the plaintiff since 10 August 2011. He assumed the plaintiff is now happy with the final result, despite some limitations following multiple surgical procedures. Dr Soukoulis noted, as with all implant dentistry, there was a possibility that the plaintiff would require further soft tissue grafting, if not hard tissue grafting, and possible replacement of one or both implants in many years to come.
75 Due to the plaintiff’s history of gingival recession, Dr Soukoulis thought it may also be possible that he would develop further recession, not only with the implant in the 11 site, but also the implant in the 21 site in the future.
76 Dr Soukoulis noted a review to assess the plaintiff’s condition was indicated, and his staff were arranging that in terms of the prognosis of the implant, as he had not had a chance to carry out any subsequent radiographs for some period of time.
77 Dr Le, from Tankard Dental, provided a copy of his treatment notes from 4 April 2006 until 24 October 2007, and then recommencing in 2010.
78 In a letter to Dr Koutsonikos, Dr Danenberg advised that in August 2006, the plaintiff had suffered a complete fracture of 11 and 12 which extended deep subgingivally on the palatal, and it would have necessitated a substantial amount of periodontal surgery.
79 The decision was therefore made to head down the implant supported crowns route. The plaintiff returned on 17 August 2006, having had the implants placed in the sites, and with temporary crowns in situ.
80 Dr Danenberg noted the labial margin on the 11 was already substantially higher than the 21, and the plaintiff was not happy with the results thus far obtained. After again declining the plaintiff’s request to make permanent crowns, Dr Danenberg advised him to seek the services of a specialist such as Dr Koutsonikos.
81 Dr Soukoulis wrote to Dr Danenberg in January 2007, advising he had recently seen the plaintiff and exposed the implant in the 11 site. He advised that it had healed well, clinically and radiographically. He directed the plaintiff to contact Dr Danenberg for an appointment to commence restorative treatment (temporary crown?). He asked Dr Danenberg to consider also replacement of the 21 crown, as it showed signs of wear and tear and could fracture soon (most likely at an inappropriate time).
82 Dr Koutsonikos wrote to Dr Danenberg in September 2006, thanking him for the referral of the plaintiff with regard to the future treatment of 11 and 21. The plaintiff’s two main concerns were then the discrepancy and gingival height between the 11 and 21, and also the thickness of the temporary crowns, which he felt were bucky.
83 Dr Koutsonikos advised that she had referred the plaintiff to a periodontist, Dr Soukoulis, with regard to the difference in gingival height, as she felt specialist intervention was required. She noted either the implants had been placed at different levels or there had been more bone loss associated with the 11.
84 Dr Koutsonikos advised she would be then able to construct permanent crowns on a better foundation.
85 Dr Soukoulis advised Dr Danenberg on 12 January 2007 that he had recently seen the plaintiff and placed an implant into the 11 site which he would review clinically and radiographically in the next eight to twelve weeks.
Medico Legal Examinations
86 Dr Stubbs, registered specialist in oral medicine, examined the plaintiff in July 2012.
87 The plaintiff told him of the incident involving teeth 12, 11 and 21. The plaintiff attended his regular dentist, Dr Danenberg, on 31 March 2006.
88 Dr Danenberg’s records indicated that he saw the plaintiff within an hour of injury. There were no soft tissue lacerations; however, teeth 11 and 21 had coronal root fracture in which the crowns of teeth 11 and 21 were very mobile.
89 Treatment planning was based on the suitability of the remaining root structure of teeth 11 and 21, and tooth 12 had a mesial-incisal tooth fracture.
90 When the plaintiff was seen on 3 April 2006, the crowns of teeth 11 and 21 were removed. The assessment of the root structure was unsuitable for crown endodontic treatment, and recommendation for implant replacement of teeth 11 and 21 was the better treatment option. The roots of the teeth were devitalised (tooth nerves were removed) and dressed temporarily to assist with pain management.
91 The plaintiff saw Dr Le on 4 April 2006 and an implant placement was undertaken the following day.
92 The plaintiff became concerned about the placement of implants, given the number of radiographs taken to get the implant placement at site 11. A temporary suck down prosthesis was constructed by Dr Le, which the plaintiff found difficult to wear.
93 After the placement of the implants, the plaintiff reported significant pain, with his face burning. He struggled to eat food, and he could not kiss his wife or his children. The dental records provided indicated that Dr Le raised a labial and palatal gingival flap and the roots of teeth 11 and 21 were surgically removed.
94 The plaintiff observed that a week after the implant placement he could see the implant at site 11 after the tissue commenced to heal. He returned to Dr Le and was advised to see a gum specialist. Dental records for visits on 3 May 2006 showed a gingival laceration associated with implant site 13. Further review visits on 16 May and 30 May 2006 indicated the plaintiff was happy, and temporary build ups were undertaken.
95 On 21 June 2006, records indicated episodic pain which was keeping the plaintiff awake at night, relieved by Nurofen. A temporary crown placement associated with teeth 11 and 21 was placed on 17 July 2006.
96 Dr Danenberg referred the plaintiff to a prosthodontist, Dr Koutsonikos, for an opinion on the crowns associated with implants 11 and 12. She referred the plaintiff to a periodontist, Dr Soukoulis, for an opinion in reference to the placement of the implants prior to the replacement of any crowns.
97 Dr Soukoulis reported on 29 October 2006 that the implant at site 11 was removed and a bone graft placed. Records from Dr Soukoulis indicate reviews on 13 February 2007 and 18 April 2007.
98 Further treatment involving a coronal reposition flap and connective tissue graft of the 11 implant site was undertaken on 4 March 2008. On 13 January 2009, there was a coronal reposition flap to the 22 to 24, using Emdogain to the root surfaces. Porcelain fused to metal crowns for teeth 11 and 21 were temporarily cemented on 13 January 2009 by Dr Koutsonikos.
99 The records of 30 November 2009 indicated a connective tissue grant from the right hand side of the palate and repositioned into the 11–12 pouch which was sutured.
100 The plaintiff’s last procedure was on 10 August 2011 when he had a full gingival graft from the palate and sutured to the recipient site 12–11 in order to improve the tissue thickness at the gingival margin level.
101 Dr Soukoulis noted on his review visit with the plaintiff on 17 August 2011, that the plaintiff had removed most of the sutures himself. However, they were healing well.
102 The plaintiff advised he intended undergoing further gingival surgery in 2013.
103 The plaintiff reported to Dr Stubbs that enunciation in singing had been difficult, especially in reference to the German articulation of the sound “tsu” which was not clearly produced because of the relationship between the plaintiff’s palatal gingiva and tongue. The anterior third of the hard palate was numb, especially on the right hand side.
104 The plaintiff reported eating was restricted to softer foods such as spaghetti, chicken schnitzels with gravy and roast meat meals. The plaintiff avoided hot temperature foods, as they intensified a dull burning pain within the trauma site region 11 to 21. The plaintiff told Dr Stubbs that if he ate a steak pie followed by a hot coffee, he experienced a burning pain for the next three hours.
105 The plaintiff reported that sometimes when he experienced the burning pain he also had frontal headaches.
106 On examination by Dr Stubbs, there was no facial asymmetry or facial swelling evident. There was nil deviation during mouth opening, no crepitus or clicking. The masseter muscles were painful on palpation.
107 Dr Stubbs diagnosed neuropathic pain involving the sites of the implant placement at 11 and 21, dental caries in tooth 12, gingivitis, and anaesthesia within the anterior hard palate. The anaesthesia region within the anterior hard palate was permanent. Dr Stubbs considered further periodontal surgery may be required involving the implant placement sites 11 and 21.
108 Dr Stubbs thought the ongoing nature of the chronic neuropathic pain the plaintiff experienced within the anterior mid facial region may be successfully treated with a variety of anticonvulsant or tricyclic antidepressant therapies in keeping with standard pain management protocols. He also recommended the construction of an occlusal night splint in reference to the plaintiff’s nocturnal bruxism. Dr Stubbs noted, on reviewing the plaintiff’s dental records, there were numerous entries of fractured teeth or loss of restorations. This splint would also protect the implant based porcelain to metal crowns.
109 Dr Stubbs thought the injury involving the loss of teeth 11 and 21 and subsequent ongoing periodontal management of the site indicated the injury site had not stabilised, other than the anaesthesia, within the anterior hard palate. Dr Stubbs noted the plaintiff had only limited difficulties in masticating hard foods and reported hot food causing pain. There was no reported difficulty in swallowing his food. It was noted the plaintiff’s diet was restricted essentially to softer moist foods.
110 Dr Stubbs considered there was clinical evidence of anaesthesia within the nasopalatine nerve distribution, and this was reported to affect the plaintiff’s capabilities of singing with the articulation of certain German words.
111 The plaintiff reported the choice of food selection as having been impacted since he suffered the dental injury.
112 Dr Stubbs commented he was not qualified to measure the impact in terms of enunciation other than to report the anaesthesia within the anterior hard palate which was objectively demonstrated.
Overview
113 There is no dispute that the plaintiff suffered a compensable injury in the incident, losing his 11 and 21 teeth and damaging his gums, later requiring surgery on numerous occasions.
114 The issue is one of range.
115 Counsel for the defendant conceded the plaintiff had a problem with eating but submitted the consequences of any impairment did not reach the statutory threshold of “serious”.
116 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [12]:
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
117 I found the plaintiff to be a very impressive, credible witness who described without embellishment a range of problems with his teeth and mouth affecting normal day to day activities, particularly eating and his passion of singing.
118 No evidence was called on behalf of the defendant.
119 Counsel for the plaintiff submitted there were two main consequences of the plaintiff’s mouth injury. Firstly, the plaintiff, a trained chef, with a significant interest in food, had pain when eating and had, to a large extent, lost his enjoyment of food. Secondly, it was submitted there were very considerable consequences in terms of the plaintiff’s ability to enjoy opera singing, particularly at the elite level.
120 I accept that the interference with the plaintiff’s ability to eat and enjoy his food is a consequence that is more than significant or marked.
121 Obviously eating is a necessary daily activity and one that should be pleasurable. I accept that as a result of his mouth injury, the plaintiff has a number of different problems eating.
122 Most significantly, because of the gap between his gums and his two front teeth, he must avoid sharp and hard foods, as they can become caught in that area, causing the plaintiff excruciating pain. He has similar difficulties and suffers bleeding if hard food catches on the roof of his mouth in the area of previous surgery.
123 Because he cannot bite down on food with his front teeth, the plaintiff has to bite with his lower teeth or eat already chopped up food in the back of his mouth, the latter resulting in a reduction in his ability to taste what he is eating.
124 Because of the numbness in his mouth, the plaintiff does not know where food is and has difficulty controlling it.
125 There is the additional problem with temperature, as if the plaintiff eats food that is too hot, he experiences soreness that will often last for some hours.
126 Pain in the plaintiff’s mouth is such that he requires two Dispirin at night to settle down his mouth after a normal day. The plaintiff may also require more significant medication for neuropathic pain, as Dr Stubbs described
127 Put simply, the plaintiff has to think and take care when he puts food in his mouth every day of his life – a consequence which I consider to be serious.
128 This is not a dissimilar situation to that discussed by Dodds-Street JA in Kelso v Tatiara Meat Company Pty Ltd (2007) VSCA 267, at 199, in which chronic pain was a prominent feature of the appellant’s case. Her Honour noted that:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
129 I also accept that there is a significant risk of further treatment, including surgery. In 2008, Dr Soukoulis indicated the plaintiff would need review over the next ten years.
130 When Dr Soukoulis last saw the plaintiff in August 2011, he noted a review to assess the plaintiff’s condition was indicated, and his staff were arranging that in terms of the prognosis of the implant, as he had not had a chance to carry out any subsequent radiographs for some period of time.
131 I accept the plaintiff’s evidence that once he finishes his AMusA examination, he intends to return to Dr Soukoulis to discuss further surgery.
132 The plaintiff is obviously a very talented singer, having obtained high marks in the AMEB exams and being accepted in the AMusA.
133 Whilst I accept that the plaintiff has some problems singing opera because of his mouth injury, these difficulties are quite limited. His problem with enunciation is limited to his pronunciation of the German vowel “tsu.”
134 There is no evidence from the plaintiff’s tutor or any person in the opera field to suggest this is a significant problem or one which would hold the plaintiff back in finishing his AMusA or proceeding to an elite level. Further, there was no suggestion that the plaintiff has any problems with popular singing or any evidence that the plaintiff intended to be a performer.
135 The plaintiff has not suggested he could not complete his AMusA in a year because of his mouth injury. Whilst he has problems with his delivery, working full time and having a family would make it difficult for him to complete the course which is usually done on a full time basis.
136 I also accept that the plaintiff has to be careful playing with his children for fear of suffering facial pain or further injury. His ability to kiss his wife is also affected.
137 I am satisfied that as the plaintiff’s mouth pain and associated difficulties have persisted for over six years, his impairment is permanent. There is no suggestion that any possible surgery may change this situation to any significant extent.
138 Taking into account all the evidence, I am satisfied that the impairment to the plaintiff’s teeth and mouth is serious and permanent.
139 Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering.
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