Valach v Transport Accident Commission
[2020] VCC 1809
•19 November 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-03246
| JOSHUA VALACH | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 November 2020 | |
DATE OF JUDGMENT: | 19 November 2020 | |
CASE MAY BE CITED AS: | Valach v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1809 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Transport accident – left leg injury - disfigurement – scarring over the left thigh – whether the disfigurement is “serious”
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited:Ingram v Ingram & Anor [1996] 2 VR 435; Richards v Wylie (2000) 1 VR 79; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Davidson v TAC [2015] VSCA 12; Humphries v Poljak [1992] 2 VR 129; Baker v TAC [1997] I VR 662; TAC v Garcia [2015] VSCA 225.
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab | Slater and Gordon Lawyers |
| For the Defendant | Mr J Gorton QC with Mr P Bourke | Solicitor to the Transport Accident Commission |
HER HONOUR:
Introduction
1 In the early hours of 1 January 2018, after leaving a New Year’s Eve celebration, Mr Valach was injured as a pedestrian, when he was intentionally hit by a car, driven by a person whom he had been in an altercation with at the party. As a result of the transport accident, Mr Valach suffered an injury to the saphenous nerve in his left leg and has been left with two permanent scars on his left calf and thigh.
2 In order for Mr Valach to be entitled to claim common law damages, the impairment to his left leg must satisfy paragraph (a) of the definition of “serious injury” contained in s93(17) of the Transport Accident Act 1986. In the alternative, the scarring on his left leg must satisfy paragraph (b) of the definition of “serious injury”. The TAC accepts that Mr Valach suffered an injury to his left leg and scarring in this accident, but disputes that such injury or scarring satisfies either serious injury threshold.
3 Only Mr Valach was called to give evidence and was cross-examined. Whilst the hearing commenced via Zoom, in the afternoon of the first day of hearing, I viewed the scarring on Mr Valach’s left thigh in person, in court. Also in evidence were numerous medical reports. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all that material in the course of this judgment, but rather to those parts of evidence and reports which I consider necessary to give context to and explain the conclusions reached in this judgment.
Background
4 Mr Valach was born on 18 December 1990 in New Zealand and is currently 29 years of age. He immigrated with his family to Australia when he was three years of age.
5 Mr Valach attended Hoppers Crossing Secondary School. He completed Year 10 and then left school at 16 years of age to work as a process worker. He remained in this role for approximately three years before then working in construction, performing scaffolding and rigging.
6 Mr Valach said that when he was approximately 16 years of age, he injured two of his left fingers in a workplace accident. He said this has resulted in permanent disfigurement of his index and ring fingers, with both now shorter than the fingers on his right hand. Mr Valach said he was conscious of this disfigurement and feels embarrassed if people see it. He said he is just as embarrassed about his hand as his left leg scars. However, Mr Valach said he has learnt to cope with it as he has had this disfigurement for half his life.
7 In the six months prior to the transport accident, Mr Valach attended the general practitioners at the Brimbank Medical Centre in respect of an exacerbation of gout, and also sought advice in relation to hypertension. In an attendance on 6 June 2017, it was noted Mr Valach weighed 132 kilograms. In a subsequent attendance on 8 July 2017, it was noted that Mr Valach had reduced his weight to 122 kilograms. At that time, Mr Valach was treated in respect of an exacerbation of his gout condition and prescribed medication in addition to being encouraged to lose weight and control his blood pressure by lifestyle modification. His attendances in relation to his gout continued in December 2017, at which time Mr Valach was provided with a Centrelink certificate as the gout condition prevented him from seeking employment.
8 Mr Valach said despite the problems he sometimes had with gout, he was otherwise active and enjoyed playing table tennis on a daily basis. Mr Valach said he played competition table tennis several nights a week and also played table tennis at home against his mother and brother. He said this activity gave him a great sense of enjoyment.
9 In addition, Mr Valach said that prior to the transport accident, his brother was his gym partner and he attended the gym up to five times a week at the St Albans Leisure Group Centre. He said he also enjoyed swimming, the spa and the sauna at the centre.
10 Mr Valach also said that, prior to the transport accident, he used to play rugby twice a week and also helped his brother coach rugby.
11 Mr Valach also said he previously enjoyed going to the local swimming pool in the summer months, as well as going to the beach with his extended family. At the beach, he said he would play volleyball or basketball with his nieces and nephews.
The treatment and consequences arising from the injury suffered in the transport accident
12 Mr Valach said he went home after the transport accident and did not immediately seek medical treatment. However, the following day, on 2 January 2018, he attended upon a general practitioner at the Brimbank Medical Clinic and was subsequently referred to the Emergency Department of the Western Hospital. Whilst there, he underwent a surgical debridement and washout of the wound he had sustained to his left calf. Mr Valach said he subsequently underwent a number of surgical debridements and ultimately underwent plastic surgery which involved taking a skin graft from his left thigh to assist in repairing the wound on his left calf.
13 Mr Valach said he remained in hospital for approximately eight days. After discharge, he said he was unable to walk for a period of approximately one to two months and required regular re-dressings of his left leg. Mr Valach said during that period he was immobile, and gained approximately 25 kilograms in weight.
14 Mr Valach said he ultimately returned to work in April 2018. Since that time, he has continued to work in roles which have involved being in a warehouse, as well as a crane driver and rigger. He said such work has involved him being on his feet for prolonged periods. Mr Valach said he has been able to cope in such employment without any physical restrictions arising from his left leg injury.
15 In February 2020, Mr Valach attended on his general practitioner, Dr Adaeze Emezie, and complained of the ongoing itching in his left leg. At that time, Dr Emezie referred Mr Valach to neurologist, Dr David Freilich.
16 On 30 March 2020, Mr Valach was examined by Dr Freilich. Mr Valach understood from this appointment that his nerve damage is permanent, and no further treatment was recommended.
17 In a medical report dated 12 May 2020, Dr Freilich detailed his attendance upon Mr Valach and noted that he suffered from a circular scar in the left lower leg, with diminished pinprick and touch sensation over the medial aspect of the lower leg from the knee to the ankle. Dr Freilich stated that, in his opinion, Mr Valach had suffered damage to the left saphenous nerve which had led to numbness over his left lower leg, and that such injury was permanent. Dr Freilich did not recommend any treatment in respect of the nerve injury.
18 Mr Valach said he has been left with an absence of feeling from just below his left knee to just above his left ankle. He said the area feels “very abnormal and is very itchy”. Mr Valach said no matter how much he seems to scratch or rub it, it does not help him. He said that as he has no feeling in his leg, he could scratch it until it bleeds, so instead he slaps it to try and relieve the itch, but that this does not work either. Mr Valach said that the impaired sensation in his left leg is not painful, but he described his inability to relieve the itch in his leg as “agony”.
19 Mr Valach said the itchiness in his leg can sometimes wake him at night. He said that occurs on varying occasions, probably around three nights a week. He said that the night before the court hearing, it kept him awake for only 10 minutes as he was very tired. However, Mr Valach said that when it is at its worst, he may be awake for as long as a couple of hours. He said it depends upon how tired he is. He otherwise acknowledged that he had told psychiatrist, Dr Nathan Serry, in August 2020 that he “slept like a baby”. Mr Valach said at times he is able to sleep soundly, whereas on other nights he wakes due to the itch in his leg.
20 Mr Valach also said his left calf remains swollen, which he understands is due to the impaired venous drainage within it as a result of the damage to his saphenous nerve.
21 Mr Valach said he is very embarrassed by the scarring and disfigurement on his leg, especially the area where there is an indent in his left calf. He said he considers it obvious and apparent to anyone when he wears shorts. Mr Valach said he is worried about what people think of his scarring. He said he thinks about “them thinking about me, about my leg, it distracts me”. Therefore, Mr Valach wears long pants to avoid people seeing his scar.
22 Mr Valach said when he wears long pants, it causes his leg to sweat and therefore itch more. He said for this reason, he no longer goes for walks. He accepted there is no restriction in his walking ability from the damage to his saphenous nerve, but rather wearing long pants whilst walking causes heat and sweating in his legs, which in turn causes him to suffer the itch.
23 Mr Valach said he no longer participates in table tennis or rugby, or attends the gym, because he does not feel comfortable doing such sporting activities in long pants. Mr Valach said he was not prepared to wear shorts to do such activities because of his embarrassment with his scar. He said he was not prepared to do such sports wearing long pants, as he said that would be uncomfortable and it would also lead to sweating and increased itching in his lower leg. Mr Valach said in the summertime he will no longer go to the local pool or the beach as he is self-conscious of his scar.
24 Mr Valach accepted that in relation to his work duties, he is able to readily perform them wearing long pants and made no complaint in relation to the impact which his left leg injury has upon him in respect of his working capacity.
25 Mr Valach said that his left leg injury is:
“a constant reminder to me of the accident itself because of its abnormality and also because of the constant numbness. Even when I am home alone and I see the scar on my leg, I feel the effect of the accident coming back to me in my mind. This happens at night, also when the itch in my left lower leg wakes me up.”
26 Mr Valach said he has been less social since the transport accident, but that his reluctance to socialise in the evenings is due to his fear of seeing the offender who struck him in the transport accident. He is able to wear long pants out at night and therefore his scar does not affect him at such times. However, as detailed above, Mr Valach said his social life in respect of sporting activities, as well as attending the beach and pool, has been affected due to his scarring, and his resulting embarrassment.
27 Mr Valach acknowledged he has not sought any psychological treatment in respect of his injuries as he does not think it would be of benefit to him.
28 Mr Valach has also declined to have any revision surgery on his left leg, as although it may improve his leg and scar, he is concerned there is also a prospect it may worsen it.
29 During his evidence, I was able to observe the scarring to Mr Valach’s scars in person and at close range. I observed two scars, both of which I found to be significantly more obvious and unsightlier than was depicted in the tendered photographs. The most significant scar is the one on Mr Valach’s left calf. It is slightly smaller than half the size of a tennis ball and appears as a large cavity in his leg. The scar on the outside of Mr Valach’s upper thigh is larger in size, but is faded, relatively flat and much less obvious.
30 In support of his application, Mr Valach also relied upon an affidavit from his mother, Puna Valach. In her affidavit sworn 8 October 2019, Ms Valach confirmed that prior to the transport accident, Mr Valach wore shorts most of the time, but very rarely wears them now. Further, she stated that prior to the accident Mr Valach regularly went to the gym with his brother, but no longer does this.
31 Mr Valach also relied upon an affidavit from his brother, Jaime, sworn 8 October 2019. In this affidavit, Jaime stated that before the transport accident they went to the gym together approximately four times a week to train, and they would also practice Maori cultural dancing. Jaime said that since the transport accident, they have rarely gone to the gym together, and Mr Valach no longer does any Maori dancing. Jaime also noted that when he spends time with his brother, he constantly complains about the itch in his leg and struggles to stay still for any length of time.
Medico-legal evidence
32 Mr Valach’s solicitors arranged for him to be examined by plastic surgeon, Mr Felix Behan, on three occasions in February 2019, December 2019 and October 2020. In his medical reports, Mr Behan detailed his findings on examination, including his measurements of Mr Valach’s scars. Mr Behan noted that Mr Valach suffers from a scar deformity in his left calf and that is also a site where the pruritic irritation reflects the damage to the left saphenous nerve, which Mr Behan considered might involve scar tissue. Accordingly, Mr Behan recommended, in his most recent report dated 7 October 2020, possible scar revision surgery which would reduce the size of the cavitating scar deformity. Mr Behan also stated that such surgery may free “small branches from scar tissue” which may have the advantage of reducing the pruritis in Mr Valach’s calf.
33 At the time of this examination, Mr Behan assessed Mr Valach’s scar via Zoom, as an in-person examination was not possible at the time. Mr Behan estimated that the scar on Mr Valach’s calf was approximately 6 centimetres by 6 centimetres, and the scar where his skin graft donor site was on his left upper thigh was approximately 8 centimetres by 8 centimetres.
34 Mr Valach’s solicitors also arranged for him to be examined by neurologist, Professor Stephen Davis, in February 2019, November 2019 and August 2020. In his most recent report dated 10 August 2020, Professor Davis noted that Mr Valach stated he was pain-free, although he suffered a loss of sensation in his left leg, which was not painful but “really numb”. It was also noted the region becomes itchy and does not respond to scratching. Professor Davis noted that Mr Valach was able to walk without restriction and could do activities around the home as required.
35 On examination, Professor Davis noted that Mr Valach had scar-related surgery for his wound on the upper medial aspect of his left lower leg and that there was “clear-cut sensory loss which was fairly dense over the region of the left saphenous nerve”. Professor Davis accepted that in the transport accident, Mr Valach had suffered a compression injury to the left saphenous nerve which had resulted in anatomical left saphenous sensory loss. Professor Davis accepted that, as a consequence of this, Mr Valach was bothered by itching and unpleasantness associated with numbness.
36 Mr Valach’s solicitors also had him assessed by psychiatrist, Dr Nathan Serry, in February 2019, October 2019 and August 2020. In his most recent report dated 27 August 2020, Dr Serry noted that Mr Valach had not had any mental health interventions, although he suggested he would be amenable to speaking with a psychologist. When this was put to Mr Valach in cross-examination, he said he would be open to that, but was also self-aware and did not think someone telling him to wear shorts would make him change his mind.
37 Dr Serry noted that Mr Valach’s social and recreational life had been compromised as he had become withdrawn, was not socialising very much and had not returned to play rugby. It was also noted that Mr Valach was anxious in social situations.
38 Dr Serry diagnosed Mr Valach as suffering a chronic adjustment disorder with anxious and depressed mood and with features of traumatisation. Dr Serry noted that Mr Valach’s prognosis remains mixed and the inability to obtain relief from the itch in his left calf appears to cause Mr Valach greater levels of frustration and have a negative impact on his mood.
Mr Valach’s credibility
39 Mr Valach gave evidence in a straightforward and simple manner. I considered him to be a creditworthy and reliable witness, and I have no hesitation in accepting his evidence in its entirety. Mr Valach openly conceded that other matters troubled him – he was self-conscious of the shortened fingers on his left hand, and his avoidance at socialising at night was due to his fear of the offender, not the scar on his leg. Overall, I was impressed with the frank responses Mr Valach gave to the questions asked of him.
40 Mr Valach had incorrectly underestimated his weight at the time of the transport accident. In his initial affidavit, he had stated he weighed 103 kilograms, whereas the medical records from the Western Hospital indicated he weighed 130 kilograms the day after the transport accident. Mr Valach corrected his pre-accident estimated weight at the commencement of his evidence. He was then cross-examined in relation to how such an error had occurred. I accept Mr Valach’s explanation that he genuinely thought he did not weigh that much at the time of the transport accident and was conscious of being told he had gained considerable weight after it. I also note that the medical records indicate he had lost some 10 kilograms in a one-month period in the middle of 2017. I make no criticism of Mr Valach for the mistaken estimate he provided in respect of his weight at the time of the accident.
Permanent serious disfigurement
41 It was accepted that Mr Valach’s scars are permanent. The issue in dispute is whether or not the scar can be fairly described as serious.
42 In assessing whether the scarring satisfies the statutory threshold, I must, in accordance with the principles enunciated in Humphries v Poljak,[1] be satisfied that the consequences to Mr Valach can be described as at least, “very considerable”.
[1]Humphries v Poljak [1992] 2 VR 129
43 As was noted by Callaway JA in Ingram v Ingram,[2] a claim under sub-paragraph (b) should not be assessed in isolation, and the disfigurement must bear comparison with such injuries as a serious long-term physical impairment, a severe psychiatric condition or the loss of an unborn child.[3]
[2][1996] 2 VR 435
[3]Ibid at 438
44 In Baker v Transport Accident Commission,[4] the Court of Appeal stated that in assessing such a claim, regard should be had to the number of scars, their location, size and the degree of obviousness.[5] This decision was subsequently approved by the Court of Appeal in Transport Accident Commission v Garcia.[6] In a joint judgment, the court approved the relevance of Humphries, and the earlier authorities of Ingram and Baker. It also stated that, consistent with the decision in Richards v Wylie,[7] the court can have regard to a plaintiff’s mental response to the scarring.[8]
[4][1997] I VR 662
[5]Ibid at 664-665
[6][2015] VSCA 225
[7](2000) 1 VR 79
[8][2015] VSCA 225 at [27]
45 When I observed Mr Valach’s scar on his left calf, I considered it to be particularly unsightly. It is relatively large, significantly indented and is plainly obvious. Mr Valach would see it every time he looked at his calf without long pants on, and it would be clearly visible to others if he wore shorts.
46 The scar on his upper thigh is less ugly and less obvious, but nonetheless is an additional scar on Mr Valach’s body.
47 I am satisfied Mr Valach is embarrassed and self-conscious of the scars, especially the one on his calf. I accept that Mr Valach wears long pants to avoid people seeing it. I accept that, as a consequence, this has limited his ability to play sporting activities he previously enjoyed, especially table tennis. I accept Mr Valach’s explanation why he will not play such sport in long pants, which is in part as it results in increased sweating in his leg, which in turn exacerbates his itch. I consider this to be a very considerable consequence to Mr Valach.
48 Mr Valach sought to rely upon the loss of sensation in his left leg and the incessant itch, as physical symptoms which should be taken into account in my assessment of his application under sub-paragraph (b). However, the TAC disputed this, on the basis that the loss of sensation and itch were a result of the saphenous nerve damage and not the scar. Further, the TAC submitted that even if those symptoms were causally related, it was impermissible for me to take them into account under sub-paragraph (b).
49 Having considered the medical opinions of Professor Davis and Dr Freilich, I am satisfied that the damage to the saphenous nerve has resulted in the loss of sensation and itch. Such symptoms are not confined to Mr Valach’s scar but extend throughout his left calf. I consider the opinion by Mr Behan, that there might be some scar tissue related to this nerve damage, to be vague and insufficient to satisfy me that the scar is a cause of such physical symptoms. I therefore have no regard for these in my assessment of Mr Valach’s claim under sub-paragraph (b).
50 In considering the consequences to Mr Valach, I have had regard to his predicted life expectancy, as it is relevant to determine the period in which he will suffer these consequences.[9] Mr Valach is relatively young. He was 27 years of age at the time of the accident and is currently 29 years of age. He has a predicted life expectancy of approximately another 50 years, during which time he will have to live with these unsightly scars.
[9]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1, [17]; [2010] VSCA 69; Davidson v TAC [2015] VSCA 12, [50]
51 In conclusion, when compared to the range of other injuries and impairments assessed under this scheme, I am satisfied that the scarring suffered by Mr Valach can be fairly described as a serious disfigurement.
Serious long-term impairment or loss of a body function
52 Having accepted that Mr Valach’s scarring is of itself serious, it is not necessary for me to separately consider whether the impairment to his left leg satisfies the statutory threshold under sub-paragraph (a). However, in brief compass, I will explain why I also consider that Mr Valach satisfies this limb.
53 Mr Valach was upfront in stating that he does not suffer pain in his leg and that it does not cause him a physical restriction in his ability to perform tasks such as standing and walking. However, Mr Valach described the itching in his leg as agony. He said this is a regular sensation, that he suffers on a daily basis, for which he can gain no relief. Mr Valach said he slaps his leg, but this does not take away the itching. I note that this itching is exacerbated when Mr Valach’s leg overheats, which often occurs when he wears long pants.
54 I also accept that Mr Valach’s sleep is regularly interfered with due to this itching.
55 I consider the endurance and frustration of daily itching an unrelenting consequence to Mr Valach, that can be fairly described as very considerable.
Conclusion
56 Mr Valach’s application for leave to commence a claim for common law damages therefore succeeds. I shall make the consequent orders.
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