Willoughby v Transport Accident Commission
[2017] VCC 563
•23 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-03003
| JUSTIN ROY WILLOUGHBY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 March 2017 | |
DATE OF JUDGMENT: | 23 March 2017 | |
CASE MAY BE CITED AS: | Willoughby v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 563 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: serious injury - claim under paragraph ‘a’ of the definition of serious injury - injury to the left clavicle - plaintiff claims he did not make a full recovery - plaintiff claims he suffers pain - plaintiff does not take prescription medication - plaintiff returned to full-time employment - claim under paragraph ‘b’ of the definition of serious injury - permanent serious disfigurement - scarring - scarring over the left shin - three scars in total - whether the scar can be concealed under shorts - plaintiff claims that people comment on the scarring - comparison with like disfigurements
Legislation Cited: Transport Accident Act 1986
Cases Cited:Dwyer v Calco Industries Pty Ltd(No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kovacic v Transport Accident Commission [2016] VSCA 139; Ingram v Ingram & Anor [1996] 2 VR 435; Baker v Transport Accident Commission & D’Alberto [1997] 1 VR 662; Garcia v Transport Accident Commission [2015] VCC 140; Transport Accident Commission v Garcia [2015] VSCA 225; Richards & Anor v Wylie (2000) 1 VR 79
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis | Shine Lawyers Pty Ltd |
| For the Defendant | Mr A Clements QC with Ms A Wood | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 The plaintiff is a forty-two-year-old married man and father of two young children who was injured in a transport accident which occurred on 26 March 2016.
2 The plaintiff suffered an injury to his left clavicle and lacerations to his left shin.
3 His application for serious injury is made pursuant to paragraph (a) of the definition of “serious injury”, that is, he says that he has suffered a serious long-term impairment or loss of the function of his left upper limb, and, pursuant to paragraph (b), that is, he says that he has suffered a permanent serious disfigurement resulting from the scarring over his left shin.
4 The plaintiff was employed as a storeman for a short time prior to the transport accident. That employment came to an end as a result of the transport accident.
The left upper limb impairment
5 The plaintiff was transported from the place where the transport accident occurred to the Albury Base Hospital by ambulance. His left shoulder was x‑rayed, which revealed a fracture through the left clavicle. The radiologist noted that the alignment of the clavicle was satisfactory.[1]
[1]Plaintiff’s Court Book “PCB”) 36-37 and an MRI scan, at PCB 38
6 An x-ray was also taken of the plaintiff’s left lower leg which did not reveal any bony abnormality. The laceration over his left shin was treated by the application of “dressings” rather than requiring suturing. It would appear that he was reviewed for a short time and then discharged from the care of the hospital. At the time of discharge, the plaintiff was provided with a sling in which he carried his left arm for about six to eight weeks, after which it was discarded.
7 The plaintiff was last reviewed by Dr Nakagawa, surgeon, on 8 April 2010.[2] It would appear that he treated the plaintiff when he was admitted to the hospital. He prepared a report dated 8 March 2016, which is very brief. Apart from noting that he saw the plaintiff on 8 April 2010, he then added “The consultation indicated full recovery without any problem”.[3]
[2]PCB 47
[3]PCB 47
8 Under cross-examination, the plaintiff denied that he had made a full recovery. He admitted that he had not sought any medical or paramedical treatment since 8 October 2010 for either the injury to his left clavicle or the scarring over his left shin.
9 In his last affidavit sworn 17 March 2017, he described the level of pain he experiences in his left shoulder in the following way:
“9I would describe my left shoulder pain as a constant dull ache. This increases when I put pressure on it. Work is the real problem because I am either driving or unloading with the hand trolley and at the end of each working day my shoulder just continues throbbing. I rub gel on it and give it a good rub and try and move it, but it hurts and the pain doesn’t go away. It just lessens with rest.”[4]
[4]PCB 29
10 The plaintiff described the degree of pain he suffers to medical practitioners who examined him on a medico-legal basis. Under cross-examination, he was referred to the description he gave to Dr Journeaux, consultant trauma and orthopaedic surgeon, of the variable nature of his pain. He told Dr Journeaux that the severity ranged between 1 out of 10 and 5 out of 10.[5] He described the pain at 1 out of 10 as a throbbing type of pain and the pain at 5 out of 10 as being like sticking something sharp into his shoulder.[6] I took the latter to mean that at 5 out of 10, it is a sharper and higher grade of pain.
[5]Defendant’s Court Book (“DCB”) 21
[6]Transcript 37
11 Under cross-examination, the plaintiff admitted that he has not taken any prescription medication of any kind since he was discharged from the hospital. He said that he uses Nurofen gel which he rubs into his left shoulder, and Panadol and Nurofen for pain relief. During his oral evidence, he said that he uses either Panadol and Nurofen each day.[7]
[7]Transcript 36
12 The plaintiff was challenged regarding the quantity of medication he uses. He was referred to histories recorded by a number of medical practitioners which demonstrate that his resort to medication is significantly less. Mr Doig recorded that the plaintiff “is currently on occasional Panadol”.[8] Dr Slesenger recorded that the plaintiff is not taking “any medication”.[9] Mr Journeaux recorded that the plaintiff was resorting to “intermittent Nurofen on an as required basis”.[10] In his second affidavit, he said that he was taking medication “no more than 2-3 times per week, usually when I’m not working”.[11]
[8]PCB 102
[9]PCB 94
[10]DCB 22
[11]PCB 29
13 The plaintiff denied that what those medical practitioners recorded is the true position of his use of medication. In relation to what he swore to in his affidavit, he said that likewise, it is not the true position. His explanation for what he swore to in that affidavit was that he probably had not read the affidavit carefully before he swore that the contents were true and correct.[12]
[12]Transcript 25
14 The plaintiff returned to full-time work within a matter of months after the transport accident. He has maintained full-time employment, and at present, is employed as a storeman/driver. He works a minimum of 45 hours per week and on occasions as much as 60 hours per week. In the same affidavit, he described the work he presently undertakes in the following way:
“3I continue to be employed as a truck driver, driving rigid freezer trucks. The contents are split in two, half frozen, half dried foods including boxes of chips. I don’t undertake any heavy lifting, it’s relatively lightweight and I am supplied with a trolley.
4My left shoulder remains the biggest problem for me because it impacts upon my ability to work and I’m restricted in what I can carry and manoeuvre. I do my best; I don’t really complain and just put up with the fact that my shoulder has remained symptomatic for many years.”[13]
[13]PCB 28
15 Later, in the same affidavit, he described some of the problems he is having with his work in the following way:
“7Part of the job that I do requires lifting in the warehouse, however I am unable to perform this task due to my shoulder and I don’t do it. My employer has been incredibly supportive of me and other people are allocated the warehouse tasks. I’m concerned about the possibility that if my employment was to end I would struggle to get similar work due to my physical restrictions, however at the moment, I’m enjoying my work, I work hard and I pushed through with pain.”[14]
[14]PCB 28
16 Under cross-examination, the plaintiff said that the lifting is required of him only occasionally, and he gave the example of lifting a slab of bottles of water.[15] Otherwise, he described what he was required to lift as being relatively light, and it was my impression that he considered that level of lifting to be manageable.
[15]Transcript 21
17 Under further cross-examination about his capacity for work, he was referred to the history recorded by Dr Silva, general practitioner, who attended the plaintiff at his home on 18 May 2016. The plaintiff had been suffering from abdominal pain for two days. Dr Silva recorded that the plaintiff told him that he was undertaking work “… involving heavy lifting, loading or unloading”.[16]
[16]PCB 48
18 This was put to the plaintiff that it was in contrast to what he swore to in his affidavits and what he had told other medical practitioners that he was effectively doing light work, and when in fact he was doing heavy work and was able to tolerate it well. The plaintiff denied that what Dr Silva recorded was true.[17]
[17]Transcript 20
19 Apart from the plaintiff’s evidence that he is incapacitated for work as a storeman/driver to the extent I have summarised above, and that he must resort to the use of medication in the quantities which he said he uses daily, he otherwise described the consequences of the impairment of the function of his left upper limb in the following way:
· constant pain and restriction of movement in his left shoulder.[18]
[18]PCB 15
· engaging in play with his children who are five and three years of age - the eldest a boy and the younger a girl. It was clear enough to me that it was the roughhouse play which his five-year-old son likes to engage in which might involve him grabbing onto his left arm which posed a difficulty for the plaintiff, not engaging in ballgames such as soccer and rugby, because his son is not up to playing those sorts of games in a conventional sense.[19]
[19]PCB 28 and 35 and Transcript 35
· using his left hand to put something in his shirt pocket, and wearing heavy clothing over his left shoulder will cause an increase in pain.[20]
[20]PCB 16-17
· repetitive movements of his left shoulder will cause an increase in pain.[21]
[21]PCB 17 and 29
· interference with sleep.[22] He was challenged, based upon a history recorded by Dr Serry, that it was a problem which had troubled him well before the transport accident.[23] However, the manner in which Dr Serry recorded what the plaintiff told him about his problems with sleep are equivocal and do not support the conclusion that it was a problem which predated the transport accident.
[22]PCB 18 and 29
[23]PCB 63 and 73
· throwing a ball to his dog with his right hand increases the pain in his left shoulder, as do quick movements of his left shoulder.[24]
[24]PCB 18
· engaging in domestic tasks such as hanging clothing on the line causes an increase in pain, as does engaging in gardening tasks.[25]
[25]PCB 17-19
· fishing and camping expeditions have been reduced to the point where he has only gone fishing three times in the last two years. Casting a line with a fishing rod causes an increase in pain.[26]
· his relationship with his wife has deteriorated because he becomes tired and cranky due to the pain in his left shoulder.[27]
[26]PCB 19 and Transcript 29-30
[27]PCB 18 and 29
20 All of the medical evidence relied on by the plaintiff and the defendant are medico-legal assessments which were undertaken fairly recently.
21 Dr Gillett, orthopaedic surgeon, examined the plaintiff on 19 January 2016. He considered that the fracture of the plaintiff’s left clavicle had gone on to heal; had stabilised; would not deteriorate in the long term, and would not impact upon his capacity for employment nor his activities of daily life. He considered that the plaintiff’s prognosis was good.[28]
[28]PCB 58-59
22 Dr Slesenger, occupational physician, examined the plaintiff on 15 December 2016. He considered that the plaintiff’s left shoulder injury had stabilised and had reached maximum medical improvement; that he would not anticipate any deterioration; that he does not require any further medical treatment, but he had some reservations about whether the plaintiff could remain working as a deliveries driver.[29]
[29]PCB 99-100
23 Mr Doig, orthopaedic surgeon, examined the plaintiff in January 2017. Although he expected the plaintiff’s fracture to his left clavicle to have fully settled after six-and-a-half years, he considered, and no doubt on the history given by the plaintiff, that the plaintiff had “only done moderately”.[30] He was concerned whether the injury to the plaintiff’s left clavicle had stabilised. He considered that his prognosis was moderate, and he toyed with the prospect whether the plaintiff should have a further radiological investigation of his left clavicle. The plaintiff has not taken any step to have any medical treatment consistent with Mr Doig’s view.
[30]PCB 102-104
24 Dr Journeaux examined the plaintiff on 15 February 2017. His opinion regarding the healing of the fracture of the left clavicle, stabilisation, the plaintiff’s capacity for work and the impact upon his general activities is consistent with Dr Gillett, and basically consistent with the opinions of Mr Doig and Dr Slesenger.[31]
[31]DCB 19-28
25 If there is significant difference in these medical opinions, it is restricted to the impact upon the plaintiff’s capacity to work as a truck driver and his capacity to engage in activities of daily life. None of these medical practitioners said that the plaintiff cannot work as a truck driver, and none say that he cannot work a minimum of 45 hours per week and a maximum of 60 hours per week. The doubt is whether his subjective complaints of pain and restriction of movement suggest that he may become unsuited to work as a truck driver.
26 In Dwyer v Calco Industries Pty Ltd (No 2),[32] Ashley JA enunciated a thesis which I think is very helpful in determining whether the consequences of an impairment of a body function are “serious”. He said:
“Finally, I agree with the submission for the respondent that in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”[33]
[32][2008] VSCA 260
[33]at paragraph [27]. See also Kovacic v Transport Accident Commission [2016] VSCA 139
27 In addition to the foregoing, there are a number of other decisions of the Court of Appeal, commencing with Haden Engineering Pty Ltd v McKinnon,[34] in which Maxwell P referred to a number of relevant considerations to an assessment of pain and suffering consequences. Essentially, these are:
[34](2010) 31 VR 1
· what the plaintiff says about the pain in court and to doctors
· what the plaintiff does about the pain
· what the doctors say about the extent and intensity of the pain; and
· what the objective evidence shows about the disabling effect of the pain.
28 There are other decisions of the Court of Appeal which refer to particular consequences which speak of seriousness which I do not think it necessary to refer to here.
29 The plaintiff said in his affidavits that he has constant pain. However, he repeated in his oral evidence and reported to examining medical practitioners that he has done practically nothing about the pain except to consume over-the-counter medication. I should say at this point that I am not satisfied that the plaintiff resorts to the use of that medication daily because it is seriously contradicted by what he said very recently in his third affidavit, and what he said to a number of medical practitioners.
30 Under cross-examination, the plaintiff was asked why he did not seek medical treatment if he was experiencing such a significant degree of chronic pain. His answers were unsatisfactory. He had really no explanation for why he did not seek that medical treatment except to say that he preferred to tolerate it, and that taking medication might have interfered with his capacity to undertake work as a truck driver.[35]
[35]Transcript 23
31 Essentially, as I have already observed, there is no significant controversy in the medical evidence. The best medical evidence for the plaintiff is Dr Slesenger, who expressed doubts about the plaintiff’s capacity to continue working in his present occupation based upon the plaintiff’s subjective complaints; however, Dr Gillett, Mr Doig and Dr Journeaux had a different view. Dr Gillett and Dr Journeaux did not accept that the plaintiff was suffering from an injury which would interfere with his working and non-working activities. Mr Doig was prepared to accept the plaintiff’s subjective complaints of pain and interference with his working and non-working life, but was not prepared to go as far as Dr Slesenger.
32 Counsel for the plaintiff submitted that I should be more inclined to accept the opinion of Dr Slesenger because he is an expert in the field of occupational medicine. Whilst that is not in doubt, it cannot be the case that it brings the opinions of three orthopaedic surgeons to nought. I have given proper account to the opinion of Dr Slesenger and his particular expertise, but I am not persuaded that it overwhelms the other medical evidence and should be preferred.
33 The objective medical evidence appears to me to demonstrate that the fracture of the left clavicle healed and has left the plaintiff with reasonable function in his left shoulder and arm, and is certainly more than adequate for him to engage in what must be reasonably arduous work requiring him to drive a truck and make deliveries between 45 to 60 hours per week.
34 I accept that the plaintiff probably does have some pain in his left shoulder, and there are some consequences consistent with those which I have summarised above; however, I do not accept his evidence that he suffers those consequences to the degree he contended for. I think the fact that he is able to work without incident, and has not had any medical treatment, is inconsistent with what he contends for.
35 Therefore, I am not satisfied that the plaintiff’s claim that the pain and suffering consequences of the impairment of the function of his left shoulder are serious when a comparison is made with like impairments.
The disfigurement
36 The plaintiff referred to the scar over his left shin in each of his affidavits.[36] Essentially, he describes two products of the laceration over his left shin, they being, the scarring, and the physical consequences of the scarring.
[36]PCB 19-20, 30 and 35.
37 I am concerned with the scarring and its consequences, but not the loss of function caused by the scarring.[37] It is permissible for me to have regard to the mental response of the plaintiff to the scarring.[38]
[37]Ingram v Ingram [1996] 2 VR 435; Baker v Transport Accident Commission & D’Alberto [1997] 1 VR 662 and Transport Accident Commission v Garcia [2015] VSCA 225
[38]Garcia (ibid) and Richards & Anor v Wylie (2000) 1 VR 79
38 Counsel for the plaintiff referred me to the opinions of Mr Stapleton, plastic surgeon, who examined the plaintiff on 15 December 2016.[39] He described the scarring as follows:
“There is a V-shaped scar over the front of the upper part of his shin on the left leg; the inner scar is 3 cm in length, the outer scar is 2 cm in length and, as can be seen in the photograph I have enclosed, those scars are stretched quite considerably.
He has a 15 cm long scar overlying the shin and, at the lower part of that scar, he has a scarred area that extends over a distance of 4 x 5 cm.”[40]
[39]PCB 86-89, and he provided an earlier report after having a teleconference with the plaintiff. It would appear that Mr Stapleton was reliant on photographs of the scarring rather than a close visual inspection and examination of the scarring during the teleconference.
[40]PCB 88
39 The photographs in the Plaintiff’s Court Book are almost useless because they do not depict the scarring accurately when compared with the close inspection I undertook in the presence of Counsel. I took the extra step of photographing the scarring with my iPhone after which I sent those photographs to Counsel.
40 Describing scarring is difficult. The description given by Mr Stapleton is very accurate after I made a comparison of his description with what I saw.
41 In Baker v Transport Accident Commission & D’Alberto,[41] Brooking JA made the following observation relevant to a determination whether disfigurement produced by scarring was serious:
“… This admittedly permanent disfigurement is ‘serious’. I say that having regard to the number of scars, their location, their size and the degree of obviousness.”[42]
[41]Supra
[42]at 664-665
42 It is a helpful observation because it has directed my attention to what I must consider in the determination of whether the scarring over the plaintiff’s left shin is serious, they being, the number of scars, their location and their obviousness.
43 There are three scars over the plaintiff’s left shin. One is just to the right hand side of his kneecap. It is stretched, and further to the right is a smaller scar which looks to be the size of a 10 cent coin which is indented. Beneath that scar is the longer scar extending from 15 centimetres down the right side of the plaintiff’s shin. There is further scarring to the left side of the plaintiff’s shin which is difficult to see even close-up.
44 The location of the scarring and the size of the scarring to the left side of the plaintiff’s shin is obvious when observed at close range.
45 Essentially, the plaintiff’s evidence was that because he lives in the relatively hot climate of Queensland just north of Brisbane, he tends to wear shorts when working, but on other occasions he will wear long pants because he wants to cover up the scarring. He referred to his son and other persons commenting on the obviousness of the scarring.[43]
[43]Transcript 33
46 The plaintiff is embarrassed by the scarring, particularly when he is asked about it by strangers. At one point he was considering disguising it with a tattoo, but thought better of it.[44]
[44]PCB 20
47 I note that the plaintiff was examined by Dr Serry on 7 March 2016 [45] and on 15 December 2016.[46] The plaintiff emphasised the injury to his left shoulder on each occasion that he was examined by Dr Serry, although, he did inform him that he suffered an injury to his left lower leg which Dr Serry recorded as a “Left Leg wound”.[47] His diagnosis was that the plaintiff had experienced transient low mood, ongoing stress, apprehension and frustration, and a degree of traumatisation in relation to the transport accident. This diagnosis appears to be limited to the consequence to the plaintiff of the injury to his left clavicle, and not the disfigurement.
[45]PCB 61-68
[46]PCB 71-77
[47]PCB 62 and 72
48 Counsel for the defendant referred me to Garcia. I am intimately aware of the facts of Garcia because I was the trial judge. I granted Mr Garcia leave to bring a proceeding at common law. The Court of Appeal dealt with a number of grounds of appeal based upon my reasons for judgment.[48]
[48]Garcia v Transport Accident Commission [2015] VCC 140
49 I note in Garcia, the Court of Appeal dealt with the level of detail contained in my reasons:
“Further, while it may be said that the reasons for judgment do not contain the level of detail about consequences that one might ordinarily see in a para (a) case, this is to be expected in circumstances where the consequences of scarring (in this case, as in perhaps many cases) are not likely to be something about which one can dilate at length. Indeed, when one examines this court’s judgment in Baker, one sees little (if any) detail in the judgment of the court concerning the consequences of the scarring in that case — which consequences were found by the court to satisfy the description ‘permanent serious disfigurement’.”[49]
[49]at paragraph [30]
50 After inspecting the scarring and considering the number of scars, their location, size and degree of obviousness, and also considering the evidence of the plaintiff and the relevant medical evidence, I am not satisfied that the disfigurement is “serious” when compared with like disfigurements.
Conclusion
51 Therefore, I order that the plaintiff’s Originating Motion be dismissed.
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