Davidson v Transport Accident Commission [2014] VCC 1130

(a) A fracture of the distal radius of the left wrist;

(b) A fracture of the ulnar styloid process;

(c) A whiplash injury;

(d) Scarring;

(e) Abrasions and lacerations;

(f) Psychological trauma.

2 Ms Davidson was given a general anaesthetic, and the fractured left wrist was manipulated and plastered. She was told to return for review in four weeks. On review on 16 February 2009 the wrist was found not to have healed, and operative treatment was required. The following day she underwent an open reduction and internal fixation using a volar wrist plate. Her wrist was put in plaster for some two weeks after the operation.

3 She was discharged to the treatment of her general practitioner, Dr Neville Leslie, who carries on practice at the Murchison Medical Clinic in Murchison. When she saw Dr Leslie on 23 June 2009 she said she was experiencing continuing pain and had a restricted range of movement in the left wrist. She also suffered anxiety and flashbacks. Dr Leslie referred Ms Davidson to orthopaedic surgeon Mr Ian J Critchley, who has rooms in Shepparton; to a physiotherapist, Ms Cullum; and to West Hume Primary Medical Health. Ms Davidson received only one physiotherapy session because of difficulty with a Transport Accident Commission claim form. She attended West Hume Primary Medical Health twice, but she said:

"I did not attend any more as I did not feel comfortable with the service they were offering me."

4 At her consultation with Mr Critchley on 28 June 2010 she said he told her:

"... that the plate that I had extended somewhat more than what was considered to be normal and that there was the possibility of a screw penetrating the cortex in the region of the radial styloid. He recommended removal of the plate."

5 That operation took place on 12 August 2010. She said heavy overgrowth of bone over the plate was discovered and removed.

6 Ms Davidson continues under the care of Dr Leslie. She receives Panadol or Nurofen "on an as needs basis". In an affidavit that she swore in May 2011 she said her then symptoms included a deep throbbing pain in the left wrist which was always present, though varying in severity depending on activities and the weather. She said the left wrist was "extremely painful" if her hand was knocked. She said she had a reduced range of movement in the left wrist. She also said that pain could be provoked in her left forearm:

"... by finger and wrist extension. It is a shooting type of pain that lasts for a few minutes. This occurs daily. I get pins and needles every now and then."

7 She complained of reduced grip strength in the left wrist. She complained also of difficulty sleeping due to pain. She said that she had nightmares and flashbacks of the accident on a weekly basis. She also complained of a scar "on the volar aspect of my left wrist", 75 millimetres vertically and 25 millimetres horizontally. She said the scar was hypersensitive. This scar causes her particular embarrassment because of the apprehension that people seeing it associate it with a suicide attempt. As a result, rather than wearing sleeveless tops as previously, she tries to cover her arm as much as possible.

8 She says that she is depressed all the time. She feels hopeless. Her self-confidence has diminished. She is easily frustrated and irritable and often exhausted.

9 In 2006 she finished Year 10 at Rushworth P-12 College. In cross-examination it was put to her that her normal school career ended at that time because of issues such as fighting and drinking.[1]

10 The following year she undertook the first year of what is known as the 'VCAL program in Hospitality'. This is a two-year course which is intended to provide a qualification equivalent to the VCE but with a more vocational emphasis. The program entailed three days per week of school, and work at a local area hotel. At the end of the first year of the VCAL program Ms Davidson expected the hotel to offer her an apprenticeship, having worked there as a kitchen-hand through 2007. She says she was led to expect the apprenticeship. In the end, no offer was made. She did not work at all in the course of 2008. Since she was neither employed nor engaged in full-time education, her father declined to allow her to continue living in the family home. The following year she completed a Certificate III in General Education, which was equivalent to the second year of the VCAL program, giving her a qualification equivalent to the VCE.

11 At the beginning of 2010 Ms Davidson began studying for a course in 'Law and Liberal Arts' conducted by the Adult Centre for Education in Shepparton. This required work three days a week for six hours a day. Completion of this course, it was hoped, would open the way to study for a law degree at La Trobe University. Regrettably, however, she was living at Rushworth and the engine of her car blew up. She was without transport and could not complete those studies. She was living with friends at Rushworth, having moved out of the family home at Murchison in the circumstances already described.

12 The follow-up surgery removing the plate took place in August 2010. The surgeon, Mr Critchley, in his report said that wrist flexion "significantly improved". Ms Davidson agreed that there had been some improvement, but she did not accept the adverb "significantly".

13 Ms Davidson said in an affidavit sworn in May 2011 that she could:

"... do most of [her] activities of daily living, but do them much slower than [she] did before the accident, and at times [she] need[ed] assistance with such things as [her] hair."

14 She said that she had difficulty opening jars and bottles in the kitchen, and cannot carry a washing basket to the clothesline. She has difficulty washing heavy dishes. Before her accident she boxed and played netball. Since the accident she contemplated returning to play netball, but was:

"... scared that the wrist is too weak and that if I fall on it it will be re-injured."

15 She said she can no longer drive a manual car. She now drives a car with an automatic transmission.

16 Ms Davidson swore an updating affidavit on 30 May 2014. She said that she continued to suffer pain in her wrist, which becomes especially painful in cold weather or following lifting. Even lifting a 2-litre bottle of Coca-Cola aggravated the pain. She said that she has reduced movement and strength in the wrist.

17 She gave birth to her son Seth in January 2013. She said that she was restricted in her ability to care for him. She said:

"When he was young it was painful to breastfeed him because of the position I needed to hold him in. Bathing him was and remains difficult and I often needed help to do this. I am worried that because I couldn't feed and bathe him without difficulties, we won't have 'bonded' perfectly."

18 She has difficulty with shopping. Carrying shopping on the left side requires draping the bags from her left forearm rather than holding them in her left hand. She gains relief by using a hot pack and taking Nurofen. She also does wrist exercises, "but it really only provides partial relief". She remains concerned and embarrassed about the scar to her wrist.

19 She said that her family has a strong work ethic, with her father working as a truck driver. One of her sisters previously managed a KFC outlet in Shepparton, and her brother is a qualified butcher by trade. She said:

"I am sure that, but for my injury, I would have found and sustained employment."

20 She said that she tried working as a cook at a roadhouse in Wahring, but after three days her pain was aggravated and she had to leave. Another attempt at working at a United service station in Nagambie proved abortive. Her duties included stocking shelves and cooking. She said she "found it almost impossible to use the deep fryers because of the lifting involved." A trial at a Darrell Lea outlet was also unsuccessful. She was required to wash dishes and other food-handling items as well as carrying them:

"This caused a great deal of pain in my wrist and I could not keep working there."

21 The Transport Accident Act 1986 establishes a regime whereby there is a general compensation scheme for persons injured in transport accidents in Victoria without proof of fault. Correspondingly, however, the Act restricts the entitlement which an injured person might otherwise have to claim damages for negligence. Section 93(1) excludes damages claims except in accordance with the provisions of the section. Sub-section (2) allows a person injured in a transport accident to recover damages in respect of the injury if the injury is "a serious injury". Sub-section (17) defines serious injury as follows:

""serious injury" means -

(a) serious long-term impairment or loss of a body function; or

(b) permanent serious disfigurement; or

(c) severe long-term mental or severe long-term behavioural disturbance or disorder; or

(d) loss of a foetus."

22 Sub-section (17A) establishes certain special provisions relative to paragraph (c) of the definition which had not come into force at the time of the plaintiff's accident and are therefore irrelevant.

23 Sub-section (3) provides that an injury is to be deemed a serious injury if, in accordance with the permanent impairment provisions of the Act, ss46A, 47(7) or 47(7A), the degree is determined to be 30 per cent or more. Where no such determination of impairment of 30 per cent or less has been made, the damages claim may only be brought if a court gives leave in accordance with ss(4). This requires the application of the definition of "serious injury" described above. This is commonly referred to as the "narrative" test.

24 In the present proceeding, the plaintiff relies solely on paragraph (a) of the definition. The classic exposition of the operation of the definition of "serious injury" which applies in this case is to be found in the joint judgment of Crockett and Southwell JJ in Humphries & Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129. Their Honours said:

" ... we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs(17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think "long term" is not an expression likely to give rise to difficulty. To be "serious" the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be 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"? Beyond such guidance it is, we think, not possible to go."[2]

25 Complications arise where, in the context of an application for leave based on paragraph (a) of the definition, elements of psychological or psychiatric impairment are in play. In Richards v Wylie [2000] VSCA 50; (2000) 1 VR 79 the plaintiff had suffered whiplash injuries with pain and stiffness in the neck, shoulders and arms and certain other physical symptoms. The medical evidence indicated that these symptoms could not be organically accounted for and that they seemed to have been produced by psychological factors. The trial judge accepted that the plaintiff had suffered a serious injury for the purposes of paragraph (a) of the definition based upon the physical symptoms despite the evidence that they were non-organically generated. Winneke P, Buchanan and Chernov JJA set aside the grant of leave. Chernov JA said that:

"It is likely that in many cases the injuries caused by a transport accident will have physical as well as mental consequences for the plaintiff, with the result that it may appear that either definition could be appropriately applied in determining whether the relevant injury is a "serious" one. In such circumstances, which test is appropriate will fall to be determined by the consideration of what is the dominant cause of the plaintiff's condition. Is it predominantly the result of the physical injuries arising from the accident, or is the dominant cause of the condition the mental and psychological factors flowing from the accident? But whichever test is to be applied, in determining if its requirements have been satisfied, all the relevant consequences for the plaintiff arising from the accident are to be considered. Thus, if it is decided that, in a given case, the test in para(a) is appropriate because the plaintiff's relevant condition has been brought about predominantly by the relevant physical injuries, in deciding whether the relevant impairment is serious and long term, regard is to be had not only to the physical cause of the impairment, but also to any mental or behavioural disturbances flowing from the physical injury, such as "functional overlay" to which the President refers in his judgment."[3]

26 His Honour continued, stating that, where the dominant cause was psychological, then the application for leave should be determined under paragraph (c) of the definition. In broad terms, therefore, paragraph (a) is concerned with the consequences of organic injury and paragraph (c) is concerned with injuries which are psychologically or psychiatrically driven. However, in considering the application of the definition in paragraph (a) to physical injury, one considers not only the organic consequences but, in His Honour's words, "any mental or behavioural disturbances flowing from the physical injury, such as "functional overlay"".

27 Here, the plaintiff relies solely on the paragraph (a) definition and the success of her application must be judged by reference to the organic injuries and consequences, primarily, but also by reference to mental or behavioural disturbances flowing from the physical injury. It seems in this respect to be almost a mirror image of the operation of s46B of the Act with respect to the assessment of permanent impairment which requires the assessor to exclude from consideration psychiatric and psychological impairment which is secondary to physical injury. The effect, then, is that for impairment assessment purposes, only so-called primary psychiatric impairment maybe considered. In practical terms this means Post-Traumatic Stress Disorder or some cognate condition such as an Adjustment Disorder flowing from "the shock of the moment". It would seem from the analysis of the Court of Appeal in Richards v Wylie that for s93 purposes, "primary" psychological factors are to be excluded from an analysis of whether an injury is serious by reference to paragraph (a) of the definition.

28 Dr Neville Leslie is a general practitioner. He and Dr Susan Furphy have provided the ongoing care and treatment for Ms Davidson since her accident. In a report to Ms Davidson's solicitors dated 21 September 2009, Dr Leslie reported that on initial presentation Ms Davidson had no palmar flexion of her left wrist, though dorsiflexion was present. She was referred for treatment to orthopaedic surgeon Mr Ian Critchley. A further report dated 18 December 2010 recited the history of the further referral for correction to Mr Critchley for a surgical revision, including the removal of the plate fitted initially. Dr Leslie said that Ms Davidson "has had a fractured left distal radius from her transport accident". He said that she also suffered "post traumatic stress disorder from her accident". Dr Leslie produced a number of radiological reports, including a report dated 19 October 2009 which noted:

"Metallic plate and screws transfixes metaphyseal fracture distal radius. Ulnar styloid fracture. Un-united with small ossicle distal to the ulnar styloid."

29 Mr Ian Critchley, who carried out the remedial surgery in August 2010, reported that following the remedial surgery he reviewed Ms Davidson on 9 December 2010, at which time:

"She reported that she had intermittent pain in her wrist, but the wrist was essentially functioning well. She was concerned about the scar on the volar aspect of the wrist. ... The range of dorsiflexion of the wrist was normal compared to the opposite side. Radial deviation of her wrist was reduced by 10 degrees compared to the opposite side. Forearm rotation was normal. Elbow and shoulder were normal. Her grip strength was slightly reduced compared to the right side, but she is right hand dominant, and even taking into account the fact that she is right hand dominant, I think that her grip strength was impaired."

"Her left wrist flexed to 50 degrees which was improved on the situation prior to plate removal."

"She has done well considering the nature of the injury. Range of motion of the wrist is only slightly impaired, and I would consider that her situation is stabilised at this point."

32 He said he thought it was likely she would develop degenerative disease of the wrist joint at some stage in the future, "and this may or may not impact significantly on her wrist function." He said that strenuous use of her wrist would likely give her discomfort, "and any occupation that requires this is probably not going to be a suitable occupation for her".

33 Mr Damian Ireland, orthopaedic surgeon, assessed Ms Davidson for medico-legal purposes at the request of her solicitors, and reported in a letter dated 31 March 2010. Under the heading 'Current complaints' he recorded:

"Bronwyn complains of stiffness in the left [the report actually states right but this must be a typographical error] wrist and in particular inability to fully flex the wrist. She also complains of pain which is episodic. She locates this vaguely around the ulnar side of the wrist. She is not certain which particular movements or positions provoke this pain. ... In addition to this ulnar pain she also describes pain on the palmar and radial aspect of the distal forearm which is provoked by finger and wrist extension."

34 Mr Ireland noted that there was no obvious deformity to the wrist:

"... but there was increased subcutaneous fat over the dorsal distal forearm giving the appearance of mild 'dinner fork' deformity."

35 He found her palmar flexion at 40 degrees, extension at 65 degrees, radial deviation 15 degrees, and ulnar deviation 25 degrees. He found no evidence of carpal-tunnel syndrome. He also found no wasting of the intrinsic muscles and no trophic skin change. There was no temperature difference between the left and right hands, and there was no temperature gradient in her left arm. Mr Ireland said:

"In my opinion it would be wise to remove the now redundant internal fixation device from the volar aspect of the distal radius at the left wrist as the metal work can act as a stress riser for subsequent injuries, the screws if prominent can cause tendon complications and being unaware of the long-term consequences of foreign material in young patients it is wise to remove it when its task is completed."

36 He believed that Ms Davidson's condition had stabilised. He observed:

"I do not believe that the injury will have any significant impact on your client's ability to work in any occupation she chooses. She has some minor restriction of palmar flexion on the left non-dominant wrist which is of no functional consequence. She has confirmed that she will be unable to pursue her aspirational work as a chef. Although she may have some difficulty in the short-term with this due to discomfort, I believe this will settle with the passage of time. Removal of the internal fixation device may have a positive impact on this."

37 He recorded the difficulty which Ms Davidson had "handling heavy kitchen implements due to pain in the left wrist".

38 Mr Ireland carried out a further updating assessment on 11 June 2014. He reported to Ms Davidson's solicitors in a letter of the same date. He noted that at the time of the reassessment she was rearing her 18-month-old son whom she cared for as a single parent in rented accommodation. He said:

"Bronwyn appears to be an independent person ... She attends to all normal activities of daily living and household chores. She receives financial support from her son's father."

39 Mr Ireland viewed an update x-ray image dated 6 June 2014. He noted the continuation of the non-union of the ulnar styloid originally identified radiologically in 2009. He said:

"There was early degenerative change at the radio scaphoid joint. The radial angle had increased to 20 degrees and there was a 2-millimetre ulnar minus variance."

40 He said there was no carpal tunnel instability "and the lateral view revealed normal inclination of the radius articular surface to the long axis of the bone". He diagnosed "left wrist dysfunction due to early traumatic arthritis following open reduction and internal fixation of an intra-articular fracture involving the left wrist joint". Despite identifying the early arthritis he said:

"... there is no current indication for any further treatment. It is possible that further surgical treatment may be necessary in the years to come. I doubt that any surgery would be a consideration within the next ten years. Further surgery based on currently available information would take some form of limited wrist arthrodesis."

"As stated above, no treatment is currently indicated. With the 'passage of time' there is likely to be indolent progression of symptoms with increasing discomfort and diminished movement as the traumatic degenerative changes progress."

"She would be able to lift loads up to 5 kg in an unrestricted manner and be able to lift loads of up to 10 kg using both hands on a limited basis. With an understanding employer, I do not see that this would preclude her from pursuing an apprenticeship as a baker."

43 Mr John Anstee, a specialist in plastic and reconstructive surgery, assessed Ms Davidson at the request of her solicitors on 26 November 2009, conducting an assessment of permanent impairment, presumably in accordance with the AMA Guides. He said:

"At present Ms Davidson has a whole person impairment of 6 per cent due to abnormal motion at the left wrist. She has, in addition, a 2 per cent whole person impairment due to scarring alone. We have therefore a total whole person impairment of 8 per cent. I am persuaded that a 2 per cent impairment is appropriate for the scar, as any scar on the volar aspect of the wrist excites unnecessary comment from those observers unable to mind their own business. Volar scarring is associated with episodes of self-harm."

"The range of movement of the left wrist is reduced with flexion severely limited."

45 He also observed constant pain in the left wrist. He noted that surgery to remove the plate would be conducted at some point. Mr Anstee provided a supplementary report dated 23 March 2011, apparently based on the provision of colour photographs of the scar. Mr Anstee said that this further photographic material made the 2 per cent impairment assessment "very easy to defend, and 3 per cent should be considered, even allowing for the difficulties of making assessments by photographs".

46 Orthopaedic surgeon Mr Peter Moran assessed Ms Davidson's for medico-legal purposes at the request of her solicitors on 7 July 2010. He observed that she presented "without evidence of exaggeration and certainly without evidence of abnormal illness behaviour". He noted a "hyper-sensitive scar on the volar aspect of the wrist and distal forearm". He noted a slight loss of grip strength. He found extension of the left wrist at 70 degrees and flexion at 15 degrees. Ulnar and radial deviation was measured at 10 degrees. He found an impairment of the upper extremity at 15 per cent which he converted to a 9 per cent Whole Person Impairment. He suggested that a further assessment should be made relative to the scar.

47 Mr John A Buntine, a plastic and hand surgeon, carried out a medico-legal assessment of Ms Davidson on 19 March 2014 at the request of the solicitors for the Transport Accident Commission. As at that date she said that she had been troubled by frequent pain because of the need to lift her 14-month-old son, weighing 13 kilograms. She complained of pain "in the proximal volar part of her left forearm often [lasting] for 10 minutes to over one hour". On a bad day she complained that "pain in her left forearm and wrist lasts all night", and that she then also experiences pain on the ulnar side of the wrist. She said that she takes two Panadol Osteo before going to bed, and one Nurofen Plus after having burning pain that day.

48 Mr Buntine noted that Ms Davidson's grip in her left hand was "very weak". She complained of limited flexion in the left hand, and embarrassment relative to the scar. He noted the complainant said she had difficulty cooking for herself, and with all types of housework. She said, as recorded by Mr Buntine, that she feels unable to engage in her previous recreations of boxing and netball. Mr Buntine found palmar - that is, forward - flexion of the left wrist, limited to 30 degrees only. He did not attempt any passive flexion. Extension occurred to 55 degrees, "while radial deviation of the wrist was 25 degrees and ulnar deviation occurred to 20 degrees". He said he noted no abnormal laxity or crepitus. He said:

"The grip of the right hand measured 30kg (normal). However, the circumference of the left forearm 18cm proximal to the flexor crease of the wrist was only 1.5cm less than that of the right forearm at the same level (26.5cm compared with 28cm). The measured difference in circumferences is consistent with diminished use of the left hand and arm and with a weakened left-hand grip but not with a hand grip of only 3kg."

49 He found no evidence of carpal-tunnel syndrome. He said he observed Ms Davidson as a:

"... pleasant young woman of above average intelligence who is frustrated by the present circumstances of her life. I believe she would like to undertake what she would regard as meaningful work but it will be very difficult for her to make appropriate arrangements to obtain work or to train in a field which would help her to obtain work because the opportunities to work and to train for work are limited where she lives and it would be difficult for her to move to an area where her opportunities would be better because of her reliance on family and friends to help to look after her 14-month old infant ..."

"... my judgment is that Ms Davidson would be physically able to undertake a wide range of employment including retail sales, child care and clerical work if it were not for the circumstances described above which make it difficult for her to do so."

"I expect she would be able to undertake a wide range of different types of unskilled work despite some difficulties with her left hand if she did not have the responsibility of caring for her child and that, if it were not for the child, she would be able to work full-time (or to train in a field which would allow her to work full-time). However, realistically, it seems likely that unskilled part-time work is all that will be available to her for a number of years."

52 Professor Stephen Davis provided a medico-legal assessment to Ms Davidson's solicitors and reported by letter to them of 13 January 2010. He found that:

"While there is no neurological impairment, there is clearly both orthopaedic impairment, psychiatric impairment, and impairment of the scarring of the left wrist. These issues will need to be assessed by the relevant specialists."

53 He said that her injury has a good prognosis but it has "unfortunately ... severely compromised her career prospects." He noted the risk of future development of carpal-tunnel syndrome.

54 Dr Chris Baker, a specialist in occupational medicine, provided a series of medico-legal reports to the Transport Accident Commission. His first letter of 29 August 2012 reported on an assessment carried out that day. He found that palmar flexion was reduced by 50 per cent and that she exhibited a reduced grip strength in the left hand. He said:

"Of note, the fact that she was able to turn the door knob, it is a stiff door, and leave the examination suite without making any comment about difficulty using her left arm and hand to undertake this task."

55 Dr Baker suggested a vocational assessment. He carried out a further assessment on 1 November 2013 which he reported to the Commission's solicitors in a letter of the same date. He noted a reduced range of movement in palmar flexion, "and could only palmar flex the wrist by about 30 degrees." He found a slight reduction in dorsiflexion. The grip of the left hand was weak. He noted that following the formal examination she was able to get up from the couch and dress. He made the same finding that was made by Mr Moran who found Ms Davidson's presentation honest and straightforward with no evidence of abnormal illness behaviour. He said:

"I consider she has the ability to undertake some cooking work for which she would be reasonably trained or qualified. However, if it is a large kitchen, based on her statements, I do not believe she could lift and move heavy pots or pans which contain soup or other items. However, I consider she could work in a small kitchen and I could see no reason why she should not work on a full-time basis."

56 Consultant psychiatric Dr Michael Epstein assessed Ms Davidson on 4 March 2010 for medico-legal purposes and furnished a report on the assessment by way of letter dated 5 March 2010 to Ms Davidson's solicitors. After taking an exhaustive history, including a summary of the reports and findings of orthopaedic treaters, Dr Epstein recorded:

"She feels depressed most of the time. She feels hopeless, helpless, useless, worthless, and tearful. Her self-esteem and self-confidence have dropped."

57 He noted that she had no problems with memory or concentration and was still interested in her appearance. She was embarrassed about her weight gain and had occasional suicidal thoughts. He found there was no evidence of any problems with intellectual functioning or thinking. He observed:

"Her affect was restricted, and she appeared depressed and mildly anxious during the interview. There was no evidence of any thought disorder, hallucinations, or delusions. Her speech was quite normal."

He diagnosed a mild chronic Adjustment Disorder with depressed mood. This led to a 10 per cent psychiatric impairment with 5 per cent attributable to post-traumatic stress disorder, so-called "primary psychiatric impairment."

58 Ms Sue Sloan, a neuropsychologist, assessed Ms Davidson on 5 January 2010, reporting to her solicitors in a letter of 5 January 2010 - that is, the same day - that there were no indicators that Ms Davidson had sustained a brain injury. She continued:

"The current neuropsychological assessment revealed that Ms Davidson was functioning within the Low Average to Average range on the majority of cognitive tasks administered. Relative strengths were observed in visuospatial reasoning and information processing speed. Weaknesses were observed in verbally-based tasks and mental arithmetic. These areas of weaknesses appear to be long-standing and not related to Ms Davidson's vehicle accident on 24 January 2009."

59 At the forefront of the plaintiff's case for leave to bring a damages claim in accordance with s93 was the contention put by her counsel, Ms Forbes, that Ms Davidson had been deprived by the accident of the career to which she aspired as a chef. Ms Davidson's mother spoke of her daughter's "passion for food preparation". In her affidavit she said:

"I am very confident that but for her accident Bronwyn would by now be a qualified chef."

60 Ms Forbes, in presenting the plaintiff's case, relied on an affidavit from a Mr Guppy who is the chef and proprietor of Friar's Café, a well-known eating establishment in Shepparton. He described his own career path to becoming a chef and a restaurant proprietor. He said that working in a kitchen does not involve heavy lifting.

"However, because the work is very rapid and intense, it is critical to have good wrist function and to be able to exert strength through the wrist."

61 He stressed the psychologically demanding nature of work in a restaurant kitchen and continued:

"Any significant injuries to the arms or hands will cause significant problems for a person hoping to work in a professional kitchen. If a person had restricted wrist movement or could not use their wrists in a strenuous or repetitive manner, or knew they would be prone to carpal tunnel syndrome, I would recommend they consider another line of work."

62 Ms Forbes submitted that, whilst an established chef of seniority might be able to continue despite a wrist injury such as Ms Davidson has suffered because of his or her ability to demand some of the heavier work be carried out by more junior people in the kitchen, this would not be a practicable scenario for a person like Ms Davidson who has not qualified and is not established in the trade and would have to "come up through the ranks" doing the heavier work.

63 I accept that Ms Davidson's wrist injuries now preclude her from becoming a chef on purely physical grounds. It was not suggested that the restriction of palmar flexion of the left wrist would be problematic but the loss in grip strength and the inevitable tendency to "favour" the left wrist because of pain, would be incompatible with her now establishing herself as a chef.

64 The more difficult question is whether, had the accident not occurred, she would have achieved her ambitions. Her year's work as a part time kitchen-hand at the local area hotel in 2007 did not convert into an apprenticeship as a chef. It may be that this reflected adversely on her performance in the work in 2007 or it may be, as Ms Davidson believes, that she was "led on" with the expectation of an apprenticeship to enable the hotel proprietors to have the advantage of her work in 2007 at the cheap price of $5 per hour. Whichever is the correct interpretation, it goes to underline the difficult path which lies before an aspiring young chef. It seems far more than merely a passion for the preparation of food is required. In January 2009 when the accident occurred, there was little to indicate that Ms Davidson was going to be able to fulfil her ambition.

65 Her work in the food industry in 2007 had proved abortive. Of her situation in 2008, her mother said:

"I remember she seemed to drift somewhat after this [the failure to obtain an apprenticeship as a chef] happened, and this was aggravated by her lack of success in finding an apprenticeship after moving to Melbourne before the accident."

66 On the eve of the accident in January 2009, there seemed little to indicate that her life would not roll over into a further year of "drift". In these circumstances I cannot make a finding that Ms Davidson would have achieved her ambition to be a chef but for the accident on 24 January 2009.

67 The defendant placed great reliance on the birth of Ms Davidson's son, Seth. Through its counsel, Mr Jens, it contended that this consideration demonstrated that Ms Davidson had not been deprived of a career opportunity as a result of the accident.

68 A plaintiff in the situation of the nursery rhyme character "the old woman who lived in a shoe ... who had so many children that she didn't know what to do ..." might be regarded as having opted out of the paid employment market for an indefinite period. Ms Davidson's situation is very different. She has completed a single pregnancy and is now caring for her infant son. There is no reason to think that she will rear so large a family that she will be out of the employment market into the indefinite future. Mothers, particularly single mothers, these days make early returns to paid employment. There are many means to achieve this aim. There is a formal Government sponsored child care regime. There are informal arrangements for child care made with friends and family members. Children go to kindergarten and to school. These days, maternity often marks only a brief interval out of paid employment. A woman who suffers injury in a transport accident so as to preclude her from paid employment suffers significant consequences for the purposes of s93 of the Transport Accident Act, even if she is, for the moment, out of the employment market because of maternal duties.

69 Nevertheless, Ms Davidson's maternity is of some significance in the present case. Aside from some short term trials, she has been out of paid employment since her transport accident. In itself, this might support a finding that the consequences of the injury have deprived her of the opportunity for employment. Mr Buntine, it will be recalled, felt that Ms Davidson would be able to undertake a wide range of unskilled work, but that her duties as a mother precluded her from taking up those opportunities as of this year. I accept his evidence in this regard. Further, as Mr Jens submitted, the last trial employment undertaken by Ms Davidson in October 2012 found her six months into her pregnancy. These days, there are both State and Federal statutes prohibiting a range of discrimination. Nevertheless, whatever the law might say, it seems unlikely that an employer would wish to appoint as a permanent employee someone who, within a short couple of months, would be required to depart on maternity leave. The attitude of an employer to an applicant in those circumstances would be quite different to the employer's attitude to a long-serving and established employee. It follows that I do not accept that Ms Davidson's absence from the workforce since the transport accident in itself proves that her capacity for employment was destroyed by the accident. Her employment prospects have been limited but not too drastically. She said she was about to commence work marketing "adult products" using a program similar to the "Tupperware Party" plan.

70 Before the accident Ms Davidson played netball and did some boxing. I accept that her wrist injury rules both of these sports out now. The evidence did not suggest these sports were of great significance in her life. Frequently, in the transition from adolescence to adulthood, people drop out of organised sport. In Ms Davidson's case it seems unlikely that a mother with an infant son would continue boxing. The loss of these recreations is an adverse consequence of her injury, but not an especially grave one.

71 I accept that Ms Davidson continues to suffer significant pain in her left wrist. The medical and surgical advice she has received is that no further treatment is now appropriate or likely to hold out any hope of relief. She has for the last several years for the most part been able to get by with over-the-counter analgesic medication without resort to prescription drugs. This has changed more recently, presumably because of the additional stress placed on her wrist by her maternal duties. In terms of the formulation in Humphries v Poljak, I accept that the pain and suffering employment and recreation consequences of her injury are significant and perhaps marked, having regard to the range of other injuries and their consequences. I do not, however, accept that they merit the description of "very considerable" which would be necessary for the success of this application. Arthritis has begun to develop but its progress is not suggested to be rapid.

72 The final matter relied on by Ms Forbes was the scar on Ms Davidson's left wrist. The problem as disclosed by the evidence is that a casual observer may conclude that Ms Davidson has engaged in a suicide attempt or other act of self-harm. I viewed the scar myself. It does not seem to me to be especially prominent. Ms Davidson complained of hypersensitivity and this clearly does have certain pain and suffering consequences. Nevertheless, it does not appear that, in the absence of some mishap, it creates much restriction upon her ability to carry out her daily living activities or to engage in employment. Moreover, as Mr Jens submitted, the scar as a piece of disfigurement, is properly to be considered under paragraph (c) of the definition of serious injury which is not relied upon for the purposes of the present application. The considerations relative to the scar, therefore, do not alter the conclusions that I have reached based on the other material.

73 Since the statutory test, as interpreted by the Full Court in Humphries v Poljak, has not been met, this application must fail.

[2] [1992] VicRp 58; [1992] 2 VR 129, 140

[3] [2000] VSCA 50; (2000) 1 VR 79, 90