Adam v Transport Accident Commission
[2024] VCC 261
•14 March 2024
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-02129
| BARBARA MAY ADAM | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 26 February 2024 | |
DATE OF JUDGMENT: | 14 March 2024 | |
CASE MAY BE CITED AS: | Adam v Transport Accident Commission | |
| MEDIUM NEUTRAL CITATION: [First revision 26 March 2024] | [2024] VCC 261 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – bilateral shoulder impairment – causation
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dordev v Cowan & Ors [2006] VSCA 254; Philippiadis v Transport Accident Commission [2016] VSCA 1; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison KC with Mr A Dimsey | Stringer Clark Lawyers |
| For the Defendant | Ms F Ryan SC with Ms M Williams | Solicitor to the Transport Accident Commission |
HER HONOUR:
1This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 14 October 2017 (“the said date”).
2Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3
The definition of “serious injury” relied upon by the plaintiff is under
s93(17)(a) – “a serious long term impairment or loss of a body function.”
4The body function pursuant to sub-paragraph (a) relied upon by the plaintiff is bilateral shoulders, predominantly the right.[1]
[1]Transcript (“T”) 1
5The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
6The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.
7The plaintiff swore two affidavits and was cross-examined. She also relied on an affidavit sworn by her son, Scott, on 20 February 2024. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
8Causation was the main issue in dispute together with “seriousness.”[2]
[2]T27
Plaintiff’s evidence
9The plaintiff is presently aged seventy-four, having been born in September 1949. Prior to the said date, she had not experienced any problems with her shoulders or arms.
10The plaintiff was injured in a bus accident returning from a bowls trip to Mildura on the said date (“the accident”). She understood the bus left the road and rolled near Avoca. She had neck and right arm pain and was taken by ambulance to St John of God Hospital in Ballarat, where she underwent a range of investigations and was given pain relief and discharged after one night.
11Thereafter, she had follow-up care with Dr Maher and Dr Hartnell, general practitioners. She had ongoing neck pain and pain in both shoulders and was referred to physiotherapy at Newington Physiotherapy for an extended time. Her neck pain settled down after a while, but not her shoulder pain.
12In 2020, she was referred to Mr Luke Spencer, orthopaedic surgeon, and Dr Greg Harris, sports physician. She was given cortisone injections into both shoulders in late 2020 and again in 2021, which helped to reduce her symptoms but after a while they returned. Her physiotherapist also gave her exercises to do at home.
13As at January 2023, she continued to experience pain in both shoulders and arms.[3] The pain in her right arm and shoulder was the worst of the two. It was mainly in her upper arms, but sometimes moved down the arm into the forearm. It was not constant and seemed to increase with any activity using her arms, particularly if that involved raising them.
[3]First affidavit, sworn 31 January 2023
14She continues to experience pain in both shoulders, although the right remains the worst. Her symptoms continue.[4]
[4]Second affidavit, sworn 9 January 2024
15In her first affidavit, she described struggling with lifting anything more than a few kilograms with either arm. If she engaged in activities using her arm, she noticed pain increasing in the evening afterwards. She had flare-ups from time to time when she overdid it. When her arms were painful, it was difficult to get comfortable in bed and get to sleep.
16She continues to avoid heavy lifting or forceful pushing or pulling as it results in immediate increase in her pain which can continue for hours or even days after a flare-up. As much as she can, she favours the use of her left arm, as it is now the stronger of the two.
17She tries to avoid the use of medications but relies on Nurofen to control the pain and needs to take it several times a week when the pain is at its worst. She tries to avoid taking it more often as she is aware it impacts on her stomach.
18Her current treatment involves exercises at home, suggested by her physiotherapist, which she does daily for about fifteen minutes. They are helpful in controlling symptoms and allowing her to use her arms, albeit with significant limitations.
19She had adapted techniques to dress and put on her bra from the front. She continues to cope with washing and dressing and doing many things around the home by making adjustments which have become part of the new normal for her.
20Last year, she purchased a lightweight vacuum which she could manage but needed to use her left arm, as she found that using her right caused increased pain. She found hanging out the washing very difficult and mostly hung clothing on the clotheshorse and inside the house which did not require as much lifting.
21She is able to manage her shopping by limiting herself to getting a few items on each occasion and favours the use of her left arm to carry her shopping. She needs help with bulky shopping.
22She had moved closer to where her son lived to make it easier for him to come and help in the home and garden.
23She continues to receive terrific support from her son, daughter-in-law and grandchildren, who come around regularly to help with small jobs in the house or garden that she cannot manage. She would be lost without this support.
24She continues to drive an automatic car, but usually limits herself to short local drives as she needs to rest her right arm and rely on her left mainly for steering. Longer drives cause increased right shoulder pain.[5]
[5]T25
25As at January 2023, she had been able to return to lawn bowls but could only carry two bowls at once, and frequently experienced shoulder pain. She enjoyed the social aspect of playing so she tolerated the pain and continued to participate.
26She still bowls but not as frequently as before the accident. She used to regularly play four times a week but now usually plays twice a week. She enjoys the social side of bowls, but she can still only carry two bowls at a time, which can be annoying.
27She continues to enjoy knitting but cannot do it for long now and needs to ensure that she is positioned so her arms are supported. She used to enjoy knitting for hours at a time but now cannot manage for long before it becomes increasingly painful.
28She really feels that her shoulder injuries, particularly the right, have taken away a lot of her independence. She used to be totally self-reliant but now relies on the support of family to cope at home.
Cross examination
29Cross examination focussed largely on the onset of the plaintiff’s shoulder pain.
30She confirmed the initial pain after the accident was in her neck and right arm and was concentrated in the forearm/elbow area. She had physiotherapy for that pain. Her forearm area all went black “so they were concentrating more on that”.[6]
[6]T4
31In cross examination, she did not directly answer any questions about when her shoulder pain started. When asked did she tell Mr Vo, as he recorded, that over time she developed persistent pain in her right shoulder, she replied – “Well, it had all – it’s referred pain from the shoulder to my arm, yeah”. She did tell him she developed persistent pain in the right shoulder over time:
“Well, the pain was always there but not as much cause it’s all – everyone was concerned about the total bruising and everything of my arm – the lower part of my arm was all – when I saw the orthopaedic surgeon Luke Spencer and had x-rays of it, it was all from shoulder cause I had torn ligaments in my shoulder.”[7]
[7]T6
32When asked again did she remember when her right shoulder started to hurt, she said:
“Well, my shoulder was there but not as prominent as what my arm was. … Well it was happening at the time but because there was more pain in the lower I didn’t worry about the shoulder as much because there was more pain in the lower part of my arm.”[8]
[8]T6
33When asked whether she told Dr Maher about her shoulder pain, she said:
“Yes I did but it was more – he concentrated more on the state of my lower arm.”[9]
[9]T6
34When asked when she first told Dr Maher, she said it was when she saw Dr Hartnell. When it was put to her that she did not tell Dr Hartnell until after she had seen Mr Spencer in October 2020 – three years after the accident – she said:
“The pain was there, but I just thought over time it would go and it didn’t. It just kept getting worse.”[10]
[10]T7
35The plaintiff then agreed she did not specifically talk to Dr Hartnell about her shoulder until 2020. She just put up with the pain over time, but it was not improving.[11]
[11]T8
36She could remember seeing Dr Harris on 7 June 2019, complaining of pain between the shoulder blades and telling her that she had not injured herself. She would have made that complaint (and that she had not injured herself). She had not had a fall or anything, she was just more concerned about the pain in her back, her shoulder blades.[12]
[12]T9
37She did not think she had told Dr Harris she had had shoulder pain since the accident. She did not mention “about the bus or anything like that” because Dr Harris was not her regular doctor. She did have troubling shoulder pain since the accident, but she did not associate it with the accident.[13]
[13]T9
38Whenever she had a medical issue or needed a script, she went to the doctor.[14]
[14]T10
39Dr Hartnell took over from Dr Maher as her main doctor. Dr Hartnell noted on 3 July 2020 that the plaintiff had a problem with dermatitis when painting her house. The plaintiff explained she was fixing up indoors. She was not painting the whole house. She was using her left hand more than her right. The painting was just door handles and “stuff like that … where it’s chipped”.[15]
[15]T11
40She had treatment at Newington Physiotherapy immediately after the accident – from October to March 2018. She agreed her main concern then was her neck and right forearm. When told she did not tell the physiotherapist about any shoulder problems in that time, she said – “it stemmed from that, but this was more affected than the shoulder. So that’s why they – we concentrated more on that.”[16]
[16]T11
41In the months after the accident, she did not worry about the shoulder as much because she thought once the arm was fixed the shoulder would be okay. She would not disagree there was no record of her complaining about her shoulder in that time because she was concentrating more on her right. She agreed her right elbow has improved.[17]
[17]T12
42When it was suggested she could have then told her physiotherapist if she was having shoulder pain, she said the physiotherapist gave her exercises to do, so that helped with the movement and everything with her shoulders and also with her arm.[18] She agreed she was always having the same treatment in that early period at Newington.[19]
[18]T12
[19]T13
43She agreed that the treatment she had in the early stage at Newington was soft tissue work to her neck and forearm. On 6 November 2017, she had filled out a TAC form in support of funding for physiotherapy treatment for “neck whiplash, right elbow/forearm.”[20]
[20]T21
44She first mentioned to Newington about her right shoulder after she had seen Mr Spencer and he did the x-ray and saw where the problem was starting from. It was a referred pain from the shoulder so that was when she went back to Newington and “they started from there”.[21]
[21]T13
45In response to the suggestion – “Well, if you’re waiting for her right arm to fix up that wouldn’t explain why you wouldn’t tell the physio about the left shoulder,” she explained she was concentrating more on the right, not so much on the left. Her right was her prominent arm and that is the one that was affected more by what she was doing.[22]
[22]T14
46While her physiotherapist had noted in November 2017 that the plaintiff was able to play bowls nearly every day now, the physiotherapist told had her she could play, it was not that she did play every day. Pre-accident, she played anything up to four or five days a week. She played Pennant in Ballarat once a week. She practised once a week. Probably one or two days a week she visited a country town to play, like Mildura. The accident happened while travelling home from a competition in Mildura.[23]
[23] T16
47She is now only able to carry two bowls from the car, not four as she did before the accident.[24] She was never playing every day, even before the accident.[25]
[24]T17
[25]T19
48While bowling in those early days after the accident, her main concern was her neck and forearm. She played in the occasional tournament after the accident. While her playing increased, she just put up with the pain. She figured there was no good just sitting at home doing nothing. She had to get out and continue with life.[26]
[26]T19
49In early 2018, the pain was in her arms and in her shoulders, but she had to get on with life. She “wasn’t sitting at home doing, you know, hoping that everything would improve, you know”.[27]
[27]T20
50She started seeing the physiotherapist again in November 2020 because that is when her shoulder pain started to get worse.[28] She saw a different physiotherapist, Charles Flynn, at that time.
[28]T20
51She had cortisone injections in October 2020. She first had shoulder treatment after seeing Mr Spencer. She had x-rays. He said all the pain in her arm came from her shoulders – “Everything to do with your arm is connected to your shoulder.”[29]
[29]T22
52She had an x-ray of her right elbow and forearm after the accident “but nothing on her shoulder” until after she saw Mr Spencer.[30]
[30]T22
53She agreed her main concern in the months after the accident was her right elbow and neck. They got better to the point where she was able to get back to bowls to a certain extent. Her shoulder was “sort of always there” but it got bad enough to see doctors in 2020.[31]
[31]T22
54When it was put that her shoulders were not “always there” and, in fact, the pain started in 2020, she said the pain was there:
“… but I just thought it was from my arm. I – concentrating more on my arm not my shoulders. And it wasn’t – and naturally your shoulders – everything comes from your – fits your arm from your shoulders.”[32]
[32]T23
55Throughout 2018/2019 and the first part of 2020, her forearm was not causing her as many problems. It was “always there”. She did not complain about her shoulder earlier – “it was all on my arm. I concentrated more on my arm.” Her forearm was “still there” in early 2018. The physiotherapist gave her exercises and said – “Look we can’t do any more with you. You’ve got to continue with these exercises” which she still does today and “that has certainly helped”.[33]
[33]T23
56Her right forearm did improve in 2018 but there was still pain – “But you can cut it.”[34]
[34]T24
57In the early years after the accident, she had pain in her shoulders but did not do anything about it. She just thought it would improve but it did not. When it was put to her she would have complained to her doctor when she attended for other issues, she said as long as she continued doing her exercises and everything, she just figured it would get better but it was not getting any better, which is why she went to see Mr Spencer.[35]
[35]T24
58She agreed she told Dr Vo in June 2023 she had only mild shoulder pain. That was on that day. She agreed she had good days and bad days.[36]
[36]T25
59In response to the suggestion that her memory was not great, she said she had always had pain in her right shoulder. The whole arm ached but it was more the bottom. She still had pain in it but nowhere near like she did in the lower half.[37]
[37]T25
Lay evidence
60The plaintiff’s son, Scott, swore an affidavit on 19 February 2024.
61Before the accident, the plaintiff was very active and went for lots of walks and played bowls regularly – training and participating in games multiples times a week.
62Since the accident, she bowls much less, maybe playing one game a week, because it is really hard for her shoulder as it causes too much pain.
63The plaintiff struggles to do certain jobs around the house and he helps her with ones involving heavier lifting, such as hanging out the washing. Really, any job that requires her to reach above is difficult.
64He now does a lot of the gardening for her like hedging, pruning, mowing the lawns, and has to help her lift things like pots. Pre-injury, she did not need any help from him in the house or garden and was self-sufficient and liked to do things herself.
65He notices that she now plays with his kids less than she did before the injury. She used to love taking them to play tennis. As she cannot play tennis now, she no longer takes them.
66She has trouble grocery shopping and finds carrying bags with both hands difficult, so he helps her carry the bags when he is around. Otherwise, she just carries one bag at a time.
67Ultimately, she has to be more careful about what she does and it definitely gets her down not being able to do things she could do before, particularly bowls, which she loves. She did not have any of these issues before the accident.
Plaintiff’s medical evidence
Treaters
Dr Kirrily Hartnell
68In her May 2023 report, Dr Hartnell at Ochre Health diagnosed bilateral shoulder pain with rotator cuff tears and bursitis.[38]
[38]The plaintiff’s first attendance with Dr Hartnell post accident was on 9 September 2018
69The history was initially, the plaintiff had neck pain and stiffness through her right forearm with haematoma, tender left knee and bruised left knee with haematoma lump.
70In her view, the plaintiff has ongoing bilateral shoulder pain which she manages with daily exercises for mobility. The plaintiff has to make sure she sits properly with support for her shoulders. She is reliant on her son to do any heavy lifting.
71In the past, the plaintiff has required cortisone injections and physiotherapy under the guidance of an orthopaedic surgeon and sports medicine physician.
72It is likely the plaintiff’s current condition – shoulder pain – will persist. She manages it with exercise and modification of activities. It may worsen over time as she is at the higher risk of developing shoulder arthritis.
73Ongoing exercises at home will be required lifelong. The plaintiff requires physiotherapy and cortisone injections for flare-ups. She may need the assistance of a sports medicine physician to guide treatment. She is slightly at higher risk of requiring treatment from an orthopaedic surgeon for shoulder arthritis in the future, though she was hopeful the plaintiff will be able to avoid surgery.
74The plaintiff would prefer to manage her own heavy lifting at home but relies on her son. She has had to move as she was no longer able to manage the lifting of heavy firewood and other home maintenance. She avoids travelling by bus, which has limited her ability to go on recreational outings with friends, and her ability to go on longer trips she would otherwise have liked to do in her retirement. She is still able to play bowls but is not able to lift four bowls at once, so she has to make two trips to deliver them.
75She thought the plaintiff’s shoulder injury was caused by the accident. Neck pain and stiffness were also caused by the same accident. The shoulder injury may have also resulted in some neck pain and it is likely that some of the neck pain was due to a whiplash-type injury.
Newington Physiotherapy
76The plaintiff first saw Jesse McIver at Newington on 6 November 2017. She was then complaining of a painful right elbow and forearm and bilateral neck stiffness.
77Treatment consisted of soft tissue work to the neck and right forearm. There were a further eight treatments during 2018 when it was recorded the plaintiff showed slow but consistent improvement.
78The plaintiff attended for further assessment in November 2020 having seen specialist Mr Spencer. She was then complaining of ongoing symptoms with her neck, shoulders and bilateral arm pain.
79Essentially, the ultrasounds confirmed rotator muscle tears and subacromial bursitis.
80Treatment consisted of mobilisation of the shoulders and cervical spine as well as mobilising and strengthening exercises. There was slow but gradual improvement, until the plaintiff was last seen in March 2021.
81Dr Flynn, the physiotherapist at that time, thought the plaintiff’s neck and shoulder issues were as a direct result of the accident. Given she had no prior shoulder problems, it was highly likely that the damage to the rotator cuff muscles was related to the physical trauma as a result of the accident. Her neck and right shoulder issues were a direct result of the accident.
82The cervical spine and the shoulder girdle complex are intimately related. It is common for recurring neck problems to cause shoulder problems and vice versa.
Mr Luke Spencer, orthopaedic surgeon
83Mr Spencer first saw the plaintiff In October 2020 on referral from Dr Hartnell.
84The plaintiff’s predominant problem since the accident was pain in the right upper arm and left upper arm radiating as far down as the forearm.
85On examination, the plaintiff was bilaterally impingement sign positive but had a well-maintained range of motion with no gross loss of power.
86The 2017 CT scan showed no significant cervical concerns but there had been no shoulder imaging at that stage. He arranged for x-rays and an ultrasound and, when seen on 30 October 2020, the plaintiff’s x-ray showed some mild glenohumeral arthrosis and her ultrasound had been reported as showing a full thickness supraspinatus tear.
87He had wondered whether this was in fact an articular sided partial thickness at that time and arranged for the plaintiff to have bilateral subacromial steroid injections performed by Dr Harris.
88When last seen on 23 November 2020, the plaintiff had a good response to the steroid injections and significant improvement. However, she still had some bilateral shoulder ache. She was happy with her improvement and ongoing physiotherapy, and he mentioned that he would be happy for her to have further subacromial steroid injections if required, understanding that if she had ongoing pain, or if it was not settling to her satisfaction, they could do another MRI.
89He diagnosed early glenohumeral arthrosis with a supraspinatus tear.
90The prognosis was that the plaintiff was likely to slowly develop increasing shoulder problems into the future and potentially develop advancing glenohumeral arthrosis or cuff deficient arthropathy. She may yet come to further subacromial steroid injections or, into the future, even reverse shoulder arthroplasty for the treatment of her condition.
91Her ongoing shoulder discomfort may cause problems with sleep, recreation, and social activities of lawn bowls. This may vary day to day depending on the amount of pain she experienced.
Investigations
92On 14 October 2017, the plaintiff underwent a CT scan of her head and cervical spine, chest x-ray and right elbow x-ray.
93There was an x-ray of the right elbow and forearm on 25 October 2017. The findings were no underlying bone or joint abnormality and no recent fracture or dislocation.
94The plaintiff had an x-ray of both shoulders in October 2020. It was reported there was minimal lateral inferior angulation of the acromion with mild impression of subacromial space with no higher-grade stenosis. There was mild degeneration of the AC and glenohumeral joints bilaterally.
95On ultrasound of the right shoulder, there was moderate tendon sheath effusion. Of the subscapularis, there was a partial thickness tear, superior one-third superficial fibres, 2 millimetres long by 7 millimetres wide.
96Regarding the supraspinatus, there was a full thickness partial width tendon tear measuring 29 millimetres by 27 millimetres. The infraspinatus was intact. The bursa was thickened with a large volume of fluid and synovial proliferation.
97On the left, subscapularis, there was a partial thickness tear mid one-third superficial fibres, 3 millimetres by 8 millimetres. At the supraspinatus, there was full thickness partial width tendon tear measuring 27 millimetres by 18 millimetres. Infraspinatus was intact. The bursa was thickened with a large volume of fluid and synovial proliferation.
Medico-legal evidence
Dr Graeme Doig, general orthopaedic and trauma surgeon
98Dr Doig examined the plaintiff in May 2022 for the purposes of an impairment assessment.
99The plaintiff told him that she injured her shoulders in the accident while leaning forward, pushing against the seat in front to brace herself.
100The plaintiff continued to complain of bilateral shoulder pain with difficulty using her arms overhead, more so on the dominant right side. She was taking Nurofen for shoulder pain and took Nexium for reflux and attended a physiotherapist occasionally. She avoided heavy lifting particularly with the arms outstretched and overhead.
101On examination, the plaintiff remained tender over the rotator cuff at the right shoulder and non-tender on the left. She displayed restricted active range of motion arcs at both shoulders. There was no neurological deficit in the upper limbs.
102He thought the plaintiff suffered bilateral soft tissue injuries to her shoulders with rotator cuff tearing on the ultrasound scan, more so on the dominant right side. The prognosis for any improvement must be guarded.
103The plaintiff will have less than 10-kilogram lifting, pushing and pulling restrictions with no more than 5 kilograms with each arm individually. She has difficulty using her arms over her head and certainly she should not be lifting weight overhead. She will require breaks when long distance driving and would find it easier in an automatic vehicle. These restrictions are permanent.
Mr Austin Vo, orthopaedic surgeon
104Mr Vo examined the plaintiff in June 2023.
105The plaintiff advised that after the accident, she initially complained of right elbow pain but over time, developed persistent pain in her right shoulder as a result of the accident and which she did not have prior to the injury.
106On examination of the right shoulder, abduction was limited to 90 degrees with a painful arc. Cuff strength testing revealed mild weakness of the supraspinatus (four out of five) and impingement signs were positive.
107The plaintiff had weekly hydrotherapy. She did her own exercise program at home and took Nurofen only as required.
108Currently, the plaintiff described only mild shoulder pain worse on the right compared to the left. The pain was localised over the superolateral aspect of her shoulders, associated with weakness, and exacerbated with overhead activity.
109In his opinion, the plaintiff sustained bilateral shoulder injuries. She currently has residual symptoms related to impingement syndrome and rotator cuff tears.
110The diagnosis of a bilateral shoulder injury due to the accident is bilateral shoulder impingement syndrome, subacromial bursitis, as well as rotator cuff tears.
111He thought the accident most likely either caused the plaintiff’s rotator cuff tears or at least aggravated or exacerbated them, as the plaintiff had no preceding bilateral shoulder problems.
112He did not think there was any relationship between her shoulder pain and any cervical spine issues.
113As a consequence of her physical injury and impairment of her bilateral shoulders, the plaintiff is still able to do some of her activities, not ones requiring repetitive overhead activity.
114Future treatment may be some further strengthening to improve shoulder function. It may be that scheduling a follow-up with the plaintiff’s orthopaedic surgeon is worthwhile just to see whether referring her for an MRI scan to more accurately assess the extent of the cuff tears and see if she may benefit from surgical intervention.
115The plaintiff’s overall prognosis is reasonable considering the extent of her injury and given the fact that she still has reasonable function.
116Mr Vo noted that Mr Speck diagnosed the plaintiff’s shoulder condition as being constitutional and age-related and completely disregarded that she did have a significant injury onboard the bus.
117Furthermore, Mr Speck’s assessment of the plaintiff’s shoulder was quite limited. In particular, he did not assess her for localised tenderness as well as assessment for individual rotator cuff strength. Mr Speck’s interpretation of imaging reports of a partial thickness rotator cuff tear was inaccurate, as the reports clearly state the plaintiff has a full thickness tear of the supraspinatus tendon albeit partial width.
118While the Newington physiotherapy records (2017/2018) contained an assessment and treatment of the plaintiff’s neck with no mention of shoulders, there is often considerable overlap between neck and shoulder pathology.
119The plaintiff had told him that her right shoulder symptoms commenced after the accident and have persisted since and she recalled no significant shoulder symptoms previously. Those symptoms progressively worsened over a period of time before she sought medical assessment in 2020.
120Therefore, in light of the above information, he maintained his opinion the accident is the most likely the cause of the plaintiff’s rotator cuff or least aggravated or exacerbated her tears, as she reported no previous significant bilateral shoulder symptoms.
Mr Garry Grossbard, orthopaedic surgeon
121Mr Grossbard examined the plaintiff on 28 November 2023.
122Initially, the plaintiff’s pain was noted to be in the cervical spine and right shoulder as the area of major concern, with mild shoulder pain on the left.
123The range of shoulder movement using a goniometer was rotation on the right, 10 degrees compared to 40 degrees on the left. Internal rotation on the right was limited to the hand reaching the waist level, whilst on the left side, the thoracolumbar junction could be reached. Reflexes in the upper limbs were normal but all power was collapsing. Sensation was normal.
124The radiological reports were available.
125Ultrasounds of both shoulders were undertaken in October 2020. Ultrasound on the right confirmed the presence of a moderate effusion within the biceps tendon sheath and, to a lesser extent, there were similar findings on the left. There was a full-thickness tear within the supraspinatus on the left as well as the right side with associated partial thickness tears of the subscapularis on each side.
126The plaintiff’s medication includes Nurofen once or twice each week, exercises, massage once or twice a year, and she sees a psychologist every six months.
127The major concern appears to be the right shoulder with the pain across the top of the shoulder occasionally radiating to the neck and upper arm. It is worse with activity and improves with rest and when the plaintiff supports it.
128Whilst the pain is intermittent across the shoulders, there is pain every day. It is particularly noticeable when she lifts her arm. She describes it as an aching pain and measuring seven to eight out of ten, and it is such that she avoids moving the shoulder. The left symptoms are similar but to a lesser extent and occur mainly with activity.
129There is very little ongoing neck problem. When it is there, it is on both sides of the neck posteriorly and, overall, the neck seems to have improved.
130As a result of the accident, the plaintiff had suffered an injury to her cervical spine in the presence of pre-existing degenerative disease. Those symptoms have largely settled but there is evidence of dysmetric neck motion without evidence of radiculopathy.
131There had been an injury to both shoulders. He doubted the accident had been responsible for the bilateral rotator cuff tears but may have been sufficient to bring on the development of capsulitis, particularly on the right where there was restricted motion in all directions and radiological evidence of biceps sheath effusion.
132The appropriate management would be to consider a hydrodilatation, particularly on the right. There was currently no indication for surgery. The situation was relatively stable and not likely to change significantly in the foreseeable future.
133As a result of her injuries from the accident, the plaintiff has developed symptomatic bilateral shoulder pathology which is sufficient to prevent her from undertaking her activities to the extent she was pre-accident. She also had a neck injury but that does not have a great deal of symptomatology in relation to it.
Associate Professor Abdul Khalid, consultant psychiatrist
134Dr Khalid examined the plaintiff via video in August 2021.
135In terms of her physical injuries, the plaintiff told him that her right arm was severely bruised in the accident and she had soft tissue damage. Her left arm was injured but not as bad as her right. She saw Mr Spencer and later had injections in both shoulders by Dr Harris.
136On mental state examination, the plaintiff said she got anxious when she thought about the accident. Her friend Carmel had died in the accident. She tried to distract herself from the distressing moments. She reported nightmares and avoidance behaviour. She was preoccupied with her perception of pain.
137Based on the history, mental state examination and the documentation provided, he considered the diagnosis was a mild Post-Traumatic Stress Disorder according to DSM-V.
138The plaintiff’s prognosis in that regard was fair but her mild PTSD symptoms were likely to persist into the foreseeable future.
Defendant’s medical evidence
Treaters
Dr Maher
139Dr Maher at Creswick Medical Centre reported to the plaintiff’s solicitor on 28 January 2021. He had seen the plaintiff ten days after the accident – on 24 October 2017. He then noted:
“minibus rollover. 4 seats back unrestrained. LOC, admitted overnight in sgog. Neck stiff and sore, swollen, bruised right proximal forearm cw haematoma. Tender left knee, bruised left breast.”[39]
[39]Also noted in the ambulance report
140Dr Maher saw the plaintiff again in December 2017.[40] As far as he was aware, the injuries had resolved, and the prognosis was good as there was no mention of ongoing issues in multiple consultations prior to October 2020.[41]
[40]The reason for the plaintiff’s visit was a skin check
[41]Twenty-two visits to the GP in total between December 2017 and October 2020
141On reviewing the records, the plaintiff saw Dr Hartnell in October 2020, complaining of ongoing issues related to the accident and she was then referred to an orthopaedic surgeon.
Newington Physiotherapy
142A Treatment Notification Form from Newington Physiotherapy dated 6 November 2017 set out the specific anatomical site of accident injuries and clinical diagnosis was neck-whiplash, right elbow forearm.
143An Allied health treatment and recovery plan completed by Newington in February 2021 described an injury to the right arm/neck bilateral left and right shoulders, rotator cuff tears confirmed by ultrasound 27 October 2020.
Medico-legal
Mr Gary Speck, orthopaedic surgeon
144Mr Speck examined the plaintiff in December 2023 after the TAC requested his opinion as to any physical injuries sustained in the accident, prognosis, and whether any injuries impact on her daily activities, leisure, and employment.
145He noted that St John of God Hospital Emergency Department record on the said date read:
“Presenting history R – injuries from RTA bus crash pain right arm, left breast, left arm, left knee and light headedness. Right elbow, left knee and left breast above the nipple, bruising was noted.”
146The secondary assessment diagram showed bruising on the right forearm up to the right elbow.
147On examination, current symptoms were across the shoulders and the plaintiff demonstrated across the deltoid and trapezius muscle with more troublesome on the right.
148The plaintiff described right shoulder pain as seven out of ten. She felt that pain would increase if she was not cautious in lifting groceries in and out of the trolley. She found Nurofen, heat and posture all of benefit in terms of helping her symptoms.
149On examination, movement of both shoulders was measured. On palpation posteriorly, there was tightness in the trapezius muscle, more on the right than the left, and discomfort on palpation over the trapezius muscle on the right and the upper paravertebral muscle adjacent to the right scapula, as well as tenderness over the rotator cuff region anteriorly.
150She had not had any problems with her shoulder pre-accident that she acknowledged.
151She lived with her husband who is on supplemental oxygen twenty-four hours a day for his emphysema and the downsizing was related to both their needs as well as proximity to the family when they moved about eighteen months ago to a smaller property at Miner’s Rest near her son and daughter-in-law. Her son helped around the house and garden.
152The plaintiff had played bowls three to five days a week bowls over summer, and otherwise enjoyed social activities related to the club. She still plays bowls one day a week and will practise for another day and perhaps another half day but has cut back the amount of bowls she does because of her right shoulder.
153He summarised the radiology and all the treatment and medico-legal reports.
154Mr Speck summarised the general practitioner’s notes from 24 October 2017. On that date, there was a note of neck stiff and swollen, bruised right forearm, tender left knee, bruised left wrist. Neck exercises and massage. Imaging requested.
155On the next appointment on 5 December 2017, there was a discussion of a breast haematoma but no other ongoing symptoms and there was no record in attendances in 2018 and 2019 of ongoing symptoms or specific shoulder problems.
156On 7 June 2019, the plaintiff saw Dr Harris, who noted pain between the shoulder blades and that the plaintiff had not injured herself.
157On 9 October 2020, the plaintiff attended Dr Hartnell, describing bilateral upper arm pain that was getting her down. It was recorded:
“Started with the bus accident nearly three years ago. Was significantly bruised at the time but deemed to be soft tissue injury only. Saw big trees coming towards her, leaned forward and braced on the seat in front her. Feels lucky to be alive (another passenger was killed).”
158The reason for the plaintiff’s visit was upper arm pain and a letter was written to Mr Spencer.
159There were no further general practitioner attendances in relation to any shoulder issue until 19 February 2021.
160The plaintiff was referred to Newington for treatment of her right upper extremity and neck symptoms with apparent resolution in terms of attendance at her local doctor and no mention of further symptoms there until late 2020. The physiotherapist did not mention any shoulder problems in 2017.
161Although on her history the plaintiff has had ongoing shoulder symptoms since the accident, there is no record contemporaneously to support any ongoing shoulder injury from that time.
162The plaintiff’s current imaging and restrictions of the shoulders were consistent with constitutional and age-related changes, as seen on the imaging, related to subacromial bursitis in the presence of tendinopathy and partial rotator cuff tears. These were managed with intermittent subacromial bursa injections with improvement in the level of function, and no intention for any operative intervention.
163The plaintiff’s current neck condition was consistent with a soft tissue injury at the time of the accident with resolution within six to twelve weeks being expected, and persistence of degenerative change seen on the CT scan at the time of her accident and mild restriction of movement is associated with that.
164There was soft tissue injury to the right elbow and forearm that had resolved with no ongoing symptoms. Soft tissue injuries to the left chest and breast and a soft tissue injury to the left knee had also resolved without ongoing symptoms.
165The physical examination described was consistent with the presence of ongoing constitutional symptoms arising from the shoulders.
166The soft tissue injuries to the affected areas would have resolved within six to twelve weeks of the accident.
167The current symptoms in the shoulders were supported by the 2020 imaging. He did not find any inconsistencies between the radiology and the plaintiff’s complaints.
168He would have expected if the other injuries had overshadowed the shoulder problems, they would have been noted within three months of the accident.
169He did not consider the transport accident caused any injury to the plaintiff’s shoulders.
Overview
170The plaintiff was involved in a very frightening bus accident when the bus in which she was travelling home from a bowls tournament in Mildura, rolled near Avoca. One of her friends was killed. The plaintiff was taken by ambulance to St John of God Hospital in Ballarat where she stayed overnight.
171While it is accepted the plaintiff injured her neck and right forearm in the accident – as confirmed in the ambulance and hospital records – in issue is whether she suffered any shoulder injury, the subject impairment of this leave application.
The Plaintiff’s evidence
172The plaintiff’s affidavit evidence about the onset of shoulder pain was brief and in general terms, and somewhat inaccurate.
173She deposed that after leaving hospital, she “had ongoing pain with … [my] neck and both shoulders and was referred to physiotherapy at Newington Physiotherapy for an extended time. The neck pain settled down after a while but not the shoulder pain.” She then went on to detail treatment in 2020, the referral to Mr Spence and Dr Harris, cortisone injections and home exercises.
174There was, however, no physiotherapy for her shoulder for an extended time and that treatment did not commence until over three years after the accident.
175The plaintiff was first told there was an issue with her shoulder when she saw Mr Spencer in October 2020. He said all the pain in her arm came from her shoulders – “Everything to do with your arm is connected to your shoulder.”[42]
[42]T22
What the Plaintiff has told others
176While the plaintiff initially maintained she complained to her former GP, Dr Maher, about her shoulder pain after the accident, it became apparent that was not the case. Her current GP, Dr Hartnell, first became aware the plaintiff had an issue with bilateral upper arm pain on 9 October 2020. Dr Hartnell then referred her to Mr Spencer to investigate the source of that pain.
177While she conceded she made no complaint to Dr Hartnell until October 2020, the plaintiff insisted she still had shoulder pain from the time of the accident. She gave a number of explanations for her lack of complaint – she just thought over time it would go, and it did not. It just kept getting worse;[43] she was concentrating more on her arm not shoulders.[44] – “everyone was concerned about the total bruising and everything of my arm – the lower part of my arm.”[45] She did not worry about the shoulder as much because there was more pain in the lower part of my arm.”[46]
[43]T7
[44]T23
[45]T6
[46]T6
Contemporaneous records
178It is clear from the Newington Physiotherapy records that the plaintiff had no treatment for her shoulders in her eight visits from 6 November 2017 to 13 March 2018. She was treated for her neck and right forearm pain. It was noted that there was slow but consistent improvement over that time.
179The plaintiff first had physiotherapy for her shoulders on 5 November 2020 and was last seen on 25 March 2021.
180Dr Maher, who saw the plaintiff ten days after the accident and then in the following December, then thought her prognosis was good, and there was no mention of ongoing accident-related issues in multiple consultations to October 2020.
181There are no clinical notes from treating orthopaedic surgeon, Mr Spencer. In his correspondence and report, he simply diagnosed early glenohumeral arthrosis with a supraspinatus tear, making no mention of any traumatic cause.
The histories
182The plaintiff told Mr Vo in mid 2023 that over time, she developed persistent pain in her right shoulder. On that basis, he diagnosed bilateral shoulder impingement syndrome, subacromial bursitis, as well as rotator cuff tears. The accident most likely caused the tears or at least aggravated them because she had no preceding bilateral symptoms.
183Mr Grossbard’s history was that initially the pain was noted to be in the cervical spine and right shoulder as the area of major concern. He thought the plaintiff suffered a neck injury and injury to both shoulders in the accident. He doubted, however, the accident has been responsible for the bilateral tears, but it may have been sufficient to bring on the development of capsulitis, particularly on the right.
184The plaintiff told Mr Doig she believed she injured her shoulders by leaning forward. His history seems to place shoulder investigations some time after the hospital admission. He diagnosed bilateral soft tissue injuries to the shoulder and rotator cuff tears on ultrasound.
185While the plaintiff told Mr Speck she had ongoing shoulder symptoms since the time of the accident, he noted there was no record contemporaneously to support any ongoing shoulder injury from that time.
Credit
186As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[47]
“… 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.”
[47](2010) 31 VR 1 at paragraph [12]
187This was not a case where there was any attack on the plaintiff’s credit. Counsel for the defendant described the plaintiff as “unreliable”. She had “effectively reconstructed in her mind when the shoulder became symptomatic”.[48]
[48]T33
188Counsel for the plaintiff submitted that every aspect of the plaintiff’s presentation was wholly credible. “… of course she says ‘six or seven years ago I don’t have a perfect recollection’. To say to the contrary would be suspicious.”[49]
[49]T38
189In my view, the plaintiff was an honest, but unreliable witness. She initially maintained that she told Dr Maher about a shoulder problem but then conceded the first time she mentioned her shoulder to her GP was in late 2020 – three years after the accident. It is likely that her shoulder symptoms commenced at that time. It was not until she was told by Mr Spencer that she had a shoulder issue did she attribute it to the accident. She seems to have made this connection without any particular advice from him in these terms – his records not mentioning any link between the investigation findings and the accident.
Findings
190Taking into account all the evidence, I am not satisfied the plaintiff injured her right shoulder in the accident.
191In my view, she did not complain of right shoulder pain in the first three years after the accident because her shoulder was not giving her any particular concern during that time.
192Initially, her focus was on her right lower arm – her forearm. It was treated with eight physiotherapy visits, during which her neck issues were also addressed. She made slow but consistent progress, with this treatment ceasing in March 2018.
193There was only limited treatment of those injuries at that time – they were not major and not mentioned by the plaintiff to her GP after the first visit on 24 October 2017. They were not of the magnitude to overshadow any shoulder issues..
194In any event, once these other issues no longer concerned the plaintiff, there was no reason why she could not have complained to her GP if she was experiencing shoulder pain of any significance and be treated in relation thereto.
195The plaintiff is a person who goes to the doctor whenever she has a medical issue or needs a script.[50] It was not until October 2020 when she made a complaint of bilateral upper arm – not shoulder pain – that she was sent to Mr Spencer by Dr Hartnell to try to work out the source of her pain and was then told the results of the shoulder investigations.
[50]T10
196As the Court of Appeal said in Philippiadis v Transport Accident Commission:[51]
“Ordinarily, a patient who visits his or her longstanding general practitioner is likely to inform the general practitioner of the health issues that are then of concern to the patient … Where an injury is having serious adverse health consequences, for a patient and that patient visits his or her general practitioner on a regular basis, it would be very unusual for the patient not to mention those consequences and for the practitioners clinical notes not to refer to them over a lengthy continuous period of time.”
[51][2016] VSCA 1 at paragraph [106]
197Further, there was no reason why the plaintiff cold not have mentioned any issues with her left shoulder at any time since the accident even if she had concerns with her right upper limb.
198In this case, the plaintiff accepts that she made no complaint of shoulder pain until about three years after the accident, having attended the GP on twenty-two occasions for other matters, only mentioning the accident once on 24 October 2017.
Medical evidence
199Medical opinion linking any shoulder condition to the accident is based on an acceptance of the plaintiff’s history of ongoing shoulder pain since that time – evidence I do not accept.
200As Chernov JA said in Dordev v Cowan & Ors,[52] in this type of case, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted, but it is also relevant to the reliability of the medical evidence, because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
[52][2006] VSCA 254 at paragraph [14]
201Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff’s application must be looked at in the light of my views as to her reliability.
202In her 2023 report, Dr Hartnell simply accepted the plaintiff injured her shoulder in the accident without giving any explanation or any path of reasoning, in the face of her predecessor, Dr Maher, making no reference to shoulder pain and concluding the plaintiff’s accident-related condition had resolved at the end of 2017.
203While Charles Flynn, physiotherapist, does link the plaintiff’s shoulder issues to the accident, he ignored the earlier period of treatment at his practice where there was no shoulder complaint. He also noted the spine and shoulder girdle are intimately related, which is not the view of any other doctor and is expressly disavowed by Mr Vo.[53]
[53]T29
204Mr Vo made the causal connection because he accepted the plaintiff’s shoulder symptoms commenced immediately after the accident. He did not have the GP’s clinical notes, and therefore did not grapple with the complete lack of reported complaints in the three years following the accident.[54]
[54]T30
205Mr Grossbard’s finding of accident-related aggravation was based on an acceptance of pain initially in the right shoulder of major concern that was not borne out by the evidence.[55]
[55]T31
206Dr Doig’s opinion also seems to be based on a history of ongoing shoulder pain from the time of accident, which I do not accept.
207Mr Speck is the only examiner who has based his opinion on a thorough review of all the records, concluding any shoulder condition was not related to the accident. Any soft tissue injury that was related to the accident would have become symptomatic in three months. However, the first complaint of shoulder pain was not until 9 October 2020.
208Further, he really doubted that the accident was responsible for the bilateral rotator cuff tear – a view shared by Mr Grossbard.[56]
[56]T33
209While Mr Speck did not make any comment about the plaintiff’s credibility, honesty, reliability, or any inconsistency on examination, he rejected her history of ongoing shoulder symptoms since the accident having reviewed all the relevant contemporaneous documents.
210Taking into account all the evidence, if the plaintiff had suffered injury to her right shoulder in the accident, shoulder symptoms would have been noted by her much earlier. I am not satisfied that her bilateral upper arm pain, which seems to have come on three years after the accident, is a result of that accident.
211While the onus is on the plaintiff to establish her shoulder injury is accident related, the findings on imaging can be explained as age related and constitutional in nature. This is the view held by Mr Speck.
212Significantly, the plaintiff’s treating orthopaedic surgeon does not make any connection between his diagnosis of early glenohumeral arthrosis with a supraspinatus tear and any accident-related trauma.
Consequences
213However, if it is accepted the plaintiff injured her right shoulder (her more significant complaint) in the accident, are the consequences of any right shoulder impairment serious and long term?
214In general terms, counsel for the plaintiff adopted Dr Hartnell’s summary of the effect of the shoulder injury on the plaintiff’s recreational and social activities – her dependence on her son for household tasks, avoidance of bus travel and consequent limitation on recreational outings, and inability to carry four bowls.
215Further, the plaintiff deposed that she continues to experience pain in both shoulders, but the right is worse. The pain is not constant but seems to increase with any activity using her arms, particularly raising them. She has difficulties with lifting or repetitive activities, with her arms causing pain in the evening. She has occasional flare-ups. It is difficult to get comfortable in bed and go to sleep. She avoids medication but has to use it. She has difficulty with dressing and housework.[57]
[57]T43
216Counsel for the plaintiff submitted that “suite of consequences” for someone who is trying to enjoy her retirement, plus the injections “and those other items” satisfies the statutory test.[58]
[58]T44
Seriousness?
217The evidentiary basis of the pain assessment would ordinarily comprise, inter alia, what the plaintiff says about the pain both in court and to doctors.[59]
[59]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [11]
218The plaintiff agreed some days her pain is mild as she told Dr Vo in June 2023. There were good and bad days. Generally, the plaintiff has complained of shoulder pain of an aching and intermittent nature.
219While the plaintiff continues to suffer shoulder pain and will continue to do so, she does not suffer a continuous level of shoulder pain, confirmatory of this is that her pain appears to be controlled by Nurofen on an infrequent basis.[60]
[60] Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [48]
220The plaintiff continues to have reasonable function in both shoulders with some restriction on overhead activities.
221The plaintiff has undergone conservative treatment in recent years for both shoulders. She last had physiotherapy in March 2021 and continues or do home exercises.
222Treating surgeon, Mr Spencer noted the plaintiff had a good response to the steroid injection and significant improvement in September 2020, leaving her with some bilateral shoulder ache. Dr Harris confirmed the good response to this injection lasting twelve months and repeated the injection in each shoulder in September 2021
223No shoulder surgery is planned.
224The plaintiff takes Nurofen infrequently, limiting her intake because of stomach issues.
225There is some restriction in the plaintiff’s ability to do housework and gardening and she requires family assistance. Downsizing and moving closer to family was only partly due to the accident, having been contemplated since 2015 because of her husband’s health.[61]
[61]T42
226The plaintiff is still able to participate in her major leisure activity of bowls, albeit less frequently, her only apparent restriction being able to carry only two, not four bowls from the car as she was able to do pre accident.
227The plaintiff is still able to drive and do her shopping, albeit with assistance with heavy lifting. She can do odd jobs around the house like a small painting job in mid-2020 which she described.
228When all these consequences are considered collectively, in my view, they are significant but do not meet the higher threshold of “serious”.
229Accordingly, the application is dismissed.
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