Agitu Tola Kufi v Transport Accident Commission

[2022] VCC 1369

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Serious Injury List

Case No. CI-21-04206

AGITU TOLA KUFI	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE TRAN
WHERE HELD:	Melbourne
DATE OF HEARING:	14 and 15 June 2022
DATE OF JUDGMENT:	2 September 2022
CASE MAY BE CITED AS:	Agitu Tola Kufi v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2022] VCC 1369

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:              Serious injury

Legislation Cited:      Transport Accident Act 1986

Cases Cited:Transport Accident Commission v Katanas [2017] HCA 32; Humphries and Anor v Poljak [1992] 2 VR 129; Transport Accident Commission v Kamel [2011] VSCA 110

Judgment:                  Application granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A MacNab SC with Mr B Johnson	Zaparas Lawyers Pty Ltd
For the Defendant	Mr W Middleton QC with Ms A Bannon	Wisewould Mahony

HER HONOUR:

1Five years ago, on 14 June 2017, Agita Kufi, was struck by a reversing car as she walked across Thomas Street, in Dandenong.  Ms Kufi says that, as a result of injuries she sustained in this accident, she suffers constant pain in her right shoulder, neck and back.  She says that this pain worsens with lifting, reaching and pushing.  She says she has frequent flare-ups of severe pain and is significantly restricted in her day-to-day activities, including dressing, cooking and cleaning, and in her capacity to socialise and engage in team activities such as football and volleyball.  She says she tried to return to work as a patient services assistant but found that the pain she experienced, particularly in her right shoulder, affected her ability to push patients, clean, mop, lift and perform food service.  Ms Kufi, who is only thirty-three years old, says that she fears she will be unable to work in the future.

2This is a serious injury application. Ms Kufi seeks leave to bring proceedings for damages for injuries suffered arising out of a transport accident. She claims to have suffered a serious long-term impairment of her right shoulder and a serious long-term impairment of her spine (particularly her neck and lower back) within the meaning of paragraph (a) of the definition of serious injury in s93(17) of the Transport Accident Act 1986 (“the Act”).

The parties’ submissions

3Ms Kufi submitted that the consequences she suffers as a result of the accident amount to:

(a)   a serious long-term impairment of her right shoulder; and

(b)   a serious long-term impairment of her spine (particularly her neck and lower back).

4The defendant submitted that the Court ought not accept Ms Kufi’s testimony as reliable or even credible.  It pointed to four principal matters in support of its submission that Ms Kufi was not a witness of truth:

(a)   Ms Kufi’s failure to disclose the pre-existing pain, particularly in her back and neck, which is recorded in Ms Kufi’s clinical records;

(b)   the lack of any record of right shoulder or back pain in Ms Kufi’s clinical records immediately after the accident;

(c)   the stark contrast between video surveillance of Ms Kufi, on the one hand, and Ms Kufi’s description of her pain and its consequences; and her range of motion when assessed by medico-legal practitioners, on the other; and

(d)   the lack of support for Ms Kufi’s case in the opinions of the medical experts, particularly once they had viewed the surveillance.

5The defendant submitted that, when all these matters were taken together, the combined effect is to render Ms Kufi’s evidence so unreliable that she could not be accepted as a witness of credit by the Court.

6The defendant submitted that, given this, the Court should prefer the opinions of the medico-legal practitioners called by the defendant, as they did not rely upon an acceptance of Ms Kufi’s reported symptoms.  In any event, the defendant submitted that the medico-legal practitioners called by Ms Kufi were not especially supportive of her case, particularly the reports of Associate Professor Bruce Love, Dr Joe Slesenger and Professor Peter Teddy.  The defendant also pointed to the existence of a lipoma on Ms Kufi’s back as an alternative source for any right shoulder and back pain which was experienced by Ms Kufi.

Ms Kufi’s personal background

7Ms Kufi is thirty-three years old.  She was born in Ethiopia.  When she was a child, her family faced ongoing harassment by police.  She was brutally physically assaulted on at least one occasion.  She still bears physical injuries from this assault.  She witnessed her father being killed at the age of twelve.

8Ms Kufi left Ethiopia in 2013, travelling via Kenya and Thailand to Indonesia.  She arrived in Australia by boat in May 2013.  She spent time in immigration detention, before being released into the community on a visa.

9In around 2016, she worked in a chicken factory for about a year.

10At the time of the accident, Ms Kufi had just completed her training as a patient services assistant and had received an offer of a full-time casual position at Monash Health. Her evidence was that she was looking forward to commencing in this new role.

The credibility and reliability of Ms Kufi’s oral evidence

General observations

11Ms Kufi was softly spoken and careful in her answers.  She answered questions frankly and made appropriate concessions.  Her delivery was flat and largely lacking in emotion.  There was no obvious over-playing of her symptoms.  At times, she appeared very sad ꟷ for example, when she explained that she struggled to pay the rent, or that her symptoms were worse now, despite all the treatment she had undergone.  I detected no melodrama or performative element in this.

12Ms Kufi’s account of her experience of pain was supported by affidavit evidence from a housemate and a friend who each observed her being restricted in activities as a result of pain.

13In the witness box, Ms Kufi held herself quite stiffly and clearly favoured her left hand and arm.  At times, she appeared uncomfortable but, again, there was no melodrama or performative element in this.  When asked to demonstrate the range of motion of her right arm, she was able to lift it up above her head without obvious difficulty.  She reported minor pain when doing so.

14Ms Kufi’s answers were, at times, not responsive to the question asked.  This appeared to me to result from a genuine lack of understanding of the questions as they were posed and interpreted, rather than resulting from obfuscation or avoidance.

Failure to disclose pre-existing pain

15The defendant submitted that Ms Kufi’s credibility was undermined by her failure to disclose pre-existing history of relevant pain to the medico-legal practitioners and in her affidavit.  I do not accept this submission.  Clinical records dating back to 2013 were tendered, which demonstrated that Ms Kufi had a complex medical history, which included occasional reports of back pain and neck pain, including right-sided back pain[1].  For example, in November 2013, she complained of pain running along her left arm from her neck, which was viewed as serious enough for her to be referred for a CT scan of her cervical spine.[2]  In February 2014, she complained of left-sided arm pain, back pain and head tightness for many months, which was viewed as serious enough for her to be referred for an x-ray of her hip and lumbosacral spine, and to be prescribed Tramadol.[3]  However, the clinical records do not demonstrate a history of chronic right shoulder, lower back and neck pain of the nature now complained of by Ms Kufi.  The records also demonstrate that she attended her general practitioner (“GP”) for many other unrelated reasons in the period from 2013 to 2017.  

[1]        Plaintiff’s Supplementary Court Book (“PSCB”) 6

[2]        PSCB 7-8

[3]        PSCB 11-12

16In oral evidence, Ms Kufi had difficulty remembering the particular occasions on which she had reported symptoms of pain to her GP in the years prior to the accident.  This is unsurprising, particularly given she was questioned about events going back nearly ten years, and in the context of her history of trauma, varied symptoms and English-language difficulties.  I accept that Ms Kufi demonstrated a poor recall of events from the years prior to the accident, and that this impacts upon the reliability of her evidence as to her past history.  However, I am satisfied that any failure to describe previous symptoms of back, neck, right-side or right arm pain, can be explained from poor recall and the challenges of communicating in a language not her own, rather than deliberate mistruths. Further, Ms Kufi’s present experience of pain is not congruent with her complaints of pain documented in clinical records. It is reasonable to assume that Ms Kufi would struggle to recall pain of a lesser – and somewhat unrelated – nature to the pain she complains of now, 10 years later.  I do not accept that her non-disclosure of these matters impacts upon the credibility of her evidence about other matters, such as her current experience of pain.

Delay in reporting right shoulder pain

17The defendant also submitted that the credibility and reliability of Ms Kufi’s evidence was undermined by the delay in reporting right shoulder pain to her doctor after the accident.  The defendant relied particularly on the clinical notes of the GP she saw on 14 June 2017 (the day of the accident); which record Ms Kufi as suffering pain in the left intrascapular region, rather than the right.  Again, I do not accept this submission.  First, it is a matter of ordinary experience that mistakes are made from time to time in the clinical notes of a busy GP and that, in particular, right can be inadvertently recorded as left.  Second, the likelihood of error in the clinical records on the day of the accident is increased by Ms Kufi’s English-language difficulties, the fact that she was seeing someone other than her regular GP, and her own evidence that she had been knocked unconscious in the accident.  Third, her regular GP, Dr Harini Weerasooriya, confirms, in a report dated 5 December 2017, that Ms Kufi had had ongoing right shoulder pain since her accident[4]. Finally, Ms Kufi was complaining of “still having right side pain” as early as 4 July 2022, only three weeks after the accident,[5] and has consistently complained of right scapular pain since then.

[4]         PCB 30

[5]         Exhibit P3, Clinical records of Dandenong Locum Service

The video surveillance

18Video surveillance from 3 February 2020, 4 February 2020, 31 October 2020, 12 November 2020, 13 November 2020, 25 February 2022, 5 March 2022 and 15 March 2022, was played during Ms Kufi’s cross-examination and tendered in evidence.

19Of these, Ms Kufi demonstrated the greatest range of motion and capacity in the surveillance taken on 12 November 2020.  That video shows Ms Kufi in the front yard of her house with her car parked under a tree.  Over the course of more than fifteen minutes, Ms Kufi vigorously washes her car.  She uses what looks like a long-handled duster to wipe the car with soapy water, holding the duster interchangeably in her left and right hands.  On multiples occasions, she reaches up to clean the roof of her car with her right hand and bends down at the waist past 90 degrees to clean the lower parts of the car.  She then bends down to pick up a hose, and washes the car, predominately holding the hose in her right hand.  She reaches up to spray the roof of the car and bends down to spray each of the tyres.  She then waters the garden, holding the hose in her right hand before moving to wash down the front porch.  She holds the hose in her right hand and reaches up high to wash the walls and ceiling of the porch and down low, at times, as well.  Finally, she untangles and coils the hose into large loops, predominately using her right hand, then carries her bucket and the doormat back to the porch and enters the house.  Throughout, she shows no sign of favouring her left hand or any sign of pain or restriction in her right hand, with neck movements or with bending at the waist.

20Ms Kufi’s presentation in this video was very different to her presentation at the various medico-legal practitioners who assessed her, who each recorded restricted (although differing) ranges of motion.  

21Her presentation in this video is also, at first glance, not consistent with her sworn affidavit evidence that:

(a)   “The worst pain is in my right shoulder and neck.  It is a constant and sharp pain”;[6]

(b)   “My back pain is also a constant”;[7]

(c)   “I have continued to experience constant pain in my right shoulder and in my neck, and the level and intensity of pain remains the same [since my last affidavit].  I also continue to experience pain in my back”;[8]

(d)   “I have difficulty turning my head to the right without experiencing pain”;[9]

(e)   “The pain in my right shoulder is always there, and it worsens with activity involving lifting, reaching and pushing, particularly movements away from my body … I continue to have restrictions in performing activities requiring above shoulder height movement of my arm.”[10]

[6]        First affidavit, paragraph [38]

[7]        First affidavit, paragraph [38]

[8]        Second affidavit, paragraph [9]

[9]        Second affidavit, paragraph [11]

[10]        Second affidavit, paragraph [13]

22On the other hand, Ms Kufi also states in her second affidavit that:

“… At times the pain in my right shoulder is not as bad as at other times, but the pain increases if I use my right arm for lifting or forceful activity. The pain is also worse in colder weather.

I try and do what I can but if I do to (sic) much with my right shoulder/arm, I get flare ups and need to rest”.[11]

[11]        Second affidavit, paragraphs [13]-[14]

23This paragraph, in particular, suggests that Ms Kufi has “good days” and “bad days”.  That a person suffering genuine chronic pain may nevertheless have good days and bad days accords with common experience.

24In relation to the surveillance of 12 November 2020, Ms Kufi said:

“I think that time was summertime and sometimes in summer, when I take the painkiller and also I do the massaging with the Voltaren, I feel much better and then – at the time wherever I felt like I fully recovered, and then the pain comes back again in a day or maybe after a few hours.” [12]

[12]        Transcript (“T”) 36, Lines (“L”) 24-29

25In other words, Ms Kufi’s evidence is that 12 November 2020 was a particularly good day.

26Ms Kufi’s evidence needs to be understood in the context of her English-language difficulties and the imperfect science of interpretation.  In the applicant’s case, the difficulties of communicating accurately through interpretation across both language and cultural barriers were apparent in the course of her oral evidence.  As I have already noted, there were many times where Ms Kufi seemed simply not to understand the question as interpreted to her.  On occasions, she nevertheless obligingly provided an answer even though she did not properly comprehend the question.  She gave an example of this arising out of a medico-legal examination:

Q:“You tell doctors that it’s regularly on average something like seven out of ten, and sometimes it’s ten out of ten.  Is that correct?---

A:Yeah, when they asked me a number I always tell them I don’t know how to explain the number, but they insist me to answer in number.” [13]

[13]        T26, L 19-23

27There also seemed to be something “lost in translation” with Ms Kufi’s use of the word “constant” in her affidavit and oral evidence.  When cross-examined about her use of the word “constant”, she said (or was interpreted to have said):

“Not 24 hours, but – the pain is always there, but when I do this medication or Voltaren things it gets better for some times.”[14]

[14]        T26, L16-18

28And again:

“Constant pain doesn’t mean 24 hours.”[15]

[15]        T36, L30-31

29Literally, constant pain does mean twenty-four hours a day, however this seemed to be something Ms Kufi genuinely did not understand.

30I also note that there is a distinct contrast between Ms Kufi’s appearance in the surveillance on 12 November 2020 and her appearance in the surveillance taken on other days.  I have carefully watched that surveillance multiple times.  There are occasions on which she carries items in her right hand, however I observed her to distinctly favour her left hand, despite being right-handed.  For example, she consistently carries what appear to be heavy grocery bags in her left hand, with her handbag over her left shoulder and nothing other than keys, or a phone, or wallet, in her right.  When shopping in the market, she can be observed to reach with her right hand for fruit and vegetables and occasionally carry items, but I did not observe her carry anything of significant weight in her right hand for any substantial period.  From time to time, she turned her head at the neck (for example when filling her car with petrol), however, at other times, I observed her to carry herself quite stiffly and move slowly and carefully, perhaps even limping at times.  On one occasion, I observed her to pull a wheelie bin into her front yard with her right hand from the street.  Presumably, this bin had recently been emptied and so was not heavy.  She does also reach up with her right hand on a number of occasions to open and close the boot of her car.  However, it appears to be a power-assisted tailgate, so this would not have required the application of significant force.  

31Overall, I formed the view that the surveillance videos taken on days other than 12 November 2020 were consistent with Ms Kufi’s affidavit and oral evidence.  The surveillance showed a right-handed person who occasionally used her right arm (whether through necessity or inadvertence), but largely favoured her left, particularly for any activities involving carrying heavier items.

32A number of the medico-legal experts were provided with the surveillance videos.  Dr Nicholas Ingram, a medico-legal psychiatrist retained by the plaintiff, stated that “[o]f course, if the surgical opinion is that the videos demonstrate that Ms Kufi is consciously lying, this would raise the possibility that she lied to me”.[16]  The defendant submitted that this supported a finding that I should doubt the accuracy of Ms Kufi’s history.  In my view, Dr Ingram’s evidence is best viewed as supportive of Ms Kufi.  In his report he states “[i]t seems very clear that there is a completely different level of functioning before the motorcar accident and after the motorcar accident”[17] and that the “surveillance video is not inconsistent with the history provided to me by Ms Kufi”.  His further speculation that, it may be possible she lied to him if the videos demonstrate she was “consciously lying”, is not directly probative evidence on the question of whether Ms Kufi was lying. It merely explained his views of the consequences of a finding that Ms Kufi was lying on the validity of his observations. 

[16]Plaintiff’s Court Book (“PCB”) 97

[17]PCB 97

33Associate Professor Love, an orthopaedic surgeon retained by Ms Kufi, notes in relation to the surveillance taken in 2020:

“… The clinical examination is at extreme variance with the surveillance where there appears to be active use of the right upper limb at the extremes of motion. One example is the ability to lower a fully elevated rear flap of the motor vehicle using the right arm without apparent concern. I further noted active car cleaning tasks and shopping tasks providing similar motion of the right upper limb and neck.”[18]

and that:

“You have asked me to give consideration to the surveillance and I have explained in the body of the report my concern about the major variance between the functional capacity during surveillance and the stated diminished functional capacity.” [19]

[18]PCB 77

[19]        PCB 79

34Nevertheless, Associate Professor Love concludes, on the basis of his clinical examination of Ms Kufi, that she has a right shoulder injury with an organic component, which renders her incapable of employment, and is permanent.  However, he also expresses the view that “there is a significant non-organic contribution”[20] to her injury.  

[20]PCB 77

35Overall, I interpret Associate Professor Love’s report as raising significant concerns with the variance between Ms Kufi’s presentation during his assessment and in the surveillance, but not expressing a concluded view on whether this variance compromises his diagnosis.

36Mr Mohammed Awad, a neurosurgeon retained by Ms Kufi, considered three video surveillance files, one of which appears to be the footage containing the 12 November 2020 surveillance.

“I have considered the surveillance materials. This surveillance material does not take into account pain thresholds for that particular day and what medications she may have had before she ventured out. This material, therefore, does not cause me to change my answers with regard to pain and function as well as suffering and enjoyment of life.” [21]

[21]PCB 110, item 11.  The length of the third video mentioned in his report precisely coincides with the length of the surveillance video of 12 November 2020 tendered in evidence.

37Mr Awad’s evidence is thus supportive of Ms Kufi.

38Dr Richard Sullivan, a medico-legal pain specialist called by the plaintiff, considered four video-surveillance files.[22]  In his first report of 11 March 2022, he confirmed that he had reviewed the surveillance (which appeared to include the 12 November 2020 surveillance) and had taken it into account in answering the questions asked of him.[23]  In his second report, he specifically considers surveillance from early 2022 and states:

“…The video footage demonstrates your client surpassing some of these noted restrictions.

Reasonable explanations for this would include variable pain presentation pertaining to the right shoulder leading to changeable functional restriction depending on her pain severity at that time.

Further factors that may influence such presentation include utilisation of analgesic medication, a history of prior rest (increased range) or aggravating activity (reduced range).

It is quite plausible that your client had considerable pain affecting her right shoulder on the date that she attended my original medicolegal assessments and as such pain was less severe at the times where she is observed to move her right upper limb more freely in the video surveillance footage.

Irrespective the only reasonable adjustment that I would make to my original report would be pertaining to her movement restrictions whereby she has demonstrated a broader range of movement (sic) of her right shoulder than previously recorded and that she presumably has intermittent capacity to perform limited overhead activities (such as closing a car boot).” [24]

[22]        PCB 124, item 14 and PCB 129, item 5.

[23]        PCB 123, item 11; PCB 124, item 14

[24]        PCB 127

39Dr Sullivan’s evidence is also supportive of Ms Kufi.

40Dr Slesenger is a medico-legal occupational physician called by the plaintiff.  In his first report, regarding surveillance footage from 2020, which includes footage from 12 November 2020, he states, “[t]he surveillance footage is … inconsistent with the examination”[25] and expresses the view that “there is at least in part, a functional element in her presentation”.[26]  However, he nevertheless concludes that Ms Kufi is “unlikely to be able to return to work performing suitable or alternative duties on a consistent and reliable basis”.[27]  In his second report, he reviews further surveillance from early 2022.  He notes that this footage is contemporaneous with his evaluation and inconsistent with it.  He concludes that Ms Kufi is not suffering any residual cervical spinal or lumbar spinal impairment related to the accident.  However, he accepts that she has a residual right shoulder impairment related to the accident, although says that “this impairment appears to be a minor contributing factor to her overall disability”.[28]  He recommends a limit of “[n]o push, pull, carry or lift over 15 kg on occasional basis and 5 kg on a repetitive basis”.[29]  Dr Slesenger’s evidence, thus, does not support Ms Kufi’s evidence of ongoing restrictions in her lower back and neck.  However, it does support the view that Ms Kufi continues to suffer right shoulder pain, albeit the footage causes him to reduce the limitations he imposes upon her.  

[25]        PCB 141

[26]        PCB 142

[27]        PCB 143 (with respect to the spine alone) and PCB 144 (with respect to the right shoulder alone)

[28]PCB 158

[29]        PCB 158

41Mr Gary Speck is a medico-legal orthopaedic surgeon called by the defendant.  In his first report, he expresses the view that her presentation is consistent with a diagnosis of a somatic symptom disorder and speculates as to the possible presence of other mental health conditions stating that “[h]er current presentation is not consistent with resolved soft tissue injury nor is it indicative of any underlying discoligamentous, vertebral structural or soft tissue shoulder pathology”.[30] Mr Speck stops short of making a mental health diagnosis but theorises that such a diagnosis may have explanatory power.

[30]        PCB 51

42Mr Speck reviews the surveillance videos in his second report.  He says that the surveillance videos demonstrate a greater level of activity and movement than demonstrated in his previous examination and were “[i]n general … consistent with my conclusions drawn in my previous report”.[31]  Mr Speck’s view is, therefore, not altered by the surveillance footage – it remains that there is not an organic basis to Ms Kufi’s symptoms.  

[31]        PCB 60

Findings on the credibility and reliability of Ms Kufi’s evidence

43Having considered all of the above matters, I have concluded that Ms Kufi is an honest (albeit symptom focussed) witness who does her best to tell the truth, but is not always entirely reliable in her description of her symptoms.

44In making this finding, I have taken into account the concerns of Associate Professor Love, Dr Slesenger and Mr Speck, that the range of motion and capacity that Ms Kufi demonstrated in the surveillance videos was significantly greater than that demonstrated on examination.  I accept that this is the case and, indeed, that Ms Kufi has consistently demonstrated a much more restricted range of motion in medico-legal examinations than she does in the surveillance videos.  It is not beyond the bounds of credibility that a person who suffers from chronic pain would be much less conscious of that pain on a “good day”, when medication is effective and she is engaged and distracted by a purposive activity conducted at a time of her choosing; than on days when she is placed in the stressful and unfamiliar surrounds of a medico-legal consultation and directed to focus specifically on the existence and extent of her pain. This does not necessarily indicate dishonesty on Ms Kufi’s part. My own assessment of Ms Kufi’s credibility is also supported by the views of Dr Sullivan and Mr Awad, to the effect that the surveillance videos are not inconsistent with Ms Kufi suffering ongoing and restrictive pain in her lower back and neck and (with respect to Dr Sullivan only) right shoulder.

45In view of the contrast between the surveillance on 12 November 2020 and the other surveillance, I specifically find that 12 November 2020 was a particularly “good day” and is not representative of Ms Kufi’s usual level of capacity and range of motion. 

46However, in light of the surveillance, care must be taken with Ms Kufi’s description of her symptoms and her presentation at medico-legal appointments.  I accept that Ms Kufi is honest, but find that her evidence as to her symptoms (as interpreted) is not always reliable.  In particular, I do not accept that Ms Kufi suffers “constant” pain, if, by that, it is meant pain that is always present, even with medication.  I also do not accept that the very restricted range of motion she demonstrated when assessed by medico-legal practitioners is indicative of her general capacities.

47Having said that, given my view that Ms Kufi is an honest witness, I am satisfied that Ms Kufi suffers ongoing (albeit variable) lower back, neck and shoulder pain, which worsens with lifting of heavy weights and repetitive lifting, reaching and pushing movements of her right arm.  I am satisfied that Ms Kufi lives with the threat that she will have a severe flare-up of her pain, particularly if she engages in heavy or repetitive tasks.  

48I am satisfied that this pain, at times, causes Ms Kufi difficulty with some aspects of personal care (such as washing her hair or getting dressed); although I do not accept that it prevents her from independently caring for herself.  I am also satisfied that it makes it more difficult for Ms Kufi to perform some household tasks, such as cooking and hanging washing.  However, I find that she is able to perform most household tasks if she can pace herself, rest appropriately, and elect to undertake these tasks on occasions when her pain is not severe.  I am satisfied that, at times, her pain wakes Ms Kufi from her sleep, but also note that she has had difficulty sleeping for other reasons in the past.  I am satisfied that her pain causes Ms Kufi difficulties driving, particularly for long distances, but she is generally still able to drive.

49I am satisfied that, as a result of her ongoing pain and the threat of flare-ups, Ms Kufi does not volunteer to assist with cooking and cleaning at her church; and no longer participates in social activities through her church, such as social football and volleyball.

50I am also satisfied that Ms Kufi attempted to return to work as a personal care attendant between September 2017 and December 2017, but found herself unable to do so, because her pain impeded her capacity to perform the heavy duties of that role, which included pushing patients, cleaning, mopping, lifting and performing food services.[32]  I accept that Ms Kufi very much wanted to be able to work as a personal care attendant and if she had been able to she would have done so. Although, as I have found, Ms Kufi’s pain is variable, I am satisfied that the nature of her pain is such that performing a role which involves such regular heavy physical tasks on a consistent and reliable basis is beyond her. I do not consider it reasonable to expect her to push through this pain.

[32]        Second affidavit, paragraph [25]

51I accept that Ms Kufi takes prescription Prodeine Caplets (paracetamol and codeine) for this pain on a daily basis. She also takes Pregabalin and uses Voltaren Gel and Deep Heat.

52Ms Kufi has consistently said that the pain in her right shoulder is worse than in her neck; and that the pain in her right shoulder is the predominant pain, both in evidence and when describing her symptoms to medical practitioners.  I am satisfied that the pain in her right shoulder alone is sufficient to restrict Ms Kufi’s activities in the manner described above.  I am not so satisfied with respect to her lower back and neck pain.

Was the right shoulder pain caused by the accident?

53I have accepted that Ms Kufi has suffered ongoing right shoulder pain since the accident. Although there is some reference in the clinical notes to right-sided pain, there is no evidence that Ms Kufi experienced chronic right shoulder pain of the nature she now experiences, prior to the accident.  There is also no evidence (aside from some speculation by her GP) that the right shoulder pain experienced by Ms Kufi was caused by the lipoma on her back.  Professor Teddy expresses the opinion that the lipoma is “likely to have been an incidental finding”.[33] I accept this opinion. In any event, the pain which Ms Kufi experiences has persisted after its removal. I am satisfied that Ms Kufi’s right shoulder pain was caused by the accident.

[33]        PCB 103

Is the right shoulder pain predominately the product of an organic condition?

54Ms Kufi’s right shoulder symptoms and restrictions may be taken into account in a “paragraph (a)” case[34] if I am satisfied that they are predominantly the product of an organic condition.[35]

[34] Paragraph (a) of the definition of serious injury in s93(17) of the Act

[35]        TAC v Kamel [2011] VSCA 110 at [65]

55Each of the medico-legal practitioners who considered Ms Kufi’s right shoulder symptoms accepted that Ms Kufi had suffered an initial soft-tissue injury to her right shoulder.  However, they differed as to whether Ms Kufi had recovered, or could be expected to recover, from that injury, and whether any remaining dysfunction in her right shoulder had an organic basis, or was functional or somatic in nature.

56No evidence was tendered at trial from a psychiatrist or other mental health expert that Ms Kufi suffered from a somatic symptom disorder of non-organic basis.[36]

[36]The report of Dr Ingram dated 31 May 2022, which was tendered in evidence, did not address this issue and was tendered for the purpose of the attack made on Ms Kufi’s credibility.

57Associate Professor Love concludes that Ms Kufi has a right shoulder injury with an organic component, which renders her incapable of employment, and is permanent, although he is of the view that there is a significant non-organic component to her symptoms. 

58Dr Sullivan provides a further organic explanation for Ms Kufi’s ongoing right shoulder pain.  His evidence is that the accident was responsible for an aggravation of soft-tissue changes and injury to the right shoulder, and development of a post-traumatic chronic pain condition.[37]  He expresses the view that this condition has an organic basis.[38]  Dr Sullivan was the only pain specialist to give evidence in this proceeding – his view that Ms Kufi suffers from a chronic pain condition with an organic basis therefore stands essentially uncontradicted.

[37]        PCB 119

[38]        PCB 120

59Mr Speck, the medico-legal orthopaedic surgeon retained by the defendant, raises a “likely diagnosis”[39] of a somatic symptom disorder.  This is effectively a diagnosis of exclusion – that is, because he considers any soft-tissue injury would have resolved after six to twelve weeks, he suggests that any ongoing pain may be due to a somatic symptom disorder.  He acknowledges that:

“The possibility of diagnosis of somatic symptom disorder should be assessed by an appropriate mental health expert, and relationship of that to the transport accident assessed by the expert as well.”[40]

[39]        DCB 51

[40]        DCB 52

60The logical basis for a diagnosis of a somatic symptom disorder by exclusion fails if Ms Kufi in fact has a condition with an organic basis.

61Dr Slesenger expresses the view that there is a significant “functional” component to Ms Kufi’s presentation.  This opinion may be interpreted consistently with my factual findings above, ie: that Ms Kufi’s presentation in medical assessments is not representative of her general capacities. To the extent that he means by this Ms Kufi is lying about the extent of her disability, I have rejected this view in my findings of fact.  To the extent that he means by this Ms Kufi is suffering from a pain syndrome of non-organic origin, my comments above in relation to the diagnosis of exclusion made by Dr Speck, apply equally to Dr Slesenger’s opinion.

62Dr Sullivan, as a pain specialist, is uniquely qualified among the medical experts whose reports were tendered in evidence, to diagnose a chronic pain condition of organic origin.  In my view, his reports provide the best explanation for the facts as I have found them, namely that Ms Kufi has suffered ongoing (albeit variable) right shoulder pain since the accident. Accordingly, I accept that the accident was responsible for an aggravation of soft-tissue changes and injury to the right shoulder, and the development of a post-traumatic chronic pain condition of organic origin. It follows from this that I do not accept a diagnosis of somatic symptom disorder (to the extent that Dr Speck and Dr Slesenger make this diagnosis, by exclusion).

63I accept that Ms Kufi’s right shoulder pain was caused by the accident and is predominantly the product of an organic condition.  I also accept Dr Sullivan’s opinion that Ms Kufi’s current symptoms are likely to be permanent.

Is Ms Kufi’s right shoulder impairment serious?

64For the following reasons, I am of the view that the ongoing pain and limitations to Ms Kufi’s right shoulder meet the required threshold for a serious injury. That is, that they are “very considerable” and “certainly more than ‘significant’ or ‘marked’”.

65I have found that Ms Kufi suffers from ongoing (albeit variable) chronic pain in her right shoulder, for which she takes regular prescription painkillers.  I have found that this pain is likely to be permanent – a considerable consequence in light of Ms Kufi’s young age.  I have noted that no surgery has been recommended ꟷ this is a relevant factor, but not a requirement, for an impairment to be a serious impairment.

66I have found that the right shoulder impairment impacts on Ms Kufi’s capacity to perform some self-care and housework, but not to the extent that she is unable (with appropriate pacing) to care for herself or her house.

67I have found that, as a result of her right shoulder injury, Ms Kufi is unable to work as a patient services assistant.  I have also found that, as a result of her right shoulder injury, Ms Kufi has ceased to volunteer at church and to engage in community sport.  

68In the words of the High Court in Transport Accident Commission v Katanas,[41] the first step in the application of the narrative test of serious injury requires “an assessment of whether the nature and symptoms of the injury and the consequences of the injury are, subjectively for the applicant, “serious””.[42]  The consequences for Ms Kufi which result from her right shoulder impairment need to be considered in light of her situation as a refugee with a significant background of trauma, emerging English-language skills and limited education, who is seeking to re-establish herself in a new community.  In this context, the inability to work as a patient care attendant (or similar occupation which involves heavy and repetitive work) is “very considerable”. Ms Kufi completed training to become a patient care attendant and was excited to start this new role. Given her limited education and English language skills, it is likely to be difficult for Ms Kufi to obtain alternative employment which is as rewarding, but does not require heavy and repetitive work. The loss of connection to community and the impact on Ms Kufi’s well-being that results from being unable to volunteer at her church, or participate in sporting activities, is also “very considerable” when considered in the context of Ms Kufi’s situation.

[41][2017] HCA 32

[42](Supra) at paragraph [6], citing Humphries and Anor v Poljak [1992] 2 VR 129

69When the subjective consequences to Ms Kufi are taken as a whole and objectively compared with the range of comparable cases, I am satisfied that Ms Kufi has suffered an impairment to her right shoulder which is both permanent and serious.

Conclusion

70I have found that Ms Kufi has suffered an impairment of her right shoulder which is both permanent and serious.  Accordingly, I will grant leave to bring proceedings for damages.  Having reached this conclusion, it is not necessary for me to determine whether Ms Kufi has suffered a permanent and serious impairment of her spine.  However, for completeness, I record that, while I am satisfied that Ms Kufi has suffered an organic impairment of her spine as a result of the accident, I am not satisfied that that impairment is within the range for a serious injury.

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