Allwood v TAC

[2022] VCC 1713

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Serious Injury List

Case No. CI-21-04375

Daniel Allwood	Plaintiff
v
Transport Accident Commission	Defendant

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	4 October 2022
DATE OF JUDGMENT:	14 October 2022
CASE MAY BE CITED AS:	Allwood v TAC
MEDIUM NEUTRAL CITATION:	[2022] VCC 1713

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT COMPENSATION

Catchwords:              Serious injury – pain and suffering – injury to right shoulder – whether the injury meets the narrative test

Legislation Cited:      Transport Accident Act 1986 (Vic)

Judgment:                  Leave granted to the plaintiff

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Valiotis	Slater & Gordon
Mr P Haddad
For the Defendant	Mr P Elliott KC Ms J Ryan	HWL Ebsworth

HER HONOUR:

1Daniel Allwood is 58 years old and right-handed. He says that, in terms of pain and suffering, he has suffered a serious injury to his right shoulder within the definition of s 93(17) of the Transport Accident Act1986 (Vic) following a transport accident on 6 June 2017 at a roundabout in North Melbourne in which a bus cut in front of him, forcing him to brake on his motorcycle and resulting in his falling on his right side and skidding.

2He suffered ongoing pain in his right shoulder and radiological investigations showed in June 2017 that he had sustained a tear in the right shoulder. An orthopaedic surgeon, Mr Frank Lyons, told him in May 2018 that he needed surgery but could wait to see if his shoulder improved. It did not improve, and on 17 June 2019 Mr Lyons performed open surgery including decompression, acromioplasty, resection of the bursa and debridement of the rotator cuff.[1] At a final review in August 2019, Mr Lyons noted that Mr Allwood’s progress was satisfactory, that the right shoulder felt almost normal, that no further treatment was required, but that he should be sensible with his movements.[2]

[1]        Plaintiff Court Book (‘PCB’) 31.

[2]        Ibid.

3Mr Allwood says that in spite of surgery, the right shoulder is not normal, and that he has been left with a permanent impairment of the shoulder consisting of muscle wasting in the posterior deltoid and supraspinatus, a reduced range of motion,  constant pain which is aggravated by lifting and reaching (including for activities such as washing his hair or toileting), or prolonged use and which disrupts his sleep if he rolls onto his right side, as well as restrictions in his domestic, social and occupational activities. He does not like taking pain medication because he fears that masking the pain will result in further injury or over-use of the shoulder, but he takes 2-4 Panadol, Nurofen or Panamax tablets three to four times per week, and the occasional Celebrex. He also uses anti-inflammatory gels. His right arm is weaker than his left, and activities such as vacuuming and mopping aggravate his pain. He still manages to keep the house he lives in with his mother neat and tidy.

4Since 2003 he has run his own business providing first aid training and equipment. The training required him to work with equipment and manoeuvre dummies. From around 2008, his business started providing first aid and paramedics to cover festivals and events. He would recruit the volunteers, arrange for the transport of, and then set up, the mobile emergency room at venues, and provide first aid.  He continued to be a first aid trainer. Since the transport accident, he is still able to work up to 80 hours per week, including interstate, in the busy months of the year (between January and April), but can no longer train people in first aid himself because of the heavy lifting involved, and he has had to contract that work to others. He has shifted the focus of his business to arranging first aid at events, mainly on weekends, but is no longer able to load the trailers holding the equipment, nor to set up the mobile emergency rooms. He cannot drive more than 30 minutes without taking a break.  He belongs to a motorcycle club but has sold his bike because riding causes him pain and he has less control of the bike. He used to ride a mountain bike 80-100 kms per week, and also rode a pushbike, but can no longer do either activity due to right shoulder pain. He remains engaged in monthly meetings with a charitable organization and attends its functions.

5The defendant says that the right shoulder surgery performed on 17 June 2019 was successful, and that, in spite of ongoing right shoulder pain, for which he generally declines to take any medication, Mr Allwood has retained the capacity to perform all the relevant domestic duties at home where he lives with his elderly mother, to socialise with his motorcycling colleagues at the club, with the other members of the Order of St John, and with his angler friends. He can also run his business 80 hours per week during the summer months, which involves driving long distances. He only takes over the counter medication, and not on a daily basis. For these reasons, the defendant says that while the consequences of his permanent right shoulder impairment may be considerable, they do not meet the narrative test for serious injury.

6The plaintiff gave evidence at the hearing and was cross-examined. No other witnesses were called. The parties tendered court books and made brief oral submissions. I have considered all of the evidence as well as the submissions of counsel.

7I found the plaintiff to be a straightforward, understated and genuine witness. His account of his pain and restrictions is largely consistent with what he has told treating and examining experts, and I accept it. However, given the consensus of expert opinion to the effect that he has a full range of motion in the right shoulder and no muscle wasting, I put to one side the references to these matters in his affidavits.

8I turn briefly to the medical evidence. Dr Joseph Slesenger, occupational physician,  reported to the defendant’s solicitors in early September 2022 his conclusion that Mr Allwood is likely to permanently suffer “mild residual discomfort” in the right shoulder; that he had adapted to his disability with increased reliance on staff; and that he should permanently avoid:  pulling/pushing/carrying or lifting over 15 kg and only 5 kg on a repetitive basis; sustained over shoulder reaching; and driving for more than four hours (with a break at two hours).[3]

[3]        Defendant Court Book (‘DCB’) 19.

9Dr David Elder, consultant in occupational and environmental medicine, reported to the defendant on 20 July 2021 that the plaintiff complained of pain upon movement of the right shoulder at a level of 3/10 increasing to 8/10 with activity above shoulder height and to 10/10 if he rolls onto it at night. Dr Elder diagnosed chronic right shoulder pain, which was being appropriately treated with non-steroidal anti-inflammatories. He felt that Mr Allwood’s activities of daily living “do not appear to be affected” although he accepted that Mr Allwood permanently could no longer conduct first aid training, nor set up marquees or do manual handling activities.[4]

[4]        Ibid 7.

10Mr Stephen Doig, orthopaedic surgeon, provided two reports to the plaintiff’s solicitors. In the second of his reports, dated 26 November 2020, Mr Doig noted that Mr Allwood complained of ongoing problems such as aching with too much use, or with carrying in the right arm and that the shoulder was not normal.[5] Mr Doig found that his range of movement had improved since the last examination in July 2018 and that his power was clinically normal. However, he had ongoing social and work-related restrictions. In spite of the low orthopaedic impairment, Mr Doig noted that his right shoulder has “given him considerable troubles” and that this was unlikely to improve significantly.[6]

[5]        PCB 38.

[6]        Ibid 40.

11Mr Ash Chehata, orthopaedic surgeon, reported to the plaintiff’s solicitors on 6 May 2022 that the plaintiff had a transport accident-related consistent chronic pain with a guarded prognosis. He had a full range of movement in the right shoulder, but felt ongoing weakness with repetitive use above shoulder height. Mr Chehata concluded that the plaintiff’s capacity to perform his pre-injury duties had been affected, and that his domestic, social and leisure pursuits had been affected in that he could no longer ride his motorbike, set up marquees or drive long distances.

12Dr Albert Kaplan, psychiatrist, reported to the plaintiff’s solicitors on 23 February 2021 that the plaintiff told him he had a passion for motorcycle riding and missed this activity; and that he could no longer mow the lawn at home, nor set up heavy equipment for his work.[7] Dr Kaplan found him to be a “highly motivated individual” whose ability to cope with his right shoulder pain and physical limitations “is a reflection of his personality strengths and emotional resilience”.[8]

[7]        Ibid 74.

[8]        Ibid 76.

Findings and reasons

13As indicated above, I found the plaintiff to be a straightforward witness who presented as quite stoic in putting up with chronic constant pain without resorting to daily prescription medication.

14I acknowledge that in spite of the permanent impairment of the right shoulder, Mr Allwood has retained the capacity to live at home, been able to adjust his work activities to accommodate his physical restrictions, and continues to socialise with colleagues in various recreational contexts (motorcycling, angling, and charitable organizations).

15However, he has lost the ability to freely and extensively use his dominant right arm without substantial pain and a feeling of weakness. His chronic pain is aggravated by some activities of daily living (toileting and washing), driving long distances, undertaking repetitive domestic tasks, or sitting at the computer for long periods. He is permanently restricted in driving long distances, lifting weights, or undertaking activities above shoulder height. All movements of the right shoulder produce pain, sometimes in the order of 8/10 when using the arm repetitively or up to 10/10 when rolling over in bed at night. He suffers from disturbed sleep several times per week due to right shoulder pain. Once the pain takes hold, he finds it hard to settle it down.  He takes medication three to four times per week and uses Deep Heat or Voltaren Gel to relieve morning stiffness in the right shoulder. His right shoulder feels weaker than it used to be. He can no longer ride his motorbike, pushbike or mountain bike which he used to do extensively, nor enjoy fishing. He can no longer train people in first aid. He can no longer load or unload his trailer for events, nor set up or dismantle marquees.

16In all the circumstances, I am satisfied that the pain and suffering consequences of the permanent impairment of the right shoulder are more than considerable when compared with other cases in the range of permanent physical impairments.

Conclusion

17Leave is granted to the plaintiff to issue common law proceedings for pain and suffering. I reserve the question of costs.