Aranjuez v Transport Accident Commission
[2024] VCC 866
•18 June 2024
affidavit
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-22-04145
| ELOISA ARANJUEZ | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 June 2024 | |
DATE OF JUDGMENT: | 18 June 2024 | |
CASE MAY BE CITED AS: | Aranjuez v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 866 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the right shoulder
Legislation Cited: Transport Accident Act 1986 (Vic), s93(17)
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Grima v Victorian Workcover Authority [2018] VCC 29; Fazlic v Milingimbi Community Inc (1982) 150 CLR 345
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A J McG Moulds KC with Mr R E L Lewis | Gordon Legal |
| For the Defendant | Ms V Katotas with Ms K Karadimas | Lander & Rogers |
HER HONOUR:
Introduction
1The plaintiff, Ms Eloisa Aranjuez, is a forty-six-year-old bookkeeper. She was injured in a transport accident on 1 October 2019, when her vehicle was struck from behind whilst she was exiting the Western Ring Road, at the Princes Freeway off-ramp exit towards Geelong (“the transport accident”).
2Ms Aranjuez seeks leave to issue a common law proceeding for damages pursuant to s93(17) of the Transport Accident Act 1986 (Vic) (“the Act”). Her claim is that she has a “serious injury” of her right shoulder.
3To obtain leave, Ms Aranjuez must demonstrate that the long-term impairment consequences of her right shoulder condition are more than “significant” or “marked”, and “at least as very considerable”.[1]
[1]Humphries and Anor v Poljak [1992] 2 VR 129
4The relevant legal principles are well-known and were not in dispute.
5The defendant, the Transport Accident Commission (“the TAC”) contested the proceeding on the basis that Ms Aranjuez was not a reliable witness, Ms Aranjuez had not disentangled the impairment consequences of other conditions, Ms Aranjuez’s right shoulder condition was not long-term, and that the impairment consequences did not satisfy the relevant threshold.
6Therefore, the issues for determination are as follows:
(a) Was Ms Aranjuez a reliable witness?
(b) Has Ms Aranjuez disentangled the impairment consequences of her right shoulder condition from other conditions?
(c) What is the injury to the right shoulder and what are the impairment consequences?
(d) Are the impairment consequences long-term?
(e) Are the pain and suffering and/or pecuniary disadvantage consequences “serious”?
7For the following reasons, I find that Ms Aranjuez has satisfied her onus to establish that she has a “serious injury” to her right shoulder.
Background
8The following matters of background were, I believe, uncontroversial. Where they were contested, these represent my findings save where otherwise indicated.
9Ms Aranjuez was born and raised in the Philippines. She completed secondary school, was awarded a Bachelor of Psychology, and studied accountancy subjects at De La Salle University in the Philippines.
10Ms Aranjuez is right-hand dominant but writes with her left hand.[2]
[2] Transcript (“T”) 21
11She migrated to Australia in 2002, aged twenty-five years. She has lived in the Philippines at various times since then. She married in 2003. Her children were born in 2005 and 2008. She divorced in 2011. Ms Aranjuez has been in a relationship with her current partner, Mr Michael Atkins, since 2017.
12After arriving in Australia, Ms Aranjuez pursued further studies, and was awarded a post-graduate Diploma in Psychology from Monash University. Thereafter, Ms Aranjuez obtained accountancy qualifications, including a bachelor’s degree in Accounting.
13Ms Aranjuez started a business in May 2016, providing bookkeeping services. She worked in that business between 2016 and 2019.
14In May 2019, Ms Aranjuez stopped working in her own business and took employment as a bookkeeper, working 30 hours a week, mostly from home.
15As I have said, Ms Aranjuez suffered her injury in a transport accident on 1 October 2019. She was driving her vehicle, and her two children were also with her. It was a high-speed accident.
16Following the transport accident, Ms Aranjuez presented at the Emergency Department of Sunshine Hospital. She complained of neck and back pain radiating to the right shoulder.[3]
[3] Plaintiff’s Amended Court Book (“PCB”) 20
17This application initially related to impairments to Ms Aranjuez’s spine, both shoulders and a mental or behavioural disturbance or disorder; however, at the commencement of the hearing, the application was confined to the right shoulder and its consequential psychological condition.[4]
[4]Richards v Wylie (2000) 1 VR 79
18Ms Aranjuez’s right shoulder condition has been treated conservatively.
19Imaging of the right shoulder in 2020 was reported to reveal mild tendinosis of the mid supraspinatus tendon fibres with a small intrasubstance tear and associated mild subacromial bursitis.[5]
[5] PCB 142
20An MRI scan in November 2021 was reported to reveal moderate subacromial-subdeltoid bursal effusion/bursitis and supraspinatus tendinosis.[6]
[6]PCB 161
21Ms Aranjuez was under the care of Mr James Chui, orthopaedic surgeon, between July 2020 and December 2022. Mr Chui administered ultrasound-guided cortisone injections to both shoulders in July 2020. Ms Aranjuez experienced improvement in the condition of her left shoulder, but her right shoulder symptoms persisted. She had further ultrasound-guided injections to her right shoulder in November 2020 and July 2022.
22In December 2020, Mr Chui recommended that Ms Aranjuez undergo a right shoulder arthroscopic subacromial decompression and biceps tenodesis. The TAC agreed to fund that surgery, but Ms Aranjuez chose not to have it. I will come back to the explanations for this and the relevance to this claim later in these reasons.
23Ms Aranjuez was under the care of Dr Symon McCallum, pain physician, between February 2021 and June 2022. She attended a pain management program between July and October 2021.
24Ms Aranjuez has also had physiotherapy, hydrotherapy, osteopathy and naturopathic treatment. She consulted a psychologist.
25Currently, Ms Aranjuez is prescribed Mobic and Topiramate for the symptoms arising from her right shoulder condition. She also takes Panadol several days a week.[7] She has physiotherapy treatment, performs exercises recommended by her physiotherapist and uses a heat pack.
[7] PCB 42, T28, T38
26So far as her employment is concerned, Ms Aranjuez had some time off work due to her injuries but was able to resume bookkeeping work for 30 hours a week by November 2020. She continued to do so until the day before the hearing, when she lost her employment due to a disagreement with her employer.
27Ms Aranjuez lives in suburban Melbourne with her two children.
Was Ms Aranjuez a reliable witness?
28Leading counsel for the TAC submitted that Ms Aranjuez’s evidence was not clear, that she had not been entirely frank in her affidavits and had not been honest with Mr Chui regarding her reasons for not having the surgery he recommended.
29Senior counsel for Ms Aranjuez submitted that she was a credible and reliable witness whose evidence should be accepted.
30I find that there were some matters which Ms Aranjuez omitted from her affidavits:
(a) She had not disclosed that at the time of the transport accident, she was performing bookkeeping activities for a second employer, “Slate Accounts”. She was doing this for a single client by way of winding up her employment with that other employer. That work ceased in December 2019;
(b) She had not disclosed in her first two affidavits, sworn 30 October 2021 and 5 April 2023, that prior to the transport accident, she periodically had issues with anal fistulas and haemorrhoids which had required surgery on two occasions;
(c) She had not disclosed in her most recent affidavit, affirmed 1 May 2024, that since the start of 2024, in addition to working 30 hours a week for her employer, she was also performing about two hours a week of casual bookkeeping work for one client under her ABN.
31I do not find that Ms Aranjuez’s failure to disclose the above matters impacted upon her credit in any significant way. They were of peripheral importance. No material pecuniary disadvantage consequences were being relied upon in this application. The undisclosed medical conditions were not ongoing and were not producing any impairment consequences.
32My findings regarding Ms Aranjuez’s credibility and reliability are also supported by her response to questions regarding her dog and surveillance footage shown by the TAC. When asked whether she lifted her labrador in August 2022 (when he was an eight-month-old puppy), she accepted that she probably did so.[8] Subsequently, surveillance was shown from August 2022, which showed Ms Aranjuez lifting the puppy out of her car using both arms, but with her left arm absorbing most of the weight. This was part of a total of approximately four minutes of surveillance footage taken on 8, 10 and 18 August 2022 that was shown by the TAC. Apart from the occasion when Ms Aranjuez lifted the puppy out of her car, the remainder of the footage showed her walking her puppy, holding the lead with her left hand. She said she used her left hand because of her right shoulder problems. I accept that evidence.
[8] T21
33I found Ms Aranjuez to be a straightforward witness. I accept that she had some memory difficulties, but I am satisfied that she answered questions honestly. Importantly, the impairment consequences Ms Aranjuez claimed because of her right shoulder condition were not challenged in any significant way during cross-examination. I generally accept her account of her impairment consequences.
Has Ms Aranjuez disentangled the impairment consequences of her right shoulder condition from other conditions?
34Ms Aranjuez continues to suffer from pain in her left shoulder and low-back. I accept her evidence that such pain has diminished over time. In particular, her low-back pain has lessened because of the regular walking habit necessitated by exercising her dog. Insofar as there are continuing left shoulder and low-back symptoms, I find that Ms Aranjuez has disentangled the impairment consequences referable to those conditions from those due to her right shoulder injury.
35I accept Ms Aranjuez’s evidence regarding the issues she had with anal fistulas and haemorrhoids in about 2002, 2014 and 2023. Those conditions were incapacitating for discrete periods of time, but she does not currently suffer any impairment in that regard.
36In December 2023, Ms Aranjuez developed a problem with pain in her left knee. For a time, this made it difficult for Ms Aranjuez to walk, and she needed to use a cane. The condition has now improved, and Ms Aranjuez can walk without a cane.
37Ms Aranjuez can rely upon the psychological impairment consequences of her right shoulder injury in this application, but not upon any primary mental or behavioural injury or impairment consequent upon her low-back and left shoulder condition. I am satisfied that the evidence enables the identification of the relevant psychological consequences, given that it is the right shoulder condition which is productive of the majority of Ms Aranjuez’s current pain and restrictions.
38I find that Ms Aranjuez has sufficiently disentangled the impairment consequences of her right shoulder condition from other unrelated conditions.
What is the injury to the right shoulder and what are the impairment consequences?
39Ms Aranjuez said that she suffers from constant variable pain in her right shoulder. She is restricted in performing above shoulder height movements and reaching behind her back. Those restrictions impact on her ability to put on her bra and raise her arms when dressing or doing her hair. Repetitive movements of her right shoulder cause an increase in pain. Her sleep is affected by right shoulder pain. Her right shoulder pain has impacted her intimate relations. She struggles to perform domestic chores and gardening. For instance, she needs to use her left hand to support her right arm when lifting and pouring from a full kettle.
40Ms Aranjuez said that various sporting activities that she previously enjoyed with her children have been impacted by her right shoulder condition. The most significant was that she has been unable to play tennis since the transport accident. This was an activity she enjoyed regularly with her children, and she had been a regular club player previously. Ms Aranjuez said that a consequence of her lack of physical activity has been weight gain, lowered confidence, and poor self-esteem.
41Ms Aranjuez tendered two affidavits from her partner, Mr Atkins, sworn 14 June 2022 and 10 May 2024. Mr Atkins’ evidence generally corroborated Ms Aranjuez’s account of her impairment consequences.
42The TAC did not seek to cross-examine Mr Atkins. Leading counsel for the TAC submitted that as Mr Atkins and Ms Aranjuez did not live together, and as he visited her only once a week or so, and did not stay over, he could not give reliable evidence as to her functioning. I accept that Mr Atkins’ evidence is to be considered in that context.
43Leading counsel for the TAC submitted that an adverse inference ought to be drawn because Ms Aranjuez did not tender an affidavit from her adult daughter. Her daughter sat in Court throughout the hearing. There was no explanation for the failure to tender an affidavit from her.
44I do find that the evidence of Ms Aranjuez’s daughter would not have assisted her case but given that the TAC did not significantly challenge Ms Aranjuez’s impairment consequences, that finding is of little assistance in the resolution of this application.
45This is a convenient point at which to consider the medical evidence tendered by the parties.
Treater material
46Ms Aranjuez tendered three general practitioner reports which related to attendances for treatment for her transport accident injuries in 2019 and 2020. There was no general practitioner report tendered detailing Ms Aranjuez’s current treatment.
Mr James Chui, orthopaedic surgeon
47Ms Aranjuez tendered two reports from Mr Chui, dated 14 October 2020 and 28 February 2023.
48Mr Chui outlined his treatment of Ms Aranjuez between July 2020 and December 2022.
49Mr Chui diagnosed right shoulder impingement and partial thickness tearing of the supraspinatus, biceps tendinopathy and acromioclavicular joint arthropathy.
50Mr Chui recommended Ms Aranjuez undergo arthroscopic surgery to her right shoulder. He said that she reported that her personal and family circumstances prevented her from pursuing that option.
51Mr Chui opined that conservative therapy had failed and, if the symptoms were severe enough, the final option was an arthroscopic subacromial decompression +/- biceps tenotomy/tenodesis.
Dr Symon McCallum, pain physician
52Ms Aranjuez tendered eight reports from Dr McCallum detailing his treatment of her low-back and bilateral shoulder injuries between February 2021 and June 2022.
53Dr McCallum diagnosed the right shoulder injury as bursitis, supraspinatus tendinosis and acromioclavicular joint arthropathy. He recommended continuing active physiotherapy.
Pain management
54Ms Aranjuez tendered a pain management program report dated October 2021, which noted Ms Aranjuez’s participation in a pain management program between July and October 2021. The diagnosis was central sensitisation, and anxiety associated with ongoing pain in the shoulder and back. The report noted that Ms Aranjuez had benefitted from the pain management program and had implemented various strategies to assist her to cope with her conditions.
Dr Kelly Johnson, psychologist
55Ms Aranjuez tendered a report from Dr Johnson dated 25 May 2022. She noted her treatment of Ms Aranjuez with cognitive behaviour therapy for chronic pain and anxiety due to the transport accident.
56Dr Johnson diagnosed an Adjustment Disorder with Mixed Anxiety and Depression related to the transport accident and subsequent chronic pain.
Nyla Rasheed, physiotherapist
57Ms Aranjuez tendered a report from Ms Rasheed dated 9 May 2024, in relation to her treatment since January 2024.
58Ms Rasheed noted that Ms Aranjuez had a restricted range of motion in both shoulders, the right more than the left. The “possible diagnosis” was rotator cuff pathology with subacromial bursitis. Ms Rasheed said:[9]
“… Eloisa had [a] limited number of sessions only and her irritability in the shoulder was very high due to the chronicity of the problem. Hence it is quiet [scil quite] difficult to see any changes due to the limitations in the time frame. Eloisa would benefit from [an] MRI of the shoulder or a specialist review is required to know the prognosis of the condition.
…
We are not aware whether the injury has been stabilized as she is still very irritable. As stated before, further investigations are necessary to know the soft tissue structures involved in order to analyze the extent of the injury. We are unable to reach Eloisa in order to get further details regarding her previous investigations and the treatment given by previous practitioners.”
[9] PCB 111
Medico-legal material
Mr Ash Chehata, orthopaedic surgeon
59Ms Aranjuez tendered a report from Mr Chehata dated 2 September 2021. Mr Chehata examined Ms Aranjuez on 31 August 2021.
60Mr Chehata found a reduced range of motion in both shoulders, the right worse than the left. He opined there was a likely psychological component to Ms Aranjuez’s presentation, with a “central sensitisation phenomena coupled with a chronic pain presentation”.[10] He opined there was likely bursitis in both shoulders. He found no inconsistencies between the radiology, findings on examination and Ms Aranjuez’s complaints of injury and disability.
[10] PCB 131
61Mr Chehata opined the prognosis was ultimately poor.
Mr Russell Miller, orthopaedic surgeon
62Ms Aranjuez tendered three reports from Mr Miller dated 11 January 2023, 5 April 2024, and 27 May 2024. Mr Miller examined Ms Aranjuez on 3 January 2023 and 4 April 2024.
63On both occasions that he examined Ms Aranjuez, Mr Miller noted that the right shoulder was reported as the “major problem”.[11] Mr Miller found a reduced range of motion in that shoulder and “marked irritability”.[12]
[11] PCB 139
[12] PCB 141
64Mr Miller opined that Ms Aranjuez’s ongoing symptoms were attributable to rotator cuff dysfunction, capsulitis pathology in the acromioclavicular joint and the manifestation of a Chronic Pain Syndrome. The prognosis was only “fair”. The injuries had substantially stabilised. He opined that Ms Aranjuez’s orthopaedic problems were satisfactorily explained by defined disease. He noted she may benefit from surgery to the right shoulder.
65Mr Miller was asked to comment on the report from Ms Rasheed, and whether Ms Aranjuez’s condition was stable. He remained of the view that her condition had substantially stabilised.
Dr Graeme Doig, orthopaedic surgeon
66The TAC tendered a report from Dr Doig dated 15 June 2022. Dr Doig examined Ms Aranjuez on 1 June 2022.
67On examination, Dr Doig found a reduced range of motion in both shoulders and diagnosed soft-tissue injuries to the cervicothoracic spine including the trapezius muscles in the neck.
68He opined that Ms Aranjuez’s presentation was consistent with the transport accident, that psychosocial issues were not impacting upon her presentation, and that the prognosis was guarded. He noted that “treatment for this type of condition is extremely difficult”.[13]
[13] Defendant’s Amended Court Book (“DCB”) 16
Mr Richard Pennington, orthopaedic surgeon
69The TAC tendered two reports from Mr Pennington, dated 2 March 2023 and 14 March 2024. Mr Pennington examined Ms Aranjuez on 2 March 2023 and 14 March 2024.
70On examination on the first occasion, Mr Pennington found a reduced range of motion in both shoulders, right worse than left. He diagnosed mild subacromial bursitis affecting the right shoulder. He opined “there has been no structural abnormality caused by the transport accident”.[14] He was of the view that the condition had stabilised, and the prognosis was poor, noting “… there is minor structural pathology on imaging investigations, and I would normally expect these conditions to settle with the treatment that she has received”.[15]
[14] DCB 34
[15] DCB 36
71On examination on the second occasion, Mr Pennington again found a reduced range of motion in both shoulders, the right worse than the left. He noted that there had been an improvement in the range of movement and “the [right] shoulder is less irritable”. His diagnosis was “functional right shoulder pain”.
72In response to a question regarding “the presence of any non-organic signs and inconsistencies on presentation”, Mr Pennington said:[16]
“Please see Functional Assessment of the report. Jobe’s and Hawkin’s tests were negative, and she had excellent strength at 5/5 power with no pain when distracted. There was otherwise pain when performing these manoeuvres.”
[16] DCB 48
Findings
73I prefer the opinion of Ms Aranjuez’s treating orthopaedic surgeon, Mr Chui, who has seen and examined her on multiple occasions. His diagnosis is broadly supported by Dr McCallum, Mr Chehata and Mr Miller, although the latter additionally diagnosed central sensitisation and a Chronic Pain Syndrome. I prefer those opinions to the opinions of Dr Doig and Mr Pennington. Dr Doig did not diagnose the right shoulder condition despite noting imaging findings and a restricted range of motion on examination. Mr Pennington’s opinion that Ms Aranjuez’s right shoulder pain is “functional” is against the weight of the other medical evidence and insufficiently explained.[17]
[17] T49
74I find that Ms Aranjuez is suffering from right shoulder impingement and partial thickness tearing of the supraspinatus, biceps tendinopathy and acromioclavicular joint arthropathy as a result of the transport accident.
75I accept Ms Aranjuez’s account of her right shoulder impairment consequences. She experiences constant but variable pain, requiring prescription medication. She takes Mobic, four days on and four days off.[18] She limits her intake in that way because of advice from her endocrinologist that Mobic might damage her liver. Ms Aranjuez takes Panadol approximately three days a week in addition.
[18] T38
76Ms Aranjuez’s sleep is disturbed each night, and she takes daily medication by way of Topiramate for this.
77I accept that Ms Aranjuez has put on significant weight since the transport accident by reason of an inability to be as active as she was previously due to her right shoulder injury. This has had the knock-on effect of lowering her self-esteem and has led to the loss of her sex life with her partner.
78I find that Ms Aranjuez’s right shoulder condition impacts on her ability to put on her bra and limits her when washing and combing her hair.
79I accept that Ms Aranjuez struggles to perform domestic chores, cooking and gardening activities requiring any significant right shoulder use.
80I find that Ms Aranjuez is unable to actively participate in sporting activities she previously enjoyed with her children. In particular, I accept that she has lost the capacity to play tennis by reason of her right shoulder condition. It was a sport she played regularly, including club matches, and she enjoyed it a great deal.
Are the impairment consequences long-term?
81Leading counsel for the TAC submitted that Ms Aranjuez had not satisfied her onus to establish that the impairment consequences of her right shoulder condition are long-term. The primary basis for this submission was that Mr Chui had recommended surgery that Ms Aranjuez had chosen not to have. It was submitted that choice was not genuine, and was unreasonable.
82The TAC referred to a decision of Judge Tsalamandris, as her Honour then was, in Grima v Victorian Workcover Authority.[19] Leading counsel submitted that if it is found that Ms Aranjuez’s refusal to undergo the recommended surgery was unreasonable, then her condition ought not to be found to be long-term.
[19][2018] VCC 29
83Further, it was submitted, based on the opinion of the treating physiotherapist, Ms Rasheed, that Ms Aranjuez’s right shoulder condition may not be stable. Leading counsel submitted that the subsequent opinion from Mr Miller on this point did not support a finding that the condition was stable.
84Senior counsel for Ms Aranjuez submitted that her decision not to proceed with the recommended surgery was both genuine and reasonable. Given that she was not willing to have the surgery, and she genuinely made that decision, the evidence supported the conclusion that Ms Aranjuez’s symptoms would continue in the long-term.
85I find that the proposed surgery, whilst arthroscopic, was significant. Indeed, the planned rehabilitation following the surgery was anticipated to involve up to six months of physiotherapy/hydrotherapy, and a need for home help for up to three months. I accept Ms Aranjuez’s evidence that she was fearful of having the surgery and was not willing to take the “gamble … because at the moment, at least I can use [my right shoulder]”.[20]
[20]T17
86I accept Ms Aranjuez’s evidence that she spoke to family and friends who had some experience of shoulder surgery with less-than-optimal outcomes, and that influenced her decision.
87Ms Aranjuez candidly accepted that she had not told Mr Chui about her real fears regarding the surgery, instead telling him that her personal circumstances as a single mother were the impediment. I accept that she took that course because she perceived he was “pushy” about the surgery and that he told her: “Eventually [the] TAC’s going to be upset that you don’t want to do the surgery, and then they’re just gonna let you go, and they’re not gonna help you”.[21]
[21]T19
88I find that Ms Aranjuez is genuine when she says that she will not have the surgery.
89I am not prepared to find that it is unreasonable for her to choose not to have the surgery given Ms Aranjuez’s state of knowledge at the relevant time.[22] This is because it is significant surgery, requiring a substantial period of rehabilitation, and such surgery does not have a guaranteed outcome. Those are appropriate matters for Ms Aranjuez to have taken into account in making her decision. Further, I do not find it is unreasonable for her to be influenced by the experiences of her friends and family, albeit that their individual circumstances were not known. I am fortified in my conclusions by the fact that none of the doctors whose medical opinions were tendered has suggested that Ms Aranjuez was unreasonable to refuse the proposed surgery.
[22]Fazlic v Milingimbi Community Inc (1982) 150 CLR 345
90I find, based on the evidence of Mr Chui, Mr Chehata and Mr Miller that the impairment consequences of the condition of Ms Aranjuez’s right shoulder, which have now persisted for more than four-and-a-half years, are likely to be long-term. To be clear, I do not accept the submission that Mr Miller’s opinion that Ms Aranjuez’s right shoulder condition “had substantially stabilised” equates to it not being sufficiently stable to satisfy the requirement that it be “long-term”.
91I prefer the orthopaedic opinions on this issue to that of the treating physiotherapist, given their speciality, and because those surgeons had the benefit of reviewing the imaging of Ms Aranjuez’s right shoulder whereas Ms Rasheed did not.
Are the pain and suffering and/or pecuniary disadvantage consequences “serious”?
92Leading counsel for the TAC submitted that Ms Aranjuez’s impairment consequences could not fairly be described as more than “significant” or “marked” and “at least very considerable”, particularly when what is lost is considered in the context of what is retained.
93Ms Aranjuez has retained the capacity to work as a bookkeeper for 30 hours a week, as she did prior to the transport accident. Indeed, senior counsel on her behalf accepted this was not a claim in which pecuniary disadvantage consequences played any significant role. Ms Aranjuez remains able to walk and drive but cannot drive for prolonged periods. She remains capable of caring for her children and home, albeit with adaptations.
94In performing the value judgment required of me, I find that the impairment consequences of Ms Aranjuez’s right shoulder condition are more than significant or marked and at least very considerable. The factors that tip the balance in this case are her constant pain requiring prescription medication; daily sleep disturbance requiring prescription medication; interference with personal care; interference with domestic activities; loss of her self-esteem and sex life as a result of the consequential weight gain, and the loss of sporting activities, tennis in particular. Considering all the evidence, I am satisfied that the statutory test has been met.
Conclusion
95Ms Aranjuez is granted leave to bring a common law proceeding in respect of the injuries she suffered in the transport accident on 1 October 2019.
96I will hear the parties on the issue of costs.
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