Bell v Transport Accident Commission
[2023] VCC 462
•31 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-03292
| JOSHUA MATTHEW BELL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSIKARIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 March 2022 | |
DATE OF JUDGMENT: | 31 March 2023 | |
CASE MAY BE CITED AS: | Bell v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 462 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – motor vehicle accident – injury to the left shoulder – compensable injury – range – credibility
Legislation Cited: Transport Accident Act 1986 (Vic), s93(17)
Cases Cited: Humphries and Anor v Poljak [1992] 2 VR 129; Barlow v Hollis [2000] VSCA 26; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Abbas v Transport Accident Commission [2015] VSCA 217; Woolworths Ltd v Warfe [2013] VSCA 22
Judgment: Leave granted to the plaintiff to commence proceedings for damages in respect of injuries suffered in the transport accident on 26 November 2015.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G K Coldwell with Mr R E L Lewis | Pentana Stanton Lawyers |
| For the Defendant | Mr S A Smith KC with Mr R J Ajzensztat | Wisewould Mahony |
HER HONOUR:
1The plaintiff, now aged 27, was injured in a transport accident on 26 November 2015. He was a passenger in a car driven by Kaleb Johnson (“the driver”) along Scott Road, Cranbourne, when he lost control of the vehicle and struck several trees in a high-impact collision.
2The plaintiff likely lost consciousness and was transferred to The Alfred hospital via ambulance where he was treated for a head laceration, left shoulder AC joint separation and a left wrist laceration.[1] The plaintiff underwent ligament reconstruction surgery to his left shoulder on 29 November 2015 and was discharged on 30 November 2015.[2]
[1] Plaintiff’s Court Book (“PCB”) 37-39
[2] PCB 37-39
The application
3The plaintiff seeks leave pursuant to s93(17) of the Transport Accident Act 1986 (“the Act”), to commence proceedings for common law damages in relation to the transport accident. The body function relied upon is to the plaintiff’s left shoulder under paragraph (a) of the relevant definition of “serious injury”.
4In order to succeed, the plaintiff must satisfy the Court that he has sustained a serious long-term impairment or loss of a body function of the left shoulder within the meaning of sub-paragraph (a) of s93(17) of the Act.
5I must make the assessment of serious injury at the time the application is heard. The term “serious injury” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[3]
[3]Humphries and Anor v Poljak [1992] 2 VR 129 at 170 and accepted by the Court of Appeal in Barlow v Hollis [2000] VSCA 26, in particular, Chernov JA at paragraph [29]
6The plaintiff relied upon two affidavits sworn by him on 29 March 2019, and 15 February 2022, and an affidavit sworn by his mother, Nerida Bell, on 22 March 2022.
7In addition, both parties relied on medical reports and other material which was tendered in evidence. At the hearing of the application the plaintiff gave evidence and was cross-examined. I have read all the tendered material and I will refer to the relevant evidence to the extent necessary in these reasons.
The issues
8Counsel for the defendant submitted at the outset that the issue in dispute was whether the plaintiff’s consequences met the “very considerable” threshold as required by the legislation.[4] During cross-examination, the defendant launched an attack on the plaintiff’s credit.
[4] Transcript (“T”) 9, Line (“L”) 20
Background
9The plaintiff only recently turned 27 years of age. He left school without successfully completing Year 10 and his only qualification is a Certificate II in Hand Brake Turn from Dandenong TAFE.[5]
[5] Affidavit of Joshua Bell sworn on 29 March 2019, PCB 3
10Prior to the transport accident, he had performed primarily physical-type work and he was employed for approximately six months in a garage with a diesel mechanic but had left that work. At the time of the accident, the plaintiff was not working, and he was receiving Centrelink payments.[6]
[6] Ibid, PCB 5
11The plaintiff, at 19 years of age, was involved in a transport accident on 26 November 2015 when he was the passenger in a vehicle being driven by his friend.[7] His friend was driving on a dirt road in wet conditions when he lost control of the car and hit a tree at high speed. Following the accident, the plaintiff was taken by ambulance to The Alfred hospital for treatment of a head laceration, left wrist laceration and left shoulder acromioclavicular (AC) joint separation.[8] He underwent surgery to repair the left shoulder AC dislocation. The plaintiff was discharged on 30 November 2015 and prescribed Paracetamol, Celecoxib, Endone and Tramadol.[9]
[7] Ibid, PCB 4
[8] Ibid
[9] PCB 38
12The plaintiff was referred for physiotherapy but only attended once because of the cost involved. He underwent follow-up treatment as an outpatient at The Alfred hospital, attending on six occasions between December 2015 and 16 May 2016.[10]
[10] Affidavit of Joshua Bell sworn on 29 March 2019, PCB 5
13The plaintiff was able to return to some limited work following the transport accident but deposed that he struggled with lifting and shoulder pain. At the time of the hearing of the application, he was registered for voluntary work as part of fulfilling Centrelink requirements for the Newstart Allowance. He was not otherwise employed.
Medical evidence
14The medical evidence was very limited and set out in reports by Mr Russell Miller, orthopaedic surgeon; Dr Brendan Hayman, consultant psychiatrist, and Dr Anthony Menz, consultant orthopaedic surgeon.
Mr Russell Miller
15Mr Miller examined the plaintiff on behalf of both the Transport Accident Commission (“TAC”) and the plaintiff’s solicitors on 11 May 2018.
16The plaintiff complained to him of ache and discomfort in the left forearm and no other specific orthopaedic symptomatology.[11] He reported that he used a range of medication including Panadol and had had physiotherapy in the past but that was not ongoing. He had not had hydrotherapy, nor did he use a brace or orthosis. He had been reviewed at The Alfred hospital but there were no further reviews and there were no plans for further surgery.[12] The plaintiff was not having any anti-depressant medications, psychological counselling or formal pain management. Mr Miller described the plaintiff as presenting “for examination neatly dressed and well groomed. He was co-operative. He was a clear and straight forward historian.”[13] He noted examination of the cervical spine was unremarkable and there was a rash on the left side of his neck.[14] There was restricted range of motion and irritability during the shoulder movement.
[11] PCB 42
[12] Ibid
[13] PCB 42
[14] PCB 43
17Mr Miller considered that the plaintiff had had appropriate treatment to date and would require ongoing conservative treatment that may include additional measures for pain management and rehabilitation.[15] In terms of his capacity for work, he considered that the plaintiff will have difficulty with work that involves large amounts of repetitive left arm actions, use of the left arm in above shoulder positions for extended periods and lifting weights of more than 10 kilograms.[16] The restrictions are permanent and accident related. The plaintiff could return to physical work provided the above-mentioned restrictions were in place and permanent.[17]
[15] PCB 44-45
[16] PCB 45
[17] Ibid
18Mr Miller arranged for up-to-date imaging of the left shoulder, and after review of the radiology, confirmed that the plaintiff had undergone a resection arthroplasty of the outer end of the clavicle, although the hospital operation report did not specifically document this.[18] He remained of the view that the prognosis for the left shoulder was only fair.
[18] PCB 47-48
19Mr Miller examined the plaintiff again on instructions from the plaintiff’s solicitors and in his second report dated 5 November 2021, he noted that the plaintiff continued to complain of ache, discomfort and pain in the shoulder, worse with repetitive and overhead activities.[19] These caused some difficulties with activities of daily living and the plaintiff felt they precluded a return to work.
[19] PCB 51-52
20The plaintiff also reported that symptoms were a little worse than on the last review. On examination, Mr Miller again observed restricted motion, as well as mild swelling.[20] The measured range of motion was slightly more restricted than on the previous occasion. There was tenderness in the area and mild irritability during shoulder movement. The plaintiff confirmed that he had not undergone any further investigations.
[20] PCB 52
21Mr Miller opined that the plaintiff had undergone reconstructive surgery including resection of the outer end of the clavicle.[21] The ongoing symptoms were consistent with persisting problems with rotator cuff dysfunction, capsulitis and residual pathology in the acromioclavicular joint. The prognosis for the shoulder is only fair.[22]
[21] PCB 53
[22] Ibid
22Mr Miller maintained his opinion that capacity for work from the point of view of the left shoulder was compromised and that the plaintiff would have difficulty with work involving large amounts of repetitive left arm actions, use of the left arm in the above shoulder position for extended periods and lifting weights of more than 10 kilograms.[23]
[23] PCB 54
Dr Brendan Hayman
23Dr Hayman provided a report dated 16 August 2018.
24He conducted a psychiatric interview and took a history that the plaintiff had no documented prior psychiatric history.[24] He noted that the plaintiff suffers from occasional flashbacks of the accident and also has sporadic nightmares about the accident. The plaintiff reported having anxiety when getting into vehicles not operated by people known to him and that he is scared when he gets into vehicles.[25]
[24] PCB 59
[25] PCB 59
25The plaintiff reported that he is suffering from interrupted sleep and feels that he is limited in his future work capacities.[26] The plaintiff reported that his general practitioner prescribed the antidepressant, Escitalopram, but this was due to a relationship breakdown.
[26] Ibid
Dr Anthony Menz
26Dr Anthony Menz examined the plaintiff at the request of the defendant’s solicitors and provided a report dated 11 February 2022.
27Dr Menz took a history from the plaintiff of the transport accident, as well as a previous medical history of the plaintiff, and accepted that the plaintiff’s injury was consistent with the manner in which the accident occurred.[27]
[27] Defendant’s Court Book (“DCB”) 8
28The plaintiff reported to Dr Menz that his shoulder pain was a six out of ten. This was rejected by Dr Menz, stating, “that was not the impression I got today”.[28]
[28] DCB 7
29On examination of the left shoulder, Dr Menz reported that there was no obvious deformity at the AC joint and consequently stated that the surgical reduction was a success.[29] Dr Menz further reported that the plaintiff had a full range of movement of his left shoulder joint which also presented as quite pain free, save for some tenderness through palpation of the left AC joint.[30]
[29] Ibid
[30] Ibid
30Dr Menz was of the view that the there is no current radiological support for the plaintiff’s ongoing complaints of pain and disability after he reviewed the radiological investigations dated 16 May 2016.[31]
[31] DCB 9
31In his view, he did not accept that the plaintiff requires any further treatment for the left AC joint. He also did not accept that the current condition of the plaintiff adversely affects the plaintiff’s capacity to attend to daily living activities and that the plaintiff could undertake most work duties offered to him since the accident.[32]
[32] DCB 10
32Dr Menz reported that the plaintiff’s prognosis for good function of the left shoulder is very good.[33]
[33] Ibid
The parties’ submissions
33It was submitted on behalf of the plaintiff that:
(a) The plaintiff was involved in a severe impact, resulting in injury which required hospitalisation and major surgical intervention in the form of reconstructive surgery to his dominant left shoulder. The injury affected his ability to use his dominant left arm for physical activity and that ultimately restricted his work options, having regard to his background and ambition. The plaintiff had limited opportunities open to him and the consequences of the injury narrowed the window enormously;
(b) Mr Miller’s opinion is clearcut, in that the plaintiff will face ongoing difficulties for the remainder of his adult life;[34]
(c) The opinion of Mr Miller ought to be preferred to that of Dr Menz whose report read like that of an advocate,[35] in that he appeared to doubt the plaintiff’s veracity but did not outline why;
(d) If the Court accepts the evidence of the plaintiff and that his credibility has not been assailed, then he has suffered serious, or at least very considerable, consequences;[36]
(e) The plaintiff’s mother corroborates the account of the plaintiff, confirming that he has complained to her of difficulties sleeping, difficulties lifting and undertaking repetitive activities, and she has observed his inability to lift certain heavier items with his left arm.[37] She deposed as to his difficulties in helping her with the shopping, maintenance tasks, and carrying heavy items like bags of woodchips in the backyard;[38]
(f) The plaintiff has not had optimum treatment,[39] but he was not legally represented at the time that he was seeking treatment and he believed that treatment would not be paid for based on his attendance at the physiotherapist.[40]
[34] Transcript (“T”) 69, Lines (“L”) 6-9
[35] T71, L8
[36] T69, L13-16
[37] T70, L4-9
[38] Affidavit of Nerinda Bell sworn on 22 March 2022, PCB 21
[39] T67, L22-23
[40] T68, L2-6
34The defendant submitted that:
(a) I should not accept that the plaintiff was a credible witness;
(b) The medical evidence is extraordinarily limited;
(c) In May 2017, Dr Ljubica Raic-Uzelac, general practitioner, from the Thompson Road Clinic, found a full range of movement and normal power; Dr Menz effectively said there was virtually nothing wrong with the plaintiff, and Mr Miller’s findings on examination were modest;[41]
(d) The radiological scans did not indicate a problem of significance, the plaintiff was not using any prescription analgesic medication, there was no presentation of ongoing complaints to the general practitioners, and he was not having physiotherapy. The plaintiff concluded his treatment some four to five months after the accident and then ceased treatment;
(e) The injury had very limited effect on employment as there was very little difference to his career before the transport accident and his career afterwards. The plaintiff had undertaken work subsequent to the transport accident where he has been required to repetitively lift 25 to 30 kilograms,[42] which was contrary to the level of symptomatology and complaints which he alleged in his affidavit. When he engaged in such work, there was no suggestion that his left shoulder was problematic, and he only consulted his doctor for pain in his back.[43] There was no appreciable change in the plaintiff’s lifestyle, and he was living life pretty much the same as he did before;[44]
(f) The plaintiff did not regard the headaches to be of any significance, but he had far more treatment for headaches, according to the clinical notes in respect of the shoulder.[45] He claimed not to have undergone physiotherapy nor obtain prescription painkillers because of the cost involved in the context of an accepted TAC claim;[46]
(g) The plaintiff did not seek a second opinion from a doctor outside the Thompson Road Clinic.
[41] T64, L20-23
[42] DCB 40
[43] Ibid
[44] T66, L10-13
[45] T65, L24-27
[46] T35
Credit
35In challenging the plaintiff’s credit, the defendant submitted the following:
(a) The plaintiff was the principal source of evidence as to the pain and suffering consequences and there was no evidence of treatment after his discharge from the Outpatients’ Clinic of The Alfred hospital in May 2016 and the Court could accept that at that time, the doctors at the Outpatients’ Clinic had no reservation regarding the plaintiff’s recovery and clinical progress;
(b) The conclusion to be drawn from reading the clinical notes of the Thompson Road Clinic is that the doctors were simply unaware entirely that the plaintiff had ever had a motor vehicle accident with an injury to the left shoulder. There were 101 or 102 entries between November 2015 and November 2021 and there was not a single reference to a motor vehicle accident with an injury to the left shoulder;[47]
(c) The plaintiff gave contradictory evidence in respect of how many doctors he had consulted at the Thompson Road Clinic;
(d) The doctors at the Thompson Road Clinic had prescribed stronger forms of painkilling medication on a regular basis and there was no reticence on behalf of the doctors to prescribe pain-relief medication if necessary.[48] The plaintiff had not mentioned the shoulder pain when seeking Panadeine Forte and admitted he needed such medication for other problems causing him pain;
(e) It was a recent fabrication that the plaintiff used Panadeine Forte for shoulder pain as there was no reference in either of his affidavits that he did so;[49]
(f) The plaintiff’s suggestion that he was advised by a doctor, whose identity was not known, that nothing more could be done was not borne out by the clinical notes;
(g) The plaintiff’s evidence that the sling aggravated his skin condition was not borne out in the Thompson Road Clinic notes as he was no longer wearing the sling when attending the centre for treatment of his skin condition.
[47] DCB 15-88
[48] T61, L16-21
[49] T33, L7-9
36Conversely, counsel for the plaintiff submitted that the plaintiff was a witness of truth who answered questions truthfully, even where they could have undermined his case. It was contended he did his best to be completely honest and the Court should accept his evidence as reliable, honest and credible.
37The plaintiff was uneducated and unsophisticated who had had a difficult upbringing and it was hardly surprising that he gave evidence in a very basic and sometimes confused and unsophisticated manner.[50] He gave an honest account of his injury, not only in his affidavits but also in his cross-examination by Senior Counsel. The cross-examination was very intimidating to an uneducated young man like the plaintiff.[51]
[50] T67, L12-16
[51] T67, L19-21
38As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[52]
“... 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.”
[52] (2010) 31 VR 1
39The plaintiff impressed me as a witness of truth. He is a young man of very limited education, and he was utterly guileless in giving his evidence, doing his best to answer questions put to him. It was clear to me that the plaintiff found giving evidence a daunting experience and Senior Counsel’s sustained cross-examination only served to highlight this.
40The defendant sought to challenge the plaintiff’s evidence that he told a doctor at the Thompson Road Clinic about his transport accident; however, the plaintiff was certain that he told the doctor about the car accident when he first saw him after the accident “because I was still in my sling”[53] and “Yes. I remember telling him.”[54]
[53] T28, 3
[54] T28, L31
41The plaintiff’s first attendance at the Thompson Road Clinic after his transport accident was on 30 March 2016. The complete notes of the attendance were put to the plaintiff as follows: “Lost his voice since last Wednesday. Cough mild now and then. No fever, sore throat.”[55] It was put to him that the doctor performed an examination and “prescribed something called Alocon (sic) which is presumably some form of antibacterial for this sore throat”[56]. The plaintiff was in fact prescribed Elocon at that consultation. Elocon is not “some form of antibacterial” to treat a sore throat but a medication which the plaintiff was prescribed on other occasions for treatment of his skin conditions.[57]
[55] DCB 59
[56] T28, L15-17
[57]Thompson Road Clinic notes dated 19 February 2014, 10 November 2008, 13 September 2008, 2 July 2008, 24 May 2006, 17 May 2006 and 5 April 2006
42The significance of the prescription of Elocon at that consultation is twofold: First, the clinical note of 30 March 2016 makes no mention of any discussion regarding any skin condition and yet the doctor prescribed medication to treat such a condition. It can be inferred that matters were discussed at the consultation that were not documented by the doctor. Second, it is consistent with the plaintiff’s evidence that he attended the practice when in a sling and that the sling had aggravated the skin condition. The plaintiff gave an estimate that he wore the sling for six weeks post his car accident,[58] and the attendance on 30 March 2016 is around the time he was still being treated as an outpatient at The Alfred hospital,[59] as well as undergoing radiological investigations on 10 March 2016 and 16 June 2016. It is obvious that he was still receiving treatment at The Alfred hospital at the time he was attending the doctor and I accept his evidence that he told his doctor of the injuries on that occasion.
[58] T31, L7
[59] Plaintiff’s affidavit sworn 29 March 2019 at paragraph 13, PCB 5
43The defendant cross-examined the plaintiff on whether he mentioned to the doctor at Thompson Road Clinic anything about his left shoulder injury at the consultation on 12 April 2017 as the clinical notes record that he attended Dr Patil for his skin condition.[60] It was put to him that he was not complaining about his left shoulder but the eczema and Darier’s condition on his neck. The plaintiff’s evidence was that the only reason he had an attack was because he was wearing a sling for his shoulder condition. When it was put to him that this was sixteen months after he had finished wearing the sling, he readily conceded that the use of the sling would not be the reason he was attending the doctor for eczema in April 2017. Senior Counsel’s cross-examination in respect of the clinical note dated 30 March 2016 and the suggestion that he had only been prescribed some form of antibacterial on that occasion, likely caused the plaintiff to conflate his attendance on 30 March 2016 with that on 12 April 2017. His frank concession to the Court that it could not have been the sling that caused him to be seeing the doctor with eczema in April 2017, further enhanced his credit.
[60] T30, L27-30
44In considering the clinical notes, it is useful to have regard to what the Court of Appeal said in Woolworths Ltd v Warfe:[61]
“… it is important to bear in mind the limitations which attend the reliance, by a court, on the records by medical practitioners, in their reports, of the histories and symptomatology described by plaintiffs to medical practitioners. Those histories are an important part of the information, upon which the medical practitioner forms a view as to matters such as the diagnosis and prognosis in relation to the plaintiff’s injuries. However, rarely, do the histories, contained in medical reports, purport to be a verbatim record of what the plaintiff has said to the medical practitioner on examination. … it is important to bear in mind the nature and purpose of the history, recorded by medical practitioners in their reports, and of the limitations on their accuracy which I have just described.”
[61] [2013] VSCA 22 at paragraph [112]
45There will be occasions when a plaintiff instructs that the notes do not accurately reflect what he or she told the doctor.
46This is such a case where the notes based on the plaintiff’s evidence do not accurately reflect what he told the doctor.
47The clinical record of the attendance on 30 March 2016 at the Thompson Road Clinic did not accurately reflect all that was discussed at the consultation, and I accept the plaintiff’s evidence that he told the doctor of his left shoulder condition on that occasion.
48The plaintiff maintained at the outset in his cross-examination that he saw “probably two or three”[62] doctors at the Thompson Road Clinic for the shoulder injury, although it was put to him that neither doctor recorded any conversation about the left shoulder. He said that he attended regularly on Dr Jihong, a new doctor whose name he could not remember, and Dr Jim Kourdoulos.
[62] T15, L9
49When the plaintiff was asked to accept that the medical centre notes of the consultations only referred to the left shoulder once, he expressed surprise and said “So, that’s the only report?”.[63]
[63] T22, L2
50Given the brevity of the notes in relation to many of the attendances and that on 30 March 2016, being an important date as it was the first attendance post accident, the clinical note did not accurately reflect all matters discussed,[64] I also accept his evidence that he did tell either “Dr Jim or Dr Jihong”[65] at the practice.
[64] DCB 59
[65] T22, L11
51It is also apparent from a reading of the notes that he saw a number of other doctors at the practice over the years. In that regard, I see no conflict in his evidence that he was regularly treated by two or three doctors, but he saw multiple doctors over time and that he would have mentioned his shoulder complaint to them. In relation to his attendance with Dr Ljubica Raic-Uzelac on 4 May 2017, this was the first occasion he was seen by her and she did not have the benefit of having an established patient-doctor relationship with him when she examined him.[66] In response to her refusal to give him a certificate to cover him for work, the plaintiff candidly conceded that he thought she did not believe him that he was in pain and just did not want to give him a certificate.
[66] T52, L7
52The plaintiff was largely consistent regarding his use of medication in his affidavits and his viva voce evidence. When repeatedly pressed about his medication consumption, he said that he was told by his doctor that not much more could be done for him, that he had sought a script for Panadeine Forte but was told to take the normal standard Panadol. In addition, he was under financial pressure, which prevented him from asking for stronger prescription drugs. The defendant’s Senior Counsel put to him that he would seek prescription drugs when he had a condition that required it and he agreed, subject to his ability to pay, otherwise, if he did not have the money, he would suffer. It is apparent from the Thompson Road Clinic notes that there were occasions when he was prescribed medication for unrelated conditions and he was unable to fulfill the prescriptions[67] and on at least one occasion, due to the cost involved[68].
[67] See attendances on 18 January 2018 and 23 January 2018: PCB 44 and 15 May 2017 and 18 May 2017: PCB 52 and 53
[68] See attendances on 15 May 2017 and 18 May 2017: PCB 52 and 53
53In his evidence, he said that he might resort to using Panadeine Forte prescribed for other conditions, if he had any left over for his left shoulder condition. I do not accept that as a recent fabrication but rather, it is entirely consistent with his evidence that he was not actually being prescribed the Panadeine Forte for the left shoulder.
54He did not pursue physiotherapy as he was told that he had to pay. Although it was put to him that he had an accepted TAC claim, he explained that at that stage, he did not have a lawyer representing him. As I have already stated, the plaintiff impressed me as someone who is unsophisticated and was poorly educated. He also struck me as a young man lacking in confidence and as someone who was unable to advocate for himself. For instance, although a young adult, he still attended medical appointments with his mother[69] and he accepted the advice that nothing more could be done for him without question and that over-the-counter medication was sufficient to manage his pain. I accept that he had attended the Thompson Road Clinic since childhood and it was a bulk billing practice, so he did not seek another opinion.
[69] T36,L27 and PCB 29
55A comparison of Mr Miller’s examination findings also, in my view, point to the plaintiff being truthful and an honest historian.
56On 11 May 2018, Mr Miller’s findings were as follows:
Abduction 130 degrees
Forward elevation 130 degrees
External rotation 40 degrees
Internal rotation 40 degrees.
57On 5 November 2021, they were:
Abduction 120 degrees
Forward elevation 120 degrees
External rotation 40 degrees
Internal rotation 40 degrees.
58Although measurements of restricted motion are subjective observations, the clinical examinations performed two-and-a-half years apart are remarkably similar. Moreover, the plaintiff reported in November 2021 that he was slightly worse than in May 2018. Consistent with such a report, his range of motion with respect to abduction and forward elevation were each 10 degrees less. These examination findings reinforce my view that the plaintiff is genuine in his complaints and his restrictions.
59Nevertheless, just because I accept that the plaintiff is honest and credible, does not mean that I must uncritically accept his stated levels of pain and disability. I am required to assess all of the evidence.
Consequences
60The plaintiff, by virtue of his age, will bear the consequence of his pain for the rest of his life.
61His performance at school was such that it was clear that he would have to rely on his physical skills and capabilities to earn a living, rather than on his limited academic ability.
62I accept the evidence of Mr Miller that capacity for work from the point of view of the left shoulder was compromised and that the plaintiff would have difficulty with work involving large amounts of repetitive left arm actions, use of the left arm in the above shoulder position for extended periods and lifting weights of more than 10 kilograms.[70]
[70] PCB 45
63In this regard, I prefer Mr Miller’s opinion to that of Dr Menz.
64Dr Menz provides no explanation as to why he did not accept the plaintiff’s complaint of pain. There was no explanation as to why he did not accept the plaintiff’s report that his “shoulder pain is 6/10 today”, other than to say that was not the impression he had. I am unable to discern the basis for his belief that the plaintiff has very little pain and normal function of the shoulder. Moreover, he is incorrect when he comments that the last radiological investigations were on 16 May 2016 and he does not comment on the x-rays taken on 11 May 2018 which confirm the resection arthroplasty of the outer end of the clavicle, despite being provided with a copy of the report. In terms of work capacity, he believed the plaintiff “could undertake most work duties offered” and whilst he noted that the plaintiff has worked in picking and fencing, there was no analysis of the types of duties that were no longer open to the plaintiff.
65The loss of ability to undertake work is relevant to assessing pain and suffering consequences.
66In Abbas v Transport Accident Commission,[71] the Court of Appeal said, at paragraph 37:
“… a pecuniary disadvantage is not to be overlooked, in applications of this kind, merely because what would be assessable as the loss of earning capacity over an applicant’s life, is not presently productive of actual loss of income at the time of the application. The fact that there may be no actual pecuniary loss to the time of the application does not mean that a loss that may occur in the future, by reason of the relevant injury limiting an applicant’s capacity for certain jobs, should not be properly considered as a relevant pecuniary disadvantage. To dismiss the issue of pecuniary disadvantage by reference to the fact that the applicant’s income had increased in each year between 2010 and 2012, was to disregard the totality of the applicant’s circumstances and, in the circumstances of this case, constituted specific error on the part of the judge. The fact that the applicant might always be able to find and hold down employment notwithstanding his injuries does not preclude proper consideration of the issue of pecuniary disadvantage caused by a real limitation that has been imposed upon the applicant in respect of other employments for which has demonstrated suitability.”
and at paragraph 39:
“… In this case, the applicant was entitled to have his application considered by reference to the consequences that related to both pecuniary disadvantage and pain and suffering. If the consequences of the applicant’s injury that relate to pecuniary disadvantage and pain and suffering are such that, when his injury is judged by comparison to other cases in the range of possible impairments or losses, it can be fairly described as at least ‘very considerable’, then the applicant is entitled to succeed.”
[71] [2015] VSCA 217
67I accept the plaintiff’s evidence that the left shoulder condition has affected his ability to secure work and that although he has been able to obtain sporadic work as a picker and packer and labourer which involved some heavy lifting, he struggled with the physical duties, particularly the lifting due to his left shoulder.
68Whilst the plaintiff has had limited treatment, he has received advice that there is no further treatment indicated. I do not consider the absence of ongoing treatment and his medication intake to be inconsistent with ongoing pain and restriction. Moreover, Mr Miller, in accepting that the plaintiff had suffered a permanent injury which impacted adversely on his capacity to undertake a full range of duties, did so on the reported history of no active treatment, limited medication intake of Panadol and no physiotherapy.[72] For the defendant to submit that these factors point to the lack of seriousness of the consequences is not consistent with expert opinion that it initially commissioned.
[72] PCB 52
69The plaintiff was not challenged with respect to his ability to engage in domestic, social, recreational and other daily activities. I therefore accept that there have been serious consequences to his ability to engage in domestic, social, recreational and other daily activities. His ability to undertake domestic chores such as vacuuming, mowing the lawn and gardening, is inhibited by pain. Daily activities which require overhead or behind back movements such as toileting, washing his hair or putting on a jumper are painful to him. He cannot enjoy kicking the footy with his half siblings in the park like he used to, as marking the ball overhead is painful. He is unable to enjoy trailbike riding with his mates, hit golf balls at the driving range or tinker with cars. I accept that his sleep is affected. I accept the evidence of Mrs Bell, the plaintiff’s mother, which corroborates the plaintiff’s complaints with respect to restrictions with lifting activities, sleeping, and ability to perform domestic tasks.
70Having considered all the evidence overall, I am satisfied that the plaintiff’s left shoulder injury sustained in November 2015 has produced loss of earning capacity consequences which are more than “significant or marked” and at least “very considerable”. Moreover, the consequences of his injury are serious to him and when assessed objectively, meet the requisite statutory test when compared with the range of comparable cases.
71Leave is granted to the plaintiff to commence proceedings for damages in respect of injuries suffered as a consequence of the transport accident on 26 November 2015.
72I will hear argument with respect to costs.
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