Bennett v Transport Accident Commission
[2022] VCC 1782
| IN THE COUNTY COURT OF VICTORIA AT Warrnambool COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-21-00793
| LINDA LOISE BENNETT | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION (ABN 22 033 947 623) | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 26 and 27 September 2022 | |
DATE OF JUDGMENT: | 17 November 2022 | |
CASE MAY BE CITED AS: | Bennett v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1782 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – right upper limb impairment – somatoform pain disorder – psychiatric impairment – aggravation – credit
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Richards & Anor v Wylie (2000) 1 VR 79; Humphries and Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Transport Accident Commission v Kamel [2011] VSCA 110; Transport Accident Commission vKatanas [2017] 161 CLR 550; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Hunter v Transport Accident Commission [2005] VSCA 1
Judgment:Application pursuant to clause (a) is dismissed. Leave granted in relation to clause (c) application.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett KC with Mr G Pierorazio | Stringer Clark |
| For the Defendant | Mr P D Elliott KC with Mr T Storey | Solicitor to the Transport Accident Commission |
HER HONOUR:
1This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 2 December 2015 (“the said date”).
2Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3This application was brought pursuant to clause (a) in relation to a right upper limb impairment and also clause (c) – “severe long term mental or severe long term behavioural disturbance or disorder”.
4The enquiry under clause (a) focusses attention first upon whether the injury has produced an organic impairment or loss of body function and then, by reference to the consequences of that impairment, whether it is serious and long term.
5The serious injury defined by clause (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function.[1]
[1]Richards & Anor v Wylie (2000) 1 VR 79
6In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as “at least very considerable” and “more than significant” or “marked.”[2]
[2] See Humphries and Anor v Poljak [1992] 2 VR 129 at 140-141
7The word “severe” in the clause (c) is of stronger force than the word “serious.”[3]
[3]Mobilio v Balliotis (1998) 3 VR 833 at 846; Winneke P agreed at 833
8The plaintiff swore two affidavits and relied on affidavits sworn by her partner, Darren Wittingslow, and her daughter, Alannah Surrey, sworn on 21 September 2022.
9The plaintiff was cross-examined. Both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
10Counsel for the plaintiff submitted it should be accepted the plaintiff had a genuine problem and that she cannot use her right arm, whether it is psychiatrically or physically based.[4]
[4]Transcript (“T”) 90
11From the defendant’s perspective, this was an aggravation case where any physical impairment was not organically based and any psychiatric impairment was not severe.[5]
[5]T71
The Plaintiff’s affidavit evidence
12The plaintiff is presently aged forty-eight, having been born in September 1974. She is right handed. She has been in receipt of Jobseeker payments since TAC loss of earnings benefits ceased in December 2018.
13When she swore her first affidavit in October 2018, she was living in a rental property with her then partner, Michael.
14The plaintiff did not manage to complete Year 12. She then worked as a strapper, in petrol stations, factories and the hospitality industry, including five years as a waitress.
15In about 2011/2012, she commenced work at Mercy Health in Warrnambool (“Mercy”), which runs an aged care facility. She worked as a food services assistant, contracted to work 27.5 hours per week, but often worked up to 40 hours. On average, she was clearing about $700 a week.
16As at the said date, she was doing some management work at Mercy as the kitchen manager had left, but otherwise she was working as a food services attendant.[6]
[6]T10
Pre-accident health
17Before the said date, the plaintiff had some neck pain, but it was different to the pain which she went on to experience thereafter.
18The plaintiff was attending Jamieson Medical Clinic (“Jamieson”), and generally was being prescribed Panadeine Forte, and had also taken Endone for a period. In October 2014, Dr Oliver organised a cervical MRI scan, which revealed minor multilevel disc degenerative changes.
19Neck pain had started when the plaintiff was assaulted at a taxi rank in Warrnambool in October 2010. While she was waiting for a taxi, she was attacked by a number of men and king hit, falling and hitting the pavement. From then on, she suffered from more headaches and neck pain, and her neck flared-up with activity. Panadeine Forte was prescribed for ongoing neck pain in 2012 and 2013.[7]
[7]T49
20She also hurt her right knee at work in December 2014, when she slipped on a wet floor. She lodged a WorkCover claim and had some time off work, before returning on modified and, eventually, normal duties. Her right knee came good, although there were some ongoing symptoms.[8]
[8] Plaintiff’s first affidavit sworn 12 October 2018
21In January 2015, she saw Mr Arogundade, orthopaedic surgeon, for her right knee. He gave her a knee brace and did not mention surgery. She was taking Panadeine Forte as at the said date for her knee and agreed she had been regularly taking it since 2011.[9]
[9]T11
22She complained to her general practitioner of knee pain and neck pain in 2014. She agreed she had significant neck and knee problems for a number of years before the said date. Her knee now flares up every now and again, but her neck and knee were not causing her problems at work before the said date.[10]
[10]T51
The accident
23On the said date, at about 5.00pm, the plaintiff was travelling along the Princes Highway, Warrnambool and waiting to turn right across the highway. Her vehicle was then struck from behind and shunted across the road, being hit with a fair amount of force (“the accident”). Police were called, but did not attend the scene.
24The following day, she saw Dr Hughes at Jamieson as she was experiencing increased pain in her neck, particularly on the right side. Not long after this, she also experienced pain in the right shoulder and shoulder blade. She had an x-ray of her neck on 3 December 2015 and an MRI scan on 7 December 2015.
25She gave a different account in her viva voce evidence of the sequence of her treatment immediately after the accident, saying she went to Warrnambool Base Hospital the night of the accident. A brace was applied, and x-rays were taken. At that stage, she was “just getting massive headaches and stiffness in [her] neck, shoulder and back”. That was the situation within a 24-hour period. She saw her doctor at Jamieson the next day. He organised physiotherapy, medication and more x-rays.[11]
[11]T9
Work post accident
26The plaintiff had some time off work after the accident, but managed to get back to work in early 2016, on light duties and reduced hours, sometimes four hours a day, three days a week. Her job involved tasks like daily rosters, wages and auditing. However, after a few weeks, she could no longer cope with these light tasks because of ongoing pain in her right shoulder, her shoulder blade and neck, as well as back spasms.[12]
[12]T11
27On her return to work post the accident, she was not doing anything physical. She was not given any lifting tasks because she had tremors, and when she was in pain, she shook. She could not sit or stand for too long. She agreed that she was not required to maintain prolonged postures while carrying out those light duties. Due to the pain, she still could not do these light duties.[13]
[13] T12
28While the June 2017 TAC vocational assessment[14] set out the plaintiff stopped work after she had an adverse reaction to medication, that was not why she stopped work. She stopped because of pain. She told the assessor about the inflammation and the “swollenness”. She had a reaction to the tablets, which caused a lot of weight gain and fluid retention. That did not have anything to do with her stopping work. It was more pain. She could not remember if she told “the lady” the medication was why she left. Pain prevented her from working.[15]
[14] Reported of Lauren Cameron dated 13 June 2017
[15]T38
29Mercy eventually wanted her to go back to do a proper job which she could not do and knew she could not do. She had pain all the time in her shoulder and neck.[16]
[16]T13
30The plaintiff’s employment with Mercy was formally terminated in mid 2017, as she was unable to return to normal duties. She enjoyed her work immensely, particularly working with the elderly and interacting with them. She had now been deprived of that because of her injuries.
31On her brief return to work, she was seeing physiotherapist, Toby Pettigrew. He gave her “slight” exercises and tried to get her to swing her arm. He did not try to move her arm, but he tried to encourage her to do so, and she was able to do so “slightly”. He wanted her to move her arm up, but she could not lift it up. She was able to raise her arm just above her thigh as she was sitting in the witness box.[17]
[17]T16
32She continued on Panadeine Forte but then needed stronger medication and she was prescribed Endone, Valium and MS Contin. That was not enough for her to continue working, and this medication had no effect on her at all – “maybe a slight effect, but not where she could do anything where [she] was comfortable”.[18]
[18]T14
33She was referred for a shoulder MRI scan, which was performed in February 2016. It showed subdeltoid bursitis. She was given a sling by a doctor at Jamieson a couple of months after the accident.[19]
[19]T12
34She was referred to a pain physician, Dr Grave, whom she saw in March 2016. He prescribed Endep. He told her she would benefit from early engagement in pain management. Initially, she saw Dr Christina Manu at St John of God Hospital in Warrnambool, and now is with Dr Bassett at St John of God Hospital in Ballarat.[20]
[20]T19
35She did not complete the initial pain management course “because it was just hurting too much”. It was making her “sorer and making everything flare up”. She tried hydrotherapy, supervised by a physiotherapist at AquaZone, for a few months. She had less pain when she was in the water, but not to the extent that she could move her arm at all.[21]
[21]T18
36She agreed that Dr Grave told her the MRI scan of her neck had shown up no significant problems. She still knows that, “but that still does not explain [her] pain”.[22]
[22]T15
37She could remember Dr Grave telling her about the effects of her not moving her arm, and that problems could be avoided if she attempted to move it. He was encouraging her to move her arm because he thought it was detrimental to her health not to do so.[23]
[23]T18
38When she was seeing Dr Grave, she was wanting to get back to work, and he told her she should continue to work so long as it was not manually onerous. However, she flared up her pain just from not particularly doing anything. There was pain all the time, even when she was not using her arm at all.[24]
[24]T24
39At about the same time, she noticed weight gain due to her medications, in particular, Lyrica. She saw a consultant physician, Dr Anna Clissold, for this issue, four times in 2017, and her advice was to reduce the Lyrica. She was also referred to another pain physician, Dr Terence Lim, whom she saw in May 2017, and he recommended she cease Lyrica, which she did.
40She saw pain specialist, Dr Michael Bassett, about five or six times in 2018. She then saw Dr Manu again, who recommended a ketamine infusion; however, having the possible side effects explained, and that there was no guarantee the infusion would work, the plaintiff was not keen to have it at that stage.
41As at October 2018,[25] she continued to suffer ongoing pain in her right shoulder, radiating into the shoulder blade and neck. She also had some pain in her neck down into her middle back, accompanied by spasm. She had reduced range of right arm movement and, in particular, if she lifted her right arm up, her shoulder joint felt as if it was pulling right across.
[25]First affidavit sworn on 12 October 2018
42She had difficulty sleeping because of pain in her right shoulder and often woke during the night with pain.
43Because of her medication and reduced activity, her weight had increased from 57 to 91 kilograms, but, at that stage, she had been able to get back to 72 kilograms, although she was still overweight. She thought that, in part, contributed to her relationship difficulties with Michael, although they had reunited at that stage.
44She was seeing Dr Hughes once or twice a month, who was certifying her unfit for all work. She was then waiting to see a psychiatrist, Dr Sacks, for anxiety and depression arising out of her injuries, although he had a long waiting list, and she was yet to see him.
45She was then taking 10 milligrams of OxyContin in the morning and 20 milligrams at night. She was taking Panadeine Forte, six to eight a day, alternating with Panadeine Extra. She also took Pristiq, 150 milligrams a day, to help with anxiety and depression. From time to time, she also took Valium, although she tried not to rely on it, because she felt she could not function when taking it. She regularly applied heat bags and icepacks to the affected areas and relied on a rub, like Deep Heat.
46In addition to being restricted in her return to work, her injuries affected her in many other ways.
47She had difficulty driving for long periods and had to stop regularly and get out of the car and stretch and, more often than not, stayed overnight before attempting the trip home from Ballarat. Sometimes she simply caught the bus there.
48She had difficulty interacting with her young grandchildren.
49Prior to the accident, she enjoyed playing darts competitively two nights a week and was captain of the local team. This was her time out. She had not been able to return to that activity since the accident because of pain and restriction in her right shoulder and neck.
50She also used to enjoy horse riding and had been riding since a kid, and used to ride track work. She rode horses at places like Rundles Horse Riding School and in Ballarat on her aunt’s property. On average, she rode once a month or so, but had not attempted riding since the accident, and there was no way she would be able to hold onto a horse, let alone ride one.
51She was restricted around the home and needed Michael’s help with lifting heavy cooking utensils. He put items in lower cupboards so she did not have to reach for them. She purchased a swivel sweeper which she used in her left hand. She could only use an upright vacuum cleaner for about 10 minutes until her shoulder and neck pain increased. More often than not, Michael did the heavy bathroom cleaning and changed the sheets. She could do the clothes washing but more often than not, he had to peg the clothes out.
52She had difficulty with weeding and digging. She had difficulty lifting heavy shopping bags in her right arm, and avoided doing so.
53She had difficulty with personal tasks such as doing her hair, and often got Michael to help put her hair in a ponytail. She found it difficult to put on pullovers and, more often than not, tended to wear zip-up tops. She tended to do up her bra from the front or get help from Michael.
54The plaintiff swore a further affidavit in January 2022. Not long after October 2018, her relationship with Michael ended and she subsequently met Darren, whom she had been with for about three years.
55She saw Mr Paul Plank, orthopaedic surgeon, in about mid 2019 and about two months later, he went on to operate on her right shoulder, performing an arthroscopy, hydrodilatation and manipulation under anaesthetic. The procedure did not help with the pain and restricted movement.[26]
[26]T26
56In December 2019, she had a second nerve block, although she could not remember when the earlier one was.
57On 2 March 2020, she had a ketamine injection, the procedure lasting ten days. The main benefit was that she was able to reduce her OxyContin dosage, which she had then been on for a long time. Prior to the infusion, she was on 80 milligrams: one in the morning and one at night. She had managed to reduce this to 40 milligrams on the same basis; however, she continued to take Endone two to three times a day and Panadeine Forte as needed, sometimes up to three to four a day.[27]
[27]Plaintiff’s second affidavit sworn 28 January 2022
58After the infusion, she tried to perform some home exercises, although that was not easy, as her shoulder really hurt when she moved it and, generally, when that happened, she put her right arm in a sling. She is still doing exercises at home to move her arm but they are not helping.[28]
[28]T29
59As at January 2022, she continued to take antidepressants. She came off Pristiq, which she had previously taken, because of the side effects in the form of weight gain, and was taking Duloxetine daily. She also still applied heat packs on her right shoulder and Deep Heat spray.
60Before the accident, no doctor had spoken to her about addiction. Afterwards, they had told her the tablets she was taking were very addictive and that she should cut down. In March this year, she had got down to 15 milligrams of OxyContin and two tablets of Panadeine Forte, but she then asked for an increase in OxyContin to 20 milligrams. She stayed on 15 milligrams but has recently reduced down to 10 milligrams.[29] She denied being addicted to medication.[30]
[29]T28
[30]T52
61She now takes four to six Panadeine Forte a day and has taken up to eight. That was the recommended total before it became unsafe. The OxyContin makes her feel sick. Endone made her feel sick and she stopped taking it. She had trialled a cream but it did not work, so it was ceased.[31]
[31]T28
62The drugs make a little bit of difference but not much. She has tried to wean off them and then ended up going back on them because the pain was too much.[32]
[32]T14
63One of the reasons she went to pain management was really to cut down on her drugs, and the other was because she had pain and wanted help with it.[33]
[33]T29
64After Dr Manu left, she resumed seeing Dr Bassett, but not in a formal pain management course. Due to the Pandemic, she had only seen him once since March 2021 and an appointment had been made for March 2022.[34]
[34]Dr Bassett’s report dated 17 March 2022 – attendance that day – injection booked for the following week
65Dr Bassett gets her to do little exercises with her arm to try and get it moving again, and he suggested injections. She agreed that he told her she could do more with her arm without doing any fundamental damage. She did the exercises he suggested but they did not help her. These involved small circular motions with her arm, increasing to bigger and bigger ones. She tried to do them, but they did not help her.[35]
[35]T22
66The pain management course and the hydrotherapy have not helped her nor has the physiotherapy. Her second bout of physiotherapy made her worse.[36]
[36]T22
67Her arm is not in a sling all the time, but it is more comfortable if it is. She wears it when travelling long distances if her arm is sore, or if she is bouncing around. She can move her hand a bit from her elbow down. She took her sling off in the witness box. She moved her right arm up towards her neck “– it was [her] shoulder she had trouble with”.[37]
[37]T8
68As at January 2020, her general practitioner, Dr Smollo, based in Portland, was certifying her as unfit for all work and trying to get her on the disability pension, although she was not very happy about that, given her age. Since moving to Koondrook, she is under the care of Dr Anusha at Ochre Medical Clinic, Barham. Dr Anusha wants her to see a psychologist or psychiatrist but there is a long waiting list.[38]
[38]T69
Work
69The plaintiff had not been able to get back to any work and does not believe she is fit for any work to which she is suited.
70Working as a car rental officer and bookkeeper were suggested by a vocational assessor.[39] The plaintiff ultimately agreed that she believed the roles would be physically suitable for her. She then qualified her answer by saying that the jobs would suit her if she was to get back to work.[40]
[39]TAC Vocational Report dated 13 June 2017
[40]T39
71She agreed that she told “the lady” that she thought she was suitable for the car rental officer, as the vocational documents confirmed, and she was willing to give bookkeeping a go and pursue training. She had not done so because she just had not been fit enough to. She agreed she made enquiries of family members with small businesses, who have always said she was welcome to work for them. She could not do work now for her family because she did not think they would have her because she cannot do anything because her right arm does not work.
72She told the assessor “car rental officer sounds alright if I ever get back to work, and so does bookkeeping”. She understood that to be her ambitions if she got better.[41]
[41]T41
73She cannot remember these jobs ever being brought up with her general practitioner. She agreed she had signed the vocational form, confirming the jobs were suitable, but she “just was not up for working”. Her doctor had signed it. She could not honestly remember discussing it with him.[42]
[42]T43
74She later agreed that she and the doctor spoke about the suggested jobs. It was her understanding that “this was all about for when [she] was able to return to work in the future, when [she] was going back to work”.[43]
[43]T46
75The form also did set out that she could do the two suggested jobs, but with restrictions.[44]
[44]T68
76After the vocational assessment she did not take any steps to look for a job.[45]
[45]T52
77It was not her normal signature on the vocational form. Her signature is just a scribble now.[46]
[46]T67
Pain
78She continues to suffer from ongoing pain and restriction in her right shoulder and right side of her neck.
Activities
79A typical day involves watching television or reading magazines. Sometimes her daughter visits and sometimes she takes her out for a coffee. However, the plaintiff is missing out on a lot of stuff, such as going horse riding with her daughter, camping and fishing with her grandchildren. This upsets her no end.
80Prior to the accident, she was riding pretty regularly. The family had horses all their lives. She probably was not riding that much when she had her knee problem, but she was back riding after her knee settled. She agreed her knee pain had not gone away, not totally, not 100 per cent, but it was nowhere near where it was.[47]
[47] T63-4
81She gave the horse she owned to her daughter after the accident. She had ridden it prior to the accident with her bad knee and neck. She used to go on trail rides for four hours or so, the last being maybe two to three months before the accident.[48]
[48]T64
82She confirmed her knee did get better, although it flared-up every now and again, and that has been the situation throughout. After the initial knee injury, she went back to horse riding and her knee then flared-up again.[49]
[49]T65
Fishing/Facebook
83In April 2021, she posted a number of photographs of a river and an upright fishing reel, together with a photograph of fish held in someone’s hand. She was then with Darren and her post read “Ahhhh nothing simply beats sitting on the river fishing and having a few beers. Loving it.”
84There was then an exchange on Facebook between the plaintiff and Jack Moss, who is “like a second cousin” to her. After he posted “a nice little bream go catch dad now,” the plaintiff responded “tried … he must be hiding … Will give it another go tomorrow. Only just little bait suckers around.”
85The photograph was taken at Hopkins Caravan Park at Cambourne. The plaintiff was sitting there having a beer. Darren was fishing. He had the grandkids over. They all went fishing. She did not catch anything because she was not fishing. She was not holding the fish in the photograph. She had tried fishing with her left hand and just got the line all tangled up and could not reel it in. She had not used it since.[50]
[50]T60
86She and Darren have been fishing twice in the last five or six years. They have probably had a couple of holidays to Cambourne and Horsham.[51]
[51]T63
87While she can go out with her grandchildren and others, she cannot have her grandchildren by herself because she cannot do things for them. In any event, they live four-and-a-half hours away.[52]
[52]T61
88She remains restricted in household activities, and Darren does most of the housework, although she can do light tasks. Generally, they tend to go shopping together, and Darren does all the heavy lifting. She is able to carry a very light bag and a handbag when shopping.[53] She can only pick up light things. She helps Darren with some cooking.[54]
[53]T58
[54]T8
89She remains restricted in her ability to drive and, more often than not, Darren does most of it. She generally tends to drive only around town if she has to see her doctor or go shopping, and, indeed, ended up selling the car as she was not using it much, and she drives Darren’s vehicle if she needs to go out.
90She drives with her left hand, with her right hand resting on the bottom of the steering wheel. Basically, for around twenty to thirty minutes she can drive and then she gets out and walks around. She drives to the supermarket and to her doctors’ appointments.[55]
[55]T24
91She remains overweight, currently at 62 to 65 kilograms. While she goes for walks, it is not a long distance, generally involving a 400-metre walk to the shops.
Immobility and the tremor
92Her whole body tremors when she is in pain – “well, the top half of [her]”. She did not think her shoulder started shaking, it was basically just her hands. If her shoulder was shaking, it would cause pain. She was not too sure if the middle of her back started shaking. The shaking lasts until the pain settles down.[56] Sometimes it goes for hours, sometimes for a couple of minutes. It hurts when she is shaking. She can stop it by “basically lying down, changing positions, relaxing”.[57]
[56]T30
[57] T31
93She stops the tremor by basically lying down and changing positions and relaxing. When she was being medically examined, she started shaking. The shaking started pretty much straight away after the accident. She is not getting any treatment for it. “They” had her on Valium but she is not taking it. She has not been referred to a neurologist.[58]
[58]T31
94She agreed that it was possible while she was getting dressed following a medical examination that she was not shaking. A tremor happened probably when she was trying to lift her arm or raising it when being examined.[59]
[59]T33
Surveillance film – 6 minutes on 22 March 2022
95The plaintiff was filmed sitting in the front of the tow truck owned Darren at a service station in Deniliquin. Sometimes, she accompanies him on his work trips but she does not do anything of a manual nature. If Darren is going on a long trip, she goes with him because she cannot do things at home.[60]
[60]T7
96When she gave instructions for her affidavit in October 2021, Darren did not have the tow truck.[61]
[61]T7
97They had travelled from Koondrook, which is on the Murray halfway between Echuca and Swan Hill. She was not wearing a sling when filmed. She had a foam cushion on which she sat her arm. When she crossed the road to go to Darren’s cousin’s house, she was not wearing the sling.
98She does not always wear the sling. If she is sitting down, she can have her arm on a cushion. If her arm is sore, she will put on the sling. She disagreed that sometimes her arm is not sore. It is sore, but not to the point where it needs a sling. On those days, she cannot use her shoulder at all.[62]
[62]T57
99She was wearing a sling in the witness box because her arm was still sore after 5 hours of travelling in the car the previous day.[63]
[63]T58
100She was filmed carrying a coffee cup in her left hand. She was not aware she was being filmed. She saw herself reach across to get something on the dashboard of the truck using her left hand, and Darren assisted her, leaning across from where he was sitting. She did not use her right hand.[64]
[64]T66
Lay evidence
Darren Wittingslow
101Darren swore an affidavit on 21 September 2022.
102He has known the plaintiff for about fifteen years, meeting her through mutual friends. They dated and lived together from about 2008 to 2013. After a break in their relationship, they reconnected in 2018, after her injury.
103In 2018, they had lunch and he thought it was odd when she asked him whether he could cut up her meal, and she told him that a pot of Coca-Cola was too heavy for her to carry. They started living together again in about 2019.
104Pre accident, the plaintiff played netball and darts, enjoyed horse riding and fishing, and also owned horses and goldfish. Post-accident, she had not been active or participated in recreational activities, and there had been a big change in her mood because she could no longer do these things.
105Post-accident, he completes all household tasks, as she struggles to lift her arm. He does 100 per cent of the cooking. She has struggled with self-care and management post accident.
106Pre accident, the plaintiff was generally a happy, independent, and confident person, loving her job and hobbies, but since then, she has become frustrated she can no longer do the things she used to enjoy. He believed she now has trouble concentrating, and he bought her a diary to write appointment times.
107Post-accident, the plaintiff struggles to open big heavy glass doors. She is fearful of street violence, particularly at night. She does not drive normally. He drives her for appointments. She drives as a last resort.
108Pre accident, she was always happy to meet new people and was not afraid, but since then has been described by others as anti-social and does not go out for lunch with friends. They only attend family events rarely, whereas previously the plaintiff was very active with her family and grandchildren.
109Post-accident, the plaintiff has issues with sleeping. Pre accident, they had an active sexual life, but since then, it is near non-existent due to her low mood, pain, and low self-confidence.
110From his knowledge, she is currently taking OxyContin and Panadeine Forte. She sometimes uses a heat pack on her shoulder.
111She does not have a job and has no money to spend on herself. She is sick and tired of having no money and is frustrated with the situation. She feels like a caged animal, and it makes her frustrated that she is unable to do the things she used to enjoy.
112Pre-accident, she was happy and social and had confidence, and used to do everything for him. Post-accident, everything had been taken away from her, including her independence. He assessed her current quality of life as 0 to 1 out of 10.
Alannah Surrey
113The plaintiff’s daughter, Alannah Surrey, swore an affidavit on 21 September 2022.
114She saw the plaintiff nearly every day before she moved about six months earlier. She now speaks to her on the phone nearly every day.
115She confirmed the effect of the injury on the plaintiff’s mobility and driving ability, her difficulties with concentration, the change from a really social person, active with grandchildren, to now struggling in family activities, problems sleeping and a limited social life.
116The plaintiff never has money because she does not work. She appears pretty depressed and miserable.
Medical evidence
Treaters
Jamieson Medical Clinic, Dr Kantharajah
117The plaintiff presented to Jamieson on 3 December 2015 following the accident the previous day.
118In a June 2017 report, the general practitioner noted that since the accident, the plaintiff had been having persistent disabling right shoulder pain. MRI scans of the cervical and thoracic spine, along with the right shoulder, were all within normal limits. However, since the accident, she had been posturing her right upper limb with her elbow flexed and closed, adducted to the chest as with her shoulder.
119He noted the range of treatment undertaken to date.
120In his view, the plaintiff’s condition was much the same as what it was when the accident first happened. The pain had now become a chronic issue.
121He was unable to comment on her prognosis, but pain specialist, Dr Lim, in a recent letter, advised he was doubtful whether the plaintiff would ever gain normal right shoulder range of motion/function. Dr Lim did feel, however, that the plaintiff could improve her pain control and right shoulder function to a point where she could return to some form of work.
122Dr Kantharajah thought ongoing treatment would be analgesia, physiotherapy, and review by Dr Sacks, pain psychiatrist, as Dr Lim suggested.
123The effect of injuries on recreational and sporting activities was limited by the plaintiff’s poor range of movement in her right shoulder. In addition, while she had a capacity for employment, it would be in a job where her role would not involve excessive use of her right arm.
124Dr Hughes at Jamieson reported in August 2018. At that stage, the diagnosis was Chronic Pain Syndrome. The plaintiff was then awaiting a ketamine infusion.
125Dr Hughes thought the right shoulder/neck pain had enormous negative effects for the plaintiff’s working and domestic life.
Dr Grave, musculoskeletal physician
126The plaintiff saw Dr Grave, on 1 March 2016 on referral from Dr Manu.
127The plaintiff was then working three hours a day on Mondays, Wednesdays and Fridays, and was keen to resume work.
128On examination, the plaintiff had quite marked pain behaviours. She had an elevated right shoulder and was not abducting or moving her right upper limb to any great extent. She was nursing her right arm.
129He thought it concerning the plaintiff was not moving her arm and had explained the importance of this to her as a way of preventing Complex Regional Pain Syndrome, which he did not believe she then had.
130He explained the importance of re-establishing shoulder and arm movement as a way of preventing the development of Complex Regional Pain Syndrome. He did not believe the plaintiff had that condition then, noting there was no clinical evidence of discolouration in the right upper limb and temperature was normal.
131The plaintiff described intermittent pins and needles into the right upper limb and forearm region. She did not describe any autonomic phenomenon. However, there was concern that if she continued on with the restricted guarded movement that she would be at increased risk of developing Complex Regional Pain Syndrome. He commenced her on Amitriptyline, 10 milligrams at night, as a pain modifier.
132He advised her that she would benefit from early engagement in pain management and may benefit from mirror box imaging work to help her gain movement in the right upper limb. He also discussed simple home exercises to encourage mobility as well as hydrotherapy.
133He encouraged her, at that stage, to continue to work in tasks that were not manually onerous.
134The nature of her condition was that of Chronic Pain Syndrome with central sensitisation affecting the shoulder, neck, thoracic spine and thoracolumbar junction region pain, as well as right arm pain.
Dr Anna Clissold, Warrnambool Physicians Group
135The plaintiff first presented for treatment on 16 January 2017, mainly with regard to her increasing weight, which in the end was thought to be fluid overload as a side effect of her pain medication. Treatment provided was mainly to wean down her medications to the minimum possible dose.
136When last seen in March 2017, the plaintiff’s current condition improved in a way that her weight had progressively declined and her water retention showed some signs of resolution with lower doses of her pain relievers.
137The prognosis in relation to the plaintiff’s current symptoms (weight gain and symptoms around weight gain such as fatigue) would depend upon a few factors such as ongoing need for medications and the prognosis of her original problem, which was pain since her accident.
138The question whether there is any ongoing treatment required, and, if so, the nature of that treatment, would depend on the person managing her pain in relation to the accident. Dr Clissold could not offer further treatment for the plaintiff if her symptoms were related to the medications she needed.
Dr Terence Lim, pain specialist
139Dr Lim saw the plaintiff in May 2017 on referral from Jamieson for an assessment of her persistent and disabling right shoulder pain as a consequence of the accident.
140The cervical MRI scan of December 2015, the right shoulder MRI scan of February 2016, and thoracic MRI scan of December 2016 were all within normal limits.
141Since the accident, the plaintiff had been posturing her right upper limb and the position of pain when flexed and closely adducted to the chest, shoulder closely adducted to the chest and protracted anteriorly – the only problem was that the accident was at least a couple of years ago. Therefore, they were dealing with a chronic or persistent pain condition not acute (or nociceptive).
142With the advent of time and due to the evolution of her CNS pain pathways, the plaintiff would have become increasingly pain sensitised/central sensitisation. Once that was established, as in her case, there was unfortunately no cure for chronic pain.
143Dr Lim thought the plaintiff had developed a significant emotional reaction to the accident. There was somatisation which had now evolved into becoming persistent fear of her persistent pain, reinforcing her current chronic pain and physical disability. Somatisation can be defined as the physical reflection of a troubled mind. Therefore, if the plaintiff was to improve her prognosis, she first must improve her mental state, and therefore he had referred her to Dr Tobie Sacks, psychiatrist.
Mr Paul Plank, orthopaedic surgeon
144Mr Plank reported in October 2018 and May 2019. The plaintiff was referred to him by a pain specialist because of her ongoing pain and restriction of motion involving her right shoulder.
145He agreed the MRI scans did not show any significant structural abnormalities. That was very typical for a frozen shoulder, where it would be expected that the rotator cuff and glenohumeral joint would not show severe bone-on-bone arthritis.
146The diagnosis of a frozen shoulder was purely a clinical one, measuring the range of motion. The plaintiff’s range of motion was extremely limited in all directions, which met the definition of having a frozen shoulder.
147Mr Plank was more than happy to perform an examination under anaesthesia, and while the plaintiff was under anaesthesia, the best way to rule out any other pathology would be to arthroscopically examine her shoulder at the same time. If it then did not turn out that she had a frozen shoulder, a hydrodilatation and manipulation under anaesthetic could be performed.
148Hopefully that cleared up his rationale. The plaintiff certainly had had every other treatment option already performed, which had not helped, and they were running out of options to consider to help her out of her ongoing pain.
149Mr Plank wrote to the plaintiff’s solicitors in May 2019, supporting a request for funding from the TAC for a right shoulder arthroscopy, hydrodilatation and manipulation under anaesthetic.
Dr Christina Manu, pain specialist
150Dr Manu reported to Dr Hughes at Jamieson in August 2018, having seen the plaintiff earlier that month. She had last seen the plaintiff in 2016.
151They discussed ketamine-infusion benefits and she had given the plaintiff a printout for more details. They had also discussed chronic pain, including the definition, the difference with acute pain as a protector, body changes in body pain, role of medication, the biopsychosocial model of management and flare up management.
152She noted the plaintiff was more receptive than she had ever been before and it was very likely she was not ready for this discussion two years ago. The plaintiff was still looking for answers and solutions and Dr Manu hoped she would engage further in chronic pain management.
153She was happy to send a letter to the TAC for a week admission and ketamine infusion, but she hoped the plaintiff would engage in learning more about chronic pain and taking control in self-managing the pain. She planned to see the plaintiff again after the infusion.
154Dr Manu advised she was moving out of town and, unfortunately, would not be able to offer the plaintiff the infusion, or review her from thereon, and had told her of that, and to discuss the ketamine option in Ballarat with Dr Bassett.
Dr Michael Bassett, pain management specialist
155In February 2020, Dr Bassett advised Dr Bashour that he had seen the plaintiff prior to her upcoming ketamine infusion and aimed to significantly decrease her daily opioid use during her inpatient stay.
156On 25 March 2021, following review of the plaintiff, Dr Bassett wrote to Dr Manu, advising that the plaintiff continued to experience significant right-shoulder and cervical pain. He thought her pain may be originating from her cervical spine or acromioclavicular joint and had ordered an AC joint injection to investigate her pain further.
157The plaintiff agreed with him it was worth slowly weaning her opioids and he had given instructions for weaning her Endone use over the next three weeks, and would recommend weaning her Targin, 10 milligrams a month.
158He commenced a trial of her Gabapentin and Clonidine, for which he would have her response evaluated in his rooms in about a month. He was happy to support weekly pick up of her opioids, provided there were no issues with her increasing her use without guidance from a doctor.
159On 17 March 2022, having seen the plaintiff that day, Dr Bassett wrote to Dr Peiris in Kerang, and advised the plaintiff was due to have an AC joint injection the following week.
160He was pleased to hear the plaintiff had been able to significantly wean her opioids and was currently taking OxyContin, 15 milligrams bd and Panadeine Forte, two tablets, QIDprn.
161The plaintiff felt her pain and function were improved with OxyContin, 20 milligrams mane, and he was happy to support that dose. He provided her with Targin, 5/2.5 milligrams mane to add to her OxyContin, 15 milligrams mane to make up this dose.
162He would have her response to the acromioclavicular injection reviewed by Telehealth the following week. He suspected she would also need another hydrodilatation and MUA of her shoulder in the near future as well, which he would organise.
Investigations
163The plaintiff had an MRI scan of her right shoulder on 26 February 2016. The clinical note read: “MVA eight weeks ago with reduced range of motion? Rotator cuff injury.”
164It was reported there was no recent fracture seen. There was minor subdeltoid bursitis. There was no subacromial spur and the rotator cuff was intact. There was no definite labral or chondral abnormality, and no definite evidence of adhesive capsulitis seen.
165Following an x-ray of the right shoulder and humerus in July 2017, it was reported “previous fracture surgical neck of humerus. Fracture was impacted and satisfactory alignment.”
166There was an x-ray of the right shoulder on 21 August 2017. It was reported a comparison with previous film dated 31 July 2017 showed no change in position of the healing fracture at the cervical neck. Early callus was present but union not complete.
167On an ultrasound of the right shoulder in May 2018, no significant rotator cuff tendon tear was shown. The painful limitation of movement raised the possibility of adhesive capsulitis. An x-ray to exclude glenohumeral arthropathy may be appropriate.
168The plaintiff had an ultrasound-guided injection of the right subacromial bursa in May 2018. At that time, she also had an x-ray of the right shoulder, following which it was reported that the glenohumeral and acromioclavicular joints had a normal for age appearance. There were no significant bony changes of arthropathy. The subacromial space remained reasonable and there was no evidence of calcific tendinopathy.
169The plaintiff had a CT-guided injection of the right shoulder joint in June 2018 and an ultrasound-guided injection on 6 May 2020.
The Plaintiff’s medico-legal evidence
Mr Stephen Doig, orthopaedic surgeon
170Mr Doig examined the plaintiff in March 2022 for the purposes of an impairment assessment.
171On examination, there was tenderness over the rotator cuff and AC joint. There was no obvious crepitus. There was restricted movement of the right shoulder and cervical spine.[65]
[65]There were no tremors or finding of illness behaviour on examination
172Mr Doig diagnosed soft tissue injury to the cervical spine, and chronic right subacromial bursitis. He thought the prognosis was very guarded.
Mr Thomas Kossmann, orthopaedic surgeon
173Mr Kossmann examined the plaintiff in January 2018. The plaintiff did not bring any x-rays to the examination.
174She then complained of suffering from muscle spasms in her neck and right shoulder joint. She had a constant tremor. She could not move her right shoulder fully. She could not lie on her right shoulder and told him she did not drive.
175On examination, the plaintiff had a constant tremor. She was protecting her right arm and there was only limited movement of the right shoulder after he asked her to move it. There was restriction of cervical movement.
176During the examination, the plaintiff was extremely protective of her right shoulder joint, and he could only detect minimal movements.
177The plaintiff had no current work capacity.
178He diagnosed non-functional right shoulder joint with minimal movement, constant tremor and possible psychiatric overlay were responsible for her right shoulder symptoms.
179The prognosis regarding the plaintiff’s right shoulder joint was unclear. He did not force any movements during the examination, and the documented movements of her right shoulder joint had been active movement performed by the plaintiff herself.
180He noted the investigations following the accident relating to the plaintiff’s cervical spine and right shoulder joint did not indicate any significant pathology. Her present condition regarding her right shoulder joint did not match up with the objective investigation. However, prior to coming to a final conclusion, he recommended she undergo up-to-date investigations with x-rays of the cervical spine and right shoulder, MRI scans of both, and a neurological examination of her upper extremities, including EMG and nerve conduction studies.
181Should these investigations show that she does not suffer from any significant pathology which may explain her condition, he recommended referral to a psychiatrist.
182Due to her presentation, he thought the plaintiff had no work capacity and, as long as she did not have functional improvement of her right shoulder joint, she would never be able to return to any work.
183As far as he knew, the plaintiff had no pre-existing or unrelated condition which was affecting her current presentation. He recommended review of her condition within six to twelve months.
Psychiatric
Dr David Weissman, psychiatrist
184Dr Weissman first saw the plaintiff in late 2017.
185The plaintiff complained of pain in the middle of her neck, radiating to the right side of her neck and her right shoulder and shoulder blade.
186In the waiting room and when interviewed, the plaintiff did not actively move her right upper limb. She told him it hurt when she moved it, not that she could not move it. However, when she moved it, she experienced pain in her neck, right shoulder and back spasm.
187On mental state examination, she was mildly flat and subdued but not significantly depressed. She was mildly anxious. Her affect was definitely reactive and responsive. Her thought stream was within normal limits. There were no formal abnormalities of perception. She seemed to have significantly elevated symptoms and pain focus and preoccupation. In terms of movement of her right arm, she demonstrated abnormal illness and pain behaviour.
188He noted the accident itself was not particularly psychologically traumatic or distressing for the plaintiff. When seen, she experienced only mild residual traumatisation features.
189He wondered whether she was suffering from a conversion disorder or, alternatively, a fictitious disorder – malingering, in relation to the decreased movement in her right upper limb. However, it was difficult to deduce in a medico-legal setting, and raised complex matters of conscious factors versus so-called unconscious factors. These concepts and terms were often unhelpful in a medico-legal setting.
190The most appropriate diagnosis in relation to the plaintiff’s reported pain, her illness and pain behaviour and decreased movement in her right upper limb, was that of a Chronic Pain Disorder associated with psychological factors and a general medical condition DSM-IV, also now known as a Somatic Symptom Disorder with predominant pain DSM-V.
191Finally, the plaintiff was suffering from, on average, mild mixed reactive anxiety and depressive symptoms and features, with frustration as a consequence of, or secondary to, her accident-related pain, injuries, disabilities, limitations and restrictions. That would be best conceptualised as a Chronic Adjustment Disorder with Anxious and Depressed Mood, mild to moderate intensity or severity.
192Literally, there had been a maladjustment in the plaintiff’s capacity to adapt, adjust and cope with the accident itself, and more so the physical consequences and sequelae of the accident.
193He then thought the psychiatric prognosis was a little uncertain and guarded.
194He thought she remained totally incapacitated for all work for at least six to nine months and hopefully her overall state would improve to the extent that she will then be able to return to some suitable duties.
195On re-examination by audio phone in May 2022, he confirmed the plaintiff experienced mild residual traumatisation features only, and certainly not a full-blown chronic Post-Traumatic Stress Disorder (“PTSD”). This was the least significant psychiatric condition of her presentation.
196He thought she had sustained, and continued to experience, numerous significant and substantial losses and changes to her lifestyle and functioning, and to her quality of life since her involvement in the accident. That was important because “we know” that the key dynamics, in terms of the development of depression and grief, are significant loss and change, noting particular losses in terms of physical and mental health, work/job, financial stability, loss of previously enjoyed activities.
197He thought the plaintiff was now suffering from a fairly sustained perversive and persistent depressed mood of moderate intensity with anxiety and worry, and uncharacteristic frustration. That satisfied the diagnostic criteria for at least a moderate Chronic Adjustment Disorder with Depressed and Anxious Mood. However, he thought her symptoms had further evolved into a Chronic Major Depressive Disorder with anxious distress.
198Finally, but not insignificantly, the plaintiff appeared to have some pain and symptom focus and pre-occupation with elevated health concerns. He did not know whether her pain and symptom focus was in excess of, or discrepant with, the degree of organic pathology. It was possible, if not probable, that she had developed some symptoms and features of a Chronic Pain Disorder associated with psychological factors and a general medical condition DSM-IV, now known as a Somatic Symptom Disorder with predominant pain persistent DSM-V. Chronic pain disorders and somatic symptom disorders can, and often do, co-exist with organic pathology.
199Also, currently, there was elevated alcohol consumption representing at least Alcohol Misuse Disorder and possible Alcohol Abuse Disorder.
200He considered the psychiatric symptoms and impairment had stabilised. The plaintiff should continue to see her general practitioner for support and therapy, and would benefit from seeing a psychologist for counselling and support. She should also continue to see Dr Bassett, her pain management specialist. He recommended increasing the dose of Duloxetine to 120 milligrams daily, if tolerated.
201Taking into account her psychiatric diagnosis, together with her time out of the workforce and a lack of transferable skills outside of pre-injury type, the plaintiff was most probably totally psychiatrically incapacitated for all work. Overall, there had been, and continued to be, a moderately severe decline, deterioration and downturn in her quality of life, level of enjoyment and pleasure, and level of function since her involvement in the accident. Part of the above decline, deterioration and downturn appeared to be physically based, and therefore outside his area of expertise.
Dr Gregor Schutz, psychiatrist
202Dr Schutz examined the plaintiff by videolink in September 2022.
203The plaintiff was wearing a sling and held her arm by her right side. She was teary and moderately restricted in affect. She described some hopeless and helpless themes. Her cognition was grossly intact, and she had reasonable insight and judgement.
204She indicated that she had nerve pathology to her neck and right shoulder. She had been told she had a Chronic Pain Syndrome. She reported she has a sling and keeps her hand in place next to her side about 85 per cent of the time, as it is comfortable. Her pain in the right shoulder radiates from six to nine out of ten.
205She is taking OxyContin, 50 milligrams twice a day, from her doctor and is also taking Panadeine Forte.
206She reported a range of restrictions in her daily activities and leisure activities.
207She reported she felt depressed a fair bit, loss of interest, motivation and enjoyment. She had no suicidal ideation and no nightmares or flashbacks. She may have panic attacks.
208In his opinion, on balance and based on the history provided, mental state examination and collateral sources of information, the plaintiff has a psychiatric condition as per recognised classification system DSM-V, which is a moderate Adjustment Disorder with Anxious and Depressed Mood and features of traumatisation.
209A reasonable differential diagnosis for her mood symptoms would be of a Major Depressive Disorder. She described lowered mood, loss of interest, loss of motivation, teariness, irritability, poor sleep, lowered energy and negative ruminations. She also had possible panic attacks and anxiety in car-related situations. He thought there was insufficient evidence of a personality disorder, PTSD or a substance use disorder.
210There was likely to be a psychiatric component to the plaintiff’s pain, best described as psychological factors affecting a general medical condition or Somatic Symptom Disorder. There were high levels of somatic pre-occupation, and the plaintiff reported that when upset or stressed, that magnified her pain. Some independent assessment considered that there was a psychological reaction which was dominating her clinical presentation.
211The plaintiff’s depression had flowed on from the development of pain and physical limitations.
212Taking into account the psychiatric injury alone, the plaintiff was entirely restricted from employment and had no capacity for work on an indefinite basis.
Vocational evidence
213The plaintiff had an online vocational assessment with Bill Radley, psychologist and vocational assessment specialist, in April 2022.
214He concluded, with her existing qualification, skills and experience and injury physical limitations, the plaintiff had no current capacity to return to her pre-injury employment or to any suitable employment. She had no current capacity for any work. She had no capacity to undertake any form of occupational retraining. She had no capacity for any work into the future.
The Defendant’s medical evidence
215Clinical notes were available from the following:
· Seaport Medical Centre from 2007 to 2009.
· Cambourne Clinic from late 2010 to 1 February 2011.
· Jamieson Medical Clinical from 4 February 2011 to 3 December 2015, the day after the accident.
· Ochre Medical Clinic Barham, New South Wales – Dr Anusha Fernando, 13 September 2021 to 14 July 2022.
The Defendant’s medico-legal evidence
Right knee
Dr Philip Mutton, occupational physician
216Dr Mutton examined the plaintiff in March 2015 in relation to her December 2014 right knee injury.
217He then thought she could not resume pre-injury duties and hours. She was then participating in a return to work program “somewhat surprisingly”. She was restricted to sedentary work in the office four days a week, and he would not increase her hours at that time. He thought she was doing very well to even present for work.
218In his view, the symptom complex was very much suggestive of a meniscal injury and/or loose body within the joint, despite the MRI findings.
Mr Kunle Arogundade, orthopaedic surgeon
219Mr Arogundade reported in July 2015 to the insurer, having seen the plaintiff on 13 May.
220At that stage, the plaintiff had made some improvement, although she still had significant pain in her knee. He could not say she could fully return to pre-injury duties, but thought she could do light duties, limited hours, in a job that did not require squatting or lifting weights heavier than 2 kilograms above waist height. The barrier to not being able to resume full duties was ongoing atypical knee pain.
Medico legal – right upper limb
Dr Joseph Slesenger, occupational physician
221The plaintiff was examined by Dr Slesenger at the request of the plaintiff’s solicitors on 17 March 2022.
222The plaintiff then complained of residual right shoulder pain with severe restriction to a range of movement.
223On examination, the plaintiff was wearing a shoulder and chest harness, in which her right arm was held firmly in a flexed position at the right shoulder. She was able to remove the harness (she advised that it was worn when she was travelling long distances). There was a global tremor when examining each body part, including the neck, right shoulder and thoracic spine.
224On examination of the right shoulder, there was severe tenderness with palpation over the acromioclavicular joint, and the bicipital groove and movement was very limited. She presented with severe restriction to her range of neck and shoulder movements, with evidence of an intention tremor.
225He thought the plaintiff presented a difficult case to assess. She presented with a history of neck, right shoulder and right upper limb symptoms, developing immediately after the accident, however he noted:
· There was a delay in her undergoing right shoulder imaging, and he recommended a review of hospital and GP records, as well as physiotherapy records, in order to confirm the correlation between the right shoulder impairment and the accident.
· Clinical examination demonstrated almost total restriction to the range of shoulder movements. In contrast, there was no wasting around the right shoulder. There was evidence of severe weakness in the right upper limb, although there was no wasting there.
· There was evidence of an intention tremor while undergoing clinical examination, but no evidence of it at rest or while dressing.
226The plaintiff also presented with a psychological impairment which was outside his area of expertise. Based on the evidence, he was of the opinion there was a functional element to her presentation, and he recommended a review of the relevant records in order to confirm the causation.
227However, after taking into consideration the plaintiff’s current symptoms, her functional limitations, her residential location, her dexterity, the fact that she was forty-seven, and her past employment, he thought she could not return to pre-injury duties. However, taking into account the likely organic physical impairment, he thought she could return to work with restrictions on lifting and other activities, initially working four hours a day, four days a week.
228Dr Slesenger provided a further report, having been given the reports of Dr Grave, Dr Elder and various other GPs, and hospital records, together with the reports from the pain specialist, Dr Bassett, and medico-legal examiner, Dr Kossmann.
229Having reviewed the clinical records, he noted the plaintiff was suffering with a pre-existing work-related knee impairment, which appeared to be impacting on her work capacity prior to the accident, and she was taking Panadeine Forte at that time.
230Nevertheless, there was evidence to support injury suffered in the accident. There appeared to be initial cervical spine injury with right upper limb symptoms and subsequent development of right shoulder pain, for which the plaintiff had GP and physiotherapy attendance. The records also confirmed she had engaged with a pain specialist, but did not complete the program, and subsequently underwent multiple percutaneous interventional procedures and ketamine infusion, without success.
231He noted the records indicated the plaintiff had had an arthroscopy, but he had been unable to identify evidence of an arthroscopic repair. He noted there was no evidence of scarring of her right shoulder on examination.
232He also noted the comments of serial examiners indicated a significant functional element to the plaintiff’s presentation, in particular, Dr Elder’s comments with regards to the tremor and the absence of wasting around the upper limb – he observed a similar clinical pattern. He also noted concerns with regards to the plaintiff’s use of opioid analgesia and serial attempts to reduce her reliance upon that medication.
233Taking the evidence as a whole, he was now satisfied there was evidence of initial soft tissue injury to the cervical spine and subsequent development of chronic neck pain.
234He was unable to identify a physical cause of her right shoulder impairment, noting the re-assuring nature of the imaging findings and the inconsistencies identified at evaluation with himself and other examiners.
235He was also of the opinion there was a significant functional element to the plaintiff’s presentation and that appeared to be the dominant factor (the organic physical impairment was a minor contributing factor to her overall disability). He was also concerned that there was indication the plaintiff had developed a prescription drug misuse disorder and that should be confirmed by experts in the relevant field.
236Dr Slesenger reported again in September 2022, having been provided with further treatment and examination records.
237Taking the evidence as a whole, the accident was a limiting contributing factor with regard to the current organic neck impairment. He also thought she had a pre-existing occupational disability due to an unrelated knee injury and was also satisfied that the aggravation of her neck injury subsequent to the accident was also a limited contributory factor with regard to her subsequent occupational disability.
Mr Michael Dooley, orthopaedic surgeon
238Mr Dooley examined the plaintiff in June 2022.
239On examination, there was generalised tenderness. Active abduction and forward flexion of the right shoulder, external and internal rotation were to 20 degrees. Adduction and extension arc were to 5 degrees. As the plaintiff reached the limit of these movements, she developed a tremor of her arm and hand. She resisted attempts to passively move the shoulder beyond the active range of motion.
240He diagnosed a soft tissue injury to the cervical spine. The plaintiff did not sustain injury to her right shoulder in the accident.
241He posed the question why the plaintiff’s clinical course, subsequent to her injury, had been so different from that which would be expected, namely pain and stiffness of a steady progress in time and substantial improvement in symptoms over three months or so, with later occasional or intermittent neck pain.
242All sorts of reasons and suggestions have been and will be put forward.
243Terms such as chronic pain, Complex Regional Pain Syndrome, and Chronic Pain Syndrome are not interchangeable. They are different entities.
244Accepting the soft tissue injury, he thought the constancy and intensity of ongoing pain and described disability were far greater than one would expect to see for an organic condition.
245He believed the plaintiff had had a psychological reaction to a situation and that dominated a clinical presentation. He thought she had developed a Chronic Pain Syndrome.
246Every physical illness injury is accompanied by a psychological reaction that varies in its degree. A Chronic Pain Syndrome involves a complex physical and psychological interaction in response to injury and/or pain. One sees this syndrome almost exclusively in the setting of compensable injury. One sees this more commonly in patients who have previously sustained injury in a compensable setting and in patients who have a history of depression and anxiety. One sees this more commonly when injury is sustained in a setting where the patient believes they were not at fault, feels that the employer and colleagues are not taking them seriously, and those dissatisfied with their work and the workplace in general.
247In this setting, soon after injury, doctors often note a patient’s constancy and intensity pain, even at that stage out of proportion to the organic injury sustained.
248There are difficulties in treating people like this, who have an increasing analgesic requirement. More tests are ordered; more treatments are suggested. Often, a patient undergoes surgery which is usually based on investigation findings rather than specific symptoms and signs indicative of a particular diagnosis. Usually, surgery fails to provide any lasting improvement in symptoms. However, if the “penny doesn’t drop” and more investigation and treatments are ordered, there is more failure to improve.
249His view had always been that the syndrome began as a voluntary response or reaction. However, for it to continue in time, there is voluntary input. There is secondary gain from the sickness or invalid role and continuing to provide ongoing investigation and treatment does not help.
250The plaintiff fits this pattern.
251The use of the forearm sling, the tremor, and the marked restriction of active range of motion of the shoulder are all somatic manifestations of a Chronic Pain Syndrome. He did not believe the plaintiff had central sensitisation. She did not have Complex Regional Pain Syndrome of her right upper limb. She did not injure her shoulder in the accident.
252As regards treatment, his advice would be that the plaintiff needed to be confronted with the reality of her diagnosis. She did not require ongoing orthopaedic investigation and treatment and would benefit from supportive care of a single medical practitioner with an interest in this sort of problem.
253He would have expected, from an orthopaedic point of view, the plaintiff would have been able to return to her food services assistant-type work about three months after her soft tissue cervical spine injury.
Profess Mark Taylor, psychiatrist
254Professor Taylor examined the plaintiff initially on Zoom in April 2022.
255The plaintiff told him that she had no movement in her right arm. She did not do much during the day and listened to music and watched television. She said she could not lift heavy items and went shopping with her partner.
256The plaintiff told him of past treatment and that she had been recently referred to a new local psychologist, Anne Williams.
257She told him she cannot lift heavy items for example when she is cooking or shopping, “I’ve got no movement in my right arm”. She complained of pain on a daily basis in her right shoulder and the right side of her neck, which was annoying.
258Using the PHQ9, the plaintiff scored 7/27, indicating she did not meet the diagnostic criteria for any depressive illness currently.
259She was able to tolerate a long, approximately 70-minute assessment without obvious distress or difficulty. She was able to laugh and smile, and had an animated manner, and did not appear in discomfort. She spoke fluently and her thinking was coherent. Her emotional tone was reactive and appropriate. She did not appear objectively anxious and there were no signs of other significant mental illness, such as paranoia and psychosis. She was fully oriented in time, place and person.
260In his professional opinion, the plaintiff did not meet the diagnostic criteria for any recognised mental disorder. In particular, she was not clinically anxious, and she did not suffer from a depressive illness. There was an associated iatrogenic addiction to opiates which was the only current psychiatric diagnosis.
261From his general medical perspective, given that he had assessed hundreds of individuals who had been involved in transport accidents, the chronicity of the reported right shoulder pain was difficult to understand clinically, given the circumstances of the accident, noting the inconsistencies evident in the histories of this.
262He was willing to accept there was no significant pre-existing mental disorder at the time of the accident, nor any intrinsic predisposition to the development of a mental disorder.
263He did not consider a Chronic Pain Syndrome a psychiatric condition per se, noting it was not recognised in either DSM-IV or ICD10.
264He provided a supplementary report, having received the plaintiff’s GP’s records and Dr Weissman’s reports. He noted Dr Weissman’s recent diagnosis of mild traumatisation, commenting that DSM-IV and ICD10 did not recognise this as a diagnosis.
265He then summarised various records from Barham District Medical Centre detailing visits from 13 September 2021 to May 2022.
266Given the materials reviewed, he had, on one hand, his own conclusion there was no psychiatric diagnosis apart from opiate addiction and alcohol misuse and numerous GP consultations in 2021 and 2022, which made no diagnosis of any psychological or psychiatric condition beyond the management of the opiate addiction.
267On balance, while accepting this as a complicated case and highlighting, again, there are numerous medical inconsistencies evident, he had no reason to change his original conclusions, given this extra information.
268In particular, the numerous GP consultations last year and this year, which he had previously not had a chance to review, would appear to support his own diagnostic conclusions and comments about prognosis and work capacity. He had no reason to change his original conclusions given this extra information.
269He did not comment at all on the somatic symptom disorder diagnosis.
Vocational evidence
270The TAC carried out an initial vocational assessment report in June 2017.
271The plaintiff advised that she had participated in a RTW with her pre-accident employer doing office duties two days a week. That lasted until she had an adverse reaction to medication and no longer had a capacity for any work.
272She advised she believed the role of car rental officer was physically suitable for her as it required sedentary duties on a computer and providing customer service. She advised she believed the role would give her the opportunity to get up and move around the work environment and to vary her duties when required. She noted she had very good maths and computer skills.
273In the suggested role of a bookkeeper, she would be able to work from at home and at her own pace. Although a sedentary role, she could move around when she liked. She needed to complete training before working in this role. She advised that she had family with small businesses who had advised her they will be able to provide work for her when she completed appropriate training.
274The plaintiff signed a document setting out the jobs were suitable and would be the focus of her job-seeking services. Her GP, Dr Kantharajah also signed the document, agreeing the jobs were medically suitable, based on the plaintiff’s current level of capacity.
275A closure report dated 12 December 2017 described the plaintiff had a current certificate noting an incapacity to work.
276It was also noted that the plaintiff presents as very motivated to return to work when she is physically capable of doing so.,
Overview
277As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[66] “… 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.”
[66](2010) 31 VR 1 at paragraph [12]
278Counsel for the defendant raised a number of issues in relation to the plaintiff’s credit in this application.
279While telling Dr Slesenger that she wore the sling when travelling for long distances, she was not wearing the sling when filmed sitting in Darren’s truck, having travelled many hours from home or when crossing the road in Deniliquin.[67]
[67]T81
280Her Facebook entry and going fishing does not really fit with her affidavit of practically not doing a single thing. It was inconsistent with the picture that had been painted of someone who is an invalid with only one arm.[68]
[68] T61
281Further, the description by doctors of abnormal illness behaviour – even by Dr Slesenger who examined her at the request of her solicitors – points to an exaggeration of symptoms. At the very beginning, Dr Grave had doubts about the plaintiff’s condition and tried to talk her into doing exercises.[69]
[69]T71
282In response, counsel for the plaintiff submitted it was never put to the plaintiff firmly that she was feigning to some extent. A reference to abnormal illness behaviour does not mean feigning.[70]
[70] T88
283It was submitted the Court could find the plaintiff an unusually impressive witness, who made concessions against interest, who gave her evidence clearly and concisely, and sensibly.[71]
[71] T88
284She did not know she was under surveillance, and she was shown to get something off the dashboard with her left hand, and had to get assistance from Darren. It was submitted that very strongly suggested she was entirely genuine in her presentation as someone who does not use her right arm at all.[72]
[72]T88
285It was submitted Mr Dooley did not make a specific statement about this particular plaintiff’s voluntary input, it was more a general comment.[73]
[73]T95
286While I did have some concern about the plaintiff’s credit in this application, given the extreme nature of her complaints, the attack on her credit did not cause me to find her complaints were other than genuine or that she was feigning any upper limb problem. Further, any allegation of feigning was not firmly put to her in cross-examination.
287She was not filmed using her right arm in any way inconsistent with her evidence. In fact, she used her left hand when stretching across the dashboard to do something when not knowing she was being filmed. Darren then helped her with that task.[74]
[74]9.27am on 22 March 2022
288While she was not wearing a sling in the film or when crossing the road, the tenor of her evidence was that her arm is not in a sling all the time, but it is more comfortable if it is.
289She explained her Facebook post referred to her being with Darren while he was fishing. It did not mean she was fishing herself.
290Overall, I accept the plaintiff genuinely believes she has the significant level of right arm restrictions she described. The treatment undergone by her, her inability to continue working in a job she enjoyed and her inability to participate in a wide range of pre-accident activities form the basis of this finding.
Pre existing
291The plaintiff conceded she had a history of neck pain since the 2010 assault and was being prescribed painkilling medication at the time of the accident for this complaint and also a knee problem that had arisen in the year before the accident.
292Despite ongoing knee pain and restrictions on her work duties noted on examination in May 2015, the plaintiff maintained she was doing her normal duties as at the said date. She did concede, however, her knee pain gave her problems horse riding in the year before the accident.
293In those circumstances, I accept the plaintiff was functioning quite well as at the said date and had no significant restrictions in terms of her work and various activities.
Is there an organic impairment to the right upper limb as a result of the accident?
294There is limited medical evidence of any significant injury to the shoulder in the accident.
295Post-accident investigations did not show anything of any significance as a number of examiners commented. “Minor subdeltoid bursitis” was the only relevant finding on the right shoulder MRI scan in February 2016.[75]
[75]T72
296Counsel for the plaintiff submitted, on the whole, there is a clear organic basis, probably central sensitisation, with some bursitis in the shoulder probably being the explanation for it. While the doctors have failed to achieve a satisfactory diagnosis and treatment, that does not mean it is not there and it does not mean it is not organic and, overall, the fact that it is being treated by all of her treating specialists, physical treatment strongly suggests a physical basis.[76]
[76]T96
297A number of the plaintiff’s treaters have regarded the plaintiff’s shoulder condition as an organically based condition, treating her accordingly – with injections, ketamine infusions, physiotherapy and also surgery.
298However, those involved in her treatment have not explained adequately why she has been unable to move her arm since the accident as she claims.
299The procedures undertaken by Mr Plank appear to be more diagnostic in nature than treatment based. His available reports are of little assistance and predate the procedures undertaken.
300When seen in 2018, Mr Plank diagnosed a frozen shoulder, before requesting funding for the procedures he undertook. He agreed the MRI scans did not show any significant structural abnormalities – a situation that was very typical for a frozen shoulder. He has not reported after carrying out the procedures. A report from him would have been helpful in this case.[77]
[77] T3?
301As the plaintiff confirmed, no treatment, whether ketamine infusion or injections, has helped her pain and restricted movement.
302For years, she has been taking high levels of strong pain medication and has had issues with addiction. In those circumstances, her evidence that this medication has not helped her at all is not surprising.
303There is little current support for the diagnosis of central sensitisation made by Dr Grave and Dr Lim more than five years ago. While this is an organically-based condition, this diagnosis has not been made by more recent examiners and was specifically rejected by Mr Dooley in 2022, who did not believe the plaintiff had central sensitisation or a Complex Regional Pain Syndrome.[78]
[78]T76
304As early as February 2017, examiners have had concerns about the nature of the plaintiff’s right upper limb condition.
305When seen by Dr Elder that month, the plaintiff was completely minimising the use of her right shoulder. He then thought her presentation was so clouded with abnormal illness behaviour and inconsistency in response that it was difficult to elicit whether there was any objective ongoing pathology affecting her neck and right shoulder.[79]
[79]T80
306The plaintiff presented in a similar fashion to medico-legal examiner, Mr Kossmann, in January 2018. He thought post-accident investigations did not indicate any significant pathology and that her present condition regarding her right shoulder joint did not match up with the objective investigation. However, prior to coming to a final conclusion, he recommended she undergo up-to-date investigations. These have not been carried out. Further, he recommended a referral to a psychiatrist which had also not happened.[80]
[80]T78
307Mr Doig, in his AMA assessment of March 2022, diagnosed a soft tissue injury to the neck and chronic right subscapularis bursitis. He did not mention the plaintiff protecting her right arm or the presence of any tremor on examination.
308While acknowledging a soft tissue injury to the neck, Mr Dooley thought there was no shoulder injury in the accident. A psychological reaction to her situation dominated the plaintiff’s clinical presentation. She had developed a Chronic Pain Syndrome where there has been no improvement despite more and more treatment being undertaken. That syndrome begins as an involuntary response or reaction but for it to continue, there has to be voluntary input with secondary gain from the sickness or invalid role.[81]
[81]T76
309Dr Slesenger is of little assistance to the plaintiff. While he accepted there was an aggravation of a soft tissue injury to the neck in the accident, he did not find any shoulder injury. He was unable to identify a physical cause of her right shoulder impairment, noting the re-assuring nature of the imaging findings and the inconsistencies identified at evaluation with himself and other examiners.
310He also thought there was a significant functional element to her presentation and that appeared to be the dominant factor (the organic physical impairment was a minor contributing factor to her overall disability). He was also concerned that there was indication the plaintiff had developed a prescription drug misuse disorder.
311There is no medical explanation for the tremor seen by some examiners and there has been no referral to a neurologist or other specialist in relation to this condition.
312Taking into account all the evidence, I am not satisfied there is an ongoing organic basis for the plaintiff’s bizarre complaints – in particular, her inability to move her right shoulder nearly seven years after the subject accident, despite having undergone extensive treatment.
313Bursitis[82] found by one examiner, Mr Doig, when undertaking an impairment assessment – who did not note abnormal illness behaviour or the tremor – and a diagnosis of frozen shoulder by Mr Plank in 2018 with no more recent report – do not explain the plaintiff’s present bizarre and extensive complaints.[83]
[82]Minor subdeltoid bursitis found on February 2016 shoulder MRI scan
[83]T72
314Taking into account all the evidence, I am not satisfied any shoulder impairment is predominantly the product of an organic condition.[84]
[84]Transport Accident Commission v Kamel [2011] VSCA 110; Richards & Anor v Wylie (supra)
315Accordingly, the plaintiff’s application pursuant to clause (a) is dismissed.
Psychiatric
316While the plaintiff’s main focus was on the application under clause (a),[85] in the alternative, an application was brought pursuant to clause (c) for a psychiatric impairment. For this application to succeed, the plaintiff must establish the consequences of any accident-related psychiatric impairment are severe.
[85]T3
Is there a psychiatric diagnosis?
317There is a dispute between medico-legal psychiatric examiners as to whether there currently is any, and, if so, what psychiatric diagnosis.
318Dr Weissmann and Dr Schutz share a similar view that there is a moderate Chronic Adjustment Disorder which could also be now diagnosed a Major Depressive Disorder.
319Finally, but not insignificantly, Dr Weissmann thought the plaintiff appeared to have some pain and symptom focus and pre-occupation with elevated health concerns. It was possible, if not probable, that she had developed some symptoms and features of a Chronic Pain Disorder associated with psychological factors and a general medical condition (DSM-4), now known as a Somatic Symptom Disorder with predominant pain, persistent (DSM-5).
320On this re-examination by audio phone, he did not comment on whether the plaintiff was suffering from a conversion disorder or, alternatively, a factitious disorder – malingering, in relation to the decreased movement in her right upper limb - as he considered in his earlier examination in 2017.
321Dr Schutz also thought there was likely to be a psychiatric component to the plaintiff’s pain, best described as psychological factors affecting a general medical condition or Somatic Symptom Disorder.
322On the other hand, having carried out psychological testing in addition to mental state examination, Professor Taylor thought the plaintiff did not meet the diagnostic criteria for any recognised mental disorder. In particular, she was not clinically anxious, and she did not suffer from a depressive illness. There was an associated iatrogenic addiction to opiates which was the only current psychiatric diagnosis.
323He did not consider Chronic Pain Syndrome a psychiatric condition per se, noting it was not recognised in either DSM-IV or ICD10.
324I prefer the well-reasoned opinions of Dr Weissman and Dr Schutz, who included Somatoform Pain Disorder in their range of psychiatric diagnoses, having taken a comprehensive history of the plaintiff’s complaints and restrictions.
325Professor Taylor’s report is simplistic and of no real assistance. While saying there was no psychiatric disorder, he did not deal at all with why the plaintiff complains of pain, in particular her complaint she could not move her right arm.[86] Further, he had no history of her extensive sporting and other interests pre accident.
[86]T97
326As counsel for the defendant submitted, it was incumbent upon Professor Taylor to explain why he either considered the plaintiff was suffering a Somatic Symptom Disorder, or why he did not, but he did not do this in either his original or supplementary report.[87]
[87]T98
Treatment
327While both Dr Weissman and Dr Schutz included a Somatic Pain Disorder in their diagnosis, it is not a condition which the plaintiff’s GPs treated or mentioned in their clinical notes, save for Dr Hughes in August 2018, who diagnosed a Chronic Pain Syndrome.[88] Even at that early stage, he thought the plaintiff’s dysmobility had an enormous effect on her ability to be employed, noting her use of her right arm was near nil in any meaningful way.
[88]T84
328The plaintiff’s treating doctors have not referred her to a psychologist or a psychiatrist – focussing on treatment by way of pain management. The only referral was by Dr Lim to psychiatrist, Dr Sacks, whom the plaintiff did not attend in 2017 as the wait was too long.[89]
[89]T94
329However, the plaintiff has been prescribed anti-depressants since the accident, initially Pristiq but now taking Duloxetine on a daily basis.
330The issue of a Chronic Pain Syndrome has arisen largely in a medico-legal context.[90]
[90]T85
331As the High Court held in Transport Accident Commission vKatanas,[91] while the extent of treatment made necessary by a psychiatric disorder may cast light on whether the disorder should be classified as severe, it is only one of a range of considerations that needs to be taken. In each case, the Court must take into account the relevant circumstances personal to the plaintiff and then apply the statutory test making a value judgment as described in Humphries and Anor v Poljak.[92]
[91][2017] 161 CLR 550
[92]Supra
332The main thrust of the plaintiff’s case was that she had a genuine belief she could not move her right arm. In those circumstances, counsel submitted the lack of psychiatric referral was not significant when considering the consequences.[93]
[93]T91
333It was submitted the Court should accept absolutely what the plaintiff said about her inability to use her right arm and that, in itself, is a severe consequence. Her perception of the genuineness of her symptoms was demonstrated by her willingness to undergo a number of injections, a hydrodilatation, manipulation under anaesthetic and a ketamine infusion, which she underwent with a view to reducing her use of opioids.[94]
[94]T92
334Having found the plaintiff genuinely believes she cannot move her right arm, I accept this submission.
Consequences
335Loss of ability to work and frustration at that loss are relevant to assessing pain and suffering.[95]
[95]Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraph [35]
336The plaintiff has not worked since a short return to light duties in early 2016 at the Mercy.[96]
[96]T99
337She had started there as a food services assistant in 2011/2012 and was working 27 to 40 hours per week as at the time of the accident. She enjoyed that job immensely, working with the elderly. She had earlier worked in hospitality, earning around $30,000 per annum.
338In terms of post-accident work, while the defendant relied on the 2017 TAC vocational assessment, including a signed agreement from the plaintiff that the two suggested jobs – car rental officer and bookkeeper – were suitable for her,[97] her agreement was qualified. The closure report set out she presented as very motivated to return to work “when she is physically capable of doing so”.
[97]T81
339As at January 2022, the plaintiff was being certified unfit for all work by Dr Smollo in Portland.[98] However, the basis of this certification is unclear, as no clinical notes of that doctor were available.
[98] January 2022 affidavit
340Significantly, both Dr Weissman and Dr Schutz considered the plaintiff is totally incapacitated for work psychiatrically. As Professor Taylor found no psychiatric diagnosis, he did not consider any psychiatric injury affected the plaintiff’s work capacity.
341I am satisfied, as a consequence of her pain syndrome, the plaintiff is unable to work in her pre-injury or any other role. Her perceived inability to use her dominant right arm precludes a return to her pre-injury duties as a food assistant, or any other role. That situation is evidence of the severity of her psychiatric injury.[99]
[99]Hunter v Transport Accident Commission [2005] VSCA 1 at paragraph [34]
Other activities
342The plaintiff’s pain syndrome has significantly compromised her enjoyment of a wide range of pre-accident activities.
343As she told Dr Weissmann in May this year, she thinks about the accident “every day nearly, when I can’t do stuff. I’ve lost contact with my friends. I don’t socialise any more, I’ve lost my work. That was the biggest hurter. I’ve given up me horse, darts, netball, camping and fishing.”
344Horse riding and darts were both activities in which she was involved on a significant level before the accident. She owned her own horse but had had to sell it after the accident. Since the accident, she has been unable to play competitive darts in the Warrnambool competition and competitions in neighbouring towns
345While she can drive, go shopping, go camping and fishing and associate with her family,[100] she is very limited in her ability to engage in these activities.
[100]T86
346She has difficulty interacting with her young grandchildren.
347She prefers not to drive but when she does, she uses her left hand and rests her right on the base of the steering wheel. She needs Darren’s assistance to do the shopping and can carry only very light items herself.
348Darren largely does most of the housework, with the plaintiff doing light tasks like washing the dishes.
349Darren’s evidence corroborating the plaintiff’s complaints and restrictions was not challenged. He also detailed her difficulties with self-care and management and the assistance he gives her with personal hygiene, dressing and doing her hair. Further, he described the plaintiff’s frustration at not being able to engage in her pre-accident activities, her problems with mobility and driving and their limited social life post accident.
350The plaintiff’s daughter, Alannah, also deposed as to the wide range of problems the plaintiff has experienced as a result of her accident condition. Her evidence was also not challenged.
351I accept the consequences detailed above result from the accident-related pain syndrome. There was no other explanation proffered for the plaintiff’s inability to engage in these activities or return to the workforce.
352Taking into account all the evidence, accepting the genuineness of the plaintiff’s belief she cannot effectively use her right upper limb, I am satisfied that the consequences of the accident-related psychiatric impairment which the plaintiff presently suffers are “severe”.
353As this situation has continued for over seven years, I am satisfied the psychiatric impairment is long term.
354Accordingly, leave is granted to bring proceedings for common law damages pursuant to sub-clause (c).
Appendix 1
The Plaintiff’s earnings
Financial Year
Employer/Provider
Gross Amount
2012
Vic Hotel Pty Ltd
$30,897
Centrelink
$5,233
Total - $36,130
2013
Vic Hotel Pty Ltd
$25,424
2014
Vic Hotel Pty Ltd
$19,687
Mercy Aged and Community Care Ltd
$5,276
Wang Hu Family Trust
$2,235
Total - $27,198
2015
Mercy Aged and Community Care Ltd
$32,257
2016
Mercy Aged and Community Care Ltd
$21,228
TAC
$14,379
Total - $35,607
2017
TAC
$26,327
Mercy Aged and Community Care Ltd
$5,133
Total - $31,460
2018
No record
-
2019
Centrelink
$7,189
2020
Centrelink
$15,179
Host Plus Superannuation
$9,067
Total - $24,246
2021
Centrelink
$20,239
0
6
0