Bramston v Transport Accident Commission
[2025] VCC 274
•21 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-03374
| KRISTINE BRAMSTON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 February 2025 | |
DATE OF JUDGMENT: | 21 March 2025 | |
CASE MAY BE CITED AS: | Bramston v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 274 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – whether consequences of transport accident “serious” – relevant principles
Legislation Cited: Transport Accident Act1986, s93(4)
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Demmler v Transport Accident Commission [2018] VSCA 284; Abbas v Transport Accident Commission [2015] VSCA 217; State of Victoria v Glover [1998] VSCA 93; Petkovski v Galletti [1994] 1 VR 436; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission [2005] VSCA 1; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab SC with Mr P Johnstone | Ryan Carlisle Thomas Lawyers |
| For the Defendant | Ms S Manova | Solicitor to the Transport Accident Commission |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”), for injury suffered by the plaintiff in a transport accident which occurred on 21 January 2015 (“the transport accident”).
Relevant legal principles
2Section 93(6) of the Act provides that a court must not give leave under ss(4)(d) unless it is satisfied that the injury is a “serious injury”.
3The definition of “serious injury” as set out in s93(17) of the Act is, relevantly to this application:
“serious injury means—
(a) serious long-term impairment or loss of a body function … .”
4The plaintiff claims that by reason of the transport accident, she suffered injury to the function of her right upper limb.
5In 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 or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”.[1] It has been held that the relevant consequences to a plaintiff will relate to pecuniary disadvantage and/or pain and suffering.[2]
[1]Humphries and Anor v Poljak [1992] 2 VR 129 at 140
[2]Humphries and Anor v Poljak (ibid) at 140; see also Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [52] and [56]-[57]; Abbas v Transport Accident Commission [2015] VSCA 217 at paragraphs [36]-[39]; State of Victoria v Glover [1998] VSCA 93 at paragraph [30]
6In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of “serious injury”, as set out in s93(17), the relevant injury must also be long term.
7The plaintiff bears the burden of proof on the application. The standard of proof is on the balance of probabilities.
8The Court must assess whether the injury is “serious” for the purposes of the Act, as at the time the application is heard.[3] In assessing the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the transport accident.[4]It has been held that the task of assessing the pain and suffering consequences of an injury is largely a question of impression and value judgement.[5]
[3]See s93(6) of the Act, which states that leave must not be given by a court unless the court “is satisfied that the injury is a serious injury”. I take that expression to mean that the injury is “at the time at which the application is heard,” a “serious injury” for the purposes of the Act.
[4]Petkovski v Galletti [1994] 1 VR 436 at 442; Demmler v Transport Accident Commission (supra) at paragraph [52]
[5]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
9In determining the application, the Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[6]
[6]See, generally, Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
10It is well understood that a person who is injured is to be compensated only for such injuries as are proven to have resulted from the relevant accident.[7] To undertake this task, the plaintiff must establish what injury was caused by the transport accident. The Court must then determine the consequences of that injury to the plaintiff by comparing the plaintiff’s condition before and after that injury.[8] If the Court is satisfied that the additional impairment is “serious” and long term, then the plaintiff will have demonstrated that she is suffering from a “serious injury” under the Act.[9]
[7]Petkovski v Galletti (supra)
[8]ibid at 444
[9]supra
11The plaintiff relied upon three affidavits, gave viva voce evidence and was cross-examined. She also relied upon an affidavit from her husband, Mr Luke Bramston. Mr Bramston was not required to attend for cross-examination.
12In addition, both parties relied upon medical reports and other materials which were contained within Court Books filed before the hearing.[10]
[10]Specified pages of the Plaintiff’s Court Book were together marked as exhibit (“Ex”) P1. Specified pages of the Defendant’s Court Book were together marked as Ex D1.
13I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
Background
14The plaintiff is presently aged sixty-eight, having been born in March 1956.[11] She completed Year 9 at high school. She worked for a time as a retail assistant in a chemist’s shop. She married in 1977 and had two children. She remarried in 1983 and had a third child.[12]
[11]Ex P1, p6
[12]Ex P1, p6
15After spending some time raising her children, she worked as a part-time photographer, and in also in retail stores. She retired from work in 2009. Since about 2018, she has done some bookwork and running errands for her husband’s food-consulting business. She also does some volunteer work and minds her grandchildren every school holidays.[13]
[13]Ex P1, p6
Previous injuries
16In about 2004, the plaintiff slipped and fell at work, bruising her shoulder, knee and hip. She visited her general practitioner, but did not have any time off or other treatment after that injury.[14]
[14]Ex P1, p6
17In about 2004, she developed bilateral carpal tunnel syndrome. She had surgery on each wrist in about 2004 and made a good recovery.[15]
[15]Ex P1, p6
18In about 2008, she was involved in a motor vehicle accident where she was struck from behind. She suffered a detached retina and needed an operation to re-attach the retina to her eye. This was successful and she made a full recovery.[16]
[16]Ex P1, p6
19In late 2013, she was involved in a motor vehicle accident where she was struck from behind. She suffered a whiplash injury to her neck and left arm. She recovered after a short time and does not recall any significant treatment arising from this injury.[17]
[17]Ex P1, p7
20Prior to the transport accident which is the subject of this claim, she was fit, active and well, and had the full use of her right upper limb.[18]
[18]Ex P1, p7
The transport accident
21The plaintiff described the transport accident in the following way:
“On 21 January 2015 at about 11am I was travelling in a courtesy car as my car was being serviced. I was travelling on the Peninsula Link in Frankston North and was slowing because of traffic ahead, when a truck … drove into the back of my car. The car was badly damaged and wasn’t driveable. I was given a lift home but had pain in my right shoulder and neck.
I attended Dr Angela Purchase, at my general practitioner’s clinic, and was given some pain relief. The pain didn’t go away and I returned to see Dr Gray, at the same clinic, a few weeks later and was sent for investigations. These revealed a tear to my rotator cuff. I was advised to wait and see whether the injury would settle down over the following months.”[19]
[19]Ex P1, p7
Injury after the transport accident
22In late March 2015, the plaintiff had a fall in Bunnings which caused right shoulder pain (“the Bunnings fall”). She went back to her general practitioner and was sent for further scans. These scans did not reveal further significant damage to her right shoulder.[20]
[20]Ex P1, p7
23In relation to this matter, Counsel for the defendant conceded that none of the medical evidence in this case implicates the Bunnings fall as being the cause of the plaintiff’s current condition, or any substantial or permanent aggravation of it.[21]
[21] Transcript (“T”) 7, Lines (“L”) 2-9
Treatment and outcome of right shoulder injury following the transport accident
24In April 2015, the plaintiff was referred to Mr Andrew Weber, orthopaedic surgeon, but unfortunately he did not treat Transport Accident Commission (“TAC”) patients. She had a cortisone injection in June 2016 and was then referred to Mr Richard Large, orthopaedic surgeon. He recommended surgery, which was performed in November 2015.[22]
[22]Ex P1, p8
25After the surgery, she had extensive physiotherapy and was given exercises to assist in her recovery. It took a long time, but she felt she was making good progress and she gradually recovered a significant amount of use of her right arm. She experienced some pain with forceful or repetitive use of the right arm, but was able to return to most of her normal activities.[23]
[23]Ex P1, p8
26In about 2021, she started to experience increasing problems with her right upper limb. She does not recall any significant precipitating event. She does a lot of gardening and she particularly noticed an increase in right shoulder pain and a sense that her shoulder was “hot”. She also recalls she was finding it increasingly difficult to assist her large dog to get up into the car.[24]
[24]Ex P1, p8
27She put up with the increasing right shoulder pain for some time, but in early 2022, she attended her general practitioner and was referred back to Mr Large. She was sent for an MRI scan, which she believes showed inflammation. Mr Large referred her to Mr Lachlan Wakeling, physiotherapist, for treatment.[25]
[25]Ex P1, p8
Evidence concerning the consequences of the injuries suffered in the transport accident
The Plaintiff’s affidavits
28The plaintiff swore three affidavits, the first dated 15 March 2024, the second dated 4 December 2024 and the third dated 21 February 2025. The evidence which the plaintiff gave as to the consequences of the injuries she suffered in the transport accident is as follows:
Experience of pain
(a) she experiences right shoulder pain most of the time. The pain varies in intensity and is generally worse with activity when using the right arm. The pain is like a stinging pain and with a sense of heat in the shoulder, and sometimes numbness down the arm to her fingers. Her right arm often feels tired, sore and heavy;[26]
[26]Ex P1, p9
(b) when she wakes up in the morning, she has a dull ache in her right shoulder. She finds that the pain levels in her right arm fluctuate during the day, depending on how active she has been. Most of the day her pain level is about three to five out of ten on a pain scale. There are times when she does not suffer from pain during the day, but this is when she is not using her right arm; however, there are often times when she is suffering pain in her right shoulder, even when she is resting her right arm;[27]
[27]Ex P1, p20
(c) basic activities, like lifting, pushing, pulling or reaching, cause her to suffer worse pain. She also suffers worse pain with repetitive or prolonged use of her right arm;[28]
(d) she often suffers from flare-ups of the pain in her right arm during the day. When she suffers a flare-up, she experiences a sharp, stinging pain in her right shoulder, which causes her to stop the activity she is doing. The pain level at this time can be seven to nine out of ten. After a flare-up, she tries to relax her right shoulder, which relieves the pain; however, she still suffers from a restriction of movement in her right shoulder for a few days following each severe aggravation or flare-up;[29]
(e) she continues to be active and use her right arm as much as she can; however, if she does whipper-snippering, or gardening, she gets a flare-up of pain. It is also painful to raise her right arm above shoulder height and she finds that generally, her right arm is very weak;[30]
Treatment and medication
(f) she uses Panadeine Forte, Valium and Panadol to manage the pain in her right arm. She developed a dependence on Endone after her surgery and as a result, is very careful and uses her medication sparingly. When the pain is very bad, she takes a few Panadeine Forte tablets and goes to bed, as they make her feel “woozy”;[31]
(g) she finds that Panadeine Forte is strong for her. She also takes Valium, but prefers to take care to rest and avoid activity when she is taking pain relief, for fear of overextending herself and causing a flare-up or further injury to her right arm;[32]
(h) she continues to take at least four Panadol tablets a day. Presently, when she suffers a flare-up in her right arm, she takes Panadeine Forte at night, but she continues to try and avoid this, as she is fearful of opiates. She generally takes Panadeine Forte about one to two times per week. She continues to take Valium at night. Both of these medications are prescribed by her general practitioner;[33]
Sleep
(i) sleep continues to be a problem for her. She has difficulty falling asleep due to right upper limb pain, and is often woken by pain in this area during the night;[34]
(j) her sleep is interrupted by pain if she rolls onto her right side during the night. She tries to sleep on her stomach with her right arm raised, but her right arm often “goes to sleep”, which also wakes her up;[35]
[28]Ex P1, p20
[29]Ex P1, p21
[30]Ex P1, p9
[31]Ex P1, p9
[32]Ex P1, p13
[33]Ex P1, p20
[34]Ex P1, p21
[35]Ex P1, p9
Activities of daily living
(k) she manages her domestic tasks with some difficulty. She struggles with vacuuming, window cleaning, or cleaning tasks which require her to lift her right arm above shoulder height. Generally, she now does cleaning tasks in small stints. She used to be able to manage the whole house without interruption;[36]
[36]Ex P1, p9
(l) she has stopped using the petrol whipper-snipper as it too much pain in her right arm. She now pays someone to perform that work;[37]
[37]Ex P1, p9
(m) she used to love gardening, and still manages to do some, but she is limited in what she can manage and she usually pays a price with increased right shoulder pain afterwards. She does as much as she can and relies heavily on using her left arm where she can. She finds this a struggle, and all the more so because her husband works long hours and is not available to do much gardening;[38]
(n) her husband purchased a smaller, battery-operated whipper snipper, which she can manage to use for short periods to do gardening near her house. She still relies on a gardener for the bulk of the garden, as they have a 2‑acre block. Since her right shoulder flared up, it has become beyond her ability to manage the block they live on. The gardener comes once a fortnight at a cost of about $150. She finds incurring this expense annoying, but the really upsetting thing for her is that she cannot do the gardening herself, as she used to enjoy it greatly;[39]
(o) she struggles to drive for long periods, as her right shoulder gets tired and sore. She often rests her right arm on the arm rest or on her lap. She steers the car using her left arm;[40]
(p) she usually “pays the price” after a long drive, with increased symptoms of pain in her right arm;[41]
(q) she struggles with shopping when it involves lifting and carrying heavy bags or items with her right arm. She relies on her left hand as much as possible to do this task;[42]
(r) she usually shops more frequently now, to ensure that any bags she has to carry are less heavy and also to avoid aggravating her right shoulder pain. She also relies on her husband to carry bags of shopping into the house from the car;[43]
(s) she has two active grandchildren and used to enjoy playing sports like basketball and tennis with them. She cannot really manage these activities anymore, which she finds frustrating and upsetting;[44]
(t) she continues to try to enjoy sporting activities with her grandchildren, but this is limited by reason of her right shoulder pain, which often flares up when she engages in this activity. Her grandson has tried to teach her to throw a ball without putting stress on her right shoulder. She tries to engage with her grandchildren, as she realises that she will “never get this time back”, but the activity is limited by the injury to her right shoulder. She finds this upsetting;[45]
(u) she volunteers at the Golf Links Road Rehabilitation Centre in Frankston, as a patient companion. There is no lifting or work of a similar kind with this job. She volunteers at the HMAS Cerberus Museum, which is at the naval base in Crib Point. She is a consumer adviser on several hospital boards. She also volunteers once a year as a clown at the Peninsula Aero Club. She helps from home to organise this event, liaising with the organisers to get children and their families to come to the event. She handwrites the family boarding passes which are given to the families. Her right shoulder hurts when she is undertaking that activity. On the day of the event, she walks around dressed up as a clown;[46]
(v) she finds that her right shoulder symptoms are often worse after the days she has done volunteer work. She still does this work however, as it is important to her mental health and she enjoys trying to make a contribution where she can.
[38]Ex P1, pp9-10
[39]Ex P1, pp13-14
[40]Ex P1, p10
[41]Ex P1, p14
[42]Ex P1, p10
[43]Ex P1, p14
[44]Ex P1, p10
[45]Ex P1, p14
[46]Ex P1, pp21-22
The Plaintiff’s viva voce evidence
29Under cross-examination, the plaintiff gave the following relevant evidence:
(a) following surgery to her right shoulder, she gradually recovered a significant amount of use of her right arm. There was still some pain with forceful or repetitive use, but she was otherwise able to return to most of her normal activities;[47]
[47]T 9, L 24-30
(b) she had about a 90 per cent improvement in her pain levels in the first five or so years after the surgery;[48]
[48]TT9-10
(c) in about 2021, there was an increase in the pain in her right shoulder. She cannot pinpoint a specific event that led to this;[49]
[49]T10, L9-11
(d) in 2021 and 2022, she was doing a fair bit of work around her house and also on the 2-acre property which surrounds it, doing gardening and activities such as whipper snippering;[50]
[50]T10, L12-31
(e) she went back to see Mr Large in early 2022, when the pain got bad. He referred her to Mr Wakeling for physiotherapy;[51]
[51]T11, L5-10
(f) the symptoms she was experiencing in 2022 improved “mildly” following physiotherapy with Mr Wakeling;[52]
[52]T11, L15-16
(g) her right shoulder condition has deteriorated since that time;[53]
[53]T11, L20-31
(h) she attributes this to her everyday activities of “living”. She said that the cause of the pain she experiences is “… getting up and doing everything”;[54]
[54]T12, L1-5
(i) she has moderated her lifestyle accordingly.[55] By this she means that she will still try to do the same tasks but she will reduce the number of hours that she does them for. For instance if she used to do three hours of housework, she would now do one hour, “I’ve pulled back. Yes”;[56]
[55]T12, L6-9
[56]T12, L16-29
(j) in February 2022, when she returned to see Mr Large, she described the worst pain that she had at that time from her right shoulder, as “severe”;[57]
[57]T13, L12-30
(k) she agreed that this answer did not mean that her pain in February 2022 was “severe”, merely that this was a description of the worst pain she had ever had in relation to her right shoulder, up to that point;[58]
[58]T14, L3-5
(l) she has changed the way that she does a lot of household tasks. For instance if she is carrying a tray, she moderates the way that she holds it, being careful to hold her right arm close to her body. In relation to brushing or combing her hair, she uses her left hand, rather than her right hand;[59]
[59]TT14-15
(m) at present, the way she would describe the pain she feels most of the time is “moderate”;[60]
[60]T15, L21-31
(n) it was suggested to her that “most of the time”, she does not experience pain in her right shoulder. She disagreed with this proposition and replied, “No. I am in pain … most of the time”;[61]
[61]TT16-17
(o) she agreed that there are times when she does not suffer from pain during the day, usually when she is not using her arm;[62]
[62]T17, L2-6
(p) it was suggested to her that when she is resting, such as when she is watching television, she does not typically feel pain in her right shoulder. In response to this, she replied, “Not always”;[63]
[63]T18, L5-8
(q) after she has had a pain flare-up because of a particular activity that she has engaged in, she experiences pain, even when she is at rest;[64]
[64]T18, L9-11
(r) it was suggested to her that if she has not had a pain flare-up and she is not using her shoulder to do any activity, typically her right shoulder is not painful. She disagreed with this proposition;[65]
[65]T18, L12-16
(s) she said that there are “very limited times that I can sit and have no pain”;[66]
[66]T18, L28-30
(t) it was suggested to her that this is because she is typically quite active during the day. She agreed with this proposition. She also agreed that she is “a pretty active person”;[67]
[67]TT18-19
(u) when she is doing an activity that is causing her pain and she stops that activity, the pain does not go away straight away, but it subsides;[68]
[68]T19, L10-24
(v) when she gets pins and needles in her right arm, she can wriggle her fingers and that sensation goes away;[69]
[69]T21, L5-11
(w) she did not recall telling Dr Shah that the pain in her shoulder can be zero out of ten;[70]
[70]T21, L23-29
(x) she recalled telling Dr Shah that her pain can go up to nine out of ten;[71]
[71]T21, L30-31
(y) she said that the type of manual work that would cause this level of pain is vacuuming, cleaning bathrooms, cleaning the kitchen, cleaning kitchen benches and cleaning windows;[72]
[72]TT21-22
(z) the usual level of her pain is three to five out of ten;[73]
[73]T22, L10-14
(aa) she agreed that she has not had any further specialist treatment on her right shoulder since she saw Mr Large in 2022. He has not recommended or planned any further review with her. She agreed that there is no further specialist treatment of any kind being contemplated by her at the moment. She agreed that she has never been to a pain specialist;[74]
[74]T22, L15-22
(bb) she continues to take at least four Panadol tablets per day. When she has a flare-up, she takes Panadeine Forte;[75]
[75]T22, L27-31
(cc) the last time she was prescribed Panadeine Forte for her right shoulder pain was just before Christmas. The last time she took Panadeine Forte for her right shoulder pain was three days prior to the hearing. On that occasion, she took one tablet;[76]
[76]T23, L3-8
(dd) she agreed that from time to time, she uses Panadeine Forte for other aches and pains that she might have;[77]
[77]T23, L9-12
(ee) the last time she was prescribed Valium for her right shoulder pain was just before Christmas. The last time she took a Valium tablet was two nights prior to the hearing. She said that she takes Valium because it is a muscle relaxant, so it helps her to get to sleep;[78]
[78]T23, L17-23
(ff) she agreed that it is still painful to raise her right arm above shoulder height and that her right arm is very weak. When asked what she means by her arm being very weak, she replied, “I don’t have the strength I had before … To open lids. Things around the house. I don’t have that strength anymore in my arm.” When she was asked whether or not her shoulder pain somehow stops her from opening a lid on a jar, she replied, “Yes. And carrying shopping … I carry with my left hand;”[79]
[79]T24, L1-12
(gg) she described her right arm as feeling “weaker. I feel like it’s lost muscle tone because I can’t do a lot … Day to day things, for example. Carrying shopping is one … I don’t have the strength to carry shopping. I carry with my left. That’s getting much better.” She said that because she constantly swaps to using her left arm rather than her right arm, her left arm is getting stronger, but her right arm continues to get weaker;[80]
[80]T25, L4-20
(hh) she lives with her husband. It is just the two of them in the house. He is physically capable. Despite this, over the years since the transport accident in 2015, she has done a substantial amount of physical work around the home, including home renovation and painting;[81]
[81]TT25-26
(ii) she said that the home renovation activities that she has done since the transport accident amount to “a little bit of gardening” and a “bit of painting”;[82]
[82]T26, L12-22
(jj) she agreed she had re-tiled her bathroom;[83]
[83]T26, L23-27
(kk) in relation to other renovation activities at the house, she explained she had engaged workmen to undertake that work. She had done some of the clean-up after the work had been done. The clean up activity is just doing the vacuuming or tidying up and sweeping;[84]
[84]TT26-27
(ll)in terms of gardening, she said that since the transport accident, she had mowed the lawns and whipper-snippered and maintained her property “until I couldn’t do it anymore … I think that was around 2018 … I had people come and help me then”;[85]
[85]T27, L15-18
(mm)she now uses a lighter, battery-operated whipper snipper, just around the house. She uses the battery-operated whipper snipper to trim the hedges which are about waist high. She described how she has modified the way she holds the whipper snipper by tucking her right arm in against her body, so she can continue to do that activity;[86]
[86]TT27-28
(nn) in addition to having the gardeners, she gets her husband to help her do any activities that she is unable to complete;[87]
[87]T28, L24-30
(oo) she agreed that she still goes for walks by herself and that her ability to walk is not affected by her right shoulder pain;[88]
(pp) she continues to socialise with her friends, her grandchildren and her husband. She said that her ability to socialise is “not affected”, but then added “but if I’m not in a good way, I don’t go out”.[89] This would have happened about four times in the last year. She said that this occurs “If I’m having a bad time with my arm, then I just want to sit. I can’t go out and be social. I’m not in the right frame of mind to be happy when I’m not. So, I’d stay home”;[90]
(qq) she has difficulty driving long distances because of her right shoulder. She said that she can drive long distances “when I have to do it”;[91]
(rr) she was asked questions about a time where she drove her husband to and from work over a period, for six to seven hours a day. She explained that her husband had had a back operation and needed to travel from Tyabb on the Mornington Peninsula up to his plant office in Flemington. She explained that the reason the drive took so long is because of the amount of traffic on the freeway. She said she would drive her husband to Melbourne, come home, have a rest and then go back and get him later in the day. She said she did this for about four weeks, possibly five weeks. She said she had to do it, because her husband could not drive at this time;[92]
(ss) when she gets home with shopping which might cause her pain to carry, her husband helps her by unpacking the car for her;[93]
(tt) she agreed that she has been able to travel overseas since the transport accident;[94]
(uu) she was asked about the way she interacts with her grandchildren. She was specifically asked whether or not she goes out with them and throws a ball. In response to this, she replied “I can’t. No”. It was put to her that in her second affidavit, she had said her grandson had taught her to throw a ball without hurting her right shoulder. She explained that he had tried to teach her how to do that activity but even then, she was not able to do it. She said that when she goes out with her grandchildren, she endeavours to do activities to the limit of what she can manage. For instance she cannot actually play tennis but she does the best that she can, keeping her right arm close into her body and “flicking” the ball over the net. She said she aims to keep her grandchildren active, by engaging them in being outside. She does the best that she can when she is out there with them;[95]
(vv)she demonstrated to the Court on a number of occasions, the way in which she tucks her right arm in close to her body and uses only her right forearm to do activities. She said that she understands from previous physiotherapy sessions, that this is a position where she will not do any more damage to her right shoulder. She described this position as “a security”;[96]
(ww) she can no longer do domestic tasks such as vacuuming, mopping or washing, for extended periods of time, without her right shoulder hurting. She explained that she breaks the activities up so that she does not aggravate her right shoulder. She does these activities “bits at a time”;[97]
(xx) some activities like cleaning the bathroom, loading or unloading the dishwasher or lifting something heavy, can cause a flare-up of pain. She explained that this “will be a sharp, stinging pain”. When this happens, the pain lingers for a bit, “So I just wait”.[98]
[88]T29, L7-10
[89]T30, L1-5
[90]TT29-30
[91]TT32-33
[92]TT33-34
[93]T34, L20-29
[94]TT35-36
[95]TT37-39
[96]TT39-40
[97]T41, L5-18
[98]T41, L19-26
30During re-examination, the plaintiff gave the following relevant evidence:
(a) when she experiences it, the sharp, stinging pain she has referred to, goes up to a level of nine out of ten;[99]
[99]T42, L5-8
(b) that type of pain lingers. Depending on what she has done, she can sit down for a moment and the pain might resolve. But if she has “done something stupid and reached up”, then it can take longer, maybe up to a couple of hours, for the pain to resolve;[100]
[100]T42, L10-14
(c) she started adopting the technique where she tucks her right arm into her body to protect it, in about 2017 or 2018. She started doing this because she could not risk her right shoulder pain getting any worse;[101]
[101]T42, L21-24
(d) when asked who had instructed her about the technique, she replied, “Me”;[102]
[102]T42, L25-26
(e) prior to the transport accident, she did not have any difficulty playing tennis with her grandchildren;[103]
[103]T42, L27-31
(f) prior to the transport accident, she would be hitting a tennis ball every day, “Even if it was just by myself”;[104]
[104]T43, L2-4
(g) prior to the transport accident, she did not have any difficulty throwing a basketball;[105]
[105]T43, L5-8
(h) even with her right arm and elbow tucked in, if she does activities for any length of time, she experiences symptoms in her right arm. She can only engage in activities for about fifteen minutes and “then I can’t do it … Because of the pain”;[106]
[106]T43, L9-15
(i) when her grandson tried to show her a modified way of throwing the basketball, that had an impact on her right shoulder. She was only able to do it for about ten minutes, but her right shoulder became aggravated;[107]
[107]T43, L16-21
(j) prior to the transport accident, when she did not have shoulder pain and she was playing tennis or basketball with her grandchildren, she would have been able to do it until “I wore them out”. She said this might be for an hour or an hour-and-a-half;[108]
[108]T43, L22-28
(k) she was asked about how she manages to travel overseas, given that her right arm is in pain. In response to this, she replied “It’s uncomfortable, but I won’t get it back again … so I want to do this”. When asked how she manages with her luggage, she replied “My husband”. Prior to the transport accident, she did not have any difficulty handling luggage or flying long distances;[109]
[109]T44, L1-11
(l) when she was in Disneyland with her grandchildren, she was not able to go on all the rides with them, as she was not confident that she could manage the injury to her right shoulder. She said, “I didn’t want to damage my arm at all. I didn’t want to risk it.” If she did not have the injury to her right shoulder, she would have gone on all of the rides. She said that not being able to go on the rides with her grandchildren left her feeling a “bit isolated”;[110]
[110]T44, L12-20
(m) prior to the transport accident, she had no difficulty handling all of the shopping, including unpacking the car and bringing the shopping inside;[111]
[111]T44, L21-28
(n) since the transport accident, if she has to unpack the shopping herself, she uses her left hand to lift items. She has learnt to do it that way, to avoid pain. Prior to the transport accident, she was right-side dominant;[112]
[112]T45, L2-8
(o) during the period that she was driving her husband to and from work, her right shoulder became tired and tender. She did not think she would have been able to do that amount of driving for a longer period of time than four weeks;[113]
[113]T45, L9-15
(p) she said that her symptoms in her right shoulder are getting worse. She gave as an example the fact that she has family who live in New South Wales and she has to stop three times on the drive to get there. When asked why she takes those stops, she said, “I can’t hold my [right] arm on the steering wheel for that extended period of time … I think it’s that my arm just gets very tired, and it stings … in my shoulder. Down my arm. And sometimes it radiates up to my neck;”[114]
[114]TT45-46
(q) she said that she can drive for about an hour-and-a-half to two hours before she starts getting these types of symptoms. When these symptoms arise, she tries to stop, relax and sit or lie down. She may have to rest like this for up to two hours;[115]
[115]T46, L3-11
(r) she was asked about the accounting work that she does for her husband, preparing his BAS statement and other administrative tasks. There is some typing involved in these tasks. She said that when she is sitting at a computer for more than an hour, her right arm becomes painful. The stinging pain starts to arise in her right shoulder in those instances;[116]
[116]T46, L12-23
(s) she was asked about her work at HMAS Cerberus, where she volunteers. She said that at this point in time, she is doing some scanning of paperwork at that location. She predominantly uses her left hand to do that task. This impacts on how quickly she can get the task done;[117]
[117]T46, L24-31
(t) prior to the transport accident, she did not need gardeners at her property. She did the gardening;[118]
[118]T47, L1-8
(u) the reason she got the gardeners in was because she could not do the whipper-snippering anymore. The petrol whipper-snipper was “just too heavy. I couldn’t hold it. I had no strength in my arm.” She used to do about two hours of whipper snippering every week. She also used the ride-on mower at the property; however, eventually she found that going around trees and up and down the property using her right arm was “just too painful”. She used to do about two to three hours of mowing per week;[119]
[119]T47, L5-23
(v) she now uses the battery-operated whipper-snipper which is much lighter. She also said that the area of garden that she is trimming with that whipper-snipper is “a quarter of the size of [the courtroom]”;[120]
[120]T48, L1-6
(w) when she does this activity with the battery-operated whipper-snipper, she experiences “a little bit of pain, but only around 3 to 4 [out of 10]”. She said that when she does this task, she tucks her right elbow in against her body in the manner that she had demonstrated in court. She agreed that the way she manages this activity is to only do it “in moderation”;[121]
[121]T48, L7-16
(x) prior to the transport accident, she used to do renovation works herself. She would have had no difficulty cleaning up the rubble from such work. She is no longer able to undertake that type of activity, because of the pain in her right shoulder;[122]
[122]T48, L17-28
(y) when she has done some painting at her house, she used her left hand. She agreed that she had sometimes gone up a ladder to paint the gutters. When asked how she did this, she said, “I put the ladder up and I laid on the ladder and supported myself with my right hand and painted with my left hand”. When asked how this differed to the way she would have painted before, she replied “I would have painted with my right hand and not lying down”;[123]
[123]T49, L1-11
(z) she agreed that she has moved furniture since the surgery on her right shoulder. When asked how she does this, she replied, “I sit down on the ground and kick it with my feet … I just move it all around the house with my feet.” She said that she does this, “Because I can’t use my [right] arm to lift a lounge or move a lounge or big bulky chairs”;[124]
[124]T49, L12-22
(aa) she takes Valium about four times per week. It is for the purposes of helping her to get to sleep. If she does not take the Valium it takes her a long time to get to sleep, because the pain in her right arm is uncomfortable;[125]
[125]TT49-50
(bb) she last went to see the physiotherapist in 2022. She stopped seeing the physiotherapist because “I didn’t feel I was getting anywhere”;[126]
(cc) prior to the transport accident, she did not have any difficulty with her home duties of vacuuming and cleaning such as cleaning bathrooms, cleaning kitchen benches and cleaning windows. It was her who always did those activities.[127] Now she can only vacuum for a maximum of twenty minutes at a time and her right shoulder hurts when she does this activity. There is more than twenty minutes of vacuuming to be done at her house. After vacuuming for twenty minutes she needs to rest because of the pain in her right shoulder;[128]
(dd) in relation to cleaning bathrooms at her house, she has changed the way that she does this task, viz “I try to do it, so it doesn’t hurt … Moderating it to … [get] closer to the things or not reaching forward as much”. If she reaches forward, she gets the “sharp stinging pain”;[129]
(ee) the situation is the same with wiping down kitchen benches;[130]
(ff) she is unable to clean the windows at her home;[131]
(gg) prior to the transport accident, keeping house was very important to her. Now she estimates that her house is only about “80 per cent as good” as it used to be prior to the transport accident;[132]
(hh) when asked what a normal day for her is in relation to right shoulder pain, she replied “when I get up in the morning, it would be around a three [out of ten]”. She said as she progresses through the day, depending on the activity, her pain can go up to five to six out of ten. On a good day where she might just sit around watching the television or Netflix, her pain might go down to a two out of ten. She said that she only sits around watching Netflix “If it’s raining and I’m not doing my voluntary work, but rarely”;[133]
(ii) prior to the transport accident, she was not the type of person that sat around watching daytime television;[134]
(jj) she was asked about the answers she had given in the questionnaires that she completed for Mr Large, where she had said, in relation to certain activities, that she did not have any or much trouble in undertaking that task. She explained that the reason she gave those answers was that she has changed the way she undertakes those tasks. For instance she now dresses differently, for instance by not wearing things that she has to put over her head. Instead she wears clothes that she can button up, such as button-up shirts or cardigans;[135]
(kk) she indicated that she has modified activities such as getting in and out of a car and the way she cuts up her dinner, because of the right shoulder pain. She would be unable to cut up meat for a casserole or cut up a lot of vegetables. That would cause pain in her right shoulder. She also said that where she had answered on the questionnaire that she was able to do her shopping easily, that this is because she had modified that activity, viz: “Well, I’ve got a left hand”.[136]
[126]T50, L11-12
[127]T51, L10-13
[128]T50, L21-31
[129]T51, L1-7
[130]T51, L8
[131]T51, L9
[132]T51, L14-16
[133]T51, L20-29
[134]T51, L30-31
[135]T51, L1-17
[136]TT52-53
The lay witness
31The plaintiff relied upon an affidavit from her husband, Mr Luke Bramston.
32The relevant evidence contained within the affidavit sworn by Mr Bramston is as follows:
(a) the plaintiff injured her right shoulder and arm in a transport accident on 21 January 2015. Since the transport accident, her right shoulder has been a constant and ongoing problem;[137]
(b) the plaintiff’s right shoulder injury impacts their sleep. He often wakes up during the night when the plaintiff is groaning in pain or moving around and trying to get comfortable. If she does not get enough sleep, the plaintiff becomes irritable and it causes tension between them;[138]
(c) they live on acreage and have a large garden with native trees out the front. There are also roses, hedging and lots of plants around the house. The plaintiff has always loved gardens and her father was a landscaper;[139]
(d) before the transport accident, the plaintiff would do most of their gardening, including the whipper-snippering and using the ride-on lawn mower. He has bought the plaintiff a small battery-operated whipper-snipper, as the old one was too painful for her to use. The plaintiff tries to do as much as possible, but she cannot really keep up with the gardening in the way that she used to. They now have to pay someone to do their gardening. This occurs about once per fortnight;[140]
(e) they purchased their property as preparation for their grandchildren. They were young grandparents and were about fifty-two years’ old when their first grandchild was born. The plaintiff had been looking forward to babysitting and having the grandchildren grow up and use the outdoor amenities at the house. The plaintiff tries to play outside with their grandchildren, but it causes a flare-up of her right shoulder pain. Her right shoulder injury has meant that she has far less ability to enjoy activities with their grandchildren;[141]
(f) the plaintiff is a very neat and tidy person. Before the transport accident, she cleaned the whole house. She now has difficulty using the vacuum cleaner and it takes her much longer to clean the house. They pay someone to clean their windows, as the plaintiff has difficulty using her right arm above her shoulder;[142]
(g) the plaintiff has trouble lifting heavy bags with her right arm. He helps her to unpack the groceries from the car and helps out around the house where he can.[143]
[137]Ex P1, p16
[138]Ex P1, p16
[139]Ex P1, p17
[140]Ex P1, p17
[141]Ex P1, p17
[142]Ex P1, p17
[143]Ex P1, p17
The medical evidence
33There were numerous medical reports contained in the tendered material. Both sides filed reports from medico-legal experts. A précis of the relevant medical materials is set out below.
The Plaintiff’s medical reports
34The plaintiff relied upon two reports from her general practitioner, Dr Michael Cocks, the first dated 15 October 2015 and the second dated 29 October 2023. In his second report, Dr Cocks noted that following the plaintiff’s shoulder surgery in 2015, the plaintiff described a 90 per cent improvement in her pain levels, with a small amount of pain after activity and a fairly good range of movement. This appeared to be stable for about six years; however, he noted that in November 2021, the plaintiff described six months of increased right shoulder pain and stiffness. She was reviewed by her surgeon, who arranged an MRI scan. This investigation showed that the surgical repair was stable. Physiotherapy was recommended.
35On 29 August 2023, the plaintiff again presented with continued aching in her right shoulder. She was referred for further physiotherapy. Dr Cocks noted that as at the date of the second report, the plaintiff described flare-ups of right shoulder stiffness and pain after activity involving her right shoulder. At that time, Dr Cocks was of the that view the plaintiff’s right shoulder condition did not appear to have stabilised.[144]
[144]Ex P1, pp39-40
36The plaintiff relied upon one report from Mr Wakeling, physiotherapist, dated 27 July 2022. In that report, Mr Wakeling set out his view that the plaintiff’s presentation in 2022 of continued right arm pain, was “a simple re-aggravation of an old injury”.[145] He viewed the plaintiff’s injury as a “textbook presentation of rotator cuff related pain”.[146] He noted that the plaintiff had stalled in her recovery since discontinuing physiotherapy. He noted that she had re-aggravated her shoulder further when lifting her dog into the boot of her car.[147]
[145]Ex P1, p28
[146]Ex P1, p28
[147]Ex P1, p29
37The plaintiff relied upon a report from Mr Garry Grossbard, orthopaedic surgeon, dated 26 March 2024. That report was provided for the benefit of both the plaintiff and the defendant’s lawyers. In that report, Mr Grossbard said that the plaintiff described pain in the right shoulder region, felt largely in the mid-arm area, occurring with reaching activities. He said that she described this as a “sharp pain which resolves rapidly”. He said that she reported “a constant ache in the upper arm and shoulder”. She tends to need to support her arm and has a feeling of tension in her neck. She reported occasional paraesthesia in her right arm affecting all fingers, particularly after excessive activity, such as sitting on her ride-on mower. This tends to resolve rapidly.[148]
[148]Ex P1, p44
38Mr Grossbard expressed the opinion that the plaintiff had suffered an injury to her right shoulder which involved a rotator cuff tear. He said she had undergone a successful rotator cuff repair decompression and excision of the acromioclavicular joint on the right side. She had regained a “fair proportion” of her shoulder motion, although it was noted that she still experiences minor restriction. He acknowledged that the plaintiff reported ongoing pain with certain movements, particularly when coming down from a fully-flexed position.
39Mr Grossbard thought that there was no significant rotator cuff weakness. He described the plaintiff’s arm symptoms as “short lived, occurring several times each week”. He noted that the plaintiff has difficulty with repetitive and forceful movements, such as when she is required to wash windows and floors. He said she had been able to resume a level of gardening, but has not been able to go back to her renovation work. He did not believe the plaintiff’s situation would change significantly in the foreseeable future. He thought the plaintiff would be restricted in her ability to undertake activity at or above shoulder height, including throwing balls and playing basketball with her grandchildren.[149]
[149]Ex P1, pp45-46
40The plaintiff relied upon two reports from Mr Richard Large, orthopaedic surgeon, the first report dated 26 November 2015 and the second dated 23 May 2024. The first was a report of the operation which was performed on the plaintiff’s right shoulder on 26 November 2015. The details of this operation were uncontroversial during this hearing.[150] In the second report, Mr Large noted that following the 2015 operation, he had no contact with the plaintiff for five years. She came back to see him in February 2022, reporting a recurrence of symptoms. On that occasion, investigations showed healing of the rotator cuff tendons, and he was of the view that there was “very little to explain where her symptoms were coming from”. Given that he had not seen the plaintiff for a period of two years at the time of writing the report, he was unable to make further comment.[151]
[150]Ex P1, p26
[151]Ex P1, pp47-48
41The plaintiff relied upon a report from Mr Andrew Weber, orthopaedic surgeon, dated 14 February 2015. In this report, Mr Weber recounted the symptoms which the plaintiff displayed when she first presented to him on 14 April 2015. The details of this presentation were not in dispute during this hearing.[152]
[152]Ex P1, p24
The Defendant’s medical reports
42The defendant relied upon a single report from Mr Viral Shah, orthopaedic surgeon, dated 2 December 2024. In that report, Mr Shah noted that following the plaintiff’s surgery, it took her around two to three years to recover. After that, she had a good outcome and was able to perform her day-to-day activities without issues. He confirmed that she had developed an addiction to Endone post-operatively, which she was able to address. He said that in 2021, she started to develop “niggles” in her shoulder, but described it as “nothing bad that could stop her from her activities”. He said she believed she had been doing “repetitive work”, including using a petrol whipper-snipper at this time. The plaintiff reported that the pain was mainly on the posterior aspect of the right shoulder, going into the proximal arm. The plaintiff said that a hot water bottle made the pain feel better. He said the plaintiff described her pain intensity in the shoulder as zero out of ten, but that it can go up to nine out of ten when she does manual work. He said the plaintiff described her pain as “it won’t stop me from day-to-day activities” and that she just continues working through the pain. He said she feels that sudden activities, especially reaching overhead, cause a twinge, and activities like loading the dishwasher and cleaning the bathroom cause clicking. He said that in 2021, the plaintiff reported she was able to continue with activities, including renovating and gardening; however, she noted increasing pain in the right shoulder to the extent she started getting help for her gardening. He noted that the plaintiff had subsequently seen her surgeon, Mr Large, who had done an MRI scan on the shoulder, which was normal. It was recommended that she see a physiotherapist.[153]
[153]Ex D1, pp6-7
43Dr Shah was of the opinion the plaintiff’s right shoulder condition affected her “minimally” and only in certain activities. He said the details of this were mentioned in the body of his report. He thought these injuries did not stop the plaintiff from performing her daily activities. He noted the plaintiff had modified certain activities, like using a battery-powered whipper-snipper rather than a petrol whipper snipper. He noted she is still an active volunteer.[154] He noted that the plaintiff reported that she is still able to do her day-to-day activities, including gardening, but that the next day she feels pain in her right shoulder. He said that from the plaintiff’s description, “it feels like the limitation is mild in her day-to-day activities. I do not believe that it affects her volunteer work.”[155]
[154]Ex D1, p16
[155]Ex D1, pp16-17
44The defendant also relied upon extracts from the plaintiff’s clinical records as follows:
(a) an entry dated 24 March 2015, contained in the treatment notes of Victoria Sports and Rehabilitation Clinic, Mount Eliza;[156]
(b) an entry dated 30 January 2015, contained in the treatment notes of Victoria Sports and Rehabilitation Clinic, Mount Eliza;[157] and
(c) entries dated 5 September 2022, 29 August 2023, 16 May 2024, 22 May 2024 and 4 June 2024 in the Cranbourne Road Medical Centre progress notes.[158]
[156]Ex D1, p38
[157]Ex D1, p45
[158]Ex D1, pp84-92
45It was submitted that in summary, the clinical records relied upon show that in the period 5 September 2022 to 29 August 2024, the plaintiff obtained:
(a) one prescription for Panadeine Forte on 5 September 2022;
(b) two further prescriptions for Panadeine Forte in 2023, the first being prescribed on 29 August 2023 and the second on 22 December 2023; and
(c) one further prescription for Panadeine Forte on 16 May 2024, in the context of complaining of knee pain.[159]
[159]See email received from counsel for the defendant and copied in to all other legal representatives of the parties, dated 24 February 2025 at 4.29pm
46It was acknowledged by counsel for the defendant that under cross-examination, the plaintiff had given evidence that she was last prescribed Panadeine Forte and Valium by her general practitioner before Christmas in 2024. It was accepted that these prescriptions are not reflected in the medical records referred to by the defendant, as the available progress notes of the Cranbourne Road Medical Centre did not cover the period beyond 29 August 2024. Counsel for the defendant also conceded that no issue was taken with the accuracy of the dates of medical consultations which were set out in an amended chronology filed by counsel for the plaintiff at the conclusion of the hearing.[160]
[160]See email received from counsel for the defendant and copied in to all other legal representatives of the parties, dated 24 February 2025 at 4.29pm; see also amended chronology attached to the same email which was marked following the hearing as Ex P2
The issues
The Plaintiff’s credit
47The plaintiff’s credit was not seriously challenged during cross-examination; however, her ability to keep performing her activities of daily living and the true extent of the injuries which she says are related to the transport accident was explored in detail. The plaintiff’s evidence in this regard has been set out above.
48Having had the benefit of observing the plaintiff while she was giving evidence to the Court, I formed the view that she was an honest and cooperative witness who appeared to be doing her best to give accurate responses to the questions asked of her. During cross-examination she gave cogent explanations in relation to all of the issues on which she was challenged. An example of this is her evidence that she is able to perform some whipper-snippering activities with the battery operated whipper-snipper, because it is lighter, she is attending to a much smaller area of garden and she has adopted a particular stance when using that device, namely tucking her right arm close in to her body to support it and prevent further injury. Despite this, she still suffers pain in her right arm when she undertakes this activity and has to limit the amount of time for which she performs this activity. I accept this evidence without hesitation. I consider that at all times, the plaintiff gave her evidence openly and without embellishment. In addition, she made concessions where necessary, many of which were adverse to her own interests.
49Furthermore, I find that the plaintiff’s account of events has remained consistent throughout the period in which she has seen her treating medical practitioners, consulted with medico-legal advisers, and provided evidence to this Court.
50After a consideration of all of the evidence, particularly the evidence of the plaintiff as corroborated by the evidence of her husband and the content of the medical records, I consider that she was a credible witness, in the sense of being a truthful person. At no time did I gain the impression that she was attempting to mislead the Court or to exaggerate her symptoms in any way. If anything, it was my conclusion that the plaintiff has a tendency to understate her symptoms from time to time, as evidenced by her husband’s assessment of her state of health since the transport accident and her ability to perform many tasks, by reason of the consequences which her injury has had for her.
Stoic plaintiff
51Having considered all of the relevant evidence, I formed the view that the plaintiff has been extremely stoic in relation to managing the right shoulder injury which she sustained in the transport accident.
52I note that despite suffering from the debilitating effects of this injury for a number of years, the plaintiff has taken numerous steps to continue living her life and interacting with her family and friends, especially her grandchildren, as best she can.
53I find that despite the consequences of the injury to her right shoulder and arm, which she has suffered daily since the transport accident, she has worked hard to rehabilitate herself and has continued to perform as many of her usual domestic and social activities as she is able to, albeit in a modified way. I note the plaintiff’s evidence about this, and find that the reason why she has been able to continue to engage in these activities is that she has dramatically modified the way in which she approaches these tasks, whether it be to break them up into smaller segments, to do them for less time, to use her left hand rather than her right hand to perform the tasks or to sit or lie down while performing those activities. Sometimes it is a combination of all of these things. I also accept the plaintiff’s evidence and find that she seeks assistance from her husband when needed and takes medication, albeit sparingly, to try to address the pain which she experiences. I accept her evidence and find that she is unable to do many of these tasks as frequently or as easily as she could prior to the transport accident. In relation to some of these tasks, I find that she has had to modify the way in which she carries them out, including by using her non-dominant hand to perform them. I note her evidence and find that on occasion, the level of pain that she experiences in her right shoulder means that she is just not in the mood to socialise. On these occasions, she does not attend social functions or activities.
54In relation to interacting with her grandchildren, which is something that is extremely important to her, I find that while she has tried to stay as engaged as possible with her grandchildren, she has had to limit and/or modify these activities dramatically, in a way that she had not anticipated when she planned for being a young and interactive grandparent. I accept her evidence and find that this causes her distress. In relation to her love of gardening to which she deposed and which was evident from the way in which she described it, I find that she has also had to modify this activity, including contracting the work out to others who are able to perform it on her behalf, by reason of the large amount of land which needs to be managed. I accept her evidence and find that she still is able to perform smaller tasks such as trimming hedges and similar activities close to her house, which part of the garden is comprised of a much smaller area. I also accept her evidence and find that she has had to modify the way in which she carries out even these smaller tasks, so that they do not cause her too much pain in her right arm.
Compensable injury
55The details of the occurrence of the transport accident are not in dispute.
56Having considered all of the evidence from the plaintiff’s treating doctors, as well as the medico-legal experts on each side, I am satisfied that as a result of the transport accident, the plaintiff suffered an organic injury to her right upper limb, in the form of a rotator cuff tear, surgically repaired.
Is the compensable injury permanent for the purposes of the Act?
57Having considered the relevant reports including the reports from Mr Grossbard,[161] and Dr Shah,[162] I find that the plaintiff is likely to suffer from the consequences of the injury she sustained to her right upper limb, for the foreseeable future. Given this, I find that the injury is permanent for the purposes of the Act.
[161] Ex P1, p46
[162] Ex D1, pp 16-17
Are the consequences to the plaintiff of the transport accident “serious”?
58In Haden Engineering Pty Ltd v McKinnon,[163] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of any injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of those consequences, as well as the disabling effect of the consequences on plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[164] Part of the process is for the Court to assess the nature and extent of the consequences which the plaintiff experiences. As set out above, ultimately the question of whether an injury satisfies the relevant test under the Act, is one of impression or value judgement. The weight to be attached to the plaintiff’s account of the consequences experienced will depend upon an assessment of the plaintiff’s credibility.[165]
[163](2010) 31 VR 1
[164]ibid at paragraph [9]
[165]ibid at paragraph [12]
59I have already made observations about the plaintiff’s demeanour and presentation in Court. In particular, I have found that the plaintiff was a truthful and credible witness. I have also found that the plaintiff has been stoic in her approach to managing the injury to her right upper limb.
60The fact that the plaintiff has been prepared to keep working in a volunteer capacity and continues trying to undertake her household duties and some home maintenance activities, is not a matter that tells against the granting of her application. To use the words of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2):[166]
“… it would be unfortunate, and in my view wrongheaded, if … such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[166][2008] VSCA 260 at paragraph [3]
61In Kelso v Tatiara Meat Co Pty Ltd,[167] the Court observed that:
“… chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain, requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[167]Supra at paragraph [199]
62I have set out above the consequences which the plaintiff’s injury to her right upper limb has had on her day-to-day life. I have made findings which support the conclusion that pain in the plaintiff’s right upper limb is a prominent feature of the plaintiff’s life. While she tries not take too much prescription medication for this condition, the evidence indicates, and I find, that she must frequently take medication, including prescription painkillers, and also engages in other forms of pain relief, including obtaining assistance with particular tasks as needed and avoiding doing activities in a way which would aggravate her right upper limb pain, in order to manage this pain. The evidence indicates, and I find, that her sleep is frequently interrupted and that she frequently takes prescription medicine to help her get to sleep. The evidence also indicates, and I find, that she has had to modify the way she sleeps, to try to avoid causing pain in her right arm. The evidence satisfies me, and I find, that the plaintiff’s right upper limb pain adversely affects nearly every aspect of her day-to-day life.
63Given this, I am satisfied to the requisite standard that taken together, these matters constitute consequences which are “very considerable and certainly more than ‘significant’ or ‘marked’”.
Conclusion
64As set out above, I am satisfied, to the requisite standard, that as a consequence of the transport accident, the plaintiff suffered a “serious injury”, as defined in the Act, in the form of an injury to the function of her right upper limb. In those circumstances, the application is granted.
65I will hear the parties in relation to the question of costs.
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