Brancatisano v Transport Accident Commission
[2019] VCC 69
•8 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-16-04525
| ANTONIO BRANCATISANO (a person under disability who sues by his Litigation Guardian, MARY BRANCATISANO) | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 January 2019 | |
DATE OF JUDGMENT: | 8 February 2019 | |
CASE MAY BE CITED AS: | Brancatisano v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 69 | |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986 – s93(17) – single vehicle accident essentially involving alleged speed and sudden braking – plaintiff and wife passengers in vehicle – alleged injury to plaintiff’s left shoulder and lower back – plaintiff has a history of serious mental health problems requiring a lengthy period of hospitalisation – plaintiff alleges substantial recovery approximately 2 years prior to accident – subsequent deterioration to the extent that litigation guardian appointed – no challenge as to this – similarly, no challenge to proposition that plaintiff unable to give evidence – evidence given by plaintiff’s wife – whether statutory test satisfied in relation to each injury – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Ruddle | Arnold Thomas & Becker |
| For the Defendant | Mr G Lewis QC with Ms A Wood | Solicitor to the Transport Accident Commission |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s93(4)(d) of the Transport Accident Act 1986, (hereinafter referred to as “the Act”). In bringing his claim, the plaintiff relies upon paragraph (a) of the definition of “serious injury” found in s93(17) of the Act.
2 At the outset, counsel for the plaintiff made the following matters clear:
(a) The plaintiff, Mr Antonio Brancatisano and who is seeking the serious injury certificate, would not be giving evidence. The plaintiff’s wife, Mrs Mary Brancatisano, was, by consent, appointed his litigation guardian by Judicial Registrar Gurry, proposed orders having been signed on 15 June 2017 and the actual orders being made on 31 July 2017. I might add that it is clear from the material filed in support of the consent orders, and in particular a report from Dr Ben Harris, clinical neuropsychologist, that the plaintiff has features of severe dementia and has a severe cognitive disability secondary to that. It is the strong opinion of Dr Harris that the plaintiff does not have the capacity to manage his legal and financial affairs by reason of the severity of his cognitive disability. Dr Harris also expressed the opinion that, because of the plaintiff’s severe cognitive disability, he did not have the capacity validly to swear an affidavit in relation to the accident and its subsequent consequences. In any event, counsel for the plaintiff stated at the outset that Mr Brancatisano would not be giving evidence, but that evidence in relation to his application would be given by his wife and litigation guardian, Mrs Mary Brancatisano. Sensibly, there was no opposition to the case being conducted in this way. I would refer to Transcript (hereinafter referred to as “T”) 1 and 2. In fact, Mrs Brancatisano was the only witness to give oral evidence. Further, the only affidavit filed in support of the application is that of 11 January 2019, it being sworn by Mrs Brancatisano.
(b) It was also made clear at the outset that, in seeking a serious injury certificate, the plaintiff was relying upon paragraph (a) of the definition contained in s93(17) of the Act. In particular, he was relying firstly upon injury to his left shoulder and secondly upon injury to the low back. Again, I would refer to T1 and 2. The injury initially mentioned in counsel for the plaintiff’s opening address was one to the left shoulder. An injury to the lower back was mentioned subsequently. The impression gained in both opening and closing addresses on behalf of the plaintiff is that perhaps greater emphasis was being placed upon the left shoulder injury – see, for example, T73 – 75. This is of some significance, as cross-examination of Mrs Brancatisano, whilst covering a range of injuries and conditions, seemed to me to be directed much more to the condition of the low back than to that of the left shoulder, although the condition of that shoulder did receive some modest attention in the closing address on behalf of the defendant.
3 The plaintiff’s claim arises from an alleged single vehicle accident on 30 September 2015. Whilst it was more in the nature of an incident in that the bus in which the plaintiff and his wife were passengers did not collide with any other vehicle or, on the basis of the bulk of the evidence, with any object, what occurred shall hereinafter be referred to as “the accident”. Essentially what is alleged to have occurred involved excessive speed followed by sudden braking in the vicinity of a roundabout. Ultimately there was no real challenge to the fact of the occurrence of the accident. For example, the issue of whether it occurred did not warrant a mention by way of a challenge in closing addresses. Mrs Brancatisano could not recall ever suggesting that the bus hit the kerb (see T20), but basically nothing hinges upon this. The severity of what occurred and the consequences thereof were certainly challenged.
4 Mr M Ruddle of Counsel appeared on behalf of the plaintiff. Mr G Lewis QC with Ms A Wood of Counsel appeared on behalf of the defendant. Mrs Brancatisano gave oral evidence, including the adoption of her affidavit as being true and correct, and was cross-examined. The remainder of the evidence, including numerous sets of clinical notes, was documentary in nature and was tendered either by consent or without opposition.
Factual background
(a) The plaintiff’s background prior to the accident
5 The plaintiff is aged 80 years, having been born on 8 September 1938 in Italy. He came to Australia when he was 16 years of age. He is a married man with three adult children and a number of grandchildren. With his wife, he built up a successful family fruit and retail business. He is right handed. The state of the plaintiff’s health prior to the accident and his history in this regard shall be discussed subsequently.
(b) Mrs Brancatisano as a witness
6 I accept Mrs Brancatisano as a witness who did her best to give accurate evidence. The plaintiff’s history of treatment and hospitalisation over the years is lengthy and complex. Mrs Brancatisano has been deeply involved in this and has attended countless medical appointments and the like with him. For the last few years, he has not been in an institution but has been at home. He attends upon his general practitioner essentially every week and she takes him to such appointments. That she may not be one hundred percent accurate as to what occurred or was said at various appointments is only to be expected. However, she did have quite good recall and I accept that she did her best to answer questions honestly. When it came to other matters such as the plaintiff’s activities pre- and post-accident, the relevant physical restrictions which have affected him since the accident and matters of that nature, I have no reason to disbelieve her and accept her evidence as being truthful and largely, if not completely, accurate. Further, I would point out that she is what could be described as being in an almost unique position to give evidence concerning the state of her husband’s health, restrictions, treatment and the like in the years leading up to the accident, as well as his capacity, restrictions and the like since the accident. Apart from the plaintiff himself (and he is unable to give such evidence), it is hard to think of anyone who would be in a better position. That is particularly so in relation to the day-to-day situation. As she has sworn in her affidavit of 11 January 2019, the plaintiff has lost the ability to communicate in the English language. The uniqueness of the position of the closest family member in relation to communication in such circumstances is well known in brain damage cases and the like.
7 In addition, I am not of the view that there is any evidence to suggest that the credit of the plaintiff himself has been damaged in any way. In other words, in this unusual case, I have no reason to have any misgivings concerning the honesty of any description of symptoms and consequences given by the plaintiff to his wife or to medical examiners. For example, Dr Andrew Gibbs, clinical neuropsychologist, who examined the plaintiff at the request of the defendant, described him as being cooperative, socially appropriate, pleasant and polite. He was described as being a sparse historian who spontaneously reported a sore back and sore left shoulder. Dr Peter Drysdale, consultant psychiatrist, who treated the plaintiff, apparently upon referral from one of the plaintiff’s treating general practitioners, Dr Ignatius Cannizzo, described the plaintiff as being alert, pleasant and cooperative. Incidentally, Dr Altaf Kazi, who, as a treating general practitioner, saw the plaintiff, with his wife, a multitude of times when the plaintiff was resident in the Point Cook area between approximately May 2014 and January 2018, described the plaintiff and his wife in the following terms:
“His wife is a wonderful carer and he remains obedient to her.”
Professor Peter Teddy, neurosurgeon, to whom the plaintiff was referred by Dr Kazi and who felt that surgical intervention was not appropriate, in his letter of 10 May 2016 to Dr Kazi, stated the following:
“Mr and Mrs Brancatisano are a very lovely couple and I hope very much we will be able to help.”
In short, the impression made upon me by Mrs Brancatisano in relation to credit and reliability was certainly a favourable one and, whilst I have not seen the plaintiff, I have absolutely no reason to question anything related to the relevant injury which he may have recounted to his wife or to medical examiners.
(c) The state of the plaintiff’s health prior to the accident
8 As stated, the plaintiff’s medical history is lengthy and complex. He first came under the care of Dr Peter Drysdale, consultant psychiatrist, in November 2004. Thereafter, various diagnoses were made. When seen by Dr Drysdale in June 2009, the plaintiff was forgetful, with poor recall of people’s names and recent events. Dr Drysdale noted that there was a past psychiatric history of depression. Cognitive examination revealed mild depressive symptoms, but also memory difficulties and mild frontal lobe difficulties. Dr Drysdale was concerned that this may have represented the early development of a neuro-degenerative disorder. In August 2010, the plaintiff’s then general practitioner, Dr Ignatius Cannizzo, referred the plaintiff to Associate Professor John Drago, consultant neurologist. In his report of 18 August 2010 to Dr Cannizzo, Associate Professor Drago referred to the plaintiff as having gone down significantly, losing his capacity to attend to his activities of daily living, suffering from florid hallucinations and having developed significant Parkinsonian features. It would also seem that in 2009 the plaintiff had experienced right shoulder pain which required surgery. It is apparent that, between 2009 and 2013, the plaintiff was in a nursing home for a considerable period of time. At least by April 2014, if not earlier, Associate Professor Drago had diagnosed the plaintiff as suffering from an underlying neurological condition, which he believed to be cortical Lewy Body Disease. This is a diagnosis with which Associate Professor Richard Stark, neurologist, examining at the request of the defendant, essentially agrees. He also does not disagree with a diagnosis of Parkinson’s disease. In any event, the plaintiff seems to have been confined to a nursing home from approximately 2009 until 2013.
9 I accept that the plaintiff’s general condition improved quite dramatically in late 2013. As Mrs Brancatisano put it, “Then they stopped one medication and from 2013 onwards he was a total different person” – see T28. The plaintiff was living a normal life. That there had been such an improvement is confirmed in the letter of 17 April 2014 from the treating consultant neurologist, Associate Professor Drago, to Dr Cannizzo. In that letter, Associate Professor Drago stated as follows:
“It was a pleasure to review Antonio today with his wife Mary and two children. He is a different person to the person I saw in November last year. Tony is warm and engaging. Mary tells me that he is doing a lot for himself. He is apparently feeding himself and dressing and showering … My assessment looking at Tony today is that he would be fine to be living at home with Mary looking after him.”
10 In a report to Dr Kazi of 22 January 2015, Associate Professor Drago stated that the plaintiff:
“… is doing very well and there is no need to change any medication or change his social circumstances. He presents well and he is independent in his day-to-day personal needs and helps Mary with housework and goes for walks and interacts socially with friends.”
11 A further report of 15 July 2015 to Dr Kazi refers to the plaintiff as doing very well at home and remaining independent in activities of daily living. Of course, this report pre-dates the accident by only six weeks.
12 I also note an entry in the clinical notes of the surgery at which Dr Kazi is based on 30 June 2014 to the following effect:
“… had been in the nursing home for a while until a fall when everything changed for the better and now he is back home doing all he used to do.”
As I understand the sequence of events, the fall precipitated a change in medication, following which the plaintiff improved dramatically. He was then able to return home and I would refer to the observations set out above.
13 Dr Kazi noted on 14 July 2014 that the plaintiff was doing well and was happy. It is apparent from such notes that there followed some domestic dispute which involved the plaintiff’s sons and litigation. Dr Kazi noted on 5 December 2014 that the plaintiff was doing well and recorded on 6 January 2015 that the plaintiff went out on New Year’s Eve. On 29 March 2015 it was again recorded that the plaintiff was doing well. There had been some recent stresses in relation to his sons. He was again recorded as doing well on 12 May 2015, and I note that there was subsequently further problems of major concern in relation to his sons. Interestingly, on 23 August 2015, one week before the accident, Dr Kazi noted that the plaintiff’s wife was sick and that the plaintiff was looking after her. He was depressed at this time and a court case was imminent.
14 I also note that Associate Professor Richard Stark, neurologist, examining the plaintiff at the request of the defendant, in his report of 26 June 2018 stated as follows:
“The pre-existing condition has clearly impacted on his activities of daily living and social and recreational activities to the extent that he did, at one stage, require nursing home care. He demonstrated however, a remarkable improvement in his symptoms and was living independently in the community prior to the accident.”
15 I have gone into the question of the plaintiff’s much improved health and capacity between late 2013 and the time of the accident at some length. This is in part because there was an argument as to whether the plaintiff’s pre-accident health and capacity was an issue that should not be considered on this application, but related to damages to be dealt with at a subsequent trial, or, as argued by Mr Lewis, whether the claimed orthopaedic injuries should be placed “… into the context of other problems the plaintiff may have” – see T81. In this regard, he referred to the decision of the Court of Appeal in Bezzina v Phi and Transport Accident Commission [2012] VSCA 161. Without going into this debate at any great length, certainly in Bezzina, the Court of Appeal stated that, when examining the consequences of the claimed serious injury, the application of the appropriate test included looking at and considering the effect, and likely effect in the future, of the applicant’s pre-existing injuries. No reason as to why this statement as to the law should not apply was put before me.
16 However, in the present case, I accept that the plaintiff has some major underlying health problems, which had previously manifested themselves and which have not gone away. However, I also accept the medical evidence and the evidence of Mrs Brancatisano that, following the change in medication in late 2013, and, prior to the accident, the plaintiff’s health was much improved. For example, I would refer to the evidence of Mrs Brancatisano at T55 and following pages to the effect that the plaintiff was socialising, cooking, gardening and the like prior to the accident and that “we did everything normal … He could do everything on his own.”
17 In short, I accept that, whilst the insidious conditions from which the plaintiff suffers may well have overtaken him again since, in the period prior to the accident he was much improved and living close to a normal life for a man of his years. That is subject to the following.
18 I accept that the plaintiff had suffered from some low back pain for a number of years. The clinical notes of Dr Kazi contain a number of references to low back pain prior to the accident. The plaintiff informed Adjunct Professor Peter Boys, orthopaedic surgeon, examining on behalf of the defendant, that he previously had “a bit of pain” with symptoms referable to the lumbar spine, at least in 2014 and 2015, and I note that a CT scan was performed on 7 March 2015, this revealing prominent disc degeneration. However, I also accept that the plaintiff’s low back symptoms have been very markedly worse since the accident.
19 In relation to the plaintiff’s left shoulder, it is not suggested that he suffered any prior injury or symptoms before the accident. He had undergone surgery to the right shoulder and was continuing to use Norspan patches, which were frequently prescribed in the period leading up to the accident. I note that Adjunct Professor Boys effectively expressed the opinion that the plaintiff had post-traumatic osteoarthritis of the right shoulder. Dr Boys was aware of the previous surgery. If the existence and effect of the right shoulder condition is taken into account, what could be described as the other side of the coin is that the plaintiff, already having an injured right shoulder, suffered in the accident injury to his previously symptom-free left shoulder.
(d) Other developments since the accident
20 Leaving to one side the consequences of the physical injuries suffered in the accident, the plaintiff’s health generally has deteriorated. As is evident from the appointment of the litigation guardian and the supporting material from Dr Harris, the plaintiff has suffered cognitive deterioration as a result of the progress of his dementia. The opinion of Dr Harris is that the plaintiff does not have the capacity to manage his legal and financial affairs and there would seem to be little argument concerning this. The physical consequences of the accident in terms of injury to the left shoulder and to the low back have to be viewed separately to the problems associated with the cognitive disease.
21 I also appreciate the potential argument that the pain and suffering consequences of the relevant physical injuries may have to be viewed in the context of a person already suffering from a progressive neurological and mental condition. In other words, I appreciate that there can be an argument based upon the proposition that the defendant must take the plaintiff as it finds him. For example, there is authority for the proposition that a supervening event or condition should not be taken into account for the purpose of fixing a representative figure for earning capacity – see Acir v Frosster Pty Ltd [2009] VSC 454. Arguably a similar approach should be adopted in the present situation. In Acir, J Forrest J effectively accepted an argument that questions of non-work-related supervening events are not to be considered in the course of a serious injury determination, the role of such events being confined to the assessment of damages in the ultimate common law proceeding. There are some parallels to the present situation.
(e) The injuries, their treatment and diagnoses and Rulings
22 I shall deal with the injuries relied upon separately, commencing with that to the left shoulder.
(i) The left shoulder injury
23 I accept that the plaintiff suffered injury to his left shoulder in the accident and that he had previously been symptom free in that regard. In his report of 30 January 2016, Dr Kazi referred to the plaintiff as suffering as a result of the accident pain in the shoulder joints. His clinical note of 13 November 2015 includes reference to the plaintiff suffering from left shoulder pain and right hip pain “worst since bus accident”. When Dr Kazi saw the plaintiff on 16 November 2015, he recorded that the plaintiff was “crying of pain last night”, going on to refer to x‑rays of the shoulder and to lumbar spine disc degeneration. The clinical note of 18 March 2016 refers to pain in both shoulders and “left is worst”. The next such note, on a date which is not clear but it is to be remembered that the plaintiff and his wife were visiting Dr Kazi on approximately a weekly basis, gives the reason for contact as being “Left Supraspinatus Tendon Tear – Partial”. There is also reference to the fact that diagnostic imaging has or will be requested. There is a further reference to left shoulder steroid injection. It is apparent that, on 16 November 2015, an x‑ray was taken of the plaintiff’s left shoulder. Amongst other things, this revealed moderate AC joint degenerative arthrosis and severe osteoarthritis involving the interior aspect of the glenohumeral joint, characterised by articular margin irregularity as well as marginal osteophyte formation. The radiologist also observed that, “surprisingly”, the subacromial space itself remained satisfactory.
24 On 24 March 2016, the plaintiff underwent an ultrasound of the left shoulder. The conclusion of the radiologist was one of left supraspinatus and subscapularus tendinosis, with a small partial thickness articular surface supraspinatus tendon tear. There was no evidence of associated subacromial bursitis or impingement, but there was mild long head of biceps tenosynovitis.
25 On 18 November 2016, the plaintiff underwent an ultrasound guided injection of the left shoulder, the clinical notes indicating that this was because of left shoulder pain. On scanning, the subacromial bursa appeared marginally thickened and was targeted. Further, the left subacromial bursa space was injected using ultrasound guidance.
26 In relation to the plaintiff’s left shoulder condition, Dr Kazi, in his report of 17 January 2019, expressed the view that he was unable to state that the injury to the left shoulder was directly related to the accident, but the accident may have caused damage to the left shoulder during an attempt by the plaintiff to stabilise his sitting position during the occurrence of the accident. He did not fall, but his seat belt was on.
27 I note that Dr Peter Boys, consultant orthopaedic surgeon, examining the plaintiff at the request of the defendant, expressed the view that the plaintiff had suffered a soft tissue strain to the left shoulder and in all probability a partial degenerative tear of the left rotator cuff occurring in the manner described – that is, in the accident. He went on to state that the injury to the left shoulder had occurred in the context of constitutional degenerative change, with osteoarthrosis of the acromioclavicular and glenohumeral joints evident. He considered that the plaintiff’s left shoulder condition was stable. Dr Boys also made the following observation:
“Specific to this incident however this gentleman has suffered pain, and in all probability some restriction of function of the left shoulder occurring in the context of pre-existing limitations of movement of the right shoulder subsequent to earlier treatment for septic arthritis. Incapacities appear to be permanent.”
28 Whilst the shoulder injury was not of a neurological nature, Associate Professor Richard Stark, neurologist, also examining on behalf of the defendant, took a history of pain in the left shoulder and a restricted range of motion. He commented that, whilst the shoulder problem was not a neurological issue, there was restriction in the range of motion of the left shoulder.
29 Dr Rohan Wee, consultant geriatrician, examined the plaintiff at the request of the defendant. He expressed the view that, in the accident, the plaintiff suffered an exacerbation of his back pain, together with the onset of left shoulder pain and exacerbation of pre-existing right shoulder pain. He considered that the plaintiff had decreased function in his shoulders, referring to the fact that there had been underlying tendon damage done and that the plaintiff was likely to have some ongoing pain and reduced function in the shoulders. He also referred to the plaintiff’s seeming to have had a clear exacerbation of back and shoulder pain following the accident.
30 In her affidavit of 11 January 2019, Mrs Brancatisano swore as follows:
“18. Antonio complaints of constant and high pain in his left shoulder. I rarely observe him using his left arm and often see him using his right arm to lean on the frame. I cannot recall seeing Antonio lift his left arm over his head since the transport accident.
19. I have to be careful of Antonio’s left shoulder when dressing or showering him. If I lift his left arm too high, he screams in pain. If he rolls onto his left side in bed, he will wake up in pain and I will have to assist him in rolling back onto his back.
20. After the accident and before Antonio’s condition deteriorated to the extent where he became completely reliant on me, Antonio stopped cooking and he told me this was because he could no longer lift the pots and pans with his left arm.
21. Antonio does not lift items of any substantial weight with his left hand. After the accident, I recall occasions when I tried to ask him to assist me with the grocery bags and he complained that it hurt his left shoulder. I no longer ask him to assist me, I hang grocery bags on his walking frame.
22. Antonio used to do the gardening but can no longer do this as a result of his left shoulder injury.”
31 Mrs Brancatisano was not challenged in relation to any of these assertions. I see no reason why they should not be accepted in full and I do so. In a situation where the plaintiff is unable to speak for himself, I accept that they represent a true account of pain and problems associated with his left shoulder injury.
32 I also note that, in the report of Dr Cannizzo of 7 November 2016, he refers to the fact that the plaintiff described to him many problems in relation to persistent pain, especially affecting the left shoulder and lower back. I appreciate that Dr Cannizzo has referred to the left shoulder and lower back injuries and their consequences collectively, and I do not interpret the word “especially” as referring only to the left shoulder. However, the overall impression created is consistent with the assertions of Mrs Brancatisano in her affidavit.
33 In short, I accept the sworn and effectively unchallenged evidence of Mrs Brancatisano as set out in the paragraphs of her affidavit to which I have referred.
34 In summary, I accept that, against the background of the plaintiff already having problems in relation to his right shoulder, he suffered injury to the left shoulder which was one of supraspinatus and subscapularis tendinosis and with a small partial thickness articular surface supraspinatus tendon tear. I accept that the condition was asymptomatic prior to the injury. Thus, whilst what occurred may have been at least partially the aggravation of a pre‑existing condition, I accept that it was asymptomatic prior to the accident. The matters to which I have referred above, such as the affidavit evidence of Mrs Brancatisano, post-date the accident and are consequences which are directly attributable to it.
35 I also accept that the consequences of the impairment or loss of function of the left shoulder are long-term within the meaning of definition. Effectively the contrary was not suggested. Adjunct Professor Boys, consultant orthopaedic surgeon examining on behalf of the defendant, has stated as follows:
“Specific to this incident however this gentleman has suffered pain, and in all probability some restriction of function of the left shoulder occurring in the context of pre‑existing limitations of movement of the right shoulder subsequent to earlier treatment for septic arthritis. Incapacities appear to be permanent.” (My underlining)
36 In his report of 2 November 2017, and in the context of discussing the plaintiff’s spine and left shoulder joint pain, Dr Kazi stated that the prognosis was poor and that the conditions are now likely to have stabilised.
37 In short, I accept that the consequences of the accident, in so far as they involve the left shoulder condition, represent an impairment which is long-term within the meaning of the Act and nothing of substance was advanced to the contrary.
38 Whilst it is a complex medical situation which exists, there is nothing before me to suggest that the consequences of the organic injury to the plaintiff’s left shoulder have resulted in sequelae of a psychological or psychiatric nature and this was not argued. No reliance was placed upon the decision in Richards & Anor v Wylie [2000] VSCA 50 and there was no argument concerning this. In any event, I find that the consequences of the left shoulder injury are organic in nature.
39 Bearing the above in mind, it seems to me that the plaintiff has discharged the burden of proof in relation to the consequences of his left shoulder injury. I am satisfied that the applicable test, as set out in Humphries & Anor v Poljak [1992] 2 VR 129, has been satisfied. In other words, I am of the view that the requirements of the “very considerable” test have been met.
40 The presence of a constant, high level of pain in the shoulder is a matter of importance. As was said by the Court of Appeal in Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
41 It is also apparent from the affidavit of Mrs Brancatisano that there is interference with the plaintiff’s sleep when he rolls onto his left side when in bed. In Haden Engineering v McKinnon (2010) 31 VR 1, Maxwell P stated as follows:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep.”
42 Indeed, since the accident the use of the plaintiff’s left arm has been greatly reduced, if not largely eliminated. As set out above, Mrs Brancatisano has rarely observed him using his left arm and cannot recall seeing him lift his left arm over his head since the transport accident. This is obviously a major restriction.
43 As earlier stated, Mrs Brancatisano seems to me to have been placed in virtually a unique position in relation to commenting upon the pain and suffering which the plaintiff has been enduring in relation to his left shoulder injury. I accept her evidence as to the consequences of which she is aware and which she has observed.
44 I would make two further observations. Firstly, whilst the plaintiff is now aged 80 years, he has already been suffering the consequences referred to for well in excess of three years. Amongst the hundreds of pages of medical material, the only estimate of his life expectancy which I could find is that of Dr Harris in his report of 21 March 2017. It is to be remembered that Dr Harris is a neuropsychologist and that his report essentially was obtained in relation to the issue of the plaintiff’s capacity to swear affidavits and was relied upon in the ultimate application for the appointment of a litigation guardian. The observation of Dr Harris was that the existence of probable Lewy Body Disease suggested that the plaintiff’s life expectancy would be no more than five to 10 years. Given the date of that assessment, if it were to be adopted, the plaintiff’s life expectancy would now be in the range of three to eight years. In other words, if that estimate of life expectancy is accepted, the situation is that the plaintiff, in the later years of his life, has already had to endure the pain described for almost 3 ½ years and may well have to endure it for a similar period in the future or for considerably longer.
45 Secondly, I would again point out that the plaintiff had already undergone right shoulder surgery and was on quite strong medication, essentially by way of Norspan patches, in relation to symptoms in that shoulder. For example, I would refer to the evidence of Mrs Brancatisano at T32 – 33, T47 and T49. As I understand it, the plaintiff underwent three bouts of surgery to the right shoulder and was on strong medication in relation to it thereafter. There is no suggestion that he was suffering symptoms in the left arm or shoulder prior to the accident. In the accident, what could be described as his “good arm” received the injury described and this has produced the symptoms to which reference has been made. Arguably the problems in relation to the right shoulder add another dimension to the consequences of the left shoulder and arm injury. I am not saying that this a decisive factor, but it seems to me something which should be borne in mind.
46 In summary, in relation to the injury to the left shoulder, I am satisfied that the “very considerable” test has been satisfied in that the pain and suffering consequences endured by the plaintiff meet the requirements of the test in Humphries & Anor v Poljak.
(ii) The injury to the low back
47 Given that I have found that the plaintiff has discharged the burden of proof in relation to the left shoulder injury, it is probably unnecessary for me to make a specific finding in relation to the low back injury. However, were it required, I would be of the view that the requirements of the test in Humphries & Anor v Poljak have again been met. Whilst there is no argument but that the plaintiff suffered from some pre‑injury low back pain, the consequences of the accident by way of aggravation and exacerbation of the pre‑existing condition seem to me to be of sufficient magnitude to satisfy the test. In her affidavit, Mrs Brancatisano referred to the fact that, since the accident, the plaintiff complains of constant pain in his back. He has been wearing only slip-on shoes, because he was in too much pain to bend down and put on proper shoes. In her oral evidence, Mrs Brancatisano stated that, following his rapid improvement and discharge from care, the plaintiff was only complaining of “very minor” back pain – see T29 and T33 and following pages. She also described how at times the plaintiff screams out, holds his low back and falls where he is – see T52.
48 In any event, as stated, given my finding in relation to the plaintiff’s left shoulder, there is no necessity for me to give any detailed ruling or make any specific finding in relation to the low back injury.
Conclusion
49 I would refer to the decision of the High Court of Australia in Transport Accident Commission v Katanas [2017] HCA 32. In particular, I would refer to paragraphs 26 and 27 and what was described as:
“… the long-recognised reality that the application of the narrative test is in the end likely to turn ‘on the opinion of a judge familiar with a range of conditions within which the instant condition occurs’ and thus upon the judge’s conclusion as to the “side of the line” on which the case may fall.”
50 I would hope that I meet the description of “a judge familiar with a range of conditions within which the instant condition occurs.” In the present case, my conclusion, specifically in relation to the left shoulder injury is that the “side of the line” upon which the case falls is that the plaintiff has discharged the burden of proof. He has satisfied me that the consequences from which he suffers are “serious” within the meaning of the Act and within the meaning of what was said in Humphries & Anor v Poljak.
51 The plaintiff is successful. He has discharged the burden of proof. Pursuant to s93(4)(d) of the Act, leave is given to him to bring proceedings. I shall hear the parties as to any ancillary orders that are required.
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