Busso v Transport Accident Commission
[2015] VCC 1867
•18 December 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-04452
| MARIO BUSSO | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 and 3 December 2015 | |
DATE OF JUDGMENT: | 18 December 2015 | |
CASE MAY BE CITED AS: | Busso v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1867 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – s93 Transport Accident Act 1986 – paragraph (a), aggravation of neck, back and both shoulders
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis & Ors [1998] 3 VR 833; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Hunter v Transport Accident Commission [2005] VSCA 1; Richards v Wylie (2000) 1 VR 79; Transport Accident Commission v Zepic [2013] VSCA 232 at paragraph [11], [138]–[139]; Petkovski v Galletti [1994] 1 VR 436; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V A Morfuni QC with Mr J Buchecker | F Butera & Co |
| For the Defendant | Mr D R Myers | HWL Ebsworth |
HIS HONOUR:
Introduction
1 By way of Originating Motion dated 30 August 2013, Mario Busso (“the plaintiff”) seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (as amended) (“the Act”), to bring common law proceedings to recover damages for injury to his spine and both shoulders (“the injury”) suffered by him arising out of a transport accident on or about 10 August 2008 (“the transport accident”).
2 The plaintiff gave evidence and was cross-examined. Both parties tendered various documents.[1]
[1]See Annexure “A”
Relevant legal principles
3 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.[2]
[2]See s93(6) of the Act
4 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s93(17) of the Act which reads:
“In this section—
serious injury means—
(a) serious long-term impairment or loss of a body function.”
5 The part or parts of the body said to be impaired for the purposes of paragraph (a) in relation to the transport accident were said to be:
(a)“the spine”, being a composite of the neck and low back.[3]
In his final address, Senior Counsel for the plaintiff made it plain that he was not relying on the low back part of the spine, but rather the neck part of the spine;
(b)the left and right shoulders.
[3]See Transport Accident Commission v Zepic [2013] VSCA 232 at paragraph [11]; [138] – [139] wherein the Court of Appeal accepted (largely on the basis that it had never been challenged hitherto) that the “spine” can be one body function consisting of the neck and low back.
6 In particular, Senior Counsel for the plaintiff advised the Court that prior to the transport accident, the plaintiff had been diagnosed with the condition of “diffuse idiopathic skeletal hyperostosis” which is more commonly known by the acronym “DISH”. Senior Counsel explained that such condition is an idiopathic calcification of tendons which extended to the spine, with the suggestion that it might have been in the shoulders as well. Senior Counsel for the plaintiff said the case was put on the basis that the transport accident aggravated such pre-existing condition in what he referred to as aggravation of “the degenerative condition – skeletal in the spine and also in the shoulders”.[4]
[4]See generally Transcript (“T”) 2
7 When queried as to whether each of the shoulders had to be looked at separately and not aggregated with each other, or indeed the back (that is, the neck), Senior Counsel for the plaintiff stated:
“It is not clear, with respect, whether in the circumstances where they arise out of the one episode and it’s to both shoulders, whether you can aggregate but we say that on the medical evidence it’s open to find that one or both the shoulders satisfies the test.”[5]
[5]See T2, L29 – T3, L2
8 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)“the injury” suffered by him was the result of the transport accident;
(b)the requirements of the test set out in the seminal decision of Humphries & Anor v Poljak,[6] wherein a majority of the then Full Court of Victoria stated:
“Subs(17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under para(a) and the latter under para(c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para(a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of para(c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs(17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be 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’?[7]
(c)“serious injury” as defined in sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment – however, the mental disorder cannot in itself constitute or be the producer of the impairment of a body function.[8]
[6][1992] 2 VR 129
[7]Humphries & Anor v Poljak (op cit) at 140; see also Mobilio v Balliotis & Ors [1998] 3 VR 833; Transport Accident Commission v Kamel [2011] VSCA 110 at paragraphs [61] – [64]
[8]See Richards v Wylie (2000) 1 VR 79
9 Because the case was put on an “aggravation” basis, both counsel accepted that the then Full Court of Victoria decision of Petkovski v Galletti[9] has application. I refer to that decision and, in particular, to what Southwell and Teague (with whom Brooking J agreed), stated:
[9][1994] 1 VR 436
“One should commence with the acknowledgment that it has for long been the law that an injured person is to be compensated for, but only for, such disabilities as are proved to have resulted from the relevant accident. While the wrongdoer must take the victim as he finds him, he must compensate only for the damage he has wrought.
The Act does not affect that long established principle.
… [After referring to s93(2)] …
That must mean that the injury which has been caused by or is the result of the relevant accident is a ‘serious injury’. And so it is that upon application to the court for leave to bring proceedings under s93(4)(d), subs(6), provides (to repeat, with emphasis added, part of the sub section):
‘A court must not give leave . . . unless it is satisfied that the injury is a serious injury.’
The accident did not cause the pre existing condition; at this stage of the process the applicant must establish what injury was caused by the accident; where there is a pre existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury.
But, next, ‘the injury’ - that is, the injury which resulted from the accident – ‘must involve serious long term impairment ... of a body function’.
That must follow, as we believe, both as a matter of ordinary construction, and from the statement of the majority in Humphries where it is said, at 140, in a passage already quoted: ‘To qualify for such a description [that is, ‘serious injury’] there must be an impairment or loss of a body function which AS A RESULT OF THE INFLICTION OF THE INJURY COMPLAINED OF is both serious and long term.’”[10]
(Emphasis added).
[10]See Petkovski v Galletti (op cit) at 443 – 444; see also De Agostino v Leatch [2011] VSCA 249 at paragraph [60]
The issues
10 When queried as to what the issues were, I was shown a defendant’s Statement of Issues, which essentially asserted:
(a)The plaintiff complains of primarily neck pain, low-back pain, left and right shoulder pain which are said to have been caused by the transport accident;
(b)Prior to the transport accident, the plaintiff had been diagnosed with DISH and was on treatment using Panadol Osteo. Such condition affects both the spine and shoulders;
(c)There is general agreement that the pathology found in the radiology of the spine and shoulders was a result of DISH;
(d)There is a conflict of opinion in relation to any aggravation and/or acceleration of DISH, and the plaintiff relies on Mr Mangos, Mr O’Brien and Mr Miller. However, it was asserted that each of these doctors did not obtain a full appropriate history of the pre-existing condition and the opinions of Mr Shannon (an orthopaedic surgeon) and Dr Fraser (a rheumatologist) should be preferred, given they had a full history of what the plaintiff was suffering prior to the transport accident;
(e)Mr Yap, the supporting surgeon, considered that any aggravation of the right shoulder as a result of the transport accident came to an end after he performed surgery on that shoulder.
The evidence of the Plaintiff
11 The plaintiff acknowledged that he had sworn two affidavits – one on 25 July 2013 and a second affidavit on 19 February 2015. Furthermore, he confirmed that he had recently read both affidavits and the contents of each were “true and correct”.[11]
[11]T24, L15–16
12 By way of his first affidavit sworn on 25 July 2013,[12] the plaintiff gives the following pertinent evidence:
[12]See exhibit A at pages 7 – 14 Joint Court Book (“JCB”)
·He is a sixty-nine-year-old (born in August 1946) married man with two adult children and several grandchildren.
·On 10 August 2008, he suffered injury as a result of a transport accident. He describes the circumstances of the transport accident as follows:
“… I was driving my motor vehicle … when a motor vehicle … came onto the incorrect side of the road and collided with my motor vehicle. My wife, Grace, was a passenger in the vehicle. It was a severe collision and the vehicle was a write-off. … At the time of the accident, I was wearing my seatbelt and the airbags were activated.”[13]
[13]See exhibit A at pages 7 – 8 JCB
· As a result of the transport accident, he suffered injury to his shoulders, neck, lower back, right and left arms, left hand, wrist and thumb, jaw and teeth and Post-Traumatic Stress Disorder (“PTSD”).
· He was born in Italy and migrated to Australia with his family when he was twelve years old, after which he completed the equivalent of Year 9 and then underwent a five-year apprenticeship as a motor mechanic.
· He subsequently worked as a motor mechanic for about seven or eight years and then obtained work as a car salesman.
· He subsequently established his own business called Reservoir Car Sales Pty Ltd where he sold used cars, and continued in that work until 2005 when he “retired”.
· He has suffered from diabetes and hypertension for several years, with both conditions being reasonably well controlled by medication. He has experienced “aches and pains in my back and neck from time to time”.
· After the transport accident, he was taken by ambulance to the Austin Hospital, where he was admitted overnight and during which time, several tests were performed, including an x‑ray of his whole spine.
· He was admitted to the North Eastern Rehabilitation Centre under the care of Dr Senen Gonzalez, a rehabilitation specialist, after he was discharged from the Austin Hospital. He also received physiotherapy treatment as an outpatient.
· He attended his general practitioner, Dr Alan McCleary, for treatment including physiotherapy, hydrotherapy and the prescription of painkilling and anti-inflammatory medication for his condition. Dr McCleary also referred him for x‑rays, because he was having ongoing problems with his left hand and wrist and ultimately, he was advised that the x‑ray revealed a fracture of his left thumb and consequently, his left hand and wrist were immobilised in plaster for about six weeks. That condition improved over six months.
· On or about 26 August 2008, an x‑ray was performed at the Mitcham Private Hospital, because he was experiencing pain in his chest and ribs and he also continued to suffer from ongoing pain, stiffness and limitation of movement in his neck, back, shoulders and arms.
· His right shoulder was worse than the left and after the transport accident, he noticed that his right shoulder often froze and locked up when using his right arm.
· In September 2008, he was referred to the orthopaedic surgeon, Mr Yap, who arranged for him to undergo an MRI scan of his shoulders, which was performed on 16 March 2009.
· He was informed by Mr Yap that the MRI scans revealed tearing to the tendons of his right and left shoulder and Mr Yap recommended that he undergo surgery to his right shoulder, which the plaintiff declined at that time. Mr Yap gave him a hydrocortisone injection and performed hydrodilatation of the right shoulder which did not provide any long-term improvement.
· He suffered a heart attack approximately four months after the transport accident, which caused him to be admitted to the Epworth Hospital, where a stent was inserted into a coronary artery. He has made a reasonably good recovery after such surgery, although he often experiences “shortness of breath and I continue to take Warfarin tablets for my heart condition”.[14]
[14]See exhibit A at page 10 JCB
· He continues to suffer from pain, stiffness and limitation of movement in his neck, lower back and shoulders, particularly the right shoulder. He is naturally right-handed and his shoulder pain is aggravated when he uses his hands, particularly when he is required to lift his arms or reach forward and upwards. He lacks strength in his hands and often drops objects and also experiences pins and needles in both hands which is worse in his right hand. He has difficulty sitting and standing for long periods of time and also trouble in engaging in activities that require heavy lifting or infrequent bending.
· Mr Yap “recently” advised him to undergo surgery to both shoulders but he is “extremely anxious about the prospect of surgery”. He had experienced problems with his jaw and teeth and had difficulty chewing, causing him to attend an oral and maxillofacial surgeon for this problem. He believes his jaw was displaced in the transport accident and has lost the evenness of bite.
· He suffers from anxiety and depression as a result of his injury, and his heart attack has also contributed to such anxiety and depression.
· At the time of the first affidavit, he continued to receive treatment for his injuries consisting of:
(a) He had physiotherapy twice a week after the transport accident and then once a week until payment was terminated by Transport Accident Commission in March 2010;
(b) He continues to perform exercises at home which were shown to him by the physiotherapist;
(c) He continues to attend hydrotherapy at the gymnasium where he performs light exercises on a weekly basis;
(d) He attends an osteopath every month or two for massage treatment;
(e) He takes Panadol Osteo and Panadeine Forte for the pain.
·On 3 August 2012, Mr Yap performed surgery to his right shoulder which he understood to be a repair of a large tear of the rotator cuff tendon, and he was hospitalised for about two days. Mr Yap referred him to physiotherapy treatment after the surgery once a week for about six months.
·He intends to see his general practitioner, Dr McCleary, on a regular basis for treatment and review, and Dr McCleary continues to prescribe painkilling medication for his injuries.
·His injuries have had significant effect on his social, recreational and domestic capacities. In particular, he asserts that:
(a)His “injury” has limited his ability to perform activities, including gardening, mowing the lawn and handyman work, and it takes much longer to mow lawns than it did prior to the transport accident;
(b)Activities such as cleaning the spouting, painting and using ladders are generally too difficult for him to perform;
(c)He finds it difficult to walk long distances;
(d)Although he is still able to drive because his car is equipped with power steering and automatic transmission, he avoids driving long distances “when I can” and has to rely on mirrors when reversing;
(e)His sleep has been “adversely affected and I often wake up in pain during the night. I have to be careful not to rest on my right shoulder for long periods of time and I regularly change my position in bed. I often feel fatigued during the course of the day due to a lack of sleep;”[15]
(f)He used to enjoy traditional dancing and attending dinner dances with his wife and now these activities are “limited, as are outings to picnics, barbecues, restaurants and movies”;
(g)His emotional wellbeing has been significantly affected by the injury and he continues to experience nightmares and is haunted by images of the transport accident. He has been informed by a psychiatrist, Dr Nigel Strauss, that he is suffering from Post-Traumatic Stress Disorder and he often feels depressed;
(h)His right shoulder pain became more “bearable” after the surgery performed by Mr Yap; however, he continues to experience ongoing pain and discomfort in the right shoulder on a daily basis and has to be very careful when reaching overhead and he tries to avoid lifting and carrying heavy items.[16] Although he has a better range of movement in the right shoulder since surgery, it continues to throb and is not as good as it was before the transport accident;
(i)He experiences significant problems in his left shoulder and he experiences pain on “most days”, together with pain in his neck and back, which is present “all the time”. He experiences significant limitation of movement in his neck which restricts him from performing a range of activities and he has to be very careful when driving the car because he finds it difficult to turn his head to watch the traffic;
·He continues to suffer from hypertension, which is being monitored by his doctor, but he does not experience any significant problems or restrictions as a result of his heart condition.
[15]See exhibit A at page 13 JCB
[16]See exhibit A at page 13 JCB
13 By way of his second affidavit sworn on 19 February 2015,[17] the plaintiff gives the following pertinent evidence:
[17]See exhibit A at pages 15 – 19 JCB
·Following the surgery to his right shoulder by Mr Yap, he has continued “to suffer from significant right shoulder pain and discomfort”.
·Although he would say that his right shoulder pain is worse than the spine and left shoulder, he also suffers from ongoing problems with his neck and back, and left shoulder. In particular, he experiences pain daily and significant pain to his right shoulder, neck and left shoulder.
·In February 2015, Mr Yap referred him for an x‑ray of his right and left shoulder and neck and after obtaining such x‑rays, Mr Yap recommended that he continues taking Panadol Osteo for pain, particularly for his right shoulder.
·He continues to consult his general practitioner, Dr McCleary, on an ongoing basis for treatment and management of his medical condition (including treatment for diabetes and blood pressure issues). He continues to take Panadol Osteo every day for pain and this assists his right and left shoulder and spine. Such Panadol Osteo is prescribed by Dr McCleary and he currently takes approximately two tablets three times a day.
·He also takes Glucosamine tablets on the recommendation of his doctors which is to help the pain, particularly in his right shoulder – such tablets are taken one in the morning and one at night.
·In August-September 2013, the Transport Accident Commission agreed to provide pain management for his condition and he was referred to the La Trobe University Rehabilitation Clinic where he was admitted as an outpatient for a ten-week period for the purpose of pain management of his injuries. At that time, he was provided with a range of different techniques to deal with his pain and was provided with physiotherapy, hydrotherapy and also a psychologist for treatment.
·His injuries continue to have significant impacts on his social, recreational and domestic capacity. Particularly, he refers to the following:
(a)Gardening, mowing the lawns and handyman work. He tries to do some of these activities; however, he has to be very careful about flare-up of pain, particularly in his shoulders and his spine;
(b)He continues to drive a car, however, he has to avoid driving long distances as this causes an increase in pain;
(c)His sleep continues to be a problem as he regularly wakes up throughout the night in pain, particularly in his shoulders and spine;
(d)He continues to be restricted in being able to enjoy dancing and attending dinners and does not feel up to it socially as he is constantly concerned about his level of pain;
(e)His emotional wellbeing has been badly affected by the injury and this continues. He continues to suffer from nightmares and bad memories of the transport accident.
·When he recently returned to see Dr Nigel Strauss, he was advised that he was suffering from ongoing depression caused largely because of his ongoing pain and lack of use of his limbs.
·He continues to suffer from diabetes and hypertension which are well managed at this point of time.
·In December 2014, he had a further stent inserted which has been successful in assisting his blood pressure.
·Before the transport accident, he had what he calls “minor discomfort and pain in my shoulders and spine. However, the transport accident caused significant escalation of the pain that I experienced in my shoulders and spine.”[18]
·He continues to suffer from ongoing back pain, pain and discomfort in his shoulders and spine which is “not improving and, if anything, is getting worse”.[19]
[18]See exhibit A at page 18 JCB
[19]See exhibit A at page 18 JCB
The cross-examination of the Plaintiff
14 Under cross-examination, the plaintiff was taken to that part of his affidavit where he deposed that he had aches and pains in his back and neck prior to the transport accident from time to time and the plaintiff confirmed that was the case. When queried as to whether or not he had treatment for neck and back pain prior to this transport accident, the plaintiff responded:
“Sometimes the physio masseur type of thing, that’s about it.”[20]
[20]T25, L22–23
15 When it was put to him, the plaintiff accepted that he had been attending a chiropractor prior to the transport accident for treatment both to his neck and back.
16 When queried as to whether or not he had any shoulder problems prior to the transport accident, the plaintiff stated:
“There was a minor problem there but nothing to worry about.”[21]
[21]T26, L3–5
17 The plaintiff was referred to the medical records of his treating general practitioner, Dr Alan McCleary, and in particular, to the following attendances:
(a)5 March 2007, when the plaintiff complained of having back pain one month ago and attending a chiropractor, who considered that it may be his kidneys were not functioning properly. Dr McCleary recorded he complained of right low lumbar pain radiating into the right hip and thigh, worse with walking, bending, walking up stairs with no relieving factors.
The plaintiff accepted that he gave such history, and further accepted that he had treatment from various chiropractors rather than just a chiropractor referred to by Dr McCleary in his note.
(b)On 3 November 2007, the plaintiff reported, amongst other things, that he was having “right shoulder pain” and that “years ago he had local ste[r]oid into it”. At that time, Dr McCleary gave him a patient education leaflet, and exercises for his shoulder were ticked. When queried about the injection, the plaintiff gave evidence that it was a general practitioner, Dr Symington, who gave him the injection and he thought this was in about 1989 (as his father had died at about that time).
(c)On 17 July 2008, the plaintiff complained to Dr McCleary, amongst other things, that he had right shoulder pain, stiff neck and his shoulders “feel like a tonne of bricks on them”.
Musculoskeletal examination at that time revealed the shoulders to be stiff but having a full range of movement, with the neck having almost no movement.
The reason for the visit was said to be “neck – pain” and Dr McCleary gave the plaintiff Mobic capsules and arranged for an x‑ray to be undertaken of the cervical and lumbosacral spines.
When queried about the history “shoulders feel like a tonne of bricks on them”, the following evidence was given:
Q: “Do you remember saying that your shoulders felt like a tonne of bricks on them?---
A: Yes but what I meant was near my neck, not generally everywhere. I said that everything feels like a tonne of bricks. That’s like the word that I said, yes.
Q And you had right shoulder pain, as well as a tonne of bricks?---
A: No, it was mainly that but he could have put that down too.”
HIS HONOUR:
Q: “Sorry, I just want to understand. By that are you saying, when the reference is, ‘like a tonne of bricks’, first, you made that reference, did you?---
A: Yes, I did. Yes I---
Q: But when you used, ‘like a tonne of bricks’, you were referring to your neck and shoulders, were you?---
A: No, I was referring the - on the neck blade, just around there (indicates), not shoulder but I used the word, you know, ‘everywhere’.”
MR MYERS:
Q: “Well, you used the word, ‘shoulders’. You said, ‘Shoulders feel like a tonne of bricks on them’?---
A: Not the shoulders, I mean the neck part.
Q: You can actually remember saying that in 2008, can you?---
A: Well, I did say it felt like a tonne of bricks, yes.
Q: And you can remember distinguishing between your shoulders and your neck?---
A: Well, I never went there for my shoulders. I went mainly for the neck. Around there it felt heavy.”[22]
When it was suggested to him that the records would indicate that he was given Mobic capsules at that consultation, the plaintiff indicated that he might have – he could not remember.
(d)On 25 July 2008, it is recorded that the plaintiff informed Dr McCleary that the Mobic made little difference to his neck and although he has not got much pain, the neck is stiff.
At that time, a diagnosis was made of “skeletal hyperostosis”. Furthermore, Mobic capsules were ceased and the plaintiff was prescribed Panadol Osteo and seemingly agreed with the proposition that a tablet was to be taken two to three times per day.[23]
(e)On 7 August 2008, he attended Dr McCleary for a team care plan and that he feels “all stiff especially since [he] has been told he has skeletal hyperostosis”.
[22]T28, L2-26
[23]T30, L22-29
18 The plaintiff accepted when it was put to him in cross-examination that immediately after the transport accident, he was only complaining about his back and neck rather than his shoulders. Furthermore, he accepted, after cross-examination, that it was “most probably” the case that he complained to the ambulance officers of neck and low-back pain rather than shoulder pain.
19 The plaintiff was then taken to the records of Dr McCleary, and, in particular, his attendance on that doctor on 15 August 2008 (the first attendance after the transport accident), where it is recorded, in part:
“Mario now has bruises all over, his ribs hurt, left arm hurts, bruise on lower abdo from safety belt. Constipation form [scil from] Panadeiene forte.”[24]
(sic)
[24]See Exhibit A at page 194 JCB
20 Examination at that time revealed a large bruise across the lower abdomen, tender left upper anterior chest, good air entry, and full range of movement in the shoulder with no bony tenderness.
21 After being taken to that reference, the following evidence was given:
Q:“There was no complaint of pain in your – either shoulder at that time?---
A:Right.
Q:And in fact your shoulder was examined, both shoulders, assumedly, and there was a full range of movement in your shoulders?---
A:Well, they – if that’s what he said, that’s what it is.
Q:Yes. Then we go over, there’s some other visits and then there’s a visit, Friday, September 26, 2008. It says there, and you’ll see at the bottom of 195, ‘During the motor vehicle collision he braced his arm against the steering wheel. Now he has pain ++ in his right shoulder’, and you had a problem with your bite?---
A:Mm.
Q:Is that correct?---
A:Yes.
Q:And then you’ll see the next entry is October 3, 2008. ‘His shoulder has improved but it seized up if he uses it for more than a few hours’, correct?---
A:That’s right, yes.
Q:Yes, and that was a fair reflection of the problem with your shoulder?---
A:That’s right, yes.
Q:Now just moving on do you see there’s various visits and then in December 2008 at the top of 197, he says, ‘He has pain in right shoulder, he’s had physio but shoulder is still painful, he has chronic rotator cuff calcification, discuss intraarticular steroids’. ... .”[25]
[25]T34, L21 – T35, L 1-12
22 The plaintiff was also taken to attendances by him on Dr McCleary on 30 January 2009, when he complained of pain in the shoulder if he attempted to pick up anything from the ground, and on 24 April 2009, at which time he completed a six-week rehabilitation course but continued to have pain in his lower back. At that time, it was reported he had reduced mood, was short of breath on exertion, good appetite, sleeps okay, but “is not the same as he was before the accident”.
23 In particular, the plaintiff was referred to his attendance on Dr McCleary on 11 June 2009, at which time he was again prescribed Panadol Osteo. The plaintiff confirmed that he has been using a CPAP machine since 1995, and also confirmed that he had suffered from sleep apnoea before the transport accident. The plaintiff gave evidence that he was prescribed sleeping medication at the time he was undergoing rehabilitation.
24 The plaintiff gave evidence that he attends a cardiologist on a reasonably regular basis, and, in particular, the following evidence was given:
Q:“Now just looking at that for one moment, you’ve had heart problems for how long, sir?---
A:Well, I had high blood pressure.
Q:Yes?---
A:But the heart problem when it come was after the accident when I got a stroke.
Q:You had a what?---
A:A heart attack.
Q:A heart attack?---
A:Yes.
Q:When do you say that happened?---
A:That happened in December 2008.
Q:And since then you’ve been under treatment from a cardiologist?---
A:Yes.
Q:And- - -?---
A:And I had a stent put in, in 2008, December 2008.
Q:And you’ve more recently had another stent put in, is that correct?---
A:That’s right, yes.
Q:And in recent times you were considering travelling overseas and you were going to see Associate Professor Nicholas Cox in relation to your heart problems, is that right?---
A:That’s the person that I see, Nicholas Cox.”[26]
[26]T37, L24 – T38, L1–10
25 The plaintiff also confirmed that he has had problems with shortness of breath in 2015 and, in particular, also suffered heart failure on the day that he was supposed to come to Court for his case.
26 The plaintiff also confirmed that he went overseas for six weeks in August 2014 and travelled to Sicily with his wife, visiting family and friends.
27 The plaintiff confirmed that he was treated by a rehabilitation specialist, Dr Senen Gonzalez (on referral from Dr McCleary), after the transport accident. Again, the plaintiff was referred to various parts of the records of Dr Gonzalez, and, in particular, that on 4 September 2008, he was complaining of an exacerbation of low-back pain and neck pain and left shoulder stiffness, and the plaintiff accepted that it would be a fair description that his current issues involved “left shoulder, stiffness and mild pain”. The plaintiff accepted that a perusal of the notes from Dr Gonzalez would suggest that the main treatment was in relation to his neck and back.
28 He was referred to one of his last attendances on 27 November 2008 and, in particular, the following evidence was given:
Q:“If we go down further, you will see the next page, p.97, 27/11/08, this is towards the end of your physio, you had that you’re currently walking unaided, doing your activities of daily living, you’d returned to driving, you’re not able to do any heavy chores because of shoulder and back pain limitation: is that fair enough, fair comment?---
A:Yes, yes.
Q:Then they say, ‘Non-tender right shoulder’, and they check your shoulder range of movement and the range of movement on both shoulders is tested there, and he says ‘Functionally progressing well’ and ‘displaying with’, such and such ‘range of movement’ and ‘pain managing well with simple analgesics. Suggest Voltaren gel typically the shoulders’ and then the – ‘Topically’ – ‘topically’ not ‘typically’, Your Honour, sorry. 28/11/08 more physiotherapy, the seventh session, ‘Shoulder range of movement, pain with right descent’, and then if we go to, for example, the next one, 01/12/05 physiotherapy, ‘Pain right shoulder post-exercises’, and then 8/12/08 physiotherapy tenth session, ‘Complaining of lumbar and thoracic spine pain this morning. Foot pain improved. Range of movement, shoulder full’ I suggest, ‘right and left 160’. Physiotherapy 11/12/08, 11th session, I suggest there’s nothing particularly relevant there, then we go over the page to 18 December, physiotherapy, ‘Relief from shoulder pain from four to six hours with Voltaren’, is that right, did you use Voltaren on your shoulder, Voltaren?---
A:Yeah, I always use that.
Q:Do you still use that?---
A:Sometimes.
Q:Sometimes?---
A:Yeah.
Q:Does it give you relief from any shoulder pain?---
A:Not really.”[27]
[27]T42, L17 − T43, L1–17
29 The plaintiff confirmed that he continued to do exercises for his neck, low back and for both shoulders.
30 The plaintiff was cross-examined about his attendances on his treating orthopaedic surgeon, Mr Yap, who initially saw the plaintiff on 25 August 2008. The plaintiff accepted that Mr Yap discussed his condition of stiffness and that he might have said the stiffness that he was experiencing was a result of DISH.
31 It was also put to the plaintiff that he saw Mr Yap on 1 September 2008 and 29 September 2008, but it was not until 10 November 2008 that he made any reference to any right shoulder pain. At that time, the plaintiff accepted that he gave a history that:
“Recently he had also been complaining of increasing right shoulder pain with associated impingement syndrome.”
32 The plaintiff confirmed that he underwent surgery to his right shoulder, performed by Mr Yap in August 2012, and, following such surgery, he was taken off “heavy drugs” and was progressing well. The plaintiff confirmed that, following the surgery, he had a “good result” for about fifteen months before the symptoms started to worsen again. The plaintiff also accepted that his symptoms in the right shoulder were “slightly” worse than those in the left shoulder. The plaintiff considers that the symptoms in the right shoulder are the same as they were prior to the surgery.
33 The plaintiff was referred to a letter from the neurosurgeon, Mr Peter Dohrmann, to Dr Ian McPherson, such letter being dated 13 March 2001.[28] In that letter, Mr Dohrmann obtained a history from the plaintiff that he had had a stiff and painful neck for many years and that he was concerned about his risk of being involved in a car accident because he had inadequate rotation of the cervical spine.
[28]See exhibit 1
34 The plaintiff accepted that he would have had a stiff neck for a long time and, in particular, he accepted that when he saw Mr Dohrmann (although he could not remember the name), he had had the stiff neck for many years – although the plaintiff has asserted “but not as bad as now”.[29] The plaintiff also accepted that he had had “lower back pain”, for many years. The plaintiff confirmed that his greatest problem was his right shoulder.[30]
[29]T49, L10
[30]T49, L27−28
35 Under cross-examination, the plaintiff stated:
(a)Whereas he used to do gardening, he does not do it now, but he still cuts his lawns and is restricted in his handyman’s work;[31]
(b)He does not climb up ladders now;[32]
(c)He still drives a car and does not have any problem driving a car;[33]
(d)He wakes up sometimes in the night with pain in both shoulders and his back, but takes no medication to help him sleep apart from Panadol Osteo;[34]
(e)His problem with sitting for a long time because of his low-back was a “little problem” before the transport accident, but now it is a “bigger problem or larger”;[35]
(f)When he wakes up during the night, it is because when he turns around “there’s pain in the shoulders and pain in my neck and back”;[36]
(g)Before the transport accident, any pains in his neck or back or shoulders did not impact on his dancing and attending dinners, but since the transport accident, he is a “lot more stiffer” and cannot move around as much and is not willing to go out. He goes out about every four months, or something like that, to dances and has a few dances;[37]
The plaintiff asserted that any problems he had in his neck, back and shoulders prior to the transport accident were “minor”, whereas he suffers greater pain and stiffness now.
[31]T50, L2−4
[32]T50, L7
[33]T50, L11−12
[34]T50, L15−18
[35]T50, L27−31
[36]T51, L12−14
[37]T51, L19–31 – T52, L1–19
36 In particular, the plaintiff gave the following evidence in relation to his present treatment “for all conditions”:
Q.“You don’t get treatment from a chiropractor unless you’ve got significant problems, I suggest?---
A.Well, I don’t mind going to the chiropractor and get a massage done, I think it’s quite normal.
Q.You still go to the chiropractor, do you?---
A.No, I haven’t been there for a while.
Q.It’s not normal now?---
A.Before it was normal for me to go.
Q.But it’s not normal now?---
A.No.
Q.What treatment do you get now for your back and neck?---
A.Nothing.”
HIS HONOUR:
Q:“Do you take tablets for your heart condition?---
A:Yes.
Q:Put those aside. Do you take any medication for your breathing or sleeping condition?---
A:No. Breathing I use the CPAP.
Q:The machine?---
A:Yes.
Q:What tablets do you take, if any, right now?---
A:I’ve got them written down. Can I? I take Lasix, Plavix.
Q:Lasix, what do you understand that’s for?---
A:That is to urine? Yeah, to go to the toilet. Plavix.
Q:What’s that for?---
A:That is for the stent.
Q:Yes?---
A:Epidone is for going urine again.
Q:Yes?---
A:Xarelto, to thin the blood down.
Q:That’s in relation to your heart, is it?---
A:That’s right, yes.
Q:Yes?---
A:(Indistinct) is to do with diabetes.
Q:Yes?---
A:Crestor to keep the internal better, you know, with the medication that I take. Nexium.
Q:Nexium?---
A:Yes.
Q:What’s that for?---
A:That’s for acid for the tablets that I take, to help inside.
Q:Yes?---
A:I take Panadol Osteo.
Q:How often do you take that?---
A:I take two morning, lunch, evening and before I go to bed.
Q:What, six altogether?---
A:I take about eight.
Q:What do you take that for?---
A:That’s for the pain.
Q:The pain where?---
A:In my shoulder, the pain, mainly for the shoulders.
Q:Shoulders?---
A:Shoulders, neck, that type of things. Augmentin, like at the moment I’ve got a cold, and that’s about it.
Q:Yes. So I understand it, of those – the Panadol Osteo, you’d relate to your neck and back and shoulders, would you?---
A:That’s right, yes.
Q:And that’s the only drug you’d relate to them?---
A:That’s right.”[38]
[38]T53, L29 − T55, L8
37 The plaintiff was cross-examined about his assertion that he was fully retired prior to the transport accident and did no physical work. In particular, the plaintiff was referred to the following material:
(a)The report from the psychiatrist, Dr Nigel Strauss, who initially examined the plaintiff on behalf of the solicitors for the plaintiff on 17 March 2011, and wrote a report of the same date.[39] In that report, Dr Strauss recorded that the plaintiff told him “at the time of the transport accident he worked twenty hours a week as a car wholesaler” but had given up work since the transport accident.
[39]Exhibit D at JCB 154
The plaintiff accepted that he was performing wholesaling work approximately 20 hours a week, but received no money for such activities. He was buying the cars through Reservoir Car Sales and Reservoir Car Sales was given the money. He was doing it for “the fun, something for me to do”.[40]
[40]T56, L22−26
(b)The report from the psychiatrist, Dr Timothy Entwisle, who examined the plaintiff on behalf of the defendant on 9 December 2011. Dr Entwisle obtained a history that:
“When his mother died he ceased all work in 2006. ‘I chucked in the towel’ … .”[41]
[41]JCB 234
When queried about that, the plaintiff said, yes, he did stop work at that time.
(c)The report of the orthopaedic surgeon, Mr Michael Shannon, who examined the plaintiff on behalf of the defendant on 27 February 2012.[42] Mr Shannon obtained a history that, since the transport accident, the plaintiff had done no work, although he stated that “he had sold a few cars for friends”.
[42]See exhibit 2 at JCB 236
When queried about that comment, the following evidence was given:
Q. “So you helped your work out before the accident and you help your friends out after the accident; is that what you’re saying?---
A. Yes but that’s after I’ve got better, you know, could be, you know, 12 months ago or something like that.
Q. Okay, after you got better, and have you gone back to helping your work out a little bit with car wholesaling?---
A. No. No.
Q. So what are you doing? How do you sell cars for friends?---
A. I just, they give it to me, I put it through the internet.
Q. I see.
A. And then when someone comes I just ring them up, say I’ve got a customer, ‘That’s what they want to pay you, want it or not’, and that’s it.”[43]
[43]T58, L11−23
38 The plaintiff gave evidence that he went into business on his own in High Street, Preston, in about 1976 and traded under the corporate entity, Reservoir Car Sales Pty Ltd. In about 2001, his children took over the running of the business and were made directors, and the plaintiff became an employee of the company. In 2005, the business was sold to another company, but he remained for a number of months in a transitional role until early 2006. He still goes very occasionally to car auctions, and the last one was about eight or ten months prior to the hearing – mainly to see his friends.
39 He was referred again to the notes of rehabilitation specialist, Dr Senen Gonzalez, and, in particular, to the reference on 4 September 2008 where it is recorded that Dr Gonzalez was informed by the plaintiff that he was “semi-retired – handyman, odd jobs (self-employed)”.
40 When queried about that comment, the plaintiff stated he could not recall, but then went on to say:
“…lots of times, you know, you talk with people, they tell you a lot of things and you want to piss them off your back.”[44]
[44]T63, L24−27
41 When pressed by the Court, the plaintiff stated that when he said that, it was meant to mean prior to the transport accident, not at the time of his examination.
The re-examination of the Plaintiff
42 Under re-examination, the plaintiff confirmed that he established the business under the corporate entity of Reservoir Car Sales Pty Ltd, of which he was a director. He remained a director until 2001. The business was selling used cars and the premises were owned by the Busso Property Trust. His children became directors of the corporate entity in about 2001. They continued to run the business until about 2005, during which time the plaintiff continued to work at the caryard, buying and selling cars on behalf of the corporate entity.
43 In 2005, although the business was still registered, he continued to buy motorcars off and on until the transport accident.
44 The plaintiff also asserted that, to the extent that he had neck and low-back pain prior to the transport accident, such pain did not prevent him from working, whereas presently, such pain prevents him carrying maintenance on his home, doing gardening work at his home, and prevents him climbing up ladders to perform maintenance work.
45 Prior to the transport accident, he went out to dinner dances (the plaintiff making the point that it was not just dancing, it was dinner dances) and he went out about once a month. That involved chatting with friends, having a drink, having a meal and having a dance at the same time. When queried how often he goes now, the plaintiff stated:
“At this stage about once every four months, five months, six months, whatever it might be.”[45]
[45]T76, L30 – 31
46 The plaintiff described his pain as “very, very hard. It’s always there”,[46] and since the transport accident, he has not been able to sleep at night, having pain in his shoulders, neck and back.
[46]T76, L13
The treatment received by the Plaintiff
47 Before referring to any treatment, I do set out details of the radiological examinations undertaken by the plaintiff:
(a) A plain x-ray of the cervical spine undertaken on 17 July 2008,[47] approximately twenty-four days prior to the transport accident. The radiologist reports:
[47]See exhibit B, page 19A JCB
“Hypertrophic bone formation with anterolateral bridging is noted across the cervical spine from C2 to T1. Disc height appears relatively normal. There is mild accompanying facet osteoarthritis with slight foraminal encroachment at C4 and C5 bilaterally as a result. Appearances are suggestive of diffuse idiopathic skeletal hyperostosis.
There was no evidence of focal bony lesion or cervical rib. Nuchal ossification is noted posteriorly, possibly reflecting previous trauma.”
(b) Plain x-ray of the lumbosacral spine undertaken on 17 July 2008,[48] again, some approximately twenty-four days prior to the transport accident. The radiologist states:
[48]See exhibit B at page 19A JCB
“Hypertrophic spurring is noted throughout the lumbar spine with some intervertebral bony bridging, particularly around the thoracolumbar junction. There is mild disc narrowing with end-plate irregularity L4-5 and L5-S1 as well as mid and lower lumber facet osteoarthritis. There was no evidence of focal bony lesion or compression fracture or sacroiliitis.”
(c) An x-ray of the whole spine undertaken on 10 August 2008,[49] the day of the transport accident. The radiologist concludes:
[49]See exhibit B at page 20 JCB
“Extensive diffuse idiopathic skeletal hyperostosis (DISH) with no evidence of acute fracture or dislocation.”
(d) A plain x-ray of both shoulders undertaken on 22 December 2008.[50] The radiologist states:
[50]See exhibit B at page 27 JCB
“There is bilateral moderate to marked degenerative change in the acromioclavicular joints with prominent inferior acromial spurs. Bony irregularity in the region of the greater tuberosity bilaterally is also consistent with degenerative change. On the lateral view of the left shoulder there is a 5mm. well corticated bony opacity projected anterior to the humeral head raising the possibility of subscapularis calcific tendinopathy. No bony injury or bony destructive lesion is seen.”
(e) An MRI scan of the right shoulder undertaken on 16 March 2009.[51] The radiologist concludes:
[51]See exhibit B at page 28 JCB
“Large full thickness supraspinatus tendon tear with tendon retracted to the acromioclavicular joint. Associated subacromial spur, acromioclavicular osteophytes and moderate bursitis. Advanced biceps tendinosis with a longitudinal split.”
(f) MRI scan of the left shoulder undertaken on 16 March 2009.[52] The radiologist concludes:
[52]See exhibit B at page 29 JCB
“Large supraspinatus tendon full thickness tear with retraction to the level of the acromioclavicular joint. Associated subacromial spur, acromioclavicular joint osteophytes, mild to moderate bursitis, and biceps tendinosis.”
(g) Plain x-rays of both shoulders undertaken on 15 July 2011.[53] On the left side, the radiologist reported:
[53]See exhibit B at page 32 JCB
“There is mild glenohumeral joint chondral degeneration with osteophytic lipping of the inferior tubercle of the glenoid and mild inferior joint space loss. There is a type 2 acromial morphology with an anteriorly and inferiorly projecting subacromial spur noted. Almost certainly accounting for features impingement.”
On the right side, the radiologist stated:
“Moderate AC joint arthropathy.
Mild glenoid osteophytosis consistent with glenohumeral joint chondral degeneration. Similar to the contralateral shoulder, there is an anteriorly and mildly inferiorly projecting subacromial spur. In addition, soft faint calcification is evident beneath this which likely represents calcific tendinosis.”
(h) Plain x-rays of both shoulders and cervical spine undertaken on 6 February 2015.[54] The clinical notes at the time of the examination, state:
[54]See exhibit B at page 33 JCB
“Past history DISH. ? OA shoulders. Decreased range of movement.”
The radiologist concluded that:
“1.Findings in keeping with DISH.
2.Moderate bilateral glenohumeral degenerative changes are slightly more severe on the left.”
(i) An MRI scan of the left shoulder undertaken on 27 May 2015.[55] The clinical notes report that the plaintiff presented with “rotator cuff tear? left shoulder pain and stiffness”. The radiologist reported:
[55]See exhibit B at page 34 JCB
“1.Full thickness tear of the entire supraspinatus tendon with moderate retraction.
2.Large subacromial spur.
3.Partial tears of the anterior fibres of infraspinatus.
4.High grade partial tears of subscapularis.
5.High grade long head of biceps tendinopathy.
6.Mild glenohumeral joint degeneration.”
48 After the transport accident, the plaintiff was conveyed by ambulance to the Austin Hospital. I refer to the clinical records of such hospital.[56] Those records indicate that the plaintiff was involved in a transport accident on 10 August 2008 and that on admission, he was complaining of cervical and lumbar back pain. On that day, an x-ray of the whole spine and chest was undertaken. As I have already recorded, the conclusion of such x-ray was that the plaintiff suffered:
“Extensive diffuse idiopathic skeletal hyperostosis (DISH) with no evidence of acute fracture or dislocation.”[57]
[56]See exhibit 2 at pages 207 – 231 JCB
[57]See exhibit B at page 20 JCB
49 The hospital copy of the ambulance notes would also suggest that the plaintiff was complaining of neck pain, lumbar pain and pain in the left ribs area.[58]
[58]See exhibit 2 at page 228 JCB
50 The plaintiff relies on medical reports from his treating general practitioner, Dr Alan McCleary, who is situated at the St Helena Mediplex in Diamond Creek. Such reports are dated 2 February 2011, 8 July 2012 and 7 February 2015.[59] It is to be noted also that the defendant tendered the progress notes of Dr McCleary over the period from 5 March 2007 to 30 December 2009.[60]
[59]See exhibit C at pages 30 – 43 JCB
[60]See exhibit 2 at page 191 – 203 JCB
51 The plaintiff consulted Dr McCleary on 15 August 2008, advising him that he was in a transport accident on 10 August 2008. At that time, he had bruises all over him, his left ribs hurt, his left arm hurt and he had bruises on the lower abdomen from where the safety belt was. Examination revealed a large bruise across the lower abdomen, tenderness on the left upper anterior chest wall and a full range of shoulder movement, with no bony tenderness. It was noted that the plaintiff had suffered a left scaphoid fracture, and an x-ray of that area was arranged. In his report dated 2 February 2011, Dr McCleary also reports that there was a complaint of neck and low-back pain.
52 I also refer to the report from Dr McCleary dated 8 July 2012 where he acknowledges that prior to the transport accident, the plaintiff was experiencing neck pain, low-back and shoulder pain but the transport accident made such conditions “much worse”.
53 Also in that report, Dr McCleary highlighted, in particular, ongoing difficulties with the right shoulder, which he again acknowledges had an underlying “arthritic” condition but this was “made much worse by the accident”. In particular, he records that the impact on “activities of daily life” as a result of the right shoulder condition was that the plaintiff was unable to lift his right shoulder above horizontal; he had disrupted sleep due to pain lying on his right side or rolling onto his right side while asleep; an inability to lift anything heavier than about 3 kilograms with the right arm; an inability to do usual domestic chores such as cleaning the shower, bath, toilet et cetera; difficulty hanging clothing on the line to dry; the ability to use a vacuum cleaner on bare floors but not on carpet, and with gardening, being quite restricted, with pain on mowing lawns, and a reduced ability to weed the garden or carry cuttings. Furthermore, he has pain in his shoulder while driving.
54 Dr McCleary noted that he intended to refer the plaintiff to an orthopaedic surgeon to improve the “mobility and function of his [right] shoulder”.
55 In particular, I refer to the final report of Dr McCleary dated 7 February 2015. Dr McCleary noted that he had recently examined the plaintiff on 5 February 2015. Also, Dr McCleary noted:
(a) That the plaintiff did mention that he had right shoulder pain at the end of a consultation on 3 November 2007, at which time he also stated that years ago, he had local steroid placed in the shoulder;
(b) He gave the plaintiff exercises for his shoulder and the shoulder was not mentioned again until 17 July 2008 when x-rays on that occasion revealed the existence of DISH;
(c) After the transport accident, the first mention of any right shoulder pain was on 26 September 2008 when the plaster cast in relation to the left scaphoid fracture was being removed. At that time, the plaintiff gave a history that:
“During the MCA he braced his arms against the steering wheel. Now he has pain ++ in his right shoulder.”
Dr McCleary notes that x-rays were then undertaken of the shoulders which showed widespread degenerative changes.
In particular, Dr McCleary is of the opinion that:
“It is certain that Mr Busso did have a pre-existing condition of a Diffuse Idiopathic Skeletal Hyperostosis with an expectation of gradual worsening of the condition. However the sudden increase in pain and suffering following the accident would be directly caused by the accident. Notwithstanding the soft tissue injuries healing, the pain receptors can continue to fire and cause chronic unrelenting pain for a considerable time. This may become chronic and life long.”[61]
[61]See exhibit C at page 42 JCB
When queried about whether the aggravation of the right shoulder was still “operative”, Dr McCleary stated:
“The injuries to Mr Busso were not restricted to his right shoulder but involved other physical and emotional areas. The exacerbation of his right shoulder condition has precipitated the need for surgery and forced Mr Busso to concentrate more on his injury than to the detriment of his general life. The shoulder and other injuries are continuing to affect his daily activities and enjoyment of life. … .”
Dr McCleary also noted that the plaintiff has continuing neck pain “day and night” and has trouble due to such pain. Furthermore, such neck movements are so restrictive that he has some difficulty reversing the car and checking before turning; he sleeps with a contour pillow but still has night pain; he is limited working above his head and he has pain in his shoulders, causing him to be unable to lift an electric saw.
56 The plaintiff also relies on medical reports from his treating orthopaedic surgeon, Mr Vincent Yap, dated 18 January 2013, 6 March 2015 and 18 March 2015.[62]
[62]See exhibit C at pages 45 – 58 JCB
57 The plaintiff initially consulted Mr Yap on 25 August 2008, on referral from Dr Alan Reid, for management of the left scaphoid fracture suffered in the transport accident. At that time, he described the circumstances of the transport accident and, in particular, described his right hand bracing the steering wheel and his left hand pushing against the gearstick. Mr Yap had the x-rays from the Austin Hospital (where the plaintiff was initially treated) and he notes that such x-rays showed evidence of DISH but no obvious spinal fractures.
58 Mr Yap reviewed the plaintiff on 1 September 2008 and on 29 September 2008, when he noted that the scaphoid fracture had clinically united and he was advised to continue with physiotherapy. When reviewed on 10 November 2008, the plaintiff was still complaining of occasional left wrist pain with wrist dorsiflexion but recently, had also been complaining of increasing right shoulder pain with associated impingement symptoms.
59 Various tests were consistent with subacromial impingement of the right shoulder and he commenced treatment on non-steroidal anti-inflammatories to be coupled with physiotherapy and rotator cuff strengthening exercises for his right shoulder.
60 On review on 22 December 2008, the plaintiff was complaining of bilateral shoulder pain, which he asserted had been there since the transport accident. The plaintiff stated that the pain on the right was worse than that compared to the left and he had difficulties with overhead activities and found it difficult to lie on his right side. In his report dated 18 January 2013, Mr Yap states:
“The bilateral shoulder XRays revealed AC joint osteoarthritis, Type II acromion morphology with subacromial spurs and calcific tendonitis.
Given the persistent shoulder symptoms following the motor vehicle accident, bilateral MRI scans of his shoulders were arranged to look for any associated rotator cuff tear or labral pathology.
The severity of the subacromial spur, soft tissue calcification and AC joint osteoarthritis seemed to be linked to diffused idiopathic skeletal hyperostosis (DISH). Although injection with local anaesthetic and steroid into the subacromial space may help relieve some of his symptoms, in the long run Mario would most likely require subacromial decompression surgery to relieve the mechanical impingement.”[63]
[63]See exhibit C at page 47 JCB
61 When reviewed by Mr Yap on 20 March 2009, the plaintiff had undergone MRI scans of the right and left shoulders (on 16 March 2009). Mr Yap noted that the MRI scan of the right shoulder revealed a large supraspinatus tear associated with AC joint osteoarthritis and acromial spur, whereas an MRI scan of the left shoulder revealed similar findings of supraspinatus tear associated with subacromial spur, as well as AC joint osteoarthritis.
62 The plaintiff commenced treatment with injections of local anaesthetic and Celestone.
63 When reviewed on 6 May 2009, the plaintiff complained that his symptoms were worse on the right side compared to the left, and that the injections to both shoulders only gave him short-term relief. At that stage, the plaintiff was reluctant to undergo any surgery.
64 The plaintiff was referred back to Mr Yap a little over two years later, on 29 June 2011, when the plaintiff complained of persistent bilateral shoulder pain which had shown little improvement with treatment of injections of local anaesthetic and Celestone. At that time, there was wasting of his shoulder girdle muscles and restriction of movement, particularly on the right side. Further x-rays were arranged, and on review on 22 July 2011, Mr Yap noted that the “recent bilateral shoulder x-rays had shown evidence of subacromial spurs with acromioclavicular joint osteoarthritis”. Mr Yap also noted that the plaintiff had calcification of the subacromial bursa, as well as rotator cuff. There was also minor osteoarthritis within the glenohumeral joint, and the chronic changes seen at the greater tuberosity would indicate chronic subacromial impingement. Consideration was given for him to undergoing surgery, initially at least, on the right shoulder.
65 The plaintiff again was reviewed by Mr Yap approximately one year later, on 22 June 2012, at which time he complained of persistent bilateral pain which was worse on the right dominant shoulder, giving rise to “significant functional limitation, particularly in relation to overhead activities”. Furthermore, at that time, he complained that he lacked strength in the right arm for lifting objects beyond the level of his shoulders, and also, frequent nocturnal symptoms with difficulties lying on his side.
66 On 1 August 2012, the plaintiff underwent a right shoulder subacromial decompression in association with bursectomy and cuff repair. By 15 August 2012, Mr Yap noted that:
“Clinically, his right shoulder surgical wound had healed well. There was no irritability on passive and active range of motion.”[64]
[64]See exhibit C at page 50 JCB
67 The plaintiff was subsequently reviewed on 26 September 2012 and 19 November 2012, and on both occasions, there was ongoing improvement in his right shoulder range of motion and he was advised to continue with an exercise program. At that point, no further appointments were made to review the plaintiff unless he had further problems with his right shoulder or if his left shoulder symptoms deteriorated.
68 In his report dated 18 January 2013, Mr Yap states, in part:
“As to the causation of his bilateral shoulder symptoms, Mr Busso has Diffuse Idiopathic Skeletal Hyperostosis (DISH) which had been responsible for the formation of subacromial spur and calcification of the coracoacromial ligament. The rotator cuff tear may have been present prior to his motorcar accident in addition to the degenerative changes found affecting the acromioclavicular joint. It is also not uncommon to find rotator cuff tears in this age group. However, his symptoms of pain and weakness prior to the motorcar accident had been relatively mild. The impact during the accident may have transmitted significant axial force onto his shoulders. Mr Busso noted that, at the time of impact, he had his right hand on the steering wheel and his left hand pushed against the gear stick of his car. The impact was sufficient to cause a left scaphoid fracture and this would certainly deliver sufficient axial force to cause aggravation of his bilateral shoulder symptoms.
However, in the absence of the motor vehicle accident, Mr Busso’s bilateral shoulder conditions would have slowly deteriorate[d] in the next five to ten years given the presence of large subacromial spur and calcified coracoacromial ligament further crowding the subacromial space. The large full thickness supraspinatus and infraspinatus rotator cuff tendon tears with retraction may, in the longer term, lead to cuff tear arthropathy, a secondary form of osteoarthritis following chronic rotator cuff tear with disturbance of the biomechanics of the shoulder joint.
The right shoulder subacromial decompression surgery with repair of the full thickness supraspinatus and infraspinatus tear may help prevent the development of cuff tear arthropathy. Mr Busso had reported significant improvement in his right shoulder range of motion and pain following the right shoulder surgery, further improving his quality of life. There is currently no restrictions imposed on his right shoulder function.
The previous X-rays and MRI scans of his contralateral left shoulder also revealed similar changes with subacromial spur and calcification of the coracoacromial ligament in association with full thickness supraspinatus tear. Fortunately, his left shoulder symptoms were not severe enough to require surgical intervention at this stage. It is likely that he will require similar subacromial decompression surgery and rotator cuff repair in the near future.”[65]
(my emphasis).
[65]See exhibit C at page 52 JCB
69 Mr Yap reviewed the plaintiff on 6 February 2015. It is unclear whether such review was on referral from a doctor or effectively a review sought by the solicitors acting for the plaintiff. I do note that Mr Yap states that the plaintiff returned for “a review of his bilateral shoulder and neck symptoms”.
70 At that consultation, the plaintiff gave a history of gradual deterioration of both pain and stiffness in his shoulders, with the right shoulder being the worst affected joint. He reported problems with most overhead-related activities, including some simple day-to-day activities such as self-grooming and self-hygiene tasks. Furthermore, he also complained of occasional nocturnal symptoms, with difficulties lying on either side for any prolonged period due to discomfort. In particular, he reported he was taking Panadol Osteo three times a day for his shoulder pain.
71 Furthermore, the plaintiff reported significant neck pain and stiffness, with an element of referred pain to both shoulders. Clinical examination at that time revealed restriction of movement of both shoulders and extremely limited movement of the neck.
72 X-rays were undertaken on 6 February 2015 of the cervical spine, which confirmed the presence of DISH, with anterior longitudinal ligament ossification, resulting in bony ankylosis from C2 to at least the level of C7, together with a loss of cervical lordosis. The x-rays of the shoulders performed at that time revealed moderate degenerative changes within both glenohumeral joints. The left shoulder demonstrated a Type III beaked acromion with associated soft tissue calcification involving the coracoacromial and coracoclavicular ligaments.
73 The plaintiff was advised regarding non-operative treatment and further ultrasound-guided subacromial injection, but was advised that the mechanical nature of the impingement on the non-operated left shoulder may not respond successfully with just a subacromial injection.
74 In his report dated 6 March 2015, Mr Yap again asserted that the impact caused by the transport accident would deliver axial forces pushing upwards against both shoulders and would aggravate a pre-existing stiff condition with changes attributable to DISH. In particular, Mr Yap stated:
“… Mario had significant subacromial spurs with calcification of coracoacromial and coracoclavicular ligaments, predisposing him to development of subacromial impingement and associated rotator cuff tear. Although I do not believe that the impact itself had caused the rotator cuff tear, the significance of the impact itself may be sufficient to cause aggravation of a pre-existing shoulder pathology. In fact, rotator cuff tears are very common in his age group. In the absence of the motor vehicle accident in 2008, Mr Busso’s bilateral shoulder conditions would still deteriorate slowly given the presence of large subacromial spurs with Type III beaked acromion morphology and calcified coracoacromial and coracoclavicular ligaments. This over-crowding of the subacromial space and mechanical impingement would have certainly lead (sic) to rotator cuff tear by itself.
…
As for the recent recurrence of Mr Busso’s right shoulder symptoms, a new tear of the previously repaired tendon is possible. However, the degenerate rotator cuff tendons and changes of tendinopathy can also contribute to very similar symptoms, particularly in the presence of concomitant subacromial bursitis. Without further MRI imaging, it is impossible to ascertain the state of the previous rotator cuff repair. However, it is not unreasonable to suggest an ultrasound guided subacromial injection as both a diagnostic and minor therapeutic intervention initially. The symptoms on the contralateral non-operated left shoulder may not respond so well to the ultrasound guided subacromial injection given the significant mechanical nature of subacromial spur and Type III beaked acromion morphology, as well as the calcified coracoacromial and coracoclavicular ligaments, further crowding the subacromial space. The previous MRl imaging of the left shoulder performed on 16th March 2009 had previously indicated a full thickness supraspinatus tendon tear with retraction. With the passage of time of almost five years, successful repair of the torn retracted tendon may no longer be possible. However, a decompression surgery alone may be sufficient to lessen the symptoms associated with impingement. The most recent Xrays of both shoulders performed on 6th February 2015 had already indicated moderate glenohumeral joint osteoarthritis without superior migration of the humeral head. The long term prognosis of both shoulders remain guarded, particularly in the presence of glenohumeral joint degeneration and DISH. Mario may require shoulder joint replacement surgery in the future.
Mario’s bilateral shoulder presentation is also further complicated by the referred pain from his cervical spine affected by DISH. Essentially, Mario had a very stiff and almost ankylosed cervical spine due to diffuse idiopathic skeletal hyperostosis, causing anterior longitudinal ligament calcification and bony ankylosis. There was radiographic evidence of loss of cervical lordosis. The presence of bony ankylosis and significant soft tissue calcification would explain the severe neck stiffness and global reduction in range of motion. The neck pain and stiffness is certainly not caused by the motor vehicle accident. It is due to a pre-existing condition (DISH) that Mario suffers from.”[66]
(my emphasis).
[66]See exhibit C at pages 55 – 56 JCB
75 I also refer to the supplementary medical report from Mr Yap dated 18 March 2015 addressed to Dr McCleary.[67]
[67]See exhibit C at pages 57 – 58 JCB
76 When queried as to whether or not “the effects of the motor vehicle accident are still continuing … in relation to [the plaintiff’s] right shoulder”, Mr Yap stated:
“Mr Busso’s pre-existing right shoulder condition was aggravated by the motor vehicle accident in 2008. I expect the effects of the motor vehicle accident on Mr Busso’s pre-existing right shoulder condition to cease following the shoulder surgery in 2012.
The right shoulder radiological changes consistent with DISH … that puts Mario at inherent risk of developing subacromial impingement and associated rotator cuff tear as well as degenerative changes within the shoulder joint, are most likely present prior to the accident.
The fact that Mr Busso responded well to the right shoulder surgery tor almost fifteen months suggests that the aggravating effects of the motor vehicle accident have settled after surgery.”[68]
(my emphasis).
[68]See exhibit C at page 57 JCB
77 When queried whether “the effects of the motor vehicle accident in respect of … [the plaintiff’s] right shoulder would have accelerated any pre-existing degenerative changes in … [the plaintiff’s] right shoulder and spine”, Mr Yap stated:
“No. The motor vehicle accident merely aggravated the pre-existing degenerative change in both the right shoulder and cervical spine consistent with DISH. The accident itself does not accelerate any of the pre-existing degenerative changes within the right shoulder, particularly in the absence of any intraarticular fracture of the glenohumeral joint. The degenerative changes within the spinal column are by itself progressive in the setting of DISH and are not accelerated by the accident in the absence of spinal fracture or instability.”[69]
(my emphasis).
[69]See exhibit C at page 57 JCB
78 Furthermore, Mr Yap noted that any right shoulder impingement and associated rotator cuff tear secondary to DISH would have come to the same end point of requiring decompression surgery with or without cuff repair undertaken. Furthermore, even though a re-tear of the supraspinatus tendon in the right shoulder is “possible”, the recurrence of any symptoms in the right shoulder are likely to be secondary to the development of glenohumeral osteoarthritis which co-exists with DISH.
79 The plaintiff underwent an outpatient rehabilitation course from 24 September 2008 to 5 November 2008 at the Northern Rehabilitation Centre under the care of the rehabilitation specialist, Dr Senen Gonzalez. The plaintiff relies on the notes of that course which are set out in exhibit C.[70] Such notes make reference to complaints of low-back pain, neck pain, bilateral shoulder pain and stiffness. As at 18 December 2008, the physiotherapist notes that the shoulder pain is static but the left shoulder was recorded to be “no problem”. Following that course, the plaintiff was referred by the North Eastern Rehabilitation Centre to Mr Simon McGrath for further physiotherapy, where it is noted that he was continuing to have some neck stiffness, particularly with right rotation (which was making driving difficult) and also complained of right shoulder pain (which was making housework difficult).[71]
[70]At page 81 – 136 JCB
[71]See exhibit C at page 109 JCB
Medico-legal reports relied on by the Plaintiff
80 The plaintiff relies on the following medico-legal reports:
(a) The reports of the general surgeon, Mr Peter Mangos, who initially examined the plaintiff on 24 January 2011 and later, on 2 February 2015;[72]
[72]See reports dated 24 January 2011 and 2 February 2015 – exhibit D at pages 137 – 143 JCB
(b) The reports of the orthopaedic surgeon, Mr John O’Brien, who examined the plaintiff on 15 February 2011 and later, on 6 January 2015;[73]
[73]See reports dated 23 February 2011 and 6 January 2015 – exhibit C at pages 144 – 153 JCB
(c) The reports of the psychiatrist, Dr Nigel Strauss, who examined the plaintiff on 17 March 2011, 14 January 2015 and 10 November 2015;[74]
(d) The report of the orthopaedic surgeon, Mr Russell Miller, who examined the plaintiff on 9 October 2015.[75]
[74]See reports dated 17 March 2011, 14 January 2015 and 10 November 2015 – exhibit D at pages 154 – 179 JCB
[75]See report dated 12 October 2015 – exhibit D at pages 180 – 190 JCB
81 After his first consultation in January 2011, Mr Mangos was of the opinion that the plaintiff, as a consequence of the transport accident, had suffered the following injuries:
· Aggravated cervical spondylosis
· Severe aggravated lumbar spondylosis
· Bilateral shoulder tendonitis with supraspinatus tear and bursitis.
· Aggravated osteoarthritis of the first, second and third metacarpal joints of the left wrist; and
· Anxiety and a fear of future driving.
82 At that time, Mr Mangos obtained a “past history” that the plaintiff was a diabetic, suffered hypertension, and some two months after the transport accident, suffered a “heart attack”.
83 Later, in his report, Mr Mangos stated that the plaintiff denied having had any previous problems with his shoulders.
84 Furthermore, the plaintiff also gave a history that he has always worked in the “car industry selling second-hard cars” and at the time of the examination, continues this “occasionally” but very little since the transport accident occurred. The plaintiff complained that he was unable to return to work because of his ongoing symptoms but he is “keen to do so but finds that he tires very easily”. In particular, he complained of chronic pain and stiffness in his spine.
85 When more recently examined by Mr Mangos in February 2015, the plaintiff complained of ongoing weakness in his left wrist, a whiplash injury to the neck, injury to his back, with inability to lift and strain, and bilateral shoulder injuries, particularly on the right.
86 Mr Mangos obtained the history that the plaintiff had undergone right shoulder surgery on 12 August 2012 and although there was some improvement for “several months”, pain and reduction of movement had returned to “much the same as before operation”.
87 Mr Mangos commented that, “all in all”, his then examination revealed that the plaintiff’s condition has been mainly static since his previous examination three years ago. Mr Mangos considered the plaintiff “totally and permanently incapacitated for any form of regular work” (presumably from all the conditions that he was suffering).
88 In particular, Mr Mangos stated, in his second report:[76]
“… I have read the report of Mr Michael Shannon and his assumptions that a good deal of the injuries this man had to his shoulders were pre-dated and the injuries which occurred as a result of the accident have now abated. I strongly disagree with this. There is no doubt that he had some form of treatment to his shoulders in the past but they were not incapacitating. It must be remembered that the accident was a severe one; head to head collision and this man’s shoulders were undoubtedly seriously affected. I agree with Mr Shannon that he is suffered from diffuse idiopathic skeletal hyperostosis but with regards to the neck and back that these were seriously aggravated as a result of the motorcar accident. These in my opinion have not completely abated.
122 When examined by the rheumatologist, Dr Fraser, in August 2015, the plaintiff was complaining of increasing neck and low-back pain, together with shoulder girdle pain, but moreso on the right.
123 In particular, the shoulders were painful with any use of the arms. The plaintiff also described his neck as very stiff rather than painful. Furthermore, there is “sometimes” low-back pain that does not trouble him as much as the arms.
124 The plaintiff continued to cut the grass and vacuum the house, although floorboards rather than carpet.
125 At that examination, the plaintiff denied having any shoulder girdle pain prior to the transport accident but could recall having had low-backache from time to time which required physiotherapy. The plaintiff also informed Dr Fraser that he had suffered non-insulin diabetes mellitus for about fifteen years and furthermore, had a cardiac event in December 2008 and another in December 2014 which in each case a stent was inserted.
126 Dr Fraser had available to him the clinical notes of Dr Cleary and, in particular, those notes predating the transport accident.
127 After an examination and perusal of various radiological studies, Dr Fraser states:
“The x-rays leave no doubt about the diagnosis of diffuse idiopathic skeletal hyperostosis affecting his spine and shoulders. In the spine, there is bony ankylosis, with normal sacroiliac joints. In the shoulders there are degenerative changes involving the glenohumeral and acromioclavicular joints, as well as bony spurs and tendon calcification.
The condition is degenerative in nature and as per its name, it is idiopathic and presumably constitutional factors are involved. It generally occurs over the age of 50 and is more common in males. There is a well recognized association with diabetes mellitus. It is characterized by pain and stiffness, although the pain is usually less marked than one would expect given what are usually very prominent radiological changes.
The diagnosis was, in fact, made prior to the accident.
…
The transport accident was of course quite severe and no doubt caused soft tissue injuries, as diagnosed at the Austin Hospital Emergency Department on the night of the accident. However, notably there is no mention of shoulder pain in the hospital notes, although apparently he didn’t complain of left wrist pain either.
…
So far as his shoulders are concerned, the radiological appearances are consistent with chronic rotator cuff degeneration and diffuse idiopathic skeletal hyperostosis. There has probably been significant progression of these conditions over the years since the motor vehicle accident, but I consider that this is consistent with the natural history of such conditions and I did not consider that there is any basis for suggesting that they were in any way accelerated by trauma sustained in the motor vehicle accident.
...
Similarly, I don’t consider that any soft tissue strains affecting his spine in any way altered the natural history of the underlying degenerative condition (DISH). Any such strains would have resolved within months of the accident.
In summary, from a musculoskeletal point of view, I consider that his current condition is the same as it would have been regardless of the transport accident.
His current treatment with paracetamol as necessary is appropriate.
It follows from my previous comments that he has long since recovered from any putative soft tissue injuries and the left scaphoid fracture, sustained in the transport accident.
He was not working at the time of the accident but I would suggest that from a musculoskeletal point of view he is only fit for part-time work of a sedentary nature.”[90]
(my emphasis).
[90]JCB pages 253-4
Analysis of the evidence
128 There is no issue that the plaintiff was involved in a transport accident on or about 10 August 2008. Furthermore, there is no issue that prior to the transport accident, the plaintiff had been diagnosed with the condition of Diffuse Idiopathic Skeletal Hyperostosis, commonly known by the acronym “DISH”.
129 Consistent with the unchallenged evidence of the treating orthopaedic surgeon, Mr Yap, the orthopaedic surgeon, Mr Shannon and the rheumatologist, Dr Fraser, I accept that DISH is a progressive, degenerative condition which, as the name suggests, is idiopathic and generally occurs over the age of fifty and is more common in males. Such condition gives rise to pain and stiffness in the affected areas, including the spine and the shoulder joints. In particular, as noted by Mr Shannon, such condition can eventually lead to ankylosis of vertebrae in the spinal column.
130 Furthermore, consistent with the evidence of Mr Yap, Mr Shannon and Dr Fraser, I accept that the condition of DISH has caused the development of subacromial spurs and calcification which have predisposed the plaintiff to the development of subacromial impingement and associated rotator cuff tears.
131 In particular, I accept the evidence of Mr Yap, Mr Miller, Mr Shannon and Dr Fraser that although the condition of DISH is progressive, the transport accident would not have accelerated the underlying condition of DISH.[91]
[91]See report of Dr Fraser, exhibit 2, at pages 253 – 254 JCB; see report of Mr Miller, exhibit D, at page 190 JCB; see report of Mr Shannon at pages 236 – 259 JCB
132 Again, consistent with the evidence of Mr Yap, Mr Shannon and Dr Fraser, I find that the condition of DISH is progressive and that there has been significant progression in the shoulders of the plaintiff over the years since the transport accident.
133 After a consideration of all of the evidence, I do find that prior to the transport accident the plaintiff:
(a)Attended Mr Dohrmann in or about March 2001 complaining of a stiff and painful neck for many years and although there were no neurological features, the plain films showed “striking spondylosis with gross interior osteophyte formation”;
(b)That the plaintiff had attended various chiropractors seeking treatment for both his neck and low back;
(c)That on 3 November 2007, the plaintiff complained of (amongst other things) that he was having right shoulder pain and that years ago, he had had a steroid injection for it;
(d)That on 17 July 2008, he complained to Dr McCleary, amongst other things, that he had right shoulder pain, stiff neck and stiff shoulders. At that time, examination revealed that the neck had almost no movement, x-rays undertaken of the lumbar and cervical spines at or around those times showed extensive ossification and osteophyte formation consistent with DISH; and
(e)On 7 August 2008 (three days prior to the transport accident), he attended Dr McCleary complaining that he felt “all stiff”.
134 I also find that, prior to the transport accident, the plaintiff had been prescribed Mobic capsules to alleviate the pain that he was suffering in his back, neck and shoulders and, furthermore, on 25 July 2008 (some 16 days prior to the transport accident), he was prescribed Panadol Osteo because the plaintiff considered that the Mobic had made little difference.
135 It is, perhaps, apposite to make some comment on the credibility of the plaintiff. Essentially, I consider that the plaintiff was attempting to give honest answers to the various questions posed. However, I gained the distinct impression that the plaintiff downplayed the various symptoms that he was suffering in the back, neck and shoulders in the time leading up to and, in particular, the months prior to the transport accident. On the evidence, he was clearly diagnosed and informed that he was suffering DISH prior to the transport accident.
136 Furthermore, I found some aspects of his evidence unreliable, particularly so when discussing work activities leading up to the transport accident and, for that matter, since the transport accident. In this respect, I refer to the following:
(a)In his affidavit material, the plaintiff only refers to work up to 2005 when he deposes he “retired”. There is no suggestion in the affidavit material of any ongoing work-related activity after that date. Under cross-examination, the plaintiff confirmed that he did retire in 2005. Furthermore, the plaintiff confirmed that he does his own taxation returns and that he has not been earning any income since 2005, although he earns interest from investments. In particular, the plaintiff confirmed that he was not working as a car salesman or any other physical work;
(b)However, when examined by the psychiatrist, Dr Strauss, on 17 March 2011, Dr Straus recorded that the plaintiff told him “at the time of the accident he worked 20 hours a week as a car wholesaler”, but had given up work since the transport accident. The plaintiff accepted that he was performing wholesaling work of approximately 20 hours per week but received no money from such activity;
(c)When he attended the psychiatrist, Dr Timothy Entwisle, on 9 December 2011, Dr Entwisle obtained a history from the plaintiff that he ceased all work in 2006 when his mother died. When queried about that assertion, the plaintiff said yes, he did stop work at that time;
(d)When examined by the orthopaedic surgeon, Mr Michael Shannon, on 27 February 2012, Mr Shannon obtained a history that since the transport accident, the plaintiff had done no work, although he stated that he “had sold a few cars for friends”. When queried about this assertion, the plaintiff stated that he helps a few friends sell cars; and
(e)When seen by the rehabilitation specialist, Dr Senen Gonzalez, in or about September 2008, it is recorded by Dr Gonzalez that the plaintiff stated that he was “semi-retired handyman, odd jobs (self-employed)”. When queried about this assertion, the plaintiff said:
“… lots of time, you know, you talk with people, they tell you a lot of things and you want to piss them off your back”.[92]
[92]T63, L24-27
137 In the circumstances of this matter, there is no issue that the plaintiff suffers restriction of movement and pain in his neck, his left shoulder and right shoulder. Of course, the decision as to whether the plaintiff has discharged his onus in establishing that the infliction of any injury suffered by him in the transport accident has resulted in an impairment of the function of the neck, or right shoulder or left shoulder (or arguably the shoulders considered together) which is both “serious” and “long-term”, must be made at this date.
138 On balance, although there was a late reporting of shoulder pain, I tend to the view, consistent with the opinion of the treating orthopaedic surgeon, that there was an “aggravation” of the pre-existing DISH condition in both shoulders and neck as a result of the transport accident. I note that Mr Yap obtained a history that the plaintiff described his right hand bracing the steering wheel and his left hand pushing the gearstick, all of which would have given rise to some axial force on the shoulders.
139 I do note that Mr Shannon, when he initially examined the plaintiff, did not consider that there was any direct injury to the shoulders and, in particular, the x-rays and MRI scans demonstrated major degenerative change in the shoulders and acromioclavicular joints with bilateral longstanding rotator cuff tears (consistent with DISH). However, in his second report he accepted that even assuming there was some aggravation as a result of the transport accident, he did not consider that such condition resulted in any permanent impairment. Dr Fraser noted there was no documented evidence of any specific trauma to the shoulders but in any event, considered that any “putative jarring” which might have occurred in the transport accident would not have altered the expected progress of rotator cuff degeneration and DISH.
140 Dr Fraser, Mr Yap and Mr Shannon also considered that the rotator cuff tears seen in both shoulders were likely to be longstanding and due to degeneration or, more particularly, the progression of the DISH condition.
141 Consistent with the evidence of Mr Shannon, Dr Fraser and Mr Yap, I am not satisfied that the plaintiff has discharged his onus in establishing that any aggravation of one or both shoulders and/or the neck have resulted in impairment of those body functions which are both “serious” and “long-term”.
142 I consider that the overwhelming probability is that the ongoing restriction of movement in the shoulders and the neck and the pain suffered by the plaintiff in those areas can be explained by the progressive disease process of DISH which predisposes a person to the inherent risk of developing subacromial impingement and rotator cuff tear as a result of the progressive calcification of various ligaments and the overcrowding of the subacromial space (which would lead to rotator cuff tear by itself).
143 In particular, I note the opinion of the treating surgeon, Mr Yap (consistent with that of Mr Shannon and Dr Fraser), that the neck pain and stiffness now suffered by the plaintiff is not caused by the transport accident but is due to the pre-existing condition of DISH.
144 Mr Yap opines that to the extent that there was any “aggravation” of the right shoulder as a result of the transport accident, such “aggravation” ceased following shoulder surgery in 2012.
145 I accept the opinions of Mr Shannon and Dr Fraser and generally reject the opinions of Mr Mangos, Mr O’Brien and Mr Miller to the extent, at least, their opinions that the plaintiff’s ongoing symptoms in his left and right shoulder and neck have been caused by the transport accident aggravating the pre-existing condition of DISH. Furthermore, Mr Shannon and Dr Fraser go into some detail as to what the progressive nature of DISH involves, the likely consequences of such condition and apply that in an analytical way to the circumstances of the transport accident.
146 The medico-legal experts relied on by the plaintiff are far more generalised and just assume that there must be ongoing aggravation some seven years or more after the transport accident because of his complaints of pain in the back, neck and shoulders following the transport accident without any real attempt to analyse the nature of any “aggravation” in the context of the pre-existing and progressive disease process of DISH. Furthermore, with the exception of Mr Miller, Mr Mangos and Mr O’Brien did not have full details as to the pre-existing condition of the plaintiff whereas Mr Shannon and Dr Fraser had full details.
147 Senior Counsel for the plaintiff submitted that if the Court accepted the evidence of Mr Yap, the plaintiff should succeed, because he is of the opinion that there was bilateral aggravation of the shoulders and that both shoulders require surgical intervention. In this respect, so it was submitted, the right shoulder has been operated upon and any “aggravation” had ceased but the left shoulder is yet to be operated on, and that any symptoms in the left shoulder are a result of the aggravation by the transport accident.
148 This argument must be rejected. First, in general terms, Mr Yap was largely concerned initially with the scaphoid fracture and later, with the right shoulder. Secondly, Mr Yap, as I have already recorded in this judgment, considers that in the absence of the transport accident in 2008, the plaintiff’s bilateral shoulder condition would have deteriorated slowly given the presence of large subacromial spurs with Type III beaked acromion morphology and calcified coracoacromial and coracoclavicular ligaments, causing a crowding of the subacromial space and that mechanical opinion would have certainly led to rotator cuff tear by itself.
149 It has to be stressed that it is now some seven years after the transport accident, during which time the condition of DISH would have progressed, which then begs the question what pain, if any, is related to the transport accident rather than the underlying condition.
150 Finally, I reiterate my acceptance of the opinions of Mr Shannon and Dr Fraser and to the extent I have referred to Mr Yap, it has generally been to note the similarities of his opinion with those of Mr Shannon and Dr Fraser.
151 I should also add, that although I clearly accept that the plaintiff suffers pain and restriction in both his neck and shoulders, it is difficult to quantify how much worse is that pain and restriction compared to the pain and restrictions the plaintiff experienced prior to the transport accident. Furthermore, such a situation is made more complicated because the DISH condition is progressive and there would have been worsening restriction and increased pain over the seven years since the transport accident to date. However, I do highlight the following:
(a) Prior to the transport accident, he had marked stiffness in his neck and shoulders;
(b) Prior to the transport accident, he had been prescribed Panadol Osteo, and he continues to take Panadol Osteo, maybe at a slightly greater rate;
(c) Whereas prior to the transport accident he was undergoing chiropractic treatment for his back and neck condition, which has not continued;
(d) Although he does not do as much gardening as before, the plaintiff does continue to mow lawns and involve himself in some domestic duties;
(e) The plaintiff continues to drive and at the very least, would seemingly attend some auctions intermittently, either to meet friends or perhaps assist others selling cars;
(f) Continues to attend dinner dances which he asserts is on a less frequent basis because of pain that he suffers. Of course, it is to be noted that the plaintiff is now sixty-nine years of age and has suffered two cardiac events, causing at least on occasion symptoms of breathlessness;
(g) Although I accept there may well be difficulties with sleep, issues arise as to determining what impairment gives rise to such consequences – for example if the neck restriction of movement and pain, together with the restriction of movement and pain in the right shoulder can be presently explained by the condition of DISH, could it be said, even if was the case, that any impairment of the left shoulder brought about by the transport accident, causes such a consequence and, if so, to what extent.[93]
[93]See Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraph [24]
Conclusion
152 The application must be dismissed and I will hear the parties on the issue of costs.
Annexure “A”
1 The plaintiff tendered the following material:
Exhibit A:
·Particulars of Injury
·Affidavits sworn by the plaintiff on 25 July 2013 and 19 February 2015.
(pages 4 – 19 Joint Court Book (“JCB”)).
Exhibit B:
·X-ray of the spine dated 17 July 2008
·X-ray of whole spine and chest dated 11 August 2008
·X-ray of left wrist dated 15 August 2008
·Chest x‑ray of left rib, CT scan of lumbar spine, CT scan left wrist and hand dated 26 August 2008
·X-ray of left wrist dated 29 September 2008
·X-ray of both shoulders dated 22 December 2008
·MRI scan right shoulder dated 16 March 2009
·MRI scan left shoulder dated 16 March 2009
·Right shoulder bursal injection dated 30 March 2009
·Left shoulder injection dated 23 April 2009
·X-rays of both shoulders dated 15 July 2011
·X-rays of bilateral shoulders and cervical spine dated 6 February 2015
·MRI scan left shoulder dated 27 May 2015.
(pages 19A – 34 JCB).
Exhibit C:
·Reports of Dr Alan McCleary dated 2 February 2011, 8 July 2012 and 7 February 2015
·Patient discharge checklist and patient information from Epworth Healthcare Centre dated 3 August 2012
·Reports of Mr Vincent Yap dated 18 January 2013, 6 March 2015 and 18 March 2015
·TAC Network Pain Management Assessment request form dated 22 May 2013
·TAC Network Pain Management Program – Medical and Multidisciplinary Assessment report and treatment plan dated 22 July 2013
·Pain Management Discharge report dated 18 November 2013
·Ambulance Victoria records
·North Eastern Rehabilitation Centre document.
(pages 38 – 136 JCB).
Exhibit D:
·Reports of the general surgeon, Mr Peter Mangos, dated 24 January 2011 and 2 February 2015
·Reports of the orthopaedic surgeon, Mr John O’Brien, dated 23 February 2011 and 6 January 2015
·Psychiatric reports of Dr Nigel Strauss dated 17 March 2011, 14 January 2015, and 10 November 2015
·Report of orthopaedic surgeon, Mr Russell Miller, dated 12 October 2015.
(pages 137 – 190 JCB).
2 The defendant tendered the following material:
Exhibit 1:
·Letter from the neurosurgeon, Mr Peter Dohrmann, to Dr Ian McPherson dated 13 March 2001.
Exhibit 2:
·Progress notes from treating general practitioner, Dr Alan McCleary, dated 5 March 2007 – 30 December 2009
·Clinical records from the Austin Hospital dated 10 August 2008
·Medical reports of the orthopaedic surgeon, Mr Michael Shannon, dated 5 March 2012 and 3 October 2012
·Report from the rheumatologist, Dr Kevin Fraser, dated 21 August 2015.
(pages 191 – 231 and pages 236 – 254 JCB).
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