Choi v Transport Accident Commission
[2025] VCC 1048
•28 July 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-07044
| MIN YOUNG CHOI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 and 23 July 2025 | |
DATE OF JUDGMENT: | 28 July 2025 | |
CASE MAY BE CITED AS: | Choi v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1048 | |
REASONS FOR JUDGMENT
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Subject:SERIOUS INJURY APPLICATION
Catchwords: Application for finding of serious injury – Aged care worker suffering injury to right wrist – Returning to work on light duties for some months, resigning when Transport Accident Commission funding for return-to-work program terminated – Plaintiff undertaking study to qualify as practitioner in Chinese medicine – History of pain reported to examining practitioner – assertion of constant pain made in supporting affidavits not made out – Failure to avail of offered arthroscopic surgery suggestive of lack of seriousness of injury – Application dismissed.
Legislation Cited: Transport Accident Act 1986
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Cropp v Transport Accident Commission [1998] 3 VR 357; Findlay v Transport Accident Commission [2025] VSCA 126; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L B R Allan with Ms R Heffernan | Henry Carus + Associates |
| For the Defendant | Mr S Pinkstone | Wisewould Mahony |
HIS HONOUR:
Background
1Ms Choi, the plaintiff, was born in Korea in 1979 and undertook her primary and secondary education in that country. She said she completed a university degree in Korea in 2002, marrying in 2003. Her first daughter was born in 2006 and her second in 2009.
2She lived briefly in Japan, where her husband’s work had taken him.
3In December 2011, she migrated to Australia, once again relocating because of her husband’s career. (Plaintiff’s Court Book (“PCB”) 16-17, [1]-[4])
4She obtained Certificates III and IV in Aged Care and Disability Care, commencing work in June 2014 “at a retirement village in Wheelers Hill”. She was caring for high care patients with old age dementia, physical and cognitive disabilities and “occasional behavioural issues and aggression”.
5She said at that stage she “suffered from occasional left knee pain”. (PCB 17, [5])
6On 29 January 2019, Ms Choi was driving her car in Stud Road, Rowville and was stationary at a set of traffic lights when another vehicle collided with her car. She said she:
“suffered a number of injuries in the accident including a whiplash, a laceration to [her] lip, an injury to [her] right wrist and hand, injuries to [her] knees, as well as chest pain and bruising.” (Ibid, [7])
7Her husband travelled to the accident site and took her first to her general practitioner and then to hospital, where she said she “underwent a range of investigations and was discharged with medication to manage the pain”. She said she returned to her general practitioner the following day. (Ibid, [8])
8She was unable to attend her work at the retirement village and returned for a further consultation with her general practitioner a week later suffering “significant pain, particularly in [her] right shoulder”. She saw a chiropractor on 7 February 2019 “specifically in relation to [her] right shoulder and forearm pain, neck pain and lower back pain”. She said she was “suffering from right wrist pain at this point as well, but [her] other injuries were more significant at [that] stage”. (Ibid, [9] and [10])
9She said that her right wrist pain had “failed to resolve” by late February 2019 and, on referral by her general practitioner on 7 March 2019, she “underwent an ultrasound of [her] right wrist”. By May, she said she was “still suffering left knee and lower back pain, but [her] right wrist was increasingly causing [her] a lot of difficulty”. She was referred for further investigations. (Ibid, [11] and [12])
10By June 2019, she said the pain in her right wrist “had not improved” and her general practitioner referred her for an MRI of that wrist, which she “underwent on 21 June 2019”. She said, “I believe this showed a strain of the ligaments in my wrist”. (PCB 18, [13])
11In June 2019, she began attending Fiona Chan at Lifeway Physiotherapy relative “particularly” to her neck pain and received “chiropractic treatment from Ms Nari Hong and acupuncture” for her other injuries, though she received no relief for her right wrist. (Ibid, [14])
12On 2 July 2019, she attended “hand therapist Nicole Young” whom she consulted “at two weekly intervals”. She said, at that time her other injuries continued to be painful, in particular her neck and back, and these were her focus. She said, “Ms Young advised [her] to immobilise and rest [her] wrist”. She was given “a wrist brace to wear”. (Ibid, [15])
13She said that in August 2019, when her wrist condition had not improved, she was referred by her treating general practitioner to Mr Francis Ma, an orthopaedic surgeon, who recommended her to continue with hand therapy, physiotherapy and hydrotherapy. She said at that time she was seeing a physiotherapist and chiropractor “weekly” and hand therapist “fortnightly”. (Ibid, [16])
14In September 2019, she returned to work on light duties which she was “still struggling” (Ibid, [18]) with back and neck pain, as well as wrist pain. With the wrist pain failing to improve, the wrist therapist referred her to plastic surgeon, Dr Neela Janakiramanan. (Ibid, [19]) She said she attended “weekly clinical Pilates and fortnightly physiotherapy” until the end of March 2020, when COVID restrictions intervened. (Ibid, [20])
15On 14 April 2020, she said she “started seeing hand therapist Di Francis in relation to [her] right hand and wrist condition”. These consultations took place in person. (PCB 19, [21])
16On 22 April 2020, Dr Janakiramanan referred her for an x-ray and MRI of her right wrist. She said she believes that they showed “a tear in [her] wrist and a problem with the nerves”. (Ibid, [22])
17On 29 April 2020, Dr Janakiramanan told Ms Choi that “she did not recommend surgery at that stage, but said that it may be necessary in the future”. (Ibid, [23])
18She said that in May 2020, she resigned from her employment “as [her] employer did not want [her] to continue performing light work” and she did not feel she could perform unrestricted duties. (Ibid, 24]) Apparently, the Transport Accident Commission (“TAC”) had ceased funding a return to work program for Ms Choi.
19Ms Choi said that “around this time” her mental health began declining and she was referred, in May 2020, to psychologist, Ms Harsha George, whom she “started seeing in relation to [her] mental health symptoms”. (Ibid, [25])
20In July 2020, she received treatment from a TENS machine via hand therapist, Ms Diana Francis. She said this provided “some mild relief” from her symptoms. (Ibid, [26])
21By September 2020, she said she was “suffering from constant pain in [her] right wrist, which radiated up to [her] elbow” and the wrist “continued to be stiff”. (Ibid, [27])
22At the outset of 2021, Ms Choi began studying Chinese medicine. She said she:
“enjoyed the course but found that [she] had difficulty performing the acupuncture part of the work, which is a big component of it, because of the condition of [her] wrist.” (Ibid, [28])
23The continued hand therapy during 2021 left the right wrist “restricted and painful”. She continued to wear a wrist brace “to try and relieve the pressure on [her] wrist”. (Ibid, [29])
24In October 2021, Ms Choi said she discussed the possibility of wrist surgery with a hand therapist, Ms Francis. She underwent a further MRI of her right wrist and hand, which she said, “again showed a tear in [her] wrist, and degeneration”. (PCB 20, [30] and [31])
25Whilst, according to an affidavit sworn in October 2022, Ms Choi continued to suffer from the injuries she sustained in her accident with her knees occasionally aching and getting swollen, leading to difficulty climbing stairs and climbing up and down from places, her knee problems were “not as bad” as the condition of her right wrist. She also complained of “occipital aching in [her] upper neck”, which she said was there constantly but was “not as bad as [her] wrist pain”. (PCB 20, [30]-[32])
26As at October 2022, she said that her wrist was her “biggest problem”, and she suffered “ongoing aching pain” in the wrist which she said was “gradually worsening”, being worse in cold weather. She said the pain was in the middle of the wrist and on the ulnar side as well as around her thumb area. She said she also suffered “generalised pain” in her wrist. (Ibid, [33])
27She said the pain got worse when she lifted anything heavy, and doing the basic work of “taking care of [her] household” was difficult. She said she could no longer perform “heavy duties” around the house. She said she could still perform “simple cooking tasks, but cooking is generally difficult … because of the condition of [her] wrist”. She said she struggled when she had to lift anything heavy such as pots, and her wrist pain was worse “Chopping vegetables or other food also increases the pain in [her] hand and wrist”. Lifting heavy objects, she said, increased both “the pain in [her] wrist enormously and as a result … struggle with the shopping”. She said she found cleaning tasks around the house “harder”, complaining of pain “pushing or pulling the vacuum cleaner”. (Ibid, [33]-[38])
28Heavy usage of the wrist, for instance in hand washing clothes, led to an increase in “hand and wrist pain for a number of days afterwards”. She said she found gardening painful “even pulling weeds” and gardening would lead to increasing pain in her wrist “for a number of days afterwards”. She said taking her pet German Shepard for walks was now difficult “if she pulls on the lead it is very hard” for her to control the dog. She said her sleep is “disrupted now” as a result of right wrist pain, and performing personal care tasks “such as washing and drying” her hair was harder because of her wrist.
29She could not carry out her previous duties as a carer “because of the condition of [her] wrist, as well as because of [her] other injuries” and, “as a result”, she was studying Chinese medicine “in order to pursue an alternative career path”. She said nevertheless she was concerned that she would not be able to carry out the acupuncture component properly “because of the pain and numbness in [her] wrist and hand”. She said acupuncture requires a “very fine and steady motion and because of [her] hand and wrist condition” she struggled with that.
30She had ceased hand therapy because it was not helping but, as at October 2022, had persisted with “a home based exercise program which [had] been set by [her] hand therapist”, and used a TENS machine “daily” for one or two hours. She also used a heat pack but tried to avoid medication “as much as possible”. (PCB 21, [39]-[46])
31In a more recent affidavit sworn 9 July 2025, Ms Choi said that she continued to suffer pain in her right wrist together with neck pain and stiffness associated with “regular headaches”. She complained that she continued to suffer “discomfort in [her] knees” when she was walking or standing for a long period. She said she struggled to “run or to squat”. These matters, she said, impacted her “ability to go jogging, cycling or to perform gardening”. She said that she took Panadol and Ibuprofen “about once a week” and “sometimes administer acupuncture to [her] knees”. She used Chinese medicine treatments “in relation to [her] neck and knees, as well as [her] wrists”. (PCB 23, [1]-[3])
32According to Ms Choi, she continues to receive Chinese medicine treatment for her wrist condition, in particular, Moxibustion therapy. In administering acupuncture to her wrist she said she used “short, standard gauge needles which [allowed her] to perform acupuncture safely”. She said she continued to use the TENS machine for “temporary relief”. Despite this she complained that she continued to suffer from “constant pain in [her] right wrist”. She said this pain worsened when she used the wrist, leading to “increased stiffness and … swelling after doing anything which is heavier in nature, such as housework or gardening”. She complained of numbness in her right arm extending from her elbow to her fingers “during the night”, and being awakened during her sleep. She said she continues to suffer weakness in her right wrist. (PCB 25, [11]-[17]
33She complained that her right hand “feels shaky at times as a result of my wrist instability, and I struggle with tasks such as holding an acupuncture needle steady or holding a cup”. This was particularly significant to her because, she said, she was close to completing her course in Chinese medicine, explaining “After graduation, most students begin working as acupuncturists, so proficiency in acupuncture is more than just a skill it is a fundamental requirement for my chosen career.” (PCB 26, [21])
34She has not apparently returned to any paid employment since terminating her employment with the retirement village. She said the acupuncture which she administers to herself is low risk:
“and in standard treatment settings it is common to treat patients with longer, 7cm gauge needles and it is necessary to have a stable and strong dominant hand. I am concerned that my wrist condition will be a significant limitation for me in practicing my chosen career.” (PCB 26-27, [23])
35In a final affidavit sworn by Ms Choi two days prior to the hearing, she complained of the number of daily living activities and recreation which she said her right wrist injury now precluded. In particular, the preparation and baking of cheesecakes and carrot cakes, knitting of scarves and shawls, hiking and bike riding. (Plaintiff’s Further Amended Court Book (“PFACB”) 152, [4]-[6])
36She complained that she experienced “constant tiredness and lack of energy to engage in these activities”. (Ibid, [7])
37She said that her university degree in Korea was a Bachelor of Arts “majoring in English Literature and a Bachelor of Social Work”. She said consequently she had “an interest in working and caring for people”. This was what, she said, led her to work in aged care.
38She said that prior to her transport accident she was “working about 16 hours per week for Ryman Healthcare at the Weary Dunlop Retirement Village in Wheelers Hill”. (Ibid, [10])
39Whilst she returned to 16 hours per week, she never returned to full pre-injury duties. (Ibid) She had previously moved residents in wheelchairs or in recliner chairs on wheels, helped them in and out of bed regularly to go [to] the toilet and to feed them. She said following her accident she “didn’t feel [she] had the physical strength to go back to these tasks safely”. (PCB 153, [10])
40She said she had contemplated increasing her hours from 16 hours per week three days a week to working four days a week when her children started secondary college. If not for the accident, therefore, she said she would have been working those extended hours. (Ibid, [11])
41She said that prior to her accident she had contemplated undertaking a nursing course, in particular because “nurses in aged care didn’t have to work shift work”. As regards Chinese medicine, she said:
“Because of my physical restrictions, in particular the fatigue I experience in my right wrist from handling the needles for acupuncture, I don’t believe I will ever be able to work full-time hours in [the Chinese medical] profession.” (PCB 153, [11]-[13])
42She said she continued to experience “pain and stiffness in [her] right wrist from holding onto the steering wheel”. (Ibid, [14])
43Following her 2019 motor accident, Mr Choi filed a claim for compensation with the defendant, the TAC. (PCB 34-36)
44In the panel headed “Injury Details” she typed the following:
“- chest pain - from air bag
- neck pain
- whiplash
- lip injury
- contusion of mouth
- contusion of forearm - right
- contusion of chest - airbag
- lower back pain” (PCB 35)
This proceeding
45Solicitors acting for Ms Choi filed an Originating Motion dated 2 December 2024, seeking an order:
“That the plaintiff have leave pursuant to s93 of the Transport Accident Act 1986 to bring proceedings for damages for personal injury sustained on 29 January 2019 as a result of a transport accident.” (PCB 7)
Together with consequential relief.
46According to the document styled “Particulars of Injury” filed by the solicitors on Ms Choi’s behalf and dated 5 February 2025, she relied upon the two limbs of the definition of “serious injury” to be found in s93(17) of the Transport Accident Act 1986, seeking a finding inter alia that she suffers “severe long-term mental or severe long-term behavioural disturbance or disorder” as a result of the transport accident. Also in terms of paragraph (a) of the definition, findings as to long-term impairments of body functions as regards the cervical spine, the lumbar spine, the right wrist, the right forearm, the right knee and the left knee. Together with an allegation of a serious injury, being a long-term impairment of a body function by way of bilateral anterior knee pain.
47The behavioural disorder relied on was “a mild chronic adjustment disorder with depressed mood and anxiety with symptoms of traumatisation”. (PCB 9-15)
48When the matter came on for hearing before me, Mr Lachlan Allan, who appeared with Ms Ruby Heffernan for Ms Choi, relied solely upon the injury to Ms Choi’s right wrist as being the “serious injury” which they contended ought to have been found to have been suffered by her.
Expert opinions
49Mr Francis Ma, by letter dated 16 August 2019, reported to Ms Choi’s treating general practitioner, Dr Mary Anne Gonsalvez. Mr Ma stated that “the presenting problem” was “anteromedial knee pain for the past two or three months. Mild symptoms only”. Unsurprisingly, Mr Ma dealt only with the issues of knee pain. He referred incidentally “she then complained of right wrist pain and has been seeing Nicole Young, hand therapist, for that”. (PCB 43)
50As previously noted, Ms Choi received extensive hand therapy treatment from Ms Diana Francis. Ms Nikki Shortill, who describes herself as a senior practitioner of hand therapy, sent an email to Ms Francis dated 29 April 2020, reporting that Ms Choi was referred to her that day “for hand therapy following her consultation with Dr Neela Janakiramanan”.
51Ms Shortill noted that she had referred for an MRI scan “confirming a TFCC tear”. She said that Ms Choi was to:
“continue with hand therapy and gradual RTW [return to work] if possible. If she remains limited by pain in 3 months / post COVID restrictions Neela will consider a scope / debridement.” (PCB 44)
52Ms Francis reported on her treatment and Ms Choi’s condition to her solicitors by letter dated 4 September 2020. Ms Francis noted that Ms Choi was “seen initially by Ms Nicole Young on 2 July 2019” and then by Ms Francis “on 14 April 2020”. Ms Francis noted a report by Ms Choi to Ms Young:
“that she [Ms Choi] has had a sore R wrist since the time of her accident. Ms Choi reported that she has had treatment for her neck and has had chiropractic reviews and acupuncture, but not much help for her wrist even though she has been reporting that her wrist ‘isn’t right’. Ms Choi reported that she has been rested more of late and her wrist isn’t as sore.” (PCB 45)
53Ms Francis said:
“A repeat MRI of 22 March 2020 reported
- TFCC partial tear of foveal attachment
- mildly subluxed ECU tendon
- possible median nerve neuritis.” (Ibid)
54Ms Francis said:
“Ms Choi is able to work in an area of employment where she is not required to use her R arm for heavy lifting, pushing, pulling etc. Ms Choi is currently not able to return to aged care where she is required to assist dependent residents for dressing, showering, wheelchair pushing etc. (PCB 46)
55She said that Ms Choi would be able to work in an:
“administrative, clerical, sales and similar areas where there is no repetitive or heavy upper limb use required. Ms Choi may need further training as she has a limited work career. (Ibid)
56According to Ms Francis, Ms Choi might require “further surgery with a wrist arthroscopy if her pain does not reduce over the next few months”. (Ibid)
57In a later report to the solicitors dated 6 November 2022, Ms Francis reported:
“On 13 May 2022 Ms Choi reported her pain to often have a delayed onset of about 20 minutes and then it would last for about 30 minutes. Ms Choi reported the pain to be around the base of her R thumb and into the radial side of the wrist and 1st metacarpal region.” (PCB 47)
58According to Ms Francis:
“Opening tight jars and similar activities like turning on taps or opening door handles are painful.
Ms Choi still has reduced grip strength of 20 kg force for her R dominant hand (L = 25, so normal for R hand would be 27.5 kg force). This will affect her ability to do activities such as opening tight jars.” (PCB 48)
59Ms Francis concluded it was likely that Ms Choi would:
“have some intermittent ongoing wrist pain which may resolve over time or may continue at the current level of pain. Ms Choi may have some further development of joint degeneration over time more than a non-injured wrist.” (Ibid)
60Attached to that report was a document styled “THE UPPER EXTREMITY FUNCTIONAL INDEX”, setting out some 20 activities of daily living and grading the subject’s ability to engage in those activities from “Extreme Difficulty or Unable to Perform Activity” on the one hand to “No Difficulty” on the other, with intermediate ratings of “Quite a Bit of Difficulty”, “Moderate Difficulty” and “A Little Bit of Difficulty”. (PCB 49)
61This index was apparently completed by Ms Choi herself. It records only 2 of 20 daily life activities as entailing “Quite a Bit of Difficulty” viz number 2, “Your usual hobbies, recreational or sporting activities” and number 4, “Lifting a bag of groceries above your head”. Some five activities were said to be able to be undertaken with “No Difficulty” viz number 5, Grooming your hair; number 10, Dressing; number 11, Doing up buttons; number 13, Opening doors; and number 15, Tying or lacing shoes. The rest of the activities are divided between “Moderate Difficulty” and “A Little Bit of Difficulty”. (Ibid)
62Ms Choi was the subject of medico-legal assessments by orthopaedic surgeon, Dr Craig Mills, on a number of occasions. His first assessment was reported to Ms Choi’s solicitors by letter dated 17 September 2020.
63Dr Mills referred to Ms Choi was suffering “significant right wrist discomfort”. (PCB 53) The doctor noted that Ms Choi had not “undergone injections or operations. There are no plans for invasive surgery … her wrist ...” (Ibid) The doctor measured Ms Choi’s right wrist range of movement, finding an impairment of 2 per cent of the upper extremity relative to radial deviation and 4 per cent relative to ulnar deviation, with zero impairment attributable to the other ranges of motion of the right hand. (PCB 55)
64As regards the right wrist, he observed “She had no thenar wasting, normal reported sensation, no swelling and no scars.” (Ibid)
65Ms Choi underwent a further assessment by Dr Mills on 15 December 2022, which he reported to the solicitors by letter of the same date. According to Dr Mills, Ms Choi stated “that her right wrist is the ongoing significant problem”. He remarked:
“The wrist is uncomfortable on the dorsum and that is normally a 3/10 pain level, but if she gardens it is 5/10. She does get us occasional swelling on the back of the hand. There are no current plans for invasive treatment.” (PCB 68)
66Dr Mills commented on pain and restrictions to the cervical spine, knees and lumbar spine as well. Carrying out an assessment for the purposes of the AMA Guides, Dr Mills found a full range of movement of the right hand, as to all matters save ulnar deviation, where he found a 3 per cent impairment of the upper extremity which converts to a 2 per cent impairment of the whole person. (PCB 70)
67He said the prognosis “for the injuries is of no change” and “Her long-term capacity for employment is likely to be reduced hours, sedentary role; such as desk-based role; for an estimated 20 hours per week.” (PCB 72)
68Dr Mills provided a third assessment relative to examination on 19 March 2025, which he reported upon in a letter to Ms Choi’s solicitors dated 19 March 2025. Once again, Dr Mills found a 2 per cent whole person impairment attributable to Ms Choi’s right wrist, this time consisting of restrictions of radial deviation and ulnar deviation. The movement elements of the right hand were unrestrictive. (PCB 81) He said:
“She has normal finger movements involving the distal middle and MCP joints and normal thumb movements. There are/is no wasting issues of relevance and she has normal small (lumbricals and interossei) muscle flexibility and function. She has wrist tenderness which is in the mid-wrist. She has a relatively normal grip strength.” (Ibid)
69As to a return by Ms Choi to her pre-injury duties, Dr Mills said that, in his opinion, Ms Choi “would be unable to work long term at normal hours in that role at the present time and for the foreseeable future”. (PCB 83) He said:
“it is possible that she may require further invasive treatment by way of injection, (noting she is and will continue to use splints), with a remote prospect for invasive major treatment … but not zero risk of that outcome.” (PCB 84)
70Ms Choi also underwent examination assessment as to emotional issues by consultant psychiatrist, Dr Michael Epstein, who interviewed her remotely via Zoom on 17 September 2020. According to the doctor:
“She said she has constant pain over the lateral side of her right hand and right wrist extending to her right forearm. She said her right hand feels weaker than her left hand. Her right hand pain is worse with lifting and using a vacuum cleaner and after chopping food.” (PCB 96)
71The doctor diagnosed Ms Choi as suffering “a chronic Adjustment Disorder with depressed mood and anxiety with symptoms of traumatisation”. (PCB 99)
72The doctor carried out a second assessment by way of remote interview via Zoom on 4 April 2023, and reported to Ms Choi’s solicitors by a letter of the same date. According to the doctor:
“From 23 April 2020 she [Ms Choi] did not have any work duties for two to three weeks as the TAC had stopped paying her wages to her employer. She was given an option of returning to her pre-injury duties that involved heavy lifting or working on a casual roster in a low care setting with no guaranteed shifts or light duties.” (PCB 106)
73As to her right wrist, the doctor recorded:
“She does some sweeping and still uses a Dyson stick vacuum cleaner for 20-30 minutes. She cleans the three bathrooms and toilets doing one a day. She puts clothing in the washing machine and hangs clothing on a low line. Her husband helps her with food preparation and cooking but she has more pain afterwards. She cannot cut hard food or lift heavy pots. She washes the dishes. Her husband does the garden and lawn maintenance. She does some shopping. She carries parcels with both hands.” (PCB 108)
74The doctor observed:
“She had full range of movements of the fingers of her right hand but thought her right hand grip was weaker than it had been. She said she thought she had some swelling of her right hand.” (PCB 109)
75Orthopaedic surgeon, Dr Avanthi Mandaleson, assessed Ms Choi on 24 November 2022 for medico-legal purposes. According to the doctor:
“Ms Choi described her current symptoms as dorsal and radial-sided wrist pain, whereas this was previously dorsal, and central and ulna-sided. She experiences numbness in the right arm from the elbow to the fingers at night-time, worse in the little and ring fingers. She wakes due to the numbness. She feels weak in the right side compared to the left. She has noticed swelling in the first web space. She feels stiffness in the fingers and wrist, but no clumsiness or loss of dexterity. The injury has affected her ability to perform functional tasks. She described difficulty with personal grooming, chopping vegetables, vacuuming, carrying grocery shopping bags, washing dishes, cleaning the bathrooms, and changing the beds.” (PCB 117-118)
76He said:
“The imaging and clinical examination supports a diagnosis of chondral injury to the right wrist lunate bone, right distal radioulnar joint minor instability secondary to a radioulnar ligament tear, index finger CMC joint capsular injury, and right hand intrinsic muscle tightness.” (PCB 118)
77Dr Mandaleson provided further assessment to Ms Choi’s solicitors dated 25 March 2025. It is unclear whether this further report was the result of a further examination of Ms Choi or proceeded simply upon a review of written material. Dr Mandaleson referred to the Chinese medicine course of study being pursued by Ms Choi, remarking “she has some limitations with acupuncture needles with hand tremor”. (PCB 123)
78He also recorded that Ms Choi “has difficulty opening jars and tremors when holding cups and acupuncture needles”. (PCB 125) He recorded Ms Choi’s symptoms in similar terms as in his first report (PCB 127), concluding “Ms Choi has capacity for administrative and non-manual activity working up to fulltime hours. Avoiding regular gripping, twisting, lifting and pushing is recommended up to 1kg.” (PCB 128)
79His prognosis was:
“fair. Ms Choi has a high level of function without significant functional disability from the right hand injuries although it does cause pain. If left untreated, her symptoms are likely to remain stable or show slight improvement over time but unlikely to deteriorate or cause arthritis or other problems in the hand and wrist.” (Ibid)
80Occupational health specialist, Dr Eman Awad carried out an assessment of Ms Choi for medico-legal purposes, reporting to her solicitors by letter dated 25 March 2025. Under the heading “Function Post-Injury”, Dr Awad reported:
“She can sit, stand and walk 3,000 steps without difficulty. She is able to wash and dress herself and put her bra on. She can reach her bottom with her right hand. She drives short distances as she gets anxious if she does not know the way or has to drive further. She can write but has pain after prolonged writing. She does not drop items but her hand trembles on focus. She tells me she is able to type. She indicated that opening a jar is difficult. She is able to do buttons, chopping is painful and brushing her teeth is okay.” (PCB 132)
He observed:
“Her hobbies are camping and cycling, both of which she can no longer do secondary to the position she has to adopt and her knee pain. She does not smoke, drink or take any illicit drugs.” (Ibid)
81The doctor noted that Ms Choi “has an above average IT skills”. (PCB 133) He observed:
“She could ulna and radial deviate, but this caused her significant pain. She was able to form a fist but had reduced grip strength on the right compared to the left.” (Ibid)
82He concluded that Ms Choi had “no capacity for her pre-injury duties and there are no workplace adjustments that could facilitate her return to work”. He continued:
“She should be permanently medically restricted from undertaking any roles that require to push, pull, lift, carry more than 5 kg with her right upper limb, grip, grasp or repetitive movements, and exposure to whole body vibration for the foreseeable future. This is a permanent partial incapacity.
When taken into consideration her age, the nature of her injuries, the level of education, her current studies, her qualifications, her occupational history, and the length of time out of employment, in my opinion, she retains a residual partial capacity for a sedentary role for 30 hours.” (Ibid)
83Ms Choi underwent a medico-legal assessment at the request of her solicitors with Dr David Weissman, who made his assessment on 21 May this year by Zoom. The doctor recorded Ms Choi as telling him that immediately after the transport accident:
“She had pain in her face and a lip laceration. She had mild seatbelt bruising.”
84The doctor continued:
“On specific questioning, at that point in time [viz, just after the accident] she didn’t have any discomfort in her right wrist/hand (she is right hand dominant), however there was a mark on her right wrist.” (PCB 138)
85He said she told him that the following day she developed pain in the:
· Neck
· Back, especially lower back
· Right wrist.
86The doctor concluded:
“On purely psychiatric grounds alone, Ms Choi continues to suffer from a moderately severe group of transport accident-related psychiatric conditions and mental injuries, in my view.” (PCB 147)
87In April 2020, upon referral from her treating general practitioner Dr Gonsalvez, Ms Choi was assessed for treatment and opinion by Dr Neela Janakiramanan, who reported to Dr Gonsalvez that whilst Ms Choi had been doing her aged care work “on light duties” since last year:
“It is notable that overall her pain is better, and her main concern is wnsuring [sic; scil ensuring] that there is nothing that will exacerbate the pain when she returns to work [scil normal duties].” (PCB 155)
88The doctor found:
“a very mild degree of instability at the DRUJ, and the ECU feels woody and hard, but is not tender and does not sublux. I was not able to elicit any significant pain today.” (PCB 155)
89The doctor suggested further imaging by way of X‑ray “to assess her ulnar variance, and MRI to look at her TFCC and ECU tendon.” (PCB 155) A week later Ms Choi had a further consultation with the doctor, whose specialty is plastic and reconstructive surgery for the hand and wrist. The doctor reported:
“Her MRI has confirmed a TFCC tear, but this does not look or feel structural, and is more analogous to a meiscal [sic; scil meniscal] tear in the knee, which can catch and pull at certain angles causing ongoing pain. At this stage, as her pain is under control, I don’t think she requires surgical intervention. If, however, her return to work is accompanied by increasing ulnar sided pain, then she may need an arthroscopic procedure to tidy up the TFCC”. (PCB 156)
90Chiropractor Dr Nari Hong of Re-Liv Solutions provided a report to Ms Choi’s treating general practitioner Dr Gonsalvez by way of letter dated 1 July 2019. According to Dr Hong, her initial consultation was about 10 days after the accident:
“Upon initial examination, cervical range of movement was restricted in all direction whereas gleno humeral joint movement was within normal range. Elbow and wrist movement was also limited all direction due to pain. Based on examination, I have diagnosed her condition as post MVA joint dysfunction and muscle weakness of the right arm and neck.” (PCB 157)
91The doctor continued:
“After 3 treatments, her forearm and chest pain were reduced moderately. However, she noted her neck felt stiffer. Since then Ms. Choi complained neck and shoulder pain more than arm pain.” (PCB 157)
92She said that upon initial presentation on 7 February 2019 Ms Choi complained of:
“1. Right anterior forearm pain
2. Right neck and shoulder pain with right sided headache
3. Right chest pain
4. Lower back pain referring down to left leg” (PCB 157)
93In September 2019, at the request of the Transport Accident Commission, Ms Choi underwent a medico-legal assessment by consultant occupational physician Dr Majid Rahgozar, who reported on the assessment, which occurred on 24 September, by letter to the Commission dated 30 September. The doctor recorded Ms Choi as telling him, relative to the transport accident:
“she did not have a head strike or loss of consciousness; however, while forcefully grabbing the steering wheel, had overstretching and hyperextension injury to the right wrist and hand. She stated that she had pain, swelling, bruising and scratches on the right wrist and forearm as well as chest wall pain and bruising as a result of seatbelt.” (Defendant’s Court Book (“DCB”) 6)
94As to current symptoms, the doctor noted a report of “mild to moderate pain” “upon frequent bending and twisting of her neck and back”. He continued:
“She reported no pain at rest in the right wrist or hand, however, upon forceful grabbing, grasping, lifting more than a kilo or two, she experiences pain in the dorsal aspect of the right wrist.” (DCB 7)
95The doctor commented that Ms Choi presented “with a rather complex clinical presentation.” Commenting on the nature of the accident, he said:
“Therefore, trauma to the right upper limb and chest wall as a result of the motor vehicle accident is likely.” (DCB 9)
96He said:
“In my opinion, given the length of time that she is experiencing right wrist pain and MRI findings suggestive of wrist joint capsule injury, referral to a hand surgeon for further assessment and management is reasonable.” (DCB 10)
97Almost four years later, Ms Choi attended another medico-legal assessment at the request of the Transport Accident Commission, this time with consultant orthopaedic surgeon Dr Andrew Menz, who conducted his examination on 30 August 2023. Dr Menz recorded:
“The current situation is that she has minimal symptoms in her right wrist and when she does some heavy work, it does aggravate.” (DCB 14)
98Noting the 2020 referral to plastic surgeon Dr Janakiramanan, he said:
“She has not had any surgery to her wrist and does not require any. Prior to this accident, she had never had wrist problems before.” (Ibid)
99Under the heading of “Examination of Right Wrist”, Dr Menz recorded:
“This examination was essentially quite normal. She had a full and pain-free range of movement of the right wrist. There was no soft tissue swelling. There was no tenderness and she had normal grip strength.” (DCB 15)
100About three months ago, on 14 April 2025, Dr Menz conducted a further assessment of Ms Choi at the request of the Transport Accident Commission. Surprisingly, this assessment was confined to the cervical spine, the lumbar spine, and the right and left knee. The doctor remarked that his assessment in 2023 “was solely related to her wrist problem which I said had resolved by that timeframe.” (DCB 25)
101On 12 October 2023, at the request of the Transport Accident Commission, Ms Choi was assessed by Dr Joseph Slesenger, specialist occupational physician. As to Ms Choi’s right wrist, the doctor recorded:
“Her right wrist symptoms developed immediately after the accident (although it appears that there was some delay in accessing treatment with regard to her right wrist). She advised of residual pain in the right wrist, radiating into the forearm with restricted range of movements in her wrist and weakness in the wrist.” (DCB 36)
102On examination, Dr Slesenger found identical ranges of movement in both right and left wrists, save that right wrist radial deviation was to 30 degrees greater than the corresponding range of motion in the left wrist which he measured at 20 degrees. (DCB 40) As regards the right wrist, he noted “there was tenderness over the extensor surface of the wrist.”
103Having referred extensively to the reports of other examiners and radiological investigations, Dr Slesenger said:
“With regard to the right wrist and taking into account evidence of evolving symptoms distal to the site of the initial injury, including facial injuries and knee injuries, I am of the opinion that the right wrist impairment is not incident-related.” (DCB 45)
104Dr Slesenger conducted a further assessment at the request of the Commission on 12 May 2025, reporting by letter dated 23 May 2025 to the Commission’s solicitors. As to “current symptoms”, the doctor said:
“Her right wrist symptoms persist with pain over the extensive surface of the wrist from the fingers to the elbow. She advised that the pain is mild in severity.” (DCB 53)
105As to the right wrist, the doctor observed:
“Inspection: revealed no trophic changes and no scarring. The joint was stable. There was no mottling. There was no alteration in hair distribution.” (DCB 56)
106He continued:
“Palpation: there was no tenderness. There was no effusion. There was no increased temperature in the overlying skin.”
107He found an identical range of movements in right and left wrists. (DCB 57)
108Dr Slesenger observed, “There was no evidence to support an initial right wrist injury.” (DCB 52)
109At the request of the Commission’s solicitors, Ms Choi attended an assessment with hand and plastic surgeon Mr Thomas Robbins on 9 April this year. In his report of the same date, Mr Robbins reported:
“I could find no clinical abnormality in her right wrist or hand. It is normal in appearance with a full range of movement, no abnormal contours and no tender areas.” (DCB 63)
110He said Ms Choi claimed “a mild but constant pain along the back of her wrist and hand and that this is aggravated by using her hand and by movements of her wrist. I could find no explanation for this.” (DCB 63)
111The doctor said that:
“MRI of her right wrist indicated partial ligament tears and minor degenerative changes. These changes I believe are unlikely to have been caused by the motor car accident and more likely pre exist the accident.” (DCB 63)
112He said:
“The mild degenerative changes noted in the special investigations are common without accident to the wrist. The wrist was of normal appearance and function.” (DCB 63)
113He said he could see no reason why Ms Choi’s “right wrist injury, if real, would interfere with her ability to work.” (DCB 64)
114An MRI of Ms Choi’s right wrist, carried out 21 June 2019, reported:
“Strain of the dorsal extrinsic capsular ligaments and a partial tear of the dorsal radioulnar ligament. ECU tenosynovitis”, (PCB 38)
reporting that no fracture was identified, and:
“Triangular fibrocartilage and triangular ligaments are intact. Small effusion present in the distal radioulnar joint. There is a partial tear of the dorsal radioulnar ligament but its volar component is intact. Tenosynovitis present of the ECU tendon sheath but the tendon is normal. The remaining volar and extensor surface tendons and tendon sheaths are normal. The median and ulnar nerves are normal.” (PCB 38)
115An X‑ray and MRI of the right wrist conducted 27 April 2020 at the request of Dr Neela Janakiramanan found:
“1. Partial tears of the foveal aspect of the TFCC with further injury to the meniscal homologue. 2. Mildly subluxed ECU. No ECU tendinosis. 3. Thickened fascicles of the median nerve suggesting a degree of median neuritis.”
116The X‑ray found no fracture to the right wrist. (PCB 39-40)
117Further MRI of the right wrist conducted 12 May 2022 concluded:
“Mild degenerative change between lunate and ulnar styloid with tear of the capitate attachment of the TFC in this region.
Minimal degenerative change of the radial styloid/scaphoid articulation.
Minimal degenerative change of the STT and thumb carpometacarpal joints.” (PCB 41)
Legal considerations
118The Transport Accident Act 1986 establishes a regime whereby there is a general compensation scheme for persons injured in transport accidents in Victoria without proof of fault. Correspondingly, however, the Act restricts the entitlement which an injured person might otherwise have to claim damages for negligence. Section 93(1) excludes damages claims except in accordance with the provisions of the section. Sub-section (2) allows a person injured in a transport accident to recover damages in respect of the injury if the injury is “a serious injury”. Sub-section (17) defines serious injury as follows:
“"serious injury" means—
(a) serious long-term impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) severe long-term mental or severe long-term behavioural disturbance or disorder; or
(d) loss of a foetus.”
119Sub-section (3) provides that an injury is to be deemed a serious injury if, in accordance with the permanent impairment provisions of the Act, ss46A, 47(7) or 47(7A), the degree is determined to be 30 per cent or more. Where no such determination of impairment of 30 per cent or less has been made, the damages claim may only be brought if a court gives leave in accordance with ss(4). This requires the application of the definition of “serious injury” quoted above. This is commonly referred to as the “narrative” test.
120In the present proceeding, the plaintiff relies solely on paragraph (a) of the definition. The classic exposition of the operation of the definition of “serious injury” which applies in this case is to be found in the joint judgment of Crockett and Southwell JJ in Humphries & Anor v Poljak [1992] 2 VR 129. Their Honours said:
“… 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" Beyond such guidance it is, we think, not possible to go.” ([1992] 2 VR 129, 140)
121Mr Allan and Ms Heffernan contended that a passage in the judgment of Ormiston JA in Cropp v Transport Accident Commission [1998] 3 VR 357, in which Charles JA concurred, was particularly applicable to Ms Choi’s case. Speaking of what consequences of a transport accident would mark out a plaintiff’s injury as “serious”, his Honour said:
“Inability to earn any income almost invariably will, and an inability to earn one’s former income will more often than not, have an effect of characterising an impairment or loss as serious. It does not follow, however, that one must be able to predict with a reasonable degree of certainty the inability of the applicant to earn an income into the indefinite future. If it has prevented the applicant from earning an income for a number of years and if that applicant requires retraining in circumstances where it is uncertain whether that applicant will successfully re-enter the workforce, then the impairment or loss may, depending on the circumstances, be characterised as serious, without the necessity of showing that the inability to earn an income is itself long-term. The impairment or loss must be long-term, i.e. at least extending beyond a few years, but the consequences may be serious and thus the impairments or loss serious without it having to be shown that the particular consequences as to inability to earn income also continue into the indefinite future.” ([1998] 3 VR 357, 360-1)
Conclusions
122An initial question that arises is whether the admitted “tear of the capitate attachment of the TFC” in Ms Choi’s right wrist is accident-related. Mr Pinkstone, on behalf of the Commission, in cross-examining Ms Choi, emphasised the delay in complaint as to injury to the right wrist after the accident and its absence, as an injury suffered in the accident, from Ms Choi’s claim form lodged with the Commission. The Commission’s medico-legal experts, Dr Menz and Mr Robbins, expressed the view that the “tear” was not accident-related, as the summary of their reports has indicated. It was not entirely clear if, ultimately, Mr Pinkstone pressed this point on behalf of the Commission. He certainly did not press it in any full-blooded manner.
123Mr Allan and Ms Heffernan referred to the Court of Appeal’s recent decision in Findlay v Transport Accident Commission [2025] VSCA 126 where the Court (Beach, Kennedy and Kaye JJA) reversed a determination by the primary judge that colitis suffered by the plaintiff was not accident-related. Without finding any particular error on behalf of the primary judge, their Honours stated:
“As has been said before, a serious injury application is a ‘gateway’ proceeding, usually conducted with no oral evidence other than that of the plaintiff. The result of the application does not give rise to any liability to pay damages. Nor does it create any relevant issue estoppel. This Court has previously held that a plaintiff in a serious injury application must prove causation. However, the question, whether the evidence tendered in such a gateway application is sufficient for that purpose, needs to be considered in light of the limited purpose for which the question is being asked, and in light of the more limited scope of the evidence adduced on that issue than that which might be adduced in a full trial.” ([2025] VSCA 126 [61])
124The Court reversed the primary judge despite the fact that her Honour’s reasons were “quite plain” and that her “path of reasoning was well expressed and clear” and that the reasons complied “appropriately with the requirements for the provision of adequate reasons for judgment.” [66]
125In the present instance, conscious of the observations made by their Honours, I put to one side the doubts which I entertain as to the causal link between the transport accident as described and the injury as revealed by radiological examination. It remains unclear to me how Ms Choi’s grasping the steering wheel of her motor vehicle could have been causative of the tear. The delay in complaint as to the right wrist, albeit relatively brief, is also suggestive of a lack of causal link to the transport accident.
126I will proceed upon the footing that the injury to the right wrist is accident-related.
127At the forefront of the case advanced by Mr Allan and Ms Heffernan on behalf of Ms Choi was that the injury to the right wrist deprived her of a career in aged care, placing reliance on the remarks of Ormiston JA in Cropp’s case.
128Mr Pinkstone denied that this was an accurate view of what had happened. He referred to language adopted by Ms Choi in more than one place in her affidavits describing Chinese medicine as her “chosen career”. She is about to qualify as a practitioner in that profession.
129There is ample material to doubt that, in terms of the classic formulation of what constitutes a serious injury, the present injury is “very considerable”. In her affidavit sworn 16 June 2025, Ms Choi said “I continue to suffer from constant pain in my right wrist.” This is plainly an exaggeration. In cross-examining, Ms Choi agreed that “in the last three years, or thereabouts” her pain levels have been stable. (Transcript (“T”) 66, Lines (“L”) 25-27) As at 25 May 2022, Ms Choi had told hand therapist Ms Diana Francis that her pain came on approximately every 2-3 days and could last from one to two hours. (PCB 47) She had told Ms Francis, however, that attempts to unscrew tight jars would bring on wrist pain. (PCB 48) Challenged on this point, Ms Choi said “I have a little bit of mild and constant stiff pain all the time, but I can avoid the pain if I do not do physical activities”. (T48, L9-11) Perhaps a better description, based on this account, would be that the right wrist pain is “fluctuating”; but this would be inconsistent with the account given to Ms Francis in May 2022.
130As part of her Chinese medical studies, Ms Choi has been required to prepare and submit over 100 assignments, which she has been able to prepare and submit (T60-61). With some 32 subjects to be completed in the course, this required the typing of over 100 such assignments (T98, L7-17). Ms Choi complained of limitations on previous recreations such as camping and cycling, but any such restrictions derived from injuries or restrictions to her knees, not to her right wrist. The knees are not relied upon for the purposes of the present application. Restrictions on driving are said to derive from anxiety, and no reliance is being placed upon any psychological or psychiatric impairment. Ms Choi has a full range of movement in her right hand, as demonstrated to a number of examiners and in the witness box.
131Ms Choi’s work in aged care was a career in the sense that she undertook work to obtain multiple certifications to qualify her for the work. It was not a career in the traditional sense of one undertaken full-time as the principal or a principal means of support for an individual or a family. Her work at the retirement village was 16 hours per week, worked over three days. (T22, L22-25) She told Dr Epstein that she had reduced her work hours from four days a week to three days a week in 2015. Cross-examined on these points, she seemed strangely unforthcoming. (T23) The narrative shows that she has moved first to Japan, and secondly to Australia, to facilitate her husband’s career.
132Whilst Ms Choi has not been employed for wages or salary since she terminated working on “light duties” at the retirement village, it is difficult to regard her as having been in the situation described by Ormiston JA in his analysis in Cropp’s case as being unable to earn any income. As at least one examiner found, she has good IT skills. Her success in completing or almost completing her studies in Chinese medicine is testament to this. Implicitly, therefore, there would be a range of administrative and sedentary occupations which she could in the future, and could have in the past, engaged in, had she wished to do so. The premise of the reasoning of the majority in Cropp’s case (Hayne JA, as he then was, dissented) was that Mr Cropp’s lack of income was forced upon him. I cannot regard Ms Choi as being in the same situation.
133Mr Pinkstone relied on the decision of the Court of Appeal in Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1, where, in giving guidance to primary judges as to how to assess pain and its consequences for the purpose of serious injury applications, the learned President of the Court of Appeal, Maxwell J, said:
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff's pain; and
(d) what the objective evidence shows about the disabling effect of the pain.” ((2010) 31 VR 1, [11])
134In the present instance, as to paragraph (a) of his Honour’s formulation, the plaintiff’s affidavit material asserted that her right wrist pain was “constant”, yet her evidence under cross-examination was in substance that it was fluctuating. The histories which I have rehearsed above are not supportive of the proposition that her pain was constant. In particular, the history given to hand therapist Diana Francis in May 2022 was to the effect that the pain was intermittent. Ms Choi does not take any prescription analgesia for relief of the pain. The use of a TENS machine is mentioned in histories and in her affidavits, but received little or no attention in her viva voce evidence. Most significantly, to my mind, is that whilst she did not receive a distinct advice from her plastic surgeon to have arthroscopic surgery on her right wrist, the effect of the advice was that, should her pain persist, such surgery might be undertaken. There was no clear explanation as to why this option was not taken up. According to Ms Choi:
“she [the surgeon] asked me it’s optional, is – depends on your choice. So I said, um, I went to get other treatment, not surgery right now.” (T49, L19-23)
135Ms Choi continued:
“If she recommends very strongly, yeah, ‘it’s really necessary to you’, I probably – yeah, I say ‘yes, but it’s optional, yeah?’, so I just chose not to do it.” (Ibid, L25-29)
136If Ms Choi’s symptoms were denying her a career in aged care or Chinese medicine or left her in constant pain, as the case which is made on her behalf suggests, surely she would have taken up the option of arthroscopic (keyhole) surgery to obtain what the surgeon suggested would have been an improvement in her wrist condition.
137For these reasons, I conclude that the injury to Ms Choi’s right wrist does not meet the requirements for a “serious injury” as defined in s93(17) of the Transport Accident Act 1986 (Vic).
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CertificateI certify that these 28 pages are a true copy of the judgment of his Honour Judge Macnamara delivered on 28 July 2025.
Dated: 28 July 2025
Jodie Daniel
Associate to His Honour Judge Macnamara
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