Clarke v TAC
[2011] VCC 959
•17 June 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGESA ND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-02609
| PATRICIA CLARKE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 June 2011 |
| DATE OF JUDGMENT: | 17 June 2011 |
| CASE MAY BE CITED AS: | Clarke v TAC |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 959 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Transport Accident Act 1986 – Section 93 – impairment to the left shoulder/ cervical spine – impairment to the left ankle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R Middleton SC with | Henry Carus & Associates |
| Ms A Magee | ||
| For the Defendant | Mr D Myers | Solicitors for the Transport Accident Commission |
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 30 May 2007 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is under s.93(17)(a) – “a serious long term impairment or loss of a body function”.
4 The body functions relied upon by the plaintiff in this application are the left ankle and left shoulder/cervical spine.
5 The inquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
7 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.
8 The plaintiff relied on one affidavit and gave viva voce evidence. She was cross-examined. She also relied on an affidavit from her husband, Stephen Clarke, sworn on 16 May 2011. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
9 The plaintiff is presently aged forty nine, having been born on 18 January 1962. She is married with two adult children.
10 The plaintiff deposed that prior to the accident she was a self employed part time self defence/karate instructor and part time hairdresser.
11 The plaintiff undertook hairdressing training after leaving school in 1979 and completed her qualifications in 1985, marrying the following year. She worked in a salon from 1987 to 1990 and then started working from home.
12 In approximately 1988, the plaintiff registered a business called Hair Court Hairdressing (“Hair Court”) which she has always operated about two days a week. This business fitted in well with her life when looking after two young children.
Summary of Earnings
Financial Year Total Income from Business of Hair Court
2004 $4,170.00
2005 $5,292.00
2006 $5,363.00
2007 $6,206.00
2008 $2,558.00
2009 $8,370.00
2010 $14,142.00
13 When cross-examined about her Hair Court income before the said date, the plaintiff agreed that on average she earned $120 per week, or $60 per day.
Martial Arts
14 Sport has always been a priority in the plaintiff’s life. In 1993, she commenced karate and martial arts at the Chikara Karate Studio (“the studio”).
15 Over the years, the plaintiff increased her training levels and in addition to increasing training hours, she started to assist teachers at the studio. Prior to the said date, she reached the first dan black belt grading, (the certificate of which she presented in Court), having taught children and coached students in karate and trained consistently at a high level to obtain that qualification.
16 To teach karate, the plaintiff obtained a Level 1 sports coaching qualification and maintained that Level 1 through the Institute of Sport and she was accredited through the Australian Karate Foundation coaches’ training program.
17 The plaintiff deposed the requirements for certification were quite onerous and she needed to prove she had undertaken a minimum number of training hours per year. She was required to attend a minimum of six courses per year and also was required to have first aid certification.
18 The plaintiff first completed the national accreditation in 2000. This accreditation was valid for three years. She also completed the national coaching accreditation qualification for the Australian Coaching Council – Karate in 2005 and updated her accreditation when required.
19 The plaintiff exhibited to her affidavit details of the hours of training she undertook with Chikara Shukokai Karate Dojo. In 2004, she completed over sixty five hours’ training.
20 The plaintiff has always been involved in community work with a particular interest in promoting safety issues, especially in relation to domestic violence and women’s safety. She set up a self defence business called Safety Solutions Programs (“the business”) which was registered in March 2003, and she took out the appropriate sports insurance through World Wide Sports Insurance.
21 In addition to the formal accreditation requirements, the plaintiff trained for her second dan black belt in karate between 2005 and 2007.
22 In the two years before the said date, the plaintiff’s commitment to karate was immense. She trained at home approximately ten hours per week and at the studio for about four to five hours a week. She also taught karate five hours a week. Further, the plaintiff trained two days a week at the Sandringham studio of the school for approximately three hours a day.
23 On average, the plaintiff was involved in karate about twenty to thirty hours per week. She also provided extra assistance to the studio on Sunday mornings where she adjudicated for belts every three months.
24 Karate was the plaintiff’s life. She loved training and loved teaching and she also gained immense satisfaction from the business.
25 It took a number of years to build up the business. Between 2005 and 2007, the plaintiff developed a number of contacts which enabled her to obtain a number of good contracts.
26 Whilst the plaintiff’s main occupation was described as hairdressing in her taxation returns, there was some income from the business before the said date which was also included in the plaintiff’s taxation returns, details of which were set out in the invoices which were tendered.
27 In cross examination, the plaintiff agreed that she did not mention any income from the business in her TAC Claim Form. In that form signed by her on 4 June 2007, she set out her type of business was “hairdresser” and that she earned approximately $400 to $600 per week up until 1 June 2007, working Thursday, Friday and Saturday on a part time basis.
28 The plaintiff taught self defence to children, women, including Moslem women, elderly citizens, the blind and other community groups. Many of these self defence classes were arranged through contacts with local politicians and the plaintiff received various letters of commendation from local MPs in relation to her efforts in this regard, a number of which were exhibited to her affidavit.
29 In developing the business, the plaintiff was able to obtain contracts which required short hours with physical involvement from her including demonstrations which paid extremely well. She was able to charge up to $100 per hour, depending on the type of class and the capacity of the particular organisation to pay.
30 Whilst the business was not producing a large income as at the said date, the plaintiff thought it had great potential. She was extremely happy with the way it was developing and she obtained great satisfaction being able to contribute to the community and to assist people, particularly those who were disadvantaged or marginalised.
31 The plaintiff had a number of pet projects which included working with elderly members of the Chinese community, the visually impaired and domestic violence victims. The plaintiff presented a self defence class on 27 April 2007 to Guide Dogs Victoria a few days before the said date.
Community Involvement
32 Before the said date, in addition to sporting activities, the plaintiff was also involved in general community activities.
33 In 1997 and 1999, she was the senior trainer and fitness adviser at the Mossgiel Junior Football Club in Endeavour Hills, for the Under 9s to Under 17s. In 2001, she received an AFL award for volunteer work.
34 The plaintiff was also involved in establishing the “Breakfast Club” at a local secondary school which provided breakfast for children at school.
35 The plaintiff was involved in developing a “Safety in Schools” program and in 2003, she was nominated by Thomas Mitchell Primary School for the National Child Protection Awards in that regard.
Pre-Accident Health
36 The plaintiff was cross examined about the condition of her left ankle before the said date. Whilst she had seen her general practitioner’s notes which described left ankle complaints and the plaintiff being x-rayed in this regard in August 2006, she could not recall having a problem with her left ankle at that time or in March 2007 as the notes detailed.
The Accident
37 On the said date, the plaintiff was travelling with her daughter towards Dandenong. Her vehicle was in the right hand lane and she intended to get onto the freeway further along at Heatherton Road. There was an opening in the road to her right where she did not see any vehicle. The plaintiff continued along the road and there was a tremendous bang and her car spun out of control when it was T-boned by another vehicle (“the accident”).
38 The plaintiff stretched her left arm over her daughter’s chest to prevent her head hitting the windscreen. Her left arm rotated at the shoulder and was extended at the wrist and elbow.
39 The plaintiff braked severely because she feared her car might go over a five metre embankment. Her car hit the embankment head on and it fishtailed into a power sign. The plaintiff’s foot was bent backwards in her car.
40 The plaintiff’s car was badly damaged and written off. An ambulance attended but the plaintiff went to her local doctor and had x-rays the following day at Dandenong Hospital.
41 The plaintiff had an ultrasound of her left shoulder on 22 May 2007 which she understood was normal. There was a further x-ray and ultrasound on 9 April 2009. The plaintiff had a CT scan of her neck in August 2007 and was advised that she had bulging at three levels. She had an MRI scan on 23 September 2008.
42 The plaintiff had a further CT scan on 12 May 2009 which she was advised showed degenerative changes at C5-6 and in the C3-4 facet joints. She underwent a cervical MRI scan on July 2010. The plaintiff had an MRI scan of her left ankle in July 2010 which was normal.
43 In 2008, the plaintiff’s general practitioner referred her to a neurologist, Associate Professor Drago. She attended him a number of times in 2008 and 2009. He arranged nerve conduction tests which were carried out in October 2008 which the plaintiff was advised were normal. Associate Professor Drago was not able to offer the plaintiff any treatment.
44 The plaintiff deposed she now feels broken, both physically and mentally. She has ongoing difficulties as a result of her left ankle, left shoulder and neck injuries which cause her problems and restrictions depending on what activity she is undertaking.
45 The plaintiff deposed it is hard to say which is the worst problem. She thought that the left ankle probably was, because it restricted her in so many ways.
46 The plaintiff has undertaken a lot of rehabilitation for her ankle, including wobble ball exercises, physiotherapy and stretches. She presently attends physiotherapy about fortnightly for treatment to her collarbone, neck and ankle. The plaintiff also does exercises at home.
47 The plaintiff takes the occasional Panadol. On average she takes six tablets a week. On some days she takes four tablets and on other days, she takes no tablets.
48 The plaintiff is currently not under specialist care and stopped seeing a psychologist as she found the sessions too upsetting.
49 The plaintiff has an ongoing psychological problem and is restricted in her driving. She does not like being a passenger in cars driven by her children. She was too scared to teach her children to drive although she had always intended to. When she drives, she is very nervous and gets very anxious when she goes past the accident scene which she has to do every day.
50 The plaintiff deposed that she cannot perform karate now mainly because she cannot run because of the difficulties with her ankle. She cannot impact kick, flex her foot back or skip. Her left shoulder and neck also restrict her ability to do karate because she cannot punch or impact punch, nor can she grapple, take down or lift weights.
51 Prior to the accident, the plaintiff was able to run whilst training and could stand for long periods. She was able to twist and turn and could undertake precision stances in karate which required her to stand on one leg and drop low. She was also able to kick without any difficulty.
52 The plaintiff deposed that after the accident she tried for about twelve to eighteen months to get back into karate training but was unable to do so.
53 The plaintiff deposed that ultimately, in March 2009, she voluntarily handed her keys back to the studio. She undertook one more martial arts commitment for the City of Casey but was unable to participate in that program the way she had done previously.
54 The plaintiff was cross examined extensively as to her karate activities after the accident. She confirmed that she continued to be second in charge teaching at the studio. She was able to maintain her accreditation and paid insurance for the business in 2008 and 2009. However, she explained she was able to do so with minimum training and attending the classes that were required.
55 When the plaintiff had described the accreditation process as onerous in her affidavit, she was referring to the amount of study involved rather than the level of physical activity involved.
56 The plaintiff agreed she earned about $3,000 from the business in 2008. A summary of the plaintiff’s business earnings after the accident was relied upon by the defendant.
57 In cross examination, the plaintiff said she got back to training at the end of 2007 with no kicking, and had returned to medium impact kicking in 2008.
58 Having been told of the history taken by her physiotherapist Ms Tan, the plaintiff agreed that she was doing “kickings” at the end of 2007 and as of January 2008 she was doing “harsh kicking”. The plaintiff explained she could then still kick but not as frequently or for as long.
59 After the accident, the plaintiff participated in karate in a very limited capacity, taking breaks from the sport for months at a time. She was not able to train hard as she did prior to the accident and she did karate at a very different level than before. She was unable to return to real running and was only able to run a little bit inside the studio.
60 In cross examination, it became apparent the plaintiff ceased karate in March 2009 following an injury to her shoulder whilst stretching after a karate class.
61 The plaintiff described how at training one night she did a stretch and she “re- hurt her collar very bad.” She was just stretching her hands behind her back. She was not doing karate.
62 After that time the plaintiff had had enough. But for her injuries, she would still be heavily involved in karate and the business. There was no reason other than her injuries to stop her involvement in the sport she loved.
63 The plaintiff denied, as Dr Kenny reported, that she still does a little bit of karate training at home.
64 The plaintiff deposed she is devastated by the fact that she is unable to be involved in martial arts any more. She is also very upset she has lost friendships with people she trained and with fellow competitors. She has received medical advice that she will not be able to be involved in martial arts in the future.
65 In re examination, the plaintiff denied getting any symptoms in her left shoulder before March 2009.
66 Since the accident, the plaintiff has had to decline many invitations to continue to present self defence programs for various community groups whom she previously participated with.
67 The plaintiff had planned a career in martial arts and defence but that had been taken away from her by reason of her injuries.
Current Restrictions
68 The plaintiff often uses Tubigrip on her ankle and wears it most times when teaching hairdressing. She is restricted in the sort of shoes she can wear because of her ankle problem, and her left foot seems bigger than the right. She has given away wearing stiletto heels and now wears boots and solid shoes because they keep her ankle firm.
69 The plaintiff’s left ankle is painful and collapses underneath her and gives way regularly. She cannot do about ninety per cent of the things she used to do before the accident because of her left foot restrictions.
70 In cross examination, the plaintiff said she meant she could not do ninety per cent of her sport, but then said she could not have got her accreditation if this was the case.
71 The plaintiff finds it difficult to do gardening. She has tried since the accident but she has a problem with bending down and leaning on her hands and squatting with her ankle.
72 The plaintiff has difficulty hanging out the washing as she is unable to reach her arms up and she has to throw the washing over the line before she pegs it on. Vacuuming is a problem and causes difficulty because of her left shoulder and neck pain.
73 The plaintiff is restricted when she dresses or undresses her upper body and it takes her much longer to do so. On occasions it can be difficult for her to self toilet and wipe her bottom because of shoulder restrictions.
74 The plaintiff has great difficulty with any movement above head level requiring the use of her shoulders. She is restricted in the amount of weight she can lift. Prior to the accident, she was very strong and could lift ten kilograms in each arm easily. She was able to do sit ups, push ups and all other exercises without difficulty. She now tries to use the treadmill at home but finds it very difficult. She is no longer able to use the cross trainer. The plaintiff tries to take the dog for a walk but after about ten minutes she cannot go any further. She cannot walk distances or run.
75 The plaintiff’s left shoulder is not as bad as it was because of the treatment she is receiving.
76 Whilst the plaintiff has continued to take an active role in community issues, she is unable to do practical martial arts components of the courses which were offered prior to the accident. As a result, she is no longer offered any type of contract work.
77 The plaintiff continues to be an advocate in relation to domestic violence issues and community activities. In 2007, she became involved in the Light Up Campaign in the City of Casey.
78 The plaintiff currently undertakes a limited amount of hairdressing at home one or two days a week, through Hair Cover. While working at home she can self pace and work in short bursts.
79 For the last three years the plaintiff has been teaching hairdressing at Hallam Secondary College (“the College”) on a part time basis, with the hours changing every year. Over the last two years she has worked thirteen contact hours per week with three hours’ preparation. She now works nine contact hours and does two hours’ preparation.
80 When she teaches hairdressing, the plaintiff is able to provide a short practical demonstration for about ten minutes and able to supervise the students for the rest of the class.
81 The plaintiff obtained this job when she was head hunted by the hairdressing department head of the College. In 2008, the plaintiff completed a Certificate IV and work placement at the College.
82 The plaintiff deposed that her two jobs are nowhere near as satisfying or exciting as the self defence career she had developed.
83 In cross examination, the plaintiff agreed that in the 2010 financial year she had her best earnings and for the first time she earned in excess of the taxable threshold.
84 In 2011, the plaintiff went with her husband on holidays to China. She had hoped to become a bit more involved in activities on the trip, and the holiday was her idea to see how she would cope. However, she found it very difficult with all the stairs and steps to be negotiated and she was very upset she could not walk along the Great Wall. She was unable to do much walking and participate in normal holiday activities.
85 The plaintiff was unable to do a lot of walking and sightseeing because her ankle was so painful and she was hobbling around like an old lady, which made her very upset and caused her concern as to what she will be like in the future. On the flight to and from China her ankle was swollen but she wore pressure socks to help.
86 In 2010, the plaintiff went to Malaysia for a week but this was a very sedate relaxing holiday and she coped without difficulty.
Surveillance
87 The defendant admitted surveillance was taken of the plaintiff in early 2011.
Lay Evidence
88 The plaintiff’s husband, Stephen Clarke, swore an affidavit on 16 May 2011. He met the plaintiff approximately thirty years ago.
89 Prior to the accident, the plaintiff was exuberant and full of life. She was very community minded. She was also able to run the home, look after their two children, be a wife and mother, teach karate, undertake volunteer work, cut hair and look after her elderly parents. She also had a very strong sense of community and was heavily involved in community work.
90 Mr Clarke confirmed the plaintiff’s involvement in setting up the Breakfast Club.
91 In his view, the accident had knocked the plaintiff around considerably and had a devastating affect upon her. He deposed she had now realised she would never be able to return to her beloved sport of karate which she enjoyed immensely. Activities in that field were the major ones undertaken by her prior to the accident and formed a considerable part of her life. Now that she is unable to undertake those activities, the plaintiff has attempted to develop other areas in her life but there is still a significant gap.
92 Prior to the accident, when Mr Clarke returned home after work, the plaintiff had prepared dinner and was then able to go out either to training or teach karate. Whilst those activities required a great deal of time, the plaintiff was still able to organise their home life, her work life, and karate commitments.
93 Mr Clarke can see the plaintiff is very upset, having lost the opportunity to continue in her chosen sport and to continue to develop her business which had great potential. Before the accident, she was able to approach politicians, media outlets, schools and other organisations to promote issues of women’s self defence and promote her business.
94 The plaintiff is now a bundle of nerves, particularly when she is driving, and she is a very nervous passenger.
95 Mr Clarke has to be very careful of what he says in front of the plaintiff as she gets upset. She was not like that before the accident.
96 On a recent trip to China, the plaintiff was not able to fully participate in the holiday and did not walk along the Great Wall. She had to wait with the guide at one spot while he continued walking.
97 In Mr Clarke’s view, the plaintiff is a very different woman since the accident and the loss of her karate has been devastating for her.
The Plaintiff’s Medical Evidence
98 The plaintiff had physiotherapy treatment from Theresa Tan at Endeavour Hills Physiotherapy after the accident.
99 Ms Tan first reported in February 2008. She thought the plaintiff suffered severe soft tissue injury to her left lateral ankle accompanying an inferior tibiofibular joint injury, severe soft tissue strain to her left cervical posterior musculature and whiplash injury to her neck. She thought the plaintiff’s ongoing cervical pain and associated headaches were explained by the CT scan findings.
100 Physiotherapy consisted of TENS, ultrasound, gentle mobilisation and a home exercise program.
101 Ms Tan reported the plaintiff had shown consistent improvement with treatment and was slowly returning to her pre-injury recreation activities. The plaintiff was then being seen twice a week for her left ankle and neck and it was hoped to wean her off treatment to once weekly after March. At that stage, a request was made for twenty further in-room visits.
102 Ms Tan reported again in July 2009. She then noted whilst the plaintiff was showing improvement in functional levels with treatment, she continued to experience ongoing headaches, left facial numbness and tingling and pain to her left ankle.
103 Ms Tan noted that since early 2009, the defendant gradually withdrew its funding for treatment and since then the plaintiff’s functional level had deteriorated.
104 Ms Tan reported that in March 2009, the plaintiff ceased work as a karate instructor due to her car accident injury. The plaintiff experienced great difficulty with physical exertion which she did not have prior to the accident. She thought physiotherapy may allow the plaintiff to eventually return to work as an instructor.
105 Ms Tan suggested it may be beneficial for the plaintiff to be reviewed by the neurologist, Associate Professor Drago, noting that she continued to suffer from facial neuralgia which it was believed was a direct consequence of her accident.
106 Associate Professor John Drago saw the plaintiff on referral from Dr Goh for neurological assessment in September 2008. At that time, the plaintiff was still working as a hairdresser and a teacher but was no longer training in martial arts.
107 The plaintiff told Associate Professor Drago that after the accident she had problems with chronic left sided facial paraesthesia and recurrent swelling and tenderness in the left side of the neck and anterior chest wall. She also had some paraesthesia down her left arm when she over exercised. She was then unable to do regular pushups but could do them against the wall.
108 On examination, Associate Professor Drago found no abnormal neurological signs but noted the plaintiff was tender on the left side of her neck in the region of the sternocleidoid and in the supraclavicular fossa and the left infraclavicular fossa.
109 Associate Professor Drago noted the results of the CT scan and the fact there was no evidence of nerve root compression. He advised he intended to write to the defendant to organise a brain and cervical MRI scan. His feeling at that stage was that the plaintiff’s complaint was due to soft tissue injury at the time of the accident and that the plaintiff appeared to have elements of Post Traumatic Stress Disorder (“P.T.S.D.”).
110 On review on 18 September 2008, Professor Drago reported that the plaintiff had ongoing left facial symptoms of tightness and pain, and some visual disturbance. Nerve conduction tests arranged by Associate Professor Drago on 14 October 2005, funded by the defendant, were within normal limits as was an EMG of the left upper limb.
111 Associate Professor Drago advised Dr Goh that at the end of the day he had found no radiological electrophysiological or clinical support for a trauma to the brachial plexus or nerve roots on the left side. He noted the plaintiff was very motivated and wanted to get back on with her life and into sport.
112 The plaintiff was reviewed in July 2009 following reported changes in the CT of her cervical spine.
113 Associate Professor Drago noted the plaintiff had gradual improvement but then went back to karate. She had increasing base of neck and left shoulder pain after stretching the abducted left arm at karate on 19 March 2009. She was later investigated with x-ray and ultrasound.
114 The x-ray was reported as showing a possible bursitis on the left shoulder with bunching on the left shoulder abduction. The ultrasound did not show any pathology. A repeat CT scan of the cervical spine showed some degenerative changes.
115 Associate Professor Drago reported the plaintiff was quite upset at the assessment that day “because she now realised she is fine if she does not do karate but her symptoms recur if she does.” She felt her livelihood had been taken away as a result of the accident.
116 On examination, the plaintiff had a good arm swing, a full range of shoulder movement, no muscle wasting, reflexes were intact and there was normal power and sensation in the left upper limbs to cold.
117 Associate Professor Drago did not find any evidence of any nerve root compression on clinical grounds and on extensive investigation when he first saw the plaintiff. He thought there was very little to be blamed on the accident.
118 In Associate Professor Drago’s view, the plaintiff had no signs of radiculopathy on that day’s assessment. He thought there was little to be gained by further investigations. He noted the plaintiff had ongoing symptoms and that these may relate to local shoulder pathology and/or non neurological soft tissue injury. He suggested a referral to a rheumatologist and advised there was nothing much he could do from a neurological perspective.
119 Associate Professor Drago thought the injuries sustained were likely to be soft tissue injuries in the region of the supraclavicular fossa and shoulder and strap muscles of the neck. Further, he thought the plaintiff was likely to have suffered a P.T.S.D. He noted she had suffered a significant loss in her future career as a karate instructor and participant. She did not report any difficulties undergoing her usual activities as a hairdresser.
120 Treating psychologist, Rosemary Steer, provided a report on 18 July 2009, having first seen the plaintiff a year after the accident.
121 Ms Steer thought the accident traumatised the plaintiff. Indicators were that her acute stress developed over time into P.T.S.D. General anxiety increased and the plaintiff also developed a driving phobia, intense and persistent to differing degrees for different driving situations, especially intense when she was a passenger.
122 Ms Steer reported the plaintiff had sustained some enduring physical injuries which resulted in her being unable to work for the last two years in her main business as a karate coach but now the plaintiff’s sense of loss was intensely felt as she had recently come to an understanding she must accept the permanent nature of her career loss.
123 Ms Steer provided the plaintiff with trauma related counseling, general counselling and grief counseling to encourage her through the adjustment she had to make, having to bow out of martial arts and self defence and leave that business behind, with its loss of network of colleagues, students and family. At that stage, it was anticipated another twenty sessions would be required to work through to settle the plaintiff’s trauma and phobia. All being well, and with no unforeseen interfering factors, Ms Steer hoped, with ten to fifteen more sessions, that the symptoms of P.T.S.D. could be reduced and the plaintiff would be helped to cope more easily with driving and related activity.
124 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on behalf of the defendant on 23 June 2008 for medico legal purposes.
125 The plaintiff complained to him of left foot pain and neck pain and stiffness. Mr Dooley noted the plaintiff used to train hard in martial arts and she no longer does. She continued her teaching of martial arts and also worked as a hairdresser three days a week.
126 On examination, there was tenderness on the dorsum of the cervical spine and over the occiput. There was restriction of movement of the cervical spine. Shoulder movements were limited and neurologically the upper limbs were intact.
127 Mr Dooley noted there was tenderness over the lateral ligament complex and over the medial ligament. There was a normal range of movement of the ankle and hindfoot and the ankle felt stable.
128 Mr Dooley thought the plaintiff had suffered a soft tissue injury to the cervical spine region and also to the left ankle. This injury involved musculoligamentous damage and some aggravation of underlying disc degenerative disease which he considered would account for the plaintiff’s ongoing neck pain and stiffness.
129 On balance, Mr Dooley believed that the plaintiff’s left shoulder girdle pain was referred cervical spine pain. He did not think there had been an injury to the glenohumeral joint. He thought it was possible that some of the plaintiff’s left shoulder symptoms related to rotator cuff pathology but thought it was difficult to be sure in that regard.
130 Mr Dooley believed the plaintiff sustained a soft tissue injury to the left ankle that had involved a so called grade three sprain with damage to the lateral ligament complex, anterior capsule and medial ligament of the ankle. He noted that sort of injury resulted in ongoing ankle pain, especially with a lot of activity and a lot of standing and that many patients would find it difficult to run after that sort of injury. Whilst the symptoms could be significant for twelve to eighteen months following that injury, he thought the natural history was for slow improvement with time.
131 Mr Dooley thought it was appropriate at that time for the plaintiff to have physiotherapy treatment once a week for the next three months and perhaps once a fortnight for the following three months. Beyond that time, Mr Dooley thought the plaintiff would be able to undertake her own exercises. In his view, the plaintiff was well motivated and certainly not resting on her laurels.
132 Mr Dooley thought the plaintiff’s symptoms had an organic basis and he did not believe there were any psychosocial issues impacting on her presentation.
133 He noted the plaintiff had returned to self defence training but was unable to perform at her pre injury level. He thought the plaintiff would continue to note some intermittent cervical spine and left shoulder girdle pain with intermittent left ankle pain.
134 Mr Dooley responded on 22 January 2009 to a letter of complaint by the plaintiff in which she stated that he was condescending to her during the interview. In that letter, he advised that he fully accepted the plaintiff’s viewpoint that she had not been able to return to her pre-injury levels in terms of training and that that related both to her physical and also her psychological response.
135 The plaintiff was examined on behalf of the defendant by Dr Kostos, rheumatologist, on 24 September 2010.
136 The plaintiff told him that following the accident she continued to work as a hairdresser two days a week but found this difficult to manage. She also told him that despite repeated attempts to keep her self defence classes open, she was unable to continue and she eventually closed her school in March 2009.
137 On examination, the plaintiff told Dr Kostos she had constant pain around the left side of her neck, extending across to the left shoulder and down the left arm. Her left ankle was constantly painful with variable swelling.
138 At the time of the examination, the plaintiff was not taking any medication but she was having physiotherapy once a fortnight and also using a TENS machine on her ankle and doing exercises at home.
139 On examination, the plaintiff’s neck movements showed a good range except for a slight restriction in left rotation with some minor discomfort. The plaintiff’s left shoulder showed restriction of most movements but in particular, there was a loss of full elevation which was associated with a definite decrease in glenohumeral abduction and external rotation.
140 The plaintiff’s left ankle showed slight restriction of both her tibiotalar and subtalar movements, with some discomfort. There was diffuse tenderness all around the left ankle. Dr Kostos also noted there was stiffness in the plaintiff’s left foot mid-tarsal joints compared with the right.
141 Dr Kostos had available to him all investigations undertaken.
142 Dr Kostos concluded that all he could state on the basis of the interview and examination was that the plaintiff had some stiffness in her neck, left shoulder, left ankle and left foot. He was not in a position to state what her original injuries may have been. However, he would accept if those areas were normal prior to the accident the plaintiff could have injured them in the accident.
143 Dr Kostos noted the plaintiff’s condition had impacted on her occupation and daily activities. He did not believe she would derive any harm from participating in these activities but it did seem they aggravated her pain. Therefore he thought the plaintiff’s prognosis appeared poor.
144 Dr Kostos was surprised by the amount of pain the plaintiff had given the findings, but he commented that there certainly were not any features to suggest she had a superimposed Pain Syndrome. He noted, certainly her neck movements were restricted in left rotation with some minor discomfort.
145 The restriction of left shoulder movement suggested the plaintiff had either damaged the shoulder joint or had developed an adhesive capsulitis as a period of immobilisation following the accident. Apart from some restricted movement of the ankle, no identifiable injury had been found.
146 Dr Kostos noted he also found some stiffness in the mid tarsal joints in the left foot which obviously could have been injured in the accident, but the plaintiff also told him her left foot was her kicking foot when she did martial arts. Whether that had anything to do with the situation, he could not be certain.
147 Dr Kostos certainly had some concerns about ongoing physiotherapy because he suspected it provided temporary muscle relaxation only. On the other hand, he noted the plaintiff had been very active in the past and still tried to exercise regularly, so he was not really sure if anything more could be done for her physically.
148 Since the plaintiff did not take any medication, Dr Kostos thought that perhaps some regular analgesia or even some low-dose Tricyclic antidepressant medication may be appropriate to help modulate her pain response. He considered her condition to be stable.
149 The plaintiff was examined by orthopaedic surgeon, Mr John O’Brien, on 15 December 2010.
150 The plaintiff told him that she was not able to continue her work as a hairdresser for two weeks after the accident and she could not do other areas of her employment which involved teaching and training in martial arts.
151 On examination, the plaintiff described continuing pain in the left side of her neck associated with some swelling and stiffness. She also described throbbing pain associated with the lateral aspect of the left ankle.
152 On examination, the plaintiff had difficulty squatting due to left ankle pain. There was restriction of cervical movement accompanied by complaint of pain in the mid cervical region on the left side posteriorly.
153 Tenderness was noted over the anterior and anterolateral aspect of the left ankle. Extension of the left ankle was six degrees with thirty five degrees of flexion. There was ten degrees of eversion and twenty degrees of inversion of the hindfoot.
154 Mr O’Brien noted physical signs demonstrated mild subjective signs, together with some restriction of cervical movement and limitation of left shoulder movement. He noted, certainly, extensive investigations had not shown any major cervical pathology and would suggest that the current symptoms related to an aggravation of underlying cervical spondylosis identified in various x-rays.
155 In Mr O’Brien’s view, there was a possibility that the left shoulder pain related to cervical pathology, however, the restriction of movement suggested that there may be some mild bursal inflammation suggested on the ultrasound examination of the shoulder joint. He thought there were certainly now signs suggestive of soft tissue and ligamentous injury in the vicinity of the left ankle which would appear to be the cause of the plaintiff’s ongoing left ankle symptoms.
156 There was restriction of movement of the left shoulder on examination, with tenderness in that region. The plaintiff also reported quite marked tenderness in the supraclavicular fossa on the left and in the region of the left sternoclavicular joint.
157 Mr O’Brien thought the plaintiff’s clinical condition was stable. He suggested her prognosis was poor as he believed she had well established chronic pain which was unlikely to improve in the foreseeable future.
158 Mr O’Brien considered there was no doubt that the plaintiff, as a result of her ongoing pain, was moderately disabled. He thought her injuries had certainly affected her employment, in particular, her involvement in martial arts as both a teacher and competitor. There had also been significant restriction in her ability to pursue hairdressing, which was now limited in its nature and hours of involvement. In fact, Mr O’Brien suggested that was a permanent situation with the plaintiff now being confined to modified duties on a limited hours’ basis. He thought there was no possibility she would return to full time employment involving full time duties and indeed, he considered she was definitely restricted in relation to her general social, domestic and recreational activities on a permanent basis.
159 Mr Kenneth Brearley, surgeon, examined the plaintiff on 20 January 2011.
160 The plaintiff told him she had two weeks off hairdressing after the accident. She avoided martial arts for three months, but when she returned she had the greatest difficulty in doing the exercises and she had to cease after a few weeks. She thereafter had various retrials during which she not only practised but taught.
161 The plaintiff advised Mr Brearley she competed at a very high level but after eighteen months she found she was not able to do training and exercise and was unable to teach and she had to shut down the business in March 2009.
162 The plaintiff complained of some limitation of the left shoulder and she was unable to hold it above shoulder height for more than a few minutes. She also complained of some left ankle pain.
163 Mr Brearley noted that before the accident the plaintiff was extremely active and a competitive sportswoman, specialising in karate. She was a keen runner and she was exceedingly fit. Now she is unable to do any weightlifting and she cannot be involved in any sport at all. Running is painful and she is no longer able to do so.
164 On examination of the neck, there was no tenderness or deformity, and movements were full. There were similar findings in relation to the left shoulder with some limitation of movement.
165 There was no swelling or deformity of the left ankle. There was some slight tenderness over the medial side of the ankle and slight limitation of dorsiflexion. Otherwise no other abnormality was noted.
166 Mr Brearley thought the plaintiff had suffered soft tissue injury of the left shoulder with minimal chronic subacromial bursitis causing ongoing discomfort and slight limitation of some movements. He noted presumably there had been some damage to the rotator cuff but there was no evidence of a discrete tear.
167 Mr Brearley thought the plaintiff also had a soft tissue injury of the neck and she still had minor symptoms as a result of some ligamentous injury to the structures of the neck. Further, she had a left ankle injury comprising some ligamentous damage; probably which was continuing to cause some ongoing symptoms.
168 In Mr Brearley’s view, these incompletely resolved injuries were limiting the plaintiff’s capacity for employment. While she could run her own business at home and teach, she was quite unfit to continue with teaching karate and training and she would not be able to resume that activity in the future as a result of the accident and injuries.
169 Had the accident not occurred, Mr Brearley noted the plaintiff would still be continuing to do training in karate and competing at a very high level.
170 Mr Brearley thought that the plaintiff’s condition had stabilised and there was no likelihood of any improvement. He considered there had been a very significant disturbance of her lifestyle and of her employability as a result of the accident and these limitations and restrictions were permanent.
171 Dr Kenny, psychiatrist, examined the plaintiff for medico-legal purposes on 4 January 2011.
172 The plaintiff told him that after the accident she took a week off work and time out of sport. She told him sport had always been very important to her and she was active in karate as a self defence teacher and doing hairdressing part time. She said she had spent four months in training for her second dan and did not actually complete it because of the accident.
173 The plaintiff was no longer fit and was very distressed by her lack of ability to involve herself in sport, which Dr Kenny noted was particularly important to her. She told Dr Kenny of some driving phobia and that she considered her memory and concentration were not good. She was inclined to cry when she thought about her losses in terms of martial arts.
174 The plaintiff told Dr Kenny that counselling was helpful in the early stages. She now sometimes found it reassuring and supportive, but she also found talking about things stirred thing up.
175 On mental status examination, the plaintiff certainly was not hallucinated, deluded or thought disordered. She was quite direct and open in the presentation of her history. There was lability of mood and there were a couple of occasions when she was tearful or close thereto as she talked about the effect on her life of her injury and also about the traumatic accident itself and her anxiety and restrictions associated with driving.
176 Dr Kenny thought there was no reason to doubt the plaintiff’s history and he thought she was attempting to give a good account of herself. He noted she was not the sort of lady who was going to exaggerate her symptoms. Indeed, he thought she was one of those people whom he was quite sure was going to manage as well as she could despite having significant symptoms. He noted, however, her symptoms were sufficient to require her to modify her activity level quite dramatically.
177 Dr Kenny thought it was appropriate to describe the plaintiff’s reaction as significant P.T.S.D. with a significant Adjustment Disorder with Depressed Mood and Anxious Mood. He thought these symptoms were permanent. Whilst there may be some gradual reduction or fading in symptoms, he felt sure she would be left with significant long term P.T.S.D. symptoms, especially the phobic anxiety component.
178 Dr Kenny noted the plaintiff had had very helpful psychological treatment for a long time and whether that was going to be helpful in the future was somewhat uncertain.
179 Dr Kenny concluded the plaintiff was a highly functioning lady before the accident, who was left with significant residual physical symptoms which were very restrictive of her recreational activities and work activities, causing her distress and an element of an Adjustment Disorder with Depressed and Anxious Mood. He also thought she has had significant P.T.S.D. symptoms. From a psychiatric point of view, he did not think she had significant restrictions on her capacity to work. He considered there would be gradual and progressive improvement over the years, but certainly not more than three per cent within the next six to twelve months, hence the plaintiff’s condition had to be regarded as stable.
The Defendant’s Medical Evidence
180 Ms Tan, physiotherapist, wrote to Dr Goh on 29 August 2007 advising that the plaintiff had been progressing well and that much of the muscle spasm in the left side of her neck had substantially reduced.
181 Ms Tan advised the plaintiff’s left ankle was doing fine and she now had a full range of movement. Further, in the plaintiff’s highly active role as a Tae Kwon Do martial arts master, she had now started on her “kickings”.
182 On 10 January 2008, Ms Tan advised Dr Goh the plaintiff had made significant progress, although there had been a little setback in the last month. The plaintiff had made a rapid recovery. She had recently returned to martial arts training and was very happy with what she was able to achieve at training.
183 Ms Tan provided the plaintiff with an ankle brace support to assist with her training, especially with those harsh kickings. The plaintiff was finding the brace quite useful and comfortable.
184 Nerve conduction tests carried on 14 October 2008 were normal.
185 Ms Quian, physiotherapist, advised the defendant on 21 April 2009 that the plaintiff had reinjured her shoulder in mid March 2009 and due to the defendant’s refusal of physiotherapy, the plaintiff had unsuccessfully attempted to self manage her pain and activity levels over the past month.
186 Ms Quian noted the plaintiff’s injury was due to resuming her job as a karate teacher. She had suffered a further increase in her symptoms, including ankle pain, shoulder pain, swelling around the neck and clavicular region and reduced cervical range of motion, and consequently she had to resign as a senior karate teacher and retire from the sport.
187 Ms Quian thought the plaintiff would greatly benefit from continuing physiotherapy as she had obtained very good relief in the past. A further eighteen visits over the next twenty six weeks was requested.
Overview
188 I am satisfied the plaintiff suffered a soft tissue injury to her left ankle involving the lateral and medial ligaments in the accident. Further, she suffered injury to her neck which has resulted in referred pain to her left shoulder, as described by Mr Dooley.
189 Although radiological findings are limited to degenerative changes in the cervical spine, all medical practitioners in this case agree that the plaintiff’s injuries are organically based.
190 In Dr Kostos’ view, there was certainly nothing to suggest a superimposed Pain Syndrome. Further, Mr Dooley thought the plaintiff’s injuries had an organic basis and did not believe there were any psychological issues impacting on her presentation.
191 There was no suggestion in this case of any pre existing neck/shoulder condition. Whilst there were some left ankle complaints set out in the general practitioner’s notes, details of which the plaintiff could not recall, as late as March 2007 in relation to which x-rays were arranged, the plaintiff was able to continue her vigorous and extensive martial arts activities before the accident without any restriction.
192 The issue for determination is whether the consequences of the plaintiff’s organically based impairments are serious and long term.
193 The weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility - per Maxwell P in Haden Engineering v McKinnon (2010) VSCA 69.
194 Whilst the plaintiff gave inaccurate histories at times to medical examiners as to her level of her karate involvement after the accident, I accept that she was a genuine, credible witness who did not overstate or exaggerate the extent of her accident related pain or restrictions.
195 A major consequence of the plaintiff’s accident injuries is their effect on her ability to participate in karate.
196 Prior to the accident, karate was the plaintiff’s life. It was a much loved recreation involving many hours training at an elite level. In addition, it was a growing business, with the plaintiff conducting courses in martial arts and self defence to a wide variety of groups in the community.
197 At the time of the accident, the plaintiff, a first dan black belt, and had been studying/training for the next qualification as a second dan from 2005, a title she was unable to achieve because of her accident injuries.
198 Because of her ankle injury, the plaintiff was unable to kick to the level she required and previously enjoyed. Further, her running and general training was severely restricted. She could not adopt the bent stance required for karate. Further, she had problems punching with her left shoulder.
199 As Mr Dooley noted on examination of the plaintiff in 2008, she “could not train hard”.
200 With these difficulties, the plaintiff managed to continue karate after the accident, maintaining accreditation for two years, participating at a lower level and engaging in much less physical activity than before the accident. Despite experiencing pain after training sessions, she persevered with her favourite activity.
201 Whilst Ms Tan, the plaintiff’s treating physiotherapist, described with some enthusiasm the plaintiff’s progress at karate in late 2007, such progress was not maintained. As of March 2009, Ms Tan reported that the plaintiff ceased work as a karate instructor because of problems with physical exertion.
202 The incident which brought her karate career to an end in March 2009 was a trifling one. The plaintiff simply extended her arms behind her, stretching after a karate class and then experienced pain in her left shoulder.
203 At the outset, liability had been initially accepted for the plaintiff’s
shoulder/neck injury condition and the plaintiff received physiotherapy
treatment in relation thereto.
204 Associate Professor Drago is the only doctor who has commented in relation to a particular event with others having a history that the plaintiff ceased karate in March 2009 because of her accident injuries. He reported that the plaintiff had gradual symptomatic improvement but then went back to full time karate. As a result of increased activity, she started experiencing increasing base of neck and left shoulder pain after stretching her left arm while in a fully abducted position at the shoulder.
205 A subsequent shoulder ultrasound was reported as possibly consistent with bursitis of the left shoulder with bursal bunching on abduction, but a later ultrasound failed to show any pathology
206 I do not accept, in those circumstances, this event in March 2009 was a separate injury, as submitted by counsel for the defendant. It was part of the plaintiff’s ongoing left shoulder complaint since the accident.
207 As treating physiotherapist Ms Quian reported noted a month later in April 2009, the plaintiff had to resign from karate because of a further increase in her ankle, shoulder and neck symptoms on resuming her job as a karate instructor.
208 I accept that up until that time the plaintiff’s shoulder, as well as her left ankle, was sore after training. Her answer in re-examination that she was not getting symptoms at all in her left shoulder at that time is at odds with her evidence generally.
209 The plaintiff’s inability to perform karate at an elite level as well as undertake teaching and demonstrations in her business following March 2009 was a tremendous loss to her.
210 As her psychologist, Ms Steer, described in June 2009, the plaintiff had –
“… to bow out of her martial arts and self defence work and leave the business behind with its concomitant grief and loss of a network of relationships of colleagues, students and their families.”
211 Similar feelings of loss were reported on examination by Dr Kenny.
212 Associate Professor Drago made similar comments in July 2009, noting the plaintiff was quite upset on examination on that date because she now –
“… realises that she is fine and does not do karate but her symptoms recur if she does. She feels that her livelihood has been taken away as a result of this accident.”
213 There was no reason for the plaintiff to give up karate and related activities save for her accident injuries. By March 2009, despite her best attempts, the plaintiff “had had enough”.
214 As Mr O’Brien stated, following examination in January this year, there is no doubt that as a result of her ongoing pain, the plaintiff is moderately disabled and her injuries have certainly affected her employment in particular, her involvement in martial arts as a teacher and competitor. Mr Brearley shared a similar view, stating that the plaintiff has a serious disability in relation to her sport, in that she is no longer able to carry it out.
215 In addition to initially significantly restricting and ultimately ending the plaintiff’s involvement in karate, the plaintiff’s left ankle and neck/left shoulder injury have had a number of other consequences.
216 The plaintiff continues to experience pain and instability and a “give way” feeling in her left ankle. She is restricted in the distance she can walk and her running ability is significantly curtailed. Whilst she can walk on the treadmill at home, she is no longer able to use her cross trainer or exercise anywhere near the level she did prior to the accident.
217 The plaintiff’s ability to enjoy activities on holidays has been significantly affected by her ankle injury as demonstrated on a recent trip to China where she was only able to walk for a short time at the Great Wall whilst her husband continued without her.
218 The plaintiff’s problems on this occasion and at other times was corroborated by her husband’s evidence, which was not challenged.
219 The plaintiff is restricted in the type of shoes she can wear to those which keep her ankle firm, and she no longer enjoys wearing heels.
220 The plaintiff’s left shoulder and neck cause her difficulty doing household tasks such as vacuuming and hanging out the washing. She is no longer able to do exercises involving her upper body such as push ups or weights. At times she has difficulty dressing and attending to matters of personal hygiene because of her shoulder condition.
221 Both working from home as a hairdresser and undertaking her teaching duties, the plaintiff is able to self pace and take breaks when she requires them.
222 The plaintiff continues to undergo physiotherapy treatment in relation to her ankle and left shoulder/neck. Dr Kostos thought her condition was such to warrant the use of some regular analgesia as of September 2010.
223 In considering the seriousness of the plaintiff’s impairment, I am also permitted to take into account the expected mental consequences of the plaintiff’s physical injury as described by Winneke P in Richards v Wylie (supra).
224 In this case, the frustration and upset experienced by the plaintiff due to the restrictions on her lifestyle and sporting activities resulting from her injuries is relevant in terms of the pain and suffering consequences.
225 As the plaintiff’s pain and restrictions have continued for in excess of four years, I am satisfied that they are long term. Medico legal examiners who have examined the plaintiff of recent times considered that the plaintiff’s prognosis is poor.
226 I am satisfied that the impairments resulting from both the plaintiff’s left shoulder/neck and left ankle considered separately are serious and long term.
227 Accordingly, leave is granted to the plaintiff to bring proceedings for damages in relation to the accident.
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