Couldwell v Transport Accident Commission
[2022] VCC 885
•17 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-04623
| SAMANTHA COULDWELL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 September 2021 | |
DATE OF JUDGMENT: | 17 June 2022 | |
CASE MAY BE CITED AS: | Couldwell v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 885 | |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986 – s93(17) – serious injury application – injury to right upper limb, right hip and spine suffered in transport accident – occurrence of accident not disputed – dispute centred upon plaintiff’s previous medical history and whether her pain is not organic – whether burden of proof discharged – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Winneke QC with Mr B House | Henry Carus + Associates |
| For the Defendant | Mr C Blanden QC with Ms J Clark | Solicitor for the Transport Accident Commission |
HIS HONOUR:
(a) General background
1This matter comes before me by way of an application pursuant to s93(17) of the Transport Accident Act 1986, hereinafter referred to as “the Act”. In bringing her application, the plaintiff specifically abandoned reliance upon paragraph (c) of the definition of “serious injury” – see Transcript (hereinafter referred to as “T”) 4. The injuries relied upon effectively are to the right shoulder, the right hip and to the spine, predominantly to the lower back. The transport accident upon which reliance is placed occurred on 19 November 2015. It shall hereinafter be referred as “the accident”. It was also pointed out by Mr Winneke, on behalf of the plaintiff, in opening that the injury to the right upper limb is by way of aggravation of a pre-existing injury or condition – see T5.
2It was asserted on behalf of the plaintiff that each injury individually satisfies the requirements of the definition. It was also submitted in opening by Mr Winneke that each of the physical conditions was sufficient to satisfy the requirements of the Act without there being a need to resort to psychological contributions or the type of concepts referred to in Richards v Wylie [2000] VSCA 50. In relation to the right shoulder injury, the plaintiff is right-handed.
3It was made clear by Mr Blanden on behalf of the defendant that the occurrence of the accident was not disputed. He identified the issues as being the existence of a significant past history and how that fitted in with the subsequent complaints, along with the issue of whether the plaintiff’s pain was or was not organic in nature – see T9.
4Mr C Winneke QC with Mr B House of counsel appeared on behalf of the plaintiff. Mr C Blanden QC with Ms J Clark of counsel appeared on behalf of the defendant. The plaintiff adopted the contents of her affidavit material as being true and correct and was cross-examined. The balance of the evidentiary material was documentary in nature and, ultimately, effectively was tendered by consent or without objection.
(b)The plaintiff’s background, education, and employment history prior to the accident
5The plaintiff is aged 41 years, she having been born in 1980. She is right-handed. She was educated to Year 10 level. After leaving school, she worked in cafes on a full-time basis. She was last in employment in approximately 1998. Since shortly after that, she has been what she described as a “stay at home Mum”. She has three children, these being aged 21 years, 17 years, and 8 months. All three children live at home with her.
6The plaintiff had some further post-school training, having completed a Certificate II in Community Services in approximately June 2015 and a Certificate III in Work Health and Safety in approximately November 2015. As at the date of the accident, she was in receipt of a Newstart parenting payment from Centrelink and was doing an unpaid work placement at a supermarket as part of her studies to complete a Certificate III in Community Services. She has sworn that it was her intention to finish that Certificate and start looking for employment.
(c) The plaintiff as a witness
7In his closing address, Mr Winneke submitted that the plaintiff was a believable and honest witness. He stated that it had not been suggested that she was malingering or telling untruths – see T78 and 79. Certainly, in his closing address, Mr Blanden did suggest that certain aspects of the plaintiff’s medical history as put to medical examiners were inaccurate or incomplete, but I agree that it was not suggested that she was wilfully dishonest.
8Dr Michael Epstein, consultant psychiatrist, who originally appears to have examined the plaintiff on behalf of both parties, reported on 27 February 2020. I note that he referred to the plaintiff as being a very good historian, who was able to give a good chronology and an apparently accurate account of the accident. He described her as being well orientated and very cooperative. In a report to the plaintiff’s solicitors of 9 March 2021, he repeated that she was a good historian, well orientated and very cooperative. His earlier report to both parties seems to have been in the context of assessing impairment pursuant to the Guide to the Evaluation of Psychiatric Impairment for Clinicians.
9The view which I have formed is that the plaintiff did her best to answer questions accurately and truthfully. Hers is a complicated background, both medically and in the family sense. However, essentially, I reached much the same conclusion in relation to her credit as that of Dr Epstein.
(d) The state of the plaintiff’s health prior to the accident
10The plaintiff has a complicated medical history. In 1994, she developed osteomyelitis of the forehead and was hospitalised for some three months. She suffered from ongoing occasional headaches. She has had significant dental problems. She had a history of left wrist pain, including from a fall in September 2006. She had a further accident involving her left hand in August 2009. She sustained injury to the left foot in September 2010, when she slipped on a footpath. She has subsequently had intermittent flare-ups of left ankle pain. In December 2010, she suffered left-sided neck and shoulder pain without there being any apparent incident of injury. She underwent radiological investigations in relation to the left upper limb, and ultimately an ultrasound scan indicated supraspinatus tendinopathy. She received treatment at the Northern Hospital in July 2011. At that stage there was tenderness from C4 to C7. Her presentation was consistent with left subacromial impingement and probable underlying rotator cuff tendinopathy. She underwent physiotherapy and an ultrasound-guided corticosteroid injection. Apparently x‑rays of her cervical spine and left shoulder were normal. She obtained some relief from her neck pain, but continued to have left shoulder pain.
11On 13 September 2012, the plaintiff was a passenger in a vehicle which was struck from behind. Following this, she had more left neck and shoulder pain, with dizziness. A cervical collar was used. On 17 September 2012 she saw her doctor, Dr Hormiz, with persistent pain in her neck and left shoulder and with intermittent dizziness. She had a reduced range of movement in both arms. By mid-October 2012, her shoulder pain had settled, but she continued to have some lower neck pain and infrequent dizziness. There was a further flare-up of the pain in December 2012. It would appear that she received Centrelink benefits in relation to her condition. It would also seem that she was certified as being unfit for any employment duties until February 2013, when the certification changed to that of her being fit for light duties. In March 2013 she was certified as being fit for light duties only for six months, with no over-shoulder movements or lifting of above 5 kilograms.
12In April 2013, following pelvic and abdominal pain, an ultrasound resulted in a finding of an enlarged liver and spleen and a multiseptated cystic mass on the liver. The plaintiff received ongoing treatment at the Northern Hospital gastroenterology clinic. There was then further ongoing treatment from various specialists, this resulting in January 2014 in a laparoscopic cholecystectomy and liver segmentectomy, following which she was in the intensive care unit. In 2014 she began taking medication for hypothyroidism.
13On 18 October 2014, the plaintiff was involved in a transport accident. The car which she was driving was struck from behind when stationary. Following that, she had left neck, shoulder and upper back muscle stiffness. She was diagnosed as having suffered whiplash and was certified as unfit for work. Throughout September and October 2015 she had regular appointments at the Kilmore Medical Centre. She had ongoing complaints of left-sided neck and shoulder pain, with pins and needles in the upper and lower limbs. She had been doing voluntary work one day a week as part of her Certificate II in Community Health Services. In November 2015 she had a CT scan of her cervical spine. This revealed no particular abnormality. That CT scan was only three days before the accident.
14I have gone into the plaintiff’s complicated medical history at some length. It is set out in even greater detail in Dr Michael Epstein’s earlier report. Given that history and the fact that she had not engaged in regular or paid employment for something in the order of 17 years, I say now that I am not prepared to make any allowance for loss of employment pursuant to the decision in Richards v Wylie.
(e) The injuries and their treatment
15I shall now deal with the injuries relied upon and their treatment, before turning to a discussion of whether the statutory test has been satisfied in relation to those individual injuries.
16I accept that the accident was a quite substantial and frightening one. Without going into it in great detail, it would appear that the plaintiff’s vehicle, which she was driving, was struck or clipped on the rear of the driver’s side by a truck. The car was pushed sideways, before spinning and facing in the opposite direction, when it was struck again. I accept that the accident happened over approximately 30 metres and that the plaintiff thought that she was going to be killed. The damage to her car was extensive. Various emergency services attended the scene of the accident. The plaintiff had to be cut from the car, as the driver’s side door could not be opened. It would appear that paramedics placed a cervical collar on her, and she was taken by ambulance to the Northern Hospital. She was complaining of neck pain and burning in her right shoulder. Radiological investigations did not reveal any bleeds, fractures, or dislocations, and accordingly she was diagnosed with soft-tissue injuries. She was discharged from the hospital the following day.
17On that day, being 20 November 2015, she saw Dr Hormiz, who referred her for a CT of her brain and neck and an x‑ray of her chest and right shoulder. On her claim form of 26 November 2015, she described her injuries as being abdominal pain, hip pain, right arm injury, and whiplash.
18The Plaintiff’s Court Book contains many radiological reports. The earliest such radiological report in the Plaintiff’s Court Book is one of 30 September 2015, which pre‑dates the accident. It is a report to Dr Santokh Singh, and the conclusion of the radiologist was that there was a loss of cervical lordosis suggesting muscle spasm, but no other abnormalities. A CT of the cervical spine seems to have been carried out on 16 November 2015, three days before the accident, this apparently being organised by Dr Hormiz. It is noted that, at the time, the plaintiff was complaining of neck and right shoulder pain, with intermittent pins and needles in the right arm. The conclusion of the radiologist was that there was no disc bulge, no canal stenosis, and no bony abnormality.
19An ultrasound of the right hip and groin of 3 December 2015, apparently also performed at the request of Dr Hormiz, produced a conclusion of gluteal tendinopathy with trochanteric bursitis.
20An ultrasound of the right shoulder, apparently conducted on 2 February 2016 and again at the request of Dr Hormiz, referred to the fact that the plaintiff was complaining of shoulder pain and a burning sensation at the shoulder, a query being raised as to whether she had bursitis and a tendon injury. The conclusion of the radiologist was that there was a right supraspinatus tendinopathy and subacromial bursitis. No rotator-cuff tear was demonstrated. An earlier x‑ray of the right shoulder, which seems to have been carried out immediately after the accident, was normal.
21As stated, there has been a considerable number of radiological investigations. I shall not set them all out. An MRI of the cervical spine carried out in June 2018, when the plaintiff was complaining of neck pain with radiculopathy in the right hand, essentially produced a result of no significant abnormality or cause for the pain described. X‑rays of the shoulder performed in December 2018 were also effectively normal. In her lumbar spine, there was mild lumbar scoliosis concave to the right and a mild loss of disc height at L5‑S1. An ultrasound of the elbows performed in December 2018 was thought to be positive for olecranon bursitis, with the right worse than the left. An x‑ray of the right shoulder performed in August 2019 revealed no fracture, dislocation or degenerative changes, apart from the suspicion of a tiny spur at the tip of the coronoid process of the ulna. An x‑ray of the right elbow was essentially normal. The same could be said of an x‑ray of the right hand and wrist. An ultrasound of the right elbow did show lateral epicondylitis. An ultrasound of the right shoulder revealed some tendinosis, and the conclusion of the radiologist was that there was supraspinatus tendinopathy.
22I would say at this stage that there seems to have been no reason for the very large number of radiologists’ reports contained in the Plaintiff’s Court Book, with many of these relating to conditions in no way related to the accident. These include, for example, various reports relating to obstetrics.
23In the Plaintiff’s Court Book, there is no report from the plaintiff’s original treating general practitioner or practitioners. The nearest is a letter from one doctor to another setting out a considerable number of conclusions of radiologists, some of which have been referred to above. The plaintiff’s treating general practitioner became Dr Mazhar, and a report of that doctor of 24 February 2021 was put in evidence. I shall return to it.
24There is a letter of 28 August 2017 from the plaintiff’s treating physiotherapist, Ms Kirsten Audehm. It advises that the plaintiff was first referred for physiotherapy by Dr Vikram Singh on 15 May 2017. The plaintiff had presented with hypersensitivity and allodynia, especially to the right upper and lower limbs. She had a reduced range of shoulder elevation, limited by pain. She also had reduced hip flexion. She had had no previous issues with the right hip, but had suffered a previous whiplash injury that had caused some discomfort to the right shoulder. This had been exacerbated by the accident. Ms Audehm expressed the opinion that the plaintiff’s current pain resulted from the accident. The plaintiff had not since returned to work, and was seeing a counsellor to assist with anxiety, insomnia and mental health. Apparently the plaintiff had not received any physiotherapy services since the accident. As I interpret the situation, the plaintiff had attended with a referral letter from Dr Singh asking for assistance by way of physiotherapy, but had not received any.
25There was placed in evidence a second letter from Ms Audehm, this one being addressed to “To whom it may concern” and dated 11 January 2019. This states that Ms Audehm had been seeing the plaintiff for physiotherapy treatment and ongoing issues relating to chronic pain sensitivity, particularly in the right shoulder, low back and right leg. These complaints impacted upon her mobility and were likely to be the result of her accident. There was a risk of chronic regional pain syndrome. There had been a trial of hydrotherapy and supervised light resistance exercises. Sessions of physiotherapy had been extended out to being on a fortnightly basis. There had been a break when the plaintiff was unwell. She was also receiving regular input from her general practitioner and from a counsellor. I also note a physiotherapy report of 5 July 2019, this referring to the fact that the plaintiff was in agony and unable to move her neck and shoulders. She was also sleeping poorly secondary to pain.
26It is apparent that the plaintiff was referred by Dr Mazhar to Dr Safa Hamza, specialist in rehabilitation and pain physician, who was based with Advance Healthcare, Bundoora. Dr Hamza had seen the plaintiff on 18 November 2019. A number of issues were noted, including a whiplash-associated disorder; right-sided body pain, suggestive of central sensitisation; and right hip pain, possibly secondary to chronic trochanteric bursitis and central sensitisation. There was also reference to the plaintiff’s pregnancy, her physical deconditioning and a history of post-traumatic stress disorder, anxiety, and depression.
27To Dr Hamza, the plaintiff was complaining of constant pain across the neck, shoulders, right hip, right thigh and knee, in addition to the lower back. She also referred to such matters as cramps in the upper limb, especially around the fingers, and in her foot when the pain was severe. The pain was affecting her sleep and activities significantly. Dr Hamza referred to the plaintiff as having an antalgic gait on the right. She was significantly physically deconditioned. There was a reduced range of motion of the neck, shoulders and back due to pain. She also suffered from widespread myofascial tenderness across the neck and right side of the body, worse around the lower back and right hip region. Upper and lower limb neurological examination showed normal tone, power and reflexes, and negative slump test. She was unable to do the straight leg raising test because of back pain. The plaintiff reported altered sensation to light touch and to pin prick, which did not follow dermatomal distribution. Dr Hamza said that this was consistent with central sensitisation.
28The plan and recommendations put forward by Dr Hamza included that the plaintiff would have a full assessment from “our team”. The plaintiff was pregnant at the time, which meant that she might not be able to be engaged in an intensive pain-management program, but rather in a trial to engage her in “low stream management”. The only medication suggested was Panadol. There was a suggestion of a review in three months.
29Apparently accompanying this letter from Dr Hamza was a document headed “Multi-Disciplinary Pain Management Assessment”. This was based on an interview, questionnaire, and examinations by Dr Hamza, described as a pain physician; by Mr Matthew Richards, a pain physiotherapist; and by Mr Charles Ruddock, a clinical psychologist. This document is quite lengthy and very detailed. It includes a type of questionnaire and provisional diagnoses of a Post-Traumatic Stress Disorder and an Adjustment Disorder. A pain management program for some 8-12 weeks is suggested. The date of this document is 18 November 2019. That particular program does not seem to have taken place and it may be that this was because of the plaintiff being pregnant.
30It is apparent that the plaintiff commenced a pain management program with Advance Healthcare in early February 2020. She attended the first three sessions, and then cancelled subsequent appointments. She indicated that she had a lot of appointments to attend, was not able to afford to travel to them all, and did not wish to proceed with the pain management program at this time. It would not appear that she has returned subsequently.
31The plaintiff’s treating general practitioner since 1 December 2018 has been Dr Mahjabeen Mazhar. He reported to the plaintiff’s solicitors on 24 February 2021. His diagnosis of the injuries that the plaintiff suffered in the accident included right shoulder bursitis; in the lumbar spine, L4-S1 central canal stenosis; mild scoliosis; and right hip trochanteric bursitis. His report also contains a reference to anxiety and depression. There is also reference to right hip pain and right shoulder pain, as well as to a restricted range of movements of the lower back. Treatment had consisted of analgesics, physiotherapy and psychology. She had not followed through with the pain management program.
32Dr Mazhar was still recommending that program by way of future treatment, along with specialist review, physiotherapy and hydrotherapy, and treatment by a psychologist. He considered that the plaintiff’s capacity for work was limited by pain and movements relating to the shoulder, hip and back. He noted that she had been studying just before the accident. If pain management worked well and if the symptoms improved, the plaintiff would be able to perform office work or community service work in which no heavy lifting or repeated movements was involved. Dr Mazhar found the prognosis difficult to estimate, saying that it depended upon management by the specialists.
33In evidence there is also a report from Ms Dominie Dale, registered psychologist, such report being dated 29 March 2021. Given that there is no reliance upon paragraph (c) of the definition, this report is of limited utility. I also refer to my earlier observation concerning Richards v Wylie. The report does refer to the plaintiff’s inability to get to sleep easily, but this is included in a list of symptoms which appear to be related to the plaintiff’s mental condition. There is a reference to a range of chronic pain symptoms experienced every day. Whilst this report is dated 29 March 2021, it is apparent that the plaintiff’s last consultation with Ms Dale was on 23 November 2017. She considered that the plaintiff was unlikely to make a good recovery from Post-Traumatic Stress Disorder if the chronic pain from the injuries sustained in the accident did not resolve. There was also the need for further counselling.
34At the request of her solicitors, the plaintiff has also been examined for medico-legal purposes. Dr Richard Sullivan, anaesthetist and pain specialist, saw the plaintiff on 24 October 2019. The purpose of this examination seems to have been the provision of a medico-legal report to Ms Rebecca Cook, who is associated with the Lump Sum Compensation section of the defendant. The plaintiff reported that her worst pain was in her neck, and predominantly on the right side extending down into the posterior and anterior aspects of the right shoulder. There was also some pain extending into the right arm and hand. She also referred to pain in her right hip and knee. She described various limitations upon her activities and tolerances, such as a walking tolerance of 45 minutes. The plaintiff noticed an aggravation of pain when trying to undertake the more vigorous activities of daily living.
35Dr Sullivan referred to the plaintiff as having chronic pain in the context of a motor vehicle accident. She was unlikely to require surgery in the foreseeable future. He considered that her chronic pain condition was post-traumatic in nature and amplified by the organic pathophysiological process of central sensitisation. He summarised the working diagnosis as being that of a post-traumatic chronic pain condition. This presented as posterior cervical pain, lower back pain and essentially right sided upper limb and knee pain. He did not believe that she had a current work capacity. He recommended that an MRI of the central spine be performed. He thought that the plaintiff’s chronic pain condition would continue into the foreseeable future and would adversely affect her functional tolerances, along with her work capacity. Insofar as radiological findings may have indicated degenerative changes in the cervical spine, right shoulder and lower back, the accident had aggravated these and led to the onset of her chronic pain condition. He believed that proceeding with the pain management program was appropriate. The plaintiff did not have the capacity to return to the paid workforce, and Dr Sullivan expected that this situation would continue into the foreseeable future.
36Some six days later, Dr Sullivan again reported to the plaintiff’s solicitors. The report is based upon the same consultation of 24 October 2019. As would be expected, the history and background details are much the same as those set out above. In this report, Dr Sullivan stated that the plaintiff had radiological evidence of pathology in the right shoulder girdle, including subacromial bursitis. He thought that engagement in an outpatient-based pain management program would be appropriate. He did not believe that she was in a position where she could re-enter the workforce, but should be reviewed after completion of the pain management program.
37Dr Sullivan reported to the plaintiff’s solicitors again on 3 February 2021. He had seen the plaintiff on the day of his report. He referred to a number of ongoing diagnoses, including post-traumatic chronic pain condition; right trochanteric bursitis and gluteal tendinopathy; right rotator cuff tendinopathy; aggravation of lumbar spondylosis; aggravation of cervical spondylosis; and right subacromial bursitis of the right elbow. The plaintiff was taking Pregabalin twice daily, Tramadol twice daily, and Paracetamol throughout the day. Dr Sullivan reported ongoing sleep impairment because of the plaintiff’s infant child and her chronic pain condition. Overall, Dr Sullivan believed that the plaintiff’s condition was completely stable and that her pain presentation and associated limitations had not changed significantly since his previous assessment. He recommended that she complete her pain management program. He thought that she was limited in terms of her personal, domestic and recreational activities as a result of the chronic pain condition. He noted that she had been unemployed since 1998, but had suffered significant pain and functional limitations as a result of the accident. He thought that her chronic pain affecting her neck, right shoulder, right upper limb, lower back and right hip would continue into the foreseeable future and that there would be functional limitations. These would also be permanent.
38Dr Sullivan reported to the plaintiff’s solicitors again on 31 August 2021. He had not seen the plaintiff again, but had been asked to review documentation, including a report from Dr Robert Lefkovits of 7 June 2021. He repeated his previous diagnosis of aggravation of cervical spondylosis, lumbar spondylosis, intrinsic shoulder pathology and of chronic soft tissue affecting the right hip. Dr Sullivan specifically challenged the apparent opinion of Dr Lefkovits to the effect that central sensitisation is a non-organic condition. Dr Sullivan considered this to be completely contradictory to basic science and clinical research in the last 20 years. The symptomatology considered by Dr Lefkovits had basically concerned mild cervical and lumbar degenerative disease without radiculopathy and the aggravation of trochanteric bursitis of the right hip, along with the aggravation of the soft tissue of the right shoulder. Dr Sullivan agreed with Dr Lefkovits concerning the presence of central sensitisation, but disagreed with the proposition that it did not have a clear organic basis. He also agreed with the proposition that the chronic pain condition would preclude the plaintiff from returning to meaningful paid employment now and into the foreseeable future, and that it would continue to affect her everyday life.
39What is described as a Joint Independent Medico-Legal Report dated 23 January 2020, the plaintiff having been examined on 7 January, has been prepared by Dr Graeme Doig, who specialises in general orthopaedics and trauma. The report has been provided to both parties. To Dr Doig, the plaintiff described her principal injuries as being to the right shoulder, neck, lower back, right hip and buttock regions. She denied any previous problems or injuries to those areas. She complained of constant pain in the neck, with radiation into the right shoulder and intermittently down the arm. There was also constant lower back pain, worse with activity, and with radiation to the right buttock.
40Dr Doig does not appear to have had access to radiological investigations, although there is reference to some conclusions in this regard. At the time of his examination, the plaintiff was five months pregnant, thus limiting her intake of medications. Dr Doig believed that future treatment recommendations would involve the use of simple analgesics and a self-managed exercise program. He placed various restrictions upon her levels of activity, including limited bending and twisting through the spine, lifting of over 10 kilograms, and the avoidance of heavy lifting and repetitive use of the dominant right arm, particularly overhead. The plaintiff would also require breaks from long sitting and driving. Within those restrictions, she had the capacity for employment. He thought that her musculoskeletal injuries were unlikely to improve with time and had the potential to deteriorate with age. He considered the prognosis to be guarded.
41For the purposes of the AMA Guide to the Evaluation of Permanent Impairment, Dr Doig considered that the plaintiff’s conditions had reached maximum medical improvement. He made some impairment assessments accordingly. He again referred to the plaintiff’s prognosis as being guarded, mentioning her failure to improve over the preceding four years. He considered that all her impairments related to the accident. Dr Doig considered that the plaintiff had suffered soft tissue injuries to the areas in question. He also observed that there was early degeneration in the neck and lower back regions visible on plain x-rays, stating that such degeneration may have been aggravated by the collision. In short, he thought that in the future the plaintiff would require light, sedentary work, with the previously mentioned restrictions in place.
42Mr David Slattery, orthopaedic surgeon, reported to the plaintiff’s solicitors on 20 April 2021. This examination was conducted by the use of telehealth due to the COVID-19 restrictions. Mr Slattery took a detailed history of the plaintiff’s treatment since the accident. He also recorded that she was not undergoing active treatment at the time that he saw her. However, he noted that she was due to recommence pain management therapy. He recorded that the plaintiff struggled to sleep due to hip pain. She referred to limping constantly and with the hip clicking and catching at times. She also reported neck pain which was 6/10 out of severity, and mild numbness of the right shoulder. She had low back pain that radiated up the spine centrally and was aggravated by various activities, such as bending, twisting and the like. That pain could wake her at night. She had intermittent right foot pins and needles. She described restrictions which she had in relation to household activities, and particularly in relation to mopping, cleaning the bathroom and the like.
43The diagnosis of Mr Slattery was of multilevel lumbosacral spine degeneration, with mild central canal stenosis at L4-5 and L5-S1. He also diagnosed a soft tissue injury to the cervical spine; right shoulder bursitis and rotator cuff tendinopathy; right gluteal tendinopathy and trochanteric bursitis; and chronic pain. He described the plaintiff as having ongoing recalcitrant symptoms which affected her activities of daily living. Mr Slattery considered the prognosis to be poor, due to the chronicity of the symptoms, the refractory nature of her pain to the injections and analgesia, and to her chronic pain syndrome. He thought that it was likely that she would have ongoing symptoms related to the trochanteric bursitis and rotator cuff tendinopathy for the foreseeable future. He also thought that she was a poor prospect for obtaining meaningful employment. He referred to the fact that the plaintiff had suffered an aggravation of pre-existing, underlying degenerative changes in her lumbar spine, along with right sided subacromial bursitis and right trochanteric bursitis, such aggravated conditions being demonstrated on the ultrasound scans. Bearing in mind the scans and radiology, he considered that there was an organic basis for her right sided upper body symptoms and for her low back pain. He considered that she had no meaningful capacity for employment. He described the prognosis as being poor.
44Dr Michael Epstein, consultant psychiatrist, reported to both parties. Whilst he has provided very thorough reports, the importance of these has been reduced by the abandonment of reliance upon paragraph (c) of the definition. Dr Epstein first reported on 27 February 2020. He took a detailed history, including references to the motor vehicle accident in September 2012, following which the plaintiff had left neck and shoulder pain and dizziness. This apparently followed earlier left sided neck and shoulder problems resulting from a fall on a footpath in September 2010. Dr Epstein also took a history of the occasion in October 2014 when the plaintiff was a front seat passenger in a vehicle which was struck from behind and following which she was diagnosed with whiplash.
45In relation to the consequences of the accident under consideration, the plaintiff described to Dr Epstein nightmares that she had on a regular basis and in which she relived the accident. She complained of a constant ache in the neck and right shoulder, along with reduced movements of the neck. She said that she rarely had headaches and had no left shoulder pain. However, she had constant right hip pain, worse with walking for more than 15-20 minutes, in addition to the constant aching in the neck and right shoulder. Dr Epstein considered that the plaintiff had developed a mild Post-Traumatic Stress Disorder and a mild chronic Adjustment Disorder with depressed mood. Whilst Dr Epstein was prepared to make an estimate of her level of impairment, he considered the plaintiff’s prognosis in relation to the area of medicine in which he is an expert as being uncertain.
46Dr Epstein reported to the plaintiff’s solicitors on 9 March 2021, having interviewed the plaintiff remotely via Zoom. Again, a detailed history of the plaintiff’s background and health, along with the accident and its consequences, can be found. There is a reference to monthly nightmares and to constant aching in the neck and right shoulder. There is also reference to pain in the mid part of the lower back, which spread to the right side. Dr Epstein stated that it would appear that the accident had been the major factor leading to her current mental health problems. He did not believe that her current work capacity was limited by her mental state, also observing that the plaintiff did not need any psychiatric or psychological treatment “at the moment”. The prognosis, in relation to her mental state, was that it was unlikely to change.
47The defendant has had the plaintiff examined for medico-legal purposes. Mr Gary Speck, orthopaedic surgeon, examined the plaintiff at the request of the defendant on 20 July 2021, reporting on 2 August. He had been provided with voluminous material in relation to the plaintiff’s medical condition prior to the accident. To Mr Speck, the plaintiff described her principal areas of pain as being around the neck and right shoulder, extending into the right arm, and around the area of right buttock and low back. She described a variety of activities which would cause an increase in the low back pain and pain into the leg. She described the back pain as varying from 5/10 to 10/10. The medication that she was taking was Pregabalin, 25 milligrams twice a day and, on most days, Nurofen three times a day.
48Mr Speck carried out an extensive range of testing. He also referred to the considerable radiological investigations, in addition to medical certificates and the like. He made reference to correspondence and reports in relation to her pre-accident medical conditions. The radiological reports included that of the CT of the cervical spine performed on 16 November 2015, three days prior to the accident. This related to neck pain and bilateral shoulder pain dating back to the accident in September 2012.
49Mr Speck’s conclusion was that the plaintiff may have sustained soft tissue injuries to the right hip region and neck, and right shoulder, in the relevant accident. He thought that her presentation was not consistent with a specific underlying structural pathology, but rather one of chronic pain syndrome, which had previously existed and was consistent with her doctor’s records immediately prior to the accident under consideration. However, he thought that there was no evidence of discoligamentous or vertebral injury, or of musculotendinous disruption. He referred to the imaging reports with which he had been presented. He was of the view that the plaintiff had pre-existing symptoms indicative of chronic pain syndrome, and that this continued after the accident.
50In answer to a query as to whether any of the diagnosed injuries or conditions had been aggravated by the accident, Mr Speck commented that such mental health issues should be assessed by an appropriate expert in the context of a somatic symptom disorder. A soft tissue injury sustained at the time of the accident would have resolved within 6-12 weeks of it. There had been no aggravation of physical injuries or conditions. He thought that there was no identifiable specific pathology to explain the plaintiff’s widespread pain on an organic basis, also referring to the fact that her range of movement of the neck was normal when she was distracted. He again stated that appropriate expert advice should be sought as to whether there was a relationship between the accident and her current condition.
51Mr Speck stated that the prognosis for soft tissue injuries to the neck, right hip, shoulder and abdomen arising from the transport accident was excellent, with expectation of settling of symptoms within 6-12 weeks from the time of the accident. He noted that, in the month prior to the accident, the plaintiff had been certified as unfit for employment for three months by her local doctor, this being due to symptoms very similar to those of which she currently complained.
52Mr Speck reported to the defendant again on 30 August 2021. The purpose of this report was to review some further material. He did not see the plaintiff again. He referred to the diagnosis provided by Mr Slattery as being descriptive of radiological findings, rather than being a clinical diagnosis. He noted that Mr Slattery seemed to have recorded normal strength in testing of upper and lower extremities.
53Mr Speck also had some criticism of the reports of Dr Sullivan, particularly in relation to such matters as the absence of comment concerning the fact that the plaintiff’s local doctor had a history of neck and shoulder symptoms immediately prior to the accident. This included imaging of the cervical spine undertaken three days prior to the accident. Further, there had been a long history of attendances for chronic pain symptoms. Mr Speck also pointed out that the diagnosis of Dr Doig was one of soft tissue injuries. Nothing in the various reports provided to Mr Speck caused him to change the opinions which he had previously expressed.
54Also put before me by the defendant were three reports from Dr Ian Stone who, at the relevant time, was based at the Northern Hospital. These reports are addressed to Dr Hormiz at the Kilmore Medical Centre and are dated 10 August 2011, 20 September 2011 and 20 December 2011. The relevance of these would seem to relate to symptoms experienced by the plaintiff at that time. The history recorded in the initial report is to the effect that the plaintiff presented with a sudden onset of left neck and shoulder pain in December 2010, there being no preceding history of injury or trauma. The pain was aggravated by overhead activities, lying on the left shoulder and the like.
55Dr Stone noted that the plaintiff had had a previous ultrasound scan indicating the presence of rotator cuff tendinitis. When she presented to Dr Stone, which seems to have been in July 2011, her presentation was most consistent with a left subacromial impingement, with some probable underlying rotator cuff tendinopathy. There may have also been some underlying cervical spondylosis as a cause of the neck symptoms. Radiology in the form of x-rays was to be performed and Dr Stone recommended the commencement of a course of physiotherapy and strengthening exercises. There was also reference to the performance of a corticosteroid injection into the left subacromial space.
56The second report of Dr Stone of 20 September 2011 followed an injection. The plain x-ray of the cervical spine and left shoulder was reported as being normal. Since the injection, the plaintiff had obtained symptomatic relief of the left neck pain, but still had left shoulder pain, particularly in relation to most shoulder movements. She had not yet commenced a course of physiotherapy. She was to be reviewed in three months and, if symptoms persisted, the option of a second corticosteroid injection was to be considered. It was hoped that physiotherapy would alleviate the plaintiff’s current left shoulder symptoms.
57The third report of Dr Stone followed a review on 5 December 2011. The plaintiff’s left shoulder symptoms had settled with rest and with the avoidance of long distance driving and most household duties. On assessment, she had a full active and passive range of movement of both the cervical spine and of the left shoulder, although pain was elicited on active abduction over 90 degrees and forward flexion over 120 degrees. The rotator cuff power was intact. Dr Stone thought that the plaintiff’s symptoms had stabilised, but emphasised the need for a course of physiotherapy focussed mainly on massage to the neck and scapula and for rotator cuff strengthening exercises for her left shoulder.
58There seems to me to be a limit to the use that can be made of the three reports of Dr Stone. Certainly there was some attention to the cervical spine, but the focus otherwise was upon the left shoulder, as opposed to the emphasis on the right shoulder in the symptomatology following the accident.
59Dr Robert Lefkovits, consultant physician, saw the plaintiff at the request of the defendant on 7 June 2021, reporting on that day. Whilst the report is addressed to the defendant, it is to be found in the Plaintiff’s Court Book. The history taken by Dr Lefkovits included that, following the accident, the plaintiff suffered significant pain in the neck, right shoulder and, increasingly, in the low back and right hip region. He described some of the treatment which she had undergone and the fact that she had developed lowered mood, anxiety, and sleep disturbance. Included in the description of her current symptoms was that she had ongoing back pain and stiffness and pain in the lateral aspect of the right hip, aggravated by prolonged standing and prolonged sitting. Her physical examination revealed that she had a slight limp favouring the right lower limb. However, Dr Lefkovits described this as an inconsistent finding. Upon examination, the plaintiff had reduced active movement of the right hip but, with distraction, seemed to be able to cope with a full range of passive movements without discomfort. Dr Lefkovits was aware that an ultrasound of the right hip confirmed a gluteus minimus deep surface tear with some thickening of the trochanteric bursa, consistent with trochanteric bursitis.
60Dr Lefkovits expressed the view that the predominant consequence of the accident had been the development of central sensitisation syndrome/chronic pain syndrome. There was also some aggravation of pre-existing conditions, including aggravation of trochanteric bursitis of the right hip. He also thought that there were significant non-organic issues. He observed that it was possible that the plaintiff’s longstanding issues had suffered aggravation, but he did not include any discussion of the right hip in this regard. He thought that the predominant cause of her ongoing symptoms and incapacity was the central sensitisation syndrome and non-organic issues. He also made no specific reference to the hip injury in this regard.
61Dr Lefkovits provided a supplementary report of 12 August 2021. It is apparent that he did not examine the plaintiff again, but had been provided with a range of medical reports. He believed that these confirmed that the predominant ongoing issue was a central sensitisation syndrome or chronic pain syndrome. He believed that the pain syndrome should be managed by a multidisciplinary team, rather than attempting to resolve individual symptoms “of a musculoligamentous nature”.
62Thus, apart from what appears to read as an acceptance of some organic causation of the right hip injury, there is not a great deal in the reports of Dr Lefkovits in relation to that specific area of complaint.
63That concludes my summary of the medical evidence. I turn now to the diagnoses of the injuries and to other factors relating to whether the statutory test has been satisfied and which require consideration.
64In his opening, Mr Winneke stated that the injuries upon which reliance was placed were to the right shoulder, the right hip and lower back. There was no argument but that each of these areas of injury must be considered separately when assessing whether the burden of proof has been discharged. It is also to be remembered that reliance upon paragraph (c) of the definition was not pursued, so that injuries or symptoms of a psychological or psychiatric nature are not to be taken into account.
65In his closing address, Mr Winneke stated that the plaintiff relied heavily upon the injury to the right hip which, along with the low back injury, was “a new injury” – see T75. He conceded that the right upper limb injury posed some difficulties for the plaintiff, because she had had similar problems before the accident. The question then would be whether the aggravation sustained in the accident was productive of consequences that met the test of serious injury – see T74.
66Mr Winneke did not concede that the test was not satisfied insofar as the right shoulder was concerned, but patently was aware of some difficulties in that regard. Certainly, I am of the view that some problems are posed, and it is to be remembered that the plaintiff was receiving medical attention for the right shoulder only three days before the accident. I say now that I also see some problems in relation to the injury to the lower back. In setting out my discussion and conclusions as to the injuries suffered, I shall deal in sequence with each of the three emphasised by Mr Winneke in his opening – right hip, right shoulder, and lower back.
(i) The injury to the right hip
67I shall deal firstly with the injury to the right hip.
68Dr Hamza, from Advance Healthcare, and who treated the plaintiff, originally described her as having right hip pain, possibly secondary to chronic trochanteric bursitis and central sensitisation. The plaintiff was complaining of constant pain in the right hip, as well as in other regions. The right hip ultrasound of 3 December 2015 revealed the presence of trochanteric bursitis, which I understand to be inflammation of the bursa which can be caused by an acute injury.
69I note that Mr David Slattery, orthopaedic surgeon, diagnosed right trochanteric bursitis aggravated by the accident. He pointed out that this condition had been demonstrated on ultrasound scans, and he believed that there was an organic cause for the plaintiff’s complaints. Further, he stated that her condition had been aggravated by the accident (although it seems to have been asymptomatic prior to it).
70Trochanteric bursitis was also the diagnosis arrived at by Dr Sullivan. I note that, as early as 7 December 2015, the clinical notes of Dr Hormiz described the reason for patient contact as being “right bursitis – trochanteric”. In summary, it is a diagnosis which I accept.
71Whilst the plaintiff suffered from a considerable range of symptoms, restrictions, illnesses and injuries prior to the accident, I accept that these, essentially, did not include symptoms emanating from the right hip region. If what occurred was the aggravation of trochanteric bursitis, there seems to be little or no record of such being symptomatic prior to the accident.
72I am also satisfied that the consequences of the right hip injury are permanent within the meaning of the Act, in that they will persist for the foreseeable future. Dr Sullivan stated that it was his expectation that the radiological findings would stay relatively stable, but that the plaintiff’s pain condition was likely to continue into the foreseeable future. Dr Doig stated that the overall prognosis of the plaintiff must be guarded although, due to her pregnancy, his ability to examine the right hip was quite limited. He pointed out that there had been no improvement in her condition over the preceding four years. Mr Slattery commented that the plaintiff was likely to have ongoing symptoms of trochanteric bursitis for the foreseeable future. I accept these opinions and prefer them to that of Mr Speck, examining on behalf of the defendant.
73Mr Speck was of the opinion that the plaintiff suffered from chronic pain syndrome, a view also shared by Dr Sullivan, but, unlike Dr Sullivan, it is apparent that he considered this to be a mental health issue, stating that the issue of whether any aggravation had occurred by reason of the accident was a proposition that should be assessed by an appropriate expert in the context of a somatic symptom disorder. Thus, he effectively divided the injuries and their consequences into soft tissue injuries and mental health issues. As stated, I accept and prefer the views set out above to the effect that the plaintiff suffered an organic and diagnosable hip injury, which is continuing and which will continue for the foreseeable future.
74Given the above and given that consequences of a psychological or psychiatric nature are not to be taken into account, it is probably appropriate that I expand briefly upon the issue of whether conditions such as central sensitisation syndrome and chronic pain syndrome are to be treated as physical injuries, and hence within paragraph (a) of the definition, or are injuries of a psychological or psychiatric nature, and hence within paragraph (c) of the definition and should be excluded from consideration. I emphasise now that this is not intended to be some sort of definitive finding following a “test case”. I have considered this issue solely for the purposes of whether, on the available evidence, such a condition should have been included or excluded as a matter for consideration in the present case and, more particularly, in relation to the plaintiff’s right hip injury.
75I am of the opinion that, on the basis of the evidence presented in this case, the plaintiff does suffer from a chronic pain condition and that such condition has an organic basis. I accept that the plaintiff has a physical injury, namely trochanteric bursitis. I am also satisfied that, associated with this, a chronic pain condition has developed. Dr Sullivan has described it as the organic process of a central sensitisation. He found, and set out, “clinical evidence on examination of the organic process of central sensitisation”. In particular, he set out his physical or organic findings in his report of 31 August 2021.
76Dr Sullivan stated that the proposition that central sensitisation and nociplastic change were non-organic would be completely contradictory to the last two decades of basic science and clinical research in the science of pain and pain medicine. He asserted that contemporary understanding of this condition and countless research articles of consensus expert opinion confirm that it has a wholly organic basis.
77Further, I note that Mr David Slattery, orthopaedic surgeon, when specifically asked by the plaintiff’s solicitors as to whether the injuries suffered by the plaintiff have an organic basis, listed such injuries, including right sided subacromial bursitis and right trochanteric bursitis, and specifically stated his belief that there was an organic cause for the complaints. I note that the finding of the radiologist in relation to an ultrasound in December 2015 was that the plaintiff had gluteal tendinopathy with trochanteric bursitis. The comment of the radiologist following the ultrasound of the right hip on 3 July 2018 was that there was thickening of the trochanteric bursa with tenderness to probe pressure, in keeping with trochanteric bursitis.
78I prefer and accept the evidence on behalf of the plaintiff. I note that, in his earlier report of 2 August 2021, Mr Speck made the comment that, given the presence of chronic pain syndrome, any aggravation by the transport accident “along with other mental health issues should be assessed by an appropriate expert in the context of a somatic symptom disorder”. Later in the same report, he again stated that appropriate expert advice in relation to the plaintiff’s somatic symptom disorder/chronic pain syndrome should be sought. However, he also stated that the resolved soft tissue injuries from the accident would have ceased within three months of it.
79In his supplementary report of 30 August 2021, Mr Speck agreed with the diagnosis of Dr Sullivan of a post-traumatic chronic condition presenting as chronic pain, affecting, inter alia, the plaintiff’s right hip. Mr Speck stated that, whilst Dr Sullivan described a number of diagnoses, he did not specifically ascribe them to the accident. That does not strike me as being an entirely accurate observation. I would point out the following.
80In his report of 18 November 2019, Dr Sullivan referred to the plaintiff as having a range of potential anatomical pain generators, including right trochanteric bursa, and that, if such condition existed prior to the motor vehicle accident, it was “indolent” and likely to have been aggravated in the context of the accident. In his report of 24 October 2019, Dr Sullivan referred to the plaintiff’s injuries, including right trochanteric bursa, stating that the plaintiff’s chronic pain condition was post-traumatic in nature. In his diagnosis of the injuries suffered by the plaintiff, Dr Sullivan made the observation that the plaintiff had “aggravation of pre-existing condition as a consequence of the motor vehicle accident resulting in a post-traumatic chronic pain condition”. In his report of 3 February 2021, he referred to an ongoing diagnosis of “Posttraumatic chronic pain condition presenting as chronic pain affecting … her right hip …”. There is no suggestion that the trauma referred to is anything other than the accident. Indeed, when discussing the plaintiff’s current capacity for employment, Dr Sullivan referred to “significant functional limitations relating to her chronic pain (as a result of her road traffic accident)”. In his further report of 31 August 2021, he again referred to a diagnosis of “Posttraumatic chronic pain affecting her right hip”. The end result is that I am left in no doubt but that Dr Sullivan was attributing the plaintiff’s right hip injury and its consequences to the accident.
81In summary, on the basis of the evidence presented in this case, I prefer and accept the opinions of Dr Sullivan in relation to the plaintiff’s chronic pain condition, its organic nature, its relationship to the accident and generally. In particular, I accept his opinion in relation to the plaintiff’s right hip injury and condition.
82When the above is combined with the diagnosis of Dr Slattery, and bearing in mind the treatment which the plaintiff has undergone, I am of the view that the injury to the plaintiff’s right hip is organic and the consequences which flow from it have an organic base. In addition, I do not accept that the hip injury suffered by the plaintiff is something of a recent invention. In particular, I would refer to the evidence elicited in re-examination.
83Of course, any consequences of a psychological or psychiatric nature shall not be taken into account. The only material put before me from a psychiatrist is the opinion of Dr Epstein. His view was that the plaintiff had developed a mild Post-Traumatic Stress Disorder. In his more recent report of 9 March 2021, Dr Epstein referred to the plaintiff’s mild Post-Traumatic Stress Disorder as improving. He made a similar observation about her mild chronic Adjustment Disorder with depressed mood . He thought that her mental condition was now stable. As stated, the consequences of a psychological or psychiatric nature shall not be taken into account but, in any event, I note the observations of Dr Epstein to the effect that the plaintiff’s mental health condition is of a mild nature and is improving.
84In summary, I find that the plaintiff has suffered an organic injury to the right hip. I accept the diagnosis of Mr Slattery. It would not appear to me to be an aggravation of a pre‑existing injury and certainly not an aggravation of one which had been previously symptomatic. I am satisfied that its consequences shall be permanent within the meaning of the definition. Consequences of a psychological or psychiatric nature shall not be taken into account, but, in any event, the only expert evidence from a psychiatrist would indicate that these are mild.
(ii) Other developments since the accident and particularly in relation to the right hip injury
85The plaintiff has had considerable treatment since the accident. In May 2020, she gave birth to her third child. Since the accident, she has completed a Certificate III in Community Health Services. She has not engaged in any employment. In her affidavit of 10 March 2021, she has sworn that, as a result of the pain and limitation principally in her right hip, her day to day incidental exercise has reduced considerably. She has also sworn that she no longer performs various household chores and now cannot bend forward without suffering from severe pain throughout her right hip and her lower back. In addition, each time she tries to pick up her youngest daughter, she feels pain shooting through the right hip.
(iii) Ruling in relation to the plaintiff’s right hip injury
86I am satisfied that the plaintiff has discharged the burden of proof in relation to the consequences emanating from her injury to the right hip. I would point to the following consequences, which are not set out in order of severity or importance. In so doing, I would repeat that I find the plaintiff to be a witness of truth and I accept her evidence.
(a) Constant pain has long been an important factor in considering whether the burden of proof has been discharged in relation to pain and suffering. The plaintiff suffers from virtually constant pain in the right hip. In her affidavit of 10 March 2021, the plaintiff stated as follows:
“Following the accident, I have endured constant and unrelenting pain in my right hip”.
She also affirmed that even the act of standing at the kitchen bench causes her pain in the right hip. She further stated that she cannot bend forward without suffering from severe pain through her right hip and the lower back, although she also said that the pain in the back was not as frequent as the pain in the right hip. I accept that these are accurate statements.
(b) I note in the detailed history taken by Dr Epstein that there is specific reference to an increase in right hip pain in October 2017, prompting further radiological investigations. The plaintiff referred to constant right hip pain, worse with walking for more than 15-20 minutes. She also referred to difficulty standing after kneeling or squatting. It is to be remembered that Dr Epstein was impressed by the plaintiff as a witness. He took a history of the right hip pain developing after the accident. He noted that the plaintiff, as at the date of his report in March 2021, still had constant right hip pain, worse with walking for more than 15-20 minutes. I accept this as being accurate.
(c) Also placed in evidence was the affidavit of the plaintiff’s son, Mr Cory Daniel Brown-Couldwell. He was not required for cross-examination. In his affidavit dated 27 August 2021, Mr Brown-Couldwell stated that he noticed that his mother now walks with a constant limp of the right leg. He also referred to the difficulty that she has walking up stairs and to the fact that she struggles to lift her right leg when walking. I accept this unchallenged evidence.
(d) The pain in the plaintiff’s right hip interferes with her sleeping. In her affidavit of 10 March 2021, she has stated that the pain from which she suffers in her right hip has impacted significantly upon her ability to get to sleep and to stay asleep. She estimated that it takes her two hours to get to sleep and that she is often woken by pain. It is clear that the pain to which she is referring is right hip pain. Interference with sleep is a factor to which importance has been attached over the years.
(e) I note that to Dr Slattery, reporting on 20 April 2021, the plaintiff complained of right hip pain worse with bending down and walking. She stated that the pain kept her awake at night and she struggled to sleep due to it. She also limped and the hip clicks and catches at times. It is to be remembered that Mr Slattery was also impressed by the plaintiff’s presentation.
(f) I accept that the plaintiff’s right hip pain impacts upon and interferes with many aspects of her daily activities. She has problems in relation to her right hip with trips to the supermarket and with shopping. Due to the severe right hip pain which she has described in her affidavit, she has problems with household chores and with any physical activity that requires bending or stretching. As stated, every time she tries to pick up her youngest daughter, she feels pain shooting through the right hip. She has difficulty getting down on the floor to play with the child. Even the act of standing at the kitchen bench causes pain in the right hip and sometimes in the lower back. She has to get assistance from her older children in relation to household chores. Her standing tolerance is limited. As a result of her pain and limitation, principally in her right hip, her day-to-day incidental exercise has reduced considerably.
(g) In summary, I am satisfied that, because of the accident, and particularly to the injury to the right hip and the resultant trochanteric bursitis, the plaintiff suffers constant pain which interferes with many aspects of her daily life and with her sleep.
87Thus, I find that the plaintiff has discharged the burden of proof in relation to her pain and suffering emanating from the injury to her right hip, and thus to her right lower limb. As earlier indicated, I am not satisfied that any allowance should be made in regard to loss of earning capacity.
(iv) Injury to the right upper limb and to the spine
88Given my findings in relation to the right lower limb, it is unnecessary for me to make any finding in relation to the right upper limb. Suffice to say that the situation in relation to the plaintiff’s right upper limb is more complicated. Only a matter of a few days prior to the accident, she was receiving medical attention in relation to the right shoulder. The situation generally with the right upper limb is not one of a “new” injury, as is the situation with the right hip and lower limb. Mr Winneke, in his closing address, stated that the right upper limb “poses difficulties for the plaintiff”, given the prior history of complaints and symptoms. I would agree entirely.
89It also seems to me that reliance upon injury to the spine is not without its complications. The issue of the plaintiff’s prior complaints and injuries is again present. There are also problems associated with the disentangling and clear identification of consequences.
Conclusion
90In any event, the injury to the right hip is a “new” injury for which a specific diagnosis has been made and which has resulted in identifiable consequences which, in my opinion, are more than significant or marked and are at least very considerable.
91The plaintiff is successful. She has discharged the burden of proof in relation to her injury to the right hip and lower limb. Leave is granted to her institute proceedings for pain and suffering damages.
92I shall hear the parties as to any further orders that are required.
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