Davis v Transport Accident Commission
[2023] VCC 1180
•13 July 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-22-01546
| CRAIG DAVIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE ENGLISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 & 19 June 2023 | |
DATE OF JUDGMENT: | 13 July 2023 | |
CASE MAY BE CITED AS: | Davis v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1180 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – serious long-term impairment or loss of a body function – function of the left shoulder – pain and suffering – credit – causation - range
Legislation Cited: Transport Accident Act 1986, s93(4)(d), s19(17)(a)
Cases Cited: Humphries and Anor v Poljak [1992] 2 VR 129; Taylor v Transport Accident Commission [2022] VSCA 269; Mobilio v Balliotis & Ors [1998] 3 VR 833; Rowe v Transport Accident Commission [2017] VSCA 377; Philippiadis v Transport Accident Commission [2016] VSCA 1; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Sutton v Laminex Group Pty Limited [2011] VSCA 52
Judgment: Leave is granted to the plaintiff to bring common law proceedings for damages in relation to the transport accident on 16 January 2018.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Czarnota with Mr B House | Henry Carus + Associates |
| For the Defendant | Mr C Harrison KC with Ms J Clark | Russell Kennedy Lawyers |
HER HONOUR:
Introduction
1This is an application for leave to bring proceedings for the recovery of damages pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) by the plaintiff, Craig Davis, in respect of injuries to the left shoulder sustained in a transport accident on 16 January 2018.
2The plaintiff claims he has a “serious injury” as defined by s93(17)(a) of the Act; namely, a serious long-term impairment or loss of a body function, being the function of the left shoulder and makes a claim for pain and suffering.[1]
[1] The plaintiff abandoned the application under sub-paragraph (c) after opening address.
3In the transport accident, the plaintiff was riding his bike when he was hit by a car, and he injured his left shoulder. He has had two ultrasound guided injections and acromioclavicular joint resection surgery. He still suffers from pain and has restricted overhead movement and the pain affects his sleep at night. Further, prior to the injury he was a keen cyclist and is no longer able to pursue that activity.
4The defendant disputed the cause of the plaintiff’s injury and substantially attacked the plaintiff’s credit. Further, the defendant submitted the plaintiff’s injury did not satisfy the serious injury threshold.
5The onus of proof is on the plaintiff. The test is, can the injury, when judged by comparison with other cases in the range of possible impairments and losses, be fairly described as “at least ‘very considerable” and certainly “more than significant or marked”?[2]
[2] Humphries and Anor v Poljak [1992] 2 VR 129 at 140
6The plaintiff gave evidence and was cross-examined. He provided three affidavits in support of his application, sworn on 25 November 2019 (first affidavit), 29 September 2022 (second affidavit), and 15 June 2023 (third affidavit).
7Although this judgment refers to the plaintiff’s treatment for gender transitioning, in his third affidavit the plaintiff specified he identifies as male.
Background
8This background information is derived from the plaintiff’s affidavits. In his first affidavit, the plaintiff detailed that he finished year 12 then started a nursing degree which he did not complete but worked variously as a nurse for four years and then worked with the Australian Federal Police for five years. He worked as an investigator with the Department of Health and Ageing in Brisbane. In June 2013, he moved to Melbourne and obtained a position at the Independent Broad Based Anti-Corruption Commission (“IBAC”).[3]
[3]Plaintiff’s Court Book (“PCB”) 4-5
9He has two adult children from his first marriage and is now married to Melissa and they have an 18-month year old child.
10On 16 January 2018 at 6.45am, the plaintiff was riding his bike through a roundabout at the intersection of Somerton and Oaklands roads when a vehicle to his left failed to give way and collided with his left side knocking him off his bike. He felt immediate pain in his left shoulder as well as his left hip and hand and was taken by the ambulance to the Royal Melbourne Hospital where he had X-rays on his left shoulder and chest.
11He had time off and returned to work on about 29 January 2018.
12In his third affidavit, he stated on 30 January 2019 his position at IBAC was terminated. This was because he had an affair with a client which prompted a complaint and an internal investigation.[4]
[4]PCB 130
13In his first affidavit, he stated in March 2019 he commenced work at Jetstar Airways as part of the cabin crew where he worked until August 2019.
14Since 16 September 2019, he has been employed as a dispute resolution manager at Pet Plan, a pet insurance company.[5]
[5]PCB 5
Causation
15The defendant admitted the collision occurred and that the Transport Accident Commission paid for the plaintiff’s surgery.
Defendant’s submissions
16The defendant challenged causation, relying on the plaintiff’s treating surgeon Mr Ashley Carr and the medico-legal opinion of Mr Ash Chehata, a shoulder, elbow, and wrist surgeon.
17Mr Carr, in his second report dated 29 March 2023 stated that “the cause of Craigs’ ongoing discomfort is uncertain.”[6]
[6] PCB 47
18The defendant’s counsel also relied on Mr Chehata, and read out slabs of his reports in support of his argument, as follows:
“I am yet to obtain any further information from Mr Carr about the treatment plan and whether or not the plan would be to repair the posterior labrum, or whether in fact this is an incidental finding. It is certainly unusual to have posterior labral tearing and this may in fact be a case where the posterior labral tearing is just a very early predictor of the development of early arthritic change, as often there is posterior where on the humeral head in relation to the glenoid.”[7]
[7] PCB 117
19The defendant’s counsel further relied on Mr Chehata where he stated, under Recommendations:
“Craig is likely to return to his treating surgeon for further treatment. The two options really are that of accepting the posterior labral tear being a likely constitutional and degenerative component and an incidental finding, which is often a very common situation but there is also the possibility that this is in fact the beginnings of early arthritis as a result of the transport accident. Therefore, the development of ongoing pain is likely driven by the early degenerative process.”[8]
[8] PCB 117-118
20Further, in Mr Chehata’s supplementary report dated 5 May 2023, the defendant’s counsel referred to the following:
“I advise that I have read through the Journal of applied biomechanics from 2016 and I would certainly agree that there is at least some component of effort and load that is used through the upper limb in order to cycle but again, it is very difficult to translate his underlying cause for pain with an excision of the AC joint to the current restriction. Cycling by far and away is certainly not a full weight-bearing joint exercise across the shoulder joints.
It is almost impossible from the previous reports from his treating orthopaedic surgeon, Mr Ashley Carr, that there are also unable to define exactly the cause of the ongoing pain so it is almost impossible for us to relate this back to this seeming upper limb demands.
Certainly, there is no doubt that any demands whilst seated, particularly cycling in general, would not prevent him from performing recreational cycling, although obviously high intensity and competitive cycling is a very specific exercise and may require certainly far greater biomechanics.
Seeing that he is able to perform up to 300 kilometres of cycling, you would assume that he has some form of capacity to cycle, although it is always difficult cycling competitively after an injury and this is very different to recreational cycling. However, this underlying injury is not so definable that you would assume that there would be any effect on generating crank power considering the paucity of the pathology found by Mr Ashley Carr.”[9]
[9] PCB 121-122
21Counsel for the defendant noted in terms of responding to question three, Mr Chehata stated:
“This really does not change my overall opinion from my previous reports and again, the defining cause of his pain more than anything, rather than the potential load through the shoulder, is certainly slightly unexplainable and very opaque. Rather than this being related directly to some form of mechanical effort, it may be more related to non-organic features such as chronic pain.”[10]
[10] PCB 121-122
22Counsel for the defendant also referred to Mr Michael Dooley’s report where he stated:
“Current clinical examination reveals overall good range of motion of the left shoulder joint. Following the injury that he sustained and the surgery that he has undergone, I would expect Mr Davis to continue to note some intermittent pain and to have difficulty with a lot of heavy physical activity and a lot of activity at and above shoulder level.”[11]
[11] PCB 126
23Counsel for the defendant referred to Mr Dooley’s prognosis:
“From an orthopaedic point of view only, I believe that Mr Davis will continue to note some intermittent left shoulder girdle pain. I do not believe that this orthopaedic condition will deteriorate in time.”[12]
[12] PCB 126
Plaintiff’s submissions
24With respect of causation, plaintiff’s counsel noted Mr Chehata’s report was talking about mechanical loads in response to questions about the plaintiff’s ability to cycle and whether that would be something he was prevented from doing. The plaintiff’s counsel noted Mr Chehata’s report needs to be read in that context, he was not providing an opinion on causation regarding the transport accident.[13]
[13] Transcript (“T”) 17
25Plaintiff’s counsel submitted, whilst acknowledging some difference of opinion in the medical opinions, that the plaintiff has suffered an aggravation injury of the left shoulder. He relied on Mr Chehata’s report dated 26 August 2022 where he stated, “The history is that of a cycling accident where he was struck by a car and suffered a likely aggravation of AC joint arthritis in the left shoulder that was completely asymptomatic.”[14] He also relied on Mr Dooley‘s report dated 26 September 2022 who prepared a report for the defendant, who stated, “Mr Davis sustained a soft tissue injury to his left shoulder region that most likely involved some aggravation of underlying naturally occurring degeneration involving the acromioclavicular joint.”[15] He further referred to Mr Russell Miller’s report dated 24 September 2021 and as to diagnosis and prognosis; “The operative findings included labral tear, tear of infraspinatus, chondral pathology and acromioclavicular degeneration for which he performed resection arthroplasty and rotator cuff repair…the client’s orthopaedic symptoms are satisfactorily explained by defined disease.”[16]
[14] T 97, PCB 112
[15] PCB 126
[16] PCB 83
26In terms of causation, counsel for the plaintiff referred to Taylor v Transport Accident Commission [2022] VSCA 269 where the Court of Appeal confirmed the injury only needs to have resulted from the accident in the motor vehicle accident:
“It is indisputable that in order for causation to be established it is sufficient for a plaintiff to prove that a transport accident was a cause of the relevant injuries.”[17]
[17] Taylor v Transport Accident Commission [2022] VSCA 269 at paragraph [43]
27In this case, before the accident the plaintiff was very fit and healthy, and his left shoulder was asymptomatic.
28The plaintiff’s counsel relies on Mr Dooley who stated:
“Mr Davis was involved in a motor vehicle accident in January 2018 when a car collided with his pushbike, causing him to fall to the ground. I believe that in this episode, Mr Davis sustained a soft tissue injury to his left shoulder region that most likely involved some aggravation of underlying naturally occurring degeneration involving the acromioclavicular joint.”[18]
[18] PCB 126
29Mr John O’Brien, orthopaedic surgeon, prepared a report dated 14 August 2019 which states:
“Current signs certainly suggest evidence of ongoing acromioclavicular pathology. There is no evidence of acromioclavicular joint instability, however it would appear the patient has sustained a significant strain of the joint, superimposed upon the degenerative change demonstrated on investigation. As a result of this, the patient now has chronic left acromioclavicular joint pain. Indeed the signs do not suggest any specific rotator cuff symptomatic pathology.”[19]
[19] PCB 51-52
30Mr O’Brien goes on to state, “The injury is consistent with the stated cause.”[20]
[20] PCB 52
31Further, Mr Russell Miller, orthopaedic surgeon, in his report dated 24 September 2021, noted the relationship between the accident and the left shoulder injury is a complex and multifactorial issue involving factors such as pre-existing disease, the described injury, and physical work over a protracted period of time. He also states, “The current clinical status is regarded as being substantially accident related.”[21]
[21] PCB 83
32In response to the treating surgeon, Mr Carr, expressing an inability to find some cause for the ongoing symptoms, plaintiff’s counsel explained this as a treating surgeon giving “themselves a bit of a pat on the back for a job well done”.[22] Counsel noted the independent medico-legal opinions have turned their mind to the question of medical causation, including Mr Dooley, who was engaged by the defendant, and provided evidence of causation.
[22] T 100
Analysis
33In Mr Chehata’s first report dated 26 August 2022, he states, “This history is that of a cycling accident where he was struck by a car and suffered a likely aggravation of AC joint arthritis in the left shoulder that was completely asymptomatic.”[23]
[23] PCB 112
34It is post-surgery that Mr Carr, the operating surgeon, and Mr Chehata are unsure as to the reason why the plaintiff’s pain has continued.
35I accept the plaintiff’s evidence that his pain has continued as a sequalae of the surgery.
36The plaintiff had two guided injections as well as surgery on his left shoulder AC joint following the transport accident. I am satisfied by the medico-legal opinions of Mr Miller, Mr Dooley, and Mr O’Brien that there is a causative link between the accident and the plaintiff’s current aggravated injury.
The Plaintiff’s credit
Cycling
37The defendant submitted the plaintiff’s credit was in issue. With respect to cycling, it was submitted in his second affidavit he had given the clear impression prior to the injury he was an A-grade performer and subsequent to the injury he was a C- grade performer.
38In his second affidavit the plaintiff stated he moved into A-grade level in around August 2017. The list of cycling races,[24] tendered by the defendant shows the plaintiff competed in A-grade races on 11 June 2017, 25 June 2017, 2 July 2017 and 27 August 2017, and B-grade races on 17 September 2017, 1 October 2017, 15 October 2017, 22 October 2017, 12 November 2017, 26 November 2017 and 17 December 2017 and a further A-grade race on 14 January 2018. After his injury on 16 January 2018, he competed in seven B-grade races (including the Tour de Metro race on 21 July 2019) and 31 C-grade races up until 10 July 2021.
[24] Exhibit D-A, Defendant’s Court Book (“DCB”) 8
39The list of races supports the plaintiff’s affidavit evidence he had moved into A- grade racing, whilst still competing in some B-grade races, prior to his injury, and thereafter his injury was a C-grade performer with the exception of some seven B- grade races. I am not of the view this example impugns the plaintiff’s credit.
40It was put to the plaintiff in cross-examination that his weight fluctuation, of up to 97kg, affected his cycling performance. The plaintiff gave evidence the races he was doing post-accident were “strictly criteriums, predominantly flat or downhill races where a bit more weight was advantageous.”[25] The plaintiff explained in criteriums, or circuits, the downhill part is much steeper than the climb and favours cyclists with extra weight.[26] I reject counsel for the defendant’s submission that the plaintiff’s answer “again is cause for concern”,[27] as the plaintiff clearly explained the aerodynamics whereby cyclists who are heavier can go faster downhill.
[25] T 42
[26] T 47. In fact, the question by Counsel was “So you say this is a circuit that favours fat blokes?” “– Yes”.
[27] T 89
Disclosures to doctors
41The defendant also submitted the plaintiff’s credit was impacted by the fact he did not disclose to Dr Michael Epstein, psychiatrist, his employment difficulties at IBAC and when he saw Dr Epstein on a second occasion, he disclosed his IBAC issues but did not mention he was undergoing gender transition treatment. Further, when the plaintiff sees Dr Gregory White, psychiatrist, he disclosed a very truncated version of the IBAC issue and made no disclosure that he was undergoing gender transition treatment.
42Counsel for the plaintiff noted this was not put to the plaintiff in cross-examination and submitted the deeply embarrassing nature of this personal information for the plaintiff as well as the plaintiff’s fear of discrimination and stigma associated with gender transitioning. Counsel for the plaintiff submitted this should not impact on his credibility for the purposes of this application regarding the plaintiff’s shoulder injury. I accept this submission with respect to the plaintiff’s reluctance to disclose or discuss his gender transitioning. Further, at IBAC, his affair with a client meant it was not just an employment issue, but his difficulties were of a complicated nature, intertwining personal, family and employment. Whilst I note Counsel for defendant’s referral to Mobilio v Balliotis & Ors [1998] 3 VR 833 at 836; “…the opinions of medical experts are to a considerable extent dependent upon the accuracy of the claimant as historian,” and Rowe v Transport Accident Commission [2017] VSCA 377, I am not of the view it is fair to impugn the plaintiff’s evidence on the basis of his failure to disclose discomfiting information such as his affair or gender transitioning treatment.
Work at Jetstar
43Counsel for the defendant also raised the plaintiff’s credit with respect to his employment at Jetstar on the basis that the plaintiff was “actively misleading”,[28] by stating in his affidavits he could not cope with the physical aspects of cabin crew work. Further, he could not remember if he had a physical test as part of his employment process. It was put it was misleading as there were no references in the clinical notes of this alleged difficulty. I found the plaintiff’s evidence regarding the use of his arms to place luggage in the overhead lockers believable. It made sense that whilst trying to use his right shoulder as much as possible, he would invariably have to use both arms to do this. I accept he was unable to cope with the physical aspects of the role and ultimately stopped working at Jetstar for this reason. I also accept the plaintiff’s evidence that he could not recall doing a physical test for Jetstar and that with respect to his current employer, Pet Plan, he was told he did not have to write down his prime medical history, unless it actively interfered with his job. There is no evidence to the contrary put regarding either of those matters and I accept the plaintiff’s evidence.
[28] T 92
44The defendant’s medico-legal report from Mr Dooley states: “Following the injury that he sustained and the surgery that he has undergone, I would expect Mr Davis to continue to note some intermittent pain and to have difficulty with a lot of heavy physical activity and a lot of activity at and above shoulder level.”[29] This reference to heavy physical activity, at and above shoulder level is an apt description of a flight attendant’s task of putting hand luggage in overhead lockers.
[29] PCB 126
Description of pain and general practitioner’s records
45The defendant’s counsel noted in the plaintiff’s second affidavit, the plaintiff referred to the pain as “excruciating”, however stated he takes some form of pain relief once every two or three weeks. It was submitted the reference to excruciating pain is completely unsupported in the clinical notes.[30]
[30] T 93
46Referring to the Court of Appeal decision of Philippiadis v Transport Accident Commission,[31] the defendant’s counsel noted there is no reference in the clinical notes of the plaintiff referring to left shoulder pain except for entries on 16 July 2018, 7 December 2018, 18 January 2019, and 21 January 2021,[32] and there is no comment in the clinical notes about ongoing pain post-surgery.[33]
[31] [2016] VSCA 1
[32] DCB 36, DCB 43-45 and DCB 69
[33] T 95
47During cross-examination, counsel for the defendant took the plaintiff to, amongst others, a clinical note recorded by his general practitioner, Dr Jolai Evans dated 7 December 2018 which contained a note; ‘Attending more for shoulder injury’.[34] Counsel for the defendant suggested that this was the first mention in the clinical notes of any complaint of a shoulder injury since July 2018, and then put to the plaintiff that until shortly before he had his initial consultation with Mr Carr in January 2019, the plaintiff’s shoulder was going well. The plaintiff denied this and said:
“I wouldn't say - you reference 'It's going pretty well' as if there was no pain that it had completely or almost healed to a status where it was pre-injury; that is not the case. There was on going pain with it. I'm a person who would rather find alternative ways of dealing with the pain…and trying a number of different options than going to a medical practitioner and simply getting medications to assist with that pain. So the reference that the shoulder was pretty good I would argue is incorrect. It's more that the injury and the pain got to a point where…I needed to do something about it, rather than take on…a stoic personality, which I generally do…I reached a point where I realised that something needed to be done.”[35]
[34]T 49-50
[35]T 50
48The plaintiff agreed that he did not make any complaint for six months as he was being stoic.[36]
[36]T 51
49Further, during cross-examination defence counsel put to the plaintiff that he does not hesitate to go to the doctor for any ailment and the clinical notes are replete for all sorts of reasons, which the plaintiff denied.[37] It was also put to the plaintiff that the reason he did not make any complaints about his shoulder, amongst all his other medical issues, was because he was not having much trouble with his shoulder until December 2018, which the plaintiff also denied.
[37]T 50-51
50In considering the status of medical practitioners notes which record an admission against the plaintiff’s interests, the Court of Appeal in Philippiadis v Transport Accident Commission [2016] VSCA 1 at paragraph [106] stated:
“However, where an injury is having serious adverse health consequences for a patient and that patient visits his or her general practitioner on a regular basis, it would be very unusual for the patient not to mention those consequences and for the practitioner’s clinical notes not to refer to them over a lengthy continuous period of time.”
51On 16 July 2018 the general practitioner noted ‘Discussed still getting some pain in the shoulder. Ongoing legal proceedings. Pain is mostly AC area.’[38] The plan recorded is ‘Seek approval from TAC to get orthopaedic opinion for shoulder.’ On 7 December 2018 the general practitioner notes ‘Attending more for shoulder injury- has not heard anything from TAC re ortho opinion. Call to TAC – doesn’t need approval for initial consult with ortho.’[39] The actions recorded are ‘Letter to Mr Ashley Carr…written’ and MRI request for left shoulder.
[38] DCB 36
[39] DCB 43-44
52The period between July 2018 and December 2018 appears to be explained by the general practitioner seeking approval from the Transport Accident Commission in July 2018 for an orthopaedic opinion and a phone call in December 2018 revealed approval was not required. Following the referral to Mr Carr, the plaintiff had a guided corticosteroid injection to the shoulder on 17 January 2019.
53Ten months later, the plaintiff in his first affidavit (25 November 2019) refers to the shoulder pain as constant, at “about 4 out of 10.”[40] In his second affidavit (29 September 2022), he refers to “constant ongoing pain in my left shoulder. I have a constant dull aching pain, as well as a squeezing/pressure type pain in the joint of my left shoulder.” He describes the pain as aggravated by certain movements as well as the weather.[41] In his third affidavit (15 June 2023), he describes the pain as “constant and unremitting” and that “the pain fluctuates but I am never without pain.”[42]
[40] PCB 7
[41] PCB 12
[42] PCB 132
54He was stoic and his affidavit material confirms he sought to avoid medication. Mr Carr notes when the plaintiff comes to see him at the initial consultation of 9 January 2019, it is against a background of increasing pain.[43] This appears to be part of the plaintiff’s pain trajectory as, in the six months post-surgery he reported as relatively pain-free however after that period the pain returned. This confirms the plaintiff’s evidence in his affidavit where he refers to the fluctuating nature of the pain he experiences.
[43] PCB 44
55In this case, I accept the plaintiff’s explanation for the absence of constant reference to his left shoulder injury in the general practitioner’s notes. He stated he had ongoing pain, but he did not want to take medication for the pain and was stoic. But the pain had got to the point that he needed to do something. Taking those factors into account, his credit is not diminished by the fact he is not reporting his shoulder pain to his general practitioner on each visit.
56Further, I note the reference to the pain being “excruciating” in the plaintiff’s second affidavit is specifically with reference to when he awakens after rolling onto his left side or after falling asleep on his left side. That is when he has to take medication such as Ibuprofen, Celebrex or Oxycodone to get back to sleep because of the intensity of the shoulder pain.[44] He describes his general pain as “constant, dull aching pain.”[45]
[44] PCB 16
[45] PCB 12
57Overall, I found the plaintiff to be a credible witness. He was straightforward, intelligent, and thoughtful. Despite the confronting phrasing of some of the questions,[46] he remained measured. I also found the histories as they related to his physical shoulder injury in the medical material to be largely consistent with plaintiff’s affidavits and evidence.
[46] T 42 “Well if we watch the Giro or the Tour de France on TV, we don’t see any fat blokes; do we?”
Serious injury
58I now consider the pain and suffering consequences of the injury and to President Maxwell in Haden Engineering Pty Ltd v McKinnon,[47] in considering the plaintiff’s experience of pain and the disabling effect of pain.
[47] [2010] VSCA 69
Pain and suffering
59In his first affidavit, the plaintiff stated:
“I continue to suffer from constant ongoing pain in my left shoulder at about 4 out of 10. My left shoulder is also much weaker than my right shoulder.
The pain is aggravated if I raise my left arm above my shoulder, or if I lift any weights or do any pushing or pulling exercises with my left arm. I am unable to perform a shoulder press above shoulder level. Cold weather also aggravates my pain.
I constantly wake at night when I roll onto my left side and then it takes me some time to get back to sleep. I sometimes get up to take Ibuprofen.”
I try to avoid taking pain medication as much as possible.
I do as much housework as I can but avoid any jobs requiring heavy lifting or reaching, such as trimming high hedges. I try to avoid carrying any heavy items in my left hand.
I feel generally must much less happy than I was before the accident and feel flat about 60% of the time. My self-esteem and self-confidence have been reduced.
My libido has been reduced since the accident and I have to be careful with my left shoulder during sex.
I was unable to cope with the physical aspects of the cabin crew work for Jetstar, which was a role that I otherwise really enjoyed and would have continued in but for the ongoing injury to my left shoulder.[48]
[48]PCB 7
60In his second affidavit the plaintiff stated:
“As referred to in paragraph 37 of my first affidavit, I continue to have constant ongoing pain in my left shoulder. I have a constant dull aching pain, as well as a squeezing/pressure type pain in the joint of my left shoulder. My left shoulder continues to be weaker than my right shoulder.
While I have had some improvement in my left shoulder range of motion since the surgery, my left shoulder pain continues to be aggravated by lifting my left arm above shoulder height repetitively, lifting heavy weights or doing pushing/pulling exercises repetitively with my left arm. Sitting, standing or doing things for prolonged periods of time, aggravates the pain in my left shoulder. The aching and squeezing pain becomes more intense. I get an increasing compression type pain in my left shoulder and pressure in the left shoulder joint when the pain worsens.
My left shoulder pain continues to be worse in cold weather, as referred to in paragraph 38 of my first affidavit. I find the changes in the weather, particularly quick changes in the weather from hot to cold (or vice versa) leads to an increased aching pain in my left shoulder as well as more tenderness, soreness and restrict movement of my left shoulder.
I take pain medications, such as Nurofen or Ibuprofen, from time to time, when my pain is aggravated to the point of becoming unbearable. I usually take some form of pain relief once every 2 to 3 weeks. I try to avoid taking pain medications as much as possible, because I do not want to become addicted to pain medications. I would also prefer to be aware of my left shoulder pain and restrictions, rather than masking the pain and potentially causing further damage to my left shoulder.”[49]
[49] PCB 12-13
61In his third affidavit, the plaintiff stated:
“The pain and suffering consequences that I deposed to in my earlier affidavits remain largely similar.
I continue to suffer from constant and unremitting pain in my left shoulder. The pain fluctuates but I am never without pain. The pain is predominantly around the top and front of my left shoulder. My left shoulder feels like it is constantly under pressure, sort of like someone is driving their fingers into it.
As a result of my injury, I am limited in the range of motion in my left shoulder. If I raise my left shoulder above around 75 – 90°, I feel a pull and straining sensation which in turn causes pain. I now try to limit overhead activities, where possible.
I also try to limit taking strong medications. Instead, I try to manage my pain by having remedial massages. I have massages on a variable basis but estimate maybe once or twice a week. I have been prescribed Palexia (50mg tablets containing 20 tablets per box), for when the pain is really bad. My usage of Palexia fluctuates, but on average I take one per week.”[50]
[50]PCB 132-133
Cycling
62In his first affidavit, the plaintiff detailed his interest and involvement in the sport of cycling. He stated he began competing in races in Victoria and then spent about six months competing in Europe. He returned to Australia and moved to Queensland and completed in bicycle races full-time for about six months. He also stated:
“I returned to competitive cycling and by early 2017 I had reached “C” grade racing weekly. I was moved up to “B” grade after a further month and then to “A” grade in about August 2017.”[51]
[51] PCB 5
And:
“I gradually returned to competitive cycling after the accident but mainly doing closed circuit racing around a street circuit at the old Ford factory in Campbell Field, in little traffic. I returned to “B” grade in August 2019, but do not believe that I will be able to return to “A” grade.
I continue to suffer from flashbacks to the accident about once a month and have intrusive thoughts about it almost every day. I am much more anxious and wary as a cyclist.”[52]
[52]PCB 7
63In his second affidavit, the plaintiff gave more detail about his competitive cycling. He represented Australia in Europe and raced bikes full-time overseas when he was younger. He stated:
“I got back into competitive cycling in around 2015 or 2016, with the aim of progressing to competitive cycling at an A-grade level and winning the club championship. I wanted to be the best cyclist in A-grade. I have always been very competitive. For me, winning the club championship was a recognition of the time and effort spent training regularly on a daily and weekly basis. I also hoped to be able to compete in state level races.”[53]
[53]PCB 13
64He further stated:
“At the time of the accident, I was about to start the cycling season, having moved into racing at A-grade level in around August 2017. I was competing in training, riding approximately 400 km per week…I also rode in weekly competitive road races, usually on a Sunday, throughout the year. I race predominantly in 60-70km road race events at club level. I also competed in shorter races (criterium and graded events) that lasted for about 60-90 minutes around a shorter 1 km to 1.2 km street circuit in Campbellfield.”[54]
[54]PCB 13-14
65He described that after the accident and prior to surgery it took him about nine months to get back to any form of cycling or training. Before the surgery, he tried some longer rides of about 100km however his left shoulder pain would worsen on the training ride and become aggravated for three to four days afterwards, which prevented him training during the week. In 2021, he tried competing in C grade on about 12 different occasions. In half of these, he had to pull out after 30 to 60 minutes of racing because of his left shoulder pain.[55] Post-surgery, his pain prevents him from any long-distance riding over 80km especially where there are hills involved.
[55]PCB 14-15
66In his third affidavit, he stated that after the surgery in August 2021, he has not been able to return to any form of racing and stated:
“I have attempted several short training rides to see how my left shoulder holds up, and again each time I have been left in severe pain. I believe the last time I rode my bike was about two months post-surgery.”[56]
[56]PCB 133
67Further, he stated:
“Cycling was a huge part of my lifestyle and my life. The fact that I am now unable to do it is incredibly frustrating. I put in an enormous amount of effort and time into becoming a very competitive cyclist. It is heartbreaking that I can no longer participate in the sport that I loved.”[57]
[57]PCB 133
Household chores
68In the plaintiff’s second affidavit, he stated that before the injury he used to help with household tasks such as cleaning, vacuuming, and mopping in the house. Since the accident his wife tends to do the vacuuming and mopping, and he can only help for short periods.[58] He has difficulty lifting loads of washing out of the washing machine and hanging washing out dry. His wife does the heavier jobs around the house and the gardening. He has difficulties lawn mowing, holding the whippersnapper, and lifting and holding his arm up for prolonged periods in doing the housework or gardening.[59]
[58]PCB 17
[59] PCB 17 -18
Personal
69In his first affidavit the plaintiff stated:
“My libido has been reduced since the accident and I have to be careful with my left shoulder during sex.”[60]
[60] PCB 7
70In his second affidavit he noted his libido continues to be reduced since the accident and his sexual intimacy with his wife continues to be restricted and limited because of his left shoulder pain.[61]
[61] PCB 18
71He was cross-examined that other factors such as his gender transition treatment may have affected his intimate relationship with his wife, propositions with which the plaintiff disagreed.[62]
[62]T 73
72In his third affidavit he referred to his gender transitioning at the Austin Gender Clinic where he had treatment for approximately three years. He noted he had ceased the treatment and is not planning on resuming the treatment, owing to the discrimination and stigma associated with being transgender and because he did not want his family adversely affected by his actions.[63]
[63] PCB 132
73The plaintiff also stated he continued to have difficulties with his sleep because of his left shoulder pain. He stated he avoided sleeping on his left side and if he inadvertently rolled onto his left side or fell asleep on his left side, he would wake with pain in his left shoulder. He described the pain as excruciating, feeling like he had been repeatedly kicked in the shoulder. If this happens, he usually has to take Ibuprofen, Celebrex or Oxycodone to get back to sleep because of the intensity of the pain in his left shoulder.[64]
[64] PCB 16
74The plaintiff stated he finds it difficult to find a comfortable position in which to sleep and uses a barrier of pillows to stop himself from rolling onto his left shoulder.[65]
[65] PCB 17
Treatment and medication
75After the accident on 16 January 2018, the plaintiff was taken by the ambulance to the Royal Melbourne Hospital. He had X-rays of his left shoulder and chest.
76On 18 January 2018, the plaintiff’s general practitioner, Dr Evans arranged an ultrasound on his left shoulder due to his ongoing pain. He then commenced physiotherapy treatment with Mr Nash Egan at Vineyard Medical Centre. In April 2018, he ceased physiotherapy treatment and commenced paying for remedial massages.[66]
[66]PCB 5
77As his left shoulder condition was not improving, Dr Evans referred him for an orthopaedic review.
78On 12 December 2018, the plaintiff had an MRI scan of his left shoulder and was referred to Mr Carr, orthopaedic surgeon. Mr Carr recommended an injection.
79In January 2019, the plaintiff had a cortisone injection into his left shoulder which did not provide any benefit.[67]
[67]PCB 6
80In February 2021, the plaintiff had a second ultrasound guided cortisone injection.
81On 6 February 2019, Mr Carr requested approval for left shoulder surgery in the form of a mini open acromioclavicular joint resection.
82On 3 August 2021, the plaintiff had left shoulder surgery, namely an acromioclavicular joint resection, performed by Mr Carr. The surgery was approved and paid for by the Transport Accident Commission. Following the surgery, the plaintiff was referred for physiotherapy treatment and he was shown a series of home shoulder exercises.[68]
[68] PCB 11
83Until early 2022, the plaintiff had regular remedial massages for his left shoulder once or twice a week. He continues to see his massage therapist when his left shoulder pain flares up. He continues to do strength and conditioning exercises as instructed by his physiotherapist and remedial massage therapist at home and at the gym. He has difficulty with repetitive exercises especially pushing or pulling exercises.[69]
[69] PCB 11
Medical evidence
84The plaintiff’s treating shoulder, hip and knee surgeon, Mr Ashley Carr provided a report dated 10 September 2021. He noted leading up to his consultation, the plaintiff had an increase in pain particularly around the AC joint and noticed this particularly at night-time. It was causing a sleep disturbance and the plaintiff was only able to lie on his left side for about 15 minutes.[70]
[70]PCB 44
85In his report, Mr Carr stated after the examination it was clear the plaintiff’s acromioclavicular joint was symptomatic. The MRI scan confirmed distal clavicle osteolysis with some small articular surface cysts of the distal clavicle and synovitis of the AC joint itself. He organised for the plaintiff to have an ultrasound guided injection of his acromioclavicular joint which he had on 17 January 2019. Further, on 3 August 2021 he performed the left acromioclavicular joint resection.[71]
[71]PCB 44-45
86In his second report dated 29 March 2023, Mr Carr noted he saw the plaintiff on 2 November 2022, 12 months after his surgery. The plaintiff reported to Mr Carr “an excellent result for the first six or seven months with good relief but told me that his symptoms of his shoulder had gradually recurred over the last six months, including night pain.”[72] Following an MRI scan, Mr Carr stated, “the cause of Craig’s ongoing discomfort is uncertain.”[73]
Plaintiff’s medico-legal reports
[72] PCB 47
[73] PCB 47
Mr John O’Brien
87In his report dated 14 August 2019, Mr John O’Brien, orthopaedic surgeon noted:
“…that he experiences constant pain localised to the superior aspect of his left shoulder. The patient stated that the severity of this pain is 4/10 on the Visual Analogue Scale. Mr Davis states that the pain is aggravated if he elevates his left arm above shoulder level, and also if he lifts any weights or does pushing or pulling exercises with the left arm.”[74]
[74] PCB 50
88Mr O’Brien stated:
“…it would appear the patient has sustained a significant strain of the joint, superimposed upon degenerative change demonstrated on investigation. As a result of this, the patient now has chronic left acromioclavicular joint pain…The injury is consistent with the stated cause.”[75]
[75] PCB 51-52
89Mr O’Brien noted the plaintiff’s prognosis was “rather poor”, and that overall, “the patient now is somewhat limited in his general, social, domestic and recreational activities and this is likely to be an ongoing problem.”[76] He noted the clinical condition appears to be stable and his level of impairment is permanent.
[76] PCB 52
Mr Russell Miller
90In his report dated 24 September 2021, Mr Russell Miller, orthopaedic surgeon, noted the left shoulder is the plaintiff’s major problem:
“He has ache, discomfort, and pain in the left shoulder, worse with repetitive and overhead activities. He has had recent shoulder surgery, approximately 8 weeks ago and feels his symptoms are slowly improving but remain problematic….His symptoms fluctuate, causing difficulty with activities of daily living and with work. He reports sleep disturbance.”[77]
[77] PCB 79
91Mr Miller diagnosed the plaintiff referring to the operation report of Mr Carr, noting operative findings included labral tear, tear of the infraspinatus, chondral pathology, and acromioclavicular degeneration for which he performed resection arthroplasty and rotator cuff repair.[78]
[78] PCB 83
92Mr Miller regarded the plaintiff’s “current clinical status is regarded as being substantially accident related.”[79] Although the plaintiff recently had surgery and is still recovering, he regarded his condition as substantially stabilised.
[79] PCB 83
Mr Ash Chehata
93Mr Ash Chehata, a shoulder elbow and wrist surgeon, prepared a report dated 26 August 2022. He diagnosed the plaintiff with a likely aggravation of AC joint arthritis in the left shoulder that was completely asymptomatic.[80] He noted the plaintiff’s prognosis is guarded, considering there are other psychosocial issues at play.[81]
[80] PCB 112
[81]PCB 113
94In his supplementary report dated 23 February 2023, Mr Chehata noted as there was an increase in ongoing night pain to the plaintiff’s left shoulder and ongoing discomfort, he was waiting to see a final overall treatment plan from Mr Carr. He noted the two treatment options were, a posterior labral tear being a likely constitutional and degenerative component and an incidental finding, but also noted the possibility of early arthritis as a result of the transport accident.[82]
[82] PCB 117-118
95In his third report dated 5 May 2023, Mr Chehata answered questions regarding the extent to which the plaintiff’s current injury impacted his cycling. He concluded with respect to the plaintiff’s pain levels, stating, “It is certainly a very difficult overall picture to explain from a purely biomechanical standpoint.”[83]
Defendant’s medico-legal report
[83] PCB 122
Mr Michael Dooley
96In his report dated 26 September 2022, Mr Michael Dooley, orthopaedic surgeon, diagnosed the plaintiff “sustained a soft tissue injury to his left shoulder region that most likely involved some aggravation of underlying naturally occurring degeneration involving the acromioclavicular joint.”[84]
[84] PCB 126
97He stated the plaintiff notes:
“…ongoing pain in his left shoulder. He is right handed. He notes difficulty with any heavy physical activity and with activity at and above shoulder height. He has difficulty pushing a lawn mower or hanging out washing. He finds he is unable to lie on his left side for more than two minutes. He is not taking analgesic medication. He said he has not ridden a bike for around 12 months because road vibrations make his left shoulder sore.”[85]
[85] PCB 125
98He noted an overall good range of motion of the left shoulder joint and that, “Following the injury that he sustained and the surgery that he has undergone, I would expect Mr Davis to continue to note some intermittent pain and to have difficulty with a lot of heavy physical activity and a lot of activity at and above shoulder level.”[86] He also noted he did not believe the plaintiff is exaggerating his physical symptoms.[87]
[86] PCB 126
[87] PCB 127
Findings and reasons
99The consequences of the injury must be serious to the particular plaintiff, and the question to be asked is: “can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[88]
[88]See Humphries and Anor v Poljak [1992] 2 VR 129. Also see Mobilio v Balliotis & Ors [1998] 3 VR 833
100The plaintiff’s injury is supported by the medical evidence. Although I note he has not continually reported pain in his shoulder to his general practitioner, the plaintiff has an aggravation injury to his left shoulder region involving the acromioclavicular joint for which he has had two guided injections as well as surgery.
101I have considered the challenges raised regarding the plaintiff’s credit. I have not found his credit impugned and I accept the contents of his affidavits and evidence with regards to the pain and suffering consequences of his injury.
102The consequences of the injury are such that the plaintiff is in constant ongoing pain. In his third affidavit, he described it as “constant and unremitting pain” in his left shoulder. Although the pain fluctuates, he states he is never without pain.[89] This is a very serious consequence for him.
[89] PCB 132
103The plaintiff has tried to limit taking strong medications and tries to manage his pain with remedial massages. He has also been prescribed Palexia (50mg tablets) for when the pain is really bad and averages taking one per week.
104The disabling effect of pain include that the plaintiff’s sleep is disrupted, and he is awoken at night if he rolls onto his left side. This is documented in his first and second affidavits. In relation to sleep, President Maxwell in Haden Engineering Pty Ltd v McKinnon[90] stated; “It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep.”[91] In this case the plaintiff has painful awakenings if he rolls onto his left side.
[90] [2010] VSCA 69 at paragraph [45]
[91] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [45]
105He has restricted movement and has difficulty raising his left arm above his shoulder as well as doing pushing and pulling exercises. In his third affidavit, he states he has a limited range of motion in his left shoulder and if he raises it above 75 to 90 degrees, he feels a pull and straining sensation which in turn causes pain. He limits his overhead activities where possible.[92]
[92] PCB 132
106The plaintiff came across as a stoic person who has continued to work despite his injury. This is indicated by his six-month period at Jetstar which he had to stop because of problems with his left shoulder and the difficulty he had putting luggage in overhead lockers as well as the other physical requirements of the role. I accept his evidence of his physical restrictions and accept this is the reason why he stopped working at Jetstar. He is now working full-time as a dispute resolution officer at the insurer, Pet Plan. These restrictions also impede his ability to assist with heavier household chores such as putting the washing out, vacuuming and mowing and any task which requires lifting or holding his arm up for a prolonged period.
107The pain has also significantly impacted the plaintiff’s ability to pursue his great love of cycling. He is no longer able to compete or train and this is a very significant consequence for the plaintiff. His evidence was that pre-injury, he was cycling some 400km per week. He regularly rode to and from work about 1.5 hours each way for about four days a week and competed in weekly races on the weekends throughout the year.
108Against this, the defendant’s counsel submitted the plaintiff had other ongoing concerns such as blood pressure, weight gain (including taking the weight loss drug Duromine), as well as his course of gender transition treatment at the Austin Hospital, all of which had a negative impact on his cycling and therefore, his loss of cycling as a major consequence of his injury, “doesn’t bear scrutiny.”[93]
[93] T 89
109I have already considered the issue of his grade of racing and weight in my assessment of the plaintiff’s credit. In my view, the submission his blood pressure and gender transitioning were the reason the plaintiff is not able to cycle is not supported by the evidence. I was not referred to any medical advice to the plaintiff that he could not engage in cycling because of these factors. Further, the plaintiff was attempting to ride in the lead up to his surgery of 3 August 2021. After the transport accident, I accept his evidence it took him nine months to get back into cycling and that during longer rides of over 100 km his shoulder pain would worsen and require days to recover. In 2021, he tried competing in about twelve C-Grade races, half of which he had to pull out of because of shoulder pain. I accept the plaintiff’s evidence that at the time of the accident, he was competing, training, and riding approximately 400km per week and that he tried to continue to ride in the lead up to his surgery, thwarted in part by his shoulder pain. He has now not ridden since a couple of months after his surgery.
110I accept the injury consequence of the plaintiff not being able to participate in the sport of cycling has been a very significant consequence for him.
111It is a relevant consideration to look at the likely period these consequences will be experienced, and I note at age 53, the plaintiff is in relatively early middle age.[94]
[94] See Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph [43]
112I take into account the pain and suffering consequences of the impairment considered as a whole, meaning globally all of the pain and suffering experienced by the plaintiff to which the compensable injury materially contributes.[95] The pain and suffering consequences are constant and unremitting, the disabling effects are very significant, and the evidence supports they are long term, at least for the foreseeable future. I am satisfied on the balance of probabilities the combined consequences of the injury are serious to the plaintiff when judged by comparison with other cases in the range of possible impairments and losses and are at least “very considerable” and certainly more than “significant” or “marked”.
[95] See Sutton v Laminex Group Pty Limited [2011] VSCA 52 at paragraph [114]
113Leave is granted to the plaintiff to commence common law proceedings for the injuries he suffered in the transport accident on 16 January 2018.
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