Dimitrakopoulos v TAC
[2010] VCC 223
•31 March 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-00769
| PANAGIOTA DIMITRAKOPOULOS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 and 20 November 2009 |
| DATE OF JUDGMENT: | 31 March 2010 |
| CASE MAY BE CITED AS: | Dimitrakopoulos v TAC |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0223 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – serious injury application pursuant to s.93 of the Transport Accident Act 1986 – serious injury claimed for back and shoulder injury – leave granted to plaintiff to commence proceedings for shoulder injury only.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Robinson | Hounslow & Associates |
| For the Defendant | Mr P A Scanlon QC with | Solicitor to the Transport |
| Ms R N Annesley | Accident Commission | |
| HER HONOUR: |
Preliminary
1 The plaintiff seeks leave to commence a proceeding pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injury suffered in a transport accident on 31 March 2002 when she was driving her vehicle on the exit road from the Eastern Freeway, facing a green arrow to turn right into Tram Road. She commenced the turn. A vehicle travelling along Tram Road from Doncaster failed to stop at the traffic lights, and collided with the right-hand side of the plaintiff’s vehicle, in the vicinity of the driver’s door.
2 The plaintiff identified two discrete injuries relied upon: first, a right shoulder injury causing impairment or loss of body function of the right upper limb and, secondly, a back injury principally affecting the body function of the thoracic and lumbar spine area.
3 The plaintiff seeks leave to claim damages against the defendant with respect to those injuries, that each has the consequences that are serious with respect to aspects of damage contemplated by s.93 of the Act, being pain and suffering and loss of earning capacity.
4 The plaintiff relied on her affidavits sworn 16 October 2008 and 10 November 2009 and was cross-examined, as was the original treating general practitioner, Dr Krips. The plaintiff’s husband, Nicolas Dimitrakopoulos, swore an affidavit of 10 November 2009, as did her son, Kon Dimitrakopoulos. The affidavits were tendered in evidence, as were medical reports of treating and examining doctors and the clinical notes of Dr Krips which are contained in the Plaintiff’s Court Book. The defendant relied upon medical reports contained in the Defendant’s Court Book. I have read all the tendered material.
5 On behalf of the defendant, counsel outlined the position of his client as follows:
•
The nature and extent of the injury, compared with the range of cases that come before the Court, could never be said to be a serious injury;
•
The consequences of the subject transport accident did not meet the “very considerable” test required by the authorities;
• The credit of the plaintiff would be called into issue.
Background
6 The plaintiff’s evidence is that apart from time out to have her children she has worked up until the time of the accident. She was in employment until 1988 when she and her husband went into partnership in a milk bar business at Shop 21, Mountain Gate Shopping Centre in Ferntree Gully. The milk bar business was converted to a charcoal chicken take-away business. At some stage the freehold was purchased. The plaintiff deposed to working six days a week in the family business, selling chickens and sandwiches. The job required her to be on her feet most of the day and to undertake repetitive bending and lifting.
7 The plaintiff has not returned to work since the accident. The business was sold in May 2008. The plaintiff agreed in cross-examination that her sons were involved in the business and that while she was off work the girlfriend of one of her sons worked in the business until she found another job. The plaintiff did not know whether the girlfriend was paid; the financial material suggested she was not. That material suggested that the plaintiff received drawings despite the fact that she was not working.
8 Prior to the accident, the plaintiff had a number of minor medical procedures. In February 1999, she had a colonoscopy and a gastroscopy performed; in 2000, an excision of a benign lump from her breast; and on 15 October 2001, a surgical repair of an abdominal hernia. After the hernia operation she complained to her general practitioner of back pain and headaches. She was not given any treatment or medication for it and did not have any x-rays. As a result of the hernia repair, she was off work recuperating until the charcoal chicken business closed for the Christmas break. She was depressed following the surgery and having to stay at home. The business re-opened on about 20 January 2002 and the plaintiff returned to work performing her normal duties without restrictions. The plaintiff deposed that apart from the above, she had been in good health.
9 The plaintiff’s husband swore an affidavit in which he deposed that the plaintiff had worked with him, often working seven days per week in the shops they had owned. She was hardworking and energetic.
10 In addition, the plaintiff ran the family home and raised the children. She returned to work after the hernia operation and was working without restriction. She had not worked in the shop since the accident. He now does most of the housework, their social life is affected and he sold the business because of his own health and the increasing workload, both at home and work, became too much.
11 The plaintiff’s son, Kon, swore an affidavit in which he deposed that he worked in the business with his parents. He said that prior to the accident his mother worked in the business cooking and cleaning. She never complained and worked “like a machine”. She was responsible for most of the cooking, cleaning and housework at home. Since the accident she no longer works in the business; she does not like being unable to work and he has to assist with the housework at home.
Medical Evidence
12 On the day of the accident, the plaintiff attended the Knox Private Hospital. The nursing notes recorded that she had a soft tissue injury to the right elbow, forearm and right leg. X-rays were taken of her lumbosacral spine which showed no evidence of bony or joint trauma.
13 On 3 April 2002, the plaintiff attended Dr Dunne, a general practitioner at Mountain Gate Shopping Centre, who provided a medical certificate which referred to cervical intervertebral joint strain, thoraco-lumbar intervertebral joint strain, lumbo-sacral intervertebral joint strain and certified incapacity from 3 April to 3 May 2002. He referred her to the Knox Private Hospital. X-rays were taken of the cervical spine, chest, left ribs, pelvis and hips, which showed no fractures. She was given medication and advised to have physiotherapy.
Cross-Examination of Dr Krips
14 Dr Krips, a general practitioner at the Mountain Gate Shopping Centre, was cross-examined by the defendant’s counsel. She had treated the plaintiff from 1991 until 2002 and the practice had seen the plaintiff on fifty five occasions during that period. The plaintiff consulted the general practitioners at the Mountain Gate Shopping Centre until the end of April 2002.
15 Dr Krips gave evidence that the plaintiff had complained of back problems in 1995 and on 31 October, 8 November, 12 November and 19 November 2001.
16 Further, the plaintiff, on a number of occasions in late 2001 after the hernia operation, requested a certificate for one year off work. Dr Krips declined.
17 On 12 March 2002, the plaintiff was seen by another doctor at the practice, Dr Lazzari. He recorded that the plaintiff had failed to take medication for hypertension and hyper-lipidemia, and was depressed.
18 On 11 April 2002, the plaintiff attended Dr Krips complaining of pain in the left rib cage, right side painful, severe pain everywhere and a sore right shoulder. A Centrelink Certificate was given from 11 April 2002 to 30 June 2002. She returned on 29 April 2002 and complained that her health was worse; she was suffering with aches and pains. She felt nauseous and was complaining of right-sided pain. It was Dr Krips view that the plaintiff suffered a soft tissue injury. The plaintiff told Dr Krips that if the back gets better, she will go back to work; she wanted to return to work.
19 In cross-examination, Dr Krips stated:
“Initially [she] said she could no longer work and wanted to go on [a] disability income on medical grounds. [She] announced to [the] receptionist on [the] day she made the appointment for 11/4/02 that she no longer works, so could come at any time. But when discussing TAC forms, she said she is working. The accountant has her down as working. I told her she keeps changing her account to … . Keeps changing her story according to supposed needs and I do not want any part of it, to stick with her doctor in Prahran and another one in Centre Road, and I haven’t seen her after that.”
(sic)
20 The plaintiff told Dr Krips that she would get the doctor in Prahran to complete the forms.
21 Dr Krips was aware that the plaintiff was seeing doctors in Prahran and in Clayton. Dr Krips told the plaintiff that she would transfer her history to another doctor. She did not expect to see the plaintiff again.
22 Counsel for the defendant read to Dr Krips the comments made by Mr Proper to Mr Tang on the MRI scan of the plaintiff, in particular the fact that he intended to offer the plaintiff a subacromial injection of steroid. She agreed that the injection was designed to relieve pain in the shoulder and that it was a non-invasive treatment. In her experience it was not always able to assist with pain management, but it would be an unreasonable approach for a patient suffering chronic pain to refuse the injection.
23 Dr Krips was asked to comment on the x-ray report of the plaintiff dated 22 September 2009. It was her view that the CT scan of the plaintiff’s back was normal given the plaintiff’s lifestyle and age. She agreed that the CT scan showed a back consistent with age, normal wear and tear and not consistent with any fracture or discal involvement following a motorcar accident.
24 Dr Krips gave her evidence in a forthright manner. She struck me as a highly professional doctor. Dr Krips has not seen the plaintiff medically since April 2002. I accept that her history of the plaintiff prior to the accident was accurate. There would be no reason for her to record information that she was not told by the plaintiff.
25 In regard to the plaintiff’s complaint of back pain prior to the accident, I note that Dr Krips did not refer the plaintiff to any other health professional nor prescribe medication. I conclude that Dr Krips did not regard the plaintiff’s complaints of back pain as serious in 2001.
Dr Athanasios Gouras
26 In April 2002, the plaintiff complained to Dr Gouras, a general practitioner in Prahran, of a number of injuries, in particular:
• neck pain • pain in her right shoulder and joint • central lower back pain and stiffness • insomnia and feeling depressed. 27 On clinical examination, Dr Gouras noted that the plaintiff moved with guarded neck and lower back pain movements. The right shoulder was tender and its movement restricted. Pain and tenderness was present over the lumbo-sacral region and all her lower back movements were restricted.
28 X-rays in June 2002 of the lumbo-sacral and cervical spine and right shoulder showed no evidence of fracture. The plaintiff was advised to have local steroid injections to alleviate the pain in the right shoulder. She refused because of fear of complications and an unguaranteed result.
29 In November 2002, when seen by Dr Gouras, the plaintiff reported that her condition was the same but more stable. On examination, her neck and lower back movements were moderately restricted. Her right shoulder joint was tender; active and passive movement painful and moderately restricted. Dr Gouras considered the plaintiff was unfit to resume her pre-injury or any other gainful employment. He noted that the plaintiff was depressed.
30 In May of 2004, Dr Gouras responded to questions asked by the Transport Accident Commission (“TAC”). He stated that most of the plaintiff’s soft tissue injuries had resolved, that she was suffering from residual injuries in her neck, lower back, right shoulder and right knee joint, and was being treated conservatively with medication and physiotherapy. He stated that based on the history the plaintiff had given, she was not suffering any symptomatic pre- existing injuries. She was suffering from an aggravation of pre-existing injuries. He considered the shoulder, low-back and knee joint injuries had not stabilized. He considered they had become chronic.
Mr Jonathan Hooper
31 Dr Gouras referred the plaintiff to Mr Hooper, an orthopaedic surgeon, in mid- 2002. Mr Hooper commented on x-rays which showed the plaintiff had “significant cervical spondylitis, but the foraminae are OK. Her lumbar spine is normal for her age, as is her knee”.
32 In November of 2002, Mr Hooper reported to Dr Gouras that the plaintiff had a fairly unrestricted range; he was not totally convinced that her troubles were coming from her shoulder: he thought they may be coming from her cervical spine. She was reluctant to have an injection in her shoulder. He was to see her in six or eight weeks. In a report to solicitors, he was hopeful that the plaintiff would return to pre-injury employment but noted that the plaintiff did not think she would be able to do that.
Dr Alex Stockman
33 Dr Gouras referred the plaintiff to a rheumatologist, Dr Stockman. He reported in July of 2003 that the plaintiff appeared to have a rotator cuff lesion in the right shoulder. He considered most of her pain was of soft tissue origin and he recommended a steroid injection into the right shoulder but she was reluctant to undertake the procedure. He noted that x-rays of the right shoulder, right knee and lumbar spine were normal but there were degenerative changes in the lower cervical region.
Mr Amiroel Razif
34 In December of 2003, a further orthopaedic surgeon, Mr Razif, saw the plaintiff at the request of Dr Gouras. He noted that the plaintiff walked with a normal gait and was not in obvious distress. He said there was a tendency to overreact. He thought that her main complaint was functional in nature and recommended counselling.
Mr Andrew Tang
35 In November 2004, the plaintiff was referred to another orthopaedic surgeon, Mr Tang, who arranged for an MRI scan of the shoulder which he reviewed in January of 2005. He considered the plaintiff’s symptoms were due to a complete tear with the attachment of the infra-articular longhead of biceps. He said the findings were in keeping with a chronic injury. He said that ruptures of the longhead of biceps tendon rarely required surgery but in the plaintiff’s case, because she had been suffering pain for three years, she might require further management. As a result, he referred the plaintiff to Mr Stuart Proper, an upper limb specialist.[1]
Mr Stewart Proper
[1] PCB 44
36 In March 2005, Mr Proper, an upper limb specialist, reviewed the MRI scan and suggested that the plaintiff be treated conservatively with adequate pain relief, range of movement activities and rotator cuff strengthening exercises. He proposed reviewing her in six weeks when he would offer her a subacromial injection of steroid, and if that failed to improve her symptoms, then he recommended an arthroscopic subacromial decompression with a potentially arthroscopic repair of her rotator cuff. In September 2005, the TAC refused to pay for an arthroscopic debridement and rotator cuff repair to the plaintiff’s right shoulder, relying on the reports from Dr Lefkovits, Mr Hooper and Mr Dooley. The TAC stated that the plaintiff had an injury to her neck and that this was the cause of the pain in the shoulder; it did not have any information to confirm that the torn rotator cuff in her right shoulder was related to the transport accident injuries.
37 I note however, that was inconsistent with the history the plaintiff had given. First, at the Knox Private Hospital on the day of the accident the Nursing Notes stated: “Soft tissue injury to the right elbow/forearm”. Plaintiff’s counsel submitted that that confirmed there was injury of one form or another to the right upper extremity. Secondly, the plaintiff complained on 11 April 2002 to Dr Krips of a sore right shoulder, and to Dr Gouras either on 12 or 17 April 2002. Thereafter, the medical certificates confirm the right shoulder injury.
38 Further, the reports relied upon by the TAC were from doctors who had not reviewed the MRI scan upon which Mr Proper based his report and recommendations. Further, Mr Proper was the upper limb specialist.
Dr Iman Elshenawy
39 The plaintiff saw another general practitioner, Dr Elshenawy, from December 2006 to the present day. In October of 2009, he reported that she was suffering pain and that she took analgesics, that on examination she had severe limitation of movement of the right shoulder because of the pain and her husband had to help her on a daily basis to dress. The movement of the cervical spine was mildly restricted; there was a decreased range of movement in general of the thoracolumbar spine because of pain. Over the last three years he had noticed a decline in her daily functions and an increase in her pain. She was using Tramal as an analgesic on a daily basis and she has difficulty in sleeping at night because of the pain.
Medico-Legal Examinations
Mr Rodney Simm
40 The plaintiff was seen by Mr Simm, orthopaedic surgeon, in September of 2006 on behalf of her solicitors. Mr Simm was of the opinion that the plaintiff had suffered an unresolved soft tissue injury to the right shoulder with aggravation of degenerative shoulder pathology, including a full thickness tear of the supraspinatus tendon and a complete tear and retraction of the intra- articular longhead of biceps. Also, an unresolved soft tissue injury to the lumbar spine with aggravation of mild, multi-level degenerative pathology. He stated that she had an established pattern of chronic symptoms in the neck, right shoulder and low-back and felt these symptoms were unlikely to change in the foreseeable future. The protracted symptoms related to the aggravated underlying degenerative pathology. He also indicated that she remained incapacitated for pre-accident employment in the chicken shop. He thought she had a theoretical capacity for light forms of employment but could not undertake work which involved prolonged and repetitive forward bending and twisting movements of the trunk and repetitive or heavy lifting. He thought that she probably had no future work capacity.
41 Mr Simm again reviewed the plaintiff in July of 2008. He noted that her pain focus was more evident than when he last examined her. In his opinion, she had developed radiating pain to the right foot with episodes of numbness of the right leg; the symptoms were subjective and seemed to relate to nerve compression. He thought the symptoms probably represented some progression of the aggravated degenerative lumbar pathology.
42 In relation to the right shoulder, he said the signs and symptoms had changed since he last examined her in September 2006. The range of movement was less than when last examined and she presented features of a chronic pain response when examined. He considered that there was evidence of underlying organic pathology. Her right shoulder symptoms remained consistent with an unresolved soft tissue injury with aggravation of degenerative shoulder pathology, including a full thickness tear of the supraspinatus tendon and a complete tear and retraction of the intra-articular longhead of biceps. She had limited use of her dominant right upper limb for household and other physical activities and he said she was confined to using her right arm for light activities close to her body.
43 He considered that the symptoms from the condition of her right shoulder and lower back were initiated by the motor vehicle accident. He also stated that the sequelae of the injuries had precluded the plaintiff from undertaking gainful employment. He felt she remained incapacitated for work and had no realistic current work capacity. In respect to her prognosis, he considered the physical injuries had stabilised but that she will report symptoms, as detailed in his medical reports, indefinitely with no prospect of improvement in the foreseeable future.
Mr Jonathan Hooper
44 Mr Hooper, orthopaedic surgeon, reviewed the plaintiff at the solicitor’s request in May of 2009. At that time he noted on examination that her lumbar movements were diminished by at least half and her right shoulder movements were markedly restricted by discomfort, with flexion and abduction being 90 degrees only.
45 Mr Hooper thought the plaintiff had evidence of degenerative disc disease in her lumbar and cervical spines which aggravated these problems that were previously asymptomatic following the motor vehicle accident. He also said she had evidence of cuff pathology in her right shoulder that was either caused or aggravated at the time of the accident. He thought surgical treatment of her right shoulder may improve her symptoms, though he said it was impossible to say whether the symptoms in her shoulder were caused by the accident, though it would seem they were certainly aggravated by the accident. He thought she would have great difficulty getting back to her pre- injury duties of running a food shop with her back and shoulder problems. He considered her condition had stabilised.
46 This report is quite different to the report that he wrote in November 2002 when he thought her troubles were not coming from her shoulder but were coming from her cervical spine. I note that he acknowledged receipt from the plaintiff’s solicitors of “the forwarded documentation which has been duly read and noted”. Further, he referred to the MRI scan of the shoulder, presumably that taken at the request of Mr Tang in December 2004, and x-rays.
The Defendant’s Medical Reports
47 The defendant relied upon medical reports of Dr Lefkovits of September 2002, Mr Dooley of 2 July and 27 August 2004, Dr Serry of 16 September 2009 and Mr Shannon of 15 September 2009.
Dr Robert Lefkovits
48 The plaintiff was examined at the request of the TAC by Dr Lefkovits, consultant physician, in September 2002. It was his view that the plaintiff suffered soft tissue injuries to her axial skeleton and an aggravation of pre- existing degenerative disease. He suspected that the predominant cause for the plaintiff’s ongoing pain, disability and incapacity were due to non-organic factors. He accepted that she had significant nuisance symptomatology in her axial skeleton with some referred pain towards the right shoulder and right lower limb. She also had radiological evidence of significant degenerative disease which is common for her age. He had the impression that the plaintiff’s level of physical function was superior to that shown in the examination and suspected that her compliance with an active exercise program is less than optimal. He accepted she would be unable to cope with full-time pre-injury duties but he expected she could be phased back into her duties part time.
Mr Brendan Dooley
49 The plaintiff was also medically examined by Mr Dooley, orthopaedic surgeon, in July of 2004. She told him she takes medication of three Digesics per day, one Vioxx per day and occasionally Panadeine, up to two or three tablets per day if the pain is severe. Mr Dooley considered the plaintiff had suffered soft tissue injuries to her axial skeleton, both in the cervico-thoracic and lumbo- sacral areas of the spine, probably aggravating pre-existing degenerative change but with no evidence of radiculopathy. He found no evidence of injury to her right shoulder, physical examination of her right shoulder being normal, and he considered there was a large functional element to her symptomatology.
Dr Nathan Serry
50 Dr Serry, a psychiatrist, examined the plaintiff in September 2004. He diagnosed a psychiatric illness resulting from the accident as a pain disorder associated with a general medical condition and with psychological factors. He said there was a resultant Adjustment Disorder with Anxiety and Depression and mild features of traumatisation. He considered that her physical symptoms had persisted and increased and were out of proportion to the severity of the initial injury. Further, the plaintiff’s lifestyle was somewhat altered and he noted that one would have to be guarded in relation to a prognosis given the entrenchment of the claimant’s symptoms, particularly her pain.
Mr Michael Shannon
51 The plaintiff was examined by Mr Shannon, orthopaedic surgeon, on 8 September 2009. The plaintiff complained of an inability to lift her right arm and pain extending from the elbow to the shoulder, to the trapezius muscle and the neck and over to the left side of the neck. She had pain in the low- back. She needed assistance with shopping and housework and cannot lift heavy pots or bend to the oven. She stated she had never had any trouble in the relevant areas except for just a little bit of normal pain. At the examination, she claimed an inability to climb onto the examination couch, and when dressing at the end of the examination, it was noted that she put her right arm into her coat second and managed to achieve this with considerable twisting. Mr Shannon said that this would be an unusual method of dressing for someone with chronic right shoulder pain.
52 It was Mr Shannon’s opinion that she had been involved in a moderately significant motor vehicle accident and that the accident could have resulted in soft tissue injuries to her neck and/or back, and indeed to the right shoulder. In regard to the low-back, she clearly had pre-existing back problems, as evidenced by her general practitioner’s notes several months prior to the accident. He noted that she had mild degenerative change and this could have been aggravated by the accident.
53 In respect to the right shoulder, Mr Shannon considered that she did have early degenerative change in the shoulder and superior subluxation consistent with a rotator cuff injury which was supported by the MRI scan. He thought the degenerative change was pre-existing, but it was possible that the rotator cuff tear occurred in the accident. He commented that there were some non- organic features of her presentation, particularly in regard to the lumbar spine, and the function in her right shoulder, which he considered was significantly better than she would seek to demonstrate, and in particular, he noted that she had significant restriction of internal rotation to formal examination. He said that he could not exclude ongoing symptoms and restriction of movement in the right shoulder.
54 He felt that there were a number of non-organic features and inconsistencies in the examination. He also said it was difficult to compare radiology with clinical findings but the inconsistencies he did observe would suggest some lack of co-operation with the examination. He doubted that her shoulder would be amenable to surgery and he felt that her other injuries required no more than simple pain management. He thought she was capable of the lighter activities of daily life but suspected she was already becoming significantly restricted prior to the accident due to the combination of age, degenerative change, obesity and some psychological problems.
The Law
55 In order to succeed, the plaintiff must prove, the onus being upon her, that the consequences emanating from the right shoulder injury causing impairment or loss of body function of the right upper limb and/or the back injury principally affecting the thoracic and lumbar spine are at least “very considerable” and certainly more than “significant” or “marked”. The authorities have defined the word “severe” as being a word of stronger force than “serious”. It is impermissible to aggregate impairments, no one of which is a “serious long- term” impairment to separate body parts or functions in an attempt to satisfy the requirements of the definition: Humphries v Poljak,[2] considered in Lu v Mediterranean Shoes Pty Ltd & Ors.[3] It is the impairment in question which is to be assessed as being or not being serious. The injury which gives rise to the impairment is not itself the subject of evaluation: Richards v Wylie.[4]
[2] [1992] 2 VR 129
[3] (2000) 1 VR 511
[4] (2000) 1 VR 79, at 86
56 In an application for leave to bring proceedings under s.93 of the Act where the case is one of aggravation of a pre-existing condition, the plaintiff must establish what injury was caused by the accident. An analysis must be made of the extent of impairment of a body function before and after the relevant injury, and the additional impairment must involve serious long-term impairment of a body function: Humphries v Poljak, reconsidered in Petkovski v Galletti.[5]
[5] [1994] 1 VR 436
57 Mr Robinson, counsel for the plaintiff, submitted that I might be asked by one or other of the parties to proceed on the basis that the low-back injury involves an injury to a part of the plaintiff’s person that was subject to a pre-existing degeneration.
58 I must consider the consequences to this particular plaintiff. The consequence of the injury must be specific to her. But I must make the determination objectively, assessing the seriousness of impairment or loss, by a comparison with other cases in the range of possible impairments or losses:
Humphries v Poljak.
59 Counsel for the plaintiff, submitted that I could take into account emotional sequelae not constituting mental or behavioural disorder. I was referred to Richards v Wylie.
60 The matter is to be considered at the date of the trial. The plaintiff bears the onus of establishing the elements of the claim on the balance of probabilities.
The Plaintiff’s Evidence in Cross-Examination
61 The plaintiff agreed that she walked slowly and can walk her dog for a half hour or more.
62 She said that since the accident she could not vacuum, polish floors, bend, sweep, load the dishwasher, make the bed, lift a baking dish containing a roast and place the dish in the oven, or rake leaves. She said that she pulls weeds out of her garden using her left arm and cleans her teeth with her left hand. She is unable to chop the vegetables; she uses a mechanical device called a chopper.
63 She encounters difficulty in hanging out the washing, lifting up her arm to her head. She could not flick the top of her hair back along the back of her head using her arm. She carries things in her left arm. She agreed that she could do things around the house but with great difficulty and very slowly.
64 She agreed that she had back pain after the hernia operation and that on two occasions it was severe. Eventually the pain stopped.
65 She denied asking Dr Krips for a certificate for one year off work in October/November 2001. She said that she would like a good rest and to stay at home until the shop opened in January.
66 She was asked whether she asked Dr Krips to give her a certificate for one year off work so that she could get government benefits. She responded she did not know. When asked whether she remembered having a discussion with Dr Krips about a certificate for time off work for a year before the accident, she replied she did not know if it was right or wrong. I formed the view that the plaintiff’s evidence was evasive and she could not be relied upon as to these matters.
67 She gave evidence that she did not work in the chicken shop after the accident. She went to the shop from time to time, but there was nothing that she could do. She often went there to have lunch with her family.
68 She agreed that doctors had recommended she have a steroid injection into her shoulder, she said that they told her the shoulder would not get better. She said that she takes medication which alleviates the pain for a while. She mentioned taking Panadeine three times a day and Panadeine Forte Extra Strength. She also takes Tramal at night as needed. She had some difficulty in recalling the colour of the tablets. It was suggested by counsel for the defendant that the plaintiff was not taking the tablets as regularly as she suggested.
69 The plaintiff was shown film taken on 2 October 2009. The film showed the plaintiff walking at a slower pace than normal and in a slightly stilted fashion swinging her right arm, in a nursery with a man she identified as her husband. She carried her bag over the left shoulder and used her left arm more than her right, which is unusual for a right-handed person. The film showed the plaintiff in the nursery, flicking her hair, moving her hand over the top of her head. When questioned by counsel for the defendant, the plaintiff agreed that she could use her arm to do that, yet the previous day in cross-examination she said she could not.
70 She denied that she reached out to get the trolley at Bunnings. She stated that her husband always pushed the trolley.
71 She was asked whether her right arm was stationary in Court, she replied that she swang her arm. It was clear to me in Court that her right arm remained stationary. She agreed that she had not looked for work.
Findings as to Credit of the Plaintiff
72 I accept the evidence of Dr Krips that the plaintiff did seek a certificate for time off work for one year after the hernia operation. There would be absolutely no reason for a busy doctor to record such information if the issue had not been raised by the patient. Further, the plaintiff was less than frank when cross- examined on this point. She was in fact evasive. She was also evasive in respect to other matters she had told Dr Krips, namely her relationship with her husband.
73 It was evident to me that the doctor-patient relationship between Dr Krips and the plaintiff had broken down in 2001. That is not uncommon. The plaintiff elected to return to her former general practitioner in Prahran, travelling some 40 kilometres. She explained that her family, friends and daughter lived in the area and visits were organised to fit in with medical appointments. I note however, in 2006, she returned to a doctor closer to home. I make no comment about that.
74 I accept that the plaintiff has provided to the doctors a consistent history of her medical condition and her complaints. She was also frank, in that she told some doctors of her complaint of back ache prior to the accident.
75 I accept that the plaintiff may have exaggerated her inability to perform normal household duties to make sure that the Court had an appreciation of the difficulties she has encountered in performing her everyday life. I do, however, accept that her enjoyment of daily life has been compromised, in that she no longer can engage in her pre-injury activities. I also accept that her injuries to her right shoulder have interfered with her capacity to work. Prior to the motor vehicle accident she was an active participant, working six days a week in the chicken business.
76 I accept that the plaintiff occasionally became confused when being cross- examined. I put that down to the stress and strain of the trial. On balance, her English was good.
Submissions of Counsel for the Defendant
77 Counsel for the defendant referred me to the evidence of the plaintiff in respect of her capacity. He accepted that it was for me to determine whether her capacity is diminished. I refer to my findings above.
78 He raised the fact that the plaintiff referred in her affidavit to her competence in English, yet required the assistance of an interpreter. I accept that the plaintiff had the assistance of the interpreter at the commencement of the trial, even though much of her evidence was given without the interpreter’s assistance. No adverse finding can be made against the plaintiff for the statement made in her affidavit that “her English is limited and cannot understand technical terms or anything difficult in the case”. I am aware that Dr Krips said her English was good. The plaintiff’s English was good but there were times when the interpreter’s assistance was required. Further, this case is very important to the plaintiff; I can see every good reason why an interpreter would be required.
79 Counsel for the defendant submitted that, the plaintiff’s evidence that she had enjoyed good health other than the period in 2001 when she had the hernia operation and the gastroscopy, is far from the truth, given the evidence of Dr Krips regarding the number of medical attendances she made. The evidence was that she had fifty five attendances for the period 1991 to 2002. Without knowing the nature of the attendances, I would not accept that submission.
80 Counsel for the defendant referred to the evidence that the plaintiff gave that she no longer could sleep with her husband since the accident. However, Dr Krips gave evidence that the plaintiff told her on 31 October 2001 that she has had no sexual contact with her husband since the operation on her breast. A careful reading of the plaintiff’s affidavit states:
“Because I sleep restlessly, my husband could no longer sleep with me
and we have slept separately since shortly after the accident.”
81 That is a different interpretation to that being placed on the statement made in the affidavit. Accordingly, I will not take the matter further.
Back Injury
82 Counsel for the defendant submitted that the nature and extent of the consequent back injury, compared with the range of cases that come before the Court, could never be said to be a “serious injury”. He said that the plaintiff had complained of back injury in the past. He referred to the evidence of Dr Krips, in particular the complaints by the plaintiff of back injury in 2001, before the accident when she described her back pain as severe and said that she could not work. Whilst I accept that the plaintiff complained of back pain in 2001, I note that Dr Krips did not prescribe medication nor did she refer the plaintiff to any other health professional to investigate the back pain. I conclude that Dr Krips did not regard the complaints of back pain as “serious”.
83 It was submitted that the plaintiff must establish that the accident aggravated the back pain to the point of the consequences of the aggravation being a serious injury. It was counsel for the defendant’s submission that this could not be done, the plaintiff has to disentangle the pre-existing problem. Counsel referred to the CT scan of the lumbar spine that at each level from L1-L2, right through to L5-S1, the strong evidence was that the plaintiff’s back is a degenerative back and it could never be described as “serious”. He referred me to the evidence of Dr Krips, which was that the x-rays were consistent with her age and lifestyle. Accordingly, the plaintiff had not established that the aggravation amounted to a “serious injury” within the Act.
84 I accept that the test to be applied is “serious long-term impairment or loss of body function”.
85 It is clear that the medical reports obtained by the plaintiff support the fact that she did suffer an injury to the lumbar spine in the accident and that it was an aggravation of a pre-existing injury. I note that Dr Gouras, Mr Simm and Mr Hooper had reviewed the plaintiff on more than one occasion. What is interesting is that the more recent reports of Mr Simm in 2008, and Mr Hooper in 2009, expressed more concern about the plaintiff’s low-back injury than in their earlier reports. However, both doctors considered the plaintiff has an aggravated degenerative lumbar pathology but neither describes the extent of the aggravation. I must be satisfied that any aggravation must involve a serious long-term impairment of the body function. The impairment must, at the least, be “very considerable” and more than “significant” or “marked”. I am not so satisfied on the basis of the plaintiff’s own medical material.
86 The defendant’s medical evidence does not assist the plaintiff. Mr Shannon, in 2009, described the plaintiff’s degenerative changes as mild. In 2004, Mr Dooley considered the plaintiff had suffered a soft tissue injury to her axial skeleton, probably aggravating the pre-existing degenerative change, but there was no evidence of radiculopathy. This was similar to the findings of Dr Lefkovits in September 2002. All of the defendant’s doctors accepted that the plaintiff had a pre-existing injury to her lower back, which had probably been aggravated by the accident. None of them suggested that the consequences of the aggravation were “serious” or used words that I could infer amounted to “serious”.
87 Accordingly, I accept that the plaintiff has not established that she suffered a serious injury of the low-back.
Shoulder Injury
88 I accept that the plaintiff suffered a shoulder injury at the time of the accident. There was an oblique reference to a soft tissue injury on the right side in the nursing notes at the Knox Private Hospital on 31 March 2002. The plaintiff complained on 11 April 2002 to Dr Krips, and to Dr Gouras on 12 or 17 April 2002. The plaintiff had made no complaints of shoulder pain prior to the motor accident. Thereafter, the plaintiff consistently complained of right shoulder injury to doctors she consulted.
89 Whilst the plaintiff was seen by a number of doctors, it was Mr Tang, an orthopaedic surgeon, who reviewed the plaintiff in late 2004 and in early 2005, who identified the plaintiff’s problem in the right shoulder. He took the view that the plaintiff’s problem was a complete tear with the attachment of the infra-articular longhead of biceps. He said that the longhead of biceps tendon rarely requires surgery but because the plaintiff’s complaints had been ongoing for three years, she may require further management. Accordingly, he referred the plaintiff to Mr S Proper, an upper limb specialist, for further review.
90 Mr Proper found mild wasting around the plaintiff’s right shoulder and of her rotator cuff muscle generally. He stated she had bunching of the biceps muscle consistent with a longheaded biceps tear. He noted tenderness over the trapezius muscle. At that point he had decided to treat her conservatively but was to review her in six weeks’ time. By June 2005, Mr Proper was recommending surgery to the TAC. The TAC refused the request, relying on earlier findings expressed by Dr Lefkovits and Mr Dooley. Neither of those medical practitioners were upper limb specialists.
91 Further, neither Mr Dooley nor Mr Lefkovits has ever been asked to review the plaintiff nor to review the MRI scan of 2004. Accordingly, I consider their reports of little assistance to me.
92 Mr Shannon examined the plaintiff in 2009 but he did not have the MRI scan of the shoulder. Accordingly, his report is of limited assistance.
93 Counsel for the defendant submitted that in relation to the right shoulder, the plaintiff had consistently refused cortisone injections in the shoulder. The plaintiff had a duty to mitigate loss. She can properly refuse major surgery for fear of failure. There is no evidence that it would be inappropriate to infuse the shoulder with cortisone.
94 Initially I had some concern about the plaintiff’s reluctance to undertake the injections offered. However, she asked her doctors whether the injections would cure the shoulder and the doctors could not say that they would. Further, Mr Hooper, in 2002, said that he did not think her troubles were from the shoulder; rather, the cervical spine. By June 2005, the upper limb specialist was recommending surgery, which the TAC refused to fund based on out-of-date reports. There was no evidence that she would not undergo surgery. In fact she had undergone surgery in 2001. Accordingly, I do not accept the submission in respect of the failure of the plaintiff to undertake the injections.
95 I favour the views expressed by the doctors who saw the plaintiff over a period of time as they are in the best position to determine the consistency of the plaintiff’s complaints and the consequences of the injury to this particular plaintiff. In particular, the view of the upper limb specialist, Mr Proper, is most persuasive. He is the expert, having specialised in the upper limbs. He set out his findings on examination. I am satisfied that the description by Mr Proper in his report of March 2005 represents an appropriate analysis of the plaintiff’s condition at that time.
96 The medical reports of Mr Simm in 2008, and Mr Hooper in 2009, confirm restrictions in the right shoulder movements since previously examined. Both considered her injuries had stabilised. Mr Simm said she had no prospect of improvement in the foreseeable future. Mr Simm referred to the consequences of the injury in her daily life and both considered that she could return to work.
97 Her general practitioner, Dr Elshenawy, in 2009, described the limitation of movement of the right shoulder as severe and reported that the plaintiff’s husband assists her on a daily basis to dress. Further, over the past three years he reported a decline in her daily functioning and increase in her pain.
98 In a transport accident case I am entitled to take account of emotional consequences experienced by an injured person consequent upon physical injury when dealing with a claim for serious injury under paragraph (a) of s.93(17) of the definition “serious long-term impairment or loss of body function”. I accept that psychological factors are a consequence of the plaintiff’s shoulder injury. I refer to the comments made by Mr Simm in his report of August 2008 where he says “her pain focus was more evident than when I last examined her”.
99 I accept that the plaintiff returned to work when the chicken shop opened in mid January 2002. She was an active participant in that business. I rely upon the evidence of the plaintiff, her husband and their son. I accept that after the accident she did not return to her previous employment, and that the medical opinion supported her, in particular, Mr Simm and Mr Proper.
100 I am able to consider the removal of her work capacity as an indication as to whether the impairment from the shoulder injury can be characterised as a “serious long-term impairment or loss of body function”.
101 Considering the totality of the medical evidence, I am satisfied that the right shoulder injury has had consequences of some significance for the plaintiff. She has suffered a considerable restriction in a range of activities that she previously enjoyed, including her work, housework, caring for her family as opposed to being reliant on others to assist her in her daily life. In these circumstances, I am satisfied that she has suffered an injury, the consequences of which are both serious and long-term with respect to the right shoulder.
102 Accordingly, I am satisfied that the plaintiff has established she has suffered a “serious injury” with respect to the right shoulder.
103 I therefore propose to grant leave to the plaintiff pursuant to s.93(4)(d) of the Act to commence proceedings at common law.
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