Dinnie v TAC
[2024] VCC 1507
•2 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-00822
| John Dinnie | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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JUDGE: | CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 September 2024, 1 October 2024 | |
DATE OF JUDGMENT: | 2 October 2024 | |
CASE MAY BE CITED AS: | Dinnie v TAC | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1507 | |
EX TEMPORE
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – transport accident – injury to the right shoulder - exacerbation of pre-existing injuries to the right shoulder, lower back, right knee and left knee pain – whether consequences of aggravation of right shoulder injury meet the test – credibility of plaintiff - pain and suffering
Legislation Cited: Transport Accident Act 1986
Cases Cited:Peak Engineering v McKenzie [2023] VCC 1661; Petkovski v Galletti [1994] 1 VR 436; Dressing v Porter [2006] VSCA 216
Judgment: Plaintiff’s application is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Johnson | Arnold Thomas & Becker |
| For the Defendant | Mr S Smith KC with Mr S Pinkstone | Solicitors for the Transport Accident Commission |
HER HONOUR:
1The plaintiff, Mr Dinnie, seeks leave to pursue a claim for common law damages in respect of injuries he sustained in a motor vehicle accident on 9 December 2017. Mr Dinnie was a passenger in a vehicle when the driver lost control of the vehicle and ran off the road. He claims he has a serious long‑term impairment or loss of body function, being aggravation of an injury to his right shoulder. He seeks leave to issue proceedings for the recovery of damages at common law pursuant to s93(4)(d) of the Transport Accident Act 1986 (“The Act”).
2In order to be granted that leave, he must establish that the pain and suffering and loss of enjoyment of life consequences can be fairly described as at least very considerable and certainly more than significant or marked when compared with other cases in the range of possible impairments or losses. He makes no claim for pecuniary disadvantage. It is common ground that Mr Dinnie had a pre‑existing injury to his right shoulder, and also very significant injuries to his right knee and lower back.
3As a result of the motor vehicle accident, Mr Dinnie has experienced an exacerbation of pain in his right knee, lower back, and right shoulder, and he has also experienced pain in his left knee. He has an exacerbation of a pre‑existing psychiatric condition. However, he does not seek to rely on exacerbation to other body parts in this application. Therefore the issues in this case are:
4Whether the motor vehicle accident caused an aggravation of an injury to Mr Dinnie's right shoulder. This requires an analysis of the state of Mr Dinnie's right shoulder prior to and subsequent to the motor vehicle accident pursuant to the principles identified in Peak Engineering v McKenzie.[1]
[1][2023] VCC 1661
5What the consequences of any right shoulder injury are, having regard to Mr Dinnie's substantial prior medical history and subsequent motor vehicle accident. That is, what is the extent of any such aggravation pursuant to what Mr Smith described as “the cardinal principle” in Petkovski v Galletti;[2] and whether those consequences that can be attributed to the right shoulder injury meet the test of at least very considerable and more than significant or marked.
[2][1994] 1 VR 436
6This requires me to identify the compensable injury and the consequences of that compensable injury pursuant to the principles in Dressing v Porter.[3] The fact that more than one injury might impact on or cause a consequence does not mean, in and of itself, that the consequences do not or cannot meet the relevant test.
[3] [2006] VSCA 216
Background
7Mr Dinnie was born in 1966 and is now 58 years old. He completed Year 10 and trained to become a carpenter and joiner. He moved into security and welding work and worked in security until 1991 and then in welding until 1999. He suffered a work‑related injury and has not worked since 1999. He has four grandchildren and two grandchildren. He is separated and lives with his sister. He had a subsequent motor vehicle accident on 22 August 2022. In his affidavit, he says this caused a minor flare‑up of lower back pain and right shoulder pain, some whiplash, but with no lasting effects. He said his mental state worsened after this accident.
8He said that the effects of this flare‑up lasted a good month, and then it settled down to where it is now. That is at transcript 34. He attended his general practitioner on 29 August 2022, and his general practitioner notes an increase in Targin for the next week. Prior to this, he was on 15 milligrams, and this increased to 20 milligrams. On 21 September 2022, the Targin dose was lowered because of nausea, and ENDEP was added. And on 28 September, he again attended and was noted to still be in pain, worse in neck and shoulder.
9In October, he was noted to have aggravated pain since the motor vehicle accident, and he was again in worse pain, noted in January 2023. In response to the proposition that after the 2022 motor vehicle accident, his pain was permanently worse and his flare‑ups were worse as well, he said, 'Probably, saying so. Probably, saying so.' That is at transcript 51. It is difficult to understand Mr Dinnie's evidence about the impact of the 2022 motor vehicle accident, save that his assertion that he had worsening pain for about a month and then everything returned to the pre 2022 level was unreliable and the period of aggravation of pain lasted longer than that.
10Other than Mr Dinnie agreeing with the proposition that his permanent level of pain and flare‑ups increased, I cannot find support in the medical material for the proposition that the 2022 motor vehicle accident has necessarily caused permanent effects on his level of pain. Mr Dinnie's evidence was confused and contradictory, and I am not satisfied that it was reliable in this regard.
11The more likely position is that the 2022 motor vehicle accident caused an aggravation of his anxiety around car travel and has been a significant factor in his reduced driving. However, I am not otherwise persuaded that it has had a permanent impact on his pain levels.
Previous medical history
12He had a previous motor vehicle accident in 1982 in which he suffered a lower back and closed head injury and had about 12 months off work at that time. He had ongoing treatment but was eventually able to work without restriction and to resume paying football and golf. He continued to experience occasional low back pain from that injury.
13In 1999 in the course of his employment, he rolled his ankle and twisted his right knee. He had three surgical procedures on his right knee. Elsewhere, he refers to at least five, so I am not entirely sure of the number of surgical procedures, but for the purposes of this application, I do not think it is relevant.
14Since then, he has been in receipt of weekly compensation payments. An MRI of the right knee in 2007 was essentially normal. He experienced right knee pain of variable intensity and intermittent low back pain. He managed his condition by wearing a knee brace, ongoing physiotherapy, and using medication. He used a walking stick at times. He says he experienced some right shoulder pain. On one occasion in about 2000, he slipped using his walking stick and jolted his right shoulder. He had flare‑ups of shoulder pain that required treatment. He says, however, that eventually the pain would go away.
15He said Dr Tan told him it was all just wear and tear of the shoulder because he had played a lot of football when he was younger. MRI from 2008 shows a grade 1 spondylolisthesis of L5-S1. He had a CT guided L5 nerve root sheath injection in February 2008. In 2010, he attended his GP with worsening right shoulder pain for no obvious reason. He had a right shoulder X-ray and ultrasound in July 2010, which showed a small partial thickness tear of the right supraspinatus tendon and thickening of the overlying bursa compatible with bursitis.
16His general practitioner, Dr Tan, prescribed a course of prednisolone, but the pain returned and he had an ultrasound guided cortisone injection in the right shoulder in August 2010. In October 2010, he saw Dr Shakar who noticed that the right shoulder was playing up, and that he was not sleeping and felt drained. In February 2011, Dr Tan noted that he had a constant painful shoulder and neck, that his sleep was disturbed, and that he was unsettled.
17Dr Tan noted in June 2011 that he still had a painful right shoulder that was able to settle with MS Contin, but that 10 milligrams did not provide long‑lasting pain relief and he, Dr Tan, then prescribed 15 milligrams of MS Contin. On 4 November 2011, Dr Tan noted a painful right shoulder that was possibly injured trying to accommodate a knee injury causing a torn rotator cuff and tendinosis. In November 2011, Dr Tan reported ++ pain right knee and right shoulder and noted that Mr Dinnie attributed that to previous use of walking stick.
18On 9 February 2012, Dr Tan noted that Mr Dinnie was, in terms of his mental health, feeling better on Lexapro, but was still down because of pain in his shoulder and foot. In cross‑examination, Mr Dinnie did not think that his shoulder was causing him problems with his mental health. In 2013, his general practitioner's notes record a fall onto his right shoulder in the context of an assault. In November 2013, his general practitioner records pain in right shoulder that was keeping him awake, and there was a trial of prednisolone at that time. And in December 2013, Mr Dinnie's right shoulder pain was noted to be ++ since reducing prednisolone.
19In March 2014, he was noted to be in continuing pain, ++ in the right shoulder, and he was continued with Percocet, and his general practitioner noted that he would add Celebrex. On 10 June 2014, the pain in Mr Dinnie's neck and shoulders was noted by his general practitioner to be eight out of 10. This prompted a referral on 8 July 2014 to Dr Hooper for orthopaedic surgical assessment on the right shoulder and other body parts, and Dr Hooper, at that time, diagnosed a cuff tear in the shoulder causing trouble and tendinopathy of the right shoulder, and attributed Mr Dinnie's incapacity to work to a combination of back, shoulder, and knee injuries.
20There are further general practitioner attendances in October 2014, December 2014, April 2015, and September 2015, where Mr Dinnie has attended complaining of right shoulder pain. In September 2016, Mr Dinnie was back at his general practitioner with a painful right shoulder and was noted to have difficulty with abduction and elevation.
21In October 2016, Mr Dinnie attended for a rehabilitation assessment with AMS. That report has recorded that Mr Dinnie told them that he had sustained a tear to his shoulder after a fall that had not been surgically repaired. In that report, his physical tolerance is noted to be that he can lift two to three kilograms of weight between his waist and shoulder with his left arm only.
22Mr Dinnie, in his evidence in this case, disputed that he had said this. He said that he could lift with his right arm before the accident, that he did not know where that had come from and expressed his confusion about why that had been reported. He said that he had seen a lot of doctors, had a lot of medication, had been in a lot of pain, and had substantial mental health issues. He accepted that his memory and concentration was very affected, and, at transcript 84, said that although he could not remember this, 'If I've said it, I've said it.'
23That report also notes that reaching overhead is possible only with his left arm, and that he had limited forward and below waist movements with his right arm. He agreed that he would not have lied to the people who were preparing that report.
24His shoulder condition was clearly significant enough to warrant investigation in 2010, and again in January and February 2017. He accepted that the investigations in 2017 had occurred because he had persistent ongoing and significant problems, in his right shoulder for about seven years: that is at transcript 86.
25An ultrasound and an X‑ray of the right shoulder in February 2017 showed a partial thickness chronic articular surface tear of the subscapularis tendon; mild supraspinatus tendinosis with no tear; and mild bursitis, showing impingement during abduction. I think it is common ground that the reporting of no tear is in error.
26In relation to his assessment by Dr Slesenger in September 2017, he said that what was recorded as his range of movement was an accurate picture of how he was able to move his arm - and that is at transcript 88 - but he reiterated that he thought that after the car accident, there was a bigger tear, and that his shoulder was worse: at transcript 89. He agreed that there was a disability before the motor vehicle accident.
His pre-existing psychiatric condition
27He has a pre-existing psychiatric injury, caused by his work injury. He has had long-term treatment with at least one counsellor and has had psychiatric treatment and two inpatient admissions. He says his psychiatric condition improved prior to the motor vehicle accident, such that he was able to manage under the care of his GP and with medication. He also had increased mental health problems in the context of a relationship breakdown, and managed this with his general practitioner and medication, including Valium.
Medical treatment after the motor vehicle accident
28He attended hospital, and on discharge was noted to have tenderness over his shoulder and knees. He was prescribed Endone by his general practitioner. A CT scan on 9 December 2017 showed a right ninth rib fracture, minimally displaced fracture of the left scapula, and mild degenerative change in the lumbar spine. By January 2018 he was recommended to reduce Endone, and he says it was at this time that he noticed an increase in pain in his right shoulder, left knee, and lower back. He attended his general practitioner with complaints of bilateral knee pain and lower back pain.
29In March 2018, Dr Fiser notes that he was improving well, not needing any extra medication, and so was back on his usual meds. In oral evidence, Mr Dinnie disagreed with that assessment, but did not remember what additional medication he was taking at that time. He says he attended his general practitioner for prescription of oxycodone and Targin. He had pain and restriction in his lower back, right shoulder, and both knees: this is from his first affidavit.
30In December 2018 he was referred for orthopaedic assessment to Dr Raymond Crowe, and Dr Crowe referred him for scans. He had a MRI of the right shoulder on 15 March 2019, which showed degenerative change to the acromioclavicular joint, a full thickness tear of the supraspinatus tendon, a tear of the subscapularis tendon, biceps tendinosis.
31Dr Crowe says imaging prior to the motor vehicle accident shows a partial tear of the subscapularis but not the supraspinatus, and the full thickness tear of the supraspinatus appears to be, in Dr Crowe's view, a new injury. It is, as I have already said, common ground that there was, in fact, a partial tear in the supraspinatus tendon prior to the motor vehicle accident, but the new injury is the full thickness tear.
32In March 2019, Dr Crowe noted a full thickness tear of the supraspinatus tendon, partial tear of the subscapularis tendon, limited movement in the right shoulder, and recommended rotator cuff repair surgery. The TAC did not accept liability for the shoulder injury, and that did not proceed at that time. Mr Dinnie says he is now not interested in surgery, due to the risk of worsening of the condition in his right shoulder.
33In November 2023, he had a further ultrasound of the right shoulder, which confirmed the full thickness tear of the supraspinatus tendon. And on 29 November 2023 and 21 December 2023, he had ultrasound guided cortisone injections.
Medico-legal reports
34I turn now to look at the medico-legal reports. He saw Dr David Vivan, a musculoskeletal physician, on 9 August 2018. Dr Vivian has recorded Mr Dinnie's history in relation to his injuries after the motor vehicle accident as follows:
On 9/12/2017 he was a front seat passenger in a car that went over the edge and ran down the cliff about 150 metres. His seat belt broke and he was thrown out. He suffered various injuries. These included a fractured right rib, a scapular fracture, and contusions and injuries to the right more than the left shoulder and the left knee. The knee brace he had been using for chronic right knee pain broke in the accident.
He considers that since this accident, his disability has been worse. He said the worst pains now that he gets now are, in order, the right knee, the left knee, the right hip, the low back, and the right shoulder. The left knee can nearly be as bad as the right knee now. He has a brace on both knees. The low back has increased by a factor of about 10 since the motor vehicle accident. It is central and right-sided. The right hip pain persists. He cannot elevate the shoulder much. He says he has been diagnosed as having a tear of the rotator cuff.
35Dr Vivian diagnosed signs and symptoms consistent with chronic regional pain syndrome in the right knee. He noted that it was hard to determine whether the hip and low back pain present prior to the motor vehicle accident relate to an extension of the chronic regional pain syndrome or are specific injuries.
36Prior to the motor vehicle accident, there might have been some work capacity, but after the motor vehicle accident, Dr Vivian's view was that that work capacity had deteriorated significantly, because Mr Dinnie now had problems with his other knee and right shoulder and more back pain. He noted that the knee condition from 1999 continues and is partly a cause of his loss of work capacity.
37Dr Vivian recorded that Mr Dinnie's capacity for walking reduced from about 200 metres pre motor vehicle accident to 90 metres post motor vehicle accident. At the time of Dr Vivian's assessment, Mr Dinnie had not yet had the March 2019 MRI that identified the full thickness tear of the supraspinatus tendon.
38Although Mr Dinnie did not recall being told that he had a tear to the rotator cuff prior to the March 2019 MRI, it seems unlikely that his general practitioner kept him in the dark about the results of his investigations, and the partial thickness tear to the supraspinatus and subscapularis tendons were both noted prior to 2019.
39He said Dr Tan had told him that it was just wear and tear to the shoulder. I think it is more likely that Mr Dinnie either had not understand that the 'wear and tear' Dr Tan referred to meant a literal tear, or he has subsequently forgotten that he has been told about those tears.
40Dr Vivian said that Mr Dinnie told him he had been diagnosed with a rotator cuff tear, which supports a finding that this was reported to him by Mr Dinnie, rather than being something Dr Vivian obtained from a review of medical records.
41Mr Dinnie disputes that he prioritised his pain in the order recorded by Dr Vivian. He says that while he may have told Dr Vivian that they were the pains he was getting, he would not have put them in any particular order. However, Dr Vivian records that order very deliberately, and it seems unlikely that Dr Vivian would simply have made up his own order or would have recorded a cascading list of symptoms without asking for the patient's input.
42Dr Vivian then goes on to deal with the symptoms Mr Dinnie complains of in that same order: first knee, then hip, then low back, and leg. In response to specific questions Dr Vivian was asked, he also deals with the diagnosis in order of knee, hip, and low back. He does not make any diagnosis of the right shoulder.
43In his answer in relation to treatment, he again deals with knee and hip, and does not make any recommendations for back or shoulder treatment. It is only when asked about Mr Dinnie's activities of daily living and work capacity that Dr Vivian mentions the right shoulder, which tends to support a finding that at the time of his consultation with Dr Vivian, the right shoulder was not Mr Dinnie's predominant concern.
44Dr William Lugg, psychiatrist, 10 July 2024, has noted a prior psychiatric history, including two suicide attempts and a diagnosis of depression by the medical panel in 2005, and that he was being treated with MS Contin and Seroquel, and he diagnosed a persistent depressive disorder and persistent response trauma with post-traumatic stress disorder like symptoms.
45Gary Grossbard, orthopaedic surgeon, 20 January 2021: he opined that the right shoulder pathology was significantly aggravated by the motor vehicle accident and considered that the left knee injury relates entirely to the motor vehicle accident. He noted an increase in symptoms from the right knee and lumbar issues, which already caused him to not be able to work.
46Anthony Kam, consultant radiologist, on 26 August 2024, noted:
Pre-existing supraspinatus tendon partial thickness tear, shown on ultrasound images in July 2010. An ultrasound of February 2017 shows partial thickness subscapularis tendon tear with impingement of subacromial bursa. And a 15 March 2019 MRI shows degenerative change, right acromioclavicular joint; rotator cuff tear traverses full thickness of the tendon; MRI shows subscapularis partially torn, resulting in displacement of long head of biceps tendon. And an ultrasound on 23 November 2023 shows a full thickness tear of the supraspinatus tendon and tendinosis of the long head of biceps tendon with synovitis.
47In Dr Kam's view, it is clear that the supraspinatus tendon is longstanding, and predates the subject accident, and noted that it was:
... difficult and unreliable to compare across different imaging modalities. A comparison of the July 2010 ultrasound and the 15 March 2019 MRI suggests extension of rotator cuff tendon tearing to involve subscapularis following the accident, but a comparison of the ultrasound on 23 November 2023 suggests the tear remains limited to the supraspinatus tendon. This inconsistency highlights the unreliability of comparing the ultrasound with the MRI. Ultrasound is dynamic and dependent on the skill of the operator, and retrospective review is potentially misleading.
48Dr Kam noted that rotator cuff tears left untreated may progress with time, but considered it was more likely than not that the pre-existing right shoulder condition was aggravated by the subject accident, and that the accident more likely than not caused a progression of the partial thickness supraspinatus tear to a full thickness tear. He was not convinced that the motor vehicle accident caused disruption of the subscapularis tendon, which allowed medial subluxation of the right long head of biceps and does not believe that the accident caused the degenerative change seen.
49In relation to other imaging, he noted that there was some muscle oedema in the left knee that he did not consider to be related to the motor vehicle accident; and of the right knee and lower spine, he did not consider that the imaging indicated any changes caused by the motor vehicle accident.
50Dr Gregor Schutz, psychiatrist: in a report dated 19 July 2024, he diagnosed a chronic unspecified depressive disorder. He considered that the psychiatric condition was most substantially pre-existing and considered that the pre-existing chronic depression and chronic pain were highly unlikely to have resolved. He noted that if Mr Dinnie has an exacerbation of his chronic pain from the motor vehicle accident, then it was reasonable to conclude that there has been a minor exacerbation of his mood disorder secondary to the motor vehicle accident.
51He considered there was no change in Mr Dinnie's overall prognosis, and no change in his functioning, from prior to the accident, and that Mr Dinnie's prognosis generally was unfavourable. He did not consider that a minor aggravation to the psychiatric condition as a result of the motor vehicle accident had any impact on Mr Dinnie's employability, domestic or leisure activities.
52Mr Anthony Menz, orthopaedic surgeon, prepared reports dated 7 March 2020 and 3 July 2024. In the 2022 report, Mr Menz noted a very limited range of movement in the right shoulder, with 80 degrees of abduction, 90 degrees flexion, 10 degrees internal rotation, 90 degrees external rotation, and 40 degrees of extension. In 2024, those measurements were 60 degrees of abduction, 80 degrees of flexion, 20 degrees internal rotation, 70 degrees of external rotation, and 10 degrees of extension. He noted that Mr Dinnie was worse in all planes of movement except for internal rotation.
53Mr Menz noted that Mr Dinnie had right shoulder problems dating back to 2010, and a poor range of movement for many years predating the accident, and that he had a pre-existing rotator cuff tear and a significant history of shoulder pain and symptoms.
54In Mr Menz's opinion, the rotator cuff tear was purely constitutional, and not related to the motor vehicle accident. He noted that Mr Dinnie had a prior very poor range of movement, likely caused by chronic degenerative tearing of the rotator cuff, and that he had a long history of abnormal illness behaviour, with probably unconscious signs of exaggeration.
Credibility
55I turn now to deal with the issue of credibility. Mr Dinnie relies on two affidavits, dated 29 November 2023 and 13 September 2024. Mr Dinnie gave his evidence in a straightforward way. There was no attempt to dissemble or to be evasive, and I have no difficulty accepting that Mr Dinnie was an honest witness.
56However, due to the very significant length of time with which Mr Dinnie has suffered incapacitating injuries, the very many medico-legal and medical appointments he has attended, the significant level of pain and medication, and his own evidence about his memory difficulties, his evidence was not always reliable. In particular, it was difficult for him to remember what he had said to various doctors at various times, and it was difficult for him to remember with any specificity the particular levels of pain and restriction he had experienced at different times.
57Though he was clear that after the motor vehicle accident, his pain levels overall, and particularly the pain in his right shoulder, increased, it was difficult for him to clearly identify the before and after picture. For example, he described his pain in his right shoulder prior to the motor vehicle accident as 'niggling pain', although the medical records indicate a much more severe pain, requiring, at least on occasion, prescription of MS Contin. I am not critical of Mr Dinnie in this regard, but it does render the evidence that he gave somewhat unreliable, and I deal with this unreliability in greater detail in relation to the consequences of the injury.
Did the motor vehicle accident cause Mr Dinnie a right shoulder injury?
58There are competing opinions about this question. In one corner, Dr Menz who considers Mr Dinnie sustained no shoulder injury at all in the motor vehicle accident, and he bases this on the fact that there was no immediate report of right shoulder pain, that the right shoulder pain came on some time after the motor vehicle accident, that Mr Dinnie has a long history of pre‑existing pain and restrictions in the right shoulder, and he says that the symptoms and restrictions Mr Dinnie experienced in his right shoulder predated the accident, notwithstanding the new finding post-accident of a full thickness supraspinatus tear.
59As I understand it, Dr Menz's view is that Mr Dinnie's shoulder was already so restricted that the additional tear has not caused any consequences for Mr Dinnie, and further, he considers that the timing of the shoulder injury is not consistent with it having been caused by the motor vehicle accident. He considers that the natural history of degeneration 'just gradually got worse' and the accident did not aggravate the pre‑existing pathology and did not make it worse. Further, Dr Menz considers that Mr Dinnie displays illness behaviour and to be perhaps unconsciously exaggerating his symptoms.
60In the other corner is Dr Grossbard who considers the motor vehicle accident caused a significant aggravation of Mr Dinnie's right shoulder symptoms, and Dr Kam, who considers, on the balance of probabilities, that the accident caused a progression of a partial supraspinatus tear to a full thickness tear.
61The defendant submits that from about 2000 when Mr Dinnie had a jolt to his shoulder, he had right shoulder pain and problems, and from about 2010, he had a worsening of those pain and problems, and an ultrasound showed a partial thickness tear of the supraspinatus at that time. He had prednisolone and ultrasound guided cortisone injections which did not resolve his problem, and the defendant submits that this shows a picture of worsening right shoulder pain from 2010 that continued until the motor vehicle accident.
62The defendant submits that the fact that he needed MS Contin in 2011 for his shoulder suggests that the pain was, at least at times, very severe. The radiology shows a partial thickness tear of the supraspinatus tear in 2010, and a full thickness tear of the supraspinatus tear in 2019. It is possible that the full thickness tear was a consequence of a natural degenerative process, as Dr Menz opines, or that it was a consequence of the motor vehicle accident.
63Although there is a question over the causation of the full thickness tear of the supraspinatus tendon, I accept, on the balance of probabilities, that it was likely caused or contributed to by the motor vehicle accident, given the opinions of Dr Kam and Mr Grossbard, and Mr Dinnie's treating doctor, Dr Raymond Crowe, albeit that it is not clear whether Dr Crowe is aware of the pre‑existing partial thickness tear to the supraspinatus tendon.
64Mr Grossbard's comments that pre‑injury scan shows the supraspinatus as essentially intact. It is not clear whether he has seen the 2010 ultrasound report which shows a small partial thickness tear or whether he is relying on the February 2017 ultrasound which is reported as showing no tear in the supraspinatus. Mr Grossbard also notes that the impact of the motor vehicle accident was sufficient to fracture Mr Dinnie's left scapula, which supports Mr Grossbard's conclusion that the motor vehicle accident made a material contribution to the aggravation of Mr Dinnie's supraspinatus tear.
65Dr Kam's careful analysis of the imaging and his explanation as to the challenges of comparing different imaging methods is helpful in explaining why, notwithstanding the ultrasound report of February 2017, Mr Dinnie had a partial thickness tear of the supraspinatus tendon from 2010. Given that the supraspinatus tear was not detected on the ultrasound in February 2017, I accept that it is likely on the balance of probabilities the tear had remained partial. One would expect that even an inexpert ultra sonographer would be likely to detect a full thickness tear of the supraspinatus tendon.
66Although it is possible that natural degenerative changes had caused a small partial tear to become a full thickness tear by 2019, it is more likely on the balance of probabilities that it was a traumatic event, such as the motor vehicle accident that precipitated this injury, given the onset of the additional and different pain experienced by Mr Dinnie occurring within months of the motor vehicle accident. It is not possible to say whether the motor vehicle accident itself took the tear from partial to full, or whether it exacerbated the tear which then became a full tear over the subsequent months after the motor vehicle accident until the MRI in March 2019.
67Nevertheless, I am satisfied that the motor vehicle accident caused an aggravation to the right shoulder injury, being an aggravation of the underlying supraspinatus tear. Given my conclusion that the motor vehicle accident did cause an aggravation to the supraspinatus tendon, I am satisfied that Mr Dinnie sustained a right shoulder injury in the motor vehicle accident.
68I turn now to consider the consequences of that aggravation of his pre‑existing right shoulder injury. In doing so, I must be satisfied that the consequences caused by the aggravation of the right shoulder injury have been disentangled from the consequences caused by other pre‑existing injuries to the knee and lower back, and that the consequences of the aggravation of the right shoulder can be delineated from the consequences of the pre‑existing right shoulder injury.
Pain in relation to the non‑shoulder claims
69The plaintiff says that he has ongoing and increased pain in both knees, his lower back, his right shoulder, and that the right shoulder now is the predominant pain. Since the motor vehicle accident, he has had increased lower back pain. He says he has good days and bad days with his back.
70His right knee and his right ankle are the injuries that meant that he was unable to continue to work, but he says he could still get around by relying on his left knee, but that now, his left knee has a dull ache and a sharp, burning pain which further restricts his mobility. He described to Dr Vivian that prior to the motor vehicle accident, he had had about five knee operations and remained disabled with right knee pain. Subsequent to the knee injury, he developed hip pain, and on Dr Vivian's report, a mild right sided low back pain which has also caused problems over the years.
71In August 2018, he described his knee pain to Dr Vivian as being 'like a rusty bolt being driven into the knee when he walks and goes up and downstairs' and said that his capacity for walking had reduced since the motor vehicle accident. He said he was also, since the motor vehicle accident, getting occasional pins and needles in his left calf, that he could not walk as far because of that, and he described to Dr Vivian more pain down the right leg posteriorly and reaching to the outer right calf, and on occasion, reaching to the toes.
72He described to Dr Vivian right hip pain when he walked or moved his legs. None of these consequences are relevant to the test I must undertake in relation to deciding whether the right shoulder aggravation meets the test. However, they are consequences that are relevant to determine Mr Dinnie's pre‑motor vehicle accident functioning for the purposes of comparison. It is evident that Mr Dinnie was in and continues to be in significant pain from sources other than his right shoulder, and in this regard, he accepted that after the motor vehicle accident, the pain in his knee and back continued to be about eight or nine out of 10.
Headaches
73Mr Dinnie says he gets headaches about three or four times a week that vary in intensity, and that he believes are caused by his shoulder. He agreed that he had a long history of headaches but said that he used to get them about once or twice a week, and therefore, there has been an increase since the motor vehicle accident. It is not clear to me that the increase in headaches is attributable to an aggravation of his right shoulder injury.
74While it may be that there is a causal relationship, there is a lack of medical evidence that establishes this link, and I was unable to find any supportive medical evidence about this link. If the one to two headaches that he got prior to the motor vehicle accident were caused by his back pain, as has been attributed in at least in some of the reports, it is possible that the aggravation of his back pain after the motor vehicle accident has also caused an increased rate of headache. Ultimately, I am unable to determine this, but I am not satisfied that the increase in headaches can be attributed to the right shoulder injury.
Right shoulder pain
75Mr Dinnie said that prior to the motor vehicle accident, his right shoulder always ached, but it was a pain that went away and did not last forever. He says he now has daily pain, and an ache in his right shoulder that can increase to a sharp pain that extends from his shoulder into his elbow and up to his neck, causing headaches.
76He says he struggles to lift above shoulder height without pain, and he says that before the motor vehicle accident, he could lift his arm over shoulder height, though it would be painful if he had to hold it there while lifting something. He claims that his limited ability to lift, push, pull and carry items, particularly above shoulder height and away from the body, are consequences of the motor vehicle accident. And he said the he could do this before the motor vehicle accident.
77However, in the AMS report of October 2016, it is reported that he could lift two to three kilograms between waist and shoulder height only with his left arm, and that he could carry two to three kilograms between waist and shoulder height only with his left arm; that he could reach overhead only with his left arm; and that he could reach forward in a limited fashion with his right arm and had a limited capacity to reach below the waist with his right arm. He reported that he could not shop using a heavy trolley, and he reported disturbed sleep.
78Dr Slesenger examined him in September 2017 - and reported that Mr Dinnie had fallen on at least two occasions due to his right knee giving way. Dr Slesenger conducted a clinical examination and reported the following: global tenderness of the right arm and shoulder; flexion to 40 degrees, extension 20 degrees, internal rotation 30 degrees, external rotation zero degrees, abduction 40 degrees.
79I take from this that Mr Dinnie was reporting to others, in the months immediately preceding the motor vehicle accident, that he had very significant restrictions in his right arm. While in his evidence Mr Dinnie was confident that he could lift his arm above shoulder height, and lift weights, prior to the motor vehicle accident, and that he had a greater range of motion than Dr Slesenger reports, I am not able to accept his evidence as reliable in this regard. There is no reason why Dr Slesenger and the AMS report would have reported those significant limitations in his right shoulder if Mr Dinnie had not reported those limitations prior to the motor vehicle accident.
80Mr Dinnie said he was confused as to why those reports, which predate the motor vehicle accident, would have recorded those restrictions, and appeared to be somewhat unsure as to the level of his restriction prior to the motor vehicle accident.
81The plaintiff criticises the defendant's reliance on the reports of Dr Slesenger and AMS, as in both of those reports, the conclusion was that the plaintiff had no impairment, and was fit for work. However, the conclusions those reports reached regarding Mr Dinnie's work capacity are not what the defendant relies on; nor are they relevant to my assessment. I am interested in them only to the extent that they record Mr Dinnie's reported level of function at the time of the assessment, which he accepted, in cross-examination, was accurate.
82Although I accept that Mr Dinnie genuinely believes that his right shoulder condition is more restricted, and more painful, since the motor vehicle accident, I am not persuaded, on the evidence, that his assessment about this is accurate. Having reviewed the medical records in detail, I accept the defendant's submission that Mr Dinnie's recollection of the degree of pain and impairment to his right shoulder prior to the motor vehicle accident is inaccurate, and that that pain and impairment amounted to something substantially more than occasional niggles.
83In particular, I note the need for strong medication which, at least from time to time, was specifically prescribed for his right shoulder pain: see for example the general practitioner notes from November 2013 and March 2014. I note as well that he had had a number of ultrasound guided steroid injections prior to the motor vehicle accident, which would not be warranted for minor 'niggly' type pain that went away.
84In 2014, he was referred to Dr Hooper for assessment for a number of injuries, including his right shoulder, and was diagnosed with a rotator cuff tear and tendinopathy. Dr Hooper formed the view at that time that the right shoulder injury, in combination with back and knee injuries, rendered him incapable of work. The right shoulder injury was not reported as being something that was intermittent or minor.
85I am satisfied that Mr Dinnie had a significant symptomatic shoulder injury, prior to the motor vehicle accident, which caused a significant degree of pain and a significant reduction in movement.
86That is not to say that Mr Dinnie has remained in the same amount of pain since his motor vehicle accident. I am satisfied that he has a new sort of pain than he previously experienced, which appears to derive from a feeling of greater instability, and what he describes as a feeling that his arm might come out of its socket. This is consistent with a partial tear becoming a full thickness tear of the supraspinatus tendon.
87However, it is difficult to determine the degree of additional pain, given that I do not accept his evidence about his pain prior to the motor vehicle accident is reliable. Doing the best I can, I find that Mr Dinnie has had a modest increase in his right shoulder pain. I am not satisfied that the aggravation to his right shoulder has resulted in any significant further restriction in movement, given the already significant restriction that existed prior to the motor vehicle accident.
Other consequences - housework
88Mr Dinnie says he struggles to do housework, and that he struggled prior to the motor vehicle accident, but that it is worse since. In his first affidavit, he said that prior to the motor vehicle accident, he could do small bursts of activities like vacuuming, but since then, even small bursts cause a substantial increase in pain in his shoulder and low back. In his second affidavit, he says he is now reliant on his sister for housework, when previously he could vacuum and change the sheets.
89He described 'a small burst' in his oral evidence as perhaps being able to vacuum the living area of his sister's house once up and once down, and that he would then need to have a break and sit down and rest. He said he would be able to do about five minutes of washing before needing a break. He said he now cannot do those things at all, and he says this is because of his shoulder. I note that he told Dr Grossbard in 2021 that he was able to do dishes for 10‑minute spells and vacuum, mainly using the left hand.
90This leaves open the possibility that his subsequent inability to do even this amount of housework is a consequence not of the 2017 motor vehicle accident but of the 2022 motor vehicle accident. The inconsistency of his evidence about what he could and could not do demonstrate again the unreliability of his evidence about the consequences, due to his memory difficulties and the passage of time.
91I could not find a reference to his being able to change the bedsheets prior to 2017, and given the nature of this task, it seems unlikely to me that he could have done this with his pre-existing shoulder and low back injury, involving as it does bending down to lift a corner of a mattress, which would be inconsistent with his back pain and lifting capacity.
92This is not something I ultimately have to determine, because on further questioning, he said that although his right shoulder caused him difficulty, for example, with holding and manoeuvring the vacuum, his back pain made it difficult to bend down, empty the vacuum, and to stand and walk with the vacuum.
93Similarly, doing the dishwashing, it was apparent that the real difficulty with that task is standing at the sink, and his capacity to stand has worsened since the motor vehicle accident, due to aggravation of his knee and back pain. I am not satisfied, therefore, that it is an aggravation to the right shoulder, as opposed to the aggravation to his low back or knee, that has caused his inability to undertake housework.
Sleep
94He acknowledges a past longstanding difficulty with sleep, but says his right shoulder is the predominant problem now. He says he now wakes with back and knee pain, but it is mostly his shoulder that wakes him. However, in cross-examination, it was difficult to understand exactly how he articulated what woke him and kept him awake.
95He said it was difficult to find a comfortable position to go to sleep in because of his shoulder. He would wake around 3 am with shoulder, back and knee pain. He said that sometimes one pain would override the other: I take this to mean, sometimes one pain would be predominant. He attributed his right shoulder pain as the cause of most of his nightly wakings but said that when he would get up to walk around, it would be his lower back pain that was the worst.
96Ultimately, he agreed that while it was his right shoulder pain that mostly woke him now, he was woken the same amount prior to the motor vehicle accident because of his right knee and back pain. I take this to mean that he is still woken about the same amount, but the predominant pain is now his right shoulder, not his low back or knee.
97There is no suggestion in any of the medical evidence, or in Mr Dinnie's evidence, that the low back or knee pain have improved since the motor vehicle accident. Indeed, the evidence is to the contrary, that the low back and knee pain have worsened.
98I accept Mr Dinnie's evidence that it is now predominantly his right shoulder that causes him to wake. I consider his evidence about his previous sleep to be unreliable, given the medical records and reports which demonstrate the ongoing and chronic nature of his sleep difficulties. Nevertheless, as a result of the aggravation of his right shoulder, and in particular the difficulty he describes in finding a comfortable position to get to sleep, and the problems he has with his shoulder dragging behind when he moves position during sleep, I accept that the right shoulder injury has had some impact on his sleep.
99It is not apparent to me, though, that Mr Dinnie's overall quality or quantity of sleep has been affected in a significant way by the motor vehicle accident, given the evidence about his longstanding problems with sleep prior to that accident. Even though he might be now aware of his right shoulder as the cause of waking him up, I am not satisfied, on the evidence, that the overall impact on the amount or quality of his sleep has substantially changed as a result of the right shoulder injury.
Driving
100Mr Dinnie says that following the motor vehicle accident, he did not drive a car for a period, and that resting his arm on the steering wheel was difficult, and sitting in the car for long periods caused him lower back pain. He acknowledged that anxiety following the 2022 car accident also contributed to his difficulties with driving, and he agreed, in cross-examination, that between 2017 and 2022, he was driving the car.
101In 2018, he reported to Dr Vivian that he was driving around Frankston and could drive from Frankston to Berwick as long as the traffic flow was minimal, as he could not cope with a lot of traffic. He said, in transcript 36, that there were periods of time when he would drive, and that after the 2022 accident, his anxiety became worse. He said that because of his previous experiences with car accidents, he became scared of getting into a car.
102A telephone consultation with his general practitioner on 21 September 2022, after the 2022 motor vehicle accident, notes:
Distressed +++. Can't get into car. Anxious. Teary. Discussed normality of it, as has been in two accidents, both of them significant. Has to do police report, but unable to get in car. Asked him to describe and write what happened while still fresh in memory. Hurts between shoulder blade. Self-extricated from accident. Was okay for two days, then bad after that.
103In July 2023, Dr Tan noted that Mr Dinnie was still 'anxious ++ re getting into car since MVA'. This supports a conclusion that he has had a psychiatric reaction that does not, on my assessment, arise from his shoulder injury, in relation to driving. He has resumed driving in December 2023, on recommendation of his treaters, and he drives short distances.
104He says the seat belt causes him discomfort on his right shoulder when he drives, which I accept. However, I find that his capacity for driving is limited predominantly by his lower back pain and anxiety, and he brings this claim only for his shoulder injury.
105His anxiety and psychiatric injury is relevant to the extent that it arises from the shoulder injury in a Richards v Wylie sense, but the anxiety that he experiences from driving appears to arise from the car accidents themselves - particularly, it seems, the 2022 motor vehicle accident - and not from an increased anxiety or depression arising from pain caused by the right shoulder. I am not satisfied that his inability to drive is a consequence that can be attributed to his right shoulder injury.
Fishing
106Mr Dinnie says he used to like to fish. In his first affidavit, he says how he got out about once a month to fish. In his second affidavit, he says, in the warmer months, he went out every one to two weeks. In his oral evidence, he said that his brother would pick him up once a month, and they would go and sit on the pier. It is hard to assess exactly how often he fished before his accident, given this evidence. However, he does not now fish at all, and I am satisfied that this is a consequence that arises from an aggravation of his right shoulder injury.
Social activities and interaction with his family
107He says he is now, since the motor vehicle accident, more isolated. He does not see his nieces and nephews as much, as he used to go fishing with them. He says he is more grumpy and short-tempered, although he acknowledges that he was grumpy and short-tempered because of pain prior to the motor vehicle accident.
108He resumed a relationship with his children in late 2018 or early 2019, after a long period of having no contact with them following the breakdown of his relationship with his ex-partner. To that extent, his family contact has increased since the motor vehicle accident, although not as a result of the motor vehicle accident.
109I am not persuaded that his right shoulder pain in particular is the thing that has caused a reduction, to the extent that there has been a reduction, in his social activities. I note the histories given to various doctors prior to the motor vehicle accident about the significant limitations on his social activities.
110Aside from the loss of fishing and the incidental socialisation that accompanied that - for example, seeing his niece and nephews on occasions when he went fishing - I am not satisfied that he has demonstrated that the aggravation to his right shoulder is the cause of a reduction in any of his social activities. Prior to his motor vehicle accident, he had already reported to a number of doctors his very limited social life and limited hobbies and activities.
Activities of daily living
111He reports difficulties with bathing and showering, and says it is harder to get dressed, put his socks and shoes on, and it is more difficult to undertake activities overhead. He says he sometimes cannot dry himself, and relies on his sister to help him, which he finds embarrassing and uncomfortable. I note that both Dr Grossbard and Dr Schutz reported that he was able to dress and toilet himself but had difficulty putting on socks.
112I accept that an aggravation to the right shoulder would likely have a modest impact on some aspects of bathing, such as reaching overhead to wash hair and dress, and I accept that his aggravation of his right shoulder injury may require him, from time to time, to accept help from his sister with drying, which I accept would be embarrassing and uncomfortable. I find that his other injuries - in particular, his back injury - is also likely to contribute to these difficulties.
Mental health
113In his affidavit, he says he has had a substantial deterioration in his mental health. It is not clear to me that this deterioration can be attributed to his right shoulder or the limitations and restrictions that arise from the right shoulder aggravation. He has not seen a psychiatrist or psychologist since the motor vehicle accident, and his medication for his mental health has not changed.
114Mr Dinnie has not articulated the way in which an aggravation in his right shoulder pain, as opposed to an aggravation in his overall experience of pain, has caused a worsening of his mental health. Nevertheless, I am satisfied that to the extent that his right shoulder pain is now worse than it used to be, it will be making some contribution to the worsening of his mental health, to the extent that his mental health problems are caused by his pain condition.
115The degree to which his mental health has worsened is not apparent on the medical material, given the very significant mental health injury he has sustained prior to the motor vehicle accident.
Ongoing treatment
116He is now prescribed Targin, Endep and Lyrica for pain. He acknowledges that these medications are for all the pain he experiences, including his right knee and lower back. Previously he reported to Dr Slesenger, in 2017, that he was taking Lyrica; Endep; Zoloft; amitriptyline; Panadeine Forte; and esomeprazole, which is Nexium, not related to pain. And he has also previously been prescribed MS Contin, Endone and oxycodone, and in fact had also previously been prescribed Targin.
117He says that the medication only relieves his symptoms and pain for short periods now, and that he aches all over and has a lot of pain. He submits that the prescription of Targin, an opioid, is a new prescription since the motor vehicle accident, which commenced in about May 2018 and has continued ever since. Although he has previously had prescriptions of Targin and other opioids, he had not consistently taken it for such an extended period.
118A review of his general practitioner records confirms that he has been prescribed Targin pretty much consistently since 28 May 2018, and at various times this has been supplemented with oxycodone and other pain medications. A review of his general practitioner records show that in the three years prior to the motor vehicle accident, he had ongoing scripts for Lyrica, but only intermittent scripts for other analgesia, including Endone, Targin and prednisolone. This is consistent with an increase in Mr Dinnie's pain following the motor vehicle accident.
119However, it is not possible to say that the Targin is prescribed because of or primarily for increased shoulder pain. For example, on 24 November 2024, Dr Tan ascribes the Targin for WorkCover injuries. On 4 March 2020, Dr Tan notes under WorkCover that the continuing pain is not improving with Targin, and he is having to be supplemented at night with additional oxycodone. These are just two examples.
120I am not persuaded that, as a consequence of the right shoulder injury, that specifically because of the right shoulder injury, there has been any change in the medication he takes or the treatment he receives, although I am satisfied that there has been an increase overall in the pain medication he takes for all of his pain.
Assessment of the consequences
121The plaintiff rightly submits that I am required to assess him as he is at present and criticises the defendant for focusing on the plaintiff's first affidavit and not on his second affidavit, where Mr Dinnie articulates that the pain he experiences now is predominantly in his right shoulder. Though I accept his evidence that things have been worse for him overall since the motor vehicle accident, and that he has worsened lower back, knee, and hip pain, I am concerned for the purposes of this application only with the consequences of the right shoulder injury.
122Mr Dinnie at times became a little frustrated with the questions which required him to delineate the cause of various claimed consequences. I appreciate that it is difficult and can feel artificial to a plaintiff to disentangle one consequence from another, or to try to determine the relative contribution of different painful body parts to any particular consequence. Nevertheless, that is what this court is required to do.
123In his first affidavit, Mr Dinnie says, at the time of the motor vehicle accident, he was most concerned about his knee and lower back. A few days later, he had tenderness around shoulders and knees. He says that it was in January 2018 that he began to notice increased pain in his right shoulder, left knee, and lower back. He said in that affidavit he was referred for an ultrasound in February 2018, as well as a cortisone injection of his right shoulder. But in fact, that is in error, and it was in 2017 that he had the right shoulder ultrasound. That is, before the accident. And in March 2019 that he had the MRI.
124There is no evidence to support an ultrasound or cortisone injection in February 2018. He says that in his first affidavit, he continued to attend his general practitioner with bilateral knee pain, increasing pain in his left knee and pain in his lower back. He says in his affidavit that he woke in a lot of pain in his lower back in April 2018 and had to attend Warragul Hospital where he was an inpatient for about four weeks, and where he was prescribed Lyrica and pregabalin for his back pain. I think pregabalin is, in fact, Lyrica.
125He continued to attend his general practitioner with ongoing pain and restrictions in his lower back, right shoulder, and both knees which were all feeling worse since the accident. He says in that affidavit that his general practitioner prescribed oxycodone and Targin, but he was still left with ongoing pain and restriction in his lower back, right shoulder, and both knees, which were feeling worse after the accident.
126He says he went to see orthopaedic surgeon, Raymond Crowe, in December 2018, and he says he complained of pain in his knees and right shoulder as they were causing him the most pain and discomfort. He says his left knee and right shoulder injury were rejected by the Transport Accident Commission, and he could not proceed with the recommended surgery. He said, since then, his GP has continued to prescribe Lyrica, Targin, and the antidepressant, ENDEP.
127He says he takes those medications for his pre‑existing injuries, and they also help with his right shoulder, both his knees, and his lower back. In his first affidavit under pain and suffering consequences, it would be fair to say that he does not single out of the right shoulder pain as being the predominant pain in any way. That affidavit was sworn on 29 November 2023, only 10 months ago. Then in his second affidavit, he identifies his predominant pain as right shoulder pain.
128His identification of his right shoulder pain as the predominant pain is inconsistent with Dr Vivian's report in 2018 where it is ordered last in the list of issues, and I have set out above why I am satisfied Dr Vivian accurately reported what Mr Dinnie told him. Dr Crowe identifies significant problems with both the right shoulder and the left and right knee. There is nothing to suggest that the predominant complaint was the right shoulder. He referred Mr Dinnie for MRI investigations of the left knee and sought approval for investigations of the right shoulder.
129In 2021, Mr Grossbard notes that Mr Dinnie had a degree of desperation to get his right shoulder fixed, and also notes that he has ongoing pain in right knee and lower back which he felt was worse since the motor vehicle accident. In 2021, Dr Schutz records that Mr Dinnie said that he had injured his neck, back, and knee, and that 'everything hurts'. Like Dr Grossbard, he noted Mr Dinnie was able to dress, shower, and toilet himself.
130He considered Mr Dinnie generally an unreliable historian, given inconsistencies between his account and other provided materials including in relation to his history of shoulder pathology. Dr Schutz perhaps understandably given he is a psychiatrist, was not focused on whether the shoulder or some other body part was the predominant source of Mr Dinnie's pain, but I infer from Dr Schutz' report that there was nothing in the history that Mr Dinnie gave to Dr Schutz that identified his right shoulder as the predominant problem.
131In July 2024, Dr Schutz again saw Mr Dinnie and noted that Mr Dinnie denied any shoulder pathology prior to the motor vehicle accident. When Dr Schutz said this was not consistent with the collateral information, he reports that Mr Dinnie said he had niggly pain in his right shoulder, but that he had difficulty recalling this, and that he could not recall how much pain he was in.
132This report by Dr Schutz has a ring of authenticity following my assessment of Mr Dinnie. As I have said numerous times, I do not think Mr Dinnie was evasive or dishonest. However, I do think he had difficulty recalling what pain he was in, when, how bad it was, and where it was coming from. He identified to Dr Schutz and also to this court that he had niggly shoulder pain prior to the motor vehicle accident which significantly understates both the level and consistency of that shoulder pain. I formed the impression that in Mr Dinnie's mind, he had very little or nearly no pain in his right shoulder before the motor vehicle accident, which is clearly not correct.
133He saw Mr Menz, orthopaedic surgeon, in March 2022. Mr Menz reported that when he asked Mr Dinnie about his right shoulder in the context of the motor vehicle accident, he said the pain came on about a month after the accident. In his report of July 2024, Mr Menz reports that Mr Dinnie says his right shoulder pain is worse now. His low back pain alternates between good days and bad days, and his right and left knee pain is worse now. It was only to Dr Lugg who he saw in July 2024 that he identified his right shoulder pain as being the particular source of his pain.
134An explanation for this might be that the pain caused by his other injuries has receded, or that the right shoulder pain has worsened. However, that is not Mr Dinnie's evidence.
135The general practitioner records also do not support a finding that the right shoulder pain is the predominant cause of Mr Dinnie's pain. I have carefully analysed the general practitioner records from the date of the accident up until July 2024, which are the most recent records that were available to me.
136During that period, he has about 107 attendances on a general practitioner, although there are also entries where there was no attendance or for administrative matters. In about 54 of those entries, the general practitioner has mentioned Mr Dinnie's right shoulder. Sometimes, though it should be noted very rarely, the right shoulder is noted as being the primary reason for the visit. Sometimes the right shoulder is mentioned only in the context of awaiting results or only noted as right supraspinatus tear without any further note about pain.
137On many of those attendances, right shoulder pain is noted. However, almost ubiquitously, other pain, mostly back pain and knee pain, are also noted. Three of those 54 attendances, relate to the 2022 motor vehicle accident.
138On about 53 occasions where Mr Dinnie attended his general practitioner after the motor vehicle accident, there is no mention of right shoulder pain at all.
139Some of those visits are for unrelated matters. For example, gastrointestinal complaints. But many of them are noted as being for chronic pain but with no specific mention of shoulder pain. Most of those other entries note other pain, particularly back and knee pain.
140To the extent that it might be said that Mr Dinnie's condition changed over time, and the shoulder pain became more prominent, that is also not supported by an analysis of those medical records. In 2023 and 2024, he had about 28 attendances. In only 11 of those was the right shoulder mentioned. In none of those attendances was the right shoulder pain the only or predominant feature of the presentation.
141For several months, over the period of October to December 2019, the right shoulder pain is noted to be '+++'. Thereafter there are occasional flare-up: for example, on 2 July 2020, he is noted to have '++ pain' in his right shoulder and '++ generalised pain'; on 11 August 2020, he is noted to have '++ pain' in the right shoulder; on 11 June 2020, the knee pain is noted to be 'painful +++'; on 1 September 2020, the knee pain is noted to be '+++'; on 1 October 2020, the left knee is noted to be 'hurting +++'; on 18 June 2020, Mr Dinnie is noted to have general pain, decreased in the shoulder and increased in the back. This is just a sample of entries that illustrate the point that Mr Dinnie is complaining of pain consistently, but in different body parts, at his attendances on his general practitioner.
142The overwhelming picture from the medical records is of a man who has pain in his right shoulder, his right and left knee, and his lower back, which is fairly constant, requires strong analgesia, and which flares up from time to time. When Mr Dinnie has a flare-up, it is sometimes in his right shoulder, but it is also sometimes in his knee or back.
143It is difficult, in the context of his first affidavit, his history to his medico-legal experts, the medical records from his general practitioner, his evidence under cross-examination, and his presentation in court, where he could not sit or stand for long, and which he identified as being caused by his back pain - and I am referring here to transcript 103, where he says, 'Right now, you know, I'm up, I'm down: that's my back pain.' It is difficult, in the context of all of that, for me to accept that the predominant cause of his pain is the aggravation of his right shoulder injury.
144The fact that the right shoulder injury is not the predominant source of his pain is not fatal to Mr Dinnie's claim if Mr Dinnie is otherwise able to establish that the aggravation to his right shoulder meets the test for 'more than significant' or 'marked and at least very considerable'.
Do the consequences meet the test?
145It was evident throughout the hearing that Mr Dinnie was in significant pain, which he explained was due in large part to his back pain. As I have already said, Mr Dinnie was an honest witness, doing his best to assist the Court. It is always more difficult to assess the consequences of an injury in a person with a significant pre-existing condition.
146I accept that as a consequence of the motor vehicle accident, Mr Dinnie has had an aggravation in the level of pain that he experiences. I am satisfied that there is an aggravation in relation to his right shoulder, his low back, and his right knee; and that as a result, he has also had an exacerbation of his psychiatric injury. He has also developed a left knee injury, which is possibly a new injury, possibly an aggravation of an existing injury; there are some competing opinions on that, but for the purposes of this application, it is not necessary for me to determine.
147The constellation of the various aggravations to injuries of various body parts are certainly significant. However, I must be satisfied that the aggravation of his right shoulder injury, including any psychiatric consequences of that aggravation, meet the relevant test.
148I am satisfied, on the evidence, that Mr Dinnie has an aggravation of his right shoulder injury, and that as a consequence, he has more pain in his right shoulder. I am satisfied that he has a new sort of pain than he previously experienced, which is of greater instability and, as he describes it, that his arm might come out of its socket. And this is consistent with a partial tear becoming a full thickness tear. However, it is difficult to determine the additional degree of pain, given I do not accept his evidence about the pain prior to the motor vehicle accident.
149Doing the best I can, I find that he has an increase in his right shoulder pain, which has not required any specific additional medication that can be attributed only to the right shoulder. I am not satisfied that the aggravation has resulted in any significant further restriction. There is no medical evidence that the progression of the tear from a partial thickness to full thickness tear exposes Mr Dinnie to any increase of developing a further medical condition, such as arthritis.
150I accept that he will continue to have an unstable and more painful shoulder. I am satisfied that as a result of this instability, he can no longer go fishing, which he used to do about once a month, and perhaps slightly more often in the warmer months. And I am satisfied that the increased pain also means that the activities of daily living are somewhat more difficult, particularly dressing and washing himself, and on occasion that he has to seek assistance from his sister when drying.
151Mr Dinnie has not established, however, that it is the aggravation of his right shoulder injury that has caused consequences for his sleep, or his capacity to socialise, or his mental health, or his ability to drive, or capacity to engage in housework.
152In a person who already has a life severely limited by pain and physical restrictions, the loss of the ability to undertake comparatively minor activities may represent a consequence that, for the individual plaintiff, meets the test of serious injury. However, in this case, I am not satisfied that the consequences I have found attributable to the right shoulder injury are sufficient to meet that test.
153The modest increased level of pain and the modest impacts on his life that can be attributed to the right shoulder injury could be described as significant for Mr Dinnie, given his circumstances, which are already very significantly constrained by his inability to walk more than a very short distance, his difficulties driving, and his very limited life. However, those consequences are not very considerable, or more than significant, or marked, having regard to the range of possible impairments. Accordingly, the application is dismissed.
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