Donnelly v Transport Accident Commission
[2018] VCC 1088
•20 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-04033
| FRANCIS (“FRANK”) DONNELLY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 July 2018 | |
DATE OF JUDGMENT: | 20 July 2018 | |
CASE MAY BE CITED AS: | Donnelly v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1088 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to right shoulder – subsequent further accident aggravating right shoulder injury – pre-existing right shoulder problems – disentanglement of consequences of later injury – whether consequences of subject injury “very considerable”
Legislation Cited: Transport Accident Act 1986
Judgment: Leave granted to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Mr C A Sidebottom | Maurice Blackburn |
| For the Defendant | Mr P B Jens QC with Ms E Golshtein | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Preliminary
1 In 2002, Mr Donnelly had been treated for a right shoulder problem and attended his general practitioner several times. An ultrasound investigation showed tendinosis of the supraspinatus tendon, with a partial thickness tear. He says he fully recovered from this problem and was able to resume his work as a painter and pursue his passion, bicycle riding, without restriction.
2 On 6 October 2011, Mr Donnelly was riding his pushbike when he was struck by a car at an intersection in Brighton (“the subject accident”). He suffered an injury to his right shoulder, described as an aggravation of a full thickness tear of the supraspinatus tendon of the right shoulder, and an acromioclavicular strain, with shoulder subluxation and widening.
3 After the subject accident, he resumed full-time work in the painting business he ran with his brother, albeit largely restricted to administrative tasks. He returned to the bike, and got back to riding twelve or more hours per week.
4 Mr Donnelly was involved in a further bicycle accident on 26 February 2015 when he was racing at the Sandown Racecourse (“the 2015 accident”). That injury was described as a soft-tissue injury which contributed to a “massive tear” or avulsion of the supraspinatus, infraspinatus and teres minor components of the rotator cuff. Mr Shane Barwood, orthopaedic surgeon, performed a rotator cuff repair on 30 March 2015.
5 The surgery led to an improvement in his shoulder symptoms, and Mr Donnelly has returned to work in the painting business, although not to any painting. He has also resumed bike riding, back to twelve or so hours per week, although not racing competitively.
6 This is a “serious injury application”. The body function said to be lost or impaired is the right shoulder.
7 Mr Jens, for the defendant, identified the issues in the application as:
· The consequences of the subject accident were not significant, in particular in respect of Mr Donnelly’s work capacity, and effect upon his cycling, and not sufficient to achieve the “very considerable” level the authorities require.
· The more significant consequences occurred after the 2015 accident which had a greater effect upon Mr Donnelly’s recreational, work and social activities.
· In any event, to the present time, Mr Donnelly remained very active, riding his bicycle extensively each week, and working full time in a successful business.
8 This application requires a careful analysis of the effect upon Mr Donnelly of, firstly, the underlying pre-existing condition in his right shoulder, the consequences suffered as a result of the subject accident between 2011 and 2015, and the consequences suffered as a result of the 2015 accident.
Pre-existing right shoulder condition
9 In August 2002, Mr Donnelly went to see his general practitioner, complaining of right shoulder pain. An ultrasound revealed tendinosis of the supraspinatus tendon with a partial thickness tear. He was prescribed anti-inflammatories and given shoulder exercises. According to his affidavit, the pain resolved. In May 2008, he had a fall from his bike and suffered additional pain in his neck and right shoulder. He went to the Monash Medical Centre, where x-rays were taken of both shoulders. He saw a physiotherapist a number of times. Again, he says he made a complete recovery from those early symptoms.
10 I do not see this early right shoulder problem as a significant issue in the proceeding. I accept Mr Donnelly’s explanation that he made a complete recovery from the right shoulder pain and restriction. Mr Jens, for the defendant, did not press the pre-existing right shoulder problems as a matter of any significance in the application.
The subject accident and the consequences which followed
11 After the subject accident, Mr Donnelly was initially treated by his general practitioner, Dr Pushpa. An MRI scan revealed a large full thickness tear of the supraspinatus tendon. He was referred initially to an orthopaedic surgeon, Mr Ash Chehata, who described the MRI findings as:
“… an extensive rotator cuff tear 2.3 cm x 1.8 cm with an extensive joint effusion, and prominent widening of the AC joint. There was cystic change in the lateral clavicle, all consistent with a grade II AC joint dislocation with associated degenerative changes. There was a large partial thickness rotator cuff tear, with significant subacromial bursitis and fluid in the long head of biceps tendon sheath.”[1]
[1]Plaintiff’s Court Book (“PCB”) 28
12 Mr Chehata suggested surgery to repair the rotator cuff tear. Mr Donnelly decided upon conservative management.
13 Mr Donnelly gradually recovered use of the shoulder, which was stiff and sore to begin with. He returned to work in December 2011 on light duties, undertaking mostly administrative tasks.
14 He sought another orthopaedic opinion from Mr Derek Carr, who suggested physiotherapy and strengthening of the shoulder capsule. According to Mr Carr, Mr Donnelly continued to make gains in early 2012, with a full range of motion of the right shoulder. Mr Carr noted that Mr Donnelly was happy back riding the bike, but was unable to lift heavier weights or work overhead. Mr Donnelly told Mr Carr he was at about 75 per cent in respect of his general activities, and at 60 per cent in respect of his work activities.[2]
[2]PCB 123
15 Mr Carr cautioned that the full thickness tear in the shoulder may continue to improve, or, if symptoms remain, he would benefit from arthroscopic surgery to repair the tear.
16 By March 2012, Mr Donnelly was working in the business full time. By mid-2012, he had returned to some painting duties
17 Mr Donnelly was questioned extensively about the painting he undertook after the subject accident. He said that by 2012 or 2013, he had been able to resume painting duties for two to three hours per day, although struggled with any overhead work and with lifting heavier objects. He said his duties were mainly restricted to administrative tasks, arranging quotations, ensuring sub-contractors were on site, and general management of the business.
18 It is clear Mr Donnelly had a passionate interest in bicycling. After starting later in life, he rode and competed at an elite level, within his age group.
19 I should say I found Mr Donnelly a straightforward and honest witness giving a fair account of the accidents and the effect of the injuries sustained upon him. There were some minor anomalies in his affidavit which I assess as being more likely to be related to inexact drafting than any intentional exaggeration on his part. I note that the affidavits of his wife[3] and his brother[4] are inaccurate and of little assistance.
[3]PCB 19
[4]PCB 22
20 Mr Donnelly gave evidence that prior to the subject accident, he competed in a number of elite cycling events, including the Tour of Bright, a prominent Victorian cycling event. In 2010, he won two stages of that Tour. His brother, also his business partner, is a keen cyclist and there was a healthy competitive relationship between them. In 2012, after the subject accident, he again attempted the Tour of Bright, but his time was about ten minutes slower than previously – a significant difference.
21 Over the period between accidents, his treatment remained conservative, comprising largely physiotherapy and regular massages. He attended a masseuse, Ms Dafter, for massage therapy over the period from August 2011 until early 2015. According to that practitioner’s notes, his back, neck, shoulders and legs were the subject of treatment.
22 In December 2014, he received treatment from another masseuse, Ms Daking.[5] That practitioner’s notes record a number of attendances in late 2014, early 2015, and say:
“Shoulder R issue since bike accident four years ago – not sleeping properly – broken sleep due to positioning of shoulder – p[ain] after working overhead no power.”
[5]Exhibit B
23 There is reference to the shoulder being “strapped” on regular occasions.
24 According to his affidavit, Mr Donnelly said that in May 2014, his shoulder became sore and he returned to a physiotherapist, Mr Jim Nguyen, for six sessions of treatment. There is no report from that practitioner.
25 Despite not returning to elite competitive levels after the subject accident, nonetheless he returned to racing. Over the summer period, there was regular racing on Thursday evenings at Sandown, where he would race 45 to 50 kilometres. He would often, on weekends, undertake long rides to Frankston and beyond. He trained on Tuesday and Wednesday nights, with longer rides on Saturdays and Sundays. In the course of cross-examination, a number of ride results were put to him, including competitions at East Gippsland, Casey Fields (where he won one or several individual time trials), although he said he was “carried” by co-competitors. He participated in the Victorian Masters Individual Time Trials.
26 When questioned about these achievements, he said, and I accept, that while he was able to resume bike riding, riding twelve or thirteen hours per week and competing, it was not to the same elite level as before the subject accident. As a mark of comparison, he was not able to keep pace with his brother and other elite riders.
27 In terms of the specialist medical opinions, in my view, Mr Chehata’s opinion is significant, not only because he is a treater, but he had the advantage of examining Mr Donnelly prior to the 2015 accident, and then again more recently. In a recent report, he said:
“The significance and size of the rotator cuff tendon tear would certainly pre dispose him to a far more likely tear rate after a subsequent fall in 2015.
Clearly the 2011 event has significantly increased the likelihood of a worsening rotator cuff tear after the fall in 2015.”[6]
[6]PCB 100
28 In a letter to the general practitioner of October 2011, Mr Chehata said:
“An MRI scan certainly showed a partial cuff tear and although his strength and range of movement is excellent I would envisage that the partial cuff tear at his age would increase in size and over the next two years. … .”[7]
[7]PCB 102
29 In his report of 27 March 2018, Mr Chehata said:
“The initial fall causing the massive rotator cuff tear which occurred in 2011, in my opinion is the cause for his ongoing symptoms. …
…
Yes, I believe the 2011 accident was the primary cause. This caused the massive rotator cuff tearing, and although there was an increase in size in the 2015 accident, unfortunately surgical repair has failed, and he is left with a well balanced shoulder, which lacks strength, loss of motion and is likely to progress to cuff arthropathy at some point, requiring a reverse shoulder replacement.”[8]
[8]PCB 102C
30 Mr Donnelly was examined by Mr Rodney Simm, orthopaedic surgeon, on a number of occasions between 2016 and 2018. As a result of the subject accident, Mr Simm said:
“… your client suffered a severe soft tissue injury to the right shoulder, with either causation or aggravation of a full thickness tear of the supraspinatus tendon and an acromioclavicular joint subluxation. Although there was improvement with conservative measures, he had residual right shoulder dysfunction, which did not resolve after this accident.”[9]
[9]PCB 49
31 Mr Simm went on to say:
“It is not possible to determine precisely whether or not the bicycle accidents caused the full thickness rotator cuff tear, as this is not an uncommon finding in asymptomatic individuals of his age. However, considering that he had no symptoms in the shoulder until the first accident, it is reasonable to assume that this accident either caused or substantially extended and/or aggravated the pathology of the supraspinatus tendon tear.
The clinical course after the second accident would suggest that the compromised rotator cuff was tom further, as he can recall being virtually unable to lift his arm after this accident.”[10]
[10]PCB 51
The 2015 accident and the consequences which followed
32 On 26 February 2015, Mr Donnelly had another fall from his bicycle. He was racing at the Sandown Racecourse. He says his shoulder pain increased. He went to see his general practitioner and had an ultrasound taken. He was referred to Mr Shane Barwood, orthopaedic surgeon, in March 2015. According to a report from that practitioner,[11] Mr Donnelly provided no history of the pre-existing right shoulder accident or injury. It was put by Mr Jens that that failure reflects the fact that he was not having significant symptoms at the time. However, I prefer Mr Donnelly’s explanation that he did not provide that history as he was simply not asked.
[11]PCB 34
33 The shoulder came to surgery on 30 March 2015, described as “arthroscopic subacromial decompression, subacromial bursectomy, biceps tenodesis, rotator cuff repair”.[12] He had follow-up physiotherapy with Mr Nguyen. After a period of rehabilitation, he returned to the painting business, although after the 2015 accident, did not get back “on the tools”, that is, was involved solely in administrative and management duties, and did not get back to painting. He resumed massage treatment, and had a personal trainer design a course of exercises to help strengthen the shoulder. He no longer goes to the personal trainer. As a result, he has suffered muscle wasting, loss of strength in the right arm, and the difficulty with carrying heavier items and using his right arm above shoulder height.
[12]PCB 32
34 Eventually, he resumed bicycle riding, although since the 2015 accident, has not resumed racing. In explanation, he said this was partially because of problems with strength and stability in the right shoulder, but also because his family did not want him to race competitively for fear of further injury.
35 However, his bicycle riding has resumed to the point where he now is back riding twelve to thirteen hours per week. He rides and trains, although struggles to keep up with friends. In the course of cross-examination, he admitted that over the past four years he has travelled interstate and overseas and nearly always taken his bicycle and ridden. He has followed some of the European tours. He and his brother have a cycling coaching group which is sponsored by a large bicycle manufacturer. He helps train athletes for triathlons. He has taken groups interstate for competition and training. He rides an exercise bike indoors for fitness. He would prefer to ride outdoors, but is disappointed at not being able to ride at the same level as before.
36 Mr Donnelly has remained under the care of his general practitioner, Dr Malcolm Clark, although accepted that he had made no complaints of right shoulder problems over recent years.
37 He is working full time and accepted that the painting business that he and his brother run is successful. I gained the impression that as the business has developed, his role is more one of management. According to his affidavit, he says he misses the skill and satisfaction of painting.
38 Mr Donnelly has little in the way of treatment at the present time. He says he suffers constant pain in the right shoulder, depending upon the activity in which he is involved. There are aggravations from time to time. He has trouble lifting, and any work overhead causes pain. He is not able to ride his bike in the same manner as before, particularly in a peloton. He complains of problems with sleep, and is awoken if he lies on his right side.
39 In terms of the medical opinions, Mr Simm, orthopaedic surgeon, noted that, according to the operation notes of 2015, there was a complete rupture of the rotator cuff.[13] According to the history Mr Simm received, Mr Donnelly said he was able to lie on his right shoulder at night and had very little shoulder pain.[14] As at 2016, Mr Simm noted moderate dysfunction of the right shoulder, particularly with overhead use or rotation. He said there was no risk of arthritis to the shoulder joint, but there was a risk of arthritis to the acromioclavicular joint.[15] Mr Simm said that he could not say if the cycling accidents caused the rotator cuff to tear, as rotator cuff tears were not uncommon in a person of Mr Donnelly’s age. However, he said that the first accident caused a tear or extended a pre-existing tear, or aggravated the pathology in the supraspinatus tendon. There was likely a further tear in the 2015 accident.[16]
[13]PCB 47
[14]PCB 48
[15]PCB 50
[16]PCB 51
40 In his report of 2018, Mr Simm said there had been an improvement in his right shoulder, although it was still uncomfortable if he lay on it at night and that discomfort may wake him. He received a history that the main problem was weakness around the shoulder and difficulty lifting his arm with physical activities. He was not able to reach the back of his head.[17]
[17]PCB 67
41 Mr Donnelly was examined by Dr Robyn Horsley, occupational physician, in February 2018. She commented that because of Mr Donnelly’s extensive physical rehabilitation program, he had had a good response to the surgery. She received a history of right shoulder discomfort, particularly if he fell asleep upon the right shoulder, although there was little discomfort at work or at rest, and a good range of movement. She set out the effects of both the subject accident and the 2015 accident.[18] She said Mr Donnelly was at risk of the degenerative process accelerating in the right shoulder as he aged.
[18]PCB 95
42 As earlier stated, Mr Chehata said that the subject accident was the primary cause of his shoulder dysfunction. He noted severe wasting in the shoulder girdle area with loss of power. He said that as a result, the subject accident had a profound effect upon Mr Donnelly’s ability to perform work overhead, and to perform repetitive actions of the right arm.
43 On behalf of the defendant, Mr Donnelly was examined by Mr Michael Dooley, orthopaedic surgeon, in February 2018. He noted Mr Donnelly had difficulty with lifting and activities of the right arm above shoulder level. He received a history of intermittent nocturnal pain. He described the subject accident as Mr Donnelly –
“… sustaining an injury that involved a sprain or mild subluxation of the acromioclavicular joint and subcutaneous and muscular bruising around the shoulder girdle. The mechanism of the motor vehicle accident with a fall onto the right shoulder would be consistent with this diagnosis. The finding of degeneration and degenerative tearing of the supraspinatus and subscapularis tendons would be in keeping with the natural evolution of his underlying degenerative rotator cuff disease. … .”[19]
[19]Defendant’s Court Book (“DCB”) 15
44 According to Mr Dooley, the underlying degenerative process was responsible for 40 per cent of Mr Donnelly’s current shoulder condition, the pre-existing 2008 problems for 10 per cent, the subject accident for 20 per cent, and the 2015 accident for 30 per cent.[20]
[20]DCB 16
Analysis
45 Mr Jens submitted that it was really the 2015 accident which caused the more significant consequences for Mr Donnelly. It was that event which brought about the surgical intervention, and it has only been since 2015 that Mr Donnelly has had to retire from competitive cycling, and been completely unable to perform painting duties. Even, regardless, said Mr Jens, one must have regard to not only those aspects of Mr Donnelly’s recreational, domestic and work-related activities which are lost, but also those which are retained. On any view, he has maintained a highly active life, in particular, spending twelve or fourteen hours a week cycling, and working full time managing a successful business. He receives little in the way of treatment, and there is little restriction in his activities of daily living. He was able to go overseas regularly and pursue his passion for cycling, and even be involved in training and managing other cyclists. Prior to the 2015 accident, he was able to compete regularly and to a higher level.
46 At first blush, there is significant merit in Mr Jens’ submissions. Mr Donnelly has, indeed, returned to a very active lifestyle, in particular, in relation to his cycling. Further, he is able to work and manage a successful painting business.
47 In my assessment, there are three principal consequences of the subject accident. Firstly, I accept that he was not able to return to the full painting duties he undertook before. I accept his evidence that that was a source of pride to him, and that while he was able to get back to two to three hours of painting a day, he was restricted, particularly in lifting heavier items with his right hand and work overhead.
48 The second principal consequence relates to his cycling. I accept that while he did resume cycling to a higher level after the subject accident, and returned to about the same number of hours of cycling, he was not able to achieve the same level as before the subject accident. I accept his evidence that he was at an elite level in relation to his age group, exemplified by two stage wins in the Tour of Bright. I further accept that he was not able to achieve that level subsequent to the subject accident and fell off the same competitive level with his brother.
49 The third consequence is that identified by Mr Chehata, the orthopaedic surgeon who treated him after the subject accident, which he said was the prime cause of his current disability and significantly predisposed him to the tear which occurred in the 2015 accident. I accept Mr Chehata’s evidence, given he treated Mr Donnelly in the intervening period, that the subject accident significantly increased the likelihood of the worsening of the rotator cuff which occurred in 2015.
50 In analysing these three consequences, I do not see the loss of Mr Donnelly’s involvement in painting as being particularly significant. I got the impression that with the growth of the success of the business, he was being more directed into a management role in any event. While I accept not being able to paint was a source of some frustration, in the scheme of things it does not loom large.
51 I do accept that while he was still able to ride and compete at a relatively high level for his age group in his cycling passion after the subject accident, the effect upon him of the right shoulder injury did reduce his competitive capacity to a moderate, but significant extent. For an elite athlete, even someone in their fifties or sixties to come down from the top tier to a level or two beneath is a matter of significance. It is not unlike someone performing a sport at the elite level and having suffered an injury, then only able to perform at one level down. While the amount of hours, training and participation remains the same, the difference to a highly competitive and talented athlete is substantial.
52 I further accept Mr Chehata’s evidence that the subject accident predisposed Mr Donnelly to the 2015 injury. This is a significant consequence.
53 Assessing these two principal consequences and bearing in mind the range of injuries, impairments and loss of body functions, I am of the view these consequences meet the “very considerable” test.
54 Accordingly, I shall grant leave to Mr Donnelly to bring common law proceedings, and make consequent orders.
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