Duncan v Transport Accident Commission
[2016] VCC 1958
•21 December 2016
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-00104
| RENEE LOUISE DUNCAN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 29 and 30 November 2016 | |
DATE OF JUDGMENT: | 21 December 2016 | |
CASE MAY BE CITED AS: | Duncan v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1958 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – paragraph (a) and paragraph (c) – injury to right and left shoulders – severe long-term mental, or severe long-term behavioural disturbance
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Humphries & Anor v Poljak [1992] 2 VR 129
Judgment: Leave granted to the plaintiff to bring common law proceedings in respect of the transport accident which occurred on 30 June 2013.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I R Fehring with Mr G Pierorazio | Stringer Clark |
| For the Defendant | Mr R W Middleton QC with Ms D Manova | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This is an application by the plaintiff by Originating Motion for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring a proceeding against the defendant to recover damages for pain and suffering.
2 The plaintiff was injured in a transport accident that occurred on 30 June 2013 when a vehicle that she was driving was deliberately rammed by another vehicle being driven by her former partner on the main highway, or Raglan Parade in Warrnambool. The plaintiff’s vehicle spun around 180 degrees before leaving the roadway and striking a signpost. The plaintiff was injured. (“the accident”).[1]
[1]Plaintiff’s first affidavit at paragraph [4]
3 The plaintiff’s case is that she suffers from four possible permanent impairments as a result of injuries she sustained in the accident. Firstly, she claims to have suffered a serious injury to the right and left shoulders within sub-paragraph (a) of the definition of “serious injury” found in s93(17) of the Act. The plaintiff’s case in relation to the injuries to both shoulders is that I should view the injuries on a bilateral basis, combining the injury to each shoulder into one impairment. Alternatively, the case is put that I should treat the injury to each of the shoulders separately, that is, two separate impairments. Further, the plaintiff claims to have suffered a severe long-term mental, or severe long-term behavioural disturbance, within sub-paragraph (c) of the definition of “serious injury”.
4 There is no issue between the parties that the plaintiff sustained injuries to both of her shoulders in the accident. The defendant submits neither of these injuries are a “serious injury” within the Act.
5 The application was contested in the main on the issue as to whether the plaintiff’s right shoulder injury amounted to a serious injury. For reasons which follow, I have concluded that the plaintiff should succeed in relation to this aspect of her claim. I have concluded that the plaintiff suffered an injury to her right shoulder that has resulted in a permanent impairment of the right shoulder with serious injury consequences for the plaintiff.
6 It is therefore unnecessary that I deal with the application insofar as it relies upon a serious injury having been sustained to the left shoulder, or insofar as it relates to a claimed bilateral impairment to both of her shoulders in combination. It is also not necessary that I decide that part of the application that relies upon a finding of serious injury within sub-paragraph (c) of the definition in the Act. I can indicate, however, that were it necessary that I had to decide that part of the plaintiff’s application, I would have dismissed it, because there is no evidence before me that would justify a finding that as a result of the accident, the plaintiff suffered from a severe long-term mental or severe long-term behavioural disturbance within sub-paragraph (c) of the definition in the Act.
7 There is a dispute between the parties relating to the claimed injury to the right shoulder. The defendant submits that this injury is not a “serious injury” within the Act. These reasons therefore concentrate upon that part of the application that relates to this issue.
8 The background facts relating to the plaintiff’s injury and treatment are not in contention and can be shortly summarised. But before turning to those, it is necessary that I set out some basic legal principles that must be applied in deciding applications such as this.
The statutory scheme
9 The application is brought under the definition of “serious injury” contained in ss(17) of s93 of the Act which requires the plaintiff to prove that she has suffered a “serious long-term impairment or loss of a body function”.
10 The relevant considerations which apply to such an application are as follows:
(a) the plaintiff must prove that she has suffered a compensable injury, that is, an injury which she suffered arising out of a transport accident occurring on or after 20 May 1986;[2]
[2]Section 93(1)
(b) the injury and, the impairment, must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future;
(c) the plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) to be “serious” the consequences of the injury must be serious to the plaintiff. In forming a judgment as to whether, when regard is had to such consequence, an injury is held to be serious, the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as “very considerable” and, certainly more than “significant” or “marked”?[3]
[3]Humphries & Anor v Poljak [1992] 2 VR 129 at 140-1
Evidence
11 The plaintiff has sworn two affidavits in support of her application. The first of them was sworn by her on 17 November 2015 (“the first affidavit”)[4] and the second was sworn on 4 July 2016 (“the second affidavit). The plaintiff was called to give evidence and was cross-examined by Mr Middleton QC, who appeared with Ms Manova for the defendant. There were no other witnesses called.
[4]PCB 2
12 The plaintiff prepared a court book which contained an affidavit of her mother and her partner and various medical reports. At the end of the plaintiff’s evidence I marked pages 2 to 78 inclusive of the plaintiff’s court book as exhibit “A” on the application (“PCB”).[5]
[5]Transcript (“T”) 74
13 The defendant tended a DVD which contained video surveillance of the plaintiff which I marked as Exhibit 1. The defendant also tended a court book containing various medical reports and other documents (“DCB”). This was marked as Exhibit 2.[6]
[6]T74
14 The plaintiff is now forty years of age and she is right-handed. She has two adult children and she resides with her son and her partner at an address in Warrnambool. The plaintiff is presently employed on a part-time basis working for a company called “Go Traffic”, where she is generally employed attending to traffic management duties at various sites where road maintenance work or construction is usually being carried out. She sets up signs, barriers, and witches hats, et cetera that are set up for the purpose of diverting traffic around construction sites on a highway or warning traffic using the highway of the need to stop or slow down. I will deal with the video surveillance evidence later but in that surveillance, plaintiff is seen going about her work holding a “stop/go” sign in the form commonly seen on Victorian roads. At the time of the accident, the plaintiff was not employed.[7]
[7]PCB 5, paragraph [40]
15 In her first affidavit, the plaintiff said that she was educated to Year 10 level and she left school halfway through Year 10 when she commenced a course of study for a welfare diploma. Between 2005 and 2009, she worked as a resident worker for Community Connections Victoria, and between 2010 and 2011, she worked as a housing support worker for Emma House. During the course of this work, she suffered psychological injuries which gave rise to WorkCover claims that were ultimately compromised.
16 The plaintiff said that she has been seeing psychologist, Ms Bente Schjeflo, since 2 August 2011, that is, before the accident.
17 In her first affidavit, the plaintiff set out the circumstances leading up to the accident, and what happened which caused the accident. None of this evidence is in contention and it is unnecessary that I set it out in detail. The plaintiff said she tried to avoid veering off the side of the road and that as she did this, a truck was coming from the opposite direction and she was scared that she was going to hit it. She regained her composure, only to be rammed again from behind by a vehicle driven by her former partner which caused her car to spin and turn 180 degrees and face the wrong way whilst striking a signpost in the process. The plaintiff remained in her car for a time, recovering her composure. She was assisted by people passing by until police arrived.
18 The plaintiff said she attended upon her general practitioner, Dr Michael Quinn, two days later, on 2 July 2013, suffering from pain in her right shoulder and neck. The following day, she attended the same clinic and saw her regular general practitioner, Dr Slattery. He prescribed that an ultrasound of the right shoulder be carried out, and that was done on 30 August 2013. It revealed a thickening of the subacromial subdeltoid bursa consistent with bursopathy. Dr Slattery also requested an x-ray of the plaintiff’s neck which was carried out on 20 September 2013.
19 The plaintiff said that she was suffering from persisting pain in her right shoulder and pain in her left shoulder and pain in her neck. The plaintiff also had an ultrasound of her left shoulder on 4 October 2013 which also revealed thickening of the subacromial subdeltoid bursa. Dr Slattery arranged for the plaintiff’s shoulders to be injected with cortisone. She had three cortisone injections into the right shoulder over a period of six to seven weeks, and two injections into her left shoulder during the same period. She also received physiotherapy for pain in both shoulders at Southwest Health Care on 29 November 2013.
20 Because of persisting pain, particularly in the right shoulder, the plaintiff was referred by Dr Slattery to orthopaedic surgeon, Mr Arogundade. He performed right shoulder arthroscopic surgery in July 2014 (thirteen months after the accident).
21 The surgery at first assisted the plaintiff with both pain, and movement in her right shoulder, but she said she continued to suffer from ongoing pain and symptoms which she says, and I accept, are present to this day.
22 The plaintiff deposed in her first affidavit that she suffers from pain in her right shoulder which is made worse with activity. She says that she suffers from stiffness in the right shoulder with loss of strength, and overhead movements of the right shoulder increase the pain level in it.
23 The plaintiff deposed that while she still has left shoulder pain, it is not as severe as that in the right shoulder, and she suffers from ongoing headache.
24 As to other consequences, the plaintiff deposed that she has lost 20 kilograms in weight since the accident because of loss of appetite, sometimes not eating at all. She claims to have difficulty sleeping, and at the time of swearing her first affidavit, she was continuing to see Dr Slattery once or twice a month.
25 The plaintiff said that she stopped consulting with the psychologist, Ms Schjeflo, in late 2014 “as quite frankly I was sick and tired of having to recount the circumstances of the motor vehicle accident over and over again”.[8]
[8]PCB 5, paragraph [35]
26 She has continued to see Mr Tony Grace for physiotherapy treatment predominantly to her right shoulder.[9]
[9]PCB 5, paragraph [36]
27 In her first affidavit, the plaintiff deposed that because she relies more on her left arm due to the pain in her right shoulder, she has commenced to suffer left elbow pain. The plaintiff said that she has been taking Panadol Extra and Panadol and also Panadeine Forte for her left elbow pain.[10] At the time of swearing her first affidavit, the plaintiff said that she was taking Seroquel, 25 milligrams twice nightly to assist with sleep. She was also taking the antidepressant, Lovan, 80 milligrams once or twice a day for anxiety and depression.
[10]PCB 5, paragraph [38]
28 The plaintiff said in her first affidavit that she commenced employment as a traffic controller with “Go Traffic” in around November 2014, about seventeen months after the accident. She works on a casual basis two days a week and her hours vary between four and fifteen hours per week for which she is paid $25 per hour. She also receives a top up under the New Start allowance from Centrelink. She freely admits that the work is “quite easy and I am simply required to hold a stop/go sign”.[11] However, the plaintiff makes clear in her first affidavit that she is restricted in the use of her right arm for any activity that requires its use for long periods, or the application of force, and/or above head height movement.[12] Because of this, she has difficulty with day-to-day activities such as vacuuming, mopping, hanging out washing, making beds and dusting overhead. The plaintiff deposed that activities such as scrubbing the shower and washing the car are difficult for her because of her right shoulder pain and she requires assistance from her children to carry out these tasks. She has also deposed that she has difficulty holding heavy shopping bags in her right arm, and when she does her shopping, she usually takes one or other of her children with her to assist. Her son now mows her lawns. The plaintiff said that she has difficulty driving for long periods.[13]
[11]PCB 6, paragraph [43]
[12]PCB 6, paragraph [44]
[13]PCB 6, paragraphs [42]-[50]
29 In relation to psychological consequences, the plaintiff deposed in her first affidavit to having experienced regular nightmares of the accident, resulting in her waking in panic and feeling distressed. She suffers regular flashbacks. She deposed that the accident is on her mind every day and she attempts to address this by breathing exercises and trying to relax. She said that she is now very anxious about her safety and security. She experiences panic attacks, palpitations, shortness of breath, light headedness and high levels of anxiety. The plaintiff deposed that she drinks and gambles to excess. In her first affidavit, she set out many ways in which she claims to be psychologically affected as a consequence of the accident.[14] Having regard to the conclusions that I have reached, it is not necessary that I deal with these psychological issues in further detail.
[14]PCB 6-7, paragraphs [51]-[65]
30 In her second affidavit, the plaintiff deposed that she had not experienced any improvement in her shoulders since the time that she swore her first affidavit in November 2015. She said her right shoulder had deteriorated. She deposed that she is suffering from increased pain in her right shoulder with repetitive or excessive movement, together with increased loss of strength. She deposed that her sleep was affected, in part by her right shoulder, and she said she had discussed this matter with Dr Slattery, her general practitioner, with a view to increasing the dosage of her sleeping medication, Seroquel.[15]
[15]PCB 9-10, paragraphs [1]-[6]
31 In her second affidavit, the plaintiff said that the pain in her right shoulder radiates up into her neck, and she continues to suffer from headaches.[16]
[16]PCB 10, paragraphs [6]-[7]
32 At the time of swearing the second affidavit, the plaintiff continued to work as a road traffic controller, mostly in the Warrnambool area, but at times she was required to work as far away as Colac or Hamilton. In the weeks leading up to the swearing of the second affidavit, the plaintiff deposed that she had worked on average 20 to 26 hours per week, and in one week she was required to work a 50-hour week. She said when she worked 50 hours, she later was suffering from “extreme pain in my right shoulder by the end of day and ended up laying down most of the weekend trying to recover”.[17]
[17]PCB 10, paragraphs [10]-[11]
33 The plaintiff said that she takes Panadol (about four a day), and Panadeine Extra (about two a day). The plaintiff said that in the week where she worked 50 hours, she took extra doses of these medications “to get through”.[18] The plaintiff said that working in cold weather increases the pain in her shoulders.[19]
[18]PCB 10, paragraph [13]
[19]PCB 10, paragraph [15]
34 Also in her second affidavit, the plaintiff deposed that she is never pain-free in her right shoulder although the pain varies in intensity depending upon her level of activity. “By the end of that day, after cleaning the house, my right shoulder was extremely painful and remained extremely painful for a number of days.”[20]
[20]PCB 11, paragraph [18]
35 Because of the pain in her right shoulder, the plaintiff deposes to having curtailed social activities. She has reduced the amount of cooking that she does, and tasks such as cleaning the shower, and mowing lawns, and gardening remain difficult for her. “If I attempt these activities I generally pay for it later on”.[21] The plaintiff said that even normally simple tasks such as combing her hair or putting on her bra are difficult for her.[22] Driving long distances causes increased pain in her right shoulder.[23]
[21]PCB 11, paragraphs [19]-[22]
[22]PCB 11, paragraph [23]
[23]PCB 11, paragraph [24]
36 The plaintiff has employed self-help techniques to try to assist with her right shoulder pain. She has acquired a massage machine which she says assists, and she applies cold packs to her right shoulder.[24]
[24]PCB 12, paragraphs [26]-[27]
37 The plaintiff’s mother, Lorraine Duncan, also swore an affidavit supporting the plaintiff’s application on 10 November 2016. She was not called for cross-examination. The affidavit generally supports the evidence given by the plaintiff as to the consequences she suffers because of ongoing right shoulder pain.[25] A similar affidavit was sworn by the plaintiff’s partner, Cori Swan, on 8 November of this year. He also was not called for cross-examination.[26]
[25]PCB 14
[26]PCB 17
38 During the course of her cross-examination by Mr Middleton, I asked the plaintiff if she was experiencing pain as she was sitting in the witness box. This is the exchange:
Q:Are you in any pain as you sit there now?‑‑‑
A:Yes.
Q:You have been sitting in the witness box for some time?‑‑‑
A:Yes. I took Panadol in the break.
Q:Yes, in the right shoulder, and how would you rate it out of ten?‑‑‑
A:Um, after I took the Panadol it’s probably only a four.
Q:And before? Before you took the Panadol? How would you rate it that caused you to take the Panadol?‑‑‑
A:Um, it was about a six or a seven before I took the Panadol.
Q:What are you like after a full day’s work, when you do seven hours a day?‑‑‑
A:Horrible.
Q:What would you rate it at then?‑‑‑
A:A nine.[27]
[27]T47
39 The plaintiff was shown the video surveillance which depicted her carrying out her work during the course of her cross examination. The plaintiff agreed that she is able to do the work that she is presently employed to do. However, she says that after a full day’s work she is in pain. As she said in answer to my question, she feels “horrible”. There is no issue here that the plaintiff is able to do the work that she sought after she was injured. The question is whether she is in constant pain in the right shoulder. The plaintiff was pressed on this issue on the second day of her evidence when the following passage transpired:
Q:“You said to His Honour in the break you took some Panadol and your pain levels went from six or seven out of ten down to four?‑‑‑
A:Yes.
Q:When you do eight hours of work, what are your pain levels like, for example, on 6 June. What would they be like after doing eight hours of work?‑‑‑
A:It would depend on the day and what I actually did on that day.
Q:You say to His Honour do you that you're in constant unremitting pain in your shoulder?‑‑‑
A:Yes.
Q:And it’s severe?‑‑‑
A:Yes.
Q:I put to you that that couldn’t possibly be consistent with you performing the work activities that you were doing as depicted in the video surveillance on 6 June, I put to you as a proposition that can’t be right, given what we’ve seen?‑‑‑
A:I disagree.”[28]
[28]T56
40 During the course of the cross examination I attempted by my own questioning to summarise the position of the plaintiff so far as her right shoulder pain is concerned. It had been put to her that her surgeon, Mr Arogundade, was of the opinion that a good result had been achieved by the surgery. As it transpired, he was probably being overly optimistic as the treating surgeon because the plaintiff received an ultrasound-guided cortisone injection into the right shoulder only about twelve weeks before the hearing and some three years after the accident. She received the injection to relieve ongoing right shoulder pain. This passage transpired in the evidence:
Q:Just whilst Mr Middleton’s working his thoughts there, I’ve had a chance to now read the papers. Is my understanding correct that you had the accident and then a couple of days later you went to the doctor?‑‑‑
A:Yes.
Q:You were suffering from pain in the right shoulder?‑‑‑
A:Yes.
Q:And some other neck and in the left shoulder pain area?‑‑‑
Q:Yes.
A:Pain in the right shoulder continued?‑‑‑
Q:Yes.
A:You had some physio?‑‑‑
Q:Yes.
A:That didn’t help and eventually you were referred to a surgeon?‑‑‑
A:Kunle.
Q:Arogundade or whatever his name is, I’ve just forgotten his name?‑‑‑
A:Yes.
Q:I mean no disrespect, but you were referred to him?‑‑‑
A:Yes.
Q:About two months after that you had some angioplasty surgery?‑‑‑
A:Yes.
Q:You at first had a reasonably good result from that?‑‑‑
A:Yes.
Q:Then you at some point suffered complaints of ongoing pain?‑‑‑
A:Yes.
Q:You then more recently have had a cortisone injection into your right shoulder, is that right?‑‑‑
A:Yes.
Q:When was that?‑‑‑
A:The cortisone injection, Your Honour?
Q:Yes?‑‑‑
A:Maybe at a guess 12 weeks ago now at a guess.
Q:What’s the result of that been?‑‑‑
A:When the cortisone injection was in there it was quite good, I wasn’t in the degree of pain that I was prior but now that it’s worn off I’m back to being in that pain prior.[29]
[29]T57-58
41 Both in her affidavits and in her evidence, the plaintiff says that she is in constant pain. The plaintiff gave evidence over a reasonably long period where she was cross-examined extensively by Mr Middleton. As a witness, I formed a favourable impression of her. She did not exaggerate her evidence or her complaints and, in my opinion, she made appropriate concessions at times. I accept her evidence that she suffers from constant right shoulder pain, managed by Panadol or Panadol Extra or at times, Panadeine Forte. I accept her evidence that she is affected by her right shoulder injury in almost every aspect of her daily life. I find she is not disabled in the sense of being unable to perform tasks but if she attempts sometimes simple tasks like combing her hair, she can experience an increase in pain in her right shoulder which is otherwise constant. I also accept that the longer the period of activity where the plaintiff is required to use her right shoulder, especially above shoulder height, then the more the right shoulder pain for her.
42 The plaintiff consulted her general practitioner, Mr Slattery, on 2 July 2013 and he has provided a number of reports. He said that when the plaintiff presented, she had multiple minor soft tissue injuries “and was also tender in the cervical spine and right shoulder”. At the time he prepared his first report on 9 July 2014 (more than a year after the accident), he reported that the plaintiff continued to be troubled by right shoulder pain. He referred the plaintiff to Mr Arogundade. Dr Slattery noted that at that time, the plaintiff’s right shoulder required “ongoing significant management”. He added that the right shoulder impacts on the plaintiff’s daily function and recreational activities, limiting her capacity to use her shoulder and limited her work.[30]
[30]PCB 20
43 In his second report of 15 March 2016, Dr Slattery reported that the plaintiff had undergone surgery “with good effect. She has had a good result as far as her right shoulder goes”. He thought the latest prognosis was good and that her condition had stabilised.[31]
[31]PCB 21
44 In his third report dated 31 October 2016, Dr Slattery reported, inter alia:
“… She has progressed well following the operations, though since July of 2016 she has noted some recurrent pain associated with this right shoulder. An ultrasound has once again shown some impingements. As such she proceeded to a repeat ultrasound guided steroid injection of her right subacromial joint and her shoulder on the 2nd of August 2016 following discussion with her Orthopaedic surgeon Mr Arogundade. Since this point in time the shoulder has improved significantly, although it still gives her some minor discomfort at times.
As such we do not classify her condition as stabilised although it has significantly improved since her operation. It does impinge her and cause a limitation of some recreational and social activities at times. This does vary depending on how it is functioning. As far as work capacity goes, she has returned to work though she is very aware of the use of her right shoulder. Though she is not on any direct restrictions at this point in time.
She continues to need to monitor this situation.”[32]
[32]PCB 21(a)
45 Mr Arogundade provided a medical report dated 15 September 2016. His report details the surgery that he carried out on 17 July 2014. He said:
“… The finding at surgery was moderate subacromial bursa thickening and a Type 2 acromium (sic), also noted was fraying bursa side supraspinatus, intact infraspinatus and subscapularis. … .”[33]
[33]PCB 31
46 Mr Arogundade thought that the prognosis was good. Interestingly, he made no comment on the recent treatment, yet Dr Slattery reported that Mr Arogundade had been consulted in relation to the plaintiff suffering further impingement in the right shoulder that required a further ultrasound-guided cortisone injection.
47 The plaintiff consulted Mr Thomas Kossmann, an orthopaedic surgeon, for medico-legal purposes on two occasions. He first reported on 26 March 2015 when he gave this prognosis:
“Ms Duncan’s prognosis regarding her right shoulder condition is guarded. She continues to have pain and movement restriction, however I believe that she will not deteriorate and there is a chance that she may improve further. In the long-term she may develop osteoarthritic changes in her right shoulder joint, for which she may have to undergo further treatment, either conservatively or operatively depending on her symptoms and the pathology. I do not believe that she will require any treatment for her survival spine condition.”[34]
[34]PCB 62
48 By the time he reported on the second occasion, Mr Kossmann had formed a different view relating to the prognosis regarding the plaintiff’s right shoulder problem. On this occasion, he painted a much more concerning picture:
“Ms Duncan’s prognosis is poor. She seems to have experienced a deterioration in her right shoulder with increasing pain and decreased mobility. This has had an effect in particular on her social, domestic and recreational activities. She was able to continue to work as a traffic controller, eight hours a week. In my opinion, Ms Duncan will require further treatment with pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possibly acupuncture. She may also become candidate for surgery, in particular if her pain issues in her right shoulder joint and movement restrictions increase. She may also develop osteoarthritic changes in her right shoulder joint, for which she may require further treatment in the future. … .”[35]
[35]PCB 69
49 Mr Kossmann’s second report was provided approximately three months before the plaintiff received her latest injection of cortisone.
50 The plaintiff was medically examined by Mr Michael Dooley, orthopaedic surgeon, on behalf of the defendant on 23 May of this year and he reported on 16 June. His evidence, in my view, confirms the kind of complaints that the plaintiff makes relating to her right shoulder. On page 4 of his report, Mr Dooley said, inter alia:
“Ms Duncan reported persisting pain in relation to her right shoulder. She had cortisone injections. She underwent subacromial decompression surgery and this provided her with definite improvement. She notes, however, ongoing right shoulder girdle pain and difficulty with overhead activity and with any heavy physical activity. She has maintained a good range of motion of the shoulder. Even following technically successful subacromial decompression surgery, patients in this situation will continue to note some intermittent shoulder girdle pain. Most patients will describe difficulty with a lot of activity at and above shoulder level and with regular heavy physical activity. Overall, there is no specific treatment that will predictably help in this regard. It is reasonable for Ms Duncan to take simple analgesia and use cold packs, massage machines, etc. I do not believe that further surgery could predictably improve her condition.”[36]
[36]DCB 75
51 In his final submissions, Mr Middleton submitted that the video surveillance of the plaintiff showed that she could move freely and it appeared her work was unaffected by claimed pain in her right shoulder. I formed the view that the video surveillance of the plaintiff was of little help in assessing the consequences for the plaintiff from her injury. I accept her evidence that she is in constant pain in her right shoulder when she works, and I accept her evidence that this pain level increases with a long day at work, requiring her to take analgesic medication.
52 I accept the plaintiff’s evidence generally as to the consequences for her generally resulting from an injury to her right shoulder in the accident. In her affidavits, she has detailed how most aspects of her life have been affected, including her ability to sleep. I accept that evidence. I accept that the plaintiff told Mr Kossmann that she can lie on her right side. But I also accept her evidence that once she falls asleep on her right side, she is likely to awake because of right shoulder pain.
53 Mr Middleton submitted the plaintiff has had very little treatment and is on a relatively light medication regime. I disagree. The plaintiff’s right shoulder injury is persistent. The accident occurred on 30 June 2013. For more than a year attempts were made to have it settle conservatively through use of physiotherapy and steroid injections. That failed. In July 2014, she underwent arthroscopic surgery, and I have detailed that above. The surgeon was optimistic of a good outcome but that has not turned out to be the case. The plaintiff has continued to complain of a painful right shoulder and limitation of movement, especially above shoulder height. In August of this year, more than two years after the accident, the plaintiff received an ultrasound-guided cortisone injection into the right shoulder because of ongoing impingement. I accept the plaintiff’s evidence that that last injection initially gave her some relief but as its effects have worn off, the pain has returned.
54 I find that in the transport accident that occurred on 30 June 2013, the plaintiff suffered an injury to her right shoulder in the form of a rotator cuff-type injury that required surgery which has not relieved her fully of pain and she is left with ongoing pain and some limitation of movement in the right shoulder, especially above shoulder height. I find the injury in her right shoulder is permanent, in the sense that it is likely to last into the foreseeable future. The consequences for the plaintiff are set out in her affidavits, which I accept. Most aspects of her daily life have been affected by this injury. To be “serious” the consequences of the injury must be serious to the plaintiff. In my view, when judged by comparison with other cases in the range of possible impairments or losses, the injury to the plaintiff’s right shoulder can be fairly described as “very considerable” and, certainly more than “significant” or “marked”. The plaintiff has discharged the onus that she bares of proving these matters.
55 The plaintiff is granted leave pursuant to s93(4)(d) of the Act to commence a proceeding against the defendant.
56 I will hear the parties on the question of costs.
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