Dutz v TAC
[2022] VCC 561
•29 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-04526
| ERICA DUTZ | Plaintiff |
| v | |
| TRANSORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 & 8 June 2021 | |
DATE OF JUDGMENT: | 29 April 2022 | |
CASE MAY BE CITED AS: | Dutz v TAC | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 561 | |
REASONS FOR JUDGMENT
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Subject:Transport accident
Catchwords: Serious injury; Disentanglement; Consequences
Legislation Cited: Transport Accident Act 1986 Section 93
Cases Cited:Shock Records v Jones [2006] VSCA 180; AG Staff Pty Limited v
Filipowicz [2012] 34 VR 309; Stijepic v One Force Group Aust Pty
Ltd & Anor [2009] VSCA 181; TTB SMS Pty Ltd v Reading [2020]
VSCA 203; Sumbul v Melbourne All Toya Wreckers [2006] VSCA
292; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Ms K. Bradey | Slater & Gordon |
| For the Defendant | Mr W.R. Middleton QC With Ms J. Clark | TAC Legal |
HIS HONOUR:
Introduction
1Dr Erica Dutz is a 55 year old specialist anaesthetist who was involved in a transport accident on 5 September 2016. She was crossing Raleigh Street in Essendon as a pedestrian when she was struck on the left side by a passing vehicle. There is no real dispute as to the circumstances of the transport accident. It is also common ground between the parties that Dr Dutz had been receiving physiotherapy treatment for a work-related foot injury just prior to the transport accident.
2As a consequence of the transport accident Dr Dutz claims an impairment or functional loss of the left shoulder. She seeks leave in accordance with s 93(4)(d) of the Transport Accident Act 1986 (“the Act”) to claim damages at common law on the basis that the injury to her left shoulder is a serious injury when assessed in accordance with the statutory definition set out in paragraph (a) of s 93(17) of the Act.
3Mr Tobin SC, who appeared with Ms Bradey on behalf of the plaintiff, described in some detail the matters relevant to both pain and suffering consequences and impairment of Dr Dutz’s earning capacity, which was said to justify the grant of leave.
4Mr Middleton QC, who appeared with Ms Clark on behalf of the defendant, described the main issue between the parties as identifying the extent to which the left shoulder injury had resulted in consequences which could fairly meet the statutory threshold. Mr Middleton QC described the application broadly as a “range case” and did not concede that pecuniary disadvantage could be proved by the plaintiff. Insofar as the remaining consequences were concerned, it was for the plaintiff to “disentangle” in accordance with the well-recognised authorities of Peak Engineering & Anor v McKenzie[1] and Shock Records Pty Ltd & Anor v Jones.[2]
[1][2014] VSCA 67
[2][2006] VSCA 180
5It was common ground between the parties that Dr Dutz had suffered from a variety of medical conditions pre-dating both the transport accident and the earlier work‑place injury. It was also agreed that the work-place injury suffered in September 2015 resulted in a Lisfranc injury to the right foot whilst she was working as an anaesthetist at the Western Mercy Hospital. She had undergone four surgical procedures and developed a complex regional pain syndrome. She was continuing to suffer pain and restrictions as a result of that earlier injury, both at the time of the transport accident and the hearing of the present application.
6The hearing proceeded via audio visual link with Dr Dutz the only witness required for cross-examination. The further evidence was tendered by the parties from the joint court book.
The lay evidence
7Dr Dutz had sworn three affidavits in support of her application on 30 December 2019,[3] 30 January 2021,[4] and 28 May 2021.[5] Additionally an affidavit had been sworn by her on 30 October 2019 for the purpose of her WorkCover application. This was also tendered into evidence by Mr Tobin SC.[6]
[3]Exhibit B, pp 9-13
[4]Exhibit B, pp 14-17
[5]Exhibit B, pp 18-19
[6]Exhibit B, pp 55-68
8Mr Tobin SC also tendered into evidence a photograph of the intersection where the transport accident occurred.[7]
[7]Exhibit A
9Dr Dutz’s affidavit sworn in relation to the WorkCover proceeding (“the WorkCover affidavit”) sets out a useful background to describe her employment capacity and overall health status prior to the transport accident. That incident occurred on 10 September 2015 when Dr Dutz tripped over some cords in an operating theatre:
“… and I landed with all my weight on my right foot and hurting it.”[8]
[8]Exhibit B, p 57 [18]
10Following a lengthy period with the foot immobilised in a moon boot, she was referred to Mr William Edwards, orthopaedic surgeon, who diagnosed a Lisfranc injury of her right foot. She underwent surgery to reconstruct the foot on 2 March 2016, with further surgery to remove the metal-wear and revise the reconstruction performed in late August 2016. Two further surgical procedures were performed on Dr Dutz’s foot in March 2017 and April 2018.[9]
[9]Exhibit B, pp 57-58 [19] to [25]
11In the WorkCover affidavit Dr Dutz deposes to developing a chronic regional pain syndrome which was a cause of severe neuropathic foot pain. At the time of swearing that affidavit she was taking a variety of painkilling medications and undergoing physiotherapy and hydrotherapy.
12Dr Dutz’s affidavit referred in considerable detail to the adverse consequences, both in terms of pain and suffering and her capacity for employment, which had occurred subsequent to her foot injury.[10]
[10]Exhibit B, pp 60-64 [49] to [69]
13The WorkCover affidavit also made reference to the shoulder injury sustained in the transport accident and its consequences for her at that time.[11]
[11]Exhibit B, p 57 [16]; p 58 [29] to [30]; p 59 [31] to [33] & [39]; p 60 [47] to [48]
14In addition the WorkCover affidavit makes further comments about the then current restrictions consequent upon the left shoulder condition. Understandably these are not the primary focus in that affidavit, and it is unnecessary to refer to them in detail.
15Dr Dutz’s first affidavit sworn in relation to the present application (“the first transport accident affidavit”) again sets out details of her history, including the right foot injury suffered in September 2015. She specifically described her current symptoms emanating from her left shoulder at that time. These symptoms included constant low level pain which increased with lifting, pushing and pulling and repeated subluxation of the shoulder joint, again resulting in increased pain.[12]
[12]Exhibit B, p 12 [25] to [26]
16She also made references to the pain and suffering consequences resulting from her left shoulder injury, including difficulties with swimming, sleeping and elevating her left arm. She also made reference to restrictions in the performance of her professional duties resulting from the left arm.[13]
[13]Exhibit B, p 13 [28] to [31]
17In her second transport accident affidavit (“second transport accident affidavit”) sworn 30 January 2021, Dr Dutz made reference to suffering a fracture on the left hand in late October 2020. She had been treated by an orthopaedic surgeon who advised conservative treatment. She was at that time wearing a splint which made it difficult for her to do exercises normally required for her shoulder. Dr Dutz made reference to taking anti-neuropathic medication, although it appeared that this was taken for both the right foot and left shoulder symptoms.[14]
[14]Exhibit B, p 15 [7]
18In the second transport accident affidavit Dr Dutz again described the restrictions caused by her ongoing left shoulder difficulties in relation to her professional duties as an anaesthetist.[15]
[15]Exhibit B, pp 15-17 [8] to [16]
19Dr Dutz swore a third affidavit on 28 May 2021 (“third transport accident affidavit”). In that affidavit she described her left wrist injury as steadily improving:
“I no longer wear a splint and I would describe my wrist symptoms as being 95% resolved. The wrist injury no longer impacts my work tasks.”[16]
[16]Exhibit B, p 18 [2]
20She also deposed to wishing to return to competitive swimming at a Masters level, stating:
“I believe that I would have been able to do this and to compete effectively, but due to my left shoulder injury I have not been able to pursue this.”[17]
[17]Exhibit B, p 18 [3]
21Finally Dr Dutz made reference in her third affidavit to undertaking a management course which would provide an alternative career pathway, but would result in lower earnings:
“… because there would no longer be the opportunity to obtain shift allowances, on-call payments or overtime.”[18]
[18]Exhibit B, p 18 [4]
22When cross-examined the following matters emerged relevant to the determination of this application:
· Irrespective of the left shoulder injury, Dr Dutz would continue taking medication for her right foot injury.[19]
[19]Transcript (“T”) 12, Line (“L”) 29 to T 13, L 1
· She believed her left shoulder was struck by the right-hand side door mirror in the transport accident.[20]
[20]T 13, L 2 to T 14, L 14
· Following the transport accident her primary concern was for her right foot, which had been operated on some ten days previously. She first saw her general practitioner in relation to the shoulder on the following day.[21]
[21]T 14, L 16 to T 15, L 11
· When further cross-examined with reference to clinical notes, Dr Dutz later agreed that she had first sought treatment in relation to her shoulder and her right foot on 12 September 2016, one week following the transport accident.[22]
[22]T 19, L 11-19
· Dr Dutz agreed that she had received some physiotherapy, including taping of the shoulder, and had been referred to Mr Lyons, an orthopaedic surgeon.[23]
[23]T 20, L 3 to T 21, L 29
· Dr Dutz agreed that as at the hearing date she had very close to a full range of movement in the shoulder.[24]
[24]T 22, L 6-9
· Dr Dutz agreed that the provisional diagnosis was that of a frozen shoulder. She had previously experienced a frozen right shoulder when undergoing radiation treatment some years previously:
“The clinical features were not identical, they weren’t similar.”[25]
[25]T 24, L 5-15
· She agreed that she had suffered a dislocation to the left shoulder in August 2017 after lifting a large pot plant at her home. She believed she had experienced numerous subluxations, but this 2017 incident was a discrete dislocation.[26]
[26]T 26, L 1 to T 27, L 15
· Dr Dutz had received steroid injections in September 2016 and April 2017 which did not have any lasting impact on the condition of her left shoulder.[27]
[27]T 28, L 8-15
· She denied having any previous subluxation or dislocation to her left shoulder, although admitted to some tendinopathies when she was swimming competitively as a teenager.[28]
[28]T 29, L 7-21
· Dr Dutz had swum and played water polo at an elite level in Canada. She agreed she had not swum or engaged in competitive water polo after arriving in Australia in 1996. Although she had not competed, she had regularly gone swimming recreationally.[29]
[29]T 30, L 3-22
· Dr Dutz agreed that she had only seen Mr Lyons, an orthopaedic surgeon, on one occasion in 2016 and Mr Price, orthopaedic surgeon, on two occasions in September 2017.[30]
[30]T 35, L 5-21
· Dr Dutz agreed that she faced ongoing restrictions in her employment, being required to wear orthotics and take regular rest breaks due to her right foot injury.[31]
[31]T 38, L 4-27
· The medical certificates did not relate to Dr Dutz’s left shoulder injury.[32]
[32]T 39, L 7-31
· Dr Dutz agreed she did not resume activities renovating her home between the time of the foot injury in September 2015 and the transport accident in September 2016.[33]
[33]T 42, L 30 to T 43, L 4
· Dr Dutz agreed that following the fourth surgery on her right foot on 9 April 2018 she undertook a gradual return to work.[34]
[34]T 44, L 9 to T 45, L 26
· Dr Dutz agreed that the ongoing problems related to her right foot impacted her mobility and her capacity to be on her feet:
“… I can conduct my work, when I get to the location where I perform it.”[35]
[35]T 46, L 5-26
· She further agreed that as a result of her foot injury, her previous roster of 24 hour on-call shifts was changed to two 12 hour shifts split across two days.[36]
[36]T 47, L 8-18
· Dr Dutz agreed she had returned to 12 hour shifts, which would sometimes extend to 14 hour shifts from August 2019.[37]
[37]T 49, L 6-30
· At the time of this application Dr Dutz was currently working a minimum of 25 hours and a maximum of approximately 48 hours per week at the Mercy Hospital. She was not currently working at the Epworth Freemasons ICU:
“I had worked a few shifts in a moon boot and I don’t remember going back after having had the motor vehicle accident.”[38]
[38]T 50, L 5-31
· Dr Dutz maintained that her earnings had decreased since the motor vehicle accident:
“… I have missed out on on-call and remuneration from chief of service activities.”[39]
[39]T 51, L 5-12
· Dr Dutz agreed with gross earnings figures ranging between $281,000 in 2015, prior to the foot injury, to $329,424 in the 2020 financial year. She agreed that the splitting of her shifts at the Mercy Hospital was related to her foot injury. She further stated:
“I used to be able to pick up another shift at the Freemasons after doing a 24 hour shift but now I can’t because I am doing 24 hours over two days.”[40]
· Dr Dutz maintained that the shoulder injury significantly contributed to her performance at work:
“Since recovering from the foot, as more time has gone on, I am able to manage my foot injury better. It still is a problem, but what I am finding is that it is the combination of the two, the two contribute, but for different reasons, to my ongoing restrictions … but they do contribute separately in different aspects of function.”[41]
· Dr Dutz was taken to a series of WorkCover medical certificates in 2019 and 2020 and agreed that the majority of those certificates referred to the foot injury with brief reference to the shoulder in June and November 2020.[42]
· She further agreed that the last investigation on her shoulder occurred when she saw Dr Price in September 2017. Her physiotherapist was treating her for the right foot at the time of the transport accident, and she was then having dual appointments for both the shoulder and the foot.[43]
· Dr Dutz agreed that the 2020 injury to her left thumb impacted on her ability to work whilst the hand was splinted for a period of about six weeks. She agreed she was still providing certificates of incapacity relating to the left hand injury at the time of the application.[44]
· She disagreed with the proposition that in terms of activities of daily living her foot and left wrist injury have affected her in more ways than the left shoulder injury.[45]
· In relation to her swimming, she had returned to this activity following the foot injury:
“As soon as I was allowed back in the pool after my surgeries. So it formed a part of my rehab.”[46]
[40]T 51, L 19 to T 53, L 2
[41]T 53, L 5 to T 54, L 6
[42]T 57, L 6 to T 58, L 13
[43]T 58, L 31 to T 59, L 21
[44]T 59, L 19 to T 60, L 18
[45]T 60, L 28-30
[46]T 63, L 1-28
23When Dr Dutz was re-examined she gave further evidence as follows:
· She was not currently doing lap swimming due to the pandemic. She described her problem with that activity as due to her shoulder:
“When I reach for my stroke my shoulder feels unstable.”[47]
· In relation to her work as an anaesthetist she described her shoulder as requiring her to:
“… do a lot of adaptation.
…
It does by nature of the fact that you don’t have assistance around – if you get a very difficult situation and you can’t compensate then you don’t have any assistance. I think the concern is patient safety.”[48]
· Since the transport accident Dr Dutz had worked almost exclusively at the Werribee Mercy Hospital. She had previously worked at that hospital and Epworth Freemasons:
“I find it an unacceptable risk that I am concerned about being able to … at Freemasons you are often the only doctor that’s on duty, you have to do everything … If I can’t secure a difficult airway, there’s no one to come and assist me.”[49]
· She did not recall having any problem with subluxation of the left shoulder prior to the transport accident.[50]
· In relation to medication she had continued to take the same medication for her foot:
“… with the shoulder I am increasingly having to take doses of Panadol and Voltaren … Because I am having more problems with pain with the left shoulder.”[51]
[47]T 64, L 30 to T 65, L 5
[48]T 65, L 15-31
[49]T 68, L 7-31
[50]T 69, L 19 to T 70, L 8
[51]T 71, L 8-15
24Finally in re-examination Dr Dutz identified a photograph of the scene of the transport accident.[52]
[52]Exhibit A
The medical evidence
25Mr Tobin SC tendered in evidence reports from the regular treating general practitioner, Dr Christopher McHardy, and the two treating orthopaedic surgeons, Mr Frank Lyons and Mr Rohan Price.[53] Two MRI reports relating to the left shoulder in November 2016 and September 2017 were also tendered in evidence.[54] The medical records from the Travancore Clinic relating to consultations between May 2015 and December 2020 were also tendered on behalf of the plaintiff.[55]
[53]Exhibit B, pp 26-31
[54]Exhibit B, pp 23-25
[55]Exhibit B, pp 69-107
26In addition to material from the treating practitioners, two medico-legal reports from Mr Ash Moaveni dated 26 August 2019 and 13 January 2021 were tendered into evidence.[56]
[56]Exhibit B, pp 32-43
27Mr Middleton QC on behalf of the defendant tendered a single medico-legal report from Mr Brett Halliday, orthopaedic surgeon, dated 17 March 2021.[57] He also tendered various WorkCover certificates of capacity between 28 August 2020 and 18 November 2020, to which reference had been made during cross‑examination.[58] A further document described as a health summary sheet and completed by Dr Dutz on 2 August 2004 was also tendered into evidence.[59]
[57]Exhibit 1, pp 44-54
[58]Exhibit 1, pp 108-115
[59]Exhibit 1, p 116
28The totality of the medical opinions can be summarised quite shortly.
29Mr Lyons reported to Dr Dutz’s general practitioner on 6 December 2016 after noting her complaints of “a defuse ache in the shoulder and discomfort when lying on it at night” together with worsening of pain if she over-stretches. He made reference to the initial MRI and stated:
“The MRI did suggest there may be some inflammatory thickening of parts of the shoulder joint capsule. That would be consistent with my observations.
I have reassured Erica that despite the persistence of these symptoms, I can not see any evidence of serious underlying pathology other than the possible capsulitis. There are certainly no surgical issues evident.”[60]
[60]Exhibit B, pp 26-27
30He recommended a conservative approach:
“I think it would be safe for her to push on with a steady as she goes approach at this stage. More often than not one would expect these type of symptoms to settle in the fullness of time.”[61]
[61]Exhibit B, p 27
31Dr Dutz was then referred to Mr Price who saw her on 7 September 2017 and requested a further MRI examination of the shoulder. After reviewing the MRI he wrote to Dr McHardy on 28 September 2017 stating:
“Her MRI was largely normal except for a subtle anterior labral tear. I’m inclined to manage this non-operatively for the moment with a focus on improving her peri-scapular control and avoidance of apprehensive arm positioning. She was happy with that plan. Hopefully we can avoid surgery in the future.”[62]
[62]Exhibit B, p 29
32Dr McHardy provided a report to the plaintiff’s solicitors on 5 May 2021. His diagnosis was recorded as follows:
“soft tissue injury to shoulder
Likely Bankart lesion which predisposes to dislocation
inflammation of subacromial bursa and other tendons of the shoulder
This injury has resulted in recurring painful weak shoulder with a tendency to dislocation/subluxing of the shoulder.”[63]
[63]Exhibit B, p 30
33The report went on to state:
“Dr Dutz has a painful left shoulder with a tendency to dislocate/sublux. This reduces her confidence in the reliability of her shoulder during physical activities, including her work as a specialist anaesthetist. Therefore she is forced to restrict her movement when performing her work and activities of daily living.”[64]
[64]Exhibit B, p 30
34Mr Ash Moaveni first examined Dr Dutz on 22 August 2019 and reported to her solicitors on 26 August 2019.[65] At that stage he diagnosed her injury as:
“Anterior instability left glenohumeral joint shoulder.”[66]
[65]Exhibit B, pp 32-33
[66]Exhibit B, p 33
35In his report he noted ongoing instability in the left shoulder, particularly when placed in an overhead position or when performing activities involving weights and repetition.[67]
[67]Exhibit B, p 33
36Mr Moaveni re-examined Dr Dutz on 13 January 2021 and reported to her solicitors on the same date.[68] On that occasion he again noted the plaintiff’s complaints of pain of varying intensity in the left shoulder, worsened with movement or loading. Mr Moaveni also noted Dr Dutz’s complaints of instability in the shoulder and difficulty in sleeping.[69]
[68]Exhibit B, pp 34-43
[69]Exhibit B, p 38
37He again diagnosed her as suffering from “anterior instability left glenohumeral joint shoulder” and described her prognosis as poor.[70] Mr Moaveni also commented on the impact of Dr Dutz’s shoulder condition, both in terms of her activities of daily living and her ability to undertake responsibilities of an anaesthetist.
[70]Exhibit B, p 41
38The only medical report relied upon by the defendant was that from Dr Brett Halliday, orthopaedic surgeon, who examined Dr Dutz on 5 March 2020 and reported to the Transport Accident Commission on 17 March 2020.[71] Dr Halliday again took a history from Dr Dutz that she had ongoing issues with her left shoulder:
“She states it feels ‘loose’. If she lifts anything heavy at the gym or at home the pain is increased. She feels as though it slides inferiorly out of joint. She feels like she has no control at the extremes of movement. It hurts to swim, something which she enjoyed doing a lot previously. At work in her role as a VMO anaesthetist, she finds that if she has to intubate with a difficult airway and prolonged elevation with her left hand using a laryngoscope, her shoulder becomes painful. She suffers with pain at night if she lies on that side.”[72]
[71]Exhibit 1, pp 45-54
[72]Exhibit 1, p 48
39Dr Halliday diagnosed the shoulder condition as follows:
“The shoulder condition is most likely related to the motor vehicle accident. It is best described as a probable labral injury from subluxation of the shoulder at the time of the incident.”[73]
[73]Exhibit 1, p 50
40He went on to comment that he accepted Dr Dutz has some ongoing subluxation of the shoulder due to recurrent instability as a result of the motor vehicle accident.[74]
[74]Exhibit 1, p 51
41Dr Halliday accepted Dr Dutz’s complaints of difficulties at the extremes of movement and with prolonged overhead activity or heavy lifting. In terms of her activities of daily living, he further commented that she required minimal assistance, if any, at home.[75]
[75]Exhibit 1, p 52
42Dr Halliday had been provided with Mr Moaveni’s initial report which noted an inability for Dr Dutz to continue working in the intensive care unit because of her shoulder symptoms. He disagreed with that opinion stating:
“In my opinion, she could undertake any medical occupation she chooses regardless of her shoulder condition. It is heavy physical labouring activities that she would struggle with because of her shoulder. It is her foot injury that is precluding her from returning to the intensive care unit work. In my opinion as far as the shoulder is concerned, she could continue to work full time as an anaesthetist.”[76]
[76]Exhibit 1, p 52
Analysis
43I regarded Dr Dutz as an impressive witness, notwithstanding the comments made in final address by Mr Middleton QC. I do not believe she attempted to obviscate during cross-examination. I do accept the submissions made by Mr Middleton QC that the authorities require the court to embark on a complex enquiry in circumstances where a claimant has suffered multiple injuries to different parts of their body over a period of years. The question of disentanglement can, and frequently does, provide an impediment to a plaintiff seeking leave.
44In Dr Dutz’s case she has at all times accepted that the Lisfranc injury to her right foot sustained in September 2015 has severely impacted her mobility, her lifestyle and her ability to practice her professional duties as an anaesthetist to the extent that she would wish.
45I am assisted in her current application by the fact that she has sworn separate affidavits on 30 October 2019 in respect of the present application, and the application seeking leave in relation to the right foot injury.[77]
[77]Exhibit B, pp 9-13 & 55-68
46I accept that her recovery from the foot injury was far from complete at the time of the transport accident in September 2016. As Dr Dutz accepts, she was returning from a physiotherapy appointment at the time she was struck by the motor vehicle. The essential question for the court is to determine both the pain and suffering and pecuniary loss consequences that were impacting Dr Dutz at the time of the transport accident and then make a further assessment of those consequences persisting on a long-term basis as at the date of the hearing.
47A further complication in relation to the present application arises from the fracture to Dr Dutz’s left trapezius occurring in October 2020.
48Dealing first with that issue, I find that the fractured trapezius has not caused long‑term consequences for Dr Dutz in terms of pain and suffering or pecuniary disadvantage. There is very little medical material relating to the left trapezius injury, although it is noted by Mr Moaveni in his most recent report.[78] There is also reference in Dr McHardy’s clinical notes noting the injury on 29 October 2020 and referring her to a hand surgeon, Mr Timothy Bennett, on 18 November 2020.[79]
[78]Exhibit B, p 36
[79]Exhibit B, pp 105-107
49I accept Dr Dutz’s evidence that she was restricted by reason of the left thumb injury for a period of approximately six weeks while the hand was splinted. I note the evidence by Dr Dutz that she was still providing certificates of incapacity to her employer as at the date of the hearing. Nevertheless there is no medical evidence to suggest that she would suffer adverse consequences from this injury in the long‑term.
50During the course of final address Mr Middleton QC referred to a number of decisions including Shock Records v Jones[80] and AG Staff Pty Limited v Filipowicz.[81]
[80][2006] VSCA 180
[81][2012] 34 VR 309
51Filipowicz sets out the procedure to be followed when a person suffers from separate injuries as in the present case. The court must first identify each injury. Secondly, the consequences in terms of impairment of each injury must be delineated. Thirdly, where the injury is said to be an aggravation of an original injury (which is not the case here) a determination should be made as to whether the relevant injury satisfies the serious injury threshold. Fourthly, the court must make a comparison of the plaintiff’s condition before and after the injury occurring later in time and additionally make an assessment of the additional impairment. Finally, where injuries arise from separate incidents, they cannot be accumulated. Each injury must satisfy the requirements of the statutory definition in its own right rather than in combination one with the other.
52In the earlier decision of Shock Records v Jones the Court of Appeal emphasised the requirement for the court to be satisfied that the injury relied upon of itself caused the relevant loss of earning capacity, or in this case pain and suffering consequences, which would require the court to exclude the contribution of other medical conditions in that process.
53Mr Middleton QC additionally referred to Stijepic v One Force Group Aust Pty Ltd & Anor[82] and TTB SMS Pty Ltd v Reading[83] as further authority for the procedure to be followed when assessing an application of this type. Stijepic considered the issue of the effect that a successful return to work would have upon an application for leave based upon the pain and suffering consequences of the relevant injury. The Court of Appeal stated, with reference to earlier comments in a decision in Sumbul v Melbourne All Toya Wreckers[84]
“… it is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative again a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered.”[85]
[82][2009] VSCA 181
[83][2020] VSCA 203
[84][2006] VSCA 292
[85]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at [47]
54A more recent decision of TTB SMS involved a finding by the court that a judge had wrongly applied the principles relevant to these applications in concluding that a worker who had suffered an injury to two fingers in an industrial accident had satisfied the relevant test. The court stated:
“Whilst these impairments are certainly not trivial, in our view, they cannot be fairly described as ‘at least very considerable’. The evaluation required of the trial judge, and this Court, involves a comparison of the worker’s impairment not just with other impairments of the hand, but also with other types of physical impairment that may be suffered, including impairment of the brain, the spine and large joints such as the knee and shoulder. Those other physical impairments may involve constant pain, significant medical treatment and medication. They may involve sleep deprivation, or an inability or reduced ability to socialise or work.”[86]
[86]TTB SMS Pty Ltd v Reading [2020] VSCA 203 at [31]
55In terms of the factual findings in this case, I am satisfied that as a consequence of the right foot injury suffered in September 2015, Dr Dutz has been very significantly impaired in terms of her mobility, and as a direct consequence of that impairment her working hours have been modified, particularly to the extent that she is required to work two 12 hour shifts on separate days rather than a continuous 24 hour period of on-call. Notwithstanding her own evidence that she has attempted to modify her activities to compensate for this ongoing impairment, I cannot be satisfied that the injury to her shoulder, being a soft tissue injury to the labrum, has impacted on that aspect of her employment.
56Further, in terms of the medication required in respect of her right foot injury, I am satisfied that the serious nature of that injury, the four separate surgeries and the development of a chronic pain syndrome, have necessitated Dr Dutz to take powerful analgesic medication, albeit at decreasing dosages as time has passed.
57In respect of the left shoulder injury, I accept that she has taken paracetamol for her shoulder, but the ingestion of this type of medication is not significant when compared with the analgesic medication which has been prescribed for her in respect of the right foot injury.
58Dr Dutz accepted in cross-examination that the foot injury had impacted on her ability to sleep largely due to the levels of pain and the need to use a device such a pillow to obtain a comfortable position when sleeping.
59I do accept that in addition to the difficulties with sleep resulting from the right foot injury, she has suffered a further and additional adverse consequence as a result of the left shoulder injury. This of itself is only relatively minor, but is nevertheless relevant to an overall assessment of pain and suffering consequences.
60Of more significance I accept Dr Dutz’s evidence that she suffers from a degree of instability of the left shoulder as a consequence of the transport accident, this being particularly illustrated when the shoulder dislocated whilst lifting a pot plant in 2017. At that stage she sought the assistance of a second orthopaedic surgeon, Mr Price, but without any long-term positive outcome.
61I additionally accept that for a 55 year old woman living alone, the pain produced by elevation or forceful activities with the left shoulder must be assessed as a very significant consequence for her in terms of her activities of daily living. Further, this pain and instability has, in my view, resulted in an inability for her to return to swimming. In reaching this conclusion I have taken into account the matters to which I have referred in Filipowicz. I do accept that Dr Dutz had previously been impaired in swimming by reason of her right foot activity. Nevertheless I accept her evidence that it is the potential of the shoulder to sublux which has restricted her from that activity and is likely to do so into the foreseeable future. A loss of such an activity to a woman who had previously completed in water polo and swimming at an elite level must be regarded as significant.
62I cannot accept that the injury to Dr Dutz’s left shoulder is a present cause of her reduced working hours. Nevertheless I do accept her evidence that the difficulty in using the shoulder for particular postures such as when using a laryngoscope must impact on her ability to perform certain activities as an anaesthetist on an unassisted basis. As such I am satisfied that it is a consequence at least in terms of pain and suffering, which restricts her ability to seek employment at particular hospitals where she would be required to work in that fashion. I do not find that this impairment has to date been productive of pecuniary disadvantage, but I am satisfied that it does effectively restrict the range of employment opportunities which would otherwise be available to her absent the left shoulder injury.
63I accept that Dr Dutz has been well motivated in terms of her return to employment and activities of daily living. I am mindful of the comments made by the Court of Appeal in Dwyer v Calco Timbers Pty Ltd (No 2)[87] that it would be unfortunate if a person who had displayed a degree of stoicism was “treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[87][2008] VSCA 260 at [3]
64The degree of fortitude and stoicism displayed by Dr Dutz becomes more obvious when an analysis is made of her long-term medical history. She has been unfortunate enough to suffer from breast cancer requiring significant treatment in 2004 and 2008. She has undergone a lung operation, wedge resection and thoracoscopy for a hamartoma which is unrelated to her shoulder condition.[88]
[88]As recorded by Dr Halliday, Exhibit 1, p 47
65Notwithstanding the criticism made of Dr Dutz for failing to call evidence from her physiotherapist, I am not prepared to draw an inference adverse to her in the circumstances of the present case. The plain fact is that all doctors, including the defendant’s only medio-legal consultant, accept that there is an ongoing problem in the left shoulder consistent with Dr Dutz’s recorded complaints.
66The final stage in the assessment of this application is one of relevant comparison as considered by the Court of Appeal in TTB SMS. In my view the persistence of the left shoulder complaint from 2016 to the present day, with a likelihood that it will continue indefinitely into the future, satisfies the requirement for a long‑term consequence. A comparison with a range of other or possible impairments must, for the applicant to succeed, tend to a conclusion that the consequences suffered by Dr Dutz when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being more than significant or marked and as being at least very considerable.
67In my assessment the ongoing consequences, particularly in terms of the instability of the shoulder joint, the potential for continued and repeated subluxations, the impact on her activities of daily living as a person living alone, the impact on her recreational activity of swimming, together with the difficulties caused by the shoulder condition in terms of her employment potential, must lead to a conclusion that the consequences of the shoulder injury when judged alone can be fairly described as at least very considerable.
68It should be noted that there was no argument seriously advanced on behalf of Dr Dutz that the injury to her right foot had resulted in any lesser consequences. Indeed when fairly assessed the injury to her foot has produced consequences of greater severity than those resulting from the shoulder injury. Notwithstanding such a comment, I am satisfied that she has made out her application for leaving in respect of the left shoulder injury.
Conclusion
69I grant leave to the plaintiff in accordance with the provisions of s 93(4)(d) of the Act on the basis that her left shoulder injury is a serious injury as defined in s 93(17) of the Act.
70I further order the defendant to pay the plaintiff’s costs of the application on a standard basis.
71I reserve leave to the parties to apply in relation the specific form of the orders sought or in relation to the question of costs and any certification sought.
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