Engidoshet v Transport Accident Commission
[2017] VCC 1933
•30 October 2017 (revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-01680
| ALEMINESY ENGIDOSHET | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 19 September 2017 | |
DATE OF JUDGMENT: | 30 October 2017 (revised) | |
CASE MAY BE CITED AS: | Engidoshet v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1933 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – impairment to the left shoulder and left thumb
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards & Anor v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511
Judgment: Applications dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J M Forbes QC with Ms A R C Spitzer | Maurice Blackburn |
| For the Defendant | Mr P Y Rattray QC with Mr P J Gates | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 8 May 2010 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3
The definition of “serious injury” relied upon by the plaintiff is under
s93(17)(a) – “a serious long term impairment or loss of a body function”.
4 The body functions pursuant to sub-paragraph (a) relied upon by the plaintiff are the upper left limb/shoulder and the left thumb.
5 The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.[1]
[1]See Richards & Anor v Wylie (2000) 1 VR 79
7 In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as “at least very considerable” and “more than significant” or “marked”.[2]
[2]See Humphries & Anor v Poljak [1992] 2 VR 129 at paragraphs [140] – [141]
8 The plaintiff affirmed two affidavits and was cross-examined with the assistance of an Amharic interpreter. She also relied on an affidavit affirmed by her husband, Asres Teferi, on 30 August 2017, her daughter, Segenet Kassie, affirmed 7 August 2017, and an affidavit sworn by the interpreter, Bedellu Desta, on 18 September 2017.
9 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
10 The plaintiff is presently aged sixty-nine, having been born in Ethiopia in January 1948.
11 The plaintiff did not attend school. She was married to her husband in an arranged marriage at the age of nine. They subsequently had three daughters and four sons. The plaintiff has always worked in home duties, raising her children and looking after the house.
12 The plaintiff’s family came to Australia as refugees in 2005 and settled in Adelaide, where half their children and grandchildren still live. Save for the second daughter who has been unable to leave a refugee camp in Sudan, the remaining children live in Melbourne. The plaintiff has been unable to see this daughter since the family came to Australia.
13 The plaintiff did not think she had a mental illness as a result of her daughter being in a refugee camp but she worried and thought about her daughter all the time and sometimes she felt helpless because she could not help her own child.[3] The plaintiff has been trying to bring her daughter out to Australia since they arrived here.[4]
[3]Transcript (“T”) 14
[4]T15
14 The plaintiff was cross-examined about a fire at her home in Adelaide in 2007. She was scared and disturbed after the fire but after she moved to Melbourne she was okay. She was feeling better after she left Adelaide. She did not know when she stopped treatment in Adelaide before leaving for Melbourne after the fire. She could not remember what doctor she was seeing at that time.[5]
[5]T10
15 As at the said date, the plaintiff looked after the home where she and her husband lived with one of their daughters and their grandson. Her grandson has recently moved out.
16 Prior to the said date, the plaintiff was very busy, looking after her family and house, but occasionally enjoyed a coffee with friends, watching television and pottering around the house.
17 Before the said date, the plaintiff could remember seeing Dr Ansari, her family doctor in Melbourne. She was probably prescribed tablets by him but she did not know what they were for. She agreed she was then having nightmares about the fire. Whilst in Adelaide, especially soon after the fire, she was reliving the experience of the fire and used to have nightmares. Even when she was awake, she was sometimes scared.[6]
[6]T12
18 Basically, the plaintiff was not comfortable by herself, regardless of the effects of the fire, but the fire “aggravated” her fear. Soon after she arrived in Melbourne, her fear lessened but it was there, but she gradually “was free of it”. By the time she arrived in Melbourne, the plaintiff was not having panic attacks as much as she did in Adelaide.[7]
[7]T12
19 The plaintiff has never been able to use public transport because she cannot read numbers and has to be with someone, otherwise she gets lost.[8]
[8]T13
20 When asked about any physical problems before the said date, the plaintiff described an issue with her right shoulder when she was hit by a rock when she was a young girl. She believed her right shoulder was not a problem when she came to Australia and the pain had gone away by that time.[9]
[9]T16
21 The plaintiff could not remember her right shoulder being investigated in late 2009 or three right shoulder injections around that time. The interpreter then explained the plaintiff was actually surprised that had happened and asked whether someone had made a mistake. The plaintiff then asked would that have happened without her knowing it? She always had aches on her joints “here and there” and she took medication[10] to reduce the aches.[11]
[10]Dr Ansari’s note of 4 March 2010 – prescribed Panadeine Forte and Mobic for right shoulder pain
[11]T17
22 The plaintiff could not remember her daughter applying to be her carer in 2009 but she was then in need of help and she wanted her daughter to help her.[12]
[12]T13
The accident
23 On the said date, the plaintiff was a left-sided rear-seat passenger in a car driven by a friend in St Albans. When her friend attempted to merge from a parked position to join traffic, the vehicle collided with a vehicle to the right (“the accident”).
24 The plaintiff felt that she fainted, feeling unaware of what was going on. Her chest felt as if it collapsed. She could not breathe. Her chest and left shoulder were extremely painful, and her left thumb felt numb and looked loose.
25 After the accident, the plaintiff was conveyed by ambulance to Sunshine Hospital, where it was found she had fractured her left thumb. Her chest was tender and she had pain in both shoulders, worse on the left. She was given pain medication,
26 On 14 May 2010, the plaintiff underwent surgery at Sunshine Hospital involving reduction and internal fixation of the thumb fracture.[13]
[13]T9
27 The plaintiff subsequently attended the Outpatients Clinic for regular reviews. On 17 June 2010, the K‑wires in her thumb were removed. The plaintiff had physiotherapy and occupational therapy for her thumb and left shoulder injuries; however, she continued to experience constant pain and restricted movement in both areas.
28 In August 2010, the plaintiff had an ultrasound of her left shoulder, which she understood showed she had developed a frozen shoulder. She had physiotherapy treatment until about June 2011 when she ceased as her condition was not improving further.
29 As of May 2016 when the plaintiff swore her first affidavit, she was no longer having any active treatment; however, she still experienced constant left shoulder pain, mild at rest, but significantly aggravated by use of her left arm and by cold weather. In particular, she had difficulty raising her arm above shoulder height, performing repetitive tasks such as vacuuming, mopping and stirring foods when cooking. She could no longer lie on her left side to sleep. She tried to do the exercises shown to her by her physiotherapist, but she had to stop if her pain increased because she was scared of injuring herself further.
30 The plaintiff’s left thumb remained stiff and numb. Movement was restricted such that she could no longer grip things in her left hand. Together with her left shoulder pain and restricted movement, her left arm was basically useless.
31 The plaintiff could no longer do anything which required two hands, such as opening jars, chopping vegetables, opening a door with two latches, or fastening or unfastening a belt. Her left thumb was still painful if knocked accidentally.
32 The plaintiff’s general practitioner, Dr Lucia Oude-Vrielink, ordered a cervical spine MRI scan[14] and prescribed Panadol Osteo, which the plaintiff was to take three times a day.
[14]5 May 2016
33 The plaintiff swore a further affidavit on 31 August 2017.
34 The plaintiff continues to suffer from symptoms and disabilities as set out in her first affidavit. She still has constant left shoulder pain, aggravated by the use of her left arm. That pain radiates into her neck and the top of her right shoulder, and is associated with neck stiffness.
35 In cross-examination, when asked whether she still had constant left shoulder pain, the plaintiff answered directly “No”. The interpreter then answered “Yes, true”.[15]
[15]T23
36 The plaintiff feels as though her left shoulder is getting worse, whether from the cold weather or for some other reason. She still has difficulty raising her left arm above shoulder height.
37 The plaintiff’s left thumb is basically useless. If she does not wear a glove she gets a cold, yet burning sensation, similar to pins and needles. Her thumb is numb, so she is afraid to pick up things or carry things like a glass of water for fear of dropping it, as she would not feel it slipping.
38 Similarly, the plaintiff can no longer pick up or hold her grandchildren because she is afraid she will drop them. She is unable to grip things such as vegetables in order to chop or cut them. She has difficulty washing the dishes, doing up the clasp of her bra, and turning on the heater at home, which requires depressing two buttons.
39 The plaintiff confirmed her left thumb is useless. She wears a glove on very cold days, but does not like doing so because it makes things even more difficult. She agreed she is afraid to pick things up and if she has to, she will use her left arm to support her right arm. However, with that kind of movement, she suffers a great deal of pain, but she sometimes has to tolerate it.[16] Every time she does something with her left arm, the pain comes on immediately. She cannot choose to stop doing things, such as washing the dishes.[17]
[16]T23
[17]T24
40 The plaintiff takes one tablet of Panadol in the morning and one in the afternoon daily. She also takes additional Panadol as required. She takes it for “every pain possible I can feel, so for my knee, for my shoulder, for my arm, for my hand I take it”. She has been told to take it any time if the pain persists.[18]
[18]T36
41 The clothes the plaintiff wears are too delicate to be washed in the machine without being wrecked, so she tries to wash them with one hand by wringing them out, but that cannot be done with one hand. She just soaks things but it is not possible to wring them to the point to get the water out.[19]
[19]T24
42 The plaintiff was then shown some surveillance film. At the start thereof, counsel for the defendant asked the interpreter to stop talking to the plaintiff during the film.[20]
[20]T25
43 There was film taken on 14 July and 11 August 2017, and two operators filmed the plaintiff on 18 August 2017. [21]
[21]Exhibit 1
44 The plaintiff agreed it was her shown in the film on 11 August 2017 walking around slowly, using a walking stick in her right hand. She agreed it was a normal day, doing normal day-to-day things but she was still in pain.[22]
[22]T27
45 The plaintiff confirmed it is difficult even to wring out a kitchen cloth. Whether she uses her two hands depends on what she is doing. Sometimes she uses the left hand to support the right.[23] She was sure there were times she had to use her left arm by “tolerating the pain” and every movement would cause pain in her left arm. She indicated the pain was in her left bicep, thumb and also the left shoulder.[24]
[23]T28
[24]T28
46 The plaintiff was shown on 14 July 2017 at the front of her house putting up and taking down clothes from what she described as a dry clothesline for airing.[25]
[25]T29
47 The plaintiff may have been shown lifting her arm above shoulder level because “nowadays recently” she can lift a little bit higher, but every movement hurts and “sometimes [she] tolerates the pain”.[26]
[26]T29
48 When asked whether she was shown wringing out a red cloth with both hands, the plaintiff’s answer was somewhat confused, asking why she would wring out a dry cloth.[27]
[27]T29
49 The plaintiff was then shown the frame of film at 12:18 on 14 July 2017 which showed her wringing out the corner of what appeared to be a small red cloth using both hands.[28] She agreed this was what she was doing. She explained the cloth had got wet from the floor and that was why she was wringing it out. She felt pain doing so. Her left thumb is really useless.[29]
[28]T30
[29]T33
50 When asked whether she looked in pain on the film, the plaintiff asked whether you can see pain and then said she felt pain in every movement. Even sitting in the witness box, she was in pain. As a woman, she wants to do things around the house but when the pain persists she stops and has a rest. She may have stopped to rest when not filmed. Even though she was in pain she did not see on the film that she stopped doing what she was doing.[30]
[30]T34
51 The plaintiff agreed the film showed her carrying things in both hands. She can hold the walking stick in the left hand and sometimes use that arm and also put her handbag over it.[31] Carrying things like a walking stick in the left hand caused her discomfort and that is why she did not bring it with her to Court on the day.[32]
[31]T31
[32]T32
52 The plaintiff’s husband is significantly older than her, and has his own health concerns, so even when he is at home he is very limited in the assistance he can provide. They are very lucky that one or another of their children comes over every three or four days and cleans up all the dishes, as well as cleaning the house and cooking up batches of food.
53 The plaintiff’s situation has been very difficult. Complaining is unacceptable in her culture, so it is hard to ask for help.
54 Every time the plaintiff does some domestic work, especially if there is a special preparation for special events, she suffers aches all over in her joints.[33] For normal activities, usually she has problems, indicating over her right arm.[34]
[33]T17
[34]T18
55 Since the accident, the plaintiff’s daughter has continued to live in Adelaide and comes to Melbourne rather than the plaintiff visit her in Adelaide.[35] The plaintiff has not been to Adelaide to visit family in the last three years.[36]
[35]T18
[36]T23
56 The plaintiff went overseas for three months in early 2016 to attend a family funeral and do the traditional mourning.[37]
[37]T15
57 The plaintiff and her family used to know people in St Albans where they were members of a religious group, but now that the family is in Ascot Vale, they hardly know anyone except immediate family, who are busy with their own lives.
58 Most of the other African people living nearby are Somali, and do not share a religion or language. The plaintiff is lucky her children are prepared to take time off work to help, but it is hard for her daughter in particular, as she has just had a baby.
59 The plaintiff confirmed that before the accident she enjoyed watching television, pottering around the house and walking to the shops with friends. That still is the case. However, since her family has moved to Ascot Vale, catching up with friends is not happening as much as she would like. That is also one of the reasons she no longer attends church as frequently.[38]
[38]T20
60 The plaintiff feels very humiliated because she has always been independent and done things for her children and husband, but now feels that she is a burden.
61 The plaintiff recently hurt her left knee, maybe two months ago, when she fell in front of the house putting out the rubbish bin.[39] She was unsure who had given her treatment for this injury but she mentioned she had seen a specialist.[40]
[39]T20
[40]T35
62 There was no re-examination.
Lay evidence
63 The plaintiff’s daughter, Segenet Kassie, affirmed an affidavit on 7 August 2017. She lived at home until 2012.
64 Ms Kassie confirmed that prior to the accident, the plaintiff was a strong, active, independent social woman, who got up very early to brew coffee and bake bread. She did all the shopping and housework and gardening, and never asked for any help. She also enjoyed sewing, fixed clothes for her family, and made lots of handicrafts.
65 Prior to the accident, the plaintiff was very independent and could walk places and catch public transport by herself if she knew how to get there. Since the accident, she appeared to be very nervous around cars, and lost much of her independence. She is very nervous when crossing the road. This was not the case before the accident. Since the accident, the plaintiff will only agree to travel in a car with a small number of people whom she trusts.
66 Prior to the accident, the plaintiff was very social, attending a spiritual event with twenty other women monthly. She really enjoyed this activity, but rarely attended any more because of difficulties travelling and her daughter’s problems driving her to places.
67 The plaintiff has a lot of difficulty doing the shopping because of her problems with holding things as a result of her thumb injury. She is unable to lift heavy things because of her shoulder, and Segenet tries to assist her when she can, but it is difficult for her to find the time to do it.
68 The plaintiff has had great difficulty continuing to do all the cooking and cleaning since the accident. Because of her left thumb, she has difficulty holding things when she is trying to cut them.
69 Segenet did most of the cooking and cleaning while she was living at home after the accident, and now tries to go back home to do some of that for her parents, and cooks large batches of food for them. She also cleans the house.
70 The plaintiff now has difficulty dressing herself, particularly with doing up the clasp on her bra, and she is unable to reach high things on shelves.
71 Prior to the accident, the plaintiff often minded the grandchildren, played with them and cooked for them. She has not looked after them since the accident. When she spends time with them, she no longer holds them up or plays with them as she once did. The plaintiff is yet to hold her five-month-old granddaughter because of her injuries as she was afraid she may drop her.
72 When visited, the plaintiff complains of constant pain in her shoulder. She also says she feels hopeless and that she is upset she can no longer do the things she did pre-accident, such as socialise with friends and attend community events.
73 The plaintiff now spends most of her time at home, which is very different to pre-accident, when she was very active and social, and was often out of the house socialising or doing the shopping.
74 The plaintiff’s husband, Asres Kassie Teferi, affirmed an affidavit on 30 August 2017. He confirmed the matters deposed to by the plaintiff and his daughter. He made no mention of the carer’s pension or any health problems the plaintiff experienced before the accident, painting a picture of a healthy, happy and organised woman prior thereto. Further, he deposed that he and the plaintiff had not travelled to Adelaide to visit their son since the accident.
75 The interpreter, Bedellu Desta, swore an affidavit on 18 September 2017. He is an Amharic interpreter who has been interpreting since 1984, and has previously interpreted for the plaintiff on a number of occasions, including her second affidavit.
76 Mr Desta explained that in the Ethiopian culture it is expected you do not make eye contact with or contradict people to whom you show respect such as professionals.
77 The plaintiff is unable to understand complex issues ideas in her own language and is unable to describe when events occurred. It would be necessary therefore to explain to her what the question is and then ask for a yes or no answer.[41]
[41]T7
The Plaintiff’s treaters
78 The plaintiff attended Sunshine Hospital Emergency Department on the said date. On presentation, she was quite distressed. She had a painful left clavicle with grazing and pain on the left thumb which was quite swollen. There was also chest tenderness.
79 Investigations were carried out, with an x‑ray of the left thumb showing a mildly comminuted transverse fracture across the neck of the thumb and proximal phalanx. The distal fragment exhibited mild dorsal angulation, and no intra-articular extension was appreciated.
80 The plaintiff’s thumb was placed in a cast and she was given analgesia. She was seen on 13 May 2010 and admitted the following day, and went under a local anaesthetic and sedation. Her fractured thumb was reduced and fixed with two K‑wires. These were removed on 17 June 2010.
81 On examination on 15 July 2010, the plaintiff complained of some pains over the wrist, and an x‑ray of the left wrist was undertaken. Cystic change was noted in the carpus, consistent with previous trauma.
82 The plaintiff continued with her occupational therapy, and on 29 July 2010, it was noted her left muscles were very weak and were likely causing pain.
83 There was a further attendance in Outpatients on 26 August 2010, when the plaintiff complained of ongoing left shoulder pain, but an x‑ray showed no abnormality, and she was advised to have physiotherapy.
84 When seen on 9 September 2010, the plaintiff complained of ongoing shoulder discomfort since the accident. There was weakness in abduction and flexion due to pain, but no sensory deficit.
85 Following a left shoulder ultrasound on 30 August 2010, it was reported there was biceps tenosynovitis and calcific tendinosis of the supraspinatus. No definite rotator-cuff tear could be identified. There was subacromial bursitis, and it was suggested an ultrasound-guided steroid injection may be useful.
86 The plaintiff was seen by a specialist physiotherapist on 1 April 2011, when it was noted her right shoulder pain had resolved after three injections organised by a local doctor. Her left shoulder was now the main problem, the pain having started after the accident.
87 The plaintiff was seen again on 17 June 2011, having had some physiotherapy that had been helpful to a degree. Ultrasound revealed a full thickness tear of the supraspinatus. The plaintiff reported some improvement from a recent cortisone injection. The specialist felt the plaintiff’s pain and restriction of range were due to impingement secondary to the rotator cuff pathology. It was noted the plaintiff was to be reviewed in five months’ time.
88 Dr Ansari at St Albans Complete Health Care first saw the plaintiff for her accident injury on 17 May 2010.
89 In his report of 21 December 2011, Dr Ansari noted the plaintiff continued to receive all treatment following the accident at the Western Hospital.
90 Dr Ansari diagnosed left shoulder capsulitis, a fractured left thumb, muscular strain of the cervical spine, mainly on the left side of the neck, and aggravation of right shoulder problem.
91 Dr Ansari thought the prognosis then was poor, and that in the future, the plaintiff would certainly require physiotherapy to her left shoulder and neck; however, not much could be done for her left thumb, which had become stiff.
92 Dr Ansari noted that unfortunately, because of the language barrier, it was difficult to really know how the condition had affected the plaintiff. She seemed to be fine some days, and there were days she was in a lot of pain.
93 Dr Ansari wrote to the TAC on 18 December 2014, noting the plaintiff had been seeing him regularly; however, she had been preoccupied by other health and housing issues, and there had been a significant gap in billing TAC.
94 At that time, the plaintiff still complained of pain in the left shoulder due to capsulitis, with tenderness and swelling. She had been prescribed Feldene capsules and she took Panadol Osteo regularly; however, Dr Ansari noted she did not seem to understand the processes of TAC and only turned up for consultations when she was in a lot of pain.
95 Dr Ansari next reported on 17 February 2015. He had seen the plaintiff on 25 January 2012 and 15 December 2014 in relation to her TAC claim. She had been attending the clinic for non-related issues during that time. The prognosis continued to be poor.
96 Dr Ansari noted that since he last reported in December 2011, the plaintiff was seen in January 2012 by Mr Chehata, an orthopaedic surgeon specialising in upper limb injuries. Mr Chehata thought she had a left rotator-cuff tear and that she would benefit from a cortisone injection to reduce the pain. He discussed surgery with the plaintiff, but she was apprehensive. He advocated conservative management, and should this treatment fail, he felt an MRI scan could help clarify the rotator-cuff pathology with or without a shoulder arthroscopy.
97 Mr Chehata wrote to Dr Ansari on 27 January 2012, having seen the plaintiff that day. He suggested a cortisone injection. He advised if that failed, surgery would provide a better result but he was concerned about the plaintiff’s understanding of any post-surgery problems and also the poor result from left thumb surgery for which she had no feeling and felt deformed.
98 Mr Phu from Main Road West Physiotherapy reported in January 2012 that he had been seeing the plaintiff since October 2010 and had last seen her on 20 June 2011.
99 At that stage, Mr Phu thought that given the extent of the plaintiff’s injuries, and their longstanding nature, it was highly unlikely she would fully recover. At the time of discharge, her range was still about 70 per cent improved and had plateaued over the previous couple of weeks. Although she felt much better and was able to use her arms with more activities of daily living, she was still limited with her range, and often presented with pain. She reported she felt relief and was able to use her arm more in a pain-free manner once she had physiotherapy.
100 Mr Phu diagnosed biceps tenosynovitis, calcific tendinosis of the supraspinatus with no definite tear, and subacromial bursitis. He doubted whether surgery would be of any benefit, but thought a cortisone injection may be.
The Plaintiff’s medico-legal evidence
101 The plaintiff first saw John O’Brien, orthopaedic surgeon, in January 2012.
102 The plaintiff then stated her left thumb remained stiff with altered feeling, and she continued to experience constant pain in the left shoulder and upper arm. At rest, the pain was minimal. However, any movement of the arm aggravated the shoulder pain, and she could not elevate it, as the shoulder remained stiff.
103 Mr O’Brien noted that physical examination revealed quite marked restriction of all movement of the left shoulder, which, from a clinical perspective, was indicative of adhesive capsulitis, noting that the ultrasound had shown tendinopathy. Despite that, Mr O’Brien would still regard the clinical cause as described as that of adhesive capsulitis.
104 In addition, the plaintiff had developed an ankylosis of the interphalangeal joint with the left thumb, which Mr O’Brien could only presume followed an intra-articular fracture.
105 Given there had been no apparent symptomatic improvement over the previous year, Mr O’Brien did not think the clinical situation was likely to change with further treatment. He regarded her prognosis as poor. He considered the plaintiff would have permanent pain and stiffness in the left shoulder, and a 20-degree ankylosis of the interphalangeal joint of the left thumb.
106 Mr O’Brien noted the plaintiff now described a moderate disability associated with some loss of function of the left dominant arm and hand. Whilst she had never worked, the plaintiff was limited in domestic activities, and this would certainly appear to have affected the family dynamic, and this restriction was permanent.
107 Mr O’Brien re‑examined the plaintiff on 12 October 2016.
108 The plaintiff reported she experienced constant left pain in the left shoulder over the anterior and superior aspect, which apparently radiates proximally to the left side of the neck. She could not rate the severity of her pain. It was reported as being aggravated by any movement of the shoulder and cold weather.
109 The plaintiff also stated she experienced pain in the left thumb, which she reported did not work. Any pressure applied to the pulp of the left thumb caused increased pain which could extend up to the arm to the level of the shoulder, and she reported she was now afraid to use the left hand for any activity which she knew would cause severe pain. As a consequence, she stated she did not do any household activity.
110 On examination, the plaintiff was observed to move moderately freely, and she was in fact observed to use the left dominant hand.
111 Mr O’Brien noted that examination, despite the plaintiff’s complaints, now demonstrated there had been a very definite improvement in the range of left shoulder movement since the initial examination; however, there remained restriction of particularly flexion and abduction of the shoulder which would now suggest the presence of some persistent rotator-cuff tendinopathy. Signs of adhesive capsulitis appeared to have resolved.
112 Whilst there remained a fixed flexion deformity of the interphalangeal joint of the thumb, the plaintiff now demonstrated moderate flexion, which could certainly confirm there was no ankylosis of the interphalangeal joint.
113 Mr O’Brien thought the overall clinical condition could now be regarded as stable. He thought the prognosis indeed was poor, and the plaintiff undoubtedly would continue to report chronic left shoulder and thumb pain.
114 In fact, Mr O’Brien noted the plaintiff now reported quite marked disability associated with the current symptoms, particularly relating to the left hand. Although she said she retained the ability to undertake normal activities of daily living, she reported being unable to undertake any domestic task. Mr O’Brien thought that situation would certainly remain unchanged. He noted the plaintiff reported considerable restriction of her general, social, domestic and recreational activity, which was a situation he considered permanent.
115 On re‑examination on 17 July 2007, the plaintiff reported there had been little change in relation to ongoing symptoms associated with the left shoulder and left thumb. She advised that about six months ago she fell at home, and experienced left knee pain.
116 The plaintiff reported constant pain affecting the left side of her neck, extending to the region of the left shoulder and to the lateral aspect of the proximal left arm. She felt her left shoulder was broken. She could not assess the severity of her pain.
117 The plaintiff continued to have problems with her left thumb, which she described as feeling dead and numb. Any pressure caused severe pain, and she in fact avoided using the left hand. She had difficulty gripping any object in the left hand, which caused pain, and there was also a feeling of quite marked weakness.
118 On examination, the plaintiff presented ambulating with a single-prong walking stick in her right hand. She was observed to use her left hand. Mr O’Brien thought there was no change in the clinical condition since the 2016 examination.
119 Mr O’Brien concluded physical signs now demonstrate evidence of rotator-cuff tendinopathy which appeared to correlate with the most recent ultrasound. Certainly he would consider there was evidence of post-traumatic arthritis in the interphalangeal joint of the left thumb, which did result in a fixed flexion contracture of the distal phalanx of the thumb and restricted flexion. He noted recent investigations[42] perhaps confirmed the underlying pathology; however, that had not produced any indication that further treatment was required.
[42]MRI scan of the cervical spine 5 May 2016, x‑ray of the left shoulder and left thumb 10 April 2017
120 Mr O’Brien noted the plaintiff reported ongoing marked disability due to her current symptoms. Nevertheless, she continued to remain quite capable of normal activities of daily living, but was unable to undertake domestic tasks. The restrictions and limitations he had previously described continued.
121 Dr Nigel Strauss, psychiatrist, examined the plaintiff in January 2012.
122 The plaintiff did not give a history of any psychiatric problems before the accident.
123 Dr Strauss noted the plaintiff was very shy and uncommunicative initially, but in time, began to talk using the interpreter. She seemed reasonably alert, and her memory and concentration were adequate. She was not tearful, and she was orientated in time, place and person.
124 Dr Strauss diagnosed anxiety symptoms, depressive symptoms, and post-traumatic symptoms, as a result of a frightening transport accident following which the plaintiff had been left with chronic pain.
125 Dr Strauss thought the plaintiff may benefit from some counselling, but it might be difficult to get someone with whom she could communicate. He considered no other factors seemed relevant.
126 Dr Strauss re‑examined the plaintiff in September 2016.
127 At that stage, Dr Strauss reported the plaintiff was preoccupied with her pain and looked sad and depressed. Her affect was mildly depressed and anxious. There was negative and self-preoccupied thinking, but no evidence of any psychosis, delusions or thought disorder. Perception was normal, and judgment and insight was adequate.
128 The plaintiff was not completely orientated, and her memory and concentration were a little patchy, largely because of shyness.
129 Dr Strauss thought the plaintiff continued to suffer from ongoing anxiety and depression, and she had a mild Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. She also has post-traumatic stress symptoms. He noted little had changed since last seen, although her post-traumatic symptoms were less severe.
130 Dr Strauss thought it appeared that the plaintiff’s level of activity in relation to social, domestic and recreational activity, and her enjoyment of life, had decreased as a result of the effects of the accident.
131 There was a further examination on 26 June 2017.
132 Dr Strauss reported the plaintiff’s condition had not altered since last seen, and confirmed his earlier diagnosis. He doubted whether she would improve in the foreseeable future. She would not respond to any psychiatric treatment, and he would not recommend any. He thought her prognosis must be guarded.
The Defendant’s medical evidence
133 In April 2007, the plaintiff was referred for a job capacity assessment by Centrelink. The assessment was conducted in the presence of an Amharic interpreter.
134 The author of that report noted that the plaintiff had minimal spoken and comprehension in English and was illiterate in her own language. She had no work experience and limited transferrable skills. She was reliant on public transport and reported she did not go out without her husband or her children. She did not feel confident dealing with services in public due to her language barrier.
135 In a similar assessment the following year, it was noted the plaintiff’s medical condition was depression of a temporary nature. She had a psychological/ psychiatric condition. She was currently experiencing symptoms including depression, fear, grief and loss which appear to be relative to the loss of her home through fire and also her concern for her own safety.
136 Counselling was suggested to assist the plaintiff to get through grief loss issues and reduce the functional impact that it was currently having on her.
137 There were similar assessments in 2009 and 2010.
138 In 2009, it was noted in psychological terms, the plaintiff appeared very damaged after the fire. She had symptoms consistent with PTSD including hypervigilance, extreme reaction to certain noises, nightmares and reliving the experience. She was not able to be by herself anywhere, both inside and outside her home. She had a panic attack when she heard a door bang or an emergency siren. She said she was mentally confused and had poor concentration.
139 It was noted the plaintiff had arrived in Melbourne a month earlier to remove herself from the area of the fire in Adelaide. She and her husband had consulted a new general practitioner and the plaintiff had begun new medication. It was suggested further psychological treatment be sought though the general practitioner.
140 The plaintiff said through English classes the only word she had retained was “sorry” and she had no literacy skills.
141 Referral was made to PSP to link the plaintiff to migrant or refugee community groups and to encourage her to seek long-term counselling from the appropriate service.
142 On 11 May 2009, Dr Ansari completed a medical report for the purposes of a carer allowance application made by the plaintiff’s daughter, who was then aged twenty-six to twenty-seven.
143 Dr Ansari advised that the plaintiff was being cared for psychiatric disabilities, the condition being Anxiety and Depression which commenced more than twelve years ago. He thought the plaintiff required help on a daily basis, because of that disability, to carry out routine personal activities.
144 Dr Ansari noted the condition was temporary and was expected to continue for twelve months or more. He thought plaintiff was independent in a number of daily functions. He did not think she was cognitively impaired.
145 Dr Ansari noted the plaintiff showed signs of depression most of the time, as was the case with memory loss, with withdrawal from social contact. Her behaviour was never disinhibited or aggressive.
146 Dr Ansari provided medical certificates certifying the plaintiff unfit because of stress, anxiety and depression, which was temporary.[43]
Dr Ansari’s clinical notes
[43]29 June 2009, 13 September to 13 December 2011
Pre-accident attendances
·“12 March 2009 – from Adelaide, frustrated since house burned down, has never been well. Poor sleep, depressed mood, low self-esteem, rational fear, panic attacks.
·5 May 2009 – patient wants to apply for carer’s pension. Anxiety, depressed, poor sleep, depressed mood, low self-esteem.
·11 May 2009 – completed carer allowance form for daughter.
·29 June 2009 – letter re Centrelink certificate.
·25 November 2009 – painful right shoulder, right arm, tender over the arm, not able to move, x‑ray right shoulder requested.
·26 November 2009 – ultrasound of the right shoulder organised.
·30 November 2009 – chronic rotator cuff tendinopathy, may need steroid injection.
·8 January 2010 – patient still experiencing pain in the right shoulder, no improvement, steroid injection requested.
·19 February 2010 – right shoulder problem persists, needs hospital referral.
·4 March 2010 – results of tests notified, right shoulder injection short time needed, specialist referral to Western Health.
·4 March 2010 – Panadeine Forte added and Mobic.
·11 March 2010 – had three injections, not helped, wants more Panadeine Forte.”
147 The first attendance after the accident was on 17 May 2010. It was noted the plaintiff injured her left thumb, left shoulder and neck, and fracture of distal part of prox phalanx. Panadeine Forte was prescribed.
148 On 8 June 2010, the plaintiff attended complaining of joint pain, back pain, affected joints being both shoulders.
149 There was a subsequent attendance for non-accident related issues on 2 August 2010. In October 2010, the plaintiff attended twice with left shoulder complaints and one of these visits, also with back pain.
150 There were attendances relating to the thumb or left shoulder on 3 and 10 November 2010. Neck pain was mentioned on 10 and 30 November 2010.
151 On 18 February 2011, Dr Ansari noted the house fire and the car accident, which involved neck, left shoulder and left arm pain. There were complaints of shoulder pain on examination in March, June and September 2011.
152 Dr Ansari saw the plaintiff on 20 December 2011, when he diagnosed left shoulder capsulitis injury to the left thumb, left side of the neck and right shoulder, consistent with the accident.
153 The next examination was 25 January 2012 where the affected joint was the left shoulder. There were attendances for unrelated conditions in June and July 2012 and January and September 2013. In October that year, there was a complaint of left shoulder pain. In December 2014, it was noted the plaintiff’s left thumb and left shoulder was tender and she attended for shoulder capsulitis. Feldene and Panadol Osteo were prescribed. The plaintiff has not been seen at this clinic since early 2015.
154 Dr Ansari provided certificates for Centrelink from November 2010 to February 2011, with the first diagnosis described as distress, anxiety, depression; the second - neck pain; and the third - left shoulder and arm pain.
155 In a Western Health physiotherapy musculoskeletal assessment in July 2011, it was noted the plaintiff lived with her husband and often travelled to Adelaide to visit family.
156 Dr Licia Oude-Vrielink from Moonee Ponds Medical Centre reported on 14 October 2016. That practitioner saw the plaintiff once on 28 April 2016 when she attended with her husband.
157 Dr Vrilelink noted the accident in which the plaintiff broke her thumb. Of recent onset was pain affecting the left side of the neck radiating to the left shoulder and arm with associated numbness in the left thumb.
158 Dr Vrielink diagnosed neck pain with radiculopathy. Whilst there were some difficulties in relation to the language barrier, the doctor understood the plaintiff’s current symptoms were of recent onset and not related to the accident.
159 Dr Vrielink noted the plaintiff had a cervical MRI scan performed and the results thereof. Based on the single consultation, the doctor was not able to comment on the plaintiff’s future work capacity, having not seen her for follow up.
160 It appears from the notes of the Medical Centre that the plaintiff first attended in April 2016 when she requested a report relating to the accident.
161 On 10 April 2017, the plaintiff saw Dr Sabir at the Medical Centre complaining of left shoulder pain from the accident. Diagnostic imaging of the shoulder was requested.
162 The ultrasound of 10 April 2017 was reported to show some thinning of the supraspinatus tendon in keeping with chronic tendonopathy at its insertion. There was no rotator cuff tear or bursal thickening, and satisfactory range of movement was shown.
The Defendant’s medico-legal evidence
163 The plaintiff was examined by orthopaedic surgeon, Mr Max Esser, in July 2017.
164 The plaintiff then complained of pain and discomfort in her left shoulder. She got angry very easily. She could not sleep, and her husband said she suffered from nightmares. She could not cook as she used to.
165 On examination, the plaintiff looked tired and depressed. There was a glove and stocking loss sensation affecting the entire left limb compared to the right. There was some slight stiffness in the interphalangeal joint of the left thumb.
166 Mr Esser thought the metacarpophalangeal joint seemed to have a normal range of movement.
167 Mr Esser noted the documentation relating to the treatment of the accident injury and subsequent investigations in 2010 and 2011, a physiotherapy report in August 2012, and a 2010 ultrasound.
168 Mr Esser thought the plaintiff had a problem with pain, discomfort, and restriction of movement in the left shoulder, noting there was some loss of sensation in the left upper limb which was distributed in a glove and stocking sensory loss. He thought she had objective evidence of disability with respect to her left shoulder, with the diagnosis either a form of adhesive capsulitis and/or tendinosis of the supraspinatus tendon (ultrasound of August 2010).
169 Mr Esser also considered the plaintiff had a minor functional component to her presentation and had elements of depression, but he did not think that was affecting the left shoulder function.
170 Mr Esser thought the prognosis for the plaintiff’s current accident-related condition as a left shoulder abnormality was fair only. He noted her ability to do household duties had been impaired by the function of the left shoulder. He thought her accident injuries, namely left shoulder stiffness, did interfere with domestic and leisure activities. He thought she had some degree of depression.
171 Mr Esser was subsequently sent the video surveillance and an ultrasound of the left shoulder which showed some thinning of the supraspinatus tendon in keeping with chronic tendinopathy. He noted an ultrasound of the left thumb had normal appearances. An x‑ray of the left shoulder showed degenerative changes in the acromioclavicular joint and no other abnormality.
172 Mr Esser thought the video taken on 14 July 2017 showed quite good abduction and movement of the left shoulder, of what appeared to be a blanket off the washing line. He noted the plaintiff was appearing to use the left upper limb, with no specific limitation of range of movement.
173 Mr Esser saw the video of 11 August 2017, when the plaintiff was walking into a medical practice and getting into a taxi. He had also viewed the film of 18 August 2017, when she was standing and then walking with a walking stick, and crossing the road.
174 Mr Esser noted that he had seen the plaintiff walking well and appearing not to use the walking stick for weight bearing in August 2017. She walked with the stick in her right hand as she attended medical suites in East Malvern. At one stage, she was not carrying a stick and appeared to be walking normally. She was later shown to be carrying what appeared to be a long bin in her right upper limb, and not using a walking stick.
175 Mr Esser noted Mr O’Brien’s 2017 report in which he described post-traumatic arthritis of the interphalangeal joint of the left thumb, and thought the plaintiff had marked disability due to her current symptoms. However, Mr Esser thought the video did not confirm Mr O’Brien’s comments that the plaintiff was unable to undertake domestic activities.
176 Mr Esser also noted Dr Firestone’s August 2017 report in which he diagnosed a Chronic Adjustment Disorder with both Anxious and Depressed Moods which had been present since a fire in 2007.
177 Further, Mr Esser noted Dr Strauss’s report of September 2017 in which he diagnosed a mild Chronic Adjustment Disorder with Anxiety and post-traumatic stress symptoms.
178 Mr Esser also noted the ultrasound of April 2013 which showed some thinning of the supraspinatus tendon in keeping with chronic tendinopathy at its insertion with no tear. He thought these were the features consistent with the plaintiff’s presentation when he examined her, noting she injured her left shoulder in the accident.
179 In Mr Esser’s view, the plaintiff had almost certainly recovered from most of the effects of the injury to what was probably the left supraspinatus tendon in the past. He thought she only had minimal impairment of the function of the left shoulder. He noted she had glove and stocking sensation, which he thought was a functional non-anatomical presentation.
180 Mr Esser concluded most of the issues had now been resolved. He thought the plaintiff had some thinning of the supraspinatus tendon, and probably had a tendinopathy.
181 Dr Firestone, psychiatrist, examined the plaintiff in August 2017.
182 The plaintiff reported, in terms of physical complaint, that her left thumb had no strength, she could not undo her safely belt, and she had difficulty holding a knife when chopping in the kitchen. Her left shoulder was still painful.
183 The plaintiff said since she arrived in Melbourne, she had been distressed that her daughter in Sudan was not here. The plaintiff was unwell as a result, and could not sleep. She still thought about the Adelaide fire.
184 The plaintiff described no initial insomnia but broken sleep, and there were nightmares every night of her children falling and of her daughter being dead. She was frightened to be alone at home, and that had only developed since the accident.
185 On examination, the plaintiff carried a stick in her left hand because of a recent knee injury.
186 Dr Firestone could only provide a differential diagnosis to account for the plaintiff’s episodes of incomprehensible muttering during the interview. He thought that may be a cultural expression of a psychiatric condition of distress unknown to him. Alternatively, it might be illness behaviour engaged in to exaggerate her distress as a result of the accident, for while the plaintiff appeared ignorant in many areas, it was clear she appreciated the value to her of symptoms as a result of the accident.
187 Dr Firestone noted the plaintiff clearly described fearfulness in cars as already present at the time of the accident. He thought there was no psychiatric condition as a result of the accident itself, but the trauma symptoms can be said to persist.
188 Dr Firestone’s impression was of a Chronic Adjustment Disorder with both anxious and depressive features which have been present since the fire and exacerbated by the plaintiff’s chronic grieving for her daughter in Sudan, which had never been treated with medication or with conversation. In his judgment, the accident had played no part in the plaintiff’s condition.
189 Dr Firestone diagnosed a Chronic Adjustment Disorder with anxious and depressive features related to antecedent house fire and ongoing separation from daughter.
190 Dr Firestone thought the plaintiff required a full psychiatric assessment, preferably by a speaker of her own language.
191 Dr Firestone provided a supplementary report on 30 August 2017 commenting on a number of medical reports and also the surveillance video.
192 Dr Firestone noted that none of the films showed cheerfulness but the earliest one showed the plaintiff carrying out housework with her husband in a co-operative manner. She was shown on 11 August 2017 momentarily weeding using her left hand. In his view, the films consistently showed the plaintiff favouring her right hand in keeping with her left shoulder complaint and also consistent with her right handedness. Nothing in the surveillance provided appeared to contradict the plaintiff’s account to him.
Overview – left shoulder
193 There is no dispute the plaintiff suffered injury to her left shoulder in the accident.
194 Mr O’Brien thought the physical signs demonstrate evidence of rotator cuff tendinopathy and whilst he considered there was a minor functional component, Mr Esser thought there was a diagnosis of either a form of adhesive capsulitis and/or tendinosis of the supraspinatus tendon.
Credit
195 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[44]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[44](2010) 31 VR 1 at paragraph [12]
196 Counsel for the defendant raised issues as to the plaintiff’s credit and also the independence of the Amharic interpreter, Mr Desta. In those circumstances, it was submitted the Court should be concerned generally about the accuracy of the plaintiff’s complaints and take particular regard of the medical evidence in relation thereto.[45]
[45]T47
197 It was submitted it was remarkable the lack of mention of any pre-accident problems in the plaintiff’s affidavits, whether it be right shoulder complaints or psychiatric issues involved with the fire at her Adelaide home in 2007.[46]
[46]T43
198 Further, it was submitted the plaintiff’s credit was damaged as she had not acknowledged improvement in her shoulder condition in her affidavits or at the very least had maintained her condition was significant “all the way through”.[47]
[47]T54
199 However, as I pointed out during the hearing, there was no doctor who commented on the presence of any significant functional overlay or any exaggeration by the plaintiff.[48] Overall, I accept her evidence as to her level of shoulder pain and restriction. Further, she was quite prepared to describe improvement in her shoulder condition after an injection in 2012 injection[49] and the hydrodilitation.[50]
[48]T54
[49]Western Health Outpatients 15 Jun 2012.
[50]Western Health Outpatients 29 April 2013 - Mr Pianta
200 Counsel for the defendant also submitted the level of restriction deposed to by the plaintiff was in contrast with the film, where she was shown wringing out a cloth with two hands.[51]
[51]T46
201 As I indicated during the hearing, I did not consider the film was particularly damaging to the plaintiff’s case.[52] However, there was somewhat of a contrast between the woman in the coloured clothing hanging out the washing with her husband in a co-operative manner as Dr Firestone described, with the woman sitting very quietly in the witness box.[53] Further, the plaintiff herself said what she was doing in the film was a normal day.[54]
[52]T47
[53]T48
[54]T53
202 I accept that the level of activity shown on the film of 14 July 2017 was not really inconsistent with what the plaintiff had deposed to,[55] particularly trying to wash the clothes with one hand. Whilst she was shown wringing the red cloth with both hands, predominantly she used her right, holding the cloth in her left.[56] Further, whilst the plaintiff describes problems with using her left arm, she has never said she does not use it. However, it is significant the film showed the plaintiff is still able to do some domestic tasks and is not totally disabled in this regard as she told Mr O’Brien.
[55]T65
[56]T66
203 Having seen the film, Mr Esser did not resile from his original views.[57]
[57]T49
204 Counsel for the defendant was critical of the independence of the interpreter in a number of instances. Whilst the interpreter deposed that in the plaintiff’s language, it was expected you did not make eye contact with someone to whom you showed respect, it was submitted the plaintiff was prepared to make eye contact and did contradict the interpreter at times.[58]
[58]T40
205 Counsel for the defendant was critical of the interpreter’s role in interpreting the plaintiff’s answers to questions about injections to her right shoulder pre accident. Later in cross-examination, after it seemed the plaintiff answered “No” directly to a question whether she had constant shoulder pain, the interpreter answered “Yes true”.
206 Further, after asking the interpreter to stop talking to the plaintiff during the film, when the plaintiff was later being non responsive, the interpreter interrupted cross-examination. It was submitted the interpreter also did not properly interpret the plaintiff’s answers about seeing a specialist in relation to her recent knee injury.
207 In those circumstances, it was submitted the plaintiff’s evidence needed to be looked at fairly critically.[59]
[59]T42
208 Further, it was submitted the plaintiff’s affidavits could more readily be accepted as the interpreter would have explained to her the issues involved and asked questions and correctly recorded her answers.
209 In response, counsel for the plaintiff submitted the interpreter was not an advocate and in fact was very careful to try and distinguish between what he was interpreting verbatim as best he could, and what he was extrapolating in the circumstances.
210 It was submitted the plaintiff’s answer “No” as to constant left shoulder pain was highly doubtful.[60] The matters raised by the interpreter in the context of the plaintiff’s pre-accident right shoulder problem could be explained simply by the plaintiff not remembering those matters.[61] It was submitted that in any event, interpreters make errors.[62]
[60]T64; T65
[61]T65
[62]T66
211 Counsel for the plaintiff also relied on the comments of the Court of Appeal in Advanced Wire & Cable Pty Ltd v Abdulle[63] where the Court dealt to some extent with linguist and cultural difficulties.[64]
[63] [2009] VSCA 170 at paragraph [54]
[64]T66
212 In their joint judgment, Priest JA and Redlich AJA stated:
“… it is necessary to give proper consideration to cultural and language barriers. Additionally, it is proper to have regard to the very real prospect that a person in the position of the respondent might experience significant levels of anxiety in being required to attend for examination by medical practitioners engaged on behalf of ‘the insurer’.”[65]
[65]Supra
213 I accept this was a somewhat unusual case where cultural factors were at play; however, the plaintiff has always had the assistance of an interpreter. During the hearing, the plaintiff’s answers were at times somewhat confusing and in my view, the interpreter seemed to go beyond his proper role and enter the arena on several occasions.
214 Clearly, significant matters were omitted from the plaintiff’s affidavits as to her state of health pre accident, her need for a carer, and her significant right shoulder and psychiatric problems. It could not be said the plaintiff was independent pre accident as she and her daughter deposed. Again, the plaintiff had the assistance of this interpreter when her affidavits were affirmed. This description is in stark contrast to Dr Ansari’s comments pre accident that the plaintiff needed help on a daily basis to carry out routine personal activities.
215 In all these circumstances, the plaintiff’s evidence of her level of disability has to be viewed with some caution and other objective evidence is of particular assistance when assessing the seriousness of her present complaints.
216 Whilst the plaintiff was supported in this regard by her daughter and husband’s affidavit evidence which was not challenged,[66] little was likely to be achieved by cross-examining these witnesses as their description of the plaintiff’s pre-accident condition was clearly inaccurate – not mentioning any of her psychological problems, her need for a carer and her right shoulder problems.
[66]T73
217 In particular, it is quite remarkable that the plaintiff’s daughter did not mention she was the plaintiff’s carer. Further, she created the impression the plaintiff led a normal healthy life before the accident, which was clearly not the situation.[67] A similar criticism can be made of the plaintiff’s husband’s affidavit in which he painted a “golden picture” of the plaintiff’s life pre accident. Further, the plaintiff had clearly been to Adelaide on multiple occasions since the accident, whereas he said that she had not gone back since.[68]
[67]Carer’s application completed by Dr Ansari in 2009 at paragraph [143] of this Judgment
[68]T50
Is the left shoulder impairment “serious”?
218 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[69]
“… the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors) … .”[70]
[69]Supra
[70]Haden at paragraph [11]
219 Counsel for the plaintiff submitted it was difficult to apply the Haden Engineering template because it requires capacity on the plaintiff to provide descriptions about the nature, duration, extent and quality of pain, and she is a person with great difficulty doing so for cultural reasons and being completely illiterate, married at nine.[71]
[71]T56, T57
220 In those circumstances, the plaintiff could not give a figure on the visual analogue scale as to her level of pain as she did not know what it meant. It therefore makes it hard for her to describe accurately to doctors what may have changed over the time. She has simplistic descriptions, describing to Mr O’Brien her shoulder and thumb as “broken”.[72]
[72]T57
221 In her most recent affidavit, the plaintiff described worsening constant left shoulder pain, aggravated by the use of her left arm. She deposed that pain radiated to her neck and right shoulder but has described to both Mr O’Brien and Mr Esser left shoulder pain only.[73]
[73]T23, confused answers in cross-examination - see paragraph [34] and [35] of this Judgment
222 Mr O’Brien did not express a view as to the plaintiff’s level of disability, noting she reported ongoing marked disability due to her current symptoms. Mr Esser concluded the plaintiff had minimal impairment of function of the left shoulder and that she had almost certainly recovered from most of effects of the injury.
223 I accept the plaintiff still has difficulty raising her left arm above shoulder height and repetitive movement would cause her problems. However, the plaintiff has never said she cannot use it and she obviously still does.
224 As counsel for the plaintiff conceded, the plaintiff’s range of left shoulder movements are said to be reasonably good.[74] Mr O’Brien noted definite improvement in the range of shoulder movement between examinations in 2012 and 2016 although there is still some restriction.[75] Mr Esser’s findings were similar.[76]
[74]T67
[75]T63
[76]T59
225 Right shoulder pain, which was a problem before the accident and required three injections, seems to have resolved by mid 2011 as noted by the physiotherapist,[77] although Dr Ansari, in his December 2011 report, noted an aggravation of the right shoulder in the accident.
[77]Jan Sutton, physiotherapist, Western Health, 17 June 2011 letter to Dr Ansari
Treatment
226 The main treatment for the plaintiff’s left shoulder has been through the hospital rather than the general practitioner as Dr Ansari confirmed.[78]
[78]T61
227 The plaintiff attended Dr Ansari in relation to her left shoulder complaints three times in 2012 and once in 2013, 2014 and 2015.[79]
[79]T70
228 Counsel for the plaintiff submitted the plaintiff could not be criticised in these circumstances for failing to attend Dr Ansari on a regular basis. Further, her limited number of attendances could also be explained by her lack of understanding of the process and that she therefore seems to only turn up when she is in a lot of pain.[80] It was submitted the plaintiff just did not understand how the treatment was meant to help.[81]
[80]T68
[81]T64
229 However, I have some difficulty with this explanation as it appears from Dr Ansari’s notes in the year prior to the accident, the plaintiff regularly attended for significant right shoulder problems and underwent investigations and three injections in relation thereto – although having no memory of this treatment.
230 Following the accident, the plaintiff had physiotherapy at Main Road from Mr Phu which ceased in June 2011. At that time, her range had improved by 70 per cent but she often presented in pain. The plaintiff also underwent physiotherapy at Western Health – Ms Sutton last seeing her on 10 May 2013.
231 Whilst not mentioned in her affidavits, the plaintiff had an injection in her left shoulder on 29 March 2011, arranged by Dr Ansari. Some improvement after this procedure was noted by Ms Sutton.
232 In 2012, the plaintiff was referred to orthopaedic surgeon, Mr Chehata, by Dr Ansari. He first injected the plaintiff’s left shoulder on 7 February 2012, after which the she reported she obtained some relief. Ms Sutton noted in June 2012, that that injection had helped relieve the plaintiff’s symptoms and she had no pain at rest and could lift left arm more easily.
233 A second injection was carried out by Mr Chehata on 9 July 2012. There is no report from him as to the outcome of that procedure. Whilst he discussed rotator cuff surgery with the plaintiff before the injections but concluded she would not be a suitable candidate,[82] he has not reported as to the plaintiff’s condition and prognosis following the injections.[83]
[82]T61
[83]T62
234 Mr Haw then carried out a hydrodilitation on 29 April 2013. There is a note from Mr Pianta at Western Health that this procedure helped – “better than before”.
235 These later procedures were also not mentioned in the plaintiff’s affidavits. She was not cross-examined in relation thereto and neither Mr Esser or Mr O’Brien comment on them.
236 Further, there was no mention in Dr Ansari’s notes or his 2015 report of the outcome of these procedures which seem to have been largely managed by Western Health.
237 Having ceased treatment with Dr Ansari in 2015, the plaintiff has been attending the Moonee Ponds Medical Centre since April 2016.
238 Dr Oude-Vrielink from Moonee Ponds provided a very brief report in October 2016 which related to one attendance in 2016. There was no reference to a left shoulder complaint. Panadol Osteo was prescribed for a recent neck problem
239 The clinical notes of the Medical Centre after that date indicate an attendance with a left shoulder complaint in April this year and investigations being arranged thereafter.
240 Whilst the plaintiff was prescribed stronger painkillers in the early period after the accident,[84] her medication intake of recent times has not been significant. She takes two Panadol a day for “everything” as she described in cross-examination.[85] The general practitioner’s notes indicate the recent prescription of Panadol Osteo was for neck pain.[86]
[84]T70
[85]T36, T52
[86]28 April 2016
Consequences
241 Counsel for the plaintiff submitted it was difficult to do the analysis of the various consequences described by the Court in HadenEngineering because the plaintiff does not have the usual range of domestic and social recreational activities and she is pretty much limited to her ability to do housework.[87]
[87]T57
242 It was submitted that the plaintiff’s pre-accident problems were psychiatric and emotional in nature and not physical and thereafter, she had clearly suffered an injury to her upper left limb and a degree of limitation persisted.[88]
[88]T58
243 Given the plaintiff’s background, counsel for the plaintiff focussed essentially on domestic activities - family, housework.[89]
[89]T58
244 Whilst the plaintiff’s ability to do household tasks has been impaired by the injury to her non dominant left shoulder,[90] she retains the capacity to do some tasks despite reporting to Mr O’Brien this is not the case.[91]
[90]Mr Esser
[91]T48
245 I accept, in particular, the plaintiff would have trouble doing overhead or repetitive tasks with her left arm. She is able however to continue using her left arm and clearly does so in tasks such as those shown in the film.
246 The plaintiff’s limited social activity as at the time of the accident is now further reduced because she has moved from her cultural community, not a result of problems with pain or immobility due to her accident injury.[92]
[92]T46
247 Otherwise, it appears the plaintiff still does the same things she did prior to the accident - watching television and pottering around the house.[93]
[93]T55
248 Any other restriction on the plaintiff’s activities on her ability to walk and her general mobility, would be due to her recent knee complaint and must be excluded from my considerations in the present application.[94]
[94]T51; Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraph [1]
249 Whilst I accept the plaintiff has some ongoing pain and restriction of left shoulder movement, and there are some expected mental consequences as a result thereof,[95] I am not satisfied that that consequences of her shoulder impairment are more than significant or marked.
[95]Richards v Wylie (supra) at paragraph [17] per Winneke P
250 Accordingly, the application in relation to the left shoulder is dismissed.
The thumb
251 Very brief submissions were made by counsel for the plaintiff in relation to this application and it was not addressed by counsel for the defendant.
252 Counsel for the plaintiff conceded that the thumb is separate from the shoulder and did not suggest there was an impairment of the upper limb as a whole.[96]
[96]T74, To Ha Lu v Mediterranean Shoes Pty Ltd & Ors[2000] VSCA 65
253 In terms of consequences of the left thumb, counsel for the plaintiff relied on the restriction in the interphalangeal joint that affects the plaintiff’s grip strength, as both examiners described. However, as counsel conceded, it is the plaintiff’s non-dominant hand and she does not require it for any particular activity such as writing or keyboarding.[97]
[97]T74
254 Whilst the plaintiff underwent surgery of the left thumb and continues to have some pain and restriction, I am not satisfied that consequences of any impairment are “serious” as at the date of hearing.
255 Accordingly that application is also dismissed.
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