Florrimell v Transport Accident Commission
[2013] VCC 785
•25 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-06052
| DOUGLAS FLORRIMELL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19, 20 and 21 November 2012 | |
DATE OF JUDGMENT: | 25 June 2013 | |
CASE MAY BE CITED AS: | Florrimell v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 785 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to cervical spine and right shoulder
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Humphries v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; 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 G A Lewis QC with Ms M Pilipasidis | Slater & Gordon |
| For the Defendant | Mr R P Gorton SC with Mr R H Stanley | Lander & Rogers |
HIS HONOUR:
1 This is an application pursuant to s93 of the Transport Accident Act 1986 (“the Act”) seeking leave to proceed at common law for damages arising out of a motor vehicle accident occurring on 27 July 2004 (“the accident”). The plaintiff alleges he suffered injuries to his cervical spine and right shoulder which impair bodily functions of the cervical spine and the right shoulder respectively. Alternatively, it is alleged the injuries to the cervical spine and the right shoulder combine to impair the function of the right shoulder.
2 The injury to the cervical spine is said to be a soft tissue injury plus aggravated degenerative changes therein, which have been treated by a series of nerve-block injuries and radiofrequency denervation paid for by the Transport Accident Commission (“the TAC”).
3 The injury to the right shoulder is said to be damage to the rotator cuff, bursitis, impingement syndrome, and aggravation of pre-existing arthritis. This injury led to surgery by surgeon Mr Russell Miller on 15 June 2009, once again paid for by the TAC.
Relevant legal principles
4 The court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.[1]
[1]See s93(6) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s93(17) of the Act, which reads:
“In this section—
...
serious injury means—
(a) serious long-term impairment or loss of a body function; ...”
6 In order to succeed in his application the plaintiff must satisfy the court that the consequences of either the cervical spine injury or the right shoulder injury, looked at individually, is or are “serious”; alternatively, the two injuries combine to impair the function of the right shoulder. In order that an injury be considered to be “serious”:
(a)The consequences of the injury must be serious to the particular applicant;
(b)Those consequences may relate to pecuniary disadvantage and/or pain and suffering;
(c)The question to be asked is whether the injury, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as at least being very considerable and more than significant or marked.[2]
[2]Humphries v Poljak [1992] 2 VR 129 at paragraph 140
7 The plaintiff alleges that the pain and suffering consequences of his injury satisfy the threshold test as being at least “very considerable”.
8 The defendant denies that this is so, and further denies that any impairment of the cervical spine and/or the right shoulder is causally related to the accident as at the date of hearing.
Serious injury template
9 As both injuries are, in effect, aggravations of pre-existing pathological conditions, the template is set out in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz.[3]
[3][2012] VSCA 60 at paragraphs 31–35
10 The template is as follows:
(a)First, the court must identify each injury;
(b)Secondly, the court should delineate the impairment consequences of each injury;
(c)Thirdly, where an injury is an aggravation of a pre-existing injury the court must determine whether the aggravation injury qualifies as a serious injury;
(d)Fourthly, in determining whether the plaintiff has discharged the onus of establishing that either injury is a serious injury, the court must make a comparison between the plaintiff’s condition before the accident and his condition after the accident, and should then make an assessment of the additional impairment, if any;
(e)Fifthly, as the pre-existing condition and the accident arise in separate circumstances, they should not be accumulated. Each injury has to satisfy the requirements of a “serious injury” in its own right rather than in combination with the pre-existing injuries.
Pre-existing injuries
11 Before the injury occurred, the plaintiff suffered from significant problems of his lumbar spine and had undergone a fusion at the L4‑5/L5‑S1 level, and also had pre-existing problems at the L3‑4 level. He had made complaints about symptoms affecting his left hip, and leg pain from time to time, which appeared to result from nerve-root irritation. The plaintiff had also had a left-shoulder operation and had ongoing problems with respect to that part of the body. He was on a disability pension because of his inability to work as a result of these conditions, and he was significantly restricted in most of his physical activities by the symptoms from these pre-existing injuries.
12 The plaintiff had also suffered from a compression fracture at T11 which led to the need for an MRI. There was also evidence of previous mobility difficulties, including sleeping difficulties and emotional problems. The plaintiff also suffered from pre-existing headaches for which he sought treatment from his general practitioner, Dr Rod Stobart.[4]
[4]T90 and T121
13 The plaintiff was also taking significant amounts of medication prior to the accident.
14 Under cross-examination he conceded he had been unable to work and was restricted in what he could do about the house because of his lumbar pain. Before the accident he said he did the housework, cleaning and painting and looking after the pool, and after the accident he stated he does all the domestic activities save for cleaning the pool and repainting the house every four years. He admitted that he was in a significant amount of constant pain because of his back before the accident, and very restricted in the activities that he could undertake.
Cervical spine
15 The accident occurred on 27 July 2004, and there was an immediate complaint of symptoms in that area of his body. A CT scan was taken of the cervical spine on 30 August 2004 which showed some instability at the C3‑4 level with also osteophytes at this level (Exhibit K). It is common ground that these changes pre-dated the accident. Further, an MRI was taken of the cervical spine on 10 November 2004 (Exhibit K) and is reported as showing “minor dehydration of the mid-cervical disc area, normal signals, no herniation and no nerve-root compression”.
16 As indicated above, the plaintiff was treated with nerve blocks and radiofrequency denervation by specialist anaesthetic Dr Tim McCarthy. As at 10 May 2006 he stated:
“Mr Florrimell has ongoing thoracic and cervical pain which has been much worsened since his motor vehicle accident on the 27th July 2004.”
17 It should be recorded that the plaintiff stated he achieved fairly good movement in the neck after this treatment, and that the ongoing complaints relating to the neck seem to be headaches from time to time (Exhibit E). However, it seems that although there is no further report from Dr McCarthy, he did repeat the line of treatment in 2007 and 2008.[5]
[5]Dr Stobart, general practitioner, T118, L11
18 Defence counsel submits that although the plaintiff was complaining of neck pain, inter alia, when he first saw Dr McCarthy on 12 October 2004, the only finding at that time was localised C5 tenderness with respect to the cervical spine, with Dr McCarthy ordering a cervical MRI “to exclude overt pathology there”. At this stage the only proposed treatment by him was to the thoracic spine by way of dorsal ramus blocks.[6]
[6]Exhibit E, report 19 October 2004
19 Thereafter there was some benefit from that treatment, and Dr McCarthy then sought authority to perform radiofrequency denervation in the thoracic spine, which was to be performed as a day case admission to Glenferrie Private Hospital.[7]
[7]Exhibit E, report 12 November 2004
20 It was only as at 10 May 2006 that Dr McCarthy sought permission to treat the cervical spine with dorsal ramus blocks at C4/5/6. The history on this occasion was one of cervical pain “which has been much worsened since his motor vehicle accident on the 27th July 2004”.[8] The pain-relieving procedures to the cervical and thoracic spine at that stage were in order to “reduce his pain and opiate intake which is escalating out of control with the onset of the colder weather”.
[8]Exhibit E, medical report 10 May 2006
21 On 11 September 2006 Dr McCarthy recorded that the cervical dorsal ramus blocks performed at the end of June gave good immediate relief of pain but the plaintiff was still troubled by left thoracic pain. Dr McCarthy was still requesting permission to perform bilateral radiofrequency denervations in the cervical spine, but there is no further report from him as to their outcome. In any event, Dr McCarthy does not identify specifically the injury alleged to be suffered in the motor car accident, although the inference is, perhaps, that he is treating the degenerative changes shown on the MRI of the cervical spine on 10 November 2004 by way of the cervical spine blocks.
22 Defence counsel submits that because of the gap between the 2004 MRI and the 2006 treatment there is insufficient nexus between the two to make that inference. He submits that the doctor is addressing a condition in 2006 of the cervical spine which was apparently causative of headaches. Before the accident happened, the plaintiff was also having problems with headaches, according to his general practitioner, and the plaintiff’s case is that the situation has worsened in that regard.
23 In any event, there is no doubt the plaintiff was suffering from neck pain and stiffness as a result of the accident when he was referred to consultant neurologist Professor Robert Helme on 2 December 2004. Professor Helme took a history of headache of four months’ duration subsequent to the accident. The plaintiff was complaining of continuous bifrontal headache which was throbbing in nature. He was taking Panadeine Forte, eight to ten per day, Naprosyn, Tramal, and OxyContin, for pain relief.
24 On examination, the neurologic examination was unremarkable. There was upper cervical spine tenderness and some limitation of rotational movement to the left and right. Shoulder abduction was reduced to 90 degrees, and there was mild tenderness at the rotator cuff insertion on the right. He noted that cervical x‑rays had demonstrated some degenerative disease of the cervical spine with spondylolisthesis at C3 on C4. Professor Helme was of the opinion that the plaintiff had “cervico-genic headache as a result of his accident”. He advised the plaintiff improvement would be slow, and he should report any changes at his next review with Dr McCarthy. The plaintiff was told to return to see him if his headaches continued after he ceased all reviews with Dr McCarthy.[9] Then apparently there was no follow-up.
[9]Exhibit G, Plaintiff’s Court Book (“PCB”) 61
25 Defence counsel then submits that there has been improvement since this time, such that orthopaedic surgeon Mr Brendan Dooley finds a full range of movement on 18 March 2005 (Exhibit 3). Further, Mr Dooley states that the treatment extended by Dr McCarthy “had continuing benefit for his neck problems”.
26 The plaintiff was cross-examined about the effect of this treatment to the following effect:
Q:“Did his treatment have continuing benefit so far as you can say for your neck problems?---
A:Yes, I would say so.
Q:Before you were treated by Mr McCarthy in respect of your neck, was there restriction on the movements you could make of your head either up, down - - -?---
A:A little bit of restrictions, yes.
Q:Now your range of movement of your head is pretty full, isn’t it?---
A:Yes, it’s pretty full on but when I drive the car and I have to look left and right all the time, it does get sore.”[10]
[10]T56, L25–T57, L3
27 As to the headaches diagnosed by Professor Helme and said to be continuing until the present time, the plaintiff said this in cross-examination:
Q:“Do those headaches stop you doing anything that you would otherwise be doing?---
A:They can get very painful.
Q:Do they stop you doing anything that you would otherwise be doing---?---
A:Yes they do.
Q:What things do they stop you doing?---
A:Having light, listening to TV, I have to have that right down. I can’t stand any noise.
Q:So you still listen and watch TV, but you keep it lower and the lights out---?---
A:At a very low – and I really can’t hear and I don’t enjoy it.
Q:Do the headaches affect you in any way other than that?---
A:No.
Q:And did you get any medication for the headaches?---
A:No, all my medication is like combined for all – all the pain.”[11]
[11]T55, L8-L20
28 In any event, Senior Counsel for the plaintiff in final address conceded that the consequences from the cervical spine injury were really limited to the production of additional constant daily headaches, but otherwise a full range of movement.[12]
[12]T212, L3-10
29 Accordingly, given that the plaintiff suffered from headaches prior to the accident, and accepting that there has been an increase in same since the accident, I am unable to find that those consequences discretely can be defined as serious in comparison with other cases in the range of possible impairments or losses such that the consequences could fairly be described as at least being very considerable and more than significant or marked.
Right shoulder: identity of injury
30 It is common ground that the plaintiff had pre-existing arthritis in the acromioclavicular joint of the right shoulder, at least, and that it required symptomatic treatment from time to time, as late as February 2004 by way of injection. It is also common ground that there was no complaint of right shoulder pain to the general practitioner until at least 10 September 2004, some six weeks after the accident. Counsel for the defendant submits that the plaintiff has failed to discharge the onus of proof with respect to establishing any injury to the right shoulder which is causally related to the accident.
31 Counsel for the plaintiff submits that the injury to the shoulder consists of a strain of the tendons in muscles in that area, leading to an inflammatory process which causes bursitis within the joint, which becomes radiologically apparent by way of ultrasound in October 2004.[13] The general practitioner Dr Stobart gave evidence that on balance of probabilities when he certified for the right shoulder on 10 September 2004 he believed that it was causally related to the accident. He stated:
“We’re just not quite certain why the bursa has become inflamed. It’s a cushioning area around the shoulder, it cushions the tendons from the bones above.”[14]
[13]T99–100 and PCB 92
[14]T100, L12 et seq
32 Further, he stated that the jolting received in the accident was consistent with the bursitis condition and the prospect of damage to the tendons. The fact that the shoulder pain came on within six weeks of the accident was “not a long time” according to Dr Stobart in terms of the pathological processes. He considered that the inflammation can take time to build up.[15]
[15]T122, L22
33 He went on to say further that
“With the passage of time the inflammation builds up around the damaged area and then starts to impinge, and that is the point of the decompression, it’s not necessarily to repair the tendon which is usually a failure anyway, but to get rid of the bone above it so that there is no pressure resulting from the swelling around the damaged area. So although you don’t cure the damaged area you get rid of the pain by getting the pressure. So inflammation can vary and take time to build up.”[16]
[16]T122, L28–T123, L8
34 Dr Stobart was then taken to a subsequent MRI which showed three tears of the muscles of the shoulder and of the tendon. He stated that the MRI mentioned two tendons, with the ultrasound mentioning a third, so that the MRI missed the supraspinatus tendon, but the reports on the two other tendon damages were not recorded by Mr Miller the operating surgeon. Dr Stobart said that even if the tendon was just thinned, as was noted on the operational report, that could be a cause of impairment of the use of the shoulder in any event:
“Because it swells up around that damaged tendon and that pushes on the bone and that is the reason for the decompression, to get rid of the – give the tendon – release it so that you get rid of the pain hopefully.”[17]
[17]T124, L17–27
35 Dr Stobart reviewed the plaintiff with respect to right shoulder pain on 12 November 2004, 14 January 2005, 27 August 2006, 30 March 2007, 29 January 2008, 25 February 2008, 13 May 2008, 26 May 2008, and 30 June 2008. It appeared that there was a clinical deterioration in the year 2008 leading to a referral to specialist shoulder surgeon Mr Russell Miller. He first saw the plaintiff on 11 August 2008.
36 Mr Miller took a history that there had been no problems with shoulder pain prior to the accident, but thereafter he was having persisting problems, particularly with right shoulder pain and discomfort, worse with overhead activities and worse with repetitive activities.[18] On examination he had a slightly restricted range of motion in the shoulder. There was irritability with overhead activity and markedly tender in the region of the acromioclavicular joint. An ultrasound taken of the right shoulder on 7 July 2008 revealed subdeltoid bursitis possibly with impingement and changes in the right AC joint. Further, an MRI of the right shoulder taken on 26 August 2008 was suggestive of a moderate-sized tear in the infraspinatus muscle. There were insertional changes at the subscapularis tendon, and degenerative change in the acromioclavicular joint.
[18]Exhibit H, PCB 64
37 Mr Miller performed surgery at the Freemasons Hospital on 15 June 2009. Arthroscopy revealed thinning of the supraspinatus tendon. The articular surfaces were normal. The subacromial spacer was tight with a large overhanging acromial beak, and a subacromial decompression was performed. There were impinging osteophytes on the under-surface of the clavicle, and these were resected with a power burr. There was scuffing, but no frank tearing of the cuff.
38 At review on 13 July 2009 the plaintiff was making satisfactory progress. A course of physiotherapy was prescribed. Mr Miller considered the plaintiff had suffered an injury to his right shoulder whereupon he developed an impingement syndrome and aggravation of pre-existing arthritic disease in the right acromioclavicular joint. At that stage he thought the prognosis for the shoulder should be good, although he did anticipate some “ongoing symptoms”.[19] He considered that the motor vehicle accident precipitated symptoms in relation to the right shoulder. In terms of the prognosis for the shoulder, he thought that it would create difficulties with work that involved repetitive arm actions or use of the arms in the above shoulder position or lifting of weights more than five kilograms on an ongoing basis. However, at that stage he thought there was “probably an overlay of chronic pain syndrome”.[20]
[19]Exhibit H, PCB 67
[20]Exhibit H, PCB 68
39 Mr Miller reviewed the plaintiff again on 22 June 2010. On this occasion he thought the plaintiff had neck pain and discomfort radiating into his shoulders, particularly the right shoulder, further down the right arm, and frequent associated headaches. Examination of the right shoulder revealed deltoid muscle wasting. There was also irritability with movement. With respect to the right shoulder, he stated:
“This man suffered an injury to the right shoulder with development of an impingement syndrome. He has undergone surgery for this with only a moderate response. He now has capsulitis. The prognosis for this is only fair.”[21]
[21]Exhibit H, PCB 73
40 He also stated as follows:
“It is clear that this man has associated and severe chronic pain syndrome and this blends with the multiple orthopaedic pathologies and it is quite hard to disentangle these issues.”[22]
[22]Exhibit H, PCB 73
41 However, with respect to the accident, he said:
“On the information available to me the right shoulder condition relates to the effects of the accident.”[23]
[23]Exhibit H, PCB 73
42 As to future treatment, he considered that the plaintiff would require ongoing conservative management with emphasis on pain management. Finally, he stated:
“It is clear that this man’s severe disease most particularly his severe chronic pain syndrome will impact on his activities of daily living, his capacity for social and leisure activities and employment activities.”[24]
[24]Exhibit H
43 Finally Mr Miller reviewed the plaintiff on 4 October 2012. He took a history that the plaintiff had pain and discomfort in the right shoulder, worse with repetitive activities and overhead activities. He stated that the shoulder pain merged with the right arm pain, and that he had had little improvement following the surgery. The plaintiff had apparently discontinued Panadeine Forte and tramadol and was now using oxycodone and OxyNorm. He had avoided anti-inflammatory agents because they caused him gastric disturbance. He was not having any physiotherapy or hydrotherapy, and had no plans for follow-up from Mr Tim McCarthy. He was taking anti-depressant medication.
44 Examination of the right shoulder revealed minor deltoid wasting. An ultrasound of the right shoulder taken on 18 July 2011 revealed minor tendinopathy and partial-thickness tearing of the supraspinatus tendon, but no other abnormality.[25] With respect to the right shoulder, he confirmed an injury to that area followed by surgery. He had had a poor response to the surgery; however, Mr Miller considered that the prognosis for the shoulder itself was good, and he thought that the pain in his right upper arm was predominantly referred from the cervical spine. He also considered that the plaintiff had an established and pre-existing chronic pain syndrome which complicated the assessment and management of his condition. Finally, he did not believe that the shoulder problems were a major part of his ongoing presentation.
[25]Exhibit H, PCB 79
45 The exact aetiology of the plaintiff’s shoulder condition is quite difficult to assess. He was seen for the defendant by Mr Brendan Dooley on 18 March 2005. On that occasion he found the plaintiff had a free range of movement in all directions of his right shoulder, with no evidence of muscle spasm or overreaction. Tests for impingement were negative. However, an ultrasound taken on 27 October 2004 showed mild subacromial bursitis with bursal impingement and no evidence of tearing in the rotator cuff of the right shoulder.[26] He considered there were “no signs of injury to his right shoulder of any moment”.[27]
[26]Exhibit 3, Defendant’s Court Book (“DCB”) 3
[27]Exhibit 3, DCB 4
46 Mr Dooley saw the plaintiff again on 23 December 2008. On this occasion he had more information, including a report from Mr Russell Miller dated 14 October 2008, several reports from Dr Stobart, and an MRI report of 26 August 2008 and an ultrasound report of 7 July 2008.
47 He took a history that over the past year the plaintiff had developed increasing problems with his right shoulder with pain and stiffness, leading to referral to Mr Russell Miller. X‑rays of the right shoulder had shown arthritic changes in the acromioclavicular joint and a right acromial bone spur. An ultrasound of his right shoulder on 7 July 2008 showed subdeltoid-subacromial bursitis, biceps tendon tenosynovitis; an MRI of his right shoulder showed a moderate-sized full-thickness tear of the infraspinatus tendon. He was continuing to take Tramal 200 mgs three times a day, and Panadeine Forte up to eight tablets a day. When the shoulder was particularly painful he took OxyNorm 20 mgs twice a day. Examination of the right shoulder revealed marked thickening of the right acromioclavicular joint. He had limited movements, with evidence of impingement pain, and tests for impingement were now positive.
48 His diagnosis was that although the plaintiff was still difficult to assess, he now believed that the right shoulder condition was accident related, in that immediately after the accident on 27 July 2004 he experienced the onset of neck pain and right shoulder pain. He now has physical signs of impingement relating to the torn rotator cuff in the right shoulder, and on magnetic resonance imaging he has a complete tear, mainly in the infraspinatus tendon, but almost certainly extending into the supraspinatus tendon at its posterior margin.[28] On this occasion the plaintiff’s main complaint related to his right shoulder joint, where he had evidence of rotator cuff impingement pain and subacromial bursitis, confirmed on magnetic resonance imaging. He took a history that the symptoms were severe in the right shoulder for around 12 months. He believed that surgery was now appropriate for the shoulder condition, which had become progressively worse. Significantly, he reported:
“Although when I last examined him, his right shoulder joint was relatively normal, I believe that the full thickness rotator cuff tear noted on the recent MRI does relate to the motor vehicle accident of 2004. He has complained of a painful right shoulder from the time of the accident; the tear may initially have been relatively small, causing minimal pain and allowing a free range of motion, but over the past twelve months his right shoulder condition has become progressively worse.”[29]
[28]Exhibit F, PCB 48
[29]Exhibit F, PCB 50
49 Further, Mr Dooley considered that the arthritic changes in the acromioclavicular joint were probably unchanged. Finally, he stated:
“One has to be cautious about advising surgery as he may develop post-operation adhesive capsulitis with marked stiffness in his right shoulder that might resolve only over a protracted period.”[30]
[30]Exhibit F, PCB 50
50 This prediction apparently was quite prophetic, as Mr Miller found, post-operatively, on 2 May 2011:
“This man suffered an injury to the right shoulder with development of an impingement syndrome. He has undergone surgery for this with only a moderate response. He now has capsulitis. The prognosis for this is only fair.”[31]
[31]Exhibit H, PCB 73
51 Mr Paul Kierce, orthopaedic surgeon, saw the plaintiff on behalf of the defendant on 10 September 2009. He was provided with material including the second report of Mr Dooley. He noted the history of the operation by Mr Miller on 15 June 2009, and at the time of this examination the plaintiff was having physiotherapy twice a week for his right shoulder. He was also seeing his general practitioner once a fortnight. Mr Kierce took a history that the only medication he was taking was an anti-depressant, which appears to be against the run of all the other evidence in this matter. He also took a history that the plaintiff’s wife helped him to shower and dress, when it appears that the evidence is really the other way.
52 On examination of the shoulder, he:
“... noted slight wasting of the right suprascapular muscles with tenderness anteriorly over the bicipital groove and the right rotator cuff. He was not tender over the right acromioclavicular joint. There was no crepitus on right shoulder movements. The impingement test was positive.”[32]
[32]DCB 14
53 His diagnosis was soft-tissue injury to the right shoulder. However, he considered that this injury should have “long since settled”.[33]
[33]DCB 15
54 Mr Kierce examined the plaintiff again on 11 September 2012. He was provided with the x‑ray and ultrasound report of the right shoulder dated 24 November 2003, the ultrasound report of the right shoulder of 27 October 2004, ultrasound report of the right shoulder of 30 January 2008, and x‑ray and ultrasound report of the right shoulder of 7 July 2008, plus an MRI scan of the report of the right shoulder (undated). He took a history that the right shoulder ached if the plaintiff elevated his right arm above shoulder level. Also, reaching behind him was painful. He noted the plaintiff was taking medications as follows: OxyContin 40 mgs, one in the morning, 20 mgs at night, and OxyNorm, 20 mgs, two to three during the day. On examination of the right shoulder:
“There was some wasting of the right suprascapular muscles and there was a slight wing of his right scapula. He had generalised tenderness all over the right shoulder girdle. The impingement test was negative.”[34]
[34]DCB 24
55 He noted that an ultrasound study had been undertaken on 18 July 2011:
“... which was consistent with degenerative change in the right acromioclavicular joint.”[35]
[35] Ibid
56 He further reached a diagnosis as follows:
“There is a strong history of previous right shoulder trouble preceding the motor vehicle accident. Any further injury to his right shoulder which he has sustained has now resolved in my opinion.”[36]
[36]Ibid
57 Because of the limited reference to the available radiological evidence, and because the clinical course of the condition was more elaborately detailed in Mr Dooley’s reports, I find that I prefer Mr Dooley’s opinions over those of Mr Kierce.
58 That being said, the plaintiff was also examined by rehabilitation specialist Dr Clayton Thomas on 22 February 2012. Examination of the right shoulder revealed mild limitation and internal rotation only. He also had some weakness of his rotator cuff abductors, but no sign of impingement. He had pain at end range, inflexion and abduction.[37] He otherwise does not seem to comment on the shoulder condition.
[37]Exhibit J, PCB 84
59 He was also examined by Mr M Flaim, General Surgeon, on 14 February 2008. He confirmed the bursitis condition but otherwise found no clinical evidence of impairment.
60 Doing the best I can, I consider the plaintiff has established on the balance of probabilities that he suffered a right shoulder injury in the accident, the pathology of which is most succinctly set out by Mr Dooley in his second report above. I consider that the injury has been causally related to the operation performed by Mr Russell Miller in 2009, and thereafter the plaintiff has suffered from ongoing problems with the shoulder which on a physical basis includes an adhesive capsulitis.
Right shoulder injury: consequences
61 Defence counsel has alluded to the onset of the chronic pain syndrome which clouds the issue with respect to the identity of the physical injury and its consequences, but in particular counsel points to the extensive nature of the plaintiff’s pre-accident health problems and the need for fairly constant painkilling medication and resulting in significant curtailment of the plaintiff’s activities such that any consequence from the right shoulder injury does not meet the very considerable test when compared with the range of possible impairments or losses and in particular those impairments which pre-existed the accident.
62 In comparing the plaintiff’s pre-accident health to his post-accident health he makes the following submissions:
“PRE-ACCIDENT HEALTH
(i) Low back pain
Double level fusion of L4/5 and L5/S1 in 1997
CT scan Lumbar spine 3/7/98 (PCB 87)
Facet joint injections and nerve block procedure
Plaintiff (64.1):
You were regularly suffering from a very considerable amount of
pain?---For my lower back, yes.
Ms Carter (136.8):
You agree with me that before the accident, Doug had a very bad back problem that was causing him pain?---He had a back problem, yes.
Dr Stobart (88.11):
In September and October 2003 and presumably into early 2004 ... he was also suffering very significant back pain?---That’s correct.
(ii) Sciatica left leg
Plaintiff (65.7):
Before the accident you would fairly regularly have pain or symptoms in your left leg?---Yes.
(iii) Thoracic pain
Compression fracture of T11
Report of Peter Kluc — Exhibit 6
(iv) Left shoulder pain
Dr Stobart reference to clinical note 12/12/1997 (82.17):
‘left shoulder, I had organised an ultrasound on his left shoulder, slight partial thickness tear, pain comes and goes, he has full range of movement. Suggest to have – and he’s careful with what he does with his arm.’
Surgery to left shoulder in 2003 (Hooper PCB 15)
Plaintiff (44.15):
You continued to have trouble with the left shoulder off and on until it was operated on by Mr Hooper in January 2003?---That is correct.
No incident giving rise to pain (82.29)(83.12)
(v) Right shoulder pain (see below) ]
(vi) Stomach problems
Plaintiff (58.2):
You had been to see the doctors who had identified your stomach problems as due to the Naprosyn type medicines well before the accident?---Yes.
Dr Stobart (83.23):
In September 2002 you were treating him for duodenal ulcer?---If the notes say that, yes.
And that he had stomach problems before the car accident which were related to the use of anti-inflammatory medication?---That would be
correct, yes.
(vii) Mobility difficulties
Used walking stick (65.16) (133.30)
(viii) Sleeping difficulties
Woke up at night regularly (51.20)
‘I’d wake up around about two-and-a-half, three hours sleep’ (52.21)
Waking because of painful low back (51.24)
Reliant on Mogadon (58.9) (52.4)
(ix) Emotional problems
Plaintiff (62.24):
‘Before the car accident you had a degree of depression and anxiety, and unhappiness?---Yes, yes.’
Domestic and family stressors (62.11)
Back pain (62.17)
Dr Stobart (84.14):
Was he on treatment for psychiatric or emotional, mental problems,
however you want to describe them, antidepressants, anxiolytic
drugs?---Yes, he was.
He as on that treatment before the car accident?---Yes.
(x) Headaches
Dr Stobart (90.17):
So, looking at that note [30/7/04 “Some increase in his headaches”] it would indicate that he’d had headaches before the car accident and he’s reporting an increase in those headaches?---Yes, that would be correct.
Dr Stobart (121.7):
My memory is that he did have headaches prior to the accident.
(xi) Significant medication
Panadeine Forte - up to 12 a day (51.13) (63.16)
Dr Stobart reference to clinical note 28/11/2003 (86.2):
‘He’s up to 14 Panadeine Forte a day, which is a toxic dose of paracetamol.’
Naprosyn — regularly (57.22)
Tramal — two to three per day (63.27)
Mogadon — every night to sleep (58.9)
Antidepressant medication (62.4)
List of medications from 2001 to April 2005 (Exhibit 1)
POST ACCIDENT HEALTH
(i) Low back pain
Back pain ‘much the same’ as before the accident (P1. 51.28)
Mrs Carter (137.16):
Your husband continues to have that back pain that we spoke about?---Yes.
(ii) Sciatica left leg
Pain in left leg if walk too far (57.4)
Symptoms have persisted ‘ever since’ the earlier accident (57.6)
(iii) Thoracic pain
Dr Pech reference to clinical note 19/7/2012 (33.2):
His thoracolumbar back pain, I think, is a significant problem. It may not be the focus of his – of the current proceedings, but that is one of the reasons why we are still prescribing him those - I’m still prescribing those medications.
For the thoracolumbar problem, is why he’s got the OxyContin and the OxyNorm?---That’s certainly part of the reason why he’s got it, that’s right.
Pain improved upon being advised fracture was not accident related
(54.7)
(iv) Left shoulder pain
‘still clicks and it’s still sore.’ (44.25)
(v) Right shoulder pain (see below)
(vi) Neck
Mr McCarthy’s treatment assisted neck problems (56.25)
Now range of movement is ‘pretty full on’ but gets ‘sore when driving a car’ (56.31)
(vii) Stomach problems
Stomach problems ‘since the accident have been much the same as they were before the accident’ (58.5)
Dr Stobart (84.9):
‘It’s also fair to say that [his stomach problems] aren’t significantly different by 2010 when you last see him?---Well, he no, no, but - no,
they weren’t. I imagine the pain was much the same [as 2002].’
(viii) Sleeping difficulties
Get ‘around two hours’ before waking up (52.26)
Have ‘a cuppa, smoke, and go back to bed’ (52.28)
Woken in part because of back pain as before (53.8) (52.1)
(ix) Emotional problems
Plaintiff (62.26):
Now you’ve got a degree of depression and anxiety and unhappiness, and are they much the same level now as it was then No they’re a
little bit - they’re a little bit more.
Dr Stobart (84.18):
He’s continued with much the same sort of [antidepressant] treatment over the - until you ceased seeing him?---I’d have to - I think that’s correct, yes.
(x) Headaches
No ongoing complaint to doctors (66.5)
Headaches affect ability to listen and watch TV — still watch (55.12)
‘Do the headaches affect you in any way other than that?---No’ (55.15)
(xi) Medication
Dr Stobart reference to clinical note 5/10/2 004 (96.19):
He’s still taking up to 12 Panadeine Forte a day. So, to try and save his liver I started him on a narcotic which - the court will be familiar with
the term OxyContin. It’s been severely misused over the last number of years. I started him on one or two 20 milligram tablets twice a day. That’s in effect a replacement of a proper dose of Panadeine Forte? I’m trying to get him to cut his Panadeine Forte back because of the paracetamol toxicity.
Dr Pech (31.2):
In the time that you have treated him, have you tried to get him to
reduce the medication that he is taking?---I’ve tried to change the regimen of opiate medications that he takes to manage his pain.
Medication intake recently reduced (64.23)
No worse for cutting down (64.31).”
63 Counsel then compares the plaintiff’s pre-accident activities with his post-accident activities as follows:
“PRE-ACCIDENT ACTIVITIES
(I) Not working
Receipt of invalid pension (4928)
(ii) Carer for wife
Wife had for a long time suffered diabetes, problems with vision, obesity
(50.5)
Wife unable to undertake domestic duties (50.10)(132.21)
Performed cooking and cleaning (50.14)
Drove wife to medical appointments (72.9)
(iii) Physical limitations
Restrictions caused by back pain - ‘take me longer than a normal’
(51.6) (133.26)
Performing household duties caused pain (51.11)
Had difficulties mowing the lawn (63.11)
Assisted by home help provided by Council (50.19) (50.27)
Mrs Carter (136.20):
I suggest that because of all those problems he had before the accident, Doug was limited in what he could do for you?---Yeah.
Plaintiff (5021):
‘[Home help] was provided to you because of the restrictions that you had because of your back injury?---Yes.
And your left shoulder injury?---Yes.
And your right elbow injury?---Yes’
POST-ACCIDENT ACTIVITIES
(i) Not working
(ii) Carer for wife
‘You are still the carer for your wife? Yes.’ (58.23)
Drives wife to medical appointments (58.24) (138.20)
Assists wife with showering and dressing (139.5)
Plaintiff (59.8):
‘Do you have to assist her in the shower or dressing? Yes, I wash her and all that.’
And help her dress afterwards? Yes.
Encourages wife to dress - ‘I always go crook at her’ (59.11)
Mrs Carter (139.12)
And your husband goes crook at you?---He goes crook at me because I never leave the door.
...
Your husband encourages you?---Yes, he pushes me. He pushes me to try to get me better. He pushes me to get on the walker.
(iii) Domestic chores
Plaintiff (59.26):
You do the cooking that needs to be done? Yes, I do.
You do the cleaning that needs to be done around the house? Yes, I do.
(iv) Shopping
Plaintiff (59.15):
‘You still do the shopping for the household? Yes, I do but I have to do them in increments.’
Plaintiff (59.23):
‘I just go to the shop, buy a few things, take them home and go again the next day if I need.’
Plaintiff (70.15):
‘I would say around about once every second day.’
Mrs Carter (139.26):
‘Your husband still does the shopping you say in your affidavit?---Yes, every couple of weeks or more. He used to go shopping nearly every day.’
...
To me, he doesn’t go shopping hardly ever. (140.16)
(v) Gardening
Plaintiff (59.29):
You mow the lawns? Yes.
Plaintiff (60.9):
‘The only - the thing I don’t do in gardening is I can’t get down and pull the weeds out, that I cannot do. I’ve tried but I just can’t do it.”
Findings
64 As already indicated, I prefer the combined evidence of Mr Miller and Mr Dooley and that of the two treating general practitioners over that of Mr Kierce and Mr Flaim as to the identity of the injury and its permanent effects. I accept that the plaintiff has ongoing physical restrictions due in part to an adhesive capsulitis which is a direct consequence of the surgery and the accident.
65 Doing the best I can, I consider that the plaintiff has just discharged the onus of proof with respect to the consequences from the shoulder injury satisfying the “very considerable” test. The reasons are as follows:
(a)Dr Stobart noted that when medication was reduced, so was the range of movement of the shoulder.[38] The medication is efficacious for the shoulder apart from the need for medication for other injuries.
[38]PCB 36
(b)Apart from medication, there have been injections and surgery. The pain and restriction remain.
(c)Constant daily pain requiring medication can be said without more to indicate a very considerable impairment.[39]
(d)The ongoing daily symptoms are recorded in the first affidavit CB 12 [9]; 13 [12]; second affidavit PCB 17–18. In the third affidavit at paragraph [5] the plaintiff refers to the difficulty in washing his hair. This was corroborated in a spontaneous manner by the evidence of Mary Rose Carter.[40]
(e)The consequences as spelt out in the affidavit of the plaintiff and his wife have not been damaged in any material way in evidence.
(f)The shoulder injury worsens his sleep pattern.[41] This is corroborated by the wife at T142.
(g)The plaintiff is impeded to a serious degree in the range of household activities such as the frequency of lawn mowing for which the TAC paid for some time thereby acknowledging a causal link to the accident.[42] Painting of the house has ceased due to shoulder problems, showering of his wife is substantially reduced, driving is affected, cooking has become a much more difficult task.[43]
(h)The plaintiff considered that he did a reasonable job caring for his wife before the accident whereas since the accident, a “poor job”.[44]
(i)The plaintiff has to manage the added burden of an inflammation condition in the shoulder of his dominant arm in the face of a range of other bodily impairments. The plaintiff was already coping with his lumbar condition.[45]
(j)Daily pain requiring constant medication can without more be said to be an impairment of very considerable consequence.[46]
(k)The stoicism of this plaintiff is attested by his wife’s evidence. Such may well explain the infrequency of complaint to the treating GPs. Such should not be held against him.[47]
[39]See Dodds-Streeton JA in Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 as approved by Tate JA in Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at [91]
[40]T141, L29
[41]T52, L31
[42]T72, L25
[43]T50-52 and T70-74
[44]T73, L4
[45]PCB 13 at paragraph 12
[46]See Dodds-Streeton JA in Kelso v Tatiara Meat Co Pty Ltd (supra) as approved by Tate JA in Sutton v Laminex Group Pty Ltd (supra) at [91]
[47]See Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at [47] and Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at [3]
66 Accordingly, leave will be granted to the plaintiff to commence proceedings at common law for damages arising out of the motor vehicle accident on 27 July 2004.
67 I will hear the parties as to consequential orders.
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