Foy v Transport Accident Commission
[2021] VCC 1360
•21 September 2021
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-05680
| ROSS JOHN FOY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE BOURKE | |
WHERE HELD: | Ballarat/Melbourne (e-hearing) | |
DATE OF HEARING: | 26 August 2021 | |
DATE OF JUDGMENT: | 21 September 2021 | |
CASE MAY BE CITED AS: | Foy v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1360 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – impairment to the right shoulder – range – stoicism
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Richards & Anor v Wylie (2000) 1 VR 79; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v CalcoTimbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Mr S Jurica | Saines & Partners Pty Ltd |
| For the Defendant | Mr P Scanlon QC with Mr S Martin | Solicitor for the Transport Accident Commission |
HER HONOUR:
Introduction
1This is an application brought by an Originating Motion for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by the plaintiff arising out of a transport accident (“the accident”) which occurred on 13 July 2016 (“the said date”).
2The application is brought pursuant to s93(4)(d) of the Act. Sub-section (6) 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):
“Serious long-term impairment or loss of body function.”
4The body function in this application is the right shoulder.
5The 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.
6The 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 itself constitute or be the producer of the impairment of a body function.[1]
[1] Richards & Anor v Wylie (2000) 1 VR 79
7In 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 at least “very considerable” and more than “significant” or “marked”.
8The plaintiff relied on three affidavits and gave viva voce evidence. He was cross-examined. He also relied on an affidavit sworn by his wife, Nicole, on 23 July 2021, and his brother-in-law, Colin Scott, sworn 26 July 2021. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
9The issue of range was in dispute,[2] with counsel for the defendant submitting the indicia set out in Haden Engineering v McKinnon[3] were not met, and any right shoulder impairment did not meet the serious injury threshold.[4]
[2]Transcript (“T”) 6
[3](2010) 31 VR 1
[4]T7
The Plaintiff’s evidence
10The plaintiff is presently aged fifty-four, having been born in February 1967. He is married with two children, aged twenty-one and seventeen. He is right handed.
11Having finished Year 10, the plaintiff had a range of manual jobs and ran his own tip-truck business for about three years. He then did some driving sub-contracting work for a couple of years on and off. He next worked at Whitehead Timber Sales for about five or six years. While working in the timber yard, he strained his right shoulder and had some physiotherapy but got over it.
12About fifteen years ago, he had lap band surgery and, in early 2020, he had a gastric sleeve procedure.
13About eight and a half years ago, the plaintiff started full-time work with CDC Buses as a bus driver.
14At the time of the accident, he was working forty-two to forty-four hours a week, on a suburban bus run within the City of Ballarat. If there was a shortage of drivers, he could work up to fifty hours a week. The bus carried about 67 passengers and it was a similar size and dimension to the one he currently drives.[5]
[5]T9
The accident
15On or about the said date, the plaintiff was driving a CDC bus with forty school children onboard and about half a dozen adults. As he was driving along Sturt Street, Ballarat, he saw a Volvo come from his right-hand side which failed to give way to the bus. The plaintiff was then travelling about 40 kilometres per hour and was grabbing the bottom of the steering wheel with his right hand. He jumped on the brakes, braced himself, but collided with the Volvo, wrenching his right shoulder (“the accident”).
16In his WorkCover Worker’s Injury Claim Form, the plaintiff described he “held the steering wheel”, and “went over wheel while holding onto it wrenching shoulder”.
17The Victoria Police Incident Report included a witness description of the accident that “the (bus) sounded horn braked heavily and tried to avoid [the other vehicle but] had nowhere to go and hit [that vehicle].”
18The police and ambulance attended the accident scene but, at the time, the plaintiff’s concern was looking after the passengers.
19A few days later, he completed an incident report at work as his right shoulder was sore. He thought it was just a muscle strain, so he put up with it for a while. However, over time, he noticed it was getting worse and thought it should be checked out.
20A few weeks after the accident, he saw his general practitioner at Badac Medical Centre, who then sent him for an ultrasound of his right shoulder on 13 September 2016. He was told this showed a full-thickness tear. Some time after that, he commenced physiotherapy.
21After the accident, the plaintiff kept working, putting up with the pain. However, his shoulder was not getting any better, so he saw Mr Scott Mason, orthopaedic surgeon, in August 2017. He had another ultrasound and then an ultrasound-guided injection to his right shoulder which did not help much. He also had an MRI scan.
22Mr Mason operated on the plaintiff’s shoulder on 17 November 2017. He told the plaintiff he had drilled a hole in the bone and re-attached the ligament to the anchor (“the surgery”). After the surgery, the plaintiff had more physiotherapy for his shoulder for about a year, but really, it did not help much.
23He had a couple of weeks off work after the surgery. During that time, he had physiotherapy from Ms Izard, whom he agreed recorded nine weeks post-surgery he was doing well in terms of his movement and was planning to return to light office duties and would soon return to driving if tolerated.[6]
[6] T11
24The plaintiff started rehabilitation and they had gradually got him back into work – two hours a day for the first week and then back to four hours, and gradually building up to full time, returning to driving in early 2018.[7]
[7]T10
25He agreed he could return to full work duties and just put up with the pain. The pain was less after the surgery from what it was, and he was left with the restriction of movement he described in his affidavit.[8]
[8]T15
26In about March 2020, the plaintiff started a new job working full time for Littles Coachlines, doing a public transport Victoria country run. He changed to that job because the hours were more family-friendly, and there was no weekend work. His was paid roughly the same as at CDC, maybe a bit less.
27He now finishes work by 5.30pm and he is home to have dinner with his family. He also gets more time with them by not working weekends. In return for that, he has to work an extra eleven hours or so a week.[9]
[9]T16
28When driving the bus, he tends to rest his right arm on the driver’s side door. His right shoulder becomes more painful the longer he drives. It is also harder with turns, as there is more reaching with the steering wheel when turning the bus.
29Generally speaking, when he is steering, he has his arms out in front of him constantly and his right shoulder gets really fatigued, and gets more and more painful during the day, especially worse on windy days. Any movement he does with the steering wheel “all comes through … [his] shoulders all the time”. On a windy day, “it is if you’re walking along with an umbrella. Multiply that by 100 times of the wind blowing on the side of the bus.” He has to keep the bus in its lane and that is not an easy job.[10]
[10] T32
30He also has problems putting luggage in the bin under the bus. He has to grab the top of the luggage with his right hand and then puts his left arm underneath it, trying to lift it up to an angle so he can slide it into the bin. That puts a lot of pressure on his right shoulder, “trying to use the strength that’s not really there”.[11]
[11]T32
31By the end of the day, his right shoulder is pretty sore and tired, and when he gets home, he tries not to do too much with it and sits on the couch and tries to give it a rest.
32He puts up with the pain and keeps driving because: “Yeah, I grew up with country values, you’d get up and work, that’s what you got to do.”[12]
[12]T31
33Most of the time, the pain is “two out of 10 constantly” but, as the day goes further on with more moving of the steering wheel and the luggage, it probably gets to five or six out of ten at the end of the day. “It’s a real pain in the backside.” When he gets home, he has to sit down and get his own tea and “that sort of stuff”, and he lies on the couch. He has to let his right arm just rest on the couch, so there is no weight on his shoulder.[13]
[13]T33
34The next morning, he gets up and does his exercises, doing different motions with his arms instead of just sitting there, just doing the one thing all the time. He does the exercises to try and loosen up before driving. Even during the day, he still does these exercises.[14] He has to go through this five days a week. It is not fun, but it is just something he has to do. If he wants to keep working, he has to keep doing his exercises and just keep pushing through it.[15]
[14]T33
[15] T34
Pain
35As at April 2020,[16] the worst pain was in his right shoulder where he had a constant dull pain. After driving for a day, that pain got worse, and his shoulder felt a lot more tired and painful. Now and then, he experienced pain going down into his right arm, and had tingling in his fingers. Sometimes, he also had a bit of numbness in his fingers.
[16]First affidavit
36His right arm and shoulder were a lot weaker than they used to be, and he did not have anywhere as near as much strength in his right arm and shoulder as before. Shoulder movement was restricted. It felt pretty stiff on colder days. Every now and then, he had clicking and grinding in the shoulder.
37His current symptoms are pretty much the same, with the constant dull pain in the right shoulder and a sharp pain if he does a quick or sudden movement with it. That sharp pain then returns to a dull pain. He often has a pressure type feeling in his shoulder.
38He is generally a lot more conscious and cautious with the movements of his right upper limb due to shoulder pain. He thinks about it a hell of a lot more.
Recent treatment
39As of April 2020, he did not bother seeing a general practitioner or physiotherapist as it did not make a difference. His right shoulder was what it was. He did exercises each day before work to try to loosen it up. He did not like the idea of taking any form of tablets, so he put up with the pain as best he could. He is “not a tablet sort of person” and he “just pushes through the pain”.[17]
[17]T12
40He still does not really bother seeing anyone as there is not much they can do. Each morning he does his shoulder exercises with straps and does stretches, using a TheraBand, a sort of elastic hockey strap. He can get his arm up in a lot of pain. He knows when he has to stop.[18]
[18] T14
41He still does not like taking tablets. He has grown up with putting up with things as best he can. He gets in the spa about two or three times a week and gets the jets onto the back and front of his shoulders.
42The plaintiff had a further CT-guided steroid injection into his shoulder on 27 July 2021 organised by Mr Mason. This helped dull the pain for about three weeks but made no significant difference to his symptoms.
43He had this injection when he was at work on the bus run back from Maryborough. He had two hours before the return trip, so he had the injection then. He has just put up with it and kept driving.[19]
[19] T12
Domestic activities
44The plaintiff generally found it a lot more difficult trying to do things around or above shoulder height because of pain. It was hard lifting things, especially heavy things, with his right hand. He now tried to do more things with his left arm. He also found it harder doing repetitive-type jobs with his right arm.
45Before the accident, he helped out with housework, including vacuuming and putting out the washing. He still does housework when he can, but it is harder with his shoulder pain, especially hanging out the washing and moving furniture when he vacuums. He pretty much avoids the heavier tasks.
46Pre-accident, he had no dramas doing and carrying the shopping. He now tried to load up the left arm as much as possible. Usually, the right arm and shoulder became pretty sore, and he just did not have his previous strength. He still goes shopping but uses a trolley a lot more and gets the kids to help a lot more with lifting. He “now basically do[es] all the shopping”.[20]
[20] T19
47He agreed, as Dr Menz reported, that he is able to do the cooking and some of the cleaning.[21]
[21] T37
48Before the accident, the plaintiff mowed the lawns himself, but paid a neighbour to do it at their old house after the accident.[22] It was just too hard to pull-start the mower and push it with his shoulder pain. He and his wife both tried to do the pruning when it needed doing, but when he tried doing it, he found it harder reaching for things with his shoulder pain and restriction.
[22]T19
49Now that the plaintiff has moved, he does not have the neighbours to help. He tries to mow the lawns when he can, depending on how he is feeling. The front yard has a split level, so he gets his son to lift the mower up the four steps to the second level. The plaintiff also takes a break in between doing the two levels. He gets his son to sometimes finish off the lawn, especially with the hilly parts. He avoids using the Whipper Snipper, as it is really hard with the angle of the block.
50He gets his son to help in places that he cannot do when doing the lawn. He has bought a lighter electric mower, but still finds that pushing up and down aggravates his shoulder.[23] “Well, … [it’s still my job]. Like, I’m the bloke, I’m supposed to do the lawns and that stuff.”[24]
[23]T19
[24]T20
51When they moved house, the plaintiff had to get removalists to do the moving work. If it was not for his shoulder injury, he would have done the lifting involved in the move. He felt pretty useless, not being able to do things he previously would have done.
52Before the accident, he had no problems walking their old dog. As at April 2020, they had a new dog, but he avoided holding the lead in his right hand so that it did not jolt or pull on his right shoulder.
53He now generally avoids walking their dog. His wife now does it for him. He feels a bit bad that he does not exercise the dog anywhere near as much as he would like to.
54He has a problem being dragged along walking the dog. He takes the dog for a walk occasionally, but his wife mainly does the leading. He does so on very rare occasions because the dog needs exercise and it cannot be locked up all the time. He leads it with his left hand.[25]
[25]T18
55Walking is okay and the plaintiff can walk about two kilometres. His right arm is just a bit sore at the end of it, just hanging down, but it is alright.[26]
[26] T15
56Before the accident, he enjoyed laying on the floor, resting on his elbows watching television, but now avoided doing that, as putting weight on his right arm aggravated his shoulder pain.
57When standing for a long time, he now felt his right shoulder was hanging down, and he felt more of the pain in the joint itself. When his shoulder is in the one position for a long time, it becomes stiffer and sorer.
58He now found if lying on his right side, he was woken by right shoulder pain. Sleeping now on his back or left side resulted in more broken sleep. He now uses a CPAP machine, as he has sleep apnoea. His right shoulder still wakes him up when he moves onto it. That is what aggravates it and wakes him up. He then starts feeling pain coming through the shoulder and has to move and lie on his back. As his sleep is disturbed by pain every night, the next morning he wakes feeling really fatigued and is more irritable.[27]
[27]T31
Personal issues
59He now found it a bit harder showering and has difficulty washing his head due to shoulder pain. He has problems shaving his head with an electric razor and has to finish off the job with his left hand because of right shoulder pain. He demonstrated his difficulties shaving the left side of his head. It is also harder to dry himself.[28]
[28] T17
60Since the accident, because of shoulder pain, it was difficult reaching around to wipe his backside. He was just too uncoordinated with his left hand. He got a bidet set-up which helped with this but had problems when he had to use a public toilet. There is no bidet at the new house, and he is considering getting one to help with his continuing problems in that regard.
61He has found it more difficult putting on t-shirts, tops and jumpers because of right shoulder pain. It was also hard tucking in his shirts around the back with his right arm.
62He has adapted the way he gets dressed and undressed with tops, putting the right arm through first and then the left, and he also puts a belt into his pants before he puts them on.
63His sexual activity has reduced as he now finds it harder to get into certain positions due to shoulder pain and has put on weight.
Sporting activities and hobbies
64Pre-accident, the plaintiff loved playing golf about once a month, but since had avoided playing as he just could not seem to get the backswing. He just did not have the range of motion for it, and it aggravated his shoulder pain. He definitely missed playing.
65He was “never a handicapper”. He was only a hacker who liked going out and having a hit. He previously played some competitions with his mother when she was alive, but he never played in normal competitions.[29]
[29] T20
66He could not recall how long it was before the accident that he last played golf as it was so long ago. He would say that it was probably within four to six months, “maybe”. He did not know – just whenever somebody was going out, they asked him if he wanted a swing and, if he could go, he would go out. It all depended on what he was working and his roster. He played once a month, depending on his roster. He agreed he was not playing once a month immediately before the accident because of his work commitments.[30]
[30]T21
67Pre-accident, he enjoyed dirt bike riding about once a month, but now avoided this activity as he just did not want to risk it, and he reckoned it would be pretty hard with the jolting on the tracks and in the bush with his shoulder.
68He did try bike riding maybe once or twice after the accident, but it was just too hard with all the jarring and jolting on his shoulder with the bumps using the handlebars, so he ended up “flogging off” the bike.
69Before the accident, he really enjoyed restoring his old cars. It was a lot of fun and he made money out of it. He now has two cars: a 1967 Chevy Bel Air and a 1963 Austin Healey Sprite convertible. He can still tinker around on them and do a “bit of the easier stuff”, but it is just way too hard with his shoulder, being able to do the heavier stuff, and he now pays a mechanic to do it. He can no longer make money on the cars like he used to. He previously derived a lot of pleasure out working on cars, and it was really frustrating not being able to do so much any more. After the accident, he also ended up selling two other cars that he was doing up, as there was just too much work to be done on them.
70Working on cars before the accident was not a business, it was a hobby and he did not declare any income from it. He is now helping out mates and he works on his own car just as much as he can. He has a bit of a play around. He will do the oil change and “that sort of stuff”, and if he can get under the vehicle, undo the bolts if it is not too tight. His involvement now is very limited.[31]
[31] T27,28
71He can tinker but not do the work like he used to. He replaced the headlight and taillight globes on his Ford Territory last weekend. This job would usually take him fifteen minutes, but it took an hour because he had to try to manoeuvre his right arm around to get in the right place, “as it just hurt”.[32] He goes out into the shed probably once a week.[33]
[32]T28
[33]T29
72Pre accident, he enjoyed shooting hoops with the kids and coaching them play basketball. If it was not for his shoulder injury, he would be back coaching basketball with young children in the Koori Carnivals. He just did not feel like he now could coach and show them how to play due to his shoulder restriction and pain.
73Pre accident, he enjoyed a bit of roughhouse play with the kids, but since then he avoided doing it as it was too hard on his shoulder. He also misses kicking the footy with his son.
74Before the accident, the plaintiff enjoyed playing Masters Aussie Rules, but had avoided doing so since because it just got too risky, getting knocks on his shoulder, and he did not have the movement to handle the ball, handball, take marks and tackle. He was peeved off that he was not playing anymore, as it was a good bunch of blokes and it was good fun.
75He played Masters Footy in the over thirty-fives for about five or six years. He also sometimes filled in for the over forty-fives. They played around ten rounds a season and he trained twice a week and played once a fortnight. The season ran from April to mid July, with games played on a Sunday. He was playing for Ballarat Masters in the local Masters league, which played against towns like Colac.
76He has not played a game since the accident. He tried a bit of training, but it was just too hard, and it really aggravated his shoulder pain. He really misses it. If it was not for his shoulder injury, he would like to be having a crack and playing now.
77In 2014, he played as much as he could when he was not working, so he thought he played the majority of the season.[34]
[34]T23
78In 2015, he had gone down to training and “sort of mucked around with the boys”, but with working on the weekend, it made it hard to play and he got a couple of games in.
79In 2016, he started training, but was not going to be playing until probably about three or four games into the season because of his work roster. Footy gave him general fitness and he had a “bit of sport with the lads”.[35] He then had the accident and that “sort of stopped that”.[36]
[35]T22
[36]T8
80Pre accident, he missed games for work commitments and also social engagements. His commitment to playing was waning only due to work commitments - “Like, there’s guys that are still playing footy now that are up into their 60s and all there. It’s a modified comp, for older people to play, and has a good, fun, social aspect. And it keeps fitness.”[37]
[37] T24
81He agreed that before the accident, his football involvement was minimal because of his work commitments.[38]
[38]T26
82He still does social activities with family and friends, but it is now hard with COVID-19. They do not go on their outings like they used to in the bush. They used to go kayaking every now and again in his son’s kayak.[39]
[39]T31
83Since the accident, his life had been annoying with his injury. He just had to accept it and adapt things that he did in his life due to his pain. He was just trying to do the best he could with what he had.[40]
[40] April 2020 affidavit
84If he did not have his shoulder problem, his quality of life would be a lot better, being able to do more things with people, “muck around with the kids, shoot the hoops, kick the footy around with [his] son, and all of that stuff – Yeah, it’d be a hell of a lot different than it is now.”[41]
[41]T34
Lay evidence
85The plaintiff’s wife, Nicole, swore an affidavit on 23 July 2021. She works as an Aboriginal community liaison officer at the City of Ballarat.
86She sees the plaintiff often has shoulder pain. At times, she sees him grab his right shoulder, and she knows, from watching him, that he finds it hard doing things, but he is a proud person and does not like to complain. Often, she sees him doing his exercises and stretches, and he uses the spa at home. She now walks the dog.
87The plaintiff has problems with sleep. He struggles to do a lot of things above shoulder height or lift things. He has told her about his toilet issues. She confirmed his use of a bidet, his problems getting dressed and his problems doing household handyman tasks.
88She now does the majority of the housework. He still mows the lawns. Now, he tends to do smaller shopping trips and has problems carrying heavier bags.
89He now avoids playing golf, having previously played monthly. Sometimes she watched him play in the Masters footy, but he had not played since the accident because of shoulder pain. He avoided dirt bike riding. He hardly does any work on his old cars. Their sex life is pretty much non-existent because of his pain and mood.
90He tells her of his difficulties at work.
91He is a pretty proud person and finds it hard saying he needs help because of his shoulder. They had to pay someone to do some shelving in the storage area and clean the gutters, which he would normally do.
92Pre accident, the plaintiff enjoyed coaching kids’ basketball at the Koori Carnivals. He cannot do this now because of his shoulder injury. He is grumpier and more sensitive than he used to be. Pre accident, he was a happy-go-lucky person who enjoyed a joke. Now, it is hard to say something to him without him maybe taking it the wrong way. He is not the same person.
93The plaintiff’s brother-in-law, Colin Scott, swore an affidavit on 26 July 2021. He has known the plaintiff for about twelve years.
94Pre accident, he played Masters Footy with the plaintiff for about five years. They played fortnightly and trained about once a week. Colin kept playing Masters until about two years ago, when aged fifty-three.
95The plaintiff definitely enjoyed his footy, and he was not happy after the accident that he could not continue with it because of his shoulder. The plaintiff showed him after the accident how he could only get his right arm up to a certain height. Some time after the accident, the plaintiff told him that he found it hard not being able to do manual stuff around the house due to his injury. Post injury, he and their footy mates do not see much of the plaintiff, as he has not been involved playing and socialising with them.
The Plaintiff’s medical evidence – treaters
Dr Majhi, general practitioner – Badac Medical Centre
96Dr Majhi reported on 13 August 2019 that the plaintiff was a regular patient at the clinic. He had seen him once about the shoulder injury, and the plaintiff had seen other doctors for this concern on various occasions.
97The first consultation regarding the accident injury was on 9 September 2016, following which the plaintiff had investigations and specialist referral.
98Dr Majhi thought the accident, while working as a bus driver, might have significantly contributed to the injury. The injury could also be explained by repetitive use of shoulders in work. There was no other past medical history to suggest another contributing factor.
99The clinical notes indicated that the plaintiff returned to work by 26 March 2018 and resumed pre-injury duties with restriction to lift above his head. Dr Majhi would not call this as incapacity. He recommended ongoing physiotherapy and analgesia as needed in the future to assist the plaintiff being in work and to continue his day-to-day activities.
Dr Oliver, general practitioner
100Dr Oliver, from Madac, reported in August 2021.
101She thought that the plaintiff has a capacity to work in his pre-injury employment as a driver with no heavy lifting above his shoulder or with his right arm. He can complete general activities of daily living, although he can have issues with pain and stiffness, which will limit sports where he needs to lift his right arm above 90 degrees. He may require physiotherapy at times to maintain his shoulder movement, and possible occasional steroid injections.
Physiotherapy
102The plaintiff originally had physiotherapy with Joe Milcan, who completed a treatment plan in October 2016. He later had physiotherapy at Newington Physiotherapy with Emily Izard, following a referral in January 2018.
Mr Mason, orthopaedic surgeon – Ballarat Orthopaedics
103Mr Mason from Ballarat Orthopaedics wrote to the insurer in September 2017. He advised that since the accident, the plaintiff had ongoing issues with shoulder pain and stiffness affecting his ability to perform his daily and occupational functions.
104He advised that the plaintiff had exhausted conservative management, and subsequent investigations had revealed he had significant subacromial bursitis and a rotator cuff tear of his right shoulder. He believed the plaintiff would benefit from a right shoulder scope subacromial decompression and rotator cuff repair, and sought funding for that procedure.
105He operated at St John of God Hospital in Ballarat on 17 November 2017. At the time of the surgery, the plaintiff had quite a significant tear, which was repaired with surgical anchors. His glenohumeral joint was in good condition, but he did have marked subacromial bursitis and a decompression was performed.
106The plaintiff made steady progress post surgery. His wounds healed without any significant issue and he commenced physiotherapy, with which he was very compliant and committed. Over the next few months, he continued to improve in terms of his shoulder function and level of pain.
107When seen on 8 May 2018, the plaintiff had done very well in terms of his post-operative progress. He had a full range of motion, with minimal pain or dysfunction in the shoulder, and had returned to all regular duties. Mr Mason then made no further plans to see him, but invited him to come back again and see him if he had any ongoing concerns.
108The plaintiff was then reviewed in early 2021, following referral for some issues with current pain in his right shoulder, as well as associated stiffness.
109When seen on 23 February 2021, the plaintiff was complaining of progressively worsening pain in the right shoulder over the last six months. He also had some reduced range of motion and things were affecting his ability to perform daily tasks, such as dressing and performing activities with an overhead component. He also had trouble sleeping on his right shoulder.
110On examination, there was tenderness to palpation around the anterolateral aspect of the shoulder joint and mild tenderness over the AC joint. There was discomfort on movement and there were some mild signs of subacromial bursitis. Mr Mason wondered if the plaintiff also had an element of AC joint osteoarthritis. They had a long discussion, in which the plaintiff advised he was not interested in any further surgery.
111He offered to repeat some imaging of the shoulder, which the plaintiff declined. Instead, they decided on conservative management with analgesia and physiotherapy, and he organised for the plaintiff to have a cortisone injection into the right subacromial space, to see if that would take away some of his symptoms. He had not seen the plaintiff since.
112Mr Mason thought it likely the plaintiff would have ongoing issues as a result of his shoulder injury, which was likely to become chronic, which could impact on his ability to perform his work as a bus driver.
113From a medical perspective, the next step would be to perform some repeat imaging to quantify exactly the course of the plaintiff’s pain, to see if it is related to his previous shoulder injury. He noted that the plaintiff wanted to continue in the meantime with conservative management.
114He concluded that it is likely the plaintiff has an element of chronic shoulder pain resulting from his original injury which could impact on his ability to work, as well as some of his daily activities.
Investigations
115Following an ultrasound of the right shoulder in September 2016, it was reported there was bursitis calcific tendinosis and a full-thickness tear of the supraspinatus tendon.
116An ultrasound was carried out on 7 May 2017. It was noted “work injury three months ago. Slow improvement.”
117The impression was moderate SA/SD bursitis with bursal impingement above 80 degrees and an ultrasound-guided bursal injection was booked in for 16 May 2017. There was chronic anterior to mild supraspinatus full-thickness incomplete tear on the background of enthesopathy. There was subscapular tendinosis and enthesopathy with no evidence of a tear. There was non-tenderness AC joint arthropathy.
118The plaintiff had a right subacromial subdeltoid injection on 16 May 2017.
119There was a further MRI scan of the right shoulder on 29 August 2017. It was reported there was a complex tear of the supraspinatus tendon with full-width partial thickness articular surface and anterior full-thickness component. Normal supraspinatus muscle. Low grade partial tear of the subscapularis and possibly infraspinatus tendon. Normal glenohumeral joint. Subacromial outlet stenosis. Mild bursopathy.
120In November 2017, Mr Mason, performed a right shoulder arthroscopy, subacromial decompression and rotator cuff repair. The plaintiff had a significant tear of his rotator cuff tendons which were repaired with anchors. He also had quite marked subacromial bursitis.
121The plaintiff had an injection of the right subacromial bursa on 27 July 2021.
Medico-legal evidence
122The Medical Panel provided a Certificate of Opinion in February 2020 that the plaintiff had a 5 per cent Whole Person Impairment resulting from the accepted right shoulder and surgical scarring injury.
Mr Douglas Gardiner, orthopaedic surgeon
123Mr Gardiner examined the plaintiff in November 2020.
124Following injury, the plaintiff was treated surgically with a return to duties with another employer in the same capacity. He continued to experience mild to moderate pain and dysfunction of the right shoulder to the present date.
125On examination, there was suggestion of some muscle wasting on the top of the right shoulder. Mr Gardiner felt there was more drop off of the deltoid over the lateral aspect of the shoulder compared to the other side, although he was unable to be absolutely sure through the video interview.
126Pain was registered at the extremes at rotation, although no significant complaints were made by the plaintiff.
127Mr Gardiner diagnosed a full-thickness tear of the right rotator cuff, right subacromial bursitis, tendinosis of the right subscapularis tendon.
128The plaintiff told him that he had been driving a large bus for eleven hours a day from Monday to Friday, and that caused discomfort with prolonged driving, as the vehicle was manual, and he sometimes had to steer with his right hand. The steering wheel was very large, and he had to reach quite a fair way when his hand was at 12 o’clock on the wheel.
129With regard to leisure, the plaintiff described his disappointment at not being able to perform heavier tasks in rebuilding various car parts and assembling those in a car, with difficulties lifting various objects such as differentials and gear boxes into position.
130The plaintiff told him that activities at or above shoulder level continue to be difficult and cause pain in the depths of the right shoulder, and he avoided them. He had difficulty using his right hand to steer the bus. His sleep was disturbed when he rolled onto his right side, and he also had issues with sexual activity.
131The prognosis was that, at fifty-six, the plaintiff was unlikely to achieve normal function in the right shoulder. He appeared to be a very stoic individual, accepting his situation and not requiring any analgesia. Mr Gardiner suggested, however, that he will never achieve normal function and always experience some pain with the use of his right shoulder in the foreseeable future.
132He thought the plaintiff had a work capacity and had in fact returned to his job working eleven hours a day, five days a week, and handling luggage, albeit with some pain in the right shoulder. He had the capacity for pre-injury employment that he is still undertaking. He may engage in any other form of employment that allowed him to avoid stressing his right shoulder at or above shoulder level, or a significant distance from his body.
133Modifications in the workplace that would be necessary to help him would be driving an automatic bus, rather than having to change gears, and steer with his right upper painful extremity.
134Mr Gardiner noted that the plaintiff no longer played Masters Football, and reported great difficulty in the more rigorous work of restoring mechanical parts of vehicles and, as such, had to abandon a significant part of this activity. He had difficulty using a Whipper Snipper and lawnmower.
135Mr Gardiner did not believe any particular further treatment was likely to be efficacious, and therefore not advisable. He noted that the plaintiff did not wish to take anti-inflammatory medications and appeared to be coping under the current conditions, and Mr Gardiner did not believe that pain management was required.
136Further surgery would not be considered unless there was a major increase in capacities and pain, and only if radiological evidence demonstrated a new lesion that was correctable by surgery.
The Defendant’s medico-legal evidence
Mr Graeme Doig, orthopaedic surgeon
137Mr Doig examined the plaintiff in November 2019 for the purposes of an AMA assessment.
138At that stage, the plaintiff’s main problem was weakness overhead and failure to regain full movement.
139In terms of limitation on activities, it was noted that the plaintiff had been unable to return to playing golf, shooting at basketball, and playing Masters AFL.
140On examination, the right shoulder was non-tender, and the plaintiff had a slightly restricted active range of motion arcs. There was no neurological deficit of the upper limbs.
141Mr Doig diagnosed a rotator cuff tear of the dominant right shoulder requiring operative repair. He thought the plaintiff continued to suffer from slight restrictions. The prognosis was good, in that the plaintiff had returned to pre-injury duties. He thought the condition had reached maximum medical improvement.
Dr Anthony Menz, orthopaedic surgeon
142Dr Menz examined the plaintiff in May 2021.[42]
[42] Before the July 2021 injection
143The plaintiff told him that the surgery had helped the pain but not the lack of full range of movement. He rated his shoulder pain about five out of ten when he drove the bus. He was then working full time, driving a bus for forty hours a week.
144The plaintiff was not having any passive treatment but regularly did TheraBand exercises to increase his shoulder girdle muscle strengthening. He did not take any pain relief.
145Dr Menz noted, under the heading “Effects on Recreation Interests”, “not applicable”.
146On examination, the right shoulder showed quite a good range of movement with abduction to 120 degrees, flexion to 130 degrees, internal rotation to 30 degrees, external rotation to 90 degrees and extension to 10 degrees.
147He thought the plaintiff had a reasonably good result from the surgery and had a reasonably good function, noting he had returned to pre-injury work and hours.
148There was both ultrasound and MRI scan evidence of tearing of the supraspinatus tendon and subacromial bursitis.
149Dr Menz noted that the plaintiff was to undertake another cortisone injection – a very reasonable undertaking, as it may improve the discomfort in his shoulder. If there was no positive response to that injection, he believed that the plaintiff’s shoulder function and pain would remain the same going into the future.
150In terms of activities of daily living, he noted that the plaintiff can do the cooking and some of the cleaning but cannot hang out the clothes. He can mow the lawns, drive his car, and walk about two kilometres.
151In his conclusion, Dr Menz noted that the plaintiff had returned to full work duties and full hours driving a bus, but there were activities of daily living he cannot undertake.
Overview
152There is no dispute the plaintiff suffered a right supraspinatus tear in the transport accident in 2016. He has undergone surgery and had two injections, the most recent in late July this year.
Credit
153As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[43]
“… 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.”
[43] (supra) at paragraph [12]
154In my view, the plaintiff was a straightforward and very credible witness. He is a “country bloke” who has just got on with his life despite ongoing pain in his right dominant shoulder. He is a stoic, a view shared by Mr Gardiner. He battled on with his work since the accident, having treatment only when it became too hard to deal with his pain. He did not have the initial surgery until sixteen months after the accident and recently had an injection while on a break on his bus run.
155As Nettle JA commented in Dwyer v CalcoTimbers Pty Ltd (No 2),[44] he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[44] [2008] VSCA 260 (“Dwyer”) at paragraph [4]
Pain
156As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[45]
“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). … ”
[45](supra) at paragraph [11]
157I accept the plaintiff has a constant dull pain in his right shoulder that becomes sharper with a sudden or unexpected movement. He is restricted in a range of shoulder movements, particularly overhead, heavy or repetitive activities.
158He initially had physiotherapy and then underwent the surgery in November 2017, followed by more physiotherapy. Despite some improvement with the surgery, his right shoulder issues have continued.
159Only a month ago, he had a further cortisone injection in his right shoulder at the suggestion of his surgeon, Mr Mason. At this stage, that injection has provided limited relief. He did not have any time off work leading up to or after this procedure, and in fact had the injection in a break on his bus run from Maryborough to Ballarat that day, a situation indicative of his level of commitment to his job.
160Counsel for the defendant submitted that the plaintiff had retained a lot, working fifty-five hours a week, doing all the shopping, lawn mowing (except for the four stairs), and some of the cooking. There is some restriction in housework, but he is still doing it. When one considered what had been retained, any impairment could not be said to be “serious”.[46]
[46]T39; Per Ashley JA in Dwyer (supra) at paragraph [27]
Findings
161While there is no pecuniary loss and the plaintiff has continued to work full time and in fact now works eleven hours a day, Monday to Friday, he has problems driving the bus with his arms extended on the wheel, steering the bus, particularly in windy weather, and loading and unloading the passengers’ luggage from the luggage bin under the bus.
162He starts each day with exercises to loosen up his shoulders to prepare him for a day’s driving. He also does those exercises during the day at work. At the end of the work day, his pain, which has started at usually about two out of ten, ends up at five out of ten, and he has to rest at home with his right arm elevated.
163He takes no medication, as he is not a man who likes taking medication, not even taking it after the surgery.
164In addition to his pain and restriction of movement, particularly in terms of overhead or repetitive activities, there are a number of other consequences as a result of his right shoulder injury.
165His sleep is affected if he rolls onto his right shoulder, although he gets some benefit with his sleep in general from a CPAP machine, as he has previously suffered from sleep apnoea.
166While he is personally responsible for his self-care and management, he has issues showering, toileting and getting dressed.
167He continues to do some housework but is limited in his performance of the heavier tasks. He does all the shopping, but does so in small batches, and does not carry heavy items in his right hand.
168His intimate life with his wife has been affected because of shoulder pain, problems with movement and an increase in his weight.
169The plaintiff’s wife confirmed all the shoulder problems described by the plaintiff. She was not cross-examined.
170A significant impact of the shoulder injury has been on the plaintiff’s ability to work on cars, a hobby he previously enjoyed to a significant degree. He now requires a mechanic to do more substantial jobs. He can only tinker around and do small jobs on his car – and even then, with difficulty, as he described when recently performing what for him would previously have been a relatively simple task.
171While the plaintiff was only a social golfer, he has not been able to play since the accident. This was an activity he enjoyed, even though he was “a hacker”.[47]
[47]T21
172He has not played Masters Football since the accident. Although his involvement in the years leading up to the accident was limited because of work, he did play in the 2014 and 2015 seasons. He was on a seventy-two-week roster and he intended to play later in the 2016 season. Then he had his accident. He enjoyed training, playing and the camaraderie at the club. His brother-in-law with whom he previously played, continued to play until he was fifty-three. There was no suggestion the plaintiff could not have played to at least a similar age.
173The plaintiff’s wife is employed in the Koori community, and he is no longer able to play basketball with the Koori children. He is restricted in his ability to do kick to kick with his son, which he previously enjoyed.
174The range of consequences described by the plaintiff were confirmed on examination with Mr Gardiner and Mr Mason. Dr Menz’s report in this regard did not address these relevant issues in any detail.[48]
[48] T37
175I accept that a lot has changed in the plaintiff’s life as a result of his shoulder injury, His quality of life would be a lot better had he not been injured. All aspects of his life are affected by his injury on a daily basis.
176Taking into account all the evidence, in my view, for this stoic plaintiff, the consequences of his shoulder impairment, when judged by comparison with other cases in the range of possible impairments, can be fairly described at least “very considerable” and more than “significant” or “marked”.
177There is no suggestion in the medical evidence that there will be any improvement in the plaintiff’s shoulder condition in the foreseeable future. Therefore, I am satisfied the impairment is long term.
178Accordingly, I grant leave to bring proceedings in relation to the 2016 accident.
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