Garcia v TAC
[2025] VCC 655
•21 May 2025 (ex tempore)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-24-05067
| ENMANUEL JOSE GARCIA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 May 2025 | |
DATE OF JUDGMENT: | 21 May 2025 (ex tempore) | |
CASE MAY BE CITED AS: | Garcia v TAC | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 655 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – right shoulder – causation – consequences
Legislation Cited: Transport Accident Act1986
Cases Cited: Richards v Wylie (2000) 1 VR 79; Humphries v Poljak [1992] 2 VR 129; Stijepic v One Force Aust Pty Ltd [2009] VSCA 181
Judgment: Leave granted to commence a common law proceeding.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F. Spencer KC with Mr P. Bourke | HCA Lawyers |
| For the Defendant | Mr W.R. Middleton KC with Ms K. Manning | Lander & Rogers |
HIS HONOUR: (ex tempore)
1Enmanuel Garcia is the plaintiff in this proceeding. He was born in Venezuela in 1989.
2In an affidavit sworn by him in November 2023, he set out how he had always had an interest in cooking and that interest had commenced when living in Venezuela and studying an English language course.
3In May 2017, he came to Australia on a student visa with an intention to pursue his interests in cooking. While studying English in Australia he commenced a self-employed gardening business and did some bricklaying work with his stepfather. It is not entirely clear but it appears his mother had migrated to Australia some time before him.
4By about 2019, he had commenced some formal qualification in cookery and has gone on to subsequent qualification as a chef.
5On 20 July 2020, the plaintiff was driving his mother home in Ferntree Gully when they were struck from behind by another vehicle. It is that accident which brings this proceeding before the court. Pausing here, there was some cross-examination of him during the oral evidence about the force involved in the accident but broadly I accept it was an accident of some force consistent with some of the lay evidence and I think it is also notable that the defendant, that is the driver of the other vehicle, has not provided any direct evidence to contradict the plaintiff's version other than it was an accident of some force.
6In that context, this proceeding is a serious injury application brought pursuant to the Transport Accident Act 1986. Specifically the plaintiff relied upon a serious physical injury within the meaning of s.93 of that Act in respect to either the neck or the right shoulder. I am conscious that the plaintiff cannot aggregate injuries for the purposes of a serious injury. In closing submission, his senior counsel made an appropriate concession namely that the primary focus was on the claimed right shoulder injury and that if the right shoulder was found by the Court not to be serious then any consequences separately from the neck would not be serious.
7Therefore, whilst the claim based on a physical injury of the neck was not formally abandoned, the reality is that the question in this proceeding is whether or not the right shoulder is serious.
8I note the plaintiff had previously relied separately in a discrete psychiatric condition but that was not pursued during the hearing other than in the sense that the emotional consequences could be taken into account in the Richards v Wylie[1] sense.
[1] (2000) 1 VR 79
9The defendant, the Transport Accident Commission, denied that the plaintiff had suffered a serious injury either in respect to the neck or the right shoulder condition but focusing specifically on the right shoulder the defendant firstly raised an issue as to whether any injury had been suffered in the accident or, if you like, raised causation as an issue. And secondly, if the Court concluded that there was an ongoing accident-related shoulder injury, the defendant contended the consequences were simply not very considerable.
10Otherwise the legal principles are not really in dispute and neither party sought to take the Court to any authorities. The plaintiff must meet the well-known "very considerable" test extending back to cases such as Humphries v Poljak.[2] In a consideration of whether the plaintiff has made out a serious injury the court must of course consider the range of potential impairment and impairment consequences that come before the courts and those that do not. And of course the consideration is not a one size fits all. The consideration is whether this particular plaintiff has suffered a serious injury. In that respect, the onus is on him to identify the injury and the impairment consequences from the injury either in respect of pain and suffering, or pecuniary loss, either in isolation or in combination.
[2] [1992] 2 VR 129
11In respect to the proceeding itself, it was conducted in what might broadly be described as the usual manner. The parties tendered documents from court books and otherwise the plaintiff presented for cross-examination as to what he had said in his affidavits and to doctors. The application was conducted I think in a commendably swift and appropriate manner by both sides.
12The next issue then is the credit of the plaintiff. In this proceeding, the defendant did not directly challenge the credit of the plaintiff although appropriately senior counsel for the defendant pointed out what might be described as deficiencies or some inconsistencies in the plaintiff's affidavits.
13My impression of the plaintiff in the witness box was that he was a reliable witness. He was appropriately direct, pleasant and prepared to make concessions as appropriate. One example of that was the recent affidavit sworn about his involvement in soccer before the accident. Despite what might be described as some attempt by his senior counsel to cross examination him into a position that he was playing competitive soccer in the 12 months or so before the accident, the plaintiff stuck to his guns and said he was not which on one view is contrary to what he said in his affidavits.
14I am conscious that English is an additional language for the plaintiff. He gave evidence mostly in English but there was an interpreter who at times assisted him. In my view, any deficiencies in his affidavits are explained in part by the fact that English is an additional language for him, in part by a lack of familiarity with the legal system but on a consideration of all of the affidavits, I also think that it could be said that some of the drafting problems in the affidavits arise because of what the lawyers have done and the plaintiff should not have those deficiencies visited on him. That is a long-winded way of saying in this case I do not consider the plaintiff's credit is really an issue although there are some aspects of the evidence that need to be carefully considered as to whether they are reliable.
15As I have already mentioned, one of those issues that I think falls away was the force involved in the collision. There was, for a better phrase, a joust during cross-examination as to whether the accident occurred in a 60 or 50 kilometre an hour zone and whether the defendant vehicle to the common law proceeding was in fact travelling at 60 kilometres an hour. I do not think anything turned on that ultimately.
16Dealing briefly with the evidence in the plaintiff's first affidavit, he set out the circumstances of the accident and then said, "Over the next few days I developed worsening pain in the right side of my neck and upper back. That was constant."[3] He set out how he attended a general practitioner, then a chiropractor, had various scans before ultimately being referred to various specialists. It is perhaps based on that evidence that the causation issue arises in the sense that there was no immediate complaint of right shoulder pain.
[3] Plaintiff’s Court Book (“PCB”) 15
17The plaintiff's evidence about that is at p.27 of the transcript.[4] It was highlighted to him that he did not see the general practitioner until 27 July 2020. He said appropriately that he did not remember when he went to the doctor because the pain - it was there. It was put to him again that the medical records suggest that he did not see the GP until 27 July 2020, that GP being Dr Rizk. He eventually agreed with that. It was then put to him that he did not see a chiropractor, Dr Hasan, until 3 August and he agreed with that. It was put to him that he made no complaint to the GP or to Dr Hasan by that point about shoulder pain. He said:
"I did complain about all my right side, so the whole neck, part of my shoulder and my back. That was my complaint."[5]
[4] Transcript (“T”) 27
[5] T 27, Line (“L”) 22-24
18It was again put to him that he had not mentioned by that stage anything about the right shoulder. He said that he did tell him, and I take that to be a reference either to the GP or the chiropractor, because the next question was about an X-ray being arranged of his spine, which is probably a reference to the X-ray that the chiropractor Dr Hasan organised.
19In any event, the plaintiff went on to say that by the time he got to see Mr Brown, a physiotherapist, he had made a complaint of right shoulder pain. Overall, the plaintiff said about shoulder complaints to health practitioners that early on after the accident he thought it was just the moment and the stress, but later the pain, and his plan was to keep going.[6] Later on, he explained that his mother had a pre-existing medical condition and early on, his concern was about her. The general tenor of his evidence was that he had pain in the neck and right side of his neck into what might be described as the shoulder, and at one point he demonstrated a radiating pain from the neck across the top of the clavicle.
[6] T 29
20I will return to the issue of complaints now by briefly going to the medical evidence, for the issue of causation. The plaintiff tendered several items of radiology; I am not a radiologist, so there is a limit to the use that I can independently make of that material. However, I note that an MRI scan of 19 July 2021 was concluded in respect of the right shoulder as showing lateral downsloping acromion process causing subacromial impingement with moderate supraspinatus tendinosis.[7]
[7] PCB 52
21The treating general practitioner's evidence is contained in several items of correspondence to various specialists, but in respect to comprehensive evidence from the general practitioner, that commences with a report of 12 April 2023.[8] That sets out the history of attendance after the accident on 27 July. As the general practitioner noted, there was no history of back pain or neck pain before the accident, and in his words the plaintiff had been having neck pain and back pain since the accident but had not improved.
[8] PCB 65
22The history was that as the days passed, the plaintiff started to have pain mostly on the right side of the neck and back. There is then set out referrals and referrals for scans, but then a comment from the general practitioner - and I quote:
"I then sought a second opinion and look for possible shoulder pain causing his neck and back pain. I then referred him to Dr Thomas Treseder in May 2021."[9]
[9] PCB 65
23The general practitioner noted that Dr Treseder found the plaintiff to have significant pain and limitation in the shoulder, suggestive of bicipital tendinopathy. Next in a comprehensive report dated 25 April 2025, Dr Rizk noted the plaintiff continued to suffer chronic pain in his shoulder and neck. He then set out ongoing treatment, including the use of prescription medication, Norgesic and Tramadol, to manage flareups. He said the plaintiff's symptoms had persisted and supported a diagnosis of chronic soft tissue injury particularly affecting the right shoulder in the form of supraspinatus tendinopathy and subluxation of the upper biceps. The general practitioner's report otherwise dealt with ongoing symptoms, capacity for work, and prognosis.
24One of the referrals from Dr Rizk early on was to Dr Michael Wong, a neurosurgeon. There is some brief items of correspondence from Dr Wong including a report of 24 August 2020. He wrote back to Dr Rizk noting that he had seen the plaintiff; that shortly after the accident he began to feel neck pain, and that neck pain has intermittent radiation to the right shoulder region.
25Dr Wong referred the plaintiff to Dr Christine Wong. There is some limited evidence from Dr Christine Wong, but not much that turns on that. The treating chiropractor, Dr Hasan, provided a two whom it may concern letter that is undated but presumably was some time after the accident because it noted the plaintiff had consulted him on 3 August 2020 for thoracic pain and neck pain.[10] That evidence does not take things much further either.
[10] PCB 54
26The plaintiff eventually found himself with Dr Treseder who in a letter of 15 June 2021 wrote back to Dr Rizk.[11] He noted the active issues as right shoulder pain post-motor vehicle accident. He said at that time the plaintiff had significant pain limitation in his shoulder, and signs suggest bicipital tendinopathy. He said the plan was to investigate that with a diagnostic glenohumeral joint injection and an MRI scan, and then review him. He said that depending on that, the results of those scans rather, then surgery would be discussed.
[11] PCB 77
27There are then some items of correspondence before Dr Treseder provided a report of 26 February 2025. There is some limitation in that report for a consideration of serious injury because he has not seen the plaintiff since October 2021, but the report is useful for a consideration of what might be described as causation.
28He set out the background history as he understood it, including that the plaintiff had noticed right shoulder pain in the first week post-accident. The defendant says that is in fact an incorrect history based on the other objective evidence, and so that is some limitation to the opinion of Mr Treseder.
29In any event, he went on to set out what he described as clinical signs of bicipital tendinopathy, even though the MRI had not shown any significant abnormality of the biceps tendon.
30He thought though there was a possibility of an upper subscapularis split tear. He described the diagnostic corticosteroid injection and said it was strongly positive and suggested that intra-articular pathology, including the biceps and subscapularis, could be the cause of the pain.
31Because of that and what he described as the recalcitrant nature of symptoms, he offered the plaintiff a diagnostic arthroscopy with possible surgery by way of bicipital tendinosis.
32The diagnostic arthroscopy has not come to pass for a variety of reasons, including some difficulty the plaintiff has with funding and a lack of Medicare coverage. The plaintiff had been on the waiting list for that procedure for a period of time but was ultimately taken off the waiting list in December 2024 because he was, and I quote Dr Treseder, apparently uncontactable.
33In any event, Dr Treseder went on to say that in his opinion the plaintiff had sustained a right shoulder injury in the motor vehicle accident. He said his limited function and pain was sufficient to warrant further investigation and treatment with a diagnostic arthroscopy and possible treatment of any pathology found.
34For completeness, he said in respect to diagnosis it was a presumed diagnosis of an upper subscapularis tear and bicipital tendinopathy of the right shoulder.
35In respect to capacity for employment he said:
"A good outcome is expected with full function in a typical case."[12]
[12] PCB 83
36That is the extent of any useful evidence from treating practitioners. In this proceeding, each side placed some emphasis on the material from treating practitioners. On one hand, the defendant highlighted the lack of any contemporaneous report of right shoulder symptoms and as I have already mention what it said was the incorrect history by Dr Treseder.
37On the other hand, the plaintiff submitted that the objective evidence, in combination with his oral evidence, was such for a conclusion that there had been an initial right shoulder condition.
38Having considered the whole of the plaintiff's evidence and the objective evidence, ultimately I prefer the submissions on behalf of the plaintiff. As I said earlier on, English is an additional language for him, it seems to me that he has consistently, once he got past the initial shock of the accident and concern for his mum, complained to doctors about symptoms broadly in the right side of the neck and into the shoulder.
39True it is that he may not have explicitly diagnosed a right shoulder condition but equally I think that would be unfair to ascribe to him a level of medical knowledge or terminology that he does not have. In my view, there was a consistent complaint of what might broadly be described as right-sided symptoms which as Dr Treseder said married up with the radiology and his opinion regarding what the MRI scan showed. In other words, the contemporaneous reporting of neck and right sided symptoms, in my view, was consistent with a soft tissue injury to the shoulder and whatever uncertainty there might be about diagnosis does not necessarily mean there is not an injury.
40As I will get to shortly, I do not accept the evidence from the orthopaedic surgeon, Mr Richard Pennington upon whom the defendant relied for that submission that any pathology in the right shoulder is unrelated to the accident.
41In my view, the plaintiff has established that the accident caused a compensable injury to the right shoulder. The remaining issue is then whether that condition continues to produce impairment consequences, and if so, whether those impairment consequences are serious.
42Firstly, there has been a consistent reporting by the plaintiff of ongoing right shoulder symptoms and I accept his evidence about that. Insofar as it is documented in medico-legal material, the first in time is Mr Ash Chehata who describes himself as a shoulder, elbow and wrist surgeon. He first examined the plaintiff at the request of both sides and provided an independent medical examination report of 23 November 2022.[13]
[13] PCB 92
43He obtained a history of an accident of some force. The plaintiff began to note trouble moving his head to the right and left with pain radiating down the trapezius musculature into the lower back and right shoulder.
44Pausing there, I think that is an accurate description broadly as to the onset of symptoms. He noted how the plaintiff's pain progressively got worse over the next several weeks and that the right shoulder began to develop more and more tightness and pain, that the plaintiff had developed weakness and was unable to utilise the shoulder in any form. And again, broadly, I think that's an accurate summary of the objective evidence.
45In any event, on examination at that time, Mr Chehata found right shoulder asymmetric loss of range of movement but no muscle wasting. He said all in keeping with the bicep pulley lesion and a component of capsulitis. The language might be different, but Mr Chehata seems to be broadly describing the same condition as Dr Treseder. At that time he said the prognosis was guarded. He thought the plaintiff might benefit from hydrodilatation of the right shoulder and an exercise program.
46Mr Chehata then reported again on 1 July 2023 but this time to the plaintiff's solicitors.[14] He had a history of ongoing pain in the right shoulder although on that occasion the plaintiff was found to have a full range of right shoulder movement.
[14] PCB 101
47He opined that the plaintiff still had what he described as potential ongoing soft tissue or bursitis to the right shoulder. He noted the plaintiff by then was working full time as a chef, had restrictions with lifting and had modified activity to reduce flare-ups of right shoulder pain. On that occasion, he described the prognosis as poor. He said then he was uncertain as to whether the plaintiff would benefit from a right shoulder arthroscopy.
48He then reported again to the plaintiff's solicitors on 22 January 2025.[15] On that occasion, he noted that treatment had been essentially conservative, that the plaintiff was restricted for various recreational pursuits, had a lifting restriction of five kilos and a difficulty reaching above shoulder height for his work as a chef.
[15] PCB 106
49He said again on examination there was effectively a full range of movement but he did find muscular spasm near the trapezius musculature on the right side. I note spasm is an objective sign that is not one that can be feigned.
50He said on examination the right shoulder was mildly irritable although again with a full range of movement. In respect to the active diagnosis, he said the plaintiff had right shoulder bursitis and sinusitis. He said it was unlikely he would require operative intervention. He said there was intermittent ongoing right shoulder bursitis that has continued to remain asymptomatic.
51Pausing again, there was some discussion in submissions about his use of the word "intermittent." In my view, what he is describing there is intermittent in the sense of flare-up. The plaintiff's evidence, which I accept, is that he has had an ongoing shoulder condition but it does flare up with activity. In any event, overall, Mr Chehata said the condition was stagnant and unlikely to change with time.
52Continuing with the evidence in the order in the court book, but for present purposes skipping over the opinions from his psychiatrist, Dr Lewis, the plaintiff was seen by Dr Eman Awad, an occupational medicine physician at the request of his solicitors on 25 January this year.[16]
[16] PCB 141
53That evidence is not particularly useful in my view for the assessment of the issue of impairment and ongoing impairment consequences but he did note that the plaintiff's right shoulder was his most troublesome symptom.
54He obtained what I consider to be a fairly good history of the plaintiff's current employment at the winery Hubert, which is a large, busy commercial kitchen. He set out restrictions the plaintiff has for that work and how the plaintiff tried to avoid tasks which would aggravate his shoulder.[17] He found a full range of movement in the plaintiff's shoulder, pain and irritability on abduction with extremes of movement. That appears to be a similar clinical finding to Mr Chehata. He diagnosed a soft tissue injury to his neck, and right shoulder bursitis and synovitis, which are again similar to Mr Chehata.
[17] PCB 145
55Why I think there is some limitation in the evidence from him is firstly he does not hold specialist orthopaedic or shoulder qualifications such as Mr Chehata does, and secondly, when it comes to a description of impairment consequences, he does appear to blend the neck and the shoulder together to some extent.
56That brings me to the evidence from Mr Pennington. Mr Pennington obtained a history of the accident, the initial treatment. He then said there was some inconsistency in reports about the injections the plaintiff had, but I do not think much turns on that. He noted the plaintiff's current work at Hubert Estate as a chef. He noted the plaintiff had some assistance in trying to manage those work duties and in domestic activities from family. He noted the current treatment was to see the GP, use a TENS machine, and taking Prodeine, Norgesic or Tramadol. He found no muscle wasting. He appears to have found effectively a full range of movement and of rotator cuff strength.
57He said the plaintiff was a right-hand dominant chef who presented with right shoulder upper arm pain - in his words, allegedly secondary to a motor vehicle accident - and diagnosed mild right shoulder subacromial bursitis, but he then opined that in his belief, the mild subacromial bursitis was not caused by the reported mechanism. He said:
"I do not believe the accident caused any significant pathology or injury in either the cervical spine or the right shoulder. This is supported by radiological investigations."[18]
[18] Defendant’s Court Book (‘DCB’) 48
58He said that there was an inconsistency between symptoms, radiological findings and described functional ability. He said he would anticipate essentially normal function and no pain based on the radiological findings. The plaintiff's counsel challenged Mr Pennington's report as not disclosing a path of reasoning for why he did not believe the accident caused any significant pathology in the shoulder. It was highlighted that he did not raise as an issue in his report the reliability of the plaintiff. It was suggested effectively that one was left to ponder what explanation Mr Pennington proffered for the ongoing symptoms and the cause of the bursitis if it was not related to the accident.
59There is always a difficulty in these sorts of serious injury applications where one does not hear from the medical practitioners, and an opinion might be thought to be clear to a medical practitioner where it is not to a layperson. It is also trite to note that the defendant does not need to prove anything, and that the plaintiff bears the overall onus. True it is that some of Mr Pennington's opinion is a little opaque, but broadly what he is essentially saying as I understand it is that the radiological findings are coincidental and because of his understanding of the mechanism of accident and the development of symptoms, they are not causally related to any accident condition.
60But for the reasons already expressed - namely that I accept that the plaintiff did have symptoms in the right shoulder, the lack of any previous right shoulder symptoms, the temporal onset of symptoms combined with the opinions from the treating general practitioner, Dr Treseder and in conjunction with Mr Chehata, mean that I prefer that evidence on causation to that of Mr Pennington.
61Turning then to impairment consequences, the plaintiff was challenged in cross-examination about the fact that he continues to work full-time as a chef. Since the accident, he has gone through the gears as it were in respect firstly to his qualifications, having completed several commercial cooking and chef qualifications. He has obtained various chef positions and again has worked his way up to where he is now a sous chef at a well-known and busy winery and restaurant.
62He was cross-examined about the hours that he works, and he readily conceded that his base hours was something like 40 to 42 hours a week, but some weeks he might work 45 hours depending on how busy the restaurant was.[19] He generally works five days a week. He accepted that the ongoing treatment is conservative; he accepted that there had been no explicit medical evidence given to him, that he should cease recreational activities such as camping, soccer and bike-riding. He accepted his ongoing employment was stable. But equally, in my view, he gave credible evidence and for want of a better phrase stuck to his guns that he has an ongoing shoulder problem, particularly when working in the kitchen. That evidence is set out in his affidavits. I accept it, and there is no need to repeat it.
[19] T 41
63I mentioned earlier some of the lay evidence. He has provided lay evidence from family members and his partner, or perhaps ex-partner. Some of that evidence highlights the lack of care in drafting in that it goes well beyond direct evidence and ventures into opinion evidence, but as his senior counsel pointed out, the evidence from Georgina Crittenden - who was a former workmate of the plaintiff's - does not suffer that vice.
64Her evidence is that she was aware of the plaintiff having a problem with his shoulder in the course of his employment as a chef de partie at Innocent Bystander Winery. She said that the plaintiff's work performance was pretty good, and his injuries were not as well-known by other staff, but she said when his shoulder was playing up his work was affected quite a lot, both physically and mentally.[20] She could see that he got frustrated and could not do his role without assistance. She says:
"I observed that he flinched in pain or dropped things when trying to reach up high."[21]
[20] PCB 30
[21] PCB 30
65She set out some of the difficulties that he had for work as a chef. She said - perhaps somewhat indelicately:
"I treated him as though he is one of the short people in the kitchen that needed help with things up high."[22]
[22] PCB 30
66She said:
"I was very aware of Enmanuel's restrictions and I kept an eye on him, and helped when he needed assistance."[23]
[23] PCB 30
67She then described what her understanding was as to how that would affect his ongoing employment as a chef.
68I accept her evidence, that is objective evidence from someone who does not have any direct interest in this proceeding, that she had observed a colleague - namely the plaintiff - having objective restrictions in his work as a chef. True it is that he has in fact gone on to obtain a promotion in the sense that he is now a sous chef and not a chef de partie, but that does not mean that he does not have difficulty with his shoulder.
69Coming back to where I commenced and the fact that the plaintiff is on a visa, having come to Australia from Venezuela, there is evidence from his current employer that he is on a skilled migrant visa. I accept his evidence that because of his visa, he needs to work; therefore, he continues - I think to his credit - to work as a chef, notwithstanding pain and restrictions from his right shoulder. As has been frequently noted in these sorts of proceedings, relying on what was said by Nettle JA, as he then was, it would be wrongheaded if a stoic person was treated less differently than someone who was more readily prepared to give into their pain. It seems to me the word "stoic" is often thrown around in these sorts of applications when it should not be but on this occasion I think it apposite to describe the plaintiff as stoic. His stoicism is perhaps forced on him to some extent because of his visa.
70I accept that he continues to work notwithstanding the symptoms in his shoulder. As has been noted, he is still a young man and the fact of his young age is a relevant consideration. True it is there's no suggestion his employment is in jeopardy or he will imminently give it up but that cuts both ways. On the one hand it might suggest the injury is not serious, but on the other hand it might suggest that it is serious because he is stuck in a vocation that is causing him pain.
71Next, I accept that the plaintiff really has no other treatment options available to him. Surgery, at one stage, was an option but for a variety of reasons has not occurred. Both Mr Chehata and Mr Pennington have effectively ruled out the option of surgery so whether or not it was on the table at an earlier stage is largely immaterial.
72To return to Dr Treseder, true it is that he said he would anticipate a good outcome from the typical injury but of course not every condition is typical and unfortunately for the plaintiff, on my assessment, some four years after he was effectively last seen by Mr Treseder, this injury has turned out not to follow the typical course. It has been productive of ongoing symptoms which are essentially activity related.
73The defendant appropriately challenged the plaintiff about some of his evidence such as his evidence about soccer. Not much turns on that at the end of the day but for what it's worth the plaintiff said he'd given away competitive soccer before the accident, that appears to in part have been because of COVID but also he, by that stage, had become busy with study and working in kitchens.
74The plaintiff gave some evidence in re-examination that he might have continued to work as a gardener or run some form of secondary coffee business in addition to work as a chef if he was not injured. I am not sure I place much emphasis on that evidence and I am not sure that much turns on it.
75I accept the plaintiff is working long hours as a chef, and as I said before, that might be thought to work against him for a conclusion of serious injury but it is clear that he is working with difficulty and restrictions. It is unclear to me what his visa situation is and whether he will require further skilled migrant visas or at some point whether he planned to transition to seek full citizenship.
76It may be that at some point in time in the future, his symptoms get the better of him or restrict the sort of work he can do as a chef. I do not accept he has suffered any actual pecuniary loss to date but the fact that there are restrictions on him in his current work in that it causes pain and symptoms and that those restrictions may impact him later in life are, in my submission, relevant pain and suffering considerations.
77The plaintiff has intermittent attendances on his general practitioner. Not much turns on that because this is one of those cases where no-one really suggests there is much that otherwise can be done for the shoulder but I accept that he requires strong painkilling medication, firstly, to get through his work, and secondly, to recuperate on his days off.
78Again to the paraphrase the often cited quote of Dodds-Streeton JA:
"The ordinary reaction to the use of such strong painkilling medication would be that it is an indice towards serious injury."
79The plaintiff has some ongoing interference with domestic activity. That might extend to some interference with pleasurable hobbies such as camping, soccer and bike riding, but I do not consider that his symptoms or restrictions are at a level where those hobbies have been completely destroyed, and I also think the fact he got busier with study and work is a relevant consideration to how he would have exercised his interest in those sorts of activities.
80At the end of the day, this case has some of the hallmark, albeit for a work injury, of Stijepic v One Force[24] which, in that case, the Court of Appeal described as borderline. It seems this case could probably also be described as borderline. But equally there is no template for serious injury and no one size fits all.
[24] [2009] VSCA 181
81Having considered the whole of the evidence and the range of impairments and impairment consequences, and not just those that come before the courts, in my view, what tips this over the line for a conclusion of a very considerable consequence is the plaintiff's young age, the fact that his intention to remain in Australia is dependent on a working visa, the fact he has exercised that intention by pursuing his interest in cooking but with ongoing restrictions. He has had a sympathetic workmate and has required assistance. When he requires strong painkilling medication to get through that work and, on my assessment, there must be some doubt about whether he can maintain that feasibly for the rest of his working life. Together with some limitation for domestic and pleasurable activities, "in combination", on this occasion means a very considerable consequence has been made out.
82I reached that conclusion without placing a great deal of emphasis on the Richards v Wylie type point but I do note the treating general practitioner said one of the consequences had been on the plaintiff's mood and so that is, to some limited extent, capable of being added to the mix as it were.
83In summary, for the reasons expressed, I conclude the plaintiff has established that he has a very considerable impairment consequence to the right shoulder and leave should be granted to him to commence a common law proceeding for damages in respect to the motor vehicle accident of 20 July 2020.
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