Gennings v Transport Accident Commission
[2016] VCC 1065
•28 July 2016
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-12-04403
| SHARRON LEIGH GENNINGS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 29 and 30 June and 1 July 2016 | |
DATE OF JUDGMENT: | 28 July 2016 | |
CASE MAY BE CITED AS: | Gennings v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1065 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the right shoulder – pain and suffering only – range case
Legislation Cited: Transport Accident Act 1986, s93(17)(a)
Cases Cited:Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129
Judgment: Leave granted to the plaintiff to bring proceedings to recover pain and suffering damages for injuries suffered in the transport accident on 10 March 2011.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr G Wicks | Slater & Gordon |
| For the Defendant | Mr P Jens QC with Ms M Tait | Hall & Wilcox |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 10 March 2011 (“the transport accident”).
2 Section 93(c) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraph (a) of the definition of “serious injury” to be found in s93(17) of the Act. There –
“serious injury means—
(a) serious long-term impairment or loss of a body function … .”
4 The loss of body function relied upon in this application is the right shoulder.
5 The plaintiff seeks leave to issue proceedings at common law.
6 The plaintiff relied upon four affidavits sworn on 2 August 2012, 17 May 2013, 29 March 2016 and 23 June 2016. In addition, the plaintiff relied upon an affidavit of Mr Paul Gennings, her husband, sworn on 16 May 2013.
7 The plaintiff and her husband were cross-examined. I have not summarised the affidavits and evidence of the plaintiff and her husband, however, I will refer to the relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all of the tendered material.
The issues
8 Counsel for the defendant informed the Court that there were two issues. First, that the plaintiff’s employment as an emergency nurse at Bairnsdale Hospital did not cease as a result of her transport accident injury but rather for other reasons. Secondly, that this is a “range case”, that is, the consequences the plaintiff suffered as a result of the transport accident do not meet the “very considerable” test.
9 In closing submissions, a number of additional issues were raised by counsel, which were described as “peculiar factors”[1] of the plaintiff’s case:
[1]Transcript (“T”) 137, Line (“L”) 6
(i)This application was issued within eighteen months of the transport accident which was unusual;
(ii) The plaintiff relied upon a Taxation Summary which disclosed an increase in the plaintiff’s earnings from the date of the transport accident;
(iii) The plaintiff undertook further studies following the transport accident in order to retrain herself; and
(iv) The plaintiff’s reasons for resignation from Bairnsdale Hospital.
Credit of the Plaintiff
10 Counsel for the defendant described the plaintiff as credible and well-motivated. The plaintiff’s credit was not in issue other than in respect to two minor matters, which I will address in turn.
(i) Resignation from Bairnsdale Hospital
11 First, counsel for the defendant raised concerns as to whether the plaintiff resigned from her position in the Emergency Department at the Bairnsdale Hospital in August 2015 due to her transport accident injuries as stated by the plaintiff or for other reasons, namely, to be with family in Queensland or because of a conflict with her nurse unit manager at Bairnsdale Hospital.
12 The objective evidence is as follows.
13 On 31 July 2015, the plaintiff notified her nurse unit manager at the Bairnsdale Hospital of her intention to resign.
14 On 5 August 2015, the plaintiff wrote to the Sale Hospital seeking a position on the casual Nurse Bank.
15 On 18 August 2015, the plaintiff completed an Application for Employment at the Central Gippsland Health Service where she referred to her written application to the Sale Hospital. In the application, the plaintiff did not disclose her pre-existing or current injuries which could be affected by the nature and duties of the position for which she was applying.
16 On the same day, the plaintiff was interviewed by Ms Kelli Mitcheuer of Central Gippsland Health Service, who completed a Nurse Bank Interview Questionnaire, and answered the following:
“Q2:What has motivated you to apply for a position on Nurse Bank at CGHS?
A: Would like casual work. Family live in Queensland. Mother deteriorating, wants the casual work to be able to travel and work.”
17 The plaintiff travelled to visit family in Queensland from 12 September 2015 to 25 October 2015 and from 5 December 2015 to 11 January 2016. The plaintiff obtained some casual part-time work as a nurse while in Queensland.
18 The plaintiff’s evidence was that she ceased employment at Bairnsdale Hospital because she had been barely coping with the physical demands of her work duties for some time, that is, chronic and unpredictable pain and the restricted use and movement of her right shoulder and arm.
19 The plaintiff was also struggling to cope with the shifts allocated to her via the shift rosters. She worked seven shifts per fortnight, each of 8 hours, which equated to three shifts one week and four shifts the next week. Often the shifts were clustered, which meant she was working for the Emergency Department for long periods without sufficient time between shifts to rest her right shoulder and arm.
20 The plaintiff’s evidence was that, since August 2015, she worked as a Registered Nurse doing casual shift work. The work was lighter and less physically demanding than ward nursing and the Emergency Department. She said that it provided her with flexibility with the shifts she could accept to accommodate her shoulder injury. Nonetheless, she found that type of nursing to be too difficult and her pain levels worsened.
21 In May 2016, she obtained employment as a nurse at a general medical practice in Bairnsdale, which was not physically demanding work. The work is limited, in that she cleans wounds, applies dressings and administers injections. She works 8-hour shifts for three days a week. There are no further hours available. The plaintiff’s evidence is that it is far less enjoyable and challenging to the work she once enjoyed in the Emergency Department.
22 In cross-examination, the plaintiff told the Court that she resigned from her employment due to her right shoulder pain. However, she agreed with counsel that a month after she resigned she was working in Queensland.[2] She acknowledged that her resignation was also motivated by wanting to spend some time with, and care for, her ill mother in Queensland.
[2]T48 L3-6, L21-24
23 Counsel for the defendant asked:
Q:“And it was impossible, I suggest, for you to maintain your employment at the Bairnsdale Hospital, thus going to spend some significant value time with your mother?---
A:Well, I could have brought my mother down to assess her at my house if that were the case. So it was more that I still needed to earn an income, and I thought that maybe if I had control over the amount of hours that I worked that I would get enough rest time in between shifts.
Q: I am sorry, I just missed that last bit?---
A:It was so that I had a little bit of control over when I worked so I didn’t have to work every day, which I didn’t most of the time, and I gave myself enough rest time in between.”[3]
[3]T48, L30 – T49, L10
24 Further, the plaintiff agreed with counsel for the defendant that she had issues with the nurse unit manager at Bairnsdale Hospital, which was described in Court as a “personality clash”.[4]
[4]T140, L11
25 In cross-examination, counsel said:
Q:“And that set up a situation that really – it was really untenable for the two of you to work together after that, is it not?---
A:Well, there was no – I had – I made the decision to resign and there was no tenability, to put it that way.
Q: Yes. I follow, yes?---
A: There was no coming – I was not coming back.”[5]
[5]T56, L30 – T55, L5
26 The plaintiff agreed that her resignation due to her injuries came at the same time as the personality clash with the nurse unit manager, where she said:
“They did come at the same time. I – when I handed in my application I wasn’t going to say anything to her about what my issues were with her and I wasn’t going to tell them that I was leaving because of my arm and the point in that is the same reason, that I would never get another nursing job at all. So I just took that opportunity because she pushed me into saying: ‘Why are you leaving?’ and she wouldn’t take it as I said I’d just had enough and she wouldn’t accept that, so”.[6]
[6]T77, L31 – T78 L9
27 Counsel queried the reason for the plaintiff not telling her nurse unit manager about her injury, where he said:
Q:“You say that she wouldn’t accept that you’d just had enough, well why not tell her that ‘I’m injured’ – if she won’t accept, well ‘I don’t accept that you’ve just had enough’?---
A:Because she would use that against me in the future. So if anybody rang up and asked – said that I’ve got like for instance, where I’m working now, if they had’ve rung and she said: ‘She has an arm injury’ – ‘She has left because she’d injured her shoulder’ I wouldn’t have a job.”[7]
[7]T78, L13 – L21
28 Counsel for the defendant submitted that the plaintiff omitted to address this important aspect in her affidavits, namely the issue with her superior.[8]
[8]T148
29 In cross-examination, Mr Gennings told the Court that the plaintiff was struggling with her work because of the cluster of shifts, which was really tiring for her shoulder. He was also aware that the plaintiff had a personality conflict with her superior and that she felt unsupported in her work at the Bairnsdale Hospital.[9] He agreed that the plaintiff had reached a situation where she was fed up with the approach taken by the nurse unit manager and that she could not work under her superior anymore, so she applied elsewhere.[10] However, he also acknowledged that there were other issues concerning the plaintiff at Bairnsdale Hospital, namely, that she was not properly supported by her employer, in that she had obtained her certificate in emergency nursing and was not given the opportunity to make use of her new qualifications.
[9]T116, L10
[10]T118, L17
30 Significantly, in re-examination, Mr Gennings said that the plaintiff resigned and applied for nursing through the Casual Bank so that if she had a really bad shift,[11] that is, her shoulder was really sore, she did not have to accept the next shift that was offered.
[11]T126
31 In closing submissions, counsel for the defendant submitted that, based on the evidence of the plaintiff and Mr Gennings, the primary reason the plaintiff resigned from the Emergency Department at Bairnsdale Hospital was due to the clash with her nurse unit manager, Trish, and not due to her right shoulder injury.[12] Counsel for the defendant relied upon the fact the plaintiff failed to acknowledge that she had a pre-existing or current injury that would restrict her in performing her duties in the application form to Sale Hospital and also that her motivation was to seek casual work.[13]
[12]T148, L1-3
[13]T65, T144
32 In closing submissions, counsel for the plaintiff submitted that the notion of the plaintiff giving up work because she had a conflict with Trish or was concerned about her mother was inconsistent with everything she had done since the accident.[14] Conversely, counsel said everything points to her giving up that work because she realised that physically she is no longer able to do it.[15]
[14]T167, L29-31
[15]T168, L18-20
33 I accept that the evidence was that the plaintiff reported to Mr O’Brien and a number of the doctors whom she saw that she was struggling with her work at the Bairnsdale Hospital. The plaintiff referred to this in her affidavits.
34 The fact is that a number of the medical witnesses accepted that she would have difficulty with the Emergency Department work, including Mr O’Brien and Mr Dooley. In April 2015, she reported to Mr Dooley “that she finds the physical aspects of her work difficult”.[16] Mr Dooley said that she will continue to note intermittent right shoulder and girdle pain. She will have difficulty carrying out a lot of activity at and above shoulder level. He expected that in her job she would note difficulty with any heavy lifting and manoeuvring and with a lot of activity at and above shoulder level.[17]
[16]Defendant’s Court Book (“DCB”) 40
[17]DCB 42
35 Mr O’Brien said:
“The patient as reported does describe some ongoing disability associated with limited function of the right dominant arm. In fact the patient reported that she has now changed her area of employment continuing to work as a Division 1 nurse but now on an occasional basis, which allows her to be in control of the hours she does work per week. This the patient stated allows her to control any aggravation of the shoulder pain by limiting employment when necessary. Thus it would now appear likely this patient will continue on a part-time basis. … .”[18]
[18]Plaintiff’s Court Book (“PCB”) 112
36 I accept that there were other issues the plaintiff was faced with, namely, an issue with her superior and her mother’s health. I accept that these were ancillary issues and if the plaintiff resigned because of the conflict with her superior, I would have expected that she would have sought Emergency work at the Sale Hospital rather than Casual Nurse Bank work. In relation to the issue with her mother, the plaintiff said if she was working at Bairnsdale, she could have brought her mother to her house to care for her. It follows that I accept the plaintiff’s explanation for applying to work with the Casual Nurse Bank as it has a ring of truth about it.
37 Based on all the evidence, I accept that the plaintiff resigned from Bairnsdale Hospital due to her injuries from the transport accident. Accordingly, I reject that the circumstances surrounding the plaintiff’s resignation puts her credit in issue.
(ii) Application issued within eighteen months
38 Second, counsel for the defendant submitted that it was unusual that the proceeding had been issued within eighteen months of the transport accident. Further, from a subconscious basis, counsel submitted that there was a good basis for the plaintiff to maintain the fact that she had symptoms that would amount to a serious injury.
39 As to that submission, the law is that I have to make the assessment as to whether the plaintiff has a serious injury at the time of the hearing of the application based on all the evidence, including the medical evidence and the evidence of the plaintiff. I agree with counsel for the plaintiff’s submission that if the plaintiff was motivated to conduct her life according to what is best for litigation, as contended by the defendant, she would certainly not have returned to work eight months after the accident, maintained her work and obtained further qualifications.[19] Accordingly, I do not consider there was any evidence to support the defendant’s submission.
[19]T168, L1-9
40 In Court, I observed the plaintiff as an articulate witness and good historian. The plaintiff answered all questions put to her in a direct and frank manner and made appropriate concessions. In large part, the plaintiff’s evidence was supported by the evidence of her husband. Whilst I appreciate that the plaintiff did not disclose her right shoulder injury in the application for employment with Central Gippsland Health Service, I accept her reason for not doing so, and take the view that this omission does not destroy all of her evidence.
41 Overall, the plaintiff impressed me as a reliable and credible witness. I am supported in my opinion by Mr Dooley, who described her as a “sensible and genuine historian”. He did not believe that there was any deliberate exaggeration of symptoms.[20] However, in his report of 2016, he qualified his opinion and said that to a degree the constancy and intensity of her ongoing pain is greater than he would expect to see for her organic condition alone.
[20]Mr Dooley DCB 41 – his report of April 2015
42 The plaintiff’s husband, Mr Gennings, was cross-examined. He struggled with answering some of the questions. I did not find this was a deliberate attempt to evade giving evidence but rather an unfamiliarity with the court process. On other questions, he was able to give direct answers. For example the plaintiff’s limitations in gardening and recreational activities of camping and kayaking. I formed the view that Mr Gennings was doing his best to assist the Court.
43 For the above reasons, I accept the plaintiff’s evidence.
Analysis of the evidence
44 It was not in dispute between the parties that the plaintiff suffered an injury to her right shoulder as a result of the transport accident on 10 March 2011. It was accepted that the plaintiff suffered a fracture of the mid shaft of the right clavicle. The fracture was managed conservatively. She underwent an open reduction and internal fixation surgery. She developed a frozen shoulder. She underwent two hydrodilatation procedures. She complained of ongoing right shoulder and right upper limb pain. She was referred to a neurologist and underwent investigations. She underwent MRI scanning of both shoulders.
45 In February 2016, Mr Proper, orthopaedic surgeon, said the plaintiff had sustained trauma in and around the brachial plexus. There was associated post-traumatic stiffness in the right shoulder. He accepted that there was some ongoing stiffness and impingement in the right shoulder. He thought the plaintiff had a low pain threshold, which clouded the ability to make a single diagnosis. He said the plaintiff’s prognosis was poor. He recommended she continue with her exercise regime, which he thought would improve her current condition to tolerate the physical nature of her work.
46 In February 2016, Mr John O’Brien,[21] orthopaedic surgeon, examined the plaintiff. He could find no evidence of any neurological deficit in the upper limbs which was consistent with the findings of Dr Tay, neurologist. He said that the physical signs had remained fairly much unchanged since his earlier examination in 2013. He diagnosed residual symptoms of chronic pain association with the right clavicle.
[21]Mr O’Brien also examined the plaintiff in April 2013
47 In June 2016, Mr Dooley,[22] orthopaedic surgeon, opined that the plaintiff’s ongoing symptoms can be explained on the basis of her initial injury, significant pain, the requirement for subsequent surgery and stiffness of the shoulder resulting from this. He said the plaintiff will continue to note intermittent right shoulder girdle pain and that she will have difficulty in carrying out activity at or above shoulder level. She will note some intermittent nocturnal pain.
[22]Mr Dooley also examined the plaintiff in April 2015
48 Based on the current medical evidence, I accept the plaintiff, as a result of the transport accident, has a right shoulder injury with generalised restriction of range of movement which continues to be painful. Both Mr O’Brien and Mr Dooley accepted that she will continue to suffer pain, have difficulty with physical activity and difficulty with activity at, and above, shoulder level.
49 It is necessary for me to consider the evidence as to the consequences to the plaintiff of the transport accident and whether those consequences amount to a “serious injury” pursuant to the Act.
Pain
50 The plaintiff’s evidence is that she suffers constant pain from the right side of her neck across the collarbone and into the right shoulder. She said that from her shoulder joint, the pain travels down her right upper arm into the scapula. It is always present. The pain is made worse by use of her right arm, particularly any rotational movement of the arm, or raising it up, or pushing and pulling with her right arm. The plaintiff said that, as a result of her right arm injury, she continues to be restricted in numerous everyday activities, such as doing up her bra, washing her hair or reaching behind herself, such as when she attempts to retrieve something from the back seat of the car.
51 The plaintiff reported to Mr O’Brien her level of pain. In February 2016, Mr O’Brien noted that she described significant pain associated with the right shoulder and shoulder girdle. In fact, he said there was little change in the relationship to the nature, distribution and severity of the pain since his earlier examination in April 2013. The plaintiff reported to him that with the use of the right arm, the pain over the superior aspect and around the right shoulder can increase in severity to 8 out of 10 on the Visual Analogue Scale. She reported the pain is aggravated by any rotation movement of the arm, elevation of the arm, or pushing or pulling with the right arm. She said lying on her right side aggravates the pain. Generally, the severity of the pain of the superior aspect of the scapula is about 5 out of 10. The pain that extends along the right clavicle is about 4 out of 10 on the Visual Analogue Scale.
52 Mr O’Brien described the plaintiff’s pain as “significant”. Mr O’Brien concluded that the plaintiff had residual symptoms of chronic pain associated with the right clavicle and right shoulder pathology, which is consistent with the stated cause. He said her symptoms would persist. He noted that she controlled her pain with the use of medication and recently had undergone physiotherapy, which had controlled an exacerbation of pain.
53 In June 2016, the plaintiff reported ongoing right shoulder girdle pain to Mr Dooley. He said that from an orthopaedic view, he would expect her to note ongoing intermittent right shoulder girdle pain and he would expect her to have difficulty with a lot of physical activity and activity at and above shoulder level.
54 In February 2016, Mr Proper noted that the plaintiff had ongoing stiffness and impingement in the right shoulder and he thought the fact that it had persisted was possibly due to an underlying inflammatory condition. He suggested she might have a low pain threshold.
55 The plaintiff has reported ongoing shoulder pain since the accident five years ago. I accept the plaintiff has constant ongoing shoulder pain. She was consistent in reporting the level of pain she suffers to the medical witnesses. No medical witness suggested that it would reduce in severity. In fact the current evidence of Mr O’Brien and Mr Dooley is that it will persist.
56 I accept that the experience of pain for the plaintiff and one that she has experienced over a period of five years is a substantial consequence. It is therefore a consequence that I can take into account.
Treatment
57 The plaintiff’s evidence is that she continues to take 50 milligram of Voltaren twice a day, together with six Panadol per day, two tablets of Mersyndol at night, and Lyrica. Recently, she attended a physiotherapist to deal with a flare-up of pain. She had a shoulder injection in March 2016, which helped with the pain for a while. She underwent a recent course of physiotherapy, which controlled what she described as an exacerbation of pain. She attends her local general practitioner on an “as needs basis”. The plaintiff was consistent in reporting to medical witnesses a list of medications she takes. All doctors accepted the plaintiff would suffer pain and discomfort. All medical witnesses accepted that the treatment should be conservative. No doctor suggested her treatment was inappropriate.
58 The level of medication the plaintiff takes is a consequence I can take into account as opined by Dodds-Streeton JA in Kelso v Tatiara Meat Co Pty Ltd,[23] where her Honour said:
“… The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[23](2007) 17 VR 592 at paragraph [199]
59 This proposition was endorsed by Tate JA in Sutton v Laminex Group Pty Ltd.[24]
[24](2011) 31 VR 100 at paragraph [91]
60 I accept the level of treatment the plaintiff has is appropriate and is in the middle of the range. This is a consequence I can take into account.
Work
61 The plaintiff’s evidence is that she attended school until Year 9 and subsequently, worked in childcare, as a supervisor in a boarding school, a nurse’s aide and a receptionist. She commenced nursing training at forty years of age and has been a Division 1 Nurse since 2006. She commenced employment at the Bairnsdale Hospital in October 2009, working full time. Before the accident, she relocated to Accident and Emergency work in August 2011, working eight shifts per fortnight, 8 hours per shift.
62 After the transport accident, the plaintiff continued to experience ongoing difficulties with her work and required assistance from co-workers in completing tasks involving lifting, carrying or manoeuvring items which are moderate or heavy in weight.
63 Two years following the transport accident, she undertook a post-graduate course for Accident and Emergency Nursing online through the University of Tasmania. She undertook the study to continue in employment as an Emergency Nurse and to avoid her returning to general nursing, which required her to perform physical tasks such as lifting, handling and helping patients with toileting, showering, dressing and feeding.
64 Counsel for the defendant submitted that her further studies would require her to use her arms and hands when using a computer, which was in contrast to many plaintiffs he had encountered who were not able to re-train given their transport accident injuries. I should take this into account. As to this submission, there was nothing in this point other than it showed the plaintiff’s commitment to continue in the workforce and the importance of her employment as an Emergency Nurse.
65 The plaintiff’s evidence is that she resigned her employment in the Emergency Department because she was finding the physical aspects of her work difficult due to loss of function and ongoing pain in her right shoulder and arm. In addition, she was struggling to cope with the shifts allocated to her under the shift rosters. She worked permanent part-time on a fortnightly shift roster of seven shifts per fortnight, each of 8 hours, three shifts in one week and four shifts in the next week, but on occasions it could be six shifts one week followed by one shift in the second week. In cross-examination, the plaintiff told the Court that often the shifts were clustered, which meant she was rostered in shifts close in time. This meant she was working in the Emergency Department for long periods of time over three to four days each week without adequate rest periods between shifts. As a result, she suffered severe pain in her right shoulder, which put pressure on her capacity to perform her duties.
66 Counsel for the defendant submitted that this meant, on occasions, she had five consecutive days off work, enabling her to undertake her studies and extra-curricular activities. Counsel submitted that she was therefore able to get on with work in an adequate manner. I reject that submission, because the plaintiff’s evidence was that she needed to have rest periods between shifts to cope with the shoulder pain.
67 After resigning from Bairnsdale Hospital, the plaintiff obtained casual shift work. The plaintiff’s evidence is that, in mid-September 2015, she returned to Brisbane to visit family and her mother, who was in poor health. She lived in Brisbane for two extended periods from 12 September 2015 until 25 October 2015 and from 5 December 2015 until 11 January 2016. During these periods she obtained casual shift work as a nurse, working 7-hour shifts per fortnight. She struggled to complete the physical tasks involved in general nursing because of the pain, restricted movement and weakness in her right shoulder and arm.
68 Since late October 2015, she worked with Central Gippsland Health Service in Sale and Maddocks Gardens Nursing Home in Bairnsdale. As a casual nurse, she told the Court that she thought she would have greater control over the shifts she worked and work in areas that are less demanding. Further, she is no longer working in clusters of shifts over a fortnightly period, as she was working at the Bairnsdale Hospital.
69 In mid-March 2016, she accepted a casual afternoon shift at Maffra Hospital. She understood she would be working a shift in the nursing home. She was required to work in sub-acute care, which was ward work. She struggled with the work and notified the Hospital that she could no longer perform that work. She continued to work as a casual nurse at Gippsland Health Service but despite the flexibility, she found that type of nursing too difficult and her pain levels increased.
70 Currently, she is working as a practice nurse in a general medical practice in Bairnsdale. She works three days per week, eight hours per day. She is involved in dressings, giving injections and is able to cope with her duties. She is paid $38.80 gross per hour, or $931.20 per week. The work is light, not physically demanding, and she is able to cope with the limited hours. However, the work is not as enjoyable, nor as challenging, as the work she performed in the Emergency Department.
71 The plaintiff relied upon a Taxation Summary for the period 2006 to 2015. Counsel for the defendant submitted that, at the time of the accident in 2011, the plaintiff was earning $54,000 per annum and was able to increase her earnings to $85,000 in 2015. As to that submission, the plaintiff’s argument was that she was employed as an emergency nurse in the financial year 2015. She can no longer perform that work because of her right shoulder injury and is now currently suffering a reduction in income.
72 The plaintiff reported to the medical witnesses the difficulties she was encountering with her work. Mr Dooley accepted that she would have difficulty with a lot of physical activity and with activity at and above shoulder level. Mr O’Brien accepted that she would work part time.
73 Based on the evidence of the plaintiff and Mr Dooley, I accept that the plaintiff cannot return to working in the Emergency Department or general nursing. The medical evidence is that she can perform her current work as a general practice nurse. I accept that she suffers a substantial loss of earnings as a result of performing that work.
74 Counsel for the defendant submitted that if the plaintiff increased her hours of work, her financial loss would not be as a great. The plaintiff’s evidence is that all of the nurses employed in the practice work part time and there are no further hours available to her. Accordingly, I accept that the plaintiff has lost the capacity to undertake the emergency work that she enjoyed. I accept that the emergency work is more stimulating than the work that she is now performing. In addition, I accept that, as a result of the transport accident, she is now performing work as a practice nurse and receives substantially less in salary. I accept that these are consequences which I can take into account and which are in the mid to high range.
Domestic life
75 The plaintiff’s evidence was that prior to the accident, life was “pretty good”. She enjoyed her work. Since the transport accident, her day-to-day activities and family life, including her relationship with her husband, has been significantly disrupted. This was confirmed by the evidence of the plaintiff’s husband.
76 The plaintiff reported to Mr O’Brien and Mr Dooley that on her non-working days, she does light housework, such as the dusting and washing up. The plaintiff’s husband carries out the heavier household chores. Mr O’Brien noted that her husband does most of the heavy physical domestic chores such as making the bed, vacuuming and washing the floors, and does a lot of the cooking. This was confirmed by Mr Gennings in cross-examination.[25] Mr Gennings told the Court that he does the cooking because he enjoys it but the plaintiff also does some of the cooking.[26]
[25]T124, L25
[26]T124, L29-31
77 I accept, as a result of the right shoulder injury suffered in the transport accident, the plaintiff’s domestic life has been restricted. I accept that this is a consequence I can take into account. I accept this is a consequence in the middle of the range.
Gardening
78 The plaintiff’s evidence is that prior to the transport accident, she was a keen gardener. At her previous home in Paynesville, she and her husband established an extensive flower and large vegetable garden. Since the transport accident, the plaintiff and her husband purchased a property and began work establishing gardens from scratch. This involved planting native trees, shrubs, ground covers, fruit trees and a vegetable patch. She is no longer able to perform many of the physical tasks in the garden that she previously performed. For example digging, shovelling, cutting, pruning and trimming are tasks which are now very difficult to complete because of the restricted movement and pain in her right shoulder and arm.
79 In cross-examination, the plaintiff gave evidence that her gardening is now limited to selecting plants for the garden, telling her husband where to plant and watering the garden. She told the Court about this loss of enjoyment of gardening, which was confirmed by her husband’s evidence. Mr Gennings said that as a result of the plaintiff’s limitations, they have been unable to establish the gardens at the front and back of the house as originally intended. He said that after the accident, the plaintiff did not garden again except to water it.[27]
[27]T112, L30, T118, L22
80 Given the evidence of the plaintiff is supported by her husband, I accept that this is a consequence which I can take into account. I accept the consequence is in the middle to high end of the range.
Sleep
81 The plaintiff reported disturbed sleep to the medical witnesses. Mr O’Brien noted that the plaintiff reported lying on her right side aggravates the pain and this disturbs her sleep. Mr Dooley said she will note some intermittent nocturnal pain. I accept that the plaintiff’s sleep is disturbed by pain. I accept this is a consequence I can take into account. There is no evidence that she has resorted to medication for sleep. In those circumstances, I accept this is a consequence at the low end of the range.
Camping and outdoor activities
82 The plaintiff’s evidence was that prior to the transport accident, she was a fit and active person. Prior to moving to Gippsland in 2009, she and her husband travelled down the east coast of Australia and around Tasmania to remote places using a camper trailer. They rode bikes on bush tracks and beaches and went kayaking in rivers, lakes and open waters. They would camp outdoors four to five days at a time, in remote places, and often in cold conditions.
83 The plaintiff’s evidence is that since the transport accident, she has been unable to participate in these activities. The plaintiff and her husband have sold the camper trailer because assembling the camper trailer is a two-person job. The plaintiff explained in cross-examination that it requires one person to be inside to pull the tent pegs or poles out and another person to lift the tent at the same time.[28] She could no longer assist her husband in assembling the camper trailer. In cross-examination, Mr Gennings reiterated the plaintiff’s comments regarding assembling the camper trailer and said that it was a disaster trying to put the camper together on a trip to Mallacoota after the accident. He said that previously it was not difficult as the plaintiff could hold things and help him to put it together.[29]
[28]T37
[29]T125
84 In cross-examination, counsel for the defendant suggested to Mr Gennings that they could continue camping in a caravan. In re-examination, Mr Gennings explained that a caravan was not the same as a camper trailer as only the latter enabled them to set up camp in remote places, which is what they enjoyed.[30]
[30]T125
85 The plaintiff said she was unable to go bike riding due to the frequent jolting, jarring and bumping when travelling over uneven road and ground conditions and pressure on her shoulder causing too much pain.[31] She is also no longer able to kayak because she is unable to use a paddle like she did in the past because it involves sustained turning movements of both shoulders, which is difficult and painful for her.
[31]T40
86 I accept that this is a consequence to the plaintiff and one that I can take into account. I accept that it is at the middle of the range.
Application of Richards v Wylie[32] – mental component
[32](2001) 1 VR 79
87 The plaintiff’s evidence was that she has found it emotionally hard to cope with the difficulties she has encountered with her right shoulder and arm trying to continue with her work as a Registered Nurse.
88 In accordance with Richards v Wylie, a “serious injury” can have its “seriousness” measured in part by a mental response to a physical impairment. Accordingly, I accept that this is a consequence I can take into account.
Conclusion
89 I accept that the plaintiff has suffered the abovementioned consequences. Those consequences are supported by the evidence of the plaintiff, her husband and the medical evidence. I accept that the plaintiff was a physically active woman. At age forty, she retrained and practiced as an Emergency Nurse. She can no longer perform that work and is using her qualifications in work that she finds less stimulating and demanding to the work she was performing. To all intents and purposes, she lives with her current situation and gets on with it.
90 I am satisfied that the plaintiff was involved in a transport accident which, to this plaintiff, resulted in her experiencing symptoms of a physical nature to her right shoulder. The consequences of her injury have impacted on her life as she knew it before the accident. She has suffered for five years, and the medical evidence is guarded as to the future. I accept that the plaintiff’s right shoulder injury is long-term.
91 For the foregoing reasons, I am satisfied that the plaintiff has established that the consequences to her of her impairment can be reasonably described as being serious. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful. In considering the consequences, I have accumulated the consequences which I am permitted to do.[33] I have not treated each consequence as equal but, rather, attributed appropriate weight to each consequence in light of the evidence.
[33]Sutton v Laminex Group Pty Ltd (supra) at paragraph [114]
92 I accept that the right shoulder injury has consequences to the plaintiff that, when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of hearing as “at least very considerable” and certainly “more than significant or marked”.[34]
[34]Humphries & Anor v Poljak [1992] 2 VR 129
93 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for the injuries suffered in the transport accident on 10 March 2011.
94 I will hear the parties on costs.
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