Gorman v TAC
[2025] VCC 660
•13 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-24-04855
| DEAN GORMAN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 May 2025 | |
DATE OF JUDGMENT: | 13 June 2025 | |
CASE MAY BE CITED AS: | Gorman v TAC | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 660 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Transport accident – left shoulder injury – prior lower back injury – psychological impairments – credibility and reliability of the plaintiff – failure to disclose nature of back injury
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited:Petkovski v Galletti [1994] 1 V.R. 436; Peak Engineering v McKenzie [2014] VSCA 67; Juma v KoneElevators Pty Ltd [2024] VSCA 217
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A J Moulds KC and Mr S Carson | Arnold Thomas & Becker |
| For the Defendant | Mr S Smith KC and Ms E Golshtein | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1In his affidavit, Mr Dean Gorman advances a reasonably straightforward case: that he had recovered from a back injury sustained in 2011, gone on to work as a school grounds keeper, but by reason of a motor vehicle accident on 19 March 2022, he injured his left shoulder and has not been able to return to work in that position. As such, he claims to have sustained a serious injury to his left shoulder in accordance with s93(4) of the Transport Accident Act 1986.
2Save for accepting the 2022 motor vehicle accident occurred, his case is contested by the defendant on nearly all levels. First, that his left shoulder injury was caused by the 2022 motor vehicle accident – on the basis it was a pre-existing condition. Second, if it did arise in the 2022 motor vehicle accident, whether its impairment consequences could be separated from pre-existing impairment consequences to the left shoulder in accordance with the principles enunciated in Petkovski v Galletti.[1] Thirdly, assuming he could satisfy the test in Petkovski, whether those impairment consequences had been adequately disentangled from his lower back and mental health impairments in accordance Peak Engineering v McKenzie at paragraph [24].[2] The defendant submitted that in determining each of these issues, the plaintiff’s evidence was unreliable and his evidence overall lacked credit.[3]
[1] [1994] 1 V.R. 436
[2] [2014] VSCA 67
[3]Juma v Kone Elevators Pty Ltd [2024] VSCA 217 at [79]
3For the following reasons I have determined that the plaintiff’s evidence was unreliable, and further that the defendant’s submissions as to question 3 must be accepted. The plaintiff’s application will be denied.
Relevant facts
4These can be briefly stated. The plaintiff was born in 1970. He left school in about year 10 at age 16, and worked in labouring jobs. In about 2001, he obtained a job as a car detailer. In 2011 his daughter was born. Some time after this, he separated with his partner and custody disputes developed. Those custody disputes play a role in the defendant’s arguments as to the veracity of the plaintiff’s affidavit material and also as to whether the plaintiff can disentangle the mental health impairments arising from those custody disputes from the impairment consequences alleged to have arisen from his shoulder injury. In that same year, 2011, he was involved in a motor vehicle accident when his car was rear ended. He deposed:
“I suffered a nasty back injury in 2011 when I was rear ended by a truck. That injury put me out of the workforce for four years until 2020”.[4]
[4]Plaintiff’s Court Book (“PCB”) 6 at paragraph [9] – the year 2020 is clearly an error and must mean about 2017/2018 when it is accepted he started as a groundskeeper
5There is real dispute about the injury sustained in that 2011 motor vehicle accident and whether the plaintiff’s affidavit tells the complete story of the injury sustained.
6It appears that he returned to work as a grounds keeper on a voluntary basis in about 2017.[5]
[5]There is real uncertainty about this
7It is uncertain exactly when, but in about 2018 he was employed by Doveton Secondary School as a grounds keeper. His affidavit describes this as:
“… a physically demanding … job”.[6]
[6]PCB 7 at paragraph [11]
8During this time he continued being prescribed intermittent Tramadol.
9On 19 March 2022, the 2022 motor vehicle accident occurred.[7] He deposed in the following terms:
“I was stopped in my car and waiting to turn right into my driveway. I was giving way to oncoming traffic. Another vehicle then collided with my car from the rear. It was a big impact. My car was pushed several metres forward. I was shaken up and felt immediate left shoulder and lower back pain”.[8]
[7]PCB 7 at paragraph [13]
[8] PCB 7 at paragraph [14]
10He attempted to work on for a few days and then went to his long term general practice.[9] He had some time off work and then tried to return to work on a part-time basis doing modified duties. He did not cope and he deposed to worsening pain. He went off work shortly thereafter. He has not returned to work since.[10]
[9]Defendant’s Court Book (“DCB”) 95
[10]I am unable to determine exactly when he left work
11He had surgery, being left shoulder arthroscopic repair for a subscapularis tear and to tether the long head of his biceps, performed by Mr Swan an orthopaedic specialist on 18 November 2022.[11] He has since had two cortisone injections, come under the care of a psychologist and a physiotherapist. No further surgery is planned.
[11]PCB 22
Did the plaintiff sustain injury to the left shoulder in the motor vehicle accident on 19 March 2022?
12This matter was put in issue by the defendant on two bases:
(a) First, that there was a pre-existing medical history of left shoulder injury and pain which had not been properly disclosed:
(i)in his affidavit material;
(ii)to doctors, and as such the medical opinions the plaintiff called in aid from Mr Miller, Dr Sheard and Dr Awad could not be accepted.
(b) Second, the forces at play in the motor vehicle accident were insufficient to cause the injury the plaintiff was diagnosed with. For this proposition the defendant relied on Mr Chehata’s opinion.
13Considering all the material, it is abundantly clear that the plaintiff’s affidavit material does not disclose the severity of his pre-existing left shoulder injury which followed the 2011 motor vehicle accident. It will be recalled that he deposed to suffering a “nasty back injury” in 2011. No mention of any left shoulder injury was made. This is contrasted with the clinical notes of Dr Ng who recorded on 28 May 2014 that the plaintiff had left shoulder pain which was persistent.[12] The treating doctor then reported on 8 November 2014 in the following terms, that since the 2011 motor vehicle accident he:
“… has been affected since and has not been able to return to pre-injury duties. His main symptoms are pain in the shoulders, the neck and lumbar spine”.[13]
[12]DCB 85
[13]DBC 42
14However, after examining the clinical notes it can be seen that they refer predominantly to right shoulder pain. This is in contradistinction to the plaintiff’s current complaints of left shoulder pain. There are limited recordings of left shoulder complaint. On 13 September 2017, Dr Ng noted left shoulder pain aggravated from the 2011 motor vehicle accident,[14] and a restriction in movement of the left shoulder above shoulder height. Later, on 29 November 2017, Dr Ng prescribed Tramadol for both neck and left shoulder pain.[15] No further recordings in respect of left shoulder pain are made until after the date of injury on 19 March 2022. However, Tramadol continued to be prescribed intermittently for back pain in this period according to the notes.
[14]DCB 88
[15]DCB 89
15This history is of significance. The left shoulder, on the treating doctor recordings post the 2011 motor vehicle accident was a factor in rendering the plaintiff incapacitated for work. The plaintiff must have appreciated that as he reported ongoing symptoms with the left shoulder from 2011 to 2017. However, it was intermittent reporting which ends in late 2017. The plaintiff then worked in a physically demanding job with no reports of left shoulder aggravations. In that setting it is understandable why in 2024, some six years after his last consult for left shoulder pain associated with the 2011 motor vehicle accident, he did not place much significance on it, and is a plausible explanation for why it was not mentioned in the affidavit. To summarise on this point, while I consider his evidence as to the pre-existing state of his left shoulder injury before the 2022 motor vehicle accident was incomplete, the reason for this is logically explicable and I do not attach great significance to the omission of such matters from his affidavit material.
16Counsel for the defendant cross-examined the plaintiff on the basis that his Tramadol prescriptions from 2017 up to the date of injury were in respect of his left shoulder. A close reading of the notes does not support a submission based on the plaintiff's answers which was that the Tramadol was prescribed for the left shoulder from 2017 to the date of the motor vehicle accident in 2022. Not much turns on this. The plaintiff conceded his memory on the topic was not detailed given the lapse of time. Further, the notes show clearly that after 2017 the Tramadol was for low back or neck pain and not left shoulder pain.
17Turning to consider the medical opinion. The failure to inform Mr Miller[16] or for Dr Sheard to factor in the pre-existing medical history of left shoulder injury and ongoing pain, deprives their opinion on causation of much force. Similarly, he denied a past medical history of left shoulder pain to Mr Chehata.[17] I consider the opinion on causation of Dr Awad is well outside her area of expertise. Particularly, when she delves into the forces that play in the motor vehicle accident in an attempt to criticise Mr Chehata’s opinion on causation. Her commentary in this section of her report reveals her to be an advocate on the topic rather than an expert.[18] For this reason, I place no weight on her opinion as to causation.
[16]PCB 100
[17]DCB 23
[18]PCB 120
18However, I do not accept Mr Chehata’s opinion overall as I prefer the opinion of Mr Swan, his treating orthopaedic surgeon, who saw him closest in time to the motor vehicle accident, operated upon him and then carefully monitored him over the following nine months during his recovery. In the course of so doing, I consider he developed the most informed, objective and contemporaneous view as a treating specialist. His diagnosis is of a subscapularis tendon rupture with concurrent subluxation to the long head of the biceps tendon caused by the 2022 motor vehicle accident.[19] I accept that opinion as to the cause of the injury which occurred to the left shoulder in the 2022 motor vehicle accident. For the reasons I have set out, that injury is distinct from any left shoulder problems or injuries before. First, and most consequentially he had never previously had an x-ray or ultrasound for his left shoulder which strongly suggests his treating practitioners did not consider the left shoulder complaints serious enough to warrant investigation. When that was done it revealed the significant pathology Mr Swan relates to the 2022 motor vehicle accident. Second, his surgeon defines it as occurring in the 2022 motor vehicle accident. Third, he was able to work a physically demanding job with that injury, which he was precluded from for at least a year or more by reason of the 2022 motor vehicle accident. So while his evidence was unreliable as to the period 2011 to 2017, these matters all suggest very strongly that the pathology and severity of the left shoulder injury was significantly different to any injury which had occurred in the 2011 motor vehicle accident.
[19]PCB 22
Can the plaintiff isolate the impairment consequences from his left shoulder injury in accordance with the test in Petkovski v Galletti?
19This issue is clouded by significant matters to do with his low back injury and mental health claim. These were not revealed in any detail, if at all, in his affidavit material. Before starting the analysis of the evidence on this topic it is important to note that when the plaintiff swore his first affidavit, he claimed that in the 2022 motor vehicle accident he sustained an injury to the lumbar spine, injury to the left shoulder and a psychiatric illness or behavioural disorder.[20] By reason of that, it could be supposed his affidavit material was drawn to adequately disclose past medical history relevant to each of those topics (injuries) and then identify the impairment consequences of each.
[20] PCB 6 at paragraphs [4]-[5]
20However, at the start of the hearing the plaintiff abandoned his claim for lower back and mental injuries. In that circumstance it was necessary that the affidavits clearly identify what impairment consequences related to the left shoulder and distinguish those from impairment consequences said to arise from the low back and mental injuries. It did not.
The low back injury
21Starting with the low back. I have set out the plaintiff’s evidence of the “nasty back injury” arising from the 2011 motor vehicle accident. He deposed that it did improve and was under control as of March 2022.[21] In his second affidavit, he said no more about his past medical history from 2011 to 2022 in relation to his low back. However, he did state that his low back had deteriorated a little.[22] He deposed that since the first affidavit he now had low back pain into the buttocks, groin and legs. He deposed to struggling to sit for too long or walk for more than 30 to 40 minutes. In contrast, the history I have set out above from his treating doctor shows that he had persistent low back pain in 2011,[23] specifically in 2014,[24] in 2017,[25] and in 2018.[26] In respect of medication, he was prescribed Tramadol in 2017,[27] in 2018[28] and in 2020.[29] In 2021 he presented with worsening back and hip pain.[30]
[21]PCB 7 at paragraph [10]
[22]PCB 14 at paragraphs [2]-[3]
[23]DCB 46
[24]DCB 42
[25]DCB 88
[26] DCB 90
[27] DCB 88-89
[28] DCB 90
[29] DCB 92
[30] DCB 94
22While the plaintiff can point to the fact that he was working a physical job and had no time off work for his low back condition, these matters I consider are relevant because they go to show the plaintiff was not infrequently requiring prescription medication for his low back. In a situation where his material was drawn to advance a case that the 2022 motor vehicle accident aggravated that low back condition, it was critical information for the Court to have to embark on the analysis called for by Petkovski. However, the fact now is that the plaintiff claims ongoing pain consequences from the left shoulder injury. It that setting it is important for the Court to be informed of the past pain medication regime so as to be able to perform the analysis required by Peak Engineering at [24]. The Court is in a difficult position if the affidavit material does not properly lay out the situation both before and after in respect of each of the injuries claimed. As I have set out, the plaintiff referred to a “little” deterioration in his low back from the time of his first affidavit to his second in March 2025. I considered that to be a significant understatement of the condition. Mr Miller records that his low back is a major problem for him, it radiates down both lower limbs and while his symptoms fluctuate they tend to deterioration.[31] It is recorded as pain which interrupts his sleep and precludes a return to work,[32] where the physical demands are above five kilograms.
[31] PCB 99
[32]Ibid
23While Dr Awad took a history of low back pain she focused on the left shoulder: her report is not comprehensive as a result and for the reasons I set out as to her advocacy, I do not place any weight on her opinion. Dr Sheard’s opinion was prior to the first affidavit and is not relevant. Mr Chehata has a history in February 2025 of an aggravation of low back pain but of no real significance. In cross-examination the plaintiff accepted that his low back problems now stop him from working as a grounds keeper because he was constantly in pain. Overall, I consider the evidence as to his low back state after the surgery was accurate. However, in relation to the revelations in cross-examination of the range of matters it precludes him from doing, I find it impossible to determine the extent of the impairments arising from his left shoulder. His concession in cross-examination of not being able to work as a grounds keeper because of his low back pain accords with Mr Miller’s opinion.[33]
[33]Ibid
The state of left shoulder injury
24Coming then to the plaintiff’s left shoulder condition following surgery. His treating specialist recorded over numerous reviews in 2023 that he had variable progress but, in his report in August 2023, when he last examined and reviewed the plaintiff, he reported pain and range of motion were much improved with only marginal restriction in the range of motion. It was recorded that the plaintiff was otherwise able to return to most pursuits, including work with a lifting restriction of 15 kilograms.[34] When this was put to him in cross-examination, the plaintiff said that he disagreed that this was the case as of August 2023. He gave evidence that a cortisone injection a month before had helped for only two weeks. He was pressed on this point and said that Mr Swan had tested his range of motion and told him the above lifting restrictions but that as he could not be guaranteed he would not hurt himself, he was unwilling to attempt any return to work.[35] He was then taken to Dr Slesenger’s examination findings, only a month later, where his range of motion was said to be severely limited. It was put to him this was in complete contrast to Mr Swan’s finding and represented a deliberate attempt to downplay his actual range of motion. The exchange in cross-examination and the vastly different range of motion findings on clinical examination, only one month apart, left me with the strong impression the plaintiff was not being candid. For example, if the cortisone injection wore off by the time of Mr Swan’s examination why was his range of motion so large? Why – a month later with no treatment did it become so poor? And yet his physiotherapist recorded figures of range of motion on clinical assessment as similar to Mr Swan and opined that the pain and range of motion improved substantially since the cortisone injections on 2 June 2023 and 19 July 2023.[36] I consider overall that the best and most reliable evidence is from the contemporaneous recordings of the plaintiff’s specialist and physiotherapist. I consider then that both the physiotherapist and Mr Swan performed clinical examinations which were accurate, and objective and the best guide as to the plaintiff’s state of function with his left shoulder. I accept that evidence. I find the plaintiff’s evidence on the topic of the state of his left shoulder to be unreliable. It was not consistent with his treaters findings and it was at times internally inconsistent – as set out above.
[34] PCB 61-63
[35] Transcript (“T”) 37, Line (“L”) 23 – T38, L18
[36]PCB 102; PCB 38
Mental injury
25As to his mental health, an examination of all the material shows that the plaintiff has not properly disclosed the extent or severity of his mental health issues. In his affidavit he deposed that the 2022 motor vehicle accident had worsened his mental health.[37] However, he did not disclose that a significant cause for his mental health issues was to do with his daughter’s eating disorder and custody issues from mid-2023 onwards,[38] and that such persisted into 2024 requiring medication.[39] Temporally, the prescription of medication and its consistent dosage over the rest of the 2024 year, links his mental state most closely to the custody issues rather than the 2022 motor vehicle accident. This became extreme by the end of 2024.[40] And it was in that setting that his treating doctor opined:
“Dean’s mental health has prevented him from performing any occupation within the scope of his knowledge, skill set and training”.[41]
[37]PCB 16 at paragraph [10]
[38]DCB 48; DCB 55-56; DCB 60
[39] The plaintiff was prescribed Mirtazapine 45mg from May to December 2024
[40]DCB 48
[41] PCB 34
26He was cross-examined about a recording in his psychologist’s notes dated 21 December 2023[42] some six months before his first affidavit. In it there is a recording that the plaintiff was dealing with significant custody and property issues and these were increasing his stress. When asked why he had not revealed these matters as causes of his mental health issues in his affidavit material, he simply replied that he did not know.[43] I consider the affidavit concealed significant relevant matters in play. Once again, I find the evidence unreliable both because it was not a frank and full disclosure of a relevant matter. The plaintiff’s answer in cross-examination that he did not know of these matters such a short time ago does not seem logical. To sum up as to the plaintiff’s reliability and credibility, while I do not consider a finding on credit can be made, I do consider the plaintiff’s evidence is wholly unreliable as to his impairment consequences. This is seen from the failure to disclose pre-existing issues, the true nature of his back injury and the state of his mental health. It is also shown in his failure to logically answer when matters of very recent history were put.
[42]DCB 55
[43] T27, L17-23
27Turning to the analysis of the actual impairment consequences of the left shoulder and a consideration of all the evidence in this case. The first matter I find is that the plaintiff’s shoulder function – both as to range of motion and strength – is unable to be determined accurately. For the matters above – the report of Mr Swan and the treating physiotherapist – I consider the plaintiff’s evidence to be unreliable. In addition, I accept his treating specialist and physiotherapists recordings in mid-2023 as to his strength and function of the left shoulder as being accurate. This is enough for me to deny the plaintiff’s application. However, I will proceed below to indicate the alternative basis for why the plaintiff’s claim cannot succeed. In attempting to disentangle the impairment consequences which are alleged to flow from the left shoulder injury, there is significant overlap with impairment consequences which flow from both the low back injury and/or the mental injury.
28In respect of work, the evidence I have accepted of Mr Swan is clear that the plaintiff can work. However, Mr Miller opines that the plaintiff cannot work because of his low back incapacity. The treating doctor as I have set out, states that he cannot work because of the mental health issues that he faces. In cross-examination, the plaintiff accepted that his low back injury made it almost impossible to return to work as a grounds keeper. On this topic, the evidence is so confused and at times contradictory, it is impossible to assess whether the left shoulder injury and its impairment consequences can be separated from the low back and the mental health issues.
29In respect of recreational incapacities alleged, the plaintiff submits that he cannot go ten pin bowling by reason of the left shoulder injury. However, in evidence he made clear that the low back injury also prevents him from going bowling and that he has to use a device to help bowl the ball which does not involve any use of the left arm in any event. As such, I cannot accept that his left shoulder prevents him bowling.
30The plaintiff alleges that he cannot go bike riding by reason of the left shoulder injury. However, this would seem to have been foreclosed to him by reason of the low back injury in any event because he gave evidence that he could not bend over for prolonged periods.[44] This is consistent with Mr Miller’s opinion.[45] Similarly, his abilities to vacuum and walk are significantly impacted by the low back injury. The effect of the left shoulder on these activities cannot be discerned.
[44] T10, L9-24; T11, L19-23; T13, L12-15
[45] PCB 104
31To summarise the reasons why I deny the plaintiff’s application then:
(a) I have found the plaintiff sustained a shoulder injury in the 2022 motor vehicle accident;
(b) the plaintiff was an unreliable witness whose affidavit evidence was incomplete as to relevant matters and his viva voce evidence was at times illogical;
(c) the plaintiff had a significant low back injury in the past which has continued to progress and deteriorate such that it incapacitates him for work and a range of recreational and domestic activities;
(d) the plaintiff’s mental health has deteriorated significantly over at least the last 18 months to the point where it has a significant effect on his occupational, domestic and social activities;
(e) the effects of his low back and mental health injuries are such that his left shoulder impairment consequences cannot be determined on the balance of probabilities;
(f) the function of the left shoulder is as the plaintiff’s treating specialist described it in August 2023 on clinical examination. This is inconsistent with the plaintiff’s evidence as to his impairment consequences, which cannot be accepted as a result.
32For these reasons I will deny the plaintiff’s claim.
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