Gossa v Transport Accident Commission
[2014] VCC 706
•23 May 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-01608
| LIKYELESH GOSSA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 March, 1 and 2 April 2014 | |
DATE OF JUDGMENT: | 23 May 2014 | |
CASE MAY BE CITED AS: | Gossa v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 706 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the left shoulder
Legislation Cited: Transport Accident Act 1986, s93(4)(d), s93(6), s93(17)(a)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards & Anor v Wylie (2000) 1 VR 79; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Barlow v Hollis [2000] VSCA 26
Judgment:Leave granted to the plaintiff to bring proceedings for damages in relation to injuries sustained in the transport accident on 17 May 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J M Forbes | Slater and Gordon Limited |
| For the Defendant | Mr S Smith | Solicitor to the Transport Accident Commission |
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 17 May 2008 (“the transport accident”).
2 Section 93(6) 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 left shoulder, producing impairment to the left arm, which is her dominant arm.
5 The plaintiff seeks leave to issue proceedings at common law.
6 The plaintiff relied upon six affidavits: four sworn by the plaintiff on 24 May 2010, 20 July 2011, 4 June 2013 and 18 March 2014; an affidavit of Tesfaye Wayessa, a colleague, sworn 6 May 2013, and an affidavit of the plaintiff’s daughter, Hawarmi Haile Tola, sworn 18 March 2014.
7 The plaintiff was cross-examined. I have not summarised the plaintiff’s affidavits and evidence. However, I will refer to the relevant evidence of the plaintiff and witnesses in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities:
(a)that the injury suffered by the plaintiff was as a result of the transport accident;
(b)that the injury is a “serious injury” as defined in s93(17) of the Act.
9 The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function and then, by reference to the consequences of that impairment, whether it is serious and long term. The requirements of the test are set out in the decision of Humphries & Anor v Poljak,[1] where the majority of the Court of Appeal said:
“To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[2]
[1][1992] 2 VR 129
[2] Humphries & Anor v Poljak (supra) at paragraph [140]
10 The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.[3]
[3]Richards & Anor v Wylie (2000) 1 VR 79
11 In determining the application, the Court must make the assessment of “serious injury” at the time the application is heard.[4]
[4] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
12 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[5]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[5][1998] 1 VR 702
13 The term “serious” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[6]
[6]Transport Accident Commission & O’Dea v Dennis (supra) at 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. In particular, Chernov JA at paragraph [29]
The issues
14 Counsel for the defendant submitted there were three issues:
(i) Causation;
(ii) Whether the consequences of the plaintiff’s injury meet the statutory definition;
(iii) A question of identification of the source of the claimed consequences; and
(iv) Credit of the plaintiff.
Investigations and treatment
15 On 15 January 2009, an x‑ray of the plaintiff’s neck and left shoulder reported:
“Left Shoulder XR
…
Bony irregularity at insertion of the rotator cuff with possible calcific tendonopathy of the rotator cuff.
Ultrasound correlation is recommended.
Cervical Spine
…
Surgical clips are consistent with previous thyroid surgery. There is no other abnormality.”[7]
[7]Court Book (“CB”) 44
16 On 7 April 2009, a CT scan of the cervical spine concluded:
“1Mild left C5-6 and C6-7 foraminal narrowing is developing with small osteophytes, there is no focal disc prolapse, or evidence for neural impingement.
2Mild degenerative change is present based at C1-2.”[8]
[8]CB 45
17 A left shoulder ultrasound concluded:
“There is a 1.2cm anterior supraspinatus insertional tear. The margin could be consistent with subacute injury. There is associated bursitis and impingement.”[9]
[9]CB 45
18 On 5 August 2009, an x‑ray of the thoracic spine showed there is normal alignment of the thoracic spine with no significant loss of vertebral body height. Moderate degenerative change is noted within the mid-thoracic spine with large osteophytes along the anterior aspect of the end plates adjacent to the invertebral discs. Surgical clips are noted within the left side of the neck.
19 On 28 December 2012, an ultrasound of the left shoulder concluded a normal study.
20 On 8 July 2013, an MRI scan of the left shoulder concluded:
“… Post surgical changes in keeping with previous rotator cuff repair. The supraspinatus tendon is thick but intact in keeping with post surgical change without evidence of re-tear. Deep partial thickness tear at the insertion of infraspinatus but no full thickness tear. Mild subacromial bursitis.
Mild degenerative change of the glenohumeral joint.”[10]
[10]CB 48(d)
21 On 1 August 2013, the plaintiff was administered an injection of steroid and local anaesthetic into the left subacromial bursa, which the plaintiff reported reduced the pain.
22 On 24 October 2013, the plaintiff reported the injection provided two months of pain relief.
The Plaintiff’s medical evidence
Dandenong Hospital report
23 In December 2009, the medical administrator confirmed that the plaintiff attended the Emergency Department the day following the transport accident, being 17 May 2008, complaining of pain in the neck, the left ankle and knee. Her neck was not tender and was reasonably flexible. Her ribs were tender, but no abnormality was found on the examination of the legs. X-ray of the chest showed no rib fracture. A diagnosis of whiplash injury was made and she was discharged to the care of her local doctor.
24 The plaintiff’s evidence was that on 1 June 2008, she travelled to the United States on a pre-arranged trip, returning in August 2008. She was in significant pain as a result of the injuries from the transport accident. She attended the Minneapolis Hospital Emergency Department for pain. She was prescribed medication for treatment of the pain she was suffering.
Dr Don Yiap
25 Dr Yiap, general practitioner, treated the plaintiff and provided medical reports dated 26 February 2010, April 2012, May, July and November 2013 and March 2014.
26 In February 2010, Dr Yiap confirmed that he first saw the plaintiff in January 2009, when she complained of injury to her neck, left shoulder and left leg. He noted that on examination, the left shoulder abduction was to 90 degrees only. An x‑ray was performed of the left shoulder and the plaintiff was referred to physiotherapy and prescribed Mobic.
27 In April 2009, the plaintiff complained of pain in the neck, the left shoulder, especially on looking to the left, which radiated to her left ear and eye. She was referred for a further ultrasound of her left shoulder and a CT scan of her neck. Medication was prescribed for the pain. The ultrasound of the left shoulder revealed a tear of the supraspinatus.
28 As a result of the investigations, the plaintiff was referred for a cortisone injection into the left shoulder for bursitis, which was performed in April 2009. The plaintiff reported improvement and abduction had increased. The plaintiff was attending ongoing physiotherapy, on a weekly basis. There was a delay in the surgery, which was unrelated to the plaintiff.
29 Dr Yiap diagnosed a full-thickness supraspinatus tendon tear with bursitis and impingement, and Adjustment Disorder with depressive symptoms. He referred the plaintiff to a psychologist.
30 By August 2009, the plaintiff was complaining of pain in her left shoulder. She was referred to Mr Trung Nguyen, orthopaedic surgeon, who recommended surgery with arthroscopic decompression and rotator cuff repair. There was a delay in the surgery, which was unrelated to the plaintiff.
31 In April 2012, Dr Yiap reported that surgery was performed in February 2011 by Mr Nguyen. The plaintiff’s range of movement improved considerably after surgery, but abduction then reduced to about 90 degrees, consistent with a frozen shoulder. Physiotherapy was commenced post operatively. The plaintiff was referred back to Mr Nguyen in September 2011. He recommended hydrodilatation; this was administered in October 2011 with an improvement of abduction. Mr Nguyen again recommended hydrodilatation in January 2012.
32 In December 2012, the plaintiff was reporting pain on abduction to Dr Yiap. A further ultrasound was performed in December 2012. Dr Yiap expected the plaintiff’s prognosis to be good.
33 In May 2013, Dr Yiap reported that the plaintiff was complaining of pain in the left shoulder and neck. He reported that apart from simple analgesia of Panadeine, the plaintiff was not having any other treatment since his last report of April 2012. He thought the plaintiff may require physiotherapy and hydrotherapy in the future. He thought any further deterioration would be age-related and not likely to be related to the accident. He thought her condition was stable. He noted that since his last report, the plaintiff failed to complain of her accident during routine consultations.
34 In July 2013, Dr Yiap sought approval for injections of steroid to the left shoulder under ultrasound control, which was performed on 1 August 2013.
35 Dr Yiap had not seen the plaintiff in respect to her left shoulder injury since October 2013, when she reported that the injection gave her relief for two months and she wished to continue with the physiotherapy.
Spine Management Clinics – Dandenong
36 In April 2011, Ms Ellis, physiotherapist, confirmed that the plaintiff received physiotherapy and that she should progress to a full range of movement and strength within two to three months.
Dr Brian Strubel
37 In November 2009, Dr Strubel, psychologist, confirmed that he treated the plaintiff between August and October 2009. He and Dr Yiap initially diagnosed the plaintiff as suffering from Post-Traumatic Stress Disorder (“PTSD”) and a Chronic Pain Disorder. He said the plaintiff’s prognosis remained guarded. He said the plaintiff had benefited from taking anti-depressant medication and psychological treatment. No further treatment was recommended, but there remained a possibility she would suffer a relapse in the future, which might necessitate further treatment. He thought she was psychologically fit to perform her duties as an interpreter.
Mr Trung Nguyen
38 In September 2011, Mr Nguyen, orthopaedic surgeon, confirmed that he treated the plaintiff for the left shoulder and performed a left shoulder arthroscopic acromioplasty, plus resection of the subacromial bursa, plus resection of the AC joint, plus rotator cuff. He said her left shoulder functioning was still improving, that it normally takes twelve months for the shoulder to reach its maximum recovery. He expected her shoulder function to stabilise around February 2012.
39 Mr Nguyen said the plaintiff’s injury was caused or aggravated by the transport accident on 17 May 2008. The plaintiff denied any left shoulder symptoms prior to the accident. He accepted the left shoulder symptoms were caused by the transport accident.
40 In October 2011, Mr Nguyen reported to the Transport Accident Commission (“TAC”) and the plaintiff’s general practitioner that he reviewed the plaintiff subsequent to his report of September 2011. The plaintiff reported she had developed adhesive capsulitis or frozen shoulder on the left side. On examination, she had 50 per cent of the normal range of movement. He referred the plaintiff for hydrodilatation and planned to review her in six months.
41 By January 2012, Mr Nguyen reported the plaintiff’s range of movement had increased to 80 to 85 per cent of her normal shoulder range of motion. In March 2012, he recommended further hydrodilatation.
Dr Clayton Thomas
42 Dr Thomas, consultant in rehabilitation and pain medicine, saw the plaintiff at the request of the plaintiff’s solicitors on 25 February 2010, 24 November 2011, 19 June 2012, 8 July 2013 and 11 February 2014.
43 In February 2014, Dr Thomas said the plaintiff reported a positive result to the surgical intervention but still had ongoing residual problems. She described the left arm as being “useless”; she cannot use the left arm for any activities and has difficulty using it to wash herself when she showers. She reported difficulty carrying objects with the left arm.
44 On examination, there was wasting of the left shoulder girdle, range of movement of her left shoulder was limited and the shoulder was globally weak. It was Dr Thomas’ view that the transport accident contributed to the plaintiff’s problems in her left shoulder and may have converted these into becoming symptomatic. He said it was probable the plaintiff had some tearing of the left supraspinatus prior to the accident, but subsequent to the accident, it became either symptomatic or larger. He said it was difficult to ascribe her current condition, as there was an element of overlay present. He said she did not contribute maximally to the examination performance to get a good feel as to the true nature of her residual problems. He was reliant on his previous assessments.
45 In July 2013, Dr Clayton Thomas said the MRI scan of 8 July 2013 was consistent with the plaintiff’s history and complaints relating to the left shoulder. Left shoulder flexion was 90 degrees, abduction 80 degrees, external and internal rotation were moderately limited, adduction 30 degrees and extension 40 degrees. Examination of her arms revealed identical sizes of forearm and arm. He thought she had a work capacity.
Dr Nathan Serry
46 Dr Serry, psychiatrist, examined the plaintiff in March 2010 and June 2012 at the request of the plaintiff’s solicitor. He provided two further reports of May 2013 and March 2014 in respect to reports forwarded from Dr Yiap.
47 In June 2012, Dr Serry said the plaintiff continued to experience the physical sequelae and, although there had been some improvement to the shoulder post-surgery, she had never returned to her previous level of functioning. From a psychiatric viewpoint, he said the plaintiff remained stressed, anxious, frustrated, somewhat depressed and also particularly traumatised. He reported that she was no longer taking antidepressant medication, but sees a psychologist regularly and takes valium to assist her sleep.
48 The plaintiff reported an altered lifestyle. Her mobility was restricted by physical factors, compounded by ongoing anxiety in relation to going out. She spends most of her time at home, much of this in bed, particularly in winter. Dr Serry said the plaintiff’s prognosis remained guarded, given her persistent pain and ongoing anxiety, depression and traumatisation. He thought she should be receiving psychiatric treatment and should be consulting a psychologist. He said the plaintiff had a Chronic Adjustment Disorder with Anxious and Depressed Mood and with features of traumatisation consistent with a PTSD.
49 In March 2014, Dr Serry considered the most recent report of Dr Yiap dated March 2014 and the ultrasound report. He said there was no information in the documentation provided that would cause him to alter the conclusion reached in his report of June 2012.
Mr Kevin S King
50 Mr King, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitors in December 2012 and December 2013. He provided supplementary reports of May and July 2013 and March 2014, the effect of which was that the opinions previously expressed by him remained unchanged.
51 In December 2013, the plaintiff reported constant aching pain, stiffness and weakness in the left shoulder, always present, varying from moderate to severe in intensity, aggravated by use of the left arm and disturbing her sleep at night. On examination, Mr King said the plaintiff:
“… has the classical signs of a chronic rotator cuff injury of mild to moderate severity with mild limitation of glenohumeral and combined movement in the left shoulder.”
52 On examination, the range of movements of the left shoulder were the exact same findings recorded in December 2012 and the overall impression was that the left shoulder is stabilised at its present level of impairment. It was his opinion that in the traffic accident, the plaintiff was exposed to a severe degree of generalised trauma, that her condition had stabilised, the left shoulder gave the overall impression that it may have improved a little, but she has been left with chronic impairment of movement in the left shoulder, both glenohumeral and combined movements, aggravated by movements of the arm.
The Defendant’s medical evidence
Dr Timothy J Entwisle
53 Dr Entwisle, psychiatrist, medically examined the plaintiff at the request of the TAC in January 2011 and January 2012.
54 In January 2011, he diagnosed a Chronic Adjustment Disorder with Depressed Mood.
55 In January 2012, he said:
“Mrs Gossa’s account was discursive and involved considerable preoccupation in regard to her level of disability. She rambled and she was difficult to guide and had to be directed in regard to the history giving process. … .”[11]
[11]CB 114
56 Dr Entwisle said there were a variety of psychosocial stresses and non-accident related health problems. He diagnosed a Chronic Adjustment Disorder with Depressed Mood. He said, in summary, the plaintiff’s presentation continues to be significantly contributed to by non-accident related matters. He said emotional factors are likely to explain her current presentation and those emotional factors relate to non-accident-related issues.
Mr Robert Dickens
57 Mr Dickens, orthopaedic surgeon, examined the plaintiff at the request of the TAC in May 2011, January 2012 and February 2014. In his most recent report, Mr Dickens said the plaintiff seemed to be –
“… somewhat confused and rambling in providing her history … .
She had ongoing problems with the left shoulder associated with reduced movement … .
… she has had injections into the left shoulder every 3 months. … she may have had some physiotherapy in the last 2 years.
She saw … Dr Yiap, every week.”[12]
[12]CB 134
58 Mr Dickens reviewed the MRI scan of the left shoulder of 8 July 2013 and said it demonstrated the changes one would expect in someone who had a repair of the rotator cuff. He said the supraspinatus tendon appeared to be intact. There was possibly a tear of the infraspinatus deep structures and some mild degenerative changes in the glenohumeral joint. It was his diagnosis that the plaintiff had a rotator cuff tear, treated surgically, but with ongoing symptoms. He said the left shoulder injury was a result of the transport accident. He said the plaintiff suffered a soft-tissue injury to the left shoulder with a supraspinatus tear requiring surgical treatment, now healed, but with ongoing symptoms.
59 He said the plaintiff had signs which are inconsistent and suggestive of an abnormal illness response with a hemi-hypo anaesthesia involving the whole of the left side of her body, which is anatomically impossible. Further, he said after surgical intervention for rotator cuff tear, it is not uncommon to have some persistent symptoms in the long term. He accepted the left shoulder injury was accident-related.
Mr Michael Shannon
60 In December 2010, Mr Shannon, orthopaedic surgeon, examined the plaintiff at the request of the TAC. It was his view the plaintiff sustained multiple soft-tissue injuries down the left side of her body including the neck, possibly her left shoulder, her chest and her left leg. He thought her symptoms had an organic basis, and that the shoulder symptoms could be attributed to the accident. He said she had pre-existing symptoms to the left shoulder recorded in her general practitioner’s notes, but these symptoms were not investigated or treated to any significant extent. He said surgery was not unreasonable and the left shoulder pain may be linked to the transport accident.
Surveillance
61 I was informed that the plaintiff was subject to 42.75 hours of surveillance in February 2011, May 2011 and June 2013. I was shown a film taken of the plaintiff on 9 May 2011 of two minutes’ duration. I was shown a second DVD of film taken on the same day of twelve minutes’ duration. The first DVD showed the plaintiff leaving her house, carrying her bag on her right shoulder and getting into a taxi. She was seen returning to her house in a taxi, alighting and walking slowly to the front door. The plaintiff carried her bag in her left hand and changed it to the right hand. Later that day, the plaintiff was shown in a taxi, getting out of the cab, entering a venue and playing a poker machine with her bag over her left shoulder. She was shown leaving the venue, talking with a male. Her bag was on her left shoulder.
62 The surveillance was of limited value as it was recorded in 2011. I accept it showed the plaintiff carrying her bag on the right and left shoulder, which was consistent with her evidence.
The Plaintiff’s credit
63 The plaintiff is aged sixty-eight years. She was born in Ethiopia, where she attended university for three years. She fled Ethiopia for political reasons and arrived in Australia in 1998 as a refugee. She worked as a patient services assistant. At the time of the transport accident, she was working as an interpreter, having undertaken a course at RMIT and qualified as a NAATI accredited interpreter. I was not informed of her level of accreditation. The plaintiff’s first language and her ethnic grouping is Oromo. I was informed that there is a tight-knit Oromo community in Australia and she was a leader in that community prior to the transport accident.
64 In court, the plaintiff presented with a forceful personality and strong presence, and on occasions affected in her presentation.
65 Even though the plaintiff worked as an interpreter, her English was particularly difficult to understand. A number of the medical witnesses commented on this and the discursive nature of the way she outlined her medical history and events surrounding the transport accident.
66 Mr Shannon said:
“She works as an Interpreter, but her command of English is surprisingly poor.”[13]
[13]CB 140
67 Mr Brozek said:
“Although she works as an interpreter, her English skills are significantly limited as to affect her ability to understand her rehab program.”[14]
[14]CB 221
68 In May 2011, Mr Dickens said it was extremely difficult to obtain a history which outlined the sequence of events.[15]
[15]CB 118
69 In February 2014, Mr Dickens said:
“… she seemed to be somewhat confused and rambling in providing her history and although I was initially enquiring as to what had happened since last seen she continually wished to talk about the present day situation and it was not easy to determine what had happened since I last saw her in January of 2012.”[16]
[16]CB 134
70 Mr Entwisle said her speech was at times difficult to follow due to her tendency to digress.[17]
[17]CB 108
71 The doctors’ comments are consistent with the plaintiff’s presentation in Court. In Court on many occasions, her answers were non-responsive to the questions. The plaintiff had difficulty providing concise and direct answers to questions. Often the question that was asked and the answer that was given did not match in time. The plaintiff seemed to have great difficulty in providing answers to the questions which related to her condition in the past. She was pre-occupied with informing the Court about her current disability, and her account was discursive. As a result, a number of the answers given were non-responsive.
72 Counsel for the defendant made a number of submissions in relation to the plaintiff’s credit.
73 First, counsel for the defendant submitted the plaintiff’s evidence was unreliable, and there was a practised course of deceit which was compounded by her non-responsive answers to questions. Overall, I took the view that this overstated the evidence regarding the plaintiff’s credit. I formed the view that the non-responsive answers were not conscious and were not necessarily attributable to language, but rather from a lack of understanding of the concepts that were sought to be drawn out from the evidence. I accept that the plaintiff was doing her best in the circumstances.
74 Second, Counsel for the defendant submitted that I should have no regard to the affidavits sworn by the plaintiff. It was submitted that the plaintiff, in her affidavit material, had misled the Court. In particular, that she conveyed that, prior to her accident, she had not required Mobic, Temazepam or Tramadol. I do not accept that submission. The plaintiff deposed in her affidavit that her current medication includes Mobic, Diazepam, Tramadol and Esipram. She conceded that she had been prescribed valium in the past. The medical records of the general practitioner confirmed that on occasions between March 1999 and September 2001, she was prescribed Temazepam to assist with sleep, and in August 2003, Tramal for low-back pain. Further, in 2001, the plaintiff was prescribed Brufen and Celebrex for left shoulder pain. I accept the doctors’ records are an accurate history of the plaintiff’s medication.
75 Counsel for the defendant also directed me to the plaintiff’s experience of shoulder pain prior to the transport accident. The plaintiff disclosed earlier episodes of left shoulder pain in her affidavit. The plaintiff was unable to recall those episodes which, given they occurred in 2001, is not surprising. However, Mr Shannon reported that these episodes were not investigated or treated to any significant extent.
76 Third, that the plaintiff was conveying she had a broken sleep pattern only since the time of the transport accident. I reject that submission. That is incorrect, given the records of the general practitioner. The plaintiff deposed that as a result of the accident, she had certain symptoms and conditions, which she identified. Prior to the transport accident, the records of the general practitioner confirmed that on occasions, the plaintiff had been prescribed medication to assist with sleep, but it was not continuous.
77 Fourth, that the plaintiff, in her affidavit, had misrepresented the position in relation to her interpreting work. Counsel for the plaintiff, in opening, indicated that the plaintiff did not propose to rely on, in any economic sense, a diminution of earnings, given that there was no great difference in the amount of earnings before and after the accident. Rather, the plaintiff deposed to the enjoyment that she received by being involved with her community from performing the interpreting work, and I accept that point. Accordingly, I reject the submission of counsel for the defendant on that point.
78 Fifth, the defendant submitted that when considering the consequences the plaintiff claimed, in view of the manner in which the plaintiff gave her evidence, I should only accept those consequences when they are independently corroborated by another source. Due to the difficulties with the plaintiff’s evidence, I place greater weight on her evidence when it is supported by independent evidence. However, overall, I accept the plaintiff was doing her best in giving her evidence.
79 Counsel referred to the plaintiff’s evidence that she now carries her handbag on her right shoulder rather than the left. There was film shown of the plaintiff carrying her bag over her left shoulder. The plaintiff’s evidence was that it was natural for her to carry her bag on the left shoulder. She will use her right shoulder, but sometimes she will inadvertently use her left. When she gets pain in the left shoulder, she will remove her bag to the right shoulder. I accept the plaintiff’s explanation; it has a ring of truth about it.
80 A further submission was that I should not accept the plaintiff’s evidence in her affidavit of 20 July 2011, in particular at paragraph 6, where the plaintiff stated her range of movement in the left shoulder is limited. She said she cannot reach above her head or behind her back.
81 Counsel for the defendant took me to the report of Mr Nguyen of 3 June 2011, where he described the plaintiff’s left shoulder symptoms as being “of a mild stiffness with internal rotation and some weakness of reaching”. Dr Yiap’s notes on 1 July 2011 record the left shoulder improving, but unable to internally rotate her left arm or elevate it above the horizontal. In September 2011, the plaintiff was referred back to Mr Nguyen to consider whether hydrodilatation was required. This was performed on 18 October 2011. I take the view that the defendant submitted this evidence out of context.
82 Overall, I do not accept that the plaintiff misled the Court. Based on my observations, I believe the plaintiff gave her evidence to the best of her abilities, despite her affected presentation. Accordingly, I place greater weight on her evidence when supported by independent evidence.
Analysis of the evidence
Causation
83 The defendant submitted that causation was an issue, and in particular noted the following:
(i) The circumstances of the transport accident obtained from the Police Report were that impact to the vehicle in which the plaintiff was a passenger was to the front, not left side. There was nothing about the manner of the collision that suggests any form of trauma to the plaintiff’s left shoulder;
(ii) At the time of the accident, the plaintiff did not report left shoulder pain to the hospital or her general practitioner. The Dandenong Hospital report recorded left-sided neck pain and right-sided rib sprain, pain in the neck, left ankle and knee. Further, the plaintiff attended her general practitioner on a number of occasions in May 2008 and on one occasion in September 2008 without referring to her left shoulder;
(iii) The plaintiff went overseas. The plaintiff’s evidence was that she sought medical treatment for her left shoulder while in the United States. Both parties had attempted to obtain the records which were not forthcoming.
84 It was accepted that the first complaint of pain to the plaintiff’s left shoulder was while she was overseas in the United States.
85 The plaintiff said, in her affidavit:
“I was involved in an accident when the car I was a passenger in was hit from the left by another car, which had failed to stop at a stop sign.”
86 This is what was recorded in the Police Report, and I accept this is what occurred.
87 I accept that the impact was likely to have been substantial as the accident occurred in a 70-kilometre zone, and the other vehicle ended up on the opposite side of Dandenong Road across six lanes of traffic. The plaintiff said she was thrown to the right and was wearing a seatbelt over her left shoulder.
88 The Dandenong Hospital recorded the plaintiff’s complaints of left-sided pain to her neck, knee and ankle and right ribs.
89 The question of causation was considered by the TAC. The TAC sought a medical report from Mr Shannon for the purpose of determining liability for the cost of the plaintiff’s left shoulder surgery. He recorded that the plaintiff was a front-seat passenger and was hit from the left by another car.
90 Mr Shannon was provided with medical reports, the TAC Claim Form and TAC Clinical Panel Review Form dated 13 August 2009 and 3 October 2010, and the general practitioner’s records. From the TAC Clinical Panel Review, Mr Shannon was aware that his opinion was being sought in respect to causation. He was aware that the plaintiff had reported pre-existing symptoms to the left shoulder to her general practitioner. He said those symptoms did not appear to have been investigated or treated to any significant extent. Apart from the two attendances upon the plaintiff’s general practitioner in 1998 and 2001 in respect to the left shoulder, there was no other evidence of prior problems with her shoulder.
91 Mr Shannon concluded that the left shoulder pain may be linked to the transport accident. As a result, the TAC accepted liability. All other doctors accepted that the injury was caused by the transport accident. Accordingly, I am satisfied that the plaintiff suffered a compensable injury.
Pre-injury left shoulder pain
92 The general practitioner recorded complaints by the plaintiff of left shoulder pain in 1998 and 2001. The plaintiff could not recall making such complaints. In view of Mr Shannon’s comments about those complaints, I accept that at the time of the transport accident, the plaintiff was symptom-free in respect to her left shoulder.
Current medical evidence – The physical injury
93 In determining the plaintiff’s impairment, I must make the assessment as at the date of hearing. Accordingly, I will be assisted by the more recent medical opinions in this case, the reports of Dr Yiap, Dr C Thomas, Dr Serry and Mr King.
94 The medical evidence is that the plaintiff was treated conservatively by way of physiotherapy and cortisone injections before she underwent surgery in February 2011. She commenced physiotherapy. Her range of movement improved, then reduced to about 90 degrees, consistent with a frozen shoulder. The plaintiff was referred back to Mr Nguyen, who recommended further hydrodilatation, which was performed in October 2011, resulting in some improvement with abduction. In July 2013, Mr Nguyen sought approval for further injection of steroid to the left shoulder under ultrasound control, which was performed in August 2013.
95 In January 2012, Mr Dickens accepted the plaintiff had a rotator cuff tear which was giving her ongoing symptoms that were likely to continue.
96 In December 2013, Mr King reported that the plaintiff complained of constant aching pain, stiffness and weakness in the left shoulder, always present, varying from moderate to severe in intensity, aggravated by the use of the left arm and disturbing her sleep at night.
97 On examination, he said the plaintiff had the classic signs of a chronic rotator cuff injury of mild to moderate severity with mild limitation of glenohumeral and combined movement in the left shoulder. He reviewed the MRI scan report dated 8 July 2013 and was of the view that the chances of scarring and fibrosis throughout the rotator cuff of the left shoulder joint was consistent with both the after-effects of significant initial trauma and inevitable side effects of extensive surgical exploration and scattered tears of various tears of the rotator cuff. He said the MRI scans show a significant abnormal rotator cuff of tendons and ligaments in the left shoulder consistent with her history and clinical findings. It was his opinion that the plaintiff had been left with chronic impairment of movement in the left shoulder, both glenohumeral and combined movement, aggravated by the movement of the arm.
98 In February 2014, Dr Thomas said the plaintiff reported her left arm as useless. She reported difficulty washing herself when she showers and difficulty carrying objects with the left arm. Wasting and range of movement was limited and he noted overlay. Because the plaintiff did not co-operate fully in the examination, he was more reliant on his previous examinations. Dr Thomas said the MRI scan of July 2013 was consistent with the history and the plaintiff’s complaints relating to the shoulder. He accepted that the shoulder itself would be weak due to the degenerative change in the glenohumeral joint and a small subacromial effusion. He thought it likely that the plaintiff had some tearing of the left supraspinatus prior to the accident but subsequent to the accident, it became either symptomatic or larger.
99 In March 2014, the plaintiff’s general practitioner said he had not seen the plaintiff in respect to her left shoulder injury since October 2013. He reported that she had an injection of steroid and local anaesthetic into the left subacromial bursa on 1 August 2013. The plaintiff reported some relief from the injection, but intended to continue with physiotherapy. He concluded, from the lack of attendance in relation to her transport injury, that her condition is stable. He thought any deterioration would be age-related degenerative changes. She was seen in January 2014 for unrelated matters and was prescribed valium and other medications related to those health issues.
100 The plaintiff’s evidence was that she continued to suffer from left shoulder pain and stiffness. She has undergone cortisone injections administered by her general practitioner, which relieved the pain, but not for long. She said her general practitioner prescribes painkillers and anti-depressants. She takes Panadeine Forte when the left shoulder pain gets worse during the day. She estimates that she takes four to six Panadeine Forte tablets every one to three days. I accept that this is a slight exaggeration. The general practitioner’s notes do not record prescriptions for Panadeine Forte in the past few years, but rather prescriptions for Panadeine capulets, which are stronger than over-the-counter medication. I am not satisfied that she takes Panadeine Forte to the level she stated in her affidavit. Sometimes she takes over-the-counter Panamax or Panadol. To relax her shoulder, she takes valium, 5 milligrams, most mornings, and one tablet later in the day. She was an inpatient at The Alfred hospital in relation to her cancer condition. The hospital prescribed Endone for her left shoulder problem.
101 I accept that the plaintiff has a persisting organic problem which surgery has not resolved. On the evidence, it has improved the problem, but the plaintiff still has difficulties in the shoulder. Initially, there was improvement post-surgery, but that was followed by a deterioration that resulted in the plaintiff being referred back to Mr Nguyen for further treatment post-surgery by way of hydrodilatation. The medical evidence is that there is still an organic physical problem with the shoulder that requires intervention as a result of the transport accident.
102 I accept that as a consequence of the transport accident, the plaintiff suffers pain and stiffness in the left shoulder as a result of the physical injury.
103 I also accept that the plaintiff developed a mental response to the shoulder pain. Such a response would be an expected consequence of her shoulder injury. I rely upon the report of Dr Serry.
Consequences
104 The plaintiff’s evidence as to current treatment was limited. The medical records of the general practitioner confirmed that over the past twelve months, the plaintiff has consulted the practice on ten occasions related to the transport accident injury.
105 I accept the evidence that the plaintiff is taking prescription medication, Panamax and Panadol as required, and was prescribed Endone by The Alfred hospital. All medical witnesses accepted the plaintiff’s treatment was limited to consultations with her general practitioner, and injections of steroid under local anaesthetic as required. I accept that the level of treatment is a consequence I can take into account.
106 The plaintiff’s evidence is that she depends upon her daughter to perform domestic chores. Her daughter performs tasks including meal preparation, and cleaning the bathroom and kitchen, as the plaintiff has difficulty with activities that require the use of her arm above shoulder level. The plaintiff’s evidence was that her daughter fixes her hair and wig, which are awkward to do because of her left shoulder stiffness and pain. The plaintiff’s evidence was that friends from her community assist with showering, because she has great difficulty reaching up or across with her left shoulder. The affidavit sworn by the plaintiff's daughter, Hawani Haile Tola, confirmed the plaintiff’s evidence. I accept the plaintiff’s evidence that she is reliant upon her daughter in relation to her day-to-day living. I accept that is a significant consequence.
107 The plaintiff’s evidence was that she has had to withdraw from public activity with the Oromo community. Previously, she was a leader within the community and had been well-recognised for her involvement. She is no longer confident to lead her community, nor can she physically organise and get to meetings. This evidence was supported by her daughter, who confirmed that the plaintiff was a respected leader in the Oromo community. In addition, the Chairman of the South Eastern Region Melbourne Oromo Community Association in Victoria, Mr Tesfaye Wayessa, confirmed that the plaintiff had made an extensive contribution to volunteer work and support to the Oromo community, both in Australia and in the Oromo Region. He confirmed that the Oromo community was now assisting the plaintiff as a result of the transport accident. I accept that as a consequence of the left shoulder injury, the plaintiff’s involvement in the Oromo community as a contributor and leader has ceased. This is a consequence which I can take into account.
108 The plaintiff’s evidence was that she was reluctant to travel on public transport because of the fear of falling and inability to hold onto the railings because of lack of strength if she could not get a seat. Accordingly, she uses taxis, which is costly, and is not viable to get to and from her interpreting work. She derived enjoyment from that work and being of assistance to her community. I accept that is a consequence I can take into account.
109 In addition, the plaintiff described consequences of stress, anxiety, frustration and depression. I accept that those are consequences that I can take into consideration in accordance with Richards v Wylie.[18]
[18]Supra
110 As the plaintiff’s consequences have persisted for approximately six years and the majority of the medical evidence suggests no improvement in the future, in my view, her impairment is long term.
111 Taking all the evidence into account, namely her experience of constant pain, her surgery, the effect upon her involvement in her community and the domestic consequences, I am satisfied that the consequences to the plaintiff can be described as “more than significant” or “marked” and can fairly be described as “very considerable” when judged by a comparison with other cases in the range of possible impairments.
112 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to injuries sustained in the transport accident.
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