Greene v Transport Accident Commission
[2023] VCC 1876
•19 October 2023
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-02117
| KEVIN LESLIE GREENE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 4 and 5 October 2023 | |
DATE OF JUDGMENT: | 19 October 2023 | |
CASE MAY BE CITED AS: | Greene v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1876 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – s93 Transport Accident Act 1986 (Vic) – plaintiff having suffered several previous injuries – disabled from work for 15 years prior to transport accident – suffering from chronic pain syndrome – injury to left shoulder – increasing pain to some degree – alleged consequences for ability to engage in gainful employment, recreation and household activities not made out – consequences of injury not “very considerable”
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards & Anor v Wylie (2000) 1 VR 79; Bezzina v Phi & Transport Accident Commission [2012] VSCA 161; Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; Jovceva v Transport Accident Commission [2019] VSCA 105; Bezzina v Phi & Transport Accident Commission [2011] VCC 423
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett KC with Mr G Pierorazio | Maddens Lawyers |
| For the Defendant | Mr R H Stanley with Mr T Storey | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1On 2 October 2015, Mr Greene was driving his car along Viaduct Road, Warrnambool:
“when another driver reversed her vehicle from an angled parking space on the right hand side of the road, then drove forward into the path of [Mr Greene’s] vehicle and as a result [his] vehicle struck her vehicle”. (Plaintiff’s Court Book “PCB” 8, [18])
2According to Mr Greene’s affidavit, as a result of the impact he:
“hit [his] head on the roof of [his] vehicle, [his] head was thrown forward into the steering wheel (to the extent that the steering wheel was bent), [his] head was then thrown backwards, [he] was thrown from side to side, and then was unconscious for a period of time”. (Ibid, [19])
3Mr Greene seeks a determination under s93 of the Transport Accident Act 1986, that he has suffered a serious injury in that transport accident and that he be granted leave to commence a claim for damages. He relies solely upon paragraph (a) of the definition of “serious injury” to be found in s93 (Transcript “T” 1, Line “L” 13).
4Mr Greene says he suffered the following injuries:
(a) a closed head injury;
(b) an injury to the neck;
(c) migraines;
(d) an injury to the left shoulder;
(e) an injury to the right shoulder;
(f) psychological reaction to trauma (PCB 9, [22])
5For the purposes of the present application, he relies upon the left shoulder as the body part said to be affected by the “serious injury”, though his counsel say he suffered injuries to both shoulders (T1, L13-18).
6Mr Greene was born in 1956 and hence was aged 58 at the time of the transport accident. As will appear, he has a relatively long history of injuries which complicate the assessment of his injuries in the transport accident in 2015 and their consequences for the purposes of s93.
7Following the accident, Mr Greene was taken by ambulance to the Accident and Emergency Department of the Warrnambool Base Hospital (PCB 10, [28]). Mr Greene was treated by a long list of medical practitioners relative to his 2015 injury, most notably by surgeon, Mr Arogundade, who conducted surgery on his left shoulder in 2018 (PCB 10, [28]-[30]).
8Mr Greene has previously advised he suffered a series of prior injuries. He left school at the end of Form 3 and trained as a stonemason and bricklayer. He also qualified as a weaver. In 1988, he injured his back and, in 1991, his wrists and hands. He has not worked since 1991 and was, at the time of the 2015 transport accident, on a Disability Support Pension (T2, L1-10).
9According to an affidavit sworn 17 May 2023, despite Mr Greene’s previous injuries, he says that:
“prior to the motor vehicle accident, I was trying to get myself back on track and come off the Disability Pension. True enough there was no way that I was going to be able to get back to stonemason/bricklaying work although I got to the point where I had had enough. In this regard, I had mates who were all working and who had all purchased their own homes. My wife left me as I was not working and she thought I was lazy and wouldn’t go out with her.” (PCB 14, [7])
10He said that he might:
“get back into work on a farm milking cows, herding cows, drenching and de-licing. I thought that notwithstanding my injuries that I would be fit enough to get back into that type of work and I would also have been capable of riding a quad bike on a farm.” (Ibid, [8])
11He said that prior to the accident he was:
“trying to regain [his] fitness. [He] was walking a lot, using an exercise bike and generally feeling good about [himself]. [He] managed to get [his] weight down to about 100-105kg. [He] used to go down to the beach and walk in the water as a form of exercise.” (Ibid, [10])
12He owned two motorbikes and said that “[f]requently on weekends I would ride with mates to Hamilton, have lunch there at the pub and ride back.” (Ibid, [11]) He “would have to pull over every half an hour or so because of pain” (Ibid) deriving from his previous injury but, nevertheless, was able to participate in this activity.
13He said he was able to swim freestyle and do basic home duties such as vacuuming, and could carry out certain welding operations for the repair of neighbourhood fences. He used to drive a car and trailer around and collect wrecks (PCB 14, [12]-[15]).
14Now, he says that he is restricted in terms of home duties and has sought assistance from the defendant, the Transport Accident Commission (“TAC”), in that regard. He continued:
“It is difficult, however, to get cleaners out to where I live as I am too far out of town. I am fortunate to have a lady next door who comes and cleans my bathroom every now and again.” (PCB 16, [27])
15He is unable to carry out welding and assist his neighbour with his fences because he will have difficulty “dragging the welder along because of my shoulders” (Ibid, [28]). He said he would have difficult wearing a welding mask “because of my neck” (Ibid). He “simply would have difficulty supporting the weight on [his] head” (Ibid), and therefore has not welded for the last six or seven years. Nor is he capable of collecting old wrecks anymore with his car trailer “because of the pain in [his] shoulders and the pain in [his] neck” (Ibid, [29]). He said:
“I have been reliant on painkillers such as Tramadol for the last 2 years or so predominantly for the pain in my shoulders and the pain in my neck. I take these most days, on average 2 a day. These have side effects including making me feel a bit dopey. Nor can I drink alcohol when I take Tramadol.” (Ibid, [31])
16He said he has to take Panamax for headaches. He complained about not getting a good night’s sleep, saying:
“At least before the motor vehicle accident, I was able to sleep on my sides more than I can now. These days invariably I will try and sleep on my back. I have bought special pillows which are flat as I cannot have my neck up too high when I am trying to sleep.” (Ibid, [33])
17As a consequence of these matters, he said “[t]hese days I am a lot less active [than I used to be] and spend a lot of time simply watching the television.” (Ibid, [30]
18As to migraines, Mr Greene says:
“When I have migraines I am basically unable to do anything and I must lock myself away in a darkened room until they pass. I live in constant fear of another migraine coming on”. (PCB 11, [38])
19He said “[t]he pain and limitation of movement in my shoulders means that I can't lift things of any weight, or undertake activities that involve a full range of movement” (Ibid, [40]).
20He said he no longer drives long distances but pulls over “every 20 minutes to half an hour to relax because of the pain in my neck and shoulders and my fear of bringing on a migraine” (Ibid, [41]).
21He said he has sold his motorcycles “because the bike helmet felt too heavy on my head when I rode, and I now no longer ride” (Ibid, [42]).
22He said he has become cut off from his friends and acquaintances:
“This is in part because my physical injuries limit in what I can do with them and in part because my depressive condition makes me not want to be with people, and in part because I become angry and frustrated with them for no real reason. I think that they are enjoying life while I am not. I also suffer from anxiety attacks”. (Ibid, [43])
Legal considerations
23The Transport Accident Act establishes a regime whereby there is a general compensation scheme for persons injured in transport accidents in Victoria without proof of fault. Correspondingly, however, the Act restricts the entitlement which an injured person might otherwise have to claim damages for negligence. Section 93(1) excludes damages claims except in accordance with the provisions of the section. Sub-section (2) allows a person injured in a transport accident to recover damages in respect of the injury if the injury is “a serious injury”. Sub-section (17) defines serious injury as follows:
“‘serious injury’ means—
(a) serious long-term impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c)severe long-term mental or severe long-term behavioural disturbance or disorder; or
(d) loss of a foetus.”
24Sub-section (3) provides that an injury is to be deemed a serious injury if, in accordance with the permanent impairment provisions of the Act, ss46A, 47(7) or 47(7A), the degree is determined to be 30 per cent or more. Where no such determination of impairment of 30 per cent or less has been made, the damages claim may only be brought if a court gives leave in accordance with ss(4). This requires the application of the definition of “serious injury” quoted above. This is commonly referred to as the “narrative” test.
25In the present proceeding, the plaintiff relies solely on paragraph (a) of the definition. The classic exposition of the operation of the definition of “serious injury” which applies in this case is to be found in the joint judgment of Crockett and Southwell JJ in Humphries & Anor v Poljak [1992] 2 VR 129. Their Honours said:
“ … we think that the task of a judge confronted with the requirement to determine an application made pursuant to sub-s. (4)(d) when reliance is placed upon sub-s. (17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. 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"? Beyond such guidance it is, we think, not possible to go.” ([1992] 2 VR 129, 140)
26Complications arise where, in the context of an application for leave based on paragraph (a) of the definition, elements of psychological or psychiatric impairment are in play. In Richards & Anor v Wylie (2000) 1 VR 79 the plaintiff had suffered whiplash injuries with pain and stiffness in the neck, shoulders and arms and certain other physical symptoms. The medical evidence indicated that these symptoms could not be organically accounted for and that they seemed to have been produced by psychological factors. The trial judge accepted that the plaintiff had suffered a serious injury for the purposes of paragraph (a) of the definition based upon the physical symptoms despite the evidence that they were non-organically generated. The Court of Appeal, Winneke P, Buchanan and Chernov JJA set aside the grant of leave. Chernov JA said that:
“It is likely that in many cases the injuries caused by a transport accident will have physical as well as mental consequences for the plaintiff, with the result that it may appear that either definition could be appropriately applied in determining whether the relevant injury is a "serious" one. In such circumstances, which test is appropriate will fall to be determined by the consideration of what is the dominant cause of the plaintiff's condition. Is it predominantly the result of the physical injuries arising from the accident, or is the dominant cause of the condition the mental and psychological factors flowing from the accident? But whichever test is to be applied, in determining if its requirements have been satisfied, all the relevant consequences for the plaintiff arising from the accident are to be considered. Thus, if it is decided that, in a given case, the test in para (a) is appropriate because the plaintiff's relevant condition has been brought about predominantly by the relevant physical injuries, in deciding whether the relevant impairment is serious and long term, regard is to be had not only to the physical cause of the impairment, but also to any mental or behavioural disturbances flowing from the physical injury, such as "functional overlay" to which the President refers in his judgment.” ((2000) 1 VR 79, 90)
27His Honour continued, stating that, where the dominant cause was psychological, then the application for leave should be determined under paragraph (c) of the definition. In broad terms, therefore, paragraph (a) is concerned with the consequences of organic injury and paragraph (c) is concerned with injuries which are psychologically or psychiatrically driven. However, in considering the application of the definition in paragraph (a) to physical injury, one considers not only the organic consequences but, in his Honour’s words, “any mental or behavioural disturbances flowing from the physical injury, such as ‘functional overlay’”.
28In this proceeding, a major strand of the TAC case is that an affidavit or affidavits of Mr Greene and the histories which he gave examining and treating practitioners relative to earlier compensable injuries, demonstrate that some or all of the pain and restrictions which he complains of and attributes to the 2015 transport accident afflicted him before that transport accident. Without necessarily accepting that Mr Greene is in fact subject to the pain and restrictions which he attributes to the transport accident, the TAC, through its counsel, contend that, if in fact he is subject to those pain and restrictions, he was already subject to them before the transport accident. They relied upon a decision of the Court of Appeal, Bezzina v Phi & Transport Accident Commission [2012] VSCA 161. In that case, an unsuccessful applicant for a finding of serious injury challenged his adverse determination in the Court of the Appeal. One of the grounds on which the appellant challenged the primary judge’s determination against him, was in claiming that her Honour viewed and analysed the matter “through the prism of a pre-existing lumbar spine impairment”. In rejecting this ground, the court, consisting of Harper JA and Beach AJA (as he then was) said:
“There is nothing in this submission. In assessing whether each claimed serious injury satisfied the ‘very considerable’ test, her Honour was required to examine the impact of the injury on the applicant as a whole. Far from her Honour’s approach being erroneous, her Honour was bound, when examining the consequences of the claimed serious injury, to look at how they affected the applicant as he was and would likely have been absent the injuries he sustained in the transport accident. This included looking at and considering the effect (and likely effect in the future) of the applicant’s pre-existing injuries. To the extent that the evidence was said to be so sparse as to impede the judge in that task (a matter about which we are far from persuaded in any event), the responsibility lies with the applicant or his legal advisors. We note in this context that when her Honour said, during the course of the hearing, that she ‘had to look at … what his level of functioning in total was just before the transport accident and what worsening on a long term basis has been brought about by the injuries suffered in the motor accident’, senior counsel for the applicant did not raise any objection.” (Ibid, paragraph 23)
Expert opinions
29The TAC has placed substantial reliance on a large number of medical reports given by treaters and medico-legal assessors relative to earlier injuries. In this section, I deal only with the expert opinions expressed relative to Mr Greene’s injury or injuries said to derive from the transport accident.
30Mr Greene underwent physiotherapy treatment from Mr Tony Pritchard of South Western Physiotherapy Clinic. Mr Pritchard furnished a manuscript report dated 16 August 2017 which refers to Mr Greens suffering chronic pain/stiffness neck and shoulders, which Mr Pritchard was “trying to free these up”. He recorded that Mr Greene was “doing stretching and gentle strengthening [exercises]”. He suggested ultrasounds to both shoulders. Mr Pritchard concluded “he’s also quite tender over the sternum and just to the left since being hit with a chain by his son, but he seems to have no breathing difficulties.” (PCB 18)
31Mr Pritchard noted that:
“The shoulders were also markedly restricted due to pain > stiffness, viz., standing Abductions to 80° and Flexions to 90°, with a little more range with passive supine testing. The shoulders were also generally tender. Resisted shoulder testing revealed about 2/5 strengths bilaterally. Cervical CT Scan and MRI revealed multilevel disc and facet joint degeneration with some neural compromise, and degenerative instability at the C4/5 and C7/T1 levels.” (PCB 30-31)
32Mr Pritchard concluded:
“It seems Kevin suffered a severe Cervico-Thoracic sprain/strain and bilateral Rotator Cuff dysfunction (strains) following his MVA in 2015. It may be possible that he had some Rotator Cuff dysfunction prior to the accident due to his strenuous previous employment as a Bricklayer. He has a long history of migraine headaches which have worsened since the accident.” (PCB 31)
33Dr Ramu, a treating general practitioner, provided a medical report to orthopaedic surgeon, Mr Kunle Arogundade, who it will be recalled carried out surgery on Mr Greene’s left shoulder in 2018. The letter was in the form of a referral to Mr Arogundade and began:
“Thank you for seeing Kevin for opinion and management. Kevin presented today with h/o MVA happened in 2015 and injured both shoulder (sic). Currently he is c/o increasing pain on both shoulders. Had corticosteroid injection on both shoulders in the past and no surgeries.” (PCB 19)
34The referral included a list of medications and a medical history going back to August 2015. It included a report of an x-ray conducted on 1 August 2017 of the left shoulder, which referred to a history of “2 years shoulder pain? OA. Limited abduction.” The findings were “[t]he humeral head is normally enlocated. The glenohumeral joint appears normal. There is moderate degenerative change in the AC joint. No soft tissue calcification is identified.” (PCB 21)
35An ultrasound of both shoulders found relative to the left shoulder:
“There is thickening of the supraspinatus tendon with slight heterogeneity most in keeping with tendinosis. A small partial thickness tear is likely measuring about 8 x 10mm in the supraspinatus tendon. No full thickness tear or retraction of fibres is noted. The subscapularis and infraspinatus tendons are intact. The biceps tendon is also intact and no fluid is seen in the biceps tendon sheath.
There is thickening of the subacromial/subdeltoid bursa with painful bunching on abduction consistent with bursitis.” (PCB 22)
36This ultrasound was conducted 1 September 2017 and “signed off” on 4 September 2017.
37There was also a report of a further left shoulder ultrasound and “guided injection” conducted on 21 September 2017, which reported:
“Ultrasound revealed a thickened subacromial/subdeltoid bursa which was injected with a mixture containing 1cc Celestone and about 3cc of 0.5% Bupivacaine. No immediate post procedural complications were noted.” (PCB 23)
38A further report of an ultrasound and guided injection to the right shoulder was included and dated 11 January 2018, (PCB 24) with a similar procedure to the left shoulder reported 13 February 2018, noting:
“Ultrasound revealed a partial thickness tear of the supraspinatus tendon measuring about 10mm. No retraction of fibres was seen. The rest of the rotator cuff tendons are intact.” (PCB 25)
39Operating surgeon, Mr Arogundade furnished an “Operation Record” relative to a procedure carried out 21 June 2018 on the left shoulder. Under the heading “FINDINGS” appeared the words:
“2CM FULL THICKNESS TRANSVERSE INSERTIONAL TEAR, AND TENDINOSIS SUPRASPINATUS, LEFT SHOULDER
DELAMINATION TEAR SUBSCAPULARIS, THOUGH INTACT INSERTION
INFLAMMED UNSTABLE TORN LHB. TYPE 2 SLAP TEAR
DEGENERATIVE LABRAL TEAR
MODERATELY SEVERE SYNOVITIS SHOULDER JOINT
MODERATELY SEVERE SUBACROMIAL BURSA THICKENING,
TYPE 2 ACROMIUM
GRADE 1 CHIONDRAL (sic) FISSURE GLENOID ARTICULAR CARTILAGE” (PCB 27)40Mr Arogundade furnished a report dated 25 February 2019 to Mr Greene’s solicitor stating inter alia:
“| performed left shoulder arthroscopy, subacromial decompression, acromioplasty and mini open repair of supraspinatus tendon on 21st June, 2018 at St John of God Hospital Warrnambool. Operative finding: 2cmfull thickness transverse insertional tear and tendinosis of supraspinatus tendon, delamination tear subscapularis, though intact insertion, synovitic, unstable, torn long head of bicep, also Type 2 SLAP tear degenerative labrum tear, moderately severe synovitis shoulder joint, moderately severe subacromial bursa thickening. (PCB 28)
41Mr Arogundade reported reviewing Mr Greene and finding:
“He was doing great, he was much improved, minimal pain except ache in his bicep, he was asked to continue physiotherapy with Mr. Tony Pritchard. Clinical examination left shoulder demonstrated healed surgical wound, shoulder was non tender, decreased range of shoulder motion (expected). I advised continued physiotherapy: range of motion, periscapular and rotator cuff strength exercises. He was booked in to see me 2 months later, also awaiting approval for right shoulder surgery. TAC eventually declined approval for right shoulder surgery.” (PCB 29)
42He noted that Mr Greene had not returned for a further follow-up appointment since the last consultation, stating:
“Diagnosis: supraspinatus insertional tear left shoulder, acromioclavicular joint arthritis left and right shoulder, impingement syndrome.” (Ibid)
43Mr Arogundade attributed the shoulder injuries to the “motor car accident [Mr Greene] sustained in 2015”. (Ibid)
44Mr Arogundade reported on that surgery to Dr Richardson in a letter dated 15 September 2020, noting that the surgery was performed under general anaesthetic. Mr Arogundade described the surgery as being “subacromial decompression and bursectomy” (PCB 39). He stated:
“Operation finding: partial delamination articular sided tear involving supraspinatus tendon less than 30% width, longitudinal tear subscapularis tendon, though intact insertion tendinopathy all rotator cuff tendons, especially supraspinatus tendons, extensive labrum tear. Type 2 SLAP tear with synovitic long head of bicep, moderately severe subacromial bursa thickening, thickened coracoacromial ligament, Type 2 acromium, moderate synovitis. I debrided synovitis and degenerative labrum tear, performed long head of bicep tenotomy, debrided tendinopathic partial articular sided tear supraspinatus tendon. Subacromial space accessed via posterior viewing and lateral working portals, bursectomy and decompression performed, acromioplasty also performed. I debrided and excised inferior impinging osteophytes from acromioclavicular joint, especially the clavicular end.” (Ibid)
45Dr Sue Richardson of WRAD Services provided a report dated 23 April 2019 to Mr Greene’s solicitors. She recited the occurrence of the transport accident and various attendances and treatments. She noted that physiotherapist, Mr Pritchard, had requested ultrasounds of both shoulders to aid in his management of Mr Greene’s problems. Dr Richardson continued:
“On 16 August 2017 Physiotherapist, Tony Pritchard requested ultrasounds of both shoulders to aid in his management. The scan of the left shoulder showed supraspinatus tendon and muscle damage further to the bursopathy noted in 2015. The right shoulder showed similar problems as reported below:” (PCB 33)
46The doctor concluded:
“In summary - Mr Greene suffers with headaches which preceded the MVA. I cannot say whether the accident and apparent whiplash have increased his headache frequency. He also suffers with right arm and chest wall pain referrable to the radiculopathy.
…
He also has shoulder pain. The tears in the rotator cuff were not demonstrated at the ultrasound performed 5 days after the accident.” (Ibid)
47The doctor’s report included the findings of a lengthy number of investigations over the period from 2015 onwards. These are the same investigations which were reported on in Dr Ramu’s referral to Mr Arogundade.
48Mr Greene was sent to Dr David Kennedy, a sports and industrial physician, for medico-legal assessment at the request of his solicitors, reporting in a letter dated 26 November 2019 upon an assessment conducted on 20 November that year. Dr Kennedy sought to review Mr Greene’s previous medical history as follows:
“Mr Greene has suffered from migraine headaches for many years. He also has had episodes of gout. He was diagnosed with colon cancer in 2015 and he has undergone surgery for the cancer. Mr Greene also has hypertension and depression for which he takes medication. Mr Greene had bilateral bunion surgery in November 2016. Mr Greene has also undergone bilateral carpal tunnel surgical release procedures, three on the right and two on the left, as well as ulnar nerve transposition procedures, three on the right and two on the left, for elbow joint problems” (PCB 41)
49The doctor also noted that prior to the transport accident, Mr Greene denied “any previous history of neck or back injuries or problems.” (Ibid)
50Dr Kennedy was briefed with a range of ultrasounds, x-rays and MRIs though not including the ultrasound of the left shoulder conducted a few days after the transport accident in October 2015.
51Dr Kennedy concluded that Mr Greene referred to various spinal injuries and aggravations which he found were sustained by reason of the transport accident and continued:
“Mr Greene also sustained significant injuries to both shoulder joints, with damage involving the AC joints, as well as the rotator cuff mechanism in the subacromial-subdeltoid space.” (PCB 45)
52Dr Kennedy concluded:
“The injuries to both shoulder joints are quite extensive involving the myofascial structures supporting the shoulder joints and particularly the rotator cuff mechanism bilaterally and, despite undergoing surgery on the left shoulder joint, Mr Greene continues to have significant problems with pain and restricted movements both in the left shoulder joint and ongoing problems of pain and restricted movements in the right shoulder joint.” (PCB 46)
53Orthopaedic surgeon, Mr Stephen Doig, assessed Mr Greene for medico-legal purposes at the request of Mr Greene’s solicitors. Mr Doig was furnished with a larger range of x-rays and scans going back to October 1995. This included the ultrasound of Mr Greene’s left shoulder conducted in 2015 (PCB 48).
54Mr Doig took a history of multiple operations on Mr Greene dating back to 1991, noting, however, that “Mr Greene stated that he had a chronic low back pain beforehand, but that his neck and shoulders were alright.” (PCB 50)
55Mr Doig raised issues on that point based on a report furnished by Dr Terence Saxby, noting Mr Greene’s response was “that he did not have troubles with his neck, although he said that he may have had some problems as far as his shoulders were concerned.” (Ibid)
56Mr Doig noted:
“Examination of the left shoulder reveals that he has flexion to 145, extension to 40, abduction to 140, adduction to 35, ER to 75 and IR to 80. There are scars that are consistent with the arthroscopy present. There is no evidence of an impingement syndrome and no evidence of a painful arc. There is no crepitus in the subacromial space and he is not particularly tender over the subacromial space.” (Ibid)
57Mr Doig said:
“The results of the examination of his left shoulder indicate that he has a restriction in range of movement, with evidence of the arthroscopic portals. Once again, without having access to the previous assessment of his shoulder prior to the motor vehicle accident, I am unable to apportion what has happened as far as the left shoulder is concerned.” (PCB 51)
58Mr Doig gave a supplementary report by way of letter to the solicitors dated 5 January 2023, having been provided with over 20 reports from a variety of practitioners relative to Mr Greene’s various injuries and compensation applications going back to January 1994 (PCB 54-55). A large number of the further historical reports provided to Mr Doig related to the condition, at relevant times, of Mr Greene’s neck.
59As to the shoulder, Mr Doig noted a report by Mr David Brownbill of 17 June 1994, referring to “pain in the left shoulder and the neck … [but] a full range of movement of the cervical spine as well.” A report from Dr James Rowe dated 28 April 1995 “indicating that [Mr Greene] had a left rotator cuff tendinitis in the left shoulder”. He also noted the report by Dr William G.C. Maling of 20 April 1995, indicating that “there was a loss of range of movement … in the left shoulder, and … according to the AMA 2nd Edition Guides … an impairment of 6% of the upper limb for the left shoulder.” (PCB 55)
60Mr Doig concluded:
“As far as Mr Greene's left shoulder is concerned, once again there is evidence that he did have some problems as far as the left shoulder was concerned. However, there was a report from Dr Mary Wyatt dated 14 November 2008 which indicates that the left shoulder had a minimal restriction in abduction of 140° and there was a further report from Dr Warren Kemp dated 29 March 2006 as far as the left shoulder was concerned, which indicated that there was no restriction in range of the movement of the left shoulder. Thus, although he may have had some problems with the left shoulder, the latest reports from then indicate that the left shoulder was not significantly restricted in his range of movement and therefore apportionment for the left shoulder is not appropriate.” (PCB 56)
61Mr Greene was assessed for medico-legal purposes at the request of the TAC by neurologist, Dr David Szmulewicz, who furnished his report to the TAC by letter dated 2 December 2021, the same date as the consultation. The doctor was provided with a wide range of medical reports on Mr Greene’s condition dating back to 1994. He was also provided with a wide range of x-rays and scans, including the ultrasound carried out on the left shoulder and dated 7 October 2015. The doctor observed:
“Mr Greene's gait was normal. Examination of the upper limbs did not reveal any muscle atrophy. Tone and power were normal bilaterally. Reflexes were as follows; triceps jerk absent on the right with reinforcement and present on the left with reinforcement, biceps jerks present bilaterally with reinforcement, brachioradialis jerks absent with reinforcement bilaterally, wrist flexor jerks 1+ normal bilaterally. Perception of sensation was preserved throughout the arms.” (Defendant’s Court Book “DCB” 10)
62The doctor said:
“Mr Greene stated that he can walk for eight minutes using a single point stick prior to exacerbating pre-existing knee pain, climb two flights of stairs prior to a sensation of heaviness in the head, stand for approximately one minute (he was uncertain why this is limited) and sitting was limited only with regard to driving, when he takes a break to get out of the vehicle each 20 to 30 minutes stating that he feels too big for the car.” (DCB 9)
63As to domestic activities, according to the doctor:
“Mr Greene stated that he cannot cook and so eats at the pub and has gardeners and home help assist, including cleaners fortnightly.” (Ibid)
64The doctor noted some nine questions posed by the TAC which he set out at the conclusion of his report with the observation “[f]or all questions below, please see the body of my report above.” (DCB 13)
65With all due respect to the doctor, I am unable to detect in the body of his report the response to question 1 posed by the TAC “Your opinion in relation to a diagnosis of any injuries the client sustained and the relationship of those injuries to the transport accident.” (Ibid)
66Dr Terence Saxby described as “consultant orthopaedic surgeon” assessed Mr Greene on 2 February 2022, and he responded by letter to the TAC dated 16 February 2022 (DCB 14).
67Dr Saxby was provided with a range of medical reports on Mr Greene dating back to 1994, but there is nothing in his report to indicate that he had a report from Mr Arogundade, the surgeon who operated on Mr Greene’s left shoulder in 2018, or any of the scans and x-rays had been made available to various examiners including Mr Doig and Dr Szmulewicz (DCB 16).
68Dr Saxby observed “No investigations were available to review. There is no imaging report in the file.” (DCB 19)
69Dr Saxby said that the condition of Mr Greene’s neck and shoulders was “fairly static at the present time.” (DCB 20) He concluded that there was “soft tissue injury to both shoulders” resulting from the transport accident (DCB 21). On examination, he found “mild restriction of shoulder motion bilaterally”. (Ibid)
70The TAC also had consultant psychiatrist, Associate Professor Peter J Doherty conduct a medico-legal assessment of Mr Greene’s psychiatric condition on 12 July this year. Associate Professor Doherty responded to the TAC in a report by way of letter dated 15 August 2023. Associate Professor Doherty concluded that Mr Greene suffered from a “diagnosable depressive disorder … at the date of the transport accident.” (DCB 38)
71He said:
“There is , however, not a diagnosable PTSD condition currently present. He was diagnosed in December 2014 by the general practitioner as being depressed, getting anxious easily , and angry, and it is notable that he was diagnosed a few months before the subject transport accident as having cancer of the sigmoid colon, requiring surgical intervention.” (Ibid)
72Associate Professor Doherty concluded:
“there was an aggravation of the pre-existing depressive condition, and there is not PTSD, pain-related, or cognitive-related psychiatric condition due to the transport accident.” (Ibid)
73Finally, the TAC had Mr Greene assessed for medico-legal purposes by Mr Michael J Dooley, orthopaedic surgeon, on 23 August 2023. Mr Dooley provided a report on that assessment to the TAC by letter dated 30 August 2023.
74Mr Dooley diagnosed, aside from neck issues, “[a] possible soft tissue injury to the left shoulder” (DCB 47), as a result of the transport accident. Mr Dooley said:
“There were no radiological images available to view. In the attached documentation, it is stated that MRI scanning of the cervical spine on 24 March 2017 notes multilevel degeneration and no evidence of major disc prolapse or spinal cord compression.” (Ibid)
75He referred to the ultrasounds of the left shoulder conducted respectively in October 2015 and September 2017 (Ibid). Mr Dooley observed:
“Mr Greene was noted to complain of some left shoulder pain after the motor vehicle accident. It is possible impact occurred to the left shoulder area when Mr Greene was thrown upwards and forwards. This could result in some subcutaneous or muscular bruising. Seatbelt activation can result in subcutaneous and muscular bruising and abrasion to the region of the chest and abdomen. Overall, on the balance of probabilities, I believe it is unlikely that any injury occurred to the rotator cuff region of the left shoulder. I accept that this is a possibility. Mr Greene said that he felt a crunching sensation in what he thought was the shoulder blade region on both sides at the time of the motor vehicle accident. On balance, I believe that this sensation would relate to a musculoligamentous strain type injury to the cervical spine, rather than to any injury to the glenohumeral joints or rotator cuff region. In time, Mr Greene complained of ongoing pain in his left shoulder. For a period after the accident he was complaining of pain radiating down his right upper limb. Radiological investigation of his shoulders revealed, what l believe is, naturally occurring and age-related degenerative rotator cuff change. As usually is the case, this affects mainly the supraspinatus tendon. Secondary to degeneration, partial thickness tearing occurs. Similarly, the very large majority of middle aged patients are reported to have some thickening of the subacromial bursa when they undergo ultrasound assessment. I do not believe that the motor vehicle accident resulted in injury to either rotator cuff region in the motor vehicle accident. Mr Greene has subsequently undergone subacromial decompression surgery to both shoulders sequentially in time. He reports that this helped him "a little". From an orthopaedic point of view, no specific ongoing treatment is required in this regard.” (DCB 48)
76Mr Dooley said “I have read the enclosed medical reports of Dr Saxby and Dr Doig. These reports do not cause me to alter the opinions I have expressed in my report.” (DCB 50)
Conclusions
77The initial question which arises is one of causation.
78The findings made by operating surgeon, Mr Arogundade in 2018 are indicative of significant damage to the left shoulder. The September 2017 ultrasound of the left shoulder may be thought consistent with Mr Arogundade’s findings albeit that the latter seem far more significant. The October 2015 ultrasound, however, shows no significant findings for a man in his late fifties who has undertaken hard, physical labour. No event or trauma has been identified in the period October 2015 and September 2017, which would account for the worsened condition of the shoulder. Such an event would, in the nature of things, be peculiarly within the knowledge of Mr Greene and not of the TAC.
79Nevertheless, it was not put to him in cross-examination that there was some undisclosed traumatic event accounting for the recorded deterioration of the condition of his left shoulder between October 2015 and September 2017.
80Mr Brett KC, in re-examination, asked “During that period of time were you experiencing shoulder pain?” Mr Greene replied “Yes” (T85, L11 and 12).
81One may infer that if there were significant contemporary documentation of complaints in this regard, Mr Greene would have been taken to them at this point in his re-examination, but matters were left there.
82In closing address, Mr Brett KC referred me to a clinical note taken by Dr Dishari Sarkar, at a consultation with Mr Greene on 15 November 2016, where the doctor records “Requires referral for physiotherapy for ongoing neck/shoulder injury … Shoulder since accident” (DCB 300).
83One might also note the record of findings made on an x-ray of Mr Greene’s left shoulder “2 years shoulder pain, ? …”, albeit that this note taken on 1 August 2017 is ex post facto and followed by a question mark, it provides some corroboration for the generalised evidence in the examination by Mr Greene that he did suffer left shoulder pain in this period 2015-2017.
84No medical expert on the TAC’s side, except perhaps Mr Dooley, was prepared to make a distinct finding excluding the 2015 transport accident as causal of whatever the left shoulder problem is or was at the time of the surgery in 2018.
85In those circumstances, I believe I should put aside any thought that the state of the shoulder in 2018 or now is attributable to some undisclosed event in the period 2015 to 2017.
86A related though distinct causation issue arises out of the multiplicity of injuries and complaints of injury which Mr Greene suffered made in the period 1991-2015. The TAC referred to and relied upon a large volume of medical reports and assessments in that period where, whilst the emphasis was on injuries to other parts of the body, there were distinct complaints about pain and restrictions to the left shoulder.
87In particular, occupational physician, Dr Mary Wyatt, who assessed Mr Greene at the request of the relevant WorkCover assessor on 11 November 2008. In her report by way of letter to the insurer dated 14 November 2008, she observed:
“Mr Greene advises continued pain in his neck, back and shoulders, continued pain in his hands and wrists, and continued bother with his knees. He advises being ‘full of arthritis’.” (PCB 121)
88These sorts of findings, of which there are many, give the lie to generalised statements by Mr Greene that he had had either no or only minimal shoulder problems before the 2015 transport accident.
89Dr Wyatt, in her section on “Examination”, did not make separate mention of either the left or right shoulder. (PCB 121). Upon carrying out an impairment assessment in accordance with the 2nd Edition of the AMA Guides, Dr Wyatt found no restriction of the left shoulder save as to abduction, which was limited to 140 degrees. This equated to a 1 per cent impairment of the left upper extremity.
90These considerations lead to a finding on the balance of probabilities that Mr Greene suffered an exacerbation of pre-existing degenerative changes in his left shoulder in the transport accident of 2015; more serious than a mere “soft tissue” injury as diagnosed by Mr Dooley.
91Turning then from those causation issues, we ask “What then are the consequences of the injury?” At the outset we can put aside any consequences as to Mr Greene’s employment prospects. In 2015, he had already been out of the workforce for decades and was at an age when even the able-bodied are seeking retirement from occupations involving physical labour.
92In an affidavit Mr Greene suggested, however, that immediately prior to his injury he was contemplating and preparing for an attempt to re-join the workforce, doing work involving the herding of cattle (PCB 14). Given his unhappy medical and surgical history, this seems to have more than a degree of unreality to it. The medical practitioner clinical notes make repeated reference to problems Mr Greene suffers from “bunions”.
93More particularly, on 2 June 2015, Dr Sarkar of WRAD viz Western Region Alcohol Drug Centre, wrote to surgeon, Mr Brendan Mooney, by way of referral for Mr Greene, stating:
“Thank you for seeing Kevin. He has been suffering from painful lump in the planter surface of the right foot for 12 months. He was seen by a podiatrist and an USG was done. USG report is suggestive of chronic granuloma may be due to foreign body which can be confirmed by surgical excision. It would be appreciated if you could see him and give your valuable opinion.” (DCB 68)
94On 15 February the following year, Dr Sarkar made a referral of Mr Greene to Mr Arogundade, this time with reference to “persistent pain in right 2nd, 3rd and 4th toes and unable to walk properly because of pain. There are flexor deformities in 2nd, 3rd and 4th interphalageal joints.” (DCB 70)
95Mr Mooney reported in a letter dated 17 June 2015, that is before the transport accident, advising Dr Sarkar that Mr Greene had “a painful little lump on the sole of his right forefoot.” (DCB 73)
96On 4 March 2016, Mr Arogundade reported to Dr Sarkar that Mr Greene:
“now presents with clinical and radiographic diagnosis of mal union of bunionette, mallet 4th and 3rd toes and hammer 2nd toe right foot, also hallus rigidis with bunion. … He is booked for correction of bunionette, hammer and mallet toes right foot. I also discussed the risks and benefits of surgery.” (DCB 74)
97In a letter dated 21 December 2016, Mr Mitra of Southwest Orthopaedics, reported to Dr Sarkar:
“Kevin is four months following correction of a bunionette deformity and hammer toes of his right foot. His old symptoms have resolved. He however complains of increasing pain in his first MTP joint. Clinically he is tender over his plantar plate as well as the medial eminence. Forced dorsiflexion of his toe aggravates his pain.” (DCB 76)
98Mr Mitra observed “Kevin may be suffering from a turf toe injury.” (Ibid)
99Mr Mitra sent a further letter to Dr Sarkar, noting that it was six months after surgery on Mr Greene’s right foot. According to Mr Mitra:
“He has difficulty putting on normal footwear with pain over the great toe medial and plantar aspect as well as the PIP joint dorsal aspect of his second toe. He has tried footwear modification with limited success. His main problem is that he is not able to change the gears in his motorcycle.” (DCB 77)
100Mr Mitra continued:
“On examination today, he is tender over his first MTP joint. There is mild degree of hallux valgus. There is marked limitation of dorsiflexion and plantar flexion of his hallux. He is also tender over the base of the proximal phalanx. He has callosities over the dorsal aspect of the PIP joint as well as the tip of his second toe. He has a fixed flexion deformity of his PIPJ, with a correctable dorsiflexion deformity in his second MTP joint.” (Ibid)
101Mr Mitra concluded “I have booked him for fusion of his first MTP joint, Weil’s osteotomy of his second metatarsal, extensor tendon lengthening of his second toe and PIP joint fusion” (Ibid).
102Mr Mitra also noted a recurrence of Mr Greene’s “right carpal tunnel syndrome with osteoarthritis in his right elbow.” (DCB 79)
103There is, and can be, no suggestion that these foot problems were somehow related to, or consequent upon, the transport accident. The issues both pre-date and post-date the transport accident. In my view, they give the lie to any suggestion that there was a serious possibility of Mr Greene returning to the workforce herding cattle. Mr Greene’s continued exclusion from the workforce is not a consequence of the 2015 transport accident.
104What of the other alleged consequences?
105In Mr Greene’s second affidavit, he said:
“before the motor vehicle accident, I got on well with my kids and was able to muck around with my grandchildren. In this regard, I have 3 adult children and 8 grandchildren aged between 2 years old and 18 years old.” (PCB 14, [9])
106He continued “[m]y relationship with my children is no longer the same because of the way I am now.” (PCB 15, [19])
107It emerged in cross-examination that the issue of Mr Greene’s relationship with his children and grandchildren is more complicated and due, perhaps, to some tragic elements of family dynamics. There seems to have been an intervention on the part of the Department of Human Services, though the precise nature of the intervention was not clear.
108Mr Greene said that one of his grandchildren was:
“kicking in the windows and he got glass in his foot, so I roared at him – that’s all I did was roar at him – and the ambos came, I remember that part of it because I’d called the ambulance, I did the right thing.” (T78, L9-12)
109The whole thing was complicated by the fact that the grandchildren’s mother was “in jail at the time.” (Ibid, L27)
110It appears that the police attended upon an allegation that Mr Greene was assaulting the children. He admitted to “roaring” at them but no more (Ibid, L17-19).
111Again, it is difficult to attribute this unhappy family dysfunction to the 2015 transport accident.
112Mr Greene complained that the transport accident had, if you will, aborted an incipient attempt to regain fitness by walking as exercise. The foot problems already described indicate this view of events is as unrealistic as Mr Greene’s belief that he was about to re-enter the workforce as a cattle herder.
113In his second affidavit, Mr Greene said that before the accident “[a]round the home I was able to perform basic home duties such as vacuuming.” (PCB 14) Implicit, he says these tasks are now beyond him.
114On 9 June 2015, Dr Sarkar, presumably at Mr Greene’s request, wrote:
“To Whom It may concern,
This is to certify that I have examined [Mr Greene] on the Tuesday, 9 June 2015”. (DCB 69)
115The doctor stated “ongoing medical problems which restrict his working capability. He cannot push a lawn mower or lift anything over head because of osteoarthritis and stress fracture in hands and arms.” (Ibid)
116This letter was presumably directed to the WorkCover authority.
117On 1 February 2022, Dr Yunfei Han of WRAD wrote to the WorkCover Authority, presumably at the request of Mr Greene, stating:
“Mr Greene tells me that he has not been able to use his wrists and elbows following a work place injury in 1991 when he reported suffering ulnar nerve damage when catching a plank, and since the injury he has needed support to help mowing his lawns and household help.
* requires lawns to be mowed
* frequency fortnightly and indefinitely
* aid daily living needs
* ongoing medical review by WRAD doctors” (DCB 89)
118This attributes Mr Greene’s inability to perform “daily living needs” to the 1991 injury not to the transport accident.
119Moreover, as Mr Stanley and Mr Storey observed, Mr Greene’s case is that he is restricted by the injury not only to the left shoulder but to the right shoulder. All in all, I am not satisfied, on the balance of probabilities, that there has been a significant reduction in Mr Greene’s ability to carry out daily household tasks by reason of the transport accident.
120Mr Greene complains that he has been deprived of the enjoyment and fellowship of motorbike riding with his friends by reason of the 2015 transport accident. This causal link is, upon the material, far from clear.
121First, motorbike riding, whether of the large highway description or the “trailbike” type, became difficult for Mr Greene because of his right foot problem. When Mr Arogundade noted, in one of his reports, that the main problem for Mr Greene was changing gears on his motorbike, he misunderstood. In fact, the right foot is needed to “hit the brakes”. Mr Greene was at pains to say that since the transport accident, the only highway motorbike riding he had undertaken was to travel as part of two funeral corteges in 2016 (T64).
122Even if Mr Arogundade, in February 2017, misunderstood the precise problem, the fact that Mr Greene was complaining to him as to the effect of his right foot problems on his motorbike riding tends to discredit his account of being excluded from motorbike riding except for two funeral corteges after the transport accident.
123Moreover, Mr Greene’s affidavit explains the problem which he suffered when motorbike riding after the accident as being referable to his neck injury not to any shoulder injury. Since the accident, he said:
“because of my further injuries, riding a motor bike simply became too much for me. Whereas in the past I was able to ride them for at least up to half an hour at a time, even this became too much for me because of my further injuries. Wearing the heavy leather jacket was too heavy on my shoulders. Wearing a helmet was too much for my neck. The force of my head being moved back in the wind also would increase pain in my neck and give rise to headaches. Basically, I ended up giving my motor bikes away to my nephew.” (PCB 15, [22])
124This seems to attribute the problem with motorbikes primarily to an injury to Mr Greene’s neck, which was not the subject of this application.
125All in all, I am not satisfied, on the balance of probabilities, that even if Mr Greene has indeed given up motorbike riding, as he says he has, that this can be regarded as a consequence of the injury which he now seeks to have found to be “serious” for the purposes of the statute, namely the injury to the left shoulder.
126Again, Mr Greene says that before the accident he was able to indulge in welding and assist neighbours by repairing their fences. Once it is accepted, as I believe it must be, that Mr Greene was disabled even from lawnmowing before the accident, the thought that he could have engaged in welding in, for instance, the year 2016, in light of his well-documented wrist injuries and the separate and distinct foot problems which he suffered, is difficult to believe. I do not accept his evidence in that regard. In any event, the problems with welding were attributed by Mr Greene to his neck injury and not to the left shoulder injury (see [15] above).
127Further, with Mr Greene incapacitated even from mowing the lawn, it is difficult to imagine him in 2016, absent this transport accident, driving around and collecting car wrecks on his car’s trailer (PCB 14). No doubt he would have been able to drive to the site of the wreck subject to pausing for a rest after each half hour of driving (PCB 15, [26]). The tasks involved in securing and attaching a moving car wreck onto a trailer are, I accept, beyond him in his present condition. If he was unable even to mow the lawns before the transport accident, it is impossible to believe that he could have undertaken the work with the wrecks. I reject his evidence in this regard.
128As to pain in the left shoulder, Mr Greene has had longstanding diagnoses of suffering from a pain syndrome. For instance, Professor Vernon Marshall, in a report to the WorkCover insurer dated 7 June 2005, to be found in the Plaintiff’s Court Book, diagnosed Mr Greene as at that date as suffering “[c]hronic pain syndrome with abnormal illness behaviour” (PCB 95).
129In Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46 (“Stamboulakis’ case”), Maxwell P undertook a consideration of pain syndromes in the context of injury compensation at [3]-[9]. The last paragraph is expressed in terms “For the assistance of judges”. His Honour then proceeded to state what he described as “the applicable principles”.
130The Court of Appeal in Stamboulakis’ case expressed itself in general terms as if seeking to add to the lexicon of personal injury, that is matters that a court can know even perhaps without resort to the process of taking judicial notice. The Court of Appeal has more recently said that the analysis of pain disorders in Stamboulakis’ case was not available as “general knowledge” in personal injury cases, and could not be resorted to in the absence of evidence to similar effect placed before the court in a particular proceeding. (Jovceva v Transport Accident Commission [2019] VSCA 105 at [108], per Kaye, Niall and T Forrest JJA).
131The involvement of Mr Greene with the chronic pain syndrome, whatever it might be, must be regarded, however, as indicating chronic long-term and pre-existing transport accident. No doubt the injury to the left shoulder has made things somewhat worse, but this is not a situation where a previously comfortable life has been transformed to one wracked with pain.
132In those circumstances, whether one views the various consequences alleged and relied upon individually or collectively, whether they have been proven or not proven by evidence, in my view, the consequences do not meet the criterion of being “very considerable”, as required for a finding of serious injury in accordance with the joint Judgment in Humphries & Anor v Poljak [1992] 2 VR 129, 140 per Crockett and Southwell JJ.
133As to sleep disturbance, which it may be accepted may be regarded as a very important consequence, and perhaps a vital one in making a finding of “serious injury”, in his second affidavit Mr Greene said:
“In addition, my ability to get a good night's sleep has also deteriorated. At least before the motor vehicle accident, I was able to sleep on my sides more than I can now. These days invariably | will try and sleep on my back. I have bought special pillows which are flat as I cannot have my neck up too high when I am trying to sleep.” (PCB 16, [33])
134Mr Stanley and Mr Storey contended that this paragraph attributed the sleep disturbance to the neck injury, which was not the subject of the present application. Mr Brett KC and Mr Pierorazio vigorously disagreed. The proper interpretation of the paragraph is, I think, that it is a combination of the two injuries which have the effect of sleep disturbance.
135The present situation is perhaps similar to the one which confronted her Honour Judge Cohen in Bezzina’s case. It will be recalled that her Honour refused to make a finding of serious injury and her determination was upheld on appeal to the Court of Appeal. Her Honour had observed in Bezzina v Phi & Transport Accident Commission that whilst Mr Bezzina had suffered an injury to his right shoulder and therefore experienced pain in an area that he had not experienced it before, and:
“ that it probably interferes with sleeping on his right side, and that may interrupt his sleep if he turns onto it, but part of the sleep disturbance as described is still attributable to the pre-existing low back pain and left leg pain.” ([2011] VCC 423 at [60])
136The Court of Appeal found that her Honour had not thereby fallen into error.
137Mr Greene’s position is similar. As noted, he has a longstanding and accepted chronic pain syndrome as well as persistent problems disabling him from work in his wrists, and perhaps other parts of his body. The sleep disturbances now complained of, as noted above, are not to be attributed solely to the injury to the left shoulder but partly to the injury to the neck. Mr Greene is to be seen in the same light as the unsuccessful plaintiff in Bezzina’s case.
138The plaintiff’s application is dismissed.
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