Habib v Transport Accident Commission
[2020] VCC 398
•8 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-03490
| WAHAJ HABIB | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 and 31 March 2020 | |
DATE OF JUDGMENT: | 8 April 2020 | |
CASE MAY BE CITED AS: | Habib v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 398 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – right shoulder injury – permanent serious disfigurement – capacity to return to employment – permanence of condition – whether the consequences are “serious” for the plaintiff
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Baker v Transport Accident Commission [1997] 1 VR 662; Transport Accident Commission v Garcia [2015] VSC 225; Ansett Australia Ltd v Taylor [2006] VSCA 171; Transport Accident Commission v Florrimell [2013] VSCA 247
Judgment: Application for serious injury certification in respect of the right shoulder injury arising from a transport accident which occurred on 1 February 2018 is granted. Application for serious injury certification in respect of the permanent serious disfigurement is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis | Kenyon Legal |
| For the Defendant | Mr P D Elliott QC with Ms J Clarke | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This is an application brought by Originating Motion dated 29 July 2019. The plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages from injuries suffered by him arising out a transport accident which occurred on 1 February 2018 (“the said date”).
2 Section 93(6) of the Act provides a court must not give leave pursuant to ss(4)(d) unless it is satisfied that the injury is a “serious injury”.
3 The definition of “serious injury” relied upon by the plaintiff is under s93(17) of the Act is as follows:
(a)a serious long term impairment of loss of body function; or
(b)permanent serious disfigurement.
4 In this application, the plaintiff in effect has two separate applications for serious injury. Under s93(17) of the Act, the plaintiff seeks a serious injury certification by the Court for:
(i)loss of body function of the right shoulder; and
(ii)permanent serious disfigurement of his nose.
5 The enquiry under s93(17) of the Act focusses attention upon whether the injury has produced an organic impairment or loss of body function and then, by reference to the consequences of that impairment, to determine whether it is serious and long term. The serious injury defined by ss(a) can have its seriousness measured in part by a mental response to a physical impairment. What it does not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of the body function.[1] In forming a judgment as to whether the consequences and the injury are “serious”, the question to be asked is: Can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as “at least very considerable” and “more than significant” or “marked”?[2]
[1]Richards v Wylie (2000) 1 VR 79
[2]Humphries & Anor v Poljak [1992] 2 VR 129
6 In determining whether a permanent serious disfigurement is a serious injury under s93(17)(b) of the Act, the Court must have regard to the location, size and degree of obviousness of the scar or disfigurement in addition to any other consequences, including the mental consequences of the disfigurement to the plaintiff.[3]
[3]Baker v Transport Accident Commission [1997] 1 VR 662; Transport Accident Commission v Garcia [2015] VSC 225
7 This proceeding was heard in the constraining times of the COVID-19 pandemic. The effect of that constraint was that the plaintiff in this case gave his evidence via the computer application known as Zoom. The plaintiff was the only witness called and cross-examined in this proceeding. The plaintiff relied upon two affidavits sworn by him on 6 May 2019 and 13 February 2020.
8 In addition to the affidavits and evidence given by the plaintiff, he relied upon the medical reports tendered as part of exhibit “E”. I have read all of the tendered medical material. The tendered evidence in this proceeding was as follows:
9 The plaintiff tendered the following documentation:
·Exhibit “A” – letter from Transport Accident Commission to the plaintiff dated 25 November 2019;
·Exhibit “B” – two colour photographs of the plaintiff’s facial injuries, part of the Plaintiff’s Court Book (“PCB”) page 83;
·Exhibit “C” – four photographs of the damage to the plaintiff’s car;
·Exhibit “D” – an affidavit of Abdurrahman Gokler sworn 25 March 2020;
·Exhibit “E” – PCB pages 2 to 17 inclusive; pages 19 to 39 inclusive, and pages 49 to 101 inclusive;
·Exhibit “F” – a two-page email from Edib Kurkcu dated 13 November 2019; and
·Exhibit “G” – the plaintiff’s earnings schedule for the years 2014, 2015, 2016, 2017, 2018 and 2019.
10 The defendant tendered the following documentation:
·Exhibit 1 – Defendant’s Court Book (“DCB”) pages 4 to 29 inclusive and pages 88 and 89.
11 At the commencement of the proceedings, Mr Elliott, on behalf of the defendant, identified the following matters as being in issue in this case:
(1)The plaintiff’s work capacity was not affected by the alleged shoulder injury suffered by him as a result of the transport accident;
(2)The consequences set out in the plaintiff’s affidavits are not significant;
(3)Mr Garewal has not diagnosed an injury to the right shoulder and states that the shoulder condition has not stabilised;
(4)The disagreement between Mr Miller and Mr Owen about the right shoulder injury to the plaintiff means there is not a serious injury in this case; and
(5)Whilst the Transport Accident Commission has agreed to pay for an operation to the plaintiff’s right shoulder, by its letter dated 25 November 2019 (exhibit “A”), this does not amount to an acceptance that the injury to the plaintiff’s right shoulder is a “serious injury”.[4]
[4]Ansett Australia Ltd v Taylor [2006] VSCA 171; Transport Accident Commission v Florrimell [2013] VSCA 247
The Plaintiff’s background
12 The plaintiff was born in 1945 and is currently seventy-four years of age. The plaintiff migrated to Australia in 1994. The plaintiff is a married man who lives with his wife. The plaintiff has three adult children, all of whom live independently of him and his wife.
13 The plaintiff is an educated man. He obtained a Bachelor of Electrical Engineering from Karachi University in Pakistan. He then went on, after arriving in Australia, to complete a Master of Electronics Engineering at Victoria University in 1998. His most recent qualification was a Diploma of Education in 2006.
14 The plaintiff has had a consistent employment record. He has worked as an engineer in Turkey, Iran and Saudi Arabia prior to emigrating to Australia. When he came to Australia, he also worked as an engineer. Most recently, the plaintiff has taken up the role of teaching in 2007. In 2008, he became a full-time employee of Darul Ulum Secondary College of Victoria in Fawkner. The plaintiff was teaching VCE mathematics and physics at the time of the transport accident.
15 The plaintiff returned to work after the transport accident which occurred on 1 February 2018 and continued working as a teacher until the end of the academic year. In a letter dated 23 November 2018, the plaintiff received a termination of employment by reason of a redundancy letter from his employer.[5] Since the plaintiff’s termination of employment at the Darul Ulum Secondary College, he has worked a total of four days as a relief teacher. The plaintiff has not applied for any other teaching positions.
[5]PCB 15
The transport accident
16 The transport accident occurred on 1 February 2018. The plaintiff described the accident in the following terms:
“On the day of the accident I was stationary at traffic lights on Cooper Street in Epping when all of a sudden, a vehicle travelling at high speed from behind failed to stop and collided with the rear end of my vehicle. My car was then pushed into the vehicle in front and I was sandwiched between the two vehicles. Both my front airbags deployed. I recall being in shock but I was able to get out of the car by myself.”[6]
[6]PCB 4, paragraph 9
17 The tendered photographs of the damage to the plaintiff’s vehicle were taken at the scene. They were part of exhibit “C”. It is fair to describe the damage to the vehicle as being fairly extensive.
Medical treatment of the Plaintiff as a result of the transport accident
18 The plaintiff was taken by ambulance to the Northern Hospital. At the hospital, the plaintiff was examined, which revealed no spinal tenderness. He had bruising to the bridge of his nose but was able to breathe through it. The plaintiff complained of pain to the right upper quadrant of the abdomen and lower ribs.
19 A CT scan of the brain, cervical spine, chest, abdomen and the pelvis was conducted and there was no acute intracranial haemorrhage, no skull or cervical spine fracture and CT features to raise suspicion of intrathoracic or intra-abdominal injury.
20 The cervical collar that was originally placed on the plaintiff was removed as a result of the CT scan results. It was noted that the plaintiff was mildly tender over the C7 on movement but there was a full range of the cervical spine. The plaintiff was released from the hospital on the day of the accident.
21 On 5 February 2018, the plaintiff attended upon his general practitioner, Dr Pankaj Khanna at the Epping Healthcare Medical Clinic. Dr Khanna diagnosed the plaintiff as suffering from soft tissue injuries which he sustained as a result of the transport accident. The plaintiff had returned to work on 26 February 2018 on a part-time basis initially.
22 The plaintiff re-attended Dr Khanna on 28 March 2018 complaining of nose symptoms as a result of the transport accident. An x‑ray revealed that the plaintiff had a fracture to his left nasal bone. Dr Khanna then referred the plaintiff to Dr Avdo Zahirovic, an ear, nose and throat surgeon.
23 The plaintiff underwent surgery for his nose on 4 September 2018. Following the surgery, the plaintiff suffered a septal abscess as a complication of the procedure which was further attended to on 19 September 2018.[7] On 22 October 2018, the plaintiff was discharged from the care of Mr Zahirovic.[8]
[7]PCB 26
[8]PCB 34
24 The plaintiff has received chiropractic treatment from Dr Sean Campbell from 8 January 2019.[9] This treatment is to relieve the pain to the anterior and posterior right shoulder and right-sided mid-back pain.
[9]PCB 36 and 37
25 The plaintiff was also referred to Mr Devinder Garewal, an orthopaedic shoulder surgeon. He attended upon Mr Garewal on 21 August 2019. Mr Garewal has recommended that the plaintiff have surgery to his right shoulder.[10] The defendant has agreed to pay for the cost of the surgery by Mr Garewal, which he is to perform to the plaintiff’s right shoulder.[11]
[10]PCB 38
[11]Exhibit A, letter of 25 November 2019 from the Transport Accident Commission to the plaintiff
26 On 12 November 2019, the plaintiff attended at the Emergency Department of the Northern Hospital complaining of light headedness and upper chest discomfort. He had suffered a brief loss of consciousness and had fallen to the floor. The plaintiff remained in hospital until 15 November 2019. The plaintiff had been diagnosed with an iron deficiency in his blood levels and was treated by inpatient iron infusion.[12]
[12]PCB 31 and 32
27 The plaintiff’s current status is that he is awaiting final clearance and outcome from the Northern Hospital in relation to his blood condition. The plaintiff’s evidence is that once that medical issue has been finalised, he will proceed with the right shoulder surgery as recommended by Mr Garewal.
Serious injury certificate for permanent serious disfigurement
28 The application for serious injury certification for permanent serious disfigurement in respect of the plaintiff’s nose is dismissed. The reasons for this decision are as follows.
29 The medical evidence in respect of the plaintiff’s condition to his nose is from Dr Avdo Zahirovic, the surgeon who operated upon him, and Mr Malcolm Baxter, ear, nose and throat surgeon.
30 Dr Avdo Zahirovic’s report dated 17 January 2019 states the following:
“At the time of surgery the findings were typical of a patient with nasal obstruction and sinusitis. These findings were indistinguishable between a patient who had developed these problems spontaneously or one who had developed them as a result of any previous trauma. It was impossible to say from the surgical findings, the clinical findings and the CT findings whether this man’s sinusitis was the result of his trauma.
The best that I can is that it is possible (although not certain) that his sinusitis was a result of his nasal and facial trauma. The external deformity of his nose was almost certainly the result of this trauma, but I would not consider any corrective surgery for cosmesis in a man of this age.”[13]
[13]PCB 34
31 Mr Malcolm Baxter, ear, nose and throat surgeon, in his report dated 4 March 2019, made the following statement in respect of the plaintiff’s disfigurement:
“The nose showed a hump deformity and a slight deviation in the nose to the right. There was a 1 cm transfer scar over the dorsum. …
…
The scarring and nasal deformity will remain, and they are mild.”[14]
[14]PCB 52
32 Mr Baxter went on to give a whole person impairment in respect of the plaintiff’s nose, but such determination is not relevant to the considerations of the Court in respect of this claim for serious injury.
33 I have viewed the photographs of the plaintiff’s face, which were exhibit “B”, and also have been able to observe the plaintiff whilst giving evidence via Zoom or on video as it in reality is. Whilst I find that the deformity is to the plaintiff’s nose and obviously on part of his face, in my judgment, I do not accept that the bump on the plaintiff’s nose is of such a degree that reaches a level of “serious injury” under the Act. In making this assessment, I take into account the statement made by the plaintiff in his first affidavit, which is as follows:
“I do not like people asking me about my nose. It is obviously deformed. I have been told that it cannot be fixed any further. I believe my nose is disfigured and has changed the appearance of my face.”[15]
[15]PCB 8
34 For the reasons set out above, I dismiss the plaintiff’s claim for serious injury certification for permanent serious disfigurement of his nose.
The right shoulder/loss of body function
35 The plaintiff, in his affidavits dated 6 May 2019 and 13 February 2020, stated that he was unable to continue with his work as a result of the disability in his right shoulder arising from an injury in the transport accident. The plaintiff stated that he was unable to use his right arm to write on the whiteboard in a position where his arm was required to be elevated. The plaintiff stated that his employment was terminated as a result of this disability.
36 The plaintiff exhibited to his affidavit material a letter of termination dated 23 November 2018 from Darul Ulum College of Victoria. The letter of termination states the following:
“As a result of reduction in student numbers in VCE, subject offers by the College proportionally reduced. Therefore, your position as a teacher of Physics is no longer needed. However, the College offered you teaching load in junior secondary, but you declined due to your health reasons. Regrettably, we [are] compelled to make your position redundant. This means your employment will terminate on 14/12/2018 and [your] position is declared redundant. This decision is not a reflection on your performance. Your entitlements are outline[d] below.”[16]
[16]PCB 15
37 In the course of evidence, the plaintiff stated that his offer for junior secondary classes was for Years 7, 8 and 9. The teaching was to be in the subject of mathematics. The plaintiff stated that he was unable to take up that work because teaching those year levels involved a lot more work on the whiteboard and it was difficult for him to elevate his arm for prolonged periods.[17] The plaintiff was intensively and extensively cross-examined on this point. The plaintiff gave evidence that in relation to his VCE teaching he was able to use PowerPoint and write on the lower part of the whiteboard. He gave evidence that this was because he only had three students in physics at VCE level. He stated that he could use the space on the lower end of the whiteboard so that he did not have to lift his arm up.[18] The plaintiff went on to state that he would be required to use the whole of the whiteboard if he was to teach a 25-student class. He stated he was unable to use the whole of the whiteboard due to his inability to lift his right arm.[19] After being further pressed by Mr Elliott for the Transport Accident Commission, the plaintiff stated as follows:
[17]Transcript (“T”) 36 and 37
[18]T39
[19]T40
Q:“You prepared the classes that you did. You’ve told us you taught classes during the academic year of 2018 and you’d have to prepare those classes, would you not?‑‑‑
A:For, ah, VCE classes, yes.
Q:Yes?‑‑‑
A:Yes, for the VCE subjects. But seven, eight, nine, they require a lot of work.
Q:Well, the mathematics to start with wouldn’t be as complicated, would it?‑‑‑
A:If you have – the thing is you have to correct, ah, 25 exercise books, their homeworks (sic) and all that. It was a lot of, ah, work which I couldn’t do. That’s why I didn’t take that position.”[20]
[20]T41, L15-25
38 The plaintiff stated that he was unable to use an overhead projector or similar teaching aid as there was not one in the school. Finally, the plaintiff stated that there was a lot more involved in teaching Years 7, 8 and 9 because of the twenty-five students in each class.[21]
[21]T42
39 The plaintiff did return to teaching after the transport accident. He continued to teach his VCE classes up until his termination in November 2018. In that period, he was not required, and did not teach, Years 7, 8 and 9. I am satisfied, on the basis of the evidence in this case, that the plaintiff was able to continue his teaching role as a VCE teacher given the use of PowerPoint presentations and writing on the whiteboard at what he described as “the lower level”. Once the position of teaching Year 12 students was removed due to lack of numbers or interest by the students, his alternative position offered as a junior mathematics teacher was beyond his physical capacities due to the right shoulder injury and disability.
40 I accept the plaintiff’s explanation that he could not continue teaching as a Year 7, 8 and 9 level mathematics teacher because his right shoulder injury did not allow him to use the whole of the whiteboard as required in the classroom and hence he had to decline the opportunity to continue with his teaching career. I am mindful of course that the plaintiff was of senior years when this accident happened, but his evidence was that he was going to continue to teach for as long as he could. I accept that he was genuine in that desire and ambition.
41 As a result of the plaintiff ceasing his employment due to the injury to his right shoulder, he has suffered a diminution of his income earning capacity. The evidence is that since the time of his termination at Darul Ulum Secondary College, he has had four days of relief teaching up until the time of the hearing. The loss of income is fully set out in exhibit “G” and I will not repeat it here.
Surgery
42 The plaintiff gave evidence that he has been recommended to have surgery to his right shoulder. That recommendation came from Mr Devinder Garewal, an orthopaedic shoulder surgeon. In his report dated 20 November 2019, Mr Garewal states as follows:
“The client’s condition has not stabilised. He has significant symptoms of pain and dysfunction, and in my opinion requires surgery.
With continual symptoms from his right shoulder inflammation he may have further deterioration of his condition.”[22]
[22]PCB 38
43 As a result of the recommendation of Mr Devinder Garewal, the Transport Accident Commission, in its letter dated 25 November 2015, has accepted the recommendation of Mr Garewal that it pay for the right shoulder arthroscopy for the plaintiff.[23]
[23]Exhibit A
44 The plaintiff was admitted to the Northern Hospital on 12 November 2019 with an unrelated health issue. The plaintiff had suffered from a brief loss of consciousness and fell to the floor of his home. He attended at the Emergency Department of the Northern Hospital on that day. Investigations revealed that the plaintiff was suffering from a blood condition. The plaintiff was given an inpatient iron infusion and released from hospital on 15 November 2019.[24]
[24]PCB 31 and 32
45 In his affidavit dated 13 February 2020, the plaintiff stated that he was currently in the process of arranging to have the surgery to his right shoulder performed.[25] The plaintiff gave the following evidence in respect of whether or not he was going to proceed with the surgery given his other health issues:
[25]PCB 11
Q:“The surgery to the shoulder, sorry. Are you still proposing to have surgery to the shoulder?‑‑‑
A:Surgery to the shoulder. It depends on my, ah, report from my GP – from my – sorry, from the Northern Hospital.
Q:Can you just explain that, please. I think we’re all a little bit confused. What are you expecting the Northern Hospital to tell you so as to enable you to make a decision about the surgery to your shoulder?‑‑‑
A:Because – because I must talk to my GP. He says that first this treatment should be done, the treatment of my blood, ah, and, ah, after that he may recommend to go ahead with the surgery or not.
Q:And if he recommends that you go ahead with the surgery, will you have the surgery?‑‑‑
A:It depends how I go with that, with the – the rest of the – my treatment with the Northern Hospital.”[26]
[26]T29, L8-23
46 The plaintiff was cross-examined about whether or not he proposed to proceed with the surgery and was taken by Mr Elliott to his review appointment which was to occur in February 2020. The plaintiff stated as follows:
Q:“And tell us what happened at that review in relation to that?‑‑‑
A:They said that I have to go through a procedure of gastroscopy and colonoscopy.
Q: And when are you doing that?‑‑‑
A: I’m waiting for the call.
Q:If that proves the fact that it’s not going to affect you having surgery, then you will have the surgery, will you not, because you say, ‘I’m in the process of arranging to have the surgery’? You’re going to have it if – if – the gastroscopy and colonoscopy are such that that people tell you you can go ahead and have the shoulder operation, you’re going to do it, aren’t you?‑‑‑
A:Yep, I will go ahead if, yeah, my doctor says – advises yes.”[27]
[27]T52, L15-26
47 I accept that the plaintiff will, if advised by his medical practitioners, continue to have the right shoulder surgery as recommended by Mr Garewal. The plaintiff is awaiting advice from the Northern Hospital treaters as to his blood condition prior to undergoing that surgery. I accept that is a reasonable and sensible position for the plaintiff to take.
48 The medical evidence relied upon by the parties in this case came from Mr Miller, orthopaedic surgeon, and Dr John Owen, orthopaedic surgeon. The other expert evidence in relation to the condition of the plaintiff’s shoulder is given by Mr Garewal, his treating orthopaedic surgeon.
Mr Devinder Garewal
49 In his report dated 20 November 2019, Mr Garewal stated, in respect of the right shoulder condition:
“His current condition, quite possibly, may result in him cessating his employment prior to his intended retirement date but this is of course dependent on surgery for his right shoulder condition.”[28]
[28]PCB 38
50 I note here that within three days of that letter from Mr Garewal, that the plaintiff received his termination notification.[29]
[29]PCB 15
51 This opinion of Mr Garewal of course raises the issue of whether or not the injury to the plaintiff’s right shoulder is long term. It would be the intention of Mr Garewal and the hope of the plaintiff that the surgery to his right shoulder would improve his physical disability. The fact that the surgery has not yet taken place means that this prediction of an improved state for the plaintiff’s right shoulder condition is speculative. A court is required to assess the plaintiff’s consequences as at the date of the hearing. On the basis of the evidence in this proceeding, I find that the plaintiff’s right shoulder condition is a long-term condition.
Mr Russell Miller, orthopaedic surgeon
52 Mr Miller prepared two reports dated 2 December 2019 and 18 February 2020. The second report by Mr Miller was prepared after he had been given a copy of the MRI scan to the plaintiff’s shoulder which was performed on 6 February 2020. Mr Miller took a history from the plaintiff in relation to his neck, right shoulder, facial injury and mental state. In relation to both the neck and right shoulder, he described them as major problems for the plaintiff. Mr Miller noted that the orthopaedic surgeon, Mr Devinder Garewal, was going to undertake right shoulder surgery for the plaintiff. Mr Miller stated in his first report that it would be reasonable to proceed with arthroscopic assessment and treatment of the right shoulder.[30] In Mr Miller’s opinion, he stated that the combined effects of the neck and shoulder would be to preclude comfortable writing on a whiteboard in an occupational setting.[31] In this application, a court is only able to assess the effect of the right shoulder injury and disability in respect of the plaintiff’s ability to write on the whiteboard and hence continue with his teaching career. I accept that the right shoulder is the reason that the plaintiff was unable to continue with his teaching career.
[30]PCB 92
[31]PCB 93
53 In his second report dated 18 February 2020, Mr Miller noted the MRI scan report of the plaintiff’s right shoulder dated 6 February 2020. Mr Miller gave his opinion as follows:
“Right shoulder
This additional information leads me to conclude that there are ongoing problems with the right shoulder which are likely due to rotator cuff dysfunction including partial thickness tear, recurrent impingement, SLAP tear, biceps tendinopathy and pathology in the acromioclavicular joint. It is also likely that the pain in the shoulder, reflects referred pain from the cervical spine and manifestation of the chronic pain syndrome. I remain of the view the prognosis for the shoulder is only fair.
… I believe it is likely that the client will ultimately come to surgical intervention for the right shoulder to address the identified intra-articular pathology.”[32]
[32]PCB 95 and 96
54 I note in that report that Mr Miller stated that the restriction for the plaintiff’s work capacity was in relation to his right shoulder only.[33]
[33]PCB 96
Dr John Owen, orthopaedic surgeon
55 Dr Owen prepared two reports dated 20 January 2020 and 9 March 2020. Dr Owen examined the plaintiff on behalf of the defendant. Dr Owen made the following comment in respect of his examination of the plaintiff:
“His impingement test was negative but he had diminished internal rotation in 90 degrees of abduction signifying residual loss of range of movement, probably indicative of residual of post frozen shoulder or arthritis. It is interesting he was not particularly tender over his AC joint and if anything he was more tender in the posterior glenohumeral joint than anteriorly over the subacromial space.”[34]
[34]DCB 7
56 Dr Owen went on to state:
“I do not think the arthroscopic procedure proposed by Mr Garewal is reasonable. I do not think that he has signs of impingement. He does have signs of dysfunction in his shoulder.[35]
…
… The problem with his shoulder does interfere with the use of his arm at or above horizontal when doing heavy work.[36]
[35]DCB 8
[36]DCB 9
57 In his more recent report, Dr Owen described his examination findings as follows:
“As far as his right shoulder was concerned he had loss of active elevation but good passive elevation, no impingement sign, but weakness in his supraspinatus and subscapularis muscles. He had a loss of internal rotation and 90 degrees of abduction. … .”[37]
[37]DCB 16
58 Dr Owen had a copy of the MRI scan of the plaintiff’s shoulder performed on 6 February 2020. In respect of that radiology, Dr Owen stated as follows:
“What this MRI shows is basically degenerative changes within the tendons of the rotator cuff and the long head of biceps, and changes in the upper part of the glenohumeral in the labrum, which are associated with some thinning of the articular cartilage of the head of the humerus – in other words, early arthritis. These are degenerative changes, not posttraumatic changes, and would explain why he is having some pain and using his arm overhead. They would also explain the features on his clinical examination.”[38]
[38]DCB 17
59 Dr Owen then proceeds to make comment on the opinions of Mr Russell Miller and Mr Garewal.
60 Dr Owen accepts that the right shoulder is the plaintiff’s dominant problem.[39]
[39]DCB 18
61 Dr Owen expressed his opinion as follows:
“I have a lot of sympathy for Mr Miller’s interpretation of what is going on in Mr Habib and the words ‘complex’ and ‘multifactorial’ are relevant. We do not have any evidence on the imagining, including the shoulder MRI, that he injured his bones, ligaments or tendons in the accident. Some of these structures show degenerative changes but they are very common, almost universal in his age group.
… It is really difficult to clarify what exactly went on in the accident but I do not think that the accident tore his rotator cuff tendons, wore out the head of his humerus or made the long head of biceps or labrum show signs of wear and tear.
…
I do think that the accident has contributed in that it has changed him from being asymptomatic to being symptomatic, especially in using his arm overhead. He did not have any illness behaviour so I think he is quite a credible individual. No doubt the shoulder, if imagining had been done prior the accident, would have shown the same changes as has been shown post injury, but his function is less. Given that it is almost two years from the accident, I doubt whether it will change very much. Therefore I do think that the accident is contributing to his ongoing problem.
…
These shoulder problems do interfere with activities of daily living, making it uncomfortable to reach up to shelves or carry heavy weights especially with the arms extended, push and pull trolleys etc. However again he has not really had much conservative treatment addressed to the specific strength of his shoulder.”[40]
[40]DCB 20
62 Dr Owen went on to note that the plaintiff had not had sufficient conservative treatment for his right shoulder problem. He noted that the plaintiff only took Panadol or Nurofen, and interpreted that as an indication that the plaintiff was not suffering from much pain.[41] It is clear from Dr Owen’s reports that he was unable to directly link the transport accident to any findings on the MRI of the plaintiff’s shoulder; however, Dr Owen did accept that the accident had made the plaintiff symptomatic in his right shoulder and considers that his right shoulder is an ongoing problem, in the sense that it is for the long term.
[41]DCB 22
63 On the basis of the medical evidence in this case, I conclude that the plaintiff has suffered a shoulder injury in the course of the transport accident which has required, or will require, the surgery recommended by Mr Garewal. The necessity for the surgery to the right shoulder is of itself a significant consequence for the plaintiff.
Activities of daily living
64 I accept the plaintiff’s evidence that his activities of daily living, including maintenance around the house and other housework, is limited due to his right shoulder injury. The plaintiff is the recipient of three hours of cleaning work on a periodic basis paid for by the Transport Accident Commission. The plaintiff properly states that he can do some limited work around the house to assist his wife in keeping the house but his right shoulder limits what he can do.
65 The plaintiff has also stated that he is unable to continue with his usual maintenance jobs, also due to his right shoulder disability. I accept that is the case and that that is a consequence for him.
Sleep
66 The plaintiff, in his first affidavit, stated that his sleep was interfered with due to the neck pain.[42] In his second affidavit, the plaintiff stated that his sleep was interfered with due to the right shoulder pain and not being able to sleep on his side.[43] The discrepancy between the first and second affidavit was not properly explained during the course of his evidence. Nevertheless, I accept that the plaintiff does suffer from an interruption to his sleep due to the right shoulder injury which he received in the transport accident.
[42]PCB 7
[43]PCB 11, paragraph 6
Medication
67 The plaintiff takes limited medication in respect of pain relief. The plaintiff takes Nurofen and Panadol according to his history to Dr Owen.[44] In his affidavit, the plaintiff stated that he takes Panadol Osteo which is also an over-the-counter medication for pain relief.[45] I accept that the plaintiff is suffering pain to the extent that he takes over-the-counter medication to treat the pain and that is a result of the transport accident.
[44]DCB 22
[45]PCB 11
Credit
68 I accept that the plaintiff is a credible and reliable witness. It is clear on a proper analysis of all the medical reportage in this case that none of the doctors have detected any level of malingering or exaggeration by the plaintiff. Indeed, Dr Owen described him as a credible individual.[46]
[46]DCB 21
Conclusion
69 On the basis of all the medical evidence and the evidence of the plaintiff in this case, I accept that he has suffered an injury to his right shoulder as a result of the transport accident on the said date.
70 I find that the consequences to the plaintiff of his loss of employment, the proposed surgery to his right shoulder, and the impact on his activities of daily living when considered together are properly described as “at least very considerable” and “more than significant or marked” when taken into account with a range of other cases. I accept, on the basis of the medical evidence, that the condition of the plaintiff’s right shoulder is for the long-term foreseeable future.
71 I grant leave to the plaintiff to bring proceedings for damages in respect of his right shoulder injury arising from the transport accident on the said date. I dismiss the application by the plaintiff in respect of the permanent serious disfigurement.
Cost Orders
72 I propose to make the following order in respect of costs:
(1) The defendant is to pay the plaintiff’s costs to be assessed by the Costs Court including any reserved costs to be taxed on the County Court Scale in default of agreement.
(2) Certify counsel’s fee at $3,750 per day for two days and two hours of special conference at $375 per hour.
(3) Liberty to apply.
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