Helsham v Transport Accident Commission
[2013] VCC 323
•27 March 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-00515
| LORRAINE MARGARET HELSHAM | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 January 2013 | |
DATE OF JUDGMENT: | 27 March 2013 | |
CASE MAY BE CITED AS: | Helsham v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 323 | |
REASONS FOR JUDGMENT
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SUBJECT – TRANSPORT ACCIDENT
CATCHWORDS – Serious injury – injury to the right shoulder – pain and suffering only
LEGISLATION CITED – Transport Accident Act 1986, s93(4)(d), s93(6), s93(17)(a)
CASES CITED – Humphries & Anor v Poljak [1992] 2 VR 129; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Barlow v Hollis (2000) 30 MVR 441; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Petkovski v Galletti [1994] 1 VR 436; Guppy v Victorian WorkCover Authority [2010] VSCA 164; De Agostino v Leatch & Anor [2011] VSCA 249; Bezzina v Phi & Anor [2012] VSCA 161; Dahl & Anor v Grice [1981] VR 513; Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260.
JUDGMENT – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Moulds SC with Ms A Ryan | Rennick Briggs |
| For the Defendant | Mr G Lewis SC with Mr D Oldfield | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 5 May 2007 (“the transport accident”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraph (a) of the definition of “serious injury” to be found in s93(17) of the Act. There –
“serious injury means—
(a) serious long-term impairment or loss of a body function.”
4 The loss of body function relied upon in this application is the right shoulder.
5 The plaintiff seeks leave to issue proceedings at common law.
6 The plaintiff relied upon four affidavits: two sworn by her on 28 November 2011 and 22 January 2013, affidavits of Susan Howard sworn on 22 January 2013 and of Christopher Hart sworn on 23 January 2013. The plaintiff and Dr Ahern were cross-examined. I have not summarised the plaintiff’s affidavits or her evidence in cross-examination. However, I will refer to the plaintiff’s relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities:
(a)that the injury suffered by the plaintiff was as a result of the transport accident;
(b)that the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.
8 The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long term. The requirements of the test are set out in the decision of Humphries & Anor v Poljak[1] where the majority of the Court of Appeal said:
“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’.”[2]
[1][1992] 2 VR 129
[2] Humphries & Anor v Poljak (supra) at paragraph [140]
9 In determining the application, the Court must make the assessment of “serious injury” at the time the application is heard.[3]
[3] Humphries & Anor v Poljak (supra)
10 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[4]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[4][1998] 1 VR 702
11 The term “serious” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[5]
[5](supra) at paragraph 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. In particular, Chernov JA at paragraph [29]
12 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[6]
[6]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181at paragraph [44]
13 The wrongdoer must take the victim as he finds him or her; he must compensate only for the damage he has caused. Based on Petkovski v Galletti,[7] an analysis has to be made of the extent of impairment of the body function before and after the relevant injury and the additional impairment has to involve serious long-term impairment of body function.
[7][1994] 1 VR 436, and affirmed in Guppy v Victorian WorkCover Authority [2010] VSCA 164
14 Where the claimant has an injury with numerous consequences, he or she must establish, at the time of applying for leave, that the injury which has been caused by or is the result of the accident is a serious injury. Where there is an aggravation of a pre-existing impairment, the claimant must not only show that the aggravation injury is, in its consequences, a serious injury, but also that the aggravation injury is the result of the relevant accident.[8]
[8]De Agostino v Leatch & Anor [2011] VSCA 249 at paragraph [60]. See also Bezzina v Phi & Anor [2012] VSCA 161 at paragraph [23]
The Issues
15 The following issues were in dispute:
(i) whether the claimed injury was caused by the transport accident;
(ii) whether there is a “long term” impairment;
(iii) whether the consequences are “serious”.
The Plaintiff’s Medical Evidence
Dr S J Ahern
16 In November 2011, Dr Ahern, general practitioner, confirmed that he treated the plaintiff as a result of the transport accident from which she suffered persistent headache, neck and shoulder pain. She was off work and received treatment including physiotherapy, analgesics, including Panadeine Forte, and anti-inflammatory medication, including Feldene.
17 In mid-July 2007, the plaintiff returned to work for four hours per day every second day.
18 During 2008, the plaintiff complained of headache, pain and tiredness, and was working reduced hours.
19 By October 2010, the plaintiff complained of right shoulder pain and headaches. An ultrasound was performed, which revealed a small articular supraspinatus tear, subacromial bursitis and calcific subscapularis tendonitis.
20 In June 2011, a further ultrasound and x-ray were performed, which confirmed a chronic supraspinatus tendon tear and (mild) subacromial bursitis. An injection of Depo-Medrol (steroid) was administered and the plaintiff was referred to Mr Anthony Bonomo, orthopaedic surgeon.
21 In 2013, Dr Ahern said as a result of the surgery there had been some symptomatic improvement. He said the plaintiff continues to experience pain in her right shoulder and neck. The pain is worse when lying on her right side, which affects her sleep. She is restricted in her daily activities and work duties. He said her prognosis was guarded and that she will continue to experience pain. It was his view that the plaintiff’s right shoulder condition was related to her transport accident in May 2007, and he believed the accident exacerbated pre-existing degenerative changes in her neck and right shoulder.
22 Dr Ahern said with the benefit of hindsight and the ultrasound report which showed calcific tendinopathy of the supraspinatus, it was his view that there were factors at work which had probably been present for years and that the transport accident hastened the process.
23 In cross-examination, Dr Ahern agreed the plaintiff’s condition was an extremely common condition which given her age and level of activity, could be caused by everyday activity. He agreed before 2010 he had not recorded in his clinical notes complaints of shoulder pain. In re-examination, he said the plaintiff had virtually no symptoms in the right shoulder prior to the transport accident. Upon becoming more mobile, she became aware of right shoulder symptoms.
24 He agreed with Mr Simm, orthopaedic surgeon, that the plaintiff’s chronic symptoms mean that she will need to adapt her work duties and activities.
25 The medical records of Dr Wines, general practitioner, of Latrobe Medical Centre confirm that the plaintiff consulted him on two occasions in August and September 2007 at the request of her employer, the City of Darebin. She complained of pain across the top of her shoulders.
Mr Anthony Bonomo
26 Mr Bonomo, orthopaedic surgeon, saw the plaintiff on referral from her general practitioner in August 2011. He diagnosed a rotator cuff tendon tear and recommended surgical repair. In March 2012 the plaintiff underwent a right shoulder arthroscopy, biceps tendon release, subacromial decompression, bursectomy and rotator cuff repair.
27 Mr Bonomo last reviewed the plaintiff in May 2012 when she was allowed to resume light duties at work. He said comfort permitted, she could resume all usual activities.
28 In January 2013, Mr Bonomo said that the plaintiff’s shoulder problem is probably not the direct result of the transport accident but that the transport accident is likely to have made some contribution to the shoulder, given its proximity to the neck, which was also injured in the transport accident.
Associate Professor Myron Goldwasser
29 In August 2011, Associate Professor Goldwasser, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. Associate Professor Goldwasser said the plaintiff suffered an aggravation of a probable pre-existing degenerative change in the right shoulder rotator cuff as a result of the transport accident.
30 The plaintiff told Associate Professor Goldwasser that she noted pain in the back of the neck, extending to the right shoulder and arm, as far as the elbow. She initially attributed the pain as coming from the neck. However she became increasingly aware there was difficulty in using her right arm, raising it or holding it in a reaching position for a prolonged period of time and difficulty with overhead movements.
31 In November 2012, Professor Goldwasser said there had been significant but not complete improvement in the plaintiff’s condition following surgery, in that she had decreased levels of pain but there was still restriction of movement in her shoulder. He thought with time she may return to full-time duties. He thought it was too early to predict the degree of improvement that will occur but he would expect she would be left with residual impairment in the long term.
32 He accepted that the plaintiff could not enjoy her pre-injury activities such as renovating her home and gardening. She reported having difficulty getting dressed, cannot reach with her right arm behind her to tuck her shirt into her trousers and has difficulty attending to her hair because of the residual stiffness in her right shoulder.
33 Associate Professor Goldwasser said the plaintiff had significant impairment in her shoulder. He said her goal of returning to full-time duties may be reached, but that there would be restriction of function in the right shoulder, particularly with reaching activities, overhead use and heavy lifting. For this reason she would continue to use her right shoulder for limited periods with intermittent periods of rest.
Wilson Physiotherapy Group Pty Ltd
34 Mr John Wilson, physiotherapist, reported that he had treated the plaintiff since June 2011 for neck pain, low-back and right shoulder pain and weakness.
35 In December 2012, Mr Wilson said the plaintiff was recovering from surgery to her shoulder for the rotator cuff repair. Her arm had muscular weakness and pain. The weakness caused fatigue which limited exercise and activities. He expected there would be further improvement over the next twelve months.
The Defendant’s Medical Evidence
Melbourne Occupational Medicine Practice
36 In October 2007, Dr Phillip Mutton, occupational physician, examined the plaintiff at the request of the defendant. The plaintiff complained of symptoms to her neck only and was able to demonstrate a full range of movement in the shoulders in a pain-free manner. Dr Mutton diagnosed cervical injury – cervical whiplash, which was consistent with the mechanism of the transport accident. He reported that the plaintiff had returned to work 25 hours per week with restrictions and that she was a very active person, having involved herself in house renovations, which she had not been able to return to at the time of examination.
Mr Rodney Simm
37 In September 2012, Mr Simm, orthopaedic surgeon, examined the plaintiff at the request of the defendant. Mr Simm diagnosed an acceleration/ hyperextension injury to the cervical spine followed by chronic cervical pain and stiffness and referred pain to the right shoulder girdle. He said it was difficult to postulate how this could also injure the right shoulder and influence the clinical course of degenerative rotator cuff pathology, including rotator cuff tears. He reported that localisation of pain to the right shoulder occurred some considerable time after the accident and became problematic in 2011. Mr Simm said the rotator cuff pathology in the shoulder was due to constitutional factors. He accepted that she could not do those duties and hours due to the sequelae of the right shoulder condition. He accepted that the right shoulder injury interfered with her ability to do unrestricted domestic activities, in particular to dig and perform physical work in her garden.
Dr Jack Gurman
38 The clinical records of Dr Gurman, chiropractor, disclosed that the plaintiff was receiving chiropractic treatment prior to the transport accident from 2001 for lumbar pain and right hip. The records refer to right shoulder muscles being tight. After the transport accident she continued to receive treatment to her neck and back. There are a number of references to her right shoulder blade being sore or the muscles tight. In October 2009 there is a reference to her right shoulder blade being tight and her right arm being sore.
The Plaintiff’s Credit
39 The plaintiff presented as a hardworking woman who was keen to return to her work and daily activities of life. The plaintiff was on occasions hesitant and appeared stressed, but her evidence was straightforward and unembellished. There was no suggestion from any of the doctors whom she had seen that she was anything other than a straightforward person. There was no significant challenge to her general credibility other than her memory was poor; she could not recall being examined by Dr Mutton. I gained the impression that she was not used to being precise and the questions asked of her caused her frustration. I attributed her lack of memory and lack of detail to a lack of education. The plaintiff made concessions. She agreed that the statement in her affidavit that when she was taken to the Austin Hospital she was suffering from concussion and neck and shoulder pain radiating down her back was incorrect She said her concern at the time was neck pain. The plaintiff impressed me as a credible witness.
Analysis of the Evidence
40 Counsel for the defendant submitted the right shoulder injury was not caused by the transport accident. He principally relied on the medical evidence of Mr Simm and the lack of contemporaneous evidence of injury to the right shoulder at the time of the transport accident.
41 Mr Simm diagnosed an acceleration hyperextension injury to the cervical spine. Mr Simm said he could not see how the mechanism of the injury could injure the right shoulder or influence degenerative rotator cuff pathology in the right shoulder. He attributed the rotator cuff pathology in the shoulder to constitutional factors which he said was an extremely common condition. Mr Simm’s evidence was the minority view.
42 The majority of the medical witnesses (Dr Ahern, Mr Bonomo and Associate Professor Goldwasser) accepted that the right shoulder injury was causally connected to the transport accident.
43 I accept the view of the medical opinion expressed by the majority, that the right shoulder injury was causally connected to the transport accident. All doctors who expressed the majority view saw the plaintiff more than once, Mr Simm saw the plaintiff on one occasion. He did not consider whether the right shoulder was injured independently of the neck. He did not address the impact of the transport accident upon an asymptomatic pre-existing degenerative shoulder.
44 In addition, counsel for the defendant submitted Dr Ahern’s evidence was that the shoulder injury was “conceivably” or “could have” been the result of the accident. In those circumstances, the plaintiff has not established the relevant causation. The evidence of Dr Ahern was it was “entirely conceivable” with impact, that part of her body was traumatised and the accident could have accelerated the process of degeneration.[9] Further, the law is that experts are not required to establish a causal connection between the act and the injury to the requisite degree of probability; that is for the Court to decide as an ultimate issue, taking account of the evidence of experts as to the existence of a link between the medical condition and the act.[10] Accordingly, I do not accept the defendant’s submission in respect to Dr Ahern’s evidence.
[9]T63, L18-31
[10]Dahl & Anor v Grice [1981] VR 513 at 522
45 Counsel for the defendant submitted that the contemporaneous evidence made no mention of the shoulder injury. The plaintiff accepted that she did not report right shoulder pain at that time. This is consistent with the hospital discharge report, her Claim Form and what she told doctors whom she saw following the transport accident and what she told the Court.
46 The plaintiff said she thought it was a couple of months after she had removed the neck brace and when she returned to work and started to use her arm more, that she became aware of the shoulder pain. The evidence was that the plaintiff returned to work for several months on modified duties with a buddy. Then she returned to reduced hours so that there was a gradual resumption of activity before she was required to use her right arm.
47 The clinical records of the general practitioner make no reference to a right shoulder injury until October 2010 and the clinical records of the chiropractor refer to pain in the shoulder blade, not pain in the shoulder. The evidence of Dr Ahern was that symptoms produced by the torn tendons would not be in the area of the right shoulder blade.
48 Consequently, I accept that the plaintiff suffered an injury to her right shoulder as a consequence of the transport accident.
Aggravation of Pre-existing Injury
49 The medical evidence of Dr Ahern and Associate Professor Goldwasser is that the plaintiff suffered an aggravation of a pre-existing degenerative change in the right shoulder rotator cuff.
50 In respect to an aggravation of a pre-existing injury, Southwell and Teague JJ, in Petkovski v Galletti,[11] said that the task of the Court is to analyse the extent of the impairment of the body function before and after the relevant injury. The Court said:[12]
“The question of the relevance of the existence of a pre existing degenerative condition in the applicant's spine was raised both in the court below and in this court. It was submitted in both courts for the respondent that a comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of the additional impairment; if that additional impairment was not ‘serious’, so it was said, then leave must be refused.”
[11]supra
[12](supra) at 443
51 Where the injury for which compensation is claimed is an aggravation injury, the additional impairment must, itself, involve serious long-term impairment (or loss) of a body function.
52 Accordingly, I must consider what the evidence discloses as to the plaintiff’s prior condition, and determine whether the additional impairment resulting from the transport accident was serious.
53 There was no medical evidence that prior to the transport accident the plaintiff was complaining of right shoulder pain, other then the clinical records of the chiropractor referring to right shoulder blade on two occasions in January 2007. I accept at the time of the transport accident the plaintiff was symptom-free in respect to the right shoulder injury.
54 In determining the plaintiff’s impairment, I must make the assessment at the date of hearing. Accordingly, I will be assisted by the more recent medical opinions, in this case, the reports of Dr Ahern, Mr Bonomo and Associate Professor Goldwasser and Mr Simm.
55 Dr Ahern said the plaintiff had experienced some symptomatic improvement but continues to experience pain in her right shoulder. The pain is worse when she is lying on her right side and her sleep is affected. She was restricted in her daily activities and work duties. He expected that she would continue to experience ongoing pain. He agreed with Mr Simm that she has chronic symptoms and will need to adapt her work duties and daily activities to these symptoms. Whilst Mr Simm did not relate the shoulder injury to the transport accident, he accepted that her right shoulder injury would interfere with her ability to do unrestricted domestic activities, and in particular to dig and perform physical work in her garden.
56 Mr Bonomo had not reviewed the plaintiff since May 2012 and was aware that she was only able to resume light duties at work. He expected that, as comfort permitted, she could resume all her usual activities. The plaintiff’s evidence was that she has not been able to resume all her usual activities.
57 Associate Professor Goldwasser said the plaintiff had significant impairment in her shoulder. He expected that she would have some restriction of function in the right shoulder, particularly with reaching activities, overhead use and heavy lifting. He expected she would be left with residual impairment in the long term.
58 I must determine whether the consequences of the plaintiff’s injuries are of sufficient magnitude (more than significant or marked, and at least very considerable) to qualify as a serious injury.
59 The evidence of the plaintiff was that prior to the transport accident she had worked with the same employer since 1984, performing physical work. She worked 80 to 90 hours per fortnight (nine days per fortnight). The plaintiff, aged seventy, continues to work but has reduced her work commitment to six days per fortnight. She performs most of her work activities but with pain to her right shoulder. By the end of the day she is usually in significant pain and very tired. Her evidence was supported by a work colleague, Susan Howard.
60 Mr Simm said she was not currently able to return to the hours she worked pre-injury because of the sequelae of the right shoulder. Associate Professor Goldwasser said she might attain her personal goal of returning to full duties in the long term; however, he expected that she would be left with residual impairment in the long term.
61 I accept that the plaintiff has had to reduce her work hours as a result of the right shoulder injury.
62 As a result of her reduction in work hours, she is currently maintaining her income by using up her long service leave, the benefits of which she has lost because of her right shoulder injury. She had planned to use her long service leave entitlement to supplement the aged pension and her minimal superannuation upon retirement. She has now lost that capacity
63 I accept that that is a consequence which impacts upon her enjoyment of life, which I can take into account. I accept that she has retained the capacity for employment, but on a more restricted basis and with limited hours.
64 The plaintiff said that prior to the transport accident she was active and independent. She was actively involved in home renovation work from which she obtained great pride. She would regularly paint, pave and perform all aspects of house maintenance and gardening, both light and heavy. About the time of the accident, she was removing tiles from the kitchen and constructing a patio. As a result of the transport accident, she had to pay someone to finish the renovation work in her kitchen. Her son and grandson helped her complete the patio work. She supervised those activities and has performed little or no manual work because of the pain she suffers. Since the surgery, she has attempted to mow the lawns, using her left arm, but cannot do the job properly and her son has had to complete the task. She told a number of the doctors whom she saw of her home renovation activity and her frustration at not being able to perform those activities anymore.
65 The plaintiff’s evidence was supported by that of her son.
66 The plaintiff told the Court that her domestic life is affected. She can no longer vacuum. She has difficulty hanging her clothes on the clothesline and has adapted the clothesline to accommodate her shoulder injury. Changing the linen on her bed causes pain in her shoulder. She has difficult dressing and attending to her hair because of the stiffness in the right shoulder. Driving for extended periods causes pain in her shoulder and she requires breaks.
67 I accept that as a result of the transport accident, the plaintiff can no longer perform the activities performed prior to the accident, in particular, her home renovation work, gardening, and domestic activities. These are consequences which I can take into account.
68 The plaintiff continues to receive treatment for her right shoulder on a regular basis. She sees her general practitioner and is in receipt of physiotherapy. She requires medication of Nurofen daily and Panadol and Panadeine as necessary, but is reluctant to take stronger medication for fear of becoming dependent.
69 Her sleep is affected. The pain in the shoulder disrupts her sleep and often she has to get up and walk around. This was supported by the evidence of her son. She reported the difficulties with her sleep to a number of the doctors whom she saw. Mr Wilson, physiotherapist, said she would be unable to sleep on her right side.
70 I accept that the level of medication and her disrupted sleep are consequences of her shoulder injury.
71 I accept that the plaintiff presented as a stoic witness. Her approach and attitude to her shoulder injury was an indication of her stoicism, namely, she was living with her problem. In such a case, the objective “evidence of the disabling effect may be of less significance than usual”.[13] Accordingly, I must take this into account in considering the plaintiff’s evidence.
[13]Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260 at [37]
72 I am satisfied that the plaintiff is no longer able to perform full-time work, nor can she perform manual work without restrictions. She is limited to part-time work performing her duties in segments, having a break in between. In addition, she is not able to do the handyman activity that she performed prior to the accident. She can no longer work in her garden, as she did prior to the accident, digging and pruning. Now she does light weeding and is assisted by her son in lawn-mowing activities. Her activities of daily living have been altered to accommodate her right shoulder injury. Further, she now endures stiffness and pain from her right shoulder.
73 I am satisfied that it is fair to describe the pain and suffering consequences as being more than significant or marked and properly regarded as considerable when judged by comparison with other cases in the range. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s134AB(38)(h) of the Act.
74 The plaintiff, therefore, satisfies the narrative test for pain and suffering. In reaching that conclusion, I have made a comparison with other cases in the range of possible impairments.
Is the shoulder injury permanent?
75 I am satisfied that the shoulder injury is permanent, given the evidence from Mr Simm, Dr Ahern and Associate Professor Goldwasser. Associate Professor Goldwasser said it was too early to predict the degree of improvement that will occur but he expected that she would be left with residual impairment in the long term. He said she still had significant impairment in her shoulder and that most probably there would still be impairment in restriction of function in the right shoulder, particularly with reaching activities, overhead use and heavy lifting. Mr Simm, with whom Dr Ahern agreed, expected her to have chronic symptoms and that she would need to adapt her work duties and daily activities to these symptoms.
76 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages is successful.
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