Herrmann v Transport Accident Commission
[2024] VCC 859
•14 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-05858
| NADJA HERRMANN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 June 2024 | |
DATE OF JUDGMENT: | 14 June 2024 | |
CASE MAY BE CITED AS: | Herrmann v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 859 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to the left upper limb – credit not impugned – conflicting medical evidence – organic injury – other consequences sufficiently disentangled – borderline case – matters not to be taken on judicial notice
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Richards and Anor v Wylie (2001) 1 VR 79; Nichols and Anor v Robinson [2001] VSCA 11; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Woolworths Limited v Warfe [2013] VSCA 22; Palmer Tube Mills (Aust) Pty Ltd and Anor v Semi [1998] 4 VR 439; Johns v Oaktech Pty Ltd [2020] VSCA 10; Dougherty v Nationwide News Pty Ltd (1967) 86 WN (Pt 1) (NSW) 181; Anglo Czechoslovak and Prague Credit Bank v Janssen [1943] VLR 185; Haden Engineering Ptd Ltd v McKinnon [2010] VSCA 69
Judgment: The plaintiff is granted leave to bring proceedings for the recovery of damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Nathanielsz with Ms N Hanna | Slater and Gordon |
| For the Defendant | Ms J Zhu | Solicitors to the Transport Accident Commission |
HER HONOUR:
Introduction
1This is an application by Ms Nadja Herrmann for leave to commence proceedings for the recovery of damages pursuant to section 93 of the Transport Accident Act 1986 (“the Act”) in respect of an upper left limb injury sustained in a transport accident on 28 May 2020.
2On 28 May 2020, Ms Herrmann was riding her bicycle in the designated lane, along Chapel Street in South Yarra. A driver opened a car door in front of Ms Herrmann, knocking her off her bicycle and causing her to fall to the ground on her left side. This caused pain and swelling in her left hand.
3The driver took Ms Herrmann to the hospital where investigations of the left hand were carried out. No fracture was identified and Ms Herrmann was discharged.
4From 11 June 2020, Ms Herrmann also experienced left shoulder pain from around the time of the accident and consulted Dr Paul Harms, a general practitioner, (“GP”) about it.
5In August 2020, Ms Herrmann underwent surgery to the left hand, performed by Mr Nicholas Houseman. She continued to attend her GP and complain of left shoulder pain and restricted range of motion.
6In June 2021, Ms Herrmann commenced physiotherapy to address the shoulder problem. This treatment continued until funding for it was ceased in January 2023. Ms Herrmann resumed the physiotherapy in 2024 when the Transport Accident Commission (“TAC”) agreed to fund 18 further sessions.
7In October 2021, Ms Herrmann underwent a cortisone injection into the right shoulder, knowing that she was allergic to cortisone. The injection offered some relief from the pain but was accompanied by a severe allergic reaction and further injections are not recommended.
8Ms Herrmann’s treating shoulder specialist, Mr Csongvay, has diagnosed an anterior superior labral defect in the left shoulder joint with increased signal mild acromioclavicular degenerative changes with subchondral cysts and joint irregularity but no abnormality of the rotator cuff. Mr Csongvay recommended arthroscopic surgery to repair the labral defect with possible bicep tenotomy and tenodesis.
9Ms Hermann has a back condition which existed prior to the transport accident which she manages conservatively with exercise and chiropractic therapies.
The hearing
10The hearing proceeded in the usual way. Ms Herrmann was the only witness to give oral evidence and be cross-examined. The parties otherwise tendered various reports and materials from their respective court books.[1]
[1]Progress notes of the treating GP were tendered but neither party relied on these in submissions. No reference was made in the defendant’s submissions to progress notes and Ms Herrmann was not cross-examined about the photographs in the defendant’s court book which have also been tendered.
Issues in dispute
11There was no dispute that Ms Herrmann sustained an injury to her left (non-dominant) upper limb in the transport accident. The only issue in dispute was whether the injury is serious as defined in the Act. The defendant made no submissions about Ms Herrmann’s credibility or reliability, and in particular, did not suggest Ms Herrmann was exaggerating her symptoms.[2]
[2]Transcript (“T”) 40
12Although the plaintiff opened her case on the basis of the injury to the left hand and shoulder, as the case developed, the focus by both parties was on the consequences arising from the shoulder injury. Counsel for the defendant made no submissions in opposition to the plaintiff’s reliance on the hand and shoulder together.[3]
[3]T47
The relevant legal principles
13The legal principles are well known and not in dispute.
14In summary, the Court must not give leave unless it is satisfied, on the balance of probabilities, that the left upper limb injury is a “serious injury.[4]
[4] Pursuant to s93(6) of the Act
15The requirements of the test were set out in Humphreys and Anor v Poljak:[5]
“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.’”
[5][1992] 2 VR 129 at 140
16“Serious injury”, as defined in sub-paragraph (a), can have its seriousness measured, in part, by a mental response to a physical impairment. However, the mental disorder cannot, itself, constitute or be the producer of the impairment of a body function.[6]
[6]Richards and Anor v Wylie (2001) 1 VR 79
17An assessment as to whether an injury is “serious” when measured against the criteria laid down in the authorities is a task which involves a value judgement,[7] opinion or impression in which the reasons for judgment may be properly or relatively brief and non-exhaustive, without voluminous discussion of authorities or lengthy expositions of well-understood criteria.[8]
[7]Nichols and Anor v Robinson [2001] VSCA 11 per Winneke P at paragraph [14]
[8]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, cited with approval in Woolworths Limited v Warfe [2013] VSCA 22 at paragraphs [129] to [131]
Summary of findings
18For reasons which follow, I am satisfied that the consequences of the left upper limb injury are serious for Ms Herrmann. Those consequences relate to both pain and suffering, being pain and restrictions upon her daily and recreational activities, and pecuniary loss, being restrictions in the photography work she can do, the length of time she can do it and now having to hire an assistant to perform some of the heavier part of her duties as a photographer.
19I am satisfied that when judged by the rage of possible impairments, Ms Herrmann’s left upper limb injury can be fairly described as at least very considerable and certainly more than significant or marked.
Background
20Ms Herrmann was born in Germany in 1979 and is currently 45 years of age.
21In Germany, after she finished high school, Ms Herrmann undertook an apprenticeship in business accounting and management. Sometime later, she obtained a Certificate in Economics and Print Media Management Studies at university. She has worked in Malaysia, America and Germany for Mercedes-Benz and in Malaysia for a German IT-based company.
22In January 2017, Ms Herrmann came to Australia on a student visa. She has completed a Certificate IV and a Diploma in photography.
23At the time of the transport accident, Ms Herrmann was undertaking an advanced Diploma in Marketing and Leadership and Management at Greystone College. This required studying full-time for two years. Ms Herrmann was able to complete that Diploma after the accident.[9] While studying and during the Pandemic, Ms Herrmann was supporting herself by working as an Uber Eats delivery rider, on her bicycle.[10] She did not return to this work after he accident, instead she focussed on developing her photography business.
[9]T18
[10]Plaintiff’s Court Book (“PCB”) 12 at paragraph [3]; T20
24Ms Herrmann is a professional photographer. She has her own business photographing children in kindergartens and childcare centres. This work involves carrying backdrops and heavy equipment and setting it up at the location.[11] She also performs editing of the photographs on a computer. Alongside the self-employment, Ms Herrmann performs freelance work for companies which provide university graduation photography services in Australia and in Malaysia. She frequently travels interstate and overseas to Malaysia to perform this contract work.[12]
[11]PCB 144
[12]T15-16
25After the accident, Ms Herrmann was unable to return to the photography work for about six months. She initially returned to work on limited hours and gradually built them up, however the hours vary depending on the demands of the business and the freelance clients.[13]
[13]T14
The plaintiff’s credit and evidence
26In an application such as this, the credit of the plaintiff is often of great importance, both directly and indirectly.
27The opinions of medical witnesses and other experts depend upon what they have been told by a plaintiff and upon her behaviour and performance on examination and on testing.[14]
[14]Palmer Tube Mills (Aust) Pty Ltd and Anor v Semi [1998] 4 VR 439 at 448 per Brooking JA; Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]
28Credit is also important because the Court must be satisfied of the alleged consequences and their impact on the plaintiff’s residual capacity.
29There was no attack on Ms Herrmann’s credit or reliability. It was not suggested she exaggerated any of her symptoms or consequences. She was not challenged on any of her alleged consequences or restrictions, nor were any alleged inconsistencies between her evidence and the histories recorded by doctors put to her.
30I consider Ms Herrmann was a straightforward witness. She gave direct and responsive answers to questions asked of her. She took her time to consider her answer where dates were required, which I consider was an attempt to be as accurate as possible. I accept her evidence about the impact of the left upper limb injury on her work, daily life and recreational activities.
31Ms Herrmann deposed to and was cross-examined about the consequences of her left upper limb injury. She gave the following evidence:
(a) constant pain, restriction and weakness in the left shoulder, radiating to the base of the neck and down the shoulder blade and difficulty pushing, pulling and lifting with the left arm;
(b) sleep is affected by shoulder pain. Ms Herrmann places pillows under her arm and behind her back to try to stop from turning onto her left side when she sleeps and finds it very difficult to get comfortable at night;[15]
[15]PCB 10 at paragraph [26]; T28
(c) allergic reaction to a cortisone injection into the left shoulder with fever-like symptoms, sunburn [like] skin breakouts that resulted in blisters on [her] entire upper body (on a background of previous allergic reaction to cortisone when in Germany);[16]
[16]PCB 14 at paragraph [10]
(d) sitting for prolonged periods in the same position makes the left shoulder symptoms worse which affects her on trips back to Germany to visit her family;[17]
(e) household chores have to be spaced out over the day on account of the left shoulder;[18]
(f) restrictions on ability to engage in camping and rock-climbing. In relation to the camping, inability to go on multi-day hikes as she is unable to carry a heavy back pack[19] and Ms Herrmann now finds sleeping in the camp on the ground uncomfortable;[20]
(g) inability to ride her bike as it is too painful on her shoulder to ride on the street or over a pothole;[21]
(h) impact on her work as a photographer as she has to carry heavy equipment and set up, which involves overhead work. The weight of the camera in her left hand exacerbates her shoulder pain; retouching images on the computer involves six hours in front of a computer, which increases the pain in her left hand; and she wears a splint to avoid accidentally hitting the left hand;[22]
(i) pain and weakness in the left hand in the fourth and fifth fingers and needing to use a splint when using heavy [photography] gear to keep it from getting knocked;[23]
(j) difficulty putting on clothing;
(k) being limited to driving an automatic car because of pain in the left shoulder and inability to change gears;
(l) although she has been able to return to rock climbing which she now does once or twice a month, she has had to alter her technique and now predominantly uses her right arm and can no longer hang on or pull on the left arm; and
(m) inability to work alone in her business as a self-employed children’s photographer and needing to hire an assistant to help with equipment and with carrying the children. The cost of the assistant is about $10,000 per year which is about 20% of her earnings.[24]
[17]PCB 14 at paragraph [9]
[18]PCB 10 at paragraph [27]
[19]PCB 16 at paragraph [22] and PCB 28 at paragraph [28]; T25-26
[20]T36
[21]PCB 16 at paragraph [23]; T37
[22]PCB 10-11; T17
[23]PCB 15
[24]PCB 17 at paragraph [24]; T17
32Ms Herrmann deposed to the following treatment:
(a) weekly physiotherapy funded by the TAC up until January 2023 when funding was withdrawn and recommencing some time in 2024 for 18 sessions;[25]
(b) self-funded acupuncture, chiropractic and massage;[26]
(c) attendances on her GP Dr Paul Harms;
(d) Mobic, Celebrex, Voltaren tablets and pain-killers. In the past she had also taken Lyrica;[27]
(e) surgery to the left hand performed by Mr Nicholas Houseman;
(f) consultation with a pain management physician Dr Slon; and
(g) attendances on a specialist shoulder surgeon Mr Csongvay who has recommended surgery, but she feels unable to undertake it as she would have no assistance in the post-surgery recovery period, and also because she fears that the surgery is not guaranteed to help with her symptoms.[28]
[25]PCB 14-15 and PCB 146; T24
[26]PCB 14 at paragraph [12]
[27]PCB 3 at paragraph [19] and PCB 15 at paragraph [13]
[28]PCB 15 at paragraph [14] and PCB 56
33I have considered the medical evidence tendered by both parties. I do not intend to summarise that evidence in detail. Rather, I will highlight what I consider to be the important aspects of the evidence in light of the issues raised by the parties.
Treating medical practitioners
Ms Maria Carreno – Physiotherapist
34On 8 February 2024, Ms Carreno provided a report confirming that Ms Herrmann had been attending since 2021 with left-sided shoulder pain and hand pain and restricted range of movement. Due to the physical tasks associated with her work, at times, her shoulder pain would be excruciating. Despite strength and conditioning training, her pain remained unresolved when the TAC finding ceased in January 2023.[29]
[29]PCB 65
Dr Paul Harms – General Practitioner
35Dr Harms provided a number of reports to the plaintiff’s solicitors.[30] In his most recent report, Dr Harms confirmed he had been treating Ms Herrmann since 11 June 2020 for her transport accident injures. Dr Harms reported that at no time did he consider Ms Herrmann was fit to resume her usual duties full-time. In particular, Dr Harms considered that Ms Herrmann’s disabilities have remained significant, her left hand was weak and painful and the 4th and 5th digits were numb. Her left shoulder was painful and she required ongoing NSAIDs . The cortisone injection she received caused her to have a significant allergic reaction, ruling out further treatment with cortisone. She will have ongoing long-term restrictions.[31]
[30]Reports dated 20 July 2021, 20 May 2022 and 29 February 2024
[31]PCB 53
Mr Nicholas D Houseman – Plastic and Reconstructive surgeon
36On 25 August 2020, Mr Houseman performed hand surgery on Ms Herrmann’s left hand. The surgery involved reattachment of the collateral ligament and a reconstruction of the ring finger MCP joint. During the operation, Mr Houseman found a small intra-articular fracture at the base of the left little finger and removed some loose bone.[32]
[32]PCB 35 and PCB 51
37On 2 September 2020, Mr Houseman reported to Ms Herrmann’s GP that he anticipated a good long-term result from the surgery.[33] No other post-surgery reports were tendered.
[33]PCB 51
Mr Steve Csongvay – Orthopaedic Upper Limb Surgeon
38Ms Herrmann was referred to Mr Csongvay by Dr Harms. At the time of the initial consultation in August 2020, the ultrasound and X-rays from June 2020 showed only some biceps tendinitis and no other significant pathology.
39Mr Csongvay considered the MRI dated 22 December 2020 showed:
“an anterior superior labral defect in her shoulder joint with an increased signal, mild acromio-clavicular degenerative changes with subchondral cysts and joint irregularity but no abnormality of the rotator cuff”.[34]
[34]PCB 68 – the MRI report dated 22 December 2020 at PCB 74 specifically states “no labral tear”. It is probable that Mr Csongvay actually looked at the film when he provided this opinion.
40Mr Csongvay discussed the potential for surgery in the context of the findings and Ms Herrmann’s allergic reaction to the cortisone injection. The surgery would allow assessment of the injury to the labrum, and if necessary perform a repair of the labrum with or without bicep tenotomy and tenodesis.[35]
[35]PCB 68-69
41In February 2023, a repeat MRI scan was carried out on Mr Csongvay’s recommendation. Mr Csongvay reported that the MRI showed:
“ongoing acromioclavicular joint inflammation and progressive degeneration in association with an anterior superior labral defect”.[36]
[36]The MRI report dated 20 February 2023 (PCB 78) again specifically states “no labral tear”. The radiologist was Dr Frank Malara. It is likely Mr Csongvay actually looked at the film when he provided this opinion.
42He recommended surgery in the form of shoulder arthroscopy, excision of the outer end of the clavicle with stabilisation and likely need for a repair of the anterior labrum and possibly a biceps tenotomy and tenodesis.
43Mr Csongvay reported that Ms Herrmann “has a significant level of pain and distress” and was precluded and restricted in relation to her employment and activities that involve pushing, pulling, lifting and repetitive or prolonged use of the left upper limb and overhead activities. If her symptoms remained the same, she would not be fit for normal pre-injury duties but she had a capacity for modified duties on restricted hours which was likely to be permanent. She was limited with regards to rock-climbing activities due to pain and weakness in the left upper arm.
44Ms Herrmann deposed to her reluctance to have the surgery recommended by Mr Csongvay, so she saw Dr Slon.[37]
[37]PCB 14 at paragraph [11]
Dr Barry Slon – Specialist Pain Medicine Physician
45Ms Herrmann saw Dr Slon on 24 May 2023. Dr Slon referred her to Melbourne Shoulder Group for physiotherapy. Ms Herrmann said in oral evidence, that Dr Slon changed her medication to Mobic.[38]
[38]T13-14
46Dr Slon reported that she was tender over the left AC joint but other than that, there was little to find on examination. He considered she was developing arthritis.[39]
[39]PCB 81
The plaintiff’s medico-legal reports
Mr Ash Moaveni – Consultant Orthopaedic Surgeon
47Mr Moaveni provided two reports to the plaintiff’s solicitors.
48On 3 May 2023, Mr Moaveni provided his first report. His examination of Ms Herrmann’s left shoulder showed:
“tenderness over the left AC joint with a positive cross arm adduction test, consistent with AC joint injury…. [and a restricted range of motion]”.[40]
[40]PCB 115
49Mr Moaveni diagnosed a soft tissue injury to the left shoulder with an aggravation of left AC joint osteoarthritis (and also lumbar and spine spondylosis).[41]
[41]PCB 117
50Mr Moaveni considered Ms Herrmann would require ongoing physiotherapy and, depending on her ongoing symptoms, may also need a shoulder arthroscopy, excision and stabilisation of the outer end clavicle with or without labrum and biceps surgery.
51On 27 March 2024, Mr Moaveni reported in relation to the opinion of Dr Anthony Menz dated 6 July 2023[42] and on treatment since his last report.
[42]This opinion is discussed at paragraphs [63] to [69] of this judgment
52Ms Herrmann had undergone self-funded weekly myotherapy and chiropractic treatment predominantly for the neck, upper back and left upper extremity. She was taking Meloxicam most evenings to help her sleep and had reduced her daytime activities to manage her pain levels. In her work with children, she spent the majority of her time on the floor using her left arm to support herself which causes increased shoulder pain. Work at the computer retouching images also causes increase of pain in the left hand and arm. Her left shoulder pain is constant but varies in intensity.
53On examination, Mr Moaveni noted no abnormal illness behaviour or excessive or inadequate response to symptoms. She was tender over the left AC joint, and provocative tests, including the cross-arm adduction test, reproduced pain consistent with an AC joint injury. Range of motion was restricted. She was tender over the fourth web-space of her left hand.
54Significantly, Mr Moaveni reproduced photographs from the MRI film taken on 20 February 2023 and circled the areas on the image which showed AC joint arthritis, a superior labral tear and the anterior superior labral defect with inflammation which had also been “highlighted in Mr Csongvay’s GP letter, dated 21 February 2023.[43]
[43]PCB 134
55Mr Moaveni reported that the images demonstrate that Dr Anthony Menz’ opinion is not supported by the imaging. Later in this judgment[44], I address the difference of opinion between the plaintiff’s treating surgeon Mr Csongvay, supported by Mr Moaveni, and the defendant’s experts Mr Menz and Mr Joshi.
[44]At paragraphs [81] to [83]
56Mr Moaveni’s opinion on Ms Herrmann’s ongoing restrictions is in line with that of Mr Csongvay. In summary, he concluded that Ms Herrmann would be restricted in relation to employment in activities involving pushing, pulling and lifting as well as repetitive use of the upper extremity. He considered the extent of her restriction to be significant and permanent. Use of the camera with her left hand to carry, hold and stabilise can aggravate the left upper limb symptoms.[45] The arthritis in her left shoulder can deteriorate in the long term resulting in increasing pain and reduced function of the left shoulder and cervical spine.
[45]PCB 119
Dr Khayyam Altaf – Occupational Physician
57On 18 April 2024, Dr Altaf provided a medical report to Ms Herrmann’s solicitors. Dr Altaf noted a history of constant pain in the left shoulder which worsened with normal everyday movements and a restriction in her recreational activities such as cycling, rock climbing and multi-day hiking/camping trips. Although she had returned to rock climbing, this was now limited to once or twice a month and she avoids climbs that strain her left side.[46]
[46]PCB 147
58On examination, Mr Altaf found tenderness at the acromioclavicular joint and non-specific tenderness in the left hand over the region of the injury and a mild deformity in the little finger.
59Dr Altaf considered the treating doctor reports and the investigation reports and diagnosed left shoulder mechanical pain due to labral injury and an aggravation of previously asymptomatic AC joint degeneration with ongoing shoulder dysfunction.[47]
[47]PCB 152
60Dr Altaf also provided comment on the divergence of opinion between Doctors Csongvay/Moaveni and Menz/Joshi. In particular, Dr Altaf said:
“It appears other orthopaedic surgeons including Dr Menz appear to have commented on the radiological reports, but Mr Csongvay had reviewed the films, and given his expertise as an orthopaedic surgeon who had also examined your client, I expect it is plausible that there may have been changes visible that a radiologist may not have identified without the benefit of a patient examination and experience of direct shoulder surgery, hence I prefer the radiological interpretation of Mr Csongvay.”[48]
[48]PCB 153
61Dr Altaf reported that Ms Herrmann was restricted from her pre and post-injury duties and unfit to perform her duties as a photographer in an unrestricted fashion without modifications or support from others:
“Her ability to work is limited, requiring her to adopt a one-week-on, one-week-off schedule to maintain her client base and work in a self-paced manner taking rest breaks as and when required. She should also limit her working hours to four hours per day, three non-consecutive days per week.”[49]
[49]PCB 154
The defendant’s medico-legal reports
Mr Anthony Menz – Consultant Orthopaedic Surgeon
62Mr Menz provided three reports.
63On 26 September 2022, after examining Ms Herrmann, Mr Menz reported that although she had a full range of movement in abduction and flexion, it was accompanied by pain in the last 30 degrees on each movement. He took into account the reports[50] of an ultrasound dated 11 June 2020, and MRI of the left hand dated 3 July 2020 and an MRI of the left shoulder dated 22 December 2020. That MRI report concluded that there was no tendinopathy, no tear, no subacromial bursitis and no labral tear in the left shoulder.
[50]In closing address, counsel for the defendant did not persist with a submission that Mr Menz had been provided with the actual imaging, see T109-110.
64Mr Menz diagnosed a soft tissue injury to the left shoulder and a tear of the MCP ligament on the ulnar side of her ring finger and a minor fracture at the base of the proximal phalanx of the middle finger.
65Significantly, Mr Menz considered Ms Herrmann was continuing to have a painful left shoulder some 18 months after the accident, but this was unexplained by the MRI report. Her work as a photographer was affected by the left shoulder and she was only working 15-20 hours a week because of it. The prognosis for the left shoulder was guarded given the symptoms had persisted despite ongoing physiotherapy, but the prognosis for the left hand was good.[51]
[51]Defendant’s Court Book (“DCB”) 11
66On 31 October 2022, Mr Menz provided a supplementary report in response to a request from the TAC. He did not examine Ms Hermann again and only reviewed his notes and previous report. He changed his opinion.
67Without explaining his reasons, Mr Menz now reported that:
“Ms Herrmann does not continue to suffer from an organic physical injury arising from the transport accident… [and] does have capacity for full pre-injury form of work duty. …”[52]
[52]DCB 17
68On 6 July 2023, Mr Menz, again without examining Ms Herrmann, reported that she no longer continues to suffer from an organic physical injury. Any ongoing symptoms were attributable to her pre-existing acromioclavicular joint arthritis.
69Mr Menz relied on the MRI reports dated 22 December 2020 and 21 February 2023 which he considered showed no traumatic injury to the shoulder at all. Mr Menz commented that Mr Csongvay was wrong to find a labral defect and wrong to offer surgical intervention.[53]
[53]DCB 20-21
Mr Sanjay Joshi – Consultant Orthopaedic Surgeon
70On 2 May 2024, after examining Ms Herrmann, Mr Joshi provided a report to the TAC. Like Mr Menz, Mr Joshi took into account the MRI reports dated 22 December 2020 and 21 February 2023.[54]
[54]DCB 37, being a list of the documents provided to Mr Joshi. There is no reference to “film”. It appears only the reports were provided.
71On examination, Mr Joshi found that Ms Herrmann had tenderness over the left acromioclavicular joint and anteriorly over the biceps tendon. The rotator cuff strength was normal. The impingement signs were negative and the biceps provocation test was negative. In the left hand, there was a notable finding of loss of abduction by about 50% compared to the opposite hand at the MP joint of the left little finger.
72Mr Joshi diagnosed a ligamentous injury and a small avulsion fracture of the left little finger metacarpophalangeal joint and a soft tissue injury to the left shoulder.
73Like Mr Menz, Mr Joshi reported that the imaging did not show any injury-related finding. However, the ongoing pain and limitation reported by Ms Herrmann meant that her prognosis was guarded.[55]
[55]DCB 30-31
Other relevant evidence
74Ms Herrmann tendered an affidavit from her friend and assistant, Ms Nada Stokic. Ms Stokic deposed to observing Ms Herrmann experiencing difficulty with putting on clothing, carrying a bag over her shoulder, struggling to hold a camera with her left hand and with holding her elbow higher than 90 degrees.[56] This evidence was not challenged.
[56]PCB 19-21
75Ms Herrmann also tendered a summary of her individual tax returns.[57] No cross-examination on this document was conducted, but counsel for the defendant submitted that Ms Herrmann’s income had remained relatively stable over the years.[58]
[57]PCB 159
[58]T51-52
Issues and submissions
Defendant’s submissions
76Counsel for the defendant submitted that:
(a) even if the Court accepted everything Ms Herrmann said about the consequences to her of the injury, she has not established that her injury, when judged by comparison to other cases in the range of possible impairments, is serious. Her symptoms and consequences can only be described as very mild;[59]
(b) Ms Herrmann only required physiotherapy treatment and that was sufficient for her to be able to do all her activities. Even if surgery was required, she has declined it;[60]
(c) Mr Joshi considered that there are no injury-related findings shown on the radiological investigations[61] and there is no indication for surgery;[62]
(d) Mr Menz considered the only finding to be acromioclavicular joint arthritis which predated the transport accident and otherwise (based on the MRU reports) Ms Herrmann did not continue to suffer from any organic physical injury arising from the accident and there was no indication for surgery;[63]
(e) Ms Herrmann’s ability to return to rock climbing was significant. While she could not do it at the same level as before the accident, she was still able to go both indoor and outdoor rock climbing and enjoy the social aspects of that activity;[64]
(f) While Ms Herrmann might need an assistant from time to time, the assistant was not required all the time;[65] further, that in the 2023 financial year her income had been $21,000, and after expenses she was still able to derive $10,000;[66] and
(g) Ms Herrmann had not disentangled the consequences which flow from the neck and those which flow from the left upper limb, and her back condition was much more serious because when she had flare-ups she could not get out of bed and could not work.[67]
[59]T40 and T48
[60]T59-60
[61]T44
[62]T55
[63]T47, T54 and T57
[64]T48
[65]T49-50
[66]T51-52
[67]T60-64
Plaintiff’s submissions
77Counsel for the plaintiff submitted that:
(a) Ms Herrmann had been reluctant to have surgery because there was no guarantee it would fix her pain and she had no assistance for the recovery period;[68]
[68]T69
(b) Ms Herrmann’s election to have the cortisone injection knowing she was allergic bespeaks of the severity of her pain;[69]
[69]T69
(c) Ms Herrmann has continued to have [weekly] physiotherapy since the transport accident in 2020, to the date of the hearing (June 2024), with a short break when the TAC withdrew funding.[70] The duration of the weekly physiotherapy treatment indicates that the impairment consequences rise to the level of more than marked and at least very considerable[71] as it was very onerous to have to attend each week for so many years;
(d) Ms Herrmann is on long-term prescription medication (Celebrex/Mobic) in respect of the left upper limb which is a serious consequence as her doctor indicated prolonged use was not advised[72];
(e) Mr Csongvay predicted that the acromioclavicular joint degenerative changes were very likely to progress over time and to continue to lead to discomfort and irritability around the shoulder joint…she is likely to become more symptomatic as the arthritis progresses;[73]
(f) Mr Csongvay provided his prognosis and recommendation for surgery on the basis of his clinical examination as well as the actual films of the MRI scans, not just the reports;[74]
(g) Mr Moaveni also considered the actual films and included extracts of the imaging in his report. His opinion accords with and supports the opinion of Mr Csongvay;[75] and
(h) The opinions of doctors Menz and Joshi should be given little weight for the following reasons:
(i)their opinions are based on two MRI reports, not the scans themselves;
(ii)Mr Menz’ opinion contained internal inconsistencies;
(iii)Their specialisations are not specific to the upper limbs like Mr Csongvay.
[70]T72
[71]Ibid
[72]T84
[73]T74
[74]T77
[75]T75-76
Analysis
78The position of the parties can be considered in three broad categories:
(a) whether Ms Herrmann has established that she is currently affected by an organic injury to the shoulder arising from the transport accident;
(b) whether Ms Herrmann has disentangled the consequences of the left upper limb from the consequences of the neck and lower back; and
(c) whether the impairment consequences of the left shoulder condition meet the statutory test either alone or in combination with the consequences of the left hand injury.
Is Ms Herrmann affected by an organic injury to her left shoulder arising from the transport accident?
79Ms Herrmann relied on the opinions of Mr Csongvay and Mr Moaveni in support of the submission that she suffered a traumatic injury to her left shoulder, which (it was submitted) was clearly visible on the imaging and was likely missed by the radiologist (Dr Frank Malara).
80The defendant relied heavily on the opinions of Mr Menz and Mr Joshi, both of whom considered two MRI reports and provided an opinion that Ms Herrmann was not affected by any traumatic injury to the left shoulder as none was apparently visible to the radiologist who prepared the reports (Dr Frank Malara).
81For the following reasons, I prefer the opinions of Mr Csongvay Mr Moaveni:
(a) although Mr Csongvay’s report itself does not specifically refer to having observed the films of the scans, for a number of reasons it is more probable than not, that he did:
(i)Mr Csongvay is a specialist upper limb surgeon who assessed Ms Herrmann on multiple occasions and ordered the second MRI.[76] It makes sense that he would look at the imaging he ordered, especially in circumstances where the report of that imaging shows no tear or rotator cuff injury but his patient continued to complain of pain;
(ii)Mr Csongvay’s opinion on the labral defect injury and trauma to the acromioclavicular joint was consistent with that of Mr Moaveni who reproduced a portion of the film in his report and circled or isolated those very injuries on the film.[77] It is improbable that Mr Csongvay could diagnose injuries in the absence of the films which injuries are visible to another expert who had regard to the films; and
(iii)Dr Altaf, who considered the reports of Mr Menz, Mr Joshi, Mr Moaveni and Mr Csongvay, specifically stated that Mr Csongvay had seen the films. Dr Altaf also said that it was plausible that the radiologist who provided the MRI reports may not have been able to identify the changes as he was not an experienced shoulder surgeon and may not have had the benefit of an examination.[78]
[76]PCB 78
[77]PCB 69-70 and PCB 134
[78]PCB 153
82Taking into account the evidence as a whole, including the examination findings of all four experts, I give little weight to the opinions of Mr Menz and Mr Joshi for the following reasons:
(a) counsel for the defendant appropriately conceded that both Mr Menz and Mr Joshi had received only the reports themselves and not the actual films;[79]
(b) although Mr Joshi referred to a report of Mr Moaveni, that was his first report and there is no evidence that Mr Joshi ever saw the second report containing a reproduction of the film;
(c) Neither of these experts is an upper limb specialist like Mr Csongvay. Mr Menz is a lower limb specialist[80] and Mr Joshi appears to have a more generalised specialisation as an orthopaedic surgeon; however, his CV was not included in his report; and
(d) there is an internal inconsistency in the reports of Mr Menz which is not adequately explained:
(i)in his first report[81] based on an examination of Ms Herrmann, Mr Menz diagnosed a soft tissue injury to the left shoulder. He considered that injury was producing pain and restrictions;[82]
(ii)one month later, without examining Ms Herrmann, Mr Menz changed his opinion, reporting that Ms Herrmann does not continue to suffer from any organic physical injury. There is no explanation or path of reasoning for this change and Mr Menz did not receive any additional films of investigations; and
(iii)in his third report, Mr Menz confirmed his revised opinion without reference to his original opinion of soft tissue injury and without explanation for the change of opinion.
[79]T109
[80]DCB 15
[81]DCB 5, dated 26 September 2022
[82]DCB 8-9
83Taking the whole of the evidence on the question of organic injury to the shoulder into account, I find that Ms Herrmann did suffer and continues to suffer from the effects of a traumatic injury to her left shoulder as diagnosed by Mr Csongvay.
Has Ms Herrmann disentangled the consequences of her left upper limb injury from any consequences of her neck and lower back?
84Counsel for the defendant submitted that some of the consequences Ms Herrmann attributed to the shoulder were also attributable to a condition of her neck: in particular, the effect on hiking and outdoor activities and the effect on her work as a photographer.[83] However, counsel for the defendant specifically stated that there was no injury to the neck.[84]
[83]T61-62
[84]T61, Lines (“L”) 1-4
85A second limb of the defendant’s argument was that Ms Herrmann has a back injury which is far more serious and would also impact on her work. The argument was put on the basis that the shoulder was not as severe as the back (in comparison it was quite mild) because it has not put her out of work and does not prevent her from building her business, whereas when her back flares up she may be unable to get out of bed and unable to go to work.[85]
[85]T63-64
86Counsel for the defendant submitted that Ms Herrmann’s inability to sleep and her need for an assistant were attributable in part to her back condition. I am unable to accept this submission as Ms Herrmann was never asked about these matters. Further, the unchallenged evidence of Ms Herrmann does not support them. For example:
(a) pushing, pulling and lifting with my left arm causes an increase in my left shoulder pain;[86]
(b) the pain from my neck goes into my shoulder;[87]
(c) my left shoulder affects my sleep (I have to use pillows to stop from turning);[88]
(d) I have constant ongoing pain in my neck, left shoulder and hand;[89] and
(e) the weight on my camera is always on my left hand and shoulder…and exacerbates my shoulder pain;[90]
[86]PCB 10 at paragraph [22]
[87]PCB 10 at paragraph [24]
[88]PCB 10
[89]PCB 9 at paragraph [14]
[90]PCB 10 at paragraph [28]
87Counsel for Ms Herrmann submitted that the affidavits adequately disentangled the consequences of the neck and shoulder:
“If I had injured just my left arm in this transport accident, and had injured my neck, I believe I would be impaired in much the same way as I am now with respect to the aforementioned restrictions. If I had injured my neck alone, and not my left arm, while it would be bothersome, I do not believe that I would be as restricted as I am currently.
Similarly, if I had not injured my back, and if I was left with just my left arm injury in this transport accident, I believe I would be impaired in much the same way as I am now with respect to the aforementioned restrictions.”[91]
[91]PCB 17 at paragraphs [25] to [26]
88Further, counsel for Ms Herrmann submitted the shoulder problem was chronic and it was there all the time, whereas the back issue flared up from time to time and was manageable with exercise (whereas the shoulder was not).[92]
[92]T101
89I reject the submissions made on behalf of the defendant for the following reasons:
(a) there was no expert evidence which attributed any shoulder pain or problems as originating from something other than the shoulder;
(b) there was no cross-examination on any alleged overlap between the shoulder and other conditions;
(c) Ms Herrmann has addressed the consequences of the shoulder specifically in her evidence. Any disentanglement has therefore already been carried out;
(d) the defendant’s counsel appropriately conceded that it was possible to have two conditions (one compensable and one non-compensable) producing separate pain and suffering consequences;[93] and
(e) the unchallenged evidence of Ms Herrmann is that she was spending around $10,000 a year on an assistant due to the restrictions posed by her upper limb injury. Given her income from her business of $21,271 in 2023, I consider that the shoulder has prevented her from building her business in the sense that a significant portion of her modest income is going towards the cost of an assistant which she would not have needed, but for the left upper limb injury[94].
[93]T64
[94]T34
90I find Ms Herrmann has disentangled the consequences of the left upper limb from those of the neck and back.
Do the impairment consequences relied on by Ms Herrmann meet the statutory test?
91This is a borderline case.
92During closing addresses, I raised with counsel my concern that some of the consequences relied upon appeared inconsistent with others. In particular, Ms Herrmann said in oral evidence that she struggled to swing her left arm when walking, but had been able to return to rock climbing (both indoor and outdoor), albeit to a much more limited degree but still needing to rely on her left arm to stabilise and support herself.[95]
[95]T30
93Counsel for Ms Herrmann submitted that rock climbing has been a lifelong love of Ms Herrmann’s. Following the transport accident Ms Herrmann was restricted in the types of climbs she could do. In particular, her evidence was that she chooses those paths which do not cause her unmanageable difficulty and, importantly, that no submissions had been made about Ms Herrmann’s credit.[96]
[96]T89
94Counsel for the defendant conceded that there was no cross-examination of Ms Herrmann on any purported inconsistency between those alleged consequences[97] and submitted that it was a matter of common sense in respect of which judicial notice could be taken.
[97]T111
95I reject that submission for a number of reasons.
96First, whether an experienced rock climber is able to modify their technique to accommodate a shoulder injury is not a matter about which I can take judicial notice. The party who asks the Court to take judicial notice of a fact bears the burden of convincing the judge that the matter is so notorious as not to be the subject of dispute.[98] Contentious matters of fact are not the subject of judicial notice and must be proved by sworn testimony.[99]
[98]Dougherty v Nationwide News Pty Ltd (1967) 86 WN (Pt 1) (NSW) 181
[99]Anglo Czechoslovak and Prague Credit Bank v Janssen [1943] VLR 185 at 197
97Second, the plaintiff had deposed in her second affidavit that she had returned to rock climbing,[100] albeit at a reduced level. She was cross-examined about the extent of that return and what it entailed, and the defendant made no submission that Ms Herrmann was not credible or reliable or that there was any inconsistency in her alleged consequences.
[100]PCB 16 at paragraph [22]
98Third, I consider that it would generate unfairness to Ms Herrmann if I made adverse findings of significance against her based on “judicial notice” when she had not had the opportunity to comment on any alleged inconsistency or to explain how she had been able to modify her technique.
99Taking into account the submissions of the parties and the way in which they ran their respective cases, I accept that Ms Herrmann has somehow been able to modify her technique to accommodate her injury and she is not able to go rock climbing to the level she did before the transport accident.
100Ms Herrmann also gave evidence about a range of consequences directly attributable to the left shoulder (as opposed to the neck or back) on which she was not challenged and which I accept meet the statutory test. In summary these are as follows:
(a) constant daily left shoulder pain which fluctuates with certain activities. The presence of severe pain is supported by Ms Herrmann’s election to undergo a cortisone injection[101] which she knew would cause her an allergic reaction and which did cause such a reaction;
(b) pain, weakness and tingling in the left hand affecting her work;
(c) the need to take prescription medication (Mobic, Celebrex and Voltaren) in the long term which her GP has indicated is not advisable.[102] I regard it as a serious consequence that Ms Herrmann is having to take long-term medication for her left shoulder which was not advisable;
(d) attending for weekly physiotherapy for four years (with a break due to cessation of funding) and also funding her own acupuncture and other therapies. This supports the existence of ongoing pain and restriction. Given her modest income, I regard it as significant that Ms Herrmann is self-funding treatment to address her left shoulder condition;
(e) impaired sleep and the need to prop herself up with pillows to avoid turning over onto her shoulder;
(f) permanently restricted in her ability to work to work independently and having to hire an assistant at a cost which represents a significant portion of her modest income from her photography business;
(g) permanent restrictions in her employment in that she is unable to take photographs and perform computer adjustments on the same day, due to pain and restriction and having to perform these activities week about;
(h) the probability of her condition worsening as predicted by Mr Csongvay and Mr Moaveni, and the potential need for surgery which has been recommended but which Ms Herman wishes to avoid. I consider it a matter of some significance that her pain and restrictions will continue and possibly increase into the future and surgery may not be able to alleviate them;
(i) restriction on her ability to engage in multi-day and overnight hikes and camping as she is unable to carry a heavy back pack and unable to sleep on the ground in a camp. Before the accident Ms Herrmann was very active, enjoying an outdoors lifestyle. I consider it a significant consequence that she can no longer do many of these activities and that her rock climbing is now limited to what she can accommodate by changed technique. I accept the defendant’s submission that Ms Herrmann still has the ability to enjoy the social aspects of the rock climbing; however, the consequence in fact relied on was the inability to climb as she did before, not the inability to socialise when she went rock climbing; and
(j) reduced cycling due to pain (and fear of pain) in the shoulder associated with riding on uneven surfaces.
[101]Ms Hermann underwent this injection in October 2021 and in her affidavit sworn 21 May 2024, she deposed that it improved her sleep but she continues to experience shoulder pain.
[102]PCB 56
101I take into account the opinion of Mr Moaveni that Ms Herrmann’s restrictions are significant and permanent. She is a relatively young woman (45) and will likely experience these symptoms and restrictions for the rest of her life.[103] The endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a very considerable consequence.[104]
[103]Haden Engineering Ptd Ltd v McKinnon [2010] VSCA 69 at paragraph [17]
[104]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267 at paragraph [199]
Conclusion
102In exercising the value judgement required of me, I find that the combination of consequences relied upon by Ms Herrmann are serious for her and, when judged by comparison with other cases in the range of possible impairments, are at least “very considerable” and more than significant or marked.
103I therefore grant Ms Herrmann leave to bring proceedings for the recovery of damages pursuant to section 93 of the Transport Accident Act 1986.
104I will hear the parties with respect to costs.
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