Hettiarachchi v Transport Accident Commission
[2021] VCC 2060
•17 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-03769
| KUSHAN HETTIARACHCHI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 29 September 2021 | |
DATE OF JUDGMENT: | 17 December 2021 | |
CASE MAY BE CITED AS: | Hettiarachchi v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2060 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – transport accident – pain and suffering
Legislation Cited: Transport Accident Act 1986, s93(4); s93(17)
Cases Cited:Transport Accident Commission v Zepic [2013] VSCA 232; Lexa v Transport Accident Commission [2019] VSCA 123; Victorian WorkCover Authority v Brassington [2021] VSCA 236; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Humphries and Anor v Poljak [1992] 2 VR 129; Dean v Crossway Holdings Pty Ltd [2011] VSCA 198, AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Haidar v Transport Accident Commission [2016] VSCA 182; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439; Transport Accident Commission v Streicher [1998] 4 VR 439; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Petkovski v Galletti [1994] 1 VR 436; [2005] VSCA 1; HuntervTransport Accident Commission [2005] VSCA 1; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D McWilliams with | Maxiom Injury Lawyers |
| For the Defendant | Mr P Rattray QC with Ms A Bannon | HWL Ebsworth |
Table of Contents
Introduction
Background
Legal principles
Evidence
Submissions
Treating practitioners’ reports
The Plaintiff’s treating doctors
Dr Roshan Mendis – general practitioner
Mr Murray Hutchison – musculoskeletal physiotherapist
Dr Gavin Weekes – pain specialist
Mr Derek Carr – orthopaedic surgeon
Mr Ash Chehata – orthopaedic surgeon
Dr Richard Sullivan, Precision Ascend Network Pain Management Program (“NPMP”)
Ms Teresa Bartlett, clinical and counselling psychologist
Medico-legal reports
The Plaintiff’s medico-legal experts
Mr Gayan Padmasekara – orthopaedic surgeon
Mr Douglas Gardiner – orthopaedic surgeon
The Defendant’s medico-legal experts
Mr Michael Dooley – orthopaedic surgeon
Associate Professor Peter Doherty – consultant psychiatrist
Joint medico-legal experts
Associate Professor Abdul Khalid
The Plaintiff’s affidavit evidence
First affidavit
Second affidavit
Cross-examination of the Plaintiff
Injuries suffered in transport accident
Left shoulder injury
Cervical spine
Permanence
Causation
Are the Plaintiff’s impairment consequences “serious”?
The Plaintiff’s impairment consequences after the transport accident
Left shoulder
Cervical spine pain
Medication and treatment
Cricket
Cricket coaching
Activities of daily living
Plaintiff’s visit to his father
Driving
Relationship with children
Sleep
Employment
Marriage
Stoicism
Disentangling the consequences of the left shoulder and the cervicothoracic spine injury
Conclusion
HER HONOUR:
Introduction
1Kushan Hettiarachchi (“the plaintiff”) sustained injuries to his left shoulder and cervical spine in a transport accident on 19 June 2018. His car was struck from the left by another car travelling at speed through an intersection after the traffic lights turned green (“the transport accident”).
2The plaintiff seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (Vic) (“the Act”) to commence common law proceedings for damages for pain and suffering in respect of the injuries he sustained in the transport accident. He alleges he suffered a “serious injury” as defined in s93(17)(a) of the Act. The impairment claimed is to the left shoulder and the spine.
3To succeed, the plaintiff is required to establish that, as a result of the transport accident, he suffered “serious long-term impairment of a body function”.
4Although referred to in the Originating Motion, the plaintiff does not persist with a claim for leave to bring common law proceedings for damages for pain and suffering in respect of a severe long-term mental or behavioural disturbance or disorder as defined in s93(17)(c) of the Act.
5I have formed the view that as a result of the transport accident on 19 June 2018:
(a) the plaintiff suffered injuries to his left shoulder and cervical spine;
(b) the left shoulder injury resulted in impairment of the function of the plaintiff’s left arm and the cervical spine injury resulted in impairment of the plaintiff’s spine;
(c) both injuries are long-term and likely to last for the foreseeable future and in that sense are permanent;
(d) the plaintiff is a credible witness;
(e) a pre-existing lumbar spine injury is relevant to the identification of the impairment consequences to the plaintiff; and
(f) the impairment consequences of neither the left shoulder injury, nor the cervical spine injury, when considered separately, reach the required threshold for a ”serious injury”.
Background
6The plaintiff was born in Sri Lanka and is currently forty-nine years old. He is married and has a son aged nineteen years and a daughter aged ten years.
7He moved to Australia in 2006 and obtained a job with the ANZ Bank shortly after arriving. He attained a Masters’ degree in Finance & Banking at Swinburne in 2015 and continued working full time with the ANZ Bank as a senior officer in trade operations until his position was made redundant in March 2018, effective July 2018.
8The plaintiff’s medical history included some pain in his left knee after a twisting incident in 2006; some right wrist pain in late 2007; some pain in his left heel in late 2013; some low back pain on the right side in around 2014; some right shoulder pain in July 2014 and some left knee pain after a twisting episode. He attended Parkway Medical Centre for treatment in relation to these injuries, which he said resolved with minimal treatment. The plaintiff takes regular medication for high blood pressure and abdominal and gastric issues.
9At various times after 2016, the plaintiff experienced low back pain with referred right leg pain. He was referred for scans and said that his pain resolved.
10He experienced some pain in his right shoulder in August 2017. This resolved after conservative treatment.
11Following the transport accident on 19 June 2018, the plaintiff’s back and neck felt hot and sore and he had pain in his left shoulder. He was taken by ambulance to the Dandenong Hospital. He underwent scans and tests including a CT PAN scan, an unenhanced CT brain and cervical spine scan, and an IV contrast enhanced CT scan of the chest, abdomen and pelvis, with thoracic lumbar spine reformats. The plaintiff stayed overnight at the hospital and was discharged the following day with pain medication.
12The CT scan did not identify any traumatic injury. There was no fracture of the cervical, thoracic, or lumbar spine: Each had normal alignment. There was mild degenerative spondylosis and facet osteoarthritis with an ossified supraspinous ligament at C6 level. In relation to the plaintiff’s left shoulder, there was no acute fracture, but there was concave deformity of the posterolateral humeral head in keeping with a Hill-Sach lesion from a prior dislocation. The plaintiff was observed to have a prominent thymus for his age. A diagnosis of thymic hyperplasia was queried as no focal thymic lesion had been identified.
13On 22 June 2018, following increasing left shoulder pain, the plaintiff attended his general practitioner, Dr Roshan Mendis. He was given Prodeine tablets for the pain and referred for further scans and physiotherapy.
14An ultrasound was taken of the plaintiff’s left shoulder on 26 June 2018. The ultrasound reported that:
“The A-C joint is non-tender.
The subacromial bursa is mildly thickened without bunching on abduction.
There is rotator cuff tendinopathy seen without tearing.
Fluid in the biceps sheath without evidence of capsulitis.”[1]
[1] Exhibit A, Plaintiff’s Court Book (“PCB”) 123
15The plaintiff attended physiotherapy for several months and managed as best he could. He had some lingering left shoulder pain and occasional pain in his low back and neck.
16On 31 January 2019, the plaintiff had an MRI scan of his left shoulder. It was recorded in the clinical notes there had been a transport accident and the plaintiff was unable to lift his shoulder and was in constant pain. The acromioclavicular joint was mildly thickened and hyperintense, suggestive of adhesive capsulitis. There was mild synovitis in the rotator interval and a posterior offset of the glenohumeral joint, suggesting micro-instability and intracapsular bicipital tendinosis. There was evidence of subscapularis tendinosis without a discrete tear, intracapsular bicipital tendinosis, and small tears and mild degenerative changes in the anterosuperior labrum. There was minimal subacromial bursitis, infraspinatus insertional tendinosis and a small under-surface partial thickness tear measuring up to 3 x 3 millimetres.
17The results of the MRI scan concluded the plaintiff had features of adhesive capsulitis, mild degenerative changes in the anterior superior labrum and infraspinatus insertional tendinosis with a small under-surface partial thickness tear.
18Following the MRI scan, in March 2019, the plaintiff was referred to Mr Derek Carr, orthopaedic surgeon, for a specialist opinion. Mr Carr recommended hydrodilatation. This was performed on 9 August 2019.
19In November 2019, the plaintiff’s physiotherapy treatment ceased.
20In early 2020, the plaintiff consulted Mr Ash Chehata, orthopaedic surgeon.
21A CT scan of the plaintiff’s cervical spine (non-contrast) was taken on 26 August 2020. An attenuation of the cervical spinal curvature was found. There was normal vertebral body height and alignment and mild degenerative changes of the cervical spine. At C3-4, there was a diffuse disc bulge with small peridiscal osteophytes, but no traversing or exit nerve root impingement. There was also a diffuse disc bulge at C5-6, again with small peridiscal osteophytes causing minor focal central canal stenosis. There was minor bilateral neural exit foraminal narrowing slightly more marked on the left, but no traversing or exist nerve root impingement. The facets were normal. Additionally, there were some degenerative changes with anterior disc calcification at C5-C6 and C6-C7 levels.
Legal principles
22Section 93(6) of the Act provides that:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
23The definition of “serious injury” as set out in s93(17)(a) of the Act is, relevantly:
“serious injury means—
(a) serious long-term impairment or loss of a body function; or
…
(c)severe long-term mental or severe long-term behavioural disturbance or disorder; or
… .”
24To determine whether there has been a ”serious injury”, it is necessary to decide whether there has been a “serious long-term impairment or loss of a body function”. The Act distinguishes between injuries and impairments. It is necessary, first, to identify a relevant body function or functions, and to decide whether that body function has been impaired or lost.
25Where there are multiple injuries, it is necessary to consider whether there is impairment to one or more body functions. Injuries to different regions of the spine ꟷ for instance lumbar spine, cervical spine, or thoracic spine ꟷ can be aggregated where they arise out of the same incident.[2] Similarly, injuries to the ankle and the knee on the same leg, or an elbow and shoulder of the same arm, may also be aggregated if occurring in a single incident.[3] Where there are multiple injuries to more than one body function, it is ordinarily not permissible to aggregate separate impairments to determine if, together, they constitute an impairment which is ”serious” and “long-term”.[4] In Lexa v Transport Accident Commission,[5] for instance, the Court of Appeal dismissed an appeal from a decision of the County Court and held that bilateral shoulder injuries had not given rise to the loss or impairment of a single body function.[6] Accordingly, the plaintiff was not permitted to aggregate his two shoulder injuries and their consequences into a single impairment of his shoulders.
[2] Transport Accident Commission v Zepic [2013] VSCA 232 (“Zepic”) at paragraphs [11], [138]-[139]
[3]Victorian WorkCover Authority v Brassington [2021] VSCA 236 at paragraphs [48]-[52], disapproving Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511 (“Lu”)
[4]Humphries and Anor v Poljak [1992] 2 VR 129 (“Poljak”) at 138; Lu
[5] [2019] VSCA 123
[6] Ibid at paragraph [51]
26If a plaintiff has been injured on different occasions, the Court is required to separate out the components of each injury. The injuries cannot be aggregated, even if they affect the same body part.[7]
[7]Dean v Crossway Holdings Pty Ltd [2011] VSCA 198 at paragraph [72]; Lu; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60
27If impairment or loss is demonstrated, consideration is required as to whether the injury responsible for such loss or impairment is a “serious injury”. The question of whether an injury is “serious” for the purpose of s93(17) is to be answered according to the narrative test laid down by the Full Court of the Supreme Court of Victoria in Poljak.[8]
[8]Poljak at 140 (per Crockett and Southwell JJ)
28The assessment task involves bringing to account all factors personal to the plaintiff which emerge on the evidence as relevant to the assessment, and making a value judgement in accordance with the principles enunciated in Poljak[9] as to whether the impairment consequences are “serious”.
[9]Poljak at 140 (per Crockett and Southwell JJ); Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
29The consequences of the injury to a plaintiff, when judged objectively by comparison with other cases in the range of possible impairments or losses, must be at least “‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[10]
[10]Poljak at 140 (per Crockett and Southwell JJ)
30The credit of the plaintiff will often be particularly important[11] when assessing the plaintiff’s account of his or her pain and suffering consequences to doctors and the Court.[12] For instance, if the plaintiff exaggerates his or her symptoms or provides an inaccurate medical history, the account may be of less weight.[13] Regardless of the veracity of the plaintiff’s evidence, reliable medical evidence must not be ignored because the plaintiff is or may not be credible.[14]
[11]Haidar v Transport Accident Commission [2016] VSCA 182 (“Haidar”), [30]; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439; Transport Accident Commission v Streicher [1998] 4 VR 439 at 448; Petrovic v Victorian WorkCover Authority [2018] VSCA 243 at paragraph [74] (“Petrovic”)
[12] Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
[13]Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 at paragraph [145]; Zepic at paragraph [91]; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 at paragraph [33]; Haidar at paragraph [32]; Petrovic at paragraph [74]
[14]Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104 at paragraph [49]; Petrovic at paragraph [76]; Pulling v Yarra Ranges Shire Council [2018] VSC 248 at paragraph [51]
31The plaintiff bears the burden of proof on the application. The standard of proof is on the balance of probabilities.[15]
[15]Petkovski v Galletti [1994] 1 VR 436 at 437 (per Brooking JA)
32The Court must assess whether the injury is “serious” at the time the application is heard.
33The Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application. [16]
[16] HuntervTransport Accident Commission [2005] VSCA 1 at paragraphs [23]-[26]
Evidence
34The plaintiff’s application was supported by two affidavits of the plaintiff dated 16 June 2020 and 11 August 2021, an affidavit of the plaintiff’s wife, Anne Hettiarachchi, sworn 11 August 2021 and an affidavit of Gerry Van Der Nest, sworn 13 August 2021. In addition, the plaintiff gave evidence and was cross-examined. Various treating medical reports, medico-legal reports, radiological investigations, and clinical records contained within the Plaintiff’s Court Book were tendered by the plaintiff.
35The defendant tendered extracts of the Defendant’s Amended Court Book (“DACB”) comprising medico-legal reports and clinical records, and a taxation return contained in the Plaintiff’s Court Book.
Submissions
36The plaintiff submitted that since the transport accident he suffers from a range of consequences resulting from the impairment of his cervical spine function and, separately, his left shoulder function, which satisfy the test for serious injury. He asserts that he has variable, but constant, pain radiating from his left shoulder. He also has pain, albeit less intense, from his neck. His sleep has been affected and he has dreams and flashbacks of the transport accident. He is not taking any regular medication. He says this is because it interferes with medications he has been prescribed for other medical conditions. He takes occasional Panadol. He is a nervous driver. He has reduced his driving, and only drives as required. He has a twelve-month contract of employment with the Commonwealth Bank since discontinuing employment with the ANZ Bank. He has been unable to continue playing cricket and is no longer able to coach junior cricket. The plaintiff avoids domestic chores and activities above shoulder height and no longer uses heavy tools or a hedge trimmer.
37The defendant submitted that not all claimed consequences were referable to the plaintiff’s cervical spine, or his left shoulder, and that there were various contributors to the plaintiff’s claimed pain, disability and impairment consequences, including an earlier injury to his lumbar spine, in respect of which the plaintiff made no claim.
38It submitted that, in accordance with Meadows v Lichmore Pty Ltd,[17] the onus was on the plaintiff to “disentangle” the various factors to identify the physical injuries sustained in the accident, the impairment of spinal function and/or shoulder function attributable to those injuries, the pain and suffering consequences attributable to any impairment, and whether such consequences were serious in the sense that they were “at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”. The defendant submitted that the plaintiff could not discharge that onus.
[17] [2013] VSCA 201 at paragraph [19]
39The defendant submitted that the force of the plaintiff’s evidence in his affidavits as to his pain and claimed impairment consequences was diminished because it was exaggerated and did not reflect what the plaintiff told the doctors, or what they found on examination. It also did not reflect the evidence the plaintiff gave under cross-examination. The defendant further submitted that the plaintiff’s failure to inform medical practitioners of his pre-accident condition – particularly the pre-existing injury to his lumbar spine – and the plaintiff’s restriction of the post-accident details of his injuries entirely to the cervical spine and the left shoulder, impacted the plaintiff’s credit and whether the claimed consequences should be accepted.
Treating practitioners’ reports
The Plaintiff’s treating doctors
Dr Roshan Mendis – general practitioner
40Dr Mendis, general practitioner, first saw the plaintiff on 22 June 2018. The plaintiff was complaining of severe neck and shoulder pain. He was unable to lift his arm up above his shoulder, and his shoulder was tender with restricted movement, especially abduction. He was referred for an ultrasound on 26 June 2018, and for physiotherapy, as his condition was not improving.
41On 20 July 2018, the plaintiff saw Dr Mendis again. His condition had marginally improved.
42By 9 August 2018, the plaintiff reported to Dr Mendis that his condition had improved up to 40 per cent and he was receiving physiotherapy each week.
43On 31 January 2019, the plaintiff underwent an MRI scan of his left shoulder.
44The plaintiff was referred to Mr Carr, orthopaedic surgeon, who discussed various surgical procedures and medical options with him, including hydrodilatation of the left shoulder.
45The plaintiff underwent a hydrodilatation on 12 August 2019.
46His condition did not improve. He consulted Dr Mendis again on 10 October 2019, when he was experiencing depressive symptoms because of his inability to return to full-time work.
47As the plaintiff’s condition was not improving, Dr Mendis referred him to another orthopaedic surgeon, Mr Ash Chehata, for further management. Mr Chehata noted that the plaintiff had decided to adopt a conservative approach with remedial massage, heat packs and symptomatic treatment. He ruled out operative intervention.
48The plaintiff was referred to a pain management specialist, Dr Gavin Weekes, on 25 June 2020. At that time, the plaintiff’s history included tendonitis. The plaintiff had been prescribed Panadeine Forte tablets (last prescription on 6 December 2019) and Panamax tablets (last prescription on 11 March 2020) for soft-tissue injuries, and Tramadol Sandoz (last prescription on 10 December 2019) for a lumbar disc bulge. Dr Weekes recommended that he commence pain management immediately. He was unable to do so because of COVID-19. A place later became available in January 2021, but the plaintiff declined the place because he was working full time and was unable to attend.
49The plaintiff continued to have shoulder pain and limited movements in his left shoulder, with abduction to a maximum of 90 degrees and extension of 90 degrees. He continues to be unable to lift his arm above the shoulder and he has intermittent pain.
Mr Murray Hutchison – musculoskeletal physiotherapist
50Mr Hutchison, musculoskeletal physiotherapist, prepared four letters dated 11 July 2018, 20 January 2021, 28 April 2021 and 8 June 2021.
51He examined the plaintiff on 2 July 2018 and noted in his letter dated 11 July 2018, that the plaintiff had been referred for management of his left shoulder injury. The plaintiff’s main problem was “left shoulder pain reaching above shoulder height, dressing and lying on his left shoulder”.[18] The plaintiff’s symptoms had reduced to a significant degree and his shoulder mobility was steadily increasing.
[18] PCB 46
52On 20 January 2021, Mr Hutchison prepared an Allied Health Treatment and Recovery Plan for the plaintiff. The plan noted the diagnosis of a left cervicothoracic soft-tissue dysfunction and chronic strain, and left shoulder subacromial bursitis and rotator cuff tendinopathy.
53In a letter dated 28 April 2021 from Hampton Park Physio to Casey Race, it was noted by Mr Hutchison that the plaintiff had suffered a cervicothoracic strain and left shoulder subacromial bursitis/rotator cuff tendinopathy in a motor vehicle accident and had some ongoing issues with pain, tightness and weakness, particularly involving his left shoulder girdle.
54In the Hampton Park Physio report dated 8 June 2021, Mr Hutchison referred to the plaintiff’s background and history. He assessed the plaintiff on 2 July 2018 in relation to his left shoulder pain. At that time, the pain extended along the supraspinous fossa to the cervicothoracic region. The plaintiff reported the left shoulder pain significantly affected his ability to reach over-shoulder height, behind his back, or lift any weight with his upper left limb. He was experiencing difficulty with putting on and removing tops, and lying on his left side aggravated the pain. Examination revealed significantly reduced left shoulder movement with approximately 90 degrees flexion and 85 degrees abduction. Mobility was limited with severe pain described as 10/10. Left shoulder supraspinatus strength testing revealed significant weakness associated with pain. There was subacromial impingement and the plaintiff was tender over the left acromioclavicular joint, with some swelling. Active tests of the plaintiff’s cervical spine revealed some pain at the end of range.
55Mr Hutchison diagnosed left shoulder subacromial bursitis, with some possible involvement of the supraspinatus tendinopathy. There was also soft-tissue strain to the cervicothoracic region and some soft-tissue strain and tightness along the plaintiff’s upper trapezius muscle.
56Mr Hutchison then referred to his consultation with the plaintiff on 2 June 2021, during which he completed a shoulder pain and disability index for the plaintiff. This gave a score of 58 per cent. A neck disability questionnaire provided a score of 40 per cent. The scores indicated the plaintiff’s ability to manage everyday life was being impacted to a moderate to moderately severe degree in relation to his left shoulder, and a moderate degree in relation to his cervicothoracic condition.
57Upon examination, the plaintiff’s left shoulder supraspinatus strength testing revealed mild weakness associated with moderate pain. Left grip strength was reduced by 30 per cent compared to the right. There was some pain and tightness at the end of the cervical spine range with pain at 80 degrees rotation. Mr Hutchison concluded the plaintiff’s symptoms remained consistent with left shoulder rotator cuff-related pain. In addition, he concluded the plaintiff most likely suffered from a soft-tissue strain to the cervicothoracic region, which developed into a postural dysfunction and persistent pain syndrome involving his left cervicothoracic and shoulder girdle region.
Dr Gavin Weekes – pain specialist
58Dr Gavin Weekes, pain specialist, prepared five letters dated 16 July 2020, 25 August 2020, 7 September 2020, 8 June 2021, and 8 July 2021, detailing his treatment of the plaintiff.
59In the letter dated 16 July 2020, Dr Weekes referred to the ultrasound of the plaintiff’s left shoulder, which revealed evidence of subacromial bursitis and rotator cuff tendinosis. He also noted the MRI scan of the plaintiff’s left shoulder taken on 30 January 2019, which revealed features of adhesive capsulitis, mild degenerative changes of the anterior superior labrum and infraspinatus tendinosis with a small under-surface partial thickness tear. He recorded that the plaintiff had engaged in physiotherapy and had undergone hydrodilatation. He was not currently on any regular analgesic medication. He had normal range of motion of his shoulders. The movement of his cervical spine was mildly reduced, with extension aggravating his pain more than flexion. There was some tenderness over the left mid-cervical facet joints. An MRI scan of the cervical spine was recommended to exclude C4-5 nerve root irritation.
60Dr Weekes wrote to Dr Mendis by letter dated 25 August 2020 and reported that, although the plaintiff attempted a standing MRI scan, he had been unable to complete it. Dr Weekes recommended a CT scan to look for evidence of any left C4 or C5 nerve root impingement.
61On 7 September 2020, Dr Weekes reported to Dr Mendis in relation to the results of the CT scan of the plaintiff’s cervical spine. The scan revealed evidence of spondylosis, but no nerve root compression. Dr Weekes noted he had discussed the option of a left-sided C3 to C5 medial branch block with the plaintiff, but he had been keen to avoid that if possible. They had also discussed a pain management program.
62On 8 June 2021, Dr Weekes saw the plaintiff, who he had not seen for some months. The plaintiff was assessed for a pain management program, but had decided not to proceed with it, as he was engaged in full-time employment. The plaintiff was continuing to take Panadol.
63On 8 July 2021, Dr Weekes prepared a report for the plaintiff’s lawyers. He detailed the plaintiff’s medical history before the transport accident as disclosed to him. He described the collision and its effects upon the plaintiff. He observed that the plaintiff had chronic pain affecting his neck and shoulder and there was unlikely to be a cure for the pain. He referred to the diagnosis of cervical spondylosis and the left shoulder diagnosis as detailed in the MRI scan. He opined that both the plaintiff’s left shoulder and neck injuries had an organic basis, and they were permanent.
64Dr Weekes noted that the plaintiff found playing cricket more difficult because of his chronic pain syndrome. It was not reported to him that the plaintiff could not play cricket, just that if he did it could exacerbate his symptoms.
Mr Derek Carr – orthopaedic surgeon
65On 28 March 2019, the plaintiff was seen by Mr Carr, orthopaedic surgeon, specialising in upper shoulder injuries. The plaintiff presented with a painful left non-dominant shoulder after the transport accident and following four to five months of physiotherapy treatment, dry needling and occasional use of pain medication. Mr Carr noted the plaintiff’s shoulder had initially started improving; however the plaintiff had been experiencing increasing pain and restriction of movement, which was interfering with his ability to lift and move his shoulder, as well as obtain a decent night’s sleep. Despite this, Mr Carr observed that the plaintiff had still been able to play cricket.
66Clinically, the plaintiff could undress without assistance. He stood with symmetrical upper limb alignment and his range of movement was reasonably well preserved. He had pain at the extremes of rotation.
67The shoulder capsule was irritable, but there was no distinct difference in the range between the two sides. The AC joint was non-tender, the biceps were tender and he had mild impingement findings.
68An MRI scan showed features of adhesive capsulitis and biceps tenosynovitis. His rotator cuff tendons were intact and there was no obvious subacromial bursitis. It was recommended that he undergo an ultrasound-guided hydrodilatation to treat his symptoms.
69In a separate letter prepared by Mr Chehata “to whom it may concern”, Mr Chehata noted the MRI clinical findings indicated intracapsular synovitis “frozen shoulder”, which was interfering with the plaintiff’s quality of life and his ability to perform tasks of daily living.
Mr Ash Chehata – orthopaedic surgeon
70The plaintiff saw Mr Chehata on 23 April 2020. Mr Chehata prepared a report of that date. He noted the plaintiff had been in the transport accident on 19 June 2018 and had immediately developed significant left shoulder pain, which had been ongoing. It had been treated conservatively with physiotherapy. An ultrasound confirmed bursitis and tendinosis without impingement.
71The plaintiff slowly improved, although he had an ongoing ache and lateral pain, especially with internal and external rotation. An MRI scan on 31 January 2019 confirmed adhesive capsulitis.
72The plaintiff underwent hydrodilatation, which provided some temporary relief, but he nevertheless continued to suffer ongoing issues of restriction in range of movement, as well as ongoing pain.
73Mr Chehata recommended a conservative approach to management with remedial massage, heat packs and symptomatic treatment. He did not think operative intervention was necessary or that hydrodilatation would improve his current range of movement. Mr Chehata considered that the plaintiff’s external and internal rotation were “quite good”, with 70 degrees in external rotation and 70 degrees in internal rotation. The plaintiff was capable of forward flexion and abduction past 120 degrees. Mr Chehata considered the condition was more chronic and was likely to be exacerbated by underlying severe psychological and psychiatric components.
Dr Richard Sullivan, Precision Ascend Network Pain Management Program (“NPMP”)
74On 7 September 2020, the plaintiff was referred by Dr Weekes to the NPMP. However, the plaintiff did not proceed with this referral because he was working in full-time employment.
Ms Teresa Bartlett, clinical and counselling psychologist
75On 7 July 2020, Ms Teresa Bartlett, clinical and counselling psychologist, prepared a treatment plan for the plaintiff. The plaintiff had been diagnosed on 14 October 2019 with post-traumatic stress disorder and a major depressive disorder. At that time, the plaintiff was noted to be engaging in treatment and to have a growing understanding of the way in which traumatic memories were processed. He was becoming aware of his cognitive distortions and was developing diaphragmatic and mindfulness breathing techniques. He was driving more regularly. He also recognised the benefits of playing cricket to his mental and physical health, as well as increasing his social contact. He was practising being more present with his wife and children.
Medico-legal reports
The Plaintiff’s medico-legal experts
Mr Gayan Padmasekara – orthopaedic surgeon
76Mr Padmasekara, orthopaedic surgeon, prepared a medico-legal report on behalf of the plaintiff dated 5 August 2021, following review of the plaintiff on 7 July 2021.
77He recorded the plaintiff’s history of left shoulder and neck pain following the transport accident on 19 June 2018, in which he suffered severe pain in his left arm.
78Following the transport accident, the plaintiff underwent a CT PAN scan and was observed for twenty-four hours.
79Upon examination, the plaintiff’s main issue was noted to be pain anteriorly into his shoulder with radiation to his neck and down his biceps. The pain was described as 2-3/10 on a good day and as severe as 9/10 on a bad day. He had nocturnal symptoms.
80The plaintiff had since returned to full-time work. Train travel exacerbated his pain.
81Prior to the transport accident, the plaintiff played cricket. Following protracted shoulder symptoms and psychological issues, his general practitioner and physiotherapist recommended that he try to play cricket again. He played four games the following season. Following this, he gave up captaining and did not bowl as much as he had done in the past. He did not play cricket during the 2020/21 season.
82He currently takes Panadol and Panadeine Forte for analgesia. He avoids anti-inflammatories due to gastro-oesophageal reflux.
83On examination, he had full neck range of motion. He had 160 degrees of forward elevation, with some irritation at the extremes of motion. He had symmetrical external rotation (60 degrees) and internal rotation with some irritability at the extremes of motion. His rotator cuff strength was intact. His impingement, biceps and AC joint signs were negative. He had no anterior, posterior, or inferior instability in his left shoulder.
84Mr Padmasekara opined that the plaintiff had left shoulder capsulitis and myofascial pain syndrome with his neck. He considered both conditions had an organic basis.
85The transport accident was the sole cause of the left shoulder injury; the plaintiff having had no shoulder pathology prior to the accident. Mr Padmasekara considered that the plaintiff’s shoulder symptoms were permanent.
86Mr Padmasekara also opined that the plaintiff had myofascial pain syndrome, although noted this was not his area of expertise. He considered the plaintiff’s present symptoms resulted from, or were materially contributed to, by the neck injury sustained in the transport accident, and the condition was permanent.
87In terms of functional limitations, Mr Padmasekara noted the plaintiff was limited in his use of his left arm, due to pain. He had difficulty in carrying anything more than 5 kilograms with his left arm, and he was reliant on his right shoulder for most activities of daily living. He was unable to play cricket. Mr Padmasekara noted the Transport Accident Commission (“TAC”) had been critical of the plaintiff playing cricket, but Mr Padmasekara said it had provided the plaintiff with connection to a social support structure and psychological benefits. Despite this, he had only been able to play in a limited capacity and had ceased playing in the 2020/2021 season.
Mr Douglas Gardiner – orthopaedic surgeon
88Mr Douglas Gardiner, orthopaedic surgeon, interviewed and examined the plaintiff and prepared a report dated 10 February 2020.
89He noted the plaintiff’s comorbidities, including hypertension and pre-existing gastritis, and his background, including his pre-accident physical activities, including competition cricket and coaching, as well as regular gym attendance.
90Mr Gardiner considered the plaintiff’s history of injury and progress. The plaintiff told Mr Gardiner his low back continued to be painful with twisting, lifting and when he bent forward. He was unable to engage in cricket competition or coaching because of his back pain. He was unable to lean forward far enough to pick up a ball from the ground.
91At the time the plaintiff was seen by Mr Gardiner, he had intermittent mild to moderate neck pain, mainly on the left side. He continued to experience pain and stiffness upon waking. He had ongoing pain in the whole of the deltoid, acromioclavicular joint, and in the belly of the left trapezius muscle. He said the pain increased when he rolled onto his left side during sleep. His shoulder was painful and stiff when he woke. He avoided all activities at or above shoulder level. He said he can no longer use a hedge trimmer or other heavy tools in the maintenance of the garden.
92The plaintiff also reported ongoing pain, and on examination he presented as slightly tender in the region of his left sacroiliac joint, aggravated by bending, lifting, and twisting. He also had some pain radiating down the front of his left thigh. He could stand, sit, or drive for a maximum of fifteen minutes before his low back and left thigh pain became troublesome.
93On examination, the plaintiff stood with normal posture. There was no muscle spasm in his spine, either standing or moving. The plaintiff’s pain was over the region of the left sacroiliac joint, where he was slightly tender. He had pain with straight leg raising. There was no deformity visible or muscle spasm when the plaintiff moved his head and neck. Pain was mainly over the left side of the neck. Movement in both upper extremities was normal apart from a painful and generally tender left shoulder.
94Mr Gardiner’s diagnosis was left shoulder region pain with a radiological diagnosis of adhesive capsulitis and a partial thickness tear of the infraspinatus tendon, myofascial injury of the cervicothoracic spinal region with some asymmetry of range of movement, but no signs of radiculopathy. There was also possible aggravation of pre-existing lumbosacral spondylosis, although the previous diagnosis of a right-sided L5-S1 disc protrusion did not appear to be having any effect on the clinical outlook.
95Mr Gardiner’s opinion was that the plaintiff’s “symptoms are not particularly severe and that mild analgesics are sufficient”.[19]
[19] Defendant’s Amended Court Book (“DACB”) 114
96Mr Gardiner concluded the plaintiff’s multifocal symptoms would continue to cause occupational and domestic disabilities and the prognosis for the return of normal function was guarded.
97Mr Gardiner noted the consequences of the plaintiff’s transport accident, including limitations on the plaintiff’s domestic and sporting activities. Specifically, the plaintiff no longer played competitive cricket, or coached cricket, as it placed excessive stress on his lumbosacral region. The plaintiff also had difficulty using a hedge trimmer and other heavy gardening implements because of a combination of the left shoulder, neck, and low back symptoms.
The Defendant’s medico-legal experts
Mr Michael Dooley – orthopaedic surgeon
98Mr Michael Dooley, orthopaedic surgeon, prepared two reports, dated 11 March 2021 and 9 September 2021. In his report dated 11 March 2021, Mr Dooley detailed the plaintiff’s medical history, account of the transport accident and post-accident treatment, including radiological investigations, physiotherapy and cortisone injections into his left shoulder in August 2019.
99The medical history taken by Mr Dooley was of significant low back pain in 2016, for which the plaintiff had physiotherapy treatment, and in respect of which the plaintiff said his symptoms had resolved prior to the transport accident.
100Mr Dooley recorded the plaintiff’s presenting complaint as ongoing left shoulder pain. The plaintiff was taking Panadol, but avoided anti-inflammatory medication because he took medication for hypertension.
101In relation to activities undertaken by the plaintiff after the transport accident, Mr Dooley recorded the plaintiff struggled with household chores, gardening and handyman-type work. At times, the pain interfered with his sleep and he experienced pain when laying on his left side. He had been a keen cricketer before the transport accident; captaining a team playing on synthetic wickets. He played three to four games in 2020, but stopped. The plaintiff said this was because of shoulder pain.
102Mr Dooley noted, on examination, that the plaintiff had tenderness of the shoulder girdle. He had active abduction to 100 degrees and forward flexion to 110 degrees. External rotation was to 40 degrees and internal rotation was to 20 degrees. Adduction and extension were to 10 degrees. Attempts to move the shoulder beyond the active range of motion were met by resistance and complaints of pain. There was a good range of motion of the cervical spine. There was no deformity or local tenderness of the lumbar spine.
103Mr Dooley was not provided with any radiological investigations.
104Mr Dooley opined that the plaintiff sustained a soft-tissue injury to his left shoulder and his lumbar spine in the transport accident. He considered it involved some subcutaneous and muscular bruising and some aggravation of pre-existing naturally occurring degenerative rotator cuff change. He noted there was significant restriction of active range of motion of his left shoulder.
105Radiologically, Mr Dooley observed that the plaintiff had tendinosis and degeneration of the glenoid labrum. This was said to be expected. He did not agree with the conclusion of the MRI scan that the plaintiff had adhesive capsulitis. His opinion was that the constancy and intensity of the plaintiff’s ongoing shoulder pain, and his described disability, were greater than one would expect to see for the plaintiff’s organic condition. The plaintiff had a psychological reaction to his situation and he considered that this was significantly influencing his ongoing symptoms.
106In his subsequent report dated 9 September 2021, Mr Dooley was asked to consider and comment on the left shoulder movements recorded by other examiners. Mr Dooley referred to various assessments undertaken by other orthopaedic surgeons, including those with a subspecialty in shoulder management. He maintained his view that the plaintiff did not have adhesive capsulitis of the left shoulder. He explained the condition affects patients in their late forties or early fifties and the clinical hallmark of adhesive capsulitis, on examination, is that active and passive ranges of motion are the same. The range of motion most affected is external rotation. In Mr Dooley’s opinion, on clinical grounds, the range of motion of the plaintiff’s left shoulder recorded by multiple experienced practitioners over several years was not consistent with a clinical diagnosis of adhesive capsulitis.
107Mr Dooley observed the diagnosis of adhesive capsulitis had been based on the MRI scan dated 31 January 2019. That report noted hyperintensity of the acromioclavicular joint and had documented that the hyperintensity was suggestive of adhesive capsulitis. Mr Dooley’s view was that hyperintensity of the acromioclavicular joint had no relevance to adhesive capsulitis. It was not a radiological sign of adhesive capsulitis.
Associate Professor Peter Doherty – consultant psychiatrist
108Associate Professor Doherty, consultant psychiatrist, interviewed and examined the plaintiff via Zoom on 21 January 2021. He was provided with the medico-legal report of Associate Professor Abdul Khalid, clinical records from the Parkway Medical Centre, and treating reports from Teresa Bartlett and Dr Gavin Weekes. He was not provided with any radiological reports.
109Associate Professor Doherty took a medical history from the plaintiff and noted the psychological impact of the transport accident on the plaintiff. The plaintiff reported that he has not been confident driving since the transport accident, although he did drive, but avoided doing so if he could. He feels nervous when he passes the accident scene. He reported being cautious and always vigilant at green lights. He reported that he got flashbacks of the transport accident and sometimes had dreams which he could not remember.
110He had trouble falling asleep; especially if he was on his left side. The quality of his sleep depended on whether he woke up during the night.
111He was unable to do the same level of household chores as he once could. He could not clean bathrooms or do hedge trimming. He could not do handyman activities and he avoided lifting with his left side. He sometimes did a small amount of shopping. He watched television and sports. He used to play cricket, and did play after the transport accident, but not as regularly as before the accident, as there were problems with his movement. He missed the social aspects of cricket, which he had given up due to pain. He worried about his future. He quantified his current mood at 5/10 and said he got anxious. When he did, his heart rate became elevated and he sweated. He had not had any discrete panic attacks and his memory and concentration were alright. He attended a psychologist for some sessions, but these had been completed. He had not seen a psychiatrist. He was not taking any anxiolytic or antidepressant medication, and never had. He took a small amount of analgesic medication.
112Associate Professor Doherty included details of diagnostic investigations and other materials which he had reviewed, including the clinical entries. He noted the history of low back pain for one year in the clinical entries of 4 June 2016. He also referred to the reports of Associate Professor Khalid prepared jointly for the TAC and the plaintiff’s lawyers dated 19 September 2019 and 7 March 2020, as well as the mental health psychology treatment plan signed by psychologist Teresa Bartlett, dated 7 June 2020, in which she diagnosed post-traumatic stress disorder and a major depressive disorder.
113An examination of the plaintiff was undertaken by Associate Professor Doherty. The plaintiff quantified his pain at 5 out of 10, with flare ups to 7-8 out of 10, and mood at 4 out of 10.
114Associate Professor Doherty observed mild nervousness when he examined the plaintiff. He did not observe significant or troubling symptoms. He disagreed with the diagnosis of an adjustment disorder with a significant level of impairment. He considered that it did not appropriately apportion the psychiatric impairment; most of which he considered was due to the claimed physical complaint of persistent pain and the consequences of such. At most, Associate Professor Doherty considered that there was a mild adjustment disorder which was currently fading, with some features of traumatisation, loss of confidence and persistent pain.
Joint medico-legal experts
Associate Professor Abdul Khalid
115Associate Professor Khalid, consultant psychiatrist, prepared two reports dated 19 September 2019 and 7 March 2020. The reports followed an interview and examination of the plaintiff.
116In his report dated 19 September 2019, Associate Professor Khalid took a history of the circumstances of the transport accident and subsequent treatment.
117The plaintiff recounted that he could not take painkillers because he had long-term gastritis and takes Nexium. The plaintiff takes Panadol and Nurofen as needed.
118A history of the plaintiff’s symptoms was taken. He said he gets nervous when he gets in a car. He stopped driving for two weeks as he was scared, but had no choice but to resume driving. The plaintiff passes through the intersection where the accident happened at least twice a day, as it is near his house. He is fearful someone will hit him again. He is more anxious as a passenger and remembers the sound of the impact and the car spinning. His sleep is disturbed by pain and he cannot sleep on his left side. He sometimes wakes up sweaty and has dreams of the transport accident. He has nightmares once every two months.
119The plaintiff had not received any psychiatric or psychological treatment and denied a personal or family history of psychiatric injury.
120Upon examination, Associate Professor Khalid recorded that the plaintiff’s affect was anxious, with restricted range. There was no formal thought disorder. He had frequent memories of the transport accident with infrequent flashbacks. He was hypervigilant in looking out for cars and was overly cautious at intersections.
121Associate Professor Khalid recorded that the plaintiff’s general practitioner had suggested he see a psychologist, but the plaintiff wanted to move on.
122The plaintiff started consultancy work from home in October 2018.
123Based on the mental state examination and documents provided, Associate Professor Khalid diagnosed an adjustment disorder with anxiety because of the transport accident on 19 July 2018. He considered that it was premature to comment on the plaintiff’s prognosis, as he had not received any psychiatric or psychological treatment.
124In the subsequent report dated 7 March 2020, Associate Professor Khalid re-assessed the plaintiff. He referred to the circumstances of the transport accident and the plaintiff’s history of symptoms which were consistent with previous reporting. He also noted that the plaintiff had since participated in nine sessions with psychologist, Ms Bartlett.
125Associate Professor Khalid then referred to the TAC Mental Health (Psychology) Treatment Plan prepared by Ms Bartlett. The plan referred to the fact that the plaintiff had lost confidence because he did not return to work following the transport accident and was not able to apply for jobs because of the severe pain to his injured left shoulder. Ms Bartlett had noted that the plaintiff “is managing his pain quite well”[20] and “has expressed a desire to return to his former profession in banking”.[21] The TAC Mental Health (Psychology) Treatment Plan also noted that the plaintiff occasionally had setbacks, and his anxiety had increased to the extent that on one occasion while driving he had frozen, stopped his car, and needed to pull over to the side of the road.
[20] PCB 64
[21] PCB 64
126Since the earlier report, Associate Professor Khalid reported that the plaintiff had said he had gained a better understanding of the psychiatric symptoms that had developed after the transport accident.
127Associate Professor Khalid did not think that the plaintiff’s injuries significantly affected his capacity for work, although he noted that the plaintiff preferred to work from home as he had anxiety while driving. He also did not consider that the plaintiff’s alleged injuries and disability significantly affected activities of daily living, domestic and/or leisure activities.
128Associate Professor Khalid’s diagnosis remained an adjustment disorder with anxiety.
The Plaintiff’s affidavit evidence
First affidavit
129In his affidavit sworn 16 June 2020, the plaintiff detailed his medical history. He referred to having occasional aches and pains to various parts of his body including, relevantly:
“7.In terms of my medical history, I have had occasional aches and pains to various parts of my body. This includes:
(a) …
(b)…
(c) …
(d)in around 2014, I experienced some low back pain on the right side;
(e) …
(f) …
8. I attended Parkway Medical Centre for treatment in relation to the above injuries. Generally speaking, they resolved with minimal treatment and did not result in any significant time off work.
9. In around 2015 and/or 2016, I experienced low back pain, with some referred right leg pain. I attended Parkway Medical Centre, was referred for some scans, and the pain resolved.
10.In around August 2017, I experienced some pain in my right shoulder which resolved after conservative treatment.
…
21.On 26 June 2018, I underwent an ultrasound scan of my left shoulder.
22. In the ensuing months I had lingering left shoulder pain and occasional pain in my low back and neck. I attended physiotherapy for a number of months and tried to manage as best I could. The pain persisted.”[22]
[22] PCB 5-7
130The plaintiff’s first affidavit relied upon injuries to his left shoulder and neck, as well as psychological conditions, including an adjustment disorder with depressed mood and anxiety, which were ultimately not pressed at the hearing.
131The plaintiff detailed the consequences arising from the transport accident. He experienced constant left shoulder pain varying in intensity. He had neck pain, particularly down the left-hand side, although not as severe as his left shoulder pain.
132He attended his general practitioner, Dr Mendis, for treatment. He generally tried to avoid pain medication, as he was limited in the type of medication he could take because he took blood pressure medication, Coversyl, and reflux medication, Nexium.
133He had been unable to continue to play competition cricket or coach cricket.
134His injuries had impacted his marriage negatively, and intimacy with his wife was difficult and painful because of his neck and shoulder pain.
135His relationship with his children had also been affected. He had stopped coaching his son’s cricket team and he could no longer give his daughter piggybacks or run and play with her.
136He said things had become difficult financially.
137His sleep had been affected, with dreams and flashbacks of the accident.
138He had been unable to take a planned trip to Sri Lanka to visit his father, who later died without the plaintiff seeing him.
139He said he is now a nervous driver.
140The plaintiff had also been employed full time with ANZ Bank until mid-2018. In March 2018, his position was made redundant effective from July 2018. The plaintiff had been looking for work and attending interviews, but following the transport accident he had stopped applying for work as he was anxious and in too much pain.
Second affidavit
141The plaintiff’s second affidavit made no mention of him suffering any low back pain either prior to or after the transport accident. It referred to changes to the plaintiff’s work situation since he had affirmed his first affidavit. He had been offered a twelve-month contract with the Commonwealth Bank of Australia (“Commonwealth Bank”) in international trade services. He was working full time.
142The plaintiff said he continued to have left shoulder pain every day, with a reduced range of motion in his left shoulder, particularly when raising his arm above shoulder height.
143He continued to feel pain in his neck. It was not as severe as his left shoulder pain. He had undergone an injection into his neck with no relief. He had been referred for a pain management course, but COVID-19 had made it difficult to attend.
144He continued to attend his general practitioner, Dr Mendis; his physiotherapist, Mr Hutchinson; and his psychologist, Ms Bartlett, for ongoing treatment and management.
145His marriage remained affected, and intimacy was difficult.
146His relationship with his children continued to be impacted and his ability to play, run and engage in sport had diminished.
147The temporary contract at the Commonwealth Bank provided him with some financial reprieve, but he said his employment and financial situation remained uncertain.
148He continues to try to limit his pain medication and takes over-the-counter medication when the pain is bad. He is unable to take anti-inflammatory medication due to other medical conditions.
Cross-examination of the Plaintiff
149The defendant cross-examined the plaintiff about the contents of his affidavits. It was submitted that the plaintiff had not disclosed in his affidavits the full extent of a pre-existing low back injury and had not referred in his first affidavit to the fact that, prior to the transport accident, he had experienced cervicothoracic pain and shoulder pain.[23] Consequently, the pre-existing injury to the plaintiff’s lumbar spine was more significant than the plaintiff had suggested in his affidavits. Exaggeration of the lumbar spine pain, in turn, affected the reliability of the plaintiff’s account of his left shoulder and cervical spine pain. It was submitted I should find that they were exaggerated and I should be cautious in accepting the plaintiff’s accounts of pain and claimed impairment consequences.
[23] Transcript (“T”) 35, Lines (“L”) 18 ꟷ T36, L19
150The extent of the plaintiff’s pre-existing lumbar spine injury, and the physical state of his low back prior to the transport accident, were the subject of cross-examination, including by reference to entries from the plaintiff’s clinical records from the Parkway Medical Clinic. These revealed that the plaintiff consulted Dr Mendis on several occasions before the transport accident in relation to low back pain, including on 30 August 2011, in relation to non-radiating low back pain due to heavy lifting, and on 8 September 2011 and 29 December 2015, in relation to instances of non-radiating low back pain, with tenderness on either side of the lumbar spine, with restricted movement.
151On 18 May 2016, the plaintiff consulted Dr Mendis with constant low back pain for two weeks, radiating to the right leg. There was tenderness on the right side of the lumbar spine, with restricted movements. Diagnostic imaging was requested.
152On 21 May 2016, a further consultation with Dr Mendis occurred in relation to constant low back pain, of which the plaintiff had been complaining for two weeks. The pain was radiating to the right leg and there was tenderness and restriction of movement on the right side of the lumbar spine. An x-ray had been taken which showed scoliosis of the lumbar spine and spondylitic changes at L1-L2.
153At a further consultation with Dr Mendis on 4 June 2016 in relation to the plaintiff’s low back, a CT scan was taken.
154The plaintiff consulted Dr Mendis again in relation to his low back on 9 and 17 June 2016. The clinical notes for the consultation on 17 June 2016 record the CT scan report identified a broad-based disc bulge at L5-S1, causing compression of the thecal sac and compromising a nerve root. There was tenderness on the right side of the lumbar spine with restricted movements and constant pain radiating to the right leg.
155The plaintiff underwent physiotherapy at Physiofit Berwick on 18 June 2016. The clinical notes of the physiotherapy clinic recorded:
“S/ LBP approx. 1 yr HO
worse the last few mo[n]ths being const.”[24]
[24]DACB 94
156Three further physiotherapy sessions were held on 25 June 2016, 9 July 2016, and 16 July 2016. At the session on 25 June 2016, the plaintiff’s condition was noted to have improved.
157On 26 July 2016, the plaintiff consulted Dr Mendis again in relation to his lumbar disc bulge, with pain radiating to the right leg. The clinical notes described that the plaintiff had undertaken four sessions of physiotherapy for low back pain. His condition was stated to have improved by 70 per cent.
158On 21 November 2016, the plaintiff attended Dr Mendis complaining of constant low back pain radiating to his right leg. There was tenderness on the right side of the lumbar spine, with restricted movements. Unlike earlier consultations, at this appointment, the plaintiff was prescribed a painkiller, Mobic capsule 7.5 milligrams daily.
159On 15 March 2017, there was a further consultation with Dr Mendis in relation to the plaintiff’s low back pain. The pain was said to have arisen “after playing exercises”.[25]
[25] DACB 73
160From 15 March 2017 until the transport accident on 19 June 2018, there were no further reports of low back pain recorded in the clinical records.
161The plaintiff was taken to the affidavit he had sworn on 16 June 2020 and was asked whether the low back pain and referred right leg pain he experienced in 2015 and 2016 had resolved with minimal treatment and no ongoing problems. He agreed that it had resolved with minimal treatment and no ongoing problems.
162In cross-examination, it was put to the plaintiff that, in August 2011, he had complained of constant low back pain that had been there for two days. It was thought to have been due to heavy lifting. It was suggested to the plaintiff that Dr Mendis had examined his low back, and it was tender on both sides, with restricted movements. The plaintiff was unable to remember the consultation.
163Next, the plaintiff was taken to his complaint of low back pain in December 2015 and his subsequent consultations in 2016. He was unable to recall many of the consultations or the details of the presenting symptoms.
164It was put to the plaintiff that he had been having treatment for his low back – sometimes intensive treatment including Mobic and physiotherapy – over a period of some two years and that it was not minimal treatment. The plaintiff agreed that he had had continual treatment over a period of two years, which was intensive treatment at times.
165The plaintiff was then asked about his first affidavit and specifically paragraph 9:
Q:“Well, how does that marry up with, go back to paragraph 9, referred for some scans and the pain resolved and you said, when you were asked by me earlier, it went much the same way as paragraph 8, minimal treatment. That’s just not - it doesn’t match up, does it? ---
A: On and off, but it did not stop me living regularly.
Q:No, no, I don’t care what it didn’t stop you from doing.
MR McWILLIAMS:
Well, no respect - no, with respect, Your Honour, the witness should be permitted to answer.
HER HONOUR:
Yes.
MR McWILLIAMS:
He was asked an open-ended question by my learned friend.
HER HONOUR:
Yes.
MR McWILLIAMS:
And my learned friend can’t object. Thank you.
HER HONOUR:
Q:Yes. Mr Hettiarachchi, you can answer the question?---
A:Yes, Your Honour. Yes. This, this - the back pain it’s there coming - come on and off. I recorded what the - the incident, I went, the date I took - got worse and went to physio and that’s the - I remember looking at the notes from Dr Mendis, which I have - see he’s my GP since 2006 since I came to this country and I have visited him hundreds, a hundred times, I can’t remember everything, every occasion, every issue I go and spoke to him, spoken to him, right. So this - I recall the incident got critical or when I saw him about the issue and went to physio only and this did not stop my regular activities over this - this back incident, back issue did not stop me carrying on my regular activities.”[26]
[26] T26, L17 ꟷ T27, L14
166It was also suggested that the plaintiff’s credit was impacted because the plaintiff had extensive neck and shoulder pain prior to the transport accident, about which the plaintiff’s affidavits were silent. The plaintiff was cross-examined about further entries from the clinical records of consultations prior to the transport accident at which the plaintiff complained of neck or shoulder pain including:
(a) on 7 November 2008, when the plaintiff attended Dr Mendis complaining of neck pain radiating to his left arm that was on and off;[27]
(b) on 13 July 2009, when the plaintiff attended Dr Mendis complaining of three months of constant shoulder pain with an increase on movement and repetitive use;[28]
(c) on 27 July 2010, when the plaintiff complained of neck pain on his left side, tenderness, and an inability to move his neck;[29]
(d) on 13 September 2013, when the plaintiff attended Dr Mendis complaining of neck pain at the back of his neck, and was examined, and found to be tender on the left side of the neck, with restricted movements;[30]
(e) in July 2014, when the plaintiff attended Dr Mendis complaining of sudden onset pain in his upper right shoulder and lower neck for three days, for which he was prescribed Nurofen;[31] and
(f) in 2017, when the plaintiff consulted Dr Mendis a couple of times for right shoulder and neck pain.[32]
[27] T19, L12-22
[28] T19, L30 ꟷ T20, L8
[29] T20, L14-20
[30] T21, L12-18
[31] T21, L29 ꟷ T22, L55
[32] T26, L1-3
167The plaintiff suggested the first complaint on 7 November 2008 may have been a one off, and otherwise, like consultations in relation to his lumbar spine, he could not remember consulting Dr Mendis in relation to neck or shoulder pain prior to the transport accident.
168The defendant relied upon the plaintiff’s inability to remember specific consultations in cross-examination, and omission of them from the plaintiff’s affidavits, as evidencing an exaggeration of his symptoms in relation to the transport accident claim.
169Having considered the plaintiff’s affidavits and his evidence in cross-examination, I accept, based on the totality of the evidence, that the plaintiff had a pre-existing lumbar spine injury – namely prolapsed discs at the L4-5 and L5-S1 levels. I also accept that at various times before the transport accident the plaintiff experienced low back pain and neck and shoulder pain, with some intermittent restriction of movement. The severity of the low back pain fluctuated, and on occasion it was significant, requiring the plaintiff to attend his general practitioner, to undertake physiotherapy and take painkillers.
170I further accept that much of the detail of the consultations with Dr Mendis in relation to the low back pain suffered by the plaintiff prior to and during 2015 and 2016, and the detail with respect to the symptoms the plaintiff experienced in relation to his cervicothoracic spine and left shoulder before the transport accident, was missing from the plaintiff’s affidavits. I do not accept, though, that this adversely impacts the plaintiff’s credit.
171The plaintiff did not consult Dr Mendis at all between 15 March 2017 and 19 June 2018 in respect of his lumbar spine or between 3 August 2017 and 19 June 2018 in respect of his neck or right shoulder. This suggests that either the lumbar spine, neck or shoulder injuries had resolved, or at least, were asymptomatic at the time of the transport accident. This is consistent with the detail of earlier medical consultations having been forgotten, as suggested by the plaintiff in evidence.
172It is notable too, that at the time the plaintiff gave evidence, he was aware of the contents of the clinical records. They were included in the Defendant’s Amended Court Book. He had been provided with an opportunity to consider the details of his consultations with Dr Mendis before he gave evidence, yet nevertheless maintained that he had no independent memory of those consultations. The lack of memory by the plaintiff of specific consultations or injuries is consistent with such consultations having been considered to be insignificant by the plaintiff in comparison with the matters complained about in this application. An inability by the plaintiff to recall several of the consultations relied upon by the defendant is also understandable; especially as many occurred more than ten years before the serious injury application was heard.
173I had the benefit of observing the plaintiff give evidence. I did not detect, from the evidence he gave under cross-examination, an intention by him to be evasive or disingenuous. He attempted to give genuine answers to the questions that he was asked concerning the nature and symptoms of the injuries he sustained prior to the transport accident. Taking each of the above matters into account, I have formed the view that he genuinely did not remember the detail of every consultation.
174In any event, even if there was some residual low back, cervical spine, or left shoulder pain present at the time of the transport accident, such pain does not appear to have been functionally impacting upon the plaintiff in his daily life. The plaintiff said in evidence that his low back pain did not stop him “living regularly”. Taking all these matters into account, and considering the totality of the evidence, I have concluded that the plaintiff did not deliberately set out to minimise, in his affidavits, the lumbar spine, neck, or shoulder pain he experienced prior to the transport accident. Accordingly, I am not prepared to make an adverse credit finding against the plaintiff on that basis.
Injuries suffered in transport accident
175The plaintiff sought leave on the basis that he had impairment or loss of body function involving the use of his left shoulder and the body function involving use of his cervical spine.
Left shoulder injury
176The CT PAN scan dated 19 June 2018 revealed that, in relation to the plaintiff’s left shoulder, there was no acute fracture, but there was concave deformity of the posterolateral humeral head in keeping with a Hill-Sach lesion from a prior dislocation. However, the ultrasound taken on 26 June 2018 revealed the subacromial bursa was mildly thickened without bunching on abduction. There was also rotator cuff tendinopathy without tearing and fluid in the biceps sheath without evidence of capsulitis.
177The findings of the ultrasound were consistent with the left shoulder pain the plaintiff reported to Mr Hutchison on 2 July 2018, extending along the supraspinatus fossa to the cervicothoracic region. The pain affected the plaintiff’s ability to reach above shoulder height, behind his back, and to lift any weight with his left upper limb. He had trouble getting tops on and off over his head. Lying on his left side aggravated his pain. Mr Hutchison considered that the plaintiff’s symptoms were consistent with left shoulder subacromial bursitis, with possibly some involvement of supraspinatus tendinopathy.
178The plaintiff attended regular physiotherapy sessions from 2 July 2018 until 14 November 2018.
179On 24 October 2018, Mr Hutchison encouraged the plaintiff to return to play a game of cricket.
180On 31 October 2018, Mr Hutchison reviewed the plaintiff following playing a game of cricket and reporting that he had experienced 3 out of 10 pain. On assessment of his left shoulder movements, he had 180 degree flexion and 150 degree abduction.
181The plaintiff was reviewed again on 14 November 2018; at which time he reported some aggravation of his left shoulder symptoms. His pain level was 6 out of 10. He reported having played a further game of cricket with no significant issues. Upon assessment, his left shoulder had 160 degree flexion and 150 degree abduction. Mr Hutchison stated in his report dated 8 June 2021, that when he assessed the plaintiff on 14 November 2018, he expected that with physiotherapy management and compliance with a graduated exercise program to restore shoulder mobility, rotator cuff strength and scapulothoracic control, the plaintiff’s left shoulder and cervicothoracic condition would have settled.
182The plaintiff was not seen for further physiotherapy with Mr Hutchison until 30 June 2020.
183By 19 January 2019, the plaintiff was unable to lift his shoulder and was in constant pain. He underwent an MRI scan.
184The MRI report of 31 January 2019 revealed that, by that date, the acromioclavicular joint was mildly thickened and hyperintense, suggestive of adhesive capsulitis. There was mild synovitis in the rotator interval; posterior offset of the glenohumeral joint suggesting micro-instability; and intracapsular bicipital tendinosis. Subscapularis tendinosis was apparent without discrete tear, but for the first time, small tears in the anterosuperior labrum were noted. The acromion was in the usual position and the AC joint was unremarkable. There was minimal subacromial bursitis, infraspinatus insertional tendinosis and a small under-surface partial thickness tear measuring up to 3 x 3 millimetres.
185In March 2019, Mr Carr reported that the MRI scan of 31 January 2019 showed features of adhesive capsulitis and bicipital tenosynovitis. His rotator cuff tendons were all intact. Mr Carr considered that there was no obvious subacromial bursitis.
186Dr Weekes reached a similar conclusion in his report dated 8 July 2021 and confirmed his view that the MRI scan of the left shoulder from January 2019 revealed features of adhesive capsulitis, mild degenerative changes of the anterior superior labrum, and infraspinatus tendinosis with a small under-surface partial thickness tear. This view was shared by Dr Mendis in his report dated 1 June 2021; Mr Gardiner in his report dated 10 February 2020; Mr Chehata in his report dated 23 April 2020; and Mr Padmasekara in his report dated 5 August 2021.
187In his first report dated 11 March 2021, Mr Dooley expressed the belief that the plaintiff had sustained a soft-tissue injury to his left shoulder, which involved some subcutaneous and muscular bruising and some aggravation of pre-existing naturally occurring degenerative rotator cuff change. An MRI report had commented on thickening and hyperintensity of the acromioclavicular joint, stating that it was consistent with adhesive capsulitis. Mr Dooley did not agree that the plaintiff had chronic adhesive capsulitis. He preferred the view that the plaintiff had had a psychological reaction to his situation and that his reaction was influencing his other symptoms.
188In his subsequent report, he maintained the view that the plaintiff did not have adhesive capsulitis of his left shoulder. He noted that the clinical hallmark of adhesive capsulitis on examination is that the active and passive range of motion are the same and that the range of motion most affected is external rotation. His view was that the range of motion recorded by several experienced practitioners over a several-year period was not consistent with the clinical diagnosis of adhesive capsulitis.
189Having considered the medical evidence, I am satisfied the plaintiff sustained an injury to his left shoulder in the transport accident, namely adhesive capsulitis, and a partial thickness tear of the infraspinatus tendon. In reaching this conclusion, I preferred the opinions of Mr Gardiner and Mr Padmasekara to that of Mr Dooley. Mr Gardiner had access to the radiological scans for the purposes of review, whereas Mr Dooley did not have any radiological investigations when he prepared his first report. If he had any such documents for the purposes of his second report, there was no evidence of that tendered. Further, Mr Gardiner and Mr Padmasekara’s opinions accord with the views of the treating doctors.
190I am satisfied that the plaintiff is suffering from an impairment of the function of his left shoulder.
Cervical spine
191On 19 June 2018, following the transport accident, the plaintiff underwent an unenhanced CT brain and cervical spine and an IV contrast enhanced CT scan of the chest, abdomen and pelvis, with thoracic lumbar spine reformats. No traumatic injury or fracture of the cervical spine was identified, but there was mild degenerative spondylosis and facet osteoarthritis, with an ossified supraspinous ligament at C6 level.
192A CT scan of the plaintiff’s cervical spine (non-contrast) taken on 26 August 2020, found that there was an attenuation of the cervical spinal curvature. There was normal vertebral body height and alignment and mild degenerative changes of the cervical spine. At C3-4 there was a diffuse disc bulge with small peridiscal osteophytes, but no traversing or exit nerve root impingement. There was also a diffuse disc bulge at C5-6, with small peridiscal osteophytes causing minor focal central canal stenosis. There was minor bilateral neural exit foraminal narrowing slightly more marked on the left, but no traversing or exit nerve root impingement with normal facets. Additionally, there were some degenerative changes with anterior disc calcification at C5-C6 and C6-C7 levels.
193The plaintiff consulted Dr Mendis on 22 June 2018 complaining of severe neck and shoulder pain and was unable to lift his arm above his shoulder.
194When the plaintiff consulted Mr Hutchison, physiotherapist, on 2 July 2018, active movement tests of the plaintiff’s spine revealed some pain and tightness at the end of range, with both left and right cervical rotation causing mild pain in the left cervicothoracic region. Mr Hutchison concluded that the plaintiff had most likely suffered a soft-tissue strain to his cervicothoracic region in the transport accident. In his report dated 8 June 2021, Mr Hutchison opined that this then developed into a postural dysfunction and persistent pain syndrome involving the plaintiff’s left cervicothoracic and shoulder girdle region.
195In his report dated 8 July 2021, Dr Weekes reported that, when he examined the plaintiff on 16 July 2020, the plaintiff reported ongoing neck pain with radiation to his left shoulder. He described pain scores between 3/10 and 9/10. Dr Weekes opined that the plaintiff had chronic pain affecting his neck, with a diagnosis of cervical spondylosis.
196Mr Gardiner, in his report dated 10 February 2020, noted that the plaintiff described intermittent mild to moderate neck pain, mainly on the left side. The plaintiff told Mr Gardiner that he experienced pain and stiffness on waking, particularly when moving his left upper extremity above chest level. He denied the presence of any motor or sensory neurological symptoms. He observed that the plaintiff had no visible deformity in his neck and head, and no evident muscle spasm. He concluded that the plaintiff had a myofascial injury of the cervicothoracic spinal region, with some asymmetry of range of movement, but no signs of radiculopathy.
197Mr Padmasekara noted a history of left shoulder and neck pain following the transport accident. The pain was anteriorly in the plaintiff’s shoulder, with radiation to his neck. On examination, the plaintiff had full neck motion. He had 160 degrees of forward elevation, with some irritation at the extremes of motion. He had symmetrical external rotation (60 degrees) and internal rotation (T12) with some irritability at the extremes of motion. Mr Padmasekara considered that there was an organic basis for the plaintiff’s neck injury and diagnosed myofascial pain syndrome, although he noted that it was not his immediate area of subspecialist expertise.
198In his report dated 11 March 2021, Mr Dooley noted that when he saw the plaintiff, he did not specifically describe cervical spine pain to him. It is unclear from Mr Dooley’s report what precisely was discussed, but Mr Dooley did note the plaintiff had undergone radiological investigation and there was “talk of doing various neck injections”.[33] Mr Dooley opined that he did not believe that such treatment would be helpful for the plaintiff.
[33] Exhibit 2, DACB page 38
199I prefer the opinions of Mr Gardiner and Mr Padmasekara in relation to the injury to the plaintiff’s cervical spine, principally because there is no evidence that Mr Dooley actually reviewed the radiology reports.
200Having considered all the opinions, together with the CT scan of the plaintiff’s cervical spine (non-contrast) taken on 26 August 2020, I have formed the view that consequent upon the transport accident, the plaintiff sustained a myofascial injury of the cervicothoracic spinal region with some asymmetry of range of movement, but no signs of radiculopathy. The plaintiff now suffers from a C3-4 diffuse disc bulge with small peridiscal osteophytes, but no traversing or exit nerve root impingement. He also suffers from a diffuse disc bulge at C5-6 with small peridiscal osteophytes causing minor focal central canal stenosis. There is minor bilateral neural exit foraminal narrowing slightly more marked on the left. There is no traversing or exit nerve root impingement and the facets are normal. Additionally, there are some degenerative changes with anterior disc calcification at C5-C6 and C6-C7 levels.
201I am satisfied that the plaintiff is suffering from an impairment or loss of function of his cervical spine.
Permanence
202In his report dated 8 July 2021, Dr Weekes opined that the plaintiff’s left shoulder and neck conditions were permanent and likely to continue into the foreseeable future. This view was shared by Mr Padmasekara. He considered that the plaintiff’s shoulder symptoms “have likely stabilised at present, and there may be some improvement possible with further interventions (e.g. pain management program or repeat hydrodilatation)”.[34] However, his fundamental opinion was that the plaintiff “will likely have shoulder symptoms permanently.”[35] In relation to the plaintiff’s neck condition, he opined that, despite three years of physiotherapy, the plaintiff continued to have symptoms in relation to his neck. Mr Padmasekara considered it to be likely that the plaintiff’s symptoms have now stabilised and are permanent. I find that both the plaintiff’s left shoulder and cervical spine impairments are permanent.
[34] PCB 73
[35] PCB 73
Causation
203Dr Weekes considered the transport accident to be the sole cause of the plaintiff’s injuries to his left shoulder and cervical spine. Mr Padmasekara, similarly, held the opinion that the transport accident was the sole cause of the plaintiff’s injuries to his left shoulder. He considered that the transport accident was the cause of the plaintiff’s neck injury. I accept that there was a direct causal link between the transport accident and the plaintiff’s left shoulder and neck injuries.
Are the Plaintiff’s impairment consequences “serious”?
204It is necessary for me to determine whether, when judged by comparison with other cases in the range of possible impairments or losses, the consequences of the plaintiff’s injury can be fairly described as ”at least very considerable” and certainly more than “significant” or ”marked” when compared to other cases in the range. To perform this analysis, I am required to bring to account the relevant circumstances personal to the plaintiff and then make a value judgement in accordance with the principles enunciated in Poljak.[36]
[36] (supra) at 140 (per Crockett and Southwell JJ)
205The plaintiff suffers consequences of impairment of both the left shoulder and of the cervical spine. Based on the authorities, the plaintiff cannot aggregate the impairment consequences. In assessing whether the consequences to the plaintiff are “serious”, it is necessary that I consider the consequences of each impairment separately.
206I shall start by identifying all the pain and suffering consequences the plaintiff has sustained. I will then seek to disaggregate the consequences to identify which are attributable to which impairment or body part.
The Plaintiff’s impairment consequences after the transport accident
Left shoulder
207Following the transport accident, the plaintiff claimed he experienced pain and various impairment consequences. Since sustaining the injuries to his left shoulder and neck, the plaintiff continues to feel pain in his left shoulder every day. The pain is constant, but it varies in intensity. Mr Padmasekara noted in his report dated 5 August 2021, that the severity of the pain is 2-3 out of10 on a good day, but as severe as 9 out of 10 on a bad day. Similar pain scores were described by Dr Weekes in his report dated 8 July 2021. The more the plaintiff uses his left shoulder, the more it hurts. Consequently, he avoids using his left arm whenever he can. He continues to have a reduced range of motion in his left shoulder, particularly when raising his arm about shoulder height.
208Dr Padmasekara identified that the plaintiff has limited use of his left arm.
209Dr Weekes noted that any movement of the plaintiff’s left arm aggravated his symptoms. He considered that the plaintiff has chronic pain in his left shoulder, for which there was unlikely to be a cure.
210Mr Gardiner observed movement in both the plaintiff’s upper extremities was normal apart from a painful and generally tender left shoulder. He diagnosed left shoulder region pain, with a radiological diagnosis of adhesive capsulitis and a partial thickness tear of the infraspinatus tendon.
211Mr Dooley noted, on examination, tenderness of the plaintiff’s shoulder girdle. He had active abduction to 100 degrees and forward flexion to 110 degrees. External rotation was to 40 degrees and internal rotation was to 20 degrees. Adduction and extension were to 10 degrees. Attempts to move the shoulder beyond the active range of motion were met by resistance and complaints of pain. Mr Dooley believed the constancy and intensity of the plaintiff’s ongoing shoulder pain, and his described disability, were greater than one would expect to see for the plaintiff’s organic condition.
212In her affidavit sworn 11 August 2021, the plaintiff’s wife confirmed that the plaintiff experiences daily and persistent pain and physical limitations in his left shoulder and neck, particularly when he attempts domestic chores, gardening, and other physical activities.
213The plaintiff said, in re-examination, that he has pain in his shoulder every day. The more he uses his left shoulder, the more the pain increases. He said that he has adjusted his life and has restricted use of his left shoulder in his day-to-day activities.[37]
[37] T62, L19-28
Cervical spine pain
214In relation to neck pain, the plaintiff said that the pain is present, but it is not as severe as his shoulder pain.[38] He feels pain in his neck, particularly down the left-hand side. The more he does with his neck, the more it hurts.
[38] T62, L29 ꟷ T63, L2
215Dr Weekes considered that the plaintiff was affected by chronic pain in his neck.
216Mr Gardiner considered there was no deformity visible, or muscle spasm when the plaintiff moved his head and neck. Pain was mainly over the left side of the neck. There was myofascial injury of the cervicothoracic spinal region, with some asymmetry of range of movement, but no signs of radiculopathy. There was also possible aggravation of pre-existing lumbosacral spondylosis.
217Mr Dooley said that, when he saw the plaintiff, he did not specifically describe cervical pain to him.
Medication and treatment
218The plaintiff said that he continues to attend his general practitioner, Dr Mendis; his physiotherapist, Mr Hutchison; and his psychologist, Ms Bartlett, for ongoing treatment and management.
219Mr Hutchison said that the plaintiff has had ongoing issues with pain, tightness and weakness, particularly involving his left shoulder girdle. The treatment involved a home-exercise program focusing on scapula stabilisation work and cervicothoracic strengthening and stretching. Mr Hutchison considered the plaintiff was able to engage in functional activities to a mild to moderate level, and he was unrestricted in activities involving walking, squatting, and standing. It had been recommended that the plaintiff attend a pain management course, but COVID-19, and his job with the Commonwealth Bank, have made it difficult for him to attend.
220Dr Mendis noted that treatment had involved physiotherapy, at least once a fortnight, but the plaintiff continued to have limited movements of his left shoulder. Abduction was to a maximum 90 degrees and extension was to 90 degrees. He identified that the plaintiff was unable to lift his arm above the shoulder and had pain on and off. He also detailed that he had referred the plaintiff to a psychologist, as his mental condition had deteriorated over the months preceding June 2021.
221The plaintiff tried to limit his pain medication. He took over-the-counter medication when his pain was bad. He was unable to take anti-inflammatory medication due to his other medical conditions, and explained in re-examination that he suffered from a serious gastritis issue, for which he had been prescribed Nexium, 20 milligrams daily. He said that he tried to avoid taking painkillers because they aggravated his gastritis.[39]
[39] T61, L16 ꟷ T62, L2
Cricket
222The plaintiff said his left shoulder and cervicothoracic spine injuries had left him unable to enjoy his passion for cricket. In his second affidavit, he said he tried to continue playing cricket matches in the 2018/19 and 2019/20 seasons; however, he could not bowl, bat, or field as well as he could before the accident. He played with pain and discomfort and always had to be careful of his left shoulder and neck.
223The plaintiff’s wife said in her affidavit that, prior to the transport accident, the plaintiff played and coached cricket and attended the club for social events. Since the transport accident, he had become more limited in what he could manage. He tried to continue playing for a couple of seasons, but he eventually stopped. He is less involved in the club as a result.
224The plaintiff’s friend, Mr Gerry Van Der Nest, in his affidavit affirmed on 13 August 2021, deposed to having played cricket with the plaintiff for several years. He said that, following the accident, he noticed changes in the plaintiff’s ability to play cricket, as well as his involvement at the cricket club. Whereas before the accident the plaintiff was a star pace bowler who opened the bowling, had an aggressive style of batting, and hit big sixes, after the accident, the plaintiff was slower and more careful running between wickets, had lost his aggressive batting style, did not hit big sixes, and fielded in the slips so he did not have to run or throw far.
225Notwithstanding the conclusion I have reached as to the plaintiff’s credit detailed above, the defendant also submitted that the plaintiff’s pre-existing lumbar spine injury remained relevant to the assessment of the plaintiff’s claimed impairment consequences and how they arose. It was submitted that the plaintiff was unable to play cricket, not because of the injury to his left shoulder or cervicothoracic spine, but because of injury to his lumbar spine. Consequently, the plaintiff’s inability to play cricket should be ignored as an impairment consequence of the injury to his left shoulder or cervical spine.
226The plaintiff was cross-examined about his low back pain. He could not recall attending his general practitioner on 4 April 2019 complaining of constant low back pain for the previous seven days.[40] He accepted that on 18 November 2019 he complained to Dr Mendis of sudden onset left low back pain, for which he was prescribed Panadeine Forte tablets and was sent for an x-ray.[41] He also accepted that he saw the doctor again on 10 December 2019, complaining of low back pain “on and off” for four years, and that he had suffered a lumbar disc prolapse in 2016.[42] The plaintiff could not recall the specific part of his lumbar spine which was affected, but the clinical notes record that the lumbar disc prolapse was at L4-5 and L5-S1. The plaintiff agreed that he underwent physiotherapy for his back throughout January and February 2020.[43]
[40] T28, L23-30
[41] T29, L3-9
[42] T29, L15-21
[43] T34, L18 ꟷ T35, L8
227The plaintiff was unable to recall attending Dr Mendis on 22 April 2020, complaining that he was in constant pain which was radiating to his left buttocks and low back,[44] but he did recall being referred to an orthopaedic surgeon, Mr Rez Rahim.[45]
[44] T30, L21-29
[45] T30, L30 – T31, L2
228By August 2020, the plaintiff had returned to Dr Mendis with constant back pain radiating to his left buttock.[46] The plaintiff accepted, in cross-examination, the low back pain arose after he bent down to pick up a cricket ball, and that he had required further physiotherapy treatment for his back.[47] It was put to the plaintiff that the back pain culminated in the plaintiff ceasing to play cricket. The plaintiff denied this.[48]
[46] T30, L30 - T31, L15
[47] T31, L17-23; T34, L29 ꟷ T35, L8
[48] T31, L24-25
229The plaintiff was then taken to what he had told Associate Professor Khalid, as outlined in his report dated 7 March 2020. Dr Khalid recorded that the plaintiff had “started bowling slow-medium after taping his shoulder to minimise pain”[49] and that the plaintiff had “only played two games, after which he stopped as he [had] pain in his back.”[50] The plaintiff’s shoulder was not recorded as the reason he gave up cricket.
[49] PCB 80
[50] PCB 80
230The plaintiff maintained his denial that he had given up cricket due to back pain.[51] He sought to explain that he had the injury in November 2019 and was treated in December, including by way of physiotherapy, then the cricket season stopped from mid-December to mid-January, at which time the plaintiff went to Sri Lanka to see his mother. The plaintiff said that he saw Associate Professor Khalid in early February 2020. He said, “I did not play after that particular day, but I played two games, last two games in that season in 2020”.[52]
[51] T31, L24 ꟷ T33, L14
[52] T32, L31 ꟷ T33, L2
231The plaintiff was then also taken to what he told Mr Gardiner on 10 February 2020. Mr Gardiner noted that the plaintiff told him that in December 2019 he had experienced a sudden severe increase in his left-sided low back pain, with pain in his left lower extremity, down to the front of his knee. It was recorded:
“Mr Hettiarachchi describes limitations in his domestic and sporting activities. He no longer plays competitive cricket or coaches cricket as this appears to place excessive stress on his lumbosacral region … .”[53]
[53] PCB 115
232The plaintiff appeared to accept that Mr Gardiner had not got it wrong, and that he had experienced difficulty with his low back; however, he maintained that he did not stop playing because of this. He said, “I played after, so he got it - maybe he must have misunderstood what I said”.[54]
[54] T33, L15-27
233I have considered the plaintiff’s answers in cross-examination. The plaintiff saw Mr Gardiner on 10 February 2020. It is possible that, after that consultation, the plaintiff did return to play two further games of cricket, and so did not stop playing cricket – at that point – because of his low back injury. However, by the time the plaintiff saw Associate Professor Khalid in early March 2020, he had already played the two further games of cricket and still reported to Associate Professor Khalid that he had stopped playing because of back pain. I have reached the conclusion that the plaintiff did stop playing cricket because of his low back injury and not because of his shoulder or cervicothoracic spine. Because I have reached that conclusion, I do not accept that it was accurate for the plaintiff to tell Mr Dooley on 9 February 2021 that he had stopped playing cricket because of shoulder pain.[55] I have concluded any inability of the plaintiff to play cricket is not an impairment consequence of the injuries to his shoulder or cervicothoracic spine.
[55] T34, L18 – T35, L8.
Cricket coaching
234The plaintiff said he is also now unable to coach cricket. It was submitted this was because of “the discomfort and the disconnect he was feeling with the game and his enjoyment of it”.[56]
[56] T9, L27-29
235Mr Van Der Nest said that the plaintiff ceased coaching after the 2018/19 season and thereafter was less involved with the club. Mr Van Der Nest said that now he rarely sees the plaintiff at training and social events, and the plaintiff has stopped coming to club dinners.
236In cross-examination, it became apparent that the plaintiff had coached his son’s under-15 and under-17 teams and had ceased coaching at the end of the cricket season in 2018; the cricket season runs from October to March each year. His son is now nineteen and has relocated to live in Queensland.[57] Taking these matters into account, in my view, the plaintiff’s inability to coach his son in cricket is not a relevant impairment consequence and I disregard it.
[57] T43, L29 – T44, L29.
Activities of daily living
237Since the transport accident, the plaintiff’s wife says he is affected by his physical limitations. She said she now helps him mow the lawn and a person comes in to help with lopping tree branches and carrying and moving green waste.
238The defendant submitted that the plaintiff’s lumbar spine injury “looms large in the overall picture of the plaintiff’s activities of daily living”[58] in comparison to the effect of the injuries he sustained in the transport accident. In my view, this is a reasonable submission, given the incidents of lumbar spine pain experienced by the plaintiff both before and after the transport accident.
[58] T75, L3-4
239Any pain the plaintiff suffers now because of his lumbar spine, however, does not diminish the pain suffered due to his left shoulder or subsequent cervicothoracic spinal injury.[59] I am required to consider the consequences of the long-term impairment of the function of the plaintiff’s left shoulder and cervicothoracic spine to determine whether they are ”serious”.
[59] Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232 at paragraph [110]
240The plaintiff’s affidavits did not directly raise per se an inability to perform activities of daily living as a claimed impairment consequence of either the plaintiff’s left shoulder or cervical spine injuries. An inability to perform activities of daily living was a consequence suggested in the plaintiff’s wife’s affidavit. Nevertheless, I accept the plaintiff is no longer able to mow the lawn. The plaintiff and his wife have engaged a gardener to lop tree branches and carry and move green waste. The plaintiff said, in cross-examination, he can cut the hedge. These matters indicate, in my view, that the plaintiff’s consequences in relation to his activities of daily living are minimal at best.
Plaintiff’s visit to his father
241Due to the transport accident, the plaintiff said that he could not go to Sri Lanka to see his father prior to his passing in September 2018. He was devastated by that and said, “I was so sad I missed seeing my father before, I was planning to go but this happened.”[60]
[60] T67, L10-12
242I accept that the plaintiff was unable to visit his father because of the injuries he sustained in the transport accident.
Driving
243In his first affidavit, the plaintiff said that, since the transport accident, he is a nervous driver. This was confirmed by the plaintiff’s wife in her affidavit sworn 11 August 2021. He feels anxious and uneasy when driving; particularly when he approaches the accident intersection, which he passes almost every day. It is a daily reminder of how his life has changed for the worse. In his second affidavit, he said that he is hypervigilant and finds driving stressful.
244Under cross-examination, the plaintiff said that he avoided driving as much as possible.[61] The plaintiff was asked about the 2020 tax return for the K A Family Trust.[62] This recorded that $3,602 had been spent on fuel and oil in the 2020 financial year, the equivalent of $69 per week. It was put to the plaintiff that he was not avoiding driving, but was in fact driving a reasonable amount.[63] The plaintiff accepted that he continued to drive and that the fuel expenditure reflected the purchase of about a tank of fuel per week.[64]
[61] T45, L5; T47, L16-22; T55, L5 – T56, L21
[62] T75, L7-14 and Exhibit 1
[63] T48:14-22
[64] T55, L5-17
245I accept that the plaintiff has retained the ability to drive, even if he is more nervous now than before the transport accident.
Relationship with children
246The plaintiff says his injuries continue to impact his relationship with his children. His wife agrees. The plaintiff said that his ability to run and play sport has been diminished, he is unable to give his daughter piggybacks and he can no longer play cricket with their son. I accept the plaintiff has a diminished ability to run and play sport compared to the situation prior to the transport accident. This is due to both his left shoulder and his cervicothoracic spinal injuries.
247In my view, any inability of the plaintiff to give his daughter piggybacks or to play cricket with his son are no longer relevant impairment consequences, given the plaintiff’s lumbar spine injuries, together with the current age of his daughter, and his son’s relocation to Queensland.
Sleep
248The plaintiff said in his affidavits that his sleep has been poorly affected since the date of the transport accident. He has dreams and flashbacks of the accident. He sometimes wakes up sweaty and feeling sick. He often feels tired and groggy in the morning from poor sleep. The plaintiff’s wife notices that his sleep is affected by his injuries and pain. He often wakes during the night and is often tired in the mornings, and complains to her of poor sleep.
Employment
249At the time of the plaintiff’s transport accident, the plaintiff had been made redundant from his former job, effective from 2 July 2018. Since the transport accident, however, the plaintiff has obtained alternate employment. He is currently employed on a full-time basis on a twelve-month contract with the Commonwealth Bank in international trade services. He earns $93,000 doing essentially the same work as he was doing with ANZ Bank.[65] The plaintiff said that while his temporary contract with the Commonwealth Bank had given him some reprieve, his financial situation, and his future employment, remain very uncertain.
[65] T40, L25-30
250When cross-examined, the plaintiff accepted that he had told Associate Professor Doherty that he was doing well, and the hope was that the contract would continue.[66] In these circumstances, I do not consider that the plaintiff’s current employment status is a relevant impairment consequence.
[66] T75, L15-24
Marriage
251The plaintiff said that his injuries have had a negative impact on his marriage. Things have become very difficult financially, and intimacy with his wife is now very difficult and painful because of his left shoulder and neck pain.
252The plaintiff’s wife said that the transport accident had impacted them financially, as the plaintiff could not work, or look for work, for a long time after the accident. The accident had affected their marital relationship. She sees that the plaintiff is not as happy. She notices he is anxious and prone to stress, and is more negative about life. Their physical relationship has been affected.
253Given that the plaintiff has now found employment, I disregard any financial consequences which may have impacted the marriage.
254I accept that both the plaintiff’s left shoulder and cervicothoracic spinal injuries have impacted on the physical relationship between the plaintiff and his wife.
Stoicism
255I have also considered the submission that the plaintiff was stoic. I accept that the plaintiff has moved forward with his life and has obtained new employment. To the extent that he puts up with pain and suffering without complaint, I take this into account. I do not treat him less favourably than another person who, being of less strength of character, simply resigns him or herself to his or her injury.
Disentangling the consequences of the left shoulder and the cervicothoracic spine injury
256Having regard to the evidence, I find that by reason of the injury to the plaintiff’s left shoulder only, the impairment consequence to the plaintiff is that he suffers from constant, but varying, intensity of pain in his left shoulder every day. The more he uses his left shoulder, the more it hurts. Consequently, he avoids using his left arm whenever he can. He continues to have a reduced range of motion in his left shoulder, particularly when raising his arm above shoulder height. His disability is likely to continue long into the future.
257The plaintiff tries to limit his pain medication. He takes over-the-counter medication such as Panadol when his pain is bad, but otherwise has treated his left shoulder injury with physiotherapy.
258The plaintiff is no longer able to mow the lawn and has engaged a gardener to lop tree branches and carry and move green waste.
259The consequences to the function of the plaintiff’s cervical spine are that there is some pain present over the left side of the neck, although it is not as severe as the plaintiff’s left shoulder pain. As with his left shoulder, the plaintiff tries to limit his pain medication. He takes over-the-counter medication when his pain is bad, but otherwise has treated his cervical spine injury with physiotherapy.
260There are other impairment consequences which the plaintiff has not sought to attribute specifically to either the impairment of his left shoulder or his cervical spine. As set out, these include that the plaintiff was unable to visit his father because of the injuries he sustained in the transport accident; the fact that the physical relationship between the plaintiff and his wife has been affected, and he is more anxious and stressed, and not as happy; that he has a diminished ability to run and play sport compared to the situation prior to the transport accident; and that his sleep has been poorly affected since the date of the accident by dreams and flashback of the accident.
261Taking into account the consequences which the plaintiff has satisfied me are associated with the injury to his left shoulder, and considering those consequences by reference to the range of possible impairments across the spectrum of other cases and impairments, I am not satisfied that the plaintiff’s impairment consequences are “significant or marked” and “at least very considerable”.
262Similarly, I am also not satisfied that the consequences of the plaintiff’s cervical spine impairment are at least “very considerable”.
Conclusion
263Neither the impairment consequences of the plaintiff’s left shoulder, nor his cervical spine injuries, reach the required level to constitute a “serious injury”. Accordingly, the plaintiff’s application is dismissed.
264I will hear the parties with respect to costs.
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