Heywood v TAC

[2010] VCC 1132

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION

SERIOUS INJURY

Case No. CI-09-03721

Janine Heywood	Plaintiff
v
Transport Accident Commission	Defendant

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JUDGE:	Judge Howie
WHERE HELD:	Melbourne
DATE OF HEARING:	11-12 August 2010
DATE OF JUDGMENT:	16 August 2010
CASE MAY BE CITED AS:	Heywood v TAC
MEDIUM NEUTRAL CITATION:	[2010] VCC 1132

REASONS FOR JUDGMENT

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Catchwords: serious injury application; section 93 of the Transport Accident Act 1986.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Moore QC and Ms M	Slater and Gordon
Pilipasidis
For the Defendant	Mr C Blanden SC and Ms R	Solicitor to the Transport
Annesley	Accident Commission
HIS HONOUR:

3

1 By an originating motion filed on 11 August 2009 the plaintiff seeks leave pursuant to section 93 of the Transport Accident Act 1986 to bring proceedings to recover damages in respect of injury to her as a result of a transport accident which occurred on 8 December 2006. The body functions said to be impaired are the function of the right shoulder and the function of the neck.

2          For an injury to be adjudged to be serious it must be a serious long term impairment or loss of a body function. For the impairment to be serious it must have serious consequences for the plaintiff. In most circumstances the consequences of an impairment of a body function would be understood in terms of the effect of the impairment on a person’s ability to work and earn income and the interference that the impairment causes to the person’s enjoyment of life. The nature of the consequences and whether they can be fairly considered to be serious is a matter of emphasis or classification in each case. Elements of fact, degree and value judgment are involved. The question to be determined is whether the impairment caused by the injury, when judged by comparison with other cases in the range of possible impairments or losses, can be described as being at least very considerable and certainly more than significant or marked. The impairment must also be long term. The time for making the assessment of the consequences of the impairment of the body function is at the time of the hearing of the application.

The plaintiff is 47 years of age, her date of birth being 26 September 1962. truck travelling in the same direction on the Tullamarine Freeway collided with her motor car. It was a traumatic accident. She was taken by ambulance to the Royal Melbourne Hospital. She had pain in the right clavicle, which had been fractured, and right forearm bruising, abrasions and swelling. The fracture was a displaced fracture of the mid shaft of the right clavicle. She was treated with a collar and cuff bandage for her right fractured clavicle, given intravenous Morphine and Maxolon, provided with Ibuprofen and Panadeine Forte and after several hours discharged home. When reviewed on 19 December 2006, the site of the fracture was palpable and tender, she had pain and was exercising her right elbow and wrist.

6 pressing concern about the broken bone receded, the plaintiff’s pain around
the outer aspect of the right shoulder was a concern. An ultrasound
performed on 2 March 2007 demonstrated an impingment syndrome with
bursitis and the possibility of a partial thickness tear of the rotator cuff. Mr
Dallalana considered that the bursitis and impingement syndrome was
probably caused by the abnormal mechanics of shoulder movement in
response to the fracture of the clavicle and the subsequent surgery. The
plaintiff continued to have osteopathic treatment from Dr Peters, which she
had commenced on 22 January 2007, to attempt to improve the mobility of her

4          The plaintiff attended her general practitioner, Dr Samararatna, at the clinic in Sunbury, on 9 December 2006 and on several occasions over the following weeks. The condition of her right shoulder did not improve. An x-ray was carried out on 29 December 2006 and she was referred to an orthopaedic surgeon, Mr Dallalana, who she attended on 18 January 2007. It was found that there was no sign of union of the fractured and displaced collar bone, and on 21 January 2007 Mr Dallalana performed surgery to provide for the internal fixation of the fractured bone.

5          The plaintiff continued to be in a great deal of pain and Dr King, from the same clinic, referred her to a psychologist, Dr Mills, who she attended on 14 occasions between 14 February 2007 and 10 October 2007. It is apparent from Dr Mill’s report that the plaintiff was experiencing significant emotional difficulty as a consequence of the transport accident, including as a consequence of the pain and restriction she had in her right shoulder.

Following the surgery, as the bone was starting to unite and the more referred her for an MRI of the right shoulder, which was performed on 17 April 2007. The report of MRI identified a partial thickness bursal surface tear of the supraspinatus tendon and low grade bursal inflammation.

7 shoulder to correct the bursitis, resect an acromial spur, and evaluate the
rotator cuff. His report of 10 August 2007 stated that the rotator cuff was On 21 June 2007 Mr Dallalana performed further surgery on the plaintiff’s right QC agreed suggested that on arthroscopic examination no supraspinatus tear was found

8          Mr Dallalana’s report of 10 August 2007, about seven months after the second surgery, was qualified about the success of the surgery. He considered that the fractured clavicle had stabililised. It had “almost fully healed” and he “expected (it) to continue to do so fully”. He considered there to be “no suggestion here of any long term impairment”. However, he was guarded in his prognosis with regard to the impingement syndrome, reporting that while the plaintiff was doing far better than average for this type of surgery and condition (whatever that might mean), it was too early to tell. He thought it very probable that she would recover completely from the impingement and bursitis condition and not develop any long term impairment, but stated that this could not “ be stated with confidence” as the plaintiff was “still in the early phases of recovery and an impingement syndrome is known to recur despite initial recovery.” He advised that if the plaintiff had ongoing issues it may be necessary to conduct further examination and diagnostic testing.

9          The material tendered in evidence and the viva voce evidence of the plaintiff reveals that the plaintiff has had ongoing pain and difficulty with her right shoulder. She has not recovered from the injury to her right shoulder and has continued to suffer from pain in the right shoulder and neck and from restricted movement of her right shoulder and arm.

10        Following the surgery in June 2007 Mr Dallalana advised physiotherapy. The plaintiff continued to attend the osteopath, Dr Peters, and to have osteopathic treatment weekly. The treatment included rehabilitation work with the right

shoulder with traction work and mobilisation, exercises and swimming. She
continued to attend her general practitioner, Dr Samararatna, on a regular
basis. By 17 December 2007 she was still having ongoing pain in the right
shoulder. Dr Samararatna reported that she suffered from continuing episodic
pain in her right shoulder, neck, back and head, which varied from moderate
to severe. He considered that the plaintiff’s symptoms had stablilised, that no
further surgical intervention was warranted and that she should continue with
conservative treatment such as physiotherapy and analgesic medication. He
expected the episodic pain to continue for the foreseeable future and advised
that it would need to be managed with lifestyle changes, strengthening
exercises and ongoing medication.

11        The plaintiff has proceeded with treatment as Dr Samararatna advised and the nature of the injury to her right shoulder has remained as he expected. On 20 February 2008 the plaintiff began attending Sunbury Physiotherapy Clinic. She was having pain along the medial border of the right scapula and

over the tip of the right shoulder. She also had headaches and neck pain. She commenced physiotherapy with respect to the cervical spine and right shoulder with manual techniques to improve soft tissue and joint mobility,

exercises to improve range of mobility, and exercises targeted at the neck and shoulder stabilisers. Initially, there was improvement in her symptoms, and on 14 May 2008 she reported that her shoulder felt improved and stronger, but

fatigued and with an occasional ache. Strength testing of the infraspinatus
and supraspinatus muscles were at 80% strength and there was some
improvement with shoulder flexion.

12        It is apparent from the reports that at this period of time in 2008, while there was improvement in the plaintiff’s right shoulder at times, she continued to have pain and restriction of movement. When she attended the neurologist Dr Stark on 7 January 2008 she had pain in her right shoulder, the bra strap on the right shoulder caused pain, and while the range of movement of the right shoulder was “not bad”, there was “some cracking and crunching of the shoulder”. Dr Serry, a psychiatrist, who examined the plaintiff on 31 January 2008 reported a similar history of physical symptoms, and significant psychological sequalae, which he attributed partly to a post traumatic stress disorder and partly to a reactive component of the physical injuries. When the plaintiff was examined by Professor Hadj, a general surgeon, on 13 February 2008, he found a moderate restriction of movement with flexion at 180 degrees, abduction at 120 degrees, adduction 60 degrees, internal rotation at 60 degrees and external rotation at 70 degrees.

13        When the plaintiff was examined by Mr Doig, an orthopaedic surgeon, on 28 July 2008, he found restriction of movement, more marked than that found earlier that year by Mr Hadj. Flexion was 140 degrees, extension 55 degrees, abduction 145 degrees, adduction 35 degrees, external rotation 90 degrees and internal rotation 55 degrees. He also found 1 cm of right upper arm wasting, when compared with the left arm. Her right shoulder remained sore. It was occasionally uncomfortable and occasionally very sore. The right clavicle did not give her a lot of trouble. Mr Doig examined also the plaintiff with respect to symptoms related to her cervical spine and lumbar spine which she was also experiencing. The assessment he made of the right shoulder was that the plaintiff had made a reasonable recovery, but that it was not complete. He thought it unlikely that she would require further surgical intervention.

14        In September 2008 the plaintiff had severe headaches, which led to an appointment with an ear, nose and throat surgeon, Mr Campbell, who performed endoscopic sinus surgery on 22 September 2008 removing thickened mucosal tissue. Following this operation her headaches were less severe than they had been.

15        It is apparent from the reports tendered that the plaintiff’s difficulties with her right shoulder persisted during 2009. She attended the physiotherapist on 3 February 2009 because of pain in her lumber spine. When she attended on 7

August 2009 she reported right shoulder pain, as well as cervical and lumbar pain. When she was assessed by an occupational physician, Dr Castle, on 4 August 2009, she had neck and low back pain and her right shoulder was still painful. Her right shoulder ached. Her right arm felt weak. She had difficulty washing her hair and attending to domestic tasks. Doing the washing was

very hard. Hanging out the clothes was the most difficult task. She avoided
vacuuming and spread household cleaning over a number of days. On
examination Dr Castle also found a reduced range of movement of the right
shoulder.

16        On 18 November 2009 Dr Samararatna reported that the plaintiff “has continued to suffer from chronic pain in her neck, right shoulder and lower back with pain radiating down both legs. I have reviewed her on a regular basis and have not seen any improvement in her condition.” His report referred to her lumbar and cervical spine symptoms and her anxiety and depression as well as her right shoulder symptoms. It was then three years after the accident. The pain to the plaintiff’s right shoulder was chronic. It had continued over those three years. While she was able to carry out most tasks at home and at work, it made those tasks more difficult and exacerbated the pain. She was reliant on analgesic medication, including Panadeine Forte, every day in order to cope with her pain. As before, Dr Samararatna continued to advise conservative treatment, physiotherapy, pain medication and lifestyle modification. He expected her to continue to suffer episodes of pain in the future.

17        On 8 January 2010 the plaintiff commenced a further period of physiotherapy with the Sunbury Physiotherapy Clinic. The physiotherapy related to her lumbar and cervical spine symptoms as well as her right shoulder. With respect to the right shoulder, she reported that her shoulder felt more stable, but still weak. The physiotherapist considered that she had “stability issues of the shoulder complex” and that she would benefit from further physiotherapy treatment including to her right shoulder.

18        When the plaintiff was examined by Mr Fogarty, an orthopaedic surgeon, on 10 February 2010 she told him that her right shoulder still caused pain in the front and top with some aching into the right upper arm. She felt that she had

a little less strength in the arm, which often felt tired and heavy. On
examination of the right shoulder he found less than a full range of movement.
Forward flexion was 160 degrees, extension 50 degrees, abduction 170
degrees, adduction 40 degrees, internal rotation 80 degrees and external
rotation 70 degrees. He considered her prognosis to be “reasonably good”.
His opinion was that she had “recovered most of her function” but that she
had “some residual pain” and would “probably continue to have some episodic
pain”. He considered it “likely that her relatively good function will continue
and may even improve somewhat.”

19        Dr Castle assessed the plaintiff a second time on 1 June 2010. At that time her right shoulder ached in the joint. Reaching up high, such as putting clothes on the line, increased the pain in her right shoulder, as did washing her hair. Her right arm felt weak. She tried to avoid vacuuming. The range of movement of the right shoulder was reduced. Forward elevation was 140 degrees, backward elevation 60 degrees, abduction 130 degrees, adduction 60 degrees, internal rotation 60 degrees and external rotation 90 degrees. Dr Castle considered it to be unlikely that there would be any change.

20        Dr Samararatna, who was the plaintiff’s doctor before the accident, and who has seen her regularly since, has a view that is less optimistic than Mr Fogarty and more in line with that of Dr Castle . In his latest report on 4 July 2010 he advised that the plaintiff has continued to experience frequent headaches, lower back pain radiating to her right leg, shoulder and neck pain and limited movements on abduction. She was “very reliant” on pain medication and had been prescribed anti-depressant medication. He expected her to continue to experience ongoing problems in the future. The ongoing pain and limitations contributed to her depression. She was working full time as a scrub nurse in surgery. As her duties did not involve physical lifting she was able to cope with her duties without restrictions or limitations. She relied on her husband to help with domestic tasks.

21        At the time of the accident the plaintiff was a qualified division 2 nurse. In August 2006 she had commenced training as a theatre nurse at St Vincent’s Private Hospital. She was working full time and studying to become a division 1 nurse. Following the accident she was absent from work for almost ten months until 24 September 2007 when she commenced a return to work plan at St Vincent’s, initially working reduced days and hours, with a view to gradually increasing to full time pre-injury employment. Over time her hours increased to three 10 hour shifts a week. However, her return to work lasted only 12 weeks. Due to the consistent pain and changes to her lifestyle she found that she was not emotionally able to cope. In about January 2008 she was called to the unit manager’s office and told that they thought she was not doing so well and her employment with St Vincent’s ceased. She was off work until the end of June 2008 when she commenced employment as a theatre nurse at John Fawkner Hospital. By mid 2009 she was working full time and had resumed part time studies for a Division 1 Bachelor of Nursing degree.

22        It is apparent that the plaintiff is experiencing pain in her low back, her cervical spine and her right shoulder. Senior counsel for the plaintiff and for the defendant agreed that in determining whether the plaintiff had sustained a serious injury as defined it is necessary to consider the body function said to be impaired and determine whether the consequences of the impairment of that body function can be adjudged to be serious and long-term. The impairment of the different body functions cannot be aggregated. Mr Moore QC for the plaintiff acknowledged that the issue in this case is whether the injury to the plaintiff’s right shoulder is a serious injury. The submissions of counsel were made on that basis.

23        Elements of degree and perception are involved in assessing the effects of an injury. Mr Blanden SC for the Commission, while acknowledging that the plaintiff continues to have shoulder pain and some restriction of movement, submitted that she had received the appropriate treatment, that good repair had been effected, that she had made a good recovery and was continuing to improve. I do not agree with that submission.

approximately nine months and when she returned she was not able to
perform her work sufficiently competently to maintain her position. The pain
and discomfort she was experiencing, and the limitations that placed on her at
work and at home, contributed to her being depressed and requiring treatment
for depression and anxiety. She was absent from work for a further period of
approximately six months when she obtained her present position as a theatre
nurse. Generally she has been able to do the work, but at a cost. If she has
to lift heavy items, or have her arms raised, she develops a pain in her right
shoulder, a severe ache that goes into her upper right arm and up to the base
of her neck. For some orthopaedic work the trays of instruments are heavy.

24        No challenge has been made to the plaintiff’s credit. At the time of the transport accident she was a competent middle aged woman who looked after a husband and two adolescent children, ran a household and worked full time in a demanding job. She had a strong commitment to her profession as a nurse and was studying part time to improve her professional qualifications. Her work was interesting and skilled and she enjoyed it. In her spare time, which was limited having regard to her work and domestic commitments, she enjoyed working in the garden, participating in the training of her son’s football team and some entertaining.

25        The injury to her right shoulder has proved to be a chronic injury. Despite two surgical treatments and extensive physiotherapy over more than three years, she has continued to have pain in her shoulder and restricted movement of

her right arm. If she had been a less active person the impact of this pain and restriction may have been less, but she was a capable nurse, working full time and managing a household and family, and the impact on her has been

considerable. It caused her to be absent from her work initially for for half an hour or more, cause pain in the shoulder which radiates into her neck and head. There are occasions when she has had to stop and leave the operation. She seeks to avoid some types of surgery, such as ear, nose and throat surgery and faciomaxillary surgery, because if she does it she ends up with a lot of pain. At the end of each shift she is very tired and sore. She intends to try to persist with her work and is continuing her study part time, but, as Dr Castle noted it is clearly a struggle and in his opinion she should only be working 30 hours a week.

26 personal life. Tasks such as hanging clothes on the line and vacuuming
cause her shoulder to ache and pain to radiate into her neck and head. She
needs assistance from her husband. Lifting a washing basket causes similar
problems. She tries to work keeping her elbows at her sides. She avoids
gardening, an activity she previously enjoyed. She can no longer participate
in the training for her son’s football team. She has withdrawn from social
activity. She takes analgesic medication most days, Panadol or Nurofen up to
eight a day, and Panadeine Forte once or twice a week, up to four a day. She

The pain in the plaintiff’s shoulder causes her difficulty with her domestic and and the resulting pain and the impact it has on her daily life, her work and enjoyment of life, contribute to her depression.

27        In my judgment, the consequences of the plaintiff’s injury in terms of pain and suffering, interference with enjoyment of life and interference with her ability to carry out and enjoy her work, can be fairly described as being more than

significant or marked and as being at least very considerable. I am satisfied that the impairment of the function of the plaintiff’s right shoulder caused by the injury is long term.

28        Accordingly, I find that the injury to the plaintiff’s right shoulder as a result of the transport accident occurring on 8 December 2006 is a serious injury as defined by subsection (17) of the Transport Accident Act 1986. Leave is granted to the plaintiff pursuant to section 93(4)(d) to bring proceedings to recover damages in respect of the injury.