Jackson v Transport Accident Commission
[2021] VCC 975
•21 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-01104
| MATTHEW SCOTT JACKSON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 June 2021 | |
DATE OF JUDGMENT: | 21 July 2021 | |
CASE MAY BE CITED AS: | Jackson v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 975 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to neck and to left shoulder in subject transport accident – whether neck injury causally related to transport accident – plaintiff involved in a number of other transport accidents and injuries – disentanglement of consequences from other physical injuries – whether consequences “very considerable”
Legislation Cited: Transport Accident Act 1986, s93
Judgment: Leave granted to bring common law proceedings.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Mr G Clark | Shine Lawyers |
| For the Defendant | Mr J L Batten with Mr P V Bourke | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Preliminary
1Over the course of his forty-eight years, Mr Matthew Jackson has been involved in a remarkable number of workplace and transport accidents, resulting in injuries to various parts of his body. This application is concerned with injuries suffered to his neck and left shoulder in an accident on 17 June 2010 (“the pallet incident”).
2I will not consider in detail all these accidents and injuries, rather only those which affect consideration of the consequences of the pallet incident. There is no evidence to suggest Mr Jackson suffered any impairment to the left shoulder or neck before 2010.
3The major incidents are as follows:
(a) On 24 January 2010, while riding his motorbike, Mr Jackson suffered fractures to the fingers of his left hand and his left elbow. He required surgery and sustained nerve damage. He was off work for three or four months and has continued to suffer loss of function and restrictions in the use of his left hand since (“the 2010 motorbike accident”);
(b) The pallet incident occurred on 17 June 2010 when Mr Jackson was struck on the side of his head and shoulder by pallets which fell while being unloaded from his truck by a forklift.[1] He claims to have suffered injuries to his neck and left shoulder. At the time, he was employed by Hicks Transport Pty Ltd. He was taken to Dandenong Hospital for investigation and discharged. He was off work for several days. Subsequently, on 29 August 2019, Professor Richard Bittar, neurosurgeon, performed fusion surgery at the C5‑6 and C6-7 levels. Mr Jackson alleges the need for that surgery arose as a result of this incident;
(c) In August 2010, Mr Jackson aggravated his left shoulder injury while throwing a “load binder”[2] over his truck. A subsequent ultrasound investigation revealed a tear to the supraspinatus tendon which required repair surgery, carried out by orthopaedic surgeon, Mr Grant Pang (“the throwing incident”). Although occurring after the throwing incident, the plaintiff submits the pallet incident materially contributed to the need for this surgery;
(d) On 18 September 2011, Mr Jackson was riding his motorbike when he came off the bike. He suffered a tear to the soft tissues of the right shoulder which required repair surgery, again conducted by Mr Pang (“the 2011 motorbike accident”);
(e) On 13 September 2016, Mr Jackson again injured his right shoulder while delivering milk. Mr Pang again operated on his right shoulder on 2 March 2017 (“the milk delivery incident”).
[1]The use of the forklift removing pallets from Mr Jackson’s truck means the incident is a “transport accident” and the provisions of the Transport Accident Act 1986 have application
[2] A strap or piece of like equipment used to tie down loads on trucks
4Mr Jackson has had a range of treatments for all these injuries. He has a significant psychological condition in the nature of a mood or bipolar disorder which has required inpatient admissions and treatment. He was off work for periods in 2010 and 2011. He returned to work in 2014 as a driving instructor. He worked as a delivery driver for a milk company in 2015, and also as a truck driver. He has not worked since the neck surgery.
5Mr Jackson claims ongoing pain and restriction in the neck and left shoulder. He suffers headaches, which he says are getting worse. He says a range of domestic, social and recreational pursuits have been affected as a result of the injuries suffered in the pallet incident.
The application
6This is a serious injury application pursuant to s93 of the Transport Accident Act 1986 (“the Act”) for injuries said to have been sustained in the pallet incident.
7The body functions said to be lost or impaired are the neck; alternatively, the left shoulder. Originally, the application also sought leave in relation to a severe mental disorder. That part of the application was abandoned at the outset of the hearing.
8Mr Batten, Counsel for the defendant, identified the issues in the application as:
· While accepting Mr Jackson suffered injury to his left shoulder in the pallet incident, it was in the nature of a strain which was short term and transient. He was able to return to work on 21 June 2010, first on light duties, and then returned to his pre-injury duties with little treatment, until the throwing incident. Any ongoing left shoulder problems and subsequent surgery were related to the throwing incident.
· The defendant disputed Mr Jackson suffered any neck injury in the pallet incident. He did not complain of symptoms, did not seek medical treatment for a considerable period and, as stated, resumed work within a few days.
· The plaintiff had not satisfactorily disentangled the consequences of injuries suffered in the other incidents from the consequences of those suffered in the pallet incident.
· When regard was had to other cases in the range of possible impairments, the consequences to the plaintiff of either the left shoulder or neck injuries arising out of the pallet incident, did not meet the “very considerable” test.
9The task of sorting out which incidents caused which ongoing consequences is not straightforward. It requires an examination of the credibility of the evidence of the plaintiff, the sequelae of each of the incidents as gleaned from reports, clinical notes and other contemporary documents, and a review of the evidence of the treating and consultant doctors.
10I am not satisfied Mr Jackson suffered an injury to his neck in the pallet incident of any significance. I am satisfied he suffered an injury to his right shoulder, the consequences of which meet the serious injury threshold as s93 of the Act requires. These are the reasons.
The credibility of the Plaintiff
11The plaintiff presented as a reasonable witness attempting to give responsive answers in the course of cross-examination.
12There were no major credit issues put to him by Mr Batten, Counsel for the defendant. There were aspects of the various incidents and the treatment which ensued which Mr Jackson could not remember. That is not surprising, given the myriad of incidents and injuries he has suffered.
13It was suggested by Mr Batten that Mr Jackson had intentionally withheld from Mr Pang, details of the throwing incident and its affect on his left shoulder. However, I accept his explanation that he viewed the source of his left shoulder problem as the pallet incident, although there was some aggravation in the throwing incident. This adequately explains why no history of the latter incident appears in Mr Pang’s reports.
14In his affidavit, he said his involvement in martial arts had been affected by his neck injury. In cross-examination, he accepted he had given up martial arts well before the pallet incident because he needed time with his young family. Likewise, he gave up archery prior to the pallet incident.
15Mr Batten also suggested he had failed to provide a history to doctors of an incident in August 2014 when his motorbike fell from a trailer, striking his left shoulder. I accept his explanation that it was only a minor incident.
16Mr Jackson admitted that he had kept riding his large motorbike until he sold it in 2016. He would ride it each year for about three months during the better weather, six or so times during that period. However, none of these matters are significant credit issues and do not cause me to reject his evidence as unreliable.
The 2010 motorbike accident
17On 24 January 2010, Mr Jackson was riding his motorbike when, upon turning into a driveway, his left hand became caught between the bike handle and a fence. He was taken to the Northern Hospital, where he was found to have fractured the fourth and fifth metacarpal, which required reduction with internal fixation. The fixation devices were subsequently removed in October 2010.
18Mr Jackson has had ongoing issues with the fingers of the left hand to the present time. These include numbness and tingling. On 10 December 2010, Mr Anthony Berger, a hand surgeon, released the left carpal tunnel, and transposed the ulnar nerve at the elbow. Mr Jackson was off work for three to four months and, following rehabilitation, returned to truck driving on a full-time basis. He has been restricted in his ability to use his left hand freely and grip securely since that time.
The pallet incident
19Mr Jackson said pallets which were being unloaded with a forklift from his truck, became unbalanced and fell, one striking him on the left side of his head and another striking him on the left shoulder. He fell to the ground, dazed.
20He was taken to Dandenong Hospital by ambulance. He complained of left shoulder pain. X-rays of his neck and left shoulder were taken and disclosed no abnormality. He was discharged home that day. He was given a certificate for a week off work.
21Mr Jackson was off work until 21 June 2010. When he returned, he went back to driving a Kenworth prime mover, although said he was given a “jockey” to assist.[3] He remained on normal duties until approximately 13 August 2010, when the throwing incident occurred.
[3] Transcript (“T”) 38, Line (“L”) 1
22Mr Jackson said that immediately after the pallet incident, he suffered neck pain and restriction. He said:
“… I understood that the left shoulder pain, left arm pain and the pain which I had on the left side and back of my neck was all due to the severe injury I sustained to my left shoulder.”[4]
[4]Plaintiff’s Court Book (“PCB”) 30
23It was not until October 2016, when he was referred to Professor Richard Bittar, neurosurgeon, that he was advised that it was likely his neck had been injured in the pallet incident and had not been diagnosed until then. He had thought that the neck pain was referred from his left shoulder.
24Mr Jackson was referred to Mr Pang, who injected the subacromial area with cortisone, and referred him for physiotherapy. On 20 May 2011, Mr Pang carried out an arthroscopic subacromial decompression to the left shoulder. The partial tear was debrided and extensive bursitis was found.
25From April 2015, Mr Jackson returned to again see Mr Pang in relation to his left shoulder. He also saw Dr Gavin Weekes, a pain specialist, and a psychiatrist, Dr Graeme Kernutt.
26Dr Weekes injected Mr Jackson’s neck with cortisone and undertook a radiofrequency denervation in July 2018.
27In August 2019, Professor Bittar performed a cervical spinal fusion at the C5-6 and C6-7 levels.
28Mr Jackson has continued to consult Professor Bittar. He has been referred for physiotherapy treatment and seen an occupational physician, Dr Kilner Brasier.
29Mr Jackson sees his current treating practitioner, Dr Theodore Vanderzeil, each month or so. He is prescribed Zoloft and Epilim. He continues to undertake physiotherapy treatment. He sees a psychologist, Ms Rhonda Jamieson, on a regular basis.
30In relation to his neck, Mr Jackson says that, although the surgery provided a stable fusion and reduced symptoms in his arms, he continues to experience ongoing pain and restriction in his neck. He still suffers headaches, although not as bad as before the surgery. He suffers pain into his left arm from time to time.
31Mr Jackson’s sleep is affected and he regularly wakes during the night.
32For many years he has suffered depression and anxiety, which is exacerbated by his ongoing pain.
33He goes to the gym, does rehabilitation and undertakes hydrotherapy. His intimate relationship with his wife has been affected.
34He claims a range of recreational and sporting activities are curtailed or lost. He is no longer involved in martial arts, which he enjoyed before the pallet incident. He rode his motorbike after the incident, but not with the freedom of before. Subsequently, he sold the motorbike. He had played the guitar up until the time of his neck surgery, but has been unable to do so without pain since that surgery.
35He claims his social life has been affected, and he is restricted in the more heavy domestic activities he used to enjoy.
36He has not returned to employment since his neck operation. Between July and September 2020, he undertook a certificate in work health and safety. He has sent his résumé, to prospective employers in the hope of obtaining work in this area.
37In relation to his left shoulder, he said he dislocated the shoulder, which was put back in place at the Dandenong Hospital. As stated, he returned to work within a relatively short period, but was referred for physiotherapy. He took pain and anti-inflammatory medication.
38According to his affidavit, Mr Jackson says he is restricted in the movements of his left shoulder. Elevating his left arm to shoulder level causes tightness and pain. He is unable to perform heavier work at or above shoulder height, or perform repetitive work, or lift heavier objects.
39His left hand was significantly impaired by reason of the injury suffered in the 2010 motorbike accident. The injury to his left shoulder made using the left arm even more difficult.
40He says his enjoyment and involvement in martial arts, motorcycling and playing the guitar have all been affected because of his injuries. He is limited in what he can do around the home and in the garden. Taking his German Shepherd dog for a walk increases the pain because of the strain on his shoulder.
41The medication he takes for pain relief is not only for his neck, but also his shoulder.
42He says his left shoulder continues to be painful. It catches and locks up. He undertakes exercises at the gym to maintain movement in the shoulder. This causes additional pain. He says putting on a jumper or a t-shirt is difficult; it is hard to reach behind him using his left arm. If he lies on his left shoulder in bed, he suffers pain and is woken up. Driving a car is more difficult, and he tends to drive one handed.
43His left shoulder became sore when he was undertaking the occupational health and safety course. He has tried swimming as part of his rehabilitation, but the restriction of movement makes swimming difficult. It is hard to use a saw or undertake any outside strenuous activity. Getting up a ladder and clearing gutters was difficult. He could not assist his partner paint the house.
44He no longer rides his pushbike, although rides a stationary bike in the gymnasium from time to time. He still drives, but his wife does the longer journeys. He assists with the shopping.
45His complaints of pain, and restriction and activities, are supported by affidavits of his wife, Ms Lisa Kerr-Jackson, and his father-in-law, Mr Peter Kerr.
The throwing incident
46On 13 August 2010, Mr Jackson drove his truck to pick up some gates. He threw a load binder over the truck with his left arm and felt a sharp pain in his left shoulder. He saw his general practitioner, Dr Caroline Royse.[5] Subsequently, an ultrasound showed a tear to the supraspinatus tendon. This was the first time an ultrasound to the left shoulder had been undertaken. He had physiotherapy and took pain and anti-inflammatory medication. He remained at work on light duties.
[5]Mr Jackson has had a number of general practitioners - Dr Caroline Royce (North Eltham Medical Centre), Dr Dean Miller (Diamond Creek Medical Centre) and, more recently, Dr Theodore Vanderzeil (North Eltham Medical Centre)
47Mr Jackson was referred to Mr Grant Pang, orthopaedic surgeon, by his general practitioner, Dr Dean Miller, on 6 September 2010. In cross-examination, Mr Jackson accepted he did not provide a history of the throwing incident as he saw the problems with his left shoulder as stemming from the pallet incident. He said the pallet incident was “when it happened”.[6] The throwing incident was “an exacerbation”.[7]
[6] T45, L31
[7] T46, L12
48As stated, Mr Pang undertook surgery to repair the tendon on 20 May 2011. After a period of rehabilitation, Mr Jackson returned to work in late June 2011, on light duties with the aid of a jockey. He then drove smaller vehicles. His employment was terminated on 19 September 2011, as no further light duties were available.
49Around this time, Mr Jackson was having significant marital issues. He was diagnosed with Bipolar Disorder and was prescribed Epilim, which he has continued to take to the present time. He required time away from work to deal with these issues from time to time. The marital issues were sorted out in the Family Court in 2015.
The 2011 motorbike accident
50On 18 September 2011, Mr Jackson fell from his motorbike when a car stopped in front of him. He ran into the back of that car. He was in hospital for several days and investigation revealed a full-thickness tear of his right shoulder. He again came under the care of Mr Pang, who, in November 2011, performed a right shoulder arthroscopy.
51Following the surgery, Mr Jackson was off work for a period. He underwent retraining through Nabenet and in August 2012, obtained work as a driver trainer. Subsequently, he worked as a driving instructor until January 2014. In February 2014, he worked as a forklift driver trainer.
The milk delivery incident
52In November 2015, Mr Jackson commenced work as a milk delivery driver. He had been driving trucks for various employers up to that time. In September 2016, he hurt his right shoulder lifting heavy crates of milk. He again saw Mr Pang, who performed further surgery on 2 March 2017 to his right shoulder to repair the rotator cuff.
Medical evidence – the neck
53According to the ambulance report, Mr Jackson was said to be suffering an aching pain to the left side of his head and neck, together with pain in the left shoulder area.[8]
[8]PCB 83
54The Dandenong Hospital Discharge Summary[9] recorded Mr Jackson as having been struck to the left temple and left shoulder in the pallet incident. An abrasion was noted on the left forehead. Neurological and spinal examination was said to show “nil focal”.[10] A provisional diagnosis was abrasion to the left forehead and soft-tissue injury to the left shoulder. An x-ray of the cervical spine was said to show no abnormality.
[9]PCB 87
[10]PCB 87
55Mr Jackson underwent physiotherapy with Mr Luca Lucchesi from August 2010. The focus was on the left shoulder and scapula.
56The attention by Mr Jackson’s general practitioner, Dr Carolyn Royse, whom he first saw in November 2010, was also upon the left shoulder. Likewise, the reports and opinions of Mr Grant Pang, the orthopaedic surgeon who undertook surgery to Mr Jackson’s left and right shoulders.
57However, when seen at the Diamond Creek Medical Centre on 13 August 2010 by Dr Dean Miller, the following is recorded:
“2/12 [2 months] ago WC [Worker’s Compensation] injury
…
Had 2 x 40kg empty wood pellets (sic) fall from 2m onto his head and left shoulder …
…
Intermittent symptoms of dull ache and stiffness in left neck and shoulder since the accident
…
Today was throwing rope over truck and had acute twinge in left shoulder/supraspinatus area that felt like he’d torn a muscle
…
Tender Cx [cervical] spine midline and left facet joints and involved muscles
Normal Cx spine function.”[11]
[11]Defendant’s Court Book (“DCB”) 184-185
58Subsequent attendances were focused on the left shoulder.
59In a report dated 16 February 2017, Dr Vanderzeil of the North Eltham Medical Centre, said, in relation to the history provided by Mr Jackson:
“He stated that he has had persistent neck pain with associated left arm pain to the hand since the injury.”[12]
[12]PCB 120
60Dr Vanderzeil, in a report dated 19 May 2021 in relation to Mr Jackson’s neck injury, said he had no capacity to work as a truck driver as a result of that injury.
61In June 2017, Mr Jackson’s general practitioner referred him to Dr Gavin Weekes, a pain specialist. Mr Jackson was complaining of neck pain radiating down his left arm. He was taking a range of medication, including Epilim, Tramadol, Endone, Valium and Nurofen. Dr Weekes’ letter to Dr Vanderzeil of 28 June 2017 notes:
“… His second injury was an injury at work in 2002 and 2010 (sic) when a forklift truck dropped 40 kg pallets on top of him and he injured his head and shoulder, but did not complain of any significant neck pain following this.”[13]
[13]PCB 130
62In his report to the plaintiff’s solicitors of 13 October 2017,[14] Dr Weekes appeared to confuse the pallet incident with the throwing incident. He said:
“He had two other injuries while he was at work; one in 2002 when a forklift truck dropped [a] 40 kg pallet on top of him when he injured his head and his shoulder, but did not complain of any significant arm pain following this. This occurred in 2002. He had another injury, in 2010 when he was throwing ratchet straps over a truck load and started developing quite severe neck pain with radiation into his left arm. It seems to be apparent that this third injury in June 2010 was the predominant cause of his ongoing symptoms of neck pain with radiation into his left arm.”[15]
[14] PCB 132-133
[15] PCB 132-133
63Dr Weekes considered a number of possible diagnoses, including left C7 radiculopathy. He undertook a nerve root block with local anaesthetic and steroid. Dr Weekes said:
“l am of the opinion that he has suffered a left C7 radiculopathy plus he has evidence of cervicogenic headaches following his work place accident in 2010. I am also of the opinion he has persistent postoperative ulnar and median nerve pain following his motor vehicle accident in 2010.”[16]
[16]PCB 133
64The nerve root block provided significant pain relief; however, with time this wore off.
65In July 2018, Dr Weekes performed a dorsal root ganglion pulsed radiofrequency neurotomy to the C7 area. Initially, Mr Jackson had significant improvement in his pain and subsequently returned to full-time work as a driver trainer. The pain relief persisted for about six months.
66Mr Jackson was referred to Professor Bittar, neurosurgeon, by Dr Weekes, and saw him first in October 2016. Professor Bittar noted the complex history of accidents and injuries. The history that he obtained was of the pallet incident on 17 June 2010, which he noted did not produce any significant neck pain. He further received a history of the throwing incident, as a result of which Professor Bittar said Mr Jackson suffered pain in his left shoulder and neck. Professor Bittar considered that his neck condition was as a result of the throwing incident, given the onset of pain from that time.
67An MRI scan of the cervical spine taken on 22 March 2017 noted disc bulging at C5-6 and C6-7, with osteophytic spurring and foraminal narrowing, and contact and subtle flattening of the exiting nerve roots.[17] A further MRI scan of 17 October 2018 showed similar results. The flattening of the exiting left C6 and C7 nerve roots were reported as:
“These could be a potential cause for [the] patient’s left sided radiculopathy.”[18]
[17] PCB 75
[18]PCB 78
68On 29 August 2019, Professor Bittar carried out C5-6 and C6-7 anterior cervical decompression and fusion surgery. The surgery was technically successful, with a solid fusion. Professor Bittar said that Mr Jackson continued to do well with reduced pain, although the fusion had a significant impact on his recreational and sporting activities.
69Mr Jackson was seen at the request of his solicitors by Mr Kenneth Brearley, surgeon, in February 2013. Mr Brearley did not receive a history of neck pain following the pallet incident. His examination of the neck produced pain with flexion to the left, but movements were otherwise full in all directions. Mr Brearley said that as a result of the pallet incident, Mr Jackson sustained a tear of the left rotator cuff. He thought that the 2011 motorbike accident caused a soft-tissue injury to Mr Jackson’s neck.
70At the request of his solicitors, Mr Jackson was examined by Mr Paul D’Urso, neurosurgeon, in December 2020. He was provided with a large number of documents, including ambulance and Dandenong Hospital notes, operation reports, reports of Dr Weekes, Mr Pang and Professor Bittar. Mr D’Urso had first consulted with Mr Jackson in November 2018, prior to the cervical fusion. He noted the neck symptoms had significantly improved following surgery.
71Mr D’Urso, in relation to the pallet incident, concluded:
“It would appear that Matthew sustained an injury to his head and left shoulder when empty pallets struck him on the head, as a result of a workplace accident. Matthew would appear to have sustained injuries to his left shoulder, scalp lacerations and injuries to his left hand. He would appear to have aggravated a degenerative condition of the cervical spine which was prominent at C5-6 and C6-7, where there was evidence of foraminal nerve root compression.”[19]
[19]PCB 246
72Mr D’Urso said the pallet incident aggravated the underlying degenerative condition in his cervical spine, worsened nerve root compression and brought about cervicogenic headaches.
73Mr D’Urso came to the view the pallet incident was the cause of his cervical spine problems as he received a history, presumably from Mr Jackson, of the onset of cervical symptoms immediately following that incident.
74Mr Jackson was examined at the request of his solicitors by Associate Professor Bruce Love, orthopaedic surgeon, in December 2020. In the history obtained, Mr Jackson said that following the pallet incident, he suffered severe restriction of motion of the left arm and neck. He said:
“Neck symptoms which developed soon after the accident remained with him and it was not until August 2019 that he underwent a two-level cervical fusion at the C5/6 and C6/7 level [per]formed anteriorly by Professor Bittar.”[20]
[20]PCB 250
75In the history provided, Mr Jackson said that the surgery had been successful, and had led to a significant reduction in his neck symptoms.
76Like other practitioners, Professor Love received a range of reports, clinical notes and other material.[21] He concluded that in the pallet incident, Mr Jackson had suffered a rotator cuff injury to his left shoulder and an aggravation of his cervical spine degenerative condition.
[21]PCB 251-252
77In a further report of May 2021, Professor Love concluded Mr Jackson could not return to his pre-injury duties as a truck driver, or as a maintenance fitter. He considered he had the capacity for suitable employment within certain restrictions.
78Mr Jackson was examined, again at the request of his solicitors, by Mr Gary Speck, orthopaedic surgeon, in January 2021. In relation to the pallet incident, Mr Speck received a history that one of the pallets struck Mr Jackson on the left shoulder, and another struck his head. Mr Speck did not receive a precise history as to whether the neck pain commenced at the time of the pallet incident.
79Mr Speck noted the surgery performed by Professor Bittar. At the time of his examination, Mr Jackson complained predominantly of neck symptoms, extending over the left shoulder. Mr Jackson said he had intermittent severe symptoms in the left arm over a wide area, including the left lateral forearm. There was weakness in the left arm and a tingling sensation in the left palm. The neck symptoms were made worse with driving and affected his sleep.
80Mr Speck also received a history of the throwing incident, as a result of which Mr Jackson said he had a severe left shoulder pain and that his neck “felt locked up”.[22] According to Mr Speck, the various further accidents and incidents did not cause any further aggravation of his neck problems.
[22] PCB 264
81In his synopsis, Mr Speck said the pallet incident involved Mr Jackson’s left neck and shoulder being struck by pallets. He considered Mr Jackson had suffered a soft-tissue injury to his neck, being an aggravation of spondylosis in the cervical spine, with radicular pain. He further considered Mr Jackson had symptoms of a Chronic Pain Syndrome.
82While I found Mr Speck’s report comprehensive and detailed, he did not explain in detail how he came to the view of the onset of neck symptoms following the pallet incident, aside from the history as given by Mr Jackson.
83Mr Jackson was examined by Mr John Laidlaw, neurosurgeon, in February 2021 at the request of the Transport Accident Commission. He was also provided with clinical notes and reports which recorded Mr Jackson’s extensive medical history.[23] In the pallet incident, Mr Jackson described being hit on the left side of his head with one pallet, and the left neck and shoulder with another. He described pain in his shoulder and that his head felt “dodgy”.[24] The report records:
“Soon after that [the pallet incident] however he remembers he did have some neck pain radiating down to the back of [the] left shoulder, left upper limb, front and back of arm, back of forearm, and burning and pins and needles into [the] ulnar part of the hand, ring and little finger, thumb were the most, often also index, middle finger was not affected. These symptoms also got worse after the next accident four weeks later … [the throwing incident].”[25]
[23]PCB 284-285
[24]PCB 286
[25]PCB 286-287
84Mr Jackson complained to Mr Laidlaw that his neck, with pain radiating down his left arm, was his biggest problem. He said his range of neck movement was limited. He was also getting headaches once a week.
85Mr Laidlaw described Mr Jackson as having had a “surprising number of work and motor-vehicle accidents and other injuries over a long period of time”.[26] Mr Laidlaw said that following the pallet incident, Mr Jackson developed neck, left shoulder and left arm pain, with headaches and sensory symptoms in the left hand. He noted these symptoms became worse following the throwing incident.
[26]PCB 293
86When asked as to the conditions suffered by Mr Jackson in the pallet incident, Mr Laidlaw said:
“… The evidence indicates that the ‘subject accident’ caused a minor concussive head injury, local soft-tissue trauma to the neck and shoulder (with no fractures or dislocations) and left upper limb pain with sensory symptoms predominantly affecting the little and ring finger but also the thumb and index finger (but not the middle finger). He did return to work after about a week but then sustained a second injury about four weeks after the first when throwing with his left arm. He thinks all the symptoms from the subject accident were much worse after this second workplace accident, and he sees the two as related. It therefore seems that a significant part of his current symptomatology relates to the accident following the subject accident, but I do not think at this stage we can clearly determine the attribution [of] his symptoms to these two accidents. The symptoms persisted and progressed to a chronic pain condition … .”[27]
[27]PCB 303
87Mr Laidlaw went on to consider the impact of the neck and left arm symptoms on Mr Jackson’s work capacity and recreational, social and domestic activities.
88Mr Laidlaw provided a supplementary report of 19 June 2021 to the Transport Accident Commission.[28] He was provided with the various reports of Professor Bittar, Dr Vanderzeil, Professor Love and Mr D’Urso. Mr Laidlaw made a careful assessment of the mechanism of injury suffered in the pallet incident. He noticed some examiners had received different descriptions as to how the incident occurred.[29]
[28] PCB 307-313
[29]PCB 309
89Mr Laidlaw noted in reports of Dr Robert Lefkovits of 9 December 2010 and Mr Barclay Reid of 25 July 2011 (which were not tendered in this application), that neither obtained a history of any neck symptoms following the pallet incident. However, he did note the clinical notes of the Bundoora Family Clinic of 13 August 2010 referred to dull ache and stiffness of the left neck and shoulder since the pallet incident. Referring to Professor Bittar’s report of October 2016, Mr Laidlaw noted the history obtained was of “no significant neck pain after the ‘pallet injury’”.[30]
[30]PCB 311
90Mr Laidlaw concluded:
“It seems to me that there is very little difference in the medical opinions expressed. I think the opinions that Mr Jackson has chronic degenerative cervical spondylosis which was aggravated by the injuries in 2010, causing it to become symptomatic causing left brachial neuralgia (predominantly C7 nerve root irritation), are shared by Professor Bittar, Mr Paul D’Urso and myself, as well as many of the other doctors in other specialties who have provided reports.
The only significant area of disagreement results from different specialists recording different information regarding the mechanisms and symptoms associated with the ‘Pallet Injury’ in June and the ‘Throwing Injury’ in August 2010. It is not uncommon for the recorded medical histories to differ somewhat between different doctors, and that is most commonly due to different interpretation of statements, difference in specific questions that are asked, and difference in emphasis applied to events and symptoms by patients depending on the context of the questioning and their current symptoms.
Were each of the three neurosurgeons presented with the same written historical description of the mechanisms of the injuries and the symptoms occurring at the time and soon after those injuries, I think there would be no disagreement on causation or attribution between us.
…
I believe that my recorded account of Mr Jackson having some neck and left upper limb symptoms after the ‘pallet injury’ and that these were further very aggravated by the ‘throwing injury’ is accurate. However, I am strongly biased in this view simply because that was my genuine understanding in my discussion with Mr Jackson. I suspect that Professor Bittar would have a similarly justified and equally genuine opinion that the symptoms related to cervical pathology became significantly apparent only after the ‘throwing injury’.
…
Based on the history provided to me by Mr Jackson I am of the opinion that both accidents contributed to the aggravation of his pre-existing degenerative cervical spondylosis, causing it to become symptomatic with C7 radiculopathy, and that both contributed to his neck, shoulder and left upper limb symptoms. My opinion in this regard is unchanged from the answers [to] the Question 1 in my previous IME report. However, if pressed on which injury had the greater effect on these symptoms, I am of the opinion that the second ‘throwing injury’ had a greater role in those symptoms than did the earlier ‘pallet injury’. The reason for this opinion is that Mr Jackson was able to return to work soon after the early ‘pallet injury’ in June, but reported to me that the symptoms were much worse after the second ‘throwing injury’ in August 2010.”[31]
[31]PCB 311-313
91Mr Jackson was examined on behalf of his solicitors by Dr Robert Hjorth, neurologist, in April 2013. He obtained a history of the various accidents and injuries, including the pallet incident. There is no reference in the history obtained in respect of the pallet incident to any neck pain. Dr Hjorth obtained a history of an injury to Mr Jackson’s neck in the 2011 motorbike accident.
92Dr Hjorth observed:
“This man has had a bewildering series of accidents. It would be hard for him to keep them separate in his own mind and of course it’s hard for professional people to sort them out.
Matthew thinks that the major accident is the motorbike accident he suffered on 24 January 2010 with the fractured 4th and 5th metacarpal bones. I think he is probably correct in this. In terms of neurology, the main thing he has suffered is the development of an ulna[r] nerve palsy in the left arm. … .
…
He has a number of orthopaedic injuries including the injury to the neck and the injury to the shoulders … .”[32]
[32]DCB 136-137
93In the histories provided to consultant psychiatrists, Dr Nigel Strauss and Professor Peter Doherty, Mr Jackson did not provide a history of neck injury or pain in the pallet incident. He did, however, provide a history to Professor Doherty that, while at the Dandenong Hospital, he was issued with a neck brace.
Analysis – the neck injury
94Given the complexity of accidents and injuries suffered by Mr Jackson, it is no easy task to determine the causative relationship between his undoubted significant neck condition, which has led to cervical fusion surgery, and the pallet incident.
95Mr Jackson, according to his affidavits and evidence, says he suffered pain to his neck after the pallet incident, but thought it arose from the left shoulder injury. It was not until some years later, in the course of treatment by Professor Bittar, that he was advised that he had in fact suffered a neck injury in 2010, although Professor Bittar’s view was that it was attributable to the throwing incident.
96The starting point is the complaints made by Mr Jackson immediately following the pallet incident. He did complain to the ambulance officers who attended of generalised neck pain, which was said to be “aching”. To the Dandenong Hospital Emergency Department, he complained of left shoulder pain, and while a cervical x-ray was taken (it showed no abnormality), the diagnosis was sprain/stroke strain of the shoulder.
97Mr Jackson returned to work within a number of days on his pre-injury duties, albeit with some assistance.
98According to the clinical notes of the North Eltham Medical Centre, Mr Jackson did not complain to Dr Carolyn Royse of neck or other pain related to the pallet incident when he saw her in September and October 2010. He did not seek her treatment around the time of the pallet incident. However, this can be explained, as Mr Jackson was seeing another general practitioner for his WorkCover/Transport Accident Commission accident issues.
99Mr Jackson attended the Diamond Creek Medical Centre and saw Dr Dean Miller, but not until 13 August 2010. On that day, he provided a history of the pallet incident, which noted that he had been on light duties for a few weeks, but then returned to full duties. The notes record:
“Intermittent symptoms of dull ache and stiffness in [the] left neck and shoulder since the accident.”[33]
[33]PCB 364
100The notes further record reference to the throwing incident and an acute twinge in the left shoulder area as a result. In the months that follow, Dr Miller’s emphasis is on left shoulder injury and its treatment.
101However, many of the treating practitioners did not obtain a history that Mr Jackson complained of neck pain after the pallet incident. In a letter to Dr Vanderzeil, Dr Weekes said Mr Jackson did not complain of any significant neck pain following the incident. Somewhat curiously, in a report to the plaintiff’s solicitors of 13 October 2017, Dr Weekes appears to refer to the pallet incident as occurring in 2002.[34] In contrast to what he had said in an earlier letter to Dr Vanderzeil of 28 June 2017, he said that Mr Jackson did not complain of any significant arm pain following the pallet incident. In relation to the throwing incident, Dr Weekes said Mr Jackson developed quite severe neck pain following it. He then said:
“It seems to be apparent that this third injury in June 2010 was the predominant cause of his ongoing symptoms of neck pain with radiation into his left arm.”[35]
[34]PCB 132
[35]PCB 133
102In the context of the report, it is clear his reference to an incident in June 2010 is a mistake, and he is referring to the throwing incident. Perhaps Dr Weekes’ confusion as to which incident caused which injury is unsurprising in the context of the complexity of Mr Jackson’s presentation.
103Mr Brearley, who saw Mr Jackson for the first time in 2013, significantly closer to the events than many of the later consultants, did not receive a history of complaints of neck pain following the pallet incident. He attributed the 2011 motorbike accident as causing soft-tissue injury to Mr Jackson’s neck.
104The consultant psychiatrist, Dr Strauss, in 2013, did not receive a history of any neck pain following the pallet incident. Also, the report of Dr Hjorth of 2013 does not record any history of neck pain after that incident.
105Mr D’Urso saw Mr Jackson in November 2018, but no report arising from that consultation was tendered. Despite appearing to receive extensive documentation from treating doctors and clinical notes, Mr D’Urso’s attribution of the pallet incident as causing a neck injury appears to be reliant upon the history provided by Mr Jackson. Likewise, Professor Love is reliant on Mr Jackson’s history, including that he had severe restriction of movement of the neck and symptoms in the neck which developed soon after the pallet incident. There is no analysis in Professor Love’s reports about that history and its lack of confirmation from the clinical notes of the general practitioner and other early treaters.
106Mr Laidlaw’s reports are very comprehensive. He appears to have received all the relevant documents. His opinion is that both the pallet incident and the throwing incident contributed to the aggravation of the underlying cervical degenerative condition, with the throwing incident playing a greater role. Mr Laidlaw’s view is based on three matters. The first is the history Mr Jackson provided. He said that was so “because that was my genuine understanding in my discussion with Mr Jackson”.[36] The second was the reference in clinical and ambulance notes of some neck pain. The third is the mechanism of injury itself; that is, a heavy pallet striking the plaintiff on the head is more likely to have caused a neck injury than the throwing incident.
[36]PCB 312
107Of particular significance, in my view, are the reports of Professor Bittar, the treating neurosurgeon, who Mr Jackson first saw in October 2016 and then on a number of occasions thereafter. He is the practitioner that Mr Jackson credits with identifying his neck injury which had, to that time, been mistaken for referred pain from the left shoulder. He obtained a specific history that as a result of the pallet incident:
“… he did not experience any significant neck pain following that.”[37]
[37]PCB 148
108He did obtain a history that following the throwing incident, Mr Jackson:
“… experienced pain in his neck and left shoulder and over a 30 minute period, this pain began to radiate down his left arm. He did not have any significant time off work however his neck pain and left arm pain persisted.”[38]
[38]PCB 148
109Professor Bittar concluded the throwing incident caused the aggravation of the underlying neck condition and was the reason for ongoing pain, disability and the surgery.
110While the more recent consultant examiners, Mr D’Urso, Professor Love and particularly Mr Laidlaw, were provided with extensive documentation, including clinical notes, ambulance and hospital reports and reports of the early treating practitioners, their opinions are, in large part, based upon the history they obtained from Mr Jackson. Despite there being some reference to neck pain or aching in the ambulance report and the general practitioners’ clinical notes, those reports are very brief, and no more than one might expect from a blow to the side of the head. From that point on there is little in the way of complaint of neck pain in the clinical notes of the treating practitioners. While it would seem the circumstances of the pallet incident were rather more dramatic and involved greater force, a neck injury such as to aggravate an underlying degenerative condition does not necessarily require substantial force.
111In my view, it is more likely Mr Jackson was not suffering significant neck pain following the pallet incident. Even accepting that the neck pain may have been present, but attributed to the left shoulder injury, nonetheless, absent the specific ongoing complaints of neck pain, stiffness and the like, it is less likely Mr Jackson suffered any significant neck injury in the pallet incident.
112In support of this proposition is that the practitioners, both treating and consultant, who examined Mr Jackson in the period from 2013 to 2017, either did not receive complaints of neck pain as a result of the pallet incident, or positively state they were told there were no complaints. In my view, notwithstanding the comprehensive reports of the most recent consultant practitioners, the reports of Professor Bittar are more persuasive. His opinion was not affected by the litigious process in those earlier days.
113While I found Mr Jackson a reasonably satisfactory witness, whose credit was not significantly impeached in cross-examination, I am of the view that he has sought to attribute his neck symptoms, which are of most significance and cause the greatest interference with his day-to-day activities, to the pallet incident. In his defence there are so many incidents and injuries that it must be very difficult to sort out which caused what symptoms. Mr Hjorth’s comment that it would be hard for Mr Jackson to keep them separate in his mind is an insightful assessment.
114I am not satisfied Mr Jackson suffered any significant neck injury in the pallet incident. While he undoubtedly has a serious neck condition which has required major fusion surgery, the incident most likely to have caused the aggravation of the underlying degenerative condition is the throwing incident. I am not satisfied the pallet incident was a significant contributing factor.
Medical evidence – the left shoulder
115It is clear from the ambulance and Dandenong Hospital notes that Mr Jackson complained of pain in his left shoulder immediately after the pallet incident. The hospital notes described a left shoulder soft-tissue injury.
116The clinical notes of the Diamond Creek Medical Centre first record any injury on 13 August 2010.[39] In respect of the pallet incident, there is recorded Mr Jackson suffered intermittent symptoms of dull ache and stiffness in the left neck and shoulder. It then records:
“Today was throwing rope over truck and had acute twinge in left shoulder/supraspinatus area that felt like he’d to[r]n a muscle
Sharp pain localized to supraspinatus that then radiated to neck and over deltoid
Ongoing pain since esp[ecially] with abduction and changing gears.”[40]
(sic)
[39]PCB 363-364
[40]PCB 364
117The notes record Mr Jackson was on light duties for a few weeks after the pallet incident, but then back on full duties. Examination showed tenderness over the left shoulder, with painful abduction.
118Mr Jackson returned to Dr Miller on 26 August 2010.[41] An ultrasound showed a partial tear of the supraspinatus tendon, which was consistent with clinical examination.
[41] PCB 363
119Mr Jackson sought physiotherapy treatment for his left shoulder injury with a number of physiotherapists. The first was Mr Luca Lucchesi, who, according to a Physiotherapy Management Plan dated 31 August 2010, noted Mr Jackson had suffered a partial thickness tear of the supraspinatus tendon, and recorded the date of injury as 17 June 2010.[42]
[42] PCB 91-92
120Mr Domenic Salerno, physiotherapist, first saw Mr Jackson on 6 October 2011. That practitioner received a history that Mr Jackson had hurt his left shoulder in the pallet incident. He noted a range of symptoms in relation to the left shoulder, which he described as consistent with the injuries suffered in the pallet incident.
121According to a report from Dr Carolyn Royse of 16 February 2012,[43] Mr Jackson had suffered an injury to his left shoulder in the pallet incident, as a result of which she first saw him in November 2010.
[43]PCB 101
122As stated, Mr Grant Pang has been Mr Jackson’s treating surgeon in respect of his left and right shoulder injuries over a considerable period. From March 2011, Mr Pang provided letters to the Diamond Creek Medical Centre as to his treatment of Mr Jackson’s left shoulder issues. He first saw Mr Jackson on 6 September 2010. According to his report of 3 May 2012,[44] he obtained a history that Mr Jackson had suffered an injury to his left shoulder as a result of the pallet incident,[45] where an 80-kilogram pallet landed on his left shoulder and neck, which resulted in acute pain, swelling and reduced range of motion.
[44]PCB 108
[45] The reference to “right shoulder” in the first line of the report is an error – it should read “left shoulder”.
123There is no reference in Mr Pang’s reports to the throwing incident.
124Mr Pang diagnosed a partial thickness tear of the supraspinatus tendon and subacromial bursitis. He treated Mr Jackson with cortisone injections, anti-inflammatory medication, and referred him for continuing physiotherapy. Cortisone injection provided relief, although the pain recurred in March 2011. He undertook surgery to the left shoulder on 20 May 2011.
125Mr Pang provided the following opinion:
“Matthew’s condition is consistent with his work related accident in June 2010. Prior to Matthew’s work related accident in June 2010, he did not have any problems with his left shoulder. His symptoms and signs that he presented with initially are consistent with the injury that he sustained.
Since his surgery his progress has been slow and this was further complicated by injury to his right shoulder in September 2011. This required surgical intervention and had some impact to his left shoulder rehabilitation.”[46]
[46]PCB 109
126By April 2012, Mr Pang said Mr Jackson exhibited minimal pain, with a full range of motion, and he expected improvement to continue to the point of a full recovery.
127However, by July 2012, Mr Jackson complained to Mr Pang of ongoing discomfort in the left shoulder, although he was coping reasonably well.
128The next attendance on Mr Pang in respect of left shoulder problems was in October 2018. At that time, Mr Jackson complained of six months of ongoing left shoulder pain. Mr Pang said:
“This was in the setting of a past work related injury where a heavy pallet had fallen onto his head and left shoulder.”[47]
[47]PCB 115
129The pain was constant and worse at night. There was an associated grinding sensation. Mr Pang diagnosed post-traumatic AC joint osteoarthritis. He injected the left AC joint with cortisone, which led to a settling of his pain. Mr Pang said:
“… His arthritis is likely to deteriorate and on occasions may require surgery in the form of an AC joint excision. AC joint OA can cause pain particularly terminal abduction and adduction. It generally causes minimal functional dysfunction and can be successfully managed with surgery with no long term sequelae.
Currently Matthew has full function in both arms with no pain. He has no limitation with his activities of daily living and no restrictions to return him to his pre-injury employment with his shoulders.”[48]
[48]PCB 115
130According to a medical report from Dr Vanderzeil, Mr Jackson’s treating practitioner, of February 2021,[49] Mr Jackson’s capacity for employment was affected. He could not do any work above shoulder level, nor lift more than 20 kilograms. He noted Mr Jackson could not drive for more than thirty minutes because of pain.
[49]PCB 126-127
131In a further report of May 2021,[50] Dr Vanderzeil said Mr Jackson had no capacity to work in his pre-injury duties as a truck driver as a result of the left shoulder injury. He could work as a health and safety officer, provided he had breaks. He said Mr Jackson was not restricted in his social activities, but his domestic activities had to be paced and he was unable to do heavier gardening work.
[50] PCB 128-129
132Dr Weekes’ opinion is confusing. He first saw Mr Jackson in June 2017, at the referral of Dr Vanderzeil. He obtained a history of the pallet incident (although described it as occurring in 2002). Little can be gleaned from his report on the issue of causation. Dr Weekes’ treatment from that time has been predominantly related to Mr Jackson’s neck symptoms.
133According to the report of Professor Bittar of October 2017,[51] following the pallet incident, Mr Jackson experienced left shoulder pain, although returned to work within a week. In the throwing incident, Professor Bittar received a history of increased left shoulder pain, as well as pain in the neck. In the following six years, Professor Bittar recorded constant neck and left arm pain, for which Mr Jackson had extensive treatment.
[51] PCB 151-155
134In his report of 8 February 2013,[52] Mr Brearley noted that in the pallet incident, Mr Jackson suffered injury to his left shoulder, which was dislocated and was reduced in hospital. The pain persisted, and he noted Mr Pang carried out tendon repair surgery in May 2011. Mr Brearley said Mr Jackson continued to have pain in the left shoulder, with limitation of movement through until the time of his examination. At that time, he noted pain in the shoulder on any strenuous use of the arm, and limited movements of the shoulder, particularly above shoulder height. He could not do repetitive or heavy lifting. He did not think there would be improvement in the shoulder symptoms into the future.
[52] PCB 224-233
135In December 2020, Professor Love, having noted ongoing pain and restriction of movement in the left shoulder as a result of the pallet incident, was of the opinion that Mr Jackson was likely to be limited in tasks involving repeated lifting using the left arm, or working at or above shoulder level. He thought the left shoulder symptoms would continue into the foreseeable future.
136In his second report of May 2021,[53] Professor Love considered Mr Jackson did not have the capacity to perform work as a truck driver, or maintenance fitter, as a result of his left injury alone. He did think he had the capacity for suitable employment within restrictions, including work that did not involve repetitive bending, stooping or lifting weights of more than 5 kilograms. He said that restriction was likely to be permanent.
[53] PCB 255-257
137In his report of February 2021,[54] Mr Speck said Mr Jackson’s predominant problems were in the region of the neck. He said it was difficult defining specific symptoms relating to the shoulder. He noted pain in the left shoulder, if he slept on it, and activities, including lifting above shoulder height, increased the pain. Mr Speck’s report is concerned largely with issues relating to Mr Jackson’s neck. Likewise, the reports of Mr D’Urso, Mr Laidlaw and Dr Hjorth.
[54] PCB 258-280
Analysis – the left shoulder injury
138I am satisfied Mr Jackson suffered an injury to his left shoulder in the pallet incident. The nature of the injury was a soft tissue injury, likely a partial thickness tear to the left supraspinatus tendon which led to subacromial bursitis.
139Mr Batten’s argument is that the injury to Mr Jackson’s left shoulder was only modest and transient and the need for the subsequent repair surgery was related to the throwing incident. In support of that submission Mr Batten said Mr Jackson resumed work as a truck driver within some days of the pallet incident, after a few days working with assistance, and aside from treatment at the Dandenong Hospital on the day, did not go to see his general practitioner until 13 August 2010, after the throwing incident. Although the clinical notes refer to the pallet incident and that Mr Jackson suffered a dull ache to the shoulder since that incident, the throwing incident was said to have caused an acute twinge localised to the supraspinatus area.
140The x-ray to the left shoulder at the Dandenong Hospital did not reveal any abnormality and it was not until an ultrasound of 16 August 2010 that the partial thickness tear was revealed. The fact that nothing was shown on x-ray is of little significance given an x-ray would not be expected to pick up the soft-tissue injury.
141I am satisfied a reasonable explanation for not going to his doctor and reporting shoulder pain after the pallet incident and before the throwing incident is that Mr Jackson is a hardworking man, keen to keep providing for his family and not given to complaining to any great degree about the pain and problems in his left shoulder. So much is evident from the fact that he got back to work after the various accidents and injuries until the spinal surgery. It was not until there was a further issue in throwing the binder over his truck that he thought to seek additional medical attention.
142It is significant that the early physiotherapist, Mr Lucchesi, in his management plan of 31 August 2010,[55] attributed the tendon tear to an injury which occurred on 17 June 2010.
[55] PCB 91-92
143Again, the histories and opinions of the treating practitioners who saw Mr Jackson closest to the pallet incident are of importance. Dr Royse, who is not Mr Jackson’s principal treating general practitioner for either the pallet incident or the throwing incident, nonetheless saw Mr Jackson regularly from September 2010 and was of the view the left shoulder condition was caused by the pallet incident.
144Of most significance is the opinion of the treating surgeon, Mr Pang. He first saw Mr Jackson in September 2010, before the involvement of the litigation process. The history he obtained was of pain in the left shoulder from the pallet incident. There would be no reason for him to attribute responsibility to the pallet incident rather than the throwing incident unless that was in fact the history he received and that was his view at the time. His opinion is clear that the left shoulder condition was consistent with the pallet incident, noting Mr Jackson did not have any problems with the left shoulder before then. Further, he said the signs and symptoms were consistent with the mechanism of injury sustained. It was that injury which led to repair surgery in March 2011, he said.
145While the surgery undertaken was technically successful, by October 2018, the symptoms in the left shoulder had worsened and included a grinding sensation. Mr Pang diagnosed osteoarthritis in the acromioclavicular joint, and his view was that that area was likely to deteriorate with the prospect of further surgery.
146Mr Brearley, who saw Mr Jackson in February 2013, was of the opinion he had suffered an injury to the left shoulder in the pallet incident.
147In my view, relying upon the opinion in particular of Mr Pang, I am satisfied Mr Jackson sustained an injury to his left shoulder in the pallet incident. While there may have been some increased pain as a result of the throwing incident, it was an aggravation of the injury a month or two before. The origins of the injury, and the main cause for the ongoing symptoms leading to surgery, was the pallet incident. I am satisfied as to the causative relationship between that incident and Mr Jackson’s current left shoulder pain and restriction.
Conclusions
148Having accepted the left shoulder injury is related to the pallet incident, it is left to consider whether the plaintiff has sufficiently disentangled the consequences of that injury from his other injuries and conditions, in particular the neck injury, the left hand and right shoulder injuries, and whether the consequences of the left shoulder injury, when looked at alone, meet the “very considerable” test. While undoubtedly many of Mr Jackson’s social, recreational, work related and domestic activities are affected by not only his left shoulder condition, but also the neck, left hand and right shoulder conditions, I am satisfied there are many activities which are affected by the left shoulder condition alone.
149I accept that the injury which most affects him at the present time is the neck. He has had major surgery in the nature of a cervical fusion and has not worked since that surgery.
150Mr Jackson has taken a range of medication, although it is prescribed for both shoulders and the neck.
151I accept he has ongoing pain and a grinding sensation in the left shoulder. This is supported by the opinion of Mr Pang that osteoarthritis has now developed in the area and is likely to progress.
152I accept Mr Jackson’s evidence that he is restricted in the movement of the left shoulder at or above shoulder height and needs to go to the gym to exercise to keep the shoulder active. I accept that if he sleeps on that side he is awakened with pain.
153Mr Jackson’s interest in martial arts ceased before the pallet incident. I am not satisfied his motorcycling is restricted by his left shoulder problems. This is more a problem because of his neck and left hand issues. Likewise, his enjoyment of guitar playing. However, I accept heavier domestic activities are reduced, in particular painting and those activities which require the use of the left arm at or above shoulder level. I accept Mr Jackson has some difficulties with taking his clothes on and off.
154I accept the opinion of Dr Vanderzeil that his left shoulder injury restricts any work he may be able to do at or above shoulder level. That practitioner says that he has no capacity to return to work as a truck driver on a regular and reliable basis because of his left shoulder injury. I accept the opinion of Professor Love that his left shoulder injury would restrict Mr Jackson in repetitive tasks involving the left arm and that a range of occupations, including as a truck driver and maintenance fitter, are lost to him. While Mr Jackson does have the capacity to work in lighter duties from the perspective of the left shoulder alone, there would be a range of restrictions, in accordance with the opinion of Professor Love, which he would need to abide.
155In terms of the right shoulder, Mr Pang’s opinion is that Mr Jackson has made a good recovery from the rotator cuff repair surgery, that he had minimal pain, good power in the shoulder and full function. However, in relation to the left shoulder, Mr Pang said osteoarthritis was likely to deteriorate and may require surgery in the form of an acromioclavicular joint excision.
156Mr Jackson is still relatively young at forty-eight years of age. He has only ever worked in manual-like employment, including as a mechanic or truck driver. To his credit, he has expanded his areas of work to include as a driver trainer and has completed an occupational health and safety course. Nonetheless, looking at the left shoulder injury alone, his areas of employment are restricted, and there is likely to be a further reduction in work capacity as the arthritis progresses with age.
157In these circumstances, I am satisfied that setting aside Mr Jackson’s various other injuries and conditions, in particular to the right shoulder, left hand and neck, the consequences of the injury to the left shoulder in the pallet incident meet the “very considerable” test.
158Leave is granted to bring common law proceedings. I shall make consequent orders.
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