Khouri v Transport Accident Commission
[2020] VCC 500
•29 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-05622
| CHANTELLE KHOURI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 16 April 2020 | |
DATE OF JUDGMENT: | 29 April 2020 | |
CASE MAY BE CITED AS: | Khouri v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 500 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – impairment to the right shoulder – disfigurement – causation
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Richards & Anor v Wylie (2000) 1 VR 79; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Garcia v Transport Accident Commission [2015] VCC 140; Hollis v Transport Accident Commission [2011] VCC 502; Kelso v Tatiara [2010] VSCA 12; Rodowsky v Transport Accident Commission [2016] VC 56; Peak Engineering & Anor v Mackenzie [2014] VSCA 67
Judgment: Applications dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab with Mr M Schultze | Slater and Gordon Ltd |
| For the Defendant | Mr S Smith QC with Ms J Clarke | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident (“the accident”) which occurred on 18 February 2011 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is under s93(17)(a) – “a serious long-term impairment or loss of a body function”. The body function pursuant to sub-paragraph (a) is the right shoulder.
4 There was also an application pursuant to sub-paragraph (b) relating to a serious disfigurement of the right shoulder.
5 The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.[1]
[1]See Richards & Anor v Wylie (2000) 1 VR 79
7 The plaintiff swore two affidavits and was cross-examined. She also relied on affidavits sworn by her mother, Jamile Seman, on 23 March 2020 and her friend, Rachael Maree Knez, sworn 6 April 2020.
8 There was also an application for extension of time to bring these proceedings, the plaintiff having not done so within six years of the accident date – 18 February 2017; however, counsel for the defendant advised on the second day of hearing that the defendant consented to that application.[2]
[2]Transcript (“T”) 121
9 The issues in dispute were then whether any right shoulder consequences from which the plaintiff presently suffers are related to the transport accident, there having been an acceptance of the right shoulder claim initially. Further, the question of “seriousness” was in issue.
The Plaintiff’s evidence
10 The plaintiff is currently thirty-two, having been born in February 1988. She has been living at her grandmother’s house since the end of last year.[3]
[3]T6
11 Having completed Year 12, the plaintiff began administrative and receptionist work, hospitality and bar work and tennis coaching. She worked at Maxxia as a novation consultant and also as a learning and development consultant. She also worked at a Toyota dealership and then travelled overseas to Asia. From November 2016, she worked for Stratton Finance. Three weeks before the hearing, she commenced work with Remunerator, another salary packaging and leasing provider.[4]
[4]T6
12 The plaintiff is earning more in her new job with Remunerator than she did with Maxxia and Stratton Finance.[5]
[5]T64
13 Prior to the said date, the plaintiff had very good function in her right shoulder and played competitive tennis. She was able to engage in work, recreational, domestic and social activities without restriction.
14 The plaintiff had had some counselling sessions relating to her relationship with her father and her parents’ divorce. She had a lump removed from her right breast in August 2010.
15 The plaintiff was involved in a transport accident on the said date when she was struck by a car turning right as she was on a pedestrian crossing. The car hit her on the hip, and she fell and landed on her arms and knees, landing hard on her right shoulder (“the accident”). A bystander came over to assist and the plaintiff spoke with the driver of the other vehicle. Ambulance and police were called.
16 The Victoria Police incident report set out the plaintiff sustained moderate injuries and was transported via ambulance to Dandenong Hospital. The other driver was at fault, they went through an amber light and struck the pedestrian while the pedestrian was crossing the appropriate crossing on a green signal.
17 The ambulance report set out:
“The patient is a normally fit and healthy 23-year-old female. Today as she walked across a controlled pedestrian crossing, she was struck by a car to her left hip and knee. The car was travelling at 10 kilometres per hour. Nil head strike or LOC. Patient fell to road striking right shoulder. … Complained of right clavicle pain and deformity.. pain described as aching, dull, sharp, denies radiation aggravated by movement, inspiration.”
18 At Dandenong Hospital Emergency, it was noted there was an obvious deformity in the plaintiff’s right collarbone. Her right shoulder was quite sore at that point and its movement was very restricted. Her right arm was just put in a sling.
19 The plaintiff had an x-ray of her right AC joint, right collarbone and right elbow. She was told there were fractures and dislocations within the shoulder and collarbone. She also remembered she asked whether the lump or deformity would go down, and the person she saw said “probably never”.[6]
[6]T23
20 The plaintiff had about two weeks off work and had physiotherapy in Narre Warren.
21 The plaintiff also began to develop psychological symptoms, particularly because she was unable to play tennis in a very active way, and she was referred to Andrea Larkinds, in 2011 and 2012, at Melbourne Psychology.
22 The plaintiff continued to attend the Outpatient Fracture Clinic at Dandenong and on a visit on 1 March 2011, she was told that the lump on her collarbone from the injury was still present, but that it was generally non tender, and that she had a relatively good range of movement.[7]
[7]First affidavit
23 The plaintiff returned to Dandenong Hospital on 29 March 2011. She was then told she had a good range of shoulder movement. She was also told an x-ray showed the joint was intact and the fracture had healed. She was advised to avoid contact sports. She agreed she had a good range of movement in her shoulder at that point. She might have then reported that her pain had resolved.[8]
[8]T39
24 The plaintiff agreed she went to her general practitioner once in the middle of April 2011, complaining about right shoulder pain.[9] Between then and February 2017, there had been sporadic treatment, where she had seen a myotherapist every now and then. It was “a drop in” which she paid for and did not claim it through the TAC.[10]
[9]T23
[10]T24
25 The plaintiff agreed it was possible she had seen general practitioners at various clinics about sixty-one times between April 2011 and February 2017 for a range of complaints and had not mentioned her right shoulder.[11] She did not remember what she complained to doctors about. She tended to go to different doctors. She does not go to the same doctor more than a couple of times. She does not have that much faith in her shoulder getting much better, so she just tried to push on.[12]
[11]T25
[12]T27
26 In the years after the accident, the plaintiff had sporadic myotherapy and saw osteopath, Dr Santamaria in Port Melbourne. She continued to experience some stiffness and pain in her right shoulder; however, it gradually became worse and worse and she began to experience a soreness over the shoulder blade. The shoulder itself started freezing up more and more often and the pain became quite aching in the cold weather.
27 On 13 June 2017, the plaintiff had an MRI scan of her right shoulder arranged by Dr Santamaria. She was told she had a probable “Hill-Sachs” deformity with an old healed SLAP labral tear, with scarring and inflammation of the tissue and an abnormal and widened AC joint. She was told this was related to her prior injury and that there was inflammation of two of the tendons, and the fracture had healed in a deformed way.
28 The plaintiff was referred to Dr Wang, upper limb Fellow and Associate Professor (“Mr”) Ek, orthopaedic surgeon, whom she saw in mid 2017. She had an x-ray and was told this showed there was a malunited part of the collarbone, a former humeral fracture and a SLAP lesion.
29 Surgery was recommended. The plaintiff was told this was something called a biceps tenodesis and that would take the pressure off the SLAP lesion. She was also told there would be something called an acromioplasty procedure to help with the impingement and restricted shoulder movement.
30 Funding was requested from the defendant. As at 25 June 2018, the plaintiff was concerned about having the operation, as she did not feel secure enough in her job to jeopardise it taking time off.[13]
[13]First affidavit
31 The plaintiff could recall Mr Ek telling her the chances were her shoulder would not go back to normal or how it used to be. She could not remember the specifics that he had set out in his report.[14] She could recall that he had told her that he would have to “go in and do a couple of things, clean up her shoulder”. He could do that, and it might improve, but chances were her shoulder would not go back to the way it was.[15]
[14]T28-29
[15]T29-30
32 Mr Ek then also talked about the general risks involved with having surgery. When the plaintiff swore her affidavit in mid 2018, she was considering it because she had just had that conversation with him. She was going back and forth whether she should do it or not, and decided the risk of having the surgery, possible complications and her shoulder not going back to how it was anyway, was not worth it, so she decided against it.[16]
[16]T30
33 Mr Ek did not go into the details as to the complications of surgery. The plaintiff “grabbed onto what he was talking about was that her shoulder would not go back to how it was”.[17] She was focused on this issue and the complications of surgery.[18]
[17]T30
[18]T31
34 The plaintiff agreed that her shoulder condition had had a significant impact on her life.[19] What Mr Ek said was not good enough for her. She agreed that she needed to be back to 100 per cent perfect before she was going to have surgery. From that time, she decided to try and take it into her own hands. The entire time she had been trying to strengthen and rehabilitate herself. She never wanted to go straight to surgery, and she will not accept less than her shoulder going back to how it was.[20]
[19]T31
[20]T32-33
35 It was true as at June 2018, as the plaintiff deposed that she did not yet feel secure enough in her job to jeopardise it to have the surgery.[21] She was not sure why this affidavit did not say anything about guarantees. She was fairly new to her job[22] and it took her a while to make a decision. She agreed it took her more than twelve months to do so.[23]
[21]T34
[22]T35
[23]T36
36 The plaintiff denied she would not have the surgery because the pain in her arm really was not that bad.[24]
[24]T37
37 When the plaintiff thought of the complications of surgery she thought “the worst - death”.[25]
[25]T126
38 The plaintiff did not have a general practitioner as she moved often from Narre Warren North, Bonbeach, Carrum, Glen Waverley and Brunswick. She generally took Nurofen for pain and applied heat packs and Tiger Balm to her shoulder.
39 As at June 018, the plaintiff then continued to experience pain and restricted right shoulder movement. The pain was worse when she used her arm overhead, or stretched it out, or moved it behind her back. It barely went behind her back and movement was often restricted. There was aching, which was worse in cold weather, and the pain became sharper when she moved her arm. At times, it almost felt frozen and completely immobile, and she got a particularly sharp pain once she pushed beyond a certain height.
40 The plaintiff then continued to be angry, upset and frustrated by the ongoing extent of her right shoulder pain and its impact upon her life, having to deal with limitations for most of her twenties. She also felt anxious and had dreams where she was driving and the brakes did not work and she had to wake herself up. She also had dreams about crossing the road and being hit by a car. She avoided big roads and went out of her way to avoid traffic lights.
41 The plaintiff had been able to work despite ongoing shoulder pain. She could do her administrative tasks with her right shoulder injury, but she used her phone and mouse in her left hand. She experienced an ache in her shoulder when she had to do activities with both hands and with the right hand, but luckily did not have to do any lifting.
42 The plaintiff was twenty-three when the accident happened. She was playing tennis four nights a week, and coaching, usually, a couple of nights. In addition to her administration work, she also worked part time as a tennis coach, as well as being a competitive player. While her coaching income was variable, depending on what she was teaching, it was comparatively well paid, particularly when working on the weekends and evenings. She did very limited coaching of young students at Caulfield Grammar, which was more babysitting than teaching. She had to cease that three years earlier, when her right shoulder pain began to get worse.
43 The plaintiff’s injuries had affected her enjoyment of life and capacity to enjoy daily activities. Her passion was tennis and she played many national tournaments and was increasingly coaching as she got older. Her dream was to start her own tennis school, having started playing when she was about five and competing when she was nine. She began Saturday competition, then tournaments when she was sixteen, got back into it when she was eighteen, and coaching when she was seventeen and eighteen. She had a very good social life through the sport.
44 The plaintiff was able to play a very limited game with her left hand but needed both arms in a proper game. She took a year off after the accident completely. She watched the Australian Open and it upset her that she could not participate in the way she had done pre-accident.
45 At the age of twenty-three, the plaintiff was playing for Kooyong Park and East Coburg. She was a regular pennant player in Grade 1 and 2 Pennant. She had been playing at that level for about five years.
46 The national tournaments in which the plaintiff played were ANTs ranking tournaments. She thought the highest ranking she achieved at an open level in Australia was 300 when she was about seventeen. She thought she was the fittest and smartest she had been at that stage. Later on, she was not playing as many tournaments and was generally sticking to pennant and competitions on Saturday afternoon and mid-week. She guessed she started working full time so she “was only able to (indistinct) regular competitions”.[26]
[26]T56
47 The plaintiff agreed she dropped out of the ranking tournaments and just played pennant because she had a full-time job. The ranking tournaments she normally entered were during the week and because she was working, she was not be able to play in them unless they were over a long weekend.[27]
[27]T62
48 As of mid-2018, the plaintiff’s sleep was impacted by her injuries and she often woke when she rolled onto her right arm and shoulder, disrupting her sleep.
49 Hanging laundry on the line aggravated shoulder pain, as did vacuuming. Cooking could be difficult with heavy pots and the plaintiff used her left arm to cook, and to clean the shower. In short, she did chores around the house, but avoided using her right arm whenever possible, particularly with overhead movements or movements away from her body. Daily activities, such as getting dressed or putting on her bra, aggravated her right shoulder pain.[28]
[28]T115
50 The plaintiff’s mobility had been restricted by her injury. If driving, she had to hold onto the top of the steering wheel with her left arm and the bottom of the wheel with her right.
51 The plaintiff’s relationship with her former partner suffered. If she had listened to her, the plaintiff would not have been out crossing the road and been injured. The plaintiff became very paranoid when they crossed traffic together. That started to upset her, and their relationship ended in around 2014.
52 As of June 2018, the plaintiff had a new partner. The plaintiff could be moody and irritable at times as a result of her pain and that put stress on the relationship, but generally things were good.
53 The plaintiff swore a second affidavit on 22 January 2020.
54 Since swearing her earlier affidavit in June 2018, the plaintiff had been asked to provide further evidence, specifically in respect of, among other things, the deformity to her right shoulder and collarbone caused by the accident. She exhibited a number of photographs recently taken which depict the deformity to her right upper shoulder area and collarbone.
55 While giving evidence, the plaintiff unbuttoned her shirt, wearing a singlet underneath, showing her shoulder/collarbone area to the Court.
56 The plaintiff thinks the deformity is gross, ugly and embarrassing. Not only does it involve two parts of the right collarbone protruding outward, it also involves three distinct impressions in her upper shoulder area beside the right of her neck immediately above the collarbone. The appearance of those depressions is then exaggerated by the protrusions of the collarbone itself immediately adjacent to and below the depressions, and the whole thing looks horrible.
57 The deformity on the plaintiff’s right side appears quite stark and it becomes accentuated when looking straight at her front as the deformed right collarbone and shoulder area can easily be compared to her normal left side.
58 The deformity is particularly embarrassing and upsetting given the plaintiff’s relatively young age. Since the accident, when aged twenty-two, she has felt compelled to try and hide the deformity to her right collarbone and shoulder area; however, such efforts interfere greatly with her enjoyment of life, especially when she likes to dress formally, with off-the-shoulder outfits and when it is hot, and she would like to wear a summer top, or when she goes swimming at the beach, the pool or to a friend’s place.
59 The plaintiff hates the appearance of her right collarbone and the protrusions and depressions in the skin and the surrounding area. She hates other people seeing the deformity, which is ugly and embarrassing. The deformity to her right shoulder and collarbone has been her biggest insecurity.
60 A deformity in the right collarbone is quite evident to her, as the right side sticks out and that is quite a difference to her. She has noticed that since the accident.[29] Pretty quickly after the accident, she remembered feeling her collarbone and realising it was sticking out. She could remember getting an x‑ray at the hospital and being told she had fractured her collarbone then.[30]
[29]T10
[30]T11
61 The plaintiff got a tattoo on her left shoulder in 2013, after the accident. She likes tattoos in general but wanted a reason to take the attention away from her collarbone.[31] The tattoo on her shoulder was a really strong image about women’s empowerment.[32]
[31]T11
[32]T15
62 The plaintiff agreed she did not mention any issues about the appearance of her right shoulder in her first affidavit. She does not like talking about her right collarbone.[33] She did not raise it earlier, as it was one of the most humiliating days of her life when she met with the TAC and they asked her to show her collarbone. She had avoided showing it for years.[34]
[33]T16
[34]T17
63 The plaintiff agreed that in her first affidavit, she described a range of matters that were upsetting to her. It was suggested she did not mention anything about the appearance of her right shoulder because it was not a problem but she explained she is most self-conscious about it. She does not like to bring it up. She does not like people to see it.[35]
[35]T17
64 The plaintiff mentioned the appearance of her shoulder so extensively in her second affidavit because she realised it was an issue. It affected her life, and that was part of her claim. She agreed that when she made the claim initially she did not mention it.[36]
[36]T18
65 The plaintiff had not discussed this issue with any psychologist to whom she had spoken about family issues, because “when something is so embarrassing you tend to avoid talking about it. It is a physical appearance that won’t go away.” She did not want to bring it up. She is self-conscious about it and hates her collarbone and hates talking about it. She has “never wanted to get into it”. It has affected the way she dresses, it has affected the way she communicates with people and it has affected her relationship with people, and “[her] comfort in herself”.[37]
[37]T19
66 It has taken time for the plaintiff to get comfortable to talk about it. She agreed her January 2020 affidavit was the first time she ever mentioned it.[38]
[38]T20
67 The plaintiff could not remember Mr Owen raising with her the slight asymmetry in her shoulder area on examination in December last year.[39] She agreed with him when he brought it to her attention.[40]
[39]T21
[40]T22
68 No-one on the plaintiff’s legal team had asked to see her shoulder before the TAC conference.[41] She is not even happy to talk about it now. She hates talking about her shoulder and collarbone. She gets really self-conscious about it, she does not like bringing it up and she tries to hide it as much as possible.[42]
[41]T126
[42]T127
69 Since 2018, the plaintiff has also continued to suffer pain, difficulties and incapacities that she earlier deposed to. All those issues continue to cause her a great deal of concern about the future, both in relation to work and enjoyment of life outside work.[43]
[43]T82
70 For instance, in early October 2019, the plaintiff had to drop to part time at work as she was suffering more pain as time went by, and she was tired and exhausted, especially having to constantly try to compensate for the pain in the course of every day at work. On top of that, and maybe because of those factors, her psychological condition deteriorated and she began to suffer a great deal more depression and felt like it was difficult to cope.
71 The plaintiff now does not take medication for her shoulder as much as she can help. She did not realise the strength of the medication was she was prescribed when first injured and she did not take it. She remembered taking Panadeine Forte after the accident. When asked whether it moderated her pain, she said it was “a cover up, it was a band-aid”. It helped moderate her pain, as long as it worked. She did not remember experiencing any adverse side effects from the medication.[44]
[44]T38
72 In Court, the plaintiff demonstrated movement of her right arm in all directions beyond 90 degrees. Extension went through to about 100 to 110 degrees, at which point she indicated her pain got worse, and then she continued to about 130 or 140 degrees. She can move her arm the “whole way” if she needs to. It is restricted though, where her shoulder starts to stiffen up, or at a certain point. She agreed that she certainly would not move her arm any more than that unless she absolutely had to. The pain becomes sharper, depending on the direction in which she moves her arm.[45]
[45]T80
73 If the plaintiff was trying to shoot her arm straight up, it freezes up. Right in front of her, or to the side or behind, then it feels like it is freezing up. She agreed she got a particularly sharp pain if she pushed beyond a certain height.[46]
[46]T81
74 The plaintiff has been seeing a psychologist, Ms O’Connor, for the past few months. She was about to begin treatment with a new psychologist at Inner North Counselling.
75 In early January 2020, despite ongoing physical and psychological problems, the plaintiff was compelled to return to full-time work because it was too difficult to survive on a part-time wage.
76 About eighteen months ago, the plaintiff tried, on a few occasions, to play a game of tennis; however, inevitably, the pain she suffered when doing so increased to the point where it all became untenable. In early January this year, she tried to play in a tournament, but did not succeed, as the pain she suffered, in the end, was intolerable.[47]
[47]Second affidavit
77 The plaintiff plays tennis every now and then, including entering a few tournaments.[48]
[48]T50
78 The plaintiff agreed she played A grade doubles and singles in tournaments at Shepparton in 2015. She laughed when answering questions about this tournament. She thought it was funny, because she still tried to play at a level that she was not at any more.[49] Doubles is quite different to singles tennis, and that is why she has been playing more doubles than singles since the accident.[50]
[49]T61
[50]T60
79 Since 2015, the plaintiff had filled in for different competition teams in weekend competition. She most recently played in 2019. “From memory,” it was competition Grade 3. She was filling in for a friend’s team at Hawthorn in a bayside summer competition. “From memory,” it was towards the end of last year.[51]
[51]T52
80 The plaintiff agreed she had played Pennant as recently as last year, along with other competitions. She was only filling in for the last few years and would say she played two or three weeks last year, for Hawthorn Tennis Club, in pennant. She did not know if the competition was on at the moment, but they asked her to play, and she said she would play as an emergency player but would not commit to a full season.[52]
[52]T76
81 The plaintiff’s level of tennis is not the same now. She pulls up sore afterwards. She feels sore and disheartened a lot of the time and she has a love/hate relationship with the game. It just does not feel good because she is not playing at the same level and she is in pain.[53] She does not practise anymore.[54]
[53]T123
[54]T124
82 Since the accident, the plaintiff had also tried to coach tennis, especially at a junior level; however, physical limitations when doing so reduced the activity to somewhat of a babysitting exercise instead of a tennis class.
83 The plaintiff had to face the fact, effectively as a result of her accident injury, she had lost the capacity to play and coach tennis. Pre-accident tennis was virtually all that she wanted to do; however, since then, each time she tried to play, the poor way in which she did so and the increasing pain she suffered brought that loss into stark focus.
84 The plaintiff no longer coaches. She thought she last coached at Caufield Grammar at the end of 2018. She agreed it was some time in the 2018-2019 financial year as her taxation records indicated. It was something she had done before the accident, and she coached for a season after the accident.[55]
[55]T52
85 The plaintiff’s right shoulder problem inhibited her career because, had she not been injured, she would have been a tennis coach having her own tennis school.[56] Before the accident, she was “doing some coaching with one of her coaches.”[57]
[56]T64
[57]T65
86 Whilst the plaintiff seemed to depose that she coached at Caulfield Grammar before the accident, she could not remember if this was the case. She knew she did a few seasons after it. Before the accident, she did some coaching at some clubs, “so it was very much about technical teaching and feeding balls”.[58] She thought she did coach at Caulfield before the accident, but she definitely coached there after the accident.[59]
[58]T70
[59]T71
87 The plaintiff agreed the impression she wanted to convey by her affidavit, was she had a building and increasing involvement in tennis coaching in the period before the accident.[60]
[60]T71
88 When told the summary of her taxation returns did not indicate any pre-accident income from coaching, save for 2009, the plaintiff was still doing work with a coach of hers at times. She agreed it was not in her taxation records. The coach told her it was taxed.[61] When asked whether she coached before the 2009 financial year, the plaintiff did not remember the exact years “to be honest”.[62]
[61]T73
[62]T74
89 The plaintiff agreed that her affidavit gave the impression she last coached at Caulfield in the middle of 2015 but she had in fact coached in the 2019 financial year. She had not mentioned this in her more recent affidavit, because it looked like she “overlooked it”.[63]
[63]T77
90 The plaintiff felt pretty bad because she could not start a business as a tennis coach. Her passion was tennis. It was what she loved to do and what she loved to be part of. After the accident, realising her tennis ability was not the same, and not being in a position where she can coach and have a business, it affected her sense of purpose a lot. It was “disheartening, it is like there is a void”.[64]
[64]T127
91 Before the accident, the plaintiff was planning to be a full-time tennis coach with her own tennis business. She had done a Level 1 accreditation in about 2009.[65] Her plan was to transition between her administrative position to have some stability and to transition over to becoming a full-time coach.[66]
[65]T121
[66]T123
92 In order to try and keep a footing in the social side of things, in about July 2019, the plaintiff left her committee position with VicTennis and began her own social group for LGBTI players -“Tiebreakers”. She is still involved with this aspect of the game, but it is certainly a very poor substitute for the enormous role tennis used to play in her life before the accident.
93 At VicTennis, the plaintiff looked after a lot of their social media posts and tried to organise events for women specifically to play tennis. Now, at “Tiebreakers”, she organises events, and social tennis twice a month on a Sunday, followed by lunch or a barbecue. There is a little bit of playing tennis, but the “majority is organising in the back and work”.[67]
[67]T54
94 On the VicTennis Committee website as at August 2019, the plaintiff was ranked an A-. This was her rating compared to the Vic Tennis group. As the entry set out, the plaintiff loved how warm and inclusive the group was. It also allowed for a great variety of tennis, both social and competitive.
95 The plaintiff described this entry as a “sales pitch”. She went to VicTennis with a goal. She did not love it.[68] A big reason she left was that it was not that inclusive. She agreed she was selling herself on that site as very much still actively engaged in tennis, she was “trying to get people on board”.[69]
[68]T58
[69]T59
96 The plaintiff also agreed she listed her interests on that site in August 2019 as Muay Thai, travel, hiking, the beach and kayaking. She was not doing kayaking currently but would like to. The last time she had gone kayaking was years ago but did not remember when.[70] She was not sure why she even needed to include kayaking at all on her list of interests.[71]
[70]T60
[71]T61
97 The only mention of overseas travel in the plaintiff’s affidavits was in her first affidavit where, under “Background”, she mentioned she travelled in Thailand, Cambodia and Laos after ceasing work with Maxxia.
98 The plaintiff agreed with the dates set out in the Home Affairs printout as to her overseas travel after the accident:[72]
[72]T41 et seq
·08/09/11 - 22/09/11 – Nepal
·10/05/13 - 22/05/13 – Bali (with partner and mother)
·7/7/14 - 15/11/14 – South-East Asia (Thailand, Cambodia and Laos)
·1/5/16 - 29/6/16 – Thailand
·16/11/17 - 22/11/17 – Bali (thinks with partner)
·13/2/18 - 28/2/18 – Thailand (for birthday)
·22/11/18 - 27/11/18 – Manilla (with partner for partner’s work)
·18/4/19 - 2/5/19 – Philippines islands (with partner).
99 On the trip to Nepal in September 2011, the plaintiff’s partner carried her pack. They went hiking for probably about ten days. The plaintiff took a suitcase with wheels.[73]
[73]T40
100 On a trip to Thailand between July and November 2014, the plaintiff based herself at Phuket and travelled to Cambodia, Laos and parts of Thailand.
101 The plaintiff agreed her court case was adjourned earlier this year because she had just returned from the Philippines.[74]
[74]T40, T47
102 When it was suggested to the plaintiff her ability to travel was not inhibited in any way by her injury, she said it “depends on the type of trip”.[75]
[75]T48
103 The plaintiff agreed she went snowboarding at Mount Buller in July last year, as she was shown on Facebook. At the time, there was nothing about her right shoulder that inhibited her from the idea she should do it, but afterwards there was. She was definitely in pain afterwards.[76]
[76]T48
104 When she was asked why she would go to a cold place and do that activity, the plaintiff said she did not see the point in living a life where she could not actually experience things. She has not let it stop her, but it has stopped her from reaching the levels of sporting abilities or levels she wanted to be at or could be at.[77]
[77]T49
105 The plaintiff has gone on hikes during the day since the accident but has not set up a tent for the night and camped overnight.[78]
[78]T50
106 When in Thailand in 2014, the plaintiff did a bit of Muay Thai boxing training. It is a form of martial arts which she agreed involved the use of the arms and legs in defending and striking blows. It is also called Thai kickboxing. It involves sparring but she tries to avoid it. She has done sparring in a limited capacity.[79]
[79]T44
107 To box, the plaintiff wears 16-ounce gloves. She uses a punching bag, which she strikes with both hands. She goes to a martial arts gym, which is also a strengthening and conditioning gym. She has never competed, and only trained in this martial art.[80]
[80]T44
108 The plaintiff takes the force into her right arm when her hand comes in contact with the bag “in a restricted capacity”. She then agreed she was taking the force into her right arm when she struck the bag.[81]
[81]T45
109 Muay Thai classes generally go for an hour. There is usually a warmup involved, which is “either sort of running or skipping,” and then there would be some shadow work, where you are basically mimicking kicking and punching. Then, generally some partner work, which is holding the pads for one another and working with another person.[82] The plaintiff also did some further Muay Thai training on her trip to Asia in 2016.[83]
[82]T45
[83]T46
110 The plaintiff decided to take up a martial art and she took up this one because it is predominantly lower body, even though there is punching involved. It is kicking and kneeing, and the focus is to keep your opponent at a distance, which involves a lot of leg work. With her boxing stance, she is left-hand dominant, her right hand is mainly for jabbing and “as a distraction”. She does the sport because it is empowering. Most activities she does cause her problems with her right arm. She is a resilient person and it is important for her to be active.[84]
[84]T125
Left shoulder
111 The plaintiff thought she had seen a specialist for her left shoulder many years ago. She then agreed she saw Dr Parnell in 2016. The plaintiff told her that she had had about a year of left dominant shoulder pain, that she previously played tennis at a high level and returned to the game following a brief hiatus last year. The plaintiff then said she would not call that hiatus brief.[85]
[85]T86
112 The plaintiff agreed that she told Dr Parnell that she began to feel pain in the back of her left shoulder while serving and there was one particular serve that made it more severe. While Dr Parnell noted the plaintiff had gone back to playing tennis in 2015 and gave it away at least for a period because of left shoulder pain, this was not necessarily the reason. The plaintiff had been playing tennis on and off since the accident and had not played regularly.[86] She would have taken a break because of left shoulder pain in 2015-2016.[87]
[86]T86
[87]T86
113 The plaintiff did not complain to Dr Parnell about her right shoulder because she felt it was a “lost cause” at that point because it had been really disheartening for her. She went to see Dr Parnell specifically for the left shoulder.[88] She agreed she had not had physiotherapy and osteotherapy, but she had been doing her own work and seeing a myotherapist every now and then. She had made attempts to do her own rehabilitation and strengthening.[89]
[88]T86
[89]T90
114 The plaintiff had taken no medication because she refused to live her life on prescription painkillers.[90] She was last prescribed Panadeine Forte on 11 April 2011.[91]
[90]T87
[91]T89
115 The plaintiff agreed she complained to Dr Parnell about problems sleeping on her left side. When Dr Parnell noted the plaintiff was unable to do push-ups due to the pain, the plaintiff explained she had been doing everything she could to do her own strengthening.[92]
[92]T91
116 The plaintiff agreed she had an injection to her left shoulder in 2016. She disagreed her left shoulder problem was worse than her right. Her left was her dominant side, so she was more likely to get an injection in it.[93]
[93]T92
117 The plaintiff’s left shoulder causes her difficulty now and occasionally causes her difficulty playing tennis. The cortisone injection helped for a couple of months, but she still has pain from time to time.[94] The left shoulder is not as bad as the right.[95]
[94]T114
[95]T115
Surveillance film
118 On 10 December 2019 at 12.11pm, the plaintiff was shown warming up for Thai boxing.[96] When it was suggested there were other forms of exercise that would not involve movement of her arms, she said she had done many types of exercise and they also tended to hurt her arms. She agreed that there can be any number of ways to exercise and keep fit that do not involve using her arms above shoulder height.[97]
[96]T83
[97]T84
119 The plaintiff was then shown the film taken on 12 January 2020.
120 When asked whether there was any indication of her being in pain in the footage, the plaintiff said you would not see it, but she knew. There was an example when she cringed and scrunched up her face when she put her hands up to put her hair in a bun.[98]
[98]T96
121 When it was suggested there was nothing shown of her right arm impeding her ability to play a shot, the plaintiff explained it did restrict her ability and she played at a low-level pace.[99]
[99]T98
122 When the plaintiff serves, she tends to release the ball at a lower point. There is still pain involved.[100] She tries to outsmart players instead of powering them as she did pre accident.[101]
[100]T107
[101]T114
123 When shown gesticulating with her right arm, the plaintiff said it did cause her pain. She agreed she was smiling but that was because she was hosting an event.[102]
[102]T98
124 The plaintiff agreed she raised her right arm pretty well through to 180 degrees, but she was not saying she was not in pain when she did it.[103]
[103]T99
125 The plaintiff denied that she was not having pain because of her earlier evidence that she would not move her arm unless she absolutely had to.[104]
[104]T100
126 The plaintiff denied she was being entirely dishonest when she demonstrated her level of restriction in Court. When it was suggested she could move her right arm quite fully, as seen in the film, she agreed she could move it, but it does not mean that she does not suffer from it afterwards.[105]
[105]T101
127 When she was examined by Mr Doig and Mr Owen, they asked her when the pain began and she stretched out her arm and she told them when it did. They then moved it around when they wanted to make their assessment. She would have moved her arm to 90 degrees when examined by Mr Doig and then told him when the pain began. She did not accept she was not able to move her arm.[106]
[106]T101
128 The plaintiff agreed she was shown moving right her arm in a celebratory movement but disagreed that was not the motion of someone with pain and restriction. She can move her arm, but she “suffers from it”.[107]
[107]T103
129 The plaintiff explained her norm tends to be a certain level of pain and she tends just to push through a lot. Nobody sees how she is afterwards.[108]
[108]T104
130 The plaintiff agreed that on 12 January 2020 at 1.56pm, she was again shown gesticulating with her right arm well above shoulder level.[109] She also agreed she was shown doing a Mexican wave with her arms raised.[110]
[109]T104
[110]T105
131 The plaintiff agreed she was later shown giving a power salute with her right arm. She was also shown throwing a tennis ball around casually with her right hand.[111] “You could not see the pain [she] went through afterwards. You would not see it unless you lived with [her].”[112]
[111]T108
[112]T109
132 The plaintiff was shown carrying a table. She was really struggling at that stage doing the packing up.[113] She was also struggling when shown lifting a tub which contained soft drinks. She had issues carrying it.[114]
[113]T109
[114]T110
133 The plaintiff agreed the film was a pretty good indicator, a pretty good description, a pretty good snapshot, of the way her arm functions day to day.[115]
[115]T112
134 In re-examination, the plaintiff described the pain to be generally a 4 to 5 out of 10 and could go up to 7 or 8, and last the rest of the day, overnight until the next day.[116]
[116]T112
135 After the activity on 12 January this year, the plaintiff struggled to sleep and woke multiple times during the night. That day, she was carrying the table more with her dominant left hand. When she moved her arm above her head, she ended up with a sharper pain. It is not until afterwards she ends up with that aching.[117] Running has a bit of a jarring impact on her shoulder. She will go running and then will be in pain afterwards.[118]
[117]T113
[118]T115
Summary of taxation returns
Financial Year Ending Payer Gross Payment 30 June 2009 State Sport Centres Trust $370.00 Department of Human Services (T/as Centrelink) $3,510.00 Caulfield Grammar School $1,914.00 Crown Melbourne $883.00 30 June 2010 Centrelink $10,789.00 30 June 2011 Alliance Recruitment Pty Ltd $6,806.00 Maxxia Pty Ltd $21,771.00 Staff Australia Payroll Services Pty Ltd $8,600.00 Centrelink $882.00 Transport Accident Commission $431.00 30 June 2012 Maxxia Pty Ltd $54,828.00 30 June 2013 Maxxia Pty Ltd $50,769.00 30 June 2014 Maxxia Pty Ltd $48,060.00 30 June 2015 Maxxia Pty Ltd $2,785.00 Aurec Pty Ltd $150.00 Caulfield Grammar School $629.00 Programmed Skilled Workforce $13,723.00 Centrelink $2,062.00 30 June 2016 Trivett Automotive Retail Pty Ltd $5,292.00 Active Sites Alive Pty Ltd $626.00 Caulfield Grammar School $1,685.00 Programmed Skilled Workforce $3,406.00 The Trustee for NGO Family Trust $6,132.00 Centrelink $3,788.00 30 June 2017 The Trustee for MB Automotive Trust $21,705.00 Stratton Finance Pty Ltd $30,461.00 Centrelink $301.00 30 June 2018 Stratton Finance Pty Ltd $54,952.00 30 June 2019 Stratton Finance Pty Ltd $55,722.00 Caulfield Grammar $1,043.00
The Plaintiff’s evidence – Section 23A
136 The plaintiff’s explanation for her delay in bringing proceedings was set out in her first affidavit.
137 The plaintiff spoke with the defendant and looked on their website. She was told she had some restricted movement in her shoulder, but unless the injury was debilitating she would not be able to make a claim.
138 At the time of the accident, the plaintiff was only twenty-three and figured she was young and would heal. For many years, there was gradual improvement, but then the pain gradually worsened and it was only when she consulted with Mr Ek in mid 2017 that he recommended surgery. She would undergo that once she obtained approval and felt confident she would be able to keep her job. If she had received that medical advice within six years after the accident, she would have sought legal advice about her potential entitlements within that period.
139 The plaintiff never received advice from a lawyer or otherwise about the six-year period. By the time she had contacted her solicitors, Slater and Gordon, that period had just expired. Her solicitors then began to obtain medical material and assessed the nature of her injuries and personal entitlement.
Claim documentation
140 The plaintiff completed a TAC Claim Form on 17 March 2011. She listed her injuries as follows:
§ clavicle injury, right
§ abrasion knee, left
§ contusion of hip, left
§ nausea and vomiting
§ stiff neck
§ contusion of foot, right
§ bump on head, right.
Lay evidence
141 Jamile Seman, the plaintiff’s mother, swore an affidavit in March 2020. Jamile confirmed that before the accident, the plaintiff was very fit and active, always involved in sports, with tennis being her passion and her life, having played since the age of five.
142 The plaintiff was playing higher grade competitions, training around four times a week and while not officially training, doing other strengthening and conditioning by herself.
143 The plaintiff competed in top level tennis before the accident, playing in State level and National tournaments, as well as pennant. She had begun coaching before the accident and it was her goal to pursue a career as a tennis coach of a tennis school in the future.
144 The deformity on the plaintiff’s right shoulder was clearly visible after the accident. The plaintiff was not really one to complain, but it was clear she was in pain and taking analgesic medication to control the pain. She had always been very resilient, but after the transport accident, Jamile noted changes in the plaintiff.
145 The plaintiff was not as outgoing and active as she used to be. A few years after the accident, the plaintiff moved back in with Jamile, and she saw her, on numerous occasions, icing her right shoulder. She needed to help the plaintiff with activities of daily living, like straightening her hair, because of shoulder pain. The plaintiff would try and do as much as she could but needed help.
146 Post-accident, the plaintiff’s tennis involvement diminished significantly. Although she tried to play tennis from time to time competitively in the years thereafter, competitive tennis had essentially stopped. Not long ago, the plaintiff had arranged a fundraiser for a bushfire appeal to raise donations; however, she could not take part on the court.
147 In summary, the plaintiff’s game had become very adversely impacted by the accident, and while she may have a hit here and there, she was not able to compete on anywhere near her previous level.
148 The plaintiff also would become paranoid and anxious about the appearance of her right shoulder since the accident. She generally avoided showing it as much as possible and tended to wear clothing to cover up the deformity. It was not something she liked to talk about and she seemed very self-conscious about the appearance of her shoulder now.
149 Jamile had also seen the plaintiff had suffered mentally, essentially having lost her high level tennis, which was her passion in life. As a result, she has gone through psychological change. Pre-accident, the plaintiff rarely became depressed and she was always a sporty person playing tennis and doing Muay Thai but had now gone backwards dramatically, in a psychological sense.
150 The plaintiff’s friend, Rachael Knez, swore an affidavit on 6 April 2020. She has known the plaintiff since the late 1990s through Keon Park Tennis Club. They were both in the highest grade of juniors. They played in the senior’s league and also played State tennis on Sundays, then would normally play twilight tennis in the spring.
151 They were always at the highest league of each grade and played a variety of tennis competitions in different leagues. Pre-accident, their training regime involved multiple sessions of training during the week, as well as competition on the weekends. They often had hit outs and had their own practise sessions during the week. It was a lot of tennis and in a way tennis was really all they knew. As kids, they really did not have much else going on and would play tennis as often as they could.
152 Following the accident, there was a period the plaintiff could not play tennis at all. The accident had impacted on her ability to stay physically fit.
153 Pre-accident, the plaintiff really wanted to go into coaching and to do so one really needed to be at the top of their game and actively playing tennis; however, after the accident, that pretty much stopped for the plaintiff and she was not able to pursue coaching or career opportunities.
154 Post-accident, they have had a hit together and Rachel has observed the plaintiff’s right shoulder to get sore and uncomfortable. They cannot play a match like they used to and she has seen the plaintiff do stretching exercises in between points to assist with her right shoulder pain. She has also noticed the plaintiff’s hits do not have the power they did pre-accident.
155 Having played tennis with the plaintiff for so long, Rachel was very familiar with her capabilities as a player pre-accident and since has noticed a big change in how she played. These days, the plaintiff is not able to play at the same level she did pre-accident. She now tends to back off and slow down when returning. You also need to have both arms fully functioning when serving and for double handed strokes, and the plaintiff has a great deal of difficulty in that regard.
The Plaintiff’s medical evidence
Hospital attendances
156 At Southern Health Emergency on 18 February 2011, it was noted the plaintiff presented “car versus pedestrian”.
157 The history of presenting complaint was:
“Crossing the road when car hit her. Car was apparently travelling at only 10 kilometres per hour. No head strike, no LOC. Found herself on all fours after the event, right shoulder and upper arm sore.”
158 On examination, there was no midline cervical tenderness. There was a full range of neck movement. There was mild tenderness on the right side of the neck exacerbated by lateral flexion to the left.
159 The right arm was in a sling. It was sore at the clavicle and movement of shoulder. Full range of movement in the hand and wrist. Obvious deformity of right clavicular. Left hand dominant.
160 The provisional diagnosis prior to investigation in Emergency was “? upper arm fracture”.
161 It was noted the x-ray showed a dislocated AC joint. The diagnosis was of unspecified body region, dislocation of unspecified body region. Specific GP letter comments were “AC joint dislocation. Discharge with follow-up with fracture clinic in two weeks.”
162 It was reported in the South Health Fracture Clinic on 1 March 2011 that the plaintiff was two weeks post R Type II AC joint disruption. There was minimal pain. On examination, there was minimal AC joint tenderness and a good range of movement in shoulder. Note on x-ray “? previous clavicle fracture or accessory ossicle”. It was noted the plaintiff has “lump on clavicle, is non-tender, does not recall previous injury/fracture”.
163 The plan was to return to normal activities with a review in four weeks and checking the appearance of the clavicle had not changed.
164 In a Monash Health document dated 10 March 2011, Dr Ho stated the findings were consistent with dislocation of AC joint (right side) with blunt trauma to the shoulder.
165 The Fracture Clinic noted on 29 March 2011 “six weeks post right ACJ dislocation (Type II). Pain resolved. Full range of motion.”
166 X-ray – old changes on clavicle unchanged from previous. The plan was that it was safe to return to normal activities and for the plaintiff to avoid contact sports.
Hallam Medical Group
167 The plaintiff attended Dr Khwaja on 21 February 2011, post-accident. Panadeine was prescribed and a TAC certificate created.
168 In that TAC certificate, Dr Khwaja described the plaintiff’s injuries as right shoulder AC joint dislocation; neck stiffness and soreness; right foot, bruised; left knee, grazed; left hip, sore; right side of head, bump. Her arm needed to be in a sling for at least six weeks for the AC dislocation and she will not be able to drive during that time.
169 It was noted the plaintiff was unable to work as of 25 February 2011 because of pain, arm in sling until 4 March 2011, when it will be reviewed again.
170 The next attendance was four days later when Dr Khwaja noted “Right shoulder dislocated, AC joint inferior dislocation. X-ray report a bit confusing.”
171 The plaintiff attended again on 12 March 2011, when it was noted “Right shoulder AC joint dislocation, able to move much better. Good rom. Reference – referral to physio. Doing full-time work. X-ray requested.”
172 The next attendance was on 10 July 2011, when the plaintiff was seen by Dr Saghir, who noted the plaintiff was travelling to Nepal and various vaccinations were given.
173 While there were no reports from other early treaters, it is accepted the plaintiff attended Narre Warren Physio Sports and Injury Group on 30 April and 28 May 2011, and those services were paid for by the defendant.
174 Further, the plaintiff attended Cranbourne Central Physiotherapy on 29 March and 9 April 2011. These attendances were also funded by the defendant.
175 The plaintiff attended Dr Saffary in Moonee Ponds, as evidenced by a Medicare printout, on 5 and 14 April and 3 May 2011.
Casey Family Practice
176 Dr Lam completed a GP Management Consultant Plan in April 2011. It was noted the plaintiff wanted to get some counselling and had been depressed over the last three months. That started after she was involved in an MCA pedestrian hit by car, had fracture right clavicle and dislocated her right AC joint, out of sling and working for the last three to four weeks, still has intermittent pain.
177 Under the heading “Psychological”, it was noted the plaintiff was not sure why she was depressed, teary, felt anxious, was easily agitated, lacked energy and sleeping a lot. Appetite was okay, concentration and memory poor. It was noted she used to love going to the gym and played tennis but had not done this for months. No suicidal ideation. The goal to be achieved from the treatment was feeling happier, able to cope with her work and studies, find and deal with underlying reason for her symptoms.
178 On 28 July 2011, it was noted the plaintiff’s chief concerns were anxiety, down, no motivation. The problem was first noticed about six months ago.
Kingsway Medical Clinic
179 The plaintiff attended Kingsway Medical Clinic where she saw Dr Ruan on 28 February 2017.
180 It was noted that the plaintiff had had a motor vehicle accident in 2012, had a clavicular fracture and ? split shoulder. There was no operation then. The right shoulder becomes constantly painful and reduced right shoulder movement now and the pain affects her sleep.
181 On examination, there was mild tenderness in the right clavicle on elevating and internal rotation, no swelling of the right shoulder. It was suggested the plaintiff have a heat pack, Voltaren gel and an ultrasound of her right shoulder.
182 When seen on 9 March 2017, the ultrasound results were discussed and it was noted the patient was rather dismissive of results – “There is definitely something wrong with my shoulder.” On examination, there was full range of motion without limitation, although some discomfort in all areas of shoulder movement. The pain was localised to the right upper arm. A referral to an orthopaedic surgeon was discussed and an MRI scan requested.
183 On 22 April 2017, the plaintiff complained to Dr Lee of the right deltoid muscle anterior and post aspect tender on palpation, and on certain position of the right arm. There was no abnormality on ultrasound. “Doing boxing training last three years. The pain has been there for a year. Stopped training for one month. No improvement.”
Highway Medical Centre
184 The plaintiff attended Dr Page on 18 July 2017 requesting a referral to an orthopaedic surgeon and an MRI scan of the right shoulder. It was noted there was an old injury, MVA, hit by car. Fractured humerus and clavicle.
185 A referral was sent to Mr Barwood, shoulder specialist, on 18 July 2017.
Psychological
186 The plaintiff was referred by Dr Lam, to David Conti, psychologist, in mid-2011 when she was assigned to psychologist, Andrea Larkins, for management of her extremely Severe Depression, anxiety and stress.
187 The plaintiff first saw Ms Larkins on 4 August 2011.
188 The plaintiff then advised she almost cancelled the session as she had been feeling much better over the previous couple of days; however, she had been experiencing very low mood, anxiety, feeling edgy and reactive emotionally, and a way to keep busy was working long hours and overtime on Saturdays.
189 The plaintiff said that in the weeks following the accident, she was so happy, almost euphoric. She remembered thinking she was so lucky to survive and really appreciated her life; however, this changed into a low mood and anxiety when reality set in. She talked about the accident. It bothered her she could not remember how she felt after being hit by the car but remembers being hit on her hip/bottom area, then hitting the ground.
190 The plaintiff’s problems with her relationship with her father were discussed.
191 Ms Larkins noted the plaintiff liked her job, was trying to get involved in sport and gym again but finding it difficult. Prior to the accident, she was very sporty and competitive in tennis. Now she felt discouraged by her limitations and also nervous her shoulder would pop out. Socially, she was just starting to go out again and was looking forward to a trip to Nepal in September.
192 On 22 December 2011, there was discussion about the plaintiff’s decision-making process around continuing with a myotherapy course next year, having completed two years but six years to go part time.
193 On 2 February 2012, there was discussion about the problems in the plaintiff’s relationship. It was noted she continued to lack direction with her career but had further studies for the year. She would like to begin a regular exercise program, but lack of motivation and feelings of low energy made it difficult. Her recovery from the accident was not complete, with some continuing discomfort in her body and ongoing anxiety in everyday situations such as crossing the road.
194 The plaintiff was to set personal exercise goals, to write down benefits of exercise and also disadvantages of doing nothing.
195 In the fourth session in February 2012, it was noted the plaintiff was going to the gym five times a week. There was some discussion about her relationship with her partner and difficulties with her relationship with her sister.
196 Trish Thompson, counsellor, saw the plaintiff on 22 January and 10 February this year.
197 Ms Thompson could state the plaintiff had discussed her experience of the accident and, more importantly, the ongoing impact of her injury. She described the psychological distress she had been experiencing over time, which included experiencing unhappiness about the change to her body that the accident caused and the fact she is unable to engage in physical activities in the way she could do pre-accident.
198 Ms Thompson noted the fact this accident has continued to affect the plaintiff negatively, despite the years that have passed, is a source of significant concern for her.
Orthopaedic
199 Dr Wang, upper limb Fellow, saw the plaintiff with Mr Ek in August 2017.
200 It was noted the plaintiff presented with a right shoulder problem that all started about five years ago when she was involved in a pedestrian versus car accident. Right now, her problems seemed to be stemming from the biceps tendon with a SLAP lesion, as well as some subacromial impingement.
201 Dr Wang noted the plaintiff sustained a segmental clavicular fracture which united with non-operative management. He thought also she had dislocation of her shoulder which subsequently self-reduced. This was evident with the presence of a Hill-Sachs lesion on the recent MRI. The plaintiff had ongoing right shoulder problems which had not completely settled down. That was mainly a problem when lifting overhead and with reaching with the right arm outwards. She had difficulty with sleeping and some difficulty doing up her bra. She had had several episodes of physiotherapy and osteopathy in the past with no significant improvement.
202 On examination, most of the plaintiff’s symptoms seemed to be coming from her biceps tendon and SLAP lesion. She was positive for Yergason’s Test and Speed’s Test. Otherwise, she had a full passive and active range of movement with preserved power. She did have impingement, moreso anteriorly, and she was also positive for Hawkins impingement.
203 It was noted a recent x-ray showed a malunited segmental clavicular fracture; however, they did not think that was the source of the plaintiff’s problems. Her AC joint itself was also non-tender. The MRI which they had seen showed an obvious SLAP lesion, likely a Type II. The Hill-Sachs area, as well as the anterior labarum, appeared to be okay.
204 They discussed with the plaintiff the treatment options, and since it had not settled down for so many years, it was reasonable to proceed with a biceps tenodesis to try to take the pressure off the SLAP lesion. Also, given her anterior impingement, they will address the subacromial spur and perform an acromioplasty. It was noted the plaintiff was keen to proceed with the procedure and they would write to the TAC for approval.
205 Mr Ek sought approval to perform right shoulder surgery on the plaintiff. Based on the information provided to him, he believed this to be related to the original injury. The proposed surgery was a right shoulder arthroscopic acromioplasty and biceps tenodesis.
206 In his report of 13 March 2020, Mr Ek repeated a number of the matters that were referred to by his colleague on the initial examination. Mr Ek noted they discussed with the plaintiff the various options in terms of treatment and given her symptoms had not improved for five years, they recommended surgery with a right shoulder arthroscopic subacromial decompression and a biceps tenodesis. He explained that the decompression was to take away the impingement symptoms and relieve her shoulder pain on elevation and when putting her arm behind her back. The tenodesis was to treat the pain over the anterior aspect of her shoulder and the SLAP tear within her shoulder.
207 Mr Ek confirmed the plaintiff was keen to proceed with the procedure and approval was sought from the TAC.
208 If the surgery was not performed, Mr Ek anticipated the plaintiff’s symptoms would continue to persist and not improve. He noted that she is relatively young and active and it is unlikely that they would “burn out” on their own and would likely require surgical intervention.
209 Having not seen the plaintiff since 2017, it was difficult to comment on her current work capacity; however, if the symptoms were similar, he would expect she would still be on light modified duties with no repetitive overhead movements and no lifting over 2 to 3 kilograms.
Osteopath
210 The plaintiff first presented to osteopath, Edward Santamaria, on 4 May 2017. He noted the right shoulder ultrasound of March 2017 showed no pathology.
211 Complaint history set out injury to the right shoulder and collarbone from the accident and a history of left shoulder bursitis one year ago.
212 On that attendance, there was a bilateral shoulder complaint, right moreso:
“Right shoulder – more training. Jabbing more w Muay Thai. Aggr: tennis L handed overhead position. Muay Thai, four to five by per week.”
213 The advice was to follow up with the TAC and get an MRI scan as soon as possible for proper diagnostics.
214 On 18 May 2017, it was noted:
“Training yesterday, worse this morning.”
215 On 8 June, it was noted:
“Pain very similar, three times training, Monday, Wednesday, Saturday.”
216 On 26 June 2017:
“Training, w PT at gym? 30 minutes circuit class. Aggravated with twists, 6-kilogram weights rowing.”
217 On 20 July 2017:
“More sparring w training. Had fall – dropped to ground – aggr SXS. Sharp pain when touching AC joint.”
218 It was noted pain worsened since last treatment. Direct pain and swelling over the right AC joint. Right shoulder pain on abduction. Poor rotation. “PX looking at applying for legal aid for compensation from TAC.” The advice was to avoid any sparring. Needed to focus on weighted rehab only. “Advise when hears about lawyer + WorkCover claim details.”
219 On 27 July 2017, there was an overall improvement of the right shoulder movement, but some restriction at different levels. There was swelling still present around the ACR. The advice was one-on-one Muay Thai resistance training essential.
220 The plaintiff last attended on 3 August 2017, when it was noted “previous treatment continued.”
221 Dr Santamaria reported in March 2020, detailing his treatment of the plaintiff from 23 May to 3 August 2017.
222 Initial focus on treatment was to reduce the right shoulder pain and swelling, and long term, it was hoped to increase the plaintiff’s strength. Dr Santamaria noted that unfortunately the plaintiff did not follow up with treatment, as recommended, after he last saw her in August 2017.
223 Dr Santamaria noted the plaintiff was showing signs of good short-term relief with osteopathic treatment and her shoulder range was also improving but showing signs of relapse as soon as she loaded the shoulder. She was recommended to keep consistent with osteopathic treatment and also introduce a specific rehabilitation strengthening program.
224 Dr Santamaria referred the plaintiff for an MRI scan because the earlier ultrasound did not have enough detail.
225 Dr Santamaria noted the plaintiff had already been seeing a personal trainer who had been monitoring her strength training.
226 As at August 2017, Dr Santamaria thought the plaintiff had gained considerable pain relief but not a full range of motion. She was still showing signs of instability of the shoulder which put her at risk of re-aggravation.
227 Dr Santamaria noted the plaintiff was still participating in Muay Thai during treatment. He advised her not to participate in any activities that would put her at risk of putting force through the upper body and shoulder, and if she was to do so, just use the lower body and not any punching or using pads for resistance training.
228 Dr Santamaria noted there were a number of occasions during treatment where the plaintiff participated in sparring sessions against his advice and landed on the arm to cushion the impact when falling and aggravated her pain.
229 Due to the nature of her injury, Dr Santamaria concluded the plaintiff most likely would have long-term impacts causing instability of the shoulder, but her symptoms should not be limiting her to conduct work and daily activities if being diligent with compliance of rest, treatment and specific rehabilitation programs to help the muscular strength of her shoulder.
230 When Dr Santamaria last saw the plaintiff in August 2017, she was still having aggravation of her symptoms with her strength and conditioning sessions, daily activities and Muay Thai.
Investigations
231 The plaintiff had an x-ray of her right clavicle at Monash Imaging on 18 February 2011.
232 It was reported the distal end of the clavicle was inferiorly displaced relative to the acromion. There was an associated ovoid ossific density at the medial aspect of the acromion which measured up to 12 millimetres in size. No acute fracture line was otherwise evident.
233 It was concluded appearances raised the possibility of an ununited distal clavicle physeal fracture or an accessory ossicle associated with an AC joint injury. It was suggested clinical correlation and comparison views of the contralateral side may be of value.
234 There was an x-ray of the right clavicle on 29 March 2011 at Monash Imaging. It was reported the right AC joint appeared intact with no apparent fracture line.
235 There was a right shoulder ultrasound carried out in March 2017. It was reported rotator cuff tendons were intact and appeared normal. Subacromial bursa was not thickened. Shoulder range of movement was normal. There was no joint effusion and the acromioclavicular joint was not tender. It was concluded there was no rotator cuff injury or evidence of bursitis.
236 There was an MRI scan of the plaintiff’s right shoulder carried out on 9 June 2017. It was reported there was a probable old Hill-Sachs deformity with an old healed SLAP labral tear, with scarring at the central superior labrum. The anterior inferior labrum appeared intact, although with the presence of a probable Hill-Sachs deformity. There was potential of an occult anterior inferior labral tear with scarring. It was noted orthopaedic assessment for any instability was required. There was also a finding of mild bursitis, abnormal AC joint with joint space widening suggestive or a prior injury and subscapularis, and to a lesser degree supraspinatus tendinosis.
The Plaintiff’s medico-legal evidence
237 The plaintiff first saw Stephen Doig, orthopaedic surgeon, in early 2018.
238 The plaintiff told Mr Doig of the accident circumstances and that she fell over and felt her right collarbone was popping in and out. An ambulance was called, and around that time, her right shoulder became more and more sore, and she described having a dead arm on the right side and was taken to Dandenong Hospital, where she was assessed.
239 The plaintiff had x-rays and was told she had fractured her clavicle. She was advised not to have surgery, her arm was put in a sling and she was allowed to go home.
240 The plaintiff was followed up in the Orthopaedic Outpatients at Dandenong Hospital and had two weeks off work. She wore a sling for about three weeks and was then sent for physiotherapy. She felt this was her lot and that she just had to put up with it; however, she continued to have ongoing pain and discomfort and ongoing stiffness. She became worse and worse and became more and more stiff, particularly over the last couple of years things started to deteriorate, but there was no obvious precipitating factor as to why that happened, nor was there any increase in her activity.
241 As a result, the plaintiff saw an osteopath, who advised her she should not be as stiff as she was. Her range of movement was not actually that bad and it appeared to be worse now. She was sent for an MRI scan in June 2017, which indicated there was an old Hills-Sachs lesion, a healed SLAP tear, some acromion bursitis and an abnormally wide AC joint. As a consequence, she was referred to surgeon, Mr Ek, who advised her she needed a subacromial decompression with bicipital tenodesis.
242 On examination, the plaintiff reported her right shoulder felt stiff and sore and weak. It was static. There was no obvious wasting around the shoulder and there was some mild tenderness over the AC joint. Flexion was to 90 degrees, extension 35, abduction 100, adduction 15, external rotation 90 and internal rotation to 65 degrees. These were worse movements than measured by the osteopath. The provocative tests to test the labrum were markedly positive and resulted in pain radiating down the line of the deltoid.
243 The plaintiff had the MRI scan and also some plain x-rays in August 2017, which showed a healed fractured clavicle, which almost looked like there was a segmental fracture present, an enlocated shoulder and a very wide AC joint. There was not an obvious Hill-Sachs lesion on these films, but then a subtle one may have been missed on plain x-rays.
244 Mr Doig diagnosed ongoing right shoulder dysfunction post dislocation of the right shoulder, with fractured right clavicle and AC joint disruption.
245 Mr Doig thought the injuries were consistent with the accident. The presence of the lesion indicated there was a dislocation. Since there was no other incident, it appeared that occurred at the time of the accident. That would explain why the plaintiff had the dead arm feeling and the pain radiating down the arm. Since then, she had ongoing problems and that was almost certainly secondary to the lesion.
246 Mr Doig thought the AC joint is a little wide, but it is not too marked, so he did not think it was the AC joint widening causing most of the dysfunction, but probably the lesion. He noted that the plaintiff’s treating orthopaedic surgeon agreed with this, which is why he had the recommended surgery. Mr Doig did not think the plaintiff was completely stable then, because she was considering surgery. He allowed a 5 per cent impairment. He thought the prognosis was only moderate.
247 When next seen in late 2019, the plaintiff advised there had been no real change in her situation.
248 Again, on examination, there was no obvious wasting around the shoulder and there was some tenderness over the AC joint and over the anterior aspect of the shoulder, with the suggestion of crepitus over the anterior aspect also. Flexion was to 90 degrees, extension 20, abduction 95, adduction 25, external rotation to 65 and internal rotation to 45 degrees, somewhat worse than when seen last time.
249 The right shoulder was more irritable. There was no real crepitus in the subacromial space, although there was some mild tenderness in there. Once again, stressing the labrum with a Hawkins Test was positive. There were no further investigations.
250 Mr Doig knew the plaintiff went down to working part time.
251 Mr Doig confirmed the injuries were consistent with the accident. Presence of the lesions strongly indicates there was a dislocation of the shoulder in the accident. There had almost certainly been a labral tear, as well as a fracture of the clavicle, and that explains the plaintiff’s initial symptomatology.
252 Clinically, Mr Doig would consider the plaintiff had done really quite poorly and had been left with a very stiff shoulder, which was continuing to cause her ongoing pain and discomfort. As far as the AC joint was concerned, he noted last time it was slightly wide, but although there is some discomfort over it, he did not think it was the major problem she has. He suspected it was probably the SLAP lesion and the ongoing problems that the plaintiff has had as far as that is concerned. He thought the prognosis was considerably more guarded, noting she had decided against surgery.
253 Mr Doig was asked to comment on surveillance film of 12 September 2019 which he noted showed the plaintiff playing badminton, but did not add anything. In the 12 February 2019 film, the plaintiff was shown in a shop, but did not show any significant right shoulder movement. She was able to use her phone in her hand and walk down the street.
254 On 10 December 2019 at 12.09pm, the plaintiff was in the gym swinging her legs. At 12.11pm, she was boxing, using both arms.
255 Mr Doig noted that extensive video on 12 January 2020 showed the plaintiff setting up a table at a tennis club, and she appeared to move freely and carry drinks in both arms. At 11.12am, she hugged another person with her right arm easily at 90 degrees with no obvious discomfort. At 11.21am, she tied her hair up in a bun using her right arm, and it was apparent her right arm flexed to about 130 degrees and externally rotated to about 80 degrees, movements which were significantly better than when examined by him on 10 December 2019.
256 The plaintiff was then shown on the tennis court. At 12.16pm, there was an episode where she leant on the fence with her right arm at 90 degrees, again, without any difficulty. At 3.41pm, she carried some signs in both hands and then carried some tubs in both hands.
257 The only part that Mr Doing considered really was important in all the videos was at 11.21am, when the plaintiff was showing a range of movement at the right shoulder somewhat better than was measured on examination, when he measured 90 degrees of flexion. She is able to move up to 130 degrees of flexion. The video of her playing tennis did not really make much difference because she was using her left hand, which was the dominant one. Accepting he could not measure the degree of flexion, but had estimated it while tying her hair in a bun, he considered 130 degrees was a very conservative estimate of what it should be. If in fact, it was correct, and it was 130 degrees, he reduced the upper limb impairment he had allowed under the Guide from 8 per cent of the upper limb to 3 per cent.
[127]T143
Credit
313 As Maxell P said in Haden Engineering Pty Ltd v McKinnon:[128]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[128](2010) 31 VR 1 at paragraph [12]
314 Counsel for the defendant attacked the plaintiff’s credit in relation to her evidence about a number of significant matters.
315 Firstly, in her viva voce evidence, the plaintiff gave a totally different explanation for her refusal to have the surgery suggested by Mr Ek than she had earlier deposed to.[129] The second credit issue was her suggestion that she had hoped for a coaching career before the accident.[130] The third was the plaintiff’s presentation on examination and in Court compared to her level of movement and activity shown on the surveillance film.[131]
[129]T143-145
[130]T145
[131]T146
316 It was also submitted there was also a credit issue arising in the sub-paragraph (b) application, with the complete absence of any mention by the plaintiff of any concern with her shoulder/clavicle area until her January 2020 affidavit.[132]
[132]T147
317 In response, counsel for the plaintiff relied on the admission by the defendant that between 28 October 2019 and 19 January 2020, there was 83.7 hours of surveillance over thirteen days, with one hour and forty-three minutes of film, one hour and forty-one minutes being on the same day.[133]
[133]T154
318 It was submitted the plaintiff’s explanation for any difference in her level of movement on examination from that on film should be accepted. On examination, she moved to a certain level, like 90 degrees which was measured. However, she could move further but then had pain.
319 Counsel submitted the difference in movement was ultimately a question of degrees– twenty degrees.[134] Further, it was submitted there was no real physical activity shown in the film, with no forceful action of the plaintiff’s right arm.[135]
[134]T164
[135]T163
320 As I indicated during the hearing, I thought there was a sharp contrast between the level of movement shown to doctors on examination and in the Court, and what was shown on the film.
321 Having seen the film, Mr Doig reduced his upper limb impairment in line with the greater range of movement shown.
322 It is not the situation the plaintiff described where she does not move her right arm much unless she has to.
323 However, I do accept that the plaintiff was not doing anything particularly vigorous on the film; she is not doing push-ups with her right arm.[136] However, I do not accept she “suffers ” later for the level of activity shown on the film as she claims.
[136]T163
324 I did not find the plaintiff to be a credible witness and I have significant concerns with her veracity. Accordingly, I have difficulty accepting her complaints of significant ongoing right shoulder pain and restriction since the accident.
325 It has not been satisfactorily explained why the young plaintiff, said to be so focussed on a coaching career, for whom tennis was a passion, did not seek medical treatment for six years.[137] In her first affidavit, she described a gradual improvement in her shoulder condition before a worsening in 2017 when she sought treatment. Medical practitioners such as Mr Doig were told by the plaintiff that she had ongoing shoulder problems from the time of the accident. The plaintiff’s subsequent left shoulder problems requiring treatment complicates this issue further.
[137]T158
326 The plaintiff also gave conflicting explanations as to why she did not proceed with surgery in 2017. She also deposed to an understanding of the suggested surgery but in her viva voce evidence had only a vague, limited memory of her conversation with Mr Ek. She made no mention in her second affidavit that she did not proceed with the surgery because she could not be given a 100 per cent guarantee of success.
327 The plaintiff’s evidence about her planned coaching career was unsatisfactory and vague.[138] She was unsure whether she had coached at Caulfield Grammar pre accident. Her 2018 affidavit suggested she last coached pre accident in 2015, when her taxation summary revealed coaching at Caulfield Grammar in the 2018-2019 financial year.
[138]T174
328 In her affidavits, the plaintiff understated her tennis involvement, having played pennant on a fill-in basis, whatever grade, last year, and she intended to play for the same team again this year if the season progressed, on the same basis. This involvement is not “a very limited game with her left hand”[139] or trying to play on a few occasions but having to stop because the pain was unbearable.[140]
[139]First affidavit
[140]Second affidavit
329 Although having travelled overseas extensively since the accident, the plaintiff made only one brief reference to overseas travel in 2016 in her first affidavit. There was no mention in either affidavit of the plaintiff’s ongoing participation in Muay Thai, a sport she took up after the accident.
330 The plaintiff’s failure to mention her 2016 left shoulder complaint was unexplained and surprising, given she was seen by a specialist and was given an injection by her general practitioner that year.
331 Further, if the plaintiff’s right shoulder/clavicle area caused her so much distress, she would have mentioned it to treating psychologists or other practitioners when examined prior to the hearing. No mention of any concern in this regard was noted by treating psychologists, Ms Larkin in 2011-2012, and Ms Ingamells in 2014. Instead, it was first mentioned by the plaintiff in her January 2020 affidavit, it having been brought to her attention by Mr Owen in December 2019 and raised at the subsequent TAC conference.
332 While these credit issues alone are not enough to defeat the claim, they are a relevant consideration when taking into account all the evidence in this application.[141]
[141]T164
Range
333 Counsel for the defendant submitted the Court will be “impressed by” the entire absence of any right shoulder treatment when the plaintiff has attended her general practitioners on sixty-one occasions for unrelated matters from 2011-2017. Further, the lack of medication, the suggestion of surgery and the plaintiff’s failure to go on with it, “lead to the inevitable conclusion that the pain is really not that bad”.[142]
[142]T149
334 It was also submitted that the plaintiff’s complaints of pain and restriction were inconsistent with her level of activity, particularly engaging in Muay Thai, a “very strange form of exercise for a person with a seriously injured right shoulder to undertake, as opposed to a number of lighter activities.” It was submitted that it was difficult to conceive of something that was more likely to cause shoulder problems than that sort of regular workout.[143]
[143]T152
335 It was also submitted the plaintiff’s involvement in hiking, snowboarding and significant overseas travel was inconsistent with her level of shoulder complaint.[144]
[144]T150
336 It was submitted there were no consequences in relation to the plaintiff’s work, as she had been in full-time employment since the accident, with ongoing salary increases.[145]
[145]T151
337 Further, it should not be accepted that the plaintiff was building up towards a career as a tennis coach at the time of the accident. She had last coached in 2009, as her taxation records indicated. In that year, she obtained her only coaching certification, achieving Level 1 and had gone no further.[146]
[146]T152
338 In terms of playing tennis, the plaintiff herself had said that she peaked before the accident at seventeen, when she was her smartest and fittest. She had continued to play pennant and midweek competition, but because of full-time work pressure, she had receded from that tennis involvement. However, she has still maintained an active involvement, playing A Grade in Shepparton in 2015 and continuing to play pennant at Hawthorn. Her VicTennis prolife with an A- ranking was also relied on.[147]
[147]T153
339 Further, it was submitted the plaintiff’s left shoulder continues to be a problem. There has not been the necessary disentanglement of the consequences thereof in a Peak[148] sense.[149]
[148]Peak Engineering & Anor v Mackenzie [2014] VSCA 67
[149]T154
340 Counsel for the plaintiff detailed the early treatment and investigations undertaken by the plaintiff leading to the last attendance on a physiotherapist on 28 May 2011.[150] While there was no formal treatment thereafter until 2017, it was submitted there had been the odd myotherapy treatment.[151]
[150]T156
[151]T157
341 In seeking to explain the six-year gap in treatment, it was submitted the plaintiff said she continued to suffer ongoing pain. Her complaints of ongoing pain were stressed and the fact that she is a young plaintiff who has had pain for so long.[152]
[152]T170; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
342 Counsel explained that a young woman with a passion for tennis would not seek treatment because “there are athletes at times who do not react the same way – they don’t react in this fashion, where there’s some psychological decompensation that comes into play.”[153]
[153]T158
343 It was submitted the Court had to balance up and put into the equation the plaintiff’s consistent story to doctors, albeit post 2017, when she starts to see the osteopath and is referred to Mr Ek, the clear history that she provides that she has had problems with her right shoulder dating back to the accident, and that there had been a significant increase in her symptomology in 2017.[154]
[154]T159
344 Counsel for the plaintiff acknowledged tennis, on its own, was insufficient to satisfy the serious test.[155] It was not put as highly as the plaintiff had lost a professional career.[156] However, the level at which she played and the frequency thereof had reduced significantly after the accident.[157]
[155]T170
[156]T165
[157]T167
345 It was submitted the right shoulder injury had not only diminished the plaintiff’s enjoyment and capacity to play tennis, but also her dream of coaching. Pre accident, she had obtained her Level 1. Although that was two years before the accident, it was submitted often later in life, athletes such as AFL players obtained their accreditation. Further, the plaintiff had done some coaching before the accident although the income had not been declared.[158]
[158]T174
346 While the plaintiff has not taken painkilling medication for some time,[159] it was submitted she has required ongoing treatment in the form of Nurofen, ice packs and heat packs.[160]
[159]Kelso v Tatiara [2010] VSCA 12
[160]T171
347 Although there were left shoulder complaints in in 2016, counsel for the plaintiff submitted the Court had to look at the consequences at the date of hearing. Presently, the left shoulder is far less serious than the right.[161]
[161]T167
348 It was submitted the plaintiff’s involvement in Muay Thai showed a level of stoicism, that she tried to do the best she could, and she found it empowering.[162]
[162]T171
349 Counsel relied on Rodowsky v Transport Accident Commission,[163] that it was relevant to consider what had been lost, as well as what has been retained.[164]
[163][2016] VCC 56 per Judge Misso
[164]T179
350 There was also the corroboration from lay witnesses that was unchallenged.[165]
[165]T174
351 Finally, counsel relied on the expected mental consequences of the plaintiff’s physical injury – her frustration at being unable to perform her pre-injury activities and interference with activities of daily living.[166]
[166]Richards & Anor v Wylie (supra); T171
Disfigurement
352 Counsel for the defendant repeated his submissions as to the plaintiff’s credit in relation to this application, adding “until three months ago, no one would have any idea the plaintiff had a claim under sub-paragraph (b)”.[167]
[167]T180
353 Further, it was submitted not too much should be made of close ups and one should look at a real life picture.[168]
[168]T148
354 Counsel for the plaintiff submitted the plaintiff did not complain earlier about the appearance of her shoulder/clavicle because of her great level of self-consciousness. It was submitted her explanation for her delay was satisfactory, and she could not be expected to have knowledge of the various subparagraphs of the Act.[169]
[169]T178
355 For an application under sub-paragraph (b) to succeed, it is not a necessity for a disfigurement to have always been in view.[170] It was submitted there was an obvious deformity which the Court must assess both subjectively, in terms of its impact on the plaintiff, and objectively. She had deposed as to its effect on her in detail.
[170]Garcia v Transport Accident Commission [2015] VCC 140; T175
356 It was submitted it was a very significant disfigurement which had caused significant embarrassment and self-consciousness, sufficient to satisfy serious disfigurement under (b).
357 Further, the Court was entitled to take into account psychological effects of the disfigurement when considering an application under (b).[171]
[171]Garcia (supra); Judge Saccardo in Hollis v Transport Accident Commission [2011] VCC 502
Findings
358 Taking into account all the evidence, I am not satisfied the consequences of any right shoulder impairment are “serious” as at the date of hearing. I do not accept that any right shoulder injury has had the debilitating effect on the plaintiff’s life that she described.
359 I do not accept the plaintiff has suffered ongoing pain of the nature she has described since 2017, from the time of the accident. Had she had this level of pain and restriction, she would have sought medical treatment after May 2011 and before 2017 to enable her to try to pursue her tennis ambitions.
360 Further, it is difficult to accept, with significant right shoulder problems, the plaintiff would participate in Muay Thai boxing, let alone commence her involvement in that sport, after the accident. As osteopath, Dr Santamaria, and Dr Parnell noted, the plaintiff’s continued involvement in that sport was of concern to both of them. The running or skipping involved in training for this sport jarred the plaintiff’s shoulder, as she described.
361 The plaintiff did not mention her involvement in Muay Thai after the accident to medico-legal examiners. Nor were they aware of the right shoulder problems she had with this sport as documented by Dr Santamaria.
362 Further, activities such as snowboarding would also be inappropriate for a person with an injured shoulder.
363 The plaintiff was clearly a very good tennis player before the accident, having peaked on her description at about seventeen. Thereafter, full-time work took over her time and competition was restricted to weekends, but still at a high level playing pennant. While not playing with the same frequency or at the same level since the accident, the plaintiff is now thirty-two and working full time in a well-paid job. She was able to play pennant tennis for part of last year and intends to play again on a fill-in basis once the competition recommences.
364 The history recorded by Dr Parnell in relation to the left shoulder in March 2016 complicates the issue for determination and makes it difficult to accept any problems the plaintiff now has with tennis or other activities are due to her right shoulder alone.
365 That attendance was for a year-long left shoulder problem playing tennis. There was no mention by the plaintiff to that shoulder specialist that her tennis was already limiting her due to the right shoulder or that she had any problems at all with her right shoulder. Dr Parnell noted the plaintiff was “otherwise well”.
366 The plaintiff agreed she told Dr Parnell she had been doing push-ups at the time. Further, Dr Parnell noted the plaintiff had tried physiotherapy, myotherapy and acupuncture over the previous year for her left shoulder, all of which gave only temporary relief. There are no details of this treatment or mention of it by the plaintiff in her affidavits.
367 Also, when the plaintiff saw Dr Lee at Kingsway Clinic in February 2017, she complained of right upper limb problems doing boxing training for three years and made no mention of the accident.
368 I do not accept that the plaintiff has been unable to take on a coaching career because of any accident-related right shoulder injury. There is little evidence of any plans she had made in this regard pre accident. Her last coaching accreditation was two years earlier.
369 While the matter was not raised during the hearing, interestingly, Ms Larkins noted in December 2011 that the plaintiff was considering the future of her myotherapy course of which she had completed two years and had six years to go part time.
370 The only income declared from pre-accident coaching was a small amount of $1,900 in 2009 at Caulfield Grammar, when the plaintiff could not really recall working there. She has been paid for more coaching since the accident, with earnings from coaching at Caufield Grammar of less than $2,000 in the 2015-2016 and 2018-2019 financial years.
371 I do not accept the plaintiff would have difficulty with activities such as housework given her ability to continue Muay Thai boxing.
372 With the level of her sporting activity, I am not satisfied the plaintiff had to reduce her administrative work to part-time hours last year because of difficulty coping with work because of any right shoulder issues.
373 The plaintiff has not been prescribed painkilling medication for many years. While she takes Nurofen and uses various gels on her right shoulder, this regime was suggested at Kingsway Clinic in February 2017.
374 I am not satisfied the plaintiff has significant sleep problems due to her right shoulder pain. She already had problems with sleep due to left shoulder pain, as she reported to Dr Parnell in March 2017.
375 There has been no satisfactory disentanglement of any of the plaintiff’s left shoulder issues, they not having been mentioned by her in her affidavits or to any medico-legal examiners.
376 While the lay evidence supporting the plaintiff was unchallenged, it was unreliable and vague in a number of regards.
377 The plaintiff’s mother, Jamile, did not mention a decrease in the plaintiff’s competitive tennis after she commenced work. Her evidence as to the plaintiff’s pre-accident coaching and later plans was vague. Further, it was not correct that post accident, the plaintiff’s competitive tennis essentially stopped and that she only had a hit “here and there”. It was also incorrect that the plaintiff engaged in Muay Thai before the accident. Further, there was no mention of any left shoulder problems or treatment post accident.
378 Rachel’s affidavit was also somewhat vague as to the plaintiff’s tennis coaching plans. While she had played tennis with the plaintiff post accident and noticed changes in her game, Rachel made no mention of the plaintiff filling in for pennant in recent times. There was also no mention in her affidavit of the plaintiff having left shoulder problems playing tennis post accident.
379 Taking into account all the evidence, I am not satisfied the consequences of any accident-related right shoulder impairment are serious. Accordingly, the application pursuant to sub-paragraph (a) is dismissed.
380 I am also not satisfied any disfigurement consequences are “serious”.
381 Significantly, there is the issue of late complaint, particularly in circumstances where the plaintiff was seeing psychologists and others for treatment and no mention was made by her of any concerns with the appearance of her shoulder/clavicle.
382 When seen by psychiatrist, Dr Serry, in February 2018, he noted the plaintiff reported there had been no marked impact on confidence or self-esteem levels. Counselling undertaken on a number of occasions before 2020 focussed on relationship issues.
383 I do not accept the plaintiff’s explanation as to the tattoo on her left shoulder after the accident. If anything, that tattoo would, in my view, attract attention to the plaintiff’s upper body, including her right shoulder.
384 This cosmetic issue was first mentioned by Mr Owen, who pointed it out to the plaintiff on examination in December last year.
385 In my view, while the disfigurement was obvious on close viewing, and as Mr Owen described “cosmetically different from her left side”, it was not ugly, raised or discoloured. Mr Owen described it as a slight asymmetry. It is not apparent unless the plaintiff wears off-the-shoulder clothing. It cannot be described as a serious disfigurement when applying the relevant test.
386 The application pursuant to sub-paragraph (b) is also dismissed.
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