Ladlow v TAC

[2024] VCC 518

IN THE COUNTY COURT OF VICTORIA

AT SHEPPARTON

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-22-05398

RAYMOND LADLOW	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Shepparton
DATE OF HEARING:	11 and 12 April 2024
DATE OF JUDGMENT:	12 April 2024 (ex tempore)
CASE MAY BE CITED AS:	Ladlow v TAC
MEDIUM NEUTRAL CITATION:	[2024] VCC 518

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:              Serious injury application – workplace injury – right shoulder injury – whether impairment consequences “more than significant or marked” – whether plaintiff reliable

Legislation Cited:      Transport Accident Act 1986, s93

Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Johns v Oaktech Pty Ltd [2020] VSCA 10; Hamidi v TAC [2023] VSCA 139

Judgment:                  Application granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Walsh	Barbante Personal Injury Lawyers
For the Defendant	Mr P Scanlon KC with Mr S Martin	Solicitor to the Transport Accident Commission

HIS HONOUR:

1Mr Ladlow is a farm worker.  He started working for his farm employer in about 2011.  This meant that he lived on the property with his wife and stepchildren and performed farm labour and work.  This involved him in raking with a tractor.  In the course of driving that tractor on 29 October 2018, it struck a rut in a paddock.  The jolting force of that event caused his head to strike the roof of the tractor cabin and then jam his right arm into the armrest.

2Mr Ladlow submits that the injury caused to his right shoulder in this incident constitutes a serious injury. As he was injured in the course of driving a motor vehicle, his claim falls to be assessed in accordance with s93 of the Transport Accident Act 1986. There is no dispute that he suffered an injury to the right shoulder on 29 October 2018 in the course of his employment while driving a tractor.

3The Transport Accident Commission (“TAC”) submits that there are three barriers to Mr Ladlow succeeding: 

(a)   that he had pre-existing conditions of the back, and pancreatitis that had an effect on his function, which   need to be separated out from any impairment consequences of his right shoulder injury in accordance with the principles in Petkovski v Galetti;[1]  

(b)   that he sustained a severe onset of pancreatitis that hospitalised him from 19 January 2021 to 19 January 2022 and regarding which the parties agreed ꟷ Mr Scanlon:

“And can I just say to you Your Honour as an arrangement reached between the parties as follows, that anticipated cross-examination of the plaintiff about the nature and extent of his pancreatitis, it is deemed by agreement to be unnecessary and unwarranted, given an acceptance by the parties that his, and therefore a significant removal and redaction of cross-examination in the case, by reason of the agreement, which is that the pancreatitis has had a destructive impact upon the plaintiff's capacity for employment and enjoyment of life, and that accordingly, no claim is made for the former.  And so identifying those issues, Your Honour, we say that there is a pre-existing pancreatitis.”;[2]

[1][1994] 1 VR 436; Transcript (“T”) 14, Line/s (“L”) 1

[2]T13, L18-30

(c)   whether, as at about November 2019, Mr Ladlow had recovered from any shoulder injury to such an extent that he no longer suffered from pain and suffering consequences which could be classified as “more than significant or marked”.

4In aid of that last submission, the defendant pointed to video surveillance taken at that time which showed, it alleged, good significant physical function which was at odds with his evidence to medical practitioners, his affidavit material and evidence given in court.  To that extent, issues of the reliability of the plaintiff’s evidence were in dispute.  In the end, the case boils down to whether I accept that  the plaintiff has suffered impairment consequences arising from the right shoulder injury that can be determined to be serious.

5For the reasons which follow, I find that they are. 

Relevant chronology. 

6The plaintiff  was born in July 1968.  His occupational background involves mainly heavy labouring work, being, for example, in the mines, farm labouring or sand blasting, which he did for a short period.[3]  It is relevant that in the mid-1990s he did injure his back at work and was off for about seven years.[4]  He made a claim in respect of that injury, however, he returned to work full time in about 2007.

[3]Plaintiff’s Court Book (“PCB”) 10 at paragraphs [12]-[13]

[4](Ibid) at paragraph [15]

7In 2010, he began employment with the employer in this matter.  That employer is AAMK Pastoral, and they own a farm near Yalca, Victoria, on which dairy cows were run and silage was grown.  Mr Ladlow moved from Queensland with his wife and two stepchildren to take up the position, and he was given a house on the property to live in.  His duties were described by Mr Lloyd Walpole, the farm manager, as being a full-time labourer.  I quote:  “His duties could range from assisting with feeding out  stock through to cropping activities, such as mowing and raking of silage crops”.[5]

[5]Defendant’s Court Book (“DCB”) 12 at paragraph [13]

8His employer noted that, at times, he required a week off work here and there due to attacks of pancreatitis.[6]  He made no mention of back problems inhibiting him in his work.[7]  As for his hours of work, this was not specific due to the seasonal nature of the work.  The plaintiff estimates it at around ten hours per day.

[6]DCB 14

[7]PCB 11 at paragraph [18]

9Suffice to say, it appears that he worked for some eight years with the employer performing a range of physical duties Mr Walpole set out with no difficulty.[8]  He then suffered injury on 29 October 2018 in the manner I have set out.  He told his co-worker, and then employer, a few days later.  He was able to keep working for about two weeks.[9]  He saw his treating doctor on 8 November 2018 and was sent for scanning and investigations. 

[8]PCB 8 at paragraph [3]

[9]DCB 17

10He ceased work around this time, and save for some attempts at return-to-work plans, he has remained off work since this time.  Of more relevance is that, in February 2019, he was referred to Mr Ian Critchley, orthopaedic surgeon, as rest, pain medications and physiotherapy had not proven able to resolve his problems in the right shoulder.  In particular, he was complaining of severe pain in the right shoulder.[10]

[10]PCB 29

11Mr Critchley saw and examined Mr Ladlow in early March 2019 and noted significant muscle wasting in the shoulder with a reduced range of motion.[11]  There was some associated discussion of a possible nerve component to his right arm pain, but this is not relevant to the issues before the Court and does not need to be delved into.

[11]PCB 45

12Much of the investigations and reviews can be passed over, given that they are not in dispute.  It is relevant to note that some of the concern at this time was due to complaint of neck pain and a possible diagnosis of brachial problems, and a potential thoracic outlet syndrome.  It is relevant, however, to refer to some of the relevant imaging, as it was relied upon to identify the injury, and it was submitted to demonstrate the severity of the condition.

13An MRI scan of 20 March 2019 identified the injury on radiological examination in the following terms:  

(a)full-thickness tear of the supraspinatus tendon;

(b)partial thickness tear of the infraspinatus and subscapularis tendon with tendinopathy;

(c)partial subluxation of the long head of the biceps with abnormal signal suggestive of biceps tendinosis;

(d)intra-substance signals in the anterior superior labrum, suggestive of partial tear;

(e)moderate degenerative changes in the acromioclavicular joint with SA/SD bursitis.[12]

[12]PCB 121

14I am cautious in simply being guided to findings as to the injury by recourse to the radiology.  That can only be done after an appreciation of clinical examination, medical opinion, and an assessment of the evidence overall.  I would accept Mr Michael Dooley's opinion in this regard, from a medical perspective.[13]  Mr Critchley's opinion, ultimately in 2019, was that Mr Ladlow had a rotator cuff problem and that surgery was recommended for what he considered a “significant cuff tear”.[14]

[13]DCB 139

[14]PCB 50

15Mr Ladlow expressed the view that he was not keen on surgery and rather preferred to find work that involved lighter duties.[15]  Mr Ladlow then continued on with physiotherapy under the care of the physiotherapist, Mr Ross Lenssen.  There, the situation rested on 11 November 2019.[16]  

[15]PCB 49

[16]PCB 50

16Having set that out, I find that the plaintiff has suffered an injury to the right shoulder, being a full-thickness supraspinatus tear.  This accepts that there might have been a pre-existing condition in the right shoulder, which could be described as minor degenerative changes, prior to 29 October 2019.

17However, as Mr Critchley observed, the lack of retraction of muscle belly on the scanning, indicates a recent insult, and, up to the date of the injury, the plaintiff was working a physical job, normally.  This strongly suggests that a significant, frank insult occurred in the work incident and can be described in detail, as Mr Critchley has done, or as Mr Dooley accepts is a soft-tissue injury.  [17],[18]

[17]Mr Critchley at PCB 57

[18]Mr Dooley at DCB 126-127 though, I note Mr Dooley did not have the radiology.

18Turning to the allegations that the plaintiff’s evidence was unreliable, dealing with the video surveillance.  The TAC place significant emphasis on video surveillance of the plaintiff taken on 18 November 2019.  In reality, though, this was only one aspect of an attack on the reliability of the evidence that Mr Ladlow gave about his functional capacity. 

19It was said that the video was remarkable in a number of ways: 

(a)   that it showed Mr Ladlow changing out of a work shirt to go to an IPAR appointment; this was said to have been done to imply that he was not engaged in physical work;

(b)   that he was wearing work boots, which show that he was working when he told doctors he was not;

(c)   that, after the appointment, he changed into a work shirt and can be seen raising his right arm straight up at 180 degrees, which was in contrast to his affidavit, and also the history that he had given to numerous doctors as to the range of motion of the right arm, being particularly, doctors, Mr Critchley, DrBarton, Mr Wallace, and Mr Dooley, thereby impacting their opinions;

(d)   that he was seen carting a load of framing timber which was considerable in quantity, in contrast to his cross-examination of it only being six to twelve pieces, and which furthermore indicated that he was building a chook shed;

(e)   that he was seen at Bunnings loading five 20-kilogram bags of cement into his trailer, by needing to bend from the waist and picking the bags up to waist height, or slightly over, to place them into the trailer.

20Cross-examination on the video was also said to reveal areas Mr Ladlow's evidence was unreliable.  This was so in respect of: 

(a)   his evidence of how timber was loaded into his trailer ꟷ he said it was by a forklift, when it was clear that the timber was loose and would be difficult for a forklift to load without it being in a pack;

(b)   the description he gave of how the chook shed was to be constructed ꟷ he was alleged to have given evidence which was inherently unlikely as to the framing; use of cement to secure posts, which he ultimately described as “Reo Bars of under 400 mill”.

21I start by considering the evidence that the plaintiff gave in court generally.  I found him to be a reasonably straightforward witness.  I do not consider much can be read into his presentation in court, given how little time I observed him.  However, on the issues to do with the building of the chook shed, his evidence was hesitant.  He did not seem to be giving the entirety of the truth, and often his evidence seemed inherently improbable.

22For example, he gave initial evidence that he had only six to twelve pieces of timber.  The video shows much more than that.  He tried to explain that this was because the timber had cleats.  This did not make things any clearer.  Then as to the posts required for the chook shed his evidence was hard to follow in relation to how the “reo bars” were to operate as posts.

23His evidence as to the loading of the timber by forklift was implausible - how could the tines of a forklift pick up loose pieces of timber was unexplained, and he then resorted to saying the timber was in packs.  But they were not in packs in the trailer.  Overall, this evidence was not easy to follow and I consider it was unreliable.  While it is often said that the reliability of a plaintiff’s evidence is critical in a serious injury application, all the evidence in the case needs to be assessed.[19]

[19]See Cakir v Arnott's Biscuits Pty Ltd [2007] VSCA 104; Johns v Oaktech Pty Ltd [2010] VSCA 10 and Hamidi v TAC [2023] VSCA 139

24Turning, then, to the other matters said to arise from the video.  The critical component relates to the unloading, or the loading, of the cement bags into the trailer.  This is heavy work, requiring the pushing of a trolley with about 100 kilograms, and then lifting of about five 20-kilogram bags off the trolley and into the trailer.  The other critical component was the footage showing  the plaintiff’s  lifting his arms fully up to put a shirt over his head.  It was accepted that from fifteen hours’ footage, some seven minutes were shown across three days.

The raising of arms to put the shirt on.

25Having seen the footage before the Court,  the plaintiff accepted that the range of motion of his right arm he displayed in the surveillance was not given to Dr Barton and Mr Wallace, at least.  In my assessment, the footage of the plaintiff raising his arms to put his shirt on is significantly different to the history given to some doctors, and also in court.

26In court, he demonstrated that he could only raise his arm to 90 degrees, the same as the history given to Mr  Kossmann[20] of 80 degrees; Dr Barton,[21] one-third range of motion; Mr Critchley in March 2019;[22] and Mr Wallace.[23]  However, there is no doubt that this matter has been considered by other doctors.  Mr Critchley did not consider it to be inconsistent with his examination[24] ꟷ neither did Mr  O'Brien.[25]

[20]PCB 89

[21]DCB 19

[22]PCB 45 and 57

[23]At PCB 40

[24]PCB 132 at paragraph [7]

[25]PCB 13

27It is also my assessment that the surveillance caught a moment in time, which is not inconsistent with the plaintiff telling most doctors that he was independent in activities of daily living.  As Mr  O'Brien pointed out, that involves dressing, which involves putting shirts on.  It is implicit, then, that the plaintiff was indicating an ability to put shirts on, like that which is seen in the video.  Overall, then, I do consider that there is an area of unreliability in the plaintiff’s evidence as to his ability to raise his arm, on occasion, beyond 90 degrees, as at November 19, in order to put a shirt on.

The cement-bag unloading. 

28This is a more substantive matter which arises from the loading of five 20-kilogram cement bags.  The defendant relies on the fact that this is clearly inconsistent with the plaintiff’s complaints in respect of the function of the right arm.  In particular, the defendant submits that this demonstrates what Dr Barton referred to as “a degree of overlay” in the plaintiff’s presentation.  In addition, it is said to support the opinion of Mr Dooley, that Mr Ladlow is “using both limbs freely and being able to engage in heavy lifting, manoeuvring and physical activity”.[26]

[26]DCB 140

29I do not accept that opinion, or that the footage is representative of an unrestricted range of capabilities.  First, the video is of a short moment in time and is not necessarily representative of his overall functional capacities.  Second, at all times, the work was done at waist height.  It is apparent from nearly all medical evidence that the problems associated with the right shoulder arise particularly when the arm gets to a position of extension from 90 degrees and beyond.

30Here, there is no extension beyond that plane, and further, there is no extension with weight above shoulder height.  Third, the treating specialist is of the opinion, having seen the video surveillance, that it is not inconsistent with his history, diagnosis, and prognosis.[27]

[27]PCB 131 at paragraphs [7] and [8]

31This opinion of the treating specialist, who has been involved in the care of the plaintiff from the initial insult until today, is particularly important.  He has a significant benefit over medico-legal specialists who have seen the plaintiff only much later, and at sporadic levels.  I make it plain, then, that I do not accept the opinions of Mr Dooley and Dr Barton on this point and prefer Mr Critchley's opinion.

32Fourth, this opinion of Mr Critchley is supported by other medico-legal orthopaedic specialists, such as Mr Kossmann[28] and Mr O'Brien.  There were other matters which were also said to affect the reliability of Mr Ladlow’s evidence and to suggest he had functional capacity significantly in excess of what he had deposed to.

[28]PCB 94 at paragraph [3]

33These can be grouped into the following areas:

(a)   The welding matter[29]

A medical note of 6 August 2019 was produced which showed the plaintiff had been welding.   The plaintiff admitted that he continued to weld at that time and could do so using his left arm.  There is no suggestion that this is incompatible with the plaintiff’s evidence at that time.  In fact, the plaintiff had said to his treating doctor in 2019 that he was in fact looking for other work, other than farm labouring.

That is consistent with welding tasks.  In addition, he had deposed to welding, but in a restricted manner, after his injury.[30]  Overall, then, I find there is no inconsistency in  the plaintiff’s  evidence on account of this evidence as to welding, or the cross-examination on it;

(b)   The chooks, garden matters

The plaintiff admitted, in cross-examination, to building a chook shed and gardening.  As to the building work he did, he gave evidence in cross-examination that this was more supervisory.[31]  He had deposed to enjoying gardening prior to his injury, and then being restricted in such activities after the date of injury.  This was said to be contrasted to the findings on examination of doctors that he had calloused hands that were recently dirty.[32]

I consider the fact of callousing for a long-term farm worker is entirely unremarkable.  The presence of dirt is compatible with the plaintiff’s evidence of gardening, which he had deposed to doing, but in a restricted fashion, both in his affidavit and in cross-examination.  I find the plaintiff’s  evidence on this point is not unreliable;

(c)   Clinical records, 3 August 2020[33]

This note from the treating doctor records:

“He has some stock/chickens and a veggie patch.  His mate is the landlord.  He's not charging him rent.  He does jobs managing cattle”. 

[29]Exhibit D3

[30]PCB 17 at paragraph [50]

[31]T29, L2

[32]Dr Barton at DCB 92

[33]Exhibit D5

The plaintiff  accepted this was correct, save for the looking after of stock.[34]  The plaintiff’s affidavit evidence is consistent with this.  I accept that evidence that he can do such tasks in a restricted fashion as of the date of the note;[35]

(d)   Clinical records, 7 September 2022[36]

This refers to the plaintiff  falling off a veranda and striking his right shoulder.  The plaintiff denied the fall was onto the right shoulder, but accepted that the fall occurred, and said it jarred his entire body.[37]

[34]T23, L19

[35]PCB 17 at paragraph [50]

[36]Exhibit D4

[37]T24, L15

34It was put by the defendant that this fall had a permanent effect on the right shoulder.  I reject that submission, given the author of the note conducted an examination of the plaintiff  some two weeks later and made no mention of this alleged permanent aggravation.[38]  This is good, contemporaneous reporting, rather than relying on an isolated medical note for one date in time.

[38]PCB 28

35Stepping back then and reviewing all of the evidence, I find that the plaintiff is unreliable in specific parts of his evidence, being his ability to raise his arms to put on clothing, and further, as to the collection of materials for the construction of the chook shed.  Otherwise, I find that the plaintiff was a straightforward, honest witness, and I accept his evidence.

Impairment consequences

36I now come to assess the plaintiff’s impairment consequences stemming from the impairment of his body function, being the right shoulder and upper arm.  I make it plain that I consider that any pre-existing back condition and pancreatic condition was of no moment and did not result in any impairment consequences, as at the date of the injury, that needed to be delineated in the way that is set out in Petkovski v Galetti.

37This is because the plaintiff had worked at a hard, physical labouring role, without restriction, from at least 2010.  Only at very specific times did he have a period of treatment for his pancreatitis.  This was isolated, and he then returned, in an unrestricted fashion, to work.  The same can be said in respect of any underlying degenerative changes in the right shoulder.

38To the extent that Mr Critchley accepted the injury on 29 October 2018 was an aggravation injury, it is clearly delineated from that which occurred after the date of injury.  This is because of the plaintiff’s ability to work unrestricted before the injury, and in contrast with the effect of the injury, which was to render him unable to work in that job.

39This is reinforced by the MRI results and Mr Critchley's view, which I accept in preference to Dr Barton and Mr Dooley.  I find, therefore, that the injury on 29 October 2018 was the overwhelming and dominant cause of the plaintiff’s injury to the right shoulder, which is before the Court.  Given the ongoing nature of the injury since 2018, some six years ago, I find the condition is permanent.

40Having assessed the plaintiff’s impairment consequences flowing from the rotator cuff tear in the right shoulder, and for the reasons set out below, I find that the impairment consequences are “more than significant or marked”.  This is because I accept the plaintiff  as a witness of truth and note that large parts of his affidavit as to impairment consequences are verified by his partner, Ms Hermelin. 

41It is necessary, of course, in performing this task, to isolate those impairment consequences from the right shoulder from those caused by the pancreatitis or any neck injury.[39]  The assessment that is to be conducted is one conducted at the date of trial.

[39]Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraphs [24]-[25]

42I have set out the agreement between the parties in respect of the effects of pancreatitis.  Broadly, that is made on the basis that the condition of pancreatitis is debilitating and has permanent effect.  For example, Mr Ladlow uses a wheelchair and crutches to move about.  He is significantly weakened by reason of the pancreatitis and his significant hospital stays.  Much of the case proceeded on the basis of simply trying to identify what was the situation before the pancreatitis took hold in January 2021; however, that, I consider, is only one piece of the assessment, as the Court must conduct the assessment as at the date of trial.

43Certainly, after the right shoulder injury and up to January 2021, he was significantly restricted in physical pursuits by reason of the right shoulder, which are of particular interest for a man who has worked with his hands all his life.  In addition, the injury is to his right dominant side.  For example, he deposed to not being able to work as he used to after the injury to the right shoulder.  He could not do the woodworking and welding that he used to do, and he enjoyed doing.  As a result, he had to cease his employment on the farm.  His employer then required him to move out of the farm property which came with his job.  These are significant matters, I consider.

44However, by reason of the pancreatitis, it is accepted that he has completely lost the ability to work, presumably because he has lost the ability to walk normally.  So the only consequence of the right shoulder that I consider relevant, and can be isolated, is the weakness and limitation of the shoulder that now affects him, on a background of it being severe enough in the past that it curtailed him in his occupational and recreational pursuits.  That weakness and limitation of the right shoulder affects his ability to use crutches.[40]

[40]PCB 23 at paragraph [10]

45He has also lost the ability to ride his motorcycle as he used to because of the right shoulder.  He gave evidence of attempting only one ride since the injury, however, that is a pursuit which the pancreatitis has taken from him, and I put it to one side.  His right shoulder injury has required ongoing physiotherapy and pain medication daily.[41]

[41]PCB 16 at paragraph [45] and PCB 23 at paragraph [11]

46He has pain and  limitation of right shoulder movement.  He has been recommended to  have surgery both before and after the pancreatitis, but did not, due to fears of such intervention founded on past experience.  Mr Wallace considers he has a very guarded prognosis in respect of any improvement in this regard.[42]  In addition, if he were to have surgery, he could not use the crutches to move and would be wheelchair-bound for a period of time.  It is an invidious position, I consider, to be trapped in a situation which he will have to permanently tolerate.

[42]DCB 89

47However, he did attempt a hydrodilatation procedure in October 2023.  This provided only temporary relief.  This supports my finding of ongoing chronic pain over several years, stemming from the right shoulder, which, by itself, is a substantial burden.  This is separate and distinct from the effects of the pancreatitis and neck injury.  It also has an effect on his sleep, as he cannot lie on his right side.

48There is also a mental impact, which Dr  Ingram has detailed.  I take note of it and consider there has been some mental anguish associated with the tractor incident, but I do not consider it weighs greatly on the scales, given the magnitude of the pancreatic problems, the subsequent hospitalisation, and the very significant impact it has had upon him.  It is also relevant in this assessment to determine that which is retained.  This is complicated by the pancreatitis, however, he can still perform most activities of daily living and use crutches on occasion.

49Balancing these matters overall, then, I find that the significant pathology, the initial impact on his work capacity and physical function until the pancreatitis, and now the ongoing daily chronic pain, need for physiotherapy, need for medication and reduction in what remains of his physical capacity caused by the right shoulder, leads to a finding that the plaintiff has impairment consequences flowing from the impairment of the right shoulder which are “more than significant or marked”.  That concludes my brief oral reasons.

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