Le Page v Transport Accident Commission
[2013] VCC 2046
•19 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-05365
| BRYCE LE PAGE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 October 2013 | |
DATE OF JUDGMENT: | 19 December 2013 | |
CASE MAY BE CITED AS: | Le Page v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2046 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – impairment of the left shoulder and left knee
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Richards v Wylie (2000) 1 VR 79; Humphries v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592
Judgment:Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Clements SC with Ms M Pilipasidis | Slater & Gordon |
| For the Defendant | Ms M Britbart | Hall & Wilcox |
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 him arising out of a transport accident (“the accident”) which occurred on 5 November 2006 (“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”.
4 The body functions pursuant to subparagraph (a) initially relied upon by the plaintiff were the left shoulder, both knees and cervical spine. In submissions, the application was limited to the left knee and left shoulder.
5 The enquiry under subparagraph (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 subparagraph (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: see Richards v Wylie.[1]
[1](2000) 1 VR 79
7 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more that “significant” or “marked”? – see Humphries & Anor v Poljak.[2]
[2][1992] 2 VR 129 at 140-1
8 The plaintiff swore two affidavits and relied upon affidavits sworn by his partner, Chanya Bucha, on 5 February 2013; his mother, Joan Le Page on 3 January 2013; and the manager of the plaintiff’s business, Derek Jardine, sworn on 9 September 2013. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
9 The plaintiff is aged thirty-eight having been born in November 1975. He is presently in a de facto relationship and has a two year old son.
10 Having completed Year 10, the plaintiff did an apprenticeship as a panel-beater. He then ran a carpet cleaning company and later moved into car sales.
11 As at the said date, the plaintiff owned a car detailing shop, Unique Car Detailing (“the business”) in South Melbourne, which he started approximately nine years earlier. Part of that business included a contract with Mercedes-Benz.
12 Before the accident, the plaintiff had not had any injuries of lasting significance. He was in good health and able to undertake an unrestricted range of social, domestic and recreational work and sporting activities.
13 On the said date, the plaintiff suffered injury in a transport accident whilst riding his motorbike in Parkdale when a tow truck with a trailer executed a U‑turn across his path (“the accident”). He was thrown over the trailer, striking both knees on the handlebars of his bike, and he fell on his left elbow and shoulder.
14 As a result of the accident, the plaintiff suffered injury to his left shoulder, a cracked left patella, left knee cartilage damage, and a right knee injury with cartilage damage.
15 Following the accident, the plaintiff attended his general practitioner, Dr Christiansen, at the Cheltenham Medical Centre. He was then prescribed Mobic. Dr Christiansen recommended the plaintiff wait until his knee swelling subsided before commencing any treatment.
16 Dr Christiansen referred the plaintiff to an orthopaedic surgeon for his knees and also to Mr Kantor for physiotherapy for his left shoulder.
17 In December 2006, the plaintiff saw Mr Bracy at the Melbourne Orthopaedic Group for his knee condition and was referred for x‑rays on 4 December.
18 Due to ongoing left shoulder pain, Mr Kantor referred the plaintiff to another orthopaedic surgeon, Mr Evans, who shared Mr Bracy’s rooms. The plaintiff first saw Mr Evans on 12 December 2006. At that time, the plaintiff had significant left shoulder pain and was not able to do any work with his left arm.
19 Mr Evans referred the plaintiff for an MRI of his left shoulder in late December 2008 which the plaintiff understood revealed partial tearing of the upper subscapularis fibres. The next day Mr Evans injected the plaintiff’s left shoulder with cortisone.
20 In cross examination, the plaintiff described how he had a lot of drama with his left shoulder because he was left handed. The cortisone injections administered by Mr Evans made a difference for a short period of time but the plaintiff did not want to take drugs and had been told by doctors he could only have a couple of injections.
21 The plaintiff probably got some relief for about a month and had a short period of feeling better and then his left shoulder just went back to the way it was and then stayed pretty much the same.
22 The plaintiff continued to suffer from ongoing pain and clicking in both knees, and Mr Evans referred him for an MRI scan on 16 March 2007. On the basis of the MRI findings, Mr Evans recommended a left knee arthroscopy which he carried out on 17 April 2007. Due to ongoing right knee pain Mr Evans performed an arthroscopy on 17 August 2007.
23 The plaintiff had acupuncture treatment to his neck on two occasions. He also initially underwent physiotherapy treatment for his left shoulder twice a week for about six weeks with Mr Kantor. He then reduced treatment to a weekly basis for the following six months. Physiotherapy ceased after this time, as he found himself in more pain after treatment.
24 The plaintiff did not feel like physio was doing much for him. Leading up to July 2008, the focus of physiotherapy was the left knee and shoulder but he also had treatment to his right knee.
25 The plaintiff then commenced an exercise regime with a personal trainer at a local gym three times a week for approximately two months, concentrating on exercises to build up muscle strength, but he found exercises aggravated his knee pain, so he stopped.
26 In about mid 2012, the plaintiff rejoined his local gym as his left knee had flared up again and was swollen.
27 As of October 2012 when he swore his first affidavit, the plaintiff’s left shoulder was tight most of the day. He had returned to concentrating on improving mobility and flexibility rather than strength. He did about 20 minutes of stretching with a trainer, and then was limited to using a cross-trainer, as he found the exercise bike and the treadmill too painful for his knees.
28 The plaintiff was then taking diazepam daily for pain, and had done so since the accident. He was taking a glucosamine supplement twice a day to help with his joints, and on occasion he also took Panadeine Forte, but tried to avoid codeine.
29 The plaintiff then continued to suffer from left shoulder pain with pain up through his neck. He had difficulty sleeping and turning his head to the left. If he turned his head to the wrong side during sleep, he was very sore for the rest of the next day.
30 The plaintiff’s left shoulder then sat 2½ centimetres lower than his right. He also suffered from irritation of the right side of his neck due to overcompensating with his right arm and shoulder.
31 The plaintiff purchased a new bed to help sleep, and he initially slept with several pillows due to neck and shoulder pain. He slept with a body pillow to avoid turning on his left side as that aggravated neck and shoulder pain.
32 The plaintiff then also continued to suffer from pain and experienced a clicking noise in both knees. He had been told by his surgeon he may develop arthritis in the left knee. The plaintiff’s knees were painful in cold weather, and they felt stiff in the morning.
33 The plaintiff enjoyed walking, which he needed to do on a daily basis for work, but found that put stress on his knees. It made his knees feel loose and detached, which was very uncomfortable; however, he learnt to live with that discomfort.
34 The plaintiff’s left knee had recently become painful and swollen, which had altered his gait. He was careful when he walked to turn his left foot out slightly in order to avoid pressure on his knee.
35 The plaintiff could experience difficulty and pain when kneeling or squatting. At times, he did these movements; however, he had pain and discomfort when he stood up.
Return to Work
36 After the accident, the plaintiff was off work for about six months. He had to employ a direct replacement in his absence. He voluntarily returned to work because he was bored.
37 After working light duties for about two months, the plaintiff had to take time off work again for approximately a month due to neck, shoulder and knee pain. He had taken countless days off work or left work early due to those conditions.
38 Before the accident, the plaintiff was able to use heavy tools. His daily duties involved polishing and rubbing for fine scratch removals, which required him to kneel, squat and repetitively use his left arm. After the accident he was unable to perform any of this manual work. He is also left handed, and could not use his right hand for those tasks.
39 Following the accident, the plaintiff conducted the managerial side of the business and liaised with customers. Due to his injuries, he employed someone to replace him to perform high end difficult work that he specifically performed for Mercedes.
40 The plaintiff believed that the accident injuries had affected his business adversely. He needed to employ two other people to perform the manual work he previously undertook, paying them about $120,000. If he had not suffered from the accident injuries, he would be able to perform the work of at least one of those employees. That would result in a significant saving. The plaintiff believed that if he was performing that work he would be able to manage the managerial work that he currently performed, as it was not overly time-consuming.
41 At that stage, the plaintiff continued to operate the managerial side of the business, and, whilst it was doing fairly well, he missed undertaking paint-restoration work. He was proud of the fact that he had a very close and personal relationship with Mercedes which resulted in it using him for a significant amount of their specialist work. His inability to perform that work frustrated him, as he enjoyed doing it and was quite proud of the reputation he had developed in that field.
42 In cross-examination, the plaintiff confirmed he had commenced the business under the name of Unique Car Detailing Victoria in 2001 and traded until 2006 when he went into voluntary liquidation because of issues with the ATO. From that time on, he started sub contracting labour as, although it was more expensive, it was more manageable and it gave him a bit more flexibility.
43 This change in the business situation, even though with higher expenses, has resulted in continuous high sales since then with ninety per cent of the work from Mercedes Benz. The plaintiff’s workforce has almost doubled with nine contractors and he now employs a manager, Derek Jardine.
44 The plaintiff’s present work is on a supervisory basis, organising jobs and making things run on schedule to a high quality. He has to fly to Sydney occasionally for day trips to meet with Mercedes-Benz. He has contracts at six dealerships in Melbourne.
45 The business has become a far more successful and really big venture since the accident. The plaintiff never thought the business would get as far as it has. He has pushed it as hard as he can to concentrate on what he believes he is good at.
46 The plaintiff really does not have a standard day. He can do a lot of his work on the mobile phone. He does not necessarily go to the office every day.
47 Walking around to pick up cars, the plaintiff has literally walked the wrong way and felt a pinch in his knee that his flared up his condition.
48 The plaintiff was also involved in a business, Stealth Position Tracking Pty Ltd, which he set up with his brother in 2009 but he ended up walking away from it.
Activities
49 The plaintiff started riding motorbikes when he was twelve. Prior to the accident, motorbike riding was mainly confined to most weekends on country open roads with his brother.
50 Since the accident, the plaintiff had only ridden twice due to his lack of confidence. His bike was written off in the accident, and he had since sold a second motorbike to his brother as he was too scared to ride again. The plaintiff was paranoid about having a further accident and becoming a paraplegic. It was not worth the risk. He would never consider being a passenger on a motorbike
51 The plaintiff’s family is happy that he no longer rides a motorbike.
52 The plaintiff no longer drove a manual car, and had purchased an automatic vehicle. He disliked being a passenger as he felt anxious, very uncomfortable and not in control.
53 The plaintiff continued to have accident related thoughts, and when driving past the accident scene, which he did often, it all came back to him. He was also sensitive to accident reminders.
54 The plaintiff enjoyed snow-skiing before the accident but had not returned or attempted to ski since the accident, as it would be too painful for his knees. Dr Thomas had made an error in the history on examination in October 2011 noting that the plaintiff had returned to skiing.
55 In cross examination, the plaintiff conceded that he did not do much skiing before the accident, only having been once or twice and he had not tried since.
56 Since the accident, the plaintiff had not been able to run or cycle due to the pain, irritation and restriction, particularly in his left knee.
57 Since the accident the plaintiff had also experienced reduced libido, lack of energy and reduced concentration.
58 The plaintiff suffered from poor sleep due to pain, and initially often slept on the couch to avoid waking his partner.
59 The plaintiff’s partner performed most of the housework, but he helped. He could mow the very small lawn and also do supermarket shopping, although he found that carrying shopping bags caused strain on his left shoulder.
60 The plaintiff agreed he could mow a small lawn. He could do the supermarket shopping with his partner and look after his son. He is careful doing things around the house. He is limited in home maintenance, having to get a painter to paint the house when he previously would have done it himself.
61 Prior to the accident, the plaintiff was a very handy person who could do most things around the house and fairly educated because his brother was a builder. He could now not do tasks like tiling the floor any overhead work in the bathroom.
62 In his second affidavit, sworn 3 October 2013, the plaintiff confirmed his symptoms and the consequences had continued.
63 The plaintiff continues to suffer from significant flare-ups from time to time, which often result in him experiencing significant neck pain to the extent that he is unable to move his neck to any great degree.
64 The plaintiff also continues to experience significant left shoulder and bilateral knee pain. When he suffers from such flare-ups he often requires several days off work, causing a disruption to his business.
65 In chief, the plaintiff described he has left shoulder pain daily which is basically a tightness in his neck that goes depending on each day. The pain “echoes” into his neck and down the lower part of his shoulder blade. It is quite painful. He cannot do without medication. There are days when he cannot function.
66 On a daily basis, the plaintiff’s left shoulder pain would be 5 to 7 out of 10, which he medicates to make it manageable. On a bad day, he literally cannot turn his head to the left. The plaintiff agreed that when he turns his head to the right, he gets tightness on the left side of his neck.
67 The plaintiff has left knee pain every day. It feels like there is a bag of nuts in his knee joint and it is crunchy. The pain can get to the point where he is limping and he also requires medication. The pain could be upwards of an 8, sometimes to the point where he will compensate with his right leg and he also turns his left leg out to get rid of the sharpness of his pain.
68 The plaintiff’s pain varies. Most of the time it would be a 5 out of 10 and towards an 8 would be normal. It can increase to an 8 with no cause. The plaintiff is cautious how he walks and how he does things. He gets in and out of the car so he does not twist and hurt himself but his pain still manages to flare up unwillingly. Four to five days a week, his pain increases to 8 out of 10.
69 The plaintiff’s right knee is not as bad. It gets some clicking. He has become right leg dominant to allow for his left leg pain. Some days his right knee is pretty good and it is quite manageable.
70 The plaintiff continues to take two diazepam daily. He believes that medication helps him manage his neck and left shoulder symptoms. At times he also takes Panadol, the amount of which is usually dependent on the level of his symptoms. He also takes glucosamine on a daily basis, over the counter, which helps manage pain and stiffness in his knees.
71 The plaintiff continues to attend Dr Christiansen once a month for check-ups. Whilst he previously had physiotherapy and acupuncture, which provided him with short-term relief, the plaintiff found that in days after such treatment his symptoms returned to their previous level. The plaintiff underwent acupuncture from his physiotherapist twice after the accident but it he not feel good at all after it
72 The plaintiff is extremely concerned and worried about his future.
73 Before the accident the plaintiff was a keen walker. He and his partner went on frequent walks, and he believed they generally walked at least every second day, if not most days, usually for more than an hour.
74 As of 3 October 2013, with his knee pain, the plaintiff struggled to perform that level of walking, and he believed that after he had been on his feet for more than about fifteen minutes he would need to sit down and rest his knees.
75 The plaintiff bought a dog in 2008 and used to walk it locally but no longer does so as it died two years ago. They used to go a couple of times a week for a half hour walk.
76 The plaintiff ultimately agreed in cross-examination that prior to the birth of his two-year old, he used to walk just about every day. Prior to the accident, he went on longer walks but he is now still able to walk 500 metres in the local area. Before the accident, he could walk for an hour and a half. He now cannot walk that distance as it irritates his knee.
77 The 5 kilometres of walking that Dr Thomas mentioned was around the plaintiff’s current workplace.
78 The plaintiff has not been able to go an anniversary walk which he discussed with his twin brother, because of his pain in his shoulder and neck
79 The plaintiff attended the gym before the accident but he has gone more frequently since to try and push on with rehabilitation. He tried using a pushbike but he prefers the cross trainer because it is gentler on his joints.
80 When the plaintiff saw Dr Thomas in 2011, he was going to the gym abut two or three times a week and now goes a couple of times a week.
Family
81 On 22 September 2011, the plaintiff’s partner gave birth to their first child, Ethan. The plaintiff constantly needed to be careful in the way he lifted him so as not to aggravate his neck and shoulder pain. There had been occasions that lifting him had caused a flare-up.
82 The plaintiff was also concerned by the fact that when Ethan got older and became more active, he might not be able to play with him and do activities to the level the plaintiff would have been able to had he not had his accident.
Cars
83 At the time of the accident, the plaintiff was driving a manual. About six to twelve months thereafter he decided to sell that car and purchase an automatic, because his left shoulder and knee symptoms appeared to worsen when driving a manual. However, driving a manual car on a constant regular caused him to suffer increased pain, particularly in his left shoulder and knee.
84 The plaintiff had always been an avid car lover, having a particular interest in old cars. When his father died, the plaintiff inherited his 1966 Ford Falcon.
85 In about 2004, after purchasing the required parts, the plaintiff started the full restoration of that vehicle, which was a significant job to undertake. However, after the accident, he was unable to complete the restoration work, and in the months thereafter, decided to put the car in storage, where it still remains.
86 As a result of his symptoms, which worsened with increased physical activity, the plaintiff did not believe he was currently physically capable of completing the restoration, as many of the car parts are extremely heavy, and the work associated with the project is physically demanding.
87 The plaintiff can still maintain vehicles and can change the oil.
88 Further, before the accident, the plaintiff regularly helped out friends with repair works on their cars and took a great deal of satisfaction from that activity. However, as a result of his accident injuries, the plaintiff had no longer been able to assist and this situation frustrated him.
89 Before the accident, the plaintiff went pistol shooting on a fortnightly basis with his brother. However, as a result of his injuries, particularly in the left shoulder, he has not resumed that activity. He believed his neck and left shoulder would make performing pistol-range shooting difficult.
90 The plaintiff is able to travel and has travelled frequently overseas since the accident. He has probably has been to Thailand ten or fifteen times in the last five years, sometimes going with his wife who is Thai.
Histories
91 The plaintiff was cross examined at length about histories recorded by doctors that his condition had improved at various stages.
92 The plaintiff was taken through a number of attendances where Mr Evans noted improvement. The plaintiff agreed there had been some improvement but his left shoulder had never been fixed.[3] He had improved strength but he still had pain. The plaintiff did not tell Mr Evans he was asymptomatic in July 2007.
[3]Transcript (“T”) 55
93 The plaintiff agreed he told Mr Evans in April 2008 that he had had recurring symptoms in his left shoulder which had developed over the preceding few months. He never told the doctor his left shoulder was healed or that he was having no symptoms.
94 The plaintiff was sent to Mr Danks in relation to a problem with his right hand in March 2011. The plaintiff denied that he told him that his left shoulder was managed conservatively and had gradually recovered. They were Mr Dank’s words. The plaintiff did tell him that his left shoulder dropped and that was something Dr Christiansen had noted.
95 The plaintiff disagreed with Dr Thomas’s comment on examination two years ago that his knees were pretty good. The plaintiff agreed his left shoulder was the main problem. The plaintiff might have said he had improved, but he was just abbreviating and it was not his words to say he was better. Two years ago his knees were better than they are now. He now has more irritation with his left knee. He might have said his knees are okay in view of how they used to be prior to that examination.
96 The plaintiff gets knee swelling now unlike in the past. He agreed he had discomfort when he stood from a squatting position and has not run since the accident.
97 The plaintiff agreed two years ago he was taking Valium infrequently but he now takes it every day and that has been the case for about a year and a half.
98 The plaintiff now feels his left knee is pretty much where it was after the accident. He feels like it is not connected properly and there is a looseness and like his shoe is too heavy.
99 The plaintiff disagreed that the right knee had not been much of a problem since about January 2008. He still had right knee pain. He concentrates on what irritates him most and that is his left knee and the right side of his shoulder and his neck. His right knee does not cause him pain every day. His right knee is definitely better after the surgery.
100 When the plaintiff saw Mr Bracy in January 2008 four or five months after the right knee arthroscopy, the plaintiff disagreed he told him his right knee was good; it was okay compared to what it had been. He agreed he had had no further treatment on his right knee.
101 On that occasion, the plaintiff was still having symptoms in his left knee and needed to have some physiotherapy and his knee was taped. He had physiotherapy for about three months. He did not go back to see Mr Bracy because there was nothing further that could be done.
102 Mr Bracy recommended a proper medical brace designed for the kneecap.
103 About a year ago, Dr Christiansen actually tried two weeks of strapping the plaintiff’s left shoulder up at night to keep the weight off it. However sustained taping was impractical and discontinued.
104 Mr Bracy last saw the plaintiff in April 2008 and suggested an exercise program. The plaintiff could not recall him suggesting injections.
105 The plaintiff has not gone back to any other specialist since 2008. He disagreed that was the case because his knee was not causing him a great interference with what he did on a daily basis.
106 The plaintiff recently has not been strapping his knee but using a compression bandage to see if he can get it back to where it was. He has seen his general practitioner about his knee. After speaking to his doctors and the medico-legal doctors and everyone he has seen, he has been told there is nothing that can be done.
107 Mr Bracy had talked about further surgery but could not guarantee it was going to fix the problem. The plaintiff denied he had not pursued that option because his condition was not too bad. He managed with the pain on a daily basis.
108 The plaintiff could not recall Mr Doig telling him that he should see a further orthopaedic surgeon. The plaintiff has had all the treatment that has been suggested and no one can suggest anything further.
109 The plaintiff thought he had been seeing his general practitioner once a month for the last 18 months but was then taken to notes that suggested he only saw him on five occasions.
110 Every time the plaintiff attends, Dr Christiansen talks about what they are going to do; he always checks the plaintiff and feels his joints and tells him there is not a lot that can be done other than strap his shoulder.
111 The plaintiff told Dr Christinsen of a deterioration in his knee condition. From a general point of view, Dr Christiansen knows the plaintiff has a knee injury and there is nothing that can be done.
112 The plaintiff told doctors he had consistent problems in the last five years. He had not gone out of his way to say particularly right now what has happened in the last two years. He was answering the doctors’ questions. He had spoken to his general practitioner about it. He agreed that the increased intake of Valium had coincided with the increase of pain.
113 In re-examination, the plaintiff confirmed his general practitioner had sent him for an MRI scan of both knees and his shoulder in 2011. That had come about because of the serious amount of pain in his knees and he asked whether there was anything else wrong with him.
114 Dr Christiansen did not suggest any further referral in regard to the plaintiff’s knees or shoulder after these investigations, although they discussed it and he said the knee was a very hard injury to be repaired.
115 Over the last five years, the plaintiff has become more cautious about how he uses his left arm and he is very cautious sleeping. He does not pick up anything that is heavy and tries to use his right hand when picking up things like shopping. Picking up a bag with a 2 litre carton of milk can flare up his shoulder. This situation has not really changed.
116 Basically when they go shopping, the plaintiff’s partner picks up all the items and puts them in the trolley. He carries light items like cereal with his right arm and ensures he does not put any weight on the left side of his body, so that he does not irritate his neck and shoulder.
117 The plaintiff is very careful how he handles his 14 kilogram son. The plaintiff is very cautious because he has had flare ups to the point where he has not been able to turn his head to the left which have lasted up to five days until he could get it back to a manageable state. The plaintiff had not had that situation for a while because he had been very, very cautious about he treated the left side of his body.
118 The plaintiff is aware of what his limitations are and they are quite significant. He is not saying he is disabled and cannot do anything, but he is very restricted in what he can do and how he does it.
Lay evidence
119 The plaintiff’s mother, Joan, swore an affidavit on 3 June 2013.
120 Mrs Le Page described the plaintiff as very active prior to the accident. He enjoyed skateboarding and cycling, and later moved on to a riding a motorbike.
121 Since the accident, Mrs Le Page has noticed the plaintiff continues to have ongoing left shoulder and neck pain and restricted movement. He also complains of headaches brought on by neck pain.
122 Mrs Le Page has noticed the plaintiff cannot lift Ethan high due to his left shoulder pain. The plaintiff used to be quite strong and fit, but she has noticed he has problems lifting things and will often ask for help.
123 The plaintiff has complained to her that he cannot perform his job the way he used to because of neck and shoulder pain. She has recently bought him a heat pack to ease this pain and to hopefully minimise his medication intake, which is a concern.
124 Mrs Le Page described how the plaintiff has ongoing pain in his knees. At times he forgets to protect his knee, and may squat to do something, and will have difficulty and be in pain when getting up from that position.
125 Mrs Le Page is aware the plaintiff goes to the gym to help build up his strength. He has not resumed riding his motorbike, as he has told her he does not feel confident riding any more. She knew the plaintiff previously to be pretty fearless, and can see that this accident shook him very badly. Motorbike riding was something he enjoyed doing with his twin brother, and he does not share this activity with him any more.
126 The plaintiff is not a very good passenger, and would rather drive than be driven. She has noticed the plaintiff becomes very frustrated when in pain. The accident has changed his life, as he is no longer carefree. He is stressed more easily now by his ongoing pain and limitations, as it frustrates him. He cannot do certain things freely now without pain. She is concerned at the amount of Panadol and Valium he takes.
127 The plaintiff’s partner, Chanya Bucha, swore an affidavit on 5 February 2013. She has been the plaintiff’s de facto partner and known him since 2007, meeting him when he was on a holiday in Thailand.
128 The plaintiff complains of left shoulder pain, which she can see is very painful for him. He suffers from disturbed sleep, and cannot sleep for too long in the same bed. He has trouble getting comfortable, and he avoids sleeping on his left side.
129 The plaintiff avoids holding his son with his left arm so as not to strain his shoulder and neck, which is difficult, as he is naturally left handed, so he prefers the left side.
130 The plaintiff tries to help with bathing Ethan, but she does most of his daily care, as she is home full time. She also does all the housework, and tends to do the majority of the shopping. However, the plaintiff mows the small lawn at home.
131 The plaintiff also complains of pain in both knees. When they go to the gym she can do more than him. For instance, she can use the Stepmaster and jog and do free weights. The plaintiff works closely with a trainer who directs him with exercises to perform to protect his shoulder and knee.
132 One of her concerns is the medication the plaintiff currently takes. He relies on Valium daily to help him with pain and to relax, and she feels he takes too much Valium and has often told him this is a concern.
133 Derek Jardine swore an affidavit on 9 September 2013.
134 Mr Jardine is currently employed as the manager of the plaintiff’s business and has been so since about 2008.
135 Mr Jardine has a full time position which requires him to manage staff, advertise, interview and hire staff, invoice, drop off and pick up vehicles and check vehicles. The business also employs three car detailers.
136 Mr Jardine is aware that the plaintiff was injured in a transport accident a number of years ago. The plaintiff does not talk about his accident related injuries, but Mr Jardine is aware that the plaintiff is in considerable pain, as he often observes painkiller type tablets all over his desk and has often seen him take medication at work. He observes by the way the plaintiff walks that he is in significant pain. He has noticed that on occasion the plaintiff leaves work early or he does not come in at all.
137 Since being employed by the plaintiff, Mr Jardine has not personally seen the plaintiff do any car detailing work or perform any physical work on the shop floor. He sees the plaintiff usually in the office doing paperwork, and attending to staff wages.
Treaters
138 The ambulance care record dated 5 November 2006 set out that the ambulance attended the accident scene and the plaintiff refused transport.
139 It was noted that the plaintiff, a thirty year old, was riding a motor bike and a tow truck pulled out in front of him. The patient hit the tray of the truck at approximately 40 kilometres per hour and was thrown over the tray and skidded on his side.
140 There was no loss of consciousness and no head strike. The plaintiff had a full account of the accident. He complained of left thigh pain. The initial assessment was location muscular and soft tissue pain.
141 The plaintiff has been attending Dr Christiansen’s clinic since 2002.
142 Dr Christiansen saw him the day after the accident. There was then bruising to the left thigh, a scrape over the inner leg, just catching his scrotum, sore neck, back and left shoulder. The plaintiff could not straighten knee although both knees were sore.
143 On the initial visit, Dr Christiansen was fairly certain the plaintiff would need specialist referral and sent him to Dr Bracy at The Avenue. Mr Bracy felt the knee x‑rays were normal and decided to see how the plaintiff was after two weeks.
144 The plaintiff was next seen by Dr Christiansen on 18 November 2006. His right knee had recovered but there was tenderness from behind the kneecap. Mr Bracy had begun a taping program on the plaintiff’s knee.
145 As the plaintiff could not abduct on examination on 28 November 2006, Dr Christiansen organised an ultrasound, looking for internal damage but could not find anything wrong.
146 Mr Evans reported to Dr Christiansen in March 2007, that the plaintiff’s shoulder was improving and the plaintiff said his knees were bad.
147 MRI scans of both knees were organised and after that, left knee surgery was performed on 7 April 2007 and later right knee surgery in August 2007.
148 Dr Christiansen noted the plaintiff saw Mr Bracy again in April 2008 when Mr Bracy he felt that each of the injuries would not be improved by operation.
149 In his first report of 15 May 2012, Dr Christiansen thought the plaintiff’s main problem was firstly the loose ACL. His left knee was never stable and it clicked. He noted on its repair, the plaintiff returned to work and had never missed another day.
150 He went from a malingerer to a worker in 24 hours.
151 Dr Christiansen reported that the second problem was the shoulder, noting that there was a lot of muscle spasm and lots of pain. He commented the plaintiff will have “proppy” knee and a sore shoulder forever. He would probably improve over the next decade then stiffen up in his fifties.
152 Dr Christiansen thought the plaintiff’s current capacity for work was that he could not do the car detailing he used to do. He could not lift the same weights and he could not manipulate things around the car yard as he once did. He noted it was the plaintiff’s capacity to have fun that was an even bigger loss. He thought that the plaintiff was a “pretty free wheeling kid” prior to the accident and he is now a careful, responsible man. Dr Christiansen noted it was a pity to see some of the youth knocked out of the plaintiff.
153 In his report of 3 September 2013, Dr Christiansen said there was very little for him to add. The plaintiff now had a family and his business involved little manual work because he simply could not perform it. He listed the plaintiff’s medication and noted clearly the plaintiff had trouble sleeping, mainly because of his shoulder and that the plaintiff played no sport.
154 Dr Christiansen advised the diagnoses were unchanged and the plaintiff’s capacity for work was also unchanged in that he could not walk far and cannot work above shoulder height. Dr Christiansen thought this would not improve in the future and would probably get worse in later life.
155 Dr Christiansen concluded there was no specific treatment for the plaintiff’s permanent injuries, but physiotherapy or chiropractic treatment may keep him mobile.
156 Dr Christiansen provided a list of past prescriptions for the plaintiff from 16 July 2010 until 4 September 2013, during which Valium was consistently prescribed.
157 The plaintiff attended South Melbourne Physiotherapy initially on 1 December 2006 and eight times later that month, five times in January 2007, three in February, five in March, five in April 2007, and twice in May 2007. He resumed physiotherapy in April 2008 when he attended once in May four times, June seven times and three times in July.
158 Mr Kantor diagnosed soft tissue bruising to the neck, rotator cuff strain subscapularis to the shoulder and injury to the patellofemoral joint of the knee.
159 Treatment focussed primarily on soft tissue work to the neck and shoulder and progressive strengthening of the shoulder.
160 Mr Evans, orthopaedic surgeon, reported in September 2013 that the plaintiff was referred by his physiotherapist, Mr Kantor, for an opinion regarding his left shoulder and was first seen on 12 December 2006 and last seen on 21 April 2008.
161 On initial examination, Mr Evans was concerned the plaintiff may have a labral tear in his shoulder and recommended an MRI scan.
162 The MRI scan of December 2006 indicated some tearing of the upper fibres of the plaintiff’s subscapularis tendon but no other structural damage, in particular no labral or biceps pathology.
163 Mr Evans noted the plaintiff was still experiencing significant pain in his shoulder and had been unable to go to his work as a car detailer.
164 Mr Evans administered a subacromial cortisone injection to the plaintiff’s left shoulder and referred him back to his physiotherapist for an ongoing program of range of movement and strengthening exercises. He advised the plaintiff to avoid manual work involving his left shoulder for a period of time.
165 On review in January 2007, the plaintiff reported a significant improvement in his left shoulder symptoms. Mr Evans noted his shoulder pain had resolved but he had still demonstrated some mild weakness of the subscapularis on examination. He recommended the plaintiff continue with the strengthening program and he could start a return to work but could expect some ache in his shoulder over the course of two to three months.
166 Mr Evans noted on 7 March 2007 the plaintiff returned to see him to report further improvement in his shoulder. The plaintiff still had not returned to work as he was finding it difficult to lift the required tools and still had pain with rotation due to the tear of his upper subscapularis.
167 The plaintiff then mentioned his knees had been painful and clicking. Mr Evans noted there was some wasting of the quadriceps particularly on the left and he recommended an MRI scan. The MRI scan of the right knee was unremarkable but on the left, there a parameniscal cyst present around the posterior horn of the median meniscus. Mr Evans recommended an arthroscopy to assess whether or not a significant tear was present.
168 That surgery was conducted on 17 April 2007 and on arthroscopy, it was found there was some fissuring of the cartilage on the under surface of the patella with chondral flaps at the periphery. There was some early degenerative fraying of the articular cartilage in the medial compartment but the meniscus was normal without any evidence of tear. There was, however, a tear of the posterior horn of the lateral meniscus with an associated parameniscal cyst.
169 On 23 July 2007, the plaintiff reported his left shoulder was completely asymptomatic and his left knee had improved following the arthroscopy. His right knee was giving ongoing symptoms which Mr Evans thought were probably related to degenerative change and he thought an arthroscopy would relieve the symptoms, although it was often an unreliable procedure.
170 At the right knee arthroscopy on 17 August 2007, there were some findings of degenerative change involving the under surface of the patella and the lateral facet of the patella. There was chondral flaps in the region of that damage and chondroplasty was performed.
171 The plaintiff returned on 21 April 2008 due to recurrent symptoms involving his left shoulder and left knee. The plaintiff reported some pain and muscle spasm around the left shoulder blade that had developed over the preceding few months. The plaintiff could not identify any new injury.
172 On examination, the plaintiff demonstrated full and pain free range of motion without any localising signs around the shoulder. There was some tightness around his periscapular muscles and Mr Evans thought he was experiencing a muscle ache in that area around his shoulder and referred him for physiotherapy.
173 The plaintiff was then also complaining of recurrent symptoms in his left knee; it was lose and clicked. Physiotherapy was recommended, as the plaintiff appeared to have good ligament integrity on examination.
174 In his 2013 report, Mr Evans noted that he had not seen the plaintiff for five and a half years and when he last saw him, his recommendation was for some physiotherapy for his shoulder and knee.
Correspondence
175 On 8 April 2008, Mr Bracy sent to Dr Christiansen a copy of the MRI scan of the left knee of 3 April 2008 and advised he had suggested the plaintiff undertake a quadriceps exercise program and then see him in two or three months. If the plaintiff was still having pain, he suggested they could experiment with an injection into his medial collateral ligament.
176 By letter dated 28 March 2008, the defendant advised Mr Bracy that it was prepared to fund the MRI of the plaintiff’s left knee.
177 Dr Christiansen wrote to Mr Bracy in March 2008 thanking him for the referral of the plaintiff who presented with persisting left knee problems.
178 Mr Bracy advised examination revealed accurate reproduction of his pain with valgus stressing and quite marked joint line tenderness. He advised he had ordered an MRI scan of the plaintiff’s knee and would contact him later.
179 Dr Christiansen wrote to Mr Bracy in February 2008, advising the plaintiff had had arthroscopies on both knees and his left knee continued to give him trouble, owing to a small patella fracture. He asked for advice whether the plaintiff could play sport and what he could expect in the future.
Medico-legal
180 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, saw the plaintiff on 4 October 2011.
181 The plaintiff then indicated his left shoulder was his dominant problem with what he described as an annoying pain.
182 Secondary to the left shoulder was the knee. The plaintiff reported the knees were pretty good. There was some clicking and that was infrequent. He reported that occasionally his knees felt worse in cold weather and he would occasionally use Mobic.
183 Dr Thomas noted the plaintiff had been able to return to high level activities such as skiing. He also noted the plaintiff had a 12 year old son.!
184 The plaintiff took Valium infrequently for his neck and left shoulder pain.
185 Dr Thomas noted the plaintiff tried to keep himself fit, walking approximately 5 kilometres a day. Prior to the injury, he used to enjoy working on his own cars which he still did when he was able to travel.
186 On examination, there was no evidence of over reaction or non organic signs. There was a full range of left shoulder movement with a painful arc on the left and some weakness in mid shoulder movement. The shoulder had good muscle strength. The left side of the neck was tender and there was slightly tight and mildly reduced movement in some areas of the cervical spine.
187 Examination of the left knee revealed very mild wasting. There was no effusion and the plaintiff was mildly tender over the medial joint line. There was a reproducible click. There was a full range of right knee movement and the right knee was stable.
188 Dr Thomas had available the x‑ray of 4 December 2006 of the left shoulder and both knees, the MRI scan of the right knee of March 2007, the MRI scan of the left knee of April 2008, the MRI scan of the left knee of March 2007, the MRI scan of the cervical spine and left shoulder of September 2011. He also had the MRI scan of both knees of August 2011.
189 Dr Thomas thought the plaintiff had painful arc syndrome and that the MRI scan of the left shoulder of September 2011 suggested some subacromial bursitis may be evident. Dr Thomas thought, given the rotator cuff that was intact, that would be a reasonable working diagnosis. He thought the plaintiff was suffering from subacromial bursitis.
190 Dr Thomas considered it probable the plaintiff also had injury to his neck independent of his shoulder and that appeared primarily soft tissue in nature.
191 Dr Thomas considered it probable the plaintiff sustained injuries to both knees but he did not have the arthroscopy reports. He commented it was difficult to note on the imaging report whether the plaintiff’s patellofemoral abnormalities were congenital or whether they were also damaged in the accident.
192 Dr Thomas thought the plaintiff’s condition had stabilised. He considered the prognosis from the shoulder point of view was for persistent symptoms and at some stage the plaintiff may consider subacromial arthroscopic decompression to resolve the impingement that currently occurred in his left shoulder. He deferred to Mr Evans as to the condition of the plaintiff’s knees.
193 In a supplementary report of 19 December 2011, Dr Thomas reported further having received additional material. He noted the letters from Mr Evans attesting to the plaintiff’s ongoing shoulder problems and his view that he did not feel the shoulder was unstable and could be managed conservatively. He noted the MRI scan of the shoulder also showed some minor tearing in the upper subscapularis and that Mr Evans thought that this might have been part of the plaintiff’s symptom complex to his shoulder. Dr Thomas certainly thought there was some impingement occurring and he considered subacromial bursitis was evident.
194 Dr Thomas noted the arthroscopy reports relating to both knees. He thought overall Mr Evans’ operation report confirmed the plaintiff’s main problems related to his patellofemoral joint and no so much the knee joint itself.
195 Dr Thomas thought as far as the left knee was concerned, it was reasonable to indicate that the problem stemmed from the accident. As far as the right was concerned, he thought it arguable that when the plaintiff came off his bike he did in fact hurt that knee. Dr Thomas noted the accident was very significant and overall the knee problems stemmed from it.
196 As such, it seemed like the plaintiff’s problems to his knees were bilateral patellofemoral in nature. Dr Thomas noted the actual knee joints themselves appeared to be intact. There was minor loss of the posterior part of the lateral horn of the left knee meniscus which was not of any long term consequence.
197 Mr Stephen Doig, orthopaedic surgeon, examined the plaintiff in March 2013.
198 On examination, the plaintiff was somewhat tender to the left of the midline of his neck. There was no wasting to measurement in the upper limbs and he had normal power.
199 On the left shoulder, there was some mild crepitus present and some limitation of movement with the right having full movement. Specifically testing of the subscapularis because subscapularis was noted to be damaged at the time of the MRI scan, showed that in fact there was a Grade 4 weakness of subscapularis when comparing it to the right hand side.
200 Mr Doig noted that was not surprising in view of the injury to the subscapularis in the accident.
201 The plaintiff’s left knee was stable with effusion and the patellofemoral joint was normal. The plaintiff had quite marked medial joint line tenderness on the left side. The right knee was stable with no effusion and the patellofemoral joint was normal and there was no wasting.
202 Mr Doig diagnosed left knee lateral meniscectomy, soft tissue injury to the right knee, partial thickness tear of the left subscapularis and soft tissue injury to the cervical spine.
203 Mr Doig thought the injuries were consistent with the accident and he noted that from an orthopaedic point of view, the plaintiff had actually done moderately, noting he was continuing to have ongoing pain and discomfort and soreness in both knees, left shoulder and left neck.
204 Mr Doig thought that was a little surprising, since it is now over six years since the accident. He noted the plaintiff was not having any current treatment and from the way he presented, particularly with the joint line tenderness of the left hand side, it would be appropriate for him to go back and see his treating orthopaedic surgeon.
205 Mr Doig thought the plaintiff’s prognosis was a little guarded and again commented it was surprising he was continuing to have ongoing troubles like this and that was the reason he needed to be investigated further.
206 Mr Doig further reported having seen Mr Evans’ report dated 5 September and Mr Dooley’s report dated 24 September 2013.
207 Commenting on Mr Dooley’s view about the lack of accident relationship with the meniscal tear and it was most likely to be an incidental finding, Mr Doig commented it was not all that common to find a tear in young people and since there had been a specific history of injury, he considered the meniscal tear was most likely related to the accident. He agreed with Mr Dooley there was soft tissue injury to the neck and he agreed with Mr Dooley’s comments that the plaintiff would continue to have some intermittent bilateral anterior knee pain which would limit his ability to carry out heavy impact activities or squat or kneel on either knee and that he would also have difficulty carrying out regular heavy physical work.
208 Mr Doig concluded the injury to the left knee was a tear of the lateral meniscus and that was most likely related to the accident. He thought the prognosis was reasonably good. He thought there was a soft tissue injury to the right knee and the prognosis was very good. The most likely diagnosis in relation to the left shoulder was a partial thickness tear of the subscapularis that had not fully resolved, which was why the plaintiff had an ongoing weakness that was present.
209 Mr Doig thought the prognosis of that was only was only moderate and repeated that he was a little surprised that the plaintiff was continuing to have troubles despite the initial appropriate treatment.
Investigations
210 Mr Bracy, on 4 December 2006, organised an x‑ray of the plaintiff’s cervical spine, left shoulder and both knees.
211 It was reported no fracture was shown of cervical spine. The pre vertebral soft tissues were normal. There was no bone narrowing of the exit foramina and the facet joints were well maintained.
212 On the shoulder, the left glenohumeral joint space was well maintained. The articular margins were smooth. There was no proximal humeral fracture shown. The AC joint space was maintained and there was now down slope to the acromion.
213 The joint space was maintained in all compartments of both knees. The articular margins were smooth. Each patellofemoral joint was mildly dysplastic with a shallow femoral trochlear and a dominant lateral facet of each patella. It was noted appearances were slightly more obvious on the left side and there was no joint or effusion on either side.
214 On 16 March 2007, Mr Evans organised an MRI scan of the plaintiff’s right knee.
215 It was reported there was mild fissuring of the cartilage over the weight bearing surface of the lateral tibial plateau. There was no meniscal tear. There was mild ulceration of the patella cartilage and a small ganglion near the anterior root of the medial meniscus lying with the fat pad.
216 An MRI scan of the left knee on 16 March 2007 was reported showing a small (10 millimetre) parameniscal cyst adjacent to the posterior horn of the medial meniscus. It was noted, whilst that raised the possibility of a meniscal tear, a definite one had not been demonstrated on that study. It was noted the lateral meniscus was intact. The ACL was mildly scarred but grossly intact. There was a healed injury to the proximal MCL. There was a tiny PCL ganglion cyst and mild lateral patella subluxation.
217 Mr Bracy organised an MRI scan of the plaintiff’s left knee on 3 April 2008. It was reported there was no meniscal tear. The radiologist suspected there had been a prior injury to the ACL which had healed to the intercondylar notch. It was noted there was mild vertical orientation of the PCL, suggesting a degree of ACL laxity. There was borderline patella alta with no fat pad oedema. There was a dysplastic patellofemoral joint with mild chondral fissuring over the patella apex and a scarred MCL.
218 Mr Evans organised an MRI scan of the plaintiff’s left shoulder in December 2006. It was reported there was no labral tear. There was partial tearing of the superior insertional fibres of the subscapularis and no bone contusion or fracture.
219 Dr Christiansen organised an MRI scan of the cervical spine and left shoulder on 1 September 2011. In relation to the left shoulder, there was mild AC joint narrowing and capsular swelling consistent with mild arthropathy. There was small volume subdeltoid-subacromial fluid in the appropriate circumstances which could represent mild bursitis. There was no evidence of tear or tendinopathy of the rotator cuff tendon. There was a small volume of simple fluid present in the long head of the biceps tendon sheath.
220 In the cervical spine, there was no fracture or focal bone lesion and the craniocervical junction was satisfactory.
221 Dr Christiansen organized an MRI scan of both knees on 31 August 2011. In relation to the right, it was reported there was minor loss of articular cartilage overlying the lateral patella and in the lateral tibiofemoral articulation. In the left, there was minimal loss of articular cartilage overlying the lateral tibiofemoral compartment.
The Defendant’s medico- legal
222 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff in August 2007, between the left and right knee arthroscopies.
223 Mr Shannon was asked his view regarding liability for the arthroscopic surgery on the right knee; therefore he did not perform a detailed examination of the left shoulder.
224 Mr Shannon noted however the available material suggested that the plaintiff sustained essentially soft tissue injury to the left shoulder and that an MRI scan showed some minor tearing of the subscapularis but no evidence of instability or impingement.
225 Mr Shannon noted the report of the treating surgeon indicated the shoulder settled well and no further treatment was necessary.
226 The plaintiff told Mr Shannon he felt as if his left shoulder had dropped. He advised of two cortisone injections in the shoulder and some physiotherapy and that the shoulder settled fairly well and he now had only quite minor pain. The plaintiff had not gone back to work because of ongoing problems with his knees.
227 On examination, there was minimal anteroposterior laxity in both knees. There was minor lateral tracking of the patella particularly on the right. There was no effusion and not much crepitus on patella compression. Squatting produced crepitus on the right but not the left.
228 Mr Shannon had the x‑ray of both knees of December 2006 and the MRI scan of both knees in March 2007.
229 Mr Shannon thought the plaintiff may well have sustained direct trauma to both knees and the report indicated he had a small tear of the posterior horn of the medial or lateral meniscus on the left. He thought that would be an unlikely sequel of direct trauma but it remained a possibility. He noted in any event, the plaintiff had undergone left knee surgery. Mr Shannon thought in the right knee, there was clinical evidence of mild chondromalacia of the patella which could have been precipitated by the accident.
230 Mr Shannon considered arthroscopic surgery would be reasonable and the liability of the defendant.
231 Mr Shannon concluded the plaintiff had sustained soft tissue injuries to his left shoulder and both knees. He thought the symptoms had an organic basis and could be attributed to the accident.
232 Mr Shannon noted the plaintiff was perfectly capable of administrative work and would certainly have difficulty in performing car detailing which presumably involved a fair amount of kneeling, squatting and repetitive use of the left arm.
233 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on behalf of the defendant in August 2013.
234 The plaintiff then complained of ongoing pain in the cervical spine and left scapular region and also noted ongoing intermittent pain in both knees.
235 On examination, there was tenderness along the dorsum of the cervical spine and over the left shoulder girdle region. There was some limitation of cervical movement. There was full range of movement of both shoulders and the upper limbs were intact neurologically.
236 Mr Dooley found no effusion of either knee. There was patellofemoral tenderness of both knees, with the right being more tender than the left. There was no specific meniscal tenderness. The knees were stable.
237 Mr Dooley noted there was an MRI scan of the left shoulder in December 2006, an MRI scan of the right knee in March 2007 and also an MRI scan of the left knee that month.
238 Mr Dooley believed the plaintiff suffered impact to both knees and a soft tissue injury to the cervical spine region and left shoulder region in the accident.
239 Mr Dooley thought the plaintiff sustained impact injuries to his knees which would have involved some damage to the superficial articular surfaces of the patellofemoral joints of both knees.
240 Mr Dooley noted patients with those sorts of injuries can note ongoing intermittent anterior knee pain which can worry them with a lot of impact activity and with regular kneeling or squatting. Also, such patients may note clicking sensations or crepitus in the knees. In his clinical experience, arthroscopy of the knee rarely helped that condition to any lasting degree.
241 Mr Dooley considered the mainstay of treatment was low impact exercise and fitness and quadriceps strengthening exercises. He noted that the small meniscal tear at the root of the lateral meniscus on arthroscopy was most likely to be an incidental finding.
242 Mr Dooley considered the mechanism of the accident would be consistent with the plaintiff sustaining soft tissue injuries to the neck and left shoulder. He thought the cervical spine injury will have involved some musculoligamentous damage and would account for the plaintiff noting some ongoing intermittent neck pain for which no treatment was required.
243 Mr Dooley believed the plaintiff sustained a soft tissue subcutaneous and muscular type injury to the left shoulder girdle region which would account for the ongoing intermittent pain in the region of the scapular. He thought that the MRI scan finding of a partial tear of the superior insertional fibres of the subscapularis tendon was incidental and not related to the accident.
244 Mr Dooley considered the plaintiff would have difficulty carrying out regular heavy physical work and work involving a lot of activity at or above shoulder level.
Other medical evidence
245 The notes from Dr Christiansen’s surgery set out that the plaintiff attended five occasions from January 2012 to 2013. Whilst there was a mention of the plaintiff being referred for MRI in August 2011, on the following visit in October 2011 there was no comment on the results of that investigation. On 29 August, it was noted “well”.
246 Dr Christiansen referred the plaintiff to Mr Danks, neurosurgeon, for advice in March 2011 about the plaintiff’s complaints of right hand pain.
247 Mr Danks reported back to Dr Christiansen in March 2011. In terms of the right arm symptoms, Mr Danks thought the whole matter did not point to a definite diagnosis. He noted the plaintiff described the accident a couple of years ago where he was thrown high in the air and landed on the left shoulder sustaining significant disability in his dominant arm. Mr Danks noted the matter was managed conservatively and the plaintiff had gradually recovered.
248 On examination, the plaintiff had a good range of neck movement apart from restriction in rotation to the right. During that time the plaintiff felt tightness in the left side of his neck, which Mr Danks noted was possibly residual from the motor cycle injury. Neurological examination was normal.
Overview
249 Ultimately this application was brought only in relation to the left shoulder and left knee. As the plaintiff maintains that his major problem is his left shoulder, being left hand dominant, I propose to deal first with that impairment.
250 The plaintiff’s claim in relation to his left shoulder injury was accepted by the defendant.
251 There is essentially agreement between treating and medico-legal practitioners as to the diagnosis of the left shoulder condition.
252 Treating surgeon Mr Evans treated the plaintiff for a tear of left scapularis. Dr Thomas diagnosed subacromial bursitis and noted the rotator cuff was intact having seen the 2011 MRI.
253 Mr Doig thought there was a partial tear of the subscapularis (not having seen the 2011 MRI). Mr Dooley believed the plaintiff sustained a soft tissue subcutaneous and muscular type injury to the left shoulder region, noting that the tear seen in 2006 was incidental.
254 The plaintiff’s condition is organically based and there is no suggestion of any functional factors in his presentation.
255 Prior to the accident, the plaintiff had no problems with his left shoulder. shoulder.
Credit
256 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[4]
“… 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.”
[4][2010] VSCA 69 at paragraph [12]
257 I found the plaintiff to be a truthful, credible witness who was prepared to make concessions where necessary. There was no surveillance film of any activity inconsistent with his evidence, nor did any doctor make any comment about inconsistencies or exaggeration on examination.
258 Whilst there were some errors in histories given by the plaintiff, these ultimately did not alter my view as to his credit generally.
259 Further affidavits supporting the plaintiff’s level of pain and restriction from his mother, partner and employee, were not challenged.
260 The plaintiff has left shoulder pain daily and he continues to suffer from significant flare ups. He rated this pain as 5 to 7 out of 10, which he medicates to make it manageable.
261 Although at times after the injury, the plaintiff has reported an improvement in his left shoulder condition, I accept that he has never been pain free. I also accept that he must have been having ongoing problems with his shoulder in 2011 for his general practitioner to see it necessary to arrange an MRI.
262 In any event, in his rather brief recent report, whilst Dr Christiansen made no specific reference to a deterioration of the plaintiff’s condition in recent years, he thought the plaintiff would have a sore shoulder forever.
263 Following examination in 2011, Dr Thomas considered the prognosis was for persistent symptoms and possibly further surgery in the form of a subacromial arthroscopic decompression to relieve the impingement. Mr Doig thought the prognosis was only moderate.
264 The plaintiff is limited in lifting activities and using his left arm overhead. As Dr Christiansen described, the plaintiff cannot manipulate things with his left arm as he used to.
265 The plaintiff has undergone physiotherapy in the past which did not give him lasting benefit. There was a similar lack of response to cortisone injections administered by Mr Evans.
266 The plaintiff continues to take two diazepam daily to help manage his neck and left shoulder symptoms. At times he also takes Panadol, the amount of which is usually dependent on the level of his symptoms.
267 Whilst further treatment has not been recommended by the plaintiff’s treating specialist or general practitioner, medico legal examiner, Mr Doig thought with the presentation particularly with joint line tenderness on the left side it would be appropriate for the plaintiff return to his orthopaedic surgeon.
268 The plaintiff has ongoing problems with sleep relating to his left shoulder. The plaintiff’s partner Ms Bucha, confirmed this situation as did Dr Christiansen who noted clearly the plaintiff had problems sleeping, mainly because of his left shoulder.
269 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon[5] at paragraph 45:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … [The plaintiff] often experiences multiple painful awakenings in the course of a single night. As … counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
[5]Supra
270 In Stijepic v One Force Group Aust Pty Ltd,[6] Ashley JA and Beach AJA, at paragraph 43, discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[6][2009] VSCA 181
271 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, they considered it relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
272 The plaintiff is only thirty seven and he has a considerable period in which he will experience ongoing symptoms.
273 Although the plaintiff’s business has expanded and been very successful since the accident, the plaintiff is no longer able to do any of the specialist hands-on detailing work he previously enjoyed. Mr Jardine confirmed the plaintiff’s restrictions in this regard.
274 Beyond the workplace, the plaintiff is no longer able to help out friends with their cars. On a personal level, he has been unable to complete the restoration of the 1966 Ford Falcon he inherited from his father as the job is too physically demanding, requiring him to lift heavy car parts.
275 The consensus of medical opinion is that the plaintiff does not have the capacity to undertake heavy physical work involving his left arm and particularly at over-shoulder level.
276 Whilst he can still engage in most activities, the plaintiff is limited by his dominant shoulder in his performance of house maintenance, gardening and domestic tasks. He cannot play freely with his two-year-old son.
277 Because of his shoulder injury, the plaintiff is no longer able to go pistol shooting, which he did fortnightly pre-accident with his brother.
278 Whilst it was not argued, I accept the plaintiff’s frustration resulting from the limitations in his work and daily life as a result of his left shoulder injury are expected emotional consequences of the physical injury which I am entitled to take into account.[7]
[7]Richards v Wylie (2000) 1 VR 99 per Winneke P at 87-88
279 As the plaintiff’s impairment has persisted now for in excess of seven years, I am satisfied it is long term.
280 Taking into account all the evidence, I am satisfied that the plaintiff has a serious injury in relation to his left shoulder and I grant leave to bring proceedings in relation to the transport accident.
281 Having made this finding, it is not necessary for me to consider the application in relation to the left knee.
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