Lock v TAC
[2016] VCC 69
•11 February 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-10-03008
| KRISTIAN JAMES LOCK | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25, 27 & 28 January 2016 | |
DATE OF JUDGMENT: | 11 February 2016 | |
CASE MAY BE CITED AS: | Lock v TAC | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 69 | |
REASONS FOR JUDGMENT
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Subject: Serious injury application
Catchwords: Application for leave to recover damages for pain and suffering – aggravation injury to cervical spine and injury to left shoulder – subsequent transport accident - causal link between accident and injury to cervical spine
Legislation Cited: Transport Accident Act 1986
Cases Cited: Hayden Engineering Pty Ltd v McKinnon [2010] VSCA 69
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Ingram Mr J. Valiotis | Slater & Gordon Ltd Lawyers |
| For the Defendant | Mr D. Myers Mr P. Gates | Transport Accident Commission |
HER HONOUR:
Introduction
1 I propose to grant the applications to commence common law proceedings pursuant to section 93(4)(d) of the Transport Accident Act 1986 (the Act) to recover damages for injury to the cervical spine and to the left shoulder arising out of a transport accident on 14 July 2004 in Churchill Avenue, Chadstone (the transport accident). My reasons for so ordering are set out in the paragraphs that follow.
The evidence called and tendered
2 Subject to making a minor amendment to paragraph 6 of the first affidavit, the plaintiff indicated his three affidavits, sworn on 12 July 2011, 10 October 2012 and 21 October 2015, were true and correct. He was the only witnessed cross-examined.
3 In addition to his affidavit material the plaintiff tendered the following documents from his Court Book:[1]
[1] Exhibit P1, Plaintiff’s Court Book (PCB)
· Reports and/or correspondence from: former and current treating doctors, general practitioners, Dr Koh and Dr Barson, orthopaedic surgeons, Mr Pullen and Mr Ash Moaveni, neurosurgeon Mr Rogers and physiotherapist Mr de Soysa and from medico-legal experts orthopaedic surgeons, Mr Moran and Mr Fogarty, neurologist, Associate Professor Stark, sports and musculoskeletal physician, Dr Wood, neurosurgeon, Mr Brownbill and occupational health and rehabilitation consultant, Dr Middleton;
And from the Defendant’s Court Book: [2]
[2] Exhibits P2 & P3
· Reports of neuropsychologist, Ms Mullaly; and extracts from the Yarra Valley Community Medical Services and Oakleigh Central Station Square medical records.
4 The Transport Accident Commission (the TAC) tender comprised the following documents from Defendant’s Court Book:[3]
[3] Exhibit D1, Defendant’s Court Book (DCB)
· Extracts of clinical notes of treating general practitioner, Dr Kahn, Burwood Health Care and from the Dixon Street Medical and Dental Group; reports from medico-legal experts, occupational physician, Dr Sillcock and consultant orthopaedic surgeon, Dr Boys; and the Claim for Compensation Form.
And from the Plaintiff’s Court Book:[4]
[4] Exhibit D2
· Report from physiotherapist, Mr Levin summarising the record of treatment by another physiotherapist, Mr Sternfeld.
Background matters
5 The plaintiff is 41 years of age. He lives with his wife and three of their four children at Steels Creek, Victoria, having moved from their 15 acre property in Yarra Glen approximately 18 months to two years before the hearing.
6 A number of the histories recorded indicate childhood and teenage years marked by disruptive behaviour with periods as a Ward of the State. Despite these difficulties the plaintiff reported a solid work history.
7 The plaintiff is a mechanic by training. At the time of the transport accident the plaintiff had been employed since 2002 as a mechanic with Subaru Melbourne. He worked between 7.15am and 6pm (“each”) day and performed about 10 hours overtime, presumably each week. The plaintiff’s duties apparently involved overseeing the workshop, assisting with repairs, greeting customers and doing costings. He now works as an owner driver delivering commercial cooking equipment, having taken over the operation of his father’s transport business from late 2011.
The circumstances of the transport accident and earliest assessment of injury
8 The plaintiff was injured in the transport accident, when, by his account, a motor vehicle pulled out from the curb and collided with a motorcycle ridden by him. The plaintiff deposes he was thrown over the other vehicle’s bonnet and landed heavily on his left shoulder. The motorcycle was said to be a write-off.
9 At hearing, the plaintiff indicated that at the time he usually saw a doctor at the Oakleigh Square Medical Clinic. Other clinical notes tendered suggest that prior to the transport accident the plaintiff also attended another clinic, the Dixon Medical and Dental Group (the DMDG). However, on this occasion, within 25 minutes of the transport accident, the plaintiff was taken to the Burwood Health Care Clinic where he was seen by general practitioner, Dr Koh. This extract from the doctor’s contemporaneous record of the attendance evidences both clinical and radiological investigation of the plaintiff’s injury:[5]
[5] DCB 32
25 mins ago. Riding motorbike. Hit car that was doing a U-turn. Flung off bike and rested up against pole. Had helmut on.
No LOC. No head injury. No neck pain.
o/e GCS 15, alert and orientated.
CN intact. PERL. EOM ok.
No cervical tenderness. FROm cervical spine. No spinal tenderness.
HS dual. Chest clear. AE R=L. No pneumothroax.
No rib tenderness.
abdo sfot (sic), BS active. Mild LUQ soreness. Pelvis ok.
Left knee bruise and soreness.
Left arm tender proximal humerus. Left clavicle, elbow, hand and fingers ok. Nerovasc intact.
Diagnostic Imaging Requested (VIG) – Ap/Lat-cervical spine, chest, left shoulder and humerus [Motorbike accident, hit by a car]
Script Written – PANADEINE FORTE (TABLETS) [20]
Script Written – VOLTAREN (TABLETS) 50 mg [50]
XRay-no fractures seen.
Soft tissue injury.
Left arm sling. Analgesia. TAC form done. Pt going to police station to do report and breathyliser.
R/V Friday.
10 The clinical notes kept by Dr Koh between 16 July 2004 and 13 May 2006 indicate ongoing investigation (ultrasound on 2 August 2004 and MRI on 26 August 2004) and treatment of mainly left shoulder pain and symptoms.
11 In answer to a specific question, the Claim Form signed by the plaintiff and witnessed by his wife on 20 July 2004 relevantly lists “all” injuries suffered as:[6]
shoulder pain – left side, knee pain – left side, arm pain – left side, numbness in hand – left side
[6] DCB 86
12 On 21 July 2004 the plaintiff was referred to physiotherapist, Harold Sternfeld to whom on 27 July 2004 he apparently reported “a deep ache” and pain and weakness in his left shoulder.[7]
[7] PCB 38
13 The next referral was to specialist in upper limb surgery, orthopaedic surgeon, Mr Pullen on 9 August 2004.
14 Dr Koh’s notes also record complaint of left knee and left elbow symptoms on 9 October 2004 and his recommendation that the plaintiff raise these further complaints with the treating surgeon:[8]
[8] DCB 30
Medical certificate issued: ‘In my opinion he is unfit for work from Saturday 9/10/04 to Monday 1/11/04 (inclusive).”
For shoulder arthroscopy and debridement for shoulder on 19th Oct.
Limited abduction to 90, flexion 80. Pain on ext rotation.
Difficulty with changing gears when driving.
2. c/o left knee pain. Has had left knee pain for several years. Aggravated during accident.
c/o mild lateral joint tenderness. No swelling or effusion. Ligs intact.
3. c/o groove in skin left inner arm. elbow flexion ok.
Pt will discuss left elbow and knee with ortho surgeon when he sees him.
Script written – TRAMADOL HYDROCHLORIDE (TABLETS) 150 mg [20]
Completed TAC forms. Ok for light duties. Amend/cancel certificate.
Liasie with patient – agree to RTW plan.
15 Having examined the plaintiff and viewed the results of the MRI of his left shoulder, on 4 September 2004, Mr Pullen, who at time also suspected damage to the rotator cuff, sought and obtained permission from the TAC to proceed with left shoulder arthroscopy, decompression, debridement and rotator cuff repair. He performed arthroscopy and sub-acromial decompression surgery on 19 October 2004. This surgery apparently revealed marked sub-acromial bursitis.
16 Post-operatively the plaintiff returned to Mr Sternfeld for further physiotherapy between 11 November 2004 and 21 December 2004. The report sent to the plaintiff’s solicitors, confirms the treatment was confined to the shoulder injury.[9]
[9] Exhibit D2
17 Whilst Mr Pullen’s only tendered report, dated 6 March 2007, does not mention having received complaint in respect to the plaintiff’s left knee, it shows that he did follow-up on other complaints made by the plaintiff. The first was made during review on 26 November 2004. The plaintiff complained of pain from a lump in the distal aspect of his left arm. Mr Pullen arranged for x-ray and ultrasound investigation of the left humerus and elbow on 1 December 2004. These investigations reported no abnormalities.[10]
[10] PCB 32
18 On review, on 11 February 2005, the plaintiff also mentioned: “problems with some headaches and memory disturbance” in the previous six months.[11] His report and the correspondence sent to Dr Koh bearing the same date shows Mr Pullen’s concern was that any neurological problem or post-concussion syndrome be excluded. He recommended the plaintiff discuss his symptoms with the general practitioner, with a view to undergoing investigation by CT scan and assessment by a neurologist.
[11] PCB 56 and 37A
19 These symptoms were not recorded in any of the preceding eight consultations with Dr Koh. For reasons I will discuss shortly, I was not satisfied the explanation for this was due to either the brevity of the notes made or some oversight by the general practitioner in recording complaints.
20 The entry in the clinical notes of Dr Koh on 12 February 2005 indicates the doctor acted promptly after receipt of the specialist’s letter. He examined the plaintiff and arranged for further radiological investigation of his patient’s symptoms. On that date, the doctor recorded the further history obtained, the results of his examination and the investigation he initiated in the following entry: [12]
[12] DCB 28
1. c/o occipital headache. Mild dizziness. Intermittent since accident. c/o short term memory loss- leaving heater on, forgetting events.
2. Not taking Tramadol.
Had steroid injection by Mr Pullen yesterday.
o/e Cranial nerves intact. PERL, EOM ok. No nystagmus.
Flexion shoulder ok. Adbuction limited overhead.
Fit for full duties as “service advisor”.
For CT brain. Condier (sic) Neurology ref after.
Diagnostic Imaging Requested (VIG) – CT brain [Motorbike accident 3 months ago.
Occipital headache.
Short term memory loss. Mild blurring right eye.]
Script Written – TRAMADOL HYDROCHLORIDE (CAPSULES) 50 MG [20]
21 The results of the CT scan of the brain were not tendered. I, however, understood they were reported as normal.
22 Assessments in 2010 by neurologist, Associate Professor Stark and by clinical neuropsychologist, Ms Mullaly, at the request of the plaintiff’s solicitors, have since revealed evidence of likely mild closed head injury resulting from the transport accident.[13] Notably, on further testing by Ms Mullaly in July 2012, the plaintiff’s neuropsychological functioning was said to have stabilised. On this occasion, the neuropsychologist confirmed memory retention was intact. Ms Mullaly, nonetheless, found changes with evidence of persisting problems with slowed processing and inefficient new learning, which she attributed to subtle high level difficulties caused by the traumatic brain injury.[14]
[13] PCB 117-119 and Exhibit P2
[14] Exhibit P2, 59
23 Notably, records of complaint of headaches, neck/spinal pain or symptoms of sensory disturbance affecting the upper limbs by treating health professionals are conspicuously absent in the earliest period of treatment of the plaintiff by Dr Koh and the physiotherapist and in subsequent periods of treatment in 2005 and 2006 by doctors at the DMDG and between 6 December 2006 and mid-2012 by Dr Khan at the Yarra Valley Community Medical Service (the YVCMS).
24 The DMDG and the YVCMS notes record isolated complaints. When read in context these notes do not suggest any specific or ongoing problem with the plaintiff’s cervical spine. For instance, on 18 August 2005 and 9 May 2006 respectively the DMDC notes record complaint of aches and pains and neck ache and then complaint of a stiff and painful neck since the previous Monday. The former complaint was made, in the context of a likely abdominal complaint, in the treatment of which antibiotic medication was prescribed. Examination of the plaintiff’s neck on 9 May 2006 apparently revealed limited lateral flexion. The note records that a certificate was written.
25 The next and last attendance on Dr Koh was four days later on 13 May 2006 for the treatment of left shoulder pain. As the entry extracted below shows there is no indication that the neck problems reported to another doctor a few days earlier were ever raised:[15]
[15] DCB 28
Mechanical work. Lifts wheels off and on with right arm.
c/o left shoulder pain on flexion, reaching out.
o/e flexion ok. abdiction (sic) to 90. Passive abduction ok. Reduced ER.
Stiffness and deconditioning.
Anti-inflam, analgesia.
Phusio (sic), stretching and strengthening program.
26 On 23 February 2007 Dr Khan at the YVCMS recorded complaint of abdominal cramps and nausea over a week with aching shoulders, stiff neck and a sore left buttock. On 15 August 2007 the plaintiff apparently reported: “headaches left sided, pain in Rt eye – 2 mths”.[16] According to the note made, other than reporting slight tenderness over the left temporal area, examination had not revealed any issue with visual acuity. The plaintiff was advised to attend (“urgently”) if he experienced problems with his vision. The last entry of any note recorded an attendance on 18 April 2008 for treatment of back pain (“back pain radiating to the left leg more than Rt leg, sora (sic) Rt heel”[17]). According to the record kept, examination had not indicated neurological symptoms. The plaintiff was prescribed anti-inflammatory medication, Naprosyn.
[16] DCB 20
[17] Ibid
27 Essentially, there had been no further investigation of the possibility that injury to the cervical spine was also contributing to pain and disability until the plaintiff commenced consulting another general practitioner in 2012.
28 General practitioner, Dr Barson, also from the YVCMS, took over the plaintiff’s care from Dr Khan in June 2012. On 19 October 2012 he obtained a brief history of the transport accident. This and his clinical examination alerted Dr Barson to the possibility that nerve root irritation was contributing to shoulder pain. His letters to the plaintiff’s solicitors dated 14 December 2012 and 16 February 2013 tell us that Dr Barson was responsible for instigating further investigation and assessment of the plaintiff’s neck.
29 MRI imaging in March 2013 confirmed disc degeneration at the C5-6 level with evidence of encroachment on the central canal. Most specialists, who have commented on any neck injury, including treating neurosurgeon, Mr Rogers, have attributed the plaintiff’s complaints of neck pain radiating down the arm and sensory loss, mainly affecting the left hand, to an aggravation injury caused by the transport accident, which by March 2013 had progressed to left C6 nerve root compression.
The affidavits – the injury suffered
30 The injury to which the plaintiff deposes in his first affidavit sworn in July 2011 involves: closed head injury with loss of consciousness; injury to the neck and back, injury to the plaintiff’s dominant left arm “affecting” his elbow, injury to his knee (without stating which knee) and psychological trauma. This affidavit describes ongoing impairment and pain and suffering consequences resulting from injury to the plaintiff’s left shoulder and seeks leave in respect to serious long-term impairment or loss of function of the left upper extremity only.
31 The further affidavit sworn on 10 October 2012 continues in the same vein.
32 In her first affidavit sworn on 30 April 2013, Mrs Lock describes a similar list of injuries. The affidavit otherwise only seeks to corroborate the complaint in respect to the left shoulder injury.
33 Notably, injury to the left shoulder has involved two surgical procedures. More recently, on 17 December 2014, another orthopaedic surgeon, Mr Moaveni, performed arthroscopy and AC joint excision to address suspected left shoulder AC joint arthritis as a cause of ongoing pain. This surgery involved arthroscopic synovectomy and bursectomy, as well as AC joint excision ostectomy of the lateral end of the clavicle.
34 In his final affidavit sworn on 21 October 2015, among other things, the plaintiff deposes to having recovered from the further surgical procedure, albeit with a loss of strength and mobility in his dominant upper limb leaving him with ongoing long-term serious impairment and a range of pain and suffering consequences, which largely repeat those to which the plaintiff originally attested.
35 On this occasion, the plaintiff further deposes to suffering: “chronic left-sided neck pain with radiating pain through the left shoulder and arm as well as tingling and numbness in the left index and ring fingers”, the latter also affecting his right hand “over a long period of time since the subject accident”.[18] The plaintiff attributes his failure to mention any right-sided symptoms to Mr Rogers to his failure to “perceive” that any neck injury might be causative of the symptoms in his right hand.
[18] PCB 19
36 The plaintiff deposes he believes that since the transport accident he has suffered intermittent tingling and numbness particularly affecting the fingers of his left hand which the plaintiff had not understood might relate to neck injury, until Dr Barson initiated further investigation of his symptoms from late 2012.
37 The plaintiff deposes he suffers constant but variable levels of neck pain extending down through his left upper limb and into the fingers of his left hand and, to a lesser extent, tingling affecting his right hand. He now also seeks leave in respect to serious long-term impairment or loss of function of the cervical spine.
38 The following extracts from Mrs Lock’s final affidavit, also sworn on 21 October 2015, offer some corroboration of the complaint of unresolved neck injury as follows:
3. Since my earlier Affidavit, the Plaintiff has continued to suffer ongoing variable symptoms of pain affecting both his left shoulder and neck which to my knowledge, and having observed the Plaintiff over many years since he was involved in the transport accident on 14 July 2004, do relate to that accident.
4. After complaining to me over many years of numbness and tingling in his hands, particularly in the left hand, it was Dr Barson from Healesville Medical Centre who referred the Plaintiff for an MRI scan which showed a problem in his neck and who thereafter referred him to a neurosurgeon Mr Rogers.
…
6. To my knowledge, the Plaintiff has always complained of symptoms in his neck and, following attendances on Dr Barson and Mr Rogers have been found to be related to a neck injury, …..
7. Additionally, to my observation, the Plaintiff’s neck movements are restricted and can be painful. Further, over the years the Plaintiff has developed problems with headaches which can sometimes last for many hours and which have a significant restriction upon his lifestyle.
A second transport accident
39 The plaintiff was diagnosed with whiplash injury following a transport accident on the Maroondah Highway on 21 July 2009 (the second transport accident).
40 The second transport accident was mentioned for the first time in the final affidavits sworn by both the plaintiff and his wife in October 2015. Mrs Lock’s description of the second transport accident as “minor” is not borne out by the evidence as a whole. Objectively speaking, it was a significant collision, as it involved four vehicles. A vehicle driven by the plaintiff rear-ended a stationary vehicle in front with sufficient force to deploy the plaintiff’s airbag and to cause this vehicle to rear-end another and so on. These matters and the fact that he was taken by ambulance to the Box Hill Hospital were conceded by the plaintiff under cross-examination.
41 In paragraph 2 of his affidavit the plaintiff deposes the Hospital diagnosed a whiplash type injury. The plaintiff describes his symptoms and treatment in the aftermath of the second transport accident in the following words:[19]
….some neck pain, left shoulder pain and a sensation of tingling and numbness in my left upper arm. I was investigated and required approximately five days off work but my condition gradually resolved in the weeks and months thereafter and I believe that in the longer-term there has been no ongoing consequence as a result of this particular incident.
[19] PCB 16-17
42 Mrs Lock deposes that the second accident caused a “minimal whiplash injury”.[20] She recalls radiological investigation with advice that the plaintiff “was suffering from pre-existing pathology in his cervical spine at that time”. She concludes with the statement that: “Accordingly, I do not understand the basis upon which the TAC has continued to refuse to fund the necessary treatment for the plaintiff’s neck condition”.[21]
[20] PCB 25
[21] PCB 26
43 Under cross-examination the plaintiff specifically recalled pain in his neck, chest, shoulders and head at the time.[22]
[22] TN 43
44 For reasons not articulated at hearing, the plaintiff did not tender the full set of notes recording the plaintiff’s attendances at the Hospital in the treatment of a likely whiplash injury. The extracts tendered comprise an undated page of handwritten notes and a copy of the results of a CT scan of the upper cervical spine obtained two days after the accident on 23 July 2009. The handwritten notes appear to relate to examinations before the removal of a cervical collar (likely supplied on the date of the first attendance for treatment) and before and after the CT scan. Among other things, these notes initially record complaint of midline tenderness at the C1/2 level but no paravertebral tenderness and pain levels of 1-2/10.
45 The notes show a decision was made to perform a CT scan of the upper cervical spine between the C1 to C4 levels. No discrete fracture or paravertebral soft tissue swelling was identified.
46 The next note suggests that on re-examination there was complaint of: “midline mid cervical spine tenderness as well”.[23] The notes suggest further full CT imaging of the cervical spine had not revealed any fracture. If this imaging was also undertaken the results were not available at hearing. This entry may, however, help explain Mrs Lock’s evidence and the account given to Dr Middleton who, obtained a history in October 2015 indicating that trauma investigations undertaken at the time had discovered “an old cervical spine injury from the original motorbike accident”.[24]
[23] PCB 165Q
[24] PCB 151
47 In any event, the record shows that on further examination at the Hospital there was complaint of stiffness on active movement of the neck but no report of tenderness or midline pain. The notes also record the collar was removed, the plaintiff was put on “simple” analgesics and advised to return if he had problems.
48 At hearing, during re-examination, the plaintiff recalled wearing the collar for three or four days after the scan (presumably the scan on 23 July 2009). He said he stopped wearing this support after being instructed to start moving his head to avoid stiffness. The plaintiff recalled, to my mind without any real conviction (“I think”), that his condition had settled to where it was prior to the second transport accident.[25] His affidavit evidence, nevertheless, suggests that, if as claimed, the whiplash injury resolved, it did so over weeks, possibly months.
[25] TN 77-78
49 Not surprisingly, the plaintiff relies on the absence of any record of further attendances in the treatment of likely whiplash injury to the upper cervical spine. I will explain my findings in this regard in due course.
The application
50 The application for leave in respect to the cervical spine and left shoulder was made under paragraph (a) of the definition of ‘serious injury’. Section 93(17)(a) defines this as: ‘serious long-term impairment or loss of body function’.
51 As noted above, apart from radiological evidence of mild degenerative changes at the C5-6 level, the initial clinical examination by Dr Koh and the pathology revealed by x-ray investigation of the cervical spine on 14 July 2004 had not indicated evidence of traumatic injury to the cervical spine.
52 It was submitted on the plaintiff’s behalf that neck injury suffered in the transport accident was untreated until late 2012. The plaintiff’s counsel sought to characterise the whiplash injury suffered in the second transport accident as a temporary exacerbation of the earlier injury to the plaintiff’s cervical spine as a result of the transport accident.
53 In this case, the plaintiff was required to prove serious long-term impairment or loss of body function of each body function, the cervical spine and/or the left upper limb arising from the transport accident. Viewed globally, the consequences of injury to each body function caused by the transport accident must be both serious and long-term.
54 The test in respect to injury caused by the transport accident was whether the consequences, pain and suffering and loss of enjoyment of life consequences, including an alleged loss of the opportunity to return to work as a mechanic should his circumstances alter in the future, when judged by comparison with other cases in the range of possible impairments or losses could be fairly described as at least very considerable.
55 No submission was made that any psychological sequelae should inform the Court’s assessment of the seriousness of any physical injury to the spine and/or left upper limb caused by the transport accident.
56 The TAC contended the application for leave in respect to both body functions should be dismissed.
57 Injury to the left shoulder was conceded. The TAC, nonetheless, submitted the consequences attributable to any transport-accident related injury to the plaintiff’s left shoulder did not meet the requirements of the narrative test.
58 Whilst apparently accepting the diagnosis of degenerative disc disease with evidence of compression at the C5-6 level, the TAC further submitted the plaintiff had failed to establish sufficient causal link between the transport accident in July 2004 and the pathology revealed by MRI imaging in March 2013. Alternatively, where these were discernible, any consequences attributable to any transport-accident related injury to the plaintiff’s cervical spine did not, the TAC submitted, meet the requirements of the narrative test.[26]
[26] TN 103 and 116
59 Notably, the causation issue was further complicated by the absence of evidence that treating doctors had knowledge of the second transport accident, its circumstances and the resulting whiplash injury. Moreover, the histories recorded by most of the medico-legal specialists, before and since neurosurgeon, Mr Brownbill examined the plaintiff at the request of his solicitors on 3 April 2013, do not allude to this accident or consider the likely impact of any whiplash injury suffered at the time.
60 Ordinarily these omissions would reduce the weight given to the opinions expressed had it not been for other evidence which establishes a likely unresolved injury to the cervical spine since the transport accident. This other evidence is summarised shortly.
61 Finally, the TAC submitted the Court should treat as unreliable, indeed implausible, various claims made the plaintiff. Firstly, the plaintiff’s evidence about the onset of neck pain and symptoms such as headaches, pain travelling down the left arm and sensory changes affecting his left hand; secondly, the frequency with which these symptoms were said to have occurred following the transport accident; thirdly, the claim made at hearing that symptoms consistent with a likely neck injury had been present since the transport accident; and, fourthly the claim that, despite the absence of records referring to these symptoms, the plaintiff had in fact told Dr Koh (“probably every time that we saw him”) about symptoms involving neck pain, headaches, pain through his back and into his legs, about the presence of “continuous” pins and needles in his fingers and about cramping in his hand.[27]
[27] TN 39-42 and TN 71-72
62 This is not a case where it could be said of the plaintiff that he was given to embellishment, exaggeration or for that matter selectivity. Rather, he presented as a somewhat taciturn yet earnest witness, of whom in March 2009 psychiatrist, Dr Serry, relevantly observed his psychological reaction was: “coloured by his stoic and somewhat uncomplaining nature.”[28]
[28] PCB 99
63 None of the doctors have questioned the genuineness of the plaintiff. Some, however, have questioned, in my view with good cause, his ability to provide a full and accurate history. Whilst, formal testing has found the plaintiff’s memory intact, I could not exclude the possibility that the deficits otherwise attributable to the closed head injury have and continue to contribute to this problem.
64 As to the extent to which, in this case, the clinical notes provide a more reliable record than memory alone, I make the following observations.
65 Typically clinical notes are brief. I have not assumed they represent a full or necessarily accurate record of what transpired during consultations that took place many years ago. However, the isolated nature of the complaints recorded by treating health professionals, the absence of any further investigation of the plaintiff’s spine ordered by Dr Koh, Dr Khan or by any other general practitioner consulted by the plaintiff before 19 October 2012 and, the absence of any recorded complaint about the plaintiff’s neck to physiotherapist, Mr Sternfeld, are at odds with the plaintiff’s insistence at hearing that he recalled complaint to Dr Koh about symptoms the doctor failed to record or investigate on multiple occasions.
66 I concluded the plaintiff’s evidence (and to the extent his wife’s evidence could be said to corroborate this) about complaints made during medical consultations many years earlier was largely based on reconstruction. That said, I proceeded on the basis that the clinical notes made by the treating general practitioners and the physiotherapist represent only part of the evidence of what occurred in the interval between the transport accident and the investigation of a potentially unresolved injury to the cervical spine.
67 In short, the TAC was right to challenge the plausibility of evidence at hearing that ran contrary to the records made. Nevertheless, as my summary of the available evidence shows, the principle vice in this case was probably a lack of timely or consistent complaint about symptoms, which may have alerted particularly treating doctors to the possibility of other causes for pain and disability, compounded by a tendency to reconstruction.
68 Ultimately, analysis of the evidence as a whole led me to the view that a combination of factors summarised below likely contributed to the long delay in investigating potential neck injury as an alternative source of pain and disability:
· the generalised nature of the complaints made by an individual, who was not given to complaining;
· the early and understandable focus on and treatment of the left shoulder injury, which has never fully resolved;
· the progressive nature of the injury to the cervical spine, which helps account for the complaint that pain and symptoms have worsened.
69 It is convenient to commence with discussion of the evidence of causation of the revealed pathology in the cervical spine.
The cervical spine - causation
Pre-accident
70 Save for suffering “modest neck pain” throughout his life for which he required physiotherapy, rib pain which required a hospital attendance and some knee pain, the plaintiff deposes he enjoyed good general health before the transport accident as well as an ability to engage in an unrestricted range of social, domestic, recreational, sporting and work activities.[29]
[29] PCB 5
71 Some of the clinical notes tendered evidence earlier isolated attendances for treatment of thoracic/neck pain. For instance, the plaintiff was treated with feldene for thoracic pain and muscle spasm with reduction in the range of movement of his neck on 1 October 1998. On review on 5 October 1998 he complained of neck pain (“++”) and presented with severe muscle spasm in the neck. Treatment this time apparently consisted of medication, analgesics and Ducene and physiotherapy.
72 At hearing the plaintiff had trouble recalling the number of occasions and the circumstances under which he had attended for treatment of neck pain. He thought there was only one occasion, which if true would not explain the suggestion in his affidavit that the modest neck pain referred to before the transport accident had been experienced throughout his life.
73 Under cross-examination the plaintiff gave confusing and conflicting evidence which left me with the impression that he had little if any reliable recollection of these matters. Based on the episodes documented, the point to be made at this juncture is that there were probably a number of instances of complaint of symptoms of neck pain/spasm occurring in 1998 and 2001 without evidence that these had required ongoing treatment. Essentially, the evidence did not gainsay the claim that the plaintiff’s neck had been asymptomatic before the transport accident.
Post-accident
74 As mentioned, further investigation of the plaintiff’s spine as a potential additional cause of pain and disability, only commenced after Dr Barson took a history and examined the plaintiff in the October 2012 in respect to injury sustained in the transport accident.
75 This is not to deny repeated references to neck injury and various symptoms now linked to injury to the cervical spine to some medico-legal experts before and since October 2012. Extracts from their reports are summarised in the following paragraphs.
76 Orthopaedic surgeon, Mr Moran assessed the injuries sustained in the transport accident at the request of the plaintiff’s solicitors on 24 October 2007, 4 October 2012, 8 May 2013 and 11 November 2015.[30]
[30] PCB 80-94
77 The first report records the plaintiff was initially concerned about neck pain and bilateral elbow pain. The plaintiff apparently reported referral to physiotherapy but with the passage of time left shoulder pain had become and remained his dominant concern. Clinical examination on that occasion demonstrated restriction in movements of the left shoulder but none in the neck.
78 Mr Moran diagnosed soft tissue injuries to the shoulder and neck. He emphasised the significance of the left shoulder injury given the plaintiff is left handed. That remains a relevant concern.
79 Notably, Mr Moran did not exclude the possibility that the plaintiff’s neck injury continued to contribute to pain and symptoms when he said: “At present, it is difficult to define the exact source of his pain. There is an element of pain arising from the A-C joint, and from unresolved rotator cuff impingement, but in addition, I suspect that there is an element of his pain referred from the neck”.[31]
[31] PCB 82
80 Re-examination on 4 October 2012 again revealed left shoulder pain as the dominant concern. The plaintiff apparently reported deterioration in neck pain and noted onset of thoracic and lumbar back pain. As this had not been mentioned during the 2007 examination, Mr Moran rejected any causal relationship between thoracic and lumbar back pain and the transport accident.
81 On examination of the plaintiff’s neck Mr Moran found painful restriction of extension and right lateral flexion in particular, although forward flexion and rotation was, he said, well preserved. Notably, in this report Mr Moran continues to implicate neck injury as a potential source of the shoulder pain reported:[32]
… The left shoulder and neck took the brunt of the second impact on the roadway, and he has been left with neck pain and left shoulder pain and stiffness, which to date has not responded to appropriate conservative and surgical management.
At this stage, it is difficult to find the source of Mr Lock’s shoulder pain, but it does have characteristics of mechanical rather than neurogenic pain, and given the mechanism of injury described by Mr Lock, I suspect that much of the pain arises as the result of a compression injury to the glenohumeral joint, …
[32] PCB 86
82 Later reports made following re-examination on 8 May 2013 and 11 November 2015 continue in the same vein, with the plaintiff indicating concern about neck, lower back and left shoulder pain. Notably, by 8 May 2013, the outcome of MRI investigation of the cervical spine and of the referral to Mr Rogers (for “persistent and severe neck pain” [33]) was known by Mr Moran. He noted:[34]
[33] PCB 89
[34] PCB 90
Neck pain has been a persistent and unremitting symptom, with evidence of progressive degenerative change of the C5/6 segment. It is not clear whether pain extending to the left arm arises primarily from the shoulder joint, which I suspect it does, or from the cervical spine. Certainly intermittent symptoms of paraesthesia and numbness on the ulnar side of the hand and fingers is typical of cervical nerve root irritation.
It is neck pain, and left shoulder pain which predominantly limit his ability to return to his previous employment.
…
Neck surgery is not indicated at this stage but may be an issue in the future should he develop more significant and persistent symptoms of brachalgia.
83 The final examination took place nearly a year after the plaintiff underwent further surgery to the left shoulder. On this occasion, the plaintiff continued to report neck pain with: “pain radiating to the upper limbs, particularly to the left arm, with symptoms here provoked particularly by driving, and by sustained downward gaze”.[35] Apparently examination revealed moderate stiffness of the neck and back, particularly in extension without clinical evidence of overt motor or sensory impairment in the upper or lower limbs. Notably, Mr Moran’s report provides some support for the proposal for surgical management of the plaintiff’s cervical spine condition (“this may well be necessary, given that he will experience accelerated degenerative change in the C5/6 segment which ultimately may force him to seek surgical relief”[36])
[35] PCB 93
[36] PCB 94
84 Dr Serry conducted a number of psychiatric assessments at the request of the plaintiff’s solicitors, on 31 March 2009, 15 May 2012 and 12 October 2015 respectively. The reports submitted relevantly record complaint of intermittent neck pain, headaches and a bloodshot eye.[37] During the first psychological assessment the plaintiff recalled an initial examination for pain in his left shoulder and arm and in his neck and back. Among other things, the plaintiff reported:[38]
… problems with the left shoulder with pain, reduced movement and reduced power in the arm. He has intermittent neck and low back pain with the latter at times extending into the left leg.
Your client also experiences a number of headaches and he has noted that his left eye becomes intermittently bloodshot, something that has been present ever since the accident.
[37] PCB 95-116
[38] PCB 96
85 Following re-assessment, on 15 May 2012, Dr Serry advised:[39]
Since the time of my previous assessment, your client has continued to experience pain, in particular in the left shoulder. The pain is relatively constant but the severity fluctuates. He is able to move the left shoulder but movements are painful. He also experiences neck and back pain and he stated that the low back pain extending to both buttocks and both leagues although this fluctuates.
Your client has ongoing headaches and he stated that his left eye becomes bloodshot, more often than not.
[39] PCB 103
86 On further assessment, on 12 October 2015, Dr Serry recorded complaint of intermittent neck and mid-back pain and less frequent low back pain extending into his legs.[40]
[40] PCB 110
87 Ms Mullay’s first neuropsychological assessment on 19 October 2010 is an occasion on which the history taken does not mention neck injury resulting from the transport accident. The plaintiff did, however, report significant pain (he was in pain 24 hours a day) from the left shoulder injury, frequent headaches and a bloodshot left eye.[41]
[41] Exhibit P2, 46-47
88 Professor Stark’s examination of the plaintiff on 29 November 2010 represents another occasion on which no direct history of neck injury is recorded (“The main injury was to his left shoulder region but there was also bruising of the left knee and left arm.…”[42]). This probably explains the absence of any clinical examination of the cervical spine. However, it appears that, among the symptoms reported the plaintiff also complained of: [43]
[42] PCB 117
[43] PCB 118
· left hand numbness from time to time (“perhaps especially the ulnar two digits radiating to the medial aspect of the elbow. He tends to move his hand about to try to clear this symptom. It is only intermittent and does not occur in any particular situation”).
· Headaches which were present most of the time (“These are mainly in the right temporal region at present but he thinks they can be more widespread at other times. He has tried Panadol and Mersyndol but these don’t seem to help.…”).
· A bloodshot left eye, sometimes.
· His neck, back, hips and shoulders seizing up. He attended a chiropractor regularly every couple of weeks and found manipulation helped.
89 At hearing the plaintiff could not recall when he first consulted a chiropractor. Indeed, when pressed it was clear that the plaintiff had problems distinguishing this form of treatment from physiotherapy treatment.
90 Under further cross-examination, whilst the plaintiff agreed that in November 2010 his neck, back, hips (the plaintiff later said his butt cheeks not his hips were the problem) and shoulders seemed to seize up, he at first denied he was attending a chiropractor for treatment at the time. Rather, the plaintiff recalled seeing a person who performed massage (“He was big enough to cause my manipulation and stretching”[44]). The plaintiff had not, he said, submitted these expenses for payment by the TAC because the TAC had by then refused to pay for any further treatment by a physiotherapist or chiropractor.
[44] TN 44
91 The plaintiff agreed this treatment could have commenced after the second transport accident, although as later answers show, chiropractic treatment probably commenced from about February 2009.
92 The plaintiff was taken to paragraph 20 of his first affidavit where he discusses his treatment regime in respect of his left shoulder condition in July 2011. Among other things, the plaintiff deposes he consulted a chiropractor in Mooroolbark: “every couple of weeks as needed”.[45]
[45] PCB 9
93 At hearing, the plaintiff identified the chiropractor as “Pauline” whom he had first consulted a week after the bushfires on 7 February 2009. Evidently this chiropractor manipulated “various parts”[46] of the plaintiff’s body. Her fees, the plaintiff said, were paid by the bushfire fund, although he denied having made a claim against the fund. Further questioning revealed that the plaintiff has been a member of the SES since about 2005, without, he said, any active role in fighting the bushfires.
[46] TN 47
94 As I understood the evidence, having likely commenced seeing a chiropractor, some months before the second transport accident, the plaintiff was still seeing her when examined by Professor Stark in November 2010.
95 The point to be made at this juncture is that in November 2010 Professor Stark did not review any radiology and had not obtained a history of neck injury when he concluded: firstly, that the weakness affecting the plaintiff’s left upper limb was probably attributable to the effects of orthopaedic injury rather than nerve injury and, secondly, that absent clinical signs of sensory loss or weakness in the distribution of the nerve, the numbness reported could be caused by some intermittent irritation of the left ulnar nerve at the elbow.
96 Orthopaedic surgeon Mr Fogarty provided an impairment assessment to the TAC following assessment on 8 November 2011. The history taken does not specifically mention neck injury (possible head injury, soft tissue injury to the left shoulder, bruising to the left knee and some pain extending into the left arm).[47] Mr Fogarty was, nonetheless, cognisant of the results of the earliest x-ray of the cervical spine following the transport accident.
[47] PCB 165B
97 Notably, the record made of the plaintiff’s current complaints indicates he reported:
· ongoing daily headaches for which he took Mersyndol tablets. The plaintiff said pain, which I understood referenced these headaches, had stopped him from working on a couple of occasions.
· Pain at the front and into the left upper arm, which the plaintiff reported was there all the time, with clicking from the shoulder sometimes. The plaintiff reported tingling and pins and needles from time to time in the little, ring and long fingers of the left hand which he complained stopped him from using this hand occasionally.
98 Mr Fogarty diagnosed possible head injury; soft tissue injury to the left shoulder causing tendinopathy particularly in the supraspinatus part of the rotator cuff and subsequent sub-acromial bursitis at the left shoulder; bruising at the left knee which quickly resolved; and probable soft tissue injury to the “neck spine”.[48]
[48] PCB 165D
99 When re-examination took place on 17 December 2013, Mr Fogarty reviewed the MRI results for the left shoulder in March 2012 and for the cervical spine in March 2013.
100 Notably, on this occasion, Mr Fogarty directly linked the pathology found in the plaintiff’s neck to the transport accident by indicating the plaintiff had suffered “probable” soft tissue injury to the neck-spine causing aggravation of pre-existing degenerative disc disease at the C5/6 level with protrusion of intra-vertebral disc at this level.[49]
[49] PCB 165J
101 Mr Fogarty placed particular reliance on the absence of strong clinical evidence of radicular type pain when, in September 2014, he indicated he was not satisfied the plaintiff would benefit from the surgery recommended.
102 Occupational physician, Dr Sillcock, examined the plaintiff at the request of the plaintiff’s solicitors on 2 August 2012. The history recorded only mentions injury to the left shoulder and eye. The plaintiff complained the condition of his left shoulder had worsened (“It aches and … it stays sore longer”[50]). He also complained of pain sometimes radiating up to his neck and down his back to his legs and of sometimes severe pins and needles in the lateral two fingers of the left hand.
[50] DCB 65
103 Each side focussed on different aspects of Dr Sillcock’s report. The plaintiff relied on the symptoms of pain and sensory disturbance reported as well as clinical evidence of reduced sensation to pinprick over the lateral three fingers of the left hand in the distribution of the ulnar nerve.
104 The TAC relied on Dr Sillcock’s report that the plaintiff’s back and neck were not tender and he had demonstrated a normal range of movement.
105 In summary, more than eight years passed before further investigation of the cervical spine as a potential source of pain and symptoms was initiated in late 2012. However, some but not all of the medico-legal specialists who assessed the plaintiff between October 2007 and October 2012 obtained histories and/or recorded complaint of symptoms and/or made clinical findings supportive of the plaintiff’s claim that the transport accident had likely aggravated pre-existing asymptomatic degenerative disease at the C5/6 level and was causally linked to the pathology revealed by MRI imaging in March 2013.
106 When, on 19 October 2012, Dr Barson considered the injuries suffered as a result of the transport accident, he concluded a major component of the plaintiff’s neck and shoulder pain was likely due to nerve compression or other neurological injury.
107 The doctor noted, among other things, complaint of very troublesome and often incapacitating headaches. Dr Barson attributed intermittent redness and some visual disturbance of the left eye of which the plaintiff also complained to these headaches. The complaints of tingling in the left middle, ring and little fingers, as well as spasms of the right hand and wrist, were Dr Barson said, supportive of a diagnosis of nerve involvement.
108 Dr Barson also drew attention to the difference between pain localised in the area of the shoulder and pain the plaintiff said was constant (“all day every day”[51]) and extended from the left side of his neck and upper left scapular region to the elbow. The latter pain the doctor described as having a diffuse poorly localised character. He understood this component of pain had not responded to conventional analgesics, narcotics or anti-inflammatory medication. This changed after the plaintiff trialled Lyrica and reported an immediate and sustained reduction in neck and shoulder pain. Pain was further improved when the dosage of this drug was increased.
[51] PCB 44
109 As mentioned, in letters to the plaintiff’s solicitors in December 2012 and February 2013 Dr Barson urged further investigation of the plaintiff’s injuries including MRI investigation of the plaintiff’s cervical and upper thoracic spine and obtaining the opinion of a neurosurgeon. The radiological investigation and the examination by neurosurgeon, Mr Rogers took place in March 2013 and April 2013 respectively.
110 At this juncture I mention sports physician, Dr Wood’s report following examination of the plaintiff at the request of his solicitors on 28 November 2012, primarily because of the results he reported on clinical examination of the plaintiff’s neck.
111 It was not clear to me what, if any, materials were available to him, when Dr Wood examined the plaintiff. He, nonetheless, took a history of injury including neck injury. Dr Wood understood from the plaintiff that neither the shoulder surgery in 2004, nor subsequent treatments including, most recently, a cortisone injection for the shoulder on 5 October 2012, had improved pain.
112 Dr Wood recorded complaint of variable discomfort in the neck, often in the base of the neck, which could refer into the left shoulder and down the arm to the hand; spinal pain down the whole of the spine radiating into the left more than the right hips and some blunting of sensation through the middle, ring and little fingers of the left hand (“Sometimes they can go numb”[52]). The plaintiff again complained of headaches in the treatment of which he occasionally took Mersyndol. On this occasion, the plaintiff indicated the trial of the medication Lyrica may have aided sleep.
[52] PCB 126
113 Notably, clinical examination of the cervical spine had, Dr Wood reported, revealed movements within normal limits, which were essentially pain free. I did not understand this to indicate they were entirely pain free. He did, nonetheless, find evidence of very mild sensory blunting through the middle, ring and little fingers of the left hand.
114 The TAC made much of the variable clinical results obtained when and if doctors examined the plaintiff’s cervical spine. The observations I make at this stage are threefold. Firstly, the plaintiff was examined by two orthopaedic surgeons, Mr Moran and Mr Fogarty in the years before and since the MRI investigation. Each specialist continues to implicate neck injury as a cause of symptoms. Secondly, in October 2012 Mr Moran’s clinical findings and the general practitioner’s careful analysis of the plaintiff’s history and presentation provide strong support for the claim that the plaintiff’s neck condition had progressively worsened before it was investigated separately. Lastly, the pathology revealed by MRI imaging a few months later, provides a strong basis for accepting that the cervical spine was causing pain and disability, notwithstanding the clinical results reported by say Dr Sillcock and Dr Wood.
Cervical spine – initial opinion obtained in 2013
115 Mr Brownbill’s examination of the plaintiff on 3 April 2013 was directed to assessment of neck injury attributable to the transport accident. On this occasion the plaintiff reported symptoms involving left shoulder pain (“present all the time with fluctuations”[53]); numbness affecting the inner three fingers of the left hand, which came and went; intermittent local pain in the left wrist associated with the wrist locking; occasional headaches helped by the plaintiff’s use of Lyrica; and a bloodshot left eye, most of the time.
[53] PCB 132
116 Assisted by his wife, the plaintiff provided the following responses to direct questions posed by the specialist:[54]
… “there has been regularly pain at the back. It can go into the back of the head. There has also been pain shooting down the left arm. I think I got the neck pain at the time of the accident and it has continued, just the severity has changed”. He added “I don’t know when the pain started shooting into the arm”. Also “I have difficulty remembering when soreness is or when it started or details about it”. His wife added “the neck pain and arm pain started at the time of the accident and has gradually become worse”.
[54] PCB 133
117 Having examined the plaintiff and reviewed the MRI images obtained in March 2013, Mr Brownbill’s opinion on causation and the likely nature of the injury to the cervical spine is contained in the following statements:[55]
Examination on the 3rd April 2013 has shown some restriction of cervical spine movements. There was no objective neurological abnormality of the cranial nerves or the peripheral nervous system in upper or lower limbs. There were no signs of radiculopathy or myelopathy.
Radiological investigation has shown a single level C5-6 cervical intervertebral disc derangement with posterior protrusion contacting the spinal cord. On the information provided on probability, neck pain commenced following the described motor accident with continuation since then with fluctuations but gradual increase in with associated pain radiating down the let (sic) arm. On that information I consider that on probability this man sustained damage to the C5-6 intervertebral disc in that described motor accident which has acted as the basis for a progressive protrusion of that disc.
[55] PCB 135
118 At this juncture, it is convenient to deal with the likely role, if any, of injury to the cervical spine as a result of the second transport accident.
Injury as a result of the second transport accident
119 As previously mentioned, Mr Brownbill’s April 2013 report was the first report in which the maker references the second transport accident. I could find no reference to this accident or whiplash injury in 2009 in any of the reports of the treating doctors. Indeed, the only other specific reference to the second transport accident is found in later medico-legal reports submitted by occupational health and rehabilitation consultant, Dr Middleton in October 2015 and orthopaedic surgeon, Dr Boys in December 2015.
120 These references are contained in the following extracts:[56]
[56] PCB 132 and 151 and DCB 74
By Mr Brownbill -
In 2009 he was driving a car and was involved in a multiple rear end collision. The airbag was deployed “and I got some neck, arm and shoulder pain. All that pain settled down in a few hours and I was back to the same when I was before that accident”.
By Dr Middleton -
Mr Lock was involved in another motor vehicle accident in 2009 where he was driving a customer’s car on the way to work and ran into four stationary cars. The car he was driving had air bags, which deployed; the door of the car needed to be forced open and an ambulance was called, where he was taken to Box Hill Hospital with the diagnosis of a whiplash injury to his cervical spine. Trauma investigations discovered an old cervical spine injury from the original motorbike accident. Treatment was a soft cervical brace for five days, which was removed on review.…
By Dr Boys -
A second motor vehicle accident is described in June 2009. On that occasion Mr Lock was working with Easy Gas as an installer. He describes being the seat belted driver of a motor vehicle. Mr Locke states that he was initiating a lane change when the vehicles in front stopped. He relates impact into the car in front of him in traffic. This gentleman was taken by ambulance to the Box Hill Hospital. He relates exacerbation of neck pain at that time and was off work five days. Mr Locke states that the aggravation experienced at that time resolved. He relates no specific ongoing symptoms of disability specific to the 2009 motor vehicle accident.
121 The description of the circumstances of the second transport accident on each occasion this was recounted to these doctors is adequate. However, as my earlier summary of the evidence has shown, the symptoms of likely whiplash injury at the level of the upper cervical spine probably took a good deal longer than a few hours to settle to the same level as before the second transport accident.
122 Even if my interpretation of the Hospital’s notes is correct and there was further radiological investigation of the cervical spine below the C4 level, the complete absence of evidence of any further specific treatment for symptoms either at the Hospital or from treating doctors, supports the plaintiff’s claim of no lasting sequel from a likely whiplash injury to the cervical spine in July 2009.
123 Importantly, whilst Dr Boys differs from Mr Brownbill and Dr Middleton about the nature of the injury suffered to the cervical spine as a result of the transport accident and postulates that the pathology revealed in 2013 reflects underlying constitutional degenerative changes, each specialist has accepted there was no relevant sequel to the whiplash injury.
124 Needless to say, the plaintiff’s case would have been greatly assisted and a considerable amount of Court time saved if, in the preparation of his case, his solicitors had seen fit to obtain opinion from particularly specialists in neurosurgery and/or orthopaedics, responding to specific questions about the relationship, if any, between injury suffered in the second transport accident and the pathology demonstrated at the C5/6 level.
125 These matters notwithstanding, on the evidence available, I was satisfied there was no lasting sequel from whiplash injury to the upper cervical spine or evidence that the second transport accident had also involved injury to the cervical spine at the C5/6 level.
The cervical spine – treatment and further medical opinion 2013 to date
126 The plaintiff consulted neurosurgeon, Mr Rogers on referral from Dr Barson on 11 April 2013 ostensibly seeking advice on: “the place of surgical intervention for neck and left arm pain and paraesthesia”.[57]
[57] PCB 57
127 Mr Rogers diagnosed left C6 nerve root compression and chronic pain syndrome, the latter, no doubt, informed by the plaintiff’s report that he had suffered left-sided neck pain with radiation into the shoulder and paraesthesia travelling predominantly into the index and middle fingers for several years.
128 As Mr Roger’s brief report dated 13 January 2014, addressed to the plaintiff’s solicitors, shows, having discussed management options for the left arm pain and paraesthesia, the plaintiff indicated a desire to pursue surgery: anterior decompression with interbody fusion surgery.
129 During re-examination the plaintiff recalled advice to the effect that surgery would rectify the pins and needles and numbness affecting his hands and forearm but not the pain.[58] Irrespective of the accuracy of the plaintiff’s recollection of the advice received, the plaintiff has consistently indicated his intention to undergo this surgery. The TAC has so far declined to fund surgery.
[58] TN 78-79
130 A number of specialists have either directly or by implication supported surgery as an option in the further management of the symptoms likely caused by the pathology at the C5/6 level. Others have not.
131 As mentioned, in 2013 and again in 2015 Mr Moran envisaged the possibility of surgery in the future as a response to acceleration of degenerative changes at the C5/6 level.[59] On the other hand, in 2014 Mr Fogarty saw no benefit in surgery. However, as Mr Rogers noted in April 2005 when offered an opportunity to comment on this and other opinions, Mr Fogarty had acknowledged that surgery may have an impact on a number of the symptoms affecting the neck and fingers of which the plaintiff complained.[60]
[59] PCB 90 and 94
[60] PCB 61
132 In a further report submitted following re-examination on 9 July 2014, Mr Brownbill expressed support for the plaintiff’s decision to undergo surgery once this was funded (“Although the exact outcome of the surgical procedure suggested by Mr Rogers cannot be predicted for this man, it is reasonable for that procedure to be offered to him”[61]).
[61] PCB 140
133 Dr Boys’ opinion was obtained by the TAC in November 2015. He diagnosed a minor soft tissue injury to the cervical spine (musculoligamentous) as a result of the transport accident and opined the radiological changes revealed in March 2013 were due to underlying constitutional degenerative changes. His opinions as to the nature of the injury to the neck and any ongoing causal link between the pathology and the transport accident, are not shared by other specialists.
134 True it is, the plaintiff readily acknowledged under cross-examination that he had demonstrated good movement when examined by Dr Boys.[62]
[62] TN 57
135 Nevertheless, during re-examination the plaintiff confirmed the history of sensory disturbance recorded by Dr Boys and explained that numbness affecting his left hand was constant and further that when he performs certain activities such as holding the steering wheel when driving, his right hand also becomes numb.[63]
[63] TN 79-80
136 In his report, Dr Boys asserts there was no evidence available to him that suggested the plaintiff suffered specific aggravation of the C5/6 degenerative condition as a result of the transport accident. I think it clear from this statement that Dr Boys was not prepared to accept the plaintiff’s claim of persistent complaint, absent evidence of complaint to the treating general practitioner.
137 Dr Boys did not, however, have the benefit of the evidence before the Court. As my discussion of this has shown, other evidence records complaint of neck pain, headache and symptoms indicative of sensory disturbance. This evidence provides a good basis for preferring opinions of other specialists, Mr Moran, Mr Fogarty and Dr Brownbill, so far as they relate to the nature of the injury suffered and causation.
138 Interestingly enough, Dr Boys does not reject consideration of surgical intervention where there is evidence of sensory disturbance associated with cervical radiculopathy. He, however, suggests investigation of peripheral compressive neuropathies first. Again, I prefer the majority specialist opinion as to the likely nexus between the revealed pathology and symptoms of sensory disturbance.
139 In summary, on balance the plaintiff has established relevant causation for the purpose of this application.
140 It is convenient to next outline the evidence of the progress of the shoulder injury since the first surgery.
The left shoulder injury – treatment and evidence of ongoing disability
141 Clinical notes and the affidavit material indicate ongoing pain and disability associated with the left shoulder injury subsequent to surgery in late 2004.
142 When last reviewed by treating surgeon Mr Pullen on 11 February 2005 the plaintiff reported pain had returned to its pre-surgery level. Mr Pullen concluded left shoulder sub-acromial bursitis had not entirely resolved. He administered a cortisone injection into the sub-acromial space. The plaintiff did not return for further treatment.
143 The plaintiff’s evidence was to the effect that he had returned to clerical work subsequent to shoulder surgery but still experienced stiffness in his shoulder and favoured his right upper limb to avoid pain from flexion and reaching movements involving his left shoulder.
144 As we know from evidence already summarised, in February 2005, Dr Koh arranged radiological investigation of headaches and reported memory loss. There was, however, a hiatus of more than a year before the plaintiff sought treatment of symptoms of neck pain and stiffness at the DMDG and within a few days he returned to Dr Koh for treatment of left shoulder symptoms.
145 The plaintiff deposes that in mid-2006, on the advice of Dr Koh he undertook further active exercises with stretching and strengthening of the left shoulder. Dr Koh’s clinical notes for the last attendance on 13 May 2006 confirm this advice.[64] I have already noted the content of the clinical entry for this attendance. Suffice to say it supports the plaintiff’s claim that he relied on his right arm to avoid using his left upper limb and, at that time, treatment included prescription of anti-inflammatory medication, Voltaren Rapid with analgesia was also recommended.
[64] DCB 28
146 Specialist reports for the period commencing from late 2007, to which I have already referred, all involve either examination and/or discussion of the left shoulder injury. This injury was the primary focus of specialist assessment until investigation of the neck injury from early 2013. These reports largely confirm complaint, over many years, of persistent left shoulder pain and disability, significantly restricting this left-handed plaintiff’s ability to perform duties other than those requiring very little physical activity.
147 It seems that in March 2012 general practitioner, Dr Khan initiated further investigation of complaints of persistent pain. The MRI findings reported on 21 March 2012 indicated tendinopathy with small partial thickness deep surface posterior supraspinatus tendon tear, although no problem was noted for the rotator cuff.
148 In his October 2012 affidavit the plaintiff deposes he was referred to orthopaedic surgeon, Mr Donoghue.[65] On 16 July 2012, in addition to referring the plaintiff for ultrasound guided injection into the sub-acromial space, this specialist apparently recommended physiotherapy and pain management treatment. As I understood the evidence, the plaintiff’s pain issues were not resolved by an injection into the sub-acromial bursa on 5 October 2012.
[65] PCB 14
149 The plaintiff deposes he was suffering left shoulder pain on a daily basis, which at times travels down to his left arm and hand. His wife’s affidavit, sworn in January 2013, generally corroborates this claim (“He continues to experience pain, stiffness, tenderness and discomfort in his left shoulder.”[66]).
[66] PCB 22
150 The TAC relies on the absence of evidence of regular use of prescription or any pain relieving medication over many years. The medical reports contain various references to the plaintiff using Mersyndol in the treatment of headaches and/or to aid sleep but no evidence of regular use of anti-inflammatory or pain killing medications until Dr Barson commenced the therapeutic trial of Lyrica in October 2012.
151 That said, affidavit and documentary evidence suggests the plaintiff previously reported significant levels of pain which he tolerated rather than take medications he said had not relieved this pain.[67] I note that, Dr Barson understood other medications had failed to relieve pain, before deciding to trial Lyrica.
[67] Exhibit P2, 46
152 Accordingly, I did not view this as a case where a pattern of non-use of pain relieving and/or anti-inflammatory medication before Dr Barson trialled Lyrica in October 2012 supported an inference of no or only minimal pain.
153 In October 2015 the plaintiff swore that he regularly used Lyrica for pain relief, the dosage of which the doctor had gradually increased to 600 mgs per day.[68] During re-examination the plaintiff said his current medication regime comprises Lyrica (600 mgs daily) and a further medication, Endep 25.[69] The plaintiff said these medications eased neck pain and, if for any reason he failed to take medication, neck pain could increase to 8 or 9/10.
[68] PCB 20
[69] TN 76
154 The TAC sought to make much of the plaintiff’s evidence during cross-examination that Dr Barson had prescribed Lyrica for headaches.[70] I was, nonetheless, satisfied that Lyrica was and continues to be prescribed in the treatment of neck and shoulder pain and headaches. Apart from the plaintiff’s evidence about pain management, the extracts tendered from Dr Barson’s clinical notes for November and December 2012 support this finding.[71]
[70] TN 54
[71] Exhibit P3, DCB 11
155 It seems that further injections in July 2013 and October 2013 also failed to provide lasting relief from pain and symptoms affecting the plaintiff’s left shoulder.
156 In August 2014, plaintiff was referred to another specialist in shoulder surgery, orthopaedic surgeon, Mr Moaveni. He suspected the AC joint was contributing to ongoing shoulder pain. On 22 August 2014, the plaintiff underwent further radiological investigations involving MRI scans of the shoulder as well as x-rays of the left shoulder and elbow and x-ray and ultrasound of the right shoulder. On the same date, the plaintiff underwent a guided injection into the left acromioclavicular joint.
157 It appears that the ultrasound of the right shoulder revealed some underlying pathology, which likely accounts for the plaintiff’s complaint that this shoulder has become symptomatic due to compensatory overuse.
158 According to the surgeon, the results of the x-ray and MRI investigation of the left shoulder were suggestive of AC joint arthritis. His report further suggests that, whilst the initial response to the injection had been good, this outcome was not clinically relevant. Surgical intervention was discussed and, as earlier mentioned, on 17 December 2014 the plaintiff underwent left shoulder arthroscopy and synovectomy, arthroscopic bursectomy and AC joint excision with ostectomy of the lateral clavicle.[72]
[72] PCB 66
159 The report from physiotherapist, Mr de Soysa, indicates that rehabilitation has involved physiotherapy, electrotherapy, hydrotherapy and gym work.[73] It appears that, whilst the treatment has concentrated on the left shoulder, the physiotherapist has also treated the cervical spine and right shoulder symptoms.
[73] PCB 48-49
160 As at the date of hearing, the plaintiff said he was still attending for physiotherapy.
161 In reports submitted between 14 April 2015 and 14 January 2016, Mr Moaveni describes the progress made by the plaintiff up to and including the date on which he last reviewed the plaintiff’s left shoulder on 4 November 2015.
162 These reports confirm that, when reviewed on 20 January 2015 and 1 April 2015, pain and the range of function of the left shoulder was improved. However, on 29 July 2015 the plaintiff reported recurrence of some symptoms with tenderness over the AC joint, as well as headaches and neck pain.
163 When next reviewed on 28 October 2015 the plaintiff reported ongoing pain. CT scans were arranged.
164 When reviewed on 4 November 2015, among other things the surgeon noted significant improvement in the plaintiff’s shoulder symptoms. Other than discussion of further review of the right shoulder condition, Mr Moaveni foresaw no further need for review or treatment of the left shoulder (“His shoulder symptoms have also significantly improved. No further action is required at the present time” and “at last review, Mr Lock has recurrence of pain in his left shoulder which settled with observation”[74]).
[74] PCB 78-79
165 The treating surgeon’s report on his patient’s long-term capacity for work, nevertheless, indicates that in this surgeon’s opinion, the plaintiff has been left with long-term functional deficits due to the injury to his left shoulder. For instance, in response to specific questioning about the plaintiff’s capacity for work, Mr Moaveni predicted that currently and in the future pulling, pushing, lifting, repetitive action and overhead work with the left arm will exacerbate the plaintiff’s shoulder discomfort. I infer from this evidence, that these limitations will also affect the plaintiff’s capacity to perform similar activities in other areas of his life.
166 In October 2015 the plaintiff swore he had recovered from the surgical procedure but had been left with significant deficits relating to pain and function which he described in the following terms:[75]
7.… There remains a clear loss of strength function and mobility in the left shoulder joint. I have fairly good movement raising my left arm forward of my body and also to the side of my body although the greater the range of movement the greater the pain which I suffer. I have a poor range of movement in terms of my ability to move my arm at the rear of my body. For me what is of greater importance is the loss of strength and the shoulder joint despite the extensive treatment which has now been undertaken with respect to my shoulder injuries. This is a particular concern to me because I am left hand dominant and therefore particularly rely on the use of my left upper limb for the performance of a wide variety of domestic and other chores.
[75] PCB 18 and 20
167 At hearing, in response to specific questioning during re-examination, the plaintiff revealed that pain/soreness levels affecting his left shoulder ranged from 30% up to 80 or 90% of that experienced pre-surgery.[76]
[76] TN 84-85
168 The plaintiff accepted further surgery had led to improvement and agreed he now had full movement of the left shoulder. He, nonetheless, contested the TAC’s interpretation of Mr Moaveni’s reports as meaning that pain in the left shoulder was resolved by the time of Mr Moaveni’s last review in November 2015 (“I was getting pain in my shoulder and constant pain in the joint” and “..it is constantly tender and I get – I can get shooting pains into my arm and shoulder” and, since the second surgery: “It can be sharper pain but it is not a constant pain” and “When I do get the sharp pains I have to stop doing what I am doing” and “It can be every day driving” and “Trying to move things around, slide a chair in and out at the table. I can get pain. Reaching up my back, trying to scatch my back” and, at hearing: “I have got a pain through my shoulder and arm that is slowly getting worse, getting stronger as I sit down”[77]).
[77] TN 86-88
169 The evidence of the plaintiff and the surgeon in this regard is difficult to reconcile. However, a number of factors have allowed me to accept that the plaintiff’s complaint of ongoing pain, not necessarily constant pain involving the left shoulder injury, is credible.
170 Firstly, I have accepted the plaintiff is not given to complaining or exaggerating symptoms.
171 Secondly, whilst the accounts of left shoulder pain given to specialists in October and November 2015 varied (“It is now slowly increasing again”;[78] and “surgery, which has resolved most of the left shoulder pain, which the pain occasionally recurs;”[79] and “significant improvement in his clinical picture;”[80] and “does describe discomfort in the left shoulder. He experiences left anterior shoulder pain extending to the deltoid. Discomfort is experienced on a daily basis with elevated use of the arms such as driving…. He relates a degree of discomfort if overhead use of the left arm is sustained or with pushing or pulling activities..”[81]) the reports made suggest ongoing complaint of left shoulder pain, particularly when performing certain activities.
[78] Mr Brownbill, PCB 144
[79] Dr Middleton, PCB 152
[80] Mr Moran, PCB 93
[81] Dr Boys, DCB 75
172 Thirdly, the plaintiff is still undergoing physiotherapy treatment. On 28 October 2015 Mr de Soysa envisaged this treatment could continue for at least another 4 months.
173 Lastly, and this was something the physiotherapist also noted, the strong medication taken by the plaintiff probably does, as claimed, mask pain and symptoms affecting the neck and left arm. As already mentioned, the plaintiff reported a significant increase in his symptoms and pain if for any reason he missed taking medication.
174 All of the specialists who have commented on the left shoulder injury since surgery, have found ongoing disability. Mr Moran describes a mechanical injury to the left shoulder. In terms of its effect on his daily activities, he appears to have understood that the plaintiff managed the shoulder injury so long as he avoided sudden unguarded movements of the left arm and lifting or working with his arms elevated for more than short periods.
175 Mr Moran is one of a number of specialists who have accepted that compensatory use of the right arm for most activities has progressively caused problems with this shoulder. Relevantly, Mr Moran recommended long-term follow-up as, in his opinion, the plaintiff was at risk of developing more extensive rotator cuff pathology, including an increased risk of attrition rupture of the rotator cuff mechanism in both shoulders.
176 Mr Moran’s concern that if in the future the plaintiff lost his employment as a truck driver he would not cope with employment requiring manual handling, no doubt, applies equally to both the neck and left shoulder conditions.
177 A specialist in occupational health and rehabilitation medicine, Dr Middleton’s opinion is important. Among other things, it provides expert support for the claim that ongoing impairment due to injury to the dominant left arm and to the plaintiff’s cervical spine contribute to an inability to return to work as a mechanic.
Pain and Suffering Consequences
178 I now turn to consider the pain and suffering and loss of enjoyment of life consequence of each injury.
179 As the Court of Appeal has explained in Hayden EngineeringPty Ltdv McKinnon,[82] the pain and suffering consequence encompasses both the plaintiff’s experience of pain and the disabling effect of pain on his physical capabilities (including his capacity for work) and enjoyment of life.
[82] [2010] VSCA 69 [9]-[17]
180 I do not propose to repeat those parts of the affidavit or oral evidence already summarised, where this evidence indicates ongoing pain and disability or treatment for both injuries. Suffice to say that the plaintiff’s evidence in this regard is generally corroborated by his wife. Among other things, she deposes that the plaintiff displays restricted and painful neck movements and, despite extensive treatment of the shoulder condition, in her words: “there remains a good deal of pain and dysfunction”.[83]
[83] PCB 25 and 26
181 I have already explained the factors which helped persuade me that the plaintiff’s complaint of ongoing shoulder pain was probably genuine. In all, the revealed pathology and the use of strong pain killing medications supports a finding that, as claimed, the plaintiff suffers chronic and intrusive levels of pain due to both injuries.
182 This does not mean that the contribution from each injury to pain levels and disability is equal or that the injuries necessarily contribute to the same consequences.
183 In his final affidavit the plaintiff describes constant but variable levels of neck pain extending “through” his left upper limb and into the fingers of his left hand. He deposes sudden movements of his neck can cause a “sharp increase in pain”.[84] I have already mentioned the plaintiff’s evidence that neck pain could increase to 8 or 9/10 if he failed to take his medication. At hearing he reiterated he suffered neck pain at the back of the neck (“It Can be every day”[85]) and shooting pain down the left arm (“Depending on what I’ve done. I might not have moved it – might not have gotten it for a week”[86]). The plaintiff said activities such as rising from a chair, using the ride-on mower and activities that require sustained use of the arm lead to pain. This evidence suggests injury to the cervical spine is a major component of the plaintiff’s pain experience.
[84] PCB 21
[85] TN 81
[86] Ibid
184 In reaching this conclusion, I made allowance for the evidence of arm pain including shooting pain, of likely sensory disturbance affecting some of the fingers of the left hand and of headaches (which are more severe if the plaintiff’s neck is really stiff but less frequent since he commenced taking Lyrica).
185 The evidence regarding the left shoulder indicates improvement following surgery in both function and pain levels, although the various activities involving use of the left upper limb and described in affidavit and oral evidence continue to produce pain and the plaintiff now believes shoulder pain is worsening. If, as I suspect, the plaintiff does not readily differentiate between arm and shoulder pain, the overall picture is of not insignificant levels of pain affecting the left upper limb to which separate injuries likely contribute.
186 In any event, as is the case from time to time in these applications for leave, the plaintiff relied on the evidence of his daily pain experience resulting from each injury, in the management of which he required strong painkilling medication as an indication of a likely very considerable consequence for each injury. This is not to deny that the drug Lyrica may have a greater role in controlling say neck and shooting pain than say pain in the shoulder caused by, say, sustained use of the dominant left upper limb.
187 It is convenient to discuss at the same time the evidence of the disabling effect of pain and of loss of function and how this interfers with employment, domestic, sleep, self-care, social and recreational activities and with the plaintiff’s relationships. I have noted the contribution of pain and impairment due to one injury or the other to the consequence alleged. I have also had regard to the various activities discussed with doctors and recorded in recent medical assessments.
188 In October 2015 the plaintiff deposes as follows:[87]
[87] PCB 20-21
14. In terms of my activities, I find that my left shoulder problems have restricted me in domestic activities such as cleaning the house including vacuuming and sweeping, hanging out washing, using a hand mower to mow lawns and generally assisting with house maintenance. My wife and three daughters who are living at home assist with all of these tasks. I have been regularly using a pain relieving medication Lyrica (taken at a dosage of 600mgs per day which has been gradually increased over a period of time). I also continue to use hot showers and heat packs to try and provide some relief for my shoulder symptoms, although as I say the surgery has helped provide some relief in the level of those symptoms. I have to cut some of the firewood for the winter supply to warm the house although I do use an hydraulic splitter which takes a good deal out of the work, as does regular assistance from my children and their friends.
15. I am a mechanic by trade and qualified to undertake all of the maintenance on the vehicles which I operate in my business but find it painful to undertake such maintenance and numerous of the items of maintenance including adjusting the brakes, changing of wheels and the like have to be undertaken by others now. I used to enjoy riding my horse, a 9 year old mare, but since the most recent bout of shoulder surgery have not been able to recommence riding. I used to be involved in the maintenance of our horses but now we have to employ a farrier into do that. Our outdoor activities such as camping have been severely disrupted and I have not returned to camping since the most recent procedure. I used to enjoy 4WD driving but have not been able to engage in that activity for some years. I cannot engage in social, recreational activities with the kids such as have a kick of football and the like.
16. … That injury (the neck injury) likewise impacts upon my capacity to engage in the activities to which I have referred … I am concerned that the failure to provide adequate treatment for my neck will leave me suffering on an ongoing basis into the future.
189 In October 2015, his wife deposes as follows:[88]
10. … He has been favouring his left shoulder for years and now has symptoms affecting his right shoulder as well and is due for radiological examination upon that part of his body in the near future.
11. By reason of his neck and shoulder condition the Plaintiff has struggled over many years to undertake a full range of family and domestic activities. I and our daughters have to undertake the bulk of cleaning and maintenance around the house. There is wood chopping to be done and that is mostly left to the daughters and friends who come over although we do have a hydraulic splitter. The Plaintiff continues to run his owner driver business but he complains of neck and shoulder pain at the end of the day’s work. He is qualified as a mechanic but by reason of his injuries is limited in the repairs and maintenance which he can undertake to the vehicles operated in the business. The Plaintiff’s capacity to participate in activities which we enjoy as a family, for example, 4WD driving and outdoor camping, has been severely limited to the point of non-existence. The Plaintiff’s ability to engage in sporting and recreational activities with the children has also been severely limited to a point of non-existence. I have also found that the Plaintiff’s pain leaves him moody and short-tempered and this has affected the quality of our relationship and also his relationship with the children.…
[88] PCB 24-27
190 The plaintiff has operated his father’s owner driver business for some years now. Using a forklift or the hydraulic tailgate for loading and unloading apparently allows him to avoid some physical strains, although the plaintiff deposes he still experiences pain and disability when driving, even after installing a steering knob for use with his right hand. He has plans to install an elongated gear stick.
191 It is a significant matter in determining the application for leave in respect to the neck and left shoulder injuries that the plaintiff is left hand dominant and compensatory use of the right upper limb, whether in his work or other activities has likely compromised the condition of his right shoulder. In short, I was satisfied that arm pain and sensory disturbance likely due to the neck injury and pain weakness and functional restrictions due to the shoulder injury are likely causes of this consequence over the long term.
192 Without repeating particularly the specialist evidence, I was satisfied from the evidence as a whole that impairment of each body function likely precludes engagement in employment requiring manual handling and/or heavy lifting activities over the long-term. It follows that, as claimed, impairment of each body function, probably contributes to the loss of opportunity to return to work as a mechanic, should the plaintiff’s employment circumstances alter in the future. This factor assumes greater significance given the plaintiff’s comparatively young age and the long period over which he might expect to be gainfully employed before retirement.
193 It stands to reason that arm pain, particularly shooting pain and sensory disturbance likely due to the neck injury as well as pain, weakness and functional restrictions due to the shoulder injury are likely causes of the range of domestic and non-work consequences alleged.
194 Of course, the surgery contemplated for the neck stands as a consequence of the neck injury only.
195 In their earlier affidavits the plaintiff and his wife gave examples of problems mowing the lawn even with a ride-on mower because the plaintiff relied on his right upper limb to steer the machine or problems, playing cricket, hanging washing, gardening and with general maintenance around their home. The gardening and maintenance issues around the house assume some significance where, as in this case, the plaintiff and his family live on a large property.
196 The plaintiff’s wife also noted her husband’s passion for cars and the time previously spent working in the garage fixing her car before the transport accident.
197 Sleep disturbance due to arm and shoulder pain has been a long-standing complaint.
198 The plaintiff was questioned at hearing about horse riding. It appears that since 2005 the plaintiff has owned and ridden his horse (“possibly once a month”[89]), until a week before the second shoulder surgery in December 2014. The plaintiff said he had not since resumed riding because he no longer has the strength in his arm and shoulder to rein the horse’s head to the left. To my mind this evidence implicates both injuries, because the left arm pain described probably also impacts on the strength of the upper limb.
[89] TN 65
199 Whilst the plaintiff could not remember when this occurred, he agreed that, in order to obtain membership of the SES in 2005 he had demonstrated competence in various activities such as, driving a four-wheel drive motor vehicle, using a chainsaw, trimming and cross cutting felled trees and examining roofs.[90] The plaintiff said he attended two meetings after the bushfires in 2009 and has since remained an “inactive” member.
[90] TN 63
200 The plaintiff indicated that on “maybe” six occasions he had been involved in frontline work and weekly training sessions before he ceased active SES membership because he and his family moved house. On the occasions he performed frontline work, the plaintiff said he dragged branches away, carried ladders and ropes and operated a chainsaw but asked someone else to take over when he became sore. The impression I formed was that the plaintiff was someone who continued to perform many physical activities in the workplace and in other areas of his life, despite their impact on his condition.
201 I infer from the evidence as a whole (irrespective of whether each of these matters were directly addressed in the expert evidence) that pain and restrictions imposed by reason of each injury will likely contribute to the relevant consequences alleged for the long-term. In reaching this conclusion I allowed for the possibility that when, and if, the plaintiff undergoes surgery this may improve but not necessarily resolve the arm pain and symptoms referable to the cervical spine.
Conclusions
202 In conclusion, I find that as a result of the transport accident the plaintiff suffered an aggravation injury to his cervical spine, particularly at the C5/6 level and injury to his left shoulder. The pain and impairment consequences of each injury are broadly summarised above.
203 In assessing whether the pain and suffering and loss of enjoyment of life consequence of each injury meets the “very considerable” test, I was required to consider globally all of the pain and suffering experienced by the plaintiff to which each injury materially contributed. I have identified in passing the areas of particular concern for this plaintiff.
204 As earlier mentioned, the test is whether the plaintiff has established that the pain and suffering consequence of injury to his cervical spine and to his left shoulder, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may be fairly described as being more than significant or marked and as being at least very considerable. Essentially the test involves a value judgement in which matters of fact and degree and of impression, all play a role.
205 In summary, I was affirmatively satisfied that each of the injuries caused by the transport accident was serious because at the date of hearing it was fairly described as serious in its pain and suffering and loss of enjoyment of life consequences for this plaintiff and as long-term because the impact, treatment and management of each condition would likely persist for the long-term. In other words, comparison with other cases in the range of possible impairments satisfied me that the consequences so described could be fairly characterised as being more significant or marked and at least very considerable in respect to each body function.
206 I propose to grant the plaintiff’s application for leave.
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