Luangrath v TAC
[2011] VCC 1500
•3 November 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-05269
| KHAMTANH LUANGRATH | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22 and 23 September 2011 |
| DATE OF JUDGMENT: | 3 November 2011 |
| CASE MAY BE CITED AS: | Luangrath v TAC |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1500 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – Section 93 – impairment of right shoulder/cervical spine – psychological reaction.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Riordan with | Nowicki Carbone |
| Mr S Martin | ||
| For the Defendant | Ms J Dixon SC with | Solicitor for the Transport |
| Mr P Gates | Accident Commission | |
| HIS HONOUR: |
1 This is an application brought by Originating Motion dated 6 November 2009, by which the plaintiff applies for leave pursuant to sub-s.93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover for damages from injuries suffered by her arising out of a transport accident which occurred on 24 January 2005 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is under s.93(17):
“(a) serious long-term impairment or loss of a body function”
4 The body functions relied upon by the plaintiff in this application are the right shoulder and referral of symptoms into the neck.
5 The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long-term.
6 The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function.[1]
[1] Richards v Wylie (2000) 1 VR 79
7 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is: Can the injury, when judged by comparison with other cases in a range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129 at [140] to [141]
8 The plaintiff relied on three affidavits, dated 18 February 2008, 3 August 2010 and 15 September 2011. The plaintiff gave evidence and was cross- examined. The plaintiff relied upon an affidavit of her husband, Thao Sopha Luangrath, dated 21 April 2011. An affidavit of a friend, Karole Vong Tong Tip, dated 2 May 2011, was also relied upon. In addition, both parties relied on medical reports and other material which were tendered in evidence. I have read all of the tendered material. Dr Ajaz A Sheriff, general practitioner for the plaintiff, was also called to give evidence and was cross-examined.
9 The defendant showed video surveillance of the plaintiff dated 10 May 2010. A number of the medical practitioners have seen the video and Dr Sheriff was also shown the video. I will comment on the video surveillance during the course of these reasons.
Background
10 The plaintiff was born in Laos in 12 July 1953 and is now fifty-eight years old. She attended primary school education in Laos. In 1973, she was married. The plaintiff gave birth to two daughters, the first in 1974, and the second in 1979. In 1980, the plaintiff migrated to Australia.
11 The plaintiff worked as a sewing machinist and process worker upon arrival to Australia. In 1984, she received a low-back injury when boxes at her place of work fell on her. The plaintiff had a compensation claim arising out of this work accident, but subsequently returned to work. By the year 2000, the plaintiff was on a disability support pension. The basis for the disability support pension was her back injury and depression.
12 On 24 January 2005, whilst a passenger in a vehicle driven by her husband, the plaintiff was injured as a result of a transport accident. The accident occurred when the driver, the plaintiff’s husband, swerved to avoid hitting a kangaroo. The car rolled and the plaintiff was injured.
13 The plaintiff was taken by ambulance to Bendigo Base Hospital from the scene of the accident on the Loddon Valley Highway near Kerang. At the Bendigo Base Hospital, she was x-rayed for chest injuries, pelvic injuries and cervical spine injuries. At the Bendigo Base Hospital, there were no investigations for, on the histories given by plaintiff, complaints in respect of the right shoulder injury at that time.
14 On 14 February 2005, the plaintiff attended her general practitioner, Dr Sheriff. On that occasion, she complained of right shoulder injury and has continued to do so since then to the current time.
The Plaintiff’s Medical Treatment
15 The plaintiff made her first complaint of right shoulder injury to her general practitioner, Dr Sheriff, on 14 February 2005.[3] On 22 March 2005, Dr Sheriff referred the plaintiff to Mr Gardiner for review.
[3] Transcript (”T”) 44
16 It was not until 1 August 2005 that an x-ray was conducted on her right shoulder. The conclusion of the report to the x-ray of the right shoulder was:
“No recent bony injury identified. ? Rotator cuff pathology.”[4]
[4] Plaintiff‘s Court Book (PCB) 37
17 The report suggested an ultrasound of the shoulder would be a method of determining injury to the rotator cuff.
18 On 6 August 2005, the plaintiff was reviewed by Dr Sheriff and then referred to Mr Koadlow for expert opinion and review.[5]
[5] T 51
19 On 23 January 2006, the plaintiff was referred to Mr Mangos for examination and review. Mr Mangos’ report appears at the Plaintiff’s Court Book at page 61.[6]
[6] T 53
20 In February 2006, the plaintiff was referred to Dr Helen Sutcliffe for expert opinion and review.[7] It would seem that the plaintiff did not attend Ms Sutcliffe or Mr Gardiner.
[7] T 54
21 On 1 March 2006, an ultrasound of the right shoulder confirmed that there was a tear in the right supraspinatus tendon described as a full thickness tear.[8]
[8] PCB 38
22 On 17 March 2006, the plaintiff was referred to Mr Alex Stockman, rheumatologist, for treatment and review.[9]
[9] T 54
23 Dr Stockman, having reviewed the plaintiff, decided to treat her by ultrasound- guided right shoulder steroid injection. The first steroid injection was administered on 20 April 2006[10] and the second steroid injection to the plaintiff’s right shoulder was on 4 October 2007.[11] In November 2007, the plaintiff was referred to psychologist, Ramzi Mohammad, for psychological treatment. The treatment consisted of acupuncture and counselling.[12]
[10] PCB 63
[11] PCB 40
[12] PCB 67
24 Dr Sheriff has been treating the plaintiff from February of 2005 until the current time for symptoms in the right shoulder and what he describes as cervicobrachial and right arm pain. In the course of his treatment of the plaintiff, Dr Sheriff has prescribed her with numerous medications, including Celebrex, Ducene, Tramal, Endep, Dosan, Stemetil and Mobic. The plaintiff is currently on Tramal, Endep and Dosan medications to manage her pain and, in part, her psychological reaction to the pain.[13] Dr Sheriff gave evidence that he was concerned about the plaintiff’s dependency upon certain medications and he removed Endep from her regime of medications on past occasions.
[13] T 2 and T 14, L19 and T 100, L25
25 The current regime for treatment is medication and ongoing support counselling from her general practitioner. Due to her cultural and language difficulties, the plaintiff has not availed herself of all the referrals made by her general practitioner and he expressed some frustration at this situation. Dr Sheriff is of the opinion that surgery would not assist Mrs Luangrath with her difficulties in her right shoulder.[14]
[14] T 77
The Medical Opinions
26 The starting point in this case is the radiology evidence. It was reported on 1 March 2006 that the plaintiff had a full thickness tear of the right supraspinatus tendon.[15] This is the physical injury she relies upon for her serious injury application.
[15] PCB 38 and 39
27 Mr Peter Mangos, general surgeon, reported on 3 March 2006. Mr Mangos was of the opinion that the plaintiff had suffered injuries to her neck, her right shoulder and her right hip as a result of the transport accident. He noted:
“In the accident she suffered an injury to the right shoulder and has definite restricted movements of that shoulder with some tenderness. The ultrasound, as you know, reveals a right supraspinatus full thickness tear with no frank impingement.”[16]
[16] PCB 61
28 Mr Mangos identified the precise physical injury to the plaintiff as early as March 2006.
29 Dr Alex Stockman, a rheumatologist, also assessed the plaintiff in April of 2006. He completed a report to the general practitioner, Dr Ajaz Sheriff, on 20 April 2006. Dr Stockman took a history that the plaintiff had previously suffered a lower back injury some nineteen years prior to the accident. He also took a history that she had not been working since 2000 and was looking after her grandson. On examination at that time, he found that the plaintiff’s neck and right shoulder moved in a full range but were associated with pain. He noted the radiology of the ultrasound to the right shoulder as reporting a small full thickness tear of the supraspinatus tendon on the right side.
30 On two occasions, Dr Stockman injected steroid into the right subacromial bursa in an attempted to alleviate the symptoms suffered by the plaintiff. The injection procedures took place on 20 April 2006 and 4 October 2007.[17] Dr Stockman has not seen the plaintiff since October 2007.
[17] PCB 62 and 63
31 Mr Kenneth Myers, general surgeon, assessed the plaintiff for medico-legal purposes. Mr Myers prepared a number of reports, but the most relevant reports, as far as this application is concerned, are dated 30 August 2010, 11 April 2011 and also 16 May 2011. Mr Myers took a history from the plaintiff in August 2010 that she could not comb her hair because of the pain in her right arm and shoulder. He stated that the plaintiff had complained of the pains in her right arm worsening since the first time he had seen her. In that report, he disagreed with the opinion of Dr Dooley, who expressed the view that the prognosis for the plaintiff was excellent. Mr Myers gave the following opinion:
“Problems in the cervical spine and right shoulder result exclusively from
the transport accident.”[18]
[18] PCB 78
32 On 11 April 2011, Mr Myers reported that the plaintiff has had impairment in relation to the right shoulder ever since the accident, with pain and weakness of the arm, particularly with lifting or carrying. She states that pain is present constantly.[19] Mr Myers noted that the plaintiff was sleeping poorly. He stated that all of the disability in the right shoulder resulted from the transport accident in January 2005.[20]
[19] PCB 80
[20] PCB 81
33 Mr Myers expressed his opinion in the following way:
“She will have long term impairment due to the two injuries to the cervical
spine, lumbar spine and right shoulder, each considered separately.”[21]
[21] PCB 82
34 Mr Myers, in his final report on 16 May 2011, found on examination that the plaintiff had a full range of movement of both shoulders but there is pain with the extremes of movement on the right. He took a further history that she was still complaining about sleeping poorly.[22] Mr Myers also noted that he had an opportunity to review the surveillance films for 10 May 2010. He was of the opinion that what was shown of the plaintiff on the films was not inconsistent with his own examination findings and the history that he took from the plaintiff.[23]
[22] PCB 84
[23] PCB 85
35 Mr Stephen Doig, orthopaedic surgeon, also examined the plaintiff for the purposes of medico-legal reporting. He provided two reports dated 24 March 2011. The addendum report simply refers to the DVD surveillance of 10 May 2010. He expressed the view that what he observed on the surveillance films did not change his opinion and that it was consistent with the range of movement that the plaintiff had shown to him in the course of his assessment.
36 In his opinion report, Mr Doig took a history from the plaintiff that she was sore in the right shoulder, the neck and the lower back. The plaintiff complained that her right shoulder was still sore. She stated that she had regained a lot of the range of movement but she continues to have pain with it. She cannot sleep on the right side.[24] Mr Doig examined the plaintiff and found that the right shoulder revealed that there was an audible crepitus in the shoulder, particularly with abduction. His examination revealed that she was tender over the rotator cuff. Mr Doig diagnosed a small full thickness tear of the right supraspinatus tendon. Mr Doig expressed his opinion as follows:
“She continues to have some ongoing problems as far as both the right shoulder and the cervical spine are concerned. She denied troubles with the cervical spine or the right shoulder before this that was significant. I consider it is probable that the accident has caused the problems in her cervical spine and right shoulder.
…
The right shoulder causes her problems with lifting and carrying. She has troubles doing the vacuuming and doing the mopping and in fact has help in order to do that.
I consider the right shoulder will also result in long term impairment related to this accident.
…
The prognosis here is actually fairly guarded. It is likely she is going to continue to have some ongoing pain and discomfort no matter what else is done.”[25]
[24] PCB 87
[25] PCB 88 and 89
37 The application by the plaintiff in this case is not a claim for psychiatric injury. However, the principles in Richards v Wylie[26] are applicable in this case. The plaintiff relies in part upon the opinion of Associate Professor N Paoletti. Professor Paoletti was of the opinion that the depressive order is pre-existing, but aggravated by the accident in question and largely related to the presence of the physical injuries.[27]
[26] (2000) 1 VR 79
[27] PCB 100
38 On the issue of physical injury creating a psychological sequelae, the defendant had the plaintiff examined by Dr David Weissman, consultant psychiatrist. Dr Weissman’s report dated 16 June 2009 sets out his discussion on this issue. Dr Weissman stated:
“As a result of this transport accident, she has suffered from an aggravation of her pre-existing major depression, and she also has symptoms and features of traumatisation (but not full blown Post-Traumatic Stress Disorder).
In other words, the claimant was a vulnerable person pre-transport accident with pre-existing depression. Her emotional state has deteriorated since then.”[28]
[28] DCB 36
39 Mr Brendon Dooley, orthopaedic surgeon, reported on behalf of the defendants on two occasions. The reports are dated 17 June 2009 and 6 June 2011. In his first report, Mr Dooley took the history that the main ongoing complaint by the plaintiff related to her right shoulder. He agrees with the other medical practitioners that the ultrasound of her right shoulder showed a full thickness tear in the supraspinatus tendon of the rotator cuff of her right shoulder. He stated that on examination the plaintiff’s right shoulder revealed tenderness anteriorly.[29]
[29] DCB 48
40 Mr Dooley then diagnosed that the plaintiff suffered a small full thickness tear present in the supraspinatus tendon of her right shoulder. He noted that she did not wish to consider surgery. In his opinion, he found that the plaintiff continued to suffer from aching and that there was some residual minor stiffness in her right shoulder. In his view, the plaintiff’s injuries interfere in only a minor way with her ability to do her housework. He noted that she had been retired from work outside the home for over twenty years. It would be fair to summarise Mr Dooley’s opinion that the consequences for the plaintiff were of a minor nature.[30]
[30] DCB 51
41 Mr Dooley then examined the plaintiff and reported on 6 June 2011. In his opinion, the plaintiff appears to have made an excellent recovery following these injuries and there is now a full range of movement present in her right shoulder with no signs of impingement. He notes, however, that the plaintiff was taking 100 milligrams of Tramal on a daily basis as pain medication. Mr Dooley noted that, in his view, the prognosis for the claimant was that her only ongoing complaint of note is the discomfort and slight weakness affecting her right shoulder joint. He further noted that he believed the plaintiff ought to cease taking Tramal as it is a narcotic opioid drug, to which he thought she may now be addicted. Mr Dooley noted, viewing the surveillance tapes, and agreed with Mr Doig’s opinion of those tapes. He then gave his final opinion that he believed that the plaintiff had only residual minor impairment and ability relating to her right shoulder injury.[31]
[31] DCB 65 and 66
42 The plaintiff’s general practitioner, Dr Sheriff, gave evidence in this case. He also provided a report dated 13 September 2011.[32] I found Dr Sheriff to be an impressive, reliable and accurate witness. I accept his expertise in the treatment of ongoing pain related to physical injury. I also accept that he is a general practitioner who is prepared to use medical and psychological counselling approaches in treating his patient’s symptoms.
[32] PCB 60(a)
43 In his report dated 13 September 2011, Dr Sheriff, in a very summary way, sets out the course and progress of the treatment he has overseen for the plaintiff. In his evidence, he expressed some frustration at the plaintiff’s inability to follow through on some of his referrals to expert medical practitioners. He noted the practical difficulty of the long delays for a person like the plaintiff getting an appointment to see the expert medical practitioners. In his report, he noted that she suffered significant insomnia, both as a result of her injuries and depression. He noted that she had received ultrasound- guided cortisone injections into the affected area of her right shoulder.
44 Dr Sheriff was cross-examined extensively about the history and progress of treatment. I will not recite the full extent of his treatment and referrals in these reasons. I note that, when challenged about the diagnosis or noting of neck pain, Dr Sheriff stated as follows:
“The shoulder is the main pathology I’m referring to, although some of the places have not made comment in fact it is referring to that general pathology.”[33]
[33] T 54, L26-29
45 When he was cross-examined about the depression and insomnia and the effect it was having on the plaintiff, he stated as follows:
“I think looking at the history she has always had the problems from the past. I think the symptoms had sort of worsened I think with this new injury and the new pain.”[34]
[34] T 56, L21-24
46 Dr Sheriff described the plaintiff’s pain levels as follows:
“Quite severe. She is quite in pain. I’ve noted that on several occasions in my notes. She is very restricted in her activities of daily living. She has got poor sleep, related to that pain specifically, and yes, she is in all kinds of bother related to that particular injury.”[35]
[35] T 86, L15-19
47 Dr Sheriff, later on in his evidence, stated as follows:
“When someone who has had poor resolution of symptoms and pain for a protracted period of time, I think the pain is – it just marches on to become a chronic pain syndrome, and then patients have unresolved pain for a period of time. I think it’s fair to say that the pain does become quite global and becomes quite restrictive.
…
Considering that the patient has had a history of depression and that she has had a previous trauma, I think this injury has really set her back even further.”[36]
[36] T 88, L10-20
48 Finally, Dr Sheriff stated in his evidence as follows:
“The point that I see now is a patient who has decompensated further with her depressive state, secondary to the chronic and severe pain that she’s suffering.”[37]
[37] T 91, L4-7
49 In conclusion on the medical opinions in this case, Mr Dooley appears to be the only medical practitioner that is of the opinion that the symptoms and consequences for the plaintiff are minor. The remainder of the medical opinions is supportive of the fact that unfortunately for the plaintiff, she has a long term problem with her right shoulder. The medical practitioners generally accept that her activities of daily living are impacted quite severely by this injury to her shoulder and the pain that she suffers as a result of it. It is clear they accept that she has a good range of movement but, when used, her right arm or shoulder aches and gives her considerable pain. At all times the plaintiff has been taking pain relief medication.
Consequences of the Right Shoulder Injury for the Plaintiff
50 In assessing the consequences of the injuries from the transport accident on 24 January 2005 for the plaintiff, it is to be remembered that prior to that accident she was certified as a disability support pensioner. The basis of her disability support pension was injury to her lower back and her depressive state arising out of her family situation at that time. In considering the consequences of the transport accident for the plaintiff, I take into account that history, but also have to assess what further or new consequences have befallen the plaintiff.
51 I find that the following consequences are properly described as at least very considerable and more than significant or marked.
(a) Pain
52 The plaintiff complains that she now suffers from pain in her right shoulder.[38] She states that she has got more pain in her right shoulder than her back and it gives her difficulty to do things with her right arm.[39] The pain level for the plaintiff is severe. She is supported in that statement by the observations of her general practitioner, Dr Sheriff. In her own words, the plaintiff stated:
“The worst pain I’ve got is on the right shoulder, sometimes it’s shooting
up to the neck and sometimes it go down the arm.[40]
The pain on the left shoulder is less than the right shoulder, and then if the right shoulder or the right arm do a lot of movement, I’ve got very bad pain. I cannot describe the pain, how bad it is.”[41]
[38] T 7, L25-26
[39] T 8, L17-19
[40] T 14, L27-29
[41] T 15, L9-13
53 In re-examination, the plaintiff answered as follows:
“Very bad pain, the pain is there constantly and also is bad and
sometimes it’s mild.”[42]
[42] T 100, L17-20
54 I accept that pain is a significant factor for the plaintiff. The pain is from the original pathology of the right shoulder injury. The plaintiff is a person, on my assessment, who does not exaggerate or enhance her symptoms or condition. I would not describe her as stoical but more correctly as taciturn in presentation. I accept the plaintiff in her evidence in relation to the issue of pain. The pain levels for the plaintiff are a very considerable consequence for her.
(b) Medication
55 The plaintiff is required to take medication to have some ameliorating affect on the level of pain she suffers. The requirement for the plaintiff to continually take medication to manage the symptoms of pain is a very considerable consequence for her. The plaintiff gave evidence that she was currently taking Endep, Tramal and Dosan.[43] Her general practitioner set out the full list of medications that the plaintiff has had over the course of his time of treating her.
(c) Treatment
[43] T 2, L22-23
56 The plaintiff has regularly attended her general practitioner for treatment in respect of her right shoulder injury and associated pain into her right arm and into her neck. The general practitioner, Dr Sheriff, was cross-examined about each of the attendances relating to this injury. On average, the plaintiff would attend her general practitioner approximately once a month for pain related to her right shoulder and associated depression. The necessity for the plaintiff to continue requiring ongoing medical treatment in this way is a very considerable consequence for her.
(d) Sleep
57 The plaintiff had previously suffered from insomnia. The transport accident has exaggerated and made this problem a greater interruption to her normal life. Mr Stockman noted that she was unable to sleep on her right side. Both her general practitioner and the plaintiff gave evidence that her sleep has been further disturbed by the effects of her right shoulder injury. I find that the further and aggravated interruption to the plaintiff’s ability to have normal sleep is a very considerable consequence for her.
(e) Psychiatric Consequences 58 The plaintiff had previously been diagnosed with depression. The two qualified psychiatrists, Paoletti and Weissman, agree that the effect of the transport accident and the subsequent injuries on Mrs Luangrath have aggravated her depressive symptoms. This has resulted in her levels of concentration and ability to function in the normal daily activities of life. The plaintiff is supported in this by the evidence of her general practitioner, who says that she has completely decompensated as a result of the physical pain, which results from the injuries to her right shoulder, neck and, what he describes as, the cervicobrachial pain that she now endures.
59 I find that the further and aggravated state of depression arising from her physical injuries and the pain resulting from it, have a further consequence for the plaintiff. This type of psychiatric injury arising from the physical impact of the injuries is in the nature contemplated by Richards v Wylie.[44]
[44] supra
Conclusion
60 In conclusion, I find that the pain and suffering consequences for the plaintiff, when considered as a whole, are very considerable and more than significant or marked. The conditions and consequences endured by the plaintiff have been continuous for some six years and I accept are long term for her. The medical opinion in the main supports that her condition is long term.
61 I am satisfied that the impairments resulting from the plaintiff’s right shoulder injury and referred pain to her neck are serious and long term.
62 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to the transport accident on 24 January 2005.
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