MacDonald v Transport Accident Commission
[2012] VCC 1602
•7 November 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-04560
| VICKI CLARE MacDONALD | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 12 October 2012 | |
DATE OF JUDGMENT: | 7 November 2012 | |
CASE MAY BE CITED AS: | MacDonald v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1602 | |
REASONS FOR JUDGMENT
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SUBJECT – TRANSPORT ACCIDENT
CATCHWORDS – Damages – serious injury – injury to the right shoulder
LEGISLATION CITED – Transport Accident Act 1986, s93(4)(d), 93(6), 93(17)(a)
CASES CITED – Humphries & Anor v Poljak [1992] 2 VR 129; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Richards v Wylie (2000) 1 VR 79; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
JUDGMENT – Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Keogh SC with Ms M Pilipasidis | Slater & Gordon |
| For the Defendant | Mr G Lewis SC with Ms A Wood | Hall & Wilcox |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 14 March 2004 (“the transport accident”).
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 plaintiff brings this application pursuant to paragraph (a) of the definition of “serious injury” to be found s93(17) of the Act. There –
“serious injury means—
(a) serious long-term impairment or loss of a body function.”
4 The loss of body function relied upon in this application is the right shoulder.
5 The plaintiff seeks leave to issue proceedings at common law.
6 The plaintiff relied upon four affidavits: two sworn by the plaintiff on 22 December 2010 and 30 August 2012; one sworn by her mother, Claire Caddy, on 14 March 2012 and an affidavit by her brother, Joseph MacDonald, sworn on 3 May 2012.
7 The plaintiff was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities:
(a)that the injury suffered by the plaintiff was as a result of the transport accident;
(b)that the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.
9 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. The requirements of the test are set out in the decision of Humphries & Anor v Poljak[1] where the majority of the Court of Appeal said:
“We think that the task of a judge confronted with the requirement to determine an application made pursuant to sub-s.(4)(d) when reliance is placed upon sub-s(17)(a) may be stated in the following terms: he is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[2]
[1][1992] 2 VR 129
[2] Humphries & Anor v Poljak (supra) at [140]
10 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;[3]
[3]Richards v Wylie (2000) 1 VR 79
11 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[4]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[4][1998] 1 VR 702
12 The term “serious” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[5]
[5]supra at 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. In particular, Chernov JA at paragraph 29
The Issues
13 Counsel for the defendant informed the Court that the nature of the injury is in question. Secondly, this is a “range” case and the plaintiff does not satisfy the test of “serious” injury.
The Plaintiff’s Evidence
14 In her affidavits sworn on 22 December 2010 and 30 August 2012, the plaintiff deposed that:
· On 14 March 2007, she was a passenger on a bus. She was standing when the bus braked violently and veered. She was jolted but did not fall because her hand was stuck in the handhold.
· She was vomiting at the scene. A short time after the accident, she experienced severe pain in her shoulder. The next morning, she attended the Emergency Department of the Western Hospital. An x-ray was taken, her arm was placed in a sling and she was given analgesics.
· She continues to consult her general practitioner and was referred for an ultrasound. She was referred to Dr Richard Dallalana, orthopaedic surgeon.
· On 10 May 2007, she had surgery to repair the supraspinatus tendon. She continued to experience severe pain and discomfort in her shoulder area after the surgery.
· She has undergone physiotherapy, myotherapy, a Pilates exercise program and chiropractic treatment. She found the myotherapy and physiotherapy exacerbated her pain. The chiropractic treatment has been of limited benefit.
· She was referred to a pain management specialist, Dr Peter Courtney. In March 2011, she underwent a ketamine infusion. This reduced the pain, but only temporarily.
· She continues to consult her general practitioner, Dr Salter, pain specialist, Dr Courtney and also attends a psychologist, Ms Kay Francom. She currently takes Panadeine Forte, Panadol Osteo, Doxepin, Somac, Lyrica and Gabapentin. The medication helps and she is not as sensitive to touch as she was before.
· She continues to experience pain and discomfit in her right shoulder area and down her arm. Movement of her shoulder and arm is restricted.
· As a consequence of her injury it takes her longer to undertake tasks which she could do easily before the accident. She has difficulty with personal hygiene and grooming tasks, such as washing and styling her hair, putting her right arm through clothes and doing up her bra.
· She is less able to tend to the garden – she can no longer mow the lawn, dig, weed or prune – activities she engaged in before her injury.
· Her ability to undertake a variety of domestic chores is impaired, in particular vacuuming, making the bed and cutting food. She has difficulty lifting; for example, she has to be careful when lifting the washing basket that it is not too heavy. She can hang the washing but is much slower than she used to be.
· At the time of the transport accident she was employed by the National Heart Foundation as an executive assistant. As a result of her injuries, she is no longer able to work.
15 In her affidavit sworn on 14 March 2012, Ms Claire Caddy deposed that:
· She is the mother of the plaintiff.
· Prior to the accident, the plaintiff arranged family functions and cooked meals for the family. She was hardworking and a happy and fun loving young woman.
· Since the accident, the plaintiff is short tempered and aggressive in conversation.
· She attends the plaintiff’s home several times per week to assist her by cutting vegetables, hanging out washing, sweeping and mopping and cleaning up after the dog.
16 In his affidavit sworn on 3 May 2012, Mr Joseph Macdonald deposed that:
· He is the brother of the plaintiff.
· Prior to the accident, the plaintiff was reliable and would attend family gatherings. She is less reliable now and does not always attend family events.
· Prior to the accident, they regularly attended the football. Now she only goes to three or four games per season.
· Since the accident, the plaintiff is unnecessarily short and nasty at times.
The Plaintiff’s Evidence in Cross-examination
17 The plaintiff gave the following pertinent evidence:
·She uses her left hand for writing.
·She worked at the Australian Housing and Urban Research Institute until July 2003 when she ceased her job due to funding issues, leadership changes and it was “time to move on”.
·She was not employed for a considerable period of time. She performed volunteer work with the Australian Labor Party (“ALP”). She thought she did some temporary work with a forensic accountant, a marketing company and another accounting practice and then twelve months with Ray White Real Estate.
·She was employed by the National Institute of Circus Arts (“NICA”), where she worked for a few months before ceasing in 2005. She moved on because she did not like the arts environment.
·She assisted her sister, who was standing for the Maribyrnong Council.
·She agreed she was working for the Maribyrnong Council campaign at the same time as she was working with NICA.
·She returned to NICA, where she worked for 38 days. She did not recall receiving three warnings from her superior. She said there may have been three discussions. She agreed her attendance at work was in dispute. She thought she worked more than two days, probably twenty days. She said she left because it was a contract for a few weeks. She did not remember being terminated. She agreed it did not end up particularly well. She said she did not communicate very well with the executive director and was expected to be more in-house than she expected. She said the second period at NICA ended in mid-2005.
·She agreed she found it difficult to find consistent paid employment prior to the transport accident. She said she was looking for a particular place to work, where she could work nine to five and have her nights and weekends to herself.
·She commenced employment in January 2007 with the Heart Foundation. She agreed that Kathy Bell of the Heart Foundation had a meeting with her about her non-attendance. She said the Heart Foundation classed leaving work early for an appointment as a full day’s sick leave. She agreed that they discussed her work performance. She thought it was an eight-week review. She did not remember whether it was a special meeting called because of her poor performance. She said the termination was a surprise.
·She had attended a job interview earlier this year, which involved administrative work of filing, typing and reception work. She did not get the job.
·She has applied for other part-time positions.
·In 2008, she commenced studying for four weeks.
·In 2010, she commenced an online psychology course.
·She agreed she told Dr Entwisle in March 2012 that she was studying. She is no longer studying the course because she could not keep up with the online work requirements.
·She thought she attended a myotherapy chiropractor in 2008 and went back to it later. She agreed she had increased sensitivity to light touch and pin prick of the lower third of the right side of her face, the right side of her neck, and the upper part of her shoulder. She said that the myotherapy chiropractor was working on her back. She agreed that involved touching her. She said she was trying hard to get well and continued even though it was painful.
·She agreed she engaged in regular swimming three times a week but now she is swimming once a week. In November 2007, she stopped using flippers and goggles and now uses a kickboard.
·She agreed she attended the gym in 2009 and was doing cardio work, walking on a treadmill for about 20 minutes.
·She agreed she told Mr Dooley in April 2012 that walking aggravated her shoulder pain as the motion causes pain, a burning sensation in the front of her shoulder.
·She said she tries to keep her arm steady when walking but does swing her arm. When she walks on the treadmill she holds onto the bar. She agreed that she can walk for 60 minutes, but not on a treadmill. She said she had an English bull terrier dog but does not take it walking often because it drags on her shoulders. She said she walked the dog for 30 minutes.
·She said she needed help with cleaning the bathroom and large surfaces. She cannot clean the floors or do the vacuuming. She said, in September 2007, she tried gardening and pulling weeds, but it would have been painful. She agreed that she told Dr Eaton in September 2007 that she could perform domestic tasks but said that since September 2007, things have gotten worse.
·She agreed she had seen a psychologist, Elizabeth Barson, for approximately a year and is now seeing Kaye Frankham, whom she has seen on two occasions. She said part of her treatment with the psychologist is that she is trying to get back to doing everyday tasks and she would report the small jobs that she has done.
·She agreed that in March 2012 she told Dr Fish she is hypersensitive to any touch of the shoulder or upper arm, and is unable to clean her home, cannot drive and her sleep is disturbed.
·She agreed that when she saw Dr Serry in August 2012 she said that she hardly drives.
·She agreed she told Dr Entwisle that she could not drive because she was upset as a result of the accident, had pain in her arm, plus her medications affected her concentration.
·In February 2012, she told her psychologist that she was driving her mother’s car. She did not know why she had not told Dr Entwisle and Dr Serry that she was trying to get back to driving. She agreed that she had driven to her brother’s house on Australia Day and had driven on a number of other occasions.
·She said she could not sit at the picture theatre because she becomes uncomfortable with the pain in her shoulder and neck. She thought she had been to the picture theatre twice in the last twelve months.
·She said she cannot go out to listen to live music because it causes pain; the reverberation of the music hitting her shoulder. She agreed she could listen to music at home provided it was very low. It agitates her.
·She agreed she had been to the football to see twelve games this year.
·She had been involved in another bus accident, which aggravated her neck and shoulder temporarily.
The Plaintiff’s Medical Evidence
Western Hospital
18 A report of the Western Hospital dated 25 January 2008 confirmed that the plaintiff attended the Emergency Department on 15 March 2007. The plaintiff had been on a bus the previous evening, holding onto the passenger handle, when the bus turned abruptly, resulting in a twisting of her right shoulder, resulting in pain.
19 On examination, there was no swelling or deformity and no neurological deficit was detected. X-ray examination was normal. A diagnosis of right shoulder strain was made. However, the possibility of rotator cuff injury was mooted. The plaintiff was prescribed non-steroidal anti-inflammatory medication and provided with a sling.
Dr Ivor Green
20 Dr Green, general practitioner, provided reports dated 5 October 2007 to the defendant and 12 December 2007 to the plaintiff’s solicitor. Dr Green confirmed that the plaintiff was seen by Dr Nazareth at the surgery on 21 March 2007 with a history of a strained right shoulder as a result of a bus accident one week earlier. The plaintiff had attended the Western Hospital where x‑rays were performed. Dr Green saw the plaintiff one week later when the plaintiff complained of significant right shoulder pain. Examination showed extremely limited shoulder movements in all directions. She was referred for a shoulder ultrasound which showed a large, almost complete, full thickness tear involving the anterior fibres of the supraspinatus tendon near its insertion. There was also a suggestion of a possible undisplaced fracture of the great tuberosity. There was a mild subluxation of the right anterior cruciate (“AC”) joint. The plaintiff was referred to an orthopaedic surgeon, Mr Richard Dallalana, who performed an arthroscopy and rotator cuff repair of her right shoulder. She was last seen on 1 June 2007. Dr Green confirmed that there was no record of any prior shoulder problem.
Mr Richard Dallalana
21 Mr Dallalana, orthopaedic surgeon, provided reports dated 31 January and 13 June 2008. He first saw the plaintiff in April 2007 on referral from her general practitioner. Mr Dallalana diagnosed a tear of the supraspinatus tendon. He performed surgery on 10 May 2007, which confirmed the diagnosis. He said it was a large partial thickness tear of 80 to 90 per cent of the thickness of the tendon. He said the plaintiff’s surgery was uncomplicated and she made a good short-term post-operative recovery. The plaintiff commenced an exercise program with the physiotherapist.
22 In June 2008, in a letter to the defendant, Mr Dallalana said the supraspinatus tear had healed and the plaintiff’s right shoulder was at pre-injury level of function. He said the plaintiff described an additional pain distinct from the shoulder which emanated from the neck and passed over the front of the right collarbone. Mr Dallalana recommended she seek an opinion from a neurologist. He said that she did not describe this discomfort prior to the accident and he said the plaintiff’s partial discomfort had not resolved to its pre-accident level and had not been treated prior to June 2008. He thought it unlikely, given her age and the fact that she did not have a history of shoulder pain, that she had a degenerative tear, but rather the tear resulted from the accident.
Dr John Green
23 In February 2008, Dr Green, general practitioner at the Millennium Medical Centre, reported to the plaintiff’s solicitor that the plaintiff’s prognosis was guarded. He reported that the plaintiff was swimming regularly and he recommended she be reassessed for vocational rehabilitation. In June 2009, Dr Green reported that the plaintiff’s progress had been poor because of continuous pain in the right shoulder. He said she was swimming weekly and had started at the gym.
Professor Stephen Davis
24 In 2009, Professor Davis, neurologist, saw the plaintiff at the request of her general practitioner. She complained of ongoing pain in her right shoulder, up and down the arm, with intermittent tingling in the arm and hand. She also had some recurrent migraine-type headaches and there had been a significant impact on her mood. She had received chiropractic treatment and some pain management. Shoulder massage had been unpleasant. Professor Davis said the plaintiff’s problems were of an orthopaedic nature without any discernable neurological damage. He recommended a rheumatological opinion be sought and thought a pain management specialist could be of assistance.
Dr Alex Stockman
25 In January 2010, Dr Stockman, rheumatologist, reported to the plaintiff’s solicitor it was his view that the plaintiff was suffering persistent rotator cuff tendonitis/bursitis in the shoulder and some inflammation of the acromioclavicular joint. In addition, there was evidence of a pain syndrome that was a hypersensitivity of nerve fibres by central and all peripheral mechanism. He noted the plaintiff was receiving treatment from a masseur and a chiropractor, which was providing temporary relief and was being supplemented by analgesic and anti-inflammatory medication. He noted that she was not having specific treatment for neuropathic pain such as tricyclic antidepressants or neural membrane stabilisers. He recommended the above medications and attendance at a multidisciplinary rehabilitation/pain management unit.
26 He said, without further imaging such as ultrasound or an MRI scan of the shoulder and x‑ray of the cervical spine, he could not be specific about the cause of the ongoing symptoms.
Dr Peter Courtney
27 In June 2012, Dr Courtney, anaesthesia and pain medicine specialist, reported that he saw the plaintiff on referral from her general practitioner in October 2010. The plaintiff complained of ever present pain which radiated into her neck and down her right arm with activity. Allodynia was present over the anterior shoulder and chest. Dr Courtney recommended and supervised her hospital admission for ketamine and magnesium infusions in March 2011, which gave her some benefit. But fifteen months later, the ketamine effects had worn off and she had returned to her pre-infusion state, although possibly not quite as bad. He referred her to a psychologist, Kaye Frankham, and when reviewed in April 2012, she reported that she was dealing better with her pain.
28 He recommended she replace Lyrica with Gabapentin to avoid side effects. He thought she may be a candidate for spinal cord stimulation but she was reluctant to consider such a process. Dr Courtney said that the plaintiff suffered a Chronic Regional Pain Syndrome involving her dominant right arm, which was a direct result of her transport accident. She continued to experience pain in the right upper limb consisting of both mechanical and neuropathic elements. He said she continues to have difficulties with activities of daily living. He said her apparent improved ability to cope with pain was a positive sign.
Dr Eric Salter
29 In September 2012, Dr Salter (at the same general practice as Dr John Green) said the plaintiff was attending the practice regularly. He diagnosed a Chronic Complex Regional Pain Syndrome which was as a direct result of the transport accident. Dr Salter said the plaintiff suffered from neuropathic pain as a result of the accident which was supported by a number of the specialists.[6] He recommended the plaintiff continue to see the pain management specialist, Dr Peter Courtney, on a regular basis. He did not think she would return to pre-injury capacity due to her ongoing issues with pain, endurance, and ability to carry on activities of daily living.
[6]The plaintiff had been referred to Dr Clayton Thomas, Dr Alex Stockman and Dr Peter Courtney.
30 Dr Salter said the prospects for rehabilitation into the workforce were moot as her current medication had an effect on her cognitive capacity and ability to concentrate, which would impact upon her capacity for work. He thought she had some capacity to work in the future, depending on her medication and its effect upon her cognitive capacity.
Professor Robert Helme
31 In August 2009, Professor Helme, neurologist, saw the plaintiff at the request of her solicitors. A neurological examination did not reveal any neurological deficit. He said her physical examination of the plaintiff’s right arm, neck and shoulder and anterior chest was consistent with regional fibromyalgia as described by the American Rheumatologic Association. Professor Helme said the plaintiff had a Regional Pain Syndrome as a response to the right shoulder injury which would be considered due to hypersensitivity of the nervous system, but there was no direct evidence of nervous system damage. He thought her best chance for improvement, which he considered was limited, was within the confines of a multi-disciplinarian pain management centre where her physical and psychological condition could be treated concurrently. He recommended an opinion be sought from an expert rheumatologist and said the plaintiff was unable to work in activities requiring repetitive arm movements or lifting of more than two kilograms with her dominant right arm.
Associate Professor Paul Desmond
32 In June 2010, Associate Professor Desmond, gastroenterologist, saw the plaintiff at the request of the plaintiff’s solicitor. He said the plaintiff underwent a gastroscopy in February 2010, which showed some antral gastritis which was proven on biopsy. She had a normal colonoscopy.
33 It was his opinion that the plaintiff had significant soft-tissue injuries to her shoulder, upper arm and neck as a result of the transport accident. He said that since the accident, she had continuous pain in her shoulder requiring non-steroidal anti-inflammatory drugs to ease her pain. As a consequence of the anti-inflammatory drugs, she developed indigestion and gastritis, proven on endoscopy. Her symptoms improved with treatment, although she has ongoing symptoms.
Dr Andrew Muir
34 In September 2010, Dr Muir, pain management specialist, examined the plaintiff at the request of the plaintiff’s solicitor. It was his opinion that the plaintiff suffered trauma in her right shoulder as a result of the transport accident, which was responsible for a partial thickness tear of her right supraspinatus tendon, which has now been repaired. He said the function in her shoulder has largely been restored.
35 In addition, she developed a persistent pain problem, the characteristics of which are both neuropathic pain, as well as muscular trigger points consistent with a myofascial pain syndrome. It was his opinion that the plaintiff would suffer from neuropathic and myopathic pain for the foreseeable future. He said this represents a reaction to her injury where, in the section of the nervous system, subserving pain sensation became hyper-excitable, so-called central sensitisation. He said the plaintiff experiences amplified nociception in the affected area with characteristics of nerve irritation or neuropathic pain, which has a secondary consequence for the plaintiff’s mental health from anxiety, stress, irritability, as well as intermittent features of a post-traumatic nature.
Dr Clayton Thomas
36 Dr Thomas, rehabilitation and pain medicine specialist, saw the plaintiff on 2 July 2008, 19 May 2010 and 8 August 2012 at the request of the plaintiff’s solicitor.
37 In his most recent report of August 2012, Dr Thomas said the plaintiff had brush allodynia and hyperalgesia to the anterior aspect of the right shoulder girdle and in the supraclavicular area and in the back of the skull on the right side. Her neck movements were mildly limited. Right shoulder movements were strong and mildly limited. Dr Thomas said the plaintiff’s primary problem is neuropathic pain in the right shoulder girdle, particularly in the supraclavicular region. Her problem is primarily a pain problem. He said she had received appropriate treatment from Dr Courtney and had settled on Gabapentin. He said she had a limited work capacity. He thought she would have difficulty performing work which was predominantly desk work. He also thought she would have difficulty performing keyboard activities. He said any emotional distress stemmed from the organic injury. He thought she had good and robust coping skills, and was not a psychological case.
38 In July 2008, he thought it was reasonable that the plaintiff be referred to a neurologist for assessment. He said her presentation was not in keeping with radiculopathy or disc prolapse. He said her presentation and the nature of her pain complaint was organic and very genuine.
Dr Nathan Serry
39 Dr Serry, psychiatrist, medically examined the plaintiff in May 2008, June 2010 and August 2012 at the request of the plaintiff’s solicitor. The plaintiff reported a marked social and recreational change. She used to enjoy going out to clubs and cocktail bars to see bands but can no longer tolerate music. This has extended to music within the home. She has been totally traumatised by roads and struggles to cope with people driving and has hardly driven since the accident, as she does not feel safe. She no longer drives because of the medication she is taking.
40 Dr Serry said the plaintiff struggled with ongoing symptoms of anxiety, agoraphobia, traumatisation and frustration. She has been seeing a psychologist and is on a sub-therapeutic dose of the antidepressant, Doxepin, which he thought was probably prescribed for pain control. The plaintiff had a past history of a significant depressive episode for which she had treatment and made a full recovery. He thought there was a nexus between the physical and psychiatric aspects of her presentation. He noted that she had not seen a psychiatrist since the accident. He thought she would benefit from psychiatric treatment.
The Defendant’s Medical Evidence
Dr David Eaton
41 In 2007, Dr Eaton, occupational specialist, examined the plaintiff on behalf of the defendant. He said the plaintiff complained of discomfort in her right shoulder associated with movement towards the end of range, which had almost returned to normal. She was able to perform domestic tasks, including bed making, laundry, shopping and gardening, for example, pulling weeds. She remained active by undertaking activities of self-care, walking for 60 minutes each morning, reading newspapers and magazines, making telephone calls, light domestic activities, feeding pets and visiting people, using public transport and shopping.
42 On physical examination, Dr Eaton said there was no significant muscle wasting or deformity and resting posture was normal on both sides. He said the symptoms of right anterior shoulder and chest pain were not typical of a specific pathological process. There was inconsistency between the history provided of diminished use of the right arm and the absence of wasting. He said there were features of abnormal illness behaviour.
Dr Timothy Entwisle
43 In December 2007 and March 2012, Dr Entwisle, psychiatrist, examined the plaintiff at the request of the defendant’s solicitor. In 2012, the plaintiff told Dr Entwisle that she hoped to return to work on a part-time basis as a receptionist. She had undergone a vocational assessment organised by the TAC and had been interviewed for one position and hoped to apply for other positions on an ongoing basis. She reported that she walked daily; bending and lifting has its limitations. She was not driving presently because she was making bad decisions because of her medication.
44 It was his view that the plaintiff presented with a Chronic Regional Pain Syndrome but without psychiatric symptoms. He thought her level of impairment would improve over time.
Mr Michael Dooley
45 In August 2010 and March 2012, Mr Dooley, orthopaedic surgeon, examined the plaintiff at the request of the defendant. Mr Dooley said that the plaintiff suffered a tear of the supraspinatus tendon of her right shoulder on the background of degenerative rotator cuff disease. She had developed a Chronic Pain Syndrome, the constancy and intensity of her ongoing pain were out of proportion to the injuries sustained or to any underlying degenerative rotator cuff disease. He said the plaintiff had suffered a significant psychological reaction to her situation, which was responsible for the majority of her ongoing pain after the recovery period following surgery. He said her condition, such as centralised sensitisation of pain, neuropathic pain, did not explain her ongoing situation. He remained of the view that to treat her pain as though it was organically based, neuropathically, was pointless. He said from an orthopaedic point of view, she was capable of working.
Associate Professor Richard Stark
46 Associate Professor Stark, neurologist, saw the plaintiff in 2010 at the request of the defendant. On clinical examination, he said there was an area of increased sensitivity to light touch and pin prick, which involved the lower third of the right side of the face and also the right anterior and posterior cervical regions, extending onto the whole of the right arm and to the upper trunk on the right, down to about the left of T3 dermatome. He said there was no evidence of neurogenic weakness. Neurological examination of the lower limbs was normal.
47 Professor Stark said the plaintiff developed a Regional Pain Syndrome without obvious autonomic features. He could find no objective signs to suggest neurological damage and there was no evidence of damage to peripheral nerves, brachial plexus or exiting nerve roots that supply the right arm. He accepted that the development of a Regional Pain Syndrome can occur after injury of this type, but said the diagnosis was heavily dependent upon the subjective symptoms reported.
48 He accepted that the prognosis was Regional Pain Syndrome. He accepted the symptoms that she reported and believed that there had been an impact on her ability to work. He said the prognosis was somewhat unpredictable because of the nature of the underlying condition. He accepted the injuries had an impact on her domestic and leisure activities.
Dr David Fish
49 In September 2008 and March 2012, Dr Fish, occupational and environmental physician, examined the plaintiff at the request of the defendant’s solicitor. In March 2012, he said the plaintiff had become hypersensitive to any touch to the right shoulder or upper arm. She said she was unable to clean her home, cannot drive and sleep is disturbed. She complained of persistent aching and pain over the right shoulder girdle with constant migraine. She could not perform any sweeping, mopping or ironing, nor could she stand for long periods. She found showering with water running over the right arm increased the pain.
50 Dr Fish said the plaintiff presented with features of a Chronic Pain Syndrome which he characterised as a Chronic Regional Pain Syndrome following an organic injury to the right rotator cuff surgically treated. He said she had some loss of body function of the right upper extremity which is likely to persist into the foreseeable future. Her prognosis is poor and further treatment should concentrate on functional improvement. He considered she was totally incapacitated for all employment which was a result of the injury and her current incapacity for employment was as a result of the transport accident.
Dr John Coleman
51 In October 2010, Dr Coleman, gastroenterologist, prepared a medical impairment assessment report. It was his diagnosis that the plaintiff had gastritis. He said the plaintiff had taken a large amount of painkillers and anti-inflammatory medication as a result of her right shoulder injury in the transport accident. In 2008, she was commenced on Celebrex and developed a quite severe and sudden onset left upper quadrant pain. He described her condition as stable.
Mr Michael Shannon
52 In April 2012, Mr Shannon, surgeon, examined the plaintiff at the request of the defendant. He said she complained of pain in the right side of her neck and as a result had stopped driving. He diagnosed a soft-tissue injury to the right shoulder and a Chronic Pain Syndrome. He said the function in her right shoulder and the range of movement was substantially better than that recorded by Mr Dooley in September 2010. He said she had a wide spread hypersensitivity which was inconsistent. He said she had no significant wasting of the arm or forearm.
53 Mr Shannon said the plaintiff had mild restriction of movement of her right shoulder following the rotator cuff repair and she has a Chronic Pain Syndrome. He said the right shoulder injury would appear to have had an organic basis and she has ongoing restriction of movement which is organic. She is likely to have a permanent restriction of movement but he could not predict the progress of a pain syndrome.
54 He said her treatment should remain conservative. He accepted she would be limited in her activities of hair care and more strenuous household tasks but, given that she was not working, he thought she could perform these activities as required. He did not think her physical injuries would prevent her from performing those tasks. He said she should become more independent.
Heart Foundation
55 The defendant relied upon a letter signed by Ms Kathy Bell, Chief Executive of the Heart Foundation, to the plaintiff dated 4 April 2007. The letter stated that the plaintiff failed to perform satisfactorily in the role of executive assistant to the CEO. Her performance had not improved significantly since a meeting in February 2007. Ms Bell stated that at that meeting, she had raised performance issues, particularly in regard to organisation skills, accuracy and timely completion of tasks.
Kaye Frankham & Associates
56 In February 2011, Ms Frankham recorded in progress notes that the plaintiff had been walking her dog and weeding the garden.
Credit of the Plaintiff
57 The plaintiff was highly articulate. The plaintiff had a poor work history, which was partly explained by her periods of depression prior to the transport accident, her voluntary work with the ALP and the assistance she provided with her sister’s campaign for election to the Maribyrnong Council. She was asked about a number of jobs she had, and the reasons for her leaving those positions. She failed to make reasonable concessions about her performance at work at both NICA and the Heart Foundation. I formed the opinion that she was evasive on this point.
58 It was hard to explain some of her consequences in relation to the injury. For example, she said she still attends the football regularly, having been to twelve matches this year. Yet, she said she could not go to the movies,[7] nor listen to music at clubs and even listening to music in her home caused her distress. I formed the view that she exaggerated her complaints at times.
[7]Although the plaintiff conceded she went to the movies on two occasions recently, where she had to stand up.
59 I did not form a favourable opinion of the plaintiff’s credit and, as a consequence, I have adopted a cautious approach to the acceptance of her evidence. I place greater weight on her evidence when it is supported by independent evidence.
60 I do not consider the affidavits of the plaintiff’s mother and brother to be reliable. The brother’s evidence was contradicted by the plaintiff’s evidence in Court. The mother described the plaintiff as a hardworking and reliable employee. This was inconsistent with the evidence of the plaintiff’s employer. Ms Caddy also described the plaintiff as a happy and fun loving young woman prior to the transport accident, but the plaintiff told the Court she had suffered depression prior to the accident. Accordingly, I place little weight on the evidence of the plaintiff’s mother and brother.
Analysis of the Evidence
61 All medical witnesses accepted the plaintiff suffered an injury, being a tear of the supraspinatus tendon which was confirmed on surgery. The surgery was successful and the plaintiff made a good recovery. What was in issue was additional pain, which emanated from the neck and passed over the front of the collarbone and into the face, as distinct from the shoulder pain.
62 I must consider the plaintiff’s injury at the time of the hearing of the application. Accordingly, I place greater weight upon the more up-to-date evidence of Dr Courtney, Dr Serry, Dr Thomas, Dr Salter, Dr Entwisle, Dr Fish, Mr Dooley and Mr Shannon.
63 The plaintiff complained to her surgeon, Mr Dallalana, of the pain in June 2008. Mr Dallalana said the plaintiff did not describe the discomfort prior to the transport accident. He recommended she see a neurologist.
64 In July 2008, the plaintiff reported the pain to Dr Thomas, pain management specialist, who said her presentation was organic. He had no doubt that the nature of her pain complaint was organic and very genuine. He specifically said the plaintiff’s complaint was not a psychological response. He said any emotional distress stemmed from the organic injury. He thought the pain appeared to be neuropathic and said the plaintiff should be referred to a neurologist for further assessment. I accept the submission of the plaintiff’s counsel that Mr Thomas was referring to the organic presentation in relation to the neuropathic pain. The referral to a neurologist was to exclude neurological injuries. Professor Davis, neurologist, said there was no discernable neurological damage. He thought the plaintiff’s complaint was orthopaedic in nature and recommended a rheumatologist’s opinion be sought.
65 Dr Stockman, rheumatologist, said the plaintiff was suffering persistent rotator cuff tendonitis/bursitis in the shoulder and an inflammation of the anterior cruciate joint. In addition, he said there was evidence of a pain syndrome (specifically allodynia) which he described as a hypersensitivity of nerve fibres by central or peripheral mechanism.
66 Professor Helme, neurologist, confirmed that the tender points in the right arm, neck and shoulder and anterior chest were consistent with those described by the American Rheumatology Association as being due to regional fibromyalgia. He described the complaint as a Regional Pain Syndrome which would be considered due to the hypersensitivity of the nerve system, but said there was no direct evidence of nervous system damage.
67 Dr Muir, pain specialist, said the characteristics of the plaintiff’s persistent pain problem were neuropathic pain and muscular trigger points consistent with myofascial pain syndrome.
68 The plaintiff’s general practitioner, Dr Salter, who had treated the plaintiff on a regular basis since December 2009, diagnosed a Chronic Complex Regional Pain Syndrome which he said was a direct result of the transport accident.
69 Dr Courtney, anaesthesia and pain medicine specialist, treated the plaintiff on three occasions. He diagnosed a Chronic Regional Pain Syndrome involving her dominant right arm, which was a direct result of her injury in the transport accident. He said, despite the rotator cuff repair, she continued to experience pain in the right upper limb consisting of both mechanical and neuropathic elements.
70 Dr Fish, pain specialist, diagnosed a Chronic Pain Syndrome which he characterised as a Chronic Regional Pain Syndrome following an organic injury to the right rotator cuff which had been surgically treated.
71 Professor Stark diagnosed a Regional Pain Syndrome. He said the syndrome can occur after an injury of the type the plaintiff described, but said the diagnosis was heavily dependent upon the subjective symptoms reported. He went on to say that he accepted the symptoms the plaintiff reported. Mr Shannon accepted the plaintiff had a Chronic Pain Syndrome but said her widespread hypersensitivity was inconsistent, as she claimed to have an inability to use her right arm since the accident and there was no significant wasting of the arm or forearm.
72 Mr Dooley and Dr Serry suggested that the plaintiff had suffered a psychological element to her condition. However, the majority of the doctors accepted that the plaintiff’s psychological consequences were a reaction to the physical injury she sustained.
73 The current medical evidence is that the plaintiff is suffering from a Chronic Regional Pain Syndrome,[8] a Chronic Pain Syndrome,[9] a Complex Regional Pain Syndrome[10] and neuropathic pain[11] which affects her activities of daily living and ability to work. I accept that all the doctors are talking about the same condition, but have described it differently. They agreed the condition was a result of an organic injury to the plaintiff’s shoulder.
[8]Dr Fish
[9]Mr Shannon
[10]Dr Salter, Dr Courtney
[11]Dr Thomas
74 Mr Shannon was the only doctor to question the genuineness of the plaintiff. Mr Shannon only saw the plaintiff on one occasion and obtained a history that the plaintiff did not use her right arm at all. That was inconsistent with what she told other doctors and her evidence in Court. The plaintiff said in her second affidavit sworn in August 2012 that the change in medication has helped her symptoms, in that her shoulder and arm are not as sensitive to touch, as was the case, and she is now better able to perform some aspects of everyday activities. Of those doctors who saw the plaintiff on more than one occasion, and in particular her treating general practitioner, there was no issue about the genuineness of the plaintiff’s complaint. Further, the plaintiff’s complaint of pain has been consistently made since the surgery in 2007.
75 In response to Mr Shannon’s concerns about the lack of significant wasting and the plaintiff’s inability to use her right arm, I accept the submission of counsel for the plaintiff that it has not been part of the plaintiff’s case that she does not use her right arm. She has told her general practitioner and other doctors whom she has seen that she exercises, swimming and walking on the treadmill. In her affidavit material, she says she uses her arm; it is painful and it causes her difficulty.
76 Accordingly, I find that the plaintiff’s Complex Regional Pain Syndrome is an organic condition and that the plaintiff’s pain and restriction of use of her arm is a result of that condition.
77 The plaintiff has consistently reported the pain she suffers to all the medical witnesses she has seen. I can take into account the treatment that she has undertaken as a measure of the plaintiff’s pain.[12] The plaintiff underwent surgery performed by Mr Dallalana, she had had physical therapy over a number of years and she has taken medication for many years.
[12]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 [11]
78 In March 2011, Dr Courtney administered a ketamine and magnesium infusion. The result was that her pain levels reduced. However, at review in July 2012, he said the ketamine effects had worn off. He referred her to a psychologist, and by April 2012, he said she was dealing better with her pain. He replaced Lyrica with Gabapentin, which was more effective. He recommended a spinal cord stimulation, which she was reluctant to undertake, but he considered that it may eventually be necessary. He said he could not proffer a prognosis at this stage as there remain therapeutic options which have not been explored.
79 The plaintiff had also three corticosteroid injections into her right shoulder. Currently the plaintiff is taking medication of Gabapentin, Panadeine Forte, Panadol Osteo, Doxepin and Somac. She said the medication has improved her symptoms and she is able to perform some aspects of daily living despite the fact that she continues to experience pain and discomfort in the shoulder region. Further, the plaintiff said the current medication affects her concentration. This was supported by both Dr Courtney and Dr Salter. Both accepted this would affect her ability to return to work.
80 No doctor suggested that the medication that she was taking was inappropriate, and some doctors approved the regime and said it was assisting her.
81 As a consequence of the pain she suffered, she was prescribed anti-inflammatory drugs. The plaintiff developed indigestion and gastritis and changed to Somac. Professor Desmond and Dr Coleman accepted that this impairment was related to the transport accident.
82 I accept that as a consequence of the plaintiff’s injury, she has received medical treatment and medication. The medication has affected her concentration. The anti-inflammatory medication resulted in her developing indigestion and gastritis.
83 In her first affidavit, the plaintiff deposed that as a result of the pain and discomfort, she was unable to engage in a variety of domestic activities and general activities of daily living were significantly adversely affected. She said she had difficulty washing and styling her hair, personal hygiene matters requiring the use of her right hand were difficult, she had difficulty doing up her bra and the bra strap rubbed into her shoulder and caused pain. Mr Shannon accepted that some heavier aspects of home cleaning may impose stress on her shoulder; he said she would be somewhat limited in overhead activities, such as blow waving her hair, but should be encouraged to perform the activities rather than becoming dependent on others. He thought, that as she was not working, she should be able to perform these activities as required.
84 In 2012, the plaintiff reported to the doctors whom she saw restrictions and limitations upon her activities of daily living. She had difficulty typing and using her computer, which led to the return of pain.[13] She told Dr Fish her sleep was disturbed and she wakes tired most morning, she cannot perform sweeping, mopping or ironing.[14] This is consistent with her complaints to Mr Shannon. In March 2012, she told Dr Fish she was no longer walking her dog but in August 2012, she told Dr Thomas she walks the dog for short distances and employs a dog walker to take the dog for vigorous walks. I accept that these are consequences that the plaintiff has suffered.
[13]Dr Thomas at PCB 71 and Dr Fish at DCB 33
[14]DCB 33
85 The plaintiff said she has been unable to return to any form of employment. The evidence was that the plaintiff had a poor work history prior to the accident. She had engaged in voluntary work for the ALP and had assisted her sister, who stood for election for a local council. The plaintiff’s evidence was that she had been told she could undertake part-time work and was applying for positions; she had been for one interview and had another interview over the telephone. Most of the medical witnesses accepted the plaintiff was now probably suitable only for part-time work. Dr Salter agreed with Dr Courtney about providing a prognosis. He said the current medication had an effect on the plaintiff’s cognitive capacity and ability to concentrate, which would impact on her ability to work. He said the plaintiff may have a capacity to work in the future.
86 I accept the plaintiff’s inability to work has been a consequence, and it is a matter I can take into account. However, given her poor work history, I place less weight on it than for a person who had a good work history.
87 In respect to the orthopaedic injury, the supraspinatus tear, I accept that Mr Shannon comes to a different conclusion to that of Mr Dooley. However, I accept that Mr Dooley’s opinion is not supported by the other medical witnesses. Mr Shannon accepts the plaintiff has ongoing orthopaedic problems. He said the plaintiff should be encouraged to be more active, rather than less active, and it is clear from the evidence that her general practitioner, Dr Courtney, and her current psychologist, are supporting her in this regard. The plaintiff said that she is having some success. However, Mr Shannon accepted that there would be limitations on the activities that she could do and he accepted it was an ongoing problem.
88 The plaintiff gave evidence that her driving has been affected. This is because of the accident, the pain in the arm and the medications she is taking which interfere with her concentration. I accept that those reasons are fair and reasonable. The plaintiff did not suggest that she never drove but said she has driven earlier this year when her mother was away and she had the use of her mother’s car. Dr Courtney and Dr Salter accepted that the medication would affect the plaintiff’s cognitive ability and concentration.
89 I accept the plaintiff was involved in a second bus accident. The plaintiff said it caused some temporary problems but no ongoing problems. The second bus accident was referred to in the general practitioner’s notes in December 2009; however, there was no further treatment at that time. I accept the submission of counsel for the plaintiff that if the defendant wished to pursue the matter one would have expected the general practitioner to be cross-examined on this point. In the absence of any evidence to the contrary, I accept the plaintiff’s evidence as to the second accident.
90 I accept the plaintiff has suffered the abovementioned consequences. Those consequences are supported by the evidence of the plaintiff and the medical evidence. I also accept that she suffers pain which affects her activities of daily living and her ability to return to work, but with the proviso that I referred to in paragraph 59. She is required to take medication which affects her cognitive faculties, in particular her concentration, which affects her ability to return to work and to drive. A number of the doctors specifically said they were unable to provide a prognosis. She has difficulty performing domestic tasks. I accept that for a woman aged forty-two, the pain she suffers, the side-effects of the medication she takes, and the daily living consequences are significant.
91 I am persuaded on the balance of probabilities and in the light of the evidence as a whole, that the consequences the plaintiff suffers satisfy the test. I accept the pain and suffering consequences to this particular plaintiff are “serious”. I accept that when judged by comparison with other cases in the range of possible impairments, the consequences of the impairment can be fairly described as being at least “very considerable” and certainly more than “significant or marked”.
92 As the plaintiff’s consequences have persisted for almost five years and there is no evidence to suggest improvement in the future, in my view, her impairment is long-term.
93 Taking all the evidence into account, I am satisfied that the plaintiff has a long-term serious impairment of her right shoulder.
94 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to injuries sustained in the transport accident on 14 March 2007.
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