Macri v TAC
[2025] VCC 598
•15 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-24-03510
| SAMANTHA MACRI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | His Honour Judge Pillay | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 May 2025 | |
DATE OF JUDGMENT: | 15 May 2025 (ex-tempore) | |
CASE MAY BE CITED AS: | Macri v TAC | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 598 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Transport accident – injury to left wrist and left shoulder – aggregate left upper limb injury – reliability of plaintiff – whether impairment consequences more than significant or marked
Legislation Cited: Transport Accident Act1986 (Vic)
Cases Cited:Victorian WorkCover Authorityv Brassington [2021] VSCA 236
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett KC and Mr P Johnstone | Carbone Lawyers |
| For the Defendant | Mr P D Elliott KC and | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1Samantha Macri suffered injury on 23 September 2021 when she was struck by a car as she was crossing a road. It is accepted that in that motor vehicle accident she sustained injury to the left wrist and to the left shoulder. By reason of the decision in Brassington v VWA[1] the parties accept that the separate injuries can be aggregated, as they impair the function of the left upper limb.
[1] Victorian WorkCover Authorityv Brassington [2021] VSCA 236
2It is the impairment consequences which flow from these aggregated injuries which fall to be assessed in accordance with the Transport Accident Act1986. The defendant submits that the plaintiff was an unreliable witness whose impairment consequences do not rise to the level necessary to satisfy the relevant test in section 93. For the reasons which follow, and after very considerable deliberation, I have determined that the plaintiff has suffered impairment consequences which are more than significant or marked.
3I come to that finding with significant hesitation, given that it turns on my assessment of whether or not she has a markedly impaired occupational capacity to work in her chosen field as a flight attendant. Absent that finding in her favour, I would otherwise not have come to the determination that she is entitled to a serious injury certificate.
Relevant history
4Turning to the relevant history, the plaintiff was born in 1968 and at the time of this application is aged 56 years. After finishing high school she worked as a hairdresser, and then in a variety of different hospitality positions. She is married and has two children. After her hospitality work she moved into administrative roles, beginning with Optus, where she worked in a variety of different administrative roles between 1994 and 2007.
5After that she worked in a variety of different positions for a range of companies as an executive assistant, then in October 2018 she came to work at Virgin Australia as part of the cabin crew. She was working in this role when the subject accident occurred on 23 September 2021. However, before arriving at that, it is necessary to also set out some of her pre-existing medical history, which became the subject of cross-examination.
6Leaving aside her mental health issues, she deposed that in about 2016 she began suffering with left knee pain. She had care under the hand of Dr Patten, orthopaedic surgeon. He performed an arthroscope in October 2016, however she had some ongoing pain and had ultrasound injection into her left knee in May 2017 and again in September 2017.[2] Obviously she then returned to work and obtained the role with Virgin Australia.
[2] Defendant’s Court Book (“DCB”) 42
7In about 2020, she began experiencing pain in her lumbar spine and hips. She was referred to another orthopaedic specialist, Dr Balakumar with those pains.[3] After review by the orthopaedic surgeon and a further referral to another orthopaedic surgeon, Associate Professor Buckland, it was considered that she ought have steroid injection into the back.[4] He noted that she was otherwise well and worked as a flight attendant at that time. She had that cortisone injection in February 2021.[5]
[3] DCB 43
[4] DCB 46
[5] Transcript (“T”) 51, Line (“L”) 8-28
8She describes the subject motor vehicle accident in her affidavit in the following terms, and I quote:
“In about 23 September 2021 I was waiting to cross the road at a pedestrian crossing on Moreland Road, Brunswick. As the pedestrian crossing light turned green I began walking across the road when a truck failed to stop and give way. I was subsequently struck by the truck. Upon impact I felt severe pain in the left side of my body and when I fell I hit the back of my head on the ground. I felt immediate pain in my head, neck and left arm - particularly my shoulder and left wrist”.[6]
[6] DCB 6-7 at paragraph [26]
9She was taken to the Royal Melbourne Hospital where she remained an inpatient for nearly five days. She was diagnosed at that stage with a fracture of the left wrist, which was an intraarticular fracture, and placed into a cast.
10She then began hand therapy in late 2021, and started osteopathy at the same time. She was also investigated for her left shoulder pain, and she had an injection of steroid into that left shoulder in about December 2021. It appears that she saw a podiatrist once in about February 2022 for problems with her feet.[7] She was experiencing such pain in her left upper limb that she was referred to Dr Chu, a pain specialist, who began her on Norflex and Gabapentin, and recommended a PRP injection into the left wrist and left shoulder in April 2022.[8]
[7] DCB 47
[8] Plaintiff’s Court Book (“PCB”) 39-40
11However, the request for the PRP injection was rejected by the defendant, and the plaintiff self-funded that injection in August 2022. Dr Chu reported that there had been a good response to the PRP injection. She had an X-ray of her right foot and left knee in August 2023 on a history of worsening osteoarthritis with severe pain. Not much seems to have come of that.
12Turning then to her work history, it appears that after her injury she had a period of several months off work. It is difficult to determine exactly how long this is, but it appears that she returned to work on purely administrative duties in around April 2022. After she had built up her hours, she returned to working a combined role in administration, and in addition returning to work as part of the cabin crew. She then appears to have been promoted to become a cabin manager.
13Briefly, a cabin crew manager is responsible for the flight crew and has specific duties in relation to the business class passengers on domestic flights. In total, there are about eight such passengers per flight. There are no trolley duties involved here, and her attention is limited to those particular 8 passengers, and otherwise supervising the cabin crew. In about September 2024, her administrative duties ceased and she became a full time cabin manager.
14In this role she worked about 140 hours per month, travelling domestically and also on occasion international trips to both Fiji and Bali. In January 2025 she applied to Virgin to go on to part-time duties. According to her evidence, so as to help her cope with muscle fatigue.[9] That application was rejected and the plaintiff worked on as a cabin manager full time thereafter.
[9] Exhibit P2
15In March 2025 she applied again to go onto part-time duties, as she was concerned that full time flying was exacerbating muscle fatigue after her transport accident. In April 2025 Virgin approved a six-month part-time role for her as a cabin manager on the basis of her application that due to her age and the Transport Accident Act injuries, she was experiencing muscle fatigue and needed recovery time.
Was the plaintiff an unreliable witness?
16It was submitted by the defendant that the plaintiff was an unreliable witness for two specific reasons. First, that she had not properly disclosed her past medical history. This was particularly in relation to her pre-motor vehicle accident injuries to the knee, her back and also her plantar fasciitis injuries.
17Dealing with each in turn, I consider that she adequately set out details of her knee complaints at paragraph 17 of her first affidavit.[10] It is to be remembered that this was occurring in 2016 and 2017. It was well prior to the subject incident, which occurred in 2021. By that stage she had had surgery, and I cannot find any contemporaneous note which suggests that she was having any treatment for the knee injury or medications for it, other than the two injections in to the knee in 2017.[11]
[10] PCB 5
[11] DCB 40, 42
18In addition to that, she had worked from 2018 until the date of the motor vehicle accident as a cabin crew member of Virgin. In that role she was required to be on her feet regularly in the aircraft, and to and from it. The fact that there are no records which detail ongoing pain or limitations arising from the left knee injury suggests that it was simply not a problem. As such, I consider paragraph [17] to well cover relevant matters and that she disclosed these.
19It might be that she could have been more detailed in acknowledging the more recent 2023 osteoarthritic pain for which she had X-ray in the right foot and knee, however I do not consider this was cross-examined upon or dealt with in any detail in the submissions. It does not change my overall findings in relation to this point.
20Next, in her affidavit I find she disclosed adequately her back injury. This is set out at paragraph 21 of her first affidavit.[12] She also touched on it at paragraph 3 in her second affidavit.[13] It was said that she did not disclose the fact that she had had an injection into her lower back in about February 2021. I consider that having disclosed the fact that she had been referred to Dr Buckland for specific treatment for the low back, it was sufficient notification in the affidavit of her low back problems at this time. However, she did give evidence which was that the injection to her low back was of immense relief to her. I will return to this point, and the significance of that evidence.
[12] PCB 6
[13] PCB 13
21Next it was said that she had not disclosed the extent of treatment for her plantar fasciitis in or about the right ankle and foot. In her affidavit she had disclosed one steroid injection only in respect of this.[14] I am unclear on the material if there was in fact more than this, no material was produced in cross-examination to suggest that it was more than one steroid injection, I therefore consider that there is not much in this point.
[14] PCB 13 at paragraph [3]
22The second area in which the plaintiff was said to be unreliable was in respect of her ability to socialise, specifically Dr Damodaran had recorded that she was socially isolated and did not socialise.[15] In contrast, the plaintiff was shown on TikTok video's, to be travelling overseas to Fiji, Bali and Tasmania, specifically with her daughter in the latter. [16] In each of those settings, she is shown with other people and appeared to be having a good time. I consider the TikTok video, as very short periods of time, to be limited use.
[15] PCB 73
[16] Exhibit D1
23The plaintiff did not depose to not being able to travel, and in fact she has travelled to both Bali and Fiji for her work and stays overnight in these locations with her crew. In fact the TikTok video for the Fiji trip was one with her work colleagues, and was a work overnight stay in Fiji. As to the Bali trip, there are some still shots of her with her husband, similarly the trip to Tasmania was with her daughter, each of these do then show that the plaintiff can be with other people, and particularly shows her with family members.
24In my opinion, it does not really contradict the notation of Dr Damodaran that she is isolated and does not like to socialise, rather it shows a mother, and a wife, and a worker, participating in an extremely small range of social activities, and importantly with those people who she is close with.
25Overall then, I consider that the plaintiff was a reliable witness. While I accept there was some unreliability in the respective dates of receiving cortisone injections, I consider these were of minor moment, and readily explainable by the elapse of time since those treatments. I am bolstered in this view because I consider that the plaintiff adequately and properly accepted contradictory evidence on these matters when they were put to her. Overall then, and having considered the defendant's submissions and assessing the material in total, I record my finding that I found the plaintiff a reliable and truthful witness who answered questions in a straightforward and honest manner, conceding when necessary.
The impairment consequences
26Turning then to consider the impairment consequences, as I set out in the introduction, the critical matter to my mind in this application is whether or not the plaintiff's occupational capacity has been curtailed. As I have accepted the plaintiff as a reliable witness, I accept her evidence that this was an occupation that she enjoyed and gave her great pleasure. It was contested as to whether or not the plaintiff actually lost the ability to work as a cabin manager on a full time basis, or for that matter to work as a cabin crew member on a full time basis.
27I consider that the chronology tells against the defendant's submission. When regard is had to that chronology it suggests that the plaintiff sustained significant injury to the wrist and arm at the time of the accident, that is demonstrated by the fact that she required significant inpatient stay at The Royal Melbourne Hospital immediately afterwards. She was then off work for a considerable number of months while she was in the plaster, then backslab and lastly the splint. She only really returned to work in about April 2022 and that was in an administrative role.
28So far that chronology reveals to me that the injury to the left upper limb was so significant it required quite substantial periods of time off work. Next, when she returned to work it was only in an administrative role and not back to cabin crew duties, that strongly suggests that her injury did not permit her to fulfill the inherent requirements of the role. Then, when she was able to do cabin crew work, she only went back on an arrangement where she performed administrative duties part time and cabin crew duties part time.
29This was to allow her to acclimatise after the significant injury to her left wrist, and so that she could rest in between shifts. It will be recalled that as a cabin crew member she had duties of pushing the trolley, closing overhead lockers, and assisting passengers with luggage. This was in the main section of the plane and not in the small business class section, as such, these manual duties were more considerable. At some point then in 2023 she applied for a position as a cabin manager, this suggests that the plaintiff enjoyed her work and was motivated in it.
30However, it must be recognised that when she commenced in this position as a cabin manager, it was in conjunction with her administrative duties. While the cabin manager role was much less physical than the cabin crew role as it was combined with the administrative role, it was overall a much lighter role than she had ever performed prior to the injury, which was a full time crew member. In September 2024, her administrative duties were terminated, and she then began work as a full time cabin manager. This is the first time she had returned to full time flying hours since the accident in 2021.
31The plaintiff's evidence is that this position caused her to experience muscle fatigue and affect her recovery. So concerned was she by this that within four months she had applied to reduce her hours to part time. I consider this to be a significant matter. This is because the plaintiff was willing to reduce her income by a significant amount in order to cope with the position. Such a step would not be lightly taken, I find, by someone who has a strong work history, who has endeavoured to return to work, be promoted, and wanted to stay with the company.
32Quite clearly from her occupational history, she has worked as an executive assistant, which is unlikely to involve physical duties, and so had a capacity to return to that job. However, the fact that the plaintiff endeavoured to remain with Virgin even if it required a substantial reduction in her pay indicates strongly that she enjoyed her work and wanted to remain in it, in that situation the plaintiff pressed on working as a full time cabin manager.
33However, she renewed her application for part time hours in March 2025, and this was ultimately successful. That further application bolsters my finding and the reasons that I have just set out, that the plaintiff was motived to work, enjoyed her work, but was struggling with it by reasons of her left upper limb injury. These matters are supported by Ms Tomassoni's affidavit. In making that finding, I have not relied on those parts of her affidavit objected to and do not rule further on these parts of her affidavit, as I have not considered them.
34It will be apparent then that I find the plaintiff's occupational capacity to continue with her role as a cabin manager or cabin crew with Virgin is very substantially and detrimentally affected by her left upper limb injuries. To the extent that the defendant relied on the vocational services closure report, I do not find that it is an accurate assessment of the plaintiff's occupational capacity, at that stage in April 2023.[17] First, this document was never put to the plaintiff in cross-examination and she was not permitted an opportunity to explain it or contradict it.
[17] DCB 71-73
35Second, it is unclear who exactly is writing the report, their qualifications and where they are obtaining the information from. This casts significant doubt on the veracity of the report. Third, the reporting is not correct when it suggests that the plaintiff had returned to full duties as of April 2023, this is because it is uncontroverted that at that stage she was working a combination of administration and cabin crew duties. It was not a return to her duties as she had them at the time of the accident. For these reasons I do not place any weight on that document.
36To the extent that the defendant relied on Mr Chehata, that she more likely has a pain syndrome associated with her left upper limb injuries, I do not accept that opinion. This is because I consider that while he considers there are functional elements in her presentation, I accept her as a witness of truth who has correctly recorded in her affidavit evidence, and evidence in the Court what her symptoms are accurately.
37I also note that he has a history that she has returned to work as a cabin crew remember with no restrictions. As set out above, she is not employed as a cabin crew member but rather a cabin crew manager. In that role she has far less physical tasks to perform. Furthermore, Mr Chehata has no history that she has struggled to cope with the cabin manager position, and has repeatedly made attempts to move onto part time work to manage her condition. I consider these factual matters significant, and undoubtedly will have impacted upon his opinion, as he has not taken them into account. I consider his opinion is of far less weight.
38In addition to this, I find that the plaintiff's sleep is impacted by her left upper limb injuries. I accept her evidence that on most nights she suffers from broken sleep due to the pain in her left shoulder and left wrist, because it wakes her up.[18] I find that prior to the motor vehicle accident she was an active participant in gym exercises, which she described as light gym work. This could be pump classes or spin classes. I accept her evidence that she is no longer able to participate in this enjoyable activity because of the restrictions in her left shoulder and wrist.
[18] PCB 9 at paragraph [54]
39In his clinical examination findings, Mr Asaid recorded limitations of movement in the left shoulder.[19] This is consistent with the limitations that she speaks of, and which prevent her performing these activities. I accept that the plaintiff takes over the counter medication and on occasion takes stronger prescription medications, such as Diclofenac, Endone and Norgesic. This is not every day, but I accept the medication regime is as she sets out at paragraph 48 of her affidavit.[20] In addition, she occasionally goes to osteopathic treatment. When assessment is made of the treatment that she had while funded by the TAC from 2021 to about May 2023, it can be seen that she had treatment almost weekly.[21]
[19] PCB 54
[20] PCB 8; see also PCB 14 at paragraph [6]
[21] PCB 95
40She gave evidence that due to financial reasons she could not afford to go as regularly after that time, but the treatment record still continues to show attendances once or twice a month for osteopathic treatment. That medication and treatment regime suggests that the problems she has are ongoing, require medication and treatment so that she can continue to participate in work. It also supports my finding that she is reducing her hours to allow her to cope with work.
41It is of course also relevant to consider those matters which have been retained by the plaintiff in making an assessment of whether or not she satisfies the relevant statutory test. I accept that she has retained the capacity to work full time hours (in some roles) and pursue a job in the airline industry. That takes her interstate and overseas.
42In some of that work, she holidays with her staff. She is also able to holiday with her family. She can perform all activities of daily living, though at times has to slow down and take it easy with lifting her arm above shoulder height. Similarly, she can perform most household domestic tasks, though calls on her husband more frequently. She can drive and shop, but needs some assistance from her husband for the latter. She does have the ability to socialise I find, but I accept that she is now somewhat socially restricted. As I indicated at the outset of my judgment.
43I consider this to be a very finely balanced case. Without the impact on her occupational capacity to work as a cabin crew or cabin crew manager full time, I would not find that the plaintiff has sustained a serious injury. However, given my finding on this topic and the significance I attach to the narrowing of the plaintiff's occupational path - one which she loved and enjoyed - in combination with the other matters that I have found, I consider that she has sustained impairment consequences which are more than significant or marked. I will grant the plaintiff's application.
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