Makrangelos v TAC
[2012] VCC 14
•18 January 2012 (Revised)
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-05355
| MARY MAKRANGELOS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18, 22, 23 and 24 November 2010 | |
DATE OF JUDGMENT: | 18 January 2012 (Revised) | |
CASE MAY BE CITED AS: | Makrangelos v TAC | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 14 | |
REASONS FOR JUDGMENT
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SUBJECT – TRANSPORT ACCIDENT – damages
CATCHWORDS – Serious injury – whether right shoulder injury occurred – nature and extent – whether such injury is serious
LEGISLATION CITED – Transport Accident Act 1986, Section 93 – serious injury – paragraph (a)
CASES CITED – Dressing v Porter & Anor [2006] VSCA 215; Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis & Ors [1998] 3 VR 833; Richards v Wylie (2000) 1 VR 79; Petkovski v Galletti [1994] 1 VR 436
JUDGMENT – Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D F Hore-Lacy SC with Mr S J Jurica | Zaparas Lawyers |
| For the Defendant | Mr R H Gillies QC with Ms R N Annesley | Solicitor for the Transport Accident Commission |
HIS HONOUR:
Introduction
1 By way of Originating Motion dated 8 December 2008, Mary Makrangelos (“the plaintiff”), seeks leave pursuant to s.93(4)(d) of the Transport Accident Act 1986, (As Amended) (“the Act”), to bring common law proceedings to recover damages for a right shoulder and arm (“the injury”) suffered by her arising out of a transport accident on 4 October 2006 (“the transport accident”).
2 The plaintiff, Ms Sofi Angel (the daughter of the plaintiff), Dr S P Siapantas, Dr S Moraitis, Mr J Makrangelos and Dr P Andrianakis gave evidence and were cross-examined. Both parties tendered various documents.[1]
[1]See Annexure A
Relevant Legal Principles
3 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.93(17) of the Act.[2]
[2]See Section 93(6) of the Act
4 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s.93(17) of the Act, which reads:
“In this section –
…
Serious injury means -
(a) serious long-term impairment or loss of a body function; or
… “
5 The part of the body said to be impaired for the purposes of paragraph (a) is the right upper limb, including the shoulder.[3]
[3]See T 4, L6-8
6 In order to succeed, the plaintiff must prove on the balance of probabilities:
(a)that the right shoulder injury suffered by her was a result of the transport accident;
(b)the requirements of the test set out in the seminal decision of Humphries & Anor v Poljak,[4] wherein a majority of the Full Court of Victoria stated:
“Subs(17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under para(a) and the latter under para(c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para(a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of para(c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs(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’?”[5]
(c)“Serious injury” as defined in sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment – however, the mental disorder cannot itself constitute or be the producer of the impairment of a body function;[6]
[4][1992] 2 VR 129
[5]See Humphries (op cit) at page 140. Also see Mobilio v Balliotis & Ors [1998] 3 VR 833
[6]See Richards v Wylie (2000) 1 VR 79
7 Senior Counsel for the plaintiff advised the Court that the plaintiff had been on a disability pension for some years prior to the transport accident and pecuniary disadvantage consequences were not a “consideration in this case”.[7]
[7]T 7, L27-28
8 When queried as to the issues, Senior Counsel for the defendant informed the Court that the position of the defendant was that if there was a right shoulder injury arising form the transport accident, such injury was de minimis in the circumstances and was not a “serious injury” within the meaning of the Act. Furthermore, Senior Counsel for the defendant asserted that it would be necessary on the part of the plaintiff to disentangle any alleged consequences from a shoulder injury with other medical conditions suffered by the plaintiff.
The Evidence of the Plaintiff
9 The plaintiff gave viva voce evidence that she was a disability pensioner and although could speak some English, she could not read English. An interpreter read part of her affidavit and the plaintiff identified such document as an affidavit that she swore on 13 October 2008.[8]
[8]See Exhibit 1 at page 7 PCB
10 She described only having neck, back, leg and headache pain “sometimes”. However, in relation to her right shoulder, the following evidence was given:
“Q: With your shoulder, is the position any better, any worse or about the same as it was two years ago?
A: It’s worse now.
Q: In what is it worse?
A: Pain.
Q: Could you just describe is it the intensity of the pain or the frequency of the pain or a combination of both?
A: The pain is deep inside and it comes often.
Q: But as far as when you say it is worse, are you talking about the intensity of the pain or the frequency or both?
A: It is more now. The pain is greater and it comes more often now too.”[9]
[9]See T 32, L9-18
11 The plaintiff also gave evidence that she had attended a psychologist, Mr George Tsironis, but ceased some months ago. She also ceased attending Dr D Mouratides, a psychiatrist, in 2009. She ceased attending these treaters because “it was always the same things we were talking about all the time”.
12 By way of her affidavit, the plaintiff gave the following pertinent evidence:
· She is a fifty-seven year old (born 17 December 1954) married woman with an adult daughter.
· She was born in Greece where she attended school for about four and a half years after which she assisted her family around the house before coming to Australia in 1974.
· Six months after her arrival in Australia, she commenced work as a process worker, working at various factories (taking some seven months off work for the birth of her daughter) and also ran a fish and chip shop with her husband in Ballarat. After returning to Greece for one year, she came back to Australia with her husband and ran a fish and chip shop in Frankston for about seven years. Her husband then bought a hydroponic farm growing tomatoes in Hastings where she assisted on occasion until the business was sold in 1998.
· She has not been gainfully employed since 1998.
· She has had dizzy spells and heart problems for many years, due to an irregular heart beat and underwent laser surgery on an artery in 2002.
· In 1982, she injured her right hand at work and ultimately received a lump sum of $15,000 which was used to help buy the fish and chip shop in Ballarat.
· She has had intermittent aches and pains in her neck, back, shoulders and knees over the years, together with anxiety problems after the death of her sister in 2001.
· She describes the circumstances of the transport accident in the following terms:
“On Wednesday, 4 October 2006 at about 9.00 am I was a front seat passenger in a car driven by my husband travelling north in Punt Road, South Yarra. The car stopped at the intersection with Gordon Crescent in a line of traffic. Whilst the car was stationary it was struck in the rear by another car. I was thrown forward in my seat. I believe I put my hands out to protect myself and they hit the dashboard or something. I remember pain in the fingers of my right hand which hit something in front of the car. I felt shaken up. The car had damage to the rear with a twisted bumper bar but was quite drivable.”[10]
[10]See Exhibit 1 at page 8 PCB
· She knew that her usual general practitioner, Dr Siky Siapantas, was on holidays and her husband drove her to Dr Andrianakis in Thornbury. That doctor saw her briefly and she made an appointment to see him on Friday, 6 October 2006.
· The next day she experienced pain in her neck which spread into her shoulders, back and legs causing her to see Dr Moraitis. She has seen Dr Moraitis subsequently every few months.
· On 6 October 2006, she attended Dr Andrianakis, who arranged for her to undergo an x-ray of her neck on the same day.
· On his return from holidays, the plaintiff attended Dr Siapantas on 9 October 2006 and he referred her for physiotherapy at his clinic but she ceased such treatment after about four attendances as the physiotherapy treatment made her pains worse.
· Dr Siapantas then referred her for acupuncture with Mr Lee, who she attended three or four times but his treatment also did not help.
· Dr Siapantas then referred her to another physiotherapist who again she saw about three or four times but again such treatment was of no help.
· Because of ongoing pain, particularly in her right shoulder and in her neck, Dr Siapantas referred her to the orthopaedic specialist, Mr Barrett, who arranged for an MRI scan of her neck and back on 9 March 2007. She was informed by Mr Barrett that he considered that an operation would not give any assistance.
· Seeking some improvement of her symptoms, she attended Dr Andrianakis on 1 March 2007 and continued with him as her general practitioner. He arranged for an x-ray and ultrasound of the right shoulder to be undertaken on 3 August 2007 after which he informed the plaintiff that an operation on her shoulder would be of no assistance. Dr Siapantas was of the same opinion.
· In March 2007, Dr Andrianakis referred her to a psychologist, Mr George Tsioronis, who she commenced attending once a fortnight. At the time of swearing the affidavit, she was attending Dr Siapantas about once a fortnight, Dr Andrianakis about once a week and Dr Moraitis every few months. She was taking six Di-Gesic tablets a day for her pain, Eleva and Antinex for her nerves and Temaze to help her sleep.
· She is right handed.
· She describes her symptoms and restrictions pertaining to her right shoulder in the following terms:
“11.My worse discomfort is in my right shoulder which pain spreads into my neck and also my right shoulder blade. … I have a burning feeling in the right shoulder all the time. When I move the right arm I get a pulling feeling in the shoulder. I also get the pulling feeling when my arm is unsupported by my side. I am more comfortable if my right arm is slightly across in front of me. If I am sitting down I put my right arm in my lap or an arm rest if it is not too high.
12I have intermittent discomfort down my right arm to my thumb and the two fingers next to it. I also have a separate pain in my neck and in my back. The pain in my neck causes headache when it is worse about once a week. The pain in my back seems to spread into my right leg.
13I cannot raise my right arm with my elbow extended above shoulder height without a sudden increase in pain. Raising my right arm in this way also seems to increase my neck pain. With my right elbow bent I can just get my hand to the top of my head if I bend my head. I can only just get my right hand behind my back but only at waist height.
14My right shoulder also hurts if it is pressed. If I bump my right shoulder it increases the pain as does any heavy pushing, pulling or lifting with my right arm. I can only carry about 2 kilograms of weight with my right arm and only below waist level. Above waist height I can only lift about half a kilogram. When walking I am careful not to swing my right arm. I try and keep my right elbow as close to my body as I can. I am always conscious of avoiding bumping my right shoulder and I tend to approach things with my left shoulder slightly in front. When the pain in my right shoulder is worse I hold my right arm with my left hand.
15If I do not move my right shoulder at all for about 30 minutes however it can become stiff and then more painful to move. At times I rub my right shoulder and right upper arm and the right side of my neck to ease the stiffness. …”[11]
[11]See Exhibit 1 at pages 10-11 PCB
· Whereas she used to drive a motor vehicle, she is unable to now because of discomfort in raising her right arm to hold the steering wheel and she also believes that she is too “anxious” to drive.
· She does not sleep well and cannot sleep on her right side because of increased pain with the pressure on her right shoulder. Although the Temaze gets her to sleep, she wakes up after a few hours when the medication has worn off and finds it hard to get back to sleep because of right shoulder discomfort and sometimes neck and back pain.
· In the morning her right shoulder is stiff and she has to do some slow rotation exercises which frees the shoulder up a bit and a shower which can help. When dressing she puts clothes on her right arm first and then pulls them on with her left hand and tends to wear loose fitting clothes which are easier to put on. She does not wear a bra now because of the extra pain of the strap over her right shoulder.
· Since the transport accident, she has been less active and her weight has increased from 83 kilograms to 90 kilograms, although she believes the medication she has been taking might also have affected this.
· Her husband and daughter live at home and since the transport accident her daughter has to do a lot of the cooking and she only now cooks simple things which do not involve stirring or any lifting.
· Her daughter also performs the vacuuming and cleaning the shower and toilet and hangs out the washing, which she is incapable of doing because of her right shoulder injury. Furthermore, she used to help to maintain the garden which is now performed by her husband and daughter.
· Prior to the transport accident, she liked to go fishing from the local pier but is unable to enjoy this activity because she cannot cast or wind the fish in on the line.
· Whereas prior to the transport accident, she used to go to the Greek cinema in Albert Park or to Southland about once a week, she rarely goes now and does not like being out because of the discomfort she feels and the embarrassment she has when rubbing her right shoulder.
· Since her injury, she believes she has become more anxious and depressed.
13 Under cross-examination, the plaintiff gave the following pertinent evidence:
· She confirmed that she was a front seat passenger in her husband’s vehicle (a small Alfa Romeo) when the transport accident occurred at approximately 9.00 am on 4 October 2006.
· At the time of the transport accident, she was wearing a lap sash seat belt which went across her left shoulder.
· For her, the actual collision was a “heavy collision” after which she got out of the vehicle.
· At the time of the transport accident, she was travelling with her husband from their home to a medical appointment for her husband and following the collision, and exchanging names and addresses, she proceeded to the medical appointment in her husband’s vehicle.
· She does not believe her husband was injured in the transport accident.
· When it was suggested to the plaintiff that she had not complained about her right shoulder to either Dr Andrianakis on either 4 or 6 October 2006 or Dr Siapantas when she first saw him, the plaintiff asserted that she had made such complaints.
· The plaintiff could not remember anything about 24 May 2007, the day on which it was put to her was the first time that she made a complaint to Dr Andrianakis about her right shoulder.
· It was put to the plaintiff that she had attended Dr Spiro Moraitis on many occasions prior to the transport accident. The following evidence was given:
Q:“The other doctor involved in this general period of time was Dr Spiro Moraitis?---
A: Yes.
Q: Moraitis was a doctor you had attended before the accident as well as after. Is that right?--
A: It was after the accident that I first saw him.
Q: I suggest that you had seen him before the accident as well?---
A: Perhaps you’ve made a mistake, sir. I don’t think so. I went to see him for an opinion.
Q: I want to put it to you that you first saw Dr Moraitis on 28 February 2000?---
A: I cannot remember seeing him. I don’t remember seeing him then.
Q: I won’t delay on it, he’ll be giving evidence later. I just want to put to you that you’d seen him on at least half a dozen occasions pre-accident?---
A: I do not remember having seen him at all.”[12]
[12]See T 39A, L15-29
·After a series of consultations were put to her, the plaintiff accepted that she had seen Dr Moraitis prior to the transport accident. The following evidence was also given:
Q: “… I want you to listen to the question. Before we had the adjournment to talk about the notes, I put to you on more than one occasion, that you had seen Dr Moraitis before 4 October 2006?---
A: And I could not remember, but now that you have mentioned Dr Gordon, I do remember.
Q: What I’m putting you is, you denied that, didn’t you, when I put it to you before?---
A: I denied it, yes, because I could not remember.
Q: Yes. I suggest to you that that was a false denial?---
A: I don’t think so. I don’t think so.”[13]
[13]See T 46, L22-31
·The plaintiff accepted that she attended the Bayside Chiropractic Clinic prior to the transport accident on 4 October 2006.
·The following evidence was given in relation to alleged complaints of right shoulder difficulties when attending the chiropractor:
Q: “… Did you complain of neck symptoms on 6 February 2003?---
A: I don’t remember seeing him for my neck.
Q: Did you go complaining of painful neck symptoms, a week after lifting?---
A: It may have happened but I don’t remember it.
Q: All right. Well, according to note, that’s what happened and that the chiropractor when examining you, examined your right shoulder?---
A: Mm’hm.
Q: That his note is this, ‘Right deltoid wasting’. The deltoid is that muscle that I’m indicating now?---
A: He didn’t tell me, nobody told me that.
Q: Were you aware that your right deltoid muscle, your right‑shoulder muscle wasted in February 03?---
A: No, I wasn’t.
Q: Did you complain of any problems with your right shoulder, to the chiropractor on 6 February 2003?---
A: For all of that area, I complained to him.
Q: When you say, ‘all of that area’ what, all of the shoulder and neck or what?---
A: When I fell, all my body started to hurt, so I had pains everywhere.
Q: Well, you mentioned falling. When did you fall?---
A: I don’t remember when I fell.
Q: Because the note that I read to you is ‘Acute neck pain, a week following, lifting’ not falling, lifting?---
A: I don’t know what to say.”[14]
[14]T 47, L15 – T 48, L8
·The plaintiff did not remember attending Dr Moraitis in 2006 before the transport accident. When it was put to her that she attended Dr Moraitis on 22 June 2006 complaining of back pain and neck pain, she responded that she had “a little ache and a pain here, a little ache and pain there but they go away”.
·The plaintiff accepted that prior to the transport accident she was taking painkilling tablets prescribed by doctors, although she was uncertain whether she was taking Brufen throughout 2004, 2005 and 2006 prior to the transport accident.
·When queried as to why she had been prescribed painkillers prior to the transport accident, the following evidence was given:
Q: “In the year before the accident, what pain were you suffering from that would have caused the doctor to prescribe that painkilling tablet?---
A: Aches and pains like I’ve said, my leg or another part of my body, headache, whatever, I don’t know.
Q: What other parts of your body, your legs, headaches, what else?---
A: Well, they come and go. I’m a human too, I’m a human too, they come and go.
Q: Might they have been neck pain?---
A: I’ve said that the pain will come either on the neck or somewhere else. I don’t where the pain comes, where the pain goes. When I’m in pain I go and see the doctor.
Q: I suggest to you, that in the year before the accident, you had headaches?---
A: Yes.
Q: I suggest you had neck pain?---
A: Yes, I had a little bit, yes.
Q: I suggest that you had pain in both shoulders?---
A: I may have had all these pains that you say, but they would come and they would go.
Q: Yes, I understand that. I suggest that you had pain in your arms?---
A: Sometimes, yes, like a neuralgia, it comes and goes.”[15]
[15]T 50, L15 – T 51, L5
·Prior to the transport accident, she had trouble with her heart through irregular heartbeat causing her to undergo cardiac surgery in 2002.
·Her daughter was in receipt of the carer’s pension which was initially granted to allow her daughter to care for her and her husband, although the plaintiff asserted that such pension ultimately was only in respect to caring for her husband.
·The daughter was receiving the carer’s pension in respect of the plaintiff as at the time of the transport accident.
·At the time of her cardiac condition, she was unable to perform vacuuming, mopping and the heavier things.
·Prior to the transport accident, she had back trouble which would “come and it would go”; pain in her right leg but these were not “chronic pains”; and she hurt her knee as a result of falling in a supermarket in 2003.
·As a result of the knee injury, she was ultimately referred to orthopaedic surgeon, Mr Philip Griffin.
·When queried as to whether or not she had a depressive disorder prior to the transport accident, the plaintiff stated that she did have “some troubles, when my sister died”. Her sister died in 2001 and Dr Siapantas gave her anti-depressant tablets.
·She had been referred to the psychiatrist, Dr Mouratides, in 2003.
·The plaintiff denied that she was an invalid prior to the transport accident.
·The plaintiff is an invalid pensioner.
·The plaintiff accepted that an application was made to Centrelink dated 19 June 2006 seeking that her daughter be paid a carer’s allowance in respect of the plaintiff and her husband. The plaintiff also asserted that leading up to the transport accident, her cardiac condition was such that she did not need her daughter caring for her.
·The plaintiff denied that she had been in any car accident, suffered any fall that had caused any injury since 4 October 2006.
·Since the transport accident, the plaintiff has attended Dr Siapantas on many occasions complaining of the symptoms in her back, her right side and her neck and in particular, pain coming from the right side of her neck to her shoulder.
·She disputed the suggestion that she first complained of pain in the right shoulder joint to Dr Siapantas on 28 August 2007.
·When it was suggested to the plaintiff that she cannot move her right arm much at all, she stated:
“There are days when I take it up. Back is difficult, I can’t take it back. Sometimes if there’s clothes to be taken off the line I might put my arm up, but it hurts and I put it back down. I can do things with it but I cannot take it up high as much as I can my left.”[16]
[16]T 159, L23-29
·She rarely goes shopping and if she does go shopping, it is with her husband who does the actual shopping. Sometimes she does take things off the shelf and puts it in the trolley but generally the item falls from her hand.
·She believed that she could carry up to about 2 kilograms in her right hand and although she can hold a litre of milk, she has difficulty holding two litres of milk because “it’s hard for me to make a fist, hold it tight with my hand”.[17]
[17]T 161, L24-26
·When queried as to why she could not make a fist, the plaintiff stated that it is the pain which comes from here and it goes into my fingers.
·She tends to brush her hair with her left hand, is able to remove food items from a trolley with her left hand and sometimes with her right hand.
·On a good day, she can go out in the garden with a watering can and water her garden, or more particularly a flower, although she uses her left hand for the watering can.
·She can use a small watering can with her right hand.
·She is unable to weed the garden, as she is unable to pull anything, but is able to do some weeding with her left hand.
·She has tried to use a fork with her right hand and if it is a bad day, she will “get it to half way and then I don’t take it any further, so I use my left”.[18]
[18]T 164, L23-25
·She considers that her right hand is weak, she has numbness in the fingers, pins and needles feeling in the whole hand and the pain in the hand comes “all the way down” from the neck.
·The problems with her right shoulder started on 4 October 2006 and since then she has “Strong pain, strong and it won’t go”.[19]
[19]T 165, L20
·Since the accident, she has difficulty in moving her arm and on some days there is a lot of pain with moving the arm.
·She agreed that since the transport accident, her hand has been numb and weak.
·She disputed that she went to Dr Siapantas and made no complaints over many visits of pain in her right shoulder, arm or hand.
·The plaintiff disputed that she has only really commenced complaining about her right shoulder since July 2010 when the case had to be adjourned because Dr Siapantas was away.
·The plaintiff asserted that she was referred to the orthopaedic surgeon, Mr Barrett, because of low back pain and pain in her right shoulder.
·Later in her cross-examination, the plaintiff did recall that she had been a passenger in a vehicle driven by her husband which was involved in a car accident. She described that she was sitting in the front seat and the car was stationary when another car hit from the rear. According to the plaintiff, she did not “get injured. I didn’t go to a doctor. I didn’t do anything.”[20]
[20]T 178, L24-27
·After it was put to the plaintiff that she attended Dr Siapantas on 21 October 2008 complaining of sharp needle pain in her back as a result of a motor car accident, the plaintiff explained such reference to the subject motor car accident, rather than any subsequent motor car accident.
·When queried as to whether or not she told Mr Tsironis that the pain sometimes goes down the left side into the left hand, she stated:
A: “When I get that really strong pain the right shoulder it spreads across and it goes all the way down to my left arm and hand but this comes and goes and this is not so important or so strong, it’s the right shoulder which is half of my body in the right shoulder which is the bad part.
Q: It affects all the fingers of the left hand when it happens?---
A: It’s like a numbness, it’s not really a pain.
Q: Sometimes does the pain spread from the neck and shoulders to your back between your shoulder blades?---
A: The problem is here at the shoulder and when it’s strong it goes all the way down half of my body down, my back to the low back.”[21]
[21]T 185, L23 – T 186, L3
·When queried about handling coins, the plaintiff asserted that she can hold coins in her right hand but nothing heavy.
·When queried as to whether her suffering and pain was the same as it was two and a half years ago, the plaintiff stated:
“The problem is that my pain is getting worse, it’s getting more and more, and it’s getting more and more a lot and that’s what I’m worried about, how it’s going to go in the future.”[22]
·She underwent physiotherapy on four or five occasions over recent times at the direction of Dr Siapantas at his clinic.
·She described taking four Di-Gesics and Panadol to help ease the pain in her right shoulder.
[22]T 188, L30 – T 189, L4
The Evidence of Ms Sofi Angel
14 Ms Sofi Angel (“Angel”), the daughter of the plaintiff, gave evidence and was cross-examined. She gave her occupation as that of carer and adopted an affidavit sworn by her on 8 July 2010.[23]
[23]See Exhibit 1 at pages 14-16 PCB
15 By way of her affidavit, Angel gave the following pertinent evidence.
· She lives with her parents and is paid a carer’s pension.
·She initially applied for the carer’s pension in about 2002 following her father suffering an accident at work on 5 January 2002 and her mother (the plaintiff) suffering a heart condition for which she underwent surgery.
·After the condition of the plaintiff improved, she notified Centrelink and thereafter the bulk of the carer’s pension was for caring for her father.
·Before the transport accident, she would assist minimally around the house and her mother did the majority of the work around the house (being careful not to overdo such work because of her heart condition). The plaintiff did most of the cooking and cleaning.
·Since the transport accident, she has done a lot more around the house in order to assist her mother. Although her mother sometimes tries to do some duties around the house, she cannot continue. They have to be finished for her.
·She puts the clothes in the washing machine to be washed and pulls them out of the washing machine as the plaintiff cannot pull wet clothes out of the washing machine, because such action causes pain in the shoulder which is “unbearable”. Before the transport accident, the plaintiff did most of the washing.
·Although the washing line can be lowered to hip height and the plaintiff tries on occasion to hang out clothes, such activity increases her pain as she needs to lift and stretch her arms to hang the clothes. She does the ironing, whereas the plaintiff did the ironing before the transport accident in 2006.
·When her mother has a shower, she helps her scrub her back on most occasions because she cannot reach with her left arm and there have been occasions where she has had to assist her mother with toilet activity.
·She helps her mother get dressed because she finds it difficult to do this, and finds it difficult putting on a jumper or putting on a jacket because of her arm pain.
16 Under cross-examination, Angel gave the following pertinent evidence.
·After discussion with her father the night before (with her mother in attendance) it was confirmed that her mother and father had been in a further car accident at the “start of this year” but had suffered no injury.
·She applied to become a carer in June or July 2002 after returning from Greece where she had been for some ten months. She returned from Greece because her father had suffered a work injury and her mother was suffering a heart condition.
·Although her mother did not recover from the cardiac condition, it was not as severe after the cardiac surgery and it was then that Centrelink was advised and the major payment for caring was in relation to her father, who suffered a “ruptured disc” when performing heavy lifting at work.
·It relation to the health of the plaintiff before and after the transport accident, the following evidence was given:
Q: “Other than that, her heart condition, there were no other health complaints from your mother?---
A: Well, she’s had a lot of small pains, like, her back, her neck, but they weren’t as severe as her heart at the time and nothing like she has now.
Q: So she has more pain now in her back and her neck. Is that correct?---
A: No, in her shoulder.
Q: You say that since the accident, you and your mother’s life must have changed dramatically then. Is that correct?---
A: Yes.
Q: So she’s not able to do any housework?---
A: She tries. She still tries but can’t finish anything.
Q: What can she do now that’s different than before she was doing in October in 2006?--
A: Well, she can’t take her clothes out of the machine any more. She can’t bathe by herself. She needs assistance in the toilet sometimes, which she never needed before. She can do a bit of …”[24] (incomplete)
[24]T 202, L21- T 203, L6
·Although she still has problems with her heart, it is not as bad now as it was because of the valve repair in 2002.
·The plaintiff is able to go to a supermarket and take things from the shelf with her right hand if it is a lower shelf.
·If she reaches at or above chest height, it hurts her shoulder.
·When queried as to when she commenced performing “lots of things” for her mother, the following evidence was given:
Q: “When after the accident did you start doing these things?---
A: I don’t know. It’s been a long time. I don’t remember. I just know that after the accident, I had to do a lot of things that I didn’t have to do before.
Q: Can you hazard a guess at when you started to do these things?---
A: A couple of months maybe. I don’t know.
Q: Was that because she was having pain in her shoulder. Is that correct?---
A: Yes.
Q: Did she have pain anywhere else?---
A: Well, her neck. When her shoulder aggravates everything, it goes up to her neck, it can go down to her hands, her legs and her lower back.
Q: So she complains of pain, does she, to you going up her shoulder?---
A: Yes, when the pain in her shoulder is very severe, that’s when it happens.
Q: It doesn’t go from the neck to the shoulder down the arm?---
A: No. From the shoulder. It starts from there. The pain is constant in her shoulder.”[25]
[25]T 205, L25 – T 206, L10
·Between 2002 and up to the transport accident, the plaintiff did complain of pain in her back “for some time”, intermittent pain in her legs, some pain in her right knee.
·She was aware that the plaintiff had a fall in the supermarket in 2003 and she hurt her right knee on that occasion.
·Prior to the transport accident, she was taking medication for pain, although she could not remember the type of medication. Prior to the transport accident, in October 2006, the plaintiff complained of pain in her low back, neck, her legs, her ankles, her knee, her arms, her fingers, but it was not anything as severe as the heart and although she continues to suffer those pains, they are “not as bad as the shoulder or the heart”.[26]
·The plaintiff does not drive a car and ceased driving immediately after the transport accident.
·The plaintiff has been on anti-depressant medication for a long time.
·She currently takes one Sertraline in the morning, six Di-Gesic on a bad day, or four on a not so bad day, with Panadol at night and she takes Temaze to help her sleep.
[26]T 208, L12-13
17 When re-examined, Angel gave the following pertinent evidence:
· When asked to compare pains in other parts of her body to the pain that she suffers in her shoulder, Angel gave the following evidence:
“Nothing compared to the shoulder. She can’t sleep because of the shoulder. She wakes up in pain. She is a pretty tough woman, she’s had a lot of disappointments and things in her life, a lot of things, you know, loss of children but nothing has floored her like this.”[27]
·Angel believed that her mother underwent some acupuncture and some physiotherapy of more recent times for a limited period.
[27]T 215, L13-18
The Evidence of Mr John Makrangelos
18 John Makrangelos (“Makrangelos”), the husband of the plaintiff, gave evidence and was cross-examined. He described himself as formerly being a farm manager and adopted an affidavit sworn by him on 8 July 2010.[28]
[28]See Exhibit 1 at pages 17-18 PCB
19 By way of that affidavit, Makrangelos gave the following pertinent evidence:
·He has been married to the plaintiff for thirty-three years.
·After the transport accident, he drove the plaintiff to his doctor, Dr Andrianakis in Thornbury, who saw them briefly and made an appointment for a couple of days later.
·Since the transport accident, the plaintiff complains of a lot of pain in her neck, back and in particular her right shoulder, which she complains is “very severe”.
·He notices that the plaintiff always has her right arm very close to her body and avoids lifting it very high.
·His daughter assists with most of the tasks around the house.
·Very often at night, he can hear the plaintiff moaning with pain and he estimates that she wakes about three to four times per night.
20 Under cross-examination, Makrangelos gave the following pertinent evidence
·When it was suggested that the transport accident on 4 October 2006 was not a “heavy collision”, he asserted that, “It wasn’t a small one either”.[29]
[29]T 271, L30
·The damage to his vehicle was about $2,000 or $3,000 and he was not injured in the transport accident.
·The plaintiff started to complain of pain a few hours after the accident when the body started to cool down. Such pain started at the neck and came down here and came the side here (witness indicating the neck, the shoulder and the right arm).
·When it was suggested that the plaintiff did not complain of shoulder pain shortly after the transport accident, the following evidence was given:
Q: “I’m putting to you that she did not complain to you of pain in her right shoulder?---
A: I say that she said to me something pulled from here like a nerve, something pulled.
Q: Did she describe where the pull was coming from?---
A: After the accident, what I remember was she said something pulled. Something pulled from here.
Q: When you were describing her complaints, you said it came from here and down the shoulder and down into the arm. Is that correct?---
A: Something was pulling down here, yes.
Q: From the neck down the shoulder into the arm. Is that correct?---
A: Yes.[30]
·Her complaints have continued ever since the transport accident.
·His wife is unable to use her right arm very well and it affects her ability to cook, perform vacuuming and hanging out washing.
·Prior to the transport accident, the plaintiff was not suffering from any depression or anxiety and since the transport accident, she has suffered a little bit of anxiety and depression.
[30]T 275, L23 – T 276, L3
21 During re-examination, Makrangelos gave the following pertinent evidence:
·Prior to the transport accident, the plaintiff did not complain about her right shoulder.
·When queried about her right shoulder after the accident, the following evidence was given.
Q: “After the accident – just listen to the question please – just tell His Honour what problems you noticed your wife had with her right shoulder?
A: She was complaining to me constantly about the pain and the pulling that she felt in the shoulder and that she couldn’t do things without pain and many times when I turned in bed, because I have to be very careful with my back because I’ve got the problem, my wife will say, ‘Oh, my arm’.
Q: To your observation, has the pain in the right shoulder got any better since the accident happened?
A: No.”[31]
·He identified the quotation in relation to repairs of his motor vehicle by Griffith Panel Works.[32]
[31]T 286, L10-17
[32]See Exhibit 3 at page 61-71 DCB
22 When queried by the Court, Makrangelos said he was unaware of any difficulties that his wife experienced with her right shoulder prior to the transport accident.
The Medical Evidence
23 Before referring to the medical evidence before the Court, it is convenient to list the various known investigations undertaken by the plaintiff both prior to and after the transport accident on 4 October, 2006. Such investigations consist of:
(a) In regard to the right shoulder:
(i)X-ray of the right clavicle on 31 May, 2004.
The report of the X-ray states:
“Degenerative changes seen at the AC joint and there is degenerative irregularity of the humeral greater tuberosity. …”[33]
[33]See Exhibit 1 at page 148 PCB
(ii)Ultrasound and X-ray of the right shoulder on 3 August, 2007.
The conclusion of such report was:
“Full thickness tear of the supraspinatus tendon. Bursal impingement occurring at approximately seventy degrees of abduction of the arm. AC joint degenerative change with associated small bony sub-acromial spur.”[34]
[34]See Exhibit 1 at page 41 PCB
(iii)MRI scan of the right shoulder on 25 May, 2010.
The conclusion of such report was:
“Focal full thickness tear of the anterior supraspinatus insertion possibly with an additional second tear below the ACJ. Moderate degenerative change ACJ with impingement upon the superior surface of the supraspinatus. Mild sub-acromial bursal effusion.”[35]
[35]See Exhibit 1 at page 86 PCB
(b) In regard to the spinal column:
(iv) X-ray of the lumbar spine on 25 January, 2001.
The conclusion of the report reads:
“The lumbar spine is tilted slightly to the left and there is a mild scoliosis concave to the right. There is mild degenerative of the L5/S1 facets. There were no significant superimposed bony abnormalities. The SI joints appear within normal limits …”[36]
[36]See Exhibit 1 at page 195 PCB
(v) An X-ray of the cervical spine on 27 December, 2001.
The conclusion of the report reads:
“The neck is flexed slightly concave to the left. Alignment appeared otherwise normal. There were no significant bony abnormalities demonstrated. The disc space, facets and foraminae appeared all within normal limits.”[37]
[37]See Exhibit 1 at page 193 PCB
(vi) X-ray of the thoracic spine dated 30 April, 2002.
The conclusion of the report reads:
“There is a mild thoracic scoliosis concave to the right and a mild thoraco-lumbar scoliosis concave to the left. There is some minimal anterior osteophytic at T7 and T8/9. The disc spaces remain well preserved.”[38]
[38]See Exhibit 1 at page 192 PCB
(vii) X-ray of the cervical spine dated 12 February, 2003.
The conclusion of the report reads:
“There is slight loss of the normal cervical lordosis. There were no bony abnormalities demonstrated. The disc spaces, facets and neural foraminae appeared all within normal limits.”[39]
[39]See Exhibit 1 at page 168 PCB
(viii)X-ray of the cervical spine, chest, right knee, both ankles and lumbar spine together with a CT scan of lumbar spine dated 14 April, 2004.
Such report concludes:
“Mild multi-level degenerative changes. No disc bulge or herniation. Central canal is of adequate dimension.”[40]
[40]See Exhibit 1 at page 37 PCB
(ix) CT scan of the lumbosacral spine dated 18 August, 2005.
The conclusion of the scan is:
“Mild broad based L4/5 disc bulge. Marked L5/S1 facet joint degeneration. Examination otherwise unremarkable.”[41]
[41]See Exhibit 1 at page 38 PCB
(x)X-rays of the lumbar spine, right knee and cervical spine dated 6 October, 2006.
In relation to the lumbar spine it is reported:
“Alignment is normal. Mild osteophytic lipping is seen at multiple disc levels. Vertebral body and intervertebral disc space heights are preserved…”
In relation to cervical spine it is reported that:
“Alignment is normal. No spinal or paraspinal abnormality is seen.”
In relation to the right knee it is reported:
“Minimal degenerative changes are seen in all three joint compartments.”[42]
[42]See Exhibit 1 at page 40 PCB
(xi)MRI scan of the cervical spine and MRI of the lumbar spine dated 9 March, 2007.
In relation to the MRI of the cervical spine it was concluded:
“Essentially a normal examination for age.”
In relation to the lumbar spine it was concluded that it was a:
“normal examination.”[43]
[43]See Exhibit 1 at page 20 ?Tape cuts off page number. Please check if P.20 is correct)
The Evidence of Dr Spiro Moraitis
24 Dr Spiro Moraitis gave evidence on behalf of the plaintiff and was cross-examined. He described himself as a legally qualified medical practitioner carrying on practice in Chapel Street, St Kilda.
25 He gave evidence that the plaintiff had been a patient of his since 1984 and that he had prepared a report in relation to the transport accident on 4 October, 2006.[44] He also gave evidence that he had seen the plaintiff on a few occasions after the transport accident up to 4 June, 2007. She did consult him on 11 June, 2008 but that related to a rash on her back.
[44]See Exhibit 1 at pages 25-26 PCB
26 In his report, Dr Moraitis notes that the plaintiff consulted him on 5 October, 2006 with multiple injuries consistent with a motor vehicle accident which was said to have occurred on 4 October, 2006. He diagnosed the plaintiff to be suffering from vertigo, discogenic lumbar pain, musculoskeletal ligamentous cervical sprain, strain of the right shoulder and scapular, strained left ankle, strained abdominal muscles and strained right thumb.
27 He notes that the plaintiff had a past history of degeneration of the spinal column, an L4/5 disc bulge, and a calcaneal spur. He considered that the transport accident had aggravated her pre-existing lumbar and cervical problems but the other diagnosed injuries were “new injuries”.
28 Under cross-examination, he gave the following pertinent evidence:
· He initially saw the plaintiff in 1984 when he treated her for gynaecological problems and again in 1985 and 2002 for similar problems.
· He obtained a history that on 1 September, 2003 she fell over injuring her eye and the right knee.
· On 8 April, 2004 she had some time off following a fall at a supermarket which most probably relates to the record of fall in September, 2003. At that time she complained of strain of her neck and back, left shoulder, chest and ankles, which she related to the earlier fall.
· X-rays of her ankles at that time showed a calcaneal spur.
· On 16 May, 2005 she was complaining of neck, back, left shoulder, left chest, right knee and ankle problems which she related to the earlier fall. At that time she was very anxious.
· On 22 June, 2006 the plaintiff complained of discogenic pain in the low back and neck. When asked what conclusion he reached, Dr Moraitis stated:
“I just put it down to degeneration of the spinal column recorded on the X-rays previously and in the right eye she had a little – what we call a pterygium, which is just a little skin over the right eye.” [45]
[45]T 134, L16- 20
·On 14 August 2006, she presented with anxiety.
·On 27 September 2006, she complained that since her fall in August 2003, she had pain in her right knee, neck and back and it was now getting worse, and also pain in the left knee and the right groin.
·The plaintiff attended Dr Moraitis on 5 October 2006, and gave the following history:
“She was sitting in the front seat, the passenger, and she was wearing a seat belt and they were struck from behind and the head went forward and then back and she sustained neck pain with stiffness of movement and the pain radiated down to the right shoulder.”[46]
[46]T 135, L28 − T 136, L2
· The examination at that time revealed blood pressure 120/180, tender over the cervical spine, right shoulder, right axilla and right scapular.
· When asked what his note in relation to the cervical spine which extends to the right shoulder and scapular area meant, Dr Moraitis stated:
A:“The lesion extends down.
Q:So it was your opinion that the right shoulder and scapular symptomatology was connected to a cervical stress?---
A:Yes.”[47]
[47]T 137, L23- 27
·On 22 January, 2007 the plaintiff complained of pins and needles of the chest, right leg as far as the right big toe and neck pain to the lower back.
·On 3 February, 2007 she complained of severe neck pain with reduced movement, tiredness, headaches, dizziness and she had pain on the right side of her abdomen.
·On 3 May, 2007 the plaintiff informed Dr Moraitis that she was having laser, probably through Dr Siapantas and that she was suffering from severe backache.
·On 4 June, 2007 she complained of joint and muscle pain and stiffness with dizziness and at the time of examination it was noted that she suffers panic attacks. At that time the doctor noted that she was suffering discogenic pain.
·On 11 June, 2008 the plaintiff complained of not being able to sleep and pains all over and the doctor concluded that she was suffering from myalgia, a rash on the back and some inner ear fluid.
·When queried as to whether the plaintiff had made complaints of right shoulder pain, the following evidence was given:
Q: “So then to summarise that, as far as 2007 and 2008 are concerned, in the six or seven consultations you had over that period, there was no complaint at all in respect of right shoulder pain or discomfort?---
A: I didn’t make a note of it but I am sure there was.
Q: You say that in terms of - had you followed your usual practice of recording complaints, there were certainly no recorded complaints?---
A: No.
Q: Of shoulder symptoms in respect of that period?---
A: Sure.
Q: Of course you don’t record normality but you do your level best to record complaints of the patient?---
A: Yes, sir.
Q: In the ordinary course of events, had she complained to you of, say, right shoulder pain on 11 June, 2008, you would have recorded that?---
A: Except it is recorded as myalgia which could have been …
Q: Yes. But all I’m putting to you that in the ordinary course of events you would have been particular enough to specify …?---
A: Yes.
Q: Right shoulder pain, correct?---
A: Yes, sir.
HIS HONOUR:
Q: What do you mean when you wrote the word “myalgia” …?---
A: Just pain over the muscle area but I don’t specify where.”[48]
[48]T 142, L15 − T 143, L6
29 When pressed by counsel for the defendant that Dr Moraitis received no complaint in relation to a discrete right shoulder injury Dr Moraitis replied:
“Not with this particular patient, I think I would have but I just didn’t record it.”[49]
[49]T 143, L27-29
30 Later, Dr Moraitis stated that going on “memory”, the plaintiff was complaining of injury to her neck, back, right shoulder and to a lesser extent, left shoulder. In particular, I refer to the following evidence:
HIS HONOUR:
Q:“Doctor, do you say you rely on your memory to some extent. I am right in saying, am I not – my notes at least, correct me if I am wrong – the last time you actually saw her was in June 2008, is that right?---
A:Yes, that’s right.
Q:You had been taken through your various consultations post the transport accident and indeed previous to the transport accident. Do you say you have a memory of this, do you?---
A:Do I - - - ?
Q:You have a memory of her coming in, making these complaints?---
A:Very much, yes. She and her husband used to come in.
Q:I see. Complaints in relation to the right shoulder?---
A:Yes. Neck, back and right shoulder.
Q:Do you say that was every time or sometimes or - - -?---
A:Just about every time, and I’m relying on my memory on that.
Q:So there was continuity of complaint in relation to the shoulder joint?---
A:Yes.
Q:There was continuity of complaint in relation to the severity of pain in that joint?---
A:And the neck and the back, yes.
Q:I’ll get to that in a minute. So she regularly complained of severe pain in her right shoulder joint?---
A:Yes.
Q:As opposed to referred pain?---
A:Yes.
Q:Do you agree you’ve not noted that at all?---
A:No, yes.”[50]
[50]T 146, L29−T 147, L20
31 Dr Moraitis accepted that it was probable that he conducted an examination of the right shoulder and that such examination involved testing the range of movement. When queried about there being note of the limitation of movement and that such movement was likely to full and pain free, Dr Moraitis said “I didn’t make a note of it. I remember that she was in pain””
32 Dr Moraitis gave evidence that it could not be assumed that there was a full pain free movement of the right shoulder notwithstanding that he had made no note of any restriction or pain. Dr Moraitis accepted that testing of the right shoulder would involve the supraspinatus tendon and if there was an abnormality in such tendon, you would expect there would be either complaint of pain or marked limitation of movement. His memory was that she was in pain and he suggested that the reason he would not have recorded such a finding is that he was “talking to her, discussing it, trying to reassure her, spending more time on that than anything else, which is my basic function.”
33 Under re-examination, Dr Moraitis was shown the ultrasound and the MRI of the right shoulder, both of which he indicated revealed a full thickness tear of the supraspinatus tendon. He accepted that such a tear would cause severe pain and limitation of movement, and in particular, limitation of abduction.
34 The Evidence of Dr Siky Siapantas
35 Dr Siapantas gave evidence on behalf of the plaintiff and was cross-examined. He described himself as a medical practitioner carrying on practice in Cheltenham since 2001.
36 He adopted reports prepared by him dated 6 November 2007[51] and 13 May 2009.[52]
[51]See Exhibit 1 at pages 27-29 PCB
[52]See Exhibit D at pages 16-21 DCB
37 In the first report, Dr Siapantas notes that the plaintiff attended his practice on 9 October 2006 in relation to the transport accident which occurred on 4 October 2006. He records the history and examination findings in the following terms:
“On 4 October 2006 she was in a stationary car when she was struck from behind after she had been waiting at the lights for some time. She stated that she felt a jolt and there was a movement forward. She stated that she did not feel much in the way of pain. When seen on 9 October she stated she was experiencing pain in her neck and lower back.
Examination did not reveal any major new abnormality. However, she was tender in most places of her cervical, thoracic and lumbar spines. There was also tenderness of her right knee. X-rays were ordered of these regions and all showed mild degenerative changes, consistent with previous findings.
Mrs Makrangelos was advised that the findings were consistent with suffering soft tissue injuries to pre-existent degenerative regions of her spine and right knee.”[53]
[53]See Exhibit 1 at page 27 PCB
38 Dr Siapantas noticed that there was difficulty managing her condition and she was unable to try any anti-inflammatory medication as she feared that these may affect her heart condition. She attended two physiotherapy sessions and found that these caused more pain and she ceased.
39 In March 2007 she was referred to the orthopaedic surgeon, Mr Barrett, who arranged an MRI of her cervical and lumbar spines which were unremarkable.
40 In particular, Dr Siapantas notes that in May 2007 she stated that the pain in her right neck radiated to her right shoulder and arm and such complaint continued through to 3 August 2007 when she was sent for an ultrasound for her right shoulder. After being advised of the result of the ultrasound (full thickness tear of the supraspinatus tendon) the plaintiff apparently advised that she did not want to undergo any surgery and would try to manage her pain as best she could.
41 In particular, Dr Siapantas states:
“In relation to your specific questions, the only condition that may be related to the car accident on 4 October 2006 would be the right shoulder injury. Mrs Makrangelos only complained of symptoms of pain in the right shoulder and neck sometime after the accident. It would be likely that the injury was precipitated by the accident but only became fully evident some time later (May-June 2007).”[54]
[54]See Exhibit 1 at page 28 PCB
42 In his later report, Dr Siapantas notes (as at May 2009) that the plaintiff had difficulty with performing normal daily activities due to consistent complaints of pain in her lower back, neck and right shoulder area. He confirmed that the plaintiff had been treated for right knee, lumbar and cervical pain prior to the transport accident. Dr Siapantas also notes that the plaintiff has been diagnosed with chronic adjustment disorder with depression and was also suffering from post traumatic stress disorder.
43 He notes “considerable fixation on her condition”. In particular, Dr Siapantas notes that the plaintiff has continued to be symptomatic of her injuries to her neck and back.
44 Dr Siapantas gave evidence that since the report dated 13 May 2009 he has continued to treat the plaintiff and over that period she has made complaints in relation to her right shoulder which probably have become worse because there seems to be more continuing focus of pain in that area. Dr Siapantas was shown copies of the ultrasound dated 3 August 2007 and the MRI of the right shoulder dated 25 May 2010, after which he commented that the MRI suggested there was a second tear just below the acromioclavicular joint. When asked what this may indicate, Dr Siapantas stated:
A:“From my experience an ultrasound may not show the second tear whereas an MRI is most likely to show so it is possible it didn’t show on the original ultrasound. I would suggest it was probably there at that time. From my clinical experience with Mrs Makrangelos she has been quite incapacitated and it would be unlikely that she would have been able to do anything to extend the injury any further.
Q:Is her incapacity inconsistent with the radiology?---
A:That’s difficult to say. I think whether her anxiety ... that she has, there is possibly a sensitisation of her symptoms making them more severe.”[55]
[55]T 68, L12-23
45 When asked what her anxiety emanates from, Dr Siapantas asserted that the plaintiff has always been an anxious person even before he started seeing her. He accepted that some anxiety stems from the pain in the shoulder.
46 Under cross-examination, Dr Siapantas gave the following pertinent evidence:
· At the time of his initial consultation on 9 October 2006, Dr Siapantas noted “damage not apparent visually” in relation to the car in which the plaintiff was seated.
· Also, on 9 October 2006, Dr Siapantas accepted that there was no specific complaint of right shoulder symptoms and that he would have made a full physical examination of her on that occasion. The result of such examination was that she had suffered soft injuries to her pre-existing degenerative regions in her spine and right knee.
· At the next consultation on 18 October 2006, the plaintiff was complaining of “many symptoms” in relation to her back, right side and neck. In particular, the plaintiff complained that there was pain radiating to her right shoulder from the right side of her neck. Dr Siapantas accepted that there was no specific complaint of injury to the right shoulder.
· On 22 May 2007 she complained of right sided pain and numbness of arm but no complaint of shoulder injury.
· Dr Siapantas accepted that the first time the plaintiff complained of symptoms in the right shoulder was on 28 August 2007.
· Dr Siapantas accepted that he would have seen the plaintiff about 20 times from the date of the transport accident up until her first complaint of shoulder pain on 28 August 2007.
· Dr Siapantas spoke the same language as the plaintiff.
· The plaintiff was again seen by Dr Siapantas on 5 September, 25 September and 23 October 2007 with no complaint of right shoulder pain.
· On 7 November 2007 there was a complaint of right shoulder pain.
· Other than the complaints of shoulder pain on 28 August 2007 and 7 November 2007 thereafter followed another seven or eight consultations where the complaints related to headaches, back pain, leg pain and neck pain but no reference to right shoulder pain.
· Following a letter from the solicitors for the plaintiff to Dr Siapantas on 4 March 2008, she complained of right shoulder pain when examined on 11 March 2008.
· Dr Siapantas agreed that there were two complaints of right shoulder pain in 2009 being 4 August and 8 December.
· In 2010 there was a complaint of right shoulder pain on 28 April 2010.
· There are complaints of right shoulder pain and problems on 9 June, 22 June, 6 July and 19 October 2010.
· Dr Siapantas accepted that there was intermittent complaints of right shoulder pain up to July 2010. In particular, the following evidence was given:
Q: “Very. Would I, would suggest – I would suggest if we exclude the period from July that in all there were 86 consultations with you from 4 October to 25 May 2010, a total of 86, and there was a mention of the shoulder in only 15 of those consultations. Would you accept that?---
A: Yes.
Q: As far as 2010 is concerned there was virtually, I think, only one complaint of right shoulder pain throughout 2010 up to June of 2010; that is from 22 January 2010 to the month of June 2010 there were no complaints of right shoulder pain?---
A: 28 April 2010.
Q: Yes. I’m sorry. I should have mentioned to you. Apart from 28th, which was involving the neck and the arm?---
A: Yes.
Q: Does it strike you as being strange that it was only the one complaint of right arm or shoulder in the first six months of this year and then quite a few dating from June?---
A: Strange in what way?
Q: An unusual clinical picture?---
A: Not really.”[56]
[56]T 84, L1-18
· Dr Siapantas accepted that the first time he received a complaint of shoulder pain referable to the joint itself as opposed to referred pain was on 28 August 2007.
· Dr Siapantas accepted that for many years prior to the transport accident the plaintiff had a “significant psychiatric disability”.
· When queried as to why he had confined himself to neck and back complaints in his later report, rather than the right shoulder, Dr Siapantas rejected the suggestion that he regarded the right shoulder as being insignificant or an intermittent symptomatic injury. In particular, Dr Siapantas stated:
“I didn’t consider anything because I failed to diagnose the actual condition for a considerable time due to her anxiety disorder and aches and pains everywhere else.”[57]
[57]T 91, L6-11
· Dr Siapantas accepted that there were complaints pertaining or at least, involving the right shoulder on the following occasions prior to the transport accident:
§ on 11 February 2003 when it was noted “over two weeks of pain in neck and right shoulder”;
§ on her referral to the Bayside Chiropractic Clinic after which, the chiropractor, Dr Terence Hain, wrote to Dr Siapantas noting that the plaintiff was complaining of referred pain to the right shoulder from the neck;[58]
[58]See Exhibit E
§ on 18 August 2003, the plaintiff complained of pain in the right arm;
§ Dr Siapantas accepted that one of the other doctors at the clinic referred her for an x-ray of the right clavicle on 31 May 2004;
§ on 15 March 2005 she attended Dr Siapantas with the complaint “arm is weak, right shoulder pain” and there is a further note that there is osteoarthritis at the AC joint and shoulder joint.
· Dr Siapantas accepted that he signed a document on 19 June 2006 which was an application for the daughter of the plaintiff to be certified as an appropriate carer for her mother. At that time, the disability for which he was certifying was her cardiac disability. The doctor did not know whether or not the application form was ultimately submitted to Centrelink.
· Dr Siapantas accepted that in June 2006 the plaintiff was a “significantly disabled woman”.[59]
[59]T 97, L21-23
· When queried about the extent of her claimed organic disabilities, the following evidence was given:
Q: “The fact is, if she’s got organically based disabilities, they are very minor in extent?---
A: In relation to these conditions or…
Q: Yes. In relation to her presentation I am asking you to distinguish between a psychologically based problem, and organically based problem. I’m putting to you that organically there is nothing much wrong with this woman, whether it’s her neck, whether it’s her back, whether it’s her shoulder. What do you say to that?---
A: No.
Q: Do you agree that whatever the organic basis is, it’s completely overshadowed by psychological reaction?---
A: Yes, it is difficult to determine it certainly.
Q: That’s not what I’m putting to you. I’m putting to you that even assuming that she’s got an organically based problem with her neck, back or shoulders – even assuming that – the psychological status of this person completely overshadows any organic component to her presentation …?---
A: The way you’re asking it I can only answer yes.”[60]
[60]T 101, L7-24
47 Over the period from 15 March 2004 up to the transport accident on 4 October 2006, Dr Siapantas had prescribed at various times Tramal (which he accepted was a powerful narcotic analgesic) for spinal difficulties, Celebrex (an anti-inflammatory) for bodily pain, Lovan (which he described as an anti-depressant), Brufen (an anti-inflammatory), Panamax (which he accepted was a lesser analgesic preparation) and Temazepam (which he described as a sleeping tablet).
48 Dr Siapantas accepted that prior to the transport accident the plaintiff was suffering a psychiatric disability which was “significant”.
49 Under re-examination, Dr Siapantas gave the following pertinent evidence. When queried about his filling out of the application for the daughter to be appointed a carer in June 2006, Dr Siapantas considered that he should have added “osteoarthritis of the right shoulder”.
50 Dr Siapantas considered that the plaintiff had her psychiatric condition prior to her attending upon him in 2001.
51 Dr Siapantas accepted that the absence of a note of complaint made by the plaintiff does not necessarily mean that such a complaint was not made.
52 Dr Siapantas believed that in relation to her right shoulder, her psychological problems were overwhelming to the physical problems. In particular, the following evidence was given:
Q:“… What is the basis for your opinion that the psychological aspect of it overrides the organic or pathological aspect?---
A: The clinical picture that’s been presented over a period of time of the person who has anxiety and depression which unfortunately sensitises the nerve endings and causes excessive symptoms of pain.”[61]
[61]T 114, L11-17
53 Dr Siapantas concluded his evidence with the following questions and answers:
HIS HONOUR:
Q:“Dr Siapantas, insofar that there is an intrinsic shoulder injury, what’s the nature of that injury?---
A: In her case?
Q:Yes, in her case, as far as you’re concerned?---
A:The tear of the tendon.
Q:The tear of the tendon?---
A:Yes.
Q:So, in relation to the degenerative condition, do you say that plays any role?---
A:It probably adds to it but that’s the condition that develops over time and may be exacerbated by the accident but the tear of the shoulder is what causes significant incapacity of not being able to lift it about shoulder height.
Q:Once the tear occurs, do you expect symptoms to be consistent and ongoing?---
A:Yes.
Q:Do you expect restrictions of movement to be consistent?---
A:You expect it to be consistent but it may fluctuate. There may be times when the ability to move it a little bit more occurs and then once that happens then the following day the pain related to that then causes significant incapacity and an inability to move.
Q:If indeed there was a tear, as you say, resulting from the transport accident or some aggravation of the tear or something like that, as I understand your notes, the first time you got any history of any intrinsic shoulder injury was at August 2007. Is that correct?---
A:Yes.
Q:Indeed, as I think it was put to you over that period of time, there was a number of attendances and various complaints were made. Would you have expected restrictions of movement in the right shoulder over that period of time if there was a tear during that period of time?---
A:Not necessarily.
Q:Would you expect continuous complaints of pain if there had been a traumatic tear of the tendon at that time?---
A:Continuous pain – it would fluctuate.
Q:I see. Fluctuate in what sense?---
A:What. Sometimes severe, sometimes not severe? Yes … .”[62]
[62]T 125, L6 – T 126, L10
The Evidence of Dr Peter Andrianakis
54 Dr Peter Andrianakis, general practitioner, gave evidence on behalf of the plaintiff and was cross-examined. Although he had not prepared a report, both parties had access to his clinical notes.
55 In evidence-in-chief, he gave the following pertinent evidence:
·He first consulted with the plaintiff on 6 October 2006 and obtained the following history:
“Patient was a front-seat passenger on 4/10/06. Stationary car hit from behind. Has whiplash injury, neck pains and stiffness, right shoulder pains and tender. Got scared sudden impact. Lower back jammed into car seat. Tender L4-5/S1. Pains into buttocks. Right chest wall pains. Tender right axilla. … Decreased range of motion of the right shoulder. Patient fall in Oakleigh. Left neck injury. Bilateral elbow pains. Right knee twisted in car when hit. Left ankle pains, headaches and dizziness.”[63]
[63]T 221, L17-28
·Dr Andrianakis found decreased range of movement of the right shoulder as a result of clinical observation by him.
·Dr Andrianakis next examined the plaintiff on 9 October 2006 when, pursuant to his request, the plaintiff brought previous x-rays including that of her right clavicle by Dr Wong, dated May 2004, a chest x-ray dated November 2005, and CT scans of her lower back dated May 2004 and August 2005.
·The plaintiff was next seen on 21 August 2006 when she complained of a cough and a wheeze and she was treated with an antibiotic.
·The plaintiff attended on 24 November 2006 complaining of:
“Patient unwell when attending physiotherapy. … She had right-sided neck pains and stiffness. Tenderness in the region and reduced range of motion of her neck. Feeling unwell, tired and fatigued. Unable to cope with activities of daily living. Shoulder pains and stiffness. Feels upper back paraesthesia, numbness. Reduced mobility. Lower back pains and stiffness. Has been taking Panamax and Temaze. … Cannot take stronger medications…”[64]
[64]T 223, L6-15
·On 12 February 2007, the plaintiff complained of:
“Patient complained of neck pain and stiffness. Right-sided neck pains. Head pains now for three weeks. Pains from the accident. Right hip pain with reduced range of motion, worse with extended rotation, adduction and flexion. Tried physiotherapy. Was causing her pain. Low back pains and stiffness. Tender at L4-5/S1.”[65]
[65]T 223, L24-31
·Dr Andrianakis referred the plaintiff to the orthopaedic surgeon, Mr Barrett, mainly for neck pains and back pains. At that time, Dr Andrianakis assumed that the pain in her shoulder was referred pain from her neck.
·On 1 March 2007, the plaintiff complained of:
“The patient was getting headaches, feeling unwell, tired and fatigued, was getting low back pain. Seen by Mr Barrett and was to have an MRI scan. She was anxious, concerned. Tender L4-5/S1. Not driven since the accident. Epigastric pain.”[66]
[66]T 224, L13-17
·On 22 March 2007, the plaintiff complained of:
“Patient with neck pains and stiffness. Lower back pain and stiffness. Tender L4-5/S1. Poor mobility. The MRI scan was clear. Seen by Mr Barrett. We discussed his letter. Patient remains in pain, concerned, anxious and depressed.”[67]
[67]T 224, L18-22
·On 26 April 2007, the plaintiff complained of:
“Patient with severe pains (indistinct) neck pains. Feels like she has broken glass in her neck. Difficulty breathing, headaches, stiffness, poor mobility. Right hand pain, especially thumb and index finger. Reduced grip strength.”[68]
[68]T 224, L25-30
·On 24 May 2007, the plaintiff complained of:
“Last week while sitting in the car got numb along entire right side, upper and lower limb. Patient got very scared and anxious. Patient shifted to the left, feeling better, numbness ceased. Patient got massive migraine while in bed the other night. Got up, went to the toilet, headache got worse. Neck pain, stiffness, right shoulder pains, reduced range of motion. Patient getting depressed and unwell. Complaining right neck. Feels like there’s broken glass under the skin. Patient anxious and lethargic. For review bloods, high cholesterol, glucose. Discuss diet. Review in six weeks.”[69]
[69]T 225, L1-12
·On 24 July 2007, the plaintiff complained of:
“Patient complaining of right upper chest pins and needles. Tender. Neck pains and stiffness. Headaches. Unwell. Complaining lower jaw numbness.”[70]
[70]T 225, L18-20
·On 4 September 2007, the plaintiff complained of:
“Patient for review, right shoulder pains, reduced range of motion, reduced power, neck pains and stiffness, back pains, headaches, tender on the right neck, stiffness, refer to acupuncture.”[71]
[71]T 225, L28 – T 226, L1
·On 30 October 2007, the plaintiff complained of:
“Patient with right shoulder pains, right hand pains and paraesthesia, getting right-sided body pains, lower back pains and stiffness, left lower limb pains, pains radiate down the back of the left leg. Poor mobility, getting depressed and fatigued.”[72]
[72]T 226, L3-8
Dr Andrianakis referred the plaintiff for a CT scan of her lumbar spine.
·On 21 February 2008, the plaintiff complained of the following:
“Patient with lower limb pains and weakness, right side worse, aches and pains, stiffness, patient very depressed and unwell, right shoulder pains, dizzy, headaches, weak and tired, medications cause her nausea and vomiting, neck pains and stiffness right upper limb and hand pains and paraesthesia.”[73]
[73]T 226, L23-28
·Dr Andrianakis arranged an ultrasound of the right shoulder which was completed on 3 August 2007. After receiving the ultrasound report, Dr Andrianakis concluded that the cause of her pain in the right shoulder was a tear to the supraspinatus tendon and the degenerative change in the AC joint.
·When asked whether her presentation was consistent with the radiological findings, Dr Andrianakis stated:
A: “In hindsight, yes. At the time because of the injuries of the neck ‑ I’ve got to explain I was not this patient’s usual doctor at the time so I did not investigate fully in order not to step on another doctor’s toes so when she first presented to me Dr Siapantas is looking after her so I wasn’t going to ask for further – if that was me I would have asked for investigation a lot earlier, is what I’m trying to say.”
Q: Investigation of the shoulder?---
A: Shoulder, correct.
Q: Bearing that in mind was her clinical – first of all were clinical findings consistent with what was disclosed on the radiological examinations?---
A: Yes, it was, yes, correct.
Q: Was her presentation consistent with those findings?---
A: Yes.”[74]
[74]T 220, L4-17
56 Dr Andrianakis gave the following evidence in relation to what he considered to be the relationship between the transport accident and the tear o the supraspinatus tendon:
Q:“Doctor, you seeing her a day or so after the accident now knowing the ultrasound, or the ultrasound which you arranged - - -? ---
A:Yes.
Q:What do you say as to the connection between the conclusion found on the ultrasound and the car accident itself?---
A:It’d be consistent, Your Honour, because it takes trauma to tear a muscle in the shoulder and at the time depending on how the accident occurred I think it’s consistent with her shoulder being torn at the time, the muscle.
Q:So I understand this that the full thickness tear to the supraspinatus tendon as found on the ultrasound and confirmed on the MRI you’ve put it as cause and effect for the transport accident, do you?---
A:I would unless there’s another trauma that would be the one.”[75]
[75]T 228, L19-T 229, L 2
57 Dr Andrianakis last saw the plaintiff on 25 June 2008.
58 Under cross-examination, Dr Andrianakis gave the following pertinent evidence:
·Dr Andrianakis accepted that the x-ray of the right clavicle on 31 May 2004 demonstrated that there was clavicular abnormality with degenerative change at the AC joint and the degenerative process in the joint itself.
99 On 1 September 2003, Dr Moraitis recorded a history of the plaintiff falling over causing injury to her eye and right knee. In April 2004, May 2005 and June 2006, she was complaining of various symptoms involving discogenic pain in the low back and neck, pain in her left shoulder, right knee and ankle problems which she related to the earlier fall. Furthermore, she was very anxious.
100 On 14 August 2006, she presented with anxiety and on 27 September 2006 (one week prior to the transport accident), she gave a history of pain in her right knee, neck and back, which was getting worse, and also pain in the left knee and right groin.
101 When asked as to what his notes meant in relation to the cervical spine pain extending to the righter shoulder, Dr Moraitis accepted that it was his opinion at that time that the right shoulder and scapular symptoms were connected to the neck stress. Dr Moraitis saw her on six or seven occasions extending up to 11 June 2008, during which time he accepted that he did not make a note of any complaint at all in respect of the right shoulder.
102 Later in his cross-examination, Dr Moraitis stated that he thought he would have received complaints in relation to a discrete right shoulder injury but “just didn’t record it”. Later, in his cross-examination, Dr Moraitis stated that going on “memory”, the plaintiff was complaining of injury to her neck, back, right shoulder and, to a lesser extent, left shoulder. In particular, when queried by the Court in relation to having such a memory, he asserted that he had a memory of neck, back and right shoulder complaints occurring “just about every time”. In particular, he asserted there was a continuity of severe pain in the right shoulder joint as opposed to referred pain. Furthermore, Dr Moraitis gave evidence that it could not be assumed that there was full pain free movement of the right shoulder, notwithstanding he had made no note of any restriction or pain. Again, Dr Moraitis asserted that it was probable that he conducted an examination of the right shoulder and that such examination involved testing her range of movement, he would not have recorded such a finding because he was “talking to her discussing it, trying to reassure her”.
103 He considered that the transport accident had aggravated her pre-existing lumbar and cervical problems, but caused the “new” right shoulder injury.
104 I formed the view after hearing all of the evidence of Dr Moraitis that he was not a reliable witness to the extent of anything he asserted which was not borne out by his recorded notes. I find it remarkable that if there was continual complaints of pain in the shoulder (rather than referred pain from the neck) as asserted by Dr Moraitis, and that examination of the right shoulder revealed restriction of movement, that not one complaint or restriction was recorded during the six or seven consultations following the transport accident.
105 Dr P Andrianakis was the second general practitioner that the plaintiff consulted with after the transport accident. She attended Dr Andrianakis on 6 October 2006, on which date he obtained a history that amongst other complaints she had right shoulder pains and tenderness in the right shoulder area, together with a decreased range of motion of the right shoulder. Dr Andrianakis continued to see the plaintiff reasonably frequently up until his last consultation on 25 June 2008.
106 When Dr Andrianakis next examined the plaintiff on 9 October 2006, the plaintiff brought previous x-rays including that of the right clavicle undertaken in May 2004 and CT scans of her low back in May 2004 and August 2005. When seen on 24 November 2006, she complained of shoulder pains and stiffness together with pains and stiffness in both her neck and back. Similar complaints were made on 24 May 2007, 4 September 2007, 30 October 2007 and 21 February 2008. Dr Andrianakis arranged for the plaintiff to undergo the ultrasound of the right shoulder on 3 August 2007. He accepted that in hindsight, her clinical findings in relation to the shoulder were consistent with the ultrasound findings. When queried as to the relationship between the transport accident and the occurrence of the tear found on the ultrasound, Dr Andrianakis stated:
“It would be consistent, Your Honour, because it takes trauma to tear a muscle in the shoulder and at the time depending on how the accident occurred I think it’s consistent with her shoulder being torn at that time, the muscle.”
107 Dr Andrianakis referred the plaintiff to the orthopaedic surgeon, Mr Barrett, in early 2007 for examination of her neck and back problems. Dr Andrianakis commented that Mr Barrett, when writing to him about the examination, noted the plaintiff complained of increasing pain in her neck radiating down towards the right shoulder and that she was not prepared to move her right shoulder.
108 When it was put to Dr Andrianakis that if the transport accident involved a modest blow from behind, with the plaintiff restrained by a seat belt, with no evidence of her arm waving round or blow to the shoulder, such would be an unusual way of sustaining a full thickness tear to the supraspinatus tendon, Dr Andrianakis accepted such proposition “if that’s what happened”.
109 I found Dr Andrianakis to be an impressive witness, willing to make reasonable concessions when appropriate. Curiously, he informed the Court that he also suffered a tear to the supraspinatus tendon and was aware that if the tendon was not utilised through movement of the shoulder, pain symptoms are reduced. Dr Andrianakis accepted that it was “possible” that the tear demonstrated by way of the ultrasound may have been there at the time of the x-ray of the right clavicle. He also accepted that it was “possible” that any shoulder pain suffered by the plaintiff was referred from the neck as he had originally diagnosed.
110 Dr Siapantas was the third general practitioner consulted by the plaintiff after the transport accident. Dr Siapantas was her normal general practitioner who she had been attending since 2001 and who she knew was away at the time the transport accident occurred. The first time she consulted with Dr Siapantas after the transport accident was on 9 October 2006, some five days after the transport accident.
111 In his initial report dated 6 November 2007, Dr Siapantas notes that he obtained a history from the plaintiff on 9 October 2006 that she was experiencing pain in her neck and low back. In particular, he notes that examination did not reveal any major new abnormality and she was tender in most of places of cervical, thoracic, lumbar spines and the right knee. X-rays were ordered of these regions, which showed mild degenerative changes consistent with previous findings. Dr Siapantas considered that the plaintiff had suffered soft tissue injuries to pre-existing degenerative regions of her spine and right knee.
112 At the time of writing that report, Dr Siapantas was aware of the ultrasound undertaken of the plaintiff’s right shoulder on 3 August 2007, which revealed the full thickness tear of the supraspinatus tendon. In his initial report, Dr Siapantas notes that in answer to specific questions from the solicitor that the only condition that “may be related” to the transport accident would be the right shoulder injury. However, he noted that the plaintiff only complained of symptoms of pain in the right shoulder and neck after the accident and that it would be “likely” that the injury precipitated by the accident had only become fully evidenced some time later – May/June 2007.
113 Under cross-examination, Dr Siapantas accepted that over the period from the transport accident to 25 May 2010, there was a total of 86 consultations with mention of the shoulder in only 15 of those consultations. Furthermore, from the beginning of 2010 to June 2010, Dr Siapantas accepted there was only one complaint on 28 April 2010 in relation to the neck and arm, but thereafter there were relatively frequent complaints of right shoulder pain and problems.
114 In particular, Dr Siapantas accepted that the first time he received a complaint of shoulder pain referrable to the joint itself as opposed to referred pain from the neck, was on 28 August 2007.
115 Dr Siapantas maintained in his evidence that there was a relationship between the transport accident and the right shoulder injury and in particular stated that he “failed to diagnose the actual condition for a considerable time due to her anxiety disorder and aches and pains everywhere else”.
116 Dr Siapantas also gave evidence that prior to the transport accident the plaintiff had complained of right shoulder pain and problems on the following occasions:
(a)On 11 February 2003, when it was noted “over two weeks of pain in neck and right shoulder”.
(b)After referral to the Bayside Chiropractic Clinic the chiropractor (Dr Terence Hain) wrote to Dr Siapantas noting the plaintiff was complaining of referred pain to the right shoulder from the neck.
(c)On 18 August 2003, the plaintiff complained to Dr Siapantas of pain in the right arm.
(d)That one of the other doctors at the clinic of Dr Siapantas referred the plaintiff for an x-ray of her right clavicle on 31 May 2004.
(e)On 15 March 2005, the plaintiff attended Dr Siapantas with the complaint of “arm is weak, right shoulder pain” at which time it was noted that there is osteoarthritis at the AC joint and shoulder joint.
I also make reference to Exhibit F which are the notes from Dr Moraitis which contain a letter from a Dr Victor Gordon to Dr Moraitis dated 28 May 2003 (dealing with gynaecological problems) wherein Dr Gordon notes that the plaintiff has had a painful condition affecting her arms and shoulders for some years.
117 Dr Siapantas also gave evidence how he had completed the form for submission to Centrelink for the daughter of the plaintiff to renew her carer’s pension in June 2006. The major factor for the need for care was the plaintiff’s ongoing disability through her cardiac condition, but also noted that she had symptoms in her spinal column, right knee and other parts of her body. Dr Siapantas accepted that in June 2006, the plaintiff was a “significantly disabled woman”. The evidence also established that over the period from 15 March 2004 up to the date of the transport accident, Dr Siapantas had prescribed at various times Tramal (for spinal difficulties), Celebrex (for bodily pain), Lovan (an anti-depressant), Brufen (an anti-inflammatory), Panamax (an analgesic preparation) and Temazepam (a sleeping tablet).
118 Furthermore, Dr Siapantas accepted that prior to the transport accident, the plaintiff was suffering a psychiatric disability which was “significant”.
119 I have made reference earlier in this judgment to the various medico-legal reports obtained by the parties and will not repeat the substance of them and only note that the earliest medico-legal report was in August 2008, well after the transport accident.
120 Such reports, at least in relation to the issue of causation, are very dependent on a correct history being given as to the circumstances surrounding the transport accident.
121 The issue of “causation” is a difficult one. At first blush, the complaints made by the plaintiff after the transport accident and the various clinical examinations seemingly suggest that any pain suffered by the plaintiff in her right shoulder region was referred pain from the neck, rather than the result of an intrinsic injury to her right shoulder. Notwithstanding the foregoing, each of the general practitioners who examined the plaintiff after the transport accident ultimately formed the opinion that the transport accident played a causative role in the tear of supraspinatus tendon in the right shoulder. Unfortunately, the matter is not helped when one considers the lay evidence before the Court – that is, the evidence of the plaintiff, her husband and daughter, all of whom would suggest that immediately following the transport accident the right shoulder was causing difficulties through pain and restricted movement. The picture painted by the family is not clearly borne out by the presentation of the plaintiff to the various doctors.
122 The issue is made more complex when there is clear evidence (which I accept) that the plaintiff experienced intermittent symptoms in her right shoulder which possibly may be explained by acromio-clavicular degeneration or indeed, early symptoms of a supraspinatus tear. Furthermore, I accept that prior to the transport accident and indeed after such accident, the plaintiff had a myriad of symptoms emanating from her spinal column, right knee, ankles and her cardiac condition.
123 After a consideration of all the evidence, I am of the opinion that on balance, the transport accident aggravated a pre-existing shoulder injury in the sense that it contributed to the extent of the tear to the supraspinatus tendon, giving rise to both pain symptoms and restriction of movement. I have formed this view in part, at least, because I accept that the circumstances of the transport accident did involve the right hand, in particular, striking another part of the vehicle as a result of the jolt of the transport accident. In this sense, I consider that the requisite trauma to the right arm and thus the shoulder, would satisfy the requirements set out by Dr Andrianakis in his evidence to establish a connection between the transport accident and the supraspinatus tear in the right shoulder.
124 I do not accept the opinion of Mr Shannon essentially for two reasons. First, he assumed that the plaintiff did not consult with a doctor until about a week after the accident (and thus inferentially suggesting that her symptoms were relatively minor) and secondly, he had no history of the plaintiff being jolted with her right arm striking another part of the vehicle.
125 I consider that the opinion of Dr Andrianakis should be preferred. Furthermore, I also consider the medico-legal opinion of Mr Flanc should be preferred when he expressed in his report dated 1 August 2008 and later his report dated 2 January 2009, that “it is more likely than not that the motor car accident of 2006 significantly aggravated the condition of her right shoulder”.
126 Turning to the issue as to whether or not such “injury” is a serious injury within the meaning of the Act, I make the following comments. I refer to Dressing v Porter & Anor, a decision of the Court of Appeal concerning the appropriate approach to determining a serious injury in circumstances where a claimant has a variety of symptoms from other medical problems unrelated to a transport accident. Ashley JA stated:
“What his Honour had to do was to decide what symptoms afflicted the appellant in consequence of his compensable injury, and with what effect. If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences. His Honour’s reasons rather suggest that he approached the matter on the footing that there must only be one condition which could satisfy the test.”[91]
[91]See Dressing (op cit) at paragraph [47]
127 Clearly enough, as I have indicated earlier in this judgment, the plaintiff has a myriad of symptoms beyond those in the right shoulder. Having found a compensable right shoulder injury, it is incumbent on the plaintiff to establish what organic consequences have resulted from any impairment of the right shoulder and whether such consequences satisfy the relevant test in Humphries & Anor v Poljak.
128 Given that I have found that the transport accident has “aggravated” pre-existing symptoms, and that the seriousness of such injury can only be the extent of the “aggravation”, it is necessary to make a comparison of the right shoulder before and after the transport accident as directed in Petkovski v Galletti.[92] Unfortunately, such a task again is made particularly difficult by the following matters. First, prior to the transport accident, the plaintiff was experiencing a myriad of symptoms throughout her body (including right shoulder symptoms on occasion) which required a regime of medication which was extensive. Secondly, the lay evidence from the husband of the plaintiff would suggest that she had no shoulder symptoms prior to the transport accident and indeed the daughter of the plaintiff suggested that prior to the transport accident the plaintiff could undertake a variety of tasks involving her right arm which could not be undertaken after the transport accident.
[92][1994] 1 VR 436 at page 443
129 After consideration of all the evidence I find that although accepting that the plaintiff had symptoms in her right shoulder prior to the transport accident (as I have already found), such symptoms were intermittent with seemingly the last recorded note of right shoulder symptoms being on 15 March 2005. Furthermore, there are no particular findings in relation to restriction of right shoulder movement prior to the transport accident, although in and around 2003 there was noted to be deltoid muscle wasting in the right shoulder area.
130 Since the transport accident there has not been any significant increasing or changes in medication (even assuming that such medication prior to the transport accident was to ease pain in the right shoulder condition) and indeed, as highlighted by Senior Counsel for the defendant, there has been no particular wasting in the right shoulder area after the transport accident other than some very minor wasting noted by Mr Hunt during his examination.
131 Notwithstanding the foregoing, all doctors have found restriction of movement of the right shoulder, particular abduction consistent with a tear of the supraspinatus tendon. Although, I found the husband of the plaintiff to be unreliable in that he, in my view, downplayed the symptoms of the plaintiff prior to the transport accident, I consider that the daughter of the plaintiff, although emotionally involved in the matter, was attempting to give an honest account of what she had observed. The daughter described restriction of movement of the right arm and shoulder which in turn caused difficulties with dressing, bathing, toileting on occasion, and various household duties. In this sense, it must be remembered that the plaintiff is right handed.
132 I found the plaintiff to be particularly pain focused and in her evidence emphasised the pain and restrictions in her right shoulder and to some extent, downplayed her other medical problems. Furthermore, I also note that Dr Siapantas accepted the proposition that even on the assumption the plaintiff had an organic problem in her right shoulder, psychological aspects completely overshadowed any organic component.
133 Again, after consideration of all the evidence, I am persuaded, on balance, that the plaintiff does have genuine restriction of her right shoulder and arm as a result of the supraspinatus tendon tear and has pain symptoms when moving that arm, particularly above shoulder height. I also accept in general terms, that there have been far greater restrictions in the use of the right arm since the transport accident compared to prior to the transport accident which impacts on various aspects of her daily living.
134 In such circumstances, I am satisfied that the right shoulder injury satisfies the test set out in Petkovski v Galleti and that the consequences resulting from the right shoulder impairment are at least very considerable and certainly more than significant or marked as required by the test set out in Humphries & Anor v Poljak.
Conclusion
133Accordingly, I grant leave to the plaintiff to bring common law proceedings in relation to her right shoulder and arm injuries suffered by her arising out of a transport accident on 4 October 2006.
134I will hear the parties as to the appropriate orders.
- - -
Annexure A
(1) The plaintiff tendered the following material:
(a)Exhibit 1, consisting of the affidavits sworn by the plaintiff on 13 October 2008; Sofi Angel on 8 July 2010; and John Makrangelos on 8 July 2010; the report of Dr S Moraitis dated 1 October 2007; the report of Dr Siky Siapantas dated 6 July 2007; the report of Mr George Tsironis dated 1 May 2008; the ultrasound and x-ray of the right shoulder dated 3 August 2007; the medical reports of Mr C Flanc dated 1 August 2008; 20 October 2008 and 2 January 2009; the psychiatric report of Dr Kornan dated 31 August 2008; report of Mr Peter Mangos dated 15 May 2009; report of Mr Garry Grossbard dated 3 September 2009; and reports of Mr Justin Hunt dated 20 May 2010, 1 June 2010 and 13 July 2010 - such material contained at pages 7 to 18, 25 to 35, 41 to 88 of the Plaintiff’s Court Book (‘PCB”);
(b)Exhibit 2 – further notes of Dr Andrianakis (Thornbury notes) commencing 6 October 2006;
(c)Exhibit 3 – quotation in relation to motor vehicle repairs from Griffith Panel Works.
(2) The defendant submitted the following material:
(a)Exhibit A – radiological material consisting of an ultrasound to the right knee dated 12 September 2003; a plain x-ray of the cervical spine, chest, right knee, both ankles and lumbar spine dated 14 April 2004; CT scan of the lumbosacral spine dated 18 August 2005; chest results dated 7 November 2005; x-ray of the lumbar spine, right knee, and cervical spine dated 6 October 2006 – all contained at pages 36 to 40 of the PCB;
(b)Section 93 Serious Injury Application contained at pages 21 to 24 of the PCB;
(c)Exhibit C – consisting of further notes from Dr Siapantas from 5 September 2007 to 25 May 2010;
(d)Exhibit D – report of Dr Siky Siapantas dated 13 May 2009 and a report of Mr Michael Shannon dated 29 April 2010, at pages 16 to 29 of the Defendant’s Court Book (“DCB”);
(e)Exhibit E – Bayside and District Chiropractic clinical notes;
(f)Records of Dr S Moraitis – handwritten notes and reports from 30 May 1984 to 11 June 2008.
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