Marr v TAC
[2023] VCC 2284
•13 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-00352
| Nicola Marr | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 August 2023 | |
DATE OF JUDGMENT: | 13 December 2023 | |
CASE MAY BE CITED AS: | Marr v TAC | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2284 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Motor vehicle accident – pain and suffering and pecuniary disadvantage
Legislation Cited: Transport Accident Act 1986
Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Humphries & Anor v Poljak [1992] 2 VR 129; TAC v Dennis [1998] 1 VR 702; TTB SMS Pty Ltd v Reading [2020] VSCA 203.
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M. Pilipasidis SC with Mr B. Gahan | Slater and Gordon |
| For the Defendant | Mr R. Middleton KC with Ms J. Ryan | HWL Ebsworth Lawyers |
HIS HONOUR:
1The plaintiff seeks leave to commence a proceeding at common law to recover damages for injuries she suffered in a transport accident on 29 November 2018.
2The plaintiff was represented by Ms Pilipasidis of Senior Counsel, with
Mr Gahan of counsel. The defendant was represented by Mr Middleton of Kings Counsel, with Ms Ryan of counsel.3The application is brought pursuant to the provisions of the Transport Accident Act 1986 (“the Act”) relying on paragraph (a) and (c) of the definition of “serious injury” contained in section 93(17) of the Act. At the commencement of the hearing, Ms Pilipasidis conceded reliance on paragraph (c) of the definition. Also, the claim expressed for injury to the “nervous system” was likewise abandoned.
4It is necessary in the determination by the Court of an application for the grant of a serious injury, for a plaintiff to identify the impairment to body function and the injury, or injuries relied upon caused by a transport accident. The particulars of injury pressed on behalf of the plaintiff are described as:
·Injury to the right upper extremity including:
i.injury to the right elbow and forearm including posterior interosseous nerve compression reduced sensation of posterior antebrachial cutaneous nerve lesion right lateral epicondylitis periosteal irritation common extensor tendinopathy of the right elbow and elbow arthritis;
ii.injury to the right shoulder including biceps tendon irritation at right shoulder mild right shoulder impingement; and
iii.injury to the right wrist and hand including carpal tunnel syndrome compression of sensory fibres of the median nerve in the carpal tunnel right side base of right thumb arthritis chronic tears and tenosynovitis.[1]
[1] Amended Particulars of Injury filed 28 July 2022.
5The meaning of “serious” expressed in section 97(17) of the Act has been addressed in the following way in Humphries & Anor v Poljak:[2]
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’.[3]
[2] [1992] 2 VR 129 (‘Humphries’).
[3] Ibid 140.
6As explained in the extract from Humphries,[4] a determination of the seriousness of any pecuniary disadvantage the plaintiff has suffered as a result of a transport accident is to be assessed in combination with, and not separately, from any pain and suffering consequences.
[4] Ibid.
The evidence
7The plaintiff tendered the following evidence in support of her application:
(a) Her affidavits dated 14 January 2021,[5] 27 June 2022,[6] and 28 June 2023;[7]
[5] Exhibit P1, Plaintiff Court Book (‘PCB’) 12-17.
[6] Exhibit P1, PCB 18-30.
[7] Exhibit P1, PCB 31-37.
(b) Affidavit of Lauren O’Toole dated 15 June 2022;[8]
[8] Exhibit P2, PCB 38-40.
(c) Affidavit of Sarah Ward dated 27 June 2022;[9]
[9] Exhibit P3, PCB 41-42
(d) Radiology comprising:
(i)Ultrasound - right elbow dated 18 January 2019;[10]
(ii)CT - right elbow dated 24 January 2019;[11]
(iii)MRI - right elbow and right wrist dated 24 March 2020;[12]
(iv)Nerve Conduction Studies dated 19 May 2020,[13] and 4 October 2022;[14]
(v)MRI - right shoulder dated 5 October 2020,[15] and 17 August 2022;[16]
(vi)MRI - right wrist dated 12 November 2020;[17]
(vii)Ultrasound guided right posterior intraosseous nerve injections at supinator dated 27 September 2021,[18] and 2 December 2021;[19]
(viii)Ultrasound - right forearm dated 17 March 2022;[20]
(ix)MRI - right elbow dated 21 February 2022;[21]
(x)X-Ray - right shoulder dated 31 October 2022;[22]
[10] Exhibit P4, PCB 47.
[11] Exhibit P4, PCB 48.
[12] Exhibit P4, PCB 49.
[13] Exhibit P4, PCB 50-52.
[14] Exhibit P4, PCB 60-61.
[15] Exhibit P4, PCB 53.
[16] Exhibit P4, PCB 59.
[17] Exhibit P4, PCB 54.
[18] Exhibit P4, PCB 55.
[19] Exhibit P4, PCB 56.
[20] Exhibit P4, PCB 57.
[21] Exhibit P4, PCB 58.
[22] Exhibit P4, PCB 62.
(e) Peninsula Health discharge summary dated 30 November 2018;[23]
(f) Reports of Dr Isaac Olaniyi dated 13 January 2020,[24] 22 July 2022,[25] and 6 July 2023;[26]
(g) Three reports of Dr Leesa Huguenin dated 5 October 2020,[27] 10 May 2022,[28] and 28 July 2023;[29]
(h) Five reports of Dr Jennifer Flynn dated 24 February 2020,[30] 20 March 2021,[31] 12 May 2021,[32] 12 July 2022,[33] and 6 July 2023;[34]
(i) Report of Dr Richard Sullivan dated 14 June 2023;[35]
(j) Letter of Dr Olaniyi to Dr Huguenin dated 13 August 2021;[36]
(k) Report of Dr Jason Harvey dated 10 May 2022;[37] and
(l) Two letters from Dr Santosh Jacob to Dr Olaniyi dated 6 October 2022,[38] and 10 November 2022.[39] Along with a letter from Dr Jacob to the TAC of 31 October 2022.[40]
[23] Exhibit P5, PCB 68-73.
[24] Exhibit P6, PCB 74-75.
[25] Exhibit P6, PCB 76-85.
[26] Exhibit P6, PCB 86-87.
[27] Exhibit P7, PCB 88-91.
[28] Exhibit P7, PCB 92-107.
[29] Exhibit P7, PCB 108-117.
[30] Exhibit P8, PCB 153-161.
[31] Exhibit P8, PCB 162-169.
[32] Exhibit P8, PCB 170.
[33] Exhibit P8, PCB 171-179.
[34] Exhibit P8, PCB 180-190.
[35] Exhibit P9, PCB 191-196.
[36] Exhibit P10, Plaintiff Supplementary Court Book (‘PSCB’) 6-7.
[37] Exhibit P11, PSCB 8-10.
[38] Exhibit P12, PSCB 11.
[39] Exhibit P12, PSCB 15.
[40] Exhibit P12, PSCB 12-14.
8The defendant tendered the following evidence in opposition of the application:
(a) Three reports of Dr Leesa Huguenin dated 29 April 2022,[41] 8 August 2022,[42] and 11 November 2022;[43]
(b) Two reports of Professor Stephen Davis dated 29 June 2022,[44] and 28 June 2023;[45] and
(c) Surveillance footage of the plaintiff taken on 7 July 2022 and 8 July 2022.[46]
[41] Exhibit D1, Defendant Court Book (‘DCB’) 29.
[42] Exhibit D1, DCB 30.
[43] Exhibit D1, DCB 31.
[44] Exhibit D2, DCB 57-63.
[45] Exhibit D2, DCB 64-66.
[46] Exhibit D3.
The primary position of the parties
9Ms Pilipasidis contended that I should be satisfied and accept the diagnosis made by Dr Flynn which is, that as a result of the transport accident, the plaintiff suffered an injury to the right elbow due to nerve compression and lateral epicondylitis, and an impingement to the right shoulder and biceps tendon synovitis, and that I should find that the consequences for the plaintiff are more than significant or marked and are very considerable.
10Mr Middleton contended that the plaintiff suffers a pain syndrome that lacks an organic basis to explain the claimed injuries to the right upper extremity, as a result of the transport accident. Furthermore, Mr Middleton argued, if the plaintiff is suffering consequences due to the transport accident then she has not suffered pecuniary disadvantage as a result of the accident and she is “functioning properly and working well.”[47] In short, Mr Middleton submitted the test for the grant of a serious injury certificate under the provisions of the Act, has not been established.
[47] Transcript (‘T’) 13, Line (‘L’) 9–10.
11In arriving at my decision, I have had regard to the medical reports and clinician notes relied on by the parties, as well as the affidavits of the plaintiff and the affidavits of the two lay witnesses, the cross-examination and re-examination of the plaintiff and the addresses of counsel. In these reasons I have referred to such of the medical evidence that was relied on by the parties and proved necessary to arrive at my findings.
The plaintiff’s affidavit evidence
Pre-accident medical history
12Prior to the transport accident the plaintiff had experienced some emotional turmoil in her life. She deposed to a marriage breakdown in 2013, in the wake of which she was prescribed Pristiq and had counselling, as she did after the death of her mother in 2018.[48]
[48] Exhibit P1, PCB 12-17, paragraphs 7-8.
The transport accident on 29 November 2018
13The plaintiff provided her account of the transport accident in her first affidavit. It was not contested by the defendant. The plaintiff described the event in the following terms:
On or about 29 November 2018, I was driving down the Mornington-Tyabb Road in Moorooduc. I was travelling with my eldest daughter and we were going to an antique store. She was sitting in the front seat. As I was crossing over Derril Road, a car on my right hand side failed to give way and collided with the front right hand side of my car. The impact caused my car to move to the left and collide with a car waiting on my left hand side. The force caused the other car to spin to the left and we both ended up on the side of Derril Road, in a "V" configuration and wedged against the curb.[49]
[49] Exhibit P1, PCB 12-17, paragraph 9.
14Following the accident, the plaintiff was taken by ambulance to Frankston Hospital where she stayed overnight and was discharged the next day. Professor Davis who would come to provide reports relied on by the defendant, referred in his first report to a hospital discharge summary that included that the plaintiff “denied head strike or loss of consciousness. There had been an impact to the right elbow and she had numbness of the right hand, pain under the left breast and in the right upper thigh. She had bruising of the right elbow region and the upper right thigh and they state that paraesthesia in the right hand had resolved.”[50] The shoulder was not implicated in that account.
[50] Exhibit D2, DCB 58.
15The plaintiff is right handed.[51]
[51] Exhibit P1, PCB 31, paragraph 3.
Post-accident diagnosis and treatment
16The plaintiff’s further affidavits detailed the course of treatment and investigations she has undertaken. The narrative that follows is substantially derived from them.
17Dr Leesa Huguenin is a sports physician on whom the plaintiff first attended in July 2020. The plaintiff received an autologous blood injection. Dr Huguenin also provided the plaintiff with rehabilitation exercises, although the plaintiff said they caused her to experience a “flare-up” of pain to her right forearm, wrist and hand.[52]
[52] Exhibit P1, PCB 12-17, paragraph 13.
18On about 27 October 2020, the plaintiff had a cortisone injection in the right shoulder region. She deposed that an MRI of her right wrist, had disclosed some degenerative changes.
19Further reviews occurred with Dr Huguenin during 2021. On 27 September 2021, the plaintiff had an injection into the intraosseous nerve on the right side.
20Dr Huguenin referred the plaintiff to Mr Jason Harvey, orthopaedic surgeon, and she had a further injection into the intraosseous nerve on 2 December 2021.
21Again, on Dr Huguenin’s referral, the plaintiff had an injection on 6 January 2022, into the right long head of biceps tendon sheath.
22The plaintiff underwent an MRI of her right elbow on 17 February 2022, which she understood disclosed some tendinopathy.
23The plaintiff had an ultrasound of her right forearm on 17 March 2022, which she believed showed common extensor origin tendinopathy.
24In September 2022, the plaintiff had an injection around the interosseous nerve in her right forearm. She deposed that the effect of this was that it “dulled” some of the pain in her right arm for around four months.[53]
[53] Exhibit P1, PCB 32, paragraph 8.
25On 4 October 2022, the plaintiff underwent a nerve conduction study of her right arm, the results of which she understood, to be inconclusive.
26Dr Huguenin referred the plaintiff to Dr Santosh Jacob, orthopaedic surgeon, and she was seen by him on 6 October 2022. A radiological referral followed which included a full body radioactive scan, and right shoulder x-ray. However, Dr Jacob did not “make any recommendations for further treatment.”[54]
[54] Exhibit P1, PCB 33, paragraph 14.
Current treatment
27In her recent affidavit affirmed on 28 June 2023, the plaintiff deposed that she sees her general practitioner, Dr Isaac Olaniyi, as required for any specialist referrals. She consults with Dr Huguenin about every four months. The plaintiff said that she was looking to consult with an exercise physiologist, named Unna Goldsworthy, after having been referred to her by Dr Huguenin, but had been delayed in obtaining an appointment.
28The plaintiff deposed to taking Panadol and Nurofen for her right arm pain on an as needs basis. She takes “at least one,” or other of these medications daily, however, she said that she tries to avoid medication. Instead she prefers to use heat packs daily as well as topical heat rubs applied to her forearm.[55]
[55]Exhibit P1, PCB 18.
29The plaintiff takes Nexium on a daily basis (for reflux), and Pristiq to aid her mental well-being.
Employment at the Nepean School
30At the date of the transport accident the plaintiff was employed as an education support worker on a full-time basis at the Nepean School, a specialist school for children with disabilities. She commenced employment there in 2011. She described the work as “challenging,” because she is required to physically assist students throughout the day.[56]
[56] Exhibit P1, PCB 15, paragraph 18.
31Prior to the onset of Covid-19, but subsequent to the transport injury, the plaintiff said she had taken “one or two weeks off work due to flareups of pain,” in her right arm, forearm and elbow.[57] She said that over the course of the summer holidays of 2021 - 2022 her pain improved, however, when she returned to work in around mid-February 2022, she experienced a flare-up of pain. She said that she had otherwise been “pushing through the pain while at work,” which had been “challenging.”[58]
[57] Exhibit P1, PCB 19, paragraph 14.
[58] Exhibit P1, PCB 19, paragraph 14.
32The plaintiff remains employed at the Nepean School in the same role as before the transport accident, despite suffering from “ongoing pain.” She said that she is faced with a necessity to work because she is “struggling financially.”[59]
[59] Exhibit P1, PCB 33, paragraph 20.
Additional work
33In her second affidavit, affirmed in June 2022,[60] the plaintiff said she had registered an ABN in late 2021, and undertook some carer’s work to supplement her income. She said the additional work consisted of about four sessions with a client (a former student at the Nepean School) from December 2021, with each session lasting about five hours and undertaken on a Saturday. The plaintiff said she stopped it, because the increase in physical activity “significantly worsened” her right arm pain.[61]
[60]Exhibit P1, PCB 18-30.
[61] Exhibit P1, PCB 20, paragraph 16.
34However, in her recent affidavit, affirmed on 28 June 2023,[62] the plaintiff said that on top of her full-time employment at the Nepean School, she is undertaking additional work on Wednesday evenings, and bi-weekly Monday evenings, and on some weekends and over holidays, caring for a young adult with physical disability. Her duties include performing “personal care, housework and some driving.”[63] In short, she is undertaking greater additional work now, than in late December 2021.
[62]Exhibit P1, PCB 31-37.
[63] Exhibit P1, PCB 34, paragraph 22.
Consequences of injury
35In her June 2023 affidavit, the plaintiff deposed that her two daughters, aged 21 and 23 years old reside with her. She said that in August 2022, she met a gentleman named Mark with whom she has recently commenced a relationship. They see each other on a weekly basis.[64]
[64] Exhibit P1, PCB 31, paragraphs 2 & 4.
Manifestation of pain
36In her second affidavit dated 27 June 2022, the plaintiff deposed to experiencing “mild to moderate pain,” in her right arm. She described the frequency of the pain as constant, and she said that it travelled down from her shoulder to her fingertips. She said she was “never pain free in her right arm.”[65]
[65] Exhibit P1, PCB 20 paragraph 17.
37In her 28 June 2023 affidavit, the plaintiff deposed to continuing “to suffer from almost constant pains” in her right shoulder and arm.[66] She said that the “pain is of differing severity and in different parts” of her right arm and shoulder.[67] She described the pain as including “frequent burning pain on her forearm and around daily episodes of severe stabbing pain in her right arm. The severe stabbing pain sometimes occurs with use and other times it occurs randomly, even at rest.”[68] She said the pain in her right arm worsened with use. She said that she has tried to “do more with her arm on Dr Huguenin's advice which causes increased pain.”[69]
[66]Exhibit P1, PCB 34, paragraph 23.
[67] Exhibit P1, PCB 34 paragraph 23.
[68]Exhibit P1, PCB 34, paragraph 23.
[69]Exhibit P1, PCB 34, paragraph 24.
38The plaintiff said that at the end of a day’s work she experiences worsening pain, the severity of which is dependent on what she has done during the day. She agreed that some days the additional private work she performs, causes increased pain and flare ups but that financially she has “no choice,”[70] and is compelled to undertake the extra work.
[70] Exhibit P1, PCB 34, paragraph 35.
39The plaintiff deposed to continuing to “suffer ongoing weakness in her right arm.”[71]
[71]Exhibit P1, PCB 34, paragraph 26.
40The plaintiff described feeling exhausted by the end of the day and although she does not experience trouble falling asleep, her sleep is light, and she does not feel rested on waking. She described waking up with “pain, pins and needles, and numbness” in her right arm and hand each night.[72]
[72] Exhibit P1, PCB 34, paragraph 26.
41The plaintiff deposed to suffering nightmares about the accident, around once or twice per week.[73] She said that she has “been finding it increasingly difficult to get out of bed in the morning.”[74]
[73] Exhibit P1, PCB 21, paragraph 21.
[74] Exhibit P1, PCB 34, paragraph 27.
42She described feelings of anxiousness in the morning, with her anxiety worsened by increased pain. She finds she “easily becoming teary,” and believes that her “mood is overall much lower than prior to the accident.”[75]
[75] Exhibit P1, PCB 35, paragraph 28.
Driving
43The plaintiff said she experiences anxiety driving.[76] In her June 2023 affidavit, she deposed that when she was teaching her youngest daughter to drive she needed to “push” herself to do so. She felt guilty not having been able to do the same for her older daughter.
[76] Exhibit P1, PCB 21, paragraph 25.
44The plaintiff deposed that she does not enjoy driving as she did before the accident.[77] She is “more hypervigilant, and noises continue to trigger worsening anxiety.”[78] Physically, she suffers worsening symptoms in her right arm after about 15 minutes driving.
[77] Exhibit P1, PCB 35, paragraph 28.
[78] Exhibit P1, PCB 35, paragraph 29.
Activities of daily living
45Prior to the accident, the plaintiff said she drank socially but now she drinks by herself, “on an almost daily basis to relax.”[79] She averages two drinks per day.
[79]Exhibit P1, PCB 35, paragraph 31.
46The plaintiff described a poor memory,[80] and she will “struggle” with her short-term memory.[81] She said she is easily distracted at work, and often forgets what she is doing.
[80]Exhibit P1, PCB 15, paragraph 19 and PCB 21, paragraph 24.
[81]Exhibit P1, PCB 35, paragraph 32.
47Prior to the accident she was an avid reader, but now finds herself too tired to read at night.
48The plaintiff said that she can look after herself, although she suffers “increased pain when doing various tasks,” including drying herself with a towel, using a hair drier, putting on her shoes and doing up her bra.[82]
[82]Exhibit P1, PCB 35, paragraph 33.
49The plaintiff deposed that prior to the accident she enjoyed gardening but she is now reduced to “limited gardening.”[83] She will “perform only minimal gardening,” because it “increases the symptoms in her right arm.”[84]
[83]Exhibit P1, PCB 16, paragraph 20 and PCB 23, paragraph 37.
[84]Exhibit P1, PCB 35, paragraph 34.
50The plaintiff deposed to encountering difficulty performing housework,[85] and that she struggles “to perform housework due to the increased pain it causes.”[86] She can manage “the essentials such as dishes and washing,” and she sweeps because it's easier than vacuuming.[87] She avoids harder tasks, that she had been able to perform prior to the accident, such as “washing ceiling fans and walls.”[88] She said that her home is not maintained to her standards.
[85]Exhibit P1, PCB 16, paragraph 20 and PCB 23, paragraph 38.
[86] Exhibit P1, PCB 35, paragraph 35.
[87] Exhibit P1, PCB 35, paragraph 35.
[88] Exhibit P1, PCB 35-36, paragraph 35.
51The plaintiff said that before the accident she attended the gym approximately three times per week and she would “do different classes including yoga, pilates, tai chi, spin, high intensity cardio, and body jam dance classes.”[89] She said that she is no longer able to attend the gym and classes.
[89] Exhibit P1, PCB 36, paragraph 36.
52The plaintiff deposed that a couple of years ago her daughters bought a kayak for her but she has been unable to use it.
53Prior to the accident the plaintiff said she socialised with friends most weekends and she “enjoyed going out for dinners, drinks, movies, and live music.”[90] Now, she usually only goes out with friends about every second month.
[90] Exhibit P1, PCB 36 paragraph 38.
54The plaintiff deposed that doing anything too physical, or repetitious with her right arm is “hard due to the pain it causes.” She said her sex life has been “drastically affected” because it now lacks spontaneity, as she needs to give greater thought to what she is “physically doing in the bedroom now to avoid pain and discomfort.”[91]
[91] Exhibit P1, PCB 36, paragraph 39.
55The plaintiff described herself as “generally a positive person.” She said that she is feeling “more hopeful” now that she has a supportive partner, but that her injuries “greatly impact” her life “physically, mentally, and emotionally on a daily basis.”[92]
[92] Exhibit P1, PCB 36, paragraph 40.
Affidavit of Lauren Kaye O’Toole
56The plaintiff relied on an affidavit from Ms O’Toole.[93] She was not required for cross-examination. No objections were raised as to the contents of the affidavit. Ms O’Toole said she met the plaintiff in late 2020, when she was volunteering at the Nepean School. She commenced working at the school in 2021, as a teacher and is presently employed as a learning specialist.
[93] Exhibit P2, PCB 38-40.
57Ms O’Toole said that education support staff, such as the plaintiff, play a crucial role at the school, which caters for children from preparatory to year 12 and assist with feeding, toileting and hoisting students, along with learning.
58Ms O’Toole said the plaintiff had told her that she had some time off work after the accident, and “wasn’t as strong as she used to be upon her return to work.”[94]She said that the plaintiff reported having been allocated to a different class on her return to work and that she “struggled to manage these duties due to her pain and restrictions.”[95]
[94] Exhibit P2, PCB 39, paragraph 9.
[95] Exhibit P2, PCB 39, paragraph 9.
59Ms O’Toole characterised the plaintiff as the “type of person who soldiers on and rarely complains.”[96] She offered as an example, a “frustrated” student who “when he uses his walker he often tries to lift it up or take it over bumps or he unstraps his wrists.” Ms O’Toole said this proved difficult for the plaintiff, “particularly if she has been working with this student for a long period of time and she needs to take a break.” She said that if the plaintiff “is working with a more compliant student there is no need to intervene, but if she has a student who is less compliant, generally the other education support person would intervene,” and suggest to the plaintiff that she take a break.[97]
[96]Exhibit P2, PCB 39, paragraph 11.
[97]Exhibit P2, PCB 39, paragraph 11.
60Ms O’Toole said that she had observed the plaintiff “rubbing her right arm and wrist and stretching and flexing her fingers at the end of the day or at the end of a session.”[98]
[98] Exhibit P2, PCB 40, paragraph 12.
61Ms O’Toole said that the plaintiff preferences using the left side of her body when hoisting a student and so Ms O’Toole will position herself to the plaintiff’s right side, to assist her to hoist the student so that the plaintiff’s right arm “is not working too hard.”[99]
[99] Exhibit P2, PCB 40, paragraph 12.
62Ms O’Toole deposed that the plaintiff “loves” and is “committed” to her job, but has expressed worry about her ability to do her job in the long-term.
Affidavit of Sarah Kimberley Ward
63The plaintiff also relied on an affidavit from Ms Ward.[100] She was not required for cross-examination, and no objections were raised as to the contents of her affidavit.
[100]Exhibit P3, PCB 41-42.
64Ms Ward is an education support worker at the Nepean School and commenced her employment in March 2021. She worked in the same classroom as the plaintiff in between Covid-19 lockdowns in 2021 but worked in different classrooms in 2022.
65Ms Ward deposed that the plaintiff was “very stoic.”[101] She said that although the plaintiff “does not complain about her right arm symptoms,” she is aware that the plaintiff “is suffering at work by the look on her face.”[102]
[101] Exhibit P3, PCB 41, paragraph 6.
[102] Exhibit P3, PCB 41, paragraph 7.
66Ms Ward said that at the end of the day, she “often” notices that the plaintiff is “holding her right arm.” She said that “by the look on her face and her posture I can tell she is in pain.”[103]
[103] Exhibit P3, PCB 41-42, paragraph 7.
67Ms Ward referred to a student she remembered from 2021, who required a lot of assistance to move her body as a result of cerebral palsy. She said that the student was “very reliant” on the plaintiff and her to hoist her. Ms Ward said that in performing this work, the plaintiff “tries to avoid using her dominant right-hand side and uses her left side instead.”[104]
[104] Exhibit P3, PCB 42, paragraph 8.
The plaintiff’s medical evidence
Dr Leesa Huguenin, Sports Physician
68Dr Huguenin provided three reports dated 5 October 2020,[105] 10 May 2022,[106] and 28 July 2023.[107] In her most recent report, Dr Huguenin recorded:
The diagnosis of injuries includes biceps irritation at the right shoulder and posterior interosseous nerve irritation at the right forearm with a possible diagnosis of carpal tunnel syndrome. As noted, I also suspect some chronic pain compensation.
…
She has a high degree of function at the moment but still has intermittent pain.
…
Details of future treatment are difficult to provide. She may need further intervention to her posterior interosseous nerve. She may require repeat shoulder injections. At this stage, the surgeon is not keen on operating for her shoulder concerns, but there is a possibility that biceps tenodesis may be considered. She will require ongoing strengthening, and given her underlying hypermobility, this is likely to take many months if not a couple of years.
…
[105] Exhibit P7, PCB 88-91.
[106] Exhibit P7, PCB 92-107. This report was tendered with the date 10 May 2023.
[107] Exhibit P7, PCB 108-117.
Nicola has a degree of chronic pain associated with her injury and also has underlying hypermobility which means that recovery and rehabilitation will be slower than in the normal population.[108]
[108] Exhibit P7, PCB 108-117, PCB 112 paragraph 3 & 5-6.
69The plaintiff was last seen by Dr Huguenin on 5 June 2023, at which time the plaintiff reported that:
Her shoulder pain was feeling much better than it had previously. Her elbow had also improved. She told me that she still avoided carrying shopping bags in her right arm but was otherwise able to push through and achieve most of her activities of daily living. She had taken on some extra caring work and this had resulted in some increase in her forearm pain which had subsequently resolved.[109]
[109]Exhibit P7, PCB 111.
70Derived from Dr Huguenin’s earlier reports, the following chronology of treatment she has provided to the plaintiff can be gleaned:
(a) She first saw the plaintiff on 2 July 2020, and performed an autologous blood injection to the extensor tendon of the plaintiff’s right elbow. Dr Huguenin described the injection in her first report as “successful.” However, on review on 11 September 2020, the plaintiff complained of “sharp stabbing anterior elbow and shoulder pain,”[110] following rotation strength work, and on 25 September 2020 reported becoming “more aware of anterior shoulder pain.”[111] The plaintiff’s treatment at that time consisted of trialling “GTN patches for distal biceps pain.”[112]
(b) The plaintiff was reviewed by Dr Huguenin on 15 October 2020. She recorded how a recent MRI of the plaintiff’s right shoulder had revealed “subacromial bursitis with no other specific changes.”[113] On 27 October 2020, the plaintiff underwent ultrasound-guided corticosteroid injection to her right subacromial bursa.[114]
(c) On review in December 2020, the plaintiff “described definite improvement in her shoulder pain after corticosteroid injection.”[115] Dr Huguenin further noted that an MRI of the plaintiff’s right wrist “showed evidence of significant first CMC joint arthritis and I felt that this was the primary cause of her wrist and thumb pain.”[116]
(d) Dr Huguenin referred the plaintiff for two injections of her posterior interosseous nerve, which she underwent on 30 September 2021, and again on 3 December 2021.
(e) On 4 January 2022, Dr Huguenin reviewed the plaintiff following the second injection and noted that she “still complained of biceps pain, but forearm pain was largely resolved.”[117] Dr Huguenin wrote that the plaintiff had made “enormous inroads with regards to the severity of her pain since I first started seeing her…”[118]
[110]Exhibit P7, PCB 89.
[111]Exhibit P7, PCB 89.
[112]Exhibit P7, PCB 89.
[113]Exhibit P7, PCB 94.
[114] Exhibit P7, PCB 94.
[115]Exhibit P7, PCB 94.
[116] Exhibit P7, PCB 94.
[117]Exhibit P7, PCB 95.
[118]Exhibit P7, PCB 97.
Dr Jennifer Flynn, Orthopaedic Surgeon
71Dr Flynn provided five medicolegal reports. The first and second of her reports dated 24 February 2020, and 20 March 2021 were obtained by the parties on a joint basis.[119] The reports of 12 May 2021, 12 July 2022, and 6 July 2023 were prepared at the request of the plaintiff’s solicitors.[120]
[119] Exhibit P8, PCB 153-161 and PCB 162-169.
[120] Exhibit P8, PCB 170, PCB 171-179 and PCB 180-190.
72In her 6 July 2023 report, Dr Flynn recorded the plaintiff’s current treatment consisted of Nexium, Pristiq, ibuprofen and paracetamol. Although the plaintiff planned to undergo exercise physiology, no other future treatment was considered.
73The plaintiff reported to Dr Flynn current symptomology of “pain at the anterior aspect of the right shoulder, which fluctuates and is aggravated by activities such as driving.”[121] The plaintiff also reported “pain of the lateral right elbow, extending to the forearm, particularly when driving, pushing a wheelchair or moving equipment,” which the plaintiff reported as “a pulling sensation and a burning pain, extending distally toward the wrist on the radial side,”[122] and was worse with gripping.
[121]Exhibit P8, PCB 182.
[122]Exhibit P8, PCB 182.
74The plaintiff reported “pain into the base of the thumb and burning pain in this region… pain and numbness of the hand, particularly at night, likely in keeping with carpal tunnel syndrome.”[123]
[123]Exhibit P8, PCB 182.
75Dr Flynn reported that the plaintiff is independent in activities of daily living, although, she described difficulty undertaking the following tasks:
upper limb pain when reaching and stretching the shoulder, difficulty with weighted overhead movement, and forearm pain limiting her capacity to drive durations of over 20 minutes. She also reported fatigue of the upper limb with repetitive movement, as well as some difficulty lifting, and difficulty with the requirements of work including the use of a hoist, pushing wheelchairs, and assisting children. She reported difficulty with gripping, pulling and pushing. She reported limitation in intimate activities with her partner.[124]
[124]Exhibit P8, PCB 182.
76Dr Flynn addressed the plaintiff’s medical history, made findings on clinical examination and provided an analysis of her findings. She diagnosed:
1. Right elbow pain, likely due to posterior interosseous nerve compression, lateral epicondylitis, and mild elbow arthritis;
2. Right 1st carpometacarpal joint arthritis;
3. Right carpal tunnel syndrome, mild; and
4. Mild right shoulder impingement and biceps tenosynovitis.[125]
[125] Exhibit P8, PCB 185.
77Dr Flynn having noted Dr Huguenin’s opinion of the presence of central sensitisation, however, did “not note features to suggest this is a significant component of the presentation in Ms Marr.”[126]
[126] Exhibit P8, PCB 185.
78Dr Flynn considered the plaintiff’s prognosis as guarded. She thought it was likely the plaintiff would experience ongoing pain and symptoms, and that her condition was unlikely to resolve and there was a risk her condition could deteriorate by way of worsening thumb arthritis, “PIN”[127] compression and carpal tunnel symptoms.
[127] Posterior Interosseous Nerve
79As for future treatment, Dr Flynn noted that the plaintiff did not wish to pursue surgical intervention, however, she considered it may be required in the future in the form of “posterior interosseous nerve release; further steroid injections about the 1st CMCJ, PIN or shoulder; carpal tunnel release; shoulder arthroscopy; and surgery to address base of thumb arthritis, such as a suspensionplasty.”[128]
[128] Exhibit P8, PCB 185.
Dr Richard Sullivan, Interventional Pain Specialist and Specialist Anaesthetist
80At the request of the plaintiff’s solicitors, Dr Sullivan examined the plaintiff via videoconference. His report is dated 14 June 2023.[129]
[129] Exhibit P9, PCB 191-196.
81Dr Sullivan noted that the plaintiff had described the following pain:
1.Pain affecting her right forearm. This pain is stabbing, burning and itching in character and extends from the lateral elbow down the lateral aspects of the forearm towards the first and second digits. There is associated sensory disturbance including prickly and dysesthesia, pressure sensitisation such that when the area is aggravated, she cannot tolerate light clothing running across this region and also reduced sensory acuity such that the skin over the area can feel numb. This pain is aggravated with strenuous or repetitive activity utilising her right upper limb such as grasping, pushing, pulling, carrying or lifting objects or weights in excess of several kilograms, repetitive movements including gripping, use of utensils and tools with her right upper limb and she gives examples of being able to use a computer mouse or keyboard for no more than 15 minutes, driving in her car for no more than 15 minutes and lifting weighted objects in excess of several kilograms as a maximum without provocation of such pain. Her pain at wrist is around 2/10 on numerical rating scale, but exacerbations can be 6 or more out of 10.
2.Right-sided shoulder pain. This pain is described as aching and throbbing and is typically provoked through repetitive or strenuous use of the right upper limb while trying to utilise her above chest height and this pain can also be provoked with strenuous movements of her neck or holding her neck in a fixed flexed or rotated position for an extended period of time.[130]
[130]Exhibit P9, PCB 192.
82Dr Sullivan reported that the plaintiff attends Dr Huguenin once every six weeks, and received autologous blood injections around the common extensor origin of the elbow. He observed that the plaintiff had undergone steroid injections around her right forearm interosseous nerve on two occasions, had a steroid injection into her right biceps tendon, two subacromial steroid injections, and had been referred to an exercise physiologist, but was awaiting an appointment.
83Dr Sullivan recorded the plaintiff’s medicines as ibuprofen and Panadol taken when required, and typically before bed on most days. She had been stable on desvenlafaxine 50 mg since 2013, which was initiated during the dissolution of her marriage, and accompanying stress and depression.
84Dr Sullivan wrote that as a consequence of her injuries, the plaintiff had “reduced capacity to perform domestic chores, takes a paced approach to chores such as cooking and cleaning. She has substantive difficulty with gardening, for example, she is reliant on an elderly neighbour to mow her nature strip. She has no other external assistance and no paid home care, no gardening assistance. She reports independence in her personal care but again takes a modified approach with activities that would typically aggravate her right upper limb pain.”[131]
[131]Exhibit P9, PCB 192.
The defendant’s medical evidence
Three reports of Dr Huguenin
85The defendant tendered three letters from Dr Huguenin to Dr Olaniyi, general practitioner, dated 29 April 2022, 8 August 2022, and 11 November 2022.[132]
[132]Exhibit D1, DCB 29-31.
86On 29 April 2022, Dr Huguenin reported that a recent ultrasound of the plaintiff’s forearm, had shown on comparison, “some improvement in the appearance of the tendon.” She reported that the plaintiff “currently experiences intermittent pain in her right shoulder and intermittent pain in her elbow. Both of these are related to her activity levels.”[133]
[133]Exhibit D1, DCB 29.
87Dr Huguenin noted that the plaintiff “also experiences fleeting intermittent unpredictable pain in the volar aspect of her forearm,” but she could not see “any structural reason for this pain and feel that it is a neuropathic phenomenon.”[134] She recommended that the plaintiff pursue functional improvement via exercise physiology and improving her shoulder positioning and strength, rather than relying on further interventions.
[134]Exhibit D1, DCB 29.
88On 8 August 2022, Dr Huguenin reported that the plaintiff continued “to get aching pain” in her right shoulder and elbow, “which is random but certainly worse when she increases activity levels.”[135] She went on to say that the plaintiff “has partially but successfully responded to injection of the common extensor origin previously,” and that she had “almost complete resolution of her shoulder pain with injection of the biceps tendon sheath on two occasions.”[136]
[135]Exhibit D1, DCB 30.
[136]Exhibit D1, DCB 30.
89On 11 November 2022, Dr Huguenin reported that “her shoulder pain is much better since biceps injection. Her forearm pain remains largely unchanged.” Dr Huguenin again recommended that the plaintiff commence rehabilitation via exercise physiology, and that the plaintiff had (for a second time) requested approval from the Transport Accident Commission for 12 sessions of the same.[137]
[137]Exhibit D1, DCB 31.
Two reports of Professor Stephen Davis, Neurologist
90Professor Davis provided two reports to the defendant’s solicitors dated 29 June 2022, and 28 June 2023.[138]
[138]Exhibit D2, DCB 57-67.
The first report
91Professor Davis examined the plaintiff and obtained a history of the accident, her subsequent treatment and return to work. He recited a chronology of the investigations and reports with which he had been provided.
92At the time of his examination, the plaintiff reported experiencing “pain in the right shoulder, biceps region and elbow, radiating into the right forearm wrist and hand.”[139] She was taking Nurofen and Panadol when she had flare-ups of right-arm pain.
[139]Exhibit D2, DCB 59.
93Professor Davis recorded his findings on examination as:
In the right arm, there was no evidence of any muscular wasting or weakness with particular reference to the territories of the right radial/posterior interosseous nerve and the other peripheral nerves in the right upper limb. All muscle groups were graded 5/5 including finger extensors.
There was no evidence clinically of wasting, sympathetic overactivity or dysaesthesia to touch. There was some very localised pain with any pressure over the right dorsal proximal forearm which seems to be the main nidus of her pain syndrome. Reflexes were preserved. Pinprick was normally appreciated over the digits of the right hand and she did not have a Tinel sign with percussion of the right median nerve at the wrist.
There were no long tract signs.[140]
[140]Exhibit D2, DCB 61.
94Professor Davis believed that the plaintiff had “sustained soft tissue injuries to the right arm in the accident, the main focus being some damage to the right common extensor origin.” He said the plaintiff had acknowledged that she had “improved but still has pain issues in the right arm… that would be consistent with some soft tissue damage.”[141]
[141]Exhibit D2, DCB 61.
95Professor Davis considered that the plaintiff probably had “a mild or mild to moderate carpal tunnel syndrome,” although there was “a degree of uncertainty in term of causality.”[142] Professor Davis noted that “there are no objective neurological signs on examination and specifically no signs of a right posterior interosseous nerve palsy, either on examination or on the nerve conduction studies performed by Dr Rollinson.”[143]
[142]Exhibit D2, DCB 61-62.
[143]Exhibit D2, DCB 62.
96Professor Davis thought “it would be reasonable to consider a decompression of the right carpal tunnel,” but this was “highly unlikely to influence the pain focused on the right extensor origin region.”[144]
[144] Exhibit D2, DCB 62.
The second report
97For the purposes of the second report, Professor Davis was provided with additional medical reports and investigations that included:
(a) a study of 11 September 2020, which Professor Davis said showed “no compression of the posterior interosseous neurovascular bundle.”[145]
(b) nerve conduction studies of the upper extremities conducted on 4 October 2022, which were normal.
(c) a series of reports from Dr Huguenin, in which she referred to “right posterior interosseous nerve entrapment,” although Professor Davis considered that there was “no clinical or electrophysiological support,” for that “formulation.”[146]
(d) report of neurologist Dr Michael Tan, who had “pointed out that investigations did not confirm right posterior interosseous nerve entrapment and entrapment was not demonstrated on MRI or dynamic ultrasound imaging.”[147] Dr Tan had recommended nerve conduction studies which were “performed by Dr Mahi Jasinarachchi of Frankston Neurology which showed a normal study. There is no evidence of peripheral nerve pathology that he could identify in the upper limb and I completely concur with this formulation.”[148]
[145]Exhibit D2, DCB 65.
[146]Exhibit D2, DCB 65.
[147] Exhibit D2, DCB 65.
[148] Exhibit D2, DCB 65.
98Professor Davis referred to the diagnosis provided in his first report of a right arm soft tissue injury, the only possible neurological component of the same being carpal tunnel syndrome, which he noted was “a form of entrapment neuropathy at the wrist and there was no clear-cut right wrist injury in the accident.”[149]
[149]Exhibit D2, DCB 66.
99Professor Davis recorded that recently performed nerve conduction studies, and in particular, the study performed on 4 October 2022 by Dr Mahi Jasinarachchi showed:
no evidence of any peripheral nerve pathology in either upper limb. This was reported to be a normal study. It showed no evidence of any peripheral nerve lesion (such as carpal tunnel syndrome), motor radiculopathy or brachial plexopathy in the right upper extremity. Nerve conduction studies are very sensitive in the diagnosis of carpal tunnel syndrome and I think that any clinically significant carpal tunnel syndrome can now be excluded based on these normal results.[150]
[150]Exhibit D2, DCB 66.
100Professor Davis referred to his first report, and his finding of “no objective neurological signs on examination,” and “no evidence of a right posterior interosseous nerve palsy or other peripheral nerve pathology… there was no clinical weakness.” In this regard, he said that the “recent EMG studies performed by Dr Mahi Jasinarachchi of the right extensor digitorum communis was normal,” and there was “no evidence for involvement of this peripheral nerve.”[151]
[151] Exhibit D2, DCB 66.
101Professor Davis said:
While I think she has a pain syndrome involving the right arm, there is no definable neurological basis for her ongoing symptomatology, likely to represent a combination of soft tissue injuries and a non-specific chronic pain syndrome.[152]
[152]Exhibit D2, DCB 66.
The plaintiff cross-examined
102Regarding the circumstances of the accident, the plaintiff confirmed that she was wearing a seatbelt and the airbags in her car had not deployed. She said she noticed a “massive welt”[153] that she described as like a “blood bruise,”[154] on the underside of her arm above the elbow immediately following the collision.
[153]T18, L5.
[154]T18, L12.
103The plaintiff agreed with Mr Middleton’s proposition, that the only part of her body that struck the inside of her vehicle in the collision was her elbow. She said she did not recall striking her shoulder or her thumb.
104Following the accident, the plaintiff was taken by ambulance to Frankston Hospital where she remained overnight. Treatment with osteopath Tracy Vuat followed. The plaintiff said in her affidavit evidence, that she had not had any need for osteopathic treatment with Ms Vuat prior to the accident.[155]
[155] Exhibit P1, PCB 14, paragraph 12.
105The plaintiff confirmed that she had taken Pristiq for anxiety and depression, after her marriage broke up in 2013.
106By the date of the accident the plaintiff had commenced a relationship, however, it ended in February 2020, but she is now in a relationship and she said that she and her partner socialise.
107In relation to her employment duties, the plaintiff said that at the time of the accident in November 2018, she was working full time, five days a week from 8:45 am to 3:15 pm, equating to 32.5 hours per week. The plaintiff agreed that she continues working these hours at the Nepean School, and that she is also undertaking private work for a former student of the school. The plaintiff provides support for the client privately at home and works from 3:30 pm until around 8:00 pm on Wednesday nights, and every second Monday evening.
108Based on her additional hours, the plaintiff agreed with Mr Middleton that she can end up working anywhere between an additional 5 ½ and some weeks up to 11 hours of additional work. At a base rate of $60 per hour, the plaintiff agreed this provided her with approximately between an additional $300 or $600 per week.
109The plaintiff described the duties associated with her additional employment as varied, but they can include driving the client to and from medical appointments, personal care such as showering, toileting and giving medications, cleaning and housework, including loading and unloading a dishwasher, and sweeping the floor, but not vacuuming and mopping.
110The plaintiff was taken by Mr Middleton to a description of her post-accident work history reported by Professor Davis, that included her having taken five days off work following the accident and before returning to work. The plaintiff said she thought she returned to work “a bit prematurely” and took another three to four days off.[156]
[156] T23, L1-8.
111The plaintiff agreed that she returned to work undertaking her pre injury full time hours, working five days per week but on restricted duties. She said she remained on restricted duties until around 11 months ago, when she “went into normal duties, but with making modifications for the pain that I was still suffering.”[157]
[157] T23, L17-20.
112The plaintiff described her duties at the Nepean School as assisting students:
(a) off the bus and into the classroom;
(b) unpacking school bags, if needed;
(c) in physical classes such as physiotherapy, and in mainstream classes with literacy;
(d) at mealtimes, with some students who cannot feed themselves requiring full assistance; and
(e) to get into a standing frame, and use other equipment.
113Mr Middleton suggested to the plaintiff that her work duties are “very physical.”[158] The plaintiff said that the most physical aspect of her duties involved “transfers,” because these can vary from standing transfers, in which a student requires supervision, slide board transfers which involves the use of a board to assist a student to move from a wheelchair to another piece of equipment, and hoists which involve the use of slings.[159]
[158]T23, L29.
[159]T24, L5-13.
114The plaintiff described the placing of a sling under a large student as “quite physical, especially when it's your dominant hand that I would normally use to try to get a sling underneath someone, because you've got to get it right underneath to get them safe – keep them safe. So I would tend to use my left side instead, just to save the right one from flaring up.”[160]
[160] T24, L13-20.
115The plaintiff said that she is involved with children of all ages, and that the class she is currently assisting with consists of students ranging in age from 13 to 17 years old.
116The plaintiff agreed with Mr Middleton that her taxable income had increased from $44,129 in the 2018 financial year, to $54,524 in the 2022 financial year. She attributed the increase in her income over this time to pay rises, and in the most recent financial year, the undertaking by her of additional work. She estimated that her taxable income would be around $75,000 in the 2023 financial year.
117In answer to Mr Middleton’s question, as to which of her injuries she considered was the most significant, the plaintiff said that her forearm gave her the “most consistent and intense pain,” and the area where she had the two interosseous nerve injections.[161]
[161]T25, L25-26.
118The plaintiff said that her condition “improves at the time of the injection and then it wears off and flares up again and it has changed in I'm getting pain into the underside of my forearm as well which I wasn't initially getting.”[162] However, the plaintiff agreed that her condition was “definitely better” from when the accident occurred but was “still painful.”[163]
[162]T26, L14-20.
[163]T26, L22-23.
119The plaintiff said that before the accident she had not experienced trouble sleeping, but she does now.[164]
[164] T26, L28 – T27, L1.
120The plaintiff agreed that she was performing manual handling duties with students, however, she had been trained “how to assist a student with minimum effect to yourself so you’re getting the student to do as much as they possibly can themselves and then assisting them with the rest.”[165]
[165]T27, L20-23.
121The plaintiff said that she encounters difficulty picking up a full kettle or a pot and, as an example, she said that she recently found picking up a jug required her to “swap hands because it was too heavy for my right arm.”[166]
[166]T27, L27-28.
122The plaintiff said that her home has a “very small front garden,”[167] and she performs light gardening duties, but prior to the accident, she was “much more active in the garden.”[168]
[167]T28, L7.
[168]T28, L15-16.
123The plaintiff said that she undertakes 90 per cent of the housework without assistance. She does not vacuum despite having two dogs and instead sweeps with a broom because it is “less aggravating to my arm.”[169] She grocery shops and takes her Border Collie for walks, and she agreed that she is independent in her personal care.
[169]T28, L27.
124The plaintiff said she takes two each of Nurofen and Panadol on an “as needs basis,” which is either every day or every second day, and usually at night after work. She agreed that she is not in receipt of prescribed medication for her injury, but she uses heat packs on her right forearm and sometimes across the shoulder at night. The plaintiff said she takes 50 mg of Pristiq daily and has done so since 2013.
125The plaintiff accepted that she had returned to full time employment in her pre-injury duties, but “with modifications.”[170]
Surveillance[171]
[170]T31, L2.
[171]Exhibit D3.
126Mr Middleton directed the plaintiff to surveillance footage taken of her on 7 July 2022, in which she is seen alighting from a car and carrying a shopping bag in her left hand, with another slung over her right shoulder. The plaintiff agreed that from time to time she will have need to use both hands to carry shopping bags “but if I have a heavy beg (sic) it will go in the left hand as opposed to the right.”[172]
[172]T32, L18-19.
127Mr Middleton directed the plaintiff to further surveillance footage taken on 8 July 2022, which identified the plaintiff reversing a car and a number of times using a “hand over hand” manoeuvre of the steering wheel.[173] Mr Middleton suggested that there was no apparent inhibition or restraint on the plaintiff’s ability to drive utilising her right hand. The plaintiff’s answer was less than clear but she said that the use of both hands was a “safety thing” and that when needing to turn the steering wheel a good deal, she will use both hands because she has previously strained her left arm from overuse.[174] In answer to the proposition that she can use her right hand without restriction, the plaintiff said, “it could have been painful on that day and I would still have had to use it.”[175]
[173]T32, L24.
[174] T32, L26-31.
[175]T33, L3-4.
Re-examination
128In re-examination, the plaintiff said that on her return to work in full time hours she modified her duties by restricting leading with her dominant arm when performing tasks.
129The plaintiff said that on her initial return to work her job was in jeopardy as the “return-to-work people, through the TAC and with the principal at the time, was adamant that I should be able to do all duties even though there was an array of much lighter classes.”[176] She said that she was placed in a more difficult class, and she said that there was talk of her leaving, but that she sought help from colleagues and so as to be able to continue.
[176]T33, L21-24.
130The plaintiff said she stopped taking prescription medication because she did not feel they were helping her.
131The plaintiff said that she undertakes the additional work with the former student in order to supplement her income, because she is financially struggling. She said that she works every second Monday, and most Wednesdays. Initially, she worked Saturdays but found that she needed the rest after consecutive working days. She has also filled in during school holidays. She works two evenings a week, because she finds this easier on her arm but it does not pay as well as the Saturday work.
Defendant final address
132Mr Middleton submitted that there is an absence of a firm diagnosis of injury. Mr Middleton emphasised that Professor Davis could not find an injury that had either been diagnosed or, more particularly, was presently prevailing.
133Mr Middleton referred to the report by Professor Davis dated 29 June 2022. Mr Middleton noted particularly the investigations performed on the plaintiff, the suggestion of a possible posterior interosseous nerve compression and, in addition, by reference to Dr Rollinson’s nerve compression study, possible mild carpal tunnel syndrome. However, Mr Middleton relied on the finding by Professor Davis that there were “no signs of acute or chronic denervation within the distribution of the right radial nerve.”[177]
[177]Exhibit D2, DCB 59.
134Mr Middleton suggested the plaintiff’s account that the totality of her right upper limb area is evincing pain, is a remarkable state of affairs given Professor Davis’s conclusions that:
There was no evidence clinically of wasting, sympathetic overactivity or dysaesthesia to touch. There was some very localised pain with any pressure over the right dorsal proximal forearm which seems to be the main nidus of her pain syndrome.
She sustained soft tissue injuries to the right arm in the accident, the main focus being some damage to the right common extensor origin.
She acknowledges that she has improved but still has pain issues in the right arm as previously described that would be consistent with some soft tissue damage.
She also probably has a mild or mild-to-moderate right carpal tunnel syndrome with the numbness at night and confirmed nerve conduction studies. I would regard the accident as being contributory in this regard, but constitutional factors might also be relevant given the fact that she uses the hands a lot in her work and the frequency of carpal tunnel syndrome, particularly in women. She is adamant that this problem only came on after the accident and there was a significant impact to the right arm as previously described.
However there was no clear-cut right wrist injury and carpal tunnel syndrome is of course a form of entrapment neuropathy at the wrist. There is therefore a degree of uncertainty in terms of causality.[178]
[178]Exhibit D2, DCB 61-62.
135Mr Middleton then observed that Professor Davis came to exclude carpal tunnel syndrome. Following a second nerve conduction study by Dr Rollinson, Professor Davis said:
There is no evidence of carpal tunnel syndrome or any other peripheral nerve lesion evident on this comprehensive study.[179]
[179]Exhibit D2, DCB 65.
136Mr Middleton submitted that I should adopt Professor Davis’s findings that investigation had not confirmed the existence of right posterior interosseous nerve entrapment. Moreover, Mr Middleton submitted that Dr Huguenin has not proposed that posterior interosseous nerve compression prevails.
137As to the possibility of extensor tendinopathy, a condition that may be explicable in its aetiology by overuse, Mr Middleton submitted that its presentation could just as readily have its origins in the very active and demanding workplace in which the plaintiff was employed, as opposed to a finding that it is due to ongoing consequences of the transport caused injury.
138Mr Middleton next referred to two reports of Jason Harvey.[180] Mr Middleton submitted that the diagnoses in the first of Mr Harvey’s reports have either not been embraced by Professor Davis, do not relate to the transport accident or the diagnosis of “right carpal tunnel syndrome, diagnosis based on physical examination,”[181] was arrived at without access to the nerve conduction studies that were performed, but when the same had been provided to Professor Davis resulted in it being ruled out by him.
[180]Exhibit P11, PSCB 8-10.
[181] Exhibit P11, PSCB 10.
139Mr Middleton submitted that the lack of identification of organic injury caused by the transport accident, is underscored by Mr Harvey who said that “prognosis is poor given the diffuse nature of the symptomatology that does not specifically fit with the diagnoses that are able to be confirmed on clinical examination and radiographic findings.”[182]
[182]Exhibit P11, PSCB 10.
140Mr Middleton next referred to the reports of Dr Santosh Jacob,[183] and to the findings in Dr Jacob’s first report dated 29 May 2022, that the plaintiff had “significant posterior shoulder muscle and interscapular wasting, although this is bilateral,”[184] a presentation Mr Middleton submitted cannot be attributed to the description of the motor vehicle accident. Additionally, Mr Middleton submitted that at any rate, Dr Jacob had not suggested that the diffuse pain described in his report is connected to a transport accident injury.
[183]Exhibit P12, PSCB 11-15.
[184] Exhibit P12, PSCB 11.
141Mr Middleton submitted that Dr Jacob’s second report dated 31 October 2022 falls into the same category as his first, and shows a doubtful connection to the transport injury, if at all. Dr Jacob reported that “the MRI scan from August showed diffuse altered marrow signal in the metaphysis of the right humerus and it was recommended for clinical correlation. This type of marrow change maybe a component of complex regional pain syndrome, CRPS, resulting from the injury. This is a possibility that can be ruled out if the x-rays show otherwise.”[185]
[185]Exhibit P12, PSCB 13.
142In addressing the surveillance footage, Mr Middleton submitted that it identified the plaintiff behaving in a manner consistent with a functional person.
143In the event that there is an organic injury with impairment consequences to the function of the right arm, Mr Middleton submitted that the list of consequences outlined in the plaintiff’s first affidavit, whilst possibly significant in January 2021, would appear to have ameliorated with the passage of time, as reflected by the plaintiff functioning both at work and at home, albeit with some difficulty, but not to the point where the impositions reach the standard of being assessed as very considerable and, as observed, for example, in TAC v Dennis,[186] Mr Middleton submitted, that even if there are a number of consequences that are significant or marked, they are not very considerable.
[186][1998] 1 VR 702, as referred to in Sabo v George Weston Foods [2009] VSCA 242, 73.
Plaintiff final address
144Ms Pilipasidis commenced by addressing the question whether the plaintiff’s right or left arm could have been impaired as a result of her heavy manual work duties, and overuse. She submitted that the two affidavits from the plaintiff’s colleagues, Lauren O'Toole[187] and Sarah Ward,[188] both record that the plaintiff tries to avoid using the dominant right hand side of her body and favours the left side. She argued that their affidavits support a conclusion that the plaintiff has adjusted her work duties and tries to avoid the heavier aspects of her work, as a result of the injuries she sustained to her right side in the transport accident. Prior to the accident, her ability to apply herself to her duties was unfettered. Ms Pilipasidis further submitted that the affidavits identify that the plaintiff still requires and is provided with support in her duties at the Nepean School but accepted that the plaintiff still uses a hoist and still helps with the physical transfer of students.
[187]Exhibit P2, PCB 38-40.
[188]Exhibit P3, PCB 41-42.
145Ms Pilipasidis submitted that the lay affidavits also support a finding that the plaintiff is stoical, and rarely complains, but that nevertheless, at times has been observed to struggle with her duties. She cited that part of Ms O’Toole’s affidavit in which she deposed:
Even though she doesn’t complain about her right arm symptoms, I can see that she is suffering at work by the look on her face. At the end of a long day I often notice that she is holding her right arm. At these times, by the look on her face and her posture I can tell she is in pain.[189]
I don't want Nicola to be reinjured and I know that her right arm is not as strong. Although she is stoic, and does not complain at school, I have observed her rubbing her right arm and wrist and stretching and flexing her fingers at the end of the day or at the end of a session.[190]
[189]Exhibit P3, PCB 41-42.
[190]Exhibit P2, PCB 40.
146There is no reason for me to exclude regard to these accounts in light of the fact that the affidavits were received without objection and the deponents were not cross-examined.
147Ms Pilipasidis submitted the plaintiff is at a pecuniary disadvantage. She referred to the plaintiff’s evidence that she found herself unable to work six consecutive days (Monday to Friday in her job at Nepean School and Saturday, performing outside work) with the Saturday work said to be more financially lucrative than her additional client work performed of a weekday evening, but this is because she needs two consecutive weekend days to rest otherwise she experiences increased pain.
148As to the identification of injury caused by the transport accident, Ms Pilipasidis submitted that the plaintiff’s GP, Dr Olaniyi confirmed right arm symptoms and referred the plaintiff for treatment to Dr Huguenin, to whose opinion, Dr Olaniyi deferred.
149Ms Pilipasidis relied on the three reports of Dr Huguenin, the first of which proposed a diagnosis of common extensor tendinopathy. The second report was similar, but with a degree of optimism expressed as to the plaintiff’s prognosis. However, Ms Pilipasidis submitted that in her third report dated 28 July 2023, Dr Huguenin was suspicious for posterior interosseous nerve-related pain affecting the plaintiff’s right upper arm. Diagnosis was "biceps irritation at the right shoulder and posterior interosseous nerve irritation at the right forearm with a possible diagnosis of carpal tunnel syndrome. As noted, I also suspect some chronic pain compensation.”[191] Ms Pilipasidis submitted that it would be open for me to find in accordance with Dr Huguenin’s opinion, that the plaintiff is experiencing these symptoms with the condition having become chronic, and with the possibility that further intervention may be required.
[191]Exhibit P7, PCB 112.
150Ms Pilipasidis submitted that the plaintiff established an organic injury for which she has received a treatment regime, that has included blood injections, as well as referral for an orthopaedic opinion for the right shoulder, whereas by comparison, it had not been thought appropriate for the plaintiff to be referred for a treatment plan to address, for example, chronic pain management.
151In addressing the evidence of Dr Flynn, Ms Pilipasidis referred to the 24 February 2020 report that the right elbow pain is likely due to posterior interosseous nerve compression, lateral epicondylitis and mild elbow arthritis and a mild right shoulder impingement.[192]
[192]Exhibit P8, PCB 159.
152Ms Pilipasidis submitted Dr Flynn believed that the transport accident, that is to say, the trauma of it, caused these conditions and said that “these diagnoses are consistent with the stated cause, considering the nature of the described mechanism of injury and the temporal onset of the conditions.”[193]
[193]Exhibit P8, PCB 159.
153Ms Pilipasidis observed that Dr Flynn said she was unaware of any unrelated injuries or pre-existing conditions to account for the plaintiff’s presenting symptoms.
154Ms Pilipasidis noted that Dr Flynn expressed a similar opinion in a further report dated 20 March 2021, and offered a diagnosis of “right elbow forearm, likely due to posterior interosseous nerve compression and common extensor origin and fasciopathy and tear and mild right shoulder impingement.”[194] Dr Flynn thought that the plaintiff’s prognosis remained “guarded in that she is likely to continue to experience ongoing symptoms and functional limitation in relation to the right elbow and forearm.”[195]
[194]Exhibit P8, PCB 164.
[195]Exhibit P8, PCB 164.
155Ms Pilipasidis submitted that I should accept the evidence of Dr Huguenin and Dr Flynn, who had identified the plaintiff as having suffered an injury to the right arm, and although they offered different possibilities to explain her symptomology, they agreed that one or other of the same is causing the plaintiff's symptoms in her right arm, and which have resulted in injections, various investigations, and the manifestation of the consequences to which the plaintiff deposed and a presentation that arose subsequent to the transport accident.
156In her report dated 12 July 2022, Dr Flynn identified right elbow pain, likely due to posterior interosseous nerve compression, lateral epicondylitis, and mild elbow arthritis. She also diagnosed a first CMC arthritis of the right hand, right carpal tunnel syndrome and mild right shoulder impingement and bicep tenosynovitis.[196]
[196]Exhibit P8, PCB 175.
157Ms Pilipasidis said that Dr Flynn in her report dated 6 July 2023, in addressing the plaintiff’s prognosis, said:
The prognosis for Ms Marr is guarded. Ms Marr is likely to continue to experience ongoing pain and symptoms, particularly with activities, and I consider that the conditions are unlikely to resolve. There is a risk of deterioration in the future and worsening base of thumb arthritis, worsening PIN compression, and worsening carpal tunnel symptoms. Should this occur, it is likely to further impact Ms Marr’s capacity for employment, social, domestic and recreational activities.[197]
[197]Exhibit P8, PCB 185.
158Dr Flynn reiterated her earlier opinion of the plaintiff’s right elbow pain, as likely due to posterior interosseous nerve compression, lateral epichondylitis and mild elbow arthritis.
159Ms Pilipasidis submitted that if I accept the diagnosis made by Dr Flynn, of an injury to the elbow due to the nerve compression and lateral epichondylitis, and of the existence of an impingement to the right shoulder and biceps tendon synovitis, and if I accept the consequences described by the plaintiff as considerable, there exists a serious injury referrable to diagnosis.
160Ms Pilipasidis additionally referred to Dr Flynn's report dated 20 March 2021, and her objective finding on testing with a dynamometer:
Upper Extremities
Grip Strength
I noted significant right upper limb pain with attempted strength testing limiting the capacity for testing with a Jamar dynamometer. There was loss of grip strength of the right upper limb in the order of 10 kg decrease.[198]
[198]Exhibit P8, PCB 163.
161Ms Pilipasidis also relied on the opinion of Dr Sullivan, who in his report dated 14 June 2023,[199] addressed the question of the plaintiff’s injuries sustained as a result of the transport accident offered a diagnosis of, “provocation of extensor tendon pathology, soft tissue injury to the right shoulder, aggravation of right forearm interosseous nerve and provocation of neuropathic pain in its distribution.”[200]
[199]Exhibit P9, PCB 191-196.
[200]Exhibit P9, PCB 195.
Analysis and findings
162The starting point in determining this application, is that the plaintiff was involved in a transport accident on 29 November 2018, and that she suffered injury. Neither the fact of the accident nor the occurrence of injury simpliciter was contested by the defendant. The defendant instead sought to agitate an absence of a diagnosis of an organic injury to support the plaintiff’s account of ongoing symptomology. Mr Middleton observed that the plaintiff testified that the only part of her body that was struck within her vehicle was her elbow. She said she did not recall striking her shoulder or thumb. She described a “blood bruise”[201] on the underside of her arm above the elbow immediately following the collision. The plaintiff said however, that it all happened very quickly and she had bruising on the shoulder from the seatbelt. When the plaintiff saw Professor Davis for examination, she reported that she was experiencing “pain in the right shoulder, biceps region and elbow, radiating into the right forearm wrist and hand.”[202] Previously, she had a cortisone injection in her right shoulder.
[201]T18, L12.
[202]Exhibit D2, DCB 59.
163As to the arguments made on behalf of the defendant on a lack of clarity of injury caused by the transport accident, whilst it is uncontroversial that there must be an impairment or loss of body function, which arises as a result of the infliction of an injury complained of and having occurred as a result of a transport accident, and that same is both serious and permanent, seriousness, is assessed by reference to consequences, and their effect on a plaintiff as well as their objective and comparative measure. Although the defendant’s concentration on the identification of injury is understandable, because, after all, a finding of impairment can only occur because of an injury, in a serious injury application, it is the impairment to function that is to be assessed and evaluated, and not the injury.
164I have as well kept in mind that the nature of a serious injury application does not permit anything equating to a full evaluation of competing medical opinions and that can only be undertaken in the event of a trial of a proceeding. This being so, and because a serious injury application is a gateway opportunity for the plaintiff, findings on matters of contested medicine and ongoing causative effects should be approached with a degree of caution.
165Dr Flynn proposed a diagnosis of nerve compression and lateral epichondylitis, and the presence of an impingement to the right shoulder, and of biceps tendon synovitis caused by the transport accident. On testing the plaintiff’s grip strength, Dr Flynn recorded significant right upper limb pain with attempted strength testing, limiting the capacity for testing with a Jamar dynamometer, and a loss of grip strength of the right upper limb in the order of 10 kg.[203]
[203]Exhibit P8, PCB 163.
166I agree with Mr Middleton that Dr Jacob’s finding expressed in his first report dated 29 May 2022 that the plaintiff had “significant posterior shoulder muscle and interscapular wasting (although this is bilateral)”[204] is irreconcilable with the transport accident given that it was the right elbow that was struck. On the other hand, a finding of posterior bilateral shoulder muscle and interscapular wasting does not exclude injury to the right shoulder due to transport accident.
[204] Exhibit P12, PCB 11.
167Professor Davis considered that the plaintiff had sustained soft tissue injuries to the right arm in the transport accident, and with the main focus being some damage to the right common extensor origin,[205] that is to say, an area of injury consistent with the striking of the plaintiff’s elbow region in the transport accident, and his opinion also accords with the plaintiff’s own account of the area that was struck. Professor Davis went on to say that the plaintiff “improved but still has pain issues in the right arm… that would be consistent with some soft tissue damage.”[206] In my judgment, Professor Davis offers a persuasive explanation to account for the plaintiff’s ongoing symptomology in her right arm region. His opinion as to the nature of the injury suffered by the plaintiff, is consistent as well, with the plaintiff experiencing limited but nonetheless ameliorating effects from the injections she has received from time to time. Extensor tendinopathy or lateral epichondylitis, which are the same but by another name, is a condition often enough associated with overuse. Therefore, Mr Middleton submitted it could just as readily, and in fact, more likely, have its basis in the very active and demanding workplace in which the plaintiff has been employed and remains employed, along with her additional client work, than being due to ongoing trauma suffered in the transport accident. However, as against this analysis, the evidence favours a finding that the plaintiff was not troubled in any such manner prior to the transport accident. I am satisfied that the occurrence of trauma sustained by the plaintiff in the accident is the relevant and temporal point of change that marks out the differences in the plaintiff’s before and after presentation.
[205]Exhibit D2, DCB 61.
[206]Exhibit D2, DCB 61.
168As far as biceps tendon synovitis is concerned, that is, inflammation of the tendon sheath (lining) that surrounds the biceps tendon, it is also reconcilable with the reporting by Professor Davis that the plaintiff’s pain issues in the right arm would be consistent with some soft tissue damage.
169I accept Professor Davis’s opinion that the plaintiff does not suffer from carpal tunnel, and I do so because he arrived at this conclusion following review of the subsequent investigations with which he had been supplied.
170I am not satisfied that the plaintiff has proved the existence of posterior interosseous nerve compression. Professor Davis said that there are “no signs of acute or chronic denervation within the distribution of the right radial nerve.”[207] In my judgment, Professor Davis’s reporting is significant, and it is detailed and it addressed and then excluded interosseous nerve compression, among suggested diagnoses derived from the plaintiff’s various reporting. I think the following extract from Professor Davis’s report dated 28 June 2023, is informative:
An MRI of the right elbow and forearm, 24 March 2020 showed no biceps tendon pathology.
There was no compression of the posterior interosseous neurovascular bundle in a study of 11 September 2020. An MRI of the right shoulder 5 October 2020 showed no evidence of biceps tenosynovitis or "SLAP” tear. An MRI of the right wrist, 10 November 2020 showed evidence of severe degenerative changes of the first carpometacarpal joint with joint effusion and synovitis, small minor ganglion formation. There were some other soft tissue abnormalities.
An MRI of the right shoulder, 17 August 2022 showed a small insertional tear of the posterior supraspinatus.
[207]Exhibit D2, DCB 59.
Nerve conduction studies were performed of the upper extremities 4 October 2022 by Dr Mahi Jasinarachchi (since my report 29 June 2022). Importantly, these nerve conduction studies were normal. There was no evidence of diffuse large fibre neuropathy, significant motor radiculopathy or brachial plexopathy in the right upper limb. There is no evidence of carpal tunnel syndrome or any other peripheral nerve lesion evident on this comprehensive study.[208]
[208]Exhibit D2, DCB 65.
171Unquestionably, since the transport accident the plaintiff has been subject to a number of interventions and treatments, and has received injections, and substantial radiology has been performed. The plaintiff gives an account of ongoing symptomology that she says causes interference to a series of her everyday functions that are attendant with pain and losses of and diminution in her enjoyment of life. The fact, of course, that a person undergoes numerous investigations resulting in the proffering of various diagnoses is not determinative of impairment that results in a finding of serious injury from a transport accident.
172The plaintiff’s treatment has very largely comprised injections that have provided her with a temporary reduction in pain. I am satisfied that the aetiology of the plaintiff’s pain is consistent with a soft tissue injury suffered to the right arm in the transport accident, with according to Professor Davis, the main focus having involved some damage to the right common extensor origin, in other words, an area consistent with the plaintiff’s description of having struck her elbow region in the transport accident. The aetiology of the shoulder pain as a separate manifestation of injury due to the transport accident whilst uncertain, has been a consistent account by the plaintiff since soon after the transport accident. Although I am unable to find empirical evidence of separate injury in that region, and I note that Professor Davis referred to an MRI of the right shoulder of 5 October 2020 that was unremarkable,[209] I am satisfied there has been referred pain suffered in consequence of the injury to the common extensor origin and the biceps region of the arm, as was identified by Professor Davis.
[209] Exhibit D2, DCB 59.
173Professor Davis’s explanation and reference to the common extensor and some soft tissue damage due to the transport accident, may also explain the beneficial effects the plaintiff has experienced from time to time from injections, but also the fact that the plaintiff’s recurrence of pain would be consistent with a non-resolution of the same. In fact, as Professor Davis observed, the plaintiff had “improved but still has pain issues in the right arm… that would be consistent with some soft tissue damage.”[210]
[210]Exhibit D2, DCB 61.
174I am satisfied that the plaintiff has established the occurrence of an organic injury in the transport accident in the form of soft tissue damage to the right common extensor region, that is, damage to the connective tissue that attaches to the lateral epicondyle of the humerus (long bone in the upper arm) at the elbow. I am satisfied this injury has caused pain and continues to do so in the plaintiff’s arm. It is feasible that the injury might have extended into the shoulder region by way of referred symptomology. Whatever a full exposition of competing medical explanations might have revealed, I have proceeded on the basis that as a matter of common sense and anatomically, if not diagnostically, to pay regard to the plaintiff’s complaints to the extended region of the right arm and that includes her shoulder region as capable of embracing injury to the body function of the right arm.
175The question that next calls to be assessed is the extent that the body function of her right arm is impaired to a degree that it interferes with activities of daily life and prevents the plaintiff’s pursuit of a range of interests she had before the transport accident to the degree that the same, including any pecuniary disadvantage, is more than significant or marked and, therefore, serious.
Consequences
176In Haden Engineering Pty Ltd v McKinnon,[211] Maxwell P set out various principles to which recourse is invariably had in serious injury applications in an effort to assist in evaluating the “pain and suffering consequences” in a given set of circumstances. In particular, at paragraphs [14]-[15] under the heading “The disabling effect of pain”, the learned President said:
As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.’[212]
As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account.[213] What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her].[214]
[211] (2010) 31 VR 1 (‘Haden’).
[212] Reference was made to Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (‘Dwyer’), [27].
[213] Reference was made to Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [47].
[214]Reference was again made to Dwyer [2008] VSCA 260, [25].
177Additionally, in Haden, Maxwell P, identified a non-exhaustive and non-prescriptive list of ordinary activities which may be affected by a “very considerable” injury, and they include:
·sleep;
·mobility;
·cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
·capacity for self-care and self-management;
·performance of household and family duties;
·recreational activities;
·social activities;
·sexual life; and
·enjoyment of life.[215]
[215] Haden (2010) 31 VR 1, 5-6.
178Despite the recitation of the indicia expressed in Haden,[216] that may generally call for consideration in an application such as this, the particular circumstances of a plaintiff must always be front and centre as part of an analysis and assessment.
[216]Ibid.
179The plaintiff said in her recent affidavit that she is continuing “to suffer from almost constant pains” in her right shoulder and arm.[217] She deposed that the “pain is of differing severity and in different parts” of her right arm and shoulder but includes “frequent burning pain on her forearm and around daily episodes of severe stabbing pain in her right arm. The severe stabbing pain sometimes occurs with use and other times it occurs randomly, even at rest.”[218] She said the pain in her right arm worsened with use. She said that she has tried to “do more with her arm on Dr Huguenin's advice which causes increased pain.”[219]
[217]Exhibit P1, PCB 34, paragraph 23.
[218]Exhibit P1, PCB 34, paragraph 23.
[219]Exhibit P1, PCB 34, paragraph 24.
180The plaintiff said that at the end of a day’s work, she experiences worsening pain, with its severity dependent on what she has undertaken during the course of a day. Plainly enough, and the plaintiff accepted this is the case, some days the additional work she performs for her client, causes her to experience increased pain and flare ups, but she says there is no alternative for her other than to take on the additional work out of financial imperative. In my judgment, the plaintiff should not be disadvantaged because she endures pain in performance of work, that she was not subjected to before the transport accident.
181I accept that the plaintiff suffers occasions of pain in her right arm and the pain can extend to her right shoulder, and the pain can be associated with the performance of some of her employment activities and the extent of work she performs both with the Nepean School and privately.
182I have also had regard to the fact that the extent of pain was not suggested to be of such an order, or of such a frequency, that it prevents the plaintiff from undertaking her employment, although a note by Professor Davis was that at one time the plaintiff was off work because of a flare-up in the right arm lasting about a week.[220] As recently as June this year, Dr Huguenin said the plaintiff possessed a high degree of function but with intermittent pain.[221] Dr Huguenin also went on to say that the plaintiff’s shoulder pain was feeling much better than it had previously. Her elbow had also improved. Dr Huguenin said that the plaintiff was still avoiding carrying shopping bags in her right arm (although on surveillance the plaintiff was observed carrying a bag over her right shoulder but carrying shopping in her left hand) but she was otherwise able to push through and achieve most of her activities of daily living. She had taken on some extra caring work, and this had resulted in some increase in her forearm pain but which had subsequently resolved.[222]
[220] Exhibit D2, DCB 58.
[221] Exhibit P7, PCB 112.
[222]Exhibit P7, PCB 111.
183I have taken into account the plaintiff’s evidence of her financial imperative to not only work her full time job, but also to the taking on of her private client. I accept that the plaintiff is a hard worker and her endeavours following the accident and returning to work is consistent with her attitude and approach generally. I have endeavoured to give appropriate consideration to the proposition that whilst a stoic should not be penalised, neither is it the case, that a persistence with work or activity is invariably due to stoicism in the face of very considerable pain or functional restriction. There are no doubt occasions, that such perseverance may be explicable because the frequency or severity of pain, although real, is not very considerable.
184The plaintiff described an “ongoing weakness in her right arm.”[223] Weakness has been measured to a degree as reported on testing performed by Dr Flynn.[224] I accept there is some weakness.
[223]Exhibit P1, PCB 34, paragraph 26.
[224] Exhibit P8, PCB 163.
185The plaintiff says that there are a number of associated functional limitations she lives with, such as “increased pain when doing various tasks,” including drying herself with a towel, using a hair dryer, putting on her shoes and doing up her bra.[225] These are everyday activities from which there is no getting away, and I accept that to be subject to pain in attending to them is an important consequence.
[225]Exhibit P1, PCB 35, paragraph 33.
186Although the plaintiff said she does not encounter trouble falling asleep, she said her sleep is light, and she does not feel rested on waking. She said she wakes with “pain, pins and needles, and numbness” in her right arm and hand each night.[226] The plaintiff was not challenged about the extent of her sleep disturbance, other than it being asked of her if she had experienced something similar during other distressing occasions in her pre transport injury life, to which the plaintiff said she had, but not of the order that she has suffered since the transport accident. I am satisfied that to be disturbed each night as she described is a significant matter. The plaintiff’s non-restorative sleep is not, however, of an order that results in her being unable to fulfil her employment duties, and to attend to the physical and care needs of her private client. The plaintiff deposed that she had been an avid reader prior to her injury, but now finds herself too tired to read of a night and although she did not directly attribute this change due to lack of sleep, it is a reasonable assumption to make, given the plaintiff had previously been working hard and was apparently able enough to pursue her love of reading. It is a consequence that I have taken into account.
[226] Exhibit P1, PCB 34, paragraph 26.
187The plaintiff said that physically, she suffers worsening symptoms in her right arm after about 15 minutes of driving. Although the plaintiff appears to be able to drive more than 15 minutes, after about this time, she experiences a worsening in her right arm symptoms. Logically, this places limits on the plaintiff’s autonomy in driving extended times.
188The plaintiff described labouring from a poor memory,[227] and that she will “struggle” with her short-term memory.[228] She said she is easily distracted at work, and often forgets what she is doing. There is no formal finding or evaluation that has been undertaken that addresses the matter of the plaintiff’s working memory or cognitive state generally, and its relationship to the physical injury or pain, and there is an absence of a medical basis to connect such a state of affairs with the consequences of the transport accident injury. There is nothing in the plaintiff’s colleagues’ affidavits of them having observed moments of distraction or lapses in the plaintiff’s memory in going about her duties. I do not equate the complaint as a consequence caused by the transport accident injury.
[227]Exhibit P1, PCB 15, paragraph 19 and PCB 21, paragraph 24.
[228]Exhibit P1, PCB 35, paragraph 32.
189The plaintiff deposed that prior to the accident she enjoyed gardening but she is now reduced to limited gardening.[229] Elsewhere she deposed that she will “perform only minimal gardening,” as more than this “increases the symptoms in her right arm.”[230] I accept that this is a consequence to the plaintiff that it is of some importance to her.
[229]Exhibit P1, PCB 16, paragraph 20 and PCB 23, paragraph 37.
[230]Exhibit P1, PCB 35, paragraph 34.
190The plaintiff deposed that she has difficulty performing some housework.[231] She said that that she continues to “struggle to perform housework due to the increased pain it causes.”[232] However, she said she can manage “the essentials such as dishes and washing,” and she sweeps because it's easier than vacuuming.[233] She avoids harder tasks that she had been able to perform prior to the accident, such as “washing ceiling fans and walls.”[234] These of course, are not everyday chores, but the plaintiff says her home is not maintained to the standard she did before injury. I have taken the reductions in her domestic activities into account as a consequence as a result of her injury.
[231]Exhibit P1, PCB 16, paragraph 20 and PCB 23, paragraph 38.
[232] Exhibit P1, PCB 35, paragraph 35.
[233] Exhibit P1, PCB 35, paragraph 35.
[234] Exhibit P1, PCB 35-36, paragraph 35.
191The plaintiff said that prior to the accident she attended the gym approximately three times per week and she would “do different classes including yoga, pilates, tai chi, spin, high intensity cardio, and body jam dance classes.”[235] She said that she is no longer able to attend the gym and classes. I accept that the variable extent and nature of the plaintiff’s pain that I am satisfied from which she suffers would make a consistent and regular and reliable pursuit of her fitness regime problematic, and therefore, is a consequence directly attributable to the transport accident. I accept the loss of her ability to plan and participate in her fitness by way of the forceful and high intensity exercises she identified is a matter of importance. A kayak her daughters purchased as a gift for her has gone unused.
[235] Exhibit P1, PCB 36, paragraph 36.
192Prior to the accident, the plaintiff said she socialised with friends most weekends, and she “enjoyed going out for dinners, drinks, movies, and live music.”[236] However, nowadays, she said that she usually only goes out with friends about every second month. I am satisfied that the plaintiff’s pain may account for the change the plaintiff recounted in the breadth of her social dynamic. I have taken into account that the plaintiff has formed a new relationship and she told Mr Middleton that she and her partner socialise, and that in this aspect of life things have improved.
[236] Exhibit P1, PCB 36 paragraph 38.
193The plaintiff said that her intimate life has been “drastically affected,” and it now lacks spontaneity and she needs to give greater thought to what she is “physically doing in the bedroom now to avoid pain and discomfort.”[237] The plaintiff’s evidence is not one of a loss of sexual interest or loss of libido but that there is a greater degree of forethought she needs to bring to her physical relationships. I accept this aspect of her sense of self was important to her, and the change she has undergone affects her.
[237] Exhibit P1, PCB 36, paragraph 39.
194The plaintiff’s continuing employment at the Nepean School and her return last year to her suite of pre injury duties, along with the taking on of an external client’s care needs, also calls to be considered as part of the assessment of the plaintiff’s application by reference to any pecuniary disadvantage together with her pain and suffering consequences in determining whether the consequences of the transport accident are serious.[238] There is no evidence to suggest a risk to the plaintiff’s employment created by her injury. However, the fact that the plaintiff’s income has increased does not rule out a risk of pecuniary disadvantage in the future. The plaintiff is fortunate to have remained in employment with her long standing and pre-injury employer, and despite her ongoing impairment, she has proved able after some time, of returning to her pre injury duties although remaining mindful of how she goes about their performance, and with the provision of assistance on occasions. Even if it could be said that the plaintiff might always be able to find and hold down employment notwithstanding her injuries, this does not preclude a consideration of pecuniary disadvantage caused by a real limitation to function that has been imposed on the plaintiff in respect of other employment that she might need to find. Moreover, the extent of the plaintiff’s capacity to undertake additional client work that she had previously performed on weekends, and was said to be more remunerative, but that she could not sustain because of the aggravating effects of pain and the need for two consecutive days not working in order for her pain to settle, is sufficient a basis for me to have regard to a pecuniary disadvantage as part of the overall assessment of seriousness. I add that although the plaintiff’s return to work is an important factor in considering the seriousness of the consequences of her injury, it is not the case that a return to employment is a determinative consideration against a finding of seriousness. The plaintiff does not perform her duties in an unimpeded manner. The effects of work in contributing to increased pain is important. The plaintiff’s to return to work and the taking on of a private client is as consistent with her stoicism and of necessity in the face of pain, than it is of an absence of pain or of pain that is not of great moment.
[238]Humphries [1992] 2 VR 129, [40].
195I have had regard to the following passage from the Court of Appeal in TTB SMS Pty Ltd v Reading,[239]that I consider to be apt:
Whilst these impairments are certainly not trivial, in our view, they cannot be fairly described as ‘at least very considerable.’ The evaluation required of the trial judge, and this Court, involves a comparison of the worker’s impairment not just with other impairments of the hand, but also with other types of physical impairment that may be suffered, including impairment of the brain, the spine and large joints such as the knee and shoulder. Those other physical impairments may involve constant pain, significant medical treatment and medication. They may involve sleep deprivation, or an inability or reduced ability to socialise or work.[240]
[239] [2020] VSCA 203 (‘Reading’).
[240] Ibid, [31].
196Whilst recognising that decisions such as Reading,[241] offer guidance on the type of judgment called for in the determination of a serious injury application relying on injury under sub-paragraph (a) of the definition of ‘serious injury’, in assessing whether the plaintiff’s impairment is ‘at least very considerable’ weight must be given to the adverb ‘very.’ As Callaway JA said in TAC v Dennis:[242]
Many [impairments][243] are considerable, in the sense that they are important or substantial, without being very considerable.[244]
[241] Ibid.
[242] [1998] 1 VR 702.
[243] The claim related to a severe long term behavioural disturbance.
[244] TAC v Dennis [1998] 1 VR 702, 703.
197On balance, I am satisfied that the plaintiff’s impairment to the arm and the upper extremity is an impairment to the function of her dominant limb, and visits upon her variable but chronic pain and disturbed sensation which has led to diminution and losses to her enjoyment of life.
198There was no attack on the plaintiff’s credit. I regard the plaintiff as a woman who endeavoured to give her evidence honestly. Although the plaintiff’s account of the frequency and severity of her pain may be greater than say, Dr Huguenin’s recent report of improved functionality and improvement in the shoulder and forearm, I have no reason to reject the plaintiff’s evidence of ongoing pain and restrictions that I am satisfied are despite being variable in severity are chronic in nature. The plaintiff has had a treatment regime, but not a significant one such as has involved surgical intervention. The nature of the injury, the investigations undertaken and the various diagnoses and the finding by Professor Davis, is such that one may appreciate that management rather than intervention is likely to be the plaintiff’s new normal. Sleep interruption and deprivation is significant and the restorative effects of sound sleep suggests at least an interference with the plaintiff’s pursuit and love of reading with the pain made worse by day’s end following work and with a need to take every night two tablets each of Nurofen and Panadol as well as recourse to topical applications and heat packs.
199Mr Middleton in the course of final address submitted that although the list of consequences outlined in the plaintiff’s first affidavit, might have been significant back then, they would appear to have ameliorated over the passage of time with the plaintiff clearly functioning both at work and at home, albeit with some difficulty, but not to the point where the narrative of ‘very considerable’ is satisfied. I am unable to adopt the defendant’s ultimate submission. The return to work, albeit in the performance of pre injury duties, is accompanied by pain, and on occasion requires assistance to be provided, and there is little else that I have assessed that the plaintiff has either lost or had diminished as a result of injury that has been ameliorated over time.
200I am conscious that the Act operates to restrict the availability of common law damages to persons whose impairments are as a result of a transport accident of ‘very considerable’ magnitude. However, after examining and considering all the evidence, and when comparing the consequences of the plaintiff’s injury, to the range of possible consequences, and comparing what has been lost with what the plaintiff has retained and having regard to pecuniary disadvantage, on balance, I am satisfied that the consequences are more than significant or marked or are at least very considerable when assessed by reference to their effect on the plaintiff and by regard to range.
201I am satisfied that the transport accident has caused to the plaintiff a long term impairment of function that is severe within the meaning of section 93 of the Act. Mr Middleton suggested by reference to Dr Huguenin that the impairment to function may not be long term or permanent but I am satisfied to the contrary. Despite interventions and despite the passage of time the impairment to function and the associated pain and losses and limitations I have described prevail. It is reasonable to think that the plaintiff will likely require further injections and to remain under the care of at least Dr Huguenin.
202For the reasons explained, I consider that the plaintiff has discharged her onus of showing that the pain and suffering consequences of her injury, have resulted in an impairment which is “fairly described as being more than significant or marked, and as being at the very least very considerable.”[245] The application is therefore granted.
[245] Section 325(2)(c) of the Act.
203I will hear the parties on the form of orders and on costs.
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