Mayath v Transport Accident Commission
[2022] VCC 335
•15 March 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-05787
| ALUEL MAYATH | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 December 2022 | |
DATE OF JUDGMENT: | 15 March 2023 | |
CASE MAY BE CITED AS: | Mayath v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 335 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Injury to the right shoulder, neck and lumbar spine – second transport accident – causation – consequences
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Johns v Oaktech Pty Ltd [2020] VSCA 10; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Hettiarachchi v Transport Accident Commission [2023] VSCA 27; Woolworths Limited v Warfe [2013] VSCA 22; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Stevens v DP World Melbourne Ltd [2022] VSCA 285; Grace v Elmasri [2009] VSCA 111; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: Leave granted to commence proceedings for common law damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Czarnota with Mr L Howe | Forbes Reichman and Galasso |
| For the Defendant | Mr S Pinkstone | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1On 5 December 2013, the plaintiff, Aluel Mayath, was driving home from work along Dynon Road, Footscray when another car rear-ended her stationary vehicle (“the first transport accident”).
2Ms Mayath seeks leave pursuant to s93 of the Transport Accident Act 1986 (“the Act”) to commence proceedings for common law damages in relation to injuries she sustained in the first transport accident to her right shoulder, neck and spine under sub-paragraph (a) of the relevant definition of “serious injury”. In order to succeed, she must satisfy the Court that she has sustained a serious long-term impairment or loss of a body function within the meaning of sub-paragraph (a) of s93(17) of the Act.
3The injuries relied upon are:
(a) the neck;
(b) the spine, including the cervical and lumbar spine; and
(c) the right shoulder.
4Despite Particulars of Injury filed 7 January 2020, neither the left shoulder injury,[1] nor the psychological injury (paragraph (c) claim)[2] is relied upon. In closing submissions, no reliance was placed upon the injury to the lumbar spine.
[1] Transcript (“T”) 2, Line (“L”) 19
[2] T14
5The claim is complicated by Ms Mayath’s involvement in a second transport accident on 7 April 2015 in non-compensable circumstances (“the second transport accident”). The Transport Accident Commission (“TAC”) submits that the primary issue is whether or not the plaintiff has one or more serious injuries which result from the first accident.
6It is not in dispute that:
(a) Ms Mayath suffered a compensable neck injury in the first transport accident. The TAC accept that Ms Mayath suffered from neck pain due to a soft tissue injury,[3] with referred pain into both shoulders[4] (but submit that this injury has now resolved);
(b) Ms Mayath had two months off work after the first accident;
(c) prior to the first transport accident, Ms Mayath suffered from back and neck pain, at least on an intermittent basis, resulting in prescription of Voltaren for her low back, and Panadeine Forte for a painful and stiff left-sided neck condition;[5]
(d) between transport accidents, Ms Mayath experienced intermittent pain in her neck and shoulders, for which she sought treatment, including physiotherapy and strong prescription pain medication;
(e) after the second transport accident, there was a focus in terms of treatment on the plaintiff’s bilateral shoulder conditions.[6]
[3] T81
[4] T94
[5]See clinical notes of Springvale Family Healthcare, Joint Court Book (“JCB”), pages 175 and 176
[6] T111
7The issues in the case are:
(a) whether the plaintiff suffered a discrete injury to the right shoulder in the first transport accident;
(b) whether the plaintiff has discharged her onus to delineate any impairment consequences resulting from injuries sustained in the first transport accident; and
(c) whether the plaintiff has one or more serious injuries which result from the first accident.
8The TAC has also put in issue the reliability of the plaintiff’s subjective complaints as to her symptoms and pain.
Principles
9Ms Mayath must establish that she has suffered a long-term impairment or loss of function to her spine or right shoulder within the meaning of s93(17) of the Act. The seriousness of such an impairment is determined by whether the pain and suffering and loss of enjoyment of life consequence, including any pecuniary disadvantage consequence, “when judged by comparison with other cases in the range of possible impairments or losses, [can] be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[7]
[7] Humphries and Anor v Poljak [1992] 2 VR 129 at 140
10The relevant principles that attach to an application of this kind are not in dispute.
11First, the credibility of the plaintiff is central to the determination of the application. The assessment of Ms Mayath’s credibility bears upon consideration of her evidence regarding the seriousness of her injuries, and consideration of the accuracy of histories given to doctors.[8]
[8]Johns v Oaktech Pty Ltd [2020] VSCA 10; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439 at 488
12Second, in determining Ms Mayath’s pain and suffering consequences, the factors indicative of serious injury identified in Haden Engineering Pty Ltd v McKinnon[9] are relevant. In determining the pain and suffering consequences of any injury, it is necessary to consider not only “what the plaintiff says about the pain (both in court and to doctors)”, but also “what the plaintiff does about the pain (for example medication, rest, seeking medical treatment)”, as well as “what the doctors say about the extent and intensity of the plaintiff’s pain” and “what the objective evidence shows about the disabling effects of the pain”.[10]
[9](2010) 31 VR 1 (“Haden Engineering”)
[10] Ibid at paragraph [11]
13Third, a plaintiff who is “prepared to put up with [her] pain and suffering and get on with [her] business as best [she] can” should not be treated less favourably than a plaintiff who has resigned themselves to injury.[11]
[11] per Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 269 at paragraph [2]
14Fourth, caution should be exercised in the consideration of clinical notes, including inconsistencies regarding histories and symptomology described by plaintiffs and recorded in notes or reports of treating practitioners. As the Court of Appeal observed in Hettiarachchi v Transport Accident Commission:[12]
“… a Court needs to be careful in accepting apparent statements of fact made by patients (or plaintiffs in a medico-legal setting) and recorded by medical practitioners and contained in their notes or reports. At times what might appear to be a statement of fact may simply be an observation or impression of the doctor. Or, in some cases, may simply be an incorrect record of what was said during a busy consultation.
Usually, the recording of such statements by the doctor has one purpose: to assist in forming a diagnosis of the patient (or plaintiff’s) condition. They are not intended to form part of the forensic arsenal of the cross-examiner. Caution must be exercised in the use of such material, particularly when the fate of the application or claim may, at least in part, turn upon the accuracy of the asserted admission against interest. This is all the more so when in most serious injury applications and personal injury trials the relevant medical practitioner is not called to give evidence. … .”[13]
[12] [2023] VSCA 27
[13]Hettiarachchi v Transport Accident Commission (ibid) at paragraphs [57]-[58]; see also Woolworths Limited v Warfe [2013] VSCA 22 at paragraph [112]
15Finally, the question of the seriousness of an injury is to be resolved upon all the evidence before the court.[14]
[14]Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 at paragraph [35]; confirmed in Jayatilake v Toyota Motor Corporation (2008) 20 VR 605 at paragraph [17]
Background
16Ms Mayath was born and educated in Sudan. She is currently aged forty-eight years, and a single mother with four sons. Presently, she is of no fixed address and living at a friend’s house with her seven-year-old son.
17Prior to coming to Australia, she learned English at school and worked for foreign humanitarian organisations, and also in childcare and the disability sector in Sudan. In 2001, she immigrated to Egypt as a refugee and eventually arrived in Australia in August 2008. Ms Mayath, on her own account, has had a “very difficult and sad past”, involving extreme sexual violence in Sudan and as a refugee in Egypt. She experienced some depression over the years as a consequence of these experiences, but it did not stop her from studying, working and getting on with her life.
18She initially lived in Adelaide, where she completed her English language visa requirements and completed a Certificate III in Children’s Services.
19Ms Mayath moved to Melbourne in 2013, where she completed a Diploma in Children’s Services in Footscray. She was living in Springvale at the time.
20I accept the plaintiff’s evidence that she had commenced work as an educator at Happy Kidstart Family Day Care in Footscray in or about late 2013, prior to the first transport accident.
21In the first transport accident, on 5 December 2013, Ms Mayath was stopped at a red light when another vehicle crashed into her. Her vehicle was pushed into a different lane and hit a pole. Her head hit the steering wheel and Ms Mayath believes she lost consciousness for “a bit”.[15] She felt immediate pain in her neck and back, and had a headache. Police and ambulance attended the scene. An ambulance officer told her to take Nurofen for the next few days, and that her symptoms should resolve. I accept this evidence, which explains any perceived delay in attending upon her general practitioner.
[15] JCB 11
22Her symptoms persisted, and she attended on her general practitioner, Dr Peter Vu, on 11 December 2013. In the context of her report of headaches and neck stiffness, she was referred that same day for a CT scan of her brain and an x-ray of her cervical spine. Those investigations demonstrated a lack of cervical lordosis indicative of muscle spasm but no fracture. The brain scan showed no abnormality.[16]
[16] JCB 178
23Following a further attendance on Dr Vu on 13 December 2013, she moved to Sunshine West and commenced seeing Dr Edward Oludare, general practitioner, at the Emanuel Medical Centre.
24Her unchallenged evidence was that following the accident Ms Mayath had physiotherapy treatment for pain in her neck, back, shoulders and arms, and had two months off work.
25On 27 February 2014, Ms Mayath provided a history to Dr Oludare of bilateral shoulder and back pain, and restriction of movement in her shoulders. She was tender in her bilateral shoulder region and at L4-5 in her lumbar spine. Dr Oludare referred her for a CT scan of her lumbar spine and an ultrasound of the left and right shoulder. He prescribed Brufen, 400 milligrams, twice a day for three days for her pain.
26The report of the CT scan of her lumbar spine conducted 27 February 2014 records no significant disc bulge or spinal canal stenosis.
27Despite the referral, there is no evidence of ultrasound investigation of her shoulders available from this time.
28Ms Mayath presented to Dr Oludare with neck pain on 19 May 2014, “with radiculopathy symptoms to both shoulders. ? bilateral C5 compression”. Dr Oludare referred her for an MRI scan of the cervical spine. The resulting MRI scan conducted on 20 May 2014 showed no significant disc degeneration or nerve root impingement, but posterior osteochondral bars were detected at multiple levels, causing some thecal indentation, and cord indentation at C5-6.
29On or about 22 May 2014, Ms Mayath attended Back In Motion Health Group for physiotherapy treatment, providing a history to Ms Tara Boylan, physiotherapist, that in the past week she had developed moderate-severe bilateral shoulder pain, and that she was unable to sleep due to the pain or carry anything heavy. Upon examination, she was found to have very tight and tender trapezius, rhomboids and suboccipital muscles, and right cervical facet joint pain with associated restriction in movement. After three sessions, Ms Boylan reported to Dr Oludare that Ms Mayath’s “neck pain has settled considerably”.
30By this stage in 2014, Ms Mayath was pregnant with her fourth son. As a consequence of the pregnancy, she did not have any further treatment or medication for her neck and right shoulder, and returned to her pre-injury job at Happy Kidstart Family Day Care Centre until January 2015, when she gave birth to her youngest son. She then returned to day care work again in March 2015.
31Her taxation returns reflect her work in family day care. Her evidence, which I accept, included that she was looking after three children in the 2014 tax year, and then five children in the following year, up until immediately before the second transport accident.
32During this period, she struggled to perform her normal duties – due to pain in her shoulders, neck and low back – but had to continue working as a single mother in order to pay the rent, school fees and otherwise provide for herself and her family.
33On 1 April 2015, six days before the second transport accident, Ms Mayath again attended on her general practitioner for neck pain. Dr Oludare found restricted movements and tenderness at C4-5, and prescribed Brufen.[17]
[17]JCB 192
34In the second transport accident on 7 April 2015, Ms Mayath lost control of her car whilst driving around a roundabout. There had been heavy rain that day. Her car hit a bridge and ended up in a ditch. She injured her low back, right hip and right leg. She was taken by ambulance to Footscray Hospital, where she was admitted for three days.
35The hospital’s Discharge Summary[18] records treatment for abdominal, cervical and thoracic spine tenderness, chest wall tenderness and right hip discomfort. Following radiological, orthopaedic and neurosurgical investigations and assessment by a physiotherapist excluding acute injury (including any cervical spine fracture[19]), Ms Mayath was discharged upon her pain being adequately controlled with analgesia.
[18] JCB 172
[19] CT scan on 7 April 2015: JCB 156
36Ms Mayath attended her general practitioner, Dr Oludare on 11 April 2015 reporting trauma to her neck and low back in the second transport accident.
37There is also reference to “neck pain” in Ms Mayath’s TAC Claim for Compensation dated 8 May 2015.
38I reject the plaintiff’s submission that there was no evidence of injury to the cervical spine in the second transport accident.
39It was not until 14 April 2015 that the plaintiff first attended her general practitioner in relation to bilateral shoulder tenderness and some movement restriction, without swelling. His clinical notes record a positive finding of aggravation of cervical spondylosis. Dr Oludare referred her for ultrasound, which excluded rotator cuff tears, but revealed the presence of bilateral impinging subacromial bursitis.[20]
[20] Ultrasound of the right and left shoulders on 12 May 2015: JCB 161
40On 14 and 26 May 2015, Ms Mayath again attended on Dr Oludare for treatment of her bilateral subacromial bursitis.
41On 8 June 2015, by that stage having seen Ms Mayath on a number of occasions since 2014 for shoulder symptoms, and excluded rotator cuff tear injury in the second transport accident, Dr Oludare reported to the plaintiff’s solicitors[21] ongoing headaches, neck and shoulder pain as a consequence of the first transport accident without any reference to the second transport accident. In the context of the absence of any record of complaints of pain or of radiological investigation of the right shoulder by clinicians at the Western Hospital whilst Ms Mayath was an inpatient, I infer that no one at the time, including her treating doctor and the plaintiff herself, considered that she had sustained a discrete injury to the right shoulder in the second transport accident.
[21] JCB 126
42I accept the TAC’s submission that the plaintiff had soreness in her neck, head and shoulders following the second transport accident. I accept Ms Mayath’s evidence, which is consistent with the clinical records, that whilst she experienced neck and shoulder pain following the second transport accident, it had also been present before it;[22] and further, that the pain in her right shoulder then returned to the same level as it was following the first transport accident.[23]
[22] T58 and T63
[23] The plaintiff’s first affidavit sworn 25 June 2021 (“the plaintiff’s first affidavit”), paragraph 15
43Ms Mayath had approximately two months off work after the second transport accident, before resuming work in family day care in order to support herself and her family.
44In June 2015, Ms Mayath recommenced attending on physiotherapists, Back in Motion. At Ms Mayath’s first attendance on 26 June 2015, physiotherapist, Megan Smith, recorded:[24]
“bilat shoulder pain, especially when sleeping
…
PHx: MVA 2013 Dec, severe whiplash Cx #, R shoudler (sic) injury (?).”
[24] JCB 255
45From June to December 2015, Ms Mayath attended on Megan Smith at least every fortnight, although it was often more frequently.
46Ms Mayath also accessed hydrotherapy and performed at-home exercises throughout 2015.[25]
[25] JCB 461
47In the years that followed, Ms Mayath pushed through the pain in her right shoulder and neck so that she could keep working, but every day was a struggle because of the pain. She continued to attend her general practitioner in relation to this pain and loss of function in her right shoulder and neck.
48By late January 2018, Ms Mayath said:
“I could not keep going anymore as the pain in my right shoulder and separately in my neck was too much for me to take. So, I stopped working and have not been able to return to any work since this time.”[26]
[26] The plaintiff’s first affidavit, paragraph 18
49A bilateral shoulder ultrasound in February 2018 showed bilateral subscapularis tendinosis, and a small partial-thickness bursal surface tear on the right side. There was no associated subacromial bursitis or evidence of impingement, however, there was a suggestion of a component of adhesive capsulitis on dynamic assessment.[27]
[27]JCB 165
50The pain and other problems in her right shoulder persisted, and Ms Mayath was referred by Dr Oludare to orthopaedic surgeon, Mr Russell Miller, in March 2018.
51Mr Miller diagnosed impingement syndrome in the shoulders, and arranged for Ms Mayath to undergo an injection of local anaesthetic and cortico-steroid into her right shoulder subacromial space.[28] This procedure gave her some relief but only for about a month or so.[29]
[28] JCB 136
[29] The plaintiff’s first affidavit, paragraph 20
52In his initial report dated 5 April 2018, Mr Miller made findings relevantly as follows:
“Shoulders
The client has symptoms in the shoulders. These are likely to reflect referred pain from the cervical spine, possible rotator cuff pathology with impingement and possible symptoms in relation to the chronic pain syndrome. The client is still undergoing evaluation of the shoulders and it is too early to offer a long term prognosis.[30]
…
[30] JCB 136
In my opinion it is likely that the motor vehicle transport accident has contributed to the evolution of the client’s symptomology.”[31]
[31] JCB 137
53On 1 August 2018, Mr Miller reviewed Ms Mayath, who presented with ongoing problems with both her shoulders. Her symptoms were worse on the right side. An MRI scan of the right shoulder revealed tendinopathy.[32]
[32] JCB 144
54On 26 February 2020, Mr Miller operated on Ms Mayath’s right shoulder, performing a subacromial decompression and clavicle ostectomy arthroscopically. His report of the surgery included:
“… Gleno-humeral arthroscopy revealed that there was slight subluxation of the anterior humeral head. The articular surfaces were normal. There was a tight sub-acromial space, impinging osteophytes on the anterior aspect of the clavicle and sub-acromial bursitis. Arthroscopic sub-acromial decompression was performed including division of the coraco-acromial ligament. The thickened sub-acromial bursa was excised and impinging osteophytes on the inferior aspect of the clavicle were excised. Given the findings, I believe the prognosis would be guarded … .”[33]
[33] JCB 145
55In confirming his view that the right shoulder injury related to the effects of the first transport accident, Mr Miller’s opinion in 2020 as to the diagnosis and prognosis of the shoulders was:
“…The client has ongoing problems with both shoulders. The clinical and radiological features suggested impingement syndrome. It is also likely that this has been complicated by the development of a chronic pain syndrome.
She has undergone right shoulder surgery for impingement syndrome. There was labral pathology and disease in the acromio-clavicular joint. She is still recovering from that surgery and it is too early to offer a long-term prognosis.”[34]
[34] JCB 145
56Neither of Mr Miller’s reports record a history of the second transport accident. This is in direct contradiction to Ms Mayath’s evidence that when she went to see Mr Miller, she told him about both accidents.[35] Exercising appropriate caution in considering the history recorded in these reports, on the evidence before me I cannot exclude that Ms Mayath told Mr Miller about the second transport accident. In all of the circumstances though, the absence of a record of this history is significant, and, accordingly, I place no weight on Mr Miller’s opinion as to the connection between the right shoulder condition and the first transport accident.
[35] T71
57Following the right shoulder surgery, Ms Mayath continued to have symptoms in her right shoulder, and upon review by Dr Oludare in March 2020, was found to have a frozen shoulder. An ultrasound of the right shoulder conducted on 20 October 2020 revealed subdeltoid-subacromial bursitis with impingement; and the same procedure on 1 April 2021 confirmed the ongoing presence of subdeltoid bursitis with the recommendation of ultrasound-guided steroidal injections if clinically indicated.
58Ms Mayath had intensive physiotherapy including at Advance Healthcare during 2020, 2021 and 2022; and after her right shoulder surgery in February 2020, as part of her surgery rehabilitation.[36]
[36] The plaintiff’s first affidavit, paragraph 20
59In late 2020, Ms Mayath underwent a multi-disciplinary pain management assessment for her chronic pain at Advance Healthcare by Dr Malcolm Ong, pain medicine practitioner,[37] Mr Daniel Di Mauro, physiotherapist, and Mr Joon Choi, clinical psychologist. By March 2021, Ms Mayath had completed an extended twelve-week pre-program component of a pain management program at Advance Healthcare followed by an intensive eight-week pain management program in April and May 2021 which improved both her pain and overall condition (particularly her low-back pain related disability).[38]
[37]Senior medical practitioner, special interest in multi-disciplinary pain management, occupational and environmental medicine and accident and emergency and trauma medicine
[38] JCB 470
60The program was marked by flare ups of cervical and right shoulder pain, and unfortunately, by the time of her review by the Advanced Healthcare team in March 2022, Ms Mayath had regressed significantly. Overall, she presented with high levels of pain and low levels of activity, and was struggling with the management of her pain and associated distress.[39]
[39] JCB 148
61In relation to her spine, a further MRI scan in April 2021 revealed worsening cervical degenerative changes on the right, with likely contact of the right C7 exiting nerve root at the foramen. An x-ray taken on 16 May 2022 revealed mild to moderate cervical spine spondylosis in the cervical spine, and mild lumbar spondylosis in the lumbar spine. Clinical findings relevantly included weakness or pain in muscles around the shoulder area bilaterally.
Was the Plaintiff a credible witness?
62I find that, in general, Ms Mayath was a credible witness. She did her best to answer questions directly, without prevarication. It was apparent though that despite doing her best, she had difficulty understanding some of the questions and concepts put to her, and at times in expressing herself. When considering the reliability of the plaintiff’s evidence, I take into account her background involving trauma, and the presence of an underlying Post-Traumatic Stress Disorder (alternatively, an Adjustment Disorder with depressive and traumatisation features inextricably linked to her underlying medical condition)[40][41]
[40]Report of Dr Lester Walton, consultant psychiatrist, dated 30 October 2015, JCB 19, paragraph 24; report of Dr Justin Lewis, consultant psychiatrist, dated 3 November 2020, JCB 38, paragraph 48
63The TAC submitted that the apparent absence within Ms Mayath’s 2014 income tax return of any record of income referrable to her employment at the Happy Kidstart Family Day Care Centre in Footscray in December 2013 meant that I should not accept her evidence as to the reason she was in Footscray at the time of the first transport accident. Further, that the date Ms Mayath registered an Australian Business Number in February 2014 was inconsistent with her working for Happy Kidstart Family Day Care Centre at the time of the first transport accident.
64At the relevant time, the plaintiff was living in Springvale. It was not in dispute that she had trained and worked in day care, and, on the balance of probabilities, I accept that at the time of the first transport accident, she was working for Happy Kidstart, and present in Footscray for that purpose.
65The cross-examination as to the contents of her income tax returns demonstrated not only that she was unable to explain these documents, but that she was doing her best to articulate her understanding of the figures recorded in a frank and honest manner. I do not accept the TAC’s submission that Ms Mayath’s answers established she was deliberately trying to mislead the Court or that she was otherwise unreliable in her evidence.
66Ms Mayath’s evidence did include conflicting accounts as to the extent of pain in her neck experienced as a consequence of the second transport accident.
67In paragraph 15 of the plaintiff’s first affidavit sworn 25 June 2021, Ms Mayath stated:
“I was sore in my neck and shoulders from [the second transport] accident...”
68I accept this evidence, which is consistent with various other objective records of her symptoms at the time, including her Western Health Discharge Summary Form, her TAC Claim Form and other clinical notes of her general practitioner, Dr Oludare.
69Under cross-examination, however, Ms Mayath’s evidence included that:
(a) she could not remember having neck pain on the day;
(b) she denied having “significant neck pain as a result of the second accident”;[42]
(c) the second transport accident had not exacerbated the neck pain she already had. She said:
“When I have the second accident, I already have the neck pain. It never stop, it never go away and that's why I was on medication. And the second accident, it's my chest and my right hips and my lower back.”[43]
[42] T56-57
[43] T43
70Counsel for the TAC did not put the contents of paragraph 15 of her first affidavit to Ms Mayath specifically in cross-examination, which may have clarified the issue. It is possible that Ms Mayath may have been confused about this line of questioning, having regard to the contents of her affidavit.
71It is likely that there were both cultural and language issues at play in the course of the cross-examination of the plaintiff. Ms Mayath speaks English, and did not require an interpreter, however, it is not her first language.
72Whilst I find that Ms Mayath was generally a witness of credit, that does not mean that I must accept each and every aspect of her evidence where there is other objective evidence or admissions against interest.[44] Further, Ms Mayath’s belief that her symptoms relate to the first transport accident needs to be seen in the context of the whole of the evidence, and in particular the objective, contemporaneous medical records and other evidence.
[44] Hettiarachchi v Transport Accident Commission (supra) at paragraph [46]
Medical evidence
The Plaintiff’s medico-legal reports
Mr Ash Chehata, orthopaedic upper limb surgeon
73Mr Chehata examined Ms Mayath at the request of her former solicitors on 18 May 2021. His report[45] records Ms Mayath’s history of involvement in two transport accidents, and her report of ongoing neck pain, with widespread soreness that radiated from her neck up into the cervical occipital region, and headaches. Her history included that she struggles to raise her arms above shoulder height, and although able to dress herself and attend to her personal hygiene, she struggles to elevate her shoulders.
[45] JCB 50
74On examination, Mr Chehata noted:
“… Ms Mayath has widespread asymmetry and loss of range of movement at the level of the cervical spine, rotating to 30° due to the ongoing pain. There was no radiculopathy or myelopathic features.
Examination of the lumbar spine shows a restricted range of movement. She was able to flex to almost 80° with pain, especially in the lower lumbar spine with no radiculopathy or myelopathic feature.
…
With regard to both shoulders, she has features of capsulitis and functional and pain features, but is only able to forward flex and abduct to 90°/90°, with external rotation symmetrical to almost 40° and internal rotation to 60°… .”[46]
[46] JCB 53-54
75Mr Chehata diagnosed a whiplash style phenomena or a myofascial injury with the development of ongoing chronic pain in the neck, back, and both shoulders, with a poor prognosis.[47] In his opinion, the second transport accident “would appear to have exacerbated her neck symptoms and caused ongoing pain in both shoulders and aggravated her lower back. There is no suggestion that she has had previous issues of either her neck, back or either shoulder prior to these two motor vehicle accidents.”[48] Mr Chehata also noted that “the neck pain and radiating pain into the shoulders was the essential primary issue from the December 2013 accident”.[49]
[47] JCB 54, 58 and 62
[48] JCB 55
[49] JCB 51
76Ms Mayath’s solicitors requested a further opinion, including as to whether the requirement for the right shoulder surgery was attributable to the first transport accident. To his credit, Mr Chehata’s supplementary report dated 29 June 2021 stated:
“It is certainly impossible for me to answer this question. There is no suggestion that there was specific right shoulder pathology, as the only scan that occurred almost six months after the initial presentation was only of the cervical spine, then it was almost a year later, which then brings the time to almost 1.5 years later, for an ultrasound being performed on 12 May 2015. Therefore, it is difficult to correlate after such a long period of time to the primary accident on 5 December 2013.
Obviously, there is difficulty where often even neck pain is radiating to the shoulder, or shoulder pain can give some minor neck pain and this can be quite confusing for the clinician, but at the very least, you would expect if it was directly related to the transport accident, there would at least be some form of imaging. However, I would also accept if there is medical documentation from the general practitioner to suggest that Ms Mayath was complaining of right shoulder pain at the time or at least within the vicinity of 5 December 2013, that I would correlate the right shoulder surgery to be connected. At this point in time, I am yet to see any evidence of this so far.” [50]
(emphasis added)
[50] JCB 59
77Ms Mayath’s solicitors then directed Mr Chehata to Dr Oludare’s and Ms Boylan’s clinical records and other material, and requested a further report in these terms:
“We would be grateful if you could advise whether the consideration of this material alters the opinion you provided on 29 June 2021.”[51]
[51] Letter of instruction dated 7 July 2021: JCB 520
78Mr Chehata then prepared a short further supplementary report dated 13 July 2021 in which he expressed the following opinion:
“The medical notes documented by the general practitioner, which I do classify as highly important, as well as very relevant, have documented approximately eight weeks after the car accident, which I believe is close enough in vicinity to the motor vehicle accident to correlate symptoms and the motor vehicle accident, it is documented that she was suffering from bilateral shoulder pain. Then, a few months later, potential neck symptoms were noted as well with pain radiating to both shoulders and then again by Ms Tara Boylan in May 2014 noting bilateral shoulder pain.
From my perspective, this is certainly enough medical documentation to suggest and correlate that the motor vehicle accident that occurred has actually, in fact, injured the right shoulder. So far, she has been complaining of this and I would accept the narrative that the shoulder pain is related or at least closely correlated as a result of the [first transport] accident and therefore, would change my initial assumption.”[52]
[52] JCB 62
79Mr Chehata noted that Ms Mayath’s prognosis is poor, but that her injuries have stabilised and were unlikely to deteriorate. In his opinion:
“She would struggle to return back to work as a childcare worker due to her ongoing neck symptoms, as well as bilateral shoulder pain. I cannot foresee that she will return back to the workforce any time soon.”[53]
The Defendant’s medico-legal reports
[53] JCB 55
Mr Gary Speck, orthopaedic surgeon
80Mr Speck examined Ms Mayath on 27 April 2021 at the request of the TAC. His subsequent report dated 7 June 2021 recorded the histories of both transport accidents and the treatment Ms Mayath received by reference to copies of treating doctors’ reports, notes[54] and radiological investigations.
[54] Springvale Family Healthcare, and Emmanuel Medical Centre
81Ms Mayath reported to Mr Speck, midline neck pain which spreads out to the shoulders and is exacerbated by sleeping or lifting. The history included:
“She described her symptoms as being in the neck, shoulders and low back, continued after the first transport accident and were still present at the time of the second accident on 7th April 2015 when you [the TAC] indicated she sustained a shoulder injury as well.”[55] (emphasis added);
“She predominantly complains of neck and back pain with radiation out to the shoulder tips and although she describes shoulder pain the initial description was consistent with referred pain from her neck.”[56]
“Her current symptoms in the neck, back and shoulders are continuations of pain in sites as from the initial transport accident on 5th December 2013 …Pain in the shoulders is increased if she lifts heavy objects.”[57]
[55] JCB 67
[56] JCB 68
[57] JCB 69
82Mr Speck did not consider there was any pain-related psychiatric condition present.
83Mr Speck diagnosed soft tissue injuries to the neck and headache; however, in his opinion, those soft tissue injuries had resolved. He further opined:
“Her current presentation is a combination of shoulder symptoms, unrelated to the transport accidents surgically treated, and further soft tissue injury to neck, chest, and low back in the course of her second transport accident on 7/4/15 with development of a chronic pain syndrome.”[58]
[58] JCB 88
84There is no apparent path of reasoning to support his finding that the shoulder symptoms are “unrelated” to the transport accidents.
85Upon review of the clinical notes provided to him, Mr Speck also stated that:
“The first mention of specific right shoulder symptoms in medical notes is on the 17/2/17 in the notes of Dr Oludare. This is nearly two years after the transport accident on 7/4/15.”[59]
[59] JCB 87
86I reject this evidence. The notes provided to Mr Speck, and reproduced in part in his report,[60] record symptoms in the right shoulder from early 2014.
[60] JCB 82
87In a supplementary report dated 30 August 2021,[61] Mr Speck sets out his revised opinion that the second transport accident related to “the onset of specific right shoulder pain”,[62] on the basis that:
(a) bursitis was only identified after the second transport accident in 2015;[63]
(b) the general practitioner entry dated 27 February 2014 suggests a neck injury with pain radiating into the shoulders following the first transport accident;[64] and
(c) because any treatment was “directed to the neck as the source of the symptoms radiating to the shoulders”.[65]
[61] JCB 94
[62] JCB 102
[63] JCB 100
[64] JCB 101
[65] JCB 103
88Mr Speck also sought to explain the “apparent contradiction” in referring only to histories of “specific right shoulder symptoms” from 2017 where histories provided by Ms Mayath from 2014 plainly refer to shoulder symptoms. His explanation was that:
“… often neck and shoulder coexist as a symptom complex, more commonly with a neck problem with referred symptoms to the shoulders although both areas could have pathologies related to injury.”[66]
[66] JCB 95
89When coupled with Mr Chehata’s opinion that:
“Obviously, there is difficulty where often even neck pain is radiating to the shoulder, or shoulder pain can give some minor neck pain and this can be quite confusing for the clinician”[67]
the evidence before me certainly does not exclude the existence of undiagnosed pathology in the right shoulder after the first transport accident.
[67] JCB 59
90I accept Mr Speck’s opinion that:
(a) ongoing restricted movement of the shoulders may lead to secondary capsulitis or ‘frozen shoulder’, and that the prognosis for shoulder movement recovery is guarded;[68]
(b) the Chronic Pain Syndrome and symptoms related to Ms Mayath’s shoulders interfere with her capacity to undertake her normal duties;
(c) “the shoulder problems were the predominant cause of cessation of work”;
(d) “symptoms related to the shoulders interfere with her capacity to undertake childcare work”;
(e) the Chronic Pain Syndrome and symptoms related to the shoulders interfere with her capacity to undertake domestic activities.[69]
[68] JCB 89
[69] JCB 90
91Having regard to its significance in the disposition of this application, I pause here to note that, on the basis of Mr Speck’s opinions and the other evidence referred to below, I find that the injury to the right shoulder is predominantly responsible for Ms Mayath’s incapacity for work and domestic activities.
What injuries did the Plaintiff suffer in the first transport accident?
Right shoulder
92The TAC submitted that the lack of detail in various notes of attending doctors meant that I could not conclude that the plaintiff had given a detailed history of ongoing pain since the first transport accident to her treating practitioners. In recognising the importance of histories to medical practitioners in forming views as to diagnosis and prognosis of a plaintiff’s injuries, the Court of Appeal has cautioned against reliance on those histories as a verbatim record of what the plaintiff has said to the medical practitioner on examination.[70]
[70]Woolworths Limited v Warfe and Hettiarachchi v Transport Accident Commission (supra)
93I find that Ms Mayath gave a relatively consistent account to her doctors of ongoing pain which increased and resolved into a chronic pain condition, and of the progression of a previously undiagnosed shoulder injury resulting in surgery and very significant impairment of her work capacity and in her activities of daily living as set out below.
94I accept Ms Mayath’s reports of ongoing symptoms and pain in her right shoulder. I rely upon her evidence, which I accept, and the other objective evidence of complaints made to treating medical practitioners before the second transport accident.
95I am satisfied that Ms Mayath at all times has been motivated to work in order to provide for her family. She experienced sexual violence overseas, and in emigrating to Australia, learned English, retrained and was doing her best to support a family at the time of the first transport accident. I accept her evidence that despite having a difficult and traumatic past, she prided herself on being a resilient woman, and strived to do her best for herself, but mainly for her four sons. This is why she pushed to keep working as she wanted to be strong for her sons and to be able to provide for them.[71] Her desire to work through her pain is understandable and commendable.
[71] The plaintiff’s first affidavit, paragraph 38
96Mr Speck appears to have rejected Ms Mayath’s history of symptoms and difficulties in function of the right shoulder experienced by her after the first transport accident in expressing both his initial opinion that the right shoulder injury is unrelated to either transport accident; and his subsequent opinion that the second transport accident related to the onset of right shoulder pain.
97I prefer the analysis and opinion of Mr Chehata set out above to that of Mr Speck on the question of whether Ms Mayath suffered an injury to the right shoulder in the first transport accident.
98Dr Oludare did not refer at all to the second transport accident in his report of June 2015 in the context of Ms Mayath’s ongoing complaints of shoulder pain.[72] His later report dated 19 August 2020 states that Ms Mayath’s right shoulder injury “developed” following the second transport accident.[73] This apparently new opinion is not explained. I prefer the opinion of the specialist, Mr Chehata.
[72]JCB 126
[73] JCB 129 and 132
99The trial was conducted by way of cross-examination of the plaintiff, tender of relevant documents, including medical reports, and submissions, without testing any of the opinions expressed by the relevant doctors. In my view, for the purposes of an application of this type under s93 of the Act, the evidence before me as a whole establishes, on the balance of probabilities, that Ms Mayath suffered a discrete injury to the right shoulder in the first transport accident.
100Insofar as it might be said that Mr Chehata’s evidence in total amounts to no more than a possible causal relationship between the first transport accident and the right shoulder injury, I rely on the Full Court decision of Dahl v Grice,[74]where Gobbo J stated:
“At the trial there had been a considerable body of expert medical opinion. Of the five experts that gave evidence, two were prepared to find a possible causal relationship between the accident and the haemorrhage. Neither of these two doctors spoke in terms of probability rather than possibility.”
[74] [1981] VicRp 50; [1981] VR 513 at 515
101Further, his Honour cited with approval the decision of EMI (Australia) Ltd v BES,[75] where Asprey JA said, at 243:
“Where scientific knowledge properly adduced in evidence as expert opinion deposes to more than one event as a possible cause of a medical condition and where it appears from the evidence accepted by the tribunal of fact that of those possible causes of that condition one of them, on the balance of probabilities, is more likely than the others to be the cause of the medical condition in question, in this case the syncopal episode, then the tribunal may properly draw the inference of fact that such was the operating cause of that condition in the particular circumstances. Reliance for the purpose of drawing that inference may be placed by the tribunal on the evidence as a whole and is not confined to the medical evidence only (see St. George Club Ltd. v Hines), except where all the medical evidence agrees that the matters sought to be relied upon must be excluded from consideration as lacking justification for the drawing of the inference. That is not the case here.”[76]
[75] [1972] 2 NSWLR 238
[76] Dahl v Grice, supra, at 520-521
102I find that Ms Mayath did not sustain any significant aggravation or exacerbation injury to her right shoulder in the second transport accident. Despite being in hospital for three days, there was no record of complaint of any symptoms in her shoulder as a result of the second transport accident, and no investigations were conducted in relation to any such injury. Consistent with this, her initial report to her general practitioner on 11 April 2015 related to neck and low-back trauma from the accident four days earlier.
103I also find that the plaintiff’s long term right shoulder condition– impingement syndrome with labral pathology and disease in the acromioclavicular joint, capsulitis and development of a Chronic Pain Syndrome – and related impairment results from the first transport accident.
The neck
104As set out above, it is not in dispute that Ms Mayath suffered soft tissue injuries to her neck in the first transport accident. Mr Chehata and Mr Speck agree that the first transport accident in 2013 was associated with treatment of pathology in the neck and “referred” pain in the shoulders.
105Mr Chehata diagnosed whiplash style phenomena or a myofascial injury and the development of ongoing chronic pain in the neck, back and both shoulders, with a poor prognosis.
106On the other hand, Mr Speck records a good range of movement in the neck, and opines that any soft tissue injury in the first transport accident has since resolved. He diagnoses development of a Chronic Pain Syndrome following further soft tissue injury to neck and low back in the second transport accident.
107When Mr Speck’s opinion is considered in the context of Ms Mayath’s pre-existing neck condition resulting in prescription of Panadeine Forte for a painful and stiff left-sided neck, together with treatment and investigation at Frankston Hospital for neck pain after the second transport accident, I have some reservations about whether or not her neck injury and its consequences relate predominantly to the 2013 transport accident. Having regard to my findings in relation to the right shoulder injury below however, it is unnecessary for me to resolve this question.
The low back
108The injury to low back was not pressed by Ms Mayath’s counsel in final submissions. This is unsurprising because in her further affidavit dated 8 December 2022 (“the second affidavit), the plaintiff herself stated that she continues to experience low-back pain from the second transport accident, which is consistent with the medical evidence. I find that Ms Mayath has not discharged her burden of establishing that she sustained an injury to the low back in the first transport accident which satisfies the narrative test.
Consequences
109The difficulty that the plaintiff faces in relation to this application is that in many respects she has not attempted to delineate the impairment consequences of the injuries to her neck and right shoulder separately.
110For example Ms Mayath has been prescribed various medications to treat her pain symptoms over time. As at December 2022, Ms Mayath’s medication regime for her “neck/shoulder” pain, which “help my right hip and lower back pain as well”[77] includes[78] two Mobic tablets every morning; two Lyrica tablets every night; Panadol Osteo three times a day; and Voltaren Gel as required.
[77] The plaintiff’s second affidavit, paragraph 15
[78] Ibid
111On any view, Ms Mayath’s pain requires very significant opioid-based and over-the-counter medication in order to control her symptoms. On the evidence before me, however, I am unable to make a finding as to which particular injury, compensable or not, that results in the need to take this daily pain medication. Accordingly, I disregard it.
112To the extent I am unable to do so, I set out my findings below as to the consequences which relate discretely to the right shoulder.
Treatment
113In the five months after the first transport accident, clinical notes tendered show that Ms Mayath consulted general practitioners complaining of shoulder pain on multiple occasions, was prescribed Brufen and referred for physiotherapy to treat this pain. Her uncontested evidence was that she was also prescribed Lyrica and Panadeine Forte for her “neck/shoulder” pain in 2014.[79]
[79] The plaintiff’s second affidavit, paragraph 6
114Ms Mayath deposes to experiencing continued shoulder pain throughout 2014 and 2015.[80] Whilst there is no record of her attending on her treating general practitioner for her shoulder pain in 2015, Ms Mayath explained that she did not have constant treatment in late 2014 to early 2015 as she was pregnant,[81] and at other times did not have access to a car, or was otherwise occupied with her responsibilities as a single mother. She has had further physiotherapy treatment from June 2015, including intensive treatment more recently.
[80] The plaintiff’s first affidavit, paragraphs 10 and 13, JCB 12
[81] The plaintiff’s first affidavit, JCB 12
115In February 2020, following an injection of local anaesthetic and corticosteroid into her right shoulder subacromial space (which provided only temporary relief of her impingement syndrome), Mr Miller operated on Ms Mayath’s right shoulder, performing a subacromial decompression and clavicle ostectomy. She developed frozen shoulder (capsulitis) post-operatively.
Sleep
116Ms Mayath’s sleep has been interrupted since the first transport accident. This is particularly linked to her right shoulder. Currently, if she rolls onto her right side, she will wake up, and because of this, it is difficult for her to find a comfortable sleeping position. If her right shoulder is particularly symptomatic and throbbing, she struggles to get to sleep at all.[82] She often feels very tired due to lack of restful sleep.[83] She needs to take medication to help her sleep.[84] The fact that Ms Mayath cannot enjoy an uninterrupted night’s sleep must be considered a significant consequence.[85]
[82] The plaintiff’s first affidavit, paragraph 33, JCB 15
[83] The plaintiff’s second affidavit, paragraph 25, JCB 533
[84] Ibid; T75, L22
[85] Haden Engineering (supra)
Activities of daily living
117Ms Mayath is right-hand dominant, heavily reliant on the use of her right hand and arm. Due to her right shoulder pain, she has lost a lot of strength and power in her right arm. As a further consequence, she now has to rely a lot on her left arm and hand, but this feels awkward and unnatural to her.[86]
[86] The plaintiff’s first affidavit, paragraph 24, JCB 14
118She has great difficulty in lifting heavy items which has affected her ability to work and perform other tasks of daily living:
“Because of my right shoulder injury, and separately my neck injury, I am now unable to work in childcare because it required me to lift the children in and out of the car seat. This is why I was unable to cope with working with children and had to stop …
I have difficulty lifting heavy items because of my right shoulder pain. Anything heavy also puts strain on my neck. I find it difficult to perform movements that require me to lift my right shoulder overhead or tasks that are repetitive. My older boys help me with the heavy lifting and we go grocery shopping together.”[87]
[87] The plaintiff’s first affidavit, paragraphs 25-26
119Ms Mayath impressed me as a person proud of her appearance and of her African heritage. One of her biggest passions was styling her own hair, which she loved. She has a background in hairdressing, and prior to her right shoulder injury, enjoyed doing other people’s hair in African style using various techniques and designs. She has been forced to stop doing this since the first transport accident because of the pain and restrictions in her right shoulder. It is too painful for her to use her arm and shoulder to perform the movements required in styling African hair.[88] I regard this as a significant consequence, and indicative of the pain and loss of function she experiences as a consequence of the accident.
[88] The plaintiff’s first affidavit, paragraph 34
120Ms Mayath also identified other consequences she confronts on a daily basis due to her right shoulder injury:
· it is hard for her to drive;[89]
· she has trouble cooking, especially cutting vegetables, chopping food and lifting pots because of the right shoulder pain. She does not cook that much anymore, and now has to buy a lot of takeaway food to feed herself and her sons. This makes her ashamed as she always prided herself with cooking healthy meals for her family;[90]
· she struggles with washing her hair, and now needs to rely on her non-dominant arm mostly. She does not wash her hair as often as she used to;[91]
· she has trouble with dressing herself, particularly reaching behind her back to do up zips and doing/undoing her bra.[92]
[89] The plaintiff’s first affidavit, paragraph 35
[90] The plaintiff’s first affidavit, paragraph 30
[91] The plaintiff’s first affidavit, paragraph 29, JCB 14
[92] The plaintiff’s first affidavit, paragraph 32, JCB 15
121Because she has difficulty in looking after her appearance in the way she could before the first transport accident, she no longer feels very feminine or attractive to men and has lost interest in meeting a companion. She has become quite withdrawn and socially isolated.[93]
[93] The plaintiff’s first affidavit, paragraph 36, JCB 16
Employment capacity
122Ms Mayath was unable to work for two months after the first transport accident. Upon return to work, she struggled to complete her normal duties due to pain in her neck and back. Her work was physically demanding, involving caring for and lifting children, driving and manoeuvring children in and out of car seats.
123Ms Mayath’s evidence to the Court, both on affidavit and in cross-examination, was that she had ongoing pain in both shoulders, neck and back from after the first transport accident in 2013 up until the second transport accident in 2015. Whilst her evidence lacked specificity in terms of the extent and intensity of the pain in these discrete locations, upon her return to work in March 2015, she “still had pain in her right shoulder and neck mainly”. She described her right shoulder and neck pain as “constant”.
124Ms Mayath continued to work until January 2018, nearly three years after the second transport accident. I accept her evidence that due to her financial circumstances, she had no choice but to push through the pain, but ceased work in 2018 as a consequence of the difficulties she faced:
“My pain was generally at its worst at the end of a work day, and I would regularly be brought to tears. Eventually my pain got too much for me and I had to stop work in January 2018. [94]
Because of my right shoulder injury, and separately my neck injury, I am now unable to work in childcare because it required me to lift the children in and out of the car seat. This is why I was unable to cope with working with children and had to stop.”[95]
[94] The plaintiff’s second affidavit, paragraph 12
[95] The plaintiff’s first affidavit, paragraph 25
125The evidence of increasing difficulties until such time that the plaintiff ceased work in 2018 is consistent with the development of pain and loss of function in her right shoulder over time. Ms Mayath was doing her best as a single mother to bring up four sons, and had little alternative but to continue working.
126The medico-legal evidence referred to above establishes that Ms Mayath’s current incapacity for employment results from the injury to her right shoulder.
127Ms Mayath’s treating general practitioner, Dr Oludare, and treating orthopaedic surgeon, Mr Russell Miller, also provided opinions on her work capacity but neither treating doctor relate this level of incapacity to any particular injury.
128Dr Chris Baker, specialist in occupational medicine and public health medicine, examined Ms Mayath on 10 May 2016 on behalf of the TAC. His report dated 12 May 2016 records that Ms Mayath had a good range of movement in her neck and shoulders, and his opinion Ms Mayath was fit to undertake her normal duties or other suitable employment.[96] The more recent reports which take into account the plaintiff’s right shoulder surgery in 2020 are more helpful.
[96] JCB 35
129Upon consideration of the whole of the evidence, I find that Ms Mayath does not have capacity to undertake her pre-injury work and duties; and otherwise has a very significantly reduced capacity for employment, having regard to her age, educational status and experience as a consequence of her right shoulder injury.
130I find that Ms Mayath’s incapacity is a very considerable consequence to her as a single mother with the responsibility to provide for her children.
Does the Plaintiff have a serious injury which results from the first transport accident?
131I find that Ms Mayath has a serious long-term impairment of her right shoulder which results from the first transport accident. The consequences identified above satisfy the criterion of being “at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”, or “serious” when assessed objectively in comparison with other cases in the range of possible impairments or losses,[97] including those that do not come before the Court.
[97] Humphries and Anor v Poljak (supra) at 140
132I take into account her relatively young age as at the date of the first transport accident, and at the date of the hearing. She must bear these consequences for the rest of her life.[98]
[98]See Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Conclusion
133I grant Ms Mayath’s application for leave to commence proceedings for common law damages pursuant to the Act in respect of her right shoulder injury sustained in the first transport accident on 5 December 2013.
134I will hear the parties as to the form of orders and costs.
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Stevens v DP World Melbourne Ltd [2022] VSCA 285 at paragraph [44]; Grace v Elmasri [2009] VSCA 111 at paragraph [132]
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