McEvoy v Transport Accident Commission
[2013] VCC 630
•11 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-00921
| MEREDITH McEVOY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18, 19 and 20 March 2013 | |
DATE OF JUDGMENT: | 11 June 2013 | |
CASE MAY BE CITED AS: | McEvoy v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 630 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the cervical spine and right shoulder
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards v Wylie (2000) 1 VR 79; Humphries v Poljak [1992] 2 VR 129; Lu v Mediterranean Shoes (2000) 1 VR 511; Barwon Spinners Pty Ltd & Ors v Podolak (2007) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260; Kundevski v Holden & Victorian WorkCover Authority [2013] VCC 329
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Collis QC and Ms A Malpas | Victorian Compensation Lawyers |
| For the Defendant | Mr M Titshall QC and Mr S E Gladman | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident (“the accident”) which occurred on 19 July 2005 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is under s93(17)(a) – “a serious long term impairment or loss of a body function”. The body function pursuant to subparagraph (a) relied upon by the plaintiff is the cervical spine and the right shoulder.
4 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
5 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie.[1]
[1](2000) 1 VR 79
6 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury when judged by comparison with other cases in the range of possible impairments be fairly described as at least “very considerable” and more that “significant” or “marked”? – see Humphries v Poljak.[2]
[2][1992] 2 VR 129 at 140-1
7 The plaintiff relied on two affidavits. She was not cross-examined. The plaintiff’s husband, Michael McEvoy, swore an affidavit on 17 January 2013. Angela Thomson, a co worker of the plaintiff, swore an affidavit on 29 January 2013. Both Mr McEvoy and Ms Thomson were required to attend for cross-examination. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
8 The plaintiff was not required for cross-examination. She relied on two affidavits, the second particularly detailed, in which she deposed her pain and the many consequences thereof related to a number of transport accident injuries including the two claimed impairments to the right shoulder and the cervical spine.
9 In her first affidavit, sworn 22 October 2012, the plaintiff deposed that she was then aged forty seven and had three teenage children. She is naturally right hand dominant.
10 The plaintiff was in much better health before the accident and was able to participate in a full range of normal activities of daily living.
11 The plaintiff described how, on the said date, her vehicle, whilst stationary at an intersection in Grovedale, was hit from behind into the car in front on two occasions (“the accident”).
12 The plaintiff deposed that in the accident, she sustained the following injuries (“each of the transport injuries”):
·injury to the spine and, in particular, the cervical, thoracic and lumbar spine;
·injury to the right upper extremity, in particular the right shoulder;
·injury to the left upper extremity, in particular the left shoulder;
·injury to the right lower extremity, in particular the foot and knee; and
·mental and/or behavioural disturbance or disorder including, but not limited to, Post-Traumatic Stress Disorder (“PTSD”), Anxiety and Depression.
13 When she swore her first affidavit, the plaintiff was seeing a general practitioner, chiropractor and osteopath for treatment of each of her injuries, and continued to take medication to alleviate at least some of her pain. Such medication included, but was not limited to, Panadol Osteo, which afforded minimal transient benefit in relieving her constant, though varied pain.
14 The plaintiff deposed she experienced constant, though varied pain as a result of her transport accident injuries. She also experienced varying feelings of stress and anxiety and often became upset when she thought about her incapacity due to each of her transport accident injuries.
15 Prior to the said date, the plaintiff was independent, as regards her intrinsic and functional physical activities, travel, sleep and sexual function, as well as participation in social and recreational activities. The very significant diminishment of her physical capabilities and endurance thus struck at the core of her identity and sense of self worth. She felt a liability to those around her, and had lost the social contact she used to have as a woman with a normal family and social life. That situation left her feeling useless, frustrated and much older than she would otherwise feel.
16 Immediately prior to the accident, the plaintiff was in relatively good mental health and did not suffer from anxiety, depression and PTSD. Thereafter, she had developed long-term mental or long-term behavioural disturbance or disorder, including anxiety, depression and PTSD that affected many aspects of her daily life and interaction with others.
17 The plaintiff described anxiety whilst driving and as a passenger in a vehicle, and she often experienced frustration, anxiety and depression as a consequence of her constant, though varied pain and incapacity. She experienced loss of concentration, a change in her temperament to that of lapsing into being short with those around her, feeling more restricted due to her changed circumstances, and general dependence on others for performance of her usual range of pre-injury activities of daily living. She continued to feel anxious and irritated as a consequence of each of her injuries and altered life circumstances. She had overcome problems in her life before, but the ongoing effects of each of her transport accident injuries had not resolved and she was concerned about her future.
18 The plaintiff swore a very detailed second affidavit on 22 December 2012, noting that since the first affidavit, she had been shown some documents namely, extracts from the clinical files of Dr Williams, Ms Molloy, Mr Wood, Dr Smith, and some FOI documents from the defendant which assisted her memory.
19 The plaintiff described her education to Year 12 and then obtaining an interior decoration certificate from RMIT. Prior to the accident, the plaintiff was self-employed from about 2003 to 2006 as an interior decorator. Before that, she worked as a receptionist.
20 In or around 2006, the plaintiff commenced employment as creative sales director for The Property People (Vic) Pty Ltd (“the business”) preparing houses for sale. That job required her, amongst other things, to furnish and decorate houses in preparation for sale. She enjoyed the job and worked very hard to establish and advance the business and her career, as well as develop connections within the industry. However, she found that job increasingly difficulty to cope with as a result of the onset of each of her transport accident injuries.
21 The plaintiff deposed that in the past she had experienced transient episodes of neck and back discomfort, as well as headaches, for which she periodically presented to a chiropractor, Dr Junge, for minor maintenance. As at the said date, that situation did not cause any significant interference with her ability to work or do normal activities. In the past, she had also experienced transient episodes of low mood, but at the time of the accident, that did not cause her any significant interference with her activities.
22 In about December 2010, the plaintiff was involved in a transport accident (“the second accident”) in relation to which she did not make a claim. For a short period thereafter, she experienced increased pain which eventually settled and returned to the previous level she was experiencing as a result of the accident.
23 The plaintiff’s main problem at the present time is the constant, though varied pain and incapacity she experiences as a result of each of the injuries to her cervical spine and right upper extremity. The cervical spine pain often radiates to her head, and she also continues to suffer from varied pain in the left upper extremity, lumbar spine and right lower extremity. She also suffers from constant, though varied mental and/or behavioural disturbance or disorder.
24 The plaintiff consults her general practitioner, Dr Williams, for treatment of each of her transport injuries, seeing him first after the accident on 19 July 2005.
25 On about 22 July 2005, the plaintiff commenced osteopathic treatment with Ms Molloy for treatment of each of her transport accident injuries, and continues to see her. The plaintiff finds the treatment, initially funded by the defendant and now paid for by her, only provides temporary relief.
26 From about mid 2006 to mid 2008, the plaintiff had physiotherapy at Newtown Physiotherapy for treatment of each of her transport accident injuries. This treatment, funded by the defendant, only provided temporary relief.
27 On about 13 December 2008, the plaintiff started chiropractic treatment with Dr Smith for treatment of each of her transport accident injuries. She continues to consult him and finds that the treatment only provides temporary relief. It was initially funded by the defendant but is currently self funded.
28 On 12 October 2009, the plaintiff had x-rays of the three levels of her spine organised by Dr Smith. Later that month, the defendant funded an MRI scan of the plaintiff’s cervical spine and right shoulder.
29 In about December 2009, the plaintiff first saw Mr Wood, an orthopaedic surgeon, on referral from Dr Williams, for treatment of each of her transport accident injuries. Mr Wood gave the plaintiff a cortisone injection in her right shoulder in December 2009, which provided only temporary relief. The plaintiff last saw Mr Wood in January 2010. He discussed shoulder surgery with her.
30 However, in May 2010, the defendant denied funding for this surgery. Given her current circumstances, as well as the advice of medical practitioners, the plaintiff deposed she understood there were no guarantees that surgery would free her from her constant, though varied pain and she had doubts about being operated on.
31 The plaintiff continues to consult her general practitioner, chiropractor and osteopath for treatment of each of her transport accident injuries. She continues to take medication to alleviate at least some of her pain including, but not limited to, Panadol Osteo, Panadeine and Nurofen. That medication affords minimal transient benefit in relieving her constant, though varied pain. Additionally, she also gets massages occasionally in an attempt to relieve her constant, though varied pain.
32 The plaintiff also occasionally takes stomach medication due to the effect of painkillers on her stomach. She has tried to avoid stronger painkilling medication as it gives her stomach symptoms such as, but not limited to, cramping and constipation. That medication also causes her to experience nausea and affects her concentration. She continues to be reliant upon over-the-counter medication, which she frequently purchases.
33 Additionally, the plaintiff is wary about the amounts of pain relief medication she ingests and attempts to limit her intake so as not to become overly reliant. Since the accident, she has also undertaken Pilates to aid in the treatment of each of her transport accident injuries. She has found that treatment only provides temporary relief from her constant, though varied pain.
34 As a result of her transport accident injuries, the plaintiff experiences constant, though varied pain in her right upper extremity, in particular her right shoulder, as well as her neck. As a result of each of her transport accident injuries, the plaintiff experiences varied feelings of depression and anxiety, and occasionally gets teary when she thinks about her incapacity due to each of her transport accident injuries. Her self motivation and confidence has been significantly lowered.
35 It has given the plaintiff a great deal of frustration as a result of the incapacity caused by each of her transport accident injuries, whereas she was previously healthy and active and able to actively contribute to the house and enjoy an active social life. Her family relationships, as well as with her close friends, have suffered enormously as a result of each of her transport accident injuries.
36 The plaintiff deposed that, as a result of the pain from each of her transport accidents, there have been the following consequences:
· A reduction in attendances at music concerts with pain distracting her from enjoying those functions.
· She is no longer able to participate in dancing, involving repeated twisting and turning, with increased pain in the right shoulder and cervical spine.
· Prolonged standing causes increased pain.
· She is careful to avoid physical contact in crowded and public places and is sensitive about being bumped or jostled.
· Prior to the onset of each of the transport accidents, the plaintiff and her husband went water skiing with friends at Lake Eppalock or Deniliquin. She used to enjoy body boarding at the beach. Since sustaining each of her transport accident injuries, she has been unable to undertake those activities due to the constant impact they place on her neck and right shoulder.
· She cannot swim without feeling exacerbated pain in her neck and right shoulder and often has to restrict herself to floating or paddling.
37 It makes the plaintiff very upset that she cannot do those activities due to the pain from each of her transport accident injuries. On medical advice, she has tried to be as active as possible within significantly limited physical restrictions arising from each of her transport accident injuries, but her tolerance can vary from time to time.
38 Since the onset of each of her transport accident injuries, the plaintiff has had to reduce socialising or entertaining at home for dinner parties, as the motions required cause her increased pain. She tends to avoid pain suffered due to cooking, but not limited to chopping vegetables, stirring and lifting pots and pans.
39 The plaintiff sees her friends less frequently and, when she does, she no longer enjoys being around them, having previously been social and enjoying going out of the house and spending time with family and friends.
40 As a result of each of her transport accident injuries, the plaintiff tends to avoid baking as the motions involved such as, but not limited to, kneading, mixing, stirring and whisking cause her to suffer increased pain.
41 Each of the plaintiff’s injuries, in particular her neck and shoulder, significantly affect her ability to perform intrinsic physical activity such as sitting or standing for prolonged periods, reclining for too long in one position and walking for prolonged distances or in a repeated fashion, reaching and bending, as well as repeated or prolonged twisting and leaning. She feels her condition has become more painful with time.
42 The plaintiff’s cervical spine and right shoulder, in particular, restricts her ability to perform upper body functions, including those requiring repeated forceful or percussive movements. Sometimes she has to push herself to do more activities in and around the house, but even when fortified by medication, she tends to be left in much increased pain afterwards, paying for increased activity.
43 The plaintiff’s transport accident injuries have had a very significant effect on her independence and mobility. She tends to experience increased pain when driving and tends to avoid driving longer distances.
44 The plaintiff has difficulties with concentration, as she is often distracted by her pain, with difficulties performing head checks and avoiding looking out the rear window when reversing, and she is less ready to deal with emergency situations. The plaintiff’s husband tends to drive more frequently.
45 The plaintiff is worried her reduced driving capacity will affect and limit her future job prospects.
46 Since the accident, the plaintiff is increasingly anxious and irritable as a driver or passenger and less confident as a driver, and tends to tap the brake pedal to alert vehicles travelling behind her. There is also increased anxiety when driving in wet or heavy traffic.
47 The plaintiff described experiencing significant problems with self care and personal hygiene as her ability to bathe, groom and dress has been limited by pain in her right shoulder and neck. She described problems zipping up her dress. She described increased pain in her neck and right shoulder when brushing her hair, and exacerbated cervical and right shoulder pain when she had to put on a jacket, cardigan or jumper. She also experiences an increase in her cervical and right shoulder pain when required to put on her shoes and socks, and also tends to feel increased pain in her neck when she coughs or sneezes suddenly.
48 Due to the constant, though varied pain as a result of each of her transport accident injuries, the plaintiff’s ability to enjoy a restful night’s sleep has been affected. She has difficulty finding a comfortable position and she often tosses and turns. She often wakes as a result of rolling onto her right shoulder in her sleep. She uses a heat pack for pain relief before trying to get back to sleep and that leaves her often feeling lethargic during the day.
49 The plaintiff’s transport accident injuries have also adversely affected and interfered with her normal sexual function, causing reduced libido, and she often experiences increased pain from each of her transport accident injuries, thus having less frequent sexual activity which has affected her relationship with her husband.
50 As a result of her transport accident injuries, the plaintiff is significantly impaired in performing activities of daily living, being primarily responsible for household gardening, heavy grocery shopping and laundry before the accident. Since then, she has received increased help from her husband and children, and has also had to pay a cleaner as she cannot do housework for a prolonged period of time without experiencing more pain. She tends to break up what she does and it takes her a long time to do simple tasks.
51 The plaintiff now tries to avoid activities such as, but not limited to, gardening, vacuuming, sweeping, heavy grocery shopping and other heavy household tasks. She usually leaves this to her husband and children so she does not aggravate each of her transport accident injuries, and also tends to use her non-dominant left hand when she does lighter household duties. She feels a burden and embarrassed by her reliance on others.
52 It is disappointing that, as a result of her physical limitations from each of her transport accident injuries, the plaintiff feels she will not be able to enjoy interaction with her grandchildren when her children have a family.
53 Prior to the accident, the plaintiff prided herself on her physical fitness and health, engaging in a great deal of physical activity, which is now restricted. She has endured a great deal of psychological suffering as a result of her weight gain and general deterioration in fitness, putting on six to eight kilograms due to inactivity, affecting her self esteem and confidence.
54 Since the accident, the plaintiff has travelled overseas to Singapore in about 2005, Bali in about 2011, to America with her sons in about July 2012 and Bali with her husband for their wedding anniversary in March 2012.
55 During those trips, the plaintiff was often reliant upon over-the-counter medication and limited in the activities she could perform due to each of her transport accident injuries. Whilst in America, she could not go on various rides at the theme park, which upset her a lot. She had to avoid bike riding and swimming with her husband on the anniversary holiday as a result of each of her transport accident injuries, and travelling on the bumpy roads in Bali caused increased right shoulder and neck pain.
56 As a result of each of her transport accident injuries, the plaintiff experiences significant difficulties at work, having to alter the way she does her work duties, using a wheelie bag to carry samples when visiting clients and she often has to ask them to help her put the bag in the car.
57 The plaintiff’s current work role involves tasks such as, but not limited to, consulting with clients, drawing up plans and measuring kitchens. The pain from each of her transport accident injuries also causes her problems with remaining attentive and reliable, and she tends to have difficulty with prolonged periods of concentration, requiring short breaks in the course of the day, taking tablets to help her focus prior to consulting clients.
58 The plaintiff finds she often has to push herself through pain because her career and being able to provide for her family is very important. She also has problems with prolonged driving and often asks colleagues to drive when they have to go to Melbourne. She also experiences difficulties with communication as a result of her transport accident injuries and is often distracted by pain. She has problems concentrating when reading, writing or having a conversation, which frustrates her and her children.
59 The pain from each of her transport accident injuries often causes the plaintiff to experience mood swings and become more snappy and irritable when dealing with those around her.
60 Since the accident, the plaintiff is often worried about her ability to raise her children with her husband and she feels left out of their lives, not being able to play as much of a role due to the pain from each of her transport accident injuries and limited capacity.
61 In about June 2011, the plaintiff sold the business as she could no longer cope with the demands of self employment as a result of each of her transport accident injuries. Prior thereto, it gave her a sense of pride that she was able to be self employed and run a small business, and she was very upset she was no longer able to do so.
62 From about February 2012 to July 2012, the plaintiff was employed on a full-time basis as a territory manager for Swisse. She resigned from that position as she was often required her to drive for prolonged periods which aggravated each of her transport accident injuries.
63 The plaintiff is presently employed as a kitchen designer for Kitchen Design Systems on a contract basis and has been so employed since about August 2012. That position involves tasks such as, but not limited to, carrying bags of samples, measuring kitchens and drawing up plans. However, that position requires significantly less driving. Nonetheless, she often finds she is limited in her work and finds herself generally doing less at home to save herself for the rigours of work.
64 As a result of each of her transport accident injuries, the plaintiff has had to cease self employment as she felt she was not able to cope with the rigours thereof. As a result of the ongoing pain from each of her transport accident injuries and the associated difficulties with concentration, the plaintiff is very concerned about future work prospects and her ability to cope with full-time, unrestricted employment. She also experiences difficulties with prolonged reading or writing or computer usage as a result of each of the transport injuries to her neck and right shoulder.
The Plaintiff’s lay evidence
65 The plaintiff’s husband, Michael McEvoy, swore an affidavit on 17 January 2013. He is presently the proprietor of a rubbish removal business.
66 Mr McEvoy deposed that prior to the accident, the plaintiff was an active and capable person with no neck or right shoulder problems, save for chiropractic maintenance for her neck and back in the past that was relatively minor when compared to her current situation since the onset of each of her transport accident injuries.
67 Mr McEvoy mentioned a temporary minor aggravation in the second accident compared to “the” accident.
68 Mr McEvoy saw the plaintiff on the day of the accident, when she was very upset after suffering so much pain. She then complained of general pain but in particular, pain in the neck, right shoulder and back.
69 Since the accident, he has noticed the plaintiff is often in a lot of pain and her mobility has been reduced as a result of each of her transport accident injuries. Prior thereto, she had no problems with lifting or moving things in a repetitive manner or when required to sit or stand for extended periods.
70 Since the onset of each of her transport accident injuries, Mr McEvoy has observed that the plaintiff has had great difficulty sleeping due to the pain she experiences from each of her injuries, especially her neck and right shoulder. She often fidgets in bed to get more comfortable and this occasionally disrupts his sleep. The plaintiff tries to go to bed earlier to catch up on sleep and he has noticed she often uses wheat or heat bags to relieve pain when in bed and she does not appear well rested during the day.
71 Since suffering each of her transport accident injuries, Mr McEvoy has seen the plaintiff in constant though varied pain. He has seen her experience pain in her neck and right shoulder, particularly when she attempts to perform home duties. Having previously been able to perform all home duties, the plaintiff is now only able to contribute to some of the lighter duties and relies on he and the children to help her with heavier tasks she does, such as gardening, vacuuming, cleaning the bath, scrubbing the tiles and heavy grocery shopping. There is now much more pressure on him to perform household duties and take the younger sons to school.
72 Prior to the accident, Mr McEvoy had never seen the plaintiff have such pain. Since the accident, she has tried to maintain a level of activity but is often unable to do so because of her pain.
73 Since the onset of her transport accident injuries, Mr McEvoy has observed the plaintiff drives less frequently and tries to limit her driving to shorter distances as prolonged driving causes her increased discomfort and pain and she is also nervous when driving or when as a passenger, and lacks confidence.
74 As a result of the pain from each of her transport accident injuries, the plaintiff became increasingly less involved in the business which they subsequently sold as she was having difficulty coping with the physical tasks involved in relation to furnishing houses for sale, even though the business was financially feasible and profitable. Further, he could recall the plaintiff often becoming upset by the effect her transport injuries continued to have on her capacity to perform her normal work duties and he believed that frustrated and saddened her.
75 Since the onset of her transport accident injuries, the plaintiff was less interested in socialising and attending events such as concerts, musicals or social functions and dances. She now tends to avoid such activities due to pain. She is often withdrawn in social settings, which he believes is a result of each of her transport accident injuries. Moreover, when they go on longer trips or holidays together, the plaintiff is often restricted in the activities she can undertake and is reliant upon pain relief medication.
76 Since the accident, Mr McEvoy has observed the plaintiff tends to avoid water sports due to pain from her transport accident injuries. They used to enjoy water skiing and swimming and it is now upsetting they are not able to participate in such activities and spend quality time together. Further, since the accident, they tend to avoid going ten-pin bowling as a family due to pain from her transport accident injuries and in particular, her neck and right shoulder. It is particularly upsetting when the children become upset as to why the plaintiff is not as involved with them as they would like her to be.
77 Mr McEvoy has observed the plaintiff struggling with simple everyday activities like brushing her hair, putting on boots or zipping up dresses as a result of each of her transport accident injuries, in particular her neck and right shoulder.
78 Mr McEvoy has noted the plaintiff is often anxious, stressed and depressed about her pain, restricted mobility and tolerance for activity and she is now easily upset, and that is upsetting to him. It seems like her condition has deteriorated and she often worries about the future and the future of the children and her job prospects. She tends to become distracted by pain and has difficulty concentrating and that affects their relationship.
79 Since the accident, Mr McEvoy has seen the plaintiff regularly take pain relief and use heat packs to relieve some of the pain from each of her transport accident injuries. She has previously told him she did not like being reliant upon that medication and he believes she does everything she can to rehabilitate herself. However, any relief experienced appears to be only temporary, which causes the plaintiff to become increasingly emotional and depressed as she is no longer independent as she used to be and unable to contribute to the household, due to increased pain she experiences.
80 The accident injuries have also had a negative impact on their sexual relations with a big difference in their relationship since the onset of each of the plaintiff’s injuries. Mr McEvoy thought the pain the plaintiff suffers from her transport accident injuries, especially in her neck and right shoulder, has interfered with the frequency of their normal marital relations and they feel less intimate towards each other.
81 Mr McEvoy confirmed the business started about six months after the accident. The plaintiff was working on call for Dulux part-time as a colour consultant at the time of the accident. She could work one job a week or three jobs, with an average consult of about an hour or two. He thought the plaintiff had been doing that job for about three years.
82 Mr McEvoy and the plaintiff set up the business preparing properties for sale when they moved to Geelong.
83 After furniture was put into the houses, the plaintiff directed where she wanted furniture placed or pictures hanged. She may also have lifted cushions or rugs to put them on the beds, but Mr McEvoy always had someone to help him with the furniture, so the plaintiff never actually lifted any furniture.[3]
[3]Transcript “T”) 15
84 In cross-examination, Mr McEvoy confirmed the plaintiff just gave directions and did “finger pointing” and never did any heavy work. He agreed that nothing about her part in the running of the business affected the plaintiff’s injuries.[4]
[4]T15
85 Mr McEvoy described his work as a real estate agent for seventeen years, working between 2006 and 2009 for Hocking Stuart, before he and the plaintiff started the business. He remained at Hocking Stuart for three years while the business continued. He then worked for Buxton Real Estate for about a year before they sold the business and he then started the rubbish removal business at the end of 2009. Mr McEvoy got out of real estate because he had “just enough of it”.
86 There were about ten real estate agents in Geelong for whom the business prepared houses for sale. He and the plaintiff started the business from scratch, initially working about five hours a week and, at the end, possibly two full days a week. The plaintiff worked alongside him most of the time. She worked less hours and it was very light work for her.
87 The business extended to properties beyond Geelong, as far as Yarraville, the Surf Coast and the Bellarine Peninsula. Mr McEvoy agreed that he and the plaintiff built the business up into quite a successful venture.[5]
[5]T18
88 Mr McEvoy confirmed the contents of the advertisement for the sale of the business, namely, that the business had been established for five years, had excellent returns and good stock, was easy to operate, had low overheads and was ideal for a husband and wife.[6]
[6]T18
89 Mr McEvoy confirmed the contents of the vendor’s statement which set out that the business commenced on 31 January 2006, with normal trading hours of 9.00am until 5.00pm. It also noted that members of the vendor’s family and other persons worked in the business and were paid wages.
90 There was extensive cross-examination in relation to the business income and the amount of depreciation claimed. Mr McEvoy confirmed that it was a successful business which was ultimately sold for $215,000 in August 2011. The plaintiff was the company secretary and a director. There was $43,000 in stock when the business was sold.
91 The main reason the business was sold was that the plaintiff was just getting worn out. The business was getting busier, as the figures showed, and even the mundane part that the plaintiff was doing, which was not lifting, was draining her and she was just worn out. The reality was she physically could not do a full day’s work.
92 A job might be started typically at 9.00am and the plaintiff would not turn up until an hour or two later. Mr McEvoy took in the furniture in and put it around and then the plaintiff arrived.
93 The plaintiff then finished work by 2.00pm or 2.30pm. By that time, she was worn out and she was not doing anything. She was basically just directing where things had to go and telling him what to do.
94 After the sale, the plaintiff had a break for about six months, but she was helping out the purchasers in a transition period for about two to three months, introducing them to agents and doing a sort of handover.[7]
[7]T25
95 Mr McEvoy confirmed the plaintiff’s subsequent employment and described the job with The Good Guys, designing kitchens.[8]
[8]T26
96 Mr McEvoy explained that the plaintiff left the job at Swisse because she could not do the driving,[9] which encompassed the area from Geelong to Hamilton and right through to the Western District and the Bellarine Peninsula and Surf Coast.[10] Also, there was night work extending into overtime hours when the plaintiff was away seeing pharmacists.
[9]T26
[10]T27
97 Mr McEvoy agreed the plaintiff went to Bali in September 2011 for about ten days, travelling with her brother, mother and father. He confirmed he and the plaintiff went to Bali for their wedding anniversary in March 2012 for about ten days. Further, the plaintiff went to America with their boys to attend a skateboard camp for three weeks, travelling to Los Angeles and the east coast.
98 Mr McEvoy confirmed he and the plaintiff have private health insurance.
99 The last time the family went water skiing was near Tocumwal about two years ago. The plaintiff could not ski and she sat on the riverbank. They had gone water skiing as a family for the last five or six years on a weekend basis, using a friend’s boat.[11]
[11]T32
100 Mr McEvoy agreed water skiing was something he and the plaintiff had both done, either together or separately, many years ago and taken up again as a family five or six years ago. They normally skied on the Australia Day weekend, staying at a motel or with friends.
101 The family has an annual family Christmas holiday on the New South Wales south coast enjoying water sports and the beach. They stay in their caravan, towed by a Nissan Patrol. The family have had that caravan for eighteen months. They have owned a caravan on and off for the last fifteen to twenty years.
102 Mr McEvoy confirmed the family’s various residences as set out in the defendant’s licence document. Mr McEvoy confirmed the names of a number of the plaintiff’s friends from Williamstown who were mentioned on Facebook and with whom she had maintained friendships.[12] Those friends probably visit down the coast more than he and the plaintiff go to Williamstown to see them.
[12]T39
103 Mr McEvoy and the plaintiff do not go out much anymore as the plaintiff cannot sit that long and she is always fidgety. Going out for dinner is about the extent of it.[13]
[13]T39
104 Mr McEvoy works mostly five days a week in his rubbish removal business, operating from his mobile phone. Predominantly, he takes the boys to skateboarding on the weekend. The plaintiff comes too, but depending how she is feeling on the day.
105 The plaintiff’s present job with The Good Guys is technically five days a week. She is on call and carries on business from her mobile phone.
106 Ms Angela Thomson, a friend and co worker of the plaintiff, swore an affidavit on 29 January 2013.
107 Ms Thomson first met the plaintiff in August 2012 while travelling to Sydney to attend a one week training course with Kitchen Designs. She became aware of the plaintiff’s accident injuries shortly after she got to know her.
108 While working with the plaintiff, Ms Thomson has often noticed the plaintiff complains of pain, in particular in her neck and shoulder, and incapacity as a result of her transport accident injuries. The plaintiff told Ms Thomson that prior to the accident she was energetic and capable.
109 The plaintiff often becomes upset when they discuss work due to her incapacity to perform the work required of her and often becomes frustrated and saddened by her incapacity. Ms Thomson has observed the plaintiff often pushes herself to work through her pain because she wants to continue working and provide for her family. Since working together, she recalls seeing the plaintiff take pain medication for the pain she believes the plaintiff experiences as a result of her transport accident injuries.
110 Ms Thomson has observed the plaintiff often significantly struggles to do the work required, tending to avoid heavier duties such as lifting her bag with materials and samples, as well as prolonged driving. As part of the job, they are required to attend meetings every Monday in Richmond. She drives the plaintiff and assists her with her bag.
111 Ms Thomson recalled that the plaintiff often tells her that she continues to experience pain in her neck and right shoulder as a consequence of the transport accident injuries. The plaintiff has also told her she suffers from headaches. Ms Thomson has noticed from the plaintiff’s demeanour that she tends to struggle to cope with completing the full workload.
112 Ms Thomson believes the plaintiff’s inability to sustain her previous self employment as a result of her transport accident injuries has led to her losing her foothold within the industry which she worked hard to establish. She recalls the plaintiff has told her that she was previously self employed and it is obvious to her that the plaintiff was very dedicated, talented and diligent. She believes that selling the successful business was a constant source of disappointment for the plaintiff and it made her very upset that she was not able to cope with running a business.
113 As a result of her transport accident injuries, Ms Thomson believes the plaintiff does not spend as much quality time with her family and in particular, her children, who are generally very active. She has noted that much of the plaintiff’s life is now filled with worry and anguish about how she is going to continue to support her family and further her career, as well as the effect the transport accident injuries have on her life.
114 Ms Thomson confirmed her affidavit in examination-in-chief.
115 In cross-examination, Ms Thomson confirmed the circumstances of meeting the plaintiff when doing a five-day training course from 9.00am to 5.00pm with Kitchen Design Systems. The course involved how to measure, plan and sell the product, which included doors, surfaces and tops.
116 Ms Thomson and the plaintiff worked the same area, but not together, doing appointments separately, five to six days a week. Sometimes they had a day off in the week so they worked on a Saturday, direct from home or sometimes in the showroom in Geelong. Mainly the work was in Geelong and the Bellarine Peninsula, within half an hour of Geelong.
117 On Mondays, Ms Thompson goes with the plaintiff to meetings in Richmond which are basically an update on the week and debriefing, and any further training they need. The meetings start at 2.00pm and usually last for a couple of hours. They drive there together, with Ms Thompson usually driving. She and the plaintiff do separate jobs in Geelong and sometimes they might meet up in the showroom every couple of months when they have an appointment on a sale day, where lots of people come in with a booking and discuss their new kitchens.
118 Ms Thompson speaks to the plaintiff on the phone most days when they have finished an appointment to see how they have gone and sometimes she goes to the plaintiff’s house and they debrief on a meeting.
119 Ms Thomson and the plaintiff usually have appointments at 10.00am, 2.00pm or 7.00pm. It varies. There might be one or two appointments a day, with some weeks busier than others. The company tries to keep appointments between the two of them 50/50.[14] The other workers are mainly working from Melbourne.
[14]T53
120 Ms Thomson and the plaintiff do not have any contact socially, only at work.
The Plaintiff’s medical evidence
Treaters
121 Dr Junge, chiropractor, confirmed that pre-accident, the plaintiff had no shoulder complaint.
122 Dr Junge was asked by the plaintiff’s solicitors to provide a supplementary report, especially in regard to a serious injury certificate for the serious long-term loss of a body function in relation to each of the plaintiff’s cervical and thoracic spine, right shoulder, left upper extremity, foot and knee, and mental injury, which were described as permanent pursuant to s93.
123 Dr Junge explained the plaintiff’s pre-accident complaints, in particular, relating to the cervical spine, were of an insubstantial and minor nature, with the resultant treatment that he provided, being chiropractic spinal manipulation, giving the plaintiff medium to long term relief.
124 As a result of the success of treatment, the plaintiff attended more often for preventative reasons, being monthly scheduled visits or occasional flare-ups. She did not seek treatment from November 1999 until April 2003. All treatments were only ever required to be a standard consultation.
125 Dr Junge suggested, on balance, the plaintiff’s injuries, in particular the neck and shoulder, would not be in the symptomatic and incapacitating state they were presently in the absence of, or but for, the accident.
126 Dr Williams from Surfcoast Medical Centre first reported in September 2010. He noted the plaintiff attended on 19 July 2005, reporting she had been involved in an accident that morning, and she felt heat and pain in her neck and shoulders, and complained of a headache.
127 Dr Williams thought the plaintiff had the features of a classic whiplash injury. Symptomatic treatment was prescribed.
128 On 27 July 2005, the plaintiff attended complaining of pain and stiffness from the head to the lumbar region. Voltaren was prescribed, and advice for very gentle osteopathic treatment given.
129 The initial medical certificate of 17 August 2005 signed by Dr Williams set out “injury to neck/ shoulder/ back, musculo lig strain [whiplash]”.
130 Dr Williams noted x‑rays of the shoulder and neck in November 2009 were unremarkable, and an MRI scan at that time revealed degenerative changes in the tendons of the right shoulder and the intervertebral discs of the cervical spine.
131 At that stage, Dr Williams noted that, despite treatment, the plaintiff continued to suffer headaches, shoulder and neck pain, as well as pain radiating down the spine. He noted that she had recently had a cortisone injection from Mr Wood, orthopaedic surgeon, with temporary benefit.
132 Dr Williams thought the plaintiff sustained musculoligamentous injuries to her neck and shoulder in the accident which had not healed, and continued to cause distress, pain and disability. Those injuries interfered with her capacity to perform her physically demanding work as an interior designer through pain and fatigue. At that stage, he thought whilst there was a possibility that further therapeutic intervention could benefit the plaintiff, it was reasonable to conclude her condition had stabilised and was likely to persist. He noted the plaintiff did obtain benefit from physical therapy and also would benefit from a pain management program.
133 Dr Williams reported again in August 2012. He thought that there would be an improvement in function, and diminution of pain in the right shoulder, as a result of rotator cuff surgery, although he did not expect complete functional recovery. There was no question in his mind on balance that the plaintiff’s injuries would not be in their current incapacitating state but for the accident. He concluded as a result of the right shoulder injury, the plaintiff sustained tearing to the muscles in the right rotator cuff.
134 In the early phase of the injury, Dr Williams thought the plaintiff’s general distress and neck injuries were predominant, although she had already complained of shoulder pain. Over the ensuing years, he noted she had continued to suffer physically, financially, and emotionally from head, neck and shoulder pain. He noted meanwhile, the nature of the specific right shoulder injury, namely tearing of the rotator cuff muscles, had become increasingly obvious and increasingly debilitating. He concluded, hopefully, a surgical decompression procedure would give the plaintiff sufficient relief to be able once more to enjoy a reasonably active and pain-free life.
135 Dr Williams last reported on 18 January 2013, when he repeated his earlier views, but did not comment at all on the benefit of surgery or otherwise. Having been shown the surveillance film, he did not change his opinion.
136 In an initial letter to the defendant in December 2007, osteopath, Ms Molloy, advised that the plaintiff had sustained severe neck pain and right hip pain in the region of the seatbelt and also complained of pain in the middle of her back and between her shoulder blades, and even into the right sole and heel of her foot.
137 Ms Molloy advised that she had been treating the plaintiff weekly for five months, and fortnightly then for another four months for whiplash, and that treatment gave some relief from neck and back pain, although the plaintiff still had the typical muscle spasms of whiplash throughout the whole spine, and associated body fatigue. She then highly recommended the treatment be allowed to continue.
138 Ms Molloy reported in December 2012. She described the injuries from the accident as spine, in particular the cervical and thoracic spine; right upper extremity, and in particular the shoulder; left upper extremity; right lower extremity, and in particular, the foot and knee, and behavioural disturbance.
139 The plaintiff first presented for osteopathic treatment with Ms Molloy on 22 July 2005, three days after the accident, with neck pain, headaches, right shoulder pain, right hip pain and pelvis pain. Five days later when she attended, the plaintiff complained also of thoracic and right foot pain.
140 Ms Molloy noted those initial symptoms are still apparent and severe today, although the right shoulder has become more seriously degenerated, and the plaintiff’s overall physical and mental ability compromised.
141 Ms Molloy diagnosed, in relation to the cervical spine, whiplash, disc bulge at C6‑7, Grade 1 spondylolisthesis at C3‑4 with uncovertebral lipping (MRI) and thoracic spine hypertonic thoracic paraspinal muscles from cervicothoracic whiplash syndrome.
142 In relation to the right shoulder, Ms Molloy noted it was immediately painful after the accident. She diagnosed a supraspinatus intrasubstance tear, biceps tendon SLAP 1 tear, subscapularis tendinosis with subscapular bursal effusion (MRI).
143 Ms Molloy thought full-time work of any description would give symptoms. She noted the plaintiff could not partake in a number of activities because of the severity of her injury, noting regular headaches affecting concentration, and her neck and shoulder pain were an encumbrance to driving, lifting and carrying. The plaintiff’s left arm and right arm and shoulder pain and reduced movement made most physical activity impossible. She became fatigued and utterly exhausted many days of the week.
144 Ms Molloy noted any work that entailed amounts of time walking or standing, particularly on hard surfaces, flared up the plaintiff’s foot and leg pain. In her view, all the injuries meant the plaintiff’s ability to hold down a full-time job or even work set hours was difficult.
145 Over the seven years of treatment, the plaintiff’s pain has either remained or worsened. Her positivity has reduced, her stress levels have increased, and irritability and despair have become more apparent.
146 Ms Molloy thought decompression surgery may improve the plaintiff’s shoulder pain and mobility. As the plaintiff still had so much pain and disability in her head and neck, upper back and extremities, Ms Molloy did not ever see her making a full recovery.
147 Physiotherapist, Catherine Anderson, reported in December 2007 that the plaintiff had been attending for fortnightly physiotherapy for management of her neck and shoulder symptoms, and in addition, had reported right foot pain.
148 Paul Graham, podiatrist, reported in December 2007 of the plaintiff’s persisting right heel complaints, noting that she had had a car accident in which she had suffered multiple injury sites.
149 Dr Scott-Smith, chiropractor, has reported on a number of occasions. He advised that in October 2009 the plaintiff had been recently attending for car accident injuries, causing pain and extreme muscle stiffness to her cervical, thoracic, lumbar spine, right shoulder and arm pain, right foot and knee.
150 Dr Scott-Smith reported at that time, of major concern was the right shoulder, with pain that had gradually become worse since the accident. He then thought the plaintiff had a right supraspinatus tendon tear or tendonitis and her symptoms also indicated a cervical disc bulge may also be evident, and he asked for approval for an MRI scan.
151 In February 2010, Dr Scott-Smith reported the plaintiff had been attending since 13 November 2008 for injuries to her cervical, thoracic and lumbar spine, right shoulder and arm pain, right foot and knee.
152 Dr Scott-Smith noted the results of the MRI scan and that conservative chiropractic rehabilitation had been performed weekly to fortnightly.
153 It was his opinion that the plaintiff had sustained extensive injuries to her cervical spine and right shoulder as a direct result of the accident, with a cervical spine disc bulge at C6-7 level and a Grade 1 spondylolysis at C3-4 with right sided uncovertebral joint degeneration which he thought was most likely as a result of the whiplash.
154 Dr Scott-Smith noted the plaintiff’s right shoulder injuries included a supraspinatus intrasubstance tear, subscapularis tendinosis, subscapularis bursal effusion and a biceps tendon slap. He thought it was most likely caused by the force of the collision, with the plaintiff’s arm and shoulder flexed at 90 degrees on the steering wheel.
155 Dr Scott- Smith later reported in July 2012, noting that the plaintiff’s functional goals then included to be able to drive or sit longer than ninety minutes without pain, sleep longer than six hours without waking with pain, lifting weights overhead without pain, standing or walking for two hours or more without pain and to score a neck disability index score of 26 per cent or less.
156 He noted that ongoing chiropractic rehabilitation had improved the plaintiff’s condition significantly.
157 In his February 2013 report, injuries were described as C6-7 left paracentral disc protrusion, cervicothoracic whiplash syndrome, right shoulder supraspinatus tendon tear and subscapularis tendonitis and biceps slap one tear.
158 Dr Scott-Smith thought the plaintiff’s condition had stabilised to a manageable level, when she was combining regular physical therapy and prescribed medication. He thought that full recovery to her pre-injury physical condition was extremely poor. He considered that she would require decompression surgery as recommended by Dr Wood. The surveillance film did not change his views.
159 Mr Robert Wood, orthopaedic surgeon, saw the plaintiff on referral from Dr Williams in late 2009 for her problematic shoulder and neck.
160 In response to the referral letter, Mr Wood advised Dr Williams that while the plaintiff presented with pain in the lateral aspect of the right shoulder, and had some pins and needles, she did not have any neurological sequelae. He thought the bigger issue was actually the neck, with the pain going across from the shoulder to the neck, or it may be there was a separate entity. It was hard to tell.
161 On initial examination, the neck range of motion actually was not that bad, with slight reduction of lateral flexion. Right shoulder abduction was markedly reduced. Impingement signs were moderately positive; however, the biceps was very tender.
162 Mr Wood reported that x‑rays were unremarkable, although on plain films of the neck there was an irregularity at C3‑4. The plaintiff’s MRI suggested a cervical spine with a prolapse at C3‑4 that may be impinging on the right C4 nerve root and some other general issues up and down the neck.
163 Mr Wood noted the MRI of the shoulder suggested possible partial thickness tear of the supraspinatus with some tendinosis of the supraspinatus and subscapularis, and a bursal effusion. He noted tears on MRI are often over-read, but any positive finding at this stage of tendon tearing was concerning.
164 Mr Wood reported the plaintiff’s rotator cuff strength was markedly reduced on the right side in all three main muscle groups. However, the plaintiff was very sore with all of them, and he believed there was a lot of voluntary and involuntary inhibition with that. He injected her that day, but was concerned, with four years of pain, that the plaintiff would be cured by that injection.
165 In January 2010, Mr Wood advised the defendant that the plaintiff may need a rotator cuff repair, but he did not expect that to be the case.
166 On review that month, Mr Wood noted the injection had helped temporarily.
167 Mr Wood thought, consequently, the main thing he could do for the plaintiff was shoulder decompression, and he would have a look at the tendon to see if the tear was truly there that showed on the MRI but he suspected it would not be. Mr Wood thought there was a high chance of fixing the plaintiff’s shoulder pain and restricted movement.
168 Mr Wood noted the shoulder injury was one of subacromial decompression impingement with some MRI evidence of a rotator cuff tear, which, considering the latest physical examination, was likely to be a small one. He conceded the aetiology was very directly related back to the accident, as the plaintiff is a relatively young lady to experience this trouble at forty six, and when she had the accident she was thirty nine. It was a very early age to have the problem. He noted it could often be experienced as part of a direct trauma which would be the case with respect to the accident.
169 Mr Wood had little doubt the plaintiff’s neck issues also related back to the accident. In his view, it was a fairly classic soft tissue injury that one experienced in a car accident, along the lines of the much maligned but actually quite real whiplash or soft tissue injury.
170 With respect mainly to the right shoulder, Mr Wood noted the physical effects were restricted shoulder pain and motion, but with the temporary relief experienced with cortisone and local anaesthetic, it was quite apparent that the rotator cuff strength was not too bad. He suggested if there was a significant tear, as suggested on MRI, that it is not large, but, if there, it needed to be fixed for the long-term health of the shoulder. He noted to lose one of the rotator cuff tendons creates an imbalance in the shoulder which can lead to a very significant and profoundly debilitating arthritic change within the shoulder joint. Consequently, any suggested tear on imaging or examination really needed to be treated in the mid forties to prevent further arthritic change. He noted he must admit clinically; however, he did not think the tear was overly large, but the MRI considered it to be there.
171 Mr Wood noted the restriction of the injury to the right shoulder in particular was profound with respect to the plaintiff’s pursuit of social or recreational and occupational activities, in that she could not elevate it to above 100 degrees actively, which he would have to consider to be extremely debilitating, as it was her dominant arm, and would affect housework and sporting activities.
172 Mr Wood noted the temporary relief achieved with cortisone and local anaesthetic showed that a significant portion of the plaintiff’s discomfort was coming from the subacromial space, and a significant portion of her experienced weakness was probably related to the pain emanating from that region.
173 Subacromial decompression henceforth would be considered to be likely to bring about a fairly significant reduction in the discomfort and an improvement in range. At the same time the rotator cuff could be assessed, and could be treated if necessary, and one would expect the plaintiff would have a significant improvement in her natural history with respect to the eventual degeneration of the shoulder.
174 This would be followed by a significant period of physiotherapy, which one would expect to bring about a full resolution of a range of motion issues, and, if not a full resolution, then a significant improvement.
175 In short, Mr Wood expected that surgery would relieve the plaintiff of her pain and significantly improve her movement. He thought it was farcical to suggest that as it was four years since the accident, there was no chance of success of the operation. He did not believe that on balance the plaintiff would be in her current position had it not been for the accident. In short, he thought the plaintiff had a very high chance of recovering a greater part, or even all, of her function with surgery, and to say otherwise was to be uninformed.
Investigations
176 The plaintiff underwent a series of spinal x‑rays on 12 October 2009.
177 The examination of the cervical spine showed normal alignment in both frontal and lateral views. There was a normal appearance of the facet joints and uncovertebral joints. The C1‑2 open mouth view appeared normal. There was normal odontoid process and lateral masses of C1, no visible vertebral collapse, and normal paravertebral soft tissues.
178 There was a minimal degree of anterior osteophyte lipping noted in the mid-thoracic region. The alignment appeared satisfactory in both frontal and lateral views, and there was no significant collapse, and normal intervertebral disc spaces. The pedicles were normal.
179 There was slightly accentuated lumbar lordosis, normal vertebral heights and disc spacing. There was no visible pars defect and minimal degree of lumbar scoliosis convex to the right, centring at L3.
180 There was an MRI scan of the cervical spine on 27 November 2009. It was reported there was minimal Grade 1 spondylolisthesis of the C3‑4, with early right-sided uncovertebral joint degenerative change. There was no nerve root impingement seen, despite minimal right C4 neural exit foraminal narrowing. There was small left paracentral disc protrusion at C6‑7 without foraminal or central canal compromise.
181 On MRI of the right shoulder in November 2009, it was reported there was an intrasubstance delamination and small bursal surface tears. They were quite small, and may not be traumatic in nature. There was non specific tendinosis at the insertion of the subscapularis with a small subscapularis bursal effusion. There was degenerative type signal change at the biceps anchor consistent with a SLAP 1 tear.
Medico-legal evidence
182 Professor Myers, vascular surgeon, first examined the plaintiff in November 2010.
183 Professor Myers thought that the plaintiff had a range of injuries – damage to the cervical spine, manifested by a degree of spondylolisthesis and disc protrusion, rotator cuff injury, and secondary capsulitis of the right shoulder, possible aggravation of degenerative intervertebral disc disease in the lumbar spine, and possible damage to the right knee and foot.
184 Professor Myers thought all conditions were due to physical causes. He was not given a detailed history of the onset of the shoulder problem.
185 Professor Myers noted a report of the MRI scan of the right shoulder performed in November 2009 showed an intrasubstance tear in the supraspinatus tendon as well as inflammatory changes in the subscapularis and biceps muscles of the rotator cuff.
186 On examination, there was a marked restriction of right shoulder movement associated with pain. There was a fifty per cent reduction of cervical movement causing apparent pain. There was normal lumbar spine movement and no abnormality relating to the right knee. There appeared to be tenderness over the medial aspect in the mid carpal region of the right foot.
187 Professor Myers re‑examined the plaintiff on 3 October 2012.
188 There was then an approximately fifty per cent restriction of range of cervical spine movement apparently associated with pain. There was minimal restriction in the range of movement of the low back, and there was marked restriction of right shoulder movement, apparently associated with pain.
189 Professor Myers then diagnosed damage to the rotator cuff structures in the right shoulder and aggravation of pre-existing intervertebral disc disease in the cervical and lumbar spine, all related to the accident.
190 Professor Myers thought the plaintiff would be unable to cope with her pre-injury employment and was barely able to cope with her present reduced level. He thought the prognosis was poor, with interference of capacity for work and enjoyment of life. In his view, there was a negligible psychological contribution.
191 Professor Myers considered the plaintiff required permission from an orthopaedic surgeon to assess whether she warranted an arthroscopic repair of the damage to her right shoulder.
192 Professor Myers provided a further report, having seen the plaintiff’s affidavit of 22 October 2012 and Mr Dooley’s comments in his October 2012 report, that the findings in the right shoulder shown on MRI were naturally occurring and age related and not caused by the accident.
193 Professor Myers commented that he did not understand the basis of Mr Dooley’s opinion as he considered on balance there was likely to be an association and no reason to consider development of changes independent of the accident.
194 Noting the second accident, Professor Myers thought virtually all the plaintiff’s current disability related to the subject accident.
195 On balance, Professor Myers thought the right shoulder would not be in its symptomatic and incapacitating state if not for the accident.
196 Mr Kenneth Brearley, orthopaedic surgeon, examined the plaintiff in January 2013. The plaintiff told him of always having some pain in her neck, and very frequent pain in the right shoulder, and settled pain in the right knee.
197 On examination, there was no deformity of the neck. There was tenderness of moderate grade over the back of the neck, and moderate limitation of movements in all directions, these being about 70 per cent of normal. There was no deformity or tenderness, and no wasting of the right shoulder. There was very marked limitation of movement.
198 Mr Brearley had available to him the MRI of the cervical spine and right shoulder taken in 2009.
199 Mr Brearley diagnosed intradisc damage at the C3‑4 intervertebral disc with some probable pressure on the right C4 nerve root. He mentioned a small disc protrusion had also been shown at C6 on MRI.
200 Mr Brearley also diagnosed a partial thickness tear of the supraspinatus tendon of the right shoulder with inflammatory change in the other tendons of the rotator cuff, including subacromial bursitis.
201 Mr Brearley thought all the plaintiff’s injuries dated from the accident, with a very short aggravation following the second accident. He noted prior to the accident, the plaintiff had had some episodes of neck and back pain, but they did not interfere with her life.
202 Mr Brearley reported the plaintiff was currently working full-time as a kitchen designer, and prior to the accident, she had had her own business but had to sell it, as she was not able to cope properly with it in view of her neck and right shoulder injuries and ongoing symptoms.
203 Mr Brearley, in answer to the enquiry about the physical effects of the plaintiff’s serious injuries upon her ability to engage in social, recreational or domestic activities, noted there had been serious interferences with various activities.
204 When asked about his prognosis for the plaintiff’s transport-related injuries and their continuing effect on her capacity to work or interfere with her enjoyment of life, Mr Brearley advised the prognosis was not good. He anticipated the plaintiff would continue to have her present symptoms, disability and impairment for the foreseeable future, and that would interfere with her capacity to work and her enjoyment of life. His conclusions were based on the physical injuries, noting he was not aware of any psychological contribution to the plaintiff’s pain and suffering and loss of earning capacity.
205 Mr Brearley thought the plaintiff needed to see a surgeon again with regard to operative treatment for her right shoulder, which could be helpful despite the late stage of her condition.
206 Mr Brearley, in answer to questions from the plaintiff’s solicitors, agreed the accident injury to the plaintiff’s neck had very significant consequences for her.
207 Mr Brearley provided a supplementary report on 14 February 2013, commenting on Dr Fraser’s report. Mr Brearley noted it was difficult to know whether the plaintiff was suffering from regional pain syndrome or whether she had unresolved physical injuries to the neck involving the ligamentous structures, which were notoriously slow to heal. Superimposed on that, he thought there certainly could be some functional elements resulting from anxiety or her ongoing symptoms.
208 Mr Brearley agreed the plaintiff’s symptoms were not related in any way to the second accident.
209 Mr Brearley noted the MRI findings were certainly minimal, showing some bursal surface tears of doubtful origin. He also noted there was a small subscapularis bursal effusion and a possible tear of the glenoid labrum. He agreed the prognosis was poor, particularly if the plaintiff developed an ongoing pain syndrome.
210 Mr Brearley thought probably surgery would not be helpful at this time, but that apparently was not Mr Wood’s opinion who considered that the subacromial decompression could be very helpful in reducing the plaintiff’s pain and increasing movements of her shoulder.
211 Mr Brearley thought that many of the plaintiff’s symptoms and signs were the result of physical injury, and confirmed that she does have significant interference with domestic and leisure activities which result from the accident.
212 Mr Brearley was shown the film, as was Professor Myers. Neither thought it was of any significance.
213 Dr Helen Sutcliffe, occupational physician, examined the plaintiff on 20 September 2012.
214 The plaintiff described headaches on most days, with pain constantly in the posterior aspect of the neck and right shoulder girdle. In addition, she had anterior right knee discomfort, and pain in the foot.
215 Dr Sutcliffe reported that as a result of increased pain on activity, the plaintiff experienced limitation of walking to about twenty minutes, but she continued to the limit. Sitting was limited if she was unable to look directly to the front. The plaintiff could not stand for any time that was significant, as she needed to move around. Whilst driving she had onset of pain, but continued going. She was able to manage self care, and she had assistance in household tasks.
216 The plaintiff was assessed as having a good range of movement of the neck. Hand grip on the right was 5, and on the left 20 kilograms. There was not any wasting of the upper limbs. There was some limited right shoulder movement. On examination of the upper limbs, reflexes were active and equal, and there was no alteration in sensation. There was some restriction of right elbow extension compared to power on the left.
217 From the history obtained, and following examination and perusal of the investigations, Dr Sutcliffe believed the plaintiff sustained onset of a whiplash injury to the cervical spine as a result of the accident. She noted it also appeared there were changes in the cervical spine consistent with minor spondylolisthesis.
218 In addition, Dr Sutcliffe believed the plaintiff sustained onset of supraspinatus tear, bursitis and rotator cuff tear in the right shoulder, as a result of the accident, and she continued with pain in the right shoulder and neck. Further, she had persisting knee pain, and also pain in the right foot.
219 Dr Sutcliffe thought it appeared both conditions related to the accident. She noted the plaintiff had continued in the normal range of occupations but had found inability to undertake the very busy occupation of sales representative because of the effects of the accident.
220 Dr Sutcliffe believed the consequences of the accident had resulted in a very substantial loss of capacity for the activities of daily living, in social, domestic, leisure and employment activities, and that would continue into the foreseeable future.
221 Having seen the film, Dr Sutcliffe thought there was no reason to modify her previous opinion.
222 Dr Kaplan, psychiatrist, first examined the plaintiff on 30 November 2010.
223 The plaintiff told him she immediately experienced pain in the neck after the accident. She stated that she had experienced persistent pain and fatigue since the accident and had consequently been less productive. The plaintiff advised she was exhausted and the tiredness was unbelievable. She reported she could not cope with her workload, and had put the business up for sale.
224 The plaintiff described constant neck pain, fluctuating in severity, radiating into the back of her head and shoulders. She also described intermittent right knee pain. The plaintiff stated that she still enjoyed social activity, although that was restricted by her injuries and her fatigue.
225 On mental state examination, the plaintiff appeared to be in some physical discomfort. Her thinking was characterised by a preoccupation with her injury and its impact on her life, and she expressed frustrations about her injuries.
226 Dr Kaplan noted the plaintiff was traumatised by her accident and left with some psychological sequelae in terms of flashbacks and hypervigilance and anxiety in the car. Dr Kaplan concluded that the plaintiff’s pain and loss of earning capacity were related to her physical injuries only.
227 Dr Kaplan re‑examined the plaintiff on 31 October 2012. The plaintiff told him that she felt exhausted by the end of the day, and she commented “I crash because I’m so physically exhausted,” and her pain sometimes woke her. The plaintiff advised she had sold her business because it was too much on her body.
228 The plaintiff again expressed intense frustration about her injuries and their impact on her life.
229 Dr Kaplan concluded the plaintiff continued to experience psychological sequelae described by him following the first examination. He noted the plaintiff still became irritable occasionally when her pain was severe. He did not think she suffered from depression or anxiety, and that was the measure of her resilience and personality strengths. He thought the plaintiff’s psychiatric condition was unlikely to affect her capacity for employment, noting her condition had had an impact upon her relationships with other family members, although that was mild.
Claim documents
230 The plaintiff signed a Transport Accident Commission Claim Form on 17 August 2005. She described being stationary and her vehicle being hit from behind three times. The plaintiff listed her injuries as follows – whiplash injury to the neck, head pain, neck pain, shoulder pain – right side, shoulder pain – left side, musculoskeletal arm pain – left side, musculoskeletal arm pain – right side, back pain - upper and lower.
231 By letter dated 23 August 2005, the defendant accepted the plaintiff’s claim for a list of injuries set out in the claim form and/or accompanying medical certificate.
232 These included whiplash injury to the neck, head pain, neck pain, shoulder pain - right side, shoulder pain - left side, musculoskeletal arm pain - left side, musculoskeletal arm pain - right side, back pain.
The Defendant’s Medical Evidence
233 The following notes of the plaintiff’s attendances with Dr Williams were relied upon:
· 26 December 2004 – fatigue.
· 19 July 2005:
“Classic whiplash injury in the middle of four car pile-up this a.m. Upset, otherwise okay. Heat and pain in neck and shoulders, headache, and tired.”
· 27 July 2005:
“Pain, stiffness from head to the lumbar region. Tender on the spine and rhomboid insertion.”
· 17 August 2005 – whiplash was slowly settling.
· 13 February 2006 – persisting neck pain since whiplash injury, with osteo helping a bit, and investigations organised.
· 17 March 2006 – whiplash and persisting neck and shoulder soreness.
· 26 April 2006 – x‑ray of the neck earlier that month.
234 There were attendances for unrelated matters on 25 September 2006, 28 March and 4 August 2008 – tiredness, and 8 and 13 August 2008 – blood tests
235 The next recorded attendance was on 11 November 2009 when Dr Williams noted four years of headache, neck pain, and now six months of right shoulder pain since whiplash injury 2005, lots of fear and tension associated treatment of minimal benefit. Investigations were organised the following month of neck and shoulder and there was a referral to Mr Wood.
236 On examination on 23 December 2009, neck and shoulder were noted and some benefit from injection.
237 A Transport Accident Commission Chiropractic Questionnaire was completed by Dr Smith on 24 September 2011 setting out the misdiagnosis a tear of the right supraspinatus tendon and C6-7 left paracentral disc protrusion.
Medico legal evidence
238 Dr Fraser, rheumatologist, examined the plaintiff on 24 January 2012.
239 The plaintiff told him that at the time of the accident, she felt a twang in her neck and she subsequently developed neck pain, radiating to her head and to the right shoulder, as well as low back and right knee/foot pain.
240 The plaintiff told Dr Fraser that there had been no improvement over the years, with constant pain involving her neck, head and right shoulder, as well as some intermittent low back discomfort.
241 The plaintiff advised Dr Fraser that for about two weeks after the second accident, she had more neck, shoulder girdle and low back pain, but then it basically settled back to what it was.
242 Dr Fraser noted an overreaction on examination. Right shoulder movements were restricted and painful. Movements of the cervical spine were somewhat restricted, and the plaintiff complained of pain at the extremes of range.
243 Dr Fraser noted the x‑rays of the spine of October 2009 and the MRI of the cervical spine which showed minor degenerative changes at C3‑4 and a small left paracentral disc protrusion at C6‑7. Further, he noted an MRI scan of the shoulder was said to show small intrasubstance and partial thickness supraspinatus tears, as well as subscapularis tendinosis and degenerative changes at the biceps anchor.
244 Dr Fraser thought the plaintiff probably sustained musculoligamentous strains in the affected areas as a result of the accident. He considered any such soft tissue injury should have long resolved. In his view, the plaintiff’s ongoing symptoms were probably largely due to a Regional Pain Syndrome or synonymously localised fibromyalgia secondary to the injuries or associated emotional upset.
245 Dr Fraser noted pain amplification often occurs in this situation, and perhaps the minor degenerative changes in the cervical spine and right shoulder were minor contributing factors. He thought such changes were consistent with the plaintiff’s age, and had not caused or been accelerated in any way by the accident.
246 Dr Fraser noted Mr Wood pointed out in his reports of 11 December 2009 and January 2010 that it was by no means certain there were any rotator cuff tears.
247 Dr Fraser also noted that the restriction of movement at the affected sites, particularly the right shoulder, was much greater than one would expect with the reported radiological findings. He also thought it was relevant that the shoulder girdle pain seemed to have become much worse, some years after the accident, and he considered it drawing an impossibly long bow to suggest the accident caused a rotator cuff tear.
248 Dr Fraser referred to Mr Wood’s comments that there was voluntary and involuntary inhibition as a result of pain. However, Dr Fraser noted non organic factors of a psychosocial nature associated with Regional Pain Syndrome and localised fibromyalgia were responsible and the muscular tenderness in the posterior cervical/shoulder girdle noted by Dr Fraser and Mr Wood in December 2009 were consistent with that diagnosis.
249 Accordingly, Dr Fraser did not think the plaintiff would benefit from arthroscopic surgery or an active intervention to her shoulder, and he did not consider there was any point to ongoing physical therapy. He thought a further trial of Endep may be worthwhile, as well as exercise, to improve aerobic muscle fitness.
250 Dr Fraser noted the deterioration in respect to the right shoulder girdle pain occurred prior to the second accident, and again, that could not be implicated, noting that the plaintiff complained of a flare up for only two weeks. He did not consider the second accident had contributed in any way.
251 Dr Fraser did not think the MRI findings of November 2009 in relation to the right shoulder had been caused by the accident, and thought they were probably due to age related degenerative changes. He confirmed, in any event, there could be no certainty that there were in fact any significant rotator cuff tears.
252 Dr Fraser concluded that the plaintiff’s current symptoms and signs were largely due to non organic factors of a psychosocial nature secondary to the accident.
253 Mr Michael Dooley, orthopaedic surgeon, first saw the plaintiff on 31 May 2007.
254 The plaintiff then told him that after the accident she had significant neck pain and felt generally unwell.
255 On examination, the plaintiff noted ongoing soreness of the cervical spine together with headache and shoulder girdle pain.
256 There was tenderness over the cervical spine and the occipital region. There was limited cervical movement. There was a full range of shoulder movement, but the plaintiff complained of pain in the neck and shoulder girdle region with shoulder movement.
257 Mr Dooley initially diagnosed a soft tissue injury to the cervical spine region, with which the mechanism of the accident would be consistent. He thought most likely the injury involved musculoligamentous damage and it may have involved some aggravation of underlying degenerative disc disease.
258 Mr Dooley noted the plaintiff presented as a sensible and genuine historian, not exaggerating her symptoms. He believed her ongoing symptoms had an organic basis. He then thought it reasonable for the plaintiff to continue to have physiotherapy and osteopathic treatment, ultimately transferring to self-management. He believed her orthopaedic injuries had stabilised.
259 Mr Dooley then thought the plaintiff would continue to note intermittent cervical spine pain. He would be hopeful that the current constancy and intensity of that pain would improve with time, and he would not expect deterioration.
260 Mr Dooley re‑examined the plaintiff in April 2008. The focus of that examination was ongoing soreness in the right heel.
261 Mr Dooley again diagnosed a soft tissue injury to the cervical spine, noting that physiotherapy and osteopathic treatment had been helpful. While he accepted that the plaintiff may have sustained a soft tissue injury to the heel in the accident, Mr Dooley thought her current complaints did not necessarily correlate with that, noting she had typical symptoms on examination of plantar fasciitis.
262 Mr Dooley continued to be of the view that the plaintiff’s current symptoms had an organic basis, and that she had chronic neck pain following the accident. He believed she would continue to note intermittent cervical spine pain, and thought her heel would improve with time.
263 Mr Dooley re‑examined the plaintiff in August 2011. The plaintiff then told him that she had noted ongoing pain in her neck and right shoulder girdle regions and some low back pain, and also ongoing right heel pain.
264 On examination of the cervical spine, there was tenderness along the dorsum. There was restricted neck movement with movement. There was tenderness over the right shoulder girdle and restricted movement. Power in the right upper limb was generally reduced, sensation was intact, and reflexes were present and symmetrical.
265 Mr Dooley confirmed the earlier diagnosis of a soft tissue injury to the cervical spine region. Whilst in his view the majority of the plaintiff’s ongoing symptoms related to the organic injury suffered, Mr Dooley believed that she had had a psychological reaction to her injury that was accounting for some of her ongoing symptomatology.
266 Mr Dooley noted that while the MRI scanning of the right shoulder had shown tendinosis and a probable partial tear of the supraspinatus tendon, he could not correlate the radiological findings with the clinical examination that day. He noted the restriction of right shoulder girdle motion was greater than one would expect to see in that setting, and there were also some inconsistent signs in relation to passive range of motion.
267 Mr Dooley conceded that was not to say there was not an underlying degeneration of the rotator cuff, but more to say that the clinical scenario would suggest a psychological reaction, noting that overall the plaintiff presented as a sensible and genuine historian.
268 Mr Dooley concluded, from an orthopaedic viewpoint alone, he would expect the plaintiff to note some ongoing neck and shoulder girdle pain. He would not expect her condition to deteriorate over and above the natural evolution of any underlying degenerative condition.
269 The defendant asked Mr Dooley his views on further treatment. He responded in January 2012 that every effort should be made to direct the plaintiff’s treatment towards self management, but it was a decision for the defendant.
270 In October 2012, Mr Dooley reported that the findings on MRI scan of the right shoulder in November 2009 were naturally occurring and age related, and not unusual. He noted that there was non specific degenerative tendinosis of the subscapularis tendon, a degenerative signal change within the biceps tendon, and intrasubstance delamination associated with a small bursal surface tear of the supraspinatus tendon.
271 Mr Dooley considered all those findings were consistent with early, but definite degenerative rotator cuff disease and he did not believe they had been caused by the accident.
272 Mr Dooley noted the plaintiff had been referred to an orthopaedic surgeon who discussed the option of subacromial decompression surgery, and had noted his reservation about its predictability in relation to improvement in pain and function, as neck symptoms predominated over and above shoulder symptoms.
273 Mr Dooley thought if one were postulating that an injury occurred to the rotator cuff region in the accident, the plaintiff would have noted specific symptoms in relation to that at the time of the accident or very soon after. As far as he could tell, those symptoms did not appear for about five years after the accident, and therefore he did not believe one could postulate an association between those symptoms and the accident.
274 Mr Dooley thought it reasonable and appropriate to consider a subacromial decompression, and shared the treating orthopaedic surgeon’s opinion about the potential outcome.
275 Mr Dooley concluded the plaintiff’s symptoms after the accident had been consistent with a soft tissue cervical strain injury. He noted clearly patients who sustained such an injury could note pain in the shoulder girdle region. He noted in many situations patients understandably feeling symptoms roughly corresponding to the area where they felt pain after an accident that arises in the future may relate it to the accident.
276 Mr Dooley thought it clear that in the plaintiff’s situation, she had developed symptoms secondary to degenerative rotator cuff disease, and that with these symptoms being felt in the region of her shoulder, she had, not unreasonably, felt the situation related to the accident where she felt pain in the shoulder girdle consequent upon a soft tissue cervical spine injury. His view, however, from an orthopaedic scientific aspect, was that there was no connection, either clinically or radiologically, between the degenerative rotator cuff condition and the accident.
277 On re‑examination on 19 December 2012, the plaintiff reported persisting neck and right shoulder girdle pain. She noted intermittent right knee aching, and some pain in her right heel.
278 There was tenderness along the dorsum and cervical spine and over the occipital region of the skull. There was restriction of cervical spine and shoulder movement. There was tenderness around the right shoulder girdle and scapular regions.
279 Mr Dooley confirmed his earlier diagnosis and his view that the plaintiff did not suffer specific injury to the right shoulder in terms of the glenohumeral joint or rotator cuff regions. Mr Dooley commented that the aggravation in the second accident had been mild, attributing ten per cent of the plaintiff’s present situation to that accident.
280 From an orthopaedic viewpoint only, Mr Dooley expected the plaintiff to note ongoing intermittent cervical spine pain and shoulder girdle pain, noting that the pain had become more chronic in the last two years, believing her psychological reaction had influenced that situation.
281 Mr Dooley thought that ongoing regular formal conservative treatment was not required, and it would be better to reserve same for exacerbations, noting ongoing formal conservative measures could lead to a tendency towards an invalid role. Mr Dooley thought the plaintiff’s psychological reaction to her situation was impacting on her presentation in terms of her ongoing pain and described disability.
282 Mr Dooley noted the accident had resulted in the plaintiff having difficulty carrying out heavy household chores and tasks involving a lot of activity at and above shoulder level.
283 In March 2013, Mr Dooley commented on the plaintiff’s work capacity having been provided with Professor Myers’ report.
284 Mr Dooley confirmed that it had been his consistent view that the plaintiff had a physical capacity to carry out a range of at least light physical work and clerical duties, and had a physical capacity to work as a kitchen designer, working onsite and carrying sample bags.
285 Having been provided with material from Dr Junge, Mr Dooley concluded, on balance, the plaintiff was symptomatic spontaneously from degenerative disc disease of the cervical spine prior to the accident, and that such symptoms would have continued whether or not the accident occurred, but he remained of the view that the plaintiff sustained soft tissue cervical spine injury in the accident. Therefore, he concluded the plaintiff’s ongoing symptoms in that regard related to the continuation of the symptoms she had noted prior to the accident, the soft tissue cervical injury sustained in the accident, and her psychological reaction to her situation.
Other documents
286 A number of pages of Facebook entries pertaining to the plaintiff were obtained by the defendant and compiled on 29 November 2012. These entries contained reference to the plaintiff’s work, her trip to Sydney and also the United States.
287 A Vendor’s Statement dated 8 June 2011 set out the business had been operating for five years and four months, commencing on 31 January 2008. The business grossed $153,181 in 2009-10 and the following year, $205,989. The net profit of the business for those years was $11,212 and $78,503 respectively.
288 An advertisement for the sale of the business set out:
“Unique opportunity to purchase Geelong’s only Short Term Furniture Hire Business. Excellent returns. Established 5 years. All furniture in AS NEW condition. Very easy to operate with low overheads. Ideal for husband and wife.”
289 By letter dated 30 November 2012, the plaintiff’s solicitors advised Dr Williams that the plaintiff had suffered original or aggravated injury to each of the spine, in particular the cervical and thoracic, right upper extremity and in particular the shoulder, left upper extremity, right lower extremity and in particular the foot and knee, and mental or behavioural disturbance or disorder including anxiety, depression and PTSD arising out of the transport accident.
290 Dr Williams was advised that the instructions were to pursue a serious injury claim in relation to the cervical and thoracic spine, right shoulder, left upper extremity, foot, knee, and mental injury.
Overview
291 On the Claim Form signed by the plaintiff on 17 August 2005, she listed her injuries as whiplash injury to the neck, shoulder pain – left side, musculoskeletal arm pain – left side, musculoskeletal arm pain – right side, back pain – upper and lower. The defendant accepted liability for those injuries by letter dated 23 August 2005.
292 In the plaintiff’s first affidavit sworn 22 October 2012, the transport injuries were described as injury to the spine and in particular the cervical spine, thoracic spine and lumbar spine; injury to the right upper extremity and in particular the right shoulder; injury to the left upper extremity and in particular the left shoulder; injury to the right lower extremity and in particular the foot and knee, and mental and/or behavioural disturbance or disorder including but not limited to Post-Traumatic Stress Disorder, Anxiety and Depression.
293 In the second more detailed affidavit, the plaintiff deposed that the injuries suffered in the accident were an injury to cervical spine and right upper extremity; the pain from the cervical spine often radiating to the head, varied pain in the left upper extremity lumbar spine and right lower extremity; constant, though varied, mental and/or behavioural disturbance or disorder including but not limited to anxiety, depression and Post-Traumatic Stress Disorder (“each of my transport accident injuries”).
294 The application was brought in relation to the cervical spine and the right shoulder only.
295 It was submitted by counsel for the defendant that that was the course taken by the plaintiff’s legal advisers not the plaintiff herself, who deposed to a list of transport accident injuries, describing similar injuries in her claim form.
296 Whilst the affidavits were drawn up by her solicitors, the plaintiff, an intelligent woman, was responsible for their contents, having adopted them in the witness box and also having earlier deposed to them.
297 It was the defendant’s primary submission that it is the plaintiff’s case that it is the complex of injury from which she suffers both mentally and physically which causes her, or has caused her insofar as there have been causes, the consequences of which she complains, and there has not been the requisite differentiation.[15] In so doing, there was an attempted aggregation of all her injuries.
[15]T132
298 Despite now confined to two impairments, it was submitted what was patent was that right from start and up to the present, the plaintiff comes to Court having always complained of a wide variety and fairly large number of injuries, both physical and psychiatric, and has continued on that vein right to the present time, whether on affidavit or complaining to doctors.[16]
[16]T61
299 Acting on the plaintiff’s behalf, her solicitors taken the same approach in advising doctors from whom reports are sought that they are instructed the plaintiff seeks a serious injury in relation to a number of impairments beyond the cervical spine and right shoulder. This approach was apparent in the letters of instruction to Dr Williams and Dr Junge.
300 Any attempt to aggregate a number of injuries is impermissible, as the Court of Appeal held in Lu v Mediterranean Shoes Pty Ltd.[17]
[17](2000) 1 VR 511; Barwon Spinners Pty Ltd & Ors v Podolak (2007) 14 VR 622; Humphries v Poljak (supra) at paragraph 18
301 The plaintiff’s counsel correctly conceded aggregation was not permissible but submitted that the plaintiff was not attempting to aggregate her accident injuries[18] and that there was serious injury in relation to both the right shoulder and neck.
[18]T167
302 In final submissions, counsel for the plaintiff indicated the main thrust of the plaintiff’s case was the neck.[19] It was submitted that the plaintiff should succeed purely and simply on Mr Dooley’s opinion.[20] He focussed on neck pain right from the start, saying it was an organic soft tissue injury and the plaintiff’s shoulder pain was coming from the neck.
[19]T175
[20]T175
303 It was later submitted that if the preponderance of medical opinion was accepted, it could be found the shoulder of itself was a serious injury, but there was a very strong case for the neck.[21]
[21]T181
304 Although no concessions in this regard were made by counsel for the plaintiff, the main reliance on the cervical impairment was understandable given a number of difficulties the plaintiff faced in attributing a specific right shoulder injury to the accident, the medical debate as to the nature of the plaintiff’s right shoulder condition and the prospect that surgery may resolve any ongoing shoulder problems.
305 The plaintiff’s early limited shoulder complaints related to both shoulders and not specifically to her right shoulder until November 2009, some four and a half years after the accident. Early reports from the chiropractor and osteopath to the defendant make no specific reference to right shoulder complaints immediately after the accident, although later reports do.
306 Counsel for the defendant submitted that the right shoulder complaint was made in 2009 at a time the plaintiff was running a successful business, having done so for the previous three or four years.
307 Secondly, there was a medical debate as to the nature of the shoulder condition and its relation to the accident.
308 Although he thought the tear could be accident related, he considered decompression surgery was appropriate and any rotator cuff tear shown on MRI scan was minor and its repair incidental to the surgery he proposed and it was not causing the plaintiff a problem.
309 Mr Dooley did not consider there to be any specific injury to the right shoulder in the accident, noting the late complaint of pain and his view that changes shown on MRI in 2009 were of a degenerative nature.
310 Professor Myers, a vascular surgeon, not an orthopaedic as Mr Dooley and Mr Wood, places greater emphasis on the tear and is alone in his diagnosis of secondary capsulitis of the right shoulder, as no one else does.[22]
[22]T142
311 Dr Sutcliffe thought the tears were quite small and may not be traumatic in nature.
312 A third difficulty in succeeding in relation to the right shoulder was the medical opinion that surgery was likely to substantially resolve the plaintiff’s shoulder complaint, this raising the issue of permanency.
313 Dr Williams thought hopefully the plaintiff would be given a reasonable and active pain-free life following the decompression procedure.[23] Mr Wood thought surgery would relieve the plaintiff of her pain and significantly improve her movement. Mr Dooley shared Mr Wood’s view.
[23]T119
314 Mr Brearley and Professor Myers did not consider the plaintiff would benefit from surgery, nor did Dr Fraser, as he considered the plaintiff’s condition was psychological.
The cervical spine
315 I accept that in the accident the plaintiff suffered a whiplash/soft-tissue cervical spine injury with musculoligamentous damage and probably some aggravation of degeneration.
316 Spinal x‑rays undertaken for the first time in October 2009 were noted by Dr Williams to be unremarkable, a view shared by Mr Wood.
317 I reject Dr Fraser’s view, which stands alone, that any soft tissue injuries suffered in the accident should have long resolved and that the plaintiff’s ongoing symptoms are probably largely due to a Regional Pain Syndrome or fibromyalgia.
318 Further, I accept that the plaintiff’s condition is organically based despite Dr Fraser’s comments about her overreaction on examination, Mr Dooley’s most recent comments as to the plaintiff’s psychological reaction to her situation, Mr Brearley’ s view that there could be some functional elements and Mr Wood’s findings on examination that there was voluntary and involuntary inhibition on shoulder movement.[24]
[24]T151
319 Overall, the tenor of the medical evidence is that the plaintiff continues to suffer some pain and restriction as a result of her organically based soft tissue cervical spine/shoulder injuries suffered in the accident.
Credit
320 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[25]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[25](2010) 31 VR 1 at paragraph 12
321 An assessment of the plaintiff’s credibility cannot be made in terms of her viva voce evidence as she was not cross-examined – a situation which counsel for the plaintiff submitted could lead to some imbalance.[26]
[26]T168
322 Counsel for the defendant however, relied on what the plaintiff herself said about her accident injuries in support of his submission that her claim must fail.
323 As the application is brought by originating motion, evidence is on affidavit and counsel for the defendant pointed out it is not as if the defendant has evidence that it has to give the plaintiff an opportunity to respond to.[27] It was submitted in this case, it was not necessary to put to the plaintiff that she had relied on each of her transport injuries when describing the consequences, as she had consistently done so in her affidavits.[28]
[27]T80
[28]T86
324 It was further submitted that cross-examination as to matters about which the plaintiff herself only had intimate knowledge, such as household tasks, was of little utility.[29]
[29]T70
325 I accept the submission by defendant’s counsel that the plaintiff overstated her level of pain and restriction, describing adverse effects on every little bit of daily life, with nothing not affected by each of her accident injuries. I accept the plaintiff exaggerated her condition, such that she was incapable of doing absolutely everything conceivable.
326 In my view, the plaintiff’s description of difficulty with such minor tasks of putting on her shoes and socks, was at odds with her work and family life and ability to travel quite frequently overseas.[30]
[30]T140
327 Whilst there was some surveillance film, it was not shown, and medical examiners who had seen it did not consider it to be of any significance.
328 There is some suggestion of exaggeration by the plaintiff on examination with overreaction found by Dr Fraser and some voluntary inhibition of shoulder movement found by Mr Wood. Further, Mr Dooley noted the constancy and intensity of the plaintiff’s pain was becoming out of proportion to the organic situation.
Pain
329 As a result of her transport accident injuries, the plaintiff deposed she continues to experience constant though varied pain in her right upper extremity, in particular her right shoulder, as well as the cervical spine.
330 However, the plaintiff also deposed, as a result of “each” of her injuries, she experiences varied feelings of depression and anxiety. She also continues to suffer from varied pain in the left upper extremity, lumbar spine and right lower extremity. She also suffers from constant though varied mental and/or behavioural disturbance or disorder, including but not limited to anxiety, depression and Post-Traumatic Stress Disorder.
331 Counsel for the defendant conceded the plaintiff a complaint of pain – as Mr Dooley accepted intermittent shoulder and neck pain; but the complaint of pain is not the only relevant consideration. The extent thereof needs to be measured by what the plaintiff can do, what she has been left with and what has been taken away from her.[31]
[31]T137
332 In Dwyer v Calco Timbers Pty Ltd No 2,[32] Ashley JA stated:
“… in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”
[32][2008] VSCA 260 at paragraph 27
333 Maxwell P pointed out in Haden Engineering Pty Ltd v McKinnon[33] that the evidentiary basis of the pain will ordinarily comprise, inter alia, what the plaintiff does about the pain (eg medication, rest and seeking medical treatment).
[33](supra) at paragraph 11
334 The plaintiff has had limited treatment from her general practitioner, Dr Williams, in relation to her cervical spine and right shoulder, with treatment predominantly from an osteopath and chiropractor for a range of injuries.
335 At the initial visit to Dr Williams on 19 July 2005, the plaintiff complained of pain in her neck and shoulders. Later that month, she reported stiffness from the head to the lumbar spine. It was noted in the following month whiplash was slowly settling.
336 In February of the following year, there was a complaint of persisting neck pain. Whiplash was noted in March 2006 and an x‑ray of the neck was organised the following month which was noted to be essentially normal.
337 The next recorded attendance relating to the accident was 11 November 2009, when the plaintiff complained of six months of right shoulder pain.
338 Dr Williams has not seen fit to refer the plaintiff to any specialist – situation which counsel for the plaintiff submitted was extraordinary.[34]
[34]T152
339 Whilst the plaintiff has had osteopathic and physiotherapy treatment for her neck and right shoulder, and that treatment continues, such treatment has also been directed to the plaintiff’s other accident injuries.
340 The plaintiff deposed that she commenced osteopathic treatment with Ms Malloy for the treatment of each of the transport accident injuries in July 2005, and a period of physiotherapy treatment for each of her transport accident injuries from June 2006 to June 2008 at Newtown Physiotherapy and chiropractic treatment with Dr Smith for each of her transport accident injuries in November 2008. She deposed she consulted Dr Williams for each of her transport accident injuries in December 2009.
341 The plaintiff deposed that she continued to consult her treaters, including but not limited to her general practitioner, chiropractor and osteopath, for treatment of each of her transport accident injuries and continued to take medication to alleviate at least some of her pain. She has undertaken Pilates to aid in the treatment of each of her transport accident injuries.
342 The treaters themselves detail treatment for a range of conditions, with Dr Scott-Smith mentioning low back, right foot and left knee in his 2009 report, with similar complaints noted by Ms Molloy in her 2010 report.
343 The plaintiff has not been prescribed significant painkilling medication, taking only over-the-counter medication which she explained was the case because heavier medication caused her stomach problems.
Consequences
344 Counsel for the plaintiff submitted that the consequences of the plaintiff’s cervical spine/right shoulder impairment satisfied the test of seriousness set out in Humphries v Poljak[35] when the plaintiff’s situation before and after the accident was considered.
[35]Supra
345 At the time of the accident, the plaintiff was aged thirty nine, with three children, aged eleven, seven and five. She was working part time at Dulux, having earned $9,000 in the year prior to the accident.
346 It was submitted the plaintiff was an active, capable person, as supported by her husband’s evidence, and she previously was happy and positive, as Ms Molloy described.
347 Counsel for the plaintiff relied directly on Haden Engineering Pty Ltd v McKinnon,[36] submitting there were consequences experienced by the plaintiff considered relevant by the Court of Appeal in that case relating to sleep, mobility, cognitive function, capacity to self-care and management, performance of household and family duties, recreational activities, social activities, sex life and enjoyment of life.
[36]Supra
348 It was submitted the evidence was overwhelming as far as the neck was concerned, that when the plaintiff’s situation before and after the accident was considered, the consequences were “very considerable”.
349 While on occasion there is specific reference to the neck and shoulder in both affidavits, there are numerous references to consequences flowing relating to each of the plaintiff’s transport accident injuries.
350 This is also the situation to some extent in Mr McEvoy's affidavit. He deposed the plaintiff initially had general pain but pain in particular in her right shoulder and neck. He then went on to describe restrictions relating to each of her transport injuries, at times adding a specific reference to her right shoulder and neck.
351 The plaintiff deposed that she suffered varied feelings of depression and anxiety as a result of each of her transport accident injuries.
352 The pain from each of her transport accident injuries distracted her from enjoying herself at functions.
353 Since sustaining each of her transport accident injuries, the plaintiff has tended to avoid activities such as water skiing and body boarding, although she did say they place particular strain on her cervical spine and right shoulder.
354 Each of her transport accident injuries has affected the plaintiff’s ability to cook and entertain and bake.
355 Each of her transport accident injuries, in particular her cervical spine and right shoulder, significantly affected physical activity such as standing or sitting for prolonged periods, reclining for too long in one position, walking for prolonged distances or in a repeated fashion, reaching, bending, as well as repeated or prolonged twisting and leaning.
356 The cervical spine and right shoulder injury in particular restricted the plaintiff’s ability to do housework, but she also deposed housework was affected by each of her transport injuries.
357 The plaintiff complained of increased pain in her neck and right shoulder when putting on her shoes and socks and increased pain in her neck when she coughed or sneezed suddenly.
358 Due to the constant though varied pain as a result of each of the transport accident injuries, the plaintiff’s ability to enjoy a restful sleep has been affected, as has her sexual relationship with her husband. Ability to enjoy future grandchildren was affected by each of her injuries.
359 As a result of each of her transport accident injuries, the plaintiff experiences significant difficulties at work. The pain from each of transport accident injuries causes her problems with remaining attentive at work. That pain often causes her to experience mood swings and be snappy with her children.
360 The plaintiff deposed that as a result of each of her transport accident injuries, she had to cease self employment as she felt she was unable to cope with the rigours of self employment as a result of each of her transport injuries.
361 Mr McEvoy deposed that as a result of pain from each of her transport injuries, the plaintiff became increasingly less involved in the business.
362 There is no reference in the plaintiff’s affidavit or her husband’s evidence to a specific physical problem with the plaintiff’s neck or right shoulder running the business and having to sell it on that basis.
363 To the contrary, Mr McEvoy’s evidence was that the plaintiff was not required to do anything physical and merely gave directions to him where to put things. It was a job that required the plaintiff to not really to do anything other than “stand there and boss him around”.[37]
[37]T84
364 The plaintiff was not required to do any heavy lifting of whitegoods etc; that role was always done by someone else.[38]
[38]T65
365 Mr McEvoy described the plaintiff’s problem working in the business as one of tiredness, a situation confirmed by the plaintiff herself.
366 In any event, I am not satisfied that any present claimed accident related consequences relating to employment are “serious”.
367 The plaintiff has not established a significant deterioration in her work capacity as a result of any accident injury. No loss of income has been claimed.[39]
[39]T59
368 Whilst complaining of a number of significant injuries after the accident, the plaintiff was able to set up the business six months thereafter and continued in that role for nearly five and a half years, establishing a very profitable business, as the Vendor’s Statement set out.
369 Whilst the plaintiff had difficulty with driving in her next job at Swisse and working outside normal working hours, long drives are not involved in her present job. The only driving is a trip to Melbourne from Geelong once a week when the plaintiff’s co-worker, Ms Thompson, often drives. The plaintiff does not have to stop on this trip for a break, nor does she have any physical problem travelling as a passenger relating to her neck.
370 The plaintiff is able to undertake a wide range of her duties on a full time basis, the only problem being carrying plans which she deals with by using a wheelie bag. She can draw up plans, measure kitchens and consult with clients.
371 The history given by the plaintiff’ to doctors such as Dr Sutcliffe does not accurately reflect her current level of functioning at work.
372 The difficulty the plaintiff describes with concentration at work is said by her to be a result of each of her transport injuries.
373 Whilst Ms Thompson described the plaintiff complaining of difficulty doing her job due to her accident-related injuries, they share identical duties and no restrictions have been imposed on the plaintiff’s work tasks.
374 Although the plaintiff may have to rest at the end of a working day, her current job has greater commitment in terms of hours than when running the business.
375 In these circumstances, I am not satisfied there are employment consequences which are “serious”.
376 Another difficulty the plaintiff faces in her application is that she claims a number of impairments that can have nothing to do with her neck or right shoulder. She cannot possibly say she has problems sitting or walking relating to those claimed impairments.
Summary
377 I accept the submission by counsel for the defendant that the plaintiff did not identify, with any real specifity, the consequences of the neck and right shoulder injuries.
378 The material relied upon did not sufficiently disentangle the consequences of the plaintiff’s injuries and impairments that any way assists the Court in making a meaningful assessment of any particular identifiable injury that meets the test of seriousness as laid down in Humphries & Anor v Poljak.[40]
[40]Supra
379 Counsel for the defendant referred to a recent decision of Judge Jordan dealing with similar matters in Kundevski v Holden & Victorian WorkCover Authority.[41]
[41][2013] VCC 329
380 In that case, the application failed when his Honour held what had really been presented to the Court in that case was an aggregation of upper and lower limb impairments and psychiatric impairments and the plaintiff had failed to discharge the onus of establishing the consequences of what was relied upon was “serious”.
381 While the plaintiff does suffer some pain and restriction related to her neck/shoulder injury, in the present case, she did not identify with any real specificity the consequences of her neck and right shoulder injuries.
382 As the plaintiff has failed to identify consequences relating to her claimed impairment to the cervical spine/right shoulder that meet the test of “seriousness”, her application fails.
383 I am also not satisfied, for the reasons earlier referred to in paragraphs 304 -314, and the failure to identify with any specifity consequences relating to the right shoulder, that there is a serious injury in relation to the right shoulder in particular.
384 Accordingly, the plaintiff’s application is dismissed.
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