McGavin v TAC
[2012] VCC 979
•14 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-04170
| ERIN McGAVIN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17, 18, 21 and 22 May 2012 | |
DATE OF JUDGMENT: | 14 June 2012 | |
CASE MAY BE CITED AS: | McGavin v TAC | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 979 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION – Serious Injury Application
CATCHWORDS – Transport accident – impairment to right shoulder – is pain physically or psychologically based? – whether or not the consequences of injury are “serious” – expert evidence
LEGISLATION CITED – Transport Accident Act 1986, s.93; Evidence Act 2008, s.79
CASES CITED – Richards v Wylie (2000) 1 VR 79; Petkovski v Galletti [1994] 1 VR 436; Humphries & Anor v Poljak [1992] 2 VR 129; R v Hien Puoc Tang [2006] NSWCCA 167; Gunnersen v Henwood [2011] VSC 440
JUDGMENT – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Ms McKinnon | Maurice Blackburn |
| For the Defendant | Mr W R Middleton SC with Ms M Rozner | Hall & Wilcox |
HIS HONOUR:
1 The plaintiff has brought this application for serious injury by Originating Motion dated 3 September 2009. The plaintiff applies for leave pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages from injuries suffered by her arising out of a transport accident which occurred on 20 December 2001.
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff in this application is under s.93(17)(a):
“Serious long-term impairment or loss of a body function”
4 In this application, the plaintiff is not relying upon any consequences to her as a result of a “severe long-term mental or severe long-term behavioural disturbance or disorder” pursuant to s.93(17)(c).
5 The body function relied upon by the plaintiff in this application is the impairment to the right shoulder, with referred pain down her right arm.
6 The inquiry under s.93(17)(a) of the Act 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.
7 The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What the inquiry will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of the body function.[1]
[1]Richards v Wylie (2000) 1 VR 79
8 In this particular application, the distinction between physical impairment and a mental response to causing a complaint of pain is a real issue. In the case of Richards v Wylie, the following was stated.
“Thus, the judge, in making the inquiry, must be careful — particularly in cases where mental disturbances or disorders have supervened — not to lose sight of the focus which the definition in para (a) calls for lest he falls into the erroneous reasoning process of allowing the consequences of a mental disturbance or disorder to govern, or even intrude into, a finding of ‘impairment or loss of a body function’.
…
Thus, the ‘serious injury’ defined by para (a) of subs (17) can, I think, 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 itself constitute or be the producer of the impairment of a body function.”[2]
[2]Richards v Wylie (supra)
9 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 a comparison with other cases in a range of possible impairments be fairly described as at least ‘very considerable’ and more than ‘significant’ or ‘marked’?”[3]
[3] Humphries & Anor v Poljak [1992] 2 VR 129
10 The plaintiff swore and relied upon three affidavits, dated 18 March 2009, 5 August 2011 and 7 May 2012. The plaintiff also relied upon affidavits by Bree Wakefield, sworn 24 January 2011, David Lever, sworn 12 May 2011 and 8 May 2012, Benjamin Goodman, sworn 7 August 2011, Dianne McGavin, sworn 13 August 2011 and Scott Williams sworn 19 March 2012.
11 The plaintiff gave evidence and was cross-examined. The plaintiff’s mother, Dianne McGavin, gave evidence and was cross-examined. The Court heard evidence from three doctors: Dr Lazaridis, a general practitioner; Mr Andrew Weber, the treating orthopaedic surgeon; and Mr Kevin Fraser, a rheumatologist. The plaintiff also relied upon the evidence of Ms Colleen Kelly who was described as an expert in biomechanics.
12 In addition to the sworn evidence presented at Court, both parties relied upon medical reports and other materials which were tendered during the course of the proceeding. I have read all of the tendered materials.
13 The issues in this application were outlined by Mr Middleton, Senior Counsel for the defendant, at the commencement of the hearing. The issues were stated as follows:
(a)What injury was suffered in the transport accident?
(b)Are any of the ongoing symptoms of pain and restriction of movement complained of by the plaintiff consequences of the transport accident?
(c)Are the symptoms organically or psychiatrically caused?
(d)Do the organically caused symptoms or psychiatric reaction to the organically caused symptoms prevent the plaintiff from undertaking sporting or employment activities?
(e)What is the effect of the “expert” evidence of Colleen Kelly?
14 Mr Middleton SC stated that the injury or cause of the symptoms to the plaintiff is not based on a physical or organic injury to the right shoulder at this time.
The Plaintiff’s Background
15 The plaintiff was born on 30 October 1983. She is now twenty-eight years old. The plaintiff was married in September 2011 and lives with her husband here in Australia.[4]
[4]Court Book (“CB”) 15.2
16 The plaintiff had just completed her Year 12 at the time of the transport accident on 20 December 2001. In 2002, the plaintiff enrolled in and completed courses in Pilates and massage therapy. The massage course was completed at the Chisholm Institute in Frankston. The Pilates course was completed through Dance Medicine Australia, which conducted its training through Peninsula Physiotherapy Group. At the same time, the plaintiff was working at the local fish and chip shop for approximately 15 to 20 hours per week.[5]
[5]Transcript (“T”) 39
17 At the completion of her training as a masseur, massage therapist and Pilates instructor, the plaintiff worked in that capacity for some two-and-a-half years until the middle of 2004.
18 The plaintiff attended at Latrobe University to complete a Bachelor in Sports and Leisure Management form the middle of 2004 until she graduated in the middle of 2007.
19 Upon completion of the sports management degree, the plaintiff worked in a variety of events management employment. She worked for the Grand Prix Corporation, Holmesglen TAFE, as a supervisor at a fitness centre and a sporting competition firm called Engine.[6]
[6]T 45
20 In 2009, the plaintiff moved to the United States and worked and lived there for approximately one year. Whilst the plaintiff was in the United States, she was riding horses and snow skiing.
21 The plaintiff returned to Australia in approximately August 2010 and commenced employment with Australian Independent Rural Retailers (“AIRR”). Her job at that place of employment is in sales and marketing. Predominantly her work is desk-related with the use of a computer. The plaintiff is left hand dominant but she stated that she uses the mouse for the computer in her right hand. The plaintiff’s complaint is that extended use of the mouse causes a burning sensation in her right shoulder.[7] The plaintiff currently works full-time at AIRR and is receipt of approximately $60,000 per annum.[8]
[7]CB 13, paragraph 5
[8]T 65, L1-2
The Transport Accident Involving the Plaintiff
22 The plaintiff deposed in her first affidavit dated 18 March 2009 that she was in a stationary position near the intersection of the Nepean Highway and Wilsons Road, Mornington, in the State of Victoria, when two vehicles collided and the second vehicle crashed into the right hand front side of the plaintiff’s vehicle. The plaintiff was unable to open the door of her vehicle and she climbed out of the window of her car. She stated that she felt immediate pain over her neck and both shoulders as a result of the accident.[9] The plaintiff was taken from the scene of the accident by ambulance to the Frankston Hospital Emergency Department where x-rays were taken of her neck, chest and lumbar spine.[10] She was released home to her family on that same day.
[9]CB 7, paragraph 5
[10]Exhibit 2
23 When the plaintiff was cross-examined about not making a complaint of shoulder pain at the Frankston Hospital Emergency Department, she responded as follows:
“As at the - when I was at the hospital I was very distressed, I'd just been in a car accident. I don't recall exactly what I said to the doctors. Sorry.”[11]
[11]T 29, L7-10
24 It was clear from the plaintiff’s evidence that at the time of the accident and in the short period after it she was very distressed as a result of being involved in such a severe impact which caused the vehicle in which she was travelling to be written off.
25 On 27 December 2001, the plaintiff completed a TAC Claim Form before Dr A Lazaridis. In that Claim Form the plaintiff included in her injuries, “strained right rotator cuff”.[12] It is clear that from the beginning, the plaintiff was complaining of an injury to her right shoulder as a result of the transport accident in this case.
[12]CB 107
26 I accept that the plaintiff suffered an injury to her right shoulder in the transport accident on 20 December 2001.
The Plaintiff’s Medical Treatment
Dr Lazaridis
27 Dr Alexandra Lazaridis, general practitioner, gave evidence in this application. Dr Lazaridis prepared a number of reports for this case, dated 5 November 2004, 8 December 2004, 23 March 2005, 5 January 2006, 3 December 2007 and 24 April 2012. Dr Lazaridis was the plaintiff’s general practitioner throughout the course of treatment from the time of accident until the time of the hearing.
28 Dr Lazaridis’ first involvement with the plaintiff in respect of the injuries as a result of the transport accident was the signing of the Transport Accident Commission’s Claim Form.[13] In her evidence on this issue, Dr Lazaridis said as follows:
“Obviously I have seen Erin and I have seen her on 27 December and I have signed that form, but I can't give you evidence of that because I don't have that record here because it wasn't my clinic.”[14]
[13]CB 104-116
[14]T 143, L15-18
29 The plaintiff attended at the Premier Care Clinic, which was the same clinic Dr Lazaridis operated from at that time, on 20 March 2002. On that occasion, she saw another doctor. The doctor was identified as “Daniel”. The notation for that attendance on the practice is very scant and of no assistance in this application. The only reference in it is to a motor vehicle accident in December. It is clear from the printout, which is Exhibit A in this proceeding, that the Transport Accident Commission paid for this attendance by the plaintiff at the Premier Care Clinic.
30 The first time that Dr Lazaridis noted an attendance and examination of the plaintiff was 20 May 2002. The plaintiff has stated that between the time of the accident and her attendance on Dr Lazaridis on 20 May 2002, she had been attending at the osteopath and physiotherapist at Beleura Hill.
31 At the time of the plaintiff’s attendance on Dr Lazaridis on 20 May 2002, the doctor noted that the plaintiff was complaining of left shoulder pain greater than the right shoulder since the motorcar accident in December 2001. Dr Lazaridis ordered x-rays of the neck and shoulders and an ultrasound of the shoulders.[15]
[15]Exhibit 6
32 The ultrasound of the shoulders performed on 11 June 2002 reported that:
“There is quite a large partial tear of the right supraspinatus close to the greater tuberosity. The superficial fibres appear intact. The other tendons appear satisfactory. The left shoulder showed no rotator cuff abnormality.”[16]
[16]CB 26
33 Dr Lazaridis, following the report of the ultrasound and x-ray results, examined the plaintiff on 17 June 2002. Dr Lazaridis’ evidence was that she discussed in detail the right shoulder injury with the plaintiff and referred her to see orthopaedic surgeon, Mr Weber. The plaintiff was also referred to Philippa Baxter, physiotherapist, for further physiotherapy treatment. The plaintiff did not attend upon Mr Weber following the referral dated 17 June 2002.[17]
[17]T 154
34 The plaintiff then attended upon Dr Lazaridis in respect of right shoulder complaints on 31 May 2004, after she had fallen from a horse.[18] On that occasion, Dr Lazaridis prescribe Nurofen and gel for a soft-tissue injury to the right groin and thigh of the plaintiff. On 5 November 2004, the plaintiff attended for unrelated throat and pharyngitis complaints. She also complained at that time of her right shoulder injury.[19]
[18]T 153
[19]T 153, 154
35 Dr Lazaridis then gave evidence that she examined the plaintiff on 8 December 2004. As a result of that consultation, Dr Lazaridis referred the plaintiff to Mr Weber again. The actual referral is dated 19 January 2005.[20]
[20]T 154
36 The plaintiff then attended on Dr Lazaridis on 28 October 2005 complaining of chronic right shoulder pain. The plaintiff had been receiving treatment from the physiotherapist, Philippa Baxter.[21]
[21]T 156
37 The plaintiff underwent surgery at the hands of Mr Weber for her right shoulder on 24 January 2006. She was reviewed and seen by Dr Lazaridis on 7 April 2006 in a follow-up to the shoulder surgery.[22]
[22]T 157
38 Dr Lazaridis next saw the plaintiff in September 2008 for bilateral shoulder complaints.[23]
[23]T 157 and Exhibit 6
39 Dr Lazaridis’ final consultation with the plaintiff in respect to her right shoulder injury was on 12 December 2011.[24] At that visit, Dr Lazaridis referred the plaintiff to Dr Huguenin, a sports physician. Dr Lazaridis also referred the plaintiff to Dr Paul Verrills, musculoskeletal physician, of the Metro Spinal Clinic for diagnosis of facetogenic pain/Complex Regional Pain Syndrome.
[24]Exhibit 6
40 The plaintiff suffered a fractured right wrist on 12 February 2008. Dr Lazaridis was not involved in the treatment of that injury. The right wrist injury occurred when the plaintiff fell from a horse.
41 In her report dated 24 April 2012, Dr Lazaridis stated that she had been consulted on 12 December 2011 and nominated that the previous consultation was 7 April 2006 in relation to shoulder injuries. This was an error on behalf of Dr Lazaridis, as it was clear after cross-examination of her that the last previous consultation was in September 2008, some seven months after the fractured right wrist of the plaintiff.
42 Dr Lazaridis agreed with the proposition that the plaintiff had received little treatment from her immediately after the accident and that in November 2004, there was a period at the commencement of 2006 where there was more concentrated treatment. After that period of time, there was pretty much no further ongoing treatment.[25] Dr Lazaridis stated, in terms of the cause of the right shoulder injury, that:
“There was absolute complete chronological documentation relating to the motor vehicle accident. I don’t have any other injury.”[26]
[25]T 158
[26]T 162, L4-6
43 Dr Lazaridis gave evidence that the plaintiff was prescribed Tramal and Voltaren as medication in 2006. She stated that nothing had been prescribed for pain relief to the plaintiff since that time.[27]
[27]T 162, L1-5
44 In summary, Dr Lazaridis has provided the plaintiff with sporadic treatment as a general practitioner for her right shoulder complaint over the ten-and-a-half years since the accident. The latest direction of her treatment has been to Dr Leesa Huguenin, sports physician, to investigate cervical and thoracic potential injury for the plaintiff. Dr Lazaridis then referred the plaintiff to Dr Paul Verrills to investigate and manage the plaintiff for facetogenic pain and Complex Regional Pain Syndrome.[28]
[28]CB 37.1
Mr Andrew Weber
45 Mr Andrew Weber, orthopaedic surgeon, reviewed and treated the plaintiff on a referral from Dr Lazaridis. In this application, the plaintiff relied upon reports from Mr Andrew Weber, dated 1 February 2005, 23 February 2005, 7 November 2005, 24 January 2006, 7 February 2006, 6 March 2006, 22 June 2006, 28 May 2007 and 6 October 2007. Mr Weber was required for cross-examination by the defendant. Mr Weber operated on the plaintiff’s right shoulder on 24 January 2006. Mr Weber had diagnosed an unstable right shoulder with SLAP lesion and capsular laxity. The operation procedure was set out in the operation note which appeared at Court Book 50. Mr Weber continued to review the plaintiff from the time of the operation until 15 June 2006. At that time, he noted that the plaintiff was doing well. The plaintiff was back riding horses and had no complaints. On examination that day, he noted there was a slight limitation of abduction of the right shoulder and internal rotation, suggesting some residual posterior capsulitis. The plaintiff advised Mr Weber that she was contemplating doing competitive mogul skiing in the Australian winter. Mr Weber advised her against this course.[29]
[29]CB 58
46 Mr Weber subsequently reviewed the plaintiff on 28 May 2007. At that time, he had received notification from the defendant that the plaintiff had reported to Stephen Doig, orthopaedic surgeon, that “the scope helped her a bit but not really all that much”. At the time of this review, Mr Weber had been advised that the plaintiff had been on a three-month ski trip to Lake Tahoe in the United States.
47 On examination on 28 May 2007, Mr Weber found that the plaintiff had altered dynamics with abduction but did have a full range of movement in her right shoulder. The plaintiff was weak with abduction and external rotation on the right side.[30] In his report dated 6 October 2007, Mr Weber stated:
“On that day [28 May 2007], I considered Miss McGavin lacked the superior labral signs that she had previously, but still appeared to have some irritability around her shoulders. She was still weak in the shoulder. Certainly I agreed that there was no further indication for surgery, but I suggested she needed to continue with her strengthening program using a theraband resistance regime, 3 times a day, not once, and to avoid any provocative activities including horses. She then went on to tell me it hurt blow drying her hair.”[31]
[30]CB 58
[31]CB 59
48 Mr Weber then referred the plaintiff to Dr Taverner, pain medicine specialist, for the purposes of pain management referral. The plaintiff did not attend Dr Taverner for that treatment.
49 Mr Weber, in assessing the plaintiff’s capacity for present and future work, stated as follows:
“Miss McGavin’s pain at time[s] is somewhat difficult to explain. She can ski to apparently a high level and ride horses, yet relates pain blow drying her hair. Objectively she has a full range of movement and a stable shoulder, and considering the activities she has been completing, I would have thought she should have the capacity for work, if she can overcome her unusual pain symptomatology.”[32]
[32]CB 59
50 Mr Weber gave evidence in this application. In the course of his evidence, he explained the O’Brien’s Test as follows:
“O'Brien's Test - I get asked by trainees and physios of the value of O'Brien's, and similarly I - I'd emphasise that it's no good alone; it's used in conjunction. But it's a test of - a force against resistance with a hand, like thumb down or palm up. It is useful in a superior labral tear of the shoulder, but it's also positive in AC - acromioclavicular joint pain.”[33]
[33]T 183, L18-24
51 Mr Weber gave evidence that he used the O’Brien’s Test in combination with a number of other examination tests to determine and diagnose the condition of the plaintiff’s right shoulder. He said that the O’Brien’s Test on its own was not indicative of any particular condition relating to the plaintiff.
52 Mr Weber gave evidence that he was unable to explain the cause of the plaintiff’s pain. His evidence was as follows:
“ As a specialist in shoulder surgery, I was referred the shoulder and I was focused on her shoulder so I didn't assess her other joints. The tenderness to palpation was poorly localised so one wouldn't expect with a subtle instability and as such, as the pain was poorly localised, I had suggested that, as I couldn't completely explain it, that it had more of the vagueness of a fibromyalgia type picture.”
MR TOBIN SC:
Q:“With the pain itself that you did consider in your assessment of the patient, did you have any concern as to whether or not there was or wasn't pain?---
A:That is a difficult question. I was content there was pain. My dilemma was explaining it.”[34]
[34]T 185, L3-15
53 Mr Weber stated that the plaintiff was anxious to get back to full activity after the surgery to her right shoulder. He stated:
“Oh, Erin in those days was trying to get going a lot quicker than I was happy with and she'd done a little bit of anatomy and she was bartering, trying to let me relax the restrictions a bit quicker and I was trying to slow her down a bit.”[35]
[35]T 188, L24-28
54 Mr Weber was cross-examined about the cause of the injury to the plaintiff’s right shoulder and the ongoing pain and symptoms that the plaintiff complained about. He gave the following evidence:
A:“A superior labral tear would usually happen in that position. One could not say that that couldn't happen in a car accident but it's a little unusual. Does that answer the question?[36]
[36]T 190, L22-25
…
A: I was speaking about pain that I couldn't completely explain.[37]
…
Q:With that pain, you expressed the opinion she could go back to employment, she had a capacity for work, would you have expected her to have difficulty with activities outside work or activities within work although still working with that pain?---
A:I was perplexed that somebody could ski for months and could ride horses yet couldn't dry their hair, I couldn't explain that and hence I said that if she could overcome the pain by the pain management because I couldn't find an organic basis for it then I thought she would have been capable of work.[38]
…
A:Pain is a subject sensation which I can't measure. I couldn't explain her pain, necessarily explain it following a classical organic pathology and pattern. When I'm seeing a patient I give them the benefit of the doubt. They're getting the pain, that might be organic, that might be subconscious but when one has pain for a while the brain can keep that going. I couldn’t explain it. I was trying to help her rather than necessarily getting hung up on the explanation.”[39]
[37]T 191, L15, 16
[38]T 191, L21-30
[39]T 192, L7-15
55 Mr Weber gave evidence that he was unable to understand that the plaintiff had returned to skiing and horse riding but could not explain the difficulties she complained about with drying her hair. He said that he would expect drying one’s hair was a lot easier than riding a horse or skiing mogul.[40]
[40]T 207, L17-27
56 Mr Weber gave evidence in respect of the pain suffered by the plaintiff, stating that a little bit of inflammation would not produce large amounts of symptoms and he was only able to find a small amount of inflammation on the objective signs.[41]
[41]T 209, L25-29
57 Mr Weber stated that the plaintiff had a Pain Syndrome but he did not use the word “psychological” to explain it.[42]
[42]T 210, L25-26
58 In his evidence, Mr Weber confirmed that in May 2007, on examination, the plaintiff had a full range of movement in her right shoulder.[43]
[43]T 212, L18-19
59 Mr Weber then gave the following evidence on his diagnosis for the cause of the pain in the plaintiff’s right shoulder:
Q:“Have you diagnosed the cause of the pain?---
A:Other than the little bit inflammation I've suggested, no.
Q:If the pain is there and has been there since this accident in 2011 (sic)---?---
A:Sorry, ’11?”
HIS HONOUR:
“2001.”
MR MIDDLETON:
Q:“2001, sorry. Been there for 11 years, or 10 and a half years, are you able to give any idea as to how long it's likely to persist?---
A:When I can't explain the pain now, sir, I can't explain how long it's going to last.”[44]
Q:Well, assuming she had in 2001 'til 2002?---
A:I always give the patient the benefit of the doubt. All I could explain was possibly an element of a Chronic Pain Syndrome and the brain remembers the pain and it perpetuates it.”[45]
Q:Yes. That's me?---
A:With all due respect, the brain is an amazing structure that - the way I explain it is that if you have pain for a long time, the brain can get that indelible texture out and paint the grey matter and it's very hard to get rid of. The brain can act as an amplifier and turn up the knob and our modalities of dealing with that power is turning down that amplifier volume. So that's what I'm saying. I don't fully understand it, I'm an orthopaedic surgeon, but that's how I explain chronic pain. The brain just remembers it and it's hard to get rid of. You know, it can start - it can start with organic pathology and the organic pathology can settle and you still have the pain.”[46]
[44]T 214, L5-14
[45]T 214, L27-30
[46]T 215, L8-20
60 In conclusion, I find that Mr Weber was unable to determine a physical cause for the ongoing pain that the plaintiff complains of in her right shoulder. He has referred to it as a Pain Syndrome or an explanation of Chronic Pain Syndrome, which has taken over after the organic pathology has settled. Mr Weber was unable to explain that the small amount of inflammation he found within the plaintiff’s right shoulder in May of 2007 could produce the symptoms complained of by the plaintiff.
Dr Leesa Huguenin
61 Dr Huguenin saw the plaintiff on 7 February 2012. Dr Huguenin is a physician specialising in sports and exercise medicine. In her report dated 21 March 2012, Dr Huguenin stated that she was unable to examine the plaintiff’s shoulder fully for instability due to extreme positive neural tension tests on the right side. Dr Huguenin noted that the plaintiff had had a recent ultrasound, which presumably was in May of 2011, which displayed some bursitis in the right shoulder. Dr Huguenin took a history from the plaintiff of long-term pain and treatment from physiotherapists and osteotherapists. In her report, she states:
“The longevity of her pain and some of the aspects of her description of the pain made me think that she also had an element of Complex Regional Pain Syndrome and therefore I gave her a trial of Lyrica. If this was successful in alleviating the more widespread nature of her pain, I was hopeful that we would be able to make some inroads with more focal pathology over time.[47]
…
I was also concerned regarding her anxiety and fear avoidance due to pain and stated to her that this would need to be addressed in the short to medium term with pain psychology input.”[48]
[47]CB 60.2
[48]CB 60.2
62 Dr Huguenin noted that the MRI scan which she had ordered did not show any disc disease or any other specific pathology. The plaintiff was not able to tolerate Lyrica due to the side effects, and ceased taking it.
63 Dr Huguenin’s diagnosis was:
“My diagnosis at present is that Erin has both ongoing shoulder joint irritability, possibly related to capsulitis or low level instability, combined with cervicogenic and thoracic spine related pain which is creating referral into her shoulder region. I believe that she has an element of Complex Regional Pain Syndrome contributing to this and that there is some anxiety associated with her current condition.[49]
In the setting of Complex Regional Pain Syndrome, it is not unusual to have long term degrees of discomfort despite adequate treatment. I am not willing to make a comment Re: an estimate of her future medical treatment as we are still awaiting an opinion from a spinal specialist regarding whether she is suitable for specific intervention.”[50]
[49]CB 60.2
[50]CB 60.3
64 Dr Huguenin referred the plaintiff to Mr Paul Verrills for assessment and pain management by way of nerve blocks administered to the neck. There was no medical reporting from Dr Verrills in respect of any treatment or assessment by him of the plaintiff.
65 It is clear from the report of Dr Huguenin that she was of the opinion that a Complex Regional Pain Syndrome was contributing to the condition or symptoms described by the plaintiff. Dr Huguenin referred to the possible capsulitis or low level instability in the right shoulder being a cause of the pain to the plaintiff. Dr Huguenin has put it no higher than a possibility. In that regard, she is of the same opinion as the general practitioner, Dr Lazaridis, and the treating orthopaedic surgeon, Mr Weber, that unfortunately for the plaintiff, a Chronic Pain Syndrome or Complex Regional Pain Syndrome has or is a possible explanation for the symptoms complained of by the plaintiff in respect of her right shoulder.
The Medical Opinions
66 The plaintiff tendered and relied upon reports from Philippa Baxter, physiotherapist, and Joel Laing, physiotherapist. These reports set out the treatment regime that they participated in with the plaintiff. The last report from Mr Laing was 20 October 2007. The plaintiff also relied upon the physiotherapist’s report prepared by Michelle Blake, the last of which was dated 9 June 2006.
67 Dr Matthew Bateman, chiropractor, prepared a report dated 8 June 2011. He first examined the plaintiff on 16 April 2011 and stated that he was managing her chronic right shoulder pain, fibromyalgia and widespread allodynia affecting most of her body. He accepted the plaintiff’s history that her right shoulder pain was a result of a transport accident in 2001. Based on the history given to him by the plaintiff, Dr Bateman concluded that the pain symptoms in the plaintiff’s right shoulder were a direct result of the transport accident in 2001. Dr Bateman notes the results of the ultrasound to the right shoulder and concluded there was tendonitis and bursitis in that shoulder. [51]
[51]CB 63
68 In making the assessment for serious injury application, I prefer the evidence of the treating medical practitioners: Dr Lazaridis, general practitioner; Mr Weber, treating orthopaedic surgeon; and Dr Huguenin, sports physician. Dr Bateman, a qualified chiropractor, has come to the treatment of the plaintiff at a late stage. The plaintiff has had a number of falls from horses since the time of the transport accident and on one occasion resulting in a fracture to the right wrist. Dr Bateman does not bring the same level of expertise to the determination of the cause of the pain to the plaintiff as the other medical experts.
Mr John O’Brien
69 Mr John O’Brien, orthopaedic surgeon, has examined the plaintiff for the purposes of medico-legal reporting. Mr O’Brien prepared reports, dated 18 March 2008, 4 May 2011, 6 August 2011 and 20 March 2012. In his first report dated 18 March 2008, Mr O’Brien expressed the following opinion:
“Indeed, I could find no clinical evidence of persistent shoulder instability. Thus in relation to investigations and the surgeon’s operative report it is now difficult to be precise in relationship to the symptomatic pathology within the shoulder. Indeed this could potentially be within the glenohumeral joint or indeed some signs suggest the possibility of rotator cuff inflammation.
…
In general it would appear the patient has a mild disability with regard to general activities because of continuing shoulder problems.”[52]
[52]CB 67
70 Mr O’Brien then examined the plaintiff on 28 April 2011. It is to be noted that this is approximately one month prior to the surveillance shown in this application, which occurred on 29 May 2011.[53] In his report dated 4 May 2011, Mr O’Brien made the following observations:
[53]Exhibit 1
“The patient reported that the continuing use of a computer and sitting at a desk does in fact cause quite ‘excruciating’ pain over the anterior aspect of the right shoulder, which can extend to the elbow.
…
The patient stated that the pain is aggravated by the use of a computer, is aggravated by prolonged sitting at her desk, also driving, generally using the right arm, such as when doing the dishes or drying her hair.
…
Ms McGavin stated that she continues to work full time in an office environment. The patient stated that she does remain reasonably active and continues to horse ride, include show jumping some 3-4 times per week. In addition she does participate in competition show jumping.”[54]
[54]CB 71
71 Mr O’Brien gave his opinion as follows:
“The major concern is ongoing chronic shoulder pain, where there remains definite restriction of movement and a reasonable extensive lock tenderness. Indeed I believe that these signs are not specifically diagnostic but as previously indicated I would suggest that they indicate the ongoing presence of mild, persistent glenohumeral pathology, although there is currently in my opinion no evidence to suggest any persistent shoulder instability.”[55]
[55]CB 72
72 Mr O’Brien went on to say that he thought that the plaintiff had a moderate disability associated with her right non-dominant shoulder function but was not a person who would require any further surgical treatment.
73 Mr O’Brien, in his report dated 6 August 2011, after seeing the ultrasound performed in May 2011, stated his opinion as follows:
“Indeed, the patient, when examined, had no evidence of acute shoulder pathology as suggested in the ultrasound and I would consider given the history that local injection was not clinically indicated.”[56]
[56]CB 73.1
74 Mr O’Brien prepared a final report on this matter on 20 March 2012. He noted in the history that the plaintiff:
“This pain is described as being aggravated by driving, using a computer mouse with her right hand, and lifting any weight, even elevating the right arm to brush her hair or use her hair dryer.
…
At present, Ms McGavin stated that treatment is confined to approximately four Panadol tablets per day, plus some Pilates exercises which she does at home.
…
The patient indicated that she still does ride a horse, and competes in show jumping at a very low level.”[57]
[57]CB 73.3
75 On examination, Mr O’Brien found:
“There was described fairly generalized tenderness to palpation around the right shoulder, and indeed active movement against resistance did not appear to precipitate any specific pain.”[58]
[58]CB 73.3
76 Mr O’Brien concluded as follows:
“Physical signs indeed remain subjective with some variability in relationship to the limited movement associated with the right shoulder, in comparison to previous examination. Indeed, movements demonstrated in the course of the Activity Report certainly suggest that there is not an absolute restriction of right shoulder movement.”[59]
[59]CB 73.4\
77 Mr O’Brien again gave his opinion about the ultrasound in May of 2011, stating that the acute pathology that was found on that examination was not consistent with the overall clinical cause or indeed the current physical signs that he had noted in the plaintiff. Mr O’Brien noted as follows:
“There is however, I would suggest, some inconsistencies demonstrated on the activity report in relationship to her overall right shoulder function.”[60]
[60]CB 73.4
78 Mr O’Brien had the investigation report of Maurice Kerrigan, which he said was dated 31 June 2011, and referred to the surveillance of 29 May 2011. Mr O’Brien also had a DVD which was undated, so it was unclear from his report exactly what surveillance he viewed.
79 I find that Mr O’Brien expressed some reservation about the symptomology described by the plaintiff after having read the activity report. He was also unable to elicit on examination the pain after putting the plaintiff through active movement against resistance with her right shoulder. I find these two factors indicate that there is not sufficient evidence to connect a physical cause for the pain in the plaintiff’s right shoulder.
Dr William Glaser and Dr David Weissman
80 The plaintiff was sent to psychiatrists, Dr Glaser and Dr Weissman for medico-legal assessment for psychiatric injury. Dr Glaser reported on 12 December 2007. Dr Weissman reported on 17 June 2011. The application made by the plaintiff in this case is not under section 93(17)(c) , as in psychological or psychiatric long-term mental disorder. I note, however, that Dr Weissman formed the view that the plaintiff was stoical person who did not want to be a burden on others.[61]
[61]CB 94
81 I have had the advantage of seeing the plaintiff give evidence and being cross-examined during the course of that evidence. To my observation, the plaintiff did not exhibit the traits of someone who is of a stoical nature. That is not a criticism of her. It is an observation and assessment made by me as to her general personality and approach to the difficulty that she says she suffers from her right shoulder pain.
Mr Stephen Doig
82 The plaintiff was referred to Mr Stephen Doig, orthopaedic surgeon, by the defendant for medico-legal assessment. Mr Doig reported to the defendant on 5 March 2007. The plaintiff told Mr Doig that “the scope helped her a bit but not really all that much”.[62] The plaintiff gave a history to Mr Doig that she had nil past history of any significance. It is to be noted that the plaintiff had a fall from a horse in 1995 and this necessitated a trip to hospital which included an x-ray of her right shoulder.
[62]CB 97
83 After examination of the plaintiff, Mr Doig formed the opinion that the plaintiff had a significant ongoing problem. In his view, the plaintiff would need to be seen by a pain management program in order to help her to adjust to her symptoms and the effect of them. Mr Doig noted that the plaintiff had a marked restriction of internal rotation to right shoulder when compared with the left hand side, and that it was not getting any better.
84 I note that Mr Doig’s report is now some five years old and that the plaintiff has had a number of falls from a horse since that time. I have to make an assessment of the plaintiff’s condition as at this date and a report of such age is of little assistance.
Dr Kevin Fraser
85 The plaintiff was examined and reported on for medico-legal purposes by Dr Kevin Fraser, rheumatologist. Dr Fraser prepared four reports, dated 1 February 2011, 15 July 2011, 13 March 2012 and 15 May 2012. The plaintiff required Dr Fraser to attend for cross-examination.
86 In his report dated 1 February 2011, Dr Fraser took a history that:
“She says that she has difficulty with prolonged driving and has to rest her right arm on a pillow. She also has difficulty elevating the arm and cannot use a hairdryer. Her partner does all the heavy housework. However, she can ride a horse, albeit over lower jumps than she would ordinarily be doing and she was rather vague concerning whether it is competitive riding.”[63]
[63]CB 100
87 On examination, Dr Fraser found:
“Right shoulder movements were also somewhat restricted with pain at the extremes of the range, which was measured as follows: abduction/adduction 140o/20o, flexion/extension 140o/30o and internal/external rotation 45o/90o. There appeared to be significant guarding.
…
There appeared to some overreaction on physical examination.”[64]
[64]CB 100
88 Dr Fraser then examined the radiology and other opinions sent to him, and concludes as follows:
“Having considered all this in the light of the history which I obtained and the physical findings, I am not convinced that there is a physical basis for her ongoing symptoms. One can’t be certain that the SLAP tear and the borderline ligamentous laxity resulted from the motor vehicle accident, particularly as there is a history of previous shoulder trauma.
Furthermore, the inconsistencies noted by her treating orthopaedic surgeon, her emotional lability and the overreaction on physical examination leaves me to question the true extent of any physical incapacity.
It seems more likely that she may have a psychologically based chronic pain syndrome.”[65]
[65]CB 101
89 In his report dated 15 July 2011, Dr Fraser confirmed his opinion that the symptoms suffered by the plaintiff were psychologically-based Chronic Pain Syndrome.[66]
[66]CB 102
90 In his report dated 13 March 2012, Dr Fraser had viewed the DVD surveillance and the report dated 31 May 2011 from the investigators. He stated:
“These lead me to conclude that there is in fact no functional incapacity. Her ability to drive a motor vehicle and to ride a horse in a show jump time trial belies her complaints of chronic pain with activities such as prolonged driving, elevating her arm and inability to use a hair dryer. Although she admitted to riding a horse over lower jumps than she would ordinarily be doing, she was vague about whether it was competitive riding. Presumably the more recent observations leave no doubt in this regard.
In my view, if there was any ongoing organic basis for her symptoms she would be unable to perform the activities documented in the surveillance report, particularly riding a horse over jumps, as well as using her right arm in preparing the horse for riding and travel, let alone loading the horse into the trailer.
I reiterate that such activities belie her claimed functional incapacity.”[67]
[67]CB 103.1
91 In his final report dated 15 May 2012, Dr Fraser confirmed his previous opinions as follows:
“ … I indicated that I was not convinced that there was any physical basis for her ongoing neck and right shoulder girdle pain. I thought it more likely to be due to a psychologically based chronic pain syndrome.
…
… after viewing related DVD footage. In particular, her activities therein led me to conclude that there was no functional incapacity and were quite inconsistent with the clinical presentation when I examined her on 31 January 2011.”[68]
[68]CB 103.3
92 Dr Fraser then refers to the report of Dr Leesa Huguenin. He stated that having reviewed all of the evidence and the reference by Dr Huguenin to a suggestion of Complex Regional Pain Syndrome, that he thought non-organic factors were involved. He stated that he then considered that any further active intervention such as diagnostic blocks to her neck would only serve to reinforce her sense of invalidism.[69]
[69]CB 103.3
93 Dr Fraser gave evidence in this application. He was cross-examined strenuously by Mr Tobin, Senior Counsel for the plaintiff. The following exchange occurred during evidence.
MR TOBIN:
Q:“Drying her hair, sorry, yes. Can you give any explanation as to why those symptoms occur in those particular activities?---
A:I refer in numerous places in my reports the question of non-organic factors, and I don't really accept that activities such as using a mouse or using a hairdryer, or having difficulty with prolonged driving, can be credible given her ability to ride a horse - - -”[70]
…
HIS HONOUR: Continue?---I'm sorry?
Q:“I'm sorry doctor, you can continue with your answer?---
A:I don't accept that someone can have difficulties with those sorts of activities and ride a horse competitively, or participate in other winter sports such as she was doing.”[71]
[70]T 270, L12-19
[71]T 270, L27-31
94 Dr Fraser went on to answer as follows:
“Q:Any reason to say that she hasn't been riding with pain?---
A:I really think it's inconsistent her ability to ride a horse, even albeit with pain, and then to complain about pain with things such as using a computer mouse. I think that's nonsense.”[72]
[72]T 271, L9-13
95 Dr Fraser was then challenged about the results of the ultrasound of the plaintiff’s right shoulder dated 20 May 2011. The following evidence was given:
Q:“But an ultrasound on 20 May 2011 shows an acute supraspinatus tendonitis, bursitis, with associated impingement. Assuming ultrasounds to be accurate and taken three months subsequent to your examination, would you think that the pathology that causes those findings on the ultrasound would be a pathology that could cause pain to be experienced by this lady on certain activities?---
A:If she did have tendon bursitis it could do so but I'm just referring to my report of 15 July 2011 where I note that ultrasound that you're referring to on 19 May said to show ‘acute supraspinatus tendonitis bursitis and impingement.’ As I point out there, ultrasounds are notoriously unreliable but even if she did have such conditions I could not see how they could be related to the motor vehicle accident of 2001."[73]
[73]T 274, L3-17
96 Mr Tobin SC challenged Dr Fraser on his opinion that the cause of the plaintiff’s symptoms were either non-existent or functional. The following evidence took place:
Q:“You're expressed the opinion this lady's condition is either non-existent or functional or fibromyalgic, would that be correct?---
A:Well, what I said in my initial report that it seemed to me most likely that she may have a psychologically-based chronic pain syndrome and in fact that has been mentioned more recently by her own general practitioner as well.”[74]
[74]T 275, L7 – T 276, L2
97 It was clear from the evidence following this exchange that Dr Fraser accepted that the pain can be real and last for a long period time into the foreseeable future, but that it was not one that had an organic basis.
98 On the issue of fibromyalgia, Dr Fraser gave the following evidence:
Q:“Frequently it's a condition that's developed subsequent to a problem in that part of the body which causes a continuation of symptoms?---
A:There's a lot of controversy about whether or not - about the cause of fibromyalgia. And I did indicate to you previously that psychosocial factors are generally considered to be the main factor. It's not - some people would suggest that trauma can be a precipitant, but that's not universally accepted.
The reason that - I might say that I might say that I raised this question of fibromyalgia - it had already been raised by her treating orthopaedic surgeon, who suggested the possibility of fibromyalgia.”[75]
[75]T 278, L23 – T 279, L3
99 Dr Fraser gave evidence that he thought it most likely that the plaintiff had a psychologically-based Chronic Pain Syndrome. He said that he could imagine all sorts of possibilities that could lead to a psychologically-based Chronic Pain Syndrome in her case.[76]
[76]T 279
100 Dr Fraser was of the opinion that no further active physical intervention or investigation was required for the plaintiff. He stated as follows:
“No, the initial treatment back, originally, was appropriate. But with the passage of time it's become apparent that there is no, if you like, organic basis for this problem, there is no percentage[sic] in persisting with further investigation and further active intervention very often only perpetuates the symptoms.”[77]
[77]T 285, L4-10
101 Finally, Dr Fraser’s evidence in respect of the connection between the complaint of pain by the plaintiff and the cause of that pain was as follows:
Q:“This lady you agree is atypical in that she is doing a wide range of activities with a level of complaint of pain?---
A:And it's that atypical character of the presentation which makes one concerned about the possibility of non-organic factors are paramount.
Q:But not that the symptoms don't exist and not that they won't persist but you can't explain in your understanding of the organics of the shoulder why she has had these persistent symptoms for so long and will continue to have them?---
A:I don't about [scil, doubt she] will continue to have them but it's – there's certainly no physical explanation in my mind as to her persistent symptoms.”[78]
[78]T 288, L5-16
102 Mr Tobin SC attacked the credit of Dr Fraser on the basis that he was a “defendant’s doctor”. Dr Fraser explained that only a third of his practice was related to medico-legal work. He stated that the other two-thirds of his practice related to treatment of patients. He said that he was open to referrals from plaintiffs’ or defendants’ solicitors. He stated he was giving independent opinion evidence. I accept that Dr Fraser is giving independent evidence in this case.
103 I conclude, on the basis of all the medical evidence, that the plaintiff’s complaints of pain are not related to a physically-based cause as found by Dr Lazaridis, Mr Weber and Dr Fraser and, in part, Mr O’Brien.
104 There was no evidence in this application directed to a finding that the cause of the pain is Complex Regional Pain Syndrome or a Chronic Pain Syndrome. The plaintiff has brought her application on the basis of a section 93(17)(a) application; i.e. a physical cause for her symptoms. The medical evidence does not support her in that regard.
105 The authority of Richards v Wylie[79] does not assist the plaintiff in this regard because without the physical cause for the plaintiff’s symptoms, the psychological impact of the pain and symptoms cannot be considered in a part (a) application.
[79]supra
DVD Surveillance dated 29 May 2011
106 A court has to be wary and careful not to place too much emphasis and acceptance of what might be shown in a surveillance film of a plaintiff in this case. The plaintiff, in the main, freely admitted that she was back riding horses and participating in competitive show jumping. The DVD surveillance clearly showed the plaintiff being able to engage in show jumping activities, riding, adjusting the saddle, adjusting the blanket on the horse, and lifting the tailgate of the float. All of these activities involved the free use of her right shoulder and arm. At the end of the horse jumping or hurdle jumping activities, the plaintiff reached forward and patted the horse on the near side in an “O’Brien’s Test” style action. This involved the plaintiff extending forward and upwards in order to reach the horse in that manner. The plaintiff was able to freely manage and ride the horse in the show jumping competition.
107 Some of the surveillance film showed the plaintiff at a later time in the day where she was handling the horse, in the sense of putting a bridle on and taking it off. The plaintiff was adjusting the saddle and the horse blanket as part of the activities performed with her right and left arm.
108 The activities shown to be performed by the plaintiff in the surveillance film were completely at odds with her complaints that she could not use a hair dryer or mouse at a desk without suffering from excruciating pain. The medical evidence, both of Mr Weber and Dr Fraser, support that proposition. It is to be noted that Mr Weber never has seen the DVD surveillance. Mr Weber’s evidence is based on the plaintiff’s history of snow skiing, either moguls or black runs, and riding horses as described by the plaintiff to him.
109 The plaintiff, in her evidence, stated that she could not say whether or not her shoulder was taped on that day.[80] This is in distinction to her evidence in affidavit form that she said that she had to strap her shoulder before all competition.
[80]T 72
110 I find, on the basis of the DVD, that in May of 2011, the plaintiff was able to freely ride and show jump her horse, and also was able to drive and manipulate the steering wheel of the car that was towing the float, albeit over a short distance, in order to realign the float for loading the horse.
Evidence from Other Witnesses
Ms Dianne McGavin
111 Dianne McGavin is the plaintiff’s mother. Mrs McGavin was at the horse jumping competition shown in the DVD surveillance for 29 May 2011. Mrs McGavin swore an affidavit, dated 13 August 2011, in support of the plaintiff’s application for serious injury. Mrs McGavin also gave evidence in the hearing of the application.
112 In her affidavit, Mrs McGavin confirms that the plaintiff wanted to make a career out of horse riding and to horse ride overseas.[81] She stated that the plaintiff had trouble sleeping due to pain in her right shoulder. Mrs McGavin stated that she provided Nurofen to the plaintiff before and after riding events for pain relief.[82] Mrs McGavin also states the plaintiff wanted to be a massage therapist but was unable to continue in that work due to the right shoulder injury.[83]
[81]CB 25.2 at paragraph [3]
[82]CB 25.2 at paragraph [5]
[83]CB 25.3 at paragraph [14]
113 Mrs McGavin gave evidence on 18 May and 21 May 2012. Mrs McGavin confirmed the matters set out in her affidavits. I find that Mrs McGavin was, understandably, putting the best interpretation on her observations of the plaintiff to support the serious injury application.
114 An example of this type of evidence was in re-examination, as follows:
Q:“Your daughter still rides and you say she takes medication. Has she said why or have you observed why she continues to ride when she needs medication to do it?---
A:It’s her great passion in life. It’s all she’s ever been really interested in is riding and that’s why she struggles on with it despite the fact that it causes her a great deal of pain.
Q:My learned friend asked you questions about how your daughter was, post accident and on Friday at Transcript 177 you said that she was in bed for a couple of weeks after the accident. Was she continuously in bed or was she able to get out of bed for toileting and do occasional things, see doctors and things like that or was she continuously in bed for that two weeks?---
A:Perhaps I was a little too wishful in my answer. Yes, she did get out of bed to go to the toilet and showers and obviously she attended medical appointments.”[84]
[84]T 254, L25 – T 255, L10
115 The plaintiff did not give evidence of taking medication before and after riding on every occasion so that she could tolerate the pain. The evidence of Mrs McGavin is exaggerated in her description of the symptoms and limitations suffered by the plaintiff.
Ms Bree Payne
116 Bree Payne swore an affidavit on 24 January 2011 in support of the plaintiff’s application for serious injury. Ms Payne was not required for cross-examination by the defendant.
117 The majority of the evidence from Ms Payne deposes that the plaintiff was a very good rider prior to the transport accident. Ms Payne states that the plaintiff had the potential to ride in Europe.[85] The plaintiff’s case is based on the pain and suffering consequences of her injury. Ms Payne’s evidence supports the plaintiff, in the sense that the plaintiff has lost a potential opportunity to ride, coach and produce in Europe. The lost opportunity assumes that the plaintiff would have completed and worked at the highest levels of horse riding in Europe. I do not accept that was a reality for the plaintiff. The plaintiff herself described it as “a dream”.
[85]CB 17, at paragraph [6]
Mr David Lever
118 David Lever has sworn two affidavits, dated 12 May 2011 and 5 May 2012, in support of the plaintiff’s application for serious injury.
119 Mr Lever’s evidence is predominantly directed to the issue of the plaintiff being unable to pursue a career as a professional competition rider, coach and producing (buying, training and selling horses). Mr Lever noted the plaintiff still rode in competitions but was limited due to her shoulder injury. In this application, this evidence is of little value because the plaintiff is seeking a certification for serious injury based on pain and suffering consequences. The relevant consequence in this regard is that the plaintiff is now limited in the standard of riding she can achieve due to the pain and restrictions in her right shoulder.
120 Mr Lever has seen the surveillance film shown in this application. He has seen and agrees with the “expert opinion” of Colleen Kelly. I deal with Ms Kelly’s evidence and expert evidence later in these Reasons for Judgment.
121 I conclude that Mr Lever’s evidence is generally supportive of the plaintiff’s application for serious injury. I am not satisfied that the limitations he deposes to are significant enough to prove the plaintiff has suffered a serious injury as defined in the Act.
Mr Scott Williams
122 Scott Williams swore an affidavit on 19 March 2012. He was not required for cross-examination by the defendant. Mr Williams deposed to the fact that the plaintiff was unable to continue as a massage therapist due to the pain in her right shoulder. The plaintiff has worked in a completely different field of work since the time she worked for Mr Williams. This application is based on pain and suffering consequences and hence this evidence adds little to support the plaintiff’s case.
Consequences of the Right Shoulder Injury to the Plaintiff
Horse Riding and Show Jumping
123 The plaintiff’s case is that her ability to ride a horse and show jump at a high standard has been denied to her as a result of the shoulder injury. As previously noted, the plaintiff still competes in show jumping. She relies on the evidence of Bree Wakefield and David Lever, combined with Colleen Kelly, to establish that she would have been a person who was able to compete in Europe in show jumping but for the injury received in the transport accident in December 2001. I will return to Ms Kelly’s evidence later on in these reasons.
124 I do not accept that someone who had reached Grade 2 at pony club level at the age of eighteen was on the cusp of being an Olympic rider or someone in a position to compete on the European circuit at the highest level. As the plaintiff herself said in her evidence, “I can dream”.[86] I find that the dream held by the plaintiff, whilst it may be an admirable one, was far from reality for her at the time of the motor vehicle accident in December 2001.
[86]T 84, L10
125 The plaintiff in this case has continued to ride her horses as much as three and four days a week since the time of her initial recuperation from the operation in 2006. She currently owns and rides two horses[87] and competes in show jumping competitions.
[87]T 65
Snow Skiing
126 The plaintiff has continued to snow ski. Between the accident in December 2001 and the operation in January 2006, and between the operation to her shoulder in 2006 and the right wrist injury in 2008, and from the time of the right wrist injury until the current time, the plaintiff has continued snow skiing. Her evidence was that she participated in snow skiing on what was referred to as “black runs”. The snow skiing has taken place in the United States at Lake Tahoe, and Australia.
Study
127 Since the time of the accident, the plaintiff has completed a course of study in Pilates and in massage in 2002. She has subsequently returned to study in business and sports management in 2004 and graduated in the middle of 2007. To her credit, the plaintiff has been basically employed in a full-time capacity either as a masseur, Pilates teacher or, more recently, in sales and management of sporting events. Her current employment involves sales with rural supplies.
128 The plaintiff complains of suffering pain whilst using a mouse and the computer. However, in her evidence, she stated that she has found a way to limit any such pain. In her evidence, she said:
Q:“What have you done to accommodate it?---
A:Um, I got rid of it. I set up a laptop in front of a big screen so I can use the small pad to keep my elbow in by my side and just use the - the hand-touch pad on the laptop.
Q:When you do activities with your elbow in by your side, do those activities have the same influence on your symptoms as activities as you describe using a mouse?---
A:The - no.”[88]
[88]T 103, L 21-27
Travel
129 The plaintiff has travelled extensively since her injury in 2001. In 2003/2004, the plaintiff travelled to New Zealand and went on a ski trip.[89]
[89]T 51
130 After her surgery in early 2006, the plaintiff travelled to the United States in March and September of 2007. In January 2007, the plaintiff was in Canada.[90] In March of 2008, the plaintiff travelled to the United States again. Whilst there, she travelled to Costa Rica in Central America in May of 2008. The plaintiff returned to Australia in May 2008.[91]
[90]T 79
[91]T 56
131 In August of 2009, the plaintiff then travelled back to the United States and remained there for a year. During that time, her evidence was that she rode horses and snow skied. In September of 2011, she travelled to the United States and married her husband there. Subsequent to that, she travelled to Japan for a period of two weeks in December 2011 to January 2012.[92]
[92]T 66
132 In summary, the plaintiff has engaged in an extensive amount of international travel during the course of the time that she is complaining of this right shoulder symptomology with pain. The alleged pain in her right shoulder has not impacted on her ability to travel overseas and partake in snow skiing opportunities presented there.
Sky Diving/Sport
133 The plaintiff, on one occasion in December 2005, went sky diving.[93] The plaintiff, in her evidence, stated that she did that before her shoulder operation because she did not know if she would be able to do it after the operation.
[93]T 79
134 The plaintiff has also engaged in touch football and soccer in a lesser capacity since the accident. She stated there was limited opportunity to engage in such sports. Nevertheless, the plaintiff has partaken of both touch football and soccer since the time of the accident. I find the plaintiff would not partake in sport with potential for contact if the injury to her shoulder was giving her the level of pain complained of.
Other Accidents/Incidents
135 The plaintiff was involved in a fall of a horse on 1 May 2004 where she attended Dr Lazaridis.[94] On 27 October 2005, the plaintiff complained to Ms Blake that she had fallen off a horse which aggravated her shoulder pain.[95] In August of 2007, the plaintiff had a ski accident.[96] In March of 2008, the plaintiff had a right wrist injury, causing a fracture.[97]
[94]T 61
[95]T 54
[96]T 55
[97]T 56 and T 47
136 This evidence indicates that the plaintiff is prepared to continue with fairly strenuous activities of snow skiing and horse riding, regardless of intervening incidents and accidents from the time of the transport accident. I conclude from this that it is difficult to isolate exactly what consequences flow in terms of the sporting activities that the plaintiff is deprived of pursuing, given the intervening incidents generally take place when the plaintiff is engaged in sporting activities.
Activities of Daily Living
137 The plaintiff has given evidence in her affidavits that she is unable to perform normal daily activities. She states that she is unable to do the heavy part of housework and is unable to mow the lawns. It is difficult to reconcile someone who can be involved in downhill skiing and riding horses and show jumping and all the attendant activities involved with that, being unable to perform simple household tasks of vacuuming, cleaning and cooking and the like. I do not accept that the plaintiff is limited in her activities of daily living as a result of the injury to her right shoulder in the transport accident in 2001.
Medication
138 In the course of the evidence, the plaintiff has been prescribed Voltaren and Tramal. The plaintiff has not been prescribed any medication since 2006 by a general practitioner.[98] The plaintiff gave evidence that she takes Panadol for pain relief.
[98]T 164
Conclusion
139 I find that when considering all of the consequences that the plaintiff complains of as a result of the injury to her right shoulder in the transport accident of 2001, that those consequences, when compared with a range of consequences when considered as a whole and collectively, do not satisfy the test for being very considerable and more than marked or significant. I find that the plaintiff’s capacity to partake in full-time employment in her current position and be involved in horse riding and show jumping and snow skiing indicate that she has not made the requisite case for consequences to satisfy the test required under the Act.
Expert Evidence
140 In this case, the plaintiff relied on expert evidence of Colleen Kelly. The plaintiff put forward Ms Kelly as an expert in biomechanics and horse riding.
141 The basis of a Court receiving expert opinion evidence is s.79 of the Evidence Act 2008. It reads as follows:
“79 Exception—opinions based on specialised knowledge
(1)If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.”
142 It is not disputed that the various experts who express opinions to a court have “specialised knowledge” or that such knowledge is based on their training, study or expertise. It is an issue that some aspects of expert opinions expressed cannot be said to be wholly or substantially based on “specialised knowledge”. It may be based on reference to experience, rather than training or study.[99] I find that this issue arises in the context of Ms Kelly being described as an expert in the field of horse riding and biomechanics.
[99]R v Hien Puoc Tang [2006] NSWCCA 167 at 134
143 In order to allow opinion evidence which is substantially based on specialist knowledge and not just merely an analysis of fact, “a transparent process of reasoning is ordinarily necessary to demonstrate the basis of the opinion. Without it, opinions so expressed are inadmissible expressions of personal views, speculation, common sense and the like”.[100]
[100]Gunnersen v Henwood [2011] VSC 440 at 63
144 Colleen Kelly was called for cross-examination on the second day of the hearing. Ms Kelly’s “expert witness report” appeared at pages 142.1 to 142.8 of the Court Book. It was not apparent from the report prepared by Ms Kelly what was her field of expertise. Mr Tobin SC, in submissions for the plaintiff, stated that Ms Kelly had demonstrated a high level of proficiency in the field of horse riding and, “and how you should sit on a horse and matters of that nature”.[101]
[101]T 358
145 I found Ms Kelly’s evidence, and her lack of expertise relevant to this application, unhelpful and unnecessary.
146 Ms Kelly completed her secondary education in 1977 at Grade 11 level in Queensland. She enrolled as a mature age entry to Deakin University studying psychology. She did not finish that degree.[102] In evidence, she agreed she did not have a qualification to lecture as a biomechanical lecturer, but that she did so in universities all over the world.[103] Ms Kelly told the Court that she had 30,000 people on her “fan list”.[104]
[102]T 218
[103]T 220
[104]T 222
147 Ms Kelly gave evidence which was well outside any recognisable field of opinion about how to “sit on a horse”. In her report under the heading “Summary”, she stated:
“I believe it may be difficult for the lay person to understand this kind of injury. To describe it in the simplest terms: the shoulder is like a network of cables. Each cable has its own set of nerves and ‘electricity’, and each cable functions individually from another. These kinds of injuries seem so unusual to the observer. While the person appears totally pain-free and little impact in terms of stiffness or loss of mobility, only seconds later, at a specific angle, the person is barely able to lift a teacup without literally dropping it in excruciating pain. This is an injury that I have seen in riders will often cause depression and lack of commitment, as the person can’t understand it, can’t control it, and no-one seems to understand their pain.”[105]
[105]CB 142.7
148 This is clearly an attempt by Ms Kelly to give evidence of a medical nature for which she has no training or expertise. Not satisfied with this excursion into a field of medicine, she stated in her evidence, “The O’Brien’s Test is very common”.[106] Ms Kelly went on to opine that a positive “O’Brien’s Test” would explain the plaintiff going from pain free to excruciating pain.[107] Ms Kelly demonstrated in Court the exact arm movement that constituted “the O’Brien’s Test” as she understood it.[108]
[106]T 227
[107]T 228
[108]T 228, L27 – T 229, L 17
149 Ms Kelly was shown the DVD surveillance film of the plaintiff show jumping her horse in May of 2011. Ms Kelly had previously “conducted a highly detailed study” of the same film.[109] I directed Ms Kelly’s attention to movement made by the plaintiff with her right arm and shoulder in patting the horse on the near side while still riding the horse. On the description and demonstration of Ms Kelly of the O’Brien’s Test given earlier in the hearing, the action of the plaintiff in patting the horse was the same. After seeing the DVD in Court, the following evidence was given by Ms Kelly:
[109]CB 142.7
HIS HONOUR:
Q:“Thanks, Ms Kelly. Just at the end there, Ms Kelly, did you see that motion with the right arm?---
A:I beg your pardon?---
Q:Did you see that motion with the right arm at - - -?---
A:At the very end when she waved with the left hand, was it?
Q:No, with the right arm I asked you?---
A:I don't know which part of it you're referring to.
Q:She's riding a horse and she puts her hand across like that and pats it on the near side. Did you see that or not?---
A:Yes.
Q:That's what I'm asking you about?---
A:I wasn't particularly looking at that just then, I'm - - -
Q:That's all right?---
A:I'm so sorry.
Q:Thanks?---
A:But even then that's not anything like an O'Brien's test. O'Brien's test is very high and that's just down there, just low. That's certainly not going to cause pain.”[110]
[110]T 241, L18 – T 242, L3
150 I find Ms Kelly’s evidence was an unnecessary distraction from the real issues in this case. It was of no assistance to the plaintiff’s application for serious injury. Mr Tobin SC submitted:
“Your Honour has to judge it from that as to whether it’s - the case is not dependent upon Mrs Kelly in any way. Your Honour, but it’s an informed view of what that riding looks like.”[111]
[111]T 362, L16-19
151 In Petkovski v Galletti,[112] Brooking JA said a long time ago:
“A lamentable situation has been reached with these applications under s.93 of the Transport Accident Act 1986, where the applicant tries to satisfy the court that a serious injury has been sustained. They are taking up to five days to hear and sometimes a good deal of oral evidence is given.”[113]
[112][1994] 1 VR 436
[113]at 437
152 It seems in almost twenty years nothing has changed. Ultimately the evidence that Ms Kelly sought to give was not going to any fact in issue in this application by the plaintiff for serious injury. It may be relevant in a damages claim on the question of loss of earnings.
153 I make these comments about the evidence of Ms Kelly to clearly identify that her role in this application by the plaintiff had no impact on the ultimate finding. It is unfortunate that evidence of this type was led in the serious injury application.
Conclusion
154 On the basis of the findings I have made in respect of the application by the plaintiff in this case, I dismiss her application for leave to bring proceedings for serious injury arising out of the transport accident on 20 December 2001.
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