Moffat v Ramsey Health Care Australia Pty Ltd
[2012] VCC 628
•13 March 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT WANGARATTA
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-00398
| MARY KAYE MOFFAT | Plaintiff |
| v | |
| RAMSEY HEALTH CARE AUSTRALIA PTY LTD | Defendant |
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JUDGE: | His Honour Judge Carmody | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 5 March 2012 | |
DATE OF JUDGMENT: | 13 March 2012 | |
CASE MAY BE CITED AS: | Moffat v Ramsey Health Care Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 628 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury
LEGISLATION CITED – Accident Compensation Act 1985
CASES CITED –
JUDGMENT –
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T.S. Monti Mr G. Pierorazio | Nevine Lenne & Gross |
| For the Defendant | Mr W.R. Middleton Ms R.L. Kaye | Wisewould Mahony Lawyers |
HIS HONOUR:
1 By Originating Motion dated 8 February 2011 the plaintiff seeks leave pursuant to s.134AB of the Accident Compensation Act (1985) (the ‘Act’) to bring proceedings at common law for damages for pain and suffering only which resulted from an injury to her right shoulder on 12 September 2008 in the course of her employment with the defendant. The impairment or loss of body function is the right shoulder affecting the plaintiff's right arm. The parties prepared a joint court book. This practice is to be encouraged and shows an appropriate level of cooperation between the parties in this litigious setting.
2 The issues in this application identified by Mr Middleton SC for the defendant were the credit of the plaintiff and that this was what he referred to as a range case. The first issue, that is the credit of the plaintiff, reflects of course on the second issue in respect of the range of level of serious injury that this plaintiff has suffered as a result of the accident. The issue of credit of course affects the making of an assessment of the consequences of the right shoulder injury to the plaintiff.
3 Statutory Scheme. The application is brought under the definition of serious injury contained in sub-s.(37)(a) of s.134AB of the Act, which requires the plaintiff to prove that she has suffered a permanent serious impairment or loss of body function.
4 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has suffered a compensable injury, that is an injury which she suffered arising out of or in the course of her employment with the defendant on or after 20 October 1999.[1]
(b) The injury and the impairment must be permanent, that is permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c) The plaintiff bears the onus of proof to be determined on the balance of probabilities.
(d)Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering when judged by comparison with other cases in a range of possible impairments or loss of body function, may fairly be described as being more than “significant” or “marked” and as being at least “very considerable”.
(e)Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise.
(f)In conformity with Barwon Spinners I must identify the injury and the impairment said to be produced in consequence of the injury, whether the impairment is permanent, that is likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the very considerable test contained in sub-s.(38)(c). I have applied the principles set forth in reaching my conclusions in this application.
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2]Barwon Spinners
5 I am required by s.134AE of the Act to give detailed reasons which are as extensive as complete as the court would give on the trial of an action, and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff's Background
6 The plaintiff was born on 3 December 1946. She is now 65 years of age. At the time of the right shoulder injury the plaintiff was 61 years old. She is a married woman and has three grown up children. She is also a grandmother and to the best of my recollection she has three grandchildren.
7 She completed her secondary education at Year 11 and commenced training to be a nurse the age of 17. In effect she has been working in nursing duties her whole life except for the times of injury in the past, periods of confinement with her children, and a period that she took off work as a result of an injury in 1993/94. I will return to this later.
8 The plaintiff has not worked since her accident on 12 September 2008. She resigned from her employment with the defendant on 12 June 2009. Her evidence on this was that although she had been certified by medical practitioners that she could return to duties, she was of the view that she could not do the work that was assigned to her because of the accident. She resigned rather than returned to work.
9 There is no controversy between the parties on the cause of the injury or what occurred. In short, the plaintiff was the supervisor on night shift at the defendant's premises. In the course of her duties she found a patient wandering in a disoriented manner in the ward in the later hours of the evening. She was unable to raise other assistance to help her in the task of getting this patient back to bed. The plaintiff obtained a wheelchair and was attempting to return the patient to the bed by using the wheelchair. In the process of getting the patient into the wheelchair, the patient grabbed hold of the plaintiff's right arm and twisted it. The plaintiff immediately felt pain in her right shoulder and neck region, and she also felt pain in her right arm. In this application the injury is conceded as having occurred at work.
The Medical Treatment of the Plaintiff
10 On the day of the accident the plaintiff finished her shift and went home. On the following day, Saturday 13 September 2008, she attended the “on call” doctor at her usual general practitioner's practice which was Wodonga West Medical Clinic. On the following Monday she returned to the practice and was seen by Dr Sartori, one of the regular general practitioners at that practice. She also saw Dr Sartori on 26 September 2008 as well.
11 She had been prescribed what I would describe as a cocktail of medications which included Tramadol, Di-Gesic, Endone and Orudis to manage her pain. As a result of that medication the plaintiff ended up at the Accident and Emergency Department of the Wodonga Regional Hospital with gastric bleeding problems on 29 September 2008. She then went to her usual general practitioner, Dr Bill Walton, and was diagnosed with a pyloric ulcer. She now has to take Zantac for the rest of her life in order to manage the symptoms to her stomach ulcer condition.
12 Before any of that medical difficulty the plaintiff had an ultrasound on her right shoulder on 16 September 2008. The conclusion of the ultrasound report stated:
"Calcific tendonitis and full thickness incomplete tear of the supraspinatus tendon subacromial impingement."[3]
[3] JCB 19
13 Dr Walton, following that, then referred the plaintiff to Mr Falkenberg, an orthopaedic surgeon. Mr Falkenberg saw the plaintiff on 17 October 2008. Mr Falkenberg ordered an MRI examination of the plaintiff's right shoulder. The MRI of the right shoulder took place on 24 October. The conclusion in respect of the MRI scan was:
"Increased fluid identified within the posterior portion of the subacromial and subdeltoid bursa. Tendonosis of the anterior fibres of the infraspinatus and the posterior fibres of the supraspinatus with bursal surface irregularities of the posterior portion of the cuff. There are some small intrasubstance insertional tears of the anterior fibres of the infraspinatus. No significant cuff tear or tendon reaction is seen and the muscle bellies are normal."[4]
[4] JCB 20
14 Mr Falkenberg interpreted the MRI result. He refers to it in his report of 27 February 2009 and this is the last time that Mr Falkenberg, on the evidence, has seen the plaintiff. He reports:
"The MRI suggested that the pathology in Mrs Moffat's shoulder was not as severe as the ultrasound had suggested. MRI is much more specific investigation. Nonetheless it did show tendonitis and in substance partial tears of the posterior fibres of the supraspinatus and the superior fibres of the infraspinatus."[5]
[5] JCB 32
15 He then went on to examine the plaintiff:
"I have found that her active elevation was limited to only 80 degrees compared with the normal 160 degrees in the right shoulder."
16 His diagnosis was right shoulder rotator cuff tendonosis secondary to partial tear. This is consistent with the findings on the MRI examination. His opinion as to the prognosis was as follows:
"The prognosis for this injury is uncertain in this 64 year old woman. Five months after the injury there had been no improvement. I believe that the vast majority of ladies in their 60s who sustain these types of injuries will have chronic ongoing symptoms."
17 He then went on say that it was possible that she might need surgery in the future. In his opinion she was not capable of going back to work. He then addressed the treatment as follows:
"Medication support from her general practitioner may be necessary, but as mentioned previously she is intolerant of most anti-inflammatories and a lot of analgesic because of her gastric sensitivity."
18 The plaintiff also by way of treatment had some physiotherapy treatment between September and December 2009. The physiotherapist Rebecca Morrison was the treating physiotherapist. The plaintiff's evidence was that after some physiotherapy treatment she had been told by her doctor to cease the physiotherapy and to let her shoulder “settle down”.
Ongoing Treatment.
19 The plaintiff has been treated conservatively. There are no immediate plans for any surgical intervention in her case. The ongoing treatment at the moment is, based on her evidence, that she takes eight to ten Panadol per week to manage her pain. She attends Chinese massage and a therapy called “cupping” since November 2011. She applies heat packs to her right shoulder area and her husband assists in rubbing what she described as Elmore Oil into her shoulder and right arm. This is the extent of her ongoing treatment.
Consequences of the injury.
Sleep
20 The plaintiff says - and I accept her evidence on this - that she has difficulty getting to sleep and that the pain keeps her awake. The fact that someone's sleep is interfered with in such a way and in a continual manner is a very significant consequence for that person and particularly in the enjoyment of her life. Obviously it affects their ability to rest and when they wake up after the little sleep they have it affects the manner in which they can conduct their day to day activities.
Pain
21 The plaintiff deposes to constant pain in her right shoulder. The pain is made worse by movement and use of her arm and shoulder. While she treats the pain with massage, heat packs and Panadol, I accept and find that the pain is a very considerable consequence for the plaintiff.
Medication
22 The plaintiff, because of her gastric difficulties arising out of the initial treatment, is now faced with a very limited set of options for the use of medication and control of the pain. Doctor Jakovits says that her ulcer symptoms are now not significant, but he goes on to say that she, the plaintiff, will have to take Zantac for the rest of her life in order to manage these gastro symptoms.
23 There are two parts to the medication as a consequence for the plaintiff. The first part is that she has to take the Zantac for life in order to manage her gastro problems which arose immediately after the first set of medication she had. Secondly, she is limited in what she can take in order to alleviate her pain. She is limited to the use of Panadol only. In other cases other people who are injured may have the access to all sorts of anti-inflammatories and painkilling medications. This is denied to the plaintiff. I find this is a very significant consequence for her.
24 Next is lack of mobility and movement. As I have already said, Mr Falkenberg has found that the plaintiff has limited active elevation of the right arm at 80 degrees rather than the normal 160 degrees. He accepts that she could not drive a car or attend her work properly. Mr O'Brien has observed wasting in the right shoulder girdle. He found all the movements of the right shoulder were restricted by pain. I will return to these matters when I come to the medical opinions. I find the limitation of movement of her right arm and shoulder is a significant consequence for the plaintiff.
25 In terms of activities of daily living, the plaintiff now as a result of her injury to the right shoulder and arm is limited in her activities by way of what she can do in the garden. She says she is limited in her showering and dressing. She demonstrated in the witness box how she washes her hair now, having in a somewhat feisty way said you only need one arm to wash your hair. She has demonstrated it with bowing her head very much forward and then raising her arm to a position where she could wash her hair. She still uses her right dominant arm to perform that task.
26 She was limited in making the bed and those types of house keeping activities because of her restricted shoulder movement. She also said that in terms of cooking, the heavier pots and pans her husband had to use and move as she could not due to her shoulder restriction. Whilst this is not the biggest consequence in this setting, it is another consequence as a result of the shoulder injury that the plaintiff has suffered.
Sport
27 Since this accident Mrs Moffat has taken up the sport of croquet. She said that her husband had bought her an especially light hammer of 2.5, I assume to be a 2.5 kilogram hammer. So in one way she has adapted herself in terms of sport so that she can continue to have some activity in that regard. Her evidence was she had played it twice in this year.
28 However, she has on the other hand lost her ability to play what she described as social tennis with her family, that she would have played tennis in the past in the format of doubles. It is lost to her now because she cannot use her right arm to play tennis. When challenged about the tennis she said because of her left arm injury, she said she used to bounce the ball first and then hit the ball with her right arm. That activity has now been taken from her.
29 I accept the plaintiff’s evidence that she is now unable to fish because she cannot cast a line. She had been fishing and held a line that someone else had cast for her but was unsuccessful in catching fish. However this part of the activity, that is casting a line, is of some significance to fishermen or fisherwomen, and in my view this activity is lost to her because of the injury to her right shoulder.
30 The most significant loss however in the sporting field is that of cycling. Mrs Moffat was a person who had previously enjoyed cycling. She spoke about riding, what I would consider, incredible distances to Beechworth and other places, and now says that she is unable to do that because she has no confidence and does not feel safe in using her right shoulder. This is to be taken in a setting where she previously had a compromised left shoulder in 1999 but was still able to do those riding activities with that shoulder. It is also in the setting where she had suffered from transverse myelitis affecting her leg but continued with cycling. What has happened since then is with this right shoulder injury that has been taken away from her. So it is the lack of cycling in terms of sporting activity that I find a very significant loss for the plaintiff.
Work
31 The plaintiff stopped her work on 12 September 2008. It is true that she was certified to be able to do light duties after this time but she had formed the view that she was unable to work. There is some support for that in the medical evidence in this case. In any event, she resigned on 12 June 2009.
32 For someone in Mrs Moffat's position who had worked in a professional capacity, (sometimes referred to as the caring profession) that of a nurse, for her whole adult life is a significant loss. It has taken away from her in essence a sense of self-worth and dignity that comes with her work as a nurse and the sense of contributing to the community. I find the fact that this injury really is the straw that broke the camel's back in the sense of her working life, and that is a very significant consequence for her.
Family activities
33 Mrs Moffat is a grandmother. She gave evidence that she was no longer able to engage in physical activities with her grandchildren and for her that was a significant loss. It is an understandable reaction and an enjoyment of hers that she says she has lost. I accept that she cannot involve herself in that activity with her grandchildren. This is a consequence for her arising from her right shoulder injury.
Medical opinions
Dr Walton
34 Dr Walton describes the injury initially as "partial tears to the right infraspinatus and supraspinatus tendons of the right shoulder" in his report dated 12 September 2008. He then goes on to talk about the complication of the gastric ulcer and the like. Dr Walton then states:
"The injury to the right shoulder and subsequent impairment suffered by the client does restrict some social, domestic and recreational activities. She does have pain every day. All her activities are restricted. I comment that the extent of the impairment is significant."
35 It is not for him to say that it is significant, however, what he does confirm is that the plaintiff has pain every day. He says that in the future the plaintiff may require surgical treatment to her shoulder by arthroscopy.
Mr Falkenberg
36 Mr Falkenberg says in the report dated 27 February 2009:
"Overall subjectively she feels a little better but she is still bothered by loss of function, stiffness and pain. Active elevation is limited to 80 degrees on the right."
37 He then goes on to talk about the MRI as follows:
"The MRIs showed tendonitis and in a way this is the same pathology as frozen shoulder syndrome but just localised pretty much to the infraspinatus and the supraspinatus tendons."
38 Any tearing of the rotator cuff structures is quite partial and not relevant in his opinion. He says in his last report dated 19 July 2011:
"Consequent to the permanent disability of the left shoulder she has become reliant on the right upper arm for most function. Thus the gravity of the recent injury was emphasised by the patient."[6]
[6] JCB 31
39 Mr Middleton made a submission about Lu v. Mediterranean Shoes on this issue, saying the court was not allowed to aggregate the injuries. I find that in this particular case, the right shoulder injury that has caused the problems that I have just enunciated as consequences to the plaintiff. It is not the left shoulder injury. As a matter of common sense of course it leaves her in a position where she is more compromised because of her left shoulder injury. My findings on the consequences relate directly to the right shoulder injury.
40 He then under the heading "Examination" found Mrs Moffat's right shoulder to have a full range of active and passive movement, but there was pain during the elevation movement suggesting impingement of the rotator cuff structure under the acromion. He confirms the MRI that I have previously referred to earlier in these reasons. Mr Falkenberg’s opinion is:
"The prognosis for this injury is uncertain in this 64 year old woman. Five months after the injury there had been no improvement. I believe that the vast majority of ladies in their 60s who sustain these types of injuries will have chronic ongoing symptoms."
41 He finds that will be the case for this plaintiff.
Mr Kenneth Brearley
42 Mr Kenneth Brearley noted in his report of July 2011 that there was moderate wasting around the shoulder girdle. He then gave his opinion as follows that:
"Right shoulder subacromial bursitis secondary to damage to the supraspinatus and infraspinatus portions of the rotator cuff, consequent major limitation in the movements of the right shoulder and consequently use of the right arm."[7]
[7] JCB 80
43 He then says:
"These limitations are all due to organic injury, there being no evidence at all of any functional overlay."
44 He then goes on to the prognosis as follows:
"This is poor. There is no likelihood of any improvement in the foreseeable future and there is no likelihood that she will be able to return to any form of nursing or other suitable employment."
Mr O'Brien
45 Mr O'Brien prepared a number of reports in respect of the plaintiff. He took a past history of the injury to the left shoulder and then on his physical examination in his report dated 6 July 2011 he found that there was noted to quite marked tenderness over the anterior, superior and posterior aspects of her right shoulder.
He then goes on to talk about the MRI results and under the heading “Discussion” says:
"The signs now indicate generalised restriction of shoulder movement with quite marked tenderness aggravated by active movement against resistance. This does suggest presence of capsulitis obviously now resulting in chronic shoulder pain."[8]
[8] JCB 86
In his opinion the plaintiff’s prognosis was poor. There was now well established chronic shoulder pain which will persist. In his last report, dated 13 February 2012, Mr O'Brien stated as follows:
"At present the patient stated she is not receiving any active treatment, using about eight to 10 Panadol tablets every two weeks and relying very much on heat packs to relieve her pain."
Mr O'Brien noted that there was evidence of wasting in relation to the right shoulder girdle and that all movements appeared to be restricted by pain. The patient did report significant tenderness over the anterior, lateral and posterior aspects of the right shoulder. Active movements against resistance also precipitated right shoulder pain. He found that:
"The examination revealed quite marked restriction of all movements of the right shoulder which I would consider does suggest the presence of adhesive capsulitis as now the underlying pathology which is clearly affecting the glenohumeral articulation."[9]
He says:
"I would certainly accept the original injury was a rotator cuff with a tendinopathy. I consider that in addition to this pathology persisting there is also now a capsulitis affecting the glenohumeral articulation."
[9] JCB 87C
46 Mr O'Brien noted the plaintiff’s continual complaint of chronic pain and stated the prognosis was poor. He was confident that the plaintiff would and could not return to work.
Dr Andrew Jakovits
47 He sets out his opinions on pp.65B and 65A, and I do not think I need to go over that other than to briefly say that he says that the ulcer problem was a result of the medication given to the plaintiff. He is of the opinion that her ulcer type symptoms are not significant now. She is to remain on Zantac indefinitely.
Mr Moran
48 Mr Moran examined the plaintiff on behalf of the defendants. Mr Moran took a history of her present symptoms as having right shoulder pain which radiates up to the right side of her neck, and this pain is present 80 per cent of the time and fluctuates in severity. She said that her right shoulder movements were restricted. He then did an examination of the plaintiff and he said as follows:
"Mrs Moffat has tendonosis of the supraspinatus and infraspinatus tendons of her right shoulder. Mrs Moffat has sustained soft tissue injury of her thoracic spine."
49 Mr Moran found that she was fit only for light duties not using her arms above shoulder height. He then went on to enunciate some potential jobs of administrative assistance, customer service officer, console operator or retail store assistant. For someone who has been a nurse all her life and trained and worked in that area, I do not think this is a realistic assessment of an appropriate return to work for the plaintiff.
Dr Ross Andrews
50 Dr Ross Andrews in his last report was dated 6 November 2009 found that:
"It would appear that Kaye's" - meaning the plaintiff's - "right shoulder condition is gradually resolving and is expected to take up to another year before full optimal return function is seen. I suspect this will result in some deficit compared to the pre-injury level of function."[10]
It is to be remembered this report is dated 6 November 2009. He then states:
"I do not think this lady would be able to return to her full pre-injury duties now or in the future."[11]
I find that proved to be an accurate assessment. He set out what he described as the work restrictions as at that time, and given that it is over two years old as a report I do not propose to go into those matters.
[10] JCB 60
[11] JCB 61
51 The main issue in this case is that of the credit of the plaintiff. She was challenged on the issue of not mentioning her previous right shoulder injury, what I will refer to as the prior injury. This injury is 1991/1992. The plaintiff did not mention it in her affidavit and she admitted to that in evidence. She described it as being a strain. She had not disclosed that she had made a claim and had in fact received lump sum compensation.[12] In the claim form relating this claim she did not correctly answer the question about previous injury.
[12] JCB 17
52 The facts are that she did make a claim. She did receive lump sum compensation and she remained off work for a period of 12 months. Her evidence on that was that she did not have to work and that she effectively just took that year off from 1993 to 1994.
53 I do not accept that she was deliberately hiding the previous right shoulder injury from the court or from anyone else in order to advance her claim or her application in this case. She said in her evidence that she had forgotten about it. I do not quite accept that. Mr Middleton submitted to me that it was "unbelievable" that anyone could forget such an injury and claim in the past.
54 I do not put it as strongly as that. I think that the reality is that this plaintiff has had a litany of medical conditions, some of which I have spoken about this judgment to date. If you go to p.49 of the court book it is not a full list of them either but she has had transverse myelitis four years ago, that is from a report dated in 2008. She had bilateral osteoarthritis of the hips and had a total right hip replacement in 2004. She has had a sigmoid colectomy in 1997. She has had a left rotator cuff repair in 1999 which has been referred to before. She had spontaneous DVT in 1977. She has had bilateral macular degeneration, particularly in the right eye. She has also had a cholecystectomy and an appendectomy in the past.
55 So in the light of all those medical and/or operative problems in the past, the right shoulder injury she had in the early 1990s is a long time ago. In any event, she has managed to get back to work and remained in work from 1994 through to 1999, and then after she recovered from her left shoulder injury she then started work again and continued up until the day of this accident. I do not accept that she was deliberately trying to hide it. In effect it has probably just slipped back in the queue of problems that she has experiences over her life.
56 One of the issues in assessing credit is what history she gives to the doctors. It is not submitted in this case that the plaintiff had given false or untrue histories to the doctors about the previous right shoulder injury in 1991/92. What is said is that she gave no history of the right shoulder injury to the doctors, and therefore she cannot be relied upon and more importantly the doctors' opinions cannot be relied upon because they do not have the full history.
57 The injury was back in the early 1990s. The plaintiff worked as a nurse and in nurse-related duties from 1994 to 1999, and then after the left shoulder surgery up until the time of injury. The doctors that have reported in this case have all had the advantage of examining the plaintiff. They have had radiological examinations and conclusions before them, and their opinions are based on what the plaintiff tells them are the current symptoms, their own observations and examinations, and the radiological examinations. Whilst it is not ideal that they do not have that piece of the history of the plaintiff's right shoulder injury back in the early 1990s, I accept that the opinions of the doctors in this case are appropriately based.
58 In cases where the credit of the plaintiff is attacked there are, generally speaking, some video surveillance films. I note in the court book index that there was some video surveillance in this case but it was not shown to the plaintiff. Whilst one cannot draw a lot from that, one can infer that there is nothing of this plaintiff that could have been shown on whatever surveillance film there was of the plaintiff that can be shown to her to attack her credit on the basis she can be more active than she said she was in the witness box.
59 I accept the plaintiff was an honest person.
60 Mr Middleton also submitted that the principles in Jones v. Dunkel apply, and apply to two people. The first witness he said it applied to was Mrs Moffat’s husband. There was no affidavit in support from Mr Moffat. Often in these cases there is an affidavit from the spouse or partner of a plaintiff. However, whilst generally speaking the principles in Jones v. Dunkel would apply to such a person, I do not find in this case that it has any great significance. I find that because the plaintiff herself has, in a very straightforward manner, said what she can do and what she cannot do, I accept her evidence. All the husband could do, for want of a better way of describing, would be to corroborate it, and as we all know, many times in these cases the husband or spouse, the person is never cross-examined.
61 Secondly, the plaintiff now attends Dr Sululola. She has been attending this doctor for 18 months to two years. In effect it was put on a Jones v. Dunkel position that this doctor would not have advanced the plaintiff's case here. I accept that Dr Walton has had supervision of the plaintiff's treatment up until approximately one year ago. His report is the evidence to do with the right shoulder. The symptoms in that period of time, that is before 12 months ago and up until now, have been stable and consistent, and appear to be ongoing for the foreseeable future. In my view, I find that “the missing GP”, Dr Sululola, is not of great significance in this case.
62 In conclusion, after consideration of all the evidence in this case, I am of the view that this is a finely balanced case, ultimately taking into account all of the consequences suffered by the plaintiff as a result of the impairment to her right shoulder. I am satisfied that such consequences, when judged by comparison with other cases in the range of possible impairments, can fairly be described as being more than significant or marked and as being at least very considerable.
63 Therefore, I grant leave pursuant to s.134AB(16) of the Act to the plaintiff to bring common law proceedings for pain and suffering damages in respect of the right shoulder injury suffered by her on 12 September 2008 in the course of her employment with the defendant.
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