Moutzouroulias v Victorian WorkCover Authority
[2024] VCC 1267
•21 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-04782
| VASILIKI (VICKY) MOUTZOUROULIAS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 April 2024 | |
DATE OF JUDGMENT: | 21 August 2024 | |
CASE MAY BE CITED AS: | Moutzouroulias v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1267 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – left shoulder injury – loss of body function – pain and suffering – reliability – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335 and s325(1)
Cases Cited:Ansett Australia Ltd v Taylor [2006] VSCA 171; Philippiadis v Transport Accident Commission [2016] VSCA 1; Browne v Dunn (1893) 6 R 67; Popal v Transport Accident Commission [2023] VSCA 222; Sepe v Club Italia Sporting Club Inc (Ruling) [2023] VSC 191; Peak Engineering & Anor v McKenzie [2014] VSCA 67; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Dressing v Porter & Anor [2006] VSCA 215; Acir v Frosster Pty Ltd [2009] VSC 454; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592
Judgment: Leave granted to the plaintiff to bring common law proceedings for damages for pain and suffering in respect to a left shoulder/left arm injury suffered in the course of her employment with Assetlink Services (17) Pty Ltd.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Carson | Ellis Palmos & Co |
| For the Defendant | Mr L Howe | Minter Ellison |
HIS HONOUR:
Background to the application
1The plaintiff, Ms Moutzouroulias, is aged 82 years. In April 2018, Ms Moutzouroulias commenced work as a cleaner with Assetlink Services (17) Pty Ltd (“Assetlink”).
2Relevant to the background of this application, Ms Moutzouroulias said:
(a) while she has had various health problems over the years, at the time she commenced with Assetlink, she was able to undertake the work;
(b) while she generally worked twenty hours per week, she faced significant time pressure;
(c) the work was physically demanding;
(d) the nature of her work, and in particular using a backpack vacuum cleaner, caused her to suffer a left shoulder injury;
(e) her left shoulder pain commenced in 2019;
(f) over time, the nature and extent of her left shoulder injury worsened;
(g) when she was stood down from work in April 2020 due to COVID, she was suffering left shoulder pain;
(h) the left shoulder pain did not improve despite not working;
(i) she returned to work for a brief period in December 2020 and was stood down again. She has not worked since.
3Ms Moutzouroulias says, by reason of her left shoulder injury, she continues to suffer pain and pain-related impairment. Ms Moutzouroulias says many aspects of her life have been adversely affected. Ms Moutzouroulias says her left shoulder injury is a serious injury and the Court should grant her leave to pursue common law damages for pain and suffering.
4The defendant, the Victorian WorkCover Authority (“VWA”), is the worker’s compensation insurer for Assetlink. They deny Ms Moutzouroulias has suffered a serious injury.
The nature of this proceeding
5This is an application brought pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). Ms Moutzouroulias relies upon paragraph (a) of the definition of “serious injury” in s325(1) of the Act. That is, her left shoulder/left arm injury is a “permanent serious impairment or loss of a body function”.
6For Ms Moutzouroulias to be successful, she must establish that the consequences from her injury, when judged by comparison with other cases in the range of possible impairments or losses of body function, are “more than significant or marked” and “at least very considerable”, as per the narrative test set out in s325(2)(b) and to s325(2)(c) of the Act.
What are the issues for the Court to determine?
7The VWA said:
(a) It concedes that Ms Moutzouroulias suffered a compensable injury.
(b) There was no dispute that her work with Assetlink caused an aggravation of an underlying left shoulder condition.[1]
(c) The nature of the work-related aggravation was in dispute. In particular, Ms Moutzouroulias’s left rotator cuff tear did not arise in the course of her employment with Assetlink.
(d) While they did not cross-examine Ms Moutzouroulias and raise credit issues, Ms Moutzouroulias’s evidence was unreliable.
(e) I should take heed of the clinical records of Ms Moutzouroulias’s general practitioner, Dr Chris Clifopoulos, in preference to Ms Moutzouroulias’s evidence and much of the other evidence.
(f) Ms Moutzouroulias had not disentangled the consequences of her work-related left shoulder injury from her pre-existing left rotator cuff tear, her numerous comorbidities and in particular her right shoulder injury.
(g) Ms Moutzouroulias suffered a minor injury by way of aggravation and the consequences did not meet the “serious injury” test.
[1]Transcript (“T”) 7, Line/s (“L”) 14 and T13, L2-30
8Mr Carson said:
(a) In respect to Ms Moutzouroulias’s reliability:
(i)she was not cross-examined and the Court should accept her evidence;
(ii)there was no evidence adduced from representatives of Assetlink to challenge Ms Moutzouroulias’s assertions and/or assert an alternative scenario;
(b) the general practitioner clinical records relied upon by the VWA were not conclusive and other evidence should be preferred. Indeed:
(i)no-one who assessed Ms Moutzouroulias said she was unreliable;
(ii)if Ms Moutzouroulias’s evidence was so contrary to the clinical records and unreliable, she should have been cross-examined and such matters put to her;
(c) the weight of the medical evidence supported the proposition that Ms Moutzouroulias had suffered a very significant left shoulder injury in the course of her employment with Assetlink;
(d) Ms Moutzouroulias had disentangled and the left shoulder consequences were clear;
(e) reliance was placed on the acceptance of Ms Moutzouroulias’s worker’s compensation claim;
(f) the consequences of Ms Moutzouroulias’s left shoulder injury did satisfy the “serious injury” test.
9That said, the issues for the Court to determine include:
(a) as to Ms Moutzouroulias’s reliability and what weight can be given to her evidence;
(b) which of the medical evidence should be accepted and what assistance does this evidence provide;
(c) what do I make of:
(i)the VWA admissions;
(ii)Ms Moutzouroulias’s submission in respect to the acceptance of her worker’s compensation claim;[2]
(d) has Ms Moutzouroulias disentangled;
(e) has Ms Moutzouroulias suffered a serious injury.
[2]Mr Carson in particular made references to Ansett Australia Ltd v Taylor [2006] VSCA 171.
What conclusions do I reach in respect to Ms Moutzouroulias’s reliability?
10As I have already noted, the VWA conceded this is not a credit case.
11That said, the VWA said Ms Moutzouroulias’s reliability was in issue. While the VWA did not cross-examine Ms Moutzouroulias, they said I should not accept her evidence, given:
(a) her history of dementia and cognitive problems;
(b) her histories to various doctors and her affidavit evidence in respect to her left shoulder injury and consequential pain were not corroborated by the clinical records of Dr Clifopoulos.
Indeed, the VWA said Ms Moutzouroulias’s assertions were no more than “bald complaints”.[3]
[3]T27, L25
12In analysing the weight to be given to Ms Moutzouroulias’s evidence, I shall:
(a) review the evidence in respect to her cognitive issues;
(b) undertake an assessment of Dr Clifopoulos’s evidence;
(c) undertake an analysis of the relevant authorities relied upon by the VWA;
(d) review the balance of the medical evidence;
(e) set out my conclusions.
Cognitive issues
13Dealing firstly with Ms Moutzouroulias’s cognitive issues.
14It is clear from the medical evidence that Ms Moutzouroulias has had issues with psychological and cognitive difficulties over the years.
15Indeed, there is evidence which confirms the diagnosis of dementia.
16Dr Clifopoulos had been concerned about Ms Moutzouroulias’s cognitive wellbeing as far back as 2017. Ms Moutzouroulias was still working at this time and, indeed, she had not yet commenced her employment with Assetlink.
17Over the years post-2017, Dr Clifopoulos made various entries in Ms Moutzouroulias’s clinical records relevant to psychological issues and cognition. Such entries include:
(a) a history of depression, delusion and panic attacks going back to 2017;
(b) concern in respect to a diagnosis of dementia/pseudo-dementia going back to at least 2017;
(c) a mini mental state assessment undertaken 9 October 2018, indicating “mild cognitive impairment is present”;[4]
(d) a mini mental state assessment undertaken 22 January 2021, indicating “mild cognitive impairment is present”;[5]
(e) a referral to Mr Thomas Clifopoulos, psychologist, made on 9 August 2021.[6]
(f) a mini mental state assessment undertaken 17 June 2022, indicating “moderate cognitive impairment is present”;[7]
(g) advice to Ms Moutzouroulias on 23 August 2022 not to drive.
[4]Defendant’s Court Book (“DCB”) 180
[5]DCB 157
[6]Plaintiff’s Amended Court Book (“PACB”) 36
[7]DCB 117
18Dr Clifopoulos was clearly aware of Ms Moutzouroulias’s cognitive challenges. Dr Clifopoulos did not, in his evidence, seek to qualify his opinion or raise concerns in respect to the veracity of Ms Moutzouroulias’s history or complaints as they related to her left shoulder.
19I move now to Dr Sanka Amadoru’s evidence. Dr Amadoru, a geriatrician, saw Ms Moutzouroulias on at least two occasions:
(a) 17 November 2021; and
(b) 16 November 2022.
20It was at the time of the second assessment, when Dr Amadoru had the benefit of a MRI scan, PET brain scans and other assessments, that the diagnosis of dementia due to LATE (limbic-predominant age-related TDP-43 encephalopathy) was made.[8]
[8]DCB 199
21Dr Amadoru said the dementia condition had impacted upon Ms Moutzouroulias’s cognition, including executive function, higher level somatic function and recent memory/new learning ability.
22Dr Amadoru suggested Ms Moutzouroulias:
(a) have a power of attorney appointed for financial matters;
(b) not drive;
(c) receive psychological support.
23Dr Amadoru’s evidence raises legitimate concerns.
24Moving now to the evidence of Mr Thomas Clifopoulos, psychologist.
25I had in evidence two reports from Mr Thomas Clifopoulos. For the purposes of this discussion, I will refer to the most recent report, dated 23 January 2024.
26As at January 2024, Mr Thomas Clifopoulos said he had had 26 consultations with Ms Moutzouroulias. Mr Thomas Clifopoulos said he was currently seeing her monthly.
27On mental state examination, Mr Thomas Clifopoulos said Ms Moutzouroulias:
(a) was clearly oriented to time, place and person;
(b) had no indications of thought disorders;
(c) had worsening memory;
(d) her thought processes were relatively-well communicated.
28Mr Thomas Clifopoulos’s current diagnosis was:
(a) Major Depressive Disorder;
(b) Gambling Disorder;
(c) Unspecified Personality Disorder.
29Mr Thomas Clifopoulos:
(a) made no specific reference to a diagnosis of dementia;
(b) did reference memory problems;
(c) was clear that Ms Moutzouroulias was orientated to time, place and person, and said he thought her thought processes were well communicated;
(d) said Ms Moutzouroulias “reported she continues to experience physical pain and psychological distress from her work-related injuries”.[9]
[9]PACB 49
30Mr Thomas Clifopoulos’s evidence provided me with a level of reassurance.
31Moving now to Ms Moutzouroulias’s oral evidence.
32I was only able to observe Ms Moutzouroulias in the witness box very briefly. From that limited opportunity, Ms Moutzouroulias:
(a) appeared as a frail 82-year-old lady;
(b) co-operated appropriately and appeared to understand the process;
(c) answered the six questions put to her without difficulty and in an appropriate manner.
33Ms Moutzouroulias’s reliability was not tested in cross-examination. I did not have the opportunity to make any better assessment than the observations which I have outlined.
34Moving now to the evidence of Mr Theodore Stathopoulos.
35Mr Stathopoulos has lived with Ms Moutzouroulias for many years. Mr Stathopoulos’s evidence primarily focused on the consequences to Ms Moutzouroulias following from her left shoulder injury. Mr Stathopoulos was not cross-examined.
36While Mr Stathopoulos said he was able to comment on changes in Ms Moutzouroulias’s mental and physical condition over the years, his evidence was in effect restricted to his observations in respect to the impact which Ms Moutzouroulias’s left shoulder had on her life. Mr Stathopoulos’s evidence was generally consistent with Ms Moutzouroulias’s evidence and the medical evidence as I accept it.
37Mr Stathopoulos’s evidence provided me with a level of reassurance.
What do I make of Dr Clifopoulos’s clinical notes and his evidence generally?
38Moving now to the balance of Dr Clifopoulos’s evidence.
39I make some preliminary comments in respect to Dr Clifopoulos’s evidence.
40The VWA urged me not to accept Ms Moutzouroulias’s evidence on face value. It relied upon what I term “the tension” between:
(a) Dr Clifopoulos’s medical reports prior to his report of 31 January 2024 and his clinical records;
(b) Ms Moutzouroulias’s evidence and Dr Clifopoulos’s report of 31 January 2024;
(c) the medico-legal evidence.
41The VWA said, in the circumstances, I should follow what was said by the Court of Appeal in Philippiadis v Transport Accident Commission[10] and in effect reject much of what was said by Ms Moutzouroulias in her affidavit evidence.
[10][2016] VSCA 1 (“Philippiadis”)
42It is therefore appropriate, prior to completing my analysis of Dr Clifopoulos’s evidence, to spend some time considering this VWA submission.
The VWA submissions based on Philippiadis
43The VWA said their failure to cross-examine Ms Moutzouroulias and the noncompliance with the rule in Browne v Dunn[11] did not:
(a) mean evidence led in contradiction of Ms Moutzouroulias’s evidence (and presumably that of Mr Stathopoulos and the medico-legal evidence) cannot be considered;
(b) prevent the Court from concluding that Ms Moutzouroulias’s evidence, together with Mr Stathopoulos and the medico-legal opinions, ought not be accepted.
[11](1893) 6 R 67
44The VWA took me to paragraph 86 of Philippiadis, where the Court of Appeal said:
“… in MWJ v The Queen, Gummow, Kirby and Callinan JJ stated that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with the rule in Browne v Dunn. Notwithstanding this, non-compliance with the rule does not mean that the evidence led in contradiction of the relevant witness’s evidence cannot be considered. Instead it is a matter of weight for the court to take into account. If a witness is not cross-examined upon a particular matter in relation to which he or she has given evidence, then that circumstance will often be a very good reason for accepting the witness’s evidence upon that matter. However, if a witness’s evidence appeared to be incredible or unconvincing, or if it was contradicted by other evidence which appeared worthy of credence, the fact that the witness had not been cross-examined would, or might, be of little importance in deciding whether to accept his or her evidence.”
(Footnotes omitted.)
45It is in this context the VWA said I should give greater weight to Dr Clifopoulos’s clinical records and early reports.
46The Court of Appeal, when grappling with the issue of clinical records, went on to say:
“We accept that courts need to exercise care in relying on the records of medical practitioners. Such records usually contain a selective summary in the doctor’s own words of what the patient tells the doctor and cannot be treated as a verbatim transcript of the entire medical attendance. The records may be inaccurate through miscommunication or misleading through omission. However, notwithstanding their limitations, very often clinical notes constitute highly probative evidence because they are independent and contemporaneous and deal with matters within the author’s area of expertise.”[12]
(Footnote omitted.)
[12](Ibid) at paragraph [105]
47The issue of clinical records has more recently been considered by the Court of Appeal in Popal v Transport Accident Commission.[13]
[13][2023] VSCA 222
48The Court of Appeal, in that matter, said:
“We should add the following. Care must be exercised in the use of a patient’s medical records as evidence in a civil trial. This is particularly so where the maker of the record is not called to give evidence — as is the case in most serious injury applications determined in the County Court. Those records are compiled for the purpose of the clinical evaluation of a patient’s condition and not for selective forensic cross-examination at a trial. Provided this is appreciated then the records can, as they did in this case, provide an appropriate basis for findings of fact or in relation to credibility — or both.”[14]
(Footnote omitted.)
[14](Ibid) at paragraph [87]
49It is clear:
(a) in some circumstances, clinical records may impact upon an applicant’s reliability and credit;
(b) care must be taken in respect to the use of clinical records;
(c) it is necessary to balance those clinical records to the totality of the evidence.
Turning back to the evidence of Dr Clifopoulos
50I will review Dr Clifopoulos’s medical reports before moving onto my analysis of his clinical records.
51Dr Clifopoulos’s first report of 4 August 2021 took the form of a completed questionnaire to EML, the VWA’s authorised insurer. This questionnaire had been faxed to Dr Clifopoulos by EML, marked “urgent”.
52To provide context to this report, it is useful to note the terms of the request. It read:
“Dear Dr Clifopoulos
I am aware that you are reviewing [Ms Moutzouroulias] for her work-related LEFT ROTATOR CUFF SHOULDER CAPSULE TEAR. In order to provide the most appropriate level of service to [Ms Moutzouroulias], your input regarding her current condition, and work capacity Is requested. I understand how busy you are; however it would be greatly appreciated If you could complete the following questionnaire. … .”[15]
[15]PACB 19
53It is in this setting that Dr Clifopoulos answered a series of questions.
54To summarise, Dr Clifopoulos said Ms Moutzouroulias:
(a) had a current diagnosis of rotator cuff tear to her left and right shoulder joint;
(b) without identifying which shoulder suffered symptoms, Ms Moutzouroulias’s symptoms included shoulder pain, stiffness and a restricted range of movement;
(c) could not return to work.
55Dr Clifopoulos also forwarded to EML Ms Moutzouroulias’s health summary sheet, which set out her various comorbidities, including dementia.
56Dr Clifopoulos’s next report is dated 1 June 2022 and was addressed to Ms Moutzouroulias’s solicitors.
57In this report, Dr Clifopoulos said:
(a) Ms Moutzouroulias was suffering bilateral rotator cuff injuries;
(b) her use of both arms was limited;
(c) she was receiving physiotherapy and a program of home rehabilitation;
(d) Ms Moutzouroulias’s injuries were consistent with the nature of her employment as a cleaner. In particular, the lifting of a heavy vacuum cleaner;
(e) Ms Moutzouroulias has secondary depression due to her chronic pain;
(f) Ms Moutzouroulias is permanently incapacitated for work.[16]
[16]PACB 27-28
58Dr Clifopoulos provided a CD with this report, which he said set out his examination findings and diagnosis. I am not aware whether this CD contained just the clinical notes which were tendered by the VWA or in fact contained other material.
59Dr Clifopoulos’s next report, dated 26 July 2022, took the form of a set of questions posed by EML and his answers.
60The key focus in this report, putting aside the question of Ms Moutzouroulias’s entitlement to weekly payments, focused on treatment. Dr Clifopoulos said:
“o EML notes that she is not receiving any treatment besides GP consultations and medication can you please advise what treatment [Ms Moutzouroulias] is having or if she needs anything ?
Home exercises, private massage and physio as required.
Minimal home duties, assisted by partner.
o Does she require any further supports in place?
She requires assistance for medication, physical treatment and transport. May require a T AXI assistance.
Referred to physiotherapy for rehabilitation, exercises, soft tissue mobilization and advice.
o EML will continue to provide assistance and support in terms of medical treatment for as long as [Ms Moutzouroulias] has an accepted claim for medical and like services. If you can recommended any services that may be of benefit to [Ms Moutzouroulias’s] claim please feel free to email me with a treatment plan or services that you recommend.
She has ongoing need to see Orthopaedic surgeons and specialists as needed. She may require future shoulder surgeries.”[17]
(sic)
[17]PACB 26
61The next report from Dr Clifopoulos is dated 19 January 2024.
62Again, Dr Clifopoulos said he provided a CD which set out further material. In this report, Dr Clifopoulos confirmed:
(a) Ms Moutzouroulias’s injuries were consistent with the nature of her employment;
(b) lifting a heavy vacuum cleaner contributed to the bilateral rotator cuff injuries;
(c) Ms Moutzouroulias was suffering chronic pain by reason of her injuries;
(d) Ms Moutzouroulias was permanently incapacitated.
63Dr Clifopoulos’s final report is dated 31 January 2024.
64Dr Clifopoulos confirmed there had been no change to the opinion which he had expressed in his report earlier in January 2024.
65Further, Dr Clifopoulos was asked to respond to two specific questions posed by Ms Moutzouroulias’s solicitors. While I am not privy to those questions, it is clear they were directed to the question of disentanglement.
66Dr Clifopoulos said:
“… these are the answers to your specific questions in your letter of today.
Question 1
[Ms Moutzouroulias] is suffering from a rotator cuff injury to the left shoulder as a result of her work.
Specifically there is evidence of a complete rupture of the supraspinatus tendon which has advanced since an earlier examination in April, 2021. Prominence of the acromio-clavicular joint is consistent with osteoarthritis. These changes appear to be post traumatic and stable. There is also a complete rupture through the supraspinatus tendon which has progressed since an earlier examination in April, 2021.
Question 2
[Ms Moutzouroulias’s] injuries to her left shoulder alone cause her ongoing pain,restrictions and disability on an indefinite basis. This is compounded by the fact she is left handed.
She thus remains permanently incapacitated for all employment for which is reasonably capable of performing on an indefinite basis.”[18]
(sic)
[18]PACB 33-34
67Moving now to Dr Clifopoulos’s clinical records. These ran for some ninety-six pages.
68I have already made reference earlier in this judgment to various concerns recorded by Dr Clifopoulos in respect to Ms Moutzouroulias’s psychological and cognitive issues. Such issues date back to 2017. There are also various other comorbidities referenced by Dr Clifopoulos over the years. These include thyroid, stress incontinence, URTI, asthma and family issues. This list is not exhaustive.
69It was at the consultation on 14 April 2021 that Ms Moutzouroulias’s left shoulder problems were first recorded in the clinical records.
70On this day, Dr Clifopoulos recorded Ms Moutzouroulias complaining of left shoulder pain over the last month, which she attributed to using a heavy vacuum cleaner.
71Dr Clifopoulos’s findings on examination of Ms Moutzouroulias’s left shoulder included:
(a) Tenderness;
(b) restricted movement;
(c) crepitus.
72Dr Clifopoulos’s notes indicated that he referred Ms Moutzouroulias for a left shoulder x-ray and ultrasound investigation on a preliminary diagnosis of a rotator cuff syndrome.
73Ms Moutzouroulias re-attended Dr Clifopoulos on 16 April 2021.
74The clinical records on this day say:
“Friday April 16 2021 14:23:25
Dr. Chris Clifopoulos
Visit type:
WorkCover visit
Results discussed with [Ms Moutzouroulias] and suitably advised. Copy of results given with [Ms Moutzouroulias’s] consent.
iSSUES:
1. Left rc TEAR
2. Left # HUMERUS
WorkCover Certificate given
Excercises given for Left ARM. NSAIDs supplied
Reason for contact:
Left Rotator Cuff Tear
Management:Referred to physiotherapy for rehabilitation, excersises, soft tissue mobilisation and advice.
Actions:
Letter notified by Dr. Chris Clifopoulos - MEDICAL CERT A4 14/04/2021
Radiograph notified by Dr. Chris Clifopoulos - XR LEFT SHOULDER, US LEFT SHOU
15/04/2021
Prescription added: MOBIC CAPSULE 7.5mg 1 cap daily As required after food
Prescriptions issued:
MOBIC CAPSULE 7.5mg 1 cap daily As required after food
Letter Created - re. VIC WorkCover & TAC - Certificate of Capacity to .Action added for GIVE COPY WCC, due on 16/04/2021.
Review:
1/52”[19]
(sic)
[19]DCB 151-152
75In the course of this application, I was not provided with the x-ray and ultrasound results referred to by Dr Clifopoulos on 16 April 2021. Neither counsel were able to assist me in this regard.
76I pause here to note that the only radiology which I was provided was the report of a bilateral x-ray and ultrasounds undertaken on 7 June 2021.
77Relevantly, the ultrasound of the left shoulder undertaken on 7 June 2021 reported:
“ULTRASOUND OF LEFT SHOULDER
There is a complete rupture through the supraspinatus tendon which has advanced since an earlier examination in April, 2021. The other rotator cuff tendons appear normal. There is no fluid in the bursa, nor in the sheath for the long head of the biceps. No impingement is identified. Prominence of the acromio-clavicular joint is consistent with osteoarthritis.
CONCLUSION - Complete rupture through the supraspinatus tendon which has progressed since an earlier examination in April, 2021.”[20]
[20]PACB 18
78This report is consistent with Ms Moutzouroulias undergoing a left shoulder ultrasound on or about 15 April 2021.
79For completeness, I note:
(a) I do not have in evidence Dr Clifopoulos’s WorkCover medical certificate which he provided to Ms Moutzouroulias on 16 April 2021;
(b) on the face of the 16 April 2021 notes, Ms Moutzouroulias was complaining of left shoulder problems only;
(c) Ms Moutzouroulias provided a history of her left shoulder problems occurring at work and in particular being associated with the use of the backpack vacuum cleaner.
80Subsequent to April 2021, the next relevant consultation recorded in Dr Clifopoulos’s records is 2 June 2021. The reason for contact on that day was said to be the left rotator cuff tear. However, on this occasion Ms Moutzouroulias was said to be complaining of bilateral shoulder pain. Ms Moutzouroulias was referred for further investigations, being those undertaken 7 June 2021 to which I have already referred (and to which I will make further reference later in this judgment when assessing the evidence of Dr Peter Wilkins, occupational physician).
81Subsequent to June 2021 and through to 11 January 2024 (which was the last consultation date in the clinical records which I was provided), Ms Moutzouroulias had many attendances with Dr Clifopoulos. The majority of these attendances, but not all, are titled, in “visit type” or under “billing”, as WorkCover visits. There is also reference to the provision of WorkCover certificates. However, in the majority of the clinical records, there is little or no detail in respect to either a left shoulder injury or bilateral shoulder problems.
82Between June 2021 and 11 January 2024, what is clear, is that:
(a) Dr Clifopoulos continued to see Ms Moutzouroulias for what he considered to be work-related injuries;
(b) Dr Clifopoulos continued to provide Ms Moutzouroulias with WorkCover medical certificates;
(c) unlike Philippiadis, there is nothing in the clinical records to negate Ms Moutzouroulias’s evidence that she continued to suffer left shoulder pain.
83Having analysed Dr Clifopoulos’s clinical records, together with his medical reports, I accept:
(a) Ms Moutzouroulias’s initial attendance for her left shoulder injury was 14 April 2021;
(b) on that day, Ms Moutzouroulias provided a history of the left shoulder injury being work related and in particular caused by the backpack vacuum cleaner;
(c) on or about 15 April 2021, Ms Moutzouroulias attended for x-ray and ultrasound, which confirmed left shoulder pathology;
(d) on 16 April 2021, Ms Moutzouroulias re-attended at Dr Clifopoulos’s clinic and was provided with a WorkCover medical certificate;
(e) there was reference to bilateral shoulder pain in June 2021 and Dr Clifopoulos referred to bilateral shoulder pain in his reports;
(f) the further radiological investigations in June 2021 confirmed a right shoulder problem and a worsening of the left shoulder problem;
(g) there was a continuation of the provision of WorkCover medical certificates all the way through to 13 December 2023 (there being no further consultation notes provided post 11 January 2024);
(h) Dr Clifopoulos, in his 31 January 2024 report, provided clear and unequivocal evidence in respect to the nature and consequences of Ms Moutzouroulias’s left shoulder injury alone.
84This takes me to my assessment of the medico-legal evidence.
The medico-legal evidence
85I have the following medico-legal reports:
(a) Dr Wilkins’ reports dated 18 May 2021, 7 June 2021 and 22 June 2021;
(b) Associate Professor Anthony Buzzard, general surgeon specialising in spine and upper and lower limbs, report dated 21 September 2022;
(c) Mr Raymond Crowe, orthopaedic surgeon, report dated 8 February 2024.
86I shall review this evidence in chronological order.
Dr Wilkins
87Dr Wilkins assessed Ms Moutzouroulias on 18 May 2021 for the VWA.
88Mr Moutzouroulias told Dr Wilkins:
(a) she had worked as a part-time cleaner;
(b) she was responsible for cleaning three floors of a building;
(c) typically she worked four hours per night, five days per week;
(d) she wore a backpack vacuum cleaner;
(e) over the last year or more, she had developed neck, back and shoulder pain related to the use of the vacuum cleaner;
(f) she continues to suffer neck and left shoulder pain.
89On examination, Dr Wilkins noted:
(a) Ms Moutzouroulias clearly struggled to remove her left upper limb from her outer garment for examination;
(b) her range of movement for her right shoulder was normal;
(c) for the left shoulder, Ms Moutzouroulias was unable to exceed the horizontal movement for abduction or flexion, extension was reduced by 25 per cent, adduction was normal and internal and external rotation were both reduced by 50 per cent;
(d) there was a minor reduction for power of resisted movements of the left shoulder.[21]
[21]DCB 6
90Under “Diagnosis”, Dr Wilkins said:
“It appears probable that Ms Moutzouroulias has suffered a rotator cuff lesion, most likely involving supraspinatus on the left side. An ultrasound examination would be worthwhile to verify this.”[22]
[22]DCB 7
91Dr Wilkins expressed a concern that Ms Moutzouroulias’s left shoulder injury resulted from a motor vehicle accident which had occurred some thirty-five years prior.
92Dr Wilkins noted Ms Moutzouroulias reported some memory issues, but did not raise any concern in this first report.
93Dr Wilkins concluded that Ms Moutzouroulias was a seventy-nine-year-old cleaner who had developed neck and left shoulder pain over the course of several years.[23]
[23]DCB 8
94At the time of the first report, in respect to causation, Dr Wilkins said he was “uncertain”.[24]
[24]Question 3 at DCB 7
95Subsequent to the provision of his first report to the VWA, Dr Wilkins was requested to provide a supplementary report. Dr Wilkins was provided by the VWA with:
(a) a circumstances report;
(b) a statement of Mr Urgur;
(c) a statement of Mr Ozcelik;
(d) a job-fit referral;
(e) Ms Moutzouroulias’s leave report.
96I have not been provided with these materials. I make two comments:
(a) Mr Carson asked me to draw inference from the failure by the VWA to adduce evidence from Assetlink to refute Ms Moutzouroulias’s evidence;
(b) it is not for me to speculate what may or may not be the contents of these materials.
97Having said that, Dr Wilkins noted the materials raised the issue of Ms Moutzouroulias’s dementia. Dr Wilkins went on to say that nothing in the additional materials supplied caused him to alter the opinions which he had previously expressed.[25]
[25]DCB 11
98On 11 June 2021, the VWA provided Dr Wilkins with the 7 June 2021 radiology reports and requested he provided a further supplementary report.
99In his 22 June 2021 report, Dr Wilkins expressed concerns about the origins of the bilateral supraspinatus tears shown in the radiology.
100Dr Wilkins went on to say:
(a) it appears more likely than not Ms Moutzouroulias’s long-term employment as a cleaner has made a significant contribution to the development of her relevant symptoms arising from the supraspinatus tears, particularly her left shoulder;
(b) it was possible/probable that such an injury (supraspinatus tear) arose as a late complication of an injury to her left shoulder sustained more than thirty-five years ago (that is, the motor vehicle accident).[26]
[26]DCB 13
101In response to specific questioning by the VWA, Dr Wilkins said Ms Moutzouroulias’s employment has made a significant contribution to the physical symptoms affecting both her shoulders and consequently to the physical limitations on her performing further work.[27]
[27]Ibid
Associate Professor Buzzard
102Associate Professor Buzzard assessed Ms Moutzouroulias for the VWA on 20 September 2022.
103Ms Moutzouroulias attended this consultation with her partner.
104Associate Professor Buzzard obtained a history that:
(a) Ms Moutzouroulias had developed pain in her left shoulder region;
(b) she attributed this to wearing a backpack vacuum cleaner.
105Associate Professor Buzzard concluded:
“I think that [Ms] Moutzouroulias has bilateral rotator cuff pathology. On the left side, this is symptomatic. On the right side, it appears not to be.
I think it is reasonable to accept that this has probably come on during the course of her work with Asset Link (sic) Services as a cleaner. I think it is appropriate for this to be treated conservatively.”[28]
[28]DCB 26
106Associate Professor Buzzard did say there were some inadequacies in the history given, this being raised in the context of Ms Moutzouroulias suffering a left shoulder injury thirty-five years ago.
107Associate Professor Buzzard concluded that Ms Moutzouroulias had a 9 per cent AMA whole person impairment by reason of her left shoulder injury.[29]
[29]Ibid
108Associate Professor Buzzard was requested to provide a supplementary report to the VWA’s solicitors. Associate Professor Buzzard was provided a more detailed history in respect to Ms Moutzouroulias’s work and he was asked whether he changed his original opinion in respect to causation. Associate Professor Buzzard said:
“… I have diagnosed bilateral rotator cuff pathology – symptomatic on the left side, but not on the right side. Although rotator cuff pathology is a degenerative condition – there is usually some form of trauma associated with it. The sort of trauma associated with carrying a backpack vacuum could cause that. There is no information available to me to provide any other cause. In other words, although the further information provided by you is at odds with the information provided directly from [Ms] Moutzouroulias, it isn’t such as to cause me to change my original opinion as to causation.”[30]
[30]DCB 42
109Associate Professor Buzzard was given every opportunity to recant from his evidence in respect to causation. He did not.
Mr Crowe
110Mr Crowe assessed Ms Moutzouroulias for her solicitors on 8 February 2024.
111In respect to the left shoulder injury sustained thirty-five years prior, he had obtained a history that “she recovered extremely well from this and it did not cause her problems for many years”.[31]
[31]PACB 54
112Mr Crowe also recorded in the history that Ms Moutzouroulias:
(a) Had worked sewing and dressmaking for many years.
(b) Had worked as a cleaner since 2002.
(c) Commenced work with Assetlink in 2018.
(d) Was required to wear a backpack vacuum cleaner. This displaced to the left side laterally and caused a great deal of pressure on the left side of her shoulder.
(e) Began to feel left shoulder pain from this in around 2019.[32]
[32]Ibid
113Mr Crowe, on clinical examination, said:
(a) when Ms Moutzouroulias tried to remove her coat, it was obviously extremely painful and difficult for her to do from her left arm;
(b) Ms Moutzouroulias’s right arm had an excellent range of pain-free movement with quite reasonable strength for her age;
(c) Ms Moutzouroulias’s left shoulder was extremely irritable and:
(i)there was only around 20 degrees, at the most, passive elevation abduction before there was severe pain in the rest of the movement;
(ii)passively, he could not elevate Ms Moutzouroulias’s arm more than about 90 degrees because of pain;
(iii)active elevation abduction was extremely limited and quite painful;
(iv)any attempt at external rotation and internal rotation was really negligible because of pain.[33]
[33]PACB 55
114Mr Crowe said the imaging results of June 2021 were “quite in keeping with the clinical presentation and examination findings”.[34] Mr Crowe said he would expect the radiological findings to continue to deteriorate.
[34]Ibid
115Mr Crowe said he discussed with Ms Moutzouroulias the possibility of surgical intervention, such as a reverse shoulder replacement.[35]
[35]Ibid
116On the question of work relationship, it was Mr Crowe’s opinion that “there is no doubt that this [Ms Moutzroulias’s] left shoulder problem was significantly contributed to by her employment”.[36]
[36]Answer to Question 2 at PACB 56
117Mr Crowe went on to say that Ms Moutzouroulias was considerably restricted in relation to the use of her left shoulder and arm.[37]
[37]PACB 56
118Mr Crowe said he had no doubt that Ms Moutzouroulias’s left shoulder condition would continue into the foreseeable future.[38]
[38]PACB 57
Returning back to the issue of Ms Moutzouroulias’s reliability
119I now return back to complete my analysis of Ms Moutzouroulias’s reliability and whether Dr Clifopoulos’s clinical records lead me to the conclusion her evidence was generally unreliable.
120True it is:
(a) Ms Moutzouroulias has some cognitive challenges;
(b) Dr Clifopoulos’s clinical notes could have been more fulsome in their detail in respect to Ms Moutzouroulias’s left shoulder injury.
121Having said that, I do not accept I should draw the conclusions based upon Philippiadis as urged by the VWA. I do not accept Ms Moutzouroulias’s evidence to be “incredible or unconvincing” or to be so contradicted by other evidence which appeared worthy of credence. Given the facts in this case as I accept them, this submission by the VWA just does not stack up.
122It follows that I do not accept:
(a) Ms Moutzouroulias’s evidence on key issues in dispute is unreliable;
(b) the medico-legal evidence is likewise unreliable.
What conclusions do I reach in respect to the medical evidence?
123Having concluded my analysis in respect to Ms Moutzouroulias’s reliability, I will set out my conclusions based on the medical evidence.
124Firstly, I accept the evidence of Dr Clifopoulos as set out in his report of 31 January 2024. That is, I accept Ms Moutzouroulias’s injury to her left shoulder alone is the cause of ongoing pain, restriction and disability on an indefinite basis.
125Secondly, where there is issue between Mr Crowe/Associate Professor Buzzard and Dr Wilkins, I accept the evidence of Mr Crowe/Associate Professor Buzzard. I am greatly assisted by the evidence of Mr Crowe. Mr Crowe is an orthopaedic surgeon and the assessment of injuries such as Ms Moutzouroulias’s fall within his area of speciality. I accept the weight of the medico-legal evidence is to the effect Ms Moutzouroulias:
(a) suffers a work-related left shoulder injury;
(b) the left shoulder injury is consistent with the work she was undertaking as a cleaner and in particular her use of the backpack vacuum cleaner;
(c) continues to suffer left shoulder pain and pain-related impairment for which there is an organic basis;
(d) suffers a left shoulder injury which is permanent.
The VWA admission and the Ansett submission
126I do not, for the purposes of this judgment, intend to undertake a detailed analysis of Ansett, nor indeed other authorities which deal with admissions against interest, such as Sepe v Club Italia Sporting Club Inc (Ruling).[39] I do not need to, given:
(a) the admissions made by the VWA;
(b) my rejection of the Philippiadis VWA submission;
(c) the medical evidence as I accept it.
[39][2023] VSC 191
127The acceptance of Ms Moutzouroulias’s workers compensation claim is consistent with my assessment of the evidence and my conclusions.
Disentanglement
128Moving now to disentanglement.
129That the consequences of any pre-existing left shoulder problems and/or Ms Moutzouroulias’s various comorbidities (including her right shoulder) must be disentangled is clear.[40] Likewise, the process to be followed in disentanglement is well established.[41]
[40]Peak Engineering & Anor v McKenzie [2014] VSCA 67
[41]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60. See the analysis in paragraphs [25]-[35].
130I accept Ms Moutzouroulias:
(a) had a left shoulder fracture thirty-five years ago as a consequence of a motor vehicle accident;
(b) suffers cognitive impairment due to dementia;
(c) has been diagnosed with a right shoulder supraspinatus tear;
(d) suffers various other comorbidities.
131While I will make specific comments in respect to disentanglement later in this judgment, when assessing the left shoulder injury, lest there be any doubt, I disregard the consequences attributable to the comorbidities.
132For completeness, it is appropriate to recognise that Ms Moutzouroulias is not precluded from a finding of serious injury for her left shoulder injury by reason of the existence of such other comorbidities that may also impact upon her.[42]
[42]See in particular Ashley JA in Dressing v Porter & Anor [2006] VSCA 215 at paragraph [47]. Further, I am assisted by the analysis of J Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454.
The motor vehicle accident thirty-five years prior
133Going to the motor vehicle accident which occurred some thirty-five years ago.
134There is no evidence that when Ms Moutzouroulias started with Assetlink she had left shoulder pain or pain-related restriction. Indeed, Ms Moutzouroulias had worked as a cleaner since 2002 and prior to that had undertaken sewing and dressmaking work. This tends against the proposition Ms Moutzouroulias had left shoulder problems which were symptomatic prior to April 2018.
135Further:
(a) I accept Ms Moutzouroulias’s current left shoulder problems first arose in 2019.
(b) I do not accept Dr Wilkins’ evidence that the motor vehicle accident thirty-five years ago has impacted upon Ms Moutzouroulias’s current presentation. I prefer the evidence of Mr Crowe. He does not give any support to such a proposition.
(c) Indeed, apart from Dr Wilkins, no-one else sought to attribute Ms Moutzouroulias’s current problems to that event. Ultimately, even Dr Wilkins said Ms Moutzouroulias’s employment has made a significant contribution to the physical symptoms affecting both shoulders.
136Put simply, I do not accept there is a relevant pre-existing left shoulder injury to disentangle.
Cognitive problems
137Moving to Ms Moutzouroulias’s cognitive problems.
138These were first diagnosed prior to Ms Moutzouroulias working with Assetlink. While Ms Moutzouroulias’s cognitive issues may impact her capacity to manage her financial affairs, I do not accept they impact upon:
(a) her perception of the pain she suffers in her left shoulder;
(b) the pain-related impairment flowing from her left shoulder injury.
139I do not accept Ms Moutzouroulias’s descriptions of pain and pain-related impairment to be unreliable. None of the doctors doubt it. Indeed, the overwhelming weight of the evidence is that Ms Moutzouroulias’s complaints of pain and pain-related restrictions are consistent with an organically-based left shoulder injury.
Right shoulder
140Moving now to Ms Moutzouroulias’s right shoulder.
141I appreciate that Dr Clifopoulos, in his reports, referred to bilateral shoulder problems. Indeed, it was not until his final report Dr Clifopoulos disentangled. That said, it is the medico-legal evidence which provides me with comfort on this issue.
142In this regard, I note:
(a) Dr Wilkins, at the time of his clinical examination, said the range of movement of Ms Moutzouroulias’s right shoulder was normal;
(b) Associate Professor Buzzard, in his assessment, said Ms Moutzouroulias’s right shoulder did not appear to be symptomatic;
(c) Mr Crowe, at the time of his clinical examination, said Ms Moutzouroulias’s right arm had excellent pain-free movement, with quite reasonable strength for her age.
While the radiology indicates pathology in the right shoulder, the clinical assessment by a range of experts does not support significant ongoing right shoulder problems.
143While Ms Moutzouroulias may have complained to Dr Clifopoulos of right shoulder pain back in June 2021, the subsequent medico-legal examinations tend against an ongoing right shoulder problem of any substance. Absent Ms Moutzouroulias being cross-examined on this issue, the current state of the evidence does not support the VWA submission that Ms Moutzouroulias’s right shoulder, notwithstanding the radiological investigation reports, gives her significant ongoing problems.
Other comorbidities
144Moving to the various other comorbidities.
145I accept Ms Moutzouroulias suffers a range of current health issues. However, the VWA did not take me to and particularise consequences of such comorbidities which impact upon, duplicate or diminish the left shoulder consequences relied upon by Ms Moutzouroulias.
Some general observations on the “serious injury” test
146Before moving to complete my determination of Ms Moutzouroulias’s application, I make some general comments in respect to the “serious injury” test.
147It is Ms Moutzouroulias who has the onus of proof.
148To establish “serious injury”, the threshold is high.
149As set out in Stijepic v One Force Group Aust Pty Ltd & Anor,[43] while the evidence may disclose pain and suffering consequences which are both “marked” and “significant,” for Ms Moutzouroulias to be successful, I have to be persuaded that the consequences due to left shoulder injury can fairly be described as being “more than significant or marked” and being “at least very considerable”.
[43][2009] VSCA 181
150The process to be followed in the assessment of pain and suffering consequences was considered by the Court of Appeal in the much-quoted case of Haden Engineering Pty Ltd v McKinnon.[44] The observations made by Maxwell P provide me with assistance in respect to the tasks which I am to undertake in the completion of this aspect of my determination.[45]
[44](2010) 31 VR 1 (“Haden”)
[45](Ibid). See, in particular, Maxwell P at paragraphs [9]-[17].
151Further, it is the “collective nature” of the pain and suffering consequences which must be considered. That is, the Court must consider “globally” all of Ms Moutzouroulias’s:
(a) actual experiences of pain; together with
(b) the disabling and debilitating effects of the impairment.[46]
[46]Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at paragraph [114] (per Hargrave AJA)
152As a part of my analysis, I must give consideration to not only what it is that Ms Moutzouroulias says that she has lost, but also what it is that she has retained.[47]
[47]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
153As the Court of Appeal said in Ellis Management Services Pty Ltd v Taylor[48] in relation to range cases:
“The judgment in issue is an evaluative one involving a synthesis of matters of fact and degree. Such a judgment necessarily involves a consideration of detailed facts and a weighting of cumulative factors. Different minds might reasonably reach different conclusions as to where the overall seriousness of the consequences fell within a range. … .”[49]
[48][2013] VSCA 326
[49](Ibid) at paragraph [59]
Does Ms Moutzouroulias suffer a serious injury?
154As a starting point:
(a) I note Ms Moutzouroulias is left handed. Thus, the injury to her left shoulder and any impaired arm function takes on an added level of importance.
(b) I shall in general terms, in my analysis, follow the template set out by Maxwell P in Haden.
155Moving firstly to pain.
156I had not only Ms Moutzouroulias’s evidence in respect of pain, but also:
(a) Mr Stathopoulos’s observations;
(b) the medical evidence which confirmed an organic basis for her complaints of pain;
(c) The VWA admission of injury.
157Having considered all of the evidence, put simply, I accept Ms Moutzouroulias:
(a) suffers chronic pain in her left shoulder;
(b) suffers increased pain when using her left arm, and in particular when lifting her left arm out, up and away from her body.
158I accept that Ms Moutzouroulias’s treatment is limited to:
(a) intermittent visits to Dr Clifopoulos;
(b) medication such as Mobic;
(c) the use of Voltaren gel.
159I note Mr Crowe’s suggestion in respect to surgery and in particular a reverse shoulder reconstruction. I accept, given Ms Moutzouroulias’s age and comorbidities, this is not an option she wishes to pursue. That is reasonable.
160In the circumstances, I do not accept the Kelso[50] based submission urged upon me by the VWA. Surgery is not a realistic option and otherwise Ms Moutzouroulias is limited to painkilling medication.
[50]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592
161Moving now to movement.
162I accept Ms Moutzouroulias has very significant restrictions in movement and any significant left arm movement is likely to increase her pain. In this regard, I was greatly assisted by the observation of Mr Crowe at the time of his clinical examination.
163I accept that Ms Moutzouroulias’s chronic left shoulder pain, and the increased pain on movement, significantly impacts her capacity to use her dominant left arm/hand.
164Ms Moutzouroulias has already endured five years of left shoulder pain and consequential dysfunction. Ms Moutzouroulias will live out her twilight years in chronic pain and with restricted left arm capacity. I accept Ms Moutzouroulias’s pain and impaired left shoulder movement/function to be a very significant consequence.
165Moving now to work.
166Given Ms Moutzouroulias’s age and comorbidities and the concession made by Mr Carson, I do not accept this to be a matter of real significance. Ms Moutzouroulias’s work days were drawing to an end, notwithstanding her advice to Dr Clifopoulos that it was her desire to continue working.
167Turning now to sleep.
168Ms Moutzouroulias said:
(a) she did not get relief from pain at night;
(b) the pain made it difficult for her to get to sleep;
(c) she often takes medication to help her get off to sleep;
(d) she wakes if she rolls onto her left side;
(e) she averages around three to four hours sleep per night;
(f) she is left feeling tired during the day.
169I accept the impact on Ms Moutzouroulias’s sleep to be a consequence of real significance.
170Moving now to Ms Moutzouroulias’s activities of daily living.
171I accept that Ms Moutzouroulias continues to live independently. However, it is apparent that many normal activities of daily living, such as dressing, will be impacted. In this regard, I am assisted by the observations of Dr Wilkins and Mr Crowe. I accept that Ms Moutzouroulias’s general activities of life are impacted by her left shoulder injury.
172Moving to Ms Moutzouroulias’s domestic and household activities.
173Ms Moutzouroulias said it takes very little strain to set off an increase in her left shoulder pain. This impacts her capacity to:
(a) cook;
(b) clean;
(c) go shopping;
(d) do washing.
174I was assisted in my evaluation of these consequences by the evidence of Mr Stathopoulos.
175I accept that Ms Moutzouroulias is adversely affected in her capacity to undertake household and general day-to-day activities of daily living. I accept this to be a significant consequence.
176This is not a case where recreational and sporting activities loom large. Ms Moutzouroulias’s recreational pursuits seemingly revolve around attending at the “pokies”. There was no suggestion that Ms Moutzouroulias’s involvement in this activity is in any way compromised by her left shoulder injury.
177As I have already noted, I must take into account what Ms Moutzouroulias has retained. In this regard, I note Ms Moutzouroulias:
(a) continues to live independently with the assistance of Mr Stathopoulos;
(b) continues to do some limited activities around the home;
(c) does some shopping with difficulty;
(d) is able to attend at the pokies.
This list is not exhaustive.
I accept these are activities which I must consider and synthesise with the consequences which I accept Ms Moutzouroulias suffers by reason of her left shoulder injury.
178In respect to Ms Moutzouroulias’s overall enjoyment of life, I accept this has been significantly impacted by her pain, her pain-related restrictions and her impaired capacity to use her left and dominant arm. I accept, every day, Ms Moutzouroulias’s life will be impacted many times in some way or other by reason of her left shoulder injury. This will be lifelong. I accept Ms Moutzouroulias’s left shoulder injury has had a significant debilitating effect on her life. I accept her general enjoyment of life to be significantly impacted by her left shoulder injury alone.
179Having considered the totality of the evidence, I accept the consequences of Ms Moutzouroulias’s left shoulder injury are “very considerable”.
180Leave will be granted to Ms Moutzouroulias to pursue pain and suffering damages.
Consequential orders
181I will hear from the parties in respect of the consequential orders arising out of this judgment.
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