Nelson v Transport Accident Commission
[2023] VCC 1575
•3 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-03457
| DONNA NELSON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 June 2023 | |
DATE OF JUDGMENT: | 3 October 2023 | |
CASE MAY BE CITED AS: | Nelson v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1575 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – left shoulder injury – scarring – pain and suffering – credit – disentanglement – range
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Johns v Oaktech Pty Ltd [2020] VSCA 10; Haden Engineering v McKinnon (2010) 31 VR 1; Richards v Wylie (2000) 1 VR 79; Peak Engineering & Anor v McKenzie [2014] VSCA 67; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Transport Accident Commission v Garcia [2015] VSCA 225; Bustos v VWA [2021] VCC 1531; Kalinic v Acron Engineering Pty Ltd [2012] VCC 1052; Griffiths v Transport Accident Commission [2022] VCC 454; Kaos v XL Premix Pty Ltd [2023] VCC 1229
Judgment: Leave granted to the plaintiff to bring common law proceedings for damages pursuant to ss(a) consequential to the accident which occurred on 29 November 2017.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett KC with Ms A Ryan | Arnold Thomas & Becker |
| For the Defendant | Mr A Moulds KC with Ms A Wood | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1On 29 November 2017, the plaintiff, Ms Donna Nelson, was driving her car on Curr Road near Girgarre. At the intersection with Winter Road, a vehicle failed to give way and collided with her car (“the collision”).
2As a result of the collision, Ms Nelson suffered injury. In particular, she suffered a fractured left collarbone and left shoulder injury, (which I shall collectively refer to as “the left shoulder injury”). The fractured collarbone ultimately required surgery. This was undertaken on 14 August 2018.
3Ms Nelson is aged forty-eight years. She lives with her partner, Shane. Ms Nelson had a difficult upbringing. At age fifteen, she ran away from home because of an abusive environment. She worked in various unskilled jobs and did some volunteer work with deaf children. Her first child was born in 1994. Ms Nelson has two adult children. She was a single parent.
4Ms Nelson suffered a fractured left clavicle approximately ten years prior to the collision. She said that had healed and gave her no real problems prior to the collision.
5At the time of the collision, Ms Nelson was employed by Pickwick Group Pty Ltd (“Pickwick”). She was working as a cleaner at the Kyabram Police Station. Ms Nelson was working five or six days per week for two to three hours per day. She had only recently obtained this position. Previously, Ms Nelson had worked:
(a) in other jobs as a cleaner;
(b) as a personal care attendant; and
(c) as a fruit picker.
6Prior to the collision, Ms Nelson had not been a big earner. For the year ended 30 June 2017, she earned $7,587.[1] In the previous financial year, she earned $2,798.[2] In the years prior to the collision, Ms Nelson received the majority of her income from the Department of Health and Human Services (“DHHS”).[3]
[1]Transcript (“T”) 53, Lines (“L”) 6-10 and Plaintiff’s Court Book (“PCB”) 123
[2]T53, L3-5 and PCB 123
[3]PCB 123
7Ms Nelson said she had hoped to increase her hours with Pickwick.
8Ms Nelson said that, prior to the collision, she had enjoyed a range of physically-demanding recreational activities. These included:
(a) making furniture and woodworking;
(b) camping and fishing; and
(c) rock-and-roll dancing.
9As a result of the left shoulder injury, Ms Nelson was certified off work.
10Ms Nelson eventually returned to work in or about mid-2020. Her work since that time has included:
(a) working as a cleaner at the Rochester High School for a short time;
(b) cleaning public toilets in Moama and Echuca for a business called Rydal;
(c) working as a cleaner with the Kyabram Country Club (“the motel”) between February 2021 and November 2021.
11Ms Nelson has not worked since finishing at the motel. She said she had applied for jobs, but had not been able to get one.
12Since the collision, Ms Nelson has continued to receive the majority of her income from DHHS.[4]
[4]PCB 123
13Ms Nelson said that as a result of the left shoulder injury:
(a) she has suffered since the collision and continues to suffer ongoing pain and pain-related restriction;
(b) her physical capacity is limited;
(c) she is limited in the type of work which she can undertake; and
(d) the nature and extent of her recreational activities have been adversely impacted.
14Ms Nelson said that the left shoulder injury is a serious injury.
15Ms Nelson also said that the disfigurement she has been left with as a result of the surgical repair of her fractured left clavicle is a serious injury.
16The defendant, the Transport Accident Commission (“TAC”), said that neither the left shoulder injury nor the disfigurement are serious injuries.
The nature of this proceeding
17This is an application brought pursuant to s93(17) of the Transport Accident Act 1986 (as amended) (“the Act”). Ms Nelson relies upon both paragraph (a) and paragraph (b) of the definition of “serious injury” contained in the Act. That is:
(a) her left shoulder injury is a “serious long term impairment or loss of body function”; and
(b) the disfigurement, which runs from her left shoulder down towards her sternum, constitutes a “permanent serious disfigurement”.
18The question of whether an injury is “serious” for the purposes of s93(17) is to be answered in accordance with the narrative test laid down by the Full Court of the Supreme Court of Victoria in Humphries and Anor v Poljak:[5]
“… To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? … .”[6]
(Emphasis added.)
[5][1992] 2 VR 129 (“Poljak”)
[6]Poljak (ibid) at 140 (per Crockett and Southwell JJ)
19Crockett and Southwell JJ identified, in Poljak, that many disturbances are considerable, in the sense that they are “important” or “substantial” without being “very considerable”.
The issues in the application
20The TAC said:
(a) Ms Nelson’s credit is in issue. They said on the most favourable view, Ms Nelson’s evidence was unreliable;
(b) Ms Nelson failed to disentangle the consequences of her carpal tunnel syndrome from the consequences which she attributes to the left shoulder injury;
(c) any consequences flowing from the left shoulder injury were modest to moderate and certainly did not satisfy the serious injury test;
(d) the disfigurement was not that bad;
(e) the social-media evidence tended against Ms Nelson’s assertions of embarrassment or concern flowing from the scarring;
(f) the disfigurement did not satisfy the serious injury test.
21Thus, the issues for the Court to determine include:
(a) the impact of the video surveillance and the social-media materials;
(b) as to Ms Nelson’s credit and whether I can accept her evidence;
(c) which of the medical opinions should be accepted and the assistance they provide;
(d) disentanglement of the carpal tunnel condition and/or any other comorbidities suffered by Ms Nelson from the left shoulder injury;
(e) whether the left shoulder injury is a serious injury;
(f) whether Ms Nelson’s disfigurement is a serious injury.
Video surveillance, social media and credit
The basis for the TAC attack on Ms Nelson’s credit
22As in a great number of cases of this type, the credit and reliability of Ms Nelson is critically important.[7]
[7]See, for example, the analysis of the Court of Appeal in Johns v Oaktech Pty Ltd [2020] VSCA 10, particularly at paragraph [76].
23The TAC said that, while Ms Nelson’s case was not without some merit, her evidence was unreliable. The attack on Ms Nelson’s credit included:
(a) the video surveillance shown in the course of the application;
(b) various photographs and entries on Ms Nelson’s social-media platforms;
(c) assertions that the level of disability and consequences alleged by Ms Nelson in her history to doctors was not borne out given the film, social-media materials and, indeed, aspects of her own oral evidence;
(d) that her assertions in respect to working increased hours were unrealistic and not supported by independent evidence;
(e) that her assertions that she would cover up her scarring due to embarrassment and distress were not true; and
(f) submissions that Ms Nelson changed her affidavit and oral evidence, having viewed the surveillance film.
24Referring firstly to the video surveillance.
25This video shown to the Court included:
(a) 3 January 2020 – Ms Nelson carrying what was thought to be rubbish, driving, attending to her broken-down car, and holding a Coke bottle half full of water;
(b) 5 June 2020 – shopping and, in particular, pointing to an item above her head in an aisle;
(c) 24 July 2020 – talking with friends, assisting in moving a fridge and a freezer (“the fridges”), touching her head/hat with her left hand, going to the supermarket and carrying shopping bags;
(d) 9 August 2020 – going to the supermarket and carrying shopping bags;
(e) 19 September 2020 – getting in/out of a ute and assisting/removing items from the back of the ute;
(f) 25 September 2020 – getting in/out of a ute.
26Specifically, the TAC relied upon video of Ms Nelson:
(a) helping manoeuvre the fridges;
(b) raising her left arm above head height to point to an item in a supermarket; and
(c) raising her left hand to head height to touch her head/hat.
27Further, the TAC said that the film generally showed Ms Nelson functioning in a normal manner and certainly at a greater level than deposed in her first affidavit.
28The TAC said that the film (particularly the manoeuvring of the fridges):
(a) contradicted Ms Nelson’s affidavit evidence; and
(b) was not consistent with her described levels of disability.
29Put bluntly, the TAC said that Ms Nelson exaggerated the true extent of her injuries and the Court should be satisfied that her evidence was, at the least, unreliable.
30It is appropriate to review Ms Nelson’s affidavit evidence and histories to doctors as a part of the process of evaluating the validity of the TAC criticisms.
31Ms Nelson, in her first affidavit of 26 May 2020, said:
(a) she found lifting, pulling, pushing or repetitive movement of her left arm caused her pain;[8]
(b) she “generally” tried to limit herself to lifting a few kilograms;[9]
(c) she was able to cope with shopping;[10]
(d) she was able to drive;[11] and
(e) she was not able to use her left arm freely, and that if she lifted her left arm above shoulder height or behind her back, it was very painful.[12]
[8]Paragraph [19], PCB 15
[9]Ibid
[10]Paragraph [20], PCB 15
[11]Paragraph [21], PCB 15
[12]Paragraph [18], PCB 15
32In her second affidavit of 29 November 2022, Ms Nelson said:
(a) her left shoulder remained problematic;[13] and
(b) in the context of her previous aged care and disability work, she can no longer physically lift a person, as she did not have the strength in her left arm.[14]
[13]Paragraph [2], PCB 19
[14]Paragraph [4], PCB 19
33Referring now to the medical reports where relevant histories are reported by doctors.
34Ms Nelson told:
(a) Dr Joseph Slesenger:
(i)she was weaker on the left side and tended to lift on the right (dominant) side;[15]
(ii)she avoids heavy manual tasks;[16]
(b) Mr Michael Dooley that she struggles with lifting;[17]
(c) Dr David Freilich:
(i)she can use her left arm “to a certain extent”;[18]
(ii)she had difficulty lifting her left arm;[19]
[15]PCB 84
[16]PCB 85
[17]Amended Defendant’s Court Book (“DACB”) 23
[18]DACB 42
[19]Ibid
(d) Mr Ash Chehata that she continued to struggle to gain her range of movement;[20] and
(e) Dr Symon McCallum that she feels weak around the left shoulder and biceps.[21]
[20]PCB 93
[21]PCB 98
35Mr Brett conceded the manoeuvring of the fridges to be at odds with Ms Nelson’s affidavit evidence.[22]
[22]T86, L29-31
36Having noted this concession what do I make of the affidavits?
37Ms Nelson, in her affidavit evidence and histories to doctors, did not say she could not and did not lift heavy items. What she did say was:
(a) she had reduced left arm strength;
(b) she tried to avoid heavy lifting;
(c) she generally tried to limit her lifting to 2 kilograms;
(d) physical activities did cause her pain.
38Ms Nelson did not play any part in the process of placing the fridges on the trailer at the commencement of the video. There were other people present who helped.
39Ms Nelson did assist her partner, Shane, in manoeuvring the fridges at the final destination. That is clear. Of the actual task, she said in her oral evidence:
(a) that she and Shane were getting furniture together in order to set up their own home. She said she was very excited;[23]
(b) that there was no one else at the property who could help;[24]
(c) she helped because she could not have Shane do it on his own;[25]
(d) that she took the lighter end of the fridge;[26]
(e) the fridge was awkward rather than heavy to manoeuvre;[27] and
(f) that it was a reasonably heavy task.[28]
[23]T50, L28-30
[24]T50, L31 – T50, L1
[25]T51, L4-5
[26]T34, L21 – T35, L1
[27]T36, L2
[28]T36, L26-29
40Ms Nelson went on to say:
(a) she was in pain after assisting with the manoeuvring of the fridges;[29] and
(b) that undertaking activities such as manoeuvring a fridge was not something she could do on a regular basis.[30]
[29]T51, L3
[30]T51, L2
41From observing the film, I note that Ms Nelson:
(a) was bent over;
(b) used two hands;
(c) did not engage in activities above shoulder height;
(d) was engaged in the process only for a short period; and
(e) provided limited assistance to Shane. Indeed, Shane undertook the task by himself for the majority of the process.
42Moving now to the video depicting Ms Nelson pointing with her left hand above shoulder height in the supermarket.
43True it is, that Ms Nelson pointed to something above shoulder height. However, on observing the film, her left arm was up for the briefest of moments.
44Ms Nelson said she pulled her left hand back down because of the restriction in movement.[31]
[31]T48, L10-13
45Referring to Ms Nelson touching her head/hat, I note:
(a) she touched her head/hat for the briefest of moments;
(b) she agreed that she appeared to move easily and spontaneously;[32] and
(c) she said that she pulled her left hand down quickly because of the restriction in her shoulder.[33]
[32]T36, L23-25
[33]T48, L1-5
46Moving now to the film generally. There was a lot of video showing Ms Nelson shopping, driving a car and carrying items. None of these activities undertaken by Ms Nelson:
(a) appeared to be heavy in nature;
(b) put her left arm/shoulder under any particular or significant stress;
(c) went beyond what had been said in the affidavit evidence that she was undertaking.
47Moving now to the social media and, in particular, the photographs of Ms Nelson which revealed the scar.
48Of the scarring, in her affidavit evidence, Ms Nelson said:
(a) she thought the scar was “ugly”;[34]
(b) she felt self-conscious of the scar;[35]
(c) she tended to wear clothing that covered the scar;[36]
(d) she wore a t-shirt when swimming to cover the scar;[37]
(e) she was self-conscious of how her shoulders did not align;[38] and
(f) items such as clothes, bras, backpacks and handbags which rubbed on the scar area caused irritation.[39]
[34]Paragraph [26], PCB 16
[35]Paragraph [26], PCB 16-17
[36]Paragraph [26], PCB 17
[37]Paragraph [26], PCB 17 and paragraph [12] and PCB 21
[38]Paragraph [13], PCB 21
[39]Paragraph [11], PCB 21
49The numerous photographs in evidence plainly show the area of the scar uncovered. On the face of it, these photographs appear to be at odds with Ms Nelson’s affidavit evidence.
50In her oral evidence, Ms Nelson sought to explain the apparent contradiction. In cross-examination, she said:
Q:“All right. Could we look at p51, please. Yes. Could we focus on the photograph, the second – that one, yes, please. Now, that’s a photograph which shows the scar very clearly?---
A: Yes.
Q: Why did you put that photograph in?---
A: Because I was - I was trying to get myself to feel better.
Q: How do you mean?---
A:It’s taken a long time for me to accept the way I look and that particular day, I remember it well. I was with my best friend and I’d gotten out of a very bad relationship and I was happy.
Q: All right. How do you feel about the scar now?---
A: I still don’t like looking at it.
Q:You were shown a number of photographs where you are wearing either strapless tops or just a light strap?---
A: Yes.
Q:But you had also said to my learned friend that there are times when you’d change what you wear because of your scar?---
A: Yes.
Q: How do those two things sit together?---
A:Most of the photos that I’m in a singlet top that’s about 43 degrees - that’s an average summer temperature where I live, normally. And some days I have good days, and some days I have bad when it comes to my – mentally.
Q: That’s - and does that affect your attitude towards showing your scar?---
A: Yes.”[40]
[40]T49, L14 – T50, L6
51Having observed Ms Nelson give this oral evidence, I formed the view that her explanation was heartfelt and genuine.
52I accept there is variability in the level of Ms Nelson’s self-consciousness about the scarring. There are clearly times when she makes no attempt to conceal it. I accept this does run contrary to the affidavit evidence.
53Moving now to the attack on Ms Nelson’s evidence that, but for the injuries sustained in the collision, she would have been working greater hours/earning greater income.[41]
[41]Paragraph [27] of Ms Nelson’s first affidavit at PCB 17
54Ms Nelson said that, after the collision, her brother had taken over her shift at the Kyabram Police Station. She said that her brother had subsequently secured additional venues with Pickwick. Ms Nelson asserted that, but for her injuries, she could have obtained work at those venues and earned $980 per week. The TAC said this was unsubstantiated and went to Ms Nelson’s tendency to exaggerate and seek to better her case without foundation.
Conclusions on credit
55There were numerous grounds relied upon by the TAC in their attack on Ms Nelson’s credit.
56What do I make of those attacks by the TAC in the context of both the specific matters and in a global sense?
57Some preliminary observations.
58Firstly, I note that Ms Nelson’s evidence was well tested by the TAC. The TAC had obtained ninety-five hours of surveillance over fifteen days. Further, Ms Nelson was subject to extensive and capable cross-examination.
59Secondly, it is appropriate that I record my observations of Ms Nelson in the witness box. It is my conclusion that, in general terms, Ms Nelson gave her oral evidence in a straightforward and genuine manner. I do not consider that, when giving her oral evidence, she sought to embellish her case. Indeed, Ms Nelson was prepared to make concessions against interest. Importantly, a number of these concessions were made in circumstances where there was no material which otherwise established matters to the contrary.
60Some of the examples of concessions against interest included:
(a) that she did not have any trouble driving a car;[42]
(b) that one reason she would not be able to do woodworking was because her ex-partner had kept all her equipment;[43]
(c) that she leads a normal social life;[44] and
(d) that she will only vacuum for a short period of time because she hates it.[45]
[42]T29, L17-18
[43]T44, L22 – T45, L4
[44]T18, L16-20
[45]T48, L27
61Moving back to the TAC criticisms of Ms Nelson.
62Much was made by the TAC of Ms Nelson assisting her partner with the fridge. I accept that this is at odds with the tenor of her first affidavit. However, having considered all the evidence, this needs to be put into the context of:
(a) A person who had returned to work as a cleaner. While Ms Nelson said she had work restrictions, she was openly undertaking such work as a school cleaner, cleaning public toilets, and undertaking cleaning in a motel and
(b) In her affidavit evidence, and to the doctors, she used terms such as:
(i)she avoids;
(ii)generally tries to limit;
(iii)does with difficulty.
63The video surveillance of Ms Nelson manoeuvring the fridges is of concern to me, especially in the context of her first affidavit.
64I found Ms Nelson’s explanation of why she helped manoeuvre the fridges to be reasonable. I accept:
(a) Ms Nelson’s explanation that she generally did not engage in this type of activity;
(b) Ms Nelson experienced increased pain as a result.
65I pause here to say that I accept Ms Nelson to be a person who has endeavoured to remain as active and useful in life as the left shoulder injury allows. Indeed, I accept her to be a stoic person.
66In Haden Engineering Pty Ltd v McKinnon,[46] Maxwell P of the Court of Appeal said:
“… the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.”
[46](2010) 31 VR 1 at paragraph [13] (“Haden Engineering”)
67While the footage of the manoeuvring of the fridges does not assist Ms Nelson’s case, having weighed up all of the evidence and having observed Ms Nelson in the witness box, I do not accept that this video surveillance destroys her credit.
68The other two specific incidents relied upon by the TAC, when put into the context of the balance of the evidence, do not trouble me as much.
69In the context of her capacity to move her left arm, the TAC spent quite some time cross-examining Ms Nelson on what Dr Freilich recorded about her use of her left shoulder/arm. In particular, lifting her left arm and the pain which she suffered. In cross-examination Ms Nelson said:
Q:“No, that’s all right. I’m just quoting what he says. He says you told him that it hurts you to lift your arm, left arm to the shoulder?---
A: Yes.
Q:To just go like that, it hurts you?---Yes. When I’ve got to do – he had me do different actions and certain ones hurt.”[47]
[47]T44, L7-12
70Ms Nelson did not maintain that every movement of her arm caused her pain. It was “certain ones”.
71Again, in the context of a person who is back at work, and on her own admission undertaking a range of activities, I do not accept that momentarily lifting her arm above shoulder height in circumstances where she said it caused pain, in itself, makes the balance of Ms Nelson’s evidence unreliable.
72While the video surveillance may go to the seriousness of Ms Nelson’s injuries, I do not accept, based on the film, that Ms Nelson’s evidence, in its totality and in particular her oral evidence, is rendered unreliable.
73Referring to the social media. I do not accept, in general terms, that wearing clothes that expose the scarring, and posting photographs of the type in evidence, is mutually exclusive to Ms Nelson feeling that the scarring is ugly, embarrassing, and that she would prefer not to have it.
74I consider Ms Nelson’s explanation provided in her oral evidence to be reasonable. I accept this explanation:
(a) provided greater insight in respect to the true state of affairs; and
(b) contradicted the bland assertions contained in the affidavit evidence.
75Finally, the attack based on Ms Nelson’s potential earnings.
76I accept that Ms Nelson’s evidence as to the potential to obtain further work may be:
(a) aspirational; and
(b) under close scrutiny, overly optimistic.
77However, I do not accept that that, in itself, means that she is knowingly fabricating evidence. I accept, in her mind, there is a possibility of such a scenario eventuating.
78The TAC quite properly challenged the veracity of Ms Nelson’s evidence. As I have noted already, in the witness box Ms Nelson was well tested by Mr Moulds. I accept that there are a number of assertions in Ms Nelson’s affidavit evidence which overstated the impact of her injury. However, I do not consider, in all of the circumstances, that is fatal to Ms Nelson’s credit, when considered in the context of the totality of the evidence.
79Having been in the unique position of observing Ms Nelson in court, and having considered all of the evidence, I do not accept the TAC’s submission that Ms Nelson’s evidence ought be treated by the Court as being generally unreliable. As I have already set out in this judgment, I accept Ms Nelson gave her oral evidence in a straightforward and genuine manner.
The medical evidence
80I shall firstly deal with the treating medical practitioner evidence.
Dr Ghaleb Jaber, general practitioner
81Dr Jaber said that Ms Nelson had been seen by different general practitioners at the Scope Medical Centre in Kyabram. Dr Jaber started seeing her on 19 April 2022. Dr Jaber provided a report dated 21 April 2023.
82Dr Jaber said Ms Nelson injured her left clavicle in the collision. He said, because of the non-union of this fracture, Ms Nelson progressed to surgery which was undertaken by Mr Ian Critchley, orthopaedic surgeon, at the Shepparton Private Hospital.
83Dr Jaber said:
(a) Ms Nelson’s clavicle fracture had stabilised;
(b) Ms Nelson complained of numbness along her left shoulder, left forearm and left hand;
(c) Ms Nelson required a nerve-conduction test to exclude left Carpal Tunnel Syndrome;
(d) Ms Nelson required ongoing analgesia and physiotherapy; and
(e) Ms Nelson was independent with activities of daily living.
Mr Ian Critchley, orthopaedic surgeon
84I had in evidence from Mr Critchley a report dated 20 December 2019, as well as a series of letters which he forwarded to the Scope Medical Centre.
85Mr Critchley operated to repair Ms Nelson’s fractured clavicle on 14 August 2018.
86Prior to the surgery, Mr Critchley said that:
(a) Ms Nelson’s left clavicle fracture was initially treated conservatively;
(b) Ms Nelson’s symptoms persisted and serial x-rays showed the fracture was not uniting; and
(c) as Ms Nelson had a mobile persistent fracture, she required internal fixation of the clavicle fracture with bone grafting.
87Subsequent to the surgery, Mr Critchley said he reviewed Ms Nelson on numerous occasions. His final review was 6 February 2019. Mr Critchley said, at that time:
(a) x-rays revealed the clavicle fracture had united;
(b) Ms Nelson had a good range of movement of her left shoulder; and
(c) Ms Nelson had been receiving physiotherapy treatment.
88Mr Critchley said that, during the time of his involvement with Ms Nelson, she suffered:
(a) pain in the region of the fracture;
(b) stiffness of her left shoulder; and
(c) some degree of loss of motion that may still exist.
89As to the long-term prognosis, Mr Critchley said:
(a) Ms Nelson may have difficulty in work situations that involve persistent elevation of her left arm above her head;
(b) there should be no loss of weight-bearing function of the shoulder; and
(c) Ms Nelson may require the removal of the plate as often soft tissues overlying the plate atrophy.
The medico-legal opinions
90I will review the medico-legal evidence in chronological order.
Associate Professor Richard Stark, neurologist
91Associate Professor Stark examined Ms Nelson for the TAC on 29 August 2019 and provided a report of that date.
92Associate Professor Stark recorded the history of the collision, the fractured left clavicle and the “substantial delay” in arranging the surgery.[48]
[48]DACB 18
93Relevant to the left clavicle and left shoulder, Associate Professor Stark said:
“The left clavicle is still painful. The scar is visible and there is an area of altered sensation over the lateral aspect of the upper arm over the upper half of the deltoid. This has been present only since the surgery on the clavicle.”[49]
[49]DACB 18
94On clinical examination, Associate Professor Stark’s findings included:
“… There was an area of altered sensation lateral to the surgical scar over the clavicle and extending down over the superior and anterior quadrant of the skin over the deltoid muscle. I thought that this distribution was consistent with the distribution of the supra-clavicular nerve branches.”[50]
[50]DACB 19
95Associate Professor Stark also said:
(a) the neurological examination of Ms Nelson’s lower limbs was normal; and
(b) that Ms Nelson had suffered a soft-tissue injury to her neck which had triggered some post-traumatic headaches.
96Relevant to this application, it was Associate Professor Stark’s diagnosis that Ms Nelson:
“… has also sustained a fractured clavicle and there has been some injury to branches of the supra-clavicular nerves during the course of surgical repair.”[51]
[51]DACB 20
97When making his impairment assessment, Associate Professor Stark reiterated that Ms Nelson was suffering sensory loss in the distribution of the supraclavicular nerves.
Dr Joseph Slesenger, specialist occupational physician
98Dr Slesenger assessed Ms Nelson on behalf of her solicitors on 2 March 2020. At that time, Dr Slesenger said:
“Ms Nelson has been left with residual scarring over the left anterior shoulder and restricted range of movements in the shoulder; in particular, difficulty laterally elevating and forward reaching. She advised that she is weaker on the left side and tends to lift on the right (dominant) side. She cannot lie on the left side. She has difficulty reaching the back of her head and the small of her back.”[52]
[52]PCB 84
99Ms Nelson, at the time of this assessment, was undertaking a self-managed exercise program which her physiotherapist had taught her.
100Dr Slesenger said that Ms Nelson had told him that, while she undertakes domestic duties, she tries to avoid heavy manual tasks, including the heavier aspects of shopping, cooking, cleaning and vacuuming.
101On examination, Dr Slesenger noted an incisional scar measuring 9.5 centimetres. He said that was well healed.
102Dr Slesenger said there was tenderness on palpation over the lateral clavicle, the acromioclavicular joint and the superior aspect of the shoulder. Dr Slesenger found some decreased movement in the left shoulder joint. On neurological examination, he said there was reduced power in the left shoulder which he rated as 3+/5. Dr Slesenger also noted sensory loss over the index and middle finger and the pectoralis region, the super clavicular and the lateral clavicular area.
103Dr Slesenger reported Ms Nelson complaining of residual left shoulder pain, stiffness and a restricted range of movement.
104Dr Slesenger felt Ms Nelson would have difficulty returning to work. Dr Slesenger recommended that Ms Nelson adhere to the following restrictions:
· avoid push, pull, carry and lift over 5 kilograms
· avoid sustained forward reaching
· avoid over-shoulder reaching
· avoid repetitive shoulder tasks.
Mr Ash Chehata, orthopaedic upper limb surgeon
105Mr Chehata assessed Ms Nelson on behalf of her solicitors on 26 May 2020.
106Mr Chehata said that Ms Nelson continued to struggle with gaining her range of movement and now has ongoing capsulitis in the left shoulder, with ongoing reduced sensation in the anterior shoulder, and with intermittent pins and needles and numbness in the entire upper limb.
107On clinical examination, Mr Chehata found that Ms Nelson certainly had sensitivity and allodynia across the entire left clavicle. He said that Ms Nelson had neuropathic-style symptoms anteriorly, with pins and needles across the anterior part of the shoulder, down to the hand and wrist.
108Mr Chehata concluded that Ms Nelson was suffering capsulitis in the left shoulder and a pain syndrome as a result of the clavicle fracture.
109Mr Chehata said that the prognosis was guarded and the condition had stabilised.
Dr Symon McCallum, pain physician and specialist anaesthetist
110Dr McCallum examined Ms Nelson on behalf of her solicitors on 5 August 2021.
111Dr McCallum recorded a history of:
(a) ongoing left arm pain;
(b) a diagnosis of scapular capsulitis; and
(c) pain around the trapezium and clavicular and into the left shoulder.
112At this time, Ms Nelson was working as a housekeeper in a motel.
113Dr McCallum recorded that there were a range of activities which increased Ms Nelson’s pain or where she had restrictions. These included:
(a) driving long distances increased pain;
(b) struggling to wash her hair;
(c) vacuuming being painful;
(d) no longer making furniture or going dancing; and
(e) struggling with some chores.
114Dr McCallum obtained a history of Ms Nelson feeling depressed and having mood instability.
115Dr McCallum concluded that Ms Nelson was suffering post-traumatic left clavicle fracture pain. He was also concerned about the possibility that Ms Nelson was suffering from left Carpal Tunnel Syndrome. Dr McCallum said this aspect of her presentation needed further investigation.
116Dr McCallum considered Ms Nelson’s condition had stabilised.
117Of the surveillance of Ms Nelson moving the fridge, he said:
“I have reviewed the surveillance investigations. The majority do seem to be irrelevant.
I did ask Ms Nelson about the carrying of the fridge. She told me she did not have the full weight on the left arm and was guiding the fridge. I am not convinced that this surveillance investigation reveals Ms Nelson as malingering. I am also not convinced that the surveillance investigation means that Ms Nelson could work in her old job fulltime with full duties.”[53]
[53]Paragraph [g)], PCB 101
Dr Justin Lewis, consultant psychiatrist
118Dr Lewis examined Ms Nelson on behalf of her solicitors on 17 August 2021.
119Dr Lewis said that Ms Nelson had partial remitted Post-Traumatic Stress Disorder and an alcohol misuse syndrome.
120I pause here to note that this is not a paragraph (c) case. Any psychological consequences can only be relevant in the context of Richard v Wylie.[54]
[54](2000) 1 VR 79
Mr John Crock, plastic and reconstructive surgeon
121Mr Crock examined Ms Nelson for her solicitors on 31 May 2022.
122Mr Crock had been provided with a great deal of background medical material and the surveillance reports dated 24 January 2020, 17 August 2020 and 30 September 2020.
123Mr Crock obtained a history from Ms Nelson of ongoing pain around the left collarbone which extended through to her back. He also obtained the history of referred pain and sensation down the left arm to the hand.
124Mr Crock said that Ms Nelson had a 13-centimetre scar running along her left clavicle which is 5 millimetres wide. He said most of the scar looks soft, supple and non-adhered to the underlying tissue. There was no evidence of ulceration.
125Mr Crock said that Ms Nelson had told him:
(a) the scar was hypersensitive and it hurt if rubbed;
(b) washing and rubbing the scar with a towel was uncomfortable;
(c) some clothes she wore caused discomfort; and
(d) the scar did not affect other areas of activities of daily living.
126Mr Crock said he obtained a history from Ms Nelson that it was her left shoulder pain that affected her activities of daily living. He said activities involving the left upper shoulder girdle were uncomfortable and various activities precipitated pain. Such activities included:
(a) carrying;
(b) lifting things over her head;
(c) pushing and pulling; and
(d) climbing and exercising.
127Mr Crock said that Ms Nelson had told him that her social and recreational activities had been impacted by her left shoulder and she found it harder to do her job.
128Mr Crock considered Ms Nelson, as a result of her fractured left clavicle, had been left with a brachial plexus neuritis. Mr Crock said that she also had been left with a sensitive scar. Mr Crock said it was his opinion Ms Nelson’s current conditions had been caused by the collision.
129Mr Crock said that he did not believe scar revision would improve the appearance of the scar, nor would it help with the sensitivity.
Dr David Freilich, neurologist
130Dr Freilich assessed Ms Nelson on behalf of her solicitors on 31 January 2023.
131Dr Freilich obtained the history of the fractured left clavicle and the resultant surgery. He said Ms Nelson told him, after the surgery, the pain had improved but did not fully resolve.
132Dr Freilich obtained a history of ongoing pain in the left chest, left shoulder and upper arms. He said Ms Nelson told him that she takes Panamax. He said she also complained of numbness across the left chest, left shoulder, left axilla and left trapezius.
133Dr Freilich said that Ms Nelson had told him that her use of her left hand/arm was impaired. He said that she told him that she used her left hand/arm “to a certain extent”.[55] She told him she had difficulty:
(a) hanging out washing;
(b) lifting her left arm up;
(c) brushing her hair or doing up her bra; and
(d) lifting her left arm to shoulder height.
[55] DACB 42
134Dr Freilich said the surgical scar was about 10 centimetres in length, medial to the left shoulder at an angle. He said, on examination, the scar was tender.
135Dr Freilich said, on clinical examination, Ms Nelson was limited to lifting her left arm at the shoulder to about 100 degrees. Ms Nelson said it got stuck. Dr Freilich said the left arm power remained normal.
136Dr Freilich reviewed numerous medical reports and surveillance. In particular, Dr Freilich referred to the opinion of Associate Professor Stark, who he said “refers to the fractured clavicle and some injury to the branches of the supraclavicular nerves during the course of surgical repair”.[56]
[56]DACB 43
137Dr Freilich said Ms Nelson was not complaining of any specific neck symptoms. Dr Freilich said, of Ms Nelson’s ongoing neurological problems, there were a number of possible diagnoses. He said they had not been investigated. The options included carpal tunnel, radiculopathy and brachial neuropathy.
138Dr Freilich said that, as the injury occurred over five years prior to his examination, he considered Ms Nelson’s condition is permanent.
139In a supplementary report dated 18 May 2023, Dr Freilich said, having been provided with nerve conduction tests which had been undertaken, he considered Ms Nelson was suffering Carpal Tunnel Syndrome. He said it was not clearcut that this condition was related to injuries sustained in the collision.
140I pause here to note that Mr Brett appropriately conceded on Ms Nelson’s behalf that the Carpal Tunnel Syndrome was not related to the collision and did not form part of this application.[57]
[57]T2, L23-27
Mr Michael Dooley, orthopaedic surgeon
141Mr Dooley examined Ms Nelson on behalf of the TAC on 20 February 2023.
142Mr Dooley obtained a history of the collision and the fractured clavicle. He said Ms Nelson “underwent open reduction and internal fixation using local bone graft.”[58]
[58]DACB 23
143Mr Dooley recorded the present history provided by Ms Nelson as including:
“Ms Nelson said that she notes ongoing pain in the region of her left clavicle. She struggles with lifting. She is right-handed. She said it feels as though her left shoulder locks at times. The fixation plate and screws remain in situ. … .”[59]
[59]DACB 23
144On examination, Mr Dooley said there was a healed surgical scar just inferior to the majority of the length of the left clavicle. He said there was mild tenderness to palpation.
145Mr Dooley said there was a limited range of movement of Ms Nelson’s left shoulder compared to the right. He said Ms Nelson restricted attempts to passively abduct and forward flex the left shoulder beyond the active range of movement.
146It was Mr Dooley’s diagnosis that Ms Nelson suffered a fractured left clavicle. He said this was either:
(a) an undisplaced new fracture through what was previously an ununited midshaft fracture of the left clavicle; or
(b) an aggravation through a non-union of the clavicle.[60]
[60]Paragraph [3.8], Diagnoses, DACB 24
147I pause here to note that the TAC did not assert that the previous fracture which Ms Nelson had sustained played any part in Ms Nelson’s presentation. Indeed, Mr Moulds said “it seems to be a very remarkable coincidence only”.[61] Mr Moulds went on to say:
“… it appears that there’s no evidence of any vulnerability from that or an aggravation of a pre-existing problem. There’s a bit of a mention of it from someone but it goes by the wayside.”[62]
[61]T4, L10-11
[62]T4, L11-14
148Returning back to Mr Dooley’s evidence. Mr Dooley said that Ms Nelson complained of ongoing pain in the region of her left shoulder. He said she told him:
(a) she had difficulties with activity; and
(b) there was a tendency for the left shoulder to lock up.
149Mr Dooley, as a part of his analysis of this matter, said:
“… Following recovery from a fracture of the midshaft of the clavicle, whether this be managed conservatively or operatively, patients might note some aching in the region of the clavicle. They can note some irritation in terms of singlets, bra straps etc, rubbing on the area. Generally they have a good range of motion of the shoulder joint with mild restriction at most. Some patients might note difficulty with a lot of activity at and above shoulder level. Within the attached documentation, I note that Ms Nelson has been diagnosed with depression and anxiety. From an orthopaedic point of view, I believe that the constancy and intensity of her ongoing pain and her described disability are greater than one would expect to see for her organic condition. I believe that she has had a psychological reaction to her situation and that this reaction does influence her ongoing symptoms. I do not believe that she requires specific ongoing orthopaedic treatment. I do not believe that she has capsulitis of her shoulder or brachial plexus neuritis.”[63]
[63]DACB 25
150Mr Dooley, when asked if Ms Nelson’s physical injuries directly related to the collision would they in any way interfere with her domestic activities, said:
“At times, Ms Nelson might note some difficulty with a lot of heavy physical activity and a lot of activity at and above shoulder level. This restriction relates to the left clavicular fracture.”[64]
[64]DACB 26
151Mr Dooley went on to say that these restrictions would also impact upon Ms Nelson’s:
(a) leisure activities; and
(b) work capacity.
152Mr Dooley provided a supplementary report dated 24 May 2023. He was asked to comment on further materials which had been provided, including reports from Dr McCallum, Dr Freilich and the nerve-conduction test.
153Mr Dooley confirmed that he stood by his previous opinion expressed in his 23 February 2023 report.
154Mr Dooley said that he thought the Carpal Tunnel Syndrome diagnosis was a possibility, but definitely not a probability. Mr Dooley said he anticipated Ms Nelson would be offered a carpal tunnel decompression. He said this would not alter the numbness and pain which was felt above the lower forearm.
Conclusion in respect to medical opinions
155Ms Nelson suffered a fractured clavicle as a result of the collision. Notwithstanding Mr Dooley’s endeavour to implicate the previous fracture, the TAC conceded that was of no relevance to this application.
156I accept that, initially, the fracture did not heal and, as Mr Critchley said, Ms Nelson was left with a mobile persistent fracture. There was a substantial delay between the collision and the surgery. A period of nearly ten months. Ms Nelson said she was in a lot of pain between the collision and the surgery. I accept this to be so.
157Ms Nelson required internal fixation with bone grafting. The radiology taken subsequent to the surgery shows a lengthy plate which is fixed by eight screws.[65] Viewing this radiology provided a greater insight into the extent of the surgery undertaken. The plate is clearly a significant piece of metalware. Mr Critchley said this may require removal should it lead to soft-tissue atrophy.
[65]See PCB 45-46
158Ms Nelson said that, subsequent to the surgery, she had, in addition to the pain in the left clavicle, a feeling of numbness over this area and down into her arm.
159Ms Nelson described this altered sensation:
“HIS HONOUR:
Perhaps before you finish and before Mr Moulds cross‑examines it might be helpful just to have the plaintiff describe the area of numbness or altered sensation around the clavicle area.
MR BRETT (to witness):
Q:Could you just tell His Honour where you feel strange and in what area it’s strange?---
A:So it’s in around about the beginning of the scar and right in the centre is here there’s no feeling, like, I’ve been pinpricked by doctors and I can’t feel it and the sensation goes up to the top of my shoulder and then across to the end of my shoulder.
HIS HONOUR:
For the purposes of the transcript, the plaintiff had commenced the indication at the start of the scar in the middle of the chest and indicated that the altered sensation went lateral to the top of her left shoulder. A fair description?
MR MOULDS:
Yes, Your Honour.
MR BRETT:
Yes, thank you.
HIS HONOUR:
Thank you.”[66]
[66]T8, L25 – T9, L12
160I accept that Ms Nelson suffers the sensory disturbance, as described.
161There are differing analyses in the medical evidence in respect to the nature and cause of the sensory disturbance.
162Of the varying opinions, I prefer that of Associate Professor Stark. I accept his findings on clinical examination which are consistent with Ms Nelson’s oral evidence. I accept Associate Professor Stark’s evidence that, on his examination and findings, the complaints made by Ms Nelson were consistent with the distribution of the supraclavicular nerve branch.
163I accept that Ms Nelson has developed Carpal Tunnel Syndrome which is not related to the collision. I accept this impacts her left wrist and hand causing pain and impaired function. However, as Mr Dooley said, I accept this condition would not impact her left arm higher than her forearm.
164I shall make further comment on the Carpal Tunnel Syndrome later in this judgment when I deal specifically with issues of disentanglement.
165Moving now to the pain and restriction complained of by Ms Nelson in the area of her left clavicle/left shoulder and left arm.
166Again, there is dispute as to the mechanism and nature and extent of the pain and restriction complained of by Ms Nelson resulting from the left shoulder injury.
167Mr Dooley was prepared to accept that an injury of the nature of Ms Nelson’s may result in:
(a) aching in the region of the clavicle;
(b) mild restriction of left shoulder motion; and
(c) difficulty when undertaking a lot of activity.
168However, Mr Dooley said the consistency and intensity of the pain, and Ms Nelson’s described disability, was greater than he would expect for an organic condition. Mr Dooley said psychological reaction was influencing the symptoms. Mr Dooley did not accept a diagnosis of capsulitis or brachial plexus neuritis.
169Mr Chehata concluded that Ms Nelson’s ongoing complaints of pain and restriction were due to left shoulder capsulitis and a pain syndrome resulting from the left clavicle fracture.
170Dr McCallum said that Ms Nelson was suffering post-traumatic left clavicle fracture pain. He noted a diagnosis had been made of scapular capsulitis.
171Whatever the precise mechanism, there is baseline agreement in the medical evidence that the left shoulder injury is likely to have caused and/or is in fact causing:
(a) a level of pain;
(b) some restriction in movement; and
(c) an impairment in her function when undertaking a lot of activity.
172As to Mr Dooley’s implication of psychological reaction, I do not accept this. He is on his own in making such conclusion. As I have said earlier in this judgment, I accept Ms Nelson to be generally reliable and her oral evidence to be genuine and without embellishment.
173I accept that there is a proper organic basis for complaints of pain and pain-related restrictions flowing from a fractured clavicle, such as suffered by Ms Nelson.
174I accept that, in Ms Nelson’s particular case, the weight of the medical evidence is to the effect that there is an organic basis for the complaints of pain, sensory disturbance and pain-related restriction made by her.
Disentanglement
175As properly conceded by Mr Brett, and based on the medical evidence, I accept:
(a) Ms Nelson suffers Carpal Tunnel Syndrome; and
(b) this condition is not related to the collision.
176That the consequences of the Carpal Tunnel Syndrome must be disentangled is clear.[67] Likewise, the process to be followed in disentanglement is well established.[68]
[67]Peak Engineering & Anor v McKenzie [2014] VSCA 67
[68]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309. See the analysis in paragraphs [25]-[35].
177While I will make further specific comments later in this judgment when assessing consequences, lest there be any doubt, I disregard any pain, restriction and consequences relied upon by Ms Nelson in respect to her left hand/wrist. In saying this, I accept the observation made by Mr Dooley that the Carpal Tunnel Syndrome will not impact on matters above the left forearm.
Is the left shoulder injury a serious injury?
178This is a range case.
179I am assisted in my analysis by the observations and process set out by Maxwell P in Haden Engineering.
180I accept Ms Nelson’s complaints of pain.
181I accept that Ms Nelson, between the collision and the surgery, was suffering a lot of pain. That is hardly surprising in the circumstances where she had, as described by Mr Critchley, a mobile fracture of her left clavicle.
182Ms Nelson underwent, what I accept, was a complex surgical procedure. The radiology shows a large plate and eight screws which were inserted during the surgery. There was also bone grafting.
183Subsequent to the surgery, and to the time of the hearing, there has been, I accept:
(a) some improvement in Ms Nelson’s pain levels; and
(b) ongoing altered sensation, which I accept to be a result of the damage to the supraclavicular nerve branches.
184Moving now to Ms Nelson’s current complaints of pain.
185Ms Nelson said she continued to have pain in the left chest, left shoulder and left upper arm. Ms Nelson said different actions of lifting her arm caused her increased pain. There are times when the left shoulder locks up. She said that she continues to take Panamax for pain management.
186I accept that Ms Nelson:
(a) has and continues to suffer pain due to the left shoulder injury;
(b) has a level of impaired movement in the left shoulder;
(c) has difficulty with heavy, physical activities involving her left arm/shoulder; and
(d) will suffer increased pain during and after strenuous activities involving her left arm/shoulder.
187While I will expand on these findings, I also accept that Ms Nelson’s left shoulder-related pain does impact upon her capacity to undertake:
(a) work of a physical nature;
(b) some domestic activities, particularly of the heavier type; and
(c) recreational and leisure activities which place her left arm/shoulder under stress.
188I accept Ms Nelson suffers altered sensation to the area of the left clavicle, left shoulder and left upper arm. I accept this is something which she has had to live with on an ongoing basis since the surgery. I accept that this is a consequence relevant to her paragraph (a) case.[69]
[69]It is appropriate I note it was the TAC’s submission that any sensory disturbance was attributable to the paragraph (a) application.
189Moving now to the work consequences.
190The TAC said:
(a) there was no disadvantage to Ms Nelson;
(b) the assertion that she could be earning $980 per week should not be accepted;
(c) that the film established Ms Nelson was capable of returning to unrestricted work as a cleaner;
(d) that Ms Nelson had, prior to the collision, principally worked as a cleaner and she had returned to that work.
191As set out earlier in this judgment, I do not place weight on the proposition made by Ms Nelson that, but for her injuries, she would have been earning $980 per week. I accept that to be, at best, aspirational.
192Moving now to the film. Firstly, I do not accept that the video surveillance is inconsistent with the medical evidence. Indeed, a number of doctors had been provided with video surveillance and considered it.
193Secondly, I must balance up the impact of the film and, in particular, the manoeuvring of the fridges, with the balance of the evidence. Without revisiting my analysis previously undertaken, I accept that the film, on one view of it, is not consistent with Ms Nelson’s evidence. However, I accept that this was:
(a) heavy lifting undertaken on one occasion only;
(b) for a short time;
(c) using two arms;
(d) something Ms Nelson said she could not do on a consistent basis; and
(e) caused increased pain.
194Consistent with my analysis earlier in this judgment, I accept that Ms Nelson does have a range of restrictions for work resulting from the left shoulder injury. Put simply, there are various repetitive and heavy aspects, as set out by Dr Slesenger, which are now ill-advised.[70]
[70]See paragraph 104 of this judgment.
195I accept that, if Ms Nelson were to try to undertake such activities on a consistent basis, they would cause her an increase in her level of pain and would not be viable on a reliable and ongoing basis. I accept that Ms Nelson, by reason of the left shoulder injury, is unable to:
(a) undertake the heavier and more repetitive cleaning duties;
(b) return to work as a fruit picker; and
(c) return to work as a patient services assistant.
196Ms Nelson said that she can and, indeed, has, undertaken work within these restrictions. She said that work outside these restrictions would not be appropriate and would increase her pain. I accept that she does have the ongoing consequences for her work such that:
(a) there is a limit in the range and hours of cleaning work that Ms Nelson can reliably and reasonably undertake; and
(b) she is precluded from more physically-demanding work, such as fruit picking or working as a personal care assistant.
197Moving now to the impact on Ms Nelson’s sleep.
198The TAC said, quite rightly, that a consequence of Ms Nelson’s Carpal Tunnel Syndrome was impaired sleep. I accept that to be so. However, on a careful review of her evidence, Ms Nelson said her sleep had, independently, been impacted by:
(a) her left hand symptoms;[71] and
(b) what she described as deep pain around the left trapezius and clavicle.[72]
[71]T42, L5-10
[72]T25, L9-28 and T22, L21-22
199I accept that the pain consequential to the left shoulder injury, in its own right, does impact upon Ms Nelson’s sleep. This is independent of the sleep impairment flowing from the left wrist/hand pain resulting from the carpal tunnel.
200I do not accept that Ms Nelson suffers any adverse mobility consequences from her collision-related injuries. Indeed, Ms Nelson said in her oral evidence that there is no impact upon her capacity to walk.
201I do not accept that Ms Nelson suffers any impaired cognitive function by reason of the left shoulder injury or its consequences.
202Referring now to Ms Nelson’s capacity to self-care and self-manage.
203I accept that Ms Nelson, in general terms, can function independently. That said, I accept there may be tasks which have a level of difficulty to Ms Nelson or trigger increased pain. These include:
(a) putting on her bra;
(b) washing her hair;
(c) carrying a backpack;
(d) activities at or above shoulder height; and
(e) tasks involving repetitive physical activity.
204Turning now to household and domestic activities.
205I accept:
(a) Ms Nelson can and does undertake the full range of light household activities;
(b) that Ms Nelson is impacted when undertaking activities which involve:
(i)heavy and repetitive tasks;
(ii)overhead forceful activities; and
(c) more physically-demanding household and domestic activities will lead to an increase in her pain levels.
206I pause here to make comment in the context of Ms Nelson’s return to work as a cleaner which, on one view, is akin to undertaking household and domestic activities.
207I accept that Ms Nelson, subsequent to undergoing the surgical repair of her clavicle, has endeavoured to get on with her life. She has taken what work she could given her skillset, work history and physical capacity consequential to the left shoulder injury. This has included cleaning public toilets. Undertaking the cleaning of public toilets is not a job someone who is work-shy is likely to take on. Indeed, as previously discussed, I consider that Ms Nelson is a stoic person.
208I reiterate that it is well established that injured workers who pursue such serious injury applications, and who are stoic, ought not be disadvantaged by reason of their stoicism.[73]
[73]Haden Engineering at paragraph [13]
209Moving now to the impact on Ms Nelson’s recreational activities.
210Ms Nelson made particular reference to two specific activities:
(a) furniture making/woodworking; and
(b) rock-and-roll dancing.
211Dealing firstly with the furniture making and woodwork.
212Ms Nelson said:
(a) that she did a furniture-making course in 2013;
(b) that she enjoyed making various items of furniture such as beds, bookshelves, toolboxes and kitchen caddies;
(c) she used these skills to undertake volunteer teaching of children with disabilities; and
(d) she had been unable to return to these activities by reason of the left shoulder injury. These activities require the use of both hands/arms and she was not physically capable.
213Ms Nelson’s evidence in respect to this activity was challenged by the TAC based on various Facebook postings.[74]
[74]T13, L27 – T14, L19
214While Ms Nelson said she no longer had her woodworking equipment, she was adamant that she was not able to undertake these activities by reason of her injuries.[75]
[75]T45, L2-10 and T46, L10-19
215I accept the left shoulder injury does prevent Ms Nelson undertaking the physically-stressful aspects of her hobby of furniture making and woodworking.
216Referring now to Ms Nelson’s enjoyment of rock-and-roll dancing.
217Ms Nelson said this was something she enjoyed prior to the collision. She said she was not able to engage in this activity since the collision.[76] Ms Nelson said that rock-and-roll dancing involved vigorous use of both arms. I accept that to be so. I accept rock-and-roll dancing would cause Ms Nelson increased pain.
[76]Paragraph [24], PCB 16
218I accept that Ms Nelson’s injuries have impacted upon her ability to participate in recreational and leisure activities which she had enjoyed prior to the collision.
219Moving now to Ms Nelson’s social activities. Ms Nelson said these were not impacted.
220It is, of course, necessary when undertaking my analysis to not only consider the adverse impacts to Ms Nelson’s life caused by her injury, but also consider what it is that she has retained.[77]
[77]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [6]
221Ms Nelson continues to be able to:
(a) work undertaking modified duties;
(b) undertake a range of household and domestic activities;
(c) go camping and fishing;
(d) undertake most of her activities of daily living;
(e) drive;
(f) have a normal social life; and
(g) walk without restriction.
222As the Court of Appeal said in Ellis Management Services Pty Ltd v Taylor,[78] in range cases such as this:
“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. … .”
[78][2013] VSCA 326 at paragraph [59]
223To summarise, I accept:
(a) Ms Nelson is a forty-eight-year-old woman who, prior to the collision, generally enjoyed good health;
(b) she now suffers ongoing left shoulder pain and pain-related restrictions flowing from the left shoulder injury;
(c) she now has many decades of life in front of her where she will continue to suffer the left shoulder restriction and injury-related pain;[79] and
(d) the pain-related impairment touches upon many facets of her life.[80]
[79] Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
[80]Ibid
224I also take into account that Ms Nelson is a person who has historically worked in jobs and enjoyed recreational pursuits that were of a physical nature. She is a country person who I accept, prior to the collision, utilised her physical capacity to a significant degree.
225Having observed Ms Nelson in the witness box and considered all of the evidence, I accept that the consequences to her do constitute a serious injury pursuant to paragraph (a). That aspect of her application is successful.
Is Ms Nelson’s disfigurement a serious injury?
226Before moving on to my analysis of Ms Nelson’s disfigurement, it is appropriate to revisit the relevant authorities which touch upon disfigurement.
227The seminal Court of Appeal decision on disfigurement is Transport Accident Commission v Garcia.[81] The Court of Appeal provided a very detailed analysis of the relevant principles, particularly at paragraphs 28 through to 36. I shall not repeat this analysis, which I accept.
[81][2015] VSCA 225 (“Garcia”)
228In this application, Ms Nelson put her disfigurement in two ways:
(a) that the scar which resulted from the surgery was ugly, sensitive and easily irritated; and
(b) that her left and right shoulders are not aligned.
229I shall deal with the second of these propositions first.
230While the malalignment of the shoulders was referred to in the affidavit evidence, in the course of Ms Nelson’s oral evidence, it was not a focus. Indeed, when I undertook my inspection of the scarring and left shoulder, the alleged malalignment was not brought to my attention. In the circumstances, I do not place weight on this aspect of Ms Nelson’s application.
231Turning now to the scar itself.
232There are a series of photographs in evidence. They are variable in quality and some are quite dated. Indeed, a number portray the scar a short time after the surgery, when it was quite irritated and pronounced. At best, such photographs are only relevant for historical context.
233I undertook a view of the scar in the course of the application.
234I did not measure the scar. The medical practitioners who did undertake the measurements recorded differing outcomes:
(a) Dr Slesenger said it was 9.5 centimetres;
(b) Mr Crock said it was 13 centimetres by 5 millimetres; and
(c) Dr Freilich said it was about 10 centimetres.
235Mr Brett said it was approximately 9.5 centimetres in length. The TAC took no issue with that summation.
236The scar runs from the middle of Ms Nelson’s chest up towards her left shoulder.
237The scar was not particularly discoloured but it was, I accept, visible. I also accept Ms Nelson’s evidence that the scar does not colour or tan in the same manner as the surrounding skin.
238Ms Nelson, in her affidavit evidence, said she was self-conscious and embarrassed about the scar.
239As I have already observed when dealing with matters of credit, the TAC, in this application, relied on numerous photographs which Ms Nelson posted on social media and which showed the area of the scar. The TAC said, and I accept, that there are clearly times when Ms Nelson does wear clothes which expose the scar to the world.
240Indeed, Ms Nelson agreed:
(a) that as far back as April 2019, she was regularly wearing clothing that did not cover her left shoulder;[82] and
(b) if the occasion requires it, she will have bare shoulders.[83]
[82]T16, L11-14
[83]T18, L27-30
241Earlier in this judgment, when dealing with matters of credit, I analysed this apparent contradiction between the affidavit evidence, the social-media postings and Ms Nelson’s oral evidence. I again refer to her explanation, which is set out in paragraph 50 of this judgment.
242I conclude, in respect to Ms Nelson’s scarring and consequential disfigurement:
(a) That the level of the scarring is not so unsightly as to bring immediate attention to it.
(b) Often Ms Nelson does not go out of her way to cover the scarring.
(c) While Ms Nelson considers this scar to be unattractive, there is variability in the level of distress which the scarring may cause her.
(d) That she will have to live with the scarring and the consequences which flow from the scarring for the rest of her life.
(e) While the skin which constitutes the scar may have a level of sensitivity and/or vulnerability to irritation, I do not accept that in itself causes the wider-spread altered sensation of which Ms Nelson complains. As previously set out in this judgment, I accept that altered sensation, which is of much greater complaint by Ms Nelson, is properly referable to the paragraph (a) application, not this paragraph (b) application.
(f) That should Ms Nelson tan the surrounding skin, the scar will become more visible, and
(g) Ms Nelson does not like being questioned about the scar.
243I am conscious of the need to assess Ms Nelson’s disfigurement in comparison with other cases. There have, over the years, been many disfigurement applications before this Court. I have undertaken a review. They are too numerous to reference them all in this judgment. I refer to a sample:
(a) In Garcia, the application involves scarring to the plaintiff’s left upper arm. It was said to be plainly large, unsightly and in a prominent position. The plaintiff was unsuccessful.
(b) In Bustos v VWA,[84] the application involved injury to the index finger of the plaintiff’s right hand. There was raggedness in the healed area of the flap beneath the tip and a faint scar. The plaintiff was unsuccessful.
(c) In Kalinic v Acron Engineering Pty Ltd,[85] the plaintiff suffered scarring to his left leg. The scarring was large, measuring 17 centimetres by 2 centimetres, and it was said to be well healed. The plaintiff was unsuccessful.
(d) In Griffiths v Transport Accident Commission,[86] the plaintiff suffered scarring to his face. The scars were said to be prominent and obvious. The plaintiff was successful, and
(e) In Kaos v XL Premix Pty Ltd,[87] the plaintiff suffered numerous disfigurements and, in particular, an obvious and ugly scar on his right wrist. The plaintiff was successful.
[84][2021] VCC 1531
[85][2012] VCC 1052 (“Kalinic”)
[86][2022] VCC 454
[87][2023] VCC 1229
244While each case is to be dealt with on its own particular facts, of this sample I consider that Ms Nelson’s disfigurement is more akin to that in Kalinic. The scarring is slightly smaller but, like Kalinic, it is well healed.
245Having undertaken a careful view of the scar, observed Ms Nelson in the witness box and considered all the evidence:
(a) I accept that the consequences of the disfigurement may be “marked” or “significant” to Ms Nelson; however
(b) I do not accept the consequences satisfy the test for serious injury and are “very considerable”.
246The paragraph (b) aspect of Ms Nelson’s application fails.
Orders
247I shall hear from the parties in respect to the consequential orders to be made in this matter.
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