Pane v TAC
[2012] VCC 445
•12 April 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CIVIL DIVISION
Case No. CR-05-04048
| MARIA PANE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14, 15, 16 March 2012 | |
DATE OF JUDGMENT: | 12 April 2012 | |
CASE MAY BE CITED AS: | Pane v TAC | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 445 | |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986; Application under s.93; Claims under paragraphs (a) and (c); Pre-existing injury to right shoulder exacerbated by transport accident; Whether the exacerbation amounts to “serious injury” under paragraph (a); Whether and to what extent the psychological condition was a result of the transport accident; Issues of causation; Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. Jewell SC with | Clark Toop & Taylor |
| Mr M. J. Ruddle | ||
| For the Defendant | Mr D. Masel SC with | TAC |
| Mr P. Gates |
HIS HONOUR:
Background
1 Ms Pane is in a parlous situation.
2 Aged 62 years, she has not worked since July 2001. She says she suffers from intractable pain in the right shoulder. Attempts to undertake administrative duties involving keyboard work, the sort of work which she did during her working life, caused the pain to increase. She has been diagnosed with a full width tear of her right supraspinatus (rotator cuff). Whilst she underwent repairs to the injury in 2001, a new tear has now appeared. Her treating surgeon, Mr Wright, recommends further surgery. She is very fearful of undertaking that further surgery because of the hardship that she underwent in 2001. On balance, however, she wishes the surgery to take place to avoid any further deterioration in her condition.
3 In addition, there was a tear of her left rotator cuff. She has suffered from knee problems. A proposed knee replacement was deferred in light of the perceived need to undertake the shoulder surgery in 2001. Knee surgery remains a possibility.
4 Precisely what has led Ms Pane to her present unfortunate situation is open to debate raising difficult legal and medical questions. Amongst the factors of which call for consideration are bodily degeneration caused by the passage of years, a fall which she suffered in the car park of the building occupied by her former employer, the Australian Communications Authority in August 1999, a transport accident in which she was involved in November 1999 whilst travelling to a training session conducted for her then employer, the Australian Taxation Office, back problems caused by the provision of unsatisfactory seating at an occupational health and safety seminar conducted for the Australian Taxation Office in January/February 2001, and what she regards as a program of persecution and discrimination to which she was subjected by her superiors at the Australian Taxation Office leading to a termination of her work there in July 2001.
5 Following these various mishaps, she has undergone extensive medical and surgical treatment at the expense of the Commonwealth of Australia’s Workers’ Compensation Program “Comcare”. The total cost of these various treatments now stands at $107,000.
6 In this proceeding, Ms Pane seeks leave under s.93(4) of the Transport Accident Act 1986 to recover damages for the transport accident in which she was involved.
7 The most important part of the narrative for the purposes of this proceeding commences on 16 August 1999 when Ms Pane fell in the car park in the basement of the building at 200 Queen Street, Melbourne, where her then employer, the Australian Communications Authority was located. Ms Pane had been a keen skier but had injured her right knee in 1976. She had had continuing problems with her knee and was apprehensive of injuring it as she fell in the car park. As a result, she put her arms out to brace her fall. She said:
“I felt pain in my right shoulder and I thought it was okay until the next day and I noticed increased pain.”
8 She attended a medical clinic known as “Medi-Seven” in Mooroolbark, which was near her home. The doctor recommended heat treatment, physiotherapy and provided anti-inflammatories. He ordered an ultrasound. She was put on light duties at work and the Authority engaged a rehabilitation consultant who suggested that she not do keyboard work or use a mouse with her right hand. She was also advised to avoid carrying heavy weights or performing repetitive work. She then sought assistance from Nicholas Van Wetering who specialised in sports medicine. In a report to her solicitors dated 10 February 2007, Dr Van Wetering said:
“I felt that there were signs that her right shoulder pain may be related to a developing capsulitis [that is, frozen shoulder syndrome], a possible subacromial bursitis with impingement, and a possible contusion to the rotator cuff supraspinatus tendon.”
9 Ms Pane was referred for both an ultrasound scan of her right shoulder and also an MRI scan. The ultrasound scan according to a report dated 1 September 1999 showed:
“Partial thickness tear of the supraspinatus tendon …”
The MRI scan, however, according to a report of 28 September 1999, found:
“Rotator cuffs … appear intact throughout. Specifically, there is no evidence of supraspinatus tear or internal signal abnormality to suggest derangement.”
10 The pain persisted and Dr Van Wetering referred her to orthopaedic surgeon Mr Warwick Wright, specialising in shoulder injuries. Mr Wright saw Ms Pane for her first consultation on 14 October 1999. Mr Wright’s initial diagnosis was post-traumatic capsulitis. Mr Wright favoured conservative treatment at first, calling for rest of the shoulder for six weeks. Mr Wright arranged for Ms Pane to have a hydrodilatation which entailed the injection of anaesthetic cortisone and saline solution into the shoulder, which was scheduled for 14 December 1999. Meanwhile, Ms Pane transferred from the Australian Communications Authority to the Australian Taxation Office. This transfer was intended to enable her to make use of additional qualifications which she had obtained in the field of goods and services tax.
11 Meanwhile, on 10 November 1999, Dr Van Wetering cleared Ms Pane as fit to carry out her work at the Australian Taxation Office, which at that stage involved attending training sessions and did not require repetitive keyboard duties. On her way to a training session, she was involved in a motor accident on Rooks Road, Nunawading. Two vehicles travelling in the opposite direction collided, one of them spun out of control striking Ms Pane’s vehicle. Her vehicle was spun 180 degrees, leaving it facing in the opposite direction to the one in which it had been travelling.
12 Ms Pane said that following this collision, her right shoulder pain was “excruciating”. She said it got worse and the pain was “different” and was more intense. She said: “I was having pain into the back of my right shoulder.” An ambulance attended and took her to Box Hill Hospital where she was held for some time for observation and then discharged to the care of her local practitioner. The report from the attending ambulance officers recorded the main problem as “neck and scapula pain.” The diagram on the report shows pain in the right shoulder blade and on the right hand side of the rear of her neck. It also depicts what is labelled as “old pain” (which I take to mean pain which was pre-existing and persisted after the accident). On the point of her right shoulder the final assessment was shown as “neck pain”. The report also refers to a right shoulder injury three months ago.
13 The previously scheduled hydrodilatation proceeded the following month. She returned to Dr Van Wetering on 20 December 1999 reporting some improvement of movement but still complaining of pain. On 5 January 2000, despite an attempt to return to light work for three hours a day, she was in pain and felt unfit and was given a certificate for a week off work by Dr Van Wetering.
14 On 11 January, according to a report dated 9 December 2005 to solicitors acting for Ms Pane, Dr Van Wetering said:
“She appeared to have symptoms and signs that were consistent with excellent response to hydrodilatation therapy but having features of a chronic pain syndrome.”
15 Her attempts to get back to full time general duties at work were unsuccessful. She told Dr Van Wetering that she was not able to carry a back pack with her computer. She had trouble driving to work and did not want to undertake prolonged keyboard work. On 29 February 2000, Dr Van Wetering reviewed her after she had had two weeks off work and she told him that there was reasonable pain control “with mild discomfort”. He said in the report:
“It appeared that her pain syndrome may have been resolving and there was very little functional or objective restriction for her capsulitis.”
16 By 23 May 2000, Ms Pane was using a trolley to carry laptop computers and back packs. Mr Wright had suggested a further hydrodilatation. According to Dr Van Wetering’s report
“Review on 22 September 2000 confirmed that she had returned to work and had full range of movement except for some restriction of internal rotation. It appeared that she had an excellent resolving restrictive capsulitis situation with occasional peri-scapular pain.”
17 Meanwhile, during the winter of 2000, she says she attempted to return to the sport of skiing. She required assistance to fit her boots. The pain and restrictions in her right arm meant that she was unable to undertake any polling (that is, using her ski poles to move uphill). She felt she skied like a 75 year old and found the whole process demoralising. She gave up and has not attempted a return to skiing since.
18 In January/February 2001, Ms Pane was undertaking a course in Occupational Health and Safety at the request of the Australian Taxation Office. She believed she was provided with an unsatisfactory chair which did not allow her feet to reach the ground and, as a result, she developed low back pain and right-sided sciatica. These matters seemed, according to Dr Van Wetering’s report, to have resolved and settled by 28 May 2001.
19 On 19 June 2000, Ms Pane had had a further hydrodilatation. According to the report, a total of 30 millilitres of fluid including local anaesthetic and steroid, were instilled prior to capsular rupture.
20 An MRI scan dated 20 July 2001 reported:
“A full thickness tear of supraspinatus tendon near its insertion.”
21 A further confirmatory MRI scan made the same finding and in November 2001 she underwent a surgical repair of the tear.
22 Dr Van Wetering’s report notes that, as at 8 July 2002, in a review carried out by reason of some physiotherapy issues, he found “excellent range of movement of her right shoulder”.
23 In February 2004, she underwent surgery for a tear of the rotator cuff of the left shoulder. She reported pain and restriction. Examination by the doctor “reflected shoulder girdle muscle wasting and lack of confidence and range of movement exercises”. She had restriction of internal rotation and mild pain with abduction and empty can testing”. The report does not record whether the muscle wasting was of both shoulder girdles or of one only. The doctor noted Ms Pane required home help, work re-training, psychological support, physiotherapy, hydrotherapy and massage therapy.
24 The doctor’s report continued:
“Review examinations since that time have revealed chronic pain secondary to shoulder and cervical spine dysfunction and on 18 April 2005, she also complained of bilateral hand stiffness which she had had for five weeks and which she ascribed to the hydrotherapy exercises and dumbbell exercises which she had been doing as part of her rehabilitation.”
She complained of pain in both hands. The doctor recorded:
“X-ray excluded osteoarthritis and blood tests were arranged to exclude an inflammatory disorder. Ultrasound follow-up of the involved tendon regions of her hand confirmed no obvious tenosynovitis.”
25 Possible diagnoses of cervical spine dysfunction or thoracic outlet syndrome were explored. An MRI scan produced an equivocal result. Prescription of Prednisolone suggested by Dr Peter Blombery had no effect. There were further trials with Amantadine and Epilim. Continuing hand symptoms led to a referral to Mr Warwick Wright, who found no signs of carpal tunnel syndrome.
26 Dr Blombery found little response to the Amantadine and Epilim. She was referred to a specialist for chronic pain management but, after some time, declined to proceed with the program.
27 According to a report to Ms Pane’s solicitors dated 28 February 2012 by Mr Wright, review of Ms Pane in November 2011 and February 2012 saw Ms Pane informing Mr Wright ─
“…that over time she developed an increase in pain in her right shoulder without any specific further trauma. She also had moderate left shoulder [scil.pain] present at the time of assessment as well.”
With respect to the right shoulder, Mr Wright found ─
“…a painful subacromial crepitus with abduction, positive impingement testing and Jobe’s test (a test of function of the supraspinatus tendon was positive). Her shoulder movements were also restricted with external rotation of 45 degrees, internal rotation to the fifth lumbar vertebra. Strength testing of the internal and external rotators revealed normal external rotation power and Grade 4+ out of 5 belly press test (internal rotation).”
28 Mr Wright concluded that there had been a deterioration or further damage to her right shoulder. He commissioned an MRI scan and x-ray of the shoulder. These scans, he said, revealed, along with the clinical examination─
“…significant ongoing right shoulder pathology. There is tearing and degeneration of the supraspinatus and infraspinatus tendon (rotator cuff) of the right shoulder, with formation of large spurs around the acromion (shoulder blade), and upper humerus. The muscle tissue controlling the supra and infra spinatus component of the rotator cuff was noted to be wasted, and some fatty change noted. This is of moderate severity.”
29 According to Mr Wright, these matters were the cause of her ongoing pain. He said he found no evidence of a chronic regional pain syndrome. He noted also:
“The structure of the rotator cuff tendons have demonstrateD that there may be an issue of collagen quality leading to ongoing tearing and degeneration of the tendon despite what appeared to be successful surgical repair in the past.”
30 I took this to mean that Ms Pane’s shoulder tendons are chronically subject to tearing in the same way as the bones of a patient suffering from osteoporosis are at peril of breaking even in the absence of significant trauma. Mr Wright recommended surgery but noted:
“Unfortunately I am in no position to guarantee a successful outcome from surgery. A risk of a poor result is high, and there is even a small risk that further surgery may be detrimental to her shoulder function. That being said, her current level of shoulder function is poor, with significant pain and weakness, and the final decision about whether further management can be undertaken rests with her. In the long run she may well require shoulder replacement surgery, but this is not currently under consideration or planned in any material way. I note that her left shoulder has similar findings on MRI scan, and can potentially be given for surgery to be undertaken to the left shoulder at some time in the future.”
31 Mr Wright noted that Ms Pane had been cooperative and did not “exaggerate or embellish her symptomotology in any way”. He noted nevertheless that she was depressed as a result of her chronic pain and disability.
32 In support of the application, Mr Jewell SC, who appeared with Mr Ruddle of counsel for the plaintiff, relied on physical impairments to the right shoulder (and perhaps the left shoulder as well) and to the neck as falling within paragraph (a) of the definition of “serious injury” in s.93(17) of the Transport Accident Act 1986 and also mental or behavioural disturbances as falling within paragraph (c) of the definition. In final submissions, he abandoned reliance upon injury to the neck.
Legal considerations
33 Sections 93(1)-(4) of the Transport Accident Act 1986 restrict the ability of a person to recover damages in respect of injury as a result of a transport accident unless the Transport Accident Commission issues a certificate in writing consenting to the bringing of the proceeding or a court, on the application of the person, gives leave to bring the proceeding. Success in the proceeding requires a finding that Ms Pane’s injury resulting from the transport accident is a “serious injury”. Section 93(17) defines the expression “serious injury” to mean:
“(a)serious long-term impairment or loss of a body function; or
(b)permanent serious disfigurement; or
(c)severe long-term mental or severe long-term behavioural disturbance or disorder; or
(d)…”
34 Insofar as Ms Pane’s application places reliance on the basis of paragraph (c) of the definition of serious injury in s.93(17) of the Transport Accident Act, it should be noted that, whilst the general descriptor for serious injuries is “serious”, this paragraph uses the word “severe”. These words are not to be regarded as synonymous. As a member of a five Judge Court of Appeal in Mobilio v Balliotis [1998] 3 VR at 833 at 846 Brooking JA remarked:
“I would say that ‘severe’ is used in the definition as a stronger word than ‘serious’.”
35 The hurdle for a plaintiff in obtaining a finding under this paragraph is therefore higher than it is under the other paragraphs, and in particular, higher than the hurdle which a plaintiff relying on a purely organic injury has to surmount for success.
36 On behalf of the Commission, Mr Masel SC and Mr Gates submitted first that, whilst the severity of Ms Pane’s injuries must be judged on the basis that the tortfeasor took his victim as he found her, it was only the exacerbation alleged to flow from the transport accident itself which should be assessed to determine whether a serious injury has occurred. They relied on Petkovski v Galletti [1994] 1 VR 436. I did not understand Mr Jewell SC and Mr Ruddle, on behalf of the plaintiff, to disagree with this proposition. This may require the dissection of operative cause – see the judgment of the Court of Appeal in D’Agostino v Lynch [2011] VSCA 249.
37 In accordance with standard causal analysis in civil law, a finding that a serious injury has been caused by a transport accident may be made, so long as the transport accident is a cause of the injury. It need not be the sole or dominant cause – Grech v Orica Australia Pty Ltd [2006] VSCA 172.
Expert opinions
38 Mr Wright, a treating orthopaedic surgeon, reported to Ms Pane’s solicitors by letter dated 17 October 2008 that, following Ms Pane’s fall in August 1999, she suffered post-traumatic adhesive capsulitis. He did not believe that there was a rotator cuff tear. He regarded the ultrasound taken on 1 September 1999 as being unreliable or misread by the operator. Asked what injury was sustained to the right shoulder following the transport accident on 16 November 1999, he said:
“The right shoulder had clinical and radiological evidence of a full thickness tear of the supraspinatus tendon (rotator cuff tear).”
Mr Wright said he believed that the transport accident was the principal cause of the right shoulder injury and that that injury persisted until 2008. His later report of 28 February 2012 referred to above records the persistence of the injury to the present time. He said the left shoulder injury had “substantially occurred in the circumstances where there was over-reliance on the left shoulder by reason of the right shoulder injury”.
39 Mr Wright agreed that the course of Ms Pane’s clinical injury did not support the view that she suffered a full width tear of the supraspinatus at the time of the transport accident. He said, nevertheless, that he believed she may have suffered a partial tear. Once a partial tear existed, a full tear became more likely; that is, the tendon was more vulnerable to tearing. The full width tear took place, he suggested, in the course of 2000 and 2001 as Ms Pane went through various return to work processes and sustained various stresses relative to keyboard work, carrying and the like. Mr Wright accepted, as I understood him, that the results obtained in the two hydrodilatations which Ms Pane underwent before the tendon repair operation, pointed away from a full thickness tear having existed at the time that these procedures were carried out.
40 Dr Van Wetering found significant pathology in the right shoulder and injury to the left shoulder in his reports referred to above. In an updated report of 9 March 2012, he said that with respect to the right shoulder:
“I agree that it is conceivable that there was an underlying weakness of the rotator cuff in the circumstances and the motor accident could conceivably have been responsible for aggravating this condition and promoting a rotator cuff tear.”
41 Mr Moran, an orthopaedic surgeon, examined Ms Pane for medico-legal purposes at the request of solicitors acting for her on 27 September 2006. He described Ms Pane in a report to the solicitors of 12 October 2006 as presenting with “persistent symptoms … essentially neck pain and right shoulder pain and, to a lesser extent, left shoulder pain”. He said:
“It is likely that shoulder pain developed as a consequence of bracing her arms against the steering wheel at impact [in the transport accident] and right shoulder pain would certainly have been aggravated by impacting the driver’s door to her right.”
42 He conducted a re-examination on 7 April 2010 and, in a report to Ms Pane’s solicitors dated 23 May 2010, said:
“I would consider that the transport accident in November 1999 is a significant aggravating factor in the development of an attrition rupture of the rotator cuff mechanism in the right shoulder. This accident had also provoked neck pain on a background of age-related and asymptomatic degenerative [scil pathology] in the cervical spine.”
He continued:
“The rotator cuff rupture repaired in 2001, has resolved, with ongoing pain in the right shoulder region being in a large part from aggravated degenerative change in the cervico-thoracic spine. In this respect, neck pain provoked by the transport accident in 1999 remains symptomatic.”
He observed that:
“Over reliance on the left arm may have been a contributing factor to the development of an attrition rupture of the left rotator cuff mechanism.” [My emphasis.]
43 Mr Simm, an orthopaedic surgeon, examined Ms Pane on 3 October 2011 at the request of the defendant Transport Accident Commission. He sent a report to the Commission dated 4 October 2011. He said:
“I do not believe the supraspinatus tear [in the right shoulder] bears any relationship to the fall in August 1999 or to the transport accident in November 1999. My reason for stating this is the fact that she had two hydrodilatations following these incidents and on both occasions there was considerable distention of the capsul prior to capsular rupture. If there is a full thickness tear then it is not possible to distend the joint under pressure due to escape of fluid. The supraspinatus tear was first identified in 2001. The tear identified in 2007 is a reflection of the progressive nature of this degenerative condition.”
44 Mr Simm said that up to 50 per cent of the population aged 60 or more had been found to be suffering from largely asymptomatic full thickness supraspinatus tear. Therefore, he suggested, it was far from unreasonable to conclude that the tear was the result of degeneration and not the traumatic effects of the fall in August 1999 or the transport accident in November 1999.
45 Mr Simm was prepared to concede that a full thickness tear could occur in the course of a transport accident as a result of grabbing the steering wheel in the accident described to hold herself steady. The course of Ms Pane’s progress following the accident, manifesting a gradual improvement immediately after with the occurrence of the full thickness tear in 2001 was, in Mr Simm’s view, supportive of his interpretation.
46 As to her psychological situation, Ms Pane was assessed by a number of examiners.
47 Dr H Sutcliffe, an occupational physician, saw Ms Pane for treatment over the period July 2001 to 1 April 2004. In a report to Ms Pane’s then solicitors dated 3 September 2004, the doctor said she
“…firmly believed that she [Ms Pane] sustained adjustment disorder with depression and anxiety as a result of the stresses in her employment with the ATO resulting from inappropriate management of the consequences of a claim for back injury and as a result of unreasonable blocking of training, performance of normal duties, targeting promotion of a culture of conflict and blame in relation to injury issues.”
As a result, she said Ms Pane “developed symptoms of depression and anxiety and has been unfit to work since she was seen in July 2001”. Dr Sutcliffe said that an “increase in symptoms related to the shoulders … was related to the MVA [motor vehicle accident] in employment and the subsequent performance of persistent keyboarding duties and in particular persistent mouse use”. In a later report dated 12 December 2009, Dr Sutcliffe assessed Ms Pane for medico-legal purposes at the request of Ms Pane’s solicitors. She commented:
“Ms Pane has been unfit for work as a result of depression for a prolonged period and she was treated by me for the depression and also for low back pain as a result of onset during training when the wrong type of seat was provided for her.”
She said:
“I believe that Ms Pane now has unfitness for work not only as a result of the depression which is now longstanding but also when considered separately as a consequence of the physical effects of the right and left shoulder injuries. She has painful limitation of both shoulders and showed no capacity to perform clerical, written or computer based work on a constant or intermittent basis as required in her occupation, either pre-injury or modified duties subsequently.”
The doctor said:
“I believe that Ms Pane sustained onset of right and left rotator cuff injury as a result of her employment initially related to MVA on the way to work in 2001 when employed by ATO.”
48 The doctor carried out a re-examination on 19 January 2012 at the request of the solicitors and reported to them in a letter dated 30 January 2012. The doctor said Ms Pane was found by her to be unfit for work by reason of her psychiatric condition and also ─
“…persisting pain with nociceptive base in the shoulder girdles and neck [which] continues to restrict her capacity for employment, for pre-injury employment or for other employment considering her past work experience, education and training”.
49 Dr Stephen Stern, a consultant psychiatrist, saw Ms Pane on 16 August 2011 for medico-legal purposes at the request of the defendant Commission. He diagnosed her as suffering from a chronic adjustment disorder with depressed mood. He concluded that her psychiatric state was related to the transport accident and continuing pain, although he regarded a history of post-natal depression, of work stress and physical injuries as “also relevant to her current psychiatric state”. Dr Stern said that Ms Pane required “long-term psychiatric treatment with anti-depressant medication”. He said that, from a psychiatric standpoint alone, she was fit for work “including her pre-injury duties, or alternate suitable duties”. He said her prognosis was of “chronic depression” and was stable.
50 Dr Nigel Strauss, a consultant psychiatrist, assessed Ms Pane for medico-legal purposes at the request of Comcare Australia on 28 July 2000. The doctor took a long history of emotional problems arising from employment which he described in his report under the heading “Alleged work problems”. He noted a history of Ms Pane ceasing work in November 1993 and then “off work for a significant period of time”. He noted that she commenced psychiatric treatment “with her current psychiatrist, Dr Sheehan, in 1994 after having seen her previous psychiatrist for about five years”. Ms Pane was diagnosed (according to the notes taken by Dr Strauss) with chronic depression and was treated with anti-depressant medication. Speaking as at July 2000, the doctor observed:
“She has worked on and off as stated but has been back at work now for approximately 18 months.”
As at 2000, he said:
“She is no longer taking any anti-depressant medication.”
51 He considered that Ms Pane had “suffered from a major depression for many years with intermittent exacerbations and remissions”. As at the date of his report, he said:
“She is no longer suffering from an active depressive state but obviously she remains vulnerable to depression.”
He recommended continuing psychiatric treatment, observing:
“Often people who are symptom free need ongoing support from [scil for] some time after their symptoms disappear to avoid a further exacerbation of any psychiatric illness.”
He made a specific finding:
“This woman is currently not suffering a psychiatric illness”.
He found her “psychologically fit to perform her current duties with the Australian Tax Office”. He advocated that she should be “treated sympathetically and she should not be stigmatised because she has a previous stress-related claim and still needs psychological support”.
Conclusions
The Shoulders – paragraph (a) of the definition
52 It is clearly established that Ms Pane has significant pathology in her right shoulder. Further, it is not in dispute that there is a full width tear in the rotator cuff of the left shoulder. This is not, therefore, a case where physical symptoms are caused purely by a psychological condition cf. Richards v Wylie (2000) 1 VR 79.
53 Further, the findings of muscle wasting indicate that there has been guarding and lack of use. Ms Pane’s condition therefore is not deliberately feigned nor one which manifests itself only upon formal examination.
54 The uncontested evidence establishes a loss of body function relative to the right shoulder and to the right arm generally, and also, though perhaps to a lesser extent, for the left shoulder and arm. These impairments are of long-standing, in the case of the right shoulder at least since 2001. The plaintiff has not worked for over 10 years. The very large expenditures made by the Comcare scheme for her treatment are also supportive of the view that these impairments are serious.
55 The evidence from a Mr Simm, which was not contradicted, was that at the age of 60 perhaps 50 per cent of the population would have full width rotator cuff tears, for the most part asymptomatic. Mr Simm said though he could not refer to a specific study to support his opinion on this that, as at the age of 49, when the full width tear in Ms Pane’s right shoulder occurred, perhaps 20 to 30 per cent of the population would have such tears caused purely by degenerative and wear and tear reasons rather than significant trauma. On this view, rotator cuff tears in middle age or later middle age are not intrinsically serious. Mr Simm, however, conceded that some patients have far worse reactions to this phenomenon than do others. The evidence, in particular, the evidence of muscle wasting, supports the view that Ms Pane has had one of those particularly bad reactions.
56 Assuming without deciding that the problems with the shoulders are, on the evidence, such as could meet the requirements of paragraph (a) of the definition of “serious injury”, is it established that these impairments were a result of the transport accident?
57 In a short report dated 10 June 2011, Mr Wright said:
“I confirm that the motor vehicle accident is the cause of Mrs Pane’s current shoulder condition.”
58 Mr Masel and Mr Gates submitted that this statement or “ipse dixit”, that is, an assertion without reasons, should not be regarded as probative. They referred me to a decision of the High Court of Australia in Dasreef Pty Ltd v Howchar (2011) 243 CLR 588 where the Court held that both under the common law and under the Evidence Act s.79 an expression of opinion by an expert is inadmissible unless the expert states the reasoning by which the conclusion was reached. The report in question was received into evidence without objection. Nevertheless, they referred me to the judgment of Heydon JA (as he then was) in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 where the same issue was considered at some length. According to his Honour’s analysis, even if admitted in this form, such evidence should bear no weight - [2001] NSWLR 705, 729-731 [59] – [62]. The expression of expert opinions in this bald fashion, even after the abolition by the Evidence Act 2008 of the “ultimate issue” rule, is problematic. As Mr Jewell opened the case for the plaintiff, I sought clarification as to the basis for Mr Wright’s opinion on this point which was being relied on as part of the plaintiff’s case. I pressed Mr Jewell as to how it would be asserted that a full width tear which occurred, it would seem, in 2001, could be attributed to a transport accident in 1999. Mr Jewell said at T/S 11 LL 4-5:
“Just as an orthopaedic surgeon using his speciality, he asserts the position.”
59 The hypothesis of a partial tear occurring at the time of the transport accident was not mentioned in the opening. Later, in the course of cross-examination, Mr Wright gave the explanation described above, namely, that the transport accident yielded a partial tear which left the supraspinatus vulnerable to what was in effect, a spontaneous tear in 2001. Presumably, had Mr Jewell been aware that this was the line of reasoning which Mr Wright would follow, he would have acquainted me with this analysis in answer to my question in opening. The fact that the reasoned basis for the opinion emerges in these circumstances after so many years in itself raises some cause for concern.
60 A similar bald assertion was made by Mr Wright in a letter to the plaintiff’s solicitors of 17 October 2008 where he said:
“On the balance of probabilities, I believe that the car accident was the principle cause of the applicant’s right shoulder injury.”
61 Mr Jewell drew attention to the fact that this view of causation on Mr Wright’s part was an opinion which he had long held. He noted that in a letter to Comcare of 14 October 2002, Mr Wright said:
“The precipitating factor resulting in the requirement for surgery in October 2001 is the likely motor vehicle accident on 16 November, 1999.”
62 The problem with the theory now advanced by Mr Wright that there was a partial tear caused in late 1999 by the trauma of the transport accident is that there seems to be no specific evidence to support that view of things. Clearly, if as Mr Simm’s uncontradicted evidence tells us, even a full width tear can be asymptomatic. The absence of specific signs and symptoms cannot in itself prove that a partial tear did not occur. It is possible such a tear occurred, but is it probable?
63 Both Mr Wright and Mr Simm agreed that the type of accident in which Ms Pane was involved could cause a rotator cuff tear. I did not understand their evidence to be, however, that a tear, partial or full, would be the inevitable consequence of such an accident or even a particularly probable one. Given the mechanics involved in road trauma and the fact that, whilst a driver or passenger’s trunk may be restrained by a lap sash seat belt, the head and neck are not, at least soft tissue whiplash injury to the neck is highly probable. There is nothing to suggest, however, that a rotator cuff injury is necessary or a highly probable consequence of an accident such as this.
64 Dr Van Wetering was taken through a painstaking, and to some degree painful, cross-examination by Mr Masel which had him interpret the clinical notes which he and his colleagues at their clinic took in providing primary care to Ms Pane in the period following the transport accident until the full width tear was diagnosed in 2001. What was striking was that the care was being administered at this time on the footing that the trauma causing the injury under treatment was the fall in August 1999, not the transport accident. The transport accident seems to have been treated as a transitory exacerbation at most.
65 Mr Jewell submitted correctly that matters which are not obvious at the time, may in retrospect be more obvious. On the other hand, there is also a risk that history may be re-written in hindsight by concentrating on events which occurred later, viz, the full width tear rather than upon contemporary evidence.
66 There is the further consideration that Mr Wright felt that Ms Pane’s tendon may have been particularly vulnerable to tearing because of some form of collagen deficiency. His observation to that effect is quoted above. This would make a spontaneous tear in the supraspinatus occurring in later middle age something which was perhaps on the cards. This view is supported by the subsequent tear to the rotator cuff in the left arm in circumstances where there is no evidence to suggest that the left arm was being subjected to any particular trauma, or “overuse” beyond the use to which the right arm as the dominant arm would ordinarily have been put. This is not a case of a person doing heavy manual work who is required to do the whole of that heavy manual work with a single arm. Throughout the period with which we are dealing, Ms Pane was either on some form of light or modified duties or not working at all.
67 I am conscious that in making this finding, I am negating the opinion of a treating practitioner. As a treater, Mr Wright is not to be seen as a “hired gun” as medico-legal experts sometimes are. He has seen the plaintiff over an extended period rather than upon one or more isolated assessments. His opinion on causation however, does not proceed from any observation made during treatment which is not available for instance, to Mr Simm. Dr Van Wetering, who saw and assessed Ms Pane far more frequently, was unable to offer a view on causation. Mr Moran, a plaintiff’s medico-legal expert expressed the view that the transport accident was causative of the shoulder problems but in his reports does not explain the lengthy delay between the accident in 1999 and the manifestation of the tear in 2001.
68 For all these reasons, I find on the balance of probabilities, that the full width tear which was identified and repaired in 2001 in the right rotator cuff, was not related to the transport accident.
69 Even although I would not, had the right shoulder tear been proven to be related to the accident, have accepted that the tear in the left shoulder could properly be regarded as connected to the accident based on some “overuse”, the finding relative to the right shoulder necessarily excludes any causal connection between the transport accident and the tear in the left shoulder.
70 The plaintiff’s application in so far as it relies on paragraph (a) of the definition, therefore fails.
Mental disturbance – paragraph (c)
71 The findings relative to the causation of the right shoulder rotator cuff tear in 2001 necessarily also mean that the application in so far as it relates to paragraph (c) must likewise fail for reasons of causation.
72 Dr Van Wetering’s clinical notes show that, whilst a diagnosis of a chronic pain syndrome, viz, psychogenically-driven pain had not finally been made with respect to the sequelae of the August 1999 fall, those at Dr Van Wetering’s clinic seemed to be tending to that view in light of the persistence of the pain and restrictions beyond what they regarded as the ordinary time frames to be expected for an organic injury.
73 There is the further consideration that, as disclosed by Dr Strauss’s report, Ms Pane had a pre-existing and lengthy history of depression. All the evidence indicates that this condition persists to this day and certainly existed through most of the previous decade. Accepting Mr Jewell’s contention that things may be clearer in retrospect, it is difficult to accept the opinion expressed by Dr Strauss in his medico-legal report to Comcare in the year 2000 that, as at that date, Ms Pane had reached an island of good psychological health. If her psychological condition were to be regarded as at least in part caused by the transport accident, it would be necessary to consider what part should properly be regarded as effectively pre-existing, as distinct from being merely a manifestation of the eggshell psyche principle. There would be the further consideration that, as recorded by Dr Sutcliffe, much of Ms Pane’s current psychological presentation flows from her view that she was discriminated against and persecuted by the Australian Taxation Office, a matter of which seems to be causally independent of the transport accident.
74 The consideration which is fatal for success for the plaintiff in reliance on paragraph (c) in this proceeding however, is a more general lack of causation. None of the evidence, as I understood it, suggested that any of Ms Pane’s psychological problems derived, if you will, from the shock of the moment – classic post-traumatic stress disorder. Rather, the plaintiff’s case as I understood it was that she was psychologically healthy in 1999 and as per Dr Strauss’s report, which was put into evidence by the plaintiff in the year 2000, but that the onset of her physical pain and restrictions was causative of reactive depression. A causal connection between that depression and the transport accident is made out if the physical pain and restrictions to which it is said to be secondary are found to be causally related to the transport accident. Yet, the findings that I have made already with respect to paragraph (a), exclude that possibility.
75 The plaintiff’s application therefore fails.
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