Paul v Transport Accident Commission
[2017] VCC 822
•22 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-04876
| LICE PAUL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HER HONOUR JUDGE BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 June 2017 | |
DATE OF JUDGMENT: | 22 June 2017 | |
CASE MAY BE CITED AS: | Paul v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 822 | |
REASONS FOR JUDGMENT
---
Subject: TRANSPORT ACCIDENT
Catchwords: Damages – transport accident – serious injury – right shoulder impairment
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited: Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd [2011] VSCA 52
Judgment: Application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Mr G Pierorazio | Arnold Thomas Becker |
| For the Defendant | Mr P Elliot QC with Ms G Cooper | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 21 June 2013 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3
The definition of “serious injury” relied upon by the plaintiff is under
s93(17)(a) – “a serious long term impairment or loss of a body function”.
4 The body function pursuant to subparagraph (a) relied upon by the plaintiff is the right shoulder.
5 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function: see Richards v Wylie.[1]
[1](2000) 1 VR 79
7 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more that “significant” or “marked” – see Humphries & Anor v Poljak.[2]
[2][1992] 2 VR 129 at 140-1
8 The plaintiff swore an affidavit on 10 March 2017. She was cross-examined. Both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
9 The plaintiff is twenty-eight, having been born in Fiji in February 1988. She arrived in Australia in 2010 at the age of twenty-two. She lives in Maryborough with her husband, Daniel, whom she married in Fiji prior to coming to Australia.
10 The plaintiff completed high school in Fiji before working as a kindergarten teacher. She continued this work upon her relocation to Australia, working as a relief kindergarten teacher for four hours a day, four days a week on a contract basis.[3]
[3]Transcript (“T”) 19
11 The kindergarten job was under the auspices of the YMCA. The plaintiff worked from April 2013 to June of that year and then August to December 2013.
12 The plaintiff worked four hours per day four days a week at the kindergarten. In the financial year ending June 2013, she earned $3,756.00 and in the following year, $5,595.00.
13 The plaintiff’s husband works as miner in Western Australia on a fly-in-fly-out basis, on a four weeks on, one week off rotation.[4]
[4]T19
14 On the said date, the plaintiff was sitting with her husband and sister-in-law in a restaurant in Laverton, facing the window when a car smashed through the window colliding with their table. The plaintiff’s sister in law and husband were injured. The plaintiff’s leg was trapped beneath the table. The driver continued to accelerate and the whole of the right side of the plaintiff’s body was hard up against the table (“the accident”).
15 Immediately following the accident, the plaintiff was extremely shaken by what had occurred. The ambulance staff told her and her husband that they would accompany them to the hospital; however, the plaintiff was so shaken and upset she insisted they go straight home instead.
16 The morning after the accident, the plaintiff and her husband travelled to Fiji as they had plans to attend her brother’s wedding.[5] After one day in Fiji, they both attended a doctor. At that stage, the plaintiff had right sided pain including her belly and legs.
[5]T19
17 The plaintiff underwent an x-ray of her right leg, left thigh and hip, as well as an ultrasound to her abdomen on 26 June 2013.
18 Upon returning to Australia, the plaintiff saw her general practitioner, Dr Kieran Lalor, on 30 August 2013. By this stage, the plaintiff was suffering significant symptoms including pain and restriction in the right side of her neck. It felt frozen and she had difficulty moving it. She gradually started to experience pain and restriction in her right shoulder as well.
19 The plaintiff agreed that following visits in August 2013, she did not see Dr Lalor again until 1 April 2014 and that was in relation in relation to her IVF program. A number of attendances in relation to this issue followed with the right shoulder first noted by Dr Lalor in September 2015.[6]
[6]T24
20 Although it was not in Dr Lalor’s notes, the plaintiff had right shoulder pain from the time of her August 2013 appointments. That pain continued through to 2015. During that period, the plaintiff’s mind was focussed on her IVF program.[7]
[7]T40
21 The plaintiff agreed she listed her injuries in her TAC claim form dated 16 April 2014 as leg trauma, thigh and hip trauma and abdominal pain.[8] When she completed the form she had Dr Lalor’s initial TAC medical certificate.[9]
[8]T24
[9]T41
22 Dr Lalor referred the plaintiff for an ultrasound on her neck; however, no abnormalities were found.
23 Following attendances on Dr Lalor on 14 and 30 August 2013, the plaintiff agreed the next time she saw him was on 1 April 2014 in regard to IVF, and again on 27 August 2013 when there was no mention of the car accident. She requested some forms relating to the car accident on 6 October 2013.
24 On 14 May 2014, the plaintiff started seeing psychologist, Casey Logan. However, if anything, talking about the accident made things worse and she stopped seeing her in October that year.
25 The plaintiff returned to Dr Lalor in September 2015, with problems in her right shoulder. He organised an ultrasound of her right shoulder and neck. The neck ultrasound was normal but the shoulder ultrasound revealed a thickened bursa and impingement on abduction.
26 In October 2015, the plaintiff underwent a right subacromial injection. Whilst she found the procedure to being extremely painful, it helped for a limited amount of time. In total, the plaintiff has undergone four injections of this nature, her last being in May 2017 at a Ballarat imaging centre. That injection gave her pain relief for only about a week.[10]
[10]T9
27 In July 2016, the plaintiff had a further ultrasound of her right shoulder which revealed mild bursitis with impingement. She was then referred to orthopaedic surgeon, Mr John Dillon whom she saw in August 2016.
28 Mr Dillon thought the plaintiff was suffering from a SLAP tear in her shoulder. He then organised an MRI arthrogram which revealed a degenerative tear of the biceps tendon.
29 On subsequent review in September 2016, Mr Dillon organised a cervical MRI. The plaintiff saw him the following month when he recommended she undergo conservative treatment in the form of physiotherapy.
30 Mr Dillon has not suggested surgery. The plaintiff was discharged from his care in October 2016, having seen him three times. [11]
[11]T30
31 The plaintiff had physiotherapy treatment on three occasions in Ballarat, but changed to a Maryborough physiotherapist as she had difficulty driving to Ballarat. She was treated at Maryborough two days a week for five or six months until TAC ceased funding at the end of last year. Since then, she takes just Voltaren and Nurofen over the counter.[12]
[12]T31
32 The physiotherapist gave the plaintiff a number of strengthening exercises to do at home. She does these exercises first thing in the morning or in the afternoon after work. She has a rope/pulley type device attached to the back of the door with which she does stretching exercises which she has found helpful. She also has a shower to warm up her shoulder.[13]
[13]T35-36
33 In addition to the exercises, the plaintiff takes Nurofen and Panadol to help with pain management. She takes these about two to three times per week when the pain is particularly bad. She also applies Voltaren Gel and Zen Gel to her right shoulder, neck and right knee.
Work since the accident
34 Following the accident, the plaintiff continued in her role as a relief kindergarten teacher for three months but ceased work as the job could be physical and she found some tasks difficult because of her pain and restriction. Her contract had run out at that stage.[14] In addition, she was constantly tired due to not being able to sleep because of the pain. She also felt scared that the perpetrator would again cause her harm.
[14]T18
35 At or about the same time, the plaintiff and her husband were trying to conceive and went into an IVF program, although to date they have not had any luck and she has been told she cannot have children
36 In 2015, at her cousin’s suggestion, the plaintiff commenced a Certificate III in Aged Care and Community Services. The course took approximately six months to complete and involved study seven hours a day, five days a week. Whilst not working, the plaintiff had no entitlement to Centrelink benefits as her husband was working, therefore, she needed to return to work to earn income.
37 Having completed the course, the plaintiff commenced working as a personal care attendant at Havilah Nursing Home in August 2016.
38 The plaintiff was employed on a casual basis and works between three or four days a week, depending on the roster, and earns about $1,000 per week. Her current shifts are 6.5 to 7.5 hours a day. She normally starts morning shift at about 7.00am and afternoon shift at 2.00pm.[15]
[15]T20
39 The plaintiff has never worked five days in a week as five days are not available.[16]
[16]T13
40 The plaintiff works in the Dementia Ward, where she assists in dressing, feeding and bathing patients. In this role, she is often required to help get the patients up. This is difficult because of her shoulder injury. She tends to rely on her left arm and has difficulty lifting a patient on her own. At the end of a day’s work, her right shoulder is extremely painful.
41 There are currently twenty patients in the Dementia Ward which is divided into two sections. The plaintiff works on one side of the ward. She enjoys helping the patients.[17]
[17]T17
42 The plaintiff agreed that she told Dr Elder if additional shifts were available she would take them on as she was managing that employment. If she was offered full-time hours, she would do them. She agreed she would have loved to have become a permanent worker and worked full-time hours, as Dr Ingram recorded.[18] If there was a different system and five days a week were available, the plaintiff could take that. It would be hard but she could manage.[19] After a six-and-a-half hour shift the plaintiff’s shoulder is really painful.[20]
[18]T14
[19]T15
[20]T38
Consequences
43 The plaintiff continues to suffer ongoing and constant pain in her right shoulder and the right-hand side of her neck. Her movement of these areas is restricted. She also experiences ongoing symptoms in the right knee and stomach which are heightened when it is cold. Since the accident, she also has been suffering from headaches.
44 In re-examination, the plaintiff said her shoulder is never free of pain. When it is bad, it is 10 out of 10, when it’s not too bad, she rates the pain as 8 out of 10.[21]
[21]T39
45 The plaintiff’s ability to lift heavy weights has been affected by her reduced right arm strength. Right shoulder pain also affects her ability to sleep most nights, particularly when she rolls over in bed onto her right shoulder. She does not take sleeping tablets, just painkillers.[22]
[22]T36
46 The plaintiff’s shoulder injury has also impacted upon her physical relationship with her husband.
47 The plaintiff is restricted in her ability to drive, as she cannot remain with her arms outstretched position for prolonged periods. Turning her head while in traffic is also difficult.
48 Following the accident, the plaintiff’s ability to undertake domestic and recreational activities has also been compromised.
49 The plaintiff has difficulty performing domestic tasks that require reaching up into higher shelves. She relies on a stepladder to overcome this. She also has difficulty hanging out the washing and scrubbing the shower.
50 The plaintiff is able to vacuum and mop the floors, although she takes her time to complete these tasks. When her husband is around, he will sometimes do the vacuuming or mopping for her. She is able to do the cooking[23]
[23]T19
51 Due to her shoulder restrictions, the plaintiff has difficulty completing everyday tasks such as showering, in particular washing her back, as well as putting on certain items of clothing such as a jumper or a bra.
52 The plaintiff tends to only wear zip-up jumpers and do her bra up from the front to avoid any difficulty she has in putting on these items of clothing.
53 The plaintiff no longer attends her personal trainer which she did two to three times a week pre-accident to help her fitness for her IVF program. The plaintiff did a circuit which involved running to cones, boxing, ropes, push ups and sit ups at her personal trainer’s studio. She is unable to continue this program as the physical exercise causes pain through her shoulder.[24]
[24]T10
54 Since sustaining the injury, plaintiff no longer swims laps, an activity she previously enjoyed. While she tried doing some swimming in 2016 on her physiotherapist’s recommendation, when the plaintiff arrived home, her shoulder was extremely painful and she has not returned to swimming since.
55 The plaintiff swam laps at her home in Perth, before she moved to Victoria.[25]
[25]T33
56 Before the accident, the plaintiff enjoyed playing netball and volleyball in competition with friends on a regular basis. She enjoyed these sports which kept her very fit but has been unable to return to them since her injury. In cross examination however, the plaintiff conceded that she had not played either sport since she arrived in Australia in 2010.[26]
[26]T32
57 Pre accident, the plaintiff enjoyed spending time in the garden. She is now no longer able to maintain her garden without assistance. She finds starting the Whipper Snipper and trimming plants to be particularly difficult because of her shoulder pain and restriction. She relies on her husband when he is home from work in the mines to start the Whipper Snipper. Her cousin trims the plants. She is able to mow the lawn with a mower with an engine.[27] However, she relies on her left hand when pushing the mower around.
[27]T34
58 Since the accident, the plaintiff also struggles to wash her car, an activity she previously enjoyed. While she sometimes still completes this task, she will only use her right hand once her left hand tires, and she has difficulty reaching the roof. More often than not she will take the car to the car wash.
59 The plaintiff now spends much of her time doing sedentary activities such as watching television, reading and visiting family members.
60 The plaintiff deposed that she avoids going to restaurants. This is still the case. Whilst she does go out for dinner with family as her Facebook print out indicated, she tries not to sit near the window.[28]
[28]T22
61 The plaintiff went back to Fiji for the wedding on the night of the accident and has been there twice since. She has a house there and is planning to go back and live in Fiji at some stage when her husband retires.[29]
[29]T23
62 The plaintiff has regular flashbacks about the accident and tends to dream a lot about it. She gets anxious when other people ask her about the accident.
The Plaintiff’s treaters
63 The plaintiff’s general practitioner, Dr Kieran Lalor, reported in December 2016.
64 Dr Lalor noted that in the accident, the plaintiff suffered left thigh and leg trauma with no fracture or dislocation. She also had a bilateral hip injury. She suffered a blunt abdominal trauma with no serious sequelae. She was subsequently found to have a tear in the right shoulder.
65 Dr Lalor noted the plaintiff was able to work part time, as she did in the past. He thought she appeared to have done well in general.
66 Dr Lalor noted then the plaintiff’s condition had likely not fully stabilised given she had seen Mr Dillon about her shoulder in August 2016. He thought it unlikely that there would be any major deterioration apart from reasonably anticipated osteoarthritis in her shoulder in future years.
67 Mr John Dillon, orthopaedic surgeon, reported in February 2017.
68 Mr Dillon first saw the plaintiff in August 2016 with a history of right shoulder bursitis which Dr Lalor had advised this stemmed from a car accident. Dr Lalor also advised that corticosteroid injections had only given the plaintiff limited benefit.
69 The plaintiff had had an ultrasound performed, which revealed evidence of mild bursitis with impingement.
70 Mr Dillon reviewed the plaintiff on 12 August 2016. He noted that in the accident, the car impacted the plaintiff’s table from the front. She was not sure how she injured her shoulder but she had complained of shoulder pain since the accident.
71 On examination, there was no focal tenderness over the AC joint or long head of biceps tendon. The plaintiff had a near full range of movement in the shoulder with some guarding. He felt her rotator cuff strength was well preserved. The O’Brien test for SLAP tear was positive.
72 Mr Dillon’s impression was the plaintiff had a SLAP tear, and he organised an MR arthrogram of her shoulder. It revealed a non-displaced degenerative SLAP tear with a small paralabral cyst. There was also a mild degree of subacromial bursitis.
73 On review on 9 September 2016, the plaintiff’s pain was located along her trapezius muscle in the posterior aspect of the shoulder. Mr Dillon was not convinced that the minor degenerative tear in her biceps anchor (SLAP tear) was the cause of her shoulder pain. He queried the possibility her pain was being referred from her neck. He therefor referred her for an MRI scan of the cervical spine.
74 Mr Dillon encouraged the plaintiff to go to physiotherapy to work on strengthening and to obtain advice regarding her posture, which he thought may in some way help her symptoms.
75 On review on 7 October 2016, Mr Dillon noted the cervical MRI scan was unremarkable. He had not found a structural cause for the plaintiff’s shoulder pain but felt it was primarily muscular in origin and was hopeful her symptoms would respond to physiotherapy. He then discharged the plaintiff from his care.
76 Mr Dillon did not have an exact diagnosis of the injury. He thought the plaintiff had a minor degenerative SLAP tear on MRI but he was not convinced this was the cause of her shoulder pain.
77 The plaintiff reported her shoulder pain was related to the accident. She did not report any problems prior thereto. He had to assume the accident was the cause of her shoulder pain.
78 Mr Dillon was unable to comment on the plaintiff’s present capacity for employment. Further, it was difficult to comment on the prognosis as he had not found a structural cause of her symptoms and he had not been able to assess her response to a structured physiotherapy program.
79 Mr Dillon also could not comment on whether the plaintiff’s condition had stabilised. He thought the likelihood of further deterioration was unlikely but it was difficult to say this with any certainty, as he had not found a definite structural cause for her symptoms.
Medico-legal evidence
80 Mr Thomas Kossmann, orthopaedic surgeon, examined the plaintiff in February 2017.
81 The plaintiff told Mr Kossmann of the accident circumstances and that on her return to Australia from Fiji, she saw her doctor and then underwent an ultrasound of her right shoulder and neck.
82 Mr Kossmann diagnosed pain and movement restriction in the right shoulder on the background of a SLAP tear with a paralabral cyst and healed contusions and bruises affecting the plaintiff’s abdomen, right leg and shoulder.
83 Mr Kossmann thought the plaintiff’s prognosis was guarded and that she would continue to suffer from pain and require further treatment with pain medication, anti-inflammatories, physiotherapy and hydrotherapy for her right shoulder condition.
84 In Mr Kossmann’s view, there was a small chance the plaintiff may develop osteoarthritic changes in her right shoulder joint for which she may have to undergo further treatment and that treatment will be directed by her symptoms should such a case occur.
85 Mr Kossmann thought the plaintiff had a work capacity, noting that she was working almost full time as a personal care attendant for 7.5 hours a week, for three to five days a week.
Investigations
86 There was an ultrasound of the plaintiff’s neck and right shoulder on 14 September 2015, organised by Dr Lalor. It was reported the biceps tendon was unremarkable, with no tear or fluid. The rotator cuff in its entirety was normal. There was no tear or calcification. The bursa was thickened and there was impingement on abduction.
87 The plaintiff had a right subacromial bursa injection on 14 October 2015.
The Defendant’s medical evidence
88 The plaintiff attended Dr Lalor on 30 August 2013. He then noted “has ongoing pain in/around right sternomastoid and the C spine vertebrae. No trauma suspected.” The diagnosis and reason for visit was neck injury. Imaging was requested and Panadeine Forte and Voltaren were prescribed.
89 Following the next attendance on 1 April 2014, the plaintiff attended a further seven occasions in relation to her IVF issue.
90 On 17 September 2015, Dr Lalor’s note read:
“History:
Musculo-skeletal
Neck pain.
Examination:
Musculo-skeletal:
Affected joint:
- Right. Tender – Movement restricted: Tender over right sternomastoid, as well as posterior to this, and on or about Supraspinatus.
All due to seat belt in her MVA.
Diagnosis:
Neck injury.
Actions:
Imaging request printed to Maryborough Radiology: Ultrasound scan – Neck (right side), Ultrasound scan – Shoulder, Right. (Was involved in an MVA and has severe, chronic pain involving the posterior aspect of her shoulder (including Supraspinatus), as well as anteriorly including sternomastoid – please assess for any tears etc…).”
91 On 1 October 2015, Dr Lalor noted he discussed the results of the right shoulder ultrasound with the plaintiff and suggested a guided injection for bursitis.
92 On 9 November 2015, the plaintiff’s reason for visit was her right shoulder pain.
Medico-legal
93 Dr David Elder, occupational physician, examined the plaintiff in February 2016 and February 2017.
94 On the initial visit, the plaintiff told Dr Elder that the day after the accident she became aware of significant pain in her right shoulder, neck and right thigh.
95 On physical examination, there was a slight decrease in right shoulder abduction, with a painful arc and internal rotation, again with signs of impingement. There was a completely full range of neck motion.
96 An ultrasound of 24 September 2015 suggested bursal thickening.
97 Dr Elder thought the plaintiff should have some physiotherapy for her right shoulder. In his view, her domestic and leisure activities were not interfered with. He thought there was no physical incapacity for her pre-injury duties, noting that she had returned to work and had retrained herself, with plans to re-enter the workforce as a full-time aged care worker and she would certainly have the physical capacity for that employment.
98 Dr Elder re-examined the plaintiff in March 2017. She then described right shoulder pain as “pinching” and she did not describe any neck pain.
99 There were similar findings in relation to the right shoulder and neck.
100 The plaintiff confirmed that since she was last seen, she had finished and course and she was managing seven hours of casual work, two to three shifts per week at the local nursing home. She said her right shoulder became tired and she was managing well. She confirmed that if additional shifts were available she would be able to take them as she was managing that employment.
101 The plaintiff was still doing all household chores but avoiding lifting anything heavy or anything from above head height due to her right shoulder condition.
102 Dr Elder thought it did not appear the right shoulder was related to the accident, as the plaintiff once again confirmed symptomatology came on in 2015, thus almost two years after the accident.[30]
[30]This comment seems at odds with the history given by the plaintiff on the first visit
103 Dr Elder thought the right shoulder does appear to impact on the plaintiff’s activities of daily living, social and recreational activities but does not interfere with her capacity for work.
104 Dr Peter Boys, consultant orthopaedic surgeon, examined the plaintiff in March 2017.
105 The plaintiff told Dr Boys about the accident circumstances and some bruising involving the lower abdomen and left thigh, and a small bruise on the right leg. She went to Fiji that night and attended a hospital in Suva subsequently and apparently underwent investigations of the abdomen and x-ray of the right leg, hip and thigh which were reported to be normal.
106 Dr Boys noted that when the plaintiff saw Dr Lalor on 21 August 2013, the pain was primarily around the right side of the neck and right sternomastoid muscle, and Dr Lalor organised radiographs of the cervical spine and an ultrasound of the neck which showed no abnormality.
107 Dr Boys noted that the plaintiff related ongoing discomfort around the right side of the neck with pain localising subsequently to the outer and posterior aspect of the right shoulder and investigations were carried out in September 2015.
108 On examination, the plaintiff described sensations of fatigue with use of the right shoulder and arm. There was a complaint of discomfort involving the right trapezius and outer shoulder at times. A degree of strain was noted on a daily basis, although the plaintiff related a full range of motion of the right shoulder.
109 The plaintiff was aware of some clicking with circumduction movement of the shoulder, and had to move off that shoulder in bed. She was able to lift and carry with the right arm but did not do heavy lifting.
110 There was a full range of motion evident with the right shoulder. Abduction on the right induced strain with full movement. There was a click palpable in the region of the right acromioclavicular joint, with circumduction movements of the arm. Provocative tests for impingement were negative. Scapular thoracic movements were normal.
111 Dr Boys thought the plaintiff’s presentation was consistent with minor instability of the right acromioclavicular joint. He considered she had suffered a capsuloligamentous injury to the right acromioclavicular joint as a consequence of the car accident.
112 Dr Boys noted the plaintiff experiences local discomfort and fatigue of the right pectoral girdle. He thought her level of complaint would appear to be stable and he did not believe she would suffer any further deterioration. Non-operative treatment would be advised and ongoing local strengthening exercises would be routinely advised.
113 Dr Boys noted the plaintiff related no specific domestic incapacity. He thought the condition of the right shoulder might limit her resumption of social netball or volleyball activities if desired. These limitations will be ongoing.
114 The plaintiff reported no restrictions on her capacity to perform household tasks and that she was unrestricted in her casual employment.
115 Dr Boys thought the plaintiff’s condition did not impact on her ability to work as a kindergarten assistant or assistant nurse and she was capable of full-time employment as desired in those occupations.
Claim documentation
116 In a TAC medical certificate completed by Dr Lalor on 14 August 2013, he described the plaintiff’s conditions as abdominal pain, leg trauma and thigh and hip trauma.
117 The plaintiff completed a TAC Claim Form on 16 April 2014.
118 Therein, her injuries were again described as leg trauma, thigh and hip trauma, abdominal pain.
119 There were a number of entries from the plaintiff’s Facebook page showing her attending social occasions with family members.
Overview
Causation
120 Causation is in issue in this application, with the defendant denying the plaintiff suffered an injury to her right shoulder in the accident.[31]
[31]T2
121 Counsel for the defendant submitted that the plaintiff did not have a problem with her right shoulder until some years after the accident as Dr Lalor’s notes indicated.
122 On the first post-accident attendance on 30 August 2013, the plaintiff’s complaint related to her right sternomastoid muscle – the muscle going down her neck – not her right shoulder. Dr Lalor then diagnosed a neck injury and arranged investigations in relation thereto.[32]
[32]T43
123 The first mention of a right shoulder problem in Dr Lalor’s notes was in September 2015. By that time, the plaintiff had attended about 10 times for unrelated matters, predominantly relating her IVF treatment, and made no mention of any shoulder complaint.
124 It was submitted it beggared belief, with continuing very bad shoulder pain which she now described as 8 out of 10 on a good day that the plaintiff would not complain to the doctor when being seen for other problems.[33]
[33]T44
125 Further, reliance was placed on Dr Elder’s opinion in his second report that the plaintiff did not suffer a right shoulder injury in the accident given the two year delay in reporting symptoms.[34]
[34]T44
126 It was also submitted Mr Dillon, the treating orthopaedic surgeon, could not explain the plaintiff’s condition and did not think that the SLAP tear was associated with her pain.[35]
[35]T45
127 It was submitted Mr Kossmann should not be accepted because he bases his view on ongoing complaints from the time of the accident.[36]
[36]T47
128 Counsel for the defendant also relied upon the plaintiff’s failure to mention a right shoulder injury when she completed her TAC claim form in April 2014.
129 Despite these factors, on balance I accept that the plaintiff did suffer injury to her right shoulder in the accident during which the car forced the right side of her body hard up against the table as she deposed. Prior to this accident, the plaintiff had not had any right shoulder problems.
130 On initial attendance in August 2013, the plaintiff did mention some muscle and neck tenderness on the right-hand side.
131 As counsel for the plaintiff submitted, the original neck pain complaint was really right shoulder pain and that would explain Dr Lalor’s ready attribution later when the supraspinatus is mentioned back to the transport accident as it is in the same area. It was submitted the plaintiff’s evidence of a right shoulder problem at this early stage should therefore be accepted as she is an honest witness.[37]
[37]T51
132 Whilst the plaintiff did not mention her shoulder in the TAC claim form, I accept that Dr Lalor’s earlier TAC medical certificate formed the basis of what the plaintiff completed on the TAC Claim Form as counsel for the plaintiff submitted. In any event, a neck injury was also not detailed on the Claim Form or the certificate and that was the complaint Dr Lalor noted in August 2013.[38]
[38]T50
133 I accept that the plaintiff had right shoulder pain in the period where there was no complaint to the doctor. It was present on the first attendance in August 2013 and continued thereafter. Her lack of complaint during that period can be explained by her mind being focussed on her IVF treatment during that time.
134 Dr Elder stands alone in his view that the shoulder condition is not related to the accident[39] with the plaintiff’s treaters and Mr Kossmann and Dr Boys accepting there is a causal relationship. Dr Boys in forming this view was aware of the plaintiff’s complaints to doctors following the accident.
On balance, I accept the plaintiff’s evidence that she hurt her right shoulder in the accident and it is a cause of her present right shoulder condition.
[39]T51
Consequences
135 The issue is whether any consequences of the plaintiff’s right shoulder impairment are serious “serious”.
Credit
136 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[40]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[40](Supra) at paragraph [12]
137 Counsel for the plaintiff submitted it was probably a long time since the Court had had such a patently open and honest plaintiff who made concessions about her interests “at the drop of a hat.” Further, there had been surveillance undertaken but no film shown.[41]
[41]T49
138 It was submitted the plaintiff was obviously a stoic, prepared to put up and shut up, shown by her continuing work post-accident and retraining, despite coming home from work in significant pain.[42]
[42]T50
139 Although I found the plaintiff to be a truthful witness, given the level of her plaintiff’s activities at work and home, I find it I find it difficult to accept she has the pain at 8/10 on a good day as she described in re re-examination – a greater level of pain than deposed to.
140 Whilst she is a genuine lady, I would not describe the plaintiff as a stoic as suggested by her counsel. In my view, whilst she does have pain and some restrictions, the plaintiff is largely able to manage her life despite her shoulder injury.
141 Neither Mr Dillon nor Dr Lalor described the plaintiff as having any significant ongoing difficulties in their recent reports. Their view was largely shared by the other medico-legal examiners.
142 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”[43]
[43](Supra) at paragraph [11]
143 I accept that the plaintiff has ongoing pain right shoulder pain of a muscular nature, as Mr Dillon explained.[44] The plaintiff described this in her affidavit as an ongoing and constant pain in her right shoulder and the right side of her neck.
[44]T52
144 In summary, counsel for the plaintiff submitted that in addition to this pain, the plaintiff lacks strength in her right arm, she has problems sleeping and difficulty with doing activities with her arms outstretched, like driving.[45] She does the exercises at home and frequently uses Nurofen, Panadol and gels. She is not a quitter, she is a stoic. She works and at the end of the day, her right shoulder is extremely painful.[46]
[45]T53
[46]T53
145 It was submitted these were the very things that were dealt with in Sutton v Laminex Group Pty Ltd[47] which was a non-operated right shoulder. She is willing to put up with pain but it is there.[48]
[47][2011] VSCA 52; T1
[48]T54
146 In my view however, there has been no significant interference with the plaintiff’s work as a result of her shoulder condition. She currently works more than she was working before the accident in a job that can sometimes be physical. She appears to be coping reasonably well and would do more shifts if they were available.
147 As counsel for the defendant submitted, this situation would not be possible if the plaintiff has the level of shoulder pain she now describes.
148 Counsel for the plaintiff also submitted the opportunity to play sport has been lost to the plaintiff,[49] as has gym work and swimming. She drives, but it causes pain. She has difficulty with some household tasks.[50]
[49]T53
[50]T54
149 However, whilst the plaintiff deposed to playing netball and volleyball before the accident, she had not in fact played since she was a younger woman in Fiji. Her gym activities were part of her preparation for IVF, not a longstanding dedicated gym program, and her swimming was doing laps in her pool when she lived in Perth before coming to Victoria.[51]
[51]T48
150 Whilst the plaintiff deposed to some restrictions on her ability to the housework, she agreed she told a number of medical examiners of very few restrictions in carrying out housework and other domestic activities. She is still able to carry out a range of gardening activities including mowing the lawn. She still goes to restaurants, the pictures and out with family.[52]
[52]T49
151 The plaintiff’s treatment has been conservative, with physiotherapy and a series of injections into her right shoulder. I have no medical evidence however from the practitioner who gave that treatment as to whether further injections or any other treatment is required.
152 Whilst I accept the plaintiff has ongoing pain and requires over-the-counter painkillers and some of her activities are restricted, the consequences of her right shoulder impairment may be “marked”, as counsel for the defendant conceded, but they are not “very considerable”.[53]
[53]T49
153 Taking into account all of the evidence, I am not satisfied that the consequences of the right shoulder impairment can be described as “serious”.
154 Accordingly, the application is dismissed.
- - -
0
3
0