Perera v Transport Accident Commission
[2024] VCC 902
•24 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-04752
| RITA SEPALIKA PERERA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 22 April 2024 | |
DATE OF JUDGMENT: | 24 June 2024 | |
CASE MAY BE CITED AS: | Perera v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 902 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – physical injury to the plaintiff’s right shoulder suffered in a transport accident on or about 15 October 2017 – whether the consequences to the plaintiff are “serious” – pain and suffering and loss of earning capacity – credit of the plaintiff
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards & Anor v Wylie (2000) 1 VR 79; Humphries and Anor v Poljak [1992] 2 VR 129
Judgment: Application for leave to bring proceedings for damages arising from a transport accident which occurred on 15 October 2017 is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A C Dimsey | Easton Legal |
| For the Defendant | Mr A J McG Moulds KC with Ms C Shambrook | Hall & Wilcox |
HIS HONOUR:
1The 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 15 October 2017 (“the said date”).
2Section 93(6) of the Act provides that a court must not give leave under s93(4)(d) unless it is satisfied that the injury is a “serious injury”. The definition of “serious injury” relied upon by the plaintiff is under s93(17):
“(a)serious long-term impairment or loss of a body function.
…”
3In this application, the plaintiff seeks a serious injury certificate from the Court for the loss of body function relating to her right shoulder. The plaintiff claims that the right shoulder injury which occurred during the course of the transport accident has resulted in her suffering from pain, impact on her sleep, and impact on her ability to be employed.[1]
[1]Transcript (“T”) 13
4The enquiry under s93(17)(a) of the Act 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.
5The serious injury definition under s93(17)(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, an impairment of the body function.[2]
[2]Richards & Anor v Wylie (2000) 1 VR 79
6In this application, the plaintiff did not rely upon a mental response to the alleged physical impairment arising from her right shoulder injury.
7In forming a judgment as to whether the consequences of the 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 or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[3]
[3]Humphries and Anor v Poljak [1992] 2 VR 129 at 140-1
8The plaintiff swore and relied upon a total of four affidavits, dated 7 January 2023, 20 November 2023, 17 March 2024 and 18 April 2024. The plaintiff was the only witness required to give evidence, and she was cross-examined by Mr Moulds KC, counsel for the defendant. The fourth affidavit, dated 18 April 2024, was sworn after a full folder of banking records of the plaintiff had been brought to the attention of the parties shortly prior to the commencement of this serious injury application hearing. The hearing was adjourned over a weekend in order to allow the plaintiff to swear that fourth affidavit, explaining the contents of the banking records.
9In addition to the sworn affidavits of the plaintiff, both parties relied upon medical reports, other medical material, and banking records tendered during the course of the proceeding. I have read all of the tendered medical material and banking records, and will refer to the material that is relevant to the determination of this application in these reasons.
10The plaintiff tendered the following documents in support of her application:
· Exhibit “A” – Plaintiff’s Court Book (“PCB”) pages 10-11, 24−34(d), 36-59, 68-76 and 99-105.
11The defendant tendered and relied upon the following documentation:
· Exhibit 1 – Defendant’s Court Book (“DCB”) pages 5-7, 16-39, 40-42, 45 and 67
· Exhibit 2 – Banking records of the plaintiff relating to National Australia Bank Classic Banking Account number 94-475-####, pages 4−103, and National Australia Bank Smart Reward Saver Account 62-314-####, pages 216−256 inclusive
· Exhibit 3 – Letter from the plaintiff to the defendant dated 31 December 2017
· Exhibit 4 – An ABN search and business name search for Rita Professional Services, ABN number 52 901 381 974.
12The parties agree the plaintiff accepted an impairment benefits entitlement in November 2022 for a 19 per cent whole body impairment in respect of her cervical spine, lumbar spine and right shoulder. The settlement of the impairment benefits claim made by the plaintiff followed a joint medical examination by Mr Ponnaren Pak, orthopaedic surgeon, dated 15 June 2022.[4]
[4]PCB 10−12
Issues identified by the parties
13Mr Dimsey, on behalf of the plaintiff, identified the injury relied upon in this application as being a right shoulder injury to the plaintiff as a result of the transport accident. Mr Dimsey submitted that the plaintiff’s injury was adhesive capsulitis to her right shoulder which is a direct result of the transport accident.[5]
[5]T12
14The consequences flowing from the right shoulder injury relied upon by the plaintiff are that she suffers pain, that there is an impact on her sleep, and that her ability to work as a carer for small children has been taken away from her due to the restrictions on manual handling in respect of her right shoulder.
15Mr Moulds KC, on behalf of the defendant, stated that the issues in this application were as follows:
(a) the causation of the right shoulder condition is in dispute;
(b) the plaintiff is required to disentangle the diagnosis of Chronic Pain Syndrome from the alleged right shoulder injury;
(c) the plaintiff fails to establish to the requisite standard, the level of the consequences to her resulting from the right shoulder injury; and
(d) the plaintiff has comorbidities and other medical conditions which impact and influence her ability to continue with work, regardless of any right shoulder injury.
Plaintiff’s background
16The plaintiff was born in Sri Lanka in 1958. At the time of the hearing, the plaintiff was sixty-five years old.[6]
[6]PCB 24
17The plaintiff was married in Sri Lanka in 1978. She had her first baby in 1979 and her second child in 1982.[7]
[7]PCB 24
18Whilst the plaintiff was living in Sri Lanka, she conducted a number of businesses. In the early 1980s, the plaintiff ran a guesthouse and a car-rental business in Colombo; however, that guesthouse closed down in 1983 due to political difficulties in Sri Lanka.[8] The plaintiff later ran a restaurant in southern Sri Lanka. The plaintiff then conducted a prawn farm in north-western Colombo for a period of five years.[9]
[8]T17 and 18
[9]T19
19In 2000, the plaintiff came to Australia and worked as a commercial cook. She remained in Australia for approximately three years until she was required to return to Sri Lanka due to her visa. Upon her return to Sri Lanka, the plaintiff then commenced a pig and poultry farm.[10]
[10] T19
20The plaintiff then returned to Australia in 2013 and commenced her role as the nanny for her two grandchildren, being her daughter, Noeline’s children.[11] The plaintiff was paid the sum of $550 a week as a direct transfer into her bank account from her daughter up until November 2017. The payments then increased to $600 a week thereafter.[12]
[11]T21
[12]T40
21The plaintiff had received payments from both her daughter, Noeline Smart, and former son-in‑law, Greg Smart. These payments were for the childminding of the two grandchildren.[13]
[13] T40
22Whilst in Australia, the plaintiff also conducted a rooming house or student accommodation for students attending at Deakin University.[14] The plaintiff’s evidence in relation to this was that the payments made by the students covered her costs, both of the rent and of feeding the students. As I understood the plaintiff’s evidence, she stated she did not make any income or profit from that undertaking. The plaintiff’s banking records were tendered, and she was cross-examined about those records, however, it did not clarify the situation concerning her income.
[14] T59
23On 29 June 2019, the plaintiff entered into a contract of employment with Vincentian Retirement Services Ltd. The plaintiff’s role was to do essentially all the tasks involved in the preparation of meals for the Vincentian Fathers Community. The nominal hours of work were three hours per day.[15] The plaintiff’s evidence in this regard was that she usually worked five hours a day. The plaintiff remained in that employment for a period of three years up until 28 July 2022 when the Vincentian Fathers left the address at 47 Stanhope Street in Malvern.[16] The plaintiff left Australia on 1 August 2022 for Sri Lanka.[17] The plaintiff remained in Sri Lanka until 8 June 2023.[18]
[15] T44
[16]T42
[17]T42
[18]T71
24The plaintiff separated from her husband in 2016. Her husband (“Bricky”) pays the plaintiff’s “rent”. The plaintiff and her former husband live in the same house, owned by their daughter, Noeline, in Camberwell. This arrangement has been continuing since July of 2022.[19]
[19]T23
25The plaintiff’s paid employment with the Vincentian Fathers ceased due to the contract being terminated. The plaintiff does not work as a carer for her two grandchildren, the children of Noeline, because those children are now school-age and do not require such care. The plaintiff’s three other grandchildren reside in Noble Park and are older than Noeline’s children. The plaintiff has limited contact with them.
26In an email sent to the Transport Accident Commission by the plaintiff dated 31 December 2017 (Exhibit 3), the plaintiff enclosed documents relating to “Child Care - G Smart”, stating this was her claim of loss of earnings she received for caring for his (her son-in-law’s) son and daughter. In the banking records of the plaintiff, the regular payments of $600 per week were made by Noeline Smart, the plaintiff’s daughter.[20]
[20] Exhibit 2, page 58 ff
27In her second affidavit dated 20 November 2023, the plaintiff states she was unable to return to her work as a nanny due to the injury to her right shoulder.[21] I find, and the plaintiff ultimately accepted, that the only childcare or nanny work that she performed in Australia was for her daughter, Noeline, and her daughter’s former husband, Greg Smart. The impression that the plaintiff had been working for other parties as a nanny, which was raised by this affidavit, and the vagueness of the plaintiff’s evidence, is incorrect. The plaintiff is a grandmother and took on the role as a nanny for her daughter, Noeline, and Greg Smart. She otherwise worked for the Vincentian Fathers as a cook. The plaintiff also conducted a rooming house or student accommodation for students from Sri Lanka when they attended at Deakin University. The plaintiff’s current position is that she lives in a house owned by her daughter, Noeline, with her former husband.
[21]PCB 30
28The plaintiff, in her third affidavit sworn on 17 March 2024, states that due to her right shoulder injury, she faces severe financial pressures because she can no longer work. The plaintiff then went on to state, “I struggle with day to day living and even face the risk of homelessness”.[22] The plaintiff, on her own evidence, has lived in a house owned by her daughter since July 2022. The plaintiff had previously lived in that same house from 2014 until 2016 when she separated from her husband. I do not accept that the plaintiff is at any risk of being homeless, as her daughter has provided her parents with a home to live in.
[22]PCB 33
29In terms of the plaintiff’s role as a nanny for her grandchildren, those children have grown up to an age where they do not require full-time childcare. The plaintiff has lost her role as a carer for her grandchildren, due to their maturing years. It is not as a result of her right shoulder injury.
Transport accident involving the plaintiff
30In her affidavit dated 7 January 2023, the plaintiff set out the circumstances of the transport accident as follows:
“On 15 October 2017 at about midday l was driving on Blackburn Road. I had been at Kmart and was returning to my daughter’s home to look after my grandchildren. I was travelling in the left lane when suddenly a car which was travelling in the right lane pulled into my lane immediately in front of me! I had to apply my brakes and the Ute behind me hit me hard from behind. That Ute was then struck from behind by another car and was forced into me again!
I experienced pain in the neck, back and right shoulder. The Police and Ambulance attended the scene but I was not taken to hospital.”[23]
[23]PCB 25
31The defendant accepts that the transport accident occurred in the manner described by the plaintiff.
Treatment of the Plaintiff following the transport accident
Medical treatment for the Plaintiff’s right shoulder
32On Monday, 16 October 2017, the plaintiff attended upon her general practitioner, Dr Srilal Kariyawasam. At that consultation, the plaintiff complained of being involved in a motorcar accident the day before: that is, 15 October 2017. The plaintiff stated she was hit from behind, that she suffered from neck pains and headaches, and needs physiotherapy. The plaintiff was referred for an x‑ray. [24]
[24]DCB 40
33The plaintiff then returned to her general practitioner, Dr Kariyawasam, on 19 October 2017. At that visit, the plaintiff was complaining of numbness in her left hand, neck pains, and headaches.[25] In that examination, it is clear the doctor is examining the left hand rather than the right side.
[25]DCB 41
34It was not until 6 November 2017 that the plaintiff returned to her general practitioner and an ultrasound-guided cortisone injection to the right shoulder for subacromial bursitis was recommended. A right shoulder x‑ray and ultrasound had been performed on 3 November 2017.[26]
[26]PCB 107
35In the tendered documents there was no report from the practitioner who administered the ultrasound-guided cortisone injection to the plaintiff’s right shoulder on or about 3 November 2017.
Mr Christopher Pullen, orthopaedic surgeon
36The plaintiff was referred by her general practitioner to Mr Christopher Pullen, an orthopaedic surgeon specialising in upper limb surgery. In his report to Dr Kariyawasam dated 8 November 2019, Mr Pullen stated that the x‑ray and ultrasound suggest calcific tendinitis.[27] Mr Pullen ordered an MRI scan of the right shoulder. This was performed on 12 November 2019, and the reported conclusion is as follows:
“Motion artefact significantly degrades diagnostic quality.
1.Partial thickness articular surface tear posterior insertional fibres supraspinatus on a background of tendinopathy.
2.Infraspinatus tendinopathy with a musculotendinous junction tear.
3.Subscapularis tendinopathy.
4.No definite direct labral tear visualized, though a paralabral cyst raises suspicion of a tear.
5.Moderate acromioclavicular joint degenerative change. Mild subacromial bursitis.”[28]
[27]PCB 38
[28]PCB 39
37On 2 July 2021, Mr Pullen reported to the plaintiff’s solicitors in this application. In that report, Mr Pullen confirmed that he had diagnosed Mrs Perera as at 8 November 2019 as suffering from right shoulder adhesive capsulitis following a motor vehicle accident. In the body of Mr Pullen’s report, he noted that Dr Manish Jain, radiologist, had noted in an x‑ray and ultrasound scan of the right shoulder dated 2 April 2019, there was evidence of subacromial calcification and acromioclavicular degeneration. He noted that Dr Jain reported the ultrasound scan had shown evidence of calcific tendinitis of the supraspinatus, infraspinatus and subscapularis tendons, and marked limitation of mobility.[29]
[29]PCB 40
38Mr Pullen’s diagnosis was that the plaintiff had suffered a right shoulder partial thickness supraspinatus tendon tear, infraspinatus and subscapularis tendinopathy and a paralabral cyst suggesting a possible labral tear.[30]
[30]PCB 41
39Under the heading of ‘Prognosis’, Mr Pullen stated as follows:
“The prognosis for Mrs Perera’s right shoulder condition is unclear. If she continues non-operative treatment she does risk propagation of her rotator cuff tear that may lead to muscle wasting and joint arthropathy. A successful right shoulder arthroscopy, decompression, and rotator cuff repair could lead to a return to near normal function.”[31]
[31]PCB 42
40Mr Pullen has not seen the plaintiff since 29 November 2019. I note here for completeness that the plaintiff has not undergone any operative treatment to assist in the rotator cuff tear symptoms.
Mr Ponnaren Pak, orthopaedic surgeon
41Mr Pak assessed the plaintiff for the purposes of an impairment benefits claim made by the plaintiff. His report is dated 15 June 2022. In his report, he noted that the plaintiff had a history of type 2 diabetes which had been diagnosed in her twenties. He also noted the plaintiff had had triple bypass surgery due to ischaemic heart disease approximately twelve years prior to his report.[32] Mr Pak noted that –
“The diagnosis affecting the right shoulder would indicate that she has degenerative changes of the shoulder. This is likely to have pre-existed the road traffic accident, but a severe aggravation is not unusual.”[33]
[32]PCB 48
[33]PCB 50
42In Mr Pak’s opinion, the prognosis for the plaintiff’s right shoulder is that –
“… her symptoms may be improved by appropriate treatment in the form of a hydrodilatation or removal of calcific tendinitis. I would still recommend surgical intervention as this is most likely to provide a clinical benefit.”[34]
[34]PCB 50
43Mr Pak noted that the right shoulder was suffering from calcific tendinitis, which is usually a degenerative condition, and not related to the transport accident. In his view, it may likely have been aggravated by the road traffic accident.[35]
[35]PCB 52
Mr Ash Chehata, orthopaedic surgeon
44Mr Chehata examined the plaintiff on behalf of the plaintiff’s solicitors for medico-legal reporting. His report is dated 24 September 2023. Mr Chehata took a history from the plaintiff that she ceased her employment in 2021 as a cook due to the ongoing pain.[36] This history given by the plaintiff is not correct, and Mr Chehata was acting on an incorrect basis in respect of her ability to engage in employment.
[36]PCB 70
45Mr Chehata found that the plaintiff’s impairment was as follows:
“It appears that she has developed ongoing chronic pain on a background of a likely adhesive capsulitic picture superimposed with the adhesive capsulitis and calcific tendinopathy with almost certainly a whiplash style phenomena developing.”[37]
[37]PCB 72
46In terms of the plaintiff’s prognosis, Mr Chehata was sceptical that any operative procedure would be successful, given that it was six years after the transport accident. He then went on to say:
“Certainly, treatment may include one to two hydrodilatations as the capsulitic picture may in fact be the driving force, but with calcific deposition and calcific tendinopathy, this is often a situation that is more reflective of wear and tear than anything else.”[38]
[38]PCB 73
Mr Richard Pennington, orthopaedic surgeon
47Mr Pennington examined the plaintiff for the defendant’s solicitors for the purposes of medico-legal reporting. His report is dated 21 December 2023. Mr Pennington had the advantage of all the medical reports and the radiological examinations of the plaintiff. He stated:
“There are no signs of an acute injury in 6 investigations of the shoulder and cervical spine in the 2 years following the accident. They consistently report calcific tendonitis, which is constitutional problem and not related to trauma.”[39]
[39]PCB 92
48Mr Pennington noted that the plaintiff had complained of left arm tingling two days after the accident. He went on to state as follows:
“Right shoulder pain and cervical spine pain were later investigated on multiple occasions with the constitutional condition of calcific tendonitis being the only significant finding. This supports the likelihood that the accident was not a cause of her current symptoms.”[40]
[40]PCB 96
49He then diagnosed the plaintiff as suffering from calcific tendinitis of the right shoulder. He stated that the symptoms had stabilised.[41]
[41]PCB 96
50It is to be noted that Mr Pennington took a history from the plaintiff which is consistent with her evidence that she was not receiving any treatment from any medical practitioners at the moment, and that she was taking occasional Panadol for pain relief.[42] The evidence in this case was that the plaintiff had a further cortisone injection to her right shoulder on or about 9 February 2024. There was no medical evidence that could give an opinion on what the result of that procedure was for the plaintiff. The plaintiff’s evidence is that she now very rarely takes Panadol for pain relief.
[42]PCB 91
51At the time of the hearing, the plaintiff was taking the following medications to deal with the medical conditions of diabetes and the heart condition and gastritis. The list of medications is as follows:
“Aspirin 100mg Tablet, enteric coated 1 Tablet Daily after meals As directed. Bisoprolol 5mg Tablet 2 Tablets Daily. Breo Ellipta 200/25 200mcg;25mcg Powder for inhalation 2 Doses Twice a day As directed. Cardizem 60mg Tablet 1 Tablet Twice a day before meals As directed. Frusemide 40mg Tablet ½ In the morning As directed. Isobide MR 60mg Tablet, modified release 1 Tablet Daily. Jardiance 25mg Tablet 1 Tablet Daily As directed. Lipidil 145mg Tablet 1 Tablet Daily. Metformin 1g Tablet, extended release 1 Tablet Twice a day. Micardis 40mg Tablet 1 Tablet In the morning. Nicorandil 20mg Tablet 1 Tablet Twice a day. Nitrolingual Pumpspray 400mcg/dose Spray As directed. Novorapid Flexpen 100U/mL Pen device As directed. Optisulin Solostar 100IU/ml Pen device As directed. Ozempic 0.25, 0.5mg/dose Pen device 0.5MG Once a week As directed. Rosuvastatin 40mg Tablet 1 Tablet Daily. Zoton FasTabs 30mg Tablet 1 Tablet Daily.”[43] [43]DCB 67
52On the basis of the medical evidence in this case, I prefer the evidence of Mr Pullen, who is the first treating orthopaedic surgeon in respect of the plaintiff, and that of Mr Pennington, who was the last expert to see the plaintiff after having the advantage of all the radiological examinations and the reports prepared in this case. Both Mr Pullen and Mr Pennington agree that the plaintiff has calcific tendinitis in her right shoulder and that that condition is not related to trauma, as in a transport accident. Mr Pak also accepted that the calcific tendinitis may be a pre-existing condition to the transport accident.[44]
[44]PCB 51
53Mr Chehata is the one opinion that stands out on its own, and, as I have previously noted, he had a wrong history as to the reason the plaintiff ceased her employment as a cook with the Vincentian Fathers. I accept the evidence of Mr Pullen and Mr Pennington that the present condition of the plaintiff’s right shoulder and symptoms is caused by the calcific tendinitis. The plaintiff has been an active person during the course of her life, and her current symptoms are, in effect, a result of the wear and tear of that active life.
Consequences of the right shoulder injury to the Plaintiff
54The plaintiff relied upon her four affidavits, referred to earlier in these Reasons for Judgment, to set out the consequences of the right shoulder injury to her. The essence of the plaintiff’s consequences set out in those affidavits, is that she suffers from pain, there is an impact upon her sleep or sleep patterns, and there is the interference with her ability to engage in employment. This same set of three consequences was outlined and relied upon by the plaintiff’s counsel at the commencement of the hearing.[45]
[45]T13
Sleep
55In her first affidavit, the plaintiff stated that she has great difficulty sleeping, as it is hard for her to get comfortable. She stated as follows:
“I find that if I roll onto my right side in my sleep the arm becomes painful and wakes me. It often takes a while to settle again and return to sleep and as a result I don’t often get a restful night of sleep.”[46]
[46]PCB 26
56In her second affidavit sworn 20 November 2023, the plaintiff stated that she continues to have great difficulty sleeping because of the pain. She stated that she used a special pillow which stabilised her neck and prevented her from rolling onto her right side, resulting in shoulder pain. The plaintiff stated she struggled to get sufficient unbroken sleep, and, as a result, she was usually very tired.[47]
[47] PCB 30
57The plaintiff does not refer to her sleep difficulties in the third and fourth affidavits tendered in this case.
58The plaintiff attended her general practitioner, Dr Kariyawasam, on 26 November 2020.[48] On that occasion, the plaintiff attended complaining of lower back pains. She then stated that she had poor sleep, no early morning wakening, but had low self-esteem and had a depressed mood. This visit to her general practitioner was concerning matters to do with her lower back and/or her psychological status at the time.
[48]PCB 142
59In a history given to Dr Steven Adlard, psychiatrist, in November 2023, the plaintiff stated that her sleep continues to be interrupted by pain and by her noisy husband overnight.[49] The report of Dr Adlard was not part of the tendered documents, but was contained within the court books presented to the Court for consideration prior to the hearing.
[49]PCB 81
60I conclude that there is a multiplicity of reasons why the plaintiff may have sleeping difficulties and a lack of restful sleep. They include low-back pain, psychological reaction to a depressed mood, her husband’s disturbing activities overnight, and her right shoulder. I am not satisfied, on the balance of probabilities, that I can be satisfied that the right shoulder injury is the cause of significant sleep loss in circumstances where there is a multiplicity of causes set out by the plaintiff.
Pain
61The plaintiff has set out in her affidavit her experience of pain in her right shoulder. The plaintiff takes numerous medications, as set out in these reasons earlier, but no longer takes any pain relief. Over the period of time since the transport accident and the time of the hearing, the plaintiff has, on occasion, taken Panadol to ameliorate her pain symptoms. Those pain symptoms included her neck, her back, and her right shoulder. The plaintiff was unable to take opioid pain-relief medication, as it upset her digestive system. The plaintiff has not attended any pain-management practitioners to assist her with control of the pain symptoms that she complains about.
62On the basis of the evidence before the Court, I am not satisfied that the plaintiff’s level of pain reaches the statutory standard of at least very considerable when compared with a range of cases where pain is the most significant consequence.
Impact on employment
63In this case, there was extended cross-examination of the plaintiff in relation to her work. The plaintiff came to Australia in 2013 and effectively was in the role of a nanny looking after her two grandchildren who were the children of Noeline Smart. As time passed and those children grew up, the need for the plaintiff to be in the role of a nanny subsided as the children went to school. The plaintiff then engaged in running an accommodation house for international students. The COVID‑19 pandemic intervened, and the students ceased coming to Australia, and that form of activity and income was ceased. The plaintiff then worked for a period of almost three years as a cook and kitchenhand for the Vincentian Fathers in Malvern. The plaintiff ceased that employment when the contract ran out and the Vincentian Fathers left their premises. The plaintiff then went overseas for an extended period of time to attend a wedding.
64The cross-examination of the plaintiff about the movement of money in and out of her account and the payment of cash to her by both her daughter and her former son-in‑law, together with her former husband, raised a great amount of “dust” around the financial transactions entered into by the plaintiff. This “dust” does not add any clarification to what the plaintiff’s employment arrangements were in the period under examination.
65The plaintiff is now sixty-five years of age, and I do not accept that the injury to her right shoulder is acting as a barrier in her ability to engage in employment. The plaintiff was able to engage in full kitchen activities up until July 2022 when she finished her role as a cook.
66I do not accept that the plaintiff’s ability to engage in employment has been markedly impacted by the right shoulder injury.
Credit of the Plaintiff
67The plaintiff in this case has given evidence and was extensively cross-examined, predominantly about her financial transactions. It was clear from the evidence in this case that the plaintiff has always been financially secure. She had consistent payments, either by way of cash or direct transfer into her accounts, on a regular basis. The source of these payments was predominantly her daughter, Noeline, and her former son-in‑law, Mr Smart. She also receives payments from her former husband.
68In her affidavit dated 17 March 2024, the plaintiff set out the following:
“By reason of my right shoulder injury I can no longer work and I face severe financial pressures. I struggle with day to day living and even face the risk of homelessness. ... Now I find myself trapped in a very difficult situation. I am very concerned and upset about my circumstances.
I recently visited Centrelink to seek assistance and am hoping that I may receive some assistance with income support and possibly some assistance with accommodation.”[50]
[50]PCB 33
69The reality for the plaintiff is that she lives in a home owned by her daughter, Noeline, with her former husband. It is a two-bedroom home, and they live separately in it. There is no suggestion that the plaintiff is required to pay any rent to her daughter. She was never going to be homeless. This is an example of the exaggeration that the plaintiff was prepared to show about her circumstances which requires the Court to carefully analyse the plaintiff’s evidence and the accuracy of the extent of her symptoms.
70The plaintiff does not have her nannying job, as her grandchildren have grown up. The plaintiff’s other forms of income – that is, accommodation for students and the cooking job – have ceased, not because of her right shoulder injury, but because of other circumstances. The plaintiff is not someone who is deliberately trying to mislead the Court, but she was prepared to exaggerate her circumstances in order to achieve a favourable result in this application.
Conclusion
71I accept that the plaintiff may have suffered some symptoms in her right shoulder after the transport accident. The cause of the plaintiff’s current symptoms in her right shoulder are no longer related to the traumatic experience of the transport accident.
72Further, I accept that she has some mild consequences as a result of her right shoulder problems, including some interruption to her sleep and some level of pain. The plaintiff has chosen not to take the recommended medical treatment to alleviate the symptoms in her right shoulder, as is her right, but for that reason, it is not clear that her symptoms will continue into the foreseeable future.
73I am not satisfied, on the evidence before the Court, that the consequences as outlined in this application could properly be described as “at least very considerable” and certainly “more than ‘significant’ or ‘marked’” as required under the legislation.
74I dismiss the plaintiff’s application for a serious injury certification arising out of the transport accident which occurred on 15 October 2017.
75I will hear the parties on costs.
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