Portelli v Transport Accident Commission

[2022] VCC 126

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-21-02502

TERRY PORTELLI	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE PURCELL
WHERE HELD:	Melbourne
DATE OF HEARING:	1 February and 10 February 2022 (via Zoom)
DATE OF JUDGMENT:	17 February 2022
CASE MAY BE CITED AS:	Portelli v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2022] VCC 126

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:              Serious injury – credit – comorbid conditions – impairment consequences

Legislation Cited:      Transport Accident Act 1986

Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Kovacic v Transport Accident Commission [2016] VSCA 139; Richards v Wylie (2000) 1 VR 79

Judgment:                  Leave granted to commence a common law proceeding for damages

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Ingram QC with Mr Y C Chen	Carbone Lawyers
For the Defendant	Mr S Smith QC with Ms D Manova	Solicitor to the Transport Accident Commission

HIS HONOUR:

Introduction

1The plaintiff, Mr Terry Portelli, is currently a fifty-three-year-old single man.  He has three children from previous relationships.  He currently lives on his own in a small coastal village along the shipwreck coast in western Victoria.

2To describe the plaintiff as having had a difficult life would be an understatement.  He was the subject of abuse as a child and he has been involved in numerous traumatic events in his life, and several events in which he suffered physical or psychological injury.

3A brief highlight reel of various traumatic events in which the plaintiff has been involved (and this is not intended to be exhaustive) is as follows:

·        subject to physical and other abuse as a child, including being shot in the face with an air rifle by an older brother;

·        a transport accident in approximately 1975, involving injury to the left leg;

·        a significant motor vehicle accident when riding a motorcycle on 25 April 1987, involving fracture to the right tibia and fibula with surgical intervention and a shortening of the right leg;

·        in the early 1990s an attempted suicide by hanging, with subsequent psychiatric intervention and inpatient treatment;

·        a work-related neck injury in approximately 2000, subsequently requiring an anterior cervical discectomy and fusion at C6-7;

·        further transport accident in January 2009, in which a range of injuries were suffered after a vehicle rollover;

·        a diagnosis of pericarditis requiring a stent in approximately 2010;

·        an incident in approximately 2010, when the plaintiff was charged with arson after setting fire to a neighbour’s house;

·        a significant left arm fracture (and possibly a skull fracture) requiring surgery after an assault by one of his brothers;

·        a significant work-related left ankle injury on 22 March 2016, involving disrupture of the anterior talofibular ligament and requiring surgical repair, but with subsequent significant ongoing left ankle pain and symptoms, now requiring the use of a crutch for mobility;

·        a further assault upon the plaintiff and police intervention after an altercation with a landlord in approximately 2018.

4In short, the plaintiff has a range of unrelated, co-morbid physical and psychological ailments.  In that setting, he was involved in a transport accident on 1 March 2017, when driving home from a physiotherapy appointment, when he was rear-ended by a truck on Breakwater Bridge in Geelong (“the accident”).

5Again, considering the plaintiff’s history, this is obviously a complex case.[1]

[1]As described by Dr David Weissman, consultant psychiatrist, in a report dated 26 October 2018 at Plaintiff’s Court Book (“PCB”) 201

This proceeding

6Against that background, this is a proceeding brought by the plaintiff pursuant to s93(a) of the Transport Accident Act 1986 (“the Act”), seeking the leave of the Court to commence a common law proceeding.

7Specifically, the plaintiff claims to have suffered a serious injury by way of a “serious long-term impairment or loss of a body function”, namely either a right shoulder injury and/or a temporomandibular jaw (“TMJ”) disorder/injury.

8In respect to one or the other of the claimed serious injuries, Senior Counsel for the plaintiff informed the Court that reliance was placed principally upon pain and suffering consequences, which is perhaps not surprising in circumstances where the plaintiff remains in receipt of WorkCover weekly payments and has not worked since suffering the left ankle injury on 22 March 2016.

9Senior Counsel for the defendant informed the Court that causation was not an issue.  The defendant rather disputed that either of the claimed injuries were “serious” and, in addition, raised the credit of the plaintiff as relevant to the assessment of the “seriousness” of any transport accident-related injury.

10The application proceeded with the plaintiff’s oral evidence. He was cross-examined appropriately about the contents of affidavits sworn by him in support of this proceeding and as to other relevant matters.  The proceeding was then adjourned until 10 February 2022, so that his longstanding treating general practitioner, Dr Brynn Harrop, could attend to give oral evidence.  The parties otherwise tendered the affidavits, medical reports, and relevant material.  I have considered all the tendered material together with the oral evidence of the plaintiff and Dr Harrop.  I shall refer to that evidence to the extent necessary in these reasons.

Credit

11It is convenient at this early stage to deal with the issue of credit.  That is because the issue of credit was raised front and centre by the defendant, but also because much of the plaintiff’s oral evidence was inconsistent with his affidavit evidence and some of the documentary evidence, such as clinical records. His credit was very much a “live issue”.

12The credit of the plaintiff is obviously a relevant issue in determining the seriousness of the injuries relied on by him.[2]

[2]Johns v Oaktech Pty Ltd [2020] VSCA 10

13As already mentioned, the plaintiff has had a terribly difficult life and a traumatic upbringing.  I suspect that the man he is today is, to some extent, shaped by his early life experiences.  I have sympathy for him and what he has been through.  Having said that, he was a difficult witness.  He preferred argument rather than answering questions.  He treated the Court and the legal practitioners with a lack of respect, and, even with an allowance for a remote hearing, he did not respect the formality of the court process.  His demeanour towards Senior Counsel for the defendant was such that he had to be ‘removed’ from the virtual hearing, by disabling his video, during final submissions.

14It is clear from the evidence that medical practitioners have found him to be a quarrelsome person.  He gave evidence about his treating general practitioner in a disrespectful manner, in circumstances where he has been fortunate to obtain a doctor who is prepared to put up with him and who has invested considerable time in attempting to assist him with his various complaints, both physical and psychological. 

15In short, he presented in an unlikeable manner and much of his evidence was irrelevant, argumentative, and unreliable. Having said that, I suspect the plaintiff’s presentation in the witness box is consistent with how he presents in general.

16I accept that there is an issue of credit and his evidence, in many respects, is unreliable, but I do not consider that it arises out of any attempt on his behalf to be dishonest.  Indeed, on occasion when he answered questions rather than arguing the toss, he gave evidence that could be said to be against his interests.  For example, when asked in re-examination whether his claimed right shoulder injury interfered with his hobby of fishing, he said “no, because I just switch the handles on me (sic) reels from right to left to make them left handed reels”.[3]  But, the unreliability of his evidence does mean that his evidence of impairment and impairment consequences must be carefully considered by reference to the objective evidence in respect to each claimed ‘serious injury”.

[3]Transcript (“T”) 79, Line (“L”) 25-27

The right shoulder injury

17The defendant accepts that the plaintiff suffered a right shoulder injury in the accident.  The issue in dispute was described by Senior Counsel for the defendant as “range and the comorbidities”, but that there was no causation issue.[4]

[4]T53, L 2-3

18The right shoulder injury was described by the plaintiff’s treating general practitioner, Dr Harrop, during his oral evidence, as “a tear in one of the tendons and an inflammation in the bursa”.[5]  That is consistent with what he said in his most recent report of 31 January 2022,[6] where he described:

“… Right sided subacromial bursitis causing persistent R shoulder pain. This has been treated with exercises, NSAIDs, and 3-6 monthly cortisone injections. These treatments will likely be ongoing. Associated hand stiffness and reduced function.”[7]

[5]T124, L7-8

[6]Plaintiff’s Further Amended Court Book (“PCB”) 324

[7]PCB 324

19During his oral evidence, Dr Harrop confirmed that the plaintiff requires a cortisone injection into the right shoulder approximately once every four months.  He accepted that the cortisone injection provided the plaintiff with symptomatic relief, but that it was likely to be the ongoing treatment for the shoulder, as he said, “with everything else going on”.[8]

[8]T124, L15-16

20In respect to the impact of the right shoulder injury on the plaintiff, Dr Harrop said in re-examination that:

“I think I did mention at one point basically the shoulder injury stopped him being able to enjoy - his quality of life has gone down significantly. Fishing was one of his few enjoyments that he still sort of had and he's unable to do that. He's, I think, significantly restricted in terms of even just lying on that side, so not only is he getting pain in the face on that side, he's getting pain in the shoulder when he lies on it. He's got restriction in movement. I think that's - it's definitely got an impact, significant impact.”[9]

[9]T120, L26 – T121, L5

21The treatment for the right shoulder has otherwise been conservative, including physiotherapy treatment with Mr Steve Stahl, physiotherapist, at Corio Bay Health Group.  In his most recent report of 1 October 2021, Mr Stahl said that the plaintiff’s presentation was typical of subacromial pain syndrome – likely a combination of inflammation and irritation of the bursa.[10]  He said the accident was likely a significant contributing factor to the right shoulder injury and he noted that the shoulder injury had impacted on the plaintiff’s ability to do household chores, garden maintenance and recreational activities, but that he had also treated the plaintiff for a “chronic left ankle injury” that was work related and also impacted on all of those activities.[11]

[10]PCB 31

[11]PCB 32

22Mr Ash Moaveni is an orthopaedic surgeon who has examined the plaintiff for medico-legal purposes at the request of his solicitors and has provided reports dated 25 November 2020[12] and 8 November 2021.[13]  In his first report, Mr Moaveni described the plaintiff suffering a significant injury to the right shoulder.  He diagnosed “right shoulder rotator cuff tendinosis with full-thickness supraspinatus tear with labral tear and AC joint arthritis”.[14]  He said, in that report, that he did not believe the plaintiff would benefit from surgical intervention.  In his more recent report, he repeated his opinion regarding diagnosis.  He said that the right shoulder injury was likely to have occurred at the time of the accident and also likely aggravated degenerative changes in the plaintiff’s right shoulder.  He recorded that the plaintiff had significantly increased right shoulder pain and reduced function, and that the condition had deteriorated since his first report.  He described the prognosis for further recovery as “poor”.[15]  In that report, he recommended up-to-date review by an orthopaedic surgeon and up-to-date imaging.  He also described appropriate treatment to include cortisone injections and physiotherapy and that surgery may also be considered.[16]

[12]PCB 124

[13]PCB 131

[14]PCB 128

[15]PCB 136

[16]PCB 138

23Mr Gary Speck is an orthopaedic surgeon who has examined the plaintiff at the request of the defendant and provided reports.  In a report dated 22 November 2021,[17] Mr Speck set out his review of material provided to him, his examination findings, history and diagnosis.  Relevant to the right shoulder he said:

“His right shoulder appears to have sustained injury at the time of the transport accident in terms of soft tissue injury to an area where he has previously had symptoms, with ongoing pain and restriction.”[18]

[17]Defendant’s Court Book (“DCB”) 37

[18]DCB 62

24He said, further, that he did not expect any improvement of the symptoms relating to the right shoulder.  He described the plaintiff’s right shoulder as “a restriction in terms of some activities but the left can still be used”.  He said, further, the plaintiff’s right shoulder “would limit him in terms of physical activities”.[19]

[19]DCB 64

25In a supplementary report dated 25 January 2022,[20] Mr Speck considered further material.  He repeated his diagnosis of a soft-tissue injury of the right shoulder.  He described that the plaintiff “has associated features suggestive of a somatic symptom disorder or chronic pain syndrome”.[21]  He was asked to review the reports from Mr Moaveni and, having done so, he said:

“I would accept that a soft tissue injury to the right shoulder may have occurred in the transport accident with persisting symptoms … .”[22]

[20]DCB 67

[21]DCB 70

[22]DCB 71

26As already noted, this is a complex case, but in that setting, and notwithstanding the numerous medical reports tendered by the plaintiff and the defendant respectively, there is no other relevant medical opinion regarding the right shoulder.

27Regarding the right shoulder, in his first affidavit,[23] the plaintiff said that:

“Since the 2017 Transport Accident, I suffer right shoulder pain radiating from my right shoulder down into my right arm. The pain is much worse when l move I struggle to perform even the most basic self-care tasks such as bathing, grooming, dressing, eating and drinking. The pain varies from a pinch to an ache.

The pain in my right shoulder affects my ability to lift my right arm at a right angle and reach behind my back. This produces sharp pain and l struggle to lift anything above my shoulders. This affects my ability to do household chores, recreational activities and any form of work. My ability to engage in repetitive activities is limited due to my neck and right shoulder pain. l try my best and l am often forced to get on with life, but it is not easy, and it isn‘t without its pain.”[24]

[23]Affidavit of the plaintiff sworn 7 November 2019 at PCB 13

[24]PCB 13-14

28In his further affidavit,[25] the plaintiff described ongoing pain in the right shoulder.  He said the pain is variable and, when significant, disturbs his sleep, waking him up several times a night after rolling onto the right shoulder.  He said he continued to wear a shoulder brace at times.  He described a restriction in the range of movement in the right shoulder and that the pain was aggravated “by moving [his] right shoulder away from [his] body or above [his] head”.[26]

[25]Sworn 21 December 2021 at PCB 17

[26]PCB 18

29During his oral evidence, the plaintiff described the symptoms in his shoulder.  In re-examination he said he obtained relief for a period from the cortisone injections administered by Dr Harrop.  He said “[L]ike for about four months I’m really good where I don’t feel the shoulder much”.[27]

[27]        T72, L7-8

30Despite his presentation and the unreliability of aspects of his evidence, his oral evidence regarding his right shoulder is broadly consistent with the objective evidence in clinical records and the medical opinions in the reports tendered by the parties.

31In my opinion, consistent with the majority of medical opinion, in the accident the plaintiff suffered injury to the right shoulder, as described by Dr Harrop and Mr Moaveni as involving a tear of the supraspinatus tendon and bursitis.  That injury has caused ongoing fluctuating pain in his dominant right shoulder/arm, with a restriction of movement and interference of day-to-day activity that involves the full use of the right shoulder.  He requires regular cortisone injections into the shoulder, which provide symptomatic relief from shoulder pain for a period, but no cure for the injury or the pain from it.  The prognosis is for ongoing fluctuating shoulder pain, with probable further deterioration, ongoing impairment of shoulder function and the need for regular cortisone injections to manage the pain.

32While there may be some element of the plaintiff’s presentation both in general and specific to the right shoulder that reflects a psychological reaction, the medical evidence as discussed diagnoses an organic injury to the right shoulder.  It is that organic condition that causes the shoulder pain and the need for the intervention by way of cortisone injections.

33The defendant’s position is that the plaintiff has not demonstrated “very considerable” consequences from the shoulder injury, because, effectively, he has “very considerable” consequences from one or the other of his comorbid conditions.

34As was said by Weinberg and Beach JJA in Kovacic v Transport Accident Commission:[28]

“The judge’s reasons for rejecting the applicant’s case centred on what the applicant had lost by way of social, domestic and recreational activities. While what has been lost by way of social, domestic or recreational activities has the capacity to bear upon the seriousness of the consequences of an injury, it is of course all of the relevant consequences of an injury that must be considered in determining whether or not an applicant has satisfied the ‘very considerable’ test referred to in Humphries v Poljak. In the present case, that required the judge to take into account all of the ‘pain and suffering’ consequences of the applicant’s neck injury in addition to what might have been lost by way of social, domestic or recreational activities.”[29]

(Footnotes omitted.)

[28][2016] VSCA 139

[29](Supra) at paragraph [18]

35On my assessment, the plaintiff has significant pain and suffering because of the right shoulder injury.  The pain is persisting and requires an invasive procedure by way of cortisone injection at least once every four months.  There is also the prospect of shoulder surgery.  While I agree the plaintiff has a range of comorbid conditions that impact on his level of day-to-day function, that should not diminish the fact that he has significant pain and interference for day-to-day function from his right shoulder.

36The plaintiff’s Senior Counsel made some attempt to introduce an argument that the plaintiff had suffered some form of pecuniary loss consequences because of the right shoulder injury, but I reject that submission.  The plaintiff has a significant ongoing left ankle injury, for which he receives WorkCover certificates of total incapacity from Dr Harrop and for which he remains in receipt of WorkCover weekly payments.  He gave candid evidence about his restrictions from that left ankle injury and, in my view, it precludes the plaintiff from any employment now or in the future.  In circumstances where he is unemployable from the pre-existing unrelated left ankle condition, he cannot demonstrate any pecuniary loss consequences from the right shoulder.

37In my view, the combination of the pain, the ongoing treatment (cortisone injections and physiotherapy exercise), the potential for surgery, the reduction in the range of movement and interference for simple day-to-day activity, such as reaching or lifting with the dominant right arm, are such that, notwithstanding the comorbid conditions, the plaintiff has a “very considerable” pain and suffering consequence from the right shoulder injury.  

Temporomandibular Jaw Disorder

38Because of the conclusion that the plaintiff has a “serious injury” from the right shoulder injury it is, strictly speaking, unnecessary to consider the further injury relied on by him as a “serious injury”, namely the TMJ disorder. But as the parties tendered a significant amount of evidence regarding that condition, and there was detailed cross-examination of Dr Harrop regarding it, I consider it appropriate that I deal with the TMJ claim for “serious injury”.

39The defendant accepts that the plaintiff suffered a physical injury that caused TMJ dysfunction.  But the defendant submitted that the physical injury has been overwhelmed by a psychological response, and in support of that submission it relied upon the oral evidence of Dr Harrop, which I will come to in a moment.

40The plaintiff set out in his affidavits the onset of the TMJ dysfunction and the consequences to him from that.  Whereas his evidence regarding the right shoulder was broadly consistent with the medical evidence, aspects of his evidence regarding TMJ dysfunction were more difficult to follow.  For example, with considerable theatrics, during his oral evidence he removed his dentures and displayed them for the Court to see.  In his affidavit he described pain in the vicinity of his jaw, with difficulty opening his mouth, using his dentures, and chewing food.  That evidence needs to be assessed considering the objective evidence.

41In a letter dated 3 August 2017, Dr Harrop referred the plaintiff to Mr Peter Terry, physiotherapist, for opinion and management of right-sided TMJ dysfunction.  In that referral, Dr Harrop noted the plaintiff had trouble chewing and it hurt to put his dentures in.[30]  In a report written soon after to the plaintiff’s previous solicitors, Dr Harrop said that the plaintiff had “likely TMJ dysfunction”.  He said it was unusual for the plaintiff’s condition to have continued as long as it had, and that he thought the plaintiff “should respond to physiotherapy for the TMJ dysfunction”.[31]

[30]PCB 35

[31]PCB 36

42Next, by a referral dated 28 March 2018,[32] Dr Harrop referred the plaintiff to an organisation called Pain Matrix for what he described in the referral letter as a right-sided myofascial pain syndrome following the accident.  There is no evidence that the plaintiff ever attended Pain Matrix. Then, by letters dated 21 July 2021,[33] the plaintiff was again referred by Dr Harrop for treatment for the TMJ, this time to Newtown Dental for what he described as “persistent R sided dental and TMJ pain” and also to Corio Bay Health Group (Mr Steve Stahl) in part for right-sided TMJ.  There has been no attendance at Newtown Dental, but the plaintiff has re-attended Mr Stahl for physiotherapy treatment.

[32]PCB 38

[33]PCB 39 and 44

43In his most recent report, of 31 January 2022, Dr Harrop set out the plaintiff’s persisting TMJ complaint as follows:

“Right sided myofascial pain syndrome causing persistent R jaw pain.  This provides unrelenting R jaw pain, pain with chewing, unable to keep dentures in place, and soft diet only.”[34]

[34]PCB 324

44During his oral evidence, Dr Harrop said that the plaintiff’s TMJ dysfunction and pain associated around that had been the biggest complaint the plaintiff had made to him.[35]  Dr Harrop had recorded TMJ in the TAC medical certificates created by him at each attendance with the plaintiff.  He said further that the plaintiff’s jaw was not just TMJ dysfunction, but “it’s a chronic regional pain syndrome that he gets around his jaw”.[36]  Following up from that answer, Dr Harrop was cross-examined about whether the chronic regional pain syndrome was psychologically based.  He said it was “a combination”.[37]  He gave evidence that the plaintiff was a man predisposed to a chronic regional pain syndrome because of his co‑morbid conditions.  He was then asked whether the TMJ dysfunction was predominantly a psychologically driven condition, to which he said “Yes, I agree.  It’s coming from his brain.  It’s probably coming from a physical thing in his brain, we just can’t test for it yet.”[38]

[35]T102, L8-11

[36]T103, L11-13

[37]T103, L30

[38]T105, L12-15

45Dr Harrop was cross-examined and then re‑examined about the opinions from Associate Professor Jack Gerschman, who is a registered specialist in oral medicine (dental qualification).[39]   Dr Harrop was taken to the opinions expressed by Associate Professor Gerschman and ultimately asked whether there was anything in such opinions with which he disagreed, and said “No.”[40]

[39]PCB 58

[40]T120, L3

46Dr Harrop’s evidence, as I understood it, was that the plaintiff suffered a physical injury by way of TMJ dysfunction, but that the consequences of that physical injury were being amplified by a psychologically mediated pain response, in the setting of the plaintiff being a man vulnerable to a chronic pain response because of his life experiences.  That culminated in the submission from the defendant, to which I shall return, that the predominant cause of the plaintiff’s TMJ dysfunction was now a psychologically based condition, and as such, given that the plaintiff did not rely upon a discrete psychological injury as a “serious injury”, the claim in respect to TMJ dysfunction must fail.

47Associate Professor Gerschman lists a special interest in temporomandibular disorders[41] and he provided two reports regarding the plaintiff.  In his first report, dated 20 March 2019,[42] he set out the history presented to him, his findings on examination, and then provided his analysis.  In respect to diagnosis, he said:

“The diagnosis of the injuries sustained following the two traffic related accidents have been detailed previously in this report, including the need for extraction of all his remaining teeth and replacement by full upper and lower dentures and the development of a right-sided temporomandibular disorder with associated tinnitus and chronic headaches and the development of a psychological injury.”[43]

[41]        PCB 58

[42]PCB 58

[43]PCB 66

48In respect to prognosis, Associate Professor Gerschman said as follows:

“1. Denture problem

The denture problems can be easily solved by cutting back and polishing the section of the lower denture which appears to be overextended causing the gum tissue to be inflamed and painful.

2. Temporomandibular Disorder (TMD)

I believe that the CT scan and MRI of the temporomandibular joints and associated areas was normal.  This confirmed that the TMD was primarily of a myogenous nature (muscle based).

Specialised TMD physiotherapy, targeted home exercises, muscle relaxant medication and anti-inflammatory medication was recommended as necessary.

In a dentate patient (has his own teeth) and who also grinds and clenches during sleep (bruxism) a night splint (guard) may be of assistance.

A night splint may constructed over existing dentures, but is difficult to wear especially currently, due to denture abrasion of the mucosal tissues.

The general prognosis, given negative findings on the scans is good.  The right frontal headaches are also likely to improve with TMD treatment.”[44]

[44]PCB 66

49Associate Professor Gerschman re‑examined the plaintiff and provided a further report, dated 25 November 2021.[45]  Again he set out his history, examination findings, and analysis.  In respect to diagnosis and prognosis, he said as follows:

“5.1 Diagnosis

Diagnosis of the injuries sustained following the two traffic related accidents have been detailed previously in this report, including the need for extraction of all his remaining teeth and replacement by full upper and lower dentures and the development of a right-sided Temporomandibular Disorder with associated tinnitus and chronic headaches and the development of a psychological injury.

Facial numbness every couple of days involving particularly the right cheek and jaw region, then his right sided gums becoming numb has been highlighted.  The major pain issue following the latest accident in March 2017 has focused on the jaw and right side of the face.  The claimant has chronic pain which seems to be focused on the right temporomandibular joint.

6.2 Prognosis

1. Denture problem

The denture problems could be easily solved by cutting back and polishing the section of the lower denture which appeared to be overextended causing the gum tissue to be inflamed and painful.

2. Temporomandibular Disorder (TMD)

I believe that the CT scan and MRI of the temporomandibular joints and associated area were normal.  This confirmed that the TMD was primarily of a myogenous nature (muscle based) with associated neurological issues as previously indicated.  Specialised TMD physiotherapy, targeted home exercises, muscle relaxant medication and anti-inflammatory medication were also recommended as necessary.  Mr Portelli further claimed that he suffered pain associated with the right TMJ joint and associated muscles as well as pain in the right temporal area which he considered to be a headache.  He also reported numbness in the right cheek and jaw and his gums on the right side.  In a dentate patient who also grinds and clenches during sleep (bruxism) a night splint (guard) may be of assistance.  A night splint may constructed over existing dentures, but is almost impossible to wear due to its bulk and denture abrasion of the mucosal tissues.”[46]

[45]PCB 78

[46]PCB 88

50Further, in his most recent report, Associate Professor Gerschman said that stabilisation had not yet occurred because the plaintiff had not been provided with his recommended treatment.  He described the TMJ injuries/‌conditions as consistent with the accident, and as likely to continue into the foreseeable future.  Relevant to the submission of the defendant regarding the psychological aspect of the condition, Associate Professor Gerschman said:

“His diagnosis has been challenging requiring specialist medical and Dental understanding, paving the way for more understanding of related medical/dental injuries for individuals with similar injuries.  Since the the joint diagnosis of Trigeminal Nerve injury related to the TM Joint, it supports a substantive organic basis diagnosed by Prof Davis and myself.

...

The prognosis of the TM Joint Disorder and associated Trigeminal Nerve is not likely to improve.”[47]

[47]PCB 93

51Pausing here, it was this diagnosis by Associate Professor Gerschman of a substantive organic basis for the TMJ that was specifically put to Dr Harrop and with which he did not disagree during his oral evidence.[48]

[48]        T120, L3

52Associate Professor Stephen Davis is a neurologist who assessed the plaintiff and provided a medico-legal report dated 29 November 2018.[49]  In that report he took a history in respect to the plaintiff’s TMJ and symptoms.  Relevantly, he said:

“His history is complex and issues before the accident included the left ankle, right ankle and cervical spine in particular together with prominent psychological issues.

The major pain issue following the latest accident in March 2017 has focused on the jaw and right side of the face.  He has chronic pain which seems to be focused on the right temporomandibular joint and he feels that there is a malalignment of the jaw.  l think that the principal problem does relate to the temporomandibular joint but have not been provided with any imaging information about the joint.  Although he suffered an impact to the head in this accident, there was no loss of consciousness and no traumatic brain injury.

l think that right sided temporomandibular-generated jaw pain is the chief diagnosis in his case.  He does not describe typical trigeminal neuralgia but there may have been some impact to the trigeminal nerve and he does describe these intermittent stabbing pains in the right ear, rather than the face.  He may have a component of “atypical facial pain”, possibly mediated through trigeminal dysfunction but I think the chief problem is the temporomandibular joint, bearing in mind also the complex psychological issues and previous impairments.”[50]

[49]PCB 207

[50]PCB 211

53The only other opinions relevant to the TMJ are from the treating physiotherapists.  Mr  Terry was the first physiotherapist to treat the plaintiff.  In a letter to Dr Harrop dated 9 November 2017,[51] he said that he had treated the plaintiff for a range of injuries including TMJ dysfunction.  In a report dated 12 January 2018, he noted the plaintiff had new dentures that had helped with his chewing and described the TMJ pain as mild and “not a significant issue”.[52]

[51]PCB 47

[52]PCB 48

54Mr Stahl is the most recent physiotherapist who has also treated the plaintiff.  He has provided several reports.  He took over the treatment of the plaintiff in May 2019.  In a report, dated 1 October 2021, he says of the TMJ:

“It is likely that the accident was a significant contributing factor to Terry’s right jaw pain, although he may have had some pre-existing issues given his denture history.  This is not my area of expertise.”[53]

[53]PCB 32

55In that report Mr Stahl otherwise noted he had then not assessed or treated the plaintiff since March 2020, but in respect to prognosis he said:

“The right TMJ injury has a good prognosis with exercise and localised treatment considering that structural issues were not found by the specialist in one of Terry’s medical examinations and he considered the issue to be myogenic.”[54]

[54]PCB 33

56Mr Stahl reported again on 22 November 2021, seemingly after the plaintiff returned to see him for treatment somewhere around that time.  He then noted the plaintiff had not had any treatment for his right TMJ and discussed the opinion from Associate Professor Gerschman.  Following up from that report his most recent correspondence is a request to TAC for funding for a burst of physiotherapy.

57The diagnosis in respect to the TMJ is more complicated than the right shoulder.  Dr Harrop’s described both a physical and a psychological component to the TMJ symptoms.  But a consideration of the whole of the evidence tends to the conclusion that the predominant problem is an organic condition, consistent with the opinions from Associate Professor Davis and Associate Professor Gerschman, and with whom Dr Harrop in his oral evidence ultimately agreed.  Whilst there may be psychological factors that amplify the plaintiff’s TMJ symptoms, that amplification can be considered as part of the physical injury.[55]

[55]Richards v Wylie (2000) 1 VR 79

58Having considered a body of evidence, I conclude that the plaintiff has a persisting organic TMJ disorder.  It may be amenable to some further treatment, such as new dentures, but is likely to persist, and in my view is “long-term”.  The plaintiff has experienced significant pain, with difficulty chewing and eating.  The pain and inability to enjoy a normal diet is, of itself, enough on my assessment to cause a “very considerable” consequence.  He has required physiotherapy and general practitioner treatment for the condition.  The pain causes some further interference for sleep.  All things considered, I accept that there is a “very considerable” pain and suffering consequence from the organic TMJ injury.

59Therefore, in isolation, I am also satisfied that the TMJ injury produces a “very considerable” pain and suffering consequence for the plaintiff.

Summary

60For the reasons given, I am satisfied that the plaintiff has suffered a “serious injury” due to the pain and suffering consequences individually from each of the claimed right shoulder injury and the claimed TMJ injury.  Leave will be given to the plaintiff to commence a common law proceeding for injuries suffered in the accident, and I will otherwise hear from the parties as to the appropriate form of cost orders.