Rosa v TAC
[2012] VCC 309
•26 March 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-10-02094
| Giovanna Rosa | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 & 24 February 2012 | |
DATE OF JUDGMENT: | 26 March 2012 | |
CASE MAY BE CITED AS: | Rosa v TAC | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 309 | |
REASONS FOR JUDGMENT
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Catchwords: Serious injury application – Transport Accident Act 1986 (Vic) – s 93(17)(a) – serious long-term impairment or loss of a body function –injury to the right shoulder – pain and suffering
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Keogh S.C. | Slater & Gordon |
| With Ms M. Pilipasidis | ||
| For the Defendant | Mr G. Lewis S.C. With Ms R. Annesley | Transport Accident Commission |
HER HONOUR:
1 The 66 year old plaintiff applies under s 93 of the Transport Accident Act 1986 (Vic) (the Act) for leave to issue proceedings for the recovery of damages for pain and suffering only in respect of an injury to her dominant right shoulder resulting from a transport accident on 27 April 2005 when the car she was driving through an intersection on a green light was struck on the driver’s side by another vehicle. The injury relied upon includes damage to the supraspinatus tendon of the right shoulder, as well as tendonitis and bursitis.
2 The defendant says that the Court should have reservations about whether the right shoulder symptoms are the product of natural degeneration, and says that Mr Kevin King’s report is of limited assistance because he did not get a history of a right shoulder problem which the plaintiff had suffered prior to the transport accident and which had been investigated radiologically at that time. The defendant also says that even if the transport accident is a cause of the plaintiff’s present right shoulder symptoms, other pre-existing conditions, such as back pain, claudication in the legs, and problems in the left shoulder and in both knees, have substantially affected her mobility and continue to do so. Finally, the defendant says that even if the pain and suffering consequences of the right shoulder are marked, they are not “very considerable”. In this regard, the defendant says that the plaintiff needed help with house cleaning and cooking before the transport accident, that she continues to be very active (dancing weekly), and that from May 2005 to 2009 she saw her doctor on 100 occasions without mentioning the right shoulder.
3 The plaintiff concedes that since 2000 she has suffered from a number of serious health conditions including diabetes, hypertension, sarcoidosis, claudication in her lower limbs, coronary artery disease, lower back pain, left shoulder pain, and problems with both knees. She has had surgery including coronary artery stents and removal of her gall bladder. In addition, she agrees that she saw her doctor twice in May 2004 for right shoulder tenderness and restricted range of movement for which she was prescribed Celebrex. She says that this was the only reference to her right shoulder in an extensive and well-documented medical history.
4 Since the transport accident, she agrees that she has had a number of angioplasty and femoral bypass procedures in the right and left leg for her claudication problem[1] and that she has developed gastric problems secondary to her diabetes. She agrees that from time to time these conditions and the related surgeries have restricted her activities. However, her longstanding treating general practitioner says that her coronary artery disease, peripheral vascular disease and lower back pain are very stable and well controlled and do not result in any restrictions. On the other hand, the plaintiff says that since the transport accident she has suffered right shoulder problems. She has had treatment (including physiotherapy for three years) for her right shoulder symptoms. In spite of that treatment, the problems in her right shoulder are ongoing and significantly restrict her activities and impact on her enjoyment of life. She says that in all the circumstances, the pain and suffering consequences of her right upper limb impairment are more than “significant” or “marked” and at least “very considerable”.[2]
[1]The procedures in the right leg were carried out in January 2006, May 2007 and September 2007. There were procedures in the left leg in early 2008.
[2]Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis & Ors [1998] 3 VR 833.
The hearing
5 The plaintiff, her daughter (Ms Ivana Cookson) and her treating doctor (Dr Sameh Mikhail) gave evidence at the hearing. Court books were tendered by each party. I have considered all the oral and documentary evidence relied upon by the parties.
Plaintiff’s evidence
6 At the hearing, the plaintiff adopted affidavits[3] in which she set out the sequelae of her right shoulder injury. These may be briefly summarised. She says that she cannot raise her right arm, which affects her ability to dress, toilet, dry her hair, and to lift any heavy pots in the kitchen. She cannot swim properly in her pool. She can only dance slow dances with the right arm kept by her side. Sewing used to be her passion and she used to work making wedding gowns, costumes, ball gowns and clothes. She can no longer make these items, as she can no longer sew by hand or on a machine. She can no longer embroider or crochet. She needs more help around the house and cannot tend to the garden. She used to tend to the garden without assistance and is upset that she can no longer do this. She uses a heat pack at night and takes Panadol if the pain is very severe. She also uses Voltaren and tiger balm. She cannot take strong medication because of her stomach complaints, for which she is taking Nexium. She uses her right arm for minor tasks but finds that at the end of the day she experiences a lot of right shoulder pain. She can manage relatively well if she does not put pressure on her right arm and if she avoids repetitive activities below shoulder height such as making the bed, cleaning, vacuuming and mopping. She was able to travel to Italy in late 2011 and her partner helped her carry most of the luggage.
[3]The affidavits were sworn on 23 May 2011 and 21 February 2012. See Plaintiff’s Court Book (PCB) 8-13e.
7 She had some counselling in late November 2010 for anxiety and other psychological symptoms relating to the transport accident but by February 2011 felt better and no longer has active psychological treatment.[4]
[4]At the hearing, counsel for the plaintiff indicated that little reliance was placed on the medico-legal reports of psychiatrist Dr Nathan Serry, who performed psychiatric impairment assessments on the plaintiff in July 2006 and November 2011 at the request of the plaintiff’s solicitors. For the sake of completeness, I note that on each occasion Dr Serry diagnosed “a post-traumatic anxiety syndrome with a partial PTSD” and assessed a whole person psychiatric impairment of 10%, of which half was “secondary and reactive to the physical injuries sustained in the subject accident and the associated pain and limitations”. See PCB 36-49.
8 The plaintiff tendered a number of photographs showing the gowns and costumes she had made over the years prior to the transport accident. The photographs included an intricate wedding dress inlaid with many pearls. The plaintiff said that she has an industrial sewing machine and can no longer thread it or push the fabric through it. She said that she was born with a gift for sewing and dressmaking and was very upset that, because of her right shoulder problem, she could not longer do these activities. She said she was much more nervous and stressed because she can no longer do these things. She said that her problems with her right shoulder meant that she could not use her right arm to wash her hair or to toilet properly as she used to prior to the transport accident with her right hand. She was embarrassed and distressed at this.
9 She agreed that she has had back problems since her twenties but that it is always the same and is not a big problem for her, particularly since she lost nearly 30 kgs. She said that the right shoulder problem in May 2004 went away after she saw the doctor. She said that her knees are no longer a problem and she goes dancing every week. However, she said that before the transport accident she used to dance a lot. Since the transport accident, because of her right shoulder problem, she can only dance slow dances, and only using her left arm. She said she feels bad about not being able to do the faster dances which involve moving both arms. She said that for the past two years her claudication problem has not caused her pain in the legs. She said that prior to the transport accident she was not on a disability support pension but that since she turned 60 she had been receiving the old age pension.
10 She said that prior to the transport accident, when she had gall bladder problems she had home help for a time, but that apart from that she was coping well and was able to manage the cooking and the housework. She said that she had help with window cleaning, but denied getting home help three to four hours per week. She said that the handwriting on her TAC claim form[5] was not hers, but her doctor’s, and that he must have misunderstood what she told him about home help. She agreed that she is still able to cook but needs help lifting pots. She uses her left hand or a food processor for chopping food. She agreed that she is still able to do some mending but said that she has not done any dressmaking or needlework since the transport accident.
[5]See PCB 77.
11 The plaintiff’s daughter, Ms Ivana Cookson, adopted her affidavit sworn 31 January 2012 in which she stated that prior to the transport accident the plaintiff worked for years sewing clothing and costumes and doing drapery. For a long time the plaintiff worked for Theatre Art Exports making costumes and drapery. She would clean her house and scrub tiles. After the transport accident, the plaintiff slowed down considerably, and has been unable to clean the house as she used to. She has needed assistance getting out heavy pots for cooking, or opening tightly closed jars. She also relies more on her daughters when needing to travel long distances by car.
12 I note that the affidavit of the plaintiff’s second daughter, Adriana Rosa[6], is in similar terms. Prior to the transport accident the plaintiff was very independent, house proud and able to do all the cooking and cleaning. She would drive herself everywhere and swim regularly. Since the transport accident, she has complained of neck and shoulder pain and often uses a heat pack. She is much more limited in what she can do around the house and needs help with gardening, cleaning and putting away heavy pots. She also requires her daughters to drive her any long distances.
[6]See PCBB 17-19
Radiology
13 Ultrasound of the right shoulder on 12 May 2004 was reported[7] as showing “a hypoechoic area approximately 11 mm in diameter and 15 mm posterior to the bicipital tendon. There is some swelling of the supraspinatus tendon at this point and appearances are consistent with some tendonitis with a possible intrasubstance tear”.
[7]See PCB 73.
14 Ultrasound of the right shoulder on 23 October 2009[8] was reported as follows:
There is a moderate effusion in the tendon sheath of the long head of biceps consistent with tenosynovitis but the tendon itself is intact and of normal echotexture.
There is some bony spurring and possibly even a small separate ossicle of bone from the greater tubersoity of the humerus.
There is a complete tear of the supraspinatus and retraction and an associated small effusion in the subacromial bursa.
[8]See PCB 74.
Causation
15 I consider that the weight of the evidence summarised below is to the effect that the transport accident was a cause of the plaintiff’s current right shoulder problem.
16 After the transport accident, the plaintiff was taken to the Northern Hospital by ambulance. The Hospital reported on 17 May 2006[9] that she presented with right shoulder and central chest pain “consistent with a seat belt injury”. X-ray of the right shoulder disclosed no abnormality. She was discharged the following day.
[9]See PCB 20.
17 The plaintiff’s treating doctor, Dr Mikhail, provided a number of reports to the plaintiff’s solicitors[10], which may be briefly summarised. He saw the plaintiff on 27 April 2005 with a complaint of right shoulder pain and prescribed Tramal. She presented with ongoing right shoulder pain in May 2005 and Dr Mikhail felt in July 2006 that she had sustained “a multiple soft tissue injury in the transport accident” involving the right shoulder joint and the right side of the neck and cervical spines. He recommended continued physiotherapy with possible referral to pain management if needed. In October 2008, the plaintiff resumed physiotherapy with Mr Stephen Harper after a break of some months.
[10]See PCB 22-32.
18 The plaintiff presented again in September 2009 with bilateral shoulder pain and tenderness and some other problems. She was referred to ultrasound guided right shoulder steroidal injections in early November 2009 and July 2010. In September 2010 Dr Mikhail recommended continued physiotherapy and conservative treatment with analgesia and anti-inflammatory medications as required.
19 At the hearing, Dr Mikhail said that the plaintiff continues to have pain and tenderness in her right shoulder and that he has referred her to an orthopaedic surgeon to see if anything can be done for her future management. He disagreed with Mr Dooley’s opinion that the plaintiff suffered aggravations of rotator cuff degeneration in both May 2004 and April 2005. Dr Mikhail said that if there had been any aggravation in May 2004 there would have been complaints of right shoulder pain but there were only two attendances by the plaintiff in May 2004 and no further complaint about the right shoulder until after the transport accident. In any event, he said that degenerative changes could have a fluctuating course and not produce restrictions all the time. He said that the ultrasound report in May 2004 pointed merely to the possibility of a tear of some fibres, with the tendon remaining in place, but that the ultrasound after the transport accident was “very confident” that there was a partial thickness tear of the tendon. He agreed that during periods when the plaintiff was suffering problems with claudication in the legs she would have experienced some limitation in her physical activities.
20 He agreed that between May 2005 and October 2009 there were many attendances by the plaintiff but no complaints of right shoulder pain but said that during this period she was having physiotherapy. He agreed that since April 2011 there have been 18 visits and only 2 references in the clinical notes to the right shoulder, but said that her other medical conditions, including cardiac and peripheral vascular disease[11], would have preoccupied her. He agreed that her lumbar spine condition may inhibit her gardening activities but said that overall the plaintiff was very active. He said that her peripheral vascular disease and coronary artery disease were currently very well controlled and were not restricting her activities. He said that the ultrasound findings of June 2011 confirmed a tear in the rotator cuff and accounted for the ongoing pain in the right shoulder and the reduced mobility of the right arm. He said that in February this year she complained of worsened right shoulder pain and tenderness and he has referred her for further ultrasound.
[11]I note that the plaintiff was assessed by a respiratory physician, Dr Jonathan Burdon, in July 2006 in relation to the chest pain suffered as a result of the transport accident. Dr Burdon noted that she suffered a right shoulder injury in the accident but reported that there was no lasting chest injury.
21 Mr Harper treated the plaintiff in 2008 for her right shoulder pain and, later in 2008, for increased left shoulder pain which the plaintiff felt was due to excessive use of the left shoulder to compensate for the right shoulder. He reported[12] that the plaintiff complained that many daily activities were either severely limited or not possible due to right shoulder pain. These included activities that required a full range of shoulder movement, repetitive activities below shoulder height or activities that required raising the right arm over shoulder height or reaching behind her back. He noted that muscle strengths were reduced. He felt that she would continue to experience the restrictions he outlined in his report.
[12]See PCB 64.
22 Mr Sam Niazi, physiotherapist, treated the plaintiff between June and December 2009. He reported[13] that as a result of physiotherapy she had shown moderate but fluctuating gains in the range of movement of the neck and related symptom intensity. He recommended self-management and regular exercise.
[13]See PCB 66.
23 Mr King assessed the plaintiff in November 2006 and October 2011 at the request of the plaintiff’s solicitors[14]. In his first report he noted that she had a “classical chronic rotator cuff lesion of moderate severity with painful limitation of all glenohumeral and combined movement of the right shoulder joint”. On examination he noted that all movements of the shoulder were limited by pain and were subject to restrictions.
[14]See PCB 50-58.
24 On the basis of the history given Mr King opined that in the transport accident the plaintiff suffered a “significant jolting jerking degree of trauma resulting in an injury to the rotator cuff of tendons and ligaments surrounding the right shoulder and also resulting in some damage to cervical discs and associated ligamentous structures- presumably superimposed upon mild pre-existing but symptomless degenerative changes consistent with her age”. He assessed a 25% permanent impairment of the function of the right upper limb. He noted that there was no evidence of any sort of functional overlay present in the plaintiff.
25 On 27 March 2008 Mr King noted that he had received documentation which alerted him to the attendances with Dr Mikhail from 2000 to April 2005 and had not seen any mention of an injury to the neck or right upper limb. In his report of 18 October 2011, Mr King noted the reference in the solicitor’s letter of request to him to an injury to the right shoulder in May 2004. He noted that when he raised this with the plaintiff she did not recall an injury to the right shoulder at that time but did recall an incident in which her dancing partner was injured. He noted a complaint of persistent constant aching and pain in the right shoulder which was aggravated by use of the right arm. She reported difficulty doing up her bra. Otherwise, her restrictions remained as previously reported. He noted that his examination findings were unchanged since the previous assessment, with all movements limited by some pain and spasm. He repeated his earlier opinion that the transport accident was a cause of her right shoulder problem. He assessed a 15% permanent impairment of the right upper limb arising from the right shoulder.
26 Mr Robert Carey saw the plaintiff for medico-legal purposes at the request of the defendant on 5 October 2007 and reported[15] that the plaintiff’s right shoulder symptoms were the “residual effects of the injuries sustained in the motor vehicle accident”. The injuries were described as an injury to the rotator cuff with probable tear, as well as soft tissue tenderness. He felt that her neck symptoms were related to the shoulder injury. He assessed an 8% whole person impairment of the right shoulder and noted that her home activities remained restricted. Prior to the accident she managed her own garden and mowed the lawn but now required help with heavy house duties. She also enjoyed regular swimming and exercising at a leisure centre but did not do that anymore. She still enjoyed dancing albeit in a more restricted manner. He did not refer to any ultrasound examination.
[15]See PCB 93A.
27 In a supplementary report dated 26 February 2008[16], Mr Carey noted the general practitioner’s records which suggested that the plaintiff was seen for an injury to the right shoulder on 11 May 2004 with reported ongoing symptoms on 18 May 2004 but there was no further reference to any right shoulder symptoms until the transport accident on 26 April 2005. Mr Carey stated that it was reasonable to conclude that the plaintiff recovered from the injury sustained in early 2004.
[16]See PCB 93B.
28 Mr Michael Dooley saw the plaintiff for medico-legal purposes at the request of the defendant. He reported on 12 October 2011[17] that the transport accident of 2005 had resulted in an aggravation of degenerative rotator cuff disease which was likely to cause ongoing difficulty with heavy lifting and a lot of activity at and above shoulder height as well as ongoing intermittent right shoulder girdle pain and some nocturnal pain. However, he felt that the limitations described by the plaintiff were out of proportion to the degenerative disease and any aggravations of it. He felt that the radiology findings in 2004 and 2009 were consistent with the “natural evolution of degenerative rotator cuff disease” and that the transport accident did not cause any of the radiological changes.
[17]See DCB 38.
29 I am satisfied that the transport accident was a cause of the injury to the plaintiff’s right shoulder, even though that injury has been characterised in slightly different terms by the various treating and medico-legal doctors.
Pain and suffering
Legal principles
30 In determining an application under s 93(17)(a) of the Act, the Court must be satisfied, relevantly, that the consequences of the long-term impairment of the particular body function, in terms of pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described at least as “very considerable” and certainly more than “significant” or “marked”.[18]
[18]Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis & Ors [1998] 3 VR 833.
31 Ordinarily, the endurance of permanent daily pain requiring frequent medication “must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.[19]
[19]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, [199].
32 Apart from the capacity for work, assessing the extent to which pain interferes with the ordinary activities of life will generally involve consideration of its effect on the plaintiff's sleep, mobility, capacity for self-care, performance of household and family duties, recreational activities, social activities, sexual activities and enjoyment of life.[20]
[20]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [16]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52.
33 Some weight must be given, in considering that the pain and suffering consequences of the plaintiff's impairment are at least very considerable, to the adverb “very”.[21] Each case has to be determined in the light of its own facts.[22]
[21]TAC v Dennis [1998] 1 VR 702, 703.
[22]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
34 Overall the court must consider what the plaintiff has lost by virtue of the injury and what has been retained. The significance of what a plaintiff has lost, which bears upon the seriousness of consequences, may be informed to an extent by what is retained.[23]
[23]Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260, [27]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [95].
35 It is also relevant to take into account that the plaintiff is 68 years old and that she will experience the pain and suffering consequences for a shorter period of time than others with a similar impairment.[24]
[24]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [44].
Evidence
36 I have referred to the plaintiff’s evidence concerning her restrictions in paragraphs 6-10 above.
37 I note that all the treating doctors and examining specialists agreed that her right shoulder symptoms including pain and restriction of certain activities, were likely to persist. Dr Mikhail noted the ongoing pain and the reduced mobility of the right arm. Mr Harper noted that she would continue to experience severe limitation or inability to perform activities requiring a full range of shoulder movement or repetitive activities below shoulder height, or activities that required raising the arm over shoulder height or reaching behind her back. Mr King assessed a permanent impairment of the function of the right shoulder with likely continued pain and restriction. Mr Carey noted that due to her right shoulder impairment the plaintiff could no longer manage her garden or mow the lawn, and now required help with heavy house duties. She could no longer swim regularly or exercise at a leisure centre. She still went dancing but in a more restricted manner. Mr Dooley predicted that the right shoulder problem was likely to cause ongoing “intermittent right shoulder girdle pain and some nocturnal pain”, as well as ongoing difficulty with heavy lifting and activity above shoulder height.
Findings and reasons
38 I found the plaintiff to be a spirited and straightforward witness. She was extremely well-versed in the history of treatment she has had for her various unrelated medical conditions and I accept her evidence as to the specific consequences flowing from the transport accident in relation to the use of her right shoulder and arm. I accept her evidence as to the pain and restrictions she suffers, in relation to the medication she takes, and in relation to what she has lost as a result of the transport accident.
39 I am satisfied that in spite of her considerable unrelated medical problems, prior to the transport accident the plaintiff had unrestricted use of her dominant right arm and was able to look after her own personal care needs, her activities of daily living, the cooking, the gardening (including mowing the lawn) and her own domestic cleaning (including the heavy cleaning). She loved sewing and making formal gowns, clothes and costumes with her industrial sewing machine, as well as knitting, crocheting and other fine sewing activities. She was able to dance without restriction in the use of her arms.
40 As a result of the transport accident, the plaintiff will suffer ongoing pain in the right shoulder and restriction in the use of her dominant right arm. Her pain is aggravated by activity using the right arm, and at night she feels a lot of right shoulder pain. She takes Voltaren and Panadol when the pain is bad but is unable to take stronger medication because of her stomach complaints. Importantly, she is unable to toilet using her dominant right hand, and has difficulty washing her hair. She is unable to mow the lawn or to manage her garden, which was previously a source of pride to her. She is unable to use what she described as her “gift” as a seamstress, to make formal gowns and clothes and costumes for family and friends, which she did regularly. Apart from doing minor repairs such as mending, she is unable to do sewing or knitting or embroidery at all and is now anxious because she can no longer use those activities as a source of relaxation. She is permanently restricted in performing any activities with her dominant right arm as outlined above at paragraphs 6-10. She can no longer make the beds, do the cleaning or mopping.
41 In all the circumstances, I consider that the pain and suffering consequences of the plaintiff’s right shoulder impairment are more than considerable when compared with other cases in the range of long term impairments of the body function of the right shoulder.
Conclusion
42 Leave is granted to the plaintiff to issue proceedings for the recovery of damages in respect of the injury to the right shoulder sustained as a result of the transport accident on 27 April 2005. I reserve the question of costs.
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