Rowe v Transport Accident Commission
[2022] VCC 743
•31 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-01295
| TROY ROWE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 and 25 March 2022 | |
DATE OF JUDGMENT: | 31 May 2022 | |
CASE MAY BE CITED AS: | Rowe v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 743 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application under the Transport Accident Act 1986 – whether the plaintiff suffered a “serious injury” in relation to a transport accident on 18 March 2018 – reliance on paragraphs (a) and (c) of the definition of “serious injury” – whether any consequences are organic or psychologically caused – reliance on “pain and suffering” consequences and pecuniary disadvantage “consequences”
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Richards & Anor v Wylie (2000) 1 VR 79; Mobilio v Balliotis & Ors [1998] 3 VR 833; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Hunter v Transport Accident Commission [2005] VSCA 1; Meadows v Lichmore [2013] VSCA 201; Petkovski v Galletti [1994] 1 VR 436; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
Judgment: Pursuant to s93(6) of the Transport Accident Act 1986, leave granted to the plaintiff to bring common law proceedings in respect of a left shoulder injury suffered by him arising out of a transport accident occurring on 18 March 2018.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C J Winneke QC with Ms K M Manning | Henry Carus & Associates |
| For the Defendant | Mr J Ruskin QC with Mr S Pinkstone | Solicitors for the Transport Accident Commission |
HIS HONOUR:
1By way of Originating Motion, Troy Rowe (“the plaintiff”) seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (as amended) (“the Act”) to bring common law proceedings to recover damages for an organic injury to the left arm and, in particular, the left shoulder (“the organic injury”), and for a psychiatric injury (“the psychiatric injury”) suffered by him arising out of a transport accident which occurred on 18 March 2018 (“the transport accident”).
2The plaintiff was the only witness to give evidence and be cross-examined. The plaintiff prepared a Joint Court Book which was ultimately marked as exhibit A, and it was agreed between the parties that to that exhibit would be added a photograph taken on 14 May 2017, together with a printout of the metadata confirming the date that the photograph was taken.
The relevant legal principles
3The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.[1]
[1]See s93(6) of the Act
4By way of his Originating Motion, the plaintiff sought to rely on paragraphs (a) and (c) of the definition of “serious injury” contained in s93(17) of the Act which read:
“‘serious injury’ means—
(a)serious long-term impairment or loss of a body function; or
(b) …
(c) severe long-term mental or severe long-term behavioural disturbance or disorder; or
(d) … .”
(My emphasis.)
5At the commencement of the proceeding, Senior Counsel for the plaintiff sought to withdraw reliance on paragraph (c) of the definition of “serious injury”, but later resiled from that position but maintained the thrust of the case was under paragraph (a) of the definition of “serious injury”.
6In order to succeed, the plaintiff must prove, on the balance of probabilities:
(a) that “the injury”, were that be the organic injury or the psychiatric injury suffered by him, was a result of the transport accident;
(b) the requirements of the test set out in the seminal decision of Humphries and Anor v Poljak,[2] wherein a majority of the then Full Court of Victoria stated:
“Subsection (17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under para (a) and the latter under para (c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para (a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of para (c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs (4)(d) when reliance is placed upon subs (17)(a)[3] may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long-term. We think ‘long-term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be 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’? … .”[4]
[2][1992] 2 VR 129
[3]The Court at this stage was referring to paragraph (a), i.e. an organic injury
[4]See Humphries and Anor v Poljak (op cit) at paragraphs [40]-[41]
(c) “serious injury”, as defined in paragraph (a), can have its seriousness measured, in part, by a mental response to a physical impairment – however, the mental disorder cannot, itself, constitute or be the producer of, the impairment of a body function.[5]
[5]See Richards & Anor v Wylie (2001) 1 VR 79
7“Serious injury”, as defined in paragraph (c) requires the mental or behavioural disturbance or disorder to be “severe” rather than “serious” (as required in sub‑paragraph (a) of an organic injury said to be “serious”). In Mobilio v Balliotis,[6] the then Full Court found the word “severe” to be a higher standard to reach than “serious”. Brooking J stated:
“… Without suggesting the use of any particular adjective to mark the distinction, I would say that ‘severe’ is used in the definition as a stronger word than ‘serious’ … .”[7]
[6][1998] 3 VR 833
[7]See Mobilio (op cit) at page 846; see also Papamanos v Commonwealth Bank of Australia [2014] VSCA 167
8The Court must give reasons disclosing the pathway of reasoning in dealing with the evidence and the issues raised by the application.[8]
[8]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23]-[36]
The Opening by Senior Counsel for the Plaintiff
9In his opening, Senior Counsel for the plaintiff, informed the Court that as a result of the transport accident, the plaintiff had suffered “very … significant damage”[9] to the labrum of his left shoulder, giving rise to tears in two places – a SLAP tear and a posterior tear which resulted in the plaintiff undergoing “fairly complicated” surgery to repair such tears.
[9]Transcript (“T”) 9, Line/s (“L”) 3
10Senior Counsel for the plaintiff also opened his case by stating that the plaintiff had suffered pain symptoms constantly since the transport accident and, notwithstanding the surgery, he has been prevented, and continues to be prevented, from forceful use of his left shoulder.
11Senior Counsel pointed out that the plaintiff is a relatively-young man who, prior to the transport accident, was extremely fit and active and had a passion for outdoor sports and recreation. These activities were very much of a “physical nature”, involving hiking, swimming, paddling canoes, playing tennis and regularly playing golf , and attending a gymnasium. Such activities have been brought to an end or significantly diminished.
12Furthermore, Senior Counsel stated that these sorts of activities were “central to [the plaintiff’s] life”[10] and not only amounted to his recreation, but also to his social life – rather than him going out to the theatre or to the pub or restaurants, his life was this sort of outdoor pursuit. Reference was made to various photos in the Court Book, which, on casual observation, would suggest a very fit and well-muscled young man. Furthermore, there had been some financial disadvantage in a generalised way when he was off work.
[10]T10, L22
The issues
13When queried what were the issues in this matter, Senior Counsel for the defendant briefly detailed the following matters:
(a) The nature of the condition which the plaintiff is suffering, whether it be an organic condition or a psychological condition which is driving the alleged consequences.. In this respect, counsel referred to the medico-legal reports of the orthopaedic surgeon, Mr Gary Speck,[11] which suggested that there was what he referred to as a “real injury”[12] which required surgery and which had been successful. Mr Speck noted that there was very little to be found on the MRI scans and there was complete movement of the left arm.
In this sense, can the Court, so it was posed, be satisfied on the balance of probabilities that there is something organic which is driving the consequences relied on by the plaintiff.
Senior Counsel for the defendant also noted that Mr Speck considered the plaintiff was now suffering a “chronic pain syndrome” which was, so it was submitted, suggestive of psychological mechanisms giving rise to the cause of any consequences.
Furthermore, when the Court queried Senior Counsel for the defendant as to whether or not his client accepted that, one way or another, the plaintiff was suffering pain in his left shoulder, the Court was informed that there will be some issues of credit in relation to that issue. Furthermore, the Court was informed that a short amount of video film will be shown, which has been seen by all the parties, which Senior Counsel for the defendant, although accepting that it was not “fabulous”,[13] submitted that it did “paint a picture”.[14]
[11]See reports of Mr Speck, dated 17 September 2021, and a supplementary report, dated 7 March 2002, found at pages 143-167 Joint Court Book (“JCB”) which suggested that there was, what was referred to as a “real injury”
[12]T12, L22
[13]T15, L31
[14]T16, L2
The evidence of the Plaintiff
14The plaintiff relies on three affidavits, the first one sworn on 21 December 2020;[15] the second one sworn on 8 July 2021;[16] and the third affidavit sworn on 22 March 2022.[17] The plaintiff gave evidence that the content of each of these affidavits were “true and correct” subject to some minor changes which I now set out:
[15]See affidavit of the plaintiff sworn on 21 December 2020 at pages 10-30 JCB
[16]See affidavit of the plaintiff sworn on 8 July 2021 at pages 31-32 JCB
[17]See affidavit of the plaintiff sworn on 22 March 2022 at pages 33-35 JCB
(a) In his first affidavit, the plaintiff was referred to paragraph 32, wherein the plaintiff deposes about playing golf weekly. When queried as to whether he wanted to make any changes, the following evidence was given:
Q: “…
A:Yes, so I’d like to correct it and say that I played weekly on some occasions but I would say on average it was more like monthly post coming back from overseas.”
HIS HONOUR:
Q: “Do you belong to a club?---
A:Yeah - I mean, before travelling, yes. After travelling, no. I used to play - I was a member of the Heritage Golf and Country Club, so I could play there whenever I liked, because that was through my father’s company, and then I was intending on becoming a member at Mandalay where I live now, however, that never eventuated.
Q: Do you have a - or did you have a handicap?---
A: I did.
Q: What was that?---
A: Eleven.”[18]
[18]T21, L1-13
(b) Also, in paragraph 22 of the first affidavit, the plaintiff stated that he and his wife were both members of the “Hawthorn Tri Club”. In particular, the following evidence was given:
Q: “…
A:Yeah, so I said in my affidavit that I was a member of the Hawthorn Tri Club along with my fiancé[e]. I actually, upon reflection, I was not a member, however, I did train with them, because my fiancé was a member.”
HIS HONOUR:
Q:“And your fiancé[e] is also a triathlete, is she, obviously?---
A:She is, she’s - she’s an iron woman, actually.
Q:She’s a what? An iron woman?---
A:Yeah, so the ultra triathletes, yeah.”[19]
[19]T21, L18-27
(c) In relation to his second affidavit, the plaintiff referred to paragraph 19, where, in part, he stated, he “switched to online share trading” following his realisation he was not able to return to physical work in his business after the transport accident. In particular, the following evidence was given:
Q: “… What you say is, it wasn’t share trading, that’s incorrect, it was trading in commodities and machinery; is that right?---
A: Physical commodities and equipment.
HIS HONOUR:
Q: What sort of commodities?---
A:So, predominantly scrap metal, but also plastics. So, my background is scrap metal.”[20]
[20]TL22, L15-21
(d) In relation to his third affidavit, the plaintiff referred to paragraph 13 in that affidavit, wherein he made comments on the medico-legal reports of Dr Joseph Slesenger, dated 13 October 2021.[21] I refer to the evidence on this particular issue:
Q:“Now, the more recent one, 22 March 2022, at paragraph 13 - and this is the affidavit where you make comments on the report of Dr Slesenger - and in that paragraph you say that, ‘Dr Slesenger made a number of comments that surprise me and do not seem to be very consistent. He agrees that I favour using the right arm most of the time and he lists my pain levels as 3 to 9 out of 10. I’d like to clarify that point, my pain is constant 3 out of 10 and if I overload my shoulder by exerting myself with a heavy physical task then it increases to 9 out of 10’. Do you want to add to that?---
A:Yeah. So, I’d like to make the point that the pain often comes after as well so - and it can last for days, and I gave the example to my solicitors - I’m not sure what to call them - this morning that I did some things that perhaps I shouldn’t have done on the weekend and - - -“
HIS HONOUR:
Q:“Just give me an example; what did you do on the weekend?---
A:I needed to clear some items of property that we purchased and, anyway, I knew I probably shouldn’t do it, I did it anyway, um, and four days later I’m still enjoying the reminder of that, so ... .”[22]
[21]See report of Dr Joseph Slesenger, dated 13 October 2021 and a supplementary report from him, dated 10 March 2022 at pages 168-188 JCB
[22]T23, L4-24
15Following on from that, the plaintiff also gave evidence about an episode he described to one of the doctors he has attended – Dr Sullivan.[23] In particular, the following evidence was given:
[23]See medico-legal report of Dr Richard Sullivan, dated 15 February 2022, at pages 111-116 JCB
Q:“… You told a doctor, Dr Sullivan, about lifting your child into the air which caused you pain. Can you amplify that or explain what happened and what you meant by lifting him into the air?---
A:Yeah, so I meant lifting my son up (witness demonstrates) in the air and playing with him essentially; it’s - - -”
HIS HONOUR:
Q:“Tell me this so I understand it: is the distinction you’re making when someone talks about picking up a child, that’s usually picking them up and nursing them, or a baby - - -?---
A:Correct.
Q:- - - are you talking about picking up and, what, raising your arms or?---
A:Yeah, you know, you play with your child, you pick them up and throw them in the air, yes, that’s what I’m referring to (witness demonstrates).”
MR WINNEKE:
Q:“That’s what you meant when you’re explaining that, is it, to Dr Sullivan, lifting him up in the air and you’ve showed in the witness box lifting your arms up above your shoulder?---
A:Yes.
Q:And is that what caused you the pain, the aggravation, is that what you meant?---
A:Yes.”[24]
[24]T23, L25 ꟷ T24, L14
16The plaintiff was also queried by his counsel in respect to his medical management treatment and medications and, in particular, the following evidence was given:
Q:“…
A:At the moment I am not engaging in a lot of treatment. I’m suffering a lack of motivation in some senses, to be frank, but also my fiancé[e] recently asked me to refrain where possible from going out.”
HIS HONOUR:
Q:“Something that’s not overly critical to the case at all, but your wife or your fiancé is described as a medical doctor, at another time as a something-nurse. Is she medically qualified?---
A:She’s a nurse practitioner. It’s not a common - so, she’s from the US, it’s not a common qualification here in Australia. It’s essentially between a doctor and a nurse, so she can prescribe and she can diagnose, like, you know, coughs, colds, things of that nature.
Q:I see, thank you. Sorry, no, I did interrupt you, just tell me more about anything you are taking or have taken or what?---
A:Yeah, so, I’m taking Meloxicam, I’m taking an anti-inflammatory daily, along with - it’s an osteo paracetamol that was recommended by the pain, um - - -
Q:Perhaps firstly, just say the last week and then I’ll expand on that. But the last week, give me an idea of what you’ve taken and the frequency of what it is?---
A:Yeah, so every morning I take Meloxicam and paracetamol, just as a routine, and then I’ll take Nurofen and paracetamol during the day as I - as necessary, essentially.
Q:And the Meloxicam, can you buy that, is that over-the-counter or is that?---
A:Meloxicam, no, it’s prescribed.
Q:And who prescribes that?---
A:My - well, it was the pain specialist and now my GP. And how long has that medication been going on for?---Um, I believe I saw the pain specialist in November. I’m testing my memory here a bit, it’s in that order of time.”[25]
[25]T24, L17 ꟷ T25, L20
17The plaintiff also gave evidence that, to the extent he was working from home, a significant reason why that has been occurring is to avoid the risk of contracting COVID and passing it onto his young child.[26] One consequence of this is, rather than attending outside physiotherapy and in-person treatment, his wife advised him to do his exercises at home which, in turn, brought to an end any massage and physiotherapy he was receiving from health professionals.
[26]T25, L22 ꟷ T26, L7
18Prior to his cross-examination, the Court, seeking to clarify some issues, posed various questions. I refer to the following evidence:
HIS HONOUR:
Q:“Just before you sit down a couple of things I’d like to ask you. The pain which you say you have been experiencing, that’s been a constant pain since the advent of the transport accident?---
A:Yeah, it has.
Q:With the SLAP surgery which you underwent in, I think, 2019 if I recall?---
A:Yes, March 2019.
Q:What impact, if any, did that make in relation to your pain?---
A:Well, post-surgery it was significantly higher, but - - -
Q:Well, yes, allowing for that, yeah?---
A:Allowing for that, it definitely got better, but what we found is, as we tried to strengthen the shoulder it would essentially, I’d break down, as in, the pain would become too much and it was just like it was a loading, like pain on top of pain as I kept trying to strengthen the shoulder and build that strength back up, and it was to the point where I then - I’d just, so I’d have to stop and, I mean, I even got advice from the physio at some time, ‘Probably just take a break, just give it some time to calm down’ and then we’d go again. And so, we went through these, call them, like, waves of, let’s push, just get the strength back, because I had the range of motion far before I think even is normal post-surgery, that’s what I was told, and so, there was a real positivity from the beginning that - and I was doing exercises through Kieser and, yeah, it was, things were really improving we thought at a rate of knots, and the strength was getting better and I just, I kept breaking down as I’d try and push to get that strength back, and that’s been the cycle that I keep finding myself in.
Q:Just going back to the beginning of your answer, you said ‘after the SLAP surgery it was better’. Are you saying your mobility was better or the pain was better and, if so, do you mean better gone or better improved?---
A:Sorry?
Q:You used the word after the SLAP surgery there, I think you were referring to your pain, was better. Now, firstly, do you use the word ‘better’, that had no pain or just improved your pain?---
A:No, it was improved. So, I was given advice by the physio, ‘You can deal with this without surgery’, and I just kept sort of getting encouraged to avoid the surgery, and so, the pain was pretty severe and that was what ultimately - I just said, ‘I can’t do this any more’.”[27]
[27]T26, L20 ꟷ T28, L1
19By way of his first affidavit, the plaintiff gave the following salient evidence:
· At the time of his first affidavit, the plaintiff was thirty-four years old, lived with his fiancée, Ginger, and had one infant son, Alex, who was born in early December 2020.
· He describes that, on the evening of 18 March 2018, he was riding his “scooter” east along Flinders Lane, with Ginger on the back of the scooter, when a car suddenly pulled out of the carpark driveway without giving way, and struck them on the side, knocking both of them off the scooter.
· The plaintiff describes that when he came off the scooter, he put out his left arm forward to protect himself, and ended up landing on his left shoulder – causing a significant dislocation – and back. He went to the Emergency Department at the Epworth Hospital for scans that evening. X-rays taken at the hospital did not reveal any fractures and he was discharged home with a recommendation to take painkillers and see a physiotherapist. The next morning, the pain in his left shoulder was “excruciating”, so he attended his general practitioner Dr Agbarakwe, at the Arrowhead Medical Centre, who referred him for an MRI scan, which was undertaken the following day.
· He commenced to attend the physiotherapist, Ms Janet Main, at Kinematics Physiotherapy on 19 March 2018, and saw her regularly between that date and November 2018, but did not enjoy any improvement in his shoulder pain.
· He also attended a strength program at Keiser, a strengthening and conditioning facility specialising in injuries and, again, that program did not help him with his pain.
· Due to lack of improvement in his left shoulder, he underwent a left shoulder arthroscopic posterior labral repair and SLAP repair on 18 March 2018. Such surgery was performed by Associate Professor Eugene Ek.
· Twelve months after the operation, he had a full range of movement in his left shoulder, but still had significant pain and required regular painkillers.
· Throughout 2019, he continued to attend for rehabilitation for his shoulder by doing exercises. He notes that although he had good movement in the left shoulder, he continued to have some “significant pain and an ache deep in the left shoulder”.[28]
[28]See first affidavit of the plaintiff, paragraph [9] at page 11 JCB
· He has pain in his left shoulder while at rest and experiences sharp shooting pain when he uses the left shoulder for forceful activity. He used to take medication for the ache, but it caused stomach ulcers, and at the time of the first affidavit was only taken Nurofen, and really trying to avoid pain medication wherever possible.
· He comments that he has seen many people to try and fix his shoulder, including a specialist sports doctor, Paul Blackburn; physiotherapy with Alison Law at Melbourne Shoulder Group and osteopathy at Sports Med Osteo and Port Melbourne Osteo. He notes that none of these treatments were successful.
· In April 2020, he moved from Port Melbourne to his present residence in Beveridge and obtained a new general practitioner at Medic in Wallen. He notes that he rarely attends his general practitioner because his shoulder is managed by physiotherapy and over-the-counter medication. In particular, at the time of the first affidavit, he was seeing Mr Nav Ahmad-Khan, a senior physiotherapist at Searing Health Sports & Wellness every week – although COVID-19 has meant he has not been able to get continuity with the physiotherapist or with his gym work.
· As at the date of his first affidavit, he was only taking pain medication when it became unbearable due to having had stomach ulcers in the past when using these medications. Sometimes he takes two to four Nurofen a day.
· He holds a Bachelor of Commerce and has worked in the recycling industry in various management roles since 2007.
· In October 2016, he started his own business recycling single-use batteries and turning them into fertiliser. The business is called ReSource and is located at a factory in Sunshine, such factory is between 800 and 1000 square metres and is full of heavy industrial machinery, and some of the machinery weighs as much as multiple cars.
· At the time of the transport accident, he describes it was essentially just him and a part-time worker assisting him. He was researching and experimenting with different methods and was not making a profit or paying himself a wage. He had a long-term view of the business and was prepared to go a few years without an income with Ginger supporting the family financially.
· The heavy machinery in the factory required daily maintenance, which he had performed prior to the transport accident – for example – there was one machine where the 20-kilogram by 20-kilogram blade had to be changed every day and this can take a couple of hours.
· After the transport accident he was unable to do the hands-on maintenance work and the Transport Accident Commission paid for an employer to assist him, but he also had to pay specialist contractors to do a lot of the maintenance work that he had performed prior to the transport accident. He notes that these services could cost as much as $150 per hour and the business ran at a loss.
· He has been unable to return to the physical work of the business since the transport accident. On realising that his left shoulder was not getting better, he switched to online training in commodities and machinery, which he describes himself as being “relatively successful at”.[29]
[29]See first affidavit of the plaintiff at paragraph [19] at page 12 JCB
· He continued to operate the business “ReSource” using paid labour and has now been able to get the business to the point where it breaks even, despite his inability to work in it. In this respect, he notes that he is disappointed that he is unable to work in the business himself, as that is what he planned to do. Furthermore, it also meant that the business was unable to advance in the way as planned during a period of significant opportunity in the recycling industry in Australia.
· Prior to the transport accident, he was an “extremely active person”. He and his fiancée were very athletic people and loved being outdoors doing any form of activity, and especially going out hiking and going to the gym together.[30]
· In particular, he describes that they would go hiking together, he would attend the gym multiple days per week, he played golf monthly, played tennis and kicked a football with friends regularly, and also used to do triathlons with his fiancée, and he trained at the Hawthorn Tri Club.
· He describes that his “socialising” was around sport rather than around the pub.
· He has been unable to return to any of these activities since the transport accident. In particular, he asserts that the pain in his left shoulder prevents him from hiking, swimming, running, riding, playing golf and playing tennis. He accepts that he can kick a football, but cannot run, as the jolting of running causes him a lot of discomfort. He has tried a bit of running but finds himself in pain for the remainder of the day.
· Prior to the transport accident, sport and exercise was “central to [his] life and [his] enjoyment of it. It was more important to [him] than work”.[31]
· The plaintiff asserts that being unable to participate in the activities he used to feels like he has had his life taken away and he is desperate to get back to those things, which is why he has persevered with treatment for so long, despite seeing no real improvement.
· Prior to the transport accident, during most of his adult life he weighed 80 kilograms and maintained 8 to 10 per cent body fat. Now he weighs around 76 kilograms and maintains around 20 per cent body fat, which is a significant loss of muscle mass and increase in fat.[32]
· Since the transport accident, he occasionally has had dreams about vehicle accidents and sometimes wakes up screaming, and his partner has to settle him down.
· He is frustrated by the restrictions on his life and his inability to participate in sport and exercise. He often feels fat and he is no longer able to get the mental energy and strength from sport that he used to.
· Although having his son has given him “a real lift”, he is very worried he will not be able to play sports with him when he is older. If such a circumstance were to occur, he would be devastated if that be case, because it is such a big part of who he is and he would like to share that with his son.
[30]Exhibited to paragraph [21] of his affidavit, is a series of thirteen photographs showing the plaintiff engaged in various pre-accident outdoor and adventure activities.
[31]See first affidavit, paragraph [24] at page 13 JCB
[32]The plaintiff exhibits two photographs taken on 21 December 2020, which demonstrates the changes in his body.
20I refer to the second affidavit of the plaintiff wherein he gave the following salient evidence:
· He continues to suffer the consequences referred to in his previous affidavit.[33]
· He continues to attend Soaring for physiotherapy sessions and the Melbourne Fitness & Performance for exercise physiology sessions. He notes that the Transport Accident Commission ceased funding those sessions in June 2021. He has continued to self-fund both types of activity.
· He finds that the physiotherapy physiology involves close monitoring of the shoulder movement during exercises, and he feels the tangible benefits from the supervision and support this offers. He currently attends this twice a week.
[33]That is, the first affidavit, sworn on 23 December 2020
21I refer to the third affidavit of the plaintiff wherein he gave the following salient evidence:
· He continues to suffer the physical consequences referred to in his previous affidavits.[34]
[34]That is, the first affidavit, sworn on 21 December 2020 and the second affidavit, sworn on 8 July 2021.
· He made this affidavit to provide an update on his more recent treatment and to comment on surveillance materials obtained by the defendant.
· He notes that he had to take a break from some of the active physiotherapy and exercise physiology sessions that he had been attending regularly. The plaintiff states that he made this decision following the birth of his son, who cannot yet be vaccinated against the COVID-19 virus because of his age. The plaintiff wanted to limit the chance of him being exposed and bringing any infection home to his son and his partner. He plans to return to attending self-funded physiotherapy and exercise physiology sessions once he thinks the risks to his son are lower. During this time, he has continued his home-based exercise program on a regular basis.
· The plaintiff then turns to comment on video footage and surveillance reports which were supplied by the Transport Accident Commission to his solicitors.[35] Although, ultimately a matter for the Court, I refer to the comments made by the plaintiff in his third affidavit:
“I believe the footage represents what I have reported to my own doctors, the independent medical examiners that have reviewed me and the restrictions I have detailed in my previous affidavits.
I see in the footage that I consistently favour using my right arm, instead of my left. When I am picking up my son, I use both arms because it would be dangerous and irresponsible not to do so, but then I carry him the majority of the time on my right side. I do occasionally carry him on my left when I need to use my right arm for something, but the fixed posture of holding the left shoulder up for a prolonged period to support a child, aggravates my shoulder pain.
I carry fairly light objects, like a water bottle, mobile phone or packed lunch with my left arm/hand sometimes. I demonstrate good range of motion in my left shoulder. This is all within the restrictions that I have reported to the doctors and mentioned in my previous affidavits.
I note the footage of me mowing the lawns and nature strips near my house. This is an activity that I do not do often because we hire a gardener. I can see that I carry the full catch with my right hand but then switch this to my left hand when it is empty. I do this subconsciously as I am mindful of trying to protect my left shoulder from being aggravated.
I read the supplementary reports of Mr Speck, Associate Professor Doherty and Dr Slesenger. I note that Mr Speck and Associate Professor Doherty both said the surveillance reports and footage did not cause them to change their opinion or that it was inconsistent with what I told them and how I presented on examination.
Dr Slesenger made a number of comments that surprised me and do not seem to be very consistent. He agrees that I favour using my right arm most of the time. He lists my pain level as a 3-9/10. I would like to clarify that point. My pain is a constant 3/10 and if I overload my shoulder by exerting myself with a heavy physical task then it increases to a 9/10. I have always said I could perform basic domestic tasks. I note he says he, ‘would not have anticipated Mr Rowe… lifting his child’ among other activities. Even with pain, lifting my child is not optional. Along with my wife, I am my son’s primary caregiver and I complete that role to be best of my ability even if at times it aggravates my left shoulder symptoms.”[36]
[35]Such video surveillance was shown to the Court during the course of the hearing.
[36]See plaintiff’s third affidavit at paragraphs [8]-[13] at page 34 JCB
22It is also convenient to note that the plaintiff also relies on an affidavit from his partner, Ginger Krentz, sworn on 12 January 2022. Much of the affidavit confirms the evidence of the plaintiff in relation to the circumstances of the transport accident, the injury sustained and treatment, the work that he was performing, both leading up to the transport accident and thereafter, and his recreational activities. I do refer to that part of her affidavit headed “Mental Health and Other Consequences”.
· Ms Krentz describes that, since the transport accident, the plaintiff has started suffering nightmares and sometimes he wakes up screaming and she has to calm him down.
· She has observed that the plaintiff regularly suffers from insomnia, and it is not uncommon for the plaintiff to be awake more than three hours in the early morning. According to Ms Krentz, this is caused by the pain in his shoulder, and it has “knock-on effects on his mental health, [their] relationship, and his work”.[37]
· Since the transport accident, she has frequently woken up to find the plaintiff laying on the ground next to a space heater because this, somehow, is more comfortable for his shoulder.
· From her observation, the plaintiff’s mood and personality has changed since the accident – whereas he was a highly-motivated individual prior to the transport accident, he is now often “flat and no longer appears to have the motivation and optimism he once possessed”.[38]
· Ms Krentz comments that the intimate relationship between her and the plaintiff has been “impacted significantly”. She notes that the plaintiff cannot hold her hand when they are in the car, because that position hurts his shoulder. Furthermore, the plaintiff cannot cuddle her if it means lying on his left side, and although they have managed to start a family, that was through the IVF, she comments that their sexual relationship is still deeply affected, and the plaintiff is in so much pain after engaging in sex that it is not worth him engaging in it now.
· Since the birth of their son, the plaintiff has been in slightly better spirits, but when he thinks of the future, he is “devastated at the prospect of not being able to engage in sports with [their] son due to his injuries”.[39]
· Ms Krentz notes that they had dreams of being able to go rock climbing, hiking and other outdoor activities, and is now realising “more and more” that this probably will not happen.
· She observes that the plaintiff struggles to hold/carry their son for extended periods of time, including using a baby carrier, because of the extra loading on his shoulder. He has observed the plaintiff cannot do all the things he hoped and expected to be able to do as a father, and this leaves her being responsible for more of the parenting/care duties than she would be if the plaintiff did not have his injury.
[37]See affidavit of Ms Ginger Krentz, sworn 12 June 2022, at paragraph [25], page 38 JCB
[38]See affidavit of Ms Ginger Krentz, sworn 12 June 2022, at paragraph [27], page 38 JCB
[39]See affidavit of Ms Ginger Krentz, sworn 12 June 2022, at paragraph [290], page 39 JCB
The medical treatment undergone by the Plaintiff
23Before referring to the various surgical and medical treatment undergone by the plaintiff, I do refer to the radiology available to the Court:
(a) On 19 March 2018, Dr Ann Mullins, at the Epworth Emergency Department, arranged for the plaintiff to undergo a plain x-ray of his left shoulder. Dr Michelle Thong, radiologist, reported the findings as:
“Minor vacuum phenomenon in the glenohumeral joint is of uncertain significance, unlikely to be significant. No acute fracture or malalignment.”;[40]
[40]See page 54 JCB
(b) On 20 March 2018, Dr Chigozie Agbarakwe arranged for the plaintiff to undergo an MRI scan of the left shoulder. The radiologist, Dr Entwisle, concluded as follows:
“… a small subcortical contusion at the anterior aspect of the humeral head may reflect an (sic) reverse Hill-Sachs lesion and indicate recent posterior subluxation/disclocation (sic).
A chronic undisplaced posteroinferior labral tear present at 10-7 o’clock. Periosteal bleeding/stripping at the posteroinferior aspect of the glenoid with a low grade partial tear of the adjacent joint capsule is consistent with an acute re-injury.
Minor glenohumeral chondropathy.
A small joint effusion with synovitis.
Prominent geographical areas of low grade oedema with a small amount of muscle fibre disruption in the musculature of the posterior aspect of the shoulder likely relate to contusion.
Intact rotator cuff.”[41]
[41]See pages 55-56 JCB
(c) On 11 September, the surgeon, Mr Andrew McQueen, arranged for the plaintiff to undergo an ultrasound of the left shoulder. The radiologist, Dr Clarence May, stated her impression to be:
“No significant or partial or full-thickness tear involving the rotator cuff. Essentially normal study. Subacromial/subdeltoid bursa measures .5mm in thickness.”[42]
[42]See page 57 JCB
(d) On 11 November 2019, Dr P Blackman, arranged for the plaintiff to undergo an MRI scan of his left shoulder. Such scan was reported to reveal:
“The acromioclavicular joint demonstrates minor hyperintense capsular thickening. No diastasis/malalignment or evidence of recent injury demonstrated.
The acromion is concave. The subacromial soft tissue interval measures 5.5mm at its narrowest. The minor high signal is evident in the region of the subacromial/subdeltoid bursa.
The rotator cuff demonstrates minor fraying in areas but there is no tendon tear and the muscle bellies are maintained.
The long head of biceps tendon is enlocated and appears relatively normal.
There are five suture anchor tunnels … present in the posterior half of the glenoid in keeping with a previous labral repair. These are located at 12, 10, 9, 8 and at 6 o’clock. No periprosthetic bone marrow oedema or fluid signal evident. The repaired posterior labral demonstrates irregular scarring, delamination and fraying but there is no residual or recurrent tear detected. Intermediate chondrolabral signal anterosuperiorly at 1-2 o’clock likely relates to a sublabral foramen. Rest of the anterior labrum is maintained.
Minor-mild **hip** joint chondropathy is present. The changes are most pronounced at the posterior margin of the glenoid at the site of the previous labral tear/repair and at the inferior margin of the humeral head. No associated subchondral oedema/cystic change. There is minor joint fluid. No significant capsular oedema.
No acute or chronic stress reaction or fracture demonstrated.”[43]
[43]See page 58 JCB
(e) On 1 August 2021, Professor M Haber arranged for the plaintiff to undergo an MRI scan of his left shoulder. At that time, a history was recorded that the plaintiff had a past history of a labral repair, presenting with ongoing symptoms for investigation. The radiologist, Associate Professor David Connell, concluded:
“1. Previous labral repair with no particular untoward features.
2. Fluid filled cleft/recess undermines the anterosuperior labrum.
3.There is a slight posterior decentring of the humeral head but the chondral surfaces are intact.
4. The rotator cuff is preserved.”[44]
[44]See page 59 JCB
24I refer to the Epworth Emergency Department record in relation to the plaintiff. Such record advises that the plaintiff attended the hospital on 18 March 2018 at 8.10pm, complaining that he had been riding a motor scooter when hit by a car travelling at low speed. As a result of the collision, the plaintiff fell sideways and landed on his left shoulder.
25Examination at that time revealed no deformity, with mild pain over the AC joint and generalised movement at the glenohumeral joint clinically enlocated.
26Test results suggested no bony injury and the plaintiff was discharged from the Epworth Hospital with analgesia and a recommendation he undergo physiotherapy.
27I also refer to reports from Mr Koki Oka, a physiotherapist, dated 23 May 2018,[45] 28 May 2018,[46] 22 November 2018,[47] 23 April 2019[48] and 9 November 2019.[49]
[45]See page 65 JCB
[46]See page 66 JCB
[47]See page 67 JCB
[48]See page 68 JCB
[49]See page 69 JCB
28In his report, dated 23 May 2018, Mr Oka notes that the plaintiff presented with left shoulder pain and although his shoulder range of movement was almost full range, any exertion with the shoulder still caused him discomfort. He also noted there was a significant strength deficit in the shoulders between symptomatic and asymptomatic, and when compared to normative values.
29In his second report, dated 28 May 2018, Mr Oka reports that the range of movement had improved, and the plaintiff had reached the point in his rehabilitation so that it was appropriate for him to commence an independent exercise program at a gym to increase the strength of his shoulder.
30By way of his third report, dated 22 December 2018, Mr Oka notes that the plaintiff had been “very diligent” with his rehabilitation process, and making progress, although at a slow pace. He also notes that he had seen a surgeon – Associate Professor Ek – who had suggested he undergo a left arthroscopic SLAP repair for his shoulder. At that time, he continued to work on his rehabilitation of the shoulder and, in particular, working on the shoulder muscle, but was also seeking a second opinion regarding surgery.
31In his report, dated 23 April 2019, Mr Oka notes that the plaintiff had undergone a SLAP repair on 18 March 2019 and that his surgeon, Associate Professor Ek, was happy with post-operative progress and he had commenced physiotherapy after surgery.
32In his final report, dated 9 November 2019, Mr Oka states:
“His range is full range of motion without significant pain and his overall shoulder strength is improving. However, he still struggles with the following:
· Resting pain
· Walking with arm swing
· Sitting with arm rest
·Shoulder loading + lateral movement (abduction, horizontal adduction or horizontal abduction)”[50]
[50]See page 69 JCB
33Mr Oka referred the plaintiff to the sports and exercise physician, Dr Paul Blackman, seemingly in or about November 2019. When seen, the plaintiff gave a history of the transport accident to Dr Blackman and complained of feeling aching through the left shoulder with resting his weight on the left elbow, lying on his left side, and even walking when he is swinging his arm. In particular, he informed Dr Blackman that he was avoiding doing much of the physical load at work because of the pain. He also informed Dr Blackman that he had tried numerous anti-inflammatories, although he now has periods of significant gastrointestinal tract upset and therefore has stopped these altogether.
34Examination at that time demonstrated a full range of movement of the left shoulder with subtle pain at end range abduction, jerky scapular movements. All rotator cuff signs were negative with good power and negative impingement testing. Dr Blackman did note there was a mildly positive apprehension test, positive relocation test and increased PA glides with a click. Apparently Dr Blackman explained to the plaintiff that his only positive signs today were of glenohumeral instability and particularly anteriorly.
35Initially, on reviewing the earlier MRI scans, Dr Blackman was of the view that it appeared the plaintiff had suffered anterior labral tearing, and Dr Blackman was suspicious that he had symptoms of anterior instability, and these were now ongoing. Alternatively, the plaintiff may be symptomatic as an ongoing problem from his SLAP tear.
36Dr Blackman again examined the plaintiff on 20 November 2019 following an MRI scan on 11 November 2019 which revealed a “good” SLAP repair that is intact, some mild chondral wear in the glenohumeral joint, and mild subacromial bursitis. After discussion, Dr Blackman injected the plaintiff with a combination of Celestone Chronodose ampoule and Xylocaine in the left glenohumeral joint, which he tolerated well.
37On 20 December 2019 the plaintiff was reviewed, and Dr Blackman noted that he was sore for a few days post the injection, but no change since. Dr Blackman at that time assessed him to probably have subacromial pain, some glenohumeral pain, as well as underlying instability/SLAP issues.[51]
[51]See the material from Dr Blackman at pages 255-257 JCB
38I also refer to two reports from the physiotherapist, Ms Janet Main, dated 28 June 2018[52] and 22 September 2018.[53]
[52]See page 70 JCB
[53]See page 71 JCB
39Seemingly, Ms Main was also involved with his physiotherapy, and she also notes that, having regained full movement of the left shoulder and gaining some significant strength, he returned to work, but found that symptoms flared up significantly with the high physical demands. As of June 2018, Ms Main was of the opinion the plaintiff would benefit from continual rehabilitation and that he should refrain from physical labour for at least another twelve weeks to allow his shoulder to continue to heal.
40In her later report, dated 22 September 2018, Ms Main notes the plaintiff “continues to work hard at his rehabilitation”[54] while trying to continue to manage his business. She also notes that, since her last correspondence, the plaintiff had undergone further scans, general practitioner opinion and orthopaedic opinion. At one stage, it was recommended to trial cortisone to rule out the bursa being the main issue. She notes this has not helped resolve the issue and it is most likely the tear in the joint which continues to be the biggest problem.
[54]See page 71 JCB
41I also refer to the operation report of Associate Professor Ek.[55] The pre-operative diagnosis was a left shoulder posterior labral tear and superior labral (SLAP Type 2) tear, and the operations performed were a left shoulder arthroscopic posterior labral repair and SLAP repair undertaken on 18 March 2019.
[55]See pages 72-73 JCB
42In a report dated 21 May 2019 to Dr Michael Ryan (a general practitioner), dated 21 May 2019,[56] Dr Naghman Choudhry, on behalf of Associate Professor Ek, stated:
“I saw this gentleman in the clinic today. He is very pleased with the outcome of his surgery. He has almost full range of motion of his shoulder with full forward flexion, abduction and external rotation. Internal rotation is up to L2 which is less compared to the other side but still significantly better than prior to the surgery.
He is starting gradual strengthening with his physiotherapist and will continue under their care until the end of his rehab. We would be more than happy to see him again if he should have any further issues.”[57]
[56]See page 73 JCB
[57]See page 75 JCB
43I also refer to the reports of the orthopaedic surgeon, Clinical Associate Professor Mark Haber, dated 22 July 2021[58] and 5 August 2021.[59]
[58]See page 77-78 JCB
[59]See page 79 JCB
44Associate Professor Haber consulted with the plaintiff, who was referred by Dr Shingai Garutsa, from the My Family Medical Clinic in Kingsville. When first seen, the presenting problem was left shoulder pain with a provisional diagnosis of post-operative labral repair, with ongoing pain currently under investigation. It was noted that the plaintiff had undergone three MRI scans, the most recent being in November 2019, in which Associate Professor Haber noted a previous posterior labral tear with no evidence of a residual or recurrent tear detected. Furthermore, the anterior labrum was maintained and there was minor-mild glenohumeral joint chondropathy.
45Associate Professor Haber considered that, bearing in mind the last MRI scan was nearly two years old there would be a further MRI scan.
46Associate Professor Haber arranged for the plaintiff to under a further MRI scan. This MRI scan was the one undertaken on 1 August 2021.[60]
[60]See page 59 JCB
47In his report dated 5 August 2021, Associate Professor Haber notes that the more recent MRI scan was reported as revealing:
“1. Previous labral repair with no particular untoward features.
2. Fluid filled cleft/recess undermines the anterosuperior labrum.
3.There is slight posterior decentring of the humeral head but the chondral surfaces are intact.
4. The rotator cuff is preserved.”[61]
[61]See page 79 JCB
48In particular, Associate Professor Haber noted the significant posterior decentring of the humeral head and the thinning of the chondral surface of the glenoid.
49Associate Professor Haber reports there was ongoing discussion with the plaintiff as to future management and he was of the opinion that, at that stage, there did not appear to be a surgical solution. There was discussion about the role of modifying the plaintiff’s physical activities to maintain good range of motion and strength, but not overload the joint. Associate Professor Haber was also of the view that the plaintiff may benefit from “judicious use of analgesics”.[62]
[62]See page 79 JCB
50I also refer to the report of the exercise physiologist, Mr David Anstiss, dated 1 September 2021.[63] Mr Anstiss reports that the plaintiff first came under his care on 4 February 2021. He also noted that, being an accredited exercise physiologist, he was unable to actually diagnose the plaintiff’s injuries, however, after the initial consultation with the plaintiff, he believed that the continuing pain was due to poor shoulder mechanics and a lack of strength in the musculature supporting the plaintiff’s shoulder.
[63]See pages 80-81 JCB
51Over the period from 4 February 2021 to 13 August 2021, the plaintiff saw Mr Anstiss twenty-one times and the plaintiff also took part in five semi-private rehabilitation groups between 28 March 2021 and 26 April 2021. Mr Anstiss notes that during these sessions the plaintiff’s programming focused on restoring shoulder function and improving the strength of both his upper and lower body, with the goal of enabling him to return to his pre-injury activities, including recreational sport.
52In particular, Mr Anstiss states:
“5. Your recommendations for future treatment including, but not limited to, Exercise Physiology
In consultation with the Physiotherapist here at Melbourne Fitness and Performance; I believe that with regular exercise therapy, [the plaintiff’s] shoulder pain can be resorted to a level where he is able to perform his regular pre-accident activities with minimal pain. My recommendations for [the plaintiff’s] future treatment would be regular supervised exercise sessions 2-3 times p/wk either in a 1:1 or in a small group setting. As well as monthly consults with a Physiotherapist.
6. Outcome of any attempts of self-management / withdrawal of care Attempts of [the plaintiff] to self-manage his injury have proven to be difficult due to a head/neck injury that [the plaintiff] sustained in his early teens, leaving him with poor short-term memory. This has made it quite difficult for him to effectively perform any structured rehab without supervision as he struggles to remember proper exercise technique and execution. This is why I believe that 1:1 or semi-private exercise groups will be the best option for [the plaintiff] moving forward.
7. Your Prognosis of [the plaintiff’s] Injuries and any other general matters
As stated above, I believe that through regular exercise therapy [the plaintiff’s] shoulder pain can be brought to a level where he is able to perform all of his pre-accident activity with minimal pain. I believe that his shoulder pain will never fully resolve due to the thinning of the chondral surface of the glenoid which was seen in an MRI requested by Dr Mark Haber around the 5 of August 2021. However, I do believe that his pain levels can certainly be improved form where they currently are.”[64]
[64]See pages 80-81 JCB
53I also refer to the report from Dr Barry Slon, a specialist pain medicine physician and specialist anaesthetist, dated 13 October 2021.[65] Dr Slon, consulted with the plaintiff on 13 October 2021 – the plaintiff being referred there by a general practitioner, Dr Arash Hosseini, from the My Family Medical Clinic in Kingsville. Dr Slon obtained a history of the transport accident, the surgery, resulting in a range of motion on the left side equivalent to that on the right side.
[65]See such report at pages 82-83 JCB
54At the time of the consultation, the plaintiff complained of a dull and achy pain, mostly of 2/10, but occasionally increasing to 8/10, with his function not being impaired. At that time, his medication included Paroxetine, inhaled Fluticasone and Dutasteride for hair loss. Dr Slon noted that the plaintiff previously responded well to Ibuprofen, but stopped due to gastritis or ulceration.
55On examination, Dr Slon found the plaintiff to be in good condition, well-muscled and healthy, with an excellent range of motion of the left shoulder, which had normal morphology. There was neither local tenderness nor allodynia. Dr Slon observed three arthroscopic port sites, but there was normal sensation associated with the left forequarter. In particular, Dr Slon stated:
“Assuming that this is a somatic, not neuropathic, pain, and the major clue here is his response to ibuprofen, it makes most sense to trial him on the two COX-2 inhibitors currently available on the Australian market. Prescriptions were issued for meloxicam 7.5mg strengths, which he may take as a single or double dose per day, as well as celecoxib 100mg every twelve hours. He should trial both agents if necessary and settle for one.”[66]
[66]See page 82 JCB
Medico-legal reports relied on by the Plaintiff
56The plaintiff relies on the following medico-legal examinations:
(a) an examination by the orthopaedic surgeon, Mr Russell Miller, on 18 June 2021 (via Zoom);[67]
(b) the report of the consultant psychiatrist, Dr Gregory White, who examined the plaintiff on 18 August 2021 (a Telehealth interview);[68] and
(c) the interventional pain specialist anaesthetist, Dr Richard Sullivan, who examined the plaintiff on 5 February 2022.[69]
[67]See report of Mr Russell Miller, dated 13 July 2021, at pages 84-90 JCB
[68]See report of Dr Gregory White, dated 24 August 2021, at pages 91-110 JCB
[69]See report of Dr Richard Sullivan, dated 15 February 2022, at pages 111-116 JCB
57When assessed (via Zoom) by Mr Miller on 18 June 2021, Mr Miller obtained a history involving a description of the transport accident and a present and past medical history. In particular, at the time of the examination, the plaintiff complained that there was ache, discomfort and pain in the left shoulder, worse with repetitive and overhead activities. Such pain caused sleep disturbance and difficulty with physical activities, including lifting anything beyond 5 kilograms. The symptoms fluctuate and there has been no pattern towards further improvement.
58Mr Miller also recorded that the plaintiff has pre-existing anxiety and depression, which have likely been worsened by the transport accident. This is associated with the probable development of a chronic pain syndrome, which will complicate the assessment and management of his condition – this requires additional assessment by a psychiatrist.
59Mr Miller noted that, in terms of treatment, the plaintiff prefers to avoid taking pain-relief medications. He was having ongoing physiotherapy on a fortnightly basis, but had not undergone any hydrotherapy. The plaintiff does not use a brace, orthosis or walking aid, and there were no plans for any further surgery. He had not attended a formal pain management program and was not having any psychological counselling, but he does use antidepressant medications in the form of Paroxetine.
60In relation to past medical history, the plaintiff gave a history that he last suffered a laceration to his left knee as a child, from which he recovered with no ongoing symptoms. The plaintiff also suffered a major head trauma while playing football when he was sixteen years old and described this as “bleeding of the brain”, from which he reported he made a good recovery, but has lasting issues with memories. Furthermore, he suffered another football injury in 2007, when he fractured his right ankle and underwent surgery. The plaintiff also described multiple football injuries to his lower limbs, some involving fractures, and he reports a good recovery from all of these with no ongoing symptoms.
61In particular, the plaintiff reported there were no previous problems with his left shoulder.
62Mr Miller noted that during physical examination, the plaintiff was cooperative and was a clear and straightforward historian and pleasant to deal with. Examination of the left shoulder revealed a well-healed anterior scar and no deformity. Posterior scars were not visible and the range of motion was: abduction 140 degrees; forward elevation 140 degrees; external rotation 50 degrees and all other movements were normal. Mr Miller noted that there was moderate irritability during shoulder movement.
63Mr Miller had all the radiology up to the MRI scan on 11 November 2019, but did not have available the MRI scan performed on 1 August 2021.
64In his report, Mr Miller states in part:
“4.0 DIAGNOSIS AND PROGNOSIS
Left Shoulder
There has been an injury to the left shoulder involving a posterior labral tear and superior labral (SLAP Type 2) tear. For which, arthroscopic repair was performed by A/Prof. Eugene Ek at the Avenue Hospital, as recorded in the Operation Report dated 18 March 2019.
The ongoing symptoms in the left shoulder are likely to be due to: rotator cuff dysfunction, capsulitis, pathology in the acromio-clavicular joint, referred pain from the cervical spine, and manifestation of a chronic pain syndrome. The risk of developing arthritic disease is low. The prognosis is fair.
Mental State
There has been a deterioration in [the plaintiff’s] mental state which includes: anxiety, depression, and development of a chronic pain syndrome. This complicates the assessment and management of his condition and would benefit from additional assessment by a psychiatrist.
It is my view however, that the current clinical status is satisfactorily explained by defined organic disease.
5.0 ANALYSIS OF FINDINGS
5.1DISCUSSION
Relationship to Accident
The above injuries and subsequent development of a chronic pain syndrome are consistent with the accident described.
Other Disease and Injury
Apart from the above, nil identified.
Requirement for Further Treatment
The client will require ongoing conservative treatment. His current conservative regime is appropriate and will need to continue indefinitely, and may include additional measures for pain management and rehabilitation.
The client is unlikely to benefit from any form of further shoulder surgery. I note there has been no such recommendation to date. The risk of developing arthritic disease in the left shoulder is low.
The requirement for treatment is accident related.
Review by Other Specialist
Psychiatric review is recommended.
Capacity for Work
In terms of the left shoulder, he will have difficulty with work involving repetitive left arm actions, use of the left arm in the above shoulder position, and lifting of weights of more than 5 kilograms.
It is likely that the development of a chronic pain syndrome further impacts his capacity to work.
These restrictions are likely to be permanent and accident related. The [plaintiff] therefore could not return to his pre-injury duties on any significant full-time or part-time basis. I note the [plaintiff] has not returned to his pre-injury duties as described in Section 3.6 of this report, and this is consistent with the described injuries.
5.2 STABILISATION
[The plaintiff’s] injuries have substantially stabilised as of the date of this report (June 2021). In the sense that there is no prospect of improvement. There is a likelihood of medium to long-term deterioration.”[70]
[70]See pages 88-89 JCB
(My emphasis.)
65In particular, under the heading “LIFESTYLE EVALUATION”, Mr Miller notes that the plaintiff is able to drive a motor vehicle, but he has difficulty driving long distances or, indeed, walking long distances. According to Mr Miller, he has occasional difficulties with domestic and gardening activities, for which he is assisted by his partner. In particular, Mr Miller obtained the history that the plaintiff enjoyed running, gym and regular social sporting activities, including tennis, cricket and golf. Mr Miller records that the plaintiff describes these sports as “‘my life’”. Mr Miller notes that the plaintiff is unable to resume those, and this causes him significant frustration. Mr Miller opines that the plaintiff will have a reduction in his capacity for pre-injury leisure and recreational activities as a result of the described shoulder injury.
66When the plaintiff was examined by the psychiatrist, Dr White, on 18 August 2021 (by a Telehealth interview), he obtained a physical history involving the presenting condition, the effects of the condition, current treatment, previous psychiatric history, family history, relationships, education, occupational history, alcohol and other substances’ history, and non-psychiatric medical history, together with current functioning.
67Furthermore, Dr White made a mental state examination, and in his report, Dr White concluded:
“… [The plaintiff] is a 35-year-old man who describes symptoms of a major depressive disorder, recurrent, characterised by repeated episodes of persistent lowered mood and other psychological, physical and social symptoms of depression.
Please see Appendix 1 with regard to criteria used to make the diagnosis.
The condition appears to have relapsed in a setting of chronic pain and physical disability following a motor vehicle accident in 2018.
The chronic pain and physical disability have reportedly impacted upon his activities of daily living, enjoyment of life, relationships and capacity for employment.
[The plaintiff’s] psychiatric symptoms have reportedly included low mood, anxiety, loss of motivation, insomnia, tiredness and reduced cognitive abilities with ensuing impacts upon his work capacity, activities of daily living and relationships over and above the impacts from his physical symptoms.
Other possibly significant causative factors with regard to the development of the psychiatric disorder(s) appear, upon the history available, to have included a longstanding history of ADHD (attention-deficit hyperactivity disorder) and a mild neurocognitive disorder arising from a head injury at age 17.
… [The plaintiff] describes a significant period of consumption of alcohol and illicit substances in his twenties. However, there is no evidence of any current alcohol or substance abuse.
He describes a mild family psychiatric history, but this is unlikely to have been a significant causative factor.
He describes some longstanding mild obsessive-compulsive personality traits. However, there is no evidence of any other significant problematic personality traits or personality disorder.
He describes some family estrangement. However, there is no evidence that this has been a significant causative factor.
Compounding factors appear to have included a significant degree of post-traumatic embitterment, grief and demoralisation since the 2018 accident, and the significant ongoing impacts from the psychiatric and physical symptomatology upon [the plaintiff’s] relationships, activities of daily living and work capacity.”[71]
[emphasis in original.]
[71]See pages 100-101 JCB
68When seen by the interventional pain specialist and specialist anaesthetist, Dr Sullivan, on 15 February 2022, the plaintiff informed Dr Sullivan that, at that time, he estimated he was working between sixty and eighty hours per week and has been the owner/operator of a number of businesses, including the company ReSource, involved in battery recycling and scrap metal recycling. Furthermore, the plaintiff stated that he is the owner/operator of ReSource International Trading, which is a scrap metal company; PB Industries, which is a solar panel recycling company and ARRC, is a company that develops solutions for contaminated metal.
69At the consultation, the plaintiff complained of left-sided shoulder pain, consisting of two distinct pains – one experienced in the scapula region of the posterior shoulder, which is constant pain, which he described as an ache and ranges in severity between 2/10 and 4/10. The plaintiff noted that, although such pain is constant, it is the least debilitating of the two pains that he suffers.
70The second type of pain that the plaintiff described is an intermittent pain that is felt deep within the shoulder joint itself, and such pain, itself, is sharp and severe and is rated around 8/10 or 9/10 when it is provoked. This pain can be precipitated by sleeping on the left side, or by undertaking activities utilising his left upper limb. In particular, Dr Sullivan obtained a history that the plaintiff had a substantive number of pre-injury recreational and social activities as being substantial aggravators of this particular pain, including running, hiking, bike riding, mountaineering, swimming, playing netball or tennis, playing golf or football, trying to walk for longer than 2 kilometres, or trying to drive for longer than thirty minutes.
71The plaintiff also stated that he finds some improvement with massage and physiotherapy, particularly for the constant pain, and if he has an aggravation giving rise to the more acute pain in the shoulder joint, he finds he has to take medication and lie on a hard surface on his back.
72Dr Sullivan noted that while the plaintiff had had extensive physiotherapy, chiropractic input, osteopathic input and the assistance of pain physicians in the past, he currently has no treatment other than utilisation of analgesic medications. In this respect, the plaintiff informed Dr Sullivan that he takes Meloxicam, 50 milligrams daily, and this reduces, especially, the constant background pain. Furthermore, the plaintiff stated he takes Vortioxetine for ongoing mood disturbance, having expressed depression, anxiety, frustration and stress since the road traffic accident. He also takes Amitriptyline, 25 milligrams at night, that he uses intermittently if he has several nights of disturbed sleep in a row.
73Dr Sullivan reports that the plaintiff made clear that, outside of his work, he was “extremely passionate” about his outdoor activities and recreational pursuits, and this was a focal point of his relationship with his now fiancée. Beyond the matters already referred to, he enjoyed engaging in triathlons and also the individual aspects of triathlons, including running, bike riding and swimming. Furthermore, he regularly used to go hiking with his partner, played tennis and netball and described himself as being “exceptionally physically fit and athletic”. He also enjoyed playing golf and football on a regular basis.
74Dr Sullivan obtained a history that the plaintiff had prior fractures to his left and right wrists in his teenage years and fractures to the tibia and fibular as a result of a football injury in his early twenties. Dr Sullivan noted, also, that the plaintiff had trialled a host of medications, including non-steroidal anti-inflammatories, paracetamol and a range of opioids, but was plagued by side effects from these medications, including constipation, cognitive impairment and gastric ulceration. The plaintiff also highlighted that if he inadvertently sleeps on his left side, it causes a significant aggravation of his pain levels, and this would happen two to three times a week, when he rolls over in his sleep. In particular, he reported aggravation of his pain if he takes forcible activities with his left upper limb.
75Examination revealed his left shoulder to have well healed and non-tender surgical scars from his arthroscopy. Furthermore, the plaintiff had a full range of active shoulder movement without restriction or flexion, abduction, extension and internal and external rotation. There was no muscular asymmetry, no wasting, no fasciculation, no sensory disturbance and the deep tendon reflexes in his upper limbs were present and symmetrical. Strength testing of the group biceps, triceps and deltoids demonstrated normal power. Sensation testing of his upper limbs revealed no abnormalities.
76Dr Sullivan noted that all questions were answered in a frank and forthright manner and there was no abnormal illness behaviour.
77In his summary, Dr Sullivan stated:
“Despite having obtained a meaningful improvement following the operation including now having a full active range of movement of the shoulder he continues to have chronic pain affecting the left shoulder consequent to the aforementioned road traffic accident.
He has substantive functional limitations that relates principally and for your client meaningfully to his recreational and social pursuits but also impact his capacity to engage in a full range of vocational activities.
His clinical condition presents as completely stable and stationary, and I would expect the aforementioned limitations to continue into the foreseeable future.
With regard to the specific questions, in your letter of instruction, I note of the following:
1. Your diagnosis of injuries suffered as a result of the motor vehicle accident on 18 March 2018:
The diagnosis is chronic pain condition isolated to the left shoulder resulting from soft tissue injuries to the left glenohumeral joint and surrounding soft tissues of the left shoulder.
His chronic pain condition has features consistent with the organic process of central sensitization in addition to ongoing mechanical pain and post-operative pain affecting the left shoulder joint.
2. If in answer to 1. you have diagnosed a chronic pain condition, in your medical opinion does such a condition have an organic basis;
Your client has an entirely organic basis to his chronic pain condition.
3. Your recommendations for future treatment;
I would recommend that your client continue with his current management. He has had extensive input from a range of clinicians and is not considered a candidate for further surgical intervention.
He has found reasonable and meaningful ways to adapt to and manage his chronic pain condition and I do not expect there to be any significant or meaningful improvement with further medical interventions now or into the future.
4. Details of what restrictions, in relation to personal, domestic and recreational activities, are imposed upon … [the plaintiff] by reason of the diagnosed injuries and your opinion as to whether those restrictions can be considered as being permanent ;
[The plaintiff] has substantive and meaningful restrictions of a permanent nature relating to his capacity to engage in a number of personal domestic and recreational activities. Principle among these are the restrictions pertaining to his ability to engage in activities including triathlon events, hiking, mountaineering, playing tennis, netball, golf and football. He also has limitations pertaining to driving to a maximum of 30 minutes and walking to a distance of around 1 km to 2 km.
I do not expect these limitations to change in the foreseeable future.
5. Your prognosis for … [the plaintiff’s] injuries; and
My expectation is that your client will continue to experience chronic pain affecting his left shoulder as a consequence of the road traffic accident injuries sustained on or around 18 March 2018.”[72]
[72]See report of Mr Richard Sullivan, dated 15 February 2022, pages 115-116 JCB
78It is convenient to refer to the other medico-legal reports. Initially, I refer to the examinations by the following doctors who saw the plaintiff jointly on behalf of the Transport Accident Commission and those acting for the plaintiff. Those examinations were:
(a) by the orthopaedic upper limb surgeon, Mr Ash Chehata, on 5 May 2000;[73] and
(b) the consultant psychiatrist, Dr David Weissman, on 25 June 2020.[74]
[73]See report of Mr Ash Chehata, dated 9 May 2020, at pages 117-116 JCB
[74]See report of Dr David Weissman, dated 25 June 2020, at pages 127-142 JCB
79Mr Chehata obtained a history of the transport accident and, in particular, obtained a history that, although the plaintiff had a full range of movement of his left shoulder, he was unable to perform any of his normal activities or recreational pursuits. In particular, Mr Chehata noted the plaintiff was unable to run, walk, or ride a bike, and has constant rest pain and, at that time, was unable to drive more than thirty minutes and has ongoing dull severe pain.
80Mr Chehata also obtained a past medical history which involved depression, migraines and multiple injuries and multiple fractures, with the plaintiff noting that he has fractured eight bones in the lower limbs. Furthermore, he had a major contusion with a brain bleed requiring a burr hole into his skull and all of this was a result of football incidents. He also informed Mr Chehata that he had suffered compound fractures of his tibia and fibular, with a major infection requiring admission for over three months for his left leg, and he also underwent bilateral impingement surgery for both hips, performed almost five years ago.
81Examination did reveal a full range of movement of the left shoulder, with no restriction whatsoever. Furthermore, Mr Chehata found no restriction or irritability, but there was a complaint of deep-seated pain, which was the major issue.
82In his report, Mr Chehata sets out the various questions posed by those acting for the plaintiff and the Transport Accident Commission, and his answers thereto in his report. I refer to the following:
“1. History in relation to this matter.
The history is as noted above.
2. Your diagnosis of what injuries [the plaintiff] has suffered.
He suffered posterior labral tear that has had a posterior labral repair.
3. Treatment received to date.
The treatment received to date is as noted above.
4. Your recommendations for future treatment.
He is to continue the shoulder therapy regime, with which he feels is making significant gains and is certainly likely to achieve a good result considering he has a full range of movement, although with ongoing deep-seated shoulder pain.
5.[The plaintiff’s] level of incapacity in relation to his personal, domestic and recreational activities.
His incapacity with regard to his recreational and domestic pursuits, as well as personal activities are variable. He has stopped all his recreational pursuits as any of those activities cause ongoing pain. from (sic) a personal perspective, he has a full range of movement and is able to perform all of his personal and domestic duties.
6. [The plaintiff’s] current capacity for employment.
He has a capacity to remain employed.
7. [The plaintiff’s] long term capacity for employment.
His long term capacity for employment is unlikely to be affected. Clearly his role as maintenance personnel is almost impossible due to the necessity of such heavy work. With ongoing pain, even with a full range of movement, this is likely to be affected.
8. Your prognosis for [the plaintiff’s] injuries.
His prognosis is excellent.
…
TAC SPECIFIC QUESTIONS
Impairment:
Your impairment score should be confined to your own specialty.
· Please describe the prognosis for [the plaintiff’s] injuries condition.
175After a consideration of all the material, I do not consider that the video film impacts on the credit of the plaintiff.
176I make the following findings:
(a) The plaintiff is a thirty-six-year-old man who lives with his partner, “Ginger”, and their son, Alex, who was born in December 2020. He is naturally right handed;
(b) On 18 March 2018, the plaintiff suffered a transport accident and as a result of that accident, injured his left shoulder and in particular, suffered a posterior labral tear and a superior labral (SLAP type 2) tear from which arthroscopic repair was performed by Associate Professor Eugene Ek at The Avenue hospital on 18 March 2019;
(c) Although the plaintiff had suffered various fractures of bones in the legs (many of which were due to football injuries), a significant head injury, a previous transport accident and, indeed, as already discussed, a bilateral hip injury, prior to the transport accident, there is no evidence that he suffered any injury to his left shoulder prior to the transport accident. The plaintiff had suffered anxiety prior to the transport accident, which seemingly commenced at the time of his parent’s separation and an ongoing stressor of that anxiety has been the relationship with his father, which became manifest during the course of his evidence, when queried about that relationship. The plaintiff gave evidence that he takes medication for such anxiety and, indeed, there is no evidence that at any time prior to the transport injury has that psychological state manifested itself in any type of somatic symptoms;
(d) I accept that over a reasonably long period leading up to the transport accident, the plaintiff did have, as his Senior Counsel described, a “passion” for outdoor sports and recreation. Such activities extended to hiking, swimming, paddling canoes, tennis, playing golf (with a handicap of 11) and working out in a gymnasium. Photographs of the plaintiff prior to the transport accident depict him as a very fit and well-muscled young man.[148] The aforementioned photos should be compared to photos of the plaintiff after the transport accident;[149]
[148]See exhibit “TR1” to the affidavit of the plaintiff, sworn on 21 December 2020, at pages 15-27 JCB
[149]I refer to exhibit “TR2” to the affidavit of the plaintiff, sworn on 21 December 2020, at pages 29-30 JCB
(e) Again, as his Senior Counsel described, I accept that such sporting and physical activities were “central to his life” and amounted to his social life;
(f) It is also of some significance, in my view, that his partner, Ginger, is also very much engaged in outdoor sports and activities and indeed, competes as an “iron woman”. The plaintiff confirmed, in his evidence, that his partner was an “outdoorsy sort of person” and described how he first met her in Slovenia (which was part of a five-year sojourn overseas) at a hostel late one night when the plaintiff wanted to go for a walk and she was the only one “up for it”;
(g) The plaintiff also gave evidence that prior to the transport accident, he and his partner would have recreation together in terms of overseas travel and holidays and also had discussed what the situation would be when hopefully a child arrived. The plaintiff gave evidence that they “joked about having an adventure baby, so we have an adventure cat, we have an adventure dog – we have two adventure dogs, and we’d have an adventure baby. You know, we talked about going on hikes, and we bought actually a shoulder pack which we’ve never used so I could sit him on my shoulders and go on hikes and that was something we were looking forward to, and something that I’m still hopefully looking forward to … .;”[150]
(h) Following the left shoulder surgery, and allowing some period of rehabilitation, the plaintiff accepted there was some improvement in his pain, although he has always experienced some degree of pain, which he assesses at about 2-3/10, but such pain does not overly restrict him in normal day-to-day activities. Furthermore, the plaintiff acknowledges that from a short time after the surgery, he regained full movement of his left shoulder and indeed, this has been demonstrated by the various examinations over the years;
(i) However, the plaintiff has not been able to return to his outdoor sports which he enjoyed prior to the transport accident as he finds that any “loading up” on the left shoulder, by which he means picking up anything of a heavy nature or engaging in heavy exercising, gives rise to significant pain symptoms which he assesses to be in the order of 9/10. Such pain can last up to a number of days before it subsides back to his everyday pain of approximately 3/10;
(j) The plaintiff describes, and I accept, that he has tried a large variety of different treatment modalities (including injecting the area) to overcome this problem, all of which get to a certain level and then the shoulder again develops significant pain. This process of seeking out improvement has been ongoing, leading to frustration and annoyance on the part of the plaintiff, given that there has been no real improvement. The situation has been made more difficult by COVID restrictions and with his partner insisting that he curb any outside activities to protect their son from contracting the virus;
(k) The plaintiff accepted that his business activity involved working many hours a week – frequently up to seventy or eighty – and that the relatively recent birth does take up more time now than prior to the transport accident, but he asserts, and I accept, that if his left shoulder was now in the condition that it was prior to the transport accident he, again, would be pursuing the activities that he was engaged in prior to the transport accident;
(l) I accept that as a result of his left shoulder condition, the plaintiff has lost – or has substantially lost – the capacity to engage in what may be described as reasonably extreme sporting activities and recreational activities, such as hiking, swimming, paddling canoes, cycling long distances and running long distances either alone or in partnership with his partner;
(m) I also accept the evidence of the partner of the plaintiff – who was described as a nurse practitioner, being an American qualification (described as someone being between a doctor and a nurse) which permits her to have consultations with Texan residents by videolink. She notes that she has observed the plaintiff regularly suffering from insomnia and for him to be awake more than three hours in the early morning caused by pain in his shoulder, and it has “knock on effects on his mental health, [their] relationship and his work”;[151]
(n) Furthermore, his partner describes that the “intimate relationship” between them has been “impacted significantly”. In particular, she notes that the plaintiff cannot hold her hand when they are in the car because that position hurts his shoulder, and cannot cuddle her if it means lying on his left side. In particular, although they have managed to start a family (through IVF), she comments that their sexual relationship is still deeply affected and the plaintiff is in so much pain after engaging in sex that it is not worth him engaging in it now;
(o) She also notes that she and the plaintiff had dreams of “being able to go rock climbing, hiking and other outdoor activities” and is now realising “more and more” that this will probably not happen. Again, she notes that the plaintiff struggles to hold/carry their son for extended periods of time, including using a baby carrier, because of the extra loading on his shoulder. She observed the plaintiff being unable to do all of the things he had hoped and expected to be able to do as a father.
[150]T72, L21 – T73, L5
[151]See affidavit of Ms Ginger Krentz sworn 12 June 2022 at paragraph [25], page 38 JCB
177After a consideration of all of the evidence, I have come to the view that it is probable that the pain which the plaintiff suffers in his left shoulder – in particular, the more severe pain – is organically based, and to the extent that there is any psychological issues giving rise to pain symptoms, they would be accommodated by the principles enunciated in Richards & Anor v Wylie.[152]
[152]Op cit
178I have come to this view for the following reasons:
(a) The evidence would suggest that the more severe pain suffered by the plaintiff in his left shoulder occurs, not randomly, but in circumstances concurrently, or soon thereafter, when the left shoulder is “loaded up” – that is to say, where the plaintiff engages in picking up anything of a heavy nature, or engaging in heavy exercising involving the left shoulder. The “loading up” seems to be the critical factor moving the pain from a relatively modest 2‑3/10 to significant pain in the range of 9/10, which may last for a few days;
(b) I also refer to the evidence of some of the doctors who have treated the plaintiff:
(i)Mr Oka, from the Kieser, South Melbourne, referred the plaintiff to Dr Blackman, a sports and exercise physician, who seemingly consulted with the plaintiff on or about 11 November 2019. On that date, Dr Blackman obtained a history of the transport accident and the surgery undertaken by Professor Ek some eight months prior to that consultation. Dr Blackman noted that the plaintiff had initially progressed well after the surgery, but over the past three months, as he has attempted to increase “loads”, he has had an increase in discomfort – low-grade pain. Dr Blackman made an examination and told the plaintiff the only positive signs were of glenohumeral instability, particularly anteriorly.
Dr Blackman noted, that on reviewing the plaintiff’s previous MRI scans in 2018, there would appear to have been some anterior labral tearing as well, and he was, accordingly, “suspicious” that the plaintiff had symptoms of anterior instability, which are now ongoing or, alternatively, an ongoing problem with his SLAP tear.
Accordingly, Dr Blackman arranged for the plaintiff to undergo a further MRI scan, which was the MRI scan undertaken on 11 November 2019.[153]
[153]See page 58 JCB
When seen by Dr Blackman on or about 20 November 2019 (after the MRI scan), Dr Blackman notes that the MRI scan shows a good SLAP repair that is intact, some mild chondral wear in the glenohumeral joint and mild subacromial bursitis. At that time, Dr Blackman injected the plaintiff with a combination of Celestone and Xylocaine into the left glenohumeral joint, which the plaintiff “tolerated well”.
In responding to Mr Oka, Dr Blackman stated the plaintiff should rest for the next fortnight and thereafter be involved with some scapula-stabilising rehabilitation exercises only, and should avoid all combined strength movements for at least a further two weeks.
On 20 December 2019, Dr Blackman reviewed the plaintiff and obtained a history that the shoulder was sore for a few days post the injections, but “no change since”. At that time, Dr Blackman noted “subacromial pain likely some GH pain as well as underlying instability/SLAP issues”.[154] The whole thrust of Dr Blackman’s evidence is that there was an organic basis for the symptoms described by the plaintiff in his left shoulder – particularly when “loaded up”;
[154]See page 257 Supplementary JCB
(ii)A general practitioner from a family medical clinic in Kingsville referred the plaintiff to clinical Associate Professor Marker Haber, referred to as a “shoulder orthopaedist”. Such assessment seemingly occurred, initially, on 22 July 2021, and after that initial consultation Associate Professor Haber arranged for the plaintiff to undergo yet another MRI scan on 1 August 2021.[155]
[155]See page 59 JCB
When reviewed by Associate Professor Haber on or about 5 August 2021 (a few days after the MRI scan undertaken on 1 August 2021), Associate Professor Haber noted that that MRI scan did demonstrate significant osteo decentring of the humeral head and what appeared to be thinning of the chondral surface of the glenoid.
Associate Professor Haber reports that he discussed at length ongoing management with the plaintiff, and although accepting that there did not appear to be a surgical solution, he did suggest that the plaintiff “[modify] his physical activities to maintain good range of motion and strength”,[156] but not overload the joint. He also thought that the plaintiff would be benefit from “judicious use of analgesics”.[157]
[156]See page 79 JCB
[157]See page 79 JCB
Associate Professor Haber was also of the view that if symptoms deteriorated further, he would suggest a repeat MRI scan in approximately twelve months’ time.
Again, the thrust of Associate Professor Haber’s report would suggest his belief that there is an organic basis for the symptoms complained of by the plaintiff in his left shoulder. Neither he, nor Dr Blackman, raised any suggestion of somatic or non-organic causes for the pain.
(c) I also consider that the opinions of the following medico-legal specialists give support to the proposition that there is an organic basis for the pain symptoms suffered by the plaintiff. In particular, I refer to the following:
(i)Mr Russell Miller, orthopaedic surgeon, who examined the plaintiff on 18 June 2021, and at that time had available the MRI scans up to the one conducted on 11 November 2019 – the MRI scan arranged by Dr Blackman, to which reference has been made.
Mr Miller was of the opinion that the ongoing symptoms complained of by the plaintiff in the left shoulder were likely to be due to rotator cuff dysfunction, capsulitis, pathology in the acromioclavicular joint, referred pain from the cervical spine and manifestation of a chronic pain syndrome, which he thought were related to the transport accident. In particular, Mr Miller did state that insofar as he referred to a “chronic pain syndrome”, the “current clinical status is satisfactorily explained by defined organic disease”;[158]
(ii)Dr Richard Sullivan, the interventional pain specialist anaesthetist, examined the plaintiff on 15 February 2022. He diagnosed what he considered to be an “entirely organic basis to his chronic pain condition”.[159] In particular, he diagnosed the plaintiff to be suffering a “chronic pain condition isolated to the left shoulder resulting from soft tissue injuries to the left glenohumeral joint and surrounding soft tissues of the left shoulder”.[160] Furthermore, to the extent that such pain was chronic, it had features consistent with the organic process of “central sensitization in addition to ongoing mechanical pain and post-operative pain affecting the left shoulder joint”;[161]
(d) Mr Ash Chehata, the orthopaedic surgeon who medico-legally examined the plaintiff on 5 May 2020 and obtained a history that the plaintiff, although having a full range of movement, has ongoing deep-seated shoulder pain, which causes his inability to perform his recreational pursuits, as such activities cause ongoing pain. Although the report could be in clearer terms, Mr Chehata considered such issue to be related to the transport accident. In this respect, although Mr Chehata considered the plaintiff’s prognosis was “excellent”, such opinion much be balanced also by the opinion of Mr Chehata that, prior to his shoulder injury, the plaintiff was involved in overseeing maintenance work which was “incredibly heavy work” involving parts of “blades” weighing in the order of 40 to 50 kilograms. When read appropriately, Mr Chehata considers that, although the plaintiff has a capacity for work, this is limited, as he states:
“… Clearly his role as maintenance personnel is almost impossible due to the necessity of such heavy work. With ongoing pain, even with a full range of movement, this is likely to be affected.”[162]
[158]See page 89 JCB
[159]See page 115 JCB
[160]See page 115 JCB
[161]See page 115 JCB
[162]See page 122 JCB
Again, to the extent the plaintiff was having pain in his shoulder when overloaded, the opinion of Mr Chehata would suggest there is an organic basis for such symptoms.
179On the basis of the foregoing, I reject the opinion of Mr Speck that the source of persistent pain and recovery of strength “has not been identified” and that the plaintiff was suffering a chronic pain syndrome/somatic symptom disorder. However, as I have already pointed out, Mr Speck seemingly did not challenge the plaintiff’s assertion that he was suffering pain in the area of his left shoulder, as described by him, and as submitted by Senior Counsel for the plaintiff, it may be that he would accept the opinion of Dr Sullivan that perhaps there has been pain sensitisation in the area. However, again, as I have pointed out earlier in this judgment, the language of Mr Speck seems more likely to be consistent with psychological mechanisms giving rise to such pain symptoms.
180Furthermore, I am satisfied that, again on the basis of Mr Miller, Dr Sullivan and Mr Chehata, that the impairment of the left shoulder is both permanent and long term. In this regard, I also make reference to the submission by Senior Counsel for the defendant that if the plaintiff returns to the treatment from Mr Anstiss (which has come to an end for COVID reasons), it would seem that he (Mr Anstiss) is confident that the condition will improve and be remedied by certain actions. Although I expect that such a proposition was put by Mr Anstiss in a genuine way, it must be appreciated that the plaintiff has attended Mr Anstiss on approximately twenty-one occasions from February 2021 to August 2021 and there has been no improvement to date. Of course, the break in treatment has been brought about by COVID issues and, indeed, the plaintiff accepted that he most probably would go back to Mr Anstiss to try and improve the condition. As a matter of probability, I have come to the view, as I say, that the condition is permanent and long term.
181Ultimately, I have come to the view that the plaintiff does satisfy the test stated in Humphries & Anor v Poljak,[163] in that he has suffered a serious long-term impairment of a body function, to wit, the use of his left arm and, in particular, his left shoulder. In particular, I consider that the pain and suffering consequences suffered by the plaintiff as a result of his left shoulder injury are serious to this particular plaintiff and, indeed, when the injury is judged by comparison with other cases in the range of possible impairments, can fairly be described as “very considerable” and certainly more than “significant” or “marked”. In particular, it must be borne in mind that, when assessing pain and suffering consequences, one needs to have regard to the whole individual and “not merely some worker of average of uniform characteristics”.[164] Perhaps, obviously enough, given the plaintiff does have good range of movement of the shoulder and suffers low-grade pain, albeit all the time, granting of leave may well have been difficult absent his background and passion for full-on recreational activities.
[163]Op cit
[164]See Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraph [52]
182Finally, I wish to make two points:
(a) I also accept that there has been some financial disadvantage experienced by the plaintiff when he initially suffered the shoulder injury and could not perform the heavier types of work which he was performing at that stage which, in turn, meant, according to the plaintiff, lost contracts. Although there was no particularisation of any financial disadvantage, I accept, in general terms, that there may have been some degree of financial disadvantage, but that, in itself, would not constitute a “serious injury” within the meaning of paragraph (a) of the definition of “serious injury”. On balance, I consider that, to the extent there was pecuniary disadvantage, it is a small added gloss, which adds to the consequences suffered by the plaintiff;
(b) Senior Counsel for the defendant also raised that, given the advent of the plaintiff now working significant hours, the birth of his son and the prospect of a further child would probably have resulted in the plaintiff not being involved to the extent that he was in the recreational activities described by him, absent the transport accident. I reject such submission. The “picture” that I consider the evidence establishes is that, with the advent of children, the plaintiff and his partner, and child or children, would be very much involved in the type of recreational activities that he undertook prior to the transport accident. Whether that would mean further time not working, or whatever, it must be stressed that, as opened by Senior Counsel for the plaintiff, such activities were “central to [the plaintiff’s] life”.[165]
[165]T10, L22
183Accordingly, I find for the plaintiff. Pursuant to s93(6) of the Act, I grant leave to the plaintiff to bring common law proceedings in respect of a left shoulder injury suffered by him arising out of a transport accident occurring on 18 March 2018.
184I will hear the parties on the question of costs.
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