Shiell v Australian Hospital Care Pty Ltd

[1998] QSC 113

IN THE SUPREME COURT
OF QUEENSLAND

No.  2255 of 1995
Brisbane

Before             Williams J

[Shiell v Australian Hospital Care Pty Ltd]

BETWEEN:

LIANNE MAY SHIELL

Plaintiff
AND:

AUSTRALIAN HOSPITAL CARE PTY LTD

Defendant

JUDGMENT - WILLIAMS J
  Judgment delivered 4 June 1998

For sometime prior to the incident which occurred on 22 April 1994 the plaintiff was employed by the defendant as a registered nurse as its Pindara Private Hospital.  Whilst working the night shift on that date the plaintiff slipped on a wet floor and fell down heavily on her left side.  At the outset of the trial counsel for the defendant indicated that liability was not contested and allegations of contributory negligence were abandoned.  In consequence my only task is to assess the quantum of damages which constitutes appropriate compensation for the injuries sustained in that fall.

The plaintiff was born on 11 October 1953, making her age 40 when injured and 44 at trial.  She is married with 2 children, now aged 14 years and 11 years.

After completing secondary schooling the plaintiff took up nursing as a career and achieved dual certification.  At the time she was injured she was working as a registered nurse on 4 nights (Wednesday to Saturday) per week.  I am satisfied that she was highly regarded as a nurse and that she would have had little difficulty in finding employment in that capacity until age 65.  Working 4 nights per week (Friday and Saturday nights paid more) enabled her to earn sufficient to provide for the family’s needs, but at the same time giving her ample time with her young children.  Prior to April 1994 the plaintiff’s husband had been unsuccessful in business and for a period had not been in regular employment.  At about the time of the accident she was the sole provider for the family, though that would not have been permanent.

In the fall her left arm hit the floor heavily taking most of the weight of her body.  As she fell her arm had moved somewhat behind and away from her body so that it took the brunt of the fall.  She said that apart from her left arm she injured her left hip, outer aspect of her left ankle and right hand; those other injuries resolved quickly and can all but be ignored for present purposes.

According to the plaintiff her left arm went “quite numb” and she experienced “pins and needles”; but she remained on duty for the balance of her shift.  Over the next few days soreness and stiffness in her left shoulder increased to the extent that she spoke to one of the doctors at the hospital about it.  She stopped work on 24 April, and was totally unemployed until 4 August 1995.  Between 24 April and 27 May 1994 she received physiotherapy and injections designed to alleviate pain from a general practitioner.  The first medical assessment recorded in the evidence is that of Dr Gilpin, an orthopaedic surgeon, who first saw her on 27 May.  An x-ray taken on that date revealed no fracture or bony abnormality.  Further, no rotator cuff calcification was seen.  Dr Gilpin noted that she was “somewhat resistant to examination because of pain” and he was “not all that certain after the examination as to the exact nature of the problem”.  He thought the most likely diagnosis was a rotator cuff injury, either partial or complete.  He discussed with the plaintiff the option of surgery in an endeavour to confirm a diagnosis; the other option was to continue with non-operative treatment.

Dr Gilpin performed an arthroscopic assessment of the shoulder on 15 June.  He found she had no acute rotator cuff tear, but “there was significant reaction within the subacromial bursa consistent with impingement here”.  He therefore undertook an arthroscopic acromioplasty.  In a report shortly after the operation he made the observation: “The actual findings at operation did not appear to be as great as I would have expected in view of the level of symptoms suffered by the patient.  There may well be the potential for some secondary gain factors here.”  Physiotherapy was prescribed for a period of some weeks after that surgery.

In his next report (24 August 1994) Dr Gilpin referred to 2 consultations after the surgery.  On 10 August she said that “she was still having severe pain in her shoulder and in addition complained of elbow pain and paraesthesia in the distribution of the ulnar aspect of the hand.”  The doctor’s examination showed marked restriction of shoulder movement; passive movement was unable to be assessed because of discomfort.  There was a complaint of tenderness over the region of the ulnar nerve and the suggestion of decreased sensation in the hand.  He made the notation that the “patient admitted to being depressed”.  Arrangements were made to have her assessed with regard to pain management.  At that time Dr Gilpin concluded his report with the following observations:

“This lady’s case is certainly unusual in the context of the clinical presentation and the extraordinarily poor results at present.  I am at a loss to explain this, although I believe the patient has a very low pain threshold.  Her condition is not steady and stable at this point of time.  I think an assessment of the function and movement in her shoulder under a block will provide some useful information about the level of function the patient really has in her shoulder.”

In his report of 12 January 1995 Dr Gilpin reports upon an examination carried out in approximately November 1994 whilst the plaintiff was under a Brachial Plexus block.  He noted that she then had movement through to 80° flexion and abduction, but there was some suggestion of significant tightness of the capsule at this point in time.  No manipulation was undertaken due to the fact that the patient still had some pain sensation and further movements caused discomfort.

Between November 1994 and 12 January 1995 the plaintiff experienced an incident when she fell into a swimming pool and as recorded by Dr Gilpin “hit her elbow, increasing the pain in her shoulder, and also giving her some ulnar nerve paraesthesia which have now largely resolved”. The plaintiff made some mention of that incident in her oral evidence but she was not as specific as to the increase in shoulder pain recorded by Dr Gilpin.  Ultimately she conceded she bumped her left upper arm, but maintained the more significant injury was to her leg.

In that report of January 1995 Dr Gilpin expressed the opinion that she “either has a frozen shoulder or as I would suspect, a post traumatic stiffness of the shoulder following such surgery”.  He went on in broad terms to indicate that apart from manipulation under anaesthetic there was little further treatment he could recommend.  At that time, and this is noted in his report, he recommended “that she again strongly consider the role of manipulation under anaesthesia and Brachial Plexus blocks”.

Then on 2 May 1995 Dr Gilpin provided a lengthy report to the plaintiff’s solicitors.  The following statement of some significance was contained therein:

“The patient was seen towards the end of 1994 and a recommendation was made for a definite manipulation under anaesthesia to be undertaken.  The patient was last seen in a clinical capacity on 11 January 1995.  At this stage she had decided not to proceed with the outlined management because of the lack of guarantee about an improvement in function, and also the probability that she would be unable to return to work whatever further was undertaken.”

When reviewed on 3 April 1995 for purposes of that report the plaintiff stated that she had made no further improvement in terms of symptoms and did not think it was likely she would ever be going back to work.  She said there was a constant dull ache in and around the front and top of the shoulder, radiating through to the neck, which was present everyday and increased with any sort of general use.  She took pain killers on a daily basis.  She complained of decreased strength in the whole of the upper limb and decreased movement in the shoulder.  Again reference was made to paraesthesia and some numbness in the ulnar aspect of her hand.  The doctor’s examination on that date revealed some scapular and deltoid muscle wasting.  There was marked reduction in movement of the shoulder.  There was some tenderness in the region of the AC joint and rotator cuff.  He also noted a subjective decrease in sensation in the distribution of the ulnar nerve and hand function on the left was generally weak.

At that time Dr Gilpin made a diagnosis of post surgical shoulder stiffness.  He considered the possibility of adhesive capsulitis but rejected it in preference for post surgical stiffness.  He expressed the view that the plaintiff’s condition should settle down over a period of time but he was “more guarded about prospects for return of movement in the shoulder.  I would think it highly likely that whatever course is taken, it is unlikely the plaintiff will be left without disability when the situation finally resolves”.

On an objective assessment the plaintiff had a 40% loss of function in the upper limb on account of the shoulder.  In relation to the manipulation procedure which he had previously recommended Dr Gilpin noted that it usually improved the movement of the shoulder by 50%.  The doctor expressed the following opinions at the conclusion of that report:

“Based on the patient’s current situation or any speculation upon future outcome, even if such surgery is undertaken, I cannot see that the patient will be likely to return to the workforce in her current clinical capacity.  I believe that she may well be able to return to work at some other later date, although probably in a different occupation and as such job retraining would be required.  In my opinion there is likely to be a reduced employment potential because of the patient’s current situation, and this is likely to remain significantly impaired for the foreseeable future. ... I believe the patient did have an injury to the rotator cuff, although not a full thickness rotator cuff tear.  It is likely that she had microscopic tearing within the rotator cuff contributing to her symptoms. ... I cannot really speculate on the sorts of employment for which this lady may be suitably trained, although it is likely that any occupation will be in a non-manual job in which she has ready access to through a public transport system. ... I do not believe the patient will suffer degenerative disease in the joint on account of the injury or surgery.”

Dr Gilpin’s next report is that dated 15 January 1996.  On being reviewed in November 1995 (18 months after injury) the plaintiff stated that “her function had deteriorated further since the time of previous review”, but she had returned to work in a medical practice undertaking 8 hours per week.  On examination the doctor noted that her shoulder movement was “largely unchanged from the examination in May 1995".  On that occasion he noted “some mild weakness in the ulnar innervated muscles and there appeared to be some intrinsic muscle wasting.  The sensation appeared to be slightly altered in the distribution of the ulnar nerve”.  In consequence he made a provisional diagnosis of cubital tunnel syndrome.  He made arrangement for nerve conduction studies to be undertaken and they reported as normal.

At that time Dr Gilpin also recorded that the plaintiff stated she had had acupuncture in the shoulder which had increased her discomfort.

In conclusion in that report the doctor noted that the plaintiff’s shoulder situation remained unchanged;  he still preferred a diagnosis of post surgical shoulder stiffness rather than adhesive capsulitis.

Dr Gilpin has not examined the plaintiff, nor provided any treatment to her, since that time.  During oral evidence Dr Gilpin added little to what is contained in those reports.  He did say that a complaint of chronic pain in such a case is unusual.  Further, he expressed the definite view that the problems the plaintiff complained of with her hand were not related to her shoulder condition.  He was questioned by both counsel about the manipulation procedure which he had earlier recommended.  In his view if that procedure had then been undertaken on average there would have been a significant improvement in shoulder movement, though there may have been no change in the pain situation.  Given the unusual circumstances of this case there was, in his opinion, no direct link between range of movement and complaint of pain.

In about October 1994 the plaintiff requested a second orthopaedic opinion in relation to her shoulder.  Dr D A F Morgan examined her on 19 October.  In his view her condition was “consistent with a diagnosis of adhesive capsulitis”.  He indicated that 2 options were available to the plaintiff; either “let nature take its natural course” and pain would decrease with the passage of time, or “intervene earlier in an effort to short-circuit nature’s course and perform a manipulation of the gleno-humeral articulation under a general anaesthetic with concomitant hydrodilation with local anaesthetic and hydrocortisone”.  In his report to the Workers’ Compensation Board of 23 October 1994 he expressed the opinion that such manipulation may improve her circumstance.  In that report he did note wasting of the muscles around the left shoulder and significant limitation in movement of the left shoulder.

Dr Morgan again examined the plaintiff on 20 April 1998.  An x-ray taken on that date indicated “some small densities adjacent to the acromio-clavicular joint which may be calcification or bony fragments resulting from previous trauma”.  There was no other significant bony abnormality and no typical tendon calcification.  On clinical examination the doctor recorded “restrictions in range of movement referrable to the left shoulder, reduction in power in the left upper limb because of pain, and a reduction in left hand grip strength”.  He noted wasting of the deltoid, supraspinatus and infraspinatus muscle groups.  In the left shoulder there was marked limitation of flexion, abduction, extension, internal rotation, external rotation, and adduction.  The doctor noted that the “ranges of movement were essentially the same as at the time of my examination in October, 1994".  

Dr Morgan expressed the view that the forces on the plaintiffs left shoulder in the fall “may have been sufficient to give rise to some form of strain injury of the supporting structures of the gleno-humeral articulation with the secondary onset of a rotator cuff  tendinitis syndrome”.  By October 1994 Dr Morgan was of the view “she was suffering with an adhesive capsulitis or frozen shoulder syndrome”.  He expressed the view that it was “surprising that her circumstances remain so severe over the intervening 3 years”.  He went on:

“From an orthopaedic perspective, it is difficult to explain all of  her current circumstance in purely physical or mechanical terms.  It is possible that there may be some concomitant psychiatric contribution.

There would appear to be a direct chronological link between her current circumstance and the subject accident.  It is possible to blame at least part of her current condition on an orthopaedic malady, and in that regard part of her circumstance is similarly likely to be of a causally linked type.
...
The measurements recorded in this report would yield an impairment assessment of a loss of some 40% of normal left upper limb function.  It is surprising that such a large functional loss would result from a fall of this nature.  Again, I wonder if there may be some non-orthopaedic contributing factor involved.

The natural history of a rotator cuff tendinitis syndrome with a secondary impingement phenomenon and a complicating adhesive capsulitis syndrome is towards gradual improvement at a clinical level, with some associated reduction in any measurable impairment. I would normally expect to measure a loss of between 5% and 20% of normal left upper limb function in a patient who had been injured in this way and who had undergone a similar operative procedure.

Her current upper limb functional incapacity would preclude her from engaging in anything other than purely sedentary work practices.  It would appear that she can cope with the duties required of her as a registered nurse in a medical practice.  I can see no orthopaedic contra indication to continuance with those duties.

Her inability to engage in outdoor sporting pursuits requiring bimanual activities will be significantly limited. 

In October, 1994 I was of the view that she would have benefited from a manipulation of her shoulder joint under general anaesthetic.  This would have served to break down intra-articular adhesions.  Those adhesions would now be exceedingly mature and it is unlikely that a simple manipulation would be of any great benefit.  Similarly, given the possible co-existence of some form of psychiatric condition, any form of operative intervention is relatively contraindicated.”

During oral evidence Dr Morgan admitted that orthopaedic specialists were about evenly divided as to whether or not the manipulation process he recommended should be carried out when the patient was complaining of pain.  He was of the view that the procedure was reasonable and safe in such circumstances, but conceded the opposite view.  In the course of cross examination Dr Morgan said: “It is unusual - in fact I’ve never seen in my practice that 4 years later somebody would have exactly the same functional loss that they did have 4 years previously”.  He also confirmed that “there may be non-orthopaedic components to her malady, that is to say there may be some psychological or psychiatric component”.  Certainly he could not explain her stated condition “in purely orthopaedic terms”.

The third orthopaedic surgeon to give evidence was Dr P Boys.  He first examined the plaintiff on 21 August 1996.  On that occasion the plaintiff stated that there had been no improvement of shoulder movement since 1994.  On examination Dr Boys noted some wasting of the shoulder muscles and tenderness to palpation over the left shoulder.  He also noted that left shoulder movement was restricted by a pain response; all shoulder movements were accompanied by a significant pain response.  His opinion, expressed in a report made on the date of examination, is to the following effect:

“It is my opinion that this lady’s current presentation is consistent with chronic regional pain syndrome and associated disuse.  Inappropriate clinical signs are evident indicative of a magnified illness behaviour.

Examination of left shoulder movement shows significant restrictions of range of movement with a pain response which restricts full examination of this joint.

I note this lady’s stated mechanism of injury which would be consistent with soft tissue injury to the left shoulder region.  I note subsequent radiological investigation and ultra sound and ultimate arthroscopic examination which does not indicate disruption of the rotator cuff or supporting soft tissues of the left shoulder.  The clinical material available to me would suggest a minor soft tissue injury possibly involving the subacromial bursa and associated surface of the supraspinatus tendon without frank tearing of this structure.

I note a history of deteriorating levels of pain and function of the left shoulder and failure of both conservative and operative treatment of this condition.

It is my opinion that the restrictions of left shoulder movement currently evident reflect an abnormal psychological response producing disuse of the part and secondary capsular contracture to some degree.  Assessment of the true range of movement of this lady’s left shoulder cannot be accomplished in the presence of pain inhibitory behaviour.  Examination under an anaesthetic, preferably a general anaesthetic, would establish a true range of movement of this articulation.  A CT arthrogram could also shed some light on the true nature of any capsular contracture evident.

...

It is apparent that [the plaintiff] has significant perceived levels of disability and accurate quantification of impairment of upper extremity function is difficult in view of her pain response.  If one applies the American Medical Association Guidelines to the range of movement which this lady will permit, a 50% impairment of upper extremity function would be quantified.  It is my opinion, however, that this figure is spurious and I believe that a physical examination in an anaesthetised patient would reveal an impairment, in all likelihood, of less than 20% of the upper extremely.  Such a true impairment reflects, in my opinion, contracture secondary to disuse and the affects of injury and subsequent surgery.  Such an impairment would, in a motivated patient, be considerably reduced by a program of muscle conditioning and stretching.  In the normal course of events, a minor soft tissue injury to the left shoulder, perhaps occurring in the context of the normal age related to generative changes would occur within the rotator cuff tendons of this joint would give rise to an impairment of perhaps 5% or 10% of the upper extremity.

Surgical assessment of this lady’s condition would not be indicated.  Early resolution of  compensation related issues and psychological management in a pain clinic environment would be advised.

I note this lady’s current employment on a part time basis as a registered nurse in a general practice.  I do not believe that she has a physical condition which would preclude full time employment in such a capacity.”

In a subsequent report of 9 April 1998 Dr Boys specifically considered the possibility of cubital tunnel syndrome; in consequence he only considered the left elbow and not the left shoulder.  He concluded that a diagnosis of cubital tunnel syndrome could not be entertained as a separate diagnosis occurring concurrently with the plaintiff’s left shoulder complaint.

Dr Boys also expressed the view that in all the circumstances further physiotherapy treatment would not alleviate the plaintiff’s complaints with her left shoulder.

In oral evidence in answer to questions about the plaintiffs inappropriate responses, Dr Boys gave the following answers:

“Well, this lady presents with significant pain response to formal examination and she has tenderness which is diffuse and not specifically associated with any particular anatomical structure so the tenderness is widespread.  She has pain with all movements of the shoulder, so there is no movement which is painless.  She has a pain response which she states is in the shoulder with movement which is unrelated to the shoulder which is a contraction of the biceps and triceps muscles to move her elbow.  She has a pain response with tendon reflexes which isn’t explainable on a physical basis and she has on neurological examination a stated alteration of light touch sensation which does not conform with any recognised neurological distribution of the upper limb which is stated to involve the chest wall and the entire upper limb. ... Well, she manifests signs of magnified behaviour and it means there is a significant psychogenic component to her presentation which makes physical assessment quite difficult.”

Dr Boys also indicated that because of non-use of the shoulder there may well be a degree of restriction of range of movement which now reflects that fact.

Dr Boys was also asked about the manipulation recommended in 1994.  He said that that would have been offered on the basis of a presumptive diagnosis of adhesive capsulitis. That treatment offered at that time would have had a significant chance of improving movement. He conceded that the treatment was most frequently offered when the shoulder was relatively pain free.

Not surprisingly given those orthopaedic opinions evidence was called from 2 psychiatrists and 1 psychologist.  Dr I L Lynagh, a psychologist, first saw the plaintiff in about February 1995; he counselled her until October 1995.  He saw her again on 28 February 1996 for purposes of a report which is dated 14 March 1996.  I have serious reservations about that report because the author appears to transgress the boundary between psychology and psychiatry; he is not strictly qualified to make a medical diagnosis of psychiatric disorder.  But against that background I record his opinion that the plaintiff “developed a significant Pain Disorder with associated psychological and physical features as sequelae of her occupational injury and her incapacitation for employment as a nursing sister.”  He was of the view that following the “psychological assistance” she obtained through counselling sessions with him “she now shows considerably better adjustment to the pain, to herself personally and in her life style across the board.”  He was of opinion that such psychological counselling should continue for about 12 months following the resolution of litigation. 

There was a conflict of medical opinion between Dr G Apel, the psychiatrist called by the plaintiff, and Dr J G Reddan, the psychiatrist called by the defence.

Dr Apel first saw the plaintiff on 28 August 1996, and reported on her condition on 16 October 1996.  He concluded that she was “reduced to the capacity of working for about 2 afternoons per week with difficulty,”  and was “grossly limited in her capacity in her function at home”.  He made the diagnoses of  “pain disorder associated with a general medical condition” and “depression secondary to this”.  He noted that he had “no evidence to suggest any significant, pre-existing personality vulnerability or set of current circumstances that could make this lady prone to excessive or prolonged decompensation secondary to injury.”  In his view she had become depressed “secondary to ongoing pain, disability and disappointment at non recovery”.  He then said that he felt the plaintiff’s “depressive state warrants psychiatric review.  I would see the prognosis of this as good given her strong premorbid personality strengths, supportive family and generally likeable nature.”

His next report is dated 4 June 1997.  The plaintiff apparently contacted Dr Apel in January 1997 seeking further psychiatric help.  He saw her for treatment purposes in March, April and May 1997.  In his report he said that over the “previous 6 months she related the development of disabling psychiatric symptoms”.  Among the matters she related was “ongoing worries about financial matters as she had essentially been unemployed for almost all of the previous 4 years.  This had coincided with the financial downturn in her husband’s business as an organiser of major theatrical and musical performances, leaving the family in a financially parlous state.”  As a result of his assessment Dr Apel then concluded that the plaintiff  “suffers from major depressive disorder”.  He recommended anti-depressant medication and that resulted in some improvement of her symptoms.  There was a significant improvement in her capacity to “experience pleasure and interest in day to day life”.

In that report Dr Apel also referred to 2 “life events” which impacted upon the plaintiff.  Her son had been “hit by a drunk driver” and received facial lacerations.  In May 1997 her father was diagnosed as having a terminal form of cancer.  On the positive side there had been considerable improvement in her husband’s business situation.  His final opinion as stated in that report can be gleaned from the following passage:

“I feel there is a clear evidence of psychiatric disorder, in that she suffers significant depression, secondary to her ongoing pain and functional disability and that fulfills the criteria for major depressive disorder and this has responded to anti-depressant treatment at an appropriate period after commencement of treatment and an improvement that has persisted, suggesting that this is not a placebo response, but rather a valid response to treatment.”

Dr Apel’s final report is dated 11 May 1998 and based on an examination carried out on 5 May 1998.  He noted that there had been “considerable improvement” since his previous interview with the plaintiff.  He also noted that because of the continuing improvement in her husband’s financial position “much of the financial pressure has been lifted from the family”.  The plaintiff made the decision to cope with her situation without anti-depressant medication and apparently has not been “particularly worse off”.  On examination Dr Apel noted that the plaintiff’s “mood was moderately depressed,  with efforts made to conceal her feelings”.  He concluded that his diagnosis would remain as “pain secondary to a general medical condition” and “dysthymic disorder”.  He was of opinion that “she no longer fulfills the criteria of major depression, but significant depressed moods persist and she would qualify for the diagnosis of dysthymic disorder with depressed mood.”  Whilst her father’s terminal illness and the pending litigation were ongoing stressors, he did not consider that they represented adequate explanation for her ongoing disability. He suggested a causal relationship with her shoulder injury.

During oral evidence Dr Apel reiterated his opinion that there was a causal relationship between the depression and the 1994 shoulder injury.  In his view the increased disability noted by the orthopaedic surgeons was due to depression. In his opinion there was no somatoform pain disorder.  He reiterated his diagnosis of pain disorder secondary to general medical condition, and expressed the view that resolution of the litigation would not help the plaintiff much.

In his second report Dr Apel expressed the opinion the plaintiff would be “unable to return to a career of nursing”, but in his last report he stated: “I would not foresee Ms Shiell ever being able to return to full-time work, but part-time employment would be likely to remain feasible.”  That conclusion would appear to be based on the plaintiff’s complaint of increased pain in the shoulder after a heavy or busy day at work.

Dr Reddan only saw the plaintiff on the one occasion (4 March 1997) for purposes of the report dated 14 March 1997.  As a result of a consultation which lasted for some hours she concluded that there was “no clear evidence of a psychiatric disorder”.  During her oral evidence Dr Reddan maintained that on the occasion of her examination there was “no major depression” and “no clear evidence of pain disorder”.  The resolution of the litigation would, in her view, remove the plaintiff’s focus from her condition and in consequence could result in some improvement.  As I understand Dr Reddan’s evidence a possible explanation for the plaintiff’s condition could be found in emotional reactions falling short of a psychiatric disorder.  Dr Reddan also stated that there was no “reason from the purely psychiatric point of view” why the plaintiff  “could not increase her hours of work” at the medical centre.

The plaintiff, of course, gave evidence.  At the end of the trial I had a number of reservations about her credibility.  As an experienced, qualified nurse she was aware of the implications of questions put to her, and many of her answers appeared to be the calculated response of a person with such knowledge rather than a spontaneous, full and honest answer to the question.  For almost the whole time that she was in the witness box she held her left arm motionless across the region of her abdomen.  I noticed that that posture was maintained for much of the time she was near the bar table whilst others were giving evidence.  Most of the doctors also recorded that during consultations she held her arm in that position.  It is clear from her evidence as to what she does at work that her left arm is much more mobile than she permits it to be when, in her view, the occasion demands.

According to her evidence she still experiences constant, moderate pain in her shoulder extending down into the arm.  She claims that after activity or a bump it becomes severe for a period.  She also refers to changes of colour in the appearance of her left hand. Despite those matters she concedes that she has received no specific treatment for the pain for some years.  She has effectively been discharged by Dr Gilpin.

She maintains that she is moderately depressed.  She says that she stopped taking the anti-depressant medication because she did not like taking any form of medication.

In her evidence she detailed problems with cooking, playing with her children, doing housework, dressing, shopping, and driving a car.  Her major hobbies prior to the incident were knitting, playing tennis, and riding a push bike.  She is now unable to enjoy any of those past times.  She is normally a right handed person and it was put to her that she could do many tasks using that dominant hand.  She agreed, but maintained it took longer.  Over the years her husband has regularly assisted with a lot of the ordinary household chores and a claim under the Griffiths v Kerkemeyer head is made in that regard.  The quantification of time spent by her husband in performing some such tasks was rather vague, but no doubt for a period of time such help was reasonably necessary.  Her husband did not give evidence.

The family owns a manual car, and she has difficulty driving it because she cannot effectively change gears with her left arm.  When she has access to an automatic she can drive reasonably long distances.

In her evidence she confirmed a number of the matters referred to by the psychiatrists in their reports; mention was made of the family’s financial difficulties, her husband’s job situation, the fact that her son was hit by a car, and the fact that her father had a terminal illness.

She now works 2 mornings per week as a nurse for a group of general practitioners, and has been doing so for some time.  She says that she cannot work successive days because of the pain generated during each work shift.  In her view she could not work full time in that capacity.  However, it does appear that she is able to perform a range of nursing tasks whilst at work.

The plaintiff admitted that on 10 February 1994 (that is about 10 weeks before the incident in question) she had another fall whilst at work.  On that occasion she slipped on some urine on the floor and her left side fell against the wall; from there she slipped down to the floor.  She mentioned her left shoulder and hip coming into contact with the wall but claimed that she suffered no injury.  However, it is of some interest that she completed an injury form in which she marked off an injury to her left shoulder.  Certainly there were no immediate significant consequences of that incident, and a positive finding cannot be made that it played a part in causing the reaction to the injuries sustained on 22 April. 

Finally, some reference should be made to the plaintiff’s evidence relating to her declining to undergo the manipulation procedure recommended by Doctors Gilpin and Morgan.  The plaintiff has 2 brothers in Melbourne who are medical specialists, and she frankly conceded that she discussed the desirability of submitting to that procedure with them.  Neither brother gave evidence, but according to the plaintiff each advised her against having the procedure.  She herself says that she was primarily motivated in her decision by the fact that the doctors could not guarantee a return to work following it.  She also referred to a tracheal spasm which she had experienced whilst under a general anaesthetic in February 1993 at a time when a gynaecological procedure was being performed.  It is of some significance that that episode was not discussed with any of the relevant doctors; it appears to have emerged as a major factor for the first time during the trial.

I have set out at some length a summary of the medical evidence because of the conflicting opinions, and because there is a real issue as to the extent to which the plaintiff’s complaints are physical in origin.  It is, in all the circumstances of this case, not possible to make simple findings.  Each of the medical witnesses was clearly giving a considered assessment of the plaintiff’s condition in circumstances where, for a variety of reasons, it was difficult to arrive at a definite diagnosis and prognosis.

Against that background I proceed to assess damages on the following bases.

The plaintiff sustained an injury to her left shoulder on 22 April 1994 which caused damage within the subacromial bursa and possibly involved associated tendons.  From as early as 27 May 1994 the plaintiff was complaining of inappropriate and exaggerated symptoms.  Arthroscopic assessment on 15 June 1994 did not reveal findings consistent with the symptoms  complained of.  From at least that time there was a psychiatric contribution to the plaintiff’s overall position.  Since then the situation has remained much the same; the plaintiff’s complaints cannot be explained in physical or mechanical terms from an orthopaedic point of view.  Because of the direct chronological link between the incident on 22 April 1994 and the development of the plaintiff’s persisting psychological condition they are causally linked.

As the years have past the abnormal psychological response has produced disuse of the left shoulder (causing muscle wasting) and secondary capsular contracture.

Because  the plaintiff’s persisting condition is largely due to psychological factors manipulation of the type suggested by Doctors Gilpin and Morgan in 1995 would not have resulted in any lessening of perceived symptoms.  For that reason it cannot be said that in failing to have that procedure the plaintiff failed to mitigate damages.

I accept the medical opinion to the effect that the problems of which the plaintiff complains with her left hand are not related to her shoulder injury.

From an orthopaedic view the plaintiff is fully capable of working full time as a registered nurse in a medical practice - the type of job she has been performing on a part-time basis for some time.

Nothing in the evidence of J Bertoldi causes me to doubt the accuracy of those findings.

From shortly after the incident on 22 April 1994 the plaintiff has been suffering an abnormal psychological response to the pain and disability initially caused thereby.  However, I am satisfied that for at least 3 years thereafter she was not suffering from any major depressive  psychiatric illness.  Dr Lynagh speaks of the plaintiff experiencing psychological problems in 1995, and when Dr Apel first saw the plaintiff in August 1996 he did not consider that she was suffering from a major depressive illness.  At that time his diagnosis was of “pain disorder associated with a general medical condition” and “depression secondary to this”.  Dr Reddan, when she examined the plaintiff in March 1997, could find no evidence of major depression; I accept her evidence.

The first diagnosis of major depressive illness was made by Dr Apel in his report of 4 June 1997.  In that report he refers to a number of recent matters which impacted on the plaintiff’s then condition.  There were “ongoing worries about financial matters”; the plaintiff herself had been unemployed for a period and there had been a financial downturn in her husband’s business.  Then there had been the incident where her son was “hit by a drunk driver”.  That was followed  in May 1997 by her father being diagnosed as having a terminal form of cancer.  Those matters impacted on her condition and resulted in the diagnosis of major depressive disorder.  It is significant in my view that after limited treatment from Dr Apel she made the “considerable improvement” which is reported in May 1998.  Her present condition is such that she does not need ongoing medication for a psychiatric illness.

The medical evidence establishes that from about the time of the injury there was an abnormal psychological response which could be described as a pain disorder, and which has been ongoing.  For a short period, as a direct result of other factors being added, the plaintiff developed a major depressive illness but that has now resolved; her ongoing problem remains the pain disorder, that is an abnormal psychological response to the pain and discomfort associated with the initial injury.

Dr Apel was of the view that she would be unable to return to a “career of nursing”; I take that to mean she could not return to a responsible hospital nursing role.  Dr Apel did say that part time employment would remain feasible and that clearly relates to her work as a nurse employed by a general medical practice.  I accept the evidence of Dr Reddan that the plaintiff could increase her hours of work in that capacity.

Given that there is no physical (orthopaedic) reason why she could not work full time as a nurse employed by a general medical practice, once there has been some further resolution of her psychological problems she will be able to work full time in that capacity.  Such a resolution will be facilitated by the conclusion of this litigation.

The evidence discloses that the plaintiff ceased work 2 days after the incident, namely on 24 April 1994.  On 4 August 1995 she commenced work with the Parkway Medical Centre and is still employed by that medical practice, working two 4 hour shifts per week.  The evidence indicates that the plaintiff has not been continuously employed by Parkway Medical Centre since 4 August 1995, but does not establish the precise dates when she was not so employed.  Full particulars of her earnings during that period are set out in exhibit 11.  For assessment purposes, acting on the findings stated above, I hold that the plaintiff was totally unemployable from 24 April 1994 to 4 August 1995 (66 weeks); it was not really disputed that her nett earnings as at the date of the accident were $650 per week (on average) and that such figure should be adopted for purposes of assessing economic loss.  For the period to 4 August 1995 her loss was $42,900.  I further hold that from 4 August 1995 the plaintiff had a capacity to earn on a part time basis; that has continued to the date of trial. The evidence is that her current gross earning rate is $17.50 per hour.  Working two 4 hour shifts per week her nett earnings are $125 per week (that figure was not disputed).  That means that for the 114 weeks between 4 August 1995 and date of trial her loss was $525 per week, a total of $59,850.  Total pre-trial economic loss is thus assessed at $102,750.

In calculating interest on past economic loss the amount of $27,928 (nett weekly payments received by way of Workers’ Compensation) should be deducted.  That means interest at 6% per annum for 4 years should be allowed on $74,822, namely $17,958.

The plaintiff’s case was that her future earning  capacity was limited to that which she is currently earning.  On that basis a claim was made for $525 per week over the next 20 years, namely $350,000.  On my findings such a claim cannot be maintained.  Given the medical evidence and my findings it is reasonable to allow a further period until 1 July 1999 during which the plaintiff will only be able to earn on a part-time basis; thereafter she will have an earning capacity such that she could work full time in a medical practice.  During the next 52 weeks she will incur a loss of $525 per week - her present loss.  That amounts to $27,300.  Thereafter her future economic loss should be calculated on the basis that she can work 40 hours per week as a nurse in a medical centre.  That would mean (in broad terms) a loss of $200 nett per week from the amount she could earn as a registered nurse working night shift in a hospital, and she should be allowed that over a period of 20 years.  Such a calculation takes account of the normal discounting factors.  $133,200 should be allowed for future economic loss from 1.7.1999.  Total future economic loss is thus assessed at $160,500.

Given the findings stated above as to the nature of the injury sustained by the plaintiff it was, from the physical point of view, not a serious one.  But the plaintiff has, for some years, experienced significant pain and discomfort because of the psychological disorder from which she has been suffering.  The pain and disability will, on my findings, abate with a period of time and with an adjustment by her to her changed circumstances.  The plaintiff’s situation is to be distinguished from that of a person who has suffered a significant permanent physical injury to the left upper arm.  In all the circumstances I assess damages for pain and suffering and loss of amenities in the sum of $45,000.  Interest at 2% per annum for a period of 4 years should be allowed on $25,000 of that amount less the $8,721 lump sum payment received as Workers’ Compensation; I allow interest in the sum of $1,300.

Special damages (including hospital and medical expenses paid by Workers’ Compensation in the sum of $6,307.89) were detailed in exhibit 14; the total comes to $9,639.82. That claim was not specifically challenged by the defence and it should be allowed in full.

The Fox v Wood factor established by the letter from the Workers’ Compensation Board is the sum of $6,120.10.  Again it was not disputed, and should be allowed.

Under the Griffiths v Kerkemeyer heading a total of $27,221.00 was claimed for past services rendered by the plaintiff’s husband.  I accept an entitlement to 178_ hours driving time as per the schedule to exhibit 14.  I also accept that for a period after the incident, and particularly surrounding the operation on 15 June 1994, the plaintiff would have needed some assistance with showering and dressing; during that period she would also have been significantly incapacitated so far as preparation of  meals for the family were concerned.  Further, there would have been a significant limitation on the range of household duties she could have performed from the date of the incident at least until August 1995.  Thereafter her capacity to perform household chores would have gradually increased.  The evidence does not satisfy me that from about August 1995 to date of trial her husband has had to perform 6 hours per week of household duties which under ordinary circumstances the plaintiff  herself would have undertaken.  From time to time during that period the husband may well have had to perform some tasks but the amount claimed in exhibit 13 is not made out on the evidence.  The defence accepted $11.25 per hour as the relevant rate to use in calculating the cost of past care.  Once it is accepted that the times specified in exhibit 13 are not established by the evidence it becomes difficult to substitute an alternative; but in the circumstances a reasonable assessment should be made in the light of all the evidence.  In broad terms I am prepared to allow the driving time, approximately 2 hours per day until July 1994 for showering, dressing and preparation of meals, 1 hour per day for housework until August 1995, and 4 hours per week for housework from August 1995 to date of trial.  In the circumstances I allow $14,750.00 under this head.

I allow interest on past care at the rate of 2% per annum for a period of 4 years, a total of $1,180.00.

It was agreed that the cost of any future care should be at the rate $12.00  per hour.  Given the findings stated above, future care will only be required for a period of 1 year into the future.  I will allow a claim on the basis of 4 hours per week for that period.  I allow $2,496.00 as the cost of future care.

A claim was made for future pharmaceutical expenses extending over a 25 year period at the rate of $1.79 per week.  Given the findings outlined above the plaintiff will not require that level of medication over a period of 25 years in consequence of the relevant injury.  She may well require some further medication prescribed by Dr Apel over the next 12 months but within the foreseeable future her need for medication should cease.  It is not possible to make a precise calculation of the cost of future pharmaceuticals but the sum of $500.00 would more than adequately compensate the plaintiff under that head.

A claim of $2,500.00 was made for possible future medical, surgical and psychiatric expenses.  The medical evidence does not establish any basis for a claim for future surgical expenses.  Over the next 12 months the plaintiff may incur some expenses in receiving psychiatric and psychological counselling enabling her to finally overcome her present problem.  Again the evidence does not allow a precise calculation of any such expense, but it is reasonable in the circumstances to allow $500.00.

A claim for $800.00, including replacements, was made for aids and equipment specified by the occupational therapist Bertoldi in her reports.  However, the plaintiff said nothing with respect to those matters in her evidence; she has not used any of those aids to date although many are quite cheap to purchase.  There is nothing to suggest that she would use any of those items in the future.  On the evidence that claim is rejected.

Finally, a claim was made for $34,100.00 for loss of occupational superannuation.  That was clearly predicated on the plaintiff having, contrary to my findings, a very limited earning capacity over the next 20 years.  The evidence does not permit a calculation to be made of any loss under that head given the finding that the plaintiff has an earning capacity as a nurse in a medical practice from July 1999. 

My award can be summarised as follows:

1. Pain and suffering and loss of amenities  $ 45,000.00

(ii)Interest thereon  $    1,300.00

1. Past economic loss  $102,750.00

2. Interest thereon  $  17,978.00

(v)Future economic loss  $160,500.00

1. Special damages  $    9,639.82

2. Fox v Wood factor  $    6,120.10

3. Past Griffith v Kerkemeyer  $  14,750.00

4. Interest thereon  $    1,180.00

5. Future  Griffith v Kerkemeyer  $    2,496.00

6. Future pharmaceuticals  $      500.00

7. Future medical treatment  $      500.00

   $362,713.92

   From that has to be deducted the amount of $49,077.11 refundable to the Workers’ Compensation Board, leaving a nett figure of $313,636.81.

   There will therefore be judgment for the plaintiff for $313,636.81.