Sitters v Transport Accident Commission
[2018] VCC 2111
•18 December 2018
| IN THE COUNTY COURT OF VICTORIA AT SHEPPARTON COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-00244
| KERRI LOUISE SITTERS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 26 November 2018 | |
DATE OF JUDGMENT: | 18 December 2018 | |
CASE MAY BE CITED AS: | Sitters v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2111 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – impairment to the right upper limb – range case
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards & Anor v Wylie (2001) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Richter v Driscoll [2016] VSCA 142; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Hayes v Victorian WorkCover Authority [2017] VCC 867; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 18; Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167; Sabo v George Weston Foods (2009) VSCA 242
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti QC with Mr R N Morrow | Arnold Dallas McPherson |
| For the Defendant | Mr W R Middleton QC with Mr S D Martin | Transport Accident Commission |
HER HONOUR:
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 17 February 2010 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3
The definition of “serious injury” relied upon by the plaintiff is under
s93(17)(a) – “a serious long term impairment or loss of a body function”.
4 The body function pursuant to subparagraph (a) relied upon by the plaintiff is the right upper limb.
5 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.[1]
[1]Richards & Anor v Wylie (2000) 1 VR 79
7 In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as “at least very considerable and more that significant or marked”.[2]
[2]See Humphries & Anor v Poljak [1992] 2 VR 129 at 140-1
8 The plaintiff swore three affidavits and was cross-examined. Both parties relied on medical reports and other material that was tendered. I have read all the tendered material.
The Plaintiff’s evidence
9 The plaintiff is presently aged fifty-three, having been born in September 1965. She is right-hand dominant. She lives with her partner, Ivor.
10 From the age of fourteen, the plaintiff went to Graham Street Special School in Shepparton. The plaintiff attended this school for the disabled as she was not able to perform the standards required of ordinary schoolwork. A number of her family members also have a learning disability. She has been on a Disability Support Pension since she was sixteen.[3]
[3]Transcript (“T”) 16
11 The plaintiff’s reading ability is very limited and sometimes if she is talking to her mother on the phone she has to spell the word out to her because she does not know what the word is. She can write, but her spelling is very bad, and her arithmetic is hopeless. She relies on a calculator, or sometimes uses her fingers. She has very basic computer knowledge. She can send an email, but has difficulty with internet banking.
12 From the late 1990s, the plaintiff worked full time for about eight or nine years in the laundry at a retirement village in Kerang. She also distributed meals and collected dirty dishes and laundry. In 2007, she left Kerang and moved to Shepparton.
13 In 2008, the plaintiff commenced work at the Tarcoola Retirement Village (“Tarcoola”). As at the said date, she was working there as a part-time cleaner and kitchenhand. She also worked in the laundry.
14 The plaintiff agreed, by the said date, she had been at Tarcoola about three or four months.[4]
[4]T21- this was clearly incorrect
15 As of 1 September 2017, when the plaintiff swore her first affidavit, she was still in that job. Her hours varied. She might have worked up to thirty-three hours per fortnight. She was paid $21.56 per hour, plus allowances, and she also received the pension.
16 On the said date, the plaintiff was riding her battery-operated bicycle in the bike lane in Fryers Street, Shepparton when a car door suddenly opened onto her, causing her to fall off the bike onto her right side, hurting her right arm (“the accident”).
17 An ambulance attended and took the plaintiff to Emergency at the Goulburn Valley Hospital in Shepparton. Investigations revealed a mildly displaced fracture of the right humerus and a displaced olecranon fracture. The plaintiff was treated in a sling and she was sent home.[5]
[5]Mr Griffith’s history on examination in October 2018
18 On 5 June 2010, Mr Ian Critchley, orthopaedic surgeon, operated on plaintiff’s right arm. The plaintiff agreed, when she saw Mr Critchley in August that year, after the operation, she was doing extremely well, as he reported. She was back to doing all her normal duties in October 2010, as he noted following a later examination.[6]
[6]T17
19 Following the accident, the plaintiff had her arm in a sling for about six months, with her arm constantly bent. After the removal of the sling, she could not sleep properly, and for about a year, she had to sleep on the couch with a boomerang pillow so she could get comfortable. She could not get comfortable on a bed and she was constantly restless.
20 The plaintiff thought she returned to work at Tarcoola maybe less than six months after the injury. She thought she worked three hours a day on one day for the first week. She got back to setting tables and collecting dirty dishes but did “no cleaning or anything …”.[7] She could not remember when she got back to her pre-accident hours.
[7]T19
21 The plaintiff could not say how many hours a week she worked before the accident – “It just more so depended on how many hours [she] picked up with work and that as well.”[8]
[8]T20
22 The plaintiff agreed that some fortnights she would work forty-six hours, it just depended on how much work or how short they were. Some fortnights she may have been doing fifty-two hours. “Regular” was thirty-six-and-a-half hours a fortnight.[9]
[9]T21
23 The plaintiff reported her earnings every fortnight to DSS and before and after the accident. DSS always adjusted her pension if she did a lot of hours.
24 Working at Tarcoola up until November this year, the plaintiff was setting tables, clearing tables, washing dishes, preparing breakfast, cooking porridge and putting the condiments out. Sometimes she served breakfast to the residents and collected dirty dishes, set tables for lunch, helped serve the lunch and sometimes cleaned up the dishes after lunch.[10]
[10]T22
25 The plaintiff’s work duties rotated from week to week. Sometimes she was doing laundry and had to clean the residents’ rooms. If she did not do cleaning, she did housekeeping, washing dishes, washing or vacuuming floors.[11]
[11]T22
26 The plaintiff used to do the late shift quite a bit. There was one stage right up to perhaps the last three or four years, she used to do only thirty-two hours a fortnight, doing the four to seven shift of a night time, setting tables and collecting dirty dishes. Once, right on Christmas time, a lot of staff were on holidays and the plaintiff was doing up to fifty to sixty-five hours a fortnight before the accident. The least amount of hours would have been about thirty-two.[12]
[12]T23
27 As of September 2017,[13] the plaintiff continued to suffer pain in her right elbow. The pain was activity related and located around the elbow. If she straightened her arm to reach, it hurt, and she preferred to keep it bent. Cold weather made the pain worse.
[13]First affidavit
28 The plaintiff was then taking Nurofen when she had bad pain, but most of the time put up with it.
29 It is years since the accident. The plaintiff has done physiotherapy or hydrotherapy. She agreed, in July last year, she was taking infrequent painkillers. She was taking Nurofen twice a day every four hours. She used to take them in the morning, at night and later on. Six tablets a day altogether.[14]
[14]T27
30 The plaintiff’s elbow injury had changed how she slept, and she had the habit of having her right arm bent when in bed.
31 The plaintiff continued to ride her electric bike and when riding, usually wore a heavy jacket, otherwise cold air aggravated her elbow pain.
32 The plaintiff’s elbow stopped her from lifting heavy things such as heavy laundry baskets. If she had to carry heavy groceries, she usually used her left arm. It would then become tired, so she used her right arm, but only for a short period of time.
33 The plaintiff’s elbow injury could then interfere with her work. When she mopped at work, her elbow would start to hurt, particularly if she had to do the dining room, as it was a large area. One night, she could not carry the heavy pot of soup to the bench where they were serving it because it was too heavy, and she had to ask for help. People were good to her at work and helped her when she asked.
34 The plaintiff only had to cook soup if she was doing a 10.30am to 6.30pm shift. She did not have the capability of doing that task properly because she had never been shown how to do it. She could not pick up the pot of soup because it was too heavy and she was afraid of dropping it and getting burnt.[15] She was not able to pick up the pot of soup because it was too heavy and she was afraid of dropping it and getting burnt. Some days, she was off sick because she had too much pain in her arm.[16]
[15]T22
[16]T37
35 The plaintiff had difficulty with spring cleaning and changing the curtains in the residents’ room.[17]
[17]T29-30
36 Sometimes Ivor became frustrated with the plaintiff because she could not cuddle him at night like she used to pre-accident. That was because she could not have her right arm straight or in a reaching position for too long because it caused pain.
37 The plaintiff had then not had treatment recently because she did not know if it would help or not. The pain was her biggest problem, and she just put up with it.
38 As at 31 August 2018,[18] the plaintiff continued to work at Tarcoola on a part-time roster with various hours associated with rotation. Her work required her to carry out relatively light activities such as setting and clearing tables, washing dishes, preparing breakfast, cooking porridge, putting condiments out and sometimes serving breakfast to residents. She also collected dirty dishes and set tables for lunch and sometimes helped serve lunch and cleaned up the dishes.
[18]Second affidavit
39 The plaintiff continued to suffer from pain in the right biceps, where she had surgery with nuts, bolts and screws. There was also some mild surgical scarring.
40 The plaintiff’s pain was constant and worse in cold weather, and with the use of her right arm, especially overhead activity or with lifting, her pain increased substantially.
41 The plaintiff’s pain is now worse in her elbow than her shoulder, standing in the witness box.[19] She demonstrated her pain ran from the elbow joint up to the inner bicep, way up the shoulder. She does not have pain in any other part of her shoulder. That pain gets really bad.[20]
[19]T26
[20]T37
42 The plaintiff did not do the heavier jobs after the accident. She just did the 4.00pm to 7.00pm, setting tables and doing the laundry. She was only putting clothes in the dryer. She did not have to hang them out.[21]
[21]T38
43 At work, the plaintiff tried to increase her hours to work 10.30am to 6.30pm shifts, but could not continue because that shift involved lifting, especially large heavy containers of soup, which she could not carry because of her pain. The pain was in her inner biceps and extended to below her elbow. At times, it was very severe and could last for a whole day.
44 The plaintiff takes Nurofen and it eases the pain a little, but when it wore off and the pain returned, she took more. She was taking Nurofen almost every day. Her symptoms and pain had deteriorated over the last year.
45 The plaintiff buys Nurofen regularly at various chemists around Shepparton. At present, a packet lasts about ten days, on occasions, fourteen. She purchased boxes of twenty-four tablets.
46 The plaintiff now takes Nurofen in the morning, lunchtime and night time.[22] She sometimes also takes Panadol. Sometimes, if she is really bad, she will take Endone, but she has got to be really bad before she takes too many tablets because she does not really like taking tablets anyway. She last took Endone last week. She got it from Dr John Guymer, her general practitioner, “but a lot of times we … have got a lot of Endone at home anyway … because Ivor takes a lot of Endone”.[23]
[22]T31
[23]T32
47 The doctors the plaintiff has always seen are at the Maude Street Clinic.[24]
[24]T33
48 The plaintiff does not buy Nurofen only at chemists, she also buys them at the supermarket. Boxes have twenty-four tablets. She was unable to explain how, with this number of tablets, she was taking six a day. She stated “I don’t know my calculations properly … – and that. Sometimes I have more in … the house than what I normally supposed to. … I don’t add up properly or subtract properly … or whatever.”[25]
[25]T35
49 The plaintiff stated that she “just won’t take tablets unless I really have to. … Because, sometimes you … are getting … that much pain you can’t do anything else anymore and you’ve got to take them”.[26] When she buys a packet of Nurofen, sometimes she buys one, sometimes she buys two, it just depends on how many were actually in the house altogether.[27]
[26]T38
[27]T39
50 The plaintiff continues to be unable to sleep with her arm in a straight position and had to keep it bent. It became painful if her arm was straight out, but it did not feel right when in that position.
51 As of August 2018, the plaintiff’s sleep continued to be disturbed because of arm pain, which woke her regularly, and she had to get up and take Nurofen. Sometimes she could not get back to sleep and she tried to do some housework for a little while until she became tired, or sometimes, when she woke up because of the pain, she lay on the couch.
52 Due to her arm injury, the plaintiff could not lift heavy items or hang curtains properly, because when her arm was elevated, the pain increased.
53 When asked in cross-examination about the variation in her range of movement on different occasions, particularly the examination with Mr Griffiths, where he described her restriction as mild, the plaintiff said “he just wrote down whatever he wrote down on a piece of paper but I don’t know what he was writing down on the piece of paper”. She did not really know whether she had a mild restriction on that occasion.[28]
[28]T34
54 There were also gardening activities the plaintiff could not perform at height without aggravating her symptoms, such as trimming trees and hedges. She had the same difficulty using big branch cutters, which caused pain to the extent she had to stop.
55 The plaintiff also found pushing the lawn mower difficult and painful, and mostly Ivor started the mower for her. She could not use the Whipper-Snipper or a handsaw for cutting branches until they moved house a year or so ago. She also could not hang doonas on the line, because they were too heavy. Ivor did that for her.
56 The plaintiff explained her limitations with housework and the fact that she could not do unrestricted pruning of trees and hedges. She could prune trees and hedges, but only “to her ability”. If she can do it, she will, but if she cannot, she will not. She confirmed she had difficulty using the big branch cutters and found pushing the lawn mower difficult. She cannot use a Whipper-Snipper and her partner does.[29]
[29]T35
57 The plaintiff had difficulty at work with the vacuum cleaner, especially using it for extended periods. She would then have to stop and do something else for a while before returning to that task.
58 The plaintiff continued to have baths, with the water as hot as she could stand, associated with Epsom salts. She had these baths almost every night and found they helped relieve the pain. She generally stayed in the bath for ten to fifteen minutes.
59 The plaintiff did not have a driver’s licence and usually went to work on her electric bike, or walked. Sometimes Ivor took her.
60 The plaintiff would like to be working more, but was not able to do so because of the ongoing restrictions and impairment associated with her injury. She would like to be earning more money, but could not do so because of her restrictions in employment, which she believed would continue indefinitely.
61 The plaintiff swore a third affidavit on 22 November 2018.
62 The plaintiff is now no longer employed. Having started at Tarcoola in March 2008, on 7 November this year, her employment was terminated.
63 While the plaintiff is looking for work, she believes her prospects of employment in the future are extremely low, given her intellectual impairment, combined with her arm injury and the limitations that places on her.
64 Tarcoola moved to a new building on 1 November, which was two storeys, and the number of residents increased from 57 to 120. Following the move, the plaintiff continued to work part time, but the hours in the new building would have been slightly greater than in the previous building where she worked.
65 In the days the plaintiff worked at the new premises, she did relatively light tasks such as dishes and some work in the laundry. She worked upstairs and downstairs. She had great difficulty coping with putting residents’ clothes away properly because she did not know which resident was in which room. The system was very difficult for her to understand as she had to read a piece of paper and then work out which room the resident was in and whether they were upstairs or downstairs. By the time she found the resident’s room number on the bin, it had taken too long to do the job.[30]
[30]T29-30
66 Further, other new work processes were difficult for the plaintiff as she did not know where everything was to do her job, an example being in relation to any cleaning. Other staff members were complaining the plaintiff was not getting the job done in time.
67 The plaintiff also had difficulty manoeuvring a large trolley upon which was situated the boxes for the laundry on both sides of the trolley, thirty on each side. She had difficulty comprehending what she had to do. The trolley had sixty room numbers and, for example if a resident was in room twenty-four, there was a room twenty-four at ground level and also on the first floor.
68 The plaintiff was having difficulty coping with the 57 residents, but within two weeks from when she started at the building, more residents would be coming from other facilities to make up numbers to 120. She would have had great difficulty coping with the pressure of such numbers.
69 The plaintiff’s employment was terminated on 7 November 2018 at a meeting with two members of the supervisory staff. She was told she was too slow. The meeting was very one-sided and unfair, and the only person with the plaintiff was Ivor.
70 Further, it was alleged that the plaintiff played a joke on another staff member. She was told she was too slow in her work adapting to the new premises, in addition to the petty joke which she played.
71 The plaintiff agreed she played the joke and explained that it was something she did when she was trying to put her child off smoking.[31]
[31]T24 and T25
72 It was Tarcoola’s excuse to get rid of her after ten-and-a-half years because of her slowness in understanding and grasping new duties.
73 When the plaintiff went home after the meeting, she received a telephone call to say she was sacked. Tarcoola did not give her a reference, and in the Centrelink Certificate, it alleged she was sacked for misconduct. The plaintiff regarded that as untrue and wrong.
74 The plaintiff could not answer whether she would have continued in her work had her employment not been terminated.[32] She agreed she did not stop work because of anything to do with her injury and she was sacked for misconduct.[33] She did not really know if there was going to be a wrongful dismissal claim on her behalf.[34]
[32]T26
[33]T26
[34]T36
75 The plaintiff is now unemployed and has no skills to offer an employer other than her ability to perform the simplest of tasks, which she performed with Tarcoola for ten-and-a-half years until being dismissed. She worked in that job from thirty-six to forty-three hours a fortnight.
76 The plaintiff will likely remain unemployed and unemployable for the rest of her life because she cannot perform duties, other than light ones, due to the impairment, restrictions and symptoms in her arm.
77 The plaintiff has described her symptoms in her previous affidavits and when she saw an orthopaedic surgeon for the defendant recently. She has been told that he confirmed, in his opinion, the extent of her disability impairment and symptoms.
78 In the circumstances, the plaintiff does not understand why the defendant has denied her application. She believes she will lose income indefinitely because of the restrictions placed upon her, prohibiting her from returning to any employment.
Treaters
79 Notes from the Wyndham House Clinic in Shepparton set out:
·11 June 2010. Had ORIF of her right arm and elbow fractures about a week ago.
·23 June 2010. Sutures removed from the right elbow and arm, still complaining of pain and stiffness in the elbow, Panadeine Forte added.
·5 August 2010. Unfit for work for four weeks.
·21 October 2010. Feeling better in terms of her right elbow. Fit to resume normal duties from 5 October 2010 (certificate on that day).
·21 November 2010. Needs access to gym facilities and hydrotherapy to facilitate recovery from motor vehicle accident, where she sustained injury to her right upper arm.
·12 June 2014. … right olecranon pain only worse at night time, right elbow non tender/swelling, good ROM. Management with right elbow x-ray and analgesia.
·19 June 2014. View of x-ray normal, no new fracture. Discussed possible tendinopathy and the pain management.
·30 September 2014. Other issues. Pain at the right elbow, tender at the lateral epicondyle, refer for ultrasound for the right elbow.
·9 October 2014. Discussion about the recent ultrasound. Currently for conservative management, including exercise analgesia splint.
·23 October 2014. History, review elbow pain – still sore – affecting work. Actions were noted as diagnostic imaging requested: right elbow USS steroid injection.
·6 November 2014. Work – can cope with at the moment, pain of the elbow – is improving.
·19 April 2016. History – having pain in the right arm, being doing extra working – washing, unable to do the work today – needs MC.
Mr Ian Critchley, orthopaedic surgeon
80 Mr Critchley undertook a humeral nail and wiring of the plaintiff’s olecranon (“the surgery”) following the accident.
81 Mr Critchley reviewed the plaintiff on 25 August 2010, twelve weeks after the surgery.
82 On examination, the plaintiff’s elbow lacked extension by 25 degrees, but her shoulder was doing extremely well and her wounds were well healed.
83 Mr Critchley noted review of previous x-rays showed all is going well with the plaintiff’s fractures and she is really doing remarkably well considering the nature of her injuries.
84 Mr Critchley saw the plaintiff again on 25 October 2010, four months after the surgery.
85 Following that examination, Mr Critchley reported to the plaintiff’s general practitioner, Dr Narasimhaiah, that the plaintiff had had an excellent result. She lacked less than 10 degrees of elbow extension compared to the opposite side, and was back at work and doing all of her normal activities.
86 Mr Critchley advised new x-rays obtained that day showed the plaintiff’s fractures were soundly united. He thought she could return to work now on normal duties and had not arranged to see her again, but would gladly do so.
Medico-legal evidence
Associate Professor Bruce Love, consultant orthopaedic surgeon
87 Associate Professor Love examined the plaintiff on 21 July 2017.
88 Professor Love noted the plaintiff’s accident injuries were those of a fracture of the right humerus and of the right olecranon, followed by surgery. The right humerus was treated by way of an intramedullary rod, and the fracture of the olecranon was treated by way of a tension band plate.
89 The plaintiff had had only one operation and no further operations were planned. She felt she had made progress since the injury by way of engaging in physiotherapy and hydrotherapy and now infrequently will take a painkiller for pain relief.
90 The plaintiff told Professor Love that her right elbow will sometimes be aggravated in the colder weather, but generally, she is comfortable and has returned to her usual cleaning duties, although she does not do the heaviest of tasks. She has also returned to bike riding to work.
91 On examination, right shoulder flexion reached to 130 degrees, extension 30 degrees, abduction 140 degrees, adduction 40 degrees, external rotation 80 degrees and internal rotation 90 degrees.
92 The right elbow moved from zero to 160 degrees of flexion. Pronation and supination was unrestricted. There was a scar present over the posterior aspect.
93 Professor Love could not detect any abnormal neurological signs in terms of reflexes, power or sensation in the right upper limb.
94 Professor Love had available investigative x-rays that showed the intramedullary rod, cross screws stabilising a mildly reduced original mid-shaft transverse humeral fracture. In addition, there was a tension band wiring and plate present over the right olecranon, stabilising the previous comminuted fracture.
95 Professor Love thought the plaintiff had made a very good recovery from the two injuries she had suffered and had been left with negligible long-term impairment. He thought those injuries could be classified as a mildly displaced fracture of the mid-shaft of the right humerus, now healed, and a comminuted mildly displaced fracture of the right olecranon, now healed, with both fractures having been treated surgically.
96 Professor Love thought the plaintiff’s prognosis was such that the current situation was unlikely to change in the foreseeable future and thought her condition could be considered stabilised.
97 In Professor Love’s view, the plaintiff has a minimal impairment and has not reached the 5 per cent threshold.
The Defendants medico-legal evidence
98 Mr John Griffiths, orthopaedic surgeon, examined the plaintiff on 8 October 2018.
99 Mr Griffiths noted the accident circumstances and the plaintiff’s subsequent treatment. As at the said date, she was working at the Shepparton retirement village as a cleaner and also doing food services.
100 The plaintiff returned to work six months after the accident doing light duties and then progressed to full duties, working both as a cleaner and in the kitchen. She returned to bike riding about eight months after the injury.
101 On examination, the plaintiff did not complain of any pain in the region of the right shoulder. The shoulder felt weak and there was mild restriction in range of movement. There were problems doing overhead activities, such a dusting high ledges and also putting the washing on the clothesline. She had difficulty hanging curtains and could not lift heavy weights with her right arm.
102 On examination, there was pain over the anterior aspect of the right elbow and lower arm in the region of the distal cross screws inserted into the right humeral nail. The pain in the lower arm and elbow was worse in cold weather and was not tender to touch. There was an icy feeling in the scar, but it was not tethered, and the underlying fixation screws could not be palpated. There was a feeling of slight stiffness in the right elbow and the plaintiff felt she could carry heavier weights with the left arm compared to the right.
103 The plaintiff had some problems dressing, particularly undoing her bra. There were no problems with showering or toileting, but there was some restriction with housework, particularly activities involving working with the arm in an overhead position. She could stand and sit for long periods without any problems. She started riding a motorised bike about eight months after the injury.
104 Mr Griffiths noted the plaintiff took an antidepressant, which was prescribed recently, and she also had medications for depression in the past. She took Nurofen intermittently and also occasional Panadol.
105 The plaintiff’s shoulder scars were not tender or tethered and sensation was normal. There was no significant wasting around the right shoulder girdle.
106 Mr Griffiths noted the right elbow scarring, and that scars over the anterior aspect of the distal humerus were itchy at times and occasionally required treatment with moisturising cream. There was no tethering or altered sensation over the posterior scars of the right elbow. The range of motion was zero to 140 degrees and full extension was possible to both elbows.
107 Range of motion of the right shoulder was flexion 130 degrees, extension 40 degrees, abduction 130 degrees, adduction 30 degrees, external rotation 90 degrees and internal rotation 40 degrees. There was no wasting or weakness of the right arm or forearm, and neurological examination of the upper limbs was normal.
108 Mr Griffiths noted the x-rays of the right shoulder and elbow on 15 July 2010 showing the internal fixation of the fractures.
109 Mr Griffiths thought there was a mildly displaced fracture to the mid shaft of the right humerus and a displaced fracture to the right olecranon process of the ulnar.
110 In Mr Griffiths’ view, these fractures had united in a satisfactory position, with good function in the right shoulder and elbow. There was residual stiffness of the right shoulder and mild symptoms related to the scars over the anterior aspect of the distal humerus.
111 Mr Griffiths thought the injuries to the right shoulder and elbow were a direct result of the accident and were continuing to affect the plaintiff’s current presentation.
112 Mr Griffiths disagreed with Professor Love’s statement. He thought the plaintiff has significant restriction in the range of motion of the right shoulder, which causes a degree of long-term impairment. The right elbow joint function is very good and he did not believe that there was any major impairment of the right elbow apart from mild symptoms affecting the scars over the anterior aspect of the right elbow.
113 Mr Griffiths noted the plaintiff was currently working forty-six hours a week in a long-term job which involved duties as both a cleaner and kitchenhand. She was mildly restricted with some of the heavier duties she had to do, and could not lift heavy weights or use her right arm in an overhead position. He thought her right shoulder stiffness was affecting her ability to perform certain activities required as part of her work.
114 Mr Griffiths noted the plaintiff has some difficulty dressing and undressing and also performing heavy housework, particularly cleaning or putting up curtains with her right arm raised above her shoulder. She was able to ride a bike and do recreational activity.
Overview
115 There is no dispute the plaintiff suffered two fractures in the accident that have been surgically treated.
116 There is no suggestion of any pre-existing right shoulder or elbow problem or that the plaintiff’s condition is not substantially organically based. The issue is one of range.[35]
[35]T1
117 Counsel for the plaintiff submitted the plaintiff has ongoing symptoms and restrictions, despite having worked for years since the accident. It was submitted she was a stoic who now is unemployed and would have little chance obtaining work on the open labour market with a significant right upper limb condition and her intellectual disability.[36]
[36]T13
118 Counsel for the defendant submitted that the Court would not be satisfied this is a case that meets the test based upon what the plaintiff has said she can do and what she has in fact done since the injury in June 2010 and, in particular, her return to work.[37]
[37]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [47]; Sabo v George Weston Foods (2009) VSCA 242 at paragraph [71]
119 Further, it was submitted there was a disconnect between some parts of the affidavits and what has been reported to the two medical experts.[38] While “at first blush there seems to be discord between the medico-legal examiners, they are speaking the same language”.[39]
[38]T39
[39]T40
Credit
120 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[40]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[40](2010) 31 VR 1 at paragraph [12]
121 Counsel for the plaintiff submitted one of the great advantages in a common law court is the ability of the judge to have the witness before them to make an independent assessment of their evidence. Of course, here, it was submitted the plaintiff was “a person behind the eight ball”. It might be considered she was giving her evidence to the best she possibly could, given her situation.[41]
[41]T47
122 As counsel pointed out, the plaintiff’s credibility had not really been challenged, and it would be impossible to do so. Her answers were slow, sure and in some detail, and at times she gave quite a specific response to the question.[42]
[42]T47
123 Clearly, there were no issues as to the plaintiff’s credit. I found her to be an unsophisticated, honest witness who did not exaggerate the extent of her pain and disability. If anything, in my view, she understated these factors.
124 Further, the plaintiff answered “yes” to most questions when it was clear she did not understand some questions, particularly those relating to medical issues.[43] She agreed her intake of Nurofen was “intermittent” when she is taking six tablets per day. Further, she agreed that she had been working for Tarcoola for four-and-a-half months when the accident happened, when she had in fact been there for nearly two years.[44]
[43]T18
[44]T21
125 As counsel for the plaintiff submitted, obtaining an accurate history from the plaintiff would be no easy task for a medico-legal doctor.[45]
[45]T49
Pain
126 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[46]
“The evidentiary basis of the pain assessment will ordinarily comprise the following: what the plaintiff says about the pain (both in court and to doctors).”
[46](ibid) at paragraph [11]
127 The plaintiff continues to suffer from pain of the right biceps, where she had surgery, with hardware inserted. Her pain is constant and worse in cold weather. It increases with the use of her right arm, especially overhead activity or with lifting, the pain increases substantially. Sometimes, the pain gets really bad.[47]
[47]T37
128 Currently, the plaintiff’s elbow pain is worse than her shoulder pain, with the plaintiff demonstrating in the witness box that her pain goes from the elbow joint up to the inner bicep to the shoulder.[48]
[48]T26
129 The plaintiff described the site of her pain to Mr Griffiths in similar terms, but somewhat understated the severity thereof, describing also a feeling of stiffness in the right elbow and some weakness in the shoulder.
130 Professor Love reported the plaintiff told him she had no shoulder pain, her right elbow will sometimes be aggravated in the colder weather, but generally, she is comfortable and has returned to her usual cleaning duties, although she does not do the heaviest of tasks.
Restrictions
131 In addition to pain and stiffness, the plaintiff is unable to do heavy lifting or overhead tasks involving her right upper limb.
132 The plaintiff complained to both medico-legal examiners of these difficulties and they confirmed that, because of her injury, she would have some difficulties in this regard.
133 Counsel for the defendant submitted that Professor Love, who was not known for his sympathy for the defendant,[49] thought the plaintiff had made a very good recovery and had been left with negligible long-term impairment. He considered both fractures had healed and that the plaintiff would continue at this low level for the foreseeable future.
[49]T43
134 It was submitted this view could not assist the Court in coming to the conclusion the plaintiff had a serious injury.[50]
[50]T43
135 Further, it was interesting that Professor Love then talked about the plaintiff having significant restrictions in the range of motion to the right shoulder causing a degree of long-term impairment. Then, he said that she is working despite mild restrictions in the range of right shoulder motion and that she was mildly restricted in her current duties.[51]
[51]T45
136 While counsel for the plaintiff said they took great comfort from Mr Griffiths’ opinion, it was submitted his report had to be read very carefully because of what he really, and in fact, is saying.[52] He noted the plaintiff did not complain of any pain in the region of the right shoulder, the shoulder felt weak and there was a mild range of movement restriction with problems with overhead activities that the plaintiff did while in discomfort.
[52]T43
137 In terms of the elbow, his examination findings and comments, it was submitted, do not reach the “very considerable” test.[53] Further, the clinical x-ray findings of satisfactory uniting militate against serious injury, as do mild symptoms related to the scars.
[53]T44
138 It was submitted, on those medico-legal reports, the plaintiff could not succeed.
139 Further, there is no evidence from any lay witness. There is no report from the current general practitioner, and the last report from the treating surgeon was in 2010.[54]
[54]T45
140 Counsel for the plaintiff submitted, on the medico-legal reports in isolation, the Court would be entitled to conclude the plaintiff has restrictions in respect of the performance of a range of activities, both at work and at home, but combined with the plaintiff’s affidavit and the sworn evidence, it would be entitled to come to an unchallengeable conclusion that the plaintiff does have restrictions in relation to the use of her right upper limb, both at home, work and at leisure.[55]
[55]T46
141 It was submitted the pièce de résistance was Mr Griffiths’ report.[56] Reliance was placed on his comments and examination findings.[57] It was submitted they were not insignificant restrictions[58] and they are significant, with the right shoulder stiffness affecting the plaintiff’s ability to perform certain activities at work.[59]
[56]T49
[57]T50
[58]T50
[59]T51
142 It was submitted Mr Griffiths’ opinions were very strongly supportive of the plaintiff’s case in terms of a serious injury.[60]
[60]T51
Treatment
143 Having worn a sling on her right arm for a couple of months after the accident, the plaintiff ultimately had internal fixation surgery. Post operatively, she last saw her surgeon, Mr Critchley, in October 2010.[61]
[61]T40
144 Whilst Mr Critchley was very optimistic about the plaintiff’s prognosis when he last saw her in October 2010, clearly, she later had problems with her right arm requiring attendance at her general practitioner in November 2011 seeking hydrotherapy and gym for her accident injury, and in June, September and October 2014, complaining of right elbow pain and seeking further investigations and medical certificates.
145 Most recently, the plaintiff attended her general practitioner in April 2016 complaining of right arm pain and difficulty doing washing at work that day.
146 Whilst it would have been of assistance if the general practitioner had provided a report in the usual course,[62] as counsel for the plaintiff submitted, the clinical notes to some degree fill this void, setting out ongoing attendances after 2010.[63]
[62]T41
[63]T48
147 Similarly, the reports of the various investigations undertaken during that time would have been useful.
148 There do not, however, appear to be any accident-related attendances in 2017 and 2018.[64]
[64]T43
149 There was some issue as to the plaintiff’s present medication intake.
150 Counsel for the defendant relied on the history to Professor Love that the plaintiff infrequently took a painkiller for pain relief. Mr Griffiths described her intake as intermittent Nurofen and occasional Panadol.[65]
[65]T40
151 The plaintiff, however, maintains she takes six Nurofen a day – two tablets morning, day and night. She also at times, when her pain is more severe, takes her partner’s Endone.[66]
[66]T47
152 Whilst there is no medical evidence about the plaintiff’s Endone intake or any other evidence in that regard,[67] counsel for the plaintiff submitted the plaintiff’s evidence about taking this medication should be accepted.[68]
[67]T45
[68]T46
153 Given my views as to the plaintiff’s honesty and truthfulness, I accept her evidence about her intake of both Nurofen and occasionally, Endone.
Work
154 Counsel for the defendant relied on the medico-legal opinion that the plaintiff was fit to resume normal duties. Further, her general practitioner, Dr Narasimhaiah, recorded on 4 October 2010, she was fit to resume normal duties from 5 October 2010 following a comminuted fracture of the right humerus and elbow.[69]
[69]T40
155 It was submitted that return to normal duties was significant. In Sumbul v Melbourne All Toya Wreckers Pty Ltd,[70] the Court held, in such circumstances, it was telling against pain and suffering consequences.[71]
[70][2006] VSCA 292
[71]T43
156 However, the plaintiff never returned to full range of duties although cleared. On an ongoing basis, she was unable to do heavy work such as lifting pots of soup in the kitchen and overhead cleaning. As recently as April 2016, she attended her doctor complaining of right arm pain doing the washing at work.
157 Counsel for the plaintiff submitted that there is another relevant issue, now that the plaintiff’s employment has been terminated and, whatever the reason, she is now unemployed.
158 Counsel for the plaintiff relied on the analysis by the Court of Appeal in Richter v Driscoll[72] of the definition of “suitable employment” under the Accident Compensation Act.
[72][2016] VSCA 142, see also Hayes v Victorian WorkCover Authority [2017] VCC 867 per Judge Kings at paragraph [12]
159 It was submitted the plaintiff is now on the open market, having been with one employer for so long, and now she has an impairment of her dominant upper limb which precludes her from carrying out a whole wide range of activities.[73]
[73]T54
160 It was submitted as the plaintiff has suffered an impairment to her upper limb, she has nothing to sell to an employer because of the restrictions imposed upon her. She has had eighteen years’ solid employment and following the accident has had ongoing restrictions in her job but tolerated by that employer for whom she had been working for some time, but that is no longer the case since her employment was terminated.[74]
[74]T53
161 With the impairment to her right dominant arm, it was submitted the plaintiff would face difficulty in the “real world” obtaining further employment.[75]
[75]T54
162 Obviously the plaintiff’s intellectual disability would cause her further problems in this regard.
163 In response, counsel for the defendant submitted this definition of suitable employment was relevant to the Accident Compensation Act, not the Transport Accident Act. In any event, the plaintiff, in this case, returned to work for eight years after the accident and the original general practitioner, and both medico-legal doctors considered she had the capacity to do her normal duties.[76]
[76]T56
164 In my view, the employment consequences to the plaintiff were significant, both before and after her employment was terminated. She has never been able to return to full unrestricted duties, a real problem for an uneducated woman, with an intellectual disability who has only, and can only, do manual work.
165 Whilst the definition of suitable employment relates to the Accident Compensation Act, the plaintiff is now in a position where her chances of future employment are significantly reduced.
166 I am required to consider any impairment as at the date of hearing. Obviously as she is now unemployed, the plaintiff will face significant difficulties gaining obtaining further employment because of her right arm injury and also her intellectual disability.
Other consequences
167 Whilst the plaintiff is still able to do some housework and gardening, she has difficulty with the heavier and higher tasks, and requires assistance from her partner in relation thereto.
168 Since the accident, the plaintiff has been unable to straighten her right arm. This has affected the way she sleeps and she is also unable to cuddle her partner as she would like.[77]
[77]T46
169 At times, the plaintiff has problems dressing, doing up her bra.
170 The matters which the plaintiff needs to establish are to be resolved on all the evidence before the Court:
“… It was not trial by doctors’ opinions; nor a trial in which relevant questions were to be decided on the footing, in effect, that medical opinion did not provide answers to those questions.”[78]
[78]Per Ashley JA in Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605 at paragraph [17]
171 Taking into account all the evidence, I am satisfied that the plaintiff’s right arm impairment is “serious”.
172 The plaintiff is not a woman to complain and, as stated earlier, understates her level of pain and restriction. I accept that she has tried to make the best of her situation, but continues to have problems with her right dominant arm, such that she requires ongoing medication, at times of a significant nature.
173 As the plaintiff’s condition has persisted for in excess of eight years with little improvement, despite treatment, I am satisfied her impairment is long term.
174 Accordingly, I grant leave to the plaintiff to bring proceedings for damages.
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