Taylor v Transport Accident Commission
[2013] VCC 860
•6 June 2013 (Revised)
| IN THE COUNTY COURT OF VICTORIA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-03067
| SUSAN TAYLOR | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 4 and 5 June 2013 | |
DATE OF JUDGMENT: | 6 June 2013 (Revised) | |
CASE MAY BE CITED AS: | Taylor v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 860 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the right shoulder
Legislation Cited: Transport Accident Act 1986
Cases Cited:Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Richards v Wylie (2000) 1 VR 79; Humphries v Poljak [1992] 2 VR 29
Judgment: Leave granted to the plaintiff to commence proceedings for the recovery of damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell SC with Mr D J N Purcell | Arnold Dallas McPherson |
| For the Defendant | Mr AJ Moulds SC with Mr R Kumar | Hall & Wilcox |
HIS HONOUR:
1 The plaintiff seeks leave to bring proceedings to recover damages pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”). The definition of “serious injury” relied on is s93(17)(a) “serious long-term impairment or loss of a body function”. The injury is to the right shoulder and the relevant body function is of the right shoulder and right arm.
Background
2 The plaintiff is aged forty-eight years of age and injured her shoulder in a frightening transport accident on 7 January 2006.[1] She is right-arm dominant.
[1]Plaintiff’s Court Book (“PCB”) 10 and 12
3 As well considerable conservative treatment,[2] she has undergone two operations on her shoulder: The first on 23 April 2009 and then open surgery on 13 August 2009.[3] She also sought a second specialist opinion about a possible third operation, given the persisting pain after the first two.[4] The plaintiff was a single mother at that time, who was engaged in part-time work as a carer, as well as being involved in dancing and teaching belly dancing. She performed at various public events and thoroughly enjoyed it.[5]
[2]PCB 12
[3]PCB 14
[4]PCB 60
[5]Transcript (“T”) 35-36
4 The teaching aspect of dancing was essentially voluntary.[6] She supported herself on her carer's income, which supplemented her social security benefits.[7] She found the carer work very rewarding.[8] Following her injury, she never returned to the care work due to the obvious lifting demands on her shoulder. She had looked after a quadriplegic client, “Danny”, for some five-and-a-half years and the lifting was too much.
[6]T36
[7]PCB 75-76
[8]PCB 10
5 Similarly, she has given up the belly dancing and teaching of belly dancing due to the shoulder injury. Despite her being confused at times about dates, I accept the medical evidence that the plaintiff had undergone several knee procedures in early 2006 and needed treatment for bilateral knee symptoms.[9] While it is clear that there were some knee problems over the years, since the early 1990s, I find that these did not prevent her leading a normal life in terms of work and other activities.
[9]Defendant’s Court Book (“CB”) 26A-41
6 Clearly, the rehabilitation from the arthroscopies also involved some limitations but they were relatively short lived. More importantly, and I must judge the plaintiff as she is now, she has made a good recovery, as noted by her doctor. That recovery was documented some four years ago by the general practitioner.[10] I accept the evidence that there is no impairment of function or relevant symptoms from her knees at the current time.[11]
[10]PCB 77
[11]T35, T57
7 The plaintiff sensibly has changed occupations twice to accommodate the ongoing pain and disability resulting from her right shoulder injury. She did a three-month TAFE course to become a laboratory technician in about 2007. She obtained permanent part-time work at the Daylesford Secondary College over the next three to four years, as a laboratory technician.
8 As with the carer work: “I found (the school job) the pain and associated problems in and around my right shoulder was simply becoming too much to bear”.[12] Sensibly, she moved into self-employment as a psychic/ palmist/holistic therapist and writer. It is non-physical work with regard to the use of the right shoulder. This business has been increasingly successful.[13]
[12]PCB 14
[13]PCB 76; T51
9 She enjoys the work and practises in Bendigo and Melbourne and at times, interstate. She deposes to have been suffering constant pain from her shoulder over the seven and a half years since the transport accident. It has required and still requires a lot of medication of different types.[14]
[14]PCB 12, 17, 22; T54-55
10 The defence to the application is that the consequences for the plaintiff flowing from the impairment of function are not serious, either in terms of impaired earning capacity or enjoyment of life.
The Plaintiff
11 I found the plaintiff an honest and generally reliable witness. She was a little vague at times and clearly wrong on some dates. I found, however, she was endeavouring at all times to tell the truth. She did not embellish her complaints. She has been prepared to change vocations in order to keep working and still works close to full-time, in spite of the ongoing impairment of function of the dominant right arm, the shoulder injury causes.
12 She was mistaken about the dates of some knee symptoms and surgical procedures, but the evidence about knee conditions is largely irrelevant. Knee symptoms have long passed being any problem for her.[15] In view of the success of the plaintiff in re-arranging her work options, there is no pecuniary disadvantage she has suffered. I find her earning capacity is impaired by the shoulder injury, in the sense that I accept it prevents her being a carer and a laboratory technician and a belly dance teacher.
[15]T34, T57
13 In fact, Mr Dooley, orthopaedic surgeon engaged by the defendant, probably sums it up: “She is capable of carrying out some light physical work and clerical duties. Her current employment is appropriate for her”.[16]
[16]DCB 25
14 The impairment of her capacity for work, that now precludes her from physically demanding occupations, does not amount to a serious consequence financially in the circumstances of this case.
15 Similarly, while I accept the plaintiff enjoyed the carer work, it is to her credit and good fortune that she has found alternative work in a self-employment role, that is also greatly enjoyable for her. The impairment of her previously unrestricted earning capacity does not therefore amount to a serious consequence in terms of lost enjoyment of life. However, I do find the plaintiff has suffered other consequences in terms of enjoyment of life that meet the test of being very considerable.
Medical evidence
16 There is little, if any, controversy about the injury the plaintiff suffered. Various descriptions of the shoulder injury are given.[17] It is probably best described as right rotator cuff tears involving anterior labral tear and partial tear of supraspinatus, with associated subacromial bursitis and secondary capsulitis.
[17]PCB 24, 40, 44, 50, 58 60; DCB 24
17 I will deal with the more up-to-date reports in terms of prognosis and limitations as I must judge the plaintiff as she is now.
18 A general practitioner, Dr E Griffin, notes in November 2011 how she was “…looking at a less physical career” than the laboratory technician job.[18] When finally reporting in February 2013, he felt she was permanently limited in employment, as she was unable to manage any jobs outside a comfortable range of movement and needed to avoid repetitive movement.[19]
[18]PCB 39
[19]PCB 42
19 Her condition was stable, it was unlikely her symptoms will alter significantly, was his view. He describes her current medication[20] in these terms:
“She currently takes Ibuprofen tablets 400mg three times a day. She also takes Panadeine tablets, two to four tablets per day, or Panadeine Forte tablets when her pain is severe. She has used approximately 20 Panadeine Forte tablets in the past three months.”
[20]PCB 42
20 I accept the evidence that she has been on painkilling medication over the course of the last seven-and-a-half-years as a result of the shoulder injury. I also find, as a matter of probability, this need is certainly long-term and probably will continue in fact for the foreseeable future. The treating orthopaedic surgeon, Mr Dayananda, has not reported for nearly four-and-a-half years now. He thought, in February 2009, she needed surgery and, in fact, he operated on the right shoulder on 23 April 2009, and again on 13 August 2009.
21 He was optimistic, in the only report I have, that she would have a good outcome, but I have no material from him post-surgery. I note that the Defendant’s Court Book index referred to it reserving the right to rely on his records, but I have nothing from him that helps me judge the current situation. He did say, in spite of being generally optimistic about surgery:
“There is a small possibility after any surgery that one is worse off than before.”[21]
[21]PCB 24
22 I read the plaintiff’s affidavit as saying that the surgery has not been of benefit to her.[22] In fact, she sought a second opinion from another orthopaedic surgeon, Mr H Williams, in June 2010. He did not recommend further surgery and thought function was likely to “…slowly improve over a number of years and pain becomes manageable”.[23] Similarly, he has not seen her now for some three years and his opinion is out of date. I find the slow improvement he expected has not in fact occurred.
[22]PCB 15
[23]PCB 60
23 Medico-legal opinions include that of Mr Gary Grossbard, orthopaedic surgeon, who saw her in January 2012. After the first consultation, he felt that: “In particular, her ability to work as a carer has been significantly compromised. She has clearly been resourceful enough to find more suitable employment”.[24] I accept those comments.
[24]PCB 45
24 On the second occasion, his opinion was largely unchanged. However, he found wasting, pain with movements, marked tenderness, together with muscle weakness.[25] He thought she had “…ongoing shoulder dysfunction in relation to what is probably a capsulitis following her shoulder surgery. The loss of function has resulted in a global loss of shoulder motion together with ongoing pain”.[26]
[25]PCB 46
[26]PCB 47
25 The condition was stable and permanent in his view. He accepted she has difficulties with daily living including dressing and housework. Her dance teaching and carer activities were beyond her now and for the foreseeable future.[27] I accept this relatively up-to-date opinion. The somewhat optimistic views of the treating surgeons have not proved to be accurate. It is to the point that whilst Mr Grossbard had an impression of wasting, at the January 2012 consultation,[28] he actually found such wasting by December 2012.[29]
[27]PCB 47
[28]PCB 44
[29]PCB 46
26 Mr Michael Shannon, orthopaedic surgeon, reported last year and recorded: “Wasting of the shoulder girdle and significant restriction of shoulder movement”.[30] He noted she had developed adhesive capsulitis and thought her permanently limited in terms of work requiring “Strenuous repetitive use of the arm, heavy lifting and work above shoulder level”.[31] She was restricted in domestic duties. No further surgery would help and the prognosis was for the stiffness and discomfort to remain.[32]
[30]PCB 57
[31]PCB 58
[32]PCB 59
27 Dr David Murphy, consultative physician in rehabilitation medicine, saw the plaintiff in November 2010 and recently in January 2013. His first report recorded: “Ms Taylor has ongoing pain and disability which will be permanent. She has had an injury which is quite likely to cause further degeneration of the shoulder joint”.[33] He thought she may even require a joint replacement in the future.
[33]PCB 50
28 On the second occasion, he noticed the “Shoulder was somewhat depressed compared to the left”.[34] He records very real permanent limits on her lifestyle as well as her work.
[34]PCB 53
29 It is a gloomy picture painted when he predicts a: “…permanent impact on her lifestyle with respect to her ability to undertake some activities of daily living, and in particular the ability to work and teach”.[35] Heavy lifting, repetitive lifting, pushing or pulling with her arm should not be undertaken and these are very considerable permanent limitations for a woman that he advises.
[35]PCB 54
30 The plaintiff was only forty years of age when injured. To be told, in effect, that she will be in difficulty with activities requiring her hands to be above shoulder or below waist level is to effectively limit her very considerably with respect to much of daily life.[36]
[36]PCB 54
31 Dr Murphy probably gives the most comprehensive medical analysis of the consequences of the impairment of the shoulder and arm function. I accept his opinion.
32 Mr Michael Dooley, who saw the plaintiff for the defendant this year thought she had sustained “…a soft tissue injury to the right shoulder that could have involved aggravation of underlined degenerative rotator cuff disease”.[37]
[37]DCB 24
33 After the two operations, including an open subacromial decompression, he thought patients could develop stiffness of the shoulder due to adhesions. He thought she still had marked restriction of motion and that there was “… an understandable psychological reaction to her situation and that this reaction is influencing her symptoms”.[38]
[38]DCB 25
34 There was no further orthopaedic treatment necessary, he thought, and he considered she would have ongoing intermittent pain. Light physical or clerical work was appropriate for her. Taking all his findings and comments into account, I do not read his opinion about “understandable psychiatric reaction” to mean the impairment is not organically-based. Rather, she has reacted, perfectly understandably, to the lack of success following operations when she said to him “She had never adequately recovered”.[39]
[39]DCB 25
35 In addition, she relates to him the losses suffered at home and work following the failure of the surgery to help her.[40] I accept those as accurate and genuine comments. I also find her impairment of function is physically based and not of psychological origin.
[40]DCB 23
36 The return to active employment at the school and in self-employment is a factor I need to consider in the context of evaluating the pain and suffering consequences. Authority that is relevant includes SumbulvMelbourne All Toya Wreckers Pty Ltd;[41] StijepicvOne Force Group Aust Pty Ltd;[42] and Suttonv Laminex Group Pty Ltd.[43]
[41][2006] VSCA 292
[42][2009] VSCA 181
[43][2011] VSCA 52
37 This is a case where there is a clear body of evidence that points to consequences outside the workplace that need to be evaluated. I find that the plaintiff is working because she is motivated enough to face her limitations, go out and gain qualifications and then find work that can accommodate a severely limited function of the right arm. It reflects on her genuineness and motivation.
38 If she bravely changes her work, is prepared to work now away from her home town, and that involves some painful driving of long distances for example, and to put up with her symptoms, she ought not to be penalised for stoicism when considering the “serious” test, see Dwyer v Calco Timbers Pty Ltd (No 2).[44]
[44][2008] VSCA 260
39 The constant pain the plaintiff suffers is, in my view, a very considerable consequence. It is more than long term. I find on the medical evidence, it will last for the foreseeable future. Her description of pain has not really been challenged in this application and the descriptions do not need to be quoted in detail.[45]
[45]T11; PCB 15 at paragraphs 27-32; PCB 22 at paragraph 3
40 Daily medication is required and will be required into the future. To endure pain of this dimension every day over the last seven-and-a-half years and into the future indefinitely is a very serious consequence. Recent commentary on the relevance of such pain is to be found in Aburrow v Network Personnel Pty Ltd.[46]
[46][2013] VSCA 46 at paragraphs 19 and 20
41 In the matter of Snibson,[47] there was also consideration of the question of pain, and I quote:
“… The endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[48]
[47]ACN 005 565 926 Pty Ltdv Snibson [2012] VSCA 31
[48]at paragraph 71
42 The disabling effect of pain impacts on her sleep,[49] as well as on the mobility of her arm and the performance of her household activities.[50]
[49]PCB 15, 21; T11
[50]PCB 18, 21
43 It has affected her recreational activities and, in particular, her belly dancing and dancing teaching, which was a particular interest of hers.[51]
[51]PCB 17-18
44 The evidence about how her impairment affects sleep is enough on its own in this case to be properly judged a very considerable consequence.[52] She said in oral evidence that “I accept that because of pain I usually wake between two and four times every night”.[53] That, in itself, after considerable treatment, is a very considerable consequence. The importance of sleep in these applications has been considered in the appellate jurisdiction: HadenEngineering Pty Ltd v McKinnon,[54] where President Maxwell said:
[52]PCB 15, 21
[53]T11
[54](2010) 31 VR 1 at paragraph 45
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. Mr McKinnon often experiences multiple painful awakenings in the course of a single night. As his counsel submitted, that is properly to be regarded as constituting a very considerable diminution in Mr McKinnon's enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
I find that passage is relevant to the current case.
45 Also of particular singular significance in this application is that the plaintiff has effectively lost her belly dancing interest. For her, this is a very considerable consequence on its own. I accept it was her major interest outside family and the care work that she enjoyed.[55] In the circumstances of this case, to lose that interest is serious for her.
[55]PCB 9, 10, 18, 21
46 I note also where the plaintiff lives in rural Victoria. Evidence is hardly needed to find that Campbells Creek is an area where the dependence on the ability to drive, both for daily living, as well as in a search for work is far greater than in large urban areas. The plaintiff refers to the detrimental effects on her ability to drive long distances. It is particularly relevant to the location she has chosen to live in.
47 The defendant’s argument about the psychological aspect of the medical evidence turns on an analysis of Richards v Wylie.[56] It is really only Mr Dooley who comments on it, and I have already referred to the relevant passages.
[56](2000) 1 VR 79
48 The comment by President Winneke at paragraphs 16 and 17 in that appeal are apposite. I find in this case, that any psychological concerns[57] do not amount to a mental disorder that produces any impairment of function. Her medical response to the physical injury is no more than a reasonable response to the loss of work she enjoyed, limitations on her person life and the enduring pain she has faced and will face long term. Her sense of loss is also relevant to the failure of the surgical procedures to improve her situation.
[57]PCB 16-17
49 I reject the defendant’s argument that the psychological or mental response is relevant in all the circumstances of this case. The defendant’s argument about the plaintiff’s return to work has more force. She has successfully done so. However, as I have already indicated in this case, I accept that there are other consequences outside work that are relevant and meet the test of being serious.
50 I am required to judge the application by reference to a comparison with other cases in the range of possible impairments or losses, and to determine if the consequences here can be described as “at least very considerable”: Humphries v Poljak.[58] The task involves matters of value, judgment, opinion and impression to a certain extent. For the reasons described, I find the combined loss of enjoyment of life consequences in all the circumstances do meet the test of being very considerable.
[58][1992] 2 VR 129
51 In fact, in my view, some specific consequences meet that test on their own, as I have already indicated.
52 I grant leave to the plaintiff to issue proceedings for the recovery of damages.
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