Tonta v Transport Accident Commission
[2018] VCC 1430
•19 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-05748
| FAYE LORETTA TONTA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 August 2018 | |
DATE OF JUDGMENT: | 19 September 2018 | |
CASE MAY BE CITED AS: | Tonta v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1430 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport accident – multiple injuries – application with respect to impairment of the right shoulder – disentangling of the impairment consequences resulting from other injuries and other medical conditions – whether the pain and suffering consequences of the right shoulder are “serious”
Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: The plaintiff has leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Mr C D Griffin | Maurice Blackburn Lawyers |
| For the Defendant | Mr P D Elliott QC with Mr P V Bourke | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 On 11 February 2013, the plaintiff was riding a bicycle along Glenhuntly Road, Caulfield, heading toward a parked car. She noticed that the door of the car was ajar. The driver of the car was seated in the driver’s seat. She sounded a warning of her approach, but to no avail, because the driver swung the car door open and into the way of the plaintiff, resulting in her falling off her bicycle.
2 The plaintiff suffered a number of injuries. The principal injury pursued at trial was an injury to her right shoulder, which the plaintiff submitted resulted in a serious long-term impairment or loss of the function of her right shoulder. The defendant admitted that the plaintiff had suffered the injury and that she had suffered a long-term impairment or loss of the function of her right shoulder, but it submitted that the impairment consequences were not “serious”.
3 Mr T P Tobin SC appeared with Mr C D Griffin of counsel for the plaintiff. Mr P D Elliott QC appeared with Mr P V Bourke of counsel for the defendant.
The Plaintiff’s medical treatment
4 The plaintiff was removed from the scene of the transport accident by ambulance. She was taken to The Alfred hospital. Radiological investigations revealed that she had suffered a comminuted fracture of the mid-right clavicle with inferior displacement.[1] She suffered a number of other injuries which it is unnecessary to describe at this point. She was assessed by medical practitioners relevant to the nature and extent of injuries, kept in overnight and then discharged.
[1]Plaintiff’s Court Book (“PCB”) 48-49
5 Dr Noelene Jacka, general practitioner, made a home visit to the plaintiff on 14 February 2013. She understood that the plaintiff had not been referred for an orthopaedic surgical opinion relevant to the fractured clavicle. She referred the plaintiff to Mr Steve Csongvay, orthopaedic surgeon.[2]
[2]PCB 30-31
6 The plaintiff first saw Mr Csongvay on 21 December 2013. He advised the plaintiff to have the fractured clavicle surgically repaired,[3] which he undertook on 25 February 2013. He created an incision which left a scar of 12-13 centimetres. He fixed the comminuted fragments of the clavicle using a plate and screws. That is best demonstrated in an x-ray taken on 18 April 2013 showing the plate and screws in position.[4]
[3]PCB 24
[4]Exhibit A
7 The plaintiff swore two affidavits on 7 November 2014[5] and 16 August 2018[6] in which she described persisting pain and restriction of movement in her right shoulder and interference with the number of activities due to the impairment of the function of her right shoulder. The defendant contested the substance of what the plaintiff swore to in her affidavits and, in particular, emphasised the opinion of Mr Csongvay who, it submitted, has given an opinion seriously inconsistent with what the plaintiff says are the impairment consequences produced by injury to her right shoulder.
[5]PCB 2-11
[6]PCB 12-19
8 It is convenient to summarise Mr Csongvay’s opinion at this point. He provided a report dated 7 April 2014, in which he summarised the treatment he provided to the plaintiff.[7] He reviewed her on 7 October 2013. On that occasion, he considered that the plaintiff had regained “full active shoulder mobility with only minimal discomfort and weakness”. He reviewed x-rays which demonstrated that the fractured clavicle had united. He then expressed the following opinion:
“I believe that Faye’s prognosis is excellent. She has already made an excellent recovery in as far as mobility and comfort is concerned. I expect her shoulder strength to continue to improve.
In the long-term, Faye may experience some local irritability from her fixation plate, which may require removal in the future … .”[8]
[7]PCB 27-29
[8]PCB 29
9 The plaintiff was given a copy of Mr Csongvay’s report. She was taken to relevant parts of the report and, in particular, the parts which I have quoted. She was asked to comment on whether she had achieved that level of recovery. The plaintiff did not give a direct answer. The substance of the exchange under cross-examination is as follows:
Q:“You had regained by October full active shoulder mobility with only minimal discomfort and weakness?---
A:Well - - -
Q:He examined you, didn’t he, he’s the treating surgeon?---
A:Yes, but I don’t remember at the time what I was asked to do or whatever, but I definitely have lots of complications from it in movement since.”[9]
[9]Transcript (“T”) 10
10 I observed the plaintiff’s manner when she was being cross-examined. She appeared to me to be surprised by Mr Csongvay’s opinion, giving me the impression that she did not agree with it, and the more expansive answer she gave, left me with a strong impression that she did disagree with his opinion.
11 Despite Mr Csongvay’s opinion given in October 2013, the plaintiff continued to have active treatment. The plaintiff came under the care of Mr Graeme Tyler, physiotherapist, on 19 March 2013.[10] In a report dated 26 February 2014, he outlined physiotherapy treatment he continued to provide the plaintiff for her right shoulder, neck and left index finger. In relation to the plaintiff’s right shoulder, he considered that there was a need to strengthen the area around her glenohumeral joint. He was optimistic that she would regain full function over ensuing months through exercise and loosening up of the areas on which he was providing her treatment and, of course, that included her right shoulder.[11]
[10]PCB 6
[11]PCB 26
12 In addition to the physiotherapy treatment provided by Mr Tyler, the plaintiff has continued to have physiotherapy treatment until February 2018. By that stage, she was having physiotherapy on a monthly basis for her right shoulder provided by Ms Amanda Robertson of Action Rehab. She provided a report dated 7 March 2018 in which she described the treatment provided by her. She summarised the plaintiff’s “ongoing issues” as including “Reduced end of range shoulder movement”.[12]
[12]PCB 41-42
13 The plaintiff was also being treated by Mr Sean Walton, physiotherapist, of the Melbourne Whiplash Centre. He provided a report dated 20 February 2018 in which he describes principally treating the plaintiff’s neck injury. In taking a history, he recorded that the plaintiff continued to experience daily shoulder pain. It is not clear whether the treatment that he provided for the plaintiff’s neck injury also included any treatment for her right shoulder.[13] The plaintiff said that it did.[14]
[13]PCB 43-44
[14]PCB 15
14 The plaintiff said that she stopped having physiotherapy because she was told, presumably by the physiotherapists, that they could not do anything more for her. She described some of the physiotherapy treatment as involving exercises and the use of exercise bands to do stretches and massage.[15]
[15]T11,T15 and T25
15 The plaintiff submitted that I should interpret Mr Csongvay’s opinion as based on what he saw was the product of his treatment of the plaintiff’s right shoulder. I think there is something in that submission. When the plaintiff presented herself to Mr Csongvay, she obviously had a serious fracture which could only be treated successfully with surgery. The surgery took her from a very parlous state of affairs, to one where she experienced a reduction in pain and a return to significantly better movement.
16 In any event, the fact that the plaintiff continued to have physiotherapy treatment demonstrates to me that Mr Csongvay’s opinion needs to be looked at in that particular way. Furthermore, when I summarise the medico-legal opinions, it will become apparent that two other orthopaedic surgeons found a basis upon which they could accept the plaintiff’s complaints of persisting symptoms. This is obviously inconsistent with the opinion of Mr Csongvay, and confirmatory of the plaintiff’s evidence.
17 The plaintiff is in receipt of prescriptions for medication to treat a migrainous condition which has troubled her for a very long time. One form of medication prescribed to treat that condition is Panadeine Forte. She also takes it to treat pain which she experiences in her right shoulder. She also takes a sleeping tablet to assist her to get to sleep, because the pain which she experiences in her right shoulder and neck interferes with her capacity to sleep restfully.[16]
[16]PCB 15-16
18 The plaintiff has engaged in self-help treatment. She attends yoga and Pilates to strengthen her right shoulder.[17] She also attends what she described as dance classes six times per week. The dancing style was described as “Zumba” and “Shubham”. She described the two forms of dance as being similar.[18] The extent to which she engages in yoga, Pilates and dance is limited to what she is able to physically do. She gave examples of the limitations, being that when she lies flat on a mat on her stomach that she cannot extend her right arm “out flat”, or put it behind her back and extend it backwards.[19] She said that she has been told that this self-help regime is good for her.[20]
[17]T11,
[18]T14-15
[19]T7-8
[20]T25
19 Apart from the treatment I have referred to in this summary of the plaintiff’s treatment, she has not had any other treatment. She has not returned to seek any specialist opinion regarding any treatment options relevant to her right shoulder.
20 The defendant challenged the plaintiff’s evidence that she has had any treatment of any significance since she last saw Mr Csongvay. Part of that challenge was based on an entry in the clinical notes of Dr Niroshe Amarasekara of 2 September 2015 which is in the following terms:
“# right shoulder pain
Right shoudler (sic) has been sore for about 5 weeks now
this is the shoulder that she had the injury and the accident on about 2 years ago
but has been pain free for about 12-18 months
the pain started about 4-5 weeks ago
main thing was that she was doing physiotherapy and clinical pilates regularly
then had an abdominoplasty in May 2015 and this resulted in her needing to stop this
then she went on to do pilates
? disuse /dysfunction
o/e
limited internal rotations
limited in all movements but she says this was there previously
some wearing of that shoulder
but on palpation pain ant[e]riorlyimp > ? buristiss (sic).”[21]
[21]Defendant’s Court Book (“DCB”) 147
21 Dr Amarasekera referred the plaintiff for an ultrasound which was taken on 3 September 2015. The radiologist was of the opinion that the ultrasound demonstrated mild chronic tendinopathy of the supraspinatus tendon not associated with tearing, no bursitis, and her pain and restricted movement might be due to adhesive capsulitis or osteoarthritis.[22]
[22]PCB 61-62
22 The plaintiff next saw Dr Amarasekera on 4 September 2015. His cryptic note appears to summarise the radiologist’s opinion. He suggested she have physiotherapy.[23] On 3 September 2015, he prescribed her Panadeine Forte for pain relief for her right shoulder.[24]
[23]PCB 147
[24]PCB 147
23 The entry in the clinical notes was put to the plaintiff, and she was asked whether, in fact, what Dr Amarasekera recorded was true. She said:
A:“Well, I don’t know how I could be pain free, perhaps it had improved with Pilates and I was in less pain, I don’t know, it’s always giving me trouble, always has.
Q:I put to you that up to that date without me going through them all, you were going to the doctor for other complaints but not for your shoulder, would that be right?---
A:Well, I can’t do any more for my shoulder than the surgery which I don’t want to have because it was so horrific and I don’t want to have surgery on it.
Q:Could you please just answer me (sic) question. Could it be right that in 2013 to 2015 you hadn’t gone to see your doctor about your shoulder, could that be right?---
A:Could be right because I can’t do anything about it, I just do exercises and physio and I’m referred to physio, like, once every fortnight or once every month.”[25]
[25]T18-19
24 My strong impression from the plaintiff’s answers is that she did not accept that the clinical note accurately reflected the condition of her right shoulder as at September 2015. I prefer the plaintiff’s evidence. I accept that she has experienced pain and limitation of movement in her right shoulder continuously, and has resorted to physiotherapy and the self-help treatment in an endeavour to maintain control over the pain and limitation of movement.
25 Furthermore, I think the same reasoning relevant to how I dealt with Mr Csongvay’s opinion applies here. In short, the plaintiff continued to have physiotherapy treatment, and the other orthopaedic surgeons found a basis upon which they could accept the plaintiff’s complaints of persisting symptoms confirmatory of the plaintiff’s evidence.
The impairment consequences
26 I now propose to set out the impairment consequences which the plaintiff says are a result of the impairment of function of her right shoulder.
27 In summary, in relation to pain and suffering the plaintiff says:
· She suffers pain in her right collarbone and restricted movement in her right shoulder.[26]
[26]PCB 6 and 13
· She has difficulty lifting her right arm above shoulder level, but is able to do it through undertaking Pilates and exercise.[27]
[27]PCB 6 and T29
· She does not have free movement in her shoulder. For example she cannot put her right arm straight out when she is lying on her stomach or when swimming. She cannot reach into the back of the car or reach up her back to do up a bra.[28]
[28]T29-30
· The surgical scarring is sensitive to touch and pressure.[29]
[29]T7
· She needs to undertake the self-help treatment to maintain mobility in her right shoulder.
· She suffers interference with her sleep. She is often woken in pain if she rolls onto her right shoulder. She uses Temazepam to assist her in getting sleep. [30]
· She uses Panadeine Forte for pain relief for her right shoulder.
[30]PCB 8 and T 20-21
28 In summary, in relation to loss of enjoyment of life, the plaintiff says:
· Her husband now undertakes about 90 per cent of the domestic chores in their home.[31]
[31]PCB 7 and 16
· She has difficulty hanging out laundry, vacuuming, sweeping and mopping.[32]
[32]PCB 7
· She has difficulty lifting plates of food, washing baskets, heavy saucepans and cooking dishes.[33]
[33]PCB 7
· She has difficulty putting things into, and taking things out of, a microwave which is elevated above bench-top height.[34]
[34]PCB 7 and 16
· She has trouble carrying heavy bags of groceries.[35]
[35]PCB 7 and 16
· She tries to avoid putting any pressure on her right shoulder, for example where she might have the strap of the bag over her shoulder.[36]
[36]PCB 7-8
· She has difficulty with the repetitive use of gardening tools. Her capacity to do a full range of the heavier gardening tasks is reduced.[37]
[37]PCB 8 and 17
· She is no longer able to undertake house painting, window washing and washing her car.[38]
[38]PCB 8
· She has difficulty with personal care and dressing, for example extending her arm around her back to do up a bra.[39]
[39]PCB 8
· She has difficulty walking as far as she used to, and up hills, engaging in yoga and Pilates to the extent she did previously, and cycling as much and as far as she used to because of bumps, and holding the handlebars is difficult.[40]
· Driving aggravates the pain in her right shoulder.[41]
[40]PCB 9, 13 and 18
[41]PCB 16
29 The plaintiff’s husband, Ken Tonta, swore an affidavit on 28 August 2018 in which he described his observations of the difficulties which the plaintiff has had with her right shoulder. I accept his evidence.[42]
[42]PCB 121-126
Concurrent medical conditions
30 The plaintiff has admitted to a number of concurrent medical conditions which also have impairment consequences. Some of those were caused by the transport accident. She referred to them in significant detail in both of her affidavits, and during cross-examination.
31 I do not propose to set out the text of the cross-examination relevant to the concurrent medical conditions because I consider that to be unnecessary. I have compared what the plaintiff said in her affidavits about those concurrent medical conditions with what she said in cross-examination. My strong impression is that there is no material difference between the two, except that during cross-examination, she further explained the extent of the impairment consequence caused by those concurrent conditions.
32 The defendant submitted that an onus is borne by the plaintiff to “strip” the concurrent medical conditions away in order to determine the nature and extent of the impairment consequences caused by the shoulder injury. I interpreted the submission to be reliance on Peak Engineering & Anor v McKenzie[43] and, in particular, to what the Court of Appeal observed relevant to the onus borne by a plaintiff when there are concurrent medical conditions which may be contributing to the impairment consequences contended for the by plaintiff:
“In my respectful opinion, these grounds must be upheld. In a case of this kind, where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury. The matters identified in the previous paragraph were all directly relevant to the enquiry in the present case, and needed to be addressed squarely.
It is possible to imagine a case where the consequences of the original injury are so clearly separate and distinct from the consequences of the subsequent injury that no ‘disentangling’ is necessary. But this was not such a case. As the appellants pointed out, there was evidence indicating that certain of the pain and suffering consequences which his Honour regarded as relevant were attributable to the knee injury as well as to the hand injury.”[44]
[43][2014] VSCA 67
[44]Paragraphs [24]-[25]
33 The defendant referred to a large number of concurrent medical conditions which, it submitted, all contribute, in one way or another, to the impairment consequences contended for by the plaintiff. In general terms, I have considered all of these concurrent medical conditions consistent with Peak Engineering. Having done so, I am not satisfied that any one of them, or all of them collectively, have the effect of reducing the impairment consequences relied upon by the plaintiff to the point where they do not satisfy the statutory test.
34 I will now deal with each of the concurrent medical conditions.
Migraines
35 The plaintiff has suffered from a migrainous condition since she was fifteen years of age.[45] Before the transport accident, she suffered migraines about once a month or so on average. Since the transport accident, they have increased to once a fortnight and sometimes twice a week. They can last up to two or three days.[46]
[45]PCB 3
[46]PCB 14
36 Dr Amarasekera referred the plaintiff to Dr John Waterston, neurologist, for treatment of her migraine condition. It would appear that she saw him on 27 October 2016. He took a history that the migraines occurred during the plaintiff’s sleep, and at the time when he saw her, they were occurring twice weekly. She told him that she was taking up to eight Panadeine Forte per day to manage the migraines.[47] She was taking one or two Panadeine Forte before the transport accident.[48]
[47]PCB 34 and 38-40
[48]T16 and DCB 123-124
37 The plaintiff said that her use of Panadeine Forte is also for right shoulder pain.[49] She did not distinguish between the use of Panadeine Forte for migraines as opposed to its use for right shoulder pain. I think I can infer that she uses Panadeine Forte when she has migraine headaches, perhaps more frequently relevant to her right shoulder, because it is a constant problem.
[49]T17
Left index finger
38 The plaintiff suffered an injury to her left index finger in the transport accident. It has continued to trouble her because of the development of scar tissue which has limited the movement of the finger.[50] She has had some medical treatment for the finger, which appears to have been mainly hand therapy in 2013.[51]
[50]PCB 5
[51]PCB 5
39 The impairment consequences of the injury to the finger are a weaker grip evident when gripping objects, and making a fist. The plaintiff is unable to fully flex the finger. It contributes to her inability to carry shopping, hold a dog leash, carry a laundry basket, carry plates, use pruning shears and other heavier gardening implements, and to hold the hand of her grandchildren.[52]
[52]PCB 5-6, 8 and 13-14 and 16-17 and T17-18 and T29
40 My impression is that the impairment consequences caused by the plaintiff’s right shoulder are not contributed to much by the impairment consequences caused by the finger. There are, no doubt, impairment consequences caused by the finger, but they appear to me to be limited to interference with certain activities, and not to a significant degree.
Right knee
41 The plaintiff suffered an injury to her right knee in the transport accident. The plaintiff said very little about the impairment consequences caused by her right knee in either of her affidavits, except that she recovered from the consequences of it.[53]
[53]PCB 7
42 However, the plaintiff and her husband went on an overseas trip. It would appear that it was as a result of walking over uneven terrain that she experienced pain in her right knee. Dr Amarasekera referred the plaintiff to Mr Moran, orthopaedic surgeon. He advised her to undergo arthroscopic debridement of the medial meniscus, which he performed on 30 November 2017.[54]
[54]PCB 36-37
43 My impression is that the plaintiff recovered from the right knee injury. She described having pain and difficulty bending her knee before she had the surgery.[55] She has been able to continue with her yoga, Pilates and dance, as well as undertaking further overseas trips. I think it is reasonable to infer that she obtained a good result from the surgery.
[55]T12
Left knee
44 The plaintiff subsequently experienced pain in her left knee which she put down to favouring her left leg because of pain in the right knee. She was advised by Mr Moran that she could have an injection into her left knee which she considered to be too expensive to undergo.[56] Otherwise, there is very little about any impairment consequences caused by her left knee in the evidence.
[56]T12-13
45 She was able to continue with her yoga, Pilates and dance as well as undertaking further overseas trips. I think it is reasonable to infer that it is of little consequence to her in terms of causing any impairment consequences.
Right thumb
46 The plaintiff saw Dr Jacka on 2 May 2013 complaining of weakness in her right thumb, which was improving.[57] The plaintiff said that she was provided with an injection into her right thumb.[58] Her main complaint was that she found it difficult to chop hard vegetables because of pain in her right thumb.[59]
[57]DCB 129
[58]PCB 15
[59]For example the history she gave to Mr Mangos at PCB 65 and Dr Flynn at PCB 102
47 More recently, the plaintiff developed pain in her right thumb doing some grouting work in the bathroom of her home.[60] She sought medical treatment from Dr Amarasekera on 10 October 2017. She told him that her grip was affected and that she was not able to do much with her right hand.[61]
[60]T33
[61]DCB 160
Neck
48 The plaintiff suffered an injury to her neck in the transport accident.[62] It has troubled her since the transport accident. She described the impairment consequences of the neck as causing her pain, stiffness, headaches and muscle spasm.[63]
[62]PCB 4
[63]PCB 6
49 The plaintiff described interference caused by her neck with carrying heavy bags of groceries,[64] repetitive use of gardening tools,[65] sleep,[66] yoga and Pilates,[67] and walking.[68]
[64]PCB 7
[65]PCB 8
[66]PCB 8
[67]PCB 9
[68]PCB 10
50 Dr Jacka considered that the plaintiff had suffered a soft tissue injury to her neck.[69] She referred the plaintiff to have physiotherapy, which was provided by Ms Robertson, who noted pain on active examination of the neck.[70] The plaintiff was subsequently treated by Mr Walton. He noted that the plaintiff was suffering both daily neck and right shoulder pain, as well as intense headaches. On examination, he noted reasonably significant loss of movement.[71]
[69]PCB 30-31
[70]PCB 41-42
[71]PCB 43-44
51 Dr Amarasekera continues to treat the plaintiff. In his report dated 4 March 2018, he recorded that the plaintiff told him that she was suffering right-sided neck pain, poor sleep and headaches. It is unclear to me whether the poor sleep and headaches being attributed to the right sided neck pain is exclusively, or partly, due to the right shoulder. He noted that the only treatment she was having at that time was physiotherapy.[72] I take that to mean that she was not being treated by the prescription of painkilling medication, which means that the Panadeine Forte was prescribed for migraines and the right shoulder only.
[72]PCB 45-46
The medico-legal opinions
52 It may be thought that I have taken the medico-legal opinions out of chronological context by dealing with them last, rather than dealing with them immediately after summarising the opinions of the treating medical practitioners and paramedical practitioners. My reason for doing so is that two orthopaedic surgeons have been asked to consider all of the injuries suffered by the plaintiff. Their opinions are relevant to undertaking the tasks set for the trial judge referred to in Peak Engineering.
53 Mr Peter Mangos, general surgeon, examined the plaintiff on 28 March 2014. He recorded that the plaintiff told him that she had a painful right shoulder which interfered with her activities at home and made it difficult for her to lift, push, pull and strain. She told him that she had a painful neck which caused a “good deal of insomnia”. Mr Mangos did not distinguish between the impairment consequences of each of the injuries. He aggregated them when he offered an opinion about the extent that they impaired the plaintiff’s functioning.[73]
[73]PCB 64-66
54 Mr Murray Stapleton, plastic and hand surgeon, examined the plaintiff on 15 May 2014. Although his specialty is plastic surgery, he commented largely on the plaintiff’s orthopaedic injuries. He considered that her right shoulder injury was significant because of the loss of movement which she had suffered.[74]
[74]PCB 68-71
55 Dr Jennifer Flynn, orthopaedic surgeon, examined the plaintiff on 11 April 2018. She was aware of the different injuries concurrently producing the plaintiff’s pain and suffering consequences, namely, the neck, headaches, left index finger, right thumb and right knee.[75] She proposed that the plaintiff may require treatment and, in particular, for her neck, right shoulder and right knee, but not with any certainty that it would be required.
[75]She referred to all of them in her summary and assessment at PCB 101
56 Dr Flynn then specifically turned to the issue of the plaintiff’s right shoulder, and expressed the following opinion:
“Though Ms Tonta experiences some pain, she is independent in all personal activities of daily living. She described difficulty with activities that require use of the right shoulder such as dressing, driving a vehicle and lifting … She previously enjoyed swimming but is now unable to swim due to pain in the right shoulder girdle.”[76]
[76]PCB 97
57 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on 23 April 2018. Like Dr Flynn, he was aware of the different injuries concurrently producing the plaintiff’s pain and suffering consequences, namely, the neck, headaches, left index finger, and right knee.[77] He specifically turned to the issue of the plaintiff’s right shoulder and expressed the following opinion:
“… As one would expect, consequent upon this type of fracture and consequent upon a fracture involving the scapula, Mrs Tonta has been left with some restriction of internal rotation of her right shoulder. Consequent upon her injuries, she would note some difficult[y] with a lot of heavy activity using her right upper limb. No ongoing orthopaedic treatment is required in this regard. The injury is not associated with post-traumatic osteoarthritis of the shoulder joint in the future.”[78]
[77]PCB 113-114
[78]PCB 113
Conclusions
58 I have applied the framework for evaluating the plaintiff’s evidence referred to in Haden Engineering Pty Ltd v McKinnon;[79] in short, what the plaintiff says about her pain in her evidence, and to medical practitioners, what the plaintiff has done about the pain, what the medical practitioners say about the extent and intensity of the pain, and what the objective evidence shows about the disabling effect of the pain.
[79](2010) 31 VR 1
59 Of course, in applying that framework, it is relevant to identify the pain and suffering consequences produced by the other medical conditions which concurrently produce pain and suffering consequences for the plaintiff.
60 It is clear enough from the body of the evidence I have summarised that:
· The plaintiff suffers migraine headaches which cause pain, interfere with her sleep and require the use of Panadeine Forte for pain relief.
· The plaintiff’s neck injury is actively symptomatic. It causes her pain, interferes with her sleep, and has required physiotherapy treatment.
· The plaintiff’s right knee interferes with her mobility and, no doubt, caused pain. It required surgical amelioration, which appears to have largely resolved the more immediate impairment consequences that it caused. The plaintiff’s left knee appears to interfere with her mobility and also, no doubt, causes pain, but it is less of a problem for her than her right knee was early on.
· The plaintiff’s left index finger and right thumb interfere with manual function and, no doubt, cause her pain.
61 If it is permitted to aggregate these other medical conditions, then it is reasonably clear that there are other causes for the plaintiff’s interference with sleep, production of pain, need for medication and interference with manual function apart from the impairment of her right shoulder.
62 The ultimate question considered in Peak Engineering was whether the evidence enabled the consequences of the injury being considered as serious to be identified and evaluated.[80] In this case, I think they can very clearly. It is not the case that the other medical conditions cause more pain, more interference with sleep, are the only reason for the prescription of medication, and are more dominant in the production of pain and suffering consequences than the impairment of the right shoulder.
[80]Paragraph [64]
63 I have brought into account the extent to which the evidence demonstrates what the pain and suffering consequences of those other medical conditions are in determining which of the consequences contended for by the plaintiff, which I have summarised in paragraphs 27-28 above, are to be considered in determining whether the impairment of the right shoulder has consequences which are “serious”.
64 Giving proper account to the extent that the other medical conditions contribute to pain, interference with sleep, interference with manual function and result in the need for the prescription of medication I, nonetheless, conclude that the plaintiff suffered a major injury to her right shoulder, requiring a very serious episode of surgery to reduce the fractured clavicle, and to anatomically return it to its correct position.
65 I accept the plaintiff’s evidence that she suffers each of the impairment consequences which I have summarised. They are extensive, and intrude on nearly all aspects of her daily life. Her treating medical practitioners, and the medico-legal specialists, accept that she has an actively symptomatic right shoulder, although it is clear that the extent to which they accept that varies. I think the objective evidence of the medical practitioners who have commented on the gravity of the impairment of the plaintiff’s right shoulder and her husband’s evidence confirm for me that I should accept the plaintiff’s evidence.
What the Plaintiff has retained
66 The defendant submitted that the significance of what the plaintiff has been lost may be informed, to an extent, by what has been retained.[81]
[81]Dwyer v Calco Timbers Pty Ltd(No 2) [2008] VSCA 260 at paragraph [27]
67 The submission was primarily based on two parts of the evidence – the first was the fact that the plaintiff is still able to engage in some domestic, social and recreational activities said to be, to an extent, demonstrative of a return to a reasonable level of activity, and the second was directed to the plaintiff’s travel overseas.
68 In the course of my reasoning, I have acknowledged that the plaintiff obviously has retained a capacity to engage in a variety of activities, and among those are, for example, her ability to engage in yoga, Pilates and a return to a level of cycling; however, the retention of that capacity has not persuaded me that it overwhelms what the plaintiff has lost.
69 As far as the plaintiff’s travelling is concerned, the mere fact that the plaintiff has been able to travel, without any other evidence, I am not persuaded that the impairment of her right shoulder is something which would preclude travel. In summary, the plaintiff’s overseas travel since the occurrence of the transport accident is as follows:
· May 2013 – 104-day cruise through the Middle East and Europe which had been organised prior to the transport accident.[82]
[82]T26
· August 2013 – the USA to see her daughter.
· February 2015 – the USA to see her daughter.
· March 2016 – another cruise through Asia.
· 2017 – a cruise through the Mediterranean.
· June 2018 – Bali.
· July 2018 – Bali.
70 I think I can reasonably infer that travelling involves sightseeing and, perhaps, the movement of luggage; however, the impression I obtained from the plaintiff’s evidence is that the cruise in 2013 was fully catered for in all respects. My impression of the other overseas trips was absent any evidence which demonstrated that they were arduous in any respect, in particular, relevant to the persisting impairment of her right shoulder.
71 Lastly, the fact that the plaintiff has been able to engage in yoga, Pilates and dance, suggests a physical capacity to function which is against the grain of her evidence of the nature and extent of the impairment consequences which I have summarised above. It must be remembered that the plaintiff gave evidence that it is part of her self-help treatment. I accept that it is, and is necessary for her to maintain control over the pain and limitation of movement which she experiences with her right shoulder.
Final conclusions
72 On the basis of the foregoing analysis, I am satisfied that the plaintiff has suffered a serious long-term impairment or loss of function of her right shoulder, and I have done so after making the relevant comparison with like impairments.
73 I will grant the plaintiff the leave that she seeks to bring a proceeding at common law.
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