Tsotras v Opie and Westfield Shopping Centre No. DCCIV-96-1311 Judgment No. D41

Christina TSOTRAS v Patrick Opie and Westfield Shopping Centre Management
[1998] SADC D41

Civil
Judge Kitchen

On 19th November 1993, when the plaintiff was walking in the premises of the second defendant known as Westfield Shopping Centre at Tea Tree Plaza, a temporary gyprock wall which had been erected by the first named defendant fell and struck the plaintiff.
Both defendants admit that they are liable in negligence to the plaintiff for such injury, loss or damage she suffered or sustained as a result of the wall falling on her.
The plaintiff’s claim is that the falling wall injured her left shoulder, her cervical spine, the left rotator cuff, and injured the serratus anterior, and she later suffered a sequential injury to her right shoulder, all causing ongoing pain and suffering, disabilities and incapacities. The defendants do not admit that the plaintiff suffered the injuries and disabilities she claims and allege:-
·....... that such injuries as the plaintiff did suffer were temporary only and caused no disability or incapacity;
·that the plaintiff’s claimed disabilities and incapacities are caused by or alternatively are contributed to by injuries she previously suffered to her right shoulder in 1976 and to her cervical spine in 1989 or neck and shoulder injuries the plaintiff suffered in a motor vehicle accident which occurred on 3rd January 1994.
The plaintiff is 37 years old; she was born on 17th March 1962. After leaving school at the end of Year 10 she qualified, in 1980, as a hairdresser and then returned to Port Augusta to manage a hairdressing salon until, in 1982, she became pregnant. The plaintiff was out of the workforce for up to 12 months following the birth of her daughter, Helen, and then she obtained part-time work in a lunch shop which continued until, in the year 1984, she returned to work as a hairdresser initially part-time and then, after an interlude of six months when she worked as a domestic, she obtained full-time work in her trade at Top Notch Salon, the business of which she purchased after she had been working there for almost two years. The plaintiff sold that business in mid-1988 and then put her hairdressing skills to a different use working part-time as a sales representative selling hair products, in the course of which, in early 1989 she said, she hurt her back lifting a heavy box. That injury necessitated surgery which the plaintiff described as a “steroid epidural” at the hands of Mr. Hone, an orthopaedic surgeon.
Following her operation, the plaintiff described, she was fit for light duties but her employer dispensed with her services because of her inability to lift weights of 15 to 25 kilograms which her work required. The plaintiff then obtained work with Castrol Oil organising displays in service stations but after about ten weeks she was made redundant. The plaintiff said that at that time her back was okay; although sometimes she felt a “tingle” in her back it did not prevent her from working.
The plaintiff gave birth to a son in December 1990. She said that in 1991 she had further surgery performed on her back. In 1992 she obtained part-time work for three to four hours per week over a period of six months cleaning washing machines “for pocket money” but she said she intended to return to the full-time workforce. To that end, in 1993 the plaintiff undertook a sales assistant course through the offices of the Commonwealth Employment Service, learning skills concerning facsimile machines and cash registers which, I think, included a week’s training at Chandlers Electrical Store following which in November 1993 she was offered and took employment as a shop assistant in the cosmetic and make-up department of the Myer store at Tea Tree Plaza for 3 hours per day for 5 days each week for a period to end on 4th January 1994. The plaintiff’s evidence is that if she had been offered more work she would have taken it because she was looking for full-time employment - her income at the time was a supporting parent’s pension. The plaintiff said that earnings of up to $50 per week did not affect her pension but for earnings greater than that the pension she received would be reduced by 50 cents for each dollar earned.
The incident in which the plaintiff was struck by the wall occurred, the plaintiff described, shortly after she had completed her work for the day at the Myer store.
The plaintiff has an incomplete recall of the incident. She said that after she finished work in employment with Myer on 19th November 1993, which she had obtained a few days before, she visited the toilet, chatted for a short time with her co-workers, rode down an escalator and then made her way on foot toward Woolworths store in the Plaza. The plaintiff related that she has, she thinks, a recollection of seeing something “waving” in front of her “... and then my next recollection is all these people around me trying to take off my jacket and asking whether I was bleeding or not. ... I don’t even know if I fell, I honestly can only go by what people have told me. I don’t recall the actual incident at all ... I still have flashes of it to this day but it just won’t come to me. I wasn’t hit on my head so I was (sic) knocked out or anything, or was not unconscious at anytime I don’t think” (p.23).
The plaintiff described the object that struck her as a big wall or hoarding of a size she estimated by pointing to distances between windows in the courtroom.
The plaintiff said that immediately after the wall fell on her she experienced “much pain” in her left shoulder. She was comforted by a lady and that lady’s husband until a representative of the management of the shopping centre came to her and took her to Dr Ong, a general practitioner with rooms in the Plaza.
As I understand her evidence the plaintiff reported for and attempted to work at Myer on 20th November 1993 but she was sent home. Dr Ong referred the plaintiff to Mr. Fry, an orthopaedic surgeon who examined her on 25th November 1993 and put her off work for two weeks after finding that she was tender:-
“... over the left side of the neck from the base of the skull down to the top of the scapula and out to the shoulder top itself. And the left shoulder itself, the acromia clavicular joint appeared to be intact. But she was tender laterally over the head of the humerus, although movement seemed to be normal enough - when she elevated the left arm there was a mechanical click that was noticeable at 90 degrees of elevation from her side and there was associated pain with this. Her neck was stiff as well, she only had about 60-70 degrees of rotation in either direction and there was some limitation with pulling and pain and the same was true of angulation to either side. ... I thought that she had had neck strain; nothing terribly obvious, just a neck strain, a bit stiff as a consequence, a bit sore too. And I thought the left shoulder probably had some sort of subacrominal rotator cuff type injury; probably just a soft tissue thing again.” (p.146-147)

He wrote to the plaintiff’s physiotherapist suggesting measures to encourage her condition to settle and self-mobilisation when that occurred.

The plaintiff said that during the month of December her condition improved a little but she had little movement in her left arm and she was having difficulty coping with her two children because of pain in her neck, soreness around her left shoulder and she was experiencing shooting pains in her hand and elbow and tenderness and soreness in the area of her left arm-pit extending into her left chest to the breast bone.
Mr. Fry saw the plaintiff again on 9th December 1993 - he judged that the plaintiff’s neck had improved, and she had better movement but she reported she still had tension around the top of the shoulder area in the trapezius musculature and the left shoulder was still troubling her - it was coming and going. On examination the crepitus, catching and pain was the same as Mr. Fry had noted in his first examination so he injected some steroid and local anaesthetic into the sub-acromial area, the immediate effect of which enabled the plaintiff to elevate her left arm without symptoms of pain; from that effect Mr. Fry thought it confirmed his earlier feeling that the plaintiff had a soft tissue injury affecting the supra-spinatous region.
On 3rd January 1994 the plaintiff was on her way to Myer intending to try to resume her work there for two hours. The car she was driving collided with another car when the plaintiff was attempting to turn to the right from Main North Road into Grand Junction Road. The plaintiff was travelling in a lane which she believed, mistakenly, permitted her to turn to the right. The other car, which was travelling in the adjacent lane on the plaintiff’s right hand side struck the rear side of the plaintiff’s car “on the rear fender behind the driver’s door”, as the plaintiff veered to her right - the plaintiff’s car turned full circle during which, she said, she hit the right side of her head on the inside of her car. The plaintiff said that “everything all tensed up again and it was very sore. But after a time I was just left with what I’ve got today.” (p.27). The plaintiff said that the collision was entirely her fault, in her view she was not injured in the collision and she made no claim against the driver of the other car.
Before the motor vehicle accident an appointment had been made for the plaintiff to go to Alfreda Rehabilitation on 5th January 1994. She attended that establishment on that day and on the two subsequent days where she was examined by Dr Bastian, the senior registrar in rehabilitation medicine, but before those events occurred Dr Koe, the plaintiff’s general practitioner, referred her to Mr. Fry with a letter dated 4th January 1994, (Exhibit P13) which reads:-
“Will you kindly see the A/N who’s C/O pain neck, shoulder & upper back, headache & numbness (L) upper limb following a MVA on 3/1/93. (sic)
I understand she has consulted you in relation to an injury on 19/11/93 when a section of a wall fell on her.
She is going to Alfreda Rehab. for further management. Will you kindly see and do needful.”
Mr. Fry saw the plaintiff on 13th January 1994 after the plaintiff had been seen by Dr Bastian at the Alfreda Rehabilitation Centre on 5th January 1994 and the two succeeding days. Dr Bastian wrote to Dr Koe on 6th January 1994 (Exhibit P16) reporting on his examination of the plaintiff on 5th January 1994 as follows (inter alia):-
“Examination revealed a lady in moderate distress who only moved her neck minimally in rotation during the history taking. Cervical spine examination revealed markedly decreased range of movement in all directions, secondly (sic) to pain. Foraminal compression was difficult to perform due to the pain but reproduced her neck and shoulder pain and possibly also caused some tingling sensations down her left arm. Cervical spine was generally tender both centrally and over the paraspinal musculature. There was marked spasm/tenderness over the left trapezius and to a less extent the left parascapular musculature. Upper limb neurological examination was pain inhibited but tone was normal, power was 4+ -5 out of 5 in all groups and symmetrical as were reflexes. Sensation to light touch, vibration and temperature were intact. Lower limb examination revealed normal power tone and sensation to soft touch. Right shoulder examination was normal but left shoulder examination was inhibited by pain. There was, however, a sensation of clunking in the left shoulder which will need to be further examined at a later stage. In view of the severity of the clinical presentation and the history of a second accident, I think it appropriate to perform repeat cervical spine and upper thoracic xrays with flexion/extension views to exclude instability. In view of the history, one also needs to entertain a possibility of a discogenic lesion. I have advised her to wear a soft collar and to continue with the analgesia prescribed by yourself. I have cancelled the multi-team assessment and arranged for her to see the physiotherapist as an acute patient. I will review her again tomorrow to review the xrays and determine if further investigation is warranted.”

Dr Bastian saw the plaintiff again on 6th January 1994. He said (Exhibit P17) that on that occasion he:-
“... detailed there was evidence of winging of the left scapula on abduction and extension of the left arm. I raised the possibility of a peripheral nerve lesion (i.e. long thoracic nerve palsy) in view of the nature of the initial injury, that being a wall falling on top of the patient’s left shoulder. However, one may have a degree of winging of the scapula with muscle imbalance/pain inhibition. I note I have detailed there was a significant degree of left trapezius muscle spasm. In view of the severity of the patient’s presentation, I arranged for a review of the patient the next day with my, at that stage, senior colleague Dr Gary Clothier (Consultant in Rehabilitation Medicine). I note that in my entry on 7 January 1994, the patient was reviewed with Dr Clothier and that marked winging of the left scapula was again noted on flexing and abducting the left arm.”

He apparently wrote to Mr. Fry about his observations, including the “winging” of the left scapula.

Following his own further examination of the plaintiff on 13th January 1994 Mr. Fry wrote to Dr Bastian. His letter (Exhibit D10 p.20) included these paragraphs:-
“Her problem is essentially one of the motor accident having stirred up the underlying problem in the neck, which in general seemed to be a soft tissue thing before, fairly mild, possibly around some of the small joints there. She also has troubles with the left shoulder too, and these involve the capsular mechanism so that she is getting some clicking and pain. Before the accident occurred I injected the region with some steroid and local anaesthetic, unfortunately the improvement was all too brief.
When I saw her again at most recent review she was hunching her shoulder due to pain in her neck, and whilst the scapula appeared prominent it was not winging, there was in fact no sign of neurological abnormality and again signs were confined to pain and stiffness in both neck and shoulder. I suspect that there is some damage to the abductor mechanism of the shoulder which is best investigated now, and as far as the neck, which seems to have had simply an acute sprain, a period of rest with some basic physiotherapy for the soft tissues is worthwhile, after the usual settling of the acute pain occurs then her own active mobilisation again, as was being done before with a slow improvement, is also worthwhile. I shall see her again shortly.”

The issue of whether or not the plaintiff has this condition of “winging” and if so what is the cause of it became an important focus of the trial.
The serratus anterior muscle, which has a “fingered” configuration, stretches around the chest wall. It is attached at one end to the scapula and at the other to the ribs. The muscle, which protracts the scapula and holds it against the thoracic wall and also rotates the scapula, is served by the long thoracic nerve commonly referred to as the long nerve of Bell, or Bell’s nerve as it was sometimes called by the medical witnesses who gave evidence. Direct trauma to, or a viral infection of, the nerve can impair the function of the nerve, resulting in lack of stimulation to the serratus anterior muscle and therefore unrestrained movement of the scapula causing it to protrude or “wing” when the shoulder is mobilised in certain movements of the arm.
The plaintiff at her counsel’s request showed to the Court the movement of her left scapula on raising her arm to a position higher than parallel to the floor and to a point where, she said, she experienced pain and “it feels as if my arm is going to slip out of joint”. The left scapula protruded in the fashion to be seen in photographs (Exhibit P2) taken in May 1997, the phenomenon which some of the witnesses referred to as “winging”.
Mr. Fry referred the plaintiff to Mr. Maguire, an orthopaedic surgeon, who examined her on 11th February 1994 and 9th March 1994. I will return to his evidence later. For the moment I note he said that he did not see winging of the left scapula although he did see a prominence of the scapula which he judged to be caused by the plaintiff “lifting (the) levator scapula and trapezius”.
The plaintiff said that in 1994 she saw a number of doctors about her shoulder, underwent physiotherapy, an arthroscopy was performed by Mr. Hayes on her left shoulder and the plaintiff had what she described as nerve conduction studies. In the procedure which Mr. Hayes undertook, in September 1994, a spur was removed after which, the plaintiff related, there was some improvement in her left shoulder and arm movements at low levels and the “pinching” sensation abated so that she could raise her left arm higher than was the case before that procedure. She said that she had thought the procedure would “fix everything” but she did not fully recover her pre-November 1993 pain free mobility the reason being, as she understood what Mr. Hayes told her, that there was other damage the treatment of which would be by surgery. I will return to that surgical procedure later in these reasons.
The plaintiff said that in about May 1997 she began to experience pain in her right upper limb, her dominant limb, which as I infer from her evidence she was using to almost the total exclusion of her left arm. In October 1997 Mr. Hayes operated arthroscopically on her right shoulder performing what he described as a two-stage anterior acromioplasty for a sub-acromial impingement syndrome.
The plaintiff said that after November 1993 her emotional state was badly affected - “I feel like I’ve been to hell and come back” - she had just started work, she was she believed multi-skilled and she had positive feelings for the future but then her inability to work, and her experience of pain in and the limitations in movement of her left arm and neck caused mood swings which affected her and her relationship with her children. She has not worked since the incident on 19th November 1993 involving the temporary wall. In 1994 the plaintiff was referred by her general practitioner to Dr Flynn, a psychiatrist.
It appears that the plaintiff was under the care of Dr Flynn for about seven months in 1994 during which she was given a variety of medication. This information is contained in the report (it is Exhibit P9) of Dr Lucas, a psychiatrist, who saw the plaintiff on one occasion in November 1996 for the purpose of giving a report to the plaintiff’s solicitors. Dr Flynn was not called. From information obtained by Dr Lucas, and particularly the history of her mental state that the plaintiff related to Dr Lucas she experienced while in the care of Dr Flynn, Dr Lucas considered that the plaintiff was suffering from a major depression in 1994. By the time Dr Lucas examined the plaintiff he concluded she continued to be depressed. His diagnosis was dysthymia, a less severe type of depression than a major depression. Dysthymia as I understand is not itself disabling but it adversely impacts upon the sufferers general feeling of well-being. Dr Lucas’ opinion is that both the dysthymia and the 1994 episode of major depression were attributable to the plaintiff’s physical injuries, the future course of which will have the largest effect upon her mental state and it is possible she may suffer major depressive episodes in the future.
Dr Blakemore, also a psychiatrist, examined the plaintiff in March 1997 at the request of the defendants solicitors. His report is Exhibit D10 page 33. He concluded:-
“Ms Tsotras gives a history consistent with her having been very depressed in 1994, for an uncertain period of time, and a diagnosis of major depression, or adjustment disorder with depression, secondary to her physical pain and incapacities is likely to have been appropriate then. At the present time, while there may be some periods of time when Ms Tsotras is down, depressed enough by her symptoms to be described as suffering an adjustment disorder with depression again, this was not her presentation to interview, and no psychiatric diagnosis is presently applicable. Ms Tsotras’ very genuine presentation was of someone coping with a great deal of difficulty with continuing pain and disability.”

Dr Blakemore did not ascribe the term dysthymia to the plaintiff’s condition as he saw it when he examined her, and, as it appears in his evidence, it is not a term he would have used to describe the findings in Dr Lucas’ report. Dr Blakemore said (p.232) that dysthymia is a descriptive term for “a sort of depression which doesn’t fall into any other clear cut category”. His prognosis of the plaintiff’s emotional state “is really the prognosis of her physical condition, that is, she is likely to have some ups and downs of depression while she remains suffering a good deal of pain and disability. She may be helped to cope with it by psychotropic medication, but that is not something that Ms Tsotras was keen to attempt again”.

In about 1995 the plaintiff met and has since lived as man and wife with Christos Sideris. Before that arrangement, the plaintiff said, her daughter Helen had as she put it “become mum” attending to the needs of the plaintiff’s young son, an asthmatic and hyperactive child, whom the plaintiff was not able to manage because of her physical condition and Helen also carried out the tasks of hanging out washing and (with assistance from the plaintiff’s sister, and a lady provided by a community organisation and for a short time a cleaning lady sent by Myer) performed other household duties. After Mr. Sideris and the plaintiff set-up house together he, she said, adapted the clothes-line to a lower level, constructed a laundry near the clothes-line, lowered the height of the washing machine and built for her a meal trolley, all to avoid or minimise the plaintiff having to lift or carry things.
The plaintiff gave evidence of massage Mr. Sideris gives her from time to time, the impact of her painful neck and shoulder condition upon her sexual relations with him and the restrictions on her social activities brought about by pain and discomfort if she is seated for long periods.
In cross-examination the plaintiff was questioned about an injury she agreed she suffered to her right shoulder when she was young and playing hockey. Her stick became entangled with that of another player. She said she was in a lot of pain for some days. It was put to her that since she was 14 years old she has had recurrent dislocations of her right shoulder. She said she had never dislocated her shoulder but there was a second occasion when she experienced right shoulder pain and was unable to raise her arm higher than the level of her shoulder. She also spoke of an occasion in 1989 when, as I understand, following a fall when her right leg “collapsed” as she was rising to stand‑up, she consulted Dr Brown experiencing symptoms in her right shoulder such that she could not raise the arm to the height necessary to hold the steering wheel of her car. She agreed that the occupation of hairdresser which she worked in for 12 years was very demanding on the shoulders and arms but said she had no problems with those parts in her work as a hairdresser.
The plaintiff agreed that in March 1989 she may have told Dr Brown that since she was 14 years old her right shoulder had “gone out” or “been put out”.
The plaintiff related that the injury to her back in the incident in about February 1989 resulted in her being incapacitated for work, and she received weekly payments of compensation which, as I understand, continued to and beyond the job she obtained with Castrol (for eight to nine weeks) in late 1989. In January 1993 the plaintiff was paid a lump sum of $11,265 for an assessed 10 percent disability in her lower back. She said her back caused problems for some time and agreed she had told Mr. Lipert in March 1992 that she was capable only of doing light housework, that she had trouble handling her baby and that shopping aggravated her back. She says that now she experiences pain in her back only during menstruation.
The plaintiff elaborated upon what happened to her in the motor vehicle collision on 3rd January 1994. She said she hit the right side of her head against the inside of the car suffering what she described as an abrasion or small lump near the temple extending into the hair line “and everything just went all very stiff on my left side, on my neck and my shoulder”. A police officer drove the plaintiff home. There she felt a tingling sensation in her feet and she was nauseous. A doctor was summoned but because, as she was told, the doctor was concerned there may be concussion she was not given any treatment. The plaintiff summoned a doctor again in the evening and he gave her an injection of diazepan, pethadine and stemetil.
The plaintiff claimed from Myer, and was paid, workers’ compensation payments over a period of time from 4th January 1994. She agreed that her claim against Myer and the weekly payments she received were with respect to the motor vehicle accident on 3rd January 1994. The plaintiff said she completed the WorkCover documents in that way because that is what she was advised to do.
The plaintiff described the tasks she had to perform in the work she had at Myer. She worked in the general cosmetics area. She said it was a job of light tasks, many of which were well suited to her as a trained hairdresser with her other acquired skills, and many of which she would be capable of doing now, but it involved on occasions restocking shelves necessitating the use of a ladder to place and retrieve boxes.
Mr. Sideris said the plaintiff appears to him to have difficulty when carrying out all home duties but, particularly, she cannot lift things or vacuum without complaining of pain in the following few days after she attempts those things. He described that the plaintiff becomes emotional over small things, shutting herself away to cry. He spoke of massaging her shoulders and neck two or three times each day for up to half an hour. He said he had reduced by half his working hours in his occupation as a tiler and woodworker. He did not attribute that to the plaintiff’s condition. At the time of trial he was unemployed and in receipt of unemployment benefits. He said he helps the plaintiff by hanging out heavy washing to dry and that she does not do any tasks requiring her to raise her arms above the level of her shoulders. Those tasks, he said, are performed by others, the plaintiff’s daughter Helen or the plaintiff’s sister.
The plaintiff’s demeanour when giving evidence was that of an anxious person. She appeared to me to be neither evasive nor given to prevarication in answering questions. Her memory of events, in my view, is not very detailed or precise. She is much pre-occupied by her physical and her emotional state and in my assessment of her that has coloured her evidence of the impact upon her of her experiences including the incidents of the falling wall and the motor vehicle accident and she has exaggerated the consequences of those things. I accept the substance of her evidence concerning the pain, discomfort and limitations she described but I think she has, perhaps unconsciously, embellished her state in the more serious aspects she spoke of.
Mr. Michael Hayes is an orthopaedic surgeon. He examine the plaintiff on 14th June 1994 upon a referral by her then general practitioner Dr Marie Alexander. The plaintiff complained to Mr. Hayes of pain in the left shoulder region radiating into her thumb and “odd sensations” along the inside of her hand associated with pins and needles in that area. She complained also that her left hand seemed to swell, the shoulder was acutely painful on movement and she was unable to lie on her left side at night. On examination he observed that forward flexion and abduction lacked approximately 20 degrees of range with normal rotation and slight restriction in power. In his report dated 21st September 1995 (Exhibit P4) addressed to MMI Insurance, he wrote:-
“The most striking feature of the examination was a “winging” scapula but otherwise, the joint itself felt stable and I was unable to detect any other neurological complication.”

Mr. Hayes concluded that the plaintiff:-

“...had damaged the nerve to serratus anterior and had a crush injury to the rotator cuff mechanism itself. In addition, I thought the plaintiff had suffered from an injury to her neck and for this latter problem, I referred the patient to an Orthopaedic colleague, Dr Orso Osti, who saw Miss Tsotras and recommended mobilisation and manipulative treatment for the patient’s cervical spine and Dr Osti did not feel that there was any need to arrange further investigations in relation to this patient’s neck injury.
The patient was also referred to Dr Robert Hall, a Neurologist, and nerve conduction studies suggestion (sic) denervation of the long thoracic nerve of Bell.”

On 15th September 1994 Mr. Hayes carried out an arthroscopic assessment of the plaintiff’s shoulder, noting a degree of hypermobility:-
“Evaluation of the gleno-humeral joint revealed normal ligamentous structures with no gross instability pattern or evidence of a rotator cuff tear. Arthroscopic evaluation of the subacromial space revealed an inflamed and irregular coraco-acromial ligament with scuffing over the superior surface of the rotator cuff. This suggested an impingement problem and arthroscopic decompression of the subacromial space was performed. A spur was removed from the under surface of the acromion.”
Mr. Hayes reviewed the plaintiff post-operatively on six occasions to 25th July 1995 during which he observed she made a very slow recovery and reported to him on-going discomfort in her neck and shoulder. He referred her to Dr David McCallum, a consultant occupational physician.
Mr. Hayes explained the function of the serratus anterior and the effect upon it of damage to the nerve of Bell. He said it is a quite rare condition which he has seen in only four to six patients of the approximately 1,300 new patients he sees each year in his practice specialising in shoulder, elbow and hand injuries. He spoke of a surgical procedure he has read about, but which he has not performed himself, involving taking strong tissue from the side of the thigh, fashioning a tubular structure with it and attaching that “from the end of the muscle in the front of the chest wall to the lower aspect of the scapula at the back so it tethers it in place (which) in the best circumstance (does) improve the scapula movement in function and therefore tends to help chronic symptoms quite a lot ... ” and to probably improve a 30 percent loss of shoulder function (the plaintiff’s impairment) to about 10 percent loss of function, but he said the procedure would require three to six months convalescence and leave extensive scarring over the side of the thigh and on the chest wall.
It was seven months after the incident in November 1993 before Mr. Hayes first saw the plaintiff. He expressed the view that the wall falling incident caused the major injury and the motor vehicle accident was a secondary event although it interfered with the plaintiff’s recovery.
Mr. Hayes saw the plaintiff a number of times which he noted in his report dated 18th November 1996. In September 1997 the plaintiff reported to him that she had suffered from increasing discomfort in her right shoulder during the previous twelve months, with feelings of fatigue and tenseness the symptoms being aggravated by hanging out clothes or other household duties. His examination of the shoulder evinced sub-acromial crepitus. He had a report of an ultrasound study which had been carried out on 16th July 1997. That and his own examination brought him to arthroscopically assess the shoulder on 20th October 1997 in which he found extensive damage to the caraco-acromial ligament. He carried out a two-stage anterior acromio-plasty using arthroscopic techniques which improved the plaintiff’s symptoms. In his opinion the condition in the plaintiff’s right shoulder became apparent “because she has such a serious injury to her left shoulder and was extremely reliant on the right shoulder for all day to day activities”. In his view “I do not think the plaintiff should return to repetitive work such as hairdressing ... she has lost some 20 percent normal function of her right shoulder” being left with a residual aching associated with the repetitive use, overhead use and weather changes among other things (report Exhibit P6). In that same report Mr. Hayes noted that the plaintiff had injured her right shoulder in the motor vehicle accident on 3rd January 1994.
In his evidence Mr. Hayes confirmed his opinion that the plaintiff should not return to work as a hairdresser and were she to obtain employment in a sales capacity she should be selective in the work she does and avoid work above shoulder level, any heavy lifting or prolonged driving.
In cross-examination Mr. Hayes said he had been informed by the plaintiff about a back injury and some minor sporting injury. He had noted when operating on the plaintiff’s right shoulder that there was an anterio-inferior instability and extensive damage to the coraco-acromial ligament. He said that was not usually damaged in an accident but where there is some instability it can be secondarily involved “so that the ball rides up in the socket and therefore rubs on the shoulder, but it’s more predominantly involved when you have people who are working as hairdressers in particular ...”
Mr. Hayes was taxed with a report of Dr Brown dated 30th March 1989, (Exhibit D8) which was admitted into evidence by consent, in which Dr Brown wrote that “(the plaintiff) suffers from recurrent dislocation of the right shoulder, following a hockey injury at age 14”. Mr. Hayes said that the anterio-inferior instability he noted in the right shoulder is consistent with a history of partial or total dislocation of the shoulder but that may not be a pathological instability if the person has lax ligaments in which case the joints would be almost dislocatable and thus unstable “in other words it might go out of place which would be pathological for me, but it’s not for them” (transcript p.72) - he thought it to probably be “a subluxation which a lot of people have and cope with” (p.84). As I understood his evidence, a person with this condition of lax ligaments who also engages in, for example, the work of a hairdresser is at greater risk of suffering an impingement syndrome of the kind the plaintiff had in her right shoulder although the onset of symptoms is variable according to the age of that person and other factors such as their bony structure and blood supply. However Mr. Hayes repeated his view that in a case where there is an exclusive or greater use of one shoulder, that use can wear out the tendon where it is in contact with a “spur” and unless the spur is removed, as in the plaintiff’s case, ongoing damage may necessitate more major surgery to repair the tendon.
Mr. Hayes said that a diagnosis of a “winging” scapula may often be missed because the specific test for it is to have the patient press the arms against a wall upon doing which, if the condition is present, the scapula “pops out” in a very obvious way. Other movements of the arm to fully abduct or elevate anteriorly, he said, do not necessarily produce the “winging” phenomenon. He agreed that elevating the arm to be 45 degrees to the body may produce winging but he had never seen (as Mr. Cornish said he did in the plaintiff’s case) a patient who exhibited winging in that position but it was absent when, after the arm on the affected side is passively raised to 90 degrees, the arm is then returned to horizontal, and he had never seen nor seen reported “winging” being produced as a trick manoeuvre by a person with lax ligaments.
Referred to the observations made by Mr. Fry in his examination on 9th December 1993 and the injection into the plaintiff’s left shoulder on that day (Mr. Fry’s evidence of those things appears earlier in these reasons) Mr. Hayes said it was probable that the plaintiff’s source of pain on that day was the sub-acromio and not an injury to the long thoracic nerve. Mr. Hayes said he thought Mr. Fry a fairly good observer and if Mr. Fry saw no winging of the scapula on 13th January 1994 when the plaintiff performed for Mr. Fry the movement of pushing her arms against the wall, he agreed that any injury to the long thoracic nerve probably occurred after 13th January 1994.
Mr. Hayes identified a certificate signed by him on 24th January 1995 (Exhibit D7) certifying the plaintiff to be unfit for any work in the period 24th January 1995 to 12th April 1995; the certificate includes words to the effect that the plaintiff was suffering from a left shoulder injury which the plaintiff claimed was caused in, and which Mr. Hayes thought consistent with, the motor vehicle accident on 3rd January 1994.
Prior to that certificate Mr. Hayes had a history which he assumes he obtained from the plaintiff that in the motor vehicle accident on 3rd January 1994 “the car (the plaintiff was driving) was struck on the passenger’s side and as a consequence (the plaintiff) was thrown across into the passenger’s side of her car and injured her left shoulder” (see Exhibit P4). Mr. Hayes said that the information he obtained concerning the motor vehicle accident was “sketchy”, he was concentrating on the falling wall incident and the unusual problem the plaintiff had, the “winging” as I infer, for which she had been referred to him and the motor vehicle accident was not mentioned to him by the plaintiff until a subsequent consultation. On 5th January 1994 Dr Bastian recorded that the plaintiff told him her car had been “hit by another car at the rear right spinning the car around. (The plaintiff) apparently banged her head against the side window” (Exhibit P16). In his report (Exhibit D10 p.19) Mr. Fry stated he was told by the plaintiff on 13th January 1994 that “she was wearing a seatbelt, and at the time was doing a right-hand turn. The car was hit on the side and rear by another vehicle and spun about. She banged her head on the right-hand side window, was thrown to the left and got hurt”. Mr. Hayes said that in a letter dated 5th August 1996 from the plaintiff’s then solicitor he was told that the plaintiff’s motor car “was struck in the driver’s rear quarter panel by another motor vehicle, spun around approximately 180 degrees in that event, (the plaintiff) struck her head and right shoulder on the driver’s door window”.
The motor vehicle accident as recorded by Dr Bastian was related to him by the plaintiff within two days of it occurring, that description of it is more consistent with the plaintiff’s evidence and even if the plaintiff was in some way propelled to her left the seatbelt, which I accept she was wearing, would probably have restrained her movement in that direction to a large extent. Mr. Hayes had a different understanding of what occurred in the motor vehicle accident. For reasons that are not clear to me the plaintiff had been told by someone to identify the motor vehicle accident as the cause of her incapacity and Mr. Hayes, it appears, put his signature to the certificate Exhibit D7 in circumstances which included his then understanding of the events in the motor vehicle accident. The plaintiff said she did not know whether she told Mr. Hayes her car was struck on the passenger side and she was “thrown into the passenger side of the car and injured her left shoulder” but she may have said “as a figure of speech, (I) felt like I’d be thrown around” although she was wearing a seatbelt. I think it is more likely than not that the plaintiff used words to Mr. Hayes which Mr. Hayes interpreted in the way he recorded in his report, but I accept the plaintiff’s evidence of the events in the motor vehicle accident which is to the same effect as she related them to Dr Bastian and Mr. Fry. Except that it was on a later occasion than Mr. Hayes’ first consultation with the plaintiff, it is not clear when it was that Mr. Hayes was told by the plaintiff what had happened to her in the motor vehicle accident. However, and notwithstanding his certificate Exhibit D7, at the time he wrote his report Exhibit P4 on 21st September 1995 (which was many months after the date of Exhibit D7) Mr. Hayes’ then “impression” was that the wall incident was the major cause of injury to the plaintiff’s left shoulder and the motor vehicle accident was a “secondary event although it has interfered with her recovery”; (Exhibit P4).

Mr. Fry described winging of the scapula to be (p.150):-
“... an appearance of the left scapula, or any scapula, that results from paralysis of the serratus anterior muscle. It stands out like a wing. Instead of the scapula being closely applied to the chest wall and barely noticeable except in the muscular, it tends to stand away from the wall, and there is an obvious gap between the under surface of it and the chest wall. It’s noticeable. It looks like a flap sticking out.”

He said that in his examination of the plaintiff on 13th January 1994 he was specifically looking for winging because it was referred to in a letter dated 10th January 1994 which Dr Bastian had written to him. Mr. Fry described that at his request the plaintiff pushed against a wall with both her hands; that he said “is fundamentally a test of the serratus anterior muscle, if there’s a weakness it makes the winging of the scapula apparent.” Mr. Fry said there was certainly no winging exhibited by the plaintiff.

Mr. Fry identified the ways, in his opinion, in which an injury can be done to the long thoracic nerve. He said it is a very uncommon injury, which he had seen only once or twice in all his approximately 26 years in practice as an orthopaedic surgeon, although he expected shoulder surgeons would see more instances of it. The nerve originates in the spinal cord at level C5-6-7 and along its route via the base of the neck, the top of the shoulder and down the chest wall it is substantially protected from direct trauma by other structures until it appears on the surface of the serratus anterior where it is most vulnerable to, he exampled, a blow to the side of the chest when the arm is raised. He said injury to the nerve could be caused in a mastectomy, or by a direct trauma to the roots of the neck, or by a traction injury or most frequently by a viral infection. He was asked “is injury to the nerve of Bell seen in isolation”. He responded (pages 155 - 157):
“A.... Yes, it can be. As I say, if you get the post-operative breast surgery effect or you get some trauma to the side wall of the chest, yes, you can get it in isolation. I would think it would be very much more difficult to get it in isolation with any sort of trauma to the root of the neck area, where the root come because there are so many structures there that it would be very likely you’d get a combination of events rather than one single one.
Q...... Say for example there was a strategic blow which somehow missed the head and the shoulder and just came down somewhere at the base of the neck, what other nerves would be likely to be injured in those circumstances. The nerves from the - the third and fourth cervical nerves.
A...... Yes, you could get those. That’s one of the recognized ways of stopping people breathing isn’t it, it these super karate killer courses or something isn’t it, that you hit them there and they stop breathing, you kill them. that’s one way. You knock off C3 and C4, the frenic nerve effects, but you can certainly damage C5 and C6 because the roots are coming off at the same levels as this, so you will get a lot of arm paralysis effects.
Q...... And brachial plexus injuries.
A...... Yes, this is part - that’s the top part of the brachial plexus that we are talking about.
Q...... So is it your opinion if a discrete blow was delivered to the base of the neck area it would be likely to be - unlikely to injure the nerve of Bell in isolation.
A...... Yes, I would say so.
Q...... I want you to assume that the plaintiff was hit by this gyprock on the head and the point of the shoulder.
A...... Yes.
Q...... She describes being hit on the head and shoulders, could that in your opinion cause, in isolation, damage to the nerve of Bell.
A...... It’s theoretically possible I suppose because -
Q...... I’m asking theoretically could it cause injury in isolation.
A...... Theoretically I suppose, yes, but in practical terms I would have thought no, for all the reasons we’ve said really before. You would expect, if there was a traction injury and there would have to be a traction injury, because it couldn’t hit it by a blow, if a partition which is what you are referring to, came down, it’s a straight piece of whatever it was -
HIS HONOUR
Q...... When you say ‘traction injury’ you are contemplating what.
A...... The falling piece of whatever it was, struck on the shoulder and sort of dragged it down perhaps. That would be the nearest way that you could achieve trauma to it. You certainly couldn’t cause a blow to the nerve because if that partition is falling sideways it’s going to hit the shoulder as you say, it will also hit the head. And between the head the shoulder is a hollow, it can’t get into the hollow to hit where the nerve is running. Even if the whole thing is tilted right over you can’t get at it. So it couldn’t be a direct blow to it.
XN
Q...... With these injuries to the nerve caused by trauma are they evident immediately following the trauma.
A...... Yes, if you damage a nerve you will get effects straight away. I mean I am not saying this from personal experience of the long nerve of Bell because I just haven’t seen enough to be able to give you a personal rendition, but speaking generally, if you cause a nerve effect to any muscle the effects are apparent on the spot.”
Mr. Fry was taken in summary to the history of the incidents involving the plaintiff’s right arm or shoulder to and including the report of Dr Brown dated 30th March 1989 (Exhibit D8) and the evidence of Dr Brown in relation to that report. Mr. Fry expressed the opinion that the description of “recurrent dislocation of the right shoulder” indicated that the ligaments holding the shoulder joint were such that from time to time if an appropriate stress is applied to the shoulder:-
“(it) will at least sublux and may even, I don’t know which it is, the case as you say, even dislocate. Every time you do that of course you do a bit of damage to the lining joint surfaces. You can’t sublux or dislocate a joint repeatedly without getting some wear and tear and the local structures suffer accordingly” (p.158).

Asked whether if the fact be that the plaintiff since the early part of 1995 had done virtually no work around the house that would likely injure the plaintiff’s right shoulder, Mr. Fry said that the less the activity the less the likelihood of injury.

In cross-examination Mr. Fry agreed that in his examination of the plaintiff on 25th November 1993 and 9th December 1993 he was not looking for winging of the scapula, but said he put the plaintiff’s left shoulder “through a complex range of motion” and if there had been winging “you can’t miss it”. Later (in re-examination ) he said that on the occasion of each of his five examinations of the plaintiff he did not see any evidence of winging, stating that such a condition can be so obvious “... you can’t miss it at 20 yards. But the degree of winging can vary enormously. It depends on how bad the paralysis (of the nerve) is. The paralysis does not have to be absolute and total it’s not an all or none phenomenon, you can have degrees and degree.” (p.178). He explained (in cross-examination) that the prominence of the left scapula, but not winging, he noted and mentioned in his report to Dr Koe was a consequence of the plaintiff hunching her shoulder (p.180).
Mr. Fry subsequently saw the plaintiff on 3rd February 1994 (when he did not examine the plaintiff but ordered the discontinuance of physiotherapy the plaintiff was then undergoing) 10th February 1994 and finally on 22nd February 1994. On that last occasion the plaintiff told him her neck was a lot better, there was still soreness at the top of the left trapezius and she still had a lot of headaches; he observed the plaintiff’s left shoulder was “noisy” and there was pain on elevation of the arm to 90 degrees. He agreed his view then was that there had been no significant change since he had first seen the plaintiff in November 1993 and the plaintiff required the services of an orthopaedic surgeon specialising in shoulders; he said that the arthroscopic procedure which Mr. Hayes carried out in September 1994 “followed logically from what I had found and treated” and was consistent with the type of injury which Mr. Fry considered the plaintiff had suffered in November 1993.
The plaintiff had operative and other treatment for the injury she suffered to her back in February 1989, the box lifting incident. She was seen by Mr. Hone and Mr. Lipert. Exhibit D10 page 5 is a copy of a report by Mr. Hone dated 25th July 1989. That exhibit also contains three reports dated 24th June 1992, 26th June 1992 and 2nd December 1992 by Mr. Lipert. Mr. Lipert was called by the defendants.
In Mr. Lipert’s opinion the plaintiff by November 1992 had some bulging of the L4-5 and L5-S1 discs attributable in part to her injury in 1989, that the effect of that condition in her lower back fitted the plaintiff only for light to medium work, not involving any overhead or lifting work, and that hairdressing work would not be appropriate for her because that would put a strain upon her back and also standing for long periods of time would affect the plaintiff’s back.
Mr. Cornish is an orthopaedic surgeon. He examined the plaintiff on 4th March 1997 and 10th February 1998 at the request of the defendants’ solicitors. His reports dated 5th March 1997 and 12th February 1998 (both in Exhibit D10) formed part of his evidence.
In his first report Mr. Cornish noted the substance of the plaintiff’s history to that time and summarised his clinical examination of the plaintiff; his clinical observations included:-
“Neck movements are markedly restricted in all directions and are carried out with the impression that pain is being anticipated. Muscle tone/spasm is conspicuous. In examining the shoulder girdles, there is a marked droop of the left shoulder with a prominence in the posterior triangle due to rotation of the scapula producing an elevation of the superior angle and depression of the glenoid. This can be corrected by placing hands on hips and actively pushing down possibly mediated through pectoralis minor. Active forward flexion is about half the normal range but abduction is limited to 30 degrees and the attempt produces further decompression of the contour of the scapula in addition to increased pain. Internal and external rotation are also limited on the left side. I was not able to find any other abnormal features in the upper limbs.”

In paragraphs under the heading “comment” Mr. Cornish wrote:-

“The condition of winged scapula is considered to have almost certainly arisen from the initial injury of 19/11/93. To consider its initiation or aggravation by the vehicular accident would be difficult to accommodate in terms of the nature of the accident where in all probability she would have been thrown to the right side of the vehicle and the seat belt restraint would have largely been to the right shoulder with traction or pulsion effects confined to this side.
The dominant feature of clinical examination is the gross deformity weakness and inconvenience of the “winged” left scapula due to paralysis of the serratus anterior muscle.
There may be pain states emanating from other sources such as the cervical spine, left shoulder and lumbar region but these are very much secondary to the central pathology affecting the position and stability of the left scapula which in its turn severely comprises left upper limb function and all activities of daily living. She is right hand dominant.
...
Certainly the level of pain accompanying the deformity and the loss of function is in excess of my recall of previous similar cases.
It may be that a second opinion is required in this context as the condition is unusual and treatment complex.”

Mr. Cornish examined the plaintiff again on 10th February 1998. On that occasion the plaintiff told him she continued to experience the same level of weakness in the left scapula region and that the function of the left shoulder was unchanged from that in March 1997. She also told Mr. Cornish of increasing discomfort in the right shoulder region since March 1997 - she said she could recall her right shoulder and her head striking the side pillar or the window of her car in the motor vehicle accident on 3rd January 1994. On examining the plaintiff Mr. Cornish noted (report dated 12th February 1998 Exhibit D10 p.29):-
“Whilst movements in the neck were full in flexion, extension and turning were both mildly limited and in traversing the range there was a staccato-type movement. She complained of interscapular pain at the time. The shoulders display symmetrical contours and in the resting position; there is now no hint of winging of the scapula and in fact it is my very strong impression that the muscle function has significantly improved. The winging component can be well demonstrated but in arriving at the position of the left arm in the forward position there are times when winging does not occur and whilst I was unable to specifically feel the active contraction of the slips of serratus anterior muscle, I am confident that there is a significant level of function present. A full range of passive movement is present in the left shoulder.”

In passages under the heading “Summary and Conclusions” Mr. Cornish wrote:-

“In summary, since the previous examination of 11 months ago, acute symptoms developed in the right shoulder which led to surgical decompression 4 months ago with some improvement still occurring. It is also my view that the previous level of disfunction in the left shoulder has diminished.”

and he discussed the aetiology of the plaintiff’s right shoulder condition, put to him in the letter from the defendants solicitors (Messrs Lawson Downs) to be that the reliance on the use of her right shoulder caused injury to that shoulder or there was an underlying degenerative state (p.198). On that topic he wrote:-

“I would have extreme difficulty in placing particular emphasis on one as against the other. There is of course a third factor - that is the potential for a pre-existing although probably asymptomatic condition to have been present - in the form of sub-acromial bursal thickening which has been demonstrated in both shoulders and of course both have now been the subject of surgical decompression. On balance, I would suggest that of the two causative conditions advanced, in so far as they are contributing, they equally share aetiologically.”

In his report Mr. Cornish expressed the opinion that the plaintiff would have significant limitation in working as a hairdresser, but:-

“In the general labour market, on the basis that there is a perceived improvement in the left shoulder and there is now a potential for significant improvement in the right side, there is a broadening potential for employment certainly in bench-level activities such as process work, assembly etc. Such a potential was not explored in any way during the consultation.”

In his evidence Mr. Cornish said that in his examination of the plaintiff in February 1998, the plaintiff produced winging of the scapula on lifting her arm forwards from the resting position at the side “but this was not sustained when the arm was forwards having arrived at that position from other elements of posture, such as from the arm being elevated by abduction above the head”, abduction he noted being almost full. In his view were the impairment to the nerve of Bell complete the classical limitation is that the patient “is unable to bring the arm forward, and certainly unable to sustain any pushing element with the arm”. He was asked if it is consistent with paralysis of the nerve of Bell that the patient can almost fully abduct the arm; he responded (p.192):-
“I can’t be absolute on that. I can imagine that if it was somewhere in the straight lateral or even behind it might be possible to get it up most of the way but the thing is that if it’s paralysed every time that muscle is asked to function it has the same feature. It doesn’t occur when the position is arrived at from one avenue, so to speak, and then there’s a difference when the same position is arrived at by another method”.

and opined:-

......... because the plaintiff on bringing her arm from the near fully abducted position to the forward position did not exhibit winging of the scapula, that indicated to him that the serratus anterior muscle at that time was sustaining the scapula in its normal relationship;
.that the plaintiff’s scapula winged in raising her arm to the forward position signified to him it was possible “it’s a voluntarily suppression of serratus anterior function. In other words a deliberate projection of the scapula backwards” (p.192) which he said (p.208) is “a well known parlour trick.”

In his opinion a paralysis of the nerve of Bell would have prevented the plaintiff from raising her left arm in the way Mr. Fry said she did on 9th December 1993 following the injection of anaesthetic, that manoeuvre being demonstrated to Mr. Cornish by counsel for the defendants as being “straight up in the air alongside her head”. He said that if the nerve were damaged in an incident where something collapsed on the plaintiff’s head and shoulder the damage would be noticeable immediately.

In cross-examination Mr. Cornish was shown the report dated 26th August 1994 (Exhibit P14) of Dr Hall, a neurologist, in which Dr Hall concluded that electro-physiological studies he conducted confirmed “chronic partial denervation in the left serratus anterior consistent with the clinical signs of a long thoracic nerve of Bell lesion”. Mr. Cornish said that he “completely accepted” that at the time Dr Hall did his tests there was an organic loss of function in Bell’s nerve. He agreed that each of the four photographs Exhibit P2 showed winging of the plaintiff’s left scapula, more obviously in some than others.
Mr. Cornish’s opinion is that the extent of the paralysis in serratus anterior depends upon the extent of the denervation of Bell’s nerve. There was this exchange between Mr. Cornish and the Court (p.205)
“A.... On the second occasion I was quite convinced there was a very significant difference, there was significant function in that - anterior. Now, whether I missed that significant function in the first occasion, I can’t be sure, but certainly there was a significant level of function present on the second occasion.
Q...... And your opinion as to the possible reason for that.
A...... Either it was a lesion which was recovering or is recovering. That’s very consistent with this partial background. The aetiological factors have some bearing on it, but in the viral ones it is my understanding - I mean they’re quite rare these things - have a greater capacity to recover than say a traumatic event which from the time of injury is fixed and constant and doesn’t seem to recover. I just make the point that regrowth down nerves is really a factor of distance and certainly the lower parts of the - anterior those nerves have got a long way to travel, many centimetres.
Q...... What are you saying that some trauma which physically interrupts the nerve path may or may not heal.
A...... The understanding of trauma is that it’s maximal at the time of injury. Recovery tends not to occur so that one, therefore, favoured or looked at other causes and of those I think the viral one is probably the most likely.”

and he would not have expected the improvement he observed in February 1998 were the partial denervation of Bell’s nerve, which he accepted was present in March 1997, to have been caused by a traumatic injury, the general view from his readings being that the effect of such an injury is immediate and “tends to be constant”.

The issue as to the existence and the possible origin of the winging scapula as a sign of denervation of Bell’s nerve was explored in some depth with Dr Hall and Dr Hallpike who were called by the plaintiff and the defendants respectively following, or as a consequence of, a ruling by the Court to grant the plaintiff’s application to call Dr Hall to give evidence, the plaintiff’s counsel having closed her case subject to the tendering of Dr Hall’s report, which was MFI P14, and upon the contents of which Mr. Hayes had relied in giving his evidence. The defendants objected to the report being received. Both counsel made submissions upon the question of the report being received as evidence of it contents; the defendant complained that the report had not been disclosed to the defence as an opinion upon which the plaintiff would rely and submitted that the plaintiff being, amongst other things, in breach of the Rules concerning expert reports she should not be permitted to call Dr Hall. Having heard counsel I granted the plaintiff’s application on terms that the plaintiff pay the costs thrown away by reason of the adjournment which became necessary so that Dr Hall could be called and the defendants, as they wished to do, might obtain an opinion from their own neurological expert, Dr Hallpike as it transpired. In the result reports were obtained from each of Hall and Hallpike and exchanged between the parties and also Dr Bastian and Mr. Maguire were called by the plaintiff and the defendants respectively.

Before reviewing the evidence of Messrs. Hall and Hallpike it is appropriate to deal briefly with the evidence of Dr Bastian and Mr. Maguire.
Mr. Maguire, an orthopaedic surgeon with a special interest in shoulder surgery, saw and examined, or tried to examine, the plaintiff on 11th February 1994 and 9th March 1994. The history he took from the plaintiff on 11th February 1994 and her complaints were substantially the same as those given or made by the plaintiff to other examiners to that time. Mr. Maguire on examination found that the plaintiff appeared to have spasm of the left trapezius, elevated her left arm to only 90 degrees, he judged she had full passive movement in the left shoulder and he noticed an occasional clunk. He arranged for an ultrasound of both shoulders the results of which were that the right shoulder was considered normal but in the left there was a very slight impingement of the supra-spinatus anteriorly. He had those results with him when he examined the plaintiff again on 9th March 1994; on that occasion the plaintiff complained of an ache in the left trapezius and the levator scapulae and Mr. Maguire noticed a fullness and some swelling within the muscle. He said that this time the plaintiff could lift her left arm sideways to only 70 degrees actively, lifted actively 90 percent forward and passively “she got to 120 degrees and she said it feels like it’s jamming”. He said he did not see any winging of the scapula “but she was holding her scapula high, causing prominence of the shoulder blade, that’s done by lifting your levator scapulae and trapezius” which he said may have been a voluntary action or due to spasm. Winging of the scapula, Mr. Maguire explained, can be seen when the patient is observed from the rear (which is the position from which he said he observed the plaintiff) and “the patient lifts their arms, but she wouldn’t lift beyond 90 degrees” (p.301). He described that the prominent appearance, the protrusion, of the plaintiff’s left scapula was at the top, not the inner border which is the case where there is winging due to injury to the nerve of Bell. Mr. Maguire did not make a diagnosis of the plaintiff’s signs and symptoms; “I believed she was undiagnosable because she was over-reacting”.
In cross-examination Mr. Maguire described the movements he asked the plaintiff to perform as part of his examinations. He said the plaintiff complained bitterly of pain and therefore, as I understood his evidence, he did not persist with the full examination he had intended - he remarked “she was not examinable when I saw her. She wasn’t co-operative enough to examine her, and it would have been impossible on clinical grounds to do the impingement test, which is painful”. I think it is the case that, because of the plaintiff’s reaction during examination, Mr. Maguire’s opinions based on his observations cannot be given any great weight, particularly in light of the difficulty, which Dr Hallpike spoke of, in making a clinical assessment of the presence of winging. Further, it does not appear from any of the material before the Court whether or not Mr. Maguire was on the look‑out for winging.
In 1994 Dr Bastian was a senior registrar at Alfreda. The plaintiff was referred to Alfreda by Dr Koe. She was seen by Dr Bastian on 5th, 6th and 7th January 1994. On 6th January 1994 Dr Bastian wrote to Dr Koe (Exhibit P16). Dr Bastian said that that letter was dictated on 5th January 1994 the day he first examined the plaintiff. He said that examination was difficult because the plaintiff was in quite severe pain and he arranged to see her the next day after further x-rays of the plaintiff’s cervical spine had been done. In the first examination he noted the plaintiff had neck and left shoulder pain. Dr Bastian has no recollection of the plaintiff but he had a copy of the notes he made of his examinations, from which he said that in his examination on 6th January 1994 he “detailed there was evidence of winging of the left scapula on abduction and extension of the left arm” which raised in his mind the possibility of a long thoracic nerve palsy. These observations are contained in a report he wrote to the plaintiff’s solicitors on 6th June 1998 (Exhibit P17) which formed part of his evidence. On 7th January 1994 Dr Bastian brought in Dr Clothier, a colleague of his and Dr Clothier was present when Dr Bastian on that day again observed winging on the plaintiff flexing and abducting her left arm; he said he saw the same thing on 9th January 1994. From the history he took from the plaintiff concerning the falling wall incident and the motor vehicle accident (it is set out in Exhibit P16) in his opinion the winging he saw was a consequence of direct trauma to the left shoulder in the first incident.
In cross-examination Dr Bastian said that the plaintiff was in less pain on 6th January 1994 and he was able to examine her left shoulder in more detail by moving the plaintiff’s arm into abduction and flexion during which he noted the winging of the left scapula. He made a tentative diagnosis of soft tissue injury to the neck and shoulder and “I raised the issue of direct trauma to the left shoulder and I also felt there may be underlying nerve problems concerning the winging of the scapula”, the latter “requiring further investigation because one can get winging of the scapula with muscle imbalance or muscle spasm” (the plaintiff he said had spasm of the trapezius) “and hence one has to try and clarify the actual cause of the winging by further investigation” (p.254). He made a note for electro-myogram/nerve conduction studies but, as I infer, those were not pursued because, having referred the plaintiff to Mr. Fry, Dr Bastian had no further contact with the plaintiff after 9th January 1994 and she did not return to Alfreda.
Dr Bastian completed his studies in occupational medicine in about December 1993. He said that prior to seeing the plaintiff he had seen one or two patients who presented with winging of the scapula when he spent two years in the outpatient department of the Queen Elizabeth Hospital working under the supervision of orthopaedic surgeons and musco-skeletal specialists.
Dr Hall is a specialist neurologist. In August 1994 he carried out electro-myography (EMG) on the left serratus anterior of the plaintiff at the request of Mr. Hayes. He said that the serratus anterior is not a muscle that is routinely sampled, he had done it on only three or four occasions - “it’s not a test that I do when I see patients that are actually referred to me with a shoulder problem and I make a clinical diagnosis of a serratus anterior palsy. I only do the test when it’s specifically requested and in this situation (the plaintiff) was referred not for a clinical examination or history taking or an opinion but simply for the test of the muscle” (p.259). Dr Hall said that he took a brief history from the plaintiff and performed a very focussed examination of the shoulder before doing the EMG. He said the signs on his examination were entirely consistent with a serratus anterior palsy - there was winging of the left scapula, the plaintiff could abduct her left arm at the shoulder to about 90 degrees and flex it to about 145 degrees.
Dr Hall’s report dated 20th May 1998 (Exhibit P19) formed part of his evidence. That report sets out how an EMG is performed and also expands upon his report dated 26th August 1994 (Exhibit P14) in which he summarised what he observed in the EMG and concluded that those observations confirmed a chronic partial denervation in the left serratus anterior consistent with the clinical signs of a long thoracic nerve of Bell lesion. The phrase “partial denervation” means the nerve is in continuity but the serratus anterior had partly lost its nerve supply, and the word chronic meant that the loss of nerve supply was more than a few weeks old
Dr Hall’s report Exhibit P19 included the following observations or opinions:-
......... a partial denervation of Bell’s nerve may be a consequence of viral infection or direct trauma but regardless of the aetiology the winging of the scapula generally appears within a few days of the onset of shoulder pain;
.recovery from partial denervation is related more to the severity of the injury than it’s cause, and recovery may occur over a few weeks or months or even up to two years but recovery may be incomplete;
......... when the condition of partial denervation is present, abduction of the arm at the shoulder and raising the arm in front of the body are often restricted or performed with difficulty and winging of the scapula will be seen in most arm movements at the shoulder but particularly when raising and lowering the arm in front of the body and when the outstretched hand is placed against resistance.
Dr Hall said that he has seen quite a number of patients with serratus anterior palsy. From his reading of the specialist literature it is a condition that can be caused by a blow to the shoulder but he has not had a case that he could accurately relate to trauma.
In Dr Hall’s opinion the fact that the plaintiff showed signs of ongoing serratus anterior palsy some nine months after the onset of her symptoms indicated that the plaintiff had sustained axonal damage rather than neuropraxia where the nerve recovers within a few weeks to months. He explained neuropraxia to be a bruising to the outer coating of the nerve, the myelin. If the axons are damaged they “will have to grow back down the nerve from the site of the injury that can take up to a couple of years and the process may be incomplete, may not occur or recovery may be incomplete” (p.264). In his opinion there would be no likelihood of any further recovery if winging of the plaintiff’s left scapula was evident in May 1998 and it is likely there is some permanent damage to the long thoracic nerve.
In cross-examination Dr Hall said he did not carry out a nerve conduction study, that is apply an electric shock at the brachial plexus and record the elapsed time before a response at the serratus anterior. He described the steps in performing an EMG - the placing of an electrode in a muscle, in this case the serratus anterior, and observing the electrical activity displayed on an oscilloscope. At rest the plaintiff’s muscle displayed no activity; upon contraction of the muscle Dr Hall observed a reading of 600 microvolts which he described to be within normal range.
It was put to Dr Hall that it is almost impossible to traumatically injure the long thoracic nerve in isolation. He responded (p.267-269):-
“AAs I said, I haven’t personally seen a case but there are cases reported in the literature where this nerve can be injured in isolation by trauma to the shoulder, downwards pressure on the tip of the shoulder, traction on the arm.
Q...... And the case is reported at the sort of cases where say a porter is carrying a rope over the shoulder or something like that.
A...... There are cases reported as such carrying heavy backpacks or weights on shoulders but there have been other cases where people have been struck by blunt trauma on the tip of the shoulder or where they’ve fallen heavily on the shoulder.
Q...... Would it be usual to see injury to other nerves with trauma to the shoulder.
A...... It is possible that other nerves could be injured but I don’t believe there was any evidence of that on my limited examination.
Q...... But what I am suggesting to you is that in the case of trauma it would take a highly selective injury to merely injure the serratus anterior and not cause injury to other nerves.
A...... I don’t believe so because the long thoracic nerve is a long nerve and it can be affected by traction particularly as it passes over the second rib, whereas the nerves to other muscles around the shoulder girdle are shorter and are more protected in that sense.
Q...... Is there any test that could ascertain if there was a distinct location of the interference to the supply by the nerve.
A...... No, there’s no test that I could suggest that would localise -
Q...... Approximately how many cases of damage to the serratus anterior in isolation have you seen over the years.
A...... I think I would have seen at least a dozen, possibly more.
Q...... This is the only one in which trauma was alleged.
A...... As far as I can recall, yes.
Q...... Is it fair to suggest that to carry out an EMG study of the serratus anterior muscle is a difficult procedure.
A...... Yes.
Q...... Is this because of the nature of the muscle.
A...... I think it can - the muscle can be accessed reasonably reliably if you follow landmarks. But I think it’s one, as I said originally, it’s not a nerve or a muscle that is routinely tested because the diagnosis is made on clinical grounds. So I think most neurologists don’t have great experience in studying the muscle or the nerve.”
Dr Hall said that if Mr. Fry’s description of what he did on 9th December 1993 and his observations concerning the plaintiff on that day were correct he would have to agree that on 9th December 1993 the plaintiff did not have any problem in relation to serratus anterior although in re-examination he said the injection which Mr. Fry gave the plaintiff on that occasion could have improved some musculo ligamentous type injury and it is possible for there to be a co-existing soft tissue injury and damage to Bell’s nerve.
Dr Hallpike is a consultant neurologist. His report dated 20th June 1998 (Exhibit D20) formed part of his evidence. He has not examined the plaintiff.
Dr Hallpike has held a number of significant appointments in his speciality. I found his evidence including the contents of his report to be most helpful in explaining the intricacies of the function of the serratus anterior in shoulder movement and the properties of the long thoracic nerve. His description of those things and his explanation of the basis for his opinions were clear and bore all the marks of a person thoroughly versed in his specialty. I draw the following facts from his evidence in chief:-
......... that a test by EMG of the serratus anterior muscle is not definitive of denervation because the muscle has little bulk and it is difficult to test in that way; it is hard to be sure that one is getting a representative sampling. An EMG can give an indication of abnormality however the precise nature and cause of the abnormality requires that there also be a nerve conduction study;
.the key functions of the shoulder that reflect serratus anterior weakness is flexion of the arm upwards and also pushing the hands, arms out stretched, against a hard surface, the observer standing at the rear of the patient looking to see whether or not the scapula wings, that is comes away from the chest wall. It is particularly the flexion movement which demonstrates winging. If it is more apparent in abduction, that indicates a trapezius weakness rather than a serratus anterior weakness;
......... winging can occur in the absence of neurological abnormality but that is particularly so in young thin subjects and it is always bilateral although one scapula is usually a little more obvious than the other;
.the structure of the shoulder is very complex and the identification of the degree of winging on clinical examination can be difficult, so that testing the arm in one way and then another can produce considerable variations in the prominence and apparent position of the scapula;
......... injury to the long thoracic nerve by direct trauma can occur but it appears to be uncommon and injuries to the nerve are not likely to arise above the level of the clavicle.
In his evidence Mr. Fry agreed it is theoretically possible that injury to Bell’s nerve could be caused, without injury to another nerve or nerves, by a traction injury, that is for example a falling gyprock wall striking the shoulder and dragging it “down”. Dr Hall spoke of some 12 or more cases in his own experience where Bell’s nerve had been injured in isolation and although, aside from this plaintiff’s case, none had been ascribed to trauma, cases had been reported in the literature where the victim had been struck on the tip of the shoulder or had fallen heavily on the shoulder, either of which, as I understand, can exert downward pressure on the shoulder causing a traction injury to Bell’s nerve. Dr Hallpike, as I understood his evidence, agreed that he could not exclude an injury to Bell’s nerve being caused by a gyprock wall striking the top of the shoulder. In that context he was referred to an observation in Brain; Diseases of the Nervous System (a work he had cited in his own report) that “the nerve which supplies serratus anterior is injured alone most frequently as a result of pressure upon the shoulder either from a sudden blow or from the prolonged pressure of carrying weights on the shoulder”; Dr Hallpike did not question that statement but said “the thing about a direct blow is, talking about a none penetrating injury that would, high force focussed in a very small area which is the sort of concept one has of a direct blow as opposed to a tearing injury or a straining injury, traction injury is that there’s bruising and there’s considerable evidence of a local injury of some sort.” (p.289).
There was some apparent difference of opinion between Dr Hall and Dr Hallpike upon the significance of the results Dr Hall recorded in the EMG he conducted and, as I understand the evidence of each of them, whether the EMG construed in the context of the plaintiff’s signs and symptoms in 1994 and subsequently indicated axonal damage or neuropraxia. However, Dr Hallpike said that upon all the information with which he had been provided (it is listed in his report Exhibit D20) and he having the highest respect for Dr Hall and Mr. Hayes he had no reason to doubt that the plaintiff has “some form of problem to do with the serratus anterior and the long thoracic nerve of Bell” (p.295) the issue, to his mind, “being the relationship of it to any putative causative lesion and the extent of the lesion”. He said he had no adequate information concerning the motor vehicle accident in which the plaintiff was involved in January 1994 and he had not been asked to consider whether that incident had damaged the plaintiff’s Bell nerve.
The evidence of the several medical witnesses upon the topic of the mechanism by which physical trauma to or involving the shoulder may cause injury to Bell’s nerve leads me to find that the events of the motor vehicle accident on 3rd January 1994 as described by the plaintiff, and which I accept, did not include any force or pressure to the plaintiff’s body likely to cause injury to Bell’s nerve on her left side.
Mr. Cornish said that were there to have been a paralysis of the plaintiff’s Bell’s nerve at the time Mr. Fry injected anaesthetic on 9th December 1993 the plaintiff would not have been able to raise her left arm in the manner Mr. Fry described she did. However, both Dr Hall (at p.271) and Dr. Hallpike (at p.297) said in effect that such movement of the arm by the plaintiff did not mean that there was no damage to Bell’s nerve present at that time.
Mr. Fry stated that he did not see winging of the plaintiff’s left scapula on any of the occasions he examined her, but he did record that the scapula “appeared prominent” and said “the degree of winging can vary enormously ... you can have degrees and degree”. Mr. Fry judged that the prominence he saw was caused by the plaintiff hunching her shoulders. I have earlier mentioned the evidence of other witnesses that observing whether or not a scapula is winging is difficult. Dr Hallpike spoke of his own experience, including going to the extent of marking the three corners of the scapula in order to observe whether there is winging and if so the degree of it.
The observations made by Mr. Cornish in his examination of the plaintiff in February 1998 that winging of the plaintiff’s left scapula was not sustained in a movement he described and that in his view it was possible the plaintiff was deliberately projecting her scapula backwards, were put to Dr Hallpike. Dr Hallpike, while acknowledging that the interpretation of observations is a matter of clinical judgment, couched his response in phrases that referred to the difficulty with interpreting whether or not the winging phenomenon “is made up or not made up” commenting that he has seen considerable variations in individual cases and that in his view reports of persons deliberately projecting the scapula may well be anecdotal. That opinion, together with the views expressed by other medical witnesses on the topic, leaves me to reject the possibility that the plaintiff engaged in the “parlour trick” mentioned by Mr. Cornish, although it is significant in my opinion that Dr Hallpike said “I gained the impression that there can be little doubt that there has been a process of recovery” referring as I understand his evidence to the observations of numerous examiners in the reports he has read or the evidence of those reporters.

Mr. Hayes and Dr Hall both of whom, as I accept, have experience of the relevant condition observed winging of the plaintiff’s left scapula in June and August 1994 which Dr Hall judged to be caused by partial denervation of Bell’s nerve. Dr Bastian on 6th, 7th and 9th January 1994 observed what he described as quite marked winging of that scapula, for the further investigation of which he considered that there should be an EMG and nerve conduction studies for the possible involvement of the serratus anterior because spasm in the trapezius can also cause the appearance of winging. Mr. Fry in my view did not turn his mind to winging of the scapula (he said he was not specifically looking for it) until he saw the plaintiff on 13th January 1994 and as I understand his evidence his own observations on that day concerning the plaintiff’s left shoulder were much the same as he had seen when he examined her on 25th November 1993 and 9th December 1993 except that she was hunching her shoulder due to neck pain which “was more so on the left side and mostly around the base of the neck in the trapezius muscle”. None of the medical witnesses postulated the events of the motor vehicle accident as being likely to have caused injury to Bell’s nerve and therefore there is no credible evidence that that incident had such a consequence, although it is likely it did cause a soft tissue injury to the plaintiff’s neck and that probably explains the hunching of the shoulder which both Mr. Fry and Dr Bastian spoke of. The plaintiff whose evidence I accept said that after the motor vehicle accident she was more sore but after a time her state returned to where it had been before the motor vehicle accident.
There is nothing in the evidence to even faintly suggest that before the incident with the wall on 19th November 1993 the plaintiff had exhibited winging of her scapula or that she had any impairment to Bell’s nerve. By mid‑1994, as I accept, the plaintiff’s left scapula was winging and that is to be attributed to partial denervation of Bell’s nerve. I have dismissed the motor vehicle accident on 3rd January 1994 as the cause of or even a contributing factor to that impairment. There is no evidence that the plaintiff suffered any other physical trauma to or involving her left shoulder after 19th November 1993. A viral infection can cause an impairment of Bell’s nerve but that was not explored in any depth with any of the witnesses to elicit evidence in this case to which regard should be had in weighing the probabilities - it is at best a possibility. The incident with the wall was capable of causing trauma to Bell’s nerve and the winging phenomenon which was certainly present in mid‑1994. Dr Bastian said that on 6th January 1994 and on two subsequent occasions to 9th January 1994 he saw winging of the plaintiff’s left scapula and specifically turned his mind to the issue of a long thoracic nerve palsy. He did not carry out on the plaintiff the test of pressing her hands against a wall or such-like, the so called classical test, but he did have the plaintiff flex and abduct her left arm in which movement the winging, he said, appeared. He also considered the possibility that the winging might be a symptom of spasm in the trapezius. Mr. Fry said that such a spasm was in his opinion the cause of the prominent appearance of the plaintiff’s left scapula. The potential for there to have been an impairment of Bell’s nerve, as Dr Bastian suspected, was confirmed by Dr Hall in August 1994 who said it was “chronic” that is it had been present for more than a few weeks and, as I understood his evidence, allowed for a period of months given, as I accept, that the nature of the impairment involved the axons.
I have considered the submission of counsel for the defendants that the plaintiff’s failure to call Dr Ong or Dr Koe has in effect deprived the Court of what may have been relevant evidence and the Court should infer that the evidence of neither of them would have assisted the plaintiff’s case. However the observation of the phenomenon of winging as a discrete symptom is not one which even very experienced professionals in the complexities of the shoulder often see, and its presence as a symptom of an injury to Bell’s nerve is not, as the evidence in this case shows, an easy task. I am therefore not prepared to draw the inference the defendants invited the Court to draw because of the absence of Dr Ong or Dr Koe.
I find on the balance of probabilities that the incident when the wall fell and struck the plaintiff’s left shoulder caused the injury to the plaintiff’s Bell’s nerve on the left side.
Mr. Hayes assessment is that the plaintiff has a 30 percent loss of her left shoulder function which could be reduced to 10 percent were the plaintiff to undergo a procedure of the kind he described but which he has never previously performed. It appears to be a very invasive procedure which would leave the plaintiff with extensive scarring. Before the incident on 19th November 1993 and by reason of an earlier injury to her back the plaintiff in Mr. Lipert’s opinion was fitted only for light to medium work, excluding overhead or lifting work, and hairdressing was not an appropriate occupation for her. In February 1998 Mr. Cornish observed that the plaintiff’s left shoulder movements had improved, an observation which indicated to Dr Hallpike an ongoing recovery, although as I understood the evidence of Dr Hallpike and Dr Hall full recovery is unlikely. All of these factors bring me to the view that the plaintiff will not subject herself to the procedure Mr. Hayes discussed with her and that decision cannot be criticised.
Mr. Fry said that he was not surprised to read what Mr. Hayes had found and done by way of an arthroscopic procedure upon the plaintiff’s left shoulder in September 1994 “because if followed logically from what I had found and treated before” (p.175). I am satisfied that the procedure carried out by Mr. Hayes on the plaintiff’s left shoulder was a necessary consequence of the injury caused to that shoulder by the falling wall.
The evidence concerning the plaintiff’s right shoulder is not clear-cut. It is more likely than not the plaintiff since the age of about 14 years had experienced periodic problems with the shoulder. Mr. Hayes noted an anterio‑inferior instability which exposed the plaintiff in her work as a hairdresser to the risk of an impingement syndrome of the kind he found in the shoulder in October 1997. He said that the extensive damage he saw to the caraco‑acromial ligament of the shoulder would not usually occur in an accident (I understood him to be referring to the motor vehicle accident incident) but where instability is already present the ligament can be secondarily involved in the manner he described in an accident. Mr. Hayes said that in his opinion the condition in the plaintiff’s right shoulder had become apparent with her greater use of it because of the serious injury to her left shoulder. In their evidence the plaintiff, her daughter Helen and Mr. Sideris implied that the plaintiff avoided any activity involving stress upon her shoulder, but I do not regard that evidence as asserting that she made no use at all of her right shoulder. Mr. Cornish, in his report dated 12th February 1998, opined that he had “great difficulty” in identifying (a) the plaintiff’s greater reliance on her right shoulder post 19th November 1993 or (b) simple degeneration, as the aetiology of the condition in the plaintiff’s right shoulder and stated that on balance “... insofar as they are contributing they equally share aetiologically”.
The events in the motor vehicle accident as the plaintiff described them, that is being thrown to her right, implied the potential for injury to her right shoulder. However the plaintiff’s memory focussed on banging the right side of her head, neither Dr Bastian nor Mr. Fry found any abnormal signs in the right shoulder when they examined her in January 1994 and, as I accept, the plaintiff did not begin to experience pain in her right shoulder until about May 1997. I find that the motor vehicle accident did not contribute to the condition in the plaintiff’s right shoulder which necessitated the procedure carried out by Mr. Hayes in 1997. It is likely that before the incident in November 1993 the plaintiff’s right shoulder was in a degenerated state which may have caused pain and impediment at some future time in any event, but I accept that the plaintiff’s greater reliance on her right shoulder, in such movements as she did perform, caused the symptoms which led to the corrective procedure Mr. Hayes carried out.
I think upon the evidence of Mr. Cornish, who conducted the most recent examination of the plaintiff, and Dr Hallpike, that there has been an improvement in the mobility of the plaintiff’s shoulders since she was last examined by Mr. Hayes. Because of the injury to her back in 1989 and its ongoing effect the plaintiff was excluded in any event from the occupation of hairdresser and limited to light to medium work not involving overhead or lifting work. The plaintiff’s job at Myer was one of light tasks many of which the plaintiff said she is capable of doing now but she described that it involved re‑stocking shelves needing the use of a ladder to place and retrieve boxes; that would appear to require the plaintiff to engage in overhead or lifting work, tasks which because of her pre-November 1993 condition she had been advised to avoid. However, she now has, additionally, the loss of function in each of her shoulders assessed in the medical evidence before the Court which, as I accept, limits the movement of her shoulders because of the onset of pain when elevating her arms above the level of her shoulders. Nevertheless the plaintiff with the skills she has described does have an economic capacity which she can exploit and in my view that has been the case since about February 1998; before that time her recovery or gradual recovery from, first, the greatest severity of the affected Bell’s nerve, second, the condition in her left shoulder which Mr. Hayes operated upon in 1994 and third, the secondary effect upon her right shoulder which Mr. Hayes relieved in 1997, made her unfit for any work in my view.
The plaintiff I accept does have ongoing discomfort and episodes of pain in her shoulders but provided she restricts the movements of her arms to levels not much higher than her shoulders the plaintiff can successfully manage her physical and emotional state in her everyday life; her acknowledgment that she could now do many of the tasks which were involved in her job at Myer supports that view.
The evidence, which I accept, is that the plaintiff underwent two operations each of which entailed a quite lengthy convalescence and the plaintiff has suffered from episodes of depression of greater or less degree. In the past the pain and suffering has been significant and the plaintiff’s quality of life has been impaired. For the future, in my opinion, these things will be much less severe. I assess the past loss in the sum of $20,000 and for the future $15,000.
The parties, in a document received by the Court on 1st February 1999, and which I have marked Exhibit P25, agreed on the rate of pay which the plaintiff would have received from time to time as a sales assistant employed by Myer, or as a sales assistant with some other employer but upon the terms of the retail industry award. The Myer rate of pay is marginally higher than the general award rate. There are two rates in each case, the first on the basis of a full-time employment and the second on the basis of employment for 15 hours part-time work per week at causal rates, the latter being that appropriate to the short-term contract of the kind the plaintiff had at 19th November 1993.

100 There is no evidence before the Court that full-time work would have been made available to the plaintiff by Myer. The plaintiff said she wanted full-time work, and that she had taken a course with the Commonwealth Employment Service in operating facsimile machines and cash registers to enhance her prospects, however her work history since 1988 had substantially been in part-time employment. The plaintiff’s medical history since November 1993 and particularly her ongoing limitations additional to those which were pre-existing at November 1993 will make her an even less attractive applicant in competition with others for full-time work and in my view that will put her at a significant disadvantage, to such an extent that for all practical purposes her limitations will likely exclude her from full-time work as a sales assistant, the only kind of work for which she was fitted before November 1993. Nevertheless the plaintiff has skills derived from her experience as a hairdresser which enabled her to find work after she quit that occupation and in my view she has had an exploitable economic capacity since about February 1998 in part-time work as a sales assistant.

101 From Exhibit P25, and at the general award rate, I calculate that the plaintiff would have earned a nett after tax amount between 8th January 1994 and 28th February 1998 of approximately $80,500 for full-time work or approximately $41,100 for 15 hours work per week at casual rates.

102 In view of the plaintiff’s pre-November 1993 employment history and particularly the short-term and apparently seasonal employment contract she obtained with Myer I think it is more likely than not that the plaintiff, but for the injury the subject of these proceedings, would have worked part-time with whomever she obtained a job as a sales assistant although there should be some small allowance for the favourable contingency that she may have been able to find full-time work subject to the needs of her small child. I consider that $49,000 would have been an appropriate assessment for past economic loss to the end of February 1998 plus $4,000 to bring that head to the date of judgment, in arriving at which I have endeavoured to take account of not only the plaintiff’s effective exclusion from the possibility of full-time work but also the added difficulty the sequelae of her shoulder injuries poses in her ability to obtain suitable part-time work.

103 In relation to the past economic impairment the defendants submitted that the plaintiff received income maintenance under the Workers’ Rehabilitation and Compensation Act from about 4th January 1994 which was paid upon a claim for, and an acceptance of, a disability arising from the motor vehicle accident. On 3rd December 1998 the Court was told that that amounted to $3,264.88 or it may have been $2,119.19; it is not clear to me (see Exhibit P24 and p.3 of the transcript of proceedings on 3rd December 1998) which it is but I will fix upon the lower figure. The plaintiff accepts that upon the authority of Manser v Spry (1994) 181 CLR 428 those payments must be deducted from any award so that the plaintiff is not compensated twice for the same loss. Therefore I assess the past economic impairment at $50,800.

104 For the future and upon the same reasoning I applied to the past and also having regard to the present value at three percent compound interest per annum of a given weekly payment to a female aged 37 years (see Exhibit P23) but stating what is obvious namely that no mere arithmetical process can be utilised, I assess future economic impairment at $43,000. The plaintiff’s youngest child as he grows older would likely have been progressively less of an impediment to the plaintiff taking such full-time work as may have been available to her and of course Mr. Sideris may have been able to assume in whole or in part the role of carer of the child; these are imponderables but I have tried to allow for them in this assessment. Further, the plaintiff, I find had a pre-existing degenerative condition in, particularly, her right shoulder which in the future may well have caused in any event the same condition which necessitated corrective surgery of the kind carried out in 1997; I have allowed for that and other adverse contingencies in arriving at the assessment for future economic impairment.

105 Special damages, being medical and the like expenses are agreed in quantum in the sum of $13,442.30 (p.381) as to which no interest is sought thereon. Having regard to the manner in which this head was addressed by counsel in submissions (at p.381) I will allow them in full on the basis that they do not include any fees or costs incurred by the plaintiff in relation to the motor vehicle accident. As to future medical and the like expenses there is no evidence before the Court other than some vague reference to possible physiotherapy or medication, concerning neither of which is there anything which would help quantify such a head of loss, except by guessing which I am not prepared to do.

106 There is a claim for voluntary assistance provided to the plaintiff. That appears to have been provided most intensively until the point in 1995 when the plaintiff and Mr. Sideris set-up house together; in that period the service was given by the plaintiff’s daughter, Helen, the plaintiff’s sister and for some unstated time by a lady sent by Myer. From the time Mr. Sideris and the plaintiff co-habitated and with the relief the devices or structural alterations Mr. Sideris constructed I think that the services provided to the plaintiff were less and progressively reduced overall except for the period the plaintiff was recovering from the operation in 1997. Both Mr. Sideris and Helen are part of the plaintiff’s household and in the ordinary course would have undertaken some domestic duties in any event. The plaintiff’s youngest child has probably required less care in a physical sense as he has grown older. The plaintiff, as I have found, has had an increased capacity since February 1998 so that in my view the provision of voluntary services since that time, and beyond those which her family members would be expected to provide in any event, do not warrant any award. On all the evidence I assess $1,500 for the past provision of voluntary services.

107 Upon the components of the award (past economic impairment and past pain and suffering and loss of amenities) for which the plaintiff is entitled to interest I fix $11,000 as a lump sum in lieu of interest.

108 To summarise

Pain and suffering
        past  20,000
        future  15,000
Economic impairment
        past  50,800
        future  43,000
Special Damages
past  13442.30
future  nil
Voluntary Services (Beck v Farrelly)
        past  1,500
        future  nil
Lump sum in lieu of interest  11,000

109 There will be judgment for the plaintiff against the defendants in the sum of $154,742.30. I will hear the parties upon the question of costs.

[1999] SADC 41

25 March 1999