Turner v Bayly
[2012] VCC 1806
•26 November 2012
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-04233
| RAYMOND JOHN TURNER | Plaintiff |
| v | |
| TROY DAVID BAYLY | First Defendant |
| and | |
| TRANSPORT ACCIDENT COMMISSION | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 5 and 6 November 2012 | |
DATE OF JUDGMENT: | 26 November 2012 | |
CASE MAY BE CITED AS: | Turner v Bayly & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1806 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport Accident – injury to the left shoulder
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Petkovski v Galletti [1994] 1 VR 436
Judgment: The plaintiff is granted leave pursuant to s93(4)(d) of the Transport Accident Act 1985 to bring proceedings to recover damages for his “serious injury”.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Moore QC with Mr K Mueller | Ryan Carlisle Thomas |
| For the Defendants | Mr P Jens with Mr M Hooper | Lander & Rogers |
HIS HONOUR:
1 On or about 16 April 2005, the plaintiff was injured when a motorcycle which he was riding collided with a motor vehicle and trailer on the Ballarat to Creswick Road (“the accident”).
2 This is an application by the plaintiff by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings against the defendants to recover damages for the injuries suffered by him in the accident.
3 Mr J Moore QC, with Mr K Mueller of Counsel, appeared on behalf of the plaintiff, and Mr P Jens, with Mr M Hooper of Counsel, appeared on behalf of the defendants.
4 The plaintiff relies upon loss or impairment of the body function of the left shoulder.
5 The following evidence was adduced during the hearing:
· The plaintiff gave sworn evidence and was cross-examined;
· The plaintiff tendered the following evidence from the Plaintiff’s Court Book (“PCB”), pages 6-120 inclusive, which I marked as Exhibit A;
· The plaintiff also tendered the clinical notes from the Goulburn Valley Health Centre relating to the plaintiff’s attendance on 14 February 2012, which I marked as Exhibit B;
· The defendants tendered pages 18-27, 33, 35 and 37-38 from the Defendants’ Court Book (“DCB”), which I marked as Exhibit 1;
· In addition, the defendants tendered a further nine exhibits, as follows:
§ a medical report from Mr John Patrikios to Dr W J Crouch dated 16 April 2004: Exhibit 2
§ a medical certificate completed by the plaintiff’s general practitioner, Dr Crouch, on 9 October 2003 provided to Centrelink: Exhibit 3
§ a certificate provided by the plaintiff’s general practitioner, Dr Crouch, in support of an application for a Disabled Person’s Parking Permit dated 4 January 2005: Exhibit 4
§ medical notes of the plaintiff’s general practitioner in Shepparton, Dr MacKellar: Exhibit 5
§ a copy of the medical notes from Goulburn Valley Health dated 17 July 2012: Exhibit 6
§ a medical report from Mr Hugh Weaver to Wisewould, solicitors, dated 21 November 1995: Exhibit 7
§ a medical report from Dr Edward Cole to the plaintiff’s then solicitors dated 30 March 1995: Exhibit 8
§ imaging report relating to a CT scan of the plaintiff’s right shoulder dated 3 February 2012: Exhibit 9
§ imaging report relating to an x-ray of the plaintiff’s right shoulder dated 2 February 2012: Exhibit 10.
6 The application is brought under the definition of “serious injury” contained in ss(17) of s93 of the Act, which requires the plaintiff to prove that he has suffered a “serious long term impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)the plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of a transport accident occurring on or after 20 May 1986;
(b)the injury and the impairment must be permanent; that is, permanent in the sense that it is likely to last for the foreseeable future;
(c)the plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d)to be “serious” the consequences of the injury must be serious to the plaintiff. In forming a judgment as to whether, when regard is had to such consequences, an injury is held to be serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments or losses be fairly described as “very considerable” and certainly more than “significant” or “marked”?
8 I must identify the injury and the impairment said to be produced in consequence of the injury, whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test. I have applied the principles set out above in reaching my conclusions in this application.
9 The evidence in this case clearly establishes that, prior to the accident, the plaintiff had a number of pre-existing injuries some of which had partially disabled him. The plaintiff has been in receipt of a disability pension since the severing of tendons in his left hand in 1992.
10 The plaintiff has been a hard worker for most of his life. He had a limited education but obtained and completed an apprenticeship as a butcher. Thereafter, he worked in abattoirs as a slaughterman. In 1991, or thereabouts, in a work-related accident, he severed tendons in fingers in his left hand in the course of his work, leaving him with restricted use of his left hand.
11 Also, in 1992, he had a repair of a rotator cuff tear in his right shoulder and that surgery was largely unsuccessful and resulting in ongoing pain and limitation of movement for the plaintiff in the right shoulder.[1] In addition, at the time of the accident, the plaintiff had pre-existing injury to his left shoulder. The evidence shows that at least by the time of the accident the plaintiff suffered from a rotator cuff tear in the left shoulder and symptomatic degenerative change in the left shoulder. The plaintiff gave evidence, and I accept, that those injuries gave him moderate intermittent pain. Also, the plaintiff had a painful left knee.
[1]PCB 13
12 Having regard to the way in which the hearing of this application was conducted by the parties, the issues for my decision are relatively narrow, although the evidence is quite broad, in the sense that it spans a number of years.
13 The plaintiff’s case is that, notwithstanding the fact that at the time of the accident he had a number of pre-existing ailments, he was nevertheless coping with life and he was living a standard of life and enjoyment at a level far better than that which he is now able to live. Although partially disabled before the accident the plaintiff was nevertheless able to partake in a fairly broad range of activities.
14 For example, the plaintiff says that at the time of the collision he was able to partake in his great passion in life, that being to ride a motorcycle. The plaintiff’s case is that because of the onset of constant and ongoing pain in his left shoulder caused by aggravation of his pre-accident left shoulder injuries, he is no longer able to enjoy this pastime. There are a number of other matters which the plaintiff says that he was able to do before the accident which he is no longer able to do and enjoy. For reasons which I later state I accept his evidence as to these matters.
15 In summary, the defendants’ case is that, at the time of the accident, the plaintiff was extremely restricted in his life activities because of his many pre-existing ailments. He was no longer able to work as a butcher and he suffered considerable ongoing pain in his right shoulder and left hand, as well as having pre-existing pain in his left shoulder. The defendants’ case is that the plaintiff had a multitude of problems, inducing pain with his left shoulder prior to the accident, and it points to a number of items of evidence to establish this fact. The defendants argue that the left shoulder had pre-existing rotator cuff tear and symptomatic osteoarthritic changes to a degree which would be ongoing, and which would have restricted the plaintiff’s range of movement with pain and suffering consequences. The defendants’ case is that the consequences to the plaintiff of an aggravation of the pre-existing left shoulder injury are not such that the Court should be satisfied that the plaintiff has proved that the consequences for him from an aggravation of his left shoulder injuries might fairly be described as “very considerable” or more than “significant” or “marked”.
16 In summary, these are the issues for me to decide, and it is necessary to now turn to an examination of the evidence.
17 The plaintiff swore an affidavit in support of his application on 18 July 2011.[2] The plaintiff is sixty-seven years of age and divorced with two adult children who live in Queensland.
[2]PCB 6
18 Following the accident, the plaintiff was transferred to the Ballarat Base Hospital, where he was an inpatient for four days. He suffered five fractured ribs, a fractured left collarbone, a fractured left shoulder blade and a punctured lung.[3]
[3]PCB 7
19 Not long after the accident, the plaintiff moved from Allendale near Ballarat to Shepparton. His general practitioner when living in Allendale was Dr William Crouch. After the move to Shepparton, Dr John MacKellar became the plaintiff’s general practitioner.
20 The plaintiff said that after the accident he attended upon Dr MacKellar:
“… as a result of the ongoing persistent and severe pain, particularly to the neck and left shoulder.”[4]
[4]PCB 8
21 Dr MacKellar referred the plaintiff to a physiotherapist and to Mr Ian Critchley, an orthopaedic surgeon, in about May of 2006.
22 In February 2008, the plaintiff was prescribed Norspan patches for the first time and he has been prescribed them and used them continually since February 2008. Prior to the accident, the plaintiff was not on any form of prescribed medication notwithstanding his numerous pre-existing injuries. He did take over-the-counter medication in the form of Panadol and Panadol Osteo on the recommendation of his doctor for pain relief.
23 In his first affidavit, the plaintiff deposed to now having constant pain in the left shoulder which is worse if he tries to lift his left arm. He deposed to being restricted in movement of the left arm to about shoulder height and the pain is much worse if he attempts to lift anything.[5] The plaintiff deposed that he has constant pain in his neck, and the pain varies and is worse in cold weather. He deposed that he is restricted in movement and rotation of his neck in both directions and he gets pins and needles sensation in both of his hands every few days. The plaintiff also deposed that he has constant pain in his left rib region which is made worse when he is active in movement, and he suffers sharp pain if he coughs or sneezes. He also deposed that he suffers from shortness of breath, particularly when he bends over, and he has cramps in his left leg, particularly in the region of the left knee.[6]
[5]PCB 8
[6]PCB 8
24 The plaintiff gave evidence in his first affidavit of his medication regime. He is prescribed Stilnox, 10 milligrams as required, and Norspan patches, 5 milligrams weekly. In addition, he takes Panadol Osteo, six per day, every day, and Nurofen, four per day on a needs basis but averaging about ten or twelve per week.[7]
[7]PCB 9
25 The plaintiff deposed that prior to the accident, he had suffered pain in his left shoulder. He had previously sought treatment from Dr Crouch, who referred him to Mr John Patrikios, an orthopaedic surgeon, in Ballarat. Mr Patrikios recommended that the plaintiff undergo an arthroscopy with a view to relieving the symptoms. Mr Patrikios reported the plaintiff was awaiting that procedure to his left shoulder at the time of the accident.[8] In his evidence the plaintiff said he had agreed to undergo the procedure to his left knee but not the proposed procedure to his left shoulder. He said his reluctance was because of his experience with his right shoulder operation.[9]
[8]PCB 9 and also see Exhibit 2
[9]T 26
26 However, in describing the level of pain in his left shoulder prior to the accident, the plaintiff deposed:
“… Whilst I suffered intermittent pain previously, the pain is now considerably more severe and is constant.”[10]
[10]PCB 9 - paragraph 20
27 In other words, the plaintiff’s pain in his left shoulder is now considerably worse and constant. The plaintiff was not challenged on this evidence.
28 In his first affidavit, the plaintiff deposed to having right shoulder surgery in Albury in 1991 and that he also suffered from a painful left knee for many years which has caused him a good deal of pain and some restriction of movement.[11]
[11]PCB 9
29 The plaintiff deposed as to the consequences for his enjoyment of life as a result of the accident and the injury to his left shoulder. The plaintiff’s passion in life prior to the accident was riding his motorcycle and that he was able to do this on a regular basis prior to the accident sometimes travelling long distances. The defendants cannot gainsay this fact for the plaintiff was riding his motor cycle at the time of the accident. The plaintiff deposed in both of his affidavits that he can no longer enjoy riding his motorcycle. He deposed that he used to go on long trips every fortnight to places as far away as Yarrawonga, a round trip of about 500 kilometres. He deposed that he can no longer go on such trips because of the aches and pains to his neck, shoulder and the ribs. He says even small bumps cause discomfort and larger bumps cause severe pain to the rib area. He has difficulty having his arms outstretched a necessary part of riding a motor cycle.[12]
[12]PCB 9
30 Another consequence was that the plaintiff could no longer tender and slaughter sheep. He deposed in his first affidavit that at the time of the accident, he had about seventeen sheep which he used to fatten up for slaughter to supply meat for himself and friends. He deposed that he was self-sufficient in lamb, and seldom ate beef. He deposed that because of pain and restrictions, particularly in his left arm and shoulder, he can no longer raise sheep and slaughter them.[13] That evidence is unchallenged.
[13]PCB 9-10
31 Further, prior to the accident the plaintiff had and maintained, what he described as “my own extensive vegetable garden and grew most of my own vegetables”. He said he used to enjoy his vegetable garden because it kept him occupied and supplied him with vegetables. He deposed that as a result of the injury to his left shoulder, he has been unable to continue with the vegetable garden.[14] That evidence is not challenged.
[14]PCB 10
32 Further, the plaintiff deposes that he has great difficulty with such things as hanging out washing, doing up his shoelaces or even cutting up meat on his plate to eat. He said since the accident he must use his right hand, which he describes as “quite awkward”.[15] That evidence is not challenged.
[15]PCB 10
33 The plaintiff swore a second affidavit in support of his application on 19 September 2012.[16] In that affidavit, he deposed:
[16]PCB 11
“… I continue to suffer constant pain in the left shoulder which is considerably worse upon use.”[17]
That evidence was not challenged.
[17]PCB 11
34 He deposed that of his various complaints and symptoms, the most significant are those associated with his left shoulder.[18] He deposed in his second affidavit that he is still not able to ride his motorcycle and he has lost his great passion in life as a result of the accident and the injuries he sustained, particularly to his left shoulder. He deposed that he now has difficulty driving a car for the same reason.[19]
[18]PCB 11
[19]PCB 11
35 In evidence before me, the plaintiff said that in the few months leading up to the accident, he had very little pain in his left shoulder.[20] He said the pain is worse since the accident.[21] He said that since the accident, there has been a change in the level of soreness in the left shoulder.[22] He said that before the accident, he was able to ride his motorcycle as much as 500 kilometres, and that whilst he was in some pain, he was nevertheless “comfortable” on his motorcycle.[23] He deposed that since the accident and the injury to his left shoulder, he can no longer ride his motorcycle, and that it is for sale.[24]
[20]Transcript 52
[21]Transcript 52
[22]Transcript 52
[23]Transcript 53, line 29
[24]Transcript 54
36 The plaintiff gave evidence, which I accept, that because of the pre-existing injury to his right shoulder, prior to the accident he was unable to sleep on his right side. However, since the accident and the injury to his left shoulder, which aggravated the pre-existing injury, he is now no longer able to sleep on his left side either, restricting him to having to sleep entirely on his back. The plaintiff also deposed, and I accept, that he suffers from sleep disturbance in consequence.[25] In my judgment that alone is a consequence that might be described as very considerable.
[25]Transcript 54
37 The plaintiff confirmed in evidence before me that before the collision he was not taking any prescribed medication and he deposed that the medication regime set out in his affidavits is true and correct.[26] He deposed that before the accident, he used to use his left upper limb “a fair bit” and “as much as I could at the time”. He confirmed in evidence before me what he had deposed in his affidavits; namely, that he no longer has a vegetable garden, he has a friend that does his cooking and a friend that does a lot of his washing and cleaning of his house, and he can no longer lift as much with his left arm and he can no longer reach forward to pick things up.[27] In my judgment each of these consequences might also be described as being very considerable.
[26]Transcript 55
[27]Transcript 56-57
38 The plaintiff gave evidence, and I accept, that he now has difficulty driving because he cannot hold his arms out to steer the car.[28] He confirmed that whereas prior to the accident he was still able to slaughter his own sheep, he can no longer do this.[29] He told me in evidence, and I accept, that little things such as showering is a problem, he cannot reach above shoulder height and cannot even wash his head.[30] When asked to describe his left shoulder pain, he said, “It’s very, very sore, I can’t sort of do anything with it, you know” and he told me that he has lost “a lot of ability to do what I want to do and things”.[31] The plaintiff told me that he has been having more pain in his right shoulder since the accident because he has been using his right arm more because of his left arm injuries.[32] Again, in my judgment each of these consequences might also be described as being very considerable.
[28]Transcript 58
[29]Transcript 58-59
[30]Transcript 60
[31]Transcript 60
[32]Transcript 31
39 This application focuses upon the injury to the plaintiff’s left shoulder sustained in the accident. The plaintiff’s case is that when one compares the plaintiff’s ability to live his life before the accident with the many restrictions that he presently has which result from the injury to the left shoulder, the consequences of the injury to the left shoulder must be held by me, when judged by a comparison with other cases in the range of possible impairments or losses, to be fairly described as “very considerable” and certainly more than “significant” or “marked”.
40 On 2 March 2011, the plaintiff was referred by his solicitors to Mr Paul Kierce, an orthopaedic surgeon, for medico-legal opinion.[33] Mr Kierce has since provided a number of reports. Importantly, when first asked to give his opinion, Mr Kierce was provided with many reports dating back to 1993 which deal with the plaintiff’s pre-existing injury. He was also provided with a number of radiological reports dating back to 1997. Mr Kierce referred to an x-ray report of the plaintiff’s left shoulder conducted on 17 April 2003, that is, before the accident. He noted that the report stated:
“Moderately severe osteoarthritic change affects the acromioclavicular articulation with joint narrowing and peripheral osteophytic lipping. Sub-chondral degenerative cyst formation affects the acromion. Irregularities and early cystic change affects the greater tuberosity at the site of the supraspinatus insertion that would be consistent with early degeneration of the site.”[34]
[33]PCB 23
[34]PCB 30-31
41 X-rays taken of the plaintiff at the same time showed:
“Degenerative changes seen at the acromioclavicular joint. No soft tissue calcification or other abnormalities are seen.”[35]
[35]PCB 31
42 In relation to the plaintiff’s left shoulder problem, Mr Kierce opined:
“From the orthopaedic viewpoint it is my opinion that Raymond Turner suffered a fracture of his left clavicle and a fracture of the left scapula with a massive tear of the rotator cuff of the left shoulder. He has no evidence of radiculopathy but has suffered a soft tissue injury to his cervical spine.”[36]
[36]PCB 31
43 Mr Kierce re-assessed the plaintiff on 1 August 2012, at which time he opined:
“Clinical examination indicates that he is suffering from adhesive capsulitis of the left shoulder. Some of his movements, such as flexion and abduction have improved but he still has marked limitation of external rotation consistent with adhesive capsulitis following his injury on the 16th April 2005 when he was riding his motorcycle. In this accident he had also suffered a fracture of his left clavicle and a fracture of the left scapula together with a massive tear of the rotator cuff. He still has evidence of persisting soft tissue injury to his cervical spine although there has been some improvement with regards to flexion-extension movements. There is no evidence of radiculopathy in his upper limbs.”[37]
[37]PCB 21
44 In a further report dated 8 October 2012, Mr Kierce opined:
“It is my opinion that in addition to tearing the rotator cuff he has aggravated pre-existing osteoarthritis of the left acromioclavicular joint in the accident.”[38]
[38]PCB 16
45 Dr John MacKellar provided a medico-legal report to the plaintiff’s solicitors on 23 August 2007. After dealing with the various injuries suffered by the plaintiff in the accident, Mr MacKellar opined:
“… Mr Turner had sustained a ‘massive and inoperable rotator cuff tear’ of his left shoulder. … .”[39]
[39]PCB 63
46 He went on to say that the plaintiff:
“… was not sleeping because of the pain and said he could not do the dishes because of the pain. His major concern was loss of function of the left shoulder. … .”[40]
[40]PCB 63
47 In a later report to the defendants dated 24 May 2008, Dr MacKellar reported that the plaintiff has:
“… severely limited function of his left shoulder.”[41]
[41]PCB 61
48 On 16 December 2011, Dr MacKellar referred the plaintiff to the Orthopaedic Clinic at the Goulburn Health Centre. In his referral, he stated:
“He has presented with a complete tear of his right rotator cuff and considerable disability. There was no obvious precipitating event. The same shoulder was affected by the same problem and was treated by surgery in 1991.
Additionally, Mr Turner is suffering the consequences of a motorbike accident in 2005, one aspect being a similar rotator cuff to his left shoulder.”[42]
[42]PCB 60
49 The plaintiff had been referred, as I stated earlier, by Dr MacKellar to Mr Ian Critchley, orthopaedic surgeon, in May of 2006. In a report to the plaintiff’s solicitors, Mr Critchley opined:
“Mr Turner has significant disability in his left shoulder.
He has a massive rotator cuff tear and this injury preceded the motor vehicle accident. It may have been however that the motor vehicle accident exacerbated this problem. The fracture of his left clavicle is united and will not cause him any further troubles. He may well have non-union of his fractured ribs which may cause some ongoing chest pain but there is no specific surgical treatment for this.
…
As far as his shoulder goes, he may well require further treatment[.] [S]hould his shoulder degenerate further, he may be a candidate for a reverse total shoulder replacement or a cuff tear arthropathy type of prosthesis. He certainly was not at the stage of requiring this at the time I saw him.”[43]
[43]PCB 76
50 The defendant tendered medical reports from Mr Michael Dooley, who saw the plaintiff for medico-legal purposes in February of 2011 and September of 2012. Mr Dooley’s opinion did not differ from that of Mr Critchley, the treating surgeon. Mr Dooley opined as follows:
“Mr Turner was involved in a motor vehicle accident in April 2005. I believe that in this accident he sustained a fracture of the left clavicle, a fracture of the left scapula and probable aggravation of pre-existing degenerative rotator cuff disease of the left shoulder. The fractures of the left clavicle and scapula were managed conservatively and have gone onto union.
Again, as previously noted, it is evident that prior to the motor vehicle accident Mr Turner had established advanced degenerative rotator cuff disease of the shoulder. He had previously undergone surgery on his right shoulder. It is stated that he had been placed on a waiting list for surgery on the left shoulder. In my view there will have been degenerative rotator cuff tearing present in the left shoulder at the time of the motor vehicle accident. It is possible that further tearing of the rotator cuff occurred at the time of the accident. Mr Turner is developing so called rotator cuff arthropathy. This refers to a situation where there is advanced degenerative tearing of the rotator cuff that allows the humeral head to sublux superiorly. In time, osteoarthritis of the glenohumeral joint supervenes.
…
I note that in the attached documentation in relation to Mr Turner’s degenerative rotator cuff disease the option of reverse shoulder replacement has been mentioned. This particular form of shoulder replacement takes into account an insufficient rotator cuff within its prosthetic design. Technically however, it is a difficult operation and it is associated with a not insignificant complication rate. I do not think that there would be any current indication to consider such surgery in Mr Turner’s management.”[44]
[44]DCB 26
51 In this application there is no contest between the respective parties as to the state of the medical evidence. The contest is as to whether the aggravation to the plaintiff’s pre-accident left shoulder injury caused by the accident can itself be regarded as a serious injury.
52 In submissions, Mr Jens, on behalf of the defendants, submitted that the evidence discloses that, prior to the accident, the plaintiff had a multitude of problems with his left shoulder. I accept that to be the position. However, I find that the pre-existing rotator cuff tear to the plaintiff’s left shoulder and the pre-existing symptomatic osteoarthritic change in the plaintiff’s left shoulder joint was aggravated in the accident. In consequence, I find that the injury suffered by the plaintiff to the left shoulder in the accident severely aggravated the pain and suffering consequences that the plaintiff had in his left shoulder pre-accident, and as a result he has been left most disabled.
53 In support of his submissions, Mr Jens pointed to Exhibit 2, the report of Dr Patrikios dated 16 April 2004. That report refers to the plaintiff then having “chronic problems” and as suffering from a painful left shoulder. Mr Jens submitted that the principle in Petkovski v Galletti[45] must be applied and that I must measure the degree of aggravation and whether or not that aggravation amounts to a “serious injury” within the meaning of the Act. I agree that I am bound to apply the principle in Petkovski v Galletti . In my opinion, the evidence establishes that the aggravation of the pre-existing injury to the plaintiff’s left shoulder is, itself, a “serious injury”. In my view the aggravation of the plaintiff’s pre-accident left shoulder injuries caused by the accident has produced for the plaintiff pain and suffering consequences that might fairly be described as being very considerable or at least more than significant or marked.
[45][1994] 1 VR 436
54 Mr Jens referred to Exhibit 3, being a Centrelink application completed by the plaintiff’s then practitioner, Dr Crouch, on 9 October 2003. On page 2, that document referred to the plaintiff as then suffering “bilateral osteoarthritic shoulders” and that it resulted in symptoms of pain and restriction of movement and reduced power. I accept that document as evidence of the pre-existing pain and limitation of movement that the plaintiff suffered in his left shoulder. However, the evidence contained in Exhibit 3 does not show that at that time, the plaintiff suffered from pain and suffering consequences and impairment relating to his left shoulder at the level that he now suffers following the accident.
55 Mr Jens also pointed to Exhibit 4, a Disabled Person’s Parking Scheme Application, for the same purpose. That exhibit also does not assist the defendants.
56 Mr Jens also referred to Exhibit 5 and the records of Dr MacKellar. He submitted that the records show the plaintiff’s complaints to Dr MacKellar over the last two years have related to the right shoulder and not the left. He submitted that that was consistent with a report from Dr Jamieson at the Goulburn Valley Health Clinic dated 31 January 2012. That report from Dr Jamieson to Dr MacKellar related to a consultation concerning the plaintiff’s right shoulder. In evidence, the plaintiff was adamant that he consulted Dr Jamieson in January this year concerning his left shoulder and not his right.[46]
[46]Transcript 47
57 I accept the plaintiff’s evidence and accept it to be the case, that in January of this year, the plaintiff was consulting with Mr Jamieson for a complaint to his left shoulder but because of the fact the plaintiff had previously undergone an unsuccessful operation to his right shoulder in 1991 the consultation may have shifted to focus on the right shoulder. I accept that in January 2012 the plaintiff’s right and left shoulder problems were each causing him consequences in terms of pain and suffering and impairment, but I find that the plaintiff was coping with difficulties with his right and left shoulders in 2005 when the accident occurred and was able to ride his motorbike[47] and tend to his vegie patch etc. It has been the aggravation of the pre-accident injury to the plaintiff’s left shoulder in the accident which I have referred to above that has resulted in the pain and suffering consequences and impairment consequences from which the plaintiff now suffers.
[47]Transcript 41-42
58 Mr Jens submitted that there was no evidence to show that it was the injury to the plaintiff’s left shoulder in the accident alone which now prevented the plaintiff from riding his motorcycle. Acting as I do on all of the plaintiff’s evidence I disagree. I found the plaintiff to be forthright, genuine, honest and stoic. If anything he was given to understating his case, almost apologetic for taking up the court’s time. The purport of all of his evidence, and especially in re-examination, was that the pain and suffering consequences from which he presently suffers, and the impairments from which he presently suffers and the curtailment to his lifestyle to the level that it has now reached can be traced back to the injury to his left shoulder in the accident. I accept and act upon that evidence.
59 In my view, on an assessment of all of the evidence, it was the aggravation of the pre-existing left shoulder injury which the plaintiff suffered in the accident that amounted to the “straw that broke the camel’s back” so far as this plaintiff was concerned. Prior to the accident, he had battled on as best he could, and that meant that he was able to ride a motorcycle and tender sheep and slaughter them and run a vegetable garden and look after himself in his house. I find, on his evidence, which I wholly accept, that he is no longer able to do these things, and it was the aggravation injury to his left shoulder which has brought this about.
60 Mr Jens submitted that there is not enough evidence to justify a finding that the consequences for the plaintiff from the aggravation injury to the left shoulder alone are such as to amount to a “serious injury”. I reject that submission accepting entirely, as I do, the evidence of the plaintiff.
61 Accordingly, I find the plaintiff suffered a “serious injury” to his left shoulder in the transport accident that occurred on 16 October 2005. The nature of the injury to the left shoulder was an aggravation of a pre-existing rotator cuff tear and the aggravation of pre-existing osteoarthritic changes in the left shoulder, resulting in the plaintiff suffering severe, constant left shoulder pain with limitation of movement of his left shoulder and arm. In my judgment the consequences for the plaintiff in this case resulting from the injury sustained by him to his left shoulder in the accident, when judged by comparison with other cases in the range of possible impairments or losses, might be fairly described as “very considerable” and certainly more than “significant” or “marked”
62 The plaintiff is granted leave pursuant to s93(4)(d) of the Act to bring proceedings to recover damages for his “serious injury”.
63 I will hear the parties on the question of costs.
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