Wilson v Transport Accident Commission
[2022] VCC 1316
•24 August 2022
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-03888
| ANDREW RUSSELL WILSON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 14 July 2022 | |
DATE OF JUDGMENT: | 24 August 2022 | |
CASE MAY BE CITED AS: | Wilson v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: |
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REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – transport accident – injury to the right upper extremity – pain and suffering – loss of earning capacity – credibility
Legislation Cited: Transport Accident Act 1986 (Vic), s93
Cases Cited: Humphries and Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143; Dordev v Cowan [2006] VSCA 254; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Mason v Demasi [2009] NSWCA 227; Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Pulling v Yarra Ranges Shire Council [2018] VSC 248; Ryan v Bunnings Group Limited; Ryan v Eastlake Football Club Limited; Ryan v O’Halloran & Ors; Ryan v Bhagria & Anor [2020] ACTSC 353
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N D Horner | Shine Lawyers |
| For the Defendant | Mr P A Scanlon QC with Mr A W Middleton | Solicitor to the Transport Accident Commission |
Table of Contents
Introduction
Legal principles
Witnesses and evidence
Background
Medical history
Treating medical practitioners
The Plaintiff’s medico-legal reports
Mr Roger Westh, orthopaedic surgeon
The Defendant’s medico-legal reports
Mr Michael Dooley, orthopaedic surgeon
Associate Professor Bruce Love, orthopaedic surgeon
Joint medico-legal reports
Dr David Kennedy, sports and industrial physician
Issues and submissions
The Plaintiff’s submissions
The Defendant’s submissions
Credit
What injury did the Plaintiff sustain as a result of the transport accident?
Permanence
Impairment consequences
Consequences of the injury
Pain
Medication and medical treatment
Work capacity
Sleep
Mobility
Activities of daily living
Driving
Bike riding
Findings
Conclusion
HER HONOUR:
Introduction
1Andrew Wilson (“the plaintiff”) sustained injuries to his spine, his right shoulder and right upper extremity in a transport accident on 7 June 2018 (“the transport accident”). The plaintiff had boarded the bus from the Little Bridge Street interchange in Ballarat Central and was carrying one bag of groceries in each hand. As he placed his bags on the seat the bus drove off, causing him to lose his balance and fall on an internal wheel arch.
2The plaintiff seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (Vic) (“the Act”) to commence common law proceedings for damages for pain and suffering and loss of earning capacity in respect of an alleged “serious injury” within the meaning of s93(17)(a) of the Act, which the plaintiff says he sustained in the transport accident.
3No claim is made that he suffered a “serious injury” within the meaning of s93(17)(c) of the Act.
4The impairment claimed is to the right shoulder/right upper extremity. Reliance upon impairment of the spine and the particulars in paragraphs (a) and (b) of the Particulars of Injury were abandoned by the plaintiff at the hearing.
5To succeed in this application, the plaintiff must satisfy the Court, on the balance of probabilities, that the injury he has suffered occurred because of the transport accident and is a “serious injury” within the meaning of s93(17) of the Act. The assessment of whether the injury is “serious” for the purposes of the Act, is assessed at the time the application is heard.
Legal principles
6The definition of “serious injury” as set out in s93(17)(a) of the Act is, relevantly, as follows:
“‘serious injury’ means—
(a) serious long-term impairment or loss of a body function;
… .”
7The question of whether an injury is “serious” for the purpose of s93(17) is to be answered according to the narrative test laid down by the Full Court of the Supreme Court of Victoria in Humphries and Anor v Poljak.[1]
“… To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be 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 at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? … .”[2]
(emphasis added.)
[1] [1992] 2 VR 129 (“Poljak”)
[2] Poljak (ibid) at 140 (per Crockett and Southwell JJ)
8This requires a two-stage analysis. First, whether the nature and symptoms of the injury and consequences are subjectively “serious” for the plaintiff. Second, whether the injury and the consequences of the injury are objectively “serious”.
9The seriousness of the injury is to be assessed by considering the consequences relating to both pain and suffering and pecuniary disadvantage in a cumulative sense.[3]
[3] Poljak (ibid) at 40
10The weight to be attached to the plaintiff’s account of pain will be affected by an assessment of the plaintiff’s credibility.[4] A plaintiff’s credibility is relevant not only to whether his or her evidence should be accepted, but it is also relevant to the reliability of the medical evidence. The opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.[5] Medical opinions by experts may be of reduced weight if the plaintiff is shown to be an inaccurate historian.
[4]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at 5, paragraph [12], citing Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [8]; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 at paragraph [171]; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143 at paragraphs [142]-[145]
[5]Dordev v Cowan & Anor [2006] VSCA 254 at paragraph [51]
11Even if the Court determines that a plaintiff is not a reliable witness, either in general or in respect of particular matters, this does not mean that all medical opinions relied upon by a plaintiff should be automatically disregarded.[6] The opinions of doctors depend on credibility, but it would be remarkable if there were not variations in accounts given over time to different doctors.[7] Apparent inconsistencies have to be viewed with some caution before being accepted as significant.[8]
[6]Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104 (“Cakir”); Sejranovic at paragraph [146]
[7]Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317
[8]Mason v Demasi [2009] NSWCA 227 at paragraph [2] following Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at paragraph [8]
12Ultimately, each case must be decided on the whole of the evidence, including objective evidence of diagnostic tests which are unaffected by the plaintiff’s credit.[9]
[9]Cakir (supra) at paragraph [49]; Petrovic v Victorian WorkCover Authority [2018] VSCA 243 at paragraph [76]; Pulling v Yarra Ranges Shire Council [2018] VSC 248 at paragraph [51], and Ryan v Bunnings Group Ltd; Ryan v Eastlake Football Club Limited; Ryan v O’Halloran & Ors; Ryan v Bhagria & Anor [2020] ACTSC 353 at paragraphs [27]-[29]
Witnesses and evidence
13At the hearing, the plaintiff gave evidence and was cross-examined.
14He also relied upon:
(a) an affidavit sworn 2 September 2020 (“the plaintiff’s first affidavit”);
(b) a further affidavit sworn 21 December 2021 (“the plaintiff’s second affidavit”);
(c) extracts from the Amended Joint Court Book dated 14 July 2022, being reports from the plaintiff’s general practitioner; medico-legal reports of Mr Roger Westh, orthopaedic surgeon; Dr David Kennedy, sports and industrial physician, and Associate Professor Bruce Love, orthopaedic surgeon; and radiology reports and extracts from the treatment records of UFS Medical Centre.
15The defendant relied upon extracts from the Amended Joint Court Book dated 14 July 2022, being reports from Mr Michael Dooley, orthopaedic surgeon; CCTV footage of the accident; extracts from the treatment records of UFS Medical Centre and surveillance material of the plaintiff taken on 3 February 2022.
Background
16The plaintiff was born in October 1965 and is currently fifty-six years old. He is single with no dependants.
17The plaintiff is naturally left-handed.
18The plaintiff left high school after Year 9, having struggled at school with bullying. He struggles with writing and is a slow reader.
19Throughout his working life the plaintiff has worked as a car detailer on and off. He has previously also worked as a school cleaner, shop assistant and night filler in a supermarket, warehouse assistant, postal clerk, meat brander in an abattoir, labourer, and as a yardman/forklift driver. The plaintiff’s last job before the accident was as a part-time labourer for Ben Douker Engineering until 24 March 2017. At the time of the transport accident, he said he was unemployed and was looking for work.
20The plaintiff has been in receipt of Centrelink benefits throughout his life due to either unemployment or through the Disability Support Pension.
Medical history
21The plaintiff was born with cerebral palsy affecting his right-hand side. As a result of the cerebral palsy, he was born with an anal stenosis and a spastic equinus deformity of his right ankle, both of which required numerous operations. The plaintiff wore callipers from age four to thirteen, and his right leg remains shorter than his left.
22He is partially deaf in both ears and wears hearing aids in both ears.
23In 1980, the plaintiff’s brother died in a car accident, after which the plaintiff has suffered from depression and anxiety. He has required treatments and medications over the years as a result. He has attempted suicide. From the mid-1980s he became a heavy drinker, before managing to control his drinking. He experienced some workplace bullying in 2017, which he said aggravated his depression and anxiety.
24In 1987, the plaintiff fell off a motorbike and injured his right arm. He said in his affidavit that he made a full recovery.
25In 1988, the plaintiff injured his neck while working at Cobram Abattoirs. Again, he said he made a full recovery.
26In 1989, the plaintiff injured his back while umpiring football. He has had back pain on and off ever since. He has been told by doctors that he has Scheuermann’s disease.
27The plaintiff was involved in a serious truck accident in 1992. The truck rolled over and the trainee student who was the passenger was killed. The plaintiff injured his back and developed an aggravation of his mental health problems.
28On 7 June 2018, following the transport accident, the plaintiff’s girlfriend called an ambulance later in the day, and the plaintiff was taken to Ballarat Base Hospital, where he was given painkillers.
29On 15 June 2018, the plaintiff saw Mr Cameron Snowden, physiotherapist. Mr Snowden reported that the plaintiff had “[h]it lower back on guard on bus when about to sit down but bus took off. L Lx region.”[10]
[10] Amended Joint Court Book (“AJCB”) p170
30A note in the medical record dated 9 July 2018, from Dr Vikramjit Bal, recorded, “seen physiotherapist and Chiropractor”.[11] The plaintiff received physiotherapy at the same clinic and also attended Mr Blair Horton for chiropractic treatment. The plaintiff said, in re-examination, that he could not remember when he first saw the physiotherapist or the chiropractor, but he thought he saw the physiotherapist four to seven days after the transport accident and the chiropractor three to four days, or a week or so later, when he could get in. He said it was a possibility he saw them before he saw his general practitioner.
[11] AJCB p169
31The plaintiff continued to consult Mr Snowden until 1 August 2018, when he attended the UFS Medical Centre again and saw his usual general practitioner, Dr Andrew Webster.
32The plaintiff began to drink heavily to try and cope with the pain in his right shoulder, neck and back. He felt hopeless, helpless, anxious and depressed, and could not sleep. In July 2018, he tried to hang himself.
33In his report to Slater and Gordon dated 10 April 2019, Dr Webster reported that the plaintiff first consulted him on 1 August 2018. He presented after having tried to take his own life, which he said was due to back and right shoulder pain. He had a background of depression and had previously attempted suicide 25 years before. When seen, his mental state had improved, and he was suffering most likely from a depressive episode as well as mechanical back pain, along with what was seemingly a rotator cuff injury. There were subsequent follow-up consultations with Dr Webster on 8, 21 and 24 August 2018.
34The plaintiff was referred by his general practitioner to Mr Adam Hahs, psychologist, who he started seeing in August 2018. He also saw a mental health nurse at the Ballarat Base Hospital and was referred for a right shoulder ultrasound. He was also given Panadeine Forte for pain relief and was referred for physiotherapy.
35On 3 August 2018, the plaintiff underwent an ultrasound of his right shoulder. This found that there was subscapularis tendinosis associated with partial thickness interstitial delamination involving the superior tendon, measuring 6 millimetres in length and width. A bursal surface tear of the mid-supraspinatus tendon was also demonstrated, measuring 10 millimetres in length and 8 millimetres in width. The subacromial bursa was thickened and bursal impingement was demonstrated on the dynamic study with 30-degree abduction. The conclusion was that there were partial thickness subscapularis and supraspinatus tendon tears associated with subacromial bursitis and impingement.
36On 9 August 2018, the plaintiff underwent an ultrasound-guided cortisone injection to his right subacromial bursa due to persisting pain. The plaintiff said it did not really help.
37Over time, the plaintiff said that he felt his neck and back were improving, but he said his right shoulder was not getting any better and it remained stiff and painful.
38In his report to Slater and Gordon dated 10 April 2019, Dr Webster said the plaintiff’s prognosis was unclear regarding his back. He was receiving ongoing physiotherapy and his depression was longstanding. He did not consider the plaintiff was currently able to work.
39The plaintiff said he stopped physiotherapy in March 2021. He said, in his first affidavit, that it was not helping; however, in his second affidavit, he said this was because the Transport Accident Commission (“TAC”) refused to fund the treatment, and he could not afford to continue to see a physiotherapist.
40The plaintiff said he continues to see his chiropractor, Dr Horton, about once a month, and continues to see his counsellor, Mr Hahs, monthly.
41The plaintiff’s current treatment involves taking Codapane Forte 500/30 on most days, for pain relief. He has previously been prescribed Sertraline, 50 milligrams once daily, by his general practitioner, but he ceased taking Sertraline because he felt his “psychological state [had] improved a bit”.[12]
[12] AJCB p21
42In a further report prepared by Dr Webster dated 14 January 2022, Dr Webster opined that, due to the pain and restriction which the plaintiff was experiencing in his right shoulder, he was unable to work as a car detailer or in cleaning work. The right shoulder pain also affected his social interactions. He was very isolated. His right shoulder pain affected his domestic chores. He could only shop in small quantities, and housework was slow and painful. He struggled to put on socks and found riding a bike to be uncomfortable.
Treating medical practitioners
The Plaintiff’s medico-legal reports
Mr Roger Westh, orthopaedic surgeon
43Mr Westh examined the plaintiff on 16 November 2021 at the request of the plaintiff’s lawyers, and prepared a report dated 23 November 2021. His first report was prepared without the benefit of having reviewed the CCTV footage of the transport accident.
44Mr Westh subsequently prepared further reports on 28 June 2022 and 1 July 2022.
45In his first report, Mr Westh recounted the plaintiff’s description of the transport accident to him. He noted that the plaintiff said he had boarded a bus and he was injured when the bus driver drove off before the plaintiff could take his seat. He said he was off balance and fell against the wheel arch behind the driver when he reached out with his right arm to try to save himself. The plaintiff said he subsequently sat down in the seat and was aware of pain in his lower back, neck and right shoulder.
46Mr Westh noted the plaintiff’s current complaints of pain and restricted movement in his right shoulder. The plaintiff said he had no trouble prior to the accident. The pain was stated to be constant, and it was worse in cold weather and with overhead use of his arm. Lifting was restricted. He mainly uses his left arm when shopping and wakes up with shoulder pain. He also has cramps and pins and needles in his right arm at night. He said he does housework slowly, and he vacuums with his left arm.
47The plaintiff reported having had back pain prior to the transport accident, which had worsened. His back pain varied from six out of ten to eight out of ten. Some days the pain was worse in his shoulder.
48The plaintiff said, in relation to the future, he did not know what he could do. He is limited with standing, with back pain, and cramps in his right thigh. He finds sitting uncomfortable after 25 minutes. Walking is limited to 15 to 20 minutes with back pain.
49On examination of the right shoulder, there was some slight scapular wasting. He was tender anteriorly. The range of movement with flexion and extension was 100 degrees/30 degrees; abduction and adduction were 90 degrees/30 degrees and internal rotation and external rotation 40 degrees/80 degrees. Impingement testing was positive. The radiology report of the ultrasound of the right shoulder taken on 3 August 2018 was noted.
50Mr Westh concluded that, in the transport accident, the plaintiff sustained a soft-tissue injury to his right shoulder and a probable rotator cuff injury, together with soft-tissue injuries to his cervical and lumbar spine regions, with probable aggravation of underlying degenerative changes.
51Mr Westh was of the opinion that the transport accident was responsible for the plaintiff’s current right shoulder and neck condition.
52The plaintiff’s injuries had stabilised.
53Mr Westh considered that the plaintiff would likely be precluded from employment as a labourer or car detailer because of his right shoulder, and that his social, domestic and recreational activities would also be restricted for the foreseeable future. His right shoulder condition interfered with his sleep, and he is restricted in overhead lifting.
54In his second report, Mr Westh noted that he had been asked to view the CCTV footage of the incident, but had been provided with a blank disc. A further third report was prepared by Mr Westh after reviewing the disc of the CCTV footage.
55In his third report, Mr Westh opined that, after viewing the CCTV footage, it would appear that the plaintiff “may only have sustained minor soft tissue injuries when he overbalanced on the bus.”[13]
The Defendant’s medico-legal reports
[13] AJCB p176
Mr Michael Dooley, orthopaedic surgeon
56Mr Dooley first saw the plaintiff on 23 January 1998 for an impairment assessment following a motor vehicle collision on 16 June 1992. The plaintiff was a learner driver and was driving a tanker truck towing a half-full tank. He was proceeding down a hill and around a bend, when his instructor told him to brake. As he did, the vehicle began to roll and flipped. He was thrown from the drivers’ seat, across the cabin, and struck the dashboard along the way. He was taken by ambulance to the Goulburn Valley Base Hospital and recalled pain in his lumbar spine region. Over time, his lumbar pain persisted. Mr Dooley diagnosed soft-tissue musculoligamentous injuries to his lumbar spine. He said the plaintiff had a likely prognosis of continued intermittent lumbar pain, but he did not expect his condition to deteriorate over time. Mr Dooley said that if the plaintiff continued a general exercise program and avoided repetitive heavy physical work that his symptoms would remain under control.
57Mr Dooley prepared a second report, dated 31 March 2022, following a consultation with the plaintiff on 1 March 2022, at the request of the TAC. The plaintiff described travelling on a bus in the Ballarat area on or about 7 June 2018. He said that, when he got on the bus, he went to sit down, but when the bus moved forward, he was thrown against the inside wheel of the bus. As a consequence, he said he sustained bruising of his left flank, whiplash to his neck and torn ligaments in his right shoulder.
58When seen by Mr Dooley on 1 March 2022, the plaintiff had ongoing right shoulder pain and stiffness. He also had ongoing neck and back pain, and paraesthesia affecting his right upper limb. He was having chiropractic treatment.
59His history included details of his work in car detailing. The plaintiff told Mr Dooley that he had not worked since 2016/2017. He reported that a fellow staff member had threatened to kill him. The plaintiff went to Centrelink and was advised to see his doctor. It was recommended that he be placed on sick leave. The plaintiff showed Mr Dooley a photo of his back following the transport accident. There was evident bruising of the lower lumbar region. The plaintiff said he had been told that he had dislodged a vertebra in the accident and that it was manipulated back into place.
60Upon examination, the plaintiff’s right shoulder displayed some tenderness of the shoulder girdle. Active abduction and forward flexion were to 90 degrees. External rotation was to 50 degrees and internal rotation was to 30 degrees. Passively, the shoulder could be abducted and forward flexed to around 140 degrees. There were no radiology investigations available for review, however, Mr Dooley noted the ultrasound of the right shoulder on 3 August 2018, which had reported thickening of the subacromial bursa with tendinosis, partial thickness and delamination-type tearing of the subscapularis tendon.
61Mr Dooley diagnosed the plaintiff as having suffered subcutaneous, and possibly, muscular bruising to areas of the lower posterior thoracic region and lumbar region.
62Mr Dooley said that he had reviewed the CCTV footage of the incident. He noted that when the plaintiff got onto the bus, he was carrying shopping bags. He was about to sit down as the bus took off. He overbalanced, moving backwards and slightly to the side. There was, as Mr Dooley described, a mild glancing impact to the inner wheel area. The plaintiff was stated to have quickly regained his balance and to have sat down.
63The plaintiff said that, on the evening of the incident, he developed severe neck pain, right shoulder girdle pain, and was told he had torn ligaments in his shoulder. He complained of ongoing shoulder pain and stiffness.
64Mr Dooley considered, based on his viewing of the CCTV footage of the incident, and also the plaintiff’s exit from the bus, that it was difficult to explain the subsequent onset of acute neck pain and right shoulder girdle pain on the basis of the injury sustained.
65Mr Dooley prepared a third report, dated 14 April 2022. In that report, he was asked whether the transport accident involving the plaintiff on 7 June 2018, as seen on the CCTV footage, was consistent with the plaintiff having sustained any injury to his right shoulder. Mr Dooley answered: “No.”[14]
[14] AJCB p135
66Mr Dooley was also asked whether the pathology, reportedly identified in the ultrasound of the plaintiff’s right shoulder performed on 3 August 2018, was consistent with any acute injury, or trauma sustained as a result of the transport accident on 7 June 2018, as seen on the CCTV footage. Mr Dooley considered that the reported findings of the ultrasound related to naturally occurring degenerative rotator cuff change. He noted that, as degenerative change evolves, degenerative tearing of the tendons could occur. These begin as partial thickness tears. He said that he did not believe that the radiological changes recorded on the ultrasound were consistent with any injury sustained at the time. He did not believe that the plaintiff sustained an injury to his right shoulder in the transport accident.
Associate Professor Bruce Love, orthopaedic surgeon
67Associate Professor Bruce Love prepared two reports, dated 27 November 2020 and 14 January 2021, at the request of the defendant, following an examination of the plaintiff conducted on 23 November 2020. The only radiology provided to Associate Professor Love was an MRI scan of the cervical spine, which revealed severe multilevel degenerative disc disease, rendering the spine relatively inflexible.
68Associate Professor Love took a history from the plaintiff of the incident. He recorded that the plaintiff stepped up to the seat on the bus immediately behind the driver’s area and placed his shopping on the seat adjacent to the window. He then took another step up to reach the seat. The bus began to move. The plaintiff was standing in the aisle. He said the movement of the bus caused him to rotate, and he swung, and partially fell, but was steadied by a passenger sitting in the seat on the opposite side of the bus to where he was standing. As he twisted around, his right shoulder struck a restraining pole behind the seat that he was moving to. The plaintiff described striking his back on the parcel shelf.
69When he returned home, the plaintiff said he felt “winded”. His girlfriend took a photograph of the bruising on his lumbar spine, which the plaintiff showed to Associate Professor Love. Later in the day, the plaintiff described feeling stiff in his back and neck. The next morning, he had trouble getting out of bed and an ambulance was called.
70The plaintiff was examined by a doctor and given Panadol and Nurofen. He said that, within a few days, he consulted his general practitioner because of ongoing back pain, and physiotherapy was recommended. He said he noted diminished strength in his right arm over the ensuing week and he was investigated by his general practitioner and advised that tendons had been damaged. The plaintiff said, since that time, he has had physiotherapy, but has not been referred to a specialist.
71The plaintiff complained of current pain to his right shoulder with restriction of motion.
72Upon clinical examination, there was very limited motion of the lumbar spine and no extension. There was very limited rotation.
73The right shoulder was significantly restricted with flexion reaching 85 degrees, extension reaching 30 degrees, abduction 65 degrees and external rotation 70 degrees. There was minimal tenderness about the right shoulder.
74Associate Professor Love assessed the plaintiff as having suffered, principally, a rotator cuff injury of the right shoulder as a consequence of the transport accident, and a mild aggravation of a pre-existing lumbar spine condition. Any ongoing treatment of the right shoulder would be physiotherapy, or possibly consideration for surgery, although Associate Professor Love did not recommend that at that time.
75Associate Professor Love considered that the plaintiff’s injuries of rotator cuff tendinitis of the right shoulder and a mild aggravation of a chronic degenerative condition of the thoracolumbar spine, were caused by the transport accident. He was not of the opinion that any of the conditions were particularly aggravated by the transport accident and that if any aggravation did occur, it had largely resolved.
76In his supplementary report, which Associate Professor Love prepared following his review of the CCTV footage of the transport accident, Associate Professor Love noted an abnormal movement when the plaintiff was attempting to become seated on the bus. Those motions did not appear to be associated with a movement that one might have anticipated would be associated with extreme force. He was, therefore, of the opinion that he must accept the plaintiff’s description of the mechanics of onset of his injury. He opined it was not inconsistent with the symptoms subsequently experienced.
Joint medico-legal reports
Dr David Kennedy, sports and industrial physician
77Dr David Kennedy prepared two reports, dated 11 July 2019 and 17 December 2019, following clinical assessment on 27 June 2019, at the joint request of the TAC and Shine Lawyers.
78Dr Kennedy was provided with the radiological reports of the ultrasound of the plaintiff’s right shoulder, and also the radiology disc.
79Dr Kennedy took a past history from the plaintiff and noted the plaintiff’s description of the transport accident. Specifically, he said that he was on a bus carrying two bags of shopping. He went to step up onto the seat behind the driver, when the bus suddenly started very quickly and he was swung around, landing on the internal wheel arch with his lower back, and he swung his right arm up, injuring his right shoulder and neck. He called out to the driver, but got no response, and the incident was noted by a female passenger sitting across from him. He said he eventually got home with worsening right-sided neck and shoulder pain.
80The plaintiff attended the Ballarat Health Services, and was examined, and found to have bruising on his spine.
81Dr Kennedy noted the plaintiff’s current condition, complaints and capabilities.
82On examining the right shoulder joint, there was tenderness over the anterior aspect of the glenohumeral joint and also of the rotator cuff tendon, near its insertion. On assessing range of motion, flexion was reduced to 100 degrees, extension to 35 degrees, abduction to 90 degrees, adduction to 40 degrees, external rotation to 80 degrees and internal rotation to 60 degrees, with pain at the extreme of these movements.
83There was tenderness over the lumbar spine posteriorly, with an asymmetrical loss of active range of motion of flexion, extension, lateral flexion and lateral rotation.
84Dr Kennedy’s opinion was that the plaintiff had sustained injuries to his neck and right shoulder region, as well as some aggravation of pre-existing problems in his lumbar spine, as a consequence of the incident on the bus on 7 June 2018.
85Dr Kennedy noted that the injuries to the plaintiff’s right shoulder joint involving the rotator cuff mechanism had resulted in impingement and restricted movements of the right arm at the shoulder joint.
86In his second report, Dr Kennedy considered that the plaintiff was a “vague historian”. The plaintiff said that he had no previous history of shoulder joint or neck problems, but he had ongoing problems with minor stiffness in his back prior to the transport accident.
Issues and submissions
The Plaintiff’s submissions
87It was submitted on behalf of the plaintiff that there are two issues to be determined. In relation to the right shoulder, the first issue was whether the plaintiff’s right shoulder condition, and the resulting impairment, were caused by the motor vehicle accident.
88The second issue, if the right shoulder injury was caused by the transport accident, was whether the impairment consequences are serious. The plaintiff submitted that there was evidence that, while the underlying shoulder pathology was not caused by that transport accident, it was aggravated by it. The aggravation injury, and its consequences, flowed from the right shoulder condition, and were serious.
89The plaintiff’s counsel suggested that the plaintiff was a man with very limited work capacity before the accident, albeit with some lifting restrictions, but who sought to exercise that capacity where he could, and who now no longer has a capacity, and has a job-seeking exemption from Centrelink. The fact that the plaintiff takes pain medication; no longer rides his bicycle and experiences sleep problems, which he says are largely due to the right shoulder were also relied upon.
The Defendant’s submissions
90The defendant submitted that the principal issue in dispute was whether the plaintiff suffered injury as a result of the incident on 7 June 2018. It was submitted that the plaintiff suffered a soft-tissue injury in the transport accident, and not a more serious right shoulder injury. The defendant relied on:
(a) The report of Dr Webster dated 14 January 2022, to the effect that the plaintiff sees a chiropractor for neck and lumbar spine maintenance treatment and attends a psychologist monthly, but the extent of the consequences of his shoulder injury are that he is isolated, his domestic chores have been impacted to the extent that he can only shop in small quantities, he finds housework slow and painful, and struggles with putting on socks and bike riding;
(b) The opinion of Mr Westh provided after reviewing the CCTV footage of the bus incident, to the effect that the plaintiff “may only have sustained minor soft tissue injuries”,[15] as opposed to also sustaining a rotator cuff injury. Further, that the restrictions in the plaintiff’s employment as a labourer or car detailer were present by reason of his lower back exclusively, and would preclude him working as a labourer or car detailer, notwithstanding the subsequent right shoulder injury;
(c) The second report of Associate Professor Love following review of the CCTV footage, in which he opined that the bus motions did not appear to be associated with a movement that one might have anticipated would be associated with extreme force. Consequently, that he must accept the plaintiff’s description of the mechanics of the onset of his injury, which are not inconsistent with the symptoms subsequently experienced;
(d) Mr Dooley’s opinion from February 1998, that the plaintiff would continue to experience lumbar pain. Further, that in relation to his right shoulder, based on Mr Dooley’s viewing of the CCTV footage of the incident, and also the plaintiff’s exit from the bus, it was difficult to explain the subsequent onset of acute right shoulder girdle pain. The transport accident was not consistent with the plaintiff having sustained any injury to his right shoulder. The reported findings of the ultrasound related to naturally occurring degenerative rotator cuff change.
[15] AJCB p176
91The defendant submitted that, if the plaintiff’s right shoulder injury was suffered as a result of the incident on 7 June 2018, the consequences of the soft-tissue injury were not serious.
Credit
92It was submitted by Mr Scanlon that the plaintiff’s evidence should be treated with caution and that the Court should be slow to accept him as a credible witness. Mr Scanlon submitted that the plaintiff’s answers to questions about his driving and his differing descriptions of the transport accident to various doctors, when considered in light of the CCTV footage, impugned his credit. His evidence was unreliable.
93In relation to his driving ability, in cross-examination, the plaintiff was asked whether he was driving at all. He said he was not. He was then asked whether there was a Suzuki Vitara vehicle at his house, and whether he drove the vehicle on 22 February 2022. The plaintiff’s response was that he did not have a driver’s licence and he was not driving. When pressed however, he conceded that he drives when he needs to. He gave the example of driving to the bus stop to get a bus into town to go shopping.
94The plaintiff was also asked about the accounts he gave to each of Mr Westh, Dr Kennedy and Associate Professor Abdul Khalid, of how he sustained his injury in the transport accident.
95In his account of the incident to Mr Westh, the plaintiff said he had boarded a bus, and he was injured when the bus driver drove off before he could take his seat. He said he was off balance, and fell against the wheel arch behind the driver, and reached out with his right arm to try to save himself. He subsequently sat down.
96In his account to Dr Kennedy, the plaintiff said that he was on a bus carrying two bags of shopping. He went to step up onto the seat behind the driver, when the bus suddenly started very quickly and he was swung around, landing on the internal wheel arch with his lower back, and he swung his right arm up, injuring his right shoulder and neck. He called out to the driver, but got no response, and the incident was noted by a female passenger sitting across from him.
97It was put to the plaintiff that, when he saw Associate Professor Khalid, he recounted how the driver started the bus before he could sit down, causing him to fall over. A lady grabbed him, and he hit his back as he fell backwards.
98In his account to Associate Professor Love, the plaintiff told him that, as he twisted around as the bus moved, his right shoulder struck a restraining pole in the region behind the seat that he was moving to.
99When cross-examined, it was put to the plaintiff that his right shoulder did not hit anything during the incident on the bus. The plaintiff replied, “I just felt something hit the back of me”.[16] He said, in re-examination, that it was “on the right shoulder area”.[17]
[16] Transcript (“T”) 16, Line/s (“L”) 13
[17] T22; L29-30
100The CCTV footage of the incident was then played to the plaintiff, and he was challenged about whether he fell against the wheel arch; whether he swung his right arm up; whether his right shoulder struck anything, and whether he had been grabbed by a lady.
101Having reviewed the CCTV footage, I did not observe the plaintiff strike his right shoulder on the yellow pole. There may have been some glancing contact with the top of the seat in front of the yellow pole, but if that occurred, it was extremely minor. I observed the plaintiff’s lower back hit the yellow pole over the wheel arch. I did not see a lady “grab him”. I did not observe the plaintiff’s right arm swing.
102The fact that his lower back struck the yellow pole is consistent with the report the plaintiff made to his general practitioner on 15 June 2018, that he “[h]it lower back on guard on bus when about to sit down but bus took off. L Lx region”,[18] and the reference in the entry dated 22 June 2018 that it was “[t]ender for a few days post Rx. Now ISQ”.[19] It is also consistent with the photograph the plaintiff showed Mr Dooley of his back following the transport accident, where there was evident bruising of the lower lumbar region. The advice the plaintiff told Mr Dooley he had received that he had dislodged a vertebra in the accident, and that it had been manipulated back into place was also in accordance with the plaintiff’s lower back striking the yellow pole Similarly, the plaintiff’s description to Dr Kennedy of landing on the internal wheel arch with his lower back, the bruise the plaintiff said, in cross-examination, he sustained to his “flank”, and the fact that he agreed, in cross-examination, that the bruising or swelling was not to his shoulder also suggest that the injury sustained by the plaintiff during the transport accident was to his lower back.
[18] AJCB p170
[19] AJCB p170
103The CCTV footage, and the plaintiff’s differing accounts to several doctors of how he was injured during the transport accident; and the answers he gave during cross-examination with respect to his capacity to drive, impact upon the reliability of his evidence, overall, with respect to his right shoulder.
104Having considered the evidence overall, there were aspects of the plaintiff’s evidence that were clearly untruthful. I did not find the plaintiff to necessarily be dishonest overall, but I do agree with Dr Kennedy’s assessment that he was a “vague historian”.[20] I accept Mr Scanlon’s submission that I should be cautious before accepting the plaintiff’s evidence as to the nature of the injury he sustained, and his level of pain and restriction. This does not mean I must reject his evidence in its entirety, but I must treat his evidence circumspectly.
[20] AJCB p78
105The plaintiff was unsophisticated and, given his limited education and multiple and complicated pre-existing medical conditions, he may have struggled to recall when particular pain or symptoms occurred, when he was given various information, or to understand what he was told by medical practitioners.
106I propose to consider the medical and other evidence carefully before reaching a conclusion about whether the plaintiff sustained a right shoulder injury as a result of the transport accident. Reliable medical evidence should not be disregarded merely because of concerns about the reliability or credibility of the plaintiff.[21]
[21]Cakir (supra) at paragraph [49]; Petrovic (supra) at paragraph [76]; Pulling v Yarra Ranges Shire Council (supra) at paragraph [51]
What injury did the Plaintiff sustain as a result of the transport accident?
107Having considered all of the evidence, and for the reasons already detailed, I have concluded that, because of the transport accident, the plaintiff sustained a soft- tissue injury to his lower back. Whether the plaintiff also suffered some form of injury to his right shoulder as a result of the transport accident is a more nuanced enquiry.
108It was not in dispute between the parties that the plaintiff currently has an injury to his right shoulder comprising a partial thickness tear of the subscapularis tendon, a bursal surface-type tear of the mid-supraspinatus tendon, tendinosis and thickening of the subacromial bursa. The issue between the parties was whether that injury occurred as a result of the transport accident.
109It was submitted on behalf of the plaintiff that I should accept the plaintiff’s account of how he was injured. Even if the plaintiff had age-related degenerative changes to his shoulder before the transport accident, his shoulder was asymptomatic, and any age-related degeneration was aggravated by the transport accident because the pain and restriction only occurred after the transport accident. Accordingly, I should find that the transport accident caused the plaintiff’s right shoulder injury. The defendant submitted that I should accept that the plaintiff’s right shoulder injury was the result of age-related degenerative change. It relied on the opinion of Mr Dooley.
110I have been cautious with how I have approached the plaintiff’s evidence. The plaintiff bears the onus of proof. Having assessed all the evidence, I have formed the view that it is at least as likely that the plaintiff sustained the right shoulder injury after the transport accident as a result of degenerative change as it is that the injury occurred as a result of the transport accident. In those circumstances, I find that the plaintiff has not discharged his burden of proof.
111I have reached this conclusion for the following reasons.
112First, from the CCTV footage any impact to the plaintiff appeared to be only to his neck and lower back. There was no evidence showing involvement of the plaintiff’s right shoulder.
113Second, based on the UFS Medical Centre records, there was no report of a right shoulder injury in the weeks following the transport accident until the entry on 1 August 2018, when “injured right shoulder – rotator cuff injury”[22] was noted in the record of the consultation between the plaintiff and Dr Webster.
[22] AJCB p169
114The plaintiff said, in cross-examination, that he could not remember when he first complained of a right shoulder injury. He was asked, in re-examination, when he first saw a chiropractor and a physiotherapist following the transport accident. The effect of his evidence was that he saw a physiotherapist in the week following his accident. The evidence was that, Mr Snowden was a physiotherapist, and the UFS Medical Centre treatment records of Mr Snowden revealed two consultations between the plaintiff and Mr Snowden on 15 and 22 June 2018. There is no reference to a right shoulder injury in either note. Conversely, there is reference to “[h]it lower back on guard on bus”.[23]
[23] AJCB p170
115There is a further entry in the UFS medical records on 9 July 2018 prepared by Dr Bal. Reference is made to “[w]as about to take seat, bus took off, feel [sic] back. Seen physiotherapist and Chiropractor”.[24] No mention was made of the plaintiff’s right shoulder having been injured in the transport accident.
[24] AJCB p169
116I note, for completeness, that the plaintiff also said, in re-examination, he saw his chiropractor after he saw his general practitioner after the transport accident. He could not remember when that was, but there was no reference to a consultation with a chiropractor before the plaintiff saw Dr Webster on 1 August 2018.
117Third, a conclusion that the plaintiff did not sustain the right shoulder injury as a result of the transport accident is supported by the expert medical evidence.
118In his first report, Associate Professor Love was of the view that the right shoulder condition was caused by the motor vehicle accident. After seeing the CCTV footage, in his last report Associate Professor Love concluded that it was hard to say definitively that the right shoulder condition was caused by the transport accident, but that if the plaintiff’s account is accepted, then, in his opinion, the right shoulder injury was caused by the transport accident. As I already indicated, I did not find the plaintiff’s evidence to be reliable.
119Similarly, in his first report, Mr Westh, who also prepared a report at the request of the plaintiff, was of the opinion that the transport accident was responsible for the plaintiff’s current right shoulder and neck conditions. Upon reviewing the CCTV footage, however, Mr Westh in his third report, opined that it would appear that the plaintiff “may have only sustained minor soft tissue injuries when he overbalanced on the bus”.[25]
[25] AJCB p176
120Mr Dooley considered, after having seen the CCTV footage from the bus on 7 June 2018, that the plaintiff’s right shoulder condition was not caused by that accident but was due to age-related degenerative change. His view was that the reported findings related to naturally occurring degenerative rotator cuff change.
121Finally, Dr Kennedy was provided with the radiological reports of the ultrasound of the plaintiff’s right shoulder and also the radiology disc. He did not, it seems, view the CCTV footage. He provided a joint medical opinion. He considered that the plaintiff had sustained injuries to his neck and right shoulder region, as well as some aggravation of pre-existing problems in his lumbar spine as a consequence of the transport accident. He did not review the CCTV footage.
122Each of Associate Professor Love, Mr Westh and Mr Dooley, upon reviewing the CCTV footage, had reservations about accepting the plaintiff’s account that his right shoulder injury occurred as a result of the transport accident. While Associate Professor Love and Mr Westh’s opinions do not preclude a conclusion that the plaintiff may have sustained a more significant right shoulder injury, such as a rotator cuff tear, in my view, their opinions leave open the possibility that the plaintiff may equally not have sustained a right shoulder injury or may only have sustained a soft-tissue injury to his right shoulder. At least, in relation to Associate Professor Love’s opinion, it is premised on acceptance of the plaintiff’s history of the incident. For the reasons I have already expressed, I have found aspects of the plaintiff’s evidence unreliable. While I accept that, since 1 August 2018, he has had some pain emanating from his right shoulder, I do not consider his account of when that pain first arose, and the extent of it, to be reliable.
123Fourth, although there is pathology in the plaintiff’s right shoulder, there is no evidence when that pathology arose. The best that can be said is that it was present by 1 August 2018. While it is true that there was degeneration of the plaintiff’s right shoulder before the transport accident, which was asymptomatic, because there was no evidence of any impact on the plaintiff’s right shoulder during the transport accident, degenerative change is at least as likely an explanation of the condition of the plaintiff’s shoulder as the transport accident. Further, although there was no suggestion by the defendant of any alternative traumatic cause for the plaintiff’s right shoulder injury, the medical evidence did not suggest that a specific traumatic cause was necessary for naturally occurring degenerative causes to be an equally probable explanation for the current condition of the plaintiff’s right shoulder.
124After taking into account the medical evidence, as well as the CCTV footage, the plaintiff’s evidence and the totality of the remaining evidence, I have formed the view that the plaintiff’s right shoulder injury was not the result of, or directly caused by, the transport accident. In the end, I do not consider that the plaintiff has discharged the onus of proof which he bears.
125Having reached the conclusion I have in relation to causation, it is not strictly necessary that I consider the issue of whether the plaintiff’s right shoulder injury, and its consequences, are long term, or whether the consequences are serious. For completeness though, I propose to deal with these issues.
Permanence
126I accept that the effects of the right shoulder injury are long term.
127Mr Westh, in his report dated 23 November 2021, considered that the plaintiff’s injuries had stabilised, and that he will continue to experience activity-related right shoulder pain with permanent restriction of movement, and also activity related to neck and lower back pain. There was no opinion to the contrary and, in those circumstances, I accept that opinion.
Impairment consequences
Consequences of the injury
Pain
128In his second affidavit, the plaintiff described the pain he experiences from his right shoulder. He said his right shoulder continues to be the most painful injury for him. He said he experiences pain every day. The intensity of the pain varies depending on how much he is able to use his right arm. His right shoulder remains stiff, and his range of movement is limited.
129In his first affidavit, the plaintiff described experiencing daily aggravations to his right shoulder. He said he only needs to move his arm the wrong way and he can experience a sudden sharp shooting pain that he said could be excruciating.
130The plaintiff also described experiencing difficulty in lifting his arm above his head because of shoulder pain. He said, in his first affidavit, that this makes performing tasks above head height difficult. His ability to lift and carry heavy items is also restricted.
131Notwithstanding the plaintiff’s evidence as to his shoulder pain, he also said, in his first affidavit, that his back pain still comes and goes, although there are occasions when it is manageable, but it becomes increasingly stiff and sore if he stands or sits for too long. He has to avoid bending and squatting to pick things up from the floor.
132Because of the view I have taken in relation to the reliability of the plaintiff’s evidence, I do not accept that his shoulder injury manifests as the primary or most significant cause of his overall pain. The plaintiff said, in his first affidavit, that he injured his back umpiring football in about 1989. He said he has “had back pain on and off ever since, including various work-related aggravations”.[26] His doctors have told him that he has Scheuermann’s disease. He said he continues to have “right shoulder, neck and back pain”.[27] He said that his “right shoulder is the most painful of these injuries”.[28] However, he also said that his back pain “still comes and goes. There are occasions when it is manageable, but it becomes increasingly stiff and sore”[29] if he sits or stands for too long. He also said a further bus accident on 25 July 2019 aggravated his back pain for three to four weeks before it settled down to about the same level it was before that accident.
[26] AJCB p13
[27] AJCB p15
[28] AJCB p15
[29] AJCB p18
133Given the plaintiff’s several longstanding and significant back injuries, I find that his overall pain is at least as much a result of his back and neck injuries as his shoulder. This conclusion is consistent with the opinion of Mr Westh, in his report dated 23 November 2021, that the plaintiff would have activity-related right shoulder, neck and lower back pain. It also accords with the reference in Dr Kennedy’s report, dated 11 July 2019, to “[p]ersistent low back pain and stiffness”;[30] the reference in Mr Dooley’s report, dated 1 March 2022, to “ongoing neck and back pain”[31] and the prognosis in his report, dated 31 March 2022, that the plaintiff would be expected to note some occasional back pain consequent upon the injury sustained in the incident. I note also Mr Dooley’s opinion that adult patients with spasticity secondary to cerebral palsy can also note stiffness of the spine and some restricted range of motion of proximal joints, such as the shoulders and hips.
[30] AJCB p74
[31] AJCB p128
Medication and medical treatment
134In his second affidavit, the plaintiff said that he continues to take Codapane Forte. He said he has ceased taking Sertraline, as he feels that his psychological state has improved.
135I accept that the plaintiff has been taking Codapane Forte recently for pain. However, his affidavit is non-specific about the pain for which the Codapane Forte has been prescribed. Because I have found that the plaintiff’s pain is as much associated with his back and neck, as with his right shoulder, I likewise consider that the Codapane Forte was intended to treat all aspects of the plaintiff’s pain.
Work capacity
136It was submitted on behalf of the plaintiff that, immediately prior to the transport accident, he still retained a work capacity. This was notwithstanding that he had not been working since his employment was terminated with the engineering company in 2017. He referred to the report of Dr Christine Kilpatrick, dated 18 November 1996, and suggested that even though Dr Kilpatrick had opined that the plaintiff would be unable to obtain steady employment due to a number of factors, including his cerebral palsy with resultant physical disability, his back pain and his limited education, the plaintiff had attempted to and did, in fact, perform, a number of jobs that required a degree of physicality up to the date of the transport accident. It was submitted that he would have continued to do so, but for the injury to his right shoulder.
137The first issue is whether the plaintiff retained a work capacity after his employment was terminated with the engineering company in 2017. In my view, the plaintiff did not retain a work capacity prior to the transport accident. This is because, when his employment was terminated in 2017, he had significant ongoing mental health issues which prevented him from working.
138It was submitted on behalf of the plaintiff that, although the plaintiff had experienced mental health issues in the past, including after his employment was terminated in 2017, and when he was given some time off work to receive treatment for bullying, his mental health had since improved, and it was not preventing him from working. Although the plaintiff had not been working up to the transport accident, it was submitted there were no physical restrictions on him doing so, there had been no problems with his right shoulder before the transport accident, and he had retained a work capacity.
139In my view, this is not a fair reflection of the plaintiff’s mental state, or his capacity for work after his employment was terminated in 2017.
140First, the plaintiff’s employment was terminated in 2017 following incidents of workplace bullying and harassment. In his report, dated 31 March 2022, Mr Dooley recorded that the plaintiff had not worked since 2016/2017, and that a fellow staff member had threatened to kill him. The plaintiff said, in his first affidavit, that these workplace-bullying issues aggravated his anxiety and depression and he ceased work as a result.
141Second, these were not the first mental health issues the plaintiff had suffered. He said, in his affidavit, he suffered from a number of pre-existing injuries and conditions before the transport accident. The plaintiff made a couple of suicide attempts following his brother’s death in 1980 and from the 1980s he became a heavy drinker. He also conceded, in cross-examination, that he had suffered a lot of depression and anxiety as a result of a number of things that had happened in his life and agreed he had been prescribed antidepressant medication.
142Third, the entries in the treatment records of the UFS Medical Centre suggest that the plaintiff had ongoing mental health issues which prevented him returning to work. An entry on 27 January 2017, confirms that the plaintiff saw Dr Webster and he was diagnosed with depression following alleged bullying and harassment at work. Depression was again noted on 23 May 2017 and on 7 July 2017, when the plaintiff consulted Dr Webster again in relation to his mental health. On 7 July 2017, the plaintiff was also noted to have suffered some anxiety and panic attacks; the mental health team was called, and he was prescribed Sertraline, 50 milligrams oral tablet once per day and encouraged to see a psychologist. The plaintiff was provided with a Centrelink certificate which exempted him from job-seeking requirements. In his second affidavit, the plaintiff said to his general practitioner, Dr Webster had informed Centrelink that he was not fit to work because of his shoulder injury. Centrelink certificates issued before the transport accident could not logically have been issued in respect of the shoulder injury. I find that any Centrelink certificates issued to the plaintiff before the transport accident were issued in relation to his mental health issues.
143Fourth, contrary to the submission made by Mr Horner that, at the date of the transport accident the plaintiff was not receiving intensive treatment, and was no longer exempt from the JobSeeker requirements, entries in the treatment records of UFS Medical Centre suggest that the plaintiff continued to receive Centrelink certificates until at least 1 May 2018, just prior to the transport accident. The entry in the treatment records of the UFS Medical Centre for 9 July 2018 stated that the last certificate – which according to the medical record entries was the certificate provided on 1 May 2018 – was for depression. This suggests that the plaintiff’s mental health condition was continuing to impact his ability to work up until the transport accident and beyond.
144Fifth, the plaintiff’s affidavit identifies that, notwithstanding he had been encouraged to see a psychologist in May 2017, he did not see a psychologist until August 2018, after he attempted suicide.
145Each of these matters illustrates ongoing mental health issues on the part of the plaintiff which continued to affect his work capacity. The ongoing mental health issues, together with the fact that there was no evidence that the plaintiff ever returned to work, nor sought to return to work, in my view, support a finding that following the plaintiff’s termination of employment in 2017, he had no ongoing work capacity due to mental health issues.
146While I consider that the plaintiff’s mental health issues were enough, alone, to prevent him from returning to work, even if I am incorrect about this, I consider that his mental health issues, in conjunction with his longstanding ongoing back pain and pre-existing health issues, rendered him incapacitated for work from the date of his termination in 2017.
147In his first affidavit, the plaintiff referred to the back pain he had experienced on and off since he injured his back in a football umpiring accident in 1989 and a subsequent truck accident in 1992. Although he could not recall a complaint of back pain on 1 May 2018, when cross-examined, he accepted he likely attended Dr Webster that day with “vague back pain”.[32] He also accepted that, because of his back injury, before the transport accident, he was restricted in heavy lifting to 10 to 15 kilograms, depending on what had to be moved, and this impacted his ability to work. He said, in re-examination, that, in addition to his mental health issues, his back problems had prevented him from doing his work at the engineering firm even before the transport accident. Because the plaintiff had no work capacity before his transport accident, if he continues to be unable to work, he has not sustained a loss of earning capacity by reason of the transport accident.
[32] T19, L9
148If, contrary to what I have found, the plaintiff had a limited work capacity prior to the transport accident, the fact that the plaintiff can no longer work now, is not only the result of the right shoulder injury. While Mr Horner suggested the plaintiff had some capacity to perform part-time work and would have done so had he not injured his shoulder, this submission is at odds with the fact that, in the year prior to the transport accident, there was no evidence that the plaintiff either returned to work or attempted to return to work. It is also inconsistent with the fact that he was receiving certificates in respect of his depression rendering him incapacitated for work.
149It follows from the above, that if the plaintiff is unable to perform most of his previous forms of employment, including car detailing, which he enjoyed, or working in an office, that inability is not productive of a loss of earning capacity.
150For each of these reasons, I find that any loss of earning capacity was not the result of the right shoulder injury or the transport accident.
Sleep
151The plaintiff said, in his first affidavit, that his back pain did not currently affect his sleep. He described experiencing difficulty sleeping in his first affidavit. He said this was because of his shoulder. He said it is painful to sleep on his right side. He said he wakes with shoulder pain about three to four nights a week. Sometimes the neck pain keeps him up, but it is usually his shoulder pain that causes him the most difficulty. He uses a chiropractic pillow to support his shoulder and his neck. He said his poor sleep not only makes him tired during the day, but it also fatigues him emotionally and he often feels drained, cranky and uptight.
152I accept that the plaintiff has difficulties sleeping because of his right shoulder.
Mobility
153The plaintiff has long walked with a limp. In his first affidavit, he described how his limp affected his balance. He said that, sometimes as he walks, he needs to stick his right arm out to catch his balance. He said that this can cause sudden pain in his right shoulder. He said he also has pins and needles into his hands, usually as a result of a forced movement, lifting or moving his arm too far above his head.
154I accept that sudden movement might cause the plaintiff some pain and that this is partially a result of his right shoulder injury.
Activities of daily living
155In his first affidavit, the plaintiff said that, because his ability to lift and carry heavy items is restricted, he avoids doing large shopping trips. He said that is mainly due to his right shoulder pain.
156The plaintiff experiences difficulty putting clothes on over his right arm and now sits down to get dressed. He finds it difficult to reach his shoes and socks due to right shoulder pain. In June 2020, he raised his right arm to put on a singlet and his arm seemed to lock, and he experienced sudden shooting pain. It was that incident that caused him to recommence physiotherapy treatment.
Driving
157The plaintiff said, in his affidavit, he does not have a driver’s licence. Consequently, he has to catch the bus. He described further incidents when bus drivers have driven off before he has had a chance to properly sit down.
158It became apparent, in cross-examination, that the plaintiff does drive from time to time. For that reason, I reject this as an impairment consequence.
Bike riding
159In his first affidavit, the plaintiff said that, before his accident, he rode his bicycle a couple of times a week for errands and exercise. After the transport accident, he said he found that placing his arms on the handlebars was very uncomfortable because it increased his right shoulder pain. He now rides less frequently and for shorter distances because of the pain.
160In his second affidavit, the plaintiff said that he has not ridden his bicycle for about six months because the braced position of his arms often increases his right shoulder pain.
161The plaintiff has retained some ability to ride his bicycle, but I accept he is limited to some degree.
Findings
162Having considered all of the above consequences, I find that a significant amount of the plaintiff’s pain has resulted from his back and neck injuries. The plaintiff was experiencing constant pain in his back even before the transport injury. At times, he had been prescribed medication for his lower back and other injuries.
163While there is some pain as a result of the plaintiff’s right shoulder injury, I find that there is a similar level of pain derived from the plaintiff’s lower back and neck. In any event, the plaintiff’s affidavit material has not sufficiently differentiated the pain he now experiences.
164I find that the plaintiff is experiencing sleep disturbance as a result of his right shoulder injury.
165There has also been some impact to the plaintiff’s activities of daily living.
166I do not find that the plaintiff has suffered a loss of earning capacity as a result of his injuries.
Conclusion
167Having made these findings, I have formed the judgment that the plaintiff’s injuries, even if caused by the transport accident, do not reach the threshold of a serious injury. They cannot be described as “at least … very considerable” and certainly not more than “significant” or “marked” when compared with the range of possible impairments. Accordingly, he has not suffered a “serious injury” and his application should consequently be dismissed.
168I will hear argument with respect to costs.
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