Winter v TAC
[2015] VCC 1354
•1 October 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-14-03657
| ANDREA WINTER | Plaintiff |
| V | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 8 and 10 July 2015 | |
DATE OF JUDGMENT: | 1 October 2015 | |
CASE MAY BE CITED AS: | Winter v TAC | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1354 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – paragraph (a) of definition of “serious injury” – left shoulder injury – whether serious for the purposes of s93(4)(d) – relevant principles
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Petkovski v Galletti [1994] 1 VR 436; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Woolworths Ltd v Warfe[2013] VSCA 22; Halpin v Wilson Transformer Company Pty Ltd [2012] VSCA 235; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Mr P Bourke | Slater & Gordon |
| For the Defendant | Mr P Jens QC Ms F Ryan | Solicitor for the Transport Accident Commission |
Table of Contents
Introduction ....................................................................................................................................... 1
Relevant legal principles................................................................................................................. 2
The plaintiff’s background.............................................................................................................. 2
Pre-existing anxiety and depression............................................................................................ 3
The transport accident.................................................................................................................... 4
The plaintiff’s evidence.................................................................................................................... 4
Pain and suffering.......................................................................................................................... 4
Shoulder surgery...................................................................................................................... 4
Experience of pain................................................................................................................... 5
Impact on work and activities of daily living........................................................................... 6
Medication and other treatment.............................................................................................. 8
Sleep disturbance.................................................................................................................. 10
Anxiety and depression since the accident........................................................................ 10
Anxiety travelling in cars and taxis....................................................................................... 11
Subsequent injuries............................................................................................................... 11
Marital issues and present domestic arrangements................................................................ 12
The issues ....................................................................................................................................... 14
The plaintiff’s credit...................................................................................................................... 14
Stoicism........................................................................................................................................ 16
Compensable injury..................................................................................................................... 16
Plaintiff’s pre-existing presentation............................................................................................ 16
Findings as to extent and consequences of the plaintiff’s pre-existing conditions............... 18
Pain and suffering consequences of the transport accident ............................................. 19
Medical evidence – the plaintiff’s medical history after the transport accident..................... 19
The treating doctors..................................................................................................................... 20
Plaintiff’s medico-legal evidence............................................................................................... 23
Defendant’s medico-legal evidence.......................................................................................... 25
Is the compensable injury long-term for the purposes of the Act?.......................................... 26
The task of disentangling............................................................................................................ 27
Comparison of the plaintiff’s pre and post accident presentation.......................................... 27
Conclusions as to the pain and suffering consequences of the transport accident.............. 28
Pain.......................................................................................................................................... 28
Medication and treatment...................................................................................................... 29
Sleep interruption.................................................................................................................... 29
Effect on social life and activities of daily living................................................................... 30
Work restrictions..................................................................................................................... 31
Richards v Wylie..................................................................................................................... 32
Is the plaintiff’s left shoulder injury a serious injury for the purposes of the Act?........ 32
Conclusion....................................................................................................................................... 35
HER HONOUR:
Introduction
1 This is an application for leave to bring proceedings for damages pursuant to s 93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injury suffered by the plaintiff arising out of a transport accident (“the accident”) which occurred on 14 January 2011.
2 In order to obtain leave to bring proceedings for damages, the plaintiff must satisfy the Court that she has a “serious injury” as that term is defined in s.93(17) of the Act.
3 The definition of “serious injury” relied upon by the plaintiff is under s.93(17)(a) – “a serious long term impairment or loss of a body function.” The plaintiff initially also relied on the definition of “serious injury” under s.93(17)(b) – “permanent serious disfigurement by way of scarring to the left shoulder”, however, this ground was abandoned by Counsel for the plaintiff on the second day of the hearing.[1]
[1]Transcript (“T”) 115; Plaintiff’s submissions paragraph 3
4 The body function relied upon by the plaintiff is use of the left upper limb.
5 The plaintiff swore two affidavits and was cross-examined. In addition, both parties relied upon medical reports and other materials which were contained within the Plaintiff’s Court Book, which was tendered in evidence.[2] I have read all of the tendered material. In this judgment I will refer only to the relevant parts of the tendered materials.
[2]The Plaintiff’s Court Book was marked Ex P1
Relevant legal principles
6 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
7 The enquiry as to whether an injury is a “serious injury” for the purposes of the Act under sub-paragraph (a) of the definition, focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and second, (by reference to the consequences of that impairment), whether the injury is serious and long term.
8 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, fairly be described as at least “very considerable” and more than “significant” or “marked”.[3]
[3]Humphries & Anor v Poljak [1992] 2 VR 129 at 140-141
9 While the seriousness of an injury defined by sub-paragraph (a) can be measured in part, by a mental response to a physical impairment, the mental disorder cannot of itself constitute or be the producer of the impairment of the relevant body function.[4]
[4]Richards v Wylie (2000) 1 VR 79
The plaintiff’s background
10The plaintiff was born in Australia on 7 February 1968. She is now 47 years of age. She has one sibling, a brother aged 42 years, who lives in Perth. Her father is 70 years of age and lives in Asia. She has no contact with him. Her mother is 70 years of age and lives in Berwick. The plaintiff is close to her mother. The plaintiff is once divorced and had then remarried. She is now separated from her second husband. She has no children. She lives by herself. She is not presently in a relationship.
11The plaintiff left school after Year 10 and completed a business course.[5] She then worked in administration with several employers.[6] In 1998, she commenced work with Telstra as a senior credit consultant. She was working approximately 73.5 hours per fortnight. Her duties were desk based and involved a lot of computer work, including typing, preparing reports, spread sheets and power point presentations. Her duties also involved regular phone calls and photocopying.
[5]plaintiff’s first affidavit, sworn 29 May 2014 at paragraph 30, Ex P1 at pge 10
[6]Ex P1, pge 10, at paragraph 30
12She is left hand dominant.[7] She left Telstra in September 2014, having been made redundant. She began a new job the following week with Switched On Australia. Her duties are very similar to those she was required to undertake at Telstra. She remains in that job, working five days per week.
[7]Ex P1, pge 10, at paragraph 31
Pre-existing anxiety and depression
13Before the accident, the plaintiff suffered from significant psychological symptoms, including anxiety and depression. She was treated for depression in 2010 and prescribed Cipramil.[8] The depression arose because she was supporting her mum when her parents separated,[9] in the context of difficulties with her rental accommodation and also in the context of significant difficulties she experienced while struggling to manage a team at work.[10]
[8]Ex P1, pge 18, paragraph 18
[9]Ex P1, pge 18, paragraph 18
[10]Ex P1, pge 18, paragraph 18; see also T70-71
14The plaintiff acknowledged that by 2010, the anxiety condition from which she suffered was “entrenched”, and that she had also experienced associated depression by that time.[11]
[11]T71
The transport accident
15The plaintiff described the transport accident and its immediate aftermath in the following terms:
“2. On 14 January 2011…I was a front seat passenger in a taxi and was on my way to Port Melbourne to run an errand. As we were travelling along Batemans Hill Drive and about to turn right into Wurundjery (sic) Way, another vehicle failed to stop at a traffic light and collided with us on the drivers side. The impact caused the taxi to spin around..”
4. As a result of the accident, I believe I sustained the following injuries:
· Injury to my neck;
· Injury to my left shoulder;
· Injury to my right knee;
· Psychological trauma.
5. I was taken by ambulance to St Vincent’s hospital. I was kept for observation for a few hours and discharged home with pain relief medication in the care of my local doctor.
6. The pain in my left shoulder gradually increased, so I returned to St Vincent’s hospital on 15 February 2011. I was referred for an ultrasound of the left shoulder and sent home with analgesia.”[12]
[12]Ex P1, pge 7, at paragraphs 2 and 4-6
The plaintiff’s evidence
16The plaintiff swore two affidavits, the first on 29 May 2014 and the second on 25 May 2015. She was also extensively cross-examined.
Pain and suffering
17In summary, the plaintiff’s evidence as to the pain and suffering consequences of her left upper limb injury was as follows:
Shoulder surgery
(a) following the transport accident, her symptoms persisted to such an extent that Associate Professor Goldwasser recommended she have surgery. She underwent a sub-acromial decompression of the left shoulder at Fawkner Hospital on 21 January 2013.[13] Under cross-examination she acknowledged that this operation did help to some degree;[14]
[13]Ex P1, pge 8, paragraph 11-12
[14]T39-40
Experience of pain
(b) while the surgery improved her range of movement,[15] she continues to experience constant left shoulder pain and stiffness which varies in intensity. In 2014 she rated the pain as 5 out of 10,[16] but the pain and stiffness have become worse since she ceased physiotherapy in mid-2014.[17] In 2015 she acknowledged that her pain has recently worsened because of stress;[18]
[15]Ex P1, pge 8, paragraph 14
[16]Ex P1, pge 8, paragraph 14
17Ex P1, pge 15, paragraph 6, but cf evidence given under cross examination as to whether there was actually any need to cease physiotherapy
[18]Ex P1, pge 16, paragraph 6
(c) the pain radiates up to her neck and down her arm. By reason of the pain referred to her neck, she has difficulty sitting for prolonged periods of time.[19] At least once per day she experiences a sharp stabbing pain in the shoulder.[20] The pain builds during the day to the point where her shoulder throbs;[21]
[19]Ex P1, pge 8, paragraph 14
[20]Ex P1, pge 8, paragraph 14
[21]Ex P1, pge 16, paragraph 7
(d) as a result of the surgery, she has a 7cm scar which is tender,[22] although not as tender as it was. She avoids sleeping on her left side because of the pain caused by the scar. She avoids carrying bags over her left shoulder. She uses a backpack that she can carry over her right shoulder;[23]
[22]Ex P1, pge 9, paragraphs 19 and 21
[23]Ex P1, pge 17, paragraph 11
Impact on work and activities of daily living
(e) under cross-examination she agreed that after the transport accident, she was able to keep performing the same type of work as she had been doing beforehand, working on a keyboard every day.[24] However, she said that she has taken sick days while in her new job by reason of her left arm “seizing up”. She also said that she would have taken a lot more time off, but in her present job there are only two employees in the office, so it is difficult;[25]
[24]T95 (21-24)
[25]Ex P1, pge 19, paragraph 21
(f) at work she usually gets through to about 2pm before starting to struggle with the pain. She is not able to do much when she gets home due to worsening pain in her left shoulder and exhaustion.;[26]
[26]Ex P1, pge 19, paragraph 22
(g) the range of movement in her left shoulder has improved, but is not back to normal.[27] She has great difficulty reaching above shoulder height. She has reduced grip strength and avoids lifting anything heavy with her left arm;[28]
[27]Ex P1, pge 8, paragraph 16
[28]Ex P1, pge 8, paragraph 16
(h) she struggles with housework and no longer has her husband to help her with it. Her ex-husband’s family help her as much as they can. She does her own washing but cannot hang it on the line outside. She does dusting and basic tidying.[29] She has difficulty cooking.[30] She can do tasks like washing dishes.[31] Her mother in law does the heavy cleaning, including vacuuming.[32] Her brother in law and sister in law walk the dog every couple of days.[33] She tried to walk the dog once but he was too strong for her to control with one arm;[34]
[29]Ex P1, pge 20, paragraph 23
[30]Ex P1, pge 10, paragraph 36
[31]T95 (28-31)
[32]T96 (1)
[33]T96 (4-5)
[34]T108 (2-4)
(i) she is able to do the grocery shopping but has to be careful not to carry heavy shopping bags with her left arm.[35] She does not do any gardening. She said that she never really enjoyed gardening, but was able to do what had to be done, such as weeding or mowing the lawn. She now relies on her brother in law to mow the lawn every fortnight;[36]
[35]Ex P1, pge 10, paragraph 35
[36]Ex P1, pge 20, paragraph 27
(j) she can manage to do up her bra but still avoids jumpers, clothes with buttons or anything that has to be done up;[37]
[37]Ex P1, pge 20, paragraph 26
(k) she cannot interact with her younger nephews as she cannot lift them or play with them in an unrestricted manner. She finds this upsetting;[38]
[38]Ex P1, pge 10, paragraph 39
(l) the main joy and consolation in her life is the Hawthorn Football Club. She goes to almost every game they play. She and her mother intend to go to the three Tasmanian games this year.[39] She deposed to the fact that she used to carry the banners, flags and pom poms. She still attends every Hawthorn game but is no longer able to carry the banners, flags or pom poms. She finds this frustrating as she feels she cannot enjoy the game as much.[40] Having been a long term supporter, she said that it is hard for her to explain how disappointing it is not to be able to fully support the team the way she has always done.[41]
[39]Ex P1, pge 21, paragraph 29
[40]Ex P1, pge 10, paragraph 40
[41]Ex P1, pge 21, paragraph 29
(m) under cross-examination she said that she would normally go to seven or eight interstate football matches in which Hawthorn is playing. She said that she has missed only one match in Melbourne and that was because her mother was unwell.[42] She said that despite what was in her affidavit, she only ever really used the smaller pom poms (not the heavy flags and larger pom poms).[43] She said that she cannot now use the small pom poms when she attends the football, but she still sits in the cheer squad and “just cheers more so than have the things flying around”;[44]
[42]T87 (11-13)
[43]T103-104
[44]T105 (4-9)
(n) prior to the accident she enjoyed swimming, which she can no longer do. She still goes to the swimming pool but usually just walks in the water.[45] She also loved to go ten pin bowling. She tried once since the accident and was unable to lift or bowl;[46]
[45]Ex P1, pge 11, paragraph 41
[46]Ex P1, pge 11, paragraph 43
(o) she used to do a lot of embroidery before the accident. She would cross-stitch and would often make wedding or engagement gifts. She is no longer able to do this;[47]
[47]Ex P1, pge 11, paragraph 42
(p) she said that she can’t look after her elderly mother (who lives in Berwick) as much as she would like to and feels guilty about this.[48]
[48]Ex P1, pge 21, paragraph 30
Medication and other treatment
(q) in her affidavits, the plaintiff deposed to the fact that she uses painkillers to help her get through the week.[49] However, under cross-examination the plaintiff said that she no longer takes any medication because she does not want to be reliant upon it;[50]
[49]Ex P1, pge 19, paragraph 22
[50]T38 (1-11)
(r) prior to this decision, she had been taking Panadol several times per week for the pain.[51] She said that she no longer takes Oxycontin or Panadeine Forte. Until recently she had been taking over the counter medications when she needed them, usually Mersyndol Day Strength. She usually took this medication every second or third day, but sometimes four times in a week.[52] She used to save the stronger painkilling medication for Friday and Saturday nights, when she did not have to work the next day;[53]
[51]Ex P1, pge 8, paragraph 17
[52]Ex P1, pge 16, paragraph 9
[53]Ex P1, pge 16, paragraph 7
(s) she still uses heat and cold packs about every second day. She used to use a sling, but no longer has to;[54]
[54]Ex P1, pge 17, paragraph 10
(t) under cross-examination she acknowledged that she has been attending Civic Park Medical Centre (CPM) in Drouin since October 2013.[55] She agreed that she had attended that practice more than 18 times since October 2013[56] and that the majority of those attendances were for psychological problems and diabetes checks.[57] She acknowledged that on only one occasion, has she mentioned her left shoulder issue and that was in December 2014.[58] She agreed that she does not take any pain killing medication via prescription[59] and that she has not “specifically” attended the doctor in respect of her shoulder at all in 2015;[60]
[55] T87 (23-30)
[56]T88 (20-21)
[57]T88 (28-31)
[58]T88 (24-27)
[59]T89 (1-4)
[60]T89 (5-11); she accepted that if there was nothing in the Civic Park Medical Centre notes about her shoulder, it meant that she did not attend the doctor for the purpose (T89 (12-14)); she agreed that she had a good relationship with her current doctors, Dr Dow and Dr Essam and that she would go there about her shoulder if she had a “real problem” with it
Sleep disturbance
(u) she said that her sleep is disturbed by pain and nightmares and as a result, she feels tired during the day.[61] She usually sleeps for about two hours at a time before waking with pain. She sometimes gets up and turns on music or television when she wakes. In the past she would sometimes take painkilling tablets when she got up.[62] However, under cross-examination, she agreed that she had experienced more than ten years of significant sleep disturbances, prior to the accident;[63]
[61] Ex P1, pge 8, paragraph 15
[62]Ex P1, pge 16, paragraph 7
[63]T36 (13-20)
Anxiety and depression since the accident
(v) since the accident she has continued to experience psychological symptoms and depression, together with accident-related thoughts. She has become more emotional and easily teary, as well as irritable and short-tempered.[64] Her confidence and self esteem have been impacted and she has had suicidal thoughts.[65] Her concentration is not as good as it used to be before the transport accident;[66]
[64]Ex P1, pge 9, paragraph 24
[65]Ex P1, pge 9, paragraph 24
[66]Ex P1, pge 8, paragraph 15
(w) due to her ongoing symptoms, she was referred to a psychologist in April 2013, but did not end up making an appointment. She continues to be prescribed anti-depressants by her general practitioner and presently takes Cipramil 20mg daily;[67]
[67]Ex P1, pge 9, paragraph 26
(x) despite the clear inference from her affidavits that her present anxiety and depression were accident related, as referred to above, she freely agreed under cross examination that by 2010 the anxiety condition from which she suffered was “entrenched”, and that she had also experienced associated depression by that time;[68]
[68]T71
Anxiety travelling in cars and taxis
(y) she is a nervous passenger in cars and now avoids travelling in taxis as much as possible.[69] Under cross-examination she said that she moved to Drouin in around September 2013.[70] After that move, she would travel to the CBD to work, either by train, or “once or twice a week”, by car driven by her husband. [71] She was able to do this despite the anxiety from which she said she suffers when travelling as a passenger in a vehicle.[72] She said that it was “a long trip”.[73] She agreed that when a lift was offered to her, she was pleased to have a driver take her to work.[74] She also admitted that after the football she gets a lift home to her mother’s place in Berwick, usually by car;[75]
[69]Ex P1, pge 9, paragraph 25
[70]T53 (4-6)
[71]T53 (17) – T54 (31); T57 (30-31)
[72]T58 (22-24)
[73]T58 (25-27)
[74]T59 (4-11)
[75]T93 (25-29)
Subsequent injuries
(z) since the transport accident she has injured her right wrist in November 2012 and sprained her left ankle in January 2013. She recovered well from both of these events and did not suffer any significant ongoing symptoms.[76] Despite a note in the medical records, she could not recall injuring her shoulder in 2010. [77]
[76]Ex P1, pge 9, paragraph 29
[77]Ex P1, pge 18, paragraph 17
Marital issues and present domestic arrangements
18. Difficulties with the plaintiff’s marriage were an important part of background to the plaintiff’s current presentation. In summary, her evidence in relation to this matter, and her present domestic arrangements, was as follows:
(a) she agreed that after the accident, when she was in a new relationship with her then to be second husband, she was happy,[78] and very happy to marry him.[79] She acknowledged that the marriage didn’t work because her second husband was a different character to what she thought.[80] She agreed that although she was in pain following the accident, her injuries did not prevent her from commencing and continuing a long term relationship;[81]
[78]T95-96
[79]T96 (10)
[80]T97 (9-14)
[81]T40 (23-26)
(b) in her affidavits she deposed to the fact that her relationship with her husband had been affected by the accident, in that she tends to “take it out on him and can get snappy”;[82]
[82]Ex P1, pge 10, paragraph 38
(c) however, under cross-examination she agreed that the difficulties in her relationship with her second husband were due to serious accusations of sexual misconduct being made against him.[83] Later in the cross examination, after a close examination of the discrepancies between the content of her first affidavit and the relevant medical records, the plaintiff acknowledged that there was “substantial interruption” in her relationship with her husband, “as a consequence of the legal matters, as opposed to [her] shoulder injury.”[84] Further, she confirmed that:
[83]T44 (2-21)
[84]T46 (5) – T49 (31)
(i) it was in the context of the stress caused by the pending court case that both she and her husband (on separate occasions), had overdosed on medication;[85]
[85]T46 (15) – T47(19)
(ii) her second husband had always been short tempered, and became increasingly so during her relationship with him;[86]
[86]T91 (12-15)
(iii) in October 2014, her second husband had become violent and pushed her against a wall,[87] and that in January 2015, he pushed her up against a cupboard;[88]
[87]T91 (18-19)
[88]T91 (20-21)
(iv) she recently discovered that he had been unfaithful throughout their relationship, and she had thrown him out of home.[89] He continued to send her threatening messages after she had forced him to leave; and
[89]T91 (22-29)
(v) she remains deeply fearful of her husband, to the point where she has taken out an apprehended violence order against him;[90]
[90]T93 (4-17)
(d) in relation to her present domestic arrangements, the plaintiff said that she stays in Drouin because of the family support that she has there. Her mother comes to visit her, she is close to her in-laws, she has a lease on her unit that she doesn’t want to break, she is close to her nephews[91] and she now has a puppy to look after. There is good reason to stay in Drouin because she is established there now and it is a good situation for her:[92] “everything is in Drouin”;[93]
The issues
The plaintiff’s credit
19 The plaintiff’s credit was vigorously tested during the hearing of this matter.
[91]T98 (14-22)
[92]T98 (23-29)
[93]T94 (5-23)
20 It was the defendant’s submission that the plaintiff had omitted to disclose a number of significant matters in her affidavits and her evidence to the Court, and that as a result, the Court should be reluctant to accept her uncorroborated assertions as to the consequences of the injury she sustained in the transport accident.[94]
[94]defendant’s submission paragraph 3(iii)
21 In contrast, the plaintiff’s submission was that she should be accepted as a witness of truth and that the Court should accept both her affidavit evidence and her evidence given in the witness box.[95]
[95]plaintiff’s submission paragraph 4
22 In summary, the defendant’s attack on the plaintiff focused on her failure to disclose in her affidavits and to relevant medical practitioners:
(a) her pre-accident shoulder, neck and back symptoms;
(b) the fact that her second husband had been facing very serious criminal charges, together with the effects which that matter had on her personally and on her relationship with her husband;
(c) the dramatic deterioration of her second marriage, the abuse she suffered at the hands of her second husband and the effects of those events on her personally; and
(d) her very significant pre and post-accident psychiatric history, which was unrelated to the transport accident.
23 In response, Counsel for the plaintiff submitted that the case demonstrated the “very real limitations of the originating motion proceeding, relying as it does on affidavits which…are drawn by lawyers”. The submission was that the plaintiff was in effect, reliant on being asked about matters which the lawyer thought would be relevant to include in the affidavit, and that the plaintiff “very much had her hands tied in relation to what goes in them”. It was submitted that everything in the affidavits is true, “what she’s criticised for is what isn’t in there.”[96]
[96]see submissions made at T127(18-28) ff
24 Having had the benefit of observing the plaintiff while she was giving evidence to the Court, I formed the view that she was an intelligent woman who gave her evidence to the Court in a fairly open and honest manner. However, when the plaintiff’s medical history is examined, it is clear that contrary to what was contained in her affidavits, there were many pre-existing medical conditions from which she suffered and for which she was receiving treatment, which touched upon the matters raised in this application for leave.
25 There is no evidence before the Court which would allow me to conclude that the plaintiff deliberately omitted these matters from her affidavits. The plaintiff’s solicitor was not required to attend for cross-examination in relation to the manner in which the plaintiff’s affidavits were drawn. However, a proper analysis of the plaintiff’s pre-accident presentation demonstrates that at best, the plaintiff was a poor historian. This gives rise to the need to approach the plaintiff’s affidavit evidence with caution, assessing that evidence by reference to a detailed examination of the medical records which were put into evidence during the proceeding, to the concessions made by the plaintiff under cross examination and to other, objective evidence which might impact upon the veracity of the plaintiff’s account of matters.
Stoicism
26 It was submitted by counsel for the plaintiff that the Court ought to find that she is somewhat stoic in nature. I accept this submission insofar as there is evidence that the plaintiff persists with her present work, despite the fact that she suffers from daily pain which increases as the work day goes on. Similarly, I accept that the plaintiff shows a degree of stoicism in the fact that she avoids taking any medication at present, as she is concerned that she will become dependent upon it. To that extent, the plaintiff endures daily pain that is worse than it would otherwise be, in an effort to avoid such dependence.
Compensable injury
27 The details and occurrence of the transport accident are not in dispute.
28 In submissions, Counsel for the defendant did not dispute that the plaintiff had a compensable injury, in that it was accepted that she had suffered an organic injury to her shoulder in the transport accident.[97] The defendant’s submission was simply that the consequences to the plaintiff of that injury do not satisfy the serious injury test.[98]
[97]T23, T115
[98]T115
Plaintiff’s pre-existing presentation
29 The defendant’s primary submission was that the injury which the plaintiff suffered to her shoulder in the transport accident amounted to an aggravation of pre-existing shoulder symptoms.[99] The defendant’s alternative submission was that even if there was no pre-existing shoulder injury, the consequences of the plaintiff’s overall pre-existing presentation were such that, when compared with the consequences of the shoulder injury suffered by her in the transport accident, it could not be said that the plaintiff had suffered a serious injury as a result of the transport accident.[100]
[99]paragraph 3(i) defendant’s submission
[100] paragraph 3(ii) defendant’s submission
30 While in 2010, the plaintiff had experienced an episode of left-sided shoulder pain sufficient to warrant her doctor recommending that she undergo an ultra-sound of her left shoulder, this investigation did not in fact take place.[101] There was no ongoing complaint of left-sided shoulder pain from the plaintiff following this entry in the medical records on 19 January 2010.
[101]T5(21-30); see also: Ex P1, pge 18, paragraph 17; Ex P1, pge 147
31 Having carefully considered all of the relevant evidence, including that plaintiff’s medical records, I have concluded that there is no evidence upon which I could be satisfied that the plaintiff had a pre-existing left-sided shoulder injury.
32 Having excluded the existence of a pre-existing left-sided shoulder injury, I must nevertheless conduct an analysis of the plaintiff’s overall pre-accident presentation in order to determine whether the consequences of the injury suffered in the transport accident satisfy the test set out in the Act.[102]
[102] Petkovski v Galletti [1994] 1 VR 436 at 444
33 In this case, it was common ground that prior to the transport accident the plaintiff suffered from a multiplicity of pre-existing conditions which resulted in numerous consequences to the plaintiff. There was a dispute as to the extent of the consequences of these matters to the plaintiff prior to the transport accident.
34 It was the plaintiff’s contention that the consequences of her pre-existing medical conditions were relatively minor and not the subject of any significant or ongoing complaint, prior to the date of the transport accident.
35 On the other hand, the defendant’s position was that the consequences of the pre-existing physical and psychiatric conditions, her domestic situation and the aftermath of her destructive and abusive first marriage were, prior to the transport accident, very serious. Those consequences included interrupted sleep, anxiety, stress and depression, disruption to her ability to adequately perform her work duties, adverse effects on her marriage, as well as physical symptoms such as shoulder, back and neck pain.
Findings as to extent and consequences of the plaintiff’s pre-existing conditions
36 Having considered all of the evidence in relation to the plaintiff’s pre-existing medical conditions, in particular the plaintiff’s medical records and her viva voce evidence, I find that prior to the transport accident, the plaintiff suffered from:
(a) interrupted sleep, causing stress and fatigue during the day and at work;
(b) anxiety, stress and depression, causing, amongst other things, high blood pressure, disruption to her ability adequately to perform her work duties and the need to take anti-depressant medication;
(c) intermittent physical symptoms from fibromyalgia, including shoulder, back and neck pain which had in the past required the prescription of anti-inflammatory and pain killing medication, including Tramal last prescribed on 23 March 2009[103] and Voltaren last prescribed on 19 January 2010;[104] and
(d) Type 2 Diabetes, recurrent upper respiratory tract infections, debilitating headaches and intermittent diahorrea, vomiting and nausea.
[103] see Brunswick Betta Health Full Patient History, marked as Ex D1
[104] Ex P1, pge 147
37 I find that despite her numerous medical ailments, the plaintiff did not at any time in the past suffer from constant pain in any part of her body, including her left shoulder area. Rather, the pain from which the plaintiff did suffer in various parts of her body (including her left shoulder), was intermittent. I also find that the plaintiff’s use of medication such as Voltaren and Tramal to control the pain in her body, had ceased well prior to the transport accident.
38 Further, despite the pain from which she has suffered in the past, I find that the plaintiff was able to engage in the following social activities and activities of daily living:
(a) attending Hawthorn football matches, including seven to eight interstate games during the football season;
(b) swimming;
(c) socialising by going out “occasionally” and participating in church group activities including going ten pin bowling and to the movies;
(d) reading at home;
(e) embroidery and cross stitch;
(f) household chores including vacuuming, mopping, cleaning the bathroom, making the bed, hanging out the washing, grocery shopping, cooking meals and gardening;
(g) dressing herself.
Pain and suffering consequences of the transport accident
Medical evidence–the plaintiff’s medical history after the transport accident
39 Since the transport accident in January 2011, the plaintiff has attended a general practitioner on twelve[105] occasions in respect of left shoulder symptoms arising from the transport accident and/or their sequalae.
[105]there is an attendance on 17 May 2012 in relation to a further incident involving one of the plaintiff’s shoulders. There is no evidence about the severity of the incident, nor is it clear that this incident involved the plaintiff’s left shoulder see T27-28
40 In addition to the attendances in respect of her left-shoulder pain, I note that since the transport accident, the plaintiff also continued to receive medical treatment for conditions which were unrelated to that accident, most significantly:
(a) depression, stress and anxiety associated with multiple stressors, requiring anti-depressant medication; and
(b) severe marital disharmony and ultimately the breakdown of the marriage, associated with her husband’s prosecution for alleged sexual offences, resulting in extreme stress, occasional suicidal ideation and ultimately, overdose of medication by both partners on different occasions, each requiring hospitalisation.
The treating doctors
41 Following the transport accident, the plaintiff saw the following treating doctors, whose opinions in relation to her presentation were as follows:
(a) St Vincent’s Hospital Emergency Department, report dated 29 October 2013:
“Ms Andrea Winter presented to St Vincent’s Emergency on 15 February 2011…complaining of left shoulder pain increasing since a documented motor vehicle accident one month earlier…it was noted there was some decreased movement of her cervical spine especially left rotation and tenderness of the C3/4/5/6 levels of the cervical spine with overlying paraspinal muscle spasm. She had an ultrasound of her left shoulder organised as an outpatient…but her diagnosis on her assessment was made of probably a whiplash injury to her cervical spine with ongoing facet joint and nerve irritation and possibility of injury to her left rotator cuff especially supraspinatus tendon…”[106]
[106]Ex P1, pge 40
(b) Dr Richard Dallalana (orthopaedic surgeon), report dated 7 April 2011:
“Andrea…complains of left sided pain in the region of the upper chest, neck and shoulder region extending to the elbow. She states the onset of this to be shortly after a motor vehicle accident on 14th January 2011 where she was a passenger in a taxi cab which was struck by another car…Clinically she is exhibiting more a picture of a cervical spine or whiplash type injury with pain referred down the arm. There may be a possible contribution from her shoulder itself however I am not quite convinced of this as yet…Ultrasound is suggestive of a rotator cuff tear...”;[107]
[107]Ex P1, pge 25.1
(c) Associate Professor Miron Goldwasser (orthopaedic surgeon), report dated 15 November 2013:
“SUMMARY
Ms Andrea Winter suffered injuries, with pain in her left shoulder area being the most troublesome, following a motor vehicle accident.
I considered she probably had suffered soft tissue injuries and this had included the shoulder and probably also her neck. Most likely, there was more than one source contributing to her pain.
She subsequently underwent surgery to her left shoulder with sub-acromial decompression, with a clinical improvement but not complete resolution of her symptoms.
When last seen on 11 June 2013, it was noted her condition was continuing to gradually improve but had not returned to normality.
…The prognosis is not completely clear, as there may be more than one source of her pain and this has not been fully diagnosed…
I am not aware of any pre-existing conditions. I did note that Ms Winter has a past history of diabetes and hypertension and that her weight of 120kg is more than normal for a lady of her height….”;[108]
[108]Ex P1, pge 34-36
42 In relation to the plaintiff’s work and other restrictions, Mr Goldwasser stated: [109]
“When I saw Ms Winter on 11 June 2013, I considered she was able to work six hours a day and gradually increase this to normal hours over the next few weeks…most likely Ms Winter would be able to continue to perform her work in the future……”
[109] Ex P1, pge 36
43 The plaintiff has had physiotherapy treatment since the transport accident and relied upon a report dated 1 May 2015 from Mr Mark Allcock of Gippsland Physiotherapy. Mr Alcock saw the plaintiff on three occasions between 24 January – 14 February 2015.[110] In his report he noted “from my limited time with Andrea it is hard to be exact with a prognosis. However, considering the accident was four years ago and there has been little improvement I would say she is facing permanent disability.”[111] In relation to the plaintiff’s work and other restrictions, Mr Alcock concluded “Her capacity for work will be affected if her shoulder is in positions that aggravate [it] and if she has to lift weights over five kilograms.”[112]
[110]Ex P1, pge 77-78
[111]Ex P1, pge 78
[112]Ex P1, pge 78
44 In addition to the medical practitioners referred to above, the plaintiff has seen Erin Dolan, psychologist, who in a report dated 29 April 2015,[113] noted that she had seen the plaintiff on four occasions for “trauma symptoms associated [with] being in a car accident on the 14th January 2011.” She reported that the plaintiff suffered from “repetitive thoughts of the accident, chronic pain (shoulder pain), post traumatic stress symptoms and adjustment disorder.” In her opinion, each of those symptoms was a direct result of the car accident.
[113]Ex P1, pges 69-76
45 Ms Dolan diagnosed the plaintiff as suffering from “Persistent Anxiety Disorder with mixed anxiety and depressed mood.” Her opinion was that the plaintiff had suffered significant psychological distress, including depressive and anxious symptoms and increased hyperarousal as a result of the car accident and her injuries.[114]
[114]Ex P1, pge 74
46 Ms Dolan noted that the plaintiff had “no reported or documented psychological or psychiatric history.”[115] Ms Dolan was not informed of the plaintiff’s wide ranging psychiatric history, nor of the fact that it interfered with the plaintiff’s work capacity to the point where her duties and managerial responsibilities needed to be reduced. Understandably, in the absence of this history, Ms Dolan concluded that the major stressor presently experienced by the plaintiff was the transport accident and therefore attributed her present psychiatric presentation to that incident.
[115]Ex P1, pge 74
47 I reject Ms Dolan’s opinion, in particular her conclusions as to the causal relationship between the plaintiff’s present psychological and psychiatric symptoms and the transport accident, by reason of the inaccurate history on which it is based.
Plaintiff’s medico-legal evidence
48 The plaintiff relied upon medico-legal reports from Dr Albert Kaplan (psychiatrist), Mr Murray Stapleton (plastic and hand surgeon), Mr Garry Grossbard (orthopaedic surgeon) and Mr Stephen Doig (orthopaedic surgeon).
49 Dr Kaplan provided two reports, the first dated 17 February 2014[116] and the second dated 30 March 2015. In Dr Kaplan’s opinion, the plaintiff suffers from an Adjustment Disorder with Mixed Anxiety and depressed mood as a result of the injuries which she suffered in the transport accident. In his most recent report, he considered that the plaintiff’s psychiatric presentation was being aggravated as a result of the stress she has and continues to experience as a result of the abusive behaviour of her estranged husband. In Dr Kaplan’s opinion, the plaintiff continues “to experience some traumatisation symptoms in relation to her frightening accident, including intrusive thoughts of that event, and anxiety with regard to travelling as a car passenger and travelling in taxis.”[117]
[116]Ex P1, pges 79-88
[117]Ex P1, pge 93
50 Like Ms Dolan, Dr Kaplan was not informed of the extent of the plaintiff’s psychiatric history, nor of the fact that it persisted well beyond the break up of the plaintiff’s first marriage, and interfered dramatically with her life and with her work capacity. Given this, like Ms Dolan, Dr Kaplan concluded that the major stressor experienced by the plaintiff was the transport accident and attributed her present psychiatric presentation to that incident.
51 On the basis of the inaccurate history which he was given, I reject Dr Kaplan’s opinion that the plaintiff’s broader psychiatric symptoms are linked to the transport accident. I accept Dr Kaplan’s opinion that the plaintiff experiences some anxiety when travelling in a car as a passenger, though I note her own evidence that she does so frequently, despite the existence of this anxiety.
52 Mr Stapleton provided two reports, the first dated 10 April 2014[118] and the second dated 5 March 2015.[119] Mr Stapleton reported that the plaintiff’s capacity for “employment, domestic, social and leisure activities are all affected. She cannot lift, push, pull or reach above the shoulder joint, so all the activities involving her left hand are now and forever in the future affected.”[120] He noted that the plaintiff’s pain “seems to be controlled with soluble Panadeine.” Lastly he noted that the plaintiff has a 7 cm scar, which “remains tender. She has to be careful with a bra strap or a car seatbelt when she is sitting in the passenger seat of a motor vehicle.”[121]
[118]Ex P1, pges 97-100
[119]Ex P1, pges 101-104
[120]Ex P1, pge 99
[121]Ex P1, pge 103
53 Mr Grossbard provided a report dated 31 March 2014. In it, he noted that the plaintiff described pain “in the front and top of her shoulder as well as radiating into the upper arm…it [is] constant although the intensity varies. It is worse in the morning or after a day’s work. She describes a dull, constant pain with occasional episodes of sharp pain. She does continue to wake with pain and is lucky to get three hours sleep each night. She feels her range of motion is restricted and she is unable to work above her head. She described a pulling sensation in the arm when she reaches backwards. There is occasional paraesthesia which she feels into the middle three digits and this tends to occur each couple of weeks lasting for five or ten minutes at a time. There is some concern about the scar and she tends to use Bio Oil on it each day.”[122]
[122]Ex P1, pge 106
54 In relation to the plaintiff’s work, social and recreational restrictions, Mr Grossbard concluded: “She has no difficulty walking, sitting or standing but does have some difficulty dressing and undressing, particularly with respect to her bra and tops. She said she was a member of the Hawthorn Football cheer squad but has been unable to do this since she was not able to wave her pom poms. She is unable to lift her nieces and nephews.[123]
[123]Ex P1, pge 106
55 In summary, Mr Grossbard’s opinion, was:
“This lady has suffered a soft tissue injury to her left shoulder as a result of the motor accident described as occurring on the 14th January 2011. She has had the shoulder surgically treated and is left with some residual pain and loss of motion. I believe there may have been an additional element of capsulitis which has occurred, the degree of resolution of which is unclear.”[124]
[124]Ex P1, pges 106-107
56 Mr Doig diagnosed the plaintiff as suffering from traumatic subacromial bursitis in her left shoulder.[125] He reported that the plaintiff “finds it hard to do heavy housework such as washing, floors, vacuuming or making the bed.”[126] In the context of the plaintiff’s interest in supporting the Hawthorn Football Club he noted “she cannot do the overhead activities and finds difficulty in making the banners and the run throughs.”[127]
[125]Ex P1, pge 109
[126]Ex P1, pge 109
[127]Ex P1, pge 109
Defendant’s medico-legal evidence
57 The plaintiff was examined by Mr Michael Dooley for the defendant. Mr Dooley’s report is dated 8 May 2015.[128] Mr Dooley diagnosed the plaintiff as suffering from:
[128]Ex P1, pge 111-118
(a) a possible soft tissue injury to the cervical spine; and
(b) a possible soft tissue injury to the left shoulder region.[129]
In his opinion the mechanism of the motor vehicle accident would be consistent with sustaining a soft tissue injury to either body part.[130]
[129]Ex P1, pge 114
[130]Ex P1, pge 114
58 Mr Dooley reported that the plaintiff described “difficulty with heavy physical activity and with lying on her left side.” He noted that she described having “become depressed” and that “she has had difficulties in her personal life”. He said that he would expect the plaintiff to “note some ongoing intermittent left shoulder girdle pain”,[131] that he would expect her to “note difficulty with regular heavy physical activity and with a lot of activity at and above shoulder level.”[132] He did not believe that the plaintiff could “engage in ten pin bowling etc”.[133] He would have expected her to be “able to carry out knitting, cross stitching etc at lap or desk level,” noting that “it is mainly heavy physical activity and duties that involved a lot of activity at and above shoulder level that could cause difficulties.”[134]
[131]Ex P1, pge 115
[132]Ex P1, pge 115
[133]Ex P1, pge 116
[134]Ex P1, pge 116
Is the compensable injury long-term for the purposes of the Act?
59 Having considered the evidence of Associate Professor Goldwasser,[135] Mr Stapelton,[136] Mr Grossbard,[137] Mr Doig,[138] Mr Dooley[139] and Mr Alcock[140], I find that the plaintiff is likely to continue to suffer from left shoulder related pain and disability for the foreseeable future.
[135]Ex P1, pge 36
[136]Ex P1, pge 103
[137]Ex P1, pge 107
[138]Ex P1, pge 110
[139]Ex P1, pge 116
[140]Ex P1, pge 78
60 Thus, I find that the injury sustained by the plaintiff in the transport accident, amounts to a long-term impairment for the purposes of the Act.
The task of disentangling
61 As set out above, the medical records disclose significant pre and post-accident psychiatric histories. For that reason, it was submitted by the defendant that most of the consequences upon which the plaintiff relied, could not be attributed to the transport accident. Thus, it was submitted that there was a need to “disentangle” the consequences of the psychiatric conditions from which the plaintiff presently suffers, from the physical consequences if any, of the injury to her left shoulder suffered in the transport accident.[141]
[141]Peak Engineering& Anor v McKenzie [2014] VSCA 67 at [24]
62 The plaintiff bears the burden of proof in any disentangling exercise which needs to be undertaken.
63 It is admitted that there is a substantial organic basis for the physical consequences of the plaintiff’s injury to her left shoulder. Thus, subject to assessing the degree of impairment by reference to the consequences of that injury to the plaintiff, no further disentangling needs to be undertaken.[142]
[142]Meadows v Lichmore Pty Ltd [2013] VSCA 201 at [21], [24]
Comparison of the plaintiff’s pre and post accident presentation
64 A comparison must also be made of the plaintiff’s overall pre-accident presentation with the post-accident presentation as it relates to the transport accident, in order to determine whether the consequences of the injury suffered in the transport accident satisfy the test set out in the Act.[143]
[143] Petkovski v Galletti (supra) at 444
65 The evidence given by the plaintiff and in the material tendered in court, is sufficiently detailed to allow me to form a view as to which consequences are properly attributable to the injury suffered in the transport accident and which are more properly attributable to plaintiff’s other medical ailments.
66 I set out below the findings about which consequences are properly attributable to the transport accident. I reject the assertion by the plaintiff that the balance of the consequences to which she has deposed, are related to the transport accident. In particular, I find that the plaintiff’s serious psychological disturbances which manifest themselves inter alia, as anxiety and depression, loss of concentration and suicidality, are in no way related to the transport accident. Similarly, I reject the assertion that the plaintiff’s second marriage was adversely affected by reason of the accident. Instead, I find that the difficulties in the plaintiff’s second marriage were entirely to do with factors separate to the accident, including the serious allegations of sexual misconduct which her husband was facing and the violence which the plaintiff experienced in the course of that marriage.
Conclusions as to the pain and suffering consequences of the transport accident
Pain
67 I find that the left shoulder pain from which the plaintiff suffers is a direct result of the accident and was initially of sufficient intensity to warrant the plaintiff’s treating doctors recommending that she undergo a surgical procedure, which she did in January 2013. I accept the plaintiff’s evidence that while the surgery improved the range of movement in her left shoulder, she still experiences stiffness and constant pain of varying intensity in her left shoulder, which radiates to her neck and down her arm. I find that by reason of the pain referred to her neck, she has difficulty sitting for prolonged periods of time.
68 The plaintiff frankly acknowledged in her second affidavit that her pain has recently increased as a result of the stress to which she has recently been subject. However, I find that even prior to her marital difficulties, as a result of the accident, the plaintiff experienced sharp stabbing pain in the region of her left shoulder at least once per day and that the pain could build up to the point where her shoulder throbbed. I accept her evidence that she usually gets through to about 2pm at work before starting to struggle with pain and that she is not able to do much when she gets home due to worsening pain in her left shoulder.
69 I find that by reason of its daily occurrence and intensity, the left shoulder pain from which the plaintiff now suffers is a new and very considerable consequence of the accident.
70 I further find that the plaintiff has a 7cm scar from the shoulder surgery, which constitutes an area of tenderness on her shoulder which she must work around. I accept that for this reason she avoids carrying a handbag on her left shoulder, and prefers to use a backpack which she can carry on her right shoulder.
Medication and treatment
71 I find that as a result of the injuries she suffered in the accident, until recently the plaintiff took painkilling medication several times per week and that those painkillers helped her to get through the week. I find that although the plaintiff has decided to cease taking painkilling medication, this decision was made by reason of her fear that she would become dependent upon that medication, rather than because she no longer needs to have her pain treated.
72 I accept the plaintiff’s evidence that she presently uses heat and cold packs on average every second day to assist her to manage the pain which resulted from the accident.
Sleep interruption
73 I find that the plaintiff is woken most nights by pain in her left shoulder and that as a result, she sometimes gets up and turns on music or the television, and in the past has taken a painkilling tablet. I find however, that the plaintiff’s sleep had been interrupted for many years prior to the accident, and that as a result, the interruption of sleep which the plaintiff experiences as a result of the accident, is not a new consequence for her.
Effect on social life and activities of daily living
74 I accept that as a result of the accident the plaintiff:
(a) cannot look after her elderly mother as much as she would like to and feels guilty about this;[144]
[144]Ex P1, pge 21, paragraph 30
(b) has great difficulty reaching above shoulder height, has reduced grip strength and avoids lifting anything heavy with her left arm;
(c) is able to do her own washing but cannot hang it on the line outside. She does dusting and basic tidying. However, she has a limited ability to perform heavy housework and gardening, and obtains assistance with these activities from her ex-husband’s family;
(d) has difficulty cooking;
(e) is able to do the grocery shopping but has to be careful not to carry heavy shopping bags with her left arm;
(f) is unable to walk her dog, as she is unable to hold the lead with two hands;
(g) can now manage to get her bra on but still avoids jumpers, clothes with buttons or anything else that has to be done up;
(h) is unable to go ten pin bowling, and is no longer able to swim. Both of these sports were activities which the plaintiff used to enjoy prior to the accident;
(i) is able to attend most football matches in which Hawthorn Football Club are playing (including some interstate matches), however she is unable to cheer with the small pompoms as she used to do. She still sits with the Hawthorn cheer squad and barracks without waving things around. I accept that she experiences a deep sense of disappointment at being unable to fully participate in the cheering;
(j) is no longer able to do embroidery or needlework, including cross stitch. This is an activity from which she derived great pleasure before the accident;
(k) experiences intrusive thoughts of the accident and is now a nervous passenger in cars and avoids travelling in taxis. However, I note that despite these consequences, she continues to travel in cars when offered a lift to work or home from the football and that to this extent, the psychological consequences of the transport accident are minor;
(l) cannot interact with her young nephews as she would like, as she is unable to pick them up;
(m) must avoid carrying a bag on her left shoulder or knocking the scar on her left shoulder, to avoid having pain in that area.
Work restrictions
75 The plaintiff has continued to perform her work as a credit consultant, albeit with some difficulty, since the accident. I accept that by reason of her left arm symptoms, she has taken sick days while in her new job and that she would have taken more if there were enough employees to cover for her while she was away.
76 I accept that as a result of the injuries she sustained in the accident, she is restricted to lifting weights of no more than 5kg,[145] that she has difficulty with pushing and pulling items[146] and that she is unable to carry out any overhead activities.[147]
[145]Ex P1, pge 78 (as per report of Mr Mark Alcock, physiotherapist)
[146]Ex P1, pge 99 (as per report of Mr Murray Stapleton, plastic and hand surgeon)
[147]Ex P1, pge 109 (as per report of Mr Stephen Doig, orthopaedic surgeon)
77 I accept that these restrictions will affect her prospects of obtaining employment in another field in the future, should that become necessary. However, I find that the work restrictions she faces do not presently interfere with the type of work she currently performs.
Richards v Wylie
78 I am also entitled to and do take into account the expected mental consequences which the plaintiff suffers as a response to a physical impairment resulting from the accident.[148]
[148]Richards v Wylie (2000) 1 VR 79 at 88, Winneke P held that s93(17)(a) of Transport Accident Act 1986 “can, I think, have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function.”
79 I find that while non-accident related psychiatric factors remain a significant feature of the plaintiff’s current presentation, the expected mental consequences which the plaintiff suffers as a response to a physical impairment resulting from the accident, play a small part in her overall presentation.
Is the plaintiff’s left shoulder injury a serious injury for the purposes of the Act?
80 In Haden Engineering Pty Ltd v McKinnon,[149] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of an injury. In particular, Maxwell, P observed that the consequences of pain and suffering encompass both the plaintiff’s experience of pain, as well as the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[150] Part of the process is for the Court to assess the intensity of pain which the plaintiff experiences, together with the frequency and duration of pain episodes. Ultimately, the question of whether an injury satisfies the narrative test is one of impression or value judgment.[151]
[149](2010) 31 VR 1
[150]ibid at [9]
[151]Woolworths Ltd v Warfe[2013] VSCA 22 at [129]
81 The weight to be attached to the plaintiff’s account of the pain experience will depend upon an assessment of the plaintiff’s credibility.[152] As noted above, I concluded that it was important in this case to undertake a careful assessment of the veracity of the plaintiff’s evidence by reference to the content of the medical records.
[152]Haden Engineering Pty Ltd v McKinnon at [12]
82 In Haden, Maxwell P also observed that the cases recognise that some plaintiffs may be more “stoical” than others. His Honour said that the stoical plaintiff is not to be viewed as any less serious, merely because he/she manages to remain more active than might be expected given the level of pain.[153]
[153]ibid at [13]
83 I have already made observations about the plaintiff's demeanour and presentation in Court. I have concluded that the plaintiff is somewhat stoic in her approach to managing the consequences of her injuries.
84 Having undertaken this task, I formed the view that in relation to the pain and suffering consequences which I have found arose as a result of the injury suffered in the transport accident, the plaintiff was a witness of truth. Thus, I accept her evidence as to the frequency and severity of those consequences which are set out above.
85 An analysis of the evidence demonstrates that many aspects of the plaintiff’s life have been adversely affected by the consequences of the injury that she suffered as a result of the transport accident. The plaintiff endures constant stiffness and pain which is significantly in excess of anything she suffered prior to the transport accident. I find that until recently, by reason of her pain, the plaintiff took over the counter medication on a daily basis, but that she has stopped this, as she does not wish to become dependent upon the medication. I accept that but for this decision, the plaintiff would still be taking medication on a daily basis.
86 I accept that the pain from which the plaintiff suffers has materially inhibited her daily activities domestically and recreationally. It has adversely affected the plaintiff’s enjoyment of social activities, particularly her ability to barrack fully for the Hawthorn Football Club, a very considerable consequence for this particular plaintiff. This pain has also impacted on her ability to perform the usual activities of daily living as referred to above.[154]
[154]see Halpin v Wilson Transformer Company Pty Ltd [2012] VSCA 235 for an example of a similar plaintiff granted leave to bring proceedings after a successful appeal, where the Court of Appeal (Nettle and Osborn JJA) considered that suffering constant and continuing pain since injury, alongside limitations upon enjoyment of life, to be important considerations in the decision to grant leave.
87 The plaintiff’s age and therefore, the likely period for which she will experience the consequences of her injury, are relevant to my task of judging the pain and suffering consequences to this plaintiff, by comparison with other cases.[155] The fact that the plaintiff has been able to remain in full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account, when assessing all of the evidence.[156]
[155]Haden Engineering Pty Ltd v McKinnon at [17]
[156]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at [47]
88 I am satisfied that the pain and suffering consequences set out above are a direct result of the injury suffered to the plaintiff’s left shoulder in the transport accident, and that except where otherwise noted, these consequences are new. Taking into account all of the evidence, I am satisfied that these consequences of the plaintiff’s left shoulder injury are, when judged by comparison with other cases in the range of possible impairments, fairly described as at least “very considerable” and more than “significant” or “marked”. I make this finding having given careful consideration to the consequences of the many other ailments from which the plaintiff suffered in the past and from which she presently continues to suffer.
Conclusion
89 Accordingly, pursuant to s.93(4)(d) of the Act, I grant leave to the plaintiff to bring common law proceedings in respect of the injury to her left shoulder suffered on or about 14 January 2011.
90 I will hear the parties on the issue of costs.
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