Zekirija v Transport Accident Commission
[2017] VCC 848
•27 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CI-16-03409
| KIMET ZEKIRIJA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 and 31 May 2017 | |
DATE OF JUDGMENT: | 27 June 2017 | |
CASE MAY BE CITED AS: | Zekirija v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 848 | |
REASONS FOR JUDGMENT
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Subject TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to the right shoulder injury – pre-existing right shoulder condition – aggravation
Legislation Cited: Transport Accident Act 1986
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; RJ Gilbertson v Skorsis [2000] VSCA 51; Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26
Judgment: Application successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr A Newman | Maurice Blackburn |
| For the Defendant | Mr G Lewis QC with Ms A Wood | Transport Accident Commission |
HER HONOUR:
Preliminary
1 Mrs Zekirija is a 59 year old lady who was injured in a transport accident on 24 July 2013, when she was struck by a truck whilst walking across Dalgety Street in Dandenong South. Mrs Zekirija claims that as a consequence of this accident she has suffered a serious injury to her right shoulder.
2 In order for Mrs Zekirija to be entitled to claim common law damages, the impairment of her right shoulder must satisfy paragraph (a) of the definition of “serious injury” contained in s93(17) of the Transport Accident Act 1986.
3 Prior to the transport accident, Mrs Zekirija had suffered some pre-existing right shoulder problems. The Transport Accident Commission (“the TAC”) accepts that the accident caused an aggravation of that pre-existing condition, but disputes that the consequences which arise from that aggravation can be described as at least very considerable.
4 Only Mrs Zekirija was called to give evidence and she was cross-examined, with the assistance of an interpreter. Also in evidence were medical reports and other material, including affidavits from two of her children. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
5 For the reasons which follow, I am satisfied that the consequences from the aggravation to her pre-existing right shoulder can be described as at least very considerable.
Relevant background
6 Mrs Zekirija was born in Macedonia in December 1957. She attended only four years of school, and was otherwise raised by her family in a small village.
7 In 1982, Mrs Zekirija migrated to Australia. She is married and has three adult children, and eight grandchildren. Mrs Zekirija and her husband live with one of her sons, his wife and their four children.
8 After migrating to Australia, Mrs Zekirija was initially employed as a process worker in a chicken factory. She then worked full-time as a farm hand, bunching flowers for a family owned flower farm. She ceased such work in 2009, when the business closed down.
9 In about June 2000, Mrs Zekirija was treated by her then general practitioner, Dr Baldwin, for a brief bout of depression due to family related issues.
10 In or about 2003, Mrs Zekirija first experienced some right shoulder and neck pain.
11 On 19 March 2003, Mrs Zekirija underwent an x-ray of her cervical spine and an ultrasound of her right shoulder. The x-ray reported degenerative change in the cervical spine and the ultrasound reported a normal right shoulder with no tears or evidence of an adhesive capsulitis.
12 On 2 October 2007, Mrs Zekirija underwent a further ultrasound as well as an x-ray of her right shoulder. The ultrasound reported a small intrasubstance tear involving the supraspinatus tendon, measuring 3.8 x 3.1mm. The x-ray reported no fracture or dislocation, no evidence of soft tissue calcification and detected no other bone or joint lesion.
13 On 23 October 2009, Mrs Zekirija consulted Dr Mark Patrick with a history of back pain, radiating into her right leg. Dr Patrick also noted that she had shoulder symptoms suggestive of rotator cuff tendinopathy.
14 On three occasions from June 2010 until November 2010, Mrs Zekirija consulted general practitioners at the Langton Medical Centre regarding right shoulder pain.
15 In addition to these pre-existing right shoulder problems, Mrs Zekirija also suffered from several co-morbidities unrelated to this claim, including left and right Carpal Tunnel Syndrome, bouts of back pain, chest pain and dizziness at times.
The accident and its consequences to Mrs Zekirija
16 The transport accident occurred on 24 July 2013. At that time, Mrs Zekirija was crossing Dalgety Street in Dandenong South, having just visited her father-in-law when she was struck by a truck. Soon after she was assisted by a family member who drove her home. Mrs Zekirija said that she felt pain in her right shoulder and neck after the transport accident.
17 In cross-examination, Mrs Zekirija said that she told her family about the accident when she got home. In her affidavit, however, she said she did not do so until the following day. Her daughter also indicated in her affidavit that she was unaware of the accident until her mother sought medical assistance the following day. Mrs Zekirija’s son said that his mother was very quiet when she came home and that she rested on the couch. He said that she eventually told him about the accident, but his affidavit does not detail whether it was on the night of the accident or the following day.
18 The following day, Mrs Zekirija said that she had increasing pain in her right shoulder and neck, and that she was taken by her daughter to Dandenong Hospital’s Emergency Department. She underwent a CT scan to her brain and cervical spine and x-rays to her right shoulder, pelvis, frontal (PA/AP), left shoulder and right humerus. The results of both the CT scan and the x-rays were normal. She was given paracetamol and ibuprofen and discharged home that day.
19 On 31 July 2013, Mrs Zekirija consulted her general practitioner, Dr Liang, with her son. Dr Liang noted that she was “still sore everywhere, scared and not sleeping well”. Mrs Zekirija was prescribed Panadeine Forte.
20 From July 2013 to October 2013, Dr Liang continued to prescribe pain medication for Mrs Zekirija, and, in August 2013, he also commenced prescribing Endep.
21 In October 2013, Dr Liang referred Mrs Zekirija for physiotherapy and also to a rheumatologist, Dr Mark Patrick, as her neck and right shoulder pain continued to persist. Dr Liang also commenced prescribing Avanza, as Mrs Zekirija felt stressed and was only sleeping three hours a night.
22 On 30 October 2013, Mrs Zekirija consulted Mr Gerald Lee for physiotherapy treatment, with complaints of “severe pain over her right sided neck, right upper trapezius and right medial scapular region”. In his report dated 31 January 2017, Mr Lee noted that physiotherapy was given in the form of manual and electrotherapies, graded neck exercises, and self-home management techniques.
23 On 11 November 2013, Mrs Zekirija again consulted Dr Patrick with complaints of neck and right shoulder pain. In his report dated 15 November 2013, Dr Patrick noted that her most significant complaint was of neck and right shoulder irritability and movement pain. Dr Patrick referred Ms Zekirija for a nuclear bone scan and ultrasound. He also prescribed a two week course of Prednisolone.
24 On 29 November 2013, Mrs Zekirija underwent a nuclear bone scan of her right shoulder, which demonstrated “low grade uptake in the right acromion more likely reflects some rotator cuff arthropathic change”.
25 On 3 December 2013, Mrs Zekirija underwent a further ultrasound of her right shoulder. It reported a full thickness tear of supraspinatus with 7mm of retraction.
26 On 3 January 2014, Dr Patrick referred Mrs Zekirija to orthopaedic surgeon, Mr Ton Tran, as he considered she may require surgical management.
27 On 4 February 2014, Mrs Zeririja consulted Mr Tran. In his report dated 6 February 2014, Mr Tran noted that he “was very concerned of her current status” but wanted to delay any surgical intervention until he had fully assessed her overall medical pain management. He subsequently referred Mrs Zekirija for a steroid injection.
28 On 11 March 2014, Mrs Zekirija underwent an ultrasound guided injection, at which point a total of 2mls of 1% lignocaine and 1ml of celestone was injected into her right shoulder.
29 On 8 April 2014, Mrs Zekirija was reviewed by Mr Tran. In his report dated 9 April 2014, Mr Tran noted that Mrs Zekirija had obtained relief from the steroid injection for about two days. He encouraged her to continue with self-directed pool exercises to increase movement in her shoulder.
30 On 24 May 2014, an ultrasound was taken of Mrs Zekirija’s right shoulder. It reported a full-thickness tear of the anterior supraspinatus tendon with a tendon retraction.
31 On 4 June 2014, Mrs Zekirija was reviewed by Mr Tran. In his report dated 4 June 2014, Mr Tran noted that Mrs Zekirija was not happy with the progress of her right shoulder, but that she was also not keen to undergo surgery.It was ultimately decided that Mrs Zekirija would inform Mr Tran if she wished to proceed with surgery in the future.
32 On 4 October 2016, Mrs Zekirija again consulted Mr Tran. In his report dated 3 November 2016, Mr Tran noted that “as far as her rotator cuff tear is concerned, whether it was caused by the incident as noted remains in dispute, especially given her background of upper limb manual work as a farm hand”. He recommended conservative treatment involving pain management and counselling, with no operative intervention, as he was very doubtful that surgical intervention would offer any further clinical benefits to her right shoulder.
33 On 16 May 2017, Mrs Zekirija underwent a further ultrasound of her right shoulder. It demonstrated a complete full-thickness tear of the right supraspinatus with apparent retraction.
34 Mrs Zekirija continues to consult Dr Liang approximately once a month, at which time he provides her with prescriptions. Mrs Zekirija said that she takes Lyrica, Mobic and Panadol Osteo, two tablets, three times a day, as well as Aropax for her depression and anxiety.
35 Mrs Zekirija has continued to receive physiotherapy treatment with Mr Lee, and also now attends the hydrotherapy pool where she performs exercises.
36 Mrs Zekirija’s daughter, Zanime, stated that her mother was much more active before the transport accident than she is now. She said that Mrs Zekirija would take care of her grandchildren, and that she did most of the cooking, cleaning and laundry for the whole family. They would also attend Albanian functions together. Since the accident, however, Zanime said that her mother does not cook as much as before, and that she no longer makes Albanian pastry. Zanime now helps to clean her mother’s house, and said that her mother does not look after her grandchildren as often as she did. They also attend Albanian events less often.
37 Mrs Zekirija’s son, Festim, with whom she lives, said that his mother was very active with his children before the transport accident, and that she would play with and take care of them. He also said that Mrs Zekirija did most of the cooking at home. Since the accident, Festim said that his mother does not look after his children nor cook as much as she did. He said that his wife now does most of the cleaning and laundry.
Medico-legal evidence
38 Mrs Zekirija’s solicitors arranged for Mrs Zekirija to be examined by orthopaedic surgeon, Mr Rodney Simm, in September 2015. In his report dated 1 September 2015, Mr Simm stated that Mrs Zekirija had denied suffering from any past neck or right shoulder symptoms. In cross-examination, Mrs Zekirija said that she could not recall her discussions with Mr Simm.
39 Mr Simm noted that the medical records of Mrs Zekirija’s general practitioner detailed her past history of neck or right shoulder symptoms. Mr Simm was of the opinion that as a consequence of the transport accident, Mrs Zekirija had sustained a soft tissue injury to the right shoulder, and that investigations had revealed a full thickness rotator cuff tear, which was almost certainly pre-existing. Mr Simm considered that the rotator cuff tear, seen on the ultrasound after the accident, was probably longstanding considering her past history of shoulder pain, and the investigations it required in 2003 and 2007. Notwithstanding this opinion, however, Mr Simm considered that the transport accident may have resulted in some further extension of the degenerative rotator cuff tear, which may in turn have resulted in some acceleration of the progressive degenerative changes in her rotator cuff.
40 Mrs Zekirija’s solicitors also arranged for Mrs Zekirija to be examined by orthopaedic surgeon, Mr Garry Grossbard, in February 2017. In his report dated 20 February 2017, Mr Grossbard noted that Mrs Zekirija told him she had fully recovered from her previous neck and right shoulder issues in 2003 and 2007. He diagnosed Mrs Zekirija as suffering a soft tissue injury to her right shoulder and cervical spine. Mr Grossbard considered that there was no way of determining when the rotator cuff tear actually occurred, but thought it was possible the level of the rotator cuff tear had extended following the transport accident. In any event, Mr Grossbard noted that the transport accident had been responsible for the resurgence of symptoms in both Mrs Zekirija’s neck and right shoulder.
41 The TAC arranged for Mrs Zekirija to be examined by orthopaedic surgeon, Mr Peter Boys, in March 2017. In his first report dated 3 April 2017, Mr Boys noted that Mrs Zekirija had not made specific complaints in relation to her right shoulder. He diagnosed Mrs Zekirija as suffering a chronic full thickness tear of the right supraspinatus tendon and secondary capsulitis of the right shoulder. He was of the opinion that the symptoms could be attributed solely to the effect of the motor vehicle accident, in circumstances where there was no past history of any specific shoulder complaint.
42 The TAC then sought a supplementary report from Mr Boys, which he provided on 3 May 2017, after reviewing Mrs Zekirija’s past medical records. Mr Boys noted that Mrs Zekirija was experiencing symptoms associated with tendinopathy of the right rotator cuff in the period subsequent to 2007, and that she had, in all probability, suffered a permanent aggravation of this condition due to the transport accident. He considered that Mrs Zekirija’s reported incapacities could be reasonably related to the transport accident.
43 The TAC also arranged for Mrs Zekirija to be examined by psychiatrist, Dr Andrew Firestone, in March 2017. In his report dated 20 March 2017, Mr Firestone noted that Mrs Zekirija had previously been in “excellent health”, which she denied having said to him. Dr Firestone diagnosed Mrs Zekirija as suffering an adjustment disorder to her continuing pain, with depressive and agoraphobic features.
Mrs Zekirija’s reliability
44 The TAC submitted that Mrs Zekirija was an unreliable witness and that her veracity was open to serious question. In support of this contention, Mr Lewis referred me to the following aspects of Mrs Zekirija’s evidence to demonstrate her unreliability.
(i) The plaintiff had suffered prior neck and right shoulder symptoms, and had undergone numerous radiological investigations, but failed to inform the medico-legal doctors of this past history. When Mrs Zekirija was asked about the history provided to Mr Simm, Mr Grossbard, Mr Boyce and Dr Firestone, she said either that she could not recall what she had told them, or she denied telling them that she had no prior right shoulder problems.
For example, Mrs Zekirija could not recall what she told Mr Simm and Mr Boyce. She denied telling Dr Grossbard that she had fully recovered from injuries to her shoulder and neck by the time of the accident, and she denied telling Dr Firestone that she had been in excellent health prior to the accident.
I accept the TAC’s submission as to the improbability of all four doctors recording an incorrect history, and I accept that, in such circumstances, it is more likely that Mrs Zekirija informed each doctor that she had not suffered any prior right shoulder problems.
Mr Harrison submitted that Mrs Zekirija was an uneducated and simple woman who does not speak any English, and whose evidence should be treated accordingly through such a prism, notwithstanding she provided her past history through a professional interpreter.
I accept that Mr Harrison’s description of Mrs Zekirija is appropriate. I considered her to be a simple and unsophisticated lady. I am satisfied that she would have had difficulties understanding questions and communicating with doctors, even with the assistance of an interpreter. In such circumstances, I am not satisfied that her failure to inform the doctors of her past right shoulder pain was a deliberate omission.
(ii) Mrs Zekirija stated in her first affidavit, and also told several doctors, that she did not tell her family of the transport accident until the following day. This account was supported by Zanime’s affidavit and in the records of the Dandenong Hospital Emergency Department. However, in cross-examination, Mrs Zekirija insisted that she had told her family about the accident when she got home, before going to lie down on the couch.
In my opinion, nothing of substance turns on the exact date Mrs Zekirija told her family about the transport accident. I consider this ambiguity to demonstrate the difficulties Mrs Zekirija faced when communicating with both doctors and also the solicitor or counsel who prepared her affidavits.
(iii) In her first affidavit, Mrs Zekirija referred to suffering wrist problems “many years ago”. However, in cross-examination, Mrs Zekirija conceded that her wrists were a problem at the time of the transport accident. The TAC considered this to further demonstrate Mrs Zekirija’s unreliability.
In response, however, Mr Harrison noted that in her second affidavit, Mrs Zekirija detailed problems with her left wrist in December 2012, and noted that she subsequently underwent an ultrasound, received a course of steroids and used a wrist brace. I accept that such detail is inconsistent with an assertion that Mrs Zekirija had tried to mislead the court in respect of her past history.
(iv) Mrs Zekirija was cross-examined regarding her presence and involvement at her family’s flower business at the Preston Market. She said that she goes there once or twice a month to get out of the house. She denied telling Dr Firestone that she makes up bundles of flowers at the market, and said that she simply sits on a chair or sometimes goes for a walk. However, she later said that she would sometimes wrap up small bundles of flowers, whilst maintaining that she has never done bunches of flowers.
In re-examination, Mrs Zekirija explained that it is easier to wrap a bunch of flowers, than to make a bunch of flowers, as the flowers are already bundled.
I accept this evidence, and again consider it to demonstrate the difficulties Mrs Zekirija faces when communicating, notwithstanding the assistance of professional interpreters at medical appointments and in court. The task of making up a bunch of flowers involves holding unsecured flowers and bundling them together. I consider such a task would likely involve some strain on the arms and shoulders. In contrast, I consider wrapping paper around a secure bunch of flowers would be a relatively simple and easy task to perform at table level, and one which would place minimal, if any, strain on the shoulders. I do not therefore consider Mrs Zekirija’s evidence in relation to the wrapping of flowers to demonstrate any unreliability.
(v) Finally, whilst not directly raised by Mr Lewis in closing submissions, I consider it may be possible to construe the evidence Mrs Zekirija provided in relation to caring for her grandchild, as further demonstrating her unreliability. On 6 August 2014, her general practitioner, Dr Liang, noted that Mrs Zekirija attended with her pre-school aged grand-daughter, whom she “looks after her during the day.” Mrs Zekirija denied caring for her grand-daughter, and said that her daughter-in-law does not work and that her grand-daughter attends childcare. I am satisfied that, consistent with Mrs Zekirija’s affidavit, she does at times assist in the care of her grandchildren, but not to the extent she did prior to the transport accident. I do not therefore consider her evidence on this matter to be of significance.
45 In view of the above, I do not consider the evidence to demonstrate a lack of veracity or lack of credibility in respect of Mrs Zekirija. I do, however, acknowledge that on many occasions during her evidence she answered either “I don’t know” or “I just can’t recall”. I did not consider these answers demonstrated a lack of co-operation, but rather, reflected who she was - a simple woman, with little education who relied entirely on the interpreter for the giving of her evidence. In such circumstances, I accept that Mrs Zekirija was a genuine witness, who has had difficulties providing an accurate history in respect of her past medical condition.
Aggravation
46 For Mrs Zekirija to succeed in her claim, she must satisfy me that she suffered an aggravation of the pre-existing right shoulder injury in the transport accident. It is necessary for me to compare Mrs Zekirija’s pre-existing condition prior to the accident, with the aggravated state, and to consider only the consequences arising from the aggravation, in accordance with the principles enunciated in Petkovski v Galletti.[1]
[1][1994] 1 VR 436
47 Chernov JA, in R J Gilbertson v Skorsis,[2] summarised the task before me:
“In determining whether an injury which is an aggravation of a pre-existing injury is a ‘serious injury’, it is necessary first to make a comparison between the applicant’s condition before the accident that gave rise to the second injury and to his or her condition after that incident and thereby ascertain the degree of additional impairment that has been brought about by the second injury. It is then necessary to make an assessment of whether the additional impairment is serious and long term.”[3]
[2][2000] VSCA 51
[3]Ibid at [40]
48 I am satisfied that Mrs Zekirija had a small tear in her right shoulder prior to the transport accident for which she took pain medication from time to time. I am satisfied that she had once previously been prescribed with anti-depressant medication. I am also satisfied that in the two and half years prior to the transport accident, she made no complaint of right shoulder pain to her general practitioner.
49 I accept that Mrs Zekirija was a grandmother who was actively involved in caring for her extended family prior to the transport accident. Despite having some other health issues, such as occasional lower back pain, and episodic shoulder pain, I accept that she provided assistance in the care of her grandchildren and that she did most of the cooking, cleaning and laundry for her family. I accept that such activities provided her with satisfaction and that she was a happy and proud grandmother, who enjoyed providing for her grandchildren.
50 I am satisfied that prior to the transport accident, Mrs Zekirija’s pre-existing right shoulder condition did not cause her any ongoing consequences and that it did not interfere with her ability to be an active mother and grandmother. Therefore, in assessing Mrs Zekirija’s claim, I am able to consider all the consequences arising from the aggravation of her pre-existing right shoulder injury.
Are the consequences of the aggravation serious?
51 Having considered her evidence, and that of her daughter and son, as well as the medical evidence, I am satisfied that as a consequence of the aggravation of her pre-existing right shoulder condition, Mrs Zekirija suffers the following consequences:
· She now takes painkilling medication on a daily basis, whereas in the past she took it only occasionally. Such medication is also now stronger, and includes Lyrica, Mobic and Panadol Osteo. I accept that she has trialled several courses of the steroid, Prednisolone, and has received a Cortisone injection into her shoulder. I also accept that she uses heat packs on a daily basis.
As has been recognised by the Court of Appeal in previous cases:
“The endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a very considerable consequence.”[4]
[4]Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267 at 199. See also ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31
· Her pain persists despite having received physiotherapy and hydrotherapy treatment.
· Her pain is aggravated by activities which involve the use of her right arm and, in particular, heavy lifting with her right arm or pushing or pulling movements involving her right arm.
· She is restricted in her performance of domestic duties and her daughter-in-law does many of the heavier tasks around the house, including window cleaning, dusting and vacuuming. She is limited in the cooking which she can now undertake. She can no longer make Albanian pastry, as rolling the dough causes an increase in her right shoulder pain.
· She can now only do some laundry, as pegging items on the washing line aggravates her shoulder pain.
· She is no longer able to dig in the garden or carry a wheelbarrow.
· Her sleep is disrupted by her right shoulder pain and, if she rolls onto her right side, she will often wake as a result of such pain.
· She is also anxious and depressed because of the persistent pain and the impact it has had on her ability to engage with her grandchildren.
52 Mrs Zekirija suffered her injury at age 55 and is now 59 years of age. As was noted by the Court of Appeal in Hawkins v DHL Express (Australia) Pty Ltd:[5]
“Ultimately, the employer appeared to accept that the judge’s reasoning with respect to the worker’s advanced age was at odds with what ought to have been at the heart of her assessment, namely the pain and suffering consequences of his impairment. Her Honour ought not to have treated the worker’s advanced age as in itself supportive of the proposition that his injury was less than serious. This is so because it will depend on the circumstances of each individual case as to whether the age of a worker, and the ailments associated with age, exacerbate the impairment consequences experienced. I do not consider that the remarks made in Stijepic in a case concerning a young adult can be extrapolated to mean that the impairment consequences suffered by a worker of advanced age are, by reason of the worker’s age, likely to be less than serious. Nor should the remarks be read as supporting the existence of a presumption in this regard.”[6]
[5][2013] VSCA 26
[6]Ibid at [78]
53 I accept that, notwithstanding her pre-existing lower back pain and occasional right shoulder problems, Mrs Zekirija was a relatively active woman prior to the transport accident. Her ability to enjoy her life as a mother and grandmother has been significantly curtailed as a consequence of her right shoulder injury.
54 I consider the pain and suffering consequences to Mrs Zekirija, as detailed above, when looked at for a 59 year old woman, and when compared to other cases in the range of possible impairments or losses, are at least very considerable.
Conclusion
55 Mrs Zekirija has satisfied me that she suffers a serious injury as a consequence of the aggravation to her right shoulder injury and I therefore grant her leave to commence her common law claim for damages.
56 I shall make the consequent orders.
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