Zissis v Transport Accident Commission
[2021] VCC 1700
•3 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-05666
| HELEN ZISSIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 October 2021 | |
DATE OF JUDGMENT: | 3 November 2021 | |
CASE MAY BE CITED AS: | Zissis v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1700 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury - right shoulder pain – causation - pre-existing neck and back pain - aggravation.
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Philippiadis v Transport Accident Commission [2016] VSCA 1
Judgment: Leave is granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Clements QC with Mr J Angenent | Slater and Gordon Ltd |
| For the Defendant | Mr W Middleton QC with Ms J Clark | Solicitor to the Transport Accident Commission |
HER HONOUR:
1Helen Zissis is a 69-year-old pensioner. She emigrated to Australia from Greece in 1971. Until 1 July 2017, she occupied herself with cooking traditional Greek food for herself and her family and friends; tending to the vegetables, roses and other plants in her garden; housework; and catching the bus to Epping Plaza for shopping.
2On 1 July 2017, Mrs Zissis was being driven to the Northern Hospital by her daughter to visit her sick husband. Mrs Zissis was sitting in the rear seat. As the car turned into the entrance to the hospital, it was struck on the left side by another vehicle, which was travelling at about 50 kilometres. Mrs Zissis was admitted to the hospital. She was discharged the following day.
3Mrs Zissis says that, as a result of this accident, she suffers serious persisting pain in her neck, back and right shoulder. She says that the pain gets worse with activity, particularly bending and twisting and right shoulder movements. She says she struggles with gardening and is restricted to light gardening tasks; she says her capacity to cook and clean has been seriously impacted and that she relies heavily on her adult son to perform these tasks. The constant pain, Mrs Zissis says, has made her withdrawn, teary and lacking in confidence, and she has trouble finding any enjoyment in life.
4Mrs Zissis claims to have suffered both an impairment to her spine and an impairment to her right shoulder, the consequences of which meet the requirements for a serious injury.
5The defendant submits that I should not be satisfied that the right shoulder impairment resulted from the accident. The defendant also submits that neither the impairment to Mrs Zissis’ right shoulder, nor the impairment to her neck and back, meet the requirements for a serious injury.
6The defendant relies particularly on Mrs Zissis’ long history of neck and back complaints as recorded in the clinical notes and reports of her general practitioner. In accordance with Petkovski v Galletti,[1] the Court must only take into account the extent to which Mrs Zissis’ condition has worsened since the accident. The defendant submits that, in light of her previous complaints, any worsening of Mrs Zissis’ condition that resulted from the accident was not serious.
[1][1994] 1 VR 436
7This proceeding raises the following issues:
(a) Was Mrs Zissis’ right shoulder impairment a result of the accident?;
(b) Was the right shoulder impairment serious?; and
(c) Is any aggravation of pre-existing degenerative changes in Mrs Zissis’ spine serious?
8For the following reasons, I have concluded that Mrs Zissis has suffered a serious injury with respect to both the body function of her right shoulder and of her spine.
Was the right shoulder injury caused by the accident?
Submissions
9Senior Counsel for Mrs Zissis submitted that I should accept the opinion of Mr Ash Chehata, an orthopaedic upper limb surgeon called by the plaintiff. Mr Chehata examined Mrs Zissis once and provided three reports. His opinion was that Mrs Zissis’ right shoulder symptoms were most likely related to a “massive rotator cuff tear, with decompensation of the shoulder joint in itself”.[2] He described two possible explanations for this cuff tear: First, that it was a degenerative rotator cuff tear; or second, that it was caused by trauma suffered in the accident. Although he noted some “odd” features in the case, he concluded that he “would accept the cuff deficient shoulder as a cause from the trauma”.[3]
[2]Plaintiff’s Court Book (“PCB”) 68
[3]PCB 69
10Senior Counsel for the defendant submitted that I should accept the opinion of Mr Gary Speck, a consultant orthopaedic surgeon called by the defendant. Mr Speck also examined Mrs Zissis once and provided three reports. Ultimately, Mr Speck concluded that while Mrs Zissis may have suffered a soft-tissue injury to her right shoulder in the accident, this would have been expected to resolve within three months from the transport accident.[4] He did not appear to accept either of Mr Chehata’s possible explanations of Mrs Zissis’ shoulder symptoms, noting that the function of the shoulder was recorded in the ultrasound as normal in range with no evidence of bursitis.[5] His conclusion in relation to Mrs Zissis’ current symptoms (presumably including her shoulder pain) was that they arose from “previous complaints of musculoskeletal pain and consistent with age, and chronic pain syndrome”[6].
[4] PCB 26, 28, 45.
[5] PCB 35
[6] Defendant’s Court Book (“DCB”) 26
11Mrs Zissis’ gave evidence that she experienced ongoing pain in her right shoulder from the time of the accident, or shortly after the accident.[7] Senior Counsel for the defendant accepted that Mrs Zissis was not being deliberately untruthful when she gave this evidence.[8] However, he submitted that she was “unreliable and can’t remember”[9]. He relied upon the lack of any record of Mrs Zissis reporting shoulder pain immediately after the accident; her failure to report right shoulder pain to her physiotherapist until January 2019; her failure to report right shoulder pain to her general practitioner until November 2018; and more generally upon her failure to recall her long history of neck and back pain when providing her history to three of the medico-legal experts; and her lack of memory of the details of her past history under cross-examination.
[7]Further affidavit of Helen Zissis dated 7 September 2021, paragraph [8]; Transcript (“T”) 42, Lines (“L”) 30-31
[8] T67, L26-28
[9] T67, L26-28
Consideration
12The general practitioner’s clinical notes do not refer to right shoulder pain until 19 November 2018. However, the clinical notes of Mrs Zissis’ physiotherapist record “stiffness and tension” in Mrs Zissis’ right shoulder and “sl pain” (which may be “slight pain”) in her initial consultation on 29 August 2017.[10] This was less than two months after the accident. There is also a reference to “tension” and “sl pain” in the right shoulder in the physiotherapist’s notes of 5 September 2017.[11] That said, there is no further reference to the right shoulder in the physiotherapist’s notes until at least 9 January 2019, when right “arm” pain is recorded.[12]
[10]PCB 164
[11]PCB 164
[12]PCB 160
13In some cases, the absence of a record of symptoms in clinical notes can be highly probative evidence.[13] But in the circumstances of this case, the lack of recorded symptoms does not significantly detract from the reliability of Mrs Zissis’ evidence. The majority of the notes of the general practitioner were very sparse, consisting of no more than one or two words and a list of prescriptions. They were clearly not an exhaustive record of every matter raised in each consultation. The physiotherapist’s notes are more detailed, but written in abbreviations which make them difficult to interpret. Mrs Zissis was largely communicating with her general practitioner and physiotherapist without the benefit of an interpreter. There are a number of references in the clinical notes of the physiotherapy clinic suggesting concerns about the lack of an interpreter.[14] Language difficulties may well have led to a disconnect between what Mrs Zissis intended to convey and what was recorded in the notes.
[13] Philippiadis v Transport Accident Commission [2016] VSCA 1 at paragraph [105]
[14] See, for example: 3 December 2018, PCB 161; 5 February 2019, PCB 159; 28 June 2019, PCB 154
14That the clinical notes cannot be relied upon as an exhaustive record of Mrs Zissis’ symptoms is confirmed by consideration of the surrounding evidence. Mrs Zissis is recorded as having reported right shoulder pain on 2 July 2018 in an assessment by medico-legal psychiatrist, Dr Nathan Serry. She informed another medico-legal specialist, Mr Russell Miller, of her right shoulder pain on 20 August 2018. Between July 2018 and January 2019 she visited her general practitioner and physiotherapist on several occasions. Despite this, it was not until 19 November 2018 that right shoulder pain is recorded in the general practitioner’s clinical notes and until at least 9 January 2019 that right shoulder pain is recorded in the physiotherapist’s notes. Indeed, Mrs Zissis’ general practitioner confirms, in his second report dated 1 April 2019, that Mrs Zissis was a very agreeable and easy-going person who was reluctant to complain too much, and that her failure to report shoulder pain could be due to language barriers or being too busy with her unwell husband at the time.
15Another matter relied upon by the defendant to demonstrate that Mrs Zissis’ memory was unreliable was the histories recorded in the medico-legal reports of Mr Miller, Dr Serry and Mr Speck. Each of these doctors recorded Mrs Zissis as saying that she did not have any (or any significant) back and neck problems prior to the accident. These recorded histories are contrary to the clear evidence at the hearing that Mrs Zissis had a long history of neck and back pain.
16On the other hand, in her oral evidence, Mrs Zissis was able to recall the back and neck pain she suffered prior to the accident in some detail. She also frankly acknowledged when she lacked recall of a particular matter. The histories in the medico-legal reports were not put to her in cross-examination, so she was not given the opportunity to explain them. I accept that the most likely explanation for the inaccurate histories was that there was some issue with either the interpretation of the medico-legal experts’ questions or the interpretation of Mrs Zissis’ answers. In any event, the inaccuracies do not impact directly on her descriptions of right shoulder pain.
17Mrs Zissis was a forthright witness, who made appropriate concessions, honestly admitted when she had a lack of recall and showed no signs of play acting or exaggeration of her symptoms. She has consistently said she has suffered right shoulder pain since the accident in her reports to the medico-legal experts and in her oral and written evidence in Court. Having carefully considered the clinical records, other recorded histories and her oral and written evidence, I accept her evidence that she has suffered right shoulder pain since the accident.
18I also accept that the car accident provides a mechanism for injury to Mrs Zissis’ right shoulder. The accident involved a significant T-bone impact from another car travelling at 50 kilometres per hour.[15] Although Mrs Zissis was unable to recall a specific strike to her right shoulder, she did give evidence that her seatbelt came undone during the course of the accident. It is understandable, in the circumstances, that she lacked any further recall of what was a traumatic incident involving a strike to the head.
[15] Northern Hospital Discharge Summary dated 2 July 2017, DCB 48
19In view of these findings, Mr Chehata’s opinion provides the most coherent explanation for Mrs Zissis’ ongoing right shoulder symptoms. Mr Chehata explains that this right shoulder pain is due to a massive tear of Mrs Zissis’ rotator cuff. He supports this conclusion by reference to both an ultrasound taken in April 2019 and his direct observations from a detailed physical examination. He explains that there are two possible causes for this tear. The tear is either due to degenerative changes or it is due to the accident. He makes it clear that this is a difficult case. However, he ultimately concludes that the car accident caused the tear. He maintains this view having reviewed Mrs Zissis’ clinical records. His opinion is fortified by my own factual finding that Mrs Zissis has suffered right shoulder pain since the accident.
20Mr Speck, on the other hand, does not accept that Mrs Zissis’ right shoulder pain was caused by a tear to the rotator cuff. He says that Mrs Zissis suffered, at most, a soft-tissue injury to her right shoulder in the car accident, which would have resolved within three months. He provides no explanation for the ongoing right shoulder pain which Mrs Zissis has suffered since the accident, other than that it is due to a pre-existing chronic pain syndrome (notwithstanding the fact that she did not suffer right shoulder pain prior to the accident). In the circumstances, I prefer the views of Mr Chehata.
21For completeness, I record that I also prefer the opinion of Mr Chehata to that of Mr Miller, a medico-legal orthopaedic surgeon who provided a report on 27 August 2018, without the benefit of the ultrasound which showed the rotator cuff tear. I have given little weight to the opinion of Mrs Zissis’ general practitioner in relation to causation of her right shoulder injuries. It was apparent the general practitioner’s view was formed only after considering Mr Chehata’s report. His opinion cannot be fairly viewed as bolstering Mr Chehata’s report in that context.
22I accept that, as a result of the accident, Mrs Zissis is suffering from an impairment of her right shoulder, in the form of a chronic rotator cuff tear.
Was the right shoulder injury serious?
23In view of my findings as to the honesty and reliability of Mrs Zissis’ evidence, I accept that, as a result solely of the impairment to her right shoulder:
(a) she has pain in her right shoulder that is there most of the time and gets worse with increased shoulder use;[16]
(b) at times she struggles to sleep at night and has to sit in an upright position to ease the pain[17] (although she did have pre-existing sleep issues for other reasons);[18]
(c) she has to avoid any activities which involve heavy lifting, pushing or pulling with her right arm;[19]
(d) she struggles with food preparation and cooking and is limited to only simple tasks;[20]
(e) she struggles with tasks such as heavy lifting and weeding in the garden;[21] and
(f) she struggles with housework, particularly anything that involves her right hand.[22]
[16] Second affidavit dated 7 September 2021, paragraphs [7]-[8] and [10], PCB 16
[17] Second affidavit dated 7 September 2021, paragraph [13], PCB 17
[18] See, for example: T34, L29-T35
[19] Second affidavit dated 7 September 2021, paragraph [14]
[20] T44, L25–T45, L12; T49, L 24–T51, L8
[21]First affidavit dated 31 January 2019, paragraph [12], second affidavit dated 7 September 2021, paragraph [20], PCB 18 and T51, L24-27
[22] T50, L27-31
24I am satisfied on the basis of Mr Chehata’s report that these consequences are long term.
25Mrs Zissis was taking pain medication prior to the accident. I am not satisfied that her right shoulder impairment has significantly increased her use of medication.
26Mrs Zissis has had physiotherapy for her right shoulder, although it appears from the clinical notes that most of the physiotherapy she has received related to her back and neck.
27Mrs Zissis has not had surgery to her right shoulder and surgery has not been recommended.
28As Mrs Zissis was a pensioner prior to the accident, her right shoulder impairment has not impacted on her capacity to engage in meaningful employment or her earning capacity.
29Before the accident, Mrs Zissis lived a simple life which revolved around cooking, cleaning, gardening, shopping and caring for her family members. Her main recreations were gardening and cooking. I am satisfied that her right shoulder impairment has severely impacted her ability to cook and limited her ability to engage in activities such as weeding, planting and heavy lifting in the garden. It has also impacted on her ability to maintain her home in the manner she would like. This, in turn, has impacted on her independence and required her to lean more heavily on her two adult children than she would have liked, including requiring her son to act as her live-in carer.
30It was apparent from her oral and written evidence that this was deeply upsetting for her. This was corroborated by the clinical notes of her physiotherapist:
(a) on 1 April 2019, she is recorded as “Not sure why R) shoulder hurting so much”;[23]
(b) on 6 May 2019, she is recorded as saying that she felt “really upset today as felling pain worsening Feeling like not coping well due to pain”;[24]
(c) on 20 May 2019, she is recorded as saying that “no point on living w/ pain since loss of husband”;[25] and
(d) on 11 June 2019 she is recorded as “making comment again re death and better to die as pain++”.[26]
[23] PCB 158
[24] PCB 156
[25] PCB 156
[26] PCB 155
31It is also corroborated by the second report of her general practitioner, who records that in April 2020 Mrs Zissis presented with severe depression and anxiety as a result of her continued pain in the neck, shoulder and lower back.[27]
[27] PCB37
32Having considered all of the above, I am satisfied that Mrs Zissis has suffered a right shoulder impairment which is serious, in the sense that it is more than “significant” or “marked” and “at least very considerable”.
Has Mrs Zissis suffered a serious injury to her spine?
33Having determined that Mrs Zissis has suffered a serious injury to her right shoulder, it is not necessary for me to consider whether she has also suffered a serious injury to her spine. However, for completeness, I record briefly my findings in relation to this issue.
34In relation to the neck and back, the parties agreed that this case called for a “Petkovski comparison”,[28] between Mrs Zissis’ pre-injury condition and her post-injury condition.
[28] Petkosvki v Galetti [1994] 1 VR 436
35Mrs Zissis plainly had significant issues with back and neck pain prior to the accident. She frankly accepted as much in cross-examination. However, I accept her evidence that prior to the accident that pain did not prevent her engaging in activities such as cooking, cleaning and gardening. As she said, before the accident “I could still do everything I needed to do”.[29]
[29] T22, L7-8; see also T33,L26-30.
36I accept that the worsening in Mrs Zissis’ back and spine pain following the accident was due to an aggravation of degenerative changes in her spine resulting from the accident. In this respect, I prefer the opinions of Professor Richard Bittar and Mr Miller (both medico-legal experts called by the plaintiff) to the opinion of Mr Speck that she experienced no more than a soft-tissue injury in the accident. The views of Professor Bittar and Mr Miller better explain the distinct and ongoing worsening of pain subsequent to the accident.
37I specifically accept that, solely as a result of the aggravation of her neck and back pain in the accident:
(a) Mrs Zissis experiences serious persisting pain in her neck and back, which is much more severe and constant than any previous spinal pain.[30] Whereas previously her pain was intermittent, now it is constant, albeit of varying intensity;[31]
(b) Mrs Zissis experiences pain and numbness radiating down her right leg;[32]
(c) her neck and back movements are now more restricted;[33]
(d) her capacity to do normal chores around the home, such as mopping, vacuuming and scrubbing, has been seriously restricted;[34]
(e) she struggles with the gardening, particularly chores which involve bending, twisting or heavy lifting;[35]
(f) her capacity to cook has been impacted,[36] although it is her right shoulder impairment that has had the greatest impact on her cooking;[37]
(g) she is limited in her capacity to stand and walk and her pain worsens if she stands for any length of time;[38]
(h) her capacity to care for her husband in the final year of his life was severely impacted;[39] and
(i) she no longer goes to the shops independently, always being accompanied by her son.[40]
[30]First affidavit dated 31 January 2019, paragraph [6], PCB 8; second affidavit, dated 7 September 2021, paragraphs [3]-[4], PCB 16
[31] First affidavit dated 31 January 2019, , paragraph [8], PCB 8
[32] First affidavit dated 31 January 2019, paragraph [6], PCB 8
[33] Second affidavit dated 7 September 2021, paragraph 5, PCB 16
[34] First affidavit dated 31 January 2019, paragraph [11], PCB 9
[35] First affidavit dated 31 January 2019, paragraph [12], PCB 9-10
[36] First affidavit dated 31 January 2019, para graph [11], PCB 9
[37] T49, L 24-T51, L8
[38] First affidavit dated 31 January 2019, paragraph [10], PCB 9
[39] First affidavit dated 31 January 2019, paragraph [11], PCB 9
[40] T45, L16
38I also accept that Mrs Zissis finds her pain and limitations deeply distressing and that this has impacted upon her mental health.[41]
[41] First affidavit, paragraph [12], PCB 9-10; PCB 37
39Mrs Zissis is able to walk for short distances and climb or descend short flights of stairs.[42] Video-surveillance evidence was tendered at the trial. That video appeared to show her kicking a small ball (presumably with a grandchild) and chasing the ball down a small flight of stairs. I am conscious that that video was a single snapshot in time. In any event, it was not inconsistent with her evidence.
[42] See, for example: T45, L18-21
40I am not satisfied that the aggravation of Mrs Zissis’ neck and back pain has led to an increase in medication. However, I am satisfied that, whereas previously that medication was effective to enable her to engage in her usual activities of daily living, now it is not.[43]
[43] T34, L4-6
41I accept that, since the accident, Mrs Zissis has required regular physiotherapist treatment as a result of the aggravation of her neck and back pain, whereas previously she had only seen a physiotherapist on one occasion. The defendant relied upon a “Multidisciplinary Care Plan” for Mrs Zissis dated 17 December 2008, which lists the details of a physiotherapist under “Current Service Provider”. It submitted that this form established Mrs Zissis required physiotherapy prior to the accident. I am not prepared to reject Mrs Zissis’ evidence that she saw the physiotherapist on only one occasion prior to the accident solely on the basis of this form. Further, although Mrs Zissis is not currently receiving physiotherapy, I think it reasonable to assume she will require future physiotherapy treatment for her neck and back once the COVID-19 pandemic is resolved.
42Mrs Zissis has not had surgery to her spine and surgery has not been recommended.
43As Mrs Zissis was a pensioner prior to the accident, her spinal impairment has not impacted on her capacity to engage in meaningful employment or her earning capacity.
44Having considered all of the above matters, I am satisfied that Mrs Zissis has suffered an impairment to her spine (in the form of aggravation of pre-existing degenerative changes), the consequences of which are both serious and long term. I place particular weight on her experience of constant (as opposed to intermittent) pain; the impact on her capacity to engage in gardening and shopping; the impact on her independence; and the consequent impact on her well-being and mental health.
Conclusion
45I am satisfied that Mrs Zissis has suffered a serious injury as a result of the accident. I will grant leave to bring proceedings for damages and hear from the parties on the question of costs.
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Certificate
I certify that these 13 pages are a true copy of the reasons for decision of her Honour Judge Tran, delivered on 3 November 2021.
Dated: 3 November 2021
Susan Thomas
Associate to her Honour Judge Tran
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