Judd v TAC [2025] VCC 486

1. It was not in dispute that the plaintiff was involved in a transport accident on 30 January 2018.
2. What is in dispute is:

(a) The extent to which comorbidities are attributable, and/or triggered by the right shoulder injury; and

(b) What consequences flow from the compensable injury, and whether the consequences constitute a serious injury.

1. The plaintiff was born in New Zealand in September 1964 and is currently 61 years of age.[3]
2. She was raised in New Zealand where she attended secondary school until the end of Year 10 and then worked in various jobs before joining the New Zealand Army Reserves. She obtained a truck licence and worked as a freight handler, truck driver, forklift driver and a bus driver for the railways.[4]
3. She worked for a bus company in Christchurch performing school runs and she also did some part time work as a retail assistant in shops, as well as commercial cleaning work.[5]
4. The plaintiff came to Australia in 2013 and settled in Queensland. She drove buses in Rockhampton for about 3 years before moving to Melbourne where she worked for Ventura as a bus driver for about 6 months.[6]
5. She moved to Ballarat in April 2017 and started working as a bus driver with CDC Ballarat Pty Ltd driving public transport buses on a full-time basis with some weekend work. She earned approximately between $800 and $1,000 per week after tax.[7]
6. Before her injury, the plaintiff deposed that she was generally fit and well and did not have any problems with her right shoulder. She was a competitive Pétanque player for which she used her dominant right arm. When in Rockhampton, she developed a blood clot and some gynaecological issues, requiring a minor procedure which she made a good recovery from. She did not have any significant mental health problems before the transport accident.[8]

1. On 30 January 2018, the plaintiff was driving a bus, and whilst proceeding through a roundabout, a car pulled out in front of her. She turned hard to the left to avoid a collision and as she did, she felt a pop in her right shoulder and the onset of severe pain.[9]
2. The plaintiff was able to complete her shift and reported her accident at work.[10]

1. The plaintiff attended her general practitioner at Mt Clear Medical Centre on 5 February 2018 where she was prescribed painkillers and was referred for an ultrasound which she underwent on 9 February 2018.[11] She continued at work driving buses, but the pain worsened with time.
2. On 12 April 2018, she attended her general practitioner complaining of right shoulder pain and that she could not drive busses due to ongoing pain.[12] On 27 April 2018, she reported to her general practitioner that she had undergone a cortisone injection that day and that her right shoulder was "quite sore".[13]
3. On 10 May 2018, the plaintiff reported to her general practitioner that she had trouble sleeping, that she could not get comfortable, and that she heard a click in her shoulder when she did her physiotherapy exercise.[14]
4. The plaintiff was referred to an orthopaedic surgeon, Mr Scott Mason, who she saw on 12 June 2018. He noted that the ultrasound revealed some tendon pathology as well as bursitis[15] and he arranged for her to undergo an MRI on 18 June 2018. On examination, he observed a reduced range of motion on the right shoulder compared to the left, some relative weakness in the right rotator cuff muscle and signs consistent with subacromial impingement syndrome. The MRI showed a small lesion of calcific tendinosis at the bursal surface of the anterior supraspinatus tendon and mild subacromial bursopathy.[16] On 20 August 2018, Mr Mason injected the bursa at the right shoulder with steroid.[17]
5. In September 2018, the plaintiff was referred to orthopaedic surgeon, Mr Matthew Evans. He noted that examining her shoulder was difficult due to pain and that she had mild tenderness over her greater tuberosity. He could fully elevate her arm passively and she did not appear to have stiffness, but maintaining elevation was extremely painful. Her anterior and posterior cuff strength was good. She had markedly positive impingement signs, and the MRI scan showed an intact rotator cuff with calcific deposit near the insertion of the supraspinatus. The tendon itself was quite swollen and there was subacromial bursitis present. The X-Ray showed a large subacromial spur and he thought that this, in conjunction with the swollen chronic calcific rotator cuff tendinopathy, was the cause of her symptoms.
6. Mr Evans performed a right shoulder arthroscopic limited capsular release, subacromial decompression and bursectomy on 10 October 2018. He observed that there was mild capsulitis with thickening of the anterior capsule, and the rotator cuff was intact with some minor fraying of the superior labrum, which he debrided.
7. In the subacromial space, there was severe bursitis with a grossly thickened bursa obliterating the space and he performed a bursectomy and an extensive bony acromioplasty.[18]
8. He recommended she undergo physiotherapy post-operatively. When reviewed two months post-surgery, Mr Evans noted that the plaintiff's pain had improved but the shoulder was becoming quite stiff again. He suggested she undergo a hydro-dilatation to free up the scar tissue before the shoulder "gets too stiff".[19] She underwent a hydro-dilatation on 8 March 2019[20] and again on 26 April 2019.[21]
9. On 30 September 2019, the plaintiff saw Mr Andrew Byrne, orthopaedic surgeon, who noted a history of her having undergone two cortisone injections which did not help. Her sleep was significantly affected, and she had lost movement prior to surgery. Two hydro-dilatations since the surgery also had not helped, nor physiotherapy. Endone was required for pain control as well as Panadeine Forte and codeine. She was at work on light duties but not driving the bus. Mr Byrne took a history of her having had a fall in July 2019 over chicken wire when in her sling, landing on her right shoulder and arm, hurting her right shoulder again. He also took a history of a second fall in August 2019 where she hurt her right knee. An MRI in September 2019 was reported as showing a labral tear and delamination in the supraspinatus as well as a partial frozen shoulder.[22]
10. On 9 October 2019, the plaintiff was seen by Miss Katherine Davis, physiotherapist, at the Melbourne Shoulder Group. She noted that the plaintiff had a severe case of frozen shoulder. Miss Davis also recorded a history of a recent fall onto the right shoulder and noted the contents of the MRI report which demonstrated a small antero-superior labral tear, small cyst and a "new minor intrasubstance tear of the peripheral supraspinatus tendon".[23] She expressed some concern with the extent of the proposed surgery by Mr Byrne given the degree of inflammation and irritability present in the shoulder which she believed would be compounded by new trauma related to surgery and "the re-aggravation that the fall has caused".[24]
11. On 13 December 2019, Mr Byrne performed a right shoulder arthroscopy, decompression, labral & cuff repair. The plaintiff was in the ICU Unit for 4 days due to a reaction to the medication,[25] and whilst there, she had two generalised tonic-clonic seizures.[26] Mr Byrne's operation report noted the previous decompression with spurring over the anterolateral aspect of the acromion. He performed a further limited decompression, and an examination of the rotator cuff revealed a delamination tear. Mr Byrne's proceeded with a mini-open repair. The subacromial bursa was excised.[27]
12. The shoulder continued to trouble her upon returning to work in 2019 in office administrative duties. In 2020, she tried returning to office work again but was made redundant on the basis that she was not fit for her normal duties.[28] She was also homeless for a period of time before managing to find a house in Miners Rest in August 2020.[29]

1. The plaintiff has had a complex and ongoing medical history since the accident in January 2018. She has had numerous falls following the transport accident. In addition to the falls recorded by Mr Byrne in 2019, in January 2020 she fell whilst travelling on a bus, which caused her pain, but she deposed that she suffered no significant permanent change in her condition.[30] On 7 January 2020, she underwent an ultrasound guided left wrist injection[31] and in April 2020 she was referred to Dr Ek, orthopaedic specialist, for De Quervain's tenosynovitis for which she underwent surgery to the left wrist on 26 June 2020.[32]
2. In late 2020, after her employment was terminated, her mental health deteriorated. She was feeling suicidal, and she was admitted under the Mental Health Act 2014 (now the Mental Health and Wellbeing Act 2022) for 72 hours at Ballarat Hospital after the intervention of the CAT team.[33] She remained an inpatient in the psychiatric unit and was prescribed multiple medications for the management of her psychiatric conditions.[34]
3. Whilst an inpatient, she had a fall (or a tonic-clonic seizure)[35] and suffered multiple facial bone fractures, multiple subacute endplate fractures to T8, T9, T10 and T12 and a dislocation of the left shoulder.[36]
4. In January and February 2022, she consulted doctors at Mt Clear Medical Centre for bilateral knee pain and was referred for an MRI.
5. In October 2022, she was admitted to the Ballart Base Hospital for worsening back pain and intermittent pins and needles affecting both feet. CT scans demonstrated a disc bulge at left L5/S1. There was another admission in December 2022 for 9 days because of a history of facial droop and left sided weakness. A principal diagnosis of functional neurological disorder was made. In May 2023, she presented at the Emergency Department with right foot pain following a fall and was diagnosed with plantar fasciitis.
6. She was referred to Dr Thomas Kraemer, neurologist, who diagnosed her with tonic-clonic seizures which she is prescribed medication for. Her seizures and the associated symptoms which include tremors, are a significant ongoing problem.[37]
7. Since swearing her affidavit in August 2024, the plaintiff gave evidence that in October 2024 she was admitted to a hospital in Port Macquarie with kidney stones and cellulitis. The legs were drained of fluid, and the kidney stones were successfully treated. After her inpatient stay in Port Macquarie, she was transferred to a hospital in Kempsey and from there she was transferred to Coffs Harbour Hospital around 5 December 2024. Since then, she had been undergoing psychiatric care and health care. It was her intention following discharge from Coffs Harbour Hospital to return to Victoria.

1. The plaintiff deposed that she has ongoing right shoulder pain, and as a result she cannot raise her arm or reach behind her back. The pain spreads from the shoulder joint down to her right arm, and the pain gets worse with forceful or repetitive use of her right arm. Her shoulder often clicks or grinds when she uses her arm repetitively.[38] She can sometimes get a sudden increase in pain even when doing something seemingly minor.[39]

1. The plaintiff has difficulty with day-to-day tasks including showering or dressing herself due to the restricted movement in her right arm.[40] She relies on a special handle to use when showering, and she has found a special bra which attaches from the front as she cannot remove a normal bra behind her back.[41]
2. She struggles with domestic activities such as shopping, cooking and cleaning, but she can manage if she breaks things into smaller tasks and does them bit by bit. She relies on a clothes rack to hang her washing, rather than using a clothesline which would require her to raise her right arm.[42]

1. The plaintiff deposed that she used to be a competitive Pétanque player and was in the top 30 in Victoria before her injury. She used to practice several times per week with the Smythesdale Pétanque Club and also had specialist coaching regularly, competing all over Victoria. This was a passion of hers and she is devasted that she cannot return to playing Pétanque.[43] She also deposed that she used to play badminton but cannot return to social badminton as a result of her injury.[44]
2. She also would volunteer as a foster carer for dogs who were otherwise housed in an animal shelter. The plaintiff deposed she can no longer manage a dog on a lead due to her injury, and as a result she has stopped volunteering. She had greatly enjoyed this activity, and she loved dogs and felt like she was helping out.[45]

1. She is no longer physically capable of working, including as a bus driver. Her shoulder prevents her from any job that involves physical activity. She used to enjoy working as a bus driver and the interactions she would have with the passengers and work colleagues. She said she is unlikely to work again, and this has been devastating to her both financially and for her mental wellbeing.[46]

1. In cross-examination, the plaintiff conceded that she had numerous falls as a result of seizures and that as a result of the falls she had on occasion suffered injury. She accepted the first fall occurred in about late July 2018 and that she had reported to her general practitioner that she had aggravated her shoulder pain. She also agreed she had a fall over a chicken wire in July 2019 and another fall at work some months later in about September 2019 when she fell on her right shoulder. Her evidence was that the fall on the right shoulder made the right shoulder pain worse and "yeah, if - because it - yeah, it was already injured".[47]
2. The plaintiff confirmed that she fell in February 2020 when she was travelling on a bus and the driver slammed on the brakes, causing her to fly off her seat and injure her left hand and right shoulder, which was in a sling at the time. There was the fall that occurred on 10 December 2020 when she struck her head and fractured some bones in her face, dislocated her left shoulder and fractured her back. She was also asked about an attendance at Mt Clear Medical Centre on 30 March 2020 when she presented with "new swelling on the right shoulder with no increase in pain" and received a referral for an X-ray for a right wrist injury following a fall on 1 March 2021.
3. She conceded that she had ongoing and troubling back pain since December 2020, and it was impacting her sleep in April 2021. Her evidence was that it was troubling her after the fracture.[48] When asked whether the back caused her problems currently, she responded "yes, it aches a little bit".[49]
4. She had had a lot of problems with her knees over the years in terms of pain and the left one was worse than the right. She had to use crutches because of the knee pain and because of her plantar fasciitis. She had been advised to lose weight to help with the left knee pain but had been unable to do so because of the epilepsy medication. She agreed that the knee pain severely affected her mobility and that she had been prescribed Mobic for it.[50] She experienced left knee pain three quarters of the time and she had difficulty walking.[51] The lower leg swelling caused difficulties with walking, and she described her walk as a waddle,[52] and she was significantly disabled by it.[53] She also had issues with her ankles for which she took painkillers three times a day[54] and she walked slowly with a limp. She had another fall in June 2022, injuring her left hand.
5. She conceded she had problems with her balance in the past, and more recently, her ankles were causing her problems with her balance, "probably a couple times a week".[55] She still had pins and needles in her feet, with the right one still a problem intermittently. In October 2022, she was using cannabis oil to help with the shoulder and back pain, but her current medication was only paracetamol.
6. She could not play badminton because of the combination of her problems with her left knees and right ankle and agreed "that would be hell".[56] However, she could not play Pétanque because of the shoulder problem, as "pétanque is slower."[57] Fostering dogs was no longer possible due to both the shoulder and her leg problems.
7. She acknowledged she had left sided weakness and was diagnosed with a functional neurological disorder in December 2022. She agreed the history Mr Buzzard recorded of a fall in Christmas 2022 that likely had led to further injury to her right shoulder causing "a rubber band feeling" which was still present, was correct.[58]
8. There was another fall in April 2023 as a result of the right foot plantar fasciitis, causing her to fall on her knees. She was prescribed oxycodone, paracetamol and Celebrex for the plantar fasciitis, and it disappeared in or around September 2024.
9. In December 2023, she was ill with blood clots and a collapsed lung for which she was hospitalised. After her discharge, she was not allowed to drive and had accommodation in Kempsey for about four months. She then spent some time homeless, living in her car from about June to October 2024, when she was hospitalised for the kidney stones and cellulitis. She had a seizure whilst hospitalised but the origins of it were unclear. Her commercial driver's licenses were suspended because of the epilepsy, and she only held a normal driver's licence.
10. She also agreed she had memory issues in recent years, and the seizures had likely caused damage to her brain that affected her memory.
11. She had an intermittent hand tremor in her right hand. Although she was right hand dominant, she had learnt to use her left hand following her surgery, although she agreed she could not use her right hand when she had the tremor. The tremor could come on weekly on average, and it varied how long it lasted. She could not use the right hand when she had a tremor.
12. The memory problems would impact on her ability to work as would her loss of licence and her right ankle and left knee problems.
13. Regarding her sleep, she was cross-examined in relation to a history obtained by Dr Gorai, that ever since anti-epileptics were started, her sleep cycle was deranged, and that she is chronically sleep deprived, getting barely 3-4 hours' sleep a night. The plaintiff agreed that the Zonegran gave her insomnia. Her evidence was that "I can't sleep on the right-handed side which I would normally sleep on. So I've got to go to the left but I can't because - all night, because of the surgery on that side. So you're (sic) flipping and tossing and turning between both sides".[59]

1. As discussed above, Mr Mason first saw the plaintiff on 12 June 2018 on referral from her general practitioner in May 2018. He noted that the plaintiff experienced difficulty with overhead activities, performing her daily tasks, and being unable to perform her occupational duties especially when driving heavy vehicles.

1. On 7 September 2018, Mr Evans noted that the plaintiff's pain never settled down following the accident and there was no significant improvement with physiotherapy and two steroid injections. The plaintiff reported having difficulty elevating her arm above shoulder level and experiencing pain both during the day and at night.

1. Mr Byrne examined the plaintiff on 30 September 2019, and upon examination, he noted a marked loss in internal rotation with some loss of external rotation. He diagnosed the plaintiff with a delamination tear in the supraspinatus as well as a partial frozen shoulder.[60]

1. Dr Tan was provided with 50 enclosures by way of background, including medical reports, diagnostic tests such as radiological studies, ultrasounds, CT and MRI scans, EEG scans and clinical records, which he reviewed and summarised in his report.
2. He noted that the plaintiff experienced a seizure in the context of surgery in December 2019. Documentation from around December 2019 indicated that the post-operative seizures were considered medication related, although he noted no further details were available. Based on the documentation provided, he was of the opinion that the plaintiff may have had either epileptic seizures, non-epileptic seizures or both. The plaintiff had no memory of the seizures but had been told they were tonic-clonic seizures. She sustained numerous injuries in the unwitnessed falls and such injuries occurred as there was no predicted warning with the seizures. However, they were often associated with impaired awareness. He stated that such unpredictable circumstances could result in increased morbidity and frequently tended to occur in people with epilepsy rather than people with non-epileptic seizures.
3. The plaintiff reported tongue biting over the lateral aspect of her tongue which was consistent with an epileptic seizure. She also experienced seizures in the context of missing her anti-seizure medications. However, since adhering to her anti-seizure medications from July 2022, she had not experienced further seizures. This was consistent with a response to treatment for epilepsy.
4. Dr Tan noted that the plaintiff had co-existing anxiety and depression and a history of functional weakness, as well as the potential for non-epileptic seizures.
5. Dr Tan had difficulty in determining the cause of the plaintiff's epilepsy. In his opinion most medication-related toxicity events result in acute symptomatic seizures, with the seizure disorder terminating upon cessation of the medication, such as opioid analgesics like Endone and Tramadol. The plaintiff may have had a predisposition to developing epilepsy in the absence of the accident the subject of this application, but this was challenging for him to differentiate, given the sequence of events. There was no documented head injury, and an MRI of the brain did not reveal any epileptic focus. However, the presence of epilepsy footprints on an EEG recording, consistent with the characteristic signature for an idiopathic generalised epilepsy, could confirm the diagnosis. The history, which only reported convulsive seizures, suggested that the plaintiff may have either focal epilepsy or idiopathic generalised epilepsy. The age of onset was later than expected and that made idiopathic generalised epilepsy less likely. In conclusion, Dr Tan considered the medications prescribed had unmasked an underlying epilepsy condition rather than causing one.

1. Mr Pullen was also given extensive documentation in anticipation of his examination of the plaintiff for medico-legal purposes. He recorded the plaintiff was complaining of persistent right shoulder pain, weakness and stiffness following the injury sustained in the transport accident which occurred in the course of her employment. The plaintiff described shoulder pain that regularly interrupted her sleep and was exacerbated by attempts to lift heavy objects. She also complained of right upper limb weakness and shoulder joint crepitus with movement. She had marked restriction in shoulder motion and was unable to reach above shoulder height or place her hand behind her back.[61]
2. Mr Pullen noted the plaintiff had difficulties performing activities of daily living because of her right shoulder condition. Her ability to participate in a number of activities including personal care, gardening, dressing and domestic duties were also limited because of the exacerbation of right shoulder pain. She experienced increased shoulder pain when she travelled, undertook domestic activities, and was unable to vacuum, hang washing onto the clothesline and fasten her bra. She confirmed that prior to her injury she enjoyed playing competitive Pétanque, pushbike riding, and riding her motorbike, but was unable to undertake these activities because of the exacerbation of her right shoulder pain.[62]
3. He diagnosed her with right shoulder subacromial impingement syndrome, bursitis, calcific tendinopathy, supraspinatus tendon tear and adhesive capsulitis. He also noted there was a possible right shoulder chronic pain syndrome.[63]
4. In a supplementary report, Mr Pullen commented on a report of Mr Viral Shah.[64]
5. In light of Mr Shah's opinion, Mr Pullen considered whether following the plaintiff's second hydro-dilation and with the shoulder in a sling, she was vulnerable to further injury. In his opinion, the plaintiff's rotator cuff tendons may have been weakened and more vulnerable to further injury following the hydro-dilatations. However, the significance of the injections on her subsequent right shoulder MRI scan in September 2019 and surgery in December 2019 showing evidence of a supraspinatus tendon tear was uncertain and hard to quantify.[65]
6. Mr Pullen was asked to comment on whether on the balance of probabilities, the plaintiff would have required surgery as performed by Mr Byrne, had she not suffered injury in the accident. Mr Pullen noted that Mr Byrne had documented that the plaintiff had persistent right shoulder pain and stiffness and a partial frozen shoulder as well as the delamination tear of the supraspinatus. Therefore, the surgery in December 2019 was in part related to persistent right shoulder adhesive capsulitis that developed following the plaintiff's accident in January 2018. The adhesive capsulitis arose as a complication of the plaintiff's original injury and subsequent right shoulder surgery in October 2018.[66]
7. Mr Pullen concluded that the plaintiff's current right shoulder impairment had arisen as a result of complications related to the treatment of her original injury following her accident on 30 January 2018. In light of the plaintiff's history of injury, the development of the right shoulder condition, the absence of any pre-existing right shoulder problems, the clinical investigations and surgical findings, her current right shoulder impairment had arisen as a result of the complications related to the treatment of her original injury.

1. The plaintiff was examined by Dr Doig on instruction from the employer's workers compensation insurer, for the purposes of an impairment assessment. He noted that an initial ultrasound scan in February 2018 revealed calcification in the supraspinatus tendon for which the plaintiff had undergone a cortisone injection and physiotherapy. He documented that the plaintiff underwent two surgical procedures, the first in October 2018 and then in December 2019. He also noted that a "follow-up MRI scan in September 2019 revealed a deterioration in the pathological findings".[67] Despite this, Dr Doig did not comment further on the findings of the MRI. He recorded that during rehabilitation the plaintiff developed De Quervain's tenosynovitis affecting the dorsal lateral aspect of the left wrist for which she underwent a decompression in June 2020. He noted that the plaintiff continued to suffer restrictions of the right shoulder which had a poor prognosis. He assessed a 19% impairment to the right upper extremity which translated to an 11% whole person impairment.[68]

1. Professor Singh also examined the plaintiff for the purposes of a psychiatric evaluation of her permanent impairment. He diagnosed a major depressive disorder secondary to a number of factors including her physical state and lack of employment. He also suggested there may be a mild cognitive impairment and early evidence of Alzheimer's disease. He considered there was a poor prognosis.[69]

1. Dr Gorai also reviewed the plaintiff on instruction from the WorkCover insurer for the purposes of providing an opinion with respect to liability for the plaintiff's "neurological condition and the relationship to her accepted shoulder condition".[70] He obtained a history of the plaintiff suffering injury to the right shoulder in a transport accident which had resulted in two surgeries because of chronic pain and rotator cuff issues, as well as soft tissue injuries. As a result of the right shoulder immobilisation, the plaintiff had minimal function in the right upper limb, and as a result of using the left upper limb, she developed left wrist related issues which led to a De Quervain's tenosynovitis and possibly an injured superficial branch of the left radial nerve.[71]
2. He also observed that the plaintiff developed a major depression as a result of the injury, and whilst in hospital, she was given Tramadol for pain relief, developing seizures. The plaintiff subsequently experienced falls, sustaining injury to her teeth and multiple facial fractures, due to generalised tonic-clonic seizures. Even after Tramadol was discontinued, she continued to experience these episodes of seizures. She was seen by neurologist Dr Thomas Kraemer and was prescribed anti-epileptic medications, Zonegran and Epilim. Dr Gorai noted that ever since the anti-epileptic medication commenced, her sleep cycles were "deranged", and she was chronically sleep deprived.[72] She had chronic pain and suffered from chronic depression for which she was medicated. He noted she used to play Pétanque as a sport and reached the top 30 in Victoria, however, she had to discontinue this because of her right shoulder injury. She also had memory issues and developed a tremor in her right upper limb.[73] She also had swelling of her feet.
3. Dr Gorai's clinical summary was that the plaintiff developed seizures and epilepsy which were in all probability linked to her injury of the right shoulder. His rationale was that she developed seizures following being in hospital and being prescribed Tramadol. Thereafter, because of the multiple other issues that she developed following the injury, she was chronically sleep deprived, and the sleep deprivation, anxiety, stress, depression, loss of employment and license, were all factors which lowered the threshold for developing seizures. He considered the possibility that the plaintiff may have a tendency for underlying genetic generalised epilepsy or idiopathic generalised epilepsy which possibly would never have manifested until she had the accident, but receiving the Tramadol may have triggered the seizures to take place. Nevertheless, in his clinical opinion, her epilepsy or recurrent seizures were related to the initial injury. Subsequent to the use of medication, she went on to develop tremors, which is a known side effect of Epilim, memory issues, weight gain and balance problems. He suggested a referral to Professor Mark Cook for a further expert opinion on causation and the best anti-epileptic medication for her, as well as a referral to a neuropsychologist for an evaluation of her underlying memory problems.[74]

1. Dr Shah, having reviewed the records he was provided, diagnosed a mild soft tissue injury or flare up of a pre-existing condition. He also noted a progression of supraspinatus calcification tendinosis and a new minor intrasubstance tear of the peripheral right supraspinatus tendon identified on the 14 September 2019 MRI following her subsequent fall.[75] He noted that the plaintiff developed complications with respect to the surgical treatment for the original shoulder condition which had contributed to the extent of her current restrictions. Although her prognosis was originally expected to be good, her prognosis was guarded. Dr Shah could not separate the original injury from the subsequent injuries as both were contributing to her ongoing impairment and restrictions in her daily activities, as well as her work capacity.[76]

1. Associate Professor Buzzard was asked to conduct an impairment assessment of the plaintiff's left shoulder only, although he did take a history of initial injury of right shoulder injury and the plaintiff's treatment. He noted that the first surgery was performed by Mr Evans following which she had no improvement, and the second surgery undertaken by Mr Byrne had helped more than the first. He took a history that the plaintiff had a fall around Christmas 2022 when she further injured her right shoulder. She was treated at Ballarat Base Hospital where she was reassured and thereafter saw her general practitioner.
2. The plaintiff reported to Associate Professor Buzzard of a tight rubber band feeling in the right shoulder since the fall. He examined the right shoulder and assessed her flexion, extension, adduction and abduction movements, which were about half the normal range. Internal rotation was zero and external rotation was only 10 degrees.[77] She complained of ongoing pain and restricted movements. Associate Professor Buzzard considered that the plaintiff did sustain a right shoulder injury as a result of the work incident, but it does not appear that he was briefed with the September 2019 MRI nor given a history of the falls that preceded that MRI.

1. Dr Freilich was asked to provide a neurological impairment assessment in relation to the plaintiff's epilepsy and or cognitive impairment. He noted following her surgery performed by Mr Byrne, that she had two generalised tonic-clonic seizures that self-terminated, and both the CT scan of the brain and CTA were normal. A brain MRI showed subtle diffuse supratentorial dural thickening and no other abnormality. In November 2020, he noted an admission to Ballarat Base hospital following an overdose, and whilst hospitalised, the plaintiff suffered a seizure and fractured her scapula and glenoid for which she underwent surgery on 7 February 2021.[78]
2. Dr Freilich noted subsequent psychiatric diagnoses of a major depressive disorder presenting with a number of symptoms and features which aligned with that condition, including suicidal ideation. The plaintiff also presented with a cognitive impairment. He noted she had been treated by Dr Thomas Kraemenr at Ballarat Health Service who noted her last seizure occurred on 4 February 2021, and at that time she was on Epilim. He changed her medication to Zonegran as her seizures had been well controlled, and it was safe for her to resume driving.[79]
3. He carried out a neurological examination and observed she had an intermittent, irregular tremor of the right upper limb, not likely organic. He also had the benefit of neuropsychological testing performed by Dr Matthew Hughes, consultant clinical neuropsychologist, who considered there were likely some genuine cognitive impairments associated with the seizure disorder, the head strikes, secondary to ECT and secondary to severe mental health issues, although he considered the results to be invalid given the performance validity tasks that were administered to the plaintiff. In his opinion, the plaintiff's epilepsy was not directly related to the right shoulder injury although it came on after her injury. He was unable to identify the cause, and any cognitive impairment was unrelated to the accident.

1. The defendant relied on medical reports from Dr Kingsley Ogbonna from Mt Clear Medical Centre. In a report dated 9 February 2023, Dr Ogbonna was of the opinion that the plaintiff was not fit for any duties due to musculoskeletal conditions and other comorbidities, but her medical records suggested inflammatory joint conditions which were aggravated by carrying out her duties at work.[80] Dr Ogbonna noted a significant physical impairment due to the shoulder and knee conditions. In a report dated 15 March 2023, he stated that the plaintiff had sustained multiple physical injuries due to falls and seizures including broken teeth, rib fractures and shoulder injuries and dislocations.[81] 1

1. The Medical Panel examined the plaintiff in the context of a dispute in relation to the termination of her weekly payments on the basis that she had a current work capacity. It noted that the plaintiff had an accepted right shoulder injury with an accepted injury date of 30 January 2018. The plaintiff informed the Panel that her current right shoulder symptoms were stiffness, twinges of pain when she moved it, and the inability to reach behind. She did not try to reach up behind, fearing of pain. At the supermarket, she could not lift grocery bags due to pain and stiffness in the shoulder. She did not need help to attend to her personal care and was also independent in performing her domestic tasks, although she mainly used her left-hand. She would only drive short distances and had pain when steering. Medications at the time included Panadeine Forte, ibuprofen, and Panadol, as well as medications for her seizures and psychotropic medications. The physical examinations of the right shoulder revealed a mild to moderate restriction of movement in abduction, flexion and external rotation, and normal rotator cuff function. The Panel only had reference to the 2019 MRI and shoulder X-Ray dated 1 October 2019 and not the earlier investigations. It concluded that the plaintiff was suffering from persisting right shoulder dysfunction following soft tissue injury to the right shoulder, surgically treated. He started her on Zone

1. It was submitted on behalf of the plaintiff that:

(a) The transport accident has had significant and ongoing consequences to the plaintiff especially as she is right-handed, and it has affected her ability to participate in Pétanque and her work as a bus driver.

(b) Whilst the plaintiff has a number of other comorbidities, the right shoulder is a substantial contributor to her overall disability and loss of function. Mr Pullen was fully appraised of the subsequent fall, and it was his opinion that the current condition is referable to the transport accident. Moreover, the defendant was too narrowly focused on a minor tear and the medical treatments, including the cortisone injections, the surgeries and ongoing pain was due to the adhesive capsulitis or frozen shoulder. Her impairment of the right shoulder led to serious consequences.

(c) There was complexity in relation to the medical evidence in relation to causation of the epilepsy, but two out of the three neurologists linked the condition to her injury and subsequent treatment, especially the mediation like Tramadol. Regardless of whether the epilepsy was triggered or unmasked by the treatment, it would not have occurred but for the original injury and its consequences.

1. The defendant accepted that the plaintiff suffered a right shoulder injury in the transport accident but submitted that:

(a) There is a significant dispute as to whether the current right shoulder condition is attributable to the accident, given her subsequent falls, particularly the fall in 2019 which led to the supraspinatus tendon tear and subsequent surgery. Thus, the plaintiff cannot establish that the injury was causative of the current medical condition.

(b) The medical evidence does not link sufficiently the shoulder condition to the original injury and both Mr Pullen's and Dr Doig's opinions are deficient in this regard as they have not paid due regard to the significance of the fall in 2019 and the tear to the supraspinatus that was identified following this.

(c) Even if the Court were to accept that the current right shoulder condition is referrable to the transport accident, the consequences of the injury are overwhelmed by her other significant comorbidities.

(d) The evidence does permit a delineation if any ongoing consequences are specifically attributable to the right shoulder injury. The numerous comorbidities are unrelated to the accident, and they complicate the assessment of the right shoulder. There is an absence of clear and up to date medial opinion separating the consequences from those arising out of the accident.

(e) There is a contest as to the cause of the plaintiff's epilepsy or seizures. Of the three neurological opinions, only Dr Gorai tentatively links the seizures to the accident as a result of the Tramadol she was prescribed. His opinion however was heavily qualified, and he recommended a review by an epilepsy specialist which was not followed through. Dr Freilich and Dr Tan's opinions do not support causation, at best.

(f) The Court was referred to the decisions in Rowe v Transport Accident Commission[82] and Bezzina v Phi & Anor[83] which stand for the proposition that the Court must identify the injury caused by the accident and then assess whether the consequences alone are serious, not just whether there was some contribution to the plaintiff's overall condition.

1. This application is complicated by the fact that the plaintiff sustained another injury to her right shoulder and the subsequent development of a number of debilitating comorbidities. It is necessary for the plaintiff to identify the nature of the injury she sustained in the transport accident and to delineate the consequences of that injury, in terms of the pain and suffering consequences.
2. The first radiological investigation undergone by the plaintiff on 9 February 2018 was an ultrasound for the investigation of subacromial bursitis or rotator cuff tendonitis, which confirmed fluid present in the tendon sheath of the long head of the biceps, as well as calcific supraspinatus tendinopathy and limited abduction and rotation. These investigations predated the plaintiff's first fall in late July 2018 which caused an increase in pain. In addition, she had already been referred to Mr Mason for investigations in June 2018 as she was having ongoing issues with pain and dysfunction ever since the accident. She also had undergone cortisone injections.
3. After the right shoulder surgery in October 2018, the plaintiff was diagnosed with a post-operative frozen shoulder or adhesive capsulitis. Her condition was characterised by pain, stiffness and a marked reduction in the range of motion of her shoulder. It led to a significant functional impairment and an inability to perform her pre-injury duties due to pain which also impacted on her sleep, causing her difficulty sleeping on her right side. The plaintiff also was unable to return to activities such as playing Pétanque at a high level. These functional limitations were present before the falls in 2019 and the subsequently identified minor tear of the supraspinatus.
4. The plaintiff continued to suffer from symptoms of frozen shoulder. When examined by Mr Byrne and in the context of a history of two falls, he observed marked loss of internal rotation as well as loss of external rotation and a painful arc. His diagnosis included a delamination tear in the supraspinatus as well as a partial frozen shoulder. Following the operation performed by Mr Byrne, the plaintiff continued to be troubled by the symptoms of frozen shoulder. I accept that the need for Mr Byrne's surgery was in a part to address the symptoms in respect of the frozen shoulder.
5. The plaintiff continued to undergo treatment for the frozen shoulder, undergoing a series of CT hydro-dilatation on 6 November 2020 and an injection to the right shoulder on 14 May 2024. When she underwent the ultrasound of the right shoulder on 29 April 2024, it was noted that the rotator cuff was intact and that she had right subacromial bursitis amenable to corticosteroid injection. There was normal appearance of the supraspinatus and infraspinatus tendons, the acromioclavicular joint was degenerative, the right subacromial bursa was thickened and there was demonstrated bunching with restricted abduction to 20 degrees.[84]
6. It is clear to me that the plaintiff has had ongoing right shoulder stiffness, pain and dysfunction consistently since her accident in January 2018.
7. I reject the defendant's argument that Mr Pullen was not properly appraised of the falls and that he failed to consider them in concluding that the shoulder pain developed as a result of the 30 January 2018 incident. He has provided a cogent explanation for his opinions. He was briefed with the opinion of Mr Byrne, had access to the MRI of the right shoulder taken 14 September 2019, clearly considered the reports as he has reviewed them and summarised them within the body of his own report. He also had Associate Professor Buzzard's opinion and history of the "tight rubber band feeling" the plaintiff told him of, following the Christmas 2022 fall.[85] When asked to provide a supplementary opinion, he noted that the plaintiff's rotator cuff tendons had been weakened and became more vulnerable following her hydro-dilatations but was unable to comment on the significance of the injections and surgery. Nevertheless, the indication for surgery that the plaintiff underwent in 2019 was in part related to the persistent right shoulder adhesive capsulitis that developed following the injury. The adhesive capsulitis arose as a complication of the original injury and subsequent right shoulder surgery. When Mr Pullen examined the plaintiff on 17 June 2024, she reported experiencing a right shoulder clicking sensation and a dull aching pain, gradually increasing in intensity. Subsequent clinical investigations and surgical findings reveal evidence of subacromial impingement syndrome, bursitis, calcific tendinopathy and the supraspinatus tendon tear. Operative and non-operative management of the conditions were complicated by the development of the right shoulder post-operative adhesive capsulitis and a possible chronic pain syndrome. As a result of these post-operative complications, she developed the persisting problems with right shoulder pain, weakness and stiffness. In light of this information, Mr Pullen concluded that the right shoulder impairment had arisen as a result of complications relating to the treatment of her original injury following her accident on 30 January 2018. I accept Dr Pullen's opinion.
8. I find that the plaintiff developed a subacromial bursitis and a frozen shoulder as a result of the shoulder injury that occurred on 30 January 2018. I accept that the plaintiff has not recovered from the right frozen shoulder. I also accept that the right shoulder dysfunction she suffers from now is likely attributable to the adhesive capsulitis and frozen shoulder. The ultrasound dated 29 April 2024 confirms that the rotator cuff is now intact.
9. Dr Shah's ultimate conclusion is somewhat limited by the fact that he may not have been briefed with critical documents and information. He makes the observation in his report that although he was provided with extensive paperwork from multiple doctors over an extended period, there was "missing data and at times confusing and contravening" material.[86] He questions whether the surgery planned by Mr Evans actually took place in 2018, so I query whether he was briefed with Mr Evans' operation report. In addition, he emphasised a clinical note from Mr Evans dated 7 September 2018 which stated that the plaintiff was able to elevate her arm fully and she did not appear to have stiffness, concluding that the plaintiff's symptoms had improved following surgery. This is inconsistent with Mr Evans' opinion contained in his report dated 7 September 2018 that the plaintiff could passively elevate her arm but it was extremely painful as she lowered her arm and she had markedly positive impingement. Nevertheless, Dr Shah conceded that taking into isolation the original injury and subsequent injuries, the plaintiff developed complications from surgical treatment for the original condition, leading to her current ongoing restrictions, an opinion supportive of the plaintiff's contention that the shoulder compromise is related to the initial injury. Although he qualified his opinion that the subsequent injuries made it difficult to separate the consequences, this observation needs to be considered in the context that he may have been missing critical documents when analysing the timeline of the plaintiff's injuries.
10. Mr Doig, who examined the plaintiff on behalf of the defendant's WorkCover insurer for the purposes of an impairment assessment, noted that the plaintiff following the injury, developed a frozen shoulder which did not respond to hydro-dilatation. Again, he confirmed the ongoing symptoms of a frozen shoulder. Although Mr Doig made no reference to the September 2019 MRI's reference to the history of a recent fall aggravating the pain, his report is useful with respect of his diagnosis and examination findings regarding restricted movement.
11. Although Associate Professor Buzzard was provided with the Mt Clear Medical Centre clinical records as well as those of Mr Byrne, he was not asked to address causation in the context of the plaintiff possibly having suffered further injury in these falls. His report is of limited use, save for confirmation of the severely restricted shoulder movements which have been a consistent feature of the plaintiff's presentation since the initial injury.
12. Whilst the Medical Panel's opinion has its limitations, it did comment on the nature and extent of the plaintiff's persisting right shoulder dysfunction which resulted in functional limitations and limited her capacity to drive and thus limiting her employment options.
13. I accept that the plaintiff's right shoulder condition alone is productive of the serious consequences. Her right shoulder movements are restricted because of the right shoulder condition that occurred as a consequence of the injury and this impacts on her ability to use the right shoulder.
14. Dressing v Porter[87] sets out the exercise that I am required to undertake, that is, to determine what symptoms afflict the plaintiff in consequence of her compensable injury, and with what effect. If, by reason of pain and suffering consequences the compensable injury meets the serious injury test, it is beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences.
15. Although there is a multiplicity of other conditions which impact on the plaintiff's ability to work and her ability to enjoy life, it is clear to me that the injury that she sustained in the motor vehicle accident, has led to serious consequences. Moreover, I note that the epilepsy is being well managed, she has recovered from the cellulitis, her depression is being treated, her planter fasciitis and balance problems have improved, her right-hand tremor is intermittent, though it does occur with some regularity and her back only aches "a little bit".[88]
16. The plaintiff's evidence in relation to her participation in Pétanque was not disputed. I accept that she can no longer participate in this activity in which she was engaged at a high level and was in the top 30 players in Victoria before her injury. She competed all over Victoria and was engaged in coaching several times a week. Her evidence was that it was her passion, and this was unchallenged. I accept that this is a serious consequence to this plaintiff.
17. Whilst her walking is limited due to her leg problems, she can no longer manage a lead when walking a dog and her evidence was that it was her right shoulder condition that made it impossible for her to foster dogs, although she conceded she also could not manage a lead given her leg problems.
18. Her ability to drive a bus was lost following the first surgery and is a consequence of the right shoulder injury. While she has lost her commercial driving licences and can no longer drive the bus following the epilepsy diagnoses, the Medical Panel opinion confirmed that her physical injuries and the resulting functional restrictions significantly restricted her physical ability to work as a bus driver because of the requirement to use her arms and reach forward, and extend her right shoulder to steer the bus on a repetitive basis. It also concluded that she was unable to work in other employment such as a car yard attendant, because of the functional restrictions associated with the right shoulder dysfunction. The right shoulder dysfunction limited her employment options. I accept that the right shoulder condition significantly impacts on her employment options.
19. The right shoulder condition detrimentally affects her sleep. Whilst the quality of her sleep has been impaired by medication, the impact of her right shoulder injury is such that she cannot sleep on her preferred side, the namely the right side due to pain, although she also has pain in the left shoulder. As she cannot lie on her right side, this causes her to toss and turn.
20. I accept her evidence that she uses the left upper limb as a consequence of her right shoulder restrictions, although she is right hand dominant. Whilst I acknowledge that she also uses the left-hand when she experiences the intermittent right-hand tremor, nonetheless she is restricted in using the right shoulder due to the injury and its consequences.
21. She is taking non-prescription medication for the ankle pain as well as her right shoulder pain. Dressing v Porter makes it clear that the fact that painkillers might give pain relief at more than one site of injury could not mean that the injuries themselves were not capable of dissection. I accept that she has ongoing pain in the right shoulder for which she takes medication.
22. Given the disparity in the neurological evidence, I am unable to determine that the epilepsy arose as a consequence of the treatment of the right shoulder injury. I am unable to reconcile the competing opinions from Dr Gorai, Dr Tan and Dr Freilich. The opinions range from qualified acceptance by Dr Gorai that the epilepsy arose as a result of the right shoulder injury, Dr Tan concluding that there may have been an unmasking of the epilepsy as a result of the treatment for the right shoulder injury to Dr Freilich rejecting outright that the shoulder injury was a cause of the onset of the epilepsy. In addition, the plaintiff's treating neurologist has not provided any comment as to the cause of the epilepsy. In the absence of a definitive opinion from a specialist in the treatment of epilepsy, particularly given Dr Gorai's deference to such an expert on the issue, I cannot find on the balance of probabilities that the epilepsy is attributable to the treatment of the right shoulder injury.

1. Having accepted that the restrictions of movement and pain the plaintiff suffers from in relation to the right shoulder condition; namely adhesive capsulitis and/or frozen shoulder, are a result of the injury sustained by the plaintiff and that the impact of the pain and restricted movement have on her ability to work, to participate in Pétanque, on her sleep and on her overall use of her right shoulder, I find that the consequences to the plaintiff are very considerable.
2. I consider that the plaintiff's consequences as identified constitute a serious injury to the plaintiff when assessed by comparison of other cases in the range of possible impairments and that they are at least very considerable and more than marked or significant.
3. I grant the plaintiff's application.
4. I will hear argument with respect to costs.

[1] Transcript ('T') 74 Line ('Line') 7-12

[2] Humphries & Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129 at 170 and accepted by the Court of Appeal in Barlow v

Hollis [2000] VSCA 26; (2000) 30 MVR 441, in particular, Chernov JA at paragraph [29]

[3] Affidavit of Raewyn Barbara Judd sworn on 15 August 2023, Plaintiff's Amended Court Book ('PACB') 13

[38] Further Affidavit of Raewyn Barbara Judd affirmed on 22 August 2024, PACB 20

[82] [2017] VSCA 377

[83] [2012] VSCA 161

[87] [2006] VSCA 215