Reports commissioned by the defendant for the purpose of these proceedings
105The defendant has had the plaintiff medically assessed by Dr Seamus Dalton, a consultant physician with sports medicine and rehabilitation qualifications. Initially, the defendant sought to rely upon 3 reports by Dr Dalton. These were dated 20 February 2009, 1 June 2010 and 18 October 2010. There were 2 subsequent reports dated 22 November 2010 and 25 November 2010. The tender of these latter 2 reports was objected to and after argument, the tender was rejected. The basis for that rejection appears between paragraphs [150] to [189] of my reasons.
106In deference to the causation arguments raised by the defendant, I will set out a detailed summary with relevant extracts and subsequent analysis of the reports of Dr Dalton.
First report of Dr Seamus Dalton - 20 February 2009
107Dr Dalton first examined the plaintiff on 17 February 2009 and following that examination he prepared his report dated 20 February 2009.
108Dr Dalton reviewed the plaintiff's history, including a history of orthopaedic and musculoskeletal injuries, and a history of the incident and the subsequent course of the plaintiff's symptoms and treatment. Dr Dalton included in his historical summary the fact that the plaintiff had a history of prior problems in both knees which required treatment, including unknown surgical treatment, from 2 doctors from within the same practice that had Dr Dalton's name on the letterhead, namely Dr Crichton and Dr Cross.
109Dr Dalton identified the plaintiff's principal complaint that related to the collision in question as being his right shoulder symptoms comprising an awareness of a dull ache in the right deltoid region and in the right upper arm at rest, with the experience of pain in connection with sleeping on the right side, and occasional waking at night. Dr Dalton also noted the history of soreness in the plaintiff's right shoulder with movement into abduction or elevation, particularly in the upper ranges. The plaintiff reported that these problems had caused him to avoid lifting with his right arm and had caused resultant frustration due to inability to resume his pre-injury sporting activities comprising weight training in the gym, surfing and swimming.
110Dr Dalton stated that on his first examination of the plaintiff there was "no visible signs of muscle wasting or deformity of the biceps muscle belly". It appeared from that description, that Dr Dalton's finding in this regard was based on observations rather than on measurements of the biceps muscle. In fact Dr Dalton explained in oral evidence that his notes did not disclose that he had made any measurements of muscle wasting.
111Dr Dalton drew attention to the fact that the plaintiff had what he considered to be a very muscular upper torso with a protracted posture due to muscle imbalance. He noted that he had observed a painful arc of the plaintiff's right shoulder, with movements in the range 50 degrees to 160 degrees of elevation. He also noted what he described as mild slight restriction of internal rotation at the right shoulder. He also noted that in the prone position, there was relative weakness of the scapular stabilisers with external rotation and extension of the right shoulder, associated with some pain when lying in the prone position.
112Dr Dalton gave his initial diagnosis without the benefit of the information available from the MRI scan taken of the plaintiff's right shoulder on 3 March 2009, some 14 days following his examination. Dr Dalton made the following initial diagnostic comment:
"... The mechanism of injury whereby Mr Meakes apparently fell on his right elbow could well have aggravated an underlying degenerative rotator cuff tendonopathy. I think it is unlikely that an acute or significant rotator cuff tear was sustained at that time given the clinical notes of Dr Hingerty and his reported symptoms, but he may well have sustained an injury to the rotator cuff tendons as a result of the fall. It is equally possible that a mild injury or aggravation was sustained at that time and was further aggravated by the need to sleep on his right shoulder following the injury to his left chest. It is quite clear however that following the subject accident Mr Meakes has developed symptoms and signs of a symptomatic rotator cuff tendonopathy of his right shoulder which has failed to respond to treatment to date and which impacted on his ability to undertake his normal social and recreational activities.
Opinion
Given his age, the history of previous injuries (notably the fracture of his distal clavicle) and his sporting pursuits over the years it is entirely possible that the rotator cuff tears identified on ultrasound were degenerate and pre-existed the subject accident. That scenario is not usual but it is quite clear from the history and Mr Meakes (sic) normal social and recreational activities that such pathology had not been symptomatic prior to the subject accident. There is also the possibility that a small tear resulted from the fall that was sustained at that time. Further investigation with an MRI scan of his right shoulder would clarify the extent of the underlying rotator cuff tendinosis and/or tears and would go some way to determining whether those changes are more likely to be acute or chronic. The results of that investigation may also influence any decision regarding further treatment.
This man's complaints are consistent with the mechanism of injury and findings of examination. No inconsistency between his reported symptoms and restrictions and my findings on clinical examination were noted. No signs of pain or illness behaviour were apparent at this assessment."
Second report of Dr Dalton - 1 June 2010
113It was not immediately clear from the terms of Dr Dalton's second report dated 1 June 2010, which was prepared in response to an unidentified letter of request, as to whether Dr Dalton had in fact re-examined the plaintiff between the time when his first report was sent, and when his second report was prepared. The reference in the second report to "clinical examination today" , which appears at page 4 of the report, was clarified in Dr Dalton's oral evidence when he confirmed that " today " was a reference to 16 February 2010 and not 1 June 2010, the latter date being the date on which he signed off on his second report.
114In his second report, Dr Dalton referred to the 3 March 2009 MRI report of the plaintiff's right shoulder in the following terms:
"... Subsequent to that [earlier] assessment Mr Meakes underwent an MRI of his right shoulder which was performed on 3 March 2009. That revealed a severe insertional supraspinatus tendonosis with a full thickness tear measuring approximately 4 mm in width and without significant retraction. There was also some intermediate articular surface tearing extending over approximately 12 mm extending to the footprint on the greater tuberosity. The tear extended across the rotator interval with a high grade articular surface partial thickness tear of the subscapularis allowing medial subluxation of the long head of biceps tendon which was noted to be grossly thickened and hyper-intense in keeping with severe tendonosis. A longitudinal split tear within the long head of biceps tendon was reported. There was also evidence of early atrophic change in the superior fibres of the subscapularis muscle belly"
115Dr Dalton's second report went on to state:
"... Mr Meakes told me that he feels that his nocturnal pain is much as it was prior to surgery. He has started doing some gentle breaststroke but has not resumed weight-training in the gym. He feels that his shoulder is worse than it was prior to surgery and that his condition has plateaued. He finds this very frustrating as not only does he have ongoing pain but he has also lost muscle bulk and strength as a result of not being able to maintain his weights in the gym. He has resigned his memberships from the gym and also the golf club given that he hasn't been able to play a proper round of golf since the MVA.
Mr Meakes told me that he purchased a rural property and farm in 2009 but he has been unable to do the fencing and other manual tasks around the property on account of his shoulder.
His shoulder pain has also limited his capacity to do home maintenance and at the moment his son mows the lawn"
116Dr Dalton's second report records that the plaintiff's only significant reported residual problem to be with his right shoulder, with pain localised mainly to the posterior aspect of the shoulder and an awareness of pain with both active and passive elevation of the right arm. An associated problem was reported to be the experience of pain when sleeping on the right side, with occasional waking at night. Dr Dalton also noted the plaintiff's complaint of limitation of the ability to do strengthening exercises in both passive and active elevation of the right shoulder.
117In his second report, Dr Dalton's description of his clinical examination of the plaintiff made no reference to any observations or measurements of any muscle wasting of the plaintiff's right upper limb or shoulder. His second report stated:
"Clinical examination
He displayed full active elevation of the left shoulder with 150 degrees of forward elevation and 145 degrees of active abduction.
This compared to the right shoulder where he had 105 degrees of active flexion and 90 degrees of active abduction. External rotation with his arm by his side was unrestricted but external rotation in the 90 degree abducted position was limited to 70 degrees. He reported pain with passive elevation of the shoulder beyond 90 degrees at which point he displayed some guarding and muscle co-contraction.
When lying supine I was able to achieve a near full-range of external rotation in abduction although this was associated with some pain at end-range. His pain was felt posteriorly. Passive elevation was limited by pain and muscle guarding with palpable co-contraction of the latissimus dorsi. Pain was clearly felt at the posterior aspect of the shoulder with tenderness over the posterior rotator cuff and in the posterior axilla.
He reported pain with resisted abduction, flexion, internal and external rotation. Pain was felt with all isometric testing of the rotator cuff muscles. Overall, his shoulder appeared to be more irritable than it was at his last assessment and there has been a definite loss of both passive and active glenohumeral motion"
118Dr Dalton was of the opinion that the plaintiff did not appear to have benefited symptomatically or functionally as a result of the surgery that Dr Quain had performed on him on 16 April 2009. He observed that the plaintiff was affected by some muscle imbalance and muscle co-contraction which could be contributing to his pain, which appeared to Dr Dalton to be of mechanical origin, and localised to the posterior aspect of the right shoulder. He also observed that recovery from rotator cuff repair surgery could take a variable course, and was often delayed as a result of post-traumatic capsulitis. He was also of the opinion that the plaintiff had developed post-operative stiffness in his right shoulder, which was a recognized complication of shoulder surgery in his age group, and that this had left him with a less than full range of elevation movement of the shoulder.
119Dr Dalton expressed the following view:
"...In my opinion, he presents with symptoms and classical signs which are consistent with a symptomatic rotator cuff tendinopathy, mild capsulitis, as well as some scapulohumeral dysfunction related to muscle co-contraction and guarding in response to his pain. It is difficult to determine whether the rotator cuff repair is intact given his general irritability during the examination but if he fails to improve then further investigation with an MR arthrogram would help to determine whether the rotator cuff repair remains intact and the extent to which there is post surgical scarring and capsulitis."
120Dr Dalton also observed that unfortunately for the plaintiff, his frustration appears to be greater, given that his right shoulder function now appeared to be less than it was prior to the surgery, and Dr Dalton appeared to have accepted that this had an impact on the plaintiff's normal domestic, social and recreational activities, as the following extract of his report, confirms:
"... He is unable to play golf, exercise in the gym or undertake physical tasks on his rural property but his reported complaints and disabilities are consistent with the underlying pathology and findings on examination. Unfortunately, he reports that his symptoms are worse and his loss of function is greater since undergoing surgery and that was confirmed with my clinical examination today. However, his condition has not stabilized and there is some potential for further recovery at this stage."
121Dr Dalton confirmed that there were no inconsistencies between the plaintiff's reported symptoms, complaints and restrictions, and his findings on clinical examination. He noted that the plaintiff's condition had not yet stabilised, and he pointed to the possibility that there may be some improvement with the passage of time. He suggested ongoing physiotherapy and other forms of treatment for a further 3-6 months, including attention to the correction of the plaintiff's posture and muscle imbalance.
122On the question of the aetiology of the plaintiff's right shoulder problems, Dr Dalton referred to his original assessment in Sydney 2009 and stated:
"... At the time of that report I opined that more likely than not the rotator cuff tendinopathy was degenerate (sic for degenerative) and pre-existing at the time of the fall but there was the possibility that a small rotator cuff tear was sustained at that time, although that appeared to be unlikely given his presenting symptoms when he was initially assessed by Dr Hingerty. It is my view that more likely than not Mr Meakes had a pre-existing rotator cuff tendinopathy which subsequently became symptomatic. ..."
123Dr Dalton took the view that when he saw the plaintiff in February 2009, before the 3 March 2009 MRI scan had taken place, the plaintiff's condition did not warrant surgery. Obviously, Dr Quain took a different view in recommending surgery to the plaintiff
124Significantly, in his second report, after reviewing the pre-operative MRI scan of the plaintiff's right shoulder, Dr Dalton expressed the following view:
"... It is also my view that the [tendon] pathology noted at the time of surgery was to a large extent representative of a degenerative rotator cuff tendinopathy with tearing. Unfortunately, it is often difficult to determine if and when surgery is required in such cases and the results of surgery can be unpredictable with an accepted risk of post-traumatic stiffness and ongoing symptoms related to the underlying degenerative tendinopathy."
125The above opinion was expressed by Dr Dalton without access to Dr Quain's operation note. The clinical basis upon which Dr Dalton expressed the view that the pathology seen at surgery was largely representative of a degenerative tendinopathy with tearing, was not self-evident in his report. This issue was later explored in Dr Dalton's oral evidence.
Third report of Dr Dalton - 18 October 2010
126Dr Dalton saw the plaintiff for a third time on 7 September 2010 and this led to the preparation of his third report which was dated 18 October 2010. The letter of request for a third report from Dr Dalton was tendered in evidence as Exhibit "T". That letter enclosed the medical reports and materials that I have already summarised in a preceding section of these reasons. In that letter, Dr Dalton was asked to comment on the plaintiff's injuries, his current complaints, his disabilities, the prognosis, the effect of the plaintiff's injury on his work ability, his need for future treatment and the costs of such treatment.
127In his third report, Dr Dalton updated the plaintiff's history and confirmed that the plaintiff had ceased physiotherapy in July 2010, but had nevertheless continued his exercises at home. The report also recorded the plaintiff's statement that Dr Quain had told him that his shoulder condition had plateaued and was unlikely to change.
128Dr Dalton noted the plaintiff's ongoing complaint of residual sharp transient pain at the posterior aspect of the right shoulder on sudden movements but which was not present at rest. He noted that the plaintiff still experienced pain on sleeping on his right side, which caused him to wake at night. He also noted the plaintiff continued to occasionally take painkillers at night. Dr Dalton also recorded the plaintiff still lacked mobility of the shoulder in elevation and abduction and had an inability to resume normal weight training, being restricted to only light weights. Dr Dalton recorded a history that the plaintiff had not returned to the gym, had not resumed playing golf, and had not undertaken physical activities on his property, such as fencing. Essentially, he was of the view that the plaintiff's current complaints, his level of function and the findings revealed on his examination, had not significantly changed from the examination he had carried out on the plaintiff on 16 February 2010.
129Dr Dalton noted the plaintiff still continued to exhibit " a somewhat protracted posture with mild restriction of cervical rotation ". Dr Dalton compared his findings on examination on 7 September 2010, with his findings on examination on 16 February 2010. In this regard, Dr Dalton stated:
"... He still presents with a somewhat protracted posture with mild restriction of right cervical rotation. Examination of the shoulder revealed no difference in mobility from when he was examined in February 2010. Active movements are still limited to 105 degrees active flexion and 90 degrees active abduction of the right shoulder with mild restriction of external rotation in the abducted position but no loss of external rotation in neutral abduction.
As before he still displayed some guarding and muscle co-contraction with passive elevation of the shoulder but when lying supine I was able to achieve almost full range of external rotation in abduction. Passive elevation and flexion of the arm was limited by pain with associated muscle guarding. There was visible and palpable co-contraction of the latissimus dorsi muscle and Mr Meakes reported pain felt at the posterior aspect of the shoulder with some tenderness in the posterior axilla and over the posterior rotator cuff muscles.
As before, he reported pain with resisted abduction, flexion, internal and external rotation. Overall, I felt his shoulder was somewhat less irritable than it had been at his last assessment".
130The interval between these assessments on 16 February 2010 and 7 September 2010 was 7 months.
131Dr Dalton expressed the opinion that the plaintiff had not yet exhausted his options for treatment. He thought it was worthwhile for the plaintiff to pursue soft tissue therapy and muscle energy release, as he thought some of the plaintiff's loss of shoulder elevation was due to muscle guarding and co-contraction, which may benefit from such therapy. In oral evidence Dr Dalton explained that the factors of co-contraction and guarding were not necessarily intentional, and could operate concurrently. He thought that an MR arthrogram would be of assistance in determining whether the surgical repair of the plaintiff's rotator cuff had remained intact, and could determine the extent to which there was post-surgical scarring and capsulitis which may be restricting his shoulder joint movement.
132Dr Dalton concluded his third report by undertaking an analysis of the plaintiff's medical reports that had been provided to him. He undertook a summary of the plaintiff's history in the context of his own previous opinions. He concluded as follows:
"In terms of causation, I believe there is little doubt that the rotator cuff tendinopathy and tear identified on investigation and at surgery are largely degenerative in origin and did not result directly from injuries sustained in the subject accident. To what extent there was symptomatic aggravation as a result of injuries sustained at that time is unclear. It is noted that Mr Meakes suffered abrasions to the right elbow and therefore some aggravation of the shoulder may have occurred at that time although it may not have been clinically apparent. A more likely scenario is that the pre-existing rotator cuff tendinopathy became symptomatic as a result of Mr Meakes having to sleep on his right side following the injury to his left ribs. Other than a previous fracture of his right clavicle sustained in 1980 there is no indication that he had experienced right shoulder problems prior to the MVA.
I have examined the clinical notes of Dr Bruce Greig and in records dating back to 15 August 2001 up until the time of the MVA I can find no reference to right shoulder symptoms.
In conclusion, my view is that Mr Meakes had a pre-existing rotator cuff tendinopathy which had reportedly been asymptomatic. Subsequent to the MVA his right should became symptomatic, most likely as a result of sleeping on his right side in bed. He may have suffered a mild aggravation as a result of the fall although there is no documentation to suggest that this was clinically apparent. Unfortunately, a rotator cuff tear and tendinopathy can become symptomatic following innocuous trauma. In a gentleman such as Mr Meakes where there are pre-existing postural and muscle imbalance problems around the shoulder girdle continuation of symptoms is more likely.
Opinions may differ as to whether or not surgery was indicated in this case. I formed the view that when I examined Mr Meakes in February 2009 surgery was not clinically indicated and that a more comprehensive exercise programme was of potential benefit. Unfortunately, the results following rotator cuff surgery can be unpredictable and at the current time Mr Meakes is left with ongoing pain and shoulder dysfunction which prevents him from resuming some of his pre-injury recreational and social activities."
Oral evidence of Dr Dalton
133Dr Dalton gave oral evidence in addition to the opinions he had expressed in his 3 reports respectively dated 20 February 2009, 1 June 2010 and 18 October 2010, that were admitted into evidence: Exhibit "5". The defendant sought to elicit additional evidence from Dr Dalton in terms that extended beyond the confines of the exhibits that comprised his reports. That additional evidence was rejected for the reasons appearing at paragraphs [150] to [189] of my reasons.
134Dr Dalton explained that over the previous 25 years, his clinical practice has been primarily concerned with shoulder injuries and rotator cuff pathology, both in the areas of research and in publications.
135Dr Dalton said that following his clinical examination of the plaintiff, he considered that the plaintiff's prior history of fracture of the clavicle was not a contributor to the shoulder symptoms which were the subject of this claim: T183.23.
136In essence, Dr Dalton's oral evidence was to the effect that with normal ageing, the natural progression was for the degeneration of rotator cuff tendons in a variety of ways, ranging from tendonitis or inflammation of the tendon, partial tears, full thickness tears, delamination or longitudinal tendon splitting, all of which are encompassed within the umbrella diagnosis of tendinopathy: T183.30 - T183.48. He stated that even full thickness rotator cuff tears of significant size, and due to degeneration, can be asymptomatically present even where there is full movement: T184.45; T185.40. He also stated that tendinopathy was a normal ageing process in the rotator cuff tendon: T185.45. He further explained that tendinopathy could be due to degeneration within a tendon over time, whether by over-use or otherwise, so that a single trauma could cause haemorrhaging or tearing with resultant pain: T185.10 - T185.30. He also stated that trauma can either cause a delamination or splitting injury, or alternatively, an underlying tear can be added to by superimposed trauma: T184.2.
137It was against that background explanation that Dr Dalton proffered the view that the rotator cuff tears in the plaintiff's right shoulder that were evident on ultrasound examination carried out on 8 September 2008 were degenerative in origin, and could have pre-existed the injury in question: T185.50 - T151.1.
138Dr Dalton explained that an asymptomatic tendinopathy of the rotator cuff could be made symptomatic by trauma, such as by a fall on an outstretched arm, a rapid throw of a cricket ball, a serve of a tennis ball, other activities ranging from digging in the garden to swimming, lifting weights, playing tennis regularly, summed up as either due to injury, or due to over-use, with symptoms appearing on waking: T186.5 - T T185.15. I did not understand the illustrative examples cited by Dr Dalton to represent an exhaustive list of possible causes.
139The history given by the plaintiff concerning his involvement with swimming was explored with Dr Dalton. In his first consultation with the plaintiff, Dr Dalton recorded that the plaintiff had informed him that he had participated in the " occasional light swim but not freestyle ": T 186.45. Dr Dalton confirmed that this was the only item of history provided to him by the plaintiff on the subject of his participation in swimming after his injury: T187.49. Dr Dalton described that item of history as having been recorded in terms as verbatim as it could be, but he acknowledged that his note of that history bespoke the answer to the question he had asked, rather than a verbatim account of the question itself: T188.13.
140Dr Dalton explained his view of the significance of the MRI findings of the plaintiff's right shoulder taken on 3 March 2009, which was approximately 2 weeks after his first examination of the plaintiff on 17 February 2009, and which was in turn, 6 months after the plaintiff's injury. In this regard, at T188.37 - T189.9, Dr Dalton made the following observations:
"Q. You have recorded the MRI scan done 3 March, 2009 revealed a severe insertional supraspinatus tendinosis with a full fitness [sic for thickness] tear measuring approximately four millimetres in width and without significant retraction. I won't read the rest of it out it's in your report. What if anything assistance were the MRI findings to your diagnosis of Mr Meakes shoulder problem?
A. The MRI revealed evidence of tendinopathy and tearing within the supraspinatus tendon. It also revealed tear extending into the subscapularis which is another tendon on the front, along with a tear in the biceps tendon and medial subluxation. The subscapularis tendon covers the biceps tendon and keeps it in a groove and if it has been torn the tendon can displace out. That's fairly extensive pathology over quite a wide area so the [sic for to] have that pathology as a result of trauma that's a significant amount of pathology, plus a lot of those changes were clearly longstanding. The evidence of atrophy in the subscapularis muscle barely refers to the other tendon on the front of the shoulder. So my conclusion in that was that there was evidence of longstanding, widespread degenerative changes within the rotor cuff and biceps tendons.
Q. Did that later [finding] in any way [alter] the diagnosis arising from the first examination in your report?
A. Not in the sense that that was consistent that Mr Meakes had a rotator cuff tendinopathy that would account for the symptoms that he had when he presented to me initially."
141Dr Dalton re-iterated his earlier view that when he saw the plaintiff on 17 February 2009, which was before he had shoulder surgery, he felt the plaintiff would have benefited from a comprehensive exercise programme and that surgery to the shoulder was not warranted. He noted that the plaintiff did not appear to have benefited from surgery in the 12 months after the surgery and he still had limitation of movement, more pain on examination than before, and his function in the shoulder was significantly less than when he had previously assessed the plaintiff: T189.28 - T189.26.
142Dr Dalton noted that there was evidence of muscle imbalance and co-contraction in the muscles of the plaintiff's right shoulder. At T189.28 - T191.27, he explained this in the following terms:
"Q. You referred in your first report to muscle imbalance is that something that persisted on examination at the time of your second report?
A. Yes.
Q. What is this muscle imbalance that you're describing?
A. With the shoulder the arm pivots and rotates in the socket and the rotator cuff sort of holds it in place and if the arm elevates it has to slide underneath this bone above. So when you get pain when you lift your arm it will either occur because there's a abnormality in the tendon as it rides through or you can actually get pain with normal tendon because the movements abnormal, if you like pinches the tendon, so in everybody who has this sort of what we call painful arc there is an element that may be mechanical whereby the arm moves in a way that if you like jams up against the overhanging bone. If you are tight in some muscles and weak in other muscles that movement is what you call a synchroniser, it's not correct and that can generate pain. So you see those symptoms in young people or young athletes who have relatively normal tendons simply because they have loose shoulders or tight shoulders or poor muscle balance. You certainly see that a lot in weight lifters because they do a lot of weight training where they get an imbalance in their shoulders and my feeling with Mr Meakes was that that was an area that hadn't been explored and may benefit him.
HIS HONOUR Q. Did this have something to do with the concept of co contraction which you've mentioned in your report?
A. Co contraction developed at subsequent times and that is certainly an interesting phenomenon that you see in shoulders. You have patients who literally cannot elevate their arm above 90 degrees because for whatever reason some muscles are pulling down as other muscles are pulling up. I liken it to driving with your foot on the brake and accelerator and you will have patients that literally will do that and if you get them to retrain they can restore full movement. So it's a significant finding as part of managing shoulders in my practice.
Q. I'm just closing that off, what causes co contraction?
A. Co contraction can be learned in a sense that if your brain is saying this is going to hurt and another part of the brain says I don't want to go there, so it can be an avoidance of pain, whether that's conscious or subconscious is often difficult to discern. It can be--
Q. Is that synonymous with guarding?
A. It's a sort of guarding, but guarding, you can have guarding where you're just reluctant to move, but this is an actual palpable contraction of the muscle that's resisting the arm going up at the same time as other muscles are pulling up. So it can be responsive pain, it can be an imbalance, it can be voluntary, it can be involuntary. You have patients - I've seen patients that are like that and you show them what they're doing wrong and they can walk out of the room doing it better. Other patients have real problems because they've learnt this pattern so there's a very heterogeneous group. It can be a voluntary guarding or involuntary guarding.
CLEARY
Q. Co contraction aside, in terms of muscle imbalance did you reach a conclusion as to the likely cause of that as it presented in Mr Meakes?
A. Yes, I felt not having the opportunity to treat Mr Meakes, it was difficult to say whether this would have responded to intervention such as massage or physiotherapy to change that. So I didn't have an opinion on whether it was intentional or unintentional or pain generated or otherwise.
Q. Could it be something that arose from a particular for example, weight training regime which had artificially developed muscles in one area but not in others?
A. Certainly, one of my comments in my reports has been that Mr Meakes is very strong and dominant in certain muscle groups and those muscle groups that are the most dominant are the ones that actually pull the arm down, so muscles that are co-contracting are very much the muscles that are working in this position so weights can reinforce that, yes. Sorry, weight training can reinforce that.
Q. Do you believe that with perhaps the assistance of a sports physiologist or other expert, Mr Meakes could rework his training regime to overcome or correct that imbalance?
A. Yes I think the difficulty once surgery has happened, things change, but I think I commented in my initial report that a modified exercise program had some potential to be of benefit.
Q. The final occasion on which you examined Mr Meakes--
HIS HONOUR: Sorry, before you leave the second report if I may Mr Cleary.
Q. When you said you had no opinion on the course of the balance(?) [cause of the imbalance] because you hadn't examined him I'm just asking you to go to page 4 of your second report under the opinion section, you say in the first paragraph there that there are no inconsistencies between his reported symptoms and complaints and the restrictions and your findings on clinical examination. So how do I read that sentence in the light of your previous answer?
A. What I said in terms of what the guarding was due to going back to my previous comment about the variety of causes I didn't have an opportunity to form an opinion as to whether that would respond to soft tissue releases or re-training. The findings of the examination were consistent but that doesn't help me to determine whether the guarding of the co-contractor(?) was a learned behaviour, pain mediated, muscle imbalance that had been set in through exercises that he was doing, so I didn't have the opportunity to examine him. What I meant to [say to] your Honour was I didn't have an opportunity to treat if you look, or to re-train or look and observe over a period of time to see it with some constructional changes that would modify.
Q. Do you mean to analyse it over time?
A. Yes."
143Dr Dalton's evidence was also directed at the issue of the causation of the plaintiff's post-injury problems. In this regard, at T192.27 - T192.40, Dr Dalton stated:
"CLEARY
Q. Dr Dalton on the assumption that Mr Meakes was struck by a motor vehicle and as the result of that that he fell onto the road landing on his right elbow and that that event rendered symptomatic pre-existing tendinopathy in his rotator cuff, at what stage would you expect the symptoms to present?
A. That would depend on the extent of the aggravation in a sense. If it was an aggravation sufficient to cause tearing or damage to the tendon I would expect the symptoms to develop probably over the next 24 hours, often after the night's sleep. So the extent of aggravation is relevant in terms - so if someone had injured a shoulder and rendered it tendinopathy symptomatic the extent of symptoms and the delay of onset of symptoms gives some indication as to the extent of aggravation, if that makes sense. So certainly in terms of tendinopathy as I said is a general term, if you say do I think such a situation would be consistent with a tear, no. Do I think it's consistent with a mild aggravation that may have - it's possible, yes."
144The causative significance of the plaintiff's participation in the ocean swim at Maui within a month of his injury was explored with Dr Dalton at T193.10 - T194.40, in the following terms:
"CLEARY
Q. Dr Dalton could the plaintiff within a month of the accident swim in open water for say 52 minutes using an overarm swimming style but modified such that his left arm was extended forwards fully in the course of each stroke such that he was breathing as he always did to his left side and that he was using his right arm in a rounded fashion keeping his elbow bent rather than fully extending it, could participation in such activity have aggravated rotator cuff tendinopathy?
A. Yes.
Q. Could participation in such activity be the reason for the continuance of symptoms beyond one month post accident in time, beyond that time?
A. Yes.
Q. Do you believe that that is a more likely explanation for the persistence of symptoms than the trauma of the motor vehicle accident as you understand it?
A. If that's the situation, yes. On the basis that, if I could qualify that your Honour. If a patient had a rotator cuff tendinopathy or tear that has been aggravated as a result of an injury, modified stroke or otherwise, because breaststrokers get the same problem, I would be surprised if that individual could undertake those activities without significantly aggravating their shoulder. I certainly wouldn't be advising them to do it and I would expect then to be an increase in symptoms if the tendinopathy was symptomatic before embarking on that sort of situation.
HIS HONOUR
Q. We are often told that swimming is a low impact activity on the joints so could you correlate that for me?
A. The commonest problem with swimmers is shoulder problems your Honour, we talk about swimmers' shoulder and in fact this type of scenario with the rotator cuff one of the commonest causes of a rotator cuff becoming symptomatic in the older group is swimming so certainly at the athlete level the commonest problem swimmers get is shoulder problems, we talk about swimmer's shoulder as being one of the commonest thing we see, so swimming is an activity, it is not just the reaching it is the what I call the intel rotation, it is the pulling through, it is a rotation that is quite aggravating. So one of the commonest complaints with patients with rotator cuff problems is that kind when they swim.
Q. The motion you have just described is a downward pushing of the water back as it were, down and back.?
A. That is why breaststroke is the same problem anything where you are moving your arm away from your body it is almost, short of doing it like a doggy paddle the minute you take your arm out to the side, whether it is a round arm or a shortened stroke there is still what we call abduction, there is still rotation, a lot of patients with back pain who I have who swim for their rehabilitation, when they get a shoulder problem they can't maintain their rehabilitation, so they get frustrated because they can't exercise and the problem with swimming is that short of literally holding a kick board, or doing doggy paddles it is very hard to do any of the strokes without potentially aggravating a shoulder problem.
Q. The modified swim the plaintiff described involved him using the left arm overarm and right arm in a lateral sweeping fashion coincidental with a body tilt in connection with his breathing so it would appear to me that the left arm was doing all the work, does that make sense to you?
A. Well then if I have a swimmer with a shoulder problem I advise them to breath to the symptomatic side because you are better off turning your head and rotate as you are going - if you are breathing to your left side and you have a bad right shoulder you are actually placing all that on your shoulders, I would actually advise someone to breath to their bad side and certainly you can modify your stroke and that will reduce the amount of aggravation then you have to take into account things like the length of the swim or the type of water and all those things, but certainly reducing the reach will help but I would normally - one of the things you advise patients to do is actually increase their body roll to their sore side so that they don't have to - whereas if you roll to the other side you are actually placing more load, so they're the sort of things you'd advise a patient who has a should problem to avoid aggravating it.
CLEARY
Q. And as you've said had there been any significant aggravation of Mr Meakes' rotator cuff in the motor vehicle accident you would be most surprised if he was capable of participating in such an event?
A. Yes, of course every individual is different with what they do but I would be surprised if there'd been a significant - certainly if there had been a tear and as I said I think a tear is highly unlikely to have occurred I would be surprised that the injuries could undertake that sort of swim without aggravating that shoulder.
Q. Had Mr Meakes not participated in such an event is it possible that there could have been a resolution of his shoulder problem over time without surgery?
A. On the basis that the rotator cuff tendinopothy and these changes that are present are relatively common."
145At this point in Dr Dalton's evidence there was an objection to the defendant seeking to adduce opinion evidence from Dr Dalton as to whether it was more probable than not that the plaintiff's shoulder problems would have resolved without surgical intervention. That evidence was excluded by an evidentiary ruling because the defendant could not point to exceptional circumstances justifying the late introduction of opinion evidence on this topic where such evidence had not been the subject of a reasoned opinion that had been served in accordance with the rules: Uniform Civil Procedures Rules 2005, r 31.28(4); Sch 7, cl 5(c).
146Although at page 5 of Dr Dalton's first report dated 20 February 2009 he stated he would not recommend surgery, Dr Dalton was not treating the plaintiff, and I do not consider that this portion of Dr Dalton's report represented an adequate basis, supported by reasons, for introducing evidence to the effect that the plaintiff's right shoulder problems would probably have resolved without surgery. I consider that to have been so because on the same page of his report, Dr Dalton had flagged that surgery may be needed if there was no further improvement, particularly since it was then noted that the plaintiff's right shoulder condition was not stabilised at that time. Ultimately, whether or not surgery was indicated on clinical grounds was a matter of clinical judgment by the treating specialist, Dr Quain. Dr Quain's evidence in the form of his reports, was not challenged. In any event, Dr Dalton conceded there was room for debate on the subject.
147On the issue of the approach to be taken to clinical examination of any muscle wasting present in the upper limb and shoulder, Dr Dalton's approach appeared different to the one taken by Dr Mastroianni. Whereas Dr Mastroianni actually measured wasting of the plaintiff's right biceps muscle - Exhibit "A", Dr Dalton did not record any measurements of the upper limbs in his own clinical examination of the plaintiff. Dr Dalton explained that this was because he considered there was no clinical indication for him to do so in the context of a medico-legal examination: T199.40 - T200.9.
148At the conclusion of his evidence, at T200.10 - T201.37, Dr Dalton was to identify the analytical factors that led him to generally conclude the plaintiff's tendinopathy was of longstanding origin rather than being due to trauma:
"HIS HONOUR
Q. Mr Dalton, if you could go to your second report of 1 June, the first page of that report, Mr Cleary asked you some questions about the MRI findings which, in your discussion on that topic, led you to the conclusion that the tendinopathy was to be interpreted as longstanding because there was no - well just leaving it there, longstanding, I think, was the summary of your opinion. Is that correct?
A. Yes.
Q. If you go to the last sentence of that paragraph, you refer to evidence of early atrophic change in the superior fibres of the subscapularis muscle belly. Am I correct in assuming that early atrophic change refers to a small degree of change?
A. Yes, and that is an MRI you will see - you'll see it on an MRI and you may see it before you see clinically and the subscapularis muscle is not visible.
Q. So if that's the case and those early atrophic changes are accepted in that vein, then how does that sit with the earlier view that the tendinopathy was of longstanding origin?
A. The reason for reaching that conclusion was based on early atrophic change. It can often take - it will take a while to develop. It depends, in someone who has had a significant injury and not used their arm, it will occur more rapidly. But the point with this was that there was tearing of varied severity, extending across a wide area of the rotator cuff, and importantly there was also gross thickening and changes in the bicep tendons suggesting a severe and significant tendonitis, so encompassing all of that, it was a wide area that was involved. In shoulders that I see, that is a typical finding of someone who has had a longstanding degenerative change in their shoulder.
Q. What are the analytical factors that point you more towards the longstanding nature of such a problem, rather than a more recent trauma?
A. If you have a single traumatic event, if I could use an analogy, in the lumbar spine, for example, if you have someone who has three disc problems and there is a history of an injury, it's highly improbable that a single injury would cause changes in three discs at the same time. These type of tears, you know, where there is a small tear there is tendinosis, there is an insertional tear there is a partial thickness over a wide area, for that to occur as a single event that would have to be a significant event, a shoulder dislocation, major trauma, which would have affected several areas of the rotator cuff and the biceps at the same time. So that's not to say that a portion of that may not have been aggravated by a single event, but as a whole that would not be consistent with a single injury of the severity that is presented from the history. If you dislocate your shoulder over the age of 50, you have a 70 to 80% chance of having a rotator cuff tear because the tendons at that age are degenerate and then the damage may be quite extensive, but that's a significant trauma. The patient has significant pain, bruising, weakness. It's evident clinically they've had that sort of trauma.
Q. Finally, on the second page of this report, I wonder if you could help me reconcile something, this report was based on an examination some five months earlier and on the second page, in the first paragraph, there's a reference to the plaintiff having seen a physiotherapist on 5 June, which either postdates your report by four days or predates it by nearly a year. Can you assist me with that?
A. I believe that refers to 5 June 2009, your Honour.
Q. On the third page of this report, in the fifth-last line of that paragraph, you refer to the factors of muscle per [sic for co-] contraction and guarding in response to pain. From a medical diagnostic point of view, is it important to differentiate which of those factors is at play or does it not matter?
A. It is important because--
Q. And if so, how do you do it?
A. You do it on the basis of the clinical examination to the best of your ability, so the rotator cuff tendinopathy is usually symptomatic with specific clinical tests that you will do. The capsulitis usually you diagnose because there's a restriction of movement, but that's very difficult to differentiate from restricted movement because of pain or guarding. So it is important, but it can be very difficult to differentiate and in some cases you might even resort to doing things like an injection into the joint to see if that changes the pain. So, yes, it can be difficult.
Q. Must they operate mutually exclusively or can they operate in conjunction with each other?
A. They can all co-exist, so you can have one, two or three components contributing to the problem."
149I will analyse the significance of the issues arising from the foregoing array of medical evidence in arriving at my findings concerning the injuries suffered by the plaintiff in the collision in question. Those findings appear at paragraphs [268] to [300] of my reasons.