Modaffari v TAC [2025] VCC 562

"I sat on the ground in the concrete area to have a cigarette where there was a sunny spot. As I was sitting there looking at my phone, I suddenly noticed Mr Chan's vehicle driving towards me. His number plate was right up at my face. I tried to get up and move out of the way, but the driver's side tyre rolled over my right ankle. I ended up face down on the ground and the tyre rolled onto my left elbow and the vehicle stopped.

Initially, I did not realise the tyre was on my left elbow and I was trying to pull myself away but my left arm was stuck. I recall I was trying to kick the vehicle to get Mr Chan's attention. A man came over and yelled out to Mr Chan and then Mr Chan turned the vehicle on again and reversed the vehicle off my elbow."[1]

1. She was taken to the Maroondah Hospital and admitted. She was diagnosed with a left elbow crush injury. Left elbow x‑ray and CT revealed no fracture and similarly there was no issue with the right ankle. She had surgery the following day to debride the left elbow wound and was then discharged from hospital on 27 October.
2. She had what appeared to be two weeks immobilising the left shoulder and arm in a sling. Thereafter, however, she appears to have continued to use the sling intermittently. She attempted a return to work in December 2016, but things with her employer were not going well and she left shortly after. She deposes to being off work for well over a year. In early 2017, she came under the care of the physiotherapist at the outpatients at the Maroondah Hospital. She continued on to see her treating doctor, Dr Sathianathan, with ongoing pain in the left elbow, which was not improving and she was placed onto Lyrica.
3. Physiotherapy treatment was for the entirety of the left arm at this stage.[2] She was struggling with the range of motion involved with that left arm.[3] Then, in October 2017, there is the first reference in the treating doctor notes to any specific difficulty with the shoulder. That occurs in the treating doctor's note of Dr Sathianathan.[4]
4. She was there noted to have a tender left shoulder and was referred for MRI. That was conducted on the basis of persisting pain and restricted movement in the left shoulder and it was diagnosed by the radiologist as mild subacromial bursitis. She continued on complaining to Dr Sathianathan of ongoing severe left pain in her shoulder.[5]
5. Ultimately, however, there was no further treatment offered for her by Dr Sathianathan and she continued on working and then transferred in March 2018 to Glen Dimplex as a sales assistant.[6] At this stage, she was receiving funding for physiotherapy through the TAC for her left arm problems.
6. However, at some point in 2018, that physiotherapy treatment funding ceased - the plaintiff gave evidence that she ceased her treatment at that stage as she wasn't sure how to challenge the decision. She also accepted in cross‑examination that ultimately, she had a gap in all treatment from the time of the physiotherapy funding being cut to about April 2021 when she returned to Dr Sathianathan. That represents a significant gap in treatment.
7. On her return to see Dr Sathianathan in April 2021, she was complaining of severe discomfort in the left shoulder.[7] Further radiology was requested and conducted once again revealing nothing sinister. However, the plaintiff gave evidence that she was dissatisfied with Dr Sathianathan's treatment and failure for her to offer other treatment options and so she went to another general practitioner, Dr Martin, in August 2021. The doctor's notes at that time refer to ongoing chronic pain, triggered with certain pain activities such as if she washed her hair.[8]
8. It was noted that she was getting daily pain, particularly if it was aggravated with movement. A further MRI was diagnostic for mild subacromial bursitis.[9] This led Dr Martin to refer her to an orthopaedic specialist, Mr Moaveni. He saw her in October 2021.[10] He looked at the scan and considered that it showed some bursitis and ultimately, suggested that she have a cortisone injection. This was conducted in November 2021.[11] The cortisone injection had some brief remedial effect, however, he organised a further MRI and on the basis of that and recommended a second cortisone injection into the shoulder.[12]
9. It should be noted that ultimately, Mr Moaveni diagnosed her with subacromial bursitis. He also referred her on to another orthopaedic surgeon, Professor Patel, I should say, and he saw her in August 2022.[13] It is relevant to note that on clinical examination, Professor Patel found a range of limitations of movement in the shoulder, which resulted in pain. Those findings I consider to be quite significant because it revealed on clinical examination that there was ongoing limitation of movement in the left shoulder.
10. He recommended a further steroid injection and this was conducted in September 2022. He also referred her back to Mr Moaveni. That further referral resulted in a referral then to a pain management specialist. That pain management specialist was Dr Slon who she saw in February 2024.
11. Before coming to that, it is relevant to note that during this period that the plaintiff continued to work full time, however, she had ceased work after the birth of her daughter in August 2023. On attendance with Dr Slon, he prescribed for her ongoing pain a number of prescription medications, Celecoxib and Meloxicam.[14] Her treating doctor at that stage, Dr Scoles, sought funding for ongoing physiotherapy treatment, and she commenced such physiotherapy treatment with Mr Davis whose treatment she self-funded. On examination by him in September 2024, he considered that she was struggling with the left arm on load and had not had much change in her condition for some years.
12. She was referred by Dr Scoles then on to another pain specialist, Dr Rajiv Chawla, who she saw in December 2024, and recommended a nerve block injection. That nerve block injection has not been completed. Currently, she remains in home duties, as a primary carer for her child who is about 20 months, and in addition she works in the family business which is an electrical contracting business run by her husband. Her role is an administrative one and she works there for 25 to 30 hours per week.
13. Due to a downturn in that business, however, she gave evidence that she is looking for other work in administration and clerical roles. Turning from the chronology, then, to the first attack that the defendant made upon the plaintiff's case, that was in respect of the reliability of the plaintiff's evidence. The defendant attacked the plaintiff's reliability on three grounds: first, that her evidence on affidavit and in cross-examination was inconsistent with film shown in court; second, that her social media accounts were inconsistent with her claimed restrictions; and, third, that her claimed restrictions were contradicted by findings of (a), Dr Ingram[15] as to having a normal social life; (b), Associate Professor ("AP") Doherty[16] as to full-time work capacity and having a normal social life; (c), Mr Slattery[17] as to full-time work capacity; and (d), Dr Joshi[18] as having normal activities.
14. Starting with the first point - and that is the film - it was admitted that of 15.5 hours of surveillance taken, only 4 minutes and 45 seconds of film was played in court. Immediately it can be seen that this is an incredibly small window into the plaintiff's life. The footage was taken over one day in which the plaintiff was preparing for her first baby shower. That was a unique occasion which I consider was unlikely to be a true representation of her daily life.
15. While she visited stores, bought things, including a bain-marie, largely I consider that the video showed her behaving consistently with her evidence. For example, she deposed to being able to drive and shop. Similarly, it was never suggested she could not reach up on occasion which is what she does on one occasion as seen in the film. There was some inconsistency in the evidence the plaintiff gave in cross-examination and on affidavit of getting pain when lifting a kettle. See also the recording of this of Dr Scoles[19].
16. In contrast, the film shows her lifting a bain-marie which weighs 12 kilograms. However, in re-examination she stated that while she was able to lift it, it was the same weight as her child who's now aged 20 months and so was within her capacity, though it caused pain. When questioned as to why she did not get a store assistant to help, she explained that was because she was buying two bain-maries and the store assistant had to locate the other one.
17. She went further, though, and explained that she wanted to assert some independence by being able to carry the bain-marie to the counter. Given the weight of the bain-marie is so similar to her child, who she had admitted lifting and carrying in her affidavit and to doctors, I do not think much turns on this alleged inconsistency. A further aspect of the video said to show inconsistency is the plaintiff carrying a bag of shopping in her left arm.
18. Given there is no evidence of the weight of the bag, and the plaintiff's evidence was that lifting anything heavy in the left arm was problematic, there is nothing inconsistent that can be said to arise from this portion of the film.[20] Otherwise, the ability to shop, drive and carry shown on film was largely consistent with the plaintiff's evidence and that recorded by doctors.
19. Turning to the defendant's second point, the alleged inconsistency between social media and her claimed limitations, I do not accept the defendant's submission. The social media snapshots showed the plaintiff in a range of setting, social functions, eating with family, camping and enjoying recreational activities with her friends. She disclosed all these matters in her affidavit material. As to camping[21]; as to social activities[22]; and holidays.[23]
20. Third, the defendant pointed to recordings by doctors as to her capacity set against her claimed limitations. This was said to arise from Dr Ingram's recording of her having a 'normal social life'[24] and similarly to AP Doherty.[25] However, when read in its entirety, Dr Ingram's report also noted that she could not do activities she might have done and was restricted in doing certain things.[26]
21. Certainly, when it was put to the plaintiff she denied that she had a normal social life; rather, that she had just gone on as best she could, but had limitations. The same result obtains when all of AP Doherty's report is examined comprehensively.[27] Next was Mr Slattery's report[28] and AP Doherty's report[29] who had a history of capacity for full-time work. The plaintiff gave evidence that she did not work full-time at the time when she was examined by both these doctors, and she had never said this to either of those doctors.
22. I consider her evidence on this point has a ring of truth because at the time of the reporting to both doctors she was the full-time carer for her daughter who had not yet gone into child care. It seems to me clear that she could not work full-time and care for her daughter full-time. I accept the plaintiff's evidence on this point and do not accept that there is any inconsistency.
23. Then I come to the plaintiff's evidence in court. She gave evidence in a straightforward way, I consider. It was said she introduced evidence to suit her claim, such as the notion of having good days and bad days; however, her affidavit deposes to - "virtually constant pain, worse with activity".[30] She deposed to having on occasion worsening pain which is "particularly bad".[31]
24. I consider the plaintiff was essentially communicating that there are times when her condition is worse than others. This is not much different to evidence of having good days and bad days, then. Overall, I consider she was a truthful and reliable witness. Turning, then, to an assessment of her impairment consequences and, of course, this requires an assessment of her retained capacities. I accept that since late 2018 she has been almost continually employed, save for her maternity leave.
25. In particular, this was work of 30 to 40 hours per week at Adairs in a customer service role. Since the date of injury, she has met and married and had one child. She works in the family business now 25 to 30 hours per week. She has been able to attend numerous social events and go on holidays, on some involving camping. She is otherwise the primary carer for her young daughter which is a physically demanding occupation where she has to lift and carry the child and pram.
26. She does most domestic tasks and all of her personal care activities. However, this is also in the context where since 2017 she has had almost constant left shoulder pain and limitations of movement. That this is the case I find is borne out by the following matters:

a) Physiotherapy treatment from late 2016 for at least one year and perhaps 18 months. The range of motion question revealed a decrease in her range of motion in the early assessment.[32] > > b) Ongoing pain and decreased range of motion such that her treating doctor ordered MRI on a history of persisting pain and recorded that such pain was 'severe'.[33] This was a year later. > > c) Despite a gap in treatment from 2018 to 2021, on return to her treating doctor she complained of chronic pain triggered with activities which support a finding of the permanent nature of the problem and, as the doctor recorded, impact on her daily activities such as washing her hair, and required medication.[34] This supports a finding of longstanding pain and effect on range of motion. > > d) So problematic was the condition that referral to a specialist orthopaedic surgeon was made. He saw her on some eight occasions and prescribed two cortisone injections, though she ultimately had three. He diagnosed the condition which I accept as subacromial bursitis.[35] This is supported by the radiology,[36] and also the other treating specialist Professor Patel. > > e) Professor Patel found a consistent decrease on range of motion on clinical examination and took a history of chronic pain.[37] This is important independent treating evidence from a specialist. > > f) The chronicity of the problem led to referrals to another orthopaedic specialist Professor Patel and a pain specialist Dr Slon, and more recently, Dr Chawla, who found the need to prescribe strong pain medication or recommend nerve blocks as Dr Chawla has. This level of specialist investigation reveals a real depth to the condition and the pain it produces and the limitations it causes her. > > g) This is supported by her ongoing need for treatment via physiotherapy with Mr Davis,[38] and seeing her treating doctor Dr Scoles,[39] and a further referral to the pain specialist who I have mentioned.[40] This brief review of her treatment course, particularly since 2021, supports my acceptance of her evidence that she has constant pain requiring at least two Nurofen and two Panadol per day and one Norflex tablet at night for sleep purposes.

27. I consider that will be required for the foreseeable future and is her permanent condition. This is so because her treatment course has been long to date and it acts as a good guide to the future before her. I also accept that on occasion she will require stronger pain medication either by nerve block or by such medications as Endone or Meloxicam which have previously been prescribed to her. She is reluctant to take these medications, but the fact that she has been prescribed them speaks to the severity of her pain.
28. I accept that her sleep has been disrupted by her shoulder pain as she has deposed and recorded by doctors.[41] I accept this affects her mood and on her evidence makes her irritable. I accept that this is almost a daily occurrence. I accept that the injury causes a limitation in her range of motion,[42] which are recordings by her treating doctors and specialists, and I also accept her evidence on this.
29. Dealing with the medico-legal evidence, the defendant primarily relied on the orthopaedic opinion of Dr Joshi and AP Buzzard. AP Buzzard reported in 2019. This is some six years ago and prior to the MRI and injections. It is largely irrelevant because it does not consider these matters in the present setting, so I have put it aside. As for Dr Joshi, he saw her twice in 2023 and 2024. He opines that she has no diagnosable condition but a painful left shoulder.
30. He did not make a finding of any abnormal illness behaviour other than to say that there are inconsistencies as the pain is nonspecific.[43] However, I do not accept his opinion because it is in contrast to Mr Moaveni. Mr Moaveni is the long-term treating specialist. He has seen her in a clinical therapeutic setting focused on treatment and not for medico-legal purposes. This gives him a degree of independence which Dr Joshi does not have.
31. His opinion is also based on the radiology which reported subacromial bursitis,[44] which Mr Moaveni considered in conjunction with the history he was taking across eight examinations, his clinical examinations, and the reporting of symptoms, particularly after and contemporaneously with her pain and the way it responded to the various cortisone injections.[45] This is a comprehensive opinion as to her diagnosis and her ongoing symptomatology. I consider his recordings of her pain and symptoms to be accurate therefore.
32. A further reason to favour that opinion over that of Dr Joshi is the reporting of Professor Patel,[46] and Mr Slattery.[47] At clinical examination and on testing, they found positive signs for subacromial symptomatology,[48] which Mr Slattery, after consideration of historical material from the treating doctor and other medico-legal practitioners, assesses and which he considered supported a diagnosis of subacromial bursitis with ongoing pain.[49]
33. Dr Brasier came to a similar conclusion of chronic supraspinatus and infraspinatus tendinosis in the left shoulder.[50] However, given his speciality as an occupational physician, I prefer Mr Moaveni and Mr Slattery's opinion. Importantly, however, Mr Slattery recorded that the shoulder injury was a cause of significant pain and limitation of movement in the left shoulder.[51] While Professor Patel's opinion is much briefer, it largely supports Mr Moaveni's opinion.
34. As to her pain level, I accept that it is often at the level of eight to nine out of 10, Dr Brasier[52], and Mr Slattery.[53] It has a burning or stabbing quality. It is constant, though may lessen and worsen at times. As recorded, she takes four tablets during the day to cope and Norflex at night to help with her sleep while in pain.[54] She can perform all activities of daily living and personal care with some difficulty, for example, raising her dominant left arm overhead to wash her hair or do up her bra. These things cause her difficulty but she does try to persist with them.
35. She spoke poignantly and with real emotion about being unable to breastfeed on the left side. I accept this is a transitory impairment consequence as the child will grow and that I must focus on those consequences which are permanent, but this stands as an example of a terribly important basic human function, the significance of which is not truly appreciated until it is lost. Similar permanent impairment consequences are now occurring with having to lift and carry a toddler into the bath, pram, high chair and baby seat.
36. She and her husband plan to have other children, so these problems will certainly persist for the foreseeable future; see Mr Spiteri's affidavit which supports this finding and that of Ms Emily Modaffari.[55] As to her plans with her husband to have further children, however, both of them depose to the fact that the left injury causes difficulty because their intimate life is affected by the pain and limitation in the range of motion.
37. Mr Spiteri's affidavit evidence confirms the plaintiff's evidence on this point, and I accept that this is a significant impairment for a young person and a young couple. Around the home, she is restricted in the heavier household tasks such as mopping, vacuuming and scrubbing the shower.[56] I accept that she is also restricted in her baking, knitting and gardening activities as she deposed which were particular passions for her.
38. These findings are supported by recordings made by her physiotherapist Mr Davis,[57] and the notes of her treating doctor Dr Scoles in seeking further physiotherapy and pain management treatment for her.[58] It is also supported by Dr Brasier's finding on examination, as a result of which he considered her occupational opportunities were curtailed by reason of her left shoulder injury. It is also relevant to note that the plaintiff was just 22 of the date of injury. She has lived with the constant pain and limitation of movement, I have found, for eight years.
39. This is already a long period to endure. However, she is now only 31, and ahead lies a long future of unrelenting pain, limited range of motion and the impairment consequences I have found. The time she has to endure these matters is a factor that I also bring to bear. I consider the above matters are sufficient to demonstrate the plaintiff has sustained an injury with permanent impairment consequences that are more than significant or marked.
40. It was also put that she had been a person who had manual skills which now could not be utilised in the labour market and this decreased capacity was an impairment consequences that ought weigh on the scales. I would reject that argument because the chronology reveals the plaintiff had clearly left such manual work well behind her by 2016 and even more so as of 2025.
41. Balancing all these matters, including the retained capacities with the impairment consequences I have found, I will make a determination that the plaintiff has sustained a serious injury in the motor vehicle accident on 25 October 2016 involving her left shoulder injury.

[21] PCB 15 at paragraph [58], PCB 24 at paragraph [43]

[22] PCB 28 at paragraph [66], PCB 29 at paragraph [68], PCB 29 at paragraph [72]

[44] PCB 58, PCB 60, PCB 62