IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
Serious Injury List

Case No. CI-23-00811

ASHLEIGH MACKINNON	Plaintiff	
		
v		
		
VICTORIAN WORKCOVER AUTHORITY	Defendant	

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JUDGE:	HER HONOUR JUDGE CLAYTON	
WHERE HELD:	Melbourne	
DATE OF HEARING:	19 May 2025	
DATE OF RULING:	23 May 2025	
CASE MAY BE CITED AS:	Mackinnon v VWA	
MEDIUM NEUTRAL CITATION:	[2025] VCC 639		

EX TEMPORE 
REASONS FOR JUDGMENT
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Catchwords: 	Serious injury application – shoulder injury – pain and suffering – loss of enjoyment of life consequences – credit – physical injury – loss of earning capacity – leave to bring common law proceedings

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr B. Johnson	Slater & Gordon	
			
For the Defendant	Mr T. Storey	Wisewould Mahony	

HER HONOUR:
1	The plaintiff seeks leave to issue proceedings for the recovery of damages at common law pursuant to s.327 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”), on the basis that she has injuries to her right shoulder that meet the definition of serious injury under s.325 of the Act.  
2	To be granted that leave she must establish that the pain and suffering, and loss of enjoyment of life consequences, when judged by comparison with other cases in the range of possible impairments or losses, may be fairly described as being more than significant or marked and being at least very considerable.  The plaintiff makes no claim for loss of earning capacity.
3	The issues in this case are:
(a)	whether the plaintiff's credit has been impugned, such that her evidence is unreliable; and 
(b)	whether the consequences I am satisfied are proved to arise from the claimed injury, meet the test.  
Background
4	Ms Mackinnon is currently 35 years old.  She has two children.  She moved with her partner to Australia from the United Kingdom in 2012.  She was born profoundly deaf in both ears and she relies on visual and tactile notification and visual communication.  She has cochlear implants and uses a sound processor to amplify sounds for environmental safety and lip reading, but these are unreliable and her primary mode of communication is Auslan.  She gave evidence at the hearing through two Auslan interpreters.
5	In March 2015 she had low back pain when helping a client into a wheelchair at work and she had physiotherapy with a physiotherapist, Hesham Azer.  Details of that are reported in her affidavit at plaintiff’s court book 20.  
6	She was in a motor vehicle accident in December 2018, when a car hit her from behind and she suffered neck and upper back pain.  She went to the general practitioner at that time, but says that that pain resolved.  
The circumstances of the claimed injury
7	Ms Mackinnon was working as a picker and packer for a relatively short period of about eight weeks.  During this work she says she had to undertake repetitive manual handling tasks, including lifting weights of up to 30 kilograms.  
8	In May 2020 she had the onset of severe pain in her right shoulder.  She attended Warringal Hospital by ambulance.  The notes record four weeks of increasing right neck and arm pain.  She was noted to have started a factory job eight weeks ago, performing repetitive manual handling.
9	In July 2020 she had an ultrasound, the report of which is at plaintiff’s court book 840, which recorded features of impingement on adduction, but with no tear.  The treating doctor has subsequently described a bursal injury with impingement that has persisted for five years and has not resolved.  I note that there is no real contention about the injury, and that the defendant's medico-legal reports support a diagnosis of impingement syndrome and bursitis. 
10	She has had physiotherapy.  In August 2020 she had an injection into the right shoulder which provided some pain relief for a period of about five months.  In October 2023 she had a repeat injection into the shoulder which provided no pain relief.  She has seen her general practitioner for treatment periodically throughout the period since her injury. I note the reports from the general practitioner dated October 2022 and May 2025.  
11	Her main treatment has been provided by Dr Kemble Wang, her orthopaedic surgeon.  He has provided a report of 1 August 2023.  That begins at plaintiff’s court book 859.  He said that surgery could be considered, and that surgery would be an arthroscopic procedure decompressing the subacromial space and removing the inflamed bursa, with or without a biceps tenodesis to treat a subluxating biceps tendon.  He notes that, given the longstanding nature of her pain, which is unusual in a case of impingement, he considered her prognosis to be guarded.  
12	I note here that Mr Wang has a history in a number of his reports, that Ms MacKinnon’s shoulder problem arose in the context of pushing clients in wheelchairs.  He was subsequently informed that her instructions were that she had in fact sustained her injury whilst performing duties that involved picking, packing, unpacking, lifting and moving boxes of varying heavy weights.  
13	He opined that, given the temporal onset of her symptoms in relation to her employment and the description of lifting and moving bags containing heavy weights, it is probable and likely that her employment contributed to the causation of her injury.  He opined that repeated heavy lifting at the shoulder can lead to subacromial impingement bursitis and biceps tendinitis.  
14	In terms of other treatment Ms Mackinnon has had physiotherapy with Rhiannon Pigdon, and pain management.  
15	An MRI has been suggested for a more complete and accurate picture of the shoulder.  Because Ms Mackinnon has bilateral cochlear implants she cannot undergo an MRI.  Although an MRI would assist in a diagnosis, and there has been a question raised as to whether she has experienced a labral tear, an MRI would require her to have a cochlear implant removal before undertaking that procedure.  Quite reasonably she is not prepared to undergo cochlear implant removal.
16	She has been assessed for the suitability of a shoulder brace from an orthotist, and has also required taping for her shoulder.  
17	In short, the claimed injury is a right upper limb injury comprising of bursitis and impingement in the right non-dominant shoulder.  It is not contested that that is the injury and it is not contested that it was caused by her work.  
Credit
18	A significant attack was made on the reliability of the plaintiff's evidence.  The defendant submitted that her descriptions of pain were inconsistent and unclear, and her description of activities that provoked pain was also inconsistent.  The defendant submitted that she is the only person who can give evidence about the pain that she experiences.  
19	The defendant submitted that, from the outset of the cross-examination, questions that were put about the nature of the pain and the severity of the pain were answered fairly unequivocally, that is, “all” activities and “all” actions involving right arm use brought on right arm pain, including whether something was heavy or light, reaching forward, carrying, lifting an object, and certainly when reaching overhead for any type of activity.
20	The plaintiff agreed in cross-examination that, for example, lifting, rotating and carrying would cause her a sharp spike of pain, up to 8 out of 10 in severity.  That was unqualified evidence in that she said it always happens and that the pain can last for days.  
21	She gave evidence that it was not worth risking using her right arm in this way because she would anticipate that it would provoke that kind of pain, and so her evidence under cross-examination was that she avoids using her right arm and that that had been the case since the onset of pain in her right arm.  When asked about, for example, something like reaching overhead for a coffee cup in a cupboard, she said that she would not do that, she would use her left arm because she would know that using her right arm would bring on the pain.  She agreed that applied to anything around the house, shopping, errands and dealing with the children.  She said she had to be very careful about how she moved her right arm, and said, "I always have to be thinking and cautious."
22	The defendant submits that her evidence in this regard is in contrast to what was shown on the video surveillance footage.  The defendant submits that the footage did not show her to be in any obvious pain.  
23	In relation to the first bit of film which showed the plaintiff leaving in the morning from her garage, opening the garage, getting the children into the car, the plaintiff said she was in pain, but was putting up with it.  The defendant said I should not accept that evidence as any reasonable viewing of the film strongly suggests that the sort of incidental activities shown on the film suggest that the plaintiff is not in pain, does not have restrictions in the right upper limb, and that there is no need for her to avoid using her right arm, and to favour her left side.  
24	There was later film from April 2025, which showed the plaintiff entering a shopping centre carrying a bag with her right hand, and using her right arm for almost an hour.  As the shopping trip went on more bags were added to the right arm.  There was a period where she stood with a bag in the crook of her elbow and a bag near her wrist while holding her phone.  The defendant said her explanation for that was inconsistent with her evidence that she avoids right arm activity and tries not to lift.  
25	The defendant submits that her ability to carry three bags on her right arm might be unremarkable, but given the way that she described the level of disability in her affidavit material, and her affirmation of that level of disability in court, it was very surprising to see her carrying those bags at the shopping centre.  She also agreed initially with a proposition that the bags were heavy, but later when that issue was questioned in re-examination she said that the bags were full only of plush toys weighing maybe 3 kilograms.  The defendant says that the way that the evidence came out would lead to a conclusion that she was trying to minimise the effect of the surveillance evidence.
26	The defendant also pointed to her evidence in her affidavit about her attempts to run 10 kilometres, which created the strong impression from that affidavit material that she was unable to do so, but in fact she had completed a 10 kilometre run last year and finished in the top 20 per cent of her age group.  
27	The defendant also points to the absence of other objective evidence to support the plaintiff's evidence, in particular, the degree to which she says her life is restricted, and that she relies on her partner to take up the slack.  The defendant says this is a circumstance in which the court would reasonably expect to hear something from the partner.
28	The plaintiff's submissions on her credit were that she was direct and frank.  She made appropriate concessions.  She did not embellish.  In relation to the 10-kilometre run aspect she said that the affidavit was clearly referring to the half marathon and also pointed to her evidence that she had only run the 10 kilometres on one occasion, and that she had pulled up poorly afterwards with pain.
29	She said that in pain management she had been told that she needed to accept what she could and could not do, and that has caused her to reduce her goals.  Although she had run 10 kilometres she has not done that since that single occasion.
30	The primary attack on the plaintiff's credit was in relation to her description of pain as exaggerated.  The plaintiff said that the footage seen was a small selection of film, and that even though the second lot of film spanned an hour, the entirety of the hour was not filmed and not seen by the court.  
31	Where the footage showed her opening the garage door, her evidence was that that did not require any force.  In relation to her being able to pick up school bags, there was no basis upon which to conclude that the school bags were heavy.  That the plaintiff submitted that she used both hands to close the boot of the car, and that if she were unrestricted in the use of her right arm there would have been no need to do so.  
32	The plaintiff also submits that she needed to keep her left hand free to sign, as this is her mode of communicating, and therefore it was entirely understandable that she would carry the bags and other items predominantly in her right hand while at the shopping centre.
33	The plaintiff also said that the footage does not show the pain that she is in.  She keeps a straight face.  She does not dwell on the pain because she has to continue her day-to-day life as much as she can.  When she was in the supermarket or the shopping centre, although she was using her right arm she was keeping it close to her body in a stable position and she was not lifting it up and down.  
34	She rejected the proposition that she was using her arm freely.  She conceded that she was using it, but said it was not unrestricted, and said that on the particular day in question that was not a bad day for her.  She said that she did have good and bad days, that it did vary.  She remembered on that day that her shoulder was aching, but that was normal, but that she did not necessarily get the sharp provoked 8 out of 10 pain which can last for days.  
35	She said that when not using her right arm the pain is tolerable, but when she uses it, it tends to increase.  She submitted that the awkward gait that the defendant had said suggested that the bags she was carrying in the shopping centre were very heavy could also be caused by the volume of material contained within the bag, being the plush toys, making them awkward rather than heavy.
My findings on credit
36	Even from the otherwise innocuous footage it was clear that the plaintiff's evidence, both in her affidavit and her oral evidence, was not entirely consistent with what was shown in the footage.  The defendant submits that the footage was remarkable for how unremarkable it was, and I accept that submission to some extent.  
37	The footage shows a person getting on with her day in a typical and ordinary manner.  I do not consider the fact that she reaches up to both open and close the garage door with her right arm proves she has no pain.  However, the fact that she did this, when there was no particular reason to use her right arm, is somewhat telling.  It suggests she uses her right arm even for over arm activities, in a fairly natural everyday way, and this in turn suggests that doing those sorts of activities does not cause her 8 out of 10 pain which last for hours because if using her arm in that way did cause that sort of pain, it is hard to accept that she would use her right arm when she could use her left.
38	I accept that there are some things that a person, particularly a person with young children, just has to do, regardless of whether they cause pain, but this particular action is not one of them.  
39	I cannot say that the activity of reaching overhead with her right arm causes no pain, but I am not satisfied that it causes the level of pain the plaintiff describes.  
40	The later film from April 2025 showed the plaintiff entering the shopping centre carrying a bag only on her right arm, and using the right arm for almost an hour, with more bags being added through the trip, eventually also holding her phone in her right arm.  
41	I accept that there is a reason for the plaintiff to keep her left hand free, which is that she relies on a visual form of communication, and she uses primarily her left hand to sign.  This would be a reason she would be prepared to put up with a degree of pain, even an increased degree of pain.  However, if the pain were really severe, like 8 out of 10, or likely to last for hours and days, it is more likely than not that she would find a work-around, perhaps putting the bags down.  
42	There was some dispute about the weight of the bags and the positioning of her arm while holding the bags.  To my observation the arm was not, at all times, close to the body.  There was at least a time where it was held out in front while she was holding the phone.  There was also some movement in the arm, albeit not overhead reaching.  
43	I could not determine how heavy the bags were; however, I am satisfied that the footage supports a conclusion that the degree of pain attested to by the plaintiff, and the sorts of activities that are provoked by the pain, were somewhat exaggerated.  
44	The plaintiff, upon questioning by me, said that sometimes activities such as reaching overhead did not provoke pain, and that the pain could be provoked but did not always last for days or even hours.  Perhaps unintentionally, her evidence about what provoked pain rather exaggerated the degree and circumstances in which that sharper, more severe, pain occurs.  
45	I accept that her affidavit did create the impression that she was unable to run 10 kilometres when she had done so.  She said, this is in her affidavit:
46	"I recently signed up for a half marathon but didn't attempt it due to the pain in my right shoulder.  I wanted to train, running up to 10 kilometres, but had to keep cancelling training due to the pain I would experience the following day in my right shoulder, and this was frustrating and upsetting for me."
47	This may, as the defendant says, be a deliberate attempt to exaggerate restrictions on her ability to run, or it may be a poorly worded affidavit, that is, she might have been trying to express that training for the marathon by running up to 10 kilometres had not been possible because she had to keep cancelling.  On the somewhat unclear wording of the affidavit I am not prepared to draw an adverse inference that the plaintiff was deliberately attempting to mislead the court.
48	I note here that there is an absence of other objective evidence to support the claim in relation to the limitations she experiences, in particular, her evidence that her partner has had to pick up the slack in those areas where she cannot perform the sorts of tasks she ordinarily would.  I note here that this application is a gateway provision only, and I am loathe to encourage any practice which would tend to unnecessarily lengthen or further complicate these matters.  However this is a case where one might have expected an affidavit from a partner setting out that person's observations of the restrictions to which the plaintiff attests, and the activities of daily living and house duties that are no longer possible.
49	A lack of corroborative evidence means the concerns I have about the plaintiff's evidence of the degree of pain, and the degree of impairment caused by the injury, are not alleviated by another source of evidence.  Overall, the video evidence, which I accept is only a small snapshot in time, does cause me to consider that there is a degree of exaggeration in the plaintiff's account of her pain, which in turn causes me to examine more carefully her evidence about what she can and cannot do.  It does not cause me to disregard her evidence entirely, or to conclude that her evidence is wholly unreliable.  
Did the work cause the injury?
50	There is no dispute that the work caused the impairment.  The reports from treaters, the radiology and the symptoms she complains of, are all consistent with an impingement injury and bursitis.  I note that her injury became acute whilst at work and required her to be taken to hospital by ambulance.
What are the consequences of the injury?  
Pain
51	The primary consequence claimed is pain, which she describes as a constant daily dull ache of 2 to 3 out of 10 in severity, which is always there, and has never not been there since the time of her injury.  She claims a significantly increased pain in her shoulder of 8 out of 10 severity, which can last for hours or days, and is worse the more use she makes of her arm.  She describes a clicking sensation on certain movements that is accompanied by sharp pain.  
52	As the years have progressed, it was put to her, that her pain generally has improved over time and that it was not as bad as it was when it first started.  She said, "Now I feel I can manage it more.  It's like control.  If something causes me pain, to stop doing, and accept the pain, but the pain itself certainly hasn't improved."  
53	She says she is never pain free, and maybe three times a week gets that sharp 8 out of 10 pain which lasts a few hours, at minimum, and sometimes longer.  Her main restriction with her right arm is using it overhead, and the most important thing to manage her pain is not to use her right arm overhead.  
Medication
54	55	In terms of medication, she is on a medication called Anadin, from the United Kingdom, which I understand is a combination of Ibuprofen and paracetamol.  She says she uses it a couple of times a week.  She uses it as a last resort because she does not want to take too much medication.  She says she sometimes uses it less than a couple of times week because the tablets do not really fix the pain.
Activities of daily living
55	She says she is more restricted in vacuuming, cleaning, cooking and changing beds.  She says that she has no choice about doing those tasks.  She has to do those things.  She cannot always rely on her partner or her children because who else is going to look after that house and the kids. She did not have additional supports in Australia.  
56	She has had difficulty with some aspects of dressing, particularly putting clothes over her head, or where she has to lift her right arm, but she has learnt how to get dressed in a way that uses primarily her left arm.  
Sleep
57	58	She says rolling onto her right side can cause increased pain and can disturb her sleep, and she estimates about two or three times a week, depending on what she has done during the day, that she has some impact during the night.  Sometimes it is even impossible to lie on her right side.  
Driving
58	She says she can drive a car, but does not feel comfortable driving long distances.  
Sport and fitness
59	61	In relation to other matters, she claims a significant consequence in her capacity to participate in golf.  She said she loved playing golf and she has not returned to that at all.  She did try, but she said it did not suit her using her shoulder, and she gave up playing golf in her club, and also gave up being a member of the committee.  She said the last time that she tried to play was perhaps four years ago, and she realised that she could not continue with it because she would need to utilise both her arms and she cannot use a full swing.  She said she used to play most weekends.  She said her golf group recently went to Queensland, but she was not able to be involved.  She misses that aspect of her life, especially as there are now more female deaf golfers.  She said she would like to continue with her standing in those competitions, and described it as not a nice feeling, especially at her relatively young age.
60	She described playing golf with her partner, even after they had kids, as their "dating schedule" and something they did every weekend.  She says her partner still plays, but she cannot.  She would have liked to teach her children, but cannot do that.
61	She says exercise and fitness is her passion.  Her right shoulder makes exercise more difficult, including going to the gym.  She said she has now stopped going because she is always in pain, and did not feel it was worthwhile paying a membership when she was in too much pain to go.  
62	She said that running is difficult due to pain.  Although she ran the 10 kilometres in the Melbourne Marathon last year, and that she made a good time, finishing in the top 20 per cent of her age group, she said she only managed to do the one 10 kilometre run last year.  She said last weekend she was meant to do the Mother's Day Classic, which is 14 kilometres, but she had to cancel.  
63	She said running is something she would like to do three times a week.  She tries to do it at least once a week.  What stops her from running more is the pain.  
64	Through the pain management clinic she says she has learnt that if she tries something and gets to a point where the pain is too much, she needs to step back and rebuild up to that point again.  So in order to run further she would have to step back and take it lightly for a while.  She says she does as much as she can.  She said that the pain management program taught her that she needed to accept what she could and could not do.  As a result of that she has reduced her goals.  
65	She said that swimming was a passion for her and she used to swim 54 laps in the morning before work, but now cannot swim at all.  
Social life and recreation
66	In terms of recreation, social life and holidays she accepted that she had been  on a trip to the United Kingdom, and also on a cruise in 2023 to Queensland, for eight nights, and another cruise in 2024 for 10 nights to South Pacific islands.
67	She said both the cruise trips were with her partner and her children, and that that involved being on the cruise-liner, getting off and exploring islands as they came to them.  She said her children and partner snorkelled, but she could not do that because she cannot swim.  It was put to her that she enjoyed those holidays in a free and unrestricted way, and she said there were a couple of days where she was quite emotional because she was in pain and she got frustrated and annoyed with her partner.  She said there were no activities on the cruises that she could participate in, so she just took the opportunity to be relaxed and have a free and relaxed experience, but she was still in pain.
68	She gave as examples of the sorts of restrictions she faced, the holiday to the United Kingdom, where she could not pull a suitcase at all, and she was very upset about that.  She said they had four suitcases and her partner had to pull all four, and she was at the airport and felt "are you serious", that she could not even manage to pull a suitcase, and said that she had a meltdown at the airport and became very upset.  That her daughter said, "I can help", and that was upsetting and stressful for her.  
69	She gave another example that on one of the cruises her daughter was very excited about indoor rock climbing, and that that was something that the plaintiff could not do with her, which before her injury she would have been able to.
The defendant's submissions on consequences.  
70	The defendant says I must look at both what she says and what she does about the pain.  She says that she is in pain all the time, but what she does about it discloses that there is very little treatment, currently no active treatment, and that she takes a Panadol type tablet, perhaps at most a couple of times a week, and there is no suggestion from any doctor that she requires anything more than that.  The fairly clear picture is that the plaintiff's degree of pain is at the very lesser end of the scale.
71	The defendant submits that, when considering what she has lost and retained, she has retained a considerable amount  She works fulltime.  She manages her children's activities.  She maintains robust exercise and was able to compete in a 10-kilometre run.  She drives, shops and travels.  She takes minimal medication.  She is involved in all the activities of a typical working parent.  The injury involves her non-dominant arm.
72	The defendant submits that, on the test, her consequences are not at the very serious end of the range, and notes that although the film is only a snapshot, it is a window on the plaintiff's ability to undertake the sorts of day-to-day tasks, and presents a true picture of how she can run her daily life and get on with things in an unencumbered, unrestricted and relatively pain-free way.
The plaintiff’s submissions on consequences  
73	The plaintiff says that the necessity for the ongoing medication several times a week is a factor I should consider when determining whether the consequences meet the test.  She has sleep that is interfered with, multiple times a week, and she has difficulty getting refreshing sleep.  She has restrictions on her domestic activities which are very significant for a young mother, and the level of play that she can engage in with her children is significantly impacted.  That this a consequence that has been going on for five years and is ongoing.  She has chronic shoulder pain, and a guarded prognosis because the pain has been the same for about five years.  
74	The plaintiff also submits that I should have regard to the clinical examination which shows restriction on the range of movement, and that no experts have suggested that there is any functional overlay or that there is any unwillingness by the plaintiff to participate in the examination or try to do her best on examination.  The plaintiff relies on the opinion of Mr Chehata, who diagnoses a restriction of her right shoulder movement, and of Mr Wang, the treating surgeon, who described and recommended surgery as a last resort to alleviate the pain.  The plaintiff submits that she is a stoic plaintiff of the kind that the Court of Appeal identified in Jarvie v Sideliner.
Findings on consequences
75	I am satisfied of the following consequences .  The plaintiff can no longer play golf.  She used to play most weekends.  She represented Victoria.  She really loved this.  She misses out now on the social aspects of this.  Recently her former team travelled interstate and she missed out on that because she cannot play. I accept she cannot play because she cannot use both arms to do a full swing.
76	The plaintiff can no longer swim.  She used to swim 54 laps of the Aquahub pool before work, and she misses this as an outlet, and this was a passion for her.  
77	I find that she can run, but that she runs less than she would, and that where her goal was to run a marathon, she has only been able to run 10 kilometres on one occasion.  She said, and I accept, that she had to cancel her 14-kilometre planned run in the Mother's Day Classic.  I accept her evidence that after the 10-kilometre run she was in increased pain on the following days.  
78	I accept that she is a person who previously exercised a great deal, who still maintains her fitness, but in different, and perhaps for her, less enjoyable ways.  
79	I accept that she is in a degree of daily pain, and I accept that she has a fairly constant dull ache, and that she can get a sharp pain on certain movements.  I am not persuaded that the sharp pain is provoked as readily and as frequently as she suggests in her affidavit material.  
80	I accept that active work with clients is likely to be more difficult because of the dull ache, and accept that in general, greater use of her right limb increases her pain.  She has restrictions on her work in that driving long distances causes her increased discomfort, and she does not have access to a heat pad during the drive.
81	Her home is about 45 minutes from her office, and she is currently able to work from home four days a week, but if this changes in the future that will likely present a degree of difficulty for her.  I accept that using a mouse and computer increases her shoulder pain.  
82	I accept that her activities of daily living are moderately curtailed.  Dressing, where it involves her putting up her right arm, overhead tasks such as hanging out washing, and heavier tasks such as changing beds and vacuuming are more difficult.  
83	I accept that there is some disturbance in her sleep, and that lying on her right shoulder may increase her pain.  
84	I accept that she cannot play with her children in a manner that might aggravate her right shoulder, for example, rock climbing on the cruise with her daughter, and I accept that this makes her sad and upset. 
85	I accept these consequences because the plaintiff has a physical injury identified on scans and by doctors of impingement and bursitis.  She has a restricted range of motion in the shoulder that is consistent with that injury.  On the balance of probabilities that injury is likely to cause pain, and the restricted range of movement and the pain limit her capacity to engage in activities like golf and swimming, and have had, and will likely have some impact on the employment that she can undertake at the moment and into the future.
Do the consequences for the plaintiff meet the test?
86	The defendant submits that having regard to the test and considering where this plaintiff falls within the range of cases, she must come at the very lower end of that range.  
87	I accept that this is a borderline case.  There has been minimal treatment.  There has been a somewhat successful attack on the reliability of the plaintiff's evidence about the severity and frequency of her pain.  The claimed consequences do not clearly fall within the description of consequences that would easily meet the test.
88	The factors that have caused me to conclude in this case, for this plaintiff, the consequences are more than significant or marked, to the extent of being at least very considerable, are:
(a)	her young age, she is only 35 years old.  She has been experiencing the consequences for five years and will continue, on the evidence, to experience the consequences.  I accept that the primary consequence is pain, and it is pain that is the cause of the other consequences.  Although her pain is not at the level of many of the cases that come before the court, and I do not accept that the experience of 8 out of 10 pain is invariably provoked by almost any use of the right arm, I have accepted that there is at least a daily dull constant ache which worsens in certain settings and on certain actions.  I accept that the experience of daily constant pain in a young person is a significant consequence;
(b)	 She has young children, and the type of injury she has, a shoulder injury, which is exacerbated by lifting and over arm use, is likely to continue to restrict the range of activities she can engage in with her children, including sport and other physical activities, for at least some time.  I accept that this is a very significant consequence for her;
(c)	Her former participation in golf, swimming and running on a very frequent basis, and to what appears to be a high level of performance, representing the State in golf, and swimming a significant distance before work each morning, golf and swimming are now entirely unavailable to her because of her injury.  While she still can run, her running ambitions are necessarily curtailed.  I am satisfied that these are significant consequences for her;
89	Having regard to the consequences that I am satisfied arise from the shoulder injury, and compared with the range of cases I am required to consider, I am satisfied that the plaintiff has sustained consequences that meet the test of at least very considerable.
90	  Accordingly, the plaintiff has leave to bring common law proceedings for pain and suffering.