Aubert v State of Victoria
[2014] VCC 2001
•5 December 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-00290
| NEIL AUBERT | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 October 2014 | |
DATE OF JUDGMENT: | 5 December 2014 | |
CASE MAY BE CITED AS: | Aubert v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2001 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – left shoulder injury – paragraph (a) of “serious injury” – pain and suffering only – relevant principles
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Hunter v Transport Accident Commission [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 13 VR 592; Sabo v George Western Foods [2009] VSCA 242; Stijepic v One Force Group Australia Pty Ltd & Anor [2009] VSCA 181; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted to the plaintiff to bring common law proceedings in respect of right shoulder injury suffered on or about 10 August 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A E Hill | Slater & Gordon Ltd |
| For the Defendant | Ms M Tsikaris | Lander & Rogers |
HIS HONOUR:
1 By way of Originating Motion dated 23 January 2013, Neil Aubert (“the plaintiff”) seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) to bring common law proceedings to recover damages for an injury to his right shoulder suffered by him during the course of his employment with the Victoria Police[1] (“the defendant”) on 10 August 2008 (“the injury”).
[1]Although the State of Victoria is pleaded as the defendant, I will refer to the Victoria Police as the defendant for present purposes.
2 The plaintiff seeks leave to bring proceedings in relation to the injury for “pain and suffering damages” only within the meaning of s134AB(37) the Act.
3 The plaintiff gave evidence and was cross-examined. Both parties tendered various documents.[2]
[2]Annexure A
Relevant legal principles
4 The Court must not give leave unless it is satisfied on the balance of probabilities, that “the injury” is a serious injury within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[3]
[3]Section s134AB(19)(a) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act which reads:
“Serious injury means—
(a) permanent serious impairment or loss of a body function … .”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the right shoulder.
7 In order to succeed, the plaintiff must prove on the balance of probabilities that:
(a)“the injury” suffered by him arose out of or due to the nature of his employment with the defendant on or after 24 October 1999;[4]
(b)“the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[5]
(c)the “consequences” of the injury in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function is “when judged by comparison with other cases in the range of possible impairments ... or disfigurements … may be, fairly described as being more than significant or marked, and as being at least very considerable”.[6]
Such requirement is sometimes referred to as the “narrative test”.
[4]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
[5]Barwon Spinners Pty Ltd & Ors v Podolak (op cit) at [33]
[6]Section 134AB(38)(b) and (c) of the Act
8 In determining the application, the Court:
(a)must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[7]
(b)must make the assessment of “serious injury” at the time the application is heard;[8]
(c)must give reasons that disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application;[9]
(d)notes that it has been asserted that the question of whether an injury satisfies the narrative test is largely a question of impression or value judgment.[10]
[7]Section 134AB(38)(h) of the Act
[8]Section 134AB(38)(j) of the Act
[9]See generally Hunter v Transport Accident Commission [2005] VSCA 1 at [23]–[36]
[10]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at [67]
The issues
9 Counsel for the defendant informed the Court there was no issue that the plaintiff suffered a compensable right shoulder injury giving rise to some organic impairment. The critical issue was whether any consequences of the impairment satisfied the narrative test – in this sense, counsel described the matter as essentially “a range case”.[11]
[11]Transcript (“T”) 3, L23-T4 L18
The evidence of the Plaintiff
10 The plaintiff gave evidence that he presently lives at Botanic Ridge (near Cranbourne South), and described his occupation as the station commander at the Mornington Police Station.
11 He gave evidence that his affidavits sworn on 10 September 2012,[12] 8 November 2013[13] and on 23 October 2014[14] were all true and correct.
[12]Exhibit A, Plaintiff’s Court Book (“PCB”) 4-9
[13]Exhibit A, PCB 10-13
[14]Exhibit A, PCB 14-17
12 I permitted the plaintiff to give some short further evidence in relation to his current situation. He gave evidence that he last played golf on 4 October 2014. When queried about his intentions with respect to golf, he stated:
“I have applied and been accepted as a director of the golf course. I have been playing golf since I was 11 so it has been part of my life for a long time. I decided that the pain that I suffer after a game of golf goes for approximately two days and it's my intention now that I am a director of the golf course who can have a say with what happens at the golf club, still meet and talk with all the people that I have met and live around the estate that I am going to give golf up.” [15]
[15]T8, L7-15
13 He purchased the land at Botanic Ridge approximately seven years ago, and when queried about what attracted him to purchase such land, he stated:
“There are a lot of things there. The space around with - the golf course itself, it has a gymnasium, a swimming pool and a golf course which were all things that I was interested in.”[16]
[16]T8, L18-22
14 Since 4 October 2014, he has been asked to play golf a number of times.
15 He described that the estate has a full-sized 50-metre swimming pool which is heated and indoors. He confirmed that he had swum all his life and had swum at the pool, even after an earlier injury to his left shoulder, but had not swum at the pool since the occurrence of the injury to his right shoulder.
16 By way of his first affidavit, the plaintiff gave the following pertinent evidence. He is a sixty-year-old[17] married man, who, on leaving secondary school, worked for one year as an assistant manager in the Coles supermarket in Bentleigh.
[17]Born August 1954
17 He then joined the Victoria Police, graduating from the Police Academy in 1973 and has been employed by the Victoria Police since then.
18 On 11 May 2002, the plaintiff injured his left shoulder when carrying out training in self-defence tactics at Hastings. He ultimately came under the care of the orthopaedic surgeon, Mr Nigel Broughton, who carried out an arthroscopic repair of his left shoulder on 26 September 2002.
19 After such surgery, the plaintiff continued to have difficulties with his left shoulder and was referred to another orthopaedic surgeon, Mr Tax Paximos, who specialises in shoulder, elbow and sports injuries. Mr Paximos arranged for a couple of hydrodilatations to be carried out on his left shoulder, and also physiotherapy was undertaken at the Langwarrin Sports Physiotherapy.
20 Following the left shoulder injury, he was off operational work for about nine months. On resuming work, he was able to carry out work without restriction, although he had some ongoing niggling pain in his left shoulder. He could also carry out his leisure and sporting activities without being restricted much with left shoulder pain.
21 He was involved in a motorcar accident in 1980 when he fractured his left wrist, which does not bother him now save that the left wrist “occasionally feels a little arthritic”. He was in a further car accident in 1989, after which he was hospitalised for a broken right leg, collapsed lung and broken ribs and was off work for about three months but “thereafter recovered well”.
22 He describes the circumstances of his injury to his right shoulder in the following terms:
“I was involved in an accident in the course of my work for Victoria Police at the Mornington Police Station on 10 August 2008. At that time my rank was Senior Sergeant. I was walking downstairs from the first floor to the ground floor when I tripped on a broken rubber non-slip strip edge on the stair. When I tripped this caused me to fall down a number of stairs onto the landing below. As I fell I reached out with my right hand and in doing so I suffered right shoulder pain.”[18]
[18]Exhibit A, PCB 6
23 After such injury, he continued to have right shoulder pain which caused him to attend his treating doctor, Dr George Maragoudakis, in Frankston, who performed various tests including an x-ray, ultrasound and an MRI scan.
24 Dr Maragoudakis referred the plaintiff back to the orthopaedic surgeon, Mr Nigel Broughton, who arranged for a cortico-steroid injection into the right shoulder and for physiotherapy treatment. Notwithstanding these treatments, he continued to suffer right shoulder pain and restriction of movement.
25 The plaintiff underwent arthroscopic surgery on the right shoulder by Mr Broughton on 12 March 2009, after which he continued to suffer from “right shoulder difficulties”. He again was prescribed physiotherapy from the Langwarrin Sports Physiotherapy and underwent a hydrodilatation in June 2009.
26 As at September 2012, the plaintiff complained of a constant ache in his right shoulder and a restricted range of movement in the shoulder which caused difficulties with dressing, such as putting on belts or t-shirts. When performing such activities, his shoulder was particularly painful. He found sleeping difficult and often suffered shoulder pain when he rolled onto his side and also tingling in his fingers of his right hand.
27 The plaintiff is right hand dominant. Since the injury, he has begun to get some pain in his left shoulder which he believes is a result of avoiding the use of his right arm as much as possible and using his left arm more. Such symptoms in his left shoulder are similar but not as severe as those in his right shoulder. He has also suffered some low-back pain from August 2008.
28 Again, as at September 2012, the plaintiff notes that although he has not seen Dr Maragoudakis for “a while”, he was taking approximately 25 to 30 Nurofen tablets a week. He notes that he is reluctant to take any stronger painkilling medication because he fears it may make him drowsy.
29 After the injury, he had a period of time off work, after which he carried out non-operational duties for a period until resuming normal duties in August 2009. In particular, he states:
“I find that because of the shoulder injuries I have to exercise more care in carrying out my work. I am now a little more alert and apprehensive about getting into confrontational situations where my shoulders could be injured further. Also, I had to be more careful in carrying out operational safety tactics training which has to be carried out every couple of months.”[19]
[19]See Exhibit A, PCB 8
30 As at September 2012, he lived with his wife and two of his three children. He notes that he did mow the lawns and carried out some gardening work, although the garden had been designed to minimise the amount of work required. He points out that it was difficult to perform tasks like removing the grass catcher, cleaning gutters, replacing broken tiles and painting, as these activities caused greater pain in his right shoulder.
31 Prior to August 2008, he enjoyed swimming on a “quite regular basis” and notes that he is a “good swimmer”. He describes himself as very limited in his capacity to swim and although there is a pool at the housing estate where he lives, such activity cannot be enjoyed.
32 Furthermore, he notes that he has played golf all his adult life and as a teenager was a trainee professional at the Victorian Golf Course and at the age of fifteen had a handicap of four. Leading up to the injury, he would play golf on a periodic basis. When he swore his first affidavit, he noted he was limited in his ability to play golf. He notes that his house is on a housing estate adjacent to a golf course and he would be playing golf more regularly if not for his “shoulder injury” and he had planned to play golf a lot more in his later years.
33 By way of his second affidavit (November 2013), the plaintiff notes that he continued to be “plagued by right shoulder pain” and also experienced pain in his left shoulder, as he tends to rely on the left shoulder more now. Furthermore, he could just raise his right arm above head height and could get his right arm above waist height behind his back.
34 His treating doctor, Dr George Maragoudakis, died about six weeks prior to swearing his second affidavit and as a result, he has attended a doctor at the Hall Road Clinic in Cranbourne about his right shoulder, although he notes that he has been told by the specialist and his previous doctor that there is “really not much that can be done for me”.
35 He continued to regularly take painkillers such as Panadol and Nurofen and would take at least one or two tablets most days. He also had available Codeine tablets but tended to avoid them unless the pain was particularly bad as they interfered with his decision-making when he was at work.
36 The severity of pain in his right shoulder tended to fluctuate according to how much physical activity he tried and as a result, he found himself limited in any repetitive or prolonged use of the right arm. He assisted his wife as best he could around the house and his son did the jobs that he could not do, like changing lights, cleaning gutters and pruning. He continued to have difficulty sleeping because, when he rolled on his right side, he woke in pain and struggled to get back to sleep – this occurred most nights. Furthermore, he continued to have difficulty dressing with certain movements.
37 In relation to his recreational pursuit of swimming, he states:
“I was an avid swimmer, as I have previously attested to. I have won many medals over my life for swimming. Before my right shoulder injury, I would swim three or four times a week and do about 30 laps. I now cannot roll my arm over to be able to do freestyle and cannot do breast stroke for any length of time due to increased pain. I cannot and do not do lap swimming now because of my right shoulder.”[20]
[20]Exhibit A, PCB 12
38 In respect of his recreational pursuit of golf, he asserts:
“I also have difficulty with playing golf. I have been an avid golfer my whole life and I expected to play a great deal in retirement. My handicap is now hovering around 18 or so. I had a handicap of 9 prior to my shoulder injury. When I play I usually manage to hit the ball down the middle of the fairway but with much less power as I cannot fully extend my shoulder. It is very frustrating for me to see my game deteriorate because of my shoulders.”[21]
[21]Exhibit A, PCB 12-13
39 His sexual relationship with his wife “changed enormously” as a result of his right shoulder injury which in turn has reduced the frequency of sexual contact.
40 By way of his latest affidavit (October 2014), the plaintiff asserts that he continues to suffer from “constant right shoulder pain” which fluctuates in severity depending on the activity that he undertakes. He considers that his right shoulder is “certainly now worse” than it was at the time of swearing his last affidavit. He continues to have pain in his left shoulder also as a result of favouring his left arm because of his right shoulder problems.
41 He has continued to have physiotherapy and massage to his right shoulder, and also in relation to his left shoulder, by Ms Chantelle McKenzie at the Peninsular Sports Medicine Group in Mornington. He sees Ms McKenzie about once per month and sometimes fortnightly if the pain is bad.
42 He notes that he rarely sees doctors as they have all said that he just has to manage his condition and treat any pain with pain medication. Although his previous general practitioner gave him five boxes of Panadeine Forte, he has stopped taking such tablets as he felt he was becoming too dependent on them. He tries to manage the pain with Panadol and Nurofen and such painkillers take the sharpness off the shoulder pain.
43 He describes that although at that time he was still playing some golf, such activity increased the pain and he suffered such increased pain for about two days. He notes that his golf swing is totally different and he tends to punch the ball now rather than striking it appropriately.
44 He confirms that he continues to have difficulty performing certain parts of his dressing, difficulties performing various physical activities around the house, and being awakened at night due to pain in his right shoulder. In particular, he states:
“I continue to wake at night due to pain. My sleeping has not improved at all since swearing my last affidavit. I wake most nights with pain in my right shoulder. If I roll over onto my right shoulder during the night, I wake immediately. I have trouble getting back to sleep and take medication if the pain is bad.”[22]
[22]Exhibit A, PCB 16
45 He continues to have limitation of movement of his right shoulder and in particular, struggles to get it above his head or around his back.
46 He has now given up swimming because it is just too difficult and too painful. He notes that when he was trying to swim he would pay for it afterwards with increased pain and stiffness. He continues to work operational duties and does this about three times a fortnight but makes sure that he has plenty of young, fit people around him before he goes out on these operational shifts. Furthermore, he continues to do operational safety training but finds this extremely difficult and any physical activity causes his shoulders to become “tight, stiff and painful”. Such training is a compulsory part of his duties as a station commander.
The radiology relied on by the plaintiff
47 The plaintiff relies on the following radiological reports:
(a)An ultrasound of the left shoulder dated 30 January 2003.[23] That report concludes:
[23]Exhibit B, PCB 18
“Features consistent with a partial thickness tear of the humeral surface of the supraspinatus tendon. Fluid surrounding the long head of biceps tendon may indicate tendonitis. Limited abduction of the glenohumeral joint which does not appear to be due to impingement. This may be due to adhesive capsulitis.”
(b) Left shoulder hydrodilatation dated 12 May 2003.[24] It is noted that distension during the hydrodilatation was limited to 20 ml by pain and capsular contraction;
[24]Exhibit B, PCB 19
(c) An MRI scan of the right shoulder undertaken on 30 October 2008.[25] Such report concluded:
“There are features suggesting a previous episode of anterior dislocation, now complicated by morphologic findings suggestive of adhesive capsulitis. There is a small rim rent tear in the infraspinatus tendon near the insertion site. There is mild tendinopathy of the supraspinatus tendon without definite full or partial tear identified.”[26]
[25]Exhibit B, PCB 20
[26]Exhibit B, PCB 20
The medical evidence
48 Prior to detailing the cross-examination of the plaintiff (which on occasion makes reference to some of the medical material), I consider it worthwhile setting out the medical evidence available in this matter.
49 The plaintiff relies on the medical reports, together with the medical notes from his now deceased general practitioner, Dr George Maragoudakis.[27] Dr Maragoudakis states that the plaintiff first consulted him in early October 2002, some five months after the plaintiff undergoing surgery by the orthopaedic surgeon, Mr Nigel Broughton, in respect of a left shoulder injury suffered at work on or about 11 May 2002. That injury was diagnosed to be a rupture of his left rotator cuff tendon.
[27]Exhibit C and Exhibit 8
50 Dr Maragoudakis described how the plaintiff initially complained of severe pain and his prescribed analgesia were ineffective. Dr Maragoudakis changed the analgesia which improved pain control and also arranged for the plaintiff to undergo intensive physiotherapy.
51 Dr Maragoudakis advises that the plaintiff “insisted” on returning to light duties by early March 2003 against his advice. Dr Maragoudakis notes that the plaintiff underwent a trial of hydrodilatation in early May 2003 which caused excruciating pain, requiring a few weeks off work. Furthermore, the plaintiff had a small procedure in October 2003 which further increased his range of movement and reduction in his restrictions. By March 2004, the plaintiff was back at work five days per week on modified duties and throughout that year, gradually improved his strength and range of movement.
52 Dr Maragoudakis states, in part:
“I last saw Neil on the March 15th 2005 with regards to his left shoulder when subjectively and objectively he had finally recovered a full range of movement. Power in the shoulder was probably in the order of 85 per cent and pain was minimal. He requested and was certified return to pre-injury duties.
I continued to see Neil over the next 3½ years for other health matters. There was the odd discussion regarding the status of his left shoulder. He stated that he had continued to work in full duties over this time and that his shoulder was predominantly about 90 per cent right with regards to power/range of movement/stability. He still, however, continued to suffer from intermittent pain/discomfort which required analgesia from time to time. He had ceased his physiotherapy in mid-2005.”[28]
[28]See Exhibit C, PCB 40
53 Dr Maragoudakis then notes that the plaintiff consulted him on 28 August 2008 complaining of a right shoulder injury which happened at work on or about 10 August 2008. Dr Maragoudakis noted at that time, that there was marked tenderness of the acromioclavicular joint, reduction of elevation/abduction to 75 per cent, reduced power and a normal neurological examination. He was referred for radiological examination. Dr Maragoudakis notes that the plaintiff “insisted on continuing to work” and was prescribed analgesia.
54 On examination some two weeks later, there was no improvement, although the x‑ray/ultrasound was reported as normal. An MRI scan was ordered and again, the plaintiff “insisted on continuing on normal duties despite severe pain”.
55 According to Dr Maragoudakis, the MRI scan undertaken on 30 October 2008[29] revealed evidence of dislocation, adhesive capsulitis and two probable tendon tears. He was referred back to the orthopaedic surgeon, Mr Nigel Broughton, who initially prescribed a cortisone injection and later performed surgery on the right shoulder.
[29]Exhibit B, PCB 20
56 When last seen in late 2009 for his right shoulder injury, Dr Maragoudakis noted that the plaintiff was progressing and was coping with normal duties despite ongoing pain and discomfort.
57 Dr Maragoudakis notes that although the plaintiff returned to pre-injury duties, he suffered from ongoing weakness and restriction (especially internal rotation) of the right shoulder. Furthermore, his work chores and home duties have been “moderately compromised”, as has been his golfing activities. He also has trouble sleeping because of pain.
58 The plaintiff also relies on the reports of Mr N Broughton, his treating orthopaedic surgeon.[30] Mr Broughton records that he first consulted with the plaintiff on 12 August 2002 in relation to a left shoulder injury. An ultrasound at that time revealed a partial thickness tear of the supraspinatus tendon and an x‑ray showed some degeneration of the acromioclavicular joint.
[30]Exhibit C, PCB 43-49
59 Surgery was undertaken on 26 September 2002 and that revealed a partial thickness tear of the acromial surface of the rotator cuff which was debrided, together with an arthroscopic subacromial decompression.
60 Mr Broughton initially saw the plaintiff on 16 December 2008 in relation to his right shoulder injury. On examination, there was restricted movement on the shoulder, tenderness over the biceps tendons and a positive Hawkins’ test.
61 Mr Broughton initially recommended a local anaesthetic and steroid injection into the subacromial space and to follow this up with physiotherapy. The plaintiff reported that he had some limited improvement for about six hours after the injection and then the pain returned back to normal.
62 Ultimately, he came to surgery on 12 March 2009 and Mr Broughton notes that although there was no evidence of tearing of the rotator cuff, there was extensive synovitis throughout the joint, particularly in the rotator cuff interval, which would be consistent with a diagnosis of adhesive capsulitis but not of instability. Mr Broughton performed a soft tissue release and released all the contractions within the shoulder.
63 When reviewed on 29 May 2009 (after some intervening physiotherapy), Mr Broughton noted that the plaintiff was struggling to get full movement back into his right shoulder. On examination of the right shoulder, flexion was to 140 degrees, abduction to 80 degrees, external rotation to 20 degrees and internal rotation thumb to L5. At that time, the plaintiff was recommended to have a hydrodilatation of the right shoulder and for him to continue with the physiotherapy and to come back for review if he had any ongoing symptoms.
64 Mr Broughton comments that the diagnosis of the plaintiff was a right shoulder adhesive capsulitis and “the prognosis for this is always uncertain but often improves to a point that they do get back to full movement and strength”.[31]
[31]Exhibit C, PCB 49
65 The plaintiff also relies on the medico‑legal reports of the orthopaedic surgeon, Mr J O’Brien, who examined the plaintiff on 23 April 2004,[32] 28 August 2013[33] and on 30 September 2014.[34] In his first report, Mr O’Brien assesses the then condition of the plaintiff’s left shoulder. He states:
“The patient now describes fairly mild disability in association with his shoulder, resulting in some restriction of activities. It is obvious the patient is capable of pursuing his full time occupation; however, some physical tasks remain painful and difficult, although these may indeed respond to further movement and relief of pain can be obtained. In fact I would suggest the next six months will see a stable situation reached, when assessment of any permanent impairment can be made.”[35]
[32]See Report dated 29 April 2004, Exhibit D, PCB 50
[33]See Report of same date, Exhibit D, PCB 53
[34]See Report of same date, Exhibit D, PCB 59
[35]Exhibit D, PCB 52
66 When seen on the second occasion, the plaintiff reported to Mr O’Brien that although he had some ongoing mild restriction of movement of the left shoulder, he was able to continue with his normal duties and general activities.
67 When seen in August 2013, the plaintiff gave Mr O’Brien a history of his right shoulder injury. The plaintiff described to Mr O’Brien constant right shoulder pain relating to the right side of his neck, the severity of which was described as 6 out of 10 on the Visual Analogue Scale. At that time, he reported intermittent pain in the left shoulder, the severity of which he stated was 3 out of 10 on the Visual Analogue Scale. At that time, physical examination of the right shoulder showed the presence of ongoing adhesive capsulitis with quite significant restriction of all shoulder movements. Mr O’Brien considered there were signs of similar pathology on the left, but nowhere as severe.
68 When seen on 30 September 2014, the plaintiff described ongoing right shoulder pain which is minimal when the shoulder is at rest but the severity of pain on aggravation reaches some 6 to 8 out of 10 on the Visual Analogue Scale. In particular, the pain is aggravated by any movement, particularly on reaching or elevating the arm, and even worse if he attempts to lift. The plaintiff described the right shoulder as quite stiff and problems getting his right arm above shoulder level which causes difficulties in dressing and getting his hand behind his back. In particular, the plaintiff also told Mr O’Brien that right shoulder pain causes significant disturbance in his sleep.
69 The plaintiff also thought his left shoulder had deteriorated over the last couple of years but the left shoulder pain is not as severe as that in the right shoulder. In particular, the plaintiff told Mr O’Brien that because of the severity of the right shoulder pain, he tends to use the left arm for most activities, including carrying any weights such as shopping bags. Although he continued to work in his role at Mornington Police Station, domestic activity was now significantly restricted and at that time, he informed Mr O’Brien that he was forced to completely give up golf and reported that for some time he had been unable to swim.
70 Examination of the right shoulder revealed restriction of movement and limitation of movement by pain. There was also some restriction of movement of the left shoulder, although not as extreme as the right and not as painful.
71 Mr O’Brien was of the opinion that physical signs in relation to both shoulders continued to demonstrate the presence of adhesive capsulitis bilaterally, with the right being worse than the left. He also considered that, on balance, such condition was permanent.
72 I also refer to the medico‑legal reports relied on by the defendant:
(a)the report of the surgeon, Mr Henry Byrne, who examined the plaintiff in relation to the left shoulder on 28 January 2003;[36] and
(b)the report of the orthopaedic surgeon, Mr Jonathon Hooper, who examined the plaintiff on 21 June 2011.[37]
[36]See Report of same date Exhibit 4, DCB 14
[37]See Report of same date Exhibit 4, DCB 22
73 When seen by Mr Byrne, a diagnosis was made of a rotator cuff lesion of the left shoulder. At that stage, Mr Byrne considered the plaintiff had a capacity to perform some work but not his pre-injury duties, although he considered there would be improvement.
74 When seen by Mr Hooper, a history was given in relation to the right shoulder that it continued “to bother him”; that sleeping was still “uncomfortable”, and that although he was playing golf, he had not played “recently”.
75 Examination at that time revealed a full range of shoulder motion on both sides and good power of the supraspinatus tendons.
76 Mr Hooper was of the opinion that the plaintiff experienced some discomfort in both shoulders which can be attributed to the injury.
The cross-examination of the Plaintiff
77 Under cross-examination, the plaintiff gave the following pertinent evidence:
·The land on which his present premises was built was bought about seven years ago and the house constructed about five years ago. At the time of the purchase of the land, certificates were available to people who had purchased any land in the estate to use the facilities which included the swimming pool and the golf course.
·The land was purchased prior to the injury and the construction of the premises was after the injury.
·Prior to the injury, the plaintiff swam two to three times a week, save for the period of about eighteen months following his left shoulder injury.
·He also ceased golf for about “eighteen months, two years” as a result of his left shoulder injury.
·Prior to his left shoulder injury, he was playing off a golf handicap of 6 and when he returned to playing golf after the left shoulder injury he re-established a handicap of 28. Over the time leading up to the injury, his golf handicap was reduced to 15.
·He accepted that he had registered for the Lexus Cup which is a general promotion for golfers and involves being awarded points for scores obtained by any particular golfer. In particular, this evidence was given:
Q: “They award points based on you submitting at least six rounds of golf club competitions in accordance with rules, isn’t that right?---
A: Quite possibly, yeah. I won’t argue with that.
Q: So that would mean that during the promotional period which, as I understand it, was between 1 March 2014 and 15 June 2014, you had to submit your scores for at least six rounds of the club competition in order to be considered as part of the promotion?---
A: Quite possibly.
Q: So in fact, during that period you played at least six games, didn’t you?---
A: Quite possibly.
Q: Well, not quite possibly Mr Aubert, you did, didn’t you?---
A: More likely, more.
Q: More likely, more?---
A: Yeah.
Q: More likely weekly?---
A: I think my average of golf playing has been weekly under difficulty. It’s been part of my life since I was eleven.”
HIS HONOUR:
Q: “Do you have in your job, Mr Aubert, is it, like, would you have RDOs, sort of mid-week, or was it maybe weekends that you were off, or how does it work?---
A: No, no, I have – I have rest days during the week. I have nine weeks’ leave. I have days – six days off after night shift.
Q: So what I'm getting at, when you are playing golf you are not limited to weekends. Is it at home during the week you might have a hit, sort of thing?---
A: Exactly.”[38]
[38]T14, L26 – T15, L19
·When it was suggested that the plaintiff played in the PDGA Masters’ Pennant completion in 2013, the plaintiff explained that the pennant side consists of six and there are a number of caddies of which he was one and never played golf for the pennant side that year (or for 2014).
·The plaintiff accepted that he played in a tournament at Cerberus Golf Club in December 2012 and that he had a “good game” and won the “nearest to the pin”.
·When it was put to the plaintiff that he told Mr O’Brien on 13 September 2004 that he had been forced to completely give up golf, the plaintiff stated:
A: “As I said, I told Mr O’Brien that the pain that I go through for two days after playing golf, I’ve become the director and will be giving up golf.”
HIS HONOUR:
Q: “What is significant in your mind Mr Aubert of being made a director, what has tipped your hand there about that?---
A: Tipped my hand because I live on a golf course. I pay body corporate fees that include two memberships to the golf club. It is where I would like to retire in the coming years and whereas most people if they gave up golf they’re not associated with the club, they can’t walk in and sit at the bar and have drinks and have meals and swim in the pool.
Q: You can’t get that even though you’re a member of the surrounding?---
A: No. So the idea was is that if I’m not going to be able to play golf properly or at least painlessly, being a director on the golf course I could be associated with all those things that I enjoy life doing.
Q. Yes. Just perhaps importantly so think carefully what you say to me, why is it at this point or around this time, this is now well over six years since your injury, why is it at this point that you’ve come to the view that you are going to give up golf as you described to the court?---
A: It was because the difficulty I have playing golf physically, is to me now – it is, it’s ongoing. It isn’t going to get any better. Secondly I had the opportunity because there wasn’t an opportunity before to be a director in the club, all the positions were full. It’s just that two positions have now come up as directors and I applied and got interviewed and have been accepted as a director. I then changed my focus of what I’m doing because these positions were never available before.
Q: Yes?---
A: And the fact that I’m having difficulty physically every time I play.
Q: Also, I just want to clarify. When you say you’re going to give up golf, by that do you mean give up perhaps the more competitive aspects of it, like competitions but continue, sort of, to have a – I am not a golfer but, you know an informal hit around the course or are you giving it up?---
A: I could see myself going down to the … [putting] green, having … [putting] competitions, that doesn’t affect me. I can see myself being still involved but competitions and pennant sides.
Q: Things like that?---
A: and all that, they’re gone for me.”[39]
[39]T21, L29 – T23, L10
·The plaintiff stated his current handicap at his club off the black tees is sixteen. He accepted that prior to his right shoulder injury it was fifteen and now he has brought his handicap down to sixteen. In particular, he gave the following evidence:
“Yeah, it took a little bit of time after the left shoulder repaired to start coming down again and I got to 15 then. I had to modify the way I swung because of my left shoulder and then had to do more in relation to my right shoulder. But that’s what handicap is all about. It’s about your ability to be able to play golf and making the competition more fair and hence that day at Cerberus, I think my handicap would have been the reason I did well.”[40]
[40]T25, L25 – T26, L2
·When queried by the Court as to what experience of pain that the plaintiff suffers when completing a round of golf, the following evidence was given:
“It’s a dulling pain across the back of my shoulder and neck area and I take some Panadeine or something for it. During some of the swings and all that, like, they hit the ground as an example, it will be sharp pain that really hurts. But afterwards there’s about two days of pain.”[41]
[41]T26, L25–30
·The plaintiff has had some recent acupuncture treatment to his shoulders by a physiotherapist who primarily treats for him a neck injury which occurred during recent times at work.
·The plaintiff accepts that he played at Woodlands Golf Club on 27 May 2014 in the Melbourne District Veteran Golfers’ Association meeting and obtained a “good score” of 34 and also won the competition for being nearest to the pin.
·The plaintiff described swimming being “a big part of my life”. In particular, there is a 50-metre swimming pool associated with the golf club and when he was swimming, he swum laps and he would have swum normally in the order of 15 laps two or three times a week. Prior to living at his present premises, he swam almost daily when living on a 5-acre property in Monbulk which had a pool and later, when he moved to Langwarrin, he swam at the local swimming pool situated in Karingal.
·The plaintiff accepted that he was an inspector in the Major Event Planning Unit in December 2009; was liaising with the Counter-Terrorism Division in April 2010; was an inspector for the Emergency Management and Counter-Terrorism Division in May 2010, all of which were offered to him. When queried as to the physical aspects of such work, the plaintiff stated:
“The positions that I did as an inspector at counter terrorism are less physically demanding than the senior sergeant at Mornington Police Station. They are strictly desk bound as you do not go out on the road and deal with any violent people. They are strictly about writing papers, doing instructions and doing lectures.”[42]
[42]T34, L30 – T35, L5
The plaintiff explained that he was seconded to these various divisions for various periods of time.
·The plaintiff stated that he had been in charge of the Mornington Police Station for about twelve years and has forty-two police under his command. When queried about whether he has been called out to potentially violent events, the plaintiff stated:
A: “I am never a first responder. Mine is more an overseer. I do two shifts a month out on the road for the purpose of making sure that the other police stations are doing the right thing. So I just visit them. I don’t respond to calls.
Q: So Mornington covers how many other police stations?---
A: The supervision part of it does from Carrum Downs, Frankston, down to Rosebud.”[43]
[43]T35, L1-5
The plaintiff explained that when he is out on the road he has to be “extremely careful”, that if he sees anything or anything is likely to happen, that he has back-up coming very quickly.
·The plaintiff accepted that he has undertaken all his biannual training that he is required to take over the years, noting that if he does not do such training he will “lose my position”. In particular, the following evidence was given:
Q: “And some of it is quite rigorous, isn’t it, physically?---
A: What – what you tend to do is that you partner up during the day course that you do for the physical stuff. You do firearms training, that is on your own. But when it comes to the physical part of it, you team up with another individual. I would like to select people that are of my age or around about and we take it fairly gentle in what we do. There’s been a number of injuries through OST. My left shoulder went through OST and we go through the motions. It’s not a matter of being very physically demanding at all.
Q: And OST is the Operational Safety and Tactics training,
isn’t it?---
A: It is.”[44]
[44]T37, L6–18
·He explained that his lawns are cut for him because pulling off the catcher when it is full causes difficulties and tipping grass into a large rubbish bin is also difficult. He stated such limitations were a result of his right shoulder.
·He continues to take Panadol Osteo and Nurofen and he considers that he would buy a packet of Nurofen every ten days. When it was suggested to him that his claim records would not suggest the purchase of any medication from at least 16 October 2010, the following evidence was given:
“As I said I – I buy painkillers for the pain that I suffer. I’d be – the paperwork build-up if I was doing it every 10 days for the fact I’m buying some Codral or Panadeine or anything like that, you’ll always get arguments about what’s it for. I’ve – I want to live my life and I want to do my job, that’s what I’ve always concentrated on. I’m not one to claim for every single thing that happens, it’s just not me.”[45]
·Although he has seen general practitioners since 2012, he accepted that he has not seen a general practitioner in relation to his right shoulder as he has been told nothing more can be done for him other than pain relief through medication. He also asserted that whatever the last recording of treatment may have been, he did discuss with Dr Maragoudakis his right shoulder generally from time to time when he saw him right up to when the doctor died in (he believes) 2013.
[45]T40, L10–18
78 Under re-examination, the plaintiff gave evidence that:
·After September 2014 (when he initially saw Mr O’Brien), he was having less difficulty with sleeping as a result of his left shoulder.
·Most of the physical parts of the physical training that he does now he does differently and in particular, the following evidence was given:
“I have to avoid certain things that they teach you. There is, as an example to try and explain it to you, they put you into a corner and you have four people with those kick pads and you’ve got to run through them and get through them and you use your shoulders to get through them. Well I don’t participate in that one and I tell them that I’ve got a problem with my shoulder, do you mind if I miss this part provided I do most of the other things, I get a pass mark.”[46]
·When queried by the Court as to any present restriction of right shoulder movement, the plaintiff said he cannot extend his right arm completely above his head but would be able to bring a baton down if it is up and down very quickly.
[46]T47, L14–22
Analysis of the evidence
79 I find that the plaintiff suffered a right shoulder injury arising out of or in the course of his employment on 10 August 2008. In this respect, I accept the evidence of Mr Broughton that an appropriate diagnosis would be right shoulder adhesive capsulitis. Furthermore, I find that such compensable injury has resulted in some permanent organic impairment of his right shoulder giving rise to some organic consequences. So much is not disputed by the defendant.
80 The defendant submits that after a consideration of all the evidence, the plaintiff has failed to discharge his onus in satisfying the narrative test.
81 Before making any findings of fact, I consider it apposite to make some comments on the credit of the plaintiff.
82 Counsel for the defendant submitted that the Court “should be a little bit wary in accepting the plaintiff as to the extent of the restriction he now says he has in respect of the right shoulder injury”. Such submission was put on the following bases:
(a) In his affidavit sworn on 23 October 2014 (one week prior to the hearing), the plaintiff described difficulties playing golf as a result of his right shoulder injury but makes no reference to giving up golf as asserted during his viva voce evidence. It was submitted that such an important issue would have been detailed in the affidavit if true;
(b) Exhibit 2, which is a letter from the President of the Settlers Run Golf and Country Club dated 8 October 2014, advises members, amongst other things, that the plaintiff had been appointed to a position of a director of the Club effective from that date. Again, it was submitted that considering such appointment had much significance to the plaintiff, that it would have been referred to in the affidavit sworn on 23 October 2014;
(c) The reported history given by the plaintiff to Mr O’Brien when the examination took place on 30 September 2014 included:
“That he has been now forced to completely give up golf …”.
Such history must be seen in the context that the plaintiff admitted playing golf at Cranbourne South on 4 October 2014 (although not in any competition);
(d) Exhibit A, which are said to be the subpoenaed records of Dr Maragoudakis, only run to 14 October 2010. Such records must be compared to the evidence of the plaintiff, who asserts that he attended on Dr Maragoudakis (his family doctor) right until his death and on various occasions, discussed the state of his right shoulder. The plaintiff believes that Dr Maragoudakis died some time in 2013 (although he was not sure);
(e) That in his affidavit material, the plaintiff made no reference to his difficulty in performing the OST training in distinction to his viva voce evidence. Counsel for the defendant highlights that since November 2013, the Defendant’s Court Book has contained the OST training modules and the plaintiff would have had ample opportunity to say anything in his last affidavit if such activities caused him difficulty.
83 Counsel also submitted that the plaintiff, a very experienced policeman, would have had experience of affidavits and understood the importance of what was contained in an affidavit. In essence, I understood the fundamental submission of the defendant to be that it is a remarkable situation that, given the lapse of time since the right shoulder injury, the alleged cessation of golf only occurred a very short time prior to the hearing of the matter and was not contained in any affidavit material.
84 Counsel for the plaintiff submitted that although it was “unfortunate” that the evidence pertaining to the cessation of golf and becoming a director was not in the affidavit material, the plaintiff was a “straightforward, genuine and honest historian”. In support of that submission, counsel referred me to the following matters:
(a)In paragraph 15 of the first affidavit, the plaintiff does make reference to the OST training when he states:
“Also I had to be more careful in carrying out operational safety tactics training which has to be carried out every couple of months.”
(b)In the same paragraph, the plaintiff states that on his resumption of normal duties in August 2009, he had to “exercise more care in carrying out my work” and “a little more alert and apprehensive about getting into confrontational situations”.
85 In cases such as these, the issue of credibility is an important one, as much turns on whether the consequences described by the plaintiff in relation to his right shoulder injury are accurate and truthful.
86 After a consideration of all the evidence, and, in particular, the evidence of the plaintiff, I consider that the plaintiff was a credible and impressive witness. At no time did I gain the impression that he was either attempting to mislead the Court or, indeed, even exaggerate the symptoms that he suffers in the right shoulder.
87 I have formed the view that at all times the plaintiff was attempting to give honest and accurate answers to the questions posed to him. In particular, I also note the following:
(a) I gained the impression that the plaintiff is somewhat stoic in relation to his condition and, indeed, note that in times gone past he has returned to work against the advice of his treating doctor;
(b) His first affidavit does make reference to some difficulties with his work (albeit not great) and some difficulties performing the OST training;
(c) That when queried about the history given to Mr O’Brien that he had ceased playing golf at the time of the examination on 30 September 2014, the plaintiff stated that Mr O’Brien must have misunderstood, because at that time he stated it was his intention to probably cease golf because of his ongoing problems;
(d) Furthermore, when queried about the letter from the President advising members of his appointment, the plaintiff gave evidence it was not until he actually attended the first directors’ meeting that he considered he was acting as a director;
(e) Although Exhibit A (which is the subpoenaed records of Dr Maragoudakis) seemingly only extend to 14 October 2010, I tend to the view, that the plaintiff did attend this doctor after that date. As the plaintiff stated, he attended this family doctor for the normal complaints that one attends a doctor and I find it remarkable that over the ensuing nearly three years there was no attendances whatsoever by the plaintiff. It is to be stressed that the plaintiff gave evidence that when he went to the doctor in the years leading up to the doctor’s death, it was for other reasons but there was frequently general discussions about the state of his right shoulder (although that not being the reason that he attended). I also note that the records that have been subpoenaed going back to August 2008 are noted to be “WC” which may be a reference to worker’s compensation and the times that the plaintiff attended Dr Maragoudakis for the express purpose of his right shoulder injury. In any event, I draw no adverse finding against the plaintiff in relation to such records.
88 Accordingly, after a consideration of all of the evidence, I make the following findings in relation to the consequences suffered by the plaintiff as a result of his right shoulder injury:
(a) The plaintiff suffers a limitation of movement of his right arm and shoulder. In particular, he has difficulty raising his right arm above the right shoulder or reaching behind his back. Such limitation of movement impacts on certain aspects of dressing and the performance of some domestic chores (for example cleaning spouts, removing grass catchers from motor mowers and lifting them to bins, and generally, any domestic duty working at shoulder height or above). It is to be noted that the plaintiff is right handed. I do not accept the opinion of Mr Hooper that the right shoulder had full movement as this is inconsistent with the evidence of Mr O’Brien and indeed the evidence of the plaintiff;
(b) The plaintiff always experiences some pain in the right shoulder but such pain is exacerbated if the right arm has to be used on a repetitive basis or is involved in any consistent lifting. I also find, consistent with the plaintiff’s evidence, that he does take Panadol Osteo and Nurofen as and when required. (He anticipates he would buy a packet of Nurofen every ten days);
(c) The plaintiff has had no active treatment in relation to his right shoulder since about 2012 although, I do accept, that he has had some acupuncture in the right shoulder area when attending for treatment in relation to a separate neck injury;
(d) The plaintiff has continued in his employment with the defendant. Given his senior position with the defendant, his duties are mostly limited to administration and a supervisory role. He has been seconded to various other task groups over the years, given his experience and expertise. He gave evidence, and I accept, that he tends to avoid any situation where there might be direct confrontation because of a concern as to how his right shoulder would cope and also, he is careful how he goes about and who he works with during the OST training;
(e) The plaintiff gave evidence, and I accept, that he has pain in his right shoulder during the night and if he rolls on his right shoulder he awakens immediately and has trouble getting back to sleep;
(f) I accept the evidence of the plaintiff that from recent times he has given up golf because of the increased pain that he suffers in his right shoulder for about two days after playing a game of golf. Such cessation, in my view, must also be seen in the context that he has been a player of golf since a teenager on a regular basis. The plaintiff saw fit to buy land and then build a house on an estate built around a golf course which perhaps gives some indication as to his passion for the game and adds weight to his assertion that absent the injury, he would have continued to play golf and was looking forward to playing golf in his retirement. I also find that his decision to give up the playing of golf is also brought about by his appointment to the committee of the golf Club as a director which allows him to have an ongoing role in the Club and in particular, to allow ongoing socialisation with members at the Club house;
(g) I also accept that the plaintiff has been an avid swimmer for most of his life and again, one of the attractions of his present residence is that it allows him access to a full-length pool where he used to swim on a regular basis prior to the injury. Again, I gained the impression that swimming was a major part of his recreational activities and had been for some time. Given his right shoulder injury, he is extremely limited as to what he can do in the pool.
Do these consequences satisfy the narrative test?
89 As recorded earlier in this judgment, the question of whether an injury satisfies the narrative test is largely a question of impression or value judgment. Notwithstanding the foregoing, there is some guidance from various Court of Appeal decisions:
(a) Stijepic v One Force Group Aust Pty Ltd & Anor,[47] wherein the Court of Appeal (consisting of Ashley JA and Beach AJA) commenting on the decision of Sumbul v Melbourne All Toya Wreckers Pty Ltd,[48] stated:
[47][2009] VSCA 181
[48][2006] VSCA 292
“So far as the respondents’ final submission is concerned, it is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered. … .”[49]
[49]Stijepic v One Force Group Aust Pty Ltd & Anor (op cit) at paragraph [47]
(b) Haden Engineering Pty Ltd v McKinnon,[50] wherein the Court of Appeal (Maxwell P, Buchanan and Nettle JJA) stated that the interpretation of “pain and suffering consequences” of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities and enjoyment of life.Part of that process is for the Court to assess the intensity of pain which the plaintiff experiences, together with frequency and duration of pain episodes.
[50](2010) 31 VR 1; see also Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
The Court of Appeal made reference to the Court of Appeal decision of Dwyer v Calco Timbers Pty Ltd (No 2),[51] and thereafter stated:
“As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this Court (per Ashley JA) said in Dwyer (No 2): ‘... [I]mpairment is concerned with what has been lost. But the significance of what has been lost ... may be informed, to an extent, by what is retained.’”[52]
[51][2008] VSCA 260
[52]Haden Engineering Pty Ltd v McKinnon (op cit) at paragraph [14]
90 It is clear that the plaintiff has continued performing the same type of work he was performing prior to the injury. Furthermore, the impact of the injury on his employment has not been, in my view, that significant, given that his employment activities are mainly supervisory and administrative. Furthermore, active treatment has been virtually non-existent since 2012 in the context of the plaintiff being advised that there is little more that can be done for his right shoulder other than symptomatic relief through medication. Also, although I accept, as recorded earlier, that the right shoulder injury has impacted on the plaintiff performing various domestic chores, such in itself, in my view, would not constitute a satisfaction of the narrative test.
91 However, I consider that the losses suffered by the plaintiff in being unable to continue to play golf in the way he has over the years, and the loss to the plaintiff of being unable to swim as he has over many years are important. Clearly, playing golf, in particular, and swimming have been very much passionate recreational pastimes of the plaintiff.
92 The impression that I gained is that since the advent of the right shoulder injury, the plaintiff has attempted to continue to play golf, trying to balance his passion for playing the game against the increasing pain that he was suffering in the right shoulder. Although I accept that the plaintiff will continue to have some involvement with the golf club in his role as a director, the loss of being able to actively play golf must be seen in the context of someone who has played frequently for the last forty years, is passionate about playing golf, saw fit to live adjacent to a golf course and envisaged his retirement days to be spent frequently playing golf.
93 When one takes all the consequences into account, I am satisfied that although a “line ball” case, the plaintiff does succeed in establishing satisfaction of the narrative test.
Conclusion
94 Accordingly, pursuant to s134AB(16)(b) of the Act, I grant leave to the plaintiff to bring common law proceedings in respect of his right shoulder injury suffered on or about 10 August 2008.
95 I will hear the parties on the issue of costs.
- - -
ANNEXURE “A”
1 The plaintiff tendered the following material:
Exhibit A:
– Affidavit of plaintiff sworn 10 September 2012.
– Affidavit of plaintiff sworn 8 November 2013.
– Affidavit of plaintiff sworn 23 October 2014.
(Such documents are found at pages 4–17 Plaintiff’s Court Book (“PCB”).
Exhibit B:
– Left shoulder ultrasound dated 1 January 2013.
– Left shoulder hydrodilatation dated 12 May 2003.
– MRI scan of right shoulder dated 30 October 2008.
– Operation report dated 20 March 2009.
(All such reports are found at pages 18–21 PCB).
Exhibit C:
– Medical reports of Dr George Maragoudakis.
– Reports of Mr N Broughton dated 18 November 2002, 16 December 2008, 9 February 2009, 20 March 2009 and 23 March 2010.
(These reports are found at pages 43–49 PCB).
Exhibit D:
– Medico-legal reports of Mr J O’Brien dated 29 April 2004, 28 August 2013 and 30 September 2014.
(These reports are found at pages 50–62 PCB).
Exhibit E:
– Medical Panel Opinion dated 12 April 2011.
Exhibit F:
– Clinical records Mornington Central Physiotherapy.
– Report of Ms Chantelle McKenzie.
2 The defendant submits the following documents:
Exhibit 1:
– Lexus Cup 2014 Series 1 document.
Exhibit 2:
– Letter from Mr Nicholls, President of Settler’s Run Golfing Country Club dated 8 October 2014.
Exhibit 3:
– Letter from Hall Road to Lander & Rogers dated 15 August 2014.
(Document found at page 1a Defendant’s Court Book (“DCB”).
Exhibit 4:
– Report of Mr Henry Byrne dated 28 January 2003.
– Medical report of Mr J Hooper dated 21 June 2011.
(Such reports found at pages 4–18 and 22–23 DCB).
Exhibit 5:
– OSST records.
(Such records found at pages 28–31 DCB.)
Exhibit 6:
– Record of shift allowances and overtime 2012 to August 2014.
(Such records found at pages 32–34 DCB).
Exhibit 7:
– OSST session period January 2014 to June 2014.
– OSST session period July 2014 to December 2014.
Exhibit 8:
– Clinical records of Dr Maragoudakis.
0
9
0