Beltrami v Harmonious Blend Building Corp Pty Ltd
[2013] VCC 180
•7 March 2013
surveillance
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
ACCIDENT COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-00841
| CLAUDIO BELTRAMI | Plaintiff |
| v | |
| HARMONIOUS BLEND BUILDING CORPORATION PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21, 22 and 25 February 2013 | |
DATE OF JUDGMENT: | 7 March 2013 | |
CASE MAY BE CITED AS: | Beltrami v Harmonious Blend Building Corp Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 180 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right and left shoulder
Legislation Cited: Accident Compensation Act 1985
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Wicks | Maurice Blackburn |
| For the Defendant | Ms S Gold | Lander & Rogers |
HIS HONOUR:
1 In this application, the plaintiff seeks leave to commence a proceeding claiming pain and suffering damages in respect of a compensable injury suffered by him to his right shoulder on 2 May 2006. Essentially, the issue for my determination involves whether or not the pain and suffering consequences of the impairment in function of the plaintiff’s right upper limb which arises by reason of his injury meets the statutory definition of serious injury as established by s134AB of the Accident Compensation Act 1985 (“the Act”).
2 A preliminary issue arises for my consideration as to whether, in this application, the plaintiff is entitled to rely upon the consequences to him of the condition which he developed in his left shoulder (in the form of rotator cuff tendonitis and bursitis), the cause of which was the fact that the plaintiff became “reliant on that left shoulder because of his work-related right shoulder condition”.[1]
[1]See the report of Mr Francis Lyons, the plaintiff’s treating orthopaedic surgeon, dated 26 April 2007 at Plaintiff’s Court Book (“PCB”) 64
3 There is no issue in this instance that the medical condition affecting the plaintiff’s left shoulder was materially contributed to by his right shoulder injury.[2] In these circumstances, in assessing the plaintiff’s accident-related consequences, I am satisfied that I should take into account as a consequence of the plaintiff’s right shoulder injury, the pain, restriction of movement and disability occasioned to the plaintiff by reason of the condition in his left shoulder.
[2]See the opinion of the Medical Panel dated 19 October 2007 at PCB 64A
4 The plaintiff, who was born in April 1958, relies upon two affidavits in this matter; the first prepared on 29 September 2011 and the second on 5 February 2013.
5 In his first affidavit, the plaintiff deposed that he was right handed, was a qualified carpenter and had been employed by the defendant as a building supervisor. He said that he had injured his right shoulder and, to a lesser extent, his back, as a result of a fall in May 2006, following which he had ongoing symptoms of pain in his right shoulder.
6 He said that he eventually consulted Mr Francis Lyons, an orthopaedic surgeon, who, on 10 October 2006, undertook open surgery to treat an injury to the plaintiff’s right acromioclavicular joint. As the result of that injury, the plaintiff said that he began to develop symptoms of pins and needles in his left shoulder stemming, in his opinion, from his practice of protecting his right shoulder, and that he underwent surgery to his left shoulder on 27 March 2008. The plaintiff said that following the surgery to his left shoulder, he suffered a significant deterioration in the condition of the shoulder.
7 As at September 2011, the plaintiff relied on the following consequences with respect of the condition of both his left and right shoulders:
(i)Pain and restriction of movement in each shoulder, the left more so than the right;
(ii)Disturbed sleep;
(iii)The need to avoid activities involving repetitive use of his arms and above horizontal height work which meant that the plaintiff:
§ was restricted in his ability to maintain his house and to undertake domestic chores;
§ had to largely give up playing cricket. The plaintiff had been the captain of a B Grade cricket side, where he was the opening bat with an average of 30 and first change right arm medium pace bowler. He described the change in his ability to play cricket in the following terms “I’ve tried playing a few times but I’m unable to bowl”.
§ had to give up fly fishing, which he said he had loved with a passion (in the season, the plaintiff would go fly fishing every weekend). The plaintiff said that he had abandoned fly fishing, with the result that his fishing was confined to “a bit of float fishing but I miss the thrill of fly fishing”;
§ had to give up hunting, which involved the use of a .308 heavy-calibre rifle and which he described as “a great passion”. He said that it had been his practice to go on hunting expeditions to New South Wales and Queensland with his sons or with other friends four times a year. He said that whilst he would still go on these excursions with his sons, he could no longer shoot and they were now, for him, a camping trip.
8 The plaintiff said that he employed medication to cope with pain and to sleep when his symptoms were particularly bad. He said that he had not consulted Mr Lyons for some time, it being his belief that nothing could be done for his condition, and unless there was a deterioration in the condition, he did not need to see a doctor.
9 In his second affidavit, the plaintiff said:
·that his left shoulder was currently worse than his right shoulder;
·that almost any activity with his left arm “seems to cause pain after a while. I am constantly aware of it as a problem, although I may not have constant pain. Although any activity can cause pain, it is particularly painful if I take any load on it above horizontal plane and worse if I try to do anything above shoulder height.”
·that his sleep continued to be disturbed by pain and that he employed medication to assist him to sleep.
·that by reason of his symptoms, he had had to give up his favourite hobbies of fly fishing, playing cricket and shooting.
The medical evidence
10 It is not in issue that the plaintiff suffered an injury to his right rotator cuff which was treated by Mr Lyons by the performance of a decompression of the rotator cuff tendons in the course of the performance of an excisional arthroplasty. At the time of the surgery, Mr Lyons noted the presence of significant post-traumatic degenerative changes involving the joint surfaces. Following surgery, the plaintiff was, by 8 December 2006, reporting significant improvement in his shoulder, but by 14 February 2007, he re-presented to Mr Lyons reporting that whilst his right shoulder remained satisfactory, symptoms of pain had emerged in his left shoulder. On 27 March 2008, Mr Lyons performed a decompression of the left rotator cuff.
11 By May 2008, Mr Lyons noted an improvement in the plaintiff’s condition and the presence of mild residual stiffness in the left shoulder and some soreness in extremes of movement. As at that time, Mr Lyons opined that the prognosis with respect to the plaintiff’s shoulder conditions was favourable and it was unlikely that he would require any further specific medical treatment.[3]
[3]See the report of Mr Lyons dated 8 January 2009 at PCB 61-63
12 In a report dated 1 May 2012, Mr John O’Brien, an orthopaedic surgeon, opined:
(i)that the plaintiff presented with “persistent restriction of shoulder movement suggesting some very mild residual rotator cuff tendinopathy”;
(ii)that the plaintiff described an ongoing mild disability associated with his persistent pain “which I think could be regarded as chronic pain”;
(iii)that the plaintiff was physically incapable of returning to unrestricted physical duties and that the plaintiff “will in fact require permanent modified duties if he is to remain within the workforce, there being no possibility that this patient could return to unrestricted duties. I would however consider that if, as indicated, modified duties are pursued, he will continue in full time employment. Overall however the patient is limited in his general, social, domestic and recreational activities and this situation I am sure is a permanent problem.”
13 On 31 May 2007, the plaintiff was seen by Dr David Barton, a consulting occupational physician, to whom he gave a history that his right shoulder “is fantastic 90 per cent of the time”. He reported however the presence of symptoms in his left shoulder which were not the same as he felt on the right, but which he thought were possibly a muscular problem.
14 On 25 May 2010, Mr Michael Troy commented that the plaintiff had undergone soft-tissue injuries to both his shoulders “for which he has had adequate surgical repair”.
15 The plaintiff’s general practitioner, Dr Usha Chand, in a report dated 18 June 2010, reported that the plaintiff suffered from residual ache in his left shoulder with mild restriction in joint movements and some difficulty lifting heavy objects with his left hand, that he had no pain or restriction of movement in his right shoulder, and that he was back to full-time work.
16 Dr Chand attended for cross-examination in the course of this application. She said that:
· she had prescribed Panadeine Forte for the plaintiff on 13 October 2006, and Stilnox for his use on 22 January 2007;
· after January 2007, the plaintiff had not consulted her with respect to his shoulder symptoms until 17 June 2010 and that during the intervening period, the plaintiff did not discuss with her any problems associated with the conditions in either his left or right shoulder.
· between 1 October 2010 and 8 May 2012, she was not consulted by the plaintiff “regarding WorkCover related issues” but that on 8 May 2012, she had obtained a history from the plaintiff that his right shoulder restricted him from bending, twisting and lifting heavy objects.
· on 31 May 2012, she had a long consultation with the plaintiff which involved a “discussion on social dynamics at home”; that at that time she prescribed for the plaintiff’s use Temaze, a sleeping tablet, commenting “My understanding was that the family stresses and all the circumstances surrounding that was exacerbated his – the discomfort and things he was feeling regarding his shoulders, his back and – and those stresses related to his work, and he was not coping very well. At that particular time it was more because of family than his injuries.”
· as at October 2012, the plaintiff retained about 80 per cent of the movement in his shoulders.
17 As at 1 October 2010, Dr Chand opined that the plaintiff had permanent restrictions in his capacity to work and that “before he could be doing virtually anything, not only in the management side as a supervisor, but also giving a hand in doing whatever they wanted to do, but now … so because of that he has now changed his job as a site manager which only required him to be working more in a supervisory point, and occasionally giving a hand if he has to, but not really so. So in that way his capacity in a range of work that he used to do before he feels that is restricted that he cannot go back to doing what he was doing.”[4]
[4]T117
18 Dr Chand commented:
· As to the plaintiff’s pain management that she had “discussed about pain, but no I have not referred him because be does not like taking medication. et cetera”; [5]
[5]T118
· that she had no difficulty in accepting the plaintiff’s complaints of pain;
· that she had recently prescribed Temaze for the plaintiff’s use, explaining “because of the – even though the tension at home has improved, but there still is some tension at home, the stresses at home relating to his children and the extended family that goes with it, but as – but he is always, if you look back he had complained that he was having difficulty lying on his shoulders and this, he’s been able to cope okay but with the added stresses he felt that he needed help to go to sleep”.[6]
The plaintiff’s viva voce evidence
[6]T122
19 In the course of both cross-examination and re-examination, the plaintiff gave the following evidence:
·He employed non-prescription painkilling medication in the form of Panadol and Panadol Forte (the latter being a bit stronger than Panadol) at least twice a week and Voltaren every couple of weeks.
·He did not really complain of shoulder pain to Dr Chand very often.
·During the 2010 year, he had mentioned shoulder pain to Dr Chand only on one occasion and there were no consultations between he and Dr Chand in 2001 in which he mentioned shoulder pain. In 2002, he consulted Dr Chand in May as he had a very bad month with family issues. He was not sure whether he had consulted Dr Chand with respect to symptoms of shoulder pain during 2012.
·He accepted that he found the use of Panadol, Panadol Forte and Voltaren tablets adequate treatment for him and that he could manage his symptoms himself. It was put to the plaintiff:
“Q:And so it’s not serious to you?---
A: It is serious to me, yes it is.
Q:Well you’ve just said if your shoulder was serious you’d go back to Dr Chand?---
A: But that doesn’t mean it’s not serious to me.
Q:If your shoulders were causing you significant pain, or concerns you’d go back to Dr Chand?---
A: But I’m managing it with my tablets.”[7]
[7]T23
·Whilst in his affidavit the plaintiff had said that in September 2012, he was employing Stilnox as a sleeping tablet, he corrected this evidence, saying that at that time he was using a non-prescription medication, Phenergan. He said that Dr Chand had prescribed Temaze for him in May 2012. He accepted that at that time, he was having difficulty sleeping because of his family problems. When it was put to him that Temaze had been prescribed for these problems, he said:
“A: No, I had pain in my shoulders that I was having trouble with and had some serious family issues that I was trying to deal with. That’s why I went to the doctor.[8]
[8]T27
Q: Did you have any aggravation of your shoulder pain in May
2012?---
A: Not so much aggravation, it just – because I was having the family troubles and the shoulders, I was just having a lot of trouble sleeping so - - -.”[9]
[9]T28
· By late 2011, his family problems had resolved, but Dr Chand prescribed Temaze for him only two days ago.[10] He accepted that one of the reasons Temaze was being prescribed for him was because of stress and anxiety, and that he used Temaze approximately three nights a week and Phenergan once a week to assist his sleeping.
[10]T31
· He had resigned from working with the defendant by reason of the defendant’s attitude to the circumstances of his injury. Some three weeks later he had commenced employment with Haulton Constructions. This work involved a large amount of country driving. He left that job because it affected “me shoulders me home life everything”. He was currently employed with Busby Homes in a supervisory role. He was able to cope with the demands placed upon him by that work. His present rate of pay was $50,000 per annum greater than that which he was earning at the time of his subject injury.
· He had a well-equipped toolshed which included a compressor, saws, welding equipment and nail guns. He had two teenage boys, the eldest of whom was a qualified carpenter:
“T[h]ey heavily use all that stuff at home.”[11]
[11]T39
·He said that he undertook the maintenance of rental properties which he owned with his sons. “Well I - I do - but the light stuff I do - the heavy stuff they do.” He said he avoided as much as possible repetitive use of his arms, in particular movements above horizontal height. He agreed that he continued to do house handyman work but not to the degree that he used to undertake those activities. He said he now concentrated on his garden. He mowed the lawns using a ride-on mower. He could trim the hedges with the hedge trimmer. He was able to clean gutters and to undertake handyman work to some extent. He said that for the very big jobs he now employed “one of my carpenters at work”[12] but that he was able to do smaller things such as painting his laundry, which was about 3 x 4 metres, if he paced himself. “… if I only do it an hour or two it’s okay.” He said, “I’ve always been a person that’s go, go, go, that’s been all of my life”.
[12]T42
“Q: So you enjoy doing home maintenance tasks?---
A: I used to love it, yeah.
Q: Well, you still like it, well you enjoyed painting the laundry?---
A: Yes.
Q: You’ve got evidence in your affidavit you’ve bought a ride-on mower?---
A: Yes.
Q: So you enjoy mowing the lawns?---
A: Love it, yes.”[13]
[13]T43
·His left arm was worse than his right arm. Any activity with his left arm caused pain after a while. His symptoms, however, were not constant. He accepted he could carry things at horizontal level and that this did not cause him particular pain but that he had difficulty lifting things above shoulder height. He said that one or two things were alright, and readily agreed that he could lift things above shoulder height. He accepted that he could lift heavy things above shoulder height from time to time. As to his attitude with respect to activity with his left shoulder, he said “What I’m trying to say is I’m conscious of my left shoulder at the moment, so I just try to avoid it as much as possible or do as little with it as possible”.[14] He accepted that he had described his right shoulder as being fantastic 90 per cent of the time, that his pain was intermittent but that his symptoms were aggravated by physical activity with his arms, such as lifting and carrying “Too much of it, yeah”.[15]
[14]T45
[15]T48
·He agreed that he was able to swing a hammer and that his difficulty in this respect involved using a hammer effectively well above shoulder height. He said he could lift 5 or 10 kilograms but if he did that three or four times, he would end up with a sore shoulder and a sore back. He accepted that he did lift these sorts of weights on occasions with that result.
·As to his loss of the ability to participate in the sports in which he engaged prior to his injury, the plaintiff said:
(i)That he could no longer go fly fishing. He said that he could fish by dropping a line into a river but “it’s not – there’s no skill involved, or – catching a trout on a fly rod is very skilful”.
“Q: Why can’t you do that now?---
A: Because with fly fishing you’re sitting there or well you – I used to walk the rivers and just fly – throw the fly in and out all day.
Q: What’s that involve just in terms of actions?---
A: Well, throwing a rod in and out all day and it’s constant, that’s all you do. You throw the fly – you throw the fly in, you wind it in. You keep doing it till you get a trout. It’s very productive.”[16]
[16]T97
(ii)That he could no longer play cricket on a regular basis but that he would fill in with the D Grade Seniors once a month. He said that he could no longer throw a ball and that he had taken up a position as president of the cricket club. It was put to him that he was heavily involved in the social aspect of the club, to which he replied: “It’s more of a Thursday night, because I you know I’m not there many Saturdays so – I mainly go on a Thursday night.”[17] He explained, “Cricket revolves around playing cricket winning and succeeding, not being the president of the club”.
“Q: So you don’t think being the president of the club means that you have an important role in the cricket club?---
A: Not for me, no. I only do it because my boys. If my boys don’t play down there I probably wouldn’t go down there.”[18]
Before the accident, he was playing in B Grade. He was the opening bat and the second change bowler. He was the captain of the team. He said he loved playing cricket and that he would have kept going because he wanted to keep playing with his boys particularly his older son who is quite a good cricketer. He said that he could still accompany his sons when they went shooting but now it became a bit of a road trip. His sons went hunting and he went fishing which involved him sitting by a river fishing with a float and worms.
[17]T 94
[18]T 95
20 The defendant relies upon video surveillance in this proceeding. It is not put by the defendant that the surveillance depicts the plaintiff engaging in any activity in respect of which the plaintiff gave evidence he was unfit to engage in. Rather, it is put:
· That the video evidence depicts the plaintiff being engaged in sustained activity in respect of which, on most occasions, it was conceded by the plaintiff that his engagement in such activity did not aggravate his symptoms; and
· That the surveillance evidence provided a good illustration of the broad range of activity which the plaintiff is able to engage in and accordingly, that it provided a realistic marker of the broad range of physical capability retained by the plaintiff notwithstanding the conditions from which he suffers in his shoulders.
21 As to the relevance of the video evidence:
(i) Firstly, I do not accept the position that the video depicts the plaintiff being involved in sustained activity or activity which is physically demanding;[19]
[19]I accept the plaintiff’s description of his activities at Transcript 72, lines 21 to 26, and am satisfied that this statement has general application to the activities by the plaintiff as depicted in each of the videos.
(ii) Secondly, given that the video surveillance:
§ provides merely a snapshot of the plaintiff’s capabilities which is selective by reason of the fact that it does not involve continuous footage and involves a total of some two hours of film compiled during a period of approximately 79 hours of surveillance; and
§ involves only a representation of the plaintiff’s retained capacities and not those which have been lost by a man who was an unusually fit, active and competent sportsman, and qualified carpenter possessing the skill to undertake the full complement of home maintenance and building works for which he was equipped by reason of his trade;
I am of the opinion that the video evidence is only of marginal relevance in the task which I am to undertake, namely, to make a finding as to the consequences to this plaintiff of the injury and impairment the subject of this application taking into account not only what has been retained (in respect of which the video evidence provides some guidance), but also what has been lost (in respect of which the video provides no guidance).
22 In making my findings, I am satisfied that the plaintiff is a most forthright person. His evidence satisfies me that he was an accurate witness whose viva voce evidence was totally reliable. I make this finding relying upon not only what the plaintiff said but also the way in which he gave his evidence. The overwhelming impression which I gained, having heard the plaintiff describe the pain and suffering consequences which he has experienced as the result of the subject injury and impairment, is that whilst he retains at some level the ability to participate in all the activities in which he engaged prior to his injury, his involvement in those activities has been altered such that he has been reduced from the previous position which he occupied as a primary participant, to a very passive role which represents to him a very significant loss.
23 I am satisfied:
(i)That the plaintiff suffers from intermittent levels of symptoms of pain which he controls adequately by resort to non-prescription painkilling medication and by largely, but not totally, avoiding activity which unnecessarily exacerbates his symptoms. Having made this finding, I do not regard it as significant that the plaintiff does not make regular mention of his symptoms to his general practitioner or seek treatment with respect to those symptoms.
(ii)That the plaintiff’s sleep is affected to a modest degree by the presence of his symptoms such that he has, over the years, required recourse to a non-prescription mild sedative in the form of Phenergan to assist him to sleep and to stronger medication in recent times when his consciousness as to his discomfort has been enhanced by the emotional upheaval he has experienced.
(iii)That the plaintiff was an unusually competent cricketer, that he has lost the ability to play cricket at the serious level in which he was involved (B Grade) and that he derives little satisfaction from assisting to make up the numbers in D Grade, in circumstances in which he can no longer bowl; he cannot throw the ball when fielding, and his batting prowess has been largely obliterated when compared to that which he previously displayed as an opening bat with an average in B Grade of 30. As to this loss, I am satisfied that for the plaintiff the loss of the camaraderie involved in captaining his team, opening the batting and bowling, in no way made up for by the fact that he is the club president and that the plaintiff’s evidence at T95 L8 is telling as to this point;
(iv)That the loss to the plaintiff of the ability to participate in the sport of fly fishing involves the loss of an ability to pursue a passion, and that his ability to undertake more passive forms of fishing provides some but very modest comfort to him for that loss.
(v)That the plaintiff’s inability to hunt with his friends and his sons involves the loss of a pastime from which the plaintiff derived considerable enjoyment, and which provided for him an ability to bond with his sons and his friends through their combined mutual activity. The plaintiff’s losses in this sense, in my opinion, fall into the same category as those associated with his inability to play “proper” cricket.[20]
(vi)That the condition of the plaintiff’s shoulders is such that he is significantly restricted in his ability to perform any heavy physical work with the result that whereas before sustaining his injury he was capable of performing all nature of handyman activity in which he often worked side by side with his sons, he has now been reduced to requiring assistance in performing activities in respect of which he would not have sought assistance previously and is now confined to the performance of light activity in which he acts as a “gofer” for his sons and in particular, for his eldest son, who is a carpenter.
[20]T92
24 I am satisfied, on the basis of the findings which I have made, that the consequences to the plaintiff’s life and lifestyle by reason of the impairment of function in his right shoulder are such that they constitute an impairment which satisfies the description of being more than significant or marked and as being at least very considerable, and I make that finding after having made the relevant comparison which I am required to do pursuant to the statutory scheme.
25 It follows that I am satisfied that the plaintiff’s impairment meets the statutory definition of “serious injury” in s134AB of the Act and that the plaintiff is entitled to the leave which he seeks in this application.
26 I will hear the parties as to the precise form of the order which will be made in the application and also upon the issue of costs.
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