Bergin v Elsey Nominees Pty Ltd

[2023] VCC 406

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Serious Injury List

Case No. CI-22-02341

IAN LEONARD KEITH BERGIN	Plaintiff
v
ELSEY NOMINEES PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE MYERS
WHERE HELD:	Melbourne
DATE OF HEARING:	2 and 3 March 2023
DATE OF JUDGMENT:	23 March 2023
CASE MAY BE CITED AS:	Bergin v Elsey Nominees Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VCC 406

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury application – injury to the left shoulder – injury to the right shoulder – pain and suffering and loss of earnings consequences

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)

Cases Cited:Lexa v Transport Accident Commission [2019] VSCA 123; Acir v Frosster Pty Ltd [2009] VSCA 454; Richter v Driscoll & Ors (2016) 51 VR 95; Church v Echuca Regional Health (2008) 20 VR 566; Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170

Judgment:                  Leave granted to the plaintiff to bring a proceeding at common law.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T P Tobin SC with Mr N Dunstan	Slater and Gordon Ltd Lawyers
For the Defendant	Mr S Pinkstone	TG Legal + Technology Pty Ltd

HER HONOUR:

Introduction

1Mr Ian Bergin, the plaintiff, is a 58-year-old man who has performed manual jobs throughout his working life.  He was employed by the defendant as a delivery driver and machine operator for almost 18 years. 

2The plaintiff seeks leave to commence a common law proceeding for both pain and suffering and loss of earning capacity damages.  His claim is that he has a “serious injury” to each of his shoulders.

3There was no dispute between the parties that the plaintiff suffered compensable injuries to his shoulders.

4The relevant legal principles are well known and were not in issue.  The plaintiff cannot aggregate the impairment consequences of bilateral shoulder injuries for the purpose of this application.[1]

[1]Lexa v Transport Accident Commission [2019] VSCA 123

5The defendant identified four bases upon which the plaintiff’s application was contested, being:

·        the credibility and reliability of the plaintiff;

·        the plaintiff’s failure to separately identify the impairment consequences of each shoulder injury;

·        disentanglement of the consequences referable to the plaintiff’s left knee injury; and

·        work capacity.

6For the reasons below, the plaintiff is granted leave to seek loss of earning capacity damages.  Such leave also entitles the plaintiff to claim pain and suffering damages.

Background

7The plaintiff was born and brought up in Victoria.  He lives with his partner in Romsey. 

8At school the plaintiff struggled with dyslexia and had difficulties with reading and writing.[2]  He left school after completing year nine.  Thereafter, the plaintiff worked in various manual roles, including as a factory worker, groundsman, forklift driver and as a self-employed painter/handyman.[3]

[2]Plaintiff’s Amended Court Book (“PACB”) 23

[3]PACB 23

Work for the Defendant and the incidents

9The defendant manufactures labels and other paper products in Thomastown.  The plaintiff started working there on a full-time basis in July 2003. 

10In approximately February 2015, the plaintiff tripped while walking through a door when completing a delivery, injuring his right shoulder (“the first incident”).[4] 

[4]        PACB 24

11On 12 June 2015, the plaintiff injured both shoulders as a result of pushing his work van, which had broken down (“the second incident”).[5] 

[5]PACB 25

Treatment

12Following the first incident, the plaintiff attended his General Practitioner (“GP”), Dr David Wilson and was referred for physiotherapy.  An ultrasound of the plaintiff’s right shoulder on 11 February 2015 was reported to show bursitis.[6]

[6]PACB 45

13Following the second incident, the plaintiff attended his GP and was referred for further physiotherapy.  The plaintiff underwent bilateral shoulder ultrasounds on 30 June 2015.[7]  The appearance of the right shoulder was reported to be similar to that found in the February 2015 ultrasound.  In the left shoulder there were reportedly findings consistent with tendinopathy, an intrasubstance partial tear and bursitis.

[7]PACB 46

14The plaintiff had ultrasound-guided injections into both shoulders.

15As the plaintiff was suffering from persistent pain in his shoulders, further imaging was undertaken.  An ultrasound performed on 4 May 2017 is reported to show a full-thickness posterior tear of the right supraspinatus; a partial thickness right subscapularis tear; mild subacromial bursitis and evidence of impingement on the right; partial anterior articular surface and posterior intrasubstance tears of the left supraspinatus and mild impingement on the left.[8]  

[8]PACB 48

16In approximately 2017, the plaintiff was referred to Professor Eugene Ek, orthopaedic surgeon.  Professor Ek recommended surgery on both shoulders.

17On 5 March 2018, the plaintiff underwent a left shoulder arthroscopic subacromial decompression and bursectomy, capsular release, rotator cuff repair (subscapularis) and mini-open subpectoral biceps tenodesis.[9]

[9]PACB 54

18On about 3 August 2018, the plaintiff underwent a right arthroscopic subacromial decompression and bursectomy, rotator cuff repair and mini open subpectoral biceps tenodesis.[10]

[10]PACB 55 and 57

19The plaintiff has had further injections into his shoulders since 2018.[11]

[11]Transcript (“T”) 46

20The plaintiff’s current treatment regime includes monthly GP visits and the daily use of Targin and Panadeine Forte.[12]  He performs shoulder exercises at home.[13]

[12]PACB 33

[13]PACB 111, 113, 125, 135 and T79

Work following the incidents

21After the first incident, the plaintiff had a few days off work, then returned to performing his normal duties.  However, he says he struggled with ongoing pain in his right shoulder.

22Following the second incident, the plaintiff continued working, performing his pre-injury duties.  He says that he adapted the manner in which he performed his work because of ongoing difficulties with both shoulders.

23The plaintiff ceased work prior to his first arthroscopy.  He returned to work in late 2018 on modified duties and reduced hours.  He performed driving duties only, with no heavy lifting or carrying.[14]  Initially, he worked just a few hours at a time.  Subsequently, he progressed to two shifts per week with some limited packing duties at the beginning and end of the shifts and a lifting restriction of 15 kilograms.

[14]PACB 27

24The plaintiff stopped working in early 2020.  His employment was subsequently terminated in March 2021 on the basis that he was unfit to perform his pre-injury duties.[15]  The plaintiff has not worked since, except for one brief attempt to trial interstate truck driving.  The plaintiff said that after thirty minutes of driving it was clear that he could not continue.

[15]PACB 169

Other health conditions

25In early April 2022, the plaintiff suffered a minor stroke.  He was an inpatient at the Northern Hospital for about five days.  It was not in dispute that the plaintiff recovered from the stroke and there is no ongoing incapacity in relation to it.

The Plaintiff’s credibility and reliability

26The defendant made a sustained attack on the plaintiff’s credibility and reliability.  Mr Pinkstone, who appeared for the defendant, submitted that the plaintiff was unreliable, evasive, belligerent at times and not doing his best to tell the truth. 

27The primary basis for the submissions regarding the plaintiff’s credibility and reliability were founded upon the surveillance footage taken on 8 April 2022.  The secondary basis was the manner and content of the plaintiff’s evidence and account to doctors of his impairment.

Surveillance footage

28The defendant relied upon approximately ten minutes of video surveillance taken of the plaintiff on 8 April 2022.  The footage commenced at 10.23am and concluded at 11.31am.  It was not continuous; however, the plaintiff did not suggest that it had been imaginatively edited.

29Near the start of the footage, the plaintiff reached over the side gates of a trailer, at or about shoulder height, to put a bundle of garden waste in.  The bundle looked to be lightweight. 

30The plaintiff drove his car, with the trailer in tow, to the local tip.  His partner accompanied him.

31At the tip, the plaintiff’s partner opened the rear gates of the trailer.  The plaintiff’s partner pulled garden waste out of the back of the trailer.  The plaintiff removed a shovel and garden fork from the back of the trailer.  He then alternatively used the shovel, fork and both hands to remove garden waste from the trailer and throw it onto the tip over the following three minutes or so.  The plaintiff climbed into the trailer to scrape out the contents. 

32In the course of unloading the trailer, the plaintiff made repeated back and forth movements with both arms.  It appeared to me that this was a reasonably strenuous activity at times.

33The footage then showed the plaintiff’s partner driving the car, with the trailer in tow, back to her property, with the plaintiff in the passenger seat.  Some thirty minutes later, the plaintiff was filmed standing at a garden supplies yard talking to the owner.

34The defendant submitted that the plaintiff’s activities in the surveillance footage were in stark contrast to the way the plaintiff had presented to various doctors.  For example it was said that he presented a picture to doctors of being grossly restricted in his capacity to perform everyday household tasks because of an inability to perform back and forth movements with his shoulders because of pain.

35When cross-examined about the surveillance footage, the plaintiff said that he could do any activity for a short period.  The defendant submitted that evidence was new.  It was said that it was not the way he had presented his abilities in his affidavits or to doctors.

36The defendant submitted that some of the responses given by the plaintiff in cross-examination regarding what was shown on the surveillance were not believable.  For instance, the plaintiff’s suggestion that the footage showed his partner doing more than him.[16]

[16]T57

The Plaintiff’s evidence

37The defendant submitted that the plaintiff exaggerated his level of incapacity, and his evidence was unbelievable at times.  Further, that he was evasive and belligerent.

38In essence, it was said that the plaintiff told several doctors that he could no longer perform various activities when that was an exaggeration.  By way of examples:

·        the plaintiff agreed that he told Dr Anthony Sheehan, psychiatrist, that he had to give up his hobbies such as building, painting, fixing cars, gardening and cutting wood because of his shoulder injuries;[17]

·        the plaintiff agreed he told Mr Thomas Kossmann, orthopaedic surgeon, that because of his shoulder injuries, he needed his partner to take care of the household chores and the garden;[18]

·        it was put to the plaintiff that he told his GP in December 2022 that his shoulders were not too bad and he was able to do things like mowing the lawn, working on his car and doing woodwork.[19]  The plaintiff’s evidence was that he might have told his GP that he enjoyed those activities, but did not tell him he was doing them; and

·        the plaintiff agreed that he told Dr Mary Wyatt, occupational physician, that he pushes the vacuum cleaner and mop forwards only, because a back-and-forth motion aggravates his pain.[20]  When the plaintiff was asked if he was saying that he could not mop back and forth, his response was:

“It gives me too much problem and puts me out of action for everything.”[21]

(sic)

[17]T38

[18]T40

[19]T40-41

[20]T43-44

[21]T44

39The defendant submitted that an example of the plaintiff’s evasiveness was his willingness to speculate as to things that may have influenced his presentation to various doctors – such as activities he may have done prior to a medical assessment, or the distance he had to drive to a medical assessment.

Conclusions regarding the reliability of the Plaintiff

40The plaintiff impressed me as an unsophisticated man and a straightforward witness.  There were occasions where his answers in cross-examination could be described as non-responsive and somewhat argumentative.  I formed the view that this was more likely to be an unfortunate consequence of the stress of being cross-examined rather than an attempt to be unhelpful.

41I find that the plaintiff’s assertion that he tries to do tasks around the home, including gardening and housework, but struggles to do so and often “pays” for it afterwards, was not a new claim.  The plaintiff’s affidavit refers to “struggling” to undertake activities.  Prior to being shown the surveillance footage, the plaintiff’s evidence was replete with references to “trying” to do things.[22]

[22]See T33, T34, T35, T36, T37, T38, T42, T63, T73, T74 and T80

42I am fortified in my view as to the plaintiff’s reliability by the fact that a number of doctors commented on the plaintiff’s straightforward presentation.  For example Dr Wyatt noted “Mr Bergin attended as a generally straightforward man.  I did not find any inconsistencies noted on the examination and I felt his residual symptoms were consistent with the nature of his medical condition.”[23]  Dr Doig also found the clinical history was consistent with the plaintiff’s presentation.[24]

[23]Defendant’s Amended Court Book (“DACB”) 10

[24]DACB 36

43Additionally, the fact that the plaintiff’s partner does the lion’s share of housework and gardening is supported by her affidavit.[25]

[25]PACB 37

44As to the surveillance footage, it must be viewed in context.  Four points are particularly relevant here.

45First, the surveillance footage is very brief.  It is a small snapshot taken on a single day.  It shows the plaintiff engaging in reasonably vigorous activity for just three minutes or so. 

46Second, in addition to the 27 hours of surveillance undertaken in April and May 2022, the plaintiff was subjected to surveillance for a period of ten hours over three days in February 2023.  He was sighted briefly on one day.[26]  This tends to support relative inactivity.

[26]T102

47Third, it became clear during re-examination that the plaintiff had been particularly inactive in the days leading up to 8 April 2022 because of his stroke. 

48Fourth, there is no evidence of the plaintiff undertaking any strenuous activities after going to the tip.  The footage shows the plaintiff’s partner driving the plaintiff’s car after the trailer was unloaded – something that the plaintiff said, and I accept, he only permits if he is incapacitated in some way.[27]  Further, the plaintiff’s car was outside his house on 9, 13 and 14 April 2022, however, the plaintiff was not seen on those dates.

[27]T52-53 and T87

49I find that some of the plaintiff’s responses regarding the surveillance footage revealed that he had a different perception of what it showed.  For instance, that his partner was doing more than him.  I do not find that such evidence significantly affects the plaintiff’s reliability, because they were both actively clearing the trailer and their relative exertion is capable of different descriptions. 

50When the video surveillance is analysed in context, I find that the footage does not undermine the plaintiff’s credit or his claimed consequences from the injuries to his left and/or right shoulder.  The duration and nature of the activities the plaintiff was seen to perform in the video surveillance are not materially at odds with the plaintiff’s account of his incapacity.

51Overall, I do not have any significant doubts about the plaintiff’s credibility or reliability.  I consider that in determining this application, I can rely on the plaintiff’s evidence in assessing the seriousness of the impairment consequences caused by each of his shoulder injuries.

Impairment consequences

52The defendant’s primary submission was that the plaintiff’s affidavits, his histories to doctors and much of the medical evidence impermissibly aggregated the impairment consequences of the injuries to both shoulders.  This is correct.  However, Dr Graeme Doig, orthopaedic surgeon, and the occupational physicians, Dr James Rowe and Dr Mary Wyatt, were asked to opine upon each shoulder separately and did so.  Each of those specialists found that the plaintiff presented with similar restrictions in each shoulder.

53The plaintiff relied upon three reports from Dr Rowe.[28]  He examined the plaintiff only once, for the purpose of the first report.  The first two reports aggregated the impairment consequences of both shoulders.  He opined that the plaintiff was permanently unfit to work because of his bilateral shoulder injuries.

[28]PACB 108, 116 and 147

54Just prior to the hearing of this application the plaintiff’s solicitors asked Dr Rowe to provide a second supplementary report.  Dr Rowe then stated that the plaintiff was permanently unfit to work because of the impairment of each shoulder considered separately.

55The defendant relied upon three reports from Dr Doig.[29]  He first assessed the plaintiff in November 2020 for his impairment benefit claim.  He re-examined the plaintiff in May 2022.  He found that the plaintiff’s active range of motion in each shoulder had deteriorated since his previous examination.  His diagnosis was of “bilateral rotator cuff tears with a less than satisfactory outcome from surgery”.[30]  The prognosis was for the plaintiff’s condition to remain much the same.

[29]DACB 15, 23 and 87

[30]DACB 32

56Dr Doig’s opinion was that the plaintiff’s right shoulder impairment consequences rendered him unfit for overhead work.  He should not lift, push, or pull anything greater than 5 kilograms at or below waist height.  Dr Doig’s opinion was the same regarding the plaintiff’s left shoulder impairment.

57The defendant also relied upon a report of Dr Wyatt dated 6 December 2022.[31]  On examination, Dr Wyatt found that the range of movement in the plaintiff’s right and left shoulders was the same.  She noted that the plaintiff described his level of pain and restriction as being much the same in each shoulder.  Dr Wyatt opined that the plaintiff was permanently incapacitated from performing repeated outreaching or work above shoulder height with his right arm.  Further, he ought not to be required to lift over 5 to 8 kilograms repetitively or perform highly repetitive tasks with his right arm.  He was restricted in the same way because of his left shoulder impairment.

[31]DACB 2

58The defendant invited me to find that Dr Wyatt aggregated the shoulder impairments when expressing her opinions.  I find that interpretation of Dr Wyatt’s report is not reasonably open.

59I prefer the opinions of Dr Doig and Dr Wyatt as to the impairment consequences of the plaintiff’s shoulder injuries.  Their examinations were conducted with separate consideration of impairment in mind.  Whereas Dr Rowe’s third report was provided without further examination of the plaintiff.

Disentanglement of impairment consequences caused by the Plaintiff’s left knee

60The plaintiff has had problems with his left knee for many years.  He first injured it in a motorcycle accident in 1981.  He further injured his knee in 1991 when a gas bottle fell onto it.  The plaintiff required surgery and had two or three years off work due to his left knee injury at that time.  In 2003, the plaintiff aggravated his left knee injury climbing ladders in the course of his work as a self-employed painter.  He underwent an arthroscopy and required some months off work.  The plaintiff has been prescribed Panadeine Forte for pain for his left knee injury continuously since. 

61The defendant submitted that the plaintiff’s left knee problem is restricting his capacity to work and the plaintiff has not disentangled impairment consequences referable to the knee from those caused by each shoulder.

62The plaintiff suffered from his left knee problem throughout his many years of employment with the defendant.  It did not stop him working in that time. 

63The issue relevant to this application is whether the plaintiff has satisfied his onus of establishing that the impairment consequences of his left and/or right shoulder injury satisfy the threshold.  The Court is not required to assess loss of earning capacity, as in a claim for damages.[32]

[32]Acir v Frosster Pty Ltd [2009] VSCA 454, paragraph [172]

64I find the medical evidence does enable me to determine the impairment consequences of each shoulder injury separately from impairment consequences caused by the plaintiff’s left knee injury.

Work capacity

65The plaintiff contended that he has no realistic “after injury” earning capacity by reason of each shoulder impairment considered separately.  Alternatively, he could not work more than 26 hours per week in suitable employment.

66The defendant submitted that if the Court found that the evidence permitted the impairment consequences of each shoulder injury to be identified separately, the plaintiff had not satisfied his onus of establishing that he is permanently incapable of earning at least 60 per cent of his “without injury” earnings in respect of either shoulder. 

67For the plaintiff to succeed in his claim for the loss of earning capacity consequence, he must establish:

(a)   his loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable (the narrative test);

(b) he has a loss of earning capacity of 40 per cent or more measured as set out in s325(2)(f) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”); and

(c)   after the date of the hearing, he will continue permanently to have a loss of earning capacity productive of a financial loss of 40 per cent or more.

68The parties agreed that:

(a)   the 60 per cent figure is $35,959 per annum or $768 per week;[33]

(b)   the plaintiff has the aptitude to undertake suitable employment as a  process worker, product assembler and pathology courier;

(c)   those roles are available in the plaintiff’s area; and

(d)   if the plaintiff were capable of working in any of the roles for 27 hours or more per week, he would not satisfy the statutory formula.[34]

[33]T98

[34]T150-151

69I am required to take a “real world” approach to the plaintiff’s employment capacity.  It requires more than a physical capacity to engage in a task or tasks.[35]

[35]Richter v Driscoll (2016) 51 VR 95

70There is no issue on the medical evidence that the plaintiff is unfit for his pre-injury duties.  There are different opinions as to whether the plaintiff has a capacity for suitable employment, and if he does, as to the number of hours he could work.  As I must consider each shoulder separately, I will not refer to the medical evidence which aggregates the impairment consequences of each shoulder injury.

71Dr Rowe opined in his most recent report that the plaintiff is permanently unfit to undertake any suitable employment because of the impairment in his left shoulder and also because of the impairment in his right shoulder.  I find this is unduly pessimistic for the following reasons. 

72Dr Rowe examined the plaintiff on one occasion, on 24 March 2022.  No new examination was undertaken for the purpose of providing his most recent opinion.  When he examined the plaintiff, he was not being asked to consider the shoulder impairments separately.  Furthermore, I note that Dr Rowe found very significantly reduced grip strength in the plaintiff’s right hand on examination (just 2 kilograms compared to 30 kilograms in the left) and very restricted ranges of movement.  Those findings are in contrast to the plaintiff’s presentations on examination by Dr Doig and Dr Wyatt.  I find that his examination findings caused Dr Rowe to take an unduly gloomy view of the plaintiff’s future work capacity.

73Dr Doig opined that the plaintiff had a capacity for suitable employment and should be able to upgrade to full-time hours.  He held the same opinion separately with respect to each shoulder impairment.  I note, however, that Dr Doig recommended that the plaintiff start working on alternate days, three days per week, for four hours per day and “upgrading as tolerated”.  Dr Doig found that the plaintiff’s condition had probably deteriorated in the interval between his examinations.  His prognosis was that the plaintiff’s condition was unlikely to improve.  Given those conclusions, I find that Dr Doig’s suggestion that full-time employment was likely, is unrealistic.  It also pays insufficient regard to the plaintiff’s evidence, which I accept, regarding the effect upon him of sustained activity.

74Dr Wyatt opined that the impairment consequences of each shoulder separately rendered the plaintiff permanently unfit for his pre-injury duties and fit only for part-time suitable employment.

75The defendant submitted the plaintiff presented with gross restriction to Dr Wyatt.  I understand the contention to be that the plaintiff was exaggerating his level of incapacity to her.  I do not accept that submission, particularly noting that Dr Wyatt did not identify any discord between the plaintiff’s presentation and his medical condition.

76The defendant suggested that if Dr Wyatt had seen the surveillance, she might have had a different view about the plaintiff’s work capacity.[36]  This is speculative.  Surveillance was obtained by the defendant in May 2022.  Dr Wyatt’s report was commissioned in November 2022.  If the defendant had wished Dr Wyatt to comment on the surveillance it could have been sent to her to do so.  It was not.  In my view, it is significant that no opportunity was given to Dr Wyatt to contrast the plaintiff’s presentation to her with his depiction in the surveillance film.[37]

[36]T121

[37]Church v Echuca Regional Health (2008) 20 VR 566, paragraph [100]

77Dr Wyatt thought the plaintiff could perform suitable duties for 20 to 30 hours a week.  I accept Dr Wyatt’s opinion that the plaintiff has a work capacity for suitable employment.  However, I find that she has been somewhat optimistic as to the extent of the plaintiff’s work capacity.  I do so because I accept the plaintiff’s account of the impact upon him of performing any sustained activity involving either shoulder. 

78The issue is whether the plaintiff has established that because of either shoulder impairment, he is permanently unable to undertake 27 hours or more a week in suitable employment, even with rehabilitation and work hardening.

79The plaintiff had a solid work history in manual employment.  He has not worked in any full-time capacity since early 2018.  In the extended period of his return to work with the defendant after his surgeries, the plaintiff was unable to progress beyond working two shifts a week on light duties.

80I find that the plaintiff is motivated to work.  He resumed work with the defendant after his surgeries and persevered, even when he was not able to return to his pre-injury duties or hours.  He is about to have an appointment with a disability employment agency in an effort to find and try some suitable work.  The plaintiff has hopes of being able to teach some of the hands-on skills he possesses.  He would require a diploma to do so, and I find his dyslexia and difficulties reading and writing would be a significant impediment to gaining such a qualification. 

81It is a matter of judgment of the Court as to how many hours the plaintiff is fit to work in the context of an assessment required to apply a gateway provision.  I must make a determination as to incapacity after a consideration of the whole of the evidence.[38]

[38]Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545, paragraph [89]

82The plaintiff’s condition in each shoulder has been either stable or slightly deteriorating for some years. 

83I find that the evidence establishes that the plaintiff is permanently unfit for his pre-injury duties.  He does have a capacity for some part-time employment.  I find that he is unlikely to progress beyond working three days a week as he would require two rest days during the week in order to maintain employment.  It is unlikely that the plaintiff would be able to work more than six to eight hours per day.  Therefore, he has established that he is permanently incapable of progressing beyond 24 hours per week in suitable employment on a consistent and reliable basis by reason of the impairment consequences of his left shoulder injury.  I separately make the same finding in relation to his right shoulder injury. 

84Given the parties’ agreement set out at paragraph 68 above, the plaintiff has satisfied the statutory formula separately with respect to each shoulder.

85I find that the plaintiff’s inability to return to his pre-injury employment, or work 27 or more hours a week in suitable employment, by reason of his left shoulder injury, is a “very considerable” loss of earning capacity consequence for the purposes of s352(2)(c)(ii) of the Act. I make the same finding in relation to his right shoulder injury.

Pain and suffering

86Having determined that the plaintiff is entitled to leave to claim loss of earning capacity damages, it is unnecessary to decide the issue of leave for pain and suffering damages.[39]

[39]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170, paragraph [63]

Conclusion

87For the reasons given, leave is granted to the plaintiff to commence a proceeding for pecuniary loss damages.  He is also entitled to bring a proceeding to recover damages for pain and suffering.

88I will hear the parties as to the question of costs.

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