Cachia v Victorian WorkCover Authority
[2021] VCC 1925
•8 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-00702
| VICTOR CACHIA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 and 23 November 2021 | |
DATE OF JUDGMENT: | 8 December 2021 | |
CASE MAY BE CITED AS: | Cachia v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1925 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of left shoulder – where previous claim for impairment of right shoulder
Cases Cited:Museums Victoria v Susnjara [2021] VSCA 166; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram QC with Mr E Makowski | Arnold Thomas & Becker |
| For the Defendant | Mr D McWilliams | Wisewould Mahony |
HER HONOUR:
1Victor Cachia’s last day of work as a maintenance manager for the defendant was on 10 February 2015.[1] On 24 July 2015, Mr Cachia lodged a WorkCover claim form with respect to an injury to his left shoulder. On 22 March 2016, he lodged an impairment benefits claim. On 13 October 2020, he lodged a serious injury application. After his application was rejected by the Authority, Mr Cachia commenced this proceeding, seeking the leave of the Court to bring proceedings for damages against the defendant on the grounds that his left shoulder injury is a “serious injury”.
[1]This was his last day of work, although his actual employment does not appear to have been terminated until January 2016
2This is not the first serious injury application that Mr Cachia has made with respect to an injury suffered as a result of his employment with the defendant. On 22 April 2015, Mr Cachia made a serious injury application with respect to his right shoulder. In the right shoulder application, Mr Cachia claimed that he injured his right shoulder both in a distinct incident in July 2012 and also as a result of heavy and repetitive duties in the course of his employment. The Authority granted a serious injury certificate with respect to the right shoulder application on 19 August 2015; and his claim for damages was resolved by consent on 9 December 2015.
3When he commenced these proceedings, Mr Cachia also relied upon both a distinct incident (this time on around 14 January 2015) and heavy and repetitive duties in the course of his employment as causative of his left shoulder injury. However, by the time of the hearing, Mr Cachia relied solely upon the incident on 14 January 2015 as the cause of his left shoulder injury. He said that his left shoulder pain onset on this day, while he was moving gas bottles onto a ute.
4The defendant accepts that Mr Cachia has injured his left shoulder. However, the defendant submits that the Court should not be satisfied that Mr Cachia injured his left shoulder as a result of moving gas bottles onto a ute on about 14 January 2015. The defendant submits that this incident was invented or exaggerated by Mr Cachia to meet the difficulty that, by reason of the right shoulder application, he was prevented from making a second serious injury application with respect to an injury arising from the heavy and repetitive duties in the course of his employment more generally.[2] The defendant submits that Mr Cachia’s claim must fail unless the Court is satisfied that Mr Cachia injured his left shoulder as a result, specifically, of the gas bottle incident on 14 January 2015.
[2] Relying upon Museums Victoria v Susnjara [2021] VSCA 166
5There are two issues in this proceeding:
(a) did Mr Cachia’s left shoulder injury result from moving gas bottles onto a ute on about 14 January 2015; and
(b) if it did, is the left shoulder injury a serious injury?
Was Mr Cachia’s left shoulder injury the result of an incident on 14 January 2015?
6Mr Cachia gave quite detailed and specific evidence about the gas bottle incident on 14 January 2015. He said that when he returned from leave, he found that a number of gas bottles had been placed outside his office. He says that he asked for them to be removed, but they were not. He says that he was unable to perform welding in the area because of the safety risk. In the end, he was required to load about fifteen gas bottles onto the back of a ute. He had some assistance from John Harding, a director of the defendant, with this task. He then unloaded them at the Supa Gas Depot. Six of the gas bottles were filled and he loaded those bottles back onto the ute. The remaining bottles were left at Supa Gas. He unloaded the six full gas bottles at the defendant’s equipment shed.
7Mr Cachia says that he did all of these tasks with his left arm because of his pre-existing right shoulder injury. He says that, in the course of handling the gas bottles, he felt his shoulder “give way” and a “strange sensation” with “significant pain”.[3]
[3]Further Affidavit of Victor Cachia, sworn 12 October 2021, paragraph [4], Plaintiff’s Court Book (“PCB”) 38
8The defendant submitted that I should not accept that this incident occurred at all. Alternatively, it submitted that the incident did not have the significance accorded to it by Mr Cachia; and I should not be satisfied that it was causative of the left shoulder injury. Counsel for the defendant relied upon:
(a) what he described as Mr Cachia’s non-responsive answers, lack of frankness and shifting answers in cross-examination;
(b) Mr Cachia’s failure to report the injury to his employer at the time, despite being on the OH&S committee and having previously made a report in relation to his right shoulder injury;
(c) Mr Cachia’s lack of complaint to his general practitioner (“GP”) of shoulder pain until March 2015 (despite visits to his GP for other reasons);
(d) the lack of evidence of treatment of Mr Cachia’s left shoulder from a physiotherapist (or any other medical treatment) in January 2015 or February 2015;
(e) Mr Cachia’s claim form in relation to the left shoulder injury, completed with assistance of his solicitors on 24 July 2015, which stated that his left shoulder injury occurred due to:
“Heavy and repetitive duties during the course of my employment
overuse injury due to right shoulder injury”[4]
[4] Defendant’s Court Book (“DCB”) 89
and provided a date and time of injury of 13 August 2012 to 10 February 2015; and
(f) the histories provided and opinions given by the various treating and medico-legal practitioners, including:
(i)his GP’s opinion that there was no specific trigger event for the left shoulder injury;
(ii)his treating surgeon’s opinion that the left shoulder injury resulted from repeated heavy lifting (as opposed to the incident on 14 January 2015);
(iii)the lack of reference to the gas-bottle incident in the recorded history provided to medico-legal psychiatrist, Dr Leston Walton, on 18 August 2015;
(iv)the opinion of medico-legal occupational physician, Dr David Middleton, on 9 February 2016 that the left shoulder injury was caused by overuse following the right shoulder injury; and
(v)the opinion of medico-legal orthopaedic surgeon, Mr Rodney Simm, that he was unable to diagnose the cause of the left shoulder injury.
9For the following reasons, I have concluded that Mr Cachia was an honest witness, not prone to exaggeration. I have concluded that I should accept his account of having experienced onset of significant left shoulder pain in the course of the gas-bottle incident.
10Firstly, Mr Cachia did struggle on occasion to provide direct answers to questions and sometimes answered questions with justifications rather than responsive answers. He appears to have been confused by the questions at times, for example initially confirming that the handwriting on the claim form was his, when it was not. However, he was also very frank at times and made appropriate concessions. For example, he readily accepted the fact that he signed the claim form meant that he was responsible for whatever was on it. He accepted that the fact that his GP did not record any reference to the gas-bottle incident likely meant he did not tell the GP about that incident. He did not exaggerate his symptoms – indeed he seemed almost reluctant to describe them. For example, when pressed by counsel for the defendant to describe his pain as “excruciating”, he would only describe it as a sharp pain. I did not observe anything in his demeanour or manner of answering questions that caused me to doubt the credibility of his evidence. To the contrary, he appeared to be an honest and straightforward, if stressed, man.
11Secondly, I do have some general concerns as to the strength of Mr Cachia’s recall of events of six years ago. He admitted to having a poor recall of events of five to six years ago. His answer to questions about consultations and conversations with doctors was often that he could not recall. In his first affidavit, his evidence was that the gas-bottle incident occurred in February 2015, but he subsequently changed this to 14 January 2015. In oral evidence, he could not recall the date on which he stopped working for the defendant. However, it is not particularly surprising that he could not remember dates and other details from six years ago. On the other hand, his evidence in relation to the gas-bottle incident was detailed and specific. It would be quite extraordinary if this were a confabulation, in the sense of a completely false memory. In any event, Mr Cachia described the gas-bottle incident in February 2016 to Dr Middleton; in March 2016 in his impairment benefit claim form; and in May 2016 to his physiotherapist, when events would have been much fresher in his memory. Given this, my general concerns as to the strength of his recall of events six years ago do not impact significantly on the reliability of his specific evidence in relation to the gas-bottle incident.
12Thirdly, I accept that Mr Cachia did not report the injury to his left shoulder to his employer at the time; or to his GP, until March 2015. I am also not satisfied (in the absence of evidence or clinical records from the physiotherapist) that he told his physiotherapist immediately after the gas bottle incident. However, it is apparent from his own evidence, and the GP’s clinical notes, that this was an extremely stressful period for Mr Cachia. He was suffering ongoing difficulties with his right shoulder; he was feeling that he was treated unfairly at work and not receiving the support he required; he was upset about the delays in progressing his WorkCover claim (for his right shoulder); he was arguing with a manager; he was taking periods of stress leave; and he was particularly distressed about what he considered to be a serious health and safety incident involving a trailer. His final day of attending the workplace involved a verbal altercation with a senior member of staff in relation to that incident. I accept that, in this context, Mr Cachia may have neglected to put in a report to his employer about his left shoulder; and may have delayed until it was apparent that his left shoulder would not resolve before raising it with his physiotherapist or GP. I also accept that, when he did mention his left shoulder to his GP, his GP may not have taken a complete and accurate history in relation to the cause of that injury, given Mr Cachia’s stressed and agitated presentation and other pressing concerns.
13Fourthly, I have considered the lack of any reference to the gas-bottle incident in the histories recorded by Mr Ian Jones, Dr Michael Bloom and Dr Walton, all medico-legal experts retained by the defendant. Although each of these doctors refer to Mr Cachia’s left shoulder symptoms, it appears that they were retained primarily in relation to Mr Cachia’s right shoulder injury. In this context, they may not have specifically questioned Mr Cachia about the onset of left shoulder symptoms. Any failure by Mr Cachia to describe the gas-bottle incident to them does not impact significantly on the credibility or reliability of Mr Cachia’s evidence.
14Fifthly, I have considered the lack of any reference to the gas-bottle incident in the claim form signed by Mr Cachia and dated 24 July 2015. That claim form describes his left shoulder injury as having occurred due to:
“Heavy & repetitive duties during the course of my employment
overuse injury due to right shoulder injury”[5]
[5] DCB 89
and the date and time of injury as from “13/08/12 to 10/02/15”.[6]
[6] DCB 89
15Mr Cachia very frankly accepted that he had signed this form and that (although he could not remember doing so), it could be assumed that he considered the form to be accurate. However, I accept that he relied upon his solicitors to complete the form and that he may have understood “[h]eavy & repetitive duties during the course of my employment” to be a reference to the gas-bottle incident, an incident which did in fact occur between 13 August 2012 and 10 February 2015. I also note that the gas-bottle incident was subsequently referred to in the Impairment Benefits Claim Form signed by him and dated 22 March 2016.
16Sixthly, I found the defendant’s submission that Mr Cachia invented (or exaggerated) the gas-bottle incident in order to overcome the difficulty that a claim for injury suffered in the course of his employment was barred by his previous right shoulder claim, implausible. Mr Cachia lacked the sophistication for such a deception, which would entail a detailed understanding of the WorkCover legislation; and the nature and prospects of success of a defence first raised by the defendant to his Magistrates’ Court claim for benefits in January 2016 (not to mention some prescience of the decision of the Court of Appeal in Museums Victoria v Susnjara).[7] In any event, Mr Cachia showed no signs of exaggeration of his left shoulder symptoms (whether at the time of the gas bottle incident or subsequently) in the presentation of his evidence.
[7] [2021] VSCA 166
17Seventhly, Mr Cachia’s account is corroborated by his wife, who confirms that in January 2015 he described experiencing left shoulder pain when lifting gas bottles at work. It is also corroborated by the evidence of co-worker Maurice Gaskell, who states that he was the person who moved the gas bottles to the front of Mr Cachia’s office and left them there. Mr Gaskell says that he did this on the instructions of George Debenish, a construction manager of the defendant.
18Finally, to the extent of any conflict, I prefer Mr Cachia’s account of the gas bottle incident to the evidence of the defendant’s lay witnesses. In his affidavit of 11 February 2021, Robert Keogh, a director of the defendant, says that he does not recall the gas bottles being stored by Mr Cachia’s office. In his affidavit of 28 September 2021, Ben Norman, an employee who says it was his job to assist Mr Cachia with his tasks says that “I am not aware”[8] of gas bottles being placed by Mr Cachia’s office door and that it “makes no sense to me”.[9] John Harding, another director of the defendant who swore an affidavit on 19 October 2021, only denies standing by and watching Mr Cachia struggle to move gas bottles (rather than specifically denying that Mr Cachia moved the gas bottles). All of these witnesses are giving evidence about events of more than six years ago. These events would not have had the same significance for these witnesses as they did for Mr Cachia. None of the defendant’s lay witnesses go so far as to specifically deny that gas bottles were stored outside Mr Cachia’s office or that Mr Cachia might have been tasked with moving those gas bottles. Mr Debenish, the person who Mr Gaskell said instructed him to move the gas bottles to the front of Mr Cachia’s office, did not give evidence.
[8] DCB 12
[9] DCB 12
19I turn, then, to consider the medical opinions in relation to causation, in light of my factual finding that the gas-bottle incident occurred as described by Mr Cachia.
20The most compelling evidence in relation to causation was that of the Medical Panel (“the Panel”) opinion dated 13 July 2018, which was provided in response to a referral from the Magistrates’ Court in WorkCover benefit proceedings brought by Mr Cachia. Although that opinion is not binding in this proceeding, it is admissible.[10] It provides the joint opinion of two independent medico-legal practitioners, an occupational physician and an orthopaedic surgeon.
[10] Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 at paragraphs [56]-[64]
21I have considered the fact that the defendant could not compel the Panel members to attend for cross-examination. However, cross-examination of medical experts is not ordinarily permitted in a serious injury application. There was no application to cross-examine any medical experts in this case. In this context, the lack of cross-examination provides no reason to accord less weight to the Panel’s opinion.
22The Panel examined Mr Cachia on 4 June 2018 and took a history from him. The precise list of documents provided to the Panel was not in evidence. However, it is clear that the Panel was also provided with relevant documents, including claim forms, radiology and submissions from the parties.
23The Panel was asked to provide an opinion (among other things) as to:
(a) what extent the right shoulder injury materially contributed to his left shoulder injury; and
(b) what extent Mr Cachia’s employment in or about February 2015 was a significant contributing factor to his left shoulder injury.
24In the course of answering these questions, the Panel accepted Mr Cachia’s account of the gas-bottle incident and concluded:
“… that the actions with handling the gas bottles on and off the utility vehicle with his left arm was the mechanism of injury leading to the onset of the left shoulder condition….
… The Panel however did not identify any other work tasks performed by [Mr Cachia] which were likely to have caused or affected [Mr Cachia’s] left shoulder condition. The Panel concluded therefore that [Mr Cachia’s] employment was not otherwise a significant contributing factor to the alleged injury to the left shoulder or to any alleged recurrence, aggravation, acceleration, exacerbation, or deterioration of any pre-existing injury or disease of the left shoulder, in any way.”[11]
[11] Plaintiff’s Court Book (“PCB”) 116
25These views are directly relevant to the issue which the Court needs to determine in this proceeding.
26The opinion of the Panel is supported by the opinion of Mr Ash Chehata, a medico-legal orthopaedic surgeon retained by the plaintiff. In his first report dated 27 October 2016, he says that left shoulder injury is a result of repetitive heavy lifting with his left arm during the course of his employment “precipitated by the repetitive lifting of the gas bottles”.[12] In his second report he says:
“There is a clear relationship between the initial injury of lifting up the gas bottles and the requirement for operative intervention and the subsequent loss of range of movement and ongoing pain in the shoulder.”[13]
[12] PCB 84, see also PCB 87-88
[13] PCB 92
27In his third report, Mr Chehata is asked specifically whether the gas-bottle incident was a significant contributing factor to the left shoulder injury. He states:
“It would appear the repetitive and sudden lifting of the gas bottles was the significant precipitating factor to the development of recalcitrant bursitis … and he has never fully recovered.”[14]
[14] PCB 99
28Mr Chehata then considers the Panel opinion and repeats that, in his opinion, the gas-bottle incident “remains the significant contributing factor to the left shoulder injury”.[15]
[15] PCB 99
29Mr Simm, a medico-legal orthopaedic surgeon retained by the defendant, expressed the opinion that he “was not able to establish a diagnosis”[16] for Mr Cachia’s left shoulder pain but that there was “no direct relationship between left shoulder symptoms and his employment”.[17] However, there is no reference to the gas bottle incident in Mr Simm’s report. His opinion is premised on an assumption that there was “spontaneous” onset of left shoulder pain “after he ceased work in early 2015”,[18] apparently in reliance on the GPs clinical records. This is contrary to my factual findings.
[16] DCB 39
[17] PCB 40
[18] DCB 39
30Counsel for the defendant submitted that I should nevertheless prefer the opinion of Mr Simm as he took into account the fact that Mr Cachia’s rotator cuff was observed to be intact upon operation. However, the diagnoses of the medical panel, and of Mr Chehata in his second and third reports, are not expressed to be dependent upon the existence of a rotator cuff tear. It is also apparent from the medical panel’s report[19] and the first report of Mr Chehata[20] that they considered the nature of the operation. Indeed, Mr Chehata specifically referred to there being “an assessment of the rotator cuff felt to be intact”.[21]
[19] PCB 113
[20] PCB 84
[21] PCB 84
31I prefer the opinions of the Panel and Mr Chehata to those of Mr Simm.
32Dr David Middleton, in his report dated 9 February 2016, expresses the view that “where the initial injury to the right shoulder forced Mr Cachia to use his left shoulder as he had never done previously…there is…a direct relationship of his employment with…the injuries…to the left shoulder”.[22] Dr Middleton was aware of the gas bottle incident. It is not clear from his opinion the extent to which this is a reference to the gas bottle incident or to other duties. To the extent of conflict, I prefer the more specific opinions of the Panel and Mr Chehata to those of Dr Middleton.
[22] PCB 83
33Mr Cachia’s treating GP expresses the opinion that Mr Cachia’s left shoulder injury may have been an overuse injury due to being unable to use his right shoulder. The GP based this view on Mr Cachia’s failure to “report a specific trigger event leading to his left shoulder injury”.[23] I have already addressed above the question of whether I should reject Mr Cachia’s evidence because of his failure to describe the gas bottle incident to his GP; and concluded that I should not. As a matter of fact, I have found that there was a specific trigger event for Mr Cachia’s left shoulder symptoms. Accordingly, I prefer the views of the Panel and Mr Chehata.
[23] DCB 88
34Mr Cachia’s treating orthopaedic surgeon, Dr Douglas Li, was told about the gas bottle incident in an intake form completed in about April 2016.[24] He was then asked by Mr Cachia’s solicitors, in October 2016, whether the left shoulder injury was “caused as a result of [Mr Cachia’s] employment from February 2012 to May 2015”.[25] His response was “I have taken into account his age and the repeated heavy lifting in his employment and have come to the conclusion that his employment has been a significant contributor to his left shoulder condition”.[26] The defendant submitted that this opinion was inconsistent with the gas bottle incident having caused the left shoulder injury. The defendant submitted that Dr Li’s views should be given more weight than the medico-legal experts as they were the views of Mr Cachia’s treating orthopaedic surgeon. However, Dr Li does not appear to have reviewed Mr Cachia specifically for the purposes of preparation of this report. He does not appear to have been asked whether the gas bottle incident was causative of Mr Cachia’s left shoulder injury and does not mention it in his report. He does not provide any further detail of what he means by “repeated heavy lifting”. This may in fact have been a reference to the repeated heavy lifting of gas bottles described in Mr Cachia’s intake form. To the extent of conflict, I prefer the opinions of the Panel and Mr Chehata, who performed assessments of, and took histories from, Mr Cachia specifically for the purpose of determining the medico-legal question of causation, rather than for the purposes of diagnosis and treatment.
[24] PCB50 and Transcript (“T”) 90, Lines (“L”) 24-31
[25] PCB 62 and DCB 67
[26] PCB62 and DCB 68
35In conclusion, the defendant accepts that Mr Cachia has suffered an injury to his left shoulder.[27] I have found, as a matter of fact, that Mr Cachia’s left shoulder pain onset during the gas bottle incident. There is therefore a temporal nexus between the gas bottle incident and the onset of pain. Both the Panel and Mr Chehata accepted that the gas-bottle incident was causative of the left shoulder injury. To the extent of conflict, I prefer their opinions to the opinions of Mr Cachia’s treating practitioners and the opinion of Mr Simm. Accordingly, I accept that it is more likely than not that the left shoulder injury resulted from the gas-bottle incident.
[27] T87, L12-13
Is the left shoulder injury a serious injury?
36This is a difficult question.
37I must take into account the fact that by the time of Mr Cachia’s left shoulder injury, he was already under significant restrictions due to his right shoulder injury. His evidence was that, due to his right shoulder injury:
(a) he stopped working for the defendant;
(b) he was unable to golf;
(c) he was unable to fish;
(d) he was unable to safely boat and unable to complete work on it;
(e) he was unable to play table tennis;
(f) he was severely restricted in the handyman and mechanical tasks he could perform;
(g) he was restricted in how he played with his grandchildren;
(h) he avoided swimming; and
(i) he had some difficulty putting on T-shirts.
38Mr Cachia’s evidence in relation to the specific consequences of his left shoulder injury was also remarkable in its brevity. Although he did not lack for words when talking about his concerns about workplace safety, when it came to his description of his symptoms, he was far less articulate. There was no melodrama or exaggeration of his symptoms. To the contrary, Mr Cachia was quite unforthcoming when asked to talk about the consequences of his left shoulder injury to him personally. In his words:
“It - it - it’s very bad. I - I - I feel useless, I feel - I - I - I can’t do it. I - I - I - I couldn’t do what I normally do. I couldn’t help my wife the way I used to. It - it - it’s turned around, she does it for me now instead of me helping her. It’s - it’s - it’s - it’s very - it’s - it’s - it’s - it’s very - it’s very, um - - - [Mr Cachia was visibly distressed by this stage and required a few moments to compose himself]”[28]
[28] T73, L18-24
39However, having carefully considered all of the evidence, including the direct evidence of Mr Cachia, the evidence of his wife and the symptoms recorded by the various medical practitioners who have provided reports, I am satisfied that, as a result of his left shoulder injury:
(a) Mr Cachia is never free of left shoulder pain. This pain is variable and unpredictable in its severity;
(b) Mr Cachia required left shoulder surgery in May 2016;
(c) Mr Cachia required physiotherapy, although this ceased when Workcover ceased to pay for it;
(d) Mr Cachia is particularly restricted in reaching, pushing or pulling above shoulder height and lifting with his left arm;
(e) Mr Cachia requires assistance showering, drying and dressing (particularly T-shirts with round necks). Aside from some difficulty putting on T-shirts, Mr Cachia was able to largely perform ordinary daily self-care before his left shoulder injury;
(f) if they go shopping together, his wife has to carry any heavy bags;
(g) whereas before his left shoulder injury he had at least one good arm with which to perform activities (albeit his non-dominant arm), he no longer has any good arm. As a result, even simple activities such as eating can be impacted by his pain;
(h) his wife has retired early in order to provide him with necessary care;
(i) Mr Cachia finds these incapacities, and particularly the level of support he requires from his wife, highly distressing;
(j) Mr Cachia’s sleep is severely interrupted. He often sleeps on a recliner in order to avoid waking up his wife. Before his left shoulder injury, he had trouble sleeping on his right shoulder. Now he cannot get comfortable on either his left or his right shoulder. This has led to a significant deterioration in the quality of his sleep; and
(k) the above consequences are likely to be permanent.
40Senior Counsel for Mr Cachia accepted that Mr Cachia ceased his employment with the defendant because of his right shoulder injury. But he relied upon the fact that more recently Mr Cachia had worked in “protected” employment on a part-time basis for a relative. He submitted that Mr Cachia had ceased this part-time work as a result of his left shoulder injury. I am not satisfied that Mr Cachia ceased this work as a result of his left shoulder injury, or that, if he did, it caused him significant “pain and suffering” to do so. It was apparent from Mr Cachia’s evidence that the reason for him ceasing this work was the menial nature of the role and his feeling that he was only being provided with the job as a favour. This was not an occupation which can fairly be described as one which Mr Cachia enjoyed, which has been closed off to him as a result of his left shoulder injury.[29]
[29] Compare Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
41I am also not satisfied that Mr Cachia’s medication use has been significantly increased by his left shoulder pain. In any event, his evidence was that he only used Panadol Osteo and Voltaren from “time to time”.[30]
[30] Plaintiff’s further affidavit, sworn 12 October 2021, paragraph [17], PCB 39
42However, having considered all of the above matters, I am satisfied that Mr Cachia has suffered a serious injury, in the sense that the consequences of his left shoulder injury can fairly be described as “very considerable” and certainly more than “significant” or “marked”. The defendant must take Mr Cachia as it finds him. He was a man with an injured right shoulder, with the incapacities that flowed from that. In that context, injury to his left, and only good, shoulder is much more significant, subjectively, to Mr Cachia than it would be to another person. I am satisfied that Mr Cachia’s left shoulder injury has had a very considerable impact on his capacity to engage in self-care and the ordinary activities of daily living and, in turn, on his sense of dignity. This feeds into my objective assessment that Mr Cachia has suffered a serious injury.
43I will grant leave to bring proceedings for damages. I will also order the defendant to pay the plaintiff’s costs of the proceeding (including reserved costs) in accordance with the WorkCover (litigated claims) Legal Costs Order 2016.
44Given the particular complexities of this proceeding, I will certify for Senior Counsel and fix counsel’s fees at a brief fee of $6,600 per day for two days plus two hours’ special conferences for Senior Counsel and $3,300 per day for two days plus two hours’ special conferences for Junior Counsel. However, I note that many serious injury applications do not justify two counsel. It should not be presumed that I will certify for two counsel in future serious injury applications, particularly those concerning pain and suffering only.
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Certificate
I certify that these 16 pages are a true copy of the reasons for decision of her Honour Judge Tran, delivered on 8 December 2021.
Dated: 8 December 2021
Susan Thomas
Associate to her Honour Judge Tran
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