Chadband, Susan Lee v Catalyst Recruitment Systems Pty

[2010] VCC 117

IN THE COUNTY COURT OF VICTORIA Unrevised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST

SERIOUS INJURY APPLICATION DIVISION

Case No. CI-09-00914

SUSAN LEE CHADBAND	Plaintiff
v
CATALYST RECRUITMENT SYSTEMS PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	25 January 2010
DATE OF JUDGMENT:	18 February 2010
CASE MAY BE CITED AS:	Chadband, Susan Lee v Catalyst Recruitment Systems Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VCC 0117

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(38)((a) and (b) – right upper limb – pain and suffering only – relevant principles.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S J Carson	Maurice Blackburn Pty Ltd
For the Defendant	Mr M J Walsh	Lander & Rogers
HIS HONOUR:

Introduction

1 By way of Originating Motion dated 6 March 2008, Susan Lee Chadband (“the plaintiff”) seeks leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”), to bring common law proceedings to recover damages for an injury to her right shoulder suffered by her on or about 13 December 2005 (“the injury”) arising out of or in the course of her employment with Catalyst Recruitment Systems Pty Ltd (“the defendant”).

2          The plaintiff seeks such leave to bring proceedings for “pain and suffering damages” only within the meaning of s.134AB(37) of the Act.

3          The plaintiff was represented by Mr S Carson of counsel, and the defendant was represented by Mr M Walsh of counsel. The hearing extended over one day, and the following evidence was adduced:

(a)	the plaintiff gave viva voce evidence and was cross-examined;
(b)	the plaintiff tendered the following evidence:

(i)    pages 5–11, 12–15, 31–40 and 42–61 of the Plaintiff’s Court Book (“Exhibit 1”);

(c)

the defendant tendered the following evidence:

(i)	video film taken on 23 April 2009, 19 July 2009, 20 July 2009, 21 July 2009, 5 October 2009, 20 November 2009 and 21 November 2009 (“Exhibit A”);
(ii)	a DVD taken on 28 November 2009 (“Exhibit B”);

(iii) pages 1–3 and 8–36 of the Defendant’s Court Book (“Exhibit C”).

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 s.134AB(37) of the Act: (see s.134AB(19)(a) of the Act).

5          The plaintiff relies on paragraph (a) of the definition of “serious injury”, which reads:

“serious injury means—

(a) permanent serious impairment or loss of a body function ...”

The part of the body said to be impaired is the right arm/shoulder.

6          In order to succeed, the plaintiff must prove on the balance of probabilities that:

(a)	“the injury” suffered by her arose out of or in the course of her employment with the defendant on or after 20 October 1999: (see s.134AB(1) of the Act and Barwon Spinners Pty Ltd and Ors v Podolak (2005) 14 VR 622 at paragraph [11]);
(b)	“the injury” and the resultant impairment are “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”: (see Barwon Spinners (op cit) at paragraph [33]);
(c)	the “consequences” of the impairment of the right arm/shoulder relation to “pain and suffering” are, “when judged by comparison with other cases in the range of possible impairments ... may be fairly described as being more than significant or marked, and as being at least very considerable”: (see s.134AB(38)(a) and (b) of the Act). This test is sometimes referred to as the “narrative test”.

7          In determining the application, the Court:

(a)	must not take into account psychological or psychiatric consequences of “the injury” which can be taken into account only for the purposes of paragraph (c) of the definition of “serious injury”: (see s.134AB(38)(h) of the Act;
(b)	must make the assessment of “serious injury” at the time the application is heard: (see s.134AB(38)(j) of the Act);
(c)	notes that it has been observed that the question of whether any injury satisfies the definition of “serious injury” is largely a question of impression and value judgment: (see Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]);
(d)	must give reasons which are extensive and complete as the Court will give on the trial of an action, and in doing so disclose the pathway of reasoning in dealing with that evidence and the issues raised by the application: (see s.134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566, at paragraphs [89]–[92]).

The Issues

8          In his opening comments and closing address, counsel for the defendant made plain that the only “issue” was whether the consequences suffered by the plaintiff in relation to her right arm/shoulder impairment were “serious” within the meaning of the narrative test: (see generally T6, L6–28; T42, L22– T43 L7).

The Background of the Plaintiff and “the Injury”

9          The plaintiff is a forty-six-year-old (born 7 August 1963) female divorcee who is presently living in a de facto relationship and with her younger teenage daughter from her previous marriage.

10        The plaintiff is naturally right-hand dominant.

11        On leaving school, the plaintiff was employed as a typist/clerk, office worker, and clerical worker, and in particular from 2001 was employed as a full-time receptionist and administrator for a transport company.

12        In about October 2005, the plaintiff commenced employment with the defendant, which is a labour-hire organisation. The plaintiff performed work as a “casual storeperson”, averaging about 24 hours per week.

13        On 13 December 2005, the plaintiff was working at the offices of United Book Distributors in Scoresby when she tripped on a pile of mats, causing her to fall forward and “instinctively put my right arm out as I fell”.

14        Shortly after the fall, the plaintiff became aware that her right shoulder and arm felt painful and weak, and on the following morning she attended hospital where x-rays were undertaken and painkilling medication administered. She consulted her local general practitioner, Dr Carter, who in turn referred her to the orthopaedic surgeon, Mr Simon Bell, who initially examined the plaintiff on 23 January 2006.

15        Mr Bell found pain and weakness on testing the supraspinatus, and an ultrasound undertaken revealed a full-thickness tear of the supraspinatus. On 29 March 2006, Mr Bell performed an arthroscopic subacromial decompression and tenodesis of the right biceps, hoping to repair the tear.

16        After that surgery, the plaintiff had persistent shoulder pain, and a further ultrasound was undertaken in July 2006 which revealed a subdeltoid bursitis.

17        Dr Carter referred the plaintiff for a second opinion to the orthopaedic surgeon, Mr Trung Nguyen.

18        Mr Nguyen initially examined the plaintiff on 9 January 2007 and obtained a history that her main problem was her inability to lift anything above shoulder height. In his report dated 12 November 1997, Mr Nguyen notes that the plaintiff reported that she only occasionally experienced pain at night, had no pain at rest, and that she noted extreme weakness in the right arm when lifting anything above shoulder height: (see page 48 of Exhibit A).

19        Mr Nguyen arranged for the plaintiff to undergo an MRI scan of her right shoulder on 18 January 2007, which demonstrated a full thickness tear of the anterior and middle fibre of the supraspinatus tendon, some bursitis, and tendinosis of the long head of bicep with interstitial tearing.

20        Initially Mr Nguyen treated the plaintiff with a steroid injection, but on 27 February 2007 performed an arthroscopy of the glenohumeral joint which revealed bicep rupture, a re-tear of the supraspinatus, subacromial bursa with moderate acromial spur and arthritis of the AC joint.

21        The plaintiff was placed in an abduction sling for four weeks and was reviewed on several occasions, and in particular was reviewed on 10 September 2007, some six months post-surgery.

22        Mr Nguyen states, in a report dated 12 December 2007 (see page 50 of Exhibit A), that:

“She had actually found another job and had commenced four weeks

prior. A clearance certificate was issued at that time.
In response to your questions:

1         The diagnosis has been stated above.

2         I believe the injury is consistent with the stated cause.

3         The patient had returned to her pre-injury duties of administrative work. I believe she would have problems with repetitive manual work in the future as demonstrated above.

4         Currently Mrs Chadband has returned to her pre-injury level of duty. However, it has been shown in a number of patients with rotator-cuff tear, that function can deteriorate over time and require further treatment. ...”

23        Mr Nguyen reviewed the plaintiff on 21 September 2009, and in a report dated 30 September 2009 (see page 52 of Exhibit A), states:

“Since the last review she has been in a new job for 18 months. She was
happy with her current employment.
Examination of her shoulder on 21/9/09 demonstrated a full forward
elevation and external rotation. She had a slight decrease in her internal
rotation compared to the left shoulder. She demonstrated weak rotator
cuff muscles on the right side, when compared with the left shoulder.

In answering your specific questions:

(a)	Mrs Chadband should have no problem with office work. She may have problems with work that requires heavy lifting or pushing, or repetitive above-shoulder-height movements.
(b)	Her current problem with the right shoulder is rotator-cuff muscle weakness. This has not improved significantly over the last two years. This is partly due to her being protective of her right shoulder. Therefore I think her shoulder strength would improve further with regular exercise and physiotherapy.”

24        The plaintiff attempted to return to work with the defendant in mid-2007 and was placed in various jobs, but had difficulty with work that required frequent or regular use of the right arm. She came to the view that she could “not carry out physical work and would only be able to carry out clerical-type duties where I did not need to stress the right arm or shoulder”.

25        In approximately August 2007, the plaintiff commenced employment with Uniting Care Community Options, and is presently working a nine-day fortnight from approximately 8.30 to 4.30 every day, which is apparently “just about” full-time work: (see T7 L27–T8 L1). The plaintiff describes that work in the following terms:

“I organise care for people with disabilities and the aged. I have a lot of

phone work and computer work and contact with service providers.”

(See T8 L2–7)

The Consequences

26        The Court refers to the affidavits sworn by the plaintiff on 24 October 2008 (at page 5 of Exhibit A, and hereafter referred to as “the first affidavit”), and on 18 November 2009 (at page 12 of Exhibit A, and hereafter referred to as “the second affidavit”).

27        In the first affidavit, at paragraph 17 and following, the plaintiff deposes:

“This work ... [at Uniting Care Community Options] is easy although even simply using a computer keyboard puts stress on the shoulder and causes shoulder pain. I am usually in pain by the end of my working day. I am nonetheless happy to have the work and income as I have realised that I will not go back to more hands-on employment such as the store type work that I was carrying out with United Book Distributors.

18     Mr Nguyen advised me that the rotator cuff tear can deteriorate or tear again, so I am very careful about how I use the right arm. The right shoulder is usually painful and becomes more painful with even fairly light use. I use painkillers and anti-inflammatory tablets occasionally but try to use them as little as possible as I don’t like relying on them. Being right-hand dominant, this is difficult and the injury impacts on all facets of my day to day life.

19     I have particular trouble with things such as hanging clothing on a line or washing windows. Any effort above shoulder height is virtually impossible. I have had to give up swimming and netball. I am also left with scarring from the two operations on the shoulder.

20     I had painted the interior of a previous house of my own. I enjoyed working in and on the home and also in the garden. I am now very limited in these types of tasks and I find that upsetting.”

(my emphasis)

28        In the second affidavit at paragraph 2 onwards, the plaintiff deposes the following:

“. . .

2        Unfortunately my right shoulder condition has not changed to any significant degree since swearing my previous affidavit.

3        I continue to avoid using the right arm where possible and try to carry out many tasks either with the left arm only or with the use of both arms.

4        Avoiding all use of the right arm is not always practical so I try to minimise the stress or weights that I put on the right arm in situations where I do something with the right hand or arm.

5        I can still carry out tasks or chores around the house but will try to limit the movement of the right arm. I will still clean and carry out gardening chores but will proceed slowly and carefully. For example, I have mowed the lawn by pushing the mower with both arms and/or just with the left arm but am unable to ‘pull start’ the mower and need help to do this. As another example, I can only wash my car occasionally but avoid reaching too far or reaching over the roof with my right arm. This is the type of activity that I can try but which I will then ‘pay’ for with increased pain later.

6        As I have previously sworn, I am right handed. This does make life difficult every day. Simple tasks that I would not normally even think about can cause sudden pain when I use the right arm and shoulder without thinking first.

7        I now carry out many simple and routine activities with the left hand that I am not able as I would like to be due to that not being my dominant hand. For example, I now clean my teeth with my left hand but find that it feels uncomfortable and unnatural to do this left handed.

8        I also find that pain in the right shoulder not only builds up while I am using it but that it becomes particularly bad within the next 12 to 24 hours. In that sense, I will ‘pay’ for activity with considerable pain the next day and have to keep the right arm largely inactive.

9        I continue to use painkillers but am still trying to use as little as possible. I will probably resort to using painkillers a couple of times each week on average as the pain becomes too great to simply work through and wait for it to improve.

10      I still work at Uniting Care Community Options. This is a job that I very much like and am grateful that it is a job where I do not have to use the right arm to any great extent. ...”

(my emphasis)

29        The Court also refers to a medico-legal report of the orthopaedic surgeon, Mr Rodney Simm, who examined the plaintiff on 12 January 2010 at the behest of her solicitors: (see page 56 of Exhibit A). Mr Simm states that he found some restriction of movement of the right shoulder, and in particular he states:

“Her prognosis is for her condition to persist as described in this report. She will be permanently confined to light recreational and occupational activities. She would not be able to resume pre-injury activities such as swimming and netball. She will be very limited in her ability to undertake gardening and household maintenance. She will also have some restrictions on her ability to carry out household cleaning.

Further medical treatment will continue along current conservative lines with analgesic medication as required and self-regulation of activities. Further physical therapy is unlikely to help. As I have indicated above, I would not recommend a further attempt at surgical repair as I believe the quality of the supraspinatus tendon is such that an effective repair cannot be carried out. ...”

(my emphasis)

30        I also refer to the medico-legal report of the orthopaedic surgeon, Mr Michael Dooley, who examined the plaintiff at the behest of the defendant on 20 October 2009: (see page 26 of Exhibit 3). On examination, Mr Dooley found some restriction of shoulder movement and states:

“I would expect Ms Chadband to have some restriction of abduction and forward flexion of the shoulder. I would expect her to note some shoulder pain with activity at and above shoulder level. Fortunately, after the revision surgery, Ms Chadband is not aware of nocturnal pain. At this point in time, there is no further specific treatment required, either conservative or surgical. Ms Chadband is fit to continue her current employment as a clerical officer. In your letter dated 6 October 2009 you have asked me to comment on Ms Chadband’s claims that she has difficulty with tasks such as hanging out the washing, washing windows etc. and that she has had to cease swimming and netball as a consequence of her shoulder problems. As outlined above, patients with this sort of problem do note difficulty with a lot of activity at and above shoulder level. Typically a patient notes difficulty hanging out the washing and washing windows etc. at chest or above shoulder height. Freestyle swimming would be very difficult with this problem, and competing for a ball at above shoulder height in netball would also be very difficult. These difficulties would be entirely consistent with Ms Chadband’s injury and subsequent surgeries. ...

I believe Ms Chadband will continue to note some intermittent right shoulder girdle pain. I believe she will continue to note difficulty with a lot of activity at and above shoulder level. ...”

(my emphasis)

The Cross-Examination of the Plaintiff

31        In relation to the plaintiff’s restrictions and consequences of the right shoulder/arm injury, she gave the following pertinent evidence:

(a)	She last painted prior to her injury when she painted her own house, which was placed on the market for sale, with her intention to move to Lilydale (T11 L10).
(b)	Prior to the injury, she played netball “just socially” with her daughters who were then playing netball. Her daughter does not play netball now, but rather, plays basketball for a team called the ‘Kilsyth Heat’: (see generally T11 L14–29; T29 L13–19).
(c)	Prior to the injury, the plaintiff would “sometimes ... go to the pool at Dandenong”: (see T12 L1–2), and this would be performed probably “once or twice a week”: (see T12 L3–4). The plaintiff has enjoyed swimming since a child: (see T12 L6) and she would probably spend “an hour, an hour and a half” performing freestyle and backstroke prior to her injury: (see T12 L21–23). Although the plaintiff has continued to attend the pool and perform some breaststroke, she does not perform freestyle or backstroke, and believes that some weight gain may be attributable to her reduction in swimming: (T23 L17–25).

In re-examination, the plaintiff gave the following evidence:

“Q: “Mrs Chadband, you mentioned – or you have been asked about swimming?---

 A:  Yes.

Q: You mentioned something about the Ringwood swimming

club?---

A:	Yes, when I was a lot younger as a child.
Q:	How many years ago, are you able to give us a rough estimate how many years ago when you last remember?---
A:	Probably ten I was, so 36 years ago.
Q:	Sorry, could you just repeat that?---
A:	I was – I did a lot of competitive swimming as a child.

Q: Has it been swimming in terms of the freestyle and backstroke? Has that been something you’ve continued on at least up until this injury occurring?---

A: Yes, that – some – look there were some times where I wouldn’t do it, like it wasn’t on a regular basis all the time, like it wasn’t weekly or monthly but you know, in winter I might not swim for a while, more in summer.

Q:	That is leading up to this injury?---
A:	Yes.”

(See T37 L24 – T38 L12.)

(d)	The plaintiff ceased receiving treatment for her shoulder about six months after the surgery undertaken by Mr Nguyen, and physiotherapy ceased at about the end of 2007: (T22 L6–9).
(e)	In relation to medication, the plaintiff stated:

“Well, there’s weeks I go through where I won’t take medication, it depends what I do with my arm, my shoulder, and look sometimes I won’t have it for two or three weeks, then if it starts to get aggravated again I’ll take something.”

(f) The plaintiff has no nocturnal shoulder pain: (see T25 L21–24). In relation to pain, the plaintiff states:

“Q:	Before you go on Mr Walsh, can I ask you one thing which I am not clear about Mrs Chadband. Where you reported to Mr Dooley and elsewhere that you note ongoing right-shoulder pain?---
A:	Yes.
Q:	Is the right-shoulder pain always there to some degree or only when you try and do the activities you’ve been talking about?---
A:	It will be there most times in the morning. I think it must get a bit stiff overnight.

Q: Yes?---

A:	And if I do try and do something physical during the day, like gardening or anything, it’s the next day that it will be stiff and sore.
Q:	And assuming you wouldn’t say you didn’t do that after waking up with what you say may well be a pain brought about by stiffness. As the day goes by do you continue to have some degree of pain, albeit maybe lessening or?---
A:	It will gradually loosen up, so it gets better as the morning goes on.
Q:	Do you have periods where you are pain free?---
A:	Yes.
Q:	In terms of your ability to drive a car, are you able to do that quite well?---
A:	Yes. I just have to be careful where I park. If it’s like a tight carpark [I] really turn my wheel.
Q:	Are you able to go shopping? Do you have goods in your right hand?---
A:	I will try and lift most of my groceries in my left hand. If it’s something like – like a loaf of bread in a bag I lift it with my right hand. I try to avoid lifting or anything heavy.”

(See T25 L16–T27 L14.)

(g)	The plaintiff does wash her car and her windows at home “occasionally”: (see T28 L3–6). The plaintiff does perform some gardening, but she has not got “a very big front yard”: (T29 L11–12). Her de facto helps her around the house and “probably cooks more than myself” because he is a better cook (T29 L5–7).
(h)	The plaintiff continues to maintain a fairly active social life, attending restaurants, going out shopping, and looking at real estate: (T13 L7–14).

(i)      The plaintiff was shown video and DVD material (Exhibits A and B) taken on 23 April 2009, 19 July 2009, 20 July 2009, 21 July 2009, 5 October 2009, 20 November 2009, 21 November 2009 and 28 November 2009. The film revealed the plaintiff using her right arm to carry keys, open car doors, use mobile telephones, and drive a motor vehicle without apparent restriction. In particular, video taken on 21 November 2009 revealed the plaintiff shopping, removing dresses from clothes racks and holding them out in front of her, sometimes with the arm elevated slightly higher than horizontal. Furthermore, on 28 November 2009 the plaintiff raised her right hand at least 45 degrees above horizontal, reaching to get food. A video taken on 5 October 2009 showed the plaintiff attending a service station and using her right hand and arm to operate a petrol hose and filling up tyres with air.

(j) The plaintiff accepted that it was her in the video and she could undertake such activities, and in particular reach above her head to 45 degrees to get something, as long as any object was not heavy: (T34 L23–25).

Analysis of the Evidence

32        I am satisfied that the plaintiff suffered a compensable injury arising out of or in the course of her employment on 13 December 2005. Furthermore, I am satisfied that such injury has resulted in some permanent impairment giving rise to physical consequences. So much is not disputed by the defendant.

33        In determining whether such “consequences” are “serious” within the meaning of s.134AB of the Act, I am assisted by two recent Court of Appeal decisions of Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, delivered on 14 August 2009, and Sabo v George Weston Foods [2009] VSCA 242, delivered on 23 October 2009. In particular, I refer to the following matters:

(a)  The dicta of Ashley JA and Beach AJA in Stijepic, wherein they state:

“The emphasis in s 134AB (37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation — because, it may be supposed, the consequences are glaringly apparent one way or the other. The spectrum is not established simply by fastening upon a case or two in which the applicant has failed.”

(See paragraphs [40] – [42])

(b) In Stijepic (op cit), Ashley JA and Beach AJA refer to Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, wherein, at paragraph 27, it is stated:

“… the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”

(c) I also refer to the dicta of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292, at paragraph [24], whereat His Honour stated:

“If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are ‘at least very considerable’.”

Ashley JA and Beach AJA commented in relation to these words:

“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. ...”

34        I accept the plaintiff as essentially a witness of truth, and she made appropriate concessions when the video material and other matters were put to her in cross-examination.

35        I find that the plaintiff has some restriction of movement of the right arm and shoulder, and in particular has difficulty either frequently reaching above her head or lifting heavy objects from above shoulder height on a regular basis. However, such restriction does not impact overly on her day-to-day activities. She has been able to resume alternative near full-time employment and engage in normal social activity.

36        I do accept that the nature of her restrictions would prevent such activities as freestyle and backstroke swimming, and limit the ability to wash windows and cars. However, such inhibitions on such activities must be seen in the context of the frequency of those activities prior to her injury. In this respect, I note that the swimming activities were not as frequent or intense as was implied in the first affidavit and the reports of Mr Simm and Mr Dooley.

37        The plaintiff has not undergone any active treatment for her shoulder injury since about six months after the surgery undertaken by Mr Nguyen and only takes medication intermittently, sometimes foregoing such medication for two or three weeks. The plaintiff suffers no nocturnal shoulder pain and has periods when she is pain-free.

38        When asked by the Court what consequences are said to be “serious”, counsel for the plaintiff in particular referred to the consequence that the plaintiff “is permanently confined to light work using the right upper limb”. The employment history of the plaintiff is mostly of clerical and office-type activities, and indeed the work undertaken by the plaintiff now is office orientated and does involve the use of a computer.

Conclusion

39        It may be that the totality of the evidence reveals that the plaintiff has suffered and continues to suffer “pain and suffering” consequences which are both marked and significant, but the Court is not persuaded that these consequences can be fairly described as being more than “significant” or “marked” or at least being “very considerable”.

40        Accordingly, the application is dismissed.

41        I will hear the parties on the issue of costs.

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