Clancy v Hazeldene's Chicken Farm Pty Ltd
[2018] VCC 466
•17 April 2018
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-00794
| JOHN DAVID CLANCY | Plaintiff |
| v | |
| HAZELDENE'S CHICKEN FARM PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 26 and 27 October 2017 | |
DATE OF JUDGMENT: | 17 April 2018 | |
CASE MAY BE CITED AS: | Clancy v Hazeldene's Chicken Farm Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 466 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right shoulder – pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Judgment: Leave granted to the plaintiff to issue proceedings at common law for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with Mr M Fogarty | Arnold Dallas & McPherson |
| For the Defendant | Mr A J Moulds QC with Ms B A Myers | Hall & Wilcox |
HIS HONOUR:
1 The plaintiff in this action seeks leave to commence common law proceedings against the defendant, his former employer, pursuant to s134AB(16)(d) of the Accident Compensation Act 1985 (“the Act”) in respect of pain and suffering damages.
2 The application refers to an injury to the plaintiff’s right shoulder which he sustained on or about 17 July 2012 while working as a labourer for the defendant at its chicken farm.
3 At the hearing, it was not in dispute that the plaintiff suffered a compensable injury in the course of his employment with the defendant on the date alleged. What was in contention was whether the plaintiff suffered a “serious injury” within the meaning of paragraph (a) of the definition of the term in s134AB(37) of the Act as a result of this compensable injury. Paragraph (a) provides that a “serious injury” means:
“(a) permanent serious impairment or loss of a body function.”
4 In his opening, Senior Counsel for the defendant indicated that the main issue before the Court was whether the impairment subsisting at the time of the hearing, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as “at least very considerable” and “more than significant or marked”.[1]
[1]See Humphries & Anor v Poljak [1992] 2 VR 129
The Plaintiff’s background
5 The plaintiff was a fifty-three-year-old single man at the time of hearing, who had resided in Bendigo but was now residing in Heidelberg West. His working life had consisted of heavy manual work. He had worked as a mechanical operator and general hand at the Sunday Herald Sun for a number of years, thereafter as a part-time groundskeeper, and thereafter he worked in a warehouse for four years, and also at Castlemaine Meat Works for one year.
6 The plaintiff commenced employment with the defendant on 27 April 2011 at their chicken farm, employed as a farmhand. His job included cleaning chicken sheds, removing chicken manure and removing dead birds.
7 On 17 July 2012, the plaintiff suffered injury to his right shoulder when he fell at work. It is common ground he suffered a fractured dislocation of the humerus. Thereafter, the plaintiff had a short time off work and returned to work on modified duties. He attended the Soft Tissue Clinic at the defendant’s premises for treatment for ongoing shoulder pain, and also received physiotherapy.
8 An ultrasound on 3 August 2012 disclosed a comminuted fracture of the right humerus and a tear to the supraspinatus tendon.[2]
[2]Exhibit “G”
9 The plaintiff’s general practitioner referred him to orthopaedic surgeon, Mr Brendan Soo, who had refused to provide a report to the plaintiff’s solicitors. However, a number of letters from Mr Soo to the treating general practitioner were admitted into evidence.[3] In any event, Mr Soo arranged for the plaintiff to undergo an ultrasound-guided steroid injection on the basis of a diagnosis of bursitis.
[3]Exhibit “E”
10 The plaintiff continued to work for the defendant but avoided heavy work and ultimately, ceased work with the defendant in March 2016. He made a decision at that time to pursue further employment elsewhere.
11 In September 2016, the plaintiff found work in Melbourne driving a van for a company called Biviano & Sons, delivering fruit and vegetables, and was still so employed at the time of hearing. He relocated to Melbourne for the purpose of maintaining this employment.
12 The plaintiff sought treatment in Melbourne in February 2017 from a general practitioner in Greensborough for the purposes of obtaining a prescription of Panadeine Forte and obtained further prescriptions for same from a general practitioner at Northland Shopping Centre in June.
13 The plaintiff had previously taken Celebrex when he was in Bendigo, but had to cease because it had caused some rectal bleeding.
Identifying the injury
14 In Particulars of Injury filed 21 March 2017, the plaintiff alleged particulars as follows:
“a) Injury to the right shoulder and arm;
b) Comminuted avulsion fracture involving the greater tuberosity of the right humerus;
c) Two articular surface tears of the supraspinatus tendon in the right shoulder;
d) Bursitis and tendinosis in the right shoulder;
e) Traction injury of the right brachial plexus;
… .”[4]
[4]Plaintiff’s Court Book (“PCB”) 18
15 There was not a great disparity in the medical evidence adduced by both parties. Mr Garry Grossbard, orthopaedic surgeon, provided two reports on behalf of the plaintiff dated 24 February 2016 and 13 June 2017.[5] In his first report, he opined the plaintiff had suffered a fractured dislocation of his shoulder which reduced spontaneously shortly following the incident and the fracture had united in a reasonably good position. He further noted:
“… Mr. Clancy does however have ongoing symptoms in relation to his shoulder and some restriction of shoulder motion. He has been able to return to his previous employment with some modification. This is mainly a requirement of not working at or above shoulder height. I believe the situation is unlikely to change significantly in the foreseeable future. I believe this man is able to continue working, with the restriction of not undertaking a great deal of repetitive lifting, or working at or above shoulder height.
I believe his prognosis is fair in that I doubt he will ever be symptom-free, but he should be comfortable for most activities.”[6]
[5]Exhibit “C”
[6]Exhibit “C”, PCB 33
16 In his second report, Mr Grossbard confirmed the diagnosis and stated:
“[Mr Clancy] continues to have ongoing symptoms. He has been able to find a job with which he is able to cope, although he has pain at the end of each shift and requires regular medication. … .
I believe the situation is stable and permanent. No further specific treatment is required other than continuing with exercise programmes and undertaking the use of medication as required.”[7]
[7]Exhibit “C”, PCB 36
17 On behalf of the defendant, the plaintiff was examined by Associate Professor Anthony Buzzard, orthopaedic surgeon, on 22 February 2015.[8] His assessment was as follows:
“I think that Mr Clancy did suffer from a fracture dislocation of the left (scil right) shoulder as a result of the accident described. This would fit with the documentation you sent me. He does have slight restriction in range of movement of the left (scil right) shoulder now and some continuing pain. This is not likely to change in the future, as the fracture has not involved any articular surface. On that ground, he is not likely to develop osteoarthritis in the left shoulder.”[9]
[8]Exhibit 1
[9]Exhibit 1, Defendant’s Court Book (“DCB”) 4
18 The defendant also had the plaintiff examined by Mr Ian Jones, orthopaedic surgeon, on 7 February 2017. Mr Jones was provided with a number of investigations. He stated:
“Review of x-rays in your enclosures, in the form of an ultrasound of the right shoulder, described the presence of a partial thickness articular surface tear of the supraspinatus tendon. A plain x-ray of the patient’s right shoulder describes a mildly comminuted fracture involving the greater tuberosity of the right humerus, with the largest fragment measuring approximately 1.5 cm.
Subsequent x-rays confirm maintenance of position of the fracture with healing of the bone. A further ultrasound dated 10 January 2013 describes the presence of some tendinosis affecting the supraspinatus tendon in association with a small articular surface tear. Changes in the humeral head were consistent with a previous avulsion fracture of the greater tuberosity.”[10]
[10]Exhibit 2, DCB 9-16
19 Mr Jones confirmed the injury as being consistent with a fracture dislocation of the right humerus, with the dislocated shoulder spontaneously reducing itself shortly after the incident.[11]
[11]Exhibit 2, DCB 14
20 Mr Jones later stated:
“3. This patient has suffered an injury to his right shoulder consistent with a fracture dislocation. The avulsed fragment of the greater tuberosity has since healed on x-ray and Mr Clancy has regained a full range of movement. Subjectively he has some slight paraesthesia of the skin over the right deltoid muscle, which likely reflects an injury to the axillary nerve of the right upper arm, rather than a traction injury to the brachial plexus as has been suggested in the Medical Panel’s report.”[12]
[12]Exhibit 2, DCB 15
21 Mr Jones went on to record:
“5. This patient’s reported pain symptoms are consistent with the long term effects of the injury suffered by Mr Clancy.
6. In light of the early degenerative changes suggested on the ultrasound investigations in the shoulder, it would be inadvisable for this man to return to his pre-injury employment or any work which requires overhead lifting or heavy pulling or pushing involving his right arm. To do so would likely aggravate the residual symptoms affecting this patient’s right shoulder.
7. This man is currently undertaking suitable employment which excludes the extremes of use of his non dominant right shoulder. He is most suitable for work below shoulder height, excluding extremes of heavy lifting involving his right arm.
8. The prognosis for this patient is likely to be one of varying degrees of shoulder pain, depending on the demands made on the joint. I would not anticipate any deterioration in his shoulder function in terms of the joint itself, but the mild degenerative changes affecting the rotator cuff tendons could possibly progress in the future, requiring further treatment.
9. The minor loss of function in this patient’s right shoulder is likely to persist permanently.”[13]
[13]Exhibit 2, DCB 15-16
22 The treating orthopaedic surgeon, Mr Brendan Soo, wrote to the general practitioner on 25 February 2013 and 14 May 2013.[14] In the first report, he related:
“John is now 7 months following a fracture dislocation of his right shoulder in which he sustained an undisplaced fracture of his greater tuberosity and a partial articular tear of his supraspinatus tendon. … On examination he had a positive Hawkins impingement signs and weakness with Jobe’s (4-/5) and external rotation strength (4/5). Jobe’s test also caused significant irritation in his shoulder. Repeat ultrasound of his shoulder performed on 10 January demonstrates partial articular tears of his supraspinatus tendon with associated long head of biceps tendinopathy.
John is suffering from impingement and bursitis in his right shoulder secondary to his fractured greater tuberosity. I will arrange for him to have an ultrasound-guided steroid injection into his subacromial space after I receive financial approval from his insurer. I would also like him to see Craig Mansfield to undergo a physiotherapy program focusing on scapular setting and posture control exercises as well as strengthening on his external and internal rotators in his shoulder.”[15]
[14]Exhibit “E”
[15]Exhibit “E”, PCB 40
23 In his second report, Mr Soo related:
“John is now 10 months post fracture dislocation of his right shoulder. He had a minimally displaced fracture of his greater tuberosity and has been suffering from persistent impingement and pain related to a PASTA tear of his supraspinatus tendon. He has responded very well to his most recent subacromial steroid injection and ongoing physiotherapy. He now displays a full range of motion in his shoulder and normal strength of supraspinatus and infraspinatus. His impingement tests were also negative. He still develops some mild pain when driving longer distances or when lifting objects overhead, and I have advised him that this is likely to continue given the partial tear of his supraspinatus tendon.
Otherwise he is ready to return to full work duties at Hazeldenes. I have provided him with a clearance certificate today.”[16]
[16]Exhibit “E”, PCB 41
The Plaintiff’s evidence
24 The plaintiff swore two affidavits, dated 10 August 2016 and 4 October 2017.[17] He described his accident as follows:
“9. Part of my role as a farm hand involved cleaning the overhead conveyor belts at the Hazeldenes breeder farm. This is an industrial farm. In order to perform this task I used a pressurised hand held washer whilst standing on top of a motorised trolley.
10. On 17 July 2012 I was performing this task when the trolley tipped over causing me to fall heavily on my right side. As a result of this incident I suffered a fracture dislocation of my right shoulder.”[18]
[17]Exhibit “A”
[18]Exhibit “A”, PCB 22
25 Following the accident, the plaintiff described his treatment and the consequences, as follows:
“11. I attended a local general practitioner, Dr Sajjad Muhammad at the Bendigo Primary Care Centre later that day. Dr Muhammad told me to take some painkillers and gave me a medical certificate for several days off work.
12. I attempted to return to work on or about 23 July 2012. I struggled upon my return due to pain and restricted movement in my shoulder. I attended the Soft Tissue Medical Clinic at Hazeldenes and I had some physiotherapy. My symptoms did not improve and on 3 August 2012 I was referred for an x-ray and ultrasound on my right shoulder. I understand that this scan reported that I had a comminuted fracture of my right humerus and a tear of my supraspinatus tendon in my shoulder.
13. I re-attended Dr Muhammad on 3 August 2012 and he certified me as unfit for work once again. My arm was placed in a sling. On 6 August 2012 I attended another general practitioner, Dr Violeta Stoyanova at the Queen Street Medical Centre in Bendigo. After reviewing my x-ray and ultrasound scan results, Dr Stoyanova referred me to an orthopaedic surgeon, Brendan Soo.
14. Mr Soo arranged for me to have a further x-ray on 13 August 2012. Mr Soo told me that I had suffered a fracture dislocation of my shoulder and that I should avoid any heavy duties at work. He told me that surgery was not required at that stage and that I should try and manage my injury conservatively. I subsequently re-attended Mr Soo for review and he arranged for me to have another x-ray on my shoulder on 18 September 2012.
15. On 3 October 2012 I had arthroscopic surgery on my right knee. Over the next few weeks I required the use of crutches whilst I recovered from that operation. The use of crutches seemed to stir up the pain in my right shoulder and arm. I returned to see Dr Muhammad and he arranged for me to have a further x-ray on my shoulder on 19 October 2012. I understand this scan confirmed that my fracture was slowly uniting.
…
17. On 10 January 2013 I attended Dr George Gardon at the Queen Street Medical Centre. He arranged for me to have a further ultrasound scan that day on my right shoulder. Dr Gardon told me that that scan showed two tears in one of the tendons in my shoulder and a large amount of fluid build up. Dr Gardon referred me back to see Mr Soo once again.
18. I attended Mr Soo for review in February 2013. He told me I had impingement and bursitis in my shoulder. He recommended that I have a steroid injection and also referred me to a physiotherapist, Craig Mansfield.
19. On 6 March 2013, I had an ultrasound guided steroid injection into my right shoulder. After this procedure, there was some improvement in my pain and range of movement. However, the effects of that injection wore off over time and I have continued to be troubled by flare-ups of pain in my shoulder ever since.
…
21. I continued to work as a farm hand for Hazeldenes, until around 16 March 2016. Although I worked on a full time basis, it was a struggle for me to maintain these hours. My right shoulder and arm continued to ache at work. This was particularly noticeable towards the end of the working day. I needed to be careful at work to avoid activities involving heavy lifting or overhead movement.
22. I have ceased my work at Hazeldenes and am now being trialled as a delivery driver in Melbourne. There is some lifting in this job, but I rarely have to do any overhead work, and I am finding this manageable, though at the end of the day I find that my shoulder is aching and painful.
23. I experience discomfort in my right shoulder that is present nearly all of the time. I have an aching pain within my right shoulder joint that sometimes extends down my right arm. My right shoulder feels weaker and I have lost strength in my right arm. I have wasting of the muscles around my right shoulder and upper arm. I experience some tingling and altered sensation in my right arm and hand. I also have reduced feeling and sensation in my right arm.
24. The pain and discomfort in my right shoulder and arm is aggravated by repetitive use of my right arm. Overhead or reaching activities tend to cause a sharper grabbing pain in my right arm. Reaching backwards or behind myself often causes a similar increase in pain.
25. I avoid laying on my right side at night. Doing so causes increased pain in my right shoulder. My sleep is often interrupted by pain in the shoulder and arm. During the evening, if I roll onto my right side, I am often awoken by pain. I find this very frustrating.
26. I take an anti-inflammatory, Celebrex, each day. I use Panadol and Nurofen to help control my pain. The amount I take varies according to the intensity of my pain. I take between two and six tablets most days. I have taken Endone in the past to alleviate my pain, but I have stopped taking it recently due to nausea and concerns about being addicted to it. In addition, I use Goanna oil and Deep Heat from time to time. During the colder months I use hot packs on my shoulder several times per week. I also take Endep most if not all nights to help me sleep.
27. I attend the Queen Street Medical Centre every couple of months for review. Although I ceased physiotherapy in or about late 2013, I continue to undertake self managed exercises that my physiotherapist taught me. These involve using a rubber band for strengthening exercises. I do these exercises when I can.
28. At home, my shoulder injury interferes with a range of every day activities. I find getting dressed and undressed uncomfortable at times. Reaching down to put my shoes and socks on causes discomfort in my arm. So too does taking long sleeved clothing on and off. Housework is also much more challenging. I struggle with activities such as hanging out the washing due to the need to reach overhead.
29. Driving a car for long distances is now uncomfortable. Having my right arm elevated on the driving wheel for long periods causes my shoulder to ache. I put up with this as best I can with my current work. I stop frequently to rest. When I deliver the goods, I lift them onto a trolley, which I then use to make the delivery.
30. Prior to my shoulder injury, my hobbies involved model building and miniature war games. I enjoyed building and painting models. Since the injury, this had been more difficult to do. It is quite fiddly and detailed work and involves a lot of use of my hands and arms. Whilst I still do so from time to time, I do not enjoy it as much now because my shoulder hurts if I do it for too long.
31. I also used to participate in archery with my daughter. I have a 45 pound compound bow. It is very painful to draw this bow now and I last about three shots or so before my pain increases to a point where I cannot continue. I tried recently at an archery range in McLeod using a lighter 25 pound bow, and lasted around 40 minutes but I pushed myself and was in a lot of pain after this. I have lost a lot of accuracy as a result of my injuries and I am reluctant to continue with this hobby. I miss doing this with my daughter.
32. The persistence of the pain and discomfort in my right shoulder and arm is very frustrating. I often feel fatigued and tired due to my interrupted sleep and the pain in my arm. My mood remains variable as a result. I am frustrated by the restrictions that my shoulder causes me and the regular flare-ups of pain that I have to contend with.
33. I am quite anxious and concerned about the future. My right shoulder feels vulnerable and I need to be very careful to avoid activities that aggravate the pain. Mr Soo has told me that I might require surgery in the future if my shoulder deteriorates and I find that prospect worrying. I am to have another cortisone injection in the near future.
34. Although I am currently working, I worry about my ability to do so long term. My right shoulder is not getting any better and hinders my ability to perform my pre-injury duties every day.”[19]
[19]Exhibit “A”, PCB 22-27
26 In his second affidavit, affirmed 4 October 2017,[20] the plaintiff related:
[20]Exhibit “A”
“7. I continue to suffer constant fluctuating right shoulder pain. My shoulder pain varies. I have a dull aching sensation in my shoulder all of the time. The pain in my shoulder is made worse by activity. The pain is generally worse at night and in colder weather. I occasionally experience a sharp, shooting pain in my shoulder. I have restricted movement in my right arm, particularly reaching overhead or behind my back. I have reduced strength in my right arm compared to before my shoulder injury with the Defendant.
8. Since moving to Melbourne I have not had a regular GP as I was moving around and was not settled until I got my own place in May 2017. In June 2017 I saw a GP at Northland Shopping Centre about my right shoulder. I was prescribed celebrex, which I have since been taking. I have more recently been attending Dr Fernando at Burgundy Street Family Clinic, who has prescribed Panadiene (sic) Forte for my shoulder pain.
9. I continue to regularly use heat packs on my right shoulder. I also have hot showers to try to relieve my right shoulder pain, particularly in the colder weather. I still try to do shoulder exercises at home most mornings, including using a Theraband and occasionally lifting light weights.
10. I take medication on a daily basis for my right shoulder. I take Panadol throughout the day. I will usually take two tablets in the morning. If I have bad pain I will take another two in the afternoon. I take one to two Panadeine Forte tablets most nights.
11. I have recently had some difficulties with my bowels and had a hospital admission due to rectal bleeding. I am having ongoing investigations but am currently able to work and am not having active treatment save for blood thickeners. Prior to this, I was taking both Neurofen (sic) and Celebrex for my shoulder pain. However this has ceased due to my bowel problems. I have had increased shoulder pain as a result.
12. I work with right shoulder pain every day. By the end of a day at work, my shoulder pain is generally worse. When I get home after work, I usually feel sore and tired. I usually take a Panadeine Forte when I get home or when I go to bed. I generally rest at home after work. I often lie down and watch television. I take my dog for a walk three or four times a week. I often walk him off the lead as he tends to pull.
13. I need to work to support myself financially. I have always been a manual worker. At work I try to take my time. I try to be careful not to aggravate my shoulder at work. If I try to do too much at work, I get worse pain.
14. Driving continues to aggravate my pain. I get increased pain if I drive for more than an hour. Holding my right arm in a fixed position on the steering wheel for prolonged periods causes increased pain in my shoulder. I need to rest my right arm regularly whilst driving.
15. I live on my own so I need to do housework. I try to avoid hanging out clothes above shoulder height with my right arm as this causes me increased pain. I generally use a clothes dryer. I pay someone to clean my windows. I am able to mow my lawn but the vibration of the mower causes me increased pain.
16. I continue to only occasionally perform model building and miniature war games. I find that I feel tired and sore after a day at work and so I do not often feel like doing much apart from resting. If I lean forward on a table or bench with my weight on my elbows to perform these activities, I tend to get increased shoulder pain. This detracts from my enjoyment of these hobbies.
17. Since my first Affidavit, I tried doing archery once at an archery centre near my home. I paid for an hour but lasted less than half an hour because my right shoulder got too painful. I was not able to keep going. I did not have the strength to pull the string back and keeping it steady after a few shots. This was very upsetting and frustrating. I was very sore for a couple of days afterwards and had to take Panadeine Forte. I have not returned to archery since this failed attempt.
18. My right shoulder pain affects my sleep. I have disrupted sleep most nights because of my shoulder. If I roll onto my right shoulder during the night I usually get woken up by pain. I try to sleep on my back or on my left side.
19. I tend not to socialise much now compared to before my right shoulder injury, in large part, because of pain in my shoulder and associated tiredness.
20. I find that I do not read as much as I used to before. In part, this is because I feel tired after work. I also find I get increased pain in my right shoulder holding a book up to my eyes in bed for prolonged periods. I find I need to move my right arm around continuously when I am reading. Because of right shoulder pain I do not enjoy reading as much as I did in the past.
21. I continue to worry about my right shoulder deteriorating in the future and the possibility of developing increased pain. I worry about problems with arthritis in my shoulder down the track and the possibility that I may require surgery.”[21]
[21]Exhibit “A”, plaintiff’s second affidavit sworn 4 October 2017, PCB 28B-28F
Credit
27 The plaintiff presented to me as a witness of truth and his evidence above was not diminished in cross-examination.
The Defendant’s submissions
28 In acknowledging the pathology as described by Mr Jones and Mr Grossbard, Senior Counsel for the defendant fairly submitted:
“So, it’s a genuine case involving whether the consequences are significant, or whether they’re at least very considerable. There is no other complication to the case that we see, Your Honour.”[22]
[22]Transcript (“T”) 60, Line (“L”) 23-26
29 Senior Counsel submitted that the consequences did not meet the “very considerable” range. In support of the submission, Senior Counsel submits:
(a)The plaintiff is clearly able to work in an occupation which he himself described as very physical;[23]
(b)The job description clearly involves repetitive handling of at least light to moderate weights in and out of a delivery van, including driving for significant periods during the day;
(c)There was no particular attachment to the nature of his job with the defendant;
(d)Although his duties had been changed to include no overhead reaching and he had complained about sweeping, there was no suggestion he could not keep going with the work for the defendant for that reason;
(e)Recreational archery with his daughter would not likely persist for a great period into the future;
(f)He joined a model soldier club in Melbourne and had attended there twice in the last three months;
(g)The analgesic regime is not strong, in the sense that it requires stronger prescription medication; and
(h)That although the plaintiff has ongoing pain and discomfort, he is able to undertake daily activities, maintain important relationships, able to work roughly in the same manner as he was able to do before, and he has remained mobile, both physically and driving;
(i)Video film tendered shows that he is able to interact socially with this daughter, shopping at the completion of a day’s work.
[23]T33, L17
Submissions by the Plaintiff
30 Senior Counsel for the plaintiff submitted as follows:
(a)The plaintiff was an honest witness who did not prevaricate. I accept this submission;
(b)None of the doctors accused him of embellishing his presentation on examination. I also accept this submission;
(c)The plaintiff has undertaken a lighter job driving a van, and opportunities for employment using his physical capacities are limited to no overhead work and avoiding activities that exacerbate his pain.
31 Senior Counsel further submitted that the pathology in the shoulder is consistent with ongoing pain, particularly as identified by Mr Jones, for the defendant, and, in particular, with the presence of early degenerative changes in the shoulder.[24]
[24]Exhibit 2, DCB 15
32 Further, Mr Jones opined that it was inadvisable for the plaintiff to return to pre-injury employment, or any employment with overhead lifting or heavy pulling or pushing. It was submitted that this was consistent with Mr Grossbard’s opinion. I accept this submission.
33 Further, Senior Counsel submitted that the evidence suggested that the level of pain was very significant. It was urged that I should accept the plaintiff’s evidence that he suffered from continual pain of varying degrees and that he has required strong medication, such as Celebrex, until he was told to cease for medical reasons.
Findings
34 I find that the plaintiff is a witness of truth and has not sought to embellish his symptoms at any stage.
35 The pathology demonstrated from the subject injury is consistent with ongoing pain and restrictions in the plaintiff’s ability to carry out manual work. I am particularly reminded of the dicta of her Honour Dodds-Streeton JA, in Kelso v Tatiara Meat Co Pty Ltd,[25] where her Honour stated:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[26]
[25](2007) 17 VR 592
[26]Kelso v Tatiara Meat Co Pty Ltd (ibid) at paragraph [199]
36 Further, I am mindful of the dicta of President Maxwell in Haden Engineering Pty Ltd v McKinnon[27] to the following effect:
[27](2010) 31 VR at paragraph [16]
“Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s:
• sleep;
• mobility;
• cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
• capacity for self-care and self-management;
• performance of household and family duties;
• recreational activities;
• social activities;
• sexual life; and
• enjoyment of life.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case."
37 Also, his Honour said, at paragraph 15:
“As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her]’.”[28]
(footnote omitted).
[28]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [15]
38 Ultimately, the test in this matter is whether the plaintiff has established that the pain and suffering consequences of his injury, when judged by a comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being “more than significant or marked” and as being “at least very considerable”.
39 This test involves a value judgment in which matters of fact and degree and/or impression are operative.[29]
[29]See Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [41]
40 In this matter, I accept that the plaintiff suffers ongoing pain in his shoulder which has affected his ability to fully participate in unrestricted labouring work, recreational activities such as archery with his daughter, and operations with respect to model soldiers, which he would participate in, prior to injury, up to two hours a night. I also accept, in the foreseeable future, continuation of painful symptoms in his shoulder, such that the effect of the pain and limitations of movement would inhibit upon his enjoyment of life. Ultimately, the question in this case is whether the consequences can be fairly described as being “more than significant or marked” or as being “at least very considerable”. In my view, the plaintiff has discharged in this regard, and leave with granted is sought.
41 I will hear the parties as to any consequential orders.
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