Cordiano v Woolworths Group Limited
[2023] VCC 192
•21 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-21-02907
| ROBERT CORDIANO | Plaintiff |
| v | |
| WOOLWORTHS GROUP LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 February 2023 | |
DATE OF JUDGMENT: | 21 February 2023 | |
CASE MAY BE CITED AS: | Cordiano v Woolworths Group Limited | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 192 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – serious injury to the lower back – physical injury to bilateral shoulders – whether the pain and suffering consequences are “serious” under the Act – credit of the plaintiff
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Application for leave by the plaintiff to bring common law proceedings to recover damages for pain and suffering arising from injuries to his lower back and bilateral shoulders in the course of his employment with the defendant is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C S O’Sullivan with Mr C Woollacott | Arnold Dallas McPherson |
| For the Defendant | Mr D McWilliams | Lander & Rogers |
HIS HONOUR:
1This is an application brought by Originating Motion whereby the plaintiff applied for leave pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages suffered by him arising from his employment with Woolworths Group Limited (“the defendant”). The plaintiff alleges that his lower back was injured on or about 2 January 2007. The plaintiff further alleges that on or about 10 October 2012, he injured his right shoulder and subsequently, has suffered injury and symptoms to his left shoulder arising out of his employment on 10 October 2012.
2The plaintiff seeks leave to bring proceedings to recover damages for pain and suffering in respect of the plaintiff’s lower back and also in respect of the plaintiff’s shoulders. The plaintiff seeks leave pursuant to the definition of “serious injury” for serious long-term impairment or loss of body function to his lower back and bilateral shoulders.
3The following evidence was adduced in the course of the hearing:
· The plaintiff gave evidence and was cross-examined
· The plaintiff tendered the following documents:
§Exhibit “A” ꟷ Plaintiff’s Amended Court Book (“PCB”), pages 5 to 20, pages 22 to 32 and pages 39 to 57
§Exhibit “B” ꟷ a letter dated 11 October 2021 from the defendant to the plaintiff
§Exhibit “C” ꟷ Defendant’s Court Book (“DCB”), page 60
§Exhibit “D” ꟷ a letter dated 11 July 2022 from AusNet to the plaintiff and attached emails.
· The defendant tendered the following exhibits:
§Exhibit 1 ꟷ Defendant’s Court Book, pages 2 to 17 and pages 21 to 103.
§Exhibit 2 ꟷ Plaintiff’s Amended Court Book, pages 58 to 61.
4At the commencement of the proceeding, Mr McWilliams, on behalf of the defendant, identified the following issues as relevant in this application:
(a) the plaintiff does not satisfy the statutory level for pain and suffering damages as a result of the physical injury to his lower back (a range case);
(b) the plaintiff does not satisfy the statutory level for pain and suffering damages as a result of the physical injury to his bilateral shoulders (a range case); and
(c) the plaintiff is required to disentangle the consequences of the injuries to his lower back from, and including, the injuries to the bilateral shoulders;
(d) the credit of the plaintiff.
The statutory scheme
5The application is brought under the definition of “serious injury” contained in s134AB(37) of the Act, which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of body function”.
6The relevant considerations which apply to such an application are as follows:
(a) the plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999;[1]
(b) the injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
(c) the plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by 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”;
(e) subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of this application unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;
(g) in conformity with Barwon Spinners,[3] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1]See s134AB(1) of the Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[2] Barwon Spinners (ibid) at paragraph [33]
[3] ibid
7I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
8The plaintiff was born in 1969 and is currently fifty-three years of age. The plaintiff has lived in Victoria his whole life. The plaintiff is a single man with no children.
9The plaintiff was educated to Year-11 level at a secondary college in Preston, and between leaving school and commencing work with the defendant in 1993, the plaintiff worked in a number of warehouses as a storeperson. Generally, his employment in those places of employment were casual roles.
10Initially, in 1993, the plaintiff commenced work with the defendant at the Somerton Warehouse and remained there until approximately 2000, when that warehouse had closed. Between 2000 and 2002, the plaintiff had taken a break from work in order to care of family affairs.
11In 2002, the plaintiff commenced work at the Broadmeadows Distribution Centre for the defendant and remained in that employment until he was retrenched in January 2020.
12On or about 20 November 2018, the plaintiff was involved in a two-car collision, which resulted in him attending upon his general practitioner, Dr Mourad Alexander. The plaintiff complained of a sore neck and sternum as a result of that transport accident.[4] The injuries and sequelae for the transport accident of 2018 has no relevance to the matters in consideration before the Court.
[4]DCB 77 and PCB 6
Lower back injury with the Defendant
13The plaintiff was employed in a full-time capacity as a picker and packer, and later as a forklift driver between 2002 and 2020.
14In his affidavit dated 26 February 2021, the plaintiff set out the circumstances of the injury to his lower back in the following terms:
“I had some back pain during the course of my employment which I sought intermittent conservative treatment for. During my shift on 2 January 2007, I was required to repetitively bend and lift boxes that weighed between 13 and 20 kilograms. After bending to lift one of the boxes, I felt a sharp pain in my lower back. I immediately reported this to my supervisor. The pain radiated from my lower back to both thighs. I went to go see a GP, who prescribed me with pain relief and gave me a medical certificate to work light duties only.”[5]
[5]PCB 8
15The plaintiff attended his general practitioner and was referred for a CT scan to his lumbar spine. The CT scan report dated 15 January 2007 noted the following:
“The lumbar vertebral bodies appear normal in height and alignment.
No compression fractures or lytic/sclerotic lesions are seen.
Early marginal osteophytosis is noted.
The intervertebral spaces and pedicles appear normal.
No evidence of spondylolysis or spondylolisthesis is seen.
There is a left paracentral disc herniation at L4/5 level compressing the left descending L5 nerve.
A diffuse posterior disc bulge at L5/S1 is also seen which is indenting the bilateral descending S1 nerves.
No abnormal pre or paravertebral soft tissue masses are identified.
COMMENT
1.A left paracentral disc herniation at the L4/5 level compressing the left descending L5 nerve.
2.A diffuse posterior disc bulge at L5/S1 indenting bilateral descending S1 nerves.”[6]
[6]DCB 60
16The plaintiff returned to his general practitioner on 5 January 2007, giving a history to his doctor that he was moving more freely and that his back pain was less, but he still suffered from spasm.[7] On a later occasion, on 24 January 2007, the plaintiff again attended upon his general practitioner, describing the lower back pain as intermittent. In his evidence, the plaintiff stated that he did a couple of months on light duties before he went back on full-time duties.
[7]DCB 57
17In respect to the plaintiff’s lower back, the plaintiff continued to work through until his redundancy in January 2020.
18The plaintiff has not received any orthopaedic or further medical treatment in respect to his symptoms for his lower back. The plaintiff stated that he does not like to take medication for his pain and, hence, has not taken pain-moderating medication for the condition to his back.
19Other than the initial radiological report of 15 January 2007, the plaintiff has not been referred to, or sought, any further radiological examination of his lower back.
The right and left shoulder
20In the course of his employment on or about 10 October 2012, the plaintiff suffered an injury to his right shoulder as a result of boxes being moved along a chute. The plaintiff felt a sharp pain to his right shoulder, elbow and forearm area when trying to lift a 16-kilogram box in order to unlock the chute.[8]
[8]PCB 8
21The plaintiff attended upon his general practitioner and was diagnosed with bicep tendonitis. He was prescribed Voltaren tablets and Voltaren Gel.[9]
[9]PCB 8 at paragraph 15
22The plaintiff was cleared for full-time normal duties on 11 November 2012. He had no further treatment for his right shoulder at that stage.
23The plaintiff, in his evidence and affidavit, stated that he then used his left arm and shoulder more due to the restrictions in his right shoulder. The plaintiff never attended upon any doctor for any injury to his left shoulder.
24In the course of this litigation, the plaintiff was referred by his general practitioner for an ultrasound of his left and right shoulder. This procedure took place on 11 February 2021, some years after the plaintiff had ceased working for the defendant. The ultrasound report of 11 February 2021 is as follows:
“ULTRASOUND OF LEFT SHOULDER
There is a full-thickness tear of the supraspinatus tendon measuring 30 mm in size and there is insertional tendinopathy of the rotator cuff also present. There is thickening of the subacromial bursa associated with bursal bunching with shoulder movement and a small amount of fluid is shown in the sheath of the long head of the biceps tendon.
…
ULTRASOUND OF RIGHT SHOULDER;
There is mild enthesop[ath]ic changes present at the insertion and flattening of the supraspinatus tendon is also present measuring 15mm in keeping with insertional tear of the rotator cuff. Mild capsular thickening AC joint is present and there is some mild thickening of the subacromial bursa also shown. Some fluid is demonstrated in the sheath of the long head of biceps tendon. Satisfactory range of movement is present.”[10]
[10]DCB 50
25In respect to both the right and left shoulder injuries and lower back injuries, the only treatment the plaintiff has sought is hydrotherapy. In the course of the hearing, an issue arose about the plaintiff attending upon his general practitioner on 5 August 2021. Dr Victor Salib, at that consultation, refused to be involved in a WorkCover claim. The plaintiff was seeking to have a WorkCover Certificate of Capacity for his shoulder problem at that stage. I note, for completeness, Exhibit “B”, a letter from the defendant to the plaintiff, denying a claim for physiotherapy treatment made by the plaintiff. There was no evidence in this case that any physiotherapist had treated the plaintiff at any time, either for his shoulders or his lower back injury.
26The evidence set out in Exhibit “D”, which is a letter from AusNet to the plaintiff dated 15 July 2022, sets out that the plaintiff originally started working for AusNet on 10 March 2021. The plaintiff had been employed with AusNet continuously from 10 March 2021 until 5 August 2021, when he attended upon Dr Salib, seeking a WorkCover certificate of capacity for his shoulder problems.
27In evidence, the plaintiff stated that he was not seeking a certificate for treatment, nor a certificate for loss of earning capacity, at the time he attended upon Dr Salib. It is difficult to understand what the plaintiff was seeking at that time, as he was engaged in full-time employment in the duties set out in the correspondence, which is part of Exhibit “D”. In the plaintiff’s frank admission, he was seeking the WorkCover certificate of capacity for the purposes of this application for serious injury.
28The plaintiff has given evidence that he suffers from spasms in his lower back at night time when trying to sleep.
Medical opinions
The Plaintiff’s doctors
29The plaintiff did not rely upon any report or opinion from his general practitioner in support of his serious injury application.
Dr David Kennedy, sports and industrial physician
30The plaintiff relied on a report of Dr Kennedy dated 22 September 2020, in support of his application. The plaintiff gave a history to Dr Kennedy of lower back and right shoulder joint symptoms arising out of the strenuous and repetitive nature of his work with the defendant. The plaintiff informed Dr Kennedy that he was off work since the time of his redundancy in January 2020. The plaintiff told Dr Kennedy that he had done some casual jobs for about two weeks in customer service on a number of occasions.
31In the plaintiff’s evidence, he stated that, from September to December 2020, he worked for Australia Post. His job was predominantly driving a forklift, moving around parcels that were contained within crates.
32Dr Kennedy diagnosed the plaintiff as suffering from cervicothoracic spine symptoms in both shoulders.[11] In Dr Kennedy’s opinion, the plaintiff would be unable to perform work which involved movement of his arms at the shoulder joints, particularly above shoulder height and under any load or stress.[12]
[11]PCB 31
[12]PCB 31
Mr Thomas Kossmann, orthopaedic surgeon
33Mr Kossmann prepared a report dated 15 August 2022, after examining the plaintiff on that date.
34Mr Kossmann noted that the plaintiff had difficulty sleeping, and stated that the plaintiff reported to him that he would awake due to pain issues in his back.[13] In that report, Mr Kossmann noted that the plaintiff had told him he was not working and was looking after his parents.[14]
[13]PACB 41
[14]PACB 41
35I note, that by 15 August 2022, the plaintiff had signed a contract with AusNet as a permanent employee, effective from 1 April 2022. The evidence also reveals that the plaintiff had been in continuous employment with AusNet from 10 March 2021.
36The plaintiff, when challenged about this, stated he never told the doctor he was looking after his parents at that stage.
37Mr Kossmann’s opinion was that the plaintiff was unfit for pre-injury duties as a result of his back injuries. In his opinion, this incapacity would continue for the foreseeable future.[15] At that stage, Mr Kossmann thought the plaintiff was capable of working twenty hours a week in work described as “light duties”.[16]
[15]PACB 47
[16]PACB 47
38In respect of the plaintiff’s shoulder injuries, Mr Kossmann was of the opinion that the plaintiff was unfit for his pre-injury duties.[17] Mr Kossmann stated that the plaintiff could commence on twenty hours of work on a light-duties basis.[18]
[17]PACB 48
[18]PACB 48
Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist
39Dr Sullivan prepared a report in support of the plaintiff’s application dated 20 December 2022. Dr Sullivan obtained a history from the plaintiff that he was working full time as a logistics officer. Dr Sullivan noted, under the heading of “Treatments”, as follows:
“Aside from gentle exercise, your client attends Safety Beach from time to time which is a 50-minute driveway (sic) and undertakes activities within the water at around waist depth.
He does not take analgesic medications as he finds the side effects problematic.”[19]
[19]PCB 53
40Dr Sullivan’s opinion was as follows:
“Your client now has a post-traumatic chronic pain condition secondary to soft tissue injury to his lower back including injury and/or aggravation of lumbar spondylosis as well as soft tissue injury to his shoulders including injury to the rotator cuff tendons.
He has chronic pain affecting his lower back and his bilateral shoulders as a consequence. His diagnosis is posttraumatic chronic pain as per the International Classification of Disease, Volume 11 Code MG30.20.
My expectation is that his chronic pain will continue into the foreseeable future and that his condition can be considered stable and permanent.”[20]
[20]PCB 55
The Defendant’s doctors
Mr Michael Dooley, orthopaedic surgeon
41The defendant relied on the opinion of Mr Dooley, orthopaedic surgeon. He prepared a report dated 2 November 2022. Mr Dooley’s opinion in respect to the plaintiff’s lower back injury is as follows:
“… Radiological investigation revealed that he did have some naturally occurring age-related and degenerative disc change involving the low lumbar spine. It revealed the presence of a left-sided L4/5 disc prolapse with L5 nerve root compression. Based on all of the information available, I believe that during the course of his work in 2007, … [the plaintiff] sustained a soft tissue injury to his lumbar spine that did involve a left-sided L4/5 disc prolapse. In the large majority of situations, the natural history of this sort of disc prolapse is improvement with time. This did occur. A disc prolapse does involve some aggravation of the underlying degenerative disc change. … .”[21]
[21]DCB 16
42Mr Dooley went on to state that the plaintiff would suffer some intermittent lower back pain over time. On his examination, Mr Dooley was of the opinion that there was no evidence of objective neural deficit affecting the lower limbs.
43In respect of the plaintiff’s left and right shoulders, Mr Dooley accepts that the plaintiff sustained a soft-tissue injury to his right shoulder, which involved an aggravation of underlying degenerative rotator cuff change. In Mr Dooley’s opinion, the left shoulder injury shown on ultrasound studies relates to naturally occurring age-related and degenerative change.[22]
[22]DCB 16
44In Mr Dooley’s opinion, the plaintiff does not require any further orthopaedic treatment in respect of either his left and right shoulder or his lower back.
45Finally, Mr Dooley’s opinion was that the plaintiff’s employment had been a significant contributing factor to the soft-tissue injuries to both the lower back and shoulders of the plaintiff. He went on to state that the injuries also relate to the natural evolution of naturally occurring age-related degenerative change.[23] Mr Dooley’s opinion was that the plaintiff would experience intermittent lumbar spine pain and some intermittent right shoulder pain into the future. He stated that the plaintiff had a physical capacity to carry out light physical work and clerical-type work.
[23]DCB 17
46The medical opinions tendered in this application are in agreement that the plaintiff did suffer some soft-tissue injury to his lower back in 2007. The doctors accepted that, as at the date of the CT scan, the injuries to the plaintiff were demonstrated at 2007. There is no radiological examination of the plaintiff in respect of his lower back since that time.
47The medical assessors also agreed about the right and left shoulder injuries, as set out in the ultrasound performed on 11 February 2021. Mr Dooley’s opinion was, predominantly, that most of the symptoms suffered in respect of the shoulder injuries is a result of age-related degeneration.
The credit of the Plaintiff
48Mr McWilliams, on behalf of the defendant, submitted that the plaintiff’s credibility has been successfully challenged in this hearing. In particular, the plaintiff’s history about suffering from pain is reported to doctors as being “intermittent”. The plaintiff, in his evidence, says that it was constant and/or persistent pain. The plaintiff’s evidence was that he regularly suffered from back spasms, particularly at night when trying to sleep. On that basis, the plaintiff said the pain symptoms were persistent.
49The plaintiff reported to Mr Kossmann, in August 2022, that he was not working. By that stage, the plaintiff had an ongoing contract with AusNet. Mr McWilliams submitted that that history must have been given to Mr Kossmann, because Mr Kossmann goes on to give an opinion about what work the plaintiff could be capable of performing, both in respect of his lower back and his shoulder injuries. The inference to be drawn, is that Mr Kossmann had no knowledge of the plaintiff’s full-time job at AusNet at the time of his examination.
50In the plaintiff’s affidavit affirmed on 26 February 2021, he stated:
“I have done some casual jobs, for approximately two weeks at a time in customer service roles since the closure of the warehouse. However, I have not been able to obtain any ongoing employment.”[24]
[24]PCB 30 at paragraph 11
51This evidence was that he had worked for approximately three months from September through to December 2020 with Australia Post. The income set out in the Tax Summary,[25] indicates that the plaintiff earned $18,500 in that tax year, with Australia Post. The plaintiff stated that it was an oversight that he did not mention his work with Australia Post. Mr McWilliams submitted that the plaintiff was not being accurate about his work history and as a consequence of that conclusion, he was an unreliable witness in respect to other matters in this case.
[25]PCB 58
52I am not prepared to make a finding that the plaintiff was deliberately trying to mislead the Court in this application. I do have a reservation and concern about the oversight concerning his employment with Australia Post, which was not referred to in his first affidavit. Further, it is of concern that there is no documentation setting out exactly when the plaintiff was informed he had a job with AusNet prior to his commencement date on 10 March 2021.
Consequences of the lower back injury and the bilateral shoulder injuries to the Plaintiff
53The plaintiff relied upon his two affidavits, dated 26 February 2021 and 24 January 2023. The plaintiff also relied upon an affidavit of his brother, John Cordiano, dated 1 February 2023. In those three affidavits and in the course of the plaintiff’s own evidence, he deposed as to the consequences of the two separate sets of injury.
54In my consideration of the consequences, I have to be careful to delineate between what consequences flow from the lower back injury as opposed to what consequences flow from the bilateral shoulder injury. In this case, the evidence makes it very difficult for such a separation of the consequences in respect of the two areas of injury to the plaintiff’s body.
Pain
55The plaintiff, in his affidavit dated 26 February 2021, stated that he continued to have consistent and severe pain in his lower back, with associated stiffness.[26] In his later affidavit, dated 24 January 2023, the plaintiff stated that he:
“… continues to experience pain in my lower back. The pain in my lower back is centralised and radiates into my legs, more often in the right than the left. My lower back pain is generally worse in colder weather.”[27]
[26]PCB 10 at paragraph 27
[27]PCB 15 at paragraph 3
56He goes on to say that the pain in his lower back is worse in the morning and “almost every day when I wake up I experience stiffness and a sharp pain”.[28]
[28]PCB 16 at paragraph 4
57In assessing a consequence for the plaintiff of his complaint of pain, it is necessary to look at what his experience of pain is, what the plaintiff does about it, what medications the plaintiff takes in order to ameliorate the pain, and what medical treatment he receives in respect of the pain. In the plaintiff’s case, he does not take any pain-relief medication. His evidence is that he does not like to take pain-relief medication, and I note that, in one of the medical reports, he said it has side effects for him. The plaintiff has received no ongoing treatment for his pain management. He has been to, and assessed by, a pain management expert, and there is no ongoing treatment for his pain.
58Mr O’Sullivan, on behalf of the plaintiff, has stated the plaintiff has been unable to get treatment. Mr O’Sullivan submitted that the letter seeking physiotherapy in 2022 is an example of that failure to obtain treatment. I do not accept that submission. The plaintiff could, and should have, changed his medical practitioners if he thought his pain levels and/or resulting stiffness and the like was of such a level that he needed treatment. I find that the pain levels described by the plaintiff arising from his lower back injury do not meet the statutory tests of “more than significant or marked” and as “at least very considerable”.
Sleep
59The plaintiff, in his first affidavit, stated that his sleep is interrupted as a result of his lower back injury. He confirmed that his sleep continues to be affected by his lower back injury, set out in his second affidavit.[29] The plaintiff lives alone, so there is no person who can confirm or corroborate what the plaintiff said about his sleep. The plaintiff stated that his sleep is interrupted due to the spasm in his lower back and, as a combination of his shoulder injuries and lower back injury, he can only sleep on his back. The evidence concerning interference to the plaintiff’s sleep is complicated because the plaintiff has been unable to disentangle which injury is causing his sleep disturbance. On the one hand, he cannot sleep on his side, so he is forced to sleep on his back. On the other hand, when he sleeps on his back, he suffers from spasms to his lower back. It is to be noted that the plaintiff, again, has sought no treatment or medication to assist him to overcome, what he describes as, the consequences to him about his sleep.
[29]PCB 11 at paragraph 29 and PCB 16 at paragraph 5
60I am not satisfied that the plaintiff has established that the interference to his sleep, caused by either his lower back injury or his shoulder injuries, is “more than significant or marked” or can be properly described as being “at least very considerable”.
Activities of daily living
61The plaintiff, in his first affidavit, stated that he has difficulty completing the housework chores of cleaning his home.[30] He attributed this difficulty to both his lower back and shoulder incapacity. He also stated that he was unable to perform mowing of a very small backyard without having two breaks. He noted that he gets friends to assist him with the heavy garden duties of weeding and other maintenance.[31]
[30]PCB 11 at paragraph 31
[31]PCB 11-12 at paragraph 31
Sport
62The plaintiff, in his affidavits, sets out his inability to ride his jet ski or his pushbike.[32] In respect of the plaintiff’s difficulties about riding a jet ski, he gave evidence that both his shoulder injuries and his lower back symptoms are jointly responsible for his inability to ride the jet ski. After cross-examination and re-examination, he stated that the predominant problem was his lower back when riding the jet ski. He ceased riding the jet ski approximately seven years ago, on his evidence. The plaintiff’s initial injury to his back was in 2007, and the inference is that he had ridden his jet ski for the period 2007 to 2016. I do not accept that the plaintiff has given up riding his jet ski due to the symptoms as stated in his evidence.
[32]PCB 16 at paragraph 10 and PCB 17 at paragraph 11
63In respect of the statements by the plaintiff that he no longer rides his bike, I note that he also relied on his brother’s affidavit affirmed 1 February 2023. In that affidavit, John Cordiano stated:
“Robert is a push-bike collector. He has really good quality bikes from overseas. Robert no longer rides his bikes like he used to.”[33]
[33]PCB 23 at paragraph 6
64It is difficult to reconcile that statement with a clear and unequivocal statement by the plaintiff saying he does not ride the bike at all. The inference from the statement by his brother, John, is that he continues to ride his pushbikes, but not in the same manner or, perhaps the frequency that he had in the past. Further, it does not say that the plaintiff ceased riding the bike immediately, or at any given time since the injury to his lower back.
65I do not accept that, as a consequence of the lower back injury, the plaintiff has ceased to ride his pushbike and, as a result, there is no consequence applicable to this application.
Social life/employment
66The plaintiff relied upon his allegations that he has reduced his social life as a result of the symptoms he suffers from both his lower back and shoulders but, in particular, his lower back.[34] The affidavit from John Cordiano does not tend to support this particular and specific consequence.
[34]PCB 17 at paragraph 13
67Mr O’Sullivan, on behalf of the plaintiff, submitted that the plaintiff has lost the ability to do heavy physical work. This is a result of the symptoms arising from the lower back injury. The plaintiff is now fifty-three years old and in the natural course of a person’s life when engaged in heavy employment, he or she will have more limited capacity to work in that manner into the future. In contrast, the plaintiff has obtained employment more suitable to his age, experience and physical capacities. As a happy consequence of that, his income has increased markedly, as set out in the letter of 15 July 2022 from AusNet, his current employer. He is now a permanent employee.
Right and left shoulders
68The submissions made opine that the plaintiff suffers from significant pathology for a right-handed man. The ultrasounds, which I have set out in full, demonstrate the full extent of the physical injuries to the plaintiff’s left and right shoulders. It is the consequences arising from those injuries that have to be examined in this application. The plaintiff, in his own affidavit, stated that he is not in constant pain as a result of his shoulder injuries.[35] In respect of the left shoulder injury, the plaintiff has never seen any doctor, and it is unknown at what stage the full-thickness tear of his supraspinatus tendon actually occurred. The plaintiff receives no medication or treatment in respect of those injuries.
[35]PCB 7 at paragraph 14
69The issues in relation to home duties, sport, activities of daily living and loss of capacity to engage in heavy work, all suffer the same problem as those set out in the lower back consequences section of this decision.
Conclusion
70I do not accept that the plaintiff’s consequences in relation to pain in his lower back are very considerable consequences for him, taking into account all of the medical evidence, and the plaintiff’s evidence, as supported by his brother. I find that the consequences of the lower back injury to him, when considered in the range of possible consequences arising from that lower back injury, do not meet the statutory test of “more than significant or marked”, nor can they be properly described as being “at least very considerable”.
71The plaintiff’s application for leave to commence proceedings for pain and suffering damages arising from, or as a result of, the injury to his lower back on 2 January 2007, is dismissed.
72I also do not accept that the plaintiff’s consequences in relation to pain in his bilateral shoulders is a very considerable consequence for him, taking into account all of the medical evidence, and the plaintiff’s evidence, as supported by his brother. I find that the consequences of the bilateral shoulder injury to him, when considered in the range of possible consequences arising from that lower back injury, do not meet the statutory test of “more than significant or marked”, nor can it be properly described as being “at least very considerable”.
73The plaintiff’s application for leave to commence proceedings for pain and suffering damages arising from, or as a result of, the injury to both shoulders on or about 10 October 2012, is dismissed.
74I will hear the parties on costs.
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