Daire v Adams Pest Control Pty Ltd
[2017] VCC 189
•10 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-00897
| LLOYD JOHN DAIRE | Plaintiff |
| v | |
| ADAMS PEST CONTROL PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 March 2017 | |
DATE OF JUDGMENT: | 10 March 2017 | |
CASE MAY BE CITED AS: | Daire v Adams Pest Control Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 189 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the left upper limb – range case
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Humphries & Anor v Poljak [1992] 2 VR 129
Judgment: Leave granted to the plaintiff to bring proceedings to recover damages for pain and suffering injuries suffered as a result of the work accident suffered by him in the course of his employment with the defendant on 24 April 2009.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A E Hill | Slater & Gordon Ltd Lawyers |
| For the Defendant | Mr P A Johnston | IDP Lawyers |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) for injury suffered by him in the course of his employment with the defendant on 24 April 2009.[1]
[1]Transcript (“T”) 75, Line (“L”) 3. The parties conceded that the date of injury was 24 April 2009 and not 22 April 2009 as deposed to in the plaintiff’s first affidavit PCB 7. See Transcript 14
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious injury” is defined as meaning:
“(a) permanent serious impairment or loss of a body function … .”
5 The body function relied upon in this application is injury to the left upper limb; that is, both the left elbow and left shoulder.
6 The plaintiff relied upon two affidavits, sworn 29 October 2015 and 17 February 2017. The plaintiff was cross-examined. I have not summarised the evidence of the plaintiff; however, I will refer to the relevant evidence in my reasoning. In addition, the plaintiff relied on medical reports and both parties relied on other material, which was tendered in evidence. I have read all of the tendered material.
The issues
7 Counsel for the defendant informed the Court that this is essentially a “range case”; namely, that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range.
Credit of the Plaintiff
8 From my observation of the plaintiff in Court, he was a man of few words. I formed the impression that if asked a question, he answered it and did not volunteer additional information. In Court, the plaintiff answered all questions put to him in a direct and frank manner and made appropriate concessions, including that his left upper limb had improved since the initial injury in April 2009 and that the last time he complained of shoulder pain to his general practitioner was around February 2011.[2]
[2]T41; T23
9 During cross-examination, on a number of occasions, the plaintiff was unable to recall specific dates. For example he could not say when he commenced attending boot camp, other than it was before he sustained his work injury. Another example was that he could not recall the exact date of his work accident or the date he commenced physiotherapy for his injury but thought it was within a reasonable time of when he suffered the injury. Given that these events occurred around 2009 and 2010, the fact that he could not remember exact dates from so long ago is understandable. I accept that the plaintiff’s recollection of dates was poor; however, it did not detract from his credit.
10 Counsel for the plaintiff submitted that the plaintiff was stoical. In his second affidavit, the plaintiff deposed that he tries to do what he can, but he gets pain and suffers for it afterwards. He tends to suffer in silence more than complain to people. He said “that is just what I am like”.[3]
[3]PCB 14; T82
11 In Court, the plaintiff was not prone to exaggeration and he gave his evidence in a most uncomplaining way. I took the view that he was prepared to endure a fair amount of pain as he went about his work and everyday activities. I also observed occasions where the plaintiff moved his left arm and winced in the witness box. Based on the plaintiff’s presentation in the witness box, I take the view that he was a stoical plaintiff.
12 Having regard to my foregoing reasons, I take the view that the plaintiff was an honest and credible witness.
13 I note that the plaintiff was under video surveillance. The defendant disclosed in its Court Book that video surveillance of the plaintiff was brought into existence for the dominant purpose of use in the litigation and in respect of which privilege is not waived. No video surveillance was shown nor was its absence explained. I can infer that the surveillance did not assist the defendant’s case.
Analysis of the evidence
14 Prior to working for the defendant, the plaintiff worked in his own handyman business.
15 In 2008, the plaintiff commenced working as a technician with the defendant and his main work duty involved possum trapping.
16 On 24 April 2009, the plaintiff said that he was working from a ladder coming down from the roof when the ladder’s base slipped and caused him to fall two metres onto the ground on his left side. He was taken to Dandenong Hospital where he was an impatient for five days.
17 It was not in dispute between the parties that the plaintiff suffered a work-related injury to his upper left limb that includes the left elbow and left shoulder.
18 As a result of the work injury, the plaintiff fractured the neck of his left radius, which was operated upon, with a prosthetic radial head replacement. An MRI scan showed that his left shoulder problems were associated with a rotator cuff tear. Subsequently, he had an ultrasound-guided cortisone injection into that shoulder without much improvement. He underwent physiotherapy at Back In Motion for twelve months.
19 The issue is whether the consequences of the injury satisfy the statutory test. I must make the assessment of the plaintiff at the time of hearing the application. I must decide whether the impact of the plaintiff’s pain and suffering on his life was, “when judged by comparison with other cases in the range of possible impairments or losses of a body function, … fairly described as being more than significant or marked, and as being at least very considerable”.[4]
[4]Section 134AB(38)(c) of the Act
20 I note that the defendant chose not to have the plaintiff medically examined and, accordingly, did not provide a medical report to the Court.
21 Accordingly, I will examine the consequences to this plaintiff in turn.
Pain
22 The plaintiff’s evidence is that he suffers pain in his left arm every day. The pain in his elbow is worse than the pain in his left shoulder. Further, the pain in his left elbow is getting worse over time. It increases when he over-uses his left arm or tries to do too much. Anything that requires force, like pushing or pulling, causes increased pain.[5] In Court, the plaintiff said that there were days where the pain was not bad, and other days where he could not sleep.[6]
[5]PCB 12
[6]T53
23 The plaintiff reported the pain he suffers to Mr Murray Stapleton, plastic and hand surgeon, in February 2017. The plaintiff was consistent in what he deposed to in his affidavits as to pain and what he told Mr Stapleton in his examination. He reported to Mr Stapleton that he suffers constant pain in his elbow with a reduced range of movement.[7] Mr Stapleton noted that the plaintiff had reached maximum medical improvement.
[7]PCB 56
24 Counsel for the defendant cross-examined the plaintiff about the pain he was reporting to Ms Stephanie Clarke, physiotherapist at Back In Motion, in 2010. However, as the assessment I must make is at the time of the hearing of the application, I am more interested in the level of pain he deposes to in his current affidavit and what he reported in up-to-date medical examinations.
25 I accept that the plaintiff suffers daily pain and constant pain in his left elbow, which increases when he overuses it. Accordingly, I accept that pain is a consequence I can take into consideration and is in the medium to upper range.
Restriction of movement
26 The plaintiff’s evidence is that he cannot straighten his left arm at the elbow, which he has been informed by medical practitioners will never change. This causes him problems carrying things for a long time, because his left elbow does not lock in straight. He cannot pick up anything heavy with his left arm and tends to favour his right arm, which takes most of the weight when carrying things with both hands. He is unable to lift with his left arm above shoulder height. He is unable to do push ups and if he moves his arm in a certain way, he gets a sharp stabbing pain in his elbow.[8]
[8]PCB 13
27 The plaintiff reported his restriction of movement in his left shoulder and left elbow to Mr Stapleton. In his report dated 2 February 2017, Mr Stapleton said the plaintiff has “reached maximum medical improvement”. He said that the plaintiff’s current restrictions and difficulties in movement will be permanent.[9]
[9]PCB 57
28 I accept that the plaintiff suffers restriction of movement in his left upper limb at the elbow and lifting above shoulder height, which are a consequence of his work injury. I accept that these are consequences which I can take into account, which are in the middle of the range.
Treatment
29 The plaintiff’s evidence is that he does not currently have much medical treatment. He infrequently sees his local general practitioner, Dr Zachariah, as he has been told that there is nothing that the doctors can do for him. He has been told that there was arthritic change in his elbow. He deposed that he was informed by Mr Byrne, orthopaedic surgeon, that he may need a total elbow replacement, and by Mr Doig, orthopaedic surgeon, that he may need an arthroscopy of his left shoulder. Currently, he takes Panadol Osteo when the pain is particularly bad. On average, he takes Panadol Osteo, about six to eight tablets per week. He has Endone tablets, which he has not taken for about six months. He tries to get on with his life. He is reluctant to take tablets but sometimes when the pain is at its worse he will take medication.[10]
[10]PCB 13
30 Counsel for the plaintiff submitted that the reason for modest medical treatment was that the plaintiff was at his “maximum medical improvement”, reluctant to take medication and was a stoic man.[11]
[11]T81-82
31 Mr Stapleton said that the plaintiff will not improve and that he will be permanently and significantly impaired because of the work injury. Mr Stapleton thought it was unlikely that the plaintiff’s elbow will deteriorate; however, in relation to the shoulder injury, he said that he cannot be confident in the future, given the rotator cuff tear. He said the plaintiff will require the current medications for the rest of his life.
32 I accept that the treatment the plaintiff has is appropriate and that it will continue into the foreseeable future. The level of treatment is informed by the fact that there is nothing further that the doctors can do for him, together with his stoic nature. I accept the current treatment is a consequence of the plaintiff’s injury and is at the lower end of the scale.
Heavy duties
33 The plaintiff’s evidence was that, prior to the injury, he and his wife carried out extensive renovations at their residence, which took place over three years.[12] His wife decorated the inside of the house. The plaintiff did some work on the roof and laid out the two-acre garden, which involved new garden beds, walls and plants. Renovations of the kitchen and decking area were done by a combination of himself and the builder. For any aspects that required a plumber or electrician, he used a qualified tradesman.[13] Because of his work injury, he would not now be capable of performing the physical work he performed on the Kallista property.[14]
[12]T10
[13]T54-54
[14]T55 L10-12
34 In 2012, the plaintiff and his wife undertook less extensive renovations of their holiday house in Phillip Island, which took six to eight months. The work involved mainly painting and decorating.[15] The plaintiff painted and decorated, worked from a step-ladder and knocked nails into the wall. He had renovation assistance from his wife and son-in-law.[16]
[15]T10 L23-31
[16]T10-11
35 The plaintiff said that he took great pride in maintaining the garden and house at the Kallista property. Since the injury, he cannot use the Whipper-Snipper or petrol-driven machines to maintain the garden due to the vibration. He is unable to do any heavy duties at home that require constant heavy or repetitive use of his left arm. He now employs a gardener to assist in the garden. His neighbour or son-in-law do heavy tasks like Whipper-Snipping. He has attempted these tasks, but the pain increases, requiring him to cease the heavier tasks.[17] The plaintiff reported such restrictions to Mr Stapleton.[18]
[17]PCB 13
[18]PCB 56
36 I accept that for a person like the plaintiff, who enjoyed working in his garden and performing heavy duty work on his property, that to now be restricted by his work injuries is a consequence in the mid to high end of the range, which I can take into account.
Golf
37 The plaintiff’s evidence is that prior to his work injury he played golf about once or twice per week. He was a member of Churchill Golf Club where he would play with a group of friends and at some other golf courses. He played golf virtually every Wednesday afternoon with friends during the summer months and would spend a long weekend on a golfing trip to country Victoria annually with friends. He told the Court that when he commenced employment with the defendant, the amount of golf he played was reduced but he still played after work at night.[19] He derived enjoyment from the game and the social interaction. He cannot play because of his upper limb injury. He misses this activity.
[19]T14
38 In cross-examination, the plaintiff agreed with counsel for the defendant that he has not played golf since 2009 before the work injury.[20] In re-examination, he told the Court that if not for his injury, he would still be playing golf.[21]
[20]T25
[21]T57
39 The plaintiff reported this consequence to Mr Stapleton, who accepted that playing golf is now a problem for the plaintiff.
40 I accept that for a man who has played golf regularly to be no longer able to participate in this activity due to his injury is a consequence in the middle to high end of the range, which I can take into account.
Recreational activities
41 The plaintiff’s evidence was that he was a keen woodwork enthusiast before the work injury. The plaintiff reported to Mr Stapleton that he enjoyed woodworking, but is now limited because of his upper limb injury. Lifting, pushing and pulling was painful.[22] Running and walking are affected by the pain in his upper left limb. The plaintiff said he could no longer run because the jarring causes an immediate aggravation of pain in his elbow.
[22]PCB 56
42 I accept that the impact on his recreational activities are consequences which I can take into account and I consider are in the middle of the range.
Sleep
43 The plaintiff’s evidence was that, prior to the work injury, he slept very well and would get between seven or eight hours’ sleep throughout the night. Because of his left arm injuries, he now wakes throughout the night. If he rolls onto his left arm, he wakes. He estimates that every week he would wake up on average three nights in pain, and only manages a couple of hours’ sleep. At these times, he takes Panadol Osteo to try and get back to sleep. The plaintiff reported to Mr Stapleton that he suffers pain when he lies on his left shoulder.
44 I accept that this is a consequence which I can take into account, which is at the upper end of the scale.
Work
45 Prior to his injury, the plaintiff said that he enjoyed working as a possum trapper for the defendant, which involved locating where the possum was getting in, organising the placement of the trap and catching the possum, then relocating the animal. He was able to use his handyman skills to fix the spot where the possum had gained access to the house. He said that the job also involved more thought about how to solve the problem.[23]
[23]PCB 15
46 In March 2010, the plaintiff initially returned to light work duties for two to three weeks before he returned to his normal duties of possum catching but could not manage the work.[24] In cross-examination, he agreed that he continued his work as a possum catcher for four years but said he performed his work in pain. He said that to manage with difficulties in his duties, he would liaise with the girl in the office and other technicians would be allocated if he thought the task would be too hard for him to undertake.[25] This statement is consistent with my conclusions as to the plaintiff being a stoic.
[24]T28
[25]T17-18
47 Whilst giving his evidence in Court, the plaintiff indicated that there were a number of reasons why he had to cease his possum catching work with the defendant, including his upper limb injury, having been bitten by a spider on his finger, and that his injury made it unsafe to work at heights on high ladders and climb into small spaces.
48 The plaintiff no longer performs jobs involving possums or working in roof cavities.
49 The plaintiff’s current job involves working in pest control, which involves setting up bait stations for rodents and insects and is much lighter work. He finds the job more boring and nowhere near as variable as the possum-catching work. He said he really misses this work.[26]
[26]PCB 15
50 While I accept there were a number of unrelated factors as to why the plaintiff had to cease the work with the defendant as a possum catcher, I can take into account the difficulties he encountered at work due to his left upper limb injury. I accept that this is a consequence I can take into account, which is at the middle of the range.
Mood
51 The plaintiff’s evidence is that his mood and demeanour has changed. He becomes frustrated easily due to the lack of physical strength in his left upper limb, the pain in his left upper limb and that he is prevented from doing activities that he enjoyed. He becomes frustrated by having to constantly think about whether he is able to do a task with his left arm. The plaintiff said he is shorter with people as a result.[27] I accept that a change in the plaintiff’s mood is a consequence which I can take into account and is in the middle of the range.
[27]PCB 15
Other activities
52 The plaintiff’s evidence was that in the past he took for granted things or activities which he now finds very difficult. He said there are little things that have changed which affect him. For instance, in his affidavit he stated that he lifted his two-year-old grandson and had to put him down after thirty seconds because of the pain in his left shoulder and left elbow. The plaintiff said these are activities that are a constant reminder of the injury and his limitations.[28] I accept that not being able to lift his grandson is a consequence at the high end of the range.
[28]PCB 16
Renovating and “Flipping” houses
53 The plaintiff’s evidence was that he and his wife enjoyed renovating houses and establishing gardens prior to sustaining his work injury.
54 In re-examination, the plaintiff explained that he planned to purchase an older house with his wife and “flip it” for a profit before moving onto the next house. He planned to do the physical handyman work and his wife would do the decorating and together, they would landscape the garden. This is an activity that they had done in the past together and enjoyed. He intended to do all the work besides the electrical and plumbing work. He told the Court that he is not capable of pursuing this idea now due to his upper left limb injury. I accept that this is a consequence at the high end of the range.
Stoicism
55 As aforementioned, I accept the plaintiff can be described as a “stoical plaintiff”. I accept the injury suffered by a stoical plaintiff is not to be viewed any less seriously merely because he manages to remain more active than might have been expected given the level of pain.[29]
[29]Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
Conclusion
56 I accept that the plaintiff has suffered the abovementioned consequences. Those consequences are supported by the evidence of the plaintiff and the medical evidence. I accept that the plaintiff has had a physically active life and, to all intents and purposes, lives with his injury and gets on with it. I accept that he has continued working but has had to modify his work activities to accommodate the injury and constant pain.
57 I am satisfied that the plaintiff was involved in a work accident which, to this plaintiff, resulted in him experiencing symptoms of a physical nature. The consequences of his left upper limb have impacted upon his life as he knew it before the work accident. He has suffered for eight years and the limited medical evidence is guarded as to the future. I accept that the plaintiff’s left upper limb injury is permanent.
58 For the foregoing reasons, I am satisfied that the plaintiff has established that the consequences to him of his impairment can reasonably be described as being “serious”. In my experience, the consequences to the plaintiff may measure up well against other serious injury applications where plaintiffs have been successful. In considering the consequences, I have not treated each consequence as equal, but rather attributed appropriate weight to each consequence in the light of the evidence.
59 I accept that the left upper limb injury has consequences to the plaintiff that, when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of hearing as “at least very considerable” and certainly “more than significant or marked”.[30]
[30]Humphries & Anor v Poljak [1992] 2 VR 129
60 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for pain and suffering injuries suffered as a result of the work accident on 24 April 2009.
61 I will hear the parties on costs.
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