Damiano v TAC

[2010] VCC 466

IN THE COUNTY COURT OF VICTORIA Unrevised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES-COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-09-02611

FRANK DAMIANO	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	4 and 5 May 2010
DATE OF JUDGMENT:	17 May 2010
CASE MAY BE CITED AS:	Damiano v TAC
MEDIUM NEUTRAL CITATION:	[2010] VCC 0466

REASONS FOR JUDGMENT

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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – Section 93 – injury to the right shoulder.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Jewell SC with	Nowicki Carbone
Mr M Walsh
For the Defendant	Mr D Myers with	Solicitor to the Transport
Ms M Britbart	Accident Commission
HER HONOUR:

1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to section 94(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 15 March 2008 (“the said date”).

2 Section 94(6) of the Act provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied

that the injury is a serious injury.”

3          The definition of “serious injury” relied upon by the plaintiff is under s.93(17)(a) – “a serious long term impairment or loss of a body function”.

4          The body function relied upon by the plaintiff in this application is the right shoulder.

5          The inquiry under sub paragraph (a) of the definition focuses attention, firstly, upon whether the injury has produced an organic impairment or loss of body function; and then, secondly, by reference to the consequences of that impairment, whether it is serious and long term.

6          The serious injury defined by sub paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that a mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.

7          In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.

8          The plaintiff relied on three affidavits and gave viva voce evidence. He was cross-examined. The plaintiff also relied on affidavits sworn by Michael Whelan on 25 September 2009, Frank Monteleone on 7 September 2009 and Enzo di Corrado on 14 October 2009. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.

The Plaintiff’s Evidence

9          The plaintiff is a single man aged sixty eight, having been born on 5 March 1942 in Italy. He completed the equivalent of Year 6 in his village and then worked for his uncle as a cobbler for about ten years and also worked on a family farm. In 1966, he found employment in Switzerland as a barman, where he remained for six years until emigrating to Australia in 1972.

10        Thereafter, the plaintiff found work as a baker and bread maker before eventually finding employment as a labourer with Saipem, an Italian gasworks company.

11        The plaintiff was employed by Saipem in local and international projects for about twenty five years, mainly in Australia, Asia and Africa. That job involved heavy, labour intensive tasks, lifting up to fifty kilogram flanges which needed to be carried above his shoulders. He was required to lay hundreds of kilometres of gas pipe from point to point. The plaintiff was eventually promoted to the position of specialist hydraulic tester.

12        The plaintiff suffered a right shoulder injury when he fell into a trench whilst working in Western Australia in 1986. That injury required intense physiotherapy and self exercise, and he was off work for about a year. It eventually healed and he was able to go back to his usual employment. He did not suffer any long term effects from the injury and was able to perform his pre-injury tasks.

13        In about 2002, the plaintiff was involved in a minor vehicle accident, about which he provided a statement to LKA Group. Police and ambulance did not attend and the plaintiff does not recall suffering any injury.

14        The plaintiff’s last job before the said date was with Nacap. He commenced work with that company in 2002. He was at times working ten hours a day, seven days a week. In his March 2010 affidavit, he deposed that he worked there until retirement.

15        On or about 30 October 2006, whilst working for Nacap, the plaintiff suffered a right leg injury when a steel wheel and a work colleague fell on his leg. He continued working in pain for another two or three weeks until the contract finished.

16        When the plaintiff returned to Melbourne, he saw Dr Nguyen, general practitioner, who referred him for an x-ray, and then to Mr Miller, orthopaedic surgeon, who operated on his leg. The plaintiff initially deposed that this injury kept him out of work for about a year.

17        In his second affidavit, the plaintiff deposed that since receiving treatment and taking time to recover, the injury had fully resolved.

18        In his third affidavit, the plaintiff deposed he still experiences pain and muscle weakness in his right lower limb. However, he is no longer receiving treatment for that injury and it does not have more than a minor impact on his ability to live and function as he wishes.

19        In March 2008, the plaintiff received a settlement from WorkCover by way of redemption of his weekly payments.

20        The plaintiff deposed that, prior to the said date, he was not suffering from any other illness or injury and was generally in good health, enjoying both his lifestyle and retirement from working life. He was diagnosed with Type 2 diabetes towards the end of his working life and was on various medications to stabilise his condition.

21        During the hearing, there was some issue as to whether or not the plaintiff had retired as at the said date. His affidavit material evidence suggested this was the case, as did Dr Nguyen’s note dated 8 March 2008.

22        However, in his viva voce evidence, the plaintiff said he was about to go back to work as at the said date. He denied he was retired and said he had finished a project and was waiting for another one to come up. He denied that he was enjoying retirement because “he had nobody at home” and he was waiting for another project to start at Easter with Nacap. If he felt good, he was ready to go to the next job. He was fully fit and waiting for the next job before he injured his shoulder. If a history had been taken of him having retired, the relevant doctors “did not understand.” When he said he was retired on his claim form dated 21 June 2008, he meant he had retired from his last job, not retired totally.

23        Initially, the plaintiff denied he was getting certificates at the said date because of his leg injury because no-one was paying him so he did not need certificates. He then agreed he was on light work certificates which limited lifting to no more than two kilograms.

24        A number of documents from CGU were put to the plaintiff, which detailed there was a trial return to work with Nacap on 13 March 2007, that the plaintiff could not do any useful work and that a deal was arranged with his solicitors whereby his compensation payments were redeemed.

25        The plaintiff denied he was told by Nacap there was no useful work for him. He then agreed there was redemption of his weekly payments in March 2008, in the sum of $15,000 “for the suffering”.

The Accident

26        On the said date, whilst stationary waiting to make a right hand turn, the plaintiff’s vehicle was hit from behind by another vehicle, causing his vehicle to crash into the car in front of him (“the accident”).

27        The plaintiff was thrown violently forward and then backward. The police and ambulance attended the accident scene. Although the plaintiff was experiencing right arm pain, pain in his right forearm, right shoulder and neck, he decided to drive home and rest.

28        The following day, the plaintiff continued to experience severe pain in his neck, right shoulder and right arm and he attended his doctor, Dr Nguyen, who referred him for an x-ray which did not provide any conclusive evidence of right shoulder damage. The plaintiff was given painkilling medication and told to rest.

29        The plaintiff continued seeing Dr Nguyen in relation to his neck, right shoulder and right arm pain which continued to worsen. He also began to experience referred pain to his neck, back and left knee.

30        In May 2008, Dr Nguyen referred the plaintiff for an ultrasound of his right shoulder which showed a full thickness tear of the supraspinatus and some bursal fluid. Dr Nguyen then referred the plaintiff to Mr Miller, orthopaedic surgeon.

31        The plaintiff first saw Mr Miller in June 2008, at which time he advised the plaintiff that he required surgery to repair his right shoulder damage.

32        On 22 September 2008, Mr Miller operated on the plaintiff’s right shoulder at the Western Private Hospital. Thereafter, the plaintiff remained in hospital for two days and had physiotherapy to help strengthen his arm muscle. He stopped physiotherapy in or about December 2009 because the TAC cut off funding for this treatment.

Lower Limb Problems

33        In cross-examination, the plaintiff agreed he was still taking tablets for his right leg and then disagreed that it still gave him some pain – “it was his right shoulder.” He then said he had had pain in his right leg last week when the weather changed, but denied he had such pain on a weekly basis. He agreed that because of his right knee, he had to use a walking stick, but he could not remember when he last used one.

34        The plaintiff takes tablets for his shoulder and “maybe they work for his leg as well”. He also takes tablets for diabetes, blood pressure, and Losec for his stomach.

35        The plaintiff suffered from left knee pain following the accident and he consulted Mr Miller in relation thereto. Mr Miller performed an arthroscopy on the plaintiff’s left knee on 10 August 2009. Sometimes however, the plaintiff still has left knee pain when the weather changes, and he relies on analgesics to treat that pain. However, he generally finds that the pain and functional restrictions in his right shoulder overshadow and outweigh the ongoing left knee pain.

36        When his left knee problems increased, the plaintiff started to have some aching in his lower back. He reported lower back pain, likely secondary to his altered gait, when he saw James Lundberg, treating physiotherapist, in June 2007.

37        The lower back pain radiated down his right leg. The plaintiff disagreed that by February 2007, his left leg was worse than his right as his physiotherapist had reported, and said his right was always worse. His right is worse now, but at present he has no pain.

38        The plaintiff agreed he told his physiotherapist in late November 2007 that squatting was his major problem. Further, he agreed that in late 2007 he was prescribed analgesics and he still had right leg thigh pain and knee pain, he was limping and he was on Worker’s Compensation.

39        In February 2008, the plaintiff was still getting physiotherapy and he had a weak right leg, and in January 2008 he was seeing a lawyer regarding his payout from work. In March 2008, his legs were still the same and then he had the accident.

40        The plaintiff agreed that he had deposed to and experienced referred pain to his neck, back, right arm, right hand and left knee after the accident.

Current Treatment

41        The plaintiff currently sees Dr Nguyen on a regular basis in relation to his right shoulder.

42        In examination-in-chief, the plaintiff said that he now takes Panadeine Forte for his shoulder when he needs it, every night; every second night. He also has a tablet to help him sleep. A receipt for Panadeine Forte which had been prescribed by Dr Nguyen on 12 April 2010 was tendered.

43        In cross-examination, the plaintiff agreed that he took tablets for his left knee all the time, and he still does when he is in pain. He agreed from late 2008 to early 2009, he was going to the doctor every four or five days with knee problems. He agreed the use of painkillers at that time was connected to increasing problems with his knee.

44        The plaintiff could not recall being prescribed Tramadol by Dr Hall at the Western Private Hospital pharmacy in 2007.

Pain and Restriction on Activities

45        The plaintiff continues to suffer from pain, stiffness and restriction of movement in his right shoulder. He continues to find it difficult to lift his right arm above his head and he struggles to push, pull or carry heavy items. He finds that physical activity requiring him to use his right shoulder generally increases his pain and, as a result, his shoulder injury has significantly impacted upon his functionality.

46        Whilst his other medical conditions are of varying degrees of nuisance to him in his everyday life, including his right lower limb and left knee pain, the plaintiff considers it is his right shoulder injury that has most considerably reduced his ability to enjoy his social, domestic and recreational activities.

47        Since the accident, the plaintiff has had difficulty sleeping and he takes medication to help him sleep. He is generally uncomfortable in bed due to his right shoulder injury and often wakes after a few hours of sleep because of pain. He generally feels lethargic and lacking in energy when he wakes up. He tends to be more frustrated and irritable than he was before the accident.

48        Since the accident, the plaintiff has become depressed, stressed and anxious. He finds it difficult to get motivated and tends to leave the house less often, and finds he is more reclusive than he was before the accident.

49        Since the accident, with the injury to his right shoulder, the plaintiff has continued to find it difficult to complete simple tasks around the house, including cooking and cleaning, due to the movements required of his shoulder. He also finds it increasingly difficult to dress himself because of right shoulder pain when he stretches his right arm to put on shirts or jumpers.

50        As he lives alone, the plaintiff has to do things at home, but after doing household tasks, which he does slowly, he has to sit down and rest because his shoulder pain becomes stronger. When he does housework, like washing the dishes, he uses his right hand slowly but then gets more pain. He has a lady who comes to do the cleaning and had help in this regard before the accident.

51        Since the accident, the plaintiff has found it difficult to complete maintenance tasks around the house. Prior thereto, although slightly inhibited by his right lower limb injury, the plaintiff generally did most things that required maintenance without assistance.

52        Due to his injury, the plaintiff now rarely attempts to complete difficult tasks and any maintenance that he does is at a slower rate, after which he needs to rest. He often needs to ask for assistance from friends to do some tasks.

53        Prior to his shoulder injury, the plaintiff was an avid gardener. While he had some restrictions due to his leg injury, he was still able to attend to gardening and his vegetable patch as long as he undertook it in a guarded manner. Since the accident, he has had difficulty gardening and attending the patch and has trouble using his right shoulder to dig, rake or tend plants and generally relies on assistance from friends to tend the garden. He is stopped from digging because of his shoulder. His knees would stop him doing it but the right shoulder is the major problem.

54        A friend comes and helps with the vegetable garden because the plaintiff cannot dig. Prior to the accident, the plaintiff had someone do his lawns and also to do bits and pieces around the house.

55        Since the accident, the plaintiff socialises less than he used to, previously enjoying going out with friends to local cafés or to the Italian Social Club on a regular basis despite his right lower limb pain. He is less able to drive because of his right shoulder injury and he is reliant on friends to pick him up. When he does attend social functions, he finds it difficult to participate in activities or keep sustained conversation due to his right shoulder pain and associated difficulty concentrating, and he has become somewhat of a recluse due to his shoulder injury.

56        Prior to the accident, the plaintiff did the household shopping. Since then, he has had difficulty doing it. If he does the shopping, he tries to carry light items and only do small amounts at a time, and he tends to use his left arm to carry heavy items and sometimes he gets help. He has to rest after a while if he carries heavy things. In cross examination, he agreed that if he bought a box of beer, he could lift it out of the boot of his car.

57        The plaintiff deposed that since the accident, he has had great difficulty in participating in his favourite outdoor activity of hunting. While he was restricted from hunting as often as he would have liked because of his leg injury, he was still able to partake in the sport on a limited basis. However, he now struggles to do so due to his shoulder.

58        In cross-examination, the plaintiff conceded that he had not gone hunting or engaged in any other sporting activities since injuring his right leg and that he was hopeful of returning to that activity later in life when he retired. Both his leg injury and his shoulder condition would prevent him from going shooting.

59        In re examination, the plaintiff said he walks every day for about an hour, but slowly. He does not need a stick. He limps a little all the time because of his knees. He has got some pain in his back all the time, some days more than others, and he has to sit down at home and rest because of the pain in his back, knees and the shoulder, where he has got the most pain.

60        The plaintiff is quite “ok” driving now. He downsized from a four-wheel drive manual to an automatic smaller car because it was painful changing gears and it was difficult when he drove. Sometimes his shoulder is a little bit sore after driving, but not too much.

Lay Evidence

61        Mr Michael Whelan swore an affidavit on 25 September 2009. He is a friend and next-door neighbour of the plaintiff and sees him often. He considers the plaintiff to be like a father to him. Mr Whelan has always helped the plaintiff out, but since his accident, the plaintiff’s ability to complete his usual household tasks has been reduced and he and his wife now regularly help him around the house.

62        The plaintiff often complains to him about his right shoulder pain, in particular, his sleeping difficulties and the fact that he often sleeps in a chair as it is more comfortable. He has given the plaintiff a bean bag to rest his arm on in bed to take the pressure off his shoulder.

63        As a result of the shoulder injury, the plaintiff sold his manual four-wheel drive vehicle and purchased a smaller automatic vehicle. Although he can drive himself to the shops, the plaintiff sometimes asks for assistance to take the shopping out of his car and sometimes Mr Whelan goes with him to help. He has driven the plaintiff to medical appointments because it is too difficult for him to get there by himself.

64        Mr Whelan often helps the plaintiff with gardening and his lawns. He and his wife help to hang out his washing sometimes, as the plaintiff is quite short and struggles to reach the line with his sore shoulder. The plaintiff has a cleaning lady, paid by the TAC who comes over and helps on Thursdays.

65        Mr Whelan often helps the plaintiff take out the bins as he struggles with them if they are full. He sometimes brings the bins in and closes the gates at night so the plaintiff does not have to reach and do it.

66        The plaintiff has moved everything to chest height so he does not have to reach up and get things, and he has a step ladder in his kitchen if things are too high up.

67        Although he has needed increasing assistance as he has gotten older, the injury to his right shoulder has really changed things for the plaintiff. He does not like to ask Mr Whelan or his wife for help and, in the past, would try to do most things himself. However, since the accident this is no longer the case.

68        Mr Frank Monteleone swore an affidavit on 7 October 2009. He has known the plaintiff for approximately twenty five years and lives nearby and sees the plaintiff regularly.

69        Before the accident, they would often go shooting together in New South Wales to hunt for ducks and quail from March to June. They also hunted for pigs, goats and sometimes rabbits.

70        Since the accident, the plaintiff no longer goes with them on shooting trips and has said he cannot attend because of shoulder pain which makes it difficult for him to shoot.

71        The plaintiff would often drive Mr Monteleone and others to those trips because he had a large four-wheel drive, but because of his right shoulder injury, he now finds it difficult to drive long distances. The plaintiff is upset he no longer can attend those shooting trips because of his shoulder pain.

72        Mr Monteleone has noticed a change in the plaintiff’s mood since the accident and he could be quite sad now which was unlike him. The plaintiff does not feel like coming when they ask him out to a restaurant or for a drink, whereas before the accident he would often come out and socialise. Mr Monteleone has taken shopping to the plaintiff’s house from the market when he has been unable to do it himself.

73        Mr Enzo di Corrado swore an affidavit on 14 October 2009. He has worked with the plaintiff since 1972 and was a supervisor for gas line projects.

74        Prior to the accident, the plaintiff was his Number 1 worker. Every time he got a pipeline job, the plaintiff would be the first person he would call as he was very experienced and a hard worker. Mr di Corrado does not know a lot about the accident, but the plaintiff told him he has not been able to work as a result thereof. Every time there is a new job, Mr di Corrado calls the plaintiff to see if he is available. However, since the accident the plaintiff has not been available, but Mr di Corrado intends to keep calling him in case he feels well enough to work.

75        There is a new contract which was scheduled to start in March 2010 which will last for about two years, involving laying 1,000 kilometres of gas pipelines. If the plaintiff worked in that job, he would earn between $2,000 and $2,500 a week. Mr di Corrado has made it clear to the plaintiff that he will have the first chance to do the job if he is able to.

The Plaintiff’s Medical Evidence

76        The plaintiff attended Dr Nguyen on 15 March 2008. He was initially treated with analgesia, heat packs and rubs. The plaintiff returned for review in relation to a flare-up of his right shoulder in May 2008, at which time Dr Nguyen expected the plaintiff had rotator cuff symptoms. An ultrasound was performed which confirmed a tear. The plaintiff was treated with analgesia and referred to Mr Miller. Following surgery performed by Mr Miller, the plaintiff had analgesia and non-steroidal anti-inflammatories followed by physiotherapy.

77        Dr Nguyen considers the plaintiff may require medication for shoulder pain, and physiotherapy, and further specialist orthopaedic review as required.

78        As a result of his right shoulder injury, he considered the plaintiff is restricted when performing his normal social, domestic and recreational activities. However, Dr Nguyen noted the extent of the impact was hard to be estimated and occupational rehabilitation assessment was necessary to determine the full extent.

79        Dr Nguyen noted that the plaintiff had an injury to his right leg suffered at work in 2006, resulting in a large haematoma tear of muscles and chondral injuries to the right knee. There was surgery to those areas and the plaintiff had analgesia pain relief and non-steroidal anti-inflammatories followed by physiotherapy. Dr Nguyen commented that the plaintiff’s pain was well managed with simple analgesia and will continue to be so in the foreseeable future. He thought the plaintiff’s right leg would be weak and he would be suffering chronic pain, and that the plaintiff would compensate by relying more on his left leg to support him and that would result in pain. He thought the plaintiff would require ongoing treatment with pain relief and further orthopaedic specialist review was required.

80        In Dr Nguyen’s view, there was no doubt the plaintiff’s right knee injury would restrict his ability to take part in domestic, social and recreational activities. He made the same comment about not knowing the full extent of that problem and concluded the general prognosis that the right lower limb should be good.

81        Dr Nguyen noted the plaintiff’s left knee pain around August 2007 as a result of reliance on his left leg because of his right leg injury and the use of a walking stick.

82        The plaintiff complained of left knee pain around December 2008 and was referred to Mr Miller, who carried out an arthroscopy.

83        In Dr Nguyen’s view, there was a possibility that the car accident could have aggravated the plaintiff’s left knee pain. Dr Nguyen thought that pain was currently well managed and required regular analgesia and continued to require treatment in the foreseeable future. He made a similar comment as to the restriction caused by left knee pain and the need to have a full assessment to clarify the extent of the problem.

Correspondence and Referrals from Dr Nguyen

84        Dr Nguyen referred the plaintiff to Dr Anavekar for review of hypertension, reflux and diabetes on 12 May 2008. He referred the plaintiff to Mr Graeme Miller on 17 May 2008 for treatment of his right rotator cuff and made a referral for the same condition to Mr Russell Miller on 31 May 2008.

85        Dr Nguyen wrote to the TAC on 1 October 2008 seeking payment of transport for the plaintiff to attend medical appointments. He wrote requesting at least four hours of home help twice a week on 11 November 2008 and made a similar request in January 2009.

86        On 16 April 2009, Dr Nguyen reported that the plaintiff stated he had injuries to his right shoulder and left knee in the car accident and that he had seen Dr Burn in that clinic on 15 March 2008. At that stage, Dr Nguyen noted that the plaintiff’s right shoulder injury was obvious. He thought his left knee pain was trivial at that time. However, the plaintiff started to see Dr Nguyen for a left knee complaint on 16 December 2008 and it was noted pain in the left knee had not settled with the simple measure of analgesia.

87        In a letter of referral to Mr Miller of 29 January 2009, Dr Nguyen thanked him for seeing the plaintiff for persistent left knee pain for some time now since his motor vehicle accident.

88        Dr Nguyen attended for cross-examination.

89        On the last attendance on 17 April 2010, the plaintiff complained it was difficult to manage housework and he had aching in the right shoulder and left knee. He advised the plaintiff not to try to do anything to hurt himself further or elevate the problem and thought he would need help with home duties.

90        The plaintiff’s shoulder has been stiff and he continues to have pain. The range of movement had never been the same when compared to before the surgery or before the injury. It would no doubt require ongoing pain relief treatment. Dr Nguyen has recommended physiotherapy from time to time which would help improve the stiffness of the shoulder and improve the range of movement. Alternative therapies such as acupuncture and massage have also been prescribed.

91        Dr Nguyen also told the plaintiff he might need specialist review of his shoulder again because his shoulder was getting worse and the pain was persisting.

92        Dr Nguyen confirmed the contents of Mr Miller’s operation notes and commented that the tear shown of 2.5 centimetres was quite large, as a normal tear was about 1 or 1.5 centimetres.

93        To Dr Nguyen’s knowledge, there was no problem with the plaintiff’s right shoulder before the accident.

94        Dr Nguyen has recently prescribed Panadeine Forte and sometimes Tramadol for the plaintiff’s right shoulder. Tramal or Tramadol is stronger than Panadeine Forte. He tells his patients to only take pain relief if “they really need it” because of the side effects.

95        That medication has helped the plaintiff but the pain is still a long-term problem. Most importantly, from time to time the plaintiff would probably need to see a specialist again.

96        The reference to analgesia in Dr Nguyen’s notes may have included over-the- counter medication.

97        Panadeine Forte and Tramal have been prescribed over the last two years or so for both knee and right shoulder pain. Dr Nguyen’s notes on occasion list the medication but not the problem for which it was prescribed. At times there have been repeat prescriptions.

98        Mobic and Panadeine Forte were prescribed on 23 June 2008. Tramal was prescribed on 24 July 2008 for shoulder pain. It was again prescribed on 28 October 2008. On 29 January 2009, 3 February 2009 and 19 May 2009, Panadeine Forte was prescribed. On 17 August 2009 Panadeine Forte was prescribed for a sore knee. In February 2010, Tramal was prescribed. On 23 March 2010, Tramal was prescribed for right shoulder pain, then, on 12 April 2010, Panadeine Forte was prescribed and “shoulder still aching” was noted.

99        The plaintiff’s range of movement is normally stiff. He is unable to lift his shoulder above his head and he has scarring on his shoulder as a result of the surgery which causes pain. When he raises his arm beyond ninety degrees, because of his rotator cuff injury, he experiences pain. There is a possibility of arthritis in the future. Dr Nguyen has not noticed any muscle wasting.

100       The plaintiff had tried to do the best he can, having been a man with a history of physical work, and he has problems around the house, like lawn mowing, and he needs some help doing it.

101       His right shoulder is the main issue and then the right thigh and right knee; then the left knee and then the back. The left knee has a middle to fair prognosis. From time to time, but not always, the plaintiff has been prescribed medication for the right leg. Most of the time, medication is for the shoulder and sometimes for knee pain as well.

102       In cross-examination, Dr Nguyen agreed the plaintiff has not had further investigation. However, the plaintiff had seen Mr Miller from time to time and they discussed his shoulder.

103       Dr Nguyen confirmed the plaintiff would require regular analgesia for knee pain and that that pain would restrict his domestic, social and recreational activities, as would his shoulder condition.

104       Dr Nguyen understood that the plaintiff had had some restrictions from his knee injury before the shoulder injury, but thought that he would require help anyway because of his shoulder injury.

105       Dr Nguyen confirmed he had given the plaintiff a certificate in late March 2008 covering the period to 1 April 2008 setting out a two kilogram lifting limit, but not certifying as to the number of hours which could be worked.

106       Dr Nguyen was taken to an entry on 8 March 2008 where it was noted the plaintiff was considered retired, and also a note of 14 November 2008 made by his partner that said, “Retired, at a loose end”.

107       Mr Russell Miller, orthopaedic surgeon, first saw the plaintiff on 22 November 2006 on referral from Dr Nguyen for a right knee problem following an accident at work on 13 October 2006.

108       The plaintiff underwent surgery on 2 July 2007 when a quadriceps tear was debrided and the muscle repaired. A right knee arthroscopy showed a tear in the medial meniscus which was debrided, as was a chondral erosion in the medial femoral condyle. Mr Miller felt the long term prognosis of the knee should be good.

109       The plaintiff presented to Mr Miller for an evaluation of a right shoulder problem on 19 June 2008. It was noted he had a significant improvement after the right leg surgery.

110       The plaintiff told Mr Miller of the accident.

111       Clinical examination showed a good range of motion in the right shoulder with irritability and weakness around it. It was noted an ultrasound had been carried out in May 2008.

112       Mr Miller carried out a right open rotator cuff repair and subacromial decompression on 22 September 2008. At that time, it was noted there was a massive rotator cuff tear involving almost the entire cuff and it was grossly retracted. There was an impinging tuberosity and an osteotomy was performed.

113       When seen on 22 September 2008, the plaintiff had had significant improvement in his shoulder symptoms, but still had ongoing symptoms. He was next seen on 2 February 2009 complaining of deteriorating symptoms in his left knee. On examination on 7 April 2009, he complained of ongoing left knee, right knee and right shoulder symptoms and, when seen on 6 July 2009, arrangements were made for a left knee arthroscopy.

114       That surgery was performed on 10 August 2009. Chondral erosions were noted over the medial femoral condyle and the medial tibial plateau and these were debrided. There was a complex tear to the mid and posterior portions of the medial meniscus which were resected leaving fifty per cent of the meniscal rim intact. Further erosion on the patella was debrided.

115       On the last examination 10 August 2009, Mr Miller commented that the plaintiff had ongoing right knee symptoms but he thought that the prognosis should be good. There had been some improvement following the left knee arthroscopy but, in Mr Miller’s view, the symptoms were likely to deteriorate and the prognosis was only fair.

116       Mr Miller noted that post shoulder surgery, there had been significant improvement, but that the plaintiff’s symptoms were likely to persist, and indeed, deteriorate in the longer term. He thought that the long term prognosis was only fair and that the plaintiff was at significant risk of long term deterioration.

117       In Mr Miller’s view, it was likely the plaintiff had pre-existing but asymptomatic rotator cuff disease, rendered symptomatic by the accident. He considered the plaintiff would have an ongoing requirement for further treatment with analgesics, anti-inflammatory agents and physiotherapy. He would require repeat arthroscopic debridement and he was at some risk of developing arthritic disease in the right shoulder. He thought the plaintiff may well require further right knee treatment.

118       In terms of capacity for work in relation to the right shoulder, Mr Miller remained of the view that the plaintiff’s right shoulder would preclude him from returning to significant physical work involving repetitive arm action and use of the arms in the ‘above shoulder’ position or lifting of weights of more than two kilograms. Given his understanding of the plaintiff’s age, education, work experience and shoulder disease, Mr Miller did not envisage a return to the workforce.

119       Mr Miller concluded that the shoulder injury was at the more severe end of the spectrum and was based on organic disease. In his view, there were no non- organic factors operating. He considered the right shoulder was indeed likely to deteriorate later in the plaintiff’s life.

120       Mr Miller was forwarded surveillance material. Having viewed that film, it did not cause him to alter his opinion. Having read the plaintiff’s third affidavit in which he referred to a previous shoulder injury in 1986, it remained Mr Miller’s view that the motor vehicle accident was the dominant factor in the plaintiff’s presentation in terms of his right shoulder.

121       The plaintiff attended Mr Brian Callender, physiotherapist, until funding was ceased in December 2009. At that stage, it was noted that the plaintiff still had ongoing pain and disability from the accident, but as he did not demonstrate ongoing improvement, the TAC were unwilling to continue paying for treatment. It was noted that the plaintiff wanted to continue treatment as it relieved his discomfort significantly.

122       Mr Brendan Dooley, orthopaedic surgeon, examined the plaintiff for medico- legal purposes on 26 February 2009.

123       On examination, the plaintiff had marked stiffness in his right shoulder. The acromioclavicular joint was normal. There was restriction of movement without evidence of impingement pain. Examination of the right shoulder revealed no evidence of instability and tests for impingement were negative.

124       Mr Dooley concluded the plaintiff had residual stiffness in his shoulder which may improve gradually in the future, but the probabilities were that he would have a permanent restriction of movement affecting his right shoulder. That, together with his other injuries, would preclude the plaintiff from returning to work. He thought it unlikely the plaintiff would require further surgery for his right shoulder condition.

125       Associate Professor Paoletti, psychiatrist, examined the plaintiff for medico- legal purposes on 29 April 2009. From a psychiatric point of view, he thought the plaintiff suffered from a chronic adjustment disorder with mixed anxiety and depressed mood based mainly on his reporting of symptoms.

Investigations

126       An x-ray of the plaintiff’s right shoulder was carried out on 17 March 2008 at Dr Burn’s request. The shoulder joint was normally enlocated and no humeral fracture was seen. There was some bony irregularity of the posterior glenoid which, it was thought, may represent a non-displaced fracture. It was noted if further evaluation were required, then CT scans could be performed.

127       Dr Nguyen arranged for an ultrasound of the plaintiff’s right shoulder on 15 May 2008. It showed a full thickness tear of the supraspinatus with retraction, as well as some bursal fluid. No impingement was identified.

The Defendant’s Medical Evidence

128       Dr Firestone, psychiatrist, examined the plaintiff for medico-legal purposes on 4 March 2010.

129       On examination, there was no abnormality of thought and the plaintiff did not show any anxiety. His affect may have been restricted. Cognition, although not formally tested, appeared very well for his age.

130       Dr Firestone did not consider the plaintiff to be suffering from any psychiatric illness in relation to the accident. He thought the plaintiff was downhearted in terms of losing his enjoyment of various activities.

131       Mr John O’Brien, orthopaedic surgeon, examined the plaintiff on 22 February 2010 and provided a supplementary report, having seen the video surveillance and Mr Dooley’s report.

132       The plaintiff complained to him of constant pain over the anterior, superior and posterior aspect of the right shoulder extending to the region of the shoulder blade. On examination, there was significant tenderness over the right surgery scar. There was limited movement accompanied by pain. Abduction and external rotation in particular were aggravated by active movements against resistance.

133       Mr O’Brien concluded current signs indicated restrictions of all movements of the right shoulder, suggesting the presence of capsulitis of the glenohumeral joint, but he thought that would appear to have followed surgery and remained unchanged despite extensive conservative treatment. He thought, given the ultrasound finding, there was a pre-existing shoulder pathology given the described muscle retraction associated with the supraspinatus tear.

134       In the absence of any symptoms in the right shoulder before the accident, Mr O’Brien thought that would suggest historically that accident had precipitated symptomatic pathology leading to the capsulitis. Mr O’Brien considered the plaintiff’s clinical condition was certainly stable and there was no indication for any further surgical procedure.

135       Mr O’Brien concluded the plaintiff was now moderately disabled by painful restriction of his right dominant shoulder. Even though he was not working at the time of the accident because of his lower limb injury, nevertheless, Mr O’Brien considered the current shoulder injury would certainly prevent the plaintiff from returning to heavy physical work. He regarded the plaintiff as totally and permanently incapacitated and had no doubt he would not return to any form of gainful employment due to his significant right shoulder pathology. He thought the plaintiff now remained permanently limited with his general domestic, social and recreational activities.

136       Mr O’Brien was then forwarded surveillance film and Mr Dooley’s report. Having viewed the video, he thought it suggested the movements of the right shoulder were much more free and less painful than on examination, but he still thought the plaintiff did not have normal function of his right shoulder and he would not be capable of returning to his pre-accident employment.

137       However, Mr O’Brien now thought the plaintiff was not totally and physically incapacitated as a result of his accident injuries and would be physically capable of modified duties not involving the use of his arm at or above shoulder level. However, considering the overall clinical situation, including the plaintiff’s age, from a practical perspective he thought the plaintiff would not be able to return to any form of gainful employment. He thought the interference with upper limb function on the video appeared to be mild.

Other Evidence Relied upon by the Defendant

138       A clinical note from the plaintiff’s physiotherapist dated 5 February 2007 set out -“Left knee worse than right”.

139       A Worker’s Compensation reimbursement invoice dated 14 February 2007 set out:

“The plaintiff on current medical certificates was able to work four hours a day, five days a week. As there were no current projects and no suitable duties the plaintiff hasn’t been able to return to work.”

140       In a “Current status of claim” dated 8 November 2007, it was noted:

“The worker was able to be internally rehabilitated … Nacap said they

would make the worker an offer to redeem his claim.”

141       The document detailed that the plaintiff was prepared to settle his claim for $15,000 which compromised the balance of his weekly net payments until he reached sixty five, together with an allowance for medical treatment.

142       An Occupational Therapy Home Needs Assessment Report was carried out by Susan Leonard Brown in March 2009.

143       The plaintiff stated at that time he was able to walk in the community for fifteen to twenty minutes to the local shopping centre. He was independent in personal care; however, he required assistance with domestic activities. He was independent driving and shopping. He privately paid for gardening services before the accident and was generally self-managing.

Overview

144       I accept that the plaintiff suffered injury to his right shoulder in the accident which has been diagnosed as an aggravation of a pre-existing but asymptomatic rotator cuff disease which has lead to capsulitis.

145       The injury was, as treating orthopaedic surgeon Mr Miller described, to the more severe end of the spectrum with a massive rotator cuff tear shown on surgery, involving almost the entire cuff.

146       It is, however, the accident related impairment not the injury which is the relevant consideration.

147       The statutory test requires a judgment based on an evaluation of the evidence.

148       The term “serious” requires the impairment and its consequences to be reviewed objectively and also judged on an external comparative basis against other possible impairments not necessarily in the same category: see Humphries v Poljak (ibid), at 170, accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441; see in particular Chernov JA, at para 29.

149       Whilst the plaintiff had a problem with his right shoulder many years ago following injury in 1986, this condition had resolved some time before the accident and was not giving him any problems at the said date. This situation was confirmed by his general practitioner, Dr Nguyen.

150       Therefore this is not an aggravation case of the type considered in Petkovski v Galletti [1994] 1 VR 436.

151       Although the plaintiff’s evidence was unclear in a number of respects, and at times inconsistent and confusing, I accept that he has had ongoing pain, discomfort, stiffness and restriction of movement in his right shoulder since the accident, which affects him on a daily basis.

152       The plaintiff is unable to elevate his arm above ninety degrees and is significantly impaired in activities requiring ‘over shoulder’ activity. He has constant pain over the anterior, superior and posterior aspect of the right shoulder extending to the region of the shoulder blade.

153       His shoulder pain affects his sleep to the point where he finds it more comfortable to sleep in an armchair so that he does not place weight on his right shoulder. His complaint to Mr Whelan in this regard resulted in Mr Whelan providing him with a bean bag upon which to rest his shoulder in bed.

154       There was no surveillance film shown or other evidence contradicting this claimed level of disability. No medical practitioners considered the plaintiff’s condition to be functional, or found him to exaggerating on examination.

155       Lay evidence in support of the plaintiff’s ongoing disabilities was not challenged.

156       Despite major shoulder surgery, only a reasonable repair has been achieved. The plaintiff continues to require treatment for pain relief in the form of Tramal and Panadeine Forte prescribed by Dr Nguyen. He takes this medication on a needs basis with his intake limited by his problems with oesophageal reflux. Physiotherapy treatment ceased in December 2009 when funding was cut off by the defendant.

157       Whilst neither Mr O’Brien nor Mr Dooley thought the plaintiff required further surgery, I prefer the view of the operating surgeon, Mr Miller, in this regard. He considered the plaintiff has an ongoing requirement for further treatment with analgesics, anti-inflammatory agents and physiotherapy. In his view, the plaintiff would require repeat arthroscopic debridement and he was at some risk of developing arthritic disease in the right shoulder.

158       The main thrust of the defendant’s submission was that, when one looked at the plaintiff’s condition before and after the accident, the accident related consequences were not serious as the plaintiff’s lifestyle was already quite limited by his leg injury for which he required assistance in the home and garden.

159       Reliance was placed largely on the occupational therapist’s report as to the plaintiff’s situation prior to the accident when he required assistance with gardening and cleaning, and his continued ability to do a number of domestic tasks thereafter. It was submitted that nothing much had really changed in his life since the accident. Reliance was placed on Ashley JA’s comments in Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260, at para 27, that consideration should be given to what is retained as well as what is lost when considering the seriousness of an impairment.

160       However, I am required to consider the consequences of the compensable injury, even if there are other conditions contributing to those consequences: See Dressing v Porter [2006] VSCA 215, per Ashley JA, at para 47:

“… If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences. … .”

161       Clearly, the plaintiff had a number of orthopaedic problems prior to the accident, being off work since late October 2006 as a result of a right lower limb injury. These problems were ongoing, as the plaintiff ultimately conceded, and continue to require pain relief medication as confirmed by Dr Nguyen.

162       Whilst having evidence of the plaintiff’s pre-accident level of disability, in particular, his requirement for assistance at home, I accept that the restrictions on his daily activities have considerably increased as a result of his shoulder injury. He now has an upper limb problem affecting his dominant arm, in addition to his leg problem, making his predicament much more difficult.

163       Because of the daily experience of pain and restriction of movement, housework, household maintenance and gardening tasks are obviously more difficult to perform and he has needed further assistance, as deposed to by Mr Whelan and Mr Monteleone, with tasks such as putting out the rubbish bins, hanging out the washing and doing the shopping, tasks which mainly involve the use of the dominant arm.

164       As a result of his shoulder pain and restriction, the plaintiff has suffered some anxiety, frustration and lack of motivation. I am also entitled to take into account these expected emotional consequences of the plaintiff’s shoulder injury when considering his impairment – Richards v Wylie (ibid), at paragraphs 16-17, per Winneke P.

165       As at the said date, the plaintiff had not been hunting or shooting since late 2006 because of his leg condition and I do not consider there to be any accident-related interference with these activities.

166       The plaintiff’s evidence as to whether or not he was retired at the accident date is somewhat unclear but it seems that was in fact the case. However, as this application was not brought on the basis of any pecuniary loss or disablement for employment, I am not required to consider that issue further.

167       I accept that the plaintiff’s shoulder condition is likely to deteriorate in the future, with the possible development of arthritis, and will require further treatment and surgery – a factor taken into account by the Court of Appeal in Stone v Jarvis [1992] 2 VR 129 in finding an impairment was serious.

168       The probabilities are that the plaintiff will have a permanent restriction of movement in the future affecting his right shoulder. I accept that the impairment is therefore long term.

169       I am satisfied that the plaintiff has a serious injury relating to his right shoulder which is long term.

170       Accordingly, I grant the plaintiff leave to bring proceedings for damages in relation to the accident.

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