Dobson v Leewright Pty Ltd
[2017] VCC 1439
•11 October 2017
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY LAW COURTS COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-01623
| KARL ADRIAN DOBSON | Plaintiff |
| v | |
| LEEWRIGHT PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Latrobe Valley Law Courts | |
DATE OF HEARING: | 26 September 2017 | |
DATE OF JUDGMENT: | 11 October 2017 | |
CASE MAY BE CITED AS: | Dobson v Leewright Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1439 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the left arm including the shoulder – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(37)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242
Judgment:Leave granted to the plaintiff to bring proceedings at common law to recover damages for pain and suffering as a result of the injury to his left upper limb suffered on or around 8 February 2013 while at work with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer with Mr G Wicks | Slater & Gordon Ltd |
| For the Defendant | Mr P Elliot QC with Mr A Saunders | Minter Ellison |
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 or about 8 February 2013 .
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” is defined as meaning:
“(a)permanent serious impairment or loss of a body function.”
5 The loss of body function relied upon in this application is the left upper limb including the left shoulder.
6 The plaintiff relied upon two affidavits sworn by him on 28 November 2016 and 26 September 2017. The plaintiff was cross-examined. I have not summarised the affidavits and evidence of the plaintiff; however, I will refer to the relevant evidence of the plaintiff in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all of the tendered material.
Relevant legal principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]Section 134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a) “the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant;[2]
[2]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) “the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c) “the consequences” to the plaintiff of his impairment to the left upper limb including the shoulder in relation to “pain and suffering” must be “serious”; that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[4]
[3]Barwon Spinners (supra) at paragraph [33]
[4]Section 134AB(38)(b) and (c)
9 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
10 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[5]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[6]
[5][2009] VSCA 181
[6](supra) at paragraph [42]
11 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[7]
[7]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [44]
12 The test for “serious”, as set out in paragraphs (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
13 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard;[8] and
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[9]
[8]Section 134AB(38)(j) of the Act
[9] See Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The Issue
14 Counsel for the defendant informed the Court that this is a “range case”; namely, that the consequences of the plaintiff’s work 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.
The Plaintiff’s credit
15 There was no real challenge to the plaintiff’s credit by counsel for the defendant. From my observation of the plaintiff in Court, he was a man of few words. He responded to all questions put to him in a clear and forthright manner. He did not volunteer information. In fact, the plaintiff presented as a hardworking man who was keen to return to work. In his words, he put up with the pain at work following the injury because “I’ve got to feed my family”.[10]
[10]Transcript (“T”) 42, L3
16 Dr Elder said the plaintiff presented in a genuine fashion and cooperated fully and gave his full effort. He was described by Mr Dooley as a sensible and genuine historian. The plaintiff provided medical witnesses with a consistent history of his complaints. In Court, the plaintiff was not prone to exaggeration and gave his evidence in a most uncomplaining way.
17 Based on the plaintiff’s presentation in the witness box and opinions of medical witnesses, I formed the view the plaintiff was a credible witness.
Analysis of the Plaintiff’s work injury
18 It was not in dispute that the plaintiff suffered a compensable injury at work. The injury occurred on or about 8 February 2013 in the course of his employment with the defendant.[11]
[11]Plaintiff’s Court Book (“PCB”) 6
19 The current medical evidence was described by Mr O’Brien and Mr Dooley, orthopaedic surgeons. The plaintiff described a foreign body entering the anterior left upper chest just inferior to the left shoulder, the foreign body subsequently being found surgically, literally in front of the plate of the scapula. Since that time, the plaintiff has reported pain and stiffness, particularly in relation to flexion and abduction of the left non-dominant arm.
20 Mr O’Brien said there is now quite marked restriction of flexion, abduction, and also external rotation. Even though there was no specific reported involvement of the shoulder joint, he thought the resultant restricted movement suggested significant soft-tissue scarring, perhaps involving the inferior and anterior aspect of the glenohumeral capsule, which would explain the selective loss of shoulder movement.
21 Mr Dooley reported that the foreign body broke through the front harvester glass and penetrated anteriorly the upper left chest region. In association with this, there will have been damage to the surrounding soft tissues which most likely will lead to some scarring that has led to restriction of range of motion of the left shoulder and a feeling of stiffness around the neck.
22 Both witnesses accepted the condition was stable. Given it is four years since the work injury occurred, Mr Dooley said the plaintiff would be unlikely to regain any further range of motion.
23 Mr O’Brien did not believe that there would be any symptomatic improvement, and described the plaintiff’s prognosis as poor. He said the plaintiff’s restricted movement and chronic pain affects his physical activity and limits the use of the left arm above shoulder level. He concluded the plaintiff would not be capable of unrestricted manual duties, and will require modification of duties to continue in full-time employment. Mr O’Brien said he would not be capable of regularly undertaking any form of physical activity at or above shoulder level, and that his general social, domestic and recreational activities will be limited, and this will be a permanent situation.
24 Mr Dooley said the plaintiff will have functional restrictions in relation to activity at or above shoulder level. He said the plaintiff will note difficulty with a lot of physical activity and activity at and above left shoulder level. He is fit to continue in his current employment. He will continue to note intermittent left shoulder girdle pain. The plaintiff will not regain further range of abduction and forward flexion of his left shoulder.
25 Based on the medical evidence, I accept the plaintiff’s current condition is as a result of the work injury.
26 It is therefore necessary for me now to consider the evidence as to the consequences to the plaintiff of the work injury and determine whether the consequences are more significant or marked and at least very considerable when compared to other cases in the range.
Work
27 It was not in dispute that, prior to his work injury, the plaintiff has always engaged in physical work. He completed Year 10 at Sale Catholic College. After leaving school, he worked with the SEC, partially completing an apprenticeship as a fitter and turner. He qualified as an Aircraft Technician Grade 1 when a member of the Australian Army for four years. He also worked as a storeman and spray painter.[12]
[12]PCB 12
28 In January 2010, the plaintiff commenced working with the defendant, driving a log truck at a timber plantation at Stockdale near Stratford. In October 2012, he became a machine operator working a harvester where he cut down trees. He was performing this work at the time of the accident.
29 Initially, the plaintiff returned to work in March 2013 on modified duties. He sought a clearance to return to work because he was “under the pump” from his employer to get back to full-time production.[13] In April 2013, he was cleared to return to pre-injury work. On occasions he worked as a forwarder, operating a machine in the plantation which cut the trees and collected the logs. He then returned to the harvesting work until November 2013, when he resigned. He ceased work with the defendant because he found the work was very difficult. The plant he operated had to travel over very rough ground including tree stumps and broken timber. The plant bounced around relentlessly, which aggravated the pain and increased the stiffness.
[13]T40, L11-12
30 The plaintiff’s evidence was that he could be required to work anywhere up to 120 kilometres from home, travelling one-and-a-half hours to work and returning home at night. He worked in blue gum and pine plantations. He was required to work on rough ground and the machine he was operating would bounce around, usually off the logs. The plaintiff said this jarring would cause him continual pain.[14] He put up with it because he has to feed his family.[15] At that time, he was taking medication of Panadeine Forte and Panadol Osteo.
[14]T40, L13-19
[15]T40, L24
31 On occasions, the plaintiff drove an excavator, which had no suspension or moving parts. It basically had a hard platform so if the excavator slipped off a tree stump there was a big thud onto the ground and the machine caused jarring through his body. He put up with the pain and discomfort for a while. He said he no longer felt comfortable driving alone in the bush. He was not comfortable sitting in the machine and putting his body through so much discomfort. As a result, he resigned.
32 The plaintiff obtained work in Western Australia with McAleese Resources as an operator/road traffic driver at mining sites at Port Hedland in Western Australia. He works on a fly-in/fly-out basis: four weeks on and two weeks off.
33 Initially, he was driving trucks for long distances and long hours on made roads, which caused him difficulty as he had to repeatedly change gears. He put up with the pain for a while. He actively sought other work within the company. He obtained employment driving a front-end loader. However, the work was similar to the work he was performing with the defendant, in that it involved bouncing around, which caused pain and discomfort. He explained that he would have 10 tonnes in the front, which results in the machine rocking backwards and forwards and bouncing about, causing pain. He put up with the pain for a while, then he sought other work and obtained work driving an excavator which was on tracks with a clamshell bucket on the front. He said operating the excavator was better, as the excavator was stationary: “you just slew from left to right”. He said that, when driving the excavator, he was pretty much in charge of his own destiny. By that, he meant, if he was smooth on the controls, the ride was pretty good. However, he had problems with the excavator with the repetitive movement of the controls, which would affect his left shoulder and arm.
34 The plaintiff now works as a supervisor organising road transports from the mine to the port. This work is a little easier on his body. The work is mainly office based. He uses a computer and it has the advantage that he is not required on a repetitive basis to climb in and out of the driver’s cabin or up onto trailers, which caused worse pain in his left shoulder. However, there is one component of the work that he performs daily at the mine site, which is the clearing and cleaning of the weighbridge of spillages and debris that has fallen from the trailers of road trains. This work involves repetitive physical movement of both arms using shovels, brooms and hoses to clear the spillage and the debris. These tasks take up to about two hours each day to complete. The sweeping movements aggravate his symptoms. His left arm and shoulder ache and become progressively more painful. When he reaches a level of pain that is too uncomfortable, he stops to recover.
35 The plaintiff’s evidence was that these tasks are particularly difficult, because they cause his left shoulder and arm to ache and become progressively more painful. As the pain in the left shoulder joint increases, the movement of his left shoulder and arm is more restricted, and the pain becomes much worse. At the end of the day, his left shoulder is very sore and often very painful. The plaintiff’s evidence was that because the work at the mine is continuous over a four-week period and involves up to 12‑hour shifts each day, the physical demands of the workplace cause havoc with his left shoulder and arm. The work causes his left shoulder and arm to become very painful, and movements very restricted.
36 The medical evidence is that the plaintiff is not capable of unrestricted manual duties. Mr O’Brien said he will require some modification of duties to continue in full-time employment. He is not capable of regularly undertaking any form of physical activity at or above shoulder height. Mr Dooley accepted that the plaintiff would have difficulty with a lot of physical activity and activity at or above left shoulder height. He said the plaintiff is fit to continue in his current employment.
37 Whilst I accept the plaintiff is currently working and earning more than he earned with the defendant, his current work is in Western Australia. He is required to travel to and from Western Australia and work four weeks on and two weeks off, working 12-hour shifts. The type of work he is performing is now largely supervisory; however, there are still physical tasks that he is required to perform which cause the plaintiff pain. As the pain in the left shoulder joint increases, the movement of the left shoulder and arm is restricted.
38 I accept that the plaintiff has lost the capacity to undertake unrestricted physical work and is now limited to lighter duties with restrictions. I accept that the plaintiff’s capacity to find work is affected. Whilst I accept that the plaintiff uses a computer with his current work, there was no evidence of the nature and extent of the computer work he performs. These are consequences I can take into account, which are at the higher end of the scale.
Restrictions
39 The plaintiff’s evidence is that he cannot use his left shoulder and arm in a free and unrestricted way. Movements of his left shoulder and arm are restricted. Many physical tasks and activities involving the movement and the use of his left shoulder and arm are difficult for him. The plaintiff’s evidence is that tasks or activities involving the use of his left arm and shoulder, particularly repetitive, forceful activities or those involving arduous, demanding physical effort, are difficult and cause flare-ups of acute pain in his left shoulder. Movement of his left arm and shoulder is restricted, especially at or above shoulder height. Attempting to complete tasks involving movement of the left arm at or above shoulder height is difficult and frequently causes acute pain.
40 As a result, tasks or activities which require the plaintiff to lift moderate/heavy weights above shoulder or head height, or which require him to reach up above shoulder or head height, are difficult and painful. Simple activities, for example climbing up into and down from the driver’s cabin of large trucks, or up onto trailers and other plant and equipment, is difficult.
41 Further, tasks performed below shoulder height also cause difficulty. Tasks or activities involving sustained repetitive or forceful movements of both arms and shoulders place strain on his left shoulder joint and cause it to ache, becoming increasingly painful. The plaintiff said that as the pain in his left shoulder joint increases, the movement of his left shoulder and arm is more restricted, and the pain becomes much worse. As a result, he will be left with functional restrictions in relation to activities at and above shoulder level.
42 The medical evidence supports the plaintiff’s complaints. Mr O’Brien said that he is now quite restricted in flexion, abduction and also external rotation. He asserted that restricted movement and chronic pain affects the plaintiff’s ability to engage in physical activity, and limits the use of his arm above shoulder level. Mr Dooley accepted that the plaintiff had restriction in range of motion in relation to abduction and forward flexion of the left shoulder. He said he did not expect him to regain any further range of motion.
43 I accept that this is a consequence which I can take into account and is at the higher end of the scale.
Pain
44 The plaintiff’s evidence is that he continues to suffer constant background aching, aching in the front of his left shoulder, which travels up the shoulder towards his neck and down into his pectoral muscle. This varies in intensity, usually dependent upon activities involving the use of his left arm. Even moderate activities involving his left arm such as sweeping, carrying groceries, or lifting a basket of wet washing, cause an increase in pain. His main restriction with his left hand is with lifting. He suffers stiffness in his left shoulder, and the range of movement is reduced, as is his strength.
45 The plaintiff reported to Mr O’Brien that he has constant pain to the anterior aspect of the left shoulder, extending to the pectoral region below the shoulder joint. He reported that the severity of pain was 6 to 7 out of 10 on the visual analogue scale. He said the pain was aggravated by using the left arm, such as in carrying, lifting, or activities such as sweeping. The plaintiff reported to Mr Dooley he notes ongoing intermittent pain in the region of his left shoulder. Mr Dooley said that the plaintiff will continue to note some intermittent left shoulder girdle pain.
46 I accept the plaintiff has constant ongoing left shoulder pain which varies in intensity. He was consistent in reporting the level of pain he suffers to both of the medical witnesses. I accept that the experience of pain for the plaintiff over a period of four years is a substantial consequence, which I can take into account.
Treatment
47 The plaintiff’s evidence is that he is not permitted to take the powerful medications that could better ease his discomfort and pain due to the nature of his current employment. He relies on Panadol Osteo, and when he is working, he takes six to eight a day. The plaintiff also takes Nurofen when the pain is aggravated: three to six, approximately three days a week, when he is working. When he is at home, he takes less medication: approximately three Panadol Osteo a day, and Nurofen, three to six tablets, approximately once a week. The plaintiff reported using heat packs.
48 The plaintiff reported his use of medication to the medical witnesses. Mr O’Brien said that continuing analgesic medication will be required to control ongoing chronic shoulder pain. Further, that the plaintiff’s prognosis is poor and he does not believe that there will be any symptomatic improvement. Mr Dooley agreed with Mr O’Brien that surgical intervention would not assist the plaintiff, and that he will continue to note intermittent left shoulder girdle pain. Both doctors accepted the plaintiff would suffer pain and discomfort. Both medical witnesses accepted his treatment should be conservative. No doctor suggested his treatment was inappropriate.
49 I accept the level of treatment the plaintiff has is appropriate and is in the middle of the scale. This is a consequence which I can take into account.
Recreational activities
50 The plaintiff’s evidence is that, at the time of the work injury and for many previous years, he enjoyed riding motorcycles. Following the incident, he tried to ride motorcycles on open roads and on dirt tracks, perhaps on five or six occasions. He found this difficult. He was unable to ride a motorcycle without causing acute flare-ups of soreness and pain in his left shoulder, which he struggles to tolerate. He no longer rides a motorcycle, which in the past was both fun and a means of transport.
51 In his second affidavit, the plaintiff deposed that he attempted to ride his off-road dirt bike on occasion, which was not enjoyable. The machine jarred too much and caused an increase in pain. This is a big regret, as he had been riding bikes since he was very young. He told the Court that he had owned bikes since he purchased his first bike when he was in Grade 4. It is something he has always done, and he now makes excuses when his mates suggest he go for a ride. He tells them he has “got stuff on”.[16] He said that it “doesn’t make you feel real good”.[17]
[16]T47, L16
[17]T47, L18
52 At the time of the accident, the plaintiff told the Court that he was building a large steel storage shed at home. He has continued to construct the shed but has yet to complete it. He has been slow and restricted in his ability to complete the many tasks involved in the shed because of the persistent and fluctuating problems he has with his left shoulder and arm. The plaintiff’s evidence was that if he was not injured, he would have got stuck into the project and would have completed the shed in about three or four months. The plaintiff’s evidence was that recently, he has been advised that his building permit is about to expire again, for the third time, and he needs to renew it if he wishes to continue the build.
53 The plaintiff’s evidence in his first affidavit was that he enjoyed outdoor activities such as fishing, shooting and camping. His evidence was he can do most things, as he is right-handed, but activities involving lifting and carrying moderate/heavy weights with both hands and arms, which require strong, sustained or repetitive actions and movements with his left shoulder and arm, are very difficult for him. In February 2017, he reported to Mr Dooley that he used to go fishing and shooting but cannot engage in these activities now. He now has someone mow the lawns for him. This evidence was not included in his second affidavit. I accept that what he told Mr Dooley is the current position and the failure to include it in the second affidavit was an oversight of his legal team.
54 The medical evidence is that the plaintiff would note difficulty with a lot of physical activity, and activity at or above shoulder level. I accept that these are consequences I can take into account.
55 The plaintiff’s evidence was that the most significant recreational activity affected by his injury is his inability to play sport with his two sons, who are aged fourteen and eleven, in the manner that he did prior to his injury. His boys are very sports-minded and he feels very deeply the loss of not being able to engage in physical activity with them, particularly football, cricket and basketball. The plaintiff’s evidence was that he was not much of a sportsman, but his boys are good at sport. He watches them and he has great pride in their success. He feels as though he has let them down as a Dad, as he can only participate in a limited capacity.
56 The plaintiff said when they are playing cricket, he can throw a ball but he cannot bat. He cannot bowl. When playing football, he can kick a football but he cannot mark one. He cannot throw the basketball, because it is a two-handed game. He cannot catch the ball. He said he cannot go and play properly with the children: “I can stand there and chuck the ball occasionally. … That’s about it.”[18] He conveyed to the Court the extent of his loss. In cross-examination, the plaintiff agreed that he sometimes goes on holidays with his family to Queensland.[19]
[18]T24, L28-30
[19]T25, L6
57 I accept that the plaintiff’s recreational activities have been affected. I accept that this is a consequence which is at the higher end of the scale and which I can take into account.
Sleeping
58 The plaintiff reported to medical witnesses that he has difficulty sleeping at times because of the pain. The plaintiff reported to Mr O’Brien that he found that lying on the left shoulder significantly aggravated the shoulder pain, and as a consequence, his sleep was significantly disturbed. The plaintiff conceded that he did not take medication for sleep. I accept that this is a consequence which I can take into account.
Stoicism
59 Mr Dooley said the plaintiff presented “as a sensible and genuine historian”. In Court, the plaintiff was not prone to exaggeration, and he gave his evidence in a most uncomplaining way. He was a man of few words. I took the view that he was prepared to endure a fair amount of pain as he went about his work and everyday activities.
60 Counsel for the defendant submitted that this was not a case where the plaintiff was particularly stoic. Instead, he was a man who lives a normal life with hardly any treatment and some pain in certain activities.[20]
[20]T66, L2-4
61 Based on my impression on the way he presented in the witness box and the comments by Mr Dooley, I accept the plaintiff is stoical. I accept the injury suffered by a stoical plaintiff is not to be viewed any less seriously merely because he managed to remain more active than might have been expected given the level of pain.
The Plaintiff’s age
62 I accept that all the above consequences are especially significant given the plaintiff’s relatively young age, which is forty-three years old.
63 In Stijepic v One Force Group Aust Pty Ltd,[21] the Court said:
“When judging the pain and suffering consequences for the appellant by comparison with other cases, we consider that it is relevant to look at the likely period for which those consequences will be experienced. All things being equal, impairment consequences which a man (or woman) will have to put up with for 40 years might well be judged more serious than the same consequences which a man (or woman) may have to put up with for a much shorter period of time.”
[21](Supra) at paragraph [43]
64 I was referred to the medical opinions of Mr O’Brien and Mr Dooley regarding the prospects for deterioration in the plaintiff’s left upper limb condition. Mr O’Brien said that:
“Given the chronic nature of this patient’s symptoms and signs, I would consider the prognosis as poor and I do not believe that there will be any symptomatic improvement.”[22]
[22]PCB 31
65 Mr Dooley said:
“I believe that Mr Dobson will continue to have some intermittent left shoulder girdle pain. I do not believe that he will regain further range of abduction and forward flexion of his left shoulder.”[23]
[23]Defendant’s Court Book 7
66 I accept the plaintiff’s evidence about the impact of the upper left limb and shoulder on his capacity to participate in the recreational activities that he enjoyed prior to the work injury and unrestricted physical employment. I consider it is a very considerable loss for a man aged forty-three years to be now effectively precluded from the physical activities that provided him with so much pleasure and unrestricted employment into the future. Of itself, for a young, active man, this is a very considerable consequence.
Conclusion
67 In assessing the consequences, I am guided by the principle that the significance of what has been lost may be informed, to an extent by what has been retained.
68 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 situation and gets on with it. I accept that he has continued working but has had to modify his work activities to accommodate the constant pain.
69 The plaintiff is no longer able to engage in normal unrestricted physical work. He returned to his employment following his injury but the work caused him constant pain. Currently, he is employed with McAleese Resources as an operator/road train driver at a mining site at Port Hedland, Western Australia. He works at the site on a fly-in/fly-out basis, four weeks on, two weeks off. He works 12‑hour days. He is now working as a supervisor but there are some duties which cause him some difficulty. I accept that he works with a computer but that there was no evidence as to the nature and extent of his computer use.
70 I am satisfied that the plaintiff was involved in a work accident which, to the plaintiff, resulted in him experiencing symptoms of a physical nature. The consequences of his left upper limb, including the left shoulder, have impacted upon his life as he knew it before the accident. Since the injury, he has suffered for four years, and the medical evidence is guarded as to the future. I accept that the plaintiff’s injury is permanent.
71 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 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.
72 I accept that the left upper limb, including the shoulder, has consequences to the plaintiff that, when judged by comparison with other cases in the range of possible impairments, may fairly be described at the date of hearing as “at least very considerable” and certainly “more than significant or marked”.
73 Accordingly, I propose to grant leave to the plaintiff to bring proceedings at common law to recover damages for pain and suffering as a result of the injury to his left upper limb suffered on or around 8 February 2013 while at work with the defendant.
74 I will now hear the parties on costs.
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