Dowling v Scott's Transport Industries Pty Ltd
[2013] VCC 401
•15 April 2013 (revised 17 April 2013)
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT WANGARATTA
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-05978
| HERBERT DOWLING | Plaintiff |
| v | |
| SCOTT’S TRANSPORT INDUSTRIES PTY LTD | Defendant |
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JUDGE: | His Honour Judge Anderson | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 12 and 15 April 2013 | |
DATE OF JUDGMENT: | 15 April 2013 (revised 17 April 2013) | |
CASE MAY BE CITED AS: | Dowling v Scott’s Transport Industries Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 401 | |
REASONS FOR JUDGMENT
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Catchwords: Accident compensation – Serious injury – Left shoulder injury – Later “overuse” injury developed to the right shoulder – Whether injuries should be aggregated – Lu v. Mediterranean Shoes Pty Ltd [2000] VSCA 65 applied – Plaintiff now aged 71 – Relevance of shorter life expectancy – Hawkins v. DHL Express (Australia) Pty Ltd [2013] VSCA 26 applied – s. 134AB Accident Compensation Act 1985
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P.A. Jewell SC with Mr G. Pierorazio | Nevin Lenne & Gross |
| For the Defendant | Ms K.A. Galpin with Ms L.M. Glass | Wisewould Mahony |
HIS HONOUR:
1 Herbert Dowling injured his left shoulder in April 2009 when he was working as a truck driver. The plaintiff was then one day short of his 67th birthday. He was, however, "Keeping up with the younger blokes at work" and "would have kept going, if I had had my health". He was a fit, active man in his younger years. He had been a good sportsman, playing senior football for many years with the Wangaratta Magpies. He was a keen bike rider before the injury, and regularly collected firewood for his heater at home.
2 The plaintiff had surgery to his left shoulder in January 2010 and about three months later he returned to restricted work duties as a yardsman and truck jockey, but his employment was terminated in September 2010.
3 The plaintiff overused his right shoulder as a consequence of the injury to the left shoulder. In July 2011, an ultrasound of the right shoulder showed that the supraspinatus tendon was torn. Liability has been accepted for the injuries to his left and right shoulders for the purposes of impairment benefits under the Accident Compensation Act 1985.
4 There is limited dispute on the medical evidence that:
a. the plaintiff's left and right shoulders have persisting dysfunction;
b. the injuries have stabilised and there is little likelihood of any significant improvement;
c. as a consequence, the plaintiff is not suited for continued employment; and
d. the plaintiff's activities of daily living have been affected.
5 The plaintiff seeks leave pursuant to section 134AB of the Accident Compensation Act 1986 to issue a proceeding limited to pain and suffering damages. The issues for determination are:
a. whether the plaintiff's two shoulder injuries may be aggregated; and
b. whether the consequences to the plaintiff of the impairment to the body function of each shoulder satisfy the statutory test for "serious injury".
Employment and medical history
6 The plaintiff was not cross-examined. I should therefore accept the evidence in his affidavits, and in the histories he gave doctors, unless there is very good reason not to.
7 The plaintiff worked as a tanker driver delivering fuel to farms for about 43 years. Before that he spent 10 years as a blind maker and upholsterer. Prior to the injury in April 2009, the plaintiff said that repeatedly changing the gears of the Freightliner truck with a "cocked up" position, made his left shoulder "sore from time to time at the end of a days work". However, this did not stop him working or require specific treatment.
8 On 23 April 2009, the plaintiff was "filling an overhead fuel tank and lifting the hose to fill the tank". This was "heavy and awkward work" which required him "to stretch my arms and shoulders”. The plaintiff "felt something go in my left shoulder and a lot of pain".
9 The orthopaedic surgeon, Miss Prue Keith, has treated the plaintiff since soon after his injury. In June 2010, she arranged two ultrasound guided injections of Depo Medrol. The injections did not provide him any ongoing or long-term relief. In January 2010, Ms Keith performed a tenodesis supraspinatus repair and capsulotomy on the plaintiff's left shoulder. The plaintiff suffered from a biceps collapse as a result of the surgery. The plaintiff received massage and acupuncture from a physiotherapist although eventually this offered little assistance.
10 The plaintiff was left with a left shoulder which "continues to be painful, sore and stiff accompanied by a feeling of weakness" and "loss of movement". The bicep collapse means that the plaintiff has "considerably less strength in my left arm”. The right shoulder aches and there "is also weakness and reduction of movement on the right-hand side". Surgery was considered for the right shoulder but has not been pursued as the plaintiff believes the surgery to his left shoulder was not beneficial.
11 The plaintiff tries to "avoid the use of medication, but when required I will take Panadol to help deal with the pain”. An unrelated hiatus hernia is upset if he takes too much medication and he is apparently intolerant to anti-inflammatory medication.
Aggregation of impairment
12 The plaintiff injured both his shoulders in the course of his employment. The left shoulder became symptomatic in 2008, and the right shoulder some time later as a result of "overuse". Although it is not "permissible to aggregate two or more impairments for the purpose of determining if an injury was a 'serious' one, injuries may be relevantly aggregated for that purpose" (Lu v Mediterranean Shoes Pty Ltd [2000] VSCA 65 per Chernov JA at [22]).
13 Chernov JA referred to the majority judgment in Humphries v Poljak [1992] 2 VR.129 at [138], where Crockett and Southwell JJ said, ”It is impermissible in an attempt to ascertain if a 'serious long-term impairment' has been shown to exist to look to a number of 'impairments' not any one of which is a 'serious long-term impairment' and treat them as acting in total, as it were, so as to meet the requirements of the definition. A body function must be identified. That done, the enquiry to be made is whether the function has been impaired or lost. It may, of course, be impaired or lost by reason of two or more injuries acting together to cause such impairment or loss.”
14 In Lu v Mediterranean Shoes Pty Ltd, the Court of Appeal was concerned with a worker who, "in about July or August of 1995…began experiencing pain in the outer side of his right elbow and just above it". On 4 September 1995, the worker was struck by a hose "on top of the right shoulder in an area close to the neck". He stopped work on 15 September and submitted a claim which "refers only to his elbow injury and makes no mention of any injury to his right shoulder or neck". The worker participated in returns to work for short periods in August 1996 and March 1997. Later, the worker said that in addition to "pain on the outer side of his right elbow, radiating up into his upper arm and down into his forearm, [he] also has pain in his right shoulder and right side and centre of his neck".
15 The Court of Appeal in Lu rejected a submission that even if "each of the elbow and shoulder injury was not by itself a 'serious injury', in combination they produced such an injury, in that, together they caused a serious long-term impairment of a body function, namely, his right arm" (Lu v Mediterranean Shoes Pty Ltd [2000] VSCA 65 per Chernov JA at [10]).
16 At paragraph 26, Chernov JA said that, "Where leave is sought in respect of two or more workplace injuries, whether the applicant must establish that each is a 'serious injury' or whether they can be looked at together to see if, in combination, they satisfy the requirement of the definition, would depend on whether they all affect the one body function and on whether they arise out of the same relevant incident".
17 At paragraph 27, Chernov JA contrasted this position with the circumstances foreshadowed in Humphries v Poljak that ,"Where the injuries impair the one body function and have arisen out of one incident, they may be relevantly aggregated for the purpose of determining whether the impairment of that body function is serious and long-term".
18 The circumstances in which injuries may be aggregated has been a vexed issue for County Court judges in at least a dozen cases. One of those cases involved a finding that "the use of two hands may be regarded as a single body function [as] manual activity is interrelated [each hand depends upon the other hand]". In that case, a manual worker had injured both arms in the course of his employment. The Court of Appeal refused leave to appeal, stating that the finding of serious injury was "not attended with sufficient doubt to warrant the grant of leave" and that "the argument which has been addressed to the court would not clarify or add to the body of law which has already been established" (Lakic v GB Galvanising Service Pty Ltd per Winneke P and Chernov JA, quoted by Her Honour Judge Jenkins in Karovska v Parker Williams Pty Ltd [2008] VCC 1476).
19 In Ciccia v Gasgep Industries Pty Ltd [2006] VCC 182, I determined the application of a worker performing repetitive process work who developed pain in both wrists and hands. He later had carpal tunnel surgery to both wrists. I said, at paragraph 28,”The accepted practice, as revealed by a number of decisions in this Court, has been to approach the problem of bilateral injury as affecting the body function of manual dexterity of both upper arms when used together or, of the lower limbs, when performing the body function of ambulation. In my view, this is a common sense approach and accords with the reasoning of the Court of Appeal in Lu. This is particularly so in this case when one has regard to the repetitious nature of the work the plaintiff was performing and the fact that the medical evidence accepts that the bilateral carpal tunnel syndrome and the Complex Regional Pain Syndrome Type 1 arose from the performance of that work over a relatively short period”.
20 Although that decision perhaps overstated the position adopted by judges of this Court, I consider that it is consistent with the statement of principle by Chernov JA in Lu and his restatement of the majority judgment in Humphries v Poljak. It is likely, however, that the issue will rarely have much significance in the final decision reached in an application such as the present, involving a manual worker who is restricted in the performance of physical activities by both injuries.
21 In the present case, the medical opinions confirm the limitations the plaintiff has. In Whilst it might be said that the plaintiff's injuries "arise out of the same relevant incident", the plaintiff's right shoulder injury resulted from overuse of that shoulder some time following the injury and surgery to the left shoulder. In these circumstances, it may not be appropriate to aggregate the injuries. The critical issue for determination will be the extent of the plaintiff's impairment in relation to each shoulder.
Effect on the plaintiff's activities
22 The injury to the plaintiff's left shoulder, and separately to his right shoulder, has affected him in the following ways:
a. he had hoped to work at least to age 70 but would have kept going "if I had my health". He "enjoyed the job immensely" and, over many years, "I made a lot of friends";
b. he has difficulty sleeping on either his left or his right side;
c. he had been a keen golfer, playing 18 holes regularly about once a week. He now generally plays only nine holes much less frequently;
d. his bike riding is restricted now to short rides because the usual posture is difficult for him, and his arms "get weak" and he experiences "a dull and heavy feeling in the upper arms". Previously, he regularly rode distances of 60 to 70 kilometres;
e. the plaintiff tried ten-pin bowling at a social occasion. He struggled and afterwards his "arms were very painful and ached badly";
f. previously, the plaintiff collected his own firewood in the bush using a chainsaw and axe. Now he cannot collect wood. Until recently, WorkCover was paying for this to be done;
g. in the garden, the plaintiff finds lawn mowing, whipper snippering, tree trimming overhead, digging and shovelling difficult because of the reduced strength of his left arm;
h. when dressing, putting on a shirt or jumper may cause painful symptoms in his shoulder;
i. driving is difficult, particularly for prolonged periods;
j. household and domestic tasks including reaching overhead or carrying bags cause problems;
k. the plaintiff is no longer able to carry out all home maintenance tasks as he previously had, and must employ tradespeople to perform certain matters. These include finishing painting work and doing paving work;
l. the plaintiff had hoped in his retirement to restore furniture and had purchased an antique chair to do up. The upholstering "requires a fair amount of effort using both arms" which is now beyond the plaintiff;
m. tasks involving ladder climbing and reaching overhead are difficult. For example, putting up "Christmas decorations at the front of our house" and climbing on to the roof "to maintain the air conditioning unit";
n. the plaintiff is restricted in performing domestic activities such as sweeping, mopping and bathroom cleaning.
Conclusions
23 The plaintiff is almost 71 years old. This has some, although limited, relevance when considering the consequences of the plaintiff's impairments. As the Court of Appeal said in Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26,”While a worker's youth may be relevant as indicative of how long he or she will have to endure the consequences of injury, it is not permissible to treat the shorter life expectancy of a worker of advanced age as a simple yardstick relevantly supporting the proposition that the consequences of an injury suffered are less than serious. The relevance of the duration of the consequences of an injury should be confined to the question of whether the consequences are likely to endure for a worker for the foreseeable future.”
24 To this plaintiff, the loss of capacity to carry out the activities I have previously discussed has had a dramatic effect on all aspects of his life. His employment was terminated because he could no longer perform heavy cartage work and was restricted to light yard and jockey duties. The plaintiff's recreational and social pursuits, as well as the household and outdoor tasks, are significantly curtailed. These were matters in respect of which he derived satisfaction and enjoyment.
25 The plaintiff is in constant pain. Common actions aggravate the pain. He was used to being a very fit and active person. He tries to cope without medication. There is nothing further the health professionals can do for him. All aspects of the plaintiff's life have been affected by his injuries. He was doing heavy work for many years but coped well, except for the "heavy and awkward task" of manoeuvring the tanker hose in to position to fill overhead fuel tanks which caused his current problems.
26 I consider that the consequences to the plaintiff of the impairments he has suffered to the body functions of his left and right shoulders, when each is considered separately as I have done in this case, would fairly be described as "very considerable".
Order
27 The plaintiff will have leave to bring a proceeding limited to claiming pain and suffering damages arising from the repetitive and heavy duties the plaintiff alleges he was required to perform in the course of his employment with the defendant prior to 23 April 2009.
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Certificate
I certify that these 7 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 15 April 2013 and revised on 17 April 2013.
Dated: 17 April 2013
Philippa Gilkes
Associate to His Honour Judge Anderson
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