Fahey v VWA
[2024] VCC 2029
•19 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-02652
| STEPHEN FAHEY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TSIKARIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 November 2024 | |
DATE OF JUDGMENT: | 19 December 2024 | |
CASE MAY BE CITED AS: | FAHEY v VWA | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2029 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages - serious injury – injury to the right shoulder – pain and suffering – credibility
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic),
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Jarvie v Sideliner Contracting [2024] VSCA 144 [69]; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Peak Engineering & Anor [2014] VSCA 67 [38]; Kesper v VWA [2024] VSCA 237; Sumbul v Melbourne All Toyota Wreckers Pty Ltd [2006] VSCA 292
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Moulds KC with Ms S Bailey | Arnold Thomas & Becker |
| For the Defendant | Ms V Katotas | Wisewould Mahony |
HER HONOUR:
Introduction
1This is an application for leave to bring common law proceedings pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injuries suffered by the plaintiff at work on or about 25 February 2022 (“the said date”) during the course of his employment.
2The plaintiff seeks leave to commence proceedings for pain and suffering damages only.
3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning:
(a) “permanent serious impairment or loss of a body function”
4The body function relied upon in this case is the right shoulder.
5The relevant legal principles are well known and are not in dispute.
6The impairment of the body function must be permanent.
7The plaintiff bears the overall burden of proof upon the balance of probabilities.
8By s325(1)(c) of the Act, the plaintiff’s right shoulder impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
9Section 325(2)(h) requires all psychological consequences to be ignored in determining the plaintiff’s application in relation to the physical impairment.
10I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11In reaching my conclusions, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Haden Engineering Pty Ltd v McKinnon.[2]
[1] (2005) 14 VR 622
[2] (2010) 31 VR 1
12The plaintiff relied on two affidavits, affirmed 14 December 2023 and 12 November 2024, and an affidavit affirmed 19 November 2024 by the plaintiff’s partner, Trish Rhonda Cap. In addition, both parties relied on medical reports and other material which was tendered in evidence.
13At the hearing, the plaintiff gave evidence and was cross-examined.
14I have read all the tendered material and I will refer to the relevant evidence to the extent necessary in these reasons.
Issues
15The defendant conceded that the plaintiff suffered a compensable injury on 25 February 2019.[3]
[3]Trancript (‘T’) 12 Line (‘L’) 30
16The issue for determination is whether the plaintiff’s pain and suffering consequences meet the “very considerable” threshold required by the legislation.
Background and medical history
17The plaintiff was born in July 1969 and is currently 55 years of age. He left school during Year 12 and mainly worked in ‘hands on’ labouring type jobs in warehouses and some security and bar work when he was younger.
18The plaintiff commenced work as a machine operator with Ego Pharmaceuticals Pty Ltd (‘the employer”) in around February 2009. The plaintiff deposed that the work of a machine operator was heavy and repetitive, involving the production of various skin care products on a large scale.
19On or about 25 February 2022, the plaintiff was working night shift manufacturing a cream. Powder from the product made up on the previous shift was left on the floor and whilst the plaintiff was cleaning the floor with water, it combined with the product to create a jelly like substance. He slipped on the substance and fell onto the concrete floor on his back and right side resulting in a fractured right scapula.[4]
[4]Affidavit of Stephen Fahey affirmed on 14 December 2023, Plaintiff’s Court Book (‘PCB’) 5-6
20The plaintiff reported immediate severe pain in his right upper back and sought assistance. He was taken by ambulance to Monash Medical Centre where X-Rays were performed and he was given analgesia.
21The plaintiff was unfit for any work for a few months whilst his injury healed. He returned to work on light duties on or about 9 May 2022, supervising staff and doing some office work on the computer.[5]
[5]Affidavit of Mandeep Singh sworn on 23 October 2023, Defendant’s Court Book (‘DCB’) 3
22The plaintiff currently is employed in a capacity which accommodates for his restrictions. He utilises lifting machines to assist with the work, however, deposes that when work is busy his pain levels increase to the point of needing analgesia.
23In February 2024, the plaintiff was promoted to dispensary team leader.[6]
[6]T 14 L 18
Treating medical practitioners
Dr Leonid Gankin, General Practitioner
24Dr Gankin, the plaintiff’s general practitioner, first examined the plaintiff following his injury on 1 March 2022.
25Dr Gankin diagnosed a fractured right scapula and noted the prognosis was guarded. He was of the opinion that the plaintiff’s injury had stabilised and that his injuries were likely to be permanent. The injury had affected the plaintiff’s ability to perform his normal occupation and to carry out social, recreational and domestic activities. It had affected his ability to perform any occupation within the scope of his knowledge, skill set and training.[7]
[7]PCB 25-26
26Dr Gankin provided the plaintiff with certificates of capacity with restrictions on lifting and repetitive tasks.[8]
[8] Ibid 29
27He last treated the plaintiff for the injury in about April 2024.
Mr Theo Patsarlis, orthopaedic surgeon
28The plaintiff saw Mr Patsarlis on 20 September 2022 and noted that the shoulder was treated non operatively, which was appropriate. On examination he noted that the plaintiff did not have full movement of the shoulder, although he did have a functional range of motion. The CT scan revealed a fracture through the inferior aspect of the body of the scapular and there was some displacement with an angulated fragment most likely causing him “all the problems”.
29In his opinion there was no easy solution, and he hoped that with time the pain would settle down. He anticipated that the plaintiff may not regain full movement of the shoulder although he would still have a perfectly functional shoulder even with reduced movement. The main issue was for the pain to resolve. He referred the plaintiff to his surgical colleagues to consider surgical intervention.[9]
[9]Ibid 27
Mr Thomas Treseder, orthopaedic surgeon
30Mr Treseder first reviewed the plaintiff on 9 November 2022 on referral from Dr Leonard Gankin. Mr Treseder commented on the CT scan performed on 7 July 2022 which showed a united scapular body fracture with displacement of the insertion of teres minor. He stated that the displacement resulted in a spike of bone distally, there was not a significant ventral displacement, and the displacement was in the order of 2 cm.
31On examination, Mr Treseder observed that there was mild restriction in the active range of motion of the plaintiff’s shoulder, a subtle weakness of his external rotation power, that his suprascapular nerve function appeared intact and that there was a tenderness to palpation of the spike of bone distally into the lapped dorsi muscle.
32Mr Treseder was of the opinion that a possible treatment was an osteotomy of a scapular malunion which would produce a reasonable result but was not “curative”, however he did not recommend this surgery for the plaintiff due to the complexity of such a procedure and the relatively mild adverse symptoms the plaintiff was experiencing at the time. The position could be reviewed if the plaintiff’s situation changed.[10]
[10]PCB 24
The plaintiff’s medico-legal reports
Dr Philip Sheard, orthopaedic surgeon
33Dr Sheard examined the plaintiff on 19 August 2024 for medico-legal purposes. The plaintiff reported right-sided posterior shoulder pain, which was present all the time, but mild in nature and worse with use. Dr Sheard observed a good range of movement, and the plaintiff reported being able to work above the head, however found his arm fatigued easily.[11] He identified permanent restrictions on his capacity, including no lifting or repetitive tasks with his right arm and working above his head
[11]Ibid 21
34On examination, Dr Sheard did not find any muscle atrophy but some asymmetry. He was of the opinion that the plaintiff’s impairment could be considered stable and permanent.[12] He did not foresee the requirement for any surgical intervention in the foreseeable future.[13]
[12]PCB 22
[13]Ibid 23
Medical Panel opinion
35The plaintiff relied on the opinion of a Medical Panel which provided a Certificate of Opinion on 23 October 2023, in relation to the plaintiff’s assessment of whole person impairment.
36When examined by the Panel, the plaintiff reported regular pain between the shoulder blades, which interfered with him lying on his right side and his sleep. He reported that he had regained good right shoulder movement but with some limitation and pain with forceful activity. The Panel inspected the shoulder and upper back which revealed mild wasting of the shoulder girdle musculature, particularly involving the trapezius, supraspinatus and infraspinatus muscles. There was mild tenderness to palpation over the upper border of the right trapezius muscle and the lower right scapular region.
37The Panel was satisfied that the muscle wasting evident was consistent with the impaired shoulder girdle muscular function. The range of motion testing was performed with several repeated measurements and the Panel was satisfied with the consistency of the restricted range of motion measured. The movements were mildly restricted, particularly flexion and abduction and to a lesser degree adduction and internal rotation. The Panel was satisfied that the plaintiff was using his maximum effort with his shoulder movement.
38The Panel also reviewed the medical imaging and diagnosed that he was suffering from right shoulder dysfunction and right scapular muscular dysfunction following a traumatic right scapular fracture and a soft tissue injury to the right shoulder.[14]
[14]Ibid 40
The defendant’s medico-legal reports
Dr Ash Chehata, orthopaedic surgeon
39The plaintiff was examined by Dr Chehata who prepared a report dated 30 April 2024 and a supplementary report on 21 October 2024. He noted that the plaintiff had a lifting capacity of approximately 25 kg and the plaintiff did not do a lot of the above shoulder height machine work. The plaintiff had been excluded from operating two of the machines at work which required above shoulder activity. He noted the plaintiff took Brufen and his usage varied between one to five times a week. He reported “intermittent constant pain in the shoulder blade or trapezius musculature”. The plaintiff had stopped all formal treatment and he saw a physiotherapist for hands on remedial massage every 3 to 4 months. He also obtained a history that although the plaintiff could reach above shoulder height, with any repetition or load he often became quite sore.
40On examination he observed that the plaintiff could forward flex 150° extension to 40°, abduct to 160°, adduct to 250°, externally rotate to 50° and internally rotate 90°. He found there was no marked restriction of range of movement or atrophy of the overall level of musculature across the upper shoulder girdle. From a functional perspective, he concluded the plaintiff could lift up to 25 kg as a team leader and perform modified duties. He also obtained a history of the plaintiff’s difficulties with sleeping on the right side. From a social perspective, the plaintiff had changed the way he mowed lawns and now used an electric lawnmower; he could do minimal gardening but essentially, social activities, such as collecting coins and playing poker had not been affected.[15]
[15]DCB 57-59
Mr Barclay Reid, general surgeon
41The plaintiff was examined by Mr Reid, general surgeon, on 17 July 2023 and he prepared a report dated 8 August 2023.
42Mr Reid noted pain at a level of 2 on a scale of 10 most of the time. Certain tasks like making a bed and moving a heavy doona increased his pain. He could not sleep on his right side. The plaintiff reported that he took ibuprofen around once or twice per week and was continuing with physiotherapy once per month as well as performing exercises at home. He did gardening, including using a lightweight electric lawnmower and was able to undertake his own activities of daily living.
43Mr Reid diagnosed a fracture of the blade of the right scapula, which has healed with displacement and a projection of sharp bone in the lower part of the medial border. Clinical examination demonstrated only minimal effect on the muscles of the shoulder girdle and rotator cuff. There was a good prognosis and pain was expected to gradually diminish. There would be a minor deficit in the range of movement in the long-term and the plaintiff was fit for current modified duties.
Issues and submissions
Plaintiff’s submissions
44It was submitted on behalf of the plaintiff that:
(a) The plaintiff was a credible witness and any attacks on the plaintiff’s credibility in relation to his medication were misplaced. Maintenance physiotherapy had been completed and he was weaning himself off medication. There is no inconsistency in his evidence.
(b) The plaintiff is a stoic indivividual. I was referred to the decision of Jarvie v Sideliner Contracting[16] at paragraph [69] which the plaintiff’s Senior counsel submitted “envelopes this case beautifully and illustrates the point”[17]:
‘Moreover, the fact that the applicant is stoic and attempts to work (and indeed works), in circumstances where others with the same injury might not, is not a matter which ought to work against him. As this Court has said before, a stoic applicant who has been prepared to put up with pain and suffering and make the best of his or her situation should not be treated less favourably than an applicant who, being of less strength of character, simply resigns himself or herself to the injury. The stoic tends to understate the level of pain experienced and, hence, mask to the observer the true dimension of the pain consequence. In the employment context, the stoic is more likely to persist in performing work, rather than cease work altogether as a less stoic person might do, allowing their employment choices and work practices to be dictated by tolerable levels of pain which are stoically endured. On the evidence in the present case, those observations are apposite to the applicant and inform the question of whether his injury satisfies the very considerable test.’
(c) The plaintiff has adapted properly and appropriately to a nasty injury and he should not be disadvantaged compared to someone who “drops their bundle”[18]. The evidence of pain and disability in this case is substantial when taken outside the work context. The plaintiff requires significant mechanical assistance at work and there is substantial evidence of pain and disability outside the work context.
(d) The plaintiff is an impressive individual who escaped surgery for a nasty injury and has got himself back on track in terms of work.
(e) Mr Chehata’s opinion, which is relied on by the defendant, is inconsistent.
[16][2024] VSCA 144 [69]
[17] T47, L19
[18] T48, L1
Defendant’s submissions
45The Defendant submitted that:
(a) The plaintiff has not satisfied the court that the injury is serious. Mr Treseder has concluded that the plaintiff does not require surgery and that he was of the opinion that the plaintiff had only relatively mild adverse symptoms.
(b) The reports of the general practitioner Dr Gankin should be given little weight because the plaintiff last saw him on 24 April 2023.
(c) Dr Partsalis, although he noted the plaintiff did not have full movement of his shoulder, on examination he found that the plaintiff did have a functional range of motion. Given the plaintiff retained functional movement of the shoulder, the injury did not constitute a serious injury.
(d) Mr Chehata’s opinion should be preferred. He examined the plaintiff on 30 April 2024, and he concluded that there was some residual scapula thoracic stiffness accounting for a small amount of restriction at the level of the right shoulder joint. Dr Chehata considered that in the long-term the restriction was likely very slight. There may be small and very particular motions, particularly above a certain height that may be problematic, but the expectation would be that the plaintiff would make a full recovery.[19] The fracture had united completely and healed with no residual non-union which did not require internal fixation. The actual scapular itself and the area that was broken had completely united. His recreational and social activities would only be affected very minimally.
(e) The injury was of very minimal effect and there was very minimal pain. The plaintiff now took 10 ibuprofen tablets a week because he stopped physiotherapy. He ceased physiotherapy 6 to 7 months ago. His oral evidence differed to his affidavit sworn only the week before the hearing of the application. The defendant submitted the plaintiff exaggerated the use of medication.
(f) Mr Reid saw the plaintiff in August 2023 and was of the view that there was a good prognosis and that the pain would gradually diminish resulting in a minor deficit in the range of movement in the long-term. This is in line with the plaintiff’s evidence that there was a functional range of motion.
(g) I was referred to the decision of Aburrow v Network Personnel Pty Ltd[20] where Maxwell P referred to Haden Engineering Pty Ltd v McKinnon[21], and the need to “distinguish between the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.”[22] I was also referred to the decision of Peak Engineering & Anor[23] and KespervVWA.[24]
(h) The plaintiff has retained the ability to work, has been promoted and developed adaptation strategies to manage his employment. There was no evidence that he preferred his pre-injury duties or that the loss of his pre-injury duties was a significant consequence.
[19]DCB 64
[20] [2013] VSCA 46
[21] (2010) 31 VR 1
[22]Aburrow v Network Personnel Pty Ltd [2013] VSCA 46 [10]
[23] [2014] VSCA 67 [38] and [45]
[24][2024] VSCA 237
Credit
46No serious attack was made to the plaintiff’s credit by the defendant. The plaintiff’s in relation to the medication, in my view, was consistent. His evidence in re-examination was that “at the moment” he took about 10 ibuprofen per week, about 5 doses of two tablets. In his affidavit affirmed on 13 November 2024 he affirmed that he took “ibuprofen a few times each week when I simply cannot put up with the pain”. A few times can mean 5 doses per week. It is also consistent with the history recorded by Dr Chehata that he takes medication between 1 to 5 times per week. His evidence that he gave up physiotherapy because he needed to wean himself off it because it was not a long-term strategy to manage his pain, was convincing and only enhanced his credit.
47The plaintiff presented as a stoic man who underplayed the extent of his pain particularly as he wanted to keep working. He did not present as someone whose nature it was to complain.
48Having had the opportunity to observe the plaintiff in the witness box, I accept that the plaintiff was a truthful and impressive witness. My assessment of him was that he presented in a straightforward manner and that he was an individual who had worked hard to adapt in the context of an injury which left him with significant deficits. I accept his evidence regarding his pain and restriction of movement that he experiences in his right shoulder.
Compensable injury
49I accept the Medical Panel opinion that the plaintiff suffers from right shoulder dysfunction and right scapular muscular dysfunction following a traumatic right scapular fracture and a soft tissue injury to the right shoulder.
50I accept that the CT scan taken in July 2022[25] shows a united scapular body fracture with displacement of the insertion of teres minor and the displacement results in a spike of bone distally, as reported by Mr Treseder. Dr Partsalis also noted the CT revealed a fracture through the inferior aspect of the body of the scapular with some displacement and an angulated fragment.
[25] Exhibit 2
51I prefer both of their opinions to that of Dr Chehata. The criticisms made by the plaintiff’s senior counsel of Dr Chehata’s opinion have some validity. On the one hand, in his report dated 30 April 2024 he says the plaintiff has “intermittent, constant pain”, and then he says the plaintiff “continues to experience intermittent shoulder and trapezius pain, managed with occasional use of Brufen” but in his supplementary opinion dated 21 October 2024 he refers to “minimal pain” in the context of his opinion of what usually occurs in the context of a relatively undisplaced scapular fracture. It is difficult to determine what Dr Chehata’s opinion is with respect to the occurrence and frequency of pain.
52In relation to his observations with respect to medication, in his report dated 30 April 2024, on the one hand he refers to the plaintiff taking Brufen on an “as needed basis” which can vary between 1 to 5 times a week and then he makes the observation that the plaintiff is not requiring any medication. Again, it is difficult to reconcile these two observations.
53In the April 2024 report he noted that the imaging pointed to a slight malunion where the teres minor inserts but the October report only refers to a complete united fracture.
Permanence
54The plaintiff is still suffering from pain and loss of range of motion in his shoulder. The plaintiff’s symptomology is unlikely to change based on the preponderance of medical evidence.
55I am satisfied that the plaintiff’s condition is stable and that the consequences he complains of are likely to continue in the foreseeable future. The plaintiff has accepted the surgical opinion that surgery is not warranted at this stage.
Impairment consequences
Pain
56The plaintiff deposed in his first affidavit that he suffers from constant shoulder pain, the severity of which varies. The pain is related to activity, and he cannot do repetitive work or work above the shoulder. Housework aggravates his pain, particularly vacuuming. When the pain increased, he took analgesia.[26]
[26]PCB 7
57In his second affidavit, he confirmed he continues to experience right-sided shoulder / shoulder blade pain all the time. Generally, the pain will flare up with use but can also flare up if he simply moves it the wrong way. When the pain flares up to a stronger level, it can be quite sharp and debilitating.[27]
[27]Second affidavit of Stephen Fahey sworn 13 November 2024, PCB 11
58His oral evidence was consistent and to the effect that when inactive it is probably at a level of 2 out 10 but pain increased on activity.
59The evidence of Ms Cap confirmed that she is aware that he experiences pain and that he continues to take ibuprofen.[28]
[28]Ibid 18
Medication and medical treatment
60The plaintiff tries to manage without medication and will try and tolerate the pain rather than using tablets if he can. However, he will end up taking ibuprofen a few times each week when he cannot endure the pain anymore.[29]
[29]Ibid 11
Work capacity
61The plaintiff currently works as a team leader at the employer, which is a less hands-on role. He is able to delegate and avoid heavier tasks that are likely to flare up shoulder pain. There are a couple machines at work that he has to avoid as they require significant above shoulder reaching.[30]
[30]PCB 12
62The defendant relied on an affidavit sworn by Mandeep Singh on 23 October 2024, who is employed in occupational health and safety with the employer. He confirmed that the plaintiff was promoted to the position of manufacturing team leader on 29 February 2024. The plaintiff worked on a full-time basis but the nature of the work was subject to restrictions and was modified following a work site assessment.
63Although Mr Singh deposed that the plaintiff was able to perform all of his “pre-injury duties immediately prior to his promotion”, the plaintiff rejected this and the exhibit to Mr Singh’s affidavit clearly outlines specific restrictions that the plaintiff’s role is subject to. For instance, the document “Modified Nature of Work Assessment – Manufacture Operator” notes that his tasks in the dispensary have been modified with lifting restrictions and he can only perform certain tasks using mechanical aids.[31] I accept the plaintiff’s evidence that he cannot perform a full range of his pre injury duties.
[31] DCB 23
Sleep
64The plaintiff’s sleep is affected by his pain. If he falls asleep on his right side, he will wake up in pain and have to move. This disturbs his partner, Ms Cap, who will sleep on the couch 3 to 4 times a week.[32]
[32]PCB 8 [34]; Affidavit of Trish Rhonda Cap affirmed 19 November 2024, PCB 18 [23]
Mobility
65The plaintiff reported being limited in reaching with his right arm and the amount of weight he can lift. Ms Cap has deposed that she has re arranged the kitchen so that the plaintiff no longer has to reach high cupboards.
Activities of daily living
66The plaintiff reported struggling with outdoor chores. He purchased an electric mower as he was unable to start the petrol mower after his injury due to pain and restrictions in his shoulder. Despite that he is not able to mow for any length of time.[33] Ms Cap has deposed that she has largely taken over this role.
[33]PCB 7
67He is unable to do normal household tasks. He reported attempting to paint a small area in the house, but it took him 5 to 6 times longer than it would have before his injury and using his non-dominant arm felt awkward. He felt fatigued, and his pain levels increased significantly. He was unable to weed or tend to the vegetable garden.[34]
[34]Ibid 8
68He is no longer able to perform minor maintenance of the family’s cars or wash them, due to the injury.
69The plaintiff is able to manage daily living activities, albeit with pain and awkwardness.[35]
[35]Ibid
70The plaintiff’s partner, Ms Cap, deposed that prior to his injury, he would work hard during the week and on the weekend would spend some time on the house and garden and do some family activities. She described that on most weekends he would have spent time in the garden, doing the lawns, and the whipper snippering, amongst other things. He would also tend to handyman tasks around the house as needed, such as cleaning the gutters, fixing odds and ends around the house, and washing and working on the cars.[36]
[36]Ibid 15
Sports and hobbies
71The plaintiff’s social life is affected by his injury and he is not able to participate in social bowling with his co-workers.[37]
[37]Ibid [32]
72He used to enjoy 10-pin bowling and occasional paintballing, however has not participated in these activities for some time as he is restricted by his shoulder.[38]
[38]Ibid 12
73Prior to his injury, the family would go camping in Moama at a caravan park with their tent every year. Since his injury, the plaintiff no longer goes camping as he can no longer use his right arm to assemble the tent and would not be comfortable sleeping on a blow-up mattress.[39]
[39]PCB 17
74The plaintiff described painting the bathroom roof over three days, a task which ordinarily would take 4 to 5 hours. He did it using his left hand, and was fairly fatigued after undertaking the task.
Driving
75The plaintiff drives between 15 to 20 minutes to and from work each day. He deposes that driving can become painful depending on the traffic and whether he can rest his right arm whilst driving. When the pain in his right arm becomes painful, he will take a break and occasionally take medication.
Findings
76Whilst the plaintiff has been able to return to full time work, his ability to return to work is not determinative against him on the issue of pain and suffering.[40] The Court of Appeal in Kesper v VWA accepted that the plaintiff had suffered a serious injury despite returning to work.
[40]Sumbul v Melbourne All Toyota Wreckers Pty Ltd [2006] VSCA 292
77I accept that the plaintiff has been limited to work which does not aggravate his shoulder pain and continues to work with modified restrictions. The defendant accepts that his position at work has been modified to accommodate the plaintiff’s permanent restrictions. The plaintiff has lost the ability to use his right shoulder in an unrestricted manner. He is clearly a valued employee, and the employer has recognised this by accommodating his permanent restrictions and promoted him.
78Although the plaintiff has lost a minimal range of motion in his right shoulder, which is unlikely to improve, I accept that this loss has significant consequences on his capacity to undertake a range of activities at work and is serious.
79I accept that the plaintiff still suffers from constant ongoing pain which is aggravated by certain activity.
80It is not indicated that further medical treatment will assist in regaining his range of motion or reducing his pain, save for complex surgery if his condition were to deteriorate. He has accepted the advice of an orthopaedic surgeon not to pursue this at this stage. I do not consider that his modest medication intake detracts from the seriousness of his pain. In addition, it was not suggested by any of the medical examiners that his treatment regime is not reasonable. He has attempted to self-manage his pain in a sustainable way rather than resorting to physiotherapy or medication despite obtaining obvious benefits from them.
81There has been a significant impact on this plaintiff’s recreational activities; in that he has completely ceased bowling and fishing with his son. His garden has turned to weeds and his camping activities have been severely curtailed. This is corroborated by his partner, Ms Cap. Ms Cap also details the family tradition of installing Christmas lights which the plaintiff can no longer do as he is unable to reach in a way needed to secure the lights. She also said that the plaintiff is unable to clean the gutters, so they have to pay someone to do that.
82The plaintiff retains a capacity to care for himself and live independently, however he has struggled with heavier domestic duties such as vacuuming. He no longer services or washes the family cars.
83I accept that his sleep is affected. When he does roll onto his right side it causes him pain and affects his sleep.
84I accept that these are all significant impacts on the plaintiff. As Ms Cap said in her affidavit, the plaintiff’s injuries affect him and his family on a daily basis.
Conclusion
85My assessment of the plaintiff’s claim involves a comparison between his claimed consequences and the other cases in the range of possible impairments. The plaintiff has the onus of satisfying me that, on balance, the consequences to him can be fairly described as “at least very considerable”.
86When these consequences are balanced with what the plaintiff has retained, I am persuaded, on the balance of probabilities and in the light of evidence as a whole, that the consequences to the plaintiff satisfies the test. I accept that this injury has had consequences to him, and I am satisfied that, when judged by a comparison with other cases in the range of possible impairments, the injury can be fairly described as being “more than significant or marked”, and as being “at least very considerable”.
87The plaintiff therefore satisfies the narrative test for pain and suffering.
88Accordingly, I grant the plaintiff’s application.
89I will hear argument with respect to costs.
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