Graham v Baldwin Boats Pty Ltd (ACN 93 056 538 615)
[2018] VCC 1687
•23 October 2018
| IN THE COUNTY COURT OF VICTORIA AT MILDURA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-04127
| AARON GRAHAM | Plaintiff |
| v | |
| BALDWIN BOATS PTY LTD (ACN 93 056 538 615) | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 9 October 2018 | |
DATE OF JUDGMENT: | 23 October 2018 | |
CASE MAY BE CITED AS: | Graham v Baldwin Boats Pty Ltd (ACN 93 056 538 615) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1687 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the right shoulder – causation pain and suffering only
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; AG Staff Pty Ltd v Filipowicz [2012] VSCA 60; Petkovski v Galletti[1994] 1 VR 436; Bezzina v Phi & Anor [2012] VSCA 161
Judgment: Leave granted to bring proceedings for damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Ms M Lang | Ryan Legal |
| For the Defendant | Mr W R Middleton QC with Mr R Kumar | Hall & Wilcox |
HER HONOUR:
Preliminary
1 This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”) in relation to an incident at work with Baldwin Boats Pty Ltd (“the defendant”) on 16 January 2012 (“the said date”).
2 The body function said to be impaired is the right shoulder
3 The plaintiff bears an overall burden of proof upon the balance of probabilities.
4 By s325(2)(b) of the WIRC Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
5 I 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.
6 Subsection s325(2)(h) of the WIRC Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
7 I 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.
8 Subsection s325(2)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
9 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
10The plaintiff swore two affidavits and was cross-examined. Also in evidence were medical reports and other material. I have read all the tendered material.
The Plaintiff’s evidence
11 The plaintiff is currently twenty-six, having been born in March 1992. He completed Year 10 in 2008.
12 In 2009, the plaintiff commenced a metal fabrication apprenticeship with the defendant, a business involved in the construction, sales and servicing of a range of vessels, including houseboats. He worked about forty hours a week and his intention was to begin a career using the skills and qualifications he learned from that apprenticeship.
13 The plaintiff’s work with the defendant involved welding, cutting and shaping, and fitting metal parts and sheets in the process of constructing boats. He also did general maintenance and labouring tasks. His duties were quite varied and required the use of various hand tools and power tools.
14 The plaintiff was also required to perform duties on or near the river. These usually involved performing maintenance on boats or occasionally assisting with putting boats in and out of the water.
15 Sometime in early 2011, the plaintiff dislocated his right shoulder when playing football (“the first dislocation”). He believed he had a few weeks off work and his shoulder recovered with some physiotherapy. He believed he had otherwise been fit and healthy all his life.
16 The first dislocation happened when the plaintiff tackled another player during a game. They fell to the ground and the plaintiff’s shoulder dislocated. He subsequently had it reduced in hospital[3] whilst he was wearing an oxygen mask. He was 90 per cent sure he had physiotherapy at Sunraysia Physiotherapy after this incident. His arm was in a sling for three or four weeks. He played two further games later that year without injury.[4]
[3]Mildura Base Hospital on 6 May 2011
[4]T5
17 Before the said date, the plaintiff had ongoing instability of his shoulder whilst in bed most nights. He was not then taking sleeping medication. He was not conscious of any dislocation with activities such as doing a high five at that stage.[5]
[5]T6
The incident
18 On the said date, the plaintiff was working down on the river doing some maintenance on a moored houseboat. A co-worker asked him to help wince in a boat that was filling with water.
19 The plaintiff began to haul the wince with two hands but due to the boat flooding, it was awkward, heavy and difficult. The situation was very stressful. As he was winding the winch and hauling the boat onto the trailer, the plaintiff’s right shoulder suddenly dislocated out of its socket (“the incident”). He was not using a grinder, as Dr Nimon reported.[6]
[6]T6
20 The pain was excruciating and the plaintiff immediately stopped what he was doing. He felt dazed and sat on the trailer and waited for help. An ambulance arrived and he was taken to Mildura Base Hospital. There, he had x-rays which did not identify any fractures. He was given pain relief and his shoulder was relocated into the socket and he was discharged that day.
21 The plaintiff attended his general practitioner, Dr Jago, who prescribed Tramadol and arranged for a specialist referral to orthopaedic surgeon, Mr Gardiner. The plaintiff was advised to rest, take time off work, and was referred for physiotherapy.
22 On 2 February 2012, the plaintiff saw Mr Gardiner. The plaintiff had an MRI scan of his right shoulder, which he believed showed a Hill-Sachs lesion with bone bruising, an anterior labral tear and anterior labral detachment.
23 The plaintiff was referred for further specialist treatment and review with Mr Nimon, orthopaedic surgeon, who recommended surgery in the form of an arthroscopic stabilisation of his right shoulder.
24 Despite the ongoing pain and right shoulder restriction, the plaintiff was keen to get back to work but was advised against doing so.
25 On 4 April 2012, Mr Nimon performed a shoulder reconstruction (“the first surgery”). The plaintiff had physiotherapy following this procedure, and attended trades school during his recovery.
26 The plaintiff returned to work on light duties and eventually resumed normal hours. He still had some limitation of the use of his right arm when lifting and reaching. He always tried to be careful how he used this arm.
27 When the plaintiff finally completed his apprenticeship in about May 2013, he was not offered an ongoing position with the defendant.
28 The plaintiff’s right shoulder continued to be problematic, and during 2013 and 2014, it popped out numerous times. He estimated this would have happened as many as thirty times or more, often as a result of doing basic everyday movements. For example it dislocated when he put on a jumper, when he gave someone a high five and when lying a certain way in bed. It had never dislocated in bed in the period between the first dislocation and the incident. During that time, he just had some shoulder pain, and it was unstable.[7]
[7]T8
29 Each time the plaintiff’s shoulder dislocated, it was very painful. Sometimes he needed to see the doctor to obtain pain relief or anti-inflammatories, and other times, it would resolve itself.
30 The instability and unreliability of the plaintiff’s shoulder made it very difficult for him to resume regular employment; however, he managed to obtain a job doing some light labouring work with a motorhome company but was made redundant after about nine months.
31 The plaintiff then found work as a trailer mechanic at GTS Transport. His right shoulder continued to be painful and problematic at times throughout that work. It never felt stable and remained prone to dislocating. He was made redundant after about nine months in that job.
32 In early 2015, the plaintiff underwent more scans. He attended his general practitioner and was prescribed Mobic for inflammation of his shoulder. Further surgery was recommended but the insurer refused to fund it, thus the plaintiff’s condition remained unresolved for a prolonged period.
33 Eventually, the insurer agreed to pay for the surgery and on 20 January 2016, Dr Leonello, shoulder, wrist, elbow and hand surgeon, performed a Latarjet procedure which involving screws being inserted into the plaintiff’s shoulder joint (“the second surgery”).
34 The plaintiff thought he had seen Dr Leonello once or twice after that surgery. The last time could have been 21 April 2016. The plaintiff agreed he had an excellent range of motion on that examination.[8]
[8]T9
35 In an Oxford Shoulder Score in a survey conducted on that date, the plaintiff answered “some nights” to the question “Have you been troubled by pain from the shoulder in bed at night?” and “mild” to the question “How would you describe the worse pain you have had from your shoulder?” His total score was 45, in the excellent range of 40-48.
36 Dr Leonello wanted the plaintiff to go back to work, but when he was able to resume modified duties at GTS, the plaintiff was told there were no light duties for him and he accepted a redundancy.[9]
[9]T9
37 Following the second surgery, the plaintiff attended Lime Therapy for physiotherapy and participated in hydrotherapy.[10]
[10]Andrew Noye
38 The plaintiff agreed his ability to do a range of tasks improved after the second surgery.[11] As Dr Elder reported, the plaintiff had a bit of pain, but otherwise he was extremely happy with the outcome of that surgery.[12]
[11]T15
[12]T13
Post-incident work
39 The plaintiff worked hard to rehabilitate and was eventually cleared for normal duties. On or about May 2016, he started a four-year apprenticeship in electronics and communications with Auto Door Control Services (“Auto Door”). As of May 2017, he was working 38 hours a week, earning about $661 gross per week as a mature-aged apprentice.
40 In his current job at Auto Door, the plaintiff physically services and maintains automatic sliding doors and shop fronts. All of his work involves using his right upper limb. He generally uses hand tools and light power tools.[13] His job with the defendant was heavier because it involved metalwork.[14]
[13]T9
[14]T22
41 In his present job, the plaintiff does not lift anything above his head and does not use any heavy objects. He would not be able to do the heavy lifting now that he did with the defendant, and would find that very difficult.[15]
[15]T23
42 The incident injury had a major impact on the plaintiff’s chosen career. He had always wanted to work in the mines and set out to obtain a metal fabrication apprenticeship to fill that ambition. He applied for a job a few years back but nothing came of it.
43 As a result of the incident, the plaintiff was unable to utilise the full skills and qualifications from his apprenticeship. He felt his injuries had negatively affected his earning capacity and he was limited in what occupation he would be able to do in the future. He commenced the other apprenticeship in order to obtain other skills and qualifications and was trying to get on with his life.
Current pain
44 The plaintiff continues to suffer from pain in his right shoulder. It is a dull ache, located mainly around the front part of his shoulder. The pain is there most of the time and is worse in cold weather.
45 In his 2017 affidavit, the plaintiff deposed that due to his right shoulder pain, he also experienced pain in his neck and back and at times the left side of his back had a pinching sensation which could lead to soreness.
46 When he elevates his right arm, the plaintiff experiences a dead sort of feeling. The pain is worse first thing in the morning. He feels like an old person. Overhead activity particularly aggravates his shoulder, and his range of motion remains limited.
47 The plaintiff’s ongoing pain and right shoulder problems are only mild compared to before the most recent operation.[16] His condition is stable by comparison to how he was between the two operations.[17]
[16]T10
[17]T11
48 The plaintiff agreed that his range of shoulder motion is now close to normal, and there has not been a further dislocation since the second surgery with nothing like the instability he had between the first dislocation and the incident.[18]
[18]T21
49 In re-examination, the plaintiff demonstrated movement of his right arm in all directions. Consistently, movements of the right arm were less than the left.[19]
[19]T22
50 The plaintiff thought there was some wasting, with his right shoulder looking a little smaller than the left. There is no crepitus on movement.[20]
[20]T14
Current sleep
51 The plaintiff still cannot sleep on his right side because of his shoulder injury. He is careful how often he takes a sleeping tablet, because his doctor told him “to use it, don’t abuse it”. Without a sleeping tablet, he wakes three or four times a night and is often tired during the day.
52 The plaintiff avoids sleeping on his right side. He is still conscious of his shoulder whilst in bed.[21]
[21]T11
53 The plaintiff agreed he could do the range of activities Dr Le Leu described,[22] but disagreed with his comment that sleeping was now good, even if he lies on his right shoulder.[23]
[22]Sharing housework and light gardening
[23]T15
Current treatment
54 The plaintiff sees Dr Claire Thys, general practitioner, who has prescribed a sleeping tablet which helps his sleep. She also prescribes medication for depression. The plaintiff does not take medication for pain because nothing seems to help.
55 The plaintiff continues to take sleeping tablets once or twice a week.[24] He could not remember when he first started taking them, but he did not do so after the first dislocation.[25]
[24]T15
[25]T24
56 The plaintiff is not currently taking any other medication or having physiotherapy. He is trying to improve the movement and strength of his right arm. He does light weights and uses TheraBands at home recommended by his physiotherapist.[26]
[26]T10
Activities
Australian Rules
57 Prior to the incident, the plaintiff was very active and enjoyed a range of sporting and recreational activities. Football in particular was his passion. He was a good player, and playing gave him a source of pride. The game kept him physically fit and it was the main social outlet in his life.
58 Prior to the incident, the plaintiff had been involved in discussions about getting paid to play football. After the incident, he had tried to resume some light training but had been unable to return to playing.
59 In cross-examination, it became apparent the plaintiff had a limited return to playing football in 2013. There was one episode of dislocation in May 2013 when he simply dropped the ball to kick it at training. There was a further dislocation without any great effort. There was also a dislocation during a game without any contact.[27]
[27]T8
60 The plaintiff thought the dislocations on his return to football occurred when there was no contact. He could not recall attending Mildura Base Hospital on 6 July 2013, having suffered a dislocation following a right shoulder-to-shoulder bump.[28]
[28]T16
61 As of May 2017, the plaintiff no longer attended local football matches as a spectator because doing so made him feel so sad and frustrated at his situation. Football had given him a sense of camaraderie with teammates, and a sense of being part of the broader community. He believed that was particularly important living in a country town like Mildura. It was devastating for him that this part of his life had been taken away from him due to his shoulder injury.
62 The plaintiff has been unable to return to his sports because of his shoulder injury. He deeply misses the social aspect. Earlier this year, he mentored a female football team. He was missing his football and saw this is a good way to be part of the club. He stopped partway through the season because he lost interest.
63 The plaintiff was not a hands-on coach, and he did not take drills or kick the football with the girls but there is nothing stopping him from doing that really.[29] He really did not like being a football coach.[30]
[29]T12
[30]T23
64 Most doctors have advised the plaintiff not to play football because of the contact involved.[31]
[31]T8
Other sporting activities
65 Prior to the incident, the plaintiff owned a powerboat and regularly went water skiing with friends. He derived a lot of enjoyment from this activity. He was forced to sell his boat in order to pay the bills that were piling up. He had not been water skiing since the incident. He has not asked doctors whether or not he can water ski.[32]
[32]T12
66 The plaintiff bought a boat for fishing about a year ago. He has not been out fishing very many times. He goes with his mates. He does not do the winching. He drives the boat and his mate operates the winch.[33] He does not use the winch because “it is an insecurity”, he guesses, from the previous injury. He has not been water skiing as he does not want to hurt his shoulder.[34]
[33]T12
[34]T23
67 After the incident, the plaintiff also had to sell his motorbike which he previously regularly took out with friends. He has not bought a new one.[35] There was no way he could now do dirt bike riding or water skiing. These were activities which were a source of socialisation, physical fitness, enjoyment and friendship. It made him feel sad that he was still quite young, that these activities were no longer part of his life. He also enjoyed playing cricket, basketball and baseball but these activities were now very difficult for him due to his injuries.
[35]T12
68 The plaintiff has not played baseball or basketball since the incident. He has been to cricket training but he has not actually played. He stood in the field in a charity match for a mate who died of cancer. He did nothing and just stood there.[36]
[36]T13
69 The plaintiff has put on weight because he is less active. This has had a negative effect on his self-esteem.
70 The plaintiff agreed he was shown on Facebook fishing, on holidays, and at the car racing but he is not a mechanic. He put a new floor in the boat. He still goes camping, having gone only two weeks before the hearing.[37]
[37]T18
71 Since the incident, the plaintiff had only played about five minutes of squash as a fill in, then his shoulder was hurting so he stopped.[38] Having been taken through 2016 squash records, the plaintiff agreed that year he was a fill in on ten occasions and scored 42 points. He had not played since. He filled in in short games against children. He was not in an actual team, he just filled in.[39]
[38]T18
[39]T19
72 The plaintiff thought he had played in the 2016 club championship. He agreed that squash required quite an active role for his right hand using the racquet, but he did not swing hard.[40]
[40]T19
73 The plaintiff could not recall playing in 2017.[41] The records that year indicated he played in “number ones” eight times for forty-four points.
[41]T19
Personal life
74 After the incident, the plaintiff was forced to move back with his parents. He often felt frustrated and angry because of his shoulder condition and pain and that led to arguments with them. He felt his relationship with them worsened after the incident.
75 The plaintiff’s younger brother has not had any problems with his shoulder dislocating. The plaintiff really did not know much about his father having any issues of this nature. He just knew his father had a dislocation and had a reconstruction.[42]
[42]T14
76 On a personal level, the plaintiff felt he was a less social person since the incident. He did not go out as much and had lost friends. He believed his inability to socialise and participate in various activities had contributed to this situation. He was less tolerant, grumpier and became angry at things more easily than he did before the incident.
77 The plaintiff did not go out much, although in 2016, he had travelled to Thailand with his girlfriend, and he had also travelled to Melbourne by car on one occasion.
78 Towards the end of last year, this relationship ended. The plaintiff’s partner would say to him that he was happy and bubbly when she met him and he was no longer that person. He believes his depression also contributed to the breakdown of the relationship.
The Plaintiff’s medical evidence
Treaters
79 Dr Nirzhar, general practitioner at Tristar Medical Group (“Tristar”), referred the plaintiff to Dr Leonello and also to Mr Gardiner for a second opinion. He last saw the plaintiff in November 2015.
80 Dr Hussain, also at Tristar, certified the plaintiff as unfit for any duties February to March 2016.
Mr Douglas Gardiner, orthopaedic surgeon
81 Mr Gardiner reported to Dr Jago on 10 February 2012.
82 Mr Gardiner then advised the plaintiff’s MRI scan had a report on his disc which stated he had a lesion and a significant labral tear. Mr Gardiner thought that fitted well with the recurrent anterior dislocation, and understood the plaintiff was waiting to gain acceptance of his claim.
83 Mr Gardiner wrote to Dr Saies, shoulder, hand, wrist and elbow surgeon, on 17 February 2012. He noted the plaintiff had most recently dislocated his shoulder at work when using a winch, at which time he sustained a significant traction rotation injury to his right shoulder and sustained an anterior dislocation thereof.
84 Mr Gardiner asked Dr Saies to sort the plaintiff out surgically, as he saw fit, because he had more experience in that type of surgery.
85 Mr Gardiner wrote to Dr Nimon in October 2015. He then advised he completely disagreed with Dr Elder’s view that the operation Dr Nimon had performed was inappropriate, and asked if he could sort the plaintiff’s situation out surgically.
86 Mr Gardiner wrote to Xchanging in May 2015, noting the 2012 surgery.
87 The plaintiff had consulted him on 30 March 2015, stating his shoulder was reasonable following the reconstruction but of recent times, when performing normal duties, his right shoulder redislocated. This was a simple act of putting a jumper on about twelve months after surgery.
88 Mr Gardiner advised this was not a new injury as XChanging had decided. The plaintiff’s shoulder had obviously never fully stabilised by the surgery and therefore it was a continuing complication of the previous work injury. He advised that the reluctance to pay for the consultation was doing nothing but delaying the process of treating the plaintiff. Clearly, his shoulder was never stable, despite feeling quite well, and the simple provocation of putting on a jumper is not a new injury but a recurrence of the old.
Dr Gavin Nimon, orthopaedic surgeon
89 On 4 April 2012, Dr Nimon performed an arthroscopic stabilisation of the plaintiff’s right shoulder.
90 When Dr Nimon wrote to Dr Jago in September 2013, he advised that the plaintiff had gone on to redislocate his shoulder and, as such, was due to see him regarding a revision procedure. He noted WorkCover would not cover the plaintiff for the costs of travel or surgery. Therefore, it seemed pointless for him to see the plaintiff without the option of being able to do anything for him.
91 Dr Nimon advised the plaintiff was probably better to be referred to one of the public hospitals. He was disappointed the plaintiff’s shoulder had redislocated but thought the next step would be something like an open stabilisation such as a Latarjet procedure, which was obviously a fairly big and definitive procedure.
92 Dr Nimon wrote to Mr Gardiner in November 2015, noting occupational physician Dr David Elder’s report.
93 Responding to Dr Elder’s criticism of the procedure undertaken by him, Dr Nimon explained that an arthroscopic stabilisation had been performed. Whilst it was only through two small arthroscopic portals, the plaintiff had had a full reconstruction – a standard technique used for a shoulder that dislocates in a young patient.
94 Dr Nimon confirmed the plaintiff had an appropriate initial procedure, being a full reconstruction done arthroscopically. The fact that he had continued to have further dislocations related to the fact that the procedure, whilst appropriate, had not had a successful result.
95 Dr Nimon commented that it was not surprising that Dr Elder did not understand the surgical notes, because he is not a surgeon himself.
96 Dr Nimon reported to the Accident Compensation Conciliation Service in June 2016.
97 Dr Nimon then noted the plaintiff sustained a significant traction rotation injury to the right shoulder and sustained an anterior dislocation of the shoulder in the incident. The MRI scan demonstrated a Hill-Sachs lesion and a significant labral tear.
98 The plaintiff had told Dr Nimon the initial injury at football occurred when he was tackled while holding the ball and his arm was twisted and externally rotated. He told Dr Nimon it dislocated and that following that, he had episodes of instability whilst in bed at night. He was then working using a grinder, moving his arm forward, when it suddenly popped out of the joint.
99 Dr Nimon diagnosed recurrent shoulder instability which had failed to fully respond to an arthroscopic stabilisation and which now would best be treated with a bone transfer to the front of the glenoid, called a Latarjet procedure.
100 Dr Nimon thought there was an element of both the plaintiff’s previous sporting history, which led to the first dislocation, and work history, when using a grinder, which had been contributing factors to his recurrent instability issues. Initially however, he was surprised and disappointed the plaintiff went on to recurrent instability despite what he believed was ideal surgery. He had not seen the plaintiff since 2012. He felt it appropriate to offer him a revision shoulder procedure. He was not sure why that had not happened.
Dr Leonello, orthopaedic surgeon
101 Dr Leonello reported in September 2018, having first seen the plaintiff in November 2015 at the request of his general practitioner.
102 Dr Leonello noted the plaintiff originally dislocated his shoulder in 2011 playing football, and it was reduced in hospital. He had a second dislocation when using a wince to pull up a boat on a trailer in January 2012 and had an arthroscopic stabilisation in April 2012.
103 After a course of around six months, the plaintiff returned to football, where some light activity caused a further dislocation and, since then, he had recurrent instability episodes. When first seen, the plaintiff had continued instability symptoms and was otherwise well.
104 Investigations organised by Dr Leonello revealed signs of anterior glenoid bone damage and thus, he recommended the Latarjet procedure, an open stabilisation procedure utilising bone graft to rebuild the anterior glenoid bone loss. This went ahead on 20 January 2016 and technically went well.
105 Dr Leonello saw the plaintiff three months post-surgery. At that stage, he was doing well, with an excellent range of motion for his early stage of recovery (although still a little stiff but within expected parameters). He also reported feeling much improved stability of his shoulder subjectively.
106 Dr Leonello had cleared the plaintiff for work as a trailer mechanic but advised against football for a further three months. He has not seen him since.
107 Dr Leonello diagnosed recurrent anterior instability of the right shoulder. The plaintiff’s symptoms were very consistent with an organic cause, with a labral tear and glenoid bone deficiency.
108 Dr Leonello thought the prognosis in the short to medium term was generally good, with improved stability and function of the shoulder. There is, however, an increased risk long term of post-traumatic osteoarthritis which may manifest as a slowly progressive painful stiffness of the shoulder that may need further interventions such as a potential shoulder arthroplasty in the future – potentially in ten to twenty years.
Medico-legal examiners
Mr Gary Grossbard, orthopaedic surgeon
109 The plaintiff was examined by Mr Grossbard on17 April 2018.
110 The plaintiff told Mr Grossbard he had dislocated his right shoulder when playing football in late 2011. It was relocated at Mildura Base Hospital and he had some physiotherapy. He was able to return to full duties and regained a full range of shoulder motion. He was able to return to football for the last few games of the season.
111 The plaintiff told Mr Grossbard he had assisted a co-worker to salvage a boat on the said date. He began winching the boat up the ramp and during that activity his right shoulder dislocated.
112 Following the incident, the plaintiff went to Mildura Base Hospital, then remained in a sling for two or three weeks and had physiotherapy. He was referred to Mr Nimon in Adelaide, who operated on 4 April 2012. It took about six weeks for the plaintiff to commence mobilisation of the shoulder. That was undertaken with significant pain. The plaintiff had physiotherapy.
113 The plaintiff described restriction of the right shoulder following surgery and he returned to light duties for a few weeks before full-time duties.
114 Over the next period of time, the plaintiff experienced multiple shoulder dislocations, more than forty occurring, including when putting on a jumper. He had gone to football training and suffered six to eight dislocations during this period. He finished one game but partially played three. His shoulder also dislocated when he was asleep in bed, and on one occasion, dislocated when he raised his arm while sitting in a friend’s car.
115 The plaintiff was sacked on completing his apprenticeship and he subsequently found short periods of work as a metal fabricator and then worked as a truck and trailer maintenance worker for GTS Transport for two years.
116 It was suggested further surgery would be required but it took some years before authority was obtained to consider further treatment because of denial of funding. The plaintiff was then assessed by Dr Leonello in Adelaide, who operated in January 2016. Thereafter, the plaintiff was in a sling for four or five weeks before physiotherapy.
117 Following that procedure, there was a marked improvement in symptoms with respect to pain but there was ongoing restricted movement. The plaintiff returned to work after two months but there were no light duties available, and after a couple of weeks when he was cleared, he was sacked.
118 On examination on 17 April 2018, the plaintiff was not then using any medication, he did home exercises and no further specific treatment was being contemplated.
119 The plaintiff complained of pain in the front of his right shoulder, present intermittently and more noticeable in cold weather. He had pain if he used his arm at shoulder height and after work most days. It was a dead, aching feeling. Usually the pain was mild but could get up to 4 to 5 out of 10. He felt his shoulder was stable, although he had not fully stressed it. He had lost a range of motion and had difficulty with activities above height and also difficulty lifting heavy objects of more than a few kilograms.
120 On examination, there was no muscle wasting around the shoulder girdle and the deltoid muscle was functioning. There was mild anterior shoulder tenderness.
121 Mr Grossbard noted the original traumatic dislocation playing football and the further dislocation in the incident, managed surgically. The plaintiff then went eighteen months before a further dislocation when reaching down for a ball.
122 Subsequently, there were multiple dislocations under various circumstances, prompting a revision stabilisation using a Latarjet procedure. While that had prevented further dislocation, there was a subsequent loss of shoulder motion and some ongoing discomfort, particularly after activity.
123 Mr Grossbard thought that was sufficient to limit the plaintiff’s work capacity, particularly with respect to lifting and working at or above shoulder height, a situation which would persist into the foreseeable future.
124 While there was an increased likelihood of the plaintiff developing degenerative changes within the shoulder joint, Mr Grossbard thought that was still fairly unlikely.
Investigations
125 Ms Simm noted in his report that the plaintiff underwent a right shoulder x-ray on 7 May 2011 (post football dislocation and pre incident).[43]
[43]There was no report of this x-ray
126 In February 2012, Mr Gardiner organised an MRI scan which he reported showed a Hills Sachs lesion and a significant labral tear.
127 Dr Turner from the Mildura Base Hospital organised a right shoulder x-ray on 12 November 2012. It was reported the humeral head was enlocated and the subacromial space preserved. No fracture or rotator cuff calcification was seen. There was a Hill-Sachs lesion of the humerus in keeping with the history of previous recurrent dislocation.
128 An x-ray of the right shoulder of 3 May 2013 was carried out post reduction from dislocation. It was reported alignment was maintained and no fracture seen.
129 There was an ultrasound of the right shoulder in June 2014. It was reported rotator cuff tendons were intact. The subacromial-subdeltoid bursa was slightly prominent and no impingement was noted.
130 There was an ultrasound of the right shoulder in March 2015. It was reported the rotator cuff tendons and the longhead of biceps tendon were intact. There was mild diffuse thickening of the subacromial-subdeltoid bursa, with a small amount of fluid noted. No significant impingement was noted and the AC joint was stable.
131 There was also an x-ray of the right shoulder on that date. It was reported there was no displaced fracture identified, joint alignment was maintained and articular margins were smooth.
132 Dr Leonello organised an x-ray and CT scan of the right shoulder in November 2015. There was evidence of previous surgery involving the anterior aspect of the glenoid. Allowing for the previous surgery, no bony degenerative change was seen.
The Defendant’s medico-legal examiners
Dr David Elder, occupational physician
133 Dr Elder examined the plaintiff initially in August 2015 and more recently in February 2017.
134 The plaintiff advised Dr Elder he originally had an anterior dislocation of the shoulder playing football in about February 2011 and then was injured in the incident when using a hand winch.
135 Dr Elder noted the plaintiff’s subsequent treatment, including surgery in 2012, and a further dislocation on 16 May 2013 when doing a training drill at football. There were several dislocations thereafter, including when putting a jumper on. The plaintiff had been back to his surgeon, who told him he needed another operation.
136 Given that history, Dr Elder thought it would appear that the wrong operation was carried out. A full shoulder reconstruction should have been done. In his view, given the history of extreme instability, the plaintiff certainly needs operative intervention, his shoulder having popped out about weekly over the last five weeks.
137 The plaintiff advised there was not any pain at rest, but certainly pain when the shoulder either dislocated or subluxed. Sometimes the plaintiff could put it back himself and sometimes he needed to go to hospital. He did not describe any numbness at rest, but when his shoulder popped out, there was numbness in the middle and fourth fingers of the right hand.
138 The plaintiff told Dr Elder about working at JDS Freight. He had not returned to playing any sports. He helped his friends at the speedway, but there was no significant manual handling. At that stage, the plaintiff was avoiding lifting anything around the house.
139 In view of the history of recurrent dislocations, Dr Elder carried out a very gentle examination with movements to the limb of comfort only. He noted the shoulder appeared lax in all directions.
140 In summary, Dr Elder thought the plaintiff was a very complex case. There was no doubt there was an original injury which was football-related and his treatment enabled him to return to work and sport. Dr Elder noted there was a significant injury with the hand winch which was surgically treated; however, he suspected this was inadequate in its scope and a full reconstruction should have been done. As this was not done, the plaintiff was then prone to recurrent dislocations, which was what has happened.
141 Dr Elder then thought the plaintiff’s impairment could not be assessed as being stabilised.
142 On re-examination on 3 February 2017, the plaintiff still had reduced movement and at the extremes of movement there will be a bit of pain, but otherwise he was extremely happy with the outcome of surgery. He confirmed that since discharged from the specialist, he had not sought any medical care at all.
143 Since May 2016, the plaintiff had changed jobs and now worked full time on maintenance of automatic doors. He could drive an automatic, he could do household chores and he was independent in self care.
144 Dr Elder noted the plaintiff once again presented in a completely straightforward manner. On examination, there was no wasting of the shoulder girdle. A restricted range of motion was measured and was reported. The shoulder was stable and there was no crepitus.
145 In summary, Dr Elder thought the plaintiff has ongoing right shoulder dysfunction relevant to the original injury, treated surgically, and there is a minor sequelae of the surgical scarring. In his view, there was insufficient data and information on which to assess any pre-existing impairment, and he once again remained of the view all of the plaintiff’s impairment related to the incident injury.
Dr Leon Le Leu, occupational physician
146 Dr Le Leu examined the plaintiff on 22 April 2016.
147 Dr Le Leu noted the plaintiff’s right shoulder had dislocated well before the incident when he was playing football. He did not think the plaintiff was off work for very long, perhaps three to four days. His father had also had dislocation of the shoulder and a preventative operation.
148 The plaintiff confirmed the injury to his right shoulder while winching a boat. This was a forward rotation of the winch handle and he was doing it on the up stroke when he had “instant pain” over the tip of his right shoulder. Dr Le Leu noted there did not seem to be anything different about the winching that day, but the boat might have been a little heavier than usual.
149 The plaintiff could not keep working. He went to Mildura Base Hospital and his shoulder was popped back into place. He had an x-ray, and the shoulder was adequately relocated and he was sent off for physiotherapy.
150 After one or two sessions of physiotherapy, the plaintiff was given the all clear to have an operation a few months later, which was performed by Dr Gavin Nimon. That surgeon said the results were good, but then the plaintiff re-dislocated his shoulder after being cleared. He believed he re-dislocated perhaps thirty or forty times subsequently, and these dislocations could occur anywhere.
151 The plaintiff initially returned to light duties, then had an assessment and was cleared for full duties. He continued doing them for another year before finishing his apprenticeship. He then worked at Wirrawa Motor Homes and then at GTS.
152 The plaintiff advised that after the incident, he lost everything. He had to sell his motorbike, his cars, fishing boat, and had to move back home with his parents. This all occurred between the first and second operations. WorkCover eventually ended up paying for the second surgery after a legal fight.
153 The plaintiff was then having only physiotherapy and had had four sessions with some sustained improvement. The final check-up with the surgeon was the previous day, and the plaintiff was given the all clear to return to his truck trailer mechanic work. He had modified his duties and everything was lifted with an overhead crane and jacks.
154 The plaintiff had no pain and felt stronger, but not as strong as he was originally. He felt his range of movement was close to normal.
155 Dr Le Leu noted sleeping was now good, even if the plaintiff lies on his right shoulder, and it was “not good” shortly after the second surgery.
156 The plaintiff shared housework with his girlfriend and there was nothing he could not do around the house now, with a greater ability to do things since the second surgery
157 The plaintiff tried to play football after the first surgery, but he was running and training and dislocated his shoulder. He did nothing for recreation.
158 Dr Le Leu noted the plaintiff suffered from recurrent dislocation for which he has had a preventative operation. He should have recovered completely with two further months of physiotherapy.
159 At that stage, Dr Le Leu did not consider that employment with the defendant was materially contributing to the plaintiff’s condition since he no longer worked in that job. In any case, his dislocation was one that could have occurred anywhere, noting his first dislocation had been at football and there was the indication of genetic susceptibility.
160 Dr Le Leu considered the incident with the defendant an exacerbation of a pre-existing condition. He noted the plaintiff gave the impression that following the first surgery – the arthroscopy, which followed the incident, his rate of dislocation was greatly increased.
161 Dr Le Leu thought the plaintiff had a partial incapacity for work. The compensable injury should resolve in two months. There was a pre-existing condition of genetic susceptibility for shoulder dislocation, as illustrated by his father, and also the pre-existing episode of dislocation at football. He considered the work aggravation had now ceased, and the plaintiff was just recovering from the effects of his second surgery.
162 In two months, Dr Le Leu thought the plaintiff should have the capacity to undertake his pre-injury hours and duties with care, but it is possible he will never regain full capacity.
163 Dr Le Leu thought the plaintiff should remain on light duties for a further two months while having physiotherapy. Beyond that, his duties would depend on how much recovery he had achieved. The restriction should be no lifting with the right hand greater than 2.5 kilograms at or about mid-breast level and minimising work above the mid-breast level.
164 Dr Le Leu noted, with his current employer, the plaintiff had modified some of the work he did and took care so far as not to re-injure his shoulder.
Mr Michael Shannon, orthopaedic surgeon
165 Mr Shannon examined the plaintiff in June 2017.
166 The plaintiff told Mr Shannon that he first had trouble with his right shoulder playing football in 2011. When he tackled another player, they fell to the ground, during which time his shoulder dislocated.
167 The plaintiff told Mr Shannon, on the said date, the boat was filling up with water, and he went to help another worker and winched the boat towards the trailer, and in doing so, his shoulder dislocated.
168 The plaintiff was treated at Mildura Base Hospital, then had reconstructive surgery. The shoulder seemed satisfactory following that procedure, and he went back to work with the defendant and, indeed, resumed football training. When he bent to pick up a football at training, he re-dislocated. He had not had any time off work with that episode, but never resumed football.
169 The plaintiff had then had multiple dislocations over subsequent years with simple things like dressing or rolling over in bed, and he ultimately had the second surgery in January 2016, an open procedure performed in Adelaide, funded by WorkCover after a delay of several years.
170 The plaintiff had, meanwhile, left his employment in 2014. Having finished his apprenticeship, he was not offered a further contract because of concern over liability. He was then unemployed for some months. He then worked for a motorhome company in Mildura for nine months until they ran out of work, and he worked for a truck company for two years, until the second surgery. He lost that job at the time of that surgery, but gained his current apprenticeship twelve months ago, in May 2016.
171 The plaintiff told Mr Shannon his shoulder felt okay although he had limited movement and a bit of discomfort, particularly in cold weather. He avoided putting pressure on his shoulder and was restricted in activities. He played no sport. He was not having any treatment and did not require any medication.
172 On examination, there was mild restriction of shoulder movements, mainly affecting flexion and internal rotation. There was a full range of external rotation and no evidence of impingement and no clinical instability.
173 Noting the football and incident injuries, Mr Shannon stated, by definition, the plaintiff had had recurrent dislocation and had a reconstructive procedure performed arthroscopically, which, while initially successful, subsequently failed, although the trauma was relatively modest. The plaintiff then had multiple dislocations leading to the second surgery with bone grafting, which appears to have been successful, and he has a stable shoulder with limited movement.
174 Mr Shannon noted the natural history of a traumatic dislocation of the shoulder in a young person. If treated conservatively, there is a rate of re-dislocation and re-current dislocation of somewhere between 40 or 50 per cent in young people. The plaintiff’s shoulder, therefore, was likely to be highly vulnerable to further dislocation, although he resumed playing football for a couple of games without further dislocation; however, his shoulder was certainly predisposed to further dislocation, which occurred at work, but apparently with some stress.
175 Mr Shannon commented, nevertheless, winching a boat on a trailer does not normally impose sufficient stress to cause a dislocation in a healthy young man and the significant contributing factor to the dislocation at work was the previous dislocation and associated ligamentous and possibly bony injury.
176 Mr Shannon noted the plaintiff was serving an apprenticeship in electronics, but performed significant physical work in his original trade subsequent to the second surgery. The plaintiff’s current complaints were of some discomfort and restriction of shoulder movement.
177 The prognosis then seemed favourable, and further treatment was not indicated. Mr Shannon thought the plaintiff had a loss of body function and impairment from a combination of the original injury and, to a lesser extent, the compensable injury in the form of discomfort and restriction of movement of the shoulder.
Mr Rodney Simm, orthopaedic surgeon
178 Mr Simm examined the plaintiff on 24 July 2018.
179 The plaintiff told Mr Simm of the football incident in May 2011, when his arm was twisted backwards into an externally rotated position, and the shoulder dislocated. He attended Mildura Base Hospital, where the shoulder was enlocated.
180 The plaintiff remained out of football for the next six to seven weeks and played a few games at the end of the season. He was able to go back to work and perform his pre-injury work duties.
181 The incident then occurred on the said date when the plaintiff was turning the handle of a winch on a boat trailer and his shoulder dislocated again.
182 Mr Simm noted the treatment leading to surgery in April 2012, with no post-operative complications.
183 After rehabilitation, the plaintiff returned to work about three months later, initially on light duties, then normal duties. He had no significant symptoms in the early stages after that operation, but then developed symptoms of recurrent shoulder instability. He suffered a full dislocation at football training when he simply dropped the ball to kick it in May 2013, and he went to Mildura Base Hospital to have his shoulder enlocated under anaesthesia. He had numerous other episodes where the shoulder would sublux or dislocate when he was putting on a jumper, doing high fives, or lying a certain way in bed.
184 Despite the fact he had had a dislocation at football training, there was some talk about the plaintiff becoming a professional player for the club, and he did try and play one more game. His shoulder felt insecure and he did not play again.
185 Thereafter, the plaintiff had thirty or forty different episodes of subluxation or dislocation. He sought further specialist treatment, and ultimately had surgery in January 2016.
186 That surgery involved transfer of the coracoid process with the attached muscles to the anterior inferior glenoid, where the transferred bone was held with two bone screws. At operation, it was noted the previous surgery to the anterior labrum had been undertaken, but there was significant glenoid bone loss in the region of the plaintiff shoulder, which was presumably contributing to recurrent dislocation. Post-operatively, the plaintiff’s clinical course was uneventful. After rehabilitation, he regained reasonable movement, but his shoulder had always been slightly restricted in the range of movements since that operation.
187 When the plaintiff completed his apprenticeship with the defendant, there was a meeting regarding his further employment and it was decided, because of the problems he was having with his shoulder, he would not be offered a further contract. He had since had a number of jobs and was working prior to the second surgery. He had subsequently obtained his current job as an automatic door technician.
188 The plaintiff regretted the defendant did not re-employ him, as he really enjoyed building boats for that company. He believed he could probably do the work in his current condition, but he may have some difficulty with sustained overhead work. He had not tried to play football since, but had been involved in the club and done some limited coaching. He was on no active treatment and took the occasional sleeping tablet.
189 The plaintiff’s right shoulder aches in bed and in the cold. The aching sensation is over the front and back of the shoulder. He is aware of limited movement in all directions, but has no symptoms of instability. There have been no further episodes of dislocation since the most recent operation. He has not attempted to throw with his right hand, as he is a little apprehensive about injuring his shoulder. He has no difficulty with daily activities.
190 On examination, the plaintiff presented in a straightforward manner with no elaboration of physical signs. There was no wasting of his shoulder, movements were restricted in all directions, and there was discomfort with extremes of movement.
191 Mr Simm noted a general restriction of shoulder movement, particularly external rotation consistent with the anticipated outcome of the most recent surgery. There were no clinical signs of residual instability.
192 Mr Simm stated the diagnosis was originally a traumatic anterior dislocation of the shoulder as a result of playing football. The dislocation was associated with structural damage, which included detachment of the anterior glenoid labrum.[44] This rendered the shoulder vulnerable to further dislocations, and a second occurred in the incident. This may have caused some further damage, although there were no further significant incidents leading up to the plaintiff having the first of two shoulder operations.
[44]This is the finding on the February 2012 MRI scan following the work incident
193 Mr Simm considered the first operation was entirely reasonable and involved an arthroscopic re-attachment at the anterior glenoid and a capsular shift procedure. He noted the anticipated outcome of this procedure would restore shoulder stability; however, there was a failure rate associated with arthroscopic stabilisation. In this case, failure may have been due to a small glenoid bone defect which led to the plaintiff having a more definitive shoulder stabilisation procedure which was the Latarjet procedure, which is an effective salvage procedure when the initial stabilisation operation fails.
194 Prior to the incident, diagnosis was an isolated right anterior shoulder dislocation. Mr Simm noted some patients treated conservatively do not have a further dislocation. Usually, in high levels of sport, one shoulder dislocation with labral detachment is sufficient to recommend surgical stabilisation to prevent further dislocations. In this case, it was probably not unreasonable to treat the plaintiff conservatively initially. When he had the second dislocation in the incident, the diagnosis changed to recurrent right anterior shoulder dislocation, confirming there was joint instability which needed to be addressed.
195 In Mr Simm’s view, the first dislocation at football caused the structural damage which led to recurrent dislocation and the subsequent surgical management of that condition. The structural damage predisposed the plaintiff to suffer any further anterior shoulder dislocation. This may have occurred out of the workplace, such as playing football again. It is a matter of record that the recurrent dislocation, which became the indication for surgical intervention, occurred at work.
196 Mr Simm thought the prognosis was for the plaintiff’s condition to persist as described, and he did not need further treatment. He considered there was a mild to moderate loss of function and impairment of the right shoulder due to the factors discussed above.
Overview
197 There is no dispute the plaintiff suffered a dislocation of his right shoulder in the incident. His initial claim was accepted and ultimately, WorkCover funded the second surgery.
198 Counsel for the plaintiff submitted there was a serious aggravation of the plaintiff’s shoulder condition in the incident. After the football dislocation, there was a degree of instability but no dislocations. Thereafter, there was a very serious event which took place while winching a boat full of water out of the river.[45]
[45]T1
199 As a result of the incident injury, the plaintiff has described permanent restrictions in his physical capacity, a loss of his sporting activities and he has had to take medication to sleep.[46]
[46]T46
200 Counsel for the defendant submitted causation was in issue, relying on the views of Mr Shannon and Mr Simm in this regard.[47] Essentially, it was submitted the incident dislocation was likely to happen regardless of the incident, and that counsel for the plaintiff was, in effect, acting as an expert, commenting on the load involved in the incident.[48]
[47]T2
[48]T3
201 Counsel for the defendant also submitted this is a range case and that there had been an excellent outcome from the second surgery and no lasting consequences that meet the statutory test. When considering the plaintiff’s shoulder in the range of possible impairments, it was submitted it simply does not meet the statutory threshold.[49] It is a situation of intermittent pain with no medication and no treatment.[50]
[49]T31
[50]T29; see also Maxwell P’s comments in Haden Engineering v McKinnon (supra) at paragraph [11]
202 Further, reliance was placed on Dr Le Leu’s identification of a family history of shoulder dislocation and his view any present consequences are minor.[51]
[51]T3
Causation
203 Counsel for the defendant relied on Mr Simm’s view that structural damage was caused in the first dislocation, which it was submitted was a very significant injury which put the plaintiff at risk.[52] The traumatic anterior dislocation of the shoulder on this occasion included detachment of the anterior glenoid labrum.[53]
[52]T29
[53]T35, Mr Simm’s report
204 It was submitted that, really, the plaintiff’s ongoing problems were as a result of the first dislocation at football. It was conceded Mr Simm does accept, however, the incident injury “may” have caused some further damage to the plaintiff’s shoulder.[54]
[54]T35
205 It was submitted the incident was a manifestation of the vulnerability to which the plaintiff was predisposed. The dislocation was going to happen anyway.[55]
[55]T37
206 In those circumstances, it was submitted the onus was on the plaintiff to produce evidence that the work incident caused further damage, but for which the further dislocations would not have occurred.[56]
[56]T38
207 Counsel for the defendant also relied on Mr Shannon’s view that an activity like winching would not normally impose sufficient stress to cause dislocation. It was submitted the primary cause, on Mr Shannon’s analysis, related to the first dislocation at football.[57]
[57]T36
208 Counsel for the plaintiff’s main submission was based on the volume of dislocations when the plaintiff started to get a bit more active in May 2013 which it was submitted was a reflection of the extended insult that occurred when trying to winch a boat half full of water out of the river.[58]
[58]T42
209 Counsel for the plaintiff also submitted the plaintiff’s version of the incident – engaged in a heavy, dangerous and difficult task – was not challenged.[59] Dr Gardiner described the incident as a significant traction rotation injury to the right shoulder.[60] Dr Elder described a significant injury with the hand winch.[61] Dr Nimon thought the plaintiff sustained a significant traction rotation injury and sustained an anterior dislocation of the shoulder in the incident.
[59]T42
[60]T42
[61]T43
210 Mr Gardiner considered the plaintiff’s shoulder had obviously never fully stabilised by the first surgery and therefore ongoing dislocations and the need for further surgery thereafter was a continuing complication of the incident injury.
211 Further, Dr Elder stated the plaintiff has ongoing right shoulder dysfunction relevant to the original injury (the incident) treated surgically. He thought there was insufficient data and information on which to assess any pre-existing impairment, and on re-examination, he once again remained of the view all of the plaintiff’s impairment related to the incident injury.
212 When considering the issue of causation, it is important to examine the evidence upon which Mr Simm based his conclusion and upon which the defendant relies.
213 Mr Simm thought the first dislocation meant the plaintiff’s shoulder was vulnerable to a recurrent dislocation prior to the incident injury. This view was based on the what Mr Simm described as structural damage that occurred from the first dislocation which predisposed the plaintiff to further dislocations
214 However, it seems the only investigation conducted following the 2011 football injury was an x-ray of the right shoulder post relocation dated 7 May 2011 (predates the work incident) noted by Mr Simm in the list of documents made available to him.
215 There is no report of this x-ray available nor specific mention of it in Mr Simm’s report. Mr Simm simply stated that the traumatic anterior dislocation as a result of playing football in 2011 was associated with structural damage which included detachment of the anterior glenoid labrum.
216 The only evidence of this finding of detachment was in the February 2012 MRI scan carried out after the incident, organised by Mr Gardiner, who advised the plaintiff’s general practitioner that the MRI scan had a report on his disc which stated the plaintiff had a lesion and a significant labral tear. Mr Gardiner thought that fitted well with the recurrent anterior dislocation, and understood the plaintiff was waiting to gain acceptance of his claim.
217 In the absence of any explanation by Mr Simm as to how he linked these more significant findings to the first dislocation at football, I accept it is more likely this labral damage resulted from the more significant trauma in the incident rather than the football dislocation following which the plaintiff did not require surgery.
218 Save for his comments about the incident circumstances, Mr Shannon provided no path of reasoning as to how he concluded the first dislocation was more significant than that suffered in the incident.
219 If I am wrong in my finding in this regard, in any event, I accept the submission by counsel for the plaintiff that to attribute everything to the first dislocation at football was not tenable because it ignored the history that not until after the insult with the incident, the dislocations started occurring on a regular basis. The defendant’s submission also ignored the mechanism of the incident injury, which was such that the plaintiff described himself as using two hands on a boat half full of water which, it was submitted, was a very significant insult.[62]
[62]T43
220 In my view, injury in the incident was not a matter of coincidence, as counsel for the defendant submitted.[63]
[63]T34
221 As counsel for the plaintiff submitted, whilst clearly there is a vulnerability, a further shoulder dislocation might never happen again, as Mr Simm said. The incident “caused the bulk of the problem”.[64] In any event, Mr Simm did consider the incident dislocation became the indication for surgical intervention.
[64]T44
222 Further, I do not accept Dr Le Leu’s view that there was a family predisposition to recurrent shoulder dislocations. As counsel for the plaintiff submitted, that practitioner expressed this opinion in the absence of any detailed family history of such a problem and without any explanation of his view.[65]
[65]T42
223 I am satisfied that the plaintiff suffered a labral tear in the incident which required surgery in 2016 and has ongoing consequences as at the date of hearing.
224 Further, as this is an aggravation case, it is necessary to identify any impairment from the football injury and the incident, as the Court directed in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz[66] and be satisfied that any incident related aggravation is serious.[67]
[66](2012) 34 VR 309
[67]T39
225 As stated in Bezzina v Phi & Anor,[68] when examining the consequences of the claimed serious injury, the Court was bound to look at how they affected the applicant as he was, and would likely have been, absent the injuries he sustained in the accident. That included looking at and considering the effect and likely effects in the future of the applicant’s previous injuries.[69]
[68][2012] VSCA 161 at paragraph [23]
[69]T36
226 I am satisfied, in all the circumstances of this case, the aggravation of the plaintiff’s condition as a result of the incident injury is “serious”.
227 The next dislocation following the first dislocation was the incident injury, nine months later.
228 As noted above, significantly, the dislocations following the incident became much more frequent, leading to surgery in 2016, on multiple occasions caused by activities as simple as putting on a jumper or giving a high five.
229 Following the first dislocation, the plaintiff had limited treatment in the form of physiotherapy.
230 Save for a few weeks off work after the first dislocation, there is no suggestion the plaintiff had ongoing difficulties with his work with the defendant, before the incident occurred.
231 The plaintiff was able to return to playing two games of football without further injury in late 2011.
232 Whilst being aware of some discomfort sleeping, until after the incident, the plaintiff did not experience dislocations simply whilst lying in bed a certain way.
Credit
233 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[70]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[70](2010) 31 VR 1 at paragraph [12]
234 I accept, as counsel for the plaintiff submitted, the plaintiff was described by everyone as an essentially candid and straightforward historian. There was no evidence of exaggeration, and he had got on with his life and done the best he could.[71]
[71]T45
235 Further, whilst there was surveillance undertaken of the plaintiff, no film was shown during the hearing.[72]
[72]T41
Pain
236 The evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says bout the pain (both in court and to doctors).[73]
[73]See Maxwell P in Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [11]
237 Whilst the plaintiff acknowledges there has been some improvement in his right shoulder pain since the second surgery, he continues to experience a dull aching pain mainly around the front part of his shoulder, most of the time. He is slow to get going in the morning and when he elevates his right arm there is a dead sport of feeling. Overhead activity particularly aggravates his shoulder and his range of motion remains limited.
238 Whilst reporting no pain to Dr Le Leu in April 2016, and a bit of pain to Dr Elder in 2017, more recently, the plaintiff has described ongoing pain and limitations to examiners in 2018.
239 On examination, the plaintiff complained to Mr Simm of aching and limited movement. The plaintiff told Mr Shannon he felt okay although he had limited movement and a bit of discomfort, particularly in cold weather. He told Mr Grossbard of pain in the front of his right shoulder, present intermittently and more noticeable in cold weather, usually mild but could get up to 4 to 5 out of 10. There were also problems with overhead activity and a dead aching feeling in his right arm.
240 Although counsel for the defendant submitted there was now little wrong with the plaintiff’s right shoulder,[74] recent medico-legal examiners consistently found restrictions on examination similar to those demonstrated by the plaintiff in the witness box.
[74]T26-27
241 Mr Simm considered there was a mild to moderate loss of function and impairment of the right shoulder and general restriction of shoulder movement, with a 50 per cent loss of external rotation on the right.[75]
[75]T45
242 Mr Shannon found a stable shoulder with limited movement.
243 Mr Grossbard also found there was a loss of shoulder motion and some ongoing discomfort, particularly after activity.
244 Somewhat optimistically, Dr Le Leu, in April 2016, thought the plaintiff should have recovered completely with two further months of physiotherapy.
245 In February 2017, Dr Elder simply stated the plaintiff has ongoing right shoulder dysfunction relevant to the original injury treated surgically.
Treatment
246 The plaintiff was initially treated conservatively after the incident with physiotherapy. Surgery was then performed in April 2012. Thereafter, he had further physiotherapy; however, his shoulder continued to dislocate and at times he needed further medication, including Mobic. The insurer finally agreed to pay for the more extensive second surgery, which took place in January 2016. Following that procedure, the plaintiff had further physiotherapy and required painkilling medication.
247 The only medication the plaintiff takes at present is sleeping tablets, prescribed by Dr Clair at Tristar.[76]
[76]T28
248 Whilst the treating surgeon, Dr Leonello, had some thoughts about the need for further surgery in the event of post-traumatic osteoarthritis, Mr Grossbard thought this was unlikely.[77]
[77]T46
249 I accept that as a result of the incident injury, the plaintiff’s right shoulder movements are restricted and he has a particular difficulty with overhead movements and heavy lifting with his dominant right arm.
250 The plaintiff is still a young man, now aged only twenty-six. Compared to his active pre-injury life, his recreational activities are now significantly limited by his shoulder injury.
251 I accept that the plaintiff’s right shoulder pain and restrictions are permanent, having continued for over six years despite two operations and other treatment.
252 In Stijepic v One Force Group Aust Pty Ltd,[78] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[78][2009] VSCA 181 at paragraph [43]
253 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty 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.
254 The plaintiff can still do a range of things, as Dr Le Leu described but he has ongoing mild pain. Movement of his right arm is restricted particularly in overhead activities.
255 Since the incident, the plaintiff has been restricted in the amount of heavy, physical work he can undertake. Having completed his apprenticeship in his chosen field, he was seen by the defendant to be a liability post incident and not offered further work. He regretted the defendant did not re-employ him, as he really enjoyed building boats for that company. He has lost his trade, not being offered further work with the defendant, as Mr Simm and Mr Shannon confirmed.[79]
[79]T46
256 Further, the plaintiff has not been able to explore work in the mines which he had contemplated, as he deposed.
257 The plaintiff is able to cope with his current job that is lighter, not requiring the use of heavy tools; however, he does have pain after work most days. As Mr Grossbard confirmed, the plaintiff would have difficulty because of his shoulder returning to the full range of heavier tasks, lifting and working above shoulder height, jobs he performed with the defendant.[80]
[80]T44
258 The plaintiff has to take care when working not to re-injure his arm. This has been the case for some years, with Dr Le Leu confirming this was the situation in mid 2016.
259 Save for the attempts at football during 2013 when he suffered further dislocations, the plaintiff has been unable to resume playing football, the sport he loved which gave him great satisfaction and a sense of community involvement.
260 Whilst the plaintiff has played squash since the incident, he does not hit the ball hard and is not confident doing so. He cannot throw a ball and he has not gone back to cricket other than the charity match.[81]
[81]T44
261 The plaintiff can no longer water-ski because of the pressure that activity would place on his shoulder. He sold his boat and bought a fishing boat. His friends have to operate the winch when they go out fishing. The plaintiff had to sell his motorbike and has not resumed dirt bike riding since the incident.
262 In my view, it is totally reasonable, in light of his shoulder injury, for the plaintiff to be wary of returning to sporting and recreational activities which would put his shoulder at risk.
263 The plaintiff still has problems sleeping due to shoulder pain and has only taken sleeping tablets in relation thereto since the incident.
264 There is no suggestion that the plaintiff right shoulder condition is likely to improve.
265 Taking into account all the evidence, I am satisfied that the aggravation of the plaintiff’s right shoulder condition in the incident is “serious” and has permanent consequences for the plaintiff.
266 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
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