Graham v In Vitro Technologies Pty Ltd
[2019] VCC 1763
•26 November 2019
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-02122
| RUSSELL GRAHAM | Plaintiff |
| v | |
| IN VITRO TECHNOLOGIES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 October 2019 | |
DATE OF JUDGMENT: | 26 November 2019 | |
CASE MAY BE CITED AS: | Graham v In Vitro Technologies Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1763 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the right shoulder – pain and suffering - whether consequences serious
Legislation cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P A Johnstone | Shine Lawyers |
| For the Defendant | Mr S A Smith QC with Ms M Tsikaris | Russell Kennedy |
HIS HONOUR:
1 This is an application brought by Mr Russell Graham pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). Mr Graham suffered an injury to his right arm on 18 November 2013 while working for In Vitro Technologies Pty Ltd.[1] Prior to this right shoulder injury, he had suffered another injury to his right shoulder and back.[2] After the 18 November 2013 injury, he suffered further injuries to his right forearm, right knee and also left knee.[3]
[1]Plaintiff’s Court Book (“PCB”) 11 Exhibit P1, affidavit of Russell James Graham, sworn 21 November 2018
[2]PCB 10-11
[3]PCB 12, 5
2 The question that arises for determination in this case is whether the pain and suffering consequences resulting from the 18 November 2013 injury to the right shoulder are serious. In order to make that determination, I must first make findings about all of the pain and suffering consequences which are operative at the date of the trial. This is a precondition of the task of deciding which of the pain and suffering consequences are attributable to which injury.[4]
[4]Peak Engineering & Anor v McKenzie [2014] VSCA 67 [24] (“Peak Engineering”)
3 Issues of credit play a role in determining which of the pain and suffering consequences Mr Graham alleges are attributable to which injury.
4 In this case, there is no issue that Mr Graham suffered an injury to the right shoulder in the course of his employment on 18 November 2013. Although Mr Smith, who appeared with Ms Tsikaris for the defendant, submitted there was no physiological change to the state of Mr Graham’s right shoulder after the 18 November 2013 incident,[5] the defendant, in this case, really proceeded on the basis that the consequences of any injury to the right shoulder did not meet the requisite level of being serious.[6]
What are the pain and suffering consequences that the Plaintiff currently suffers by reason of all his injuries?
[5]Transcript (“T”) 54-55
[6]T67
5 I have broken up my consideration into the areas in which the Plaintiff sought to demonstrate that the pain and suffering consequences were serious.
(i) Cycling
6 Mr Graham gave evidence that he had experienced lower back pain on and off for many years and certainly preceding the November 2013 incident.[7] In 2016, he experienced worsening lower back pain during the course of moving home and attempting to ride in a cycling road race.[8] After that time, he did not cycle again. The notes of Dr Richardson at the WRAD Centre, where he was seen at that time, reveal that the reason for him ceasing cycling appears to have been lower back pain and had nothing to do with his right shoulder.[9] The notes of the clinic are significant for the fact that they do not refer to right shoulder pain being the cause of Mr Graham being unable to cycle. Mr Graham disputed this in evidence.[10] I found it very useful to see Mr Graham give his evidence. At times, his attention had to be directed to answering the questions which were put. When cross-examined about why he did not mention the right shoulder causing problems with riding to Dr Richardson on 17 August 2016 he seemed to intimate that he had told her (or other doctors), but she had simply not written it down, or he had informed other doctors.[11] I did not find those answers convincing. I prefer the notes of Dr Richardson, and the history which seems to suggest that after the November 2013 incident Mr Graham continued riding until August 2016, when lower back pain caused him to cease cycling.[12] His evidence was that, thereafter, he has not cycled by reason of his right shoulder injury.[13] This may in part be due to the fact that his lower back pain was very significant. A back disability pain questionnaire was tendered, dated 12 August 2016.[14] It noted that the pain, at that time, significantly affected Mr Graham from lifting any heavy weights off the floor or walking for more than 1 kilometre. It also shows that the back pain was of such severity as to affect most activities of daily living.[15]
[7]T34
[8]T26 Line (“L”)29
[9]Defendant’s Court Book (“DCB”) 14, T29, L8
[10]T29, L14 and also in his affidavit evidence at PCB 15
[11]T28. No contemporaneous notes were produced by the plaintiff to support this assertion.
[12]DCB 14
[13]At T26, L14-21, Mr Graham gave evidence that he last cycled in about 2015, however it is obvious that he continued to cycle, given the note of Dr Richardson, up to 17 August 2016. I take his evidence to be that he ceased cycling at this time.
[14]DCB 18-19
[15]DCB 18-19
7 Overall, I consider that Mr Graham ceased cycling as a result of lower back pain rather than right shoulder pain. I find that his right shoulder injury did not have the consequence of him ceasing to ride.
(ii) Golf and tennis
8 Mr Graham gave evidence that his pursuit of golf and tennis was restricted by reason of the right shoulder injury.[16] At present, he does not play golf or tennis. Prior to the November 2013 incident, he played both golf and tennis regularly. [17] These were particular sporting and social pursuits which gave him much enjoyment. His case is that these two pursuits have been denied to him by reason of the right shoulder injury.[18] While I find that these were important parts of his life, I do not find that they have been denied to him by reason of his right shoulder injury. This is particularly because of the severity of his knee injuries. I find that his knee injuries had a very significant effect in denying Mr Graham both his tennis and golfing pursuits. This makes it extremely difficult to assess exactly what role the right shoulder injury had in causing the loss of both golf and tennis. Although Mr Graham was adamant that it was the right shoulder that denied him golf and tennis, his evidence on this point was inconsistent. In his affidavit, sworn 21 November 2018, at paragraph 15, he noted that he often had an ache in his right knee which increased if he was on his feet for too long, and it sometimes gave way.[19] This is supported in the history taken by Mr John O’Brien, dated 7 February 2018.[20] In this history, Mr Graham specifically noted that in mid-2017 he had an increase in his right knee pain for which he had physiotherapy.
[16]PCB 14
[17]PCB 14-15
[18]PCB 14-15
[19]PCB 12
[20]PCB 38
9 In evidence, he admitted, under cross-examination, that golf required him to be on his feet for around four hours, doing a lot of walking.[21] Further, he accepted that tennis required sudden changes of direction which might involve twisting.[22] It seems clear that he could not be on his feet playing golf, as it would increase his right knee pain, nor could he play tennis, as it required twisting, which would risk further structural damage to his knees.
[21]T7
[22]T7, L6-18
10 When looked at together, it seems clear that Mr Graham could not play golf or tennis by reason of his leg injuries. There is a paucity of evidence on which to make findings as to the extent the right shoulder injury precludes Mr Graham pursuing golf and tennis.
11 Mr Graham attempted, in the course of cross-examination, to explain that his right knee injury had improved over the course of the last year, such that it did not stop him playing tennis.[23] However that was the first time that he had given evidence of any improvement in his right knee condition. I do not accept his evidence on this point. First, there was no treating doctor’s report or note to that effect. Secondly, there was no medico-legal report to that effect. Thirdly, despite two affidavits filed in the course of the last eighteen months, there was, similarly, no reference to an improvement.[24] During cross-examination, Mr Graham could not adequately explain his alleged improvement. I find consistently with the medical evidence, and in accordance with Mr Graham’s first affidavit that the right knee injury was a very significant problem, requiring surgery, with ongoing physical effects, and impacted on his ability to play golf and tennis. I find that this impact was significant. It had a much larger impact on his ability to play golf and tennis than his right shoulder injury. In making this assessment, I treat with caution the evidence of Mr Graham, and prefer the clinical evidence.
[23]T9, L5
[24]PCB 4-15
12 Further, I find that the left knee injury, which was the subject of surgery and was said by his surgeon to forebode a total knee replacement, also had a significant effect.[25] Mr Graham accepted that his left knee condition was worse than his right knee.[26]
[25]DCB 22
[26]T13, L13
13 Mr Graham sought to deny that his surgeon had discussed with him the possibility of a total left knee replacement.[27] The possibility of such a replacement was raised at the time of surgery to the left knee on 1 November 2018.[28] It is also noted in Mr Kunle Arogundade’s letter to Mr Graham’s treating doctor on 1 November 2018, and again in a consultation record of the specialist dated 14 December 2018.[29] On direct questioning during cross-examination, Mr Graham denied knowledge of there being a possibility of a total knee replacement.[30] I find, given the notes of the specialist, that this is unlikely. This failure to acknowledge the severity of the left knee condition leads me to conclude that Mr Graham was seeking to downplay the impact of the left knee injury in order to bolster the impact of the right shoulder injury. It made it difficult to isolate and determine what pain and suffering consequences were attributable to each injury. Given the somewhat confused nature of the evidence, I was only able to determine that the left knee injury played a significant role in Mr Graham’s inability to play golf and tennis. Mr Graham freely admitted that his left knee was worse than his right knee.
[27]T11-12
[28]DCB 21
[29]DCB 22, 18
[30]T11, 27
14 I find that this left knee condition was such as to severely impact on Mr Graham’s ability to play golf and tennis, contrary to his assertions.
15 I find that, in combination, the knee injuries deprived Mr Graham of his ability to play golf and tennis. I find the impact of the knee injuries was far greater in depriving Mr Graham of these pursuits than his right shoulder injury.
(iii) Fishing
16 Mr Graham also asserted that other recreational pursuits were denied to him by reason of his right shoulder injury. The main amongst these was that he could no longer fish as he used to. In his first affidavit, he deposed that he used to enjoy fishing a lot and now can only do it less often and for short periods of time.[31] When pressed on this, it appears that Mr Graham could in fact continue fishing using his left hand undercasting off the pier.[32] What was mainly impacted was the ability to do surf fishing, which he would previously do some three to four times a year.[33] Leaving aside the ability to go onto the beach, either on rock or soft sand, with his knee injuries, I find that this is a modest impact that the right shoulder injury has had upon his recreational activities.
[31]PCB 14 at paragraph [20]
[32]T46-47
[33]T48, L4
(iv) Gardening
17 Mr Graham also deposed that his ability to perform gardening work is also impacted by the right shoulder injury.[34] As has been set out above, however, Mr Graham’s back injury prevents him from lifting heavy weights off the ground. In the course of cross-examination, he gave evidence that over the weekend prior to the trial, he experienced back pain even doing light gardening work. He admitted that weights of even 1-2 kilograms cause him back problems.[35] While it could be accepted that Mr Graham has difficulties with gardening and house work which require the use of the right shoulder, it also appears that his back injury plays a significant role in limiting these activities. While he deposes that his right shoulder injury prevents him freely raking sweeping and digging,[36] given the evidence I have accepted as to the impact of his leg injuries and back injuries, I am unable to determine exactly what consequences the right shoulder injury has in preventing gardening or domestic tasks.
[34]PCB 13-14
[35]T35-36
[36]PCB 14
18 When considering what Mr Graham has lost, it is also necessary to consider what he has retained. To this end, I do note that he remains (and has always) remained in employment, and now works in an essentially administrative role full time.[37] He is required to drive some distances, but says that he takes breaks each hour during these drives, primarily to stretch and relieve knee pain.[38] He takes only occasional over-the-counter medication, such as Nurofen.[39] In fact, the only time he has taken anything stronger, was for his back pain, for which he was prescribed Lyrica in 2016.[40] He does note that he could play golf for less than eighteen holes, indicating that not all sporting pastimes are beyond him and, as noted, he retains the ability to do pier fishing.[41]
[37]PCB 6, 13
[38]T18, L5
[39]T32, PCB 13
[40]DCB 13
[41]PCB 14 at paragraph [22]
19 While he deposes to having right shoulder pain that affects his sleep, he does not depose to the extent or duration of the pain. I find it difficult to analyse and make findings about the effect to which the pain associated with the right shoulder injury impacts his daily life.
20 Answering the question as to what are the pain and suffering consequences of the right shoulder injury when isolated from all of the pain and suffering consequences operative at the date of trial as required in Peak Engineering,[42] I find that I am unable to make that determination.[43] This is because of the:
(a)consequences of the pre-existing back condition, with subsequent significant flare-ups which affect activities such as cycling, and severely impact gardening;
(b) injury to the right knee which has required surgery and medication. That causes ongoing pain, swelling, limitation of movement and impacts on golf and tennis;
(c)the injury to the left knee, which has required surgery and medication, and will, in due course, result in a total knee replacement. It is admitted by Mr Graham that this condition is worse than the right knee condition.[44] I find it prevents him from playing golf or tennis; and
(d)the lack of detailed medical evidence as to the exact pathophysiological change to the right shoulder occasioned by the work injury, such that there is no ongoing treatment with medication, surgery or therapy.
[42]at paragraph [24]
[43]Peak Engineering & Anor v McKenzie (supra) at paragraph [24]
[44]T 11-12
21 As Mr Graham bears the onus of proof, on the balance of probabilities, I am unable to find that he has made out his case. There will be judgment for the defendant.
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