Halpin v Wilson Transformer Company Pty Ltd
[2011] VCC 1513
•29 November 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WODONGA
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-01365
| PATRICIA BERNICE HALPIN | Plaintiff |
| v | |
| WILSON TRANSFORMER COMPANY PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Wodonga |
| DATE OF HEARING: | 25 October and 2 and 3 November 2011 |
| DATE OF JUDGMENT: | 29 November 2011 |
| CASE MAY BE CITED AS: | Halpin v Wilson Transformer Company Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1513 |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION – Damages
CATCHWORDS – Serious injury – impairment to the right shoulder.
LEGISLATION CITED – Accident Compensation Act 1985, s.134AB.
CASES CITED –Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 – Haden
Engineering Pty Ltd v McKinnon [2010] VSCA 69 – Transport Accident Commission &
O’Dea v Dennis [1998] 1 VR 70.
JUDGMENT – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Monti with | Nevin Lenne & Gross |
| Mr G Pierorazio and Mr R Morrow | ||
| For the Defendant | Mr R Middleton SC with | Wisewould Mahony |
| Ms J Forbes | ||
| HER HONOUR: |
1 This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment with the defendant on 24 February 2009.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the right shoulder.
6 The plaintiff relied upon two affidavits, sworn 12 October 2010 and 26 September 2011. The plaintiff and Mr Kolt were cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[1] “Serious injury” for the purposes of s.134AB(16) and (19) is defined by s.134AB(38).
[1] S.134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities
that:
(a)
“the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendant after 20 October 1999.[2]
(b)
the impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.[3]
(c) under s.134AB(38)(b) of the Act, the term “serious” is to be: [2] S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[3] Barwon Spinners (op cit) at paragraph [33]
“… satisfied by reference to the consequences to the worker of
any impairment or loss of a body function … with respect to—
(i) pain and suffering; …
when judged by comparison with other cases in the range of
possible impairments or losses of a body function … .”
(d)
under s.134AB(38)(c) of the Act: an impairment or loss of body function, in this case, the pain and suffering, shall not be held to be serious unless the consequences, when judged by comparison with other cases, is:
“… fairly described as being more than significant or marked, and
as being at least very considerable.”
9 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
10 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[4]
“The emphasis in s 134AB(38)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[5]
[4] [2009] VSCA 181
[5] ibid at [42]
11 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent,
by what has been retained.”[6]
[6] Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [44]
12 The test for “serious”, as set out in paragraphs (b) and (c) of s.134AB(38) of the Act, is sometimes referred to as the “narrative test”.
13 In determining the application, the Court:
(a)
must make the assessment of “serious injury” at the time the application is heard.[7]
(b)
notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[8]
[7] S.134AB(38)(j) of the Act
[8] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The Issue
14 Counsel for the defendant informed the Court that this is a “range case”, namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range.
The Plaintiff’s Evidence
15 In her affidavits sworn on 12 October 2010 and 26 September 2011 the plaintiff deposes that:
•
She has been employed by the defendant for approximately fourteen years.
•
On 24 February 2009, she injured her right shoulder when she tripped and fell on the concrete floor.
•
Following the accident, she was taken to a general practitioner’s clinic, from where she was sent to the Albury Base Hospital.
•
She continues to receive treatment from her general practitioner, who prescribes Tramadol and Panadeine Forte. She consults an orthopaedic surgeon.
•
She received an ultrasound-guided subacromial cortisone injection, which was unsuccessful. She has since undergone an ultrasound- guided right subacromial subdeltoid bursal injection. This treatment resulted in increased pain in her shoulder.
•
She continues to work six hours per day with the defendant, but no longer performs the two to four hours’ overtime per week. She has difficulty with her duties and at the end of her shift her right arm and shoulder are very sore. She is no longer able to participate in multi- skilling activities at work.
•
She continues to have severe pain in her shoulder joint and into the biceps. She has weakness in her grip and the strength of her right hand. She also has a restricted range of movement in her right shoulder, in particular raising her right arm above shoulder height.
•
She has difficulty driving for long periods and repetitive activities make her symptoms worse. She is restricted in her recreational activities, in particular swimming, playing tennis with her granddaughter, gardening, knitting, and walking her dogs. She is also restricted in her domestic tasks, including washing windows, vacuuming, sweeping, mopping and hanging out the washing. Consequently she relies on a cleaner. Her sleep is affected.
•
As a consequence of her restrictions, she is no longer as fit as she previously was and has put on weight.
The Plaintiff’s Evidence in Cross-Examination
16 The plaintiff was cross-examined and gave the following pertinent evidence:
•
Since the injury in February 2009, she has continued to do her normal work.
•
She said the pulling of cables was controlled by an hydraulic foot press most of the time.
•
She had time off work because of her shoulder – she thought twenty-two days – then agreed those days were for different matters.
• She said there had not been much overtime as the business is not busy. • She said multi-skilling was not available to her before 2009. •
She said she was prescribed medication by her general practitioner, including Tramadol. She agreed that in 2009, she was taking Tramadol for back pain and not for her shoulder injury.
•
She agreed that she was prescribed Panadeine Forte for an unrelated matter and ceased taking Panadeine Forte because of side-effects.
•
She agreed she was not referred to Mr Kolt until eighteen months after the fall.
•
She said she has always had pain; it has not changed since 2009. It became worse after she had the injections.
•
She agreed she did not have to do overhead reaching at work. She said the activities outside work involving overhead reaching included hanging the clothes out or washing the windows. She agreed she had not washed the windows for two years but employed someone else to perform that task.
• She said her son takes her dogs for walks. •
She said physiotherapy was not very helpful. She was told that the physiotherapist reported she had achieved a full range of movement and her strength was improving. She said it was a little bit better but there was still pain. She disagreed with the physiotherapist’s comment that she was able to proceed with exercises within pain-free limits.
•
She agreed with Ms Keith’s report that in April 2011, her right shoulder, although symptomatic, was quite functional for most activities of daily living. She said Ms Keith could not guarantee that the operation would fix her arm. She said that Ms Keith’s secretary said the operation would be delayed until after her litigation.
• She agreed that she had not been told by a doctor not to swim. •
She agreed that she had had complications from other surgery. She agreed that she had only had two or three days off work following the initial injury.
17 In re-examination, the plaintiff said:
•
After working six hours, her shoulder was very sore. She takes a tablet before starting work: one in the afternoon (usually Tramadol) and sometimes she takes a tablet before going to bed (usually Panadeine Forte).
•
She consulted Mr Kolt because she needed to know if anything could be done about her shoulder.
•
She stopped washing her windows because of the pain in her arm. She stopped walking the dogs because they had to be on a lead.
•
She did not want to have surgery unless it was life-threatening not to have it.
Investigations
18 On 3 March 2009, an ultrasound of the plaintiff’s right shoulder showed a 1.2-centimetre diameter full thickness tear of the supraspinatus tendon.
19 On 25 June 2010, an ultrasound of the right shoulder showed:
“Findings
At the anterior aspect of the supraspinatus tendon there is a focal highpoechoic defect, measuring 10 x 8 x 4 millimetres extending to the articular surface, in keeping with a focal partial thickness articular sided tear.
Impression
Focal partial thickness articular sided tear of the anterior aspect of the supraspinatus, mild amount of fluid in the subacromial/subdeltoid bursa.”
20 On 16 December 2010, an MRI scan of the right shoulder showed:
“Intrasubstance insertional tear involving the anterior and middle thirds of supraspinatus, extending towards but not through to the bursal surface anteriorly. The tear is complex with a delaminating component extending towards the musculotendinous junction. There is no disruption of the deep articular fibres. Mild subscapularis insertional tendinopathic change, and mild tendinosis of the intra-articular portion of the longhead of biceps.”
21 On 30 August 2011, an MRI of the right shoulder concluded:
“Prominent degenerative changes with at least partial or focal full- thickness supraspinatus tendon tear, acromioclavicular joint osteoarthrosis and mild anterolateral acromial spur formation. Thin and possibly torn biceps tendon. Minor glenohumeral osteoarthrosis.”
The Plaintiff’s Medical Evidence
22 The plaintiff relied upon the following medical reports.
Mr Jeremy Kolt
23 The plaintiff was examined by Mr Jeremy Kolt, orthopaedic surgeon, at the request of her general practitioner in mid-2010. She provided a history of a fall at work onto her right side, resulting in severe pain around the shoulder, radiating to the deltoid. The pain had diminished over time but not completely. She complained of mild shoulder pain when lying on the right side at night and had difficulty with overhead lifting due to pain and lack of endurance. She initially had physiotherapy and had taken oral analgesics. She complained of a catching sensation on abduction.
24 Mr Kolt said that upon examination, the plaintiff had an extremely functional shoulder. He recommended a conservative management program consisting of an ultrasound-guided subacromial cortisone injection and a structured physiotherapy program, aimed at rotator cuff strengthening.
25 On 24 August 2010, Mr Kolt referred the plaintiff to Ms Prue Keith, an orthopaedic surgeon, for consideration of an arthroscopic procedure. He described the plaintiff’s shoulder as –
“… quite functional and all elements of the rotator cuff are generating 5/5
power without pain. Impingement signs have been only mildly positive.“
26 In cross-examination, he said he would not have imposed restrictions on her work as a process worker, activities of daily living or domestic chores. He said he would have recommended that she swim, garden and play tennis within her level of comfort. He said that the symptoms Ms Keith reported after examination were “a little more severe” than the symptoms he obtained on examination. He said the symptoms of the arm dropping implies a more severe symptomatology. He said the recent ultrasound demonstrated a partial thickness articular-sided tear of the supraspinatus. The ultrasound- guided subacromial injection did not relieve the plaintiff’s pain.
Ms Prue Keith
27 In November 2010, Ms Prue Keith examined the plaintiff and reported to Mr Jeremy Kolt. She said the plaintiff had no significant palpable or visible wasting about the right shoulder, she had quite a lot of scapulothoracic dysrhythmia and hitched the shoulder somewhat in elevation, although she did have a near full range of combined active elevation and abduction of the shoulder. She said the plaintiff had some degree of glenohumeral capsular stiffness which was mild, and she had significant irritability of supraspinatus on testing, with only just making a 3/5 power rating. She said the remainder of the cuff appeared to be reasonably normal and there were no cervical signs and no neurological signs. It was her opinion that the plaintiff would benefit from a repeat injection and physiotherapy. She arranged an MRI scan.
28 In December 2010, Ms Keith forwarded a letter to the plaintiff after reviewing the MRI scans of the plaintiff’s shoulder, and said:
“There is no doubt, some evidence of rotator cuff disease through, particularly the supraspinatus tendon, which is one of the elevator tendons of the shoulder and this is an incomplete tear and is often seen as part of rotator cuff tendinopathy, which is part of the aging process, occasionally we can see this also with injury.”
29 Ms Keith recommended conservative management and was reluctant to operate.
30 In January 2011, Ms Keith referred the plaintiff to Health Focus Albury to commence a physiotherapy program, working on range of movement, capsular stretching, scapular stabilisation and some Grade 1 strengthening.
31 In April 2011, Ms Keith reported to Mr Kolt that after the plaintiff had a repeat injection into her shoulder, she suffered a flare-up of symptoms in the shoulder that were quite severe, but when reviewed, the pain had settled. It was Ms Keith’s view that the right shoulder, although symptomatic, was quite functional for most activities of daily living. She said the rotator cuff disease is a pretty chronic condition and the only indication for surgery would be if the plaintiff is unable to manage it conservatively.
32 In June 2011, Ms Keith reported to Mr Kolt that the plaintiff had raised further questions about surgery. Her advice to the plaintiff was that surgery should only be performed if she had significant pain and her activities of living were impaired. She warned the plaintiff that any procedure would potentially involve a reasonably long rehabilitation program.
Mr Scott Waddle
33 In April 2011, Mr Scott Waddle, physiotherapist from the Health Focus Group, reported to Ms Keith that the plaintiff had been treated with soft-tissue techniques and was given scapular rhythm exercises to improve joint positioning and proprioception. He said she had responded well to the program. Further rehabilitation was required and that she had nearly achieved a full range of motion and her strength was improving with time.
Mr Kenneth Brearley
34 On 27 July 2011, the plaintiff was referred to Mr Kenneth Brearley, orthopaedic surgeon, at the request of the plaintiff’s solicitor. Mr Brearley noted that she was continuing to do her normal work. The plaintiff told Mr Brearley that she had been advised to have an operation, which would probably be carried out within the next month or two. She complained of constant pain of variable intensity in the shoulder. The pain was made worse by repetitive use of the arm and by attempts at lifting and working above shoulder height, which she avoided. She was unable to lie on the right side.
35 The plaintiff complained of having difficulty with heavier aspects of her housework, such as vacuuming, sweeping and mopping. She said she could not hang out the clothes and clean the windows. She was unable to do any gardening, including mowing the lawns.
36 Mr Brearley said that the plaintiff had suffered a tear of the supraspinatus portion of the rotator cuff of the right shoulder with associated subacromial bursitis. He accepted the injury was work-related and said she had suffered a permanent impairment and permanent loss of function of her right shoulder as a result of the injury. He accepted that her domestic activities had been disturbed. He said she had difficulty shopping as she cannot carry the bags and recreationally she was unable to walk her large dogs as she cannot hold the lead. She said she no longer went swimming. It was his view these incapacities will continue for the foreseeable future.
37 In relation to her work, Mr Brearley said the plaintiff had marked limitation in the use of her right arm as a result of the shoulder injury. She could not work above shoulder height nor lift heavy objects and that manual labour in general was not possible. He commented on her extraordinary motivation for work and her work ethic. He said the prognosis was reasonably good, because of her most admirable attitude. He believed if she lost her present position she would not be able to find alternative work because of her age, her limited work experience and her ongoing disability.
Mr John F O’Bryan
38 On 27 July 2011, the plaintiff was medically examined by Mr John F O’Bryan, orthopaedic surgeon, at the request of the plaintiff’s solicitor. He said the plaintiff described constant shoulder pain which failed to respond to conservative treatment and she displayed signs suggestive of rotator cuff tendinopathy with some evidence of impingement. He said that the investigations confirmed a partial tear of the supraspinatus tendon with evidence of tendinopathy. It was his opinion that her condition was stable. He said that the problem had not responded to conservative treatment and he thought there was satisfactory indication for surgery. He said with ongoing conservative treatment, the plaintiff’s prognosis was poor. He was aware that the plaintiff was able to continue with her employment which she told him was due to the relatively light nature of her duties. He said the plaintiff was limited in relation to her general, social, domestic and recreational activities which he thought was a permanent situation. He said she will continue to require home help to undertake the heavy domestic tasks.
The Defendant’s Medical Evidence
39 The defendant relied upon the following evidence.
Mr Michael Shannon
40 In October 2011, the plaintiff was medically examined by Mr Michael Shannon, orthopaedic surgeon, at the request of the defendant’s solicitors.
41 It was his opinion that she was suffering from a pre-existing rotator cuff degeneration, but described no symptoms in her shoulder until a fall at work, which he said could well have resulted in a partial or full-thickness tear of the supraspinatus. He said she had consistent evidence on scans of bicipital tendonitis and clinically she had a rupture of the longhead of the biceps. He said she had ongoing restriction of movement of her shoulder and she had pre-existing minor degenerative change in the shoulder and acromioclavicular joint. He said that her predominant problems were in the rotator cuff and she had ongoing pain, restriction of movement and impingement. He said her complaints were consistent with the pathology described and the nature of the injury. She reported a second fall at work, which he said would have aggravated the underlying condition, but her shoulder was not significantly different following the second fall. He said she would have difficulty if she was asked to perform work involving strenuous repetitive use of the right arm, particularly overhead work or work involving any heavy lifting. He noted that she had been advised against surgery, which he said was reasonable.
Mr Clive Jones
42 In October 2011, the plaintiff was medically examined by Mr Clive Jones, orthopaedic surgeon, at the request of the defendant’s solicitor. He described the plaintiff as “genuine”. He said the plaintiff presented with shoulder symptoms. The clinical findings were consistent with a rotator cuff injury in the right shoulder. He said attrition in the rotator cuff tendons is almost universal with continued ageing and renders them susceptible to injury. He said it would not be unreasonable to assume that her recent fall in August 2011 caused additional aggravation, even if temporary.
Credit of the Plaintiff
43 The plaintiff was not clear in explaining the nature and the consequences of her injury and gave the impression that she did not understand the importance of conveying this to the Court. Her evidence was often contradictory and confusing. For example, I was unsure why she no longer walked the dogs. Her evidence was confusing in the number of days’ sick leave she took and whether that was related to her injury. Her evidence was also confusing about the medication she took and whether it was for her shoulder injury.
44 The plaintiff was consistent in reporting the injury and its causes to doctors whom she saw. However, there were some inconsistencies in some of the medical reports; in particular, Mr O’Brien’s report. He reported that she had been advised to have surgery and that physiotherapy did not result in improvement in the pain. Both of those statements are inconsistent with the medical reports of Ms Keith and Mr Waddell.
45 I accept that the deficiencies in her evidence were due to an unfamiliarity with the court process. I accepted she was a credible witness. The plaintiff impressed me as a hard working woman who was keen for the Court to understand her work ethic.
Analysis of the Evidence
46 Based on the medical evidence, I am satisfied that the plaintiff suffered a compensable injury arising out of, or in the course, of her employment with the defendant. All of the medical witnesses accepted the injury was work-related.
47 All doctors said the plaintiff had a rotator cuff injury in the right shoulder. Her shoulder injury was described as:
• a partial thickness articulated sided tear of the supraspinatus (Mr Kolt); • a tear of the supraspinatus portion of the rotator cuff with associated subacromial bursitis (Mr Brearley); • a partial tear of the supraspinatus tendon with evidence of tendinopathy (Mr O’Brien and Ms Keith); • Both Ms Keith and Mr Shannon accepted the plaintiff injured her shoulder at work but considered the ongoing nature of the injury was due to the ageing process. 48 The only doctor to consider surgery was Mr John O’Brien. It is important to note that he did not have the reports from Ms Keith, the treating orthopaedic surgeon. Further, there was information in his report that was not consistent with the physiotherapist’s report and the report of Ms Keith.
49 It is necessary for me to evaluate the pain and suffering consequence. I was referred to Haden Engineering Pty Ltd v McKinnon,[9] where Maxwell J stated:
[9] [2010] VSCA 69 at paragraphs [11], [12], [13], [14], [15] and [16]
“11 The evidentiary basis of the pain assessment will ordinarily comprise
the following:
(a) what the plaintiff says about the pain (both in court and to doctors);7 (b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment); (c) what the doctors say about the extent and intensity of the plaintiff’s pain; and (d) what the objective evidence shows about the disabling effect of the pain. 12 As to (a), 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. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.
13 As to (d), the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.
The disabling effect of pain
14 As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained’.
15 As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her]’.
16 Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s:
• sleep;
• mobility;
•
cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
• capacity for self-care and self-management;
• performance of household and family duties;
• recreational activities;
• social activities;
• sexual life; and
• enjoyment of life.
… .”
50 The evidence as to pain was that the plaintiff told Mr Kolt the pain had diminished over time but not completely in mid-2010. In November 2010, she told Ms Keith that she suffered pain about the shoulder, which radiated to the elbow, and some night pain, and pain with elevation. Ms Keith repeated the injection and apart from a flare-up of symptoms, the pain settled.
51 In April 2011, Ms Keith reported that the plaintiff said the pain has “settled down a lot”.
52 In July 2011, the plaintiff told Mr Brearley and Mr O’Brien that she had constant pain of variable intensity in the shoulder. She told Mr Shannon the pain she suffered was akin to toothache, and Mr Jones noted that her symptoms were typical of right shoulder pain. She told the Court that she could manage her pain with medication for the first sixteen months. She agreed that in 2009, she was taking Tramadol and Panadeine Forte for other reasons. She said she takes medication before work and during the afternoon, and on occasions before she goes to bed. She takes Tramadol during the day and Panadeine Forte at night. She told Mr Brearley she takes Tramadol, 40 mg, each morning.
53 I accept the plaintiff suffered pain and no doctor suggested she in any way exaggerated her position.
54 Her evidence was confusing in relation to type and regularity of the medication she took. I accept that she takes taking Tramadol in the morning and Panadeine Forte as required.
55 I accept the plaintiff was stoical, in that she continued to work. It was to the plaintiff’s credit that she had continued working and taken limited days off work.
56 The plaintiff said her sleep was affected and reported that to a number of the doctors. However, there was no indication that she was taking medication to assist in her sleeping.
57 She complained that the pain restricted the performance of household duties; namely, cleaning the windows, heavy household chores and carrying heavy parcels. She employs a window cleaner and her partner assists with the heavier household tasks. She also said that her recreational activities were affected by the pain. She was unable to knit; she no longer swam, gardened, mowed the lawn or played tennis with her granddaughter. In cross- examination, the plaintiff agreed that no doctor had told her that she could not engage in these activities. Further, Mr Kolt said that he would encourage her to garden, swim and play tennis with her granddaughter so long as she did not smash the ball and provided that she engaged in these activities within the level of comfort that the shoulder gives. She said she no longer walked her dogs. It was unclear why she no longer walked her dogs, whether it was because they had to be on a lead and she did not like walking with a lead, or whether it was because her son walked the dogs, or whether it was because of the injury to her shoulder.
58 Mr Brearley and Mr O’Brien accepted that the plaintiff’s domestic and recreational activities were affected and that would continue into the future.
59 The plaintiff said that at work multi skilling was being encouraged and she is precluded from participating because the other jobs require reach, which she is unable to do because of her injury. I accept this is a consequence of her injury.
60 In Stijepic v One Force Group Australia Pty Ltd,[10] Ashley JA and Beach AJA said:
“… The emphasis in s 134AB (37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation — because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”
[10] [2009] VSCA 181 at paragraph [42]
61 In assessing the consequences, the Court stated:[11]
“… the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”
[11] at paragraph [44]
62 It is accepted that the plaintiff has residual symptoms with her right shoulder, but the residual symptoms have left her in the main with an arm that can be used in a reasonably normal fashion. I accept that the plaintiff has suffered consequences in daily living as a result of the injury to her right shoulder. The plaintiff is aged seventy-two. To her credit, she continues to work and has no plans for retirement. She has retained the ability to engage in moderate physical activities such as swimming and playing tennis with her granddaughter, drives her motor vehicle, and travels overseas. She has a permanent relationship and retains a relatively active lifestyle for a woman of her years.
63 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[12]
“… many disturbances are considerable, in the sense that they are
important or substantial, without being very considerable. … .”
[12] [1998] 1 VR 702 at paragraph [3]
64 Section 134AB was intended to restrict the availability of common law damages to workers whose impairments were of “very considerable” magnitude. Although the plaintiff’s shoulder injury had a notable effect on her life, she retains the capacity to participate in many activities and to undertake full-time work.
65 Taking all of the evidence into account, and in light of the evidence as a whole, I accept the plaintiff suffered a shoulder injury at work in January 2009. I accept the injury has had consequences to her, but I am not satisfied that, when judged by a comparison with other cases in the range of possible impairments, the injury can “fairly be described as being more than significant or marked and as being at least very considerable”.
66 Accordingly, I dismiss the application.
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