Henery v Mackillop Family Services Ltd

[2010] VCC 712

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT WARRNAMBOOL
CIVIL DIVISION
DAMAGES & COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-08-03861

STACEY LOUISE HENERY	Plaintiff
v
MACKILLOP FAMILY SERVICES LTD	First-named Defendant
and
ALLIANZ AUSTRALIA WORKERS COMPENSATION (VIC) LTD	Second-named Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Warrnambool
DATE OF HEARING:	21 and 24 May 2010
DATE OF JUDGMENT:	22 June 2010
CASE MAY BE CITED AS:	Henery v Mackillop Family Services Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2010] VCC 0712

REASONS FOR JUDGMENT

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Catchwords: Accident Compensation Act 1985 – Section 134AB – Application for leave to bring proceedings in respect of pain and suffering only – Injury to left shoulder – Whether consequences of injury are sufficient to meet statutory requirements – Factors to be considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Brookes SC with	Stringer Clark
Mr N Bird
For the Defendants	Mr P Scanlon QC with	Lander & Rogers
Mr P Jens
HIS HONOUR:

General background

1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”.

2          The interests of the two defendants in this matter overlap entirely. Henceforth, I shall refer simply to “the defendant”, meaning the plaintiff’s employer at the time of injury – that is, MacKillop Family Services Ltd.

3          The plaintiff seeks leave to bring proceedings in respect of pain and suffering damages only. In so doing, she relies solely upon paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act. References in the documentation to conditions of anxiety and depression were apparently made “only for completeness”, and reliance is not placed upon them. Of course, matters involving psychological or psychiatric factors can still be relevant.

4          The injury upon which reliance is placed is one to the left shoulder. The plaintiff is right-hand dominant. It is alleged that the plaintiff, who was employed by the defendant as a residential worker looking after problem children, on or about 13 July 2004, was assaulted by one such child, this assault causing the injury upon which reliance is placed. The central issue is whether or not the consequences of the injury suffered by the plaintiff satisfy the statutory requirements. Essentially, the case is one of those frequently described as a “range case”.

5          I will not set out the numerous authoritative decisions of the Court of Appeal which are relevant. I have referred to them in many previous cases.

6          Mr D Brookes SC with Mr N Bird of counsel appeared on behalf of the plaintiff. Mr P Scanlon QC with Mr P Jens of counsel appeared on behalf of the defendant. The plaintiff gave evidence and was cross-examined. The balance of the evidence was documentary in nature (in addition to some surveillance material) and was tendered by consent, which was a most sensible and cost-effective manner in which to run an application such as this. In addition, counsel made thorough and very helpful submissions.

Factual background

7          The following findings of fact are made for the purposes of this application and are not intended to be findings which are in any way determinative in relation to issues of negligence, the quantum of damages, entitlement to statutory benefits and the like.

(i) The plaintiff

8          The plaintiff impressed me as being completely straightforward, frank and reliable. She was a most impressive witness. I note that Mr Kenneth Brearley, surgeon, examining the plaintiff at the request of her solicitors, described her as pleasant and also stated:

“She is very straightforward in her presentment and there is no sense at

all of any exaggeration of her symptoms or disability.”

9          I agree entirely. In my view, the Court could be confident that her evidence, both oral and in affidavit form, and when describing her symptoms and restrictions, was accurate and reliable. Indeed, in his closing address on behalf of the defendant, Mr Scanlon described the plaintiff as a person who presented well, seemed pleasant, and was frank in her admissions. He added, “…We don’t criticise her in any way about that”.

10        Surveillance material was shown to the Court. In my opinion, this did no damage to the credit of the plaintiff. Certainly, the manner in which she appeared in the surveillance material (taken on 24 April 2010) differed from the way in which she presented to the Court. On the film, she moved her left arm more freely, although still seeming to rest or cradle it at times. Her presentation in Court was more restricted. However, she readily admitted this, whilst pointing out that she had driven for some five hours to Warrnambool on the day prior to the hearing, having driven from her mother’s place in southern New South Wales. She said that her arm was often sore after driving. The plaintiff also pointed out that the chair on which she was sitting in the witness box did not have arm rests which she would normally use. I took this to be a reference to the fact that she cradled her left arm in her right whilst sitting in the witness box.

11        In re-examination and in his closing address, Mr Brookes took me to some occasions in the surveillance film when he alleged that the plaintiff was in fact cradling her left arm. I viewed the film in Court, and I have since viewed it again. On each occasion it struck me as having no damaging effect upon the plaintiff’s credit. Having watched it carefully, I might also say that it does not appear to me that the plaintiff was cradling her left arm in the sense of supporting it by use of her right arm, although she did have her arms folded at times. She did appear from time to time to be resting her left forearm upon her handbag and cradling it in that fashion, something which the plaintiff gave evidence that she does. I note that movements of the plaintiff’s left hand through her hair were done with a bent elbow, as one would expect, and I read very little into that. Similarly, the plaintiff gave evidence that normally she drives using an “underarm” position on the steering wheel, whereas in the film she turned the wheel “hand over hand”. Again, I read very little into this. Her left arm was in a bent position and patently the vehicle had power steering. Similarly, her opening the car door on one occasion with what appeared to me to be a partially, although not fully, extended left arm is not something which I regard as being of significance. All in all, the effect of the film could largely be described as neutral, although it does seem to me to show at times the plaintiff resting her left arm upon her handbag. Also, when walking, she was swinging it very little. On one occasion she walked with her left hand in the back left pocket of her jeans which she said is something which she tends to do when going for a walk because it stops her left arm from moving around. If anything, the film is slightly supportive of her position, but the overall impact is close to neutral. Certainly, she did nothing strenuous with her left arm whilst under observation. As stated, I am not of the view that the surveillance material had any detrimental effect on her credit or reliability.

(ii) The plaintiff’s background, training and employment prior to the injury of 13 July 2004

12        As this application is for leave in respect of pain and suffering damages only, the amount of detail required under this heading may be less than might otherwise be the case. In any event, the plaintiff is aged thirty-six years, having been born on 26 April 1974. She is a single woman. She completed her secondary education at a school in southern New South Wales, and then pursued her tertiary education. She obtained a Bachelor of Arts at Armidale University and La Trobe University before completing a Masters Degree in Mental Health at Charles Sturt University in New South Wales. She then travelled considerably, working in casual jobs, including that of a waitress, and also performed some dairy farming. In 2000, she commenced employment with the defendant.

13        Her duties with the defendant were those of a residential worker which involved attendant care with “street kids” and high risk individuals. These could be children and adolescents of considerable size. She sustained injury on 13 July 2004 when assaulted by one such client.

14        I accept that, prior to injury, the plaintiff lived a very active life. She liked and was involved in travel of an adventurous nature, including trekking, hiking and backpacking. The plaintiff had engaged in sports such as netball, basketball and the like, although she had not participated in these for some four years prior to the injury. However, she did have hopes of returning to these, regarding such activities as a good way to meet people if moving around in the course of her present employment. I accept that her life was very active and that she had hopes of engaging in even longer treks, such as the Kokoda Trail.

(iii) The injury

(a) The plaintiff’s health prior to the injury

15        Prior to 13 July 2004 the plaintiff noticed some trouble or soreness with the left shoulder and also across to the right side to a lesser extent. This occurred when she was separating some troublesome patients during an incident. After breaking up this fight, she was conscious of a “kind of soreness” through the left shoulder and across to the right side. She completed an entry in the workplace register of injuries, and took Ibuprofen. The symptoms lasted for two days, and she was only on the Ibuprofen for that period. Given that she entered this incident of injury in the defendant’s register (a proposition that was not challenged) and referred to it in her affidavit of 3 April 2008, and given the apparent minor nature of the incident, I attach no great significance to the fact that it was not referred to in the plaintiff’s claim form of 20 July 2004. In addition, the employer’s claim form indicates that the employer knew that the plaintiff had a previous claim for this injury or condition. It would appear from the report provided by Dr Jenshel, the plaintiff’s general practitioner, of 30 August 2006 that there may in fact have been two other attacks at work, but on each occasion the pain lasted only two days. Paragraph 13 of the plaintiff’s affidavit of 3 April 2008 would also suggest that there was more than one incident. Whether this was so was not really explored either in evidence- in-chief or cross-examination, attention being focussed on one particular incident. Given the apparent minor nature of any symptoms experienced, my thinking is not greatly affected by the issue of whether there be one or two previous episodes of shoulder soreness.

16        Indeed, I attach no great significance to any previous incident of injury either in regard to the plaintiff’s credit or as to any pre-existing injury or condition of substance. I accept that, immediately prior to 13 July 2004, the plaintiff was in good health and was not troubled by symptoms or restrictions in the left shoulder. Even if it had been argued that this case was one of aggravation (and effectively it was not), I would scarcely be persuaded of same. In any event, even if there was some pre-existing underlying condition or injury that had been aggravated, all of the consequences and restrictions from which the plaintiff suffers flow from that aggravation.

(b) The injury

17        I have already referred to the incident of injury on 13 July 2004, this occurring as the result of an assault. At the time the plaintiff’s shoulder was wrenched and she felt a gradual increase in pain over the next few hours. Her condition did not improve with rest, and she also noticed a clicking in the shoulder. The pain was particularly severe at night and woke her from sleep. Ultimately, the plaintiff went to see her general practitioner, Dr Jenshel, on 28 July 2004.

18        Dr Jenshel found the plaintiff to have a very tender left shoulder, especially laterally and superiorly. She was unable to fully abduct her arm and pain and fatigue prevented her from holding it up for more than a few seconds. The plaintiff had commenced physiotherapy, and Dr Jenshel recommended that she continue with it. He recommended that she perform alternative duties where she did not use her left arm, and therefore she would be unable to supervise children that posed a physical threat.

19        When the plaintiff had only limited improvement over the following two weeks, Dr Jenshel then prescribed a course of oral Prednisolone. This did not solve the problem. Whilst an ultrasound and an x-ray both produced normal reports, Dr Jenshel, who suspected that the plaintiff suffered from left supraspinatus tendonitis, referred her to Mr Christopher Pullen, orthopaedic surgeon specialising in shoulders.

20        Mr Pullen saw the plaintiff on 14 September 2004. Upon examination, Mr Pullen found that the plaintiff was very tender in the region of the long head of the biceps. She had crepitus in the shoulder joint and clicking, particularly on forward flexion, although she had a full range of motion of her shoulder without pain. Mr Pullen organised an MRI scan, this being carried out on 17 September 2004. The relevant conclusion was that the MRI result was consistent with a small partial tear of the infraspinatus tendon.

21        The plaintiff continued with physiotherapy, and there was some improvement. In his initial report of 9 November 2004, Mr Pullen anticipated an arthroscopic debridement of the tear if there was incomplete recovery.

22        The plaintiff continued with conservative treatment, including acupuncture. Dr Jenshel has recorded that the plaintiff returned to administrative duties at work, including working with lower risk children. However, her condition did not resolve. Having reviewed her twice in late 2004, Mr Pullen again reviewed the plaintiff on 4 February 2005. Her shoulder was again troubling her. Accordingly, after approval had been obtained, Mr Pullen proceeded to surgery. On 21 March 2005, the plaintiff underwent a left shoulder arthroscopy, capsular shrinkage and bursectomy. At operation, Mr Pullen noted marked joint laxity and florid subacromial bursitis. Following hospitalisation, physiotherapy was resumed. The plaintiff was certified as being unfit for work.

23        At review on 5 April 2005, the sutures were removed and the plaintiff was certified again as being unfit.

24        When Mr Pullen reviewed the plaintiff on 3 May 2005, her shoulder had become quite stiff. As she had been living in the country, there were issues raised as to her ability to do a supervised physiotherapy program. She was again certified as being unfit.

25        The plaintiff’s progress under the care of Mr Pullen continued. By 31 May 2005, her pain had resolved (a proposition with which she did not entirely agree), but she still had significant stiffness. She was certified as being able to return to work on modified duties from 6 June until 26 June 2005, these restrictions effectively confining her to office duties with no client contact, no work above shoulder height and no lifting of weights greater than two kilograms.

26        The stiffness in her shoulder did not improve. On 1 July 2005, apparently upon referral from Mr Pullen, the plaintiff underwent a left shoulder hydrodilatation performed by Dr Michael Smith. This resulted in only minimal improvement. As a result, following a review on 27 July 2005, Mr Pullen suggested a manipulation under anaesthetic. Approval was granted for this, and accordingly, on 22 August 2005, the plaintiff underwent a left shoulder hydrodilatation and manipulation under anaesthetic. After discharge, the plaintiff was again certified as being unfit for work.

27        Mr Pullen reviewed the plaintiff on 14 September 2005. Her range of motion had improved, and she was encouraged to undertake further arm stretching exercises and physiotherapy. She was again certified as being unfit for work. Ultimately, she was certified as being fit to resume restricted duties on 17 October 2005. As at the time of Mr Pullen’s report of 4 November 2005, the plaintiff was still having problems with stiffness and pain in her shoulder. He foreshadowed that she may require further surgery, and considered it unlikely that her shoulder symptoms would fully resolve. Mr Pullen expressed the view that the plaintiff would always have some stiffness of her shoulder and possibly some pain with extreme movement. He stated that her shoulder “may always have some weakness to it”.

28        When reviewed by Dr Jenshel on 10 February 2006, the plaintiff had a full range of painless movement of her left shoulder with no tenderness identified, although she was noted to have a wasted deltoid muscle and was weak and felt pain when resisted abduction was tested. I might add that the plaintiff did not necessarily agree with the proposition that she had ever been free of pain.

29        The plaintiff has not had a great deal of treatment thereafter. She attended upon Dr Robson at Hopkins Medical Centre, Warrnambool, on 14 April 2008 with gradually increasing left shoulder pain. Apparently she gave him a history of events, but he seemed to feel that her pain was referred from her neck and trapezius muscle. Subsequently, as shall be described, the plaintiff moved to Alice Springs for employment purposes. Whilst there she attended upon Dr Simon Wilson, general practitioner, on 18 July 2009. She had been driving, and was forced to wrench the steering wheel. She felt immediate pain and her left shoulder stiffened up again. She gave a history of her initial injury in July 2004 and the subsequent surgery. Upon examination, Dr Wilson found some restriction of movement and crepitus on active abduction. He prescribed rest and mobilisation exercises, with a suggestion of physiotherapy and analgesia. The plaintiff takes a modest amount of medication when required, but this could not be described as great. She has not had any physiotherapy for approximately two years.

30        The plaintiff has also been seen for medico-legal purposes. She was seen by Mr Paul Kierce, orthopaedic surgeon, on behalf of the defendant, on 7 March 2007. His examination seems to have been principally for the purposes of assessment pursuant to the AMA Guides. Apart from taking a history of the injury, he recorded that the plaintiff complained of pain in her neck, left shoulder and left elbow, such pain worsening towards the end of the day. She suffered worse pain if she tried to lift her left arm above shoulder level or to the outer side and back. She also found that quick movements of the left shoulder were very painful. She had not been receiving active treatment, but was attending a gymnasium and doing weight training. Mr Kierce found no wasting or crepitus, but a positive impingement sign. He diagnosed adhesive capsulitis of the left shoulder, clinical examination having revealed significant limitation of left shoulder movements following the surgery. He attributed her condition to the prescribed injury and considered her condition stabilised.

31        Mr Kenneth Brearley, surgeon, examined the plaintiff at the request of her solicitors on 7 September 2009. Apart from taking a history of events, he recorded that the plaintiff was still having serious problems with her left shoulder including pain whenever she carried out significant movements or use of the left hand and arm. Reaching forward or to the side quickly caused quite severe shoulder pain, and the plaintiff said she was unable to do any significant work above shoulder height but could lift objects at bench height. He recorded that the plaintiff was no longer able to swim, could not play team sports, and avoided adventure travel.

32        Mr Brearley observed quite marked wasting of the shoulder musculature along with small scars. The plaintiff had a full range of movements of the shoulder joint with pain through the last 30 degrees of most movements. Mr Brearley’s opinion was that the plaintiff had suffered a significant injury to the left shoulder comprising a partial thickness tear of the infraspinatus tendon. He stated that she had impairment of function and resultant disability as a consequence of the injury. She was unable to lie on the shoulder, and could not do any work above shoulder height. She could not do any heavy lifting using the arm and hand, and could not carry out reflex sudden movements of the left arm. Any work involving the use of the arms had to be modified or altered as a result of her injury. He considered the impairment to be permanent and that her condition had reached maximum medical improvement. He thought the plaintiff fit for lighter work but not for her previous employment with angry or mentally disturbed clients. He concluded that she was no longer able to play team sports or swim and had difficulty with the heavier aspects of housework. In his opinion, the plaintiff will never be able to undertake manual labour in the future because of ongoing symptoms from the injury.

33        Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff at the request of the defendant on 8 September 2009. Mr Dooley also took a history of events. In relation to the plaintiff’s present complaints, he noted ongoing pain and stiffness of the left shoulder. The plaintiff stated that she woke up at nights because of her shoulder pain, was unable to play active ball or contact sports, and tried to remain fit by regular walking. She also stated that driving long distances could cause difficulties because of her shoulder. Surprisingly, unlike Mr Brearley, he found no visible wasting. Mr Dooley expressed the view that it is possible that the plaintiff, in the incident of injury, suffered a subluxation or momentary dislocation of the shoulder against the background of underlying capsular laxity. He concluded that, following surgery, the plaintiff had gone from a position of potential instability of the shoulder to a situation where the shoulder was stiffer than usual. He noted limitations in terms of intermittent aching of the shoulder when the plaintiff engaged in overhead or throwing type activities, was of the view that no further treatment would assist, and expressed the opinion that she should not work in residential care in youth worker positions where she may come across aggressive or unstable clients. He was of the view that she would continue to note intermittent left shoulder girdle pain and mild restriction of motion of the left shoulder. Mr Dooley seems to have had some reservations concerning the accuracy of the MRI scanning and his report does not give the impression that he was totally convinced by the findings at surgery. It is unclear what documentation Mr Dooley had available to him, but the impression conveyed was that it was limited.

34        In relation to the injury suffered, I prefer the opinion of the treating surgeon, Mr Pullen. I accept that the MRI scan indicated a small partial thickness tear of the anterior infraspinatus tendon. I accept that, at arthroscopy, what was revealed was marked joint laxity and florid subacromial bursitis. Accordingly, accepting as I do the opinion of Mr Pullen, the plaintiff suffered a partial thickness tear of her infraspinatus tendon, post-traumatic left shoulder laxity and significant subacromial bursitis, complicated by the development of post- operative shoulder stiffness. To a considerable extent, this probably coincides with Mr Kierce’s diagnosis of adhesive capsulitis of the left shoulder joint following surgical treatment of a work-related rotator cuff lesion. Essentially, it also coincides with the diagnosis of Mr Brearley. Accordingly, it is the description of injury which I accept. It is apparent that she has undergone three surgical procedures, namely a left shoulder arthroscopy together with capsular shrinkage and bursectomy performed 21 March 2005; left shoulder hydrodilatation performed 1 July 2005; and left shoulder hydrodilatation with manipulation under anaesthetic performed 22 August 2005.

35        I am satisfied that the injury and its consequences are permanent within the meaning of the Act in that they will persist for the foreseeable future. Mr Kierce, examining on behalf of the defendant in March 2007, expressed the view that the plaintiff’s impairment had stabilised and he was prepared to make a whole person impairment assessment pursuant to the AMA Guides, a pre-requisite for which is permanence. Mr Brearley, examining in September 2009, stated that the impairment is permanent with no likelihood of any improvement within the foreseeable future. He described the plaintiff’s condition as stabilised, having reached maximum medical improvement. Mr Dooley, also examining in September 2009, referred to the plaintiff’s limitations of shoulder movement as persisting, and stated that, in his view, there is no further treatment that could predictably improve either her range of motion or her intermittent shoulder pain. He did not expect her condition to deteriorate. Those are the three most recent expert opinions. They seem to me to point clearly to the conclusion that the plaintiff’s impairment and its consequences are permanent within the meaning of the Act.

36        I might add that, on the basis of the evidence and on my observations of the plaintiff, there do not seem to me to be any psychiatric or psychological consequences of any moment, if they exist at all, but, in accordance with the Act, they shall not be taken into account in any event.

(c) Developments since the occurrence of the injury

37        Again, as the plaintiff is seeking leave only in respect of pain and suffering damages, less detail than might otherwise be the case is needed under this heading. Of course, her ability to engage in employment remains relevant.

38        The plaintiff’s ongoing medical treatment has already been described. In relation to her work activities, the plaintiff has avoided employment in her chosen field which would involve contact with troublesome youths and the like. She has effectively engaged in a series of contract employments. As described above, she was on restricted duties for a period, this being interrupted by the necessity for surgery and rehabilitation, before leaving employment with the defendant and transferring to Warrnambool in approximately March 2006. She there worked for the Brophy Family & Youth Services dealing with some problem children, but since October 2008 she has worked essentially in the Northern Territory as a child protection worker. Her most recent contract in Alice Springs ended in October 2009, but she shall shortly return. I gather that such work involves her only with younger children and babies. She has also returned to Victoria on a six month contract where she also performed child protection work, but then returned to Alice Springs on another contract. She was about to return to Alice Springs immediately after this hearing. In other words, she is moving from place to place on fixed term contracts, but basically her work has been in the Northern Territory. As I understand it, she has not been working with older children or troublesome adolescents.

39        Her employment in Alice Springs involves her in some driving to Aboriginal reserves, although she also does some employment-related travelling by plane. Some of the driving is on sealed roads and some on dirt tracks. Whilst the visits to some communities might involve travelling some 800 kilometres, a team of two does this over a couple of days. However, the plaintiff disagreed with the proposition that, when working pursuant to the Alice Springs contract, she would be driving something in the order of 800 to 1,000 kilometres per week. The plaintiff was able to drive from Alice Springs to Melbourne, although how long that trip took is not entirely clear.

40        Since the injury, the plaintiff has gone on a quite lengthy overseas trip, and it may well be that she has also been on another such trip, perhaps of shorter duration. Whilst some confusion reigned about exactly when and where she travelled, her passport, which was put in evidence, would seem to indicate that she travelled twice, being in England in late September and October 2006, and then going on the apparently more lengthy trip in 2007. That trip, which seems to have taken something in the order of three months, involved the plaintiff going to the United States, thence via Canada for a stopover before proceeding to England, and from England to Africa where the plaintiff joined a touring group. Eight weeks of the plaintiff’s time overseas was spent working in a mainly supervisory capacity at a summer camp in the United States. In Africa she visited Namibia, Botswana, Zimbabwe and the Republic of South Africa. Her time in Africa amounted to some three weeks. On the tour in Africa, the plaintiff visited some villages, although this was not for the purposes of work. She camped in some of these, using a sleeping bag and a thin mattress. She had help to set up a tent and, for example, when visiting Victoria Falls, stayed in a hostel. In re-examination, the plaintiff stated that, whilst in Africa, she did not sleep much at all and has not tried camping again. She said that attempting to sleep in her sleeping bag was very uncomfortable. When she had a chance to upgrade into hotel accommodation, she always took that option. In short, whilst the plaintiff has been on overseas trips and one reasonably substantial one involving a camping tour in Africa, I accept that she did have some difficulties related to this.

41        I also accept that the plaintiff is now engaged in employment which is more remunerative than her pre-injury occupation and that, given that it is inadvisable for her to return to her pre-injury occupation involving the caring for troubled and potentially aggressive youths, she has found work, on a contract basis, that is both well paid and appropriate. Of course, her present occupation is not that which she had originally chosen.

Ruling
42	After some lengthy consideration of the available evidence and bearing in mind the impression made by the plaintiff in her oral evidence, I am satisfied that the burden of proof has been discharged. I am satisfied that the pain and suffering consequences of the impairment or loss of a body function which the plaintiff has sustained are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable.
43	I have come to that conclusion for the following reasons which are not set out in order of importance:
(a) As stated, I accept the plaintiff as a witness of truth. Indeed, in his closing address, and as previously stated, Mr Scanlon referred to her as someone who presented well, was pleasant and frank. Of course, he argued that the level of pain and restrictions from which she suffers is minimal and, combined with her ongoing capacity and activities, resulted in her falling well short of satisfying the statutory requirements. However, the bottom line is that the overall impression created by the plaintiff of being frank and reliable was not seriously challenged, and this was quite properly so.

Mr Brookes directed me to the observations of Maxwell P in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69. His Honour therein noted that the judge at first instance had recorded that it was of particular significance that he had reached a favourable conclusion about the credibility of the injured party. The judge at first instance found that person to be a straightforward witness who did not seek to embellish or exaggerate his injury or its impact upon him, and regarded that person’s credit as being particularly relevant to the assessment of pain and suffering. Maxwell P regarded the trial judge’s approach in relation to such matters as being exemplary and, whilst referring to the taking into account of objective matters, observed that:

“Plainly enough, the credibility of the plaintiff is a particularly relevant matter, though regard would always have to be had to what the evidence showed about the effects of the pain on the plaintiff’s capabilities.”

As was said by Buchanan JA in McKinnon:

“Pain is not objectively measurable. Experience of and reaction to

pain varies from one person to another.”

Further, in McKinnon, Nettle JA stated:

“Having considered all of the evidence which was before the judge below, I am unable to fault his Honour’s analysis. Evidently, he was impressed by the respondent as a witness of truth and accepted the respondent’s evidence as to the level and duration of his pain and its consequences. I do too.”

Given that I accept the plaintiff as a witness of credit and that her description of the pain, consequences and restrictions from which she suffers is accurate, I would point out the following:

• When the plaintiff makes a reflex action with her left arm, the results can be “extremely, extremely painful” – see T 50.

• The plaintiff cannot sleep on her left side and would have interrupted sleep, on average, four times a week – see T 52.

• The plaintiff has pain every day, even if there are days when she has not complained about it – “It’s there every day” – see T 54. Further, the plaintiff has sworn that she has pain in the shoulder all the time and that, from the moment she gets out of bed, she suffers aggravations of pain in one way or another al day – see paragraphs 30 and 32 of her affidavit of 3 April 2008. In her affidavit of 4 April 2010, the plaintiff has repeated that she has pain all the time which is there every day and that “rarely a day would go by that I do not have a sharp increase in pain” – see paragraph 6 and 7.

• The plaintiff tries never to outstretch her left arm or have the elbow locked – see T 55. Particularly since seeing Mr Brearley, the plaintiff is conscious of wasting of her left shoulder and it being lower than the right. As a result of this, she is conscious of the fact that people might stare at her, and does not think that she would do such things as the wearing of evening wear or bathers that would expose her shoulders. In addition, she has grown her hair longer. (I appreciate that Mr Dooley could not find evidence of wasting, whereas Mr Brearley believed it to be quite marked. The plaintiff’s shoulder was not inspected in Court. I accept that she believes such wasting to be present, and that this is a cause of some embarrassment.)

• In her affidavit of 3 April 2008, the plaintiff has listed a large number of daily activities which are now difficult for her. They include such simple things as unscrewing bottles and jars, housework, showering, cutting up food, dressing and the like. As has been stated, she has sworn that “… from the moment I get out of bed I suffer aggravations of pain one way or another all day”.

Whilst the plaintiff is having minimal, if any, ongoing “hands on” treatment, and is not taking substantial doses of medication, I accept that she is experiencing pain and restrictions to the extent described. She strikes me as a somewhat stoical person who is getting on with her life and who has found for herself suitable and appropriate employment. However, she is suffering the symptoms and limitations described.

(b) The plaintiff is aged thirty-six years. There is no reason to suspect that she has anything other than normal life expectancy. As previously discussed, her condition is stabilised and the consequences of her impairment will persist for the foreseeable future – probably decades. As was said by the Court of Appeal in Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181:

“When judging the pain and suffering consequences for the appellant by comparison with other cases, we consider that it is relevant to look at the likely period for which those consequences will be experienced. All things being equal, impairment consequences which a man (or a woman) will have to put up with for 40 years might well be judged more serious than the same consequences which a man (or a woman) may have to put up with for a much shorter period of time.”

The probabilities are that the plaintiff will have to put up with the
consequences of her impairment for forty years or more.

(c) Whilst the plaintiff is still clearly capable of such things as overseas travel, walking approximately five kilometres and driving considerable distances, her pre-injury lifestyle was a particularly active one. I accept that she engaged in backpacking, trekking and activities of that nature, and may well have had aspirations to engage in such things as trekking the Kokoda Track and the like. As was said by Maxwell P in McKinnon, every case depends on its own facts. His Honour, with apparent approval, referred to the submission of counsel that:

“Each aspect of suffering is individual and needs to be understood

in the context of the particular person.”

He also referred, again with apparent approval, to the submission of

opposing counsel that:

“The Court must assess the consequences for a particular worker
in the context of his/her circumstances.”

This particular plaintiff was involved in “adventure-type” travel which involved trekking, hiking and carrying a large backpack over her shoulders. She is now unable to be involved in hiking and the like to the extent that she was prior to the injury. In paragraph 19 of her affidavit of 4 April 2010, she states as follows:

“…I have no doubt that but for my shoulder injury I would be doing things like playing netball, trekking, climbing, even something like walking the Kokoda Trail or trekking to base camp. It depresses me at times that these things are now denied me.”

She has also stated that:

“I am affected almost every hour of the day by this injury. In fact in almost every activity I undertake during the day I find myself constantly weighing up the risk of further injury or pain in my shoulder” – see paragraph 20 of the same affidavit.

I accept that, to this particular plaintiff, these activities were of importance. I also accept that, to a large extent, they are now denied to her. Indeed, as is set out in the extract from paragraph 20 of her second affidavit as set out above, her injury impacts upon her activities generally.

(d)

There were also placed in evidence affidavits of two of the plaintiff’s friends, one of whom was also a work colleague of the plaintiff during the time that she worked in Alice Springs. This latter person, Mr Nathanial Taylor, saw the plaintiff regularly for a period of eighteen months. He noticed such things as the fact that her left shoulder appeared different in some way from the right, and that there were times when the plaintiff cradled her left arm, apparently in order to take strain off that shoulder. He noted restrictions on the part of the plaintiff in relation to her outdoor activities, and frequently saw her in pain. At other times he noticed that, at the end of the day, she appeared to be extremely uncomfortable and complained that she would simply have to go home to bed. The other affidavit is that of Ms Elizabeth Murphy, a friend of the plaintiff who saw her frequently when she worked in Warrnambool. Ms Murphy has sworn that it was obvious to her on many occasions that the plaintiff was frequently uncomfortable and in pain and, upon catching up with the plaintiff following her return from Alice Springs, she noted that the plaintiff was still restricted in the same way and that there were times when she would cradle her left arm. Neither of these witnesses were required to attend for cross-examination on their affidavits. I accept what each has sworn.

(e)

Whilst the plaintiff has been fortunate in obtaining well paid and appropriate employment on a contract basis, the occupation which she had been pursuing prior to the injury, namely residential work potentially involving troublesome children and youths, is no longer open to her. Mr Brearley has stated this, and Mr Dooley has stated that the plaintiff would need to be wary of working in positions where she may come across aggressive or unstable clients. Indeed, Mr Pullen had foreshadowed this. I accept it. Indeed, I accept the opinion of Mr Brearley that the plaintiff will never be able to undertake manual labour in the future.

44        When all of the above is taken into account, it seems to me clear that the plaintiff has suffered from very frequent, if not daily, pain, discomfort and restrictions. Given her age, these could continue for decades. As I have earlier said, the evidence of the plaintiff herself and her credit are important in this regard. Thus, it seems to me that the pain and suffering consequences of her impairment are sufficient to meet the statutory requirements.

Conclusion

45        The plaintiff is successful. She has discharged the burden of proof in relation to pain and suffering damages. Leave to issue proceedings in this regard is granted to her. I shall hear the parties as to any ancillary orders that are required.

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