Hopkins v P&R Building and Maintenance Pty Ltd
[2014] VCC 2041
•08 December 2014
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CIVIL DIVISION SERIOUS INJURY | Revised Not Restricted Suitable for Publication |
Case No. CI-14-02215
| JOHN RUSSELL HOPKINS | Plaintiff |
| v | |
| P & R BUILDING & MAINTENANCE PTY LTD VICTORIAN WORKCOVER AUTHORITY | First Defendant Second Defendant |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 28 October 2014 | |
DATE OF JUDGMENT: | 08 December 2014 | |
CASE MAY BE CITED AS: | Hopkins v P&R Building & Maintenance Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2041 | |
REASONS FOR JUDGMENT
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Subject:Serious injury – S134AB(16)(b) – pain and suffering and economic loss –injury to right shoulder
Catchwords: Credit
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Ansett Australia Ltd v Taylor [2006] VSCA 171; Church v Echuca Regional Health [2008] VSCA 153; Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Hayden Engineering v McKinnon [2010] VSCA 69; Ifka v Shanin Enterprises Pty Ltd [2014] VSCA 8.
Judgment: Leave refused to proceed at common law for damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC | Arnold Dallas McPherson |
| with Mr D Purcell | ||
| For the Defendant | Mr W R Middleton QC with Mr R Kumar | Hall & Wilcox |
HER HONOUR:
Introduction
1 The plaintiff’s application is pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for leave to issue proceedings for the recovery of damages with respect to an injury to his right shoulder suffered by him on the 22 March 2011, in the course of his employment with the defendant.
2 The plaintiff relies upon the impairment to the function of his right shoulder as satisfying paragraph (a) of the definition of serious injury contained in s134AB(37) of the Act. The claim is with respect to pain and suffering.
3 The main issues in this case are with respect to the plaintiff’s credit as to causation and the claimed consequences of the accident. The defendant relied on his failure to recall prior complaints of shoulder pain and various discrepancies in his evidence in submitting that he was not a reliable witness.
4 The plaintiff relied upon his Affidavits of 9 December 2013 (his first Affidavit) and 7 October 2014 (his second Affidavit). The plaintiff also gave viva voce evidence. Both parties relied on the medical reports and other relevant documents contained in their respective court books.
Background
5 The plaintiff’s background history is set out in first Affidavit. He was born on 26 January 1951 and is 63 years old. He was educated at Preston Technical School and finished in Form 4. From the age of 19 he worked in the building trade. He started work in this trade for Owen Charlton doing residential buildings in Wantirna. He also worked for a long period with Jennings Homes. In 1996 he moved to Bendigo where he remained in the carpentry industry. He set up a business name “All About Home Maintenance” and worked as a sub-contractor carpenter for a variety of builders in Bendigo .
Prior history of Right Shoulder Pain
6 Although the plaintiff’s Affidavits disclosed no prior injuries to his right shoulder the attendance notes (the general practitioner notes) of Dr Preena reveal that prior to the accident on 22 March 2011, the plaintiff complained about:
·On 11 January 2010 a fall and resulting painful right arm. The diagnosis was an “upper arm contusion.”[1]
·On 8 March 2011 (2 weeks prior to the accident) a painful shoulder. The reason for the attendance was noted as “Tendonitis biceps” and diagnostic imaging was requested of the right shoulder.[2]
[1]Defendant’s Court Book (“DCB”) 27
[2]Transcript (“T”) 4
7 The Emergency Department records from Bendigo Health also reveal that on 24 January 2010, Mr Hopkins attended the Bendigo hospital with right shoulder and rib pain having fallen off a ladder 2/5 days ago prior. He had bruising to the right shoulder, rib pain and a reduced range of his right arm movement backwards.[3]
[3]DCB22
8 In cross-examination the plaintiff denied having suffered any pain in his right shoulder prior to the accident on 22 March 2011.[4] When these three incidents of pre-accident right shoulder/arm pain were put to him, he had no recollection of any of them.[5]
[4]T4
[5]T11,14,18
Work Accident
9 In March 2011 the plaintiff was engaged by Paul Rhodes to perform some carpentry work at a large two-storey house at 90 Moore Street, Bendigo. A painter and another labourer were also working at the site. In his first Affidavit the plaintiff described the work accident as happening at 10.30am on 22 March 2011. He was descending from one level of scaffolding at the top of the building at the front of the house to a lower level. There was no ladder allowing access to the lower section of scaffolding. As he was stepping down, he put his foot on a scaffolding crossbar. The crossbar on the scaffold was loose, and did not hold his weight. He fell about two metres. As he fell, he grabbed the side of the scaffold with his right arm to stop from falling further and he wrenched his right arm. He managed to get up and was assisted by a painter and a labourer who were also working on the site. He rested and over the following minutes developed pain in his right arm which became intense. He left work and attended Dr Preena.[6]
[6]Plaintiff’s Court Book (“PCB”) 20-21
10 On 16 December 2011, the plaintiff made a Statement concerning the circumstances of the accident.[7] When he was cross-examined, the plaintiff agreed that his statement was inconsistent with his Affidavit. The account of the accident in the statement was that when he was stepping down from one level of scaffolding to a lower level (600mm lower) he missed his footing. As he fell he grabbed onto the uprights that were supporting the scaffold. However, he could not get a grip so he fell onto the floor of the scaffold onto his left side. Contrary to his first Affidavit, the plaintiff said that “the scaffold itself was okay, it wasn’t shaking or wonky.”[8]
[7]T10
[8]PCB77
Treatment
11 In paragraph 10 of his first Affidavit the plaintiff stated that when he attended Dr Preena that afternoon he was “very troubled by the pain in his ribs and kidneys”. Dr Preena referred him for x-rays and he received the x-rays the following day.[9]
[9]PCB21
12 The GP notes for 22 March 2011 noted:
· The history “Fall off ladder Pain/abrasion and R/S loin”.
· The reason for contact: “abrasion and contusion”.
· The actions taken prescriptions for medication and urine pathology.[10]
[10]See DCB26 and T13 – Note no x-ray from on or around this date was produced in evidence
13 There was no mention of shoulder pain or of an X-ray being requested. When it was suggested to the plaintiff in cross-examination that he did not complain about any right shoulder problem on 22 March 2011, he could not recall. However, he was adamant that an x-ray was performed.[11]
[11]T11-13
14 While there is no reference to an x-ray in the general practitioner’s notes (“GP notes) of 22 March 2011, there is a request for an x-ray (of the abdomen and chest) on 28 March 2011. On 29 March 2011 the GP notes refer to the x-ray review showing no internal damage. The GP notes of 28 and 29 March 2011 make no reference to the right shoulder.[12]
[12]DCB26, 25(d)
15 The first reference to the plaintiff making a complaint of shoulder pain following the accident, is on 5 April 2011. However, the plaintiff denied that he did not complain about his shoulder on 29 March 2011 and he said, “I — I had complained ... I was just sore all over. It was more the abdomen, the whole side of me was just aching and-in pain”.[13]
[13]T14
16 The history section of the GP notes for 5 April 2011, refer to a review of a scan report and shoulder pain. The reason for the attendance is “Supraspinatus Tendinitis” and “Bursitis – subacromial”. This scan referred to in the GP note is likely to be the result of radiology performed on 30 March 2011 by Dr Jarvis.
17 The report of 30 March 2011from Dr Jarvis the radiologist revealed that there was:
“Evidence of supraspinatus tendinopathy and a three to four millimetre intrasubstance tear. There is also a minor thickening of the subacromial bursa and minor bursa bunching on the coxacoacromial ligament. Degenerative change also noted in the AC joint. No other abnormality.”[14]
[14]PCB50
18 The plaintiff returned to work on 4 April 2011. In his statement, of 16 December 2011, he described his work as being “limited carpentry work and assisting in the supervision of the labourers”.[15] In his affidavit, of 9 December 2013, he claimed that the reason he was unable to return to normal carpentry duties was his right arm injury.[16]
[15]PCB78
[16]PCB22
19 However, in an undated and unsigned statement his employer, Paul Rhodes, referred to the plaintiff returning to work on normal duties without restriction. In addition, he said that:
“He appeared to me to be pretty fit and was he not complaining of any pain or restriction to me.”[17]
[17]PCB84
20 In his statement of 15 December 2011, Greg Waterman, who worked on the site as a builders labourer, supported Paul Rhodes insofar as he described the plaintiff as returning to work on normal carpentry work. However, he supported the plaintiff’s claim of pain in his right shoulder saying that he would complain about pain in his ribs and shoulder “pretty much every day”.[18]
[18]PCB82
21 On 11 April 2011, Dr Jarvis performed a right shoulder ultrasound and bursal injection to the joint of the right shoulder. On 4 May Dr Preena saw the plaintiff for asthma and noted “Shoulder okay.”[19]
[19]DCB 25C
22 On 16 September 2011 the plaintiff had an altercation with Paul Rhodes and was sacked. It was put to the plaintiff in cross-examination that he had billed Mr Rhodes for work performed on other sites and that he had threatened to assault him if he did not pay outstanding invoices.[20] It was also suggested that the reason he made a claim was “payback time”. However, the plaintiff denied this.[21]
[20]T24
[21]T40
23 On 20 October 2011, Dr Preena referred the plaintiff to Mr Dayananda, orthopaedic surgeon. A letter dated 20 October 2011, from Dr Preena to Mr Dayananda, was tendered which stated:
“Thank you for seeing this patient for me. The plaintiff injured his right shoulder following a fall from a ladder. He has had one Cortisone local anaesthetic to the joint without much relief. I would be grateful if you could see him for review for further management.”
24 However, when Mr Dayananda reported back to Dr Preena on 4 November 2011, he referred to the reason for the plaintiff consulting him as “right shoulder injury following a fall from a scaffold.” His clinical diagnosis was that the plaintiff “clinically appeared to have weakness in the supraspinatus. Most of the problem appeared to be related to impingement”.[22]
[22]PCB34
25 Mr Dayananda referred the plaintiff for rotator cuff strengthening exercises and he commenced this physiotherapy at the St John of God Hospital on 16 January 2012. Before attending physiotherapy at St John of God Hospital, the plaintiff had received physiotherapy from Scott Robbins in Somerville Street, Bendigo. Mr Robbins had taught him exercises to perform at home and also gave him acupuncture.[23]
[23]PCB22
26 An MRI scan of the right shoulder was performed on 23 March 2012.[24] On 28 March 2012, Mr Dayananda reported to Dr Preena with respect to this scan that it:
“… essentially shows some partial tears of the supraspinatus tendon with a mild degree of impingement. He has not been working since September last year and it’s unlikely under the circumstances that he will return to pre-injury duties.” [25]
[24]PCB 53
[25]PCB35
27 He advised the plaintiff to start occupational rehabilitation and to have ultrasound guided autologous blood injections to the partial tears of the supraspinatus tendon to see if it would help resolve his pain.
28 On 3 August 2012, Mr Dayananda reported to Dr Preena that on review:
“His range of movements has improved but he has some pain during above shoulder and forceful work. As advised, he is keen to continue conservative treatment, including modification of his job which has been happening.”[26]
[26]PCB36
29 The plaintiff continues to see Dr Preena on a monthly basis and takes anti-inflammatories and aspirin. In his second Affidavit he claimed that he had not worked since December 2013, save for three attempts to do light carpentry work. One attempt was in February 2014, replacing some weatherboards. The second attempt was on 28 February 2014, adjusting some French doors; and the third time fitting a normal door and a security door.[27]
[27]PCB31
Plaintiff’s Medical Reports
Dr Preena
30 Dr Preena provided the plaintiff’s solicitors with two reports. Both reports were short and requested the plaintiff’s solicitor to refer to his attached complete record. In his report of 25 October 2012 Dr Preena diagnosed:
“Shoulder pain. Limitation of movement. Supraspinatus injury. Shoulder pain limits his capacity to work in his usual employment and enjoy life at his pre-injury level.”[28]
[28]PCB32
31 On 28 March 2014 he reported that :
“No further treatment has been recommended by specialist care and therefore in my opinion, there is no further treatment available. The plaintiff has limited capacity to work and no capacity for light or modified duties.”[29]
[29]PCB33
Mr Richard McArthur
32 In his report of 12 December 2011 Mr McArthur concluded with respect to the plaintiff’s right shoulder that he had “wrenched it in a fall off a scaffold at work on 22 March 2011 and, as a consequence, developed supraspinatus, tendonitis and subacromial bursitis”. He also referred to the fact that a small insignificant partial thickness tear of the supraspinatus tendon was detected on the ultrasound. In addition, that the supraspinatus tendinopathy and subacromial bursitis had been complicated by the development of a capsulitis. In his opinion, the injury to the right shoulder and abdomen were the result of the fall from the scaffold on 22 March 2011. They were fresh and not an aggravation, recurrence, acceleration, exacerbation, or deterioration of any pre-existing injury or disease.[30]
[30]PCB131-132
Dr Andrew Miller
33 In his report of 27 September 2012 Dr Miller stated that:
“Clinical examination revealed a mild to moderate disability of the right shoulder due to local discomfort and limitation of movement. The underlying pathology appeared to be a rotator cuff disruption of the right shoulder with possible bursitis. The injury had stabilised. No further improvement is likely to occur. He is not capable of doing full range of is pre-injury duties. I note the plaintiff denies any previous problem with his right shoulder and therefore the injury appears to be a new injury.”[31]
[31]PCB 139-144
34 Dr Miller re-examined the plaintiff on 10 October 2013. In his report on 12 October 2013 he was of the opinion that the right shoulder injury had remained relatively unchanged. The underlying pathology was a rotator cuff disruption of the right shoulder. Treatment should include a self-managed exercise program and appropriate analgesic medication. The plaintiff was incapacitated for his pre-injury duties but capable of working with restrictions.[32]
[32]PCB 145-151
Mr John O’Brien
35 In his report of 30 January 2013, in summary Mr O’Brien was of the opinion that:
· the plaintiff had physical signs which demonstrated generalised restriction of movement of the right shoulder, which represented the presence of adhesive capsulitis of the shoulder joint;
· abduction was markedly restricted and might indicate the presence of ongoing symptomatic rotator-cuff tendinopathy;
· there was no possibility of the plaintiff returning to his pre-injury occupation as a carpenter and he would not be capable of obtaining suitable employment;
· he was “significantly restricted in relation to his general, domestic, social and recreational activities,” which would be a permanent situation.[33]
[33]PCB42-46
36 In his final report of 19 August 2014, Mr O’Brien remained of the opinion that the plaintiff would not be capable of any form of suitable employment. In addition that he would remain significantly limited in his general, social, domestic and recreational activities, and that this was permanent.[34]
[34]PCB 47-49
Dr Murphy
37 In his report of 15 March 2013, Dr Murphy diagnosed the nature of the plaintiff‘s injuries as being a right rotator cuff injury and chronic soft tissue pain in the right abdominal wall. He stated that it “is quite clear” these injuries arose out of the fall that occurred on 22 March 2011.[35]
[35]PCB 37
38 In his report of 14 August 2014, Dr Murphy described the plaintiff as having continuing right shoulder dysfunction relating to a rotator-cuff injury. He had some capacity for light duties provided that restrictions are adhered to (no lifting more than 5kg with right upper limb, any repetitive lifting, pushing or pulling with right upper limb or work using the right upper limb above shoulder or below waist height).
39 However, Dr Murphy also considered that given his previous employment history, it was extremely unlikely that the plaintiff would be able to obtain any meaningful form of work and that he was “essentially unemployable”. On a less pessimistic note, Dr Murphy stated that:
“The prognosis for his injuries and condition is reasonable, being if Mr Hopkins is not required to undertake activities which could aggravate his right shoulder condition then his condition should be quite stable”.[36]
[36]PCB 42-46
Associate Professor Buzzard
40 In his report of 15 May 2013 Professor Buzzard’s assessment was that:
“I think that Mr Hopkins did suffer from an injury to his right shoulder and the right side of his torso as a result of the accident described. With regard to his right shoulder, this is in effect a rotator cuff injury. He has had appropriate conservative treatment for that. He does have some limitation of movement in the right shoulder. This is not likely to change in the future. He doesn’t require any particular treatment for this now aside from minor oral analgesic and like medication” [37]
[37]PCB 153a-154
The Defendant’s Medical Reports
Mr Michael Dooley
41 In his report of 27 October 2014, Mr Dooley’s diagnosis was that the plaintiff had a naturally occurring degenerative rotator cuff disease to the right shoulder. He believed that in the accident on 22 March 2011, the plaintiff sustained a soft tissue injury to the right shoulder and that it involved some aggravation of degenerative rotator cuff disease. Mr Dooley described the radiological findings of tendinopathy and partial thickness tearing as being part of the degenerative process. Consequently he did not believe that the traumatic tear of the rotator cuff occurred in the accident on 22 October 2014.
42 From an orthopaedic view, Mr Dooley expected the plaintiff to note some intermittent right shoulder girdle pain. The underlying degenerative condition would continue to evolve naturally and symptoms may develop in this regard. The findings on radiological investigation of his right shoulder would not be considered unusual in a patient of his age.[38]
[38]DCB48
43 In this case, the court viewed surveillance DVDs which showed the plaintiff attending a hardware store, eating and drinking at a café and carrying out the fitting of a door. Mr Dooley was the only medical expert to view the DVS’s. In his report of 27 October 2014 he commented on the video material as follows:
“Based on the video, it was evidence that the plaintiff was able to actively move both shoulders at times in a range of motions greater than was demonstrated on former examination on October 2014. It was clear, at least for a relatively short period of time, that he was able to carry out work at and above shoulder level in terms of fitting a door, drilling, etc. From my viewing at no point was Mr Hopkins in in any obvious pain. Patients with significant symptomatic degenerative rotator cuff disease describe pain when they carry out pain at shoulder level“.
Dr Dooly also said that:
“The surveillance DVD material would not cause me to alter my opinion in terms of Mr Hopkins having degenerative rotator cuff disease in his right shoulder or sustaining a soft tissue injury in his right shoulder in the work related episode. The surveillance DVD would cause me to think that the plaintiff was able to carry out a range of activity at and above shoulder level. It would indicate that he could do light physical work and clerical Work.”
Causation and the Plaintiff’s Credit
44 As I indicated in the introduction to this judgement the plaintiff’s credit is in issue and the defendant disputed that he injured his right shoulder in the fall from the scaffold on 22 March 2011. This was despite the fact that the defendant had accepted the plaintiff’s permanent impairment claim, made weekly compensation payments and paid medical expenses. It was submitted that on the totality of the evidence the plaintiff’s lack of credibility was such that it constituted a rebuttal of the acceptance of his claim by the defendant .
Case for the Defendant
45 In making his closing submissions on behalf of the defendant, Counsel for the defendant relied in particular on the following matters:
·The plaintiff’s denial of having had any pain in his right shoulder prior to the accident.
·In his Workers Injury Claim form the plaintiff also denied having “previously had another injury/condition or personal injury claim that related to this injury/condition”.[39]
·His statement on 16 December 2011 regarding the scaffolding was inconsistent with his Affidavit of December 2011.[40]
·The plaintiff’s claim in cross-examination that he suffered pain immediately in the shoulder in the event of 22 March 2011 was inconsistent with the GP notes.[41]
·The plaintiff’s evidence that there was no photo of bruising to his shoulder or arm because there was no bruising to those parts of the body was inconsistent with his affidavit of 9 December 2013 where he claimed that he had massive bruising up both arms.[42]
·Although the plaintiff claimed that he had an x‑ray when he saw Dr Preena on 22 March 2011, there was no mention of this in the GP notes and no x-ray was produced in evidence.[43]
·On 28 April 2014 the plaintiff claimed a Centrelink benefit with respect to the right shoulder injury in which the date of onset was noted by Dr Preena to be Friday 11 March 2011, which predated the accident on 22 March 2011.[44]
·The GP notes reveal that from 4 May to 19 October 2011 there was no attendance in relation to the shoulder.
·The letter of referral from Dr Preena to Dr Dayananda of 20 October 2011 referred to the plaintiff injuring shoulder R/S following a fall from a ladder which was consistent with the incident on 24 January 2010.[45]
·Dr Preena’s records spoke for themselves and he “had clearly put in train an ultrasound of the right shoulder on 8 March 2011 with 29 March 2011 being the review date.[46]
·The plaintiff had put in his claim to get back at his employer for sacking him for submitting bills for fulltime work on the site when he had been at times been elsewhere.[47]
[39]PCB112
[40]T56
[41]PCB21
[42]T5
[43]T13
[44]DCB45A
[45]PCB 33A
[46]T58-61
[47]T40
Case for the Plaintiff
46 The plaintiff however, relied on Ansett Australia Ltd v Taylor [2006] VSCA 171. It was submitted that by accepting the plaintiff’s permanent impairment claim, making weekly payments of compensation and paying medical expenses the defendant had admitted that the plaintiff had suffered compensable injury to his right shoulder. In his closing submissions, Counsel for the plaintiff also relied on the following matters:
· The plaintiff gave evidence to the Court that he suffered pain in the right shoulder due to his fall.[48]
[48]T14
· In his sworn Affidavit of 15 December 2011, Mr Waterman recalled that the day after the accident the plaintiff showed him “a big bruise down one side of his body from the top of his shoulder to his buttocks”.[49]
[49]PCB82, para 5
· In his Affidavit Mr Waterman also recalled the plaintiff on his return to work complaining about having “pain in his ribs and his shoulder, this was pretty much every day.”[50]
[50]PCB82, para 6
· Mr Waterman did not recall the plaintiff complaining of any pain or issues prior to the incident in March 2011.[51]
[51]PCB81, para 3
· Despite a lack of contemporaneous notes from Dr Preena, it was clear that on 20 October 2011 he had referred the plaintiff for orthopaedic assessment due to the fall at work on 22 March 2011.
· While the had plaintiff denied any previous right shoulder injury an attendance for right shoulder pain does not necessarily equate to a pre-existing injury.
· The plaintiff gave his evidence as best he could in a straightforward manner and that he made appropriate concessions as required.
· All the medical practitioners who have examined the plaintiff accept that the fall from the scaffold was an incident which could cause injury to the right shoulder.
· The fall from the scaffold was clearly an incident of some magnitude as was demonstrated by the bruising to the his abdomen and the fact of a fall of several metres.
· In so far as it was submitted that the plaintiff put in his claim to get back at Mr Rhodes this was not supported by the evidence.
Finding Regarding Causation and Plaintiff’s Credit
47 Turning firstly to the authorities relating to the effect of the payment of compensation and medical expenses by the defendant. In Ansett v Taylor the Court held that acceptance by WorkCover of a worker’s claim under 98C for lump sum compensation for non-economic loss in respect of an injury resulting in impairment was not conclusive, but rather an admission that such injury had been sustained, which admission should ordinarily be regarded as very significant.
48 In Fokas v Staff Australia Pty Ltd[52] the Court of Appeal accepted in the circumstances of that case, that payment of medical and like expenses under s99 of the Act constituted an admission of the nature and effect of the relevant injury.
[52][2013]VSCA 230
49 In Ifka v Shanin Enterprises Pty Ltd[53] which is the most recent decision on this issue, the Judge in the first instance found that the plaintiff’s injury was non-organic. The Court of Appeal stated that an admission in a letter that the plaintiff suffered compensable injuries on 5 November 2011 affecting her head and neck was:
“But one piece of evidence in the appellant’s application. More central to the resolution of the appellants application was the appellant’s credibility as a witness-it being for the appellant to establish that her neck injury gave rise to impairment that satisfied the very considerable test.”[54]
[53][2014] VSCA 8
[54]Ibid, para 64
50 With respect to the appellant’s submission that payment of particular medical expenses from time to time under s99 of the Act constituted some admission of the appellant suffering compensable organic injury on 5 November 2009 the Court stated that:
“For the reasons to which we have referred to below, the proper consideration for such an admission, in the light of the whole of the evidence and in the context of whether the appellant could satisfy the at least very considerable test would not justify us in overturning the judges ultimate conclusion.”[55]
[55]Ibid, para 67
51 In this case the defendant has accepted the plaintiff’s permanent impairment claim with respect to his right shoulder and it has made weekly payments as well as paying medical expenses. Taking the authorities referred to above into account I consider that it is very difficult for the defendant now to deny that the plaintiff suffered injury to his right shoulder in the fall from the scaffold on 22 March 2011.
52 After considering the whole of the evidence, I am satisfied on the balance of probabilities that the plaintiff suffered an injury to his right shoulder on 22 March 2011 for the following reasons:
· Mr Waterman, who is an independent witness, heard the fall and turned around and saw that the plaintiff had fallen down across one of the crossbars that support the scaffold.[56]
[56]PCB82
· Mr Waterman stated in his Affidavit that the plaintiff complained of shoulder pain “pretty much every day”‘ on his return to work.[57]
[57]PCB82
· Although the GP notes do not refer to the plaintiff suffering shoulder pain until 5 April 2011, this is only a little over two weeks after the accident.
· The plaintiff had considerable bruising on his right side and I accept that at on 22 March 2011 the pain in his abdomen was his main concern.[58]
[58]DCB 26
· The majority medical opinion (other than Dr Dooley) was that the plaintiff sustained a rotator cuff injury in the fall from the scaffold.
· Mr Dooley, who considered that the plaintiff had naturally occurring degenerative rotator cuff disease of his right shoulder accepted that he sustained a soft tissue injury and some aggravation of his condition in the fall.[59]
· While none of the medical experts had the prior history of shoulder pain I have taken into account that it was not an extensive history.
[59]DCB 48
53 However, overall I was not impressed by the plaintiff as a witness. I do not accept the submission that he gave his evidence in a straightforward way. On the contrary, I accept that a number of the matters referred to above by the defendant[60] call into question his reliability and credibility. In particular , the plaintiff’s claim that he did not remember the prior complaints of right shoulder pain and his claim about complaining about right shoulder pain on 22 March 2011 and having an x-ray,
[60]Judgment segment ‘Case for the Defendant’
54 Dealing firstly with the plaintiff’s claim that he forgot about the incidences of prior shoulder pain. The fall from the ladder on 24 January 2010 took place the year before the accident and necessitated a visit to Bendigo Hospital. Falling from a ladder is not dissimilar to falling from a scaffold. Given the fact that the fall necessitated a visit to hospital, I consider that it is unlikely that the plaintiff would forget such an event.
55 With regard to the GP note of an attendance by the plaintiff for shoulder pain on 8 March 2011, this took place only two weeks before the accident. The GP note reveals that on this occasion diagnostic imaging was requested. Once again, I consider it unlikely that the plaintiff would not remember this visit. Although the plaintiff kept working, the fact that diagnostic imaging was requested by his general practitioner suggests that his right shoulder pain was not insignificant.
56 However, with respect to the GP note of an attendance on 11 January 2010, for a fall and a painful right arm, I accept that the plaintiff could have forgotten about this incident as it was noted to be an injury to the upper right arm and not the right shoulder.
57 I reject the plaintiff’s evidence that he complained about right shoulder pain on 22 March 2011 and that an x-ray was requested. There is no record of such a complaint in the GP notes of 22 March 2011 and also no record of a scan of the right shoulder being requested on that date.
58 I accept that it is more probable that the scan of 30 March 2011 was requested on 8 March 2011 as the GP notes refer to a request for diagnostic imaging of the right shoulder.[61] This conclusion is also supported to some extent by the fact that the Centrelink benefit form signed by the plaintiff refers to the onset of right shoulder injury as being 11 March 2011.[62]
[61]PCB26
[62]DCB 45a
59 With respect to Dr Preena’s reference to the plaintiff injuring his right shoulder following a fall from a ladder in his referral letter of 20 October 2011 to Dr Dayananda it is unclear whether the reference was to the incident on 24 January 2010 or 22 March 2011. However, it is clear from Dr Dayananda’s letter of 4 November 2011 that he regarded the consultation as being for a fall from a scaffold.[63]
In conclusion I accept that the plaintiff injured his right shoulder in the fall from the scaffold. However, I have taken the matters relating to the his credit into account in assessing whether or not I can accept his evidence regarding the consequences of the injury.
[63]PCB34
Pain and Suffering Consequences
Video Evidence
60 This evidence included video surveillance taken on 19 ,20, 21 and 22 February 2014. Also on 25 March 2014 and 7 April 2014. The defendant submitted that this video surveillance was inconsistent with the plaintiff having a serious injury. They relied on footage of the plaintiff:
· On 19 February at a café using his right hand to eat a sandwich and drink a coffee.
· On 20 February getting in and out of his car with no apparent restrictions or pain and driving. Also lifting the boot of his car with his right hand and removing a shopping bag also with his right hand and then carrying it into his property.
· On 22 March over a period of approximately two hours[64] fitting a security door to a house. He was seen lifting the door frame, reaching above his head with both hands numerous times, climbing a small step ladder, drilling into the door frame measuring the door, and bending over and reaching into the back of a red utility.
· On 7 April 2014 carrying a 10 litre can of paint in his right hand from a hardware store to his car. He lifted the can of paint into the boot with his right hand and then extended his right arm fully to shut the boot.
[64]A period of 50 minutes and then a trip to Bunning’s followed by a further period of 60 minutes.
61 The defendant placed the most reliance on the video footage of 22 March 2014 and 7 April 2014 which it was submitted showed a level of activity involving the defendant’s right arm/shoulder which was inconsistent with his claimed restrictions. It was also submitted that the plaintiff’s solicitors had an opportunity[65] to put the video footage to the plaintiffs medical practitioners but that they had failed to do so.[66]
[65]From 8 April 2014
[66]T52
62 For the plaintiff it was submitted that:
· There was nothing in the video surveillance which indicated he was engaging in particularly stressful activity.
· At no stage was he engaged in vigorous activity involving his right arm.
· On occasion he was seen to open the tarpaulin on his utility, using his left hand and using the drill in his left hand.
· Mr Dooley was shown the video surveillance and it did not cause him to alter his opinion that the plaintiff would probably struggle to carry out a lot of activity at and above shoulder level all the time but he would be able to carry out work in this position for periods of time at regular intervals.
· There were significant periods of surveillance where no video was obtained, or video obtained was of no forensic value.
63 The plaintiff also relied on the decision of Church v Echuca Regional Health,[67] to submit that the video surveillance needs to be seen in the contextual setting.
[67][2008] VSCA 153, paragraph 66, per Ashley JA
64 However, it is not to his credit that the plaintiff made no mention of fitting the security door in his first Affidavit where he stated that:
“I still get offers to perform renovations for other people and even small tasks such as the hanging of doors. I have to decline these offers even though I would love to perform the work, but I know it is not worth putting up with the intense increase in my right shoulder pain.”[68]
[68]PCB27, paragraph 26
65 While in his second affidavit the plaintiff admits to doing some light carpentry work including fitting a security door, his affidavit was sworn after his solicitors had been served with the surveillance material.[69]
[69]PCB31T
66 I consider that the video footage of 22 March and 7 April is inconsistent with the plaintiff’s claim that he is “unable to continue with even light carpentry work due to the pain and limitation of movement of his shoulder.”[70] However, I accept that it is not inconsistent with Mr Dooley’s opinion that the plaintiff would struggle to carry out a lot of activity at and above shoulder level all of the time but that he would be able to carry out work in this position for periods of time at regular intervals.[71]
[70]PCB31.
[71]DCB46
67 Turning now to the plaintiff’s claims of pain. In Hayden Engineering v McKinnon[72] President Maxwell set out guidelines regarding the evidentiary basis of pain assessment. It is not only what the plaintiff says about pain, it is what he does about pain in terms of taking medication and resting, and it is what the doctors say about the extent and intensity of pain and finally what the objective evidence shows about the disabling effect of pain.
[72][2010] VSCA 69, paragraph 11
68 The plaintiff claims that he still has pain in his right shoulder. The pain is across the top of his right shoulder, over the front of his right shoulder and up to his neck. It comes and goes but increases with movement of the right shoulder, particularly twisting and reaching movements. The pain in his right shoulder is worst at night . He wakes up nearly every night with pain in his shoulder. He also has headaches.[73]
[73]PCB30
69 As to treatment, the plaintiff’s evidence when cross-examined was that he sees Dr Preena on a monthly basis and takes Aspro extra strength which he buys from a supermarket. He also takes Mobic. However, he does not take Mobic on a daily basis. There can be days or weeks when he when he does not take it. He does not like to take it unless it is absolutely necessary. He has also had two cortisone injections in his right shoulder.[74]
[74]T16-17
70 This evidence regarding Mobic was not consistent with his evidence in re-examination that he took Mobic three or four times a week and Aspro extra strength pretty much every day. He would take 2 tablets dissolved, usually in the night when he got up. He would wait to see if the pain went away and if it did he did not worry, but if it persisted he would take it so he could go back to sleep.[75]
[75]T44
71 With respect to activities the plaintiff claims that his pain worsens with a whole range of activities which include lifting, pushing or pulling. He can only drive short distances, as he cannot hold his right arm for more than short periods of time without experiencing pain in his right shoulder.
72 The recreational activities he can no longer enjoy include:
· Playing the guitar and drums.
· Tennis which he played with a friend once a month.
· Doing minor renovations and wrestling with and swinging about his grandchildren.
· Lap swimming and swimming in the surf at Lorne.[76]
[76]PCB8
73 With respect to domestic activities, he is limited in the amount of lifting he can do. He cannot hang out the sheets and it is painful for him to brush his hair.[77] His partner, who is a nurse, does the vast bulk domestic activities. However, he still does most of the cooking and can lift small pots but not large ones. He helps with the shopping and does some light gardening.[78]
[77]PCB30
[78]PCB30
Finding Regarding Pain and Suffering Consequences
74 While accepting that the pain and suffering consequences of the plaintiff’s right shoulder injury are considerable, I do not, however, accept that they meet the test of being at least “very considerable” and “more than significant or marked”. While he can no longer work in his chosen profession as a carpenter on the evidence in this case:
· The only prescription medication the plaintiff takes for his right shoulder is Mobic. I accept his evidence as to the frequency of taking Mobic given in cross-examination rather than in re-examination, as being more consistent with the prescriptions recorded.[79]
[79]DCB51-54
· The pain in his right shoulder is not constant it comes and goes but increases with movement.[80]
[80]PCB30
· He has not resorted to or sought out orthopaedic surgery.
· The level of activity shown in the video is inconsistent with his claims of incapacity.
· Mr Dooley’s opinion is that the plaintiff can carry out a range of activities at and above shoulder level for period of time at regular intervals.[81]
[81]DCB50
· From an orthopaedic point of view, Mr Dooley expected that the plaintiff would note some ongoing intermittent right shoulder pain and that he would have difficulties with a lot of activity above shoulder level.[82]
[82]DCB48
· Professor Buzzard recorded as at May 2013,[83] that the plaintiff had not played active sport over the last five years. In cross-examination the plaintiff stated regarding social tennis that “I’m not missing much, I wasn’t much of a player anyhow.”[84]
[83]T29
[84]PCB153
· Professor Buzzard gave a history that he specifically asked the plaintiff about the activities of daily living namely washing, dressing, toileting and feeding himself. The plaintiff was able to do all of those things.[85]
[85]PCB153a
· Professor Buzzard was of the opinion that the plaintiff did not require any particular treatment now aside from minor analgesic and like medication.[86]
[86]PCB154
· Dr Murphy considered that the prognosis for the plaintiff’s injury and condition was reasonable and that his condition should remain stable as long as he was not required to undertake activities which would aggravate his right shoulder.[87]
[87]PCB41
· In his report of 12 October 2013 Dr Miller described the plaintiff as having a mild to moderate disability of his right shoulder due to local discomfort and limitation of movement.[88]
[88]PCB148
· Even not seeing the video surveillance, the majority medical opinion was essentially that the plaintiff could do most things but that he was restricted with activities above shoulder level.
· The only medical expert who referred to the plaintiff being significantly limited in his general social domestic and recreational activities was Mr O’Brien.[89]
[89]PCB49
75 In conclusion after considering all the evidence in this case I am not satisfied that the plaintiff has established that he has sustained a serious injury within the meaning of s134AB(37) of the Act. Accordingly, I refuse leave for the plaintiff to proceed at common law for damages.
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