Ivers v Sam Tomlins Pty Ltd
[2016] VCC 429
•20 April 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05757
| BRADLEY IVERS | Plaintiff |
| v | |
| SAM TOMLINS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 12 April 2016 | |
DATE OF JUDGMENT: | 20 April 2016 | |
CASE MAY BE CITED AS: | Ivers v Sam Tomlins Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 429 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right shoulder – pain and suffering – whether the impairment consequences are “serious” – whether what the plaintiff has retained is inconsistent with the impairment consequences being “serious”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Plaintiff granted leave to bring a proceeding at common law to recover damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Lewis QC with Mr G Coldwell | Adviceline Injury Lawyers |
| For the Defendant | Ms S Manova | Wisewould Mahony |
HIS HONOUR:
Introduction
1 The plaintiff is a thirty-six-year-old single man who was born in February 1980. He suffered an injury in 2007 in Vanuatu while working for the defendant as a tour leader of a dive group.
2 The plaintiff’s application for serious injury is based upon the definition of “serious injury” contained in sub-paragraph (a), that he has suffered a serious permanent impairment of the function of his right shoulder. The application was limited to the pain and suffering consequences of that impairment.
3 Mr G Lewis QC appeared with Mr G Coldwell of counsel for the plaintiff. Ms S Manova of counsel appeared for the defendant.
The issues
4 The defendant conceded that the plaintiff suffered an injury to his right shoulder which resulted in a permanent impairment of its function, with consequences.
5 At issue, firstly, was whether the plaintiff has a retained residual capacity to function at a level which is inconsistent with his impairment consequences being “serious”. Secondly, there were aspects of his evidence which were in contrast to film showing him at a level of activity, bringing into play a question of his creditworthiness and reliability.
6 The manner in which the application was conducted by counsel was to be commended. The issues were well defined, therefore, not requiring me to rehearse much of the evidence in any significant detail.
Some aspects of the Plaintiff’s background
7 It is necessary to set out some of the plaintiff’s background to understand the basis on which he contends that his impairment consequences are “serious”.
8 I propose to set out that background only very briefly:
·The plaintiff followed a number of occupations before developing an interest in scuba diving by 2004.
·He was successful in his application to enter a course conducted at the William Angliss College known as “Scuba Diving and Resort Management”. It would appear that he completed the course in 2005 while working part time.
·In addition to the qualification which came upon completion of that course, he qualified in other areas relevant to scuba diving. He completed courses in stress rescue, underwater photography, rescue diving, an advanced open water certificate, a deep dive course, a nitrox course, a dive master course and a diving instructor course.
9 Following his acquisition of each of these qualifications, he subsequently obtained work in the diving field:
·In 2007, he worked as a resort manager and head dive instructor at a resort in Fiji.
·In 2007, he worked for Dive Victoria on a dive charter boat operating out of Portsea on a casual basis.
·In 2007, he met Ms Sam Tomlins. She was the manager of the shop known as “Aquatic Adventures” in Rye. She purchased that business. The plaintiff developed a relationship with Ms Tomlins. They lived together in Rye from about 2007 until his relationship with Ms Tomlins came to an end around 2010. It was around that time that her business stopped trading.
·Ms Tomlins arranged for a dive group to go to Vanuatu in 2007. It would appear that it was as a result of the success of that trip that a further trip was organised. The plaintiff was appointed the tour leader. It was on that trip that he was injured.
10 The plaintiff had acquired a broad range of qualifications in scuba diving which enabled him to work in that field very successfully. It was a career path which he intended to pursue indefinitely.
The Plaintiff’s injury
11 It was on the trip to Vanuatu in about September 2008 that the plaintiff suffered injury. The plaintiff engaged in a dive onto a sunken US Navy ship known as the SS President Coolidge. He dived to a depth of 55 meters. He ascended with the other members of the group, taking care to decompress during the ascending; however, about 30 minutes after resurfacing, he experienced a dull ache in his right shoulder, which increased to more significant pain. He thought that he might have suffered ‘the bends’, that is, the accumulation of nitrogen in his bloodstream which had not been evacuated during the process of ascending to the surface during the last dive.
12 Despite expressing his concerns to Ms Tomlins, the plaintiff was asked by her to engage in a further dive the following day down to 30 meters. He was convinced that he was suffering ‘the bends’. He wanted to use a hyperbaric chamber in Port Vila, but Ms Tomlins appears to have talked him out of taking that step.
13 The plaintiff flew back to Australia on 15 September 2008. He was subsequently treated at The Alfred hospital for ‘the bends’.
The injury
14 The plaintiff was an inpatient at The Alfred hospital from 16 to 20 September 2008. He was treated in a hyperbaric chamber. He had six episodes of that treatment.
15 The plaintiff came under the care of Mr Hoy, orthopaedic surgeon, on 10 April 2010. He concluded that the plaintiff was suffering from dysbaric osteonecrosis of the right shoulder as a result of suffering ‘the bends’. He operated on the plaintiff’s right shoulder on 8 July 2010. At operation, he diagnosed that the plaintiff was suffering from avascular necrosis of the right humeral head, secondary to suffering ‘the bends’. The operation involved a right shoulder partial humeral head arthroplasty and glenoplasty, with an arthrosurface hemiCAP procedure.
16 Mr Hoy reviewed the plaintiff on 22 September and 5 November 2010. On the latter occasion, Mr Hoy noted that the plaintiff’s range of movement was quite stiff. He arranged for the plaintiff to undergo a hydrodilatation on 11 November 2010. He subsequently reviewed the plaintiff on 8 February 2011, 7 February 2012, 8 May 2012, 23 May 2012, 26 June 2012 and lastly, on 18 February 2014.
17 At the end of his treatment of the plaintiff, Mr Hoy was concerned that the plaintiff may have suffered a reaction to the metalwork of the prosthesis inserted into his right shoulder. He suggested revising the device using an alternative prosthesis. The plaintiff was not keen on having further surgery. In the end, Mr Hoy considered that the plaintiff will require a shoulder replacement in the longer term. He considered that he would not be able to undertake manual activities for the duration of his working career. He encouraged the plaintiff to engage in activities as much as was possible. He was no doubt informed by the plaintiff that he was considering joining the Victoria Police. He did not see any problem with the plaintiff working as a police officer. I will say more about this later, also in the context of the plaintiff’s application to join the Metropolitan Fire Brigade.
18 The plaintiff was examined by a number of other orthopaedic surgeons, and a general surgeon. The opinions of Mr Kudelka and Mr Troy are stale. Mr Kudelka examined the plaintiff on 9 December 2013 and Mr Troy examined the plaintiff on 12 September 2012. Counsel concentrated their submissions rather more on the opinions of Mr Hoy, Associate Professor Love and Mr Shannon. I will do the same.
19 There is very little difference in the opinions expressed by Mr Hoy, Associate Professor Love and Mr Shannon. They all agree on the critically important and relevant matters to this application. They all accept that the plaintiff suffered the injury to his right shoulder as a consequence of the dive in Vanuatu. They all accept that the surgery was an appropriate treatment measure, and they all accept that the plaintiff will require further surgery, and in all probability, a shoulder replacement. There is a consistency in their opinions regarding the plaintiff’s capacity to work and, by inference, a capacity to engage in social, recreational and domestic pursuits.
20 Mr Hoy believes that the plaintiff could work as a police officer. However, there is no analysis in his opinion which discloses what he believes the work of a police officer to entail, though he no doubt has a general understanding of that work, as any informed member of the public might. Where he and Associate Professor Love and Mr Shannon appear to part company, is that the latter two orthopaedic surgeons expressed opinions relevant to what activities the plaintiff should avoid.
21 Associate Professor Love emphasised that the plaintiff “will never” be able to engage in occupational tasks which involve heavy lifting or forceful use of his right upper limb, nor work which involves repetitive use of his right arm above shoulder height. Mr Shannon gave the same emphasis when he said that these prostheses “may not last indefinitely” and would “certainly” be vulnerable to injury[1] if the plaintiff performed strenuous or repetitive work using his right arm, and in particular, heavy lifting and work above shoulder level.
[1]I read that to mean “damage”
22 Additionally, and in the context of the plaintiff’s capacity to return to diving, Dr MacDonald, who appears to be an expert in treating decompression injuries, gave the plaintiff advice that he should not engage in any further decompression diving as at November 2012,[2] and he felt that it would be wise that the plaintiff “did not dive at all” because of the load that diving would impose on his right shoulder.
[2]The date of his report at Plaintiff’s Court Book (“PCB”) 115-116
The Plaintiff’s consequences
23 The starting point is the nature and extent of the injury suffered by the plaintiff. I am in no doubt that the plaintiff suffered a major injury to his right shoulder. It involved radical and invasive surgery to staunch the progress of the avascular necrosis, and to replace the damaged area of his shoulder with resurfacing of the humeral head with a prosthesis.
24 Whilst it has returned the plaintiff to a reasonable level of functioning, he will require a shoulder replacement at some stage in the future. He might require an intermediate level of revision contemplated by Mr Hoy because of his reaction to the metalwork, although, the plaintiff has not seen Mr Hoy for just over two years, which I assume means that the plaintiff is able to tolerate what bodily reaction he experiences to the metalwork.
25 The following is a summary of the pain and suffering consequences which the plaintiff contends are both permanent and serious:
·He experiences daily pain in his right shoulder. On a scale, the pain is about 3 out of 10, and increases to 7 out of 10 if he suffers any material aggravation of his right shoulder.
·Rolling over onto his right shoulder during the night when he is asleep can increase the pain he experiences. He is woken a couple of times a night by the onset of increased pain. After waking, he finds it difficult to return to sleep.
·His right shoulder is very painful in the morning. He assumes it is because he has been lying on it during the night.
·Engaging in repetitive tasks with his arm above shoulder height can increase the pain he experiences.
·His range of movement is limited, in particular, to movements overhead, behind his back and raising his right arm from beside his body to shoulder height and above.
·He uses Panadol or Nurofen about every second day for pain relief.
·Recently, he has obtained treatment from Mr Cameron Blewett, osteopath. He sees him on Saturday mornings for treatment for his right shoulder, and for general aches and pains. For example he described the general aches and pains as mostly affecting his legs.
26 The following is a summary of the loss of enjoyment of life consequences which the plaintiff contends are permanent and serious:
·He cannot engage in scuba diving, either as a recreation or as a vocation to the extent he did before suffering injury, and to the extent he intended had he not suffered injury.
·He has been able to work in the diving industry rather more as a crew member than as a teacher or dive group guide.
·He is able to undertake domestic tasks, but tends to do so more with his left hand and arm. For example he relies more on his left hand and arm when mowing lawns.
·The plaintiff applied to enter the Victoria Police and the Metropolitan Fire Brigade. Although he made a formal application for both occupations, my impression is that he did not advance very far beyond making those formal applications. He has not undergone any medical examinations to determine whether he is physically fit enough to enter either occupation, particularly because of the problems he encounters with his right shoulder.
27 I should expand upon the plaintiff’s training, experience and work in the diving industry. It was my impression that he intended to pursue work in that industry as his primary career goal. It was also my impression that whenever time allowed, he would go on a dive. He had a particularly keen interest in doing what is described as the “Bottom of the Bay” dive with his friend, Michael Steinman. It is a dive to a depth of 100 meters. I was left with the understanding that it is a dive which represents a major achievement by individuals who are very serious about scuba diving. The plaintiff has undertaken a handful of shallow dives. It was my impression that his pursuit of scuba diving and diving in general is almost lost to him.
28 Counsel for the plaintiff submitted that if I accepted the plaintiff’s evidence of the pain and suffering and loss of enjoyment of life consequences, then I should be satisfied that these impairment consequences are “serious”.
29 Counsel for the defendant submitted that it is necessary to undertake a balancing exercise by assessing what the plaintiff has lost, but being informed of what he has lost by what he has retained. This is a thesis enunciated by Ashley JA in Dwyer v Calco Timbers Pty Ltd (No 2).[3] It is a most useful thesis which I have almost universally applied in the determination of applications like this; that is, those which are limited to pain and suffering and loss of enjoyment of life consequences.
[3][2008] VSCA 260
30 Counsel for the defendant submitted that whilst the plaintiff has the consequences which I have summarised, when they are considered in the full context of the plaintiff’s post-injury life, I cannot conclude that the impairment consequences are “serious”.
31 Counsel for the defendant, in a well-structured and extensive exploration, referred me to many aspects of what the plaintiff has retained. I do not propose to summarise all of them, but only those which I consider to be material:
·Despite suffering a major injury, the plaintiff continued, as mentioned, working in the dive industry, short of teaching and undertaking dives with groups. He lost his last job in that industry with Dive Victoria (stationed at Portsea) because it was alleged that he had stolen equipment from the business. He was charged with criminal offences which were later withdrawn.
·He could work rather more as a deckhand because he is able to disassemble and reassemble equipment and carry it for the use of divers. He could undertake teaching and diving with dive groups if he had someone to assist him in doing the hands-on manual work.
·He can otherwise undertake shallow dives.
·Otherwise, he has worked without any significant breaks in a number of occupations up to the present time. He presently works for a fire protection service on a full-time basis which involves installing, maintaining and testing fire safety equipment. He is able to lift and carry fire extinguishers.
·He has been a member of a CFA unit at Research for the last ten years. He has not gone out on the fire truck. When he has been in a position to answer a fire call he has gone out in a car. He has been to one, of the last 110, callouts. When he answered that one call, he used a car to discharge the duties assigned to him.
·He played half a season of basketball with a team in a local competition in Torquay. He did that when he was living in Point Lonsdale.
·He has taken up snowboarding. He denied that he has suffered any falls onto his right side. There was no evidence of where he goes snowboarding and how often, nor any evidence of his competence and what sort of ski slopes he snowboards on.
·He has taken up cricket. He plays with the Eltham Collegians in a “B” side in the “D” grade Diamond Valley competition. He played in the cricket season of 2012-2013 with a two-year layoff, and then returned in 2015-2016. Film was shown to the plaintiff which was entirely directed to two days, where he was shown batting, bowling and fielding. I will return to the films shortly.
·He has taken up four-wheel driving. He owns a four-wheel-drive. He belongs to a four-wheel-drive club. He attends monthly meetings of the club. He has been out on four-wheel-drive expeditions on up to ten occasions, mostly at the Toolangi State Forest. When he goes out overnight, he sleeps in his four-wheel-drive.
·He has been able to drive significant distances from the places where he has lived to places where he has worked on the Mornington and the Bellarine Peninsula. He presently lives with his parents at Eltham. He is able to drive to his place of employment, and to localities where he is required to undertake his work.
·His applications to Victoria Police and the Metropolitan Fire Brigade must mean that he believes he can undertake that work. Mr Hoy believed that he could work as a police officer.
·He lives at home with his parents so it is unlikely that he engages in any significant domestic activities.
·At present, he is having no medical treatment nor is he taking any prescription medication. His treatment is limited to osteopathic treatment.
32 I will next turn to the films taken of the plaintiff. I propose to give a very short summary of those films. My reason for giving only a short summary is that there were only isolated aspects of the films which were emphasised by counsel for the defendant.
33 The first film was taken on 30 January 2016. The relevant parts that are:
·Between 1.05pm and 1.53pm, the plaintiff swung a bat fully, and at one time raised his right arm crooked at the elbow to fold down his shirt collar.
·At 1.53pm, 1.56pm, 1.57pm and 1.59pm, the plaintiff raised his right arm crooked at the elbow to his head level.
·At 2.00pm, he clapped his hands in front of his body.
·At 2.03pm, he carried a water cooler in his right hand beside his body onto the field, and then changed it to his left hand before raising it onto a chair on the field.
·At 2.48pm to 4.08pm, the plaintiff was batting at the crease or at the non-strikers’ end. His batting style appeared to me to be rather more of a short backswing. At one point he took off his helmet using both hands.
34 The second film was taken on 6 February 2016. The relevant parts of it are:
·At 2.11pm, 2.23pm, 2.58pm and 3.14pm, the plaintiff raised his right arm to his head with his right arm crooked or mostly crooked at the elbow.
·At 1.53pm, 1.57pm and 3.06pm, the plaintiff spontaneously raised both arms to a full vertical position as if he was appealing against the batsman to the umpire.
·At 2.10pm, the plaintiff threw a ball rather more from the elbow in a slinging motion and only a short distance.
·At 3.05pm, the plaintiff bowled an entire over of deliveries at a right arm over the wicket method. It looked to me as if he was bowling at a medium or slow-medium pace.
35 Under cross-examination, the plaintiff admitted that he was the person shown in the film.
·He admitted that he is able to move his right shoulder through the range of movements shown in the film, but not without experiencing some pain.
·He admitted that at one point he was shown in the outfield.
·He denied that he threw the ball over arm, but almost always underarm.
·On the one occasion that he was shown throwing the ball, it was a throw from the elbow as described above. He said that he fielded mostly on slips, but denied that he ever dived to catch or field a ball.
·He admitted that it is possible during one match that he bowled 13 overs.
·He had batted at first drop, but was put down the batting order to number seven. It was my impression that he regarded himself as being an ineffectual batsmen, although, he was primarily a batsmen in his team.
36 Counsel for the defendant submitted that the purpose in showing the films was not to suggest that the plaintiff had been caught out engaging in activity or a level at activity which he had denied. In fact, the plaintiff admitted in his affidavits to returning to all of the sporting and recreational activities except for basketball. The purpose of showing the films to the plaintiff was to demonstrate that he has a full, free and unrestricted use of his right shoulder, and despite his loss of capacity to pursue diving as a recreation and career, he has otherwise replaced that loss with other sporting and recreational activities.
Conclusions
37 Firstly, the plaintiff has suffered a major injury which has been treated effectively thus far. However, there is the significant cautionary opinion expressed by Associate Professor Love and Mr Shannon regarding what physical activities the plaintiff should avoid doing, and the equally significant cautionary opinion of Dr MacDonald that the plaintiff should give away diving.
38 Secondly, the plaintiff is at a real risk that the prosthesis will reduce in effectiveness in terms of providing the plaintiff with a mobile right shoulder. This may result in the eventual need for a right shoulder replacement. As a matter of general knowledge, major surgery of that kind will expose the plaintiff to the risks ordinarily associated with an anaesthetic and even the small risk of an adverse surgical outcome; however, there is no direct evidence of what that surgery will involve, when it is likely to be undertaken, and what the probabilities are of the plaintiff having a shoulder which will function normally.
39 Thirdly, the plaintiff has completely lost his capacity to engage in the diving industry to the extent that his training and experience would have allowed. There was no challenge to the extent of the plaintiff’s training and experience and his capacity to undertake work at a reasonably sophisticated level in the diving industry.
40 Fourthly, I accept the evidence of Dr MacDonald that the plaintiff should not engage in diving at all because of the risks of the imposition of loading on his right shoulder, which I infer will cause further damage to an already significantly damaged right shoulder.
41 Fifthly, I accept the plaintiff’s evidence of the daily pain, interference with sleep and interference with his mobility in terms of general, social, domestic and recreational activities which he deposed to in his affidavits and which he confirmed in his oral evidence when challenged under cross-examination.
42 Sixthly, the nature and extent of the impact that the injuries have had upon the plaintiff’s life in general, and in terms of pain and suffering and loss of enjoyment of life, are confirmed by the affidavits of Mr Michael Steinman,[4] Ms Allison O’Toole, [5] Mr Chris Gilbert[6] and Mrs Heather Ivers.[7] Each of the deponents deposed to the passion which the plaintiff had for diving.
[4]PCB 39-44 and 44a-44g
[5]PCB 65-69
[6]PCB 85-89
[7]PCB 89a-89f
43 Seventhly, what the plaintiff has lost cannot be cast as just “marked” or “significant”. The loss of a central part of his vocational and recreational life of itself is near immeasurable in terms of this man’s life and the career path which he had carved out for himself.
44 On the face of each of these points, it occurs to me that the pain and suffering and loss of enjoyment of life consequences suffered by the plaintiff are “serious”.
45 However, whether what he has lost equates with those consequences being “serious” needs to be tested against what he has retained.
46 Firstly, I consider that to submit the plaintiff could engage in some aspects of diving in the diving industry is to completely miss the point. Being able to be a crewmember is a relatively insignificant part of the whole of the work which the plaintiff was previously capable of doing. Preparing equipment and being on the boat while others teach and lead a diving group could hardly be described as being consistent with what the plaintiff was doing previously. It is easy to understand why the plaintiff is frustrated and feeling the loss of that career path and recreation. Furthermore, the opinion of Dr MacDonald is a very telling one, that is, that the plaintiff simply should not engage in diving.
47 Secondly, the fact that the plaintiff has been able to work in alternative forms of employment is more to his credit than something which weighs against him. He struck me, on my analysis of the whole of the evidence, as being well motivated and very much the stoic. In the face of how grave his injury was, he has engaged in work which involves lifting and carrying, and sporting activities which appear to me to be the sorts of physical activities which Associate Professor Love and Mr Shannon suggest the plaintiff should not engage in. The fact that the plaintiff has engaged in basketball, snowboarding and cricket risks further injury and may not be wise.
48 Thirdly, I do not accept that the recreational pursuits he has returned to represent a replacement, in the fullest sense, for what he has lost, and therefore, that what he has lost is in some way reduced or of less weight or relevance.
49 Fourthly, some of the recreational activities the plaintiff has undertaken do not appear to me to bring his right shoulder into play very much at all. There was no cross-examination of any significance to suggest that being a member of the CFA or going four-wheel driving places his right shoulder under any particular stress or strain. Nor does the mere fact that he is able to drive distances in his car suggest that driving, of itself, is contraindicated for someone with a shoulder injury.
50 Lastly, I do not accept that the cross-examination, as properly undertaken and as extensive as it was, impacted upon the plaintiff’s creditworthiness and reliability. My general impression of the plaintiff was that he gave a truthful account of the nature and extent of his injury and its impairment consequences.
51 After engaging in the balancing exercise that I am called upon to undertake in this application, I am satisfied that impairment consequences contended for by the plaintiff are “serious”.
Orders
52 I order that the plaintiff be given leave to bring a proceeding at common law to recover damages.
53 I will now hear the parties on the question of what other orders are required.
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