Kaklikos v Victorian WorkCover Authority
[2022] VCC 2243
•16 December 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-21-04952
| JOHNNY (aka JOHN) KAKLIKOS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 22 June 2022 | |
DATE OF JUDGMENT: | 16 December 2022 | |
CASE MAY BE CITED AS: | Kaklikos v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2243 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right shoulder – pain and suffering only – causation
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram KC with Dr J Plunkett | Slater and Gordon Ltd |
| For the Defendant | Mr B R McKenzie | IDP Lawyers |
HIS HONOUR:
1This is an application for leave to bring damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Ranmalu Pty Ltd on or about 21 July 2017.
2The plaintiff seeks leave to bring damages in relation to pain and suffering only. The plaintiff brings this application pursuant to s325(1)(d) of the Act.
3There, “serious injury” is defined, relevantly, as meaning:
“permanent serious impairment or loss of a body function … .”
4The plaintiff’s application for a serious injury certificate is made for the impairment of his right shoulder.
5On 21 July 2017, the plaintiff was employed as a truck driver and fell into a pit at the rear of his truck, breaking his fall with his right arm, thus suffering the injury.
6Pursuant to s325(2)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, as at the date of the hearing, as being “more than significant or marked” and as being “at least very considerable”.
7I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function.
8Subsection (2)(h) provides the consequences which are psychologically based after being wholly disregarded in paragraph (a) cases.
9I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Petkovski v Galletti.[2]
[1](2005) 14 VR 622
[2][1994] 1 VR 436
10Defence counsel placed in issue, essentially, the following matters:
· Identification of the injury in the context of it being an aggravation of a pre-existing injury to the right shoulder
· Causation
· Identifying the consequences of the subject right shoulder injury (“the disentanglement issue”)
· Whether the consequences from the injury are “serious”.
11The plaintiff relied upon two affidavits, sworn 7 July 2021 and 2 June 2022, and an affidavit of his wife, Michelle Kaklikos, sworn 2 June 2022.
The Plaintiff’s evidence
12The plaintiff swore he was born in September 1962 and was married with two children, aged twenty-seven and twenty-five years.
13The plaintiff further swore that, in 2015, he suffered an injury to the left shoulder in a café, when a faulty chair broke underneath him. He recovered damages in respect of the injuries.
14Thereafter, he swore:
“8.I developed right shoulder pain during 2016, although the pain which I then suffered was on an entirely different scale to that which I suffer as a result of the injuries which are the subject of this proceeding. I did attend my local GP Dr Ogaji in Point Cook and was referred for an ultrasound of my right shoulder on 23 April 2016 which I understand demonstrated a full thickness tear of the supraspinatus tendon measuring 16mm x 17mm with some fluid in the subacromial bursa with bursal bunching on abduction.
9.I was referred to an orthopaedic surgeon Mr Hooper who offered me alternatives of cortisone injection or surgery, both of which I declined. Mr Hooper offered a third alternative, namely rest, which I pursued by way of avoiding placing strain on my right shoulder wherever it was possible for me to do so whilst remaining in employment.”[3]
[3]Plaintiff’s Court Book (“PCB”) 25
15Thereafter, the plaintiff described the mechanism of injury as follows:
“16.As my right foot descended into the pit, my left leg buckled underneath me and I went forward with my right arm to try and break my fall. I was initially in a state of shock and aware of pain particularly affecting my left knee and lower back but with the passage of time those injuries have gradually resolved whereas the injury sustained to my right shoulder continued to deteriorate and become increasingly painful with the passage of time.
17. …
18.I consulted my GP Dr Huq at Point Cook Medical Centre. Dr Huq referred me for an ultrasound and x-ray of my right shoulder which were performed on 25 July 2017 and my understanding is that a tear in the supraspinatus tendon measuring 26mm x 23mm was identified although other tendons were not visualised in the scan. I understand that the A/C joint was found to be degenerative changes but no joint effusion was present.
19.Before treatment of my right shoulder injury could advance any further, I was involved in a further accident whilst attending McDonald’s at Point Cook on 18 August 2017. I stepped onto a painted bitumen surface in wet conditions which caused me to slip and suffer a right knee injury. The need for treatment of that right knee injury led to delay in the treatment of work-related right shoulder injury.
20.GP Dr Huq referred me to an orthopaedic surgeon Mr Rowan Price on 21 August 2017 and after radiological investigation, on 25 August 2017 Mr Price performed an open repair of the right quadriceps tendon which was found to be torn and this was the subject of repair as was damage to the retinaculum. I continued to be reviewed on a regular basis by Mr Price through until 22 May 2018 when I was discharged from his care. I subsequently brought Court proceedings against McDonald’s at Point Cook and such proceedings were resolved in April 2020.
21.Following the effective treatment of my right knee injury, I was referred by GP Dr Huq to another orthopaedic surgeon Mr Brett Jackson for treatment of my right shoulder injury. My understanding is that Mr Jackson diagnosed an acute on chronic rupture of the supraspinatus tendon in my right shoulder and recommended arthroscopy to try and repair the supraspinatus tendon.
22. …
23.The surgery was approved and performed by Mr Jackson on 27 February 2018 and my understanding is that it involved a right shoulder arthroscopy, subacromial bursectomy and decompression of the A/C head as well as debridement of a SLAP lesion. At surgery a long head of biceps tear was noted and a tenotomy was performed in addition to the rotator cuff repair.
24.Post-operatively I underwent extensive physiotherapy treatment and proceeded to make a reasonable recovery attending Mr Jackson on a number of occasions for him to monitor my progress.
25.I was able to return to my truck driving work in the latter part of 2018 and fortunately I have been able to continue my work down to the present day. I have been able to continue such employment because I am protective of my right shoulder. I have taught myself to perform all of my work duties by protecting my right shoulder. I take particular care, for example, getting into and out of the truck and in opening and closing container doors. I restrict my lifting of weights and try to test anything that I am required to lift to ascertain whether it is too much for me and if so I leave the lifting for somebody else to perform.
26.However, I have continued to suffer from ongoing pain and suffering consequences. There are the restrictions in my work capacity and that work capacity would be very vulnerable in the event that I suffered some other form of injury.
27.I am no longer able to undertake any manual work involving right shoulder strain at home either. I have taught myself to be protective of my right shoulder in my domestic life as well as my work life.
28.When sleeping, I used to stretch my arm under the pillow but can no longer elevate my right arm for any length of time and have had to alter my sleeping position. I find that the pain in my right shoulder is noticeably worse if I overextert (sic) myself physically and during periods of cold weather. When the pain levels in my shoulder increase, I use over the counter medications such as Panadol although I do try to avoid taking too many tablets. As a result of my shoulder injuries not only has my sleep been adversely impacted, so too have my intimate relations with my wife to a significant extent.
29.Around the house, I am no longer able to mow the lawns and have had to engage Jim’s Mowing for this purpose. I used to wash my own car but no longer do so and take it to an automatic carwash. Any task which requires the elevation of my right arm from the shoulder, I try to avoid as it aggravates my shoulder pain.
30.I previously prided myself on my upper body strength. I am a solidly built man and use to do exercises such as push-ups to build my upper body strength. I started out at 10 push-ups at a time but gradually worked my way up to far greater numbers. Despite the condition of my right shoulder as disclosed in the ultrasound of 23 April 2016, I was able to continue to perform my push-ups right through until the injuries which are the subject of the current proceeding.
31.The most important issue for me now is to always remember to be protective of my right shoulder without which I am at risk of suffering further injury and medical treatment including further surgery. I no longer do an (sic) exercises that help build my upper body strength.
… .”[4]
[4]PCB 27-30
16In his second affidavit sworn 2 June 2022, the plaintiff swore that, in addition to the injuries he suffered in 2015 in the café and the injuries he sustained while attending McDonalds on 18 August 2017, he also recalled there had been a further claim against Crown Casino in approximately 2014, whereby he injured his neck and received a settlement in the vicinity of $10,000 or less.
17Further the plaintiff swore:
“5.I have continued to drive for Ranmalu Pty Ltd one or two days a week using a truck owned and operated by Pateras Transport. This driving involves the loading and unloading of containers and so there is no manual handling component of the work for me.
6.I have been looking for additional work being light courier work involving the transport of light medical supplies but to date have not been able to obtain a courier position.
7.The pain in my right shoulder is constant and variable. I am never free of right shoulder pain. The level of pain on a scale of 10 varies from 4 to 9 depending on my activities.
8.I use Panadol most days and if the pain is particularly severe, 2 Panadeine Forte tablets which I would use approximately three days a week.
9.I have obtained in recent times as businesses have opened up post-Covid, osteopathic treatment from Kevin Williams in Point Cook. I find that I benefit from this treatment for about two or three days before the pain starts building up again.
10.When I am undertaking maintenance and other chores such as cleaning at home, I try to protect my right shoulder so far as I can. The more strain I place upon the shoulder the greater the degree of pain that I am in.
11.I continue to have disturbed sleep patterns because of right shoulder pain and I move around the bed until I find a position where the right shoulder does not hurt as much. I only get about five or six hours of sleep a night, often interrupted by pain. My intimate relations with my wife continue to be adversely impacted to a significant extent by reason of my right shoulder symptoms.
12.I still use Jim’s Mowing to look after the lawns. I continue to take my car to an automatic car wash for washing so as to avoid straining my right shoulder.
13.As mentioned in my earlier Affidavit, I prided myself on my upper body strength in the past but am no longer able to undertake push-ups because of the condition of my right shoulder. As mentioned in my earlier Affidavit, I started at 10 push-ups and built to much greater numbers over a period of time. I am no longer able to undertake this activity at all.
14.I continue to find that the best way for me to protect my right shoulder is to avoid placing undue strain upon it.”[5]
[5]PCB 33-35
Cross-examination of the Plaintiff
18The plaintiff vaguely remembered seeing Dr David Kennedy for the defendant in August 2018. He did not remember telling Dr Kennedy that he had not suffered any prior right shoulder injuries or problems.
19Further, the plaintiff did not recall seeing Dr Gary Davison for the defendant in 2018, and when it was put to him he had denied any history of previous problems with his right shoulder, he stated, “I can’t see myself saying that, but anyway”.[6]
[6]Transcript (“T”) 12, Line/s (“L”) 16-17
20It was further put to him, when he completed his claim for compensation on 16 October 2017, that it must have been his wife who stated that he had only had a previous injury to his back.
21In terms of a history given to his own medico-legal practitioner, Dr Joseph Slesenger, on 7 March 2022, he confirmed he had remained at work after the injury on 21 July 2017, but ceased work due to a subsequent injury at McDonalds in August 2017. He did not then return to work until mid-2018.
22Thereafter, it was put to the plaintiff:
Q:“Then he says that you did not return to until mid-2018. That’s correct, isn’t it? ---
A:That’s right.
Q:Then he says, ‘On returning to work he was able to return to pre-injury duties working pre-injury hours and remains at work performing his normal duties working up to 50 to 60 hours a week.’ That’s what you told Dr Joseph Slesenger, isn’t it?---
A:As far as I remember.
Q:So as at 7 March 2022, you were working 50 to 60 hours a week. Is that right?---
A:Yes.
Q:Then he says that you told him that you’d adapted to your role, that you ‘tend to be more reliant on your left side, particularly when climbing in and out of the truck and when closing the gates.’ Did you tell him that? ---
A:Correct.
Q:And did you tell him that you are ‘occasionally supported by co-workers when closing gates, e.g., at pick up and delivery sites’?---
A:Correct.” [7]
[7]T15, L16 ꟷ T16, 1
23Further, it was put:
Q:“… Dr Slesenger says that you told him that you avoid taking time off work?---
A:Correct.
Q:And this is even though you had periodic exacerbations or flare-ups of your symptoms. Did you tell him that?---
A:Yes, as far as I know, yes, it sounds right.”[8]
[8]T16, 6-10
24Thereafter, it was put:
Q:“In terms of the job requirements, [Dr Slesenger] has described those for us at p.108 of the court book - you don’t have this in front of you, Mr Kaklikos. Dr Slesenger describes this, he says that your duties involved driving a semitrailer, securing containers, closing container doors. Just pausing at those things, they were all activities you were required to do before 21 July 2017. Is that right?---
A:Yes.
Q:And you still do all of those activities after 21 July 2017 and right now, I mean?---
A:Yes. Yes, very carefully.
Q:He says in the next paragraph that you are not required to load or unload containers and you are not required to connect any pneumatics, electrics or hydraulics, although you were required to connect your prime mover to the trailers?---
A:That’s correct.
Q:All that was the situation before 21 July 2017. Is that right?---
A:Mm’hm.
Q:And all of that is the situation after 21 July 2017 and right now, isn’t it?---
A:Yes.
Q:Then he says in the next paragraph, ‘He advised that he usually attends five to six delivery pick-up sites per day at each delivery site." Just pausing there, attending five to six delivery sites per day, do you agree that was the situation before 21 July 2017?---
A:Yes. Yes. It varies, it could be three to five - three, two, four - it depends on how long they take.
Q:And currently is it still five to six delivery pick-up sites per day?---
A:It varies. I can’t say that’s all the time. It depends on how far the delivery point is.
Q:He says that each delivery site you were required to climb in and out of the truck. That was the situation before 21 July 2017, wasn’t it?---
A:Yes.
Q:He says that you were ‘usually required to open and close the doors (barn doors) and to secure the container with four pins at each corner.’ That description of opening and closing the doors, which are called barn doors, that was the situation before 21 July 2017, wasn’t it?---
A:Yes, it was.
Q:And that’s the situation after 21 July 2017, isn’t it?---
A:Yes, it is, and it depends where I’m going. A lot of places, where you back up on to the docks, they open and close the doors themselves.
Q:They open and close the doors themselves for everyone, don’t they?---
A:Yes, well, when you’re on a dock, yes, they usually open and close the doors themselves (indistinct) unloading or loading.”[9]
[9]T16, L11 ꟷ T17, L27
25Further on, it was put:
Q:“Then he says, ‘Over shoulder reach occasionally.’ Was that part of your duties when you were driving the truck for the company, that occasionally you’d reach over your shoulder?---
A:Occasionally, and being very careful.
Q:So was it the situation before 21 July 2017 that you were reaching over your shoulder occasionally and you are reaching over your shoulder occasionally now?---
A:It was a lot easier before 21 July than it was after 21 July.
Q:Then he says you’d ‘forcefully push and pull occasionally, for example, when opening container doors.’ Did you forcefully push and pull occasionally when opening container doors before 21 July 2017?---
A:Yes. Yes.
Q:And you do that now too, don’t you?---
A:Yes, but sometimes if I can’t close them I get other guys to help me.
Q:As you’ve said in your affidavit material, you’ve said in your second affidavit - this is paragraph 5 - you’ve said that you’ve continued to drive one or two days a week using the truck owned by Pateras Transport. That’s an affidavit sworn 2 June 2022. You’ve agreed with me that when you saw Dr Slesenger on 7 March 2022 you were driving 50 to 60 hours per week. Would you agree then that your affidavit where you say that you’re driving one or two days a week is incorrect?---
A:No, I wouldn’t say it’s incorrect.
Q:What’s changed? Did you change from driving 50 to 60 hours a week when you saw Dr Slesenger on 7 March 2022?---
A:It’s just a minor business. It’s all up in the air, our game. Sometimes you did 40 hours a week, sometimes you only did 20 hours a week; it depends on the work that they’ve got.
Q:And sometimes 50 to 60 hours per week?---
A:Yes, that has happened in the past.
Q:So when in your affidavit you say that you drive one to two days a week, this is an affidavit of 2 June 2022, that limit of one to two days per week is due to availability of work, isn’t it?---
A:Correct.
Q:And if there is more work available, say 40 hours’ worth, you’d do it. Is that correct?---
A:I’d certainly try.
Q:You were able to do 50 to 60 hours per week when you saw Dr Slesenger on 7 March 2022, so you’d do 50 to 60 hours per week if that was offered to you or if that was available, wouldn’t you?---
A:I’d certainly try.
Q:I suggest to you that any reduction in your hours is due to a reduction in demand for the services, not your right shoulder. Do you understand the difference? There’s less work available, it’s not your right shoulder that’s causing the problem. What would you say?---
A:I’d just go with what’s available.
Q:And you’ll work whatever hours are available. Is that right? ---
A:Yes, if they give me the work, yes.”[10]
[10]T19, L4 ꟷ T20, L21
26Counsel put to the plaintiff a record from his treating general practitioner at Point Cook Medical Centre on 19 August 2017. It recorded:
Q:“… ‘Slipped outside McDonald’s at Sanctuary Lakes. Taken by ambulance to RMH’ which is Royal Melbourne Hospital, and the doctor has recorded, ‘Right knee and right shoulder injury,’ and then records, ‘Fall yesterday. Pain and swelling, right knee. Tender lateral collateral ligament and supra patellar.’ Then, ‘Right supraspinatus tear. Near complete tear in the past. Had a fall yesterday, now pain worse abduction and internal rotation.’ Firstly, do you recall seeing Dr Thomas on 19 August 2017?---
A:I don’t recall it, but obviously I did.
Q:So that would - the doctor has recorded there that you had two problems, one was the right knee and one was the right shoulder, and the doctor says in that notice you can see, ‘Pain now worse abduction and internal rotation.’ So your right shoulder - firstly, do you agree that you had an injury to your right shoulder when you fell at McDonald’s?---
A:Did I have an injury from McDonald’s on my right shoulder?
Q:Yes?---
A:I actually can’t even remember my shoulder. I know I hurt my knee bad, but I can’t remember my shoulder giving me trouble.
Q:The reason I ask is because the doctor has that note about the pain being worse and also seems to have done some sort of an examination of your shoulder, checking out abduction and internal rotation, and has suggested an ultrasound for your right shoulder?---
A:Mm’hm.
Q:So do you think you suffered an injury to your right shoulder in the fall at McDonald’s?---
A:I don’t think so.”[11]
[11]T21, L9 ꟷ T22, L5
27The plaintiff was then asked:
Q:“When it comes to your various conditions, various other injuries, you’ve referred in your affidavits to having a fall at the Phoenix Hotel at Point Cook and you thought it was 2015, and you had an injury to your left shoulder. Do you remember describing that or do you remember putting that in your affidavits?---
A:I remember the fall.
Q:As a result of that fall I suggest you had ongoing problems with your left shoulder. Would you agree?---
A:Yes. Yes, I did.”[12]
[12]T22, L6-14
28Counsel then put to the plaintiff that he had suggested to various doctors “along the way” about ongoing problems with his left shoulder, such as Dr Roy Karna, in November 2018, Dr Kennedy, whom he saw in August 2018 and Mr Russell Miller in 2021. The plaintiff could not remember telling any of these doctors about ongoing problems with his left shoulder. It was put:
Q:“… I suppose if the doctors have recorded these things in their report you wouldn’t disagree that you told them. You just can’t remember, is that the situation?---
A:I honestly can’t remember them, yes.”[13]
[13]T21, L15-189
29It was further put that the plaintiff had seen psychiatrist, Dr Nathan Serry, in August 2018, and also in February 2022, and that he had given a history of low mood attributable to “multiple physical symptoms, including bilateral shoulder”,[14] and he was asked:
[14]T23, L26-27
Q:“… Do you recall saying that to Dr Serry?---
A:I don’t.
Q:If he’s recorded that in February 2022 you wouldn’t disagree with it, would you?---
A:If he’s recorded it, yes, I just can’t remember saying it to him, that’s all.
Q:So as at February 22, both shoulders were causing you problems. Was that the situation?---
A:That’s when? February?
Q:Yes?---
A:What year?
Q:22, 2022. This year?---
A:Yes - I can’t remember, honestly.
Q:Then he says, going back to your multiple physical symptoms, he also says that you had ‘bilateral knee’, so both knee problems. Do you recall saying that to Dr Serry?---
A:Well, I have had trouble with both knees. I probably did. I just can’t remember it, that’s all.
Q:And both knees are still a problem right now, aren’t they?---
A:Yes.
Q:He says that you had ‘right-sided low back pain.’ Do you recall telling Dr Serry that?---
A:No.
Q:Do you still have right-sided low back pain?---
A:Now and again, yes.” [15]
[15]T23, L21 – T24, 16
30Further on, it was put:
Q:“I suggest to you that you’ve had back problems from time to time ever since the Crown Casino episode. Would you agree with that?---
A:Yes, I would.
Q:If I suggest that those problems have continued to give you some difficulties from time to time, what would you say?---
A:Time to time.
Q:You brought a legal action against Crown and you settled that action, didn’t you?---
A:Correct.”[16] …
[16]T26, L27 – T27, L3
31It was then put:
Q:“… between the incident on 21 July 2017 … and the fall at McDonalds you had to work, hadn’t you?---
A:Yes, very carefully.
Q:Then after the incident at McDonald’s on 18 August 2017 you ceased work altogether, didn’t you?---
A:That’s correct.
Q:Then you brought a legal action in relation to your fall at McDonald’s, didn’t you?---
A:Yes.”[17]
[17]T27, L10-17
32Further, the plaintiff agreed orthopaedic surgeon, Mr Iain McLean, had been retained to give an opinion to his then solicitors, Nowicki Carbone, about the injuries suffered in the McDonalds’ fall on 18 August 2017. The report was dated 17 July 2018. He was asked:
Q:“… Mr Kaklikos, this is a report of 17 July 2018 and Mr McLean has listed a number of things called Current Complaints/Symptoms, and … the doctor has recorded that you told him you’ve, ‘Made slow progress with constant awareness of your right knee, feeling there was limited movement and ongoing weakness and insecurity’. Did you tell Mr McLean that in July 2018?---
…
A:If it’s on there, I mean, but I can’t recall it, no.”[18]
[18]T28, L4-15
33Then the plaintiff was asked to read the report of all the current complaints and symptoms and was then asked:
Q:“… That list of events that he describes there under that heading, they were all correct in July 2018, weren’t they?---
A:I gathered so.
Q:And they’re all correct now, aren’t they? It’s still the situation now, isn’t it?---
A:Yes, with my knees it would be, yes, with my right knee.”[19]
[19]T28, L21-26
34Then, later, he was asked:
Q:“And it’s still giving you trouble in the sense of - and I’m sorry to be difficult about this but I just need to run through them. You’re aware of pain around the anterior aspects, so the front of the right knee. That’s the situation now, isn’t it?---
A:Correct.
Q:And you can walk for about 100 metres on a flat surface, and then you’ll develop aching soreness to the knee, into your thigh?---
A:Correct.
Q:And by the time - you may reach 200 metres, you’ll then need to stop and sit and rest for 10 minutes before continuing?---
A:Correct.
Q:When you say ‘correct’ when I’m putting this to you, I’m talking about right now. These are all problems for you right now, aren’t they?---
A:Yes. Yes.
Q:He says that you have a limp and this brings about low back pain. That’s correct, isn’t it?---
A:Well, yes. I told them about it and he said it could be - it could be that. He really couldn’t put his finger on it.
Q:He says that you were ‘worried by unpredictable buckling or wobbling sideways of the right knee that could occur two to three times a week, but this hasn’t resulted in a true fall’. That’s still a problem for you now, isn’t it?---
A:Yes, I still have trouble with my right knee.
Q:He says that you were ‘worried about insecurity and these unpredictable episodes’. That’s still the situation, isn’t it, that you’re worried about the insecurity of your knee and these unpredictable episodes?---
A:Yes, I’m very careful.
Q:And he says that you’re ‘aware of crepitus or grating within the knee when sitting or moving’?---
A:Yes.
Q:‘Or arising or getting up’?---
A:Mm’hm.
Q:‘Or when negotiating stairs.’ That’s still all a problem for you now, isn’t it?---
A:It can be, yes.
Q:He says that you have ‘stairs at home and negotiate these carefully and cautiously, having pain in the right knee as you load when going up’. That’s the situation still, isn’t it?---
A:Yes.
Q:And he says that you are ‘ware of insecurity coming down and will hold the rail’. That’s the situation now, isn’t it?---
A:Yes, I’ve just got to be very careful.
Q:He says that you are ‘unable to fully squat and will avoid any kneeling on the right knee as this will cause pain’?---
A:It does.
Q:‘And he will then have difficulty arising.’ So if you’ve been kneeling, or squatting or kneeling, you have problems getting up. Is that the situation?---
A:That’s right.
Q:That’s the situation now. Is that right?---
A:Yes, correct.
Q:‘He is careful relative to uneven surfaces and not to twist or undertake sudden movements.’ So careful about uneven, walking on uneven surfaces, I suppose that means. Is that the situation, that you’re still careful with - - -?---
A:Yes, very careful.
Q:And you’re careful not to twist or undertake sudden movements of your right knee. Is that correct?---
A:Mm’hm.
Q:Then he says you haven’t been aware of any true locking or jamming. Is that the situation?---
A:Yes.
Q:Then he says, ‘If sitting for a time and arising, there is stiffness and soreness’. That’s still the situation, isn’t it?---
A:Yes.
Q:‘He says in the colder weather the knee will ache more, also with the change of weather.’ So cold weather and change of weather make your right knee ache more - - -?---
A:Yes.
…
Q:You are aware of the knee at night. Is that right?---
A:Yes.
Q:So the knee affects your sleep, doesn’t it?---
A:It can at times, yes.
Q:He says in the last paragraph that, ‘With some exercise then if attending the gym the right knee would flare-up,’ so you have not continued to pursue this?---
A:That’s right.
Q:So the right knee has stopped you going to the gym?---
A:Stopped me from doing quite a few things.” [20]
[20]T28, L28 ꟷ T31, 8
35The plaintiff then agreed that he was referred to orthopaedic surgeon, Mr Rohan Price, with respect to the knee, and that he gave a history of wearing a knee support at times when exercising, but not at other times, and that the present medication was of Panadol, generally a couple of times a week, and was asked:
Q:“… That was the medication you were taking for your right knee in July 2018, wasn’t it?---
A:Mm’hm.”[21]
[21]T31, 23-25
36It was further put to the plaintiff:
Q:“… You were seeing Mr McLean for your right knee so when you told him that you were unable to undertake the maintenance relative to lawns and gardens, that was because of your right knee, wasn’t it?---
A:I couldn’t do the gardening because - yes, that’s correct … .
Q:And he says in the next paragraph that in the past you were active with ‘walking three or four times per week of around six kilometres.’ So, firstly, before the injury to your right knee, had you been walking three to four times a week?---
A:Correct.
Q:And that was about six kilometres when you went for a walk?---
A:Yes.
Q:That all stopped after the right knee injury. Is that right?---
A:Yes.
Q:And you haven’t gone back to walking like that since, have you?---
A:No.
Q:He says in the next paragraph, ‘He was not undertaking any other specific sports activity,’ and then you were ‘busy with work and family’ Was that correct?---
…
A:It sounds about right.
Q:That’s the situation now, isn’t it?---
A:Yes.”[22]
[22]T31, L31 ꟷ T32, L26
37It was then put Mr McLean had recorded:
Q:“… ‘Mr Kaklikos is unable to stand for any length of time or walk any distance.’ That was the situation in July 2018, wasn’t it?---
A:Yes, it sounds about right.
Q:And that’s the situation now, isn’t it?---
A:Yes, I’m still having trouble, yes.[23]
[23]T33, L4-8
38The plaintiff was then asked about his affidavit material with respect to doing push-ups as a form of exercise before the injury on 21 July 2017, and that he claimed he had been doing a far greater number of push-ups just prior to the subject injury. However, the plaintiff had a cardiac implant device inserted in 2010 and he was asked:
Q:“So it could well be, couldn’t it, that you’d stopped the exercise like the push-ups, it could well be that you’d stopped those exercises after the ICD device was inserted in 2010?---
A:No. don’t think so, but anyway. I can’t remember.
Q:That’s what I’m trying to clarify with you, Mr Kaklikos. You don’t do the push-ups now?---
A:No.
Q:What I’m asking you about is whether you stopped doing the push-ups because you had the ICD device inserted in 2010. What do you say?---
A:I cannot remember. I honestly can’t remember, it’s too long ago.
Q:I’m suggesting to you that it’s a real possibility, isn’t it?---
A:I wouldn’t say it’s a possibility, but anyway.
Q:When you say it’s not a possibility, what do you say the situation is?---
A:I can’t remember. I honestly can’t remember. If I could I’d tell you.”[24]
[24]T37, L1-16
39Further, it was put to the plaintiff:
Q:“You’ve stopped all the exercise because of the left knee condition. Is that right? Sorry, the right - - - ?---
A:My right knee, yes.”[25]
[25]T40, L11-13
40The plaintiff was then questioned about a fall to his left shoulder in a coffee shop on or about 13 December 2018. The plaintiff was referred to the general practitioner’s examination of his shoulder, which recorded:
“Movement left shoulder. No obvious deformity or bruise seen. Extension painful and restricted.”[26]
and was asked:
Q:“… So he looked at the right shoulder - I’m sorry, your left shoulder - and he also in the next box has requested an x-ray and an ultrasound. Do you recall having those done?---
A:No, I can’t, but I must have.
Q:The doctor has also prescribed Panadeine Forte, 500 milligrams. Do you recall being prescribed with Panadeine Forte then?---
A:No, I can’t remember.
Q:I suggest to you that looking at the notes of the clinic, it was after this incident in the coffee shop in December 2018, it was after that incident that you started being prescribed Panadeine Forte. Would you agree?---
A:I honestly can’t remember.”[27]
[26]T41, L1-2
[27]T41, 2-14
41The plaintiff was then taken to progress notes dated 31 December 2018, and asked:
Q:“But you wouldn’t disagree with it, if the doctor has recorded that, that’s what you told him. Is that right?---
A:If he’s put it down, I’ve got no idea, because I can’t remember saying that.
Q:Then he says that you described ‘intermittent aching’, so ‘intermittent’ means different things but I suggest it means comes and goes, or not all the time, and he says you are predominantly pain-free. That was the situation in November 2018, wasn’t it?---
A:If it’s on record, I don’t - I honestly can’t remember.
Q:And the doctor says that you retained a good range of shoulder movement and he says under Plan, ‘Mr Kaklikos can now upgrade to a 10 kg weight limit and trial returning-to-work duties, including truck driving, which will be closely monitored by his physiotherapist with regards to transition back to work.’ Do you recall getting that advice from Dr Jackson?---
A:No.”[28]
[28]T42, L26 ꟷ T43, L1
42Further, the plaintiff was cross-examined about by Mr Jackson’s notes of 15 March 2019 as follows:
Q:“…Mr Jackson has recorded under Progress, ‘John’s right shoulder is doing great, having returned to full-time work’. Would you agree with that part first, that your ‘right shoulder is doing great, having returned to full-time work’?---
A:Well, they’re his words so he’s put it on record, but I honestly can’t remember ‘returned to work full-time’.
Q:Then he says, ‘However, he states that approximately two and a half months ago’, so that’s December 2018, ‘while walking into a cafe he fell on a wet floor, landing on the outstretched left shoulder. He heard a crack and found a significant pain within the left anterior lateral shoulder that radiated into the upper arm.’ So you heard a crack and felt significant pain in the left shoulder as a result of this fall in the cafe, didn’t you?---
A:Yes, I remember the fall.
Q:The doctor talks about that you’d seen Dr Jonathan Hooper and he says in the last sentence there, ‘Johnny now has difficulty with movements that involve reaching away from his body and overhead.’ That’s all to do with your left shoulder, I suggest. Did you tell him that, that you had difficulty with movements involving reaching away from the body and overhead?---
A:I can’t remember.”[29]
[29]T43, L4-26
43Then, at the same consultation, it was recorded:
Q:“… ‘Mr Kaklikos describes a second issue today of having twisted his left knee at the time of the fall and experiencing tenderness over the proximal fold of the patella and distal quadriceps. He denies any power loss but it is making it difficult to climb in and out of 3 trucks.’ So in March of 2019 you were having trouble climbing in and out of trucks because of your left knee, weren’t you?---
A:I can’t remember saying that but, you know, if he’s put it down obviously I did have a little bit of trouble. I don’t know. I can’t remember.”[30]
[30]T43, L30 ꟷ T44, L8
44Further, in review in May 2019, Mr Jackson discussed, with the plaintiff, the situation with his left knee and recorded:
“‘Should his symptoms deteriorate then Mr Kaklikos will require a left shoulder arthroscopy with repair of the supraspinatus.’”[31]
[31]T44, L12-15
45The plaintiff was then cross-examined as follows:
Q:“…Again if that’s what’s in Mr Jackson’s report, you’d accept that was the situation?---
A:Yes. Yes, If it’s in the report, but I can’t remember it.”[32]
[32]T44, L15-17
46Further, the plaintiff agreed Mr Jackson performed an operation on his left knee on 23 March 2020 and on 22 May 2020, and it was put to the plaintiff that Mr Jackson reported:
“ … now eight weeks post-surgery and you’re able to demonstrate today being able to walk without the brace. You were keeping the leg extended for weight bearing, and reportedly pain free.”[33]
[33]Defendant’s Court Book page 121 and T45, L10-13
47The plaintiff was also cross-examined about this report from Mr Jackson as follows:
Q:“… That’s what’s in the doctor’s report. Was that the situation that you were able to work - - -?---
A:Yes, if it’s in the report, yes, must be right. I don’t know.
Q:Have you been back to Mr Jackson since May 2020?---
A:Not as far as I know. I can’t remember. I don’t think so.”[34]
[34]T45 L13-18
48The plaintiff was then asked:
Q:“Are you bringing your legal action in relation to the fall in the coffee shop in Williamstown?---
A:I think it’s been sorted out.
Q:‘It’s been sorted out,’ has it?---
A:Yes.
…
Q:Did you receive compensation for it?---
A:Yes, I did.
Q:You’ve told us in your two affidavits about the McDonald’s episode in August 2017, the Crown episode in 2014 or maybe 2012, and you’ve told us about the episode at the Phoenix Hotel or café in 2014 or 2015?---
A:Yes.
Q:You haven’t told anyone - in your two affidavits, you haven’t told anyone about this fall in the coffee shop in Williamstown in December 2018, have you?---
A:Nobody asked me.
Q:When did you settle the claim over the fall in the coffee shop in Williamstown?---
A:Probably about a month ago.
Q:Which solicitors were acting for you in that?---
A:Slater and Gordon.
…
Q:City office?---
A:Yes.
Q:How much did you resolve that claim for?---
A:I can’t remember what the total claim was. I honestly can’t remember including Slater and Gordon. I suppose you’ll have to talk to them about that.”[35]
[35]T47, L16 ꟷ T48, L14
49Then, with respect to symptoms in the right shoulder, both before and after the subject injury on 21 July 2017, the plaintiff was asked about seeing Mr Jonathon Hooper back in 2014 or 2015, and was asked:
Q:“… you said in your affidavit that his advice was that you could have the injection or the surgery, which you declined - you’ve agreed with me on that - and you said in your affidavit that the third part of his advice was to rest and avoid putting strain on the right shoulder wherever possible?---
A:Yes.
Q:That was the advice you received from Mr Hooper back in 2014-2015. I suggest that you were following that advice right up until the incident on 21 July 2017, weren’t you? You were - - -?---
A:It sounds about right.
Q:So you were avoiding putting strain on your right shoulder wherever possible before 21 July 2017?---
A:The pain was minimal at that stage.
Q:And you avoided putting strain on your right shoulder after 21 July 2017?---
A:Yes, that’s correct.
Q:I suggest to you that you’re still in a situation of doing the same work full-time, avoiding putting strain on the right shoulder where possible?---
A:That’s right.
Q:So I suggest that nothing has changed before and after 21 July 2017 in terms of your work. Would you agree?---
A:In terms of my work that I do?
Q:Yes?---
A:No. No, nothing’s changed with the work that I do.”[36]
[36]T48, L18 ꟷ T49, L8
50It was put to the plaintiff that his general practitioner, Dr Rashedul Huq, had not prescribed any medication for this right shoulder for many years, as follows:
Q:“… What would you say?---
A:I don’t have to be prescribed medication if I’m getting Panadol.
Q:And according to the notes, the Panadeine Forte seems to have started or did start from 13 December 2018 after your left shoulder injury?---
A:Yes.
Q:So prescription medication has been to your left shoulder injury. Would you agree to that?---
…
A:No, I wouldn’t agree with that.
Q:I suggest that you’re not on any prescription medication for pain from Dr Huq or any other general practitioner, are you?---
…
A:No, I use Panadol, a fair bit of it, and I use Panadeine Forte when I need.
Q:The records seem to suggest that you’ve had one prescription for Panadeine Forte on 13 December 2018?---
A:Yes.
Q:For your left shoulder injury?---
A:Yes.
Q:Do you recall getting another prescription or have you been going on for the same one?---
A:I still get Panadeine Forte, I just don’t get it with prescriptions.
…
Q:… Mr Kaklikos, just in relation to the medication issue, you’ve said in your more recent affidavit, this is plaintiff’s court book 34, your Honour, paragraph 8, that you, ‘Use Panadol most days and if the pain is particularly severe you take two Panadeine Forte tablets which you use approximately three days a week’?---
A:Mm’hm.
Q:I’ll be suggesting to his Honour that Panadeine Forte is a prescription medication and I’ll suggest to you now that you need a prescription for the Panadeine Forte. What do you say?---
A:I still use them because my parents are in their mid-80s and I used to get them - my mum passed away and I used to get them off her but now I get them off my dad.
…
Q:I’m sorry, when you say, ‘Yes,’ there’s no doctor prescribing Panadeine Forte, you’re using your parents’. Is that right?---
A:Yes.
Q:I suggest to you that if you had significant right shoulder pain such as you suggest you would be complaining of that to Dr Huq. What do you say? Or reporting that to Dr Huq. What do you say?---
A:No, I haven’t. I just look after it myself.”[37]
[37]T50, L6 ꟷ T52, L7
51The plaintiff was then asked:
Q:“The last note where Dr Huq specifically refers to your right shoulder seems to be 29 November 2018?---
A:Yes.
Q:The doctor is talking about your surgeon having put weight restrictions to 10 kilograms, but after that time up until March 2022 you don’t seem to make any report of problems with your right shoulder to Dr Huq. What do you say?---
A:I probably haven’t. As I said, I just look after it myself.”[38]
[38]T52, L12-19
52Further, it was put to the plaintiff:
Q:“I suggest to you that if you use Panadeine Forte … you use it for a combination of your right shoulder, your left shoulder, both knees. What do you say?---
A:No, I just use it for my shoulder, my right shoulder.”[39]
[39]T52, L28 ꟷ T53, L1
53The plaintiff was then asked:
Q:“You’ve said in your affidavit, the more recent affidavit, that you have started receiving osteopathic treatment from Kevin Williams in Point Cook?---
A:Correct.
Q:… when did you start seeing Kevin Williams?---
A:I don’t know what day it is. I don’t know what day it was.
Q:Was it last month?---
A:Last couple of months, I think.
Q:I suggest that Mr Williams treats you in relation to your left shoulder, both knees. What does he treat?---
A:He treats my shoulder and just above my shoulder.
Q:Does he treat anything else, like, your neck or your neck?---
A:No, not at all.
Q:We don’t have a report from Mr Williams, so that’s why I’m asking about it. We don’t have any report to assist in relation to this?---
A:No.”[40]
[40]T53, L2-16
54The plaintiff was also asked:
Q:“Do you agree that each of those other issues, your left shoulder, both knees, perhaps your back, affect your ability to do housework, chores - - -?---
A:I don’t do any housework. It would be a little bit clumsy if I didn’t be careful so I don’t hurt myself, but anyway.
Q:Did you do any housework before your injury on 21 July - - -?---
A:No.”[41]
[41]T53, L27 ꟷ T54, L2
55Further, the plaintiff agreed that he employed strategies to protect his right shoulder, his left shoulder, his right knee, left knee, neck and back.
Re-examination of the Plaintiff
56In re-examination, the plaintiff was asked to compare his pain and disability of the right shoulder with other parts of his body. First, he replied, “there’s no impact on my left shoulder”.[42] With respect to his back, he stated, “It doesn’t sort of hold me back in anything, my lower back”.[43] With respect to his neck, he stated, “once again, it doesn’t impact me at all”.[44] With respect to his left knee, he stated, “not so much my left leg, yes, it doesn’t impact me”.[45] And with respect to his right knee, he stated:
A:“My right knee does restrict me with some things, but I try and plough through if I could - if I can. But I can’t say - it used to be a lot worse but as time goes on I suppose it’s a little bit better, but it’s my shoulder that’s giving me more trouble than anything else.
Q:How does your right knee restrict your activities and lifestyle?---
A:I can’t say it restricts me.”[46]
[42]T58, L4
[43]T48, L9-10
[44]T58, L16
[45]T58, L26-27
[46]T59, L4-11
57The plaintiff was then asked, from the time that surgery was performed in 2018 to presently in June 2022:
Q:“… how has that right shoulder condition progressed or developed or maintained, stability, whatever? What’s happened with it?---
A:I honestly can’t say what’s happening inside, but I still am having a lot of trouble with it. It’s just a niggling pain forever, and I can’t understand why, that’s why I just take painkillers.
Q:I can’t find where I noted it, but I think you said the niggling pain - I think you put it on a scale of 10 somewhere in your evidence earlier?---
A:Yes, it varies from 3 and 4, goes right up to 9 plus.
Q:How often do you hit 9 on a scale of 10 level of pain in your shoulder?---
A:If I’ve done something out of the ordinary, if I’ve tried to lift something the wrong way, it’s nearly brought tears to my eyes and I’d call that a 9.
Q:So on an average week, do you hit the 9 at times every week, or is it less frequent, or more frequent? Can you give His Honour some idea of where we’re at?---
A:If I stop thinking about it, probably on an average of once a week, yes. That’s why I’ve got to be conscious about it.”[47]
[47]T59, L29 ꟷ T60, L17
58Further, it was put to the plaintiff:
Q:“You’re now attending Kevin Williams, the osteopath?---
A:Correct.
Q:As I understood it, your treatment is for your shoulder alone and nothing to do with your right knee?---
A:A hundred per cent.”[48]
[48]T61, L31 ꟷ T62, L3
59With respect to the shoulder presently, he was asked:
Q:“How do you find your situation by the end of a working day?---
A:There are days where I end up going stiff a little bit by the time I get home but, as I said to you before, I’ve just got to be very careful in the way I use my shoulder and I just got to handle it, I suppose.”[49]
[49]T63, L27-31
Analysis
60It is clear enough that the plaintiff suffered from significant pathology in his right shoulder, both before and after the subject accident on 21 July 2017.
61In any event, the plaintiff was capable of working in his pre-existing employment as a truck driver up to fifty to sixty hours per week, both before and after the subject injury. I am satisfied that the plaintiff, at the present time, has ongoing problems with both knees and both shoulders, but is still able to work at his pre-existing level.
62I am satisfied that the plaintiff suffered from multiple problems attributable to his fall at McDonalds on 18 August 2017, as recorded by Mr McLean, referred to above, and that these problems continue until the present time. I am further satisfied that it was only after the fall in the coffee shop on 13 December 2018 that the plaintiff was prescribed Panadeine Forte. On one view, this was in respect to a left shoulder injury, the subject of the fall. These proceedings have been resolved, but no documents have been tendered with respect to injuries, treatment or consequences.
63I am satisfied that, with respect to the right shoulder surgery, Mr Jackson’s recording on 13 November 2018 to the effect that the plaintiff was doing well and was virtually pain free, is probably accurate, and I am not satisfied there has been any significant deterioration since then. Also, Mr Jackson’s assessment is consistent with the plaintiff’s admitted work capacity, which is essentially the same before and after the subject injury.
64Insofar as there are ongoing consequences with respect to the aggravation injury suffered on 21 July 2017, it may be said that the consequences disclose pain and suffering consequences which are both marked and significant. But I am not persuaded that those consequences can be fairly described as being more than significant or marked or as being at least very considerable.[50] In all the circumstances, the application must be dismissed.
[50]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph [34]
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