Kalkbrenner v Vinidex Pty Limited
[2012] VCC 1714
•9 November 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-03713
| JOSEF KALKBRENNER | Plaintiff |
| v | |
| VINIDEX PTY LIMITED | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 24 October 2012 | |
DATE OF JUDGMENT: | 9 November 2012 | |
CASE MAY BE CITED AS: | Kalkbrenner v Vinidex Pty Limited & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1714 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury application – injury to the right shoulder or left shoulder or both shoulders in combination – pain and suffering only
LEGISLATION CITED – Accident Compensation Act 1985, s134AB(37)
CASES CITED – Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Transport Accident Commission & Anor v Dennis [1998] 1 VR 702; Sabo v George Weston Foods [2008] VCC 1187; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Kelso v Tatiara Meat Co Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Mosticone v Nestle Australia Ltd & Anor [2011] VCC 1473; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Hayden Engineering Pty Ltd v McKinnon [2010] VSCA 69
JUDGMENT – Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Goldwell | Slater & Gordon Ltd Lawyers |
| For the Defendants | Ms M Tsikaris | Lander & Rogers |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him arising out of his employment with the first defendant in September 2009.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to either the right or left shoulder but, in particular, the right shoulder.
6 The plaintiff relied upon two affidavits, sworn 9 March 2011 and 23 October 2012 and was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]s134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)“the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the first defendant.[2]
(b)“the injury” with its resulting impairment must be permanent, in the sense that it is likely to continue into the foreseeable future.[3]
(c)“the consequences” to the plaintiff of his impairments to the shoulders in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[4]
[2]s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[3]Barwon Spinners (supra) at paragraph [33]
[4]s134AB(38)(b) and (c)
9 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & Anor v Dennis:[5]
“Many [impairments] are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[5][1998] 1 VR 702; Sabo v George Weston Foods [2008] VCC 1187 at [73]
10 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
11 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd & Anor:[6]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[7]
[6][2009] VSCA 181
[7](supra) at [42]
12 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[8]
[8]Stijepic v One Force Group Aust Pty Ltd & Anor (supra) at paragraph [44]
13 The test for “serious”, as set out in paragraph (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
14 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.[9]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[10]
[9]s134AB(38)(j) of the Act
[10] See Kelso v Tatiara Meat Co Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The Issue
15 Counsel for the defendants informed the Court that this is a “range case”; namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range.
The Plaintiff’s Evidence
16 In his affidavits sworn on 9 March 2011 and 23 October 2012, the plaintiff deposed that:
· In April 1991, he commenced working for the first defendant as a dye storeman, and then worked in training and as a foreman.
· On 11 September 2009, he was working at a packing table packing lengths of pipe as they came off an extruder machine. The pipes were quite heavy. That night, he had back pain extending through his back. He went to his doctor the next day and had approximately one week off work.
· He returned to work with restrictions on lifting. He had ongoing back and shoulder pain and had an ultrasound, which showed a torn supraspinatus tendon. On 15 October 2009, he had a cortisone injection in his left shoulder. On 14 December 2009, he had hydrodilatation on his left shoulder, which provided limited relief.
· On 9 June 2010, he aggravated his shoulder pain when using a rubber mallet to knock a large drum. He had a lot of right shoulder pain. He saw his doctor a couple of days later and had approximately four weeks off work. He returned to work on a graduated basis doing alternative duties. He did not return to his old work. His employment was terminated in July 2011.
· He continues to see his general practitioner, Dr Ooi, every month, and attends hydrotherapy and physiotherapy. He sees a psychologist, Ms Steinhoff. He takes Panadol Osteo for pain relief, which does not help that much. He stopped taking Tramal and Mobic, because they upset his stomach.
· He has constant pain in his shoulders, which is a dull ache, and a decreased range of movement. He cannot lift heavy weights and the more active he is the more shoulder pain he gets. The symptoms are worse in his right shoulder.
· He has difficulty pushing, pulling and carrying things, and doing tasks above head height. Personal care tasks such as dressing and showering are difficult.
· His sleep is very poor as he wakes with pain when he moves onto his shoulders. His wife now sleeps in another room because he disturbs her. Their sex life is now non-existent due to pain and irritability.
· He can no longer carry out household chores as readily as he did previously. He mows the lawns with difficulty and does little gardening work. He previously enjoyed carrying out handyman work such as painting the house, but these jobs are now very difficult. He has sold his ladder as he no longer paints above head height, cleans the gutters or trims the high branches of the lemon tree.
· He used to play golf up to three or four times a week, but because of his shoulder injuries he can no longer play golf.
· He can no longer play sport and physical activities with his grandchildren.
The Plaintiff’s Evidence in Cross-examination
17 The plaintiff was cross-examined and gave the following pertinent evidence:
· The pain in his knees ceased after the hip operation.
· He saw Mr Love in December 2009 and Mr Clifford in January 2010. Other than that he had not been referred to any other specialist.
· He had not discussed any sleeping medications with his general practitioner.
· He returned to modified duties, which affected his posture, and he was required to stand. The job was not ongoing; sometimes it lasted for five minutes, sometimes ten minutes, and then he would not do anything because there was nothing else for him to do.
· He agreed he was having trouble mentally after he stopped work.
· He could not recall telling Healthe.work that his shoulder pain was rated at three out of ten. He said he could have.
· He said he could not move his arms back. He could not wipe his rear end when he goes to the toilet. He said that is just one spot that he cannot reach.
· Since ceasing employment, he had undertaken two computer training courses. He said, since his employment finished, he had been looking for work as a sales representative in caryards with the assistance of Healthe.work.
· He said he had not applied for any jobs as a building supervisor. He said he had worked in that industry approximately twenty or thirty years ago and a lot had changed.
· He has attended hydrotherapy for eighteen months.
· He ceased attending physiotherapy in January of this year when it was stopped. He attended hydrotherapy five to six times a week. He said his wife and daughter now do the gardening. He mows the lawn every now and then. Otherwise, his daughter mows the lawn. She did not mow the lawn prior to his injury.
· He can no longer clean the gutters. His son-in-law now performs that task.
· He went to Hawaii with his wife for twelve days. They had a very small suitcase on wheels, which his wife pulled.
· In 2010, he and his wife travelled with his son and daughter to Europe. His son did the driving and he enjoyed the sights.
18 In re-examination, the plaintiff said:
· While in Europe he had difficulty getting up the Spanish Steps in Rome, partly because of his hip but because he needed to use his arm to hold onto the rail and drag himself up the stairs.
· He did not swim in Hawaii because he was worried about the breakers coming in and knocking him over. He can dogpaddle, but cannot swim freestyle or any of the other conventional strokes.
· He last worked as a building supervisor in 1979 to 1980 and has not kept up to date.
· While he was giving his evidence his pain level was at seven out of ten and on a typical day it was five out of ten. When he goes to sleep his pain level is probably about eight.
· Before he goes to bed he takes two Panadol, which seems to ease the pain a bit.
· He now sleeps from one to one-and-a-half hours then rolls onto his shoulder, which causes pain.
· His driving is affected after about one hour. When he starts driving his shoulder ache is at five and increases to seven-and-a-half after an hour. He gets out and walks around a bit and then continues driving.
· He does not have any problems with his hip since the operation.
· He has been on medication since 2009.
Investigations
19 On 15 October 2009, an ultrasound of the left shoulder showed:
“All tendons of the rotator cuff are intact and normal in appearance. The long head of biceps tendon is normal in position and appearance. There is no subacromial bursal thickening or effusion.
There is, however, reproduction of the patient’s symptoms with abduction, with just a subtle sense of impingement of the bursa.
Under ultrasound guidance, 1ml of Celestone Chronodose and 1ml of 0.5% Marcain was injected into the left subacromial bursa.”[11]
[11]Plaintiff’s Court Book (“PCB”) 34
20 On 16 October 2009, an ultrasound of the right shoulder showed:
“There are signs of a full thickness tear of the supraspinatus tendon with some calcific tendinosis in this tendon and the subscapularis. There is subacromial bursitis with impingement.
Under ultrasound guidance, 1ml of Celestone Chronodose and 1ml of 0.5% Marcain was injected into the right subacromial bursa.”[12]
[12]PCB 35
21 On 17 June 2010, an ultrasound of the right shoulder showed:
“Full-thickness tear of the anterior supraspinatus tendon on a background of tendinosis.
Mild thickening of the subacromial bursa. Ultrasound-guided steroid injection may be useful, if clinically indicated.”[13]
[13]PCB 24
22 On 6 September 2010, an ultrasound of the left shoulder showed:
“Left supraspinatus partial thickness tear. Confirmation on MRI of the left shoulder is recommended.
Left subdeltoid-subacromial bursitis with bursal impingement on abduction during dynamic scanning. Ultrasided guided left shoulder steroid injection may be of therapeutic benefit.”[14]
[14]PCB 29
23 On 2 August 2011, an ultrasound of the right shoulder showed:
“Supraspinatus tendinopathy with evidence of a full thickness incomplete tear of the anterior aspect.”[15]
[15]PCB 42
24 On 28 May 2012, Mr Fogarty reported that he saw:
“… plain X-rays of the right shoulder done on 27 October 2011 and noted that there was definite osteoarthritic change in the acromioclavicular joint and early osteoarthritic change in the glenohumeral joint of the right shoulder. … .”[16]
[16]PCB 61
The Plaintiff’s Medical Evidence
Mr M J Clifford
25 On 3 September 2010, Mr Clifford, orthopaedic surgeon, reported to the plaintiff’s solicitor. Mr Clifford treated the plaintiff in relation to his shoulder injury in December 2009 on referral from the plaintiff’s general practitioner.
26 Mr Clifford said, on examination, the plaintiff’s right shoulder had a positive impingement test and localised tenderness in the region of the supraspinatus tendon and his left shoulder had 50 per cent of glenohumeral abduction, external rotation of 20 per cent but minimal tenderness. He diagnosed a rotator cuff tear of the right shoulder involving the supraspinatus tendon and said the plaintiff had developed an element of adhesive capsulitis to his left shoulder. He arranged for the plaintiff to have hydrodilatation performed on his left shoulder, and anti-inflammatory medication and physiotherapy were prescribed.
27 Mr Clifford saw the plaintiff in January 2010, when he was performing home exercises and his left shoulder still had a restricted range of movement. He recommended he continue with his home exercise program.
Dr Peter Jones
28 Dr Jones, locum general practitioner, provided a report to the plaintiff’s solicitor on 26 August 2010. He diagnosed a frozen left shoulder injury, tendinopathy with a full-thickness tear to the right supraspinatus, and cervical spondylosis. It was his view that all of the plaintiff’s injuries meant he was unlikely to resume his pre-injury employment. The plaintiff was taking oral analgesia, Mobic, Tramal and having physiotherapy. He recommended he avoid any shoulder movement that will stress or aggravate his medical condition. It was his view that the plaintiff could only remain in the workforce in a supervisory or educative capacity.
Mr Michael Lieu
29 In 2010, Mr Lieu, physiotherapist, treated the plaintiff on referral from his general practitioner. On examination, he found active right shoulder range was limited by pain and almost no ability to perform hand behind back. The pain was constant and sharp with aggravation, worse at night. Pins and needles was constant through the right fingers. Mr Lieu referred the plaintiff to fellow therapist, Ms Do, for treatment.
Ms Christine Do
30 Ms Do, physiotherapist, reported in June 2010 that she had been treating the plaintiff on referral from the plaintiff’s general practitioner.
31 In August 2010, Ms Do said the plaintiff was suffering a full-thickness tear of the supraspinatus tendon, subscapularis tendinosis and subacromial bursitis. It was her view that the plaintiff had been suffering from long-term overuse of his rotator cuff muscles in his shoulder. In September 2009, he experienced the initial tear of those calcified tendons, as demonstrated by the ultrasound in October 2009. The subsequent corticosteroid injection helped to settle the bursitis aspect of his pain; however, the tear remained.
32 In June 2010, the plaintiff suffered an extension of the tear which has resulted in a re-aggravation of the bursitis. Ms Do said that the plaintiff’s return to work on modified duties resulted in a deterioration in his progress, with the result that his shoulder ranges are now only up to shoulder height in both flexion and abduction. She said the plaintiff suffered from full-thickness tears, which are irreversible unless surgically repaired, and even then he will never again have full function of his shoulder. She said his bursitis will always exist to some degree and cause him discomfort, especially with function, which requires elevation above shoulder height.
Mr Bruce Love
33 In April 2012, Mr Love, orthopaedic surgeon, said he treated the plaintiff on request from his general practitioner. He reviewed the plaintiff in 2009. He said, on examination, the plaintiff had limited abduction of both shoulders with a maximum of about 100 degrees of total glenohumeral movement. He noted the ultrasound on the right side suggested a full-thickness tear, whilst the examination on the left side suggested bursitis. He suggested that it would be wise for the plaintiff’s symptoms to settle before embarking upon any further investigation, and suggested physiotherapy. The plaintiff did not return following the original consultation in 2009.
Dr Chai-Ling Ooi
34 On 16 March 2012, Dr Ooi, general practitioner, reported the plaintiff as suffering from:
§ a right full thickness, incomplete, anterior, supraspinatus tendon tear;
§ a left partial supraspinatus tendon tear with left subdeltoid-subacromial bursitis, as noted on ultrasound of 6 September 2010;
§ adhesive capsulitis of the left shoulder;
§ a reactive depressive illness, likely secondary to shoulder injuries, and workplace issues.
35 Dr Ooi said that the plaintiff is unlikely to return to his pre-injury level of functioning due to his physical condition related to his shoulder pain. She expected that the pain and restriction of his shoulder movement would fluctuate from time to time and eventually stabilise if he followed medical advice, including active mobilisation with home-based exercise and hydrotherapy. Dr Ooi noted that the plaintiff had difficulty sleeping at night due to shoulder pain.
Mr Stephen G Doig
36 On 15 December 2011, Mr Doig, orthopaedic surgeon, saw the plaintiff at the request of the plaintiff’s solicitor. Mr Doig accepted that the plaintiff’s injury was work-related and diagnosed a right-sided full thickness tear of the supraspinatus and a left-sided partial thickness tear of the supraspinatus. He considered the plaintiff’s injury had stabilised, with ongoing pain in both shoulders. He was of the view that the plaintiff should repair his rotator cuff on the right side but said there was no guarantee that the repair would fix his problem. He said at two years, and with stiffness in the shoulder, it makes the repair less likely to be of help, but it is possible. On the left side, he recommended the mobilisation of his shoulder and, again, said there was no guarantee that surgery would in fact assist the plaintiff.
37 Mr Doig said the plaintiff was likely to be restricted in pushing, pulling, lifting or carrying and doing any of those activities repetitively. He considered the plaintiff was likely to be restricted in prolonged use of each shoulder. He said overhead activities, steps and ladders would be difficult. He said the restrictions will be significant and likely to continue into the foreseeable future. He said the plaintiff was not able to perform his pre-injury duties, which was likely to last into the foreseeable future. He said the plaintiff might be able to perform a sedentary job part-time at a maximum of ten hours per week and there was a real risk that he would not be able to cope with those hours. He said the plaintiff’s social and domestic activities are likely to be restricted. The plaintiff reported that his personal hygiene is harder and home life is much worse. His wife now uses a separate bed because the plaintiff is so restless during the night because of his shoulders. The plaintiff complained that driving is harder and that he is unable to play golf, football or cricket with his grandchildren. Mr Doig said the plaintiff’s restrictions were likely to last into the foreseeable future. He thought he was at risk of developing arthritis in the right shoulder as there is a full-thickness tear present.
Mr Michael Fogarty
38 In May 2012, Mr Fogarty examined the plaintiff at the request of the plaintiff’s solicitor. Mr Fogarty diagnosed a bilateral rotator cuff syndrome. On the right side there was a full thickness tear of the supraspinatus in a part of the tendon apparently affected by calcific tendonosis. He noted the plaintiff had osteoarthritis of the acromioclavicular joint and early osteoarthritic changes in the glenohumeral joint. As to the left shoulder, Mr Fogarty said the plaintiff had a partial thickness tear of the supraspinatus. He had not seen a plain x‑ray of the left shoulder but suspected that it would show acromioclavicular osteoarthritis. He thought the plaintiff’s symptoms would continue for the foreseeable future. He thought the plaintiff’s condition had stabilised. Mr Fogarty said operative treatment was an option, particularly for the right shoulder, but not a necessity. He thought there would be long-term deterioration in the form of gradual worsening osteoarthritis in the acromioclavicular joint and possibly the glenohumeral joint on the right shoulder.
Ms Danielle Atherton
39 In January 2012, Ms Atherton, psychologist, reported treating the plaintiff since July 2011 on thirteen occasions in relation to stress and depression as a result of his work injury. The plaintiff complained of inability to sleep. His counselling was ongoing.
Mr Paul Kierce
40 On 20 December 2010, Mr Kierce, orthopaedic surgeon, examined the plaintiff at the request of the defendants’ insurer. Mr Kierce diagnosed a full-thickness tear of the right supraspinatus and a partial thickness tear of the left supraspinatus which was work related. It was his view that the plaintiff’s impairment had stabilised. He assessed the plaintiff as having a whole person impairment at 16 per cent. He described the plaintiff as genuine. He was aware the plaintiff was unable to participate in golf, which he had played weekly, and on occasion three times a week prior to his injury. The plaintiff said he was unable to resume playing tennis, football, table tennis and basketball with his grandchildren. He is unable to paint or carry the shopping. He needed help with putting his arms into sleeves and he is required to use a sock machine to help with getting his socks on. Personal hygiene was difficult because of his bilateral shoulder problem
The Defendants’ Evidence
41 The defendants relied on the medical report from Mr Kierce.
Vocational Assessments
Initial assessment of Healthe.work
42 The initial assessment report was commissioned in August 2010. The plaintiff reported that he had the following restrictions:
· fluctuating pain levels with certain positions/movements of the right and left shoulder;
· right and left shoulder pain with referring pain down to the elbow joints;
· constant pain symptoms described as a dull ache;
· this shoulder pain was rated at three out of ten, with ten being the maximum level of pain;
· neck and shoulder blade tightness on the right side;
· sleep disturbance at night.
43 In August 2010, the rehabilitation consultant recommended progress be made towards a return to work goal, with a short-term goal of increasing functional capacity and a long-term goal of increasing to pre-injury hours and duties.
NES Vocational Assessment Report
44 An assessment was conducted on 13 December 2010. The plaintiff commenced a return to work plan in administrative duties, although the desk space work exacerbated his shoulder condition. The plaintiff reported he was currently working seven hours per day, five days per week, performing light duties with the first defendant. The recommendation was that the first defendant’s insurer refer the plaintiff for NES retraining as required.
45 Healthe.work recommended suitable employment options, should the plaintiff not be able to return to pre-injury duties, of occupational safety advisor, sales representative, production manager, construction project manager and sales assistant.
Video Surveillance
46 I was shown a video of the plaintiff taken over seven minutes and forty seconds. The video showed the plaintiff entering a department store, tucking his shirt into his trousers behind his back, putting his wallet into his back pocket and reaching for an item off a display counter. The plaintiff was not shown doing anything that was inconsistent with his evidence. I accept that the video surveillance did not assist the defendants.
Credit of the Plaintiff
47 The plaintiff impressed me as a genuine and honest witness.
48 The plaintiff was consistent in reporting the injury and its consequences to doctors whom he saw. He did not exaggerate the consequences of his injury.
49 The plaintiff answered all questions put to him in a direct and frank manner and made appropriate concessions; for example, he said he could put his hands behind his back but that there were certain actions he could not perform. He was not evasive or argumentative.
50 Overall, the plaintiff impressed me as a credible witness.
Analysis of the Evidence
51 Based on the medical evidence, I am satisfied that the plaintiff suffered a compensable injury arising out of his employment with the first defendant. All of the medical witnesses accepted the injury was work-related. All of the medical witnesses agreed that the plaintiff had suffered a full-thickness tear of the right supraspinatus and a partial thickness tear of the left supraspinatus.
52 The plaintiff’s evidence was that in September 2009, he was working at a packing table for about a week, after which he suffered pain in his back and shoulders. He had ultrasounds of both shoulders and ultrasound-guided injections in both shoulders. The ultrasounds showed a right-sided full thickness tear of 8 millimetres. There was some subacromial bursitis on both sides. He was referred to Mr Clifford and Mr Love. He was treated with physiotherapy and hydrodilatation, and returned to work on light duties. The plaintiff’s claim was accepted. In June 2010, while on light duties, he exacerbated his right shoulder injury. He had a further ultrasound, which showed a full-thickness tear of the supraspinatus of one centimetre and a partial thickness tear of the supraspinatus in the left shoulder.
53 I accept that by the time of June 2010, the injuries to the left and right shoulder, and the consequences they were causing, were well established. I am not persuaded that the 2010 injury was an aggravating injury or intervening cause. Neither party put it that way and no medical evidence supports that conclusion. Rather, it was an occurrence when the plaintiff’s symptoms became more problematic.
54 Counsel for the plaintiff submitted that the use of both shoulders may be regarded as a single body function, and relied upon Mosticone v Nestle Australia Ltd & Anor.[17]
[17][2011] VCC 1473 per Judge K L Bourke
55 Counsel for the defendants submitted that the plaintiff cannot aggregate the bilateral shoulder functions because, first, counsel for the plaintiff submitted it was either the right or the left shoulder, but particularly the right shoulder. Secondly, the evidence was there was a specific incident in September 2009 and a specific incident in June 2010, which aggravated the right shoulder.
56 I accept that the medical evidence supports the fact that the plaintiff consistently complained to doctors of injury to both shoulders, mainly on the right, from about 2009. I have already found that the June 2010 incident was not an aggravating injury or intervening cause. In this case, the plaintiff’s injury to both shoulders arose in the same work process during the same period and where the plaintiff used both shoulders in manual work. I accept that the injury the plaintiff sustained to his shoulders was to a single body function; namely, his capacity to work in a job that required the use of both shoulders in combination.
57 The plaintiff’s evidence was that he has a constant dull ache in both shoulders. His right shoulder is currently worse than the left. The pain increases when uses his arms. On occasion, the pain increases for no reason. He reported the pain to all the doctors whom he saw. The plaintiff said on a typical day, the level of pain was about a five out of ten. Dr Ooi’s notes confirm that pain was consistently discussed between herself and the plaintiff.
58 Counsel for the defendants submitted that the plaintiff’s pain is not excruciating and unrelenting and the objective evidence of wasting was not apparent when examined by Mr Fogarty. I accept the plaintiff’s evidence as to the level of pain he suffers and his evidence that it is constant. I accept Mr Fogarty found no wasting, but he said there would be further deterioration in the form of gradual worsening of the right shoulder due to the osteoarthritis. Accordingly, I reject the defendants’ submission. Further, the injury of 2009 has rendered the plaintiff more susceptible to further injury, which occurred in 2010.
59 The plaintiff’s evidence was that the pain interferes with his sleep. The plaintiff reported to all the doctors he saw that he has difficulty with pain when sleeping. He said the pain is at its worst in his sleep, when it is at a level of eight out of ten. He takes two Panadol each night before going to bed, but still wakes in pain every one to one-and-a-half hours. His wife now sleeps in a separate room because he was disturbing her sleep. He feels tired and grumpy because of the broken sleep. Dr Ooi’s notes confirm that sleep was discussed at monthly consultations. I accept the plaintiff’s evidence that his sleep has been disrupted since the injury.
60 The plaintiff’s evidence was that he has been taking medication daily since the injury. In October 2010, he had cortisone injections into both shoulders, with limited effect. He was prescribed Mobic and Tramadol, which he ceased because it upset his stomach. Currently, he takes four Panadol Osteo for pain relief, two in the morning and two before he goes to bed. Even taking the medication, he still suffers pain. The plaintiff has undertaken physiotherapy treatment, and monthly consultations with his general practitioner. He performs home exercises and attends hydrotherapy multiple times per week. The plaintiff was referred to Mr Love in December 2009 and Mr Clifford in January 2010.
61 There was no suggestion by any of the doctors that the plaintiff’s treatment was in any way inappropriate. The medical evidence is equivocal as to further surgery. Mr Doig said, because of the plaintiff’s level of pain and the period since the injury, he would be inclined to repair the rotator cuff on the right side and try to mobilise his left shoulder, but said surgery may not assist the plaintiff. Mr Fogarty said surgery was an option, but not a necessity. Mr Kierce did not express any view as to surgery. None of the medico-legal doctors suggested the plaintiff should be referred to further specialists.
62 The plaintiff’s evidence was that pain affects his driving after approximately one hour. He said the pain level may be at a five out of ten but after an hour’s driving it will have reached a seven or seven-and-a-half out of ten. He has to stop his car, get out and walk around before he can continue driving.
63 The plaintiff said he has difficulty dressing and undressing; it was awkward and painful to put on the sleeves of shirts and jackets. His daughter often assists him with his shoes and socks. He uses a shoe horn and a device to help him put on his socks. He said personal hygiene tasks are difficult; drying his back with a towel and wiping his backside. He reported these difficulties to the doctors he saw. Counsel for the defendants submitted that I should be cautious in accepting the plaintiff’s evidence on this aspect as the video surveillance showed the plaintiff tucking his shirt into his trousers behind his back and putting his wallet in his back pocket. I do not agree with this submission. There is a significant difference between discomfort and restriction in wiping one’s backside than reaching in the back pocket for a wallet. I consider this is a significant consequence for a sixty-six year old man who, on all medical evidence, is likely to suffer increasing osteoarthritis in his shoulders, which no doubt will further limit his ability to perform these activities in the future.
64 Counsel for the defendants submitted that the general practitioner and physiotherapist recorded increased improvement in the range of movement of both shoulders. This evidence needs to be seen in context. In March 2012, Dr Ooi said that she expected the plaintiff’s pain and shoulder movements would fluctuate from time to time and eventually stabilise. Mr Fogarty and Dr Doig expected development of osteoarthritis. Further, the plaintiff showed the Court the range of movement that he could perform. His evidence was that there were areas he could not reach. All doctors accepted his limitations.
65 The plaintiff said he did not perform tasks above head height. Mr Doig said the plaintiff was likely to be restricted in pushing, pulling, lifting or carrying and doing those activities repetitively. Mr Doig said the plaintiff was likely to be restricted in prolonged use of each shoulder in overhead activities, and using steps and ladders would be difficult. He said those restrictions are significant and will continue for the foreseeable future. The plaintiff said the restrictions affect his ability to garden, prune, mow the lawns, clean the gutters and in the maintenance of his house. He said he can mow the lawns, but often his daughter completes the task. Currently, his son-in-law cleans the gutters.
66 He told the Court, and the doctors whom he saw, that he can no longer play golf, which he played on a weekly basis and up to three times a week before the injury. This was confirmed in the general practitioner’s records and was noted by other doctors. For a sixty-six year old plaintiff who has played golf on a regular basis to be deprived of that activity at the time of retirement is a very significant consequence.
67 Prior to the injury, he played tennis, football, table tennis and cricket with his grandchildren. These were activities which he enjoyed and can no longer undertake. Further, he can no longer lift up his younger grandchildren and give them a cuddle. He said this makes him feel sad.
68 Counsel for the defendants submitted that, because the plaintiff sees his grandchildren as often as he did prior to the injury, his relationship is unchanged. I do not accept that submission. I accept that the plaintiff’s inability to participate in sporting activities with his grandchildren, and to pick up his younger grandchildren and cuddle them, affects his enjoyment of his relationship with his grandchildren. I accept that is a significant consequence.
69 The plaintiff said that his sex life is now non-existent and his wife sleeps in another room. He reported this consequence to the doctors who he saw.
70 The plaintiff can no longer work. His evidence was that he planned to work past the age of sixty-five. He worked for the first defendant for over twenty years and had been in employment all his working life. He told the Court that he is not enjoying his retirement and is looking for suitable employment, but has been unsuccessful. Mr Doig said the plaintiff could possibly work ten hours per week in a sedentary position but even that might be too difficult. Dr Ooi and Mr Kierce noted that sedentary work caused pain. I accept that the plaintiff is unlikely to be able to work in a sedentary position, even for ten hours per week. I acknowledge that the plaintiff is sixty-six years of age; however, there are many people in the community who are working beyond the age of sixty-five. I accept that but for the plaintiff’s impairment, he would have worked beyond the age of sixty-five and derived enjoyment from his work. This represents a loss to the plaintiff and is a consequence I can take into account.
71 I reject the submission of counsel for the defendants that the plaintiff has not properly utilised all his skills and experience in seeking alternate work. The skills and experience counsel was referring to related to employment the plaintiff engaged in twenty to thirty years ago.
72 I accept that the plaintiff was stoical in relation to the level of pain he suffered, the treatment he sought and how his injury affected his day-to-day living. The plaintiff’s stoicism cannot hide the consequences of the injury to this plaintiff. I am permitted to take into account the plaintiff’s stoicism.[18]
[18]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at [3], Hayden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at [47]
73 I accept the plaintiff has suffered the abovementioned consequences. Those consequences are supported by the evidence of the plaintiff and the medical evidence. No doctor suggested that the plaintiff in any way exaggerated the consequences of his injury. I accept that he suffers pain which affects his activities of daily living. His sleep is affected. He can no longer participate in activities with his grandchildren. He is unable to participate in golf, which was a sport he played on a regular basis. Further, the plaintiff was unable to continue the work which he had enjoyed, and had to retire earlier than he anticipated. Whilst he is looking for part-time work, the medical evidence suggests that he will not be able to cope with part-time work. I accept that these consequences would arise due to the injury to the right shoulder alone, as well as to the bilateral shoulder injury.
74 I accept that the plaintiff has suffered an impairment which is permanent. There was no medical evidence to suggest that the plaintiff’s injury will improve. In fact, the medical evidence was that the plaintiff was at increased risk of developing arthritis on the right side.[19]
[19]Dr Doig and Mr Fogarty
75 I am persuaded, on the balance of probabilities, and in light of the evidence as a whole, that the consequence the plaintiff suffers satisfy the test. I accept the pain and suffering consequences to this particular plaintiff are serious. I accept that, when judged by a comparison with other cases in the range of possible impairments, the consequences of the impairment can be fairly described as being at least “very considerable” and certainly more than “significant or marked”. The evidence is that the plaintiff’s dominant arm is his right arm. The evidence is that the right arm is slightly more severe than the left. I accept that on the evidence, the plaintiff succeeds on the right shoulder when looked in isolation. Even if I am wrong on that, it is permissible for me to consider the combined function of the two shoulders.
76 The above position is reached purely by reference to the plaintiff’s physical condition. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s134AB(38)(h) of the Act.
77 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering is successful.
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