King v VWA
[2018] VCC 1969
•30 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-00796
| JOHN KING | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | His Honour Judge Dyer | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 September 2018 | |
DATE OF JUDGMENT: | 30 November 2018 | |
CASE MAY BE CITED AS: | King v VWA | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1969 | |
REASONS FOR JUDGMENT
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Subject: Accident compensation
Catchwords: Left shoulder injury; disentanglement; credit
Legislation Cited: Accident Compensation Act 1985 section 134AB
Cases Cited: Carbone v Toyota Motor Corporation Australia Limited [2017]
VSCA 249; Mutual Cleaning and Maintenance Pty Ltd v
Stamboulakis [2007] VSCA 46; (2007) 15 VR 649
Judgment: Leave granted for pecuniary loss and pain and suffering
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J.P. Brett QC with Mr A.D.B. Ingram | Arnold Thomas & Becker |
| For the Defendant | Mr E. Makowski | Thomson Geer |
HIS HONOUR:
Introduction
1 Mr King is presently 68 years of age and no longer working. He had extensive experience in local government administration where he worked in relatively senior positions up until 1989. He then undertook some further training with a view to commencing a landscaping business, but this did not eventuate. He lived on his superannuation earnings up until commencing employment as a subcontract courier driver with Snap Express Pty Ltd (“the employer”) in April 2000.
2 The work which he then performed involved general pick-up and delivery of freight as directed. On 5 January 2001 he suffered injury to his left shoulder when lifting a tub of medical instruments weighing approximately 20 kilograms from his vehicle. He completed a WorkCover claim which was then submitted. Apparently liability was accepted, but limited to Mr King’s medical expenses. He initially did not lodge any claim in respect of weekly payments of compensation, although maintains that he had an inability to work subsequent to the date of injury.
3 He did ultimately receive some weekly payments of compensation between 2013 and 2015 when he reached his 65th birthday.
4 Mr King now seeks leave pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to claim damages in respect of both pecuniary loss and pain and suffering on the basis that the injury to his left shoulder is a serious injury as defined.
5 Mr Brett QC, who appeared with Mr Ingram on behalf of the plaintiff, outlined the unusual circumstances in which Mr King’s initial claim was managed, which he submitted had significant implications in respect of both diagnosis of the condition and the treatment provided. Nevertheless he maintained that the consequences currently affecting Mr King were referrable to the initial compensable injury.
6 Mr Makowski, who appeared on behalf of the defendant, identified the genesis of the plaintiff’s current condition as a significant issue, particularly as to whether Mr King’s current complaints had a substantial organic basis or otherwise. He further challenged the plaintiff’s entitlement to leave on the basis that he retained a current work capacity that did not entitle him to a grant of leave.
7 Mr Makowski also identified the plaintiff’s credit as a relevant issue in dispute, highlighting the medical histories provided to various medical examiners.
8 Mr King was the only witness required for cross-examination. The parties otherwise relied upon material tendered from their respective court books.
The lay evidence
9 Mr King had affirmed two affidavits in support of his application. The first affidavit of 8 May 2017 set out in some detail his employment background, noting his tertiary qualifications and 20 years employment in local government prior to both his extended period of semi-retirement and his return to delivery driving in 2000. Mr King then described in some detail the injury sustained on 5 January 2001 and the initial medical treatment, which seems to have ceased some time in 2002.[1]
[1]Exhibit B, p 10 [26] to [33]
10 At the time of that first affidavit Mr King was seeing his general practitioner on a monthly basis and taking mainly Mersyndol Forte, and Endone on a less frequent basis.[2]
[2]Exhibit B, p 11 [35]
11 Mr King also deposed in his first affidavit to ceasing employment at the end of June 2002 due to pain in his left shoulder. An attempt to return to work as a vineyard pruner in 2003 was unsuccessful.
12 He also made reference to the symptoms of pain, sleep disturbance and general restriction impacting on his left shoulder at that stage. The affidavit made reference to cessation of golf and also to emotional difficulties that were said to be partly due to the break-up of his marriage, which Mr King believed had ultimately been a consequence of the original shoulder injury.[3]
[3]Exhibit B, p 12 to 13 [54]
13 The most recent affidavit was sworn by the plaintiff in Queensland, where he now resides, on 30 August 2018. He had moved to Queensland in late February 2018 to live with the family of his eldest son, Vaughan, who is now 41 years of age. He had previously been living with his brother in Montrose since 2014.[4]
[4]Exhibit B, p 15 [3] to [5]
14 Mr King described his life as being:
“… through an enormous amount of turmoil over the past 10 years following the breakup of my marriage, the loss of the family home following divorce, the loss of my accommodation over the past 4 years with my brother and now having to rely on the generosity of my eldest son and his family in Queensland to take me in.[5]
[5]Exhibit B, p 15 [6]
15 Mr King was no longer having any active treatment, but was continuing to take medication, being Mersyndol Forte, Endone, Lyrica, Mobic and Targin. He also deposed to having difficulty sleeping, “due to my left shoulder and back.”[6]
[6]Exhibit B, p 15 [7] to [8]
16 He confirmed that he was right hand dominant, but stated in relation to his left arm:
“The constancy of pain continues and I have a loss of strength of my left arm. My movements are restricted depending on the level of force that I use or that I put my left arm through. The pain that I feel within the left shoulder remains and it increases with forceful movements.”[7]
[7]Exhibit B, p 15 [9]
17 The affidavit also made reference to various recreational activities, including golf and even cricket. (I note Mr King is now 68 years of age). He confirmed that he was still able to drive, perform gardening, go shopping and “do bits and pieces of tidying the house.” At the time of swearing this affidavit he had viewed some surveillance footage that was later shown during the hearing. Mr King had made some comments in his recent affidavit concerning his activities, which included surveillance of him washing his vehicle.
18 Finally, the affidavit made reference to ongoing emotional difficulties which followed the breakdown of his marriage which:
“… I attribute to the stressors and tensions of not working and constant frustration.
I feel upset, I feel impacted upon by the medication that I take and I feel as though a massive part of my life has been taken up by this shoulder injury that has never recovered.”[8]
[8]Exhibit B, p 16 [17] to 17 [18]
19 Mr King was cross-examined. I noted the following matters as relevant to my determination.
· Mr King had worked for nearly 20 years in administrative work for local government before ceasing work in 1989 and living off superannuation earnings.[9]
[9]Transcript (“T”) 17, Line (“L”) 13-21
· He continued to live off superannuation earnings until the principal was ultimately depleted by about 1999. He returned to work mainly for financial reasons, still having two children at high school and his wife working part‑time.[10]
[10]T 18, L 19-27
· In local government he had been senior officer at the Shire of Seymour, Shire Secretary and Chief Executive Officer prior to working at the City of Nunawading. He decided to resign when the council went into an organisational review of its structure.[11]
[11]T 19, L 13-25
· Mr King did not believe he was computer literate, but used a tablet to “keep tabs on my banking and my superannuation.”[12]
[12]T 20, L 2-5
· He had suffered from migraines working in a senior position in local government. “With medication they seem to go away,” and only returned after his fall.[13]
[13]T 20, L 25 to T 21, L 27
· Mr King stated that he had suffered from high blood pressure which was a familial condition. He was taking Mersyndol Forte for the migraines that developed with high blood pressure. He now rarely suffers from migraines.[14]
[14]T 22, L 2-24
· Mr King had seen a surgeon, Mr Dunin, in 2002 on one occasion. Mr Dunin apparently palpated a lump in his shoulder which Mr King believed was still there. Mr King also agreed that if Mr Dunin had noted “he also has frequent migraines associated with nausea and vomiting,” this would be correct.[15]
[15]T 23, L 10-21
· Mr King agreed he had not seen another specialist between 2003 and 2008, but was seeing a general practitioner and had physiotherapy up until 2005 when the insurer ceased to reimburse him for the costs.[16]
[16]T 23, L 24-30
· In answer to my question Mr King agreed that he might have told Mr Dunin in March 2003 that he had seen two physiotherapists without much relief.[17]
[17]T 24, L 24-30
· Between 2003 and 2008 Mr King did not do any work apart from working briefly in vineyards. He had not secured any employment apart from the vineyard, and had not worked to the present time.[18]
[18]T 25, L 6-26
· He had not received any WorkCover payments, he “just kept contacting QBE and asking them why they wouldn’t pay.” “We’ll investigate,” was their only response.[19]
[19]T 26, L 1-6
· Mr King did not agree that his shoulder was improving between 2004 and 2007, and stated it was painful every single day for those five years.[20]
[20]T 26, L 16-19
· He had separated from his wife in 2007, but lived under the same roof for financial reasons for another six years.[21]
· Mr King agreed he had suffered anxiety and depression and a period of severe sadness since the separation, but denied that this had prompted him to make a claim for his shoulder injury.[22]
· Mr King agreed he had seen Dr Brian Lovell for treatment in 2008, but after one failed injection he did not continue with that treatment and did not see another specialist until about 2013.[23]
· He agreed that he had told his general practitioner he was unable to lift or carry with his left arm or hand in December 2012.[24]
· Mr King agreed with a note that he was not on a high dose of medication in comparison to other workers in December 2012. He was taking one or two Mersyndol Forte per day.[25]
· He then agreed that he would take the Mersyndol Forte “when I used to get an occasional migraine” before the fall. He stated he was not using it very regularly before the fall.[26]
· Mr King could not recall prescriptions of Mersyndol Forte in 1995, July 1996, February 1997, August 1997 or December 1998, but stated:
“If the doctor prescribed it, I must’ve taken it.”
[21]T 26, L 20 to T 27, L 1
[22]T 27, L 4-22
[23]T 27, L 28 to T 28, L 16
[24]T 29, L 6-14
[25]T 30, L 8-15
[26]T 31, L 22-31
20 He believed they were for migraines.[27]
[27]T 35, L 24 to T 36, L 22
· Mr King agreed he had told a Dr Hucker, a pain specialist, in July 2013 that the pain was severe ranging between 7 out of 10 and 10 out of 10 and worsening towards the end of the day. The only thing he found beneficial was Mersyndol Forte.[28]
[28]T 41, L 4-14
· He also agreed that his wife had left him shortly before this consultation and he would have been upset at that time. He denied the doctor’s note, “he cried throughout most of the consultation in discussion of his family.”[29]
[29]T 42, L 8-22
· Mr King agreed he saw Dr Hucker on a second occasion, August 2013, with the intention of having a further injection in the shoulder, although it was not performed. He agreed when he had injections in 2008, performed by Dr Lovell, he did not like them.[30]
[30]T 43, L 11-22
· Mr King agreed that he had seen a Dr Chou for the insurer in August 2013 complaining of severe pain, “9 out of 10, or even sometimes 10 out of 10.” He believed it was still severe today.[31]
[31]T 44, L 4-31
· He agreed that in August 2013 he was having difficulty dressing and undressing and could not elevate his left arm without pain. He stated he stilled suffered pain but he could lift it, but was not capable of carrying heavy objects with it.[32]
[32]T 45, L 8-16
· Mr King agreed that he had undertaken a pain management program for seven months, twice a week, but the program was delayed after he had a fall and broke his wrist. The wrist had recovered over time, although he still got arthritic pain in it. He agreed the Mersyndol Forte, “probably has some effect,” with the wrist pain.[33]
[33]T 45, L 25 to T 46, L 18
· Mr King agreed he had back pain between his shoulder blades, which he related to the shoulder pain. He also had “a blown disc” in the lower part of his back which he suffered when he fell breaking his wrist.[34]
[34]T 47, L 11-24
· Mr King stated that the back pain was ongoing at present but, “not as much”. He was not taking Mersyndol Forte, but was taking other medications:
“Mobic is one of them. Lyrica is another one, Targin is another one, sometimes Endone.”
There were prescribed by his general practitioner in Brisbane.[35]
· Mr King stated he had not taken Mobic as it affected his liver, but agreed that the sciatic problem affects him driving for prolonged periods and he sometimes has a problem getting out of bed. Standing is fine, but bending could be a pain.[36]
· Mr King agreed with a doctor’s notation in Brisbane in July 2018 that he was living with his eldest son on a temporary basis and had driven up from Melbourne in his own car.[37]
· Mr King agreed with a notation by Dr Bruce Low in July 2018 as follows:
“He does not use his left arm and keeps it down by his left side. He has become a one-armed individual.”[38]
[35]T 47, L 25 to T 48, L 1
[36]T 50, L 9-24
[37]T 51, L 26-31
[38]T 52, L 18-31 & Exhibit 3, p 4
21 A surveillance DVD was then played during cross-examination. This related to observations of the plaintiff on 8 and 9 September 2017.[39]
[39]Exhibit 2
22 The surveillance showed Mr King using a Bunnings trolley to move a package of firewood to the boot of his car. He then lifted this into the boot of the car with both arms, but did not appear to elevate the left arm significantly, either in this action or in moving other items in the boot. When cross‑examined about this action Mr King estimated the weight of the package of firewood to be between 15 and 20 kilograms.[40]
[40]T 57, L 15-25
23 The surveillance showed Mr King to use his left arm to close the tailgate of the station wagon vehicle. He agreed that part of his hand went up above head height, although I did not observe the footage to show him elevate his shoulder.
24 The surveillance footage also showed Mr King attending a carwash where he appeared to use both the soaping brush and the pressure washer using both hands. In cross-examination it was suggested he was using his left arm normally to clean the car. Once again Mr King did not deny what was on the surveillance material, but disagreed that his left arm was providing the force when cleaning the tyres on his vehicle with a soaping broom.
25 When it was suggested to him that he agreed telling a doctor that he was “effectively a one-armed individual” he stated:
“I don’t normally use both arms. I don’t go out of my way to use both arms, no.”[41]
[41]T 57, L 15-20
26 Mr King was pressed on a number of other activities, including putting on a jacket as depicted in the surveillance footage. He conceded that following the pain management program his only problem with the left arm was lifting above his head.[42]
[42]T 58, L 10-26
27 When cross-examined about using his left arm to close the tailgate on his vehicle, somewhat bizarrely Mr King described in some detail exercises he had performed and measurements he had recorded following his completion of the pain management program.[43]
[43]T 60, L 13 to T 62, L 7
28 Mr King confirmed in cross-examination that he was only taking Mersyndol Forte for the left shoulder pain, and was taking Targin and Lyrica for the sciatica.[44]
[44]T 62, L 23-31
29 Finally, in cross-examination when asked about his current activities, he agreed that he was able to mow the lawn, shop and participate in a pain management program using weights. He had not played golf since some time in 2000, and accepted that golf might be inhibited by sciatica, “only as far as the walking part would be concerned.”[45]
[45]T 63, L 1-16
30 He accepted that he still had wrist pain and had previously acknowledged sciatica. He accepted that he had driven from Queensland to Melbourne for the purposes of this hearing, stating that there was no problem in driving with his left shoulder as he used an automatic vehicle and there was no problem with the gears. He stated that if he was sitting for extended periods he would have to get out because of the sciatica and the shoulder.[46]
[46]T 64, L 16 to T 65, L 4
31 Mr King was briefly re-examined and clarified his use of Mersyndol. He stated that he would usually take two tablets per day which had been the situation since his initial injury.[47] He also demonstrated the extent to which he believed his shoulder movement was restricted.
[47]T 65, L 11-26
The medical evidence
32 The plaintiff tendered into evidence three early reports from Mr Michael Shannon, orthopaedic surgeon, who had examined Mr King on behalf of the WorkCover insurer in April 2008. His opinion was apparently sought at that time in relation to further investigations and treatment. Mr Shannon’s initial opinion was that Mr King’s condition was consistent with a rotator cuff injury, but a pain syndrome had subsequently developed.[48] He reviewed some radiology of both the neck and the left shoulder, concluding that they showed evidence of minor degenerative change, but in the shoulder:
“… no associated bursitis and the rotator cuff is normal.”[49]
[48]Exhibit B, p 20
[49]Exhibit B, p 23
33 He confirmed his opinion that the symptoms represented what he described as a chronic pain syndrome.
34 Finally, Mr Shannon wrote to the insurer on 24 September 2008 suggesting that nerve root blocks, as proposed by another doctor, were unlikely to be successful in diagnosing the source of pain.[50]
[50]Exhibit B, p 24
35 The plaintiff also tendered two reports from Dr Michael Chou dating from August 2013.[51] Dr Chou’s opinion at that time was that Mr King was suffering from chronic pain and a frozen left shoulder, which resulted from the work injury on 5 January 2001.
[51]Exhibit B, p 25-33
36 Reliance was also placed on the opinion of Dr David Elder, a specialist in occupational medicine. Dr Elder had provided a report to the insurer on 6 March 2017.[52]
[52]Exhibit B, p 34-40
37 Somewhat curiously Dr Elder did not actually give any real diagnosis of the injury, but did note some wasting of the supraspinatus on examination. He also made reference to a “palpable lump at the distal clavicle.”[53]
[53]Exhibit B, p 36
38 Dr Elder regarded Mr King as having “left shoulder dysfunction relevant to the original injury.”[54]
[54]Exhibit B, p 36
39 A number of early reports from Doctors Mack, Dunin, Lovell, Sticklen and Raleigh were tendered into evidence.[55] The most recent of these reports was from Mr Eden Raleigh, an orthopaedic surgeon, who examined Mr King in April 2013 at the request of his then general practitioner, Dr Sticklen. Apart from noting complaints of chronic pain and consumption of Mersyndol, there is little in his report to lead to any firm conclusion as to the nature of the injury.
[55]Exhibit B, p 41-48
40 Mr Raleigh commented:
“I cannot see any pathology apart from AC joint arthritic changes, there is nothing torn, broken or ruptured.”[56]
[56]Exhibit B, p 47
41 The more recent reportage is from the treating general practitioner, Dr Kim Le, Mr Ash Chehata, orthopaedic upper limb surgeon, and Dr Clayton Thomas, rehabilitation and pain medicine consultant. Dr Le’s diagnosis is stated as:
“Chronic left shoulder and Thoracic back pain. … As a subsequent from his chronic pain leading to financial hardship and relationship breakdown, he now has depression/anxiety.”[57]
[57]Exhibit B, p 64
42 Mr Chehata, in a medico-legal opinion dated 30 April 2018, disagreed with the earlier diagnosis of frozen shoulder and opined that Mr King was most probably suffering from scapulothoracic bursitis with associated complex regional pain syndrome. He believed the incident involving the initial injury most likely caused a soft tissue injury which later developed into a complex regional pain syndrome. He also expressed the view that the left shoulder injury had resulted in significant psychological issues in addition to significant anger and frustration. He did not believe it was possible for Mr King to return to any form of employment. He also believed it was imperative for him to seek urgent psychological and psychiatric counselling.[58]
[58]Exhibit B, p 56
43 The final report relied upon by the plaintiff was from Dr Clayton Thomas who provided a medico-legal opinion in June 2018. Dr Thomas expressed the view that Mr King was suffering from a chronic pain syndrome which he believed was more related to the muscles around the shoulder “than the shoulder per se.”[59] He believed it was directly related to the original incident. He noted that Mr King had experienced pain now for 18 years and did not expect this situation to abate to any extent.[60]
[59]Exhibit B, p 60
[60]Exhibit B, p 61
44 Both Mr Chehata and Dr Thomas were provided with the surveillance DVD which was tendered in evidence in this case.[61] I note that the opinions expressed in their reports are given in light of viewing this material.
[61]Exhibit 2
45 The defendant relied upon recent opinions from Dr Bruce Low, orthopaedic surgeon, who examined Mr King in Brisbane in July 2018. He prepared a report dated 27 July 2018.[62] Dr Low was then provided with the surveillance DVD and prepared a supplementary report dated 20 August 2018.[63]
[62]Exhibit 3, pp 1-12
[63]Exhibit 3, pp 13-16
46 In his first report Dr Low described Mr King as suffering a chronic pain syndrome affecting his neck, left shoulder and left upper limb.[64]
[64]Exhibit 3, p 6
47 Dr Low also commented at that time as to the relative lack of investigation or treatment that had been provided and stated:
“Because he has chronic pain that has been present for 20 years or so it is unlikely anything is going to take the pain away. He is 68 years of age and has no work capacity. His overall management is complicated.”[65]
[65]Exhibit 3, p 10
48 In the second report provided after viewing the surveillance DVD, Dr Low’s opinion was a lot more guarded. He stated:
“I have no doubt your client has some pain in the left side of neck, left shoulder and left arm; however, watching the surveillance video, he does not appear to be anywhere near as disabled as his presentation to me on 27.07.2018 indicated. … Whether he could withstand doing heavy physical repetitive work above shoulder height or on a continual ongoing basis, I do not know but he is certainly not as disabled as he appeared to present to me.”[66]
[66]Exhibit 3, p 16
49 Finally, Mr Makowski on behalf of the defendant tendered into evidence two reports from a previous treating pain specialist, Dr Tim Hucker.[67] These reports were prepared in July and August 2013 and were sent to Dr Sticklen, the then treating general practitioner. It is unnecessary to refer in any detail to these reports other than to comment that they show some difficulties in the doctor/patient relationship at that time. The matters of substance in the reports were canvassed during cross-examination.
[67]Exhibit 3, pp 17-19
Analysis
50 The essential issue to be determined in this application centres on the nature of the injury that was sustained by Mr King in 2001. In final submissions Mr Makowski on behalf of the defendant submitted that the non-organic features dominated the plaintiff’s presentation, whereas Mr Brett QC on behalf of the plaintiff urged me to conclude that Mr King’s shoulder condition was substantially organically based.
51 Mr Brett QC conceded that there were very significant psychological features impacting on the plaintiff, but these were said to be consequences of the original organic injury and the extensive period of time during which the plaintiff had experienced ongoing pain and restriction.
52 The plaintiff’s credit was also significantly in dispute, largely due to significant disparities between the description of his injury given in evidence before me, and to most of the examining medical practitioners, compared with the range of movement and use of the left arm that was apparent in the surveillance footage dating from September 2017. Fortunately many of the medical practitioners had been given an opportunity to view the surveillance material and their comments are helpful in assisting with my determination.
53 I took the opportunity to carefully review the surveillance material following the hearing and concluded that the activities performed by Mr King demonstrate some degree of caution and restriction of use of the shoulder, although to a much lesser extent than he described in his affidavit material, his history to doctors, and in evidence before the surveillance footage was shown. In my view the comments by Dr Low in his second report dated 20 August 2018[68] most accurately reflect my own conclusions.
[68]Exhibit 3, p 16
54 In assessing the credit of Mr King, I take the view that he was not consciously exaggerating the extent of his disability in evidence before me. I agree with Dr Low’s general assessment that his activities recorded in the surveillance material demonstrated a much greater range of motion than he admitted in evidence. Nevertheless, I did not gain the impression that he was either evasive or consciously exaggerating the extent of his disability. He did make concessions concerning other injuries and matters such as the stress from his marital breakdown that was not in my view consistent with a conscious attempt to mislead the court. I regard his evidence as to the nature and extent of his disability as unreliable, save where it has been corroborated by informed medical opinion.
55 Ultimately I am satisfied that the plaintiff suffered an organic injury to his left shoulder in the incident in 2001. I am also satisfied that a substantial organic basis for that injury, whether described as a pain syndrome or otherwise, continues to play a significant role in Mr King’s ongoing symptomatology. Nevertheless, whilst accepting that the video surveillance is “quite a blunt instrument”, as described by Dr Low, I do not believe that the consequential loss of use of the left shoulder and arm is at or near the level as described by Mr King.
56 I also note that Dr Low is equivocal on the issue as to whether Mr King could perform “heavy physical repetitive work above shoulder height on a continuing ongoing basis.”
57 The remaining medical opinions from both the treating general practitioner, Dr Le, Mr Chehata and Dr Thomas, were all of the opinion that the shoulder injury would preclude Mr King from permanently returning to any form of employment. Each of these doctors provided such an opinion after viewing the surveillance material.
58 On balance I am satisfied Mr King has no capacity for his pre-injury employment or any suitable employment.
59 The statutory test whereby a plaintiff establishes an entitlement for leave is very different in nature from the common law test governing an entitlement to damages. In the present case Mr King does not deny suffering sciatica following a fall in recent years. He does not deny that this condition requires strong ongoing medication currently prescribed by a general practitioner in Queensland. He also admitted that since moving to Queensland approximately six months prior to the hearing he had not sought any treatment from any practitioner in that state in relation to his shoulder condition.
60 He also gave what I regard as conflicting evidence concerning his use of the drug Mersyndol, which he claims to have used mainly since the occurrence of the shoulder injury in 2001. Notwithstanding this evidence, the earlier medical records put to him in cross-examination recorded prescriptions of that drug on a regular basis between December 1995 and August 1999.[69]
[69]Exhibit 1
61 In final address Mr Makowski referred me to a recent decision of Carbone v Toyota Motor Corporation Australia Limited[70] and Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis.[71] These authorities are relevant particularly on the question of disentanglement of physical and psychological contributions to the plaintiff’s left shoulder condition.
[70][2017] VSCA 249
[71][2007] VSCA 46; (2007) 15 VR 649
62 Carbone also helpfully sets out the process to be followed in assessing whether a plaintiff has satisfied the statutory test in order to be granted leave to claim damages for loss of earning capacity.[72]
[72]Carbone v Toyota Motor Corporation Australia Limited [2017] VSCA 249 at [61] to [62]
63 In short, the test here to be applied can be stated as follows:
i)Has the plaintiff established that his left shoulder injury has resulted in an impairment to his loss of earning capacity that is serious in the manner defined by s 134AB(38)(b) and (c)? The simple answer to that question is yes. Indeed there is no medical material that would suggest any other conclusion.
ii)Pursuant to s 134AB(38)(e) Mr King must demonstrate that he has suffered a loss of earning capacity of 40 per cent or more, measured according to the formula set out in s 134AB(38)(f). The loss of at least 40 per cent formula has little application in the present case as it is common ground that apart from a brief attempt to work in a winery in 2003, Mr King has been unemployed since 2001, and there is no argument advanced that there was suitable employment available for him in the relevant period shortly after the incident occurred. Indeed, his attempt to work in a winery would seem to be totally unsuitable for a plaintiff claiming injury impacting on the use of either of his upper limbs.
64 The third principle set out in Carbone relates to s 134AB(38)(g) concerning the plaintiff’s onus to establish a relevant loss of earning capacity after taking into account rehabilitation and training. Whilst it is true that the plaintiff has such an onus, the undisputed facts in the present case show that Mr King’s prior work experience, his education and training were in an office environment prior to substantial reliance upon modern technology. He has not worked in local government since 1989. Apart from his interest in viticulture and his unsuccessful attempt to work in a winery, there is no evidence to suggest that any rehabilitation or training would have increased his capacity for any suitable employment.
65 In final submissions on behalf of Mr King, Mr Brett QC submitted that the test in relation to leave for loss of earning capacity was a simple one. If the court is satisfied that as a consequence of the left shoulder injury Mr King has been unable to work in any suitable capacity for a period now approaching 17 years, and there is no evidence to suggest a change in the future, leave should be granted.
66 Although Mr Brett QC’s submission is a somewhat abbreviated form of the test set out in Carbone, I am satisfied that for the purposes of leave in respect of pecuniary loss, the plaintiff has satisfied me that leave should be granted.
67 There is no need for the plaintiff to further satisfy me in relation to an entitlement to claim pain and suffering damages.[73]
[73]Advanced Wire and Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170
Conclusion
68 I am satisfied that the plaintiff has proved an entitlement for leave, both in respect of loss of earning capacity and pain and suffering damages. I propose to grant leave in accordance with the provisions of s 134AB(16)(b) of the Act. I will hear the parties in relation to the formal order sought and on the question of costs.
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