McLean v Gordon Technologies Pty Ltd
[2011] VCC 1481
•28 September 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-02414
| VLADAN McLEAN | Plaintiff |
| v | |
| GORDON TECHNOLOGIES PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 and 20 September 2011 |
| DATE OF JUDGMENT: | 28 September 2011 |
| CASE MAY BE CITED AS: | McLean v Gordon Technologies Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1481 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – whether the consequences of the injury to the left shoulder were “very considerable” in respect of pain and suffering and loss of earnings capacity – worker under 26 years of age at time of injury – credit of plaintiff.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V A Morfuni SC with | Henry Carus & Associates |
| Mr S J Loftus | ||
| For the Defendant | Mr P G A Montgomery | Minter Ellison |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 11 May 2010 by which the plaintiff applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by him arising out of or in the course of his employment with the defendant on or about 19 March 2003.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 The body function which the plaintiff says has been lost or impaired is the left shoulder with referred pain into his neck.
4 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined. • The plaintiff tendered the following documents in evidence: ƒ Exhibit A – PAYG payments summary in respect of the
plaintiff for the period 1 July 2010 to 4 January 2011 and
associated BAS statements.
ƒ Plaintiff’s Court Book (PCB).
• The defendant tendered in evidence the following documentation:
ƒ Exhibit 1 – Video surveillance CD for the dates 11 April 2010
and 1 May 2010.ƒ Exhibit 2 – Video surveillance CD for the dates 4 September
2010, 12 September 2010 and 18 September 2010.ƒ Exhibit 3 – Video surveillance CD for the dates 30 April 2011,
2 May 2011 and 6 May 2011.ƒ Exhibit 4 - Defendant’s Court Book (DCB).
5 At the commencement of the application, Mr Morfuni, on behalf of the plaintiff, announced that the application for serious injury was brought under paragraph (a) of the definition set out for “serious injury” in s.134AB(37) of the Act. The impairment of the body function was to the left shoulder. Mr Morfuni stated that the application under part (c) of that section was abandoned by the plaintiff.[1]
[1] Transcript (“T”) 30, L2
6 Mr Montgomery, on behalf of the defendant, at the commencement of the proceeding conceded that causation was not an issue in this application.[2]
[2] T 43, L30-31
The Statutory Scheme
7 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of s.134AB of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
8 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[3]
(b)
The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[4]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d)
Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently.
(g)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-section (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[3] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[4] Barwon Spinners, at paragraph 33
9 When a worker is under twenty-six years of age at the date of injury, pursuant to s.134AB(38)(e)(ii) of the Act, he must establish that at the date of the hearing he has a loss of earning capacity of 40 per cent or more. Further, he must establish, pursuant to sub-section (e)(ii), that he will, after the date of the hearing, continue to have a permanent loss of earning capacity which will be productive of a financial loss of 40 per cent or more. Sub-section (f), which relates to older workers and requires consideration of income from personal exertion in the three years before and the three years after injury, does not apply.
10 In the Second Reading Speech on the Accident Compensation (Common and Benefits) Bill it was made clear that when assessing the loss of economic capacity of a worker under twenty-six years, common law principles were to be applied.
11 In the Legislative Assembly on 23 May 2000, the Honourable M M Gould, Minister Assisting the Minister for WorkCover, said:
“The three-year pre and post-injury period does not apply in the case of a worker referred to in section 5A(7) of the act or a worker under the age of 26 years at the date of injury. The government recognises that apprentices and workers undergoing training for the purpose of becoming qualified and in general terms workers under the age of 26 years should not be subject to a six-year period of inquiry of earnings or earning capacity. In the case of such workers, a court may have regard to the probable income from personal exertion which the worker would have earned but for the injury over the worker’s probable earning life. This means the usual common-law position prevails.”
12 I accept that the rationale for the insertion of this section was not to disadvantage young workers in assessing an “after injury” earnings figure against their “without injury” earnings.
13 This case is one in point where the plaintiff was engaged by the defendant at the time of the injury and was only earning $15,548.00 taxable income per annum at that time.[5] If the plaintiff’s “without injury” earnings were assessed in the usual manner applied to older workers, the plaintiff would fail in his claim for loss of earning capacity if his “after injury” earnings exceeded approximately $9,500 per annum – an unfair situation when the likelihood was that he may have had the capacity to earn far in excess of what he was earning at the date of injury by doing either more hours of work or being promoted to a far more remunerative position after he had fully qualified.
[5] PCB 48
14 In this case, I have to be satisfied, on the balance of probabilities, that the loss of earning capacity to the plaintiff exceeds 40 per cent and that the loss is permanent in the sense it is likely to last for the foreseeable future.
15 I am required by s.134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background
16 The plaintiff was born on 11 January 1980 in Serbia. He is now thirty-one years old. He is a single man who lives with his mother. He completed Year 12 at Scoresby Secondary College and then commenced a junior draftsman course at Swinburne Technical College. He studied at Swinburne Technical College and at Wodonga TAFE. The plaintiff obtained a Certificate IV and Diploma in Automotive (Motor Sport) in 2005 from Wodonga TAFE.
17 The plaintiff commenced his employment with the defendant at the beginning of 2003. He was a junior draftsman working four days a week and was given the fifth day off to study his advanced diploma at Swinburne.[6] At the end of 2003, the plaintiff ceased his employment with the defendant to pursue his studies in Wodonga. The plaintiff studied in Wodonga for the years 2004 and 2005.
[6] PCB 1
18 Immediately upon graduating from the Wodonga course, the plaintiff obtained employment at Meridian Motorsport in the early part of 2005. He was unable to continue his employment at Meridian due to a motor vehicle accident and injuries received to his left arm in Queensland in the early part of 2005. The total period of employment at Meridian was approximately three months. The plaintiff was then employed as a motor mechanic at Regan Motors for the period 2006 through to 2009. He then worked at Booran Motors from 2009 through to the end of 2010. In the period from approximately March 2010 onwards, the plaintiff has been developing his own business, which he has conducted full-time since the commencement of 2011. The plaintiff conducts the business known as EasternEuro.com.au. The business is a motor repair and service company for predominantly Peugeot and Citroen cars.
The Injury with the Defendant
19 The plaintiff sets out the circumstances in which he was injured in his affidavit.[7] Mr Montgomery, on behalf of the defendant, had previously conceded that causation was not an issue in this application. However, he challenged the plaintiff about the delay between the date of the injury, 19 March 2003, and his attendance upon his doctor on 24 March 2003. He further challenged the plaintiff on the grounds that he did not make a notification of the injury to the employer until 26 March 2003.[8] I find that nothing turns on the delay by the plaintiff between the date of the incident which caused the injury to him and his attendance upon his general practitioner or his notification to his employer about the injury.
[7] PCB 2, paragraph 7
[8] PCB 51
The Plaintiff’s Medical Treatment
20 The plaintiff went to see his general practitioner, Dr Stephen Lawrence, on 24 March 2003.[9] Dr Lawrence thought that the plaintiff was suffering from a traction injury to his left shoulder joint involving the anterior capsule. The general practitioner referred the plaintiff to Mr Christopher Pullen, orthopaedic surgeon, for further examination and review.
[9] PCB 31
21 Upon reporting the injury to his employers, the plaintiff was sent to the emergency department of the Angliss Health Service on 26 March 203. He was x-rayed. The finding on x-ray was that there was no abnormality detected. The principal diagnosis was a muscular injury.[10]
[10] PCB 32a
22 The plaintiff, after seeing Mr Pullen, orthopaedic surgeon, was sent to have an MRI of his left shoulder and scapula. The MRI finding is set out at PCB 45. The findings on MRI for the plaintiff’s left shoulder were as follows:
“There is moderate thickening of the anterior band of the inferior glenohumeral ligament and partial tearing of the mid-substance of the middle glenohumeral ligament. There has been lifting of the capsule from the glenoid bone.”
23 The conclusion drawn by the radiologist, David Connell, was that there was an injury to the anterior capsule of the shoulder.
24 The plaintiff has had three cortisone injections to his left shoulder region. The first of the cortisone injections was on 21 December 2007.[11] The second cortisone injection was on 8 May 2009.[12] The final cortisone injection was on 25 February 2010.[13] The plaintiff deposes to receiving the cortisone injections but describes the relief as temporary in nature, and he only resorts to those injections when the pain is very bad.[14]
[11] PCB 39
[12] DCB 141
[13] DCB 143
[14] PCB 3, paragraph 13
25 The plaintiff has had treatment by way of physiotherapy, massage, and gymnasium programs to assist in alleviating his symptoms. He is currently attending a myotherapist once a week for pain relief.[15] The plaintiff gave evidence of using a spa and self-massage to alleviate the symptoms in his left shoulder and the pain radiating up to the left side of his neck.
[15] PCB 11, paragraph 4
26 The plaintiff also gave evidence that the takes medication to manage the pain levels in his left shoulder and neck. The medication he takes is Voltaren four times a week.[16] The plaintiff also gave evidence that he took Panadeine Forte and continues to take it as required.[17]
[16] PCB 3 and 31
[17] PCB 3, 31 and 39
27 The treating orthopaedic surgeon, Mr Pullen, has advised the plaintiff that surgery would not be an appropriate course of treatment for his condition, and hence no surgery has been undertaken.
Medical Opinions
28 I think it is unnecessary to review the medical evidence in any significant detail because there appears to be a level of agreement amongst the medical practitioners concerning the actual injury suffered by the plaintiff. In summary, the medical opinions agree that the plaintiff now suffers from quite marked crepitus in his left shoulder with associated pain in the shoulder region.
29 Dr Lawrence, the general practitioner, diagnosed the plaintiff with a traction injury to his left shoulder joint involving the anterior capsule. The general practitioner has treated the plaintiff in a conservative manner by prescribing Voltaren tablets and analgesics. He is in agreement with the use of cortisone injections which are administered by Mr Pullen. Dr Lawrence sees the prognosis for the plaintiff as being uncertain, and notes that the pain in the medial scapula and anterior capsule in the left shoulder have continued steadily over the course of his care for the plaintiff.[18]
[18] PCB 31 and 32
30 Dr Lawrence also states in his report dated 30 March 2011 that the plaintiff is substantially unemployable. In considering all of the evidence, which I will come to later in these reasons, I do not accept this statement by Dr Lawrence. I do, however, accept that the plaintiff has received and continues to receive ongoing treatment from Dr Lawrence for the pain and discomfort he suffers to his left shoulder joint and up into his neck region.
31 Mr Christopher Pullen, orthopaedic surgeon, is the treating surgeon for the plaintiff. In his report dated 3 August 2007, Mr Pullen makes the following statement:
“On examination of his left shoulder, he is tender on the medial border posteriorly of his scapula. He has crepitus which is quite marked particularly with forward flexion and abduction. He has a full range of motion of his shoulder. He has no evidence of instability. He has good strength of his rotator cuff. ...
I think this chap is suffering from left shoulder scapulo-thoracic crepitus.
This is a difficult condition to treat.”[19][19] PCB 26
32 In a later report, Mr Pullen, on 21 December 2007, made the following statement:
“He is now having ongoing problems with his left shoulder. This is particularly in his scapula region posteriorly around his medial border. He has clicking and an aching pain.”[20]
[20] PCB 29
33 Mr Pullen was the surgeon that has administered the three cortisone injections to the plaintiff on 21 December 2007, 8 May 2009 and 25 February 2010.
34 In a report dated 2 March 2010, Mr Pullen stated that as at 25 February 2010 on the last occasion of administering a cortisone injection, he discussed surgery for ongoing scapulothoracic crepitus with the plaintiff. Mr Pullen went on to say:
“Unfortunately the results of surgery are somewhat unreliable and
I cannot say that I would recommend this highly.”[21][21] DCB 143
35 It is clear from the reports of Mr Pullen that he accepts the plaintiff is suffering ongoing pain and crepitus in his left shoulder with clicking in the shoulder joint. Mr Pullen has advised the plaintiff not to have surgery on his shoulder.
36 The plaintiff was also examined by Mr Peter Kudelka, orthopaedic surgeon, for the purposes of a medico-legal report in this application. The report is dated 13 December 2010. Mr Kudelka offered the following opinion after examination of the plaintiff:
“I believe this patient sustained a mechanical injury to the left shoulder in the incident of 2003. This has failed for respond completely with respect to symptoms or function to appropriate and prolonged conservative treatment.
The present condition is discomfort and a lack of confidence in the left shoulder and an audible and palpable ‘clunk’ when abduction movements are attempted. I believe this relates to subluxation of the glenohumeral joint, due originally to the tearing of the supporting ligaments anteriorly. While these ligaments have healed, they have not restored stability to the glenohumeral joint.”[22]
[22] PCB 34
37 Mr Kudelka then goes on to say that the condition of the plaintiff’s shoulder has remained unchanged. Mr Kudelka expresses the view that a possible improvement may be obtained by arthroscopic surgery and repair of the shoulder ligaments. However, he acknowledges Mr Pullen’s view that surgery is not advisable. Mr Kudelka accepts that the plaintiff can maintain full-time employment as a service mechanic. He notes that the plaintiff is frustrated because he cannot continue a career in motor sports as he would previously have desired.[23]
[23] PCB 35
38 The plaintiff was also examined by Mr Stephen Doig, orthopaedic surgeon, for the purposes of medico-legal reporting in this application. Mr Doig reported on 28 February 2011. On examination, Mr Doig found as follows:
“There is a marked clunk and crepitus over the superomedial border of the scapula. This is very obvious and he is able to make it come on at will. There is no tenderness over the rotator cuff itself. Examination of the cervical spine reveals that he is tender and sore with some degree of spasm over the left trapezius area.”[24]
[24] PCB 40
39 Mr Doig then diagnosed the condition of the plaintiff as follows:
(i) Left shoulder pain and crepitus of undetermined aetiology. (ii) Secondary left cervical spine pain. 40 Mr Doig then makes the following observations:
“It is not obvious as to what is causing the ongoing pain and crepitus in the left scapula area. It is quite marked and very easily reproducible and I would consider that the most likely diagnosis is in fact that he has significant scapular thoracic impingement. He has been advised not to have surgery for this as the surgical outcome cannot be guaranteed and I think that that is not unreasonable. Unfortunately what that means is that he has continued to have pain radiating up towards the cervical spine. He is restricted in his range of movement of the cervical spine to the left hand side and I consider that this is likely to have gone along with the injury.”[25]
[25] PCB 40
41 In Mr Doig’s opinion the prognosis for the plaintiff is very guarded.[26] Mr Doig was also asked to review his opinion after seeing the report from Mr Hooper, who saw the plaintiff on behalf of the defendant in this application. After noting Mr Hooper’s report, Mr Doig made the following comment:
“However the physical examination is not similar. I found it fairly easy to expose the clunk and the crepitus over the superomedial border of the scapula but Mr Hooper has not found that. I also noted that examining the cervical spine that he had a significant restriction of left sided rotation.”[27]
[26] PCB 41
[27] PCB 44a
42 In short, Mr Doig is staying firm with his diagnosis as set out in his report dated 28 February 2011. I note that in the video surveillance of the plaintiff on 2 May 2011 at approximately 1.10 pm that after observing the plaintiff for some time he then makes a motion of stretching his neck on the left side. This observation in the film is consistent with what Mr Doig found on examination of the plaintiff.
43 The plaintiff was examined by Dr David Fish, a consultant occupational environmental physician, on 13 May 2009. This examination was performed on a medico-legal basis for the defendant. In the history taken from the plaintiff, Dr Fish noted as follows:
“He described headaches being bitemporal headaches, which occur particularly when his shoulder is sore. These can be occasionally associated with nausea and vomiting, occur two or three times per month and last for hours. They are usually relieved by Panadeine Forte. He denies any previous problems with headaches.”
44 Dr Fish then examined the plaintiff and made the following statement:
“On general inspection, the left shoulder was definitely elevated and there appeared to be anterior translocation of the humeral head. There was no wasting, no loss of power around the shoulder, and the range of motion in the shoulder was near normal. I performed tests for instability and found a positive clunk on anterior instability, testing indicative of damage to the anterior capsule of the shoulder.”
45 Dr Fish then sets out his opinion, noting a report from Mr Pullen as follows:
“I noted with interest the report from Mr Pullen in which he describes scapulo-thoracic humeral problems. However, the MRI scan appears to have changed his opinion to suggest that there may be a degree of anterior capsular injury present as well. This would lead to anterior shoulder instability, which I believe is demonstrable on clinical examination. This is entirely consistent with the worker’s symptoms, of an elevated shoulder with pain and recurrent clunking.
In my opinion, he suffers from instability with recurrent and persistent subluxation of the left shoulder, secondary to anterior capsular strain.
There is no evidence of any intrinsic medical condition to the neck and I consider that his symptoms to the neck are referred from the shoulder injury.”
The plaintiff was not sent back to Dr Fish for further examination.
46 The plaintiff was then sent by the defendant to Mr Jonathan Hooper, orthopaedic surgeon, for examination. Mr Hooper reported on 9 March 2011. Mr Hooper took a history from the plaintiff that his medication was Panadeine, Voltaren, and some anti-depressants. In his examination of the plaintiff Mr Hooper was unable to determine the clicking and catching in the shoulder that the other medical examiners referred to previously in these reasons have found. Mr Hooper noted that the plaintiff stood with his left shoulder a little higher than the right.
47 Mr Hooper’s opinion was:
“This man injured his shoulder in an incident at work nearly eight years ago. He still has some degree of shoulder symptoms, but the major problems he is complaining of to me are of headaches, difficulty sleeping and depression.”
48 The diagnosis by Mr Hooper was of an undiagnosed shoulder pain and discomfort together with emotional response to his shoulder problem.[28]
[28] DCB 22-23
49 Mr Hooper found that the plaintiff was able to do most light activities but work involving heavy lifting above his shoulder level would be uncomfortable for him. He concluded that the plaintiff was capable of doing all activities that do not aggravate his shoulder.[29] This is an unhelpful conclusion for the doctor to draw in assisting my determination of this application.
[29] DCB 24
50 The preponderance of the medical opinion, that the clunking and subluxation of the shoulder of the plaintiff does occur and has occurred over a long period of time, indicates that the plaintiff has an instability within his left shoulder. I accept the opinions of Mr Pullen, Dr Lawrence, Mr Kudelka, Mr Doig and Dr Fish over the opinion of Mr Hooper. The main difficult between Mr Hooper and all of the other medical practitioners is that he attributes the predominant problem of the plaintiff to a psychological reaction to the injury and his inability to elicit the clunking of the shoulder on examination. I find on the evidence that there is an organic basis for the “clunking” in the left shoulder and the pain that the plaintiff complains of emanating from the shoulder and up into the left side of his neck.
The Plaintiff’s Credit
51 Mr Montgomery, on behalf of the defendant, cross-examined the plaintiff on the basis that his credit was to be challenged. The first area of attack by Mr Montgomery was to do with the delay in reporting and obtaining medical assistance immediately after the injury. I do not find that this delay is either significant or in any way related to the credit of the plaintiff in this application.
52 The plaintiff was also attacked on the basis that he had failed to properly and fully outline his subsequent injury in Queensland. The plaintiff did in his affidavit set out the fracture to his left arm and the fact that he still has plates and pins in his left arm.[30] The medical practitioners that have examined the plaintiff in this case discount any impact of the 2005 injury to the current situation with the plaintiff’s left shoulder. I do not find that this area of the plaintiff’s evidence creates any difficulty for his credit.
[30] PCB 2, paragraph 5
53 The most significant attack on the plaintiff’s credit was relating to the incident reported by Dr Lawrence in his notes for 25 January 2007.[31] The note of the doctor reads as follows:
“25/1/07 Four days ago – slipped out of tree, grabbed branch with left
hand – left shoulder sore – certificate.”[31] DCB 144
54 When cross-examined about this incident, the plaintiff gave evidence that there was no injury suffered at the time of January 2007 and that he simply made the story up to the doctor so he could get a day off to have for his birthday party. When pressed about this, the evidence was as follows:
Q: “So you are telling the court there was an incident where you aggravated your shoulder, left shoulder doing that, you fell – had a fall from this tree?--- A: No, I did not. Q: There was no fall at all?--- A: No. Q: So that is completely made up is it, for the GP, to get a day off for
your birthday?---A: That’s correct.”[32] [32] T 56-57
55 On the one hand the plaintiff is prepared to tell a lie to his doctor to obtain a certificate so he can have a day off for his birthday, and on the other hand he could continue the lie in the witness box and have to face questions about what was the extent of that shoulder injury. Alternatively, he gave evidence that it was a situation where it – that is, the accident of falling out of the tree – did not occur. I conclude that this incident in January 2007 was a made-up story by the plaintiff so that he could obtain a certificate to get a day off work, and I accept his evidence about that. It is fair to say it does not show him in a good light on the issue of credibility generally, as it indicates he is prepared to lie in order to obtain something for his benefit.
56 Overall, I accept the plaintiff as a witness of truth. He has corroboration from independent medical examiners as to the condition of his left shoulder, and what they find on examination is something that the plaintiff could not manufacture.
Consequences
57 I have read the affidavits of the plaintiff sworn on 26 February 2010 and 30 March 2011. I have also read the redacted affidavits of Daniel Murray Young sworn 12 September 2011 and Gary Hartley sworn 13 September 2011.
58 I have carefully considered the evidence of the plaintiff and also his evidence under cross-examination by Mr Montgomery. I accept the plaintiff’s evidence about the consequences of the injury for him. I find that the consequences which I am satisfied the plaintiff has suffered as a result of the injury to his left shoulder are as follows:
•
The plaintiff suffers pain and discomfort in his left shoulder and into the left neck region. The medical examiners have found that the left shoulder region and neck is painful, and sometimes exhibits spasm in that area. The pain is treated by the use of painkiller medication, and the plaintiff attends a myotherapist, administers self-massage, and has spas in order to maintain his pain levels at a tolerable state. I accept that the plaintiff suffers from the pain, and to such an extent and consistency that it is a very considerable matter for him.
•
The plaintiff takes medication of Voltaren and Panadeine Forte or Panadeine to manage his pain levels. It is clear from the medical opinions referred to earlier in this judgment that the plaintiff will continue to take this medication to alleviate his problems of pain over the rest of his life. The taking of medication in a continuous manner over an extended period of time, in this case basically for the rest of his life, is a very considerable consequence for the plaintiff.
•
The plaintiff also suffers interruption to his sleep as a result of the left shoulder injury. He was cross-examined about this in the course of evidence:
Q: “After the 2000 injury have you had difficulty with sleeping on
your left shoulder?---A: Yes. Q: Is that continuing to date?--- A: Yes, and getting worse.”[33] [33] T 121, L28-30
The loss of ability for the plaintiff to have consistent and proper rest in the form of sleep, and uninterrupted sleep, is a very significant consequence for him, particularly as he is a young man and this will continue for the rest of his life.
•
The plaintiff gave evidence that his relationship with a young woman in 2010 has come to an end as a result of his pain condition arising from the left shoulder. He also says that he has reduced social contact because of his injury and pain. Whilst it was not entirely clear from his evidence exactly why the relationship of 2010 broke down, it is fair to say that the plaintiff is fairly consumed with his pain difficulties, as noted by Mr Hooper. I have no doubt that such introspection and concern about his pain and physical condition would result in less social contact, and that is a very considerable consequence for him.
•
It is clear on the evidence that the plaintiff will not be able to work in the area of motor sport. He at the end of his course was able to obtain work in the area of motor sport originally. His evidence is that as a result of his 2005 injuries he could not continue in the motor sport job at Meridian. However, those injuries have resolved, and the ongoing injury of his left shoulder is now the main reason he cannot work in the motor sport injury. All of the medical examiners agree that he could not work in that industry as a result of his left shoulder injury. The consequence for the plaintiff is that he now has lost the ability to pursue his passion of being involved in motor sport from a very early age in life. His friends and he have in their affidavits expressed great interest in the pursuit of motor-sport mechanics’ work, and I find that the loss of this opportunity for him is a very significant consequence.
•
The effect of the actual physical clunking of his left shoulder and the uncertainty that engenders in his mind about his physical ability with his left arm is also a significant consequence for him. Whilst he continues to work in a full-time capacity and has done so for a number of years, the uncertainty and lack of confidence in his left shoulder in the circumstances of physical work is undoubtedly a very significant consequence for him.
59 In conclusion, the consequences to the plaintiff of the left shoulder injury and its associated pain and referred pain into his neck, I find that the consequences when judged by a comparison with other cases in the range of possible impairments can be fairly described as being more than “significant” or “marked” and as being at least “very considerable”.
Loss of Earnings Capacity
60 The plaintiff has pursued an application for loss of earning capacity arising out of the injury to his left shoulder at his place of employment.
61 After initial treatment, the plaintiff returned to work at Gordon Technologies until the end of the year 2003. He then elected to pursue studies of the years 2004 and 2005 in Wodonga in order to advance his career in motor sport. The study time was post-injury. He was able to obtain employment at Meridian Motorsport immediately upon graduating from Wodonga TAFE. His work history was then interrupted by the accident in Queensland in 2005.
62 From approximately mid-2006 until the latter part of 2009, he worked at Regan Motors as a motor mechanic. The reason he changed his employment from Regan Motors to Booran Motors in Dandenong was that the latter place of employment was closer to his home. He then worked at Booran Motors up until the end of 2010.
63 The circumstances of the plaintiff ceasing his employment at Booran Motors was the subject of some cross-examination, but I do not place any significance on the circumstances of the termination of his employment at Booran Motors in respect of this application. The real point is that in 2010 the plaintiff was able to work full-time at Booran Motors, and at the same time do additional work on the weekends of 6–8 hours on his evidence to develop and commence the start-up of his own business, which is EasternEuro.com.au.[34]
[34] T 62, L11-14
64 In the year 2011, the plaintiff has conducted the business EasternEuro.com.au on a full-time basis. He gave evidence that he worked in that business at his own pace due to the injuries he received. The documentation from his earnings of that business was “sketchy” at best. His evidence was that his business was run at a loss. If the plaintiff wanted to place any significance on the viability of his business, then I would have expected far more documentary evidence to be produced as to the state of the business, and I am unable to make any finding in respect of its financial viability.
65 The test that I have to be satisfied about is what is the plaintiff’s capability to earn income now. I base the capability of the plaintiff to earn income on the evidence of the plaintiff himself saying that he was able to, in the year 2010, work full-time at Booran Motors plus spend 6–8 hours each weekend working on and commencing his own business. The income he earned from Booran Motors was set out in Exhibit A in the PAYG summary. Taking the most favourable position to the plaintiff’s circumstances, it would indicate over a whole year that he would have a capacity to earn a gross income in the order of $48–50,000 per year.
66 I am required to determine what is a “without injury” figure for gross income for the plaintiff. The best the plaintiff could put forward on this issue was the proposition that if he was a motor sports mechanic then his income would be in the range of $60-70,000 gross per year.[35] Even if I accept that the plaintiff would have been in the highest-paid bracket of motor sport mechanics, he still has not suffered a loss of 40% income when compared with his current ability to earn income.
[35] DCB 120
67 In conclusion, I find that the plaintiff has been unable to satisfy me that he has suffered a 40 per cent diminution of his ability to earn gross income as a result of the injury to his left shoulder. The application for a serious injury certificate in relation to loss of earnings capacity is refused.
Conclusion
68 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring to bring proceedings at common law pursuant to s.134AB(16)(b) of the Act to recover damages for pain and suffering for bodily injuries which have arisen out of the accident on 19 March 2003 in the course of his employment with the defendant.
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