Mete v Kiraly
[2011] VCC 1441
•14 December 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-06249
| DAVID ALBERT METE | Plaintiff |
| v | |
| DANIEL KIRALY | First Defendant |
| (Trustee for the Kiraly Family Trust, trading as ‘Rendertech’) | |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE SMITH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 and 7 December 2011 |
| DATE OF JUDGMENT: | 14 December 2011 |
| CASE MAY BE CITED AS: | Mete v Kiraly & Anor |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1441 |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION – Damages
CATCHWORDS – Serious injury – whether the consequences of the worker’s injuries
satisfy the “more than considerable” test
LEGISLATION CITED – Accident Compensation Act 1985, s.134AB
CASES CITED – Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33
JUDGMENT – Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Pierorazio | Slater & Gordon |
| For the Defendants | Ms K A Galpin | Wisewould Mahony Lawyers |
| HIS HONOUR: |
1 David Mete suffered an injury to his right shoulder on 16 February 2005, when he fell from a ladder in the course of his employment with the first defendant (“the accident”).
2 He seeks the leave of the Court to issue a proceeding to recover pain and suffering damages in respect of that injury.
3 His right to do so is governed by the provisions of s.134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied on the balance of probabilities that the injury suffered by him is a “serious injury”.[1]
[1] Section 134AB(19)(a)
4 The term “serious injury” is defined in s.134AB(37), insofar as is relevant, as a “permanent serious impairment or loss of body function”.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2] Barwon Spinners v Podolak Pty Ltd [2005] VSCA 33 at paragraphs [18] to [19]
6 The term “serious” is to be satisfied by reference to the consequences to Mr Mete of any impairment or loss of function of his shoulder with respect to pain and suffering when judged by comparison with other cases in the range of possible impairments or losses of a body function.[3]
[3] Section 134AB(38)(b)
7 The impairment or loss of a body function shall not be held to be serious for the purposes of this application, unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being “more than significant” or “marked”, and as being “at least very considerable”.[4]
[4] Section 134AB(38)(c)
8 The issue to be determined in this application is whether the consequences of the injury suffered by Mr Mete can fairly be described as being more than significant or marked, and as being at least very considerable. Mr Mete submits that, on the evidence before me, those consequences are at least very considerable. The defendants admit that he has suffered injury to his right shoulder in the accident, but deny that the consequences for him of that injury are significant or marked, let alone very considerable.
Background
9 Mr Mete was born on 22 November 1973. He is currently aged thirty-eight. He is married and separated. His two daughters live with his wife. He sees them regularly.
10 He attended school to Year 10 at Dandenong High School and completed Years 11 and 12 at trade school. Since school, he has worked in a variety of occupations including retail sales, factory work, as a steel fixer, driving forklifts and as a plaster renderer.
11 In about 1999, he suffered an injury to his low back whilst working as a steel fixer and was advised at that time to seek lighter work. He appears to have made a full recovery from that low back injury.
12 In about 2001, he trained as a plaster renderer and has worked in that capacity ever since. A plaster renderer applies plaster to a brick surface by means of a trowel.
13 From about October 2003, he was employed by the first defendant.
14 Prior to the accident, he had not suffered from any injury or symptoms in relation to his right shoulder. His evidence was, and I accept, that he was a fit, healthy and active person. He played regular social squash, hit golf balls on a golf driving range and participated in activities including go-kart racing and ten-pin bowling. He attended a gymnasium up to five times a week. He was able to bench press up to about 140 kilograms. He went shooting on occasions at his cousin’s farm, using a shotgun or rifle. He shot pigs, rabbits, kangaroos and foxes.
Post Accident
15 Following the accident, he was seen in the Emergency Department at Dandenong Hospital where he was x-rayed and diagnosed with a dislocated acromioclavicular joint (“AC joint”). He was given analgesia and sent home with his arm in a sling. He attended his general practitioner, Dr Spanos, about two weeks later.
16 In March 2005, Dr Spanos referred him to an orthopaedic surgeon, Mr Matthew Evans. By this time, Mr Mete had returned to work on light duties, attempting not to use his right arm at work. At that time, he was also receiving physiotherapy.
17 He had ongoing pain in the shoulder. Mr Evans told Mr Mete at that time that he was at risk of developing degenerative/post-traumatic osteoarthritis in the right AC joint in the future.
18 In August 2005, Mr Mete saw Mr Evans again with complaints of pain, especially at night, which affected his sleep.
19 Mr Evans formed the view that Mr Mete was developing post-traumatic arthritic symptoms and recommended treatment by way of cortisone injections and local anaesthetic in the AC joint. He received a number of such injections, which he described as extremely painful.
20 An MRI scan taken in August 2005 demonstrated intact coracoclavicular ligaments but with swelling and damage to the AC joint in the form of subchondral bone bruising, and calcification within the coracoclavicular ligaments. There was some fluid around the long head of the biceps tendon sheath. He underwent a further cortisone injection at that time, but pain in the AC joint soon returned.
21 In February 2006, Mr Evans admitted Mr Mete into the Glenferrie Private Hospital, where he underwent an open excisional arthroplasty of the right AC joint. At operation, there were findings of a grossly degenerate AC joint which was excised, along with 8 millimetres of the distal clavicle. Mr Evans describes Mr Mete as making an uncomplicated recovery. He received post operative physiotherapy as part of a rehabilitation program. Seven weeks after that surgery, Mr Evans thought he was making good progress but noted that he was still experiencing tenderness in the AC joint and pain when using the arm overhead or for heavy activity. At that stage, he was having physiotherapy and hydrotherapy and was advised to continue with that treatment.
22 Mr Evans saw Mr Mete again in late April 2006, at which time he considered that he was progressing well with almost a full range of motion and improving strength. Mr Evans thought that he still had some weakness and a gymnasium-based strengthening program was advised.
23 Mr Mete has not seen Mr Evans since 26 April 2006, about five-and-a-half years ago.
24 He had time off work after the surgery, but then returned to work.
25 In December 2006, he again fell at work, hurting his back, although this improved over a period of a couple of weeks. He does not appear to have aggravated his shoulder injury in that second fall. Soon after, Mr Mete resigned from the first defendant and obtained work as a tram driver for five to six months. He was paid about half the amount that he had previously been earning as a plaster renderer and, after five or six months of driving trams, he decided to return to plaster rendering with a new employer, Designer Mouldings. Mr Mete stated that by this time, he thought he had lost 60 to 70 per cent of strength of his right arm. He was slow at work. He had difficulty working overhead and resigned in order to set up his own plaster rendering business, “Superfinish Rendering”. By mid-2009, he considered he was not making much money through his own business and returned to work for Designer Mouldings.
26 He states that he has had to modify the way that he performs rendering work. By way of example, he said that he now pushes the trowel down the wall instead of up the wall, as he previously did. This is less efficient, because more of the plaster ends up on the ground below than would be the case if he was using the trowel in an upward motion.
27 In addition, Mr Mete states that, in order to avoid pain, he performs his rendering work at or around head or chest level, avoiding working with the trowel above his shoulders. In turn, this means that he frequently has to adjust the level at which he is working by means of using a ladder or by moving a plank laid between two ladders. This causes him to be slower than other renderers, also affecting the performance of the team as a whole. Accordingly, he said he now prefers to work alone.
28 About one to one-and-a-half years ago, Mr Mete ceased employment with Designer Mouldings and commenced employment with O’Render Solid Plaster Service. He describes his work there as essentially repair work – smaller jobs which are less taxing on his right shoulder – but he considers that the work is far less satisfying than his previous rendering duties.
29 In his oral evidence, he initially said that he had continued to see Dr Spanos after his surgery and that Dr Spanos had continued to prescribe him medication. However, in cross-examination, it was put to him that Dr Spanos’ report and clinical notes from his surgery indicated that he had not attended upon him in relation to his right shoulder since February 2006 at about the time when the surgery was performed. Between February 2006 and October 2009, Dr Spanos’ clinical notes indicate that Mr Mete attended at his medical practice on some fifteen occasions, but made no complaint concerning his right shoulder on any of those occasions. The clinical notes end on 13 October 2009. It is not clear as to whether Mr Mete has seen Dr Spanos since that time, but there is no suggestion in his evidence that he saw him in more recent times in relation to his shoulder. On the balance of probabilities, I find that he has not consulted any general practitioner concerning his right shoulder.
30 Mr Mete has not seen his specialist, Mr Evans, since April 2006.
31 Mr Mete has attended upon a masseur, Mariana Vera, over the last couple of years, who has treated him for maintenance of his back and both shoulders. In her report,[5] she states that her treatments were to make sure that muscles and tendons were loosened.
[5] PCB 59
32 Mr Mete has not received prescription medication since relatively soon after the surgical procedure more than five years ago. He says that he has purchased over-the-counter anti-inflammatory and analgesic medication.
The Medical Evidence
33 The medical evidence was relatively non-contentious. It is clear that as a consequence of the accident, Mr Mete suffered a subluxation or dislocation of his right AC joint, with subsequent post-traumatic degenerative arthritis. At surgery, Mr Evans found the AC joint was grossly degenerate and all cartilage was removed. Eight millimetres of distal clavicle (collarbone) was excised and the end of the bone smoothed off.
34 By April 2006, Mr Evans was of the view that Mr Mete had recovered an almost full range of motion and that his strength was still improving. Mr Evans thought, at that time, that he had some weakness and considered a gymnasium-based strengthening program was appropriate. Mr Evans opined that he considered the prognosis was good. Mr Mete has not returned to see Mr Evans in the last five-and-a-half years. At that time, Mr Evans considered his prognosis to be good.[6]
[6] PCB 55
35 Mr Cocking, physiotherapist, treated Mr Mete between the time of the surgical procedure in February 2006 and September 2007. He has not seen him since (more than four years ago). At that time, he considered that Mr Mete had a partial incapacity for pre-injury work and predicted that “the injury will cause some small dysfunction in his normal, social, domestic and recreational activities …”.[7] He considered that the restriction would be permanent.
[7] PCB 58
36 Mr Brearley, orthopaedic surgeon, saw Mr Mete at the request of his solicitors in August 2011. He considered that he was restricted in relation to employment. He had taken a history from Mr Mete that he does most of the plastering now with the left arm and that this has resulted in loss of efficiency and limitation in the type of plastering that he can do. This history is not consistent with Mr Mete’s evidence that he continued to use the rendering trowel in his right hand.[8] Mr Brearley also noted that Mr Mete was no longer able to play any sports, such as swimming, squash and shooting. He considered he was unable to do any gardening. I shall return to these matters later in these reasons.
[8] T 62
37 The defendants had arranged for Mr Mete to be examined by Mr Michael Shannon, Mr Ian Jones and Mr Clive Jones.
38 In early December 2011, Mr Clive Jones considered that Mr Mete had virtually a full range of movement of his right shoulder, but that abduction strength was a little reduced.[9] He considered that he would have difficulty with sustained use of the right arm above shoulder level and that this would be permanent. Within his limitations, Mr Jones thought he was able to work full-time. Mr Jones had taken a history that prior to the operation, the right shoulder was painful more or less continually, but that the pain had eventually eased very significantly.[10] The residual symptoms complained of included some loss of strength in the right shoulder and inability to bench press or lift heavy weights.
[9] DCB 29
[10] DCB 29
39 Likewise, Mr Ian Jones, in November 2010, considered that Mr Mete did have the capacity for physical employment but excluding the use of the right arm for extremely heavy pushing.[11]
[11] DCB 27
40 The report of Mr Shannon in September 2009 was consistent with these views.[12]
[12] DCB 19
Consequences of the Injury
41 It was submitted on behalf of Mr Mete that the consequences of his injury did satisfy the “at least very considerable” test laid down in s.134AB(38)(c) of the Act. It was put that he was only thirty-eight years old, that he had undergone significant surgery following a traumatic accident, and that his occupational, recreational and sporting activities had been significantly impaired.
42 Mr Mete had worked as a plaster renderer for about four years before the accident. I accept that he enjoyed the work. He preferred to work outdoors. The work often involved him working from ladders or trestles. Mr Mete has been able to continue working as a plaster renderer up to the present time. However, he says that he is slower than he used to be for a number of reasons. He gave evidence that he had no difficulty using the trowel in front of his face and at chest level. He said he had difficulty using his right arm above head or shoulder level and could only do so for short periods of time.[13] If he used his right hand above head level for more than a total of half-an-hour in the course of a whole day, he said he would need medication that night. For that reason, he would have to change the level at which he worked from more regularly than would otherwise be the case. Whereas other renderers would be able to stretch up from where they stood, he would have to move his trestle upwards or downwards more regularly. This meant that he was slower. Also, it made it difficult if he was working alongside another person on the same trestle or scaffold. It was for that reason, he said, that he now worked performing smaller jobs consisting of repair work or patch work and generally alone.
[13] T 32
43 He said that he still experienced pain on a daily basis.[14]
[14] PCB 19
44 He has difficulty swimming. Notwithstanding that he has virtually a full range of movement of his shoulder, he says that it clicks whilst performing freestyle and that he would not be able to perform backstroke.
45 Before his accident, he was a keen squash player, describing himself as an aggressive and competitive player. He is presently able to play squash, but has had to modify his game so that he is less aggressive and not as competitive. For example, whereas before the accident he would serve with an overarm motion, he now serves with a lob or underarm style.
46 Prior to the accident, he said he regularly worked out at a gymnasium with weights. He was able to bench press about 140 kilograms. He states that he would now not be able to bench press 30 kilograms. He states that it is the act of pushing the arm away from his body which causes pain. He maintains that he no longer participates in go-kart racing, ten-pin bowling, kickboxing, and hitting golf balls at a driving range. He did not suggest that he ever played a round of golf at a golf course.
47 Prior to the accident, he was a keen shooter, hunting rabbits, foxes and kangaroos. He says he would now have difficulty using the rifle because of the recoil or jolt involved. He still is able to use an air rifle, but there is not much that he can do with it other than shoot at tin cans. Prior to the accident, he said that he had regular shooting weekends away with his cousin and others. He still went with them on such occasions, but he did not use a shotgun or rifle. He said he could no longer assist his grandfather making wine, turn the handle on his parents’ salami machine or polish his car.
48 At social events, such as picnics or barbeques, he said that he has difficulty helping set up for these events. For instance, lifting a spit out from the back of a trailer or helping put meat on the spit causes his problems now.
49 I accept that these restrictions are not inconsistent with the views expressed in medical reports of doctors referred to above and would constitute significant impairment.
50 However, in the course of cross-examination, Counsel for the defendants showed DVD film of Mr Mete taken on Saturday, 8 October 2011 in the garden of his parents’ home where he now lives. Parts of that film were run through with the consent of both parties at a fast forward speed. Significant parts were shown at normal speed. I have taken the opportunity to watch the entire film at normal speed. The film lasted for approximately one hour and 45 minutes. It covered the period commencing at approximately 11.00 am and ending at approximately 2.45 pm. Although, plainly, the DVD film does not cover all of that whole period of about three-and-three-quarter hours, Mr Mete agreed that he had performed the sort of tasks depicted in the film throughout the day. He was unable to recall as to whether or not he had had a lunch break on that day.
51 The film showed Mr Mete performing a number of physical tasks in and about the garden of the property. For much of the time, he used a shovel, and for some of the time, garden shears.
52 In my opinion, the film showed Mr Mete as a relatively fit and well-built man. He performed what I would describe as relatively hard manual labour throughout the film.
53 He showed no sign of any restriction of movement of his right arm or shoulder. He used his right arm and shoulder vigorously on numerous occasions throughout the film. When the task he was performing required him to raise his right arm well above head or shoulder level, he was able to do so, and do so repeatedly.
54 He pruned bushes vigorously with garden shears. He was able to lift branches above head level with his right hand alone without hesitation or apparent difficulty.
55 He vigorously and repetitively used a shovel with both hands to clear undergrowth. He did so aggressively, applying considerable force repeatedly with his right arm and shoulder.
56 I describe the activities depicted in the film as being relatively hard manual labour, far in excess of the physical effort required in normal gardening duties.
57 At one point in the film, Mr Mete raised the shovel high above his head, using only his right hand and arm, and repeatedly speared the shovel down into the ground using what I consider to be considerable force. He showed no sign of discomfort or restriction of movement.
58 Mr Mete freely admitted that he was able to do the tasks depicted in the film and maintained that those tasks were nothing compared with what he did in his current work.[15] He maintained that the film did not depict any strenuous activity. He said that if he worked like that all day, he would not have problems.[16]
[15] T 53
[16] T 59
59 In personal injury cases where film is shown to a plaintiff depicting strenuous activity for a short period, it is often explained away by the plaintiff saying that the activity was performed on rare “good days” or that, as a consequence of performing the activity, the plaintiff had great pain over the hours or days that followed. Thus, it is often argued that the film does not depict what the plaintiff is truly capable of doing on a regular basis.
60 In this case, the evidence is to the opposite effect. Here, Mr Mete says candidly that he can do the type of work depicted in the film without any problems for his shoulder. Further, he says that in his current job, he works in a far more strenuous manner than that depicted in the film.
61 Further, his evidence was that he had worked both the week before the Saturday upon which the film was taken and the week after. He worked a five or six-day week in his job, and worked seven to eight hours per day.
62 He agreed that he would be able to work as a landscape gardener.[17]
[17] T 71
63 Having carefully watched the film again, I have no doubt that Mr Mete is fit to carry out a wide range of manual labouring jobs.
64 There were aspects of Mr Mete’s evidence that caused me concern.
65 In his recent affidavit, Mr Mete states that he has not been able to return to the gymnasium.[18] Having observed the vigorous and strenuous activities performed by him on the film, I have no doubt that Mr Mete is fit to resume a wide range of gymnasium activities. There may be one or two particular weights exercises that he may have some difficulty performing.
[18] PCB 21
66 Mr Mete states that, around the home, he continues to be restricted in terms of activities he can perform for his parents.[19] He maintains that he has difficulty emptying the catcher on the lawn mower and difficulty helping his mother with the washing. Having viewed his physical capabilities depicted on the film, I simply do not accept that evidence.
[19] PCB 22
67 Mr Mete swore last month that he had difficulty polishing his car.[20] Again, having seen the activities performed by him in the film, I do not accept that evidence.
[20] PCB 22
68 His evidence concerning his assisting his grandfather in winemaking activities was, I consider, considerably exaggerated. His evidence was that he had enjoyed assisting his grandfather make wine before his accident and that it had been a bonding session for the two of them. He said that he missed that activity now.[21] It was only when I asked him about the current extent of his involvement in his grandfather’s winemaking activities that he disclosed that he had partaken in those activities in each of the years from 2007 to 2011 and that the only aspect of the winemaking process that he had difficulty with was the operation of the wine press. Even then, he said that probably over the next couple of years, maybe he could try and use his left hand to operate the press.[22] The clear impression that he had given in his affidavit material and earlier oral evidence was that he was not able to partake in the winemaking at all. This was plainly not the case.
[21] T 74
[22] T 75
69 Mr Mete’s evidence was that he could not swim freestyle without pain. Having seen him in the film using the shovel vigorously and repetitively above his head, I do not accept that evidence.
70 Mr Mete maintains that he is unable to play overhead squash shots. Again, having seen the use he made of his right arm vigorously and repetitively in the film when used above shoulder level, I do not accept that he could not play the full gambit of squash shots.
71 Mr Mete says he is unable to return to go-kart racing activities. Having seen the activities performed by him in the film, I do not accept that evidence.
72 I accept that his activities shooting with a shotgun or rifle may be painful by reason of the recoil experienced when such a gun is fired. I accept that his shooting activities are probably limited to the use of an air rifle.
73 I accept the medical evidence that he may have a degree of weakness in his right arm when used above shoulder level but again, having seen the film, I find that this impairment is minimal.
74 I note that no medical practitioner who has examined Mr Mete has reported any degree of wasting of the right shoulder musculature. Having seen the activities performed by him on the film, this does not surprise me.
75 Mr Mete maintains that he has had to modify his plaster rendering style so that he uses the trowel in a downward motion rather than in an upward motion. He says this is more wasteful. Further, he maintains that he is unable to work with his right hand above shoulder level and, hence, has to alter his trestle position more often than would otherwise be the case. Having seen the activities performed by him on the film, I am not satisfied that Mr Mete has established, on balance of probabilities, that his ability to work as a plaster renderer is significantly affected. I note there is no other evidence from any person with whom he has worked in the six years since the accident in support of this allegation.
76 I note that he has not consulted either his general practitioner or any specialist in relation to his shoulder for approximately five years. He has taken no prescribed medication for nearly six years.
77 Taking all of the evidence into account, I am not satisfied that Mr Mete has established that the consequences of his right shoulder injury could fairly be described as more than significant or marked, or at least very considerable.
Conclusion
78 For the reasons expressed above, I am not satisfied that Mr Mete has suffered a serious injury in the sense that that term is defined in the Act. I accept that the accident in which he was involved when he fell from the ladder was traumatic and that his initial shoulder pain, at least up until the time of the surgery performed in 2006 and the rehabilitation that followed, would have been significant. However, I am required to assess the consequences of that injury at the present time and not at some prior date.
79 Accordingly, the application will be dismissed.
80 I shall hear the parties as to costs.
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