Mills v Nagorcka Pty Ltd (t/a Horsham Hydraulics) and VWA

[2011] VCC 1452

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT BALLARAT
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-11-00608

ANDREW GEORGE MILLS	Plaintiff
v
NAGORCKA PTY LTD	First Defendant
(trading as HORSHAM HYDRAULICS)
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Ballarat
DATE OF HEARING:	16 November 2011
DATE OF JUDGMENT:	14 December 2011
CASE MAY BE CITED AS:	Mills v Nagorcka Pty Ltd (t/a Horsham Hydraulics) & VWA
MEDIUM NEUTRAL CITATION:	[2011] VCC 1452

REASONS FOR JUDGMENT

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SUBJECT – ACCIDENT COMPENSATION – damages
CATCHWORDS – Serious injury
LEGILSATION CITED – Accident Compensation Act 1985, s.134AB
CASES CITED – Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Sutton v
Laminex Group Pty Ltd [2011] VSCA 52; Stijepic v One Force Group Aust Pty Ltd & Anor
[2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260

JUDGMENT – Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Moore QC with	Saines & Partners Pty Ltd
Mr K Mueller
For the Defendants	Mr P Elliott QC with	Herbert Geer
Mr I Gourlay
HIS HONOUR:

1          In this proceeding, the plaintiff seeks leave to commence an action seeking damages by reason of an injury to his left shoulder which occurred in the course of his employment with the defendant on 18 September 2007. In the application, the impairment of function relied upon by the plaintiff is that of the left shoulder and arm.

2          In support of the application, the plaintiff relies upon two affidavits sworn by him on 10 October 2010 and 19 September 2011 respectively. Otherwise the parties rely upon medical reports and other material which have been tendered by them.

The Plaintiff’s Affidavit Evidence

3          In his first affidavit of 18 October 2010, the plaintiff said:

•  That having completed school at Year 11 level, he qualified as a fitter and turner in the early 1990s. He said that between 1988 and 1994, he engaged in a variety of occupations before commencing employment with the first defendant in October 2005;

•  That having sustained an injury in the form of a dislocation of his left shoulder in the course of his employment on 18 September 2007, he underwent surgery to stabilise the shoulder in February 2008;

•  Having recovered from his surgery, the plaintiff returned to employment with the first defendant, undertaking light duties, initially on a part-time basis and thereafter on a full-time basis. He said that he was eventually returned to normal duties on a full-time basis and that he continued to undertake those duties until, following an argument which he had with his employer whilst the plaintiff was affected by alcohol, he was sacked;

•  That in January 2009, he obtained employment with Warrnambool Hydraulics, where he undertook bench work which was lighter than that which he normally performed at Horsham Hydraulics. He said that in this employment he was paid at a rate of $25 an hour, some $8 per hour in excess of the rate which he was earning in employment with the first defendant;

•  That he continued to suffer from pain in his left shoulder which was exacerbated by activity such as lifting his arm above shoulder height (the plaintiff commented upon the fact that he was 5 feet 4 inches tall); the forceful use of his left upper limb when pushing, pulling or reaching movements were performed; and heavy lifting. He said:

(i)        that his left limb was sensitive to vibration, that he had lost

strength in his left arm and that he tended to favour his dominant

left hand by making more use of his right hand;

(ii)        that his injury affected his sleep, in that left shoulder pain could

wake him and keep him awake;

(iii)       that before his injury he enjoyed activities such as archery, riding

a Honda XR 650 dirt bike in the bush, working out on his home

gym, surf fishing, working on his cars, and working around the

house, including using a chainsaw to cut firewood.

(iv)       that he had lost the full use of his dominant upper limb and that he considered his injury precluded him from performing many of the jobs which he undertook at Horsham Hydraulics;

(v)       that he now found it difficult to pull on an archery bow with his left

arm, that last year he had ridden a friend’s motorbike for

approximately ten minutes, which activity aggravated his

shoulder pain and had caused him to take “a couple of days off

work” and that activities such as hanging washing on the line,

aggravated his symptoms;

(vi)       that his injury affected his ability to work upon his cars;

(vii)      that whilst he had been a keen swimmer, he now had difficulty

with this activity and that simple activities such as manoeuvring a

toothbrush, combing his hair and wiping his bottom were problems

for him.

4          In a supplementary affidavit dated 19 September 2011, the plaintiff described the presence of days when he was pain-free followed by periods of varying, but often severe pain. He described his symptoms as being worse in cold weather and the need to employ a shoulder brace to keep his shoulder warm. He said:

• that he had ceased his employment with Warrnambool Hydraulics following a disagreement with his employer;

• that the restriction in the work which he was now fit to perform put him at a disadvantage when seeking employment;

• that as a fitter and turner employed with the Victorian Railways he had undertaken work on large locomotives and machines and his work required the use of both his hands and the application of considerable force;

• that within the hydraulics industry much of the work was heavy and that it often involved getting into awkward positions on, and within, large machines;

• that he was precluded from all forms of heavy work and was accordingly precluded from seeking work in the mining industry in Western Australia;

• that he was now unable to mow the lawn because of the vibration involved, that whilst prior to his injury he had undertaken some relief milking on dairy farms, he was no longer able to do that sort of work;

• that any activity which involved the need to lift his arm or to apply force to the shoulder was now more difficult and painful for him and that he was no longer able to use a chainsaw or to ride a trail bike.

5          The plaintiff concluded his affidavit, stating:

“I have always relied on my capacity to engage in hard physical work for my employment. Most of my leisure activities were very physical. The work injury has badly impacted on all aspects of my life, including my capacity to work.”

The Viva Voce Evidence of the Plaintiff

6          In evidence-in-chief, the plaintiff described the pain in his shoulder as being intermittent. He said he had both good days and bad days, which he described as follows:

“If I have a bad day it will hurt like hell. It’ll leave me alone for a little while, it will hurt like hell. It’ll leave me alone. On good days, if I was to – say, move in a hurry to grab something with my left hand, it would start to hurt and then back off a little bit.”

7          He described his pain as being there sometimes and not there sometimes and said that when his shoulder was hurting the pain varied in degree.[1] The plaintiff described activities involving vibration, the application of force, or working overhead as being activities which aggravated his condition.

[1]             T 12

8          It is not in issue in this proceeding that the plaintiff lost his employment with the first defendant by reason of an altercation which occurred between himself and his employer which had nothing to do with the injury to the plaintiff’s left arm or the incapacity associated with that injury. Neither is it in issue that within a month or so of losing his position with the defendant, the plaintiff found employment with Warrnambool Hydraulics which, although it involved only light bench work of the type he was carrying out with the first defendant prior to his retrenchment, he was paid at the rate of $25 per hour, being substantially more than the $17 per hour he earned whilst in employment with the first defendant.

9          In cross-examination, the plaintiff said:

•  that he had regularly employed marijuana as a method of pain control because he did not “like pills at all”,[2] and that in August of 2001, he had provided Dr du Toit with a history that he had ceased using Panadeine Forte and was smoking marijuana daily for pain relief. He said that at the present time he was taking Tramadol as the result of an injury which he had suffered to his back and that this medication had been prescribed as:

[2]             T 20

“a slow-release 12-hour thing. I take one every night. It does

make the shoulder a hell of a lot easier to sleep with.”

• that following the surgery which was preformed on his shoulder in February 2008, he returned to work with the first defendant in November 2008 where he undertook bench work which involved duties lighter than those which he had been carrying out prior to his injury. He said that having been retrenched following an altercation which occurred in association with his attendance at a Christmas party organised by the first defendant, he moved from Horsham to Warrnambool where he found a job with Warrnambool Hydraulics in January 2009. He said that whilst working for Warrnambool Hydraulics he undertook maintenance and repairs upon hydraulic pumps and that he continued in that employment until 27 June 2009 when he was sacked because of his refusal to undertake what he described as being “work on call” which he refused to do –

“… because I didn’t know what I was walking into, in the sense of you get minimal information, ‘go change a hose on a tractor’. That trailer thing could be over the roof; you may have to work with your arms extended; it might be underneath. You just get blank of information”.

(sic).

• that since losing his job with Warrnambool Hydraulics, he had been looking for work but had not found steady employment. He said he was precluded from work such as dairy farming and heavy engineering, having regard to the pressure which that sort of employment would place upon his left shoulder. He said that he was fit to perform bench work and work on small motors such as chainsaws and mowers but that he was unfit to work on large equipment or in association with heavy engineering programs such as mining;

• that his employment history involved undertaking an apprenticeship with V Line and working for that organisation for a couple of years; working in general machinery companies doing lathe-type work; working on gears and cogs; working as a truck jockey; undertaking seasonal fruit picking; and working for a wood merchant cutting wood with a chainsaw. He said, as to the reason why he commenced employment with the first defendant:

“I got sick of the itinerary work (sic), it was just nowhere and I think it may have been maybe 2006 I think that I had eighteen Group Certificates and there was two that were missing because they were dodgy employers. My accountant hated it and it was just a case of, well I’ve got to do something, this is just going nowhere and nowhere fast so I thought well, time to get a full-time job. So the Horsham Hydraulics job had been on the computer in the local job centre for a couple of months and I thought, oh well, no one’s taken that job yet, I’ll put in for it, see how we go.”[3]

[3]             T 44

10        The plaintiff said that he had been surprised to get an interview with Horsham Hydraulics, explaining:

“Well, at that time I hadn’t had much to do with hydraulics, only the basics of it and well a lot of touch screen things seemed to stay there for weeks after they’ve been taken off anyway after someone else had a go for it, so I wasn’t holding my breath. You end up a little bit of a pessimist in ways when you’re doing that sort of work going from job to job to job because you just don’t know what’s round the corner. After that job finishes, is there something else to do after that.”[4]

[4]             T 44

11        The plaintiff was cross-examined as to the activities in which he engaged both before and after the accident. He gave evidence

• that he used to regularly shoot at clay targets. He said he was currently a member of a gun club; that he could now shoot left handed “ but only so many shots before it starts to bother me; and that he was presently having his gun modified so as to incorporate an hydraulic action which would make it easier for him to use. The plaintiff said that by reason of a criminal conviction, he had lost his shooting licence; that he intended to reapply for his licence and that if he was successful in obtaining it he would rejoin the gun club. He said that he intended to continue in his hobby of shooting which involved clay target shooting and firing a muzzle-loading early 19th Century gun.[5] The plaintiff said that he owned a double-barrel Winchester Grand European shotgun and that when he regained his licence he would like to go back to clay target shooting;

• that prior to his accident, he had enjoyed motorbike riding, that he had sold his road motorbike in 2005 to raise the money to move to Horsham and that before the accident he would regularly ride his cousin’s motorbike

[5]             The plaintiff described the recoil associated with this activity as being “like a gentle push rather than an actual kick because black powder burns a lot slower- T49.

“That was how I blew off steam, riding motorbikes. I would get on the bike, and I’d go as hard as that thing would go, very – very seldomly I fell off.”

The plaintiff said that in 2009, he had tried riding on a motocross track

but had to very quickly abandon that activity because of the

aggravation to his shoulder;

• that he had previously enjoyed surf fishing which he would engage in “most of the time if I ever got down near the coast”. He said that whilst he could not now perform the movements required to cast an ocean rod, he was able to fish in the Murray River and was teaching himself to cast with his right arm using a small river rod. He said that he was hoping to teach himself to cast with the river rod so that he could “get a decent cast because sometimes you try and get the bait out 80, 100 metres out in the trough where the fish are” (referring to his hope that he may be able to resume surf fishing);

• that he used to regularly go out into the bush with a chainsaw and axe and collect firewood, that the use of the chainsaw was now largely precluded to him and that whilst he could split wood using an axe, he was very uncoordinated when performing that activity;

• that he previously enjoyed archery and whilst he was not a member of an archery club, he enjoyed shooting at targets and also hunting, principally for rabbits, with a bow and arrow. He said he would engage in this activity “roughly at least once a month when I got the chance” but that he had abandoned the activity as the bow which he owned was a compound bow which took “70 pounds to pull that thing”. He said that he had considered purchasing a small 20 pound bow but that was “something a kid would use but they are sort of pointless”;[6]

• that he had had a home gym which was designed “for doing proper weightlifting, it wasn’t made for piss farting about lifting your arm doing little exercises like that. It was actually a serious setup for serious weightlifting. I ended up selling that to a friend of my cousin”;

• that he had a number of vehicles, including a Toyota Landcruiser, that he did not service his cars but that because he was unemployed at the present time he intended in the near future to undertake a repair on his Landcruiser which would involve the removal of the radiator.[7] He said that “the only trouble I have driving a car is sometimes if I am off road in my Landcruiser, that’s the only time driving a car becomes a problem”. He said that he often went off-road when he went fishing but that these days he did not go off-road quite as much.

[6]             T 55

[7]             T 57

12        The plaintiff said that whilst working at Warrnambool Hydraulics he took some time off because his shoulder was giving him trouble. He agreed that he had been prescribed Panadeine Forte tablets in September 2009; that cold weather caused his symptoms to flare-up; that he consulted his general practitioner in May 2011 with shoulder pain and that he had been referred at that time for an ultrasound of the shoulder. The plaintiff said that he was shortly to commence a training course in Warrnambool which would qualify him to operate an excavator. He said that he was confident that he would be able to undertake the activities involved in employment as the driver of an excavator. The plaintiff said that it had previously crossed his mind to seek employment in maintaining locomotives in Western Australia, commenting:

“There’s huge money for fixing locomotives and such over there, but I’m just not capable because of the size of the equipment needed to operate.”

13        In re-examination, the plaintiff said:

• that prior to his injury, he was not having trouble with his shoulder, that he had been able to bench press a weight of “roughly 150 kilos,” and that he derived personal satisfaction from his upper body strength, describing himself as being “very powerful”. He described himself as being confident that he would obtain work, commenting: “I know I’ll get work, it’s just a matter of when and what”;

• that 4-wheel driving in extreme conditions, such as in mud, now caused him problems as sometimes the steering wheel “gets yanked across” and this made his shoulder really hurt. He said that in August this year, he had consulted his general practitioner by reason of the presence of considerable pain in his shoulder which was such that it was hard to move his shoulder and it was keeping him awake at night. He said an injection was trialled to see if it would relieve the pain;

• that he had regular problems with his shoulder in cold weather, that the movement in his shoulder was restricted most of the time in cold weather “yes, more so in cold weather but there is a bit of restriction most of the time, yes. It is easier to move and live with in the heat – the hot weather”. He described the presence of pain in the front of the shoulder which was aggravated particularly if he was exposed to vibrations. He said his shoulder could be painless unless he raised his arm above his head, commenting: “Yes, it’ll hurt then, it can be painless and there’s other days, especially in the cold, where I just, as soon as I get out of bed and try to move … “. He said that raising his arm beside his body above shoulder level caused pain, as did raising his arm in front of his body above shoulder level. He said he has trouble with rotation.

Q:	“What sort of activities have you noticed with this rotation movement, particularly after that that can cause problems?--
A:	Wiping my bum. That’s one of them, probably one of the major ones.”

14        The plaintiff described problems walking his dog, who had a tendency to pull on his lead and said that the work which he intended to undertake upon his Landcruiser was such that he would require assistance which he would not have needed prior to his accident. When asked what sort of activities could cause a problem which could take up to a week to settle, he responded:

“The use of big spanners and such like if I was to start up a chainsaw and say make three cuts of a decent sized piece of wood, yes I’d be out for a week, the vibrations absolutely kill it. Push mower, if I was to try and mow my lawn I reckon I might get 3-5 minutes with that thing and I’d be walking away with a numb shoulder and knowing it was going to hurt when she came back, circulation got back into it so to speak.”

15        He said that since his injury when using a firearm at the gun club he had attempted to learn to shoot right-handed but that was physically impossible for him and exacerbated his pain more than the pain associated with shooting left-handed. He said that he had been employing low recoil shells which he explained:

“They’re made for children and women by Winchester so, yes, they – if I was to shoot off ten, twenty of them, not a problem anymore and I’m starting to really hurt.”

16        He described these loads as being more affected by wind and other weather conditions.

The Medical Evidence

17        In a report dated 2 September 2011, Mr John Patrikios said that the plaintiff presented to him in November 2007 with a history of an anteroinferior dislocation and ongoing symptoms of pain in his left shoulder with tingling into his hand.

18        On 11 February 2008, Dr Patrikios undertook an arthroscopic stabilisation of the left shoulder which, at the time at which he discharged the plaintiff from his care on 1 May 2008, had provided the plaintiff with a stable shoulder.

19        Dr I de Toit, orthopaedic surgeon, in a report dated 5 September 2011, reported that following his surgery, the plaintiff suffered from –

“… intermittent pain in the left shoulder, mostly anterior and in the shoulder joint itself. Some days are worse than others, although he reports to taking daily painkillers.

20        Dr de Toit diagnosed the plaintiff as presenting with –

“… a mixed disease of his left shoulder. He has signs of early arthritis,

supraspinatus injury and AC joint pathology.”

21        Dr de Toit noted that the plaintiff took daily painkillers for shoulder discomfort and opined that shoulder injections into the subacromial space in the AC joint may be of some benefit but otherwise did not feel appropriately qualified to express a further prognosis.

22        Mr S Schofield, an orthopaedic surgeon, in a report dated 27 October 2011, opined that the plaintiff, on examination, presented with significant reduction in movement of the shoulder, a positive impingement test and symptoms suggestive of neuropraxia. He opined:

“His current symptoms prevent him from returning to his pre-injury work, despite the history of injury prior to the work in 1989. His prognosis remains guarded. The investigations advised may help to provide a more accurate diagnosis, the need for surgery and the long-term prognosis. In view of his arthritis which has been noted, he is unlikely to return that joint to normal in the future.”

23        Mr I Jones, an orthopaedic surgeon, has provided a report which is relied upon by the defendants dated 16 January 2008. Insofar as that report predates the plaintiff’s surgery, I do not consider it of any relevance in assessing the consequences of the injury to the plaintiff’s left shoulder at the present time.

24        In a report dated 30 September 2008, Dr Michael Banes, a specialist occupational physician, opined that the plaintiff was at that time not fit for his pre-injury duties but was fit for alternate duties which did not involve lifting greater than 5 kilograms and which did not involve lifting above shoulder height with the left arm. Clearly, at the time at which he provided his report, Dr Baines considered the plaintiff was still recovering from the treatment which he had undergone and that his condition had not fully stabilised.

25        In a report dated 23 June 2009, Dr David Kotzman, an occupational physician, noted that the plaintiff presented with tenderness on palpation of the left shoulder over the left anterior rotator cuff and lateral border of the scapula, that the range of motion of his left shoulder was mildly restricted on flexion, abduction and internal rotation and was moderately restricted on extension and abduction, and commented that the plaintiff was suffering from persisting dysfunction of the left shoulder.

26        In a report dated 19 September 2011, Mr Peter Scott opined:

(i)	that pre-existing degenerative changes in the plaintiff’s shoulder joint and acromioclavicular joint had been aggravated by the injury sustained by him on 18 September 2007 and that this was responsible for the plaintiff’s ongoing pain in the shoulder area;
(ii)	that the plaintiff was fit for light work only which did not involve reaching up or reaching out or lifting more than 10 kilograms in weight or performing any repetitive or forceful work or handling heavy tools and in particular, vibrating tools.

Findings

27        In the course of his viva voce evidence, the plaintiff qualified a number of black and white statements made in his affidavit to the effect that his ability to engage in certain activities such as the sport of shooting and surf fishing had essentially been lost to him. Rather, the evidence establishes that the former activity is now more accurately described as being restricted and the latter as being denied to him at present and for so long as he is unable to train himself to cast with his non-dominant arm. Whilst the change in the plaintiff’s evidence in this regard potentially raises an issue as to the plaintiff’s reliability as a witness, generally the plaintiff impressed me as an extremely honest witness who readily volunteered the fact that he was able to engage in certain activities: (see, for example, his evidence as to his activities in fishing,[8] his plan to service his motor vehicle[9] and his evidence as to his capacity for work[10]), and I accept the viva voce evidence given by him as to the impact of his injury upon him.

[8]             T 52, L3-11

[9]             T 57, L17-25

[10]           T 65, L28 and T 71, L18

28        Further, the plaintiff struck me as being someone of limited intelligence for whom physical strength, both in the work he performed and in his life generally was of considerable importance. This in my opinion is attested to by the broad range of recreational pursuits in which the plaintiff engaged all of which involved strenuous physical activity at varying levels as a fundamental component.

29        It was put that the plaintiff’s work history did not suggest that he took particular pride in his trade. Whilst this may be so, it is in my opinion not insignificant that the plaintiff returned to his trade when he considered that it was time to seek stable employment, and that he had held positions in that trade with the defendant for three years and with Warrnambool Hydraulics for some two years.

30        It is clear that the plaintiff retains a capacity to work within the lighter levels of the employment activities involved in his trade but that he has lost the capacity to engage in the heavier aspects of his trade. In this regard the medical opinions relied upon by the parties unanimously support the position that the plaintiff is now precluded from engaging in work within his trade which involves heavy physical activity and which may be highly remunerative, such as that which involves the maintenance of large diesel engines or work within the mining industry. When account is taken of both the hourly rate which the plaintiff was able to secure whilst working for Warrnambool Hydraulics and the plaintiff’s work history which involves substantial periods in which he chose not to work within his trade however, I am not satisfied that the plaintiff has established that his reduced capacity for work within his trade will necessarily expose him to reduced levels of income which would give rise to consequences appropriately characterised as involving pain and suffering.

31        I am satisfied however that the range of employment opportunities which the plaintiff is now fit to undertake within his trade has been substantially restricted. Whilst it is clear that the injudicious behaviour on the plaintiff’s part was the cause of his loss of employment with the first defendant, I accept the plaintiff’s evidence that the restriction in his capacity for work played some part in his loss of employment with Horsham Hydraulics. I am also satisfied that the restriction in the type of work which the plaintiff is now able to perform is likely to have an adverse impact upon his ability to secure employment by reason of the fact that his field of employment has been substantially limited, and that this restriction is playing a part in the difficulty which the plaintiff has encountered in finding employment since losing his position with Horsham Hydraulics.

32        Equally, I am satisfied that the plaintiff’s determination to retrain as an excavator driver is likely to increase the field of employment which is open to him, and that the plaintiff’s attitude in this regard speaks in favour of his desire to minimise the effects which his injury has upon him which in turn makes me confident in accepting his evidence as to the effect which the accident has had upon his lifestyle and level of activity.

33        Taking into account the fact that the plaintiff is able to, with restriction, engage in his hobby of clay target shooting, when considered in the context of the plaintiff’s presently limited use of pain control agents which are now being prescribed primarily by reason of the symptoms in his back, I satisfied that the level of symptoms which the plaintiff suffers from in his shoulder could not generally be described as being more than moderate and that they are probably intermittent and brought on by activity. The evidence given by the plaintiff as to the way in which his symptoms impact upon his ability to sleep is, in my opinion, generally consistent with that finding.

34        I am satisfied however that the plaintiff has lost the ability to engage in any form of heavy physical activity which involves the use of his dominant arm and is now permanently restricted to him and that:

(i)  he is largely precluded from: 

ƒ	maintaining his motor vehicles;
ƒ	manipulating weights as a form of exercise or other activity;
ƒ	riding a motor cycle;
ƒ	engaging in his pastime of archery;

ƒ using a chain saw or other vibrating machinery of that type,

including a lawn mower;

ƒ using his arm in above shoulder activity;

(ii)     he is restricted but not prevented from engaging in his sporting activities of shooting, fishing and off-road driving;

and that in a forty-one-year-old man whose work and recreational pursuits all involve physical activity, the restriction imposed upon him by the injury to his dominant arm which is described by Mr Scott as rendering him fit:

“Only for light work only which did not involve reaching up or reaching out or lifting more than 10 kilograms in weight or performing any repetitive or forceful work or handling heavy tools and in particular, vibrating tools”

gives rise to consequences which are appropriately described as being “very

considerable”.

Conclusion

35        In deciding the issue which arises in this case; namely, whether the plaintiff’s pain and suffering consequences, 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, I am required to assess the consequences in terms of pain and suffering which the plaintiff’s injury has occasioned to him and determine where the facts of this case sit in the broad spectrum of cases. Whilst I am guided in my approach to the analysis of the particular circumstances of this case by the statements of the Court of Appeal in both Haden Engineering Pty Ltd v McKinnon[11] and Sutton v Laminex Group Pty Ltd,[12] the task which I am required to undertake remains –

“… a value judgment, in which matters of fact and degree, and of

impression, are operative”[13]

and one in which I am required to take into account –

“… not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to some extent, by what is retained.”[14]

[11] [2010] VSCA 69

[12] [2011] VSCA 52

[13]           Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181

[14]           Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260

36        I am satisfied that the plaintiff’s left shoulder condition has impacted upon his life in the following ways:

(i)	firstly, it is such that it has permanently restricted him both in his work and his leisure activity, to light physical activity which does not involve extended reaching or exposure to vibration, and that this restriction has impacted upon the plaintiff’s life in the manner in which I have previously described;
(ii)	secondly, it is likely that the plaintiff will continue to suffer from discomfort in his shoulder of varying degree which will require him to manage his injury by being not only conservative in the physical activity which he chooses to undertake, but also cautious in the manner in which he undertakes physical activity, for the duration of his life.

37        Further, in assessing whether the consequences to the plaintiff of the injury to his dominant left shoulder are appropriately categorised as being “serious” within the meaning of the Accident Compensation Act 1985, I am satisfied that the point from which this analysis should be undertaken is that to which I have earlier referred, namely that physical pursuits were a fundamental feature of the plaintiff’s life.[15]

[15]           I am of the opinion that this is an appropriate statement to make when one considers the extensive range of physical activities in which the plaintiff engaged, to which I have previously referred.

38        When I consider the effect which the plaintiff’s injury has had upon his ability to engage in those activities and take into account:

(i)	the medical evidence which satisfies me that the plaintiff’s condition is unlikely to improve given the arthritic condition which is present in his shoulder;[16] and
(ii)	the restriction which the plaintiff’s injury has had upon his ability to engage in unrestricted physical work which had been a constant feature of his employment up until the date of his injury;

I am of the opinion that whilst this case falls at the very borderline of those which might be judged as occasioning consequences which are appropriately described as being “more than significant or marked” and at least “very considerable”, it is appropriate to employ that description when categorising the consequences to the plaintiff of the injury he has suffered to his dominant left shoulder.

[16]           See the report of Mr Schofield dated 27 October 2011 and Dr Du Toit dated 5 September 2011.

39        For these reasons, I am satisfied that the plaintiff is entitled to the leave which is sought in this proceeding and I will hear the parties as to the orders sought in the proceeding and also upon the issue of costs.

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