Myers v R and K Tree Maintenance Services Pty Ltd
[2017] VCC 978
•27 July 2017
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-05434
| GEOFFREY DONALD MYERS | Plaintiff |
| v | |
| R & K TREE MAINTENANCE SERVICES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 10 & 11 July 2017 | |
DATE OF JUDGMENT: | 27 July 2017 | |
CASE MAY BE CITED AS: | Myers v R & K Tree Maintenance Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 978 | |
REASONS FOR JUDGMENT
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Subject: Accident Compensation
Catchwords: Serious injury; pain and suffering; shoulder injury; unrelated medical conditions; onus of proof.
Legislation Cited: Accident Compensation Act1985
Cases Cited:Dressing v Porter & Anor [2006] VSCA 215; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Poholke v Goldacres Trading Pty Ltd & VWA [2016] VSCA 232; Kovacic v TAC [2016] VSCA 139
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell with Mr M Fogarty | Arnold Dallas McPherson |
| For the Defendant | Mr A Moulds QC with Ms C Willshire | Hall & Wilcox |
HIS HONOUR:
Introduction
1 Geoffrey Myers was employed by the defendant clearing trees from an area at Victoria Hill near Bendigo on 7 June 2010 when he suffered an injury to his dominant right shoulder. The circumstances in which his injury was sustained are not disputed by the defendant.
2 Following the incident, Mr Myers had a week off work and attended his general practitioner. After returning to work, he experienced problems in his shoulder and was unable to continue. His employment was terminated.
3 He had various types of conservative treatment up until April 2012 when he underwent surgery, leading to some initial improvement of his symptoms. He undertook a variety of alternative employments and suffered further unrelated injuries, principally to his back and hip.
4 He now seeks leave to claim damages at common law in respect of the pain and suffering consequences of his right shoulder injury. His application is made on the basis that he has suffered a serious injury as defined in paragraph (a) of the definition of “serious injury” in s134AB(37) of the Accident Compensation Act 1985 (“the Act”). The right shoulder is identified as the body function said to be relevantly lost or impaired for the purposes of satisfying the statutory test.
5 The defendant disputes the plaintiff’s entitlement to leave on the basis that the consequences flowing from his right shoulder injury do not meet the threshold for leave to be granted. Specifically, the credibility and reliability of the plaintiff as a historian was challenged in the application before me with the defendant highlighting the impact of a subsequent motor vehicle accident in 2015 and the relative paucity of medical treatment directed towards the plaintiff’s shoulder condition since that time.
6 Mr Moulds QC, who appeared with Ms Willshire on behalf of the defendant, emphasised the onus falling to the plaintiff in proving the extent of consequences flowing from the right shoulder injury. The plaintiff’s varying history to medical examiners and the clinical records from his treating doctors featured prominently in the cross-examination of Mr Myers.
7 Conversely, Mr Purcell, who appeared with Mr Fogarty on behalf of the plaintiff, stressed the serious nature of the injury and the poor surgical result that was ultimately achieved as evidence of ongoing permanent restriction of use of the shoulder, which they submitted adequately satisfied the statutory threshold notwithstanding the earlier back injury and unrelated medical conditions.
8 Mr Myers was the only witness required for cross-examination. The evidence before me was otherwise tendered from the parties’ respective court books.
The lay evidence
9 Mr Myers had sworn two affidavits dated 20 July 2016 and 26 June 2017 in support of his application.[1] In summary, the first affidavit described his background prior to sustaining his right shoulder injury. It then described the treatment received and his general progress up until 2016. In particular, I noted the following matters from his first affidavit as relevant to my determination:
[1]Exhibit A, p8-17
· Mr Myers suffered a head injury and compression fracture in his lower back at the age of approximately 12 years when he fell from a tree. This required about a week in hospital.[2]
[2]Exhibit A, p9[4]
· Mr Myers joined the army after leaving school in Year 10. After periods of service, including overseas postings, he was discharged after six and a half years, having developed some psychological symptoms.[3]
[3]Exhibit A, p9[5]
· In 2008 or 2009, Mr Myers had a motorcycle accident involving multiple injuries and disclosing the old compression fracture in his spine.[4]
[4]Exhibit A, p9[6]
· After leaving the army and prior to the industrial accident, Mr Myers had worked in a variety of physical jobs, including a defence security guard and a bouncer. He obtained various licences relevant to tree-lopping work.[5]
[5]Exhibit A, p9[7]
· Following the incident on 7 June 2010, Mr Myers had a week off work and received various types of conservative treatment, including injections into his shoulder. He eventually underwent a surgical repair on 10 April 2012.[6]
[6]Exhibit A, p10[8]-[13]
· Following initial improvement, the shoulder symptoms returned and eventually Mr Myers found work in traffic management and as a security guard. He had also undergone a hernia operation in March 2014.[7]
· In late 2015, Mr Myers took time off employment to deal with an ongoing alcohol problem which dated back to his military service.[8]
· On 16 April 2015, Mr Myers was involved in a motor vehicle accident when working performing “stop-go” work as part of the NBN roll-out in Ballarat. He initially had two weeks off work and returned to light duties briefly, but was then effectively discharged from that work.[9]
· Mr Myers had some physiotherapy in January 2016 for his lower back and hip problems relating to the motor vehicle accident, and had ceased active treatment for his shoulder “as I understand there is really no more treatment, other than to try to be careful with what I do”. He continues to use over-the-counter painkillers, being Panadol and Panadol Osteo. He was prescribed Panadeine Forte and another painkilling medication.[10]
· Mr Myers continues to perform some casual security work but is concerned about his physical strength, relating it to his right arm injury in 2010. This work averages eight to ten hours per week.[11]
· Mr Myers’ right shoulder restricts him in a range of day-to-day activities, including difficulty with sleep, tightness in the right arm, and an inability to use a chain saw. It also restricts activities such as shooting and gardening, and the use of certain power tools or lawn mowing. The shoulder pain increases with activity.[12]
· Mr Myers deposes to reliance on painkilling medication to alleviate the pain in his shoulder. He describes having been prescribed Celebrex in relation to his hip and states:
“I now typically have an average of about six Panadol per day and I also use Panadeine Forte for breakthrough pain. So as to help me sleep at weekends, I take up to six Panadeine Forte over the weekend. I stopped taking Celebrex about a month ago. In the last few weeks I have also been using Panadol Osteo, at the rate of about eight per day. I had for a considerable time before my motor vehicle accident affecting my hip been taking Panadol and Panadeine Forte at the rates described above.”[13]
[7]Exhibit A, p10-11[14]-[16]
[8]Exhibit A, p11[16]
[9]Exhibit A, p11[17]
[10]Exhibit A, p11[18]
[11]Exhibit A, p12[19]-[20]
[12]Exhibit A, p12-13[21]
[13]Exhibit A, p13[22]
10 In Mr Myers’ second affidavit sworn shortly prior to the hearing, he essentially confirmed the ongoing pain, restrictions and consequences of his right shoulder injury as previously set out in his earlier affidavit. He described the current restrictions and treatment as follows:
· Mr Myers continued to attend a general practitioner at the Tristar Medical Clinic in Ballarat and had recently been referred for further radiology on the right shoulder. He stated:
“My GP continues to manage my use of medication. I have taken a lot of over the counter pain killers and more recently I have been given a prescription pain killer. I also take the anti-depressant, Pristiq.”[14]
· Mr Myers described constant pain in his right shoulder, varying from an ache to feelings of numbness and much stronger pain two or three times per day which he rates at a level of 8/10.[15]
· Mr Myers tries to restrict his level of physical activity in order to limit the pain, referring to his affection for his earlier job as a tree lopper and work he used to perform in the garden. He deposed to having an ambition to start his own tree lopping business which he cannot do because of the shoulder injury.[16]
· Mr Myers continues to perform work as a security guard on a casual basis, but he is concerned about the restrictions of his shoulder condition should he be placed in a situation of danger.[17]
· Mr Myers described having ─
“… some ongoing problems with my hip and low back from the subsequent car accident. My GP has prescribed Lyrica for those symptoms. I consider my right shoulder to be my major problem.”[18]
[14]Exhibit A, p15[4]
[15]Exhibit A, p15[5]
[16]Exhibit A, p16[7]
[17]Exhibit A, p16[8]
[18]Exhibit A, p17[10]
11 When cross-examined, I noted the following matters as relevant to this application:
· Mr Myers suffered post-traumatic stress disorder, dating from his military service in Timor in the 1990s, which had contributed to some problems with alcohol abuse.[19]
[19]Transcript (“T”) 9, Line (“L”) 13-20
· This condition flared up significantly in 2015 and one of the aspects of it was to cause difficulty sleeping. This was still continuing. This had been the case for many years.[20]
[20]T9, L22-30
· Mr Myers had psychiatric treatment from a Dr Roy Wyatt in 2015, but had not seen him for about a year. He then disagreed that he suffered sleeping difficulty from the post-traumatic stress disorder.[21]
[21]T10, L4-L14
· In 2011-2012, after the shoulder injury, Mr Myers obtained work as a tiler’s apprentice, which was the first job after ceasing tree lopping. The work involved, “Just … cleaning mainly, then mixing the cement and getting it ready for Mark for tiling”. He denied that that work involved a degree of lifting and carrying.[22]
[22]T11, L6-L31 and T12, L5-L9
· In working as a tiler’s apprentice over a three or four month period, he had only ever lifted a tile or two at a time and never a box of tiles.[23]
[23]T12, L15-L23
· Mr Myers agreed that it was lifting tiles that ultimately led to cortisone injections and a referral to Mr Williams prior to the surgery in 2012.[24]
[24]T12, L24-L27
· Following the surgery and initial post-operative symptoms, the shoulder condition improved.[25]
[25]T13, L4-L6
· The first job Mr Myers looked for after the surgery was security work, and in 2013, he obtained a heavy vehicle licence to get a job as a truck driver.[26]
[26]T13, L10-L16
· In January 2013, Mr Myers was working as a furniture removalist for probably six months doing domestic removals, helping people move house:
“We use the trolley, not all of it was manual. A lot of it was trolleys. Boxed and moved by trolley.”[27]
[27]T13, L17-L30
· Mr Myers could not remember a proposition put to him that on 9 January 2013, he had reinjured his shoulder lifting a piano.[28]
[28]T14, L5-L12
· Mr Myers stopped work as a removalist because of suffering the hernia in his stomach. He denied it was caused due to lifting.[29]
[29]T14, L13-L17
· In April 2013, Mr Myers re-injured his shoulder throwing a tennis ball for his dog and had two more cortisone injections.[30] He was referred to another surgeon in Bendigo, Mr Dayananda, but could not remember if he had actually seen him.[31]
[30]T14, L19-L24
[31]T14, L25-L30
· Mr Myers moved to Bendigo between April and July 2012 and continued to see Dr Erhardt in Bendigo for his shoulder injury and also saw doctors in Ballarat at the Tristar Clinic.[32]
[32]T15, L8-L19
· Mr Myers was having problems with his lower back dating back to about 2012, and made worse by the car accident in 2016.[33]
[33]T16, L3-L7
· Mr Myers was given Panadeine Forte for his back in October 2012 and continued to be regularly reviewed at the Ballarat clinic during 2013. There was reference made to the shoulder injury in August 2013.[34]
[34]T16, L13-L27
· Clinical notes reveal Mr Myers was having some shoulder difficulties through 2014 and noted complaints of shoulder pain through to mid-2014.
· Mr Myers disagreed with the proposition that from mid-2014, with one exception, he had made virtually no complaints about his right shoulder condition until a couple of months ago.[35]
[35]T17, L23-L30
· A clinical note made in August 2015 related to shoulder complaints, and Mr Myers sought a medical certificate in relation to limitations for work and trouble sleeping.[36]
[36]T18, L5-L11
· In late 2015, a clinical note showed that Mr Myers had been having insomnia for years related to his alcohol consumption, but he disagreed, stating it also related to his shoulder.[37]
[37]T18, L22-L30
· A clinical note in April 2015 related to the back injury following the car accident. Mr Myers agreed with the proposition he had a good deal of trouble with his lower back from that time and those symptoms continued.[38]
[38]T19, L22-L30
· A clinical note on 22 March 2016 noted Mr Myers was still awaiting physiotherapy, still having problems with pain and was prescribed Panadeine Forte for his lower back and hip. He responded that he was not taking Panadeine Forte at present and further stated that the prescription in 2016 was also for his shoulder. He stated that the notes in 2016 did not refer to a prescription of Panadeine Forte for his shoulder because he was having difficulty with the insurer not paying for his prescription and took over‑the-counter painkillers.[39]
[39]T20, L13-L30
· A further clinical note on 23 June 2016 recorded Mr Myers:
“has chronic pain in right hip and thigh
car accident related
taking celebrex
pain not controlled well”[40]
[40]Exhibit A, p46
He was prescribed Celebrex and Panadeine Forte and he stated:
“… these are all for my back but I was also taking the Panadeine Forte for my shoulder as well. But nothing was prescribed for my shoulder because I couldn’t afford to get the script myself.”[41]
[41]T21, L2-L12
· Mr Myers commented in relation to a further clinical note on 9 November 2016 stating:
“Right hip hurting again – ongoing
has tried various painkillers, none of them helping
affecting work as a security guard”
He could manage the pain in his back but it was only because of where he was living in Ballarat that it was aching.[42]
[42]T22, L3-L16
12 Mr Myers was cross-examined in relation to a history given to a Dr Taubman, who had examined him on 30 May 2016 in relation to a claim for his back injury. He agreed he had told Dr Taubman at that time that symptomatic relief is obtained with Panadeine Forte, four tablets weekly. The latter medication helps him sleep on weekends. Panadol, four to six tablets a day, is also used for pain relief.[43] Mr Myers stated in cross-examination that the use of medication in his history given to Dr Taubman also related to his shoulder. He further agreed that he did not say anything at all about taking medication for his shoulder to Dr Taubman.[44]
[43]Exhibit 1, p28 and T23, L6-L13
[44]T23, L20-L31
13 Mr Myers also agreed that he had told Dr Taubman, in relation to the back and hip, that he could not do the garden, could not even push a lawnmower because of aches. He responded that his back was fine, he was controlling the pain and not letting it beat him. He further stated that he could do the lawns but had to push the lawnmower with his stomach and left arm, which did not hurt his back.[45]
[45]Exhibit 1, p28 and T24, L10-L22
14 Mr Myers was further cross-examined about the work he had performed and agreed that his hernia condition in 2014 had occurred when he was working for StarTrack as a courier driver and lifted a 15 kilogram weight. He had done that work for about six months and it involved dropping off parcels and various other items to different shops.[46]
[46]T25, L5-L26
15 Mr Myers had then returned to security work, which he had done for about 18 months because good money was offered to do that work.[47]
[47]T25, L27-L31
16 Mr Myers agreed that his doctor had prescribed Lyrica for his back, but he was no longer taking it because it was making him sick, “so I’ve stopped everything, except my Panadol and Ibuprofen”.[48] He further stated:
“… the reason why I stopped for my shoulder is because I wasn’t getting anywhere with Allianz with the, um, medication helping me pay. And then, unfortunately, down the track I got hit by the car.”[49]
[48]T27, L3-L11
[49]T27, L28-L31
17 Mr Myers was further cross-examined about treatment he had received from a Dr Khan at the Tristar Clinic. He agreed he had consulted Dr Khan in September 2016 for a headache and high blood pressure, and did not further attend until March 2017.[50]
[50]T28, L28-T29, L8
18 Mr Myers disagreed that he had seen Dr Khan in April 2017 or July 2017 to discuss a report for his lawyers in relation to his shoulder condition. He maintained that she had ordered an ultrasound of his right shoulder before any report was asked for.[51]
[51]Exhibit A, p51 and T29, L8-L26
19 There was some further cross-examination relating to activities, such as fishing, which had been referred to in affidavit material. Ultimately, it is not necessary to make reference to this evidence.
20 Mr Myers was re-examined in some detail, mainly directed towards the nature of the employment activities undertaken by him following the shoulder injury in 2010 and the medical treatment received in relation to both the shoulder and back conditions. I noted in particular that the security work was being performed at a local bowling club, was usually for somewhere between eight and 16 hours a week, and was described by Mr Myers as:
“… just keep the peace and I go around picking up empty glasses and pushing in chairs and keeping the elderly happy”.[52]
[52]T37, L8-L16
21 Finally, in re-examination, Mr Myers emphasised the enjoyment he had received doing arborist work.[53]
[53]T39, L3-L6
The medical evidence
22 Mr Myers relied upon medical reports from his treating surgeon, Mr Huw Williams, most recently dated 7 October 2013, and his general practitioner in Ballarat Dr Le dated 30 April 2014.[54] There was also a short report from the current general practitioner, Dr Khan, dated 29 July 2017 noting the ongoing complaints of right shoulder pain from April 2017.[55]
[54]Exhibit A, p18-38
[55]Exhibit A, p51-52
23 In addition to these reports from the treating practitioners, there were medical opinions provided from Dr David Murphy, rehabilitation physician, dated 15 May 2015 and 12 May 2017.[56] A further medico-legal opinion from Professor Peter Disler dated 3 April 2017 was also relied upon.[57] Professor Disler is a specialist physician in rehabilitation medicine.
[56]Exhibit A, p39-44
[57]Exhibit A, p45-49
24 Finally the plaintiff tendered in evidence ultrasound studies of the right shoulder dated 7 June 2010, 6 September 2010 and 24 May 2017.[58] I note for completeness that the plaintiff also tendered a brief report from an earlier orthopaedic surgeon, Mr Dayananda dated 7 April 2011 which referred to an examination performed in March 2011 and some initial treatment including injections into the right shoulder.
[58]Exhibit A, p51A-53
25 The defendant tendered reports from Dr James Rowe, occupational physician, dated 22 June 2011; Mr Richard McArthur, orthopaedic surgeon, dated 7 August 2012; Mr Timothy Gale, general and trauma surgeon, dated 22 August 2014; Dr Andrew Jakobovits, gastroenterologist, dated 5 September 2014; Dr I. Taubman, physician in general medicine, dated 30 May 2016, and Dr Peter Boys, orthopaedic surgeon, dated 9 November 2016.
26 There was no dispute that Mr Myers had sustained an injury to his right shoulder generally as described by him on 7 June 2010. There is also no dispute medically that he was appropriately treated surgically by Mr Williams in April 2012 when an open resection of the lateral end of the right clavicle was performed at St John of God Hospital in Bendigo. It is significant to an assessment of the present condition of Mr Myers’ right shoulder to note the comments made by his treating surgeon in the report dated 7 October 2013:
“Mr Myers appeared to make an adequate recovery from his right shoulder condition as of August 2012 and the recurrence of pain that developed in April of this year is of some concern. This is particularly so as I am uncertain as to why the pain has developed given the examination findings form[sic] August 2013 and the non presence of significant abnormality on radiographs and ultrasound taken recently. … however, patients who have undergone excision of the lateral end of the clavicle generally note some weakness of shoulder function in the future with slight limitation as to the amount of heavy lifting that can be undertaken. To that end his employment prospects are probably best limited to less strenuous manual labour that[sic] what he had been undertaking and a more sedentary occupation would be recommended. I am not sure of what recreational pursuits Mr Myers otherwise undertakes.”[59]
[59]Exhibit A, p20
27 The more recent medico-legal opinions from Dr Murphy, Professor Disler and Mr Boys are all supportive of the proposition that Mr Myers continues to be troubled by pain and dysfunction in the right shoulder which limits his capacity for unrestricted work and a range of social and domestic activities.[60]
[60]Dr Murphy – Exhibit A, p43, Professor Disler – Exhibit A, p47 & Mr Boys – Exhibit 1, p40-41
28 The real essence of the medical dispute between the parties concerned an evaluation of the consequences said to flow from the plaintiff’s shoulder injury as compared to those consequences arising from other medical conditions, and particularly the back and hip injury suffered in the transport accident in April 2015.
29 Mr Moulds QC tendered into evidence the records maintained by Mr Myers’ general practitioners as the basis for much of the cross-examination in the hearing before me.[61] I will make reference to these records during the course of my analysis of the medical evidence.
[61]Exhibit 1, p42A-77
Analysis
30 I am satisfied on both the medical evidence and the lay evidence given by Mr Myers that he has suffered a shoulder injury in compensable circumstances which has impacted on both his capacity for employment and his enjoyment of life. The question for determination in this application remains the extent to which the consequences flowing from that shoulder injury can be properly assessed in regard to the statutory threshold which needs to be satisfied before leave can be given.
31 In final address Mr Purcell, on behalf of the plaintiff, submitted that the medical evidence supported an inference that the ongoing problems with the shoulder were certainly evident in 2013 and 2014 to the extent that they had required ongoing injections. Ultimately it was submitted that that level of symptomatology continued and would justify a grant of leave.
32 Mr Purcell referred to the authority in Dressing v Porter & Anor.[62] Mr Purcell submitted that Dressing v Porter was authority for the principle that where the consequences of the claimed injury entitled grant of leave “it was beside the point that some other condition might have also satisfied the test.”[63]
[62][2006] VSCA 215
[63]T68, L2-4
33 I accept as a proposition of law that the consequences of an injury which are relied upon for a grant of leave must be demonstrably referrable to the identified compensable injury. Once that link has been established it is beside the point that some other condition might also have satisfied the test. I have considered in particular the reasoning of the Court of Appeal in Dressing v Porter at [47] to [49] with respect to the comments made as to the relative lack of difficulty in that case in differentiating between the consequences of a compensable neck injury and other injuries or conditions affecting the appellant’s hip, knee, toes and hands.
34 The Court of Appeal considered the principle of disentanglement of consequences in Peak Engineering & Anor v McKenzie[64] and Poholke v Goldacres Trading Pty Ltd & Victorian Workcover Authority.[65]
[64][2014] VSCA 67
[65][2016] VSCA 232
35 In Peak Engineering the factual background involved the worker suffering a compensable injury to his hand in 2004, then returning to normal work but in a different capacity between 2006 and 2008 and then suffering a further knee injury in 2008 forcing him to again cease work and take on a less strenuous occupation. The Court of Appeal stated in that scenario:
“In a case of this kind, where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injuries.”[66]
[66]Peak Engineering & Anor v McKenzie at [24]
36 The Court of Appeal had set out various matters which were clearly related to the knee injury which had not been referred to in the reasons given by the learned trial judge. The Court went on to state further:
“It is possible to imagine a case where the consequences of the original injury are so clearly separate and distinct from the consequences of the subsequent injury that no ‘disentangling’ is necessary. But this was not such a case. As the appellants pointed out, there was evidence indicating that certain of the pain and suffering consequences which his Honour regarded as relevant were attributable to the knee injury as well as to the hand injury.”[67]
[67]Ibid at [25]
37 In Poholke the Court of Appeal considered a factual scenario where a worker had sustained what the court described as a serious neck injury suffered two years before a back injury which was the subject of the leave application. Although that appeal was decided principally on the question of the inadequacy of the trial judge’s reasons, the court did determine for itself the outcome of the application. In so doing the court accepted that there had been a reduction in the worker’s capacity by reason of the earlier neck injury, but nevertheless found that the evidence established that the back injury had resulted in a “significant reduction in his work capacity.”[68] The Court of Appeal went on to find that the worker had satisfied the statutory test in respect of the pecuniary loss consequences of his back injury and therefore did not need to specifically consider separately the disentanglement of pain and suffering consequences.
[68]Poholke v Goldacres Trading Pty Ltd & Victorian Workcover Authority at [130]
38 Reference was also made to Kovacic v Transport Accident Commission[69] which concerned an application for leave under the provisions of the Transport Accident Act. The applicant had been incapacitated for work by reason of a back injury resulting from an industrial accident in October 2000 and had subsequent suffered a neck injury requiring surgery in a transport accident in June 2008. Notwithstanding that orders were sought by consent in that case, the court nevertheless commented on the relevant principles to be applied stating:
“While what has been lost by way of social, domestic or recreational activities has the capacity to bear upon the seriousness of the consequences of an injury, it is of course all of the relevant consequences of an injury that must be considered in determining whether or not an applicant has satisfied the ‘very considerable’ test referred to in Humphries v Poljak.”[70]
[69][2016] VSCA 139
[70]Ibid at [18]
39 Finally, in closing address Mr Purcell submitted that I should find that the nature of the surgery performed on the plaintiff’s right shoulder coupled with the ongoing complaints of pain and investigations recorded in the medical records in 2017 should enable me to conclude that the shoulder symptoms were still producing consequences that could fairly be described as at least very considerable and which were likely to persist indefinitely.
40 Mr Moulds QC, for the defendant, submitted that the first issue to be considered was the plaintiff’s credibility with the defendant putting the proposition that the plaintiff had overstated the consequences of his shoulder injury and understated those impacting from the back and hip resulting from the transport accident in 2015. It was submitted that such a lack of credibility, or indeed reliability of the plaintiff’s evidence was crucial in a case where there were differing injuries requiring the plaintiff to positively discharge an onus as to the consequences said to flow from the particular injury which was the subject of the present application.
41 Mr Moulds QC gave numerous examples in the course of his final address including the conflict between the plaintiff’s statement in his affidavit in relation to the shoulder injury impacting on his sleep being compared to a history given to a medical practitioner in 2015 stating that he had been having insomnia for years as a consequence of excessive alcohol consumption. A further example pointed to the medical records indicating the prescription of painkilling medication for the back and hip where the plaintiff had maintained that these medications were for his shoulder as well, but the insurer had refused to pay for them.
42 Reference was also made to the history recorded by Dr Taubman who had specifically examined Mr Myers in relation to the back and hip injury suffered when struck by a car in April 2015. It is relevant to set out some of that history which was put to Mr Myers in cross-examination.
“The back and hip discomfort has become worse and he states that on ‘some days I can hardly move.’ At times pain will radiate into the anterior aspect of the right thigh and will persist over a 24-hour period. The right thigh discomfort is described as a sensation of pins and needles. The right hip at times will feel as if it is locked and walking tends to increase the severity of the symptoms. Current tolerance for walking is stated to be 2 km and for standing approximately one hour. Walking down hill is performed without difficulty, although tiredness develops when walking up hill. Back and hip symptoms tend to improve with rest.
Symptomatic relief is obtained with Panadeine Forte four tablets weekly. The latter medication helps him sleep on weekends. Panadol four to six tablets a day is also used for pain relief.”[71]
[71]Exhibit 1, p26-28
43 Further, under a heading of “Past medical history” Dr Taubman recorded as follows:
“He gives a past history of right shoulder rotator cuff surgery in 2012. He also gives a past history of alcohol dependency.”[72]
[72]Exhibit 1, p29
44 I was also referred by Mr Moulds QC to the notes of the Tristar Medical Clinic in Ballarat, specifically insofar as there is an absence of recordings of any complaints of symptoms in the right shoulder between August 2015 and April 2017 despite numerous attendance for other conditions during that time.
45 I have carefully read the medical records tendered in this case and I am satisfied that such a submission is a valid one.[73] Indeed a perusal of those clinical notes, particularly following the car accident in 2015, provides a stark contrast to the matters set out by Mr Myers in his affidavits.
[73]Exhibit 1, p44-51 and Exhibit A, p50-51A
46 I do not find that Mr Myers has in any way attempted to deliberately mislead the court as to the relevant consequences flowing from any particular injury or medical condition. I note that he has been diagnosed with Post Traumatic Stress Disorder for many years and this has been complicated by alcohol abuse which required medical treatment in 2015. It was clear to me from the manner in which he gave his evidence that he could not offer what I regarded as reasonable or adequate explanations for some of the apparent anomalies in the medical histories given by him or in the affidavit material sworn in support of this application.
47 Additionally, the nature of the work performed by him after his shoulder surgery, including removalist work and courier work where he had done heavy lifting suffering a hernia injury in 2014, does not sit comfortably with a submission that the pain and suffering consequences to his right shoulder should be regarded as “at least very considerable.”
48 I do accept that the ongoing consequences of the right shoulder impact to some extent on his domestic, social and recreational activity and also to some extent result in ongoing pain and suffering. I do not accept that the consequences of that injury when compared with the range of other possible consequences can fairly be described as “at least very considerable.”
49 The application must be dismissed.
50 I will hear the parties in relation to the formal orders sought and orders for costs.
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