Nash v Cabrini Health Limited
[2011] VCC 1434
•14 December 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-11-00103
| Carl Nash | Plaintiff |
| v | |
| Cabrini Health Limited | Defendant |
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| JUDGE: | S Davis |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 November 2011 |
| DATE OF JUDGMENT: | 14 December 2011 |
| CASE MAY BE CITED AS: | Nash v Cabrini Health Limited |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1434 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s134AB(16)(b) – permanent impairment of the body function of the right shoulder - pain and suffering
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. Dyer of Counsel with | J. N. Zigouras Lawyers |
| Mr D. Churilov of Counsel | ||
| For the Defendant | Mr I. Gourlay of Counsel | Hall & Willcox |
| HER HONOUR: |
1 The plaintiff applies under s 134AB(16)(b) of the Accident Compensation Act 1985 (Vic) (the Act) for leave to issue proceedings for the recovery of damages for pain and suffering only[1] in respect of a soft tissue injury to the right shoulder suffered in a fall on 27 February 2005 during the course of his employment with the defendant. After the right shoulder injury, he had an ultrasound scan of the right shoulder, and some physiotherapy. He returned to his work as trade cook on modified duties and reduced hours in April 2005. In May 2005 he was seen by an orthopaedic surgeon and was treated with a steroid injection. However, his symptoms persisted and in December 2005 he underwent an arthroscopic pancapsular plication of the right shoulder. He recovered well from the surgery and resumed work on alternative duties in May 2006. He returned to the kitchen as part of his light duties in June 2006 but resigned from his position in early 2007. Between July and September 2009 he worked as a casual teacher of commercial cookery and from September 2009 until August 2011 he worked full time for Chefing Solutions, performing administrative work as a recruitment officer until he was made redundant. He last saw his treating orthopaedic surgeon, Mr Stewart Proper, in March 2007. He has had no medical treatment for the right shoulder since that time, apart from an attendance in 2010 at the Monash Medical Centre when his right shoulder “popped”.
The issues
[1] At the commencement of the hearing, counsel for the plaintiff indicated that the plaintiff was not pursuing his claim in respect of loss of earning capacity, nor any claim in relation to psychiatric injury.
2 The plaintiff says that as a result of his right shoulder injury he has suffered a permanent impairment of the function of the right shoulder comprising a reduced range of movement, which limits his activities and causes ongoing discomfort which is exacerbated by some activities. His right shoulder is unstable and is liable to “pop” out, which has happened once prior to surgery and once since surgery. He is unable to return to work as a chef and no longer plays cricket, golf or basketball. He has to sleep with pillows at night to avoid rolling onto his right shoulder. He is only 42 years old and right handed. The plaintiff says that the pain and suffering consequences of his right shoulder impairment, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being more than significant or marked and as being at least very considerable.
3 The defendant concedes that the right shoulder impairment has had an impact on the plaintiff’s day to day life but says that in all the circumstances the sequelae of his impairment in terms of pain and suffering are not more than considerable when compared with other cases in the range of possible impairments or loss of a body function of the right shoulder.
Medical evidence
4 There was no dispute between the parties concerning the medical evidence concerning the plaintiff’s injury, his treatment, and the permanency of symptoms of some pain and restriction of movement in the right shoulder. The medical evidence may be briefly summarised.
5 Between the time of his injury and his referral to an orthopaedic surgeon, Mr Proper, the plaintiff was treated by a number of general practitioners at the Unified Healthcare Group, including Dr Andrea James, Dr Steven Miller and Dr Jim Giannakopoulos. The reports from the general practitioners set out the various consultations in relation to the right shoulder until his right shoulder surgery on 13 December 2005. Thereafter, the consultations concerned matters unrelated to the right shoulder.
6 Mr Proper’s letters to Dr Giannakopoulos and Dr James deal comprehensively with his treatment of the plaintiff’s right shoulder. On 24 May 2005, Mr Proper noted that x-ray of the right shoulder on 27 February 2005 was normal and he was seen by an orthopaedic surgeon who referred him to physiotherapy with Mr David Rundle. His limited movement improved. Ultrasound on 11 March 2005 suggested no tendon damage. MRI on 3 May 2005 showed significant tendonitis in his supraspinatus, without any gross tearing, and without any labral tears. He diagnosed “a background multi directional instability, which has decompensated because of the relatively minor injury to his supraspinatus tendon”.[2] He felt there was a good chance of recovery if he could return his supraspinatus function to normal. In August 2005, he noted that the plaintiff’s condition had not improved with conservative measures including intensive physiotherapy and subacromial steroid injections. He felt it was time to consider arthroscopic surgery. The procedure was delayed due to an infected abrasion on the right shoulder. On 13 December 2005 Mr Proper reported his surgical findings during the arthroscopy: the plaintiff had “significant multidirectional instability with almost disclocatable shoulder in every direction” and Mr Proper performed “pancapsular labral plication”.
[2] Plaintiff’s Court Book (PCB) 52.
7 On 28 December 2005, Mr Proper reported that only two weeks after surgery the plaintiff’s pain was under control and he was avoiding analgesics. Mr Proper felt some analgesics would assist his proposed exercise regime. On 25 January 2006, he reported that at six weeks since surgery the plaintiff had kept his arm in the sling. It was very stiff and Mr Proper felt it was appropriate that he start mobilising the shoulder. He felt that the plaintiff should not return to work for at least a further month.
8 On 24 April 2006, Mr Proper noted the plaintiff’s history of increasing confidence in his right shoulder in recent weeks, with greater comfort when mobilising. His rotator cuff strength had significantly improved. He was being conscientious in his physiotherapy. Mr Proper felt that the plaintiff would “be able to return to normal given enough time”.[3] On 22 May 2006, Mr Proper noted that the plaintiff was “making slow progress with regards to the right shoulder”. His right shoulder was comfortable with most activities at waist level but he still had difficulty raising the arm above shoulder level. He still had a reduced range of movement, as well as “some weakness on resisted testing of the supraspinatus”. He felt that the plaintiff could return to his kitchen duties, initially four hours three days per week, without performing any overhead or repetitive duties.
[3] PCB 58.
9 On 3 July 2006 Mr Proper noted that the plaintiff had returned to full hours in the kitchen albeit on light duties. The plaintiff reported that the right shoulder ached after work. He was able to cope. He had been progressively stretching the shoulder. He had better range of movement, but still had some weakness on resisted testing of the supraspinatus but no pain. His muscles were continuing to build up resistance. On 29 August 2006, Mr Proper reported that the plaintiff had been able to work up to six hours at a time; he had no acute pains while working in the kitchen although his shoulder was very tired at the end of the week. He still had some catching without pain under the anterior acromion. He had increased strength on external rotation, with some weakness on resisted testing of supraspinatus. He needed to improve his overall endurance.
10 Mr Derrick Billett, orthopaedic surgeon, provided a medico-legal report to the plaintiff’s solicitors dated 12 April 2007[4] in which he noted the plaintiff’s complaints of “intermittent tiredness and stiffness in his right shoulder”; of occasional pain with sharp movements; and of difficulty picking up his three year-old daughter. He felt that the plaintiff’s right shoulder condition had not yet stabilised.
[4] PCB 43.
11 Mr Peter Scott, consultant surgeon, provided a medico-legal report to the plaintiff’s solicitors dated 13 October 2011.[5] He described the injury sustained at work in February 2005 as a “right rotator cuff lesion with supraspinatus tendonopathy”. He noted that in early 2007 the plaintiff had resigned from Cabrini Hospital and returned to the workforce in late 2007 with Chefing Solutions, where he worked in administration and recruitment. He was also teaching twice a week. The plaintiff reported no treatment in the past three or four years. His present relevant complaints were of ache and stiffness in the right shoulder, particularly in cold weather, as well as “trouble raising his arm above shoulder level or pulling or pushing against resistance or getting his right arm behind his back for toileting purposes or carrying anything more than about 10kg in weight”.[6] He told Mr Scott he was no longer able to play cricket, basketball, soccer or golf because of his shoulder problem. On examination, Mr Scott found a full range of painless movement in the left upper limb but in the right shoulder he noted reduced range of movements with discomfort at the extreme of abduction and internal rotation. He described the plaintiff’s current right shoulder condition as “one of ache and discomfort and a reduced range of movement”.[7] He felt that the plaintiff was unable to return to work as a chef but was fit for work which does not require him to raise his right arm above shoulder level or pull or push against resistance or lift more than about 5kg or 10kg in weight or any action which requires to him get his right arm behind his back. He felt that the plaintiff was perfectly fit to carry out his present occupation (recruitment officer at Chefing Solutions, and teaching hospitality and business management). He felt that his present right shoulder problems were likely to be permanent.
[5] PCB 67.
[6] PCB 70.
[7] PCB 72.
12 The plaintiff’s treating physiotherapist, Mr David Rundle, treated the plaintiff from March 2005 to January 2007 in relation to his right shoulder problems. He provided a number of reports. The last report, dated 30 May 2007, was to the plaintiff’s solicitors.[8] In that report Mr Rundle indicated that the plaintiff had a fall in September 2006 in which he injured his left ribs and had difficulty using his left arm, and was using his right arm more. When he last saw the plaintiff, in January 2007, he received a complaint of ongoing stiffness in the right shoulder, and noted that movement was “disjointed”. Mr Rundle also noted a complaint of a shaking right hand. I note that this was investigated by a neurologist, Dr Ron Freilich, and diagnosed as an essential tremor, which the parties agreed was unrelated to the right shoulder injury. Mr Rundle did not feel there was any permanent incapacity in the right shoulder. He noted that the plaintiff did not complete his rehabilitation. Ordinarily, he would expect a very good prognosis after the capsular plication.
[8] PCB 37.
13 Mr Michael Dooley, orthopaedic surgeon, provided a medico-legal report dated 25 January 2011[9] to the defendant’s solicitors in which he stated his opinion that during the fall at work in February 2005 the plaintiff suffered a dislocation of the right shoulder that “spontaneously reduced”.[10] He had persisting symptoms and arthroscopy confirmed “multidirectional instability of the shoulder” which was treated with capsular plication. Mr Dooley noted that this sort of surgery can reduce but cannot eliminate the tendency for subluxation or dislocation of joints. He noted that following such surgery he would have expected the plaintiff to experience intermittent right shoulder girdle pain and some restriction of shoulder motion. He diagnosed an underlying connective tissue or collage disorder leaving some generalised laxity of joints, and a dislocation of the right glenohumeral joint in February 2005. He felt that the plaintiff would permanently suffer a loss of right shoulder function, which he described as “mild to moderate”,[11] and that he would continue to note intermittent right shoulder pain and some restriction of right shoulder movement.
[9] Defendant’s Court Book (DCB) 19.
[10] DCB 20.
[11] DCB 21.
14 The medical evidence is to the effect and I therefore find that as a result of the right shoulder injury the plaintiff has suffered a permanent impairment of the function of the right shoulder which comprises some pain and restriction of movement.
The plaintiff’s evidence
15 The plaintiff swore two affidavits in the proceeding. In the first affidavit dated 25 August 2010[12] he noted his employment history and qualifications. He holds a BTEC Diploma in Hotel Catering and Institutional Operations from Westminster College in London, a Certificate in Occupational Health and Safety from the Royal Institute of Public Health and Hygiene London, and a Master of Business Administration from Monash University. Prior to working at Cabrini Hospital, he worked at a restaurant in Toorak in which he was part- owner for two years. Before then he worked for the RACV as a club manager and food and beverage manager for three years. After the injury, he did not return to his pre-injury duties. He left Cabrini Hospital in July 2007 and worked as a casual teacher in commercial cookery at a number of institutes until September 2009, when they closed down. From September 2009 he has been employed as a fulltime operations manager with Chefing Solutions, doing administrative duties. After July 2007, he was drinking “very excessively” and he separated from his wife. He continues to see his two children regularly.
[12] PCB 21.
16 Although it has been over five years since the injury, he continues to have “some limitation in movement, weakness, stiffness and pain in the right shoulder. These symptoms are aggravated by any activity such as pushing, lifting and particularly above shoulder movements”.[13] He stated that at times the right shoulder pain is “quite severe”, and in the colder weather his shoulder movements become more restricted. Even minor tasks can increase his shoulder pain. He has difficulty picking up his children. Whilst he can manage many tasks, he has to watch what he does. From time to time, he is woken at night by shoulder pain. He can no longer work as a chef, for which he is trained “and particularly enjoyed”.
[13] PCB 23-24.
17 In his second affidavit, sworn on 24 November 2011,[14] the plaintiff stated that he had been made redundant in August 2011 from his position with Chefing Solutions and has thus far been unable to secure permanent employment in the food and hospitality industry. He does not have any active treatment for his right shoulder and avoids taking medication. He continues to perform the exercises recommended by his physiotherapist. He does most of the cooking at home, and has had to adapt to the problems in his shoulder when preparing meals. He avoids vacuuming, sweeping and hanging washing on the line, as these activities cause him shoulder pain, although sometimes due to his height he can do tasks just by moving his right arm from the elbow. When the symptoms worsen, he has to rest. The symptoms are more noticeable in the cold weather. Driving for long periods causes his right shoulder to ache. He has difficulty washing his hair, reaching behind his back when showering, or extending his right arm when dressing or undressing. He is conscious of not aggravating the shoulder by rapid movements. He sleeps semi-upright on several pillows to avoid rolling over onto his right shoulder. His personal relationship with his current partner has been affected.
[14] PCB 26A.
18 At paragraph ten of his second affidavit, he described the level of the pain as “usually more of a niggle, but it can be quite severe”.[15] The pain is lessened by doing prescribed exercises. The problems “usually occur at night” and this has affected his sleep and his “general ability to function”. He often gets an increase in pain from simply reaching out for an object with his right arm. He had to attend Monash Medical Centre last year when his arm (sic) seemed to “pop” when he reached out in the car while travelling as a passenger. His arm was put in a sling for two weeks and he took Panadeine Forte for the pain. He believes he has increased his drinking and smoking levels “as a response to the pain”.
[15] PCB 26C.
19 Prior to his injury, he played social cricket, basketball, soccer and golf on a regular basis. He stated that he played quite competitive levels of basketball right up to the time of his injury. He stated that he has had to give up all of these sports due to his injury and this has had a major impact on his recreational pursuits. He was a good bowler and would have continued playing cricket had it not been for his injury. He can no longer work as a chef, which he found personally very satisfying, and which he did in private clubs in London and Melbourne prior to working at Cabrini Hospital.
20 At the hearing, the plaintiff agreed that his work history was largely managerial, although he had worked as a chef at Santini’s and in the UK before working at Cabrini Hospital. He said that his right shoulder had “popped” once before he had the capsular plication. He agreed that he had had no treatment for his right shoulder since the surgery, and said that tablets make him sick. He said that his pain was more than a niggle, it was always there and its level depended on what he did. If he rolled onto his right side and slept all night like that, the right shoulder was very stiff in the morning and he could barely move it. For this reason he slept propped up on pillows to help him stay comfortable and to keep him from rolling onto his right side. He said that sometimes the right shoulder pain stopped him getting to sleep. He agreed that notwithstanding his right shoulder injury he had driven while unlicensed for some years until late 2010. He agreed that he had some drink driving convictions prior to the right shoulder injury but said he has been drinking a lot more since the injury.
21 He said that prior to the shoulder injury he played social golf once per month with friends. Since the injury he had played twice, but he had less power and accuracy than before. Prior to his injury, he last played basketball in 2003 or 2004, as a filler on Thursday nights in the cricket off-season, but had not tried to play since his injury. He agreed that he last played cricket about 14 months prior to his injury, and said that this was because he did not have the time due to work commitments or commitments to his children. He said that cricket training was on Tuesday and Thursday but the games were played over two Saturdays and players had to be available for both Saturdays. As he sometimes worked on a Saturday, he was unable to play. Once he started work at Cabrini Hospital he just attended training and then filled in on the odd occasion in matches. After his injury, he could no longer bowl in cricket, and he could no longer do hands on work as a chef.
Other lay evidence
22 The plaintiff’s partner, Ms Filomena Montesanti, swore an affidavit on 23 November 2011[16] in which she stated that the plaintiff wakes in pain if he rolls onto his right shoulder. She stated that about twelve to eighteen months ago she was driving and when the plaintiff tried to put his right hand on her knee, she heard a “pop” in the shoulder “which had come out”. He sought treatment at Monash Medical Centre and had his arm in a sling for a few weeks.
Legal principles
[16] PCB 25.
23 In order to make out the serious injury within paragraph (a) of the definition in s 134AB(37) of the Act, the plaintiff must establish that he has suffered a permanent serious impairment or loss of a body function, and that the consequences to him in terms of pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable.[17] The Court must consider the impairment of a body function suffered by the particular applicant, but the test also requires an objective comparison between the impairment suffered by the applicant and the range of possible impairments.[18]
[17] Accident Compensation Act 1985 (Vic) s 134AB(38)(c).
[18] Sabo v George Weston Foods [2009] VSCA 242, [66]; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [42] (Ashley J).
24 On the authorities, decisions as to whether an injury is serious involve elements of fact, degree and value judgment.[19] A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[20] The proper analysis involves establishing that the plaintiff suffered compensable injury after 20 October 1999, establishing what that injury was, determining the consequences which the plaintiff alleges have resulted and determining that those consequences were materially contributed to by the compensable injury and, finally, determining whether those consequences meet the very considerable level in terms of pain and suffering.[21]
[19] Fleming v Hutchinson (1991) 66 ALJR 211.
[20] Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172, [58].
[21] Ibid [80].
25 The ‘pain and suffering consequence’ of an injury encompasses the plaintiff’s experience of pain and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. The intensity and frequency of the pain must be assessed in the light of the plaintiff’s evidence (which may be affected by the Court’s assessment of the plaintiff’s credibility), the treatment received, the medical evidence, and the objective evidence about the disabling effect of pain.[22]
[22] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 [9]-[12]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [45]-[47] (Tate JA).
26 Generally, the endurance of permanent daily pain requiring frequent medication “must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.[23]
[23] Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, [199] (Dodds-Streeton JA).
27 In relation to the experience of pain, the Court must assess the intensity and frequency of pain in the light of the plaintiff's evidence in court and to doctors as to what he says and does about the pain, the doctors' evidence about the extent and intensity of the plaintiff's pain and the objective evidence about the disabling effect of the pain.[24]
[24] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [11]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52.
28 Apart from the capacity for work, assessing the extent to which pain interferes with the ordinary activities of life will generally involve consideration of its effect on the plaintiff's sleep, mobility, capacity for self-care, performance of household and family duties, recreational activities, social activities, sexual activities and enjoyment of life.[25]
[25] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [16]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52.
29 Some weight must be given, in considering that the pain and suffering consequences of the plaintiff's impairment are at least very considerable, to the adverb "very".[26] Each case has to be determined in the light of its own facts.[27]
[26] TAC v Dennis [1998] 1 VR 702, 703 (Callinan J).
[27] Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
30 In determining the application the whole of the evidence is to be considered, and a successful return to work by a stoic worker is not determinative against a worker on the issue of pain and suffering, particularly where the alternative employment found by a worker has not had the effect of reducing his symptoms.[28] What matters is the extent to which an area of work which the plaintiff enjoyed has been closed off to her or him. Overall the court must consider what the plaintiff has lost by virtue of the injury and what has been retained. The significance of what he has lost, which bears upon the seriousness of consequences, may be informed to an extent by what is retained.[29]
[28] Sutton v Laminex Group Pty Ltd [2011] VSCA 52, 79 (Tate JA); Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
[29] Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260, [27]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [95].
31 I am entitled to take into account that the plaintiff is 42 years old and that, compared with other persons with impairments of the shoulder, he will experience these pain and suffering consequences for a slightly longer period of time.[30]
Findings and reasons
[30] Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [44] (Ashley J).
32 I found the plaintiff to be a straightforward witness. I accept his evidence as to the pain and restrictions suffered as a result of the permanent impairment of the function of the right shoulder. He has some pain and stiffness in the right shoulder and restrictions in the range of movement of the shoulder and cannot lift heavy weights or do repetitive overhead work. The medical evidence is to the effects that these symptoms are likely to be permanent. He has had to sleep in a different position to avoid rolling onto the right shoulder. Even ordinary movements of the right arm can cause him increased pain. The right shoulder is at risk of dislocating, and has done so once since he had the surgery. He takes care to watch his movements to avoid exacerbations. He was trained as a chef, and worked as a chef at Cabrini Hospital, but can no longer do that kind of work, which he enjoyed. He has had to give up his recreational and competitive sporting pursuits (soccer, basketball, golf and cricket), which he also enjoyed.
33 On the other hand, I must also look at what has been retained. The plaintiff appeared to have had pre-existing underlying multidirectional vulnerability to dislocation, and since the injury and the surgery he continues to have some ongoing vulnerability to dislocation. The surgery was uncomplicated and he has had no treatment since 2007 and takes no medication. Whilst I acknowledge there is a loss of enjoyment to the plaintiff in not being able to work as a hands on chef, the plaintiff’s work history over a number of years has mainly been on the managerial side of the hospitality industry, and in teaching commercial cookery. His work in the past two years has been administrative, and he has completed a Master of Business Administration, which suggests where his interests may lie. I note that he does most of the cooking at home and has managed to adapt what he does to cater for his restricted range of motion and other limitations. Whilst I acknowledge that some times his sleep may be disturbed if he rolls onto his right shoulder, his oral evidence was to the effect that sleeping on the right shoulder all night will render the right shoulder stiff in the morning. This suggests that there are at least some occasions when he can sleep all night on the right shoulder without being woken by pain. I accept that he can no longer bowl and play competitive cricket, but I note that he did not play in the season prior to his injury because of his work and personal commitments. I accept that he enjoyed playing basketball weekly as a filler up to 2003 and 2004 and that he has not tried to play since his right shoulder injury. His oral evidence in relation to golf was not that he cannot play at all due to his right shoulder limitations (he has played twice since his injury), but rather that he cannot play as well since his injury.
34 I accept that there is restricted range of movement in the plaintiff’s right shoulder, and that he needs to modify his activities and avoid exacerbations of pain. I accept that he has pain in the right shoulder, and that there is some interference with his sleep. There is also some interference with some of the activities of daily living and with his personal relationship with his partner. I accept that he has had to give up playing cricket and basketball, and that he can play golf less well. However, in all the circumstances, having regard to all of the evidence before me, I consider that the pain and suffering consequences of the right shoulder impairment, while significant, are not “very considerable” or more than significant or marked when judged by comparison with other cases in the range of possible impairments or losses of a body function.
Conclusion
35 It follows from the above that the plaintiff’s application is dismissed.
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