Papoulakos v Polizos (Trading as North Fitzroy Poultry)
[2012] VCC 1094
•24 August 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-05399
| GEORGE PAPOULAKOS | Plaintiff |
| v | |
| CON and HELEN POLIZOS (Trading as ‘NORTH FITZROY POULTRY’) (Registered Business Name No. 1190445N) | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 August 2012 | |
DATE OF JUDGMENT: | 24 August 2012 | |
CASE MAY BE CITED AS: | Papoulakos v Polizos (Trading as North Fitzroy Poultry) | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1094 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Non-dominant left shoulder girdle injury – leave sought to bring proceedings for pain and suffering damages only – “range” case
LEGISLATION CITED – Accident Compensation Act 1985, s134AB(38)(a) and (b)
CASES CITED – Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Church v Echuca Regional Health (2008) 20 VR 566; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR; Sabo v George Weston Foods [2009] VSCA 242
JUDGMENT – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J A Riordan | Zaparas Lawyers |
| For the Defendant | Mr N B Chamings | Thomson Lawyers |
HIS HONOUR:
Introduction
1 By way of Originating Motion dated 11 November 2011, George Papoulakos (“the plaintiff”) seeks leave, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”), to bring common law proceedings to recover damages for injury to his left shoulder suffered during the course of his employment with Con and Helen Polizos, trading as North Fitzroy Poultry (“the defendant”) on or about 24 July 2002 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” only within the meaning of s134AB(37) of the Act.
3 The plaintiff gave evidence and was cross-examined. Both parties tendered various documents.[1]
[1]See Annexure “A”
Relevant Legal Principles
4 The Court may not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]
[2]See s134AB(19)(a) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act, which reads:
“serious injury means─
(a)permanent serious impairment or loss of a body function … .”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the left shoulder girdle.[3]
[3]See Transcript (“T”) 3, L24-30
7 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)“the injury” was suffered in the course of or due to the nature of his employment with the defendant on or after 20 October 1999;[4]
(b)“the injury”, with its resulting impairment, must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[5]
(c)“the consequences” to the plaintiff of “the injury” in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … [can be] fairly described as being more than significant or marked, and as being at least very considerable”.[6]
The test for “serious” is sometimes referred to as the “narrative test”.
[4]See s134AB(1) of the Act and Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622 at [11]
[5]See Barwon Spinners (op cit) at [33]
[6]See s134AB(38)(b) and (c) of the Act
8 In determining the application, the Court:
(a)must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[7]
(b)must make the assessment of “serious injury” at the time the application is heard;[8]
(c)must give reasons which are as extensive and complete as the Court would give on the trial of an action, and in so doing, disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application;[9]
(d)notes that it has been asserted that the question of whether an injury satisfies the narrative test is largely a question of impression or value judgment.[10]
[7]See s134AB(38)(h) of the Act
[8]See s134AB(38)(j) of the Act
[9]See s134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566 at [89]–[92]
[10]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 and 628; Sabo v George Weston Foods [2009] VSCA 242 at [67]
The Issues
9 Counsel for the defendant informed the Court that there was no issue that the plaintiff had suffered a compensable injury causing permanent impairment and some consequences. The issue arose as to whether or not the consequences of any impairment satisfied the narrative test. Essentially, it was that type of case referred to as a “range case”.
The Evidence of the Plaintiff
10 The plaintiff gave evidence that he came to Australia in February 1971 and that he had spent his time “working” rather than going to school. He considered that he could not give evidence in English as there is “a lot that I don’t understand”.
11 He also gave evidence that the contents of his affidavits sworn 6 July 2011[11] and 9 August 2012[12] were “true and correct”.[13]
[11]See Exhibit 1 at page 15 PCB
[12]See Exhibit 1 at page 20.1 PCB
[13]T 12, L10
12 By way of his first affidavit, the plaintiff gave the following evidence:
· He was born in Greece on 18 August 1947, where he attended school for six years, after which he helped his father on the family farm. He performed national service for two years before returning to the farm.
· He came to Australia with his wife on 12 February 1971 and has two adult children.
· Since coming to Australia, he has had the following employment history:
– within a week of arriving in Australia, he commenced employment with General Motors Holden, working on the production line, which he did for about two years;
– he then worked for Dunlop Batteries in Moorabbin for about two years;
– he then purchased and ran a take-away food business in Greensborough with a partner for about eighteen months;
– he then, with three partners, ran a chicken processing business for three years;
– he then worked for Eatmore Poultry, operating a cutting machine and doing deliveries for about ten years.
· In about 1990, he commenced employment with the defendant. The defendant was initially owned by his son-in-law and daughter. In 1993, his son-in-law and daughter bought a fifty per cent interest in 121 Scotchmer Street, North Fitzroy and the plaintiff and his wife bought the other half, and thereafter, the business of the defendant was carried out at that address. During that time, the defendant paid rent of $500 per week and the plaintiff and his wife received half of that amount.
· In 1998, his son-in-law and daughter went to live in Greece and sold the business of the defendant and their share in Scotchmer Street, North Fitzroy to Harry, the son of the defendant.
· In 1982 when employed by Eatmore Poultry, the plaintiff had a fall and fractured his left thumb and was off work for about eight weeks. He received about $24,000 by way of compensation.
· When he commenced employment with the defendant, he was working part-time doing process work and helping out when needed and giving advice, for which he was paid $100 per week. When the defendant’s business started to improve in about 2001, he worked more hours and his son paid the plaintiff $400 per week. The plaintiff described his work during this time as a “general maintenance man”.
· In or about March 2002, he caught his right hand in a skinning machine, causing him to undergo some form of operation at St Vincent’s Hospital. As a result of this, he has continued to have some discomfort in a scar at the base of his right palm and weakness in his right grip.
· He describes the circumstances of “the injury” in the following way:
“On the 24th July, 2002 as part of my work duties for the employer I had to change a light bulb in the roof of the freezer. I used an eight foot aluminium step ladder which was the only step ladder in the employer[’]s business. The roof of the freezer was about 3.5 metres above the floor of the freezer. I was standing on or about the third top rung of the step ladder to change the light bulb using a screw driver to undo a side screw on the cover for such light bulb. As I moved my body to position the screwdriver the step ladder fell to the side and I fell to the other side landing on my left shoulder.”[14]
[14]See Exhibit 1 at page 17 PCB
· Following his fall, he was aware of a lot of pain in his left shoulder, extending into his neck. A co-worker took him to a local doctor, who prepared a sling, and later that evening, the plaintiff attended his local doctor, Dr Gouras, who prescribed painkillers.
· His left shoulder pain improved a little and he wore the sling for about three months. When he went back to work with the sling there was not much he could do and he only worked intermittently because of his restrictions.
· Because of ongoing left shoulder pain extending to his neck and weakness in his left arm, Dr Gouras arranged for him to undergo various radiological studies and referred him to the orthopaedic surgeon, Mr Hooper, in late 2002, and Mr Lyons on 18 February 2003.
· Mr Hooper advised him that he did not think surgery would be of any assistance and Mr Lyons gave him an injection into the left upper chest, which improved his discomfort for about three months before the pain resumed.
· As at 6 July 2011, the plaintiff continued to see Dr Gouras at least once a month and was prescribed medication. At that time, he was taking Panadeine Forte for pain in the left shoulder and at night to sleep, and two to four Panadol during the day for pain relief. He also took Naprosyn as an anti-inflammatory.
· His worst pain is in the area at the end of the collarbone near the neck where there is a bony lump. The pain spreads to his left shoulder and is worse if he turns his neck to the right or raises his left arm above head height.
· When his left arm is hanging free, he has an ache at the end of the collarbone which is there all the time and made worse by changes in the weather.
· Any physical force of the left arm, such as pushing, pulling or lifting increases the discomfort in the shoulder and collarbone area. Pushing is the worst and he cannot hold more than two or three kilograms in weight in his left arm above waist height. Even clenching his fist and moving the left arm increases the pain in the left quad bone and shoulder area.
· When driving his car, he uses mainly the force of his right hand to turn the steering wheel.
· The pain in his left collarbone and shoulder usually gets worse during the day.
· He has a lot of difficulty getting to sleep because of discomfort and he tries to lie on his right side, using two pillows to support his neck. If his head is tilted too much to the right, he gets increased pain in the collarbone. When he rolls onto his left side, he also gets increased pain in the left shoulder itself and numbness in his left arm. He wakes several times every night.
· He usually gets up at 3.00 am to go to work at the defendant’s premises and to be there when the chicken deliveries arrive. At that time, his left shoulder is stiff and he has to be careful with movements and in particular, when stretching to put on clothes, such as socks, there is increased discomfort in the shoulder and collarbone area.
· When the drivers unload the chickens from trucks they use a forklift and he helps set up the display windows. His son and other workers arrive at about 5.00 am to 6.00 am to make up orders and pack, and he mainly supervises.
· In the late 1990s, he painted his house and tiled the bathroom, toilet and kitchen but could not do this work now. In 2005, he had to pay someone to repaint the house because of his left shoulder and collarbone pain.
· He relies on his neighbour to clean the gutters as he cannot do this now because of the raising and stretching of his left arm.
· He is frustrated that he cannot help in the defendant’s business as he used to, as even such things like opening a box causes discomfort.
13 By way of his second affidavit, the plaintiff gave the following further evidence:
· He forgot to mention in his first affidavit that he was referred by Dr Gouras to a rheumatologist, Dr L Clemens, in 2004, who arranged for a CT scan of his left sternoclavicular joint on 18 August 2004. Dr Clements told him that he had a break in the bone but there was nothing he could do.
· He also overlooked to mention that on 2 August 2008,[15] he was involved in a transport accident where he hurt his back and since then has had occasional back discomfort.
[15]Other records would suggest that this should be 2 April 2008
· Dr Gouras arranged for him to undergo further ultrasound x-rays of his cervical spine and left clavicle on 1 September 2010 and referred him to the rheumatologist, Dr A Stockman, in December 2010.
· He has continued to see Dr Gouras about every month, and in early 2011, Dr Gouras referred him to the orthopaedic surgeon, Mr Justin Hunt, who initially saw him on 1 March 2011.
· Mr Hunt arranged for him to undergo bilateral MRI scans of the acromioclavicular joints, a CT scan of both sternoclavicular joints and an MRI scan of his left shoulder on 5 April 2011.
· When seen by Mr Hunt on 7 April 2011, he believes he was told that he would not be assisted by an operation.
· Dr Gouras prescribes medication and he currently takes pain-relieving medication consisting of Voltaren and Panadeine Forte in the morning and at night and as needed during the day for his left collarbone and shoulder pain. He also takes sleeping tablets once or twice a week and uses a cream every night on the left collarbone and shoulder area.
· He describes his ongoing difficulties in the following terms:
“6My worst pain is still in my collarbone. There is a lump there. The pain spreads into my left shoulder. I am aware of it all the time. It is worse with prolonged or forceful movement of my left arm or if I breathe deeply and particularly if I cough or sneeze. I also get worse pain if I twist my upper body to the right or to the left. If I turn my head to the right the pain in the collarbone is worse spreading into both the left shoulder and neck.
7I still go to the Defendant’s business five or six days a week and open the business for the chicken deliveries. I have known many of the delivery drivers for over twenty years. They do the lifting. After the deliveries are made I just help out and supervise where needed. I usually do hosing and a little sweeping and look after the office area answering phones when no one is there. I enjoy the company at work. I have always been in the chicken business. I feel I can help my son and advise him.
8I find it hard to get to sleep at night because of pain in the left shoulder and collarbone. If I lie on the left shoulder I get increased pain in the area. I wake several times a night because of this. When I wake like this I rub the shoulder and collarbone and sometimes use the cream. Also at night I seem to notice pain spreading down my left arm and a numbness in my left forearm and hand. I find I can get some relief from this symptom if I hit and rub the area of my left lower biceps.
… .”[16]
[16]See Exhibit 1 at pages 20.2 – 20.3 PCB
14 Under cross-examination, the plaintiff gave the following pertinent evidence:
· He will turn sixty-five in August 2012.
· He is dominantly right handed.
· He underwent about two months of physiotherapy, which made the movements of his shoulder “better”, and believes that such physiotherapy was completed by November 2002.
· Other than the initial two months of physiotherapy, he has had no further physiotherapy and no doctor has recommended any operation.
· Prior to the subject injury on 24 July 2002, he had suffered an injury to his right hand and to his left thumb.
· When it was put to him that he had attended Dr Gouras in October 1998, November 1998, 13 January 1999, 28 January 1999, 2 July 1999, 10 February 2001, 24 May 2001 and 19 January 2002 in relation to complaints of low-back pain, for which he received medication such as Indocid and Digesic, the plaintiff denied that he had such complaints, and asserted that Dr Gouras must have put down the “wrong dates”.[17]
[17]T 19, L15
· He did assert that he had some low-back pain after the fall on 24 July 2002.
· He accepted that prior to the fall on 24 July 2002, he was taking some pain medication, such as Panadol and “things like that” for headaches.
· He travelled to China in the first half of 2007, which was for business purposes in relation to the purchase of a fridge.
· He was involved in a motor vehicle accident on 2 April 2008, after which he had a little bit of low-back pain, for which he took Naprosyn and Panadeine Forte.
· After the event on 24 July 2002, he received worker’s compensation for a while, then went back on light duties a few hours per day and gradually increased his hours.
· When asked what his limitations were because of his left shoulder injury, he stated:
A: “My shoulder won’t, my arm will not go up very high and I have pain in the chest.
Q: So you can never elevate your arm above shoulder level?---
A: Yes, to there. When I put it up high, it’s sore, very sore.
…
Q: How do you cope with your activities of daily living like dressing and eating?---
A: I can cope, but it’s hard. Taking this jacket off is difficult, but I do it. Putting socks on is difficult.”[18]
[18]T 23, L30 – T 24, L8
· He lives in a house at St Kilda and receives rent in relation to the property situated at 119 Scotchmer Street, North Fitzroy (where the business was originally situated).
· He accepted that the taxation returns for the year ended 2000 declared earnings of $18,000, which was referred to as director’s fees, whereas in 2003 he was described as shop manager, earning $18,000 per annum. Thereafter, he has been earning $17,940 through to 2010.
· He continues to go to the defendant’s premises five or six days a week and open the premises for the deliveries of chickens, and thereafter does any “light things that need to be done”. He does as much as he can.
15 The plaintiff was shown DVD recordings taken on 28 July 2012 and 4 August 2012. Such DVD material showed the plaintiff driving the defendant’s van, carrying bags of material with his left arm, bringing his left arm to shoulder height and placing his hand on his head, working in the retail outlet at the defendant’s premises using his left arm to reach and pick up chicken pieces from the display areas, and also performing shopping with a woman, during which activity he again carried a bag or bags in his left hand.
16 Under further cross-examination, the plaintiff gave the following pertinent evidence:
· He serves in the shop as required and he accepted that he does that “frequently”.
· He starts at the defendant’s premises at 4.00 am and drives a manual Hyundai van marked with ‘Flying Poultry’ from his place of residence in St Kilda to the defendant’s premises in Reservoir. When queried as to what he actually does in the factory, the plaintiff stated that he works “a little bit in the back” – he might get a tray of chicken wings for instance and bring them into the shop, or chicken sausages, “whatever is required, I bring into the shop”.
· He finishes at about 5.00 pm, sometimes 6.00 pm, although that is not every day. In particular, the plaintiff gave the following evidence:
Q: “Well, you start at 4.00 and knock [off] at 6.00. You do that five or six days a week for $345 a week?---
A: Well, he’s my son, he’s got paperwork, I stay there, I don’t want anyone to hurt, someone might come in and bash him, he’s my son.
Q: All right, I understand that. In any event, you put whatever time is necessary into helping your son in his business. Is that correct?---
A: Yes.
Q: Your left arm doesn’t stop you from doing that?---
A: The hours that I’m there I don’t work all day, there are times when I am sitting in the chair and just relaxing. After 3 o’clock you’re lucky to get four or five customers to come into the shop anyway. I am usually sitting in the office just resting.
Q: So you’re in the shop every day?---
A: Every day.”[19]
[19]T 30, L2-L15
· He gave this evidence as to what activities he performed for the defendant prior to the injury:
“Before that, I used to do other things. For instance, I used to cut up chickens on the machines. I can’t do that now. I used to bone chickens. I can’t do that now.”[20]
[20]T 30, L31 – T 31, L2
17 In re-examination, the plaintiff gave further evidence as to his state of health prior to the injury. In particular, the plaintiff gave the following evidence:
Q:“In terms of the work that’s done in the factory, that you used to do, I think you’ve told His Honour that there are a number of things you can’t do?---
A: Yes.
Q: Has that been the case ever since your fall?----
A:From the time that I hurt my shoulder, I have not been able to do a lot of things, yes.
Q: You say ‘a lot of things’. What are the main things you can’t do?---
A:For instance, I can’t cut up the chickens and my son has to pay someone else to cut up the chickens now. If I was able to do that, he would give me more money. I can’t lift anything heavy. The baskets which are full of chickens, I can’t lift them now. I can’t bone the chickens, remove the bones, I can only do the light things.
Q: Did you do those things you have mentioned before your fall?---
A: Before the fall of course, I did them.
Q: You were there for 10 years, weren’t you?---
A: Yes.
Q: What work did you do then during those 10 years?---
A:Cutting up the chickens, I’d wrap them, sorry, then put them in baskets into the fridges. Those baskets that I used to carry other workers take them now.”[21]
[21]T 33, L12 – T 34, L1
· He has this pain which he worries about because of what is going to happen when he gets older.
· When he moves his arm he has pain in the shoulder which is like “a knife is going in here”.
· In particular, when asked about sleeping, the plaintiff stated:
“I have problems, yes, because even when I sleep on the right side I need my head to be fairly straight because it hurts on the left side if it’s not.”[22]
[22]T 34, L19-221
The Medical Evidence
18 The plaintiff has undergone the following radiological studies:
(a) Prior to the injury, an ultrasound of the neck on 21 September 2000[23] which revealed no soft-tissue pathology.
[23]See Exhibit 3, page 49 PCB
(b) An ultrasound of the left shoulder on 19 September 2002.[24] The ultrasound reported that in the mid fibres of the supraspinatus tendon there was a small longstanding tear which is probably just of full thickness and was about 5 millimetres in cross section. Otherwise, the supraspinatus tendon and other tendons were normal. The longhead of the biceps tendon sits in a shallow groove surrounded by an inflamed sheath which was consistent with moderate tenosynovitis.
[24]See Exhibit 3, page 50 PCB
(c) An x-ray of the lumbar spine on 19 November 2002[25] which revealed mild degenerative changes involving the L5-S1 posterior facet joints.
[25]See Exhibit 3 at page 51 PCB
(d) An x-ray of the left clavicle dated 3 December 2002[26] which is reported as revealing a comminuted fracture of the medial aspect of the clavicle approximately 10 millimetres distal to the sternoclavicular joint. It was considered that the articular margin was not thought to be involved and the fracture only to be mildly displaced.
[26]See Exhibit 3 at page 52 PCB
(e) An ultrasound of the left upper sternum dated 20 October 2003.[27] The report of the ultrasound reads:
[27]See Exhibit 5 at page 35a DCB
“The superior margin of the clavicle is smooth. There is minor bony irregularity of the left sterno-clavicular joint but a similar appearance is seen on the right side. There was no capsular thickening or hyperenia. There was no soft tissue mass.
The supraspinatus, the infraspinatus and the subscapularis tendons were also evaluated and appeared normal.
There was minor focal thickening of the long head of the biceps at the top of the bicipital groove but it was not specifically tender on compression of this point.
CONCLUSION:
No significant abnormality is seen within the left sterno-clavicular joint.”
(f) CT scan of the left sternoclavicular joint dated 18 August 2004.[28] The scan records the following findings:
[28]See Exhibit 3 at page 53 PCB
“Reconstructed axial and coronal scans through the sternoclavicular joints were performed.
Old healed medial left clavicular fracture at 3.5cms from the sternoclavicular joint is noted.
The medial end of the left clavicle demonstrates erosions with concomitant widening of the left sternoclavicular joint and mild increase in periarticular soft tissue. No stranding of the overlying subcutaneous fat. No significant erosion of the sternal side of the left sternoclavicular joint.
Minor degenerative change in the right sternoclavicular joint.
The first costochondral junction is normal bilaterally.
CONCLUSION:
Erosions of the medial end of the left clavicle with inflammatory synovitis in the left sternoclavicular joint. An erosive inflammatory arthropathy is favoured, but early infective arthritis may give a similar appearance, but it is unusual in that there are no erosions on the sternal side of the joint.”
(g) Plain x-ray of the cervical spine and left clavicle, together with an ultrasound of the left shoulder on 1 September 2010.[29] The x-ray of the left clavicle revealed no fracture or disc location or subluxation. The ultrasound of the left shoulder revealed:
[29]See Exhibit 3 at page 54 PCB
“Although there is no definite effusion evident within the subacromial bursa it does appear thickened consistent with some inflammatory change. There is some pitting of the surface of the greater tuberosity and calcifications at the supraspinatus insertion into the greater tuberosity consistent with chronic enthesopathic change and tendinopathy. There is a hypoechoic area about this consistent with a possible intrasubstance or partial tear on the deep aspect 7 mm wide with only 2 mm in thickness.
The rotator cuff appears otherwise intact. The acromioclavicular joint appears normal.”
(h) MRI scan of the acromioclavicular joints (bilaterally); CT scan of the sternoclavicular joints and an MRI scan of the left shoulder, all undertaken on 5 April 2011.[30] The report of such studies reads:
[30]See Exhibit 3 at page 55-56 PCB
“MRI AC JOINTS (BILATERALLY)
CLINICAL NOTES
Left shoulder pain and left sternoclavicular pain.
REPORT
AC joints on both sides are enlocated and moderately degenerative with joint space narrowing, subchondral bone irregularity and small marginal osteophytes. No fracture or bony destructive lesion identified.
CT STETNOCLAVICULAR JOINTS
None contrast scans were performed of sternoclavicular joints bilaterally. Sternoclavicular joints on both sides are enlocated and moderately degenerate and subchondral cysts, marginal osteophytes and joint space narrowing. In the adjacent 1ST costal cartilages, there are sagittal clefts raising the possibility of previous costal cartilage injury/fracture. These are undisplaced. The costal cartilages are partially ossified. No bony destructive lesion or acute fracture demonstrated, Manubrium intact.
CONCLUSION
1.Moderate osteoarthritis of sterno-clavicular joints bilaterally.
2.Sagittally oriented clefts through the 1ST costal cartilages bilaterally suggesting previous undisplaced, non-united injury/fracture.
3.Moderate osteoarthritis of AC joints bilaterally.
MRI LEFT SHOULDER
Images are degraded by motion artefact due to the patient’s inability to remain still. The long head of biceps tendon is intact and enlocated within the bicipital groove. Supraspinatus tendon mildly increased in signal consistent with mild tendonosis. No discrete tear demonstrated. The infraspinatus, subscapularis and teres minor tendons are intact. No significant thickening of subacromial bursar.
No effusion or chondral defect in the shoulder joint. Glenohumeral ligaments are intact and not thickened. Glenoid labrum intact. Biceps anchor intact.
AC joint is enlocated and mild to moderate degeneration within it characterised by small subchondral cysts and small marginal osteophytes. Marginal osteophytes of the acromion indents the musculotendinous junction of supraspinatus. Coracoacromial and coracoclavicular ligaments are intact. No muscle wasting around the shoulder joint. Mild fibrocystic changes at the superolateral humeral head suggests chronic internal impingement.
CONCLUSION
1.Mild-Moderate supraspinatus tendonosis. No rotator cuff demonstrated.
2.Mild-moderate osteoarthritis of AC joint with osteophytes of the acromion indenting the musculotendinous junction of supraspinatus.
3.Mild fibrocystic changes at supolateral humeral head suggests chronic internal impingement.”
19 The plaintiff relies on reports from his general practitioner, Dr Arthur Gouras, dated 7 September 2004, 10 September 2010, 17 March 2012 and 8 August 2012.[31] Dr Gouras has been the treating general practitioner of the plaintiff for over the last twenty-five years.
[31]See Exhibit 2 at pages 27-48 PCB
20 The plaintiff presented to Dr Gouras on 24 July 2002 complaining that he suffered head injuries, neck injuries, left shoulder and arm injuries, chest and low-back injuries of falling off a ladder onto a concrete floor at his place of work. Dr Gouras obtained a history that he had been taken to a nearby medical clinic and x-rays undertaken with medication prescribed and his left arm put in a sling.
21 Clinical examination by Dr Gouras revealed that the plaintiff had guarded neck, left shoulder and low-back movements. In particular, his occipital and cervical regions were tender, with neck movements restricted. Furthermore, his left shoulder joint was bruised and immobile because of pain and his left sternoclavicular area was tender, bruised and swollen. There was also tenderness elicited over his lumbosacral spine with low-back movements restricted.
22 Dr Gouras prescribed medication, rest and physiotherapy and certified the plaintiff unfit for work.
23 Dr Gouras notes that he had treated the plaintiff in 1998 for a fracture of the right wrist, in 1990 for back pain and symptoms of anxiety for a brief period. Furthermore, the plaintiff suffers from recurrent symptoms of irritable bowel syndrome.
24 Dr Gouras notes that over the following months the plaintiff was making a slow recovery, although his neck pain had persisted and in particular, his left shoulder pain had been present all the time and its mobility had been significantly reduced. Over the ensuing months, he arranged for various radiological studies.[32]
[32]See Exhibit 3 generally
25 Dr Gouras referred the plaintiff to the orthopaedic surgeon, Mr Jonathan Hooper, who seemingly initially saw the plaintiff on or about 16 November 2002.[33] At that time, the plaintiff was complaining of pain in moving his left shoulder and pain when sleeping. Examination revealed that his clavicle was prominent immediately near the fracture and that he had a painful arc of motion in his shoulder. Mr Hooper noted that the ultrasound revealed that he had a cuff tear.
[33]See reports of Mr Hooper dated 16 November 2002 and 26 November 2002. See Exhibit C at pages 38 and 39a DCB
26 Mr Hooper treated the plaintiff initially with an injection of local anaesthetic and steroids, but noted that he had a fairly good range of movement in the shoulder and was hopeful that symptoms may settle down with conservative measures.
27 When later seen on 26 November 2002, Mr Hooper noted that the injection into the shoulder had not helped him greatly but although complaining of discomfort in the shoulder, the range of motion was improving. Mr Hooper advised the plaintiff to continue his exercise program and considered that although he “may be left with some discomfort in the shoulder, he should be able to do most of the things he wants to do”. Mr Hooper did note that if symptoms did not settle he may need to athroscope the shoulder.
28 Dr Gouras also referred the plaintiff to the orthopaedic surgeon, Mr Francis Lyons, seemingly on 19 February 2003.[34] At the time of that examination, the plaintiff gave a history that he had moderately severe pain at the time of his fall but there had been a gradual improvement since then but there was concern about persisting discomfort at the medial end of the clavicle and also in the shoulder itself.
[34]See Exhibit C at page 40a of the DCB
29 Examination revealed a swelling and slight tenderness at the medial end of the clavicle consistent with a clavicle fracture that was evident on the earlier x‑ray. Mr Lyons noted that new x-rays suggested that the fracture had gone on to unite satisfactorily and considered that the discomfort at that stage was fairly “typical”. He anticipated it would gradually resolve over time.
30 Examination of the shoulder joint revealed some findings that would suggest mild post-traumatic capsulitis with slight restriction of all shoulder movements with discomfort at the extremes. Mr Lyons considered this to be a “very common scenario” following a painful shoulder girdle injury.
31 Mr Lyons also noted that an ultrasound in September 2002 was suggestive of a relatively small rotator cuff tear but considered that regardless of whether there was a tear or not, the clinical picture was not strongly in keeping with having a rotator cuff impingement problem.
32 Mr Lyons saw no strong case for arthroscopic intervention at that stage and reassured the plaintiff that he was likely to see further gradual improvement over a period of some months.
33 As at September 2010, Dr Gouras noted that he had been treating the plaintiff over the past eight years on a regular basis and more so during the first year following the onset of his left shoulder injury. He notes that during this period, his main presenting symptoms have been:
· “Neck pain and pain over his left shoulder area.
· Frequent aggravations of his neck pain accompanied by stiffness in this region and restriction of his neck movements.
· Rather persisting left shoulder pain aggravated spontaneously and more often by lifting or by repetitive lifting of his left arm.
· Pain in his clavicular joint localised mostly over the sternoclavicular joint and accompanied by recurrent swelling.
· Local tenderness in his sternoclavicular and supraclavicular region extending up along his left neck area restricting his neck symptoms. The above symptoms are affected by lifting, pulling or rushing and repeated movements of his left shoulder and arm.
· Lower back pain which has persisted since the accident and interferes with the patient’s standing up long, bending and lifting. His lower back symptoms have stabilized over the last 4-5 years and only on occasions give rise to more pain, when the patient needs painkillers.”[35]
[35]See Exhibit 2 at page 35 PCB
34 Dr Gouras notes that all these symptoms have persisted and that his overall condition has stabilised to a suitable degree apart from his symptoms with his neck, his left shoulder and left upper chest area, which still persist and have responded only symptomatically to treatment.
35 In his report dated 17 March 2012, Dr Gouras notes that the plaintiff had continued to present with similar symptoms as previously detailed and that although he continued performing light duties which did not involve repetitive work, holding or lifting weights or standing up long, he found it difficult to cope with such work because of frequent aggravations of his symptoms and persisting pain in the injured areas. In particular, Dr Gouras states:
“During the past eighteen months the patient has been complaining of pain in his left shoulder which is rather continuous and which very frequently becomes more severe and effects [sic] the mobility of the patient’s left shoulder joint. His left sterno clavicular area is one of the most troubling ones. It is always painful and on several occasions it becomes slightly swollen and locally tender. The pain in this area is located mainly over the medial part of his clavicle and over the upper left area of his sternum. … .”[36]
[36]See Exhibit 2 at page 38 PCB
36 In his last report dated 8 August 2012, Dr Gouras confirms his earlier opinions and considers that the prognosis of the plaintiff for full recovery is very guarded and that he will need ongoing treatment for symptomatic relief of pain and will experience restricted mobility and frequent aggravations of his pain.
37 Dr Gouras referred the plaintiff to the orthopaedic surgeon, Mr Justin Hunt, who initially consulted with the plaintiff on 1 March 2011.[37] At that examination, the plaintiff complained of experiencing pain in his left shoulder region, causing him to be restricted in his employment duties.
[37]See reports of Mr Hunt dated 27 April 2011 and 29 December 2011 – Exhibit 2 at pages 39-46 and 48.1-48.2 PCB
38 Examination at that time revealed tenderness over the left sternoclavicular joint, which was more prominent than the right side, and crepitus on movement of his left arm in that region. Examination of the left shoulder revealed tenderness over the lateral tip of the acromion and range of motion testing was restricted in forward flexion and abduction to 120 degrees compared to 140 degrees on the contralateral side. Muscle power testing revealed 4 out of 5 power of the supraspinatus and infraspinatus and subscapularis. He had a positive impingement test and cross body adduction test for sternoclavicular joint or acromioclavicular irritability reproduced his sternoclavicular joint pain symptoms.
39 Mr Hunt arranged for the plaintiff to undergo an x-ray of his left shoulder to assess his acromial morphology and acromioclavicular joint, an MRI scan of his left shoulder to assess the rotator cuff integrity and a CT scan of his sternoclavicular joints given the significant proportion of symptoms emanating from the left sternoclavicular joint. These studies were undertaken on 5 April 2011.[38]
[38]Refer to Exhibit 3 at pages 55-56 PCB
40 On review on 27 April 2011, Mr Hunt confirmed that the MRI and CT scans confirmed the presence of osteoarthritis of the sternoclavicular joints bilaterally. There was also evidence of osteoarthritis of the clavicular joint and evidence of subacromial bursitis and a Type III acromion which had a hooked morphology with an associated subacromial bursitis. The rotator cuff was intact.
41 Mr Hunt noted that the plaintiff also clearly described pain over the deltoid region and a painful arc as well as pain on sleeping on the left side at night. Symptoms were also associated with impingement syndrome. Mr Hunt notes that his explanation of the symptoms and his pathology fitted very well.
42 Mr Hunt diagnosed the plaintiff to be suffering from left shoulder impingement syndrome (subacromial bursitis and rotator cuff tendonitis) with the clinical presentation matching the imaging findings. Furthermore, he was suffering from symptomatic post-traumatic osteoarthritis with a clinical presentation matching the imaging findings.
43 The left shoulder pain suffered by the plaintiff was due to a dual pathology involving the left rotator cuff, as well as the left sternoclavicular joint which has caused a restriction in his employment activities and has impacted on his domestic and lifestyle activities, in that heavy lifting and physically demanding household activities give rise to increased pain.
44 Mr Hunt considered that the left shoulder impairment would continue into the foreseeable future. Mr Hunt noted that the plaintiff was coping at the time that he last saw him and did not consider that operative intervention was appropriate at that time.
Medico-Legal Reports
45 The solicitors for the plaintiff arranged for the plaintiff to be medico-legally examined by the vascular and general surgeon, Mr Charles Flanc, on the following occasions:
(a) 30 June 2010[39]
[39]See report of same date at Exhibit 4, page 57 PCB
(b) 30 July 2012.[40]
Mr Flanc also supplied a supplementary report dated 8 August 2012.[41]
[40]See report dated 31 July 2012 at Exhibit 4, page 64 PCB
[41]See Exhibit 4 at page 71 PCB
46 When initially seen by Mr Flanc, the plaintiff complained of the following symptoms:
(a) Pain over the outer part of the left shoulder when he elevated above the horizontal level and particularly when he extends it backwards (there being no pain in other directions);
(b) Pain over the medial end of the clavicle and the associated sternoclavicular joint with some pain at rest but aggravated with movement of the left shoulder;
(c) Elevation of the left arm above the horizontal level, aggravated pain in his shoulder and also he has pain lying on his left shoulder.
47 He further gave a history that he was able to drive a car, able to go shopping but has pain on lifting anything heavy.
48 Examination at that time revealed the left sternoclavicular joint to be slightly more prominent than the right sternoclavicular joint and there was tenderness over the medial end of the clavicle and tenderness extended to the inferior surface of the clavicle. In the left shoulder there was slight tenderness over the subacromial joint with some restriction of movement.
49 On the basis of the history and clinical examination, Mr Flanc was of the opinion that the plaintiff had suffered injuries to his left sternoclavicular joint and left shoulder, but considered diagnosis would be assisted by further scanning. He did consider that he was unfit for heavy work, although he could continue to work full-time on modified duties and that could continue into the foreseeable future.
50 At the time of his second examination (30 July 2012), the plaintiff complained of:
(a) Continuing pain in the left shoulder when he elevates his arm above the level of the shoulder;
(b) Discomfort and tenderness in the sternoclavicular joint with pain over that joint being more severe when he abducts his arm and moves it backwards. This pain is also aggravated by heavy lifting;
(c) Pain on the left side of the lowest part of the neck adjacent to the sternoclavicular joint.
51 At this examination, Mr Flanc had the further investigations arranged by Mr Hunt on 5 April 2011, consisting of the MRI scan of the acromioclavicular joints, a CT scan of the sternoclavicular joints and an MRI scan of the left shoulder.
52 Mr Flanc considered that, on the balance of probabilities, the plaintiff had suffered a soft-tissue injury causing damage to the rotator cuff and also an injury to the acromioclavicular joint. Furthermore, on the balance of probabilities, he was also of the opinion the injury in 2002 not only resulted in a fracture at the medial end of the left clavicle but also resulted in an injury to the left sternoclavicular joint because it was adjacent to the clavicular fracture. In his opinion, he considered that the plaintiff would continue to suffer pain in the left shoulder and over the left sternoclavicular joint on excessive use.
53 It is convenient to refer to the medico-legal material relied on by the defendant, who arranged for the plaintiff to be examined by the following doctors:
(a) The occupational physician, Dr Charles Castle, on 23 June 2003;[42]
[42]See report dated 4 July 2003 contained in Exhibit 3 at page 13 DCB
(b) The orthopaedic surgeon, Mr John O’Brien, on 26 November 2003;[43] and on 26 July 2004;[44]
(c) The orthopaedic surgeon, Mr Gerald Moran, on 25 January 2011.[45]
[43]See report dated 28 November 2003 contained in Exhibit B at page 18 DCB
[44]See report dated 5 August 2004 contained in Exhibit B at page 21 DCB
[45]See report of same date contained in Exhibit B at page 30 DCB
54 When seen by Dr Castle in June 2003, the plaintiff was complaining of a sore left shoulder, causing him to be unable to lift his left arm fully above that shoulder. He also had difficulty putting on socks and shoes.
55 After examination, an examination of the various radiological studies done at that time, Dr Castle was of the opinion that the plaintiff had suffered a fracture of the medial end of the left clavicle and a soft-tissue injury to his left shoulder which had resulted in a capsulitis of the left shoulder.
56 Dr Castle noted that the plaintiff had been off work for about four months and was presently performing modified duties on restricted hours.
57 When initially seen by Mr O’Brien on 26 November 2003, the plaintiff complained of pain at the medial end of the clavicle where he indicated there was definite tenderness over the bone. He also described pain radiating proximally along the line of the muscle attached to the medial end of the clavicle and this pain is associated with restricted movement of his neck, particularly turning to the left, which causes pain. In particular, Mr O’Brien noted that the plaintiff complained that the pain can be significant at night, disturbing his sleep, if he does not use appropriate pillows. Further, the plaintiff complained of pain over the superior, anterior and lateral aspect of the left shoulder which he demonstrated as precipitated by elevation of the arm and also by internal rotation of the shoulder.
58 At that time, Mr O’Brien was of the opinion that clinically there was evidence of sound fracture healing although there was some persistent tenderness with bony irregularity of the medial clavicle and mild restriction of cervical movement related to what appears to be a mild contracture of the left sternoclavicular joint. Further, there was some clinical evidence of some rotator cuff inflammation with evidence of some mild impingement.
59 Mr O’Brien considered the plaintiff continued to exhibit symptoms associated with persistent left rotator cuff pathology and pathology associated with the medial clavicle, left sternoclavicular joint and sternomastoid muscle. He considered the plaintiff demonstrated moderate disability in relationship to his non-dominant left hand.
60 When re-examined by Mr O’Brien on 26 July 2004, the plaintiff continued to complain of pain in the medial aspect of the left clavicle which was aggravated by movement of the left arm or attempts to lift that arm. Furthermore, the plaintiff complained of pain over the superior lateral aspect of the left shoulder which again is aggravated by elevation of the left arm and in particular when reaching forwards.
61 At that time, the plaintiff stated that he was taking the “occasional Naprosyn” when the pain was relatively severe but was not having any active treatment.
62 Mr O’Brien noted that the physical signs of the plaintiff had “changed little” and he found definite swelling and tenderness associated with the medial aspect of the left clavicle and the sternoclavicular joint. Furthermore, he found restriction of movement of the left shoulder which was suggestive of mild persistent capsulitis of the glenohumeral joint rather than a specific rotator cuff impingement.
63 Mr O’Brien considered it to be “unlikely” that the clinical condition would improve, and described the disability of the plaintiff in relation to the left arm to be “moderate” with definite restriction of left arm function.
64 When seen by Mr Moran on 25 January 2011, the plaintiff was complaining of left shoulder pain and pain at the medial end of the left clavicle with movement of his left arm, together with restricted left shoulder movements. At that stage he was taking two Panadeine Forte every night.
65 Essentially, the purpose of the examination by Mr Moran was to assess any permanent impairment under the AMA Guidelines, which are not particularly helpful to the determination of the issue of “serious injury” under the narrative test.
66 However, I do note that movements of the left shoulder were restricted and in particular, flexion of the left shoulder was limited to 100 degrees and abduction to 110 degrees.
67 The defendant also tendered the notes of the treating general practitioner, Dr Gouras.[46] Such notes are essentially tendered for the purposes of forming a foundation for the cross-examination of the plaintiff in relation to attendances on Dr Gouras from about October 1998 up to 19 January 2002 in respect of complaints of low-back pain and also, the frequency of prescriptions for medication.
[46]See Exhibit E
Analysis of the Evidence
68 There is no issue that the plaintiff, during the course of his employment with the defendant, suffered injury to his left shoulder on or about 24 July 2002. Furthermore, there is no issue such injury has resulted in some permanent impairment.
69 The nature of the injury to the left shoulder of the plaintiff consists of two components:
(a) A comminuted fracture of the medial aspect of the clavicle approximately 10 millimetres distal to the sternoclavicular joint. Such fracture was only mildly displaced.[47] The fracture has healed but there is persisting pain and some tenderness in the area of the left clavicle and sternoclavicular joint;
(b) Some type of soft-tissue injury causing damage to the rotator cuff, whether it be a tear or rotator cuff tendinosis giving rise to pain in the shoulder particularly when the left arm is elevated or is involved in heavy lifting.
[47]See Exhibit 3 at page 52 PCB
70 Although there are two components to the left shoulder impairment, the parties, appropriately in my view, have approached the matter that the plaintiff has suffered a left shoulder impairment.
71 It is to be noted that the plaintiff has been quite consistent in his description and location of pain in the left clavicle and sternoclavicular joint on one hand and on the other hand, pain in the left shoulder mechanism.
72 I formed the view that the plaintiff was largely a witness of credit. I formed such view because of the consistency of the complaint by the plaintiff over the years, his ready concessions as to what he was able to do with the left arm, and indeed, his general demeanour in court. Although I do find that it is highly probable that the plaintiff was complaining of low-back pain to Dr Gouras on various occasions from October 1998 up to 19 January 2002, I consider that the denial by the plaintiff of attending Dr Gouras on those dates in relation to low-back pain reflects more mistaken memory than any attempt to mislead the Court.
73 After a consideration of all of the evidence, I make the following findings of fact:
(a) The plaintiff is a sixty-five year old (born 18 August 1947) married man who had limited education in Greece before joining his father on the family farm;
(b) Since coming to Australia on 12 February 1971, he seemingly has had a reasonably good employment history and in particular, for about thirteen years prior to 1990 was involved in various aspects of chicken processing;
(c) In or about 1990, the plaintiff commenced employment with the defendant. The business of the defendant was then owned by the plaintiff’s son-in-law and daughter. In 1993, the premises at 121 Scotchmer Street, North Fitzroy, was purchased by his son-in-law and daughter and by the plaintiff and his wife. The business of the defendant was then conducted at Scotchmer Street, North Fitzroy until such time the business was moved to Reservoir. The plaintiff and his wife continue to be paid 50 per cent of the rent from the North Fitzroy property;
(d) In or about 1998, the son of the plaintiff purchased the business of the defendant from the son-in-law and daughter and he continues to run such business to date;
(e) The plaintiff’s duties were part-time when he commenced with the defendant and involved performing process work, helping out where required and giving advice to his son. Over the years when the business started to improve, the plaintiff worked increasing hours. I do find that prior to the injury, the plaintiff was engaged in all of the activities of the processing business of the defendant and in particular, was engaged in the boning and preparation of the chickens, which involved carrying trays and lifting various weights;
(f) Since the occurrence of the injury, the plaintiff has been unable to perform boning and cutting work or lift trays of chicken or chicken pieces or generally involve himself in any strenuous work involving the left arm;
(g) The plaintiff can use his left arm, which he freely concedes, and which is demonstrated by the surveillance. However, I accept that it is difficult for the plaintiff to raise his left arm above shoulder height, lift heavy weights or continually use the left arm in any particular activity;
(h) The plaintiff experiences pain around the left shoulder girdle as a result of the injury and such pain is intensified when he is required to use the left arm on a frequent basis. Furthermore, I accept that given the nature of his left shoulder condition, it would interfere with his sleep if either he slept on his left shoulder or was not appropriately placed in the bed;
(i) The plaintiff does take medication involving Panadeine Forte and Voltaren on a daily basis to relieve the pain and also takes sleeping tablets once or twice a week to assist in his sleeping.
74 In making such findings, I give significant weight to the orthopaedic surgeon, Mr Justin Hunt, who treated the plaintiff in March and April 2011 and had the advantage of various studies undertaken on 5 April 2011, which included an x-ray of the left shoulder to assess the acromial morphology and acromioclavicular joint, an MRI scan of the left shoulder to assess the rotator cuff integrity and the CT scan of the sternoclavicular joints. I note that Mr Hunt concluded, in part, that the description of symptoms by the plaintiff and the pathology as seen in the recent studies “fitted very well”. Similar views are echoed by the medico-legal specialist, Mr Flanc, who last examined the plaintiff on 30 July 2012.
75 I do find that the left shoulder injury to the plaintiff has resulted in permanent impairment with organic consequences as described. The issue becomes whether, on all of the evidence, the plaintiff discharges the narrative test in that whether such consequences can be described as being “more than significant or marked” and as being at least “very considerable”.
76 Counsel for the defendant in a balanced submission essentially submitted that it is relevant to take into account the following matters:
(a) The age of the plaintiff;
(b) The affected arm is his non-dominant arm;
(c) That although the plaintiff has some limitations and pain, he can clearly use the left arm as conceded by the plaintiff and established by the video material;
(d) That he is capable of rising at 3.00 am and driving from his place of residence in St Kilda to the premises of the defendant in Reservoir, where he arrives at about 4.00 am to meet the drivers delivering the chickens. Further, he is capable of remaining at those premises to 5.00 or 6.00 pm, five days a week, and assist as and when required;
(e) That his complaints about disturbance of sleep should be seen in the context of a man who seemingly rises at 3.00 am and spends many hours at the place of work in Reservoir.
77 After a consideration of all of the evidence, I consider this matter a borderline case but am ultimately persuaded that the plaintiff has discharged his onus in establishing that the organic consequences of his left shoulder impairment are “more than significant or marked” and are at least “very considerable”.
78 I have come to such a view on the basis that I accept that the plaintiff, since the occurrence of the injury, has had virtually continuous pain in his left shoulder girdle which has required medication on a daily basis to control and has impacted to some extent on his daily activities and his capacity to work.
79 In particular, although appreciating that the plaintiff is now sixty-five years of age, he has experienced the restrictions in his left shoulder, and the pain symptoms in his left shoulder girdle for over ten years and will continue to do so in the foreseeable future. The pain not only is a relevant factor in his loss of enjoyment of life, but is also relevant in the way that it impairs his ability to sleep, and perform the type of work that he was performing prior to the advent of his injury.
80 Although giving some weight to the plaintiff’s concerns about “the future”, I see such issue more in terms of a concern about the ongoing painful condition in his shoulder rather than that impacting on his prospects for alternative employment. Given his industrial background, it would be understandable to have concerns about alternative employment given the nature of his left shoulder condition. However, perhaps fortunately, in the circumstances of this matter, the plaintiff effectively works for his son and has a degree of flexibility as to what activities he undertakes in the performance of his work. Furthermore, there is no evidence whatsoever to suggest that such a situation will not continue in the foreseeable future.
81 As I have already stated, I have been impressed by the consistency of the plaintiff’s complaints over the years and his willingness to accept that there are activities which he can undertake with his left arm. Such concession perhaps reinforces his evidence as to the difficulties that he describes experiencing and the extent of the pain that he does suffer.
Conclusions
82 Pursuant to s134AB(16)(b) of the Act, I grant leave to the plaintiff to bring a common law claim for “pain and suffering damages” in respect to the injury suffered by him on or about 24 July 2002.
83 I will hear the parties on the issue of costs.
Annexure “A”
The plaintiff tendered the following material:
(a)Exhibit 1 – two affidavits of the plaintiff sworn on 6 July 2011 and 9 August 2012, found at pages 15 to 20.3 of the Plaintiff’s Court Book (“PCB”).
(b)Exhibit 2 – medical reports from the treating general practitioner, Dr A Gouras, dated 7 September 2004, 10 September 2010, 17 March 2012 and 8 August 2012; medical reports from the treating orthopaedic surgeon, Mr J Hunt, dated 27 April 2011 and 29 December 2011, all of which are found at pages 27 to 48 and 48.1 and 48.2 of the PCB.
(c)Exhibit 3 – radiological material consisting of an ultrasound of the neck dated 21 September 2000; an ultrasound of the left shoulder dated 19 September 2002; a lumbar spine x-ray dated 19 November 2002; an x-ray of the left clavicle dated 3 December 2002; a CT scan of the left sternoclavicular joint dated 18 August 2004; an x-ray of the cervical spine and left clavicle and an ultrasound of the left shoulder dated 1 September 2010; an MRI scan of the acromioclavicular joints bilaterally and a CT scan of the sternoclavicular joints bilaterally and an MRI of the left shoulder, all undertaken on 5 April 2011, all of which are contained at pages 49 to 56 of the PCB.
(d)Exhibit 4 – medico-legal material consisting of the reports of the vascular and general surgeon, Mr Charles Flanc, dated 5 July 2010; 31 July 2012 and 8 August 2012, all of which are found at pages 57 to 71 of the PCB.
The defendant tendered the following material:
(a)Exhibit A – the plaintiff’s Claim for Compensation dated 28 July 2002, contained at pages 1 to 3 of the Defendant’s Court Book (“DCB”).
(b)Exhibit B – medical reports from the orthopaedic surgeon, Mr Frank Lyons, dated 29 December 2003 and 24 May 2004; the occupational physician, Dr Charles Castle, dated 4 July 2003; the orthopaedic surgeon, Mr John O’Brien, dated 28 November 2003 and 5 August 2004 and the orthopaedic surgeon, Mr Gerald Moran, dated 25 January 2011, all of which are contained at pages 10 to 23 and 30 to 34 of the DCB, report of the ultrasound of the left upper sternum dated 20 October 2003.
(c)Exhibit C – the reports of the orthopaedic surgeon, Mr Jonathan Hooper, dated 16 November 2002 and 26 November 2002; a further report from the orthopaedic surgeon, Mr Frank Lyon, dated 19 February 2003, all of which are contained at pages 35a and 38a to 40a of the DCB.
(d)Exhibit D – DVD of surveillance undertaken on 28 July 2012 and 4 August 2012.
(e)Exhibit E – clinical file of the treating general practitioner, Dr Gouras.
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