Parker v Tennant
[2011] VCC 217
•18 March 2011
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT WARRNAMBOOL
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-10-01445
| GREGORY JOHN PARKER | Plaintiff |
| v | |
| FRANCIS C & TRACEY M TENNANT | Defendant |
| & CGU WORKERS COMPENSATION LIMITED |
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| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING: | 24 and 25 February 2011 |
| DATE OF JUDGMENT: | 18 March 2011 |
| CASE MAY BE CITED AS: | Parker v Tennant & Anor |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 217 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s.134AB – application for leave in respect of pain and suffering damages only – two separate physical injuries suffered in the one traumatic incident – injury to neck and to left shoulder – reliance upon sub-paragraph (a) of the definition of serious injury – whether burden of proof discharged.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Brookes SC with | Stringer Clarke |
| Mr N Bird | ||
| For the Defendant | Mr P Scanlon QC with | Lander & Rogers |
| Mr P Jens | ||
| HIS HONOUR: |
Background
1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave in relation to pain and suffering damages only. Originally the plaintiff also sought leave in relation to pecuniary loss damages, but abandoned this aspect of the application during the conduct of the case. It was also made clear that, whilst the documentation contained references to both sub-paragraphs (a) and (c) of the definition of serious injury contained in s.134AB(37) of the Act, the plaintiff was in fact relying solely upon sub-paragraph (a). The injury is one to the cervical spine and to the shoulders, this occurring on or about 23 May 2003 when the plaintiff was struck by a falling branch whilst working as a tree feller. Whilst reference was made to both shoulders, it was conceded in the opening on behalf of the plaintiff that it was probably only the injuries to the neck and left shoulder which could satisfy the statutory requirements. I agree with this, and shall not deal further with any injury to the right shoulder. I might say at this stage that the interests of the defendants overlap entirely. Henceforth I shall refer only to “the defendant”, meaning Francis C and Tracey M Tennant by whom the plaintiff was employed and in whose employment the plaintiff sustained the injury or injuries in question.
2 Mr D Brookes SC with Mr N Bird of counsel appeared on behalf of the plaintiff. Mr P Scanlon QC with Mr P Jens of counsel appeared on behalf of the defendant. The plaintiff was called to give evidence and was cross-examined. The balance of the evidence was documentary in nature and was tendered by consent, which was a most sensible and cost-efficient manner in which to conduct this application.
3 I am familiar with the numerous decisions of the Court of Appeal which bear upon applications such as this and shall endeavour to apply the principles set out in them in coming to a decision in this case. I shall not list such cases here but shall refer to any cases which I consider to be specifically relevant in the course of this Judgment. It was not argued but that the plaintiff bears the burden of proof.
Factual background
4 The following findings of fact are made for the purposes of this application and are not intended to be findings which are in any way determinative in relation to issues such as negligence, the quantum of damages, entitlement to statutory benefits and the like.
(i) The plaintiff 5 The plaintiff presented as a somewhat unusual man whom I found to be completely honest, straightforward and frank. Indeed, very fairly, Mr Scanlon, on behalf of the defendant, commenced his closing address by describing the plaintiff as “a good bloke…an honest bloke”. Mr Scanlon also commented upon the plaintiff’s frankness. Mr Brookes, on behalf of his client, adopted and endorsed this, referring to the plaintiff as a guileless, honest and simple person. I agree entirely with the above descriptions.
6 I note that Dr Edward Cole, who examined the plaintiff at the request of the defendant’s insurer in relation to an earlier incident of injury with a different employer, stated that the plaintiff gave a straightforward account of himself and his problems. Dr Paul Kornan, examining on behalf of the present defendant, described him as co-operative. Those examining the plaintiff at the request of his solicitors also had some interesting observations to make. Mr Kenneth Brearley stated that, on examination, the plaintiff was a pleasant man, scruffy in presentation but with a good deal of insight and was clearly a hard worker. Dr Michael Epstein, whilst referring to the plaintiff as being unkempt, also described him as co-operative. Whilst Mr Bill Radley, counsellor and consultant psychologist, directed more of his attention towards capacity for employment, nevertheless he observed that the plaintiff was co- operative, forthright and open, seeming to provide a very honest and reliable account of himself and his problems although with a tendency to understate these.
7 As stated, I agree with the observations of counsel. I agree with the other observations set out above. As shall be discussed, the plaintiff is a person of little education and below average intelligence. He seemed to me at times to have a tendency to agree with almost anything that was put to him. Nevertheless, overall, like counsel, I regard the plaintiff as being an honest, if guileless, witness and I accept the accuracy of his description of the symptoms and consequences of injury from which he suffers. I also agree that, if anything, the plaintiff may well have been inclined to understate matters in this regard. Certainly on a number of issues he was prepared to give answers that did not advance his cause.
(ii) The plaintiff’s education, background and training prior to the injury 8 As the plaintiff is seeking leave in relation to pain and suffering damages only, the amount of detail required under this heading is less than might otherwise be the case. Suffice to say that the plaintiff is 51 years of age, having been born on 15 August 1959. He is separated from his wife and has three children. His education was minimal. At school he had problems with literacy and left Hamilton Technical School without completing Year 7 and at the age of 13. Psychological testing has revealed that he has below average intelligence. He has worked on the roads, worked cutting posts and firewood, and undertaken shearing and other rural work. In 1999 he commenced working with a logging contractor. He suffered an injury that shall be discussed. He returned to shearing and also undertook some casual work for the defendant as a tree feller. In approximately mid-May 2003 the defendant telephoned the plaintiff offering him some work as a tree feller with the prospect of more to follow. It was on approximately the third day of this work that the relevant incident occurred. The occurrence of the incident of injury is not controversial for the purposes of this application.
9 Thus, prior to suffering injury, the plaintiff, a man of little education and less than average intelligence, had been performing rural work, principally as a shearer and tree feller. In other words, the work to which he was accustomed was physical by nature and demanding.
(iii) The injury (a) The state of the plaintiff’s health prior to the injury 10 The plaintiff has suffered blows to the head on two previous occasions. It would appear that in approximately September 1998 he was struck on the head by the centre pole of a marquee. Whilst it brought stars to his eyes, gave him a headache and made him feel sick, there was no apparent injury to the neck or shoulders. The report of Dr Philip Cassidy of 16 May 1999 would indicate the plaintiff attended at the Accident & Emergency Department of the Kaniva District Hospital on 10 September 1998 stating that he had been dazed transiently by the falling pole. No abnormalities were detected, he was monitored overnight and discharged, apparently well, the following day. A couple of weeks earlier the plaintiff had been admitted to the same hospital under the care of Dr Cassidy following a type of migrainous episode. Scanning revealed no abnormality.
11 The plaintiff suffered a more significant injury on or about 27 September 1999. It is referred to in a couple of the medical reports as occurring on 27 August 1999, but nothing hinges upon whether the incident occurred in September or August. There is only the one incident, and it occurred when the plaintiff was employed by an entity called Kawarren Logging. The relevant insurer (the same insurer or its predecessor as that involved in the present case) accepted liability for it. Because this accident and its consequences became the focus of considerable attention in the present application, I shall deal with it in some detail.
12 The plaintiff was cutting the base of a tree when a large branch fell and struck him on the back of his head. The incident was of sufficient magnitude for the plaintiff to suffer brief amnesia and to require hospitalisation at the Hamilton Hospital for approximately one week. In October 2001 the plaintiff was seen by Mr David Brownbill, consultant neurosurgeon, at the request of Kawarren Logging’s insurer. Mr Brownbill took an appropriate history. The plaintiff had suffered pain in the front of the chest and in the lower neck and across the shoulders to the arms. He briefly returned to tree felling but physically could not work because of the pain. After three months he took occasional short jobs and then returned to shearing but with pain in the lower back and shoulders. When seen by Mr Brownbill he had been shearing full-time since June 2001 and was not continuing to see his doctor (I note that this is similar to the situation following the 2003 incident in that the plaintiff seems to have a preference for not attending a doctor or taking medication unless absolutely necessary). When seen by Mr Brownbill he was not able to shear as many sheep as before the incident. He complained of pins and needles in his hands and his back hurting if he did too much. The neck pain was situated low posteriorly and, like his lower back pain, was coming and going. It was worse after physical activity, but sometimes could be good. Apart from some complaint of numbness in the arms on waking, and headaches that had improved and were “not bad at all now”, there were no other relevant complaints.
13 Mr Brownbill noted the plaintiff to be alert, co-operative, and genuine in his descriptions without embellishment. It is interesting that Mr Brownbill, examining in excess of nine years ago on behalf of a different potential defendant, made observations substantially in accordance with those of recent examiners. This underlines the impression which I formed of the plaintiff.
14 In any event, Mr Brownbill found a full and free performance of movements of the cervical spine without pain and ultimately diagnosed that the plaintiff had suffered a mild concussive head injury from which he had made a full recovery and soft tissue damage to structures about the cervical and lumbar spine without neurological damage.
15 I also note that the plaintiff was examined at the request of the same insurer by Mr D M Jensen, neurosurgeon, on 9 August 2002. Mr Jensen took a history of the plaintiff being troubled by pain in the shoulders particularly at night, this being related to his level of activity. He also complained of low back pain, but only had an occasional headache. I also note Mr Jensen’s observation as follows:
“He was an unprepossessing and genuine man who gave his
history in a frank and forthright manner.”
16 That strikes me as a neat summary of the impression made by the plaintiff some eight and a half years later. Mr Jensen formed the view that the plaintiff had suffered a concussive head injury from which he had made a good recovery. There was no evidence of any persisting neurological component to his injuries. Mr Jensen considered the plaintiff to have sustained soft tissue injuries to the shoulder regions.
17 In relation to the 1999 incident, the plaintiff was also seen by Dr Edward Cole, consultant psychiatrist, on 9 August 2002. Dr Cole took a history that the plaintiff suffered from headaches across his eyes approximately twice a week, occasionally felt dizzy and that if he attempted too much, he felt weak and had to sit down. The plaintiff also stated that he occasionally suffered from neck pain when shearing or at night when trying to sleep. He did not feel like working, and wondered if he would ever be able to work properly. He had undertaken some tree felling off and on since the 1999 accident but felt apprehensive when doing this. Dr Cole thought that the plaintiff was suffering from a chronic anxiety state and reactive depression related to the accident and that his symptoms, including headaches, were consistent with a post- concussive syndrome. He also pointed out that one of the plaintiff’s main concerns was psoriasis. Dr Cole was of the view that the plaintiff’s nervous disorder was mild, did not call for psychiatric treatment, and appeared to have stabilised. Dr Cole also stated that, given that the plaintiff had been able to work as a shearer for some six months, it seemed unlikely that he had suffered any significant physical injuries.
18 Mr John Henderson, orthopaedic surgeon, examined the plaintiff at the request of the insurer on 19 February 2002. The plaintiff told Mr Henderson that he had stopped work only two weeks previously because his seasonal work of timber felling and shearing had run out. He told Mr Henderson that he had pins and needles and tingling in both arms for a month after he came out of hospital. He complained of some pain between the shoulder blades and in the lumbar level when shearing. He also said that he sometimes got light- headed when shearing and at times felt weak. He complained of neck pain just below the seventh cervical vertebrae, saying that sometimes he had to get up at night and walk around, especially if he had been working hard. He also complained of leg pain, and some right arm and shoulder soreness at times. In addition, he complained of psoriasis, which condition was photographed by Mr Henderson. Mr Henderson was reluctant to assess the plaintiff’s neck injury in the absence of further radiological investigation. A substantial part of his report involves various assessments pursuant to the AMA Guides.
19 Interestingly, Mr Henderson, on 16 September 2004, was forwarded various documents, including the reports of an MRI carried out on 11 May 2004. He was then prepared to accept that the plaintiff had suffered a significant neck injury, obviously bearing in mind the result of that investigation. He was also forwarded a letter of 25 May 2004 of Mr Brendan O’Brien, neurosurgeon, who had seen the plaintiff and had reviewed the MRI. The intriguing thing is that the MRI and the letter of Mr O’Brien post-date, by a considerable margin, the incident and injury of May 2003 which is the subject of this application. However, no one seems to have informed Mr Henderson of this and there is no reference to the more recent accident in the report sent to him. It is quite clear from his report of 23 September 2004 that he still thought he was dealing with the incident with Kawarren Logging of 27 September 1999. Indeed, the extract from the letter forwarded to him by the insurer reproduced in Mr Henderson’s report makes it clear that his attention was directed to the 1999 incident and that extract, which is lengthy, also contains no reference to the 2003 accident. It is equally clear that Mr O’Brien did not interview the plaintiff again, and was asked to express his opinion solely on the basis of his original assessment in 2002 together with the MRI and Mr O’Brien’s letter. There is no reference in his report to the more recent accident. It is safe to assume that Mr Henderson was totally unaware of it. However, in light of the material sent to him, he stated that there was MRI confirmation of significant intervertebral disc derangement at the C3/4 and C4/5 levels. It may be that Mr Henderson had earlier suspected the presence of a significant neck injury, but the “confirmation” which he found in the material forwarded to him in 2004 could just as readily relate to the 2003 accident as to the 1999 incident. Indeed, given the observations of Mr Brownbill, a consultant neurosurgeon, in October 2001 to the effect that the plaintiff had suffered a mild concussive head injury and soft tissue damage to structures about the cervical spine and no neurological damage, one might well think that the “confirmation” of a significant neck injury as opined by Mr Henderson in 2004 is more likely to be “confirmation” of an injury received in 2003 rather than in 1999. It is a pity that Mr Henderson apparently was never informed of the 2003 accident when asked to express his opinion in 2004.
20 In summary, in relation to the plaintiff’s state of health prior to 23 May 2003, and particularly following the incident in 1999, these being topics that received considerable attention, it is quite clear that the plaintiff did suffer some symptoms in the cervical spine following the 1999 incident and these did have some consequences, such as sleep interference and the like. However, the bottom line is that the plaintiff, regarded almost unanimously, and certainly by me, as an honest man, has given sworn evidence that, by May 2003, the effects of the 1999 incident had settled down and he “almost felt normal”. I accept this. There is nothing in the material before me to contradict this proposition. There is no evidence before me of any medical examination of the plaintiff for a period in excess of nine months prior to the 2003 incident. I accept his sworn evidence that, by the time of the relevant accident, he was getting a reasonable night’s sleep.
21 Of course, as shall be discussed, if the injury suffered by the plaintiff in the relevant incident is in the nature of an aggravation, as required by the authorities it is only the consequences and symptoms arising from that aggravation that are to be considered. However, I am of the view that, on the balance of the evidence, the symptoms, restrictions and consequences which I am to consider essentially arose from the incident of May 2003, and he had largely recovered from any ill-effects of the 1999 incident.
(b) The injuries of 23 May 2003, their treatment and the assessments of them 22 On 23 May 2003 the plaintiff was engaged in tree felling for the defendant and was doing a back cut on a tree. It commenced to fall. He stepped away but was struck on the head by a falling branch.
23 The plaintiff was taken to the Hamilton Base Hospital and thence to the Royal Melbourne Hospital before being returned to the Hamilton Base Hospital. It would appear that on 23 May 2003 an x-ray was taken at Hamilton of the plaintiff’s cervical spine, and this revealed avulsion of the anterior/inferior margin of C2 suggestive of an hyperextension injury. This was described as being potentially unstable but there was no evidence of extension of the injury elsewhere. A CT scan undertaken on the same day confirmed avulsion of a triangular fragment at C2 but with no disruption of the posterior vertebral margin or of the spinal canal. Doctors from the Hamilton Medical Group, and in particular Dr Johnson, thereafter saw the plaintiff. The plaintiff does not like taking medication and has had little ongoing medical treatment, preferring to put up with his symptoms. A further x-ray on 1 June 2003 revealed a small avulsion fracture arising from the volar aspect of the base of the body of C2 with minor soft tissue swelling, and a further CT scan on 4 July 2003 again confirmed that a triangular shaped bone fragment had been fractured from the anteroinferior aspect of the body of C2 with some minimal displacement.
24 On 25 May 2004 the plaintiff was reviewed by Mr Brendan O’Brien, neurosurgeon, at the request of Dr McLindon of the Hamilton Medical Group. Mr O’Brien expressed the view that the MRI of the cervical spine demonstrated C3/4 and early C4/5 disc degeneration with mild central canal stenosis at C3/4. On the basis of the current MRI, Mr O’Brien was of the view that the plaintiff could return to work, the plaintiff being very keen to do this and being aware that work may cause episodes of pain in the posterior cervical region.
25 In August 2004 Dr Johnson referred the plaintiff to Mr Andrew Byrne, orthopaedic surgeon. Mr Byrne took a history of the plaintiff being knocked unconscious in the incident and waking up some three hours later in the Royal Melbourne Hospital.
26 In September 2005 Dr Johnson again referred the plaintiff to Mr O’Brien. The plaintiff was complaining of increasing pain in the posterior cervical region from C2 to C4 with pain extending up to the back of the left ear. Mr O’Brien suggested a further MRI together with the prescription of Voltaren.
27 On 8 November 2005 Mr O’Brien again wrote to Dr Johnson. The further MRI scan had been performed. This showed evidence of mild to moderate canal stenosis at C3/4 from a central and left paracentral sub-ligamentous disc protrusion which was likely to be compressing the anterior ramus of the C4 nerve root on the left. There was also slight narrowing at C4/5 and to a lesser extent at C5/6. There was also a slight irregularity of the antero-inferior body of C2, suggesting the previous trauma.
28 On 10 December 2006 Mr O’Brien reported to the plaintiff’s solicitors. He recorded an appropriate history, including the fact that the plaintiff had been transported by air ambulance to the Royal Melbourne Hospital following the incident of injury. That report basically sets out what has been described above, and confirms that Mr O’Brien had not seen the plaintiff since 8 November 2005. The report also contains reference to the fact that in the plaintiff’s right shoulder there had been detected tendonopathy in the supraspinatus tendon with a small amount of fluid being present. There was also a small articular surface supraspinatus tear in the left shoulder, and there is reference to the fact that the plaintiff was referred to Mr Andrew Byrne.
29 Mr Byrne was mainly concerned with the plaintiff’s left non-dominant shoulder and the plaintiff’s complaints in that regard. These included numbness and pins and needles in the left hand and arm. An MRI previously performed revealed multiple areas of problems, including two possible tears involving the supraspinatus and a tear involving the anteroinferior glenoid rim with a large cyst. Mr Byrne recommended surgery. He also injected the left shoulder subacromial space. The plaintiff then showed some reluctance to proceed with the surgery, there being a number of “false starts”. That surgery to the left shoulder proceeded on 15 March 2005, such surgery being to repair the rotator cuff tear as well as a decompression. Mr Byrne was of the view that it would take a minimum of three to four months before the plaintiff would be able to return to work.
30 Dr Johnson reported to the plaintiff’s solicitors on 28 April 2006. He noted that the plaintiff continued to have some reduction in range of movement of the left shoulder and complained of persistent neck pain. He expressed the view that a left paracentral disc protrusion could well be compromising one of the nerve roots which could cause the plaintiff’s pain, both in the neck and radiating down the arm. In a subsequent report on 25 May 2007, Dr Johnson expressed the view that the plaintiff suffered from chronic left arm, shoulder and neck pain and felt that he was always going to be troubled by exacerbation of pain caused by twisting or rotatory movements of the neck and recurrent use of the left arm. A subsequent report of 27 July 2009 referred to the fact that the plaintiff was having difficulty performing shearing work with exacerbation of pain in the left arm and neck, and Dr Johnson felt that the plaintiff’s work capacity was significantly compromised.
31 The plaintiff has been reviewed by a number of doctors for medico-legal purposes.
32 At the request of the defendant, Mr Paul Kierce, orthopaedic surgeon, saw the plaintiff on 25 November 2003. Mr Kierce diagnosed an avulsion type fracture of the anteroinferior margin of the second cervical vertebra and was of the view that the plaintiff was still suffering from some stiffness in the cervical spine as at that time. He thought that the plaintiff could make a graduated return to work. He raised the possibility of a crush fracture at the 12th dorsal vertebra. He was also of the opinion that the plaintiff should be seen by a neurologist or a neurosurgeon. Mr Kierce saw the plaintiff again on 22 October 2004. He noted that the plaintiff was still complaining of pain located above the left shoulder girdle and radiating to the left shoulder blade and was having disturbed sleep. On examination, he found tenderness in the left mid cervical region with pain occasioned by the rotating of the cervical spine to the right and limitation of extension of the cervical spine. He also noted global numbness of the left upper limb and tenderness in the area of the left shoulder. His conclusion was that the major injury suffered by the plaintiff was to his head with resultant damage to the cervical spine, with no indication of any injury to the left shoulder girdle. On this occasion, Mr Kierce felt that the injury sustained by the plaintiff was to the cervical spine with aggravation of degenerative changes in that location, and believed that there was resultant incapacity for pre-injury employment. He placed restrictions upon the duties in which the plaintiff might engage, and expressed the view that suitable employment would be very difficult to find for him. In a subsequent letter, Mr Kierce did not believe that there was any indication for surgery to the left shoulder girdle and did not believe it to be appropriate, but, as we know, this was in fact carried out.
33 Mr John Bourke, orthopaedic surgeon, examined the plaintiff at the request of the defendant on 2 February 2006. He took a history of pain over the left side of the neck extending into the left side of the base of the skull and also of pain in the top of the shoulder blade. Whilst implicating employment, Mr Bourke did not feel that the injury was in the nature of an aggravation. However, he noted that the MRIs had shown disc degeneration in the upper part of the cervical spine with a disc bulge, particularly at the C3/4 level, and narrowing of the spinal canal at that same level. He expressed the opinion that the plaintiff would never return to work as a tree feller and would need to be retrained which, in itself, presented difficulties.
34 The defendant also had the plaintiff seen by Dr David Fish, consultant occupational and environmental physician. This examination took place on 8 July 2009. The plaintiff was complaining of persistent left-sided and right- sided neck pain with occasional headaches. There was pain over the lateral side of the neck and into the trapezius, mainly on the left side and with some radiating pain to the left upper arm. There was also persistent numbness in three fingers of the left hand. Dr Fish also noted complaints of weakness around the left shoulder and constant pain in the upper arm and trapezius. Dr Fish was of the view that the plaintiff had suffered a chip fracture of C2 without any evidence of neural compression and an aggravation of cervical spondylosis with no objective evidence of radiculopathy. He also felt that the plaintiff had significant left rotator cuff dysfunction which had been surgically treated, but that there still were significant left rotator cuff problems. Dr Fish was of the view that the plaintiff’s impairment had stabilised and was prepared to make an assessment of permanent impairment. In a subsequent letter, Dr Fish stated that there was clearly an avulsion fracture of C2 which had occurred on the occasion of the relevant accident and had not been previously present. He also stated that there was clearly a fracture of the transverse process and that there were continuing neck symptoms and referred symptoms to the arms of sufficient severity to warrant the permanent assessment which he had made.
35 Dr Jack Wodak, neurologist, saw the plaintiff on 14 February 2011. It is apparent that Dr Wodak had some difficulty dealing with the plaintiff, who was unhappy about the number of doctors that he had seen at the request of the defendant. In any event, when things settled down, Dr Wodak took a history of the plaintiff being subject to pain in his shoulders, neck and occipital region following activities. There were detected no abnormal neurological signs and Dr Wodak found no evidence to suggest that there was a neurological basis for any disability. However, he observed that the symptoms associated with the disruption of the plaintiff’s shoulder and the degenerative changes in his cervical spine might make it difficult for him to carry out the heavy manual labour in which he had always been employed.
36 The plaintiff has also been examined by specialists on a medico-legal basis at the request of his solicitors.
37 Mr Kenneth Brearley, surgeon, saw the plaintiff on 9 July 2009. He also took a history of constant discomfort or pain in the left side of the neck radiating to the top of the left shoulder, together with shoulder and arm pain and pins and needles down the arm to the middle and ring fingers. Mr Brearley diagnosed avulsion fracture of the C2 vertebral body with symptoms of nerve root irritation in the left hand and arm arising at the C4/5 and, more particularly, the C6/7 levels. He also noted residual stiffness and pain in the left shoulder as a result of the tear of the rotator cuff and the subsequent repair and decompression. He implicated employment.
38 Mr Peter Dohrmann, neurosurgeon, examined the plaintiff on 9 June 2010. The plaintiff told him that he was suffering from chronic neck pain and stiffness with pain radiating principally to the left shoulder. He stated that his sleep was significantly diminished by pain and he was never free of it. Mr Dohrmann expressed the opinion that the plaintiff had suffered a significant injury to the head, neck and shoulders in the relevant accident. He believed that it was responsible for the fracture of the body of the C2 vertebra and was likely to have aggravated pre-existing cervical spondylosis. He regarded the plaintiff as being permanently unfit for full-time work as either a fencing contractor or a sheep shearer, and regarded the prognosis as guarded.
39 In the above summary of medical examinations, I have not alluded to the reports of Dr Paul Kornan, consultant psychiatrist, who examined the plaintiff on behalf of the defendant; Dr Michael Epstein, consultant psychiatrist, who examined the plaintiff at the request of his solicitors; or Dr Jenny Ponsford, clinical neuropsychologist, who examined the plaintiff at the request of his solicitors. I have also not referred to the report of Mr Bill Radley, counsellor and consultant psychologist, to whom the plaintiff was sent by his solicitors.
40 I am of the view that, in the relevant accident, the plaintiff suffered an avulsion fracture of the C2 vertebral body. I am also of the view that he aggravated pre-existing cervical spondylosis. That is the opinion of Mr Dohrmann, and I accept it. Dr Wodak, whose examination of the plaintiff seems to have been not without its difficulties, has also referred to the degenerative changes, whilst Mr Brearley has noted the avulsion fracture and also referred to symptoms of nerve root irritation arising at the C4/5 and C6/7 levels. The treating general practitioner, Dr Johnson, has referred to persistent neck and shoulder pain secondary to a disc bulge in the cervical spine. Mr Bourke was not of the view that any part of the injury was by way of aggravation, although he was aware that MRIs of 11 May 2004 and 13 May 2005 revealed disc degeneration. Mr Kierce was of the view that the plaintiff suffered an avulsion type fracture of the second cervical vertebra and did not comment about degenerative changes. Mr Brendan O’Brien has referred to the fact that the radiologist’s report of the MRI of 23 September 2003 contained the observation that the osseous fragment at C2 “may represent an old avulsion fracture”. This may have related to previous trauma. Whether Mr O’Brien was expressing that view or simply repeating the radiologist’s finding is not entirely clear. In any event, this view appears to be “one out”. Mr Dohrmann has given a logical explanation of the mechanism of injury and I accept this.
41 The occurrence of the injury to the plaintiff is not controversial, although its consequences were the subject of debate. In summary, insofar as the injury to the plaintiff’s neck is concerned, I am of the view that he did suffer an avulsion fracture as described and that he also aggravated pre-existing degenerative changes in the neck.
42 In relation to the left shoulder injury, I have described above the findings arrived at by Mr Byrne, the operating orthopaedic surgeon, and the surgery performed by him. There was no argument but that the injury sustained to the shoulder arose out of the relevant incident. The plaintiff suffered a rotator cuff tear and underwent surgery for it. He suffered a delamination requiring a decompression.
43 Insofar as there are psychological or psychiatric consequences of either injury, these are not to be taken into account by reason of s.134AB(38)(h) of the Act. They shall not be. However, whilst the plaintiff may have suffered some depression and symptoms of a like nature, I am not of the view that they are of any great magnitude. Dr Michael Epstein, examining the plaintiff at the request of his solicitors, has expressed the view that the plaintiff has no symptoms of traumatisation coming from the accident itself but, as a consequence of chronic pain and disability, has developed a mild, chronic adjustment disorder with depressed mood. He has further stated:
“His work problems arise solely from his physical condition and not from his psychiatric state. If he was able to work on a continuing basis it is likely that his levels of depression would improve”.
I also note that the plaintiff is currently on no medication. Dr Paul Kornan, consultant psychiatrist, stated as follows:
“From a psychiatric viewpoint there is no limitation to the worker’s daily activities of living … From the psychiatric viewpoint alone he is fit to work. It is not his psychiatric state which prevents him from working”.
Dr Kornan also stated that he doubted whether psychotropic medication would be of much use to the plaintiff.
44 Whilst, as stated, the plaintiff is a somewhat unusual man, his presentation in the witness box was certainly not one suggestive of a person suffering psychological or psychiatric consequences of injury of any note. Any such consequences shall be disregarded but, as stated, I do not regard them as being particularly significant.
45 Insofar as the injury to the neck represents an aggravation, as previously stated I accept that the plaintiff’s condition had returned to one that “almost felt normal” by the time of the relevant incident. He was, for example, getting a reasonable night’s sleep. Only the consequences of the aggravation shall be considered, but I am of the view that such consequences and symptoms of the injury as aggravated are essentially the consequences and symptoms from which the plaintiff now suffers. It is not suggested that the injury to the left shoulder was in the nature of an aggravation.
46 I also consider that the consequences of each injury are permanent within the meaning of the Act. In relation to the injuries to the cervical spine, Mr Dohrmann has stated that the prognosis is guarded, and that the plaintiff is likely to continue experiencing all of the symptoms and limitations described in Mr Dohrmann’s report for the foreseeable future. Mr Brearley has stated that, whilst there may be some improvement in the plaintiff’s overall condition, he will continue to have problems with the left shoulder and neck for the foreseeable future. Dr Johnson has expressed the view that the plaintiff is always going to be troubled by exacerbation of pain caused by certain movements of the neck and recurrent use of the left arm. Dr Fish, examining on behalf of the defendant, was prepared to give permanent impairment assessments in relation to the aggravation of cervical spondylosis and in relation to the left shoulder. Other than saying that the symptoms associated with the disruption of the plaintiff’s shoulder and that the degenerative changes in his cervical spine may make it difficult for him to carry out the type of work he had always been employed in, Dr Wodak makes no comment on prognosis. Mr Bourke opined that it was likely that the plaintiff would never return to work as a tree feller despite his positive approach, which may be seen as reflecting his opinion as to permanence, and it is to be recalled that he was examining on behalf of the defendant and focusing primarily upon the injury to the cervical spine. Mr Kierce also focused primarily upon the neck injury, placing restrictions upon the duties which the plaintiff might perform, stating that suitable employment would be very difficult for him to find, and also commenting that he knew of no other way of improving the plaintiff’s condition other than some further attempts at physical treatment of the cervical spine. Again, the impression conveyed is that the consequences of injury, at least to the neck, are permanent. Bearing in mind these opinions and the fact that it is now getting close to eight years since the incident of injury and the plaintiff’s symptoms and restrictions have persisted during that time, I am satisfied that they will continue for the foreseeable future. Accordingly, the consequences are permanent within the meaning of the Act.
(iv)
The plaintiff’s employment and other developments since the occurrence of injury.
47 I have already dealt with the plaintiff’s medical treatment since the injury. In relation to his employment and other activities, the situation is a little confusing. It is to be remembered that the plaintiff, whilst a genuine and honest man, is of below average intelligence and not necessarily a particularly accurate historian in relation to such things as dates and the like. However, it is clear that, despite the views of those treating him and other medical examiners, the plaintiff has returned, off and on, to heavy physical work of the type he has always performed. At times it seems to have been not without its difficulties, and the impression given is that it would have been in the face of medical advice to the contrary.
48 The actual periods of employment since 2003 are a little difficult to ascertain, but, as leave is no longer sought in relation to pecuniary loss damages, the need for greater precision has diminished. Nevertheless, some examination of what the plaintiff has been able to do in terms of work is of assistance in relation to pain and suffering consequences.
49 In his affidavit, the plaintiff has sworn that he was unable to work for a prolonged period of time but then, due to financial circumstances, returned to shearing when he could, although he was forced to take time off from that work when the pain became too severe. He also occasionally does some labouring jobs if there is no shearing work available, and refers to the restrictions imposed by problems with his neck and left shoulder. At times he has worked a five day week.
50 When seen by Mr O’Brien in September 2005, the plaintiff had been felling trees. In his report of 22 December 2005 Dr Johnson indicated that the plaintiff was certified unfit for work pending a review and was guarded about the plaintiff’s ability to return to labouring occupations despite the plaintiff’s hopes. In his report of 28 April 2006, Dr Johnson stated that he doubted that the plaintiff would be able to return to any form of labouring duties and may have a form of permanent incapacity in this regard. In May 2007 he expressed a similar opinion. When he saw the plaintiff on 19 January 2009 he noted that the plaintiff had attempted shearing over the past 8-10 weeks, but not on a full-time basis, and had concluded that he could not perform that type of work. To Mr Brearley the plaintiff mentioned a return to work on light duties some months after the accident, but stated that he was unable to cope with this. Mr Brearley also recorded that the plaintiff had attempted what he thought was suitable work with various entities, but in each case after a week or less he had to cease because of left shoulder and neck pain. He stated (as of 9 July 2009) that he had last tried to work some three weeks previously, the employment being a shearing job which he was unable to manage.
51 Dr Epstein has taken a comprehensive history. It includes a reference to a brief return to work in August 2003 and of the fact that the plaintiff returned to work in late 2007, doing whatever work he could. He had done tree felling but found that he had to stop after a few days because of increased neck and shoulder pain, and had worked (as at 7 July 2009) in a variety of jobs here and there for a few days at a time. His work included relief shearing and cutting firewood. In early June 2009 he did two weeks of a shearing job which had finished, and had not worked between then and seeing Dr Epstein.
52 To Professor Ponsford, he stated that he went back to work six weeks after the accident but had bad neck and shoulder pain. He also stated that he had had only about three to six months work each year for the six years prior to seeing Professor Ponsford on 9 July 2009. He described the work that he had done as being timber cutting and shearing.
53 To Mr Dohrmann, as at 9 June 2010, the plaintiff said that he had returned to shearing because of financial difficulties in 2005, but lasted only a few days. The pattern subsequently had been episodes of part-time work followed by absences to allow symptoms to subside. Until a couple of weeks before seeing Mr Dohrmann, the plaintiff had been working part-time, on and off, doing fencing as a casual employee for a farmer. He told Mr Dohrmann that he had worked on a particular job until he needed a break, and that this was typically work for about three months at a time. The plaintiff found it difficult to both work and manage his pain.
54 Dr Paul Kornan examined the plaintiff on behalf of the defendant on 7 July 2009. The plaintiff informed him that, since his injury, he worked in an “on and off” way. He might work for two or three days and then stop. He might do a week of work on timber and then be off. He felt he needed help with his education because he had only done labouring work.
55 Dr Wodak obtained very little information save that the plaintiff stated that his injuries prevented him from working even though he wished to do so and he could not survive on Centrelink payments.
56 Mr Bourke recorded that the plaintiff had tried to return to work on two occasions prior to the examination of 2 February 2006. The first was to farm work in 2004, when the plaintiff was unable to cope because of neck and shoulder pain. On 3 August 2005 he returned to felling trees, but his employer was unhappy as he was taking medication for his ongoing pain and that work ceased on 1 December 2005. When Mr Kierce saw the plaintiff on 22 October 2004, the plaintiff stated that he had returned to work “sometime after Christmas” doing light duties, inspecting water troughs, stock and the like but had been unable to continue because of soreness in the neck and left shoulder. At the earlier examination of 21 November 2003 the plaintiff had mentioned an attempted return to work for two days in that month, this apparently involving shearing, but he was very slow because of continual pain in the left side of the neck and some cramping in the ribs.
57 In his evidence, the plaintiff agreed that, if his tax returns for the financial year ending 30 June 2010 stated that he had done some work as a shearing contractor for some 13 employers, that would probably be correct. He could not remember the names of any. He did not believe he had done any tree felling in the last financial year. He also stated that he got his work by farmers simply ringing up and saying that they had a few days shearing or some trees to fell along a fence line. He also did some fencing, which may have been included in the list of 13 farmers for whom he had worked.
58 It seems to me that the overall pattern is that, whatever the medical opinions as to what he should do might be, the plaintiff is performing sporadic farm labouring work on a casual basis. This is not vastly different from his pattern of employment over the years and prior to May 2003. I accept his evidence that his shearing rate has dropped, and there would also appear to have been a drop in his income, although not of enormous magnitude.
59 Immediately before the relevant incident the plaintiff had commenced tree felling for the defendant. A statement from Mr Francis Tennant was placed in evidence. Mr Tennant had known the plaintiff for some 30 years and had been told of the 1999 incident. He knew of no physical effect upon the plaintiff as a result of that accident. When he engaged the plaintiff for the particular job in which the plaintiff sustained the relevant injury, Mr Tennant also had ongoing work. He has stated, “I would have had ongoing work for Greg”. The plaintiff has sworn that Mr Tennant offered him ongoing work, but this did not eventuate because of the accident.
60 It was not suggested that the plaintiff has undergone any form of training or rehabilitation, or has refused same. As leave is not sought in relation to pecuniary loss damages, s.134AB(38)(g) is not applicable and no submission concerning it was advanced.
Ruling
(i) Injury to the cervical spine 61
It is to be remembered that the plaintiff’s application is based upon two separate injuries arising out of the one incident. It was agreed that they are not to be aggregated, and this proposition would seem to accord with existing authority. I shall deal with them separately, firstly, considering the injury to the cervical spine.
62
Whilst the plaintiff is an unusual man and this is something of an unusual case, I am of the view that, on balance, he has discharged the burden of proof and is entitled to leave to bring proceedings for pain and suffering damages. I have arrived at this conclusion for the following reasons which are not listed in order of importance or significance:
(a)
Not all medical examiners have distinguished clearly between the two injuries. However, Mr Dohrmann, neurosurgeon, in his comparatively recent report has focussed his attention primarily upon the neck injury. As he has stated, “Treatment of the shoulder complaints lies within the province of orthopaedic surgery”. Mr Dohrmann has stated that the falling tree branch struck the plaintiff on the top of the head, forcing the neck into acute flexion, which was the likely cause of the fracture of the body of the C2 vertebra, as well as aggravating pre-existing cervical spondylosis. He regarded the plaintiff as being unlikely to be able to ever return to his pre-injury work capacity, and, as I read his report, this is because of the neck injury. He considered the plaintiff to be unfit for full-time work either as a fencing contractor or a sheep shearer, and regarded such incapacity as permanent. He believed that the plaintiff’s hours of work in such occupations would be something “well less than 50% of normal capacity”. He also stated that the plaintiff was likely to continue experiencing all of the symptoms and limitations described in the report for the foreseeable future. Thus, Mr Dohrmann views the neck injury as being of sufficient magnitude to prevent the plaintiff from ever engaging in the occupations which he has pursued unless his hours of work were something well less than 50 per cent of his normal capacity.
True it is that the plaintiff has a somewhat patchy work record, and this may have been for a variety of reasons. However, I accept that his battle with alcohol has been mostly successful. I accept that he had recovered from the 1999 incident to the extent that he was near normal when the 2003 accident occurred. I also accept that, had the 2003 accident not happened, the defendant did have ongoing work for the plaintiff. The neck injury has deprived the plaintiff of the opportunity to engage in such work on anything other than a sporadic “a few days at a time” basis. He has been permanently deprived of the capacity to engage in the occupational pursuits with which he is familiar on a full- time basis and of the enjoyment, satisfaction and other benefits attached to that. That the plaintiff has at all times since the injury been keen to work is something that I accept.
(b)
Dr Johnson, the plaintiff’s treating general practitioner, understandably has not always differentiated between the two injuries when reporting. Nevertheless, he has referred to the fact that the plaintiff has persistent neck and shoulder pain secondary to a disc bulge in the cervical spine. His report of 25 May 2007 includes the observation that the plaintiff was always going to be troubled by exacerbation of pain caused by twisting or rotatory movements of the neck and recurrent use of the left arm. Dr Johnson’s report of 27 July 2009 includes the observation that he would anticipate that any form of physical labour would exacerbate the plaintiff’s pain in his neck and arm.
(c)
The plaintiff has stated in evidence that he gets pain in the neck and shoulder from shearing. The plaintiff has sworn that he never has a day when he is free from pain, and that on occasions it can be quite severe but he just puts up with it and keeps on going. Given the nature of the contents of the affidavit and the context in which the above appears, it seems to me quite clear that the plaintiff was referring to pain emanating from both the neck and the shoulder. Never having a pain-free day and experiencing pain upon physical exertion seem to me to be consequences of magnitude.
(d)
The injury to the neck has certainly contributed to very substantial interference with the plaintiff’s sleep. In his affidavit of 31 January 2011 the plaintiff swore that he still wakes every night as a result of neck and shoulder pain. He wakes after a couple of hours due to pain and usually gets up and walks around the house. He sits in his recliner and tries to doze. He gave more detailed evidence in the witness box. He stated that he goes to bed at 8pm but might be awake again at 10.30. It then takes him until 1 or 2am to settle down and then he awakes again with a similar sort of pain at about 6 or 7 in the morning. He described this is as occurring every night, and, when asked, specifically identified pain in the neck as the cause of his waking at 10.30pm, although also referring to “pain down in my neck and in my arm”. Whether by this he meant radiating pain is not entirely clear, but he earlier specified pain in the neck as being the thing that woke him at approximately 10.30pm. Whilst admitting in cross-examination that he had experienced similar problems after the 1999 incident, he added that sleep interruption following it had “settled down in a period of time”.
Interference with sleep of the magnitude described by the plaintiff, and occurring on a nightly basis, is an importance consequence. The significance of such a consequence was referred to by Maxwell P in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 as follows:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. Mr KcKinnon often experiences multiple painful awakenings in the course of a single night. As his counsel submitted, that is properly to be regarded as constituting a very considerable diminution in Mr McKinnon’s enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
I note that in the recent decision of the Court of Appeal in Sutton v Laminex Group Pty Limited [2011] VSCA 52, chronically disturbed sleep patterns were again a factor which received attention when the Court was examining those consequences which led it to the conclusion that the appellant plaintiff had satisfied the statutory requirements in relation to pain and suffering. I accept that the plaintiff in the present case suffers chronically disturbed sleep patterns on a nightly basis and that his neck injury is a primary cause of this.
(e)
In his affidavit material the plaintiff referred to the deterioration in sexual relations with his wife and this is confirmed by her affidavit. She had sworn that there was no such difficulty prior to the second accident in 2003. The affidavit material would indicate that neck pain is implicated in this consequence. I note that the plaintiff’s wife has sworn that, after the second accident, it is the plaintiff’s neck pain that has given him the most trouble. The plaintiff’s wife has since left him and they remain separated. I note that, when the plaintiff saw Dr Epstein on 7 July 2009, the relationship between the plaintiff and his wife and children was deteriorating as at that time. I would regard the interference with the plaintiff’s sex life as being another consequence of importance.
(f)
True it is that the plaintiff is not attending a doctor on a regular basis and takes no medication. However, he impressed me as a stoic individual. He has accepted that there is little that can be done for him and that he must just put up with the pain. He has also found that anything stronger than over-the-counter medication “knocks me about” and even the taking of medication which is readily available did not agree with him. Observations concerning stoicism are to be found in a number of the authorities, and are referred to again in the recent decision of the Court of Appeal in Sutton. It may be that the plaintiff has had minimal treatment and medication in recent times and has performed some work, but in my opinion the plaintiff is entitled to be considered as stoic. If that be so, and as remarked upon by Tate JA in Sutton, he is not thereby to be treated less favourably. It is his pain and consequences of injury concerning which he is stoical.
(g)
Mr Scanlon referred in passing to the decision of the Court of Appeal in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292. The comments of Chernov JA in relation to the capacity of an injured person to return to alternative employment and the impact of that upon pain and suffering consequences are frequently referred to in cases such as this. However, those remarks have since received attention in Stijpic v One Force Group Pty Ltd [2009] VSCA 108, and more recently in Sutton. In my opinion, the observations of Chernov JA do not impact adversely upon the plaintiff’s present application. I have already commented upon the fact that the plaintiff seems to have returned to the sporadic performance of labouring work and apparently in the face of medical advice. However, the duration for which he can do this is limited and he has not been able to pursue the opportunity to take up ongoing work with the defendant. In the circumstances, I am not of the opinion that the work which he has done is a factor which militates against him.
(h)
I am aware of those authorities which point out that the significance of what has been lost may be informed, to an extent, by what is retained – see the judgment of Ashley JA in Dwyer v Calco Timbers Pty Ltd (No.2) [2006] VSCA 292. The plaintiff still engages in some of the fishing and hunting activities in which he was involved pre-injury. As discussed, he has retained the ability to engage in some farm labouring activities such as shearing, fencing and tree felling, albeit that these may be subject to the reservations previously mentioned. However, these retentions do not outweigh what is lost so as to defeat the plaintiff’s application. What has been lost by reason of the neck injury is sufficient to meet the statutory test.
(i) There is demonstrated pathology in the plaintiff’s neck. I would refer again to what is contained in the reports of, for example, Mr O’Brien, Mr Dohrmann and Dr Johnson.
(ii) The injury to the left shoulder
63 As I understand it, if a plaintiff is successful in obtaining leave in respect of one injury received in a particular incident, the gateway is then open in respect of all injuries received in that incident. Nevertheless, I am of the view that it is appropriate to assess the injury to the left shoulder separately. As both injuries contribute to a number of the consequences, it is inevitable that there will be a certain amount of overlapping.
64 In my opinion the plaintiff has also discharged the burden of proof in respect of the injury to the left shoulder. I am of that opinion for the following reasons which are not listed in order of importance or significance:
(a)
Clear pathology in the left shoulder was established by the MRI of 16 June 2004 which, in the opinion of the operating surgeon, Mr Byrne, showed multiple areas of problems. This resulted in surgery to the left shoulder as previously described. Unfortunately, the surgery was not successful in alleviating symptoms. Incidentally, Mr Scanlon, in his closing address, described the surgery performed by Mr Byrne as a “mini intervention” and a “mini operation”, stating that it had been described in this way. However, upon looking at the report of Mr Byrne, it seems to me that what he was saying was that a delamination involving the supraspinatus was noted and this was repaired using “a mini-open technique”. I am not entirely sure as to what this means, although one could hazard a guess that it has something to do with the size of the incision required as opposed to the complexity or seriousness of the operation. In any event, the surgery undertaken was a repair of the rotator cuff tear as well as a decompression.
(b)
In his closing address, Mr Scanlon also submitted that the surgery had a good result, mentioning retained capacities. I do not agree that the surgery had a good result. Firstly, despite the surgery, Mr Byrne expressed the view a short time after it that it was unlikely that the plaintiff would return to heavy, labouring-type activity in the long-term. Secondly, Dr Johnson, in his report of 28 April 2006, noted that, following the surgery, the plaintiff continued to have some reduction in the range of movement in the shoulder, and in his report of 25 May 2007 referred to the plaintiff as suffering from chronic left arm, shoulder and neck pain. In his report of 27 July 2009 he stated that the plaintiff’s work capacity was such that he was unable to perform any vigorous labour which would require use of the left arm.
(c)
To Mr Brearley the plaintiff said that, after the operation, there was “some minimal improvement only”. He also told Mr Brearley that, since the shoulder operation, he had made attempts to return to work doing what he thought was suitable work with different companies, but in each case, after a week or less, he would have to cease because of left shoulder and neck pain. He told Mr Brearley that he had discomfort in the shoulder constantly, and pain in the shoulder and arm when he used the arm for heavy or repetitive purposes. Mr Brearley expressed the opinion that the plaintiff had been left with residual stiffness and pain in the shoulder. To Dr Michael Epstein the plaintiff referred to “ever present pain” in the neck, left shoulder and arm. To Professor Ponsford he complained of ongoing pain in the neck and shoulder and, whilst Mr Dohrmann was focussing primarily upon the neck injury, he observed that the plaintiff had suffered a significant injury to the head, neck and shoulders, and particularly to the left shoulder.
Dr David Fish, examining on behalf of the defendant, reported on 8 July 2009 that the plaintiff still had problems with his left shoulder with weakness around it and constant pain over the anterolateral shoulder and upper arm with pain in the trapezius. The plaintiff complained of restricted motion in the left shoulder and more pain with movement. Upon examination, Dr Fish noted a dropped left shoulder and recorded that the range of motion in the left shoulder was significantly restricted. His conclusion was as follows:
“He has had significant left rotator cuff dysfunction, which has been surgically treated. He still has significant left rotator cuff problems.”
To Dr Paul Kornan, also examining on behalf of the defendant, the plaintiff referred to ongoing symptoms of pain in the shoulder, which pain was present everyday. Dr Wodak referred to the fact that the symptoms associated with the disruption of Mr Parker’s shoulder and the degenerative changes in his neck may make it difficult for him to carry out the heavy manual work in which he had always been employed.
Mr John Bourke, orthopaedic surgeon, examining on behalf of the defendant on 7 February 2006, obtained a history that the plaintiff was suffering from pain in the top of the shoulder blade, into the body of the shoulder blade and then down the front of the shoulder to the arm and in particular, to the inner aspect of the anti-cubital fossa. He also noted some collapsing weakness of the left arm. Mr Bourke noted:
“He has had surgery to the left shoulder and as predicted
by Mr Kierce, it had no effect on his pain.”
In summary, it does not seem to me that the surgery to the left shoulder has produced a good result. The plaintiff has been left with chronic and ongoing daily pain and restrictions.
(d) I would refer to and repeat the observations which I have made in relation to the plaintiff’s neck injury concerning the importance and significance of chronic, daily pain as a consequence of injury. Further, whilst many of the medical examiners have not attempted to make separate assessments of the relative contributions of the shoulder and neck injuries to the restrictions from which the plaintiff suffers, it is quite apparent that the shoulder injury, along with the neck injury, makes a significant contribution to these. In addition to the plaintiff’s chronic pain, I would refer to such matters as his inability to engage in his previous types of employment on anything other than a short-term or restricted basis; the important factor of sleep interference; and the equally important factor of marital relations. Further, it is not argued that the shoulder injury represented an aggravation of any pre-existing condition. The plaintiff’s left shoulder had not been a source of pain or productive of restrictions and symptoms prior to the relevant injury. 65 In summary, the consequences of the injury to the plaintiff’s left shoulder are sufficient to meet the statutory test.
Conclusion
66 The plaintiff is successful in relation to both injuries upon which reliance is placed. He has discharged the burden of proof. Leave is granted to him to bring proceedings in respect of pain and suffering damages. I shall hear the parties as to any ancillary orders that are required.
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