Pawsey v Southern Group Services Pty Ltd
[2016] VCC 1838
•7 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-05740
| JODI MAREE PAWSEY | Plaintiff |
| v | |
| SOUTHERN GROUP SERVICES PTY LTD | Defendant |
---
JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 and 4 November 2016 | |
DATE OF JUDGMENT: | 7 December 2016 | |
CASE MAY BE CITED AS: | Pawsey v Southern Group Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1838 | |
REASONS FOR JUDGMENT
---
Subject: Accident Compensation
Catchwords: Right shoulder injury - pain and suffering consequences
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Woolworths Ltd v Warfe [2013] VSCA 22; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Philippiadis v TAC [2016] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd [2007] 17 VR 592; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 51; Bedeux v TAC [2016] VSCA 127; Browne v Dunn (1894) 6 R 67; Dwyer v Calco Timber (No 2) [2008] VSCA 260
Judgment: Application dismissed
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Pierorazio | Gibney & Gunson |
| For the Defendant | Ms M Britbart QC | Lander & Rogers |
HER HONOUR:
Preliminary
1 The plaintiff was employed by the defendant as a school cleaner and, on 23 July 2009, whilst putting on a vacuum cleaning backpack, she suffered pain in her right shoulder.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). The application is made under sub-section (a) of the definition contained in s134AB(37) and the plaintiff seeks leave to claim damages for pain and suffering only. The body function said to be impaired is the functioning of her right shoulder.
3 Mr G Pierorazio of counsel appeared for the plaintiff and Ms M Britbart QC and Mr T Storey of counsel appeared for the defendant.
4The defendant accepted that the plaintiff had suffered a right shoulder injury in the course of her employment, but disputed that the consequences arising from its impairment were at least very considerable.
5Only the plaintiff was called to give evidence and she was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
Relevant background
6 The plaintiff is 48 years of age. She lives with her husband, from whom she is separated, and her 17 year old daughter. The plaintiff completed school to Year 10, before obtaining employment in numerous positions, including both clerical and administrative roles.
7 In 1999, the plaintiff’s daughter was born, after which time she remained at home for several years to care for her. During that time, the plaintiff worked from home for a short period as a nail technician, but earned very little income from it.[1]
[1]Transcript (“T”) 11, Line(s) (“L”) 13
8 The plaintiff has suffered longstanding gynaecological problems involving significant pain in her pelvis. In approximately 2002, her general practitioner, Dr Geoff Williams, from the Federation Clinic, referred the plaintiff to pain medicine specialist, Dr Brett Todhunter, who prescribed Methadone medication, 60 milligrams per day, as relief for the pelvic pain.[2] By December 2002, the plaintiff’s dose increased to 70 milligrams per day[3] and, in December 2004, it was increased to 80 milligrams per day.[4]
[2]Plaintiff’s Court Book (“PCB”) 119
[3]Exhibit 3, page 119
[4]Exhibit 3, page 112
9 The plaintiff attended upon Dr Williams on numerous occasions between 2004 and 23 July 2009, having exceeded her Methadone dose, and requiring an earlier script. Such attendances had been on 3 December 2004, 5 January 2006, 22 June 2006, 19 July 2006, 26 April 2007, 13 March 2008, 9 May 2008, 22 August 2008, 29 May 2009 and 20 July 2009.[5] I note the last time she exceeded her Methadone dose, was three days prior to her work injury.
[5]Exhibit 3, pages 98-112
10 The plaintiff accepted that she would sometimes take more medication than had been prescribed, and that Dr Williams would counsel her against exceeding the daily dosage of Methadone.[6]
[6]T16 L23-24
11 The plaintiff said that she reached a period whereby she received reasonable pain relief from the Methadone, such that she was able to undertake activities around the home, and in her garden. She also said she enjoyed activities such as water skiing, canoeing, tennis, squash and golf. The plaintiff said that some days when her pelvic pain was especially bad, she would not be able to do these activities, but otherwise claimed that she continued to do them.[7]
[7]T17-19
The injury and its consequences
12 In October 2008, the plaintiff commenced employment with the defendant, working part-time as a school cleaner. On or about 23 July 2009, during the course of her employment, the plaintiff claimed that she suffered an injury to her right shoulder, whilst trying to strap a vacuum cleaner to her back. The plaintiff said that whilst attempting to put her right arm through the loop of the backpack-style straps, she felt severe pain in her right shoulder.[8]
[8]PCB 2
13 The plaintiff continued working until approximately 17 August 2009, at which time she attended the Federation Clinic and sought treatment in relation to her ongoing right shoulder pain. On this occasion, the plaintiff was unable to obtain an appointment with Dr Williams, and instead saw general practitioner, Dr Sarah Veitch.[9] The clinical record of this attendance is as follows:
[9]Exhibit 3, page 97
“Work injury as indust school cleaner.
3.5 weeks ago.
Lifting a backpack vacuum cleaner w R arm, to put on back.
Sudden sharp pain R anterior shoulder.
Not too bad for few days worsening arm.
Worsening arm pain.
Rest did not help with 6 d off last week.
On Methadone already for chronic pelvic pain/adhesions
Which is helping to a degree.”[10]
[10]Exhibit 3, page 97
14 Dr Veitch arranged for the plaintiff to undergo an x‑ray and ultrasound of her right shoulder, and recommended the plaintiff discuss undertaking modified duties with her employer.[11]
[11]Exhibit 3, page 97
15 The x‑ray taken on 24 August 2009, was reported as normal,[12] whilst the ultrasound taken on 27 August 2009, indicated some thickening of the subdeltoid-subacromial bursa with impingement on abduction.[13]
[12]PCB 44
[13]PCB 45
16 On 31 August 2009, the plaintiff underwent an ultrasound-guided right subacromial injection.[14]
[14]PCB 46
17 The plaintiff said she consulted Dr Veitch in relation to her right shoulder injury, and continued to see Dr Williams to obtain regular prescriptions for Methadone. Dr Veitch prescribed the plaintiff Voltaren, and subsequently Valium, Endone, and Endep.[15]
[15]PCB 53
18 Dr Veitch referred the plaintiff to orthopaedic surgeon, Mr Jeremy Kolt, who first examined the plaintiff in November 2009. Dr Kolt noted that her shoulder was “extremely irritable which limited the physical examination”. He considered the plaintiff was likely to suffer calcific tendonitis of the right shoulder which he considered usually took 18 to 24 months to resolve.[16] Mr Kolt then recommended that the plaintiff undergo a further subacromial injection of Cortisone and local anaesthetic.
[16]PCB 57
19 On 27 November 2009, the plaintiff underwent a further ultrasound-guided right subacromial bursa injection,[17] which she said assisted in relieving her pain for approximately three to four weeks.[18] At about this time, the plaintiff obtained physiotherapy treatment from Ms Katie Bourke at Health Focus Physiotherapy in Wodonga.[19] The plaintiff said that she obtained little benefit from this physiotherapy and therefore did not continue with the treatment.[20]
[17]PCB 47
[18]PCB 59
[19]PCB 84
[20]T22 L10-16
20 On 24 March 2010, the plaintiff underwent a third ultrasound-guided right subacromial bursal injection.[21]
[21]PCB 50
21 On 20 May 2010, the plaintiff consulted Dr Williams and stated that she had been taking extra Methadone, as her shoulder was painful.[22] Soon after, he increased her dosage to 100 milligrams of Methadone per day.[23]
[22]Exhibit 3, page 87
[23]Exhibit 3, page 86
22 The plaintiff continued in her employment with the defendant, working modified duties for a period of time. The plaintiff could not recall when she ceased working for the defendant.[24]
[24]T12 L17-26
23 On 1 June 2011, the plaintiff was reviewed by Mr Kolt, who noted that although she had obtained some relief following a subacromial injection in 2010, her pain had since “crept back”.[25] Mr Kolt recommended that the plaintiff undergo a further x‑ray and an MRI scan of her right shoulder.
[25]PCB 61
24 On 18 October 2011, an x‑ray and an MRI scan were taken of the plaintiff’s right shoulder. Both demonstrated evidence of calcific tendonitis in the infraspinatus, but showed that the size of the deposit had decreased.[26] The findings were consistent with associated subacromial bursitis.[27]
[26]PCB 51-52
[27]PCB 62
25 Mr Kolt considered the x‑ray and MRI scan findings to be consistent with ongoing subacromial bursitis, and recommended that the plaintiff undergo a further ultrasound-guided injection. However, this was never subsequently performed. The plaintiff has not seen Mr Kolt since November 2011.[28]
[28]T20 L30-31, T2 L1
26 In approximately March 2012, the plaintiff obtained part-time work with another cleaning company.[29] She said she was better able to cope with this work, as the cleaning duties were lighter than those she had been required to perform for the defendant, whilst on modified duties.[30]
[29]PCB 67
[30]T13 L6-15
27 The plaintiff’s last attendance on Dr Veitch was on 8 April 2013. Since that time, she has continued to be treated by Dr Williams. As had occurred prior to suffering her right shoulder injury, the plaintiff, on occasions, exceeded her Methadone dose, and sought an earlier script.[31] On such occasions, the plaintiff was again counselled by Dr Williams for exceeding her daily dose.
[31]Exhibit 3, pages 73 to 80, 86 to 87, 100, 107, 109 and 112
28 Dr Williams referred the plaintiff to Dr Todhunter, whom she had previously seen in relation to pelvic pain. Dr Todhunter reviewed the plaintiff on 15 March 2012, and noted that she had increased her Methadone dose to 100 milligrams a day. Dr Todhunter noted that, while the plaintiff’s shoulder pain affected her functioning more than her pelvic pain, she was managing to cope.[32] Dr Todhunter recommended the plaintiff continue on her current dose of Methadone, but further recommended that she be referred to her gynaecologist for a hysterectomy. He hoped this procedure would significantly improve the plaintiff’s pain, such that she would be weaned back from her Methadone.[33] However, the plaintiff did not return to see her gynaecologist.[34]
[32]PCB 67
[33]PCB 67
[34]T64, L2
29 In August 2013, Dr Todhunter noted the plaintiff continued to suffer right shoulder pain, together with ongoing abdominal pelvic pain. Dr Todhunter then recommended the plaintiff commence Lyrica to treat the plaintiff’s neuropathic pain, which he considered related to both the shoulder and the abdomen.[35] In cross-examination, the plaintiff stated that, it was her belief that she had been prescribed Lyrica for only her shoulder pain.[36]
[35]PCB 68
[36]T39 L17-19, T67 L30-31
30 In approximately August 2013, the plaintiff obtained employment with retail business Price Attack, with such employment arranged by Sureway, an agency associated with Centrelink. The plaintiff said she worked three shifts per week, totalling about 15 hours per week. During this time, the plaintiff said that due to her right shoulder pain, she had difficulties holding out an EFTPOS machine for customers to use, as well as stocking the shelves.[37] She said she complained about this to her supervisor, as well as to her case manager at Sureway.[38] At the end of the six month contract the plaintiff ceased employment.
[37]T43 L14-23 and L26-27
[38]T43 L8-11 and T72 L11-25
31 On 3 September 2013, the plaintiff attended upon Dr Williams regarding arrangements for obtaining a Methadone script. His record also stated “may see me later, or someone else (sic) re ongoing WorkCover shoulder injury”.[39] This note was made while the plaintiff was working at Price Attack, but it does not appear that she had a further discussion with Dr Williams regarding her shoulder injury for a considerable period of time.
[39]Exhibit 3, page 71
32 On 20 January 2014, the plaintiff attended upon Dr Williams, who recorded that she was to pick up her Methadone script on Mondays for the next few weeks, due to staff changes at her work.[40] He did not record any difficulties which the plaintiff alleged she was having at that time with her work at Price Attack.
[40]Exhibit 3, page 70
33 On 17 March 2004, the plaintiff consulted Dr Williams and his note stated “no change in situation?? What happened re pain management program”.[41] There is no reference to the plaintiff’s right shoulder in this attendance note.
[41]Exhibit 3, page 70
34 On 15 September 2014, Dr Todhunter noted that the plaintiff’s pelvic pain had been stable, and that her shoulder pain was less of a problem than when previously reviewed. It was noted that Lyrica had made a significant difference to her pain, and had enabled the plaintiff to reduce her Methadone to 90 milligrams per day. The plaintiff agreed that the Lyrica had helped improve her shoulder pain, in particular, the intensity of such pain, and that it had given her a better lifestyle.[42]
[42]T40 L24-25
35 On 15 April 2015, the plaintiff consulted Dr Williams, discussed her Methadone script and obtained a further referral to Dr Todhunter. Dr Williams’ note recorded “for injection/block R shoulder with Dr T tomorrow”.[43]
[43]Exhibit 3, page 66
36 On 21 April 2015, Dr Todhunter performed a pulsed radio frequency lesion of the plaintiff’s right suprascapular nerve.[44] The plaintiff said the injection did not help her right shoulder pain.[45]
[44]PCB 71
[45]PCB 12
37 On 16 October 2015, the plaintiff attended Dr Williams and reported that she was to see Dr Todhunter again. She required a higher dose of Lyrica to assist with her shoulder pain.[46]
[46]Exhibit 3, page 61
38 On 23 August 2016, Dr Todhunter noted that in January 2016, the plaintiff had suffered an episode of unconsciousness lasting three to four days, which, at the time, had been attributed to Lyrica. Dr Todhunter, however, felt it was more likely related to the Methadone[47] and recommended increasing the plaintiff’s Lyrica dose, whilst reducing the Methadone to 80 milligrams per day.[48]
[47]PCB 72
[48]PCB 72
39 The plaintiff also undertook two courses, both of which were arranged by Sureway. The plaintiff said that the first course, a Certificate III in Business, went for about eight months and required her to complete modules as they were sent to her. She then subsequently completed a Certificate III course in Beauty, which went for about six months. The plaintiff said that initially she did not pass the course, as she was too slow to perform the services, but with special adjustments, however, she ultimately received the certificate.[49]
[49]T57 L8-12
40 Approximately six months ago, the plaintiff attempted to establish her own nail business at home. She had three to four friends attend her home over a six week period, whom she did not charge, as she sought simply to give the business a trial run. She said the business did not succeed, as she suffered increased pain in her right shoulder performing the manicures, and found that she worked too slowly for it to be a realistic service to offer paying customers.[50]
[50]T60 L26-31, T61 L1-2
41 In her most recent affidavit, the plaintiff stated the following:
“To this day I continue to suffer from ongoing and constant pain in my right shoulder which can vary in severity depending on activity. In addition, I suffer from restricted movement in my right arm. The pain travels from the top of my right shoulder down into my right upper arm. I have difficulty lifting my right arm above head height.”[51]
[51]PCB 11
42 The plaintiff claimed that her right shoulder injury affects her ability to sleep most nights, and that she wakes if she rolls onto her right shoulder, which she estimated to occur on average five times a night.[52]
[52]PCB 12
43 The plaintiff claimed that her right shoulder injury prevented her doing activities such as golf, canoeing, tennis and squash.[53]
[53]PCB 13
44 The plaintiff also claimed that due to her inactivity, she has gained approximately 25 kilograms in weight.[54]
[54]PCB 13
45 The plaintiff further claimed that she is restricted in the activities she can perform in her home, such as cleaning and gardening duties.[55]
[55]PCB 14
46 The plaintiff currently takes 80 milligrams of Methadone per day and 300 milligrams of Lyrica per day.[56]
[56]PCB 12-13
Medico-legal evidence
47 The plaintiff’s solicitors arranged for the plaintiff to be examined by orthopaedic surgeon, Mr John O’Brien, in March 2013 and February 2016. In his first report dated 6 March 2013, Mr O’Brien noted that the plaintiff’s physical signs demonstrated marked restriction of movement of her right shoulder due to pain and accompanying tenderness.[57] He considered the plaintiff had chronic right shoulder pain related to persistent rotator cuff tendinopathy, and thought she was incapable of returning to her pre-injury duties.[58]
[57]PCB 32
[58]PCB 32
48 In his subsequent report, dated 15 February 2016, Mr O’Brien obtained a history that the plaintiff experienced constant pain over the anterior, superior and lateral aspects of the right shoulder and that such pain was aggravated by movement of the right arm, even when undertaking activities such as dressing and toileting. He noted that the plaintiff was unable to elevate her right arm, and that any attempt to lift it aggravated the pain.[59]
[59]PCB 39
49 Upon a physical examination of the plaintiff, Mr O’Brien noted that:
“… right shoulder flexion was 90 degrees, with 80 degrees of abduction, extension was 30 degrees, with 20 degrees adduction, some 60 degrees of internal rotation and 70 degrees of external rotation.”
50 He considered there to be some generalised weakness in all muscles of the right upper limb. Mr O’Brien concluded that there:
“… was definite restriction of flexion and abduction of the shoulder without any evidence of true impingement. Movements of the shoulder, in particular rotation, are minimally limited.”[60]
[60]PCB 40
51 Mr O’Brien considered that the plaintiff was likely to be suffering chronic rotator cuff tendinopathy and subdeltoid bursitis.[61] He stated that, as there had been no reported change in her symptoms for the past three years, the plaintiff’s condition was stable, and it was likely she would remain on Methadone and Lyrica to help her chronic shoulder pain.[62]
[61]PCB 40
[62]PCB 40
52 Finally, Mr O’Brien concluded that the plaintiff had the capacity to undertake suitable light employment, on a limited hour basis.[63]
[63]PCB 41
53 The plaintiff also relied upon medical reports of Dr James Rowe, occupational physician, who examined the plaintiff for the statutory WorkCover insurer in July 2011 and November 2012, for the purpose of determining the plaintiff’s entitlement to lump sum compensation under s98C of the Act. In his report dated 13 November 2012, Dr Rowe noted:
“…wasting of the right upper arm, her measured range of movement in the right shoulder was abduction to 90 degrees, adduction to 20 degrees, flexion to 130 degrees, extension to 20 degrees, internal rotation was zero, and external rotation was 60 degrees.[64]
[64]PCB 24
54 Dr Rowe considered the plaintiff had suffered an internal derangement in her right shoulder, with calcification and a mild frozen shoulder.[65]
[65]PCB 25
Plaintiff’s credibility
55 The defendant did not tender any medico‑legal reports, and instead sought to defend the case predominantly on the basis of the plaintiff’s credit, and on the basis that the consequences to her were not as serious as she alleged. Ms Britbart submitted that the plaintiff was not a reliable witness, and that she had significantly overstated the pain and restrictions she suffers in her right shoulder.
56 The defendant’s attack on the plaintiff’s credit focussed on what it alleged to be selective editing of the plaintiff’s Facebook page, shortly prior to the hearing of this application. It also relied upon video footage, which the defendant alleged was inconsistent with the plaintiff’s allegations of ongoing restriction in the movement of her right shoulder.
57 The defendant tendered two extracts from the plaintiff’s Facebook page, the first of which was printed on 13 September 2016,[66] the second of which was printed on the day of hearing.[67] Several posts, which had been set as viewable by the public and which appeared on the plaintiff’s Facebook page on 13 September 2016, were no longer visible on the extract from the day of the hearing. I have seen the posts which have since been removed. They included posts which referred to the plaintiff’s trip to the United States in June 2015, a post promoting the plaintiff’s nail business in September 2016, as well as several posts which showed the plaintiff on holiday in the USA and France.
[66]Exhibit 4
[67]Exhibit 5
58 Mr Pierorazio submitted that several other posts had also been deleted, including innocuous photos of flowers and dogs, a Christmas image, and a motor car race.
59 The plaintiff said that she often deleted posts from her Facebook page.[68] However, she could not recall deleting any posts in the last six weeks relating to her trip to America in June 2015,[69] or to the promotion of her nail business.[70] The plaintiff thought she may have changed those posts, such that they were viewable only to accepted Facebook friends, and not to the public.[71]
[68]T47 L6-8
[69]T47 L16
[70]T49 L3
[71]T51 L17-19
60 The plaintiff offered no explanation as to why these posts were no longer viewable to the public.[72] As it is her own private account, for which she is the administrator, only the plaintiff could have deleted the posts or changed the status of such posts to be private.
[72]T49 L12-14
61 I consider it likely that the plaintiff removed such public posts, to minimise the viewing of things she considered may harm her case. I do not accept that the changing of such posts within the last six weeks is something that the plaintiff would have forgotten. I consider her evidence in respect of the removal of these Facebook posts to be entirely unsatisfactory, and I consider her inability to recall deleting or changing such posts to be disingenuous.
62 The defendant also sought to rely upon video footage of the plaintiff taken at a music festival in the United States on 20 June 2013, together with video surveillance taken of the plaintiff in June 2016.
63 The footage of the plaintiff on 20 June 2013 had been previously accessed from the plaintiff’s Facebook page, but the post had since been removed.[73] The footage showed the plaintiff with two friends at a music festival, during which the plaintiff is seen to be dancing and raising both arms above her head whilst joking around with her friends. Although it is only a very brief clip, it shows no obvious signs of restriction or pain in the plaintiff’s right shoulder.
[73]T64 L27 to T65 L5
64 The video surveillance taken of the plaintiff on 10 June 2016, covered a period of approximately 2 hours, and involved 23 minutes of footage. It showed the plaintiff at a shopping centre, as well as getting into her car on two occasions. In an early part of the video, the plaintiff is seen taking medication while sitting in her car. The plaintiff then enters a shopping centre and spends a considerable period of time within a department store, purchasing items for the nail business she was planning to establish. The plaintiff is seen with her arms outstretched at shoulder height, on multiple occasions, whilst inspecting and then subsequently folding towels of varying sizes. The plaintiff then reached for a lamp, which was on a shelf above shoulder height. She initially reached up with her right arm and then used her left arm. The plaintiff then proceeded to look at some clothes, and again reached out with her right arm. She repeatedly used her right arm in an outstretched position when scanning items and putting them into her trolley. The plaintiff then proceeded to use both arms to put the shopping bags into her car.
65 At no point throughout the entirety of the 23 minutes of video surveillance, does the plaintiff appear to have a restriction of movement in her right shoulder or does she demonstrate that she is suffering any pain. In cross-examination, the plaintiff agreed with this observation.[74] To the contrary, she demonstrated a free range of movement, including multiple occasions when her right arm was outstretched, showing a full range of movement with forward flexion to above 90 degree and abduction to above 90 degrees . Although the video footage is a tiny snapshot of the plaintiff’s life, it contained multiple instances in which the plaintiff moved her right shoulder in an outstretched way with no apparent restriction of movement. At no stage did the plaintiff appear to avoid the use of her right arm. I consider the video footage to be inconsistent with the plaintiff’s claim that she suffers ongoing and constant pain in her right shoulder.
[74]T59 L1-24
66 In addition to the video footage, Ms Britbart criticised the plaintiff for failing to disclose the restrictions which her pelvic pain had caused in respect of her capacity to work, and ability to perform domestic and recreational duties, in the years prior to suffering a shoulder injury. In her first affidavit, the plaintiff stated that her right shoulder injury restricted her in general house cleaning, gardening, water skiing, canoeing, tennis, squash and golf.[75] In cross-examination, however, the plaintiff conceded that at times, her pelvic pain had interfered with her ability to perform such activities.[76] Ms Britbart submitted that this was a significant omission, in circumstances where a plain reading of the plaintiff’s first affidavit, suggests that there had been no prior interference in such activities prior to suffering her shoulder injury.
[75]PCB 4
[76]T18 L24-25, L30-31 and T19 L1-3, L16-17, L21
67 In assessing the plaintiff’s credibility, I have had the advantage of observing her, at close quarters, whilst under cross-examination.[77] My concern regarding the plaintiff’s evidence as to the changes in her Facebook page, together with the video evidence showing a free range of movement in her shoulder without the avoidance of activity, and with no apparent restriction or demonstrable pain, together with the plaintiff’s failure to provide a full and frank account of her condition prior and subsequent to suffering her shoulder injury, is such that I have significant reservations regarding the plaintiff’s credibility.
[77]Woolworths Ltd v Warfe [2013] VSCA 22 at [114]
Permanent
68 In order to satisfy the definition of serious injury, the plaintiff must prove the injury and its consequences are both serious and permanent.
69 I am satisfied that the plaintiff’s injury and the consequences which flow from it are permanent. The plaintiff admitted that her condition has been stable since 2011, and no treatment which has been recommended will result in a complete resolution of her pain.
Pain and suffering consequences
70 I must now consider whether the consequences to the plaintiff meet the test of “very considerable.”
71 In Haden Engineering Pty Ltd v McKinnon,[78] Maxwell P said at paragraphs 9–12:
[78](2010) 31 VR 1
“In its accepted interpretation, the ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. (I will refer to the second element as ‘the disabling effect’ of the pain.)
As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale mild/moderate/severe. Unless the pain is constant the Court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily compromise the following:
(a)what the plaintiff says about the pain (both in court and to doctors);
(b)what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c)what the doctors say about the extent and intensity of the plaintiffs pain; and
(d)what the objective evidence shows about the disabling effect of the pain.
As to (a) the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.”
72 In relation to the plaintiff’s “experience of pain”, given my concerns regarding the plaintiff’s credit, I am not satisfied that the plaintiff’s pain is as frequent or as intense as she claims, nor that it restricts her activities to the extent she claims. Given my reservations as to the reliability of the plaintiff’s account of pain, I will now have regard to the opinion of the doctors.
73 The plaintiff accepted that Dr Williams was the doctor who knew her best,[79] but said that Dr Todhunter was the doctor who had predominantly treated her shoulder injury.[80]
[79]T37 L 19-22 and T39 L5-6
[80]T61 L22-25
74 Since April 2013, the plaintiff has rarely complained to Dr Williams about her right shoulder pain. In circumstances where she consults this doctor on a very frequent basis, I find it most unlikely that, if her shoulder pain was troubling her as much as she claims, that she would not inform Dr Williams of this from time to time, and would not have sought further advice from him as to other treatment options. In particular, I note that when the plaintiff alleged she had difficulties working at Price Attack, Dr Williams made no note of her discussing this with him.
75 I appreciate that medical records usually contain only a selective summary, in the doctor’s own words, of what the patient tells the doctor. They are often highly probative, however, as they are independent and contemporaneous evidence as to the plaintiff’s medical condition.[81] Given the regularity with which the plaintiff consulted Dr Williams, I consider it very significant that in recent years there is almost no mention of shoulder pain in his records of the plaintiff.
[81]Philippiadis v TAC [2016] VSCA 1 at [105]
76 Dr Todhunter performed a procedure on the plaintiff in April 2015. Although Dr Williams noted she was to return to see Dr Todhunter in October 2005, the plaintiff did not return to see him until September 2016.
77 In Dr Todhunter’s subsequent review of the plaintiff in September 2016, his primary concern was getting her medication levels correct. His report of that time made no mention of her shoulder injury. Further, in his previous report of August 2013, Dr Todhunter indicated that the plaintiff’s need for Lyrica was in response to both pelvic pain and shoulder pain.
78 In circumstances where the plaintiff is suffering separate medical conditions, it is impermissible to aggregate the impairments,[82] and in this application I must only consider the consequences arising from the right shoulder injury.
[82]Ibid [24]
79 I consider it significant that Dr Todhunter stated that the Lyrica was for both pelvic and shoulder pain. I also consider it significant that the plaintiff had been exceeding her Methadone dose on numerous occasions prior to suffering her shoulder injury, including three days prior to suffering this injury. With these factors, it is unknown what medication the plaintiff was likely to now require for her pelvic pain, if not for the shoulder injury.
80 At a superficial level, it may be tempting to conclude that, because the plaintiff was not taking Lyrica before the shoulder injury, and she now is, that this is a consequence arising from her shoulder injury. As was recognised by the Court of Appeal in Kelso v Tatiara Meat Co Pty Ltd,[83] Sutton v Laminex Group Pty Ltd[84] and ACN 005 565 926 Pty Ltd v Snibson,[85] the need for pain medication on a daily basis raises the real prospect of a “very considerable” consequence.
[83](2007) 17 VR 592 at [199]
[84][2011] VSCA 52 at [91]
[85][2012] VSCA 31 at [71]
81 However, in this case the plaintiff had already been on significant levels of very strong pain medication for years prior to suffering her shoulder injury. The addition of Lyrica to her daily medication regime is not as significant as it would be for a plaintiff who had not previously taken daily pain medication. Further, the plaintiff did not identify any side effects arising from her use of Lyrica.
82 I note that Mr Kolt has not seen the plaintiff for several years, but when he last did, he noted the pathology in her right shoulder had decreased and he expected a reasonable improvement, with only mild ongoing disability.
83 Mr O’Brien noted some restriction of movement in the plaintiff’s shoulder, but as he did not have the opportunity to view the video surveillance, I am not satisfied he would have maintained that opinion, had he seen the relative ease with which the plaintiff used her right arm on repeated occasions in the 23 minutes of video taken in June 2016.
84 In considering the disabling effect of the plaintiff’s pain, given my concern regarding the plaintiff’s credibility, without corroborative evidence from a family member or friend, I am reluctant to accept she was as active in sporting activities prior to July 2009, as she claimed in her affidavit. In her affidavit, she stated that, at one stage of her life she had lived in a property abutting a golf course and that she used to hit almost every day,[86] but she did not state how long ago that had been, and did not state how often, prior to July 2009, she actually played golf.
[86]PCB 5
85 I also note that in the reports of Dr Rowe, Mr O’Brien, Dr Veitch, Dr Williams and Dr Todhunter, there is no mention of her shoulder injury interfering with such sporting activities. Whilst I accept that her shoulder injury would restrict her in doing these activities, I am not satisfied that these were activities she regularly performed prior to suffering her shoulder injury. I also note that her pelvic pain had also previously limited her ability to do such activities when she was having a bad day with it.[87]
[87]T19 L18-21
86 The plaintiff claimed that her shoulder pain can be aggravated by domestic and gardening duties. However, she said she is still able to do most tasks, it is just if she overdoes it, she suffers increased pain.[88]
[88]T35, L16-25
87 The plaintiff claims that her shoulder pain interferes with her sleep, and that she usually wakes from pain, about five times a night when she rolls on to her right shoulder.[89] She also claims that her weight gain of up to 25 kilograms is a consequence of inactivity arising from her shoulder injury.[90] Mr Pierorazio submitted that as the plaintiff was not challenged on either of these alleged consequences, I should accept them as at least very considerable consequences.[91]
[89]PCB 12
[90]PCB 13
[91]T109, L7-13
88 However, as was noted by the Court of Appeal in Bedeux v TAC:[92]
“It is well established that the rule in Browne v Dunn,[93] does not preclude a judge from rejecting, or giving limited weight to, the evidence of a witness, where that witness’s evidence is based on inconsistencies with other evidence at the trial or where the witness’s evidence on its face appears to be incredible or unconvincing.” [88]
[92][2016] VSCA 127
[93](1894) 6 R 67
89 No corroborative affidavit material was provided in support of either of these consequences, and sleep interference and weight gain was not referred to in the medical records of the plaintiff’s treating practitioners. Given my concerns regarding the plaintiff’s credibility, I am not satisfied that she has experienced regular sleep interference or significant weight gain, as she has claimed, as a consequence of her right shoulder injury.
90 The plaintiff claimed that about six months ago, she had attempted to set up a nail business in her home. In the video taken in June 2006, she was seen purchasing equipment for this business. The plaintiff claimed that she performed manicures on three or four friends, over a six week period, but that the business did not succeed, as performing manicures caused her considerable exertion of the right arm, she suffered considerable shoulder pain and was too slow in preforming the manicures as she had to work in a stop/start pattern.[94]
[94]PCB 10-11
91 I note that on 3 September 2016, the plaintiff was still promoting her business on Facebook,[95] which seems inconsistent with her claim that after six weeks the business failed, as she was too slow in doing manicures due to her shoulder pain. As manicuring nails would not normally involve any significant movement of the shoulder joint, I am not satisfied this is a genuine restriction for the plaintiff, and consider this an example of the plaintiff overstating the consequences of her shoulder injury.
[95]Exhibit 4, page 3
92 In assessing the seriousness of her consequences, I must consider not only what the plaintiff has lost, but also what she has retained.[96]
[96]Dwyer v Calco Timber (No 2) [2008] VSCA 260
93 The plaintiff has travelled frequently since 2009, with five overseas trips and several interstate trips. I accept that she requires assistance when moving luggage on these holidays, but otherwise she is able to go and enjoy her time away. She claimed that on one holiday, she was confined to her room for four days due to shoulder pain,[97] but this was not corroborated by her travelling companions. On another trip, the plaintiff claimed she had to go back to her room early, but she later accepted that was not due to shoulder pain, but was because she was just not feeling well. [98]
[97]PCB 14
[98]T42, L13-20
94 The plaintiff has also been able to go camping, which she has done four or five times in the last two years.[99]
[99]T30, L17-21
Conclusion
95 I note the plaintiff did not tender corroborative evidence from her husband, workmates or supervisor at Price Attack, her case manager at Sureway, her travel companions, nor the friends who were her trial customers in her nail business. It is impermissible for me to draw an adverse inference from the absence of such evidence. However, in circumstances where I have reservations as to the plaintiff’s credibility, I consider the absence of such potentially corroborative evidence leaves a void in the plaintiff’s claim.
96 In considering the totality of the evidence, I am not satisfied the plaintiff’s experience of pain and the disabling effects of her pain, are as frequent or intense as she claims.
97 The plaintiff has the burden of proving, on the balance of probabilities, that she has suffered impairment of her right shoulder as a result of the July 2009 incident, and that the impairment is both serious and permanent. For the reasons detailed above, I am not satisfied, when judged by comparison with other cases in the range of possible impairments or losses, that the consequences for the plaintiff can be fairly described as more than significant or marked and at least very considerable.
98The plaintiff’s application for leave to commence a claim for common law damages for pain and suffering fails. I shall make consequent orders.
0
9
0