Peachment v Victorian WorkCover Authority
[2020] VCC 1152
•7 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-05886
| CRAIG JAMES KEITH PEACHMENT | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 July 2020 | |
DATE OF JUDGMENT: | 7 August 2020 | |
CASE MAY BE CITED AS: | Peachment v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1152 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury to the right shoulder – whether the pain and suffering consequences of the impairment of function of the right shoulder are “serious” – surveillance film
Legislation Cited: Workplace Injury Rehabilitation And Compensation Act 2013; Evidence (Miscellaneous Provisions) Act 1958
Cases Cited:Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: The plaintiff’s originating motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R Middleton QC with Mr M K Clarke | Zaparas Lawyers |
| For the Defendant | Ms B A Myers | Thomson Geer |
HIS HONOUR:
Introduction
1 The plaintiff commenced employment with TPS Management Pty Ltd in about March 2013 as a panel beater. Over the course of his employment, he experienced pain and stiffness in his right shoulder which he says was due to the nature of the work duties he was called on to perform. On 1 May 2015, the plaintiff was lowering a very heavy tailgate with another employee of TPS Management Pty Ltd when he suffered instant sharp pain in his right shoulder.[1]
[1]Plaintiff's Court Book (“PCB”) 3
2 The plaintiff submitted that the injury has resulted in a serious permanent impairment of the function of his right shoulder. His application for serious injury was limited to the pain and suffering consequences of the impairment. The defendant submitted that the plaintiff had suffered a permanent impairment of the function of his right shoulder, but that the pain and suffering consequences fall well short of being “serious”.
Appearances
3 Mr W R Middleton QC appeared with Mr M K Clark of counsel for the plaintiff. Ms B A Myers of counsel appeared for the defendant.
4 Both parties consented to the proceeding being conducted remotely. I was satisfied that the technical requirements referred to in s42G of the Evidence (Miscellaneous Provisions) Act 1958 were met. I then directed that pursuant to s42E(1) that the parties appear, give evidence and make submissions in the application by audio-visual link.
Executive summary
5 After considering all of the evidence, in particular, the plaintiff’s oral evidence, I am satisfied that the plaintiff suffered the right shoulder injury diagnosed by Mr Shane Blackmore, orthopaedic surgeon; however, I am not satisfied that the pain and suffering consequences are “serious”.
The Plaintiff’s injury
6 There was little or no controversy between the plaintiff and the defendant relevant to the diagnosis and treatment obtained by the plaintiff. It is for that reason that I propose to provide only a short summary of the medical evidence.
7 Over the few days following the occurrence of the incident, the initial pain the plaintiff experienced in his right shoulder worsened. He saw Dr Usha Chand, general practitioner, on 8 May 2015. At that stage, he was experiencing pain in his neck and a tingling sensation down his right arm into his right hand and the fingers of his right hand. He was provided with some medication to treat the pain, was referred to physiotherapy, and for an x-ray and ultrasound, before he was referred to Mr Shane Blackmore, orthopaedic surgeon.[2]
[2]PCB 4
8 The plaintiff saw Mr Blackmore sometime in June 2015. He referred him to have an MRI scan which he considered demonstrated some subacromial impingement and some changes in the long head of his biceps without evidence of a cuff tear. He referred him to have a local anaesthetic and steroid subacromial injection.[3]
[3]PCB 58
9 Mr Blackmore reviewed the plaintiff. The plaintiff told him that he obtained ninety-five per cent relief from the injection, but after a short period, the pain returned. Mr Blackmore then advised the plaintiff to undergo surgery. The surgery was undertaken arthroscopically and comprised a subacromial decompression and sub pec tenodesis.[4]
[4]PCB 56
10 Mr Blackmore reviewed the plaintiff on 9 October 2015. In a courtesy letter written to Dr Chand dated 9 October 2015, he described what he found at surgery:[5]
“Importantly for Craig at the time of his surgery there was no significant tear of his rotator cuff which meant that his shoulder just needed a cleanup and his biceps needed to be tenodesed secondary to changes in the biceps anchor.”
[5]PCB 56
11 Mr Blackmore reviewed the plaintiff on 17 November 2015,[6] 15 January 2016,[7] 15 April 2016,[8] 19 August 2016[9] and 26 August 2016[10] according to the courtesy letters that he wrote to Dr Chand.
[6]PCB 55
[7]PCB 54
[8]PCB 53
[9]PCB 52
[10]PCB 51
12 At review on 15 January 2016, Mr Blackmore noted that the plaintiff’s anterior shoulder pain had improved significantly, however, he advised the plaintiff that his persisting pain was due to problems within the scapulothoracic articulation. He referred him to have a further injection into the underlying bursa to see if that would improve his symptoms.[11]
[11]PCB 54
13 On the next occasion that Mr Blackmore reviewed the plaintiff, on 15 April 2016, the plaintiff told Mr Blackmore that he was “extremely happy with how [his] shoulder is functioning”;[12] however, when he next reviewed him on 19 August 2016, it would appear that the relief the plaintiff experienced had worn off. Mr Blackmore then referred the plaintiff to have the MRI scan, and when he obtained the results of the MRI scan, he then reviewed the plaintiff on 26 August 2016. He was of the opinion that surgery was not indicated for the type of pain the plaintiff was experiencing. He referred the plaintiff to have osteopathic or physiotherapy treatment.
[12]PCB 53
14 The plaintiff has undergone a number of shoulder injections on 8 July 2015,[13] 2 February 2016,[14] 4 August 2016,[15] 22 February 2017,[16] 22 March 2017[17] and 10 April 2017.[18] The plaintiff described having undergone four injections; however, the clinical records tendered by the plaintiff demonstrate that he actually underwent six injections. It would appear that some of the injections were undertaken at the direction of Mr Blackmore, and others at the direction of Dr Yuk Lee, specialist in anaesthesia and pain medicine.[19]
[13]PCB 81
[14]PCB 79
[15]PCB 78
[16]PCB 77
[17]PCB 76
[18]PCB 75
[19]PCB 41-42 and 40
15 Throughout the treatment which I have summarised thus far, the plaintiff was treated by Dr Chand. He provided three reports dated 19 July 2017,[20] 24 October 2017[21] and 31 October 2018.[22] His last report summarises his treatment of the plaintiff, and treatment provided by Mr Blackmore, Dr Lee, and osteopathic treatment. None of what he referred to in that report is at all controversial. His clinical notes were also tendered. They cover consultations from 8 May 2015, when the plaintiff first attended for the right shoulder injury,[23] to 8 July 2019.
[20]PCB 25-26
[21]PCB 20-21
[22]PCB 14-15
[23]PCB 60
16 Dr Chand referred the plaintiff to Dr Lee, who saw him on 1 February 2017. He provided two reports, both dated 1 February 2017.[24] He noted Mr Blackmore’s diagnosis of a scapulocostal syndrome. He noted on examination of the plaintiff, that his range of shoulder movement was full, that he was not in pain during the examination, but some tenderness was detected in the rhomboid muscles, suprascapular tendon biceps tendon and subscapularis tendon. He recommended that the plaintiff have an ultrasound-guided suprascapular nerve block and an ultrasound-guided trigger point injection.
[24]PCB 39 and 41-42
17 It is unclear to me whether the plaintiff had the nerve block and trigger point injection recommended by Dr Lee, but I think he probably did, because the last three injections which I referred to earlier in these reasons, post-date the occasion when Dr Lee recommended that he undergo those particular procedures. There is nothing further from Dr Lee to demonstrate whether those injections were in fact the ones he recommended, and his opinion whether they were successful to any extent.
18 Dr Chand referred the plaintiff to Dr Sami Ahmad, pain management clinician. Dr Ahmad first saw the plaintiff on 28 May 2017. He provided a report bearing the same date.[25]
[25]PCB 43-44
19 Subsequently, the plaintiff was referred to Advance Healthcare for the purpose of undergoing a multidisciplinary pain management assessment. Dr Ahmad was involved in that assessment, as was a physiotherapist and a clinical psychologist. They prepared a report of their assessment dated 26 May 2017.[26]
[26]PCB 45-50
20 A subsequent report of Advanced Healthcare prepared by Mr Scott Bednarz, physiotherapist, dated 1 October 2018,[27] noted that the plaintiff attended an eight-week network pain management program which he completed on 30 August 2017. Mr Bednarz noted that the plaintiff’s brief pain inventory scores shifted from 6 out of 10 to 3 out of 10 at the time of discharge, and 1.5 out of 10 at a follow-up examination. It was my impression from the plaintiff’s evidence under cross-examination that he regarded the outcome of the pain management program to have been of significant benefit to him.
[27]PCB 30-33
21 The plaintiff has not seen Dr Chand for some time, and to the extent that he has, he is not having any active treatment save for the prescription of medication and his use of over-the-counter medication. I will refer to that medical treatment and his use of medication later in these reasons.
The medico-legal assessments
22 Mr Ash Chehata, orthopaedic surgeon, examined the plaintiff on 13 March 2018 and 17 May 2020. He provided two reports, dated 21 March 2018[28] and 4 June 2020.[29] The plaintiff concentrated on Mr Chehata’s examination and opinion referred to in his second report. He obtained a history from the plaintiff of “ongoing severe pain across the entire right shoulder” which is entirely inconsistent with the plaintiff’s evidence. He also obtained a history that the plaintiff was “performing very light and less awkward duties as a car restorationist with a very understanding employer” which again is to some degree inconsistent with the plaintiff’s evidence.
[28]PCB 64-69
[29]PCB 60-63
23 I should observe at this point that a significant amount of surveillance film was shown of the plaintiff at his present workplace. The defendant exchanged film taken of the plaintiff on 22 and 24 August 2019 and on 26 October 2019,[30] and surveillance/activity reports of PJS Investigations dated 28 August 2019[31] and 30 October 2019.[32] Neither the film nor the surveillance/activity reports were provided to Mr Chehata.
[30]The films formed part of exhibit 2
[31]Defendants Court Book (“DCB”) 61-70
[32]DCB 71-77
24 The real upshot of Mr Chehata’s opinion is that the plaintiff has developed chronic pain in his right shoulder which he described as fatigue pain. He referred to the surgery as being “a failed biceps tenodesis” which I have interpreted to mean not that the surgery was unsuccessful, but that it failed to ameliorate all of the causes of the plaintiff’s shoulder pain. He considered that the real physical impairment resulting from the injury was the plaintiff’s inability to perform overhead activities or repetitive overhead activities utilising his right arm due to the fatigue-style pain that he has experienced when he has engaged in that level of activity. He considered that the plaintiff would be permanently incapacitated for the heavy manual work involved in panel beating; however, he did not consider that the plaintiff’s symptoms affected his capacity to engage in social, recreational and domestic activities.
25 Dr Majid Rahgozar, consultant occupational physician, examined the plaintiff on 28 October 2019 and 19 June 2020. He provided two reports dated 28 October 2019[33] and 22 June 2020.[34] I propose to refer only to his second examination because he was provided with the film and the surveillance/activity reports which the defendant exchanged. His short summary of what he observed in the films appears to me to be consistent with the impressions I was left with after viewing the same films. On examination, he noted a near-normal range of movement with no other deficits. On the basis of what he observed in the films and his examination of the plaintiff, he concluded that the injury and the symptoms of it had resolved. Additionally, he concluded that the plaintiff did not have any impediment to engaging in the activities which the plaintiff referred to in his first affidavit. I will refer to those activities next.
[33]DCB 17-24
[34]DCB 25-31
The films
26 The plaintiff now works for Mr Frank Mercuri, who is a collector of all manner of cars and other vehicles. He has worked for him for the last two-and-a-half years, working 40 hours per week.[35] He has not suffered any loss of income when a comparison is made with his pre-injury income. The films were taken of the plaintiff undertaking his work for Mr Mercuri, mostly at a factory operated by Mr Mercuri.
[35]Transcript 17
27 I should start by observing that the plaintiff was shown films taken on 22 and 24 August 2019, 26 October 2019, 8 and 11 November 2019, and 15 and 19 May 2020.[36] Under cross-examination, the plaintiff agreed that what he was seen engaged upon in the films was what he is capable of undertaking. Additionally, and under further cross-examination he left me with the impression that he has returned to the majority of his pre-injury activities.
[36]All comprising exhibit 2
28 I propose to provide only a short summary of the films, because the films taken on 22 and 24 August 2019 were fairly long. They showed the plaintiff engaged in activities at his workplace, as did the other films.
29 The film taken on 22 August 2019 was very short. It showed the plaintiff getting into the driver’s seat of a utility. The film taken on 24 August 2019 was considerably longer. In summary, it showed the following:
· Between about 9.45am to about 10.00am, the plaintiff was observed at the factory premises where he works. He drove a van to the front of the factory. At various times he was on foot, driving a forklift, and driving a blue truck at the front of the factory.
· Between about 10.00am and approaching 11.00am, the plaintiff removed the tray from the back of an orange truck using a forklift. He performed a number of manual operations which did not appear to me to be particularly onerous in the course of driving the forklift and fixing the tray onto the tynes of the forklift. He then rolled two tyres, absent rims, near to the truck. He used the forklift to lower the tray onto the tyres. He then used the tynes of the forklift to lift the tray, fixing it to the tynes using an adjustable strap to hold it onto the tynes. He drove the forklift into the factory. He moved the tyres. He reversed the orange truck into the factory.
· Between about 11.30am to about 12.42pm, the plaintiff stood and walked in and about the front of the factory. He was in the company of other people. He appeared to move his arms relatively freely as far as I could see, but he did not make any provocative movements with his right arm.
· By agreement between the plaintiff and the defendant, the balance of the film was sped up. I noted that from about 12.42pm to about 3.55pm, the plaintiff did some touch-up painting to the cabin of the orange truck using a paintbrush in his right hand. He used the forklift to bring out the tray of the orange truck from the factory and place it back onto the orange truck. He then drove the orange truck.
30 The film taken on 26 October 2009 was taken between about 7.52am through to about 11.01am. It was very repetitive, in that it showed the plaintiff driving a utility. It showed him making multiple trips on foot carrying lengths of treated pine fixed together by clamps. On some occasions, he carried the lengths of treated pine over his shoulder, and on other occasions, he carried them cradled against his body under his right arm, holding the same with his hands.
31 The film taken on 8 November 2019 was taken between about 8.48am and about 1.50pm. Initially, the plaintiff was seen in a utility vehicle. He was then at the factory dealing with a purple car in the driveway of the factory, driving a forklift, and working in and around and under the car in the driveway. He was later seen with a large commercial tow-truck parked in front of a silver sportscar. Both were then seen outside the factory. He drove the red truck out of the factory. He then dealt with a Rolls-Royce at the front of the factory.
32 The film taken on 11 November 2019 was taken between about 8.37am and about 12.16pm. He dealt with a light blue car in the driveway of the factory. He dealt with the red truck, and was later observed at Bunnings carrying a length of timber.
33 The film taken on 15 May 2020 was taken between about 7.48am and about 9.49am. It showed the plaintiff driving a utility. He drove to a service station. He was observed putting on overalls.
34 The film taken on 19 May 2020 commenced at about 8.54am. What it showed that was of interest was the plaintiff carrying a number of car batteries from the back of a utility into the factory.
35 I should pause here to observe that I paid no regard at all to the contents of the surveillance/activity reports. I concentrated only on what the films demonstrated of the plaintiff’s activities.
The Plaintiff’s claimed consequences
36 The plaintiff swore two affidavits in which he set out the pain and suffering consequences resulting from the impairment of the function of his right shoulder. A comparison between what he deposed to in his affidavits and the description of those consequences given by him in his oral evidence are at odds. I propose to refer to what he swore to his affidavits, and what he said in his oral evidence to demonstrate that.
Pain
37 In his first affidavit, the plaintiff described suffering pain in his right shoulder “from time to time”. He added that engaging in strenuous activities “can worsen my pain”. He is bothered by that pain at night, which can cause him to wake. The pain has produced a lack of energy.[37]
[37]PCB
38 Under cross-examination, the plaintiff said that the pain “comes and goes” depending on what he does. It can come on through engaging in activities like driving down a bumpy road or lifting things. He added that the pain comes on if he maintains his arm above shoulder height for prolonged periods of time.[38] He said that he goes home most days with a grumbling sensation in his right shoulder which he deals with by doing the stretching exercises he was taught through pain management.[39]
[38]Transcript 14-15
[39]Transcript 17
Lifting/repetitive activities
39 In his first affidavit, the plaintiff described worsening pain if he engaged in activities involving heavy lifting or repetitive stretching movements of his right arm.
40 Under cross-examination, the plaintiff said that he can lift his arm up to wave to a friend. He can do some work overhead. The problem he has is if he works overhead for prolonged periods. At present, he will use a vehicle hoist or obtain manual assistance if he requiring use of his right arm above his head. He said that he can lift objects weighing 10 kilograms and 20 kilograms, but he would not lift something weighing 20 kilograms above head height and hold it above head height. He exercises care when lifting objects weighing 20 kilograms.[40]
[40]Transcript 15-16
41 It was very clear to me after watching the films that the plaintiff is capable of lifting and carrying heavy objects. He was certainly able to do that lifting the car batteries on 19 May 2020 without any apparent difficulty. He said that he was capable of doing some heavy work, and he gave the example of changing the wheel on a truck. He described the truck tyre that he was referring to weighing up to 80 to 90 kilograms. That represented one of the heaviest things he had done.[41]
[41]Transcript 18
42 The plaintiff said that he is able to use a MIG and a TIG welder, and otherwise use hand tools in tidying up the vehicles which Mr Mercuri purchases.[42]
[42]Transcript 21
Medication
43 The report of Dr Chand, which I referred to earlier, describes the prescription of Panadeine Forte and Temaze initially, and prescription of Celebrex in 2016 and Endep and Mobic in 2017. His clinical notes refer to the last prescription for Endep on 14 January 2019. In his first affidavit, the plaintiff said that at the time when he swore that affidavit (21 May 2019), he said that his “regular medication” was Panadol Osteo, Mobic, Endep and Panadeine Forte, all used presumably for pain relief.
44 Under cross-examination, the plaintiff said that he has repeat prescriptions for some medication. He has half a pack of Endone – which comprises 20 tablets in a pack – and two-and-a-half packs of Panadeine Forte as his “backstock”. He last obtained a prescription for Panadeine Forte about three weeks ago, and for Endone about six to eight months ago. The dominant medication he uses is Panadol Osteo.[43] I was under the impression that he uses Panadeine Forte and Endone sparingly because of his concern about their addictive qualities.[44]
[43]Transcript 29-31
[44]Transcript 29
Medical treatment
45 In his first affidavit, the plaintiff said that he continued to see Dr Chand and an osteopath “for ongoing management” of his right shoulder.[45]
[45]PCB 5
46 Under cross-examination, the plaintiff agreed that he has not seen Dr Chand since January 2019.[46] He said that he has not had physiotherapy treatment since he ceased the pain management course. He saw the osteopath three times in 2019 and twice in 2020.[47]
[46]Transcript 31
[47]Transcript 28
Driving
47 In his first affidavit, the plaintiff referred to selling his four-wheel-drive because driving it caused him pain and discomfort in his right shoulder, and because of the financial cost of maintaining it.[48]
[48]PCB 6
48 It was very clear to me after watching the films that the plaintiff is quite capable of driving a utility, a forklift, trucks and cars. He has driven to Brisbane, Sydney and Dubbo, sharing the driving for the purpose of picking something up, presumably for Mr Mercuri. The truck he described as a big tow truck with a tilt tray.[49]
[49]Transcript 19
49 The plaintiff’s wife bought him a big 1964 vintage bus which he and his wife have driven, presumably for pleasure, to various localities, such as Mildura, Adelaide, Brisbane, Gympie, and more frequently to Bendigo, where his mother lives.[50]
[50]Transcript 23-24
Gardening
50 In his first affidavit, the plaintiff said he cannot do gardening “like I used to”. He has tried to use a lightweight mower. His garden is not maintained as well as it was. He described previously spending three hours to do work which now takes him twelve hours over a few days and sometimes weeks.
51 Under cross-examination, the plaintiff was asked to comment on the history recorded by Dr Rahgozar that there was not a lot that he could not do around his home. The plaintiff said that he “can do pretty much everything”. One of the few things he cannot do is use a hedge trimmer to cut hedges around the front of his house and around his swimming pool. He has someone do that for him. He does not pull out weeds. He described that his garden is not as immaculate as it was before he was injured.[51]
[51]Transcript 24-25
Chopping wood
52 In his first affidavit, the plaintiff said that he cannot chop wood in the same way that he previously was able to. He said using a chainsaw causes significant pain in his right shoulder and arm. He might now be able to cut one metre of wood, whereas previously he would cut up to four metres at a time.[52]
[52]PCB 6
53 Under cross-examination, the plaintiff said that he still uses his chainsaw “a little bit”. He repeated that he is limited in how much wood he can cut. He added that if he cuts one metre of wood, he will pay for it the next week, and I assume he meant by the onset of pain in his right shoulder.[53]
[53]Transcript 25
Go-karting/water-skiing/swimming
54 In his first affidavit, the plaintiff said that he enjoyed go-karting, water-skiing and also engaged in swimming and activities involving throwing a ball. He did not say how often he would engage in those activities nor why they cause him any right shoulder pain; however, he was not cross-examined about these activities.[54]
[54]PCB 6
Shooting
55 In his first affidavit, the plaintiff described enjoying shooting. He said that he still engages in that activity, but the experience is different, and he now uses a smaller rifle.[55]
[55]PCB 6
56 Under cross-examination, the plaintiff said that he still goes shooting for rabbits and foxes as regularly as he can. He would often do so on his mother’s property in Bendigo.[56]
[56]Transcript 27
Motorcycles
57 In his first affidavit, the plaintiff described feeling unsafe riding his motorcycles and being unable to ride them properly because of his physical limitations and the lack of strength in his right arm.[57]
[57]PCB 6
58 Under cross-examination, the plaintiff said that he has three motorcycles. He has not ridden two of the motorcycles for about six years. He has ridden one of them once. He agreed the seating position on the motorcycle is more comfortable when compared with the seating of a car. The reason why he does not ride the motorcycle is because of his lack of confidence on the road and the risk of suffering injury through accident.[58]
[58]Transcript 26
Fishing
59 Under cross-examination, the plaintiff was asked about whether he used to go fishing. He said that he does not have the patience for fishing and would prefer to go for a walk. I assume that his loss of interest in fishing has nothing to do with the injury to his right shoulder.[59]
[59]Transcript 27
loss of income
60 In his first affidavit, the plaintiff referred to his wife needing to work more to support them. I assume that he said that because of some loss of income, yet he led no evidence to suggest that he is earning any less than he was pre-injury.[60]
[60]PCB 6
The second affidavit
61 The plaintiff’s second affidavit does not compare well with how he described the nature and extent of the pain and the consequences of the impairment of function of his right shoulder in his first affidavit and in his oral evidence.
62 The particular aspects of that affidavit which do not compare well are the following:
· Struggling in his work with Mr Mercuri
· Experiencing daily pain in his right shoulder
· Experiencing severe exacerbations of pain in his right shoulder if he does too much
· Suffering the radiation of pain into his arm and into his little and ring fingers of his right hand when he suffers severe exacerbations
· Significant restriction with gardening
· Remaining restricted in engaging in shooting.
63 Whilst these are examples which do not compare well, it is also the flavour of the affidavit which would give the reader the impression that the plaintiff is suffering from significant and extensive consequences of the impairment of the function of his right shoulder. Additionally, the plaintiff described his work with Mr Mercuri as “very unique” and a job which does not exist in the “real wor[l]d”. It formed the basis for a submission that the plaintiff is both a stoic and is in almost protected employment.
Are the consequences “serious”?
64 I accept that the plaintiff suffered an injury to his right shoulder which required surgical amelioration, six injections, physiotherapy, osteopathy, pain management and the prescription of medication at a point in time where his right shoulder was actively symptomatic. The need for further treatment after he underwent pain management effectively ceased because he made a good recovery from the initial impact of the right shoulder injury, and he learnt how to deal with the limitations caused by the residual impairment of function of his right shoulder. Since the cessation of pain management, he has worked successfully without the need for further medical treatment except for very occasional osteopathic treatment and the prescription of stronger medication, which he says he uses sparingly. His medication of choice is Panadol Osteo, which I accept he takes more frequently.
65 I accept that the plaintiff is a creditworthy and reliable witness, despite my misgivings about the content of his second affidavit. The defendant did not criticise the plaintiff. It did not submit that I should find that the plaintiff is neither creditworthy nor reliable. Its preferred position was for me to make an assessment of whether the plaintiff’s pain and suffering consequences are “serious” based upon his oral evidence. It is the approach I propose to take.
66 The plaintiff submitted that the plaintiff is a stoic, as if to say that the absence of any significant medical treatment, his return to full-time employment, and his return to many of his pre-injury activities has occurred because the plaintiff is suffering from a disabling impairment of function which would see others of lesser strength of character resign themselves to the injury.[61] I do not accept that submission. What the evidence demonstrates, both from the plaintiff and from the medical evidence, is that he made a very good recovery from the right shoulder injury, returning him to a better overall level of function which enabled him to return to full-time work and to many of his pre-injury activities.
[61]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [3] and Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph [13]
67 I do not accept that the plaintiff’s submission that his job with Mr Mercuri is unique and not a real-world job which places him in a precarious position that if he is unable to maintain that employment, that he will be unable to find suitable and alternative employment. The fact is that the plaintiff has worked for Mr Mercuri for over two-and-a-half years without incident. There is no evidence to suggest that it is in some way protected employment. The overall evidence of the plaintiff’s current employment is inconsistent with how the plaintiff attempted to describe it in his second affidavit.
68 I have dealt with each of the domestic and recreational activities which the plaintiff relies upon to demonstrate that his pain and suffering consequences are “serious”. On his own evidence, it is difficult to see the basis upon which he can argue that his capacity to engage in driving, gardening, shooting, riding motorcycles and fishing have been impacted upon. I accept that chopping wood is likely to be difficult because it is undoubtedly an arduous activity; however, that activity is not entirely lost to the plaintiff. His capacity to engage in it has been reduced, not lost. I am uncertain about what I am to make of the plaintiff’s evidence that he cannot engage in go-karting, water-skiing, swimming and ball activities like he used to when he has not described in any detail at all how often he engaged in those activities and why they are made difficult for him in order for me to gauge whether they should be brought into account.
69 Lastly, the medical evidence does not support a conclusion that the plaintiff has an overly symptomatic right shoulder. Whilst I accept that there are activities which may provoke discomfort and perhaps pain, it would appear that movements involving overhead activity which are repetitive and sustained constitute the real issue for the plaintiff. Although, I accept that an arduous activity like chopping wood would likewise place enough strain on the plaintiff’s right shoulder to create a problem for him. I should add that chopping wood would no doubt be a particularly arduous activity even for someone who is able-bodied.
70 In conclusion, I am not satisfied that the consequences of the impairment of function of the plaintiff’s right shoulder are “serious” when judged by comparison with other cases in the range of possible impairments or losses of a body function which may fairly be described as being more than significant or marked, and being at least very considerable. On the basis of the evidence I have reviewed and the findings I have made, I consider that the consequences fall within the range of being mild and less than moderate.
71 I order that the plaintiff’s Originating Motion be dismissed with costs.
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