Pert v Corangamite Shire Council and Ors.

[2011] VCC 459

IN THE COUNTY COURT OF VICTORIA Unrevised

Not Restricted

AT WARRNAMBOOL
CIVIL DIVISION

SERIOUS INJURY

Case No. CI-09-02034

CLIFFORD PERT	Plaintiff
v
CORANGAMITE SHIRE COUNCIL AND ORS	Defendant

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Warrnambool
DATE OF HEARING:	8, 9, 10 and 13 December 2010
DATE OF JUDGMENT:	29 April 2011
CASE MAY BE CITED AS:	Pert v Corangamite Shire Council & Ors.
MEDIUM NEUTRAL CITATION:	[2011] VCC 459

REASONS FOR JUDGMENT

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Catchwords: Serious injury application; s.134AB Accident Compensation Act 1985; injury to right shoulder; tear in supraspinatus irreparable operatively; whether aggravation of previous shoulder condition; whether consequences of injury and/or aggravation to 70 year old plaintiff “more than significant or marked” and “at least very considerable”; plaintiff still working as taxi driver; unable to return to previous career as carer; leave sought for pain and suffering damages only.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D.G. Brookes SC	Taits Legal
with Mr N. Bird
For the Defendant	Mr P. Scanlon QC	Lander and Rogers
with Mr P. Jens
HER HONOUR:

1 Mr Clifford Pert seeks leave to bring proceedings for damages in respect of injuries suffered by him on 5 November 2005 during his employment with the defendant. To obtain leave, he must satisfy the Court that he suffered a “serious injury” within the definitions and restrictions of s.134AB Accident Compensation Act 1985. He relies on part (a) of the definition, claiming to have suffered serious permanent impairment of the function of his right shoulder. His claim is in respect of pain and suffering damages only.

2          To establish a “serious injury” of the type alleged, the plaintiff must satisfy the Court that the consequences to him of an injury to his shoulder, when judged by comparison with other cases in the range of possible impairments of a body function[1] can be fairly described as being more than significant or marked, and as being at least very considerable.[2]

[1] Section 134AB(38)(b).

[2] Section 134AB(38)(c).

3          It is not disputed that the plaintiff suffered an injury to his right shoulder during the course of his employment with the defendant on 5 November 2005. The defendant argues, however, that the plaintiff’s right shoulder was already impaired through previous injury, and that the injury that occurred on 5 November 2005 was no more than an aggravation which no longer materially contributes to the level of disability in his right shoulder. Alternatively, the defendant argues that to the extent that the subject injury still contributes to impairment in the plaintiff’s right shoulder, the consequences of the aggravation do not meet the test of being at least “very considerable”.

4          The evidence consisted of the documents set out in the attached schedule and the oral evidence of Mr Pert who was called for cross-examination.

5          In cases of this nature, the credibility and reliability of the plaintiff’s own evidence is important, as not only the Court but also doctors whose opinions are in evidence, are heavily dependent on the plaintiff’s own version of the timing, extent and duration of symptoms and their impact on the person’s activities and life in general. Mr Pert’s presentation as a witness was of a man of his stated age of almost 70 who, at the time of injury and indeed since, faces what adversities come his way and deals with them in a straightforward manner with determination and a fair degree of stoicism. All medical and similar reports appear to treat his description of his injuries and symptoms and his presentation as genuine and believable.

6          The defendants submit, however, that, whilst he might have presented as a very active and fit looking 70 year old man who probably did his best to give his evidence in a manner that the Court might find appealing[3], there are some exceptions which should cause me to doubt that he is as genuine as he might have appeared. The defendants point to three particular areas where, it is argued, his credibility was shaken.

[3]             T 131, l 6-12

7          The first is what Mr Scanlon said was his failure to mention or admit on direct questioning to some doctors that he had suffered prior pain in his right shoulder. He denied any previous history to that shoulder to both Mr Ian Jones and Mr John Henderson, orthopaedic surgeons who performed medico- legal examinations for the defendant. Notwithstanding the denial or failure to admit prior right shoulder pain to Mr Jones and Mr Henderson, in light of the number of times he has disclosed prior right shoulder pain, from his worker’s claim form[4], to all treating doctors as well as medico-legal reporters Mr Brearley, Mr Schofield and Dr Wood, I am satisfied that it was not deliberately trying to conceal that history.

[4]             Exhibit B. answer to Q.29 ─ “Shoulder agrivation[sic]”

8          The next issue said to undermine his credibility was that he swore in an affidavit only weeks before the hearing that he worked as a taxi driver on Thursdays, Fridays, Saturdays and was on call Sundays, whereas in the video surveillance which showed him driving a taxi, it was on a Monday, Tuesday and Wednesday.

9          Thirdly, I am urged not to believe his claims that he had in the past played golf approximately monthly for many years, because if he had played that frequently, he would have been able to recall his approximate score, whereas he claimed to have no idea of it. It was my impression that, through the extensive cross-examination about his knowledge of playing golf and issues as to scores, Mr Pert was probably deliberately trying to create an impression by repeating the lack of importance he attributed to the formalities of golf or its scoring, but overall it was not my impression that he was caught deliberately exaggerating or lying.

10        Overall, I accept his evidence as genuine and, while perception of pain is inevitably subjective as reflected through a plaintiff’s descriptions, there is significant other evidence in this case which, in my view, supports the reliability of the plaintiff’s version of most of the facts and circumstances. To the extent he became frustrated and played a little with some issues about golf and chainsaws, I have the impression that his approach to his life is down-to-earth and straightforward. Parts of his evidence impressed me as patently honest.[5]

[5]             He declares as gross income the total takings from his shift as a contracted taxi driver rather than only the 50 per cent share to which he is entitled – then treats as a deduction the share which he must pay to the taxi owner.

Plaintiff’s background circumstances

11        Mr Pert was born on 14 December 1940 and is now aged 70. He has three adult children by his first marriage, which ended in 1984. He remarried in 1991 and lives with his wife and their two children, the elder of whom is now 18 and just finished school, and the younger still at school.

12        Mr Pert left school aged about 14, worked initially for an insurance company and then for some 20 years in an engineering business in which he started in manual work but later became a partner and moved to more administrative work. That business ended with financial difficulties. He was then employed at a newsagency for about a year, but was then unemployed for some years. In the 1980s he turned to a new career and qualified to work with people with disabilities. He says, and I accept, that he found particular satisfaction in that work.

13        He commenced employment with the defendant as a home carer/respite carer in approximately 1988. By 2005 he usually worked three days a week with one Saturday a month extra. The duties with the defendant were often physically demanding and strenuous, involving heavy lifting, pushing, pulling and manoeuvring people in awkward positions. He worked on the other two weekdays, performing similar duties as a carer, with Karingal at Warrnambool. He also worked as a taxi driver with Timboon Taxi Service on a contract basis, usually Thursday nights from approximately 6pm to midnight and Saturdays from approximately 8am until midnight. He also worked for state and federal Electoral Commissions on election days, and Australian Bureau of Statistics occasionally.

14        Aged 64 as at November 2005, Mr Pert regarded himself as generally in good health, although he certainly had a medical history. He was taking medication to control elevated blood pressure. He was also taking medication for depression which he had suffered since the breakup of his first marriage in about 1984. He had undergone surgery on his left shoulder to repair the rotator cuff in approximately 1994 and, apart from scarring, had recovered from that condition.

15        He had also previously injured his right shoulder. In 2003, in an incident in which his then 11 year old son was attempting to help him into the back of his ute, he fell to the ground landing on his right side. He experienced pain in his neck and right shoulder, such that when they did not resolve after some weeks he was referred by his general practitioner to Mr John Skelley, orthopaedic surgeon, in Geelong. Mr Skelley noted tenderness at the base of the neck and over the right acromioclavicular joint and that arthritis in that joint was seen on x-rays, but there was a normal range of shoulder movement and the joint was stable. An ultrasound of the right shoulder on 19 June 2003 reported an enlarged subacromial bursar and degenerative changes in the supraspinatus tendon but no tears.[6] Mr Skelley’s view was that he had aggravated pre-existing conditions, in particular aggravating the arthritis in the acromioclavicular joint, and should continue with prescribed anti-inflammatory medication and undergo physiotherapy. A cortisone injection had not helped. Mr Skelley advised a return visit on 28 October 2003 if symptoms had not improved, but Mr Pert did not attend.

[6]             Exhibit K – report of Mr Skelley dated 1 September 2010.

16        During the course of the hearing, a further reference to prior right shoulder pain was unearthed from subpoenaed medical files, in the form of a report dated July 1997 from Mr Michael Dooley, orthopaedic surgeon[7], to the plaintiff’s general practitioner, after referral for painful right shoulder and painful right knee. Mr Dooley, at the time, found that the plaintiff was generally well, had a good range of motion of the shoulder, although there was some pain through the arc of abduction. His opinion was that Mr Pert would have wear and tear of the right rotator cuff tendon, but at that stage there was no indication to consider surgery and, if symptoms worsened, a shoulder injection would be reasonable. He did not advise surgery or an injection on the right knee. That letter reflects that at that time Mr Pert was working as an attendant carer, at times having difficulty because of his knee, but there is no mention of the shoulder causing difficulty except that it was aggravated when lifting weights in the gym.

[7]             Exhibit 1.

17        Mr Pert recalled seeing Mr Dooley[8] but did not recall much in the way of details except that he was told to take a Panadol if in pain, and he says that nothing would stop him from working. He understood that he was told that both the shoulder and knee problems were due to wear and tear to be expected at his age. He says the pain must not have been bearable for him to continue to work at his job as a carer, and also he was still using chainsaws, mowing the lawn by hand mower, chopping wood and doing other physical activities that he has not been able to do since the November 2005 incident.

[8]             Transcript (“T”) 45-46.

The work injury and subsequent events and treatment

18        On 5 November 2005, as part of Mr Pert’s employment duties, he was accompanying a group of disabled persons on an outing at the Ballarat Wildlife Park. He was assisting a wheelchair-bound person in a public toilet when, as he reached across the wheelchair to open the door, and had placed his hand on the door, the door was pushed forcefully inwards from the other side by a child. This caused jarring and twisting to his right shoulder.

19        He immediately felt pain in that shoulder. He reported the incident that day, and that evening attended his general practitioner, Dr Rouse. Dr Rouse noted tenderness in the region of the long head of biceps and supraspinatus tendons, with pain on trying to abduct the right shoulder[9], and ordered an x- ray and ultrasound. The x-ray showed severe degenerative changes at the acromioclavicular (“AC”) joint, which all doctors agree would have been longstanding. The ultrasound showed fluid in the long head of biceps tendon, and a complete tear of the supraspinatus tendon close to its insertion. Dr Rouse prescribed Panadeine Forte in the weeks following the injury and referred Mr Pert to Mr John Skelley, orthopaedic surgeon, whom he had seen in respect of his right shoulder in mid-2003.

[9]             Exhibit G.

20        Mr Skelley noted a complaint of pain about the right shoulder ever since the incident, and also pain in the side of the neck and down the arm into the radial aspect of the hand. In particular, the complaint was that there was some pain present all the time in the right shoulder, aggravated when he moved it. Mr Pert also complained of weakness in the shoulder and needing to use his other hand to lift up his right arm. On examination he noted tenderness over the AC joint which had osteoarthritis seen on the plain x-rays, and also noted the report of the ultrasound. Mr Skelley noted that he had seen Mr Pert back in September 2003 with similar symptoms which had got better on their own and he opined that that would hopefully happen again. He reported to Dr Rouse[10] that the tear in the rotator cuff may be old and not associated with this injury. The osteoarthrisitis in the AC joint can abrade the tendon and eventually lead to it rupturing. However, in a later report,[11] he stated that an ultrasound of the right shoulder on 19 June 2003 was reported as showing no tears. Mr Skelley recommended physiotherapy and advised a review in the new year with a view if symptoms had not improved of considering surgery.

[10]           Exhibit 7.

[11]           Exhibit K – letter to plaintiff’s solicitors 1 September 2010.

21        In the meantime, Mr Pert was referred by his general practitioner to Mr David Mitchell, orthopaedic surgeon, in late January 2006. Mr Mitchell advised on operative and non-operative managements of the shoulder condition. Mr Pert chose to have surgery, as previous surgery on his left shoulder had been successful whereas injections had been very painful without giving lasting improvement. In February 2006, Mr Mitchell operated on the plaintiff’s right shoulder at St John of God Hospital. The tear in the supraspinatus proved irreparable. The operation notes record that the residual cuff defect is three centimetres wide at the tuberosity.[12]

[12]           Operation notes attached to report in Exhibit F.

22        Mr Pert was discharged from hospital with his arm in a sling, then underwent physiotherapy, and was prescribed medication for the pain. He describes the function in his right shoulder as improving after the operation, but that the pain

continued ─ a description which has been accepted by all doctors who have

examined him.

23        He underwent massage treatment on the shoulder over many months[13], and ultimately was referred by the massage therapist to an osteopath, Ms Haylee Finn. He has continued to have osteopathic treatment which he finds gives relief, albeit only short term. He says, and I accept, that he attends Ms Finn for treatment on his shoulder, and although she also treats his neck and lower spine and rib area, he understands this is due to the shoulder injury. Ms Finn’s report is consistent with Mr Pert’s version of this. She describes the anterior right shoulder pain having been persistent over the last 12 months, extending into the anterior right upper chest region. Noting that ultrasonic investigation of that area revealed no muscle tear, her opinion is that the pain in that area is referred pain from the degenerative change to both the facet joints and discs of the cervical spine, and local rib dysfunction associated with altered shoulder biomechanics from the previous injury and surgery[14], the latter being the subject of this application.

[13]           Exhibit H.

[14]           Exhibit J.

What was the compensable injury?

24        There is no dispute that the x-ray and ultrasound taken five days after the work incident showed longstanding degenerative change in the AC joint of the plaintiff’s right shoulder. There is no dispute that the ultrasound showed fluid in the sheath of the long tendon of biceps, and a complete tear of the supraspinatus tendon close to its insertion, with a little retraction.

25        There is varying opinion as to whether the complete tear of the supraspinatus tendon was caused in the one traumatic incident. Mr Skelley originally cast doubt on that in his letter to the referring general practitioner[15], but in a later report to solicitors noted that a June 2003 ultrasound of the right shoulder was reported as showing no tears[16].

[15]           Exhibit 7.

[16]           Exhibit K.

26        Mr Ian Jones implicitly accepted that the tear was caused in the work incident, although he records the plaintiff denying any previous history of right shoulder injury or symptoms as opposed to the left shoulder in the past[17], and I am not in a position to assess whether his opinion on the tear would alter with a more accurate history.

[17]           Exhibit E.

27        Mr John Henderson, orthopaedic surgeon, accepted that the worker suffered a significant injury to his right shoulder as a result of the accident that occurred in the toilet block at the Ballarat Wildlife Park on 5 November 2005.[18] Notwithstanding that he records Mr Pert as specifically denying any prior symptoms in the right shoulder, he states that in his opinion the supraspinatus tendon may have been degenerate beforehand, but he did believe that it actually ruptured completely at the time of the incident in the toilet block.[19] He thought further details of the diagnosis were available from Mr Mitchell’s operation notes, in that there were noted “AJC osteophytes” and in addition notes of “biceps tendon frayed” and “subscapularis frayed”, as well as complete rupture of the supraspinatus tendon. He considered that the rotator cuff injury was a direct result of the work incident and that it is likely that the pre-existing osteoarthritis of the AC joint would have been significantly aggravated as a result of the indirect blunt trauma injury sustained through the right hand from the door handle.

[18]           Exhibit D, p7.

[19]           Exhibit D, p 4

28        In early February 2006 Dr Nigel Wood, consultant rheumatologist and physician reporting to the defendant’s claims manager, who was told of previous right shoulder pain settling after some months, did not believe the AC joint changes to be symptomatic, and found no tenderness over the acromioclavicular joint. However, Dr Wood, accepted that Mr Pert had sustained an injury to the rotator cuff tendon mechanism with clinical features of rotator cuff tendonitis, and ultrasound suggesting a tear of the supraspinatus component of the tendon mechanism. His view was that the employment incident had been a significant contributing factor to the injury when the door was forcibly opened resulting in a twisting hyper-extension injury to the shoulder. It was that condition that Dr Wood accepted was the cause of the plaintiff’s complaint of pain and other symptoms in his right shoulder at the time.

29        The surgeon who operated on the plaintiff’s shoulder, Mr David Mitchell, was aware that Mr John Skelley had given a pre-surgery opinion to the effect that much of the damage was old. Mr Mitchell considered that a pre-existing rotator cuff tear, having been exacerbated by the work incident, would certainly explain the irreparable nature of the tear. However, he considered the mechanism of injury and the plaintiff’s age made it reasonable to accept this as having been an acute rotator cuff tear.

30        Mr Kenneth Brearley, orthopaedic surgeon, in a medico-legal opinion of July 2010[20], had a history including the fall injuring Mr Pert’s right shoulder in 2003 and his having consulted Mr Skelley at that stage, with the condition having settled and his being able to continue with his normal work, play golf and recover full movements. Mr Brearley noted the plaintiff described his symptoms in a straightforward manner without any suggestion of exaggeration of his problems. On examination, he found wasting of the right shoulder musculature with movements through the full range but complaints of pain with some. He viewed the November 2005 x-ray and ultrasound. His diagnosis was that, in the incident described, Mr Pert sustained a full thickness tear of the supraspinatus portion of the right rotator cuff with extensive retraction of the tendon. He noted that, on operation by Mr David Mitchell, it was impossible to repair the tear and subacromial decompression was carried out. He found now a surprisingly full range of movement of the shoulder, but accepted that there was pain towards the extremes of movements and that he continued to have pain in the shoulder on lifting and repetitive use of the arm. Mr Brearley noted that the plaintiff had a previous problem with the right shoulder but that it was short lived and he was able to do his work thereafter as a carer without difficulty. He also noted previous injury and surgery to the left shoulder which had had a satisfactory result apart from disfiguring scarring.

[20]           Exhibit L.

31        Mr Stanley Schofield, orthopaedic surgeon, provided a medico-legal opinion in September 2010[21]. He found wasting of the right deltoid muscle and, on testing for muscle power, there was evidence of a torn long head of biceps tendon. He measured movement of the shoulder with minimal restriction but a positive impingement test. He also reviewed the opinions of Messrs Mitchell, Henderson and Brearley, and Drs Rouse and Wood. In his opinion, the plaintiff suffered a complete tear of the supraspinatus tendon as a result of the force exerted on the right shoulder when the door was forced backwards. Further, he thought that if this particular force had not occurred, despite pre- existing degenerative change in the tendons of the right shoulder, the tear in the supraspinatus was unlikely to have occurred. He confirmed that, due to the pre-existing degenerative change, a repair was not possible.

[21]           Exhibit M.

32        I am satisfied on the balance of probabilities that the complete tear in the supraspinatus tendon found on ultrasound five days after the incident was caused (or the tear completed) in the incident at work on 5 November 2005. I reach that conclusion on the vast preponderance of medical evidence[22], also taking into account that Mr Skelley (despite not confirming the incident as a cause of the tear) reports an ultrasound taken in July 2003 at a time of complaint of right shoulder pain, as showing no tear. Moreover, even if there was a pre-existing partial tear, the immediacy of onset of disabling pain after the incident described, of a sudden jarring and twisting of the shoulder, would, in my view, indicate that the effect of the aggravation suffered in that incident took the shoulder condition to a different level of symptoms than any previously experienced, and an ongoing one compared with what had occurred in 2003. There is no dispute that that tear was unable to be repaired surgically, and no suggestion that it could be so in the future. The tear will remain permanent.

[22]           All but Mr Skelley, and despite Mr Jones not having a history of previous shoulder pain.

33        I am also satisfied from the balance of medical opinion that the incident is likely to have aggravated the pre-existing osteoarthritis in the AC joint with activation of ongoing pain. I am satisfied that that aggravation has led to constant and permanent symptoms which had only been short-term whn manifested in the past. The extent of their contribution to pain and restriction in the right shoulder need not be differentiated from the symptoms from the tear of the supraspinatus, as both significantly materially contribute to the current level of disablement in the same body function – the right shoulder[23] - and in any event were caused in the same incident.

[23] Grech v Orica Australia Pty Ltd [2006] VSCA 172 para [58]

Consequences of the injury

34        The plaintiff says that since the incident he has had constant pain in his right shoulder which is exacerbated by lifting or repetitive use of his right shoulder above shoulder height. He has, since the incident, taken analgesics for this pain. Initially he took the stronger Panadeine Forte. He still takes daily up to six Panadeine Osteo and sometimes Panamax as well. He was cross- examined as to notes in his clinical records from before the work incident, and agreed that he had been prescribed and taken various medications including painkillers at various times and for various complaints before this injury. I am satisfied that he had not needed the sustained level of painkillers he now does.

35        Dr Wood specifically commented that the plaintiff required ongoing analgesia to be able to resume part-time work and engage in the activities he did. His general practitioner continues to prescribe such medication.

36        He underwent surgery for the condition which improved the function in the shoulder but did not relieve the long term pain. All doctors confirm that the tear was and will remain unable to be repaired.

37        He underwent various active therapies after the injury and then after surgery, and still undergoes osteopathic therapy approximately once a month. Mr Brearley’s view was that he needs to continue with his osteopathic treatment on an as needs basis.

38        There was the prospect of further surgery in the future as the condition of the rotator cuff is likely to deteriorate, albeit slowly, with the passage of time but that was put at some eight years hence by Mr Jones.[24] Mr Mitchell considered that there were numerous options by way of prognosis, including in time his developing a cuff arthropathy, ie. osteoarthritis of the shoulder as a result of his rotator cuff tear, but did not give an opinion as to further surgical intervention. I do not take further surgery to be likely, but it is clear, in my view, from all of the medical reports that there will be no further improvement in the plaintiff’s right shoulder condition.

[24]           Ten years from 16 January 2008.

39        The plaintiff says that he suffers disturbed sleep as a result of pain and in particular if he turns onto his right side, but by his second affidavit said that his sleep is interrupted by pain most nights a week.

40        A very significant consequence of his shoulder injury is that he has been unable to return to his work as a carer. No doctor suggests that he will ever be capable of that occupation again because he could not lift or manoeuvre people as he would need to do. In Mr Pert’s case this has meant the loss of a career to which he came in middle age, for which he specifically retrained, and which he clearly enjoyed as he found satisfaction in helping people on the individual basis he was able to do. In his mid-60s he was working for two employers at such work, approximately 30 or so hours per week. While he was approaching an age at which many people would look to retire, I am satisfied that he had no intention of doing so at the time of the incident, and hoped to be able to work past age 70. He had the motivation because his children were still relatively young and needing support, and his wife’s medical condition put further impetus on him to do so.

41        While he does not meet the statutory test to establish a serious injury as to loss of earning capacity, I do take into account that he has lost not only a source of income but an occupation which he had found to be particularly fulfilling and satisfying.

42        He has managed to increase his taxi driving from what had been one and a half days before the injury (as he worked five days a week as a carer) to four days a week at one stage, and now he says he works about three days a week but is on call on Sundays and, being a country taxi service, can be on call 24 hours a day. He says that he is capable of driving from Timboon to Melbourne Airport and back to Timboon in the one day, and had done so about eight times in the last six months. He says that, as a country taxi driver, he accepts that as part of what is required. I am satisfied that such a trip requires considerable physical fortitude, but not specific strain on his shoulder, and that he does not do such trips without suffering significant pain.

43        The defendants submit that he should not be believed that he only works Thursdays to Sundays taxi driving, but that, in any event, he has the capacity to work full time at taxi driving. As I am not dealing with an application in respect of loss of earning capacity and the statutory requirements for that, I do not need to decide whether he is capable of working full-time or not. I am satisfied that the plaintiff does the best he can to work as much as he can, having real financial motivation to do so, and I am also satisfied that his ability to do as much as he can, in the way of taxi driving and in other activities, is a product of his determination and stoicism.

44        He claims that he used to play golf socially once a month or so before his injury. He has only tried it a few times since and, when he last did so with his son-in-law, found that he could not complete nine holes. He was cross- examined as to the extent of his previous golf playing by reference to his knowledge of the game and his purported failure to know his usual score. I accept that he did used to enjoy playing golf, albeit on an informal basis. That is a loss of an enjoyable activity to him, but I do not take it to be a major loss in his everyday activities.

45        He said that he used to engage in ten pin bowling quite regularly, and I accept that he has not attempted such activity and is effectively permanently incapacitated from doing so since the shoulder of his dominant right arm was injured. It emerged that he used to bowl regularly, taking a disabled client who particularly enjoyed it, and that Mr Pert gained great satisfaction from seeing this client’s pleasure in the activity.

46        He says, and I accept, that he relies on his son for heavier work in the garden and around the house, relies on both of his teenage children to cut and split firewood which he used to do himself, and that, although he can operate the ride-on mower and does so, he is much more limited in the other gardening activities which he used to undertake. He used to push a hand mower.

47        His wife suffers from multiple sclerosis and, prior to his injury, he used to assist her with the heavier household tasks. He is more limited in his ability to do those now. He was challenged on his evidence that he is no longer able to use a chainsaw to cut wood. It was put by Mr Scanlon that there is no vibration from the operation when a chainsaw is in a log. I accept Mr Pert’s explanation that he is not willing to risk losing control of a chainsaw due to the condition of his right shoulder.

48        Video surveillance film was shown of Mr Pert. He was shown to shut his car door using his right arm and reopening it and shutting it again. He was shown on 13 June 2009 over an extended period at a local football match, where he appeared to walk freely, and carried coffee to his wife in the car, using his right hand for one cup and left for the one from which he drank. At one stage, holding the coffee in the right hand, he raised it with the elbow bent a little over shoulder height, acknowledging someone. His right arm was outstretched at about shoulder height briefly as he placed the coffee on the roof of the car before handing it into the car to his wife. Mr Pert acknowledged himself in this film, saying that he was at the Timboon football ground with his son playing that day and he was timekeeper. He agreed that he waved with his right hand and said, “I guess I was” as to whether he was swinging his arm in a normal manner.

49        In further surveillance in January 2010, he was shown carrying out various activities in relation to his taxi driving. He used his right hand and arm at a petrol bowser. He stood near the boot of the car reaching his right arm out at approximately 70 degrees momentarily and briefly folded his arms across his chest. He used both arms to pull down the car bonnet. He pressed it shut with both arms but the weight appeared to be on the left. He was shown filling the car with petrol again, using his right hand to insert the nozzle and his right arm was then outstretched at about shoulder height leaning against the back of his vehicle as it was filling with petrol. On finishing, he used the left hand mainly but also his right to extricate the nozzle from the petrol tank. At the petrol station building he got someone else to pull something out.

50        On 14 July 2010 the plaintiff was shown with his taxi at the kerb of a street using his left arm to assist to open and close a car door. He then pushed a person in a wheelchair across the nature strip, using both arms and appearing to use some effort as if uphill. He had denied doing this, and this is really the only instance in which I considered his credibility damaged. He eventually admitted that this had occurred, but not before giving explanations that did not have the ring of truth. I have not ignored that aspect of his credibility when accepting his evidence on other matters.

51        On cross-examination about his actions in these videos, he said he could lift his right arm right up but that it hurts. He was shown with the maxi cab on a weekend and said he thought he worked all of that week because the owners of the taxi business were in Queensland.

52        The plaintiff agreed that he believes himself fit to drive a taxi pretty well fulltime. He agreed that he had to undergo a medical examination to obtain a taxi driver’s licence, and that he obtained the licence without restriction. It was put that this was in April 2007. He does not have a taxicab licence and is not a taxicab operator but works on contract to the owner of the Timboon Taxi Service. He receives 50 per cent of takings and from that pays for car cleaning, but other maintenance on the car is paid by the owner.

53        He has been on medication for depression since his first marriage ended and also he had a business that went into voluntary liquidation. He has had other bad times. He has become at times irritable and frustrated by the effects of his injury and that has increased from time to time his pre-existing depression, but I consider in this case that with or without co-existent depression, it is the effects of a physical injury causing constant pain which is of the greatest consequence to Mr Pert and his enjoyment of life, and there is no suggestion that the pain is amplified by his psychological condition.

54        As at November 2005 Mr Pert was approaching 65 years of age, but with children in their mid-teens and a wife with a progressive debilitating condition which limited her ability to fully perform normal household activities, he was continuing to assist in household duties as well as maintaining the house and garden and working at three jobs totalling five days a week of 30 to 40 hours as a carer for disabled people, with an extra day per month for the defendant as a carer, and one night and one weekend day a week as a taxi driver. I accept that he intended to work well beyond the age of 65 and probably well beyond 70 were his health to allow it. In fact, he is, at the age of 70, still working as much time as he can manage.

55        Although he took medication for high blood pressure, he regarded himself as generally healthy and otherwise fit for his age. He had undergone surgery on his left shoulder for a rotator cuff tear in 1994 but had recovered from that sufficiently, not only to work for another ten years for the defendant as a carer for the disabled, but to also take on a further part-time job as a carer for Karingal, as well as taxi driving. This is consistent with his own evidence that he recovered well from the left shoulder surgery and that it did not continue to interfere with his activities. In 2003 he did suffer injury to his right shoulder when he fell onto his right side from his ute. His injury was sufficient to have him referred after some weeks to Mr Skelley for opinion, but noticeably he did not see the need to return for a review to Mr Skelley who had advised him only to return if symptoms did not improve. He had been able to resume his work and other activities, including mowing and using a chain saw.

56        I accept that his failure to reveal to doctors, or in his affidavit, a 1997 consultation with Mr Michael Dooley in respect of shoulder pain was a genuine lack of recall, and, as that was more than 13 years before the subject incident and he had worked at the physically demanding tasks of a carer for the disabled for many years after that consultation, I am satisfied that it was not interfering with his ability to work as a carer or in other domestic and social activities.

57        The defendants argue that I am bound as a matter of law by what was said in Stijepic v One Force Group Australia Pty Ltd[25] that, as a general proposition, the impairment consequences for a younger person might well be judged more serious than the same consequences for an older person because the younger person may have to put up with those consequences for a much longer period. I am, of course, bound by principles laid down by the Court of Appeal. However, I do not take the passage relied upon to mean that older plaintiffs cannot succeed in applications of this type. It seems to me that a proper consideration of the impact of an injury and its consequences on a particular plaintiff cannot exclude him or her simply because of advanced age. Indeed, the impact on an older person of an injury may be of greater significance in that person’s life, because it may deprive him or her of something in an already limited range of options for enjoyment or sense of achievement, and the more narrowed focus in older age may make the person less able to adapt and utilise retained capacities. It was submitted that this should be seen in the context that the age and likely life expectancy of a plaintiff may well result in a lower award of damages as the pain and suffering might not last as long as for a younger person. While recognising that the purpose of this application is the threshold to common law damages, I do not consider that the extent of damages which might ultimately be recovered, and specifically that it might be lower due to the plaintiff’s more advanced age, is to be used in determining the question of the seriousness of the injury.

[25] [2009] VSCA 181 at para 43.

58        Mr Pert was not yet 65 when injured. He is now 70 and has already had to bear some five and a half years of pain, treatment, limitations in use of his right shoulder and being unable to return to his previous occupation. He knows that for the rest of his life that impairment will continue.

59        I have taken into account consideration of what capacities Mr Pert has retained as having bearing on assessment of the degree of what has been lost[26]. Mr Pert has certainly optimised his retained capacities and, in my view, has done so using strong determination. He should not be treated less favourably for doing that than had he resigned himself to retirement and semi- invalidism.

[26]           Dwyer v Calco Pty Ltd (No 2) [2008] VSCA 260.

60        In my view, the impact on him of an injury that has brought about constant pain in the shoulder of his dominant right arm, that could not be repaired by surgery, requires daily use of analgesics - albeit not of opiate based strength- to keep functioning, and monthly osteopathic therapy for short term relief, and has precluded him from returning to an occupation from which he gained particular satisfaction, can fairly be described as more than significant or marked and as at least very considerable in the context of his life, and on the spectrum of other possible impairments of body function to other people.

61        Accordingly, I am satisfied that the injury to his right shoulder suffered in the course of his employment on 5 November 2005 meets the test for a serious injury as to pain and suffering, and I propose to grant him leave to bring proceedings for damages in respect of that injury.

SCHEDULE OF EXHIBITS

PERT v CORANGAMITE SHIRE & Ors (CI-09-02034)

Number and Short Description of Exhibit Tendered by

Identifying Mark

on Exhibit

A	Copy of Plaintiff’s affidavits sworn 17 Dec	Plaintiff
2008 and 23 Nov 2010
B	Workers claim form for compensation 21 Nov	Plaintiff
05(pg1cb)
C	Report of Dr N Wood dated 2 Feb 06	Plaintiff
D	Report of Mr J Henderson	Plaintiff
E	Report of Mr I Jones 16 Jan 08	Plaintiff
F	Report of Dr D Mitchell 11 April 08	Plaintiff
G	Report of Dr W Rouse 5 May 10	Plaintiff
H	Report of Ms D Bourke 7May 10	Plaintiff
J	Report of Ms H Finn 10 May 2010	Plaintiff
K	Report of Mr J Skelley 1 Sep 10	Plaintiff
L	Report of Mr K Brearley 2 July 10	Plaintiff
M	Report of Mr Schofield 5 Sep 10	Plaintiff

Number and Short Description of Exhibit Tendered by

Identifying Mark

on Exhibit

1	Copy letter from Mr Michael Dooley to	Defendant
Dr Warrick Rouse dated 7 July 1997
2	Disc of video surveillance of 11 and 13 June	Defendant
2009
3	Video surveillance of 12 and 13 January 2010	Defendant
4	Video surveillance of 13 and 14 July 2010	Defendant
5	Employer claim report of 25 Nov 2005	Defendant
6	WorkCover certificate of capacity of 5 Nov 05	Defendant
& 7 Dec 07
7	Report of Mr J Skelley 9 Dec 2005	Defendant
8	Summary of Plaintiff Taxation	Defendant