Peters v Patterson Cheney Pty Ltd
[2012] VCC 562
•10 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-10-01418
| KIERAN PETERS | Plaintiff |
| v | |
| PATTERSON CHENEY PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 March 2012 | |
DATE OF JUDGMENT: | 10 May 2012 | |
CASE MAY BE CITED AS: | Peters v Patterson Cheney Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 562 | |
REASONS FOR JUDGMENT
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Catchwords: Section 134AB of the Accident Compensation Act 1985 (Vic) – Pain and suffering only – Left shoulder injury – Humphries v Poljak (1992) 2 VR 129 – Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 – Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Moore Q.C. with | Zaparas Law |
| For the Defendant | Mr P. Montgomery | Minter Ellison |
HER HONOUR:
1 This is an application under s.134AB of the Accident Compensation Act 1985 (Vic) (“the Act”) for leave to bring proceedings for the recovery of damages for an injury sustained by the plaintiff during the course of his employment with the defendant, in particular on 10 August 2007. The injury alleged is a permanent serious impairment of the plaintiff’s left shoulder and leave is sought with respect to pain and suffering.
2 In brief, the nature of the work which allegedly caused the injury to the plaintiff’s left shoulder was the servicing of motor vehicles, particularly four wheel drive Toyota Landcruisers, with the injury allegedly occurring because of the plaintiff’s need to remove, balance up and then replace the tyres of these vehicles, which can weigh up to 40 kilograms each.
3 The issue in this case is whether or not the pain and suffering consequences of this injury are such that they meet the statutory requirement as interpreted by the Court of Appeal in cases such as Humphries v Poljak [1992] 2 VR 129 and Barwon Spinners v Podolak (2005) 14 VR 622.
4 As is usual in these cases, the parties relied on material in their respective court books and the plaintiff was cross-examined.
Background history
5 The plaintiff’s background history and the particulars of how he acquired the injury were set out in three affidavits, sworn on 19 November 2009 (“the first affidavit”), 5 November 2010 (“the second affidavit”) and 10 February 2010 (“the third affidavit”).
6 The plaintiff was born in Bangalore, India, on 14 January 1965. He is divorced and has three daughters. He had ten years of schooling in Bangalore before completing a one year Diploma in Automotive Mechanics. He worked for a number of years in India as a mechanic and in Oman for about four years. He was then unemployed for two years during which time he did some buying, doing up and selling of cars.
7 The plaintiff came to Melbourne to live in August 2004. He was initially employed as a process worker for six months and then found work as a mechanic with Repco, where he worked for twelve months. The plaintiff commenced work with the defendant as a mechanic on 15 May 2006. His job involved repairing and servicing vehicles, about 20 per cent of which were four wheel drive vehicles. His usual hours of work were from 8.30am to 4.30pm.
8 The plaintiff performed a major service on about 2 – 4 four wheel drives per day. In his first affidavit, he provided details of what a major service of these vehicles involved. These four wheel drive vehicles usually had steel rims and bigger and wider tyres than normal vehicles, each weighing between 15 and 40 kilograms. Servicing these vehicles involved lifting the wheels and tyres about 14 times for a major service.
9 In April 2007, the plaintiff was servicing a four wheel drive vehicle and felt shoulder pain while removing the wheels. He worked on for a day or so, hoping that the pain would ease. However, as the pain continued, he went to Dr V.N. Mohan Doss at the Doveton Medical Centre. Dr Doss examined him and gave him painkillers and he had a day off work on sick leave. Following this, the plaintiff continued to work, favouring his left shoulder and taking painkillers intermittently.
10 On Friday 10 August 2007, the plaintiff experienced left shoulder pain when servicing John Holland Landcruisers, which were being used for the building of Eastlink. The wheels and tyres of these Landcruisers weighed about 40 kilograms each. He had completed a major service on two Landcruisers that day and by the end of the day felt a lot of pain in the front of his left shoulder. He went to the first aid officer at work and was given light duty work, test driving cars and filing papers.
11 However, the plaintiff’s shoulder pain did not improve and it spread into his left upper chest and neck. He went back to Dr Doss on 16 August 2007 and was put off work. Dr Doss arranged for an ultrasound of his left shoulder and upper arm. He had the ultrasound on 17 August 2007 and the results were within normal limits.
12 Dr Doss referred the plaintiff to Endeavour Hills Physiotherapy, where he attended twice a week until July 2009, once a week until October 2009 and then fortnightly. Dr Doss also arranged for an x-ray of his left shoulder. This x-ray, on 21 September 2007, revealed no fracture or any other bone abnormality .
13 On 3 September 2007, the plaintiff returned to work on light duties. At the request of the defendant, he saw Dr Sing Lok on 6 September 2007. In the meanwhile, he continued to test drive cars and do filing work with ongoing discomfort in his left shoulder. In October 2007, Dr Lok referred him to Dr Marie Feletar, a rheumatologist.
14 The plaintiff saw Dr Feletar on 28 November 2007 and she arranged for an MRI scan of the left shoulder. The scan took place on 20 February 2008 and the conclusion was “AC joint strain with bone bruise lateral clavicle, Supraspinatus tendinopathy” (plaintiff’s court book (“PCB”) p.60).
15 The plaintiff temporarily ceased work when the defendant closed down for Christmas, on or about 21 December 2007. At that stage, the plaintiff was told that there were no further light duties for him and that he could not return to work unless he did full duties, which he was unable to do.
16 Dr Feletar referred the plaintiff to Mr Ton Tran, an orthopaedic surgeon, on 29 May 2008. Before he saw Mr Tran, the plaintiff was offered further light duties with the defendant in or about late March 2008, being work in the warehouse picking up small parts and delivering them to the workshops. The plaintiff was able to perform this work using a buggy like a golf buggy for deliveries and he worked full-time.
17 Mr Tran arranged for an ultrasound guided injection into the plaintiff’s left shoulder on 11 June 2008, and this injection improved his symptoms for a week or two. The plaintiff saw Mr Tran again on two further occasions, the last being in October 2008 when he was told that an operation was unlikely to be helpful.
18 On 29 July 2009, the plaintiff’s employment was terminated. Dr Doss arranged for an MRI of his cervical spine, which took place on 30 July 2009 and revealed minor spondylotic changes at C 5/6 and C 6/7. In November 2009, Dr Doss referred the plaintiff to a psychologist and she treated him for anxiety and depression until March 2010.
The plaintiff’s medical evidence
(i) Treating doctors
Dr Doss
19 The plaintiff’s treating G.P., Dr Doss, provided his solicitors with six reports, dated 25 February 2008, 17 August 2010, 18 October 2010, 26 November 2010, 4 July 2011 and 13 February 2012. In summary, these reports revealed that Dr Doss was of the opinion that the plaintiff was suffering from chronic supraspinatus tendonitis of the left shoulder.
20 In addition, the reports revealed damage to his left elbow leading to ulnar neuritis, which he had sustained at the time of the left shoulder injury. The plaintiff’s condition was mainly due to the accident at work on 10 August 2007, and partly due to his occupation as a motor mechanic. He was also suffering from reactive depression.
21 With respect to the plaintiff’s work ability, Dr Doss was of the opinion that he was not fit to do his pre-injury duties and that he was fit only for desk type work not involving his left shoulder and arm.
Dr Achar
22 Dr Anu Achar is also a G.P. at the Doveton Medical Centre. On 9 January 2008, she reported to the defendant that the plaintiff had seen her that day and had complained of pain in his shoulder with movement. He had been advised to return to normal duties and was finding this difficult to do. Dr Achar certified him as being unfit for normal duties, lifting more than five kilograms, repetitive movement of the shoulder or any pushing or pulling.
23 In her report of 25 November 2010 (PCB p.44), Dr Achar was of the opinion that the plaintiff was not fit for pre-injury duties as the pain in his shoulder and elbow had not settled, but that he may be fit for alternative or light duties. While she believed that the cause of the elbow pain was most likely due to the ulner nerve compression at the elbow, she was uncertain if it related to the shoulder and arm injury, or was coincidental.
Dr Lok
24 The plaintiff also relies on two reports from Dr Lok (19 October 2007 and 13 March 2008), whom he first consulted on 6 September 2007, claiming that he had injured his left shoulder at work on 10 August 2007. On examination, Dr Lok found tenderness along the plaintiff’s cervical spine and the muscles on the left side of the spine. The left acromioclavicular joint was also tender. Dr Lok prescribed restricted duties for him at work and advised him to continue with ant-inflammatory medication and physiotherapy.
25 In Dr Lok’s opinion, the plaintiff was suffering from left shoulder and neck strain. His job had “most likely contributed to the injury” and the plaintiff should avoid repetitive lifting with the left arm above shoulder height and there should be no lifting more than five kilograms in weight (report 19 October 2007, PCB p.46).
26 Dr Lok last saw the plaintiff on 20 September 2007. By this stage, the plaintiff had not been working since 28 December 2007, because there were no light duties at work. Despite doing nothing, the plaintiff’s left shoulder pain was no better and Dr Lok confirmed his initial advice that staying at home was unlikely to help his recovery (PCB p.49).
Dr Feletar
27 The plaintiff’s treating rheumatologist is Dr Marie Feletar. In her report of 9 April 2009, her opinion was that he had a acromioclavicular joint injury as “he had pain and symptoms consistent with this.” Dr Feletar ordered an MRI of the left shoulder, which was performed on 20 February 2008. Dr Feletar considered that the findings of the MRI (high signal at the lateral left clavicle at the articulation with acromium consistent with a bone bruise) were “likely to represent inflammatory change due to a local injury.” Dr Feletar also noted that there was some evidence of supraspinatus tendinopathy on the images.
28 On page 2 of her report, Dr Feletar stated that:
“ This gentleman shows consistency in reporting symptoms and having physical signs consistent with acromioclavicular joint pain and some supraspinatus tendinopathy with a stated cause of lifting a weight of at least seven to ten kilos or more from cars. His employment has thus been a significant contributing factor in aggravating this condition of supraspinatus tendinopathy and acromioclavicular joint injury“ (PCB p.54).
29 However, her prognosis was “very positive,” given the plaintiff’s age and good health and she thought it likely that he would be able to continue in the workplace once the acute inflammatory change in the acromioclavicular joint had settled.
Mr Tran
30 Dr Feletar referred the plaintiff to Mr Ton Tran, a orthopaedic surgeon, who in his report of 12 May 2009 (PCB p.57) stated that:
“ In summary Mr Peters gave an appropriate history for an acute work- related rotator cuff acromioclavicular sprain of the left shoulder. He has been assessed and managed appropriately”.
31 Mr Ton Tran further stated that:
“I do not believe that any surgical intervention would add to his progress. His left shoulder has recovered extremely slowly when compared with other patients having the same clinical presentation. As a result it may be expected that his shoulder will not recover fully, and progress on to become permanently impaired.”
(ii) Left elbow
32 As well as his left shoulder problem, the plaintiff also has problems with his left elbow. While there is no claim by the plaintiff in relation to his elbow, the defendant alleged that pain claimed to be suffered by the plaintiff may in fact relate to his elbow.
33 With respect to the left elbow, there was a report from Mr Berger, a hand and upper limb surgeon (report of 19 February 2010, PCB p.50), in which he diagnosed the plaintiff as presenting with “a fairly typical ulnar neuritis caused by compression of the nerve behind the elbow.” Mr Berger believed that the plaintiff required surgical treatment for his ulnar nerve in order to relieve his symptoms and to prevent steady deterioration of these symptoms (PCB p.51).
The plaintiff’s medico-legal reports
34 The plaintiff obtained medico-legal reports from Mr Garry Grossbard (an orthopaedic surgeon), Mr Charles Franc (a general vascular surgeon) and Mr Justin Hunt (an orthopaedic and spinal surgeon).
35 All of these experts were essentially of the opinion that the plaintiff could not return to his pre-injury work but that he could perform office-type work which did not involve lifting, repetitive movements the left arm, or working at or above shoulder height.
Mr Grossbard
36 Mr Grossbard provided two reports, dated 26 June 2009 and 12 August 2011. In his opinion, the plaintiff had:
“suffered a strain to his left shoulder, which had included an injury to the acromioclavicular joint from where much of his pain is emanating. There was also evidence of supraspinatus tendinopathy”.
Mr Franc
37 Mr Franc provided three reports, dated 3 June 2009, 15 November 2010 and 10 August 2011. In his report of 3 June 2009, his diagnosis (based on the MRI findings of 20 February 2008) was that:
“The nature of the injury sustained as a result of the incident of 10/8/07 is probably a combination of strain of the acromioclavicular joint and an aggravation of the degeneration of the supraspinatus tendon”.
38 In his report of 15 November 2010, Mr Franc stated that:
“in my opinion the most likely diagnosis is mild suprasspinatus tendonitis with some abnormality of the acromioclavicular joint”.
39 In his opinion, the plaintiff’s work for the defendant, in particular, the specific injury to his left shoulder on 10 August 2007, were significant contributing factors to the condition of his left shoulder and continued to influence his current disability even though he had stopped work.
40 As to the plaintiff’s left elbow and hand, Mr Franc was of the opinion that “the clinical picture was strongly suggestive of a left ulnar neuritis and it was more than likely that the nature of his work may have initiated the development of the left ulnar neuritis”.
41 In his report, dated 22 November 2010, Mr Hunt diagnosed the plaintiff’s physical problems as follows:
(i) Left shoulder – symptomatic acromioclavicular joint osteoarthritis;
(ii) Left shoulder – impingement syndrome (subacromial bursitis and supraspinatus tendonitis); and
(iii) Left elbow – cubital tunnel syndrome (ulner nerve entrapment in the cubital tunnel at the elbow with ulnar nerve neuritis).
The plaintiff’s vocational report
42 In this case, it is not disputed that the plaintiff has the capacity for light work and Ms Leonie Schneider of Australian Vocational Link identified a number of light jobs as being suitable for him.
The defendant’s medico-legal reports
43 The defendant relied on reports from Mr Sinha, Dr Dharwardkar (a psychiatrist), Mr Michael Shannon (an orthopaedic surgeon), Dr Michael Baynes (an occupational physician), Mr Clive Jones (an orthopaedic surgeon) and the opinion of the Medical Panel.
Mr Sinha
44 Mr Sinha examined the plaintiff on 27 September 2007. His diagnosis was that the plaintiff had disc degenerative disease in the lumbar spine with referred symptoms in the left shoulder. It was an age-related degenerative pre-existing condition and not related to his employment. There had been a significant improvement with rest and physiotherapy and the plaintiff could commence work as a motor mechanic (report 28 September 2007, Defendant’s court book (“DCB”) p.1).
Dr Dharwadkar
45 Dr Dharwadkar reported to the defendant, on 8 October 2008, that the plaintiff was not suffering from a clinical psychiatric condition and that there was a psychological amplification of pain. From a psychiatric perspective, he had a capacity for any suitable duties at his pre-injury workplace which were allowed for by his physical injury (DCB p.11).
Mr Shannon
46 In his report of 9 April 2009, Mr Shannon was of the opinion that the plaintiff had sustained “a strain to his left shoulder girdle as a result of lifting” and he doubted that there was any specific injury to his shoulder joint as such. Mr Shannon reported that the plaintiff had “a normal range of movement in his neck and a normal range of movement in his shoulder without evidence of impingement, nor was there any evidence of ongoing symptoms in his acromioclavicular joint”.
47 The only abnormal finding Mr Shannon was able to detect, was “some vague fullness and tenderness in the trapezius muscle which may represent slight muscle spasm”. Mr Shannon thought it appropriate that the plaintiff avoid work involving heavy lifting at or above shoulder level and was not optimistic about him returning to his pre-injury employment (DCB p.16).
Mr Baynes
48 Mr Baynes diagnosed the plaintiff as having suffered a soft tissue injury to his left shoulder girdle and rotator cuff. In his opinion, the plaintiff was suffering from a chronic pain syndrome and it was “difficult to explain why the symptoms had not resolved considering a relatively normal examination”. He was also of the opinion that the plaintiff could return to his pre-injury duties and hours (report of 18 November 2009).
49 Mr Clive Jones provided the defendant with two reports (18 November 2009 and 8 September 2011). In his most recent report, he stated, with respect to the radiology of the plaintiff’s shoulder, that:
“The clinical picture is not dramatic. He has a full range of movement and normal shoulder strength. There is a slight catching sensation in the mid arc of abduction. Radiology was limited to ultrasounds and demonstrated there was no shoulder tension rupture”.
50 With respect to the plaintiff’s work ability, Mr Jones was of the opinion that, in general terms, there is a fitness for alternative duties, possibly after rehabilitation and retraining. Given that the plaintiff had told him that his shoulder was normal prior to his work for the defendant, Mr Jones accepted that his condition was work related.
51 With respect to the plaintiff’s left elbow, his diagnosis was that the plaintiff had developed an entrapment syndrome of the left ulnar nerve behind the elbow. This was a common clinical finding and, in his opinion, it did not bear any relationship to his employment or his shoulder injury.
52 As well as the medico-legal experts referred to above, the defendant also relies on the decision of the Medical Panel of 25 September 2009, that the plaintiff had no whole person impairment in relation to the left shoulder injury with referred symptoms to the neck when assessed in accordance with s. 91 of the Act.
Finding in relation to causation
53 Prior to working with the defendant, the plaintiff had no history of left shoulder pain. I accept that he first felt such pain in April 2007, when he was servicing a four wheel drive, then again on 10 August 2007, when servicing John Holland Landcruisers. I also accept that after this event, he continued to suffer from symptoms and consequently remained on light work until his employment was terminated in July 2009.
54 I find that the nature of the plaintiff’s work with the defendant in servicing the four wheel drives and, in particular, the incident on 10 August 2007 were significant contributing factors to the condition his left shoulder.
55 In making this finding, I have taken into account that Dr Doss saw the plaintiff six days after the episode on 10/8/2007 and reported that his examination revealed painful restricted movements of the left shoulder and left pectoral muscle area. In addition, I have taken into account that that after this incident the plaintiff was unable to return to pre-injury job and continued to suffer from symptoms related to his left shoulder.
56 It is also significant that, other than Dr Sinha who was of the opinion that the plaintiff’s injury was an age related degenerative condition, the majority of medical opinion is (to various degrees) that the plaintiff’s employment was a contributing factor to his left shoulder injury as follows:
i) Dr Doss – that all the problems the plaintiff was suffering from were due to his work for the defendant (PCB p.38);
ii) Mr Flanc – that his work with the defendant and, in particular, the incident on 10 August 2007 were contributing factors to the condition of his left shoulder (PCB p.75);
iii) Dr Feletar – that the plaintiff’s employment had been a “significant contributing factor in aggravating his condition of supraspinatous tendinopathy and acromicoclavicular joint injury “ (PCB p.54);
iv) Mr Hunt – that he had “pre-existing acromioclavicular joint degenerative change and also sub-clinical tendonitis due to the physical nature of the work he performed as a Motor Mechanic” and that the lifting injury he sustained presented an aggravation with symptomatic acromioclavicular joint arthritis and subacrominal bursitis” (PCB p. 82.7);
v) Dr Lok – that the plaintiff’s job “most likely” contributed to his injury (PCB p.47);
vi) Mr Tron Tran – that the plaintiff had given “an appropriate history for an acute, work related rotator cuff/acrominal clavicular sprain of the left shoulder” (PCB p. 57);
vii) Dr Grossbard – that the plaintiff suffered an injury to his left shoulder as a result of the incident in August 2007 (PCB p64);
viii)Mr Shannon – that the plaintiff suffered a strain to his left shoulder girdle as a result of lifting and the condition arose in the course of his employment (DCB pp.15-16);
ix) Mr Baynes – that the cause of injury was related to lifting a Land Cruiser wheel but note Mr Baynes was of the opinion that the plaintiff’s employment had ceased to be a cause of his injury (DCB p.22);
x) Mr Clive Jones – that, as the plaintiff had told him that prior to working for the defendant his shoulder was normal, under these circumstances, his condition was entirely due to his employment (DCB p. 30).
57 As to the nature of the plaintiff’s injury, I accept the opinion of Mr Flanc that “the injury is probably a combination of a strain of the acromio-clavicular joint and an aggravation of degeneration of the supraspintus tendon”.
58 This diagnosis is based on the MRI findings of 20 February 2008, which suggested a stain of the acromioclavicular joint and (except for Mr Sinha, Mr Bayes and Mr Shannon) it is not inconsistent with the opinions of the other experts referred to above.
Plaintiff’s case in relation to pain and suffering
59 In his first affidavit, the plaintiff provided the following details of pain and suffering consequences:
· pain in the left shoulder, being worst at the point in front of the shoulder near the point of the shoulder all the time;
· the discomfort spreads to his shoulder blade and collar bone area and the left side of his neck;
· he can only lift about five kilograms in his left arm and cannot hold the weight for more than two to three minutes, as if he holds it longer he gets a painful feeling of swelling in the left shoulder spreading into the collar bone;
· pressure on the left shoulder, particularly pushing the shoulder back, is very painful;
· if he lies on his left side, he gets immediate pain in his shoulder and cramps in the left upper arm and a feeling of pins and needles in his fingers, worse in his thumb and the two fingers next to it;
· he tries to sleep on his right side as much as he can, but several times a week the left shoulder pain wakes him;
· in the morning when he wakes up, his left shoulder is always stiff and sore. He does stretching exercises of the left arm and neck, as shown to him by his physiotherapist;
· about once a week he has much worse shoulder pain, more frequently in cold weather and the worst pain will take two to three days to ease;
· he has shoulder pads which he wears about two days a week; and
· when he is out, he is conscious to try to avoid being bumped on the left shoulder.
60 In his second affidavit, the plaintiff claimed that since his last affidavit, he had become aware of a sharp pain in his elbow if he placed pressure on a certain point. In addition, that he had pins and needles in his fingers most of the time, his grip had weakened, he could not lift more than a few kilograms in his left hand without increased pain in his left hand up to his shoulder and neck, the referred pain gave him headaches on average twice a week and that pain woke him, on average, three times a week.
61 When the plaintiff was cross-examined about his current level of pain, his evidence was that he always had pain in his left shoulder. The level of symptoms varied from day to day. When the weather was cold, he felt severe pain in his shoulder. The pain was a “pricking” sort of pain. The level of pain at its worst was bad (transcript p.37).
62 With respect to how the injury affects his activities, the plaintiff deposed and gave evidence that when he is driving he takes his left hand off the steering wheel frequently and puts it on the consol box. He cannot play with his children as much and lift them up. He used to love gardening and cooking, repairing cars, playing sport and socialising, none of which he could do any more.
63 In his closing address, counsel for the plaintiff submitted that it was the plaintiff’s life dream to be a mechanic and that this loss was very important in the context of loss of amenity and enjoyment of life.
64 It was apparent from both the plaintiff’s affidavit material and his evidence that he is frustrated and upset that he can no longer work as a mechanic. In his second affidavit, he stated that:
“Being a mechanic was a childhood dream. I had a motorbike when I was young and spent all my spare time working on it and putting new parts and fixing it up. Since I was young I knew that is what I wanted to do. I loved my job; it was my passion. I feel like I am missing a part of myself and my life now I can’t be a mechanic any more. I saved up and spent a lot of money on an incredible tool box. Every time I look at it, it reminds me of my job. I really miss using my tools” (PCB p.17.3).
65 When cross-examined concerning his current treatment, the plaintiff’s evidence was that “it was a long time ago” that he had last received a prescription for medication and that he takes Panadol for “severe pain”. When asked how many Panadol he had taken this week, the plaintiff replied that it was one (transcript p.22).
66 The plaintiff continues to see Dr Doss once a month to get Workcover certificates (transcript p.21). Although he has not seen a physiotherapist for nearly three years, he continues to regularly do the exercises he was given for 10 minutes a day. He also uses deep heat and a TENS machine about twice a week when the pain is severe. This treatment relieves his shoulder discomfort and makes it easier for him to sleep. In addition, he goes swimming once or more a month to loosen up his muscles.
67 Comparing his problems with his left shoulder with his elbow, the plaintiff’s evidence was that his shoulder was worse (transcript p.39). The particular movements which gave him problems with his shoulder were pushing, pulling and straining. He also had pain using his arm overhead (transcript p.39). When he was doing light work for the defendant he had daily problems with his left shoulder and it used to swell up (transcript p.40). However, he also said that if he had not been dismissed he would have continued to work in that capacity as he needed a job (transcript p.40).
Defendants case in relation to pain and suffering
68 Counsel for the defendant submitted that in the overall spectrum of cases, the plaintiff’s injury was of a relatively mild degree in relation to other matters that came before the Court. The injury was submitted not to meet the narrative definition in that :
· there was virtually no pathology to support the injury to the left shoulder;
· with the radiology, there was no evidence of any tears;
· after the incident on 10 August 2007, the plaintiff was able to continue on light duties for well over another year until his termination in mid 2009;
· the plaintiff would still be able to carry on light duties if he had not left work.
69 In addition, the case for the defendant was that the plaintiff was receiving limited treatment and that, if the pain was severe, you would expect him to be seeking a lot more treatment than he is. In this respect, the defendant relied on the plaintiff’s evidence in cross-examination, that:
· he was only taking over-the-counter medication and not prescription medication;
· he did not take medication every day;
· he only occasionally took more than one and this was confined to Panadol;
· his purpose in seeing his general practitioner once a month was to get certificates for incapacity.
· While counsel for the defendant conceded that the video footage in this case suggested that the plaintiff was “not exactly engaged in a lot of significant activity,” he also relied on the fact that the plaintiff was seen working on his car, driving and using his left hand “not all the time but certainly using it”. The plaintiff had also conceded that his injury was no longer affecting his cooking (transcript p.47).
Finding
70 I must determine this case by reference to whether or not the plaintiff has established that the pain and suffering consequences of his injury, when judged by comparison with other cases in the range of possible impairments or losses of body function, may fairly be described as being more than significant or marked, and as being at least very considerable. This involves a value judgment, in which matters of fact and degree, and of impression, are operative.
71 The court is required to look at age, work history, life experience, ability to work and nature, type and degree of ongoing symptoms and pain, the age and degree of any ongoing treatment and medication, loss of enjoyment of life or any loss of or restriction upon work capacity and risk of future deterioration. See Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, and also Sabo v George Weston Foods [2009] VSCA 242.
72 With respect to his ability to work, while the plaintiff has lost his preferred work as a motor mechanic, the majority medical opinion is that he is physically able to return to alternative work. Indeed, the plaintiff’s evidence in cross-examination referred to earlier in this judgement was that he would have been able to carry on with the light duties he was doing for the defendant if he had not been dismissed (PCB p.16, transcript p.40). I note also that the plaintiff told Mr Flanc that he could have continued with light duties, if his services had not been terminated in July 2009 (report of 10 August 2011, PCB p.81).
73 The decision of the court of Appeal in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292, at para 24, is relevant in this respect. In that case it was stated:
“If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are ‘at least very considerable.’”
74 In so far as the plaintiff’s symptoms, his level of pain and treatment are concerned, while I accept that he has a degree of pain every day, it appears from the evidence that he is able to manage it fairly well with over the counter medication and use of the TENS machine. Indeed he does not need to take medication every day and, when he does, he only occasionally takes more than one Panandol.
75 In Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, in so far as his pain was concerned, the Court of Appeal said, on page 13 at paragraph 48, that:
“Finally, in so far as the appellant’s pain is concerned, the burden of evidence is that while he continues to suffer from episodes of pain, and will continue to do so, he does not suffer a continuous substantial level of pain. It is, we consider confirmatory of this, the appellant’s pain appears to be controlled by moderate strength non-prescription medication”.
76 With regard to the effect of his injury on the plaintiff’s domestic and daily activities, Mr Hunt reported that:
“In regard to his domestic and daily activities Mr Peters is not able to cook able to cook as he had done previously. He has difficulty performing lifting activities around the home, but otherwise copes reasonably well” (PCB p.82.8).
77 The video film footage showed the plaintiff going about his everyday life with no sign of pain or apparent restrictions. In cross-examination, he gave evidence that he was able to cook again. He is still able to drive and, while he rests his left hand on the console when he drives, he is not restricted with distance (transcript p.27). He can go shopping (transcript p.26), swimming and look after himself.
78 While I accept that, due to his injury, the plaintiff can no longer play sport including cricket hockey and soccer, I note that he told Mr Grossbard that he used to play soccer “in his younger days” (report of 26 June 2009, PCB p.63).
79 The Australian vocational report of 18 October 2010 (PCB p.98) stated that:
“Mr Peters is not hampered in his job seeking or work availability by restricted mobility or travel, by excessive levels of pain or disturbed sleep or the affects of medication”.
80 While the plaintiff also told author of this report that for the majority of the day his left shoulder pain levels were extreme (9 out of 10), this is inconsistent with his evidence to this court and with the minimal amount of medication he is taking.
81 Stijepic’s case confirms that, when judging the pain and suffering consequences, it is relevant to look at the likely period for which these consequences will be experienced and that:
“All things being equal, impairment consequences which a man and woman will have to put up with for 40 years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period”.
82 The plaintiff is still a comparatively young man and I accept that, due to injury to his left shoulder, he will most probably continue to experience some pain and restrictions in the future. However, for the reasons referred to above I am not persuaded that the pain and suffering consequences in this case, when judged by comparison with other cases in the range of possible impairments can fairly be described as being more than significant or marked, or as being at least “very considerable”.
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