Petersen v Close the Loop Ltd (ACN 095 718 317)
[2018] VCC 1432
•14 September 2018 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-00745
| MATHEW PETERSEN | Plaintiff |
| v | |
| CLOSE THE LOOP LTD (ACN 095 718 317) | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 August 2018 | |
DATE OF JUDGMENT: | 14 September 2018 (Revised) | |
CASE MAY BE CITED AS: | Petersen v Close the Loop Ltd (ACN 095 718 317) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1432 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the right shoulder – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(37)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Petkovski v Galletti [1994] 1 VR 436; Guppy v Victorian WorkCover Authority [2010] VSCA 164; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted to the plaintiff to bring proceedings to recover damages for pain and suffering as a result of the injury suffered in the work accident.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Pierorazio | Michael El Moussalli & Associates |
| For the Defendant | Mr B R McKenzie | Hall & Wilcox Lawyers |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) for injury suffered by him on 25 February 2016 in his employment with the defendant.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of body function;”
5 The body function relied upon in this application is the right arm, including the right shoulder.
6 The plaintiff relied upon two affidavits, sworn 27 September 2017 and 3 August 2018. The plaintiff was cross-examined. I have not summarised the affidavits or his evidence in cross-examination; however, I will refer to the relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]Section 134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)“the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant;[2]
(b)“the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c)“the consequences” to the plaintiff of his impairment to the right shoulder in relation to “pain and suffering” must be “serious” – that is:
“… when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable.”[4]
[2]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[3]Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [33]
[4]Section 134AB(38(b) and (c) of the Act
9 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[5]
“... many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. ... .”
[5][1998] 1 VR 702
10 The Court of Appeal was considering the wording under the Transport Accident Act 1986, which is the same wording adopted under the Act. Accordingly, I adopt the reasoning of Callaway JA as outlined above.
11 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
12 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd & Anor:[6]
[6][2009] VSCA 181 (“Stijepic”)
“The emphasis in s134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other … .”[7]
in assessing the consequences:
“… by the significance of what has been lost may be informed, to an extent, by what has been retained.”[8]
[7]Stijepic (ibid) at paragraph [42]
[8]Stijepic (ibid) at paragraph [44]
13 The wrongdoer must take the victim as he finds him or her; he must compensate only for the damage he has caused.
14 Based on Petkovski v Galletti,[9] an analysis has to be made of the extent of impairment of the body function before and after the relevant injury and the additional impairment has to involve a serious permanent impairment of body function.
[9] [1994] 1 VR 436 and affirmed in Guppy v Victorian WorkCover Authority [2010] VSCA 164
15 In determining the application, the Court:
(a)must not take into account psychological or psychiatric consequences for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[10]
(b)must make the assessment of “serious injury” at the time the application is heard;[11]
(c)notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[12]
[10]Section 134AB(38)(h) of the Act
[11]Section 134AB(38)(j) of the Act
[12]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issues
16 Counsel for the defendant informed the Court that:
(a) the plaintiff alleges an aggravation injury. None of the defendant’s medical witnesses were provided with such a history, which refers back to complaints by the plaintiff of pain in the right shoulder in 2011, as well as four instances of right shoulder pain reported to his treating osteopath who was treating him for his left shoulder injury;
(b) the plaintiff is relying on an issue of aggregation. It was accepted that the plaintiff is not seeking to aggregate the right and left shoulder, but effectively, the plaintiff is saying that the effects of the right shoulder are greater because of the pre-existing left shoulder. This amounts to an aggregation that the plaintiff cannot do; and
(c) the consequences do not meet the test of very considerable.
Credit of the Plaintiff
17 The plaintiff’s credit was not in issue. He answered questions directly and without exaggeration. He was straightforward in his presentation in Court. There was no suggestion in the medical evidence that the plaintiff’s credit was in issue and there was no real challenge to the plaintiff’s credit by counsel for the defendant. Overall, the plaintiff impressed me as a believable witness.
Background
The left shoulder injury
18 The plaintiff’s evidence was that, on or about 11 November 2009 when employed with Linfox as a truck driver, he suffered injury to his left shoulder. In August 2010, the plaintiff underwent surgery, performed by Mr Christopher Pullen, orthopaedic surgeon, specialising in upper limb surgery, in the form of an arthroscopy and debridement. Following the surgery, the plaintiff returned to work with his employer, Linfox, on light duties in the office, although after a few months he was asked to leave because he could not perform the office duties because of his limited education.
The current injury, the right shoulder injury
19 The plaintiff is right handed. It was not in issue that the plaintiff injured his right shoulder at work on 25 and 26 February 2016, when working with the defendant employer, Close the Loop Ltd.
20 The plaintiff suffered injury to his right shoulder when he placed a 44-gallon drum into the cradle using a belt-and-clipper system. The drum fell towards the plaintiff. It would have been one-half to three-quarters full at the time. He turned to push it away with his right arm. As he did so, he experienced pain in his right shoulder. The following day, he was moving steel into place. As he did so, the pain in his right shoulder became worse.
21 Both injuries were reported to the defendant employer.
22 He did not work the next couple of days.
23 He consulted his general practitioner, Dr Deviprasad Dayasagar, at the Tristar Medical Group in Epping on 2 March 2016.
24 On 1 April 2016, the plaintiff was referred for an MRI scan, which revealed partial tears of the subscapularis tendon and suspected tears of the labrum, together with supraspinatus tendinosis. Dr Dayasagar referred him to Mr Pullen.
25 The plaintiff lodged a Claim for Compensation on 14 April 2016, which was accepted.
26 On 19 April 2016, the plaintiff underwent cortisone injections into his right shoulder, which provided short-term relief, and again on 8 July 2016, which provided limited assistance. The plaintiff continued to work with the defendant and was given what was meant to be restricted duties, all of which aggravated the pain in his right shoulder.
The current medical evidence
27 In June 2016 and April 2018, the plaintiff consulted Mr Pullen, who diagnosed a right shoulder post-traumatic osteoarthritis. He said the work injury in 2016 caused, or exacerbated, the right shoulder post-traumatic osteoarthritis. It was his view that the plaintiff’s persistent right shoulder symptoms arose from the post-traumatic osteoarthritis that followed his work injury in 2016. He noted that there may have been mild osteoarthritis which had been exacerbated by the work injury in 2016. He discussed surgery options with the plaintiff.
28 In May 2018, the plaintiff was medically examined by Associate Professor Bruce Love, orthopaedic surgeon, at the request of the plaintiff’s solicitor. Professor Love was aware that the plaintiff had suffered a left shoulder injury, which was operated upon, and although the condition had improved as a result of surgery, it was his view that there remained some functional impairment in the left shoulder. Professor Love diagnosed chronic symptoms of rotator cuff tendinitis of the right shoulder, and that the clinical findings are those of a constant ache in the shoulder, and of moderate/significant restrictions of motion. Professor Love said the plaintiff’s injury to the right shoulder has permanently restricted him from performing his usual occupation.
29 In February and December 2017, and July 2018, the plaintiff was medically examined by Dr Joseph Slesenger, specialist occupational physician, at the request of the defendant’s solicitor. Dr Slesenger diagnosed:
·mechanical injury to the right shoulder
·aggravation of asymptomatic degenerative disease
·right shoulder rotator cuff tear
·labral tear.[13]
[13]Defendant’s Court Book (“DCB”) 17
30 Dr Slesenger said that the plaintiff’s prognosis was guarded, given the length of his impairment and disability to date and his poor response to treatment. He anticipated that it is likely that he will have an ongoing right shoulder impairment that is likely to impact negatively on his occupational capacity and some domestic tasks, in particular home maintenance tasks and heavier aspects of gardening. He said the plaintiff could work but with restrictions.
31 In May 2017, the plaintiff was medically examined by Mr Michael Shannon, orthopaedic surgeon, at the request of the defendant’s insurer. Mr Shannon diagnosed aggravation of pre-existing degeneration of the right shoulder.[14] He accepted that the osteoarthritis was pre-existing.[15]
[14]DCB 34
[15]DCB 35
32 All medical witnesses accepted that the plaintiff had suffered a work-related injury to the right shoulder in February 2016. None of the medical witnesses expressed the view that there was likely to be substantial improvement.
33 Professor Love and Dr Slesenger accepted that the plaintiff’s injury to his right shoulder has permanently impacted upon his quality of life, including his occupational capacity. There was no suggestion that the right shoulder would improve. Accordingly, I accept the plaintiff has established permanency.
Aggravation injury
34 The plaintiff’s evidence was that, in 2011, as a result of his left shoulder injury and the fact that he had to over-rely on his right arm, he did experience some symptoms in his right shoulder. In June and August 2011, he consulted his general practitioner, Dr Shaun Salimi, at Tristar Medical Group[16] in Epping, reporting pain in the right shoulder. In August 2011, an ultrasound was performed on his right shoulder which revealed no abnormality.
[16]Also referred to as Willandra Medical Clinic
35 I accept that none of the medical witnesses refer to complaints of previous right shoulder pain, nor that an ultrasound of the right shoulder performed in August 2011 revealed no abnormality. All medical witnesses had a history of left shoulder injury and surgery.
36 Counsel for the defendant relied upon the medical records of Dr Matthew Darmody, osteopath, who was treating the plaintiff for his neck and left shoulder injury. The records confirm that the plaintiff received treatment on ten occasions, and on four of those occasions, namely 14 and 21 October, 2 November 2015 and 12 February 2016, he reported right shoulder pain. Otherwise his treatments were solely for the neck and left shoulder injury.
37 In May 2017, Mr Shannon said the incident, as described by the plaintiff, would be an aggravation of a pre-existing osteoarthritis. The plaintiff reported no previous trouble with the right shoulder. Despite this, Mr Shannon said the plaintiff had significant osteoarthritis in the shoulder which had been aggravated by the February 2016 work injury.
38 In 2018, Mr Pullen noted that there may have been mild pre-existing osteoarthritis which has been exacerbated by the work injury in February 2016.
39 The evidence is that in the context of the plaintiff undergoing an arthroscopy and debridement of the left shoulder in 2009, in 2011, he reported some pain to his right shoulder to his general practitioner. An ultrasound performed on the right shoulder in 2011 revealed no abnormality.
40 Other than four references to right shoulder pain on 14 and 21 October, 2 November 2015 and February 2016, when the plaintiff was being treated for left shoulder and neck pain shortly before the work injury, I accept the plaintiff’s evidence that he suffered only very occasional right shoulder pain.
41 I accept that, in 2016, at the time of the work injury, the plaintiff had, on the odd occasion, reported some level of pain to his right shoulder. I accept that he was able to perform physically-demanding work and engage in a range of household and gardening activities. Accordingly, on a Petkovski v Galletti[17] analysis, the impairment to the right shoulder is, in large part, referable to the 2016 work injury. This is in accordance with the medical evidence of Mr Pullen, Dr Slesenger and Mr Shannon.
[17]Supra
Aggregation
42 Counsel for the defendant submitted that the plaintiff is relying on an issue of aggregation; however, he conceded that the plaintiff is not seeking to aggregate the right and left shoulder, but effectively, the plaintiff is saying that the consequences of the right shoulder injury are greater due to the pre-existing left shoulder injury. I accept that the plaintiff reported to medical practitioners that he was more reliant upon his right shoulder following his left shoulder injury; however, I take the view that the right shoulder injury was sustained in a discreet incident while working with a different employer. I am required to consider the consequences of the right shoulder injury alone.
43 The issue is whether the consequences of the right shoulder injury alone satisfy the statutory test. I must make the assessment of the plaintiff at the time of hearing the application. I must decide whether the impact of the plaintiff’s pain and suffering consequences when judged by comparison with other cases in the range of possible impairments or losses are fairly described as being “more than significant or marked” and as being “at least very considerable”. Accordingly, I will examine the pain and suffering consequences to this plaintiff’s right shoulder injury alone in turn.
Pain and suffering consequences
Pain
44 The plaintiff’s evidence is that he suffers ongoing pain in the right shoulder. Currently, the plaintiff works five days a week, Saturday to Wednesday, and by Wednesday his right shoulder is quite painful. The plaintiff’s evidence is he works with pain in order to be able to earn an income.
45 In July 2018, the plaintiff reported to Dr Slesenger residual right shoulder pain of moderate to severe severity, aggravated by activity, and worse at night.
46 In May 2018, the plaintiff reported to Professor Love that he continued to suffer from pain in the right shoulder which he described as a constant ache. Professor Love said that clinical findings are of a moderate restriction of motion.
47 In April 2018, the plaintiff reported to Mr Pullen chronic constant dull aching pain in the right shoulder since the workplace injury. He had intermittent sharp exacerbations of his pain in the right scapula, AC joint and anterior shoulder joint line. The shoulder pain was worse with activity, and at the end of the working week he described right shoulder pain at night and pain when reaching. He reported curtailing his work activities because of the ongoing shoulder pain.
48 In June 2017, the plaintiff reported to Mr Shannon that he has no pain at rest, pain if he lies on his right shoulder, and a knife-like pain at times.
49 All medical witnesses accepted the plaintiff’s complaint of pain and said that he will continue to suffer pain into the future. All medical witnesses accepted that the plaintiff was unable to continue with his pre-injury employment because of the pain.
50 I accept the plaintiff suffers pain which he has reported has plateaued, and which is at a constant level. There is no suggestion by the medical witnesses that the plaintiff’s level of pain will improve.
51 I accept the plaintiff suffers daily pain which increases as the working week progresses. I accept that the pain is a consequence I can take into consideration.
Treatment
52 The plaintiff’s evidence is that he currently sees Dr McCormack, general practitioner, who replaced Dr Dayasagar, to provide him with certificates with restrictions. In June 2018, on the recommendation of Dr McCormack, the plaintiff underwent a third CT-guided glenohumeral injection into his right shoulder, which did not provide any long-term benefit in terms of pain and restriction in his right shoulder. In addition, the plaintiff’s evidence is that he ices his shoulder regularly and performs exercises using a TheraBand in order to strengthen the muscles in his arm. He relies on a TENS machine, which he uses at night, after a day’s work. Currently, he has been prescribed Mobic, which he uses intermittently with Nurofen; however, the anti-inflammatory medications upset his stomach and, as a result, he is reluctant to use Nurofen and Mobic. The medical evidence as to treatment is as follows.
53 Mr Pullen said that he discussed non-operative treatment options with the plaintiff, including oral analgesics, non-steroidal anti-inflammatory medications and activity modification. He discussed surgery options with the plaintiff, including a right shoulder arthroscopy and debridement or total joint replacement. The plaintiff noted he would continue with non-operative treatment until the right shoulder pain became more severe, then he would consider surgical intervention.
54 Dr Slesenger said the plaintiff requires review under the care of his general practitioner. He advised against further steroid injections due to his poor response to the recent steroid injection. He said the plaintiff requires ongoing medication and he should continue with a self-managed exercise program.
55 I accept that the plaintiff continues to suffer pain as a result of the injuries he suffered at work and takes an appropriate level of medication. There is no suggestion by the medical witnesses that his treatment is inappropriate or that it will vary. I accept that the treatment and medication the plaintiff takes is a consequence I can take into account. I accept the consequences of the treatment is in the middle of the range.
Surgery
56 The evidence of the medical witnesses is that it is possible that the plaintiff will require surgery. Currently, the plaintiff is reluctant to undergo surgery given the poor response that he received with surgery to his left shoulder. The plaintiff’s evidence as to surgery is that he will only have surgery as a last resort. Dr Slesenger said he could not comment on surgery as it was outside his area of expertise. Mr Pullen said it was a possibility. Given the medical evidence as to surgery, in light of the plaintiff’s age and its nature, I accept that this is a consequence in the middle of the range.
Sleep
57 The plaintiff’s evidence is that he currently has difficulty sleeping either on his right or left side. Prior to the right-sided shoulder injury, he used to like sleeping on his stomach, however, now he is unable to do that. The plaintiff said he is woken by the pain but returns to sleep. Dr Slesenger accepted that the right shoulder impairment may affect the plaintiff’s sleep. There was no evidence that the plaintiff required medication to assist with sleep.
58 I accept that difficulty with sleeping and been woken by pain is a consequence I can take into account. I assess this consequence at the low to middle of the scale, given his lack of reliance on sleep medication.
Day-to-day activities
59 The plaintiff’s evidence is that he continues to be limited in the chores around the home that he is able to perform. For example pruning, scrubbing, cleaning the pool and washing the car are difficult because of his right shoulder pain and restrictions with movement. The plaintiff’s evidence was that he also had difficulty with these jobs with his left shoulder injury, but was able to cope as he was able to rely upon his dominant right shoulder. Now, because of his right shoulder injury, most of these activities are very difficult.
60 He has lost the strength in his right arm and has difficulty lifting heavy items. He has difficulty painting. He attempted to paint the shed at the back of the house, which he completed, although it took him longer because of the pain in his right shoulder.
61 In terms of gardening, the plaintiff finds using the lawnmower for prolonged periods increases the pain in both shoulders due to the vibration. He now finds that trimming hedges and using clippers in an overhead position is difficult, and he has subsequently purchased a garden edger with an extension pole, which he can hold in close to his body, which is more manageable. He has attempted digging in the backyard in order to put in edging. Digging increased the pain in his right shoulder. He now has to perform tasks in short periods, taking longer to complete the task. He finds it difficult to wash his car with his right shoulder injury.
62 The medical evidence is that the plaintiff cannot lift heavy weights, nor can he perform any work above shoulder level. The weight restriction imposed on him is not lifting in excess of 10 kilograms and keeping his arms close to his body. He should avoid external rotation of the right shoulder. These were restrictions imposed by his general practitioner and Mr Pullen. Mr Pullen said he should restrict the movement of his right shoulder, including forward flexion, abduction and rotation. Dr Slesenger accepted that the plaintiff’s ability to perform home maintenance tasks and heavier aspects of gardening were affected by his right shoulder injury.
63 In cross-examination, the plaintiff agreed that he was unable to perform the activities because of his left and right shoulder; however, in re-examination, the plaintiff said he was able to perform the activities listed above with his left shoulder injury alone because he could rely upon his uninjured right shoulder. Now he cannot perform the activities because of his right shoulder alone.
64 The plaintiff said that recently he had to climb into the ceiling space in order to check the heater, which was not operating. Had it not been for his right shoulder injury, he would have been able to haul himself up. As it was, he had to rely on his elbow in order to wriggle through the ceiling space.
65 I accept the activities the plaintiff performs on his property are limited by the pain he suffers in the right shoulder alone. I accept the plaintiff’s evidence that prior to his right shoulder injury, he was able to perform such activities despite the left shoulder injury. I accept this is a consequence which I can take into account, which I assess at the high end of the range.
Stoical
66 Counsel for the plaintiff submitted the plaintiff was stoical.
67 The plaintiff’s evidence was that he suffered a left shoulder injury in 2009 at work. He underwent surgery in August 2010, in the form of an arthroscopy and debridement. Following the surgery, he managed to get back to work with Linfox on light duties in the office, although after a few months he was asked to leave because he was unable to perform the duties due to his limited education. In about 2011, he purchased his own truck, a car carrier, and subcontracted to Ace Car Carrying for a couple of years. In mid-2014, he sold the truck and obtained work with the defendant as a process worker in September 2014. He worked full-time hours, performing physical work.
68 The plaintiff suffered injury to his right shoulder on or about 25 and 26 February 2016. He returned to work on restricted duties driving a forklift, but was still required to perform lifting work. He ceased work in October 2016 because he could no longer perform even modified duties, which were aggravating his right shoulder.
69 The plaintiff found part-time work, working with a truck-washing company, which requires him to move trucks into various bays where they are washed. He commenced work, working twenty-eight hours per week, and has increased his hours to approximately forty-eight hours per week. He also purchased a dual-control car and obtained a licence to teach others to drive. The plaintiff’s evidence is that he needs to work to earn an income.
70 The plaintiff’s evidence is that he suffers pain which is of some significance, yet is working forty-eight hours per week performing lighter physical work.
71 The plaintiff impressed me as a man who was prepared to endure a fair amount of pain as he went about his work and everyday activities. I rely upon his evidence that his entire working life has been in physical work, and the fact that he has attempted to find alternate work. He continues to perform household and gardening activities at a slower pace. He said he was trying to establish himself as a driving instructor as he knew he would not be able to continue the physical work that he has done in the past.
72 In Haden Engineering Pty Ltd v McKinnon,[18] Maxwell P said:
“As to (d), the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain.[19] In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.”
[18](2010) 31 VR 1 at paragraph [13]
[19]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [3]
73 I accept the plaintiff was stoical. Accordingly, I accept that his injury should not be viewed any less seriously merely because he manages to remain more active than might have been expected, given his level of pain.
Work
74 The defendant’s submission was that the plaintiff continues to work performing physical work. The plaintiff’s evidence is that he has been performing physical work all his life. He left school after completing Form 3 and has only been engaged in physical work. The plaintiff’s evidence is that he was unable to continue with the physical work he was performing at the time he was injured. The medical evidence is that he can no longer engage in unrestricted pre-injury physical work. This is permanent. To the plaintiff’s credit, he has found work which is less physical than the work he was performing with the defendant; however, the work he performs does cause him pain. In particular, as the week progresses, the pain increases.
75 The medical evidence is that the plaintiff will more than likely require surgery. I refer to the report of Mr Pullen and the general practitioner. I also refer to the restrictions imposed upon the plaintiff’s work by Mr Pullen and Dr Slesenger. Professor Love accepted the plaintiff’s right shoulder injury permanently restricted him from performing his usual occupation.
76 I accept, based on the medical evidence, that the plaintiff has lost the capacity to perform unrestricted manual work because of his right shoulder injury alone. Further, the plaintiff’s capacity to continue work in his current employment is unlikely, given the evidence that the work he performs causes him pain as the week progresses. These are consequences I can take into account. Given his level of education, namely, leaving school at Year 9 and his experience of manual work, I accept this is a consequence at the high end of the scale.
Retained capacity
77 Counsel for the defendant submitted the plaintiff has retained the capacity to continue to work more than full-time hours, working forty-eight hours per week. The current medical opinion is that the plaintiff cannot perform pre-injury employment, but his symptoms are likely to exacerbate and his long-term prognosis is guarded. I refer to the reports of Dr Slesenger and Mr Pullen. Accordingly, I accept that the plaintiff has retained the capacity to work long hours at the expense of his physical condition. There is no suggestion that the plaintiff will be able to continue the work he performs, or the hours he currently works. The plaintiff’s evidence, based on the medical evidence is that he has lost the capacity to work in pre-injury employment. Furthermore, the plaintiff has purchased a dual control car and obtained a licence to teach others. He advertises on the internet. He has given a few lessons, but the income derived from such a pursuit is less than the income he currently earns. I take into account the fact that the plaintiff has retained a capacity to work but I accept that his current employment causes him pain. Further, any income he may derive as a driving instructor is likely to be substantially less that his current income. This is a consequence which I can take into account.
Conclusion
78 I accept the plaintiff has suffered the above-mentioned consequences. Those consequences are supported by the evidence of the plaintiff, and the medical evidence. I accept the plaintiff had a physically active life, his employment has been heavy manual work and, to all intents and purposes, the plaintiff lives with his injury and gets on with it. I accept that he has continued working, but in a less physical job; however, he works with pain, his pain levels have increased as the week progresses and his prognosis is guarded.
79 I am satisfied that the plaintiff was involved in a work incident which, to this plaintiff, resulted in him experiencing symptoms of a physical nature. The consequences of his right shoulder injury alone have impacted upon his life as he knew it before the work accident. He has suffered for two years and the medical evidence is guarded as to the future. The medical evidence is that his injury has plateaued. I accept the plaintiff’s right shoulder injury is permanent. I take into account the fact the plaintiff is stoical.
80 For the foregoing reasons, I am satisfied that the plaintiff has established that the consequences to him of his impairment can reasonably be described as being “serious”. In my experience, the consequences to the plaintiff may measure up well against other serious applications where plaintiffs have been successful. In considering the consequences, I have not treated each consequence as equal but, rather, attributed appropriate weight to each consequence in light of the evidence.
81 I accept that the right shoulder injury has consequences to the plaintiff, that when judged by comparison with other cases in the range of possible impairments may be fairly described, at the date of hearing, as “at least very considerable” and certainly “more than significant or marked”. In making this assessment, I have looked at the consequences of the right shoulder injury alone.
82 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for pain and suffering as a result of the injury suffered in the work accident.
83 I will hear the parties on costs.
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