Raitt v Statewide Waste Pty Ltd
[2011] VCC 1344
•7 October 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT WARRNAMBOOL
CIVIL DIVISION
SERIOUS INJURY
Case No.CI-11-01406
| ROBERT ANDREW RAITT | Plaintiff |
| v | |
| STATEWIDE WASTE PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING: | 7 & 8 September 2011 |
| DATE OF JUDGMENT: | 7 October 2011 |
| CASE MAY BE CITED AS: | Raitt v Statewide Waste Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1344 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s.134AB – application for leave in respect of pain and suffering damages only – reliance upon sub-paragraph (a) of the definition – injury to left shoulder – some consequences of impairment identical or similar to consequences previously sworn to by plaintiff in undisclosed affidavit relating to a right shoulder claim – evidence of recovery from that claim apparently at odds with previous affidavit sworn shortly before occurrence of relevant injury and history given to medical practitioner at that time – surveillance – reliability of the plaintiff as a witness – whether burden of proof discharged.
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird of counsel with | Maddens Lawyers |
| Mr I Fehring | ||
| For the Defendant | Mr P Scanlon QC with | Lander & Rogers |
| Mr P Jens |
DRAFT
HIS HONOUR:
Background
1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”.
2 The plaintiff seeks leave in relation to pain and suffering damages only. In bringing his application, the plaintiff relies upon sub-paragraph (a) of the definition of serious injury contained in s.134AB(37) of the Act. In summary, the plaintiff’s claim could be described as one relating to an injury to the left shoulder and the sequelae thereof, such injury being suffered on or about 12 February 2008 when the plaintiff, whilst in the course of his employment with the defendant as a truck driver and yardman, was struck on that shoulder by the heavy lid of a skip which fell from the open position. The plaintiff is right hand dominant. The occurrence of the incident of injury is not disputed and statutory benefits have been paid.
3 Mr N Bird of counsel with Mr I Fehring of counsel appeared on behalf of the plaintiff. Mr P Scanlon QC with Mr P Jens of counsel appeared on behalf of the defendant. The plaintiff was called to give evidence and was cross- examined. The balance of the evidence was documentary in nature, including surveillance material, and was tendered by consent.
4 I am familiar with the numerous decisions of the Court of Appeal which bear upon applications such as this and shall endeavour to apply the principles set out in them in coming to a decision in this case. I shall not list such cases here but shall refer to any cases which I consider to be specifically relevant in the course of this Judgment. It was not argued but that the plaintiff bears the burden of proof.
Factual background
DRAFT
5 The following findings of fact are made for the purposes of this application and are not intended to be findings which are in any way determinative in relation to issues such as negligence, the quantum of damages, entitlement to statutory benefits and the like.
(i) The plaintiff 6 In my opinion the reliability of the plaintiff as a witness was damaged substantially in cross-examination. It could not be said that he emerged with his credit intact, and indeed the contrary was what occurred. The strong impression created was of a lack of candour. There are two principal areas of the evidence which are of concern. One relates to the injury previously suffered by the plaintiff to his right shoulder, an affidavit sworn by him in relation to it (the existence of which affidavit was not made known to the court prior to cross-examination) and his evidence in that regard. The other relates to what was demonstrated by surveillance. Of the two, probably more telling damage was done by the former issue. I shall now turn to it.
7 In his affidavit of 19 November 2010 in support of the present application the plaintiff referred to an injury to the right shoulder sustained whilst he was employed by Target prior to his commencing work with the defendant, this commencement occurring in or about May 2006. As I understand his affidavit, Target was his employer immediately prior to such commencement. In his affidavit, the plaintiff swore that he made a reasonable recovery from the right shoulder condition, although he did have some ongoing symptoms. In paragraph 13 of his affidavit the plaintiff swore that:
“I continue to have some symptoms in my right shoulder, but they
are quite mild compared to my left shoulder.”
8 In opening the case for the plaintiff, Mr Bird stated as follows:
“While he was with Target your Honour he suffered an injury to his right shoulder; he made a recovery from that condition. It causes him minimal problems today.”
DRAFT
This was specifically adopted as being true by the plaintiff – see transcript (hereinafter referred to as “T”) T 11. At the same page he gave evidence that he had made a recovery from the right shoulder condition.
9 When cross-examined the plaintiff gave the following evidence:
“You said in the affidavit which I’ve already referred you to, ‘that whilst working at Target I suffered an injury to my right shoulder and made a reasonable recovery from this condition although I did have some ongoing symptoms’. Did you take, what, six months to get back to a reasonable condition? --- I reckon I would have, yes.
So after a period of six months you were doing your job, or doing a job? --- Yes.
Going about your own business at home, looking after yourself?---
Yes.
Driving? --- Yes.
And do you live, I see in the affidavit, on 10 acres, is that right, out at Woodford? --- Yes.
Did you have back then any cattle or sheep or animals on the property? --- We had a couple of sheep, a couple of cattle. We’ve got a couple of horses out there, ponies.
You were able to look after them after that six month period? ---
Yes.
You were able to mow the lawns or do domestic duties? --- Yes.
So within six months you were effectively able to do what you’d been doing prior to the injury. Is that right? --- I’d say yes to that but ---“
10 The above extract of evidence can be found at T 20-21. What was to follow the word “but” was never explored either in cross-examination or re- examination. At T 26 the plaintiff was asked concerning a history given by him to Mr John O’Brien, orthopaedic surgeon, who examined the plaintiff at the request of his solicitors. In particular it was put that he had told Mr O’Brien that he had undergone right shoulder surgery which had been reasonably successful, he having regained reasonably good function although suffering from occasional mild right shoulder pain. The plaintiff agreed with this proposition.
DRAFT
11 At T 34 the following question and answer can be found:
“You had an accident at Target on 9 February 2005 which settled
after about six months, is that right? --- Thereabouts, yeah.”
12 After that question and answer, Mr Scanlon put to the plaintiff a series of questions. These concerned the current limitations which the plaintiff has in relation to his activities on his farm, and particularly in relation to such matters as maintaining the place, fencing, using the slasher and activities requiring lifting. In each instance the plaintiff agreed that he was so limited. He agreed that his boys usually do most of the heavier work for him including the mowing of lawns. He claimed to be limited in activities such as house maintenance and painting. He also agreed that his sleep had been badly affected by reason of the shoulder injury, waking him up three or four times during the night. He claimed to be awake for long periods, and that lack of sleep makes him tired. He had difficulty with activities such as putting clothes on the line, and found it hard lifting, “getting the shoulder up there”. He also said that the boys usually put out the wheelie bins for him, although he occasionally does this, and that was because of his left shoulder. He also agreed that because of his left shoulder he had difficulties, particularly in the kitchen, with overhead cupboards and reaching up generally and that it was his left shoulder which was “giving me the hassle” – see T 35.
13 Cross-examination continued at T 35-37 as follows:
“You told his Honour that after your shoulder injury at Coles, Myer or Target, which was on 9 February 2005, that you effectively got back to relatively normal within about six months or so, is that right? --- Yeah, but it was mainly on the floor that I was as I said standing at the door doing – literally doing nothing.
But you got back to working on the farm? --- They – they actually got me back into work.
I was asking about you; you got back to doing your activities on the farm within six or seven months did you? --- I wouldn’t say I got back exactly at six or seven months.
Within a year? --- Within 12 months or so, yeah, but I’d still be a lot more, still did a lot for me ---
DRAFT
I understand that, within 12 months you were back doing activities on the farm, is that right? --- Yeah.”
14 Mr Scanlon then revealed to the plaintiff that the material which he had put in relation to the plaintiff’s limitations and with which the plaintiff had been agreeing in fact came from an affidavit sworn by him, apparently in support of a serious injury application, relating to his right shoulder. This had been sworn on 10 October 2007. It indicated that the injury to the right shoulder at Target had occurred on 9 February 2005, the affidavit being sworn some two years and eight months later. It was also sworn only four months before the occurrence of the injury the subject of the present application.
15 I should add that I am satisfied that, contrary to a position that might exist elsewhere, a document produced or served in respect of a proceeding or claim for compensation or under the Act or at common law may be used in and for the purposes of any claim, proceeding or payment under, or in accordance with, the Act – see s.48A. Indeed, counsel for the plaintiff did not argue to the contrary. Hence, the use of the affidavit, including its tendering, was permissible by reason of the operation of the Act. I might add that the affidavit of 10 October 2007 clearly purports to be in support of an application pursuant to s.134AB.
16 After revealing this to the plaintiff, and after some discussion concerning admissibility, Mr Scanlon’s cross-examination continued at T 37 as follows:
“…On 9 February 2005, you had an accident at Target, right? ---
Yes.
Injuring your right shoulder? --- Yeah.
Two years and eight months later, you swore this affidavit on 10 October 2007, four months before you had your accident at Statewide on the twelfth of the twelfth 2008 (sic), alright? --- Right.
Right. You said to his Honour on your oath that the problems that you had – the initial problems for six months but you were back doing your duties on the farm and so on at least within a year, correct? --- M’mm.
DRAFT
But two years and eight months after your accident, you swore this affidavit and I now want you to go to the last page. Is it sworn by you on 10 October 2007, is that correct – and that’s your signature? --- Yeah.”
17 Mr Scanlon then took the plaintiff through the affidavit in some detail. During this he again asserted that “I got back to normal within the year with my right shoulder, yes” – see T 42.
18 Thus, the situation is that the plaintiff had in fact brought an application seeking leave in respect of his right shoulder injury and in support of that application had sworn an affidavit setting out, inter alia, the various restrictions from which he suffered. This was only four months before suffering the subject injury to the left shoulder. Many of the complaints are similar. Indeed, in some instances the very wording is close to identical – for instance, in relation to restrictions on social outings, picnics and barbecues. The same firm of solicitors has been engaged in each instance. However, none of this was revealed to the court prior to cross-examination.
19 Also placed before me was a report of Mr John Burke, orthopaedic surgeon, who examined the plaintiff at the request of his solicitors in relation to the right shoulder injury on 11 December 2007, this being approximately two years and 10 months after the occurrence of the right shoulder injury and only two months before the occurrence of the subject injury. To Mr Burke he stated that he performed karate until he injured his right shoulder but now (as at the date of Mr Burke’s examination) occasionally he teaches karate, but has not been able to do his own program. He told Mr Burke he is unable to lay on his right side. He has pain over the front and back of the shoulder, which is always present, but the level of his pain varies. It is made worse by driving a car and truck and by using his right arm at or above shoulder height. The pain would come on 30 minutes after the latter activity and symptoms would be eased by the use of Panadeine. Indeed, he told Mr Burke he was taking between eight and 30 Panadeine tablets per day for pain relief. It should be
DRAFT
said that it is apparent from the affidavit of 10 October 2007 and from the report of Mr Burke that the plaintiff had been operated on by an orthopaedic surgeon, the surgery being in the form of an arthroscopy and an open decompression and repair of the right rotator cuff. Indeed, the surgeon who performed the operation on the right shoulder was Mr Sundaram, the same surgeon who would subsequently operate upon the plaintiff’s left shoulder.
20 Clearly what was said to Mr Burke and what is contained in the plaintiff’s affidavit of 10 October 2007 sits poorly with the plaintiff’s oral evidence that the injury to the right shoulder had settled after about six months; that it was back in a reasonable condition after that period; that he could look after his livestock, mow his lawns and do domestic duties after approximately six months; and that he got back to doing farm activities within a year.
21 Apart from creating somewhat major reliability and credit problems, the giving of evidence of this nature and in this manner is relevant to the task of ascertaining what has been lost and what has been retained by way of consequences of impairment. There is a vast difference between what has been described in the affidavit of 9 October 2007 and what was told to Mr Burke some two months later, and the impression that was attempted to be created in the present case. In this application, any difficulties created by the right shoulder injury were effectively glossed over or minimised to a very considerable extent. I have already set out the plaintiff’s evidence as to recovery from the right shoulder injury and the timing thereof. However, if what was told to Mr Burke and what was sworn to in relation to the right shoulder injury is correct, the plaintiff was already suffering many of the impairments and consequences of injury which are now claimed to result from the injury to the left shoulder and was so suffering from them almost immediately prior to the occurrence of that later injury. If the plaintiff had chosen to present his case on the basis that he had already suffered a substantial and troubling injury to the right shoulder and then suffered a
DRAFT
further injury of quite some magnitude to his remaining “good” arm, the situation might be different. However, that is not the way in which he chose to present his case. Hence, effectively he was caught out in a situation where two versions of events, both on oath, were largely incompatible. That does not make the task of identifying consequences of impairment easy.
22 I should add that firstly no attempt was made to give any explanation as to why the evidence was presented in the manner in which it was either in this case or in the previous application. Indeed, Mr Bird was effectively put in a position where all he could attempt to do was side step or attempt to minimise the credit issue which, I might say, he did in his usual capable fashion. However, to a considerable extent the damage had been done. It seems apparent that neither Mr Bird nor Mr Fehring had any awareness of the existence of the affidavit of 9 October 2007 – see T 114. I have no reason to doubt that in any way.
23 I turn now to the surveillance, the effect of which on credit might not have been quite so profound but which nevertheless had an impact. The principal part of the surveillance upon which attention was focused was the video taken on 27 August last. It concerned the movement of the shell of a car belonging to a son of the plaintiff. This was removed from a shed on the plaintiff’s property and pushed up a ramp onto a trailer. The plaintiff stated that the car went from his property to his son’s property, and the following cross- examination at T 59 then took place, this being prior to the showing of the surveillance material:
“You mean the car went --- ? --- The car went – the car went from
my property to his (son’s) property.
How did that happen? --- He put it on the back of a trailer, a car trailer.
He did? --- We were all there. Yes. He put – he – my older – my older son, the younger one, actually the three boys and his fiancée.
DRAFT
What did you do, stand by? --- I followed – yes, I followed them over ---
No, when they put it on the trailer, what did you do, just stand by?
--- Yes.”24 The film that was taken was, as I observed at the time, long range. However, I have viewed it more than once and I am satisfied of the following. Originally the plaintiff appeared in shorts. After that he appeared in overalls and wearing gloves. On the first attempt to get the car up the ramp onto the trailer he adopted a pushing position on the driver’s side and approximately halfway along the car behind the driver’s door (the car appeared to have no windows). As I saw it, he was then one of those actually pushing the car. He was not, for example, merely calling out instructions to the young lady who was steering. The first attempt to get the car up the ramp was unsuccessful. A second attempt was made. I have been unable to determine whether the plaintiff was actually pushing the car on the second attempt. He was in much the same position. However, he may have been only calling out instructions or guiding the driver as to how to get up the ramp. Whatever was occurring, there is one thing that is clear. During this exercise the plaintiff was not just standing by. He was an active participant in what was occurring. I am not saying that the surveillance material would necessarily be fatal to his claim. However, and bearing in mind that the film in question was taken less than two weeks prior to his giving evidence, his evidence that he was just standing by, when patently he was not, does nothing to enhance his credit.
25 I have spent a considerable amount of time discussing the plaintiff, his credit and his reliability. Such matters are important in every case. In a situation where a plaintiff has suffered an admitted physical injury which has led to some surgery, the importance of credit and reliability might be seen as being of less significance that in a situation where the injury itself is nebulous. However, in this particular case and given the manner in which the plaintiff has elected to present his application, the assessment of the consequences of
DRAFT
impairment must be influenced by the credibility and reliability of the plaintiff. It becomes an issue as to whether the damage to such credit and reliability, particularly in relation to consequences of impairment, is sufficient to defeat an application based upon an admitted physical injury which has required surgical treatment and which, at face value, has been productive of various restrictions and impairments.
(ii) The plaintiff’s education, background and training prior to the injury
26 As the plaintiff is seeking leave in relation to pain and suffering damages only, the amount of detail required under this heading is less than might otherwise be the case. Suffice to say that the plaintiff is aged 55 years, having been born on 2 November 1955. He is a married man with three sons. He had a limited education, finishing school at Year 9. He then completed an apprenticeship as a carpenter, and subsequently worked in that trade in the Edenhope area. He was then employed for some 15 years as a handyman and gardener by the Melbourne City Council. Subsequently he worked as a bus driver for about 10 months, and then for approximately 18 months as a sales assistant and yardman with a firm of timber merchants. He was then unemployed for a period of approximately 18 months, suffered depression at this time. He then obtained a job with the Warrnambool City Council, performing home maintenance for some four years before obtaining the employment with Target that has previously been described. He then obtained employment as a truck driver and yardman with the defendant in approximately May 2006, working full-time and with some overtime. I accept that this work was physically quite demanding and also involved the use of front end loaders, the operation of which required some agility.
(iii) The injury (a) The state of the plaintiff’s health prior to the injury
DRAFT
27 The injury to the plaintiff’s right shoulder has already been discussed. It is apparent that it required both an arthroscopy and an open decompression and repair of the right rotator cuff, and in addition a hydrodilatation procedure was carried out in February 2006. It is also apparent that the plaintiff has required some medication for depression over the years, and that the need for this has continued. It is not suggested that the plaintiff had previously suffered an injury to the left shoulder.
(b) The injury of 12 February 2008, its treatment and assessment 28 As described, the lid of a skip fell upon the plaintiff’s left shoulder on 12 February 2008. He consulted his general practitioner, Dr Baldam, on 14 February 2008. Dr Baldam could detect no bruising but the plaintiff was extremely tender at the tip of the shoulder and down the curve of the deltoid. Dr Baldam advised the plaintiff to rest his shoulder, provided a WorkCover certificate, and prescribed Brufen. When he reviewed the plaintiff on 21 February 2008 the situation was worse and Tramadol was prescribed in addition to Brufen. Physiotherapy was organised, but, there being no progress made, the plaintiff was referred to an orthopaedic surgeon, Mr Sundaram. Mr Sundaram saw the plaintiff on 10 April 2008 and believed that he had symptoms and signs suggestive of rotator cuff pathology. Further conservative treatment was undertaken, this apparently being in the form of physiotherapy and cortisone injections. Dr Baldam organised radiological investigations, and on 18 March 2008 an ultrasound of the plaintiff’s left shoulder revealed a full thickness tear of the supraspinatus on the left side with some associated calcific tendonopathy. There was impingement with abduction in forward flexion whilst the AC joint was tender, and there was a little thickening of the subacromial bursa. No other abnormality was noted.
29 In the meantime the plaintiff has been seen by Mr Ian Zeunert, physiotherapist. Mr Zeunert treated the plaintiff, on average, twice a week with no great beneficial effect. After a cortisone injection in mid-June 2008 the
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plaintiff’s shoulder was still quite painful and limited in movement. However, Mr Zeunert has reported that after this the plaintiff went overseas for a month with his young son on a sports trip. (This part of the history would appear to be inaccurate in a minor fashion. The plaintiff went overseas on a trip to Hong Kong and South Africa, this being associated with his interest in karate, but it would not appear that his son went on the trip.)
30 The plaintiff’s left shoulder did not improve. On 24 July 2008 an MRI organised by Mr Sundaram was performed. This revealed a full thickness tear along the anterior margin at the insertion of the supraspinatus tendon; a large area of tendonitis of the adjacent supraspinatus tendon with possible low grade partial thickness tear on the articular surface; osteoarthritic changes with osteophytes impinging on the myotendinous junction of the supraspinatus tendon; and a small inferolateral subacromial spur. There was a delay until Mr Sundaram performed surgery on 20 July 2009. He then performed arthroscopic examination of the left shoulder. The rotator cuff was decompressed and the torn rotator cuff tendon was repaired. Mr Sundaram describes the post-operative period as being uneventful, and the plaintiff was discharged from hospital. Mr Sundaram again examined the plaintiff on 30 July 2009 when physiotherapy and passive mobilisation of the joint was prescribed. He saw the plaintiff again on 30 September 2009 when the plaintiff was able to flex the shoulder only to 80 degrees. Further physiotherapy and hydrotherapy appear to have been advised.
31 In his report of 29 January 2010 to the plaintiff’s solicitors Mr Sundaram reported that, when the plaintiff was last seen on 20 January 2010, he was pleased with his progress but still had complaints of aching sensation in the night. He was able to elevate the arm to 110 degrees and there were limited shoulder movements. Mr Sundaram recorded that the plaintiff felt that he was able to perform normal duties, and was advised so to do. In that report the conclusion of Mr Sundaram was that the plaintiff had improved significantly
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following surgery, although he had aching sensation in his shoulder at night. He was able to perform most of his activities, and was likely to improve further with time.
32 In a subsequent report of 16 August 2010 Mr Sundaram reported that he had last seen the plaintiff on 4 August 2010. He noted that hydrodilatation had been performed. The plaintiff continued to have an aching sensation in his shoulder at night, and was able to elevate his arm to about 100 degrees or so. Mr Sundaram concluded that the condition of the plaintiff’s shoulder may improve to some extent with time, although the possibility of some residual disability could not be excluded.
33 Mr Zeunert reported that he has seen the plaintiff on a regular basis after the surgery, and gradual progress was made with the plaintiff’s rehabilitation being limited by stiffness in his shoulder rather than pain. The hydrodilatation helped free the plaintiff’s shoulder. According to Mr Zeunert’s report of 25 March 2010, he still had some way to progress before his shoulder was back to normal range. In his report of 11 February 2010, Dr Baldam did not take matters much further. Whilst the plaintiff’s evidence in this regard was a little confusing, it would seem that the only medication that he is taking is Panadol, although he described this as being the equivalent to Panadeine. He also indicated that the Victorian WorkCover Authority had not been paying for medication, and essentially agreed with the proposition that the total amount of chemist expenses paid on his behalf by the Victorian WorkCover Authority was $42. As stated, it was a little hard to follow his evidence in this regard but I gather that he is paying for the Panadol himself.
34 The plaintiff has also been assessed for medico-legal purposes. Mr John O’Brien, orthopaedic surgeon, examined the plaintiff on 23 May 2011. Interestingly, the plaintiff told Mr O’Brien of the injury to the right shoulder, referring to surgery, but stated that such had been reasonably successful and that he had regained reasonably good function although he did describe
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“occasional mild right shoulder pain”. Mr O’Brien felt that the plaintiff presented with signs indicative of adhesive capsulitis of the left shoulder resulting in substantial loss of movement of the glenohumeral joint in all directions. He regarded the condition as stable, the plaintiff indicating that there had been no substantial improvement despite extensive post-operative treatment. Mr O’Brien regarded the prognosis as poor, with no indication of further physical treatment or surgery. He believed that the plaintiff could, with suitable modification, continue in full-time employment but that he remained restricted in relation to his general domestic, social and recreational activities.
35 The defendant has also had the plaintiff assessed for medico-legal purposes. On 30 January 2009 the plaintiff was examined by Mr S F Schofield, orthopaedic surgeon. He reached the conclusion that the history of injury was consistent with the development of a tear in the rotator cuff, probably where there was evidence of previous non-symptomatic degenerative change. Mr Schofield agreed with the surgery which at that stage was still being proposed. Whilst warning that expected work capacity post-surgery could not be determined, Mr Schofield was of the view that the plaintiff should be able to return to his work as a bus driver within four to six weeks of the operation. As Mr Schofield’s report was written prior to the surgery, it is of limited utility.
36 Mr Timothy Gale, surgeon, assessed the plaintiff at the request of the defendant on 10 May 2010. He took a history which included the right shoulder injury, noting that the plaintiff still suffered from some ongoing discomfort including when lying on the right side in bed at night. He was also aware of the surgery to the left shoulder, concluding that the surgery had been marred by persistent restriction in range of movement likely to be due to an adhesive capsulitis which had not been responsive to hydrodilatation or physiotherapy. At the time of this report Mr Gale was of the view that the plaintiff’s impairment had not stabilised. The primary purpose of this examination seems to have been a possible assessment of impairment
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pursuant to the AMA Guides. He examined again on 1 October 2010. On this occasion he believed that the plaintiff’s impairment had stabilised. He noted some wasting of the shoulder girdle muscles and some restriction of movement. There were features of an adhesive capsulitis. He was prepared to make an assessment of permanent impairment, which he put at a whole person impairment of 10 per cent. It is apparent that, again, the making of such an assessment was the primary object of his examination.
37 Whilst the plaintiff has suffered from depression, I am not of the view that there is any psychological or psychiatric condition operating in the present case. Whilst there may be some indication of pre-existing degeneration in the left shoulder, so that the injury sustained could be considered to be in the nature of an aggravation, I am quite satisfied that the plaintiff was asymptomatic insofar as his left shoulder was concerned prior to the relevant incident. If the injury is in the nature of an aggravation, in accordance with the authorities, it is the consequences of the injury as aggravated which I shall consider.
38 The issue of whether or not the impairment and its consequences are permanent within the meaning of the Act is one to which I shall return.
(iv) Other developments since the injury 39 I have already dealt with the history of the plaintiff’s medical treatment. As the present application is one solely in respect of pain and suffering damages, a particularly close scrutiny of the plaintiff’s post-injury employment is not required, although a general appreciation of same does have the potential to impact upon an application such as this. It would seem that the plaintiff returned to employment with the defendant on light duties, but that such employment was terminated in April 2009. That termination of employment would appear to have occurred in circumstances where the plaintiff was accused of driving an excavator into a beam in a shed and damaging same. It would not appear that the cessation of his employment was in any way related
DRAFT
to injury. Subsequently he obtained work with Warrnambool Bus Lines as a
driver, a position which he still holds.40 The first attempted surgery by Mr Sundaram was complicated by the plaintiff undergoing a seizure. There seems to have been an interruption to his employment at this time, and he was also off work for some 19 weeks following the carrying out of the operation on 20 July 2009. He continues to work as a bus driver.
41 The plaintiff agreed that, in his present position as a bus driver, he was earning more now than he had ever previously earned. It would appear that the plaintiff ceased his involvement with karate instruction following the overseas trip to Hong Kong and South Africa relating to that activity in mid- 2008. Of course, this pre-dated the surgery performed by Mr Sundaram but I note that there is no reference to the overseas trip or the karate in the plaintiff’s affidavit. I further note in his affidavit of 19 November 2010 he stated that he has continued to take painkilling medication, up to eight Panadeine tablets a day. I have previously referred to his somewhat confusing evidence as to the medication which he now takes, although it would appear that it is Panadol rather than Panadeine. In any event, the history taken by Mr Burke some two months before the relevant accident was that the plaintiff was then taking between eight and 30 Panadeine tablets per day. In addition, the plaintiff accepted that the total amount paid on behalf of the defendant in respect of chemist expenses relating to this claim was $42 – see T 18 and 19.
Ruling 42
In this somewhat unusual case I am of the view that the plaintiff has failed to discharge the burden of proof. I say this is somewhat unusual because we have a plaintiff who has suffered an admitted traumatic injury to his left shoulder with resultant arthroscopy, decompression and hydrodilatation. There is medicine, pathology and treatment present which one might have
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thought would provide a solid foundation for an application such as this. Indeed, in his closing address, Mr Bird understandably emphasised matters relating to the medicine. Indeed, and as earlier stated, given that the plaintiff had previously undergone surgery to the right shoulder, one might have thought that, in the circumstances where there is an injury to the other arm, a stronger foundation than usual for a claim might exist.
43 In this regard, as Mr Bird said in relation to the earlier affidavit concerning the right shoulder injury at T 114:
“You might think, your Honour that Mr Fehring and I knew about the existence of that affidavit you might think we might have put it right out there. You might think that we would have dealt with it.”
44 However, that was not the manner in which the plaintiff opted to present his case. The manner in which it was presented cast grave doubts on his credit and candour, and caused great uncertainty as to what interference with his lifestyle occurred as a result of the relevant accident as opposed to the consequences that were already operating because of the right shoulder injury. It is to be remembered that the plaintiff bears the burden of proof. In saying that he has failed to discharge it, I would refer to the following factors which are not listed in order of importance of significance.
(a)
Several of the consequences of injury attributed by the plaintiff to the subject left shoulder condition are identical to those which, four months prior to suffering the left shoulder injury, he was attributing on oath to the right shoulder condition. In this regard I would refer to the limitations in relation to activities on the farmlet; fencing and maintaining the farmlet; lifting; interference with sleep; and limitations in relation to social outings and barbecues (these are specifically mentioned in each affidavit). Of course, before he was informed that he was being cross-examined from the earlier affidavit, in his oral evidence the plaintiff also adopted a number of the other restrictions referred to in it as difficulties which he was now encountering because
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of the left shoulder injury. These included such things as the use of the slasher; having his boys mow the lawns for him; house maintenance and painting; difficulty with putting clothes on a line; having the boys usually take the wheelie bins out for him; and difficulties with overhead cupboards and reaching up generally.
Had the plaintiff presented his case in a different way there was a possible explanation that might have meant that the earlier affidavit and the later affidavit and oral evidence were not necessarily in conflict. The plaintiff may have been suffering ongoing difficulties because of his right shoulder condition and then similar difficulties because of the similar left shoulder condition which, against the background of the pre- existing right shoulder problem, may have been magnified. However, he opted not to do this but rather to minimise, if not completely eliminate, restrictions and difficulties resulting from the right shoulder injury, which injury was only described in an almost fleeting fashion. Effectively he opted to place all his “consequence” eggs in one basket – that of the subject injury. This approach came unstuck. Necessarily this has left the court in a state of great uncertainty as to exactly what was going on in relation to the plaintiff’s lifestyle as at the time of the second and subject injury and as to what he has lost, and retained, as a result of it.
(b)
That the nature and consequences of the right shoulder injury were minimised seems to me to be an inescapable conclusion. In his affidavit of 19 November 2010 in the present application the plaintiff simply referred to suffering an injury to his right shoulder whilst working at Target, and the fact that he made a reasonable recovery from this symptom although he did have some ongoing symptoms. He also swore that, “I continue to have some symptoms in my right shoulder, but they are quite mild compared to my left shoulder”. There is no
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reference to the fact that the plaintiff had undergone surgical procedures to the right shoulder which were similar, if not identical, to those carried out on the left. Indeed, the plaintiff has sworn that he first saw Mr Sundaram on 10 April 2008. In relation to treatment to his left shoulder, that would appear to be correct. There is no reference to the fact that it was Mr Sundaram who carried out the earlier surgical procedures to the right shoulder. Whilst what has been sworn to in this regard could be described as being technically accurate, it could also be interpreted as demonstrating a lack of candour.
In opening the case for the plaintiff, Mr Bird referred to the fact that the plaintiff suffered a right shoulder injury whilst at Target from which he made a recovery and which caused him minimal problems today. That is absolutely no criticism of Mr Bird. I have no doubt but that he was opening the case in accordance with his instructions. Essentially it was consistent with what was in the affidavit. The oral evidence of the plaintiff as to his recovery from the right shoulder injury within six months or a year has been set out above. Even after it had been revealed to the plaintiff that he was being cross-examined from the earlier affidavit, he still stated that “I got back to normal within the year with my right shoulder, yes” – see T 42. Of course, this does not sit at all with what is contained in the earlier affidavit or what was told to Mr Burke. Even when the contents of the earlier affidavit were again put to the plaintiff, in relation to his right shoulder problems as at the time of swearing that affidavit he stated “minor problems but I wouldn’t call them serious” – see T 51. Of course, by this stage of the cross- examination the plaintiff was in a very difficult situation.
In relation to the treatment of his right shoulder, the following is set out in the plaintiff’s affidavit of 10 October 2007:
“On 8 August 2005 My Sundaram operated on my shoulder at St John of God Hospital. I believe this
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operation was decompression and repair of the right rotator cuff. I was an inpatient at the hospital for about three days and was off work for about six weeks. When I was discharged from hospital, my wife looked after me at home and I attended Mr Sundaram for follow-up examination and monitoring. I was wearing a brace and sling at this time. I believe staples and a screw were inserted into my shoulder.”
Not even a passing reference to this surgery is to be found in the plaintiff’s later affidavit or was made prior to the contents of the earlier affidavit being outlined in cross-examination. Furthermore, the earlier affidavit also refers to the fact that, because of ongoing pain and limited movement of the shoulder, in January 2006 Mr Sundaram organised hydrodilatation of the right shoulder which, according to the plaintiff’s earlier affidavit, did not lead to any real improvement in his condition. In May 2006 the plaintiff had an injection of hydrocortisone and local anaesthetic and this also did not provide any real improvement. Again, prior to cross-examination, there was no mention of these matters.
(c)
Thus, Mr Sundaram was the operating surgeon in relation to the right shoulder. However, his report of 29 January 2010 in the present case makes no reference to this and simply commences with the referral by Dr Baldam on 10 April 2008. Mr Zeunert was the physiotherapist in respect of the right shoulder injury. His report of 25 March 2010 in the present case simply starts “I first assessed and treated Mr Robert Raitt on 13 March 2008”. There is no reference to the earlier right shoulder problems. This is not necessarily any criticism of either Mr Sundaram or Mr Zeunert. Each may have been confining their reports to matters upon which they were asked to comment in relation to the left shoulder. Nevertheless, it seems a trifle unusual that neither refer to the very similar problems and treatment which the plaintiff had in relation to the right shoulder. The same could possibly be said of Dr Baldam who also originally saw the plaintiff for the right shoulder injury, although Dr Grave, of the same practice, subsequently took over the plaintiff’s
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management. In any event, Dr Baldam, whilst not mentioning the right shoulder injury, makes it reasonably clear in his report of 11 February 2010 that the plaintiff’s solicitors had requested a report from him in relation to the plaintiff’s left shoulder injury and that is what he provided.
(d)
If the history given by the plaintiff to Mr Burke on 11 December 2007 is accurate, he is in fact now taking less medication than he did prior to the injury to the left shoulder. He told Mr Burke that he was taking between eight and 30 Panadeine tablets per day for pain relief, whereas in his affidavit of 19 November 2010 he swore that he was taking up to eight Panadeine tablets a day. Indeed, he accepted that the total amount paid on behalf of the defendant for pharmaceutical expenses has been $42. The plaintiff gave evidence that he still attends his general practitioner for prescriptions and still takes a lot of medication, although he seemed to be somewhat confused as to whether he has been taking Panadol or Panadeine – see T 18. I appreciate that medication consumption is only one of a number of matters that may be relevant when attempting to assess the level of pain and suffering, but in the present case on the disclosed evidence, bearing in mind the history given to the Mr Burke and the other material, it seems highly doubtful that the plaintiff is now taking more medication than he did prior to suffering the left shoulder injury. The probability seems to be that he is taking less.
(e)
In relation to the plaintiff’s employment activities, he agreed that he is now earning more money in his present occupation as a bus driver than he has ever previously earned. He also agreed that, whilst the circumstances of his cessation of employment with the defendant are not set out in his more recent affidavit, in fact he was dismissed for driving an excavator into a beam and damaging it. He was on light
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duties at the time. The plaintiff accepted in cross-examination that he did not cease work with the defendant because of his injury. He is now in full-time employment with some overtime and earning more than he has previously earned. I appreciate that leave in respect of pecuniary loss is not pursued, but it would certainly be difficult to argue that, in the circumstances, the plaintiff has been deprived of the enjoyment associated in engaging in employment generally or in a particular occupation. In this regard generally I would refer to the observations of Chernov JA in Sumbol v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 at paragraph 24, which observations have been the subject of discussion in subsequent decisions of the Court of Appeal. I treat this factor as simply another one to be considered.
(f)
The surveillance of the plaintiff also had some damaging effect upon his credit. Whilst my impression is that he was assisting with others to push the car in question up a ramp onto a trailer, even if he were not actually pushing it is apparent that he had changed into work clothes and was not simply standing by. He was an active participant in what was going on. This did not sit comfortably with his evidence.
(g)
I return to the major problem which the plaintiff created for himself by his evidence concerning his recovery from the right shoulder injury and how this contrasts with what he had previously sworn and what he had told Mr Burke. His credit was badly damaged. Mr Bird, in his closing address, referred to the affidavit of 2007 as being an iron bar wielded by Mr Scanlon. Essentially he submitted that, despite this, a combination of the medicine and areas that were not challenged were sufficient for the plaintiff to discharge the burden of proof. However, I am of the view that they are not so sufficient. The credit matters have made it difficult, if not impossible, for me to determine with any
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confidence the consequences of the relevant impairment in terms of
what has been lost and what has been retained.
(h)
Further, the difficulty in determining what has been lost and what has been retained creates problems in relation to the permanence of impairment and its consequences. In addition, the more recent report from Mr Sundaram, the treating surgeon, indicates that he is far from definite about the permanence of the situation. His report of 16 August 2010 concludes: “The condition of his shoulder may improve to some extent, with time. Although some residual disability cannot be excluded.” Certainly Mr O’Brien considered the plaintiff’s clinical condition to be stable and the prognosis to be poor. He thought the plaintiff fit to continue with modified duties on a permanent basis. Mr Gale was prepared to make an assessment of Whole Person Impairment pursuant to the AMA Guides, and permanence is a pre- requisite for this. However, bearing in mind the manner in which the plaintiff presented his case, it is difficult to assess the level of any permanent impairment resulting from the subject accident and the consequences which result from it. Whether those consequences are permanent is also difficult to assess. Effectively the plaintiff has sworn that the consequences following almost identical surgery to the right shoulder were temporary, and, of course, it is this that got him into the substantial difficulties referred to above. In addition to what has been previously said, my opinion is that the plaintiff has failed to discharge the burden of proof in relation to the issue of permanence.
Conclusion
45 The plaintiff has failed to discharge the burden of proof and the application is dismissed. I shall hear the parties as to any ancillary orders that are required.
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