Rotondo v Boral Window Systems Pty Ltd
[2014] VCC 1452
•18 September 2014
| IN THE COUNTY COURT OF VICTORIA AT WANGARATTA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-14-01592
| ROBERT FRANK ROTONDO | Plaintiff |
| v | |
| BORAL WINDOW SYSTEMS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 29 August 2014 | |
DATE OF JUDGMENT: | 18 September 2014 | |
CASE MAY BE CITED AS: | Rotondo v Boral Window Systems Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1452 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury application – injury to the right upper limb – pain and suffering only – range case
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702
Judgment: Leave granted to the plaintiff to bring proceedings for damages for pain and suffering in respect to injury to the right upper limb suffered during the course of his employment with the defendant on or about 20 August 2010.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P A Jewell QC with Mr S J Carson | Maurice Blackburn Pty Ltd |
| For the Defendant | Ms K A Galpin | IDP Lawyers Pty Ltd |
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 the plaintiff in the course of his employment with the defendant on or about 20 August 2010.
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 a body function.”
5 The body function relied upon in this application is the right upper limb.
6 The plaintiff relied upon one affidavit, sworn by him on 4 November 2013. The plaintiff was cross-examined. I have not summarised the affidavit and the further evidence the plaintiff gave; however, I will refer to the relevant evidence of the plaintiff 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]
[2]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(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 upper limb 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]
[3]Barwon Spinners (supra) at paragraph [33]
[4]Section 134AB(38)(b) and (c)
9 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.
10 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[5]
“The emphasis in s 134AB(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. … .”[6]
[5][2009] VSCA 181
[6](supra) at paragraph [42]
11 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[7]
[7]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [44]
12 The test for “serious”, as set out in paragraphs (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
13 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”;[8]
[8]Section 134AB(38)(h)
(b) must make the assessment of “serious injury” at the time the application is heard;[9]
(b) 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.[10]
[9]Section 134AB(38)(j) of the Act
[10] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The Issue
14 Counsel for the defendant informed the Court that this is a “range case”, namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked and as being at least very considerable”, when compared to other cases in the range.
Investigations
15 On 26 October 2010, an x-ray and ultrasound of the right shoulder were performed. The conclusion was tendinopathy of both the supraspinatus and subscapularis tendons, and a full-thickness tear of the longhead of biceps tendon from its origin.
16 On 10 December 2010, an MRI scan of the right shoulder concluded:
“1Subscapularis tendonosis. Degenerative anterior labral tear;
2Absent long head of biceps tendon consistent with disruption;
3Mild AC joint OA with mild inferior acromion enthesophyte causing mild narrowing [of] subacromial space. Minimal fluid subacromion/sub-deltoid bursa and mild supraspinatus tendonosis.”
17 On 15 November 2011, an x-ray of the left shoulder showed:
“There are no bony or soft tissue abnormalities. The glenohumeral and AC joints are appropriately enlocated. No glenohumeral of AC joint arthropathy is apparent. The sub-acromial space is not significantly narrowed and no rotator cuff tendon calcification is seen.”
18 An ultrasound of the left shoulder on 15 November 2011 concluded subacromial subdeltoid bursitis.
The Plaintiff’s medical reports
Dr Greg Waller
19 Dr Waller, general practitioner, provided medical reports dated 6 November 2011, 9 January 2012 and 9 June 2012.
20 In November 2011, Dr Waller reported that the plaintiff consulted him in October 2010. He complained of a popping sensation in the front of his shoulder with mild pain in the biceps. When lifting a heavy window at work he suffered severe pain in the biceps and anterior shoulder. Dr Waller arranged investigations including x-ray, ultrasound and MRI scan of the right shoulder. Dr Waller referred the plaintiff to Mr Chew, orthopaedic surgeon, who then referred the plaintiff to physiotherapy and recommended he avoid heavy lifting and carrying. The plaintiff continued to work. He was using more powerful drills for the work he was required to perform, and he was using a different posture whilst screwing or drilling to reduce the amount of abduction of the arm from the body and by leaning his torso to the left. This had the consequence of increased stiffness and soreness of his neck muscles which required physiotherapy. He developed headaches. In August 2011, Dr Waller referred the plaintiff to Mr Carr, orthopaedic surgeon, who specialises in shoulders.
21 Dr Waller said the plaintiff could continue working in his modified duties at the time, but should refrain from lifting more than 10 kilograms. Also, raising his arms to drill down into frames was not ideal. Physiotherapy was required to help reduce muscle spasms and prevent headaches due to changes in posture.
22 If symptoms worsened, Dr Waller said there would be an indication for steroid injection to the subacromial space. He noted the plaintiff was reluctant to undergo steroid injections due to his beliefs in naturopathy. He said further treatment in the form of surgery to decompress the subacromial space may be necessary, but his symptoms would need to be more severe than at that time.
23 In January 2012, Dr Waller said the plaintiff reported managing most of his pre-injury duties. However, he still required physiotherapy to help reduce muscle spasm and prevent headaches due to the change in posture the injury had imposed upon him. Dr Waller said that if his symptoms worsened, there could be an indication for steroid injection to the subacromial space, but the plaintiff was reluctant to undergo such a procedure. He confirmed that further treatment might involve surgery to decompress the subacromial space, but symptoms would need to be more severe than they were at that time.
24 In June 2012, Dr Waller confirmed the plaintiff underwent an ultrasound of his left shoulder which showed thickening of his subacromial bursa with impingement on abducting his arm. The plaintiff reported that he requires the use of both arms when stretching his arms apart to grasp the window frame when turning it over. Dr Waller reported that movement will be contributing to the presence of bursitis as it will continue to cause impingement. Dr Waller said the problem developed over years of activity, but the increased use of the left arm is a direct consequence of his right shoulder injury.
25 Dr Waller’s medical records were produced to the Court. They confirm that the plaintiff was attending Dr Waller’s surgery regularly and reporting on his injury.
Mr David Chew
26 In December 2010, Mr Chew, orthopaedic surgeon, medically examined the plaintiff on referral from the plaintiff’s general practitioner. It was his view that the severity of the plaintiff’s shoulder did not warrant invasive treatment. He recommended the plaintiff adjust his employment to avoid heavy lifting and carrying. He said if the symptoms attributable to his supraspinatus tendinopathy become worse, he may benefit from a subacromial injection, but that the plaintiff was not keen to proceed.
Mr Ashley Carr
27 In August 2011, Mr Carr, orthopaedic surgeon, saw the plaintiff on referral from his general practitioner. He said the plaintiff had retraction of the biceps belly, and he described a longhead biceps rupture. The plaintiff’s discomfort with overhead lifting tasks resulted in a modification to his duties. The plaintiff complains of discomfort in his scapular and neck region which has improved with weekly physiotherapy sessions.
28 On examination, Mr Carr said the range of motion is maintained. He suffers spasms in his biceps. His right biceps belly is retracted to his lower limb. His supraspinatus initiation strength remains normal and his impingement test is negative. He said the plaintiff had mild degeneration of the AC joint.
29 Mr Carr said there was no surgical solution for a chronic longheaded biceps rupture. If his symptoms attributable to his supraspinatus tendinopathy become worse, he may benefit from a subacromial injection, which he noted the plaintiff was not keen to proceed with.
Mr Michael Shannon
30 In April and November 2012, Mr Shannon, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s insurer.
31 In April 2012, Mr Shannon diagnosed a rupture of the longhead of biceps, associated subacromial bursitis and rotator cuff degeneration in the right shoulder. He said the shoulder was vulnerable to further injury. He said the injury occurred on a background of rotator cuff degeneration with probably mild bursitis and impingement. Further, the biceps rupture, of itself, although of cosmetic significance, did not interfere seriously with the functioning of his arm. He said the plaintiff has restriction of movement of his shoulder associated with subacromial bursitis and mild impingement. He provided an impairment assessment.
32 In November 2012, Mr Shannon was requested to provide a dual-purpose impairment assessment for a claimed injury to the left shoulder. Mr Shannon reported that the plaintiff was reluctant to have a cortisone injection, and physiotherapy for his right shoulder had ceased. The plaintiff was using a TENS machine. He developed symptoms in his left shoulder; he was on a 10-kilogram lifting restriction and was no longer performing any overhead work. He reported using his left arm to protect the right.
33 In respect to the left shoulder, Mr Shannon said the plaintiff had subacromial bursitis with impingement. The prognosis is for his shoulder to be vulnerable to further injury.
34 In respect to the left shoulder, Mr Shannon said the plaintiff continued to perform his normal occupation but with restrictions on lifting, which is consistent with overusing his left shoulder to protect the right shoulder or two-handed activities such as using a hacksaw. He issued a whole-person impairment for the left shoulder, which he said was a separate claim from the previous right shoulder claim.
The Defendant’s medical reports
Mr Michael Long
35 In October 2011, Mr Long, general surgeon, examined the plaintiff at the request of the defendant’s insurer.
36 The plaintiff reported continuing painful restriction of movement of the right shoulder, particularly when working above shoulder height. Mr Long reported:
“Pain anterior aspect right shoulder, right upper arm on attempting to screw objects by hand or when applying pressure as required with his work when riveting and using screwing tools.”
37 The plaintiff reported he had been able to adapt his work in spite of the painful restriction. He was making more use of air-operated tools, and he avoided manual screwing by using battery-operated drills and screwdrivers. He reported tension headaches since suffering the injury.
38 At the time, the plaintiff reported that driving was more comfortable when the right hand was low on the steering wheel. He reported riding a bicycle and motorcycle but found it more comfortable to have handlebars set low. He undertook some woodwork and played restricted golf.
39 Mr Long said the rupture of the longhead of biceps, and probably the tearing of the anterior labral glenoid and the tendonosis of his rotator cuff, are directly related to work. Surgical treatment was not indicated at the time. The pre-existing demonstrated osteoarthritis of the AC joint is considered not to be responsible for his symptoms. He said physiotherapy was no longer appropriate.
40 Mr Long said the plaintiff continued work with modifications to his activity. In particular, activity which caused pain when he lifted his right arm above shoulder height, and movements involving pronation and supination of his right forearm. Mr Long reported the plaintiff could continue pre-injury work, with restrictions to avoid that type of work which aggravates his pain.
Credit
41 The plaintiff’s credit was not in issue. The plaintiff answered questions directly. He gave his evidence without embellishment, and appeared straightforward in his presentation. He made concessions. For example, the plaintiff said that he attended his general practitioner for review and for WorkCover certificates. The plaintiff said Dr Waller suggested steroids may help, but has not prescribed medication for his shoulder. The plaintiff agreed he was prescribed Celebrex medication for his left wrist, but did not take it.[11] He agreed that as a result of his injury, he did not take time off work. I formed the view that he was a genuine witness.
[11]Transcript 10
Analysis of the evidence
42 It was not in dispute that the plaintiff suffered a work-related injury to the right upper limb.
43 All medical witnesses agreed that the plaintiff suffered a rupture of the longhead of biceps tendon, which occurred in a background of rotator cuff degeneration with probable mild bursitis and impingement. Most agreed that surgery was inappropriate for the longhead biceps rupture. Cosmetically, it was significant, but does not seriously interfere with the function of his arm. All were informed that he had discomfort with overhead lifting tasks in particular, and that he modified his work duties. All accepted that he had restricted movement of his shoulder which was associated with the subacromial bursitis and impingement. All said he could perform his work with restrictions. Dr Waller said he should not lift in excess of 10 kilograms. Mr Chew said he should adjust his employment so that others do the heavy lifting and carrying. The plaintiff reported to Mr Shannon that he avoids lifting more than 5 kilograms. The plaintiff’s evidence in cross-examination was that he lifted more than 5 kilograms when necessary. Mr Shannon accepted he has restriction of movement of his right shoulder, and accepted that the right shoulder is vulnerable to further injury. Mr Long said he can continue working, but with restrictions. Some witnesses said he may benefit from a subacromial injection.[12] However, the plaintiff was reluctant to proceed with the injection treatment.
[12]Mr Carr, Dr Waller
44 In November 2012, Mr Shannon assessed the plaintiff in respect of the left shoulder for an impairment assessment. Mr Shannon said the plaintiff developed a subacromial bursitis with impingement in the left shoulder. The prognosis for his left shoulder was that it is vulnerable to further injury. Mr Shannon accepted that the plaintiff continued to perform his pre-injury work with restrictions, and said it was consistent that he had been overusing his left shoulder to protect the right shoulder or performing two‑handed activities. Dr Waller said the increased use of the left arm is a direct consequence of the right shoulder injury. He said the plaintiff first reported receiving physiotherapy treatment for pain in the left shoulder in March 2011. The other medical witnesses were not informed of this consequence.
45 I must make the assessment at the time of hearing the application. Notably, there were no up-to-date medical reports relating to the plaintiff. The most recent were the reports of Mr Shannon in 2012, which were for the purpose of providing impairment assessments. The current medical evidence was limited to the general practitioner’s medical records. These records confirmed that the plaintiff attended upon his general practitioner in respect of his right shoulder injury for the purposes of obtaining WorkCover certificates and reporting his progress. Those entries indicate that the plaintiff managed his condition with some residual pain and ongoing right shoulder restrictions, and reported his left arm shoulder pain.
46 I accept the medical evidence is that the plaintiff suffered a rupture of the longhead of biceps which occurred on a background of rotator cuff degeneration with probably mild bursitis and impingement. The medical evidence is that he could perform his work activities with restrictions. The medical evidence is that it is unlikely that he will require surgery.
47 In August 2013, the plaintiff’s general practitioner discussed surgical/steroid options, which the plaintiff declined. Mr Carr also discussed with the plaintiff the possibility of steroid injections. Dr Waller noted that the plaintiff was reluctant to accept injection treatment due to his belief in naturopathy. Dr Waller recorded raising this issue in his medical records as recently as April 2014 in respect of the left shoulder.
48 The plaintiff’s evidence is that he retired at the end of June 2014. Since that time, there has been no change in the pain in his right shoulder.
49 The plaintiff’s evidence was that he suffered other medical conditions. He was diagnosed with Paget’s disease of both femurs, and hypertriglyceridemia, which means his is a borderline diabetic. It is not suggested that his other medical conditions are in any way related or affected by the right shoulder injury.
50 I accept that there are several consequences attributable to the plaintiff’s injury. The issue is whether the consequences of the injury satisfy the statutory test, which I will examine in turn.
51 The evidence is that the plaintiff attends his general practitioner for the purposes of obtaining WorkCover certificates. He takes no medication for his shoulders as he has not been able to obtain a guarantee that the medication will not create more problems.[13] The plaintiff practised as a naturopath for twelve years. In cross-examination, he agreed that he had not received medical advice that pain medication should not be taken for his shoulder because of his Paget’s disease.[14] In re-examination, he said he had second thoughts about the steroids, which he raised with the doctors at the time. He believed the steroids would have a negative effect on the Paget’s condition. I accept the level of medical intervention the plaintiff has is at the low end of the scale. I accept that the medical witnesses have raised with the plaintiff the use of steroid injections, but that the plaintiff has declined such treatment because of his beliefs in naturopathy.
[13]Transcript 5, L26-29
[14]Transcript 14
52 The plaintiff said he has pain in his right shoulder and right upper arm. The pain spreads into his neck, and he suffers from headaches generally when the shoulder and arm pain flares up. To accommodate the pain, he uses a TENS machine weekly or fortnightly for approximately thirty minutes. He applies the machine generally in the front or back of the right shoulder, which provides relief and makes the pain more manageable. He said the pain never goes away, the pain is continual.
53 The current medical records of the plaintiff’s general practitioner note, on occasions, that the plaintiff complained of:
§ headaches related to increased muscle tension from a shoulder injury;
§ being aware of shoulder pain all the time but manages it;[15]
[15]21 June 2013
§ getting more aching in the cold, aching like a toothache;[16]
[16]24 May 2013
§ no changes to right shoulder/arm ability/movements; symptoms remain;[17]
[17]10 October 2013
§ no new changes, working well and no further concern;[18]
[18]7 November 2013
§ no changes, some residual pain, working well;[19]
[19]5 December 2013
§ managing well on current conditions at work; some tenderness over right biceps region; advise heat pack; avoid triggers and Panadol; feels can handle and aware of how to manage;[20]
[20]3 March 2014
§ right biceps tendon rupture; limited duties as detailed; no clinical changes in right arm; working as usual; nil complaint; playing golf on weekend; no concerns;[21]
[21]31 March 2014
§ left shoulder pain, now painful; limited range of movement;[22]
[22]9 April 2014
§ left partial thickness rotator cuff tear of supraspinatus;[23]
§ stable and no changes clinically.[24]
[23]16 April 2014
[24]30 April 2014
54 I accept the plaintiff’s evidence in relation to the description of pain in his right shoulder, and that the pain never goes away. I accept that for much of the time he is able to manage the pain by the use of a TENS machine. The plaintiff’s evidence was that he suffers from headaches which generally come on when the shoulder and arm pain flares up. He has reported the pain to his general practitioner. I accept the reports of headaches are intermittent. I accept the experience of pain for the plaintiff is a consequence I can take into account.
55 In relation to work, the plaintiff said he suffered pain if he tries to screw into an object with his right arm. The front of the right shoulder is very painful indeed. Being right handed, this is a real problem for him. He adapted the way he worked. He used more air-operated tools or battery-operated drills and screwdrivers where possible. He tried to rest the right arm when he could, and would simply stop doing a task when the pain became too much. He said that any heavy lifting was done by somebody else. He reported his work restrictions to all doctors he saw.
56 I accept that whilst the plaintiff was at work, he performed his work with restrictions and assistance. However, the plaintiff is now retired since June 2014. I must assess the plaintiff at the time of hearing the application. Accordingly, I cannot take into account his work-related consequences.
57 The plaintiff’s evidence, which was unchallenged, was that most day-to-day tasks are in some way compromised. Something as simple as using a tap or holding a steering wheel becomes painful. The plaintiff’s evidence was that when driving, he holds the steering wheel with his right hand at the bottom of the steering wheel. I accept that these are consequences I can take into account.
58 The plaintiff’s evidence is that his sleep is not good. He has ongoing problems with pain at night. The pain makes it hard to get to sleep and then wakes him once he has fallen asleep. He feels tired during the day as a result. This makes it harder to tolerate the pain and limitations that he has.
59 In December 2010, the plaintiff reported to Mr Chew that he does not have much in the way of night pain. In cross-examination, he said he did not think that was correct. He said “I still have ongoing problems with pain at night, sleeping”.[25] In April 2012, the plaintiff reported no night pain to Mr Shannon. I accept that the plaintiff was recording no night pain in December 2010 and April 2012. The medical records of the general practitioner make no reference to complaints the plaintiff has with sleep. I accept that any difficulty with sleep the plaintiff has had since April 2012 has not been reported to his general practitioner and is likely to be at the low end of the scale. This is a consequence I can take into account.
[25]Transcript 11, L9-10
60 In cross-examination, the plaintiff said when taking off or putting on a shirt, it catches when lifting things away from his body in the abduction movement.[26] In Court, the plaintiff removed his shirt to show the retraction of the biceps belly of the right shoulder. I noted that he protected his shoulder in removing and putting on his shirt. I accept that this is a consequence I can take into account.
[26]Transcript 11
61 The plaintiff’s evidence is that he is no longer able to enjoy ten-pin bowling due to his right shoulder injury. He feels a great sense of loss about that. Further, he was a keen motorbike rider, having owned a Harley-Davison motorbike and ridden a motorbike for fifty years. It was a heavy bike, and he found the pressure holding the handlebars was too painful; he could not manoeuvre the bike. He sold his motorbike. This was a significant loss to him, as he and his son regularly enjoyed bike riding together. He misses this activity with his son. The loss of ten-pin bowling and, in particular, the loss of an activity such as motorbike riding, is a serious consequence that I can take into account.
62 The plaintiff is a keen golfer. The plaintiff’s evidence was he continues to play golf; however, his swing has been “restricted dramatically”.[27] Conservatively, he has lost probably 30 metres of distance. As a result, his handicap has gone from 17 to 20 or 21. He said he no longer lifts his clubs out of the bag. He grabs them down low and flicks the club out of the bag. I accept that as a consequence of his injury, the plaintiff has had to modify his game of golf to take into account his right shoulder injury.
[27]Transcript 13, L16
63 The plaintiff’s evidence was that, in adapting how he does things with his right arm, he has relied on his left arm more. Over time, this has resulted in the left arm becoming increasingly painful. This has become a problem for him. He reported this to his general practitioner and to Mr Shannon.
64 In cross-examination, the plaintiff agreed in March 2013 that he reported to Dr Waller the right shoulder was holding up “okay”.[28] He had occasional problems with abducting his left arm, causing some impingement from subacromial bursitis. He had difficulty lifting items over 30 kilograms, but managed by dragging items across the bench, and he managed to use a straight arm. He said the moment the bicep comes into play:
“… there’s no way I could lift that weight.”[29]
[28]Transcript 7, L6
[29]Transcript 8, L18-20
65 In November 2012, Mr Shannon was requested to re-examine the plaintiff for the purpose of providing a dual-purpose impairment assessment for a claimed injury to the left shoulder. The plaintiff reported to Mr Shannon that he first experienced symptoms in the left shoulder about a year ago which he attributed to protecting his right shoulder. He developed soreness in his left biceps and attended his general practitioner. An ultrasound was performed, which showed bursitis in the shoulder. He has used a TENS machine. He was concerned about having a cortisone injection. He had no physiotherapy, because physiotherapy for his right shoulder had ceased. Mr Shannon diagnosed a subacromial bursitis with impingement, and said his shoulder was vulnerable to further injury. He thought it was consistent that he had been overusing his left shoulder to protect the right shoulder or performing two-handed activities. This was also consistent with the general practitioner’s comments. I accept that the injury to the left shoulder is a consequence of the right shoulder injury. I note Mr Shannon considers that the left arm is now vulnerable further to injury. I consider this is a significant consequence that I can take into account. I accept that as a consequence of the injury, the plaintiff has two vulnerable arms.
66 Counsel for the plaintiff submitted that the plaintiff was himself a stoic individual. He has not had much treatment. He stayed at work and worked around his injury, until his retirement in June 2014. He has shown himself to be a stoic individual and ought not to be penalised for that.
67 My view is that the plaintiff presented as stoical. He was not given to exaggeration and he gave his evidence in a most uncomplaining way. He was straightforward in his presentation. Further, he worked as a naturopath for twelve years. I accept the injury suffered by a stoical plaintiff is not to be viewed any less seriously because he manages to remain more active than might have been expected given the level of pain. I adopt Nettle JA’s comments in the case of Dwyer v Calco Timbers Pty Ltd [No 2]:[30]
“… I suspect that, but for the way in which the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well not have disputed his claim. It is unnecessary for present purposes to reach a concluded view about that and I have not done so. But it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[30][2008] VSCA 260 at paragraph [3]
68 The issue was whether the consequences of the plaintiff’s injury meet the test of seriousness, in that they could be considered “more than significant or marked, and as being at least very considerable” when compared to other cases in the range.
69 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said:
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .” [31]
[31]Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702 at 170
70 Section 134AB(38)(c) of the Act was intended to restrict the availability of common-law damages only to impairments which are of “very considerable” magnitude. I am entitled to consider the significance of what has been lost by the plaintiff due to his injury, as well as what has been retained.[32]
[32]Stijepic v One Force Group Aust Pty Ltd (supra) per Ashley JA and Beach AJA at paragraph [44]
71 The plaintiff retains the capacity to participate in activities, including golf, and to undertake, until June 2014, full-time work of the kind he was performing prior to his work injury, albeit with assistance. He drives his motor vehicle.
72 However, the plaintiff’s right shoulder injury has had a marked effect on his life. I accept that the plaintiff has residual symptoms with his right shoulder, including pain which he accommodates by using the TENS machine. I accept the plaintiff’s evidence that there is constant pain, which does not recede entirely, but only becomes “manageable”[33] with the TENS machine. Further, there is pain with certain activities such as lifting things away from his body. For instance, I accept the plaintiff’s evidence that he sometimes has pain when he puts on or takes off his shirt.[34] He was asked to remove his shirt in Court in order to demonstrate his arm, and I observed the plaintiff with some tentative or hesitant movement in putting his shirt back on.
[33]Transcript 6
[34]Transcript 11
73 The level of medical treatment the plaintiff receives is at the low end of the scale. However, I accept that the plaintiff is stoical. I further accept that the plaintiff’s twelve-year history as a naturopath informs his reluctance to accept injection treatment.
74 I accept that Mr Shannon expressed the view that the plaintiff’s right shoulder is vulnerable to further injury.
75 As a consequence of the plaintiff’s right shoulder injury, he developed pain in his left arm. Mr Shannon says the left arm is also vulnerable to further injury. I accept this is a consequence of relying on the left limb to better protect his right limb which suffered a work injury. I am satisfied that the consequences to the left limb are permanent, based on the medical evidence. I consider that is a serious consequence to this plaintiff.
76 Further, I take into account his age, being sixty-six, and that his retirement will be compromised because of the right upper limb injury. The plaintiff sold his motorbike, which is an activity he enjoyed very much for some fifty years. This is an activity he previously enjoyed with his son. The plaintiff has retained the ability to play golf, although his handicap has worsened. He is no longer able to play ten-pin bowling. The plaintiff drives his motor vehicle, but holds the steering wheel a particular way.
77 Taking all the evidence into account, I am satisfied it is fair to describe the pain and suffering consequences of the plaintiff’s left limb as being “more than significant or marked”, and properly regarded as “very considerable” when judged by a comparison with other cases in the range.
78 In reaching that conclusion, I have made a comparison with other cases in the range of possible impairments. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s134AB(38)(h) of the Act. I am satisfied that the consequence of the left limb injury is permanent given the evidence from all medical witnesses. The plaintiff therefore satisfies the narrative test for pain and suffering.
79 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering in respect to the right upper limb is successful.
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