Saunders v Jardan Australia Pty Ltd
[2019] VCC 775
•5 June 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-03690
| MICHAEL SAUNDERS | Plaintiff |
| v | |
| JARDAN AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17, 20 May 2019 | |
DATE OF JUDGMENT: | 5 June 2019 | |
CASE MAY BE CITED AS: | Saunders v Jardan Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 775 | |
REASONS FOR JUDGMENT
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Subject: SERIOUS INJURY APPLICATION
Catchwords: Upholsterer aged 67; ceased work following alleged injury to dominant right shoulder; particular incident alleged to have led to injury not made out; plaintiff sustaining injury in course of employment; whether injury serious for purposes of Workplace Injury Rehabilitation and Compensation Act 2013
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Lu v Mediterranean Shoes Pty Ltd (2001) 1 VR 511; Salita v Eastern Health [2018] VCC 1125; Johnson v Roads Corporation (10 April 2017)
Judgment: Leave to bring a damages claim granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S. Smith QC with | Hymans Solicitors |
| Ms J. Clark | ||
| For the Defendant | Ms S. Manova | Thomson Geer |
HIS HONOUR:
Background
1 Mr Saunders was born in 1949 in Brighton in England. In 1980 he migrated to Australia. He is an upholsterer, having worked in that trade, for the first time in 1964, for a number of employers in England, and then for a number of companies in the same trade in Australia.
2 In September 2000, he began work with the defendant, Jardan Australia Pty Ltd (“Jardan”), once again as an upholsterer. (Plaintiff’s Court Book (“PCB”) 11-12) He described his work for the defendant as follows:
“My role was again that of an upholsterer, which involved making, rebuilding and repairing upholstered items of furniture, predominantly sofas, couches, ottomans and similar items, working in the assembly area. In essence my job was to secure material to the furniture items required to be upholstered, this also involved me repeatedly pulling and stretching webbing with both my arms so the webbing could be stapled to the furniture frame. The role also included additional manual tasks like lifting and manoeuvring heavy furniture on a regular basis. Jardan only employed one driver and he always required assistance.” (PCB 12-13, paragraph [11])
3 According to Mr Saunders, he “experienced dull aches in [his] right shoulder during the course of my work.” I take that to mean that these dull aches persisted on a long term basis over the years of his employment with Jardan. Mr Saunders also complained of injury in a particular incident. He said that on 5 February 2016 he, “aggravated [his] right shoulder while lifting a large piece of furniture, a table made from American oak that was over 2 metres long.” 5 February was a Friday and the incident occurred, he said, at around 11.00am. He said he was asked to move the heavy table “unloading it from the back of the truck with seven other co-workers.” (PCB 14, paragraphs [17] and [18]) Mr Saunders said that the truck had no hydraulic tailgate or lift system and the truck was not parked in a loading dock. “Therefore this table had to be lifted down manually. While I stood below the table and the others above it passing it down, it slipped and struck me on the right shoulder, I was then able to catch the table again before it was damaged, but this caused a bit of jarring.” (ibid, paragraph [19]) This event, on his account, occurred about an hour before knock off time. Over that hour the pain got worse, “around the right shoulder and front of the right arm. [He] had throbbing pain and found it difficult to move [his] arm and [he] had to be driven home.” (ibid, paragraphs [19]–[20]) As will appear in later affidavits the details of the incident given by Mr Saunders were modified in some significant respects.
4 On Monday, 8 February, Mr Saunders went to work and worked a full day. (Transcript (“T”) 28, L16-18) According to his account in cross-examination, Mr Saunders worked his normal hours on Monday, undertaking his normal duties. (T51, L19-25) He did not ask for lighter work because of his shoulder pain but performed his normal duties involving heavy lifting and stretching. (ibid, L26-30) In re-examination, however, he described his work day on the Monday in a manner that one would not have guessed from his answers in cross-examination. In re-examination he said he had difficulty coping with his work on the Monday:
“It was difficult. So what I done on the Monday, I didn't actually work on the bench, I didn't actually produce anything and I done light duties inasmuch as health and safety. I went down to the factory inspecting, doing inspections.
Because you were the OH&S officer?---Yes.
So one of the things you had to do was inspections, is that right?---Yes.
And that's what you did on the 8th?---That's what I did on the Monday.” (T93, L28 – T94, L7)
5 This evidence emerged in re-examination. Defendant’s counsel had no opportunity to explore the possible contradiction any further.
6 On the Tuesday morning, he attended a general practitioner, Dr Mariajoseph. (PCB 14, paragraph [21] PCB 44) The doctor issued Mr Saunders with a “Certificate of Capacity” in the form approved by the Transport Accident Commission and Victorian WorkCover Authority. The certificate records, “R supra spinatus tendinopathy/? Sub acromial bursitis.” (Exhibit A) It seems the doctor was certifying Mr Saunders unfit for work, though the very complex certificate form includes a number of blanks and boxes not ticked, so simply on the basis of the document itself, its effect remains unclear.
7 According to an affidavit sworn 22 November 2018, the defendant’s factory manager, Mr Stuart Wingrove, stated that on Tuesday, 9 February 2016, he, “received a phone call from [Mr Saunders] advising that he would not be in that day as he had hurt his shoulder and had been given two weeks off work by his doctor.” (Defendant’s Court Book (“DCB”) 53)
8 Mr Saunders lodged a claim form under the WorkCover Scheme. It bears a “Received” stamp, presumably applied in the office of the relevant WorkCover insurer of 23 February 2013. According to the employer’s lodgement details, Jardan first received the completed claim form on 23 February 2016. (DCB 2) According to Mr Saunders’ section of the form, he posted the claim to Jardan on 18 February 2016. (ibid) The injury described was, “Injury to right shoulder” and the box headed “What happened and how were you injured?” included the words, “Lifting furniture”. In the box headed, “If you did not report the injury/condition, or there was a delay, please explain why.” Mr Saunders wrote, “The injury happen [sic] over a period of time.” (DCB 1) Mr Sutherland, Jardan’s operations manager, completed the document styled “Employer Injury Claim Report” for the WorkCover insurer. In answer to the question, “Do you agree that the details provided in sections 2 and 4 of the worker’s injury claim form are correct?” Mr Sutherland ticked the “Yes” box. In answer to the question, “Do you accept that your worker has an injury/condition which is work-related and occurred in your employment?” Mr Sutherland ticked the box “No”. According to Mr Sutherland, the injury/condition involved was “Right shoulder”. In answer to the question, “What happened and how was the worker injured?”, his response was, “No specific injury”. In answer to the query as to witnesses, he said, “No witnesses.” (DCB 3-4)
9 In a report by way of letter dated 22 January 2019 addressed to Mr Saunders’ solicitors, Dr Mariajoseph said:
“Mr Saunders saw me in Grantville on 09/02/2016 with ongoing R shoulder pains and restricted movements of the R shoulder over the preceding few months …” (PCB 44)
10 The doctor referred Mr Saunders for x‑ray and ultrasound examinations. (PCB 14, paragraph [21]) The ultrasound carried out 10 February 2016 found inter alia:
“9 mm full thickness tear and subscapularis tear of the superior insertion. Diffusely heterogeneous supraspinatus consistent with tendinopathy. 9 x 3 x 7 ml articular surface partial tear at the mid insertion.
Infraspinatus diffusely thickened and heterogeneous consistent with tendinopathy.” (PCB 27)
11 There were also findings of:
“Degenerative AC joint with capsular bulge.
Abduction limited to 100 degrees. No bursal bunching.” (ibid)
12 Mr Saunders also received treatment from physiotherapist, Ms Casey Cleeland, receiving massage and instruction as to exercises to be done at home. He was also referred to sports and exercises physician, Dr Peter Baquie. In 2016 he received a cortisone injection which failed to alleviate his pain. A further two cortisone injections, the latter being administered by orthopaedic surgeon, Mr Rohan Price, failed to achieve significant reduction in pain. (PCB 14-15, paragraph [23])
13 Mr Saunders says he continues to do the exercises assigned to him by the physiotherapist. (ibid, paragraph [15])
14 Mr Saunders says he takes Voltaren and Mobic tablets. He was provided with Lyrica tablets at one stage but suffered “awful side effects” and dispensed with their use. Mr Saunders had commenced hydrotherapy just prior to the trial. (T80, L7-10) Recently he has been self-managing his condition, still taking Mobic. As at the trial, he had not had one for six weeks. (ibid, L16-22) Rather than Voltaren tablets, he now uses Voltaren Emulgel. (ibid, L24-30) Mr Saunders takes Panadol Osteo, which is not a prescription medication, as needed whenever he suffers pain. (T81, L15-18) Mr Saunders said he suffers attacks of pain on a weekly basis and takes two Panadol Osteo on those occasions. (ibid, L19-24]
15 Mr Saunders has not worked since February 2016, now having retired. (ibid L25-28) His wife’s illness and death were also factors in his decision to retire. (T81, L29 – T82, L2)
16 Mr Saunders says that following his injury, he has had to forego a range of recreational pursuits which were previously vital factors in his life. He has had to give up gardening with a shovel, being now “limited to using a little trowel on a raised garden bed.” (PCB 15, paragraph [28]) He can accomplish lawn mowing now only with the help of an electric ride-on mower. (PCB 16, paragraph [29]) He has also had to give up a cherished hobby of beach fishing, which he said, “is just too heavy for me and it is impossible for me to cast a line without aggravating my injury further and the pain that it causes me.” (ibid, paragraph [30]) He says he is prevented now from playing cricket either with the local team or with his grandchildren. The injury to his shoulder prevents him batting or bowling. (ibid, paragraph [31]) Likewise, he has had to give up swimming. (ibid, paragraph [32].
17 He says he is restricted in carrying out household chores; for instance, he can wash his house windows now only with an extension pole and a mop.
18 Mr Saunders complains that he needs to stretch his right arm even when he is sitting down at rest. His sleep is disturbed perhaps four times a night by pain caused when he turns over and lies on his right shoulder. (PCB 17, paragraphs [35]-[36]) Again, he says, he is precluded from playing golf, “A round of golf is out of the question for me.” (ibid, paragraph [37]) He has to rely on other family members for the most part to do vacuum cleaning, being able to operate only a lightweight vacuum machine. (ibid, paragraph [38])
19 Before the accident, Mr Saunders purchased a campervan with a view to touring round Australia. Since the accident, he has been able to undertake long journeys with the campervan including to Western Australia and to Darwin. (T82) He is switching his grocery shopping to an on-line service provided by Woolworths. (T85, L4-8) The problem with steering the car was, he said, “it is just standing there with your hand on the wheel … it sort of wears out. Maintaining the 10 to 2 position driving is therefore painful.” (T84, L11-17)
20 The WorkCover insurer accepted liability for a right shoulder injury to Mr Saunders both as to loss of earnings benefits and impairment benefits. The weekly payments were terminated because of a finding after 12 months that Mr Saunders was then fit for work (viz he had substantially recovered). (DCB 7-9, 12)
21 On 21 August 2018, solicitors acting for Mr Saunders issued an Originating Motion commencing this proceeding. It sought leave for Mr Saunders to issue proceedings at common law on the basis that he has sustained a “serious injury” within the meaning of s325 of the Workplace Injury and Compensation Act 2013. The serious injury was said to have been sustained “as a result of [Mr Saunders’] employment with [Jardan]” for the purposes of the application. Mr Saunders relies only upon a physical injury and paragraph (a) of the definition of “serious injury” in the statute.
Legal considerations
22 It is common ground that Mr Saunders is a “worker” within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). Section 326 of the Act restricts the ability of a worker to bring damages “in respect of an injury arising out of, or in the course of, or due to the nature of, employment”. Section 327 provides that such a damages claim may be brought “if the injury is a serious injury”. Section 335 provides that the worker may not bring proceedings for the recovery of damages in respect of such an injury unless the Victorian WorkCover Authority issues a certificate consenting to the bringing of the proceedings or “a court other than the Magistrates’ Court gives leave to bring the proceedings”.
23 The term “serious injury” is defined in s325 of the Act as follows:
“(a) permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d) loss of a foetus”
24 In this proceeding, Mr Saunders seeks a finding that he has sustained a serious injury arising out of the events during his employment by the defendant. He relies solely on paragraph (a) of the definition.
25 Section 325(2) of the Act makes further provision as to the concepts relative to serious injury inter alia as follows:
“For the purposes of the assessment of serious injury in accordance with section 335(2) and (5)—
…
(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i)pain and suffering; or
(ii)loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
(c) an impairment or loss of a body function or a disfigurement is not to be held to be serious for the purposes of section 335(2) unless—
(i)the pain and suffering consequence; or
(ii)the loss of earning capacity consequence—
is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;
…
(j) the assessment of serious injury must be made at the time that the application is heard by the court, unless sections 348 and 358 apply;”
26 Sections 348 and 358 do not apply to the present proceeding.
27 Mr Saunders seeks damages only for the pain and suffering consequences of his injury and not for pecuniary loss.
Expert opinions
28 Responding to Dr Mariajoseph’s referral of Mr Saunders to him for treatment, sports physician, Dr Peter Baquie, in a letter dated 1 June 2016, reported:
“At examination, Michael has sound range of shoulder motion albeit hand-behind-back is markedly reduced and whilst elevation in abduction and flexion is full, Michael struggles for the shoulder height in elevation in both abduction and flexion. External rotation is of the order of 80 which is similar to the left but again is a struggle.
There is weakness of resisted infraspinatus and supraspinatus. Impingement testing is markedly positive and restricted. I could not elicit an anterior drawer culpable to the left.”
29 Dr Baquie noted that, “Michael still has reasonable range of motion, as the pain has increased it is possible that is evolving to a capsulitis.” He noted significant night pain. Dr Baquie suggested a referral to Mr Rohan Price for a consideration of surgery. (PCB 30-31)
30 Mr Price reported to Dr Baquie upon an examination of Mr Saunders made on 7 July 2016 in a letter of that date. He recorded:
“He had 60o of external rotation and his infraspinatus power was intact. He has reduced internal rotation to his buttock but his subscapularis power was reasonably good as well. He had full active elevation but a positive impingement sign and pain when testing his supraspinatus in isolation. His x‑rays were unremarkable. An ultrasound performed earlier this year suggests that he has a small thickness tear of subscapularis and tendinopathy of his supraspinatus.” (PCB 32)
31 On 6 March 2018, Mr Saunders was assessed by Dr Graeme Doig at the request of the WorkCover insurer. The doctor provided a report by way of letter dated 15 March 2018. Dr Doig diagnosed:
“… a soft tissue injury to the dominant, right shoulder with rotator cuff tendinopathy on a background of a pre-existing arthritic acromioclavicular joint. Mr Saunders continues to suffer pain and restrictions as a result.” (PCB 36)
32 The doctor described his clinical examination as follows:
“[Mr Saunders] had no restrictions in his cervical spine. He remained tender over his anterolateral rotator cuff at the right shoulder with restricted active range of motion arcs, … There was no focal neurological deficit of the upper limb.” (ibid)
33 Dr Doig assessed ranges of motion in Mr Saunders’ right arm as follows:
·“170 degrees of flexion to 30 degrees of extension, …
·170 degrees of abduction to 20 degrees of adduction …
·80 degrees of external to 40 degrees of internal rotation …”
(PCB 37)
34 The doctor said:
“The prognosis must be guarded. Mr Saunders will have a 5 kg lifting, pushing, pulling restriction at or below waist-height with the dominant, right arm. He should not be lifting weights overhead or repetitively using the arm overhead. He requires breaks from long distance driving.” (ibid)
35 On 19 October 2018, Mr Saunders at the request of his solicitors attended the rooms of Mr Kenneth Brearley, surgeon, for medico-legal assessment. Mr Brearley diagnosed:
“Injury to the rotator cuff of the right shoulder with resultant marked limitation of shoulder movements. He has been treated conservatively and there has been little, if any improvement in the range of motion of his shoulder joint since ceasing work.” (PCB 42)
36 According to Mr Brearley, the prognosis was “not good”. (ibid) Mr Brearley said that there were underlying age-related changes to the shoulder. Mr Saunders’ shoulder condition had degenerated and he would continue to require treatment for pain relief. (PCB 43)
37 Dr Mariajoseph provided a report to Mr Saunders’ solicitors by letter of 22 January 2019. He reported on the initial attendance by Mr Saunders in February 2016 and the various treatment modalities which he had undertaken. Dr Mariajoseph concluded:
“… I do not see any further improvement from hereon. This has had an immense impact on his ability to function normally and [he] has been feeling depressed. I have not been made aware of any pre existing R shoulder injuries.” (PCB 44)
38 On 11 April 2019, at the request of his solicitors and for medico-legal purposes, Mr Saunders was assessed by Associate Professor Bruce Love. The professor recorded Mr Saunders as having told him:
“He states that the symptoms that were present whilst at work had diminished to some degree since retirement.” (PCB 47)
39 The professor took a history of right shoulder pain going back to 2002 (that is, early in Mr Saunders’ period of employment with Jardan). (ibid) The professor said Mr Saunders told him that there was a worsening of right shoulder symptoms in 2005 and attempts to have his work practices modified were only partially successful. (PCB 48) The professor noted Mr Saunders having consulted orthopaedic surgeon, Mr Rohan Price, but to have elected to continue with conservative treatment. (ibid) Professor Love diagnosed:
“… rotator cuff tendinitis of moderately severe degree in the right shoulder.” (PCB 49)
40 The professor noted:
“Mr Saunders’ condition is unlikely to change to any significant degree in the foreseeable future. … Natural resolution of the condition is unlikely to occur in the foreseeable future.”
41 The professor considered surgery might provide the possibility of significant improvement but there is no “absolute certainty of a favourable outcome.” (PCB 51)
42 The WorkCover insurer had Mr Saunders assessed by consultant occupational physician, Dr David Barton, on 8 April 2016. Dr Barton provided a report to the insurer dated 12 April 2016 referring to the incident described by Mr Saunders as having occurred with the heavy oak table in February 2016. The doctor said:
“It would be reasonable to conclude that the episode described by the worker may have led to a soft tissue injury in the shoulder area, however one that would normally be expected to settle with time and treatment. I believe it is medically naïve to now suggest that he has a number of radiological abnormalities that prevent him from returning to work. It is important to note that these abnormalities would have been present when he was working full time without any apparent difficulties.” DCB 56)
43 Dr Barton believed Mr Saunders could return to his normal work following “A brief period of lighter duties and graduation in hours may be appropriate.” (DCB 57) As to matters which might deter recovery to a condition where Mr Saunders would be fit to return to work, Dr Barton said:
“Poor medical advice, motivational factors and the distance he lives from the workplace may be playing a part.” (DCB 58)
44 In a letter dated 2 May 2016, Dr Barton approved a return to work program for Mr Saunders. (DCB 60)
45 The insurer also had Mr Saunders assessed by Dr Michael Lucas, occupational physician, on 15 February 2017, that is on the near anniversary of his last day at work. The doctor reported in a letter of the same date. Dr Lucas described Mr Saunders reported symptoms at that time as follows:
“Mr Saunders continues to be troubled by right shoulder discomfort, estimated in the order of 5/10, most noted when, at rest. He describes his discomfort as aching in nature. He considers he has most of his range of motion. He Indicates there has been no significant symptom change over the last month.
Overall, Mr Saunders considers he has had only minimal symptom improvement, estimated as 10%, since the time of maximal symptom awareness.” (DCB 62)
46 On examination the doctor found:
“Mild/moderate restriction in right lateral rotation and right flexion considered present with associated discomfort. [This refers to the neck.]
47 As to the right arm, the doctor found:
“Full range of motion although discomfort Indicated with elevation of the upper limb.
Power considered 4+ to 5/5.
Impingement symptoms were considered negative.
No neurological symptoms or signs.”
48 The doctor referred to the findings on ultrasound, x‑ray and MRI scan leading to the following findings:
“1. Marked AC joint arthrosis
2. Tendinosis of the supraspinatus and infraspinatus tendons
3. Chronic appearing undisplaced labral tears
4. Chronic appearing longitudinal biceps tendon delamination.” (DCB 63)
49 According to Dr Lucas, Mr Saunders’ injury was a temporary aggravation of an underlying condition. He said:
“Mr Saunders remains troubled by discomfort, however, for which indications of a significant injury outcome appear limited.” (DCB 64)
50 Dr Lucas believed, as at a year after the reported incident, that Mr Saunders could:
“… reasonably return to his pre‑injury hours and duties maintaining appropriate cervical spine tear awareness and manual handling limitation awareness.” (DCB 65)
51 The doctor observed that Mr Saunders:
“… has not materially benefited from maintaining a 12-month workplace absence and in my opinion an immediate return to work undertaking usual duties is justified.” (ibid)
52 The WorkCover insurer also had Mr Saunders assessed by orthopaedic surgeon, Mr Michael J Dooley, on 20 November 2018. Mr Dooley, in his report to the insurer dated 6 December 2018, noted on examination of the right shoulder:
“Active abduction and forward flexion are to one hundred degrees. External rotation is to fifty degrees and internal rotation is to twenty degrees. Adduction and extension are to ten degrees.
Mr Saunders notes pain in the shoulder at abduction and forward flexion of around ninety degrees.
When attempting to assess the passive range of motion of the right shoulder, Mr Saunders resists movement at forty degrees of abduction and forward flexion.” (DCB 82)
53 Mr Dooley said, based on the history that he had received, Mr Saunders:
“… sustained a soft tissue injury to his shoulder that has involved some aggravation of underlying degenerative rotator cuff disease.” (DCB 83)
54 Mr Dooley continued:
“Accepting the soft tissue injury sustained as outlined above, it would be my view that the constancy and intensity of Mr Saunders’ ongoing pain and his described disability are greater than one would expect to see for his organic condition. Patients with symptomatic degenerative rotator cuff disease do describe noting intermittent shoulder girdle pain that can be made worse by a lot of activity at and above shoulder level, by heavy lifting, by prolonged reaching etc. They would have difficulty using a shovel or starting a pull start lawn mower. They would have difficulty casting a fishing rod, bowling at cricket and swimming normal strokes regularly. They are able to engage in a wide range of activities. When degenerative rotator cuff disease becomes symptomatic, whether spontaneously as part of the natural evolution of the degenerative condition or after strains, aggravations etc, a patient initially can note significant pain. The natural history is improvement with time. In ordinary clinical practice, the large majority of patients improve with conservative treatment. If they do have persistent symptoms that can be reasonably related to the degenerative condition, then the majority of these patients respond favourably to arthroscopic subacromial decompression surgery. It is invariably in the setting of compensable injury that one sees recalcitrant symptoms.” (ibid)
55 In answer to the question, “Did you note any signs of functional overlay, abnormal illness behaviour or conscious or unconscious exaggeration on examination?” Mr Dooley said:
“There were inconsistent signs on clinical examination in relation to passive range of motion of the shoulder.” (DCB 85)
The incident on 5 February 2016
56 Mr Saunders’ primary case was that he was injured in an incident occurring on 5 February 2016 as described above. The defendant contends that no such incident in fact occurred.
57 In support of its contention, the defendant relied on a number of affidavits. The first sworn 22 November 2018, (DCB 22-23) was by Robert Barnes, a leading hand employed by Jardan. Mr Barnes said that he was Mr Saunders’ supervisor on 5 February 2016 and was at work on that day. (DCB 22 paragraph [2]) According to Mr Barnes, Mr Saunders did not fill out any incident report relative to his alleged injury on that day. (ibid, paragraph [4]) Next was an affidavit sworn 30 November 2018 by Mr Maric, who was a truck driver employed by Jardan. He said he believed that he was driving the truck on 5 February 2016 (there has been no suggestion by Mr Saunders to the contrary). (DCB 24 paragraph [3]) Mr Maric said that if an incident such as the one described by Mr Saunders had occurred, he “would have witnessed any such injury”. In fact, he said, he had no recollection of it. (DCB 25 paragraph [6]) Mr Maric maintained that evidence under cross-examination, saying the alleged incident simply did not happen. (T109, L12-13) He denied that his lack of recollection could be regarded as merely a statement of inability to remember one way or another. (T112, L23-30) Mr Maric was cross-examined to the effect that he could not say he had a clear recollection of what had occurred on 5 February 2016 or indeed any other working day during his employment with Jardan around about that time. Nevertheless, he said that the particular incident described by Mr Saunders did not occur. (T106, L11-21)
58 Unsurprisingly, Mr Saunders was pressed on these matters in cross-examination. He told defendant’s counsel, Ms Manova, that he was struck on the right shoulder by the “lip” of the table top. The table was said to weigh “probably 80 kilos”, American oak being very heavy. He disagreed with the suggestion that the table had fallen 750 millimetres. He demonstrated a fall of 35 centimetres or 350 millimetres. (T48 – 49) He conceded that despite his experience as an occupational health and safety officer, he failed to file any incident report relative to this matter, despite knowing the importance of filing such report. He conceded having filed such reports in the past; for instance, one appearing at DCB 37. This report, as he conceded, was of a near miss and not an actual incident or accident. He noted the definition on the form which said, “An incident includes an event that has the potential or has impacted the health and safety of employees.” These matters had been taught to him as an occupational health and safety officer. He conceded that he could give no explanation as to why he had filed no incident report either on 5th or the following Monday, 8 February. (T49 – 51)
59 The claim form which is quoted above makes no reference to an incident with the table dropping or slipping. The history taken by Dr Mariajoseph describing a complaint on 9 February of “ongoing R shoulder pains and restricted movements of the R shoulder over the preceding few months … “ gives no hint that the right shoulder condition is referrable to a particular incident on 5 February or any other day. Mr Saunders gave a history of the event on 5 February to the various medico-legal examiners, the first such account being described by Dr David Barton in his report dated 12 April 2016 relative to a consultation with Mr Saunders on 8 April 2016. (DCB 54) On his claim form completed in February 2016 and signed by him on 17 February 2016, in answer to the question: “When did you first notice the injury/condition?” Mr Saunders inserted the date 30/12/15, a date which was during the Christmas/New Year shut down of Jardan’s operation. In his second affidavit sworn 17 January this year, Mr Saunders said: “… this was an error on my part, I was supposed to put the 5th February 2016.” (PCB 20 paragraph [4]) In the same affidavit, Mr Saunders conceded, despite what he had said in his earlier affidavit of 11 May 2018 that he was driven home following the 5 February incident, he said that he could “now recall driving myself home.” (ibid, paragraph [5]). This concession was made following the filing and service of an affidavit by Mr David Sutherland, 30 November 2018, in which he exhibited as DS-6 copies of still image from CCTV footage of 5 February showing Mr Saunders walking out of the defendant’s premises alone. (DCB 26-27 paragraph [11], [41])
60 In cross-examination Mr Saunders made a further correction to this part of his narrative of 5 February, stating that whilst he was in pain when he left work on that day, to describe it as throbbing pain was an overstatement. (T75, L1-7)
61 In his third affidavit sworn as recently as 15 May 2019, that is, only 48 hours prior to his being cross-examined, he referred to development of throbbing pain “over the hour or so after the incident”. (PCB 54, paragraph [10])
62 The account of the incident given in the first two affidavits would have led one to suppose that the incident took place at Mr Saunders’ normal workplace, being Jardan’s factory in Mount Waverley. In his third affidavit, he said that the incident in fact occurred at a Wilson’s storage facility which had been leased by Jardan shortly prior to the incident. This clarification came after the round of defendant’s affidavits which exhibited as Exhibit DS-5 to Mr Sutherland’s affidavit a list of items which were part of the normal delivery operations carried out by Mr Maric on 5 February, which did not include the heavy oak table described by Mr Saunders. Ultimately, Mr Saunders’ account had it that the oak table was transferred from Jardan’s Mount Waverley premises to the Wilson storage facility nearby, such that it would not appear on the document exhibited as DS-5.
63 In the result, therefore, Mr Saunders’ account of the 5 February incident has been somewhat inconsistent. In Mr Saunders’ second affidavit, (PCB 19, paragraph [2]) he described:
“All the spare furniture from the Clayton factory was transferred to the storage facility. The final day of the working year for the upholsterers was spent transferring furniture to the Storage facility.”
64 5 February was not the last day of the year. Mr Saunders’ explanation for this came in paragraph 7 of his third affidavit where he said that at the time of swearing the second affidavit he was:
“… suffering from sleeplessness, stress and difficulty concentrating in the context of my wife’s terminal illness. Paragraph 2 of my second affidavit contains incorrect assertions.” (PCB 53, paragraph [7])
65 All of the contemporary evidence, including the manner in which Mr Saunders completed his claim form and the history which he gave on his initial consultation with Dr Mariajoseph plus Mr Maric’s denial support the view that there was no “incident” in February 2016, whether as described or at all. These matters are all consistent with Mr Saunders’ shoulder problem having developed over a period of months or perhaps years in light of the history which he gave to Professor Love.
66 I am not satisfied on the balance of probabilities that the incident described as having occurred on 5 February 2016 in fact occurred.
October 2015
67 Ms Manova, on behalf of the defendant, contended that the genesis of Mr Saunders’ injury was to be found in an incident which apparently occurred in October 2015 and that it was not employment-related. She referred to an extract from the surgical records of the Cowes Medical Clinic recording an attendance by Mr Saunders upon Dr Jeffrey Lindenmayer at which, according to the record, Mr Saunders complained of”
“1. viral pharyngitis O – conservative
2. painful arc R shoulder after fall
- NSAIDs return for steroid shot prn” (DCB 87)
[The parties were agreed that the abbreviation “prn” means if needed or if required.]
68 The following were referred to in the record as “actions”:
“Medication prescribed Meloxican 15mg Tablet 1 Daily with meals prn
Prescription printed: Meloxican 15mg Tablet (Meloxican) 1 daily with meals prn.
Mobic 7.5mg Capsule ceased.
Brufen 400mg Tablet ceased.
Panadol Osteo 665mg Table ceased.
Letter printed.
Letter written re. Cowes Medical Certificate.” (DCB 87)
69 The medical certificate was on the letterhead of the Medical Centre and addressed “To Whom It May Concern”. It stated:
“I have today examined [Mr Michael Peter Saunders] and in my opinion, he is unfit to attend his
from: 29/10/2015 to: 30/10/2015 inclusive
Signed
Dr Jeffrey Lindenmayer” (DCB 87A)
70 There is nothing in the medical record or the certificate to suggest that this matter was work-related. It stands in contradistinction to the form of certificate on WorkCover stationery granted to Mr Saunders by Dr Mariajoseph in February the following year. Responding to this material in his third affidavit, Mr Saunders said:
“I have no recollection [of] that consultation or of suffering a right shoulder injury as a result of a fall.” (PCB 52, paragraph [3])
71 Significantly, Mr Saunders does not deny the correctness of what was recorded. He merely asserts a lack of recollection of it. Given that Mr Saunders’ recollection has been found fallible on a number of other matters around that time, I do not regard the passage referred to in his affidavit at PCB 52, already quoted, as constituting a denial. I proceed on the basis that the events evidenced in these documents occurred as recorded; viz that at some time shortly before 29 October 2015, Mr Saunders suffered a non-work-related injury to his right shoulder which required medical treatment. By way of explanation, Meloxican, the parties are agreed is another name for the drug which Mr Saunders described in his evidence as Mobic.
Conclusion
72 For reasons already explained, I reject the primary case advanced on behalf of Mr Saunders that he suffered a “serious injury” as defined as a result of an incident during the course of employment on 5 February 2016. I now turn to his secondary or “fall back” case that he suffered such an injury as a result of his course of employment with Jardan. I heard extensive submissions as to the propriety or legal ability to “aggregate” the consequences of an injury occurring gradually over a period of years as a result of Mr Saunders’ course of employment and the consequences of a distinct incident occurring on 5 February 2016. I was referred to the judgment of the Court of Appeal in Lu v Mediterranean Shoes Pty Ltd (2001) 1 VR 511; Salita v Eastern Health [2018] VCC 1125; and an unreported decision of Judge Wischusen of this Court, Johnson v Roads Corporation (10 April 2017). Mr Smith and Ms Clark submitted it was proper to aggregate, whilst Ms Manova, on behalf of the defendant, submitted that it was not. Given the findings that I have made relative to the alleged incident on 5 February, these matters need not be explored.
73 Ms Manova, on behalf of the defendant, submitted that no finding of a serious injury arising out of Mr Saunders’ course of employment with Jardan ought be made. She said there were five points “against” any favourable conclusion for Mr Saunders as to these matters:
(1)the absence of any complaint of right shoulder symptoms to his employer during the course of his employment;
(2)the failure to complete any incident or injury report documenting his alleged work-related right shoulder symptoms during his employment;
(3)the failure to request any alternative or light duties to accommodate the alleged work-related right shoulder symptoms;
(4)the failure to seek medical treatment for any right shoulder symptoms during the course of his employment; and
(5)the paucity of medical evidence supporting a conclusion of injury suffered throughout the course of employment.
74 As to the first matter, she noted an admission by Mr Saunders that aside from his taking time off from and after 9 February 2016, he did not complain to Jardan about right shoulder symptoms during his employment. (T78, L12 – T79, L1) She said that the clinical records from the Cowes Medical Clinic, (Exhibit B) show that from 12 February 2011 to 9 February 2016, he frequently attended that practice for unrelated complaints, making no reference to shoulder symptoms. (T39, L4 11) She said that Mr Saunders admitted that if he had shoulder problems, there was nothing that could or would have stopped him mentioning them to his doctor at the clinic. She said that there was no evidence of time off for shoulder pain before 9 February and no request for light duties before that time. She said that aside from Dr Mariajoseph, all other practitioners who reported, took a history of symptoms following an incident in February 2016 not developing over time. She said that Dr Baquie took a history that before February 2016:
“Whilst he had some niggles in the upper limb, he has had no true and significant shoulder disability.” (PCB 30)
75 Again, Dr Baquie took a history of a slipping table in February 2016. Treating orthopaedic surgeon, Mr Price, dated the right shoulder pain as “since February of this year”; viz 2016. (PCB 32)
76 She said Mr Kenneth Brearley took a history of:
“… some frequent dull aching pain in the right shoulder, however on 5th February 2016 he suffered a specific injury to the right shoulder …” (PCB 39)
77 She noted that Mr Brearley did not distinguish between the consequences of Mr Saunders’ employment and the particular alleged incident. Mr Graeme Doig, she said, took a history of the February 2016 incident, noting that Mr Saunders:
“… denied any previous injury to the shoulder, although he did suffer from niggling discomfort in the past.” (PCB 34)
78 He made a finding that the clinical presentation was consistent with a workplace accident. (PCB 37)
79 Accordingly, said Ms Manova, if I were to conclude that the 5 February incident did not occur:
“The medical opinions founded upon the acceptance of such an incident must be set aside.”
80 As to Dr Mariajoseph, Ms Manova submitted that the history which he took and the findings which he made should be interpreted as tracing the shoulder injury to the apparently non-work-related event in October 2015.
81 Ms Manova conceded that Professor Love expressed opinions which were consistent with a finding of serious injury arising out of a course of employment. She said, however, that “the factual assumptions underlying [Professor Love’s report] are not supported by the evidence, including the affidavits of the plaintiff.” Professor Love was not told of the fall and injury in October 2015. Professor Love’s history of shoulder pain going back to 2002 was inconsistent with Mr Saunders’ claim form which stated the injury was first noticed on 30 December 2015. Ms Manova said that there was no evidence of Jardan’s modifying Mr Saunders’ work practices in 2005 or 2007 and he admitted that he had never told his employer that he had a right shoulder problem. (T78, L12 – T79, L1)
82 Ms Manova noted the comment by Professor Love that the 5 February incident aggravated the underlying condition. She said that the plaintiff’s evidence did not describe a progression of a right shoulder condition over 14 years resulting in dysfunction of the right shoulder prior to 5 February 2016:
“At its highest, the plaintiff’s case is that he had ‘dull aches’ in the shoulder in the years leading up to the accident.”
83 Further, she said, that Mr Saunders did not describe a constant disabling pain productive of serious injury consequences. She described Mr Saunders’ symptoms as “mild to moderate” which would not meet the statutory threshold. Further, she said, Mr Saunders had conceded in cross-examination that since his retirement the symptoms were not as bad as whilst he was working. (T79, L2-15) The fact that Mr Saunders was self-managing his injury also pointed away from its being “serious” in the relevant sense. No doctors, she said, had recommended arthroscopathy, hydrodilatation or rotator cuff repair. The most serious treatment undertaken was a cortisone injection following the non-work-related fall in October 2015. Mr Saunders is not having any specialist medical treatment for the shoulder or any physiotherapy, massage or similar treatment, nor is he undergoing a pain management program. He has never consulted a pain specialist for treatment of chronic pain and takes very limited medication. She noted Mr Saunders’ commencement of hydrotherapy but noted his admission that he has not seen his general practitioner since 9 October 2018. (T86, L9-27)
84 As to the effects on Mr Saunders’ lifestyle and recreational activities, she said they were significant but fell short of the statutory requirement that they be at least very considerable. She said Mr Saunders was 68 when he went off work [67 according to my calculation]. She said there were reasons other than his shoulder condition which caused him to retire at this time. (T82, L25 – T83, L1) She said he remained active in retirement. (PCB 15, paragraph [27]) He was able to undertake long distance drives in his campervan with his late wife, albeit sharing driving duties with her. She said whilst he required help with heavier household duties, he retained the ability to do lighter housework including vacuuming and continued to drive his car despite restrictions.
85 Ms Manova conceded that Mr Saunders no longer goes fishing or plays golf, “these were occasional hobbies rather than competitive sports for the plaintiff.”
86 Mr Smith submitted I ought not to be satisfied as to the occurrence of the alleged incident in February 2015.
“It leaves Your Honour with this proposition, the current state of the plaintiff’s shoulder is referrable we would submit … to the employment, the course of employment.” (T194, L1-4)
87 Mr Smith noted that Mr Sutherland’s affidavit and viva voce evidence indicated he received Mr Saunders’ WorkCover claim on the basis that:
“… his work as an upholsterer had caused him to have a right shoulder injury which required him to have time off work, and he regarded that as plausible.” (T194, L23-25; T136, L15-17; T137, L2-5 [evidence of Mr Sutherland in cross-examination])
88 As to the certificate from Dr Lindenmayer in October 2015, Mr Smith noted that whilst Mr Saunders appears to have been certified unfit for work, there were two presenting conditions and it is not clear whether his unfitness derived from the shoulder condition or the pharyngitis or both. Mr Smith says that this October 2015 visit was never followed up. There was no return for a possible steroid injection. He submitted, therefore, that no great significance should be ascribed to it. (T195) Mr Smith was also critical of the defendant’s failure to obtain comment from its medico-legal experts on the significance of the October 2015 clinical note or to seek a report from the practitioner involved. (T101, L20-27)
89 Mr Smith rejected any suggestion that Mr Saunders’ evidence did not bear out the work history given to Professor Love dating back to 2002. In particular, he said that Mr Saunders described his complaints about the strenuous nature of the “all in one” process adopted by the defendant and had it modified to a “three in one style of operation”. (T202, L4-18) Mr Smith said that the history given to Dr Mariajoseph was “strongly corroborative of what is in the claim form.” (T204, L9-11) He said:
“It was plausible that the employment as an upholsterer could rise to such symptoms, or such problems, and the acceptance of the claim and the manner in which the claim was subsequently treated.” (ibid, L14-18)
90 Therefore, he said:
“… employment has been a significant contributing factor.” (ibid, L21)
91 I accept Mr Smith’s contention that it is plausible to conclude that Mr Saunders’ work as an upholsterer for Jardan over the period 2000 to 2016 is a major causal factor for his right shoulder injury. Speaking of the history which he had given to Professor Love, Mr Saunders said:
“… what I tried to do was to change some of the work practices to make this easier on people working there [at Jardan] ...” (T78, L16-18)
92 He continued:
“… because some of the jobs we were doing they were very very difficult, putting the cover on.” (ibid, L20-21)
93 In re-examination, asked to describe the processes which he sought to have changed, he said:
“Well, if you take a chair like this, okay, when you put the cover on it was all sewn up, we had to pull it on and sometimes it is really tight to put on. So you have to your knee on the job and pull it down, so it was a lot of stresses and strains on your shoulders and arms doing the work. We suggested that around to make it like – doing the upholstery of the arm, doing it separate, but they are the manufacturers and they said, ‘No, we actually sell it as it is.’” (T94, L27 – T95, L5)
94 He did, however, manage to have part of the process changed, saying:
“One of the jobs we done they actually changed it and made it into like three pieces instead of one, those what we was looking at to make it easier to do. [This made] the job a third of the time easier.” (T95, L11‑16)
95 I accept Mr Smith’s submission that in the circumstances Mr Saunders’ attendance at the Cowes Medical Clinic in October 2015 can be seen as an isolated incident, an aggravation of his right shoulder condition, the effects of which were quickly spent. This view is supported by Mr Saunders’ failure to return for the suggested steroid injection. Further, the doctor certified Mr Saunders unfit for work for two days only. As to the progressive development of the injury, such a process is reflected not only in the more extensive history of pain going back to 2002 taken by Professor Love, but also in the history of the period prior to February 2015, of “dull aches” and niggling pains taken by Dr Baquie, Mr Kenneth Brearley and Mr Doig. It is also consistent with the history taken by Dr Mariajoseph.
96 In my view, Mr Saunders suffered a right shoulder injury in the course of his employment.
97 The next question is whether in the circumstances this injury should be regarded as “serious” in accordance with the statute. Mr Smith’s contention was that Mr Saunders’ entire recreational social life had been constrained just at the time of life where retirement would render this part of his life far more important. One may accept the force of that submission. An alternate view, however, is that Mr Saunders was and is at a time of life when age-related degeneration would constrain his ability to engage in outdoor pursuits in any event and given his relatively advanced years; he is not in the situation of a relatively young person suffering a similar injury with the consequent constraint stretching out over a long life yet to be lived. Mr Saunders does, however, suffer sleep disturbance as a result of his injury – a considerable consequence at any age.
98 Some examiners, such as Dr Barton and Mr Dooley, expressed scepticism as to the genuineness of Mr Saunders’ presentation and whether his non-return to work was compelled by the physical limitations consequent upon his injury or derived rather from psycho-social factors. Nevertheless, there was not a full blooded cross-examination of Mr Saunders suggesting that he was grossly exaggerating his restrictions or malingering. No video surveillance footage was shown, nor any material from social media depicting a more active and joyful life than the one which he disclosed in evidence. Despite my not accepting his account of the circumstances in which he suffered injury, I believe his evidence as to his present physical state is generally reliable and not significantly exaggerated. For the purposes of s325(2)(c) of the Workplace Injury Rehabilitation Compensation Act 2013, I conclude that the pain and suffering consequences of his injury are, when judged by comparison with other cases in the range of possible impairments or losses of the body function, fairly described as being more than significant or marked and being at least very considerable.
99 Leave should be granted.
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