Saunders v Victorian WorkCover Authority
[2019] VCC 1049
•12 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-18-04848
| JOHN PATRICK SAUNDERS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 May 2019 | |
DATE OF JUDGMENT: | 12 July 2019 | |
CASE MAY BE CITED AS: | Saunders v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1049 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – application in respect of pain and suffering damages only – reliance upon paragraph (a) of the definition of serious injury – injury to the right shoulder (dominant arm) – injury alleged to have occurred in specific incident – denial of liability – whether burden of proof satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett QC with Ms S Bailey | Arnold Thomas & Becker |
| For the Defendant | Ms A Magee SC with Ms M Tsikaris | Russell Kennedy |
HIS HONOUR:
General background
1 This matter comes before by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in respect of pain and suffering damages. Counsel on behalf of the plaintiff indicated at the outset that no arguments were going to be offered in relation to economic loss – see Transcript (hereinafter referred to as “T”) 3 and paragraph 2 of the written submissions on behalf of the plaintiff. In bringing his application, the plaintiff relies upon paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act. The injury relied upon is one to the right shoulder. He is right handed. The plaintiff asserts that essentially the injury arose as the result of a single incident on approximately 12 January 2012 or on a date at about that time, when he had been lifting panels used in the construction of a cool room. At the time, the plaintiff was employed by an entity called Ozdairy Foods Pty Ltd (hereinafter referred to as “Ozdairy”). What is alleged to have occurred shall hereinafter be referred to as “the accident”. The occurrence of the accident is denied by the defendant and by Ozdairy, but it seems to me simpler to refer to what is alleged by the plaintiff as being “the accident” rather than by using a more wordy phrase. Indeed, the defendant disputes the proposition that the plaintiff suffered any right shoulder injury at any time in the course of, or due to the nature, his employment with Ozdairy. I might add that there is some reference to subsequent aggravation of the injury when the plaintiff was using a hammer whilst in the course of his employment, but it is upon the accident of 12 January 2012 that the plaintiff places principal reliance.
2 Mr J Brett QC with Ms Bailey of counsel appeared on behalf of the plaintiff. Ms Magee SC with Ms M Tsikaris of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of two affidavits as being true and correct. There was some slight confusion concerning the date of swearing of the earlier affidavit, but this was clarified and nothing hinges upon it. The plaintiff was the only witness to give oral evidence. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
(a) The plaintiff’s background prior to suffering the injury
3 The plaintiff is aged 56 years, he having been born in 1962. He is a divorced man with three adult children. He has a partner, Ms Marina Matos. An affidavit sworn by her was also placed in evidence.
4 The plaintiff was educated to Year 11 level at a technical college. Even before he left school, he had worked in a family business, J & N Saunders. That business dealt with the collection, cleaning and curing of cattle skins and hides, as well as having outlets involving pet food and operating a knackery. The state of the plaintiff’s health prior to his employment with Ozdairy is a matter which received considerable attention during the conduct of the case and his employment with the family business is of some relevance in that regard.
5 During a downturn in the family business, the plaintiff worked for a couple of years as a spray painter, this being from approximately 1979 to 1981. He then returned to work with J & N Saunders and various health and injury concerns, which shall be discussed, occurred thereafter. At one stage he went on a working holiday for some nine months. Whilst it is difficult to be completely certain, it would appear from various documents tendered by the defendant in relation to the plaintiff’s work over the years that he ceased work with J & N Saunders in approximately 2000. He then seems to have worked as a truck driver based in Wodonga, before working as a commercial agent in Sydney. He returned to Melbourne and worked in the transport industry as a yard supervisor, before leaving that job in approximately June 2002. He then appears to have worked for some 12 months as a yard assistant. In 2007, he completed a Certificate IV as a Drug and Alcohol Support Worker and was with the Eastern Region Mental Health Association in that capacity for approximately three years. He then was employed as an outreach worker, but the person whom he looked after died and he apparently had something of a mental breakdown following this. There are other aspects of his history which shall receive attention when the state of his health prior to the accident is being discussed.
6 In any event, the plaintiff commenced employment with Ozdairy on 21 November 2011 as a factory hand and maintenance worker. Ozdairy was involved in the production of packaged dairy products. His duties involved driving a truck for the purpose of transporting bulk goods used in production, unloading containers of machinery components, vermin proofing the premises and engaging in general warehouse duties and vehicle maintenance. It was when he was unloading a shipping container of panels that the accident is alleged to have occurred.
(b) The plaintiff as a witness
7 The credit of a plaintiff is often important, although sometimes not in dispute. I agree with what is contained in the written submissions on behalf of the plaintiff that his credit is an important issue in this case.
8 The plaintiff presented as a somewhat unusual character, with something of a chequered history, but overall I found him to be a straightforward witness who did his best to answer questions accurately. I agree with the submissions of counsel on his behalf that the plaintiff gave frank answers and sometimes answers against interest. Many medical reports were placed in evidence and a particularly large number of such reports were so placed by the defendant. Many of these related to earlier injuries and claims. For the purposes of discussion of the plaintiff’s credit, I shall only refer to a few of the many reports. I note that Dr Peter Stevenson, consultant physician, reported to the plaintiff’s then solicitors on 21 April 1998, and described the plaintiff as a very straightforward historian who attempted to evaluate his symptoms rather than magnify them.
9 A Medical Panel, the members of which examined the plaintiff in October 2012, referred to him as being pleasant and cooperative. Dr Meena Mittal, pain physician and specialist anaesthetist, who examined the plaintiff at the request of his present solicitors, described him as being alert, orientated throughout the examination and answering all questions appropriately. The plaintiff’s treating consultant psychiatrist, Dr Ian Katz, whilst describing the plaintiff as a “complex individual”, clearly has a high opinion of him. In a letter to the plaintiff’s then treating general practitioner, Dr Michael O’Toole, Dr Katz described the plaintiff as a very nice person to deal with. To the plaintiff’s current treating general practitioner, Dr Atef Abdelmalak, Dr Katz described the plaintiff as “a pleasure to look after”. In a letter to Dr Jim Harkness, Dr Katz described the plaintiff as “a delightful longstanding patient of mine”. He used very similar wording in a letter of referral to Dr Malcolm Barnes, gastroenterologist, this being on 4 July 2017. More recently, when the plaintiff was referred back to him by Dr Atef Abdelmalak in February 2018, Dr Katz stated the following:
“Thank you very much for re-referring John who has been a delight to look after and who has done fantastic this last period of time.”
10 Other examiners, such as Dr Michael Bloom occupational physician, who examined the plaintiff at the request of the defendant in December 2014, had more difficulties, noting that the plaintiff had a long and complicated prior history and that it was difficult to elicit details.
11 However, as stated, I accept the plaintiff as an honest witness who attempted to answer questions in a forthright and accurate way.
(c) The state of the plaintiff’s health prior to the accident
12 As stated, the plaintiff has something of a chequered history. He has had various health problems. He was diagnosed with Q fever and had some problems with depression and behavioural disturbance in the following years. As earlier stated, the family business for which he worked dealt with cattle hides, as well as operating a knackery and having outlets relating to pet food. In approximately 1986 he suffered a whiplash injury of the cervical spine and a lower back injury when the load moved on a truck which he was driving. He also had a problem with varicose veins in 1991 and 1992 and suffered a laceration to the right lower leg in June 1996. In 1999, he suffered a back injury at work when a commercial refrigerator fell upon him. This particular accident and injury was of some interest to the present defendant and a considerable amount of medical material relating to it was put in evidence. I shall return to a discussion of it shortly.
13 Subsequently the plaintiff became addicted to heroin. This problem seems to have commenced in approximately 2000 or a little later and continued until approximately 2005. The plaintiff also developed a problem with hepatitis. He no longer has a problem in relation to heroin, although he uses marijuana. This does not seem to be in the nature of a major addiction or to constitute a significant problem.
14 In 2007, the plaintiff completed a Certificate IV as a Drug and Alcohol Support Worker, having studied for this at Swinburne TAFE. He was then employed as a residential care worker for Eastern Regional & Mental Health Association for approximately three years. His work included looking after two particular clients for a period of approximately three months. In early December 2008 one of them was admitted to the Royal Talbot Hospital for assessment on an acquired brain injury and substance abuse. The plaintiff would visit him there. Apparently this person was discharged, but the plaintiff continued to work with him. Immediately prior to Christmas 2008, the plaintiff on two occasions suffered hypoglycaemic episodes, lapsing into comas. He ultimately died. This seems to have resulted in the plaintiff having a breakdown and suffering a psychiatric injury. This was ultimately assessed by a Medical Panel and he was found to have a permanent psychiatric impairment assessed at 5 per cent. The plaintiff received assistance from his psychiatrist, Dr Katz, and describes himself as having had a breakdown. In any event, he commenced employment with Ozdairy on 21 November 2011.
15 I shall return to the low back injury suffered by the plaintiff in 1999. I can see how the consequences of that injury, and indeed the plaintiff’s psychiatric breakdown, may have some relevance to the present case. However, I consider the placing in evidence by the defendant (via its Court Book) of some 38 medical reports relating to the plaintiff’s previous back and psychiatric problems as perhaps a shade excessive. Firstly, it is to be remembered that, in the present case, the plaintiff’s application relates to leave in respect of pain and suffering only. Secondly, whilst issues of disentanglement may well be involved, the plaintiff is relying upon paragraph (a) of the definition for an injury to the right shoulder. When there is added to the 38 medical reports and documents to which I have referred a further seven documents, including an affidavit of the plaintiff sworn almost seven years before the occurrence of the injury now under consideration, it can be seen that the amount of such documentation placed in evidence bordered on the excessive. In fairness, it should be said that Ms McGee, on behalf of the defendant, did say that I might not be taken to all of these documents, but certainly I was taken to quite a number of them and their presence resulted in a very substantial Defendant’s Court Book, which was in excess of 300 pages.
16 Suffice to say, that the plaintiff had made a claim based upon a specific incident of injury on 29 May 1999. As stated, it involved being struck by a refrigerator that was being moved. The plaintiff claimed that both physical and psychiatric injuries resulted. Whilst the Claim Form which he lodged in relation to this (and seems to have lodged many years later) referred to injury to the back, there is also reference to the neck, left shoulder and elbow and a psychiatric injury. His earlier affidavit refers to the injury as being of the head, neck and back. However, a report from Dr Paul Grimwald, who examined the plaintiff at the request of his then solicitors on 19 August 2004, has recorded that the refrigerator unit struck the plaintiff on the top of the head and right shoulder. A report of 28 October 2007 of Dr Michael O’Toole, a general practitioner, refers to the plaintiff having had an accident in May 1999, which accident aggravated his back pain. In cross-examination, the plaintiff stated quite firmly that, in the refrigerator incident, he suffered injury to his previously damaged back and injury to his neck, but stated that the refrigerator made contact with his left shoulder. However, he agreed that he developed referred pain from his neck into both shoulders – see T12. When later cross-examined about which shoulder was struck by the falling refrigerator, he repeated that it was his recollection that it was the left shoulder that was struck – see T42-3. Essentially, he did not dispute the proposition that he had told an examining doctor (Dr Bloom) that he could not recall any specific treatment for his right shoulder, but stated that he underwent medical imaging of it. As stated, there are many more reports, but I have referred to what could be described as a few samples in order to underline that an issue in this case was whether the plaintiff had a previous injury to the right shoulder, or symptoms in it. It is a topic to which I shall return.
(d)The alleged injury to the right shoulder, its treatment and diagnosis
17 Given that the occurrence of injury to the right shoulder is disputed, the immediate question to be determined is whether I am satisfied that any injury occurred at all in the manner described. I am satisfied that the alleged incident did in fact occur and that there was some subsequent aggravation of it. As indicated above, I accept the plaintiff as a witness of truth. There shall be further discussion concerning this subsequently.
18 In his earlier affidavit in this proceeding (there is some confusion concerning the date on which it was sworn, but I accept that it was so sworn on 28 March 2018), the plaintiff has sworn that he suffered injury on 12 January 2012 when unloading a shipping container of panels. By the end of the day, he was aware of neck pain, although in the longer term, it was his right shoulder and arm that gave him the greatest problems. He has sworn that he attended Dr Rachael Abdelmalak at Silverton Medical Clinic, Jacksons Road, Noble Park North in relation to this. Dr Abdelmalak provided a report of 26 July 2015 to the Accident Compensation Conciliation Service. The report is somewhat difficult to read, but indicates that he first attended the Silverton Medical Clinic early in 2012 after the retirement of his usual general practitioner (Dr O’Toole). The history obtained appears to relate to two major industrial accidents in 1986 and 1999. Radiological investigation of the plaintiff’s lumbar spine and pelvis seems to have followed. However, it is to be noted that, on 26 April 2012, a CT scan of the cervical spine was requested and carried out, this demonstrating a mild posterior disc bulge at C3-4, C4-5 and C5-6 touching, but not distinctly deforming the thecal sac. It is to be remembered that it was the plaintiff’s sworn evidence that he initially attended on Dr Abdelmalak in relation to his neck, right shoulder and arm pain.
19 The plaintiff was of the belief that he completed a WorkCover claim at about the time of suffering the injury, but was subsequently advised by Dr Rachael Abdelmalak that Ozdairy had contacted the Silverton Medical Clinic and denied responsibility for the medical account. The plaintiff has sworn that, at a later point in time, liability was accepted for his claim.
20 What would seem to be clear is that the plaintiff ultimately ceased work on approximately 27 April 2012. Further, a report from Dr Atef Abdelmalak of 18 May 2018 sets out a history which repeats some of the matters contained in the earlier report, but on this occasion effectively the first sentence is that the plaintiff attended the clinic in early 2012 with right elbow pain after heavy lifting at work.
21 The clinical notes of the Silverton Medical Clinic were tendered (Exhibit 2). It is noted that on 6 February 2012, it was recorded that the employer (Ozdairy) claimed that it had not received any documentation concerning injury. The history then taken was that the plaintiff stated that the problem began on 12 January 2012, when he was unloading a shipping container and felt right elbow pain. He claimed to have informed his supervisor, going home and returning to work on 17 January. On 25 January he was working with a hammer and aggravated his right elbow pain. He worked on until 31 January, after which he could not continue to work. He claimed to have informed Ozdairy about the injury on 1 February 2012. He could not see his usual doctor due to that person’s retirement and came to the Silverton Medical Clinic on 3 February 2012.
22 The history taken on 3 February 2012 referred to right elbow pain from an injury at work (last week) and also referred to the use of a hammer and the lifting of a heavy fridge. There are then several visits dealing with other matters, including a complaint of back pain radiating to the hip. On 23 April 2012, there is a reference to neck pain radiating to the left arm. I would agree that, whilst there are references to back and neck pain, as well as right elbow pain, the first clear reference in the clinical notes of the Silverton Medical Clinic to right shoulder pain is not until 4 February 2014, and then it appears to be in the context of an assault. Subsequently there is a reference to right shoulder pain on 3 June 2014, along with the comment, “Aggravated pain while doing the rehab”. Of course, there is earlier reference to right elbow pain, including on 6 February 2012 and in the context of events at work.
23 The report of 18 May 2018 from the Silverton Medical Clinic appears to confirm that the first clear reference to right shoulder pain, as opposed to neck or right elbow pain, occurred on 3 June 2014. The report is not very satisfactory on the issue as to a relationship between the right shoulder injury and the plaintiff’s employment. It is simply stated by Dr Abdelmalak that the history from the plaintiff indicates that the right shoulder injury is related to his employment. When that history was obtained, it was not spelled out and, as stated, the entry in the clinical notes for 3 June 2014 refers to right shoulder pain and the fact that such pain was aggravated whilst the plaintiff was doing “rehab”, but, again, that is not a particularly satisfactory history. In any event, the plaintiff was sent for an x‑ray and ultrasound of the right shoulder, this being requested on 3 June 2014 and collected three days later. The conclusion of the radiologist was that there was no significant abnormality on x‑ray of the right shoulder. There was mild calcific tendinosis of the supraspinatus with associated intrasubstance tear and superimposed mild subacromial bursitis. It is apparent from the report of Dr Abdelmalak that, following this, the plaintiff had cortisone injections a “few times, also had physiotherapy with no improvement”. I might add that the clinical notes, which were put in evidence by the defendant, do not extend beyond 19 June 2014.
24 It is apparent that the plaintiff had an ultrasound-guided right shoulder injection, apparently upon referral from Dr Atef Abdelmalak, on 20 June 2014. The injection proceeded without complication. A further ultrasound-guided right shoulder injection was carried out without complication on 15 May 2015, this again being upon referral from Dr Abdelmalak. On 17 May 2016, an x‑ray and ultrasound of the right shoulder were performed. The conclusion of the radiologist was that there was no evidence of an acute rotator cuff tear, but there was a chronic partial-thickness supraspinatus tear and bursitis. On 20 May 2016, there was a further ultrasound-guided injection into the right shoulder, the radiologist noting that the thickened subacromial-subdeltoid bursa was infiltrated with 2 milligrams of Celestone and Marcain.
25 The plaintiff had a right shoulder ultrasound and x‑ray on 15 February 2017. The x‑ray was normal. The ultrasound showed signs consistent with a laminar intrasubstance tear in the anterior aspect of the insertion of the supraspinatus tendon. A partial thickness tear was present, measuring 6 x 5 mm. The subdeltoid bursa appeared slightly thickened. With abduction there appeared to be some painful restriction due to tendon and bursal impingement. These investigations appear to have been carried out upon referral from Dr Jennifer Harmer, a rheumatologist to whom Dr Abdelmalak had referred the plaintiff.
26 On 29 November 2018, the plaintiff apparently underwent an ultrasound-guided steroid injection, which is described to be to the left shoulder, this being upon referral from Dr Atef Abdelmalak. However, I can find no reference to it in his report of 2 May 2019. A subsequent medico-legal report would indicate that the plaintiff suffered some left shoulder pain due to his inability to use his right shoulder.
27 The plaintiff has also been examined for medico-legal purposes. At the request of his solicitors, he was seen by Mr Ash Chehata, shoulder, elbow and wrist surgeon, who reported on 29 January 2018. The description of the accident given by the plaintiff was consistent with his evidence and affidavit, save that Dr Chehata recorded the date of injury as being 3 February 2012. Perhaps there is some confusion as 3 February 2012 was the date upon which the plaintiff was seen by Dr Atef Abdelmalak. In any event, Mr Chehata took a history of the treatment, along with the plaintiff’s medical history. His diagnosis was of small partial thickness rotator cuff tears with secondary calcific tendonitis and with resultant subacromial bursitis. This was consistent with the plaintiff’s description of the manner in which he suffered the injury. Mr Chehata stated that the plaintiff currently had significant impingement, relating to subacromial bursitis. He was currently unable to perform most overhead activities, due to the significant bursitis. Mr Chehata remarked that the plaintiff found all activities of daily living quite painful, particularly referring to dressing and the like. He considered the prognosis to be good, with no likelihood of deterioration. Mr Chehata observed that, in some individuals, recalcitrant bursitis can be improved with a surgical decompression, but this did not offer a guarantee of success for many individuals with chronic symptoms and it may not change the overall presentation. He considered the plaintiff’s right shoulder condition to be stabilised.
28 Mr Chehata reported again on 27 March 2019. It is apparent that he had seen the plaintiff again. He noted that the plaintiff suffered from severe pain, insomnia, and an inability to lie on his right side. This was in addition to weakness and ongoing restriction. There was also reference to a deterioration in the plaintiff’s mental health. The plaintiff had stopped all formal treatment and continued to remain impaired, with an inability to engage in his hobbies. He was able to perform the majority of daily living activities. He could perform gardening, although very slowly, and was unable to hang out the washing. Examination of the plaintiff’s right shoulder revealed ongoing impingement and bursitis. The plaintiff was barely able to perform a painful arc. He described diffuse pain across the right shoulder, with a non-tender AC joint and an irritable long head of biceps. In relation to the rotator cuff muscles, he had weakness in the distribution of the supraspinatus, all consistent with a partial thickness rotator cuff tear, and an irritable long head of the biceps. Mr Chehata also noted that, in December 2018, the plaintiff had had an exacerbation of left shoulder pain due to the inability to utilise his right shoulder in a standard fashion. The plaintiff had required a cortisone injection, with minimal improvement. Mr Chehata commented that the plaintiff’s presentation had remained relatively unchanged, with a partial thickness rotator cuff tear, calcific deposition, as well as recalcitrant bursitis with impingement on the right side. He also referred to the consequential left shoulder problem. He made reference to the aggravation of cervical spondylosis, as well as lumbar spondylosis. Mr Chehata considered that there was a clear relationship between the development of the right shoulder pain and the performance of heavy manual labouring jobs. He also described the aggravation of cervical spondylosis in similar terms. He considered the injury to be stabilised and the prognosis, at best, to be guarded. The partial thickness tear in the right shoulder was likely to be a permanent impairment.
29 Dr Meena Mittal, pain physician and specialist anaesthetist, saw the plaintiff at the request of his solicitors on 22 February 2019. She also obtained a detailed history of the occurrence of the event involving the cool room panels, but recorded this as being on 10 January 2012. She referred to ongoing symptoms due to the heavy nature of the work, until cessation of employment on 25 April 2012. She noted that the plaintiff had attended a pain management program at a clinic in Caulfield. He had had a flare up of right shoulder pain when performing Tai Chi exercises and stopped the program accordingly. This is consistent with what is set out in the plaintiff’s original affidavit and could well be the “rehab” referred to in the clinical notes of Dr Abdelmalak. Dr Mittal also noted that the cortisone injections had provided the plaintiff with very limited benefit. He was complaining of pain in the right shoulder and average pain at rest of 3/10, but, with increasing activity, the pain could escalate to 8/10. The plaintiff was unable to lie on the right shoulder or lift his right upper limb above shoulder height. When there is an exacerbation of pain, it radiates towards the elbow and is associated with pins and needles, weakness, reduced grip strength and the like of the right hand. Dr Mittal noted that the plaintiff had also developed left shoulder pain over the last couple of months. She recorded that the plaintiff gave a history of needing assistance with most activities of daily living due to the ongoing right shoulder pain. He could only lift 1 to 2 kilograms and had difficulties with shopping, mowing the lawn, gardening, household duties and the like. Dr Mittal noted his history of exacerbation of anxiety and depression. Further, she recorded that the plaintiff’s sleep was interrupted due to his pain.
30 The overall impression gained by Dr Mittal was that the plaintiff had chronic right shoulder pain secondary to an injury sustained at work. The cause of his pain was a partial thickness rotator cuff tear of the supraspinatus tendon, with calcific tendonitis and ongoing subdeltoid bursitis. She raised the possibility of surgery, but was unable to comment on whether this was warranted. She also noted the possibility of referral to a pain management specialist, along with targeted physiotherapy and hydrotherapy. She expressed the opinion that the injury was directly related to what had occurred at Ozdairy. Dr Mittal considered the prognosis to be poor. She did not anticipate the plaintiff having complete resolution of his chronic pain at any time in the near or distant future. He still required active treatment in an attempt to reduce the intensity of his pain. Overall, Dr Mittal considered that the right shoulder injury appeared to have stabilised and she did not believe that there was a likelihood of further deterioration.
31 The defendant placed a multitude of medical reports in evidence. Many of these concerned the state of the plaintiff’s health prior to the accident. I shall give only a brief summary of many of these.
32 Some ten of these reports predate the 1999 accident. As earlier stated, it is apparent that the plaintiff had low back pain radiating to the right buttock and right lateral hip in the period 1986 – 1990. He also had a problem with varicose veins in 1991 and 1992. He suffered a laceration to the right lower leg in June 1996. He also had some problems with depression and behavioural disturbance in the years after he was diagnosed with Q fever, as well as suffering some anxiety at this time. He also sustained a quite substantial laceration when operating a self-propelled slashing mower in the course of his then employment, this occurring in June 1996.
33 We then come to medical material relating to the workplace accident when he was struck by a refrigerator unit in 1999. At the request of his then solicitors, the plaintiff was examined by Mr Peter Mangos, general surgeon, on 19 January 2005. He was also being examined in relation to a crush injury to the left thumb. In any event, Mr Mangos considered that the plaintiff had a chronic back injury due to disc damage. His attention seems to have been substantially directed towards an assessment of permanent disability in accordance with the AMA Guides. Mr Mangos also suggested that there should be restrictions operating in relation to the performance of heavy physical work.
34 There are a number of reports from Dr Michael O’Toole of Dandenong, who, as stated, was the plaintiff’s general practitioner for quite some time. Other than demonstrating that the plaintiff had persistent back pain for a number of years and suffered from depression from time to time, these reports do not take matters much further. Some of them may have been of greater significance if the plaintiff was also seeking leave in respect of loss of earning capacity. They may be of some marginal relevance in relation to longstanding diagnoses of depression and the like. By January 2010, Dr O’Toole was stating that the plaintiff suffered from intractable back pain due to an old industrial injury, this being in addition to problems with depression and the like, and thought it would be difficult for the plaintiff to return to work in the foreseeable future. When he saw the plaintiff on 11 March 2010, the plaintiff was continuing to complain of persistent low back pain. Dr O’Toole thought that there was no curative treatment for the chronic back pain, which was due to degenerative disc disease.
35 The plaintiff was also being seen by Dr Ian Katz for treatment of depression. By April 2011, the plaintiff’s sleep pattern had improved and his depression appeared to be slowly resolving. He had seen a psychologist, Ms Colleen Colman, in relation to anxiety after the death of the patient for whom he had been caring as an Intensive Support Worker. In 2010, he had what appeared to be a relapse of his hepatitis-type infection. It was noted that he had abstained from intravenous drug use for some four years. Later in 2010, he was showing good exercise performance for his age, limited by dyspnoea, although there was also a reference from Monash Southern Health to the fact that he had sharp back discomfort provoked by moderate exertion.
36 The Defendant’s Court Book contains a large number of reports and the like from Dr Katz, the plaintiff’s treating psychiatrist. Some of these were compiled between November 2009 and October 2010, and a larger number are from 15 June 2014 to February of this year. I shall return to them.
37 Associate Professor Kenneth Myers, consultant general surgeon, saw the plaintiff at the request of his then solicitors, reporting on 9 February 2010. Essentially Associate Professor Myers was of the view that the plaintiff was permanently disabled because of his back problems, associated with depression, and had no work capacity. He expressly stated that he did not think that there were significant problems in either leg or either arm that would restrict the plaintiff’s work activities.
38 The defendant also placed in evidence a report from Mr Keith Elsner, orthopaedic surgeon, of 8 June 1997, which seems to be entirely directed to the laceration injury suffered by the plaintiff to his right lower leg. At the time, the plaintiff was working full-time and Mr Elsner considered that he had only a mild permanent incapacity in relation to his right lower leg. in addition, a report and a letter from Dr Chris Grant, psychiatrist, these both being dated in early 2009 and relating to the plaintiff’s employment with the Eastern Region Mental Health Association and the death of his client, were put in evidence. Dr Grant found that the plaintiff gave a fluid account of himself, with no hallucinations, abnormalities or the like. He diagnosed a mild adjustment disorder with depressed and anxious mood, and emphasised that the condition was relatively mild. No restrictions from a psychiatric perspective were present and the plaintiff had a full work capacity.
39 A Medical Panel expressed its opinion as to the plaintiff’s degree of permanent whole person psychiatric impairment on 14 September 2011, this opinion being in response to a referral from the insurer relevant to the plaintiff’s claim against Eastern Region Mental Health Association. It is evident that, when the Panel enquired about the plaintiff’s current physical state, he referred to the fact that he had had constant low back pain since an injury at work in 1986, which pain varied in intensity. Apart from the Q fever, varicose veins and the like, the plaintiff’s complaint in relation to physical injuries focussed upon his back. He mentioned the 1999 aggravation, prior to his stopping work. He had engaged in various employments subsequently. The Panel concluded that the plaintiff was suffering from an adjustment disorder with depressed mood due to a variety of causes, also being of the view that his psychiatric condition had stabilised and was permanent. The Panel took a history of a number of physical ailments, none of which included any injury to the right upper limb. It is apparent that the Panel did not consider that the plaintiff’s level of whole person psychiatric impairment was of great magnitude.
40 Mr Michael Troy, surgeon, saw the plaintiff at the request of the then defendant on 24 January 2012. Having described the 1999 accident, the plaintiff gave what appears to be a somewhat vague description of symptoms, most of which related to his back. For example, he said that he was not able to sleep on his back. The diagnosis of Mr Troy was one of degenerative changes at L4-5 and L5-S1, aggravated by the incident in 1999. He made an assessment of permanent impairment pursuant to the AMA Guides, confining this to the lumbosacral spine.
41 Mr Troy saw the plaintiff again in relation to the accident of May 1999 on 13 July 2012. This also appears to have been at the request of the then defendant. Mr Troy recorded that, at the time of the 1999 accident, the plaintiff was admitted to Dandenong Hospital with symptoms in his neck, left shoulder and left arm. He told Mr Troy that his right shoulder was also difficult to move and that sleeping on it was painful. However, his left elbow hurt even if he put it on the table. Mr Troy found that the examination of the right shoulder was normal and his diagnosis was that, in the accident of 1999, the plaintiff had suffered a soft tissue injury to the cervical spine and the left shoulder. He noted a restricted range of abduction in the left shoulder. He also referred to an injury to the lumbar spine. A principal object of his examination seems to have been the assessment of permanent impairment in relation to the AMA Guides. Mr Troy found a 5 per cent whole person impairment of the cervical spine, although reducing that for pre‑existing degenerative changes. He found 2 per cent whole person impairment of the left shoulder and made no assessment for the right shoulder.
42 Dr Richard Prytula, psychiatrist, saw the plaintiff at the request of the then defendant on 13 February 2012. Whilst this is shortly after the accident which is the subject of the present application, there is no mention of it in the report. In the opinion of Dr Prytula, there was no significant psychiatric illness present. Any Whole Person Impairment would be zero.
43 The defendant also placed in evidence a report from Dr Philip Mutton, occupational physician, of 4 July 2013. It is addressed to the plaintiff’s then solicitors. At least one page of it is very difficult to read, and the focus of Dr Mutton was clearly on the 1999 injury. In relation to current symptoms, the plaintiff did describe some pain over the lower neck to the right trapezius, which could be a sharp pain at times, and some pain over the right scapular. He also described pain throughout the right upper limb, with fairly constant pain at the right elbow. Apart from one page being extremely difficult to read, the clear impression gained is that there was a further page, or that there were further pages, which have not been included.
44 Dr Wendy Triggs, consultant psychiatrist, saw the plaintiff at the request of the then defendant on 14 March 2014. This consultation also related to the accident of May 1999. The plaintiff described intermittent headaches and said that his sleep was often disturbed, causing him to wake during the night with physical pain. There appears to be no reference to the accident the subject of the present application in the report of Dr Triggs. Dr Triggs believed that the plaintiff was suffering from an adjustment disorder and symptoms of traumatisation, also believing that he had a substance abuse disorder, which was currently in partial remission. She noted that he was seeing Dr Katz every month, predominantly for prescriptions for anti-depression depressant medication and the like. Dr Triggs observed that it had been a significant period of time since the plaintiff had been able to work, and she did not see this state of affairs changing. She considered that the onset of his current psychiatric symptoms was multifactorial.
45 Dr Triggs saw the plaintiff again on 9 July 2014. Since she had last seen him, the plaintiff had undergone a pain management program. He was on a disability support pension. She also recorded that the plaintiff stated that a workers compensation claim for his shoulder injury was not put in at the time. He had no particular post-traumatic symptoms related to his shoulder injury. That observation may be a reference to symptoms of a psychological or psychiatric nature, because, under the same heading, Dr Triggs has recorded that the plaintiff has physical pain in his shoulder which affects some of his capacity to function. The plaintiff also told Dr Triggs that his main form of transport was a motorcycle, but his shoulder was often painful. To Dr Triggs, he described an injury to his shoulder two and a half years previously and had not worked since. Whilst it is not spelled out, this would appear to be a reference to the right shoulder injury the subject of the present application. She also recorded his previous history of the injury in 1999 to his neck, back, left arm and shoulder. Dr Triggs stated that the plaintiff appeared to suffer with an adjustment disorder, along with substance abuse which was in partial remission. The plaintiff was taking antidepressant medication and seeing a psychiatrist regularly.
46 Mr Clive Jones, orthopaedic surgeon, saw the plaintiff at the request of the defendant on 12 March 2014. It is apparent that he conducted the interview and examination under some difficulties. Whilst considerable material was forwarded with the referring letter from the defendant’s solicitors, this did not arrive until 18 March 2014. In addition, Mr Jones described the plaintiff as being “not the easiest historian, with a relatively poor recall of times, dates and events”.
47 The impression given was that Mr Jones was examining on the basis of injury sustained by the plaintiff when employed by his family company. In any event, Mr Jones took a history of chronic back pain that was always present. Symptoms were localised to the lumbar spine and leg raising was somewhat restricted. His opinion was that the plaintiff presented with chronic low back pain, presumably discogenic in origin and which had been treated with varying levels of success since 1999 and possibly even earlier. The findings on examination were consistent with symptomatic lumbar disc degeneration. Mr Jones thought that the plaintiff had a light work capacity of some sort, with minimised bending, lifting and the like.
48 Mr Jones saw the plaintiff again on 8 July 2014, this time having material provided in advance. On this occasion, he was aware that he was examining in relation to the injury with Ozdairy. He noted earlier left shoulder problems. He noted that the plaintiff could not sleep on his right shoulder and that it was painful to elevate the right arm above shoulder level. He considered these to be typical complaints associated with shoulder tendonitis. His diagnosis was of shoulder pain, tendon inflammation, tendon calcification and shoulder bursitis. He did not believe that the plaintiff’s employment had contributed to the injury to the right shoulder, but this seems to have been almost entirely on the basis that the claim was “highly suspect” because of the belief of Mr Jones that the claim was not received until two years after the alleged injury occurred. Otherwise, there is no clear indication that Mr Jones had formed the opinion that the injury and symptoms were inconsistent with the alleged cause.
49 Dr David Douglas, consultant occupational physician, saw the plaintiff, apparently at the request of the defendant, on 17 November 2014. For some reason, the copy of his report tendered as part of the Defendant’s Court Book is not complete. This may be because the examination appears to have been in relation to a superannuation type of policy. The history which he took was of the plaintiff ceasing work with Ozdairy because of worsening neck and back pain, along with increasing depression. Subsequently, he referred to the plaintiff as having suffered a recent strain of the right shoulder when exercising at a pain management clinic. The examination conducted by Dr Douglas seems to have been addressed to various parts of the plaintiff’s body. He noted that there was a restricted range of movement of both shoulders throughout all planes. He described the plaintiff as being significantly disabled because of his long-standing depressive illness, previously complicated by drug dependence. He also referred to the plaintiff as being disabled by persistent spinal pain due to advanced degenerative changes in the lumbosacral spine and less severe changes in the cervical spine.
50 Dr Douglas expressed the opinion that the plaintiff was severely disabled by his diagnosed conditions and was permanently incapacitated for any remunerative work. He noted that the plaintiff had no formal qualifications and was no longer strong enough for physically demanding work.
51 Dr Michael Bloom, occupational environment physician, saw the plaintiff at the request of the defendant on 2 December 2014. I note that Dr Bloom was under the impression that he was examining the plaintiff in relation to claimed injuries to his back, neck, shoulders and elbow while in the course of his employment between 27 November 2011 and 26 April 2012. He found the plaintiff to be unable to offer a very precise account of things. As is evident, Dr Bloom’s initial impression of what was being claimed was somewhat broad in nature, but ultimately became focussed much more upon the plaintiff’s right shoulder and, to a lesser extent, his right elbow. The plaintiff indicated that his right shoulder condition was unchanged and that he experienced daily pain associated with activity. Examination of the plaintiff’s right shoulder revealed subtle wasting of the scapular muscles and restriction in the range of abduction and flexion. Rotation was full. There was tenderness over the bicipital groove and over the trapezius.
52 Dr Bloom had been provided with various radiological reports. In his summary of history and presentation, he referred to the plaintiff as having a very complicated history. However, he noted that, when discussing his employment with Ozdairy, the plaintiff made no mention of regions of his body other than the right shoulder. He repeated that, in discussing his claimed injury of 12 January 2012, the plaintiff only made reference to right shoulder pain. In relation to that injury, Dr Bloom thought that ideally the plaintiff would avoid surgical treatment and focus on restoration of function with an exercise program. He thought that the clinical findings were probably “very roughly” consistent with the medical imagery of calcific tendinopathy and mild rotator cuff bursitis, but thought that the demonstrated level of disability was possibly somewhat disproportional. He noted that the imaging of the right shoulder on 6 June 2014 identified calcific tendinopathy. He commented that this is regarded as a condition rather than an injury, and tends to gradually resolve over a period of time. In the early stages it can be quite painful and relatively disabling. He thought that it was likely that the plaintiff suffered some dysfunction of the right shoulder prior to working with Ozdairy. Although there may be some amplification by reason of adverse psychosocial factors, the changes noted on ultrasound imaging for the right shoulder could explain his dysfunction and symptoms.
53 Taking the plaintiff at face value, Dr Bloom thought that there was a genuine dysfunction of the right shoulder. Whether the plaintiff’s work still materially contributed to the right shoulder condition was a matter of conjecture. Dr Bloom seemed to be of the view that the work contribution to the right shoulder condition was diminishing. However, ultimately it was possible that the plaintiff’s right shoulder condition was continuing to be contributed to by the relevant work. He thought that the plaintiff could return to work with restrictions. If it is accepted that the claimed injury exacerbated or aggravated the plaintiff’s right shoulder condition, his reduced state of capacity in relation to it continued to be materially contributed to by that injury.
54 As it was said at the outset that the plaintiff was not going to be advancing any arguments in relation to economic loss, portions of the report of Dr Bloom are of reduced relevance. A brief supplementary report of 17 December 2004 put the proposition that, if the plaintiff did not complain of his right shoulder injury or pain until some two years after the event, any dysfunction would not have been caused or contributed to by his employment with Ozdairy.
55 The defendant also placed in evidence two reports from Associate Professor Kenneth Myers, consultant general surgeon, these reports being addressed to the plaintiff’s former solicitor. The earlier is dated 15 April 2014. The history obtained by Associate Professor Myers is brief, referring to the plaintiff having worked at Ozdairy and, as a result of unloading large containers, suffering a strain of the neck and developing troubles with the right elbow. It is apparent that Associate Professor Myers had seen the plaintiff on a couple of earlier occasions not related to this application. Associate Professor Myers did not seem to have been provided with any radiological material and seems to have thought that he was dealing with a matter relating to the cervical spine and probable tennis elbow on the right side. He thought that the spinal problem would prevent the plaintiff from returning to work.
56 Subsequently, Associate Professor Myers provided a supplementary report, based upon further material that had been provided. This seems to have been related to back problems, depression problems and the like. These reports do not take matters much further in relation to pain and suffering associated with the specific right shoulder condition.
57 Also placed before me by the defendant were various reports from Dr Ian Katz, the plaintiff’s treating consultant psychiatrist. The earliest of these is dated 15 June 2014 and states that the plaintiff had been under the care of Dr Katz for three years. There is a reference to chronic lower back pain, issues with narcotics, Q fever, history of a significant depressive illness now more or less in remission, and various psychosocial issues.
58 In subsequent correspondence, there is a reference to the plaintiff not having a capacity for work. This was because of a combination of ongoing psychiatric difficulties and long-standing chronic back pain. A note of 8 June 2015 to the plaintiff’s then solicitor is to the effect that the plaintiff’s depression had stabilised but he was still troubled by chronic back pain. A brief letter of 19 April 2016 to Dr Abdelmalak mentions that the plaintiff had been re-referred to him, also stating that the plaintiff “has been a pleasure to look after”. There is a reference to the medication which the plaintiff has received, and the fact that his chronic back, neck and shoulder pain greatly improved when he was started on Lyrica some two months previously. It was noted that the plaintiff was no longer using substances, but engaged in occasional binge consumption of alcohol on weekends.
59 A brief note to Dr Jim Harkness, who may well be a rheumatologist, on 17 August 2016 thanks him for seeing the plaintiff, whom Dr Katz described as “a delightful long-standing patient of mine”. He stated that the plaintiff has had long-standing severe right shoulder pain and had received a Cortisone injection which had not been particularly effective. Apparently, an appointment was to be made.
60 There is also a note of 11 January 2017 from Dr Katz to Dr Jennifer Harmer, consultant rheumatologist. This seems to have been a letter of thanks for an assessment of the plaintiff’s shoulder condition. Similarly, there is a more detailed letter to Dr Malcolm Barnes, gastroenterologist, of 4 July 2017. Whilst this contains a reference to shoulder pain, it is more a side issue, the thrust of the letter involving a possible reassessment of liver disease.
61 There is a brief letter from Dr Katz to Dr Abdelmalak, this being dated 7 February 2018. It is in this report that it is stated that the plaintiff is “a delight to look after and who has done fantastic this last period of time”. The plaintiff’s depression is described as being in full remission. There is a reference to the fact that the plaintiff still had chronic right shoulder pain, Dr Harmer having apparently suggested a physiotherapy program.
62 The defendant also placed in evidence a brief letter from Dr Katz to the plaintiff’s present solicitors, such letter being dated 20 June 2018. It refers to the fact that the plaintiff was quite apprehensive about his WorkCover case and the confusion that seems to exist between his current matter and a previous one. Dr Katz noted that the plaintiff had not used heroin for over five years and that issues of substance abuse were no longer relevant to his presentation.
63 Finally, the defendant placed in evidence a brief report of 24 February 2019 from Dr Katz to the plaintiff’s present solicitors. It is to the effect that the plaintiff has had a diagnosis of depressive disorder, but his depressive illness, which was contributed to by his “experience” at Ozdairy, is in remission . The plaintiff was continuing to suffer several musculoskeletal elements, including shoulder pain. His psychological injuries had stabilised, but his future prognosis was uncertain. It was unlikely that he would be able to return to the workforce.
64 That concludes the summation of the large amount of medical material put before me in this matter. In what is a somewhat complex and, at times, confusing case, the diagnosis of the condition of the plaintiff’s right shoulder seems to me to be comparatively clear-cut. The diagnosis of Mr Chehata, orthopaedic upper limb surgeon, is one of small partial thickness rotator cuff tears with secondary calcific tendonitis and resultant subacromial bursitis. This is consistent with the diagnosis of Dr Mittal, pain physician and specialist anaesthetist, that the cause of the plaintiff’s chronic right shoulder pain is partial thickness rotator cuff tear of the supraspinatus tendon with calcific tendonitis and ongoing subdeltoid bursitis. Such opinions were doubtless based upon, and are consistent with, the radiological findings of 17 May 2016 and, at least to some extent, those of 15 February 2017. Dr Michael Bloom, examining on behalf of the defendant, also referred to medical imaging of calcific tendinopathy and mild rotator cuff bursitis. In any event, the opinions of the plaintiff’s expert witnesses seem to be consistent and in accordance with the radiological findings, and I accept them.
65 I also accept that the pain and suffering consequences emanating from the plaintiff’s condition are permanent within the meaning of the Act in that they will persist for the foreseeable future. Mr Chehata, in his more recent report of 27 March 2019, stated that the plaintiff’s injury had stabilised and that the prognosis, at best, would be considered guarded. Dr Mittal expressed the opinion, specifically related to the right shoulder injury, that the plaintiff’s prognosis was poor. He still required active treatment to be able to reduce the intensity of his pain and improve his quality of life, but the injury appeared to have stabilised.
66 I note that Dr Michael Bloom, examining on behalf of the defendant, whilst implicating the pre-existing situation and effectively stating that the contribution of the alleged accident would cease, stated that the right shoulder dysfunction was likely to take many months to fully resolve, but also stated that the situation was very unlikely to change in the foreseeable future. The concluding part of those observations may have been meant to embrace other factors. In any event, I prefer and accept the opinions of Mr Chehata, who specialises in injuries to the upper limbs, and Dr Mittal, who is a pain physician and specialist anaesthetist.
67 Whist the history of events is not entirely clear, it does not seem to me that the situation is one of aggravation of a pre-existing condition. Much has occurred in the plaintiff’s life and there have been earlier references to right sided neck pain and the like. However, it does not appear to me that there were any right shoulder symptoms of any magnitude prior to the employment with Ozdairy and prior to the date upon which the plaintiff alleges the accident occurred. In short, if the plaintiff’s account of things is accepted and the occurrence of the accident is established, it does not seem to me that there were any previous right shoulder symptoms of any magnitude.
68 Pursuant to s134AB(38)(h), psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition. Accordingly, they shall not be. The plaintiff’s treating psychiatrist, Dr Katz, has referred to the plaintiff as having a diagnosis of a depressive disorder, although referring to his depression as being in full remission as at 7 February 2018. The plaintiff has had long-standing problems in relation to his mental health. There is a history of substance abuse. In accordance with the Act, psychological or psychiatric consequences of the plaintiff’s physical right shoulder injury shall not be taken into account.
Other developments since the accident
69 The plaintiff worked on after the accident with Ozdairy. He performed duties which were meant to be light until finally ceasing work on 26 April 2012. He has not engaged in employment since that date. As shall be discussed, he has suffered from some other illnesses and symptoms since cessation of work.
Ruling
70 The first issue to be determined is whether the plaintiff has established that he sustained an injury to the right shoulder on 12 January 2012, at some other time, or during the course of his employment generally. However, given the way in which the case was opened and presented, the plaintiff is heavily reliant upon establishing a specific incident of injury on 12 January 2012. I would refer to T3. To a limited extent there was also reliance upon some hammering work performed by the plaintiff on a later day. However, the situation seems to be that the initial question as to whether or not the plaintiff suffered a right shoulder injury when employed by Ozdairy will succeed or fail upon the question of whether the accident occurred on 12 January 2012.
71 The credit and reliability of the plaintiff is an issue which obviously plays a significant role in the answer to that question. As I have stated previously, I found him to be an honest witness who did his best to answer questions accurately.
72 I would also refer to the clinical notes of Dr Abdelmalak of the Silverton Clinic on 6 February 2012. These refer to an issue with the employer in relation to documentation about an injury. It is recorded that the plaintiff stated that the problem commenced on 12 January 2012 when he was unloading a shipping container and was aggravated by hammer work on subsequent days including 25 January 2012 and leading to cessation of work on 31 January. Admittedly, the complaint is specifically directed to pain in the right elbow. However, the fact remains that the plaintiff was making a specific complaint concerning injury to his right upper limb and his description of the circumstances in which such injury occurred is essentially the same as that which he has continued to give.
73 Further, the plaintiff had earlier attended the same doctor (and this followed the retirement of his usual treating general practitioner) on 3 February 2012. A more abbreviated history was taken on that earlier date, but nevertheless it is consistent and reads as follows:
“R elbow pain, injury at work last week, again on Tuesday after lifting heavy fridge, using hammer.”
74 I appreciate that again it is elbow pain rather than shoulder pain concerning which a complaint is being made, and that the dates mentioned are a little confusing, but again this abbreviated description is largely consistent with what the plaintiff has continued to assert in relation to suffering an injury to the right upper limb.
75 In his oral evidence, the plaintiff referred to the “workplace” refusing to pay the medical bill of 12 January 2012. This is also consistent with the history taken on 6 February 2012 by Dr Abdelmalak that there was “some issue” with the employer in relation to receipt of documentation concerning the injury. In relation to this, I would refer to the plaintiff’s evidence at T64. Further, the plaintiff gave evidence that initially his elbow was significantly more painful than his shoulder – again see T64 and 65.
76 The bottom line is this. I accept that the incident of injury occurred as described by the plaintiff on 12 January 2012 and that it may have been aggravated by subsequent hammering activity. I accept that the injury to the right shoulder occurred then, even if the elbow was more painful at the time.
77 There is then the issue of the passage of time which occurred before there is clear reference in the notes of the Silverton Clinic to right shoulder or upper limb pain. It does not seem to have been mentioned again until 3 June 2014, when there is a specific reference to right shoulder pain being aggravated whilst the plaintiff was “doing rehab”. I would point out that what is there described is an aggravation, as opposed to a causation.
78 Next, it is also to be observed that the plaintiff had suffered various illnesses during the intervening period and had attended his doctor in relation to them. He appears to have suffered from hepatitis and had been attending a liver clinic.
79 The plaintiff had undergone gastroscopy and colonoscopy. He had suffered pain emanating from his back and neck. He had suffered from depression and anxiety and had been prescribed medication in this regard. His back and neck pain had prevented him from working (it is to be remembered the plaintiff is not seeking leave in relation to economic loss in the present case). True it is that the plaintiff did not refer to right shoulder pain during this period, but he was being beset by other illnesses and problems.
80 I also point out that the history of some aggravation or flare-up of symptoms whilst attending “rehab”, as set out in the clinical note of 3 June 2014, is consistent with the history obtained some years later by Dr Mittal. Apart from having a reasonably accurate history of the original incident, she has recorded that the plaintiff suffered a flare-up of right shoulder pain when performing Tai Chi exercises as part of a pain management program. As earlier stated, her opinion was that the plaintiff had chronic right shoulder pain secondary to an injury sustained at work.
81 I also accept the proposition that the plaintiff frequently was keeping his claims separate. His back problems had been ongoing since approximately 1999 and, as discussed, there was a claim in relation to them and many medical examinations concerning them. When attending medico-legal examinations in relation to that claim, he did not necessarily discuss his right shoulder injury. On several occasions he confined what he had to say to the injury for which he was being examined. In a man with a very complicated medical history, this does not strike me as an entirely unreasonable approach to adopt.
82 For the above reasons, and again emphasising that I found the plaintiff to be a credible witness, I accept that the plaintiff suffered the right shoulder injury in the manner which he has described and upon which he relies.
83 The question then is whether the physical consequences of that injury are sufficient to satisfy the statutory test. In my opinion, they are. I would point to the following matters, which are not listed in order of importance or significance.
(a) As was said by Brooking JA in Palmer Tubes Mills Aust Pty Ltd v Semi [1998] 4 VR 439 at [448] as follows:
“Moreover, in ‘serious injury’ applications the credit of the applicant is of great importance …”
This observation has been referred to more recently by the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 and in Haidar v Transport Accident Commission [2016] VSCA 182. As earlier stated, I regard the plaintiff as being an honest and accurate witness. I accept both his oral evidence and what is contained in his affidavits;
(b)in his earlier affidavit, the plaintiff is referred to having a constant, variable pain in his right shoulder. He has repeated that in his affidavit of 1 May 2019. As was said in Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
In his more recent report of 27 March 2019, Mr Chehata has referred to the plaintiff’s pain, restriction and disability as continuing to remain significant, in addition to impairing his ability to perform normal activities of daily living. Dr Mittal has described the plaintiff’s right shoulder pain as being chronic. In his most recent report of 2 May 2019, the plaintiff’s general practitioner, Dr Atef Abdelmalak, has referred to the fact that the plaintiff has suffered from right shoulder pain for the previous seven years. In her affidavit of 1 May 2009, Ms Marina Matos, the plaintiff’s partner, has described the severity of the pain from which the plaintiff apparently suffers. She was not cross-examined. There are no up-to-date medical reports from examinations carried out on behalf of the defendant. It is apparent that the plaintiff has tried various medications and has undergone a number of radiological investigations. Cortisone injections have been tried. I accept that the plaintiff suffers from permanent constant pain emanating from his right shoulder;
(c)in his earlier affidavit, the plaintiff has sworn as to how his right shoulder pain prevents him from getting to sleep and often wakes him up. He swore that “This pattern occurs night after night and leaves me feeling tired and lethargic”. In his more recent affidavit, he has described how he often wakes in the middle of the night in severe pain, having unknowingly rolled onto his right side. In Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, Maxwell P stated as follows:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep.”;
(d)both the plaintiff and his partner have sworn to the fact that there has been an effect upon their intimate relations. This is also a matter of importance;
(e)the plaintiff has sworn as to the effects of his right shoulder injury upon his everyday life. The plaintiff used to engage in fishing, which he no longer enjoys. As sworn by Ms Matos, the plaintiff was a keen motorcyclist and many of his friends also engaged in that activity. He has retained one motorcycle, but does not take it riding. He has resisted suggestions that he should sell it. The plaintiff finds that the difficulties with his right shoulder impact upon his everyday activities, such as cooking, household chores and the like. He was an avid gardener, but is now limited in that regard. One of his favourite activities was doing up old cars, but as a result of the pain in his right shoulder, arm and neck, he can no longer work in the required positions and has not done up any cars for several years. As has been mentioned, such activities as fishing, camping motorcycle riding and the like, are activities in which he can scarcely engage, if at all;
(f)it is to be remembered that the plaintiff is right-hand dominant. Thus, as has been submitted on behalf of the plaintiff, he has suffered a debilitating injury to his dominant upper limb. I would also agree with the submission on behalf of the plaintiff that, at least to a considerable extent, the plaintiff’s evidence as to his ongoing pain and limitations was not challenged.
84 Bearing in mind all of the above, I find that the plaintiff has discharged the burden of proof.
Conclusion
85 The plaintiff is successful. He has discharged the burden of proof. Leave is given to him to bring proceedings in respect of pain and suffering damages. I shall hear the parties as to any ancillary orders that are required.
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