Severino v Wesfarmers Limited
[2015] VCC 822
•26 June 2015
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05170
| DAVID JOHN SEVERINO | Plaintiff |
| v | |
| WESFARMERS LIMITED | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 12 and 15 June 2015 | |
DATE OF JUDGMENT: | 26 June 2015 | |
CASE MAY BE CITED AS: | Severino v Wesfarmers Limited | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 822 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Compensable injury to the left elbow – impairment of left upper limb function – need to disentangle consequences arising from impairment of function of neck and right shoulder – whether the pain and suffering consequences are “serious”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: The plaintiff is granted leave to bring a proceeding at common law to recover damages for pain and suffering consequences.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B E Walters QC with Mr K D Mueller | Saines & Partners Pty Ltd |
| For the Defendant | Mr P A Scanlon QC with Ms F A L Ryan | Thomson Geer |
HIS HONOUR:
Introduction
1 The plaintiff is a fifty-year-old man. He was born in October 1964. He is married. He has no children from his relationship. His wife has children from a previous relationship. She has one grandchild, who the plaintiff treats as his own grandchild.
2 The plaintiff was educated to Year 10 level. He worked in a number of occupations before obtaining employment with Friction Material Pacifica (“FMP”) in about 1995. He also obtained a second job in about 1995 with the defendant, which traded as Coles Supermarket.
3 The plaintiff was injured on 31 October 2011. At that time, he was employed by the defendant as a night filler at a supermarket in Wendouree. He worked about 15 hours per week, spread over three days. At that time, he also was employed by FMP as a supervisor. He worked normal hours and some overtime. That work involved not only supervisory duties, but a lot of hands-on work.
4 At the time of the occurrence of the incident, the plaintiff was earning about $65,000 gross with FMP, and $170 to $180 with the defendant.
The incident
5 On 31 October 2011, the plaintiff was pushing a loaded stock trolley. As he negotiated a corner, one of the wheels of the trolley locked, which resulted in him twisting and wrenching his left elbow.
What is in issue?
6 Mr Walters QC, who appeared with Mr Mueller of counsel for the plaintiff, submitted that the plaintiff initially suffered an injury to his left elbow which has since produced an impairment of the function of his left upper limb. Mr Scanlon QC, who appeared with Ms Ryan of counsel for the defendant, conceded that the injury to the plaintiff’s left upper limb constituted a compensable injury.
7 The first issue, therefore, is whether the impairment of the function of the plaintiff’s left upper limb has pain and suffering consequences which meet the statutory test of seriousness.
8 Mr Scanlon submitted that there are two other issues which impact upon whether the pain and suffering consequences meet that test. The first is based upon Peak Engineering & Anor v McKenzie.[1] The plaintiff suffered a level of impairment of function of his neck and right shoulder which are productive of pain and suffering consequences. Those consequences must be excluded.[2]
[1][2014] VSCA 67
[2]paragraphs [2] and ]24]
9 The second issue was based upon a submission, later abandoned, that the plaintiff had suffered an emotional disorder consistent with paragraph (c) of the definition of “serious injury”. It was initially submitted that the plaintiff bore an onus to unravel or disentangle what contribution that emotional disorder added to the pain and suffering consequences relied upon by the plaintiff.
The medical evidence
10 I will briefly traverse some of the relevant medical evidence. The plaintiff saw Dr Anderson, general practitioner, in late November/early December 2011. The plaintiff informed him that he had suffered an injury to his left elbow. Dr Anderson referred the plaintiff to have an ultrasound, which was undertaken on 7 February 2012. The radiologist reported that it demonstrated a small partial tear of the common extensor tendon origin in the left elbow measuring 5 millimetres by 3 millimetres x 1 millimetre. It would appear that Dr Anderson prescribed the plaintiff anti-inflammatory medication and advised him to wear an elbow brace. He also referred the plaintiff to have two injections into his left elbow which were described as blood injections.
11 The treatment provided by Dr Anderson did not improve the pain the plaintiff was experiencing in his left elbow. That led Dr Anderson to refer him to Mr Byrne, orthopaedic surgeon, who first saw the plaintiff on 6 August 2012. Mr Byrne made an initial diagnosis of epicondylitis. He advised the plaintiff to pursue conservative treatment. That treatment did not provide the plaintiff with any significant amelioration of his symptoms.
12 Mr Byrne then provided the plaintiff with active treatment. On 20 September 2012, Mr Byrne administered an injection of cortisone into the common extensor origin of the plaintiff’s left elbow. On 29 October 2012, the plaintiff told Mr Byrne that the injection had given him temporary relief.
13 On 13 December 2012, the plaintiff told Mr Byrne that over the preceding six months, he had experienced pain in his right shoulder and in the right side of his neck. The plaintiff had physiotherapy and cortisone injections, presumably into his right shoulder, neither of which ameliorated the symptoms of pain he was experiencing. On examination, Mr Byrne found marked tenderness over the medial border of the plaintiff’s right scapula.
14 Mr Byrne referred the plaintiff to have an MRI scan of his right shoulder, but due to the plaintiff’s feelings of claustrophobia in the MRI device, he had a CT scan on 5 February 2013. This scan did not demonstrate any significant abnormality in the plaintiff’s right shoulder. It did demonstrate bilateral facet arthritis at T6‑7 and all levels to T10-11.
15 In the meantime, Mr Byrne saw the plaintiff on 4 February 2013 to review the condition of his left elbow. Mr Byrne had previously advised the plaintiff that an arthroscopic lateral release of the common extensor origin might be an appropriate form of treatment. The plaintiff told him that he was not keen to have surgery. The plaintiff last saw Mr Byrne on 7 February 2013. He considered that the injury to the plaintiff’s left elbow was consistent with epicondylitis. He considered that the right shoulder pain was most likely related to his thoracic spine and facet arthritis.
16 The balance of the medical evidence relied on by the parties comprises medico-legal examinations. I propose to set out the histories, examination findings and opinions in some detail, because of the nature of the attack made on the plaintiff’s case by the defendant.
17 There were two major platforms to that attack. Firstly, Mr Scanlon’s cross-examination in which he challenged whether the plaintiff had suffered particular pain and suffering consequences or to the extent contended for by the plaintiff; and, secondly, films which were said to be in stark contrast to the plaintiff’s evidence, demonstrating that he is far more physically capable than he was prepared to admit.
18 Mr Kierce, orthopaedic surgeon, first saw the plaintiff on 23 October 2013. After rehearsing the plaintiff’s treatment history, he recorded the plaintiff’s left elbow presenting complaints as follows: stiffness in the mornings; difficulty twisting his left wrist and straightening his left elbow; pain on grasping objects; pain in the left elbow when pushing a wheelbarrow and lifting a wheelbarrow; difficulty with general lifting if his left hand is pronated – lifting weights of 1 kilogram; pins and needles and numbness during the night and first thing in the morning; loss of strength in the left hand; clenching a fist, causing pain in the outer aspect of left arm; writing and using a keyboard for about 10 to 15 minutes, causing further pain in the left elbow, and swelling to the left elbow after doing some gardening, even when wearing an elbow strap.
19 On examination, Mr Kierce found some wasting of the left forearm of .5 centimetres; tenderness over the olecranon bursa on the point of the left elbow; tenderness on palpation of the left forearm extensor or muscles; tenderness over the left ulnar nerve with a positive Tinel’s sign with some paraesthesia going down the inner aspect of the left forearm, and a positive provocative test for left lateral epicondylitis.
20 Mr Kierce considered that the plaintiff had suffered a tearing of the common extensor origin of the left forearm at the left elbow, giving rise to left lateral epicondylitis, which he thought had partially resolved. He considered that the tearing had resulted in a permanent incapacity in the plaintiff to undertake heavy manual work requiring the use of his left arm in lifting, using heavy jarring implements such as picks, shovels and crowbars or the driving of machinery which caused vibrations.
21 Mr Kierce examined the plaintiff on a second occasion on 5 May 2015. The plaintiff’s presenting complaints were consistent with what Mr Kierce had previously recorded after examining him on 23 October 2013. On examination, he found that the plaintiff was tender over the left forearm extensors, but he was no longer tender over the left lateral or medial epicondyles; he could flex his left elbow through 130 degrees, but lacked 40 degrees of extension; he had a full range of pronation and supination; the provocative tests for tennis elbow were positive; he was no longer significantly tender on pressure over the left ulnar nerve, and he had blunting of sensation of all of his left fingers.
22 Mr Kierce repeated his earlier stated opinion regarding the nature of the injury suffered by the plaintiff. He considered that there had been a worsening of the plaintiff’s left elbow injury because of the lack of 40 degrees of extension of his left elbow compared to 15 degrees, which was his earlier finding. In addition to examining the plaintiff’s left elbow and forearm, he examined the plaintiff’s left shoulder, which led him to conclude that the plaintiff was suffering from adhesive capsulitis of his left shoulder which he considered was related to his left elbow injury. He then essentially repeated his previous opinion regarding the work which the plaintiff could undertake.
23 Mr O’Brien, orthopaedic surgeon, examined the plaintiff on a medico-legal basis on 17 February 2015. After rehearsing the plaintiff’s treatment history, he recorded the plaintiff’s left elbow presenting complaints as follows – the pain fluctuates between 4 to 5 out of 10 on a Visual Analogue Scale; the pain radiates down his forearm into the posterior aspect of the left hand and can extend into the second, third and fourth fingers; the radiating pain was intermittent and associated with pushing and pulling; the pain in the elbow is aggravated by any use of the left hand and arm, for example gripping, doing up buttons, dressing, peeling apple or even lifting a cup, and driving; pain in the top left shoulder which extends over the posterior and lateral aspect of the shoulder. The pain in the shoulder is intermittent, precipitated by repetitive use of the left hand or lifting, carrying or pushing a wheelbarrow, and elevation of the arm above shoulder level causes aggravated shoulder pain.
24 On examination, Mr O’Brien found elbow flexion was 30 degrees to 120 degrees; movement was restricted by pain; the plaintiff reported marked tenderness over the lateral aspect of the left elbow, particularly distil to the left lateral humeral epicondyle; tenderness posteriorly, and the provocative signs in relation to lateral epicondylitis were all positive.
25 Mr O’Brien considered that clinically, the plaintiff demonstrated very positive signs of ongoing lateral epicondylitis of the left elbow, which were responsible for symptoms extending distally into the plaintiff’s left hand. He also examined the plaintiff’s left shoulder. He considered that although what he elicited through examination was not specifically diagnostic, he thought that there was some degree of inflammation in the plaintiff’s left shoulder secondary to the limited use of his arm. He considered that the plaintiff’s condition was stable. He considered that he had a poor prognosis, because there was an established chronic pain situation which had not responded to conservative treatment.
26 Mr Jones, orthopaedic surgeon, examined the plaintiff on a medico-legal basis for the defendant on 25 November 2013. The plaintiff described his current complaints to him as follows: occasional pins and needles involving the fourth and fifth fingers of his left hand which occasionally wake him at night; movements of the left elbow were restricted; diminished power of grip in the left hand when attempting to open a door or using a hammer; an inability to throw a ball; left elbow pain precipitated after driving a car for 20 to 30 minutes; writing and using a keyboard would sometimes aggravate his left elbow symptoms; on occasions, brushing his teeth was a problem; able to start a lawnmower and chop wood; able to use a ride-on mower, but difficulty using the forward reverse lever on it; able to use a brush cutter, but difficulty starting it with his right hand; unable to use a chainsaw, and problems using a wheelbarrow and pruning roses.
27 On examination, Mr Jones found a restricted range of movement from 30 degrees of flexion to 130 degrees; forearm rotation was normal with pronation to 80 degrees in both directions; subjectively, the plaintiff was moderately tender over the left lateral epicondyle; power of grip was slightly diminished; there was some slight subjective paraesthesia involving the skin of the fourth and fifth fingers of the left hand; there was some minor tenderness in line with the ulnar nerve behind the medial, and power of the small muscles of the left hand innervated by the left ulnar nerve are normal.
28 Mr Jones’ first report was directed to offering an opinion based upon the degree of measurable impairment under the relevant guides, pursuant to s98E of the Accident Compensation Act 1985.
29 After examining the plaintiff on 3 September 2014, Mr Jones answered a number of questions relevant to the application for serious injury. On that occasion, the product of his examination appears to have been much the same as it was on the previous occasion. He considered that the plaintiff was suffering from chronic lateral epicondylitis of his left elbow which had manifested itself as a minor restriction of left elbow extension and left elbow pain. He referred to the plaintiff’s description of mild ulnar nerve irritation affecting the left hand, but did not say whether he accepted that to be so. He added that in the long term, the plaintiff’s left elbow would cause him ongoing pain and slightly impaired function in terms of gripping and twisting using his dominant left arm. He considered that the plaintiff only required the use of intermittent analgesia, and that he should avoid aggravating activities. He noted that the plaintiff was living on a property, and was apparently undertaking a reasonable level of physical activity, but had modified many of his activities to enable him to continue working on his property.
The Plaintiff’s evidence
30 The plaintiff swore two affidavits on 19 May 2014 and 29 May 2015. His wife, Kaye Frances Severino, swore an affidavit on 5 June 2015. I have read those affidavits. I have also paid careful attention to the histories recorded by the examining medical practitioners in order to understand what activities the plaintiff was capable of undertaking before he suffered the injury to his left elbow. This allows for a comparison with what he is capable of doing now in terms of what he has lost and what he has retained. I have also considered the content of the films taken of the plaintiff on 16 August 2014 and 2 November 2014.
31 Before summarising the plaintiff’s evidence, and what I saw on the films, I have concluded that there is very little shown on the films which was different from what the plaintiff deposed to in his affidavits, and what is contained in the histories recorded by the examining medical practitioners.
32 The plaintiff described the pain and suffering consequences as follows:
·He continues to suffer pain in his left elbow.
·The pain is constant.
·The level of pain is affected by repetitive or forceful use of his left upper limb, gripping, lifting, pushing, pulling and twisting.
·The level of the pain in the elbow can result in pain in the upper and lower part of his left arm.
·He often suffers pins and needles in his left hand and the fingers of his left hand.
·Cold weather increases the pain.
·He concedes that he can do “just about everything”, but the longer he engages in an activity, the more likely it is that he will suffer pain.
·His sleep is interrupted by pain in his left elbow. He often wakes with pins and needles affecting his left hand and the fingers of his left hand. Straightening his arm while in bed can cause sharp pain which will wake him. He finds it difficult to get comfortable in bed.
33 The plaintiff described the loss of enjoyment of life consequences as follows:
·He is no longer able to work in his second job with the defendant. He used the income derived from that employment to deposit into his superannuation fund. The loss of that job has resulted in him losing $170 to $180 gross per week.
·The plaintiff has a 20-acre block at Scarsdale on which he has built a family home, a large shed and a large water tank.
·He enjoyed playing with his step-grandson, who was born in September 2009. Additionally, he enjoyed a good relationship with other family members. He is less able to play with his step-grandson, and has become somewhat intolerant of him.
·He used to cut all of the firewood using a chainsaw and a splitter. He still uses the chainsaw, but he now buys a significant amount of firewood.
·He is less able to build up the 20-acre property, and in particular, a garden. I will return to this subject in more detail when I summarise the substance of the films taken of the plaintiff.
·He is able to use a Whipper Snipper, a chainsaw and a hand-held hole digger. He is not able to use a motor-driven posthole digger which he purchased to dig holes to build fencing on his property so that he could run sheep and alpaca.
·He is unable to throw a ball.
·His sexual relationship with his wife is diminished.
·When he drives a car, he predominantly uses his left hand on the steering wheel, and when applying the brake, he uses his right hand. On occasions when he has forgotten about the condition of his left hand and has used it to apply the brake, he has suffered more pain in his left elbow.
·Social and recreational outings with his wife and step-grandson, such as going on long drives and other outings, are diminished.
·His personal toileting has been affected, for example brushing his teeth is difficult and awkward.
·He uses Mersyndol Forte for pain relief, taking about two each day.
34 I will now summarise the films taken of the plaintiff. Before doing so, I should make some general observations about what I saw on the films. The person taking the films appeared to be positioned on a roadway with the camera directed towards the buildings on the plaintiff’s property. To the right-hand-side is a large dark green shed. In front of the shed are garden beds which run the whole length of the shed. He estimated that the shed is about 16 metres x 7 metres. To the left-hand side of the shed is a trampoline on supporting legs with a curtain arrangement around it. Further left is the house on the property. In front of the house is a large pile of yellow material which the plaintiff described as crushed rock which he intended to spread over garden beds. Although it was difficult for me to see much more, the plaintiff said that there is 150 metres of fencing along the driveway which was built by a contractor as part of his plan to subdivide the property into paddocks to run sheep and alpaca.
35 The films were shown out of date order. I will summarise them in date order. The first film was taken on 16 August 2014. The relevant parts of the film are as follows:
·11.00am – the plaintiff was near the shed walking along the driveway towards his house. The pile of crushed rock was evident to the left side of the house. He was carrying a bucket in his right hand. The trampoline could be seen to the left side of the shed.
·11.07am – the plaintiff was on his haunches holding a bucket. He appeared to be either planting something or pouring something from the bucket. He pushed downwards with his right hand on the ground.
·11.10am – the plaintiff was again on his haunches undertaking the same activity just described.
·11.13am – the plaintiff made one of many trips walking slowly towards his house. He returned to a garden bed where he was seen at 11.07am. He used a manual hole digger to dig a hole. The manual hole digger has two long handles. Near its base are two spade shaped heads which are fixed together with a hinge. It is operated by the plaintiff driving the spade heads into the ground, closing the handles together, raising the spade heads from the ground and then opening the spade heads, which releases the soil captured within the spade heads. After digging a hole, he got down on his haunches, again with the bucket nearby. He appeared to be planting something, because he was pushing down soil with both hands. When he used the manual hole digger, he appeared to drive it into the ground for up to six times to dig a hole.
·The plaintiff undertook the same activity using the manual digger at 11.16am, 11.22am and 11.29am. He used it in the same manner described above.
36 The relevant parts of the film taken on 2 November 2014 are as follows:
·11.19am – the plaintiff was outside the shed using a Whipper Snipper. He held the upper end where the motor is fixed with his right hand and appeared to be holding onto the looped handle on the lower end of the shaft in his left hand. He operated the Whipper Snipper from 11.19am to about 11.51am. When he stopped using it, he transferred it to his right hand and walked off.
·There were other less relevant activities shown on the film from 11.51am to 12.15pm. He did not appear to use his left hand, but I did note that he appeared to favour his right hand.
37 In addition to being cross-examined about what is shown on the films, the plaintiff was cross-examined about a number of other matters by Mr Scanlon. In summary, he was cross-examined about the following relevant matters:
·He and his wife purchased the 20 acres of land ten years ago as an investment. They then built the house, shed and otherwise developed the property as their home. His stepson purchased 20 acres of adjacent land, which he later sold.
·The plaintiff, and to some extent with the assistance of his wife, developed the garden beds, and planted trees and other plants.
·The garden beds are supported by what Mr Scanlon described as “railway sleepers”. It later transpired that the plaintiff described them as “treated pine planks”. What I saw in the films shows that they are not railway sleepers, but treated pine planks. Mr Scanlon suggested to the plaintiff that railway sleepers weigh up to, and may be in excess of, 40 kilograms. The plaintiff denied that what he used weighed anything like that. He was unable to satisfactorily give a weight, but from what I saw, I would seriously doubt that the treated pine planks of 2.4 metres in length would weigh anything like 40 kilograms or more.
·The plaintiff purchased the treated pine planks and then transported them in his utility. When he arrived at the property, he unloaded them using his right arm.
·He erected a sandbox for his step-grandson. It is about 2.4 metres x 1.5 metres. He lifted and carried the treated pine planks using his right hand. He used a drill and coach bolts to fix the planks together, again, mostly using his right hand.
·He erected the trampoline shown in the films, mostly using his right hand.
·He admitted that he can use a chainsaw from time to time. He admitted that he can use a Whipper Snipper. He admitted that he has used and can use a wheelbarrow.
·He purchased a bird bath from Bendigo. It was placed into his utility by the seller. It was ceramic. It came in three parts: a basin, a pedestal and a base. When he arrived at his property, he unloaded the bird bath using his right hand and arm, and slid it off the utility.
38 The plaintiff was then re-examined by Mr Walters about the following relevant matters:
·The pile of crushed rock was purchased twelve months ago. He said that he could have spread it in a matter of weeks, but has not been able to do so.
·He is unable to lift the motorised post-hole digger.
·He wears a soft brace on his left elbow which is made of webbing and is fixed by Velcro. He wears it every day. He was wearing it when he gave his evidence during the trial. He said it provides his left elbow with support.
·What were described as railway sleepers were in fact treated pine planks.
·The manual hole digger was used in garden beds where the soil is soft.
·He is unable to effectively do weeding, pruning and caring for garden beds as he expected to before he was injured. He has a pile of soil, also on the property, which has been there for years though he has not been able to spread it over the property.
·Previously, he was able to work at a reasonable pace, but now he is forced to take his time when working on the property.
·If it had not been for his left elbow injury, he would still be working in his second job with the defendant.
·He would also have built the fencing on his property, continued building garden beds around the water tank, around the back of his house and planting a tree line along fences. He expected that by now, all of that would have been progressed, presumably toward completion.
39 I have looked for material differences between what the plaintiff deposed to in his affidavits and contained in the histories he gave to the likes of Mr Kierce, Mr O’Brien and Mr Jones, compared with what I saw on the films and was otherwise elicited during cross-examination. I have seen none, or so little as to be immaterial. The plaintiff appears to me to have given a candid account of what he has lost and what he has retained.
40 Mr Scanlon submitted that I should be cautious in accepting much of what the plaintiff has said about the grade of his pain and suffering consequences because, as Mr Scanlon put it, the plaintiff was “dancing with the cross-examiner”, meaning that the plaintiff did not always give responsive answers and appeared on the defensive. That was something which concerned me, because the plaintiff behaved a bit like the dour opening batsmen who took to the crease and blocked everything back to the bowler. Even so, there is little in what the plaintiff deposed to in his affidavits, his oral evidence and what I have seen in the films which suggests that he is not essentially creditworthy and reliable.
41 I now need to turn to another matter before determining what I find and whether the conclusions I reach upon those findings lead me to reason that the plaintiff should succeed or fail.
Peak Engineering & Anor v McKenzie
42 It became clear that the plaintiff has suffered pain in his neck and right shoulder. This appears to have also contributed to some of the pain and suffering consequences which he attributes to the impairment of function of his left upper limb. I will now summarise the relevant evidence to demonstrate what those conditions amount to and what the plaintiff said about them:
·In his affidavit sworn 19 March 2014, the plaintiff said that he developed problems in his right shoulder blade area after the occurrence of the incident; he continued to suffer pain in his right shoulder; his sleep was affected by his right shoulder, and that he avoided lying on his right shoulder.
·The plaintiff saw Dr Anderson in November 2012. The plaintiff told him that he was experiencing pain in his right upper back, which Dr Anderson described as being medial to his right shoulder blade. He considered that it was related to the altered use of the plaintiff’s upper back in compensation for his left elbow injury. Dr Anderson referred the plaintiff to have physiotherapy to his right shoulder and gave him cortisone injections.
·Mr Byrne treated the plaintiff for a condition affecting his right shoulder. He told Mr Byrne that he began suffering pain in his right shoulder after he was given a second blood injection. Mr Byrne saw the plaintiff specifically to treat his right shoulder on 13 December 2012. A CT scan failed to demonstrate any abnormality in the plaintiff’s right shoulder. Mr Byrne considered that the source of the right shoulder pain was related to the plaintiff’s thoracic spine and facet arthritis.
·The plaintiff told Mr Kierce that he was experiencing pain in the lower part of his right shoulder blade which was a constant pain aggravated by lying in bed for too long; lying on his back; sitting in his car and when he moved his right arm across his body, and that he would often get up three times a night because of discomfort in his neck and right shoulder blade. He also told Mr Kierce that undertaking manual work such as using a wheelbarrow and digging with a shovel would aggravate the pain. He also told Mr Kierce that he suffers from intermittent neck pain. On examination of the plaintiff’s neck and mid back, Mr Kierce found a mild degree of restriction of lateral flexion in the neck, and some tenderness over the medial border of the right scapula. He considered that the pain the plaintiff was experiencing in his right shoulder was due to constitutional degenerative arthritis in his mid-back.
·The plaintiff told Mr O’Brien that he was aware of pain in the vicinity of his right shoulder, and a continuing dead area over the posterior aspect of his right shoulder blade. He did not make any further significant reference to the plaintiff’s right shoulder. He did, however, refer to some mild signs of non-specific pain which he did not believe was related to any specific pathology.
·He told Mr Jones about his right shoulder and neck problems. Mr Jones described the plaintiff as having minor problems with his right shoulder. He did not examine the plaintiff’s right shoulder or his neck when he first saw him. When he saw the plaintiff on a second occasion, the plaintiff told him that he had constant pain in his right shoulder and the right side of his neck; that the pain was aggravated by sitting for sustained periods of time, by driving and occasionally it interfered with his sleep. The plaintiff also told Mr Jones that the pain in his right shoulder blade and neck came out of the blue after he received a blood injection. The plaintiff also told Mr Jones that he was having massage therapy for his right shoulder blade and neck, and also for his left elbow. After examining the plaintiff’s right shoulder, he considered that the pain in his right shoulder was most likely related to some degenerative changes affecting the adjacent thoracic spine, and a constitutional mild scoliosis. He could not find any pathology in the plaintiff’s neck.
·Although Mersyndol Forte was initially prescribed to treat the pain the plaintiff experiences in his left elbow, he does gain some benefit from its use for his right shoulder, and I infer also for his neck.
43 Under cross-examination in relation to his sleep pattern, the plaintiff said that when he gets up at night, it is predominantly because of left elbow pain, but when he wakes, he sometimes has pain in his neck and right shoulder. The pain in his right shoulder and neck have not forced him to get up at night.
44 Under cross-examination, in relation to the interference with his domestic activities, the plaintiff said that he suffers pain in his right shoulder, but he is able to tolerate it. He said that using a wheelbarrow and digging with a shovel can aggravate the pain he experiences in his right shoulder. He also said that he has constant symptoms in his right shoulder and the right side of his neck which can be aggravated by sitting for a period of time and driving a car.
45 Under re-examination, he said that if it had not been for his left elbow injury, he would still be working in his second job with the defendant. He would also have built the fencing on his property, continued building garden beds around the water tank, around the back of his house and planting a tree line along fences. He expected that by now, all of that would have been progressed.
46 The approach that I must take is to identify those consequences which have resulted from the plaintiff’s neck and right shoulder and exclude them from consideration when identifying the consequences which have resulted from the plaintiff’s left upper limb.
47 Mr Walters conceded that the interference with the plaintiff’s sleep is probably contributed to by the pain the plaintiff experiences in his neck and right shoulder. The question then is the degree to which the plaintiff’s left upper limb interferes with his sleep, and the degree to which his neck and right shoulder interfere with his sleep.
48 I am in no doubt that the plaintiff has suffered pain in his neck and right shoulder. I am in no doubt that the pain in his right shoulder was significant enough for him to seek treatment from Dr Anderson, and then from Mr Byrne. The treatment involved conservative management and a cortisone injection. I am also in no doubt that it interfered with the plaintiff’s sleep.
49 Although the Mersyndol Forte has a secondary beneficial effect in the reduction of pain which the plaintiff experiences in his right shoulder, it was prescribed to treat the pain which the plaintiff experiences in his left upper limb, and principally, his left elbow. The plaintiff said he had not been prescribed any painkilling medication for either his neck or his right shoulder previously. I accept his evidence in that regard. Therefore, had it not been for the occurrence of the injury to his left elbow and the impairment of the function of his left upper limb, he may not have been prescribed painkilling medication.
50 It would also appear that the pain the plaintiff experienced in his neck and right shoulder were well tolerated by the plaintiff. He began developing his property and was not hindered in that regard by the pain he was experiencing in his neck and right shoulder. Furthermore, he worked a second job with the defendant undertaking night fill. That involved transferring goods via a trolley which were then placed on supermarket shelving. It was a physical job done in addition to the work the plaintiff undertook with FMP. Taking all of these factors into consideration, it would appear that whilst the plaintiff was troubled by some pain in his neck and right shoulder, they did not incapacitate him to any material degree.
51 Therefore, I will exclude interference with the plaintiff’s sleep by reason of the pain the plaintiff experienced to his neck and right shoulder, the production of pain in his neck and right shoulder, and the modest degree to which both seem to interfere with his capacity to function generally. Otherwise, I am not satisfied that the pain in his neck and right shoulder interfered materially with any of his other social, domestic and recreational pursuits.
Findings
52 The plaintiff was a hardworking man who appears to me to have attacked life head-on. He worked two jobs which is, of itself, evidence of how hardworking he was. He intended to develop his property by doing the landscaping and fencing himself. He acquired all of the necessary equipment to do that, and I infer that he had the necessary skill to undertake that work.
53 The only matter which interfered with his attack on life was the occurrence of the injury to his left elbow and the consequent impairment of function of his left upper limb. I accept that he is creditworthy and reliable, even though I considered that the manner in which he gave his evidence was worthy of some comment.
54 I accept that he has suffered each of the consequences summarised above. I am not satisfied that the cross-examination of him and what I saw on the films is really any different from what the plaintiff admitted to in his affidavits and in the histories recorded by a number of medical practitioners who examined him.
55 Mr Scanlon submitted that the plaintiff is engaging in all of the social, domestic and recreational pursuits that he engaged in prior to the left elbow injury. He submitted that the loss of the second job with the defendant is neither here nor there, because the plaintiff and his wife had set upon a journey to retirement, and obvious changes were being made to their lives, which included a reduction in his work and increase in the enjoyment of their property.
56 I do not accept that the plaintiff is engaging in all the social, domestic and recreational pursuits as he was before he suffered the injury to his left elbow. The plaintiff has lost his second job. It is a major loss. It was the source of the additional monies which he contributed towards his superannuation. The loss of that cannot be underestimated. It amounts to a loss of a resource which he would have had at his disposal which would have enabled him and his wife to exact a better level of enjoyment of life in the future and during their retirement. It was between $170 to $180 a gross per week, which is not an insignificant sum for someone like the plaintiff.
57 Additionally, whilst the plaintiff is able to undertake the landscaping on his property, there are obvious aspects of it that he is unable to undertake. He is not able to construct fencing. He has not been able to spread the gravel and soil which have been sitting on his property for some time. He is less able in his use of the chainsaw; whipper snipper; spadework; posthole digger and in the use of the manual hole digger. These strike me as being significant losses for the plaintiff. He is the sort of man who deserves to be described as a stoic, and as a result, should not be penalised for trying to get back to activities of the kind I have just referred to.[3]
[3]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
58 I prefer the opinion of Mr Kierce, who considered that the plaintiff had suffered an injury of real significance. He considered that there was pathology at work in both the plaintiff’s left elbow and left shoulder, which resulted in overall impairment of the function of the plaintiff’s left upper limb. It is noteworthy that when he examined the plaintiff on a second occasion, he found a worsening of the condition of the plaintiff’s left elbow. The aspect of his opinion which I consider makes it more compelling than the opinion of Mr Jones is that he obtained a very full history of the activities which the plaintiff has returned to following the occurrence of the injury to his left elbow. Accordingly, Mr Kierce understood very well the extent to which the plaintiff had a residual capacity to function in a social, domestic and recreational sense. Despite that, he was nonetheless satisfied that the impairment of function had resulted in a major impact upon the plaintiff’s capacity to have the full, free and unrestricted use of his left upper limb.
59 Mr O’Brien’s opinion is reasonably consistent with that of Mr Kierce, which also fortifies me in accepting the opinion of Mr Kierce. Whilst Mr Jones made similar findings on examination to Mr Kierce and Mr O’Brien, he considered that the impairment of function of the plaintiff’s left upper limb to be modest to moderate, and certainly less than Mr Kierce and Mr O’Brien.
60 Lastly, the plaintiff’s wife, Kaye Frances Severino, swore an affidavit in which she confirmed the extent to which the plaintiff is incapacitated by the impairment of the function of his left upper limb. Her evidence further fortifies me in accepting the plaintiff’s evidence.
61 In the end, I am satisfied that the impairment of function as it has affected the plaintiff in the context of his life, has resulted in pain and suffering consequences which meet the statutory test of seriousness.
Orders
62 I propose to order that the plaintiff be given leave to bring a proceeding to recover damages for pain and suffering consequences.
- - -
0
2
0