Shaginian v Moran of Melbourne Pty Ltd
[2013] VCC 23
•25 January 2013 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-06220
| EDWARD SHAGINIAN | Plaintiff |
| v | |
| MORAN OF MELBOURNE PTY LTD (deregistered) | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 and 25 January 2013 | |
DATE OF JUDGMENT: | 25 January 2013 (Revised) | |
CASE MAY BE CITED AS: | Shaginian v Moran of Melbourne Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 23 | |
REASONS FOR JUDGMENTS
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury – injury to the right shoulder – pain and suffering –
identity of injury
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33; Dalton v
Dandenong Scaffolding Hire Company Pty Ltd [2003] VSCA 183; Angelatos v Museum of Victoria [1999] 3 VR 157; Kocak v Wingfoot Australian Partners & Ors [2012] VSCA 259; Ansett Australia Ltd v Taylor [2006] VSCA 171; Advanced Wire and Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards SC Ms K A Galpin | Zaparas Lawyers |
| For the Defendant | Mr N J Dunstan | Minter Ellison |
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HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, (“the Act”), for injury suffered by the plaintiff in the course of his employment with the defendant due to the nature of his employment in or about November and December 2002 and more particularly, on 3 December 2002. The injury is variously described, but particularly as a tear of the supraspinatus tendon and adhesive capsulitis (“the injury”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only. He brings this application pursuant to Clause (a) of the Definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning “a permanent or loss of a body function”. The body function relied upon in this application is the right shoulder.
3 The plaintiff relied on three affidavits and gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The outline of Section 134AB
4 The impairment of the body function must be permanent in the sense that it is likely to continue into the foreseeable future. The plaintiff bears an overall burden of proof upon the balance of probabilities. By ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of the hearing as being more than significant or marked and as being at least very considerable.
5 I am required to consider the consequences to this particular plaintiff viewed objectively arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function.[1]
[1]ss(38)(b) of the Act
6 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
7 As it appears to be common ground that the plaintiff has also suffered an injury to his back in 2006, I consider I am required to determine this application in the following manner. First, I am required to identify the injury suffered by the plaintiff in or about November or December of 2002.[2] Secondly, I should alienate the impairment consequences of the other injury referred to, particularly the back.[3] Thirdly, any other injury, the consequences of which, cannot be accumulated.[4] The subject injury has to satisfy the requirements of a serious injury in its own right rather than in combination with the other injury.
[2]Dalton v Dandenong Scaffolding Hire Company Pty Ltd [2003] VSCA 183
[3][2003] VSCA 183 at 14, 39, 47 and 49
[4]Angelatos v Museum of Victoria [1999] 3 VR 157 at paragraph [168]
8 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[5] in reaching my conclusions.
[5][2005] 14 VR 622
9 The defendant concedes that it accepted liability for organic injuries suffered in the course of employment, particularly on 3 December 2002, but does not concede that such injury meets the requirements of subparagraph (a) of the definition of “serious injury” referred to above.
10 Both parties agreed that this Court is bound by the Court of Appeal decision of Kocak v Wingfoot Australian Partners & Ors.[6] To this end, the plaintiff tendered in evidence a Medical Panel opinion dated 22 May 2012.[7]
[6][2012] VSCA 259
[7]Exhibit K
11 Relevantly, the questions and answers were as follows:
“Q1:What is the nature of the plaintiff’s current medical condition relevant to:
(A) Right shoulder?---
A: The Panel is of the opinion that the plaintiff is suffering from:
(A) Persisting right shoulder dysfunction following a rotator cuff injury complicated by adhesive capsulitis and a consequential adjustment disorder with depressed mood … .
Q2:Does the plaintiff’s medical condition enquired of in Question 1 result from or is it materially contributed to by the said injury to:
(A)Right shoulder?---
A: The Panel is of the opinion that the plaintiff’s:
(A) persisting right shoulder dysfunction following a rotator cuff injury complicated by adhesive capsulitis and a consequential adjustment disorder with depressed mood.
Q3:Was the plaintiff’s employment in or about November and December 2002 in fact a significant contributing factor to any and if so which of the said injuries?---
A:The Panel is of the opinion that the plaintiff’s employment in or about November and December 2002 was in fact a significant contributing factor to the plaintiff’s persisting right shoulder dysfunction following a rotator cuff injury complicated by adhesive capsulitis and a consequential adjustment disorder with depressed mood and left groin dysfunction following a left inguinal hernia (surgically treated).
Q4: Does the plaintiff have:
(A) a current work capacity; or
(B) no current work capacity?---
A:(A) The Panel is of the opinion that the plaintiff does not have a current work capacity.
(B) The Panel is of the opinion that the plaintiff has no current work capacity.
Q5:If applicable, what employment would or would not constitute suitable employment?---
A: Not applicable.
Q6: If applicable, whether the plaintiff’s incapacity for work if any:
(A) resulted from or was material contributed to by;
(B) results from or is materially contributed to by; any, and if so, which of the said injuries?---
A:The Panel is of the opinion that the plaintiff’s incapacity for work resulted from and is still materially contributed to by the plaintiff’s persisting right shoulder dysfunction following a rotator cuff injury complicated by adhesive capsulitis.
Q7:If yes to Question 3 hereof, is the provision to the plaintiff of right shoulder subacromial decompression, manipulation under anaesthetic and debridement appropriate treatment for any, and if so, which of the said injuries?---
A:The Panel is of the opinion that the provision to the plaintiff of right shoulder subacromial decompression, manipulation under anaesthetic and debridement is an appropriate treatment for the plaintiff’s persisting right shoulder dysfunction following a rotator cuff injury complicated by adhesive capsulitis.”
12 As already indicated, the date of the opinion is 21 May 2012.
13 In discussion with counsel for the defendant, it was conceded that there was no evidence which shows any material change from the matters set out on 21 May 2012 up until the present time.
14 Counsel for the defendant argues that the Medical Panel answers do not deal finally with the question of “permanency” as required by the legislation.
15 On 13 March 2009, the plaintiff made a claim for permanent impairment benefits pursuant to s98C of the Act with respect to, inter alia, a right shoulder injury.
16 By way of response to that application dated 22 April 2009,[8] the defendant’s insurer, QBE, acknowledged receipt of the Claim for Compensation pursuant to s98C for, inter alia, a right shoulder injury. The response indicated: “liability is accepted for the following injuries claimed: right shoulder”.
[8]Exhibit L
17 Further in the notice, under the heading “Determination of Impairment”, the insurer noted, “The degree of permanent impairment you suffer, if any, as a result of the accepted injuries has been determined by the Victorian WorkCover as follows:
“Physical impairment
You have been determined as suffering a combined whole person physical impairment of 19 per cent after taking into account assessments undertaken in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment 4th Edition.”
18 The evidence does not disclose what percentage of the 19 per cent was attributable to the right shoulder injury other than the right shoulder injury was accepted for liability for a degree of permanent impairment.
19 The plaintiff relies on the principle set out by Ashley JA in Ansett Australia Ltd v Taylor[9] to the effect that the admission is probative with respect to permanency, although does not amount to an estoppel.
[9][2006] VSCA 171 at paragraph [40]
20 The plaintiff, for his own part, has given evidence that he received treatment by way of physiotherapy and injections into his shoulder in 2003 on account of the subject injury. He has also given evidence that he received treatment from the first aid section of his employer thereafter, up until he ceased work some time in 2006. He received medications such as Panadeine Forte and also gel, for which he had to acknowledge, by way of his signature, each time he received same.
21 Insofar as permanency of the impairment is still at large following the Medical Panel decision, I am satisfied that there has been no improvement in the condition since the assessment by the Medical Panel and that the sum total of the medical evidence is to the effect that there is unlikely to be any significant improvement in the future.
22 Counsel for the defendant was invited to cite any evidence which contradicted this position but conceded fairly he was unable to do so.
23 Once the status of permanency has been assessed, it was conceded by counsel for the defendant that the principles outlined in Advanced Wire and Cable Pty Ltd & Anor v Abdulle[10] apply. Therein, the Court of Appeal concluded that a plain reading of s134AB of the Act permits the interpretation that once the plaintiff has established a threshold claim for loss of earning capacity he is entitled to also a finding for pain and suffering.
[10][2009] VSCA 170 at paragraphs [63] and [64]
24 Therein, at paragraph 64, the Court further stated:
“… However, if it was necessary to consider whether the respondent has established the pain and suffering required by s 134AB(38), then we would conclude that he has done so on the basis that the pain and restrictions that have so seriously affected his earning capacity can also fairly be described as being at least very considerable in pain and suffering terms when making the necessary comparison with other cases in the range of possible impairments.”
25 Therefore, following on from the Medical Panel’s finding of no current work capacity, to which the subject injury has materially contributed, and the finding of the permanency of that particular situation, must also mean that this plaintiff’s earning capacity has been so seriously affected that the consequences of the injury can be described as being “at least very considerable” in pain and suffering terms when making the necessary comparison with other cases in the range of possible impairments.
26 In case I am wrong in my analysis of the consequences of the Medical Panel findings, I am nonetheless satisfied that the plaintiff has established the threshold for pain and suffering by reference to first principles. I accept the plaintiff’s evidence that he suffered from pain and restriction of movement in the right shoulder from 2003 onwards. I accept that he complained of shoulder pain from time to time to his own treating practitioners and those at his workplace, and accepted the advice that it was a strain and it would get better. I accept that the plaintiff is a stoic individual and remained at work for as long as he could in all the circumstances.
27 This analysis is, of course, to be contrasted with the submission by counsel for the defendant that in a number of medical reports, particularly in Exhibits 5, 6, 7 and 8, that the plaintiff apparently made no relevant complaint to medico-legal practitioners when being assessed for his back injury.
28 There is some force in this submission but, as already indicated, the plaintiff has been cross-examined on this issue and I accept his account of the continuation of symptoms from 2003 onwards. I should point out that this is consistent with the finding of the Medical Panel already referred to and also, in essence, virtually every medical practitioner who has examined him from time to time.
29 I accept that the plaintiff requires ongoing medication in the form of Tramal, Panadeine Forte or Di-Gesic, and occasionally Mobic. I accept that his past treatments have included hydrodilatation of the right shoulder and episodes of physiotherapy. I accept his account in the witness box that he has a severe limitation of movement of the right arm, restricted by pain. I also note that this is consistent with the examination findings of the medical practitioners referred to.
30 Further, the plaintiff gave evidence that he is still in receipt of weekly payments of compensation in respect of his right shoulder injury at the rate for no current work capacity, which evidence was not challenged.
31 I do not propose to relate chapter and verse of the complaints the plaintiff made in his three affidavits other than to state in a general sense that I accept his evidence of the effect the injury has had on his life, coupled with the findings of the Medical Panel, such that I consider he has affirmatively satisfied me that he has sustained a “serious injury” within the meaning of s134AB entitling him to obtain leave to commence a proceeding for pain and suffering damages.
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