Sizenko v SVS Interiors Pty Ltd and WorkSafe Victoria
[2010] VCC 1643
•22 October 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-05611
| SERGEY SIZENKO | Plaintiff |
| v | |
| SVS INTERIORS PTY LTD | First Defendant |
| (Deregistered) | |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6, 7 and 8 October 2010 |
| DATE OF JUDGMENT: | 22 October 2010 |
| CASE MAY BE CITED AS: | Sizenko v SVS Interiors Pty Ltd and WorkSafe Victoria |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1643 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – S.134AB Accident Compensation Act 1985 – injury to right shoulder – injury to lumbar spine – aggregation of consequences from various incidents and injuries – credit of the plaintiff – whether consequences “very considerable”.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R H Smith SC with | Nowicki Carbone & Co |
| Mr I D McDonald | ||
| For the Defendants | Mr G A Lewis SC with | Herbert Geer |
| Mr P J Gates | ||
| HIS HONOUR: |
Preliminary
1 The plaintiff suffered an injury to his right shoulder in the course of his employment as a plasterer in May 2002. Further, in November 2004, again in the course of his employment, he fell, injuring his lower back. In January 2006, he slipped from a trestle while undertaking his plastering work and aggravated the injuries both to his right shoulder and lower back. After the last incident, he ceased work as a plasterer and subsequently commenced work as a solicitor, he having gained qualification in 2007.
2 The plaintiff claims that as a result principally of the 2006 incident, the injuries both to his shoulder and lower spine have led to a range of consequences which meet the “very considerable” level in respect of pain and suffering.
3 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment on 14 November 2004 and 4 January 2006.
4 Mr Smith, on behalf of the plaintiff, identified the body function said to be lost or impaired as the right shoulder; alternatively, the lower spine. The application is thus brought under sub-section (a) of the definition of “serious injury” contained in s.134AB(37) of the Act and leave is sought in respect of pain and suffering only.
5 In order to succeed, the plaintiff must prove, the onus being upon him, that the consequences emanating from the loss or impairment of either the right shoulder, on the one hand, or the lower spine, on the other, are at least “very considerable” and more than “significant” or “marked”.
6 I must consider the consequences to this particular plaintiff, viewed objectively, arising from the injuries. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of body functions.
7 The plaintiff was the only witness called to give evidence and be cross- examined. In addition, medical and radiological reports, various affidavits in support, clinical notes and various correspondences were tendered in evidence. I have read all the tendered material.
Relevant Background
8 The plaintiff was born in 1970 in Russia and is now forty-years-of-age. He was educated in Russia, where he trained as a lawyer. He migrated to Australia in 1999, leaving behind his family, including a daughter.
9 When he came to Australia in 1999, he married his first wife, Ms Tolkatcheva. They separated in 2002. He met his second wife, Tamara Sizenko, in 2003. She came to live in Australia in August 2005. They married in January 2006, and have a daughter, now three years of age.
10 His legal qualification was not recognised in Australia, and he commenced work as a plasterer for “Basil’s Plastering”. In early 2000, at the behest of his employer, he incorporated a company, SVS Interiors Pty Ltd, and in effect became a sub-contractor for Basil’s Plastering. He and his father (then in Russia) were the directors. In addition to work for Basil’s Plastering, he did work for a number of other building companies.
11 Prior to 2002, he was in good health and enjoyed a range of recreational and sporting activities. He had a punching bag at home and regularly boxed. He enjoyed social tennis and karate and claims to have participated in skiing, horse riding and cycling.
12 He was a capable handyman and did maintenance and building work at home.
13 On 15 May 2002, he fell from a trestle and suffered a dislocation of his right shoulder (“the first incident”). He was taken to the Emergency Department of the Sunshine Hospital and his shoulder was placed in a sling for a number of weeks. He was away from full-time plastering duties for approximately two months although continued to administer the business
14 After returning to work, the plaintiff said he was able to cope with the physical demands of the job reasonably well although had some pain in the right shoulder over the ensuing years. He said he undertook less demanding jobs. According to an extract from his then general practitioner’s clinical notes,[1] it was his intention to make a claim upon WorkCover for the first incident. He did, however, return to full-time plastering work within several weeks, and maintained that employment until November 2004.
[1] Exhibit 1
15 In 2002 or 2003, the plaintiff undertook an accounting course over a period of twelve months. This was to gain an understanding of accounting as it related to the operation of small businesses.
16 Over the years from 2000 to 2005, his father came from Russia to Australia on a number of occasions. In 2003, he applied for a visa, but was rejected. His father obtained permanent residency status in approximately May 2005.
17 According to the plaintiff’s affidavit in support of the application,[2] he claimed his father, Victor Sizenko, as a director of SVS Interiors, was “in control of the company … Victor was also responsible for setting up a system of work which I was instructed to follow”. While the affidavit was unclear as to when it was alleged Mr Sizenko Senior came to control the company, in evidence, the plaintiff said that it was after he came to Australia in May 2005. This claim stands in stark contrast to correspondence by the plaintiff to the WorkCover insurer, CGU,[3] where he claimed his father was a “plasterer’s apprentice”. Further, it is difficult to understand how it could be claimed the plaintiff’s father was in control of the company and responsible for setting up the system of work when he had only just arrived from Russia. In my view, this part of the affidavit was an attempt by the plaintiff to establish a basis for a common law claim for damages in negligence. That is, that it was not his responsibility for the establishment of the system of work which subsequently led to injury, but rather his father’s. For reasons which I shall subsequently give, in my view, this claim is unfounded, and reflects upon the plaintiff’s credit.
[2] Plaintiff’s Court Book (“PCB”) 11
[3] Defendant’s Court Book (“DCB”) 63
18 In 2004, the plaintiff made enquiries as to the prospect of undertaking a law course in Australia and returning to work as a lawyer. This was prior to the injury of November 2004. Over the years 2005 to 2007, he undertook and completed his law degree at Deakin University and qualified as a legal practitioner in Australia.
19 Save as to the injury to his right shoulder in the first incident, the plaintiff was otherwise well and suffered no medical problems of any significance.
The Injuries and their Consequences
20 On 14 November 2004, the plaintiff was involved in plastering the bathroom of a house. He claims he had to work in a confined and awkward position and in lifting a heavy piece of plaster from the floor and twisting to fix it into position, he felt the sudden onset of acute pain in his lower back (“the second incident”). He ceased work and drove to the Corio Medical Centre where he was examined, and a CT scan of his lumbar spine taken[4] showed a mild disc bulge at L5-S1 without neurological compromise. The plaintiff returned to work a few weeks later.
[4] PCB 53
21 On 4 January 2006, the plaintiff was again working on plastering a ceiling of a house. He was walking along trestles which he claimed were placed by his father, and put his foot through a gap between two trestles. He fell, striking his right arm and elbow on a mantelpiece. As a result, his right shoulder became dislocated. He also aggravated the injury to his lower back. He claimed the pain was excruciating and his father assisted him in placing his shoulder back into its socket (“the third incident”).
22 After the third incident, the plaintiff saw his then general practitioner, Dr Stekelenburg, at the Geelong West Medical Centre. He was referred to Mr Brown, orthopaedic surgeon, in March 2006.[5] Mr Brown considered there may have been some internal derangement of the plaintiff’s shoulder and arranged an MRI scan[6] which showed degeneration in the superior labrum, but, according to the report, without labral tearing. There was further low- grade tendinopathy at the infraspinatus tendon and early glenohumeral joint arthropathy. Mr Brown noted no true lesion nor rotator cuff pathology.[7] He referred the plaintiff for physiotherapy.
[5] PCB 63
[6] PCB 54
[7] PCB 64
23 Over the years, the plaintiff has been treated by a number of physiotherapists.[8] All have treated him for both the right shoulder and lower back injuries. In addition to the physiotherapy, he has also undertaken massage and Pilates, and more recently, acupuncture. He has been involved in various gymnasium programs and at the present time attends Dr Ken Chzou, an acupuncture practitioner in Melbourne.
[8] Mr Jarman - PCB 64; Mr Licastro - PCB 65, PCB 67; Mr McLeod - PCB 77 and following.
24 In approximately November 2006, the plaintiff began to see Dr Deen Shirzada, general practitioner, at the Westgate Medical Centre. He referred the plaintiff for physiotherapy treatment with Mr Licastro.
25 In February 2007, Dr Shirzada referred the plaintiff to Mr Michael Dooley, orthopaedic surgeon, in relation to his right shoulder injury and the ongoing symptoms of pain. He first saw Mr Dooley in March 2007.[9] Mr Dooley noted that the right shoulder had been dislocated on two occasions and that subsequent to the third incident, the plaintiff had complained of “the arm feeling funny and numb at times”. Mr Dooley considered these were probably episodes of subluxation. Mr Dooley considered the plaintiff might require surgical intervention and referred him to Mr Shane Barwood, an orthopaedic specialist with a particular interest in the shoulder.
[9] PCB 66
26 The plaintiff first saw Mr Barwood in May 2007 and received a history of two dislocations of the shoulder, the first in December 2004,[10] and the second in 2006.[11] When he examined the plaintiff, Mr Barwood thought there were clinical signs of a tear of the superior labrum. He thought there was evidence from the MRI of April 2006[12] of such a tear and considered the report was in error. He said tear seen on the MRI picture fitted the clinical examination. He felt that the tear was likely to have occurred during one of the episodes of dislocation and was thus work-related. The plaintiff was unable to work as a plasterer and suggested he undergo an arthroscopy to repair the tear and to evaluate the superior labrum. There was also the prospect that the biceps area may require some form of surgical treatment.
[10] This appears to be a mistake, and should be May 2002
[11] PCB 70
[12] PCB 54
27 Mr Barwood sought and received approval for arthroscopic surgery from the WorkCover insurer, but given he was not provided with any guarantee of success, the plaintiff decided not to proceed with such surgery.
28 By 2007, the plaintiff then retained another general practitioner, Dr Harsha Dias, of the Wyndham Village Medical Centre. These various changes of general practitioners were mostly related to the plaintiff’s change of residential address. Dr Dias has treated him through to the present time both for the injury to his right shoulder, and lower spine.[13] He received initially a history of ongoing lower back pain, varying according to the extent of the activities that he was involved in, but that the plaintiff was always in some degree of pain. Dr Dias considered the plaintiff’s back pain as permanent and that he had no prospect for return to pre-injury employment in heavy manual work because of it. In relation to the right shoulder, Dr Dias noted some pain depending upon the movement of the shoulder and he noted extensive physiotherapy treatment. He considered the right shoulder injury as stable and permanent, but likely to progress. He said the plaintiff was not able to perform his pre- injury duties because of the right shoulder and not able to work with his shoulder abducted, and with his arm above his head. He was able to work full-time in lighter duties.
[13] PCB 94-95
29 In November 2007, Dr Dias referred the plaintiff to Mr de la Harpe, orthopaedic surgeon.[14] This referral was for the plaintiff’s ongoing back pain. He received a history at that time of ongoing pain in the plaintiff’s back, with referred pain to the right buttock as a result of the second incident, aggravated in the third incident. He noted the plaintiff was doing light gym work and was taking no prescription medication, but rather was using natural remedies, including Glucosamine tablets. He arranged an MRI scan of the lumbar spine[15] which showed degenerative change at the L5-S1 disc, including a broadbased disc bulge and with loss of height, Modic endplate and an annular tear, but without neural compression. He considered the plaintiff was functioning too well for him to be considered for fusion surgery. Mr de la Harpe recommended ongoing physiotherapy, and he was at that point referred to Mr McLeod. He undertook an eight-week functional restoration program[16] where, upon completion, the plaintiff reported feeling stronger, although it was noted that his shoulder was prone to flare-ups with heavier lifting.[17] He remained under the care of Mr McLeod until approximately September 2009 when the WorkCover insurer ceased funding the treatment.
[14] PCB 76
[15] PCB 57
[16] PCB 77 and following
[17] PCB 81
30 In late 2009/early 2010, Dr Dias referred the plaintiff to Mr Peter Moran, orthopaedic surgeon, in respect of his right shoulder injury.[18] Mr Moran received a history of dislocations in 2002 and 2006. After the first incident, the plaintiff said that he had his shoulder in a sling for several days and then returned to work without further treatment. The major problem, according to the plaintiff, was discomfort with activity and recurrent minor episodes of subluxation as a result of heavy work. He noted a full range of shoulder movements and, after Mr Moran obtained a further MRI scan,[19] there was evidence of an extensive superior and postero-superior labral tear. Mr Moran concluded that because the shoulder was stable, there was no indication to repair the labral tear. He said that if the plaintiff was to return to more vigorous activities, then the shoulder would require surgical stabilisation by arthroscopy.
[18] PCB 88-89
[19] PCB 59
31 Also, in December 2009, the plaintiff was referred to Dr Brian Lovell at the Metro Spinal Clinic.[20] Dr Lovell considered the plaintiff was suffering from lower back pain arising from the facet joints. He suggested diagnostic medial branch blocks. These were undertaken on 3 and 17 February 2010. The blocks were found to be positive and Dr Lovell was of the opinion that this indicated with “80 to 90 per cent confidence” that the source of the pain was the facet joints of the lower spine. He thought the second incident was the main cause of the low-back pain, with exacerbation in the third incident. He suggested radio-frequency neurotomy with repeat treatments over the years each twelve to eighteen months. Approval was given by the WorkCover insurer for this treatment, although the plaintiff has not proceeded with it. He is reluctant to undergo any surgery and prefers conservative and natural treatments. In evidence, he conceded that he was still considering the neurotomy treatment, but the pain at the present time was not such as to force him to have it.
[20] PCB 87
32 Dr Lovell considered the plaintiff’s lower back injury affected his capacity to be involved in social, domestic and recreational activities and would affect his capacity to sit for long periods of time. In combination with his shoulder injury, the low-back injury contributed to a total disability to undertake heavier aspects of work around the house, and other sporting and recreational activities. He considered the plaintiff’s lower back pain as significant and impacting upon his family, work, social and recreational life. He said the pain was likely to be long-term.
33 At the present time, the plaintiff remains under the care of Dr Dias, and attends regularly for acupuncture. He does not now, nor has ever taken prescription pain-relieving medication. He takes over-the-counter Panadol from time to time, and natural remedies, including Glucosamine and fish oil. He attends a gymnasium regularly, principally for the sauna and hydrotherapy.
34 He states[21] that since the third incident, he has had ongoing pain in the right shoulder such as to make it difficult for him to sleep. He is right hand dominant. The pain becomes aggravated with lifting, and in particular, with work above shoulder height. He has further continued since the third incident to suffer pain in his lower back, referred occasionally to the right buttock. He says this makes it difficult for him to sit in a car or drive for extended periods. The injury to his right shoulder makes it difficult for him to grip the steering wheel. Standing for any length of time produces low-back pain. He claims that his recreational and family activities have been significantly affected. He stated:[22]
“I also find that it is difficult to carry my three-year-old daughter in my arms because it causes a flare-up of the pain in my right shoulder and back. The pain is particularly bad if I attempt to place her into or take her out of the child seat in the back of our car. Because she is so young, it is difficult for me to explain to her why I often do not hold her, and it upsets me to say ‘no’ when she wants to be held.”
[21] PCB 33 – paragraph 39
[22] PCB 34 – paragraph 43
35 He said renovation and maintenance work around the family home which he had undertaken over the years 2001 to 2005 had been curtailed. Over those years he claims to have undertaken plastering work, removal of carpet, laying of tiles and repainting. He stated that he purchased and renovated a number of investment properties over that period. Since the third incident, he has been unable to do that type of physical work because of his right shoulder and back pain. He has undertaken some minor work, but this has resulted in flare- ups. Work at the family’s home has been halted, including completion of decking, rendering of the outside of the premises and the completion of a pergola. The pain in his right shoulder and back has limited an interest in modern dancing. He feels that the pain and restriction of movement in his right shoulder and back limit him and his wife’s desire to have another child.
36 Shortly after the third incident, he ceased work as a plasterer. The business was maintained, as there were a number of employees able to do the physical work and he undertook a range of administrative tasks, including rendering of accounts and collection of outstanding fees. He claims that since the third incident, any physical plastering work ceased completely.
37 As stated, the plaintiff completed a law degree by 2007. He was admitted to practice in December 2007.
38 In February 2008, he commenced work with Nowicki Carbone, lawyers, and works as a specialist in the legal costs department. While the majority of his duties are sedentary, he has required an ergonomically designed chair and writing board. Lifting of large boxes containing files is difficult and he has to regularly rest. He claims to be tired at the end of a working week. While there are difficulties with some aspects of his employment, he expects to be able to undertake the duties into the foreseeable future. He says that there have been some disruptions within Nowicki Carbone and there is the prospect that he will not be able to maintain employment there. He states that if this was to occur, his options are limited as he would be unable to return to manual work.
39 By her affidavit sworn 3 September 2010, the plaintiff’s wife, Tamara Sizenko,[23] generally supported the evidence of her husband as to the effect upon him of the injury to his right shoulder and lower back, and as to the consequences of those injuries.
[23] PCB 37-40
40 By her affidavit sworn 6 September 2010, Ms Kim Grech, a law clerk and co- worker of the plaintiff, referred to the difficulties the plaintiff encountered in attempting to lift heavy items such as boxes of files in the course of his present employment. She noted the plaintiff took leave to attend medical appointments from time to time.
41 In his affidavit sworn 8 September 2010, Mr Alan Thompson, a director of Blackstone Legal Costing, noted that he supervised the work of the plaintiff and saw the pain he encountered and the difficulty with the use of the plaintiff’s right arm. He deposed it was difficult for the plaintiff to lift items containing boxes of files and to take that work home with him.
Medical Evidence
42 I have referred to the opinion of the various treating doctors who have examined the plaintiff.
43 In relation to the consultant practitioners, the plaintiff was examined by Mr Russell Miller, orthopaedic surgeon, on behalf of his solicitors on 5 July 2010.[24] He received a history of the three incidents and their sequelae. At the time of his examination, the plaintiff complained of low-back pain and discomfort radiating into the right buttock and restriction, particularly in bending and lifting. The plaintiff also complained of problems with pain and discomfort in his right shoulder, particularly with repetitive and overhead activities. He considered the plaintiff had suffered a musculo-ligamentous strain to the lumbar spine with aggravation of the pre-existing degenerative disease and probable disc injury at L4-5 and L5-S1. Mr Miller noted a poor response to conservative treatment. In relation to the right shoulder, he considered the pathology as significant, with a labral tear and a degree of capsulitis. The prognosis, he said, was only fair. He thought the right shoulder injury related to the incidents of 2002 and 2006 and the lumbar spine to the incidents of 2004 and 2006. He thought the third incident, of January 2006, was the dominant factor in the evolution of both the right shoulder and lumbar spine problems. He considered the plaintiff was not fit to return to work which involved repetitive bending or repeated lifting. Because of the right shoulder alone, he could not perform repetitive arm actions or use the arm above shoulder height. He thought return to work as a plasterer was not possible.
[24] PCB 96-104
44 The plaintiff was examined by Dr Castle, occupational physician, in July 2010.[25] Dr Castle received a history of the three incidents and the injuries sustained. At the time of examination, the plaintiff complained of pain in the right side of his back. He said his shoulder was painful and worse on rotation. Dr Castle noted wasting of the suprascapular, swelling of the deltoid and loss of reflexes. He noted restricted movement in the right shoulder. He considered the plaintiff had suffered a labral tear to the shoulder with rotator cuff syndrome. He said the plaintiff’s back pain was an aggravation of an underlying degenerative disease in the lower spine. He considered that from a physical perspective alone the plaintiff had no capacity to work as a plasterer. He continued to have significant pain in the right shoulder and restriction of movement. He said it would be impossible for the plaintiff to work as a plasterer in these circumstances, particularly in relation to holding of sheets of plaster and other activities requiring the use of the right arm. He considered the plaintiff had no capacity to do any manual work either because of his right shoulder or back injury, each considered separately. He thought the plaintiff had an exceptional motivation for work.
[25] PCB 105-114
45 On behalf of the defendants, the plaintiff was examined by Dr Gary Davison, occupational physician, in December 2007[26] and May 2010.[27] On each occasion, the plaintiff complained of right shoulder pain, described as being a “dull heavy pain”, aggravated by the use of the right shoulder away from the body. The plaintiff described difficulty using the right arm above head height and any repeated or excessive physical activity involving the right arm. He described persisting pain in the lower back which had increased from early 2010. Dr Davison noted the plaintiff self-managed both conditions. He concluded there was clinical evidence of ongoing impairment of the right shoulder following the dislocations in the first and third incidents. He said the MRI examination revealed labral tearing which he thought probably occurred at the time of “the dislocation”. He could not find a clinical cause for the low- back symptoms but thought they originated from the right sacroiliac joint, or possibly the facet joints, an intervertebral disc, or even chronic musculoligamentous lesions. He thought both conditions reduced the plaintiff’s capacity for work. He said the right shoulder injury was likely to be permanent and that any employment would be restricted in:
[26] PCB 115-119
[27] PCB 119a-119g
• the use of the right arm above chest height • forceful pushing or pulling of the right arm away from the body • prolonged postures • repetitive bending or twisting • work that was not self-paced. 46 He thought there was no treatment required for the right shoulder.
47 The plaintiff was examined by Mr Paul Kierce, orthopaedic surgeon, in November 2008 and May 2010.[28] In the latter assessment, the plaintiff complained of a painful right shoulder which made it difficult for him to lie on the right side in bed. The plaintiff complained of restriction in a range of domestic duties and was unable to do maintenance at home as he had previously enjoyed. Mr Kierce noted definite wasting of the right shoulder girdle muscles.[29] He considered the plaintiff had aggravated lumbosacral disc degenerative disease in the workplace incidents and also suffered post- traumatic stiffness of the right shoulder. He thought the plaintiff was likely to suffer recurrent low-back pain and would have to modify his activities to avoid prolonged or frequent bending, lifting weights over 15 kilograms, and other heavy work. Insofar as his right shoulder was concerned, he thought the plaintiff had permanent restriction of right shoulder movements with the risk of recurrent dislocations of the right shoulder as it was now more susceptible to injury. He noted the plaintiff had first dislocated his shoulder in the first incident. He should not be lifting weights of more than 5 kilograms with the right arm, nor use the arm above shoulder level, nor be involved in work which required him to pull or push the shoulder.
[28] PCB 120, PCB 145
[29] PCB 149
48 Finally, the plaintiff was examined by Dr Ralph Poppenbeek, occupational physician, on behalf of the defendants in September 2009 and September 2010.[30] In the most recent attendance, the plaintiff complained of anterior right shoulder pain which caused restriction on activities, particularly lifting using the right arm. He further complained of low-back pain. The pain in the right shoulder made work activities, including the lifting of boxes difficult. He noted diminished deltoid muscle tone of the right shoulder on examination. He was not convinced there was significant muscle wasting. He accepted the MRI of January 2010[31] reported extensive superior and posterior-superior labral tear, being a Type II in nature. However, notwithstanding the radiology, Dr Poppenbeek considered that clinically there was only minor restriction of function in the right shoulder. He thought the back condition was an aggravation of the underlying pre-existing degenerative disease. He described the complaints of pain and restriction to the plaintiff’s back injury as being out of proportion from what might be expected of the physical nature of the injury. He did not think the plaintiff could return to work as a plasterer, mainly because of the right shoulder injury.
[30] PCB 131-144
[31] PCB 59
Conclusions from the Medical Evidence
49 It is clear the plaintiff suffered injuries in the three incidents. In the first incident, he dislocated his right shoulder. It is significant that after little treatment he was able to return to his plastering duties, and work on a full- time basis, albeit with some ongoing pain. He accepted in cross-examination that for a period of some months, the shoulder was strapped and that he still suffered pain in the shoulder at the time of the second and third incidents. He agreed that he would have to take care in relation to the movement and use of the shoulder after the first incident.
50 In the second incident, the plaintiff injured his spine. That was generally described by most practitioners as an aggravation of an underlying degenerative disease. It is probable the source of the pain was and is the facet joints in the lower spine given the positive response found by Dr Lovell to the medial branch blocks undertaken in February 2010.
51 Finally, the plaintiff suffered a further dislocation of his right shoulder in the third incident, and an aggravation of the lower back pain.
52 Despite the opinion of Mr Brown, the first orthopaedic surgeon the plaintiff consulted, and the initial MRI scan of April 2006, it is clear the plaintiff had suffered a significant labral tear to the shoulder. This is the opinion of most of the specialists who have examined the plaintiff, with the exception of Mr Brown. In particular, Mr Barwood was of the view that the MRI scan did show a labral tear and that that fitted with the clinical picture. The tear was evident from the MRI scan of January 2010.
53 The damage to the plaintiff’s right shoulder was sufficient to, in the opinion of Mr Barwood, require arthroscopic examination and repair, although the plaintiff determined not to proceed with this surgery. The more recent opinion of Mr Moran was that given the shoulder is now clinically stable, there is no indication for surgical repair. A number of the practitioners also described the plaintiff as suffering a rotator cuff syndrome[32] and anterior instability of the right shoulder[33] and post-traumatic stiffness.[34] Many referred to the right shoulder being more susceptible to recurrent dislocation. A number of the practitioners further recorded muscle wasting or reduced musculature in the right shoulder, as a result of reduction in use of the right limb.
[32] Dr Cassell – PCB 110
[33] Mr Kierce – PCB 126
[34] Mr Kierce – PCB 151
54 Various of the practitioners referred to the contribution of each of the first and third incidents to the right shoulder injury, but there was no comprehensive analysis as to which was the principal cause of the labral tear, and subsequent pain and restriction. I am unable to determine from the medical evidence which of the dislocations was responsible for the tear. However, in my view, it is significant that after the first incident, the plaintiff was able to resume full-time work as a plasterer, and maintain that employment until 2006 when the third incident occurred.
55 I am not critical of the plaintiff for a failure to undergo an arthroscopic investigation of the right shoulder, given the lack of guarantees provided as to the success of outcome, and the plaintiff’s preference for alternative or natural treatment.
56 There is almost complete uniformity amongst the medical practitioners that from the perspective of his right shoulder injury alone, he would be able to return to work as a plasterer, and further, that any work would be restricted as to the lifting of weights above 5 kilograms, and the repetitive use of the right shoulder, particularly at or above shoulder level. As a result, the plaintiff would not be able to return to any form of manual employment.
57 I accept, however, that through re-training, the plaintiff has qualified as an Australian lawyer and is able to work full-time in that capacity, albeit with some difficulty lifting containers of heavier files.
The Credibility of the Plaintiff
58 A significant attack was made upon the plaintiff’s credit by Mr Lewis. He cited the following credit issues:
(a)
By paragraph 11 of the plaintiff’s first affidavit,[35] the plaintiff falsely stated that his father was in control of SVS Interiors, and responsible for the implementation of the system of work which resulted in the plaintiff’s fall in the third incident. The plaintiff admitted in cross-examination that he had received advice as to the prospects of succeeding in a common law claim. Further, I assess the plaintiff as an intelligent person capable of understanding the statements made in the affidavit. I accept Mr Lewis’ submission that paragraph 11 of the affidavit is untrue and does affect the plaintiff’s credibility.
(b)
Mr Lewis was critical of histories given by the plaintiff to Mr de la Harpe and Mr Miller[36] that he ceased work as a plasterer immediately after the third incident. Mr Lewis submitted that the reality of the situation was that he remained working for a significant period thereafter. I accept that the plaintiff did remain working, although in an administrative capacity and attending to the recovery of outstanding fees. I do not consider this as any significant credit issue.
(c)
Mr Lewis submitted that the dislocation of his right shoulder in the third incident, and the alleged pain suffered immediately, stood in stark contrast with the evidence of the owner of the premises at which the work was being undertaken, Ms Caroll, as set forth in her affidavit.[37] She described the plaintiff and his father as having packed up their tools and equipment and left the premises without any indication of the plaintiff suffering an injury. However, I am not persuaded this is any significant credit issue. There may be a range of explanations as to why the plaintiff did not tell Ms Carol of his injury, or other reasons as to why she did not observe the same.
(d)
On a number of occasions, the plaintiff had communication with the WorkCover insurer by facsimile, and printed at the top was the phrase “Sizenkolegals”.[38] I do not view this as any significant credit issue.
(e)
In the clinical notes of Dr Shirzada of 4 April 2007,[39] there is reference to the plaintiff wishing the doctor to report to the WorkCover insurer in a particular manner. The plaintiff also apparently reported he was working “with a big law company and will sue the insurance”. In evidence, the plaintiff explained that the reason for this entry was that the doctor had previously provided the insurer with a simple one-line report which was not adequate. Again, I do not view this as a significant credit issue.
(f)
In the course of his affidavit,[40] the plaintiff referred to a trip with his family to Disney World in the United States. He described difficulties with prolonged periods sitting on the plane, and restrictions in the activities he was able to enjoy with his daughter. The reality of the situation was that the particular trip was more extensive than stated, and included a journey to Russia. In addition, the plaintiff admitted that most years since the third incident he had travelled to and returned from Russia to visit his family. While I accept that the plaintiff’s affidavit in this regard was not as extensive as it ought to have been, and this reflects to some extent upon his credit, I do not view it as a major matter.
[35] PCB 11
[36] PCB 76, PCB 98
[37] DCB 8
[38] See letters dated 19 July and 6 August 2007 - DCB 52-55
[39] DCB 114
[40] PCB 33, paragraph 42
59 In the course of cross-examination, extensive video surveillance film of the plaintiff over the period from August 2009 until August 2010 was shown. Mr Lewis admitted that the film was part of a total of 150 hours of surveillance undertaken upon the plaintiff over the relevant period.
60 The first surveillance was of 30 August 2009.[41] This showed the plaintiff carrying an object in his left hand.[42] Further film was taken of 6 December 2009,[43] but showed very little.
[41] Exhibit 2
[42] The film shows the plaintiff carrying the object in his right hand, but it was conceded the film was taken by reflection through a rear vision mirror and as a result, the sides of the body are transposed.
[43] Exhibit 3
61 In film taken in February 2010,[44] the plaintiff is seen to reach into the back of his car and remove shopping. He carries articles in his right hand for a brief period of time, which appear to be light.
[44] Exhibit 4
62 Further surveillance film of 30 May 2010[45] shows the plaintiff alighting from his car in a careful manner. He also lifts his daughter out of the car in a like manner. At a later point he is seen to lift and carry a folded aluminium ladder using his left hand and walking across a car park without apparent restriction.
[45] Exhibit 5
63 On 25 and 31 January 2010,[46] the plaintiff is seen to move freely and at one point jogging across a car park for a short period of time. He is seen to carry a light bag in his left, then his right hand. At another point, the plaintiff, his wife and another family went to the beach. The plaintiff is seen to squat down without apparent restriction and apply sunscreen to his daughter. He is seen to pick up his daughter from within the car and carry her down to the beach using his left arm. On a number of further occasions he is seen to carry his daughter to and from the car, again using his left arm. Through the bushes, the plaintiff is seen to jump up and down with his daughter a number of times and to swing her in a circle on the beach. At one point, subsequently, he leans forward for a period to place his daughter in the car. All this is undertaken without any apparent restriction.
[46] Exhibit 10
64 Further surveillance film was undertaken on 21 March 2010[47] which shows the plaintiff walking freely in his front yard. In July 2010,[48] the plaintiff is again seen to lift his daughter out of the car and onto the ground. He is seen to bend into the car for a period and then to go with his daughter into a shopping centre. He is able to squat to the ground to take photographs of his daughter. Finally, in August 2010,[49] there is a short period of video which shows little, save at one point the plaintiff holds his right shoulder as he gets into the car.
[47] Exhibit 7
[48] Exhibit 8
[49] Exhibit 9
65 Mr Lewis submits this surveillance is significant as it shows the plaintiff in an unrestricted and pain-free manner doing a range of activities, in particular, lifting his daughter out of the car, and bending and squatting, and that those activities are inconsistent with the histories provided to the doctors and his evidence by affidavit. Further, says Mr Lewis, it shows the plaintiff having a capacity to undertake a wide range of particularly domestic and recreational activities in a full and free manner.
66 I accept that on occasions in the surveillance film the plaintiff is shown performing activities I would have thought would prove difficult given his right shoulder and back condition. In particular, he lifts his daughter in and out of the car on a number of occasions without apparent restriction. He also squats, and bends into the car. However, the surveillance film must be seen in the context that it was only a small proportion only of 150 hours of surveillance. I infer that the surveillance undertaken, but which did not result in video being shown, would not have assisted the defendants’ case. Further, while there did seem to me to be some inconsistency between some of the movements undertaken by the plaintiff, and his claims of injury, the plaintiff did not deny specifically that he was unable to lift his daughter. In fact, in the course of cross-examination, he said he did do it but that he suffered pain as a result. While I accept Mr Lewis’ submission that the video film, taken as a whole, does reflect to some extent upon the plaintiff’s credibility, it is not sufficient to warrant a rejection of his evidence as to the pain and restriction he claims, particularly in the right shoulder.
The Various Incidents, Injuries and their Consequences
67 Mr Lewis submits that the plaintiff may not accumulate the consequences flowing from each of the three incidents in determining whether he meets the test of “serious injury”. I accept that submission. Mr Smith did not persist with the first incident as causing injury having consequences which reach the statutory test. It is clear the plaintiff cannot aggregate the consequences from, on the one hand the right shoulder injury, and on the other the low-back injury. I further accept that in accordance with the principles of Lu v Mediterranean Shoes,[50] the plaintiff may not aggregate the consequences of injuries to the one body function, suffered in two separate incidents. Thus, the plaintiff cannot aggregate the consequences of the first incident when he suffered injury to his right shoulder, with the consequences of injury in the third incident. Mr Smith did not argue to the contrary.
[50] (2000) 1 VR 511
Conclusions
68 I do not find it necessary to consider and determine whether the injury to the plaintiff’s lumbar spine which occurred in the second incident, aggravated in the third incident, constituted, when each incident is looked at separately, a “serious injury”. In my view, the injury to the plaintiff’s right shoulder led to consequences after the third incident which do meet the legislative test.
69 The starting point, in my view, is an assessment of the plaintiff’s capacities and activities prior to the third incident. The plaintiff is a man who was active in a recreational sense. He enjoyed a range of sporting activities, including boxing, tennis and in particular, building and maintenance works which he performed both at work and at home.
70 It is clear the plaintiff has significant pathology in his right shoulder, in particular, a labral tear, which, at one point, was to require arthroscopic repair. Of more recent times, Mr Moran has taken the view that given the shoulder is stable, there is no indication for such surgery. While the medical evidence is not definitive as to whether that tear occurred in the first or the third incident, it is of significance, in my view, that the plaintiff was able, albeit with some pain, to continue working in a heavy industry up until the date of the third incident. Whether the tear occurred at that time, or was aggravated in the third incident, nonetheless the consequences to the plaintiff are the loss of his capacity to undertake physical employment. While I do not accept that the plaintiff’s change of career to the law was as a result of the injury sustained in the third incident, it does mean that building and maintenance activities which he enjoyed, and which he was good at, are now severely restricted.
71 Further, while it is clear the plaintiff has a significant lower back problem and that this, in part, has rendered him unfit for heavy employment, there are specific activities which the plaintiff is unable to undertake, in particular, the use of his right arm at or above chest height, repetitive pushing and pulling motions with that arm, and the lifting of anything other than modest weights. While I have some reservations about the plaintiff’s credibility given the activities performed on the surveillance, the reference to his father as being responsible for the system of work and his reluctance in making full disclosure of his overseas trips, nonetheless, I am of the view that the plaintiff does suffer ongoing pain in the shoulder as reported to the various medical practitioners and that that pain was significantly increased in the third incident.
72 The plaintiff has little in the way of ongoing treatment, but that is more as a result of a reluctance to undertake shoulder surgery in the past, and a reluctance to take prescription pain-relieving medication, preferring natural therapies.
73 In considering the range of injuries and their consequences, I am satisfied that the consequences in the present case meet the “very considerable” level as the legislation requires. In those circumstances, I propose to grant leave to the plaintiff to bring proceedings at common law for pain and suffering only.
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