Souru v Caterpillar of Australia Pty Ltd
[2017] VCC 1753
•5 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-03539
| RAMSIN SOURU | Plaintiff |
| v | |
| CATERPILLAR OF AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 November 2017 | |
DATE OF JUDGMENT: | 5 December 2017 | |
CASE MAY BE CITED AS: | Souru v Caterpillar of Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1753 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – left shoulder – unrelated right wrist injury - disentanglement – whether consequences are “serious”
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Haden Engineering Pty Ltd v McKinnon [2010] 31 VR 1; Peak Engineering Pty Ltd v Victorian WorkCover Authority [2014] VSCA 67; Stijepic v One Force Group (Australia) Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172; Dressing v Porter [2006] VSCA 216.
Judgment: Application successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram | Nowicki Carbone |
| For the Defendant | Mr P Rattray QC Ms C Spitaleri | Minter Ellison |
HER HONOUR:
Preliminary
1 Mr Souru is a 48 year old man who suffered injury to his left shoulder during the course of his employment with the defendant from 20 October 1999 to December 2011. At the time he suffered his injury, Mr Souru was employed as a supervisor. He said that he was required to perform warehouse duties for the defendant, which involved repetitively lifting heavy Caterpillar parts. He claims that in approximately May 2010, his left shoulder was struck by a forklift, and that, in a two day period in December 2011, he was required to perform constant and repetitive lifting of 30 tons of iron parts.
2 Mr Souru claims to have suffered serious consequences as a result of this left shoulder injury, in respect of his pain and suffering. In order for Mr Souru to be entitled to claim common law damages, the impairment of his left shoulder must satisfy paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985 (“ACA”).
3 The defendant accepts that Mr Souru suffered this left shoulder injury during the course of his employment, but disputes that his consequences are serious.
4 The matter is complicated by virtue of the fact that Mr Souru also suffered an aggravation of a pre-existing right wrist injury and lower back injury. However, he does not claim that either of these conditions constitutes a serious injury. In considering Mr Souru’s application in respect of his left shoulder injury, I must disregard the consequences attributable to his right wrist and lower back injury.
5 Only Mr Souru was called to give evidence and he was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
6 For the reasons which follow, I am satisfied that the pain and suffering consequences to Mr Souru from his left shoulder impairment, can be described as at least very considerable, such that he should be entitled to recover common law damages for his left shoulder injury.
Relevant background
7 Mr Souru was born in Iran and migrated to Australia in 1986. He is married and has three teenage children.
8 Prior to commencing his employment with the defendant, Mr Souru worked as a store person with Mazda for about three years.
9 In 1989, Mr Souru commenced his employment with the defendant as a store person. He was promoted to the position of team leader in 1994, and the position of supervisor in 2000.
10 In 1995, Mr Souru suffered an injury to his right wrist during the course of his employment with the defendant, following which he had approximately four to five operations in the subsequent 12 months. Mr Souru said that he was able to return to work on light duties after each surgical procedure, and that he eventually returned to his normal pre-injury duties.
11 In approximately 2002, Mr Souru aggravated his right wrist injury for which he required a further surgical procedure. Mr Souru said that he then returned to work on light duties for approximately six to eight months, after which he returned to his pre-injury duties.
12 In either May 2010 or May 2011, Mr Souru said that his left shoulder was struck by a pallet, whilst it was being moved by a forklift, leaving a red mark on his skin. Mr Souru experienced some pain in his left shoulder for a short period of time, but said that he did not have any ongoing problems following this incident.
13 Prior to December 2011, Mr Souru said that he enjoyed a number of recreational activities, including competition snooker at the Brunswick Club. He also enjoyed ocean fishing and would regularly go out in a boat from Geelong or Apollo Bay.
14 Mr Souru also said that he enjoyed playing basketball with friends and his children. In cross-examination, however, he conceded that he had stopped playing approximately five to six months prior to December 2011.
15 Mr Souru said that he loved working in his garden and that he grew fruit trees, vegetables and had a rose garden. Mr Souru also said that he “loved” his car and that he enjoyed being able to service and repair the three cars his family owned.
Injury and its consequences
16 In December 2011, Mr Souru developed pain in his left shoulder, back and right wrist after being required to move 30 tons of iron parts over a two day period. He said that he reported his injuries to the defendant and was advised to consult the defendant’s company doctor, general practitioner, Dr Nouman Iftikhar.
17 On 3 January 2011, Dr Iftikhar obtained a history from Mr Souru that, on 22 December 2011, he developed pain in his left shoulder and both wrists, whilst lifting heavy parts at work. Dr Iftikhar prescribed anti-inflammatory medication and certified Mr Souru as fit for modified duties.
18 Mr Souru said that his manager also required him to consult general practitioner, Dr Paul Mulkearns, at the Leake Street Clinic.
19 On 5 January 2012, Mr Souru consulted Dr Mulkearns, who obtained a history that Mr Souru had suffered an injury to his left shoulder in May 2010, when he was struck by a pallet. He noted that it had “become worse in the month prior to presenting to the surgery”. It was also noted that Mr Souru had suffered increasing pain in his right wrist since 23 December 2011, due to measuring and lifting heavy parts.
20 Dr Mulkearns arranged for an ultrasound to be taken of Mr Souru’s left shoulder, which revealed a small partial thickness tear of the supraspinatus tendon and mild subacromial bursitis. He also arranged for an MRI scan to be taken of Mr Souru’s cervical spine and right wrist.
21 On 13 January 2012, Dr Mulkearns injected Mr Souru with a steroid into the left subacromial space, and referred him to hand surgeon, Mr James Thomas, regarding his right wrist pain. Dr Mulkearns also prescribed Celebrex for general pain relief.
22 On 18 January 2012, Mr Souru again consulted Dr Mulkearns, who noted that his left shoulder pain had reduced after the steroid injection and that he was coping well on alternative duties. Dr Mulkearns provided Mr Souru with a certificate of capacity in relation to his left shoulder injury, which stated that he should only perform auditing duties.
23 On 31 January 2012, Mr Souru consulted Dr Arthur Tsiglopoulos at the Leake Street Clinic. Mr Souru reported that his left shoulder had not improved after the steroid injection. Dr Tsiglopoulos considered that Mr Souru’s symptoms should settle with time, physiotherapy, exercises and simple analgesics. Dr Tsiglopoulos issued a further WorkCover certificate, which stated that Mr Souru should only perform modified duties, and that he should not lift more than five kilograms or perform overhead work with his left arm.
24 On 14 February 2012, Mr Souru consulted Dr Domenic Raffaele at the Craigieburn Chiropractic Centre. He obtained a history from Mr Souru that he had suffered an injury at his workplace on 28 December 2011, when a heavy pallet had fallen directly onto his left neck and shoulder region. Dr Raffaele was of the opinion that Mr Souru had suffered a chronic left shoulder soft tissue injury, which was complicated by a cervical spine disc degeneration. Dr Raffaele recommended that Mr Souru undergo chiropractic treatment from which he was obtaining some relief. However, in cross-examination, Mr Souru said that he did not persist with this treatment as he obtained little benefit.
25 On 14 March 2012, Mr Souru consulted Dr Tsiglopoulos, who noted that his neck pain had improved, but that he still complained of left shoulder/scapular and upper arm pain. Dr Tsiglopoulos recommended that Mr Souru receive a further steroid injection, performed under ultrasound guidance, into the left subacromial space.
26 On 16 March 2012, Mr Souru attended physiotherapist, Mr Uthara Kosuri, for treatment of his left shoulder injury. Mr Kosuri noted that Mr Souru complained of severe, constant, sharp pain and stiffness in his left shoulder, with radiation down his left arm and the left scapular area. It was noted that his pain was aggravated by overhead and sideways reaching, as well as lifting weights, and that he had difficulty reaching behind his back.
27 Mr Kosuri obtained a history that Mr Souru had initially sustained his injury on 24 May 2011, when a heavy pallet dropped on his left shoulder. He then noted that on 28 December 2011, Mr Souru experienced a worsening of his symptoms, after performing repetitive heavy lifting, and that he had subsequently been placed on light duties. At that time, it was noted that Mr Souru complained of worsening symptoms by the end of each day.
28 Upon examination, Mr Kosuri noted that Mr Souru’s range of motion in his left shoulder was limited by pain and stiffness and that there was marked tenderness over his left rotator cuff tendons and the medial border of the scapular. Mr Kosuri recommended treatment by way of passive physiological mobilisation, ultrasound therapy, as well as deep tissue massage and strengthening exercises. Mr Souru said that he had physiotherapy treatment for a couple of months which helped, but that he could not afford to continue paying for such treatment.
29 On 3 April 2012, radiologist, Dr Vahid Master, performed an ultrasound-guided left bursal injection into Mr Souru’s left shoulder.
30 Mr Souru continued at work on light duties and was provided with certificates of capacity from Dr Tsiglopoulos, both in respect of his left shoulder and right wrist pain. As at 26 April 2012, the certificates stated that he should not lift more than 15 kilograms or perform overhead work with his left arm, but that he was able to unload trucks.
31 On 6 August 2013, Mr Souru had an ultrasound of his left shoulder. It was reported as demonstrating subacromial bursitis, with bursal impingement. The small bursal surface tear of the mid supraspinatus tendon that had previously been seen, was not detected at this examination.
32 Mr Souru said that Dr Tsiglopoulos told him the cortisone injection was like a “band aid”, in that it would give him relief for a few months, but would not fix his shoulder.
33 Throughout the latter part of 2014, Dr Tsiglopoulos progressively increased the weight for which he certified Mr Souru as capable of lifting as follows:
June 2014 – up to 18 kilograms, with no overhead work with the left arm;
July 2014 – up to 21 kilograms, with no overhead work with the left arm;
October 2014 – up to 23 kilograms, with no overhead work with the left arm.
On 16 October 2014, Dr Tsiglopoulos issued Mr Souru his last certificate of capacity, which specifically referred to his left arm. The certificates issued thereafter, up until 15 April 2015, stated that Mr Souru should not undertake lifting of more than 25 kilograms with his right hand.
34 In May 2015, Mr Souru said that the defendant’s human resources manager, told him his employment would be terminated if he was not cleared to undertake normal duties. Mr Souru said that he then had a discussion with Dr Tsiglopoulos and obtained a certificate of capacity stating that he was fit for normal duties, on the basis that he needed to keep his job in order to ensure the support of his family.
35 In his first affidavit, Mr Souru said that since being cleared to perform normal duties, he has worked 9.00am to 5.30pm, “with no overtime, no weekend work and no shift work”. However, in cross-examination, Mr Souru conceded that he has been able to do overtime work.
36 The defendant tendered an affidavit from Mr Mark Day, the defendant’s logistic centre manager. Mr Day stated that Mr Souru is paid $1,159.37 gross per week, based on 38 hours per week, which equates to a gross annual income of $60,287.24. Mr Day said that from 1 January 2017 to 19 April 2017, Mr Souru had performed between 17.4 and 39.9 hours of overtime per month.
37 Mr Souru accepted that in the financial year ending 30 June 2017, he received a gross income of $78,270, part of which included approximately $12,000 for shares he had in the defendant company which were sold.
38 Mr Souru said that he suffers daily pain in his left shoulder, as well as in his right wrist, and that such pain is aggravated by activities including his work duties.
39 Mr Souru said that, if he is required to do a lot of heavy lifting at work, he takes two Panadol Extra tablets at 10.30am, two tablets at 12.30pm and two tablets at 3.30pm. He then said that he normally takes two tablets at about 6.30pm, together with a glass of scotch. If his pain is really bad, he will take two tablets at bedtime at about 10.00pm. Mr Souru said that he goes through about 40 tablets of Panadol Extra per week, and that whilst it takes the edge off his left shoulder pain, the pain continues to persist. He said he takes the medication mainly for his left shoulder and right wrist. Mr Souru said that he has developed stomach problems as a result of the amount of medication he is taking, for which he now takes Nexium medication.
40 Mr Souru said that his sleep is disturbed on a regular basis because of his left shoulder and right wrist pain, and that it is more likely he will be woken up during the night because of such pain, if he has had a heavy day at work. He estimates that his sleep is disturbed on average three times per week. In cross-examination, Mr Souru said that he sometimes wakes at 3.30am, at which time he takes some medication and falls back to sleep within half an hour.
41 Mr Souru said that his left shoulder and right wrist pain restricts his capacity to perform household chores, in particular, sweeping, vacuuming and hanging washing out.
42 Mr Souru said that he is still able to do some gardening, but not to the extent he did prior to suffering his left shoulder and right wrist injuries, and that the pain prevents him from shovelling soil.
43 Mr Souru said that he is still able to do some work on cars, but nowhere near the extent he did prior to suffering his left shoulder and right wrist injuries, and that whilst he is able to service the cars, he now has to send them to a mechanic if they require a repair.
44 Mr Souru said that he has not been able to play snooker as a consequence of both his left shoulder and right wrist injuries. He explained that he uses his right wrist to hold the cue, but that his left arm is needed to support himself on the table. He said that the pain in his left shoulder causes him to shake, which makes it difficult to play.
45 Mr Souru also said that his ability to go ocean fishing has been compromised as a consequence of his left shoulder and right wrist injuries. He said that prior to suffering his injuries in December 2011, he used to go fishing at least once a month when the weather was okay and about once every few months over the winter. He said that since March 2016, he has only been fishing on about two occasions. He said that he has difficulties holding his fishing rod with his left arm, as well as difficulties casting the rod with his right wrist.
46 Mr Souru also claimed that his left shoulder injury had compromised his ability to play basketball. However, in cross-examination, he indicated that he had stopped playing basketball with his children approximately five to six months prior to December 2011. In circumstances where he had given evidence that the knocking of his left shoulder in the pallet incident had not caused him any ongoing problems, I do not accept that the left shoulder injury contributed to Mr Souru ceasing to play basketball five to six months prior to December 2011.
47 Mr Souru said that he is “like a tractor”, in that he never stops working, despite his pain. He said that he takes Panadol medication, as well as drinking scotch, to help with his pain, and to help him fall asleep at night.
48 Mr Souru has ceased consulting Dr Tsiglopoulos, and now attends his local medical clinic, the Craigieburn Medical Clinic. However, Mr Souru said that he has not consulted these doctors in relation to his left shoulder injury, as he was effectively told that they would not treat him for a WorkCover injury which had previously been managed by another doctor.
Medico-legal opinions
49 Mr Souru’s solicitors arranged for him to be examined by occupational physician, Dr Joseph Slesenger, in December 2016. In his report dated 15 January 2017, Dr Slesenger noted that Mr Souru reported suffering injuries to his left shoulder, aggravation of a pre-existing right wrist impairment and aggravation of a pre-existing lower back impairment, when required to pick and pack 30 tons of steel in December 2011. Dr Slesenger then detailed Mr Souru’s complaints in relation to each injury, his examination findings and his opinion as to the restrictions those injuries place upon Mr Souru’s work capacity and his long term prognosis.
50 Dr Slesenger further noted that Mr Souru’s left shoulder pain had persisted despite physiotherapy treatment, and that such pain was worse when elevating his arm, forward reaching, pushing and pulling and lying on his left side. It was noted that Mr Souru tends to avoid his left arm for over-the-shoulder work.
51 On examination, Dr Slesenger noted mild wasting of the deltoid muscle and tenderness on palpation over the acromioclavicular joint and the superior aspect of the left shoulder. Dr Slesenger noted that Mr Souru’s flexion and abduction were both to 90 degrees.
52 Dr Slesenger then stated that, in his opinion, Mr Souru suffered a soft tissue injury to his left shoulder, and considered a clinical examination to demonstrate evidence of supraspinatus tendonitis and adhesive capsulitis.
53 Dr Slesenger was of the opinion that Mr Souru was then working outside his capacity limits, and considered that, as a consequence of his injuries, he should not push, pull, carry or lift over five kilograms; reach over his shoulder or perform repetitive shoulder or wrist work.
54 It is unclear from Dr Slesenger’s report, which of Mr Souru’s injuries are relevant to the limitation on lifting over five kilograms. However, in my opinion, the restrictions in relation to the over shoulder reaching and repetitive shoulder work likely relate to Mr Souru’s left shoulder injury.
55 Mr Souru’s solicitors also arranged for him to be examined by orthopaedic surgeon, Mr Russell Miller, in October 2017. In his report dated 27 October 2017, Mr Miller referred to Mr Souru’s pre-existing right wrist injury, and then detailed the circumstances in which he suffered his injury in December 2011. It was noted that, at that time, Mr Souru developed problems with neck, lower back, left shoulder and right wrist pain. Mr Miller noted that, as at October 2017, Mr Souru’s main complaints were in relation to his left shoulder and right wrist, and that he complained of ache, discomfort and pain in his left shoulder, which was worse with repetitive and overhead activities. Mr Miller made reference to the fact that such complaints created some difficulties for Mr Souru at work. He also noted that Mr Souru’s symptoms fluctuate, but that there has been no pattern towards improvement. He also noted a complaint of some sleep disturbance.
56 On examination, Mr Miller noted tenderness and swelling in the region of Mr Souru’s left acromioclavicular joint. He noted abduction and forward elevation to 110 degrees. He also noted irritability during shoulder movement.
57 Mr Miller reviewed Mr Souru’s left ultrasound of January 2012, but was not provided with the latest ultrasound of August 2013.
58 Mr Miller was of the opinion that Mr Souru was suffering problems in his left shoulder, which were likely due to impingement, rotator cuff dysfunction and capsulitis. He considered it likely there was a pre-existing disease in Mr Souru’s shoulder, which was aggravated by the heavy physical work in 2011.
59 Mr Miller was of the opinion that Mr Souru is likely to require surgical intervention for his left shoulder, in the form of arthroscopic subacromial decompression and rotator cuff repair. He was also of the opinion that Mr Souru’s left shoulder injury will impose restrictions, including no repetitive left arm actions, no use of the left arm in above shoulder position and no lifting weights of more than five kilograms.
60 The defendant arranged for Mr Souru to be examined by rheumatologist, Dr Roy Karna, in relation to his left shoulder injury in July 2013 and January 2017. In his report dated 9 July 2013, Dr Karna obtained a history from Mr Souru that he first suffered left shoulder pain in December 2011, after a busy lifting period.
61 Dr Karna was of the opinion that Mr Souru suffered mild subacromial impingement syndrome in his left shoulder, which resulted “in pain and some restriction of motion”.
62 Dr Karna was aware of the pallet incident from the medical records, but did not obtain a history of the incident from Mr Souru. He considered it was likely to be a “self-limiting” event, and thought that his lifting duties were likely to be the cause of Mr Souru’s ongoing left shoulder injury.
63 In his subsequent report dated 25 January 2017, Dr Karna noted that Mr Souru complained to him of consistent left shoulder pain that was made worse by prolonged and overhead lifting. It was noted that, by the end of a working day, Mr Souru’s left shoulder was constantly aching and that he had trouble elevating his arm to 90 degrees.
64 On examination, Dr Karna noted that Mr Souru had restricted abduction and internal rotation and palpable discomfort in the subacromial region.
65 Dr Karna was of the opinion that Mr Souru’s shoulder is likely to worsen over time, and that biomechanical stressors such as overhead lifting, may only be feasible in the short to medium term. However, as at the time of his examination, Dr Karna was of the opinion that Mr Souru was fit for his pre-injury duties.
66 The defendant also arranged for Mr Souru to be examined by orthopaedic surgeon, Mr Michael Dooley, in February 2017. In his report dated 1 March 2017, Mr Dooley detailed Mr Souru’s past history including his right wrist injury. He noted that in December 2011, after a lot of lifting and manoeuvring of metal parts, Mr Souru noted pain in his left shoulder, right wrist, neck and back. At the time of the examination, Mr Dooley noted that Mr Souru complained of ongoing pain in his right wrist, left shoulder, neck and back and that he takes Panadol and alcohol for pain relief.
67 On examination, Mr Dooley noted active abduction and forward flexion to 140 degrees with pain on such movement. He also noted that passively, Mr Souru’s left shoulder could be abducted and forward flexed to 150 degrees.
68 Mr Dooley was of the opinion that Mr Souru had suffered a soft tissue injury to his left shoulder region, which involved some aggravation of underlying and naturally occurring degenerative rotator cuff disease. He considered it feasible that Mr Souru aggravated this underlying condition whilst carrying out his work duties. Mr Dooley considered Mr Souru had signs of some inflammation of the left rotator cuff tendons and impingement. However, he did not believe that surgical intervention would be required.
69 In a supplementary report dated 5 May 2017, Mr Dooley stated that Mr Souru experienced significant ongoing left shoulder girdle pain with significant functional disability. In such circumstances, he considered it reasonable to refer Mr Souru to an orthopaedic surgeon, with a view to further injections and possible surgery in the form of arthroscopic subacromial decompression. However, as at the time of his examination of Mr Souru, Mr Dooley did not consider such surgical intervention was required.
70 Mr Dooley concluded that Mr Souru:
“… presents as a sensible and genuine historian. I believe that he is capable of self-managing the majority of his symptomology. He is also sensible enough to note whether or not there is an increase in pain in relation to his left shoulder condition and seek appropriate medical treatment.”
71 I note by way of comment, that there is very limited material regarding the incident in which Mr Souru’s left shoulder was struck by a pallet in either May 2010 or May 2011. I note that Mr Souru did not provide a history of this incident to any of the medico-legal doctors. Mr Souru gave evidence that, following the pallet incident, he suffered only short-term pain with no ongoing problems. I consider Dr Karna’s description of this incident as “self-limiting” to be appropriate and, for the purpose of this claim, I am satisfied that the general nature of Mr Souru’s duties, which involved repetitive and heavy lifting, caused the onset of left shoulder pain in December 2011.
Plaintiff’s credibility
72 I consider Mr Souru to be a stoic individual, who, for the most part, was a witness of truth. Despite having suffered a nasty right wrist injury in 1995, for which he required multiple surgical procedures, Mr Souru has persisted with full-time work throughout. I accept that he is motivated to stay at work, so as to provide for his family, and that he does so despite suffering ongoing pain in his left shoulder and right wrist.
73 In cross-examination, Mr Souru made multiple concessions regarding his right wrist and the restrictions it had caused him. I accept that in so doing, Mr Souru did, for the most part, give honest evidence and did not seek to understate the difficulties his right wrist injury causes him.
74 However, I did have some concern regarding Mr Souru’s evidence as to the reasons for which he stopped playing basketball. I am satisfied that his left shoulder injury was not causing him any problems when he ceased playing basketball approximately five to six months prior to December 2011. In addition, whilst I accept that his left shoulder injury may now cause him difficulties if Mr Souru was to resume playing, I am satisfied that he ceased playing basketball as a consequence only of his right wrist injury.
75 In his first affidavit, Mr Souru said that he is unable to perform overtime work, which I consider to be incorrect. However, I note that Mr Souru conceded in cross-examination that he does now perform overtime work.
76 I accept that Mr Souru performs regular overtime work. I consider this to be further demonstrative of Mr Souru’s stoic character and his desire to persist at work and provide for his family, despite suffering daily pain in his left shoulder and right wrist.
77 The defendant relied upon video surveillance taken of Mr Souru on 25, 29 and 30 April 2017. On 25 April 2017, Mr Souru was seen to service his car for several hours, during which time there was no apparent restriction of either his left shoulder or right wrist. At one stage, Mr Souru closes the bonnet of his car with his left shoulder with no apparent restriction.
78 On 29 April 2017, Mr Souru is seen at an auction. He talks to people and gestures with both of his arms, including moving his arms in an anticlockwise motion. Again, no apparent restriction of movement can be seen in this video footage.
79 On 30 April 2017, Mr Souru is seen at a market, during which he carries a box on his right shoulder and some bags in his left hand. When he gets home, Mr Souru then carries the box on his left shoulder. Again, no apparent restriction can be seen in this video.
80 Mr Souru accepted that no apparent restriction of movement can be seen in any of the video footage. However, he remarked, “during the night-time it’s different”.
81 The video surveillance is a snap shot in time, and I do not consider the activities performed by Mr Souru to be inconsistent with his evidence that he suffers ongoing pain and restriction of movement in his left shoulder.
82 Whilst giving evidence, Mr Souru was asked to demonstrate how far he can lift his left arm above shoulder height. He demonstrated movement to approximately 150 degrees and he said that at that level, his left arm gets sore and tired. I accept Mr Souru’s evidence in relation to his left arm, and I am of the opinion that the measurements taken by the medico-legal doctors, including Dr Slesenger, Mr Miller and Mr Dooley, represent Mr Souru’s range of motion without pain. I am therefore satisfied that it is painful for Mr Souru to lift or use his left arm above shoulder height.
Disentanglement of the consequences to Mr Souru
83 In assessing whether his consequences meet the very considerable test, it is necessary for me to assess the impact of Mr Souru’s left shoulder impairment on an objective basis. The matter is complicated by the ongoing impairment Mr Souru suffers in his right wrist and, to a lesser extent, his neck and lower back. Those injuries cause Mr Souru daily pain, as well as impairment, in respect of his domestic and recreational activities.
84 As was noted by Maxwell P in Peak Engineering Pty Ltd v Victorian WorkCover Authority,[1] :
[24] … where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury.”
[1][2014] VSCA 67
85 In cases where the injuries cause separate and distinct consequences, this a relatively easy task. However, as was the situation in Peak Engineering, where there is some overlap between the consequences arising from two separate injuries, it is necessary for the plaintiff to disentangle the consequences of each.
86 An overlap in consequences from multiple impairments does not automatically disentitle the plaintiff. As was noted Ashley JA in Grech v Orica Australia Pty Ltd, [2]
“……it is quite possible – it will be a matter of determination according to the evidence in the particular case - that each of two or more compensable injuries is a legally sufficient cause of the same consequences.”[3]
“… It is enough to say that the Act, with its predecessors, contemplates that a consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.”[4]
[2]Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172 at [57]- [58]
[3]Ibid at [57]
[4]Ibid at [58]
87 It is obligatory for me to consider only those consequences arising from Mr Souru’s left shoulder injury. I note that “it is beside the point”[5] that Mr Souru’s right wrist impairment and, to a lesser extent, his spinal impairment, have also caused the same consequences.
[5]Dressing v Porter [2006] VSCA 216 at [47]
Are the pain and suffering consequences of Mr Souru’s left shoulder impairment very considerable?
88 In Haden Engineering Pty Ltd v McKinnon, Maxwell P said:
“In its accepted interpretation, the ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. (I will refer to the second element as “the disabling effect” of the pain.)
The experience of pain
As to the experience of pain as such, the Court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, the Court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.
As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.”[6]
[6]Haden Engineering Pty Ltd v McKinnon [2010] 31 VR 1 [9] – [12]
89 I accept Mr Souru’s evidence that he suffers left shoulder pain on a daily basis. I also accept that his left shoulder pain is aggravated by activities involving his left arm.
90 I accept that Ms Souru does not obtain any ongoing medical treatment, as he understands that nothing further can be done for him at this stage. I accept that he obtained some benefit from physiotherapy treatment, but that he cannot afford to pay for such treatment himself. He understands the cortisone injections only work as band aids and will not provide him with ongoing pain relief.
91 I accept that Mr Souru takes approximately 40 Panadol Extra tablets per week to ease his pain. Whilst I accept that Mr Souru takes this medication for a multitude of injuries, I am satisfied that his left shoulder pain is a reason for which he takes such medication, and that it is therefore a consequence I can properly consider.
92 As has been recognised by the Court of Appeal in previous cases:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[7]
[7]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267 at para [199]
93 Mr Souru persists in full-time work, as well as performing some overtime work, despite the endurance of daily left shoulder pain. I accept that Mr Souru’s work aggravates his left shoulder pain. I consider Mr Souru to be stoic in his endurance of such pain.
94 I am satisfied Mr Souru is restricted in the activities he can perform around the home, specifically, that his left shoulder injury causes him difficulties hanging washing on the line and undertaking gardening. I accept that gardening was one of the hobbies Mr Souru enjoyed prior to December 2011.
95 Mr Souru loved his cars and, prior to December 2011, would regularly service and repair them. Now he can only service his cars. I also accept that when he does so, he suffers increased pain in his left shoulder. The video surveillance of Mr Souru servicing his car was not inconsistent with his evidence, and I consider it to further demonstrate the manner in which he persists with such activities, despite his pain.
96 I accept that Mr Souru is restricted in his ability to go fishing, which he now does much less frequently due to his left shoulder and right wrist pain. Once again, I am satisfied that the left shoulder impairment makes it difficult for Mr Souru to hold a fishing rod, such that I can consider this consequence as part of the application.
97 I accept that Mr Souru is no longer able to play snooker, due to his left shoulder pain and right wrist. I consider snooker to be an activity which requires bilateral arm movements. I am satisfied that Mr Souru’s left shoulder pain makes it difficult for him to lean on his left arm whilst playing snooker and therefore this is a consequence that I can consider in this application.
98 For the reasons detailed above, I am not, however, satisfied that Mr Souru stopped playing basketball as a consequence of his left shoulder impairment, and therefore have had no regard to this restriction.
99 I note that Dr Slesenger, Mr Miller, Dr Karna and Mr Dooley all accepted that Mr Souru had some ongoing impairment in his left shoulder, particularly in relation to overhead movements.
100 In determining this case, I must make a comparison with other cases in the range of possible impairments. In so doing, I am mindful that I must consider the broad spectrum of cases that this Court sees. As was noted by Ashley JA and Beach AJA in Stijepic v One Force Group (Australia) Pty Ltd:[8]
“… this includes cases which do not end up in litigation — because, it may be supposed, the consequences are glaringly apparent one way or the other.”
[8][2009] VSCA 181 at para [89]
101 Further, it was stated:
“ this involves a value judgment, in which matters of fact and degree, and of impression, are operative.”[9]
[9][2009] VSCA 181 at para [41]
102 Having accepted the preponderance of Mr Souru’s evidence, together with the medical material supporting that he suffers ongoing restrictions due to his left shoulder injury, and accepting that he is a stoic individual, I am satisfied that the pain and suffering consequences to Mr Souru can be described as more than significant and marked, and at least very considerable.
103 I therefore grant Mr Souru leave to commence common law proceedings in respect of pain and suffering consequences from his left shoulder impairment arising out of the course of his employment with the defendant.
104 I shall make the consequent orders.
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