Stolk v Road Traffic Management
[2011] VCC 1105
•11 August 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT GEELONG
CIVIL DIVISION
Case No. CI-10-02462
| JOSEPH STOLK | Plaintiff |
| v | |
| ROAD TRAFFIC MANAGEMENT (VIC) PTY | Defendant |
| LTD & ORS |
---
| JUDGE: | His Honour Judge Howie |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 9 August 2011 |
| DATE OF JUDGMENT: | 11 August 2011 |
| CASE MAY BE CITED AS: | Stolk v Road Traffic Management |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1105 |
REASONS FOR JUDGMENT
---
Catchwords:
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C.W.R. Harrison SC | Petersons |
| Mr A.E.A. Macnab | ||
| For the Defendant | Mr R.M. Meldrum QC | Wisewould Mahony Lawyers |
| Ms K.A. Galpin | ||
| HIS HONOUR: |
1 The plaintiff seeks leave pursuant to s.134AB of the Accident Compensation Act 1985 to bring proceedings to recover damages for pain and suffering. He relies upon paragraph (a) of the definition of serious injury in sub-s. (37). The body function alleged to be impaired is the function of the right shoulder and arm.
2 The plaintiff is 59 years of age, his date of birth being 15 October 1951. He commenced employment with the defendant as a traffic controller in March 2007. In that employment he injured his right shoulder on two occasions, the first on 26 October 2007 when he confronted a thief on site and was knocked to the ground and the second on 14 January 2008 when he lifted a piece of concrete and threw it into an industrial bin.
3 Following the first occasion the plaintiff went to the first aid room where ice was applied to his shoulder but he did not seek medical treatment and had no time off work. He described the pain as a niggle in the shoulder for one or two days. He continued with his normal duties until 14 January 2008 when the second incident occurred. He has not worked since then. It is agreed that the relevant incident for the purpose of this application is the January 2008 incident.
4 Following that incident the plaintiff attended his general practitioner, Dr Dukkak, on 15 January 2008. After sending him for an ultrasound on 16 January 2008 Dr Dukkak referred the plaintiff to an orthopaedic surgeon, Mr Skelley who he first attended on 26 February 2008. On his examination Mr Skelley found that there was diffuse tenderness on the top of the shoulder and that movements of the shoulder were painful but not restricted. He diagnosed tendonitis involving the supraspinatus tendon as shown on the ultrasound and associated impingement. The plaintiff had been using Voltaren cream and Tramal and Mr Skelley referred him for physiotherapy.
5 Mr Skelley hoped that the plaintiff's shoulder pain would slowly settle with the passage of time. However, this did not occur and on 8 August 2008 Mr Skelley carried out repairs to the shoulder by arthroscopic surgery, moving an unstable part of the labrum, which I understand to be cartilage around the shoulder joint, removing some minor tears of the under-surface of the supraspinatus tendon, dividing the coracoacromial ligament and removing the under-surface of the acromion and the outer end of the clavicle. Unfortunately while there was some initial improvement following the surgery the improvement did not last and the plaintiff continued to have pain.
6 Mr Skelley reported this ongoing pain to Dr Dukkak on 10 November 2008. By 18 December 2008 Mr Skelley considered the plaintiff's pain had not altered significantly and that his condition had stabilised. He diagnosed the pain as due to tendinopathy or tendonitis or tendonosis, all words for the same condition as I understand it, involving the supraspinatus tendon and associated impingement of the supraspinatus tendon in the right shoulder. By impingement I understand him to mean that there was swelling in the tendon which prevented it from moving freely. He considered the pain to be chronic and likely to continue indefinitely. No further treatment was likely to assist with improvement. The plaintiff was continuing with physiotherapy which gave temporary improvement but not long term gain. On 5 February 2009 Mr Skelley reported to Dr Dukkak, "I fear this man's pain is chronic and will continue and he is unlikely to return to work. I don't have anything more to offer this man."
7 An issue arises as to whether the plaintiff's right shoulder symptoms were a consequence of the work incident or would have occurred when they did without the incident as a consequence of the degenerative condition of his supraspinatus tendon. Mr Jones, who examined the plaintiff on one occasion on 29 November 2010, reported that the "basis of his ongoing symptoms relates to degeneration affecting the rotator cuff tendon in his right shoulder rather than any work caused or aggravated injury."
8 As Mr Skelley had the significant advantage of having seen the plaintiff on a number of occasions over a period of more than a year and having examined his shoulder arthroscopically, I consider that his opinion on this issue is to be preferred to that of Mr Jones. In his report of 18 December 2008 Mr Skelley wrote, "It is hard to estimate how old the tendonosis and impingement is. In my opinion it probably was present before these injuries but the injuries precipitated the onset of symptoms."
9 Before the October 2007 incident the plaintiff had no symptoms in his right shoulder. After that incident he had a niggle of pain or discomfort but he was able to continue working including moving heavy bollards. After the January 2008 incident he was unable to work and the symptoms of pain and restricted movement required treatment by surgery. Apart from a brief period of improvement those symptoms continued after the surgery and have become chronic in the sense that they are likely to continue indefinitely. While it may not be able to be determined whether these symptoms would have occurred without the incident, because of the degeneration of the tendon, it remains the fact that they were caused by the incident and were not cured by the surgery.
10 Another orthopaedic surgeon, Mr Grossbard, who examined the plaintiff on 29 March 2011 expressed the following opinion. "This man has a soft tissue injury to his right shoulder with a secondary biceps tendonitis. His restrictive motion is highly suggestive of the development of a capsulitis. The situation is now stable. I believe this man is going to continue with limited movement and persistent discomfort. I do not think any surgical intervention is going to be helpful and the appropriate management is to just continue with exercises. The consideration of a hydrodilatation is reasonable, particularly if there is some thought this man may in fact be suffering with capsulitis. His global restriction of motion suggests this is a possibility. I think it is unlikely this man is going to return to work where he is required to lift or work at or above shoulder height. At the age of almost 60 and with his past history of coronary artery disease as well as longstanding back and knee problems, together with his right shoulder injury, the likelihood of him finding suitable employment is small. He does, however, have a work capacity for a job where he is not required to work at or above shoulder height or undertake bending and lifting. Consideration also needs to be given to his limited level of education."
11 I have read, considered and taken into account the other medical reports tendered by the parties, namely those of Dr Trainor, Mr Hart, Dr Wyatt, Dr Bowles and Dr Castle.
12 I am satisfied that as a consequence of the incident in the course of the plaintiff's employment by the defendant on 14 January 2008 the plaintiff suffered an injury to his right shoulder causing tendonosis in the supraspinatus tendon and associated impingement of that tendon and that his continuing symptoms of pain and some restriction of movement in the right shoulder are caused by that injury. I am satisfied that it is a permanent impairment of the function of his right shoulder and arm.
13 The more difficult question is whether the consequences of the impairment with respect to pain and suffering can be fairly described as being more than significant or marked and as being at least very considerable. The difficulty arises in part due to the affidavit material presented on the plaintiff's behalf. In his affidavit sworn on 10 November 2009 he deposed in paragraphs 17 and 18, "I used to play golf every weekend but cannot play anymore. I used to swim three times per weekend, 50 laps at the Norlane pool and I have had to give that up. I live alone and can do my own household chores but avoid overhead work. I cannot mow lawns and they are now waist height." In his affidavit sworn on 14 April 2011 he deposed in paragraph 6, "The impairment and loss of function of my right arm continues to affect my ability to enjoy golf and swimming as I used to."
14 Cross-examination revealed the assertions to be inaccurate. In 2004 the plaintiff had quadruple bypass surgery to his heart. In the period from 2004 to March 2007 when he commenced employment with the defendant he was not working. In that period he was not playing golf every weekend or regularly. His evidence was he had a couple of games of golf towards the end of the period. In the period he was not swimming three times each weekend or swimming 50 laps. He had stopped doing that after his bypass surgery. His evidence was that he swam two or three times a month as part of the exercise associated with his heart operation. After 2008 in the period that he lived in a house which may have been up to early this year when he moved to a caravan there were times when he did cut the lawns according to his evidence and there were times when someone else cut them for him.
15 It is regrettable that the plaintiff's affidavit was not prepared with greater care and with more careful attention to ensure the accuracy of what he was deposing to. It surprises me at times that such affidavits are not prepared with greater care. In this case it led Mr Stolk, the plaintiff, into a path that damaged his credit. It leads me to conclude that he is less than completely reliable in all matters but not that he is intentionally untruthful. The basic reality remains that he has an injured shoulder as described by Mr Skelley with permanent chronic pain.
16 It remains to consider the impact of the injury on his ability to work. He was 56 when the January 2008 incident occurred. His work history is that of a manual worker. He had been educated to Year 10 at Corio Technical School, for two years he worked in a hardware store and then as a truck driver for more than 14 years, then as a mine worker in Queensland and following that as a labourer with the Grain Elevators Board in Geelong. In 2004, when he was 51 or 52 he ceased work due to a heart condition that required bypass surgery. He did not work for the following two years or thereabouts, when he commenced employment with the defendant in March 2007. He worked for the remainder of that year, it was labouring work directing traffic on a building site and moving equipment, some of it heavy equipment. As a consequence of the shoulder injury he is unable to return to that work or work of that kind.
17 While there are other lighter jobs that he may be able to perform the reality is that a manual worker of his age with a chronic painful shoulder is unlikely to be able to return to any employment. The loss of the ability to continue to be employed as a manual worker is a significant matter. As the plaintiff put it, the shoulder injury removed what work capacity he had.
18 In summary the consequences of the impairment of the function of his right shoulder are that he has persistent chronic pain in the shoulder, a constant ache, exacerbated to more severe pain by activity and he has lost the ability to be employed in manual work of the kind in which he was previously employed. I am satisfied that the consequences of the impairment of the plaintiff's right shoulder with respect to pain and suffering can be fairly described as being more than significant or marked and as being at least very considerable. Leave is granted to the plaintiff to bring proceedings to recover damages for pain and suffering with respect to the injury to his right shoulder in the course of his employment by the defendant on 14 January 2008.
- - -
0
0
0