Stretton v National Forge (Operations) Pty Ltd
[2010] VCC 274
•8 April 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BALLARAT
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-03435
| HEATH STRETTON | Plaintiff |
| v | |
| NATIONAL FORGE (OPERATIONS) PTY LTD | First Defendant |
| and | |
| CMI OPERATIONS PTY LTD | Second Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Third Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 16 March 2010 |
| DATE OF JUDGMENT: | 8 April 2010 |
| CASE MAY BE CITED AS: | Stretton v National Forge (Operations) Pty Ltd & Ors |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0274 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(16)(b) serious injury application – whether consequences of injury meet statutory threshold.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Jordan SC with | Slater & Gordon Ltd, Ballarat |
| Mr M A Nightingale | ||
| For the First and Second | Mr P D Elliott QC with | Herbert Geer |
| Defendants | Mr I S Gourlay | |
| For the Third Defendant | as above | Thomson Playford Cutlers |
| HIS HONOUR: |
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages with respect to the pain and suffering consequences of an injury suffered by him in the course of his employment with the first defendant on 19 July 2002.
2 In the course of the proceeding, the plaintiff gave evidence and was cross- examined. Otherwise the parties rely upon various documents contained in their respective Court Books which included two affidavits sworn by the plaintiff, the first on 4 November 2008 and the second on 16 March 2010, together with a number of medical reports.
3 The injury relied upon by the plaintiff is an injury to the right shoulder involving the right sternoclavicular joint.
4 In his first affidavit, the plaintiff deposed that:
•
He was currently thirty-four years of age and was predominantly right- handed. He said that he left school after completing Year 11 and that thereafter he had been employed in manual labouring type employment until commencing employment with the first defendant, which was the manufacturer of metal forgings for cars and land-based power generators. He said that upon commencing this employment he was employed as a machine operator and that after approximately four months he was promoted to a position of leading hand, in which occupation he was taking home over $600 a week in 2002. He described his work as being very physical and said that he enjoyed working with heavy machinery and that he loved his job.
•
He was injured on 19 April 2002 whilst attempting to undo bolts on a large press. He said that he initially experienced pins and needles in his right arm; that he returned to work after having a few days off, and that whilst he returned to normal duties, he avoided using his right hand. He said that thereafter, although he continued to perform normal duties, he favoured his right hand as much as he could. He said that he was subsequently transferred to the commercial forging section of the first defendant’s premises where, as a member of a team, he was required to work under a bonus scheme. He described this work as placing pressure on his shoulder, such that:
“My right collarbone would often pop out when doing my work and I
had to continually put it back in”.
He said he continued in this work until early in 2004 when he was transferred to full-time gatehouse duties, which work involved him in supervising the entry of vehicles onto the worksite and light duties, including painting and office duties. He said that he continued to perform those duties until September 2005, at which time he accepted a redundancy package.
•
He suffered from constant pain in both shoulders, his right upper limb being worse than his left; constant numbness affecting his right hand and fingers and occasional pins and needles in the fingers depending upon his workload. He described the level of pain in his shoulder as increasing with forceful pushing or pulling or repetitive use of the shoulder. He said he had difficulty in putting on or taking off upper body clothing, washing his hair and brushing his teeth, and that he had difficulty wiping his bottom.[1] He described his sleep pattern as being “shocking” and that lying on his right side increased his pain.[2]
•
Before his injury he loved fishing and “resurrecting old cars”. He said he intended to return to playing competitive cricket and that his mother relied heavily upon him to undertake maintenance work around her home at Blackwood as well as to work on her car.
•
His injury limited his ability to cast a line and thus to fish, other than at the most conservative level of that activity, that it restricted his ability to service, maintain and work upon cars, and that it had caused him to lose contact with his friends. He said that the injury limited his ability to assist his mother; that it had prevented him from returning to competitive cricket and that it prevented him from working in unrestricted work duties. He said that his injury had significantly reduced his ability to earn wages, that he could not work in unrestricted duties as he was able prior to the accident and that he was no longer able to undertake work which involved the forceful use of his shoulders, arms or hands, or work which required him to undertake repeated heavy lifting or working with raised arms.
•
He managed his symptoms by taking Mobic and Panadeine Forte tablets and that, as at the time his affidavit was sworn, he took medication every four hours depending on his level of pain. He described his current employment as involving working with a food processing company – Ballantine’s. He said he worked three to four days a week and earned between $400 to $500 per week in that employment.
[1] Although in his affidavit material the plaintiff did not describe the precise cause of the difficulties to which I have referred, it is clear, having regard to the medical evidence and the plaintiff’s viva voce evidence, that he suffers from a problem which involves the tendency of his shoulder to subluxate in the presence of particular movement.
[2] It is not in issue that the injury suffered by the plaintiff to his shoulder has resulted in the shoulder joint being unstable such that it is prone to subluxation. I interpret the plaintiff’s problems in performing the activities to which I have referred above as being caused by the fact that these activities involved either significant levels of discomfort or the possibility of the shoulder subluxating.
5 In his second affidavit, the plaintiff said that:
•
His right arm had remained painful and unstable and that it frequently “pops out of its socket”. He said that whilst he had continued to work as hard as he could, his work caused him to suffer “flare-ups” whilst performing activities which he had no trouble dealing with prior to his injury.
•
Since his accident, other than for a period of approximately eight months whilst employed with Linfox, he had been unable to obtain a permanent work position. He described the continuing restriction imposed upon him by his shoulder in the following terms:
“At the end of the day the most dramatic consequence for me is that virtually anywhere I am or whatever activity I or my friends are contemplating doing I have to stop and think, can I do this? Will this cause my shoulder to pop out? Will I do anything that will stop me being able to go to work tomorrow? I live like a person who has a permanent fence around my activities that I must be careful not to go over.”
6 In the course of his viva voce evidence, the plaintiff said that whilst his present position with Ballantine’s was casual, he now worked a 38-hour week for which he was paid at a rate of $21.00 per hour. He said he was happy with his position and the fact that he was working, that he intended to apply for a full-time position and that he believed that he was in a good position to be considered for a full-time position.
7 The plaintiff described limiting the movement of his hand so that he rarely went pass the “bus stop position”.[3] He said that he rarely reached out with an outstretched arm and that he preferred to keep his arm as close to his body as possible. He described spending his weekends doing very little, only watching television and watching DVDs, and that on Saturday he would go to his mother’s house and he would walk his dogs. He described being very limited in his ability to perform maintenance work at his mother’s house. He said he could mow the grass but that he could not “nail things”.
[3] He demonstrated the relevant position by holding his arm in the position which signalled a direction to stop.
8 He described attempting to return to heavy forms of work because he needed the money, but said that he had been unable to perform the tasks required.
9 He said he attended his local doctor, Dr Santo Bronchinetti, to obtain prescription medication and that his principal managing specialist had been Mr Miller. He said that he now made use of Mobic, an anti-inflammatory, and Panadeine Forte, and that he took this anti-inflammatory and two Panadeine Forte almost every day when he arrived at work.
10 He described his flatmate as doing virtually everything around the house, and that his housework was limited to doing his own laundry and preparing meals.
11 He said that before the accident he had been looking forward to returning to competitive cricket[4] and that he would have played with Bacchus Marsh. He said that he could no longer fish because he could not cast a rod and that he missed fly fishing and ocean fishing. He said he could not play golf because of the movement involved in the backswing of the golf club and that he was frustrated and disappointed by his inability to do such basic maintenance tasks for his mother as chopping wood, maintaining her car and maintaining her house.
[4] which he said he had not played for some eight years.
12 He described before the accident particularly enjoying working upon and with motorcars. He said he could do the mechanical work involved and that he had been working on cars since he was introduced, as a child, to that activity by his grandfather. He said that before the accident he would work on cars as often as he could, virtually every night. He said that his activities with respect to maintenance of cars were now limited to very basic activities such as changing oil.
13 He described not having much of a social life any more and being required to employ medication in order to get through a day’s work.
14 He was asked:
“You are now only thirty-four, how do you feel when people ask you to do things that other fellows are doing at your age or even older, that you’ve got to pull out?--
He responded:
“That’s annoying, how can I turn people down when they ask for help at work. That is a real issue. I’m a big boy. I was born with a decent body; I’m quite strong and to look at me you’d think I was capable of doing virtually anything and to actually have to turn around to somebody and say, ‘no, I can’t do it’, that’s an issue. For me it’s an issue.”
The Medical Evidence
15 There is little dispute in the medical evidence relied upon by the parties.
16 Immediately following the accident, the plaintiff attended at the medical practice of Dr James Chan, who diagnosed the presence of a sternoclavicular joint disruption.
17 In a report dated 19 June 2008, the plaintiff’s current general practitioner, Dr Bronchinetti, described the plaintiff’s prognosis as involving continuing pain upon lifting or upon the repetitive use of his right arm. He said that the plaintiff may develop secondary arthritis in his right sternoclavicular joint leading to increased pain and disability, and that this was most likely in the long-term. He described the plaintiff as not being fit for heavy physical work, such as the lifting of boxes.
18 Mr Russell Miller, the plaintiff’s treating orthopaedic surgeon, in a report dated 25 June 2008, described the plaintiff as suffering from an injury to his right sternoclavicular joint with subluxation of that joint. He said that the plaintiff had significant symptoms which fluctuated and that there appeared to be a pattern towards degeneration. He described the injury as being a complex one which was difficult to treat and that it carried a small chance of catastrophic complication.
19 In further reports dated 15 February 2010 and 2 March 2010, Mr Miller confirmed his previous opinions. He opined further that the plaintiff suffered from significant problems with his right shoulder, particularly the right sternoclavicular joint, which would impose long-term work limitations for him. He said that he would have difficulty with significant physical work which involved overhead activities with his right arm, would have difficulty with weights of more than 10 kilograms and would have difficulty with repetitive activity. He described these restrictions as being permanent.
20 In a report dated 26 May 2008, Mr Douglas Li, the plaintiff’s treating orthopaedic surgeon, obtained a history that the plaintiff suffered from constant pain in his right shoulder which he rated to be 2 to 3 out of 10 but which increased during work to 6 to 7 out of 10. The plaintiff told Mr Li that occasionally the pain was severe at 8 to 9 out of 10. Mr Li recorded that the plaintiff experienced pain mainly over the anterolateral aspect of his right shoulder and that this pain was mainly activity-related.[5]
[5] There is no suggestion in the report of Mr Li that the plaintiff’s reported level of symptoms were out of keeping with those which Mr Li would have expected as being associated with the plaintiff’s injury. In the circumstances, I accept the plaintiff’s description of his pain level as being accurate.
21 In a report dated 1 September 2008, Dr Li commented:
“With chronic right sternoclavicular joint disruption there may be deterioration of the condition in the long-term leading to further pain and a subsequent diminished function about the right upper limbs especially with physical duties.”
22 In a report dated 8 February 2010, Mr Stephen Doig, orthopaedic surgeon, described the plaintiff as suffering from a right sternoclavicular dislocation, in respect of which his prognosis was only moderate. He noted that the plaintiff continued to suffer from ongoing pain and swelling and he considered it certainly possible that the plaintiff’s condition would deteriorate further. He opined that the plaintiff would continue to have ongoing ache and pain in the area of the sternoclavicular joint and that this would result in a continued restriction in the range of movement of the plaintiff’s right shoulder.
23 Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff on a number of occasions on behalf of the defendant. On 15 June 2009, Mr Simm expressed the opinion that the plaintiff’s prognosis was for chronic symptoms of pain and instability in his right sternoclavicular joint. He said that these symptoms would interfere with the plaintiff’s ability to use his right arm for strenuous activity, particularly away from his body or in the overhead position.
24 In a report dated 16 February 2010, Mr Simm obtained from the plaintiff a history that he made use of Mobic and Panadeine Forte after driving to work and he employed Panadeine Forte again at the end of the day if his symptoms were troubling. He opined that as the result of his injury, the plaintiff suffered from chronic pain and irritability in the region of the right sternoclavicular joint, noting that an MRI scan had revealed the evidence of post-traumatic degenerative change in the joint. He described the plaintiff’s treatment as being confined to the use of analgesics and anti-inflammatory medication and commented that the plaintiff presented with a difficult clinical problem of an unstable but arthritic joint.
Findings as to the Consequences of the Plaintiff’s Injury
25 There little difference between the opinions expressed by the medical practitioners who have either treated the plaintiff or assessed him for the purpose of this proceeding. Ultimately I consider Mr Miller to be in the best position to opine upon the issue of the plaintiff’s prognosis, having regard to the fact that he is the plaintiff’s treating orthopaedic surgeon and that he has had the overall supervision of the management of the plaintiff’s injury.[6]
[6] The plaintiff was referred to Mr Miller by Dr Bronchinetti. Mr Miller assessed the plaintiff on a number of occasions and also referred him for further assessment to Mr Li and Mr Hoy, each of whom
26 Mr Miller’s opinion, to which I have already referred, that the plaintiff will continue to suffer from significant symptoms which will fluctuate and in respect of which there appears to be a pattern toward deterioration,[7] describes, in my view, a medical condition of considerable moment for a relatively young man. The fact that the plaintiff suffers from constant pain, which varies in intensity and requires him to make regular use of strong painkillers[8] in order to manage the activities involved in his present employment, reinforces the view which I have formed that the injury has had, and will continue to have, a significant impact upon his life.
[7] reported back to Mr Miller. Mr Miller also opined that there existed a small chance of a catastrophic complication.
[8] Panadeine Forte and Mobic.
27 It is clear that no medical treatment is available to the plaintiff other than pain management and I am satisfied that the fact that the plaintiff now only employs medical treatment for the purpose of obtaining prescription-strength medication to control his symptoms does not speak as to the fact that his condition has limited consequences upon his life, but rather upon the issue that treatment other than pain control has been ruled out.
28 Whilst the plaintiff has retained the ability to engage in restricted employment on a full-time basis, I accept that he has lost the ability to perform unrestricted heavy physical work. The plaintiff’s evidence that he enjoyed working with big machinery was not challenged. The plaintiff described himself as being capable of doing anything before the accident. The fact that he has, since the accident, been confined both to light forms of work and general activity, is clearly a matter of significance for him. That a large range of work is now precluded to the plaintiff is attested to by his experience in the workforce since his injury. The plaintiff’s evidence that but for his injury he would be able to earn more money than he presently does, was not challenged. In my opinion, these matters constitute significant losses to the plaintiff, notwithstanding the retention by him of his ability to undertake full-time work.
29 The lifestyle consequences associated with the injury as described by the plaintiff, namely the problems that he has with dressing, brushing his teeth, washing his hair and wiping his bottom are not inconsequential, involving as they do the most basic activities of day-to-day life. When these losses are considered together with the loss of the plaintiff’s ability to pursue his hobbies of working upon motorcars and of fishing; the impact of the plaintiff’s incapacity upon his lifestyle assumes even greater significance.
30 It is clear that when assessing whether the impairment consequences of an injury are serious, I am required to adopt the approach in which I consider
“not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what has been retained.”[9]
[9] See Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260, per Ashley JA at [27]
31 The plaintiff presented as a man of relatively simple tastes whose main interests involved activities of a physical nature, many of which are now precluded to him. Having undertaken the balancing exercise to which I have referred above, I am satisfied that the consequences to the plaintiff of the impairment in the function of his right shoulder are such that it is appropriate to fairly describe the level of the plaintiff’s impairment, when judged in comparison with other cases in the range of possible impairments, as being more than significant or marked and as being at least very considerable.[10]
[10] I am particularly cognisant of the fact that the evidence of Mr Miller suggests that there is no likelihood of any improvement in the plaintiff’s condition and that, if anything, the pattern will be one of deterioration.
32 In the circumstances, I am of the opinion that the plaintiff is entitled to the leave sought.
33 I will hear the parties as to the precise nature of the orders sought and upon the issue of costs.
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