Sullivan v Newtrends International Pty Ltd and VWA
[2011] VCC 975
•20 May 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT LATROBE VALLEY
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-04504
| LEANNE MAY SULLIVAN | Plaintiff |
| v | |
| NEWTRENDS INTERNATIONAL PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Morwell |
| DATE OF HEARING: | 9 May 2011 |
| DATE OF JUDGMENT: | 20 May 2011 |
| CASE MAY BE CITED AS: | Sullivan v Newtrends International Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 975 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – serious injury – s.134AB(38)(a) and (b) – left shoulder injury – pain and suffering only – relevant principles – whether “serious”.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with | Maurice Blackburn Cashman |
| Mr E J Delany | Gippsland Pty Ltd | |
| For the Defendants | Mr P D Elliot QC with | Minter Ellison |
| Mr J L Batten | ||
| HIS HONOUR: |
Introduction
1 By way of Originating Motion dated 6 October 2010, Leanne May Sullivan (“the plaintiff”) seeks leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”), to bring common law proceedings to recover damages for an injury to her left shoulder suffered by her on or about 1 October 2006 (“the injury”) arising out of or in the course of her employment with Newtrends International Pty Ltd (“the first defendant”).
2 The plaintiff seeks such leave to bring proceedings for “pain and suffering damages” only within the meaning of s.134AB(37) of the Act.
3 The plaintiff was represented by Mr P F O’Dwyer SC with Mr E J Delany of counsel, and the defendants were represented by Mr P D Elliott QC with Mr J L Batten of counsel.
4 The application was heard over one day and both parties tendered various documents.[1]
[1] See Annexure A
Relevant Legal Principles
5 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[2]
[2] See s.134AB(19)(a) of the Act
6 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act, which reads:
“serious injury means—
(a) permanent serious impairment or loss of a body function; ... .”
7 The part of the body said to be impaired for the purposes of paragraph (a) is the left shoulder. In opening, Senior Counsel for the plaintiff also indicated that he would seek to rely on a left elbow injury said to be a left epicondylitis which was said to be a sequel of a left shoulder injury.
8 In order to succeed, the plaintiff must prove on the balance of probabilities that:
[3] See s.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[4] See Barwon Spinners (op cit) at paragraph [33]
[5] See s.134AB(38)(a) and (b) of the Act. This test is sometimes referred to as the “narrative test”
(a) “the injury” suffered by her arose out of or in the course of or due to the nature of her employment with the first defendant on or after 20 October 1999;[3] (b) “the injury” and the resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4] (c) the “consequences” of the left shoulder impairment in relation to “pain and suffering” are, “when judged by comparison with other cases in the range of possible impairments ... may be fairly described as being more than significant or marked, and as being at least very considerable”.[5] 9 In determining the application, the Court:
(a)
must make the assessment of serious injury at the time the application is heard;[6]
(b)
notes that it has been observed that the question of whether any injury satisfies the definition of “serious injury” is largely a matter of impression and value judgment;[7]
(c)
must give reasons which are extensive and complete as the Court will give on the trial of an action, and in so doing, disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application.[8]
[6] See s.134AB(38)(j) of the Act
[7] See Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
[8] See s.134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566, at paragraphs [89]-[92]
•
She is a forty year old (born 24 March 1971) single woman living with her mother.
•
following further education and training:
She left school after completing Year 10 and since then has obtained the (b) 1993 - Nail technician course;
The Issues
10 I was informed by Senior Counsel for the defendants that the matter was proceeding as a “range” case – that is there being no issue that the plaintiff suffered a compensable injury with consequences but whether those consequences satisfy the requisite test for “serious injury”.[9]
[9] Transcript (“T”) 7, L13-14
11 I was also informed by Senior Counsel for the defendants that the defendants did not accept that the left elbow condition was part of the proceeding as there was no reference to the elbow in the Form A (which only lists the left shoulder, right knee, anxiety and depression), the Particulars of Injury (which only lists the left shoulder, and/or right knee and anxiety) and the draft Statement of Claim which relates to the left shoulder injury.
The Background of the Plaintiff, “the Injury” and Medical Treatment
12 The Court refers to the affidavits sworn by the plaintiff on 9 September 2009,[10] which I shall refer to as the “first affidavit”, and on 2 May 2011,[11] which I shall refer to as the “second affidavit”. The contents of these affidavits were sworn to be “true and correct”.[12]
[10] See Exhibit A at page 19 Plaintiff’s Court Book (“PCB”)
[11] See Exhibit A at page 24a PCB
[12] T 8, L23
13 By way of her first affidavit, the plaintiff gave the following evidence:
(c) 1994 - Bar course, Royal Hotel, Drouin; (d) 1995 - Computer business management skill share at Warragul; (e) 2002 - Office Skills GEST, Traralgon.
• Since leaving school, she has been employed as a cleaner, console operator, sales assistant and general customer services. • In about July 2005, she commenced employment with the first defendant, which is the proprietor of a business known as “Doughnut King” operating from a shop in the Mid-Valley Shopping Centre, Morwell. She was initially employed as a casual team leader for approximately twenty hours per week and on 16 March 2006, she was appointed the store manager, working forty hours per week. • Her employment duties with the first defendant included ordering stock, staff supervision (which consisted of four people) and customer service. • On 1 October 2006, she suffered injury to her left shoulder during the course of her employment with the first defendant. She describes the occurrence of the injury in the following terms: “… I was re-assembling a new drink machine which I had just cleaned. The machine had been delivered to the premises about 1 month earlier and had only previously been cleaned on only a few occasions. The machine was located on a bench top and prior to cleaning the machine I was required to release/unlock 2 clips in order to pull the barrel of the machine off the beaters. After I had completed my cleaning of the barrels with soapy water, I then replaced the barrels which sat above the machine and proceeded to lock the two clips back into position. To effect this manoeuvre I had to place my left arm above shoulder height and behind the barrels to hold them steady, while I applied pressure by pushing on the front of the machine to lock the clips in place. As I was endeavouring to complete the procedure and applying force with my left hand to steady the barrel, I felt a sudden pain and burning sensation in my left shoulder. … .”[13]
[13] Exhibit A at page 21 PCB
•
She continued to work following the injury with increasing pain in her left shoulder region causing her to consult her local general practitioner, Dr Thavarasah, on 23 January 2007.
•
Dr Thavarasah caused her to cease work, undergo physiotherapy and arranged for her to undergo an x-ray of her left shoulder on 25 January 2007 and an ultrasound of her left shoulder on 2 February 2007.
•
Because the shoulder pain did not improve, she was referred to the orthopaedic surgeon, Mr Malcolm Thomas, who arranged for her to undergo a MRI examination of the left shoulder on 18 July 2007.
•
Mr Thomas performed an arthroscopy operation on her left shoulder on 11 September 2007 at the Maryvale Private Hospital.
•
Because she continued to have a painful left shoulder after the arthroscopy, she was referred for a second opinion to the orthopaedic surgeon, Mr Matthew Evans, who arranged for her to undergo a further MRI examination on 7 December 2007.
•
She deposes that she was informed that the second MRI scan did not indicate any rotator cuff tear.
•
She deposes that she was advised by Mr Evans that he did not recommend any further surgery and that she could return to work on a limited basis provided she did not perform any overhead activity, heavy lifting or repetitive activity with her left arm.
•
She continued to have some physiotherapy until 11 April 2009, when the agent of the defendants terminated such treatment.
14 As at the date of her first affidavit, the plaintiff deposed that she was then currently employed by the Traralgon Bakery in customer service working fifteen hours a week for which she was being paid $225.00 gross per week, together with some partial payments of compensation.
15 Again, at the date of her first affidavit, the plaintiff described her then current condition to be:
•
to undergo pain on a daily basis whenever she performed movements of her left arm;
• unable to raise her left arm above shoulder height; •
having to sleep on her right side and if she rolls onto her left side during sleep, such movement results in pain, causing her to get up and take a Panadol or Nurofen (on occasions she uses a hot water bottle in an attempt to get back to sleep);
•
Because she is allergic to all anti-inflammatory medication, as well as Morphine and Cortisone, she is only able to take Nurofen as a painkiller, or Panadol Osteo;
•
She tends to drive the car as little as possible and when she does drive, she essentially drives with her right arm and rests her left arm on the lower part of the steering wheel;
•
Prior to “the injury” she was a very active person enjoying rock n’ roll and line dancing and used to dance every weekend at various Melbourne venues. Although she now attends on occasions just to listen to bands and occasionally dance in a low-key fashion, she no longer enjoys this activity as it requires movement of her left arm;
•
She has always been a “keen horse rider” and until the age of fifteen, she was a member of the Hallam Pony and Riding Club and used to complete in dressage and show jumping. At her present address, which consists of 5.75 acres, she was involved in riding ponies prior to the injury but feels that she would not get back to riding because of her shoulder. In particular, the plaintiff states:
“I find that pulling myself up into the saddle is difficult because of the pressure required in my left shoulder and arm, and I am fearful of being able to hold a pony if it ever became frightened and took off. … .”[14]
[14] Exhibit A at paragraph 11 page 23 PCB
• Prior to her injury, she was able to perform various activities around her property, including chopping firewood (which she is no longer able to do), fencing (which she is able to do on a minimal basis) and spray weeds with a backpack (16-litres, which she is no longer able to do and is forced to use a trolley on which the pump is placed which slows her down considerably). She can no longer mow lawns which are on a slope, and the agent of the defendants has provided a lawn mowing service. 16 By way of her second affidavit, the plaintiff gave the following evidence:
•
In July 2008, she commenced employment with the Traralgon Hot Bread Bakery in customer service, initially working ten hours a week, and during 1999, her hours increased to fifteen hours, and in January 2010, she commenced to work on a full-time basis of thirty-eight hours a week. At the time of her second affidavit, she was earning $608.00 gross for a thirty-eight-hour week.
•
She notes that her employers at the Traralgon Hot Bread Bakery are “extremely sympathetic and helpful to me since I was first employed”. In particular, she is not required to do any heavy lifting and avoids using her left arm as much as possible.
•
She also was employed by the “Donut King” in Traralgon from about September 2010 to March 2011 for two-and-a-half to three hours on a Monday.
•
She always feels aching to some degree in her left shoulder which increases on certain movements such as overusing her left arm or raising it above her head. On such occasions, she experiences a burning-type pain which extends down the outside of her left arm to the area of her left elbow.
•
She has “real difficulty” with nearly all movements of the left shoulder which has shown no improvement in recent years.
•
She tries to avoid using her left arm when possible and does not drive long distances.
•
She continues to have pain in the shoulder area when she rolls onto her left shoulder when in bed and has difficulty with many domestic duties such as hanging out clothes, personal washing and dressing. In particular, she cannot attach her bra at the back of her body due to restricted movement of her left shoulder.
•
She has to be very cautious when engaged in cleaning activities such as sweeping and making beds.
•
She and her mother also care for two very young children who have been placed with them by the Department of Human Services and lifting the children aggravates her shoulder pain.
•
After ceasing competing in horse show events in the early 2000s, she and her mother became involved in the breeding of horses, including miniature horses, and at one stage had twenty-eight horses on the property, including twenty miniature horses. She used to ride frequently up to the time of her shoulder injury and was “heavily involved” in looking after a large number of horses, including duties such as handling, feeding, exercising and stable mucking. In particular, the plaintiff deposes:
“Horses were the passion of my life and I really miss my great involvement with them. After I became injured, my mother had to take over most of the duties relating to the horses and it came to the stage where we started to sell them off. We now have 11 horses on the property, including 4 miniature horses. I now have great difficulty in even mounting a horse and I ride only intermittently. I even have difficulty in placing a rug on a horse, and in the winter each of the horses often wears 4 - 5 rugs.”[15]
[15] Exhibit A at paragraph 7 page 24d PCB
•
Prior to her left shoulder injury, she really enjoyed rock ‘n roll dancing and it was “the feature of my social life”. Such dancing involves constant movement of the shoulders. She had to give up such dancing as a result of her left shoulder injury and also because of her knee injury which she developed in the course of her employment in 2005.
•
She takes Panadol “as required” and has not undergone any physiotherapy since 11 April 2009 but was paid a further twenty sessions of physiotherapy following conciliation.
•
She is able to hold a hand-held spray when necessary on areas of the property but takes longer to perform such activity.
17 In a report dated 19 March 2007,[16] Dr G Thavarasah confirms that he initially examined the plaintiff on 24 January 2007 in relation to “left shoulder pain”. At that time, there was tenderness of the shoulder joint and restricted movement of the shoulder. He arranged an x-ray of the left shoulder on 25 January 2007 which was “normal” and an ultrasound of the left shoulder of 2 February 2007 which was also “normal”. She was treated by rest and Nurofen and was referred to physiotherapy.
[16] Exhibit A at page 29 PCB
18 Dr Thavarasah arranged for the plaintiff to undergo an MRI scan on 19 July 2007.[17] The scan reported:
“Partial thickness and supra spinatus tears on a background of tendinosis
with secondary subchondral cyst in the humeral head. Type II slap tear of the labrum with para-labral cyst.”[18]
[17] Exhibit A at page 40 PCB
[18] Exhibit A at page 40 PCB
19 The plaintiff was initially referred to the orthopaedic surgeon, Mr Malcolm Thomas, on 21 February 2002 but more recently on 31 August 2006 in relation to a right knee injury which he ultimately diagnosed to be some exacerbation of chondromalacia of the patella of the right knee. As at 2006, he considered the plaintiff capable of continuing to work with the first defendant in relation to her right knee condition.
20 The plaintiff was referred back to Mr Thomas in relation to her left shoulder injury and on 11 September 2007, Mr Thomas performed a left shoulder arthroscopy and subacromial decompression. I refer to the operation report[19] wherein Mr Thomas notes that he found an intact joint surface, intact labrum, biceps was intact, and the rotator cuff was intact. Furthermore, there were no loose bodies nor synovitis in the joint, and the subscapularis and supraspinatus were normal.
[19] Exhibit A at page 42 PCB
21 In a subsequent report dated 15 April 2008,[20] Mr Thomas noted that the plaintiff’s shoulder remained symptomatic with pain over the front, worse with some activity. As at 15 April 2008, the plaintiff had a full range of motion but was tender over the anterior aspect of the shoulder with no particular weakness or wasting noted.
[20] Exhibit A at page 45 PCB
22 Dr Thavarasah referred the plaintiff for a second opinion to the orthopaedic surgeon, Mr Malcolm Evans, on or about 16 November 2007. As at that date, she was approximately two months post-surgery and Mr Evans arranged for her to undergo a contrast enhanced MRI scan of the left shoulder on 10 December 2007.[21] The conclusion of such scan reads:
“1 Anterior acromioplasty has been performed with adequate glenohumeral distance. Minimal degenerative change is demonstrated in AC joint. Fluid is demonstrated in the subdeltoid bursa consistent with either post surgical change or moderate subdeltoid bursitis.
2 Diffuse increased signal intensity is seen throughout the supra and infraspinatus tendons consistent with moderate tendinosis. No partial or full thickness tear is seen.
3 No labral tear is seen and there is no SLAP tear.”
[21] See report of such examination - Exhibit A at page 53 PCB
23 Mr Evans describes such scan as confirming what Mr Thomas described at operation, with no evidence of rotator cuff tear, labral pathology or post- surgical change in the subacromial space. He considered that it was likely that she would make a good recovery from her surgery and could return to limited work avoiding overhead activity, no heavy lifting and no repetitive activity.
24 Her present general practitioner is Dr F Edwards, who confirms that she has a capacity for employment but should avoid significant lifting of weights or work above shoulder height. Furthermore, he notes that there is no active treatment planned for the plaintiff other than the application of heat ointment and a water bottle when the shoulder “aches”.
25 In her second affidavit, the plaintiff deposes that for the “last few months” she had experienced significant pain in her left elbow area and that her doctor, Dr F Edwards, had diagnosed the condition to be one of “tennis elbow”, and also in recent months he has treated her for a right carpal tunnel condition. The plaintiff notes:
“… I now have an ache in my elbow joint about 70 percent of the time. I can no longer chop wood, or use a chain saw to obtain wood and further I can no longer attend to fencing or other house repairs. In effect I am unable to now engage in outside work at home as a result of my disability, including lawn mowing.”[22]
[22] Exhibit A – paragraph 5 at page 24c PCB
The Cross-Examination of the Plaintiff
26 Under cross-examination, the plaintiff gave the following salient evidence:
•
Shortly prior to her injury, her hours of employment with the first defendant dropped to thirty-two hours per week as a result of the “boss” coming in on a Wednesday.
•
She presently works thirty-eight hours per week, working from approximately 4.00 am until midday. Her duties involve coffee making, sandwich making and customer service, and such work is similar to that which she was performing with the first defendant, save that she does not perform any managerial duties.
•
Her employment duties do not involve taking bread out of the ovens or putting them on the shelves.
•
She is naturally right handed and when making coffee on a cappuccino machine, she uses her left hand mainly for milk, so she does not have to lift it up, and her right hand for the coffee “plunging”.
•
She would make anything from thirty to fifty cappuccinos per day, depending on demand.
•
On arrival at 4.00 am, she would make up sandwiches and rolls for about an hour-and-a-half, with most of the ingredients already cut up.
•
She and her mother have the care of children, Signera, a seven-month- old baby girl, and Hollyann, a two-year-old girl. Both girls are the daughters of a relative of the plaintiff who is considered unfit to look after the children, and the Department of Human Services have permitted the plaintiff and her mother to undertake that task.
•
The baby has been with them since two weeks’ old and in particular, the plaintiff gave the following evidence:
Q: “So you’ve gone through the formal process and the children
are permanently with you?---A: Yes they are. Q: So from two days on the baby’s been with you?--- A: Yes, she has. Q: And your mother?--- A: Yes, she has. Q: And you think that this might continue, this arrangement?--- A: It’s a possibility, yes. It’s going back to the court later this
month.HIS HONOUR:
Q: And you want it to continue?--- A: Well if we don’t have them they go into a stranger’s care. Q: I see?--- A: Yes. MR ELLIOTT:
[23] T 17, L9-20
Q: So you’re willing to continue?--- A: Well, you’ve got to do the best thing for the child.”[23]
•
After coming home from work, the plaintiff cares for the children. Her mother, who is sixty-one years old, works two to three days a week from 2.15 pm to 4.15 pm or from 3.00 pm to 6.00 pm with Tri Youth, an after school program.
•
The plaintiff is involved with the normal care of the baby (who weighs about 9 kilograms), including bottle feeding, changing of nappies, lifting and bathing, and also lifts the two-year-old (who weighs over 13 kilograms) in and out of her cot.
•
She and her mother presently have four miniature horses on the property and intend to re-commence breeding such horses. She also has about eight other horses on the property which are “for showing” although they are also commencing to breed a couple of those horses.
•
The miniature horses are shown at various “shows” which could be at Melbourne, Geelong, Ballarat, Bendigo, Glengarry and Traralgon. When shows are held, it is necessary to “prep them” and she has assistance from her cousin who does most of that work. She also attends shows for the larger horses and the attendance at shows would depend on what classes of horse was going to be displayed.
•
She and her mother are members of a number of horse societies but her mother attends to all such paperwork.
27 When asked about the activities at the house, the plaintiff gave the following evidence:
Q:
“With your mother, has there been a longstanding division of duties in the household where you perform the outdoor tasks and she does most of the indoor tasks?---
A: Yes. Q: That’s a general description of what happens for the division of
labour?---A: Yes, it is. … Q:
The domestic duties around the house you, on an ad hoc basis, divide up where you do the outdoor stuff, your mother does the indoor, the cooking, the things of that nature?---
A: Yes. Q: But obviously you have to look after the children?--- A: Yes. Q: Indoors, you do that as well. The outdoor tasks that you do is the
gardening, you can do that … the gardening?---A: Yes, we get a gardener in. I used to do it but now I don’t do it
now.HIS HONOUR:
Q: Why not?--- A:
Because our property is on the thing you’ve got to sort of get down on your hands and knees on some of it and pull the weeds and stuff out. Yes.
Q: What problems does that cause?--- A: Well just the stretching motion. I can do it for a little while but I
can’t sort of do it ongoing.Q: Is this with your left arm?--- A: Yes. If I use my right arm too much it aches, you’ve just got to do
what you’ve got to do unfortunately. … .”[24][24] T 23, L9 – T 24, L2
•
She has a ride-on mower which she can use on the flatter parts of the property but not on the hillier part.
• Her mother has “prolapsed discs”. •
She feeds some of the horses in the afternoon after coming back from work and that involves taking the string of a bail of hay, taking some of the hay and giving them to the horses. Also, she replenishes horse buckets with grain, largely through the operation of her right hand. The horses are not stabled and it involves her walking up to 300 metres in various parts of the property.
•
The bag of grain weighs about 25 kilograms and is placed into her car at the feed shop and she rolls it out of the car onto a trailer when at home.
•
The horse rugs which have to cover the horses weigh anything from a couple of kilograms up to “maybe 5 kilos max.”.
•
She accepted that she could ride a horse although she has not done it for a “while”. However, the exercising of horses is difficult, particularly with young horses, and she would be unable to perform “lunging” because the lunging rein is held in the left hand. In particular, she was asked about this activity:
Q: “Do the horses need exercising?--- A: They should get exercise, yes. Q: You can do that?--- A:
It depends on the horse. I’ll be honest, it depends on the horse. If it’s a horse – like it’s a young horse – they tend to have no brains, very skittish. I wouldn’t even enter – sort of even think about doing it because you’ve got to hold the rein with one hand and they run around, it’s called lunging, and I wouldn’t be able to hold a horse in each hand.
HIS HONOUR:
Q: Why couldn’t you do that?--- A: Because if they get a fright or they’re not used to it, they can
very easily pull you around a paddock.Q: Just tell me – spell it out for me – what’s the problem?--- A: You’ve got to hold what they call a lunge rein in your left
hand.Q: Yes, I understand that. A: And a whip and the horse runs around, it’s called lunging. Q: And you say the horse takes off, what’s the problem for
you?---A: Well I have to run with it; you just can’t let it go and get
wrapped around the lead rein.Q: Does it affect in any way your left shoulder?--- A: Yes it does, because I hold the rein with my left hand. Q: I see, and how does it affect your left shoulder – in what
way?---A:
Well if the horse is not going in a smooth circle and it gets a fright or something, it could easily pull you and you rope, and you get rope burn; you get pulled around the paddock.”[25]
[25] T 20, L20 – T 21, L15
•
She stopped line dancing in about 2003 and thereafter went to “rock ‘n roll”. Her right knee, which has been a problem from about 2001 or 2002, causes problems with her line dancing and rock ‘n roll. However, in relation to her left arm, she gave the following evidence:
Q: “What’s the difficulty though with your left arm in relation to
rock ‘n roll?---A:
With rock ‘n roll your arms can go, the back of you and twist, you’ve got to go underneath the other person’s arms, twist around behind them, under their legs, everything.
Q: Can you do that at all these days?--- A:
I had my birthday not long ago and I had a rock ‘n roll band, sorry, a country band, and I tried to rock ‘n roll for five minutes and I had to sit down.
Q: Give me an idea prior to 2006 how often were you attending
rock ‘n roll places?---A: Every Saturday night and I’d have a class once a week. Q: Had that been going since 2003?--- A: About twelve months, fourteen months maybe. Q: Twelve months, I see?--- A: Yes, yes, yes. Q: Thank you. A: Loved it, loved rock ‘n roll, love it.”[26] [26] T 32, L22 – T 33, L6
28 The plaintiff was shown video film taken on 16 April 2011, 19 April 2011 and 20 April 2011. Such video showed the plaintiff at the Traralgon shop preparing sandwiches and the like and serving customers. In particular, the video showed her using her left arm to arrange things in the car, holding her mobile phone in her left hand and when driving, seemingly had both hands on the steering wheel, and perhaps at one stage having her left hand only on the steering wheel.
29 She associates with friends over the weekend. Over a period of about four weekends she might go out for one or two of those weekends which might include visiting friends or going out for dinner. She has not been to a rock ‘n roll dance for “probably two years”.
30 At the end of cross-examination, the Court made certain enquiries of the plaintiff as follows:
Q: “In relation to your left shoulder, as far as you’re concerned, do
you have any restriction of movement in your left shoulder?---A: I’ll be honest, I can do a lot of things, but whether I do it pain-free,
no.Q: What type of activities with your left shoulder gives you the worst
pain?---A: Pushing, pulling, stretching above shoulder height. Q: Above shoulder like …. A: Twisting behind my back. Q: Can you reach up to a clothesline without causing difficulty?--- A:
Well I had to hang my clothes out the other day and one part – because our backyard’s on a slant, I turned it round to the highest thing, stood on my tippy toes and had to hang the washing out. I don’t do it without pain.
Q:
In relation to the pain that you do have, what do you say, is it something which is there all the time or some of the time or it comes on with activity, or what?---
A:
Activity aggravates it more. Most of the time it’s just got like this: pain, sort of throbbing pain – not throbbing pain I suppose, or aching pain.
Q:
And finally, just give me some indication in relation to the horse riding. From what I can gather you have had a love of horses ever since you were a child, is that right?---
A: Yes. Q: If you can talk in terms of if the left shoulder wasn’t there, how
frequently would you ride normally?---A: Heaps. Q: What does that mean?--- A: Very often, very often. Q: Daily, weekly, monthly?--- A: Probably weekly, yes. Q: How often do you ride now?--- A: I haven’t ridden a horse for a long time. The last time I went to
get on a horse was about eight, nine months ago.Q: And why is that?--- A: I couldn’t put myself in the saddle. I fell straight on the ground. Q: Because of what?--- A: Just the pain I had. The horse stood on me actually. Q: The pain in your shoulder?--- A: Yes.”[27] [27] T 40, L26 - T 41, L29
31 In re-examination, the plaintiff was asked particularly about the number of Panadol that she might use. The following evidence was given:
Q: “On an average in a week, what’s an approximate average for the
number of Panadol you might use?---A:
It might be, maybe – I don’t know, seven day, it may be a packet of eighteen, sorry, a packet of twelve or maybe a packet of twenty- four. It just depends. If I’ve been at work obviously my arm aches more at the end of the day because I’m using it more at work. As to – like today – I haven’t done anything. It’s just got this like aching sort of thing from sitting still. If I was at work it would be more ‘boom boom boom’ sort of thing.”[28]
(sic) [28] T 41, L31 – T 44, L9
Medico-Legal Reports
32 The solicitors for the plaintiff arranged for the plaintiff to be medico-legally examined by the following doctors:
[29] See report dated 5 August 2009 – Exhibit A at page 54 PCB
[30] See report dated 15 November 2010 – Exhibit A at page 58 PCB
[31] See report dated 7 December 2010 – Exhibit A at page 61 PCB
(a) Mr P Kudelka, orthopaedic surgeon, on 4 August 2008[29] and on 9 November 2010;[30] and (b) Associate Professor N Wallin, an occupational health specialist, on 7 December 2010.[31] 33 In his first report, Mr Kudelka diagnosed rotator cuff degenerative changes in the left shoulder unrelieved by arthroscopic surgery, giving rise to an impairment of the left shoulder due to pain, weakness and restriction of movement which he considered to be permanent. After his final examination, Mr Kudelka was of the opinion that the impairment of the left shoulder impacted on the plaintiff’s capacity for work which will be restricted in physical activities, particularly lifting in excess of 5 kilograms with the left arm, and any forceful movements at or above the horizontal with the left arm.
34 Associate Professor Wallin was of the opinion the plaintiff had suffered injury to her left shoulder joint region and continued to have –
“…significant ongoing disability relating to her left shoulder joint region, that is she does have a significant diminished range of motion of her left non-dominant shoulder joint. … .”[32]
[32] Exhibit A at page 69 PCB
35 The solicitors for the defendants arranged for the plaintiff to be medico-legally examined by the following doctors:
(a) Mr P G Nelson, general surgeon, on 22 February 2007[33] and on 16 July 2007;[34] (b) Mr Clive Jones, orthopaedic surgeon, on 15 November 2007[35] and on 5 April 2011;[36] (c) Mr Michael Shannon, orthopaedic surgeon, on 26 February 2008,[37] 2 February 2009[38] and on 10 May 2010;[39] (d) Mr J F O’Brien, orthopaedic surgeon, on 29 July 2008;[40] (e) Dr R Lefkovits, physician, on 18 August 2008,[41] 5 March 2009[42] and on 14 April 2001.[43] [33] See report of same date – Exhibit 2 at page 90 Defendants’ Court Book (“DCB”)
[34] See report of same date – Exhibit 2 at page 95 DCB
[35] See report dated 24 June 2010 – Exhibit 2 at page 101 DCB
[36] See report dated 12 April 2011 – Exhibit 2 at page 104 DCB
[37] See report dated 3 March 2008 – Exhibit 2 at page 107 DCB
[38] See report of same date – Exhibit 2 at page 112 DCB
[39] See report dated 11 May 2010 – Exhibit 2 at page 116 DCB
[40] See report dated 6 August 2008 – Exhibit 2 at page 119 DCB
[41] See report dated 19 August 2008 – Exhibit 2 at page 130 DCB
[42] See report dated 6 March 2009 – Exhibit 2 at page 134 DCB
[43] See report dated 18 November 2011 – Exhibit 2 at page 150 DCB
36 The examinations undertaken by Mr Nelson all pre-dated the arthroscopy on 11 September 2007. When first seen, he considered that the plaintiff had suffered injury to her left shoulder on or about 1 October 2006 which appeared to be a rotator cuff problem based on his examination findings. By his last examination, Mr Nelson had the MRI scan undertaken on 18 July 2007 which reported a partial thickness tear in the supraspinatus tendon.
37 When initially seen by Mr Jones on 15 November 2007, a reading of the report would suggest that he was more concentrating on her right knee problem which he diagnosed to be “patella chondromalacia”. Examination at that time did involve a “stiff left shoulder” which he suspected was due to some exaggeration.
38 When seen on 5 April 2011, Mr Jones noted the function of the left shoulder had improved substantially since his last examination although there was impingement at the midpoint of abduction at approximately 90 degrees. At that time she was able to actively abduct the left arm to 130 degrees. Mr Jones was of the opinion that the plaintiff had clear evidence of an abnormality in her left shoulder, with shoulder tendonitis and clinical evidence of a chronic impingement as a result of her left shoulder injury. He believed that the plaintiff would continue to experience shoulder joint pain.
39 When initially seen on 26 February 2008, Mr Shannon was of the opinion that the plaintiff was suffering from rotator cuff degeneration in her left shoulder, rendered symptomatic by her work injury and giving rise to “genuine ongoing restriction in her activities, particularly activities above shoulder level”. He considered her restricted in the performance of strenuous repetitive work involving the left arm, particularly heavy lifting and above shoulder level.
40 When seen on 2 February 2009, Mr Shannon noted mild evidence of impingement and continuing wasting of her left shoulder girdle and again commented that the plaintiff was capable of work which did not involve strenuous repetitive use of the left arm, heavy lifting or work above shoulder level.
41 When last examined by Mr Shannon on 10 May 2010, he notes that the plaintiff had “an ongoing and apparently genuine problem in her left shoulder”,[44] together with evidence of impingement causing her to be “permanently restricted in the performance of work involving strenuous repetitive use of the left arm, heavy lifting or significant work above shoulder level”.
[44] See Exhibit 2 at page 117 DCB
42 When seen on 29 July 2009, Mr O’Brien noted “quite significant restriction” of all movements of the left shoulder which he found on the basis of the second MRI findings. He thought at the time there may well be some non-organic component affecting the physical findings. Notwithstanding, Mr O’Brien considered the plaintiff would not be capable of unrestricted, heavy physical activities as a result of her left shoulder injury.
43 When initially seen by Dr Lefkovits on 18 August 2008, he diagnosed the plaintiff to be suffering a rotator cuff tendinopathy involving the left shoulder brought about by her work aggravating previously asymptomatic degenerative changes in her rotator cuff tendons. At that time, he considered there may be non-organic issues which were perpetuating the symptoms but noted that once injured, the rotator cuff may remain symptomatic long-term.
44 When re-examined on 5 March 2009, Dr Lefkovits found significant reduction of abduction and flexion of the left shoulder with some minimal wasting of the shoulder girdle. At that date, Dr Lefkovits comments that the plaintiff continued to suffer a painful arc syndrome due to established rotator cuff tendonopathy.
45 When last seen on 14 April 2011, Dr Lefkovits noted that the plaintiff was a pleasant, co-operative and seemingly genuine woman. Examination of the left shoulder revealed “marked limitation of forward flexion, abduction, external rotation, both active and passive” with pain being a limiting factor. He also noted that there appeared to be no crepitus on movement, no grinding and no impingement. In his report, Dr Lefkovits states, in part:
“The worker’s condition has stabilised. She continues to have rotator cuff tendinopathy, which is symptomatic and significantly limiting left shoulder limb function, as noted on previous examination. The diagnosis has been confirmed both by MRI and arthroscopy. She has had appropriate treatment. Ongoing management will basically be symptomatic with the occasional Panadol and continued home exercises. … She requires no specific treatment for her shoulder. She could undertake other occupations which do not require forceful repetitive use of the left upper limb, particularly at or above shoulder height.”[45]
[45] See Exhibit 2 at page 150 DCB
Analysis of the Evidence
46 I am satisfied the plaintiff suffered a compensable left shoulder injury arising out of or in the course of her employment on 1 October 2006. Furthermore, I am satisfied that such injury has resulted in some permanent impairment giving rise to physical symptoms. So much is not disputed by the defendants.
47 As pointed out by Senior Counsel for the defendants, Mr Thomas, when performing the left shoulder arthroscopy and subacromial decompression on 11 September 2007, found an intact joint surface, intact labrum, intact biceps and intact rotator cuff with no loose bodies nor synovitis in the joint. Furthermore, on follow-up on 15 April 2008, Mr Thomas found the plaintiff to have a full range of motion but was tender over the anterior aspect of the shoulder with no particular weakness or wasting noted.
48 Mr Malcolm Evans, who examined the plaintiff for a second opinion, noted that the contrast enhanced MRI scan of the left shoulder on 10 December 2007 essentially confirmed the findings of Mr Thomas described at operation.
49 Although the pathology is not dramatic, the orthopaedic surgeons, Mr P Kudelka, Mr C Jones, Mr M Shannon, and the occupational health specialist, Associate Professor Wallin, and the physician, Dr Lefkovits, all considered that the plaintiff had a genuine ongoing problem in her left non-dominant shoulder involving tendonitis and/or chronic impingement and/or symptomatic rotator cuff tendinopathy. The consensus of opinion is that such symptoms cause restriction of the left shoulder and inhibit her from engaging in work involving frequent use of the left arm, working with the left arm above shoulder height, and work involving repetitive pushing and lifting with the left arm.
50 The plaintiff has resumed full-time employment and is performing similar duties to that when employed by the first defendant, save that she has no managerial duties. However, it is to be noted, that she deposes that her present employer is “extremely sympathetic” to her condition and she is not required to do any heavy lifting and avoids using her left arm as much as possible.
51 I found the plaintiff to be a frank and credit-worthy witness who on occasion, effectively made admissions against her interest in relation to the consequences of her left shoulder injury. In such circumstances, I do more readily accept her assertions of the various difficulties that she does have in relation to her left shoulder during her day-to-day activities.
52 In particular, the video material, although revealing her to use the left hand on occasion when driving and handling various objects, does not, in my view, diminish her credibility in any way. I should point out that Senior Counsel for the defendants quite appropriately, in my view, did not challenge the credit of the plaintiff but essentially submitted that taking all of the evidence into account, the plaintiff, although having some physical consequences, such consequences do not satisfy the requisite test for “serious injury”.
53 In relation to this critical issue, I am assisted by several Court of Appeal decisions:
(a) Stijepic v One Force Group Aust Pty Ltd & Anor[46] wherein Ashley JA and Beach AJA, by way of dicta, stated: [46] [2009] VSCA 191 (delivered 14 August 2009)
“… The emphasis in s 134AB (37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that 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. The spectrum is not established simply by fastening upon a case or two in which the applicant has failed.”[47]
[47] Stijepic (op cit) paragraphs [40] – [42]
(b)
In Stijepic, Ashley JA and Beach AJA also referred to Dwyer v Calco Timbers Pty Ltd (No 2)[48] wherein it is stated:
[48] [2008] VSCA 260
“… the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”[49]
[49] Dwyer (op cit) at paragraph [27]
(c) I also refer to the dicta of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd[50] wherein his Honour stated: [50] [2006] VSCA 292
“… If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are ‘at least very considerable’. … .”[51]
[51] Sumbul (op cit) at paragraph [24]
In Stijepic, Ashley JA and Beach AJA commented, in relation to those
words:“So far as the respondents’ final submission is concerned, it is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered. … .”[52]
(d) I also refer to Sabo v George Weston Foods[53] wherein Neave and Mandie JJA made reference to the decision of Transport Accident Commission and O’Dea v Dennis[54]and adopted the words of Callaway JA when he discusses the weight which must be given to the adverb “very” in the words “at least very considerable”. Callaway JA stated: “… many … [impairments] are considerable, in the sense that they are important or substantial, without being very considerable … .”[55]
[52] Stijepic (op cit) at paragraph [47]
[53] (op cit) at paragraph [73]
[54] [1998] 1 VR 702
[55] See Transport Accident Commission & O’Dea v Dennis (op cit) at page 703
(e)
I also refer to Haden Engineering Pty Ltd v McKinnon[56] wherein Maxwell P stated that the concept of “a pain and suffering consequence” encompasses both a 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.[57]
[56] [2010] VSCA 69
[57] See Haden Engineering Pty Ltd (op cit) generally at paragraph [9]
54 I make the following findings of fact;
(a)
The plaintiff’s capacity for employment is slightly diminished in that she is unable to perform work involving constant or repetitive use of the left arm or the use of the left arm above shoulder height;
(b)
The plaintiff does experience continuous minor aching in the left shoulder region which is made worse through activity involving the left arm. Her treatment is limited to symptomatic pain relief and in particular, through medications such as Panadol;
(c)
The plaintiff has pain in her left shoulder area when she rolls onto the left shoulder when in bed at night, causing her to wake up;
(d)
The plaintiff has difficulty with many domestic duties such as hanging out clothes, personal washing, dressing and the performance of cleaning duties such as sweeping and make beds;
(e)
The plaintiff has not been able to pursue her passion of riding horses which she used to enjoy at least weekly prior to her injury but now has largely avoided such activity because of her shoulder injury;
(f)
In breeding the horses on the property, she has difficulty placing rugs over horses and is inhibited in the way that she can perform the feeding of the horses;
(g)
The plaintiff is unable to be engaged in rock ‘n roll dancing which she frequently enjoyed prior to her injury. She is unable to perform such dancing because the left arm is in motion throughout such dancing. Prior to her injury she attended rock ‘n roll dances about once per week.
55 It is clear enough that the plaintiff and her mother have volunteered to care for a very young baby and a toddler whose mother was declared unfit to look after such children. I accept that the activities involved in looking after such young children, which would mostly fall on the plaintiff, would almost certainly involve the use of the left arm in bathing, changing nappies, lifting the children in and out of baths, cots and cars.
56 Having observed the plaintiff give evidence about the reasons why the children were “taken on”, I formed the opinion that such activity adds to the consequences for the plaintiff rather than suggests that she has a reasonable capacity to perform such activity. By this I mean, the plaintiff seemingly has taken on the children knowing that she will experience greater symptoms in the shoulder because, as she said: “If we don’t have them they go into a stranger’s care”.
57 I also accept that the rock ‘n roll dancing described by the plaintiff after her injury may well have also been impacted by ongoing right knee symptoms. However, the evidence does establish that the plaintiff was rock ‘n roll dancing up to the date of her left shoulder injury, and applying the general principles enunciated in Dressing v Porter & Anor[58] and Acir v Frosster Pty Ltd[59], the Court, at serious injury level at least, is only concerned with whether or not the compensable injury contributes to the consequences claimed by the plaintiff.
[58] [2006] VSCA 215
[59] [2009] VSC 454
58 Many of the consequences taken in isolation do not, in my view, satisfy the requisite test. However, I do consider that it is a significant loss to a single woman not being able to pursue her passion for horse riding and indeed pursue her social outlet of rock ‘n roll dancing.
59 After a consideration of all of the evidence, I am of the view that this is a lineball case but ultimately taking into account all the consequences suffered by the plaintiff as a result of her left shoulder injury, I am satisfied that such consequences, when judged by a comparison with other cases in the range of possible impairments can be fairly described as being “more than significant or marked” and as being at least “very considerable”.
60 Accordingly, pursuant to s.134AB(16) of the Act, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages in respect to a left shoulder injury suffered by her on 1 October 2006.
61 In forming such conclusion, I should point out that I have not taken into account any problems in the left elbow and make no findings one way or the other whether such alleged elbow injury is a sequel to the left shoulder injury.
- - -
Annexure “A”
1 The plaintiff tendered the following material:
(a) Exhibit A, consisting of the following documents: • Affidavits of the plaintiff sworn 9 September 2009 and 2 May 2011; •
Various radiological reports including an x-ray of the left shoulder dated 25 January 2007 and an ultrasound of the left shoulder dated 2 February 2007;
•
Reports from Dr G Thavarasah dated 7 February 2007; 19 March 2008 and 10 May 2007;
•
Reports of Mr A Yates dated 10 May 2007; 17 August 2007 and 31 July 2008;
• A report of Mr S Rueda dated 28 May 2007; •
An MRI of the left shoulder dated 18 July 2007, together with an x-ray of both knees dated 26 July 2007;
• Operation report of Maryvale Private Hospital dated 11 September 2007; •
Medical reports of Mr M Thomas, orthopaedic surgeon, dated 15 November 2007 and 15 April 2008;
•
Medical reports of Mr M Evans, orthopaedic surgeon, dated 16 November 2007 and 14 December 2007;
•
Medical reports of Dr F Edwards dated 28 November 2007 and 13 April 2011;
• Medical reports from Symbion Imaging, both dated 10 December 2007; •
Medical reports from Mr P Kudelka, orthopaedic surgeon, dated 5 August 2008 and 15 November 2010;
•
Medical report from Associate Professor M Wallin, occupational physician, dated 7 December 2010;
All such material is contained at pages 19-73 of the Plaintiff’s Court Book.
2 The defendants tendered the following material:
(a) Exhibit 1: •
Video footage taken of the plaintiff on 16 April 2011; 19 April 2011 and 20 April 2011
(b) Exhibit 2: •
Medical reports from Mr P Nelson, general surgeon, dated 22 February 2007; 8 March 2007; 15 March 2007 and 16 July 2007;
•
Medical reports from Mr C Jones, orthopaedic surgeon, dated 15 November 2007; 27 February 2008 and 12 April 2011;
•
Medical reports from Mr M Shannon, orthopaedic surgeon, dated 3 March 2008; 11 March 2008; 2 February 2009 and 11 May 2010;
•
Medical report of Mr J O’Brien, orthopaedic surgeon, dated 6 August 2008;
•
Medical reports from Dr R Lefkovits, physician, dated 19 August 2008; 8 December 2008; 6 March 2009 and 18 April 2011;
•
Letters from Mr M Thomas to Mr Michail dated 21 January 2002 and to Dr G Thavarasah dated 15 April 2008;
•
Operation report from the Maryvale Private Hospital dated 11 September 2007.
All such material is contained at pages 90-123, 130-135 and 146-153 of the
Defendants’ Court Book.- - -
0
10
0