Tanner v Amcor Limited
[2014] VCC 1272
•30 July 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-05070
| GEOFFREY TANNER | Plaintiff |
| v | |
| AMCOR LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 July 2014 | |
DATE OF JUDGMENT: | 30 July 2014 | |
CASE MAY BE CITED AS: | Tanner v Amcor Limited | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1272 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the left shoulder – pain and suffering damages only
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR; Transport Accident Commission v Kamel [2011] VSCA 110
Judgment: Leave granted to bring proceedings for the recovery of pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Belmar | Maurice Blackburn Lawyers |
| For the Defendant | Mr B McKenzie | Thomson Geer |
HIS HONOUR:
1 This application pursuant to s134AB(16) of the Accident Compensation Act 1985 (“the Act”) relies on an injury to the left shoulder injury and a consequential impairment of that shoulder. Leave is sought to bring proceedings for the recovery of pain and suffering damages only.
2 The plaintiff is aged fifty years and married with three children. He is a factory worker by occupation. He is a physical man in terms of his interests. He left school at year 9. He underwent an apprenticeship to qualify as a butcher and qualified. His only qualification indeed is in that very physical trade of butchering.
3 He commenced work with the defendant at its factory in 1995. He worked on a repetitive process line job and sustained injury in the course of his employment. In particular, on 29 January 2010, while attending to a hose leak he experienced pain in his left shoulder.
4 In an application such as this, it has often been said that the test involves elements of fact, degree and value judgment.[1]
[1]Humphries & Anor v Poljak [1992] 2 VR 129 at 167 and Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph [3]
5 I found the plaintiff a very matter-of-fact and straightforward witness. Even doctors engaged by the defendant had no criticism of him at examination or in the clinical context.[2] In fact, he was noted to have behaved normally and calmly. If anything, the plaintiff had a very stoical attitude to his continuing shoulder symptoms that required Panadol every night and prescription anti-inflammatories two to three times a week.[3]
[2]Defendant's Court Book (“DCB”) 21, 25, 30, 37, 41, 45 and 50
[3]Transcript (“T”) T29- 30
6 I accept his evidence about daily pain and stiffness being constant. I also accept his evidence that this affects the very heavy reel work he does 50 per cent of his night shift.[4] This work involves manoeuvring 2 to 3-tonne weight paper rolls up to eighty or ninety times a shift.[5] I also accept his evidence that he does not do all the overtime he would otherwise do on account of shoulder symptoms.
[4]T23 and T38
[5]T23-24
7 I find his keenness to play golf, which is his only form of sport, has now become a real struggle to play. He has lost that enjoyment. I accept he cannot play golf as he would like to play. He is limited to nine holes only. Golf can be a lifelong sport and can be played well into old age. He no longer enjoys it and due to not being able to play 18 holes, has not pursued his interest of joining a club.[6]
[6]Plaintiff’s Court Book (“PCB”) 12, 17 and T36
8 I also accept his evidence about lost enjoyment from gardening, camping trips and long driving. These are all very considerable consequences for him as a family man and being physically very active by nature.[7]
[7]PCB 17
9 I accept his sleep is also affected to a degree by shoulder symptoms, as well as by being a shift worker who finds sleep difficult anyway.[8]
[8]PCB 13 and 16; T31-32
10 There is really a single discrete issue in this case in view of the admitted permanent compensable injury. Can the consequences attributable to the impairment of the shoulder be fairly described as being at least very considerable when judged by comparison with the range of possible impairments in other cases? In my view, they can be fairly described as “very considerable”.
11 The treatment has been extensive but really to little or no avail. I do not accept the defendant’s argument that the treatment has been modest. He has been treated at two different local general practitioner clinics. He has tried at least three different types of medication involving anti-inflammatories and analgesics. He has undergone physiotherapy.[9] An MRI scan of 27 March 2010 showed a number of sites of damage to the shoulder.[10]
[9]PCB 25-26
[10]PCB 34-35
12 He was then referred to two treating orthopaedic surgeons. The first, Mr T Nguyen, tried an approach by way of injection treatment.[11] The second surgeon, Associate Professor M Richardson, recommended surgery. The plaintiff agreed to it and on 6 July 2010, he was found on the operating table to have widespread pathology. This involved articular tears with a high-grade 1 in the supraspinatus. His subacromial space showed significant bursitis. An acromioplasty and bursectomy were performed. An excisional arthroplasty of the degenerate AC joint was performed. The high-grade partial tear was repaired through a deltoid split and biodegradable anchor.[12] In spite of the surgery and three months’ rest off work, as well as a rehabilitation program, there were still signs of impingement found by Associate Professor Richardson in October 2010. Hydrotherapy was recommended with a gym-based strengthening program. The surgeon then administered further injection treatment by way of local anaesthetic and Depo-Medrol.[13] As a later doctor summed up in April 2014 after recording all the plaintiff's treatment, “Nonetheless, he has residual symptoms”.[14]
[11]PCB 10, 27-28
[12]PCB 30
[13]PCB 33
[14]PCB 43
13 The plaintiff got back to normal duties, but with symptoms, in about May 2011. He has worked on performing full-time nightshift duties since, but he does not do all the overtime he otherwise would and which is available to him on account of shoulder difficulties. He has maintained his income with nightshift allowances assisting in that regard. This is a credit to his motivation and stoicism. It does not indicate a lack of symptoms given this man’s nature and determined personality.
14 The Court is reminded he is not to be treated less favourably for putting up with pain and getting on with work and his life generally.[15] At the heart of this application is my finding that he puts up with daily shoulder pain and stiffness that still require medication.[16] It is four years since his operation. I find, on the probabilities, these symptoms will last for the foreseeable future in terms of constant pain and stiffness.
[15]See Transport Accident Commission v Kamel [2011] VSCA 110 at paragraphs [67]-[68]
[16]T33
15 I note the repeal of s134AE of the Act and the Explanatory Memorandum and Second Reading Speech that accompanied that repeal. Nevertheless, clear, proper and precise reasons are required. However, in the circumstances of this case where there is very little by way of medical debate, if any, it is not necessary for me to go into the medical reports in great detail.
16 A number of the medical reports now are quite dated. My task, of course, is to evaluate the consequences now, in June 2014. Most assistance is gained from the current opinions. Before moving to them, perhaps of singular importance is the very recent MRI of 29 May 2014. It speaks for itself. It showed the tendinopathy, bursal surface tear in the infraspinatus at the tendon insertion, as well as articular surface tear of the suprascapularis tendon. That was a full-thickness tear. Degeneration was suggested in the superior labrum. Fluid was demonstrated in the subacromial bursa consistent with subacromial bursitis.[17] This radiology could hardly be more current. The plaintiff, on any view, has very real pathology in his left shoulder that more than explains his impairment and his current symptoms.
[17]PCB 36-37
17 The general practitioner, Dr L Siow, last reported in June 2014, and he said the new MRI was consistent with the shoulder pain. His last comment was about “… his poor recovery from his shoulder injury”.[18]
[18]PCB 21
18 The physiotherapy report is quite out of date, having been written in 2011. However, even then it stated:
“To ensure no future shoulder injuries, it’d be advisable to not return to pre-injury duties and carry out duties that do not require extremes of shoulder movement.”[19]
[19]PCB 24
19 His work with the heavy rolls of course does involve such extremes, as would playing golf. The plaintiff determinately continues to do both. He pays for them with pain and lost enjoyment of life.
20 The two treating orthopaedic specialists have not seen the plaintiff since 2010.[20] They are of little help in assessing consequences now, except it is clear that treatment has really been exhausted. The plaintiff is left with the probability that he has a permanent condition when all of the medical evidence is looked at.
[20]PCB 27-33
21 Medico-legal evidence from Mr M Fogarty, orthopaedic surgeon, is also very current. He reported in April 2014 and put real restrictions on lifting, stressful shoulder movement and repetitive use of the arm above shoulder level. These are permanent restrictions. They impact obviously not only on a man’s work as a factory hand but on many aspects of daily home and recreational life that we take for granted.[21] The consequences in terms of loss of enjoyment of life are very considerable when one looks at those restrictions that Mr Fogarty puts on the plaintiff. Unfortunately for him, no treatment will alter the situation.
[21]PCB 41
22 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, also saw the plaintiff in April 2014. He found many signs consistent with shoulder injury at examination.[22] He diagnosed about four areas of pathology. There was also weakness in the left shoulder girdle. He thought further investigation was advisable.[23]
[22]PCB 43
[23]PCB 44
23 A further MRI scan of 29 May 2014 then followed. Both the shoulder and neck showed pathology. However, the left shoulder was “the dominant problem here”.[24] Dr Thomas described the damage by way of areas of pathology as confirmed in the recent MRI. He thought:
“The prognosis here is for persistent pain and disability related to the shoulder and limitations in his ability to lift and place the left hand where the left hand needs to be placed “[25]
[24]PCB 45
[25]PCB 46
24 Any examination of that statement would indicate limitations on movement and daily activities that would invade many aspects of home life and recreational life for a family man working in a factory context. These are very significant limits on activity.
25 The defendant’s material includes reports from Dr D Barton, occupational physician. He is on his own in saying in 2010 that an operation was not advisable and on causation not being work related. He did see a soft-tissue injury.[26] In 2011, he saw persistent dysfunction following a soft-tissue injury treated surgically.[27] His last report in 2014 recorded that the prognosis was excellent and the plaintiff had mostly recovered. He thought it was a “current minor problem”.[28]
[26]DCB 22
[27]DCB 27
[28]DCB 31
26 I do not agree with these views. They are unduly optimistic. They are not consistent with the bulk of the medical evidence nor the plaintiff’s own evidence, which I accept. They are not the opinions of a surgeon. Just because the plaintiff has returned to full-time work seems to be the reason this doctor dismisses the plaintiff’s problems as minor. I have not heard from Dr Barton, nor from any doctor for that matter, but I do not find his opinion assists. It does not properly deal with the clear pathology on the two MRI scans, including the very recent one in May 2014.
27 Mr I Jones, orthopaedic surgeon, saw the plaintiff in 2010, 2011, 2013 and 2014 for the defendant.[29] He consistently described the organic damage in and around the shoulder.[30] He thought in 2014, the prognosis was for persisting symptoms and restrictions at his current level. There was, in the long term, a chance of recurrent tearing developing. There was also a degenerative component. Apart from medications, there was no further treatment.[31]
[29]DCB 35-52
[30]DCB 38, 41, 50-51
[31]DCB 51
28 The medical evidence looked at overall supports a finding of continuing pain and restricted movement that are permanent. Unfortunately for the plaintiff, nothing can be done to alter the situation, save for some medication relief. In my opinion, his enjoyment of life is very considerably affected by pain and restriction. His interests in sport of itself, and the loss there, is a very considerable consequence for a man only in his middle-age years.
29 In the end, I accept the plaintiff, when he said about pain in cross‑examination: “It’s always giving me grief. It’s always aching.”[32] That, of itself, especially in light of a man who I found understates his problems, is a very considerable permanent consequence in terms of lost enjoyment of life.
[32]T33
30 Accordingly, I grant leave to bring proceedings for pain and suffering damages.
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