Taylor v Metropolitan Express Transport Services
[2014] VCC 117
•21 February 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-13-00424
| GAVIN JAMES TAYLOR | Plaintiff |
| v | |
| METROPOLITAN EXPRESS TRANSPORT SERVICES | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 and 4 February 2014 | |
DATE OF JUDGMENT: | 21 February 2014 | |
CASE MAY BE CITED AS: | Taylor v Metropolitan Express Transport Services | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 117 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury application – injury to the right shoulder – pain and suffering only – range
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Dawson | Shine Lawyers |
| For the Defendant | Mr B McKenzie | Herbert Geer |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with the defendant on 17 May 2010.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the right upper limb, namely his dominant right shoulder.
6 The plaintiff relied upon two affidavits, affirmed by him on 10 September 2012 and 8 January 2014. The plaintiff also relied upon affidavits of Valerie Elizabeth Whild, affirmed 14 January 2014, and Derek Shaw, sworn 29 January 2014. The plaintiff was cross-examined. I have not summarised the plaintiff’s evidence and affidavits; however, I will refer to the relevant evidence of the plaintiff, Ms Whild and Mr Shaw in my reasons. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
7 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 s134AB(37) of the Act.[1]
[1]s134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a) “the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant.[2]
[2]s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
(b) “the injury” with its resulting impairment must be permanent, in the sense that it is likely to continue into the foreseeable future.[3]
(c) “the consequences” to the plaintiff of his impairment to the right upper limb/right shoulder in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[4]
[3]Barwon Spinners (supra) at paragraph [33]
[4]s134AB(38)(b) and (c)
9 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
10 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[5]
“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. … .”[6]
[5][2009] VSCA 181
[6](supra) at [42]
11 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[7]
[7]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [44]
12 The test for “serious”, as set out in paragraph (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
13 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.[8]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[9]
[8]s134AB(38)(j) of the Act
[9] 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]
The issue
14 Counsel for the defendant informed the Court that this is a “range case”, namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range.
Investigations
15 On 20 May 2010, an ultrasound of the right shoulder showed:
“Ultrasound demonstrates normal appearance of the tendons of the rotator cuff. Other than this focus of calcification posteriorly in the supraspinatus, this measures approximately 6 millimetres in maximal dimension. The patient was not focally tender to probe pressure of this region. All movements were limited and there was bursal bunching on attempted abduction. Given this, steroid injection into the subdeltoid/subacromial bursa may provide symptomatic relief.”
16 On 3 June 2010, an ultrasound-guided injection of the right subdeltoid/subacromial bursa was administered.
17 On 5 October 2010, an MRI scan of the right shoulder concluded:
“1. Low grade reactive changes across the AC joint in keeping with low grade degenerative arthropathy.
2. Mild thickening with increased fluid within the subacromial/subdeltoid bursa. In the correct clinical setting the appearances raises the possibility of low grade bursitis.
3. Small partial thickness articular surface tear involving the posterior insertional fibres of the supraspinatus tendon. This tear is extremely small measuring 4 millimetres transversely by 6 millimetres longitunally with no retraction of tendon fibres in the region of previous identified calcific tendonosis as per x-ray and ultrasound performed May 2010. Elsewhere the supraspinatus tendon is of good quality.”
18 On 19 October 2010, a further ultrasound-guided subacromial bursa injection was administered.
The Plaintiff’s medical evidence
Dr Michael O’Toole
19 In February 2011, Dr O’Toole confirmed that the plaintiff consulted him on 17 May 2010 complaining of pain in his right shoulder as a result of a work injury. The plaintiff was referred for x-ray and ultrasound examination, which demonstrated calcific tendonitis. An ultrasound-guided cortisone injection was administered.
20 The plaintiff was referred to Mr Andrew Tang, orthopaedic surgeon, who recommended a rotator cuff decompression, which was performed in May 2011. Dr O’Toole had not seen the plaintiff since February 2011.
21 In February 2011, Dr O’Toole said the plaintiff was unable to perform pre-injury duties or alternative duties and he was unable to provide an opinion as to the plaintiff’s prognosis.
Dr Steven Kaye
22 Dr Kaye, general practitioner, provided medical reports dated 22 August 2011 and 25 May 2013. Dr Kaye confirmed that the plaintiff was treated at the Interhealth Medical Clinic in relation to his right shoulder between 5 May 2011 and 18 May 2012. The plaintiff underwent two hydrodilatation procedures in June and July 2011 to reduce pain and increase mobility. In August 2011 the plaintiff was diagnosed with calcific tendonitis and rotator cuff impingement of the right shoulder, which was followed by a frozen shoulder and depressed affect.
23 The plaintiff was referred to Mr Daniel Lewis, rheumatologist. The plaintiff was prescribed anti-depressant medication during the latter part of 2011 and analgesics to aid pain control. Norspan patches were used and finally removed in March 2012. The plaintiff received physiotherapy treatment and was cleared for full duties on 18 May 2012. The plaintiff was not prescribed any further medication by Dr Kaye’s practice after February 2012 and was last seen at the practice in May 2012.
Ms Bridie Shiels
24 In February 2011 Ms Shiels, physiotherapist, confirmed that the plaintiff received physiotherapy treatment for his injured right shoulder between June and November 2010. The plaintiff was provided with a home exercise program incorporating both stretching and resisted strengthening.
Mr Andrew Tang
25 In March and August 2011, Mr Tang, orthopaedic surgeon, confirmed that he had treated the plaintiff on referral for problems of pain, limitation of function and disability involving his right shoulder. Mr Tang confirmed that the plaintiff underwent an arthroscopic subacromial decompression in February 2011. Findings at the time of surgery were of a thickened coracoacromial ligament, a large amount of bursal tissue was inflamed but a rotator cuff was intact. There was a large interior acromial spur.
26 In July 2011, the plaintiff underwent hydrodilation with a good result. The plaintiff had a near full range of motion at the shoulder at this time. Mr Tang expected the plaintiff’s condition would stabilise within three months and he anticipated the plaintiff could return to work performing normal duties in six weeks.
Dr Daniel Lewis
27 In January 2014, Dr Lewis, rheumatologist, confirmed that he examined the plaintiff on referral from his general practitioner on 10 October 2011. The plaintiff had complained of persistent pain. Dr Lewis said the plaintiff had evidence of residual shoulder dysfunction secondary to a soft-tissue injury surgically treated. He thought the plaintiff was capable of undertaking all aspects of daily living. The plaintiff had completed a functional capacity assessment and recorded that he was having moderate difficulty with normal work, housework, social activities, sexual activity, lifting and carrying more than 10 kilograms, bending his head forward, reaching over the head to a high shelf, lifting groceries, reaching up behind his back and opening tight jars. He reported that he was unable to undertake his usual sporting activities or throw a ball.
Mr Peter Mangos
28 In April 2013 and January 2014, Mr Mangos, general surgeon, medically examined the plaintiff at the request of the plaintiff’s solicitor. The plaintiff complained of a painful right shoulder depending on activities, a chronic ache, and particular difficulty in lifting his arm above his head. He had a loss of power in the shoulder. The pain disrupts his sleep at night. His main problem was lifting overhead and in pushing, pulling and lifting with his right shoulder. Mr Mangos noted that the plaintiff had diffuse decaying teeth.
29 Mr Mangos noted slight wasting in the deltoid muscle. He said the plaintiff had suffered a traumatic tendonitis with tear of the rotator cuff and bursitis.
30 Mr Mangos noted that the plaintiff had been off work intermittently since the initial injury. He said the plaintiff was not fully recovered but had recovered sufficiently to return to the restricted work he performed. He described the plaintiff as stoical, and one who can cope with a reasonable amount of pain and still continue working. He noted that the plaintiff does not have any special treatment but deals with the discomfort himself. The plaintiff reported taking occasional Panadol Osteo for pain in his shoulder and performing exercises on a regular basis. Mr Mangos said if the shoulder worsens, the plaintiff may have further cortisone injections and take analgesics and/or anti-inflammatory medication. He was confident that the plaintiff’s activities of daily living had been seriously affected by the shoulder injury, which is permanent. He said the plaintiff’s prognosis for continuing work was guarded.
31 Mr Mangos was of the view that the plaintiff’s restrictions; namely, restriction of range of movements, reduced shoulder strength and pain, will persist into the foreseeable future.
32 Mr Mangos noted that the plaintiff was a labourer, was unable to perform work with his right arm and therefore unable to cope with heavy duties. He said the plaintiff was doing quite well to continue working, and noted that he was performing work with a good deal of discomfort, which he said was permanent.
The Defendant’s medical evidence
Dr Gary Davison
33 In October 2010, Dr Davison, occupational physician, examined the plaintiff at the request of the defendant’s insurer. It was his view that the plaintiff had aggravated his previous shoulder injury which occurred in May 2010 and required a further ultrasound-guided injection. He thought the plaintiff had probably suffered an aggravation of a subacromial bursitis. He said the plaintiff could not return to his pre-injury duties and hours. He imposed restriction of:
·avoiding forceful and/or repetitive pushing or pulling with the right arm from the body
·avoiding use of the right arm above chest height
·avoiding manual handling greater than 10 kilograms in force or weight using both hands at bench height.
34 In January 2011, Dr Davison recommended as a reasonable and appropriate form of treatment, a subacromial decompression to relieve subacromial bursitis impingement.
Associate Professor Maurice Wallin
35 In March 2011, Associate Professor Wallin, consultant in occupational health and safety rehabilitation and legal medicine, provided occupational rehabilitation advice at the request of the defendant’s insurer. Associate Professor Wallin confirmed that the plaintiff had been diagnosed with a subacromial bursitis and impingement on the rotator cuff which was work-related. He thought it was very likely that the plaintiff would be able to return to his pre-injury duties and hours in three to six months.
36 He noted that the plaintiff had ongoing major disability and was needing very strong analgesic medication. He said there was a significant, at least 80 per cent potential, for the plaintiff to recover to the point of returning to his pre-injury duties.
Mr Michael J Troy
37 In February and December 2012 and December 2013, Mr Troy, occupational medicine and musculoskeletal specialist, examined the plaintiff at the request of the defendant’s insurer and solicitor. He diagnosed a supraspinatus tendon of the right shoulder. In December 2013, he said the short and long-term prognosis was that the plaintiff has limited movement in the shoulder which is painful and will remain as it is indefinitely. He said the plaintiff’s condition did not interfere with his enjoyment of life. He noted that he did not swim or garden but is able to drive his truck full time and work without any other restrictions. He noted that he was not taking any particular medication and does not require further treatment.
38 Mr Troy said the plaintiff was fit for pre-injury employment but imposed restrictions of lifting and carrying judiciously, not more than 10 kilograms up to shoulder height and not beyond. Further, the plaintiff has a permanent incapacity for any overhead work with the right shoulder and should not be expected to do hard pick and shovel work or use jackhammers or the like, as they would result in a recurrence of symptoms in his right shoulder.
Credit of the Plaintiff
39 The plaintiff answered all questions in a forthright manner. He made concessions. For example, he conceded that his driving was affected by both his back and shoulder injuries.
40 Counsel for the defendant submitted that I should have reservations about the plaintiff’s credit in view of the affidavit material relied upon by the plaintiff in relation to an earlier application for a back injury. I do not accept that submission.
41 I accept in the earlier affidavit, the plaintiff said he could not do certain activities, including undertaking any manual employment or suitable employment. In this application, the plaintiff’s evidence was that he still experiences backache but it is not as bad, because he has learnt to deal with it with the assistance of exercise and stretching. His back improved, he was able to return to work but had some restrictions with his back, which he disclosed to the Court. He described his recovery as “miraculous”. Accordingly, I do not draw an adverse inference as to the plaintiff’s credit from this circumstance.
42 It was my view that the plaintiff presented as stoical. He was not given to exaggeration and, if anything, underplayed the consequences of his injury. He gave his evidence in a most uncomplaining way. I based my impression on the way he presented in the witness box. I note that my assessment was consistent with the view expressed by Mr Mangos.
43 I accept that the injury suffered by a stoical plaintiff is not to be viewed as any less serious merely because he manages to remain more active than might have been expected given the level of pain.
44 I formed the view that the plaintiff was genuine. He conveyed to the Court that he was motivated to continue working.
Analysis of the evidence
45 It was not in issue that the injury to the right shoulder was a compensable injury arising out of, or in the course of, the plaintiff’s employment with the defendant. All of the medical witnesses accepted the right shoulder injury was work-related.
46 The right shoulder injury was variously described as calcific tendonitis and rotator cuff impingement of the right shoulder followed by a frozen shoulder;[10] arthroscopic subacromial decompression with bursectomy;[11] residual shoulder dysfunction secondary to a soft-tissue injury surgically treated;[12] traumatic tendonitis with tear of the rotator cuff and bursitis;[13] subacromial decompression to relieve subacromial bursitis;[14] supraspinatus tendon of the right shoulder.[15]
[10]Dr Steven Kaye
[11]Mr Andrew Tang
[12]Dr Daniel Lewis
[13]Mr P Mangos
[14]Dr Gary Davison
[15]Mr Michael J Troy
47 The plaintiff underwent physiotherapy treatment, multiple ultrasound-guided injections of the right subdeltoid/subacromial bursa, surgery comprising an arthroscopic subacromial decompression, bursectomy and acromialplasty, with debridement of the coracoacromial ligament, two hydrodilation procedures and was prescribed medication.
48 It was accepted that in July 1999, the plaintiff suffered a significant back injury while at work, for which he received WorkCover payments and a common-law settlement in 2006. Counsel for the defendant submitted that there was an issue as to the identification of the consequences of the shoulder injury as opposed to the back injury. The plaintiff’s evidence was that if it was not for his back injury, he would still need to have rest breaks for his shoulder when driving. I accept that the plaintiff has ongoing restrictions because of his back pain. Those consequences cannot be considered for the purposes of assessing this application. I have not taken the plaintiff’s restrictions as a consequence of his back injury into account in this application.
49 I must make the assessment at the time of hearing the application. Accordingly, I place greater weight on the most up-to-date medical evidence of Mr Mangos and Mr Troy, who both examined the plaintiff recently.[16] I am influenced to a lesser degree by Dr O’Toole, Dr Kaye, Mr Tang, Dr Lewis, Dr Davison and Associate Professor Wallin, all of whom last examined the plaintiff in 2011.
[16]Mr Mangos in January 2014 and Mr Troy in December 2013
50 Mr Mangos said the plaintiff had a substantial impairment because of his shoulder. He accepted the plaintiff had restrictions in the range of movement, reduced shoulder strength and endured pain. He considered the restrictions would persist into the foreseeable future.
51 Mr Troy accepted that the plaintiff had limited movement in the shoulder, which was painful and will remain indefinitely. He said the plaintiff’s condition did not interfere with his enjoyment of life. He imposed restrictions on lifting and carrying not more than loads of 10 kilograms up to shoulder height. He said the plaintiff had a permanent incapacity for any overhead work with the right shoulder and could not do hard pick and shovel work or use jackhammers or the like.
52 The plaintiff’s evidence was that he suffers pain daily in his right shoulder, which is aggravated by strenuous physical activity. He suffers increased pain at the time of the activity and in the hours or days following. The plaintiff’s evidence was that small things aggravate the pain. This was supported by the evidence of Mr Shaw, a friend.
53 The plaintiff reported the pain he suffers to the doctors whom he saw. Mr Mangos accepted the plaintiff was stoical and could cope with a reasonable amount of pain. Mr Troy accepted the plaintiff suffered pain and limited shoulder movement which he considered would remain indefinitely.
54 I accept the plaintiff’s evidence about the pain he experiences as a result of the injury to his right shoulder. I accept that the experience of pain for the plaintiff is a consequence I can take into account.
55 The plaintiff’s evidence to the Court was that he currently receives limited treatment for his right shoulder injury. He said he took Osteo Panadol at least every day and performs exercises with a TheraBand. He tries to avoid taking medication because of the side effects he suffered from medication he took as a result of his back injury. The plaintiff’s evidence was that the strong medication he was prescribed for his back injury damaged the enamel on his teeth, requiring him to have false teeth.
56 The plaintiff’s evidence was that he ceased physiotherapy treatment because the defendant’s insurer terminated his entitlement to physiotherapy. He said that he receives no treatment for his shoulder because there is no further treatment that can be provided. I accept the plaintiff has minimal treatment for his shoulder injury.
57 None of the medical witnesses suggested that his treatment was inappropriate. Mr Troy said the plaintiff did not require any further treatment. Mr Mangos said if the plaintiff’s shoulder worsens, he may require cortisone injections, analgesic and anti-inflammatory medication.
58 The evidence is that the plaintiff is no longer able to engage in unrestricted manual labour. Mr Mangos said the plaintiff would be unable to perform labouring work with his right arm or cope with heavy duties. He thought the plaintiff was doing well to continue working and worked with a good deal of discomfort. Mr Troy said the plaintiff was fit for pre-injury duties, but imposed restrictions on lifting, carrying and overhead work.
59 The plaintiff’s evidence was that at the time of the injury, he was employed as a truck driver delivering goods to customers around Melbourne. The work was physical and required the unrestrained use of his arms and shoulders, both in the driving and loading/unloading activities. As a consequence of his right shoulder injury, he can no longer perform pre-injury driving and now works as an interstate truck driver, predominantly between Melbourne and Sydney. The trucks are loaded and unloaded by other people using a forklift or pallet jack.
60 The plaintiff is restricted in changing a flat tyre, which occurs on average once per month, because he does not have the shoulder strength and force to handle the flat tyre. He calls roadside assistance, which can set him back up to three hours or longer in his interstate trips. Lost time on the road affects his deadlines and takes away from his sleep time.
61 The plaintiff requires additional breaks while driving. If he drives for too long without a break, the pain in the right shoulder intensifies. As a result, he makes additional stops to rest. He normally stops a minimum of three times, totalling one hour, to rest his shoulder and stretch his back.
62 The plaintiff’s evidence was that interstate driving was hard. He works a lot of hours. The trip to Sydney might be 10 hours. When he arrives in Sydney, he makes deliveries and he has pick-ups. He has to sleep before leaving Sydney at 5.00 or 6.00pm. He is required to be away from home and sleep in his truck, and the work is more dangerous because it involves driving at night.
63 I accept that the plaintiff is engaged in full-time work but with restrictions. I accept that he cannot return to his previous work because of his right shoulder injury, and that he is now working in a job that requires him to be absent from home and is more dangerous. I accept the effect of his right shoulder injury on his work is a consequence which I can take into account.
64 The plaintiff’s evidence was that his sleep is affected by his shoulder injury. He is often unable to find a comfortable position and is woken by shoulder pain. He is restricted in the medication he can take to sleep because of his occupation, so he takes over-the-counter herbal medication. His evidence was sleep was particularly important as a truck driver for safety reasons and because he has restricted time to sleep and has to sleep in his truck on occasions. I accept that this is a significant consequence.
65 The plaintiff said the pain in his shoulder impairs his enjoyment of his social, recreational and domestic activities.
66 Mr Mangos accepted that the plaintiff suffered a good deal of restriction with the use of the right shoulder and that his activities of daily living were seriously affected.
67 The plaintiff’s evidence was that he was a keen cricket player from his teenage years until his late twenties. He was asked to fill in for his cousin’s team, but could not do so because of his right shoulder injury. He would like to be able to play cricket with his son, who is aged fourteen, but his shoulder injury prevents him from bowling to his son in the nets. His ability to play football with his son is also restricted. He has attempted to kick the ball to his son but needs to be able to raise both arms above his shoulder to mark the ball, which he cannot do. He cannot participate in archery with his son, a sport he enjoyed as a child.
68 Approximately twelve months ago, the plaintiff purchased an old Ford Escort motor vehicle to restore with his son. He found the work was harder and more physically demanding on his shoulder than he had expected, with the result that he gave the car away. He said he could cope with the mechanical work but the rubbing back of the panels put too much strain on his shoulder.
69 The plaintiff’s evidence was that he finds it upsetting and disappointing that his right shoulder injury has limited, and continues to limit, the bonding activities with his son. I accept that this is a significant consequence for this plaintiff.
70 The plaintiff’s evidence was that he was a physically active person who enjoyed water skiing, playing tennis and ten-pin bowling. He cannot engage in those activities because of his shoulder injury. He attempted ten-pin bowling but found the act of swinging with his right arm caused great pain in his right shoulder. Mr Shaw confirmed that he and the plaintiff can no longer go bowling or play golf because of the plaintiff’s right shoulder. The plaintiff attempted go-karting but found the steering very stiff and after ten minutes, ceased. He struggled to move his shoulder for the next two days. I accept that he is restricted in activities of water skiing, playing tennis, ten-pin bowling and go‑karting.
71 Prior to his shoulder injury, the plaintiff purchased a multi-station home gym which he used regularly. Since the shoulder injury, he has had to get rid of the equipment. I accept this is a consequence that I can take into account.
72 The plaintiff’s evidence was that he was limited in activities around the house. He has modified the clothesline to accommodate his right shoulder. When he hangs sheets on the line, he is required to use a stepladder. The plaintiff told the Court that chopping can aggravate the pain in his shoulder. He is right-hand dominant, but is learning to do activities with his left shoulder.
73 The plaintiff said that as a result of his shoulder injury, he has become less social because it is easier not to attempt activities. He often has to force himself to attend functions.
74 The plaintiff’s evidence was that many activities are not worth the increased pain and discomfort and subsequent restriction of movement in his right shoulder. The plaintiff’s evidence was that before engaging in any activity he must assess the task and the pain he is likely to experience. He attempted camping in Cairns in 2012. Sitting on the ground meant he used his arms for support. Lying down he would prop himself on his elbow. He suffered pain and discomfort in his right shoulder. The camping experience was unpleasant because of his right shoulder injury.
75 I accept that these are consequences that the plaintiff has suffered as a result of his right shoulder injury.
76 I am satisfied that the plaintiff is no longer able to perform his pre-injury truck driving in the Melbourne Metropolitan Area because the work was physical and required the unrestrained use of his arms and shoulders. To his credit, he has obtained work as an interstate driver, which he performs with restrictions. I accept that the plaintiff’s ability to engage in alternate full-time work does not preclude him from showing that the pain and suffering consequences are serious. In addition, the plaintiff described the sporting, domestic and social restrictions imposed upon him by his injury.
77 Taking all the evidence into account, the fact that the plaintiff is forty-eight years old, and that I have found the plaintiff to be stoical, I am satisfied that it is fair to describe the consequences of the pain and suffering as being “more than significant or marked” and properly regarded as “considerable” when judged by comparison with other cases in the range. The plaintiff therefore satisfies the narrative test for pain and suffering. In reaching this conclusion, I have made a comparison with other cases in the range of possible impairments. Given the length of time since the injury, the ongoing nature of the symptoms and the evidence from the medical witnesses, I accept the restrictions are permanent.
78 No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s134AB(38)(h) of the Act.
79 In such circumstances the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering is successful.
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