Tham v Victorian WorkCover Authority (Hertz Australia Pty Limited)
[2024] VCC 935
•1 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-22-04464
| CHARLES THAM | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17, 18 and 19 June 2024 | |
DATE OF JUDGMENT: | 1 July 2024 | |
CASE MAY BE CITED AS: | Tham v Victorian WorkCover Authority (Hertz Australia Pty Limited) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 935 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – physical injury to the right shoulder and psychiatric and psychological condition, chronic adjustment disorder with depressed and anxious mood – disentanglement of consequences between the physical and psychiatric injury – pain and suffering damages – loss of earning capacity damages – causation of the physical injury to the plaintiff’s right shoulder – whether the plaintiff has satisfied the statutory standard in respect of a serious injury application
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325, s327 and s335
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: The plaintiff is granted leave to bring proceedings to recover damages for pain and suffering only for the injury to his right shoulder arising out of or in the course of his employment with Hertz Australia Pty Limited. The plaintiff’s serious injury application in respect of loss of earning capacity arising from the physical injury to his shoulder or his psychiatric or psychological injury is dismissed. The plaintiff’s application for serious injury certification for pain and suffering arising from a psychological/psychiatric injury is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person with the assistance of an interpreter (Indonesian language) | - |
| For the Defendant | Mr A W Middleton with Ms K Popova | Hall & Wilcox |
HIS HONOUR:
1The plaintiff brings this application by Originating Motion dated 29 September 2022. The plaintiff applies for leave pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising from, and in the course of, his employment with Hertz Australia Pty Limited (“Hertz”), in particular, on 26 February 2017.
2In respect of the physical injury to the plaintiff’s right shoulder, he seeks certification for both pain and suffering and loss of earning capacity. The frank injury date nominated by the plaintiff was 26 February 2017.
3The plaintiff also alleges that he suffered a psychiatric injury as a result of his employment with Hertz and seeks leave to bring proceedings for damages in respect of pain and suffering and loss of earning capacity due to a psychiatric/psychological injury.
4The application for serious injury against the employer, Hertz, was heard at the same time as the plaintiff’s application for serious injury in respect of his work with IKON Administration Pty Ltd (“IKON”).
5The plaintiff was an unrepresented litigant. The plaintiff required the assistance of an interpreter in the Indonesian language to conduct his applications.
6The plaintiff gave evidence and was cross-examined with the assistance of an Indonesian interpreter.
7The plaintiff tendered the following exhibits in the hearing of both serious injury applications:
· Exhibit “A”, Royal Melbourne Institute of Technology Bachelor Degree Certificate (“Civil and Infrastructure”), awarded to him on 12 December 2007.
· Exhibit “B”, the Joint Court Book (“JCB”), pages 11-96, 147-155, 163-184, 193-220, 229-241, 364-373 and 466-543.
8The defendant tendered the following documents:
· Exhibit 1, Joint Court Book, pages 97-146, 156-162, 185-192, 221-228, 242‑363, 375-385 and 568-619.
9The two serious injury hearings took place over a three-day hearing, including submissions on the third day.
10The issues in the application against Hertz were outlined by Mr Middleton, counsel for the defendant, in submissions as follows:
(a) the credit of the plaintiff;
(b) the alleged injury to the plaintiff’s right shoulder did not meet the statutory test;
(c) the plaintiff did not distinguish between his right shoulder condition prior to this work with Hertz and after his injury on 26 February 2017;
(d) the plaintiff has failed to disentangle the psychiatric/psychological symptoms said to be caused by the two separate employers, being IKON and Hertz;
(e) the plaintiff’s psychiatric/psychological injury does not meet the statutory test of being “severe”.
The statutory scheme
11The application is brought under the definition of “serious injury” contained in s325(1) of the Act, which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
12The relevant considerations which apply to such an application are as follows:
(a) the plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 1 July 2014;[1]
(b) the injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
(c) the plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) subsection 2(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may be fairly described as being “more than significant or marked”, and as being “at least very considerable”;
(e) subsection 2(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of this application unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;
(g) in conformity with Barwon Spinners,[3] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss2(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1]See s1 of the Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 (“Barwon Spinners”) at paragraph [11]
[2]Barwon Spinners (ibid) at paragraph [33]
[3] Supra
13I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action, and, in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
14The plaintiff was born in Indonesia and at the time of the hearing, was almost forty-one years of age.[4]
[4]JCB 40
15The plaintiff was educated to Year-12 level in Indonesia.[5] The plaintiff commenced study for a Bachelor of Civil Engineering in Indonesia prior to coming to Australia.[6] In 2003, the plaintiff came to Australia for the first time in order to commence studies at the Royal Melbourne Institute of Technology in the course of civil engineering.[7]
[5]Transcript (“T”) 24
[6]T24
[7]T17
16The plaintiff completed his Bachelor of Engineering at the Royal Melbourne Institute of Technology in Civil and Infrastructure. The plaintiff was awarded his degree on 12 December 2007.[8]
[8]Exhibit “A”
17The plaintiff gave evidence that he returned to Indonesia after his graduation in engineering and worked for a period of time in that country. He then returned to Australia in 2014. The plaintiff commenced work with IKON as a cleaner in September 2015. On 25 November 2016, the plaintiff commenced work as a car cleaner for Hertz. The plaintiff worked at both of these jobs until he was injured while working with Hertz on 26 February 2017. At the time of the plaintiff’s injury at Hertz, he was on modified duties with IKON from 27 January 2017.[9]
[9]JCB 27
18The plaintiff ultimately had his employment with IKON terminated on 8 August 2017.[10] The plaintiff’s employment with Hertz was terminated on 25 August 2017.[11]
[10]JCB 27
[11]JCB 14
19The plaintiff has had two separate hearings in the Fair Work Commission in respect of his employer, Hertz.[12] The plaintiff also had litigation in VCAT in respect to a human rights claim against Hertz.[13] The plaintiff has engaged in complex and convoluted claims arising out of his employment with Hertz.
[12]JCB 560-599
[13]JCB 600-619
20The plaintiff has not worked since August 2017.[14] The plaintiff has been in receipt of Centrelink payments which he describes as “DSP”.[15] It was unclear when the plaintiff was placed on the Disability Support Pension, but he has been in receipt of it for a number of years. The plaintiff also receives rental assistance from Centrelink.[16]
[14]T73
[15] T73
[16]T74
The injury with Hertz
21The plaintiff worked as a car cleaner with the Hertz from 25 November 2016 until his injury on 26 February 2017. The plaintiff’s employment was terminated with Hertz on 25 August 2017[17] after he returned to work on modified duties.
[17]JCB 16
22The plaintiff claims he injured his right shoulder in the course of his employment. The plaintiff stated that he was using a 10-litre container full of water to fill the wiper washer on a car in the course of his cleaning activities. The plaintiff said he was required to do this because the hose system ordinarily used to replenish the wiper-washer reservoir was broken and had not been repaired.
23During the hearing, the plaintiff was challenged in cross-examination about the use of the 10-litre container. In the course of his medical examinations, the plaintiff has given descriptions of the 10-litre container. On occasion, he referred to it as a 15-litre container. He has called it a barrel and a jerry can. The plaintiff also referred to it as a Woolworths’ mineral water container.[18] In his submissions, the plaintiff stated that the reporting by the doctors of various descriptions of the container were a result of different interpretations given by different interpreters.
[18] T29-30
24It was put directly to the plaintiff that the system of work involved a 1-litre container to be used by him in the process of replenishing wiper-washer reservoirs in the cars. The plaintiff clearly stated that that process only occurred after his injury in February 2017.[19] The plaintiff, in other litigation and in this Court, said that a DVD film of the workplace at the time of his injury would verify what he was describing as the cause of his injury.[20] There was no DVD or CCTV footage of the incident which is said to have caused the plaintiff’s injury tendered in this proceeding.
[19] T33
[20] T34
25The plaintiff was sent to many medical practitioners in respect of the two applications for serious injury certification. Relevantly, the plaintiff was sent to see Dr James Economos, occupational physician, who prepared a report dated 31 March 2017. Dr Economos reported as follows under the heading of “Document Review”:
“As well as his statement, I was provided statements from two turn-around managers and a leading hand. Page 2, paragraph 3 of the leading hands (sic) states that she had never seen the water container before which he showed to her for the first time that day, estimating a capacity of 10 litres, that she had never used the container and nor had she observed anyone else using it, not even … [the plaintiff] himself. I have not been provided with the CCTV footage.
Page 3 of the circumstance investigation report summary, paragraph 2, states the footage shows the … [plaintiff] performing this filling/topping-up activity by lifting the plastic water container in the manner described by him but the investigator had not yet received a copy of the footage.”[21]
[21]JCB 115-116
26The documentation sent to Dr Economos supports what the plaintiff was saying as to the manner in which the work system caused the plaintiff’s injury to his right shoulder.
27The plaintiff claims that he has suffered a psychological and psychiatric injury as a result of the right shoulder injury and his treatment by the employer after he made a claim.
Psychiatric injury
28The plaintiff is an unrepresented litigant. The psychiatric and psychological medical reporting in this case is directed to his employment with IKON. The alleged bullying and ill treatment by the supervisors at IKON commenced prior to the plaintiff working at Hertz. The plaintiff made two separate claims against IKON, alleging that the injuries occurred on 8 December 2016 and 28 March 2017. The plaintiff’s allegation of bullying at IKON covered the whole of that period. This period overlaps the frank incident date of 26 February 2017.
29I am not satisfied that the plaintiff has suffered any psychiatric or psychological sequelae as a result of his employment with Hertz. All of the medical opinions and complaints by the plaintiff relate to his time at IKON.
30The plaintiff’s claim for serious injury in respect of pain and suffering and loss of earning capacity arising from psychological or psychiatric injury in the course of his employment with Hertz is dismissed.
The right shoulder injury with Hertz
31The defendant in this application challenged the plaintiff about his prior medical history in respect of a right shoulder injury. In particular, the defendant relied upon a report of Dr W Chen, general practitioner, from the Richmond North Medical Clinic, dated 31 March 2017, which set out the plaintiff had a past history of “[r]ight shoulder injury from tram accident”.[22] The plaintiff’s evidence on this issue was that his left shoulder was injured in a tram accident and the doctor had simply got the wrong side in his report.[23] In the clinical notes dated 19 November 2016, Dr Saba Movassaghi notes the plaintiff attended for musculoskeletal shoulder pain. A history was taken that the plaintiff wanted to have his right shoulder checked. The result from the x-ray was that the AC joint had changes and there was a sprain, but no fracture. It was clear from the notes that the plaintiff had made a complaint of right shoulder pain as a result of his incident on Yarra Trams.[24]
[22]JCB 61
[23] T113
[24]JCB 377
32The plaintiff had an x-ray of his right shoulder on 21 November 2016. The report of that x-ray to the right shoulder stated as follows:
“No fracture or dislocation seen. No other bone or joint lesion seen.
Comment: A soft-tissue injury involving ligaments, tendons or muscles cannot be excluded.”[25]
[25]JCB 48
33The plaintiff had previously had a right shoulder ultrasound which was performed on 24 June 2010. The conclusion from that report is as follows:
“… Bilateral mild supraspinatus tendinopathy and bursitis.
The dynamic study is suggestive but not diagnostic of impingement and some physiotherapy combined with anti-inflammatory treatment is suggested.
On the right side, there is mild bicipital tenosynovitis.”[26]
[26]JCB 46
34Both of the radiological examinations performed on 24 June 2010 and 21 November 2016 occurred prior to the injury the subject of this application. I note the plaintiff commenced his employment with Hertz on 25 November 2016, some four days after the second x-ray was performed.
35On 27 February 2017 (the day after the injury at Hertz), the plaintiff was examined by way of ultrasound to the right shoulder. The conclusion of that examination was:
“1.Negative ultrasound for rotator cuff tear.
2.The sonographic findings are compatible with impinging, subacromial bursitis. We would be pleased to perform ultrasound guided steroid injection of this, if clinically indicated.
3.Slight acromioclavicular joint tenderness.”[27]
[27]JCB 51
36On 16 June 2017, the plaintiff was again examined by way of ultrasound to his right shoulder. The conclusion on that occasion was as follows:
“Supraspinatus rotator cuff tendinopathy without a rotator cuff tear. Mild associated subdeltoid-subacromial bursitis and bursal impingement during shoulder abduction.
Ultrasound-guided steroid injection may be performed if considered to be of therapeutic benefit.”[28]
[28]JCB 54
37The plaintiff had an MRI scan of his right shoulder on 6 September 2017. The clinical notes in respect of that report stated, “[p]ersistent right shoulder pain and impingement”. The conclusion of the MRI report was as follows:
“1.Supraspinatus rotator cuff tendinopathy with scuffing and fraying and degeneration of the anterosuperior bursal surface of the tendon.
2. There is no evidence for (sic) a full thickness tear.
3. Minor subdeltoid-subacromial bursitis also noted.”[29]
[29]JCB 55
38The final radiological examination of the plaintiff was performed on 12 June 2019. An ultrasound of the right shoulder was performed for the purposes of ongoing pain, supraspinatus tear or frozen shoulder. The conclusion was of a normal examination with no cause of symptoms identified.[30]
[30]JCB 60
39The radiological examinations of the plaintiff’s shoulder, both by way of ultrasound and MRI scan, are generally unremarkable. The difference between the ultrasound examination of the plaintiff’s right shoulder performed on 24 June 2010 and the ultrasound performed on 16 June 2017 is limited.
40The plaintiff has undergone three cortisone injections to his right shoulder since the time of his injury in February 2017.
Medical reports in respect of the right shoulder injury
Dr Minh Mai, general practitioner
41Dr Mai is a general practitioner at Moonee Ponds Medical Centre. He prepared a report dated 28 February 2018. The plaintiff had been seen by Dr Shum from the same practice in respect to his right shoulder injury on the day of 26 February 2017. Dr Mai saw the plaintiff for the first time on 2 March 2017 for his results in respect of the ultrasound examination. He referred the plaintiff for a cortisone injection to the right shoulder. Dr Mai’s diagnosis was subacromial bursitis and supraspinatus rotator cuff tendinopathy.[31]
[31]JCB 75
42In April 2017, Dr Mai referred the plaintiff again for an ultrasound-guided cortisone injection for his subacromial bursitis in the right shoulder. He also referred the plaintiff for physiotherapy treatment by Robert Dib.[32]
[32] JCB 75
43In May 2017, the plaintiff had his first cortisone injection to his right shoulder.[33]
[33]JCB 75
44Dr Mai noted that the plaintiff complained of an incident in August 2017 when a car door had been closed on his right shoulder, causing more pain.[34] This incident occurred at work near to the day of his termination. The plaintiff was referred to the MRI scan which I have previously noted. The plaintiff had an ultrasound-guided cortisone injection to his right shoulder on 13 October 2017. This was the second injection. The plaintiff was referred to Associate Professor Martin Richardson, an orthopaedic surgeon.
[34] JCB 76
Associate Professor Martin Richardson, orthopaedic surgeon
45Associate Professor Richardson prepared three reports, dated 24 January 2019, 20 May 2019 and 12 November 2019. Associate Professor Richardson recommended six treatments of medical acupuncture with Associate Professor Allen Yuen.[35] The original plan of six acupuncture treatments was extended to a further ten treatments in May 2019.[36]
[35]JCB 80
[36]JCB 81
46In his report dated 12 November 2019, Associate Professor Richardson noted that the plaintiff’s shoulders had settled down nicely over the last month. He noted the plaintiff complained of waking at night with his right shoulder pain, but was otherwise doing well. He recommended ongoing physiotherapy and hydrotherapy at the Epworth Hospital.[37]
[37]JCB 83
47On 23 March 2021, Associate Professor Richardson prepared a further report. He noted that he had examined the plaintiff on 18 March 2021 and found some impingement symptoms, particularly at night. He recommended a further subacromial injection of local anaesthetic to the right shoulder. He noted, at that time, the plaintiff was seeking to obtain a new occupation.[38]
[38]JCB 86
48The plaintiff was further examined by Associate Professor Richardson on 11 April 2022. In his report dated 12 April 2022, Associate Professor Richardson noted the plaintiff had undergone a cortisone injection to his right shoulder. Associate Professor Richardson reported:
“… Clinically he has got a full range of movement but evidence of subacromial impingement. I think a fresh MRI scan will be helpful at this stage as he hasn’t had one since 2017 which showed some evidence of subacromial bursitis and tendinopathy of the supraspinatus tendon with an intact rotator cuff.”[39]
[39]JCB 94
Dr Premini Thanarajah, consultant physician
49Dr Thanarajah prepared a report dated 28 November 2019 for Associate Professor Richardson. At that time, the plaintiff had normal range of movement in both of his shoulders. There was mild pain at the end range of movement in his right shoulder. The recommendation of Dr Thanarajah was for ongoing physiotherapy and hydrotherapy at the Epworth Hospital.[40]
[40] JCB 84
Dr James Economos, occupational physician
50Dr Economos prepared a report dated 31 March 2017. Dr Economos noted that the plaintiff had denied any previous episodes of right shoulder pain. This is at odds with the history of prior radiological examinations in 2010 and 2016.[41] Dr Economos took a history of the plaintiff, noting that his sleep was briefly disturbed occasionally if the plaintiff rolls onto his right side, but it was more disturbed by anxiety.[42] On examination, Dr Economos noted that an impingement sign was positive on one or two occasions with a painful click, but this was not reproduced or associated with any substantial overt pain behaviour.[43] Dr Economos’ diagnosis was that the clinical features are more suggestive of subacromial impingement, this being supported by the ultrasound.[44] Dr Economos went on to state that –
“… [The plaintiff] is likely to have had a degree of subacromial bursitis effusion/thickening as a result of the combination of the work that he performs both at the Crown Casino and with Hertz Australia P/L … .”[45]
[41]JCB 112
[42]JCB 113
[43]JCB 114
[44]JCB 116
[45]JCB 116
51He went on to state he would like to see the CCTV footage at Hertz in relation to the injury to the plaintiff.[46]
[46]JCB 116
Dr Majid Rahgozar, consultant physician
52The plaintiff was examined by Dr Rahgozar on behalf of the insurers for Hertz. He prepared a report dated 13 September 2017. Dr Rahgozar’s opinion was as follows:
“… this initial injury is likely to have resolved and today’s examination was not consistent with any particular pathology of the shoulder and more consistent with chronic non-specific pain. This is likely to be in the context of a degree of an anxiety disorder, for which he is receiving Valium. He will benefit from further assessment by a psychiatrist.
Today’s examination had elements suggestive of a non-organic component to his presentation of abnormal illness behaviour.”[47]
[47]JCB 132
53Dr Rahgozar’s opinion was that the plaintiff did not require any further treatment to his right shoulder other than simple exercises and occasional use of analgesics of Panadol and Nurofen. Dr Rahgozar’s opinion was that the plaintiff had the capacity to return to his normal work.[48]
[48]JCB 132
54Dr Rahgozar prepared a further report dated 20 September 2017. Dr Rahgozar, in the second report, confirmed his opinion that the plaintiff did not have any disability as a result of his right shoulder injury and that his presentation had elements of illness behaviour.[49]
[49] JCB 143
Medical Panel
55The plaintiff lodged a referral to the Medical Panel (“the Panel”) dated 7 August 2018. On 6 October 2018, the Panel, consisting of Dr Jack Owczarek, specialist general practitioner; Mr Keith Elsner, specialist orthopaedic surgeon, and Dr Mano Thevathasan, specialist general physician, specialist rheumatologist and specialist palliative medicine physician, handed down its decision.[50] The Panel was of the opinion that the plaintiff’s mild right shoulder supraspinatus tendinopathy[51] condition resulted from, and was and is materially contributed to, by the claimed right shoulder injury.
[50] JCB 149
[51] JCB 152
56The Panel was also of the opinion that the plaintiff did, and does have, an incapacity for work.[52] It is to be noted that the Panel had been told by the plaintiff that he never had any symptoms or injuries to his right shoulder prior to the incident of 26 February 2017.[53] The Panel noted that there was mild wasting of the right supraspinatus muscle on the plaintiff.[54] In summary, the Panel was prepared to accept that the plaintiff was suffering from a mild right shoulder supraspinatus tendinopathy as a result of his injury at work with Hertz.
[52] JCB 153
[53]JCB 151
[54] JCB 151
57A second Medical Panel examination was conducted on 3 November 2021. The finding of the Panel on that occasion was that the plaintiff suffered from an accepted right shoulder injury and that the impairment to that shoulder was permanent.[55] The Panel consisted of Dr Laurie Warfe, general practitioner, and Mr Craig Donohue, orthopaedic surgeon.
[55]JCB 163
58In the relevant past history section of the decision by the Panel, the following appears:
“… [The plaintiff] told the Panel that he has not had any significant injury or condition involving the right shoulder in the past. The Panel noted in … [the plaintiff’s] treating practitioner’s medical record a report of an X-ray of the right shoulder performed on 21 November 2016 which reportedly showed no abnormality. When asked about the circumstances of and indications for the right shoulder X-ray on that date, … [the plaintiff] could not recall having had the X-ray and could not recall any significant issues involving the right shoulder at or around November 2016.
… [The plaintiff] said he was otherwise medically well and suffered from no significant medical illness or condition and, in particular, had not had any inflammatory joint disease diagnosed or treated in the past.
There was no other significant past history.”[56]
[56]JCB 166
59In the course of the physical examination, the Panel noted there was no evidence of wasting to the right shoulder girdle muscles; however, there was some focal muscular weakness of the shoulder girdle muscles due to pain with movement. The plaintiff noted there was tenderness on palpation over the right acromioclavicular joint and anterior and posterior aspects of the right shoulder and over the subacromial bursa.[57]
[57]JCB 167
60The Panel’s diagnosis was as follows:
“… [the plaintiff] is suffering from supraspinatus tendinopathy of the right shoulder. The Panel noted the examination findings of the previous Medical Panel and concluded … [the plaintiff’s] condition has unchanged in nature but has increased in severity since the previous Panel’s assessment in 2018 but has largely remained unchanged over the previous few months.
…
The Panel therefore concluded that for the purposes of impairment, … [the plaintiff’s] current physical condition of his right shoulder is stable and permanent.”[58]
[58]JCB 169
61The Panel, in its final paragraph, stated that it was satisfied there was some loss of use to the right shoulder and right upper limb to the plaintiff as a result of his injury, but it was not severe enough to be regarded as a total loss of use of the right shoulder or right upper limb.[59]
[59]JCB 171
Dr Graeme Doig, general orthopaedic surgeon
62Dr Doig examined the plaintiff on 5 July 2021 and prepared a report dated 12 July 2021. In his clinical examination of the plaintiff, Dr Doig noted as follows:
“… He remained locally tender over the antero-lateral rotator cuff with slightly restricted, active range of motion arcs which will be accurately documented in his whole-person impairment assessment. There was no neurological deficit of the upper limb.”[60]
[60]JCB 158
63Dr Doig’s diagnosis was that the plaintiff suffered:
“… a soft-tissue injury to the dominant right shoulder with ongoing mild impingement. The … [plaintiff] continues to suffer from minor restrictions.”[61]
[61]JCB 159
Dr Terence Saxby, orthopaedic surgeon
64Dr Saxby prepared a report for the defendant solicitors dated 24 October 2023. Dr Saxby’s examination was for the purposes of both the right shoulder and the injury to the feet alleged in respect of the IKON injury. Dr Saxby noted that the plaintiff stated he had no prior problems with his shoulder.[62] Dr Saxby’s opinion in respect of the right shoulder was that the plaintiff had a mild rotator cuff tendinopathy with subacromial impingement.[63] In respect to the right shoulder, Dr Saxby noted that there was –
“… some restriction of motion in the right shoulder but at this stage the impairment is not likely to alter. This is in terms that there is likely to be some ongoing restriction of shoulder motion.”[64]
[62]JCB 224
[63]JCB 225-226
[64]T227
Loss of earning capacity
65The plaintiff, in his affidavit dated 3 May 2022, says he has lost gross payments of $3,144.28 before tax per week. He states this is a result of the injury that he received at Hertz, and also IKON. He went on to state that he provided his Notices of Assessment to the ATO for the three years before his injury.[65]
[65]JCB 13
66The plaintiff’s Notices of Assessment for the years ending 30 June 2015, 30 June 2016 and 30 June 2017 appear in the Joint Court Book between pages 364 and 373. The taxable incomes for the plaintiff were as follows:
· The year ending 30 June 2015 ꟷ $1,040
· The year ending 30 June 2016 ꟷ $38,045
· The year ending 30 June 2017 ꟷ $57,320.
67The taxable income records have no bearing or correlation to the claim made by the plaintiff that he is losing a sum in excess of $3,000 a week as a result of his injury.
68On the basis of the IPAR and Carfi reports, together with Nabenet’s vocational assessment report dated 17 October 2023, the plaintiff has a capacity to perform some light duties on a full-time basis with his right shoulder injury on its own. The right shoulder injury does not preclude the plaintiff from engaging in full-time employment which involves light duties only. Each of the roles identified by Nabenet would exceed the 60 per cent limit of the pre-injury earnings, approximating $60,000 per year.
69The plaintiff has failed to establish an earning capacity of greater than 40 per cent as a result of the right shoulder injury received at his place of employment on 26 February 2017.
70The plaintiff’s serious injury application in respect of loss of earning capacity arising from the physical injury to his shoulder or his psychiatric or psychological injury is dismissed.
Pain and suffering
71The plaintiff relies on the consequences set out in his affidavit and his statement in respect of the injury to his right shoulder which he received at his place of work with Hertz.
Pain
72The plaintiff sets out that he experiences pain in his right shoulder as a result of the injury to it. The plaintiff has been prescribed Mobic in order to control the pain by his general practitioner. The last of the documented prescriptions for Mobic was on 24 April 2021.[66] The plaintiff’s evidence is that he had been obtaining Mobic from friends and neighbours. He also stated that he had other pain-relieving medications from friends, such medications having foreign names. As I understood the plaintiff’s evidence, he was prepared to use pain-relief medication which had been obtained overseas and given to him by friends. I accept the plaintiff’s evidence in this regard.
[66] JCB 381
Sleep
73The plaintiff has stated that his sleep is interrupted due to his right shoulder injury. He has consistently given a history to doctors that he has disturbed sleep when he rolls onto his right side. In his affidavit, he also confirms that his sleep has been interfered with as a result of the right shoulder injury, stating:[67]
“… I am suffering from having a good sleep because the pain in my right shoulder kept waking me up during sleeping.”[68]
[67]JCB 12 and 16
[68]JCB 12
74In the serious injury application, under the question “What other symptoms have you suffered because of the impairment?”, it was stated:
“Sleeping: he could not sleep well because his chronic right shoulder and upper middle spine are very painful when he sleeps. … .”[69]
[69]JCB 16
Hobbies
75The plaintiff has given evidence that, as a result of his right shoulder injury, he has been unable to pursue his sporting activities that were part of his life prior to the injury. He states he was unable to swim, play basketball or any racquet-ball games. This is a consistent history he has given to some of the medical examiners. It is also consistent with his affidavit and statement relating to this claim for serious injury.[70]
[70]JCB 13 and 17
76I accept the plaintiff has lost his ability to engage in these activities in his early to mid-thirties and onwards.
Conclusion
77I find that the combination of the consequences complained of as a result of the right shoulder injury to the plaintiff amount to being “more than significant or marked” and “at least very considerable” in comparison to a range of possible consequences arising from a right shoulder injury.
78I grant leave to the plaintiff to bring proceedings against Hertz to recover damages for pain and suffering for the injury suffered by him to his right shoulder on or about 26 February 2017.
79I will hear the parties on costs.
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