Thambirasa v Toyota Motor Corporation Australia Limited
[2017] VCC 842
•30 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-05209
| SURESH THAMBIRASA | Plaintiff |
| v | |
| TOYOTA MOTOR CORPORATION AUSTRALIA LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 and 9 June 2017 | |
DATE OF JUDGMENT: | 30 June 2017 | |
CASE MAY BE CITED AS: | Thambirasa v Toyota Motor Corporation Australia Limited | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 842 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to right shoulder – secondary psychiatric disorder – whether meet the statutory test of seriousness – claim for pain and suffering and loss of earning capacity – credit
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave granted to the plaintiff leave to bring a proceeding to recover damages at common law for both pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A N Murdoch QC with Mr A C Dimsey | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr D M Masel SC with Mr P A Johnstone | Minter Ellison |
HIS HONOUR:
1 The plaintiff is a thirty-eight-year-old married man with two children who suffered an injury to his right shoulder in the course of, and within the scope of, his employment with the defendant on 11 July 2011. He subsequently suffered a secondary psychiatric disorder.
2 The plaintiff seeks leave to bring a proceeding to recover damages at common law relying on the definitions of “serious injury” under s134AB(37)(a) and (c) of the Accident Compensation Act 1985.
3 Mr N Murdoch QC appeared with Mr A Dimsey of counsel for the plaintiff, and Mr D Masel SC appeared with Mr P Johnstone of counsel for the defendant.
4 The defendant raised a multitude of issues which I will summarise later, but in order for them to make sense, it is necessary for me to summarise a fair amount of the evidence that was adduced at the hearing.
The Plaintiff’s injury and treatment
5 On 11 July 2011, the plaintiff was performing his normal duties when he experienced sudden sharp pain in his right shoulder. He initially sought treatment from the defendant’s medical centre[1] before seeing Dr Sivaratnam on 3 August 2011. He was referred to have an x-ray and an ultrasound, prescribed anti-inflammatory medication, and referred to physiotherapy.[2]
[1]Plaintiff’s Court Book (“PCB”) 24
[2]PCB 89
6 Subsequently, the plaintiff saw Dr Navani, general practitioner, on 26 August 2011 who took over his medical treatment. He referred the plaintiff to Dr Stockman, rheumatologist, who the plaintiff first saw on 4 November 2011, and then on three subsequent occasions, with the last being on 24 May 2015.
7 Dr Stockman referred the plaintiff to have an MRI scan of both his right shoulder and neck.[3] He advised him to continue using anti-inflammatory medication and to attend physiotherapy. He referred him to have two subacromial steroid injections into his right shoulder. He considered that the plaintiff had suffered a right rotator cuff tendinopathy and soft tissue pain in the right side of the neck.
[3]PCB 224-225
8 Dr Stockman considered that the plaintiff’s medical condition was not improving so he referred him to Mr Pullen, orthopaedic surgeon, who the plaintiff first saw on 13 June 2012. Initially, he referred the plaintiff to have an x-ray guided injection into his right acromioclavicular joint after which he reviewed the plaintiff. The plaintiff admitted to a 50 percent improvement which was short lived.
9 Mr Pullen then undertook a right shoulder arthroscopy during which he decompressed and excised the outer end of the right clavicle on 11 December 2012. Mr Pullen advised the plaintiff that he would need 6 to 8 weeks off work before being able to return on light duties. He reviewed him on a number of occasions, the last being 15 August 2013 when he considered that the plaintiff had obtained an excellent result from the surgery.[4]
[4]PCB 68-71,72-75 and 80-81
10 Dr Navani referred the plaintiff back to Mr Pullen. The plaintiff saw him on 16 December 2015 and 25 May 2016. He was referred to have a further MRI scan which was undertaken on 5 April 2016. Mr Pullen considered that it did not show any significant pathology to explain the plaintiff’s complaints of persistent right shoulder pain and stiffness. Mr Pullen considered that perhaps they were related to a medical condition affecting the plaintiff’s neck. He advised the plaintiff to consult a neurosurgeon to investigate whether he had a medical condition affecting his neck, and additionally, he advised him to see a pain management specialist.[5]
[5]PCB 80-81
11 Dr Navani then referred the plaintiff to Dr Thomas, consultant in rehabilitation and pain medicine, who the plaintiff first saw on 10 July 2015. On that occasion, Dr Thomas noted that the plaintiff was “very distressed” by his inability to return to work. The plaintiff told him that being off work was “soul destroying for [him]”. At that time, the plaintiff had been prescribed the following medication: Pristiq, Endep and Celebrex. That medication had been prescribed by Dr Navani. Mr Thomas considered that the plaintiff should engage in a pain management rehabilitation program.
12 Dr Thomas examined the plaintiff again on 9 May 2016, 15 July 2016 and 27 January 2017,[6] by which time he had completed an outpatient pain management program which is described as “phase 1”. He was unable to complete phase 2 because of childcare problems relevant to his two young children. Dr Thomas last reviewed the plaintiff on 12 May 2017.
[6]PCB 111.1 – 111.4
13 The plaintiff complained of right-sided neck pain to Dr Thomas. On examination, he noted that there was a very mild decrease in the range of movement of the plaintiff’s neck. He also noted that the plaintiff’s right shoulder seemed to be reasonably good, with no signs of impingement. He found some wasting around the back of the shoulder girdle which he described as “nothing dramatic”.[7]
[7]PCB 111.2
14 At the time when the plaintiff saw Dr Thomas on 15 July 2016, Dr Thomas noted the following:
“... The dominant problem, however, had been one of high emotional distress, catastrophic thought processes and his inability to shift off the perceived injustices that he sees relating to his injury and future prospects of work. He was under the care of a psychiatrist and has a psychologist and I note that he was on a fair amount of antidepressant medication … .”[8]
[8]PCB 109
15 Dr Thomas considered that the plaintiff’s emotional state was “still very problematic” by the time he saw him on 27 January 2017 and that he was “still highly catastrophising”, and he added that “he builds up very quickly from being quite calm to being very distressed”.[9]
[9]PCB 111.3
16 Dr Thomas stressed that it was imperative that the plaintiff continue to exercise, noting that the plaintiff’s depression would be a problem for the plaintiff in maintaining motivation.
17 In relation to the plaintiff’s right shoulder, Dr Thomas considered that the plaintiff could return to work, but he had not addressed the work and the hours of work which would be the basis of a return to work.[10]
[10]PCB 111.4
18 The emotional problems referred to by Dr Thomas were understood by Dr Navani, because he referred the plaintiff to Ms Carli, psychologist, who the plaintiff first saw on 5 August 2014. She was still treating the plaintiff by the time she composed her last report dated 22 August 2016. She considered that the plaintiff was suffering from an Adjustment Disorder with Mixed Anxiety and Depression “both in the Severe Range”.[11]
[11]PCB 104
19 The plaintiff was then referred to Dr Lewis, psychiatrist, who the plaintiff first saw on 9 December 2015. He continues to treat the plaintiff. He considered that the plaintiff presented with significant depressive symptoms and was experiencing a particular hopelessness and despondency in the context of chronic pain, physical limitations, and the recognition that he is dealing with a chronic medical condition. He prescribed him a raft of antidepressant medication: Pristiq (200 milligrams) daily, Valdoxan (25 milligrams) daily, Sodium Valproate (200 milligrams) daily and Seroquel (25 milligrams) as required, which he described as an antipsychotic medication to treat the plaintiff’s agitation.[12]
[12]PCB 117
20 In addition to the symptoms described by Dr Lewis in his last report dated 26 April 2017,[13] he noted that the plaintiff “can experience quite intense suicidal ideation” and when that occurs, he requires intensive support. He noted that the medication is well-tolerated except for Seroquel, which can have a hangover effect.
[13]PCB 116-121
21 Dr Lewis was asked whether the plaintiff could return to a number of forms of employment, being a security officer (aviation/court security), security officer (gatehouse), courier (pathology), mobile food van salesperson and a meter reader. He considered that the plaintiff could work as a gatehouse security officer as the most ideal job, and that he could work three days per week.
22 Despite expressing that opinion regarding the plaintiff’s capacity to return to work, he added that the plaintiff had become demoralised and despondent and that he had a concern that those feelings had become “quite entrenched”. He then related aspects of the plaintiff’s social, domestic and recreational activities which the plaintiff said have been affected by his psychiatric condition, including, being socially withdrawn; having little motivation to leave his house; interference with his enjoyment of cooking and enjoying playing social games of cricket with friends.
23 Dr Navani continues to treat the plaintiff. In his report dated 12 March 2017,[14] he considered that the plaintiff has the physical capacity to return to suitable employment full time with the following restrictions:
[14]PCB 62-65
· lifting less than 4 kilograms;
· no overhead/above chest level activities; and
· being able to work self-paced.
24 Dr Navani observed that the amount of psychotropic medication the plaintiff is now taking will impair his concentration, thought processes and memory, and would necessitate him not working with machinery or in areas where focus and concentration is required. He considered that the plaintiff could do all of the jobs commented on by Dr Lewis except for work as a meter reader.[15]
[15]PCB 39 and 63-65
25 Dr Navani considered that the plaintiff had deteriorated “quite markedly in his mental state” to the point where he described him as follows:
“... His moods are increasingly fragile with agitation, constant distress with very poor coping skills. He has become increasingly suicidal and cannot see any future for himself. He has mentioned to me a number of times in recent months that ‘life is not worth living’ and he lashes out in anger and frustration particularly on his family. He feels he cannot trust himself when he is around his 9 year old son as he cannot control his temper.”[16]
[16]PCB 62
26 Despite Dr Navani’s view that the plaintiff has a physical capacity to return to full-time suitable employment, he considered that he is currently not capable of returning to suitable employment because of the grave nature of the consequences of the secondary psychiatric condition.[17]
[17]PCB 64
The Plaintiff’s medico-legal assessments
27 The plaintiff was examined by Mr Chehata, orthopaedic surgeon, on 7 June 2016, and on 21 March 2017. In his last report dated 29 March 2017,[18] his attention was directed to a series of questions largely relevant to the nature and extent of the plaintiff’s right shoulder injury. He considered that the plaintiff had suffered subacromial and subdeltoid bursitis with tendinosis throughout the supraspinatus tendon, leading him to conclude that the plaintiff was suffering from reactive bursitis.
[18]PCB 131-133
28 Mr Chehata was aware that the plaintiff had a “severe psychiatric disorder”, which he described as “overwhelming” the plaintiff. He was asked to consider the nature and extent of the plaintiff’s right shoulder injury alone by excluding the secondary psychiatric injury. He answered that question in the following way:
“Mr Sambourasa (sic) is quite young, but because his language is incredibly poor, having not finished year 12 in Sri Lanka, and not being computer literate I believe he is unemployable. I cannot imagine based on his right shoulder alone, from the weakness, pain and restriction of range of movement, that he will ever be employable, and I do not foresee that there is ever any use for him to be retrained, reintegrated or for any occupational rehabilitation to occur. … .”[19]
[19]PCB 132.
29 Dr Middleton, occupational health and rehabilitation consultant, examined the plaintiff on 14 December 2015 and 13 April 2017. He provided three reports of extraordinary length and detail covering some 57 pages. In his last report dated 6 May 2017,[20] he answered a number of questions relevant to the plaintiff’s capacity to return to suitable employment. It is not my intention to rehearse all of the instructions obtained by Dr Middleton directly from the plaintiff and from the documentation he was provided because of its sheer volume, but I am satisfied that he had all of the relevant instructions and documentation to be in a position to adequately deal with the plaintiff’s capacity to return to suitable employment.
[20]PCB 183-198
30 The upshot of Dr Middleton’s opinion, based on the nature and extent of his right shoulder injury alone, is that the plaintiff is permanently incapacitated for any type of employment that has a significant physical/manual component which would include each of the jobs which I have summarised from Dr Lewis’ report.
31 Dr Strauss, psychiatrist, examined the plaintiff on 9 March 2016. He noted that the plaintiff was suffering from a “genuine physical injury”, and it would appear that in that context, he considered that the plaintiff had developed a moderately severe Adjustment Disorder with Mixed Anxiety and Depressed Mood. He considered that there was an urgency in providing the plaintiff with rehabilitation which needed to include pain management and vocational assessment with appropriate guidance and retraining. Dr Strauss considered that the plaintiff’s prospects of returning to suitable employment were “small” and that his prognosis was guarded.[21]
[21]PCB 134-140
32 The plaintiff was examined by Dr Yong, specialist occupational physician, for the defendant on 20 August 2013, 3 February 2016 and 29 March 2017. His last report dated 29 March 2017[22] comprises a reassessment of the plaintiff’s capacity to return to suitable employment and a review of his previously expressed opinions in early reports. Like Dr Middleton, Dr Yong was provided with not only instructions directly obtained from the plaintiff, but also from documentation he was provided. He considered that the plaintiff had suffered a persisting right shoulder rotator cuff syndrome, which is not the diagnosis made by Mr Pullen and Mr Chehata; however, I am not convinced that much turns on that. He was also aware that the plaintiff suffered from a secondary psychiatric condition.
[22]DCB 32a-32i
33 Dr Yong considered that the plaintiff had the capacity to perform tasks with the following restrictions:
· avoiding right arm above shoulder height tasks
· reaching on a repeated basis
· avoiding right arm firm pushing or pulling repeatedly; and
· avoiding lifting more than 5 kilograms on a repeated basis.
34 Dr Yong reviewed his previous opinion relevant to each of the jobs referred to by Dr Lewis. He considered that the plaintiff had the capacity to undertake the tasks required in each of those jobs. I should pause here to note that the defendant submitted that I should not consider the job of aviation/court security officer because of the risk of needing to apprehend and restrain, which would inevitably place the plaintiff at risk of suffering an aggravation of the condition of his right shoulder.
35 The Defendant’s Court Book contains a very large volume of what are described as “Rehabilitation Documents” from page 63 through to page 176. I was referred to relevant parts of that material to understand what each of the jobs referred to by Dr Lewis, Dr Middleton and Dr Yong involved. Again, the material is voluminous. I think it is sufficient for me to refer to a summary of what each of those jobs involve which Dr Yong summarised in his report dated 11 July 2016.[23]
[23]DCB 28-32
36 Ms Jakovljevic, occupational therapist, interviewed the plaintiff for the defendant on 18 April 2016 for the purpose of undertaking a vocational assessment. The product of the interview and assessment is contained in a very long report dated 23 June 2016 which includes materials relevant to the jobs referred to by Dr Lewis, Dr Middleton and Dr Yong.[24]
[24]DCB 106-163
37 Ms Jakovljevic was concerned to absorb the documentation she was provided to understand the nature and extent of the plaintiff’s right shoulder injury in the course of undertaking the vocational assessment. It is clear that she considered that he had sufficient education and transferable skills to work in the very jobs which Dr Yong considered to be suitable.[25]
[25]DCB 122-123
38 Ms Jakovljevic provided four supplementary reports which are largely devoted to passing comment on a report of Ms Rintoule, a human resources consultant who was engaged by the defendant, and reports of Dr Middleton.
39 I do not propose to spend much time referring to the reports of Ms Rintoule.[26] I am not convinced that a human resources consultant has the qualifications and experience equating to an occupational physician to carry much weight in an application like this and I make the same comment in relation to an occupational therapist. It cannot be denied that the opinions they have expressed are somewhat helpful, but where I am really assisted in determining the questions relevant to this application are by the treating medical practitioners and the medico-legal practitioners, and in particular, the medical practitioners who possess a special interest in occupational medicine, who are experienced and skilful in assessing a capacity to return to suitable employment.
[26]The reports are dated 19 August 2016 (PCB 199-217) and 14 September 2016 (PCB 218-221)
40 Lastly, Dr Mendelson, psychiatrist, examined the plaintiff for the defendant on 27 July 2016 and 1 February 2017. He was also provided with a large quantity of documentation. On the second occasion he examined the plaintiff, he reached the same diagnosis that he had on the previous occasion when he examined the plaintiff, and that is, an Adjustment Disorder with Mixed Anxiety and depressive reaction. He considered that the plaintiff had a capacity to return to suitable employment within the limitations of his current physical condition.[27]
[27]DCB 51j-51l
41 In addition, Dr Mendelson interpreted the fact that the plaintiff told him that he thought the defendant had treated him unfairly as a “perceived injustice” which, according to literature which he appended to his report, is a factor which promotes claims of chronic pain, can contribute to the perpetuation of complaints of pain, and may tend to amplify an experience of pain.[28]
[28]DCB 51l
The Plaintiff’s evidence
42 The plaintiff swore three affidavits[29] in which he described his medical treatment and the consequences of the right shoulder injury and the secondary psychiatric injury.
[29]PCB 1-7, 8-13 and 14-17
43 In relation to his right shoulder injury he suffers persisting pain which runs down to the base of his neck on the right side. He suffers regular headaches. His sleep is interrupted because of right shoulder pain. His social, domestic and recreational activities are interfered with by the right shoulder pain, for example playing social games of cricket with friends and with his son, going to social gatherings like picnics and cooking. He now takes medication to treat the pain which I understand is principally Celebrex and Panadol Osteo.[30]
[30]Those consequences are principally set out in the plaintiff's last affidavit at PCB 14-17, and also referred to in his earlier affidavits
44 In relation to his secondary psychiatric injury, the plaintiff describes a worsening mental state with overwhelming feelings of depression and anxiety. He experiences a sense of hopelessness and shame because he is unable to work and care and provide for his family. He feels that he is just existing. He has shown anger towards his wife and children. He is mistrustful of people. He suffers interference with his memory and concentration. He is on a raft of medication prescribed by Dr Lewis, which I have referred to above.[31]
[31]PCB 5-6, 9-12 and 16-17
45 Under cross-examination, the plaintiff’s evidence relevant to the nature and extent of his right shoulder injury and secondary psychiatric injury was challenged. He gave a consistent account of the consequences of both injuries when compared to what he deposed to in his affidavits and the histories recorded by the medical practitioners who have provided reports in this application. At various times the plaintiff became hysterical and tearful, which appears to be consistent with the catastrophic thinking and behaviour which has been observed of him, for example by Dr Thomas.
46 Video surveillance film was shown of the plaintiff which I will now summarise.[32] The first film was taken on 7 October 2016:
[32]Exhibit 1 - films taken on 7, 10 and 11 October 2016, and exhibit 2 - film taken on 1 December 2015
· 8.41am – the plaintiff was with his wife and two children. He opened the car door with his left hand, got into the car and drove off with his children.
· 8.48am – the plaintiff leaned into the passenger side of the car. He opened a door with his right hand. He appeared to move his arms in a swinging motion.
· 8.54am – the plaintiff was swinging both of his arms.
· 8.56am – the plaintiff jogged for about four minutes or so, moving both arms with some apparent freedom.
· 9.00am – the plaintiff ceased jogging and walked, swinging both arms.
· 9.07am – the plaintiff was still swinging his arms, but not as much with his right arm.
· 9.12am – the plaintiff raised his right arm at the elbow and his hand to his face. He was still swinging his arms.
· Between 9.20am and 11.40am – the plaintiff was moving around the outside his home. He went to his car, to the front door of his house, around the yard, picked up rubbish, which he deposited in a bin at one point at 10.29am. He sat on his front porch and moved his right hand across to his left shoulder.
47 The next film shown was taken on 10 October 2016:
· 8.45am – the plaintiff was in front of his house with his arms folded.
· 8.51am – the plaintiff was walking with his children down a street, apparently taking them to school.
· 9.06am – the plaintiff was at a petrol station filling his car with petrol.
· 9.14am – the plaintiff was at his front door and had his right arm extended against the wall at about a 30-degree angle, leaning against the wall.
48 The next film shown was taken on 11 October 2016:
· 9.54am – the plaintiff was walking along a street with his right arm somewhat crocked against his body, but swinging it to some degree.
· 10.00am – the plaintiff was at his front door and had his right arm extended against the wall at about a 30-degree angle, leaning against the wall while removing his shoes.
49 The next film shown was taken on 1 December 2015:
· Between 7.23am and about 8.00am – the plaintiff was walking, swinging both arms, but was not swinging his right arm very much. It was held closer to his body than was observable on other occasions.
· 8.08am – the plaintiff again extended his arm against the wall of his house similar to what I have described earlier.
· 11.05am – the plaintiff was facing the fly-wire door of his house, and in that position, raised both his arms fully and extended them upwards while fixing a Christmas decoration against the door.
50 I should make it plain at this point that my summary of the films is necessarily brief, and calculated only to capture the emphasis placed upon the films by the defendant.
51 The plaintiff admitted that he was the person shown in all of the films. Under cross-examination, he denied that he was swinging his arms within the range of what he understood to be “swinging”. He demonstrated from the witness box that he thought swinging was something far more exaggerated than what was shown in the films. In earlier cross-examination, he denied that he was able to swing his right arm. He told Dr Middleton that he does not swing his arms.[33] He admitted that he was able to engage in all of the activities shown in the films, and emphasised that he was told to exercise by treating medical practitioners, and what was shown in the films was him doing just that. He added in a very emotional way that the person who took the films had not shown him sitting on a bench in a park crying, and I took that to mean that he has done that.
[33]PCB 186
52 Under re-examination, the plaintiff referred to his neck movements which were rather subtly observable in the films which he said he did to gain some relief by moving his neck to the left side. It is something he said he does when the pain he experiences increases. He said that he jogs, but not every day, but walks most days. He explained that the positioning of the Christmas decoration was undertaken to please his children.
53 The plaintiff was initially off work until February 2013 when he returned to work on light duties. He accepted a voluntary redundancy in November 2013. He obtained alternative employment in mid-2014 with Airport Doors in Melton, but ceased working for that company after four months because of problems with his right shoulder. He found further alternative employment in April 2015 doing process work, but ceased work with that company, again, because of problems with his right shoulder. He has not worked since.
54 The plaintiff completed a course in security and obtained Certificate II, and subsequently Certificate III. He has applied for work through recruitment agencies. He was referred to a schedule which he said is an accurate account of the applications for jobs he has made, totalling some ninety-three jobs.[34]
[34]PCB 234-237
55 Under cross-examination, the plaintiff said that he could return to work which did not involve heavy lifting. He said that work as a quality assurance officer and as a cashier is work that he could undertake. The plaintiff’s difficulty regarding a return to work seem to be based upon the fact that no one has offered him a suitable job.[35]
[35]Transcript 38-39
Findings on the evidence
56 I should firstly deal with a number of issues of law raised by the defendant.
57 The defendant submitted that the plaintiff had suffered both an injury to his right arm and his neck. Therefore, it was for the plaintiff to “disaggregate” the consequences of the impairment of the right shoulder from the consequences of the impairment of the neck.
58 Of course, that submission depended on a finding that the plaintiff had in fact suffered a neck injury. I am not satisfied that he did. The defendant relied upon the following evidence to demonstrate that the plaintiff had in fact suffered a neck injury:
· Dr Navani’s diagnosis of an associated soft-tissue injury to the neck with underlying cervical spondylosis.[36]
[36]PCB 29
· Mr Pullen’s thought that the plaintiff’s complaints of upper limb symptoms might be related to his neck. He suggested investigation by a neurosurgeon.[37]
[37]PCB 81
· The plaintiff’s complaint to Dr Thomas of tenderness to the right side of his neck and mid neck region when examined with a very mild decrease in the range of some movements of the neck.[38]
[38]PCB 111.2
· Mr Chehata’s diagnosis of mild disc bulging at C3-4 and C4-5.[39]
· Dr Middleton’s reference to the plaintiff’s neck in the context of the treatment provided by Mr Jones,[40] physiotherapist, who found stiffness and tenderness to the right side of the neck.[41]
· An assessment by the Medical Panel to an impairment of the neck.[42]
[39]PCB 125
[40]PCB 155
[41]PCB 94
[42]PCB 122
59 There is no hard evidence that the plaintiff suffered an independent injury to his neck. The radiology demonstrates that he has degenerative changes at a number of levels in his neck, but the evidence relied upon by the defendant which is said to demonstrate that there is an independent injury to the plaintiff’s neck, is hardly that. What is clear to me is that the plaintiff suffered an injury to his right shoulder for which he had surgery, and associated to his right shoulder injury is pain and perhaps restriction of movement to the right side of the neck. On balance, it appears to me that what problems the plaintiff was having with the right side of his neck appear to be related to his right shoulder. Therefore, I am not satisfied that there is any need for disaggregation.
60 The conclusion I have just reached disposes of the second issue of law raised by the defendant. It was that if the plaintiff had suffered injuries to both his right shoulder and neck, then the secondary psychiatric condition was a response to both. If that were so, then it was for the plaintiff to demonstrate that the secondary psychiatric condition was a response to the right shoulder and not both injuries.
61 To put this beyond doubt, on balance, I am satisfied that the plaintiff suffered an injury to his right shoulder and did not suffer an independent injury to his neck. I am also satisfied that the onset of the secondary psychiatric condition is a response to the injury to the plaintiff’s right shoulder.
Serious Injury
The Plaintiff’s right shoulder
62 I am not satisfied that the impairment of the function of the plaintiff’s right shoulder is “serious”, either in relation to pain and suffering or loss of earning capacity. My reasoning in reaching that conclusion is as follows.
63 Mr Pullen was satisfied that the surgery had returned the plaintiff’s right shoulder to a sound level of functioning, leaving him with rather modest residual problems. Dr Navani appears to agree with Mr Pullen and he said as much in his last medical report which I have referred to above, as does Dr Yong. The plaintiff considers that he can work, and indeed, he stated unequivocally that he wants to work. He accepts that he can work in jobs, for example as a quality assurance officer and as a cashier.
64 The extent to which the plaintiff has suffered interference with his social, domestic and recreational pursuits must be seen in the context of the opinions of Mr Pullen and Dr Navani, and, more importantly, the plaintiff’s willingness and capacity to return to the suitable employment I have referred to above.
65 I do not consider that the level of interference with the plaintiff’s social, domestic and recreational pursuits and the need to use Celebrex and Panadol Osteo raise the consequences of the impairment of the function of his right shoulder above being perhaps significant and maybe marked.
66 Looking at it another way, if the plaintiff were offered a job, it is clear that he would take up that job. If it was something in the line of a quality assurance officer or a cashier, then the plaintiff would undertake that work full time, and Dr Navani would approve of a return to work of that kind. If that was so, then the plaintiff’s consequences would amount to a reduction of his capacity to work, interference with some social, domestic and recreational pursuits and the need to use Celebrex and Panadol Osteo for pain relief.
67 I am reluctant to place too much emphasis on film, save where the film is at such odds with the plaintiff’s account that the reasoning that the plaintiff’s evidence cannot be accepted is an inevitable conclusion. In this instance, the films show the plaintiff exercising and apparently being able to move freely, and an ability to go about a daily routine. However, the plaintiff has been told to exercise, so it was not as if what I saw was a surprise. The fact that he is able to use his right arm in a swinging motion, and to otherwise move it with some degree of freedom through a full range of movement does suggest that he has a level of function in his right shoulder which is not so great as to dramatically reduce his capacity to undertake light manual functions in suitable employment.
68 Whilst the foregoing requires close analysis to determine whether those consequences are serious, I think that when those consequences are judged by a comparison with other cases in the range of possible impairments or losses, they cannot be fairly described as being more than significant or marked and certainly not as being at least very considerable.
69 The conclusion I have reached runs counter to the opinions of Dr Middleton and Mr Chehata; however, they were left with the impression that the plaintiff’s capacity to return to suitable employment was very unlikely, and that formed part of their analysis of the plaintiff’s injury in reaching their ultimate conclusions that he has no capacity for suitable employment. They were not in the same position I am in with the evidence of the plaintiff regarding his own view of his capacity to return to suitable employment.
The secondary psychiatric injury
70 I am satisfied that the secondary psychiatric condition is severe. I propose to consider it in the context of loss of earning capacity first.
71 Dr Navani’s opinion regarding the gravity of the plaintiff’s secondary psychiatric condition demonstrates that it is an overpowering and overwhelming condition. That is a conclusion which resonates from the language he used to describe that condition. He describes the deterioration as “quite marked”. He described the plaintiff’s mood as “fragile”. He described his coping skills as “poor”. He described “suicidal” tendencies, and the plaintiff’s account that he does not consider that his life is worth living.[43]
[43]PCB 62
72 Dr Lewis’ account of the plaintiff’s psychiatric symptoms is very similar. It must be remembered that he has prescribed the plaintiff a raft of significant medication to treat the secondary psychiatric condition. It is the very medication which Dr Navani considers will impair his concentration, thought processes and memory, and would necessitate him not working with machinery.
73 Dr Lewis has analysed the plaintiff’s secondary psychiatric condition from the viewpoint of the expert psychiatrist, whereas Dr Navani has done so from the viewpoint of the concerned general practitioner, but notwithstanding their different viewpoints in medical practice, their opinions appear to me to be reconcilable save in one area. Dr Navani considers that the plaintiff has no capacity for work currently whereas Dr Lewis considers that the plaintiff could return to work for three full days per week.
74 The gravity of the plaintiff’s symptoms as recorded by Dr Lewis make his opinion that the plaintiff could work three full days per week difficult to reconcile. One would think that to have retained such a significant capacity to return to work, that the symptoms would not be so grave, requiring such a significant raft of medication. Unfortunately, Dr Lewis has not disclosed a pathway of reasoning in support of the conclusion that the plaintiff could return to suitable employment for three full days per week.
75 The combination of the plaintiff’s evidence of the extent to which he is impaired by the secondary psychiatric condition and the view of Dr Navani point to the plaintiff having a grave secondary psychiatric condition. I prefer the opinion of Dr Navani that the plaintiff has no current capacity for work due to the consequences of the secondary psychiatric condition. I reject the view of Dr Lewis that the plaintiff has some capacity to return to suitable employment. I also reject the opinion of Dr Mendelson, again because I prefer the evidence of the plaintiff and Dr Navani.
76 A finding that the loss of earning capacity consequences of the impairment of function satisfy the statutory test does not then require a separate finding that the pain and suffering consequences are also “serious”.
77 In the circumstances, I am satisfied that the plaintiff suffered a secondary psychiatric reaction as diagnosed by Dr Lewis. I am satisfied that it is of such gravity that, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders that it may fairly be described as being more than serious to the extent of being severe.
78 I will grant the plaintiff leave to bring a proceeding to recover damages at common law for both pain and suffering and loss of earning capacity.
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