Turab v Toyota Boshoku Australia Pty Ltd

[2011] VCC 1213

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-10-00384

AHMED TURAB	Plaintiff
v
TOYOTA BOSHOKU AUSTRALIA PTY LTD	First Defendant
and
GALLAGHER BASSETT SERVICES WORKERS	Second Defendant

COMPENSATION VIC PTY LTD

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	28 and 29 July 2011
DATE OF JUDGMENT:	15 August 2011
CASE MAY BE CITED AS:	Turab v Toyota Boshoku Australia Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2011] VCC 1213

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – Accident Compensation Act 2005 – serious injury – injury to right shoulder and arm – issue as to credit – application in respect of pain and suffering only

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T P Tobin SC and	Clark, Toop & Taylor
Mr R N Morrow
For the Defendants	Mr D R Myers	Minter Ellison
HIS HONOUR:

1          In this proceeding, the plaintiff seeks leave to commence an action claiming damages for the pain and suffering consequences of an injury suffered by him in the course of his employment with the first defendant. The injury relied upon by the plaintiff is described in his Proposed Statement of Claim as right rotator cuff tendonitis with referred pain into the scapular and neck and right de Quervain’s tenosynovitis. The impairment of function involved is that of the right arm and the cervical spine.

2          In the proceeding, the plaintiff relies upon affidavits sworn by him on 30 June 2009, 26 August 2010, 12 December 2010 and 30 June 2011 respectively. The plaintiff was required by the defendants to attend for cross-examination and gave evidence in re-examination. Otherwise the parties rely upon material in the Court Book and various exhibits tendered by them.

3          In his first affidavit, the plaintiff deposed as follows:

• He was born in Ethiopia and migrated to Australia in 1993. He had been educated to Year 12 in Ethiopia. He said that whilst on arrival in Australia he did not speak any English, he had attended an adult migration service for some 510 hours, with the result that his spoken English was now good and he was able to read and write reasonably. He said that he was also computer literate, having completed courses in Australia.

• He was born on 18 April 1975 and commenced employment with the first defendant in 2003. Prior to commencing employment with the first defendant, he had worked as a machine operator, a forklift driver and a taxi driver. He said that he had suffered injuries to his right shoulder, arm and wrist in 2006 and 2007, which injuries were caused by the heavy repetitive work he was required to perform in the course of his employment.

• By June 2007, as a result of symptoms which involved pain in his arms, elbows and wrists, the plaintiff attended his general practitioner, who prescribed anti-inflammatory medication and certified him fit for alternative duties, which he then undertook. As at June 2009, the plaintiff deposed that he had been treated with injections into his shoulder and into his wrist, that he continued to suffer from right shoulder pain which he managed by using Panadeine Forte for pain relief, and that he had been advised that he may require surgery and treatment for the condition in his shoulder.

• He continued to suffer from sharp shoulder blade pain which was constant and which extended into his neck and down his arm. He described this pain as being severe and as being aggravated by movements of his shoulder. He said that the pain which was present in his shoulder limited his ability to undertake computer activity, to exercise, to engage in social soccer and to undertake voluntary teaching of the Ethiopian community, which required him to write on a blackboard. He said that he was limited in his ability to cook, clean and vacuum and to undertake lawn mowing and gardening, as activities involving repetitive movement of his shoulder aggravated his condition.

• He had been sacked by the first defendant in April 2009 when he was told that no more light duties were available for him. In seeking alternative employment, the plaintiff had applied to purchase a taxi and had sought funding from the second defendant to be retrained. He said that he applied for a tram driver’s position and for employment with the Department of Justice as a multi-lingual officer (he deposed that he was fluent in five languages; namely, Amharic, Afar, Arabic, Oromo and English). He said that he had been unsuccessful in obtaining any of the positions for which he had applied.

4          In his second affidavit, the plaintiff deposed that:

• He had undergone surgery to his right shoulder, which was undertaken by an orthopaedic surgeon, Mr Pullen, on 1 December 2009. He described continuing to suffer from chronic pain in his right shoulder which was aggravated by sitting for lengthy periods or by activity. He said that he suffered intermittent wrist pain, but that the symptoms in his wrist had improved since he ceased working with the first defendant.

• He was undergoing a rehabilitation program with CRS who had attempted to assist the plaintiff to find employment but with no success. He believed that he would be unable to work as a taxi driver as the prolonged driving and the lifting involved in operating a taxi was beyond him.

5          In his third affidavit, the plaintiff deposed that:

•  He continued to suffer from ongoing symptoms in his right shoulder which were aggravated by activities, particularly those involving reaching and stretching. He described the performance of repetitive activity with his right arm as increasing his symptoms.

•  He had had no success in obtaining employment notwithstanding the fact that he had:

(i)         applied to Yarra Trams to become a ticket inspector;

(ii)        applied to purchase a taxi licence;

(iii)      sought to be trained as an interpreter. However, he failed to gain entry into the interpreter’s course for the reason that he was too slow in interpreting.

6          In his fourth affidavit, the plaintiff deposed:

• That he continued to be unemployed.

• That he had recently obtained a Certificate IV which allowed him to teach English to non-English speaking people and he had applied for a full-time position as a teacher.

• That he presently managed his symptoms by the use of Panadol and Panadeine and the application of Voltaren gel to his shoulder and shoulder blade.

• That he continued to suffer from pain in his shoulder and shoulder blade which was variable and exacerbated by activities such as holding his arm in one position for long periods of time, lifting, placing pressure on his hand and shoulder and lifting weight.

The Plaintiff’s Viva Voce Evidence

7          In cross-examination, the plaintiff said that whilst he had suffered injuries to his neck, shoulders and back in the course of his employment with the first defendant, by 2009 his major problem had been with his right shoulder. He said that he had seen a physiotherapist, Mr Mackenzie, on some twenty occasions following the surgery undertaken by Mr Pullen, but stated that whilst Mr Mackenzie had reported that he was suffering from no pain using his arm in the course of daily activities, this was not the case. He said that he had gained no long-term benefit from the surgery undertaken upon his right shoulder or from the physiotherapy he had undergone.

8          He said that whilst his physiotherapist had suggested that he should change the posture he adopted whilst sitting at his computer desk in an attempt to alleviate the pain which he experienced in his right shoulder, the plaintiff had discontinued that activity, however his pain had not gone away.

9          The plaintiff said that his symptoms limited his ability to drive and that driving for more than between forty-five minutes and an hour aggravated his symptoms. He said that whilst he had not worked as a professional driver since 2007, he had submitted an application to the Taxi Directorate for a taxi plate which would allow him to own a taxi and employ a driver. He agreed that in his application he stated that between 2003 and 2008 he worked regularly as a taxi driver, explaining that whilst those statements were false –

“… this is the system; it has to be like this. To get the licence you have to

put these details as it is.”[1]

[1]             T 35

10        The plaintiff said that:

• he suffered from constant pain in his right shoulder which he presently managed by taking two Panadol tablets each night unless activity-related symptoms required him to take additional Panadeine or Panadol;

• he no longer used a desktop computer but employed his laptop when necessary;

• he made use of his left hand to lift small items, as carrying out this activity with his right hand caused symptoms of pain;

• he was able to manage his own cleaning, cooking and washing.

11        In re-examination, the plaintiff said that he suffered from symptoms of shoulder pain which extended into the right side of his neck; that it was his intention when he applied for a taxi licence to hold the licence and hire a driver; that he believed that he had the capacity to perform the alternate duties he was carrying out for the first defendant at the time of his retrenchment and was upset at being terminated; that with time the condition in his left shoulder had resolved and his symptoms of wrist pain had diminished, such that they were only present with repetitive or forceful movements, but that the pain in his right shoulder had persisted.

The Medical Evidence relied upon by the Plaintiff

12        The plaintiff’s treating general practitioner, Dr M Hagos, in a report dated 29 July 2009, describes the plaintiff, who had been a patient “for a few years”, attending his practice on 12 September 2007 with painful wrists and elbows. Dr Hagos reports that the plaintiff was referred for physiotherapy and for a course of cortisone injections, and commented:

“A while after Mr Turab also complained of a painful right shoulder with stiffness and he found it hard to move around. He was sent to have an ultrasound of the right shoulder which a right supraspinatus partial thickness tear, right subdeltoid subacromial bursitis with bursal impingement on abduction during dynamic scanning. It was suggested that Mr Turab should have a course of cortisone injections for the right shoulder and he was injected as part of his treatment.

Despite having all of these problems Mr Turab wanted to continue doing full time light duties so he was allowed to start full time duty with restrictions.”

(sic)

13        In a second report dated 3 August 2010, Dr Hagos described the plaintiff as continuing to suffer from pain associated with the performance of his full-time light duties, which was not revealed by physiotherapy, such that he was required to undergo an operation on his right shoulder on 1 December 2009. He continued:

“A few months after the operations, Mr Turab was willing to continue with his full-time light duty job, but his workplace was unable to provide him with light duties and now he is out of work.”

14        Dr Hagos opined:

“Based on all the information and incapacity of Mr Turab, in my opinion he is capable of doing full-time light duties and Mr Turab is also willing to do so. It is very hard to know how long the recovery period will be. These things take time.”

15        In a further report dated 18 October 2010, Dr Hagos reported that the plaintiff was still suffering from a right shoulder rotator cuff muscle injury and right wrist tenosynovitis.

16        In his final report dated 8 June 2011, Dr Hagos reported that the plaintiff was still suffering from the following conditions:

“- right shoulder problem;

- right and left elbow problems;

- right and left wrist problems;

- stress and depression.

Based on the stated conclusion, Mr Turab will not be able to resume his pre injury duties in the future.

Mr Turab is still not well this has been confirmed with the latest MRI report of the right shoulder. He will need financial psychological and medical support. He will still need to continue seeing his psychiatrist, orthopaedist, physiotherapist as well as his medical practitioner.”

17        In July 2009, the plaintiff consulted Mr Jonathan Hooper, an orthopaedic surgeon, at the referral of his general practitioner. On examination, Mr Hooper found the plaintiff to present with a painful arc of movement in his right shoulder and tenderness over the lateral epicondyle on the right and the medial epicondyle on the left and both wrists. He described however the plaintiff as presenting with a full range of motion. Mr Hooper injected local anaesthetic and steroid into the plaintiff’s shoulder, commented that the injection only helped the plaintiff temporarily and opined that the plaintiff required treatment in the form of an arthroscopy of the shoulder and the performance of a subacromial decompression.

18        Mr Christopher Pullen, an orthopaedic surgeon, examined the plaintiff at the request of Dr Hagos in April 2009. At that time Mr Pullen:

• described the plaintiff as presenting with a full range of both active and passive movement but with pain when his arm was lifted above shoulder level;

• opined that having regard to the plaintiff’s failure to respond to the conservative treatment which he had undergone, he required treatment in the form of a decompression, plus or minus a SLAP repair.

19        In a further report dated 22 July 2009 prepared for the purpose of this proceeding, Mr Pullen described the plaintiff as suffering from chronic pain in his supraspinatus fossa which was increased with reaching, and commented that the plaintiff:

• suffered from occasional clicking in his right shoulder;

• had tried conservative treatment, including physiotherapy, acupuncture and exercise;

• had undergone two cortisone injections with only brief improvement over a few hours;

• was currently taking Mobic and Panadeine but still had pain.

20        In these circumstances, Mr Pullen reported that he had discussed with the plaintiff the possibility of performing a right shoulder arthroscopy, sub-acromial decompression and biceps tenodesis or SLAP repair as required.

21        In August 2009, the plaintiff consulted Mr Matthew Evans, a shoulder surgeon, seeking a second opinion as to whether he should undergo surgery to his right shoulder. On examination, Mr Evans commented that the plaintiff had a full range of active motion in the right shoulder and no evidence of muscle wasting, that cuff strength testing was normal, but that the plaintiff complained of pain associated with all movement. Mr Evans opined that the plaintiff’s symptoms were consistent with rotator cuff weakness and secondary impingement and supported the need for an arthroscopic evaluation of the shoulder and a subacromial decompression. He concluded his report as follows:

“I have warned Ahmed that I think an operation such as this is likely to improve his day-to-day pain in the shoulder but that even with a successful operation, he is unlikely to be able to return to heavy and repetitive manual labour. I think the most important thing in terms of the ongoing management of Ahmed’s shoulder condition would be vocational retraining.”

22        Mr Pullen further reported as to the plaintiff’s progress in a report dated 11 March 2010. At that time Mr Pullen stated that upon his review of the plaintiff on 7 October 2010, he had been advised by the plaintiff that he would proceed with shoulder surgery and that this decision was made by the plaintiff notwithstanding a warning given to him by Mr Pullen that:

• there was no guarantee of success with the surgery;

• there was a small risk that the plaintiff’s shoulder would be made worse;

• that there was a chance that the surgery would not improve his ongoing symptoms.

23        Mr Pullen reported that, notwithstanding these warnings, the plaintiff was keen to proceed to surgery as he felt he had exhausted all non-operative treatment.

24        Mr Pullen performed a right shoulder arthroscopy and a sub-acromial decompression upon the plaintiff on 1 December 2009 at the Mercy Private Hospital. He said that at operation no evidence of a SLAP tear was seen; that the articular surfaces of the humeral head and the glenoid were observed to be well preserved; that he found no evidence of a rotator cuff tear; but that he found evidence of diffuse bursitis, along with impingement in the sub-acromial space and, accordingly, that a sub-acromial decompression was performed.

25        Mr Pullen reviewed the plaintiff on 16 December 2009, at which time he felt he was progressing well following surgery. When he reviewed the plaintiff on 27 January 2010, Mr Pullen reported that the plaintiff had complained of residual pain following his shoulder surgery, that he had advised the plaintiff to continue with physiotherapy, and he expressed optimism that the plaintiff would achieve a further improvement. Whilst Mr Pullen reported that he expected the plaintiff to be fit to return to light duties following his surgery, he commented:

“It may be that Mr Turab’s shoulder precludes him from doing particularly

heavy manual work into the future.”

26        In a further report dated 17 July 2010, Mr Pullen states that he reviewed the plaintiff on 28 April 2010 at the referral of the plaintiff’s physiotherapist, Mr Chris Mackenzie, who had reported that whilst under his care the plaintiff had achieved a full and pain-free range of motion in his shoulder, such that he was not having problems with pain when performing activities of daily living. The plaintiff had however continued to complain of pain in the right scapular region which had failed to resolve.

27        Upon examining the plaintiff in June 2010, Mr Pullen obtained a history from him that despite his arthroscopy and having undergone physiotherapy for five months, the plaintiff was still suffering from ongoing problems with shoulder pain which he indicated had not improved. Accordingly, Mr Pullen referred the plaintiff for an MRI scan of the shoulder which was reported as revealing the presence of mild subscapularis tendinopathy and mild AC joint capsular hypertrophy and oedema. Mr Pullen opined:

ƒ	that he was dubious as to whether these MRI scan changes could cause ongoing shoulder pain;
ƒ	that he did not believe the plaintiff would benefit from further shoulder surgery;
ƒ	that he thought that the plaintiff might benefit from a sub-acromial cortisone injection and referred him for treatment of that type.

28        Mr Derrick Billett, a consulting orthopaedic surgeon, has examined the plaintiff in June 2009, February 2011 and July 2011. In his first report, Mr Billett opined that the plaintiff presented with bilateral epicondylitis of the elbows and a soft tissue injury to the left shoulder together with the presence of a SLAP lesion. He said that the plaintiff required an arthroscope of the shoulder to treat a partial tear of the supraspinatus tendon which had been diagnosed on ultrasound and that the plaintiff’s condition was not, as at that time, stabilised.

29        In a further report dated 24 February 2011, Mr Billett opined that the plaintiff continued to present with the presence of a SLAP lesion in his right shoulder and that whilst he could undertake light duties, he was fit only to perform work below shoulder level which involved a weight limit of 12 kilograms and avoided repetitive activity.

30        In a further report dated 26 July 2011, Mr Billett commented that whilst Mr Pullen had not detected the presence of a SLAP tear in the course of his surgery, the clinical findings made by Mr Billett were consistent with the presence of a SLAP tear and that he favoured his clinical findings to those of Mr Pullen.

31        Mr Kenneth Brearley, an orthopaedic surgeon, examined the plaintiff on 5 August 2009, at which time he agreed with the opinions expressed by Mr Hooper, Mr Pullen and Mr Billett that the plaintiff required surgery in the form of an arthroscopic sub-acromial decompression and repair of the labral pathology present in his right shoulder.

32        Mr Brearley re-examined the plaintiff on 23 June 2010, at which time he expressed the opinion that notwithstanding undergoing surgery, the plaintiff remained incapable of returning to heavy physical work. Mr Brearley opined that the plaintiff would not in the future be fit to perform manual labour and that he would be restricted to work of a clerical or administrative nature.

33        In a further report dated 27 May 2011, Mr Brearley opined that the plaintiff presented with a full range of movement in the right shoulder but the last 30 degrees of movement caused him pain. He opined that the plaintiff was unfit for strenuous work involving heavy lifting or repetitive activity and that he was fit only for selective lighter type work.

34        In a medical report dated 19 October 2010, Mr Gerald Moran, an orthopaedic surgeon, obtained from the plaintiff a history that he continued to suffer from right shoulder pain which was present most of the time but that he had a full

35        In a report dated 4 August 2010, Mr John O’Brien, an orthopaedic surgeon, described the plaintiff as presenting on physical examination with mild restriction of movement in the right shoulder which was consistent with the presence of some residual rotator cuff tendonopathy. He described that it was likely that the plaintiff’s clinical condition was now stable and that whilst he was to undergo a further injection into the shoulder joint, it was Mr O’Brien’s opinion that his current treatment which related to pain relief was likely to continue. He described the plaintiff as presenting with a moderate disability which rendered him incapable of returning to his pre-injury occupation and precluded him from undertaking employment involving physical manual work. He opined that the plaintiff was, from a physical perspective, capable of undertaking light duties, that the plaintiff remained limited in general, social, domestic and recreational activities and that there was no evidence of the presence of progressive disease in the plaintiff’s shoulder.

The Medical Evidence Relied on by the Defendants

36        In a report dated 20 April 2010, Mr Chris Mackenzie, the plaintiff’s treating physiotherapist,[2] reported to Mr Pullen that the plaintiff had achieved a full and pain-free range of motion of his right shoulder and that he was no longer experiencing any difficulty in his day-to-day activities. Whilst Mr Mackenzie reported that the plaintiff continued to complain of pain in the superior angle of the right scapula whenever he was in a sitting position for more than an hour, he opined that this problem was unlikely to be related to the surgery undertaken by Mr Pullen (a position with which Mr Pullen agreed).[3]

[2]            It was the plaintiff’s evidence that he has consulted Mr Mackenzie on some twenty occasions.

[3]             See Mr Pullen’s comments at PCB 65 which I interpret as being supportive of Mr MacKenzie’s position.

37        Having regard to the fact that the balance of the medical evidence relied upon by the defendants pre-dates the surgery undertaken to the plaintiff’s right shoulder, the bulk of this evidence is of little relevance in the task required of me; namely, to assess the consequences of the plaintiff’s injury at the present time.

38        It is appropriate however to note that Dr Michael Bloom[4] expressed a strong suspicion when he last examined the plaintiff in January 2009 that, whilst the plaintiff presented with clinical signs consistent with rotator cuff tendonopathy and bursitis of the right shoulder, his presentation was pain focused and he displayed evidence of a degree of pain avoidance behaviour.[5]

[4]             An occupational physician who assessed the plaintiff on three occasions between October and January 2009.

[5]             Dr Bloom made it clear however that he did not believe the plaintiff to be deliberately exaggerating his symptoms.

Findings as to the Plaintiff’s Credit

39        In the application, the defendants put the plaintiff’s credit in issue, relying essentially upon what is described as deception on behalf of the plaintiff in providing a false history to the Victorian Taxi Directorate in his application for “taxi plates”[6] and what the defendants assert as being exaggerations in the plaintiff’s curriculum vitae.

[6]             See Exhibit 1.

40        As to the latter issue, I accept the plaintiff’s evidence that his curriculum vitae was a work in progress subject to updating and, accordingly, I am satisfied that little weight should be given to this point.

41        It is clear however that the statements made by the plaintiff to the Victorian Taxi Directorate as to his history of employment within the taxi industry were deliberately false.

42        When I consider this fact in the context of the plaintiff’s difficulty in finding employment which meets the physical restrictions imposed upon him by his shoulder injury, and take into account the following matters which, in my opinion, speak favourably as to the plaintiff’s credit, namely:

(i)	the plaintiff’s history of employment which involved a substantial period of employment with the first defendant during which it appears no criticism was made of the plaintiff as to his motivation or reliability;
(ii)	the plaintiff’s return to light duties and his continued employment until his retrenchment by the first defendant, notwithstanding that he was suffering from a condition which warranted surgery;
(iii)	the plaintiff’s willingness to undergo surgery to his right shoulder, notwithstanding uncertainty as to the prognosis with respect to that surgery;
(iii)	the plaintiff’s readiness to volunteer that the symptoms which were present in his left shoulder and his elbows and wrists have improved;
(iv)	the plaintiff’s continuing attempts to re-establish his earning capacity by seeking alternative employment;
(v)	the plaintiff’s willingness to provide voluntary services to assist his ethnic community which, in my opinion, attests in a positive way to his credit;
(vi)	the failure by the defendants to adduce video surveillance of the plaintiff which was in their possession;

I do not consider there is any merit in the position taken by the defendants that the plaintiff’s credit is tarnished such that I should be reluctant to accept his evidence on the grounds that he was deliberately unreliable in the evidence he gave as to the consequences of his injury upon him.

Findings

43        In deciding the issue which arises in this case; namely, whether the plaintiff’s pain and suffering consequences, when judged by comparison with other cases in the range of possible impairments or losses of a body function may fairly be described as being more than significant or marked and as being at least very considerable, I am required to assess the consequences in terms of pain and suffering which the plaintiff’s injury has occasioned to him and determine where the facts of this case sit in the broad spectrum of cases. Whilst I am guided in my approach to the analysis of the particular circumstances of this case by the statements of the Court of Appeal in both Haden Engineering Pty Ltd V McKinnon[7] and Sutton v Laminex Group Pty Ltd,[8] ultimately I accept that the task which I am required to undertake remains “a value judgment, in which matters of fact and degree, and of impression, are operative”[9] and one in which I am required to take into account – “not only what symptoms there are and what the worker is

[7] [2010] VSCA 69

[8] [2011] VSCA 52

[9]            Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181

precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to some extent, by what

is retained;”[10]

[10]           Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260

I am satisfied that the plaintiff’s right shoulder condition has impacted upon his life in the following ways:

(i)

Firstly, it is such that it has permanently restricted his employment opportunities to work which involves the performance of light physical duties which do not involve forceful or repetitive movements of the right arm and shoulder; and that this restriction is, for the plaintiff, a significant one, in that it has resulted in him losing his employment with the first defendant and to date being unable to secure alternative employment. The plaintiff struck me however as being both articulate and well presenting, and when account of the plaintiff’s computer literacy and the certificate which he has obtained to teach English to non-English speakers, it is clear that the plaintiff possesses employment skills beyond those which equip him to perform the unskilled physical work which he was undertaking with the first defendant. I take these matters into account as ameliorating factors in assessing the consequences of the plaintiff’s injury-related loss of employment upon him;

(ii)

Secondly, it is likely that the plaintiff continues to suffer from discomfort in his shoulder and neck and arm which requires him to manage those symptoms by being cautious and conservative as to the activities he undertakes and to ingest non-prescription analgesia generally only at night.

44        Whilst the plaintiff has given sworn evidence that he experiences pain through the full range of movement of his shoulder, I am not satisfied that the plaintiff experiences major problems with pain other than at the extreme ranges of movement of the shoulder and arm when account is taken of:

• The report of Mr Mackenzie, who stated that the plaintiff had achieved a wide range of pain-free movement in his shoulder;

• The findings of Mr Brearley in June 2010 and May 2011 who on both occasions reported the presence of pain only at the last 30 degrees of the range of movement;

• My own observations of the plaintiff in which he exhibited no reluctance or obvious discomfort in moving his arm whilst gesticulating as he gave his evidence.[11]

[11]           These movements at no stage involved the plaintiff raising his elbow to a height anywhere near his shoulder. The plaintiff exhibited no obvious reluctance however to employ his right arm within the narrow range of movement involved in this activity.

45        In attempting to evaluate the level of the pain which the plaintiff experiences, I take into account the fact that the plaintiff is able to manage his pain by the modest use of non-prescription analgesia and that there is no evidence that the plaintiff’s pain is such that it interferes with his ability to sleep. In these circumstances, I do not consider that the duration or extent of the plaintiff’s level of pain alone could be described as being more than significant or at least very considerable.

46        Whilst I accept that the plaintiff has established that he would be unfit for work as a taxi driver having regard to the obligation which would invariably arise to load luggage in and out of his vehicle, I am not satisfied that the plaintiff has established that the consequences of his injury have been such as to preclude him from driving a vehicle equipped with power steering other than for relatively brief periods of time.[12] In this regard, I do not find the plaintiff’s evidence as to his level of disability to be persuasive when it is considered in light of:

[12]           Between 45 minutes and one hour – T 29

[13]           See the report dated 21 April 2010 – Exhibit 4

[14]           Exhibit 2

• the opinion of Mr Mackenzie[13] to which I have earlier referred, that the plaintiff, as at April 2010, had been rehabilitated such that he had achieved a pain-free range of motion of his right shoulder; and

• the certificate dated 3 May 2010 issued by Dr Hagos which attests to the fact that the plaintiff met the medical criteria required to hold an unconditional driver’s licence for the operation of a commercial vehicle.[14]

47        It follows from these findings that, whilst I accept that the plaintiff is no longer fit for the performance of unrestricted physical work, I do not accept the position of Mr Tobin SC, who appeared on behalf of the plaintiff with Mr N Morrow, that any work which the plaintiff is eventually successful in finding will necessarily aggravate his symptoms or expose him to significant levels of pain.

48        Whilst it is my overall impression of the evidence that the plaintiff’s surgery has achieved a less than perfect result, and that the function of the plaintiff’s shoulder and arm continues to be impaired by the presence of pain in the manner which I have described, when account is taken of:

• the findings I have made as to the plaintiff’s levels of pain;

• the relatively modest impact which the plaintiff’s injury has had upon his ability to manage the tasks associated with day-to-day life;

• the general tenor of the medical evidence which identifies the plaintiff’s capacity for alternate employment and describes the plaintiff’s condition as stabilised, such that there is no likelihood that the plaintiff will develop degenerative changes in the shoulder joint;

I am satisfied that, whilst it is appropriate to describe the plaintiff’s level of impairment as being significant, marked or considerable, I am not satisfied that it is appropriate to describe the plaintiff’s level of incapacity as being more than significant or marked and as being very considerable when considered in the context of the range of other possible impairments.

49        For the reasons set out above, I am not satisfied that the plaintiff is entitled to the leave sought by him in this application and I will hear the parties as to any order for costs which is attendant with the finding which I have made.

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