Uili v Staff Australia Payroll Services Pty Ltd
[2014] VCC 713
•27 May 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-00680
| SAUTOAI UILI | Plaintiff |
| v | |
| STAFF AUSTRALIA PAYROLL SERVICES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 April 2014 | |
DATE OF JUDGMENT: | 27 May 2014 | |
CASE MAY BE CITED AS: | Uili v Staff Australia Payroll Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 713 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Accident Compensation Act 1985 – serious injury – right shoulder injury sustained in specific incident by 35 year old female storesperson – right shoulder injury – pain and suffering consequences – range case – plaintiff’s credit
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Leave granted in respect of pain and suffering
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A E Hill | Slater & Gordon |
| For the Defendant | Ms M Tsikaris | Lander & Rogers |
HIS HONOUR:
Introduction
1 This is an application for leave pursuant to the provisions of s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for leave to commence a proceeding for common law damages limited to pain and suffering only in respect of a right shoulder injury sustained by the plaintiff in February 2008. The plaintiff is right-hand dominant and the body function relied upon to satisfy the definition of “serious injury” is the right shoulder.
2 At the time of sustaining her injury, Mrs Uili was employed as a casual storesperson by the defendant who, as a labour hire company, had placed the plaintiff at the Woolworths Distribution Centre in Mulgrave. The occurrence of injury and, indeed, the extent of medical treatment, is not in dispute in this proceeding. At the time the application was heard before me, the plaintiff had returned to employment undertaking casual work of up to 24 hours per fortnight in residential youth care.
3 The plaintiff is married and her husband suffers from cardiomyopathy. There are six children whose ages range from one year to 20 years of age. Two children, Lola and Kevin, were born after the plaintiff had suffered her injury. All the children reside at home with the plaintiff and her husband.
4 The defendant made no challenge to the occurrence of injury and the necessity of the initial treatment received by the plaintiff. The challenge to the plaintiff’s application is based upon credit issues which underpin the true extent of the consequences alleged to result from the plaintiff’s right shoulder injury.
The evidence
5 The plaintiff was the only witness called to give viva voce evidence. She had sworn affidavits in support of her application on 11 September 2012 and 24 March 2014.[1] The other evidence received in this application was in the form of medical reports on behalf of the plaintiff, which were tendered as Exhibit A, surveillance video of the plaintiff taken on 28 and 29 March 2014, tendered as Exhibit 1 and, finally, medical reports and other material from the defendant’s court book tendered as Exhibit 2.
[1]Exhibit A, pages 34-45.
6 It is appropriate to set out in summary form the matters deposed to in the plaintiff’s two affidavits before referring to evidence adduced in cross-examination. I noted, in particular:
· The plaintiff completed secondary school and performed generally unskilled work, including office work and receptionist work, and at least one position as a storesperson in New Zealand before moving to Australia in December 2004.
· The plaintiff’s only position pre-injury in Australia was at the Woolworths Distribution Centre in Mulgrave albeit that she was employed by a number of labour hire agencies before being employed by the defendant from September 2007.
· On 24 February 2008, the plaintiff suffered an injury to her right arm when a pallet transporter being driven by her jerked, causing some strain on her body.
· Following initial medical assessment she was referred to Mr Douglas Li, who performed decompression surgery on 6 May 2008.
· Her progress appears to have been complicated by post-operative adhesive capsulitis requiring further invasive treatment, including a hydrodilatation and manipulation under general anaesthetic.
· Following some physiotherapy, the plaintiff returned to light duties working in the defendant’s office for limited hours three days per week. She suffered considerable right shoulder pain and ceased work in June 2009.
· The plaintiff did not work until late 2011, when she obtained some casual work as a residential care worker, essentially undertaking cooking, cleaning and home upkeep. Initially, the plaintiff could only continue with this employment for two to three months because of increased right shoulder pain. She did, for a brief period, increase her hours to eight hours a day, four days a week.
· The plaintiff has had no further surgery and very limited ongoing treatment. At the date of the application she deposed to taking, on average, four to six Panadol per day and occasional Nurofen “when the pain is bad”.
· After the brief period of employment in late 2011, the plaintiff did not return to any employment until late 2013, when she returned to residential care work which she now does between 20 and 24 hours per fortnight. She describes the work as preparing meals, light jobs and paperwork, supervising the clients and driving young clients to and from various appointments.
· The plaintiff continues to suffer ongoing pain and restriction of movement in the right shoulder. She has a family of six children between one and 20 years of age, all residing with her, and a husband who suffers from an ongoing health problem. One of the children suffers from autism.
· The plaintiff referred to a number of pre-injury sporting and recreational activities, including swimming, softball, women’s tag (rugby), light kickboxing, cricket and volleyball. She referred to her attempts to return to various activities post-injury.
· Finally, the plaintiff deposed to an inability to return to any form of physical work such as storesperson or picker and packer. She believed the ongoing pain and limitation of movement in her right shoulder precluded her from doing repetitive physical tasks such as pushing, pulling and lifting with her dominant right arm.
7 In cross-examination, the following matters were noted. In particular:
· Following her injury in 2008, the plaintiff had given birth to a daughter, Lola (born 9 August 2010), and a son, Kevin (born 5 October 2012).[2]
[2]Transcript (“T”) 17, Line (“L”) 10-13.
· The plaintiff’s husband was diagnosed with cardiomyopathy in 2011.[3]
[3]T18, L30-31.
· Between 2010 and her husband’s diagnosis in 2011, the plaintiff assisted her husband by doing paperwork in a security business conducted by them.[4]
[4]T19, L15-22.
· The plaintiff obtained a children’s rugby coaching certificate in 2009 and coached an under 14 team but not her son’s team.[5]
[5]T21, L12-22.
· In New Zealand, as well as warehousing work, the plaintiff had done some office work.
· After giving birth to her children, the plaintiff had taken time off work.[6]
[6]T29, L11-12.
· Following the injury in 2008, the residential care work was casual but had involved work of up to 32 hours per week.[7] That work involved transporting residents, some preparation of meals including chopping vegetables, washing, cleaning, paperwork and computer usage and was currently between 20 and 24 hours per fortnight, dependent on shifts.[8]
[7]T31, L5-19.
[8]T32, L4-15.
· Three of the plaintiff’s older children, the twelve year old, fourteen year old and twenty year old, still played rugby for the South East Titans and the plaintiff took them to games.[9]
[9]T33, L10-14.
· The plaintiff last had active medical treatment with Mr Li in November 2009 and currently took Panadol and Nurofen medication, four to six tablets a day if she had to.[10]
[10]T34, L24 - T35, L19.
· The medication was not taken every day but taken when needed. When more closely questioned, the plaintiff responded that it was not every day but most days.[11]
[11]T36, L13-31.
· In relation to histories concerning medication use given to various examiners, the plaintiff maintained that when she had stated she was not having treatment, she was referring to prescribed medications.[12]
[12]T40, L25 - T45, L16.
· The plaintiff confirmed she had played women’s tag, three games in 2013, but not rugby.[13]
[13]T45, L18 - 27.
· The plaintiff confirmed she had played softball as a designated runner. She denied playing as a hitter or in the outfield (but agreed she had hit in the past).[14]
[14]T47, L5 - 14.
· The plaintiff denied having right shoulder problems after a tackle playing rugby in July 2006 and maintained she had previous right shoulder pain at work.[15]
· She agreed that the shoulder complaints in 2006 were in the same area as the shoulder complaints in February 2008.[16]
[15]T48, L15 - T49, L8.
[16]T51, L17 – 22.
Surveillance video taken on 28 and 29 March 2014
8 The surveillance video on 28 March showed a short passage of the plaintiff carrying what appeared to be a box of bakery goods in her right hand whilst opening her car door with the left hand. I made no observation of any use of the right arm at or above shoulder height or otherwise inconsistent with how the plaintiff had described the consequences of her injury. The second passage of video on 29 March showed the plaintiff at the Sweeney Reserve in Narre Warren wearing a Cranbourne Softball Club uniform. The surveillance observations at Sweeney Reserve commenced at 10.10am and continued until 1.27pm. I observed the plaintiff on three occasions lift her three year old daughter but on each occasion she did so with her right elbow held close to her side lifting only to just above waist level. Towards the end of the surveillance video the plaintiff’s husband picked up the young child from the plaintiff and lifted her higher to place her within the SUV vehicle that was driven by the plaintiff.
9 I observed other persons using softball bats and balls on that morning but the plaintiff was only observed to be talking to other persons, looking after her young children and not performing any activity which was inconsistent with the use of her right arm as described in the affidavits and in evidence.
10 The plaintiff was further cross-examined after the surveillance video was shown. She agreed that she had undertaken the activities recorded on the video with very slight variations. When further cross-examined about medical treatment, she agreed that she had undergone a hydrodilatation procedure in 2009 and thereafter used a personal trainer and attempted boxing as part of the rehabilitation process. She denied doing push ups. She confirmed that her husband’s illness and lethargy prevented him from doing a lot of things around the house in recent times.
11 The plaintiff was re-examined and asked about breastfeeding her six children. She confirmed that she had breastfed the older four children for periods between 1 ½ and 2 ½ years, whereas with the two younger ones, the period was three months and a few days for her youngest child.[17] This was said to be related to difficulties with her right shoulder. She was further re-examined about the level of activity performed by her and stated that the cultural role of women in Samoan society was “I've been brought up that the woman do everything.”[18]
[17]T69, L5-9.
[18]T70, L9-12.
12 The medical evidence was not contentious in this case. The treating surgeon, Mr Douglas Li, in a report to the defendant’s insurer dated 22 September 2008, Mr Li commented as follows:
“The ultrasound (11 March 2008)[19] reported a full thickness tear of the supraspinatus tendon with adjacent calcific tendonitis … On 6 May 2008 I performed right shoulder arthroscopathy … followed by arthroscopic subacromial decompression including acromioplasty and subacromial bursectomy following mini open rotator cuff repair … On 9 September 2008 I reviewed Mrs Uili. At four months following her right shoulder surgery she developed a post-operative adhesive capsulitis … Despite physiotherapy she was stiff and as such I recommended hydrodilatation to hopefully break down the adhesions and stretch out the capsule and allow her further range of motion … “[20]
[19]Exhibit A, page 46.
[20]Exhibit A, page 48-50.
13 Mr Li reported to the plaintiff’s solicitors on 25 January 2011. He confirmed at that stage his most recent attendance on the plaintiff was on 11 November 2009 at which time he regarded her progress as satisfactory stating:
“She had no pain except after repetitive work, which was frequent at her employment … I encouraged her to continue with the exercises to further strength her shoulder girdle musculature. I recommend she avoid repetitive work with her right arm forever.”[21]
[21]Exhibit A, page 56.
14 The plaintiff obtained a recent medico‑legal opinion from Associate Professor Love dated 5 March 2014. Mr Love expressed the following opinion:
“This woman has a chronic rotator cuff tendonitis of the right shoulder and her prognosis is such that there is unlikely to be any meaningful change in the condition in the foreseeable future. I cannot conceive any surgical endeavour which may have a high probability of success in altering her symptoms.”
He further stated:
“Her ongoing treatment needs to be largely conservative, including therapy aiming at retaining and possibly restoring motion in the right shoulder along with analgesic medications for pain relief.”[22]
[22]Exhibit A, pages 59 – 61.
15 The defendant’s most recent surgical opinion was that obtained from Mr Grossbard, orthopaedic surgeon, dated 13 February 2012.[23] Mr Grossbard has performed an AMA impairment assessment which is not particularly relevant to the task facing me. However, he did comment:
“This lady has had an injury to her rotator cuff which has required surgical repair and has been complicated by the development of capsulitis. The worker continues to suffer the effects of the injury, which I believe is unlikely to change significantly in the foreseeable future and therefore an assessment of impairment is appropriate. This lady is unlikely to return to a job where she is required to repeatedly use her arm, particularly for heavy lifting or working at or above shoulder height.”[24]
[23]Exhibit A, pages 63 – 68.
[24]Exhibit A, page 65.
Analysis
16 I believe there was little conflict in the medical assessments of the plaintiff in that the opinions of both Mr Grossbard and Associate Professor Love essentially mirrored the opinion of the treating surgeon, Mr Li. I find that the plaintiff has undergone reasonable and necessary surgical treatment for a damaged rotator cuff which occurred in compensable circumstances. The medical evidence satisfies me that the limitations in the use of the plaintiff’s right arm are likely to continue into the foreseeable future and in accordance with the authority in Barwon Spinners Pty Ltd & Ors Podolak[25] the test of permanency required by the legislation is satisfied.
[25](2005) 14 VR 622.
17 The real issue in this case is the extent to which the consequences of the accepted injury impact upon the plaintiff’s life. In this regard it is essential to make a finding of the plaintiff’s reliability and credibility as a witness. My assessment of the surveillance video is central to this examination. I noted several admissions made by the plaintiff as to her post injury engagement in sporting activities which may be seen as inconsistent with a person suffering even a significant or moderate level of restriction in their dominant arm. Had the surveillance video taken shortly before the hearing demonstrated the plaintiff actively participating in soft ball, either by throwing a ball or swinging a bat using her right arm, I would have been disinclined to accept the plaintiff as a reliable witness as to the extent of pain and restriction of movement that she in fact suffers.
18 To my observation, the surveillance video demonstrated the opposite. It showed the plaintiff removing her three year old daughter from her SUV vehicle in a manner that I observed showed her right elbow held into her body and movements being restricted to use of the arm below shoulder level. The plaintiff used a similar method when picking up the child on two further occasions and, as I have already mentioned, her husband in fact lifted the child higher to place her in the vehicle when the activity was completed in the early afternoon.
19 The surveillance at Sweeney Reserve occurred over a 3 ½ hour period. Many other persons were observed throwing soft balls and swinging bats. The plaintiff did not. From this I am able to conclude that as a matter of probability the plaintiff can be regarded as a truthful and reliable witness.
20 The next step to be undertaken is an evaluation of the qualitative impact of the plaintiff’s ongoing pain and restriction of movement on her day to day activities. In making an assessment, I believe the following matters are highly relevant to the plaintiff’s circumstances for the foreseeable future:
·The plaintiff is the primary carer for a family of six children and a husband who suffers from cardiomyopathy. Whilst it is likely that the elder children will become less dependent in the foreseeable future, the fact that the plaintiff has three quite young children, including a child suffering from autism, and the likely permanent condition affecting her husband, suggests that her levels of domestic responsibility will remain at a high level on a permanent basis.
·I accept that the plaintiff takes medication for the ongoing pain in her right shoulder on most days which indicates that Ms Uili’s domestic circumstances necessitate a level of domestic activity which produces pain requiring medication on a very regular basis.
·The plaintiff is a relatively young woman, currently aged forty and the likelihood is that this condition will persist without significant change for many years into the future. There is no evidence of any other injury or illness which would impact upon her future enjoyment of life or life expectancy.
·The cultural background of the plaintiff succinctly described in her evidence is one that ordinarily places a high level of domestic responsibility upon her. This coupled with her husband’s illness reinforces her position as the person primarily responsible for most domestic activity.
·The medical evidence is consistent with the plaintiff being restricted in her movement and usage of her dominant right arm, especially for heavy activities or activities above shoulder height.
·The plaintiff had engaged in a wide variety of sporting activities and continues to participate to the extent that her injuries permit in the post-accident period. Given the involvement of her children in activities such as basketball, rugby and soft ball, and the plaintiff’s activity in those sports together with volleyball and gym, in the pre-accident period, suggests that the restriction of use of her dominant right arm impacts upon her to a greater extent than it would in a person who was not so inclined towards sporting activities.
21 The consequences of the plaintiff’s injury medically preclude her from heavier employment options in the future. It would appear that her current employment in residential care is of a type that she is able to cope with, albeit with some pain and ongoing restrictions in her dominant arm. The loss of opportunity to pursue work in areas such as a store person must have recognition as impacting upon her enjoyment of life.
22 It was put to me in argument that the interference with the plaintiff’s ability to breastfeed her two younger children in the post-injury period should be given weight in this application. Whilst this matter undoubtedly caused a degree of distress to the plaintiff, it is not a loss that could properly be regarded as a long term or permanent consequence of her injury. There was no evidence before me to suggest that the plaintiff would have further children into the future.
23 Ms Tsikaris, who appeared for the defendant, cross-examined the plaintiff about her employment and level of educational qualifications obtained in New Zealand before coming to Australia. I accept that the plaintiff had completed Year 12 education and had commenced studies leading towards an Arts Degree, albeit for a short period. I also accept that she had done administrative and clerical work for some time early in her employment. Nevertheless, the majority of her employment in Australia has been involved in stores work which mirrored the work she had performed in the latter years of her employment in New Zealand. Whilst the plaintiff may have some aptitude for certain administrative forms of work, I cannot accept that an injury to her dominant right arm restricting her permanently from performing work as a store person or some similar occupation is not an important loss of opportunity for her.
24 Given the manner in which the plaintiff has returned to a form of employment and continued to participate to the extent she can with her family’s sporting and recreational activities, suggests that she is a plaintiff who can properly be regarded as stoical. Her aversion to ongoing prescription medication is consistent with such an assessment but to my mind does not diminish the reality of the pain and restriction of function of the right arm that are suffered by the plaintiff. In keeping with the authority in Haden Engineering Pty Ltd v McKinnon:[26]
“The respondent’s stoicism cannot hide the fact that pain is a major component in the respondent’s life.”
These words are apposite in my view as a description of Ms Uili’s circumstances.
[26](2010) 31 VR 1 at [47] per Buchanan JA.
25 Mr Hill, on behalf of Ms Uili, stressed the effect on the plaintiff’s sleep as a relevant matter to be considered in making a qualitative assessment of the consequences of injury upon the plaintiff. I accept on the evidence that the interference with sleep was certainly very significant to the plaintiff at or about the time she was undergoing surgery and post-surgical rehabilitation in 2008 and 2009 but I am less inclined to regard it as a major issue for her today. In any event, the plaintiff conceded in cross-examination by Ms Tsikaris that the months following the birth of the two youngest children in the post-operative period would in any event have affected the plaintiff’s ability to enjoy a restful night’s sleep. Whilst the ongoing level of pain in the right shoulder would undoubtedly have some effect on the plaintiff’s ability to sleep, I do not regard it as a major factor in coming to my decision in this case.
Conclusion
26 Taking into account the very active and busy lifestyle the plaintiff had enjoyed in the pre-injury period and the fact that she is the person principally responsible for domestic activity and the organisation of her large family’s life, I regard the consequences of her dominant right shoulder injury as fairly being described as at least very considerable to her.
27 I propose to grant leave to the plaintiff to bring proceedings for the recovery of damages for pain and suffering in respect of her right shoulder injury suffered in the course of her employment with the defendant on or about 24 February 2008.
28 I will hear counsel in respect to formal orders and the question of costs.
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