Watapaldeniya v Transport Accident Commission
[2021] VCC 714
•7 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-04923
| NIMESH WATAPALDENIYA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 and 19 April 2021 | |
DATE OF JUDGMENT: | 7 June 2021 | |
CASE MAY BE CITED AS: | Watapaldeniya v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 714 | |
REASONS FOR JUDGMENT
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Subject:TRANPORT ACCIDENT
Catchwords: Serious injury – transport accident – right shoulder – loss of earning capacity – pain and suffering
Legislation Cited: Transport Accident Act 1986
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie [2000] VSCA 50
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Stanley with Mr O Lesage | Patrick Robinson & Co |
| For the Defendant | Mr A Moulds QC with Mr A Coote | Solicitor to the Transport Accident Commission |
HER HONOUR:
1The plaintiff makes an application pursuant to s93 of the Transport Accident Act 1986 (“the Act”) for a serious injury certificate.
2The plaintiff relies on two affidavits, sworn 15 July 2020 and 2 March 2021. The second affidavit was filed, at least in part, to address the fact that the plaintiff owns and operates a business which had not been disclosed in his earlier affidavit and came to light shortly prior to the date originally listed for the hearing of this application, resulting in the adjournment of the application. I will deal in more detail with this affidavit in due course.
3The principles that apply to this application are well-known and are not in dispute. The plaintiff alleges he has suffered a serious “long-term impairment or long-term loss of a body function” within the meaning of s93 of the Act by way of injury to his right shoulder and this has caused him to suffer a loss of earning capacity.
Background
4The plaintiff was born in Sri Lanka in March 1989 and came to Melbourne in 2012 to study a bachelor’s degree in Information and Communication Technology at Swinburne University. His student visa allowed him to work up to 20 hours a week. Prior to his injury, he worked at Coles in Malvern stacking shelves, and at a Caltex service station in Frankston.
5He finished his degree in 2016 and had to undertake some further hours of work to get his qualification. He describes himself at this time as happy, in good health and in a relationship.
6In September 2016, the plaintiff advertised his mobile phone for sale on the website Gumtree. A purchaser contacted him and an arrangement was made for the purchaser to attend the plaintiff’s home in Box Hill to see the phone. On 25 September 2016, the purchaser came to the plaintiff’s home and was sitting in his car outside the plaintiff’s home with the engine running. The plaintiff came out to the car and, as asked, performed a “factory reset” of the phone. The purchaser’s female companion then took the phone and jumped in the car and the couple drove away.
7The plaintiff ran alongside the car and managed to get in the open passenger door, on top of the female companion. There ensued a dangerous journey for the plaintiff which ultimately resulted in a collision. The driver and his companion assaulted the plaintiff and tried to push him out of the car. The car was driving at high speeds, up to 100km per hour in a 60km-zone. The driver hit a car at the intersection of Whitehorse Road and Station Street. He drove the wrong way up the parking ramp at Box Hill Central Shopping Centre and collided with another car. He turned around and headed south down Station Street. He ran a red light at the intersection of Station Street and Canterbury Road where he collided at high speed with a large SUV. The car then came to a stop.
8The plaintiff describes the collision as being “like everything exploded”. The airbags were deployed, the car spun around and he could smell fuel. He eventually managed to exit the car and fell onto the road, unable to move. The driver moved toward the plaintiff with a fire extinguisher and he thought he was going to be assaulted, but some bystanders came to his aid and the driver and his companion fled the scene.
9The plaintiff was taken by ambulance to Box Hill Hospital and from there to The Alfred hospital for further investigation of his head injury.
10On admission he was diagnosed with a comminuted depressed fracture to the right frontal bone with involvement of the right frontal sinus. There was a subgaleal haematoma overlying the right superior orbital margin and right frontal bone. This injury was reviewed by the neurosurgery unit and the faciomaxillary unit and conservative management was recommended. The medical view was this was likely caused by the assault rather than the car accident.
11He also had a small comminuted mildly displaced fracture of the right anterior humeral head. Conservative management was recommended. He had pain in his neck and right shoulder, facial lacerations and was extremely upset, anxious and teary.
12He was discharged on 26 September 2016. He had a follow up orthopaedic review on 3 October 2016. X-ray showed satisfactory alignment of the right humeral head. He had faciomaxillary review on 14 October 2016 which showed no visual disturbance, no loss of visual acuity, no numbness or pain and no deformity of the facial bones. At further review on 31 October 2016 no neurovascular abnormality was shown. His shoulder was stiff and he was referred for physiotherapy. Further review on 12 December 2016 showed progressive union of the humeral fracture.
13It is the impairment to his dominant right upper limb that is the subject of this claim.
14There is no dispute about the history to this point. The dispute in this case is whether the consequences of the accident, when compared to a range of possible impairments or losses, can be fairly described as at least “very considerable” and certainly more than “significant” or “marked”.[1]
[1] Humphries & Anor v Poljak [1992] 2 VR 129 at 140
The Plaintiff’s work history
15After the accident the plaintiff had a period of time off work.
16He says that he had been offered a permanent 40 hour per week position as a night-fill manager at Coles, to commence once his permanent residency visa was processed. However, the accident has caused great uncertainty to his permanent residency application.
17He says that, after the accident, he knew he would “struggle” to work 40 hours a week, even if he could have obtained permanent residency.
18He had arranged to commence a course with Navitas Professional in October 2016, but due to his injuries had to defer it to 2017. He commenced his professional year in May 2017 with the Australian Computer Society, and completed that in May 2018.
19In 2017 he also started his own business, Done & Dusted, providing building cleaning services, mostly under subcontract from a business called Comclean. I will deal with this in greater detail later.
20After completing his professional year with the Australian Computer Society in May 2018, he commenced a diploma in leadership management at Cambridge College. He continued to work at Coles as a shelf stacker and run his business.
21In August 2019, before he had completed his leadership management at Cambridge College, he moved to Tasmania. He believed that living in a regional area would be advantageous to his permanent residency application. He commenced a diploma of business course in Tasmania at the Australian School of Commerce. He obtained work at Coles in Sorell, working again as a shelf stacker. He continues that employment to date, working around 26 hours per week. He said in oral evidence that although the visa restrictions confining him to working no more than 20 hours per week have been lifted due to the COVID-19 pandemic, he is unable to work more than 26 hours because of his pain, and in fact turns down additional hours when offered.
22He continues to operate his business.
The Plaintiff’s injuries
23There is no real dispute about the plaintiff’s physical injuries. He suffered a comminuted fracture of the right humeral head which went on to achieve good union. He has persistent restriction of flexion, abduction and rotation of the right shoulder with persistent local tenderness proximal to the humeral head. There is some rotator cuff and bicep tendinopathy, subacromial bursitis and impingement. He has ongoing lifting, pushing and pulling restrictions for the right shoulder below waist height and overhead. Treatment options are limited and offer no guarantee of improvement in function or pain. The defendant’s expert orthopaedic surgeon, Dr Menz, agreed that his prognosis was guarded and that he has ongoing and significant right shoulder problems and low back pain. The plaintiff’s consultant orthopaedic surgeon, Mr John O’Brien, opines that the plaintiff is unlikely to respond to active treatment, and has chronic shoulder pain with a poor prognosis, mild disability and some restriction of dominant right shoulder movement.
24The plaintiff had a follow up with The Alfred Hospital and physiotherapy until January 2017. He had an ultrasound of the right shoulder in February 2018 which showed distal right supraspinatus tendinosis and long head biceps tenosynovitis without focal tear, and a right subdeltoid-subacromial bursitis with bursal impingement on abduction. Steroid injection was suggested as being of possible therapeutic benefit but this was not proceeded with.
25In February 2019, the plaintiff had an MRI scan of the right shoulder which showed no significant joint effusion, no significant rotator cuff pathology or evidence of tear, and no significant bursitis. It did show a probable paralabral cyst of the inferior glenoid. There is no evidence that this is related to his injury. His general practitioner, Dr Weerasekera, provided a report dated 7 November 2019 which notes that he has ongoing shoulder pain.
26The plaintiff has had psychiatric sequalae arising from the traumatic circumstances of the accident, and was diagnosed with Post-Traumatic Stress Disorder (“PTSD”) and a Major Depressive Disorder. This diagnosis is not pursued as an impairment, therefore the relevant psychiatric impairment is only secondary to the effects of his physical injury. Dr Ash Takyar, psychiatrist, says about 40 per cent of his psychiatric injury can be attributed to secondary effects of the physical injury, however I note that Dr Takyar’s report is from November 2018 and the weight I give it is consequently lessened. Dr Nigel Strauss, psychiatrist, diagnosed mild to moderate anxiety and depression in May 2020, and noted some residual symptoms of PTSD and a Chronic Adjustment Disorder with a guarded prognosis. He does not specify what, if any, of the psychiatric symptoms are attributed to the plaintiff’s pain condition arising from the shoulder injury. Dr Peter Doherty, psychiatrist, diagnosed an Adjustment Disorder with Depressed Mood in June 2020 but considers the plaintiff’s psychiatric condition is not pain-related.
27The plaintiff says in his first affidavit he was so distressed by the accident that he really changed as a person in the weeks, months and years following, and he kept feeling “sad and traumatised”. This is understandable, as the circumstances of the accident were particularly traumatising, however, this does not appear to arise as a result of his physical injury or secondary to his pain.
28He says he found it exhausting to study and it was difficult to concentrate because of shoulder pain and traumatic thoughts. He says his sleep is interrupted by pain, nightmares or bad thoughts about the accident. As at the time of his first affidavit, he was still having nightmares about the accident which disturbed his sleep, as well as terrible memories during the day.
29In his first affidavit, he says he gets shoulder pain “every few days”. He says it flares up and he gets sharp pains whilst sleeping. He massages his shoulder to try to relieve the pain and takes Advil and Panadol three or four times a week. Later in that affidavit, he says he tries to remain strong but “the daily shoulder pain, and the flashbacks and memories of this accident, will, I believe, last for the rest of my life”.
30In his second affidavit, the plaintiff says he continues to suffer terrible pain, his shoulder continues to ache and the pain can be excruciating. He describes it as a piercing pain that runs below his shoulder blade and into his armpit, which worsens when he uses his right arm or has to lift it above shoulder height. He says at the end of each work shift his right shoulder throbs. He says he struggles to get a good night’s sleep and is regularly woken by pain if he turns in his sleep. He wakes up feeling tired. He says he uses Voltaren cream on his shoulder and takes Panadol at night to help him sleep but is reluctant to dose himself on pain medication as he already feels groggy from the lack of sleep. He says he copes with the pain as best he can.
31In cross-examination, the plaintiff said his use of medication had increased since his hours of work increased. However it is not at all clear that his hours of work have increased. In fact his hours of work in Tasmania seem to have decreased from the hours he was working after the accident in 2017 and 2018. He said the pain “comes up at work and doing physical work”. He says that on flexion of his arm the pain “gets more excruciating if I go more, but it’s still there on that level as well”. He was questioned as to whether the pain was really excruciating, given that he works stacking shelves. He said in response that he gets sharp pains in his shoulder and tries to balance the weight of items he lifts on his left side. He was questioned as to why he had never sought anything stronger than Advil or Panadol for pain, if indeed the pain was excruciating as he alleged. He said he also used Voltaren.
32He gave a history to Dr Menz, who examined him for the defendant, that his shoulder pain was a seven or eight out of ten “on all occasions”. The plaintiff confirmed in oral examination this was his evidence.
33It was put to him that, despite his pain, he was able to drive his car as much as he wanted. He said in oral evidence that driving caused pain but he “might just fight through the pain and drive”. He said he also cannot drive like he used to, using just his right hand, but has to switch hands now. In his second affidavit he said just driving the car causes him pain. However in his first affidavit he says he can drive his car but it is “difficult and stressful” because he tends to be reminded of the accident and gets angry and confused when driving. There is no mention of any pain when driving in this affidavit. He also says in that affidavit that he avoids driving wherever possible.
Impact of the injuries on the Plaintiff’s life
34The plaintiff gave evidence that he used to play badminton every week and sometimes more often. He said he played competition badminton and was very good, particularly at “smashing” which is what he was known for. He says because of his shoulder pain he cannot do that anymore and is unable to play badminton now. He also played cricket socially, both outdoor and indoor cricket, and is unable to do that anymore.
35He says the impacts of the accident have been far reaching. His relationship with his girlfriend broke up when he moved to Tasmania. He says he has no friends and is very lonely.
36I have no difficulty accepting that the accident has indeed had a significant impact on the plaintiff’s life. I accept that he can no longer play badminton or cricket, certainly to the level he could play prior to his injury. The other impacts of the accident are less relevant to the matters that I must consider, except to the extent that they can be attributed to his right shoulder injury. The shoulder injury was not responsible for the plaintiff’s move to Tasmania, the consequent break up with his girlfriend and the loneliness he now feels. That move was occasioned by the plaintiff’s desire to improve his prospects of obtaining permanent residency.
The Plaintiff’s Credit
Done & Dusted
37Although the plaintiff swore his first affidavit in July 2020, some years after he started Done & Dusted, he did not mention its existence in that affidavit. According to his affidavit of 2 March 2021, he employs five friends to clean offices in Hawthorn, East Burwood and Hobart. Each worker does three hours per day and he takes $2 per hour for each. He does the bookkeeping but says the “business essentially takes care of itself” and runs at a loss but he keeps it going as a means to improve his prospects of getting permanent residency.
38The plaintiff’s affidavit evidence about the demands of Done & Dusted was significantly different to his evidence under cross examination. He was asked why he mentioned it only for the first time the day before his application was due to be heard. He said “because I thought, like, I thought I’d better mention it because I’m still doing it here, because I was going to stop it in Melbourne and I brought it in Tasmania, I thought it was a best option to mention it as well”. This is an unsatisfactory answer as to why it was not mentioned in his 2020 affidavit when he moved to Tasmania in 2019 and continued the business at that time.
39In his affidavit he says the business essentially runs itself, but in cross examination he says he incurs quite significant vehicle and travel expenses in relation to the business because he has to go and do site visits, liaise with clients and check on his contractors. This involves a drive from Sorrell to Hobart which is about one hour and ten minutes away. He says the cleaners he employs work at night and then, depending on the convenience of the client, he will drive to those sites to inspect their work the following morning or evening, speak with the clients and deal with any problems that have arisen. He can manage this supervision and driving around two and a half hours to and from Hobart three to four times a week because his shifts at Coles are in the evening.
40He employs two contractors in Tasmania. One cleans an office building in Central Hobart five days a week, and one cleans another site about ten minutes further out of Hobart in Dave Street five days a week. The cleaner who cleans Dave Street also cleans another site twice a week which is another ten minutes further away from Hobart, towards Newtown. He has a further cleaning contract that involves cleaning toilets in various building sites around Tasmania but is not required to visit those building sites. He says he attends in Hobart, Dave Street or the site near Newtown around three or four times a week. This evidence was somewhat difficult to extract from the plaintiff and I formed the view that he was not being entirely forthcoming about the operations of the business and its demands on his time.
41On the plaintiff’s evidence, just the driving for Done & Dusted takes between seven and a half to ten hours a week. In addition there must be some administration involved with the business, including payroll and other accounting. He pays vehicle and travel expenses for one of his contractors in Melbourne as well as the cleaner who cleans the building sites that he does not visit. Whilst he does not have to visit the sites in Melbourne, presumably there is still a requirement to deal with any problems or complaints that arise and liaise with his contractors. In short, the plaintiff’s affidavit significantly underplayed the demands of running Done & Dusted. I conclude that the plaintiff sought to minimise the demands of the business to justify the fact that its existence was entirely absent from his affidavit of July 2020. It was put to the plaintiff that he had only disclosed the existence of Done & Dusted in his March 2021 affidavit because he became aware that the defendant had done a business name search and learned of the plaintiff’s business. The plaintiff denied this suggestion and said that what had prompted him to swear his affidavit on 2 March 2021 was that he “just want to mention that that’s out there as well because that’s actually associated with my name as well so I thought I best mention that as well”. He justified its exclusion because he was not doing the physical work, by which I take it he means the actual cleaning work, and because it was running at a loss, and that he is only continuing it for immigration purposes. I find this explanation unsatisfactory and not credible.
42The records disclose that in the 2017 financial year, Done & Dusted Cleaning Services brought in just under $12,000 in income but incurred nearly $20,000 in expenses, making a loss of $7,735. $9,110 of that loss was for vehicle expenses. The following year, 2018, the business brought in income of around $86,000 but after expenses made a loss of $6,659. Again a substantial portion of that loss was depreciation of the vehicle, in the amount of $8,462, and motor vehicle expenses in the amount of $3,901. In 2019 the business again makes a loss, in the amount of $9,108. $3,998 is for depreciation of the motor vehicle and $1,650 is for vehicle expenses. In 2020 the business brought in income of $70,901 but again made a loss of $9,325, with $19,688 claimed for vehicle depreciation on a new car, a Holden Calais, and $3,564 in vehicle expenses.
43The plaintiff gave evidence that he purchased the Holden Calais in the first half of 2020 for around $13,000. Notwithstanding that price, he said there were additional costs with finance so that the driveaway price was higher and could justify a claim for depreciation of an amount in excess of $17,000. It was put to him that, although his income from Coles was modest, he was able to finance a loan for between $15,000 and $20,000 to purchase the new Holden Calais, because he knew that his cleaning business was bringing in enough money that he would be able to pay for the car through the business. In response to this suggestion, the plaintiff said “not really” and that he bought the new car because he hit a kangaroo with the other car. Whilst that may be correct, it does not provide an answer as to how the plaintiff could afford the new car, other than through the income he received from his business. But for the depreciation claimed for the car, the business would have earned a profit of around $10,000. As counsel for the defendant put it, this is not “cattle stations” but it is certainly something to be considered in the context of the plaintiff’s claim about his loss of earning capacity.
44The plaintiff was vague about the purchase and sale of his cars. He said he purchased the Holden Calais in 2020 and when asked whether it was early in 2020 he said “something like that”. He was unable to recall exactly when he had purchased the Volkswagen Passat which replaced the Holden, which only occurred a matter of months ago. He thought it was around December 2020 or January 2021 but could not be more precise, nor could he recall what price he paid for it other than it was $13,000 or $12,000.
45Whilst nothing important turns on the value of the car or the month of purchase, the plaintiff’s lack of candour added to an impression that he was being evasive. Given the significant role that the cars play in the accounts of Done & Dusted, and that expenses associated with the motor vehicles resulted in most years in the business operating at a loss rather than a profit, I formed the impression that the plaintiff was being evasive about the true state of affairs in relation to his business. I was not persuaded by his explanation as to why he had not included it in his first affidavit, and do not accept that, on the eve of the original hearing date, he suddenly thought, unprompted, that he should mention it.
46Rather, I consider that he made a decision not to include it in his first affidavit and most likely did not disclose it to his solicitors, as he did not think that disclosing it would help in this application. It is improbable that, if he had informed his solicitors of his business, they would not have advised him to include it in his affidavit material.
Period of time off work and working hours
47It is not contentious that the plaintiff had a period of time off work after the accident. However, what that period of time was varies significantly in the plaintiff’s different accounts. In his first affidavit, he says he was off work for almost seven months, and when he returned to work, he was only working 15 hours a week when, if he had not been injured, he would have been working 40 hours a week. In the history he gave to Dr Takyar he says he was off work for 11 months. In the history he gave to Dr Strauss, he was off work for around nine months. He gave a history to Mr O’Brien that he was unable to return to his pre-injury work for “some 12 months”. He told Dr Doherty that he was off work for eight months.
48In cross examination the plaintiff was taken to a document signed by Clifton Hill Physiotherapy which stated that he had capacity for pre-injury employment from 22 January 2017. The plaintiff accepted that after 22 January 2017 the Transport Accident Commission stopped paying him and he returned to work. I find that the period the plaintiff was off work due to his shoulder injury was approximately four months.
49The plaintiff says that, though he did go to work, he was not up to full capacity, he was having pain with his shoulder and was struggling to work. While this may well be so, it does not account for the different history he gave to the multiple experts. According to his evidence he is still not up to full capacity, so it makes little sense that his instructions to the experts reflected his time off until he returned to “full work capacity”. It is more likely that the plaintiff exaggerated the period of time he had off work in an attempt to bolster his case.
50In his first affidavit the plaintiff said that after the accident he was only working 15 hours a week when, if he had not been injured, he could have worked 40 hours. He does not correct this evidence in his second affidavit. It was put to him that between January 2017 and early 2019 there was no evidence that he worked reduced hours as a result of his shoulder injury. His evidence in cross examination was that, during this period, he was working “no more than 30 hours a week”. This would account for the increase in his taxable income from $25,140 in the 2016 financial year, to $34,427 in the 2017 financial year . In 2017 he earned $29,153 from his work at Coles, which includes the four month period when he was unable to work between 25 September 2016 and 22 January 2017. This means that in the eight months he was able to work at Coles he earned more than in the 12 months he worked there the previous year, which would indicate that he was indeed working more hours a week.
51He said in cross examination that he was working around 30 hours a week at Coles over five shifts, usually working nights as the pay rate was better. However he also said the shifts he worked were 10pm to 6am which would mean his working week was in fact 40 hours.
52He had a significant increase in salary from Coles in the 2018 financial year, when he earned $58,560 compared with $29,153 in 2017, albeit that the 2017 reflected the four month period he was off work due to the accident. During this year he was also continuously studying. He says his higher earnings in 2018 can be, in part, accounted for by the higher hourly rate he earned doing nightshift. It is not possible on the evidence before me to be certain what hours the plaintiff worked. Doing the best I can based on the plaintiff’s evidence and the documents tendered, I am satisfied that the plaintiff was working somewhere around 30 hours a week, as well as undertaking his professional study year. This represents an increase from his pre-accident hours when he was working 20 hours per week and is certainly significantly more than the 15 hours he said he was working in his first affidavit. Again I find that his evidence in his first affidavit, and failure to correct that evidence in his second affidavit, indicates that the plaintiff has not been honest with the Court about his ability to work but rather sought to minimise his working hours to bolster his claim.
Complaints to Doctors and degree of pain
53The plaintiff said that, when it came to his shoulder pain, he “couldn’t afford to take time off from work because, if I did, I can’t pay my Uni fees”. However he did take time off work for hay fever and coughs and colds. The plaintiff agreed that he would take time off work occasionally for things other than his shoulder injury, and attended his doctor to get a medical certificate for hay fever or coughs and colds.
54He says his main focus was to “earn my Uni fees because I tried to catch up on bills and everything, I was trying to work through my pain and tried to earn money because I can’t be a burden to my parents”. He said he was suffering badly from hay fever and that was why he attended his doctor.
55He said when he had hay fever he would have body aches and would be unable to do physical work as he could not get out of bed.
56He accepted there were no recorded complaints to his general practitioner about his shoulder in the period from the beginning of January 2017 to the end of 2018, but said “if I recall I had mentioned it a couple of times” and was told to take Panadol. He conceded he had not attended a doctor in this period solely or primarily because of shoulder pain. It seems unlikely that there would be no mention at all of shoulder pain if he had reported it as a problem of any substance. Whilst there is an ultrasound report of February 2018, it is unclear what prompted this investigation. The plaintiff gave no evidence about it. On balance I am not satisfied that he made any such complaints to his treating medical practitioners in that period.
57Similarly, the plaintiff’s evidence about the level and degree of pain he was in was inconsistent, even within his first affidavit. It appears that, in that first affidavit, the plaintiff was less focused on the consequences of his shoulder pain and more concerned with the admittedly traumatic nature of the accident and its sequalae. His evidence was that he had shoulder pain “every few days” and would take Panadol and Advil three to four times a week. However at the end of that affidavit he refers to “daily” shoulder pain.
58In his second affidavit he says that the pain “can be excruciating”. His shoulder continues to ache and is worse on exertion.
59At best the plaintiff’s evidence about his pain is inconsistent. His oral evidence that the pain comes on when working or doing anything physical does not tally with his instructions to Dr Menz that his pain is seven or eight out of ten “on all occasions”, a statement that he affirmed in oral evidence. I accept that the plaintiff is in pain, that his pain worsens with work and on exertion, and that it limits his activities and has a significant impact on his day to day life. Based on the inconsistencies and my impression of the plaintiff in cross examination, I do not accept that the pain is seven or eight out of ten at all times. I consider that this is an exaggeration and that, if this were his level of pain, he would be unable to work in his occupation as a shelf stacker, would be seeking medical treatment in relation to that pain and would require significantly stronger medication than Panadol and Advil. I think it is more likely that his pain on occasion amounts to seven or eight out of ten.
Pain on driving
60The plaintiff’s evidence detailed above about his pain and difficulty driving is inconsistent with the evidence he gave in cross examination about driving trips and holidays he has undertaken since being in Tasmania, including a weekend trip to Launceston and Devonport and day trips to Gordon Dam and Bicheno. Whilst some of these trips have been with friends and the driving has been shared, it does not bespeak of a person who is in excruciating pain when driving, or someone who avoids it wherever possible. He also drives somewhere between seven and a half to ten hours a week for his Done & Dusted work, and travels 30 minutes each way between his home and Coles, five days a week – a further five hours of driving a week. Whilst I accept that public transport may be such as to require him to drive, if driving was as painful and difficult as he suggests, it seems unlikely that he would undertake additional driving on holidays and weekends.
61This evidence, together with the plaintiff’s inconsistent evidence about the period of time that he was off work, his complaints of pain and his evidence in relation to Done & Dusted, gave me the impression that he was selective in what he chose to disclose to the Court.
Findings
62I do not consider that any of the inconsistencies in the plaintiff’s affidavit and oral evidence suggest that the plaintiff has no injury, or is not in pain. There is no dispute that the plaintiff suffered injuries arising from the accident, and these injuries will continue to have an impact on his life.
63Counsel for the plaintiff says there has been no real challenge to the medico-legal expert evidence on behalf of the plaintiff, and that evidence provides little room for the plaintiff supposedly exaggerating his symptoms. There is an organic basis for his complaints, his condition is chronic and, as a young man, he will bear the consequences of that injury for life.
64The question for me is whether, considering the whole of the evidence, the plaintiff has demonstrated that the consequences of the accident are “very considerable” in respect of either pain and suffering, or economic loss, or both.
65The inconsistencies in the evidence and the view I have formed that the plaintiff has been selective in what he discloses to the Court in an attempt to bolster his case, means that I have to examine carefully his assertions in relation to his ongoing pain and the consequences it has had for him. I am mindful in making this assessment that I must consider only the consequences arising from his shoulder injury and any psychiatric sequalae that results from that injury and his pain,[2] and exclude the consequences of his injury that arise as a result of depression, anxiety and PTSD stemming from the traumatic circumstances of the accident, the end of his relationship, his loneliness occasioned by his move to Tasmania, and any other matters.
[2] Richards v Wylie [2000] VSCA 50
66I accept that the plaintiff has pain and restriction of movement. I accept that there is an organic basis for his pain and restriction and that this is permanent and unlikely to be responsive to treatment or improve over time. I accept that this has impacted on his ability to play badminton and cricket, and that from time to time the pain is worse and interferes with his sleep. On occasion the pain may even be excruciating. I accept that living with a level of discomfort may cause a somewhat depressed mood, or a degree of adjustment disorder. However, on the basis of the medical material and the plaintiff’s affidavit evidence, I consider that the preponderance of his psychiatric symptoms are unrelated to his shoulder injury.
67I do not accept that the pain the plaintiff suffers from his shoulder is as severe as he says, or that it could be anything like seven or eight out of ten at all times, given his ability to continue to work in an occupation that requires continuous use of his right arm and shoulder. Nor do I accept that the consequences as a result of this injury for his work and life have been as significant as he says.
68He has, in fact, suffered no actual loss of earnings, and whilst he says that he has suffered a loss of earning capacity, there is nothing in the way of supporting material to corroborate this evidence. After the accident he was working around 30 hours a week, running his own business and studying full time. This was an increase from his pre-accident activities, working 20 hours a week and studying fulltime. It seems doubtful he could have worked any more hours after the accident, regardless of his visa conditions or his injury.
69His current working hours at Coles, combined with the work he does for Done & Dusted including significant hours driving to and from Hobart, would amount to something close to full time employment. There is no supportive evidence that he has declined additional hours at Coles. It is the plaintiff’s burden to establish his loss of earning capacity arising from the injury. He has failed to establish that burden.
70Having regard to the medical and affidavit evidence, as well as the evidence given by the plaintiff during the hearing, I conclude that the plaintiff has had significant consequences that may be described as “marked”, but do not meet the necessary threshold of “at least very considerable”.
71Accordingly, the application is dismissed.
72I will hear the parties on the question of costs.
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