Wilkes v Virgin Blue Airlines Pty Ltd

[2010] VCC 460

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-09-02661

Deane Wilkes	Plaintiff
v
Virgin Blue Airlines Pty Ltd (ACN 090 670	Defendant
965)

---

JUDGE:	S. Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2010
DATE OF JUDGMENT:	21 May 2010
CASE MAY BE CITED AS:	Wilkes v Virgin Blue Airlines Pty Ltd
MEDIUM NEUTRAL CITATION:	[2011] VCC 0460

REASONS FOR JUDGMENT

---

Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s.134AB

– pain and suffering only – injury to the right shoulder

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr I. Richards SC	Zaparas Lawyers
With Mr S. Jurica
For the Defendant	Mr B. McKenzie	Herbert Geer
HER HONOUR:

1 The plaintiff seeks leave to issue proceedings for the recovery of damages for pain and suffering only in respect of the injury to the right shoulder suffered on 18 March 2003 during the course of his employment with the defendant. The application is made under s.134AB(16)(b) of the Accident Compensation Act 1985. The injury occurred while he was lifting a box of butchers paper weighing approximately 20 to 40 kgs. He suddenly dropped one end, jerking his right shoulder and felt severe pain and a burning and tearing feeling in the shoulder. He sought medical treatment and worked in a sling for a month. He had physiotherapy and in 2005 had a cortisone injection which gave him temporary relief. He had arthroscopic surgery on the right shoulder in June 2007, but still suffers ongoing pain, which interrupts his sleep and affects his ability to do housework, play sport with his children, jog and play competitive cricket, which he did at a high level until early this year. He takes Voltaren 50 mg tablets a few times a week. He is not having physiotherapy or any active medical treatment. He says that he has suffered a serious long-term impairment to the function of the right shoulder.

2          The defendant agrees that he suffered an injury to the right shoulder in the incident in the form of a labral tear of the right shoulder necessitating arthroscopy, bursectomy and a Superior labral tear from anterior to posterior (SLAP) repair and that in spite of surgery has been left with a permanent impairment of the function of the right shoulder. However, the defendant says that the pain and suffering consequences of this impairment, even if found to be significant, are not more than significant and at least very considerable when judged by comparison with other cases in the range of possible impairments or losses of function of the right shoulder. The defendant relies on a number of matters: the plaintiff managed to play first grade cricket until early this year, is working long hours full-time in a business in which he is a partner, doing similar work to that which he did for the defendant, and is able to drive six to eight hours per day for his work. Moreover, he stopped having physiotherapy in October 2009 even though he is able to pay for the treatment himself, and has seen his doctor roughly once a year in the past three years. His doctors says he requires no further treatment. Finally, he takes little medication and if the Voltaren does not agree with him could take Panadol but does not.

Plaintiff’s evidence

3          In his first affidavit,[1] the plaintiff, who is right-handed, stated[2] that he has in constant pain in his right shoulder which worsens when he extends his arm away from his body, and there is some catching feeling if he raises his arm above his head or puts his arm behind his back. He cannot lift more than 5 kgs above waist height with his right arm. He feels a pulling sensation if he lets the right arm hang free, and finds it more comfortable if his arm is supported while sitting or driving. He will open tight door handles with his left hand. He is woken up “at least once nearly every night”[3] by pain, and can also be woken if he rolls onto his right shoulder. He does not raise his right arm above his head when dressing. He supports his right arm when typing. He used to do basic home maintenance but now cannot do tasks which require him to raise his right arm above head height.

[1]             The affidavit was sworn on 10 February 2009.

[2]             At paragraphs 13-26.

[3]             At paragraph 18.

4          The plaintiff stated that he played first grade cricket as an all-rounder and was club champion from 1989 to 1993 and captain coach from 1993 to 1997 and in 2002. After his injury he continued to coach the seconds and thirds. He said[4] that he planned to captain/coach the club for a few more years but could not because of his injury. He returned to play cricket in the seconds with restrictions in January 2008. As at early 2009, he was continuing to play, but his batting was restricted and he had to throw underarm when fielding in the slips. When chasing a ball in the out field, other players had to run with him to throw the ball in. He found this “embarrassing and annoying” but did not want to give up cricket.

[4]             At paragraph 22.

5          He played social tennis weekly before his injury but can no longer do so. He is restricted in lifting his young son and in playing sport with him. He was taking anti-inflammatory medication approximately once a week, especially during times of physical activity, but found it caused him gastric upset.

6          In his further affidavit,[5] he stated that he had physiotherapy until October 2009 but only got temporary relief from it. He stated that he was seeing Dr Miletich about every three months and was prescribed Voltaren he takes “once or twice a week when I have increased pain in the right shoulder”.[6] He declined the offer of a further cortisone injection in mid-2009. He stated that he had an injury to the left collarbone from a collision in basketball in 1999 which caused some right shoulder pain for a few weeks requiring physiotherapy but which then resolved and did not bother him again until the incident at work. He stated that he suffers from constant, often severe pain in the right shoulder, which has worsened over time. He stated that he continued playing cricket after his injury in the seconds and thirds despite his pain because it meant so much to him, but stopped playing in December 2009 because of his right shoulder pain. He had hoped to play club cricket into his 50’s. If he rolls onto his right shoulder, which can happen a few times a night, he is woken by pain and can find it difficult to get back to sleep. On occasions, he can be “severely sleep deprived the next morning”.[7]

[5]             Sworn 14 May 2010.

[6]             At paragraph 3.

[7]             At paragraph 13.

7          He has put on weight since his surgery. He favours his left arm whenever possible, particularly when carrying samples of blinds, and now his left shoulder aches. He tries to limit the use of Voltaren because he used it too much when he was playing cricket.

8          In cross-examination, the plaintiff agreed that his role in the blinds business is in sales and that he works long days (often 10 to 12 hours per day), six days per week. He drives for about 6 to 8 hours on week days. He supervises a sales team of six and enjoys the work. He said that he manages his condition by doing some shoulder exercises for five minutes two to three times per week. He agreed that Dr Miletich’s records disclosed that he had seen him in July 2007 and then again in March 2009. He agreed that the last prescription for 20 tablets of Voltaren had been given to him by Dr Miletich in March 2009. He said he had seen him again once since then. He disagreed with the proposition that the complaints made to Mr Jones, Mr Flanc and Mr Hunt did not include a complaint of constant pain but rather pain with activity. He insisted that his shoulder pain was constant. However, he only takes Voltaren occasionally during the week. He said he can no longer carry the lawn mower up the terraces in his garden, nor carry the vacuum cleaner up the stairs at home. He said he sometimes wakes up every night, and later said he gets woken at least once a night with pain. He agreed that he last played tennis in 2000 and last played golf twelve months ago. He agreed that he kept playing cricket every season after his injury until resigning from his club two weeks ago. He agreed that he played first grade cricket in the past three seasons. He said he resigned because he did not want to feel obliged to take to the field in the lower ranks or to play as a hack. He said that he used to take Voltaren before playing. He said that because of his shoulder injury he cannot use his right arm above his head to play sport with his children.

Medical reports

9          The plaintiff’s treating general practitioner, Dr Miletich, who has treated him since 2003 in relation to the right shoulder injury, reported in early 2009[8] that he had not seen him since July 2007, but noted that the surgeon, Mr Pullen had discharged him in October 2007 with the recommendation that he return to his usual activities, including sport, at his physiotherapist’s discretion. Dr Miletich wrote that it was likely he would have “some pain and discomfort of the shoulder at times” and his injury and surgery may lead in future to earlier degenerative changes compared with the other shoulder.

[8]             Plaintiff’s Court Book (PCB) pages 35-36.

10        Mr Pullen reported[9] that when he last saw the plaintiff in October 2007 he was progressing well and had made a good recovery. Mr Pullen felt the prognosis was very good and he expected that the plaintiff would suffer no residual disability from his shoulder injury. He felt that the plaintiff could gradually return to his normal activities, including cricket. He discharged him from his care.

[9]             PCB pages 37-43.

11        The treating physiotherapist Mr McPherson, who treated the plaintiff from July 2003 to 2007, and then from February to October 2009, when payments for this treatment ceased, reported in early 2009[10] that the plaintiff had ongoing right shoulder problems including chronic right shoulder pain, reduced shoulder mobility, some impingement and poor rotator cuff function. He felt his prognosis was guarded. He did not mention the plaintiff’s cricket activities.

[10]           PCB pages 45-46.

12        Mr Justin Hunt, orthopaedic surgeon, provided a medico-legal report on 19 April 2010[11] in which he noted the complaint of ongoing pain and loss of function of the right shoulder, interruption of sleep if he lies on his right shoulder. He has had to use his left arm for many activities where previously he would have used his right arm. He felt that no further treatment was warranted but felt that ”the structures in the right shoulder are not normal” and the prognosis was for ongoing pain and loss of shoulder function, which would continue to have a serious impact on a daily basis, particularly with overhead activities and lifting. He noted that the 1999 shoulder injury appeared to involve some right shoulder capsulitis with night time throbbing and low grade pain during the day, and concluded it was possible that he had a labral tear before 2003 which was aggravated by the incident on 18 March 2003.

[11]           PCB pages 67-72.

13        Mr Flanc reported in April 2010[12] that the plaintiff complained of pain over the outer part of the right shoulder with some limitation of upward movement, and that he “occasionally wakes with pain if he lied on the right shoulder and notices that the shoulder ‘clicks a lot on movement’”. He also complained that picking up his young son causes right shoulder pain and that he had to drive with his right elbow supported to avoid shoulder ache. He noted that he avoided any work above his head and no longer mows the lawn or weeds the garden. He no longer jogs because if the right arm swings he feels a painful click in the right shoulder. He told Mr Flanc that his “capacity for work is satisfactory”, although he sometimes has a shoulder ache or painful clicking when lifting or carrying a bag of sample blinds. Mr Flanc diagnosed a tear of the labrum, a tear or aggravation of a tear of the rotator cuff and a subacromial bursitis. Mr Flanc concluded that the pain and limitation of movement had a significant impact on his domestic activities and cricket, and a “fairly mild impact on his work activities”,[13] affecting his ability to carry and lift bundles of sample blinds, although he should avoid heavy lifting above his head. He noted that the plaintiff is attending a masseur.

[12]           PCB pages 60-66.

[13]           PCB page 58.

14        On 10 May 2010, Mr Flanc noted[14] the history given to Dr Baquie in December 1999 of two years of being unable to throw a cricket ball because of posterior shoulder pain which became severe in recent weeks such that he was unable to bowl. Mr Flanc felt that throwing the cricket ball “may have predisposed him to an injury to the glenoid labrum, the cartilaginous rim attached to the scapula which forms the socket of the shoulder joint”. However, Mr Flanc noted that the history suggested that his symptoms resolved and he was able to continue playing cricket from 1999 onwards.

[14]           PCB pages 66.1-66.4.

15        Mr Flanc was unsure whether the plaintiff sustained an injury to the rotator cuff and subacromial bursa at the time of the incident on 18 March 2003, but felt it was possible that he already had some tearing of the glenoid labrum in 1999 which was significantly aggravated by the incident on 18 March 2003.

16        Dr Andrew Miller, occupational health consultant, reported on 11 November 2005[15] that the plaintiff had a right shoulder injury in around 1997, caused by playing football or cricket, for which he attended physiotherapy and had a cortisone injection. Dr Miller concluded that the incident resulted in a soft tissue strain of the shoulder but did not feel that the plaintiff’s employment materially related to his current injury for a number of reasons: he had sufficient time and treatment to recover from the injury; he had a pre-existing injury to the right shoulder; he continued to play competitive cricket which “is a more likely cause of any ongoing symptoms in his right shoulder”. He felt that no further surgery was needed and he could manage his condition with exercises and analgesic/anti-inflammatory medication.

[15]           Defendant’s Court Book (DCB) pages 6-9.

17        Mr Ian Jones reported on 10 December 2009[16] that the plaintiff complained of right shoulder clicking, and of pain on lifting his right arm above his shoulder or behind his back and pain on playing cricket which required anti- inflammatory medication. He felt that the problem was likely to persist and he could not rule out a re-tear of the labral repair performed by Mr Pullen. He felt it was possible that a minor labral tear occurred in 1999 given that he resumed cricket but with a reduced bowling rate. Mr Jones felt that the incident in March 2003 only contributed to a minor extent to the permanent impairment of the right shoulder. He noted that the plaintiff was still playing cricket and that this activity could cause or aggravate a labral tear.

Legal principles

[16]           DCB pages 15-20.

18 I turn briefly to the legal principles applicable in this case. In order to make out a serious injury within paragraph (a) of the definition in s.134AB(37) of the Act, the plaintiff must establish that he has suffered a permanent serious impairment or loss of a body function and that the consequences to him in terms of pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable.[17] The court must consider the impairment of body function suffered by the particular applicant, but the test also requires an objective comparison between the impairment suffered by the applicant and the range of possible impairments.[18] On the authorities, decisions as to whether an injury is serious involve elements of fact, degree and value judgment.[19] A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[20] The proper analysis involves establishing that the plaintiff suffered compensable injury after 20 October 1999, establishing what that injury was, determining the consequences which the plaintiff alleges have resulted and determining that those consequences were materially contributed to by the compensable injury and finally, determining whether those consequences meet the very considerable level in terms of pain and suffering.[21]

[17] See sub-section 38(c) of s.134AB of the Act.

[18]           Vladimir Sabo v George Weston Foods [2009] VSCA 242 at [66]; Maro Stijepic v One Force Group Aust Pty Ltd and VWA [2009] VSCA 181 per Ashley J at [42].

[19]           Fleming v Hutchinson (1991) 66 ALJR 211.

[20]           Grech v Orica Australia Pty Ltd [2006] VSCA 172 at [58].

[21] Ibid at [80].

19        Some weight must be given, in considering whether the pain and suffering consequences of the plaintiff’s impairment are “at least very considerable” to the adverb “very”.[22] Each case needs to be determined in light of its own facts.[23]

[22]           TAC v Dennis, [1998] 1 VR 702 at 703 per Callinan J.

[23]           Stijepic v. One Force Group Australia Pty Ltd & Anor [2009] VSCA 181.

20        In determining the application, the whole of the evidence is to be considered and a successful return to work by a stoic worker is not determinative against a worker on the issue of pain and suffering.[24] What matters is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her]’.[25]

[24]           Dwyer v. Calco Timbers (No.2) [2008] VSCA 60; Stijepic v. One Force Group Australia Pty Ltd & Anor [2009] VSCA 181.

[25]           Dwyer v. Calco Timbers (No.2) [2008] VSCA 60 at [25].

21        In relation to the experience of pain, the Court must assess the intensity and frequency of pain in the light of the plaintiff’s evidence in court and to doctors as to what he says and does about the pain; the doctors’ evidence about the extent and intensity of the plaintiff’s pain; and the objective evidence about the disabling effect of the pain.[26]

[26]           Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at [11].

22        Apart from capacity for work, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s sleep; mobility; capacity for self-care; performance of household and family duties; recreational activities; social activities; sexual life; and enjoyment of life.[27]

[27] Ibid at [16].

23        Overall, the Court must consider what the plaintiff has lost by virtue of the injury and what has been retained. The significance of what he has lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.[28]

[28]           Dwyer v. Calco Timbers (No.2) [2008] VSCA 60 at [27].

24        I am entitled to take into account that the plaintiff is 38 years old and that, compared with other persons with shoulder impairments, he will experience these pain and suffering consequences for a longer period of time.[29]

Findings and reasons

[29]           Stijepic v One Force Group Aust Pty Ltd and VWA [2009] VSCA 181 per Ashley J at [44].

25        I found the plaintiff to be a straightforward witness who gave precise evidence without any embellishment. I accept his evidence as to the restrictions of movement of the right shoulder, and the impact of these restrictions on his ability to do any activities which require reaching overhead with the right arm, including some home maintenance activities, some sporting activities with his children and in particular, playing cricket. I accept that he has a constant ache in the right shoulder, that he is disturbed by pain at night if he rolls on it, and that sometimes he is sleep deprived as a result.

26        On the other hand, I note that the histories given to treating and examining doctors suggest that the pain is felt on physical activity, particularly playing cricket. I also note that since his injury he has worked full-time and played cricket at a high level for another seven years, ceasing only early this year. He has been able to continue working in his chosen occupation, without substantial interference from his shoulder condition. The plaintiff relied in his submissions on the approach taken by Maxwell J in Haden Engineering Pty Ltd v McKinnon.[30] However, in McKinnon, the plaintiff’s pain interfered with his work each day, requiring him to take frequent rest breaks. In addition, his pain woke him three to five times per night and he was taking 4-6 Panadol and Panadeine Forte each day to control his pain. That is not the case here. While the plaintiff used to take Voltaren in a high dose before playing cricket, and now takes it occasionally during the week, there is no evidence of pain requiring the ingestion of other medication, whether prescription or over the counter. On the contrary, his evidence was that since moving across to the blinds business he has been working six days a week and driving six to eight hours per day during the week, which he manages by keeping his right elbow supported. In addition, he attends his children’s sporting activities, and engages in a range of recreational activities with his family, albeit with some restrictions on what he does with his right arm. He has chosen not to continue with physiotherapy and maintains himself by doing right shoulder exercises for a few minutes two or three times per week and supporting his right arm while driving and using the computer. He sees his doctor only once a year or so in relation to the right shoulder and has not had a prescription for Voltaren since March 2009. He does not take other analgesic medication even though this was recommended by Dr Miller in 2005. It is clear that the decision to stop playing cricket has been a difficult one for him, and that it has caused him considerable loss of enjoyment. I accept that the ongoing pain and restrictions of movement resulting from the right shoulder injury in spite of surgery have had a considerable impact on the plaintiff’s enjoyment of life, particularly in relation to ongoing pain, being disturbed by pain at night or when lifting, and being unable to play cricket, as well as limiting the sport he can play with his children and the domestic and maintenance activities he can undertake.

[30] [2010] VSCA 69.

27        In all the circumstances, however, I am not satisfied that the pain and suffering consequences of his impairment are fairly described as being more than significant or marked and as being at least very considerable when compared with other cases in the range of possible impairments or losses of a body function.

28        It follows that the plaintiff’s application is dismissed. I reserve the question of costs.