Withington v Transport Accident Commission
[2012] VCC 1854
•29 November 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-03032
| ANDREW WITHINGTON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 and 23 October 2012 | |
DATE OF JUDGMENT: | 29 November 2012 | |
CASE MAY BE CITED AS: | Withington v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1854 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – impairment to the right shoulder
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Richards v Wylie (2000) 1 VR 79; Humphries v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Halpin v Wilson Transformer Company Pty Ltd [2012] VSCA 235; State of Victoria v Glover [1998] VSCA 98.
Judgment: Leave granted to bring proceedings for damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Gorton SC with Ms A Wood | Henry Carus & Associates |
| For the Defendant | Mr M Titshall QC with Ms A Magee | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 25 August 2008 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3
The definition of “serious injury” relied upon by the plaintiff is under
s93(17)(a) – “a serious long term impairment or loss of a body function”. The body function pursuant to subparagraph (a) relied upon by the plaintiff is the right shoulder.
4 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
5 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
6 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: See Humphries v Poljak [1992] 2 VR 129, at 140-1.
7 The plaintiff relied upon one affidavit and gave viva voce evidence. He also relied on an affidavit sworn on 26 September 2012 by his wife, Vicky. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
8 The plaintiff is presently aged forty seven, having been born in Melbourne in March 1965. He completed Year 11 at Williamstown Technical School. Since about the age of eighteen, he has worked in the building and carpentry industry.
9 The plaintiff married in 1987 and has two children. In 2008, he was living and working in Hoppers Crossing.
10 Before the said date, the plaintiff was fit and well. He believes he previously had a cyst removed from his head and also received some chiropractic treatment due to strong headaches but made a full recovery from such episodes.
11 In cross examination, the plaintiff confirmed that over the years, his work as a carpenter involved mainly framework, building walls and installing trusses. He worked under the name of AMW and had a company called AMW Constructions Pty Ltd.
12 In 2006, the plaintiff renovated and extended a rundown, three-bedroom California bungalow in Yarraville. The renovation involved a total strip out, a new bathroom, en-suite, kitchen, big family room and extension.
13 The plaintiff did all the framing work and he had the assistance of other trades, such as plumbing and electrical. The plaintiff did the flooring and the painting. He had some help with lifting the trusses. The job which started in December 2006 was completed ten months later.
14 On the said date, the plaintiff was involved in a transport accident while riding his bike to the gym. While in the gym car park, a motor vehicle drove up the wrong side of the road and collided with the plaintiff’s bike (“the accident”).
15 As a result of the accident, the plaintiff was knocked off his bike and believes he lost consciousness.
16 The plaintiff was taken by ambulance to The Alfred hospital, where he stayed for the day. Whilst there, he had a very bad headache, right shoulder and right elbow pain, and a sore neck. He believes his neck was put in a brace.
17 The plaintiff underwent a number of tests, including an x‑ray of his right elbow and cervical spine at The Alfred. He was allowed to leave the hospital later that day and thereafter sought treatment, primarily from his general practitioner, Dr McGovern, in Hoppers Crossing.
18 The plaintiff attended Dr McGovern on 4 September 2008 for treatment in respect of right shoulder and elbow pain. She organised an x‑ray and referred the plaintiff for physiotherapy treatment, which he then underwent without improvement.
19 On 12 September 2008, the plaintiff completed a Transport Accident Commission form which was submitted to the defendant.
20 In the latter part of 2008, the plaintiff attended upon Dr Hargraves and Dr McGovern at Primary Health in Hoppers Crossing.
21 Dr McGovern gave the plaintiff cortisone injections into his right shoulder on two occasions. Unfortunately, those injections did not provide the plaintiff with any longstanding pain relief or assist with any increased range of movement in his right shoulder.
22 On 29 January 2009, the plaintiff saw Mr Dooley, orthopaedic surgeon, on referral from Dr McGovern.
23 Mr Dooley subsequently arranged for the plaintiff to have a further injection in his right shoulder, following which the plaintiff obtained some relief and also an increased range of motion. However, this relief was only short-lived and in about April 2009, Mr Dooley referred the plaintiff to Mr Bonomo for further opinion as to decompression surgery.
24 An arthroscopic subacromial decompression (“the surgery”) was subsequently carried out by Mr Bonomo, orthopaedic surgeon, at St Vincent’s Private Hospital on 16 June 2009. The plaintiff was an inpatient overnight following the surgery.
25 In cross examination, the plaintiff explained that Mr Bonomo had to do a bit more than he thought he would in the surgery and he reattached parts of the tendon.
26 The plaintiff saw Mr Bonomo once after the surgery, probably about two months later, and did not go back again because he was advised it would be fine to go ahead with rehabilitation in the form of physiotherapy.
27 The plaintiff underwent that treatment involving band exercises for a couple of months. He then joined a gym where the physiotherapist was based and he undertook strengthening programs. The plaintiff thought he attended the gym for about six or seven months under the guidance of a personal trainer.
28 Gym was something the plaintiff had done regularly before the accident and he in fact was going to the gym on the said date.
29 The plaintiff undertook these exercises several times a week for about one to one and a half hours at a time.
30 In cross examination, the plaintiff agreed that he did not go back to Primary Health Care for treatment of his shoulder after the surgery and that his treatment consisted only of physiotherapy.
31 The plaintiff was shown Dr McGovern’s notes of an attendance on 15 October 2010 where she set out the plaintiff had been sent by his solicitor for an x‑ray of his right shoulder. Dr McGovern then noted right shoulder crepitus but full abduction and adduction. Internal rotation was limited to a greater extent than external rotation.
32 The plaintiff could not recall a solicitor sending him off for an x-ray. He did not remember Dr McGovern testing his shoulder movement but would not argue that she did. At the time of that October examination, the plaintiff was building the house in what was his “good period”.
33 The plaintiff agreed he last saw Dr McGovern before this attendance in mid 2010.
34 The plaintiff also agreed he had had a problem with aching feet in early 2010 and was treated by Dr Emmerson at Primary Health. The plaintiff disagreed that problem persisted for some time and he could not remember being referred to Mr Dooley or anyone else for treatment in relation thereto.
35 The plaintiff agreed, as of early 2010, he had taken Voltaren for some time because of his back but he was not taking anything for his feet. His feet might have been x-rayed but foot pain did not persist and it went away shortly after March 2010. The plaintiff no longer takes medication for his back as it is good now.
36 In early 2010, the plaintiff and his wife decided they wanted to move to Torquay. They subsequently sold their house in February 2010 and then lived with the plaintiff’s parents in law for about six months.
37 Transport Accident Commission payments ceased in about April 2010, although the plaintiff thought they continued until the end of 2010.
38 In cross examination, the plaintiff agreed he had a flare up of his shoulder condition in March 2010 when he attempted to go back to work in Hoppers Crossing on a two-day private job. Whilst working on floorboards using a hammer he felt pain and jarring in his right shoulder. The plaintiff could not recall having any treatment following that incident.
39 In late 2010, the plaintiff and his wife moved the family and rented a house near Torquay and also purchased a vacant block of land in Rippleside Drive on which to build a new house in which to live. In cross examination, the plaintiff explained he moved to Torquay for a change of scenery.
40 The work on the new four-bedroom two-storey house commenced in November 2010 under the plaintiff’s wife’s name as the owner-builder. The plaintiff’s family moved to the rented house the following month. The new home was completed in July 2011.
41 The plaintiff was primarily responsible for the building of the family house, but obviously relied on tradesmen and builders to perform the job.
42 While the plaintiff did perform some of the work, he was not able to do any significant work involving reaching above his shoulder. When he tried to do so, he felt immediate pain.
43 In examination in chief, the plaintiff confirmed that his shoulder “absolutely” affected the speed at which he was able to build the family house, in that he worked slowly and he required extra help.
44 A concreter set out the formwork and material for the slab on the family house. The plaintiff received help from other tradesmen, such as plumbers, electricians and plasterers, and also with having the trusses made up. He had help from relatives and friends in other trades who assisted. The plaintiff was involved in putting up the cladding and put in the chipboard flooring with the help of others. A roofer did the roofing.
45 The plaintiff deposed that in about March 2011, he re-injured his right shoulder when working on the family house. Although he cannot recall a specific incident, he can recall he had general soreness after work on one occasion.
46 In cross examination, the plaintiff said he hurt his shoulder in March 2011 lifting some bricks at the Powerhouse when he was cleaning the site. His shoulder just popped and he felt that pop. He had treatment from physiotherapist, Mark Napper, in Jan Juc in April 2011. Mr Napper did massage and needle work and gave the plaintiff some exercises, putting him back on the bands for a few months.
47 The plaintiff agreed, as of August last year, when he saw Mr Napper, there was full shoulder movement but some pain and creaking. He has not seen Mr Napper since November last year. He disagreed that Mr Napper said he did not need to see him again. The plaintiff stopped attending because he could not afford the treatment. This was the situation, although he agreed he was earning about $45,000 a year and his wife was working.
48 In re-examination, the plaintiff confirmed that the aggravations in 2010 and 2011 involved sharp pain, followed by soreness in the same spot that was injured in the accident.
Pain
49 Despite the surgery and subsequent rehabilitation, the plaintiff has continued to experience ongoing right shoulder pain and problems.
50 In the immediate aftermath of the accident, the plaintiff had significant right shoulder pain. Presently, he suffers constant, troublesome pain, weakness and restriction of movement in the right shoulder. He believes he has less power and strength on the right side, particularly in the shoulder region, which he attributes to the injury.
51 Since the accident, the plaintiff has found that with movement, his right shoulder grinds and sometimes he feels it crack. He finds the pain associated with his right shoulder increases with activity, particularly work.
52 The plaintiff has been, and remains anxious, upset and extremely frustrated about the injury. He is frustrated that his disability has remained and he is concerned that the injury will continue to have ongoing consequences in the foreseeable future.
53 As a result of his right shoulder problems, the plaintiff has significant problems with sleeping. He finds that whenever he goes to sleep, he regularly wakes in pain because he is lying on his right shoulder.
54 The plaintiff regularly goes to sleep at about 10.00 pm and wakes at 2.00 am with right shoulder pain. When he wakes up, he finds it extremely difficult to get back to sleep and often gets up and watches television or reads for several hours before returning to sleep.
55 That situation causes the plaintiff to have less sleep than he would like to have and it means that during the day he is often tired and he functions in a less productive manner than he had previously before the accident.
56 In re-examination, the plaintiff confirmed not having enough sleep had an effect on his level of tiredness, “but [he] just got on with it, [he] guessed”.
Sporting Activities
57 Before the accident, the plaintiff’s main hobbies were swimming, bike riding, tennis and cricket. He also enjoyed going to the gym from time to time.
58 Since the accident, the plaintiff has been limited in the amount of swimming he has been able to do and does not play cricket or tennis as regularly as he did before.
59 The plaintiff deposed that the main problem with playing cricket was right shoulder pain when he tries to bowl or throw the ball. He has problems serving when he plays tennis and finds swimming extremely difficult due to the constant right shoulder movement required.
60 In examination in chief, the plaintiff explained that he played cricket with St John’s Cricket Club (“St John’s”) in Williamstown for five years. Since the accident, he had played a handful of games and not played for two years. Since the accident, he has been more or less filling in and does not get any enjoyment from the game at all. In the last two years, he perhaps filled in for four games. Cricket was absolutely important to him “if you looked through [his] things”.
61 In cross examination, the plaintiff agreed, having moved to Torquay, he was not going to travel to Williamstown to play cricket. At Williamstown the plaintiff batted number four in the B grade Western Suburbs Churches’ team. Since the accident, he has probably batted lower in the order at six or seven. He has filled in twice for Torquay.
62 In re-examination, the plaintiff described the success of his cricket team in the years leading up to the accident, having won two premierships. He “absolutely” got enjoyment from playing. In the season following the accident, he was not feeling too well in himself but the team ended up winning. He played ten games that season.
63 The plaintiff felt totally different in terms of personal achievement that season compared to the previous seasons. His batting was not too good because of his shoulder, and the next season he basically gave up playing.
64 If the plaintiff had not hurt himself and had a healthy shoulder when he moved to Torquay, he would be doing everything he did beforehand. He has not continued gym work at Torquay because of the pain from doing his work.
65 In terms of present pastimes, the plaintiff does nothing himself. He just works and rests. He runs after his children, aged fifteen and thirteen. It is “all hard” playing cricket and footy, and other similar activities with his son.
Current Work and the Future
66 The plaintiff deposed that since July 2011, he has continued to work in the carpentry industry in Torquay. He has primarily worked as a subcontractor, but predominantly for one company. In his work, AMW Constructions contracts with the builder and AMW pays the plaintiff.
67 The plaintiff deposed that the principal contractor is aware of his problems and accommodates him by ensuring that its employees assist him and often take over responsibilities which involve heavy lifting or reaching above the shoulder. The plaintiff generally works full time and does find, even without having to reach above his shoulder, the work causes him significant right shoulder pain.
68 The plaintiff remains concerned about the future. Whilst he is currently managing to work, he has significant concerns he will not be able to manage on a full time basis in the future, due to his pain and reduced range of movement.
69 While his current employer is most accommodating in relation to his problems, if the plaintiff was forced to gain subcontract work for another company, he is concerned it would not be as accommodating. Such a development could have significant issues on the plaintiff’s ability to earn income.
70 In cross examination, the plaintiff described that he has worked for two builders, John Walker Master Builder and Voss Builders, since moving to Torquay. The plaintiff met them through the trades he had working on his family house.
71 The Torquay builders use the plaintiff for general carpentry work. At one stage, the plaintiff worked for Voss Builders and John Walker at the same time.
72 The plaintiff has only worked on residential jobs with John Walker. He worked on the framework of a three-bedroom house for John Walker with two others. The plaintiff commenced that job maybe in August or September 2011.
73 The plaintiff did not build the framework. He helped install floor joists and flooring, and did just general building. He did some architraves, skirting boards and put timber screens over windows. He disagreed a good part of the work was overhead, saying that work was not overhead if working on the bottom of a scaffold.
74 The plaintiff started work at 7.30 am and finished at 4.00 pm and worked for John Walker a few times on a Saturday.
75 The plaintiff used a cordless drill on the John Walker property. Some of the work had to be above shoulder height. Part of the architraves could also be done using a ladder, which did not involve over shoulder work.
76 That job has been completed and the plaintiff did not know about any future work for John Walker.
77 The plaintiff has also done residential work for Mr Voss on a two-storey property which the plaintiff worked on from the outset. There are five men working on the site. The plaintiff has been doing mainly inside work, some flooring boards and installing some stair treads.
78 The plaintiff has a ute equipped for work which tows the trailer and carries tools. He uses a cordless nail gun and other tools that he needs, including a circular saw.
79 The plaintiff agreed he attempts to use a hammer everyday and does so while working on the jobs in Torquay. He uses it when needed. As long as he is working below shoulder level, he does not have a problem using screwdrivers, planes and power tools, but he agreed there was some need to for tools to be used over shoulder level.
80 The plaintiff has not done any painting work since the Yarraville job before the accident.
81 In cross examination, the plaintiff agreed the nature of his business had always been if someone was building a house and he could get a contract, so be it, and he would be waiting out for the next job. That situation has been going on for decades and he has never been out of work
82 In re-examination, the plaintiff described how he does not have any confidence in going to a new employer these days, to say, “take me on as a carpenter”. It is only because he knows his current builders that they are sympathetic to his situation and what he can do. He would have to be upfront with potential employers and he would “take it from there” he supposed.
83 The plaintiff’s building work has an effect on the level of shoulder pain, just lifting heavy things, but he pushes through. The pain is worse with working with his hands at shoulder height or above, with the pain straight into his shoulder blade. He is able to avoid completely any work above shoulder height, but cannot always avoid it. He just needs to do it and he has a shoulder brace which he wears to work.
84 The symptoms are just sharp pain. The plaintiff stops what he is doing when he experiences that pain for a while and then starts again.
85 The plaintiff has had four apprentices, the last being in about 2005.
86 In re-examination, the plaintiff said that before he was injured he had ambitions about his son working for him in this role. He thought his son would have liked to have gone on with it. Nothing is happening at the moment; this plan is on hold.
87 The plaintiff broke down in the witness box when this issue was raised.
Recent Treatment
88 The plaintiff continues to take Nurofen, Panadol and Voltaren on an ‘as needs’ basis to relieve his right shoulder pain.
89 In cross examination, the plaintiff confirmed that he takes over-the-counter Panadol nearly every day just for his shoulder. He no longer takes prescription medication.
90 Since moving to Torquay, the plaintiff has attended a general practitioner, Dr Africa, at Torquay Bulk Billing Clinic for treatment of his shoulder.
91 Since his August 2012 affidavit, the plaintiff has had monthly steroid injections from this general practitioner. The injections make his shoulder good for three weeks and then the effect starts to wear off.
Lay Evidence
92 The plaintiff’s wife, Vicky, swore an affidavit on 6 October 2012.
93 Mrs Withington first met the plaintiff in primary school. They started going out at the age of sixteen and have been married for the past twenty five years.
94 Mrs Withington deposed the plaintiff is a fairly shy person who has never been outgoing and is very private and does not like talking about himself very often. He is friendly; however, it takes a while for him to get to know people. He has always been a very high achiever.
95 The plaintiff has always been self employed working in the building industry and started working as a carpenter when he was nineteen.
96 The plaintiff has always been a hardworking man and very good at his job. He is always in demand from other builders who want him to work on their projects. He worked at least forty hours a week before the accident.
97 The plaintiff has always been very fit and healthy and in about 2006, he started going to the gym, which he found helped with his fitness level, and he really muscled up, which helped with his work. He was lifting weights.
98 In addition to going to the gym, the plaintiff played cricket in the summer for a local Williamstown team every Saturday. He played tennis socially, and occasionally the family also played tennis with him. He was an A Grade player when younger.
99 The plaintiff also rode a pushbike to keep fit. He rode nearly every day some weeks and did not drive a car a lot. He always rode his bike to the gym.
100 Mrs Withington basically ran the household, doing the majority of housework, and she also worked full time. The family stayed home a lot together at the weekend and did not go out much. They had a couple of family holidays travelling to New Zealand and to the Gold Coast.
101 Mrs Withington and the plaintiff owned their home in Hoppers Crossing which they had for about fourteen years. They then bought an investment property in Yarraville in about 2006 which the plaintiff renovated for twelve months. During that time, he was not paid but seeking to make a profit on the sale, which did occur in 2008.
102 On the accident date, Mrs Withington could remember receiving a phone call from The Alfred, being told the plaintiff had been knocked off his bike. Further down the track, the plaintiff had to have surgery, after which he told her it was the worst pain he had ever been through in his life.
103 Since the accident, the plaintiff has never fully recovered from his injuries and has been constantly in a high level of pain.
104 The plaintiff was not able to work for about a year after the accident because of the physical demands of his job. When he did go back to work, he worked on their current house. This was good for him because he did not have any time limits or pressure and it helped him to get back to work slowly. He worked under sufferance trying to manage his pain and he took pain relief medication during the day and sleeping tablets at night.
105 Since the accident, the plaintiff has been unable to sleep properly, waking at about 2.00 am, generally with pain in his shoulder that is so bad he cannot sleep through it. The plaintiff often sits up during the night and watches television, hoping it will put him back to sleep. He tries to go to sleep earlier than he used to before the accident but gets a lot less sleep because of pain.
106 The plaintiff had an injection in his shoulder earlier this year to help relieve the pain. He was also seeing a physiotherapist locally and that was really helping his shoulder in terms of movement and pain reduction. However, unfortunately, the defendant stopped paying for the treatment and the plaintiff can no longer afford to attend.
107 The plaintiff basically just tries to put up with the pain and tries to avoid painkillers, saying he has to learn to live with his condition.
108 Mrs Withington feels the plaintiff was basically pushed to go back to work early because the defendant stopped income payments and the plaintiff had no other options.
109 The plaintiff is now working on a full time basis, albeit at a slower pace which she knows is very hard for him. He often tells her his shoulder is sore after work. Their children often massage his shoulder and put Voltaren on it to help him alleviate the pain and discomfort.
110 It is even hard for the plaintiff to do up his nail bag which he wears every working day because the clips are behind his back and he has limited movement in his right shoulder.
111 The plaintiff has tried to play cricket after the accident but he cannot bowl any more. He tries to maintain his life as it was previously but it is difficult and in some respects impossible. For example, he cannot go to the gym at all, cannot serve at tennis – two activities he enjoyed immensely. He is naturally right handed and cannot change to his left hand.
112 The plaintiff occasionally cooks dinner and also tries to maintain the garden, a task he always did before the accident. The garden is now very small compared to the Hoppers Crossing property, which was a third of an acre and does not have a lawn.
113 The plaintiff has a lot of trouble talking about the accident even to her. It took him quite a long time to even tell her that he realised he knew the person who had collided with his bike. He is a very private person and even when he goes to the doctors, he will not communicate very well about his pain. She thinks that he just wants to put the accident behind him and have his old life back.
114 Mrs Withington does not know how long the plaintiff will be able to keep working in his trade. He had planned to work for a long time. Also, their son is fifteen and his dream was to work with the plaintiff as an apprentice. They are hoping the plaintiff will be able to train their son in his trade as he shows promise and this would also help the plaintiff with the heavier tasks of the job.
The Plaintiff’s Medical Evidence
115 The plaintiff was initially under the care of general practitioner, Dr Gillian McGovern, at Primary Health Care in Hoppers Crossing.
116 Dr McGovern referred the plaintiff to Mr Richardson for physiotherapy on 5 September 2008. On 19 December 2008, she referred the plaintiff to orthopaedic surgeon, Mr Dooley, for review. She noted at that stage, the ongoing pain in the plaintiff’s right shoulder had persisted despite NSAID, physiotherapy and a cortisone injection, and that was stopping him from working.
117 Dr McGovern wrote to the defendant on 19 December 2008. She confirmed she had been the plaintiff’s treating practitioner since the accident and not before, and that the plaintiff had seen other doctors at that clinic in the past but not for any related matters.
118 Dr McGovern first saw the plaintiff on 4 September 2008 when he told her he had been hit by a car riding his bike on the said date. He had landed on his right shoulder and head, with loss of consciousness and transient right arm numbness.
119 On examination, the plaintiff was complaining of pain in his right shoulder and was not able to use his right arm at all. The plaintiff was in obvious discomfort with limitation of all movements.
120 Dr McGovern noted an x‑ray did not show any abnormality.
121 The plaintiff was referred for physiotherapy but there had been no improvement in functioning by the time she reviewed him on 13 October 2008.
122 Dr McGovern noted the plaintiff had a soft tissue ultrasound which showed bursal thickening and bunching. The plaintiff saw her colleague, Dr Hargraves, and had two cortisone injections which made very little improvement to his pain or range of movement.
123 When Dr McGovern reviewed the plaintiff on 17 December 2008, he reported worsening pain keeping him awake at night. All shoulder movements, particularly flexion and abduction, were limited.
124 Dr McGovern then referred the plaintiff to Mr Dooley because of deterioration in his symptoms.
125 Dr McGovern reported the plaintiff had been unable to do his usual work since the accident. As this was his dominant hand and he was unable to drive, she did not think he was able to do any other work at that stage. She did not think the condition was permanent, but she would be unable at that stage to give a timeframe for recovery and would refer to the specialist in that regard.
126 Notes from Primary Health Care set out the plaintiff attended on 4 September 2008 complaining of being hit by a car eleven days ago. He landed on his right shoulder and was knocked out and had numbness in his right hand. The plaintiff then had pain in his right shoulder with cracking.
127 On 5 September 2008, the plaintiff was referred for physiotherapy. There were further attendances on 8, 12 and 19 September, 13, 23 and 29 October, 25 November and 17 December 2008.
128 On 25 October and 25 November 2008, the plaintiff was given cortisone injections. He was referred to Mr Michael Dooley in April 2009 and then referred on to Mr Bonomo for surgery. There were post operative attendances on 18 and 22 June 2009.
129 On 22 September 2009, the plaintiff said he was much better after surgery but in rehabilitation. His right shoulder was tender but improving in abduction. As of November 2009, the plaintiff could not return to work due to ongoing restriction of right shoulder pain. There were subsequent attendances for certificates until early 2010.
130 On 8 June 2010, the plaintiff complained of localised pain, mainly below the right scapular, as well as around both sides of the lower chest wall. He was then going to the gym and lifting weights. Had used Voltaren on the area but did not find much help.
131 The next attendance relating to the shoulder was 15 October 2010. It was noted the plaintiff had been sent by his solicitor to get an x‑ray of his right shoulder. Dr McGovern noted she was “not sure why”. She noted the plaintiff:
“… is now much better, can use right shoulder fully, a little pain but happy with it. Crepitus but full abduction and adduction, initial rotation limited to a greater extent than external rotation. Discussed. I could not see indication for imaging in the plaintiff’s case and suggested the solicitor write requesting a report if any further information was needed.”
132 Mr Dooley, orthopaedic surgeon, wrote to the defendant on 30 January 2009 advising he had reviewed the plaintiff the previous day.
133 From history, presentation and clinical examination, Mr Dooley reported the plaintiff had a rotator cuff syndrome with subacromial bursitis. He advised the defendant he was organising for the plaintiff to have an image-guided injection into the subacromial space and that if the plaintiff did not gain satisfactory improvement with that, he would probably require arthroscopic subacromial decompression surgery.
134 Mr Dooley then thought the plaintiff was not able to work as a carpenter because of his symptoms.
135 On 3 April 2009, Mr Dooley reported to Dr McGovern that the plaintiff had rung to inform him that the cortisone injection gave two weeks’ improvement but his pain was persisting. Mr Dooley advised he had explained to the plaintiff he did not carry out arthroscopic shoulder surgery and had referred him to Mr Bonomo.
136 That letter of referral by Mr Dooley was on 3 April 2009.
137 Mr Bonomo wrote to the defendant on 9 April 2009 seeking approval for arthroscopic subacromial decompression and rotator cuff repair surgery.
138 Mr Bonomo wrote to Mr Dooley on 9 April 2009 thanking him for the referral.
139 Mr Bonomo reported examination revealed impingement signs and subacromial clicking suggestive of a tear in the tendon and the ultrasound stated the structure was intact.
140 As the plaintiff had ongoing disability, Mr Bonomo agreed with Mr Dooley’s assessment that surgery in the form of arthroscopic subacromial decompression and exploration of the tendon was appropriate.
141 On 16 June 2009, Mr Bonomo advised Mr Dooley the surgery had been undertaken. He reported, as expected, the plaintiff had a very large spur which had been removed. Also, as was expected, the plaintiff also had a significant rotator cuff injury and although the defect was not completely reparable, the supraspinatus and infraspinatus portions had been reattached. Mr Bonomo advised, provided those healed satisfactorily, the plaintiff was expected to do well.
142 Mr Bonomo referred the plaintiff for physiotherapy treatment on 6 August 2009.
143 Mark Napper reported in August 2011 that the plaintiff had attended for physiotherapy at the Torquay Physiotherapy Clinic over the past four months. He noted the plaintiff had returned to work prior to starting physiotherapy and he subsequently had deteriorating shoulder impingement type pain with overhead activities, particularly with load.
144 The plaintiff came under the care of that clinic in March 2011 and was treated for ongoing pain with activities of daily living associated with the use of the right upper limb. He had ongoing clinical signs of shoulder impingement scapulohumeral stability.
145 Treatment at the clinic included soft tissue work, capsular mobilising and stretching and dry needling. The plaintiff was coached through a graduated return to work.
146 The plaintiff was last reviewed on 7 November 2011. It was noted the plaintiff struggled to return to sustained overhead activities in a work or leisure capacity. When last assessed, he was able to work except for lifting overhead or sustained repeated movements overhead.
147 Dr Emmerson from Hoppers Crossing referred the plaintiff for a bone scan of the lower legs and feet in February 2010. He also referred the plaintiff to Mr Dooley for persistent bilateral foot pain in March 2010.
Medico-Legal Examinations
148 The plaintiff was first examined by Peter Kudelka, orthopaedic surgeon, on 7 October 2010.
149 The plaintiff told him of the accident, subsequent rehabilitation, return to work and, unfortunately, a further mechanical injury in March 2010, after which his shoulder was once again painful, weak and restricted in movement.
150 At the time of examination, the plaintiff was taking Celebrex and using Voltaren gel.
151 On examination, the right shoulder had good flexion, abduction was restricted to ninety degrees, extension to fifteen degrees, external and internal rotation to sixty degrees and adduction to ten degrees.
152 Mr Kudelka thought, as a result of the accident, the plaintiff sustained a soft tissue injury to the cervical spine which had essentially resolved and an injury to the rotator cuff muscle complex in the right shoulder. As at that examination, despite appropriate treatment, the right shoulder injury had incompletely resolved.
153 Mr Kudelka thought the plaintiff had a reduced capacity for employment as a self employed carpenter and builder due to permanent pain, weakness and restricted right shoulder movement.
154 Mr Kudelka re-examined the plaintiff on 10 September 2012.
155 Movement of the right shoulder was then limited with flexion to one hundred degrees, abduction to sixty degrees, extension to ten degrees, internal rotation and external rotation limited by fifty per cent each, and adduction to ten degrees. There was no muscle wasting.
156 Mr Kudelka confirmed the significant injury from the accident was a torn rotator cuff muscle of the right shoulder, which was treated but could not be completely repaired surgically.
157 The plaintiff’s present condition was pain, weakness and restricted right shoulder movement. As the plaintiff was a right hand dominant, self employed carpenter, Mr Kudelka thought his condition significantly interfered with his earning capacity and although being self employed, he was able to modify his work and employ assistance.
158 Mr Kudelka considered the plaintiff’s long term capacity in the trade was threatened, as his right shoulder, as years progressed, would gradually become weaker and more painful. He suggested the plaintiff would be well advised to gradually look for alternative work. In the short term, he thought the plaintiff could continue working as he was self employed and he could modify his work and employ assistants.
159 Mr Kudelka thought probably a three month review by the plaintiff’s general practitioner would be sufficient, and he could see no indication for further surgery although the possibility of further attempted repair could not be entirely excluded, although for the time being the plaintiff felt he was coping adequately.
160 Mr Kudelka concluded that generally he thought the plaintiff’s strong motivation had enabled him to return to a modified form of employment.
161 Dr Baker, occupational physician, examined the plaintiff on behalf of the defendant on 8 December 2009.
162 On examination, the plaintiff advised he had a restricted range of movement of his right arm and did not have strength in his right arm. He noted his sleep pattern was disturbed if he rolled on his right shoulder and that he woke at 2.00 am. He was then having Voltaren daily.
163 There was a good range of movement of the right shoulder and the plaintiff was able to elevate his arm to one hundred and thirty degrees and abduct to one hundred and twenty. However, he noted he felt some grinding in the shoulder.
164 There was a good range of movement in internal and external rotation and extension. The plaintiff noted he could undertake shoulder movements but could not undertake them repetitively and could not do them against resistance without symptoms.
165 Dr Baker noted the October 2008 ultrasound and various radiology reports from The Alfred carried in August 2008. He also had available to him a report from Dr McGovern and Mr Dooley and also a handwritten note from the operating surgeon.
166 Dr Baker diagnosed rotator cuff injuries to the right shoulder requiring surgery. He thought the injuries were consistent with the forces to which the plaintiff was exposed.
167 At that stage, Dr Baker thought the plaintiff was not capable of returning to undertaking unrestricted duties. He suggested smaller jobs would be one option, or for the plaintiff to hire subcontractors, but that would not be financially viable.
168 At that stage, Dr Baker anticipated the plaintiff returning to work in early 2010.
169 Dr Baker considered the plaintiff’s condition had an organic basis and he did not detect any non physical component to his presentation, although he was getting frustrated with slow improvement.
170 At that stage, Dr Baker thought the plaintiff currently had a pre accident work capacity of seventy to eighty per cent. He anticipated the continued improvement with a return to work in early 2010 and could see no reason why the plaintiff should not return to undertaking his pre injury duties and pre injury lifestyle.
171 Dr Baker provided a supplementary report in April 2011, having re-examined the plaintiff at that time.
172 Dr Baker noted it appeared in March 2010, the plaintiff experienced a flare up of his shoulder symptoms and did not work until December, when he went back to some subcontracting. However, his shoulder played up in March 2011 and he stopped work about a month before the examination.
173 On examination, the plaintiff felt deep pain in the deltoid region over the lateral aspect of the shoulder, made worse by movement. He felt some cracking and grinding when moving his arm. He felt pain over the deltoid region.
174 The plaintiff had a good range of movement in elevation, abduction and rotation and a full range of elbow movement and good grip strength in both hands.
175 Dr Baker then thought the plaintiff had the capacity to undertake work with tools and lifting items up to mid chest level and that he would have a restricted use of the arm above shoulder height.
176 Dr Baker considered it likely the plaintiff would continue to have some restriction of use above shoulder height. Noting the plaintiff complained of some crunching and grinding, Dr Baker would not expect deterioration from the cuff after the repair had been undertaken. In his view however, there may have been some bony injury and therefore there was a possibility of post-traumatic osteoarthritic change.
177 Dr Baker believed, with the plaintiff’s complaints of ongoing symptoms, it might be appropriate to undertake further investigations to determine whether there were signs of osteoarthritis developing.
178 Dr Baker thought the plaintiff was then capable of undertaking a range of exercises and he did not detect impingement at the time of assessment.
179 Dr Baker considered the plaintiff had the capacity to do some work. However, he did not think he could do unrestricted duties which he did previously. He concluded the plaintiff had an eighty per cent capacity for pre injury duties with particular difficulty doing over the shoulder work on a repeated basis or when straining his arm, he got resistance.
180 Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff on behalf of the defendant on 12 September 2012.
181 The plaintiff complained to him of persistent pain, mainly in his right shoulder. He noted some improvement after the surgery but no improvement over the last twelve months. He had right shoulder pain daily, which was not constant, and varied from a minimal pain if inactive to a moderate pain with physical activity. He reported sleeping poorly because of nocturnal pain. His shoulder cracked and grinds on movement and he had pain in the right deltoid region of the shoulder.
182 On examination, there was no significant wasting of the right shoulder. The plaintiff had pain on forward elevation at about ninety degrees but was able to elevate his arm through that painful range. He was not able to sustain abduction. He briefly abducted to ninety degrees, at which point he seemed to experience significant pain and his arm tended to drop to the side.
183 Internal rotation was restricted to sixty degrees and painful, but the clinical sign for subacromial impingement was equivocal as all movements seemed to be painful. Resisted abduction, external rotation and internal rotation were all limited by pain with no focal weakness. There was no neurological abnormality. The plaintiff had some patchy sensory changes to pin prick on the little finger, but that did not extend to the distal end of the finger. There was no muscle wasting or weakness.
184 Mr Simm concluded the injury probably resulted in a traumatic rotator cuff tendonitis with secondary subacromial impingement. On the available information, he was not able to confirm there was a tear as a result of the injury but the file material indicated that was a possibility and the operation performed in 2009 included a subacromial decompression directed towards the rotator cuff tendonitis and subacromial impingement in association with rotator cuff repair.
185 Mr Simm noted the plaintiff currently had substantial persistent dysfunction of the right shoulder consequent upon the soft tissue injury.
186 In Mr Simm’s view, the physical injuries were consistent with the injury and subsequent surgical treatment but range of movement that day was less than recorded by Dr Baker in April 2011. Mr Simm noted that may be due to inhibition from pain or there may have been a voluntary element to the restricted range presented. He found it somewhat difficult to reconcile the painful restriction of movement on examination that day and the fact the plaintiff was working full time as a carpenter, albeit with assistance with overhead activities.
187 Mr Simm thought the plaintiff’s condition had stabilised and that he would need to continue over-the-counter medication and attend his general practitioner.
188 Considering the level of symptoms and restricted movement on that examination, Mr Simm thought it might be appropriate for the plaintiff to have another MRI scan. He thought the plaintiff currently did not have indications for further surgery and on the basis of his presentation, Mr Simm would avoid another operation, as there were features of a chronic adverse pain response.
189 Mr Simm noted the plaintiff was working full time as a builder/carpenter but worked with others to do the heavier work and overhead work. The plaintiff advised he would not be able to frame a house without an assistant.
190 It was Mr Simm’s impression that the plaintiff had quite good function of his dominant right upper limb below shoulder height. He could do domestic activities, but there had been a substantial impact on his leisure activities.
191 Dr Weissman, consultant psychiatrist, examined the plaintiff on 10 September 2012. The plaintiff then told him of pain around his right shoulder and right shoulder girdle, and also some right elbow pain.
192 The plaintiff described his leisure activities as nothing now, before the accident having enjoyed cricket, swimming, playing golf and tennis. He socialised a bit but not a great deal any more.
193 The plaintiff thought his emotional state was okay but he probably had bouts of depression early on, when he was off work. He described his sleep as “pretty terrible”. He described feeling a bit frustrated and irritable and that his temperament had changed since the accident in terms of having a lowered tolerance.
194 On mental state examination, there was no formal thought disorder or ongoing flashbacks of the accident or abnormalities of perception. The plaintiff’s cognition appeared grossly intact. His insight and judgment came across as fairly normal and unremarkable.
195 Dr Weissman thought the plaintiff had mild residual traumatisation features directly due to the circumstances of the accident but not a full blown Post-Traumatic Stress Disorder. He considered the plaintiff was not suffering from a sustained depressive syndrome or disorder. However, he had sleep disturbance with a little insomnia and had a lower frustration tolerance, with some irritability and change in temperament. In other words, he had some symptoms and features of a mild adjustment disorder.
196 Dr Weissman thought the plaintiff’s current psychiatric prognosis was somewhere between fair and good and overall he had sustained and developed a mild group of accident related psychiatric, psychological and behavioural symptoms, signs, features and disturbance. In his view, the plaintiff did not require any specific psychiatric, psychological or psychotropic treatment or intervention, and there was no actual psychiatric incapacity for work.
197 Associate Professor Paoletti, psychiatrist, examined the plaintiff on 19 June 2012.
198 The plaintiff reported shoulder pain all the time but not constant, but if he did something he felt it. He used to do all sorts of sports and things which he now cannot do. When asked about his emotional state, he said, “Okay, I guess, getting on with it”. He thought the hardest thing was not being able to do sports with his kids.
199 The plaintiff reported his sleep was pretty ordinary, always waking up about 2.00 am.
200 On mental state examination, stream and form of thinking were normal and coherent. The plaintiff reported depressive ideation. He had no classic phobias but was more wary as a pedestrian and sometimes on a bike. There were no delusions or problems with perception, memory or concentration. Insight and judgment were normal.
201 From a psychiatric point of view, Professor Paoletti thought the plaintiff had been going through a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, which had considerably settled but had some residual components in terms of frustration at reduced sporting activity and problems with sleep.
202 Professor Paoletti thought the plaintiff did not need psychiatric treatment, but help with sleep would be a reasonable treatment expense.
203 Professor Paoletti considered the plaintiff did not have psychiatric symptoms of a degree to affect his work capacity. He noted the impact the accident had on the plaintiff’s capacity for recreational pursuits, in that his capacity for fitness and playing sport had been virtually eliminated and, in particular, he was concerned about his incapacity to play sport with his young children.
Investigations
204 A CT scan of the brain and cervical spine was carried out on 25 August 2008. It was reported there was no acute intracranial injury and no acute cervical spine bony injury.
205 An x‑ray of the chest, pelvis and right elbow was carried out on 25 August 2008. It was reported there was no displaced rib fracture, the pelvic bony rim was intact and there was no appreciable fracture or dislocation of the right elbow.
206 There was an x‑ray of the right shoulder carried out on 4 September 2008. It was reported the shoulder joint was normally enlocated. No fractures were seen and the clavicle and anterior cruciate joint appeared intact.
207 There was a right shoulder ultrasound carried out on 21 October 2008 at the request of Dr McGovern.
208 It was reported there was bursal thickening with fluid and debris and bursal bunching on abduction resulting in pain. There was no evidence of a rotator cuff tear.
The Defendant’s Medical Evidence
209 The Alfred Hospital records detailed the plaintiff’s admission after the accident.
210 It was noted the plaintiff was a forty four year old man who presented following a low speed cycling accident. He landed on his right side and suffered a very brief loss of consciousness. It was reported he complained of right neck generalised pain, right elbow and right shoulder pain. The shoulder pain was described as aching and the plaintiff denied radiation and aggravated by movement.
211 Dr McGovern’s notes of an attendance on 15 October 2010 set out the plaintiff had been sent by his solicitor for an x-ray of his right shoulder. She noted she was “not sure why. Is now much better. Can use right shoulder fully. A little pain but happy with it”. She also noted right shoulder crepitus but full abduction and adduction. Internal rotation was limited to a greater extent than external rotation.
212 Dr McGovern could see no indication for imaging and suggested the solicitor write to her requesting a report if any further information was needed.
Medico-Legal Examinations
213 Dr Timothy Entwisle, psychiatrist, examined the plaintiff on 2 October 2012. At that time, the plaintiff continued to describe right shoulder pain and having problems with above shoulder work.
214 The plaintiff advised, in terms of his mood, that his tolerance was not as good as it used to be and he could be tense and irritable. He was initially depressed when off work but did not regard himself as depressed currently. He felt he was not back in the groove in terms of his interests and range of activities.
215 The plaintiff complained of waking at 2.00 am due to pain. His affect was quiet and understated. His account was not accompanied by emotional distress or agitation. His memory and concentration were intact, there were no perceptual abnormalities and insight was intact.
216 Dr Entwisle thought the plaintiff did not present with psychiatric symptoms of clinical significance, nor a psychiatric condition. The plaintiff did not require further psychiatric or psychological treatment. He had come to terms with his injury and he had accepted it.
Overview
217 I accept that the plaintiff suffered an injury to his right shoulder in the accident on the said date. Prior thereto, he did not have any problems in this regard.
218 The plaintiff’s statutory benefits claim was accepted and loss of earnings payments were made until April 2010.
219 The consensus of medical opinion is that the plaintiff suffered traumatic rotator cuff tendonitis with secondary subacromial impingement. Surgery in 2009 included a subacromial decompression directed towards the rotator cuff tendonitis and subacromial impingement in association with rotator cuff repair.
220 As operating surgeon, Mr Bonomo, reported, although the defect was not completely reparable, the supraspinatus and infraspinatus portions had been reattached.
221 There is no suggestion that there is a non organic component to the plaintiff’s presentation in any significant sense. Although Mr Simm made a very brief reference to the presence of features of a chronic adverse pain response, he considered the plaintiff currently had substantial persistent dysfunction of the right shoulder consequent upon the soft tissue injury.
222 There is no dispute the plaintiff’s shoulder injury continues to produce pain and restrictions that affect both his work and activities outside work.
223 Counsel for the defendant submitted however, the consequences of that impairment were not “serious”.
224 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph 12:
“….. the weight to be attached to the plaintiff’s account of the pain and suffering experience will of course depend upon an assessment of the plaintiff’s credibility.”
225 In the present case, there was no surveillance film or suggestion by any doctors of exaggeration by the plaintiff, or inconsistencies on examination.
226 Although the plaintiff did not complain of a high level of constant pain as his wife deposed, her evidence corroborating the plaintiff’s complaints was unchallenged.
227 I found the plaintiff to be a credible, honest witness who somewhat understated the level of his complaints and was somewhat reluctant to describe his problems in any detail. As his wife deposed, the plaintiff is a very private person who does not communicate well with doctors. Dr Weissman also pointed out that the plaintiff came across as a low-key non complaining person who tended to underestimate and report his symptoms and distress.
228 I accept that despite a significant problem with his right shoulder, the plaintiff has done his best to return to the workforce and get on with his life. In such circumstances, he should not be treated less favourably than a plaintiff who has resigned himself to his injury – see Haden Engineering Pty Ltd v McKinnon (supra) at paragraph 13; Sutton v Laminex Group Pty Ltd [2011] VSCA 52 at paragraph 83, and Halpin v Wilson Transformer Company Pty Ltd [2012] VSCA 235 at paragraph 44.
229 I accept that the plaintiff suffers constant troublesome right shoulder pain largely dependant on the nature and level of his activity.
230 Whilst there was some improvement following surgery, and later on as noted by his general practitioner in October 2010, of more recent times the plaintiff has required a number of cortisone injections and continues to take over-the-counter Panadol nearly every day.
231 Post operatively, the plaintiff had physiotherapy treatment, as recommended by Mr Bonomo. The plaintiff had further physiotherapy for six months in 2011 following the March 2011 flare up in relation to ongoing clinical signs of shoulder impingement and scapulohumeral stability.
232 The plaintiff’s problems with sleep due to right shoulder pain and tiredness the following day were confirmed by his wife and reported to a number of examiners.
233 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon (supra) at paragraph 45:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … [The plaintiff] often experiences multiple painful awakenings in the course of a single night. As … counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
234 Prior to the accident, playing cricket was the plaintiff’s main recreation from which he gained a lot of enjoyment. The plaintiff is still a relatively young man and I accept that but for his accident injury, he would still be playing regularly and not just on the very infrequent fill in basis he has done this year.
235 As a result of his shoulder condition, the plaintiff can no longer play social tennis, having been an A grade player in his youth. He has difficulty swimming and is no longer able to attend the gym, as he did prior to the accident. He wants to participate in activities he previously enjoyed and is frustrated he cannot do so. His life is now basically work, and he rests. Further, the plaintiff is limited in the sporting activities in which he can participate with his young son.
236 Movement of the plaintiff’s right shoulder continues to be considerably restricted. He has difficulty reaching up above his shoulder with his right arm and he is constantly worried that doing so might cause him further injury.
237 In my view, the most significant consequence of the plaintiff’s right shoulder condition is its effect on his work capacity.
238 Having had ten months off work prior to the surgery, and then eighteen months thereafter, the plaintiff’s first return to work in 2010 was brief, suffering a flare up in March 2010, after which he was unable to work until starting work in his own home later that year. There was a further flare up in March 2011 suffered at work which led to the need for a further referral for physiotherapy.
239 Whilst there is no loss of income or the requirement to change career, the plaintiff continues to experience restriction in his ability to perform his work duties on a daily basis – problems with overhead work and reaching and stretching with his dominant right arm and shoulder – compared to previous unrestricted heavy work and able to do all jobs.
240 The plaintiff continues to require additional assistance when performing work such as was the case with the Yarraville and Torquay properties.
241 Further, the plaintiff has been able to obtain work in Torquay, having met John Walker and Mr Voss through one of the trades he had working on his own home. He is concerned if work is no longer available with them, he would have difficulty finding further work on the open market with other less sympathetic and accommodating builders.
242 The consensus of medical opinion is that the plaintiff is restricted in his ability to work above shoulder height and is limited in the use of his right dominant arm.
243 Noting the plaintiff’s strong motivation, Mr Kudelka thought his shoulder condition significantly interfered with his earning capacity and noted, although being self employed, he was able to modify his work and employ assistance. He considered the plaintiff’s long term capacity in the trade was threatened, as his right shoulder, as years progressed, would gradually become weaker and more painful. He suggested the plaintiff would be well advised to gradually look for alternative work. In the short term, he thought the plaintiff could continue working as he was self employed and he could modify his work and employ assistants.
244 In April 2011, Dr Baker thought the plaintiff had the capacity to undertake work with tools and lifting items up to mid chest level and that he would have a restricted use of the arm above shoulder height. He considered the plaintiff had the capacity to do some work. However, he did not think he could do unrestricted duties which he did previously. He concluded the plaintiff had an eighty per cent capacity for pre injury duties with particular difficulty doing over the shoulder work on a repeated basis, or when straining his arm he got resistance.
245 Mr Simm did not address the issue of work capacity in any detail. Whilst he found it difficult to reconcile the restriction of movement on examination with the plaintiff’s current level of work, he did think the plaintiff currently had substantial persistent dysfunction of the right shoulder.
246 Whilst there is no corroborating evidence from the builders for whom he has recently worked, accepting the plaintiff as witness of truth, there is no reason to reject his evidence as to his work restrictions. I accept that he tries to but cannot always avoid above shoulder work. Accordingly, he wears a shoulder brace for support. At times when he experiences sharp pain at work, he simply takes a break and then starts again when the pain lessens.
247 I accept that as a result of his accident injury, the plaintiff has gone from a fit, healthy man with a strong work history in solely manual work to someone with a bad shoulder which leads to restricted employment opportunities and the need to modify the duties he undertakes. His injury has denied him the flexibility in his employment he previously enjoyed – see State of Victoria v Glover [1998] VSCA 98 at paragraphs 18, 29 and 30.
248 Further, due to his work restrictions, at the moment it does not seem the plaintiff will be able to take on his son as an apprentice as he had hoped. This situation was one that upset the plaintiff, as became apparent when he broke down in cross examination when questioned in relation thereto.
249 When considering the seriousness of the plaintiff’s physical impairment, I am also permitted to take into account the expected mental consequences of his injury – see Winneke P in Richards v Wylie (supra).
250 Both Dr Paoletti and Dr Weissman were of the view whilst there was not a diagnosable psychiatric reaction, there were symptoms and signs of Adjustment Disorder type present with the plaintiff’s frustration at his restrictions at work and domestically due to his shoulder injury.
251 Taking into account all the evidence, I am satisfied that the plaintiff has a serious injury in relation to his right shoulder. He is a man in his early forties, who faces the prospect of pain and restriction in his dominant arm for the rest of his working life and no longer has the pleasure of doing the things he used to enjoy outside work.
252 Further, I am satisfied that the plaintiff’s shoulder impairment is long term, as it has persisted for in excess of five years without any significant improvement. Although there is no evidence at present of osteoarthritic change, there is a risk that the plaintiff’s condition may worsen in the future.
253 Accordingly, I grant the plaintiff leave to bring proceedings for damages in relation to the transport accident.
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