Scicluna v Australian Stainless Distributors Pty Ltd [2017] VCC 187 (10 March 2017)

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IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised

Not Restricted

Suitable for Publication

TONY SCICLUNA	Plaintiff

v

AUSTRALIAN STAINLESS DISTRIBUTORS PTY LTD	Defendant

JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	2 March 2017
DATE OF JUDGMENT:	10 March 2017
CASE MAY BE CITED AS:	Scicluna v Australian Stainless Distributors Pty Ltd
MEDIUM NEUTRAL CITATION:	[2017] VCC 187

Subject: Application pursuant to s.134AB of the Accident Compensation Act 1985 for leave to commence proceedings to recover damages for pain and suffering relating to an injury to his right upper limb

Judgment: Leave granted to the plaintiff to bring proceedings for pain and suffering damages for injury to his right shoulder on 13 May 2011.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Ruddle	Slater & Gordon Ltd Lawyers

For the Defendant	Mr A Middleton	Russell Kennedy

1 Mr Tony Scicluna (“the plaintiff”) applies pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”) for leave to commence proceedings to recover damages for pain and suffering relating to an injury to his right upper limb.

2 The plaintiff alleges that, on 13 May 2011, whilst working for the defendant as a truck driver, he was pulling on a strap in order to secure a load when it broke and he suffered a jolt to his right shoulder, which struck the tray of the truck (“the incident”). He alleges that he suffered injury by way of a full thickness tear to the supraspinatus tendon in his right shoulder and this injury has given rise to a permanent impairment which satisfies paragraph (a) of the definition of “serious injury” in s134AB(37) of the Act. The plaintiff contends that this impairment has pain and suffering consequences which are serious.

3 The defendant does not dispute that the plaintiff suffered an injury to his right upper limb by way of a full thickness tear to the supraspinatus tendon in the incident or that the injury necessitated him undergoing surgery by way of subacromial decompression and repair on 13 September 2011. The defendant concedes that the plaintiff suffers some ongoing symptoms and restriction of shoulder movement. The dispute between the plaintiff and the defendant is whether the plaintiff suffers pain and suffering consequences of the impairment to his right upper limb which meet the test of “serious injury” as set out in s134AB(38)(c) of the Act. That test is whether the impairment or loss of function of the right upper limb, when judged by comparison with other cases in the range of possible impairments or losses of body function, is fairly described as being more than significant or marked, and as being at least very considerable.[1]

4 The plaintiff is presently aged sixty-three years, having been born on 9 September 1953. He finished school after completing Form 2 at Broadmeadows Technical School and, for approximately eight years thereafter, worked in a variety of unskilled process work/labouring jobs. Since then, at all relevant times, he has worked as a truck driver. He is right-hand dominant.

5 In August 2004, the plaintiff began work with the defendant as a truck driver. His work involved lifting steel from pallets, securing the load of the truck with straps and making deliveries. On 13 May 2011, he injured his shoulder in the incident. He apparently saw a general practitioner, Dr Ng, at the Craigieburn Medical Centre four days later, on 17 May 2011. On 30 May 2011, he again saw the same doctor complaining of pain in the right shoulder and inability to elevate the shoulder and was referred for an ultrasound. This was conducted on 1 June 2011 and showed “a large full thickness tear of the supraspinatus tendon measuring 8 x 7 millimetres”.[2]

6 A report from Craigieburn Medical Centre dated 4 May 2015 reveals that, on 21 June 2011, Dr Ng prescribed Voltaren and certified the plaintiff as fit to return to normal duties. However, eight days later, on 29 June 2011, he returned to the Medical Centre and reported to his usual treating general practitioner, Dr Psycharis, that he was suffering persistent pain and restriction of movement of the right shoulder. He was referred for physiotherapy, with no real relief. He was then referred to Professor Lyons, orthopaedic surgeon, on 21 July 2011, who was of the opinion that the plaintiff required surgical repair of the rotator cuff. As Professor Lyons was going on leave, the plaintiff was then referred to Mr John Owen, orthopaedic surgeon, who saw him on 1 September 2011 and agreed to perform the surgery.

7 On 13 September 2011, Mr Owen performed a subacromial decompression and identified a large rotator cuff tear which he repaired arthroscopically. He reviewed the plaintiff six weeks post-operatively and reported back to Dr Psycharis that the plaintiff had a very poor range of movement and required physiotherapy. The plaintiff undertook physiotherapy from early November 2011 to mid2012, when funding for such treatment was ceased by the WorkCover insurer. Thereafter, the plaintiff undertook some osteopathic treatment.

8 The plaintiff remained off work from the date of his shoulder surgery on 13 September 2011 until 6 February 2012, when he was certified as fit to return to modified duties. These involved avoiding lifting greater than 5 kilograms and overhead work. He continued to work on modified duties with persisting discomfort until 29 May 2013, when Dr Psycharis certified him as fit to return to pre-injury duties.

9 The plaintiff’s evidence is that, after resuming pre-injury duties, “The employment situation broke down when I felt my employer was requiring me to carry out too heavy lifting work at the depot at times I was not truck driving. This was the lifting of heavy steel from pallets and it was proving too painful for my right shoulder. My employer told me to resign on 13 June 2013 which I did.”[3]

10 The plaintiff’s version of events is corroborated by Dr Psycharis in the aforementioned report dated 21 June 2011. He stated, “I next saw him on 14/06/2013 when he reported that after he returned to his pre-injury duties he was given heavier than normal duties and began to experience pain in his right shoulder. After complaining to his employer he was told to resign which he did.”[4]

11 In August 2013 the plaintiff began working as a truck driver for Spiral Logistics on a full time basis. He has continued to work in such employment until the present time. The plaintiff states, “It is one of the lighter truck driving jobs I have ever had, if not the lightest. I am not required to manually handle the load in any way.”[5]

12 The Plaintiff states that, notwithstanding that his present job is lighter than the one which he had with the defendant, there are still aspects of it which cause him difficulty and pain in his right shoulder. These include pulling a tarp over the load, pulling the tarp tightly to secure it, doing up ratchets and chains on the load and keeping his right hand on the steering wheel for a long time.[6] In essence, the plaintiff’s evidence is that he protects his right arm and uses his non-dominant left arm as much as possible in his work. He states that each day at work he takes six Panadol Osteo tablets and one Voltaren tablet. In addition, he rubs Voltaren Gel on his right shoulder a couple of times during the day and, generally speaking, his right shoulder is tired and sore by the end of the day. He states that his wife rubs the shoulder with Voltaren Gel before he goes to bed and he also applies a heat pack. However, his sleep is often disturbed because of pain in the shoulder. About once per week he takes one of his wife’s Tramadol tablets, which she has had prescribed by her doctor for an injury to her knees.

13 The evidence in the plaintiff’s second affidavit concerning his current situation is as follows:

“19. I have an aching pain in my shoulder that is there all the time but it changes in intensity. The pain seems to go from the back part of my shoulder, over the top down to the front part, then sometimes it goes down into my right arm too. If I move my shoulder too much, then the pain will gradually build up and up and become a burning sort of pain.

20. I also get totally random pain flare ups. I can just be sitting there at work or at home when they come on, if it is at home I can stop and rest. But if it is at work I just have to take my pills and give it a rub and push through. It’s hard not to use my right arm at all at work.

21. The range of motion of my shoulder is still restricted as I described in my previous affidavit. My strength is limited and I still struggle and experience difficulty when opening jars, for example.”[7]

14 Generally speaking, the plaintiff states that he is unable to do things which involve lifting his arm above shoulder height or forceful actions. For example, since his injury he can no longer carry out heavy loads of washing and hang them up or do other heavier household tasks such as vacuuming, mopping, gardening or pruning trees. He has difficulty dressing himself with clothing which needs to be put over his head or reaching down to do up his shoes. Also, reaching around to wash himself or his hair in the shower causes him pain.[8]

15 As far as leisure and sporting activities are concerned, the plaintiff’s evidence is that, prior to his shoulder injury, most weekends, he and two friends would play nine holes of golf and sometimes 18 holes. He is no longer able to do so. In addition, he enjoyed working on cars, both his own and that of friends, and he finds that his shoulder prevents him from doing this now. Further, he has two grandchildren, each now aged two and a half years, and he finds that he is unable to engage in robust play with them.

16 The plaintiff agreed during cross-examination that, although he had attended his general practitioner for other conditions during the 3 ½ years between 14 June 2013 and February of this year, he had not sought any medical treatment for his shoulder over that time. He stated that he presented to Dr Psycharis, in February 2017 because in the last few months the discomfort had worsened. He stated that during the interval of 3 ½ years before that, he had continued to take Panadol Osteo and Voltaren tablets daily and used Voltaren gel and heat packs, as well as doing hydrotherapy exercises once per week and home exercises for the shoulder three times per week and attending for a massage of the shoulder once per month from a relative who is a massage therapist.

17 Mr Ruddle, for the plaintiff, relies upon the aforementioned evidence in support of the plaintiff’s application. He submits that, on the basis of the plaintiff’s pain alone, which requires his daily intake of medication and which he has endured for seven years and, according to medical evidence, is unlikely to change, the evidence meets the test of serious injury. In any event, he submits that the plaintiff’s diminished physical strength in relation to his work capacity, the inability to participate in the one sport which he loved and his hobby of tinkering with cars, together with his reduced capacity to undertake the heavier household tasks, all support that the pain and suffering consequences of the impairment to the plaintiff’s right upper limb meet the test of more than significant or marked and at least very considerable.

18 On behalf of the defendant, Mr Middleton submitted that the evidence supported that the plaintiff had had a reasonably good recovery from his surgery which enabled him to get back to work. Moreover, the fact that the plaintiff had not sought any medical treatment between June 2013 and February 2017, but had been able to care for his shoulder himself with non-prescription medication and exercises, is an indication that he has not suffered any significant impediment to his daily activities or working life. He urged the Court to note that, prior to the plaintiff commencing with his current employer, Spiral Logistics, in August 2013, he had undergone a medical examination where the examining doctor had recorded: “There is mild restriction in abduction of right shoulder”[9] and “Right shoulder surgery not impacting on ability to function.”[10]

19 Mr Middleton also relied upon the most recent expert opinion, a medico-legal examination requested by the plaintiff’s solicitors by Mr Grossbard, orthopaedic surgeon, on 4 July 2016. Mr Grossbard had noted that reflexes, power and sensation in the upper limbs were normal, there was no muscle wasting around the right shoulder, girdle, and the supraspinatus and infraspinatus and subscapularis were functioning normally. He submitted that Mr Grossbard’s opinion that there was mild limitation of shoulder movement and some limitation of activity, both from a work and recreational point of view, supported the defendant’s contention that the plaintiff’s case did not meet the threshold of serious injury. Moreover, he submitted that surveillance film of the plaintiff taken on 28 November 2015 indicated that the plaintiff was not protecting himself and he seemed to have some freedom of movement.

20 Where, on the face it, one has a plaintiff who has demonstrated an ongoing capacity for full time work with no loss of income and who has not specifically consulted his doctor for the subject injury in a period of some 3 ½ years, it is understandable why the defendant would argue that the plaintiff’s pain and suffering consequences do not meet the threshold test of serious injury. However, it is fundamental that an assessment of whether a plaintiff’s consequences are serious must be based upon the entirety of the evidence before the Court. The Court must determine what impact the plaintiff’s injury has on his capacity to work as well as to engage in other activities of life. It is well established that “The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which an ‘area of work which [the plaintiff] enjoyed ha[s] been closed off to [him or her]’.[11]”

21 There were a limited number of medical reports tendered in evidence: two from the plaintiff’s treating general practitioner, Dr Psycharis, dated 4 May 2015 and 17 February 2017, one from the treating surgeon, Mr Owen (who has not seen the plaintiff since late 2011) dated 30 April 2015, a medico-legal report obtained by the defendant from Associate Professor Buzzard dated 1 September 2015 and the aforementioned medico-legal report from Mr Grossbard dated 11 July 2016.

• On 14 February 2017 Dr Psycharis recorded a history that the plaintiff, “had been experiencing soreness and discomfort in the right shoulder on and off” (since the surgery) but “in the last few months the discomfort had worsened”.[12] Dr Psycharis found some tenderness over the right subdeltoid region and movements restricted by pain, particularly abduction. Dr Psycharis ordered an ultrasound of the right shoulder, but it has not been performed.[13]

• Mr Grossbard took a history of “intermittent pain in the right shoulder. This can come on at any time and last for 30 to 60 minutes at a time.”[14] Mr Grossbard stated that, although the plaintiff had made a good recovery following surgery, he “has ongoing symptoms and some mild limitation of shoulder motion” and “some limitation of activity from both a work and recreational point of view.”[15]

23 In cross-examination, the plaintiff’s description of pain and restrictions in the plaintiff’s second affidavit were not specifically challenged. However, he was asked whether he had told Mr Grossbard “that the pain is intermittent, it comes and goes away” and he responded “Yeah, it goes, comes, sometimes there, you know, all day, especially if I am doing heavy stuff”.[16]

24 I must say that I found the plaintiff to be an honest, straightforward witness. He did not seem to me to be exaggerating his injury or pain or restrictions and no doctor has suggested that he has ever done so. In the plaintiff’s second affidavit, he stated that he tried to protect his right arm at work and use his left arm, but under cross-examination he stated that, sometimes, when ratcheting down chains he would forget and use his injured arm and, on other occasions, he needed two hands in order to pull the tarp down. He stated, “I don’t say that I don’t use my arm, I still use it, but at the end of the day I'm full of pain, but I mean, even when I do it. That’s why I get the tablets in the morning. My wife gives me the tablets and I take them.”[17] I accept that this is an accurate depiction of the plaintiff’s pain. It is supported by his wife who states that she can tell that he is in pain by the noises he makes and his facial expressions, that she prepares his medication to take to work and it is all gone when he returns at the end of the day. She states that “When he gets home from work he will often complain that his right shoulder is sore” and confirms that “at some point before he goes to bed she massages his shoulder with Voltaren Emulgel.” She also confirmed that he tosses and turns at night and about once per week she will give him one of her own prescribed Tramadol tablets to help him sleep.[18]

25 In the course of the hearing, the defendant played and tendered film taken of the plaintiff on 28 November 2015. The film runs for approximately 28 minutes. Mainly, it shows the plaintiff holding one of his grandchildren in his left arm, albeit that, for a brief period of about a minute, he transfers the child to his other arm. Presumably the child is slightly over one year of age at the time, since both of his grandchildren are now around 2 ½ years old.[19]

26 There are times during the film when the plaintiff raises his right arm to shoulder level or slightly above to point at something or lean on a cyclone fence, but this is a fleeting activity. On one or two other occasions the plaintiff very briefly touches the top of his head as though he is scratching. This was done with his right arm whilst he had the child in his left arm. My impression of the film is that, had I not known anything about the plaintiff, I would have assumed that he was left hand dominant because it would seem somewhat unusual to hold a child in one’s non-dominant arm for the vast majority of the time. The activity depicted was very sedentary indeed. It consisted of standing still or walking a short distance or, momentarily doing something with the child on a ride-on toy. As the plaintiff stated in his evidence, he has never claimed that he is unable to use his right arm but, rather, that sustained use above shoulder level or doing anything particularly heavy causes him pain. In my view, the footage is consistent with a person who favours his injured arm by mainly using his uninjured one. It does not cause me to doubt the veracity of the plaintiff’s evidence.

27 I accept the plaintiff’s evidence that for a considerable time now, he has needed to take the aforementioned medication in order to get through each day at work. Thus, the histories taken by Dr Psycharis and Mr Grossbard of intermittent pain must be looked at in the context of the regular daily regime of analgesic and anti-inflammatory medication taken by the plaintiff. I also accept that Voltaren Gel is rubbed onto his right shoulder twice during the day and again at night and he uses a heat pack, as well, before going to bed, but his shoulder still causes him to toss and turn during the night.[20] Indeed, as long ago as 31 August 2014, when the plaintiff was assessed by Associate Professor Buzzard, he complained that the pain was brought on by sleeping on the right shoulder.[21]

28 Overall, the plaintiff appeared to me to be a person who has done his best to get on with life in spite of his shoulder problems and is not of a personality type to readily complain about the impact that the injury has had upon him. This is in accordance with the evidence from his wife that “He is not the sort of guy who complains a lot or talks about his feelings.”[22] He seemed to have a robust, practical attitude to life. He was obviously keen to remain in the workforce after finding that he could not manage the heavier work with the defendant and it makes sense to me that he would be unlikely to emphasise his difficulties when undergoing the medial assessment for his current job as recorded in the pre-employment medical report.[23]

29 When it was put to the plaintiff in cross-examination that he had not complained about shoulder pain to his general practitioner in the 3 ½ year period since June 2013, he responded that he had been taking tablets and didn’t really need to see the doctor, as he could not do anything for him.[24] There is no evidence that his general practitioner would necessarily have prescribed treatment other than that which the plaintiff is taking by way of Panadol Osteo and Voltaren tablets, Voltaren Gel, home exercises, self-managed hydrotherapy and some massage.

30 I note that, back in August 2014, Associate Professor Buzzard had recorded that the plaintiff still had symptoms and signs in relation to his right shoulder which were not likely to change in the future and that it was reasonable to accept that he was not able to carry out the same social and domestic activities as he did prior to the injury and that this was not likely to change in the future. He had noted that the plaintiff had a decreased range of movement of his right shoulder, which gave rise to a permanent impairment and that pain was brought on by elevation of the arm above shoulder height, by sleeping on the right shoulder, and by driving a vehicle with his arm elevated.

31 When Mr Grossbard assessed the plaintiff two years later in July 2016, he took a history that the plaintiff “feels over the past few years things have not changed significantly.”[25] He considered that the plaintiff does require his current medication, but did not believe that there was any further specific action required or that any further surgery was indicated. To my mind, this emphasises that the regime of treatment which the plaintiff has been following, is effectively all that can be done to try to alleviate his symptoms and regular attendances at doctors would have been unlikely to make any difference. Mr Grossbard expressed the view that the plaintiff should avoid situations where he is required to undertake pulling and pushing or heavy lifting as well as avoiding working at or above shoulder height, particularly in a forceful manner.[26]

32 I am satisfied on the balance of probabilities that, following the injury to his dominant right upper limb in the incident, the plaintiff has suffered an impairment by way of restriction on his capacity to use his right arm for any meaningful or sustained activity above shoulder level. The impairment also confines him to activities using his right arm below shoulder height which do not involve lifting other than very light weights or, significant or sustained pulling or pushing. I have accepted that by reason of pain and restriction of movement in his right shoulder, the plaintiff was unable to undertake the heavier aspects of his employment with the defendant and that he is why he resigned from that employment in June 2013.

33 I find that on all of the evidence, the plaintiff has suffered a diminution in his work capacity which prior to the incident involved manual work requiring significant physical exertion by way of loading and driving trucks. From the date of cessation of employment with the defendant to the present time, his inability to work effectively above shoulder height and to undertake work requiring any significant degree of pulling, pushing or heavy lifting or application of force has persisted. In accordance with the most recent assessment by the specialist, Mr Grossbard, I consider that this diminution of work capacity is likely to continue into the foreseeable future.

34 Thus, although this application is confined to pain and suffering consequences, I am satisfied that, if the plaintiff were to lose his current position, he would be in a very vulnerable position and unlikely to be unable to find employment within his limitations. It is my very clear impression that it is only because the plaintiff is highly motivated to work and is prepared to put up with pain and to take a daily regime of six Panadol Osteo tablets and one Voltaren tablet that he has been able to sustain his current employment. Understandably, the plaintiff is conscious of his vulnerability: “I don’t know what I would do if I lost this job...I believe that my shoulder injury has caused me a loss of flexibility in the type of work I can do, in that I am restricted to light truck driving only now”.[27] Thus, work involving heavier truck driving duties is an area of work that is closed to him. This had been the job that he knew and loved for most of his working life.

35 I am satisfied that the plaintiff’s injury to his right shoulder causes him to suffer pain on a daily basis. Whether it be described as a constant ache with episodes of severe pain, or as intermittent pain with flare-ups which last for 30 to 60 minutes at a time, I find that it is of a level which necessitates the daily medication that he has now taken for many years, as well as the use of anti-inflammatory gel and heat packs. I take judicial notice of the fact that the dosage of Panadol Osteo taken by the plaintiff is the maximum recommended daily amount. I am satisfied that the current regime of treatment is likely to continue into the foreseeable future. The plaintiff’s pain and restriction of movement have not changed significantly since things stabilised in the post-operative period and there is no evidence of any expected improvement into the future.

36 I find the plaintiff to be a stoical person in terms of dealing with his pain and trying to get on with life by continuing to work as a truck driver, even though turning the wheel of the truck with his right hand and doing some activities which require the use of both hands in that job, cause him to suffer. I am mindful of the authorities which have emphasised that it would be wrong-headed to treat a stoical plaintiff less favourably than another person who had succumbed to his injury, and that a stoical plaintiff should not be disadvantaged.[28]

37 I am satisfied that the plaintiff’s shoulder pain does interfere with his sleep in that he tosses and turns or awakes in pain from sleeping on his right shoulder, and that approximately once per week he succumbs to taking one of his wife’s Tramadol tablets to help him sleep. The plaintiff suffered a frank episode of injury and the rotator cuff tear which he sustained was a large one. His complaints of pain being exacerbated by overhead or forceful activities are consistent with the limitations which the orthopaedic specialists have indicated might be expected from this type of injury and the fact of his experiencing pain and it’s restrictions is corroborated by his wife’s affidavit. Although the operating orthopaedic surgeon, Mr Owen, has not seen the plaintiff since the post-operative review in 2011 he stated that generally patients with large cuff repairs have a guarded prognosis and such repairs never give the patient a normal shoulder.[29]

38 Apart from interfering with his sleep and requiring pain relieving medication, the pain impacts upon aspects of his self-care when he is showering and washing his hair, putting garments over his head or pulling on his socks and shoes. The pain and restriction of movement has meant that he is unable to undertake heavier household tasks which he used to perform prior to the injury such as vacuuming, mopping, hanging out the washing and gardening activities like pruning. He struggles with everyday tasks like opening jars [30] or undoing bolts or using tools.[31] The plaintiff was fit and strong before his injury, and such activities formerly would not have caused him any difficulty.

39 The plaintiff is a man of limited education (year 8 level), who appears to have been proud of his physical strength and he is now reduced to helping out with minor household matters such as dealing with the dishwasher or setting the table. I am satisfied that this has been erosive of the plaintiff’s sense of self-worth in that he has stated, “I feel a bit useless and like I'm not pulling my weight these days.”[32] This is supported by the evidence of his wife as follows: “Though he wouldn’t like to hear me say it, Tony is pretty useless around the house now. He used to be responsible for a whole lot of things – the heavy housework, the garden and always hanging out the washing, that was his big thing. He doesn’t do any of that since he hurt his shoulder. Sometimes he looks a bit down or frustrated when my son-in-law or daughters are doing all the housework and I believe it’s because he feels bad that he is not helping.”[33]

40 Prior to his injury, the plaintiff enjoyed playing a social game of golf with two other friends on most weekends and, during holidays, they would sometimes play mid-week.[34] He would generally play nine holes but, sometimes, 18 holes and would be out for a few hours at a time. He stated that since he injured his shoulder, he had tried once to play, but was unable to do so.[35] He has stated, “I miss that a lot, as much (as) seeing all my mates as the golf.”[36] In addition, prior to injuring his shoulder he had enjoyed tinkering with and servicing cars of his own and his friends. It had been a long-term hobby and it made him feel good to be able to help out other people. He is unable to engage in that hobby anymore because of his inability to lift his dominant arm properly or do heavy things with it.[37]

41 Since last year, the plaintiff and his wife have lived with one of their daughters and her partner and child. As previously mentioned, he has two grandchildren who are aged two years. In the plaintiff’s second affidavit he states that his shoulder impacts on his ability to play with them which upsets him, he can’t hold them for long before his shoulder aches, he avoids throwing a ball to them with his dominant arm and struggles to get down on the floor to play with them and be the active sort of grandparent he would like to be.[38] I have already commented upon the sedentary nature of the interaction with one of his grandchildren depicted on the surveillance film.

42 The plaintiff is a person who, by virtue of limited education and his long term work experience, has relied on his physical strength for his work, self-esteem and recreational and leisure activities. He is not an academic or particularly cerebral person. Indeed, Mr Grossbard noted that he is very poor at reading and writing and does not have any computer skills.[39] Thus, he is not a person who is likely to find new sedentary hobbies such as reading books or magazines, playing chess or other games requiring strategic ability, or pursuing interests on the internet. I find that the plaintiff’s pain and limitation of movement consequent upon the impairment to his dominant right upper limb have diminished his physical capacity and, eroded his self-image, as someone who prided himself on his hard physical work and strength. He has managed to maintain himself in the workforce through significant willpower and stoicism, but he has suffered a diminution of his work capacity and is clearly frustrated by his inability to do strong physical things which he used to be able to do.

43 The consequences of the impairment have affected his life outside work in that he cannot play the only sport which he pursued regularly, and misses the camaraderie of his golfing companions. He cannot pursue his hobby of working on cars and feels fairly useless because he is unable to contribute at home by undertaking the heavier household tasks which he used to perform before his injury. His sleep is affected. Although he is able to hold his young grandchildren for periods of time, mainly in his non-injured arm, his capacity to engage in robust play with them is limited by his impairment and this reduction in enjoyment is likely to be an increasing one as the children get bigger and become involved in sporting and other physical recreational activities.

44 In Dwyer v Calco Timbers Ltd (No 2) [40] Ashley JA stated that “it is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained”. This is a proposition which has been cited with approval by the Court of Appeal in subsequent cases. Upon assessing the evidence in this case, I find that the plaintiff’s life outside of work is now relatively empty compared to what it was prior to his right shoulder injury. He has retained very little of his capacity to enjoy those interests and activities which defined him as a person and made his leisure time most enjoyable to him. When he ultimately retires from work it is likely that his retirement years will be very much less fulfilling and pleasurable than they would have been without his injury.

45 Thus, even leaving aside the plaintiff’s reduced capacity for work, his pain and restriction of movement, which will continue to require daily medication, interferes with his enjoyment of life in the numerous ways I have mentioned. All of these matters in combination, in my view, add up to consequences of an impairment when judged by comparison with other cases in the range of possible impairments or loss of a body function which can be fairly described as being more than significant or marked and as being at least very considerable.

46 Accordingly, the plaintiff has discharged the burden of proof and leave is granted to the plaintiff to bring proceedings for pain and suffering damages for injury to his right shoulder in the incident.

^[3] Paragraph 14 of the plaintiff’s affidavit sworn on 28 October 2015 (“the plaintiff’s first affidavit”)

^[5] Paragraph 15 of the plaintiff’s affidavit sworn on 20 February 2017 (“the plaintiff’s second affidavit”)

^[28] Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, paragraph 3. This proposition has been cited with approval in subsequent decisions such as Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 and Sutton v Laminex Group Pty Limited [2011] VSCA 52; (2011) 31 VR 100.

County Court of Victoria

Scicluna v Australian Stainless Distributors Pty Ltd [2017] VCC 187 (10 March 2017)