1 In this matter I have had the very considerable advantage of reading in draft the reasons for judgment of Osborn JA.

2 I agree with his Honour that, despite the detailed and carefully constructed reasons of the judge below, it is apparent that her Honour to some extent misapprehended the opinions of the appellant's two treating surgeons and evidence as to whether the appellant retains the ability to engage in moderate activities such as swimming and playing tennis with her grandchildren.

3 I also agree with Osborn JA that, when one takes into account the degree of continuing pain to which the appellant has been subjected by her injury, with which she is able to deal only with the aid of daily consumption of Tramadol and Panadeine Forte as required, the pain and suffering consequences of her injury can fairly be described as being more than significant or marked and being at least very considerable.

4 In the result, I agree with his Honour that the appeal should be allowed and with the other orders for the disposition of the appeal which he proposes.

5 The appellant is a 74 year old woman who suffered a rotator cuff injury to her right shoulder as the result of tripping and falling at work on 24 February 2009. She has continued working assembling transformers in the respondent's factory since the accident, but has suffered ongoing pain and a number of other consequences which have affected her daily life.

6 In March 2011, she commenced proceedings in the County Court at Wodonga seeking leave pursuant to s 134AB of the Accident Compensation Act 1985 to commence proceedings in respect of that injury.

7 The application was heard on circuit and, on 30 November 2011, a County Court judge refused the appellant leave.

8 The appellant does not dispute that her Honour applied the correct tests in reaching the conclusion she did. Nor is it disputed that her Honour made a series of findings which were correct upon the evidence. It is submitted, however, that her Honour erred in the conclusions which flowed from those findings, failed to take into account other relevant considerations and failed to provide adequate or appropriate reasons for her decision. It is convenient to deal with these matters in reverse order.

9 I do not accept that her Honour failed to provide adequate or appropriate reasons. Indeed, her decision is a model of clarity.

10 Her Honour first set out the relevant legal principles. She secondly identified the critical issue in the case, being whether the consequences of the appellant's injury do or do not meet the test of seriousness for pain and suffering, namely whether they could be considered 'as being more than significant or marked and as being at least very considerable' when compared to other cases in the range.[1] Thirdly, her Honour summarised the appellant's evidence in substantial detail. Fourthly, her Honour summarised the results of medical imaging. Fifthly, her Honour summarised the evidence of Mr Kolt and Ms Keith, the appellant's treating surgeons, and Mr O'Brien, Mr Shannon and Mr Jones, who expressed medico-legal opinions. Sixthly, she made findings as to the credit of the appellant and seventhly she explained her overall conclusions by way of detailed findings as to the facts within the framework of analysis suggested by Maxwell P in Haden Engineering Pty Ltd v McKinnon.[2]

1. The plaintiff said that at work multi skilling was being encouraged and she is precluded from participating because the other jobs require reach, which she is unable to do because of her injury. I accept this is a consequence of her injury.

1. It is accepted that the plaintiff has residual symptoms with her right shoulder, but the residual symptoms have left her in the main with an arm that can be used in a reasonably normal fashion. I accept that the plaintiff has suffered consequences in daily living as a result of the injury to her right shoulder. The plaintiff is aged seventy-two. To her credit, she continues to work and has no plans for retirement. She has retained the ability to engage in moderate physical activities such as swimming and playing tennis with her granddaughter, drives her motor vehicle, and travels overseas. She has a permanent relationship and retains a relatively active lifestyle for a woman of her years.

1. Section 134AB was intended to restrict the availability of common law damages to workers whose impairments were of "very considerable" magnitude. Although the plaintiff's shoulder injury had a notable effect on her life, she retains the capacity to participate in many activities and to undertake full-time work.
2. Taking all of the evidence into account, and in light of the evidence as a whole, I accept the plaintiff suffered a shoulder injury at work in January 2009. I accept the injury has had consequences to her, but I am not satisfied that, when judged by a comparison with other cases in the range of possible impairments, the injury can "fairly be described as being more than significant or marked and as being at least very considerable".[3]

12 Putting aside, for present purposes, the question of whether or not her Honour's ultimate conclusions were correct, her path of reasoning is quite clear.

13 The appeal was substantially argued on the basis that the trial judge's Reasons demonstrated that she misapprehended aspects of the evidence and in turn took into account irrelevant considerations and failed to take into account relevant considerations.

14 Mr Gorton first identified some 11 instances in which her Honour's summary of the evidence was said to be inadequate. As Mr Wheelahan drew to our attention, however, the summary of facts agreed by the parties for the purposes of the appeal states in part:

Although the appellant claims that her Honour's reasons are affected by error, the parties acknowledge that her Honour's summary of the lay and medical evidence is generally accurate.

15 Save in one respect, the summary of evidence now complained of is accurate and the real complaint is that it does not give a full enough picture of the evidence. The inaccuracy identified is the statement as part of the summary of the appellant's evidence that: 'she agreed that in 2009 she was taking Tramadol for back pain and not for her shoulder injury.' The appellant's evidence was that in 2009 she was taking Tramadol for back pain in addition to her shoulder injury. Although I accept that there is an incidental misstatement in the summary in this respect, I am not persuaded that it materially affected the course of her Honour's reasoning. Insofar as complaint is made about the fullness of the summary, I am also not persuaded that there is any material inadequacy in its extent. It is, in general terms both balanced and detailed.

16 Mr Gorton next attacked aspects of her Honour's findings as to the appellant's credit. Her Honour found aspects of the appellant's evidence contradictory and confusing. She instanced evidence as to why the appellant no longer walked her dogs and evidence as to the nature of the medication the appellant took for her shoulder injury. Her Honour further identified alleged inconsistencies between the history taken by Mr O'Brien from the appellant and the evidence as a whole. Ultimately, her Honour accepted, however, that the deficiencies she identified in the appellant's evidence were due to an unfamiliarity with court proceedings and that the appellant was a credible witness. I take this to mean that her Honour accepted the appellant was a truthful witness, if not entirely reliable as to some incidental matters of detail. In my opinion, this view was plainly open and, on balance, correct.

17 Mr Gorton then turned to the trial judge's analysis of the evidence and pointed to a series of specific matters. It is sufficient for present purposes to refer to those matters upon which he placed most emphasis.

18 In [47] of her Reasons, her Honour stated in part:

• Both Ms Keith and Mr Shannon accepted the plaintiff injured her shoulder at work but considered the ongoing nature of the injury was due to the ageing process.

19 It was conceded by the respondent that this statement is incorrect. This was not the effect of the evidence of either Ms Keith or Mr Shannon. The medical evidence was that rotator cuff tendinopathy may result either from the aging process or injury,[4] but neither Ms Keith nor Mr Shannon went on to say that 'the ongoing nature of the injury was due to the aging process.'

20 At [48] her Honour next said: 'The only doctor to consider surgery was Mr John O'Brien.' It is plain that the appellant's treating orthopaedic surgeon, Mr Kolt, did consider surgery may be necessary and referred the appellant to Ms Keith for further consideration of that possibility because of her particular expertise with respect to shoulder surgery. In turn, Ms Keith reached the view that if the appellant's condition did not respond adequately to conservative management there was 'a reasonable indication to go ahead with surgery'. Mr Brearley, Mr Shannon and Mr O'Brien also expressed medico-legal opinions that decompression surgery may be appropriate.

21 I accept Mr Gorton's submission that the statement made at [48] does not accurately reflect the evidence and bears on a factor relevant to an assessment of the seriousness of the appellant's injury. It may be that, as Mr Wheelahan submitted, what her Honour intended to say was that only Mr O'Brien positively recommended surgery as immediately desirable for the appellant. The short point is, however, that, contrary to her Honour's summary, the overwhelming specialist medical opinion was that decompression surgery may become necessary.

1. The evidence as to pain was that the plaintiff told Mr Kolt the pain had diminished over time but not completely in mid-2010. In November 2010, she told Ms Keith that she suffered pain about the shoulder, which radiated to the elbow, and some night pain, and pain with elevation. Ms Keith repeated the injection and apart from a flare-up of symptoms, the pain settled.
2. In April 2011, Ms Keith reported that the plaintiff said the pain has 'settled down a lot'.

23 It is conceded by the respondent that unless [51] is understood to be no more than an amplification of the last paragraph of [50], it is also inaccurate. The evidence was that the severe flare up of pain due to the repeat injection of the shoulder had settled down, not the basal level of pain from which the appellant was suffering.

24 At [52] her Honour next summarised the complaints of pain made by the appellant to Mr Brearley, Mr O'Brien, Mr Shannon and Mr Jones. Her Honour further addressed the evidence as to the appellant's medication and found that the appellant took Tramadol in the morning and Panadeine Forte as required. Despite criticism of this finding on the basis that the appellant's oral evidence in re-examination was that she also took Tramadol in the afternoon, I accept that this finding was open to the trial judge having regard to the description of her medication given by the appellant in evidence in chief (by way of affidavit) and her description of such medication to Mr Brearley.

25 Her Honour then referred to the evidence concerning effects upon the appellant's capacity to work,[5] to sleep,[6] and to engage in both domestic and recreational activities.[7]

She complained that the pain restricted the performance of household duties; namely, cleaning the windows, heavy household chores and carrying heavy parcels. She employs a window cleaner and her partner assists with the heavier household tasks. She also said that her recreational activities were affected by the pain. She was unable to knit; she no longer swam, gardened, mowed the lawn or played tennis with her granddaughter. In cross-examination, the plaintiff agreed that no doctor had told her that she could not engage in these activities. Further, Mr Kolt said that he would encourage her to garden, swim and play tennis with her granddaughter so long as she did not smash the ball and provided that she engaged in these activities within the level of comfort that the shoulder gives. She said she no longer walked her dogs. It was unclear why she no longer walked her dogs, whether it was because they had to be on a lead and she did not like walking with a lead, or whether it was because her son walked the dogs, or whether it was because of the injury to her shoulder.

27 Mr Kolt's evidence was that when he saw the appellant in 2010 he would have recommended the appellant perform daily activities such as walking the dog, driving the car, domestic chores and recreational activities such as swimming, gardening and tennis 'within the level of comfort that the shoulder gives, without putting any formal restrictions on.' In turn, the appellant's evidence was that she abstained from a number of these activities and, in particular, some domestic tasks and swimming because of apprehended pain. Ultimately, as I have already indicated, her Honour further concluded at [62]: '[the appellant] has retained the ability to engage in moderate physical activity such as swimming and playing tennis with her granddaughter ...'.

28 Mr Gorton submits, and I accept, that the trial judge's findings in this latter respect overstate the effect of the evidence. Mr Kolt did not say that the appellant has retained the ability to engage in moderate physical activities such as swimming and playing tennis, but rather that he would recommend she continue such activities subject to any restriction consequent upon pain. His opinion implicitly recognised that the appellant might be precluded by pain from engaging in such activities and the appellant's evidence was that she is so precluded. She has ceased activities such as swimming and walking her dogs because of apprehended pain.

29 It follows that I accept the trial judge's Reasons demonstrate that she misapprehended the effect of the evidence in four material respects. First, it was not the view of Ms Keith and Mr Shannon that the ongoing nature of the injury was due to the aging process. Secondly, Mr O'Brien was not the only doctor to consider surgery. Thirdly, Ms Keith did not report that the plaintiff's overall level of pain had settled down a lot in April 2011. Fourthly, the evidence did not support the conclusion that the appellant has retained the ability to engage in moderate activities such as swimming and playing tennis with her grandchildren. Although one or other of these matters might perhaps be explained away, I further accept that taken together they justify the conclusion her Honour failed to take into account relevant considerations or took into account irrelevant considerations and accordingly her decision is vitiated by specific error.

30 The parties agree that the issue at trial was whether the consequences of the appellant's injury met the test of seriousness for pain and suffering, in that they could be considered to be 'more significant or marked and as being at least very considerable'. This involved consideration of:

(a) the nature of the injury to her right shoulder incurred by the appellant in the fall at her workplace on 24 February 2009;

(b) the extent to which the appellant had, after suffering injury, returned to her pre-injury duties and the nature of consequent workplace restrictions/modifications in her duties;

(c) the assessment of the consequences of the claimed injury including the level of ongoing pain suffered by the appellant; and

(d) the assessment of the level of restriction in activities of daily living, recreation and domestic tasks suffered by the appellant as a consequence of the injury.

31 Ground 1 of the notice of appeal initially states:

Having found:-

(a) that the Plaintiff was a credible witness and impressed Her Honour as a hardworking woman [45];

(b) that the Plaintiff suffered a compensable injury arising out of or in the course of her employment with the Defendant [46];

(c) the injury was a right shoulder injury, described as a partial thickness articulated sided tear of the supraspinatus, with associated subacromial bursitis, and with evidence of tendinopathy [47];

(d) the Plaintiff suffered pain about the shoulder, which radiated to the elbow, and some night pain and pain with elevation [50];

(e) the Plaintiff suffered constant pain of variable intensity in the shoulder akin to toothache [52];

(f) no doctor suggested in any way that the Plaintiff exaggerated her position [53];

(g) that the Plaintiff took Tramadol in the morning and Panadeine Forte as required [54];

(h) that the Plaintiff was "stoical" and that it was to her credit that she had continued working [55];

(i) that the Plaintiff said her sleep was affected [56];

(j) that the Plaintiff was restricted in the performance of household duties, namely cleaning the windows, heavy household chores and carrying heavy parcels [57];

(k) that her recreational activities were affected by pain in that she was unable to knit, she no longer swam, gardened, mowed the lawn or played tennis with her granddaughter [57]:-

the learned trial Judge erred:-

(i) in that she failed to take into account, or give any, or any sufficient weight, to the above relevant considerations;[8]

32 I accept that the matters referred to tend to support the conclusion that the appellant suffered serious injury. Ultimately, however, there are, to my mind, four critical considerations which emerge from the evidence and govern the ultimate assessment of the seriousness of the appellant's injury:

(a) the extent to which the appellant has retained substantially normal function in her right arm;

(b) the continuing capacity of the appellant to work;

(c) the ongoing nature and extent of the pain suffered by the appellant; and

(d) the consequent limitations upon the appellant's enjoyment of life.

33 For the reasons I shall explain below, whilst the first two factors tend to support the decision of the trial judge and are substantially explanatory of that decision, I have reached a different view to her Honour substantially because of the last two factors and, in particular, the evidence as to the extent and nature of the appellant's ongoing pain.

34 First, however, it must be acknowledged that the evidence of the appellant's treating doctors supports the view the appellant has retained quite substantial normal function in her right arm.

35 Mr J Kolt, an orthopaedic surgeon, examined the appellant twice in mid-2010 at the request of her general practitioner. He found that the plaintiff had an 'extremely functional' shoulder. He arranged for her to have ultrasound guided cortisone injections in her shoulder. The appellant suffered a flare-up of symptoms after this treatment. Mr Kolt also referred the appellant to Ms P Keith to investigate the possibility of an arthroscope. His referral stated the appellant's shoulder was:

...quite functional and all elements of the rotator cuff are generating 5/5 power without pain. Impingement signs have been only mildly positive.

36 Ms Keith examined the appellant in November 2010 and reported back to Mr Kolt. Ms Keith said the appellant had no significant palpable or visible wasting about the right shoulder, but had quite a lot of scapular thoracic dysrhythmia and hitched the shoulder somewhat in elevation. The appellant had a near full range of combined active elevation and abduction of the shoulder. Ms Keith further said the appellant had some degree of glenohumeral capsular stiffness which was mild, and also had significant irritability of the supraspinatus tendon on testing, with only a 3/5 power rating. This was a substantially less satisfactory finding than that previously made by Mr Kolt. It reflected a painful and weak shoulder. Ms Keith said the remainder of the cuff appeared to be reasonably normal. It was her opinion that the appellant could come to surgery but would benefit from a further cortisone injection. She referred the appellant for a MRI scan.

37 In December 2010, after reviewing the MRI results, Ms Keith said:

There is no doubt, some evidence of rotator cuff disease through, particularly the supraspinatus tendon, which is one of the elevator tendons of the shoulder and this is an incomplete tear and is often seen as part of rotator cuff

tendinopathy, which is part of the aging process, occasionally we can see this also with injury.

38 Ms Keith recommended conservative management and expressed reluctance to operate unless this truly failed. In a letter to the appellant, Ms Keith went on to say:

However, if you do not respond to the conservative management, then there is a reasonable indication to go ahead with the surgery, which we would likely perform through keyhole or mini open incisions and would involve removing a small amount of bone from the front of the shoulder called the acromion and completing part of the tear in the shoulder so that we could fully repair it. Sometimes, injury tips the balance between normal aging process and the injurious event and you have to realise that we have to try everything first before we can subject you to a major surgical procedure. This is because you will be six weeks in a sling and you will have a substantial rehabilitation program following that, which will take a lot of time out of your life and be a reasonable preoccupation for some time, in that we would prefer to see how you go with other treatments first.

39 In April 2011, Ms Keith further reported to Mr Kolt that after the appellant had a repeat cortisone injection into her shoulder, the appellant suffered a flare-up of symptoms which was quite severe but then settled. In evidence, the appellant described the pain associated with the flare-up as excruciating. It was nevertheless Ms Keith's view that the right shoulder, although symptomatic, was quite functional for most activities of daily living. She said that rotator cuff disease is a 'pretty chronic condition' and the only indication for surgery would be if the plaintiff was unable to manage it conservatively.

40 In April 2011, a physiotherapist to whom the appellant had been referred reported back to Ms Keith:

Patricia has nearly achieved full range of movement and her strength is improving with time. We will continue to work with Patricia in a rehabilitation process and will contact you if any problems arise.

41 In June 2011, Ms Keith reported to Mr Kolt that the appellant had raised further questions about surgery. Ms Keith's advice was that surgery should only be performed if the appellant had significant pain and her activities of living were impaired.

42 In summary, it can been seen that although the appellant's treating surgeons confidently diagnosed a rotator cuff injury their view was that the appellant's right shoulder was quite functional for most activities of daily living. On the other hand, the treating surgeons accepted that the appellant's account of her symptoms (to which I shall return) was entirely genuine. Moreover, they expressly recognised that if conservative treatment failed the injury might result in an ongoing level of significant pain and impairment of activity sufficient to justify surgical intervention. This view is also corroborated by the medico-legal opinions of Mr Brearley, Mr O'Brien and Mr Shannon.

43 I turn then to the second significant factor bearing on the assessment of the seriousness of the appellant's injury. This is the fact that, but for some days off for the purpose of obtaining medical treatment, she has effectively continued working fulltime as a process worker despite the injury. In so doing, she has, however, suffered a limitation in the range of activities she can undertake and, in particular, she has not been able to multi-skill because she cannot reach overhead.

44 The third factor of significance is the evidence as to the appellant's ongoing pain level. Once it is accepted that the appellant was a truthful witness and that it is plain from her continuing work history that she is, as the trial judge found, 'stoical' there is no reason to reject her ongoing descriptions of the pain suffered by her. The appellant has given a consistent history of continuing pain. The difficulties which she has experienced have worsened to some extent. In particular, the history taken and the observations made on examination by Ms Keith reflect an increased level of daily pain (and in particular night pain) compared with that recorded by Mr Kolt and also a greater limitation in movement resulting from pain on examination.

45 By July 2011, the appellant described her pain to Mr Brearley and Mr O'Brien as constant pain of variable intensity in the shoulder. She told Mr O'Brien that the pain was aggravated by movement of the right shoulder, particularly elevation of the arm or reaching forward, or any pulling type activity. Activities such as holding a dryer to blow-dry her hair were extremely painful and difficult, as was carrying any weight, such as shopping. In addition, her sleep continued to be disturbed by night pain. She described the pain in her shoulder to Mr Shannon as being like a toothache. She exemplified painful difficulties in moving her shoulder by reference in particular to overhead activities such as doing her hair and activities such as doing up her bra. She said she avoided driving because it aggravated the shoulder and she had difficulty gardening and shopping as well as caring for her grandchildren. In my view, these histories paint a consistent picture of both underlying pain and aggravation of that pain by any activity that places stress on the appellant's shoulder.

46 In oral evidence at trial, the appellant confirmed that she managed the pain in her shoulder with analgesics, taking both Tramadol and Panadeine Forte painkillers on a daily basis. This medication settled, but did not remove, her constant pain. She confirmed that the cortisone injections she had been given had not helped her. Nor did the physiotherapy she received reduce the pain she suffers.

47 Insofar as restrictions of activities are concerned, the appellant gave evidence at trial consistent with the histories she gave to the medico-legal doctors. In particular, she said she could no longer do household tasks such as hanging out the washing and cleaning windows. She was no longer able to engage in recreational activities such as walking the dogs or swimming. As I have said, a consistent picture emerges that the appellant is materially affected by pain and the apprehension of pain in a wide range of activities which she undertakes in her daily life.

48 In 2011, the appellant travelled to England for a month and when she returned she discussed the appropriateness of surgery with Ms Keith. In response to Ms Keith's cautious advice to which I have already referred, the appellant ultimately reached the view that she should have surgery because of the degree of pain she was suffering and the way her quality of life was affected. She had not had the operation by the date of trial because she had been advised to put it off until after her litigation. Nevertheless, there is no reason not to conclude that by the time the matter came to trial the appellant had reached the point surgery was required.

49 The trial judge accepted that the appellant's injury had had 'a notable effect on her life'. I respectfully agree. In my view, the appellant is not to be punished for her continuing application to work and her stoical attitude in the face of pain. This attitude was reflected by her evidence in cross-examination in which she agreed that she continued to function but said 'you function don't you in life. You go on. It's not to say I still don't have pain there.'

50 I accept that, as at the date of trial, the appellant had suffered continuing pain since her injury nearly three years earlier. The pain had not responded to conservative treatment, including cortisone injections or to physiotherapy. It was constant and required daily analgesic medication. It increased with any activity which placed stress upon her shoulder. It had reached the point that surgery was warranted. It materially inhibited the appellant in her daily activities domestically and recreationally. The surgical treatment which was warranted involved a substantial rehabilitation program which, as Ms Keith said, would take a lot of time out of the appellant's life and preoccupy her for some time.

51 In my view, the pain and suffering consequences of the injury can fairly be described as being more than significant or marked and being at least very considerable.

52 I would allow the appeal and grant leave pursuant to s 134AB of the Accident Compensation Act 1985 to the appellant to commence proceedings in respect of the injury to her shoulder suffered on 24 February 2009.

[1] Accident Compensation Act 1985, s 134AB(38)(b) and (c).

[2] [2010] VSCA 69, [11]-[16].

[3] Halpin v Wilson Transformer Company Pty Ltd [2011] VCC 1513 ('reasons'), [59], [62], [64] and [65] (emphasis supplied).

[4] Mr Jones's report also states that attrition in the rotator cuff tendons is almost universal with continued aging and renders them susceptible to injury.