Leong v Simplot Australia Pty Ltd [2013] VCC 142

3 In his first affidavit sworn on 8 July 2010, the plaintiff deposed that:

• He lived alone and had difficulty with housework such as heavier cleaning work. He said that if he drove "too far I get an increase in shoulder pain and turning the steering wheel too much aggravates the pain. Even sitting at the computer and using a keyboard causes shoulder pain and this sometimes extends up into my neck. I am right hand dominant".
• Before his injury, he had commenced to play golf and also "enjoyed a social game of tennis and badminton". He said that he also enjoyed occasionally playing ten-pin bowling, but he could not undertake any of those activities by reason of his injuries.
• He was a practising Christian and that in the course of worshipping, it was common to sing hymns and to clap his hands. He described his ability to do this as being restricted.
• His work options and earning capacity was limited by reason of the impairment in function of his left and right shoulder.

4 In a further affidavit sworn on 14 February 2012, the plaintiff deposed that:

• He suffered from constant pain in his left shoulder which was more noticeable when using his left arm and extending it either out or upwards. He said he could not carry heavy weights in his left arm and that he suffered occasional numbness and pins and needles.
• He suffered from right shoulder pain which, whilst not as constant as the symptoms in his left shoulder, was "equally noticeable when I'm using my right arm".
• He was living in China and was restricted in his work by an inability to sit for long periods in front of a computer, as that activity caused him to experience significant left shoulder pain.
• He was involved in missionary work with the Crossway Baptist Church in China. He said that his left shoulder could pose restrictions for him in that work; for example, if he were required to help people carry their shopping or furnish their apartments. He described the need to take occasional sleeping tablets by reason of the presence of pain in his shoulders and said that his pain "is often a nagging pain and it limits me in the activities I can carry out. I find this particularly frustrating".
• He continued to be restricted in his ability to engage in sport or vigorous activity.

**5 The plaintiff gave viva voce evidence in the course of the application and was cross-examined.

6 In the course of his evidence, the plaintiff said:**

• He employed medication in the form of Sandoz on approximately two occasions a month and antihistamine medication two or three times a week to assist him to sleep. He said that these medications were necessary by reason of "the stress that is caused by the pain".
• By reason of the condition in his shoulders, he found it difficult to use both his hands for activities such as changing light globes, putting things at high places in cupboards, vacuuming and gardening. He said that he lived on the sixth storey of an apartment block in China which was not serviced by a lift; that he was required to carry 15 to 20-litre tubs of drinking water up to his apartment; that he found activities such as this difficult, and that such activity, which he could not avoid, tended to aggravate his symptoms. He said that his symptoms were aggravated by activities such as carrying shopping bags and luggage up the steps to his apartment, "So I usually ask my wife, but she's not strong. As you can see, she's skinny so we have a lot of difficulty in trying to get these things done."
• He resigned from his employment with the defendant in June 2010 by reason of the combination of his wish to undertake missionary work in China and also by reason of the fact that he had difficulty meeting performance reviews by reason of his injury.
• In China he was employed on a part-time basis by a human resources company which employed him to consult on projects such as the implementation of quality control systems. He also undertook missionary work which involved helping people both in their physical and spiritual life. He described the impact of his symptoms upon the physical aspect of his charity work in the following terms:

"If they're poor or if they need help a lot of times we have - I mean this stuff, you know, you have to help them with doing their house chores. But with my condition, now this I could not do that. This limits this physical helping part because of my injuries."

• In the course of his employment with the defendant, his duties had required him to handle goods, push trolleys, lift sample boxes and travel, and that his inability to manage these activities efficiently had caused stress upon his colleagues and himself.

7 The impression which I formed of the plaintiff as he gave his evidence was that he was not inclined to either exaggerate or embellish the consequences to him of the impairment the subject of this application. I am satisfied, taking into account both the plaintiff's evidence and the medical evidence in the matter, that the plaintiff presented as a truthful and reliable witness.

The Medical Evidence Relied on by the Plaintiff

**8 In a report dated 10 August 2009, Mr Nigel Broughton, orthopaedic surgeon, states that having consulted the plaintiff on 20 May 2008, he diagnosed the plaintiff as presenting with a full-thickness tear of the supraspinatus tendon, in respect of which he operated on 6 October 2008. Mr Broughton thereafter reviewed the plaintiff on a number of occasions, in the course of which the plaintiff complained to Mr Broughton of continuing symptoms. When he was last seen by Mr Broughton on 1 June 2009, at which time the plaintiff reported:

(i) the presence of ongoing problems with numbness in the little and ring fingers of the left arm;

(ii) that he had developed symptoms in his right shoulder as a result of favouring his left shoulder;

an ultrasound undertaken at that time revealed a full-thickness tear of the supraspinatus tendon of the right shoulder, and Mr Broughton opined:

(i) that the surgery to the left shoulder had not been successful, the repair having broken down;

(ii) that the plaintiff would have continuing problems with his left shoulder;

(iii) that the plaintiff had developed an ulnar nerve lesion on the left side as a direct result of the injury to the shoulder and the complications associated with the surgery.

(iv) that the plaintiff had developed problems in his right shoulder, which Mr Broughton commented as being ─**

"...understandable as he has been favouring the left shoulder for so long that, during the normal course of activities, he has developed pain and symptoms of the right shoulder, which has been clearly shown by investigations due to a full thickness tear of the supraspinatus. I think in a 40 year old man with a full thickness tear of the rotator cuff this is unlikely to heal or settle so that he has no symptoms. It is more likely to gradually deteriorate with time and the tendon tear becomes bigger and more difficult to repair and get a more successful outcome. I have, therefore, recommended that he have a repair of the full thickness tear of his right shoulder supraspinatus."

**9 In a report dated 31 July 2009, Mr Christopher Pullen, orthopaedic surgeon, states that he first saw the plaintiff at the referral of his general practitioner on 10 June 2009. At that time, Mr Pullen was provided with a number of radiology reports which indicated:

(i) that the plaintiff had suffered a re-tear of the operated left supraspinatus tendon over a 2.5 centimetre area;

(ii) that the plaintiff was presenting with a small full-thickness tear of the critical zone region of the supraspinatus tendon of the right shoulder;

(iii) that nerve conduction studies were consistent as showing an extremely mild ulnar nerve lesion at or around the elbow on the left side.

10 As at 10 June 2009, Mr Pullen opined that the plaintiff was suffering from dual pathology in his left shoulder in the form of post-surgical adhesive capsulitis indicative of the recurrent tear of his rotator cuff. In addition, he expressed the opinion that the plaintiff had most likely developed a rotator cuff tear in his right shoulder which he stated as being possibly secondary to over-use whilst convalescing from his chronic left shoulder problems. He opined that whilst the plaintiff should consider the possibility of a rotator cuff repair to the right shoulder, he ran the risk of developing adhesive capsulitis in the right shoulder if surgery was undertaken.

11 On 6 October 2009, Mr Pullen performed a manipulation under anaesthetic of the plaintiff's left shoulder. When reviewing the plaintiff on 21 October 2009, Mr Pullen noted that whilst forward flexion of the shoulder had improved since the manipulation, abduction was still difficult and the plaintiff was presenting with pain in the region of his AC joint.

12 On 2 December 2009, Mr Pullen reviewed the plaintiff, who informed him that whilst he had achieved some improvement in his left shoulder following the manipulation under anaesthetic and physiotherapy, he felt that this position had now plateaued.

13 On 25 February 2010, the plaintiff was reviewed by Mr Pullen, who at that time was provided with an MRI of the right shoulder which revealed the presence of a significant deficiency in the supraspinatus tendon at its humeral attachment.

14 In March 2010, Mr Pullen reviewed the plaintiff for the purpose of discussing the results of his right shoulder scan and the possibility of the plaintiff undergoing a right shoulder arthroscopy and rotator cuff repair. At that consultation, the plaintiff described the presence of continuing symptoms in his left shoulder, including ongoing stiffness. In an attempt to treat those symptoms, the plaintiff underwent a left shoulder hydrodilatation.

15 Mr Pullen opined, as at the time of his last examination of the plaintiff on 26 March 2010, that, whilst there was hope that the hydrodilatation would result in an improvement in the plaintiff's symptoms such that his level of movement would improve, it was unlikely that he would regain a normal range of movement in his shoulder and that he would suffer from reduced shoulder strength on the left side. With respect to the right shoulder, he opined that it was likely that the plaintiff would have ongoing issues with shoulder pain on the right side and that surgery to the right side ran the risk of being complicated by the development of a frozen shoulder.

16 Mr Stanley Schofield, orthopaedic surgeon, examined the plaintiff on 26 January 2012. He opined at that time that both of the plaintiff's shoulders were causing difficulty by reason of restricted movement, that the precise organic injury suffered by the plaintiff was a rotator cuff injury, initially to the left shoulder and then to the right shoulder, with overuse due to problems continuing with the left shoulder, and that he was not at that time able to opine as to whether the plaintiff's current symptoms were likely to continue into the foreseeable future.

17 In a further report dated 6 March 2012, Mr Schofield opined:

(i) that scans undertaken of the left and right shoulder revealed the presence of pathology affecting each shoulder joint;

(ii) that for the foreseeable future the plaintiff should persist with conservative treatment as it was difficult to predict whether surgery would be advantageous;

(iii) that the plaintiff was not fit to resume his previous occupation but would be able to work in a sedentary position;

(iv) that the prognosis for each of the plaintiff's shoulders remained guarded; and

(v) that the plaintiff "may always have some restriction of movement especially with overhead work. It remains my opinion that his condition has stabilised".

18 Mr Peter Kudelka, orthopaedic surgeon, examined the plaintiff on 27 March 2009. He described the plaintiff's presentation at that time as involving pain, weakness and restriction of function of the left shoulder, and commented that there was no sign of functional overlay or exaggeration in the plaintiff's presentation. He opined at that time that the plaintiff's prognosis, with conservative treatment, was favourable and that his medical condition would gradually improve.

19 In a report dated 28 May 2009, Mr Kudelka opined that the symptoms in the plaintiff's right shoulder were not work-related.

20 Mr Kudelka examined the plaintiff on 7 February 2012. At that time, he opined that the short and long-term prognosis in relation to both the plaintiff's shoulders would be one involving some pain, weakness and restriction of movement, particularly in movements at or above shoulder level, the left shoulder symptoms being more significant than the right shoulder symptoms. He commented that, in his opinion, a point of stability had been reached and that the issue as to whether the plaintiff's right shoulder symptoms should be accepted as work related was a matter for the insurer. Mr Kudelka commented that he could not relate the plaintiff's right shoulder symptoms to "any incident at work".

21 He opined that the plaintiff's condition affected his ability to carry weights and do repetitive manual work, particularly at or above shoulder level. He described the plaintiff as having developed a psychological overlay requiring advice because of his shoulder symptoms, and commented:

(i) that the plaintiff had a permanent incapacity with respect to the left shoulder for physically demanding employment;

(ii) that the plaintiff could work full time with avoidance of the use of the left shoulder at or above shoulder level with weights in excess of two to five kilograms;

(iii) that the plaintiff's impairment and reduced capacity was probably permanent;

(iv) that the plaintiff would be required to manage his condition by recourse to palliative treatment, a self-managed exercise program, the application of liniment, the avoidance of extreme physical activity, particularly in moving his arm to either side or at or above the horizontal.

22 On 7 January 2010, a Medical Panel convened to respond to a referral of the plaintiff by a conciliation officer. The Panel opined that the plaintiff was suffering from a rotator cuff tear of the right shoulder, which condition was materially contributed to by his left shoulder injury.**

**23 Mr Kudelka is the only medical witness to opine that the plaintiff presents with a psychological overlay. His justification for making this statement is unclear and I do not find the statement to be persuasive given the balance of the medical opinion in the matter.

24 I am satisfied, having regard to the medical evidence to which I have referred, that the plaintiff's right shoulder injury arose by reason of the plaintiff's practice of favouring his left shoulder. In making this finding, I rely upon the opinion of :

25 In these circumstances, in assessing the consequences to the plaintiff by reason of the impairment of function of his left shoulder, I am satisfied that I should take into account, as a consequence of the plaintiff's left shoulder injury, the pain, restriction of movement and disability occasioned to the plaintiff by reason of the condition in his right shoulder.

26 The plaintiff is forty-five years of age. I am satisfied that he will, for the rest of his life, suffer symptoms in both of his shoulders which will probably manifest themselves in the form of pain, weakness and restriction of movement, particularly in movement of the arms to either side or above the horizontal;[1] that these symptoms will be a constant feature of his life, in that he will be required to be watchful as to both movement and activity in which he engaged in order to avoid activity-related aggravation of the condition in both his shoulders.

27 I accept the plaintiff's evidence that his symptoms are aggravated by any activity which places modest pressure upon his shoulders such as working at a computer for substantial periods of time; or activities as routine as carrying loads of shopping, playing golf or tennis or handling items of modest weight. That a relatively young man will, for the foreseeable future, be so precluded in my opinion gives rise to consequences which are appropriately described as being "very considerable".

28 I am satisfied that the plaintiff's current residence on the sixth floor of a block of apartments in China, which is not serviced by a lift, exposes the plaintiff to regular aggravation of his symptoms in association with his need to move items such as water manually up and down the stairs to his apartment and that this is likely to remain a feature of his life for so long as he is required to undertake this or similar activity. In this respect, I am cognisant of the plaintiff's evidence that generally apartment buildings in China which are not high rise are not serviced by lifts.

• That the plaintiff's symptoms restrict him in his ability to engage in most forms of physical activity in which he might be called upon to undertake in his charity work and that they adversely impact upon his ability to participate and enjoy the church services which he attends;

• That everyday activities as simple as changing light bulbs, placing items in cupboards and vacuum cleaning aggravate the plaintiff's symptoms and that these restrictions have a deleterious impact upon his life;[2]

• That the condition in the plaintiff's shoulders was a factor in the plaintiff's resignation from his employment with the defendant and that the plaintiff is precluded permanently from any employment which involves repetitive lifting, or movement of his arms above shoulder height, or working for long periods of time at a computer terminal; and that the combination of these restrictions is likely to give rise to a real restriction in the labour market available to the plaintiff;

• That the plaintiff's pain interferes with his sleep to a modest degree such that he frequently employs antihistamines and occasionally employs prescription-strength sleeping pills to assist him to sleep.

30 In my opinion, the symptoms of pain and restriction in activity described by the plaintiff in his evidence, when considered in the context that they visited upon a relatively young man and are permanent in nature, constitute consequences which are appropriately described as being more than marked or significant and as being very considerable.

31 For these reasons, I am satisfied that the plaintiff is entitled to the leave which he seeks in this application.

32 I will hear the parties as to the precise form of the order which should be made in this matter and also upon the issue of costs.

[1] See the statement of Mr Kudelka to this effect at DCB 16

1. [2] In making this comment, I reject the submission made on behalf of the first defendant that the plaintiff's inability to undertake the activities about his home was inconsequential by reason of the fact that he has access to domestic help which can be secured by "low rates of pay" in China where he now lives.