Fetu v Northern Iron and Brass Foundry P/L [2013] QDC 330

DISTRICT COURT OF QUEENSLAND CITATION: Fetu v Northern Iron and Brass Foundry P/L [2013] QDC 330 PARTIES: SAMUELA FETU (Plaintiff) v NORTHERN IRON AND BRASS FOUNDRY PTY LTD ACN 078 991 803 (Defendant) FILE NO/S: DIS 1092/11 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 20 December 2013 DELIVERED AT: Brisbane HEARING DATE: 26-30 August; 13-15 November 2013 (8 days) JUDGE: Ryrie DCJ ORDER: 1. Judgment for the Plaintiff in the sum of $110,865.12 2. The parties to provide written submissions as to costs 28 days from the date of publication of this judgment unless the parties otherwise agree. CATCHWORDS: TORT - NEGLIGENCE – BREACH OF DUTY -WORK PLACE INJURY – Where injury is alleged to have occurred to the Plaintiff in the course of his employment whilst working on a hoist in a priming booth – Whether such an injury occurred - Whether Defendant as employer is liable for that injury – Whether Plaintiff contributed to his injury – Whether Plaintiff failed to mitigate his own loss TORT – NEGLIGENCE – QUANTUM – GENERAL DAMAGES – SPECIAL DAMAGES – PAST AND FUTURE ECONOMIC LOSS - Where Plaintiff claims damages for personal injury and loss and damage caused by the negligence of the Defendant – Whether damages should be awarded -- 1 of 42 -- 2 ss37A and 197 Workplace Health and Safety Act 1995 (Qld) Farrell v Qld Newspapers Lty Ltd [1998] QCA 18 Pitsiavas v John Lysaght (Aust.) Pty Ltd [1962] NSWR 1500 Quintano v Cable Makers of Australia Pty Ltd [1966] 2 NSWR 496 Suncorp Metway Insurance Ltd v Kilner [2013] QCA 42 COUNSEL: K Roche (for the Plaintiff) R Myers (for the Defendant) SOLICITORS: Nathan Lawyers (for the Plaintiff) Gadens Lawyers (For the Defendant) Introduction [1] Mr Fetu (‘the plaintiff’) alleges that he suffered injury while working for the defendant on or about the 14th of February 2008 as a result of the negligence of the defendant. He claims damages from the defendant for personal injuries and consequential loss arising from that negligence. The defendant denies that the plaintiff suffered any injury at all or if he did, that it was caused by any negligence on the part of the defendant. The defendant also denies that the plaintiff suffered any of the consequences as pleaded. The defendant also says that even if the plaintiff did in fact suffer any injury as alleged, then he contributed to his own injury or failed to mitigate his loss. [2] The action has been pleaded in contract, tort and breach of statutory duty. Both parties accepted that it was convenient to refer only to the cause of action in tort as there was no real difference between the two causes of action as it related to contract or in tort. The parties also accepted that there was no right to a cause of action as it related to a breach of statutory duty in light of ss37A and s197 Workplace Health and Safety Act 1995. Rather, any breach may simply be relied as a ground to support any claim in negligence. The Pleadings [3] The pleadings reveal that the plaintiff alleges that he was injured in the course of his employment while working in a priming booth. That work required him to use a hoist to lift pipes and other product into position in order that they could then be spray painted. A remote control was used to activate the hoist in order to lift any such item. It is the plaintiff’s case that the hoist and/or remote was defective in that he was required to exert repetitive pressure on the remote button in order to elicit a response. The plaintiff alleges that on the day he was injured, he had pressed the remote several times before the hoist unexpectedly jerked upwards causing his shoulder to overextend at which time his shoulder was injured. [4] The defendant denies that there was any defect with the hoist and/or remote in question as alleged or that the plaintiff suffered any injury at all as a result of any workplace negligence on the part of the employer. -- 2 of 42 -- 3 Liability The plaintiff’s evidence [5] The plaintiff required the full assistance of an interpreter at trial as he could not sufficiently understand or speak the English language. That was also my impression of him during the time I observed him giving his evidence. It was also my impression that he had difficulty in answering questions that were being put to him by both counsel during the course of his evidence, even though it was being interpreted for him. His presentation during the course of his evidence can be best described as a simple man who appeared both flat and unemotional. [6] The plaintiff was born in 1958 in Samoa where he was educated until year 5. He came to live in Australia in 1999. He continued to do the same type of work in Australia which he had done in Samoa, namely labouring type jobs. He commenced working at the defendant’s premises in 2006 as a machine operator. He stopped working there in 2009. His normal working hours were generally from 6am to 3pm. It is not contested that his usual working hours each day were 7.60 hours. His main duties that he would undertake as a machine operator usually required him to work in the priming booth. He was shown a sketch (ex 142) which he had previously drawn. He gave a general account of the system of work which he would usually undertake when working in the priming booth by reference to that diagram. [7] When asked by his counsel about what happened on the day he was injured (T1-95), the plaintiff said he was working on the number 1 hoist in the priming booth area. He said that he went to report that the hook on hoist number 1 wasn’t working to his supervisor Mr Parmenter (‘Shane’) who told him to go and work at number 2 hoist. He said that he had then gone back to work on that hoist but it broke down so he went back to Shane. He said that Shane had then told him to go back to work on the number 1 hoist which he did. When asked to explain to the court what happened next, the plaintiff replied: ‘I lifted the pipe up, pressed the remote but it wasn’t working. Another time when I pressed it, it would work. Came back and used the spray. I came to the remote and pressed it, it wasn’t working. I pressed it again, it wasn’t working. I pressed it again and it jumped up all of a sudden and it took my hand with it’ (T1-97). [8] He described in evidence that after the pipe had jumped up he felt his hand was hurting so he went and reported that to Shane who told him to go and rest for 10 minutes. After his rest he stated that Shane then told him to go back to work in the priming booth. He stated during cross examination that he then went back to see Shane again and told him that his shoulder was very painful, at which time he was told to go home and come back the following day so they could go and see the doctor (Dr Cherian, Inala Medical Centre) (T2-41). -- 3 of 42 -- 4 [9] The plaintiff stated that he went back to work the day after he was injured. On that day, which he described as the second day, he stated he didn’t go to work because Shane had told him to come back the following day so they could go to the doctor (T1-98). The plaintiff gave evidence that he then went to the doctor for the workplace in Inala (Dr Cherian). There is no dispute that the plaintiff was taken to the Doctor by Mr Parmenter on the 14th February 2008. He stated that he believed that the doctor gave him 2 weeks off from work (T1-100). He stated during cross examination that Shane spoke to the doctor (T3-111). He stated he then had tried to return to work but that he had continued to suffer difficulties with his left shoulder. He stated he couldn’t do anything (T1-100). He stated during cross examination, that at the time when he was injured, he did not touch the remote again (T2-28). He stated during his evidence that he continued to work elsewhere on site during the period subsequent leading up to him finally finishing work with the defendant in October 2009, in that he ‘did something else from four to six hours again’ (T2- 29). [10] During the course of cross examination, the plaintiff again was asked to explain how he got injured. (T2-24) He confirmed that there were times when the remote simply did not work at all even after he had pressed it. He did not agree with the proposition put to him that once the remote had activated that the lift would then go up at exactly the one speed even though he had earlier agreed that it did (T2-24). The plaintiff consistently stated however that there were times that when it was pressed or activated that it would go slowly but ‘this time I had pressed it a few times and it went off very quickly, very fast’ (T2-25). [11] He denied that he had never told Shane about the injury having occurred at work (T2-43) either on the 13th February or the 14th February 2008, the latter being the day they both had gone to see the doctor (Dr Cherian), or at any other time. He also gave evidence that he didn’t know that there was an incident report to be done personally by him as he had reported it to Shane (T2-51). That evidence is consistent with the evidence which Mr Parmenter gave, who was the plaintiff’s foreman at the time. Mr Parmenter confirmed that it was his responsibility if a worker reports an injury at work, to fill in an incident report form. This was not done even after Mr Parmenter had taken the plaintiff to Dr Cherian on the 14th February 2008 even though Dr Cherian had certified the plaintiff as having suffered a work related injury which he noted during his consultation had occurred at work the day before (ex 6 p 22 and ex 11 p 70). An examination of other incident reports tendered (ex 4, 5 p 17-19) also show that it is the employer that has filled out the incident report form in any event; the responsibility of which lies with the employer as confirmed by Mr Bolton. It is also not surprising that this practice was adopted in respect of the plaintiff in any event given the plaintiff’s lack of written English or ability to speak the English language. [12] The plaintiff was shown a workplace practice DVD (ex 146) during cross examination which showed another worker carrying out similar work in the priming booth, presumably on the replacement hoist. It was not in issue that both hoists which had originally been situated in the priming booth at the time of the plaintiff’s alleged injury on or about 14th February 2008, were subsequently replaced with a different model of hoist (Toku) in March 2008. During the viewing of that DVD, the plaintiff pointed out the point when he said he was injured (ex 151 – a still photograph of that point in the DVD was then reproduced and tendered) (T3-64). He described having to put the hook on to the pipe in order to lift it up to that point (which had earlier been stationary on the pallet prior to being lifted to that position). -- 4 of 42 -- 5 He was asked was it at that point at which he said he was injured. The plaintiff gave the following answer: ‘Yes, when I pressed it, it didn’t go and then I pressed it again and that’s when it sort of went and took off.’ (T3-65) [13] When asked again about this issue again a little later, the plaintiff gave more detailed evidence (T3-112). He stated that when he had attempted to lift the pipe from the pallet, he had pressed it (the remote), it came, and then it stopped. He stated that he pressed it again, and it didn’t go. He stated at that point the pipe was still resting on the pallet. Then he pressed the remote, and it moved a little bit. And then he tried pressing it again but it didn’t go. He could not remember how high the pipe had been lifted in relation to the pallet at that point. He stated that he left the pipe suspended in the air above the pallet when he went to speak to Shane, about 9.30am in the morning. He stated that Shane returned to look at it, tried to press the remote to make the pipe come down which did in fact eventually come down however he was sent to work on the other remote (presumably number 2 hoist in the same area) because the number 1 remote wouldn’t work to lift the pipe to proceed with spraying and baking. He initially stated that he had then continued to work there until ‘it was finish time’ (T3-113). A little later in his evidence however, he indicated that when he was working at the number 2 hoist, he didn’t work there for the rest of the day, as he had gone home at about 11.30am after telling Shane his shoulder was very painful (T3-125). [14] The plaintiff confirmed that the weight in the DVD being lifted was similar but that the one he was lifting on the day he was injured was 350 kg heavy in weight and that the hoist which he was operating that day could lift that weight if required (T3- 110). He also gave evidence that both hoists situated in the priming booth were the same but that he didn’t know what make or model they were (T1-99). Mr Bolton on the other hand did not believe that the hoists situated in the priming booth at that time were capable of lifting that weight as the chain to the oven could not take that load. Evidence of Prior complaints [15] The plaintiff described in his evidence the difficulties which he had been having with the number 1 hoist even prior to the day on which he was injured. He stated that difficulty or problem to be as ‘it didn’t go up or come down’ and that there were times when the hoist would go very fast when it went up. He stated that he had reported these problems to Shane, that he had done so three times in a week and that he had made complaints for more than one week (T1-98) even prior to the day on which he injured himself. During cross examination, the plaintiff confirmed that he had made complaints to Shane about these problems with the assistance of a co- worker (because of his language difficulties) regarding the remote not working in that it was not going up and it was not coming down (T2-28). He admitted that he had not said anything to Shane about the remote activating the hoist at varying speeds (T2-28). [16] Two Samoan co workers gave evidence in the plaintiff’s case on this issue. Mr Ioapo gave evidence, without the assistance of an interpreter, even though his first language was not English. Nevertheless, his use of the English language during the -- 5 of 42 -- 6 course of his evidence evidently showed that while he spoke it quite well, he still, at times, had difficulty actually expressing himself. For example, he would use expression such as the hoist ‘just go up fast’ and the like. Mr Ioapo recalled that during the time when he had worked at the defendant’s premises as a forklift driver during 2008, he was sometimes required to deliver items to the area where the plaintiff worked in the priming booth. He believed he had started work at those premises after Christmas 2008 though he wasn’t entirely sure (T4-89). [17] He gave evidence that he had on occasion assisted the plaintiff, because of his language difficulties, to speak to ‘Mr Shane’ about the hoist. He estimated it was about three or four times. He was unable to recall when he had done that. He explained that he told Mr Shane that the hoist not working properly in that sometimes the plaintiff would press the button, the hoist ‘just go up fast’ (T4-87). During cross examination, it was pointed out to Mr Ioapo that had not mentioned these conversations with Mr Shane in that statement he had given on 1st March 2011, however Mr Ioapo stated that he had told Mr Shane about the hoist problems and that he had just remembered the things he had said to Shane (T4-91). He also confirmed that at times the hoist would lift slowly and at other times it would lift quickly (T4-92). [18] Mr Misi also gave evidence on this issue. He required the assistance of the interpreter on occasion as English was not his first language. Mr Misi said that he had worked at the defendant’s premises since 2006 but had finished up in October 2007. He stated that he had sometimes worked in the priming booth and had worked on both numbers 1 and 2 hoists in that area. He described how he had encountered problems with the number 1 hoist. He described it as ‘pressing this thing it wasn’t working. When pressed again it will go so fast up and it will get stuck up there’. He initially described this problem arising about twice a month however then stated that it was only once that the pipe got stuck up in the crane, presumably up at the top (T5-6). He stated he had also told Shane about it. [19] He also described during cross examination how if he pressed the remote for the pipe to go up, usually it would go up to chest level so that it could be sprayed, but on one occasion it continued to go up even though he had released his finger off the remote button (T5-7). He did not accept the proposition initially put to him for comment which was that generally the hoist always lifts at the same speed once it is activated. However a little later in his evidence, he did seem to accept that once the remote is activated, it always moves at the same speed (T5-11). Notwithstanding this anomaly, Mr Misi repeated several times during the course of his evidence that sometimes when he had pressed the remote it would go and some times when he pressed it the remote ‘was going fast’ (T5-8, T5-9 and T5-14). [20] Mr Parmenter, the plaintiff’s foreman at the relevant time, admitted that he had received complaints from the plaintiff and from another co worker, Mr Misi, regarding the remote prior to the plaintiff being injured. It was also clear that Mr Meechan, who was responsible for minor maintenance of the hoists, was also aware of a problem relating to the remote button. Both Mr Parmenter and Mr Meechan confirmed during their evidence that the remotes had in the past got ‘build up’ (as a result of overspraying) on it which would in effect cause the button which activated the hoist to ‘stick’. That had the result of the hoist continuing to go up or down even after the operator had taken his finger off the button (T6-17). Both Mr Parmenter and Mr Meechan confirmed that this problem had to be addressed regularly as a -- 6 of 42 -- 7 result of build up (T6-36) and that a rubber overlay cover had been introduced by Mr Meechan subsequently in respect of the replacement hoists in an attempt to overcome the problem (T6-37). Prior to that being introduced, Mr Meechan gave evidence that it was really left up to the operators to try and keep it clean (T6-36) a fact confirmed by Mr Woodwood. Mr Parmenter gave evidence that after the complaints had been made to him by the plaintiff and the other co workers, a maintenance plan had been implemented which he believed had eliminated the problem (T6-29). Mr Woodwood, leading hand at the relevant time, on the other hand, dealt with such complaints in his own way. He gave evidence that if he had a complaint then he would go and check it out, but if it worked alright for him then he would just leave it at that (T6-47). Mr Bolton, Safety and Rehabilitation Co- Ordinator, gave evidence that even though he hadn’t personally received any complaints regarding any defects with the hoist, remote or the hook, he was aware of them (T2-62). He had not however ever operated the hoist which the plaintiff had allegedly been injured on. [21] The defendant submits that the evidence of prior complaints especially from Mr Ioapo should be discounted as he did not mention it in a written statement which he initially provided and the fact that he may not have been an employee at any relevant time. I am unable to accept those submissions. Mr Ioapo struck me as an honest witness and I have reason to believe that he was simply mistaken about when he had commenced at the workplace. I certainly did not get the impression that he was simply making up his evidence regarding his recollection. In any event, his evidence was that he wasn’t sure exactly sure when he had commenced at the workplace. [22] The submission which has been made also overlooks the other evidence available on this issue. Mr Parmenter and Mr Meechan both confirmed that many complaints had been received regarding the hoist and the remote button failure to operate properly prior to the plaintiff allegedly being injured. Mr Parmenter even accepted that Mr Misi had made a complaint to him about the remote. The available evidence therefore supports a conclusion that prior complaints were made by relevant employees which the employer concedes it was aware. Risk Assessments performed [23] Mr Bolton, the employer’s Safety Co-ordinator, gave evidence regarding risk assessments which had been carried out in respect of the priming booth prior to the plaintiff injuring himself. He stated that a worker hanging onto a hook apparently as it ascends was not identified as a risk. He stated that was because of the way it was, that is, the worker was only required to lift to the height of the chain line going into the oven, in that the worker would hook the object onto that chain line which did not involve any lifting by the worker above the worker’s head (T2-61). [24] Mr Bolton also gave evidence that the build up on the remote as a result of overspray which resulted in the button becoming stuck even after a worker had removed his finger off that button was also not identified as a risk. He stated that was because even though the hoist would keep ascending or descending in those circumstances, the limit switch on the crane would cut it out, and as such, there was no risk to a worker identified (T2-61). That evidence was given by Mr Bolton against the earlier evidence on this issue which he had given, namely that the only -- 7 of 42 -- 8 way the hoist could keep rising is ‘if you keep your finger on – on the button’ (T2- 58). [25] Mr Vecchio, Manager, provided no useful evidence on this issue. His evidence was that he didn’t believe there was anything wrong at all with the hoist in question, even going as far as to say that the only reason that the hoists were replaced were as a result of the complaint made by the plaintiff that there was something wrong with the hoists. Indeed, Mr Vecchio’s evidence was that he didn’t even believe the hoists had any problems at all such as oil and air leaking or that the remote was causing a problem (T2-78). That evidence was contrary to the evidence given by Mr Meecham who actually carried out minor maintenance work on the hoists with more substantial work being left to a 3rd party contractor (DeMag). Mr Meecham confirmed that the hoists had all of those problems. [26] Mr Bolton also gave evidence regarding a re-enactment which he and Ms Valiant from Catalyst Injury Management requested the plaintiff to show them how he said he had been hurt on the hoist. This took place presumably sometime in the latter part of 2008 (after Catalyst had become involved). Mr Bolton gave evidence that he couldn’t understand how the plaintiff could have hurt himself in the manner described to him (T6-57). Mr Bolton gave evidence that he believed the only way the hoist could keep rising is if you keep your finger on the (remote) button. (T6- 58). Mr Bolton’s understanding however in this regard was simply not correct and indeed inaccurate when one has regard to the other available evidence given on this issue. Mr Parmenter, Mr Meecham, the plaintiff and the other co workers all gave evidence about the remote button sticking which could give rise to the hoist continuing to ascend even after an operator had taken his finger off the button. Mr Bolton, in any event, gave evidence that he had only operated a hoist after the incident had occurred which may well have been after the new replacement hoists were in place from March 2008. He also wasn’t sure that he had ever actually ever operated the hoist which the plaintiff says he was operating when he had suffered his injury. Hoists replaced in March 2008 [27] There was evidence given on this issue. Mr Parmenter (T6-29) and Mr Meecham (T6-42) believed that the only reason the hoists were replaced was because the service cost was nearly the cost of a new hoist, so economically it was better to replace them. However, that evidence was in complete contrast to that given by the Manager, Mr Vecchio. Mr Vecchio gave evidence that the only reason that the hoists were ever replaced was because the plaintiff had alleged there was something wrong with the crane, so just to make sure that nothing arose in the future, the hoists were replaced (T6-78). He confirmed several times during his evidence that he believed that there was nothing wrong with the hoists and denied that there were problems such as air and oil leaks or something wrong with the remote. That evidence was in direct contrast to Mr Meecham’s evidence who confirmed that there were problems with the former hoists which included air and oil leaks and problems arising with the remote as it related to ‘build up’. Mr Vecchio’s evidence was unhelpful on this issue, not surprisingly, as the maintenance in respect of the hoists was left to others. Expert Evidence – Dr Frank Grigg -- 8 of 42 -- 9 [28] The only expert called to give evidence in respect to the type of hoists situated in the priming booth at the time the plaintiff says he was injured was Dr Grigg. His report dated 2nd August 2013 was marked as an exhibit 152. It was agreed between the parties that both hoists (numbers 1 and 2) had been scrapped in March 2008 and as such, Dr Grigg did not have the opportunity to inspect either of those particular machines for the purpose of his report and opinion. [29] Dr Grigg confirmed in evidence that he had assumed for the purpose of his report that the hoists that were scrapped were NPK RHL 250 models. That conclusion appears to be supported by the other evidence available during discovery as it relates to maintenance records in that at least one of the hoists situated in the priming booth prior to them being scrapped was of that type and model. There was however no suggestion from the defendant that either hoist in that area was of a different type or model from each other. The available evidence also shows that the two hoists scrapped were subsequently replaced by a different model altogether, namely a Toku 250 DPE. [30] Dr Grigg confirmed during his evidence that the NPK had a selection of speeds available insofar as its’ lifting speed which may be set anywhere between 46 to 85 cms a second. He confirmed that that as that type of hoist got more worn, then it is likely that it would start to leak air, which in turn would slow its’ lifting down. He also confirmed that once the machine’s speed is set then it cannot go any faster than that set speed. Dr Grigg also confirmed that even though the machine cannot travel above its’ set speed, he stated that it was a matter of perception (by the operator) whether that person might think that the rising at a speed of 80 cms a second, might be considered to be ‘jerking’. [31] Dr Grigg also gave evidence that once the machine’s speed is set, then if you push the button (remote) fully then it will reach that maximum set speed and no more. He also confirmed that the operator could also reduce the speed by not fully depressing the button. That evidence however was qualified by Dr Grigg having regard to whether the remote was working correctly or not (T5-45). In re examination, Dr Grigg however clarified this point. He stated that if the remote was in fact faulty as described, he would expect that the maximum speed you could get would be the set normal maximum speed, but the fault itself might cause it to be something less than that (T5-47). In other words, the faulty remote will not make it go faster than its set maximum speed (T5-48). Dr Grigg also confirmed that while the maximum speed relating to the NPK hoist may be set between 46 to 85 cms per second, if the machine is in very poor condition in that it was only operating at a maximum speed of 16 to 17cms per second (as suggested by the defendant) then the jerking is likely to have occurred as a result of its’ poor condition or that the settings on the hoist itself were such that it didn’t work at its maximum speed (T5-47). In his report, Dr Grigg referred to the settings relating to the maximum speeds in respect of the NPK RHL 250 hoist and the replacement TOKU 250 DPE hoist after the former was scrapped. [32] Attachments 1 and 2 to that report refer to the speed range available. In respect to the NPK RHL 250 hoist, Dr Grigg noted that it was capable of a much higher lifting speed than the TOKU. He also noted that TOKU did not have the equivalent of the speed adjustment feature of the NPK. In order words, the TOKU hoist only has a maximum lifting speed of 13.1cms per second in comparison to the NPK which had a maximum lifting speed of 46 – 85 cms per second, depending on the setting of the -- 9 of 42 -- 10 speed adjuster. When regard is had to the speed adjuster chart contained in Attachment 1, the range of minimum and maximum lifting speeds available for the NPK RHL 250 ranges from 9.8 to 25.5 m/min which, when converted, is 16.3cm to 42.5cm per second. However, as pointed out by Dr Grigg during his evidence, those calculations must be doubled for the purpose of calculating the speed range available for the NPK RHL – 250 (as indicated below that chart), therefore giving it a minimum or maximum speed range of 46 cm to 85cms per second. ‘Speed of the Hoist’ [33] Mr Parmenter conceded he was unable to comment regarding any difference in speed as it related to the new and former hoists lifting capacity (T6-30). Mr Meecham believed however that there could be a combination of speeds that might result. For example, he gave evidence that dependent on the amount of air the hoist was being supplied with, that may result in the hoist reaching its’ set maximum speed immediately after the remote button was pressed, or that it might result in it not working at all or it might result in it even reaching a speed somewhere between no speed and the maximum speed allowable. He also conceded that he did not have any real knowledge of a comparison between the speed of the old and new replacement hoists (T6-43, 44). Mr Woodwood, who worked as a leading head at the relevant time, who had also operated both the old and new replacement hoists considered that the hoists had always been too slow for him. Mr Woodwood also did not consider that the speed of the hoist could go any quicker than presumably it had been set as he had tried by ‘pushing it heaps of time, and it wouldn’t go any quicker’ and ‘it just would not go’ (T6-47). [34] The defendant submits that the evidence by the witnesses who actually operated the hoist such as the plaintiff and Mr Misi should be discounted as the expert evidence of Dr Grigg confirms that the hoists can not go any faster than the set maximum speed. As such it was submitted, their evidence regarding the hoist going up ‘fast’ could not be believed. I cannot accept that submission. That submission overlooks the evidence of Mr Meecham on this issue. It was clear from Mr Meecham’s evidence that a variety of speeds could arise at any given time attributable to the air system failing. That evidence is in addition to the evidence which was available that the remote button could also stick because of overspray build up causing the hoist to continue lifting or not lift at all at times. As such, the evidence of the plaintiff and the witnesses regarding their perception that the hoist could ‘go up fast’ is, in my mind, reasonably open on the evidence. [35] Dr Grigg also confirmed that an operator could reduce the speed by not fully depressing the button on the remote but one had to have regard to whether the remote was working correctly or not. In this case, there was evidence that the remote was in fact not working as it should on occasion. He also confirmed in his evidence that the maximum speed which the hoist could achieve was three times faster than the replacement TOKU hoist (the speed of which is only shown in the DVD work practices video). ‘Jerking’ [36] Mr Parmenter did not appear to recall any problem reported to him associated with a ‘jerk’ (T2-17) insofar as the hoists in question though he did admit that the problem reported to him by the plaintiff regarding the sticking of the remote button and by -- 10 of 42 -- 11 others were the same type of problem. Mr Meecham did not specifically recall any report to him related to any ‘jerking’ (T6-37). Dr Grigg however confirmed in his evidence that even though the hoist could not travel above its’ set maximum speed, he stated that it was a matter of thinking (by the operator) whether that person might think that rising at a speed of like 80cms a second, might be considered ‘jerking’. There was further evidence on this issue which also lends support to the view expressed by Dr Grigg. The plaintiff told Dr Moroney that ‘his shoulder was suddenly jerked in an upward direction’ (ex 34). He also gave a general description to various doctors that could be accepted as consistent with the plaintiff’s own perception that the hoist had commenced its ascent ‘suddenly’ before he had time to take his hand off at a time when he was using the remote. Bearing that in mind, given the language barrier, this is consistent with a description of the machine appearing at least to the plaintiff to have jerked upwards at or immediately before the commencement of its’ ascent particularly where it had not been activating just prior. ‘The System of Work Adopted’ [37] The DVD work practice video played to the various witnesses confirmed the system of work that was generally carried out in the priming booth where the plaintiff had worked even though the hoist actually being used was the replacement Toku. That video shows, not surprisingly, that during the course of the work activity being performed, that a worker is always required to have at least one hand on the pipe or the product that he is working on, with the remote in the other, most if not all of the time when guiding it. That is the case throughout the whole of the system of work shown in the DVD. The DVD also shows that the worker guides the pipe or product towards the conveyor belt for hook up in order that the product may then go into the oven, a fact also confirmed by Mr Meecham (T6-43.) [38] I find that the evidence available shows that in order to carry out the work required in the priming booth, a worker is required to leave a hand on that item even when it is being lifted into position, a practice commonly and always adopted by most workers, again not surprisingly, in order to stabilise or direct the load being lifted. I find that the system of work adopted by the employer, against a background of prior complaints of the remote sticking and the hoist lifting at variable speeds dependent on the air being supplied to it, required the defendant to warn the plaintiff and other operators to take care especially when activating the ascent button. I find that the defendant, upon becoming aware of the problems with the remote and hoist, ought to have taken steps to tell the operators to be careful when leaving their hand on the hoist/hook while also operating the remote. There was no evidence to suggest that this simple precaution was taken or even contemplated prior to the plaintiff being injured. Indeed, the risk assessment conducted by Mr Bolton confirms that no such precaution was taken because he did not identify it even as a risk. Unfortunately, it is clear from Mr Bolton’s evidence that he didn’t turn his mind to the possibility that if an operator kept his hand on the hoist and pressed the remote button which could then ascend at its’ maximum speed even after the operator had taken his finger off the remote, that it was more likely that a worker in those circumstances may well have his hand/arm extended above his head level before he had time to remove it, and could in turn suffer injury. Breach of Duty of Care -- 11 of 42 -- 12 [39] Having regard to all of the evidence available for consideration, I find on the balance of probabilities that the plaintiff has established that he suffered a work related shoulder injury as a consequence of using a hoist with a remote control which the employer knew was not functioning properly and had been the subject of prior complaint. I also find that the hoist itself, as a consequence of the amount of air supply it was or was not receiving, was also not functioning as it ought to have been upon the remote button being activated. I find that the employer in this case has breached its’ duty of care in that all reasonable precautions were not taken to eliminate the unnecessary risk of injury that arose here. I find that risk was reasonably foreseeable and was likely to result in injury if the worker left his hand on the hoist/hook when activating the ascent remote button which was not working properly at the time. [40] An employer is required by statute, by the terms of the contract of employment and the duty imposed upon it by law to exercise reasonable care for the safety and wellbeing of its’ workers which included providing a safe system of work and providing suitable equipment. I find that the employer has breached its’ duty to the plaintiff in failing to provide proper equipment which could be used by its workers safely particularly having regard to the system of work in place that was adopted when carrying out their duties in the priming booth. [41] I find that any risk assessments also taken in respect of the hoist were inadequate insofar as identifying the real and foreseeable risk of injury to the worker particularly against a background of prior complaints having been received in respect of the remote sticking and an awareness that variable speeds may result depending on the amount of air being supplied to the hoist. Further I also find that Mr Bolton’s evidence regarding any ‘cut out limit’ relating to the hoist itself was misconceived insofar as any impact it may have in the circumstances just described. The evidence shows that any cut out limit would have no effect at all in preventing the hoist from lifting at its maximum set speed notwithstanding Mr Bolton’s initial evidence on this point. [42] I find that the plaintiff has satisfied the requirement of proving that it was more probable than not that had the plaintiff and other operators been warned not to leave their hand on the hoist/hook when activating the ascend button the injury would not have been suffered. Causation [43] The defendant disputes the question of causation. The defendant’s primary submission was that the plaintiff’s evidence should be rejected regarding how he says he was injured as he was singularly lacking in credibility. The defendant submits that in those circumstances the claim ought to be dismissed. The defendant also submits that in the event that any breach of duty by the employer is established, the defendant says that it was insufficient to cause any or any significant injury at all beyond that of a type which only entitled him to one week’s restricted duties and possibly a statutory compensation claim. The defendant submits that no damages should be awarded under those circumstances, particularly when regard is had to the plaintiff’s overall credibility. The defendant also says that even if there was any negligence established, the plaintiff contributed to his own injury and/or failed to mitigate his loss. -- 12 of 42 -- 13 Findings on Credit [44] The defendant referred to various matters in his written submissions which I shall deal with in order that they may be readily understood. Both counsel provided helpful written submissions (marked exhibits 154, 155 and 156), which were supplemented by oral submissions. The plaintiff’s evidence regarding the work incident giving rise to the injury [45] The defendant submits that the plaintiff was unreliable in his account to the court on this issue and overall as a witness generally. [46] After paying careful regard to the evidence available on this point, I find that the plaintiff’s evidence regarding how he injured himself at work on or about 14th February 2008 was consistent throughout the whole of his evidence even though it was at times hard to follow due to the nature of the questioning required, the many breaks necessitated by the interposition of the various medical witnesses and after giving due allowance related to the taking of full interpreted evidence from him. At no stage did I think or form an impression during the whole time he was giving his evidence that he was being deliberately untruthful or evasive in his account to the court. A careful reading of the whole of his evidence, supports a conclusion that the evidence which he gave, especially during extensive cross examination about how he injured himself on the hoist, was not only consistent with the original account which he gave during his examination in chief, but it was also consistent with the pleaded case and the general description which he then gave to the various doctors. [47] There were some descriptions regarding the stated cause of injury that required further consideration: Dr Cherian 14/2/08 ‘lifting fittings 20+ kgs at work yest’; Dr Robinson 21/10/09 ‘accidentally pressed the wrong button’; Dr Ballenden, 18/11/09 ‘he pressed the up button on the right side inadvertently and the chains lifted into the air etc’ (ex 71 p167) and Dr Gilpin 19/7/11 ‘ he claimed the machine suddenly activated’. The description given to Dr Cherian was consistent with the evidence given by the plaintiff regarding lifting with the hoist a variance of weights. Mr Parmenter in any event confirmed that he had told the doctor that the plaintiff had been using the hoist when he says he was injured. The account to Dr Ballenden, in my mind, can also be readily explained. I do not consider after having observed the plaintiff and his wife giving evidence that either of them would use the term ‘inadvertently’ in any description given. Mrs Fetu’s grasp of the English language did not demonstrate to me that she would even understand that term and it is not contested that the plaintiff could not speak or understand the English language very much at all. Regarding the account recorded by Dr Robinson, I am satisfied that any suggestion that the plaintiff had said he had accidentally pushed the wrong button was lost in translation and did not in any event accord with the consistent account given by the plaintiff to the various other doctors regarding how he had suffered his injury. He had always described as being injured only when he was using the remote in order to get the hoist to lift upwards (in the ascent) and not in descent. The undisputed evidence regarding the remote was that there was a button for each of those phases. The account given to Dr Gilpin is also consistent with the account given by the plaintiff regarding how he described he had suffered the injury. As such, these various accounts do not cause me to have any doubt regarding the plaintiff’s credibility as a whole or cause me to consider that he had in any way -- 13 of 42 -- 14 contributed to his own injury. I accept what the plaintiff says about what he says happened when he was injured. [48] The defendant submits that in the plaintiff’s amended statement of claim the plaintiff asserts he was injured on the 14th February 2008. The amended statement of claim however in fact says that it was ‘on or about’ the 14th February 2008’ when he says he was injured. This is consistent with the medical evidence of Dr Cherian which I shall now address. Initial attendance upon Dr Cherian on 14th February 2008 [49] Mr Parmenter who was the plaintiff’s foreman up until Mr Parmenter returned to Innisfail to work at the end of 2008, gave evidence that he couldn’t recall the plaintiff ever telling him about any injury at work on the 13th February 2008. He in fact denied that the plaintiff had ever reported that he had hurt himself on the 13th February 2008 or that he had told him to initially take a rest or had sent him home that day. He stated that he did recall however taking the plaintiff to see Dr Cherian after the plaintiff had told him that he had hurt himself at work. Mr Parmenter recalls the plaintiff telling the doctor that he had hurt his shoulder on the hoist and that they were then given a work plan to put the plaintiff back to suitable duties until such time he was right to go back to full normal work (T6-16). [50] I find that the evidence regarding Dr Cherian’s attendance with the plaintiff on the 14th February 2008 supports a conclusion that the plaintiff suffered a work related injury the day before when the plaintiff was working in the priming booth. The evidence of Dr Cherian already referred to in these reasons confirms that it was reported to him that the plaintiff said he had suffered a shoulder injury the day before. The entry ‘lifting fittings yest’ confirms this fact. The clinical notes also show that the Doctor noted the injury had occurred yesterday. Mr Parmenter also confirmed that he had told Dr Cherian that the plaintiff had been working on the hoist on the day when he was injured. There was no evidence that the plaintiff was working anywhere else other than the priming booth on that day even on the defendant’s own case. Dr Cherian also gave a workers compensation certificate stating that Dr Cherian was satisfied that the injury had arisen as a result of the stated cause given to him. Period between 14th February 2008 and 20th July 2008 [51] The defendant referred specifically to the contemporaneous documentation which also included exhibits 86 and 87 respectively, as it related to the plaintiff’s attendance at work during this period. Ex 150 was tendered but only to assist me in understanding those documents and the cross examination that was to take place in respect of it. In short, the defendant says that the contemporaneous documentation tendered by the defendant belies the plaintiff’s evidence given at trial regarding his return to work and the type of duties which he says he was doing during this period. The defendant says that exhibits 86 and 87 when read together show that during this period that the plaintiff had returned to work on suitable duties the week immediately after he had seen Dr Cherian, that he then had two weeks off related to personal reasons (the son’s hospitalisation which was not disputed) and then returned to work after this period, aside from some days off here and there, and had carried out his full time normal duties back in the priming booth. What is immediately apparent when looking at that documentation (ex 86 and 87) is that it is -- 14 of 42 -- 15 not readily distinguishable whether the plaintiff was working on full ‘normal’ duties or was in fact at work doing suitable duties during the hours that have been recorded as him being at work. [52] A careful reading of the plaintiff’s evidence on this issue supports a reasonable conclusion being made that the plaintiff appeared to have understood that Dr Cherian had advised that the plaintiff should stay away from work for two weeks but that ‘when he went to work the following day, Shane took him back to work’ (T4-7). The plaintiff denied a suggestion during cross examination that he had never been told by Dr Cherian to have 2 weeks off after the accident as he suggested. (T4-8). [53] The plaintiff was then taken through the 2008 ‘calendar’ (ex 150) relating to his alleged work history during February to July 2008. Due allowance must be made regarding the time which has since past regarding the calendar entries recorded and the plaintiff giving his evidence at trial. Even notwithstanding, the plaintiff continued to maintain consistently throughout his evidence, which included extensive questioning on this exhibit, that he believed he had taken 2 weeks off after he had injured himself like he understood Dr Cherian had told him to, that he agreed that he had time off relating to his son’s hospitalisation and that he had then returned to work but was only ever performing light duties most of the time. He stated in his evidence that he had been required to work the hoist in the priming booth if Shane couldn’t find anyone to work in there but he would only be in there for about half an hour as it would be too painful for him. He stated he would then go back to his light duties as before which included stacking pipes, banging them to make them straight and the like, (T4-16) a fact that he had also confirmed earlier in his evidence (T4-9). He continually denied that he had returned to the priming booth upon his return to work after his injury full time as suggested and stated that he had only gone back to the priming booth on one day because Shane had came and asked him to go there (T4-22). The defendant submits that no suitable duties were in fact ever extended beyond the 20th February 2008 (ex 11), lending support to the defendant’s submission that an inference can be drawn that the plaintiff had in fact returned to full duties after that time. I cannot accept that submission. Mr Parmenter confirmed that the plaintiff was not taken back for review, as required under Dr Cherian’s certification. He could not explain a reason for that. Ex 150 also shows nearly immediately after that review was to take place, the plaintiff was off for approximately two weeks in any event before returning to work. The plaintiff’s evidence which I accept, was that even if the plaintiff had returned to the priming booth after that time, he had complained of pain to ‘Shane’ and was then taken off those duties and put to work someplace else on site. [54] The plaintiff stated that even though he continued to work, his shoulder had continued to get worse and he wasn’t able to do his work. He eventually went to see his own doctor on the 26th July 2008 (Dr Sundram) after seeing a doctor at the Ipswich Hospital on the 20th July 2008. He had gone to the Ipswich Hospital on that date by ambulance complaining of a swollen left arm and painful shoulder. He was given a work certificate in addition to a medical certificate by Dr Davidson at that Hospital (ex 18) and subsequently received WorkCover benefits. During this time he said he also received some physio treatment. Notwithstanding those certificates, he was taken to be reviewed by Dr Cherian on the 21st July 2008 and again with his employer on the 28th July 2008 as a dispute had arisen between them regarding the -- 15 of 42 -- 16 causal link between his work injury in February 2008 and the onset of worsening pain in July 2008. [55] During cross examination, Mr Parmenter confirmed that the plaintiff was not taken back for medical review as required under Dr Cherian’s medical certificate and could provide no explanation regarding why that was not done. He also could not remember whether he had filled out an incident report even though he conceded it was his responsibility to do so. He also could not remember whether he had even told his Manager (Mr Vecchio) or Mr Bolton (Safety and Rehabiliation Co- Ordinator) about the plaintiff’s injury at that time. Indeed, not surprisingly, due to the time that has since passed, Mr Parmenter conceded however that his recollection of events now were limited. For example, he stated in chief that he could only really remember the months of February and July (T6-16). That fact was again confirmed by him during cross examination in that he conceded that he really couldn’t remember anything in between those times. As such, the evidence which Mr Parmenter gave, in chief and under cross examination, that he believed that the plaintiff had returned to full (normal) duties after the February event must be viewed by me with some caution, particularly having regard to Mr Parmenter’s evidence to the court which was that he wasn’t even quite sure when any return to full normal duties had taken place. Mr Parmenter also could not even remember whether he had in fact taken the plaintiff off the priming duties after the plaintiff was unable to perform those duties (T6-27) during that period or whether he had been performing other tasks during that time such as sweeping the floor or lifting things (T6-27), which supports a conclusion that the plaintiff may well have been carrying out other duties other than in the priming booth during that time. [56] Mr Woodwood, who was the plaintiff’s leading hand at the relevant time, recalled that when he first heard about the plaintiff hurting himself, he recalled him having a week off and then he was placed onto light duties. While Mr Woodwood confirmed that he did not know exactly when he first heard about the plaintiff having hurt himself, a careful reading of his evidence shows that his evidence clearly related to the period of five to six months prior to July 2008 (T6-48.49). That conclusion is supported by the evidence which he gave during cross examination when he recalled that the plaintiff was taking time off around March and April as it impacted upon other workers, a fact he was personally aware of being the leading hand and conscious of. He recalled that the plaintiff had either a week or two off, that he had continued to have difficulties and had to have more time off work (T6-51). [57] I have no reason not to accept Mr Woodwood’s evidence on this issue. Mr Woodwood especially remembers the impact that the plaintiff’s absences were having on the workplace as leading hand and as such, I have no reason to reject his evidence when he said that the plaintiff had been given light duties to do even during March and April which he understood simply continued until the plaintiff eventually ceased work (T6-52). I do not consider that Mr Woodwood was mistaken or confused about his evidence as the question put to him by counsel for the defence specifically directed his mind to a time relating to the period five or six months prior to events of July 2008 (T2-48, 49). [58] I find that even after giving due regard to Mr Parmenter’s evidence at its’ highest, I am unable to accept his evidence which was that the plaintiff had returned to full time normal duties working back in the priming booth during this period. I find that Mr Woodwood’s recollection of events is more likely particularly in circumstances -- 16 of 42 -- 17 where Mr Woodwood had an interest as a leading hand to know what duties his workers were performing in order to make up any shortfall. His account is also consistent with the plaintiff’s recollection regarding the type of work that he was doing during the period February and July 2008 before the plaintiff then went off work for several months before eventually returning to work under a suitable duties program organised by WorkCover. [59] Mr Bolton, Safety Co-ordinator, also gave evidence on this issue. During his evidence in chief, Mr Bolton gave evidence that when he use to attend at the Wacol workplace (from Innisfail where he was based) once a week that he had personally observed the plaintiff doing normal duties after the February 2008 incident (T6-56). Mr Bolton’s evidence however must also be viewed with caution in light of his concession that most of what he understood was as a result of what someone had told him (namely information he had received from Mr Parmenter) regarding the type of work the plaintiff was doing during this period. His observation of the plaintiff once a week as he suggests when he was attending at Wacol is difficult to accept particularly when he conceded that he was there attending to the whole of the site in his designated role and not there to observe a particular worker per se. It is also important to remember that there would have been no real reason at that stage for Mr Bolton to be taking any particular interest in the plaintiff at all during that period in light of the defendant’s case, which was that the plaintiff had not suffered any injury at all or if he had, it had only been minor. [60] I find that ex 86 shows that the plaintiff’s working hours are recorded during the week ending 19th February 2008 and are consistent with him having attended that week at work. However, that is not the end of the matter. As already stated, exhibits 86 and 87 do not show the type of work that the plaintiff was actually carrying out at any stage during the periods recorded and as such, I am unable to, as submitted by the defendant, to find that those documents are capable of supporting a reasonable inference being drawn that the plaintiff had in fact returned to full time normal duties. The evidence which I have accepted from the defendant’s witnesses in fact suggests the opposite conclusion. [61] I find however that exhibit 86 does show that during the week ending 4th and 11 March 2008 respectively the plaintiff was clearly absent from work for 5 and 3 days respectively. Those weeks coincide with one of his son’s being in hospital. It is not disputed between the parties that the plaintiff was absent from work during this time. The absence of two weeks at this time is in my mind consistent with the plaintiff and his wife’s recollection that he was off work for nearly 2 weeks after he had just been to see Dr Cherian. I do find however that their respective recollections of the timing of such absence was not as they thought, being immediately after the consultation with Dr Cherian on 14th February 2008. The absence nevertheless occurred shortly thereafter. The records show that the plaintiff was in fact absent from work between 22 February up until 10th March 2008 (a period of two weeks approximately), after which time he returned to work. [62] Even though I find that the plaintiff was mistaken about when he believed he had taken time off work during February 2008, it does not cause me to consider him an untruthful or unreliable witness as a consequence or cause me to reject his evidence entirely. The evidence shows that the plaintiff did in fact have approximately two weeks off from work during February 2008/March 2008. I find that his absence was in part attributed to his son’s illness and in part to his belief that he should be taking -- 17 of 42 -- 18 time off to rest in accordance with Dr Cherian’s advice. Mrs Fetu’s evidence was that she had heard Dr Cherian telling Shane to let the plaintiff have two weeks off work, consistent with the plaintiff’s own belief. Mr Parmenter denied that she had attended that appointment however I have no reason to believe that Mrs Fetu did not attend at the doctor on that day with her husband as she stated. She said that her husband had come home from work early the day before and that is why she went with him to work the next day in order that he could go to see the work doctor with Mr Parmenter. [63] The plaintiff utilising his remaining sick leave and then annual leave at the time his son was hospitalised is also consistent in my mind with the belief that the plaintiff and his wife may have held, that Dr Cherian had suggested that he should have two weeks away from work to rest his shoulder. The defendant submits that it would be a nonsense for the plaintiff to have sought leave to be at the hospital with his son if he was legitimately absent on sick leave as he suggested. While I accept the submission made on this point has some merit, the evidence which the plaintiff gave on this point must also be viewed in the context of Mrs Fetu’s evidence. She stated that the only reason she had obtained a certificate from the hospital regarding his son’s hospitalisation was because Shane had asked her to get one, a fact which she then did. [64] The defendant also says that the plaintiff should nevertheless be found to be untruthful or at the very least unreliable, having regard to his recollection in respect of the two weeks which were actually taken off, as it could not be said to be related at all to any injury suffered on the 13th February 2008. [65] I cannot accept that submission. The evidence from the plaintiff and his wife was that he had been at home (away from work) during the two week period his son was in hospital. Mrs Fetu clarified in her evidence later however that her husband was at the hospital for one of those weeks and their niece had taken over that role for the other week (T5-35). During the time that the plaintiff was at home during that period, Mrs Fetu gave evidence which, I have no reason not to accept, that her husband virtually sat around and did nothing. She also stated that if he attempted to do some chores he would not complete them. As I also understood the evidence, he was simply required to sit with his son at the hospital who was seriously ill as his wife was unable to be there because of a young baby at home. The defendant submits that the wife’s evidence that the plaintiff was at home literally during the two week period ignores two important points. Firstly, Mrs Fetu’s description of her husband being at home over those two weeks is consistent with her simply meaning her husband was not going to work during that time. It also ignores the evidence which she gave, which was that when he was at home over those two weeks, he was virtually doing nothing. While it is accepted by me that exhibit 86 shows that the plaintiff apparently did in fact return to work during the week immediately following Dr Cherian’s visit, he nevertheless was still placed on suitable duties during that week, a fact even conceded by the defendant which is consistent with the plaintiff having suffered an injury around that time, a fact which the defendant has always continued to deny. [66] Mr Woodwood also recalled the plaintiff having time off from work for a week or so around this time. His memory however of the plaintiff then being placed on suitable duties during March and April, (a fact denied by the employer), is decisive -- 18 of 42 -- 19 in that it sits precisely with the plaintiff’s time off from work during his son’s hospitalisation and his return to work. [67] There was also evidence from Mr Vecchio in any event which cast doubt over the accuracy of the exhibit 87. Mr Vecchio conceded that the document did not record whether the plaintiff was actually performing normal duties or suitable duties. Mr Vecchio also conceded that the document did not even record when a worker was working under a suitable duties workers compensation plan, which in fact the plaintiff had been during the relevant periods that had been recorded. As such, I accept the plaintiff’s submission that exhibit 87 must be viewed with some caution regarding the entries regarding the type of leave that was being taken during this period in light of Mr Vecchio’s concessions. [68] The defendant also referred to certain matters recorded by Dr Ballenden in his report (ex 71 p 1) and Dr Moroney (ex 34), namely that the plaintiff apparently felt well enough to return to work without a review taking place and that the plaintiff had returned to full duties after having two weeks off respectively. Little in my mind can be made of those respective entries. Mr Parmenter conceded that he did not follow up with the plaintiff’s review as ordered by Dr Cherian even though it was the employer’s practice that such a review ought to be carried out. Secondly, Dr Moroney’s report must be viewed in its proper context. Dr Moroney states that the plaintiff had taken two weeks off immediately prior to returning to full duties. It is evident from the employer documents that the plaintiff did in fact return to work after having two weeks off. Dr Moroney’s recording that the plaintiff had therefore returned to full duties is equally consistent with the plaintiff having simply returned back to work full time after a two week absence from work. The submission made also overlooks the other recording made by Dr Moroney which was that the plaintiff had told him that in between February and July 2008, his left shoulder had never been right and the evidence which I have accepted from the witness Mr Woodwood regarding the type of duties he said the plaintiff was performing during March and April. I cannot accept the submissions which have been made. [69] A further reference was also made by the defendant on this point as it relates to Dr Saleem’s certificate in that after the 10th April work related incident she certified for ‘normal duties’. That certificate related to an injured finger related to a workers compensation claim being made in respect of it. Accordingly, any certification relating to normal duties also must be viewed in that context. [70] The defendant also referred to the Application for Workers Compensation (ex 1) which was made recording an injury to the shoulder of ‘unknown mechanism’. That submission however overlooks the whole of the document which clearly states directly underneath that entry that the plaintiff had been injured as a result of lifting at work. [71] The defendant also referred to the decision of Farrell v Qld Newspapers Lty Ltd [1998] QCA 18 as a case bearing similarities to this case. I cannot accept that submission. The plaintiff in that case had indicated that he had been injured at work by pulling a trolley but then later said had injured himself as a result of lifting at work. Not surprisingly the trial judge could not be satisfied regarding how the injury was said to have occurred. That case is of little assistance here. -- 19 of 42 -- 20 [72] The defendant also referred to the decisions of Quintano v Cable Makers of Australia Pty Ltd [1966] 2 NSWR 496, and Pitsiavas v John Lysaght (Aust.) Pty Ltd [1962] NSWR 1500 regarding the respective court’s observations regarding workers sustaining muscular strains and the like in the context of performing manual labour. The reliance on such cases however overlooks the frozen shoulder complication which has arisen in the context of this plaintiff’s injury, a fact medically confirmed by the various doctors who had examined him, in addition to some radiological evidence which also confirmed that diagnosis. 10th April 2008 incident [73] The defendant submits that this (unrelated) work injury is of significance in itself because it shows that the plaintiff was performing his usual work activities at work in the priming booth when handling a pipe. That submission however overlooks the other available evidence which was available for consideration which I have accepted. The plaintiff had already stated several times in his evidence that he had been returned to light duties which had included having to bang and stacking pipes which he had found painful (T4-9, 16). There was also Mr Woodwood’s evidence on this issue and his recollection as leading hand which was that the plaintiff was doing suitable duties during March and April. I cannot therefore accept the submissions made on behalf of the defendant. Failure to consult medical practitioner regarding shoulder prior to July 2008. [74] It is accepted that the plaintiff did not consult any medical practitioner regarding his shoulder prior to his attendance upon the Ipswich Hospital on 20th July 2008. The plaintiff admitted that fact himself while giving his evidence. The defendant submits that such failure supports a conclusion being made that any injury suffered by the plaintiff on or about 14th February 2008 was minor and therefore resolved quickly, as evidenced by his non attendance upon a medical practitioner during this time. The defendant refers to the Ambulance Report, the records from the Ipswich Hospital and the various entries of attendances upon other doctors for other ailments during this period in support of his submission. [75] The essence of the evidence given by Mrs Fetu, which I have no reason to reject, is that during this period her husband would simply put up with pain, would take over the counter pain relief medication which she would buy for him and give to him when he would complain of pain in the shoulder. She also gave evidence that heat packs and massages were also used in order to give him relief. The evidence which I accept is that Mrs Fetu was responsible for buying and dispensing any medication to the plaintiff, a fact confirmed by the plaintiff during his evidence several times. That practice may not be surprising considering Mrs Fetu had a better grasp of the English language than the plaintiff. I find that the fact that the plaintiff did not consult any medical practitioner during this time is not necessarily fatal to his claim that he was continuing to suffer pain notwithstanding. He was adopting self help measures and clearly, as evidenced by his employment records, was taking time off from work during this period. I also accept that most of this time he was performing suitable duties at work aside from an occasion or several occasions where Mr Parmenter had asked for his assistance for a short period in the priming booth where he had on those occasions found it painful. I also find that even though he continued to work during this period, he was not performing the type of duties he had -- 20 of 42 -- 21 previously been asked to perform in the priming booth full time. The evidence already referred to supports such a conclusion being made. [76] The defendant also refers to exhibit 17A (Ipswich Hospital notes) and clinical notes of an attendance upon the plaintiff (ex 7) by Dr Xu in support of the submission made. The hospital notes, though not entirely clear, does record the plaintiff as having indicated he had suffered a previous shoulder injury. There was no evidence that the plaintiff had suffered any injury to his shoulder other than on the 13th February 2008. The recording of ‘otherwise well’ by Dr Xu in the context of attending in regards to a fever, also in my mind does not mean that the plaintiff was not suffering from continuing shoulder pain since February 2008 as he stated. The defendant also relies on the fact that the medical certification given by the Ipswich Hospital doctor on the 20th July 2008 (ex 17 and 18) makes no mention of the date of occurrence of any such injury. The evidence available shows however that the plaintiff had attended upon Dr Cherian in respect of any injury that had been reported as occurring on the day before. [77] The defendant’s ultimate submission is that having regard to the whole of the contemporaneous documentation available, that a finding ought to be made that there is no medical evidence available that satisfactorily links the events of 13th February 2008 to the development of shoulder pain on 20th July 2008. I cannot accept that submission. That submission overlooks the medical evidence available which confirms that the plaintiff had developed the secondary condition of adhesive capsulitis (frozen shoulder) which had occurred over time. Dr Moroney, Dr Marchant and Dr Vecchio all opine that it had resulted as a consequence of an initial injury having been suffered. Dr Gilpin also confirmed that that condition can also result even after a relatively minor injury. [78] The defendant also refers in its’ written submission to the plaintiff’s evidence regarding the prescription of medication. A careful reading of the whole of the plaintiff’s evidence on this point (especially at T4-4) reveals that the plaintiff did not in fact even remember the date when a doctor gave him a prescription for Endone and Panadeine Forte. He also could not remember what tablets were ‘prescribed’ by Dr Cherian but remembered his wife buying some at the chemist and giving them to him to take. He also stated in evidence at T4-6 that his General Practitioner prescribed tablets for him once a week after he went to see her. The evidence shows that the plaintiff only consulted with Dr Sundram, his General Practitioner, on 26th July 2008 and had not seen her between 14th February 2008 and before the 26th July 2008 and therefore could not have seen her once a week as he stated. However, there was other documented evidence available on this issue. Dr Sundram did commence prescribing the plaintiff Endone (also known as Oxycodone Hydrochloride as evidenced in PBS documents tendered) and Voltaren which are both prescription drugs after she first saw him on 26th July 2008 which is consistent with the plaintiff’s evidence that she was the practitioner who was prescribing him those particular tablets. [79] The evidence by the plaintiff that he left it to his wife to get the medication for him and give them to him is also relevant when assessing his credit on this issue. It was evident during the questioning on this issue that the plaintiff really had no real memory or idea regarding the nature of the tablets which the wife was obtaining and providing to him or when he was in fact taking them. That fact however was not fatal in my assessment regarding his credit overall. The fact was that even Mrs Fetu, -- 21 of 42 -- 22 who had been responsible for that function, could not provide any useful or real details of the medications which had been obtained by her for her husband and the like at trial. Therefore, it is not entirely unexpected that the plaintiff would have little if at all any real memory now. [80] The weight of the medical evidence available also shows that the initial injury suffered to his shoulder on the 13th February 2008 led to the development of a secondary condition of adhesive capsulitis (frozen shoulder) which can arise even after a relatively minor injury (as opined by Dr Gilpin). There was also evidence available which showed that as a result of those conditions, the plaintiff then developed a psychiatric condition which was not stable as a result of not being suitably treated. Drs Whitford and Byth both agreed this to be the case. The plaintiff’s flat, unemotional and unresponsive demeanour in court while giving his evidence is also consistent with this evidence and his failure to remember things chronologically with precision, regarding medication and the like and who prescribed what and when, was a fact also noted by Dr Whitford that the plaintiff presented in an unusual behaviour regarding memory of events and the like. [81] The defendant’s ultimate submission is that after having regard to the whole of the contemporaneous documentation already referred to, with particular regard to the medical evidence already referred to, that I would find that it is fatal to the plaintiff’s claim. The defendant submitted that was because the various doctors called by the plaintiff in his case relied on the history which was provided to them regarding his ongoing incapacity as a result of the shoulder injury which he suffered in early February 2008 which was wrong and in fact was ‘distorted’ insofar as any working history given to them by him and any alleged ongoing physical impairment arising throughout the time prior to July 2008. It was submitted that any opinions based on that distorted history cannot now be accepted. [82] After careful consideration, I cannot accept the ultimate submission which has been made. There was ample medical evidence available which I have carefully reviewed which was available at trial for consideration which supports a reasonable conclusion being drawn that the plaintiff’s initial injury in February 2008 did develop over time into a far more physical complication. There was also ample medical evidence available to link the initial injury to that secondary condition (frozen shoulder) which on all accounts having regard to the various orthopaedic specialists involved agreed can be debilitating and take a long time to resolve. The fact that the plaintiff did not consult any doctors during the intervening period from early February 2008 up until he experienced bad pain on the 20th July 2008 sufficient enough to cause him to attend at the hospital ignores the pain that he had been reporting to his wife, had been putting up with and the steps which he was taking to manage his pain. It is accepted that he was already taking over the counter pain relief, using heat packs and receiving massages. Mrs Fetu gave evidence that he was in pain during this time and made many complaints to her which she observed. She would then give whatever assistance she could or that he would allow here to give him. I have already found that it was more probable than not that he was on suitable duties most of the time that is, not performing his normal work full time in the priming booth and was taking time off away from work during this intervening period in any event, the latter of which is supported by evidence tendered. -- 22 of 42 -- 23 [83] A submission was also made on behalf of the defendant that the history provided to the doctors called by the plaintiff in its case ought to be rejected as Mrs Fetu had been the one who actually provided the history to the doctors, and not the plaintiff. I cannot accept the submission made. Most if not all of the doctors received history from the plaintiff with the assistance of either an interpreter or through Mrs Fetu acting as an interpreter. It was noted by nearly all medical practitioners who saw the plaintiff that it was difficult to extract a precise history from him. Dr Sundram certainly agreed that Mrs Fetu was the main historian however she was also clear to point out that whatever questions she needed answering were also coming from the plaintiff himself on occasion. Dr Byth in his report said he used a 3rd party interpreter, Dr Wallace said that the wife gave the majority of the history but other Doctors such as Drs Gilpin, Whitford, Gerhardt and Vecchio all suggested that they had the assistance of an interpreter or that the wife was acting as the interpreter for him. There is therefore no substance in the submission made. Video Surveillance evidence (ex 138 and 139 respectively) [84] The various tapes tendered were put to the plaintiff for comment. [85] Regarding the 1st December 2010 footage, the plaintiff said that he was driving because Dr Sundram had told him to drive and that he should try and exercise by doing other things including trying to drive in order to help exercise his shoulder/arm (T2-104). With respect to putting air in the tyres, filling up the car with petrol etc, the plaintiff said he did those things with pain and was simply following doctor’s instructions. (T2-105) [86] Regarding the 3rd December 2010 footage, the plaintiff said that his hand gets sore, and that it would go dead if he stops using it. He described it as needles poking into his hand with the pain (T2-107). When shown lifting boxes into the boot of the car, the plaintiff said that he uses his right hand to lift things, with his left hand helping (T2-109) [87] (Seven still photographs were tendered of these relevant activities: exhibit 138). [88] Regarding the 14th and 15th May 2013 footage, the plaintiff said that he did drive a manual van but did so with pain. He stated he did it regardless as a means of exercising (T1-120). When questioned if he driving the manual van all day on the 15th May 2013, the plaintiff replied that he wasn’t driving all day as there were times when he stopped and he would have a rest (T2-120). He also gave evidence that others would also drive the van (like his brother in law and brother) (T4-42), however the plaintiff did admit under cross examination that he usually was the one who was picking up his children from school (T4-48). A substantial part of the footage taken on the 15th May 2013, did not show the driver or anyone getting into the drivers’ seat. [89] The defendant referred to the impressions formed by the various doctors who were called to give evidence at trial after watching the video surveillance evidence in support of its’ submission that the plaintiff was not truthful, or at the very least, was unreliable in his account/presentation to the various doctors who had examined him and therefore should not be accepted as a credible witness. -- 23 of 42 -- 24 [90] On this issue, the plaintiff submits that only two short periods in time were filmed during December 2010 and May 2013. The plaintiff submitted that a substantial part of the May 2013 filming provided no evidence at all of anything in that all it showed was presumably an investigator following a vehicle which did not show the plaintiff at any stage driving, entering or even exiting that same vehicle. While the submissions made by the plaintiff are true, there was however other footage available which showed the same vehicle being followed the day before which the plaintiff admitted he was driving that day. Even though the plaintiff stated he wasn’t driving all day, he did admit however that he had been driving most days in any event in order to either pick up his children from school or to do exercise as he had been advised by Dr Sundram, his General Practitioner, to do. [91] While it is accepted that the video surveillance footage was ‘short’ in compass, it nevertheless had some important evidentiary value contrary to the submissions made on behalf of the plaintiff. The plaintiff submitted that because some of the video surveillance footage shown to the various doctors for comment was ‘inadmissible’, that meant that their respective evidence to court should therefore be disregarded. By example, he particularly referred to Dr Gilpin’s evidence. Dr Gilpin admitted that he had watched all of the videos (as did all the other professional witnesses called to give evidence at trial including the plaintiff’s own medical witnesses) which had included lengthy footage taken of a car from behind, which he presumed was being driven by the plaintiff. That submission overlooks the following important matters. [92] Firstly, a fair reading of Dr Gilpin’s evidence is that very little weight or regard was placed by him on that particular video. Indeed, the plaintiff had already admitted during his own evidence that he had in fact been driving the same vehicle the day before as was evident by the footage tendered and that he had been doing it most days in order to pick the children up or to ‘exercise’ his arm/shoulder. Secondly, Dr Gilpin’s main focus was the footage taken closer to his consultation with the plaintiff, that being the December 2010 footage. The plaintiff submits that Dr Gilpin only relied on one particular incident in that video, namely the petrol station pump event and therefore the opinion which he gave on this issue should be ignored. [93] I am unable to accept that submission. Dr Gilpin is an Upper Limb Specialist with extensive medical experience in his field. I have no reason to reject Dr Gilpin’s opinion when he stated that that incident alone could enable him to state categorically that the plaintiff did not at that stage have a frozen shoulder. He made particular reference to the elevation that he noted the plaintiff was able to perform. Dr Wallace on the other hand initially didn’t even see it when he viewed the videos and even after he did, still made no comment to the court regarding whether he believed the plaintiff still had a frozen shoulder at that point or not. I therefore have no reason to reject Dr Gilpin’s opinion. Regardless, there was other available medical evidence which suggested that the plaintiff’s frozen shoulder should have resolved by that date in any event. Other orthopaedic specialists who had examined him much earlier were of the view that a frozen shoulder generally resolves within 18 months or even less. The plaintiff had initially been noted as suffering from the condition around August 2008. There was no available evidence to conclude that the plaintiff was in fact suffering from a frozen shoulder after the 2 December 2010. The weight of the earlier medical evidence available for consideration in any event would suggest otherwise. -- 24 of 42 -- 25 [94] Notwithstanding this finding, I find that the video surveillance evidence taken as a whole does not automatically lead to a conclusion that the plaintiff had been deliberately untruthful in his account to them or that he was deliberately malingering when he was presenting himself to the various doctors for assessment. [95] Many of the earlier doctors had already noted abnormal illness behaviour or functional overlay or indeed suspicion on the part of the plaintiff himself regarding any proposed treatment and the risk of hurting himself well before that video was even taken. Dr Vecchio noted for example in one of his reports (date of examination being in June 2009 – ex 49 p 3) that the protracted period of rehabilitation had be thwarted by slow progress and deliberate immobilisation by the plaintiff (wearing a sling voluntarily in order to avoid what he perceived would otherwise result in pain) which was possibly due to have arisen as a result of difficulty in explaining to the plaintiff that movement is beneficial for the condition of frozen shoulder. That same observation had been also made by Dr Vecchio in his earlier report ex 38 at page 6 provided in October 2008 who had advised WorkCover that the plaintiff ought to be given this advice through an interpreter. Dr Maroney also noted functional overlay in October 2008 as did Drs Ballenden in November 2009.Drs Robinson, Gilpin and Wallace insofar the latter specialists all noted that he was difficult to examine. Dr Gilpin also noted some functional overlay which he agreed during cross examination could be explained in the context of the plaintiff suffering from a psychiatric illness at the time he saw him. [96] This behaviour and clinical presentation however to the various doctors is in my mind also consistent with the plaintiff having developed the onset of a psychiatric illness which Drs Whitford and Byth both agreed had its’ origin in the context of the plaintiff having suffered a physical injury which had become debilitating. The available medical evidence shows that the presentation of any abnormal illness behaviour and/or functional overlay noted by the various doctors appears to have only arisen around the time the plaintiff was first diagnosed with the secondary condition of frozen shoulder about August 2008. It is therefore open on the evidence to conclude that the plaintiff’s ongoing presentation after that point to the various doctors who examined him was consistent with him having developed a psychiatric illness which had remained untreated. [97] Accordingly, even after having regard to the video surveillance evidence and the presentation and clinical observations made by the various doctors regarding any abnormal illness behaviour or functional overlay, I am satisfied on the balance of probabilities that the plaintiff was suffering from a psychiatric condition, the genesis of which was as a consequence of the injury which he had suffered on 14th February 2008. This is not to say however that any ongoing physical or psychiatric incapacity can however be solely attributed to that injury having been suffered. I shall deal with this issue more fully in my reasons regarding any assessment for damages. [98] Accordingly, insofar as the plaintiff’s credibility, I do not find having regard to the whole of the matters raised for careful consideration on the evidence that the plaintiff overall was a singularly unreliable witness or that he had been deliberately untruthful to this court or to the various doctors who have examined him in order to advance his interests in relation to the current litigation. I am cognisant of the helpful guidance provided by Justice Muir regarding the acceptance or rejection of a witness’ credibility set out at paragraph [60] in Suncorp Metway Insurance Ltd v -- 25 of 42 -- 26 Kilner [2013] QCA 42 when coming to my ultimate conclusion in respect of this plaintiff and have set out my reasons accordingly Failure to mitigate loss [99] It is well accepted law that a plaintiff in a claim for damages for personal injury has a duty to take all reasonable steps to mitigate the loss he suffers consequent upon any proven breach. There appear to be no doubt that the principle that requires reasonable action to avoid loss does oblige a plaintiff in appropriate circumstances to undergo medical and rehabilitative treatment. The reasonableness of a refusal to undergo particular medical treatment must be looked at in the light of the plaintiff’s own circumstances and not from that of medical advisers.1 Therefore, the reasonableness or otherwise of a refusal depends very much on what a plaintiff know of and understands about the treatment, its risks and possible benefits, and consequences of not undergoing it. Factors relevant to this consideration include a mental condition, not understanding the language in which advice is given if no interpreter is present, the plaintiff’s cultural background and any experience of the plaintiff of undergoing previous medical treatment. [100] The available evidence at hearing supports a conclusion that initially the plaintiff continued to wear a sling even after being told by medical practitioners not to do so (a fact particularly important insofar as his recovery in respect of his frozen shoulder). He had also been advised by Dr Maroney to discard the sling on the 22nd August 2008. He continued to wear it notwithstanding, a fact noted by the Catalyst Injury Management (physiotherapy group) on 10th September 2008. He was still using it on 20th October 2008 when Dr Vecchio saw him. He also presented to Dr Wallace on the 5th July 2010 wearing a sling though on the subsequent occasion on the 25th August 2011 he was not. Dr also presented to Dr Ng on 26th July 2010 wearing a sling. However, a careful examination of the Catalyst Injury Management records (ex 114 – 117 p 262) also shows that the ‘restriction and conditions relating to week 1’, wk commencing 11th September 2008 included wearing collar and brace as needed (that is, a sling), that during the subsequent weeks he was to exercise out of the sling (supervised) and/or wear the collar as advised by physiotherapist. In November, those records also reveal that it was only at that point that he was advised not to wear a sling during work. In 2009, the suitable duties programs reveals no mention of the sling or collar but nevertheless continued restrictions recommended included limited use of his left hand or shoulder when performing work tasks. The persistence of the plaintiff in wearing a sling in my mind must be considered against the observations made by Dr Vecchio in exhibit 49, p 3 and ex 38, p 6 insofar as the need to ensure that the plaintiff was told in his language that movement was beneficial for the condition of frozen shoulder. It must also be viewed against the development of a mental condition which the plaintiff was suffering as a consequence and the fact that the plaintiff had not suffered from such a condition before. [101] The plaintiff also failed to attend certain medical or rehabilitative appointments. He failed to attend appointments with Dr Cho, Physico Physiotherapy where it was noted that he was non compliant with his home exercise program (ex 62 p156). He also failed to attend one appointment arranged with Dr Robinson. The plaintiff 1 Harold Luntz, Assessment of Damages for Personal Injury and Death (LexisNexis Butterworths, Australia, 4th ed, 2002) 127. -- 26 of 42 -- 27 stated he had attended for hydrotherapy treatment however, a fact confirmed by ex 9 p 31. Again, the same considerations in respect of these failed appointments and the like also apply. [102] I am therefore unable to conclude that the plaintiff had failed to mitigate his loss. Quantum [103] The plaintiff was 49 years old when he was injured. He stated that he had intended to keep working at the defendant’s business and that he hadn’t intended to retire. He stated that he had been of good health prior to his injury in that he had not suffered any other injuries. He stated he had no problems with his shoulder prior to the injury at work. He described the effects which the injury has had upon him. That included not feeling very strong like he used to be and stating that psychologically he didn’t feel good. He stated that he used to be a happy person who would do things together with his children and his wife but now he gets really angry and moody (T1-109). He stated that he also use to do the cleaning up jobs around and inside the house and play volleyball on the weekends, the latter he can no longer do (T1-106). He stated that he had however tried to do outside work since his injury such as mowing and cleaning the rubbish like before, but that it was not the same. He stated he was unable to do the mopping anymore. He also stated that he tries to drive the car because his doctor suggested he should try but that he still feels pain with his shoulder (T1-107). [104] He stated that he had taken pain medication after he had suffered his injury but could only remember taking Panamax 3 times a day ever since his doctor had told him to take it (T1-112) and Voltaren twice a day since he was injured. He recalled taking other medication prescribed by his doctor but was uncertain about the names (T1-104). The plaintiff confirmed during cross examination that he would however go back to the doctor to get more, particularly as it related to Endone and Panadeine Forte (T4-3). He gave evidence that Dr Cherian had first prescribed them to him on the 14th February 2008 and that he would also get them from his general practitioner Dr Sundram once a week (T4-6). [105] The plaintiff also conceded under cross examination that he did not consult with Dr Sundram during the period 14th February 2008 until the 26th July 2008 which was the first time he had seen her regarding his injury (T4-7). The plaintiff also conceded under cross examination that he did not consult with any doctor during the period 14th February 2008 and 20th July 2008 regarding his shoulder even though he had attended on several doctors during that period for other ailments (T4-18). Indeed, the plaintiff’s evidence was that he believed his wife (who could speak English) would always tell the doctors the reasons as to why he was in pain, because of his shoulder (T4-20). In respect to his consultations with Dr Mahadeo (T4-22) during June 2008, the plaintiff said that the reason nothing was said about his shoulder during the consultation relating to his cold was that he hadn’t gone there because of his shoulder. Mrs Tauve Fetu – the plaintiff’s wife [106] Mrs Fetu gave evidence with the assistance of an interpreter even though she had learnt English at school in Samoa. She confirmed that her husband had completed -- 27 of 42 -- 28 domestic chores inside and outside the home before his injury. She also stated that he had been a happy, healthy, strong man. [107] She recalled him coming home early from work on the 13th February 2008 before 11am. She asked him what had happened and he said he had had an injury at work. The next day she accompanied him to work and together they then went with Shane to the doctor at Inala (‘Dr Cherian’). She stated that she observed Shane speaking to the doctor and she heard Shane mention the word ‘hoist’ to him when the doctor asked how the plaintiff had been injured. She again confirmed this evidence in cross examination. She also remembered the doctor telling Shane to let her husband have two weeks off work. She also confirmed this evidence again during cross examination. She also rejected the suggestion put to her that she had not gone to the doctor with Shane and her husband at all. [108] She said that during the two weeks he had at home, she observed that he was unable to finish things that he started such as vacuuming, making food and the like. Mrs Fetu gave evidence that her husband only now manages some domestic tasks at home. In effect, her evidence was that he starts a job but rarely finished it. [109] Mrs Fetu also gave evidence that after her husband had eventually returned to work after being off during that two week period, she had to call Shane on many occasions and let him know that the plaintiff wasn’t able to manage coming in to work (T5-26). She stated she had done this many times prior to the plaintiff finally attending at the Ipswich Hospital in July 2008. She also gave evidence that during the two weeks which the plaintiff was initially off from work, that during one of those weeks, one of their sons was in hospital and the plaintiff was spending most of his time up at the hospital near his sons’ bedside (T5-35) as she was unable to do it as she was at home caring for another child. She confirmed during cross examination that she had called Shane around this time to advise him that the plaintiff would be needed to be up at the hospital with her son and that she had got a medical certificate regarding her son’s hospitalisation at Shane’s request to verify this (T5-91). She also confirmed that the plaintiff had gone back to work before their son actually came out of hospital. (see ex 150 which shows that the plaintiff applied for further time off as unpaid sick leave as his son was still in hospital 23/08 – 9/3/08 which is not inconsistent with her evidence). [110] Mrs Fetu gave evidence that after the plaintiff went off sick in July 2008 after attending at the Ipswich Hospital, she had called Shane to tell him her husband was not able to manage to come into work (T5-36). She rejected the suggestion put to her that it was only at that time that she had first made contact with Shane regarding the plaintiff’s painful shoulder (T5-100). She confirmed that she then accompanied her husband and Shane back to the Inala doctor at which time Shane handed that doctor the workcover medical certificate which the plaintiff had received from the Ipswich Hospital (T5-40). It was put to her during cross examination that the doctor stated that ‘this isn’t work related’ at that time. She denied the suggestion made and the essence of her evidence on this point was that the doctor had said to Shane ‘what’s happened, its’ happened, he (the plaintiff) had an injury at work, you can pay him’ (T5- 109 -111). [111] She also gave evidence that she had purchased medication for her husband which included Endone, Voltaren cream, Voltaren, Panadeine Forte and Panamax. She recalled him taking painkillers during the period February to July 2008, and that he -- 28 of 42 -- 29 would take them when it got painful (T5-57). She later recalled that sometimes it would be three times a week or sometimes once a week. (T5-77) but not surprisingly, could not be anymore precise given the time which had since past. She also confirmed during cross examination that prior to taking her husband to the Ipswich Hospital on the 20th July 2008, the plaintiff had treated his painful shoulder by taking medication, massage by others and using a hot water bottle (T5-102). [112] During cross examination she was referred to ex 2 (Statement by plaintiff in support of Workers Compensation Application) where it stated that the date of injury was 14th February 2008. It was suggested that her evidence was unreliable because of its’ overall vagueness. However a careful reading of the whole of the statement supports a conclusion that it is more probable than not that the plaintiff did in fact injure himself on the 13th February 2008, consistent with his attendance upon Dr Cherian the next day. [113] I also find that I had no reason overall to reject Mrs Fetu’s evidence. While she was unable to provide with precision the type of medication her husband had been taking and the like, I did not find her to be a witness who was deliberately trying to mislead the court or be evasive. An overview of the medical evidence [114] As already indicated, the plaintiff initially saw Dr Cherian on the 14th February 2008. He was provided a workers’ compensation medical certificate (ex 11 page 70) relating to a strain L medial and suprascapular. The stated cause of injury was ‘lifting at work – iron fittings’. That certificate regarded the plaintiff as fit for suitable duties from 14th February 2008 to 20th February 2008. [115] Between the 20th February 2008 and 20th July 2008, the plaintiff attended upon several doctors. Dr Xu on 30th March 2008, 3 occasions with Dr Saleem 10, 15 April; Dr Mahaedo 23rd June; 9, 11 and14 July 2008. On none of those occasions was there a complaint recorded in respect of the plaintiff’s shoulder. It was only on the 20th July 2008 when he attended at the Ipswich Hospital that shoulder pain was reported and a workers compensation certificate given by the attending doctor, Dr Davidson (ex 18 p 82). A diagnosis of rotator cuff injury was made and a referral for physiotherapy was made. Dr Davidson considered that the plaintiff was not able to work up to 21st July 2008 and provided a medical certificate to that effect (ex 17 p 81). [116] On the 21st July 2008, the plaintiff attended upon Dr Cherian again. He noted a report of pain L scapular (ex 6 p 20). A medical certificate was issued stating that the plaintiff was unfit for work from 21st July to 22nd July 2008 inclusive (ex 12 p 76). The Goodna Family Medical Centre notes (ex 8 p 28 and 29) indicate that the plaintiff returned to Dr Mahaedo on 23rd and 24th July 2008 complaining of shoulder pain. A medical certificate was issued on the 23rd July 2008 indicating the plaintiff was unfit for duties 23rd to 25th July 2008 inclusive (ex 16 p 80). An x ray was obtained by Dr Mahaedo on that date and it showed early degenerative change in the acromioclavicular joint of the left shoulder (ex 19 p 83). [117] On the 26th July 2008 he attended upon his own GP, Dr Sundram at the Acmed Medical Centre complaining of left shoulder pain. She diagnosed rotator cuff tendonitis and referred him to Dr Moroney, O/S for opinion (ex 20 p 84). The notes -- 29 of 42 -- 30 of the Inala Medical Centre reveal that the plaintiff then attended upon Dr Nguyen on 28th July 2008. The notes reveal that he had ‘come in with his employer with WCQ off work due to his R shoulder’, ‘employer and patient has a dispute regard whether it is work related injury’. He returned to Dr Sundram on the 29th July 2008 where it was recorded that the plaintiff was in a lot of pain and was not fit for suitable duties (ex144 p 44). [118] Dr Maroney examined the plaintiff on the 6th August, 22nd August 2008 and again on 24th October 2008. He also prepared reports on each occasion. (ex 34 – 39). The essence of Dr Maroney’s opinion was that the plaintiff had suffered a left frozen shoulder and rotator cuff tear (after reviewing an ultrasound and MRI which showed age related degeneration at the acomioclavicular joint. There was also a supraspinatus tear noted on the ultrasound). He was uncertain if whether those conditions were consistent with the plaintiff’s description of cause ‘sudden jerking of left shoulder on machinery at work’. He also considered the plaintiff was able to return to work on light or alternative duties on 25th August 2008 (ex 37 p 103). On the last occasion when Dr Maroney saw him, he noted functional overlay as he had observed that the plaintiff continued to walk in with a useless left arm even though he had been back at work doing suitable duties. [119] The plaintiff then attended for physiotherapy treatment with Catalyst Injury Management on 10th September 2008 which Dr Maroney had recommended. It was noted he continued to wear a sling notwithstanding that Dr Maroney had advised him to discard it on the 22nd August 2008 (ex 42 – 47). [120] The plaintiff reported on that occasion that he could not dress himself, was assisted by his wife in all activities and that he could not drive. He stated he had difficulty in sleeping due to pain. On the 10th September 2009, Catalyst Injury Management provided a further report. On that occasion, it was noted that the plaintiff reported he could still do very little with his left arm and continued to keep it close to his side. He reported he was able to do most of his dressing but could still not drive though he had attempted to drive but due to pain had stopped. His sleep was better. He reported that his pain levels remained largely unchanged but that he had returned to work in order to ‘feed his family’. [121] Dr Vecchio, Rheumatologist had also examined the plaintiff on 20th October 2008 and 30th June 2009. Dr Vecchio noted on the first occasion he saw him that the plaintiff was still using a collar and cuff sling more or less continuously even though he recalled being told that it wasn’t advisable. [122] Dr Vecchio suggested no evidence of a tear after reviewing presumably the same ultrasound and MRI which Dr Maroney had seen. Dr Maroney’s opinion is to be preferred in light of his speciality. Notwithstanding, Dr Vecchio also noted degenerative changes of the AC joint similar to that of Dr Maroney. He thought the plaintiff had suffered an aggravation of his underlying pre existing condition with secondary adhesive capsulitis (frozen shoulder). He felt the correct diagnosis however was post traumatic left should-hand syndrome. He also thought the conditions which the plaintiff was suffering from would settle within about a year. [123] Upon review of the plaintiff on 29th June 2009, Dr Vecchio noted reported improvement from the plaintiff regarding his ability to use his left arm. He noted that the plaintiff reported he was able to perform most activities unaided, including -- 30 of 42 -- 31 dressing although he was still unable to drive. He also noted he had been working full time with restrictions relating to heavy manual work. He felt that any residual disability on examination noted was attributable to his frozen shoulder but that he anticipated that he would be able return to full normal duties by October 2009. [124] Dr Marchant, O/S saw the plaintiff upon referral from his GP, Dr Sundram several times during the period 29th October 2008 to 15th October 2009 (ex 50 – 61). His first impression was that he more likely was suffering from a frozen shoulder although he did think he may have also been some concurrent cuff pathology. He ordered an MRI and x ray which showed significant arthritic change in the AC joint. He injected the plaintiff’s shoulder on occasion which gave only temporary relief. He recommended surgical intervention due to the reported ongoing symptoms in relation to pain and decreased range of movement but this was rejected by WorkCover. Dr Marchant finally concluded in his report dated 20th August 2009 that he considered that a lot of the pain and restriction at that point was due to the degenerative change in the AC joint and shoulder joint which was not longer work related (ex 59 p 150). On the 19th October 2009, Dr Marchant also confirmed this view to WorkCover (ex 61 p154). He also considered that the plaintiff was more than able to continue to work full time doing suitable duties which he had been doing for the past 18 months (emphasis added) and that his condition was stationary and stable. [125] Dr Robinson (Orthopaedic Surgeon) was then asked to see the plaintiff upon referral from his GP, Dr Sundram. Dr Robinson examined the plaintiff during the period 21st October 2009 to 28th October 2010 (ex 65 to 70). Dr Robinson noted on his first consultation that the plaintiff was uncooperative in his attempts to check range of motion or strength around the shoulder region. An x ray ordered by Dr Robinson demonstrated degenerative changes of the AC joint but normal glenohumeral joint. On the second occasion he saw Dr Robinson on 31st August 2010, it was reported by the plaintiff that he had not returned to work since surgery to his shoulder. Dr Robinson was again unable to perform an examination because the plaintiff resisted movement. Dr Robinson noted that the MRI scan taken in August 2008 showed arthritis within the AC joint, glenohumeral joint and inflammation of the joint capsule. The subsequent review on the 7th October 2010 by Dr Robinson and his review of a more recent MRI taken 8/9/10 (p 172), showed degenerative changes within the AC joint, no significant surrounding synovitis and no significant injury to the rotator cuff. [126] As the plaintiff was continuing to complain of pain across the back of his shoulders and down the arm with episodes of numbness and pins and needles, he considered a MRI of his cervical spine to exclude pathology in that region. That MRI showed a significant, left sided disc protrusion which was narrowing the left C7 nerve root exit. Dr Robinson thought that it could be accounting for his continued neck, shoulder and back pain. Dr Robinson referred the plaintiff to Dr Albietz, Orthopaedic Surgeon specialising in adult spinal surgery, for a second opinion. No evidence however was made available at hearing on this issue. [127] On the 18th November 2009, Dr Ballenden, External Medical Officer examined the plaintiff for the purpose of an assessment of permanent impairment. Dr Ballenden noted that the plaintiff continued to report ongoing symptoms consisting of severe pain and loss of range of movement at the shoulder, pain in the elbow, complaints -- 31 of 42 -- 32 of pain and swelling of the forearm, difficulty with the use of the hand and ongoing disability due to the work related injury. [128] Dr Ballenden agreed with the prior specialist opinion in that the plaintiff had suffered an aggravation of a pre existing condition with secondary frozen shoulder. He noted marked abnormal illness behaviour and a deliberate resistance upon examination to passive movement. He also considered that the reported pattern of ongoing symptoms and pain was not consistent with the normal healing pattern in respect of a frozen shoulder. It was noted by Dr Ballenden that psychological intervention might well be required regarding the continued reported chronic pain not related to the frozen shoulder condition as Dr Ballenden considered that it should have been well out of the pain stage of the natural cycle at 19 months post injury. He assessed permanent impairment to be 6% upper extremity not whole person. [129] The plaintiff then saw several specialists for the purpose of medico legal reports, Dr Ng (Occupational Therapist); Drs Wallace and Gilpin (Orthopaedic Surgeons) and Drs Byth and Whitford (Psychiatrists). Each of those doctors provided reports and gave evidence at trial. All of the doctors were also given an opportunity to review the surveillance tapes taken of the plaintiff in December 2010 and May 2013 respectively. Dr Sundram, the plaintiff’s general practitioner, also gave evidence at trial. She was not asked to comment on the video surveillance footage which had been taken. [130] Dr Sundram, the plaintiff’s general practitioner, provided a report (ex143) and also gave evidence in the plaintiff’s case. Dr Sundram confirmed that she first saw the plaintiff regarding his shoulder injury on the 26th July 2008. The clinical records tendered (ex 144) confirm that the plaintiff had been a patient since 9th February 2001. The records also confirm that the last time the plaintiff saw Dr Sundram prior to the 26th July 2008 was the 24th June 2006 and that at no stage during that period had he consulted with her. Dr Sundram’s evidence at trial [131] Dr Sundram was questioned in relation to her referral letter to Dr Moroney (Orthopaedic Surgeion) (ex 20 p 84). She confirmed that ‘he did not make a report’ (to his employer regarding the injury) contained in that document must have meant that the plaintiff had told her that fact (T2-72) although she did say that he may not have understood her when questioning him. She conceded however she had made no note to that effect. Dr Sundram confirmed the history provided to her by the plaintiff during her consultation on the 26th July 2008. She said during her evidence that he had told her he had seen another doctor, given time off, was sent back to work, had time off, and kept working, because he was told its’ either he worked or he had no job (T2-73). [132] Dr Sundram was also referred to the WorkCover certificate she issued that day (ex 21 p 85). She stated that she had been told by the patient that he had an exacerbation occurring on the 8th July 2008. She said that the plaintiff’s wife told her that he had a cold and it was from just before that, that his pain got worse again. (3-26).When Dr Sundram was provided the plaintiff’s work history as outlined in ex 150, she stated that she had been told by his wife that he was not free of pain during the period 14th February 2008 to 26th July 2008 (T3-27). Dr Sundram was also referred -- 32 of 42 -- 33 to her letter of referral to Dr Robinson (Orthopaedic Surgeon) (ex 29 p 94). Nothing turned on that letter. [133] An entry in the clinical notes (February 1 2011, p 37) also records that the plaintiff told Dr Sundram that he had been trying to do jobs at home but couldn’t do it for long. Dr Sundram notes indicate that she had encouraged him to keep it up as exercise was good for healing and that he should keep trying. A further entry recorded on 7th December 2010 also confirms that the plaintiff continued to complain of pain but that he was advised again by her to keep trying and do light chores around the home as part of his exercise. Dr Lee Ng’s evidence at trial [134] Dr Ng, Occupational Therapist provided a report (ex 141) and gave evidence in the plaintiff’s case. [135] Dr Ng had examined the plaintiff on the 26th July 2010. He confirmed in his evidence that he found the plaintiff to be quite disabled on that date and that he appeared to be in pain. He noted he had presented wearing a sling. Dr Ng was shown the footage taken in December 2010 (ex 138). He considered that the plaintiff appeared to be more able to freely move than he was when he had presented to him at his assessment in July 2010. He also felt that some of the movements performed by the plaintiff in that footage (the subject of the still photographs) was certainly unusual as it would not expect there to be such a recovery to that degree from when he had seen him. He stated that he had been unable to complete an adequate assessment of his shoulder in July 2010 because of the pain (T3-5). [136] Dr Ng was also provided the plaintiff’s work history as outlined in ex 150 for comment. Dr Ng considered that it was certainly peculiar, in that it was not your typical flow of events when having regard to the injury report in February 2008 with respect to his assessment in July 2010 (T3-8). However Dr Ng clarified this point. He stated that there may have been many reasons why he completed his normal duties during the period outlined in ex 150, such as he may have been working and putting up with pain. Notwithstanding, Dr Ng still considered that if that work history was in fact true, then compared to how he presented at assessment, it was still unusual (T3-9). [137] Dr Ng confirmed during re examination that in light of the footage he had viewed, it did appear that he had greater function than he had assessed and as such, given some vocational rehabilitation, he felt that he may be able to return to some lighter form of unskilled work, where he could work in a factory and the like (T3-10). This would be the case, even after taking into account his limited grasp of the English language. He did not consider however that he was capable of returning to his pre- injury position. The Orthopaedic Evidence [138] Dr Gilpin examined the plaintiff on 19th July 2011. His report was marked as an exhibit 74. He was called to give evidence in the defendant’s case. -- 33 of 42 -- 34 [139] He reported to Dr Gilpin that he needed assistance from his wife to help wash himself and some assistance in dressing. He stated he was unable to do any household chores such as washing up and household cleaning but can hang the washing out and take the rubbish out if he uses his right hand only. He indicated that he couldn’t drive but did say he did occasionally drive the automatic car. He also said he could assist with the shopping but only used his right hand. [140] Upon examination, Dr Gilpin noted resistance to attempts by him to undertake passive testing. Dr Gilpin noted he had exhibited significant pain behaviours. Dr Gilpin opined in his report that given the observed illness behaviours and the inconsistencies between the only objective findings such as muscle bulk and x ray findings taken on 19th July 2011 which showed evidence of AC joint osteoarthritis, he concluded that he considered there were significant nonorganic factors contributing to the ongoing physical disability that the plaintiff was suffering. [141] His conclusion in his report was that the plaintiff had suffered a minor rotator cuff injury (an aggravation of a previously asymptomatic rotator cuff tendinopathy) and may have developed secondary frozen shoulder. However, he considered that given the observed illness behaviours and the inconsistencies between the only objective findings such as muscle bulk (normal) and x ray findings (showing unrelated pre existing pathology without tear to the rotator cuff), that significant nonorganic factors were clearly contributing to the ongoing physical disability that the plaintiff stated he was suffering from. He also felt psychological profiling was recommended in the circumstances. Dr Gilpin considered that the pattern of the presentation of the plaintiff having had a strain of his rotator cuff and may have developed a frozen shoulder as a consequence was somewhat inconsistent with those pathologies particularly as it related to the claimed physical disabilities on the part of the plaintiff. Dr Gilpin also considered in his report that if the plaintiff was continuing to physically have ongoing cuff problems however, then it would be appropriate that any form of manual work did not involve use of the arm out or above chest height. However, he did not find any strong objective evidence to support a conclusion that the claimant’s physical condition alone would affect him working until normal retirement age. [142] Dr Gilpin confirmed the opinions expressed in his report again during the course of his evidence to the court. However, Dr Gilpin stated that after having reviewed all of the DVD surveillance tapes, especially the one taken in December 2010 that he could now say categorically that the plaintiff did not have a frozen shoulder on the 3rd December 2010. Dr Gilpin stated that the DVD showed the plaintiff elevating his shoulder to 160 degrees in order to lift the petrol hose in order to fill the car. He also stated that the plaintiff’s level of function in his left upper limb was certainly greater than the plaintiff had portrayed to him when he had seen the plaintiff in July 2011. Dr Gilpin therefore felt that even though he couldn’t categorically exclude the plaintiff from having a rotator cuff problem after having regard to those DVDs, he stated that he still considered nevertheless that the reported effect of any rotator cuff problem to him during his consultation with the plaintiff was far less than he had led Dr Gilpin to believe. [143] During cross examination, Dr Gilpin was asked whether the abnormal illness behaviour observed during his clinical examination might well be explained by the plaintiff having suffered an untreated secondary psychological injury as a consequence of his physical injury. Dr Gilpin was willing to accede to the opinions -- 34 of 42 -- 35 of Drs Byth and Whitford (their respective reports were not given to Dr Gilpin) and said that it could be an adequate explanation for the presentation he observed amongst others. [144] Dr Gilpin also confirmed during his evidence that he believed that the plaintiff was capable of returning to work physically as long as it didn’t involve the use of the arm at or above chest height. However, while Dr Gilpin was willing to accept that fact and that the plaintiff may well have suffered a minor rotator cuff injury as a result of the work related incident in 2008, he specifically qualified his opinion with reference to the imaging of the shoulder which other orthopaedic surgeons who had examined him had also reviewed, which did not show any significant injury to the rotator cuff itself such as a tear. Dr Gilpin stated in evidence that those investigations had revealed some tendinopathy in his shoulder consistent with age related degeneration typically found in a manual worker in the age group of that of the plaintiff and where no significant injury to the rotator cuff (such as a tear) was evident on imaging, then any reported ongoing physical inability to return to manual work could not be solely related to any injury suffered approximately 5 years earlier. (T 5-73 ). [145] Dr Wallace also examined the plaintiff for the purpose of a medico legal report on 5th July 2010 and again on 25th August 2011. He provided three reports which were marked as exhibits 147, 148 and 149 respectively. He gave evidence in the plaintiff’s case. [146] In his first report, Dr Wallace noted upon examination that the plaintiff remained severely limited by his left shoulder problems. He could not drive, dress himself or wash. He had help from his wife for most activities and had not been able to return to the workforce. He no longer engaged in his previous sport. Dr Wallace reviewed a variety of imaging investigations that had been performed. None of those investigations revealed any significant pathology other than degenerative changes in the AC joint and some pathology consistent with frozen shoulder. [147] He presented on the first occasion in a sling and resisted all movement of his left shoulder, both actively and passively. Dr Wallace considered that the plaintiff had suffered a soft tissue injury to his left shoulder which had progressed to develop into a frozen shoulder. He considered he had reached maximum medical improvement and should avoid wearing the sling. He was unable to say whether he had suffered a psychological injury. [148] In his second report, Dr Wallace noted ‘your client states that he remains disabled as in my previous report’. He noted during his examination on that second occasion, 25th August 2011 that the plaintiff was no longer wearing a sling. In his third report, the doctor’s opinion remained unchanged notwithstanding that he had reviewed documentation which had been forwarded to him which suggested that the plaintiff was able to drive an automatic car by September 2011, do some shopping, push rubbish bins, mow the lawn for short distances, lift up the garage door and push his mother in a wheel chair for short periods of time. [149] Dr Wallace was cross examined regarding his review of the DVD surveillance tapes. Dr Wallace explained that an explanation for the plaintiff’s ability to drive in December 2010, after telling that he was unable to drive at all when he first saw him in July 2010, might be readily explicable by his frozen shoulder getting better. Dr -- 35 of 42 -- 36 Wallace was also referred to the plaintiff lifting the petrol hose about his head to fill his car. He agreed that the plaintiff was clearly able to fully abduct his left arm at the shoulder. He confirmed that during his first consultation with the plaintiff when he had tried to examine him he had resisted all movements both actively and passively and that he hadn’t been happy with his clinical examination of him. Notably, Dr Wallace, significantly, did not at any stage during his evidence suggest that the plaintiff was still suffering from frozen shoulder at that stage (December 2010). [150] Dr Wallace was also taken to the entry in his 2nd report ‘your client states that he remains disabled as in my previous report’. A lot was made during cross examination on this issue. However, a careful reading of Dr Wallace’s 1st and 2nd reports confirm that the range of movement noted on the 2nd occasion during his examination of the plaintiff was improved from when he had first seen the plaintiff, a fact he again confirmed during his evidence (T3-81). Dr Wallace also referred to his clinical notes and noted that it only stated that he had only written the words ‘remains disabled’ and therefore it was his mistake in transcription as it appears in the report. He stated during his evidence that there was no history in his notes taken from the plaintiff or his wife regarding any ongoing reported disability to that effect (T3-84) and that what he had meant to convey was that the plaintiff remained disabled by his left shoulder. [151] Dr Wallace was willing to concede however that if he assumed that the reported disability reported to him on the first occasion (5th July 2010) had remained the same when he saw him again (25th August 2011), then the intervening DVD taken in December 2010 (showing the plaintiff driving etc) would likely mean that the plaintiff had in fact been untruthful to Dr Wallace regarding any ongoing disability (T3-89). The available radiological evidence [152] The investigations undertaken by x ray and MRIs since February 2008 of the plaintiff’s physical complaints collectively may be summarised as follows. Degenerative changes of the AC joint had consistently been noted. The orthopaedic specialists all appear to agree that this was pre existing and age related. The orthopaedic specialists agree that the plaintiff had more than likely suffered from adhesive capulitis (frozen shoulder) secondary to the trauma injury suffered to his shoulder. [153] Drs Robinson and Gilpin, both upper limb specialists, considered that there had not been any significant injury to the rotator cuff at all in that there were not any tears. Dr Maroney also did not see any significant tears of the rotator cuff tendons. Dr Marchant made no comment at all other than noting significant arthritic changes in the AC joint. Both Drs Gilpin and Wallace reviewed the MRI taken in 2008 (which had been ordered by Dr Maroney) and noted no significant pathology related to the rotator cuff. Dr Wallace considered the plaintiff was suffering from a soft tissue injury only (degree and extent unknown as he gave no evidence on this specifically or in respect of whether the plaintiff had suffered a rotator cuff injury or not) which had progressively developed into a frozen shoulder. [154] Dr Wallace made no specific comment regarding whether the plaintiff could in fact still have had a frozen shoulder even in December 2010, whereas Dr Gilpin -- 36 of 42 -- 37 emphatically stated in evidence that any such condition had categorically resolved by then in light of the plaintiff’s ability to fully elevate his arm to 160° degrees (as shown in the tape when filling up the car at the petrol station). The plaintiff submits that the general thrust of Dr Gilpin’s evidence was that even though he considered the plaintiff no longer suffered from a frozen shoulder as at December 2010, he nevertheless had accepted that the plaintiff may have suffered from a minor rotator cuff injury in any event. The plaintiff referred to parts of Dr Gilpin’s evidence where he stated that if he was the plaintiff’s treating doctor he would recommend against him performing heavy manual activities with his arms in elevation and that it would be unadvisable for the plaintiff to return to his pre injury work activities. The plaintiff refers primarily to this evidence and the evidence of Dr Ng as a basis for the award for damages for economic loss (past and future) related to the physical injury suffered, particularly if Dr Wallace’s evidence was not preferred by the court. [155] Those submissions however in my mind overlook the following important matters. While, it was accepted by Dr Gilpin that the accepted diagnosis had been one of rotator cuff disease (emphasis added) with a superimposed frozen shoulder (T5-63), he did not accept at any stage that the plaintiff’s ongoing physical inability to return to manual work could be solely related to any work related injury which he had suffered in February 2008. Dr Gilpin said as much in his evidence (T5-73). In fact Dr Gilpin’s evidence was that given the background of the identifiable pre existing degenerative disease which was seen in the plaintiff’s radiological investigations and noted by other specialists, that in the absence of any rotator cuff tear being evident, any work related injury which the plaintiff had suffered (minor injury as a result of the event of 13th February 2008 and the development of a frozen shoulder having resolved as at December 2010) could not be said to be solely responsible for the plaintiffs ongoing inability to return to manual work. That opinion is also consistent with the other medical evidence available. Drs Maroney, Marchant and Ballenden who had seen the plaintiff during 2009, all confirmed in their respective reports already referred to that any reported ongoing pain and/or physical disability at that time was more likely than not to be attributable to the underlying pre existing degenerative pathology or to other non organic factors and not as a result of any physical work related injury suffered. [156] Having preferred the evidence of Dr Gilpin to that of Dr Wallace because of the reasons already stated, I find that the plaintiff has not, on the balance of probabilities, proved that any ongoing physical incapacity to return to full-time manual work after December 2010 is directly related to the work related injury which he suffered in February 2008. This is particularly so having regard to Dr Gilpin’s opinion which I accept, that any secondary complication of that injury namely frozen shoulder had certainly resolved by late 2010. The radiological evidence available also supports the opinion of Dr Gilpin regarding any initial injury suffered as being relatively minor. Drs Vecchio and Marchant, who both knew about the plaintiff’s frozen shoulder at the time they examined him, nevertheless still considered that any ongoing physical disability could no longer be attributable to any work related injury suffered, and was as a result of his pre existing underlying degenerative disease or other non organic factors. They both considered that the plaintiff would have been able to return to his full time duties (no restrictions specifically required) by October 2009. Dr Ballenden was also of this same opinion as at November 2009. -- 37 of 42 -- 38 [157] Having regard to that evidence, I am therefore unable to be satisfied on the balance of probabilities that any ongoing physical incapacity to return to full time pre-injury work after December 2010 is as a direct consequence of the physical work related injuries which had been suffered by the plaintiff. The weight of the medical evidence already referred to does not support such a conclusion being made. This is particularly so, having regard to the weight of the medical evidence available, in circumstances where his frozen shoulder had clearly resolved by at least December 2010. I am also unable to be satisfied on the balance of probabilities, given the weight of the medical evidence also available, that any initial physical injury suffered by the plaintiff on the 13th February 2008 can now be said to be the cause for the plaintiff’s inability to return to full-time (pre-injury) manual work after December 2010 or indeed be responsible for any reported ongoing physical disability or pain as a consequence of that physical injury having been suffered by him. The Psychiatric Evidence [158] The plaintiff had received 6 psychological sessions under a Medicare Mental Health Care Plan after referral by his GP, Dr Sundram (ex 73 p173). The testing relating to pre intervention (9/7/2012) and post intervention (26/9/2012) revealed that there had been some reduction in symptoms reported by the plaintiff. Those sessions were for pain management and for depression. [159] Dr Byth examined the plaintiff on 4th June 2012. His report was marked as an exhibit 145. He was called to give evidence in the plaintiff’s case. He reported constant pain in his left shoulder. He told Dr Byth that his shoulder pain was worsened by most activities and he would mostly use his right hand, using his left hand just to guide or support things. He can do some domestic chores using his right hand. He stated he tries to do things if he can. He told Dr Byth that he could drive a motor vehicle provided it was automatic. He complained of depressed moods and anxiety along with low self esteem. He lacked usual energy and interest for housework and cooking. He lacked interest in going out and seeing friends, and did not want to go out although he used to enjoy company. He felt forgetful and impatient and less tolerant. [160] Dr Byth diagnosed an Adjustment Disorder with anxiety and depressed mood. That had developed as a consequence of the shoulder injury which he had suffered and his difficulty in coping with shoulder pain, insomnia and restriction of physical activity following that injury. Significantly, Dr Byth did not find evidence of Chronic Pain Disorder. He doubted that psychological factors were playing a part in his complaints of pain and physical impairment, as would be required for the diagnosis of Chronic Pain Disorder or other somatoform disorders. Dr Byth considered in his report that treatment over the course of 2 years at a cost of $6000 would likely make a partial improvement. He assessed his permanent impairment to be 22% of the whole person. [161] During cross examination, Dr Byth confirmed that he believed that the shoulder injury at work in 2008 and the resulting pain, insomnia and restrictions in physical activity had caused the plaintiff’s psychiatric condition. Dr Byth confirmed in evidence (also contained in his report) that the collateral evidence which he had available to him for consideration allowed him to conclude that the plaintiff had in fact suffered a shoulder injury. Dr Byth confirmed during his evidence that he had -- 38 of 42 -- 39 understood from the plaintiff that he had been injured, he had some time at home to rest, he had then had investigative tests done (ultrasound and x rays) and that he hadn’t been able to get back to any sort of continuous meaningful work after that (T3-51). Dr Byth also explained his clinical observations of the plaintiff and it appears to him that he was in a moderate amount of pain that he was trying to tolerate for the interview (T3-52). Dr Byth was then referred to the DVD surveillance tape of December 2010. He did not consider that the plaintiff looked to be in pain however he did say that he had not seen the plaintiff carrying items or the like with his left hand or him doing anything really heavy or repetitive with his left hand. Dr Byth was also asked about the May 2013 tapes which showed the defendant driving a manual van on occasion. Dr Byth however noted that those tapes had been taken sometime after he had seen him (nearly a year) and that he may have improved. [162] Dr Whitford examined the plaintiff on the 22nd November 2012. His report was marked as an exhibit 75. He was called to give evidence in the defendant’s case. [163] The history provided by the plaintiff to Dr Whitford, set out at page 7 of his report, regarding reported pain and the subsequent impact it had upon him was not dissimilar to that given to Dr Byth. Significantly, the plaintiff reported being socially withdrawn and not leaving the house as often. He reported still driving an automatic car and he is not able to assist his wife much with the care of the children or the housework. [164] It was clear from Dr Whitford’s report that he too, like Dr Byth, had reviewed a substantial body of collateral documentation which had been made available to him, set out in the body of his report. He noted that the first reference to mental health symptoms was at a consultation with Dr Sundram on 18th September 2009 in which it was noted that the plaintiff was depressed. Subsequent references again were made in 2010 and 2011 in Dr Sundram’s notes. Dr Whitford’s clinical observation of the plaintiff was also suggestive of significant depression but was so unusual as to need further assessment. Dr Whitford explained this during his evidence. That he felt that there was more going on than just the depression. [165] Dr Whitford, like Dr Byth, was also of the view that the shoulder injury and the resultant restrictions in recreational and vocational activities were significant in the onset of the adjustment disorder. He also considered however that it was likely there have been other factors which have maintained the adjustment disorder (emphasis added). Dr Whitford explained this during his evidence (T4-33). He stated that normally he would not have expected to see the level of impairment reported to him by the plaintiff as being as profound as it was for an adjustment disorder. Dr Whitford specifically referred in this regard to the reported social withdrawal, the plaintiff rarely leaving the house, his inability to assist his wife look after the children or do the housework. Dr Whitford explained that it was that level of reported significant impairment which made it clear to him even at examination (which he also noted was at odds with the DVD footage he later saw) that there was a lot more going on with the plaintiff in this case than was made clear to him (T4- 34). Dr Whitford elaborated on this issue during the course of his evidence. He stated that his clinical observations of the plaintiff during his consultation were best described as being so unusual that if that was his state at all times, then he would not have expected that he could have functioned in the community at all. Dr Whitford noted that the DVD footage which he had seen showed the defendant -- 39 of 42 -- 40 engaging in a range of activities outside his home, at shopping centres, interacting with others in an appropriate way, was unlike his interaction with him during consultation. [166] Dr Whitford confirmed during evidence that he relies on three major areas of information in forming an opinion: the history given by the patient, one’s own clinical observations of the patient’s behaviour and mental state and the use of collateral information which comes from other sources (T4-28). During cross examination he confirmed that if the plaintiff had suffered a significant physical injury then the adjustment disorder would be a secondary condition to that stated cause (T4-31). He was willing to accede to the collateral medical information and opinion of other practitioners made available to him regarding the general view that the plaintiff had suffered a physical injury. He did not however consider that the plaintiff’s adjustment disorder itself would have prevented the plaintiff from engaging in any type of remunerated employment even though it had not been ever properly treated. He also felt that the plaintiff’s condition was not stable in that he had not ever received appropriate treatment. He considered a treatment plan including 12 psychological sessions would be helpful. [167] It is accepted that the history provided by the plaintiff to Drs Byth and Whitford regarding the resulting impact and effects which the injury has had upon the plaintiff was relatively similar. It is also accepted that both Doctors had the same advantages during their respective examination of the plaintiff insofar as their clinical observations of him. The collateral documentation provided to both Doctors was extensive and each had performed a review of those documents in order to form their opinion. [168] Notwithstanding the Doctors’ having the same advantages, I consider the opinion of Dr Whitford ought to be preferred. Dr Byth properly gave regard to the collateral evidence provided to him for the purpose of determining whether they were consistent with the plaintiff’s stated physical injury at work and with the plaintiff having subsequently a need for treatment for anxiety and depression. Dr Byth unfortunately in doing so, wrongly understood Dr Ballenden’s assessment of permanent physical impairment from the shoulder injury to be 19%. Dr Ballenden had only in fact assessed it as 6% as being related to the work injury. This difference is obviously significant and one of significance to Dr Byth in forming his opinion. [169] Dr Byth also noted at page 10 of his report under social and recreational activities – ‘Class 3, moderate impairment, rarely goes to social events; does not want to go out to socialise and has been avoiding seeing people; will not go out without a support person, not actively involved, remains quiet and withdrawn’. Unlike Dr Whitford, Dr Byth did not make any specific comment regarding that particular history compared to what was shown on the surveillance tapes which he had also viewed, which clearly showed the plaintiff engaging and interacting normally with others, going out on his own and performing tasks such as shopping. All matters which are of significance when forming a psychiatric opinion (history provided by patient regarding the impact the illness was having upon him). [170] Dr Whitford in my view however clearly gave more obvious consideration to these matters in that he had particular regard to the plaintiff’s behaviour in social activities when he watched the surveillance tapes in order that a comparison could -- 40 of 42 -- 41 be made to the clinical picture which he had observed of the plaintiff and the history he had been given. Dr Byth, on the other hand, did not make any comment during his evidence regarding the moderate impairment which he had evaluated as a result of his consultation on these issues in comparison to what is seen in those tapes as observed by Dr Whitford. Dr Byth was more focused during his evidence regarding the plaintiff’s physical ability to perform tasks seen in the DVDs rather than whether or not the history of reported ongoing psychiatric disability given to him by the plaintiff had in fact been a correct one or was at odds with the history he had been provided. As such, I prefer the opinion of Dr Whitford. [171] Having done so, it follows that I accept Dr Whitford’s opinion insofar as that any psychiatric disorder which the plaintiff was suffering did not in itself prevent the plaintiff from engaging in his employment, whether treated or otherwise. Dr Whitford said as much in his report and again in his evidence. As such, I cannot be satisfied on the balance of probabilities that any ongoing disability to return to work is attributable to any psychiatric injury the plaintiff may well have suffered as a consequence of any work related physical injury. [172] Notwithstanding, I consider that the treatment proposed by Dr Whitford which will assist the plaintiff in his recovery is not unreasonable, having regard to the fact that the plaintiff has suffered a psychiatric condition which had not been adequately treated to date. As such, an allowance for the recommended medication for 6 months in my mind ought to be made together with an allowance for the recommended 12 sessions of psychological counselling as proposed (ex 75). Accordingly, I calculate damages as follows, General damages2 $35,000 Interest calculated on ½ at 2% $2,030 Past economic loss 14.2.08 – 26.7.08 (1 week x $640) $640 26.7.08 – 21.10.09 (65 weeks x $640) $41,600 22.10.09 – 2.12.2010 (58 weeks x $640) $37,120 $79,360 Loss of past superannuation (9%) $7,142 Interest on past economic loss3 $8,416 Future economic loss $nil Special damages4 $600 Interest on out of pockets5 $434 2 rotator cuff strain with frozen shoulder (resolved), adjustment disorder 3 5% of PEL (less workcover refund of $8243 and Centrelink at 1 year at $11,000 = $19,243) x 2.8 years 4 no decisive evidence therefore allowance of $200 x approximately 3 years (February 2008 – December 2010) 5 5% x 2.8 years of $3,100 -- 41 of 42 -- 42 Future expenses6 $1,107.12 Fox v Wood $1,010 Less WorkCover refund $24,234 TOTAL $110,865.12 6 medication $253.92 and 12 counselling sessions $853.20 -- 42 of 42 --