IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
SERIOUS INJURY LIST		

Case No.  CI-20-04836

Craig ANTONY Bennett	Plaintiff	
		
v		
		
Victorian WorkCover Authority	Defendant	

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JUDGE:	His Honour Judge Misso	
WHERE HELD:	Melbourne	
DATE OF HEARING:	3, 4 and 5 November 2021	
DATE OF JUDGMENT:	29 November 2021	
CASE MAY BE CITED AS:	Bennett v Victorian WorkCover Authority	
MEDIUM NEUTRAL CITATION:	[2021] VCC 1863		

REASONS FOR JUDGMENT
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Subject:	Accident Compensation	
Catchwords:	Serious injury – injury the right shoulder in compensable circumstances – concurrent medical condition affecting the lower back – whether consequences contributor to by both – credit of the plaintiff – whether the consequences were “serious”	
Legislation Cited:	Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s335(2)(d)
Cases Cited:	Garcia v Transport Accident Commission [2015] VCC 140; Transport Accident Commission v Garcia [2015] VSCA 225; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Jones v Dunkel (1959) 101 CLR 298; Ingram v Ingram [1996] 2 VR 435; Baker v Transport Accident Commission [1997] 1 VR 662; Richards & Anor v Wylie (2000) 1 VR 79; Taylor v Victorian WorkCover Authority [2021] VCC 962
Judgment:	The plaintiff’s originating motion is dismissed.
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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Ms N Wolski                         	Shine Lawyers	
			
For the Defendant	Mr L Howe                             	Hall and Wilcox Lawyers	

HIS HONOUR:

1	The plaintiff commenced employment with Regency Plaster Pty Ltd (“the employer”) on 6 October 2016.  He was employed as a maintenance plasterer.  That work required repetitive use of his arms in undertaking a variety of manual tasks, but principally in undertaking plastering work using the relevant tools.  It is not necessary to describe his work in more elaborate terms because the defendant admitted that the plaintiff suffered a compensable injury in the course of his employment with the employer.
2	The plaintiff suffered a large rotator cuff tear which required surgery, and subsequently it developed into what has been described as a “Popeye” deformity resulting from a rupture of the long head of the biceps which I will refer to in greater detail later in these reasons.  The plaintiff submitted that he has suffered an impairment of the function of his right shoulder with pain and suffering consequences which are serious, and, additionally, a permanent serious disfigurement of the right upper arm produced by the Popeye deformity.
3	The defendant admitted that the plaintiff has suffered a compensable injury.  It submitted that the consequences contended for by the plaintiff are not “serious”, and that the disfigurement is not “serious”.
4	Ms N Wolski of counsel appeared for the plaintiff.  Mr L Howe of counsel appeared for the defendant.
The Plaintiff’s medical treatment
5	The manual work tasks performed by the plaintiff resulted in him suffering pain in his right shoulder in late November 2018.  He saw Dr Adil Al-Hobaish, general practitioner, at the Danaher Drive Medical Centre, who organised for him to undergo an ultrasound and x-ray, which were performed on 23 November 2018.  No impairment of the rotator cuff was noted.  In any event, the plaintiff continued working without the need to take any time off or pursue any treatment.
6	The plaintiff continued to experience intermittent discomfort in his right shoulder.  On 24 January 2019, and in the course of performing his usual work tasks, he experienced a burning severe pain in his right shoulder when assisting a delivery driver to remove plaster sheets from a truck.  The plaintiff then saw Dr Ann Salam, general practitioner, on 15 February 2019, who organised for him to undergo an ultrasound of his right shoulder which disclosed that he had suffered a tear of the rotator cuff.  The plaintiff continued working until March 2019, and was then absent from his employment until September 2019, when he returned to work with the employer on light duties.
7	The plaintiff then had episodes of conservative treatment, no doubt in the hope that it would aid the repair of the rotator cuff, and would reduce his pain and restriction of movement, and assist him in returning to work and increase the function in his right shoulder.  Unfortunately, for the plaintiff, none of the treatment achieved those results.  He had an ultrasound-guided injection into his right shoulder on 7 March 2019.  He was referred to have an MRI scan on 7 March 2019, which confirmed a complete disruption to the supraspinatus tendon with retraction of the tendon ends and an upward migration of the humeral head, a larger effusion extending into the subacromial bursa with moderately severe acromioclavicular arthropathy and some subscapularis tendinopathy and partial-thickness tearing. 
8	Dr Al-Hobaish referred the plaintiff to Mr Roger Westh, orthopaedic surgeon, who saw the plaintiff on 15 April 2019.  In his courtesy letter to Dr Al-Hobaish dated 15 April 2019, he appears to have agreed with the appearances on the MRI scan, and referred the plaintiff to Mr Shane Blackmore, orthopaedic surgeon, for consideration of a surgical repair of the rotator cuff.
9	The plaintiff first saw Mr Blackmore on 23 April 2019.  He wrote a number of courtesy letters, dated 23 April 2019, 14 June 2019, 16 July 2019 and 1 October 2019, which describe his diagnosis, recommendation to the plaintiff that he undergo surgery and the results of the surgery.  He agreed with the appearances on the MRI scan.  He considered that the plaintiff required surgery to repair the rotator cuff, the biceps tendon and his acromioclavicular joint.  He performed that surgery on 27 May 2019.  He described it as a right shoulder arthroscopy, subacromial decompression and bursectomy, distal clavicle ostectomy, rotator cuff repair and subpectoral biceps tenodesis.  It would appear that the long head of the biceps was identified and reduced from the position of retraction. 
10	The plaintiff saw Mr Blackmore subsequently.  He advised the plaintiff to do away with the sling after six weeks post surgery and to focus on motion exercises.  He advised the plaintiff to have physiotherapy for that purpose.  When he last saw Mr Blackmore on 1 October 2019, Mr Blackmore considered that the plaintiff had progressed extremely well post surgery and had a full range of motion and almost full strength in his right shoulder.  He described his symptoms as minimal, and that the plaintiff had, by that stage, returned to work.
11	Dr Al-Hobaish provided a report dated 26 January 2020 which adds very little.  He last saw the plaintiff on 11 July 2019.  He expected that the plaintiff would experience exacerbations of pain in the future, and that his return to work needed to be considered carefully.  In any event, his cautionary note was overtaken by the fact that the plaintiff returned to work on light duties in September 2019 and then to full-time duties by December 2019; however, the plaintiff continued to experience exacerbations of his right shoulder symptoms and pain at the end of the working day.  
12	Dr Somayeh Fallahnejadnasrabadi, general practitioner, referred the plaintiff to have a further ultrasound, which was performed on 29 July 2020.  It would appear that the ultrasound became necessary because the subpectoral biceps tenodesis failed, resulting in the Popeye deformity.  The radiologist reported that there was no recurrent tear of the supraspinatus tendon, but there was no visualisation of the proximal long head of the biceps tendon.  
13	Dr Ahmed Cassim, general practitioner, referred the plaintiff to have a further ultrasound, which was performed on 7 September 2020.  The radiologist reported much the same appearances as were found on the ultrasound of 29 July 2020.
The medico-legal assessments
14	There are no other reports of any of the plaintiff’s treating medical practitioners after the last report of Mr Blackmore, and the subsequent ultrasounds.  The remaining medical reports are from medico-legal consultants.
15	Mr Ash Chehata, orthopaedic surgeon, examined the plaintiff on 2 February 2021, and provided a report dated 3 February 2020.  He re-examined the plaintiff on 31 May 2021, and provided a report dated 8 June 2021.  
16	Dr Timothy Wood, sport and exercise medicine physician, reviewed clinical records which he was provided by the defendant, and provided answers to a number of questions in a report dated 8 October 2020.  He examined the plaintiff via videoconferencing on 5 October 2021, and provided a report bearing the same date. 
17	Mr John Salmon, orthopaedic surgeon examined the plaintiff via video conferencing on 19 October 2021, and provided a report bearing the same date.
18	There is no material difference in the opinions expressed by Mr Chehata, Dr Wood and Mr Salmon.  They accepted that the plaintiff was experiencing ongoing symptoms in his right shoulder.  They understood that he had changed jobs and was working for Castella Quarries driving a dump truck and performing work tasks in plant maintenance.  Mr Chehata considered that the plaintiff’s prognosis was quite good.  Neither Dr Wood nor Mr Salmon provided an opinion inconsistent with the opinion expressed by Mr Chehata in relation to prognosis.  None of them expressed an opinion that the work the plaintiff has undertaken is not suitable.
Disfigurement 
19	 I viewed the plaintiff’s right upper arm while the plaintiff was in the witness box, and at close range in the company of counsel.  The plaintiff removed his jacket and t-shirt, exposing his naked upper torso.  He was asked to position his arms at various angles, and to rotate his torso for the purpose of demonstrating the deformity to his right upper limb.  Whilst it is difficult to describe what I saw, I think the following captures the aspects of the deformity relied upon by the plaintiff.
20	The plaintiff placed his arms beside his body and rendered them slack.  In that position I was able to observe that the bicep muscle on his left arm has normal contours, and when compared with his right arm, it was evident that there was a dip between the normal contour of the bicep and the point of the shoulder, with the bicep bulging upward.
21	The plaintiff next raised both of his arms so that his upper arm was extended out from his body horizontally, with his forearm in a fully vertical position.  He did not flex his bicep.  It remained slack.  In that position, the dip in the normal contour of the bicep was all the more evident.  Observing his right arm in that position allowed me to understand why the deformity is described as a Popeye deformity, named after the popular cartoon character who had very prominent biceps with a big dip between the bicep and the tip of the shoulder.
22	During the view, the plaintiff described some movement of the bicep toward the back of his arm when he exercised the musculature of his upper arm.  I was able to detect some movement, but it was subtle.
23	The plaintiff next rotated his torso to the left and the right with his arms placed beside his body with both of them slack.  The dip between the normal contour of the bicep and the point of the shoulder was evident.
24	The impression I was left with was that the deformity was evident when the plaintiff’s arms were raised, but less so when his arms were placed beside his body with both of them slack.  In the latter position discerning the degree of the deformity was obscured to an extent by the fact that the plaintiff’s upper arm is covered in dark blue tattoos.  The colouring made it a little difficult to make out the contours of the musculature of his upper arm.
25	The plaintiff swore three affidavits in support of his application on 26 June 2020, 9 June 2021 and 1 November 2021.  He said nothing about the consequences of the deformity in any of his affidavits.  He referred to surgical scarring, that he has an obvious deformity in the area of his right upper arm, but otherwise the content of his affidavits is almost entirely devoted to a description of the impairment consequences of the right shoulder.  It is reasonable to expect that the plaintiff will give some evidence of the consequences of the deformity in his affidavits, and during his oral evidence.
26	One of the issues that was raised in Transport Accident Commission v Garcia by the appellant was that the evidence of the respondent fell significantly short of establishing matters going to whether the disfigurement was capable of meeting the very considerable test when analysed.  By example, reference was made to a failure by the respondent to refer to the physical symptoms associated with the disfigurement, how the disfigurement affected his daily life, whether the disfigurement resulted in self-consciousness and embarrassment and whether it resulted in emotional consequences.  In response to that issue, the Court of Appeal observed that the respondent “might have been able to go into greater detail”, but it also observed that the level of detail to which an injured person might go will depend upon the circumstances of each case including how obvious a consequence might be and how unnecessary it might be thought to explain something, the cause of which can be objectively observed.
27	Another criticism made by the appellant in Garcia was whether the trial judge condescended into a level of detail about the consequences that might be seen in a paragraph (a) case.  The Court of Appeal considered that was to be expected in circumstances where the consequences of disfigurement are not likely to be something about which one can dilate at length.
28	The response to disfigurement often includes self-consciousness and embarrassment when the disfigurement is exposed to public view; the inability to wear certain clothing which might expose the disfigurement or the necessity to wear clothing to cover it up, and the emotional response all of which are factors commonly weighed into consideration when determining whether the disfigurement equates with the narrative test; however, there may well be applications where the disfigurement by its location, size and degree of obviousness may not necessitate any evidence because the viewing of it is all that is required for a relevant judgement to be made about whether the disfigurement equates with the narrative test.
29	The plaintiff submitted that in the absence of any evidence from him, the location, size and degree of obviousness of the disfigurement was of such magnitude that the absence of any evidence in the plaintiff was of no consequence.  The defendant, on the other hand, submitted that when the relevant comparison is made with like disfigurements, it falls short of being “serious”.  The defendant drew my attention to Taylor, in which the applicant suffered the retraction of his left biceps tendon which resulted in disfigurement not dissimilar to the disfigurement suffered by the plaintiff, except that it was not described as a Popeye defect. 
30	Garcia and Taylor are cases which assist in making a judgement by comparison because they are cases within the range of possible disfigurements.  I had the advantage of being the trial judge in both applications.  I accept the defendant’s submission that while they are part of the basis for comparison, they succeeded and failed on their own peculiar facts, and they have limitations in their application to any particular extent other than broadly.
31	I am not satisfied that the disfigurement suffered by the plaintiff is serious.  It is in a location which makes it obvious to an observer at close range.  It is of a reasonable size, accentuated by the dip between the normal contour of the bicep and the point of the shoulder.  However, I did not regard the locality and size to be overly obvious when the plaintiff’s arms were placed beside his body and were rendered slack.  The  locality and size were more obvious when he extended his upper arm out from his body and placed his forearm in a fully vertical position.  It is not a posture which I imagine the plaintiff would adopt very often.
Impairment of the right shoulder
32	The plaintiff also asserted that he had a serious injury based on paragraph (a) of the statutory definition.  For the reasons which follow, I am not satisfied that the impairment of the function of the plaintiff’s right shoulder has consequences which are sufficiently serious.
33	The defendant undertook a dissection of the plaintiff’s affidavits to demonstrate that many of the consequences contended for by the plaintiff are simply untenable.  It led to the plaintiff applying to supplement the Court Book by the tender of an additional volume of documents.  I allowed the plaintiff to tender the documents in the face of objection from the defendant.  I do not intend to spend much time explaining why I acceded to the plaintiff’s application except to say that the defendant was in possession of all of the documents which the plaintiff applied to tender, so there was no unfairness in admitting the documents into evidence.
34	There is no doubt that the plaintiff suffered a nasty injury to his right shoulder with  a failed tenodesis, resulting in a Popeye defect.  He was unable to work as a maintenance plasterer for a significant period of time between March and September 2019.  He was eventually able to return to full-time duties by December 2019.  Subsequent to the surgery, the plaintiff’s medical treatment was conservative, comprising physiotherapy and the prescription of anti-inflammatory and painkilling medication.
35	The plaintiff eventually returned to full-time work with the employer.  I accept his evidence that he was struggling to do his work, and, in particular, work at shoulder height and overhead because of a loss of strength in his right shoulder and arm.  He made application through two labour hire agencies for alternative work.  He eventually obtained employment with Castella Quarries as a dump truck driver on 18 December 2020.  His work duties involved operating a dump truck for 70 per cent of his working day and undertaking maintenance work for the remaining 30 per cent of the day.  He qualified that when he said that the maintenance work occupied one or two days per week.
36	Under cross-examination, it became very apparent that the maintenance work undertaken by the plaintiff appeared to involve arduous manual handling which the plaintiff is able to tolerate reasonably well.  The work as a maintenance fitter involved a number of tasks – changing rollers weighing between 8 to 10-15 kilograms on a conveyor belt; lifting rocks of up to 10 kilograms when the hoppers became blocked; using an air chisel to remove hard components in the hoppers created by the accumulation of dust; using a shovel to remove the accumulation of dust; entering confined spaces to access skirt rails and to clean and replace rollers; removing skirt rails using a cordless railgun which, when it is loosened, it will then be pulled out and then slid back into place; using a pneumatic air chisel weighing about 2 kilograms to remove dust which set like concrete; changing screens of about 3 metres x 1.5 metres which are used to screen different sized aggregate which involved some manual handling of screens weighing 30 to 35 kilograms, and using a small metal bar like a small crowbar (called a podgy bar) to manoeuvre the screens into place.
37	I was left with the impression that the maintenance work involved fairly arduous work.  The plaintiff appears to have agreed that that was so.  He added that throughout the course of performing the maintenance work he would be using both of his arms to perform all of the work tasks which I have summarised.  Some of the work involves bending, and work above shoulder height and below knee height.  He estimated that he works up to 56 hours per week.  He agreed that the hours he works and the work tasks which he performs as a dump truck driver and in maintenance work involves a lot of manual labouring and is physically taxing work.  He agreed that apart from the time he was disabled for work due to a transport accident, he has otherwise continued to perform that work without any apparent hindrance.
38	In the plaintiff’s third affidavit, he described his work hours as 50 hours per week, which is at odds with his oral evidence under cross-examination.  I accept that what he said under cross-examination amounts to an accurate estimation of the hours he currently works each week.  He said that in the week in which he swore that affidavit (1 November 2021), he had applied for alternative work; however, under cross-examination, he said that he intends to continue working until Christmas, when he then intends to cease working.  Under re-examination, he elaborated on his search for alternative work.  He intends to look for work operating dump trucks where there is no plant maintenance involved, or as a forklift driver.  Despite saying that he intends to work only until Christmas, he then said that if he has not found a job by Christmas, he will have to continue working because he has bills and a mortgage to pay.  I took that to mean that in fact he has no definite plan to stop working, and will continue working indefinitely. 
39	Under cross-examination, the plaintiff’s evidence regarding the consequences he deposed to in his affidavits changed, and I think changed significantly.
40	The plaintiff referred to playing sport with his seventeen-year-old-son in his first affidavit (sworn 26 June 2020).  He played cricket, basketball and football with his son.  All were played on a recreational basis rather than on a more formal basis.  Under cross-examination, however, he said engaging in cricket involved having a hit in the nets with his son every couple of weeks.  He kicked a football with his son.  The only problem he had with kicking a football was marking the ball, and I assume he meant using both hands in front of his body.  It does not appear that he actually played basketball with his son.  His son would gather with his friends, set up a basketball hoop and play, and the plaintiff said he would go out there with them and watch and support his son.  He would do that with his son on a weekly basis.  Otherwise his involvement with basketball with his son amounted to “mucking around”.
41	The plaintiff agreed that at nineteen years of age, his son is no longer as interested in engaging in these activities with him, and he described his son as “finding himself”, which I understood to mean that his son has moved into a different level of pursuit of recreational activities which no longer involve the plaintiff as much as was previously the case, and indeed, the plaintiff described his son as being very committed to playing football for his school.  The plaintiff attends training and matches to watch his son play football, and occasionally has a kick with him when his son is warming up as a prelude to playing.
42	The plaintiff described darts as being his great love.  He played darts with his son every night.  The plaintiff is right-handed.  He finds that he is no longer accurate in throwing a dart which has led him to not playing games of darts and scoring when playing darts with his son.  Under cross-examination, however, the plaintiff said that he did not play darts with his son every night, but most nights, and then described playing darts as “… we go out and have, you know, just a game of footy or something on the dartboard”.  It left me with the impression that the plaintiff and his son did not play darts every night, and it was rather more a casual leisure activity, and that it was the same with playing cricket and football, with both being rather more casual leisure activities.
43	The plaintiff described his other great love as shooting.  He has several guns.  He would go to Mount Disappointment about once a month to shoot rabbits.  He said that he is no longer able to go out shooting rabbits.  Under cross-examination, however, the plaintiff said that he no longer uses a shotgun because of the recoil which may impact upon his right shoulder, but he said that he has recently bought a 17HMR rifle which has no recoil “and it’s good for shooting foxes and rabbits”. The plaintiff agreed that he still engages in shooting, with the only limitation being gun selection.  I accept the plaintiff’s evidence, however, that he no longer goes clay shooting which involves the use of a shotgun.  He said he engaged in that level of shooting about once a month at Mount Disappointment, however, under re-examination, he said that he engaged in clay shooting twice a month, or may be more.
44	Under cross-examination, the plaintiff said that he is able to perform work around his house, and, in particular, he can mow the lawns; help clean his house; wash his car, and do what gardening is necessary.  He said, however, that he does not have a high-maintenance property, which I understood to mean not a garden requiring a lot of attention.
45	There was a consequence on which the plaintiff was not cross-examined which I accept he is either not able to do or less able to do because of the impairment of the function of his right shoulder.  He used to go ten-pin bowling with his wife about six times a year.  He is not able to do that because of the pain it produces in his right shoulder.
46	In his first affidavit , the plaintiff described suffering daily constant pain in his right shoulder which fluctuates in intensity, and is aggravated by use of his right arm above shoulder level, and repeated use of his right shoulder.  He also said that he has a reduced range of motion and, a loss of strength, tenderness in the right shoulder and pain spreading down his upper arm and up towards his neck.  In his subsequent two affidavits, he again said that those consequences of pain remain a problem for him. 
47	In his first affidavit, he referred to his sleep pattern being affected.  He said he has difficulty getting to sleep.  He has accommodated the problem which his right shoulder creates with sleep, by avoiding having his right arm tucked under his head which was his usual sleeping habit.  The impact of his right shoulder on his sleep causes him to toss and turn throughout the night, but he only occasionally wakes during the night due to pain in his right shoulder.  Under cross-examination, he accepted that he has adjusted his sleeping habit, but he added that it is one of his biggest concerns, and he chose to describe it as a “big problem”.  Under re-examination, the plaintiff described sleep as being an even bigger problem than he deposed to in his first affidavit and the description he gave of it under cross-examination.  He described not being able to sleep properly, and waking through the night tossing and turning.  He described struggling to get to sleep.  He will take Panadeine Forte to help him with the pain so that he can get off to sleep.
The lower back problem
48	The defendant submitted that the plaintiff is troubled by a lower back injury which he suffered in a transport accident which occurred on 13 February 2021 which also contributes to pain, the need for medication and results in interference with his capacity for work.  It relied on Peak Engineering Pty Ltd & Anor v McKenzie and the onus borne by the plaintiff to adduce evidence of all of the pain and suffering consequences where there are two different injuries concurrently producing pain and suffering consequences.  I will return to this later in these reasons.
49	The plaintiff said very little about the transport accident in his second affidavit sworn on 9 June 2021.  He merely described it in a very short and summary way.  He did not describe any residual consequences of any injuries resulting from the transport accident.  He was off work for a period of four months, presumably because he was disabled and needed time to recuperate.  The only reference to treatment is the need for ongoing physiotherapy without saying what the physiotherapy was directed to.
50	The plaintiff tendered the clinical notes of the Royal Melbourne Hospital where he was admitted.  They are directed to the major injuries suffered by the plaintiff which were multiple rib fractures and a scalp laceration which was sutured.  There is no reference to the plaintiff suffering an injury to his lower back, and I think that is probably understandable because the focus, as best I can appreciate it, of the attending medical practitioners was to treat the rib fractures and scalp laceration.
51	Under cross-examination, the plaintiff acknowledged that there was nothing in the clinical notes of the Royal Melbourne Hospital about his lower back.  On discharge he described his lower back as being swollen and bruised.  He had intensive physiotherapy for about four months which was largely focused on his lower back.  He also acknowledged that the focus of the treatment provided by doctors and physiotherapists since his discharge from the Royal Melbourne Hospital has been his lower back.  He agreed that part of the medical treatment included the prescription of Mobic which he continues to use, but he qualified that by saying that it is for his right shoulder as well.
52	The plaintiff was cross-examined about  entries in the clinical notes of the Laurimar Medical Centre. Based upon the entries in the clinical notes postdating the occurrence of the transport accident, the defendant essentially submitted that the plaintiff was complaining of a persisting lower back problem for which he was prescribed at least Mobic and probably Panadeine Forte.  I have looked closely at the clinical notes.  The following is a short summary of relevant entries:
•	24 February 2021, the plaintiff saw Dr Ehamparam Kugatheepan, general practitioner.  His clinical note reveals that the plaintiff described the transport accident and complained of suffering lower back pain with some minimal bruising and tenderness.  He questioned whether the plaintiff had suffered a soft tissue injury.  He prescribed Panadeine Forte.
•	24 March 2021, the plaintiff saw Dr Kugatheepan.  His clinical note reveals that the plaintiff complained of lower back pain “since the time of the accident”.  He referred him to have a CT scan of his lumbosacral spine.
•	27 March 2021, the plaintiff saw Dr Kugatheepan.  His clinical note reveals that the plaintiff told him that he has “new lower back issues”.  He recorded that the plaintiff told him of an old injury ten years ago when he slipped and fell off a ladder onto his buttocks and suffered an L4-5 disc herniation.
•	10 April 2021, the plaintiff saw Dr Kugatheepan.  His clinical note reveals that the plaintiff was “now complaining [of] lower back pain as well- under investigation …”.  There is a cryptic reference to disc bulging at L3-4, L4-5 and L5-S1 with a flattening of the exiting right L4 and bilateral L5 nerve roots.  He prescribed Mobic.  There is a CT scan referred to in the Defendant’s Court Book taken on 26 March 2021.  I think it is probable that the references to the disc bulging in the nerve roots was taken from that CT scan.
•	2 October 2021, the plaintiff has a Telehealth consultation with Dr Kugatheepan.  His clinical note reveals that the plaintiff told him that he had experienced back pain on and off since the transport accident, that he needed a prescription, and that he was seeing an osteopath.  He prescribed Mobic and Panadeine Forte.
53	Under cross-examination, the plaintiff was referred to the most recent clinical notes of Dr Fouad Israel, general practitioner, who he saw on 2 October 2021 via a Telehealth consultation.  Dr Israel recorded that the plaintiff told him that he had lower back pain on and off, that he needed a prescription, presumably to treat the lower back pain, and that he was seeing an osteopath.  He was prescribed Mobic and Panadeine Forte.  He agreed that he was prescribed the Mobic to treat his lower back. 
54	Under cross-examination, the plaintiff was also referred to the clinical notes of the Mill Park Physiotherapy Clinic.  I do not intend to trace through those clinical notes to the extent that I did with the clinical notes of the Laurimar Medical Centre.  The notes are cryptic, leaving me with some level of concern about what they disclose, so I have limited the summary to those notes where I can be confident that they refer to the plaintiff’s lower back.  I think it is sufficient to observe that there are references in those clinical notes on 23 and 24 March 2021, 12 April 2021, 1, 6 and 10 May 2021 to the plaintiff’s lower back in the context of the treatment which he was being provided.  There are some references to the plaintiff’s right shoulder, but the impression I am left with is that the majority of the clinical notes are devoted to treatment provided to the plaintiff for his lower back between March and May 2021, and contain complaints by the plaintiff of having persisting problems with his lower back.
55	The purpose in the plaintiff tendering the clinical notes of the Laurimar Medical Centre and the Mill Park Physiotherapy Clinic was to demonstrate that the plaintiff has complained of right shoulder problems from a fairly early point in time and up to the present time, even in the setting of the treatment which he obtained for his lower back.  The difficulty in trying to make sense of clinical notes is something which judges face almost daily in the hearing of serious injury applications.  More and more the parties appear to rely upon the content of clinical notes as if they were some sort of empirical record of an account given to a doctor by an injured plaintiff, but often they are cryptic and difficult to understand and require explanation which should have occurred here, but which has not.  This is something I will return to shortly.
56	In his second affidavit, the plaintiff referred to returning to work with Castella Quarries four months after the occurrence of the transport accident.  As I have already observed, he said nothing in his affidavits about his lower back injury, but said that he takes Mobic once a day and two Panadeine Forte tablets approximately four times a week to deal with the pain he experiences in his right shoulder.  In his last affidavit, he repeated that he takes Mobic, but approximately three tablets per week, and Panadeine Forte, but approximately two to three times per week, and additionally about three Nurofen tablets per day.  The defendant submitted that what the plaintiff swore to in this respect is plainly wrong when a comparison is made with what is disclosed in the clinical notes.  When the plaintiff was confronted with what is a plain contradiction between the content of the clinical notes and what he swore to, he agreed that Mobic and Panadeine Forte have been prescribed to treat lower back pain.
57	Despite agreeing with the cross-examiner regarding the reason why he is  currently prescribed Mobic and Panadeine Forte, he returned to his original position under re-examination, saying that he takes Nurofen during the day when he is working and at the end of the day will take Mobic to rid himself of the inflammation he experiences after a day’s work and then Panadeine Forte if he is not sleeping.
58	Under cross-examination, the plaintiff agreed that the difficulties he says he is experiencing in his work with Castella Quarries results from both his right shoulder and his lower back.  He described the problems he has with his back as “my back goes” which I understand to mean that it is episodic and interferes with his capacity to work to some unstated extent.  He agreed that it can restrict him in lifting from the ground up and bending at the waist. 
Consequences of the right shoulder impairment
59	I am not satisfied that the consequences contended for by the plaintiff are serious, and, more particularly, that when those consequences are judged by comparison with other cases in the range of possible impairments or losses of a body function can be fairly described as being more than significant or marked, and as being at least very considerable.  My reasons for so finding  can be distilled as follows.
60	Despite the Popeye defect, the surgery undertaken by Mr Blackmore has resulted in a sufficient repair of the rotator cuff to enable the plaintiff to have a reasonably full and unrestricted use of his right shoulder.
61	The maintenance work which the plaintiff is undertaking involves arduous manual handling which he is able to perform without any restrictions, either self-imposed or imposed by any doctor or physiotherapist who has treated him since he obtained work with Castella Quarries.
62	I am not convinced that the medication which the plaintiff currently is prescribed is for his right shoulder.  It is clear enough to me from the plaintiff’s evidence and what is disclosed in the clinical notes, that he is prescribed Mobic for his lower back.  I am not convinced that the Panadeine Forte is only prescribed for his right shoulder.  The clinical notes of Dr Kugatheepan record the lower back as being the reason for the consultation, and associated with the consultation is a prescription of Panadeine Forte on 24 February 2021 and 2 October 2021.  
63	The issue relevant to the reason for the prescription of Mobic  and Panadeine Forte  could have been resolved very easily if the plaintiff had obtained a report from Dr Kugatheepan.  The plaintiff’s evidence relevant to the consequences of the transport accident, and, more particularly, the lower back injury, is very unsatisfactory.  It is very apparent to me that it has caused the plaintiff some very real difficulties, and he has conceded as much under cross-examination, yet there is not even subtle reference to the lower back injury in any of his affidavits.  I am not prepared to go so far as to conclude that the plaintiff has been dishonest, but what appears to me to be the case in the setting of this unsatisfactory evidence is that the plaintiff was probably in need of Mobic and Panadeine Forte to treat the pain he was experiencing in his right shoulder, but since the occurrence of the transport accident, the treatment by the prescription of that medication appears to be more directed to his lower back.
64	That brings me to the submission made by the defendant based upon Peak.  Maxwell P, with whom Redlich JA and Dixon AJA agreed, observed that where two different injuries are concurrently producing pain and suffering consequences, that it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of trial.  Furthermore, that this seems to be an essential precondition to the task of deciding which of the pain and suffering consequences are attributable to which injury.
65	What I now know is that the plaintiff suffers from the consequences of a lower back injury which does impair the function of his lower back to the extent that it impacts upon his capacity for work to the extent which he described under cross-examination.  So, it is not the case that he solely suffers incapacity for work by his right shoulder alone.  Furthermore, his treatment post the transport accident appears to me to be more directed to his lower back.  That, of course, does not mean that he does not suffer from consequences of the impairment of the function of his right shoulder.  What it does mean is that his right shoulder has not required any particular treatment through 2021 except for some physiotherapy, but largely the medical treatment, the prescription of medication and the physiotherapy treatment has been focused on his lower back.
66	The plaintiff has failed to undertake the task set for him where two different injuries are concurrently producing pain and suffering consequences.  It becomes of serious importance to the plaintiff, because he has relied upon the prescription of medication as being a marker of the seriousness of his right shoulder injury, and the incapacity caused by it relevant to his work is being another marker of that degree of seriousness, when the lower back is now a potentially significant contributor to the need for the prescription medication and an impact on his capacity to perform his work.
67	The defendant submitted that the issues relevant to the plaintiff’s lower back, the prescription of medication and his capacity for work could easily have been resolved by the provision of a medical report from Dr Kugatheepan.  It relied on Jones v Dunkel and invited me to draw the adverse inference that evidence from Dr Kugatheepan would not have assisted the plaintiff.  The plaintiff conceded that Dr Kugatheepan did not provide a report, and in that respect, had not given evidence; that he is in the plaintiff’s camp; that the failure to adduce evidence from him is unexplained; that it is impermissible to speculate what he might have said on these relevant issues, and that it is permissible for me to infer that his evidence would not have helped the plaintiff’s case and that I can more readily accept the defendant’s evidence on these relevant issues.  The plaintiff submitted that I should not draw that adverse inference against the plaintiff.
68	The relevant evidence which the defendant submitted I should prefer are the clinical notes which demonstrate that the real issue for the plaintiff since the occurrence of the transport accident has been his lower back injury.  I infer that Dr Kugatheepan’s evidence would not have helped the plaintiff’s case, and I more readily accept the defendant’s evidence, and the submission based on that evidence, that the clinical notes demonstrate that the plaintiff has an actively symptomatic lower back which has, and continues to require, medical and physiotherapy treatment.
69	Returning to the specific consequences contended by the plaintiff.  The plaintiff is able to work full time in what I think is an arduous occupation requiring the full, free and unrestricted use of his right shoulder.  He has shown a capacity to do just that.  He has not taken any time off work.  He is not in receipt of any WorkCover certificates which demonstrate that he should have work restrictions imposed upon him.  While he intends to look for other work, it is now clear that he intends to work indefinitely for Castella Quarries until he finds another job which he thinks might be more suitable.  The capacity to work is not the be all and end all in a serious injury application, but in this case, it demonstrates that the plaintiff is less affected by the impairment of the function of his right shoulder than he stated in his affidavits.
70	The plaintiff’s reliance on a range of activities appears to me to be overstated somewhat in his affidavits.  His commendable commitment to his son, and his involvement with his son playing darts, cricket and football do not impress me as being activities which he engaged in as frequently and to the extent which he stated in his affidavits.  I think I have said as much about those activities as I need to earlier in these reasons.  Otherwise, the plaintiff is able to engage in domestic activities in his home and in his garden in what appears to me to be a relatively unrestricted manner.  I accept, however, his evidence that his use of some firearms is limited, and that he no longer goes ten-pin bowling.
71	Mr Chehata considered that the plaintiff may suffer some real reduction in his capacity to engage in non-working activities, however, the plaintiff’s own evidence suggests otherwise.
72	In the end, the plaintiff has retained a significant capacity to engage in his chosen field of work, and a reasonable measure of his pre-injury non-working pursuits which I think fall short of what is intended by the standards set, that the plaintiff must satisfy me that his consequences are at least very considerable.  I do not accept that they are, for the reasons set out above.
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