FAHEY v VWA [2024] VCC 2029
Facts
In Fahey v VWA, the plaintiff, Mr. Fahey, sustained a right shoulder injury from a traumatic scapular fracture, which caused ongoing pain, reduced range of motion, and physical limitations. The injury led to significant challenges in both his professional and personal life. While he returned to work full-time, his role was modified to accommodate his restrictions, which included lifting limitations and avoiding tasks that required significant use of his right arm. Despite trying to manage his pain without medication, Mr. Fahey continued to take ibuprofen a few times a week when the pain became unbearable. His personal life was also affected, as he was no longer able to engage in recreational activities such as bowling, camping, and gardening, and his domestic responsibilities had to be taken over by his partner.
Principles Used to Come to Decision
The Court considered the plaintiff’s medical evidence, particularly the opinion of a Medical Panel, which supported the presence of right shoulder dysfunction and scapular muscular dysfunction due to the traumatic injury. The plaintiff’s ongoing pain and restricted range of motion were substantiated by medical imaging, including a CT scan showing a united scapular fracture with some displacement. In evaluating the extent of the plaintiff’s injury, the Court referred to previous cases, including Aburrow v Network Personnel Pty Ltd and Kesper v VWA, which highlighted the need to distinguish between the experience of pain and its disabling effect on the plaintiff’s physical capabilities and quality of life. The Court also took into account the impact of the injury on the plaintiff’s ability to perform normal daily activities and the significant limitations on his work and recreational pursuits.
The credibility of the plaintiff was key in the Court’s reasoning. The plaintiff was described as a stoic individual who underplayed the extent of his pain, as he was determined to continue working despite his physical restrictions. His evidence about his ongoing pain and limitations was found to be consistent, and his partner’s affidavit further corroborated the significant impact the injury had on their daily lives.
Decision
The Court found that Mr. Fahey’s injury, while it had not led to complete incapacitation, resulted in serious and lasting consequences for his physical capabilities. The plaintiff's ability to work was modified, with his employer accommodating his physical limitations. The loss of his pre-injury physical abilities, particularly in work and daily life activities, was deemed significant. The Court accepted that the plaintiff’s ongoing pain, even if manageable with medication, and his permanent loss of shoulder function satisfied the test for "pain and suffering." The injury was found to have caused a permanent impairment and had significant effects on his quality of life. Consequently, the Court granted the plaintiff’s application for compensation.
Lessons/New Principles
This case reinforces the principle that even when a plaintiff is able to return to work after an injury, it does not necessarily negate the seriousness of the injury. The Court in Fahey v VWA emphasised that the effect of the injury on the plaintiff’s ability to perform everyday tasks, as well as its impact on his physical and emotional well-being, are critical factors in assessing pain and suffering. The case also highlights the importance of the plaintiff’s credibility and the weight given to consistent and corroborated evidence, particularly when the injury is less visible or when pain is managed with medication. It further establishes that even when an injury’s impact is subtle in some aspects, the cumulative effect on a person’s quality of life, work capacity, and recreational activities can meet the threshold for serious injury compensation.
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