Aden v Tailored Workforce Pty Ltd

[2013] VCC 636

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No. CI-12-00455

MOHAMED ABDULLAHI ADEN	Plaintiff
v
TAILORED WORKFORCE PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	22 and 23 May 2013
DATE OF JUDGMENT:	7 June 2013
CASE MAY BE CITED AS:	Aden v Tailored Workforce Pty Ltd
MEDIUM NEUTRAL CITATION:	[2013] VCC 636

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION
Catchwords:            Serious injury – bilateral fracture of scaphoid bones – loss of function of both wrists – whether pain and suffering consequences are “serious”
Legislation Cited:     Accident Compensation Act 1985, s134AB(38)(c)

Cases Cited:Barwon Spinners Pty Ltd v Podolak & Ors (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd [2011] VSCA 52

Judgment:                The plaintiff’s Originating Motion is dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Loftus	Alessi & Kemp
For the Defendant	Mr B R McKenzie	Lander & Rogers

HIS HONOUR:

Introduction

1 This proceeding is an application brought by Originating Motion dated 2 February 2012 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by him and arising out of and in the course of his employment with the defendant on 27 June 2007. 

2       The plaintiff seeks leave to bring proceedings for pain and suffering damages only. 

3       The injury suffered by the plaintiff for which he seeks leave to bring proceedings for damages is a bilateral fracture of the scaphoid bones and impairment to both wrists. 

4       The plaintiff gave evidence and was cross-examined.  The following documentation was tendered in support of the application:

·Exhibit A – the Plaintiff’s Court Book (“PCB”) pages 6 to 16, 23 to 48 and 68 to 114

·Exhibit 1 – the Defendant’s Court Book (“DCB”) pages 23 to 63.

5       This application is brought under the definition of “serious injury” contained in ss(37)(a) of the Act, which requires a plaintiff to prove that he has suffered “permanent serious impairment or loss of body function”.  The loss of body function in this case is the use of both wrists.  Mr McKenzie, on behalf of the defendant, identified the issue in this application as:

“The only issue that needs to trouble your Honour is the issue of seriousness, so injury, causation, permanency, all those matters are not in issue and there’s no suggestion of non-organic factors, so it is – it’s fractures of the scaphoids on both sides and the issue is the consequences of that.”[1] 

[1]Transcript (“T”) 2, L11-17

6       In short, this case is a “range case”. 

7       In the course of the plaintiff’s evidence, the plaintiff’s credit became an issue as far as the defendant was concerned.  Mr McKenzie, on behalf of the defendant, in his closing address, raised the issue of the plaintiff’s credit. 

Credit of the Plaintiff

8       I accept that the plaintiff was giving honest and genuine answers during the course of his evidence.  I do not find that the plaintiff was evasive in the manner in which he answered questions directed to him.  In particular, once the plaintiff is furnished with the two Court Books involved in this case and asked to refer to them, it is only natural that when he is asked specific questions about specific detail he would seek to revert to the printed material to answer the question.

9       The plaintiff described himself as a religious man and I accept that he was being honest in his conduct here at this proceeding. 

10      The real issue in this case is whether the consequences of the wrist injuries to the plaintiff were “serious”. 

The statutory scheme

11 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.

12      The relevant considerations which apply to such an application are as follows:

(a)      The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999;[2]

[2]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11

(b)      The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[3]

[3]Barwon Spinners (supra) at paragraph 33

(c)       The plaintiff bears the burden of proof to be determined upon the balance of probabilities;

(d)      Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;

(e)      Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;

(f)       Sub-section (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently;

(g)      In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38).  I have applied the principles set forth therein in reaching my conclusions in this application.

13      I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.

The Plaintiff’s background

14      The plaintiff was born in 1970.  At the time of the hearing he was forty-two years old.  The plaintiff was born in Puntland in Northern Somalia.  He left Somalia with his family and went to Kenya.  From Kenya he then migrated to New Zealand.  The plaintiff is a citizen of New Zealand.  In 2005, the plaintiff migrated with his family to Australia.[4]

[4]T14

15      He is a married man with four children.  His wife and children all live in Australia.[5]

[5]PCB 36

16      The plaintiff was educated in New Zealand.  He completed three of four semesters of a laboratory technician’s course in New Zealand.  Upon his arrival in Australia, he enrolled in a course as a cable technician at RMIT.  He did not complete that course.  Whilst in New Zealand, he was certified as a Halal certifier.  This certification is to do with his work in the abattoir industry in New Zealand.[6]

[6]T17

17      Upon his arrival in Australia, the plaintiff has worked as a taxi driver, a truck driver, and currently works in childcare.[7]  The plaintiff conducts his own childcare business at the current time from his home address.  This work involves him caring for children before and after school hours.  It also involves him transporting the children in his care to a religious school and back to their home. 

[7]T10

Injury with the Defendant

18      In the course of his employment with the defendant, the plaintiff was required to drive his truck to the Ballantine warehouse.[8]  On 27 June 2007, the plaintiff was in the process of drawing back the curtain sides on his truck.  This was a process that had to be done manually.  The conditions on that day were raining and windy. 

[8]PCB 27

19      The plaintiff states that he had grasped the bottom end of the pole which is used as a handle to manoeuvre the curtains back.  The handle was smooth, wet and greasy and he slipped and fell backwards.  As a result of the fall, the plaintiff received bilateral scaphoid fractures.[9]

[9]PCB 27

20      The defendant accepts the injury occurred in the manner described by the plaintiff. 

Medical treatment

21      Immediately after the accident, the plaintiff was taken to the Bridge Street Clinic in Port Melbourne.  This is an industrial medical clinic.  The plaintiff was seen by Dr Jack Lipp, general practitioner.[10]  Dr Lipp ordered x‑rays of both wrists and a diagnosis of fracture to the scaphoid was made in respect of both wrists.[11]

[10]T19 and Defendant’s Court Book (“DCB”) 36

[11]DCB 36 and 37

22      The plaintiff then attended at the Epworth Hospital.[12]  On 29 June 2007, the plaintiff underwent an operation performed by Mr Minoo Patel, orthopaedic surgeon, to rectify the injuries to his wrists.  Mr Patel performed surgery on left and right wrists.  The procedure involved the insertion of wires to set the scaphoid bones in each wrist.[13]

[12]T19

[13]PCB 90

23      On 4 July 2007, the plaintiff returned to Dr Michael Gross at the Bridge Street Clinic.  At that time, his wounds were healing well.  He was certified as being unfit for work until 18 July 2007.[14]

[14]DCB 36

24      The plaintiff was reviewed by Mr Patel in August of 2007.  Mr Patel, at that time, said that the plaintiff was not fit for any manual truck driving or heavy lifting.  The medical advice at that time was that the plaintiff should seek physiotherapy treatment.[15]

[15]T21 and DCB 35

25      The plaintiff’s last visit to Dr Michael Gross was on 14 September 2007.  On that occasion, he was certified as being fit for modified duties.  By a certificate date 18 September 2007, Dr Gross certified the plaintiff fit for a return to work program.[16]  In fact, the plaintiff had left Australia on 17 September 2007.[17]

[16]DCB 27

[17]T25

26      The plaintiff also had been referred to Mr Perilli, physiotherapist.  He attended on Mr Perilli on one occasion, 20 August 2007.  A physiotherapy treatment plan was prepared and a total number of twelve services over a period of six weeks was the recommended course of treatment.[18]  The plan was dated 20 August 2007.  The evidence is that the plaintiff never went back to the physiotherapist after that one session.[19]

[18]PCB 106

[19]T30

27      The plaintiff did not return to the Bridge Street Clinic for treatment in respect of his wrist injuries after September 2007. 

28      The plaintiff has had little conventional Western medical treatment for his injury to his left and right wrists since September 2007.  The plaintiff’s treatment has been interrupted by his travel to and from overseas.

The Plaintiff’s travel itinerary

29      The plaintiff left Australia for Malaysia on 17 September 2007.[20]  The plaintiff’s evidence is that he travelled to India and Malaysia in that period.  He also travelled to the United Arab Emirates and Somalia.  He returned to Australia on 30 March 2008.[21]  His trip overseas on this occasion was approximately six months’ duration.

[20]T25 and DCB 41

[21]DCB 45

30      The plaintiff, upon his return to Australia, returned his truck driving in the early part of 2008.  He also worked as a security guard.[22]  The plaintiff gave evidence that he ceased one of his truck driving jobs as a result of the requirement for him to transport alcohol.  This was a problem for him due to his religious beliefs.

[22]PCB 29

31      On 9 August 2009, the plaintiff went to Dr John Finkelstein at the Lygon Court Medical Clinic (“the Carlton Clinic”).  On that occasion, he was prescribed Duatrol SR tablets.  This was for the pain to his wrist symptoms.[23] 

[23]PCB 97

32      On 30 September 2008, the plaintiff’s right and left wrist were x‑rayed after his complaint of pain in that region.[24]

[24]PCB 97

33      On 12 October 2008, the plaintiff departed Australia for travel overseas.[25]  The plaintiff returned from overseas on 15 April 2009.[26]  On this occasion, the plaintiff had been away for approximately six months. 

[25]DCB 46

[26]DCB 45

34      Shortly after his return from overseas, the plaintiff attended on Mr Patel, his surgeon, on 18 May 2009.  On that occasion, the plaintiff was complaining of clicking sensation in the left wrist.  Mr Patel organised a set of x‑rays to be performed on the left and right wrist on that date.  The x‑rays report that the union had occurred on both sides.  Both screws were buried in the bone and that they are unlikely to be the source crepitus on the left side.[27]

[27]PCB 92

35      On 27 May 2009, the plaintiff attended on Dr Cooper at the Carlton Clinic.  On that occasion, he was prescribed Elocon lotion for administration to his left and right wrists.[28]  On 17 August 2009, the plaintiff attended on Dr Gerry Tsagaratos at the Carlton Clinic.  Dr Tsagaratos referred the plaintiff to Mr Patel.[29]

[28]T36 and PCB 98

[29]PCB 98

36      The plaintiff then departed Australia on 14 October 2009.[30]  On this occasion, the plaintiff remained overseas until 28 May 2010, when he returned to Australia.[31]  The total period of the plaintiff’s absence from Australia on this occasion was approximately seven months.

[30]DCB 45

[31]DCB 46

37      The only trip the plaintiff had to the doctors on his arrival back in Australia was on 31 May 2010.  He then saw Dr Monica Cooper at the Carlton Clinic for bronchitis.[32]

[32]PCB 98

38      On 6 December 2010, the plaintiff departed Australia again.[33]  The plaintiff was away from Australia until 7 February 2011, when he arrived back in Australia.[34]  On this occasion, the plaintiff’s trip was of three months’ duration. 

[33]DCB 42

[34]DCB 45

39      On 17 February 2011, the plaintiff attended on Dr Monica Cooper.  On this occasion, he was prescribed Augmentin Duo tablets.  This is the same medication he received for his bronchitis in 2010.[35] 

[35]PCB 98

40      On 4 April 2011, the plaintiff attended Dr Monica Cooper again and was declared fit to drive the children to school.[36] 

[36]PCB 98

41      On 12 April 2011, the defendant departed Australia.[37]  He remained overseas until 8 May 2011 when he arrived back in Australia.[38]  The duration of this trip was for one month. 

[37]DCB 43

[38]DCB 45

42      The plaintiff again departed Australia on 23 June 2011.[39]  On this occasion, the plaintiff travelled to Malaysia.  He returned from Malaysia on 23 July 2011.[40]  The duration of this trip was for one month.

[39]DCB 54

[40]DCB 54

43      Upon his return to Australia on 26 July 2011, the plaintiff attended upon Dr Monica Cooper again.  On this occasion, he was prescribed Augmentin for his bronchitis.  He was also prescribed Elocon lotion, which he uses for his wrists.[41]  This is the last occasion that the plaintiff actually attended upon Dr Cooper.[42] 

[41]PCB 98

[42]T45

44      On 22 September 2011, the plaintiff again departed Australia.[43]  On 20 October 2011, the plaintiff returned from his trip to Malaysia.[44]  It is in this October trip in 2011 that the plaintiff brought his family from Malaysia to Australia.[45]  The plaintiff also took over his sister’s childminding business at that time.[46]

[43]DCB 49

[44]DCB 53

[45]T87

[46]T74

45      On 20 December 2011, the plaintiff departed Australia for India and Bangladesh.[47]  He returned to Australia on 17 January 2012.[48]

[47]DCB 53

[48]DCB 50

46      Upon his return to Australia, the plaintiff continued with his childminding business.

47      The plaintiff, on 26 June 2012, departed Australia for New Zealand.[49]  He returned from New Zealand on 15 July 2012.[50]  His trip to New Zealand was for a duration of one month.[51]

[49]DCB 50

[50]DCB 52

[51]T62

48      The final trip the plaintiff had taken immediately prior to this Court hearing was some five weeks prior to 20 May 2013.  The plaintiff gave evidence that he had departed Australia for approximately five weeks when he travelled to Egypt.[52]  In that trip he was to meet his former wife in Egypt.  The plaintiff arrived back in Australia on 20 May 2013.[53]  That was two days prior to the commencement of this proceeding.

[52]T61

[53]DCB 53

49      In total, the plaintiff has had ten trips overseas since the time of his injury until the hearing of this proceeding.  In total, the plaintiff has been overseas for approximately two-and-a-half years since the time of his injury.  The plaintiff has been able to travel overseas on all of these occasions, including to North Somalia.  It is clear that the injuries to his wrists have not in any way impacted upon his ability to travel or partake in any of the activities involved in such travel.  The length of time that the plaintiff has been overseas also has precluded him from seeking or attempting to seek any further treatment for his injuries. 

Medical opinions

50      The plaintiff relies upon the opinions of the following doctors:

(a)    Dr Michael Gross, general practitioner

51      Dr Michael Gross is the general practitioner who was at the Bridge Street Clinic and saw the plaintiff in the very early days after his injury.  Dr Michael Gross last saw the plaintiff on 14 September 2007.[54]  In his report dated 20 August 2007, Dr Gross diagnosed the plaintiff with bilateral scaphoid fractures to his right and left wrists.[55]  Dr Gross noted that the plaintiff had had operations to repair his injuries and was deemed unfit for duties.  On his last review, being 17 August 2007, he declared that the plaintiff was fit for alternative duties.  The restrictions were, no manual truck driving or physically demanding duties.[56]

[54]DCB 34

[55]PCB 95

[56]PCB 95

52      Dr Gross stated that the duration of the incapacity for the plaintiff will be two to four months.  He was of the opinion that the plaintiff would not sustain any permanent impairment.[57]

[57]PCB 96

53      As Dr Gross has not seen the plaintiff since 14 September 2007, his opinion of the plaintiff’s current difficulties now outdated. 

(b)    Dr Minoo Patel, orthopaedic surgeon

54      Dr Patel was the orthopaedic surgeon who operated on the plaintiff immediately after the injury to his right and left wrists.  In a report dated 7 July 2009, Dr Patel stated:

“Clinically the left wrist had full range of motion with normal stability.  Watson’s test was negative with no scapholunate tenderness.  There was minor painless crepitus at the site of the screw insertion.

Similarly the right wrist had full range of motion with normal stability and a negative Watson’s test.  There was no scapholunate tenderness or crepitus.”[58]

[58]PCB 91

55      Dr Patel’s opinion was:

“I believe Mr Aden is able to undertake gainful employment without any restriction.

…

Since both the scaphoid fractures have healed and there is no evidence of any wrist instability Mr Aden should not be at any higher risk of getting arthritis in the wrist compared to his peers in the wider community.

…

In summary Mr Aden had bilateral scaphoid fractures in the wrist which were treated surgically and have healed well, giving him a good functional result.  There is however subtle weakness especially in the left wrist which can be easily managed with a strengthening program.”[59]

[59]PCB 92

(c)    Mr Owen W Deacon, orthopaedic surgeon

56      Mr Deacon prepared two reports in respect of this application.  The first report is dated 18 August 2009.  The second report is dated 4 April 2011. 

57      In his first report dated 18 August 2009, Mr Deacon gave the following opinion:

“I am concerned that there is still some pathology in the left wrist which hasn’t been assessed, a concomitant injury, and the triangular fibro-cartilage carpal tunnel compression of the median nerve causing discomfort into his lower left thumb.”[60]

[60]PCB 73

58      At that time, Mr Deacon’s opinion was that the left wrist injury had not stabilised.

59      In his later report dated 4 April 2011, Mr Deacon stated:

“There was some tenderness still on both sides in the anatomical snuff box and passive movements of the left wrist demonstrate a small click which he had previously complained of but which hadn’t been totally worked out, it might be related to some injury to the triangular fibrocartilage ligament in the left wrist joint.

…

This worker does not take any medication for his wrists at present.[61]

[61]PCB 80

60      Mr Deacon was of the opinion that the plaintiff’s condition had stabilised. 

61      His final opinion was:

“I do think that he is a little vulnerable as far as further injury to his wrists is concerned following this fracture involving both scaphoids even though his outcome has been satisfactory as far as union of the scaphoids is concerned but nearly four years have passed and he still has a feeling of stiffness and I think that will be the reminder to him to channel his activities to keep within the bounds set by the degree of recovery he has had.”[62]

[62]PCB 82

(d)    Mr John O’Brien, orthopaedic surgeon

62      Mr John O’Brien reported to the plaintiff’s solicitors for the purpose of this application.  The date of Mr O’Brien’s report is 23 July 2012.

63      In his examination, Mr O’Brien found that the plaintiff’s grip strength on the right hand was diminished.[63]  He then goes on to say that there was a full range of movement present in all fingers.  In the left hand however, grip strength was reduced and in fact less than on the left side.[64]

[63]PCB 87

[64]PCB 87

64      It is hard to reconcile these two statements within the investigation findings of Mr O’Brien.

65      Mr O’Brien’s opinion was:

“Current symptoms and signs certainly suggest the presence of non-specific wrist pain.  Indeed, believe it is likely that the underlying source is post-traumatic arthritis in both wrist joints.

…

Currently however the patient does not receive any specific active treatment, relying on Panadol to control pain.

…

I would remain guarded in relationship to the prognosis.  I think it does now appear the patient has chronic non-specific bilateral wrist pain, but I would consider that it is impossible to predict the rate of any progressive pathology.

…

Thus, in my opinion, the patient’s restrictions are significant and I believe there is suitable employment that can be pursued.  Indeed, the patient’s general, social, domestic and recreational activities are restricted by the injury to the right wrist alone and also by the injury to the left wrist alone.  The restriction however is quite definitely compounded by the bilateral nature of the patient’s wrist pathology and this in my opinion is indeed permanent.”[65]

[65]PCB 87-88

66      Mr O’Brien’s opinion is the high point of the plaintiff’s case as far as the medical opinions are concerned.  Based on the history and activities of the plaintiff, I do not accept that Mr O’Brien’s opinion is an accurate assessment of the plaintiff’s current consequences as a result of his left and wrist injuries.  Mr O’Brien does not recommend any active treatment for the plaintiff and notes that the plaintiff is not receiving any treatment other than the ingestion of Panadol to control the pain on occasions. 

Consequences of the injury to the plaintiff

67      The plaintiff has affirmed two affidavits on 13 September 2011 and 22 February 2013.  The plaintiff was also cross-examined and re-examined in the course of this application.  The plaintiff deposes to the following consequences as a result of the injury to his wrists.

Sleep

68      The plaintiff, in his first affidavit, states that his sleep is interrupted by the aching in relation to his pain due to cold weather.  He noted that his sleep is interrupted between two to four nights out of seven in the week.[66]  In his later affidavit, the plaintiff deposes that he continues to wake at night.  He states that the reason for his sleep being interfered with on this occasion is because of the pain when he rolls over onto his wrists and causes him to wake in pain.[67]

[66]PCB 34

[67]PCB 38-39

69      I accept that the interruption to a person’s sleep is a significant consequence for them.  However, in this case, I do not accept that the plaintiff’s sleep or sleep pattern is interfered with to the extent that could be properly described as “very considerable”.

Pain

70      In the assessment of the pain and suffering consequences of an injury to a plaintiff, it is important to distinguish between the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities, including the plaintiff’s capacity to work and his enjoyment of life. 

71      In this case, the plaintiff states that he has pain in his wrists and, as I have previously indicated, the pain in his wrists sometimes wakes him at night.  The plaintiff has travelled overseas on no less than ten occasions since the time of his injury until the time of this hearing.  There was no evidence from the plaintiff that set out the restrictions caused to him in his travels as a result of the pain in his wrists.  The plaintiff continues to conduct a childminding business from his home in Carlton.  His taxation return for the year ending 30 June 2012 indicates his income from that business is $34,000.[68]

[68]DCB 33

72      The plaintiff does not receive any ongoing manual or physical treatment for his pain symptoms.  His evidence is that he rubs a balm on his wrists at night.  I do not find that the pain consequences as described by the plaintiff could be properly described as being “very considerable”.

Medication

73      The plaintiff has given evidence that he applies a heat balm to both wrists.  He also stated that he took fish oil to assist with his wrist condition.[69]  The only medication that the plaintiff takes for pain relief is Panadol, which he buys from time to time.[70]

[69]T11

[70]T47

74      I do not accept that these medications and use of heat balms amounts to a significant consequence for the plaintiff.

Ongoing treatment

75      The plaintiff receives some treatment from non-Western medical practitioners on his trips to India.  He has described these treatments as “cupping” and the withdrawing of blood from his wrists.  He has also described the use of massage and application of heat balms.  The plaintiff gave evidence that on the advice of his mother, he has been drinking camel’s milk to increase his calcium intake.[71]

[71]T35

76      The last treatment from a doctor in Australia for his wrists was in July 2011.[72]

[72]T45 and PCB 99

77      The lack of formal medical treatment in an ongoing manner is indicative that the consequences of the plaintiff’s wrist condition is not significant for him. None of the treating doctors reviewed in these reasons advise any ongoing medical treatment for the plaintiff’s wrist conditions.

Activities of daily living

78      The plaintiff has given evidence that he is involved in all of the activities of daily living with his wife and four children.  He is able to partake in the household and shopping chores.  I find that he did not describe any particular reduction in his ability to perform his role as a father or husband in terms of the management of the children or household. 

Work

79      The plaintiff’s current position is that he conducts a childcare business.  In his evidence, he stated that he had recently, that is in April of 2013, obtained a licence to drive trucks on the wharf.  He was awaiting the outcome of security checks by the Australian Federal Government to be able to partake of employment as a truck driver on the wharves in Victoria.  It is clear from this evidence that the plaintiff is not in any way limited in his capacity to work as a truck driver.  The only limitation in truck driving work is his ability to manipulate and manoeuvre loads on the truck.  There is no evidence from the plaintiff that he will not be able to engage in the truck driving work to and from the wharf in Melbourne.

80      In the past, the plaintiff had worked as a truck driver in 2008.  This was between his first and second trip overseas.[73]

[73]T49

81      He has also worked as mail clerk at Hollis.[74]  The plaintiff has also worked as a taxi driver on occasions to the extent of 20 to 30 hours per week.[75]  The plaintiff is also a licensed security guard and crowd controller and has worked casual shifts as a static guard since the time of his injury.

[74]T 53

[75]T56

82      I conclude that whilst the left and right wrist injuries may impose some minor restrictions on the full range of employment that the plaintiff could undertake, he is able to engage in full-time employment such as a truck driver or in his current capacity as a childcare operator.  In the course of his evidence, the plaintiff complained that he could not partake in sport any longer.  It is to be noted that whilst he is acting as a child carer, he is still able to kick the ball around with the children.[76]  I do not accept that the plaintiff’s reluctance to play soccer due to the risk of falling and injuring his wrists is a significant consequence for him.

[76]T71

Conclusion

83      As I have previously noted in these reasons, I find that the plaintiff is a reasonably frank and accurate witness. 

84      I am required to assess the consequences in terms of pain and suffering which the plaintiff’s injury to his wrists has occasioned him.  I am required to determine where the facts on this particular case sit in a broad spectrum of cases.  The test to be applied is whether the plaintiff’s pain and suffering consequences, when judged by comparison with other cases in the range of possible impairments or losses of body function, may be fairly described as being more than “significant” or “marked” and as being “at least very considerable”.

85      I have taken into account in assessing the level of consequences for the plaintiff in respect of his wrist injuries, by also examining what capacities he has retained despite the injury to his wrists. 

86      I have taken into account the considerations set out in the cases of Haden Engineering Pty Ltd v McKinnon[77] and Sutton v Laminex Group Pty Ltd[78] to determine the impact of pain and the extent of it on the plaintiff in this case.  Ultimately, the decision I am required to make is a value judgment in which matters of fact and degree are to be taken into account when making the assessment of the total consequences to the plaintiff arising from his injury to his wrists.

[77](2010) 31 VR 1

[78][2011] VSCA 52

87      I conclude that, taking into account the consequences as I have found them to be, they are not of such a level to be properly described as being “very considerable”, either separately and individually or collectively as a group.  I am not satisfied the plaintiff’s impairment as a result of the injury to his wrists is more than “significant” or “marked” and properly described as being “at least very considerable”. 

88      The application for serious injury certification by the plaintiff is dismissed.

89      I will hear the parties on costs.

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