Azzopardi v TAC
[2011] VCC 1472
•12 September 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-00441
| JOSEPH AZZOPARDI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 and 2 August 2011 |
| DATE OF JUDGMENT: | 12 September 2011 |
| CASE MAY BE CITED AS: | Azzopardi v TAC |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1472 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – Section 93 – impairment to the right elbow – impairment to the right shoulder – bilateral upper limb impairment – disfigurement
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison SC with | Slater & Gordon |
| Ms M Pilipasidis | ||
| For the Defendant | Mr G Lewis SC with | Solicitor to the Transport |
| Mr C G K Madder | Accident Commission | |
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 8 March 2002 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is under s.93(17)(a) – “a serious long term impairment or loss of a body function”.
4 The body function relied upon by the plaintiff in this application is the right shoulder and right elbow separately and aggregated as an upper right limb impairment. The application is also brought in relation to serious disfigurement pursuant to sub section (b).
5 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
7 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.
8 The plaintiff relied on three affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
Background
9 The plaintiff is presently aged fifty four, having been born on 6 March 1957. He is separated with two adult children. He attended school to Form 2 at Collingwood High School.
10 After leaving school, for about twenty years the plaintiff worked as a building superintendent with GIO Australia Ltd until 1999. His duties generally involved repairs and maintenance and whilst the work was heavy at times, he coped with this employment without difficulty.
11 The plaintiff then worked as a truck driver for a garden supply company for about twelve months and then went into business with his brother in 2001 at Plenty Road Smash Repairs.
12 The work there was very physical but the plaintiff managed without difficulty. Eventually he left that job when his brother decided to buy his share.
13 In cross examination, the plaintiff said he went to work with his brother as the money was better. He did not have any panel beating training and just helped out. The plaintiff stopped working for his brother as there was not much work.
14 The plaintiff deposed that on the said date, he was working as a sub- contractor for Danihers, where he had been working for about two years.
The Accident and Subsequent Medical Treatment
15 On the said date, the plaintiff was driving his work van on the Bolte Bridge when a car in the next lane lost control and collided with the rear of his van, causing the plaintiff to lose control of his van (“the accident”).
16 As a result of the accident, the plaintiff’s van tipped over onto the driver’s side and slid for what seemed to be a long time, before coming to a halt. The plaintiff’s passenger, having undone his seatbelt, fell on top of the plaintiff. The plaintiff undid his seatbelt, but he could not get out of the van without assistance.
17 Following the accident, the plaintiff was in a state of shock and could see blood all over his right arm and inside the van and he was feeling very faint.
18 The plaintiff was taken by ambulance to the Royal Melbourne Hospital (“the Hospital”), where he was seen by a doctor who sutured his arm wound in Emergency. The plaintiff later attended the Hospital on three further occasions for review and the stitches were removed.
19 Within a very short time after accident, the plaintiff became aware of a lot of pain in his left elbow and also the right side of his neck and right shoulder, which was badly bruised.
20 The plaintiff saw his general practitioner, Dr Wong, on 28 July 2003, not long after his last review at the Hospital. The plaintiff told him of the same problems he had advised the Hospital; namely pain in his left elbow, the right side of his neck and right shoulder.
21 Dr Wong referred the plaintiff for an ultrasound on 29 July 2003. In addition to the pain already described, the plaintiff was also experiencing a very annoying and worrying sensation in his right elbow, which felt as if he had hit his funny bone, but the nerve pain would not go away. He also had an irritating sensation of numbness down the forearm.
22 Dr Wong referred the plaintiff to Dr Karlov, rheumatologist, who thought the plaintiff had nerve problems which may have been coming from his shoulder. Dr Karlov referred the plaintiff for physiotherapy, which did not help much. He also advised the plaintiff to have shoulder injections to see if they would help relieve the nerve type pain in his elbow and forearm. The plaintiff undertook a total of three injections, none of which helped relieve his pain.
23 Dr Karlov advised the plaintiff there was no treatment which would relieve his pain and he referred him to Mr Owen, orthopaedic surgeon, whom the plaintiff saw in March 2005.
24 Before that referral, the plaintiff was taking painkillers and having physiotherapy intermittently. The strong painkillers he was taking disagreed with him and made him feel a bit sick. The plaintiff then started to take six Panadol tablets a day. That medication was not all that helpful, but it did not make him feel ill.
25 Mr Owen referred the plaintiff for a CT scan of his right elbow, which was carried out in April 2005.
26 The plaintiff thought the next time he saw Mr Owen, he told him he had pain in the neck and also a facial palsy, which was how it had been described to him by a general practitioner, Dr Walia, whom the plaintiff saw out of hours when he needed some medication in June 2003. Dr Walia told the plaintiff that he had noticed the plaintiff’s face had drooped and that the plaintiff should tell his doctor about it.
27 Following the receipt of the CT scan, Mr Owen referred the plaintiff for another ultrasound of his right shoulder on 22 June 2005. Thereafter, he advised the plaintiff he had suffered a partial tear of his rotator cuff and suggested surgery, which was undertaken in September 2005.
28 Post-operatively, the plaintiff was advised by Mr Owen to keep his arm in a sling for six weeks. The plaintiff then recommenced physiotherapy, which he continued for some time in relation to both his right shoulder and elbow.
29 The plaintiff was involved in another transport accident on 9 November 2005 when he hit a pedestrian who stepped out in front of his car (“the second accident”).
30 The second accident did not aggravate the plaintiff’s physical injuries, but he was badly shaken up and felt a bit depressed after it and he had some treatment for depression and flashbacks with Ms Curran, psychologist.
31 The shoulder surgery gave the plaintiff some pain relief in the right shoulder, but it did not have any effect on the pain in his neck, right elbow or forearm. Mr Owen then advised the plaintiff to have right elbow surgery, which was undertaken in February 2006.
32 The elbow surgery turned out badly and the pain in the plaintiff’s right elbow and forearm worsened. The numbness became more like pins and needles and he had a sensation of coldness in his hand.
33 The plaintiff had some physiotherapy after the elbow surgery.
34 Mr Owen told the plaintiff he should have some pain management and referred him to Dr Lim at Olympia Hospital in Thornbury in 2007. As of April 2007, the plaintiff continued to see Dr Wong from time to time.
35 The plaintiff last saw Mr Owen at the time of the elbow surgery in February 2006.
36 The plaintiff last had treatment from psychologist Ms Curran four years ago. The plaintiff finally agreed in cross examination that he commenced counselling with her after the second accident.
37 The plaintiff has never been prescribed any tablets for anxiety or depression
Work after the Accident
38 At the time of the accident, the plaintiff operated a family partnership under the name True Care Cleaning, when sub-contracting for Danihers. On average, the plaintiff worked fifty hours per week
39 In cross examination, the plaintiff agreed that at the time of the accident he was a trainee supervisor. He disagreed he told Mr Owen that at the time of the accident he only did a limited amount of hands on work and that the manual work he did was on induction of new employees.
40 The plaintiff confirmed that while doing sub-contracting for Danihers he was both a trainer and doing hands on work, such as stripping and sealing floors, and window cleaning. He was probably moving more into the area of a supervisor but at the time of the accident he was also doing hands on work.
41 The plaintiff deposed he returned to work about two months after the accident. After a month he had to stop work because his duties were very hands on. The plaintiff deposed he found the pain in his right elbow and forearm and also his hand was aggravated by his work, as was the pain in his right neck and shoulder.
42 The plaintiff’s brother got him a job with a cleaning firm, Little D’s. The plaintiff was employed as a cleaning manager until early 2008, carrying out inspections of clients’ premises, quoting for cleaning and liaising with clients.
43 The plaintiff worked forty hours per week with a little hands on work, but not much. The plaintiff was paid $900 net per week, $300 net less per week than he earned at Danihers.
44 In 2007, the plaintiff deposed that he could not do hands on work any more and he was lucky to get the job at Little Ds. Even after a day in that job as a manager, the plaintiff was tired and his right elbow and forearm were sore, as was his right shoulder and neck.
45 In his second affidavit sworn in July 2011, the plaintiff deposed he finished working as a manger with Little D’s on 17 July 2008, having struggled with his accident injuries.
46 In cross examination, the plaintiff said he coped well with this job as there was little hands on work. He left this job because the business lost contracts and could not keep him on.
47 The plaintiff deposed that from January 2011 he has been working as a tip truck driver for NRCM Transport five days a week. His job involves driving a tip truck to the quarry site, to be loaded with asphalt, and then he drives the loaded truck to a yard site to tip the load off. The plaintiff does about six trips each day and earns around $55,000 per year
48 In cross examination, the plaintiff was asked about a number of jobs that he had not deposed to, but details of which were set out in the summary of his income.
49 It became clear that the plaintiff worked for his brother at Total Property Maintenance (“TPM”), then Nick Neda, and then Xcavate It, before he started work with NRCM at the beginning of 2011. The plaintiff was not sure why he had not mentioned these other jobs in his affidavit.
50 After the plaintiff left Little D’s, there was then a gap until he worked for Neda and started work with NRCM. The plaintiff worked for Neda for about nine or ten months from January 2010. He left that job for more pay
51 The plaintiff agreed he first worked for TPM two or three years ago. It was his last job before he commenced work with NRCM. This job involved working as a manager for the company which carried out maintenance work, plastering, painting and cleaning.
52 The plaintiff agreed he also worked at a company called Xcavate It, after he worked at Neda for about five or six months on a tip truck.
53 The plaintiff deposed that as a result of his injury, he is earning far less than he was before the accident. He does not enjoy his current work as a driver, but there are very limited job opportunities available to him in cleaning, due to his physical restrictions and limitations caused by his accident injuries.
54 In cross examination, the plaintiff confirmed that his current job does not involve any hands on work. He just loads and unloads sitting in the truck. When driving, he has to hold his arms out in front of him for half an hour to forty five minutes, but he has an arm rest on the driver’s side of the truck
Taxation Return Summary
Taxable
Financial Year Income Source
July 1998 to June 1999 $44,484 La Porta Holdings Pty Ltd $6,183
GIO Australia $33,744
July 1999 to June 2000 $25,620 Plenty Road Smash Repairs $6,000
La Porta Holdings Pty Ltd $15,641
July 2000 to June 2001 $31,235 Joseph Azzopardi t/a [?] $52,242 July 2001 to June 2002 $28,896 Joseph Azzopardi t/as $78,868 Partnership: $[????]56 True Care Cleaning Split wife: $27,858 (family partnership) Plaintiff: $196 $57,000 – 8 x 12 $85,500 July 2002 to June 2003 $54,413 TJTD Family Trust $20,000 TJTD Family Trust Supply Chain Results Pty Ltd $35,218 (Little D’s) July 2003 to June 2004 $60,055 Little D’s $60,449 July 2004 to June 2005 $63,009 Little D’s $63,485 July 2005 to June 2006 $62,524 Little D’s $63,452 July 2006 to June 2007 $61,151 Little D’s $61,961 July 2007 to June 2008 $61,467 Little D’s $62,441 July 2008 to June 2009 $37,688 Little D’s $4,803
TPM $36,613
July 2009 to June 2010 $39,802 Neda Cleaning $13,061
TPM $2,520 Xcavate It $13,330 JB Paintastic $6,551
July 2010 to June 2011 NCRM Transport $55,000 55 As of 2007, the plaintiff deposed that he was having a lot of problems with his right elbow and forearm with persistent pain in his right elbow that could be mild and at times quite bad. He also had the sensation of “pins and needles” down his forearm.
56 Sometimes if he knocked his right elbow or did manual tasks involving pushing, pulling or straining, the plaintiff felt sharp pain and also cramping coldness in his forearm. When he got the “pins and needles” and coldness, he shook his hand, which sometimes removed the irritation. If he put pressure on the tip of his elbow, it produced a lot of pain. He avoided lying mainly on his right side because of his right elbow.
57 The plaintiff had a pain in his right shoulder like a persistent toothache sensation. The pain reduced his shoulder movements overall, losing about thirty to forty per cent of his overall capacity to move his right shoulder fully. Raising it above shoulder level could produce pain and a grabbing sensation in the shoulder and right side of his neck. He could not get his right arm up behind his back because of the restriction of movement at that level.
58 The plaintiff had facial drooping and sometimes got a little numbness in the right side of his face. He had not had treatment for that problem because his other issues have dominated.
59 As of 2011, the plaintiff continues to experience constant pain in his neck, right shoulder and elbow. The severity of his pain is variable and some days are better than others.
60 The plaintiff feels a persistent ache in his shoulder, which is consistently present and spreads to his right forearm and hand. He also has impaired sensation in his right hand and gets “pins and needles” with intermittent coldness in his hand.
61 The plaintiff agreed that he had a pretty good range of movement in both his shoulder and elbow, as recorded by various medico-legal examiners.
62 The plaintiff agreed that the strength of his right hand grip was almost equal to his left as Dr Lim had found and that he was capable of fine movements of his hand. Post-surgery, the range of movement of his shoulder has not been bad. The plaintiff agreed that he had a patchy loss of sensation in his forearm, as he described by Professor Stark.
63 When driving the tip truck, the plaintiff often suffers pain and discomfort from sitting for long periods of time. He manages his work by taking Panadol and taking breaks as and when required. In addition to six or seven Panadol each day, he also uses heat packs regularly.
64 The plaintiff continues to suffer facial drooping but has not had any treatment in this regard. He often has headaches which feel like they come from the pain radiating from his arm and shoulder up into his head.
65 To endeavour to cope with his symptoms, the plaintiff avoids undertaking any heavy lifting, forced neck movement, or strenuous arm movement. As a result of his right arm pain, he is greatly restricted in his ability to lift objects with his right dominant hand. Reaching behind his back with his right hand can also aggravate his right arm pain.
66 As a result, the plaintiff remains restricted in performing heavy housework. He does attempt to do some home duties, such as mowing the lawn by doing a little bit at a time and with breaks. He has also modified the way he does things. However, he finds if he uses his right arm a lot, he will suffer sharp increased pain in his shoulder and arm.
67 In 2007, the plaintiff’s house needed painting but he could not do it because of his right arm problems. He then had assistance with gardening and mowing. Doing simple things around the house and going shopping was more difficult when it involved use of his right arm.
68 The plaintiff is divorced from his ex-wife, Karen, and currently lives with a new partner, Brenda. She does most of the cooking and cleaning and the plaintiff’s brother assists with heavier chores.
69 The plaintiff deposed, in his August 2007 affidavit, that the physical injuries suffered in the accident had really made a difference to his recreational activities. He owned a Harley Davidson motorbike which he liked riding but he could no longer go on long rides and missed doing so with his friends.
70 In his recent affidavit, the plaintiff deposed that lately he has not been riding motorcycles as much as he used to prior to the accident, because of increased anxiety together with the pain symptoms with his right arm and hand. When he occasionally does ride, the plaintiff avoids travelling long distances or on highways because his right forearm and hand goes numb from gripping onto the handlebar for prolonged periods.
71 In cross examination, the plaintiff described that with his arm extended on the controls, his right elbow became very stiff and painful and “pins and needles” and coldness really started to set in. The plaintiff found it very difficult to hold his arm in that position.
72 The plaintiff has had his current bike which is registered CLKSC for about three years. He agreed occasionally he rode his bike. He is not a member of a club and used to go riding as often as once a week in the summertime. The plaintiff said he probably now does not even ride once a month. He just does not find much interest in it now.
73 The plaintiff was asked about a claim he made for use of his bike in his 2010 tax return where he set out a business use of 5000 kilometres. The plaintiff could have told his tax agent to make this claim. He could not remember if it was true.
74 In 2007, the plaintiff deposed that he could not cradle his grandson in his right arm. The plaintiff played social games of sport every now and then with his children, but doing something like bowling a cricket ball was something he tried to avoid. He tried using some weights to build up his upper body on the advice of his physiotherapist. However, any exercise involving bending his elbow with weights was just too painful, so he stopped it.
75 The plaintiff recently deposed that since the accident, he has remained frustrated. He cannot get physically involved and interact with his grandchildren as he would like to. He finds it hard to lift or carry them because of pain and weakness. He avoids playing sport such as cricket games with them, because certain movements like catching a ball or swinging a cricket bat can aggravate his pain.
76 The plaintiff continues to suffer from ongoing symptoms of psychological trauma and depression, including flashbacks to the accident, recurrent intrusive thoughts of the aftermath of the accident, and sensitivity to accident reminders such as Transport Accident Commission (“TAC”) commercials.
77 As a result of his accident injuries, the plaintiff’s whole life has been turned upside down. Previously he was a happy, active and outgoing person with numerous interests, but now he has very little motivation or interests. He finds it difficult to enjoy himself because he has poor energy and gets frustrated easily.
78 The plaintiff has not been prescribed any medication for anxiety or depression since the accident.
79 Currently the plaintiff is not seeking any treatment or taking any medication for psychological symptoms. He has not seen psychologist Ms Curran for three or four years. The plaintiff finally agreed that he in fact first saw her after the second accident.
80 The plaintiff’s injuries curtail every facet of his life by reason of pain and/or restriction affecting his social, domestic, recreational and work activities. He is saddened by the pain, restrictions and limitations that he continues to face each day.
81 In cross examination, the plaintiff confirmed he had registered the name JB Paintastic and Maintenance Services in June 2010. The plaintiff, in partnership with his wife, operates the business which does maintenance and painting work on a sub contracting basis.
82 The plaintiff still trades under that name. He could not recall when the business last had a job and was not sure whether it was before he started work with NRMC or after.
83 JB Paintastic had not been a runaway success and the plaintiff had only done a couple of jobs, being able to describe only one where he organised someone to paint a room for $400 or $500 and added a margin for himself.
84 The plaintiff was unable to provide much detail of the $9,000 business income in his current tax return. He was a supervisor on site and denied doing any hands on work. The plaintiff could not really explain $8,000 or so of expenses.
85 On the second day of the hearing, the plaintiff brought various business documents relating to JB Paintastic to court at the request of the defendant’s counsel.
86 The plaintiff was cross examined in relation to the JB Paintastic tax invoice book for the period from 1 February to 1 April 2010 and also the business income and expenditure cashbook.
87 The plaintiff did a couple of little jobs as a subcontractor for TPM and also a job for Ray White Real Estate and Alchemy Projects. The sum of $877 was paid to a contractor on 2 March on the Alchemy project job. The plaintiff put the handles on a door for the Ray White job.
88 The plaintiff liaised with TPM clients on his brother’s behalf and he also did invoicing and made sure his brothers contractors were getting their work done.
89 The $9,000 business income set out in the plaintiff’s 2010 tax return was made up of the jobs in these work books.
Other Health Problems
90 The plaintiff was cross examined about an injury to his right wrist when he fell and fractured his scaphoid in December 2008. There was no mention of this injury in his affidavits.
91 The plaintiff underwent surgery for this injury in 2009. The plaintiff agreed it was very painful and it could really have taken him out of employment for 2009 and it would have been unlikely he could do any physical work during that time.
92 The plaintiff confirmed that he also had problems with blood pressure and takes tablets every day, but no restrictions have been placed on him by his doctor in this regard.
93 For years the plaintiff has had a problem with tightness in his chest and at times pain down his left arm. The plaintiff underwent tests for this complaint in February 2010 and saw Dr Wong on a number of occasions in 2009 in relation thereto. The plaintiff described how chest pain sometimes happens out of the blue, but he has not been getting it lately and cannot remember the last time he did.
Scarring
94 Whilst the plaintiff was in the witness box, I viewed the scarring on his right arm. There was visible scarring from lacerations from the glass on the ulnar aspect. There was a thin surgical scar following the line of the forearm. There was a further scar from the elbow surgery which went under the plaintiff’s bicep onto the front of his elbow.
The Plaintiff’s Medical Evidence
95 The plaintiff attended the Emergency Department of the Hospital on 8 March 2002, following the accident, complaining of pain in his right forearm and elbow.
96 On examination, the plaintiff was noted to have lacerations and abrasions, road dirt and glass over the right elbow and forearm. The area was cleansed, debrided and irrigated. The lacerations were sutured under local anaesthetic. The plaintiff also complained of right shoulder pain, which was diagnosed as a soft tissue injury.
97 The plaintiff was next seen by an occupational therapist in the Hand and Wound Clinic at the Hospital on 14 March 2002. His elbow appeared clean and healthy and was redressed and mobilisation of his hand was instituted.
98 When seen on 21 March 2002, the plaintiff complained of tenderness of the right elbow wound when touched. The wound looked clean and fifty per cent of the sutures were removed. Gentle mobilisation was suggested and the plaintiff was seen by the occupational therapist and advised against heavy lifting.
99 On 28 March 2002, the remaining sutures were removed and the wound was satisfactory. Gentle mobilisation was recommended. The plaintiff has not been seen at the hospital since that time.
100 Dr Walia, from the North End Medical Centre in Epping (“North End”) reported on 1 April 2003.
101 The plaintiff presented at the Medical Centre on 25 June 2002 with a history of the accident.
102 Dr Walia reported the plaintiff had a history of a sore right elbow with possible glass in it. The plaintiff was seen on 11 March 2002 by Dr Yacoub and was given analgesia for his right elbow.
103 The plaintiff also incidentally noticed having right-sided facial weakness on 25 June 2002 and was reviewed in relation thereto on 27 June and 18 September 2002.
104 Dr Walia concluded the plaintiff suffered from soft tissue injuries to his right forearm and elbow, which could have been caused by the accident.
105 As of April 2003, Dr Walia thought the plaintiff’s condition had substantially stabilised and there was no risk of further deterioration in his condition. He considered continuing conservative treatment was appropriate.
106 Dr Wong, at the Greenbrook Medical Centre and later Epping Plaza, first saw the plaintiff on 28 July 2003. The plaintiff was then complaining of numbness in the medial side of his right elbow.
107 An ultrasound of the right elbow was reported as showing tendinosis in the common flexor tendon origin and prominence was noted at the visualised right ulnar nerve in the region of the elbow.
108 There was still pain and numbness in the right elbow on examination in August 2003.
109 On 13 September 2003, the plaintiff advised his right shoulder had been sore since the accident. There was tenderness in the right upper shoulder and the plaintiff’s neck was stiff. The plaintiff’s right elbow was still sore but he was getting used to it, and there was pain when he rested it. The plaintiff had been referred to Dr Karlov, rheumatologist.
110 On examination on 30 October 2003, the plaintiff mentioned to Dr Wong that he had had an injection in his right elbow.
111 On 21 December 2005, the plaintiff complained of pain in the right shoulder on lifting his arm and he was tender over the upper shoulder. An ultrasound reported the possibility of supraspinatus tendinopathy and adhesive capsulitis.
112 In August 2005, the plaintiff attended Dr Wong and advised that shoulder surgery had been approved with Mr Owen the following month.
113 After the shoulder surgery, the plaintiff was still unable to lift his arm over 30 degrees because of pain and he was undergoing physiotherapy at that time.
114 On 23 January 2005, the plaintiff was sent for nerve conduction tests by Dr Karlov and told he might need right elbow surgery.
115 Right elbow surgery took place in February 2006. When reviewed in March 2006, the plaintiff’s wound had healed well, but he had right shoulder and elbow pain and he was unable to fully straighten his right arm or lift it to 75 degrees.
116 On 1 March 2007, the plaintiff mentioned he was not getting much sleep because of right shoulder pain.
117 On the next attendance referred to in the report, in May 2011, two areas of glass foreign bodies were identified on the plaintiff’s right forearm, with the plaintiff advising numerous small pieces of glass had surfaced over the years. The plaintiff continued to have pain in his right shoulder and hypersensitivity in his right elbow. Dr Wong concluded the plaintiff still suffered from right shoulder and elbow pain and the ulnar nerve was still very sensitive. Dr Wong thought the plaintiff may need ongoing analgesics and referral to a surgeon for possible future surgery.
118 Dr Wong noted the plaintiff was not able to use his right elbow and shoulder fully, which was a serious consequence for him, given his right arm was the dominant one.
119 Dr Wong thought the plaintiff’s injuries would restrict his work and exercise options and he had a reduced capacity for physical activity.
120 Dr Karlov, rheumatologist, reported on 25 February 2005.
121 The plaintiff was then complaining of “pins and needles” in the fingers of his right hand and pain in his right shoulder.
122 On examination, there was a limitation of shoulder movement and the plaintiff had rotator cuff syndrome on the right, due to multiple tendon involvements, but particularly the supra and infraspinatus. There was a thickening of the ulnar nerve at the elbow and a positive Tinel’s sign.
123 There was no doubt, in Dr Karlov’s view, the accident caused all the above injuries and he then thought the plaintiff’s condition had substantially stabilised. He considered it likely the plaintiff would develop osteoarthritis of the right elbow. He thought the plaintiff needed physiotherapy, particularly ultrasound to his shoulder and elbow and he would probably also benefit from local steroid injections.
124 Mr Owen, orthopaedic surgeon, reported in July 2005, having seen the plaintiff on referral from Dr Karlov in February 2005.
125 In March 2005, the plaintiff complained to Mr Owen of pain in the medial side of his left elbow and numbness in his right hand following the accident.
126 On examination, there were scars distally from the elbow in the area of the ulnar border of the forearm. The plaintiff had a positive Tinel’s sign at the area of the right elbow over the ulnar nerve and he had decreased sensation in the ulnar nerve distribution and decreased power in the dorsal interosseous muscles and grip, indicating he had significant ulnar nerve palsy. Right elbow movements were full.
127 The plaintiff was tender in the shoulder and there was a loss of full elevation. An ultrasound subsequently showed a partial tear of the rotator cuff, fitting in with the plaintiff’s symptom complex.
128 As far as the elbow and forearm were concerned, Mr Owen thought the plaintiff did have evidence of an ulnar nerve neuropathy and suggested a CT scan.
129 Mr Owen found it hard to attribute the plaintiff’s subsequent ulnar nerve problems and rotator cuff tendinitis to the accident.
130 Mr Owen noted the plaintiff did not return for review on four subsequent occasions. On 30 June 2005, the plaintiff advised his right shoulder was the main problem, and Mr Owen thought he could probably help him by doing a sub-acromial decompression of the shoulder.
131 Mr Owen thought it possible the accident caused the rotator cuff tear, but it was difficult to understand how the ulnar nerve was injured in the absence of any direct laceration of the nerve. Mr Owen noted there did not appear to be an underlying anatomical problem that was responsible for the palsy, so in the absence of any other cause, he thought it would seem possible that the plaintiff suffered a direct contusion of the nerve in the accident.
132 Mr Owen reported that it was not until December 2003 that Professor Stark noted the problems with the elbow and the probable involvement of the ulnar nerve and also the right shoulder. However Mr Owen found no evidence of osteoarthritis in the plaintiff’s elbow and he did think he would develop significant osteoarthritis.
133 Mr Owen reviewed the plaintiff in December 2005 and July and October 2006.
134 Mr Owen carried out an ulnar nerve decompression and medial epicondyle excision on 2 February 2006 for a tardy ulnar nerve palsy.
135 Mr Owen concluded it was reasonable to accept the elbow injury related to the accident. He expected the pain in the area of the elbow to improve with decompression and over a longer period of time, and that the ulnar nerve symptoms of numbness would slowly improve as well, but he thought it likely the plaintiff would have an ongoing disability in his hand. He then thought it was unwise to offer the plaintiff shoulder surgery.
136 Mr Owen thought the plaintiff would have problems doing his job as a cleaner with regard to his shoulder and arm problems, particularly working above horizontal or reaching out. He noted the plaintiff had considerable psycho- social problems and, with him developing a chronic state in his arm, Mr Owen felt the plaintiff was virtually unemployable at that stage. He suspected that with Dr Lim’s care and rehabilitation, the plaintiff may become employable in the future.
137 In a supplementary report of 18 January 2007, Mr Owen stated that he would not go as far as to say the shoulder symptoms related to the original injury.
138 Mr Owen considered the plaintiff’s non-physical problems made him virtually unemployable. In his view, the shoulder problems would limit the plaintiff doing overhead work but should not prevent him doing a lot of his work as a cleaner with his arms below horizontal, for example. Similarly, with an ulnar nerve neuropathy, he noted it may under normal circumstances diminish the grip strength and utility of that hand, but the plaintiff should still be capable of some work from a purely physical point of view.
139 Mr Owen concluded, however, there were lot of other factors at play and although it was not his area of expertise, he imagined the plaintiff would be labelled as having a Post Traumatic Stress Disorder.
140 The plaintiff was first treated at Lalor Physiotherapy Centre in May 2006. Physiotherapist, Justin McGrath, reported in October 2006 that the plaintiff had developed a chronic right upper limb condition since the accident.
141 The plaintiff’s right shoulder was very weak, painful and restricted in all planes of movement. His right elbow was painful, and his hand regularly felt numb with pins and needles in the fingers.
142 Further assessment by a neurologist was suggested. At that stage, Mr McGrath reported the plaintiff was in considerable pain and his elbow and shoulder injuries severely affected his life. He was guarded about the plaintiff’s long term prognosis.
143 In an April 2008 report, Mr McGrath concluded the plaintiff had a chronic condition affecting his right upper limb, relating to ulnar nerve impingement around the elbow, a condition which was permanent and related to the accident.
144 Mr McGrath recommended the plaintiff should not lift anything over five kilograms with his right arm and not perform any repetitive work or heavy manual work in the future. Any future work to be done must be of a light nature only with minimal strain placed on the right shoulder.
145 The plaintiff also had physiotherapy from the Hadfield Physiotherapy Centre, where he was seen by Suresh Takyar. He was first seen there on 30 April 2008 and a report of that date was provided, and a functional capacity and activities of daily living assessment were carried out.
146 On 25 January 2007, Dr Lim, consultant in rehabilitation and pain medicine, first saw the plaintiff on referral from Mr Owen for assessment and management of his chronic pain syndrome.
147 Dr Lim subsequently supervised the plaintiff’s attendance at Olympia Rehabilitation Centre and then Ivanhoe Pain Rehabilitation Program, last seeing the plaintiff in May 2008.
148 On examination in January 2007, the plaintiff had a significant reduction in active right shoulder range of motion. Palpation revealed exquisitely tender myofascial trigger points distributed in the right paracervical-shoulder girdle and upper limb muscles including the brachialis muscle on the medial side of his right arm, consistent with a regional myofascial pain syndrome, and reflecting the development of central sensitisation. The plaintiff had severe discomfort to light touch in the forearm, with no evidence of wasting of the intrinsic muscles of his right hand. Grip was about 95 per cent of the left.
149 Dr Lim thought the plaintiff was suffering a chronic or persistent pain due to the combination of contributing factors including myopathic central sensitisation and neuropathic causes (ulnar neuritis), a consequence of injuries sustained in the accident.
150 Dr Lim focussed on addressing the myopathic and central sensitisation contributing components. The plaintiff was commenced on a trial of Lyrica to treat the neuropathic component, and also referred to the pain program.
Medico-Legal Evidence
151 Mr Hadj, general surgeon, examined the plaintiff on 4 August 2003.
152 The plaintiff told him of the accident, after which he was off work for four weeks and he then resumed his work normally as a cleaner. At that time of that examination, the plaintiff was not having active treatment.
153 The plaintiff told Mr Hadj the pains in his right shoulder come and go and that he had pain over the scar in his right elbow, describing a shooting pain over the medial aspect and a hot feeling on the anterior aspect of the right forearm. The plaintiff told him that he was somewhat embarrassed by the appearance of his right elbow scar.
154 On examination of the right shoulder, the plaintiff had a full range of movement. He had a scar measuring 14 centimetres, which was well healed, but was quite obvious and prominent. There was some tenderness present over the scar itself and there was a full range of movement in the right elbow.
155 Mr Hadj concluded the plaintiff sustained bruising to the right shoulder and a laceration of his right elbow in the accident. He thought the plaintiff had made a reasonably good recovery from the right shoulder, but still had some residual pains in the right elbow. There was no structural damage to the arm. The scar on the right arm was embarrassing.
156 Mr Hadj thought the plaintiff’s prognosis was reasonably good and with time, his pain should become less.
157 Mr Hadj noted the plaintiff was working in his original job without any restriction.
158 Mr McArthur first examined the plaintiff for medico-legal purposes in December 2004, at which time he diagnosed a right forearm laceration, right shoulder injury, possible right peripheral nerve injury and nervous reaction.
159 Mr McArthur reviewed the plaintiff on 4 July 2006. He then thought the plaintiff’s right hand would continue to make him unfit to return to full time physical work as a window cleaner, and he noted fortuitously the plaintiff was able to continue the non physical managerial aspect of the cleaning business. The plaintiff continued to enjoy the relaxation of riding his motor cycle, but not for longer distances.
160 Mr Murray Stapleton, plastic and hand surgeon, examined the plaintiff initially in November 2003, and more recently on 13 July 2011.
161 On re examination, Mr Stapleton noted the scar overlying the elbow joint was tender to the extent the plaintiff could not put any pressure on it, thus leaning on a desk top was q problem for him.
162 The right forearm scars were uncomfortable and the plaintiff was careful not to bump them. He told Mr Stapleton that windscreen glass still comes from that area from time to time.
163 Mr Stapleton noted the plaintiff had normal elbow joint movement and the arthroscopic scars on the right shoulder had healed without any difficulty. The plaintiff’s shoulder was painful, should he roll on it, and he was careful for it not to be bumped.
164 From time to time, the plaintiff had ulnar nerve difficulties, such that he periodically got “pins and needles” in the little and ring fingers of his right hand, symptoms not present on the last examination, but present from time to time. He said he also noticed fleeting “pins and needles” in the pulp of his right thumb.
165 On re examination, there was an eleven centimetre scar overlying the inner aspect of the plaintiff’s right elbow. The abrasion scars over the upper aspect of his right upper forearm extended for 14 x 7 centimetres.
166 Mr Stapleton could find no evidence of sensory loss in the little or ring fingers, indicating at the time he saw the plaintiff, no interruption to the neural outflow from the ulnar nerve at the elbow joint.
167 Mr Stapleton thought there appeared to be no further prospects of deterioration and there was no indication that medical treatment was now required. However he noted that, of course, was an open question for the right shoulder, which may give the plaintiff problems in the future.
168 Mr Stapleton thought the plaintiff suffered from a serious injury, one which was serious enough for him not to go back to the job which he enjoyed as an industrial cleaner. Using his left hand, the plaintiff was able to perform his duties as a tip truck driver.
169 Mr Stapleton thought the plaintiff’s right shoulder and fleeting ulnar nerve problems together with a tender scar on his elbow, prevented him from being involved in physically active pursuits in the future.
170 There were two photographs of the plaintiff’s scarring attached to Mr Stapleton’s report.
171 Associate Professor Richard Stark saw the plaintiff on a number of occasions; namely, 18 December 2003, 27 June 2005, 20 July 2006, 7 January 2010, and most recently 30 June 2011.
172 On most recent examination, the plaintiff’s neck movement range was essentially normal and cranial nerves were unremarkable. The right shoulder showed a slightly restricted range of movement, so that, for example, the plaintiff could abduct to about 150 degrees.
173 Tests of power were a little tentative in the right arm, particularly those movements that put any pressure on the right shoulder.
174 Professor Stark was not convinced of any neurogenic weakness. He found there was well preserved muscle bulk and strength in the muscles of the hand supplied by the median nerve and in those supplied by the ulnar nerve.
175 On sensory testing, there was subtle reduction of pin prick sensation involving the ulnar, one or two digits of the right hand. Reflexes in the upper limbs were normal.
176 The right ulnar nerve was palpably thick and very sensitive at the right elbow with a strongly positive Tinel’s sign. Neurological examination of the lower limbs was normal.
177 Professor Stark noted the plaintiff’s condition had not changed significantly from a neurological perspective since the January 2010 examination. The plaintiff still had a markedly irritable ulnar nerve at the right elbow, noting persistent symptoms despite surgery. Professor Stark thought it was true that transposition of the ulnar nerve could conceivably improve the situation, but that was by no means guaranteed.
178 Professor Stark considered it was clear the plaintiff’s symptoms had a major impact on his life, with a reported major impact on loss of earning capacity. He noted the plaintiff was able to work full time as a driver of a tip truck, where he earned less money than in his previous work as a cleaner.
179 Professor Stark accepted that the plaintiff’s neurological and orthopaedic problems precluded him from working in his pre-injury employment and that those problems had some impact on his day to day activities. Professor Stark thought that throughout all the time he had seen the plaintiff, the plaintiff had battled on as best he could with his injury and he never had the impression the plaintiff was maximising or overstating his difficulties.
180 Professor Stark concluded it was possible that patients with fibrosis around the ulnar nerve may develop gradual delayed loss of function in that nerve distribution, and this would certainly be a potential risk in the plaintiff’s case. Professor Stark noted at that stage, motor function in the distribution of the righter ulnar nerve appeared satisfactory and sensory loss was only very minor in degree.
181 Professor Stark thought conservative medical treatment was reasonable. Whilst a surgeon could comment on the risks and potential benefits of ulnar nerve transposition, his view was that the benefits would not clearly outweigh the potential risks. He believed the plaintiff had suffered serious injuries and that those injuries had restricted his ability to be as physically active and to enjoy life in the same way as he did prior to the accident.
182 Mr Russell Miller, orthopaedic surgeon, initially examined the plaintiff on 8 December 2009 and re-examined him on 15 July 2011.
183 On re examination, the plaintiff complained of neck pain and discomfort which radiated into the shoulders and further down his arms, particularly the right. The plaintiff had ache and discomfort in his right elbow, mainly on the medial side, and he was tender. He reported numbness in the fourth and fifth fingers. He had problems with anxiety and depression, and he also thought his facial appearance had altered since the accident.
184 On examination of the cervical spine, there was diffuse tenderness and some restriction of movement.
185 On examination of the right shoulder, there was no deltoid muscle wasting. There was mild tenderness in the region of the acromioclavicular joint and there was some restriction of movement.
186 Examination of the right elbow revealed a scar behind the medial aspect of the elbow, with tenderness in the area, and a positive Tinel’s sign. There was mild discomfort and the elbow was stable to examination. There was some restriction of right wrist movement and some irritability. Neurovascular examination revealed diminished sensation in the fourth and fifth fingers and some minor wasting of the hypothenar eminence.
187 Mr Miller noted the plaintiff had suffered injury to his right shoulder and undergone surgery, presumably for impingement syndrome. There was a persisting degree of capsulitis and he believed the prognosis for that was only poor.
188 Mr Miller noted the plaintiff had suffered injury to the right elbow and had surgery in the form of ulnar nerve transposition and decompression. There were ongoing clinical features of ulnar nerve dysfunction and the prognosis of that was only fair.
189 Also, in his view, the plaintiff suffered injuries to his right wrist, with proper features of a carpal tunnel syndrome, but he did not believe the plaintiff currently had those.
190 Mr Miller accepted the plaintiff had recovered from the right scaphoid injury in the distant past.
191 Mr Miller thought the plaintiff was not fit for his pre-injury work, noting he had returned to work as a truck driver, but that did not involve any significant work and in any case, the plaintiff had significant symptoms at work.
192 Mr Miller thought it was unlikely the plaintiff’s condition would change. He considered the plaintiff was only at low risk of developing arthritic disease and on balance was unlikely to do so. Further, the plaintiff was unlikely to do so to the point where he would require major surgical intervention. In his view, the plaintiff had an ongoing requirement for conservative treatment and he did suffer serious long term affects of his injuries.
193 Mr Miller thought the plaintiff’s injuries impacted on his capacity for physical activity from the point of view of employment, domestic, gardening and leisure activities.
194 Bridget Curran, psychologist from Mawarra Services Pty Ltd, provided a report in January 2006 at the request of the plaintiff’s solicitors.
195 Ms Curran then thought the plaintiff would meet the diagnostic criteria for post traumatic stress disorder, adjustment disorder with mixed anxiety and depression.
196 Ms Curran noted the second accident had reinforced the plaintiff’s opinion that driving and road usage was an extremely dangerous activity and exacerbated his post traumatic stress disorder symptoms.
197 Ms Curran recommended the plaintiff continue to receive psychological treatment on a weekly basis, with a review in June 2006.
Investigations
198 Dr Wong organised a right elbow ultrasound in July 2003. It was reported there was a small 7 millimetre zone of reduced echogenicity in the common flexor tendon origin consistent with tendinosis. Some prominence was noted at the visualised right ulnar nerve in the region of the elbow when compared to the left. This was noted to be of doubtful significance.
199 A nerve conduction study carried out on 24 October 2003 demonstrated evidence of a very mild right tardy ulnar palsy and a very mild left carpal tunnel syndrome. There were symptoms suggesting the possibility of a right carpal tunnel syndrome and a right ulnar nerve lesion.
200 An ultrasound of the right shoulder was carried out at Mr Owen’s request on 22 June 2005. It was reported there was a suspected small partial tear of the supraspinatus tendon.
201 On 6 October 2006, at Mr Owen’s request, the plaintiff’s right shoulder was x-rayed. There was no abnormality identified.
The Defendant’s Medical Evidence
202 The defendant relied on two examinations by Dr Wong relating to the plaintiff’s cardiac problems; the first on 18 November 2004 and the latter on 15 February 2010 when Dr Wong referred the plaintiff to a cardiac clinic because of left-sided chest pain.
203 The plaintiff was examined on two occasions by neurologist, Professor Davis, initially in November 2009 and more recently in January 2011.
204 On re examination, the plaintiff had pain with movements of his right shoulder and elbow. There was no definite weakness in any of the muscles of the right arm but Professor Davis thought a minimal ulnar neuropathy could not be excluded, given the fact the plaintiff developed tremor and fluctuation of effort when testing intrinsic muscles of the right hand.
205 Reflexes in the right arm were normal and there were no long track signs. Reflexes in the lower limbs were normal with flexor plantar responses. The plaintiff seemed to adequately perceive pin prick over both median and ulnar distributions in the right hand.
206 Professor Davis concluded that the plaintiff’s condition had been fairly stable since he last saw him in 2009.
207 In his view, the plaintiff clearly had soft tissue injuries to the right shoulder, right elbow and quite possibly the cervical spine, as a result of this accident. He did not think the plaintiff’s right arm pain reflected cervical radiculopathy. He thought it would be reasonable to say that the plaintiff’s problems in the right arm were due to the accident, rather than pre-existing cervical spondylosis.
208 Professor Davis confirmed the plaintiff had ongoing symptoms which were chiefly orthopaedic and related to his right shoulder and elbow. He thought the plaintiff also probably had a fairly minimal residual right ulnar neuropathy, which could be further quantified with nerve conduction studies. Professor Davis emphasised there was no objective weakness in any of the muscles of the right arm.
209 In Professor Davis’s view, the plaintiff had chronic pain problems and some restriction in the function of his right arm but was able to work full time in a suitable alternative occupation. The plaintiff had some symptoms related to the right scaphoid fracture, which Professor Davis thought was a fairly minor component of the overall picture.
210 Professor Davis considered that the plaintiff was clearly able to work in a suitable occupation, although he would have restricted ability to perform any heavy work with his right arm. Professor Davis noted there had also been some impact on the plaintiff’s domestic and leisure activities. In Professor Davis’s view, the plaintiff did not require any operative or other treatment.
211 Mr Brendan Dooley, orthopaedic surgeon, examined the plaintiff on two occasions, initially in November 2009 and most recently on 24 March 2011.
212 Recent examination of the plaintiff’s cervicothoracic spine revealed a full painless range of movements in the neck, without evidence of muscle spasm.
213 Examination of his right shoulder revealed a normal right acromioclavicular joint. There were healed arthroscopic portals anteriorly and posteriorly, active and passive movements were limited but there were no signs of impingement now, and tests for impingement were negative.
214 The plaintiff had flexion of his right shoulder to 160 degrees, extension to 30 degrees, abduction to 140 degrees, adduction to 30 degrees and internal and external rotation to 60 degrees.
215 Examination of the right elbow revealed an 11 centimetre very well healed scar. Tinel’s sign over the ulnar nerve, which could not be felt accurately, but was probably behind the medial epicondyle, was positive and tender. Examination of the right elbow joint itself was normal with full extension, flexion, pronation and supination.
216 In the outer aspect of the proximal forearm laterally and dorsally, there was an area of multiple healed lacerations and grazes over an area approximately 9 centimetres x 3 centimetres wide. This was irregular but well healed and caused no functional impairment. There was no numbness over it and there had been no area of full skin thickness loss.
217 In the plaintiff’s right wrist and hand, he had no signs of muscle wasting in any of the muscles supplied by the ulnar nerve. He had no evidence of wasting in any of the intrinsic muscles and power was normal. There was no sensory loss in the distribution of the ulnar nerve to the ulnar side of the dorsum of the hand, and also on the volar aspect, with no sensory loss in any of the fingers.
218 From the bone grafting procedure for the scaphoid bone, the plaintiff had an eight centimetre long scar on the radio volar aspect of the wrist extending to the base of the thumb. He had limited movements in the right wrist joint, relating to the carpal scaphoid fracture, with flexion limited to 30 degrees, extension to 40 degrees, radial deviation to 10 degrees, and ulnar deviation to 15 degrees. In the right hand, there were no signs of complex regional pain syndrome.
219 Mr Dooley concluded that the plaintiff was still difficult to assess because of anxiety and stress. He considered the diffuse symptoms the plaintiff complained of were probably out of proportion to the physical findings of injury to his right arm. There were no signs the plaintiff had any soft tissue injury to his neck, which was clinically normal.
220 Mr Dooley thought the probabilities were that as a result of the accident, the plaintiff sustained soft tissue injury to the supraspinatis tendon of the rotator cuff of his right shoulder, with minor tearing, treated by arthroscopic sub- acromial decompression, allegedly with no improvement.
221 In Mr Dooley’s view, the plaintiff also probably sustained injury to the ulnar nerve on the posterior inner aspect of his right elbow joint, causing paresthesia extending to the inner forearm and the ulnar two fingers of the right hand, treated by ulnar nerve compression with no improvement.
222 Mr Dooley noted the plaintiff suffered from ongoing pain and mild stiffness in the right shoulder and ongoing paresthesia resulting form his right ulnar neurosis, with no neurological abnormality noted affecting either the motor fibres or sensory fibres in the distribution of the right ulnar nerve. The plaintiff had a residual loss of grip in the right hand related to the right shoulder and elbow injury and now, in part at least, related to the fractured carpal scaphoid bone, following fracture in December 2008, unrelated to the accident.
223 Mr Dooley thought, overall the prognosis was good, noting the plaintiff had a good return of movement in his right shoulder following the soft tissue injury to the rotator cuff. The right acromioclavicular and the glenohumeral joint were normal. Mr Dooley thought the plaintiff was unlikely to develop post traumatic arthritis involving any of the joints in his right shoulder joint. Also, Mr Dooley considered the plaintiff was unlikely to re-rupture or injure the rotator cuff of his right shoulder.
224 Mr Dooley noted the lacerations to the region of the right elbow joint were well healed and required no revision surgery and the right elbow joint itself was normal.
225 Mr Dooley believed the plaintiff had suffered post traumatic ulnar neuritis to the ulnar nerve in the region of the right elbow joint.
226 Mr Dooley noted the reduced grip strength in the right hand of 15 kilograms compared to 45 kilograms in the non-dominant but noted it was difficult to assess whether the apparent loss of grip strength was real or not. He thought the probabilities were that the plaintiff had only slight lack of power in his right arm, shoulder and elbow relating to the accident; the remainder was due to functional elements and in part also to the operation and injury of the fractured carpal scaphoid bone.
227 Mr Dooley believed the plaintiff’s right shoulder gave him only minimal problems and his prognosis was good. He thought the plaintiff had continuing symptoms of a right ulnar neuritis, but the right elbow joint was otherwise normal.
228 The plaintiff told Mr Dooley his right shoulder gave him ongoing mild symptoms constantly and occasionally woke him at night. The right elbow joint itself gave him no problems but he had ongoing symptoms relating to the right ulnar neuritis, which Mr Dooley thought did not relate to the plaintiff’s cervical spine condition which pre-existed the accident.
229 Mr Dooley thought the reduced power in the plaintiff’s right arm, which was difficult to assess, was probably related half to the fractured scaphoid bone and half to the right ulnar neuritis and shoulder injury related to the original accident. Mr Dooley thought there was no clinical evidence of any carpal tunnel syndrome relating to the accident.
230 In Mr Dooley’s view, no surgery was indicated for the right shoulder, nor would surgery help the right wrist. The only query was whether surgery might help the plaintiff’s persisting right ulnar never irritability and symptoms but Mr Dooley thought that was doubtful. Mr Dooley commented that one would need to know from Mr Owen, the treating surgeon, what was the nature of the ulnar nerve surgery. If the nerve was merely decompressed, then possibly transferring the nerve to the anterior aspect of the right elbow might alleviate the plaintiff of his symptoms.
231 Mr Dooley thought the accident injuries interfered only probably to a minor degree as the plaintiff’s work now did not involve any repetitive lifting or heavy use of his right arm as he did no loading or unloading and merely drove a tip truck. Domestic and leisure activities would only be affected to a minor degree, but Mr Dooley noted that at home the plaintiff was irritable and complaining and upsetting his current partner and there was doubt as to whether this relationship would continue.
232 The plaintiff was examined by psychiatrist, Dr Entwisle, on 7 February 2011.
233 The plaintiff told him that since the accident he got impatient and was quieter than before and wanted to stay at home and had become somewhat withdrawn. He had let his physical appearance “go a bit” and he got down in the dumps occasionally. He continued to describe symptoms of anxiety and he was cautious on the road and very safety conscious and nervous in traffic.
234 The plaintiff told Dr Entwisle his sleep was disturbed by pain. He tended to be weak and tired and a little forgetful.
235 On mental state examination, the plaintiff’s memory and concentration were intact. There were no perceptual abnormalities noted and his insight was present. His affect was anxious and subdued. He was not visibly distressed or agitated.
236 Dr Entwisle noted the plaintiff continued to describe low grade symptoms, chronic post traumatic stress disorder and an adjustment disorder with mildly depressed mood, subsequent to pain and incapacity.
237 Dr Entwisle considered the prognosis for the plaintiff’s psychiatric injuries was reasonable, noting he had re-partnered since the accident and continued to work, but the plaintiff did report a lower level of psychological and physical functioning.
238 Dr Entwisle thought the plaintiff’s injuries, from a psychiatric point of view, did not impact on his ability to work, which was the fault of his physical symptoms. The plaintiff’s psychiatric injuries did impact in some ways with the plaintiff’s domestic and leisure activities with the plaintiff not being as outgoing or involved as he was and he tended to have become somewhat withdrawn.
239 Dr Entwisle thought the plaintiff’s psychological symptoms were the result of direct consequences of the accident, in part, with some features secondary to the plaintiff’s experience of pain and incapacity.
Other Documents
240 The plaintiff’s individual taxation return for the financial year 2000-2001 set out an income of $31,235. His main business activity was described as cleaning services. Total business income was $52,242 with expenses of about $20,000.
241 The plaintiff’s individual taxation return for 2009-2010 set out income totalling $37,481, made up of $13,061 from Neda Site Cleaning, $2,520 from TPM, $13,330 from Xcavate It and sickness benefits totalling $2,019. The plaintiff’s income also included a profit of $6,551 from his business, JB Paintastic.
242 The total business income from JB Paintastic was $9,232, from which the plaintiff claimed a deduction of $878 for subcontracting expenses.
243 The plaintiff claimed a work-related car expense for his motorbike of $3,150, representing usage of 5,000 kilometres.
Overview
244 I am satisfied the plaintiff suffered an injury to both his right elbow and right shoulder in the accident.
245 I accept that the shoulder condition is one of right rotator tendinitis and that there is damage to the ulnar nerve affecting the right elbow.
246 The defendant accepted liability for a subacromial decompression of the right shoulder carried out in September 2005 and an ulnar nerve decompression and medial epicondyle excision carried out in February 2006.
247 Whilst treating surgeon, Mr Owen, expressed some doubt as to the relationship between the shoulder injury and the accident, he sought funding from the defendant for this procedure. All other medical practitioners considered the elbow and shoulder injuries were accident related.
248 There is no suggestion that the plaintiff experienced any problems with his right elbow or shoulder prior to the accident.
249 However, subsequent to the accident, the plaintiff suffered a fracture of the right scaphoid in December 2008. Save for Mr Dooley, who thought half of the plaintiff’s reduced power in the right arm related to that injury, no other medical practitioner has attached much significance to it.
250 Although it was an injury which the plaintiff agreed put him out of manual work for about a year, I accept that the fracture is not playing a significant part in the plaintiff’s current presentation.
251 Professor Davis thought the right scaphoid symptoms were a fairly minor component of the overall picture and Mr Miller thought the plaintiff had recovered from this injury.
252 Whilst there was a separate application in relation to each shoulder, in my view it is permissible to aggregate the shoulder and elbow impairments as they arose out of the same incident and relate to the same limb.
253 I accept that the arm as a whole is a relevant body function. There are numerous decisions of the County Court to this effect, including:
ƒ Aird v Trade Paints per his Honour Judge Lewis (27 October 2000) - arm-
shoulder-elbow;ƒ Brines v QBE Mercantile Mutual Worksure Ltd & SCS Refrigerated Transport Pty Ltd [2005] VCC 1072, per her Honour Judge Lawson - elbow and forearm;
ƒ Mijovski v South Pacific Tyres Pty Ltd [2007] VCC 1103 per his Honour
Judge Higgins - right arm and right shoulder; andƒ Ristovska v VOA Webco Pty Ltd (No 1) [2010] VCC 0153 per her Honour
Judge K L Bourke.
Credit of the Plaintiff
254 Much of cross-examination in this case was focused on the plaintiff’s credit
255 It became clear that the plaintiff had not disclosed the true extent of his work, subsequent to the accident, not having mentioned employment with TPM, Xcavate It, Neda and his own business, JB Paintastic in his affidavits.
256 The impression gained from the plaintiff’s most recent affidavit and confirmed by him in examination in chief, was that he did not work between ceasing work at Little Ds because he could not physically cope with his duties, and then starting tip truck driving at NCRM in January 2011.
257 However, in cross examination, the plaintiff said that he in fact left Little Ds because work ran out and that he was coping quite well with his duties as it was not hands on work
258 Further, the work undertaken by the plaintiff after Little Ds before he commenced with NRCM was not insubstantial. In the 2008-2009 financial year, he earned $36,613 with TPM. The following year, he earned $2,500 from that work, together with $13,300 from Xcavate It driving a tip truck and $13,061 from Neda Site Cleaning, also truck driving. Further, the plaintiff also earned $6,550 from his own business, JB Paintastic.
259 The plaintiff also failed to mention the right scaphoid fracture and the fact that he was unable to work for much of 2009 because of that condition. This omission was of some significance as the plaintiff’s case mainly focuses on the alleged interference with his working life as a result of ongoing problems with his right upper limb.
260 The failure to mention other health problems, including blood pressure and suspected coronary difficulties and pains in his left arm, was not of particular relevance.
261 Further, the plaintiff’s evidence as to his motorbike riding at the present time was unsatisfactory. He could not explain why he claimed 5000 kilometres in his 2009-10 taxation return when he said he no longer went on long rides. Either he does not ride this distance and that claim was improperly made, or he does so and his level of riding is much greater than he admitted.
262 Whilst there is no surveillance film or any medical opinion that the plaintiff exaggerated his symptoms on examination, I have difficulty accepting him as a witness of truth given the significant omissions from his affidavits and the inconsistencies between what he deposed to and what he finally conceded in cross examination.
263 I do not accept the submission that the plaintiff’s work record since the accident, which he finally disclosed, shows that he is a stoic man, as submitted by his counsel.
264 Although I have concerns about the plaintiff’s credit, I accept that his right upper limb complaints are organically-based.
265 Whilst Mr Dooley commented that the diffuse symptoms were probably out of proportion to the physical findings of injury, he thought the plaintiff had sustained injuries to both his shoulder and elbow in the accident.
266 Although Mr Owen noted the plaintiff had considerable psycho-social problems and may attract a Post Traumatic Stress Disorder diagnosis, he operated on the plaintiff’s upper right limb on two occasions.
267 Professor Davis confirmed the plaintiff had ongoing symptoms which were chiefly orthopaedic and related to his right shoulder and elbow. Mr Miller shared this view.
Consequences
268 The issue then is whether the consequences of the right upper limb impairment are serious.
269 Looking first at the plaintiff’s complaints of pain and limitations resulting from his right upper limb injuries.
270 The plaintiff complained of right shoulder pain immediately following the accident on attendance at the Hospital. Whilst his elbow complaints dominated the early clinical picture, he continued to experience shoulder pain leading to surgery in September 2005.
271 The plaintiff deposed that despite surgery, he continues to experience a persistent ache in his shoulder which spreads to his right forearm and hand.
272 Whilst I accept the plaintiff would have difficulty with heavy lifting or strenuous right arm movement, particularly overhead arm movements because of his injury, he has a fairly full range of shoulder movement as shown on recent examination and accepted by him.
273 The plaintiff’s elbow complaints have also continued despite surgery in February 2006. The sensation in his right hand is impaired with a feeling of pins and needles with intermittent coldness in his hand. The elbow is tender to touch. Glass most recently emerged from the plaintiff’s forearm in May 2011 as he reported to Dr Wong.
274 However, the plaintiff agreed that his right grip strength is nearly the same as his left and he does not have difficulty with fine movements of his right hand. Further, the plaintiff agreed that at times he has a full range of elbow movement.
275 Professor Stark confirmed this position on clinical examination, finding that motor function in the distribution of the righter ulnar nerve appeared satisfactory and sensory loss was only very minor in degree.
276 I accept that household tasks and maintenance and gardening work involving heavy, repetitive and particularly overhead movements are difficult for the plaintiff but he continues to engage in such activities. He can still mow the law but does so at a slower pace. The same can be said for his interaction with his grandchildren. He continues to interact with them but he is not as “hands on” as he was before the accident.
277 I do not accept that the upper limb injury has had a significant effect on the plaintiff’s enjoyment of motorbike riding. The plaintiff either rides the bike the distance he claimed in his taxation return or he has not in fact ridden the bike and he has made an improper claim, which is a matter going to his credit. Further, I do not accept that there is any particular anxiety associated with motorbike riding, as previously described by the plaintiff to Ms Curran.
278 The plaintiff has not undergone treatment from his treating surgeon since 2006. He has not undertaken any hands on treatment or required prescription medication since that time. His medication regime is over the counter Panadol, albeit in relatively large regular quantities of six or seven per day. He also uses heat packs regularly.
279 No further treatment has been suggested. Medico-legal examiner, Mr Stapleton, thought surgery was an open question for the right shoulder – a view not shared by treating surgeon, Mr Owen. Professor Davis did not think there was any further surgery required.
280 Mr Miller considered the plaintiff was only at low risk of developing arthritic disease and on balance was unlikely to do so. Further, he thought the plaintiff was unlikely to do so to the point where he would require major surgical intervention. Professor Stark considered the benefits of ulnar nerve transposition surgery would not clearly outweigh the risks.
281 Counsel for the plaintiff submitted that the plaintiff’s injuries had serious consequences in terms of his employment capacity.
282 The plaintiff’s case was that at the time of the accident, he was a hands on cleaner who intended to continue working as a sub-contractor in what was said to be a lucrative field.
283 It was submitted that the plaintiff was better off financially working in a “hands on” job and he would have not have headed in the supervisory direction had the accident not occurred.
284 In the eight months prior to the accident, the earnings of the plaintiff’s partnership were $60,056. It was submitted that if the plaintiff had worked the full year such earnings would have exceeded $80,000 to be split between the plaintiff and his wife. On this basis, it was submitted there was a loss of income as the plaintiff now earns only $55,000 as a tip truck driver.
285 Whilst the plaintiff conceded his role was supervisory to some extent at the time of the accident, he described his work as both hands on and supervisory in nature. However, at the time of the accident, the plaintiff agreed he was probably heading more towards a supervisory role.
286 There was no affidavit material from any employee of Danihers suggesting the plaintiff’s work was not of this nature at the time of the accident or thereafter.
287 After some weeks absence from work following the accident, the plaintiff returned to supervisory duties which he continued for three months until leaving to work for his brother at Little Ds in a better paid, supervisory job.
288 In the years following the accident whilst working for Little Ds until 2008, there was little hands on work and the plaintiff earned in excess of $60,000 per annum.
289 Since leaving Little Ds, the plaintiff worked for TPM in a similar role and has also managed to do two tip truck driving jobs until commencing work with NRCM earlier this year.
290 Generally, I found there was a willingness on the plaintiff’s part to describe his various work situations, or omit to mention them, in terms which best suited his case.
291 I am not satisfied that the plaintiff had a particular desire to continue working as a hands on cleaner, but for the accident. His career was clearly taking a different path at the time of the accident – a path he pursued until 2008 when he left Little Ds because the work ran out – not because he could no longer cope with hands on work as he originally deposed. It was also the path he pursued with TPM in more recent times.
292 I am not satisfied that the plaintiff has established a loss of income based on his right upper limb injuries. His current duties, albeit not requiring extensive use of his right upper limb, are full time and he earns $55,000 per annum. He has earned in excess of this figure every year since the accident save for 2009, when he did not work at all because of his right scaphoid injury.
293 I am not satisfied that working as a supervisor or a tip truck driver is a consequence of the plaintiff’s upper limb injury that can be described as “serious” under the Humphries v Poljak test.
294 Whilst there is medical support for the view that the plaintiff is unable to undertake heavier, repetitive cleaning duties because of his injuries, this is not a serious consequence for him, given the career path he was pursuing at the time of the accident and that he continued thereafter in a predominantly supervisory role and, at times, also undertaking tip truck driving.
295 Whilst the plaintiff has had ongoing problems and pain since the accident in relation to both his elbow and shoulder, and given their duration, these are likely long term, I do not consider that any impairment at the present time is serious.
296 I am of this view, having also considered the expected mental/emotional consequences of the plaintiff’s physical injures, such as frustration with his various restrictions, as I am permitted to take into account when considering the seriousness of his physical impairment: see Winneke P in Richards v Wylie.
297 Taking into account all the evidence, I am not satisfied that the plaintiff has a serious injury in relation to either his shoulder or his elbow viewed separately, or aggregated and considered as an impairment of the right upper limb.
298 Accordingly, the plaintiff’s application pursuant to sub section (a) is dismissed.
299 Further, I did not find the plaintiff’s scarring to be particularly unattractive or offensive to observation. Whilst the plaintiff had described some embarrassment at the scarring to various medical examiners, it was by no means the focus of the plaintiff’s complaints. There is no suggestion of the requirement for any revision surgery or complications in the future.
300 In my view, the scarring is not serious and the application in relation thereto is also dismissed.
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