Azzopardi v WPC Group Ltd
[2013] VCC 127
•5 March 2013
| 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-11-02167
| JASON AZZOPARDI | Plaintiff |
| v | |
| WPC GROUP LTD | First Defendant |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 February 2013 | |
DATE OF JUDGMENT: | 5 March 2013 | |
CASE MAY BE CITED AS: | Azzopardi v WPC Group Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 127 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – disfigurement – psychiatric injury – loss of function of right upper limb – pain and suffering damages only – whether “serious injury” threshold satisfied
Legislation Cited: Accident Compensation Act 1985, ss134AB(38)(a), (b) and (c)
Cases Cited:Ingram v Ingram [1996] 2 VR 435; Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33; Mobilio v Balliotis [1998] 3 VR 833; Baker v Transport Accident Commission [1977] 1 VR 662
Judgment: Leave granted for pain and suffering damages only.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms Amanda Ryan | Nowicki Carbone |
| For the Defendants | Mr J Batten | Lander & Rogers |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 17 May 2011 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 arising out of or in the course of his employment with the first defendant. The plaintiff alleges that he injured his right arm whilst in the course of his employment with the first defendant on or about 2 April 2009.
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages only. The application for serious injury certification was made in respect of:
(a)the physical injury;
(b)disfigurement of the right arm; and
(c)the psychiatric or behavioural disturbance to the plaintiff.
3 The following evidence was adduced and tendered during the hearing:
·The plaintiff gave evidence and was cross-examined.
·The plaintiff tendered the following documents:
§Exhibit A – the Plaintiff’s Court Book (“PCB”), pages 1 to 9(c), pages 17 to 25(a) and pages 26 to 77.
·The defendants tendered the following documents:
§Exhibit 1 – the Defendants’ Court Book (“DCB”), pages 6 to 45;
§Exhibit 2 – notes of the rehabilitation therapist, Ms McCulloch;
§Exhibit 3 – notes West End Physiotherapy and Pilates dated 4 May 2010 and attendance notes.
4 At the commencement of the application, Ms Ryan, on behalf of the plaintiff, stated that the issues for consideration in applications for serious injury were:
(a)whether the consequences of the claimed injury to the right arm were “serious” to the extent of satisfying the statutory requirement;
(b)whether the consequences of the claimed injury to the right arm were permanent;
(c)whether the disfigurement in the form of the 19-centimetre scar to the right arm constituted a “serious injury” under the statutory definition for “disfigurement”; and
(d)whether the plaintiff suffered a severe long-term mental or psychiatric disturbance.
5 It was clear from the cross-examination of the plaintiff by Mr Batten, for the defendants in this application, that the credit of the plaintiff was in issue. It was put squarely to the plaintiff that he was not making, and had not made any attempts to rehabilitate himself subsequent to his injury. The motivation put to the plaintiff by Mr Batten was that he was simply waiting for the litigation process to be completed.
The statutory scheme
6 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”.
7 The plaintiff seeks a serious injury certificate for permanent serious disfigurement pursuant to sub-paragraph (b) of the definition for “serious injury” as set out in s134AB(37) of the Act. The test for serious injury is the same as the other categories of serious injury set out in the serious injury definition in the Act.
8 In Ingram v Ingram,[1] Callaway JA stated:
“Quite apart from authority, it is important not to read para(b) in isolation. ‘Permanent serious disfigurement’ within the intendment of the statute must be such disfigurement as bears comparison with such injuries as serious long-term impairment of a bodily function, severe long-term mental illness and loss of an unborn child.”[2]
[1][1996] 2 VR 435
[2]at 438
9 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.[3]
[3]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”.[4]
[4]Barwon Spinners, 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) Subsection (38)(e) provides that in a claim for loss of earning capacity, that 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)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
10 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
11 The plaintiff was born in October 1989 and is now aged twenty three years. He lives with his parents and sister in the family home.[5]
[5]PCB 1
12 The plaintiff completed Year 12 at St Paul’s College in Altona North in 2008. He subsequently undertook training at the International Security Training Agency to qualify as an unarmed guard and security officer. This work also entitled him to be a crowd controller.[6]
[6]PCB 1
13 The plaintiff, whilst completing Years 10, 11 and 12, worked part time in a local Kentucky Fried Chicken franchise. Subsequent to obtaining his security qualification, he worked for a few months as the attendant security officer at a factory.
14 On 1 April 2009, the plaintiff commenced work with the first defendant as a trainee in warehousing. As part of his training, the plaintiff was sent to his host employer, which was a company by the name of All Trade Industrial Supplies. On 2 April 2009, the plaintiff was injured at that place of work. As a consequence of the injury, he was hospitalised.
Injury with the first defendant
15 The plaintiff attended work at All Trade Industrial Supplies on 2 April 2009. In fact, this was his second day of work with the first defendant and at the host employer, All Trade Industrial Supplies. The plaintiff was asked by Michael Matheson, the owner and manager of All Trade Industrial Supplies, to assist him in the placement of filing cabinets on a pallet and guide him with the pallets up onto a mezzanine floor. Mr Matheson was operating a forklift. The plaintiff was instructed to access the mezzanine floor via a ladder. There were no safety rails around the area or signs at the top of the mezzanine floor. The plaintiff climbed up the ladder and, in taking his first step onto what he thought was the mezzanine floor, fell through what turned out to be a “floating” ceiling, landing on the concrete floor of the kitchen some metres below. Parts of the ceiling fell in on him.
16 As a result of the fall, the plaintiff fractured his right humerus and there was damage to the radial nerve in his right arm. He was originally taken to The Alfred Hospital by ambulance but was then transferred to the Sunshine Hospital, where he was operated on.
17 There was no dispute in this application that the plaintiff was in fact injured at work. The real issue from the plaintiff’s perspective in respect of the physical injury was whether or not the consequences of that injury met the statutory test for “serious injury”.
The plaintiff’s medical treatment
18 Immediately after the plaintiff was injured, he was taken by ambulance to The Alfred Hospital. He was then transferred to the Sunshine Hospital.[7] At the Sunshine Hospital, the plaintiff was found to have suffered an oblique fracture through the humeral mid-shaft with almost 90 degrees of medial angulation of the distal fragment. There was also a large butterfly fragment lying at the medial aspect of the fracture. The plaintiff was initially treated by plaster back slab and the alignment of his comminuted mid-humeral shaft fracture had improved but moderate medial angulation and displacement of the distal fragments persisted.[8]
[7]PCB 3
[8]DCB 7
19 On 3 April 2009, under general anaesthetic, an open reduction and internal fixation of the fracture was performed. It was found that his radial nerve was intact. The plaintiff remained in the Sunshine Hospital until 6 April 2009. The fixation to the plaintiff’s right humerus was in the form of a plate and screws.
20 After the plaintiff was discharged from the Sunshine Hospital, he wore a plaster cast on his right arm for approximately three weeks. His right arm was then placed in a splint for approximately three months.[9]
[9]PCB 4 paragraph 19
21 The plaintiff has received medical treatment and consultation with Dr Frank Laska, a consultant physician and rheumatologist. He has also received treatment from Melanie McCulloch, hand therapist, on a three-times a week basis following his initial surgery. He has not received any further treatment from Ms McCulloch since April of 2010.[10]
[10]PCB 4 paragraph 22
22 The plaintiff also received some physiotherapy treatment from Ms Annie Percy to his right arm, which commenced in about December 2009 and ceased in June of 2010.[11]
[11]PCB 4 paragraph 23
23 In the course of time since the injury, the plaintiff has attended his general practitioner, Dr Harold Lifson. At the present time, this is approximately on a monthly basis. He was referred to the psychologist, Mr Tony Pirotta, by Dr Lifson in October of 2009. The plaintiff ceased his attendances and consultations with Mr Pirotta on 1 April 2011. The plaintiff has not been receiving any psychological or psychiatric treatment from specialists since that time.
24 As at the time of the application, the plaintiff does not receive any active medical treatment. He takes medication in the form of Panadol approximately two to three tablets per week as and when required. The plaintiff gave evidence that he did not like taking medication and was concerned about becoming addicted to medication after his initial hospital experiences of morphine-based medication at the time of his initial injury. Whilst I do not find that the plaintiff is of stoical disposition, I do accept his explanation as to why he does not take medication for the purposes of pain relief.
Scarring/permanent serious disfigurement
25 The plaintiff sought a serious injury certificate pursuant to the definition of “serious injury in s134AB(37)(b) of the Act. The plaintiff is required to prove that the permanent serious disfigurement, being a scar of 19-centimetres to the back of his right arm as a result of the surgery, satisfies the requisite test under the legislation.
26 The incision is a posterior longitudinal incision measuring some 18 centimetres, with a small anterior extension in the lower of the incision.[12] Mr Kierce, orthopaedic surgeon, describes the longitudinal incision as broad.[13] I have had the advantage of inspecting the scarring or disfigurement in the Court hearing. The scar is properly described by the doctors as long and broad.
[12]DCB 20
[13]DCB 20
27 There were neither photographs nor expert evidence from a plastic surgeon in respect of the scarring and disfigurement to the posterior side of the right arm of the plaintiff.
28 I have regard to the statements made by Brooking J in Baker v Transport Accident Commission,[14] where his Honour said that regard had to be had to the number of scars, their location, their size and the degree of obviousness, as parameters for determining whether or not the scar was serious in the sense of the Act. In this case, the scarring is to the posterior side of the right arm of a young man. The position of the scar on his body is such that, on his evidence, it does not particularly worry him, as he cannot see it. He gave evidence that he is careful to put sunscreen on the scar when he goes out and it would be exposed to the sun. The plaintiff gave evidence that he readily would wear a t-shirt and similar clothing where the scar would be obvious to anyone and this did not concern him unduly other than when people asked him about it.
[14][1997] 1 VR 662 at page 664
29 On the basis the plaintiff’s subjective response to his scar and the objective observations made of the scar itself, I am not satisfied that the scarring or disfigurement meets the requisite test under the legislation for “serious injury”. I dismiss that part of the application for serious injury certification.
Psychiatric/psychological injury to the plaintiff
30 The plaintiff sought a serious injury certificate for a permanent severe mental or permanent severe behavioural disturbance or disorder. The law in relation to serious injury certification for mental or permanent behavioural disturbances or disorders is well settled. In the judgment of the Court of Appeal in Mobilio v Balliotis,[15] the meaning of severe was resolved. Brooking JA held, at page 846, that the change in the language from “serious” to “severe” betokens a change in meaning. Brooking JA stated that “severe” was used in the definition as a stronger word than “serious”. In short, the test for the plaintiff to satisfy is a very substantial test before a serious injury certification can be made under this heading.
[15][1998] 3 VR 833
31 The evidence is that the plaintiff is now fully employed at a call centre on a 38-hour week. He works five days a week. The plaintiff does not take any psychotropic or other medication for treatment in respect of psychological or psychiatric conditions. His evidence is that he is frustrated and angry at the fact that, because of his physical injuries, he cannot do all of the activities he previously performed prior to the injury arising from his employment. That evidence does not lay appropriate foundations for a finding that he is suffering from any severe mental or permanent severe behavioural disturbance or disorder.
32 The plaintiff has not received any ongoing treatment for psychological or psychiatric conditions. He has never been seen by a treating psychiatrist. He was seen by Mr Pirotta up until 1 April 2011. He has not sought any further psychological consultations since that time.[16]
[16]PCB 42
33 The plaintiff, in his affidavit material, stated that he ceased work due to pressures put on him by a manager at the first defendant. He took stress leave from 2 February 2010.[17] Mr Pirotta, psychologist, treated and supported the plaintiff at this time up until April of the following year. The stress arising from the treatment that the plaintiff received at his place of employment after the injury, and his recovery from physical treatment, are not a basis for a psychiatric or psychological condition in this application.
[17]PCB 5
34 The plaintiff also relies upon a report of Dr George Wahr, psychiatrist, dated 17 December 2012. Dr Wahr diagnosed the plaintiff with suffering from Post-Traumatic Stress Disorder as a result of the accident giving rise to his injury. Dr Wahr stated that the plaintiff suffered a 15 per cent impairment in respect of the primary disorder and 5 per cent impairment in respect of the secondary disorder for physical injuries. For the purposes of this application, any secondary psychiatric reaction is to be excluded. The basis for Dr Wahr’s diagnosis of Post-Traumatic Stress Disorder was the history given to him by the plaintiff that he thought he was going to die at the time of the accident.
35 Dr Stephen Stern, psychiatrist, examined the plaintiff on behalf of the defendants’ insurer on 14 April 2010 and provided a report of the same date.[18] At that time, Dr Stern diagnosed the plaintiff as suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Dr Stern took into account the plaintiffs history of victimisation by his employer as forming part of the background to form his diagnosis.[19] Dr Stern did not take any history from the plaintiff of the fear of being killed at the time of the accident.
[18]DCB 9
[19]DCB 12
36 I conclude that the opinion of Dr Wahr, made some three-and-a-half years after the accident, is not to be accepted and is inconsistent with the manner in which the plaintiff himself presents and gives evidence in this application. The plaintiff has been treated and/or examined by two psychologists and constantly attended to by his general practitioner, Dr Lifson, over the period. None of these medical practitioners have identified the condition of Post-Traumatic Stress Disorder. I prefer the evidence of the ongoing treaters in respect of the plaintiff’s condition for Depression and/or Adjustment Disorder to that of the rather late diagnosis given by Dr Wahr of Post-Traumatic Stress Disorder.
37 In conclusion, I do not accept that the plaintiff has satisfied the statutory test for mental impairment on the basis of the permanent severe test in relation to his claim pursuant to ss(c) under the Act.
38 I dismiss the plaintiff’s claim for serious injury certificate pursuant to s134AB(37)(c).
Injury to upper right limb
39 On 2 April 2009, the plaintiff fractured his right humerus when he fell through a ceiling at his place of employment whilst in the course of his employment with the first defendant. The plaintiff was treated at the Sunshine Hospital and was an inpatient there until 6 April 2009.
40 The plaintiff was reviewed at the Fracture Clinic of the Western General Hospital on 2 July 2009. At that time, the plate and screws which transfixed the healing fracture in the mid-shaft of the humerus was demonstrated. At that time, there was partial bridging callus which was evident. The plaintiff was further seen at the Orthopaedic Clinic at the Western General Hospital on 10 July 2009 and he was advised not to do any lifting at that time.[20]
[20]DCB 7
41 Professor Brand from the Western General Hospital described the injury as “a significant injury”.[21]
[21]DCB 8
The medical opinions
(a)Dr Harold Lifson
42 Dr Lifson, general practitioner, prepared a total of eight reports between 8 April 2009 and 24 March 2012. These reports were part of the Plaintiff’s Court Book. I have read each of those reports. In his report dated 11 December 2009, Dr Lifson noted that the plaintiff had radial nerve weakness. Dr Lifson reports on psychological difficulties that the plaintiff suffered upon his return to work. As a result of that reaction by the plaintiff, Dr Lifson referred the plaintiff to a psychologist. The plaintiff’s difficulties in respect of his psychological reaction to return to work have now resolved, as he has changed his place of employment and has been in that employment for approximately three years.
43 Dr Lifson, in his final report, details the ongoing difficulties the plaintiff is having with his right arm injury. The difficulties outlined in that report refer to pain in the right arm which is worse in cold weather. Dr Lifson notes the plaintiff can no longer engage in weight training exercises at the gymnasium and has difficulty washing his car, due to the injury to his right arm.
44 Dr Lifson’s final opinion is that:
“His right humerus and radial nerve injuries are still having an impact on his daily activities and his plans for the future. The effects of these injuries will not diminish with time.”[22]
[22]PCB 25
45 It is clear from Dr Lifson’s reports that he considers that the plaintiff’s condition has now stabilised and that the complaint the plaintiff has will continue for the foreseeable future.
(b) Dr Frank Laska
46 Dr Frank Laska is a consultant physician and rheumatologist. Dr Laska prepared a total of eight reports dated between 30 July 2008 and 11 June 2012. Initially Dr Laska saw the plaintiff for a left knee injury on 30 July 2008. Obviously this injury pre-dates the injury the subject of this application by the plaintiff. In his final report dated 11 June 2012, Dr Laska details his treatment of the plaintiff’s knee joint injury. In respect of the right upper limb injury, he simply defers to the appropriate care givers.[23] Dr Laska’s evidence is of limited value in this application. The best that can be said of his evidence is that he gives background information about other injuries to the plaintiff, in this case, his left knee.
[23]PCB 33c
(c) Ann-Marie Percy
47 Ms Percy, physiotherapist, prepared four reports for the purposes of this application dated between 29 January 2010 and 4 May 2010. The plaintiff was referred to Ms Percy at the beginning of January 2010. The purpose of the referral was that the plaintiff was to be treated for his weak and stiff right upper limb. At the time of the physiotherapy treatment, he was also under the care of a hand therapist, Ms Melanie McCulloch. The plaintiff continued with treatment from the physiotherapist up until June of 2010.
48 The purpose of the treatment from Ms Percy was to enable the plaintiff to gain strength and greater flexibility in the use of his right upper limb. In particular, Ms Percy suggested a gymnasium program to increase the right hand grip strength of the plaintiff and also to enable the plaintiff to be able to lift 10 kilograms with his right arm without pain.
49 The plaintiff gave evidence that he was unable to engage in the weight training to increase his ability to lift greater than the light weights of 1 or 2 kilograms with his right arm without production of pain. The plaintiff’s evidence was that whilst he continued with the gymnasium program, it was predominantly to do with his cardiovascular improvement and not to do with the weight tolerance required for his right arm.
(d) Mr Peter Kudelka
50 The plaintiff was sent to Mr Kudelka, orthopaedic surgeon, for medico-legal reporting in respect of this application. Mr Kudelka prepared two reports dated 15 August 2011 and 5 June 2012.
51 In his first report, Mr Kudelka, on examination, measured the circumference of the upper arm and right forearm. He noted that the right arm was one centimetre greater than the normal left arm, which would be normal for a right handed person. In his examination of the plaintiff’s right wrist, he noted that the dorsiflexion was limited to approximately half of the normal movement. He also noted that the ulnar and radial deviation was slightly less than normal. Mr Kudelka found that the plaintiff’s grip of his fingers in his right hand was incomplete and weak.[24]
[24]PCB 45
52 Mr Kudelka concluded as follows:
“My findings 11.8.2011 were that the fractured had clinically healed. There was some reduction of movement and strength in the right shoulder and some reduction in movement of the right wrist. There was also a reduction in the power of the grip of the fingers of the right hand. This was associated with a partial residual motor palsy of the right radial nerve.”[25]
[25]PCB 45
53 Mr Kudelka gave his prognosis on that date as follows:
“The general prognosis however is favourable. As to whether the plate and screws will require [to be] removed from the right humerus in the future the answer would be negative, as any such procedure would threaten the integrity of the radial nerve, which might sustain further damage if it is involved in the scar tissue from his injury and subsequent surgery.”[26]
[26]PCB 47
54 I note that the plaintiff, in giving evidence, stated that his reason for not having the plate out was in accordance with the advice or prognosis given by Dr Kudelka.
55 In his latest report dated 5 June 2012, Mr Kudelka made the following findings:
“He still has slight residual weakness and restriction of movement of the right shoulder and sleight (sic) weakness and restriction of the grip of the right hand, which could [be] preventing his returning to his pre-injury du[ti]es as a Warehouse Worker, but he has been promoted to more administrative and supervisory tasks, which he can carry out normally without restriction.”[27]
[27]PCB 64
56 Mr Kudelka does not recommend any further surgery in respect of removal of the plate and internal metallic fixtures for the plaintiff’s arm, nor does he recommend any revision of the scarring by a cosmetic surgeon.
(e) Mr John O’Brien
57 The plaintiff was also medico-legally examined by Mr John O’Brien, orthopaedic surgeon, who prepared a report dated 12 December 2012. Mr O’Brien took a history from the plaintiff as follows:
“Currently Mr Azzopardi describes fluctuating pain which he indicates involves most of the right upper arm. The patient states that this tends to increase during a normally active day, but in particular the patient states that the pain can be aggravated by using the arm at shoulder level such as washing his car, and also any vibrations such as mowing a lawn. He stated he has difficulty lifting and he feels that the right arm fatigues very easily. Mr Azzopardi stated that occasionally he is aware of some pain in the right shoulder, and there is also descried an intermittent burning sensation in the right proximal forearm, with overuse of the right arm. In addition he also reported that if he leaned on the medial aspect of the arm, he could experience pins and needles extending down into the right forearm and hand.”[28]
[28]PCB 65b
58 The plaintiff, in his evidence, gave the same history of complaints and ongoing difficulties relating to his right arm condition. I accept the plaintiff’s evidence in this regard and whilst he exhibits a degree of over-emphasis and focus on his disability, the plaintiff is giving an honest account of the difficulties as he experiences them.
59 Mr O’Brien found a mild weakness in the extension of the right wrist and fingers and also determined that there was a slight weakness in the grip strength, which was reduced.[29] Mr O’Brien gave the following opinion in his report dated 12 December 2012:
“Current signs now suggest very mild restriction of flexion and abduction of the right shoulder. The remaining joints of [the] right upper limb appear to have recovered a full range of movement. There appears to be no residual sensory deficit in relationship to the radial nerve, however, I did feel from the clinical perspective, there was very mild residual weakness, particularly in the distribution of the radial nerve. In fact it would be of interest to see the results of nerve conduction studies.”[30]
[29]PCB 65c
[30]PCB 65d
60 Mr O’Brien stated that there was no indication of any further active treatment required of the plaintiff, and specifically noted that the removal of the metal from the humerus would be contraindicated.[31]
[31]PCB 65d
61 Mr O’Brien’s final opinion was as follows:
“The patient does in fact describe some residual disability associate[d] with the right dominant upper limb. Pain and some loss of power has certainly restricted function of the right arm, and I would therefore consider this patient is not capable of undertaking pre-injury duties as a storeman, or indeed any employment which required manual physical duties. The patient however is physically capable of the suitable modified duties he is currently undertaking. Such modification of duties will be a permanent situation if the patient is to remain in the workforce. This patient, in my opinion, is definitely restricted in his general, social, domestic and recreational activities and this will be a permanent situation. The patient certainly has sustained a significant injury, the residual effects of which have had a severe impact on the function of his dominant arm.”[32]
[32]PCB 65d
(f) Professor Ian Brand
62 Professor Ian Brand prepared a report dated 11 July 2009 in respect of the treatment received by the plaintiff at the Western General Hospital. I have previously noted the comments and observations made by Professor Brand earlier in this judgment. At the time of his report, Professor Brand described the injury to the plaintiff’s right arm as a significant injury. At that time, Professor Brand expected that the plaintiff would have a good recovery but it was too early to state what the residual disability would be.
(g) Mr Paul Kierce
63 The plaintiff was sent to Mr Paul Kierce, orthopaedic surgeon, for examination for medico-legal purposes by the defendants in this case. Mr Kierce prepared a report dated 25 August 2010 and an addendum report dated 25 October 2010. The purpose of the report was to do an impairment assessment of the plaintiff relating to the upper extremity on the right side. At the time of his examination of the plaintiff on 25 August 2010, Mr Kierce was of the opinion that the plaintiff had recovered from the right radial nerve palsy but has had residual post-traumatic stiffness of the right shoulder joint.[33] Mr Kierce noted that the plaintiff complained of pain in his right shoulder on its outer aspect, and his upper right arm on its front and back aspects. He stated that the pain is increased during the cold weather or if the plaintiff leans on his arm at the point of the fracture. The plaintiff has also made complaint of weakness in his right hand and that it was painful for him to lie on his right side.[34]
[33]DCB 16
[34]DCB 18
64 At the time of his assessment in August 2010, Mr Kierce was of the following opinion:
“This young man sustained a comminuted fracture of the shaft of the right humerus in the fall on the 2nd of April 2009. The injury was complicated by a radial nerve palsy which has largely recovered leaving him however with some weakness in his right upper limb muscles.”[35]
[35]DCB 22
65 I note that Mr Kierce’s report in now some two-and-a-half years old and is of limited value in assessing the plaintiff as he is at the time of this application. Mr Kierce’s report, however, does fit consistently with the other medical treaters and/or experts that have given evidence in this case and in particular, confirms the complaints made by the plaintiff are consistent throughout the course of his treatment since the time of injury.
(h) Dr Dominic Yong
66 Dr Yong, specialist occupational physician, examined the plaintiff on behalf of the defendants and prepared a report dated 14 May 2012. The history outlined by the plaintiff to Dr Yong is consistent with the plaintiff’s evidence in the course of this hearing that he has intermittent pain with his right arm condition in the cold. He has also stated that the fatigue of muscles occurred after some general deconditioning. Mr Yong advised that this deconditioning could be reversed by an activities-based recovery program. The evidence of the plaintiff in this regard is that he is unable to partake of a full conditioning program due to the pain in his right arm when lifting even the smallest of weights.
67 I accept the preponderance of the medical evidence in regard to the plaintiff’s physical injury to the right arm is that he has made a reasonable recovery from a serious fracture of his right humerus. The doctors accept that he has had radial nerve palsy as a result of the fracture. I accept the medical evidence that that is the explanation for the ongoing weakness in his right arm and particularly his right wrist and hand. On balance, I accept that the medical evidence in this case supports the plaintiff in a finding that the consequences that the plaintiff complains about are for the foreseeable future and that there is a medical basis for them.
The consequences
68 I have read the affidavits of the plaintiff sworn on 17 December 2010 and 2 November 2012. I have considered the evidence of the plaintiff contained in those affidavits. I have also heard the oral evidence given by the plaintiff and the cross-examination of the plaintiff by Mr Batten for the defendants.
69 I assess the plaintiff as a reasonably straightforward person who was somewhat preoccupied with his medical condition and the limitation of his physical capabilities in relation to his right arm as he identified them to be. The plaintiff is not properly described as a stoical person. The plaintiff has ceased any active treatment for his right upper arm. The doctors in this case confirmed that that is appropriate. He continues to see his general practitioner on an irregular basis but the plaintiff generally accepts that he has recovered as much as he is going to at this stage. There is no doubt that the initial injury to the plaintiff was a significant injury.
70 The consequences the plaintiff has suffered as a result of the injury to his upper right limb are as follows:
·The plaintiff has, as a result of his injuries, been unable to continue in work which would require heavy physical lifting or heavy manual labour. The consequence for the plaintiff is that he has had the option removed from him of engaging in employment that would require heavy physical work. I accept that he is a young man who enjoyed weightlifting/body building and is a person who was properly described by his counsel as a “physical person”. I accept that the consequence of the plaintiff being unable to engage in any physical lifting or heavy physical work is a significant consequence for him.
·The plaintiff also gave evidence that he is unable to pursue his passion or interest in becoming a police officer or customs officer. His general practitioner has told him that he would be unable to become a police officer with the injury that he now has to his right upper arm. In cross-examination, he was criticised for not making any applications to the police force or to the Australian Customs Service to obtain work with them. The plaintiff stated that he would be unable to do the customs work because it would involve lifting heavy cases during the course of his employment. I accept that the advice given by his medical practitioners and his proper observation that customs work would involve heavy lifting are matters that preclude him from obtaining that type of employment. I find that the plaintiff’s boyhood dream of becoming a police officer or a customs officer have been taken from him as a result of the injury and I find that is a significant consequence for him. The loss of a career path for any person due to injury is to be considered a considerable consequence.
·The plaintiff has given evidence that he can no longer pursue his hobby of being a bodybuilder/weightlifter. The evidence the plaintiff gave was that he had commenced weightlifting at approximately Year 10 level, while he was still a student. He gave evidence that he was intending to continue with his weightlifting/bodybuilding activities into the future. As part of the evidence in this case,[36] photographs were produced of the plaintiff in training prior to his injury in this case. I accept that as a consequence of the injury to his right arm, that the plaintiff cannot partake of the weightlifting necessary to build muscle or compete in a weightlifting competition. The reason for this is that the plaintiff, when lifting weights, complains of pain at what he describes as the site of the fracture in his right arm. I accept that the inability of the plaintiff to partake of his desired sport and activity of weightlifting/bodybuilding is a significant consequence for him.
·The plaintiff gave evidence that due to his injury to the right arm, he was unable to enjoy playing rugby or football. He was cross-examined about his ability to catch or mark the ball and the impact his injury had on that ability. The plaintiff stated that due to the pain he suffered as a result of that activity, he was unable to partake in playing football either on a kick‑to‑kick basis or playing it seriously. I accept that the plaintiff’s inability to play such ball sports due to his injury is a serious consequence for him.
·The plaintiff also gave evidence that he was unable to pursue his mountain bike riding or motorbike riding. He said the reason for the inability to partake in mountain bike riding or motorbike riding was due to the pain in his right arm which is affecting his ability to control the bike. In evidence, he gave an example of riding or attempting to ride his pushbike in the court near where he lives and stated that he was unable to continue and has not been back to it since that time. I accept that the plaintiff cannot ride his mountain bike or motorbike due to the pain produced as a result of that activity and that the inability to do so is a significant consequence for him.
·The plaintiff gave evidence that he was unable to continue enjoying canoeing at Lorne and/or partaking in boating activities generally. The boating activities of the plaintiff in the past had been in what was referred to as a “tinny” with a motor, and jet skiing. The plaintiff said that due to the injury to his right arm and the pain in it, when he tried to do those activities he could no longer do so. When giving evidence about canoeing, he referred to the weight of the canoe oar, but more particularly, the rotating action required of his right arm when trying to row in a canoe. I accept that the plaintiff’s inability to partake of what were previously his water sports, due to the injury to his right arm, is a significant consequence for him.
·The plaintiff gave evidence that his sleep was in part interrupted as a result of the injury to his right arm. In particular, he said that he was woken up if he slept on his right side or, alternatively, could not sleep on his right side. He said he had adapted his sleeping pattern to sleeping on his back in order to avoid this problem. I do not find that the interruption to the plaintiff’s sleep in this case is a significant consequence for him as he has adapted to that problem and he has only complained to one of the medical practitioners about disturbed sleep.[37]
·The plaintiff complains of pain in his right arm. This pain is produced and made worse when his arm is used. The plaintiff has given evidence, and the history to doctors confirms this, that he is someone who does not use medication to reduce his pain. He stated that he may have two to three Panadol if the pain was really bad. His evidence in the course of the hearing was that he did not want to become addicted to medication as he had had experience with that when he was initially in hospital at the time of the injury. He preferred to just wait until the pain dissipated and then go ahead with his normal activities. The fact that the plaintiff has to severely limit his physical activities in order to avoid the production of pain to his right arm, I find is a significant consequence for him.
·The plaintiff has, as a result of his medical treatment for the injury to his right arm, a significant scar measuring some 19 to 20 centimetres on the posterior side of his right arm. None of the medical evidence suggests that this scar can be revised surgically. The scar to the plaintiff’s arm was viewed during the course of the hearing of this application. The plaintiff does not regard the scar as of undue significance to him because he cannot see it. His main complaint about the scar was being asked questions about it by other people when they saw it. However, viewed objectively, the scar to the plaintiff’s right arm is a significant scar and is a consequence that the plaintiff has suffered as a result of the injury to his right arm.
·The plaintiff gave evidence that his right hand and wrist are still weak and lacking in flexibility. The plaintiff demonstrated the loss of use in his right wrist and hand during the course of the hearing. The plaintiff is right hand dominant. When the plaintiff removed his shirt for the purposes of showing the scar in the Court hearing, he used his left hand to remove the shirt and buttons. However, I noted that when the finer dexterity was required to do the buttons up when he put his shirt back on, he did use his right arm but in a reasonably protected way. I accept the plaintiff’s evidence that he is more limited in the use of his right arm now as a result of the weakness and lack of flexibility within his wrist. I find that this is a considerable consequence for the plaintiff.
·The plaintiff also gave evidence that his activities of daily living, in particular gardening, are limited as a result of his injury to his right arm. He gave evidence and was cross-examined about the reasons for being unable to use the lawnmower. He stated that the vibrations from the lawnmower hurt his right arm at or about the site of the fracture. The plaintiff’s current position is that he lives with his parents and sister and there are other people to do the normal household chores of “vacuuming, dusting and sweeping”. His father does the majority of the gardening at the family home. Into the future, however, the plaintiff may be required to perform all of these tasks himself. The fact that he is unable to do those tasks of daily living is, and will continue to be, a significant consequence for him.
[36]at PCB 74, 75 and 76
[37]Dr Stephen Stern, in his report dated 14 April 2010 at DCB 11
71 I conclude that when gathered together and considered as a whole, the consequences outlined above amount to what can be fairly described as being “more than significant” or “marked” and as being “at least very considerable” pain and suffering consequences for the plaintiff.
72 The plaintiff did not make any application for certification for serious injury in respect of loss of earning capacity. The plaintiff has, after some time out of work, been able to obtain employment as a customer service officer at Foxtel call centre. He gave evidence that he did not like that job but that he persisted with it. I do not make any finding as to whether or not the plaintiff’s earning capacity into the future has been affected by the injury to his right arm on 2 April 2009.
73 After a consideration of all the evidence, I am of the view that this a finely balanced case but ultimately, taking into account all the consequences suffered by the plaintiff as a result of his injury to the right arm, I am satisfied that such consequences, when judged by a comparison with other cases in the range of possible impairments, can be fairly described as being “more than significant” or marked” and as being “at least very considerable”. I find that these consequences are for the foreseeable future.
74 Accordingly, pursuant to s134AB(16) of the Act, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages in respect of the upper right limb injury suffered by him in the course of his employment with the first defendant on 2 April 2009.
75 I will hear the parties on the question of costs.
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