Blacker v TAC
[2011] VCC 1501
•18 November 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-03487
| GEORGE BLACKER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 and 28 October 2011 |
| DATE OF JUDGMENT: | 18 November 2011 |
| CASE MAY BE CITED AS: | Blacker v TAC |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1501 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – Section 93 – impairment of left wrist and psychological reaction
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell SC with | Slater & Gordon |
| Mr J Goldberg | ||
| For the Defendant | Mr G Lewis SC with | Solicitors for the Transport |
| Mr S D Martin | Accident commission | |
| HIS HONOUR: |
1 This is an application brought by Originating Motion dated 6 August 2010 by which the plaintiff applies for leave pursuant to sub-s.93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover for damages from injuries suffered by him arising out of a transport accident which occurred on 5 June 2007 (“the said date”).
2 Subsection 93(6) of the Act provides:
“A court must not give leave under subsection (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) serious long-term impairment or loss of a body function”
4 The body function relied upon by the plaintiff in this application is the impairment of the left wrist and the psychological sequelae.
5 The enquiry under subsection (a) of the definition focussing 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 the body function.[1]
[1] 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 a comparison with other cases in a range of possible impairments be fairly described as at least “very considerable” and more than “significant” or “marked”?[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129 at [140] to [141].
8 The plaintiff relied on two affidavits dated 9 June 2009 and 12 September 2011. The plaintiff gave evidence and was cross-examined. The plaintiff relied upon an affidavit of his wife, Colleen Blacker, dated 14 September 2011. In addition, both parties relied on medical reports and other materials which were tendered in evidence. I have read all of the tendered material. Dr Andrew Schon, general practitioner for the plaintiff, was called to give evidence and was cross-examined.
9 The issue in this application is whether the plaintiff is in “the range” of cases considered as a whole to be a serious injury under the Act. Mr Lewis, at the commencement of the proceedings, indicated that this was a range case.[3]
[3] T 11, L10 and 11
Background
10 The plaintiff was born on 5 July 1947. He is now sixty-four years old. He was born in Sri Lanka. He completed his education at Year 10 level and then did an apprenticeship for five years as a fitter and turner.[4]
[4] PCB 39
11 The plaintiff migrated to Australia and commenced work as a fitter and turner at Fairfield Engineering. He remained in that position for some ten years. He then moved to Ford Motor Company (“Ford”) at the Broadmeadows plant and worked as a fitter and turner for twenty years until he was made redundant in 1998.[5] Whilst employed at Ford, the plaintiff had an injury to his left hand which was repaired by plastic surgery. This injury was in May 1993.[6]
[5] PCB 40
[6] PCB 40
12 The plaintiff, in the time after stopping work at Ford in 1998, enjoyed the hobbies and occupations of golf, gardening and fishing. The fishing was predominantly surf fishing.
13 The plaintiff commenced employment with Australian Composite Technology Pty Ltd (“the employer”) on 26 February 2007.[7] The plaintiff’s work at the defendant’s premises was that of a factory hand/labourer. His employment was three to four days a week for ten hour shifts. The plaintiff was required to “demetalise” plastic before it was processed for recycling.[8]
[7] PCB 40
[8] PCB 40
The Injury at the Employer’s Work Premises
14 The plaintiff was in attendance at the employer’s work premises on 5 June 2007. A truck, which was delivering a load of waste plastic piping for processing at the factory, commenced to unload onto the factory floor. The load of plastic piping rolled across the floor quickly and collided with a stack of wooden crates. The wooden crates in turn struck the plaintiff, knocking him off balance and making him fall awkwardly onto his outstretched left arm and hand. As a result of the fall to the ground, the plaintiff experienced severe pain in his left forearm and wrist.[9]
[9] PCB 41
The Plaintiff’s Medical Treatment
15 The plaintiff was transported to the Northern Hospital immediately after the accident which caused injury to his left wrist. He was x-rayed at the Northern Hospital. The x-ray on 5 June 2007 was reported as follows:
“Full views of the left wrist have been performed. Comminuted fracture of the distal radius is demonstrated with evidence of lucencies extending to the articular margins. There is evidence of minor dorsal angulation. Bony alignment is otherwise anatomical. No further fracture or dislocation demonstrated.”1011
16 The plaintiff decided that he wanted to be treated in a private hospital. On 6 June 2007 he was an in-patient at Latrobe Private Hospital when he was reviewed by Mr Kiellerup, trauma and orthopaedic surgeon.[12]
[12] PCB 60
17 On 6 June 2007, Mr Kiellerup performed an operation of closed reduction and internal fixation of the plaintiff’s fractured left wrist. On 28 June 2007, Mr Kiellerup removed the pins from the distal radius of the plaintiff’s left wrist. The plaster was removed on 17 July 2007.[13]
[13] PCB 60
18 Mr Kiellerup last reviewed the plaintiff on 2 October 2007 and noted that the plaintiff had a mild reduction in the range of motion in his left wrist. Mr Kiellerup was of the view that the prognosis was fair.[14]
[14] PCB 61
19 The plaintiff returned to work for three weeks with the restriction of modified duties in September of 2007. On 27 September 2007, the plaintiff’s employment was terminated. The employer’s reason for terminating the plaintiff at that time was that it was in some financial difficulty. The plaintiff did not accept that as a reason for his termination and thought that he had been discriminated against. The reason for the termination of the Plaintiff’s employment is not highly relevant to this application.
20 The plaintiff has been treated by a general practitioner since the time of Mr Kiellerup’s treatment. Initially he attended Dr Salimi. The first appointment with Dr Salimi was 25 October 2007.[15]
[15] PCB 58
21 On 13 June 2008, Dr Schon took over the care of the plaintiff as a general practitioner. Dr Schon ordered x-rays of the left wrist on that day.[16] On 18 June 2008, the plaintiff had an x-ray of his left wrist. The finding on that x-ray was as follows:
“There is some irregularity and deformity to the distal radial metaphysic consistent with a history of previous bony injury. No residual fracture line is seen. Mild degenerative changes are noted in the radiocarpal articulation which is in slight dorsal angulation of 5 degrees. There is small ossicle adjacent to the ulnar styloid.[17]
[16] PCB 54
[17] PCB 129
22 As a result of these x-ray findings, Dr Schon referred the plaintiff to hand therapy. The plaintiff has received hand therapy and continues to do exercises as demonstrated by the hand therapist.[18]
[18] PCB 58
23 In July 2008, Dr Schon commenced the plaintiff on Celebrex for anti- inflammatory assistance in his left wrist.[19] The plaintiff continues to take Celebrex. Dr Schon in his evidence was concerned about the plaintiff continuing to take Celebrex and noted that he had ceased Celebrex on 14 February 2011.[20] Dr Schon then went on to state that it was a “pinch point” between the plaintiff’s high blood pressure and treatment of the arthritis in his left wrist with Celebrex.[21]
[19] PCB 58
[20] T 62, L17 and 18
[21] T 62, L26 – T 63, L1-16
24 In September 2008, Dr Schon diagnosed the plaintiff with depression secondary to the pain and injury to his left wrist. Dr Schon prescribed Efexor to alleviate the depressive symptoms suffered by the plaintiff. Dr Schon, in his evidence, stated that he had increased the therapeutic dose of Efexor for the plaintiff to 150 milligrams per day.[22] In summary, the treatment that the plaintiff currently receives from his general practitioner, Dr Schon, is for the following conditions in his left wrist:
[22] T 43, L29
• decrease in left hand grip strength; • increase in stiffness in the left wrist; • decrease in range of movement within the left wrist; • increase in the pain in the left wrist; • increase in the rate of acceleration of osteoarthritis in the left wrist; •
depression, secondary to the pain and injury to the left wrist necessitating the prescription of Efexor; and
• prescription of Panadol Osteo for the management of pain.
The Expert Medical Opinion
(a) Dr Schon: 25 Dr Andrew Schon provided four medical reports dated 4 February 2009, 21 December 2009, 18 April 2011 and 7 September 2011. Dr Schon gave evidence and was cross-examined.
26 In respect of the plaintiff’s work capacity, Dr Schon has stated:
“… I have continuous[ly] certified him unable to lift, push or pull more than
6 kg intermittently and probably if he had to, 2 kg repetitively.”[23]
[23] PCB 52
27 He states that the plaintiff has difficulty with the twisting motion in his left wrist to do with the gripping of a tool or a tap.
28 In his last report, Dr Schon stated that when he last examined the plaintiff in July of 2011, he had a grip strength of only 15 kilograms. He had synovial thickening over the radiocarpal joint of his left wrist and he could only achieve 20 degrees of dorsiflexion of 15 degrees of radial lateral flexion of the left wrist. He had been advised to wear a wrist brace to control the pain. The diagnosis is of:
“… accelerated osteoarthritis of the radiocarpal articulation of the left wrist. The osteoarthritis is irreversible, as are the restrictions which are only likely to worsen with time.”[24]
In Dr Schon’s opinion, the plaintiff:
“ … may require surgery of the radiocarpal joint by an arthrodesis but this
has not yet been suggested or requested by an orthopaedic surgeon.”[25]
[24] PCB 52
[25] PCB 53
29 Dr Schon stated in his last report that the plaintiff had suffered pain in his left wrist and as a result of forced invalidism due to the injury he has become depressed. The opinion was that the plaintiff would be taking antidepressant medication for the rest of his life.[26]
[26] PCB 53
30 In evidence, Dr Schon strengthened his position in respect of the prospect of surgery. He stated:
“A: His condition is permanent and likely to deteriorate and he will need ongoing medical care, in the sense that the need for medication arises and at some stage there may be a need to refer to specialists for surgery.”
Q: The surgery spoken of is an arthrodesis? A: Yes.
Q: I think most of us know what that is, but, just in brief terms, what
type of procedure is that?
A: It’s the surgical obliteration of the joint where nonsurgical treatment has failed and pain and function has become either – the pain has become intolerable or the function has become a problem with day- to-day life. Q: In his case, considering your monitoring of him over the course of time, are you able to give any time span for the future where that may need to be a serious consideration? A: It’s hard to predict the course in the future, but I would say with confidence that it’s probably like something that could occur in the next five years, five to 10 years.”[27]
[27] T 43, L8 – 26
31 It is clear from this evidence that Dr Schon is of the view that the speed and level of deterioration of the arthritis in the plaintiff’s left wrist indicates to him that surgery will be a probable result in the nearer future.
(b) Mr Jim Kiellerup 32 Mr A J Kiellerup is a trauma and orthopaedic surgeon. He provided one report in respect of this application dated 1 December 2008. Mr Kiellerup was the surgeon who performed the reduction and internal fixation of the plaintiff’s fractured left wrist on 6 June 2007. Mr Kiellerup diagnosed the injury as follows:
“He had sustained a comminuted intra-articular fracture of the distal left radius. X-rays taken at the Northern Hospital showed approximately 20 degrees of dorsal angulation and approximately three to four main fracture fragments.”[28]
[28] PCB 60
33 Mr Kiellerup noted in his last review that the left wrist showed a mild reduction in its range of motion. This last review was on 2 October 2007.
34 Mr Kiellerup noted that the prognosis for the plaintiff was to be regarded as fair. Mr Kiellerup noted that:
“… there is a risk of further deterioration within the left wrist joint as a result of this injury. There is a possibility of him requiring further investigation and surgery as a result of this in the future.”[29]
[29] PCB 61
35 Mr Kiellerup, based on his opinion of the last review in October 2007, was foreshadowing the conclusion that Dr Schon now has given evidence about in this application with respect to the possibility or probability of surgery to the left wrist in the future.
(c) Mr Kenneth Brearley
36 Mr Kenneth Brearley, orthopaedic surgeon, reported on the plaintiff on 20 April 2011. He noted that the plaintiff was taking Celebrex daily and on occasions used Panamax tablets to deal with the pain symptoms a few times a week. Mr Brearley gave his opinion as follows:
“Comminuted fracture of the distal radius involving the left wrist joint. Union has occurred but x-rays do reveal some degenerative changes in the radio-carpal articulation as would be expected.”
…
“The prognosis is not good. While the fractures have united well in reasonable position at this stage, there is already some indication of degenerative change.”
…
“There is no likelihood of intervention or operative treatment in the foreseeable future. However, in the remote future, if his pain increases as a result of the development of osteoarthritis of the wrist joint, then consideration may need to be given to arthrodesis of the left wrist to abolish movement and thereby pain. I think it is unlikely that this will be required in his case.”[30]
[30] PCB 65 and 66
37 Dr Schon did not agree with Mr Brearley’s opinion in this regard. In his evidence, Dr Schon said:
“A: I mean, he has his own opinions and these things are determined quite often by a knowledge of the person’s lifestyle and its impact on their daily activities. And in the sense that he’s a specialist I defer to his technical and examination skills, but I think I’m in a better position to judge what the impact on the patient’s life is, because I’ve seen him on several occasions and I know anecdotes of what he tells me how it affects his day to day living.[31]
[31] T 52, L3 – 11
38 Mr Brearley was of the opinion in relation to the plaintiff’s return to work capacity:
“He could do some suitably selected lighter work, such as a quality control position whereby he could handle small objects only. He could work as a parts salesman, again handling smaller components. He has no aptitude or experience in sedentary office type work.”[32]
[32] PCB 67
39 Mr Brearley comments on the impact on the plaintiff’s daily activities as follows:
“Because of the wrist injury, he is precluded from domestic activities where he is unable to help his wife to any significant extent and he is no longer able to enjoy golf or fishing. This incapacity will continue for the foreseeable future.”[33]
[33] PCB 67
(d) Dr Lester Walton, Consultant Psychiatrist 40 Dr Lester Walton, consultant psychiatrist, provided two reports in respect of the plaintiff, dated 20 July 2009 and 12 April 2011. Dr Walton diagnoses the plaintiff with an adjustment disorder. He states that the dose of antidepressant medication and counselling received from the general practitioner on a monthly basis is an appropriate medical intervention for the psychiatric difficulties faced by the plaintiff.
41 Dr Walton notes that:
“ … the pain and weakness affecting his hand would be most relevant in terms of compromising those work skills but much of the same considerations as described immediately above have relevance psychiatrically.”[34]
[34] PCB 72
42 I understand this statement to mean that the pain and weakness in the left wrist impact upon the plaintiff’s psychiatric wellbeing which results in the plaintiff having difficulty sustaining concentration and suffering from a depressed mood.
(e) Dr Robyn Horsley
43 Dr Robyn Horsley, occupational physician, prepared three reports in respect of the plaintiff in this matter. The reports are dated 8 October 2009, 30 June 2011 and 18 October 2011. In her latest report, Dr Horsley states:
“He has developed secondary post traumatic osteo arthritis which has resulted in a reduction in power and persistent discomfort with activity on the left side.”[35]
[35] PCB 77b
44 Dr Horsley went on to opine:
“He is unsuitable to work in an environment where there is repetitive gripping involving the left hand, prolonged static postures involving left hand, prolonged gripping involving left hand and repetitive activities involving the left hand. He would primarily have to work right handed.”[36]
[36] PCB 77b
45 In her view, the plaintiff was unable to perform any useful work and he had now “come to the end of his working life.”[37]
[37] PCB 77b
46 In her report dated 30 June 2011, Dr Horsley expressed the view that:
“Into the future, depending upon his level of pain, he may require further
surgery in the form of arthrodesis. The main indication would be pain.”[38][38] PCB 81
47 Dr Horsley diagnosed the plaintiff as follows:
“(a) The plaintiff sustained a closed comminuted fracture of the left
distal radius. He was treated with a percutaneous kirschner wire –
internal fixation. He has an ongoing disability.
(b) He has developed secondary post traumatic arthritis which has
resulted in a reduction in power and persistent discomfort with activity on
the left side.(c)
He suffers from a chronic adjustment disorder with mixed anxiety and depressed mood diagnosed by my psychiatrist colleagues.”[39]
[39] PCB 81
(f) Dr David Fish 48 Dr David Fish, occupational and environmental physician, reported on the plaintiff dated 26 March 2009. This report is somewhat outdated for the determination in this application. Dr Fish diagnosed the plaintiff as follows:
“Mr Blacker suffered a fall at work where he fractured his distal radius. This has healed well but he has now developed arthritis in the wrist with an increase in arthritis of the thumb base.”[40]
[40] PCB 92
(g) Mr Michael Fogarty, Orthopaedic Surgeon 49 Mr Michael Fogarty, orthopaedic surgeon, examined the plaintiff on behalf of the defendant. He prepared a report dated 18 May 2011. Mr Fogarty found, on examination, that there was a definite and consistent loss of grip strength in the left hand.[41]
[41] PCB 98
50 In Mr Fogarty’s opinion, he stated as follows:
“1. The prognosis for the claimant’s injuries is fair. I believe that he will continue to have symptoms from his left wrist together with relative weakness in this wrist and of grip. He does have very early signs of traumatic arthritis in the left wrist and these may slowly progress, possibly leading to the necessity for further treatment.
2. At present no operative nor other treatment is required apart from occasional painkillers. I note that he is also taking anti- inflammatories which he does find helpful. If the arthritic change progressed sufficiently over the next ten years it is just possible as a further procedure such as arthrodesis of the wrist may be necessary. However this remains a possibility and not a probability.”[42]
[42] PCB 99
51 Mr Fogarty goes on to say that the injury to the plaintiff’s left wrist interferes with his leisure activities and, to some extent, his domestic activities.
(h) Mr Owen Deacon, Orthopaedic Surgeon 52 Mr Owen Deacon, orthopaedic surgeon, examined the plaintiff on behalf of the defendant. He prepared three reports dated 3 September 2008, 7 August 2009 and 17 August 2009. Mr Owen Deacon was of the opinion that the plaintiff has had the capacity to engage in suitable employment options that had been identified in the attached report.[43] The report referred to by Mr Owen Deacon was not attached to the documents in the Court Books.
[43] PCB 100b
53 On examination, Mr Owen Deacon found that there was a restricted active motion of the left wrist compared with the right. He also found that the grip was 50 per cent of the left compared with the right. There is a mal-positioning of the distal fragment of the radius which now faces more radially and dorsally than it should by 15-odd degrees.[44]
[44] PCB 100g and 100h
54 Mr Owen Deacon went on to diagnose the plaintiff’s condition as follows:
“the diagnosis is mal-union of the left distal radial fracture involving the wrist joint with secondary degenerative changes in the radiocarpal joint and also in the trapezio-metacarpal joint and the prognosis is one of slow and steady deterioration as far as the arthritis is concerned and diminishing rather than improving left wrist function over a period of time.”[45]
[45] PCB 100h
55 Mr Owen Deacon went to conclude as follows:
“In conclusion this worker sustained a severe comminuted fracture involving the non dominant left wrist joint distal radial articular surface which has mal-united with the distal articular surface of the radius now facing more dorsally and radially than before but sound bony union has occurred.”[46]
(i) Dr Philip Mutton, Consultant Occupational Physician
[46] PCB 100i
56 Dr Philip Mutton examined the plaintiff on behalf of the defendant. He reported on two occasions; 10 April 2008 and 14 July 2009. Dr Mutton noted:
“The radiologist reported a comminuted fracture of the distal radius with
evidence of fracture extending into the articular margins.”[47]
[47] DCB 10
57 Mr Mutton, on the issue of the plaintiff’s ability to work, stated as follows:
“… I would maintain a weight limitation of 7.5 kg in the left upper limb and avoidance of repetitive movement with the left wrist although generally using the hand in a normal manner is likely to be therapeutic. At the present time the restrictions are necessary to reduce the onset of pain.”[48]
[48] DCB 11
58 In the later report, Dr Mutton noted that the plaintiff had minimal symptoms at rest. The symptoms are more predominant with activity. He sleeps satisfactorily but may wake up to twice per week. He noted a history that the plaintiff had attempted to return to work but was not able to continue due to pain and discomfort. He noted that the plaintiff had not been able to return to his fishing or golfing activities. Dr Mutton gave his final opinion as follows:
“He has had a good outcome with healing of the fracture with very minor ongoing disability. He may well have some osteoarthritis degenerative changes developing prematurely in the left wrist. It must be appreciated that initial x-rays on 5.6.07 did identify a comminuted fracture of the distal radius with extension into the articular margins.
…
He primarily suffers from pain which is difficult to verify. There may well be some factors in relation to motivation. It would not be unreasonable however, to maintain a weight limitation of 10 kg in the affected left wrist. He is, however, right upper limb dominant.”[49]
[49] DCB 17
59 In summary, Dr Mutton was of the view that the plaintiff had the capacity to work in full time employment. I note that the medical opinions of David Fish, Owen Deacon and Philip Mutton are all based on reporting in 2009. The Court is required to determine the position of the plaintiff as at the time of the hearing. The opinions expressed by the medical experts that are now some two years old are of less weight in determining the issue of serious injury for the plaintiff.
60 The Court has heard evidence from Dr Schon about the condition and treatment for the plaintiff’s left wrist and depression. I accept Dr Schon’s evidence as an accurate and up to date assessment of the plaintiff’s impairment. Dr Schon is supported, in part, by the opinions of Mr Kiellerup, Mr Brearley, Dr Lester Walton, Dr Horsley, Mr Fogarty and Mr Owen Deacon. The preponderance of medical opinion is that the plaintiff has suffered a nasty injury to his left wrist with serious consequences for him. Dr Fish and Dr Mutton are not of the same opinion but their reports are two years old and I do not accept their opinions for the purposes of determining the condition of the Plaintiff at the time of this hearing.
Consequences of the left wrist injury for the Plaintiff
61 I find that the plaintiff has suffered from the following consequences as a result of the left wrist injury to him which occurred as a result of a transport accident on 5 June 2007.
(a) Pain
62 The plaintiff states that he suffers pain in his left wrist all the time. In his first affidavit he expressed it as follows:
“… There is always a level of aching pain and discomfort. I am never
free of pain. The pain I experience is made worse by activity.”[50][50] PCB 42, paragraph 20
63 I accept the evidence of the plaintiff in regard to his experience of pain in his left wrist. The medical evidence supports the pathological basis for the pain, in the sense that he has increasing osteoarthritis in his left wrist. The plaintiff gave evidence that he was suffering pain and continued to suffer pain as a result of the injury to his left wrist. The medical practitioners that have examined the plaintiff accept that he would experience pain in his left wrist and that the pain would increase with the level of activity. The plaintiff has support from his general practitioner about the level of pain when Dr Schon expects that the plaintiff will be subjected to an arthrodesis of his left wrist in order to alleviate his pain symptoms in the future. Dr Schon attributes the pain to the trauma of the accident which caused the fracture to the plaintiff’s wrist.[51]
(b) Mobility
[51] T 45
64 The plaintiff suffers from a decrease in the mobility or flexibility of his left wrist. This is a direct consequence of the injury of a fractured left wrist. The general practitioner Dr Schon clearly states that the grip strength of the plaintiff in his left hand has decreased and continues to deteriorate. The general practitioner states that the range of movement is now remaining static.[52] Dr Schon in his evidence stated that there was a definite difference in the right and left wrists in terms of function.[53]
[52] T 56, L25-29
[53] T 46, L16-18
65 The plaintiff deposed in his first affidavit as follows:
“The movements of my left wrist are restricted. My left lower forearm and left wrist and hand is now much weaker. I have lost power, strength, and the ability to make and sustain a strong, sustained grip with my left hand.”[54]
[54] PCB 43, paragraph 22
66 I accept that the plaintiff has suffered a reduction in the level of movement in his left wrist and a reduction in his grip strength as a result of the fracture to his left wrist. This disability is ongoing and will continue into the foreseeable future.
(c) Medication
67 The plaintiff has given evidence that he is currently taking Panadol Osteo for pain relief.[55] The plaintiff has also been prescribed Celebrex as an anti- inflammatory medication. He continues to take Celebrex, on the basis of one a night, in order to manage his arthritis in his left wrist.[56] He has been taking Celebrex since July 2008.[57] Dr Schon expressed concern during the course of his evidence about the interaction between the rise in blood pressure for the plaintiff with the use of Celebrex. The “pinch point” is a trade-off between higher blood pressure for the plaintiff versus lesser symptoms for the arthritis when treated by the use of Celebrex.[58]
[55] T 29, L15-16
[56] T 30, L1-6
[57] PCB 58
[58] T 63
68 The plaintiff has also been prescribed Efexor. In his evidence, Dr Schon stated that he increased the dosage of Efexor to 150 milligrams per day.[59] Dr Schon prescribed this medication to deal with the psychiatric impact on the plaintiff arising from the pain to the left wrist.
[59] T 43, L27-29
69 I accept that the plaintiff needs to take Panadol Osteo or Panamax, and Celebrex and Efexor, to ameliorate the symptoms that he suffers directly as a result of the left wrist injury. The general use of pain-relief medication combined with Efexor is ongoing medication. His general practitioner expressed some concern about the ongoing use of Celebrex, but clearly indicated that some anti-inflammatory agents would be necessary to limit the amount of pain suffered by the plaintiff. I find that the necessity for the plaintiff to take medication in this manner and combination is a very considerable consequence for him.
(d) Sporting activities 70 The plaintiff gave evidence that he was no longer able to play golf as a result of his left wrist injury. In his first affidavit he stated that he enjoyed playing golf regularly with members of his family.[60] The plaintiff was not really challenged about the loss of his ability to play golf as a result of the left hand injury. Rather, the challenge to the plaintiff in respect to golf was that the plaintiff had not played golf whilst he was engaged in his employment with ACI. Nevertheless, it does not change the fact that the plaintiff now, because of his left wrist injury, cannot play golf, and he has lost the opportunity to play it with members of his family in a social setting. His evidence was that he played it approximately once per month.
[60] PCB 46, paragraph 34
71 The plaintiff also stated that he has lost his ability to enjoy surf fishing. In his first affidavit he stated that he enjoyed surf fishing at places like Mallacoota and Warrnambool.[61] In his evidence he stated that he was unable to go on fishing trips with his son to the surf-fishing spots of the past. This was due entirely to the fact that his left wrist injury stops him from being able to properly fish. He conceded that in times since the left wrist injury he had engaged in hand-line fishing from a trawler in Queensland.[62] However, he stated that he was unable to do any fishing on the riverbank at Echuca. The reason for that was he was unable to properly hold the rod when it became snagged, and that he ended up having a very painful left wrist.[63]
[61] PCB 46, paragraph 34
[62] T 33, L30-31
[63] T 38, L10-18
72 I find that the plaintiff has suffered the consequence of being unable to enjoy and continue fishing, in particular surf fishing, as he did before his injury. The loss of social contact in a setting of fishing with his son is a very considerable consequence for him.
(e) Home duties and maintenance 73 The plaintiff gave evidence that he was able to assist his wife with the home duties of washing the clothes, hanging the clothes out, vacuuming the house and doing the dishes.[64] This level of domestic activity is reduced in comparison to times prior to the left wrist injury. His evidence in regard to the pre-injury situation was that in effect he was the main home and housekeeper. He attributes the change to his abilities to engage in domestic activities to the pain and lack of movement and strength in his left wrist. He was not saying that he could not do some of the activity. What he was saying was that he did less of the activity, but with a lot more pain in his left wrist.
[64] T 31
74 He also stated that he was unable to use hand tools and electric tools contained in his shed as a result of his left wrist injury. For example, he stated that he could no longer maintain his car.[65]
[65] T 38, L25-31
75 I accept the plaintiff’s evidence in this regard, and find that the consequence of him being unable to perform the domestic household duties and maintenance activities around the house has been a considerable consequence for him.
(f) Sleep
76 The plaintiff had, on a number of occasions, complained to various medical practitioners that his sleep was interrupted as a result of the pain or injury to his left wrist. On other occasions he had told medical practitioners that he could sleep normally. In his evidence, the plaintiff, fairly in my assessment, conceded that his sleep is only occasionally disturbed as a result of the injury to his left wrist.[66] Whilst a small amount of disruption to a person’s sleep is a consequence as a result of the injury, on its own I do not find that it is a significant or very considerable consequence for the plaintiff in this case.
(g) Depression
[66] T 34, L5-6
77 The plaintiff gave evidence that he is depressed as a result of the pain and changes that he has suffered as a result of his physical injury. This depression fits in the category of psychiatric injury contemplated in the decision of Richards v Wylie.[67] He conceded that part of his depression relates to the fact that he cannot find work.[68] He also states in his first affidavit that he is very worried about his future because he is unable to obtain employment due to his injuries. He says that this leads to depression and anxiety and a loss of self-esteem.[69]
[67] supra
[68] T 34, L11-13
[69] T 45, paragraph 31
78 He conceded in cross-examination that he also suffered lowered mood and depression as a result of the loss of his grandson and the fact that his son was insulin dependent. The plaintiff has the support of Dr Lester Walton in respect of his depressive symptoms. I have previously referred to these opinions in these reasons. The plaintiff also gets support from his general practitioner Dr Schon, who prescribes the Efexor to ameliorate these symptoms. Dr Schon is in no doubt that the depressive state of the plaintiff is a result of the pain and inability of the plaintiff to use his left wrist and the consequences from it.
79 I accept that the depressive symptomatology of the plaintiff is a very considerable consequence for the plaintiff, and I accept that it is a result of the pain that he suffers from his left wrist, together with his frustration and anxiety about his position in not being able to use his left wrist in the usual way so that he may obtain employment and/or do things around the house.
(h) Work
80 Prior to the plaintiff obtaining his employment at ACI he had been out of work for some seven years. On a fair reading of the evidence it is clear that the initial period of the seven years was a period of retirement for the plaintiff. It took him considerable time to obtain the job at ACI, and he worked in a part- time manner at that place.
81 He attempted a return to work after his wrist had been operated on, and remained in employment for some three weeks before being retrenched. This attempt to return to work indicates his readiness to continue with his work life. I accept that the plaintiff is someone who was and is anxious to obtain employment and has tried to do so. In his evidence he conceded that he could work as a meter reader[70] or a lollipop pedestrian-crossing worker.[71] He has not applied for, nor been offered, those forms of employment from the employment agencies engaged by the defendant.
[70] T 27-28
[71] T 28, L 20
82 Dr Schon has certified the plaintiff fit for modified duties with the restriction that he is not to lift more than 6 kilograms in his left hand. Mr Mutton has certified the plaintiff fit for duties with the restriction of 10 kilograms in the left hand.
83 In a theoretical sense, the plaintiff has a capacity to work with the restrictions set out by his general practitioner Dr Schon. The reality in this case, I find, is that due to his age and his injury, together with the restrictions applied to his employment, the plaintiff would not obtain employment in the open workplace.
84 In the event that the plaintiff is and was unable to obtain employment after the injury to his left wrist, I find that this is a very considerable consequence for him. His general practitioner Dr Schon is of the opinion that the plaintiff’s work life is at an end. Dr Schon gave evidence that he was very familiar with industrial working situations, and, whilst his restriction of 6 kilograms weight for the left wrist was applied, he stated that that would impact on many, if not all, factory-type work.
Conclusion
85 In conclusion, I find that the pain and suffering consequences for the plaintiff, when considered as a whole and collectively, are very considerable and more than significant or marked. The condition and symptoms arising from the left wrist injury to the plaintiff have been continuous and increasing in severity for the period of time from the accident until now. The preponderance of the medical opinion supports the plaintiff in this regard, and that the conditions are long-term.
86 I am satisfied that the impairments resulting from the plaintiff’s left wrist injury and the consequential pain and depression are serious and long-term.
87 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to the transport accident on 5 June 2007.
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PCB 62
PCB 62
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