Bluszcz v TAC
[2016] VCC 727
•3 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-02773
| ZDIGNIEW BLUSZCZ | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 May 2016 | |
DATE OF JUDGMENT: | 3 June 2016 | |
CASE MAY BE CITED AS: | Bluszcz v TAC | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 727 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – serious injury - injury to bilateral wrists – taxi driver – pre-injury employment - ganglion cyst formation – degenerative changes – plaintiff called to give evidence – impairment
Legislation Cited: Transport Accident Act 1986
Cases Cited:Jurokouski v Windsor Caravans [2015] VCC 1800; Richards v Wylie (2000) 1 VR 79; Barlow v Hollis [2000] VSCA 26; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timber (No 2) [2008] VSCA 260
Judgment:Application refused
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Mr G Worth | Nowicki Carbone |
| For the Defendant | Mr S Smith | Solicitor to the Transport Accident Commission |
HER HONOUR:
Preliminary
1 The plaintiff worked as a taxi driver and on 19 March 2012, whilst getting a bottle of water from his taxi’s boot, another car reversed into the front of his taxi. The collision caused the plaintiff to fall to the ground, and he claims to have suffered bilateral wrist injuries in this transport accident (“the accident”).
2 This is an application for leave to bring proceedings pursuant to s93(4)(a) and s93(4)(d) of the Transport Accident Act 1986 (“the Act”). The application is brought pursuant to sub-section (a) of the definition of “serious injury” contained in s93(17) of the Act.
3 Mr John Richards QC appeared with Mr Glenn Worth for the plaintiff and Mr Scott Smith appeared for the defendant.
4 The plaintiff claims he has suffered injuries to his left and right wrist. The body function said to be lost or impaired is the functioning of the bilateral wrists. Mr Richards submitted that it was permissible for me to aggregate the upper limbs, pursuant to the principles most recently set out in Jurokouski v Windsor Caravans.[1] I note that Mr Smith did not make any contrary submissions.
[1][2015] VCC 1800
5 In circumstances where it is alleged that the injury to the hands arose in the same accident, I accept it is appropriate to combine the functioning of both hands and to assess them together as one body function.
6 Although this serious injury application was originally lodged in respect of a psychiatric injury under s94 (17)(c), this was abandoned at the hearing.[2] The psychiatric evidence was relied upon in respect of the subsection (a) application, to show how the bilateral wrist injury impacted upon the plaintiff’s pain and suffering, and loss of enjoyment of life, as permitted by the Court of Appeal in Richards v Wylie.[3]
[2]Transcript (“T”) 18, Line(s) (“L”) 13-17
[3](2000) 1 VR 79
7Only the plaintiff was called to give evidence and he was cross-examined. In addition, an affidavit from his wife was tendered, together with numerous medical reports and other documents. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this Judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions referred to in this Judgment.[4]
[4]See Barlow v Hollis [2000] VSCA 26 per Chernov J at [14]-[16], and the “pathway of reasoning” per Ashley JA in Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 at [38]
8 The plaintiff has the burden of proving the impairment of his wrists is both serious and long-term. The test for serious injury is subjective, in that it is the effect on the individual plaintiff that must be considered. However that determination must be made by me objectively, in considering the seriousness of the impairment. [5]
[5]Philippiadis v Transport Accident Commission [2016] VSCA 1
9 I accept that the plaintiff has suffered some pain and discomfort in both his wrists since the accident. However, I am not satisfied that his pain is as frequent, nor that it restricts him to the degree he claims. In considering the consequences he claims to suffer, for the reasons I will outline below, I am not satisfied that they are serious.
Relevant background
10 The plaintiff is 60 years of age and lives with his wife. He has no children.
11 The plaintiff was born in Poland and migrated to Australia in 1983. Whilst in Australia, he has worked in numerous jobs, predominantly as a self-employed truck driver, and also as a taxi driver.
12 Before suffering the injuries the subject of this claim, the plaintiff said he enjoyed numerous recreational activities including tennis, badminton, volleyball, bike riding, bush walking and four-wheel driving. He said he was also learning to play golf. He played the guitar and piano.[6]
[6]Plaintiff’s Court Book (“PCB”) 2,13,14 and 15
13 Further, he said he undertook domestic duties at home, and had been responsible for gardening and maintenance within his home. He said that he had been active in the final fit-out of his house, including the laying of floating floors, the construction of a picket fence and the laying of outside tiles.[7]
[7]Exhibit A – photographs of the plaintiff doing these jobs
14 The plaintiff said that he was in good health prior to suffering the injuries the subject of this claim.
The injury and its consequences
15 The plaintiff claimed that on 19 March 2012, during the course of his employment as a taxi driver, he parked his vehicle on Huntingdale Road, South Oakleigh. He said that he went to get a bottle of water from his car boot. Whilst standing there, another vehicle reversed into the front of his taxi, and the impact caused him to fall to the ground. The plaintiff claimed that he felt immediate pain in his wrists following the accident.
16 The plaintiff attended his local medical centre, the Wells Road Medical Centre. X-rays were taken of both wrists. No fractures were detected and mild degenerative changes were noted within the first carpometacarpal joints.[8]
[8]PCB 19
17 The plaintiff was subsequently referred for an MRI scan of both wrists. An MRI of his right wrist was taken on 21 May 2012. It showed mild joint effusion within the intercarpal and radiocarpal joints, but no major soft tissue oedema was detected.[9]
[9]PCB 20
18 On 22 May 2012, an MRI scan was taken of the left wrist. It showed mild joint effusion at the radiocarpal, intercarpal and carpo-phalangeal joints. It was thought there was a likely injury to the scapholunate ligaments and the triangular fibrocartilage complex (“TFCC”).
19 The plaintiff returned to his work as a taxi driver on 26 March 2012. He said that he struggled to complete his shift because gripping and rotating the steering wheel aggravated the pain in his left and right wrists.[10] He ceased working soon thereafter and did not work again until November 2014.
[10]PCB 3, 21
20 The plaintiff was treated by general practitioners Dr Jilu Miao and Dr Sui Lin Li, at the Wells Road Medical Centre.
21 In July 2012, the plaintiff was referred to hand surgeon, Mr Anthony Berger. When the plaintiff attended upon Mr Berger on 18 July 2012, Mr Berger noted the history of bilateral wrist pain since the accident. He found the plaintiff to be tender over the TFCC and noted that he had pain on ulnocarpal compression. Mr Berger recommended that he modify his activities, but that if his pain deteriorated, he undergo a wrist arthroscopy.
22 The plaintiff decided not to undergo the arthroscopy and did not return to Mr Berger.
23 A further MRI scan of the left wrist was performed on 13 August 2012 and it demonstrated:
·subacute changes post scapholunate ligamentous injury
·likely longstanding degenerative tears of the TFCC
·ganglion cyst formation deep to the extensor carpi ulnaris tendon at the level of the distal scaphoid
·likely longstanding degenerative changes at the trapezoid second metacarpal joint.[11]
[11]PCB 24-25
24 The plaintiff lodged a WorkCover claim in respect of the injuries suffered in the accident. This claim was accepted, and he received weekly payments of compensation for it through until 13 September 2014.[12]
[12]T44, L16-29
25 Each month the plaintiff would attend his medical clinic to obtain WorkCover certificates of capacity.[13]
[13]Exhibit 3 – Wells Road Medical Centre records
26 As part of his WorkCover claim, he was reviewed by IPAR in approximately October 2012 and undertook some job-seeking efforts with them until May 2013.[14] They also arranged for him to do a short course in web design in November 2013.[15]
[14]T46, L23-31, T47, L1-16
[15]T48, L2-7
27 The plaintiff said that whilst he was in receipt of weekly payments, he applied for over 500 jobs.[16] He said most of these applications were made online. They included positions such as customer service, web design and photography.[17]
[16]T50, L5-31, T51, L1-4
[17]T50, L27-31, T51, L1.
28 The plaintiff said that, as he had been unsuccessful in his job applications and as his weekly payments were terminated, he felt he had no choice but to return to taxi driving work. His wife was only working casually at that time,[18] and he said they relied upon his income to pay their mortgage and meet their living costs.[19]
[18]PCB 18C
[19]T50, L5-12
29 The plaintiff resumed full-time taxi driving with Savid Taxis on 4 November 2014. He starts most mornings between 4.00am-5.00am, at which time he will wash and vacuum his taxi. He will usually then drive a passenger to the airport from near his home, before waiting a period of time at the airport to get a return fare. He will then pick up whatever fares he can throughout the day. He finishes at about 4.00pm, when he takes the taxi to Moorabbin airport.
30 He said that a lot of his working day is spent waiting for a fare. He said he may only drive for two to four hours of the day. He said he would prefer it if he was driving for the whole 12 hour shift so he could maximise his earnings.[20]
[20]T103, L18-31
31 The plaintiff said he did not like waiting at the airport, as the queues were excessive. He preferred doing freeway trips, over inner-city traffic, as he said it caused less strain on his wrists. However, he acknowledged he could not be selective in his journeys, as he was required to take a customer wherever, and along whichever route they wanted. He said it was only if there was a dispatch job in which he knew the destination, that he could decline it. He said he would do that if it was near the end of his shift and the job would not take him towards Moorabbin airport.
32 The plaintiff said that he was very tired at the end of a shift, and would need to rest when he got home.[21] He also complained of increased wrist pain.[22]
[21]T104, 23-30
[22]T105, L1-6
33 The plaintiff has not consulted his doctors in respect of his bilateral wrist injury since his weekly payments were terminated.[23] He said he had not told the doctors about his wrist pain, as he understood there was nothing that could be done for him.[24]
[23]Exhibit 3 and T77, L5
[24]T77, L19-31, T78, L1-8
34 The plaintiff complained that he has not had a good night’s sleep since the accident.[25] He said to consultant psychiatrist Dr Robert Athey that he sometimes has difficulty getting off to sleep and remaining asleep.[26]
[25]T105, L13-27
[26]Defendant’s Court Book (“DCB”) 13
35 His wife provided an affidavit in support of the limitations the plaintiff suffers, as a result of his bilateral wrist pain, including domestic duties and recreational activities.[27] She also said he is sometimes restless in the night when she is sleeping.
[27]PCB 18a-18d
Medico-legal evidence
36 The plaintiff’s solicitors arranged for him to be examined by hand surgeon, Mr Murray Stapleton, in September 2013. Mr Stapleton diagnosed the plaintiff as suffering “significant ligamentous damage involving both wrists”.[28] Mr Stapleton did not recommend any further treatment. He was of the opinion that the plaintiff’s earning capacity as a taxi driver had been profoundly affected and that he would need to be retrained to enable him to obtain alternate employment.
[28]PCB 56
37 Mr Stapleton re-examined the plaintiff in February 2016. At that time, he diagnosed damage to the scapholunate and triangular fibrocartilaginous ligaments, on both sides. He noted that the plaintiff had returned to work as a taxi driver.
38 The plaintiff’s solicitors also arranged for him to be examined by orthopaedic surgeon, Mr Garry Grossbard, in March 2014. Mr Grossbard considered that the plaintiff had suffered a soft tissue injury to his wrists, with pathology affecting the scapholunate articulation, as well as the TFCC.[29] He considered the plaintiff would be limited in returning to work as a taxi driver and he felt he could not do a job where he was required to lift repeatedly or to forcibly use his hands or wrists.
[29]PCB 64
39 Mr Grossbard re-examined the plaintiff in February 2016. On examination, he noted that the plaintiff’s wrists did not appear deformed.[30] He undertook a grip strength test and found that the plaintiff’s grip strength “did not correspond to the strength measured on the formal examination”.[31] He considered the plaintiff would have ongoing difficulty with his wrists, but noted that he had been able to return to his normal occupation.
[30]PCB 65
[31]PCB 66
40 The defendant’s solicitors arranged for the plaintiff to be examined by hand surgeon, Mr Damian Ireland, in May 2015. He, too, attempted to measure the plaintiff’s grip strength, but found the variation too great to enable a reliable assessment.[32] He said he was unable to diagnose any serious physical problem affecting either wrist, and he considered the plaintiff’s prognosis good.[33]
[32]DCB 3
[33]DCB 4
41 In a subsequent report, Mr Ireland reviewed the radiological reports, and found that the imaging studies were essentially normal.[34] He noted the MRI was suggestive, but not diagnostic of, a minor soft tissue injury of the scapholunate level and the TFCC. On his clinical examination he concluded there were no positive findings to suggest serious soft tissue injury to any aspect of the wrist or distal radioulnar joint.
[34]DCB 9
42 In addition to the medico-legal opinions on the plaintiff’s physical injury, the plaintiff and the defendant also relied upon medico-legal psychiatric opinions. The plaintiff tendered two medical reports from psychiatrist, Dr David Weissman, following examinations in August 2013 and February 2016. In his most recent report, Dr Weissman diagnosed the plaintiff as suffering from a mild chronic adjustment disorder with depressed and anxious mood.[35] He was of the opinion the plaintiff did not require any specific psychiatric or psychological treatment.[36]
[35]PCB 50
[36]PCB 53
43 The defendant tendered a medical report from psychiatrist, Dr Robert Athey. He examined the plaintiff in March 2014, and was of the opinion the plaintiff was not suffering a diagnosable psychiatric condition.[37]
[37]DCB 20
Long-term
44 In order to satisfy the definition of serious injury, the plaintiff must prove the injury and its consequences are both serious and long-term.
45 I am satisfied that the plaintiff’s injuries and the consequences which flow from it are long-term. The injury was suffered over four years ago. The plaintiff is unwilling to undergo an arthroscopy and no other treatment is recommended.
Are the consequences “very considerable”?
46 I must now consider whether the consequences to the plaintiff can be described as “very considerable”.
47 The plaintiff has returned to his pre-injury employment and admits he is earning more money now than he was before the accident.[38] I am satisfied his bilateral wrist injury does not cause him any pecuniary disadvantage.
[38]T99, L25-31
48 I must next consider the plaintiff’s pain and suffering consequences. Given he has returned to his pre-injury employment, that will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences are serious.[39]
[39]Stepjic v One Force Group Aust Pty Ltd [2009] VSCA 181
49 In Haden Engineering Pty Ltd v McKinnon,[40] Maxwell P said at paragraphs 9–12:
[40](2010) 31 VR 1
“In its accepted interpretation, the ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. (I will refer to the second element as ‘the disabling effect’ of the pain.)
As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale mild/moderate/severe. Unless the pain is constant the Court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily compromise the following:
(a)what the plaintiff says about the pain (both in court and to doctors);
(b)what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c)what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d)what the objective evidence shows about the disabling effect of the pain.
As to (a) the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.”
50 Mr Smith submitted that the plaintiff’s credit was a key issue in this case, and further submitted that there were glaring inconsistencies in the plaintiff’s affidavits.
51 After considering the plaintiff’s affidavits and his viva voce evidence, I have some reservations about the plaintiff’s credibility. The following are examples of instances in which I consider he either exaggerated his situation, or gave a disingenuous answer:
(i) In his affidavit sworn on 16 October 2014, he stated he was unable to return to work as a taxi driver.[41] However, within three weeks of swearing this affidavit, he had returned to full-time work as a taxi driver. I consider this indicative of the plaintiff’s willingness to overstate his incapacity for work.
[41]PCB 6
(ii) In his subsequent affidavit sworn on 18 May 2016, the plaintiff stated that he can pick and choose his fares, and that he would generally pass on a fare if it was too far, or if it involved prolonged time in city traffic.[42] However, in cross-examination, he conceded it would generally only be in the afternoon, if a job was not heading towards Moorabbin, that he would turn it down.[43] I see this as a further attempt by the plaintiff to exaggerate the impact his wrist injury has on his capacity to work.
[42]PCB 10
[43]T25, 18-31
(iii) The plaintiff said that he was required to lift passengers’ luggage in and out of his car boot. Mr Smith then asked him how many medium-sized suitcases would fit in his taxi. Despite repeated questions, the plaintiff said he was unsure of the size of a medium suitcase. [44] It was not until one was identified in court (his instructing solicitor had one with her), that he was able to say that his car boot would hold one or two medium sized suitcases.[45] As an experienced taxi driver, regularly taking and collecting people from the airport, I considered his answers to this part of cross-examination un-cooperative, and lacked credibility.
[44]T34, L1-15
[45]T35, L12-13
(iv) The plaintiff said in both his affidavits that he no longer does household activities due to his bilateral wrist pain. He said he finds it difficult to vacuum or mow the lawn, “because these actions require me to push and pull heavy objects.”[46] In his later affidavit, he again said he does not do lawn mowing “because I have found that the activity required for prolonged periods of pushing the lawnmower is generally difficult and painful for me.”[47] In cross-examination, however, he conceded that he has not tried either of these activities. He said that because he had done them before the accident, he now simply expected that they would cause him pain.[48] I accept that both affidavits were misleading in this regard, as they made out he had tried the activities, and experienced pain, whereas in fact he had not.
[46]PCB 5
[47]PCB 12
[48]T56, L10-24
(v) The plaintiff overstated the medication which had been prescribed to him by doctors at the Wells Road Medical Centre. In his first affidavit, he said that he was prescribed Panadeine Forte on 14 April 2012, and that Dr Miao continued to prescribe him Panadeine Forte, although he rarely took it.[49] The records revealed, however, that the plaintiff was only ever prescribed Panadeine, and only on one occasion, on 20 June 2013.
[49]PCB 4
The plaintiff said that he was mistaken in relation to the name of the medication, as he did not appreciate the difference between Panadeine and Panadeine Forte.[50] Even if he made a genuine mistake in the name of the medication, his affidavit conveyed that he received more medication than was actually prescribed. In cross-examination, the plaintiff said he only ever received one or two prescriptions for pain medication.[51] This was not in his affidavit. Instead, I consider his affidavit was intended to convey an ongoing need for prescriptions of pain medication.
[50]T78, L21 - 31
[51]T78, L11-17
Further, the plaintiff said that the medication he was prescribed made him feel “drowsy and sick”.[52] In the absence of medical evidence explaining this reaction, I find drowsiness to be an unlikely reaction to a commonly used non-prescription medication.
(vi) The plaintiff complained that his life with his wife is not as enjoyable as it was before the accident. He said they used to have enough money to go on holidays. He said they do not now go out to restaurants and that he had not had any alcohol for over six months. Given the plaintiff is now earning more than he was before the accident, any financial difficulties he is experiencing arise from his wife no longer working, and are irrelevant to his bilateral wrist pain. Although an irrelevant matter, the plaintiff’s reference to his financial difficulties in cross-examination, demonstrated his attempt to blame a separate misfortune on his accident.
[52]PCB 4
52 When considered separately, these matters would not in my view be sufficient to tarnish the plaintiff’s credibility. When considered together, however, they make me reluctant to accept the plaintiff’s account of his pain, and the impairment it allegedly causes him.
53 His wife swore an affidavit in support of the pain and restrictions he experiences. While I attach some weight to her evidence, it is not enough to overcome the concerns I have regarding the plaintiff’s reliability as a witness.
54 I will now consider the plaintiff’s experience of pain and his disabling effects of pain. In doing so, I will attach greater weight to objective evidence, than to the plaintiff’s subjective complaints of pain.
55 In the plaintiff’s most recent affidavit, the plaintiff described his pain as “ever-present.”[53]
[53]PCB 10
56 At the commencement of his evidence the plaintiff said:
“The pain in both wrists, they come and go, but at the last – as I said to you, the last four weeks it’s worse in the left hand.”[54]
[54]T19, L21-23
57 It was only upon a further question from Mr Richards as to whether the pain is there all the time or whether it comes and goes, that the plaintiff said:
“The pain is always there, in both wrists, but the level of pain varies.”[55]
[55]T19, L27-28
58 In the Wells Road Medical Centre records, on 31 July 2013, the note of Dr Miao stated:
“…sometimes, he still feel discomfort such as pain, but sometimes, he is fine.”[56]
[56]Exhibit 3
59 This note was not put to the plaintiff. In those circumstances I refer to it with caution, and give it minimal weight in my judgment. That having been said, this does not assist the plaintiff in the issue as to the presence of his symptoms. I find myself in a state of uncertainty given the conflicting evidence.
60 The plaintiff’s primary complaint at the end of a working day, is that he is “very tired”.[57] It was only when directly asked about his level of pain at the end of a shift, that he spoke of increased pain in his wrists.[58]
[57]T104, L19-31
[58]T105, L1-6
61 The plaintiff claims that every night, his pain interferes with his sleep. There is no complaint of sleeping problems to his general practitioners. Dr Athey noted he sometimes has difficulty getting off to sleep and sometimes problems remaining asleep.[59] His wife refers to some restlessness in his sleep, but does not corroborate that it is a nightly occurrence.
[59]PCB 13
62 Mr Smith did not directly challenge the plaintiff on his pain levels or his difficulty sleeping. In his closing Mr Smith said it is difficult to challenge such claims, and the defendant instead relied upon its overall challenge to the plaintiff’s credibility which Mr Scott submitted undermined the entirety of the plaintiff’s claim.[60]
[60]T 119, L 4-13
63 Given the reservations I have expressed above regarding the plaintiff’s reliability, I am not satisfied the wrist pain is constant and interferes with his sleep to the extent alleged by the plaintiff.
64 The plaintiff gave evidence that he would like to be able to drive for his entire 12 hour shift. I accept this is motivated by his desire for an increased income, but it also shows his belief in his ability to perform driving duties, on a full-time basis, despite his alleged pain.
65 I must also consider what the plaintiff does about his pain. I note he decided against having the arthroscopy procedure recommended by Mr Berger. He takes minimal over-the-counter pain medication. He has not spoken to his doctors about his ongoing wrist pain, or his difficulty sleeping because of that pain. Notwithstanding his understanding that no treatment is available, I consider that the plaintiff’s failure to make any such complaints to his doctors after October 2014, indicates the pain is not as bad, or as constant, as the plaintiff alleges.
66 I must also consider what the doctors say about the plaintiff’s pain. I consider it significant that neither Mr Grossbard nor Mr Ireland were able to record a consistent grip strength test. Such an inconsistency, together with the equivocal medical imaging, demonstrates a lack of objective medical evidence for the doctors to explain the plaintiff’s complaints of pain.
67 The plaintiff’s most supportive medical opinion is from Mr Stapleton. However, in February 2016, when asked about the plaintiff’s prognosis, Mr Stapleton’s precursor was “if his presentation was genuine.”[61] Given the reservations I have as to the plaintiff’s reliability on the issue of his level of symptoms, I give little weight to Mr Stapleton’s opinion.
[61]PCB 60
68 In assessing what the plaintiff has lost, I should also have regard for what he has retained.[62] The plaintiff has retained the ability to do some of the activities he previously enjoyed, but to a lesser extent. He goes cycling with his wife about once a fortnight, which is less often than he used to ride.[63] He still plays the piano and guitar, but not for long, and it is less enjoyable.[64] He tried badminton a few times, but stopped as it was too uncomfortable.[65] Although he does not engage in the above activities as often as before, or with as much enjoyment, he is however still able to do them to a limited degree. His bilateral wrist injury would not impact on his ability to go on bush walks.
[62]Dwyer v Calco Timber (No 2) [2008] VSCA 260
[63]PCB 14
[64]T81, L18-21, and PCB 12
[65]T80, L14-31
69 There are other activities which he has simply not tried to do, as he believes they will place too much pressure on his wrist. This includes four-wheel driving, tennis, gardening and home maintenance. Given my uncertainty as to the level of the plaintiff’s symptoms, I am unable to assess, with any confidence, the impact which the plaintiff’s injuries may have on his ability to engage in these activities.
Conclusions
70 It is difficult to reconcile the lack of clear pathology and objective symptoms of bilateral wrist injury, with the plaintiff’s complaints of pain. I am not satisfied he suffers constant pain. He only takes over-the-counter medication occasionally. The plaintiff has returned to full-time employment as a taxi driver, and is earning more money now than before the accident. There are some recreational and domestic activities which he has stopped doing since the accident, but for most of these, he has not actually tried to see if he can do them. Given the mild pathology in his wrists, I am not satisfied that he is unable to do all such activities.
71 I am satisfied that the impairment to his wrists has some consequences, which might be described as significant or marked. However when judged by comparison with other cases in the range of possible impairments, I am not satisfied that his impairment is more than significant or marked and could not be described as being “at least very considerable”.
72 I therefore refuse the plaintiff’s application.
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