Broughill v Hallmark Cards Australia Limited
[2018] VCC 923
•29 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-05959
| MARK ANTHONY BROUGHILL | Plaintiff |
| v | |
| HALLMARK CARDS AUSTRALIA LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 May 2018 | |
DATE OF JUDGMENT: | 29 June 2018 | |
CASE MAY BE CITED AS: | Broughill v Hallmark Cards Australia Limited | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 923 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the left wrist – pain and suffering damages – loss of earning capacity – whether the aggravation to the left wrist meets the statutory test for “serious injury” – subsequent medical conditions interfering with the plaintiff’s capacity to work
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Application for serious injury certificate for pain and suffering and loss of earning capacity damages is granted in respect of the physical injury to the plaintiff’s left wrist at his employment on 14 February 2013.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R Middleton QC with Mr M Garnham | Slater & Gordon Limited Lawyers |
| For the Defendant | Mr A Saunders | Wisewould Mahony |
HIS HONOUR:
1 The plaintiff’s application is brought by Originating Motion dated 14 December 2017. The plaintiff seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for an injury suffered by him arising out of or in the course of his employment with the defendant, Hallmark Cards Australia Limited, on or about 14 February 2013.
2 The application made by the plaintiff in this case relies on a physical injury to his left wrist when he fell at work. The plaintiff seeks leave to bring proceedings for pain and suffering and loss of earning capacity in respect of the physical injury to his left wrist.
3 The following evidence was adduced during the hearing:
·The plaintiff gave evidence and was cross-examined.
·The plaintiff tendered the following documents:
§The Plaintiff’s Court Book (“PCB”) pages 1 to 10 inclusive and pages 22A to 66 inclusive (exhibit “A”)
§The Defendant’s Court Book (“DCB”) pages 1 to 11 inclusive (exhibit “B”).
·The defendant tendered the following documents:
§The Defendant’s Court Book, pages 12 to 25 inclusive
§The progress notes from the Dandenong West Medical Centre between 5 October 2017 and 15 May 2018 (exhibit 2).
4 Mr Saunders, counsel on behalf of the defendant, identified the following issues as relevant in this application:
(i)The plaintiff retains a capacity for suitable employment whilst not being able to do his pre-injury duties;
(ii)The plaintiff does not satisfy the range or statutory test for the consequences of his left wrist injury as being more than significant or marked and at least very considerable;
(iii)The plaintiff has suffered from supervening medical conditions which preclude him from working.
The Statutory Scheme
5 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”.
6 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 or in the course of his employment on or after 20 October 1999;[1]
[1]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”;[2]
[2]Barwon Spinners (ibid) at paragraph [33]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) Sub-section (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently;
(g) In conformity with Barwon Spinners,[3] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
[3]Supra
7 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
8 The plaintiff was born in Australia in 1958. He is now fifty-nine years old.[4] The plaintiff is a married man and lives with his wife. They have no children.
[4]PCB 2
9 The plaintiff was educated to Year 10.[5]
[5]PCB 2
10 Upon leaving school, the plaintiff worked in a number of process work and packer type employment. He remained in full-time employment until he injured his left wrist on 3 May 1991.[6] As a result of that injury, the plaintiff had four operations on his left wrist, resulting in a left wrist fusion.
[6]PCB 2
11 The plaintiff was not in employment between 1994 and 1999.
12 In August 1999, the plaintiff commenced work as a storeman with the defendant.[7] Whilst the plaintiff was employed with the defendant, he further injured his left wrist on 25 July 2007 when he tripped on a box at work. The plaintiff made a good recovery from that work accident and continued his work until the time of the injury, that is, the subject of this application. The plaintiff was injured on 14 February 2013.[8]
[7]PCB 2
[8]PCB 3
13 The plaintiff initially had cortisone injections to his left wrist region but subsequently, had surgery on 9 July 2013.
14 In October 2013, the plaintiff returned to work for a period of two weeks, working five days a week at four hours per day. He was unable to continue with his return to work program and was subsequently off work for a period of six months.[9]
[9]PCB 4
15 The plaintiff had a second attempt at a return to work program and was working two hours a day, two days a week in the sales part of the defendant’s shop. In October 2016, he was dismissed, as the only job offers that could be made to him related to returning to his old job of carrying out store work and despatch work at the premises. His doctor had certified him as unsuitable for that type of work. The plaintiff has not worked since October 2016.
16 The plaintiff has been diagnosed with chronic obstructive airways disease by Dr Li. The plaintiff was first seen for this condition on 23 March 2016. He has been treated with CPAP therapy.
17 In 2013, the plaintiff was treated for a frozen shoulder. This condition has resolved.[10]
[10]PCB 5
18 In May of 2017, the plaintiff had a fall at his home. He injured his left ankle and it remained in a moonboot for six months.
19 The plaintiff’s current position is that he remains at home. His wife works part time as a cleaner.
The injury with the Defendant
20 The plaintiff was working as a storeman with the defendant at the time of his injury. He described his injury in the following terms:
“I aggravated the left wrist/hand problems when I fell over at work on 14 February 2013. That fall occurred in the distribution area and when I was taking boxes off a pallet and putting them onto racks. I was required to work quickly and in doing this job I picked up a couple of boxes to take them to a rack when I tripped on the corner of the pallet the boxes were on. When I tripped I fell to the ground on my outstretched left hand which was in front of me. … .”[11]
[11]PCB 3
21 The plaintiff was initially treated by the company doctor at the Wheelers Hill Medical Clinic. An x-ray undertaken at that time did not display any abnormality in his left wrist. The left wrist was swollen.[12] The x-ray report noted that the plaintiff had had a previous arthrodesis to his left wrist, and that degenerative changes of a moderate grade effect had occurred. There, however, was no acute bone or joint injury seen.[13]
[12]PCB 3
[13]PCB 60
22 The plaintiff returned to work the next day and continued his duties. But due to ongoing pain, he attended at his own general practitioner, Dr Westmore.
23 On 25 February 2013, the plaintiff underwent a CT scan. The conclusion of the CT scan conducted on 25 February 2013 was as follows:
“Fusion of the proximal carpal bones and the radioscaphoid joint. Undisplaced fracture involving the dorsal aspect of the distal capitate. Moderate degenerative change of the 1st carpometacarpal joint.”[14]
[14]PCB 62
24 Dr Westmore referred the plaintiff to orthopaedic surgeon, Mr James Thomas. On 24 April 2013, Mr Thomas gave the plaintiff a cortisone and anaesthetic injection to his left thumb CMI joint. As a result of that injection, there was limited pain relief, and the plaintiff subsequently returned to Mr Thomas for further treatment.
25 On 9 July 2013, the plaintiff underwent an operation described as a left trapeziectomy and ligament reconstruction.[15]
[15]PCB 25
26 Mr Damian Ireland, hand surgeon, who examined the plaintiff on behalf of the defendant, described the operation in layman’s terms in the following manner:
“Suspensionplasty involves removal of the arthritic trapezium bone which separates the thumb from the wrist joint. In this case, the joint between the scaphoid (wrist) and the trapezium was arthritic as was the joint between the trapezium and the metacarpal (thumb). Once the trapezium bone has been removed, the thumb has to be suspended from the adjacent metacarpal bone using a soft tissue procedure to prevent the thumb descending to articulate with the scaphoid bone at the wrist. Hence the term excision and suspensionplasty. By removing the arthritic joints pain is alleviated and movement is preserved by creating a false joint. The aim of this treatment was to address the arthritic pain caused by the work injury on 14 February 2013.”[16]
[16]DCB 24
27 Following that operation, the plaintiff has had a pain management program with Mr Clayton Thomas, pain management specialist. He takes the medications of Panadol and Panadol Forte to alleviate the pain in his left wrist and thumb.
28 The plaintiff continues to see his general practitioner, Dr Westmore, on an “as needs” basis for ongoing treatment in respect of his left thumb.
Credit of the Plaintiff
29 The plaintiff gave evidence in this case and was cross-examined. I find that the plaintiff was of stoical disposition. The plaintiff is a man who has suffered three separate insults to his left wrist. The most recent insult is best described as “the straw that broke the camel’s back”. The plaintiff has other medical conditions which I find do not stop the plaintiff from actively engaging in the workforce. He suffers diabetes, which is controlled. He suffers from sleep apnoea for which he has a CPAP machine. He has worked his whole life as a storeman or in packer-type employment. Whilst he had return to work duties as a salesperson within the defendant’s shop, the plaintiff is not suitably trained to engage in administrative-type employment.
30 In the course of his evidence, I noted that the appropriate way to describe the plaintiff was that he was “brutally honest”.
31 It is appropriate in this particular case to deal with the issue of loss of earning capacity.
Loss of earning capacity
32 In order to establish that the plaintiff be given leave to bring proceedings in respect of loss of earning capacity, he must establish that:
(a)at the date of the hearing, he has a loss of earning capacity of 40 per cent of more pursuant to s134AB(38)(e)(i); and also
(b)after the date of hearing, the relevant loss of earning capacity will continue permanently pursuant to s134AB(38)(e)(ii).
33 The measurement of the loss of earning capacity as set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
34 The measurement of loss of earning capacity is set out as a comparison between “without injury” earnings and the capacity of “after injury” earnings that the plaintiff has if engaged in suitable employment. The former must be calculated by reference to the six-year period specified in s325(1)(f). These earnings consist of a gross income expressed at an annual rate that the worker was capable of earning from personal exertion, or would have earned, or would have been capable of earning from personal exertion had the injury not occurred.
35 The plaintiff’s “without injury” gross earnings is $869.00 per week. The plaintiff’s “after injury” earnings is nil. The plaintiff has been unable to obtain employment after he was laid off by the defendant in this case in October 2016. The defendant was unable to find suitable duties for the plaintiff to perform after the injury the subject of this application.
The medical opinions on the Plaintiff’s work capacity
Mr James Thomas, Hand Surgeon
36 Mr James Thomas prepared a report dated 4 July 2016 in respect of this matter. He noted that he had not reviewed the plaintiff since 30 July 2014.[17] The review was approximately one year after the surgery performed by Mr Thomas on the plaintiff’s left wrist.
[17]PCB 27
37 Mr James Thomas stated as follows:
“… At the time of most recent review Mark had significant ongoing pain, requiring regular splinting and analgesia. He was under the care of Dr Clayton Thomas, a pain management physician. I think it is likely Mark will have ongoing severe pain in his left wrist. This will likely cause significant limitation to his work, social and recreational activities. He will likely require ongoing analgesia for this problem. At the time of last review I did not think he would benefit from any further surgical intervention to his wrist.”[18]
[18]PCB 27
38 I accept the plaintiff’s evidence in this case that the plaintiff continues to take Panadol, two to three times a day, and Panadeine Forte, when he is in “so much pain”.[19]
[19]Transcript 36
Mr Clayton Thomas, Consultant in Rehabilitation and Pain Medicine
39 Mr Clayton Thomas first examined the plaintiff on 18 February 2014. He prepared a report dated 17 April 2018. Mr Thomas noted that the plaintiff is left-hand dominant. In his examination he observed that there was left arm wasting by two centimetres compared to the right arm.
40 Mr Clayton Thomas last reviewed the plaintiff in 2014. At that time the plaintiff was working two and a quarter hours twice per week in the defendant’s shop.
41 Mr Clayton Thomas stated that he was unable to give a definitive opinion about the plaintiff’s ongoing condition due to the amount of time between 2014, when he last saw him, and the present time.
Dr Xun Li, Consultant Respiratory and Sleep Physician
42 The plaintiff was reviewed by Dr Li on 23 March 2016.
43 The plaintiff has been continually under the care of Dr Li for his sleep apnoea until the present time. Dr Li has prescribed CPAP therapy for the plaintiff to deal with this condition. The plaintiff has, on a number of occasions, been hospitalised due to his sleep apnoea and breathing-related difficulties.
44 In relation to the lung condition and sleep apnoea nocturnal hyperventilation condition suffered by the plaintiff, Dr Li stated as follows:
“… I cannot see his lung condition and sleep apnoea/nocturnal hypoventilation are likely to preclude him from carrying out sedentary-type work such as light store picker/packer. However, he certainly will not be coping with any job when he has any other illness making his underlying conditions deteriorate. I expect he will be off work quite often because of his underlying medical conditions which is prone to deteriorate with any illness particularly chest infection.”[20]
[20]PCB 31B
45 I conclude from this opinion by Dr Li that the conditions of nocturnal hyperventilation and sleep apnoea do not preclude the plaintiff from engaging in picker-packer type work. Whilst it is possible that the plaintiff would have time off work as a result of chest infections and the like, they, of themselves, do not preclude him from being employed in suitable employment.
Dr Joseph Slesenger, Specialist Occupational Physician
46 Dr Slesenger assessed the plaintiff for medico-legal purposes on 17 March 2018. He prepared a report dated 6 April 2018.
47 Dr Slesenger took a history from the plaintiff about his return to work attempts. Dr Slesenger stated as follows:
“Mr Broughill advised that he ceased work between 2013 and 2015, returning to work performing light duties including data entry at Scoresby where he remained for about 2 weeks in the warehousing area. He had difficulty maintaining the attendance and ceased work. He then returned to work in 2016 and remained in work for about 18 months, working 2 days a week, 2 hours a day at the Card shop at Scoresby performing in a light customer service role. Alternative duties were withdrawn in early 2017 and he has not returned to work since. He has not undergone retraining.”[21]
[21]PCB 37
48 Dr Slesenger diagnosed the plaintiff as suffering from the following conditions as a result of the accident in February 2013:
“● Left wrist soft tissue injury and possible scaphoid fracture.
● Aggravation of left thumb CMC joint osteoarthritis for which Mr Broughill has undergone left trapeziectomy and ligament reconstruction.
● Chronic left wrist pain.”[22]
[22]PCB 43
49 Dr Slesenger stated that the prognosis for the plaintiff must be guarded. Dr Slesenger optimistically suggested that there may be opportunities for further treatment, and anticipated improvement for the plaintiff’s overall presentation.[23]
[23]PCB 43
50 Dr Slesenger then went on to say as follows:
“… I note a significant deterioration as a result of the index accident and I am satisfied that the injury to his left wrist and hand sustained on 14 February 2013 is a significant contributing factor to his ongoing impairment.”[24]
[24]PCB 44
51 Dr Slesenger then reviewed the four roles that were proposed for the plaintiff to perform. The four roles were:
§ Sales assistant
§ Despatch clerk
§ Purchasing officer; and
§ Security officer.
52 For each of those roles, Dr Slesenger says the plaintiff was not suitable to return to work in those capacities.[25]
[25]PCB 46
Mr Michael A Khan, Orthopaedic Surgeon
53 Mr Khan saw the plaintiff and reported on 19 April 2018.
54 Mr Khan noted that the plaintiff took medications of Panadol and Panadol Forte tablets as needed.[26]
[26]PCB 53
55 Mr Khan examined the plaintiff, in particular, his left wrist. He noted as follows:
“Following the fall on the left wrist as he tripped on 14 Februarys (sic) 2013, he was diagnosed as having a fracture of the scaphoid bone with degenerative changes affecting the carpometacarpal joints of the left thumb area and base of the left thumb.”[27]
[27]PCB 55
56 Mr Khan’s opinion about the plaintiff’s ability to return to pre-injury duties is set out in his report dated 19 April 2018, as follows:
“As a consequence of the physical injury and impairment of your client’s left wrist and hand, excluding any psychological or psychiatric condition, he does not have a capacity to perform his pre-injury duties either on a part time or full time basis and such incapacity is likely to remain permanent or last for the foreseeable future.”[28]
[28]PCB 58
Mr Murray J Stapleton, Plastic and Hand Surgeon
57 Mr Stapleton examined the plaintiff on behalf of the defendant. His first report is dated 30 May 2013, which is prior to the date of the surgery. His second report is dated 23 May 2014. The report and examination is approximately one year after the surgery to the plaintiff’s left wrist. At that time, Mr Stapleton noted that the plaintiff was medicated with Lyrica, Tramadol and Codeine.[29]
[29]DCB 6
58 In respect of the plaintiff’s work capacity in the future, Mr Stapleton said as follows:
“2.He will need analgesic medication for the rest of his life. I believe he has reached maximum medical improvement and the chance of him returning to any meaningful work is very slim indeed.
…
5.The injury here is further destruction of the wrist joint following a fall at work on 14 February 2013.
…
7.He will never return to pre-injury duties.
8.He does have a work capacity if he uses his right hand only, but, even at the workplace on his very reduced hours, he is of the view that he cannot sustain any greater work loading upon him.
9.He has returned to very light duties using his right hand only.
…
13.He has a very limited work capacity and I am not confident he will ever increase that capacity.
…
15.There is nothing untoward affecting his recovery.”[30]
[30]DCB 7
59 Whilst the Court was not given the set of questions asked of Mr Stapleton at the time of his reporting, it is clear that his prediction in 2014 was that the plaintiff’s future was, in terms of returning to work, very bleak. I find that Mr Stapleton’s opinion at that time has proved prophetic unfortunately for the plaintiff.
60 Mr Stapleton then examined the plaintiff in 2017. He noted that the plaintiff’s power in his left wrist was very much weaker, no doubt because the wrist has been fused.[31] In the opinion section of his report, Mr Stapleton noted as follows:
[31]DCB 10
“2.His present medical condition is a mixture of a previous injury in 1991 causing the need for his left wrist to be fused and an aggravation of his wrist problems from the fall described in the report above whilst he was an employee of Hallmark Cards Australia Limited.
…
5.I believe his presentation was genuine.
…
8.It is difficult to estimate his situation with his left wrist prior to this injury, but sufficient to state that he was working, albeit with some difficulty because his left wrist was fused, but had he not have fallen, I hold the view that it was probable that he could not work and retire at his own discretion.
… .”[32]
[32]DCB 11
61 It is clear from Mr Stapleton’s reports that his opinion is that the plaintiff’s final insult to his left wrist on 14 February 2013 has caused the plaintiff to be unable to engage in suitable employment.
Dr Philip Mutton, Consultant Occupational Physician
62 Dr Mutton examined the plaintiff and reported on 10 October 2017.
63 Dr Mutton took a history from the plaintiff that he returned to work in October 2013. He noted that the plaintiff worked for a few weeks doing some computing, and then was unable to continue. The plaintiff told Dr Mutton that he was off work for a further six months before he resumed work in 2014 in the defendant’s shop. He was serving customers until 2016.
64 Dr Mutton also took a history from the plaintiff that the plaintiff believed “his left wrist was back to its pre-2013 status.” In his evidence, the plaintiff agreed he may have told Dr Mutton that, but he just could not remember. I found that concession by the plaintiff somewhat surprising given the consistency of his history to doctors and his other evidence that he continually takes Panadol for pain relief and that he, on occasion, takes Panadol Forte to alleviate his pain symptoms.
65 Dr Mutton’s opinion in relation to the plaintiff’s work capacity is as follows:
“He has had a fusion of the left wrist. He has pain and discomfort with heavy lifting. He should lift no more than 1kg to 2kg. He cannot do repetitive work with the wrist. He can nonetheless supinate and pronate as there is no loss at the elbow. He can do normal day-to-day activities with good dexterity of all digits including the thumb. It is noteworthy that he was working satisfactorily prior to his termination from employment but only working 2 days of 2 hours.
He can do some light work only. He can do some light packaging work. He can do some light assembly work. He can do some light administration work. He can utilise his skills in warehousing in an administration role. He would not be able to work doing physical manual work incorporating lifting more than 2kg on a regular basis. He cannot do repetition work with the left hand. He is left hand dominant.
… .”[33]
[33]DCB 16
Mr Damian Ireland, Hand Surgeon
66 Mr Ireland examined the plaintiff on behalf of the defendant for medico-legal reporting purposes. He prepared reports dated 7 March 2018 and 9 May 2018.
67 Mr Ireland took a history from the plaintiff that his left wrist was pain free prior to the work accident on 14 February 2013. He also took a history from the plaintiff that the plaintiff had lost grip strength since his recent injury due to a combination of decreased power and pain in the left wrist. He further took a history from the plaintiff that he was taking Panadeine Forte, four per day, for the left wrist pain.
68 Mr Ireland gave his opinion as follows:
“In my opinion the worker has sustained an injury to the left basal thumb joint following a work injury on 14 February 2013. In my opinion this injury has exacerbated underlying symptom free osteoarthritis which may also [have] been contributed to by the unrelated work injury causing arthrodesis of the wrist.
…
As stated above, the surgery was for pan trapezial arthritis at the basal thumb joint. Mr Broughill was adamant that he was symptom free with regard to pain prior to the recent injury. Conservative measures directed at the basal thumb joint osteoarthritis failed to alleviate symptoms and surgical treatment has followed and this has been symptomatically successful. In my opinion, the work has aggravated and exacerbated prior the (sic) symptom free condition which may have been contributed to by the unrelated wrist arthrodesis.”[34]
[34]DCB 21
69 Mr Ireland went on to state:
“Based purely on physical considerations of the left thumb and wrist, it is my opinion that Mr Broughill would be able to resume his previous work doing alternative duties entailing office work on a full-time basis.
…
I have reviewed all of these imaging studies and have viewed some of them as outlined above. It is probable that the prior wrist injuries which resulted in arthrodesis of the wrist have exacerbated and accelerated the development of pan trapezial osteoarthritis, however the worker was pain free prior to the recent work injury with regard to the wrist and left thumb.”[35]
[35]DCB 22
70 On the basis of all the medical opinions and the plaintiff’s evidence, I find that whilst it is theoretically possible that the plaintiff could engage in administrative type duties for a short period of time on limited days per week, the reality is that he would not be able to obtain employment in that manner or, indeed, be able to retain it once he achieved it. It was clear that the plaintiff had exhibited genuine attempts to return to work on two separate occasions after his surgery to his left wrist. The final period of time for his return to work activities amounted to two days a week, two hours per day. This limited capacity for return to work in 2014 and later, in 2016, is clearly indicative of the plaintiff’s capacity to engage in suitable employment.
71 I find that the injury which occurred to the plaintiff’s left wrist on 14 February 2013, amounted to an aggravation of his pre-existing left wrist injury position to the extent where he is now unable to work. The plaintiff, up until that time, had worked continuously with the defendant from 1999 until 2013.
72 Based on the evidence in this case, I find that the plaintiff’s injury to his left wrist and his inability to work as a result of it is permanent, in the sense that it is for the foreseeable future.
73 In respect of the pain and suffering consequences of the left wrist injury, I find as follows:
(a) The plaintiff suffers considerable pain to his left wrist, requiring the ingestion of medication, usually Panadol, but on occasion, Panadol Forte;
(b) The need to take medication is a very considerable consequence;
(c) The plaintiff has difficulty toileting, which he described in his affidavit. The injury to his left wrist is to his dominant hand. This interference with his activity of daily living would be a significant and embarrassing one.
Conclusion
74 I conclude, on the basis of my findings, that the plaintiff is unable to engage in suitable employment due to the aggravation to his left wrist injury which occurred at his place of employment on 14 February 2013. The plaintiff’s ability to engage in any employment has been destroyed. This incident, whilst on its face may appear to be a reasonably insignificant incident, has resulted in the impact on the plaintiff as being “the straw that broke the camel’s back”.
75 I grant the plaintiff leave to bring proceedings to recover damages for both pain and suffering and loss of earning capacity damages as a result of the left wrist injury he suffered at his place of work on 14 February 2013.
76 I will hear the parties on costs.
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