Chol v Brooklyn Meat Processors Pty Ltd
[2013] VCC 1890
•4 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00217
| TOR ATAY CHOL | Plaintiff |
| v | |
| BROOKLYN MEAT PROCESSORS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 November 2013 | |
DATE OF JUDGMENT: | 4 December 2013 | |
CASE MAY BE CITED AS: | Chol v Brooklyn Meat Processors Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1890 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment to the right forearm and hand – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(37)(a)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Franklin v Ubaldi Foods Pty Ltd (1995) 21 MVR 314
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Mr J Harris | Shine Lawyers |
| For the Defendant | Mr J Batten | Minter Ellison |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with the defendant on 22 June 2008.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is impairment to the right forearm and hand.
6 The plaintiff relied upon three affidavits, two sworn by the plaintiff on 17 August 2011 and 30 October 2013 and an affidavit of his sister, Kristina Chol, sworn on 1 February 2013. The plaintiff was cross-examined. I have not summarised the plaintiff’s affidavits or his evidence. I will refer to the plaintiff’s relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]Section 134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a) “the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant;[2]
[2]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
(b) “the injury” with its resulting impairment must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c) “the consequences” to the plaintiff of his impairment to the right forearm and hand in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[4]
[3]Barwon Spinners (supra) at paragraph [33]
[4]Section 134AB(38)(b) and (c)
9 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
10 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[5]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[6]
[5][2009] VSCA 181
[6](Supra) at paragraph [42]
11 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[7]
[7]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [44]
12 The test for “serious”, as set out in paragraph (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
13 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard;[8]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[9]
[8]Section 134AB(38)(j) of the Act
[9] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The issue
14 Counsel for the defendant informed the Court there were three issues.
15 Firstly, the identification of the injury is in issue. The defendant admits a compensable injury occurring to the right wrist on 22 July 2008. That injury involved a laceration and damage to the flexor digitorum profundus of the right forearm but did not involve damage to the median nerve. In November 2009, the defendant accepted liability for a carpal tunnel release, and median nerve neurolysis procedures said to have been required in consequence of keloid scarring subsequent to the laceration.
16 Secondly, the plaintiff is not a credible witness.
17 Thirdly, the defendant informed the Court that this is a “range case”, namely that the consequences of the plaintiff’s impairment to the right forearm and hand do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range.
Investigations
18 On 21 August 2009, Dr David Freilich, neurologist, conducted a nerve conduction study report. The findings are those of a right carpal tunnel syndrome.
19 On 21 February 2011, an x‑ray of the left hand concluded:
“1 Fracture in the terminal phalanx of the left second finger.
2 Another hairline non-displaced fracture in the base and shaft of the middle phalanx of the left third finger.”
The Plaintiff’s medical evidence
Northern Plastic Surgery operation report
20 On 2 August 2010, an operation report confirmed that Mr Mark Baldwin, plastic surgeon, performed surgery on the plaintiff’s right hand and forearm. In a letter dated 18 December 2009 to QBE, Mr Baldwin said that the plaintiff’s new employment after 12 August 2008 did not impact on his right forearm/hand. He said the injury was related to some swelling and scar tissue caused by the original injury. He did not consider that activities outside the plaintiff’s original employment (after 12 August 2008) would have brought about the current diagnosis. He said as far as he was aware, the symptoms had persisted since the surgery and were relatively unchanged.
Report of Western Health
21 On 16 October 2010, Professor Ian Brand, medical administrator, wrote to the plaintiff’s solicitor and said the plaintiff presented at the Sunshine Hospital on 10 June 2010 with an onset of left lower wrist pain and swelling. The plaintiff was diagnosed with De Quervain’s tenosynovitis because of repetitive use of his left arm while working at an abattoir, gutting sheep. His left wrist was splinted, he was referred to the Plastic Outpatient Clinic for further treatment and was referred to an occupational therapist.
22 The plaintiff attended occupational therapy on 25 June and 2 July 2010 when the pain was much improved. He was seen in the Occupational Therapy Department on 9 and 15 July 2010. He was provided with a return to work certificate on modified duties using his right hand only. On 29 July 2010, the plaintiff was pain free with a full range of movement. The plaintiff was discharged from the clinic.
23 On 15 January 2011, Professor Brand confirmed that in relation to the 22 July 2008 incident, the plaintiff attended with a work injury – an accidently cut right wrist. It was decided to irrigate the wound, dress it, put the wrist in a back slab and discharge the plaintiff with analgesia and the Plastic Surgery Department would contact the plaintiff regarding further surgery.
Mr Mark Baldwin
24 On 2 November 2010, Mr Baldwin, plastic surgeon, confirmed that on 24 July 2008, he performed a debridement and exploration of the wound. Two months following the surgery, the plaintiff complained of symptoms of median nerve dysfunction in the right hand. A nerve conduction study was performed, which was consistent with carpal tunnel syndrome. Following the surgery, the plaintiff experienced some improvement in his condition, although he still had residual median nerve weakness and sensory changes. The plaintiff had a large forearm scar which may become hypertrophic. Mr Baldwin expected he may have permanent loss of function in the hand.
25 On 15 May 2012, Mr Baldwin reported to the plaintiff’s solicitor that the plaintiff incurred a stab wound to his right forearm at work in July 2008. The stab wound was adjacent to the median nerve and was intact and was proximal to the flexor digitorum superficialis but entered the flexor forearm muscle quite deeply. The plaintiff complained of altered sensation in his right hand and in August 2010, Mr Baldwin re-operated, performing a carpal tunnel release and neurolysis of the median nerve in the forearm. No significant compression or evidence of damage to the nerve was noted. A couple of small lesions of vessels crossing the nerve were diathermal in the forearm. The plaintiff was last reviewed in February 2011 and reported some improvement in his symptoms.
26 Mr Baldwin said the plaintiff has persistent altered sensation and weakness of the left hand but further surgery is unlikely to be of any benefit and he expected the current condition will not improve significantly with time. He noted the plaintiff had returned to his pre-injury duties and had struggled to do them. He said it would not surprise him if the plaintiff was unable to perform the very arduous, demanding and repetitive activity that he had previously performed in meatworks. He thought the plaintiff was capable of performing most activities of daily living. He said the plaintiff would be limited by his altered sensation and diminished strength in the hand.
Mr Anthony Berger
27 In January 2013, Mr Berger, hand and upper limb surgeon, reported to the plaintiff’s solicitor that he assessed and managed the plaintiff’s right arm injury in December 2012. The plaintiff was left hand dominant. The plaintiff complained of numbness and weakness in his right hand, numbness in all fingers, which appeared to have improved a little, and weakness of pinch grip. Mr Berger said there is subjective loss of sensation in the thumb, and index, long and ring fingers. There is a zigzag collapse of the right thumb with hyperextension of the distal joint and flexion of the metacarpophalangeal joint. Mr Berger said he assessed the plaintiff as having damage to the flexor tendons and possibly the median nerve in his forearm, although he had no information as to exactly what structures were damaged. Mr Berger referred the plaintiff to a hand therapist to provide a splint to support the thumb. The plaintiff was referred for intensive hand and grip strengthening exercises.
28 Mr Berger said the plaintiff presented with weakness and sensory changes in his right hand that dates back to a laceration to the volar aspect of the right forearm. The plaintiff has undergone two surgical procedures. The plaintiff presented specifically with weakness in his right thumb, although a splint failed to improve his weakness. He believed the plaintiff’s condition has stabilised and no further treatment is required.
Dr David Middleton
29 In February 2013, Dr Middleton, occupational health and rehabilitation consultant, assessed the plaintiff at the request of the plaintiff’s solicitor. He said the plaintiff presented as a straightforward person who clearly lacks understanding as to the failure of his condition to recover. Dr Middleton said on examination, the most striking problem was the loss of 75 per cent of the right hand grip strength. He considered the problem involved the median nerve, which required an updated nerve conduction test to adequately assess. A nerve conduction test performed on the right median nerve conduction at the wrist was normal. It was his opinion the plaintiff suffered permanent damage to the median nerve, with numbing sensation involving the palmar aspect of the lateral three digits. He also suffered with damage to the extensor tendons of the thumb, resulting in serious loss of pinch grip and hand grip strength, which is no longer suitable for surgery and is reliant upon the best efforts of a functional restoration program. He said there is permanent damage to the flexor tendon on the median nerve.
30 He said ongoing treatment will be restricted to conservative management. The plaintiff will be permanently disabled. The prognosis of the plaintiff is guarded. The major impairment is that of damage to the median nerve involving major losses in grip strength and pinch strength and also dulling of sensation of the right thumb and index finger and the function of the flexor tendons to the right thumb.
31 The combined result of the injury is an instability at the first right metacarpal phalangeal joint. He said the plaintiff no longer has the physical capacity to safely resume work as a butcher or in lesser skilled jobs, including labouring and slicing.
Mr Owen Deacon
32 In March 2012, Mr Deacon, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. It was Mr Deacon’s view the plaintiff suffered a stabbing injury to his right forearm and subsequently his symptoms and signs showed that he developed a carpal tunnel syndrome distal to the stab wound in his right wrist which was decompressed. Mr Deacon said there is still the evidence of weakness in the right hand and sensory changes. He accepted employment was a significant contributing factor. He said the injuries are permanent and the plaintiff needs to look for alternative work. He said the plaintiff would not be able to do strong repetitive work with his right arm lifting, twisting, holding, grabbing, gripping or using a pistol-type grip repetitively in any work he takes on.
Mr Kenneth Brearley
33 In June 2012, Mr Brearley, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. He described the plaintiff as genuine, who speaks English well and is keen to return to some form of employment. Mr Brearley diagnosed a laceration of the right distal forearm with no tendon, nerve or vascular trauma. He developed a carpal tunnel syndrome which required operative carpal tunnel release and neurolysis of the median nerve. He accepted the injuries were permanent and that the plaintiff has reached his maximum medical improvement. He said the plaintiff could not return to his pre-injury duties because of ongoing symptoms in the right forearm and hand. He would need to obtain slightly lighter type work. He said it was the discomfort and pain in the wrist and forearm which limited his ability to return to heavy manual work.
Dr Helen Sutcliffe
34 In March 2013, Dr Sutcliffe, occupational physician, examined the plaintiff at the request of the plaintiff’s solicitor. It was her view the plaintiff had suffered total incapacity for his pre-injury duties following a second operation and has no capacity to undertake that occupation now or in the foreseeable future. She said the plaintiff’s physical limitations of the right upper limb, his non-dominant limb, prohibit the heavy manual handling work that is required in those occupations of packing, lifting, labouring, or because of the heavy manipulative load required in the occupation. She said the plaintiff had limitations on capacity as a result of the right upper limb of persistent heavy lifting, manipulation, repeated movement, pushing, pulling and lifting of the right upper limb. His limitations are a result of the work-related accident.
35 The plaintiff was undertaking training in a business studies course. She believed once his training was completed, he will have the capacity to undertake a more sedentary occupation.
The Defendant’s medical evidence
Mr Frank Ham
36 In June 2011, Mr Ham, plastic surgeon, assessed the plaintiff at the request of the defendant’s insurer. Mr Ham used a Jamar dynamometer and determined the plaintiff’s strength of grip of his right hand was only 75 per cent of the strength of his left hand. He said there was great variability by the plaintiff in his replies, which made definite extent of neurological dysfunction not possible to record. He accepted the impairment had stabilised.
Mr Damian Ireland
37 In October 2011 and May 2013, Mr Ireland, hand surgeon, examined the plaintiff at the request of the defendant’s solicitor. In 2011, Mr Ireland said the plaintiff presented as an honest recorder of the historical facts and showed no tendency to exaggerate his symptoms.
38 In 2013, he said he had difficulty in elucidating a clear history. The plaintiff seemed uncertain regarding his current symptoms. Mr Ireland noted that there was no wasting of the intrinsic muscles and there was full opposition of the thumb to all finger pulps. Sensation tested by two-point discrimination was normal. He attempted to measure grip strength using the Jamar dynamometer but the variation on both sides exceeded 20 per cent with three successive measurements, and rapid exchange from right to left with the instrument also produced a variation greater than 20 per cent, invalidating the test.
39 He diagnosed Chronic Pain Syndrome – right upper extremity. He was unable to make a diagnosis of any significant physical problem affecting the plaintiff’s right upper extremity. He did not believe the plaintiff suffered any serious physical problem affecting the right upper extremity. He said the plaintiff’s condition with respect to the initial laceration and subsequent carpal tunnel release surgery had substantially healed. He was unable to objectively measure the strength with the right hand. There was no evidence of wasting of the right forearm musculature which would normally be present for a genuine loss of grip strength following injury. He said the current symptoms were consistent with the injury. It was his opinion the plaintiff did not have an incapacity for his pre-injury job description. There was no impediment to the plaintiff gaining employment which requires use of a keyboard in a full-time capacity.
Dr Amanda Sillcock
40 In December 2012, Dr Sillcock, occupational physician, medically examined the plaintiff at the request of the defendant’s solicitor. Dr Sillcock diagnosed a laceration to the right forearm which resulted in secondary carpal tunnel syndrome. She said the plaintiff had some sensory loss over the right thumb consistent with the radial nerve distribution. She believed the plaintiff’s condition had stabilised and was unlikely to change in the foreseeable future. She said the plaintiff’s presentation was consistent with the stated symptoms and alleged injury. She believed the plaintiff had a minor partial incapacity for work caused by the right arm/hand injury. She said the plaintiff was fit to undertake any of the following occupations: light hand packer; fork lift driver; poultry food process; butcher’s sales assistant; car park officer; machine operator and traffic controller. She imposed restrictions on very heavy lifting in excess of 15 kilograms.
Credit of the Plaintiff
41 The plaintiff is Sudanese. English is his second language and he gave his evidence without the assistance of an interpreter. He studied English at school in Sudan and continued his English language studies on arriving in Australia at a multicultural centre in St Albans. The plaintiff was difficult to understand. His accent was thick and he mumbled badly. He spoke quickly and it was often difficult to understand his answers to questions.
42 Counsel for the defendant submitted that the plaintiff was not a credible witness. Counsel said I should have reservations about the credit of the plaintiff for the following reasons.
43 First, the plaintiff had been subject to traffic charges. I accept that the traffic charges were at the low end and did not bring the plaintiff’s credit into disrepute.
44 Secondly, counsel for the defendant relied upon a statement in Mr Ham’s report that the plaintiff had not been working since the second operation. In cross-examination, the plaintiff conceded he was working in a warehouse at Tullamarine for eight months after the second operation. The Court of Appeal has considered histories recorded by doctors and said:
“Two observations should be made about the history as recorded. First, what history was given to a doctor raised the questions as to what the history giver said and what the history taker recorded. To assume right on one side or the other would run counter to experience.”[10]
[10]Franklin v Ubaldi Foods Pty Ltd (1995) 21 MVR 314 per Ashley JA
45 Accordingly, I reject the defendant’s submission on this point.
46 Thirdly, there was an issue as to whether the plaintiff’s presentation to doctors accurately reflected his residual disability. When Mr Ham tested the plaintiff’s sensation using the two-point discrimination test, he found the plaintiff’s reaction so variable that an accurate and reliable finding was not possible. He said there was some indication that the sensation over the thenar eminence was significantly decreased. Mr Ham said:
“Unfortunately great variability by the worker in his replies made definite extent of neurological dysfunction not possible to record.”
47 Counsel for the defendant said that this is significant when the results of the tests conducted by Dr Yassa in October 2010 showed a normal power of the right hand and tests conducted by Fiona Mate, physiotherapist, in December 2010 showed grip in the strength of the left and right wrist was equal. Counsel said the true position of the plaintiff is that recorded by Dr Yassa and Ms Mate, and the plaintiff is misleading Mr Ham and Mr Ireland. None of the medical witnesses suggested the plaintiff was misleading. In 2013, Dr Middleton recorded a 75 per cent loss of right hand grip strength.
48 Finally, counsel for the defendant submitted the plaintiff’s memory was selectively poor. He was evasive. I did not form the opinion that the plaintiff’s memory was poor and/or selective. The plaintiff asked for questions to be repeated and he answered questions as best he could, given English is his second language.
49 I was shown no film of the plaintiff, even though video surveillance of the plaintiff was referred to in the index of the Defendant’s Court Book. I can only conclude that the film did not assist the defendant.
50 Overall, I found the plaintiff was a witness of truth.
Analysis of the evidence
51 I must make the assessment at the time of hearing the application. Accordingly, I place greater weight on the most up-to-date medical evidence of Mr Berger, Dr Middleton, Mr Deacon, Mr Brearley, Dr Sutcliffe, Mr Ireland and Dr Sillcock.
52 It was not in issue that the plaintiff suffered a compensable injury to the right forearm and hand, the plaintiff being left hand dominant. All medical witnesses accepted the plaintiff suffered a laceration to the right wrist, which resulted in debridement and exploration of the wound. Two months following the surgery, the plaintiff complained of symptoms of median nerve dysfunction of the right hand. A nerve conduction study was performed which was consistent with carpal tunnel syndrome. Following surgery, the plaintiff complained of residual median nerve weakness and sensory changes.
53 Dr Middleton thought that the major impairment was damage to the median nerve involving major losses in grip strength and pinch strength, and also dulling of sensation of the right thumb and index finger and the function of the flexor tendons to the right thumb.
54 The majority view expressed by Mr Baldwin, Mr Deacon and Mr Brearley was that there was no evidence of damage to the nerve but that the plaintiff had persistent altered sensation and weakness of the right hand which would not be assisted by surgery and which would not improve. Mr Berger said he assessed the plaintiff as having damage to the flexor tendons and possibly the median nerve in his forearm, although he had no information as to exactly what structures were damaged. Mr Brearley said the injuries were permanent.
55 Mr Ham accepted that there was an impairment which had stabilised. Because of the great variability in measuring the strength of the right hand with that of the left hand, he was not in a position to determine the definite extent of neurological dysfunction.
56 Mr Ireland had the same difficulty with measuring grip strength. He concluded that the plaintiff had a Chronic Pain Syndrome of the right upper extremity and was unable to make a diagnosis of any significant physical problem affecting the plaintiff’s right upper extremity.
57 I am less persuaded by the opinion of Mr Ireland, because he did not address the plaintiff’s complaints of diminished grip strength, intermittent numbness affecting the right thumb and intermittent pain in the right forearm extending proximally from the scar to the elbow joint. He concentrated on the carpal tunnel syndrome. Furthermore, he was the only doctor who diagnosed Chronic Pain Syndrome of the right upper extremity. He said there was no incapacity for his pre-injury work, which was at odds with the other medical witnesses who expressed a view as to work.
58 Other than Mr Ireland, of those medical witnesses who expressed a view in relation to work, the view was that the plaintiff should seek alternative employment, and restrictions were imposed by Mr Deacon, Mr Brearley, Dr Sutcliffe, Dr Middleton and Mr Baldwin.
59 Dr Middleton said the plaintiff had loss of hand grip strength and that he no longer has the safe physical capacity to resume work as a butcher or in a lesser skilled job, including labouring and slicing, due to the disability of his right hand.
60 Mr Baldwin said he would not be surprised if the plaintiff was unable to perform the very arduous, demanding and repetitive activity that he had previously performed in meatworks. He thought the plaintiff was capable of performing most activities of daily living. He said the plaintiff would be limited by his altered sensation and diminished strength in the hand.
61 Mr Deacon said the plaintiff’s injuries were permanent and he needed to seek alternative work. He said the plaintiff would not be able to perform work that involves strong repetitive work with his right arm, including lifting, twisting, holding, grabbing, gripping or using a pistol grip.
62 Mr Brearley said the plaintiff could not return to pre-injury duties because of ongoing symptoms in the right forearm and hand. Mr Brearley said the plaintiff’s capacity for employment is now less than prior to the accident because of the ongoing discomfort and sensation of numbness in his hands. He said the discomfort and pain limits the plaintiff in returning to heavy manual labour. He said the plaintiff would need to obtain slightly lighter work. He said he should avoid lifting beyond 5 kilograms with the right arm and should not carry out repetitive movements with the right arm. He thought he would be suitable for medium manual type work.
63 Dr Sutcliffe said the plaintiff had suffered total incapacity for his pre-injury duties. She said the plaintiff’s physical limitations of the right upper limb prohibit heavy manual handling work. She said he had restrictions on persistent heavy lifting, manipulation, repeated movement, pushing, pulling and lifting using the right upper limb.
Pain and suffering consequences
64 It is necessary for me to consider whether the pain and suffering consequences satisfy the statutory test. The plaintiff said he has constant aching pain in his right forearm and hand. If the scarring on the right wrist is knocked, it causes pain up his arm. He has obtained casual work approximately four days a week with ALC in the meat processing industry in Colac. He uses a knife with his left hand. He tries to protect his right hand while doing work but it feels like it is “killing him”. In September 2013, he had three to four days off work due to pain and swelling in the right forearm, and attended a general practitioner, Dr Oludare, because of the pain.
65 The plaintiff reported the pain he suffers to Mr Brearley, Dr Middleton, Mr Berger and Mr Ireland. Mr Ireland reported that the plaintiff complained of pain that circumferentially affects the entire right upper extremity from the wrist to the shoulder. The pain is episodic but the plaintiff was unable to say what precipitates or what eases the pain, or how often it occurs or how long it lasts.
66 The plaintiff reported to Mr Brearley that he occasionally had pain through the whole of the right arm from the shoulder to the wrist. Mr Brearley said the plaintiff’s discomfort and pain in the wrist and forearm limit his ability to return to heavy manual work.
67 The plaintiff reported to Dr Middleton that he had right hand weakness and pain and disturbance at night where the pain extends from the right shoulder into the hand. The plaintiff reported numbness and weakness in his right hand, in particular numbness in all fingers, which had improved a little, and weakness of pinch grip.
68 No doctor suggested that the plaintiff’s complaint of pain was inappropriate. Accordingly, I accept the level of pain the plaintiff reports.
69 The plaintiff’s evidence was that he was prescribed medication. He currently takes Panadol but it only provides very limited relief for a short period of time. He reported to Mr Brearley that he takes Panadol occasionally. I accept that the plaintiff’s level of medication is at the low end of the scale.
70 The plaintiff has undergone two surgical procedures and is still having persistent problems. The medical evidence is that there is no further surgery that will assist the plaintiff. Dr Middleton said that his treatment is limited to conservative physical management.
71 The plaintiff’s evidence was that his right hand and arm are now weak. He cannot grip things properly. He cannot flex his wrist and gets immediate pins and needles in his fingers. He has constant loss of feeling around the base of his right thumb.
72 Mr Brearley, Dr Middleton and Mr Berger all accepted that the plaintiff had weakness and sensory changes in his right hand, specifically the right thumb.
73 The plaintiff has trouble lifting. He drops things frequently. He cannot now do the work that requires constant use of his right hand or any lifting or gripping with both hands. This was supported by the evidence of his sister. The plaintiff’s sister, Kristina Chol, provided an affidavit in which she said she noticed the restrictions due to the plaintiff’s injury. She had purchased new lounge chairs recently and while the plaintiff tried to help with the lifting, he was quite restricted, and she saw that he avoided straining his right side. The same applied when they purchased a new television.
74 I accept that the plaintiff has difficulty lifting and this is a consequence I can take into account.
75 The plaintiff’s evidence was that he was a hard worker and had worked all his life in physical jobs. His work was a very important part of his life and part of his social life as well.
76 The evidence was that the plaintiff returned to work promptly after surgery. He has attempted study, passed courses and applied for jobs but has been unsuccessful. He is now working at Colac in the meat industry, performing work that doctors say he should not do. His evidence is the work is causing him pain and swelling of the right forearm. In September 2013, he was off work for three to four days due to the pain.
77 I accept that the loss of his ability to engage in heavy manual work is a significant consequence to this particular plaintiff, given his age of thirty-two years, his work experience and his attempts to obtain alternate employment in Australia.
78 To the plaintiff’s credit, he has attempted to undertake study courses but his history is that he tends to return to labouring work, the only work he can find.
79 The plaintiff’s evidence was that prior to the work injury, he played competitive soccer with a Sudanese community group. Since the injury, he has stopped playing soccer because he tries to protect his right hand and was concerned that he would fall onto his right hand. In cross-examination, he agreed he last played soccer five months ago, but only for five or ten minutes before he stopped. Before the hand injury, he played the full game.
80 The plaintiff said he used to play the drums in a group, but has not played since his injury because of the pain and problems with his right wrist and hand. He said he plays the drums at home for exercise.
81 I accept the plaintiff’s evidence in relation to the consequences of his injury and its effect upon his ability to play soccer and play the drums.
82 The following consequences were not subject to cross-examination; namely, sleep disturbance, the effect of knocking his scarring and his inability to carry his young daughter for longer than short periods. Accordingly, I can accept the plaintiff’s evidence on these consequences.
83 The plaintiff said his sleep is disrupted. If he rolls over onto his right hand or right wrist, the pressure causes pain and he wakes immediately. He has trouble getting back to sleep. He reported sleep disturbances.
84 The scar on his right wrist is raised and obvious. Rubbing of the scar causes immediate pain up his arm.
85 The plaintiff’s evidence is that he has a three-year-old daughter. He is able to pick up his daughter but he can only carry his daughter for short periods of time. Given the medical evidence of Mr Owen and Dr Sutcliffe, I accept that this is a consequence I can take into account.
86 Counsel for the defendant submitted that the plaintiff was able to perform 80 hours of community work, which was manual work at the Buddhist temple and with the Salvation Army, in a short period of time. The plaintiff’s evidence was he cleaned windows, removed graffiti from a wall, painted, put prices on clothes, which he took to the sale room, and swept floors. I accept the work was light manual work, unlike the physical work he has performed since arriving in Australia.
87 Counsel for the defendant submitted the plaintiff has retained the capacity to work, drive, play the drums and play soccer. I accept that the plaintiff can still work; however, the evidence is that the plaintiff has only been able to find jobs labouring in the meat industry, which the plaintiff said requires him to use both hands, and is hard work on occasions. It is work the doctors say he should not be performing because of his work injuries. I accept the plaintiff has attempted to play soccer but only for limited periods of five to ten minutes. I also accept the plaintiff’s evidence that he no longer plays the drums in a group, but plays them at home for exercise. I accept the plaintiff drives a car. Accordingly, I reject the defendant’s submission that the plaintiff has retained the ability to work, play soccer and play the drums. It cannot be said that the plaintiff has retained the capacity to work when the only work he can obtain is work the medical witnesses say he should not be doing. It cannot be said that he has retained the capacity to play soccer and the drums given the very limited involvement he can now have in those activities.
88 For a man of the plaintiff’s age of thirty-two years and language skills, the loss of his ability to engage in unrestricted, heavy manual labour, the only type of work he has performed in Australia, represents a serious injury in terms of the statutory test. Further, he suffers pain, his sleep is disturbed and he can no longer participate in recreational activities of soccer and drumming because of the pain and the fear of exacerbating his pain, consequences which I also consider to be serious.
89 Taking all the evidence into account, I am satisfied that it is fair to describe the pain and suffering consequences of the plaintiff’s right forearm and hand as being “more than significant” or “marked” and properly regarded as “very considerable” when judged by comparison with other cases in the range.
90 In reaching that conclusion, I have made a comparison with other cases in the range of possible impairments. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s134AB(38)(h) of the Act. I am satisfied that the right forearm and hand injury is permanent, given the evidence from all medical witnesses.
91 The plaintiff therefore satisfies the narrative test for pain and suffering.
92 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering in respect to the right forearm and hand is successful.
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