Craig v Kempe Precision Manufacturing Pty Ltd
[2017] VCC 547
•3 May 2017
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-05582
| JAMES ANDREW CRAIG | Plaintiff |
| v | |
| KEMPE PRECISION MANUFACTURING PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 27 April 2017 | |
DATE OF JUDGMENT: | 3 May 2017 | |
CASE MAY BE CITED AS: | Craig v Kempe Precision Manufacturing Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 547 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to right upper limb – consequences of the impairment of function – permanent serious loss of function – pain and suffering consequences – loss of income – restricted duties – alternative employment – stoic
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Sumbul v Melbourne All Toyota Wreckers Pty Ltd [2006] VSCA 292; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: The plaintiff is granted leave to bring a proceeding at common law for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab with Ms R Dal Pra | Slater & Gordon Ltd |
| For the Defendant | Mr A Moulds QC with Ms M Tate | Wisewould Mahony Lawyers |
HIS HONOUR:
1 The plaintiff is a fifty-year-old married man who was injured in the course of, and within the scope of, his employment with the defendant, for whom he worked as a fitter and turner.
2 On or about 5 November 2009, the plaintiff was required to use a hammer to insert dowel pins into steel plates. In the course of doing so, he discovered that the holes in the steel plates were too small, making it difficult to hammer the pins into the holes. Despite complaining to his boss, he was instructed to continue.
3 The plaintiff performed the work just described, holding the hammer in his right hand. In the course of undertaking the hammering work, he commenced experiencing pain in his right arm.
4 The plaintiff contends that he has suffered a serious injury, and he brings his application for serious injury under paragraph (a) of the definition of “serious injury”.
5 The only issue raised for my consideration is whether the impairment of the function of the plaintiff’s right arm has consequences which are “serious”.
6 There was very little in the medical evidence which was controversial. Therefore, I will summarise it briefly.
7 All of the plaintiff’s treatment was directed to his right elbow.
8 The plaintiff saw Dr Yoong, general practitioner, who referred him to have an ultrasound of his right elbow which was undertaken on 9 December 2009. This demonstrated some abnormalities which are addressed by other medical examiners, whose evidence I will refer to below.
9 The plaintiff was referred to have an ultrasound-guided right elbow steroid injection which was undertaken on 15 December 2010 by Dr Ho, physician. He suggested that the plaintiff undergo an autologous blood injection if the steroid injection was of limited benefit.
10 The next treatment obtained by the plaintiff was an autologous blood injection undertaken on 17 March 2010 by Dr English, physician.
11 It would appear that it was in about early 2011 that Dr Brayshaw took over the plaintiff’s treatment. He referred the plaintiff to have an x-ray of his right elbow on 22 March 2011. He referred the plaintiff to have nerve conduction studies on his right lower limb which were undertaken on 5 April 2011 by Professor Gates, physician. He then referred the plaintiff to have an x-ray of his right elbow which was undertaken on 23 February 2016.
12 Dr Brayshaw referred the plaintiff to Mr Pullen, orthopaedic surgeon, who the plaintiff saw on 4 May 2011. He provided a medical report dated 4 May 2011. He was of the opinion that the plaintiff was suffering from right tennis elbow. He discussed surgery as an option, but warned the plaintiff that there was a risk that his condition would worsen with surgery.
13 It would appear that after the plaintiff first had medical treatment, that he was taken from his full-time unrestricted duties and was put on full-time restricted duties. It would appear that he was absent from his employment at some stage, but it is unclear to me when that was and how long that lasted.
14 On 21 August 2014, the plaintiff was made redundant by the defendant. He formed the view that he would not be able to return to his trade, so he applied for alternative employment. He successfully applied for a job as a prison officer, which he commenced in October 2014 on a part-time basis. On 1 August 2016, he was employed full-time as a prison officer.
15 Dr Brayshaw provided four medical reports dated 4 September 2014, 5 September 2014, 23 June 2015 and 17 March 2016. His medical reports are brief, but sufficiently informative to demonstrate that the plaintiff has continued to be troubled by right tennis elbow. It would appear that his real problem is caused by aggravating his right elbow by undertaking provocative movements at the right elbow.
16 Dr Brayshaw certified that the plaintiff was not to undertake work tasks which would aggravate his right elbow, for example no hammering with an extended arm, heavy tool use or lifting over 10 kilograms. These restrictions related to his work with the defendant.
17 Through 2015 and 2016, Dr Brayshaw considered that the plaintiff could work full time as a prison officer, but he needed to avoid activities which would aggravate his right elbow. He considered that the plaintiff should avoid non-working activities which might aggravate his right elbow, for example racquet sports, hammering and even lawn mowing.
18 In relation to treatment, Dr Brayshaw was of the opinion that the plaintiff’s condition was stable, and was unlikely to deteriorate providing the plaintiff was able to avoid undertaking activities which would aggravate his right elbow. He thought it unlikely that the plaintiff would require surgery.
19 It would appear that while under the care of Dr Brayshaw, the plaintiff had other treatment, namely, physiotherapy and acupuncture. He also undertook his own stretching exercises which were described by Mr Eng, who I will refer to below, as pressure point therapy and stretching to deal with the pain he experiences around the lateral epicondyle, radiating down the forearm.
20 The plaintiff was referred to Mr Eng, orthopaedic surgeon, who he saw on 3 March 2016. On examination, he found that the plaintiff was:
“… tender over the lateral epicondyle and over the posterior interosseous nerve. Pressing on the posterior interosseous nerve. Pressing on the posterior interosseous nerve produced some tingling going down the forearm. His resisted middle finger extension was painful.”[1]
[1]Plaintiff’s Court Book (“PCB”) 83
21 Mr Eng considered that the ultrasound showed a small tear, but the other radiology was normal. He considered that the plaintiff was suffering from a tennis elbow injury.
22 Mr Eng considered that the plaintiff was suffering from lateral epicondylitis and radial nerve entrapment. He offered the plaintiff surgery in the form of an arthroscopic examination of his right elbow and open release of the posterior interosseous nerve. The plaintiff declined to have surgery. Otherwise, his opinion relevant to work restrictions and non-work activities are broadly consistent with the opinion of Dr Brayshaw.
23 The plaintiff was examined by a number of medical practitioners on a medico-legal basis, namely:
(i) Mr Kudelka, orthopaedic surgeon, on 17 February 2011;
(ii) Mr Deacon, orthopaedic surgeon, on 7 March 2012;
(iii) Dr Mutton, consultant occupational physician, on 6 January 2015;
(iv) Dr Karna, rheumatologist, on 11 November 2015;
(v) the Medical Panel on 4 July 2016; and
(vi) Mr Jones, orthopaedic surgeon, on 16 March 2017.
24 There is inevitably variation in the histories recorded by these medical practitioners, the results of their examinations, and their opinions. However, they do not appear to me to materially differ from the opinions of Dr Brayshaw, Mr Pullen and Mr Eng. To the extent that there is any such materiality, I prefer the opinions of Dr Brayshaw, Mr Pullen and Mr Eng.
25 I should commence the next part of my reasoning with an assessment of the plaintiff’s creditworthiness and reliability. I found him to be an entirely creditworthy and reliable witness who made every effort to answer questions directly, spontaneously and truthfully. I have no hesitation in accepting his evidence in whole.
26 My conclusions regarding the plaintiff’s creditworthiness and reliability lead me to accept the opinions of the medical practitioners, whose evidence I prefer, and to accept that the plaintiff has suffered a tennis elbow injury which incapacitates him for his pre-injury work and for a variety of non-working activities which I will refer to below.
27 The plaintiff referred to the consequences of the impairment of function of his right upper limb in his affidavit, in histories given to medical practitioners, under cross-examination and re-examination. Of that evidence, the following is what I accept are the consequences of that impairment of function:
· A dull ache during the day which the plaintiff is not conscious about until reminded of its presence.
· Pins and needles which have resulted in him dropping items he is holding, for example a glass. It has not happened often.
· Flare-ups of pain once to twice per week associated with pain through the middle of the back of the arm and down into the wrist, and swelling. The flare-ups can last up to a couple of hours. The swelling can last up to 24 hours or more.
· When a flare-up occurs, the plaintiff performs stretches and massaging of his forearm and uses Ibuprofen to obtain pain relief. After this self-treatment, the flare-up starts to settle down after about 20 minutes.
· Use of Ibuprofen and Panadol for pain relief up to three times a week.
· Sleep is interrupted, and on waking, his right elbow is often stiff and sore in the mornings.
· Loss of his preferred occupation as a fitter and turner which he had undertaken for about thirty years with a consequent loss of income.
· When on light duties with the defendant, he used his left hand more to compensate for his right upper arm disability.
· An inability to utilise his skill as a handyman, for example not being able to complete the renovation of his bathroom in the two months or so he expected to. It took two years. The plaintiff had a history of building a house, fencing, building gardens, a hothouse and undertaking painting. Now, he gardens, but cannot effectively engage in those other activities, for example when he assisted his daughter building a cubby house, he could not use a hammer.
· Limitation on his use of tools, for example a hammer and similar tools requiring operation using his right hand.
· Limitation in his capacity to do something as simple as typing using his right hand.
· An inability to manage the use of his 5-metre fishing boat, for example launching it into the water, removing it from the water and manually cleaning it.
· No longer goes fishing as frequently as he did previously which is something he misses.
· Riding a bicycle because holding the handlebars causes his right forearm and elbow to tighten and swell.
· Limitation on undertaking domestic tasks which require the forceful use of his right arm.
· There are other physical activities which he cannot pursue, such as throwing a ball or a Frisbee, and starting a motor mower using his right hand.
28 Against the consequences which I have just summarised, the plaintiff is otherwise able to work full time as a prison officer, to engage in some levels of activity, for example gardening, riding his motorcycle, and engaging in lighter domestic work.
29 Counsel for the defendant submitted that it is significant that the plaintiff is able to work full time,[2] and is otherwise able to engage in a level of activity which may be moderate and perhaps “considerable”, but not “very considerable” in terms of consequences.
[2]Sumbul v Melbourne All Toyota Wreckers Pty Ltd [2006] VSCA 292
30 Against that is the notion of the plaintiff being a stoic who has put up with the pain and suffering resulting from the impairment of function of his right upper limb who should, therefore, not be treated less favourably than someone of lesser strength of character who resigned himself to his injury.[3] Furthermore, the interference with the plaintiff’s sleep and capacity to undertake manual tasks with his dominant right arm cannot be underestimated as having a dramatic effect upon his functioning in the past, now and probably for the balance of his life.
[3]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
31 In balancing between what the plaintiff has lost when compared to what he has retained in terms of consequences, I am satisfied that what he has retained does not tell against an affirmative conclusion in his favour that the injury to his right upper limb has consequences which are “serious”.
32 It must be remembered that the plaintiff is a relatively young man who no doubt had a significant period of time over which he intended to pursue his chosen trade. That has now been denied, with the additional consequence of a loss of income. He is now unable to engage in a broad range of non-working activities because of the impairment of the function of his right upper limb. It is, after all, his dominant limb and one which he would bring into play in undertaking any significant manual activity. On my survey of the consequences he contends for, it would appear that there is very little that is not affected by the impairment of the function of his right upper limb.
33 In the circumstances, I consider that the plaintiff has suffered a permanent serious loss of function of his right upper limb after having made the relevant comparison with other with like impairments.
34 It is for these reasons that I propose to grant the plaintiff the leave that he seeks.
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