Crotty v Roan Services Pty Ltd
[2009] VCC 98
•4 February 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-00973
| STEPHEN PATRICK CROTTY | Plaintiff |
| v | |
| ROAN SERVICES PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 January 2009 |
| DATE OF JUDGMENT: | 4 February 2009 |
| CASE MAY BE CITED AS: | Crotty v Roan Services Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0098 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – plaintiff suffered injury to his right upper limb – whether the consequences of the impairment caused by the injury were at least very considerable with respect to pain and suffering – plaintiff suffered subsequent injury to his cervical spine with pain affecting the function of the left arm and hand – need to separately identify the injury to the right upper limb and its consequences – Dressing v Porter [2006] VSCA 215: section 134AB (38)(c).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O'Dwyer SC | Grando & Breheny |
| Mr J Goldberg | ||
| For the Defendant | Mr I Gourlay | Herbert Geer |
| HIS HONOUR: |
1 Before the Court is an application brought by Originating Motion filed on 13 March 2008 by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the defendant on 12 May 2004.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering.
3 Mr P O'Dwyer SC appeared with Mr J Goldberg of counsel for the plaintiff, and Mr I Gourlay of counsel appeared for the defendant.
4 The body function which the plaintiff says has been lost or impaired is the right upper limb.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined •
The plaintiff tendered his Court Book (“PCB”) pages 26-60; 63-66 and 68-73: Exhibit A
• The defendant tendered:
ƒ video film taken of the plaintiff on 27 November 2008: Exhibit 1 ƒ the Defendant's Court Book (“DCB”) pages 13-18 and 30-39:
Exhibit 2
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 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 the course of his employment on or after 20 October 1999.[1]
(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]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities under subsection (19)(a).
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged 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)
Subsection (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)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(g)
In conformity with Barwon Spinners, 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 subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(h)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[3]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] (1994) 1 VR 436
8 I am required by section 134AE 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 and the Incident
9 The plaintiff was born on 3 January 1967. He is now forty-two years of age. He is a single man. He is right-hand dominant.
10 The plaintiff was born in Traralgon in the Latrobe Valley. He completed his secondary schooling at Parade College in Bundoora in 1984, completing Year 12.
11 The plaintiff does not have any formal education, training or qualifications. He has engaged in some training courses for the position which he presently occupies with ‘Close the Loop Recyclers’ as a foreman. Prior to commencing employment with the defendant in April 2004 as a labourer and sorter’ he worked for Australia Post from 1985 to 2002 and then in self-employment as a window cleaner from 2002 to 2003.
12 On 12 May 2004, the plaintiff was walking past a baling machine when the large metal door fitted to the machine flew open with the result that the handle on the door struck him a forceful blow on his right wrist and hand.[4]
[4] PCB 28
The Plaintiff's Injury and Medical Treatment
13 The plaintiff was immediately aware of severe pain in his right wrist and hand. After reporting the incident to the defendant he drove himself to the Greensborough Road Surgery when he saw Dr Rattray-Wood, general practitioner.
14 Dr Rattray-Wood examined the plaintiff, noting him to be in severe pain with a deformed right wrist. He applied a plaster splint and bandage and told the plaintiff to go to the Northern Hospital Accident and Emergency Department, which is what the plaintiff did.[5]
[5] PCB 49
15 An x-ray was taken at the hospital on 12 May 2004 which showed the following:
"A transverse intra articular fracture of the radial styloid process. Mild posterior displacement of the distal fracture fragment is seen. Minimally displaced fracture of the ulnar styloid process is also seen."[6]
[6] PCB 34
16 Subsequently, a CT scan was taken at the hospital on 14 May 2004 which showed the following:
"Comminuted distal radial fracture with the dorsal angulation and dorsal displacement of the lunate with respect to the radius. Widening of the ventral distal radial ulnar joint space associated with an impaction fracture of the dorso-medial corner of the distal radius."[7]
[7] PCB 34
17 As a result of the appearances on the CT scan, the plaintiff underwent surgery. The nature of the surgery was as follows:
"On 14/05/04, under general anaesthesia and intravenous antibiotics, there was an open reduction and internal fixation of the fracture with a TriMed fixation, with a radial pin plate and two wires and two screws, and an ulnar pin plate dorsally with two K-wires and two screws. Bone substitutes injected and ulnar comminuted fragment suture on to the plate. This was all done under image intensifier control."[8]
[8] PCB 34
18 On 15 May 2004, a further x-ray was taken which showed that the fracture fragments were maintained in near anatomic alignment. The plaintiff was discharged from the hospital on 16 May 2004.
19 The plaintiff was reviewed on 27 May 2004, 29 June 2004 and 31 August 2004. On the latter two occasions further x-rays were taken showing minimal displacement.[9]
[9] PCB 35
20 The plaintiff subsequently attended for hand therapy on sixteen occasions between 1 June 2004 and 6 January 2005. He was last reviewed at the hospital on 3 February 2005.[10]
[10] PCB 35
21 Dr Rattray-Wood referred the plaintiff to Mr Khan, orthopaedic surgeon, who first saw the plaintiff on 21 October 2004. It would appear that Mr Khan referred the plaintiff to have a further x-ray on that day. Mr Khan reviewed the plaintiff on 10 February 2005 and 30 June 2005. Mr Khan then referred the plaintiff to Mr Berger, orthopaedic surgeon, who specialises in hand surgery.[11]
[11] PCB 36-43
22 Mr Berger first saw the plaintiff on 20 July 2005.[12] He noted that the plaintiff's right wrist movements were quite restricted. Mr Berger had available for his inspection the pre-operative x-ray and a CT scan. He advised the plaintiff to undergo further surgery to remove the internal fixation plates and to also undergo a tenolysis and contracture release in an attempt to improve the plaintiff's wrist movement.
[12] PCB 45-46
23 The plaintiff underwent surgery on 11 August 2005. Post-operatively the plaintiff's extension and flexion of his right west were increased to 50 degrees. Mr Berger referred the plaintiff for further hand therapy.
24 Mr Berger re-examined the plaintiff at the request of the plaintiff's solicitors on 2 April 2007.[13] On examination, Mr Berger noted that the plaintiff's right wrist movements were limited and that his grip strength was 65 pounds on the right side and 95 pounds on the left side. After obtaining a history from the plaintiff and conducting an examination of him, Mr Berger said the following:
"Mr Crotty has particular difficulties with work and recreational activities due to the restricted movement in his right wrist. As mentioned above, he has had to modify his approach to various activities taking into account his restricted movement. He is able to perform everything he is required to do at work but with some difficulties. He has also had to stop a number of his sporting activities due to the restricted movement."[14]
[13] PCB 47-48
[14] PCB 48
25 Mr Khan re-examined the plaintiff at the request of the plaintiff's solicitors on 26 March 2007. On examination, Mr Khan noted that the plaintiff’s right wrist movements were limited and that his grip strength was 35 kilograms on the right side and 42 kilograms on the left side. In a lengthy report in which he referred to each of the occasions he examined the plaintiff, Mr Khan said the following:
"This man has been told, not only by his initial treating surgeon at the hospital but also by me and his other treating doctors as far as I know, that he has sustained a fairly severe injury to the right wrist. However, he has received adequate treatment to the right hand and wrist. As a result of this he has regained partial function of the right wrist. However, he is still considerably disabled on account of the pain, stiffness and limitation of function of the right wrist and hand.
As a result of this he has been left with partial/permanent impairment of function of the right wrist in relation to the above injuries.
The long-term prognosis, as mentioned above, is guarded and he is likely to develop post-traumatic arthritis affecting the right wrist and inferior radioulnar joint, and he may require in the long run further surgery to the wrist as indicated by me in the paragraphs above."[15]
[15] PCB 43
26 The reference to further surgery indicated earlier in his report is a reference to his opinion that the plaintiff's long-term prognosis was guarded and that he was likely to develop post-traumatic arthritis in his right wrist for which he might require further surgery.[16]
[16] PCB 42
27 The plaintiff has not had any medical treatment for a considerable period of time. The last treatment the plaintiff had was hand therapy following the episode of surgery undertaken by Mr Berger.[17]
[17] Transcript 38
The Medical Evidence
28 Mr Weaver, orthopaedic surgeon, examined the plaintiff on 10 November 2008 on a medico-legal basis.[18] He obtained a full history from the plaintiff of his injury and the treatment he had undergone. On examination, Mr Weaver noted that the plaintiff's right wrist movements were limited. He also noted on examination that the plaintiff had suffered an injury to his cervical spine, which I will deal with separately because of the submission made by Mr Gourlay of the importance of that injury when making a judgment whether the consequences of the impairment of the function of the plaintiff right upper limb is serious.
[18] PCB 55-60
29 In the context of the plaintiff suffering an injury to his cervical spine with pain affecting his left shoulder, arm and hand, Mr Weaver found that the plaintiff's grip strength on the right side was better than the left side.[19]
[19] PCB 57. Not a finding made by any other medical practitioner
30 In summary, Mr Weaver then said the following:
"He was able to resume his pre injury employment, but he has been complaining, ever since, of certain difficulties associated with the undertaking both employment and recreational activities. His complaints in this regard are believed to be valid. Certainly, clinical examination confirmed a moderate persisting partial loss of movements within both the right forearm and wrist.
By this late stage, 4½ years following the original accident, there is not much expectation that further treatment of any kind is going to make a difference to his situation. Although Mr Crotty is capable of undertaking a wide range of employment activities, it is again accepted that he has incurred a partial impairment of right upper limb function overall, as a direct consequence of the May 2004 injury."[20]
[20] PCB 60. Mr Weaver took a history of the plaintiff’s recreational activities comprised boxing and playing golf
31 Dr Karna, rheumatologist, examined the plaintiff on 5 September 2007 on a medico-legal basis. He obtained a reasonable history of the treatment the plaintiff had undergone. On examination, Dr Karna noted that the range of movement of the plaintiff’s right wrist was considerably restricted and that his grip strength on the right side was reduced by one-third. He noted that the plaintiff’s pincer grip was normal.[21]
[21] PCB 69
32 The Dr Karna did not express an opinion relevant to the degree of impairment caused by the injury to the plaintiff’s right wrist. He was asked to assess the plaintiff's whole person impairment which is irrelevant to a proceeding of this kind.[22]
[22] PCB 70
33 Mr Stapleton, plastic and hand surgeon, examined the plaintiff for the defendant on 17 December 2007[23] and 24 November 2008.[24] He obtained a reasonable history of the treatment the plaintiff had undergone. On examination, Mr Stapleton noted that the range of movement of the plaintiff's right wrist was diminished, as was his grip strength, however, he did not measure the loss of grip strength as other medical practitioners had done.
[23] DCB 13-15
[24] DCB 16-18
34 After examining the plaintiff on the second occasion, Mr Stapleton then said the following:
"The long-term prognosis cannot be determined with accuracy in that the injury clearly has impacted into the wrist joint and he may, as the years go by, suffer from a decreased range of movement because of progressive osteoarthritis which will be a direct result from the trauma noted above."
35 He then added:
"(a)
The injury has affected his employment capacity in general terms. That is meant to indicate that he could not, for example, be employed in an unrestricted way as a labourer. Window cleaning would be a problem for him in that it is his dominant hand that has been affected. In that sense he has an ideal job now as a supervisor where he can determine what he can and cannot do.
(b)
He will, in my view, never be fit for so-called pre-injury employment."
The Cervical Spine Injury
36 Before turning to whether the consequences of the impairment of function of the injury to the upper right limb is serious, it is necessary to assess the injury which the plaintiff suffered to his cervical spine.
37 In about mid September 2007, the plaintiff was loading a truck. He experienced soreness and an aching discomfort in his neck and left shoulder. Over time his symptoms became more troublesome. He saw Dr Vivarini, general practitioner, and then Dr Rattray-Wood.
38 Mr Weaver paid particular attention to the cervical spine when he examined the plaintiff on 10 November 2008. He noted that the plaintiff demonstrated good movement generally. He also noted some evidence of wasting of muscles of the left shoulder girdle and then observed that, despite that finding, the plaintiff demonstrated good shoulder movements bilaterally. He considered that the plaintiff's left upper limb symptoms were a response to some cervical disc pathology.[25]
[25] PCB 57-58
39 The defendant referred the plaintiff to Associate Professor Balla, neurologist, to assess the injury suffered by the plaintiff to his cervical spine. He examined the plaintiff on a medico-legal basis in October 2008. [26]
[26] DCB 35-39
40 Associate Professor Balla obtained a history from the plaintiff that he had a couple of days off after he injured his cervical spine and then returned to work. On examination, he noted weakness at C3-4 and on movement of the left shoulder and arm with an inability to extend his fingers, and with marked weakness on extension of his thumb.
41 Associate Professor Balla was of the opinion that the very severe motor involvement which he found on examination was unusual and considered that it was possible that there had been inflammation of nerve roots in the cervical spine at C6-7 arising from a disc prolapse. He considered that it was reasonable for the plaintiff to think in terms of surgery to ameliorate the condition in his cervical spine.[27]
[27] DCB 37-39
42 The plaintiff gave evidence that he did not pay much attention to the injury to his cervical spine early on, thinking it would improve, however it worsened and he went and saw a medical practitioner in February 2008.[28]
[28] Transcript 24-25
43 The plaintiff also gave evidence that he has seen two neurologists and a neurosurgeon concerning his cervical spine. He will return to see Dr Jeffrey, neurologist, to make a decision concerning the treatment he should pursue for his cervical spine. The plaintiff said that there are two possibilities that he faces: one being to do nothing and the other to pursue a surgical option.[29]
[29] Transcript 25-26
44 The plaintiff also gave evidence that he is able to move his cervical spine and left arm with the problem being a loss of strength in his left arm and a problem with flexion of his left wrist and pins and needles in his left thumb, however, those problems are not presently causing him any difficulty with the work he is doing with his present employer, however, he said he cannot do everything at work and gave an example that when the problems he experiences in his cervical spine are severe he cannot drive a forklift or lift heavy bags.[30]
[30] Transcript 26-27
Serious Injury or Not
45 Mr Gourlay submitted that the issues which arise for my consideration in this proceeding are whether the consequences presently experienced by the plaintiff arising from the impairment of the function of his right upper limb and his cervical spine required disentangling, and ultimately whether the consequences to the plaintiff are serious.
46 Mr Gourlay took no issue with the fact that the plaintiff did suffer an injury which impairs the function of the plaintiff's right upper limb and that the impairment is permanent and has consequences for the plaintiff, but that the consequences are not serious. Mr Gourlay made no attack of any significance on the plaintiff's credit.
47 The plaintiff swore two affidavits on 1 November 2007[31] and 9 December 2008.
[31] PCB 26-33
48 Mr O'Dwyer submitted that the consequences to the plaintiff arising from the impairment of function of his right upper limb are well summarised in the second of the two affidavits. He referred me particularly to paragraphs 3-9 of that affidavit:
"3
I continue to experience aching pain and discomfort in the right wrist and hand. The pain and discomfort occurs frequently, and from time to time is quite severe. The severity of the pain and discomfort varies significantly according to my activities. At times, the pain and discomfort can come on for no reason I can point to. Further, the changes in the weather seem to affect the level of pain and discomfort experience in my right wrist and hand.
4
I experience discomfort and pain at the junction of my right hand, at and around the base of the lower forearm and in and around the right wrist. Further, I experience swelling in the areas described, the severity of which varies, and according to my activities. The movement of my right wrist and hand is reduced. The movement of my right forearm and hand is also reduced. This loss of movement affects the strength in my right hand and arm, and make[s] some manual activities more difficult for me.
5
As a result, I experience difficulty performing many tasks, especially tasks which require me to make and sustain an awkward grip, or to make and sustain a strong grip over a period of time. I have difficulty picking up heavy items, or performing tasks which require me to sustain a strong grip, for example lifting and carrying moderate or heavy weights, all when performing rapid repetitive movements of the right hand and arm.
6
Currently, I am employed as a Labourer/Machine Operator and Team Leader. I am able to cope with my work however at the end of working day, I experience aching discomfort in and around the right wrist and hand. Also, when doing heavy work or a lot of manual tasks or activities, the symptoms recur. The severity of these symptoms are worse in cold weather.
…. 9
… the injury to my right wrist and hand is a significant disability for me, given the and naturally right-handed, and work in physical manual type work."[32]
[32] PCB 64-66. The matters deposed to by the plaintiff regarding the consequences to him of the impairment of function of his right upper limb quoted above much the same as he deposed to in his first affidavit, but in more detail
49 In his first affidavit the plaintiff referred to domestic and recreational activities which are affected by the injury to his right upper limb, namely boxing training, golf and gardening.[33]
[33] PCB 31
50 The plaintiff gave evidence that he has been involved in boxing since he was about sixteen years of age. At around the time when he injured his right upper limb he used a speed ball and heavy bag in his boxing training.[34] He used a speed ball to train every day and the heavy bag, at most, once a week.[35] The plaintiff is no longer able to engage in any level of boxing training.
[34] Transcript 12 and 28
[35] Transcript 29
51 The plaintiff played golf occasionally. He had his own set of golf clubs. He estimated that he had played about five times prior to suffering injury to his right upper limb. He said he has tried to grip and swing a club, but he has not played.[36]
[36] Transcript 36-37
52 The plaintiff gave evidence that he assisted with football coaching with the South Morang Football Club from about January 2003. He attended for about one and a half hours twice per week. He gave the players instruction using a speed ball and took some training drills. He said he was unable to involve himself in tackling or instruction in kicking after he injured his right upper limb. He said that because of the diminished range of movement of his right wrist he could not mark a football or hold a football in the correct position in order to kick a football effectively.[37]
[37] Transcript 29-31
53 The plaintiff gave evidence that he does some gardening which seems to be limited to mowing his lawns. He said that he takes to the garden when the weeds are high, and when he mows the lawns he is “buggered” for a couple of days afterwards, and in that connection he was referring to the impact upon his right upper limb. His gardening used to involve keeping a lot of pot plants, but he experienced problems lifting the pots.[38]
[38] Transcript 39
54 The plaintiff also gave evidence that he is able to use tools such as screwdrivers and spanners, but his use of them is limited because of the onset of pain, and he also said that the same occurs when he engages in window cleaning, which was the subject of a short film shown by the defendant in which the plaintiff was cleaning the windows of a real estate agent’s business premises on 27 November 2008.[39]
[39] Transcript 38-39
55 It is convenient to turn to the film taken of the plaintiff. I watched the film closely and observed the plaintiff to commence cleaning the windows of the real estate agent’s business premises at about 2:16 pm and over a period of just under half an hour. He used a small stepladder and what appeared to be two squeegees and a towel as the only equipment involved. He repeatedly drew the squeegees in a downward motion, no doubt to remove the thin film of water from the windows and on a few occasions he drew the squeegees in a crossways motion.[40]
[40] Exhibit 1
56 Mr Gourlay submitted that the consequences of the right upper limb injury and the cervical injury are entangled, requiring the plaintiff to disentangle those consequences and demonstrate what consequences flow from the injury to the right upper limb.
57 I reject that submission. The body functions affected by the right upper limb injury and the cervical injury are quite separate and distinct. The only point at which the cervical injury might impact upon the function of the plaintiff's right upper limb is when the plaintiff has engaged in bilateral manual function where the weakness in his left arm and the physical problems diagnosed by Associate Professor Balla, which I have summarised in paragraph 40 above, might come into play.
58 It is certainly no novel concept that a worker may suffer multiple injuries, two or more of which might qualify as a serious injury, nor is it uncommon to see that a worker has suffered an injury and at some later date suffers either an aggravation of it or a separate injury. The mere fact that there are two injuries, both of which might qualify as a serious injury, does not call for any disentangling unless the two injuries and the impairment caused by them contribute to the same consequences.
59 For example, if the plaintiff subsequently suffered an injury to his right shoulder then the right shoulder would lead to an impairment of the function of his right upper limb and would contribute to a worsening of the very same consequences which flowed from the injury to his forearm and wrist. Disentangling would be called for in those circumstances, but not in this situation.
60 Mr O'Dwyer referred me to Dressing v Porter[41] where Ashley JA dealt with a similar situation and observed:
"… What his Honour had to do was to decide what symptoms afflicted the appellant in consequence of his compensable injury, and with what effect. If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also satisfy the test by reason of its pain and suffering consequences. His Honour's reasons rather suggest that he approached the matter on the footing that there must only be one condition which could satisfy the test."
[41] [2006] VSCA 215, at paragraph 47
61 Therefore, the task that I must perform is to ask whether the pain and suffering consequences of the plaintiff's injury to his right upper limb meet the serious injury test despite the existence of the cervical injury and the fact that the consequences of it might also satisfy the serious injury test.
62 I now turn to the question whether the consequences to the plaintiff of the impairment of the function of his right upper limb are serious.
63 The plaintiff struck me as being a very candid witness whose evidence was not seriously challenged on any aspect, save that the consequences are not serious. Therefore, I see no impediment to me accepting the plaintiff's evidence in his affidavits and given orally.
64 The plaintiff is a relatively young man. He is now forty-two years of age. He suffered a very nasty injury to the lower part of his right arm, evidenced by the pre-operative x-rays which I have summarised in paragraphs 15-17 above. The post-operative x-rays show that the bone fragments were anatomically aligned, but with some displacement.
65 The plaintiff has been left with what I consider to be a significant restriction in the movement of his right wrist. There was debate between Mr O'Dwyer and Mr Gourlay concerning the loss of range of movement recorded by the examining medical practitioners, and the conclusions to be reached from the witness box demonstration made by the plaintiff of his ability to move his wrist freely.
66 I watched the plaintiff's witness box demonstration closely. I mimicked the movements he performed and was able to move my own wrist through a significantly greater range of movement than he was capable of doing. I estimated that the loss of overall range of movement was about 40 to 50 per cent. Mr O'Dwyer submitted that it was more like 50 per cent, and rather than use a percentage, Mr Gourlay submitted that it was more like a one-third loss.
67 Much of Mr Gourlay's submissions were directed to what the plaintiff is capable of doing without losing sight of the fact that I must measure what he has lost as a consequence of the impairment of the function of his right upper limb. Mr Gourlay referred me to Dwyer v Calco Timbers Pty Ltd (No 2)[42] and to the submissions made by counsel who acted for the respondent which were dealt with seriatim by Ashley JA.[43]
[42] [2008] VSCA 260
[43] Paragraph 20 -27
68 I will deal with these submissions made by Mr Gourlay and his reliance on the submissions of counsel for the respondent.
69 The plaintiff has made a recovery from the very nasty fractures which he suffered to the lower part of his right forearm and wrist, and it is true that he is not having any medical treatment, but against that he has a permanent level of significant restriction of movement of his right upper limb and levels of pain each day which vary.
70 The plaintiff is obviously able to work. He returned to his employment which came to an end due to alleged misconduct on his part, but he then obtained work with his present employer which he has been able to maintain. Initially he returned to labouring work with both employers, but is now a foreman doing very little manual work. He is also able to do periodic work as a window cleaner once a month, as was shown on the film.
71 Mr O'Dwyer submitted that the plaintiff is a classic stoic, and he drew on the observations made by Nettle JA in Dwyer (supra) that it would be wrong that where a worker has been prepared to put up with his pain and suffering he would be treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.[44] He submitted that it is in that context that I should accept the plaintiff has not only being a candid witness prepared to concede that he has residual function in his right upper limb and is able to work, but he is the sort of man he would do his best to return to work in spite of significant difficulties.
[44] Paragraph 3
72 I accept that the plaintiff is something of a stoic. I accept that he returned to work because he is very well motivated and that he was not prepared to be held down by his injury. Of course, when the plaintiff returned to work and he was doing manual work he had a good left arm on which he was able to rely, no doubt making his return to manual work realistic in terms of the demands it made of him.
73 I accept the opinion of Mr Khan, that it is likely that the plaintiff will develop post-traumatic arthritis affecting the right wrist and inferior radioulnar joint, and that he may require further surgery. It occurs to me that Mr Khan has provided a lengthy report in which he has analysed the plaintiff's progress in considerable detail for the purpose of understanding the nature and extent of the injury. That puts him in the best position to evaluate the risk to the plaintiff of suffering post-traumatic arthritis. His opinion is confirmed by Mr Stapleton, although Mr Stapleton was of the opinion that the prospect of the risk occurring was less likely.
74 Lastly, I adopt the approach made by Ashley JA that the significance of what has been lost by a worker may be informed to an extent by what is retained. However, against what has been retained is the loss of 40 to 50 per cent of the overall movement of his right wrist. He has levels of pain every day which vary. He cannot engage in boxing training, football training or golf.
75 Boxing training was something which was a major feature of the plaintiff's recreational activities, and it would appear that football training became something of importance to him from 2003. As to the submission made by Mr Gourlay that the plaintiff was not playing much golf, and therefore golf should be consigned to a matter of insignificance, the fact remains that he cannot play golf because of his significantly diminished capacity to move his right wrist freely
76 It is clear enough to me, after analysing the evidence of the plaintiff, the medical evidence and the film that the plaintiff has suffered a permanent impairment of the function of his right upper limb. He has pain which runs from his elbow down the underside of his right forearm into his right wrist with pain on both sides of his wrist. His ability to move his wrist freely is significantly diminished and permanently so, and his grip strength is also significantly diminished based upon the opinions of Mr Khan, Mr Berger, Dr Karna and Mr Stapleton. It is likely that he will suffer a deterioration in his right wrist as a result of the onset of post-traumatic arthritis and may require further surgery. He is unable to engage in the activities of a recreational nature which were undoubtedly important to him and which he undoubtedly enjoyed. He is also unable to do simple straightforward activities such as gardening without difficulty. He is otherwise affected in nearly every manual operation he involves himself in when he uses his right wrist and hand, although the extent of the problems he encounters vary depending on what he does and the effort he puts in.
77 I do not accept the fact that the plaintiff is able to work and can do window cleaning once a month for one client, and the fact that he has otherwise been able to do to get on with his life vocationally is an answer to the very real deficits of which the plaintiff complains. As Ashley JA put it in Dwyer (supra) that is part of the story but only a part of it.[45]
[45] Paragraph 28
78 The plaintiff's situation is made all the more difficult for him as a result of the onset of the cervical injury and the loss of function in his left arm. It occurs to me that the plaintiff had significant difficulties with the function of his right upper limb. However, he could rely on his good left arm. Now that he no longer has a reliable and strong left arm inevitably makes the consequences the impairment of the function of his dominant right upper limb more troublesome.
79 Therefore, on the basis of the foregoing analysis, I find that the plaintiff suffered an injury to his right upper limb which has permanently impaired the function of his right upper limb, and that the consequences of that impairment deserves the description of "at the least very considerable", and I make that finding after having made the relevant comparison as I have described it in my discussion of the statutory scheme.
Conclusion
80 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 to recover damages for bodily injuries for pain and suffering arising out of his employment with the defendant on 12 May 2004.
81 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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