Deng v Pindarri Poultry Pty Ltd
[2024] VCC 115
•23 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-22-04876
| ALUET DENG DENG | Plaintiff |
| v | |
| PINDARRI POULTRY PTY LTD (ABN 79 168 557 524) | Defendant |
---
JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 November 2023 | |
DATE OF JUDGMENT: | 23 February 2024 | |
CASE MAY BE CITED AS: | Deng v Pindarri Poultry Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 115 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering claim – bilateral upper limb injuries
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Zlateska v Consolidated Cleaning Services Pty Ltd [2006] VSCA 141; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; TB SMS Pty Ltd v Reading [2020] VSCA 203; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
Judgment: Application granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I McDonald KC with Ms S Bailey | Ryan Carlisle Thomas |
| For the Defendant | Mr M Clarke | Wisewould Mahony |
HER HONOUR:
Introduction
1The plaintiff, Aluet Deng, seeks leave pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring common law proceedings for pain and suffering damages as a result of bilateral carpal tunnel injuries to her left upper limb and right upper limb (“the injuries”).
2Ms Deng asserts that her injuries occurred over the course of her employment with the defendant, Pindarri Poultry Pty Ltd, whilst hanging, gutting and packing chicken carcasses.
3At the hearing, Mr Ian McDonald KC and Ms Simone Bailey appeared on behalf of Ms Deng and Mr Michael Clarke appeared on behalf of the defendant.
4I have considered all the tendered evidence, Ms Deng’s oral evidence and the submissions of Counsel, but I shall only refer to the materials to the extent necessary in these reasons.
5For the reasons that follow, I grant leave to issue proceedings for pain and suffering damages.
What are the issues in dispute?
6The legal principles are well known and not in dispute in this case.
7In order to succeed, Ms Deng must prove on the balance of probabilities that:
(a) the injuries arose out of or in the course of her employment or were due to the nature of her employment with the defendant;
(b) the injuries with their resulting impairment must be “permanent”; that is, permanent in the sense that they are “likely to last for foreseeable future”;[1]
(c) the consequences of the injuries to the plaintiff in relation to pain and suffering must be “serious”; that is, when judged by comparison with other cases, in the range of possible impairments, they can be fairly described as being more than significant or marked, and as being at least very considerable.[2]
[1] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [33]
[2] Section 325(2)(b) and s325(2)(c) of the Act
8The defendant did not dispute that Ms Deng had sustained injury to her left and right upper limbs, namely bilateral carpal tunnel, whilst working for it.
9The defendant identified two areas of dispute:
· whether Ms Deng’s impairment consequences are related to her employment; and
· range; that is, when compared with other cases, in the range of possible impairments, they can be fairly described as being more than significant or marked, and as being at least very considerable.
10The parties made submissions as to Ms Deng’s credibility and reliability.
Background
11Ms Deng is forty-nine years old. She was born in South Sudan and speaks Dinka, Arabic and English. She completed Year 11. Ms Deng did not work whilst in South Sudan. In 1999, aged twenty-three, Ms Deng moved to Egypt as a refugee. In Egypt, she worked as a housekeeper and cook. In October 2004, aged twenty-eight, she arrived in Australia.
12Ms Deng separated from her husband in 2019. She currently resides in a residential suburb of Geelong with five of her nine children.
13Ms Deng has the responsibility of raising a large family and she has worked hard to provide for them.
Onset of injury and treatment
14In approximately 2009 or early 2010, Ms Deng started working for Davis Poultry on a casual basis on full-time hours, with some overtime. Ms Deng alleges her duties involved a lot of heavy, awkward and repetitive manual handling.
15In her second affidavit, Ms Deng says she experienced the onset of pain, numbing and tingling in her right and left hand/wrist area in 2010, about four to five weeks after starting work at Davis Poultry.[3]
[3] Transcript (“T”) 30, L24-31 – T31, L1-13
16Nerve conduction studies were performed which demonstrated mild carpal tunnel syndrome on the right side.
17Ms Deng said the symptoms gradually resolved and she did not require time off work. She left Davis Poultry in late 2011, or early 2012, when pregnant with her sixth child.[4]
[4] Plaintiff’s Exhibit P1, PCB 22, paragraph [5]
18Apart from a short time in 2015 when she worked as a self-employed child minder at her home, Ms Deng was unemployed for a number of years.
19In 2017, Ms Deng returned to work at the same chicken factory, which had been taken over by the defendant.[5] She performed the same duties as previously. Ms Deng said she was often required to work under time pressure and took limited breaks, due to staffing issues, machinery breakdowns and performance targets.
[5] Plaintiff’s Exhibit P1, PCB 22, paragraph [4]
20Ms Deng experienced a gradual onset of pain in her wrists over the course of her employment with the defendant. She said the pain first became significant in approximately June 2018. Ms Deng continued working for financial reasons but her symptoms worsened. She ceased work in December 2018 because of her wrist pain.
21Ms Deng lodged a WorkCover claim for “bilateral carpal tunnel both hands & wrists” due to “repetitive work - degutting and hanging chickens”. The claim was accepted.
22Further nerve conduction tests of both wrists in October 2019 confirmed bilateral carpal tunnel syndrome. She underwent a right carpal tunnel release operation on 18 July 2019 and left carpal tunnel release operation on 19 September 2019.
Post-injury employment
23After ceasing work with the defendant, Ms Deng remained unemployed for a period of time. She then obtained a Certificate III in Individual Support (Aged Care) with the assistance of the occupational rehabilitation provider, Nabenet.
24Ms Deng is not work shy. She has had at least six jobs since early 2021:
· In April 2021, she secured work as a cleaner on the Bellarine Peninsula working approximately eighteen hours per week, cleaning holiday homes. Ms Deng ceased that work as it aggravated her pain.[6]
· In October 2021, Ms Deng began casual work in a factory packing alcohol for approximately thirty hours per week.[7] Ms Deng ceased after two months as the cold environment and repetitive lifting and pushing worsened her wrist symptoms.[8]
· She did some casual work as a community care worker and then worked for short periods as a COVID marshal and Uber Eats delivery driver.
· In May 2022, Ms Deng commenced with Deakin University as a part-time cleaner, working four hours a day, five days a week, starting at 3.00am. At the time of the hearing, she was still working in this position.
[6] Plaintiff’s Exhibit P1, PCB 13, paragraph [15]
[7] Plaintiff’s Exhibit P1, PCB 25, paragraph [19]
[8] Plaintiff’s Exhibit P1, PCB 18, paragraph [15]
25Ms Deng said her current duties are lighter than her other post-injury jobs but that she continued to struggle in the role. She often experienced an aggravation of the pain in her wrists, particularly in her right dominant hand, after having to lift or pull something heavy at work.
Unrelated health conditions
26Ms Deng is blind in her right eye as a result of a childhood injury. In February 2023, she underwent an operation to her right eye to prevent the condition from worsening. In 2016, Ms Deng experienced some pain in her right shoulder which resolved.
27There was no evidence to suggest these conditions currently impact upon Ms Deng’s daily activities or her capacity to work.
The hearing
28The application proceeded in the usual way.
29Ms Deng tendered affidavits, medical reports, medico-legal reports, extracts of clinical records, nerve conduction studies, various documents relating to her WorkCover claim and letters of instruction from her solicitors to independent medical examiner, Mr John Crock. The defendant tendered medico-legal reports.
30Ms Deng was the only witness who gave viva voce evidence and was cross-examined.
Ms Deng’s evidence
31Ms Deng relied upon four affidavits: an affidavit sworn on 4 July 2022, an affidavit sworn on 11 July 2023, an affidavit affirmed on 21 July 2023 and an affidavit sworn on 5 October 2023.[9]
[9] Plaintiff’s Exhibit P1, PCB 10-26 and 141-142
32Ms Deng’s second affidavit confirmed that her English skills were not very good. Despite this, no interpreter was used for the purposes of Ms Deng affirming her affidavits.
33An interpreter attended the hearing, but Senior Counsel informed the Court that Ms Deng would give her evidence in English to the extent she could and would use the interpreter as a “back-up” only,[10] which is what occurred.
[10] T29, L 22-25
34In her four affidavits, Ms Deng complained of worsening symptoms including:
· Ongoing pain and restricted movement in both hands and wrists, worse in the right limb;
· Numbness, weakness, cramping and pins and needles in her fingers and hands, particularly bad in the morning;
· Disrupted sleep;
· Pain in the shoulders and forearms, worse in the right limb;
· Poor grip strength; and
· Difficulties with:
-domestic duties, including cooking and grocery shopping;
-self-care and braiding her children’s hair;
-driving long distances and holding the petrol pump;
-writing and using a computer;
-engaging with her children and teaching them how to cook, clean and live an active life.
35In her first affidavit, Ms Deng deposed that:
“I was quite active before my injury, and I enjoyed going to the gym and I also did things such as push-ups to keep fit. I enjoyed working on my fitness. I am no longer able to do push-ups or go to the gym, as I find it too painful.”[11]
[11]Plaintiff Exhibit P1, PCB 14, paragraph [23]
36In her third affidavit, Ms Deng said:
“I refer to paragraph 23 my first affidavit. I have returned to the gym on occasion but when I do go, I continue to be very restricted in terms of what training I can do. I no longer do exercises that put weight or pressure on my hands. Nor do I use equipment which requires grip strength.”[12]
[12]Plaintiff Exhibit P1, PCB 25, paragraph [20]
37In her evidence-in-chief, Ms Deng confirmed that she had re-read her affidavits and that other than a minor correction to the residential address recorded in the first and second affidavits, there were no other corrections required and the contents were true and correct.[13]
[13] T46, L19-25
38The following salient points emerged in cross-examination:
· Ms Deng was not currently going to the gym;
· Ms Deng was not entirely sure when she last attended the gym but thought it may have been three years ago or before she commenced work with the defendant; and
· Ms Deng took two Panadol and one Nurofen each morning and night, as well as an anti-depressant in the evening;
· Ms Deng was not having any current treatment for her hands.
Was Ms Deng a credible or reliable witness?
39The cross-examination was relatively short but it contained a targeted attack on Ms Deng’s credibility and reliability.
40The defendant submitted Ms Deng’s affidavits gave the impression she was a keen gym attendee prior to the injury and that post-injury she was prevented from continuing to attend. The defendant submitted this was clearly contradicted by her viva voce evidence.
41The defendant submitted, at a minimum, the Court should not accept her evidence regarding her inability to attend or carry out certain activities when at the gym. Alternatively, the defendant submitted Ms Deng’s credibility was impugned overall and the Court should not accept any of her evidence regarding her impairment consequences.
42The plaintiff submitted Ms Deng relied upon four affidavits, some of which were quite lengthy, and that her overall credibility had not been impugned. The plaintiff conceded Ms Deng’s affidavits were not accurate in relation to her gym attendance but submitted this inaccuracy was “one drop of water in a bucket”.[14]
[14] T102, L8-9
43Senior Counsel submitted that it would be a very harsh outcome if the Court accepted Ms Deng’s credibility was totally undermined by one misstatement.
Findings on credit/reliability
44I accept there is a contrast between Ms Deng’s viva voce evidence and the evidence within her affidavits as to her gym attendances but I do not consider this to be a ‘killer point’.
45I find the inconsistency raised some concerns as to her reliability. Despite this, I formed the view that Ms Deng was doing her best to tell the truth. She presented to the Court as a stoic person who had kept working despite her ongoing difficulties.
46There were no other issues raised by the defendant to impugn Ms Deng’s credit.
47English is not Ms Deng’s first language. The affidavits were sworn without the assistance of an interpreter. It was sometimes difficult to follow what she was saying when she gave oral evidence without the assistance of an interpreter.
48I accept the submission made on Ms Deng’s behalf that inroads into her credit were peripheral and therefore overall, her credit was not impugned.
49I also find that Ms Deng’s reliability was not undermined by the inconsistency.
Medical evidence
50I have reviewed all of the medical evidence tendered by the plaintiff and defendant but will only refer to it as is necessary to resolve the issues in dispute.
Ms Deng’s medical evidence
Medico-legal reports
Mr John Crock, (Plastic and Reconstructive Surgeon)
51Ms Deng tendered three reports from Mr Crock dated 7 April 2022, 19 April 2023 and 12 September 2023.[15]
[15] Plaintiff’s Exhibit P5, PCB 48-53, 54-80, 145-150
52At the first appointment, Mr Crock examined Ms Deng via Telehealth for the purposes of an impairment benefit assessment. He noted Ms Deng had gone well after the release operations in 2019 for approximately eight months but was now relapsing.[16]
[16] Plaintiff’s Exhibit P5, PCB 49
53Mr Crock next examined Ms Deng on 18 April 2023 in person. During this examination, Mr Crock carried out grip strength testing with a Jamar dynamometer with the following results:
· On the non-dominant left hand, he recorded results of 18 kilograms, 18 kilograms and 22 kilograms on three successive passes.
· On the dominant right hand, he recorded results of 10 kilograms, 10 kilograms with pillar pain and was unable to carry out a third test due to pain.[17]
[17] Plaintiff’s Exhibit P5, PCB 49
54Mr Crock assessed Ms Deng a third time via video call conference on 12 September 2023.[18]
[18] Plaintiff’s Exhibit P5, PCB 145-150
55At that time, Ms Deng reported her wrist pain persisted and was progressively worsening. She reported struggling to cope with her duties as a cleaner.
56Mr Crock was provided with copies of the reports of Mr Thomas Robbins, hand and plastic surgeon, and was requested to comment on Mr Robbins’ opinions.
57He disagreed with a number of Mr Robbins’ propositions. He said there was a clinical explanation for her current restrictions. It was his opinion that Ms Deng’s carpal tunnel syndrome had been caused by her employment which led to two operations.
58It appears that Mr Crock opined that there was evidence of median neuritis and wrist arthralgia and that it was his opinion that these conditions were precipitated by the carpal tunnel syndrome.
Mr Peter L Dixon (Plastic Surgeon)
59The plaintiff tendered a report from Mr Dixon dated 2 December 2020 prepared after a teleconference examination.[19]
[19] Plaintiff’s Exhibit P7, PCB 89-96
60Mr Dixon did not conduct a physical examination but recorded what he described to be unrestricted movements of Ms Deng’s shoulders, elbows, wrists and fingers.
61Mr Dixon confirmed a diagnosis of bilateral carpal tunnel syndrome which had progressively deteriorated between 2010 and 2018. It was his opinion that Ms Deng’s bilateral condition had resolved after the operations.[20]
[20] Plaintiff’s Exhibit P7, PCB 93
62Mr Dixon noted Ms Deng did not manifest abnormal pain behaviour or appear to embellish or exaggerate her presentation.
Mr Barclay Reid (General Surgeon)
63The plaintiff tendered a report from Mr Reid dated 23 November 2021 prepared for the purposes of an impairment benefit assessment.[21]
[21] Plaintiff’s Exhibit P8, PCB 97-108
64Mr Reid measured “extremely poor” grip strength, measuring 4 kilograms, 3 kilograms and 3 kilograms on the right side and 3 kilograms, 8 kilograms and 3 kilograms on the left side.
65Mr Reid recorded movements of the left and right wrist as palmar flexion 50 degrees, dorsiflexion (extension) 30 degrees, radial deviation 20 degrees and ulnar deviation 40 degrees. He did not comment on the relevance of such findings.
66Mr Reid recorded that after the two operations in 2019, Ms Deng:
“… returned to work but developed pain in the forearms and in the thumb. There was numbness if she held cold things (frozen chickens at work) or gripped things for a long time. … .”[22]
[22] Plaintiff’s Exhibit P8, PCB 98
67This suggests Mr Reid took a history of Ms Deng returning to work with the defendant after the operations in 2019, when she in fact ceased in December 2018.
68Mr Reid opined that his clinical findings including mild weakness in the right thumb, pain in the wrist, thumbs and fingers against resistance, faint tingling in certain digits and tenderness over the interphalangeal joints of both hands indicated tendinitis of the wrists and fingers.
69Mr Reid considered that Ms Deng was an honest and cooperative woman. He concluded at the time of his examination she did not have carpal tunnel syndrome on the right side but had mild carpal tunnel syndrome on the left side.
Defendant’s medical evidence
Treating doctors
Dr Richard Rahdon (Plastic Surgeon)
70The defendant tendered one report from Ms Deng’s treating surgeon, Dr Rahdon, dated 16 October 2020.[23]
[23] Defendant’s Exhibit D1, DCB 5-7
71Dr Rahdon last saw Ms Deng on 21 October 2019 at which time he opined that he would expect Ms Deng to make a full recovery in both hands.
Defendant’s medico-legal examiners
Dr Thomas Robbins (Hand and Plastic surgeon)
72The defendant tendered three reports from Dr Robbins dated 14 September 2022,[24] 16 June 2023[25] and 13 July 2023.[26] The first report was prepared after a Telehealth consultation, the second after a face-to-face examination and the third report on the papers.
[24] Defendant’s Exhibit D2, DCB 12-16
[25] Defendant’s Exhibit D2, DCB 17-20
[26] Defendant’s Exhibit D2, DCB 35-36
73Dr Robbins was the only doctor who suggested Ms Deng may be exaggerating her symptoms. He considered that Ms Deng may not have carpal tunnel syndrome.
Dr Joseph Slesenger (Occupational Physician)
74The defendant tendered two reports prepared by Dr Slesenger dated 27 June 2023[27] and 17 July 2023.[28]
[27] Defendant’s Exhibit D3, DCB 21-34
[28] Defendant’s Exhibit D3, DCB 37-43
75The first report was prepared after an in-person examination. Dr Slesenger was told by Ms Deng that she responded well to the operations in 2019 and her symptoms settled but that she later developed similar symptoms whilst working as a cleaner in residential homes.
76Ms Deng advised she had obtained work as a cleaner at Deakin University. She confirmed she was working four hours per day, five days per week and that her role required her to push a trolley, lift bags of rubbish, forcefully push and pull, stand, squat and bend. Ms Deng said she experienced bilateral hand pain whilst performing such duties.
77Dr Slesenger opined that after the operations in 2019, Ms Deng’s bilateral carpal tunnel had resolved and that she had –
“… subsequently sustained a soft tissue injury to both thumbs; in particular, she has developed right thumb and left thumb CMC and MCP arthralgia. These symptoms developed when working as a residential cleaner and have been aggravated by her subsequent employment as a commercial Cleaner.”[29]
[29] Defendant’s Exhibit D3, DCB 31
78Dr Slesenger’s second report was carried out on the papers, without re-examination of Ms Deng. He provided his opinion on Ms Deng’s capacity to perform the roles within a vocational assessment report.
79Dr Slesenger was of the opinion there was a functional element to Ms Deng’s presentation. He considered that her inability to make a fist during the formal examination was contradicted by the observed improved range of movements upon distraction. He did not go so far as to suggest she was consciously exaggerating her symptoms.
Are Ms Deng’s current impairment consequences related to the compensable injury?
Plaintiff’s submissions on Causation
80Senior Counsel for the plaintiff submitted Ms Deng was still suffering from an injury productive of impairment consequences as at the time of the proceeding.
81In support of this, Senior Counsel submitted whilst Ms Deng’s condition had improved after the operations, as was expected, she continued to suffer from persisting right carpal tunnel syndrome post-operation. Senior Counsel relied upon Ms Deng’s continued attendances upon her general practitioner and the nerve conduction studies in September 2022.
82Senior Counsel submitted the defendant had confused the notion of symptoms with the notion of an underlying injury leading to incapacity. Senior Counsel relied upon Grech v Orica Australia Pty Ltd & Anor[30] to submit that employment must be a cause of Ms Deng’s symptoms, but it did not need to be the only cause and it was possible for there to be a multiplicity of causes.
[30] (2006) 14 VR 602 at paragraphs [56]-[58]
83Mr McDonald relied upon the opinions of Dr Reid and Mr Crock to maintain Ms Deng’s current condition was related to her employment with the defendant.
84Mr McDonald submitted the opinion of Dr Rahdon was of limited assistance to the Court, as whilst the report was dated October 2020, Dr Rahdon had not seen Ms Deng since October 2019, when she was still recovering from the second release operation.
Defendant’s submissions on Causation
85The defendant accepted Ms Deng suffered bilateral carpal tunnel syndrome as a result of her employment with the defendant. It was submitted this condition resolved after the 2019 operations.
86The defendant submitted Ms Deng’s current condition was not related to her employment with the defendant and was not compensable.[31] To that end, the defendant relied upon the opinions of Mr Crock, Mr Dixon, Dr Robbins, Dr Rahdon and Dr Slesenger to support this submission.
[31] T61, L7-10
87Counsel for the defendant submitted the only examiner who found Ms Deng’s current presentation was linked to her employment with the defendant was Mr Reid.
88The defendant submitted that the Court should not accept his opinion on this point, as he is a general surgeon (not a plastic and hand specialist) and his opinion was based on an incorrect history regarding Ms Deng’s return to employment with the defendant.
Findings on Causation
89The plaintiff must prove on the balance of probabilities that a causal connection currently exists between the injury and her employment with the defendant.
90The question of causation as a matter of common sense and the plaintiff does not have to establish that the employment with the defendant was the sole or dominant cause of her injury.[32]
[32] Zlateska v Consolidated Cleaning Services Pty Ltd [2006] VSCA 141 at paragraphs [8]-{11]
91There is an obvious difficulty associated with determining causation issues on the papers without having had the benefit of hearing evidence from the medical practitioners.
92In reviewing the reports, I am not persuaded by the opinions of Dr Dixon, Dr Rahdon, Dr Slesenger, Dr Robbins or Dr Reid for the following reasons.
93First, Dr Dixon’s report was nearly three years old. He had not been provided with an up-to-date history regarding Ms Deng’s progression. Nor has he had the opportunity to conduct a recent clinical examination. His opinion is therefore of limited assistance to the Court in resolving this issue.
94Second, the same point applies to the opinion of Dr Rahdon. His most recent report is dated 16 October 2020. He last examined Ms Deng more than four years ago, in October 2019. His opinion was also of limited assistance to the Court in resolving this issue.
95Third, I do not accept Dr Slesenger’s opinion that Ms Deng suffered a new soft tissue injury whilst working as a cleaner. Dr Slesenger did not provide any path of reasoning explaining on what basis he considered that there was a new injury and there is no suggestion Ms Deng has ever reported an injury, frank or otherwise, whilst working as a cleaner.
96Fourth, Dr Robbins’ opinion is also of limited assistance. He concluded Ms Deng may have been constitutionally predisposed to bilateral carpal tunnel, suggesting that the condition was never related to her employment with the defendant.
97The defendant did not adopt this analysis. It was not part of the defendant’s case that Ms Deng’s condition was never related to employment.
98Further, Dr Robbins is an outlier in this regard. No other expert has provided a similar opinion.
99Finally, I accept the submission that Mr Reid’s opinion is impugned by the incorrect history that Ms Deng returned to work with the employer after her operations.
100However, Mr Reid was not the only doctor who linked Ms Deng’s current condition with her employment with the defendant.
101As mentioned earlier, Mr Crock disagreed with a number of Mr Robbins’ propositions. It was his opinion that Ms Deng’s carpal tunnel syndrome had been caused by her employment which led to two operations. He opined that there was evidence of median neuritis and wrist arthralgia – in his view, these conditions were precipitated by the carpal tunnel syndrome.
102Both parties relied upon Mr Crock’s opinions and made diametrically opposed submissions about his reports.
103The defendant relied on his opinions as evidence that there was no ongoing relationship between Ms Deng’s current condition and her employment with the defendant.
104Ms Deng relied upon his opinion to support the submission that Ms Deng’s impairment consequences continued to be materially contributed to by the compensable carpal tunnel injury.
105Mr McDonald submitted Mr Crock positively diagnosed Ms Deng with perineural scarring around the median nerve and wrist arthralgia, and concluded that such conditions were related to the carpal tunnel operations.
106I accept this submission. Whilst Mr Crock’s reports could have been clearer, I accept that in reading the reports as a whole, Mr Crock had made a positive diagnosis linking her current restrictions to the carpal tunnel release operations.
107I accept Mr Crock’s diagnosis, given his expertise in this field and given his explanation that such conditions can arise after release operations.
108Mr Crock’s diagnosis accords with Ms Deng’s evidence (and the objective medical evidence) that she experienced an initial improvement in her symptoms after the operations but then experienced a recurrence of her pain.
109I therefore accept Ms Deng has been left with perineural scarring around the median nerve, and wrist arthralgia, as a consequence of the carpal tunnel release operations.
110There is no dispute Ms Deng developed carpal tunnel syndrome whilst working for the defendant. This required operations which resulted in her developing the above conditions.
111I accept that even though Ms Deng’s current condition may have been brought on by her duties as a cleaner, as per Mr Crock, this recurrence was precipitated by the original injury and operations in 2019.
112I am satisfied that Ms Deng’s current condition is materially contributed to by her employment with the defendant.
Range
113In a “range” case, first there has to be a comparison with other cases within the range of possible impairments. Second, the test requires a consideration of whether the plaintiff’s impairments can be fairly described as being more than significant or marked and as being at least very considerable.
Plaintiff’s submissions on Range
114Ms Deng had bilateral carpal tunnel release operations in 2019 but has been left with ongoing pain and restrictions. Ms Deng takes Panadol and Nurofen on a daily basis and tries her best to manage her condition, support her family and get on with her life.
115Ms Deng has lost the capacity for pre-accident work which is a consequence which should be considered.[33]
[33] Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 (“Taylor”)
116Senior Counsel accepted that there was no evidence before the Court that Ms Deng enjoyed her pre-injury work; however, he submitted that this alone did not preclude a consideration of this loss as a consequence.
117Mr McDonald submitted that Ms Deng’s consequences, in circumstances where she was a woman of limited education, were sufficient to meet the threshold.
Defendant’s submissions on Range
118The defendant submitted the leading consequence relied upon by Ms Deng was her inability to return to pre-injury work.
119The defendant submitted there was no evidence that Ms Deng enjoyed her pre-injury job at the factory and as such, this consequence was not relevant in the current application.
120Alternatively, the defendant submitted if the mere loss of capacity to work in a particular vocation was a relevant consequence to be considered by the Court, then it was at best a very modest consequence.
121Counsel for the defendant noted Ms Deng did not require any treatment or prescription medication and had returned to the workforce.
122Ultimately, Mr Clarke submitted Ms Deng’s consequences were not more than “significant” or “marked”.
Findings on Range
123An impairment is not to be held to be serious unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, “fairly described as being more than significant or marked, and as being at least very considerable”.[34]
[34]TB SMS Pty Ltd v Reading [2020] VSCA 203 at paragraph [30]
124I am required to consider not only what has been lost but also what has been retained.
125The medical evidence suggests that Ms Deng’s condition is relatively mild. The overall consensus of the medical opinion is that she could not return to her pre-accident employment.
126Ms Deng has had two operations and, despite this, continues to suffer from residual ongoing pain and restrictions. Whilst she has been able to return to the workforce, she works in pain and relies on non-prescription medication to do so.
127The case of Taylor[35] is an example of how the Court should assess the impact of an injury upon the plaintiff in question, taking into account that a loss of function may have more significant disabling consequences for a particular plaintiff than the same injury may have on a different person.[36]
[35]Supra
[36]Taylor at paragraph [52]
128In Taylor, the plaintiff was a labourer who had worked in a range of manual roles, was substantially illiterate and had relied upon his physical dexterity more than a person with a greater skill set might need to do.[37]
[37]Taylor at paragraph [51]
129It is instructive that in Taylor, it was conceded that the loss of ability to engage in particular forms of employment may be relevant to the issue of pain and suffering consequences in the following ways:
· pain may in fact be experienced at work or while performing particular types of work;
· the inability to perform certain work may be indicative of what injury has in fact been sustained by a worker;
· a worker might suffer a loss of enjoyment of life in being unable to perform work which he or she used to enjoy. There may also be a pain and suffering consequence in respect of any frustration that a worker has been unable to perform activity that he or she used to be able to perform.
130In Taylor, the Court of Appeal noted that the factors above could be interrelated, particularly where a worker continues to suffer ongoing pain from the injury in performing the current work and as a result of the injury, was precluded from engaging in the range and kind of work they formerly engaged in. The Court of Appeal said these factors were not the only ways in which the loss of ability to carry out work activities might be relevant to the assessment of the seriousness of the consequences of an injury.[38]
[38]Taylor at paragraphs [45]-[46]
131Due to her limited education, her refugee status and her responsibility as the breadwinner of the family, Ms Deng has always had to rely on her capacity to perform manual labour. In the past this involved jobs which required the unrestricted use of both hands. The Court finds that Ms Deng’s range of available employment opportunities are now further limited and she is restricted in the type of work she can now undertake.
132When assessing the impact of the injury on Ms Deng, given her employment history and taking into account the impact of the loss of function of her hands on her employability, the Court accepts that this is a significantly disabling consequence for this plaintiff.
133In this case, Ms Deng is restricted in the nature and type of employment that she can undertake; she continues to work on alternative employment with pain and continues to take medication to deal with pain.
134As mentioned earlier, she impressed the Court as someone who was not work shy. She has been doing her utmost to find and retain employment which accommodates her restrictions, in order to continue supporting her family.
135Ms Deng is stoic. The cases make it clear that a stoic plaintiff should not be penalised simply because they are willing to endure pain and remain more active than others.[39]
[39]for example see Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph [13]; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at paragraph [83]
136I consider this a borderline case.
137The following factors have weighed in Ms Deng’s favour despite her return to full-time alternative employment, and the medical opinions that her current restrictions were at the low end of the scale:
· Ms Deng’s need for ongoing medication;
· Ms Deng’s loss of her ability to undertake pre-accident manual work;
· Ms Deng’s restrictions in the range of available work opportunities – limiting the type of manual work she can do – even with pain.
138Taking into account the restrictions Ms Deng now faces, the Court accepts that in this case, her pain and suffering consequences are, when judged in comparison with other cases, fairly described as being more than significant or marked and as being at least very considerable.
139Consequently, the application succeeds.
Disposition
140Leave will be granted to the plaintiff to issue proceedings at common law for pain and suffering damages.
141I will hear the parties on the issue of costs.
- - -
0
8
0