Donovan v Cameron Morley Taskforce Commercial Pty Ltd
[2011] VCC 504
•5 April 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-01707
| BRIONY DONOVAN | Plaintiff |
| v | |
| CAMERON MORLEY TASKFORCE COMMERCIAL PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 and 18 March 2011 |
| DATE OF JUDGMENT: | 5 April 2011 |
| CASE MAY BE CITED AS: | Donovan v Cameron Morley Taskforce Commercial Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 504 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – assessment of consequences associated with impairment of function of the left wrist including loss of ability to play guitar.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett | Arnold Thomas & Becker Pty Ltd |
| For the Defendants | Mr A J Moulds SC with | Lander & Rogers |
| Mr S J A Jurica | ||
| HIS HONOUR: |
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages for the pain and suffering consequences of an injury suffered by her in the course of her employment with the first defendant on 14 April 2005.
2 The plaintiff, who was born on 12 August 1977, is now thirty-three years of age. The injury relied on by the plaintiff is a traumatic injury to the left wrist and the relevant impairment is the impairment of function of the left wrist.
3 In the application, the plaintiff gave viva voce evidence and was cross- examined. Otherwise, the parties rely upon affidavit evidence tendered by the plaintiff, together with a number of medical reports and like documents.
4 The plaintiff has sworn two affidavits: the first dated 10 December 2009 and the second dated 23 February 2011.
5 In her first affidavit, the plaintiff deposed to the fact:
•
that on 14 April 2005 she suffered an injury in the course of her employment with the defendant as a carer for physically disabled and elderly people, when a woman who she was assisting to lift fell onto her left hand;
•
that following the incident she immediately experienced severe pain and the next day she contacted her general practitioner who, by reason of the failure of her condition to stabilise or improve, referred her to a number of specialists and eventually to Mr D McCombe, a hand surgeon, who undertook a surgical reconstruction of her left wrist on 24 July 2006;
•
that by reason of the failure of the first procedure, she underwent a further operation on 16 July 2008;
•
that she continued to suffer from symptoms of pain in her wrist which she described as being “constant and severe” and that she experienced symptoms of a painful “clicking and popping” when she altered the position of her wrist;
•
that her “passion prior to the injury was playing the guitar”. She said that she had previously played in a band; that she would record her own music; that she owned six guitars and that she would play the guitar for three or four hours per day. She said that by reason of the discomfort associated with her injury, she rarely now played her guitars;
•
that while she could cope with many domestic tasks, any task involving heavy lifting was precluded to her.
6 In her second affidavit, sworn 23 February 2001, the plaintiff deposed that:
•
while she was generally right-handed, she was, prior to the accident, “capable with both hands”;
•
she continued to have significant problems with her wrist which involved the presence of constant pain which was aggravated by activity. She said that she employed Advil, an over-the-counter painkiller, to help her with her symptoms. She described her left hand as having wasted and said that she experienced shooting pains in her wrist;
•
she rarely played music and that “I miss playing music a great deal and I believe that contributes to my depression”;
•
she could look after herself generally but that she required help when engaging in activities such as shopping or gardening.
7 In the course of viva voce evidence, the plaintiff said that she very much enjoyed her work as a disability carer and described the loss of her ability to work in that field in the following terms:
“it’s unfortunate. It’s a bit upsetting.”
8 A CD recording of the plaintiff’s music was tendered[1] which contained a number of tracks recorded by the plaintiff in which the plaintiff variously played the drums, a base guitar, a lead guitar and a rhythm guitar.
[1] Exhibit A
9 In cross-examination, the plaintiff confirmed that at the end of 2009, she had completed a Diploma of Justice Course which enabled her to work in the justice system as a case manager. She said that she had not, at this stage, commenced working by reason of a depressive condition from which she had suffered for many years and which had been contributed to by the injury to her wrist.
10 The plaintiff was asked why, upon consulting a new general practitioner in August 2008 and thereafter seeing that doctor on a number of occasions in 2008, 2009 and 2010, she had not raised with her doctor the fact that the disability from which she suffered in the left hand was contributing to her depression, to which she responded:
“I didn’t think it was relevant to discuss it with them at that time. That was
just a personal choice.”
11 The plaintiff said that notwithstanding her injury, she had kept her six guitars. She described the reason for this in the following terms:
“It was before I had my second wrist operation. I was hopeful that I was
going to be able to get back into playing and recording my music.”
12 She described her bedroom as effectively being set up as a recording studio but said that she did not record any more because:
“I can’t really play my guitars.”
13 The plaintiff described her use of Advil, an over-the-counter drug, as being medication which she employed on average once a month. She described having a preference of trying not to employ pain control medication but to live with her symptoms.
14 The plaintiff said that over the space of two years she had obtained a Diploma of Justice from the Chisholm Institute, in the course of which she obtained a number of distinctions and high distinctions. It was put to the plaintiff that her ability to cope with her course and achieve the results which she had achieved was inconsistent with the presence of severe and continuing pain in her left wrist. The plaintiff maintained however that she suffered from severe and ongoing pain but that she had a high pain threshold. When she was asked why, in the presence of this evidence, she had not complained to her general practitioner of those symptoms, the plaintiff responded:
“I did not see a GP for my wrist because they are not the ones who were, you know, taking charge of my wrist problems. I was told that that was all they could do and I just have to live with what is the pain I’m getting. There was no – no one could have offered me any help with the pain regardless of mentioning it.”
The Medical Evidence
15 In reports dated 19 November 2006, 7 September 2007 and 19 November 2008, Mr David McCombe states that the plaintiff presented to him with an injury to the radio-ulnar ligaments of the left wrist and resultant instability of the distal radial ulnar joint. He described performing a procedure on 24 July 2006 for the purpose of reconstructing the left wrist radial ulnar joint.
16 In his report dated 7 September 2007, Mr McCombe described the fact that following her initial surgery, the plaintiff had consulted him with recurrent significant symptoms in her wrist, including pain over the dorsum of the hand in association with gripping and lifting, and the presence of symptoms consistent with recurrent instability. As at September 2007, Mr McCombe had discussed with the plaintiff the performance of a further procedure to employ a tendon graft for the purpose of reconstructing the radio-ulnar ligaments, and opined:
(i)
that the plaintiff was unable to use her left hand for any significant gripping or activity;
(ii)
that the plaintiff had no capacity to carry out the duties of a personal carer and that her capacity was for right-handed duties only.
17 In his report of 19 November 2008, Mr McCombe described undertaking a further reconstructive procedure on 16 July 2008 in the course of which a tendon graft was employed to reconstruct the ligaments of the plaintiff’s distal radio-ulnar joint. Whilst he expressed the opinion that the plaintiff’s condition had not yet stabilised, he opined that the plaintiff’s grip strength and range of mobility was restricted and that her employment opportunities were restricted to clerical or administrative duties.
18 In a report dated 17 October 2008, Dr Noel Leon, general practitioner, described the plaintiff attending at his general practice on 11 August 2008, when she requested the prescription of medication for her depression and panic disorder but made no complaint as to the injury to her left wrist or the presence of symptoms in her left wrist.
19 The medical records of Dr Leon’s practice were also tendered. These reveal that the plaintiff attended the practice on three occasions during 2008; on two occasions during 2009 and on six occasions during 2010, and that with the exception of a consultation on 16 December 2010, the plaintiff made no complaint with respect to the injury suffered to her left wrist.
20 In a report dated 13 January 2011, Mr S Schofield, an orthopaedic surgeon, opined that the plaintiff suffered from persisting excess movement in the left wrist joint which was probably:
“… due to the injury which has not been completely corrected by the
surgery.”
He commented that there were signs of disuse of the wrist, including wasting
of the left forearm.
21 In a report dated 10 March 2011, Dr Roy K Karna, a rheumatologist, opined:
(i) that the plaintiff presented with muscle wasting of the left forearm, hand and wrist; (ii) that the plaintiff was restricted in her ability to perform activities involving heavy lifting and twisting of the wrist and activities that involved sustained forceful grip and lifting of the left wrist. 22 In a report dated 5 September 2007, Professor D Castle, the plaintiff’s treating psychiatrist described his patient in the following terms;
“Briony has longstanding anxiety and depressive symptomology with low self esteem and a poor sense of self worth. One of the only areas in which she was able to express herself and feel confident about herself as well as to engage in socialisation was through her guitar playing”[2]
[2] Plaintiff’s Court Book 25.
The Position of the Defendant
23 On behalf of the defendants, Mr Moulds SC took issue as to:
(i)
The plaintiff’s evidence as to the level of pain from which she suffered. It was submitted that if the plaintiff’s statement that she suffered from constant symptoms of severe pain was taken at face value, this was inconsistent with her failure to present to her general practitioner with complaints of pain or to employ medication of greater strength or in greater quantity than that which she resorted to.
(ii)
The plaintiff’s evidence that she had forsaken her guitar playing. Mr Moulds SC pointed to the fact that the plaintiff had retained possession of her six guitars and submitted that this fact made it inconceivable that she had not retained a capacity to use them.
(iii)
Finally, it was submitted that the loss to the plaintiff of her ability to work as a carer needed to be assessed having regard to the circumstance of her employment which had involved working only for ten hours a week: and more particularly having regard to the fact that she had subsequently obtained a Diploma of Justice; that she was a qualified case management officer; and that this was a career which she desired to pursue.
24 I accept the force in the Mr Mould’s submission that the plaintiff’s subjective description of the severity of the pain from which she suffers is out of keeping generally with the description provided by her to the medical practitioners who have treated and examined her, and that this description appears to be inconsistent with both the plaintiff’s resort to medication, and her general absence of complaint of the presence of pain to her general practitioner.
25 When I take into account the plaintiff’s evidence as to her symptoms of pain and contrast it with the histories provided by her to the various medical practitioners whose reports have been tendered as evidence in this proceeding, I am satisfied that whilst the plaintiff suffers from ongoing symptoms of pain in her wrist, those symptoms are more appropriately characterised as being of a nagging nuisance type level.
26 I am however satisfied, having observed the severe wasting of the plaintiff’s left wrist and having taken into account the various medical opinions which generally describe the plaintiff as an accurate historian and document the restrictions which her injury is likely to cause her, that the plaintiff suffers from symptoms in her left wrist;
•
of pain and discomfort of sufficient magnitude to cause the plaintiff to avoid using her wrist and hand to such a degree that she has developed wasting in the wrist and hand;
•
sufficient to preclude her from engaging in any strenuous activity; activity which involves the application of strength or force by her left wrist; or activity which exposes the wrist to pressure;
27 It is was submitted on behalf of the defendants that I should not accept the plaintiff’s evidence that she had, to all intents and purposes, abandoned playing the guitar.
28 Insofar as this submission, were I to accept it, would involve a finding that the plaintiff generally exaggerated the extent of her disability, I am of the opinion that such a finding would be against the weight of the evidence for the following reasons:
(i)
Firstly, the wasting of the plaintiffs wrist and hand is consistent with the plaintiff making limited use that limb;
(ii)
Secondly, there is a general consensus in the medical evidence that the plaintiff was an accurate historian;
(iii)
Thirdly, the plaintiff made no attempt to exaggerate the extent of the loss by her of the ability to work as a disability carer;
(iv)
Fourthly, the plaintiff has applied herself with considerable success to gaining a qualification which will lead her to secure employment which suggests that she is not compensation focussed in her attitude;
(v)
Fifthly, and most significantly in my opinion, notwithstanding the uncontradicted medical evidence that the effect of the injury sustained by the plaintiff to her left wrist is to preclude her from engaging in any activity which places strain upon the wrist or requires her to employ force or strength through her left wrist, the plaintiff, both in her affidavit and her evidence, made no attempt to capitalise upon that evidence. A moment’s reflection would suggest a plethora of activities which the plaintiff would have difficulty in performing because they require bi-lateral wrist strength. That the plaintiff did not harp upon those activities in her affidavits, in my opinion speaks of the plaintiff being a modest witness who was not prone to exaggeration.
29 Accordingly, I accept the plaintiff’s evidence that her injury now precludes her from playing the guitar
Finding
30 In deciding the issue which arises in this case, namely whether the plaintiff’s pain and suffering consequences, when judged by a comparison with other cases in the range of possible impairments or losses of body function, may be fairly described as being more than significant or marked and as being at least very considerable, I am required to assess the consequences in terms of pain and suffering which the plaintiff’s injury has occasioned to her, and determine where the facts of this case sit in the broad spectrum of cases. The task which I am required to undertake has been described as involving “a value judgment in which matters of fact and degree, and of impression, are operative”,[3] and one in which I am required to take into account –
“… not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of the consequences, may be informed, to some extent, by what is retained.”[4]
[3] Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
[4] Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260
31 In an application of this nature, I am required to exercise a value judgment as to whether the consequences to the plaintiff of the injury suffered by him are appropriately described as being “more than significant or marked and as being at least very considerable” when considered within the broad range of accident-related impairment and disability.
32 My impression of the plaintiff was that of a quiet, socially withdrawn and vulnerable person,[5] who took great enjoyment in and gained great solace from her music; the playing of the guitar providing her with her principal pastime and pleasure.
[5] See the report of Professor D Castle at pages25-27 of the plaintiff’s court book
33 There was no challenge to the plaintiff’s evidence that before her injury she played the guitar for three to four hours each day. As I have said, I am satisfied that the plaintiff has effectively been forced by her injury to abandon playing the guitar. In these circumstances I am satisfied that, what was for the plaintiff her major pastime and passion, has now been lost to her. I am satisfied that this loss alone is for the plaintiff an extremely significant loss given the nature of her personality and the importance of her guitar playing in providing a grounding for her in the manner described by Professor Castle.
34 There is no issue in this proceeding that the plaintiff’s condition is not stabilised.
35 When account is taken of:
(i) the loss of the ability in the plaintiff to pursue her passion for guitar playing given the significance of that activity to her in that it provided her with the major avenue by which she could express herself, feel confident about herself and engage in socialisation; (ii) the loss of the plaintiff’s ability to perform any activity which requires bilateral strength in her wrists, which includes the loss of the ability to be employed in an occupation requiring physical work ; (iii) the pain associated with the plaintiff’s condition; and when these factors are considered in the context of the plaintiff’s young age, I am of the opinion that it is appropriate to describe the extent of the impairment of the plaintiff’s left wrist as being more than “considerable” or “marked” and as being “at least very significant”.
36 In the circumstances, I am satisfied that the plaintiff is entitled to the leave sought by her, and I will hear the parties as to the precise form of the order which should be made in this proceeding and upon the issue of costs.
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