Dwyer v Calco Timbers Pty Ltd (No 2)

[2008] VSCA 260

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3787 of 2005

BRETT DWYER	Appellant
v
CALCO TIMBERS PTY LTD (NO 2)	Respondent

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JUDGES:	NETTLE, ASHLEY and DODDS-STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 December 2008
DATE OF JUDGMENT:	17 December 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 260

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ACCIDENT COMPENSATION – Application under s 134AB(16)(b), Accident Compensation Act 1985 – Whether pain and suffering consequences of impairment ‘more than significant or marked, and at least very considerable’ – Permanent injury test in respect of appellant’s impairment satisfied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J H Kennan SC with	Slater & Gordon
Dr P T Vout
For the Respondent	Mr J Ruskin QC with	Wisewoulds
Mr J P Gorton
NETTLE JA:

1. I have had the advantage of reading in draft the reasons for judgment of Ashley, JA and I agree with his Honour, for the reasons that he gives, that the injury to the appellant’s arm suffered on 27 March 2000 caused such permanent serious impairment or loss of body function as to amount to serious injury as defined in s 134AB of the Accident Compensation Act 1985.

2. I wish to add only two things. First, although it does not affect the result in this case, I see no reason to doubt that the appellant’s loss of upward and downward movement of his palm constituted disfigurement as much as it did impairment.

3. Secondly, I suspect that, but for the way in which the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well not have disputed his claim. It is unnecessary for present purposes to reach a concluded view about that and I have not done so. But it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.

ASHLEY JA:

1. The appellant, as will be known by those familiar with the decisions of this Court[1] and of the High Court,[2] failed in an application brought under s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’) for a leave to bring a proceeding for the recovery of damages for ‘serious injury’ as defined by s 134AB (37)(a) and/or (b) of the Act – the serious injury being, as he claimed, permanent serious impairment of his right arm, and/or permanent serious disfigurement of that limb. His unsuccessful application was for leave to bring a proceeding in respect only of the pain and suffering consequences of injury.

   [1] [2006] VSCA 187.

   [2] (2008) 82 ALJR 669.

   Matters of principle

2. The correct approach to an appeal against a determination made under s 134AB(16), in the circumstances addressed by s 134AD, was described by the High Court in its decision, favourable to the present appellant, in Dwyer v Calco Timbers Pty Ltd.[3] This Court has subsequently addressed the working-out of what the High Court there said.[4]

   [3] Ibid.

   [4]              Church v Echuca Regional Health [2008] VSCA 153; Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167

3. No new question of principle arises in this case. On remitter from the High Court, the question is whether this Court is or is not persuaded, for the most part on a consideration of the materials which were before the judge who heard the application, that the consequences to the appellant of the compensable injury constitute serious injury. I say ‘for the most part’ because the appellant, without objection by respondent’s counsel, demonstrated to us the extent to which use of his right arm is now restricted and – the other side of the coin – the extent to which use is retained; and showed us his arm, so that we could observe the extent of the residual scarring and other disfigurement.

4. No new question of principle arises, also, because the test for what constitutes serious injury – judicially articulated and legislatively expressed[5] - is not in doubt. Whether the consequences of compensable injury for an applicant satisfy the test is to be assessed having regard to the spectrum of all cases, not simply those which end up in litigation. The latter may be supposed to be – which is not to say that they are - cases in which the consequences are not glaringly apparent one way or the other.

   [5]              Humphreys v Poljak [1992] 2 VR 129 (Crockett and Southwell JJ). See now s 134AB(38)(c) and compare s 134AB(38)(d). See also s 134AB(38)(h) and (i).

   No credit issue

5. In assessing the consequences of the compensable injury for the appellant, this Court can safely rely upon the appellant’s evidence – by affidavit and in cross- examination – and (to the extent of its relevance) his history given to examining doctors from time to time. That was the opinion of the judge who heard the application. She described the appellant as ‘a straightforward witness who did not seek to embellish or exaggerate either his condition or the impact of the impairment or disfigurement on him’. In this context it is convenient to note that I and the other members of the Court viewed a videotape which depicted the appellant’s work activities in October 2004. Nothing there revealed, in my opinion, gainsays the disabling consequences of which the appellant gave evidence – although, clearly enough, it shows that the appellant has retained sufficient use of his dominant right arm to undertake a range of activities to do with operation of the bobcat and excavator business which he established in 2003. Of the videotape, more later.

   The compensable injury. Treatment

6. The appellant, a man born 2 February 1964, and so now aged 44, was injured whilst working as a truck driver for the respondent on 27 March 2000. As he was unfolding a crane fitted to the back of his truck the arm of the crane became disengaged. It fell straight down on to his right arm.

7. The limb was seriously injured. The appellant was taken to hospital by ambulance. He had suffered a crushing compound fracture of the proximal right radius. A compartment syndrome developed. At surgery, a pin was inserted to stabilise the fracture, and a fasciotomy of both the flexor and extensor compartments was performed. The fasciotomy wounds remained open for several weeks. Then they were sutured. A full length plaster was then applied. The pin was removed on 11 May 2000. Plaster was removed on 1 June 2000. The appellant was initially hospitalised for several weeks. He returned to hospital to have the pin remitted.

8. After surgical intervention was at an end, the appellant was treated by occupational therapy and painkillers. He continued to use painkillers until 2001. Then he and his general practitioner agreed that he should cease all medication. So, when his application was heard in November 2005, he had not been in receipt of treatment for some four years. This is not to suggest, however, that he no longer had pain or ache in the arm. Rather, on his account, he determined to put up with it, having been told by his surgeon that nothing more could be done.

   The impairment consequences of injury

9. The consequences of injury for a particular worker begin with findings of fact. Assessment whether those consequences, in terms of impairment or disfigurement, constitute serious injury involves, as has been said, a value judgment.

10. The judge below described the impairment consequences of the appellant’s

    injury this way:

    . . . the plaintiff gave up the heavier manual type of work he was performing prior to the accident and has since successfully started his own business, where he works as an earthmoving contractor and manages to use the heavy equipment involved in this business at the same time as accommodating the ongoing impairment of his right arm. However, notwithstanding his success in establishing his own business, the plaintiff describes the following consequences, which he asserts are serious to him:

    • Both in his business and in his domestic environment, pain prevents him from digging holes which require twisting and powerful movement of the right arm. However, the plaintiff agrees that from time to time when he has to, he can shovel out dirt at a worksite for a couple of minutes.

    • He is unable to fully extend the elbow of his right arm or, with the arm extended as much as he can, turn his palm fully up or down. These restrictions were demonstrated in Court and are consistent with the medical evidence confirming a fixed flexion deformity of his right elbow and a loss of supination and pronation in the forearm. The most recent medical opinion is that obtained from Mr Huffam, an examining orthopaedic surgeon who measured the plaintiff's movements in September this year, noting that the plaintiff ‘... had

    moderate limitation of movement of the elbow joint with 40 degree loss of flexion and then flexion to 120 degrees. Twisting movements of the forearm, pronation and supination were limited to 40° pronation and 40° supination, that is about half the normal range of movement. These movements were measured with a goniometer. He had a moderate limitation of movement of the right wrist. Dorsiflexion 40°. Palmar flexion 60°. Radial deviation 15°. Ulna deviation 30°. He had a full range of movement of the finger joints. It was noted that the skin of the right hand was quite solid and thickened, indicating that he is using his hand for manual work. Muscle power of flexion and extension of the elbow, pronation and supination of the forearm and flexion and extension of the wrist and fingers all appear to be undiminished. ... Mr Dwyer has made quite a good, although not complete recovery from his injury’.

    • In Court, the plaintiff demonstrated that he is unable to draw his right forearm back up against his bicep to the same extent as he can with his left forearm. The difference is apparent and, according to the plaintiff, it causes him pain to try and push the right forearm further.

    • There is a loss of strength and muscle wastage in the plaintiff's right arm. The most recent measurement of the plaintiff's grip strength was undertaken by Mr Henderson in mid 2003, confirming a significant loss of strength in the plaintiff's right hand. So far as muscle wasting is concerned, this provides objective proof of damage and under-use of the dominant right limb, and in September this year Mr Huffam noted: ‘There was some relative wasting of the right arm compared to the left. Circumferences of the right upper arm 35cm, left 36.5cm. Right forearm 30cm, left 32cm.’.

    • There is numbness on either side of both scars. Mr Huffam, in his report, refers to ‘an area of diminished sensation posterior to the scar over the extensor compartment of the arm’. However, Mr Henderson, in his

    earlier report, refers to ‘... a large elongated triangular area of sensory deficit of the posterior anti-brachial cutaneous nerve branch of the radial nerve. This area extends posteriorly for some 5cm from the scar, below the 10cm-15cm junction; and about 4cm proximal above this site of change of direction of the scar’.

    • Since the accident, the pain and discomfort experienced in his right arm has caused him to give up activities such as motorbike riding at weekends and playing social games of golf as he previously did a dozen or more times a year. Although the plaintiff has ridden a pushbike ‘on the odd occasion’ since the accident, he says he is now unable to undertake this activity with his partner and her children without pain. He also finds activities such as personal toileting and reaching with his arm extended to a position behind him awkward and painful. Generally speaking, all of the medical evidence, particularly the most recent medical opinion, supports the plaintiff's complaints concerning the level of restriction the impairment of his right arm imposes on his social, recreational and domestic activities.

    • The plaintiff describes the frequency and level of pain in his right arm in his most recent affidavit by saying: ‘I continue to have daily pain in my right arm. I wake in the morning with an aching pain in the arm which lasts for approximately 1 hour. By the time I get to work I am generally pain free. However the pain tends to recur in the day due to the physical nature of the work I do. I am right handed and have always favoured the use of my right arm. Activities such as lifting ramps from the bobcat, driving the truck and digging cause an aggravation of my right arm pain. By the end of most working days I experience an aching in my right arm. Additionally I experience short intermittent periods of sharp pain in my right elbow on most days. ... I no longer see any treating doctors or take any medication for my right arm. The doctors have told me that there is nothing more they can do for me’.

    • There is a risk of the development of osteoarthritis in the right elbow. Both the hospital report and Mr Davie, in his report in 2004, allude to this possibility.

    • The impairment of the plaintiff's right arm precludes him from performing the heavy manual type of work he was doing prior to the accident. The medical evidence supports this view, but also points to the fact that the plaintiff has been able to return to full-time and active employment as an earthmoving contractor. The long segment of video film showing the plaintiff working at various construction sites in October last year confirms that, notwithstanding the restrictions imposed by the permanent impairment of his dominant arm, the plaintiff appears to function well and to use his right arm effectively.

    17          It is clear that the plaintiff suffers from a permanent impairment of the right upper limb which has impacted on his life in the ways described by him in his affidavit and oral evidence, most of which is supported by the medical opinion tendered in this proceeding.

11. Before us, counsel for both parties took no issue with any of the judge’s findings. That does not relieve this Court of the obligation of making findings, but it does simplify the task. Having read the appellant’s affidavits, his cross-examination and re-examination, and all the medical reports, I consider that the judge’s findings were correct. I adopt them as my own.

    The disfigurement consequences of injury

12. The judge described the disfigurement this way:

33	As the medical evidence and any visual inspection of the plaintiff's arm reveals, there is disfigurement through scarring and visible deformity of the right upper limb caused by the plaintiff's inability to fully straighten the elbow and the loss of condition and wasting of the upper and lower parts of the limb.
34	Accordingly, in this case there is permanent disfigurement of the plaintiff's right upper limb by reason of:

• Two long and deep scars located on the plaintiff's right forearm. They are not raised and they appear well healed, although there is "rutting" on the surface. Their colour is consistent with the rest of the plaintiff's lightly tanned forearm. The scars are obvious and unsightly because of their length, their width and their location on a part of the body regularly exposed.

• The deformity of the appearance of the right upper limb caused by a combination of the fixed elbow position and the comparative wasting, flabbiness and loss of tone in the limb.

and

36          …In most cases the objective reality of disfigurement will give rise to subjective pain and suffering consequences which include the social impact on the plaintiff as distinct from any psychological or psychiatric consequences.

37          Accordingly, in a 41-year-old male who in the past prided himself in his appearance pain and suffering consequences include the fact that the plaintiff has a permanent and unsightly disfigurement, the plaintiff’s embarrassment and distress and his tendency to cover up the disfigured limb because the disfigurement occurs in an exposed and prominent position. These are relevant consequences in determining, as I have in this case, that the disfigurement is substantial.

1. Her Honour rejected, however an argument advanced for the appellant that his ‘loss of upward and downward movement of … the palm’ also constituted a disfigurement. She regarded those disabilities as falling within the area of impairment rather than disfigurement.

2. Leaving aside the matter last-mentioned, the evidence which was before the judge, together with the appearance of the appellant’s right arm when he showed it to this Court, validates the findings made by the judge which I have set out above. I adopt them as my own.

   Serious injury?

3. The area of debate between the parties was confined, but critical. According to counsel for the appellant, the pain and suffering consequences of the impairment were for the appellant, in the language of the Act, ‘more than significant or marked, and at least very considerable’.[6] Counsel for the respondent, to the contrary, characterised the pain and suffering consequences of the impairment as ‘significant, or marked, but not more’.[7]

   [6]              Counsel contended for a similar conclusion in respect of the consequences of the disfigurement.

   [7]              He made a like submission in respect of the disfigurement.

4. In support of his general proposition, counsel for the appellant highlighted the various disabilities which the judge identified in her reasons. He submitted, in effect, that any finding other than that the impairment consequences were at least very considerable would be discordant with the identified disabilities; and that it was the same in respect of the consequences for his client of the disfigurement.

5. Opposing a conclusion favourable to the appellant, counsel for the respondent

   submitted that –

(1)	On the doctors’ accounts, the appellant had made ‘a good though not complete recovery from his injuries’. There had been ‘a remarkably good result overall’
(2)	The appellant had received no treatment for many years. That gave an insight into whether the pain which he experienced was particularly disabling.
(3)	The appellant was disabled from performing very heavy work. But he was now capable of now undertaking, and was undertaking, heavy work. He was working long hours each week. The videotape showed the kind of work which he performed, and revealed that he had no disability in performing it.
(4)	The risk of developing arthritis was relevant, but it was only a risk, not a probability.
(5)	The extent of the impairment consequences of injury for a particular worker must be assessed by reference not only to what the worker is precluded from doing, but also by reference to what he or she can still do.[8]

[8]              Counsel listed things that the appellant was evidently able to do because he did not complain that he could not do them. Thus, he did not complain that he was in constant pain, that he could not get comfortable, that his sleep was affected, that the extent of his disabilities was affected by heat or cold, that he could not engage in normal social relationships, that he could not drive or cook, that he could not work around the house, or that he was unable to socialise or attend sporting or other events.

1. Counsel for the appellant took issue with all of those submissions. He took particular issue with the last of them, arguing that one must focus upon impairment, not upon the residue of what remains possible.

2. I have considered whether and to what extent I should accept the various submissions made for the respondent. I will deal with them seriatim.

3. The appellant has evidently made a very good recovery from a grave injury. But that does not gainsay the recovery having nonetheless left the appellant with an impairment which satisfies the serious injury test.

4. Next, the fact that the appellant has not had treatment for many years does not stand, I consider, against a conclusion that his continuing pain, though not ‘disabling’, is nonetheless a matter of some significance. The appellant gave evidence, in effect, that he abandoned treatment - including the taking of analgesics - when he was told that nothing more that could be done for him. He did not pretend in evidence that the pain was crippling. He said in a forthright way that he suffered aching pain in the morning and after a day’s work. There was no reason to disbelieve him.

1. I turn to the circumstance that, at the time when his application was heard, the appellant had been working in his own business for a few years. He did not say that he could not undertake the work, and the videotape showed that he could perform it. I do not agree that what he was shown to do involved heavy work. So I reject the respondent’s submission that the appellant’s ability to work had only been reduced from an ability to engage in very heavy work to an ability to undertake heavy work. In any event, so far as the pain and suffering consequences of the impairment were concerned, the appellant was simply asserting that an area of work which he had enjoyed had been closed off to him; and it was not in debate that such an area of work had been closed off to him.

2. I next agree with the submission for the respondent that, in assessing the extent of the present and prospective consequences of injury, the prospect that the appellant may develop arthritis in the elbow should not to be overstated. I have not accounted it a matter of much significance in assessing whether or not the impairment consequences are serious for the appellant.

3. Finally, I agree with the submission for the respondent that in assessing whether the impairment consequences of injury are serious, one should consider 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 consequences, may be informed, to an extent, by what is retained.

4. Notwithstanding that I have accepted some of the submissions made on behalf of the respondent, I consider that the pain and suffering consequences of the appellant’s injury – consequences which are unquestionably permanent – satisfy the permanent injury test with respect to his impairment. The burden of the evidence is that his right arm is permanently fixed with a substantial flexion deformity at the elbow; but that he cannot fully flex his forearm at the elbow. The movements of his forearm and wrist are significantly reduced. There is muscle wasting of the forearm, and significant loss of the power of grip. There are areas of numbness in the vicinity of the scars. He is at some increased risk of the development of arthritis in the elbow joint. He suffers pain and ache, in the mornings and after work. He has had to desist from work which he enjoyed. Several recreational pursuits are denied to him. He is limited in undertaking another recreational pursuit. He has some difficulty with personal toileting. The respondent’s catalogue of symptoms of which the appellant does not complain, and of activities which are not denied him, is a part of the story; but a part only. In this case, I am not at all persuaded that it tells against an affirmative conclusion in the appellant’s favour.

5. What I have thus far said makes it unnecessary to decide whether the appellant also made good his contention that he suffered ‘serious injury’ as defined by s 134AB(37)(b) of the Act. I refrain from expressing a final conclusion about the matter, noting only that I have some doubt whether his disfigurement would satisfy the necessary threshold. The scarring, though extensive, is now very well healed and not very noticeable. The flexion deformity at the elbow, though constituting a disfigurement, in my view has a more significant impact in the context of impairment.

   Orders

6. I would allow the appeal and order that the appellant have leave to bring a proceeding for recovery of damages for pain and suffering in respect of injury sustained on 27 March in compensable circumstances.

DODDS-STREETON JA:

1. I have had the benefit of reading in draft the reasons for judgment prepared by Ashley JA. I agree with his Honour’s proposed disposition for the reasons he gives.

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