Gallagher v Coleman Rail Pty Ltd and Victorian WorkCover
[2010] VCC 788
•10 June 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-04641
| STEPHEN GALLAGHER | Plaintiff |
| v | |
| COLEMAN RAIL PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 June 2010 |
| DATE OF JUDGMENT: | 10 June 2010 |
| CASE MAY BE CITED AS: | Gallagher v Coleman Rail Pty Ltd & Victorian WorkCover Authority |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0788 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the right arm – disfigurement – pain and suffering only – whether consequences to the plaintiff are serious.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Morfuni SC and | Barbante & Associates Pty |
| Mr J Sala | ||
| For the Defendants | Mr B McKenzie | Lander & Rogers |
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the FIRST defendant on 7 January 2006 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The plaintiff also brings an application pursuant to clause (b) of the “serious” definition for a permanent serious disfigurement of his right arm.
5 The impairment of body function relied upon in this case is the right arm.
6 The impairment must have consequences in relation to pain and suffering which when judged by comparison with other cases in the range of possible impairments may be fairly described at the date of hearing as being more than significant or marked and at least very considerable.
7 The plaintiff relied upon two affidavits and he was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
8 The plaintiff is presently aged fifty, having been born on 22 July 1959. He is right hand dominant.
9 The plaintiff completed Year 8 and then worked as a storeman for about a year. For the following year he worked as a welder, and then carried out short term employment for a number of years.
10 The plaintiff then went to Western Australia, where he worked for Leighton Contractors in 1980 as a forklift operator for about five years.
11 Between 1985 and 1990, the plaintiff was employed by B & L Transport as a truck driver, until he started his own business in the 1990s. During the 1990s, the plaintiff developed pain in his right hand which would often make it difficult for him to hold the steering wheel or carry heavy weights. This condition was diagnosed eventually as carpal tunnel syndrome for which the plaintiff underwent surgery whilst employed in Western Australia. After the surgery, he was off work for two weeks and then returned to his own business as an owner-driver.
12 Following a short recovery period, the plaintiff had no problems associated with his carpal tunnel condition.
13 In 2000, the plaintiff commenced work with Jurien Bay Transport in Western Australia as a truck driver, where he worked for a year, before again operating his own business in 2001 running a coastal and tip truck bobcat hire.
14 The plaintiff worked in this business until 2004, earning very good money, but in that year he was charged with possession of amphetamines and spent twelve months in jail.
15 When he came out of jail in 2005, the plaintiff left Western Australia and moved to Victoria, where he commenced work with the first defendant in Tullamarine as a plant operator. This job paid very well and whenever the plaintiff worked overtime he earned up to $1,800 or $2,000 gross per week.
16 The plaintiff enjoyed this work, which was very easy compared to previous jobs. He was required to operate an excavator at various locations and he was often sent interstate for work.
17 On the said date, the plaintiff was working at the Tomago depot in New South Wales (“the depot”). After completing his duties, he was required to clean and decontaminate a Caterpillar excavator (“the excavator”).
18 Whilst cleaning under the steps of the excavator using a high pressure hose, the plaintiff grazed and cut his right arm near his elbow (“the incident”).
19 At that time, the plaintiff did not take much notice of the injury because he did not initially see much blood at all. He was covered in grease, oil and dirt as a result of his cleaning duties and the work he had been doing. His shirt was ripped in the incident. He wiped a bit of blood off his elbow before cleaning himself up to go home.
20 The plaintiff was aware of the cut on his elbow at the time of incident and he reported it to his supervisor at the depot.
21 Some time later, the plaintiff’s right arm became painful and he found he was having difficulty stretching it out. He kept working for the rest of the week, although not feeling his best. He initially did not put this down to his arm injury.
22 About a week later, the plaintiff still was not feeling well and he was about to start a new job on the Sunday. The problem with stretching his arm continued and he noticed he had a lump on his elbow. That morning he felt severe pain when putting the fittings on the excavator and he needed to seek help with this task from his boss. The plaintiff was given some painkillers by his boss but the medication did not alleviate his pain.
23 By that night, the plaintiff was in such severe pain that he went to the Maitland Hospital in New South Wales, where he was put into intensive care. At that stage, the Hospital’s main concern was the plaintiff’s raised temperature.
24 Cross examination in this case dealt largely with issues of causation, with the defendants relying on documentation which set out the incident happened at home, not at work.
25 A note from the Emergency Department triage at the Maitland Hospital on 15 January 2006, made at 15:56, set out the plaintiff arrived at 15:43. It was noted that the plaintiff presented with:
“Pain in the limb; hit right elbow on bench two days ago; today painful
and swollen.”
26 That entry was typed, but there was also the following handwriting on this document as follows:
“Hit right elbow on corner of a table at home while playing and got this injury. There was a small skin tear and small bleeding at the time of injury on the olecranon area.”
27 However, also on the Maitland Hospital notes there were a number of other entries consistent with the plaintiff’s version of the incident.
28 An Emergency Department report set out the plaintiff’s arrival date of 15 January 2006 at 16.00 and the presenting problem in handwriting was:
“Pain and swelling to right elbow. Hit arm accidentally on machinery two
days ago, now complaining of the above.”
29 A further entry in the History, Examination and Progress Notes of 15 January 2006 set out the history of presenting complaint was:
“At work on 12 January 2006, hit elbow on machinery. Right elbow very
painful. Since then increasing pain and a lump.”
30 In the Interim Discharge Letter, the date of discharge being 17 January 2006, under the heading “Operations Management” it was noted that the plaintiff was:
“.. a forty six year old machine operator. On 12 January 2006, he hit his elbow on machinery and had a small laceration? Then increasing right elbow pain, fevers, chills and sweat.”
31 In the Clinical Progress Notes of The Royal Melbourne Hospital, where the plaintiff was an in patient after discharge from John Hunter, it was noted, on 6 February 2006, that the plaintiff was a forty six year old male admitted to The Royal Melbourne Hospital on 2 February 2006 from John Hunter Hospital. The plaintiff sustained injury at work on 12 January 2006 which became infected, septic, fever.
32 Further documentation from The Royal Melbourne Hospital completed by Bernadette Young, intern, on 8 February 2006, set out the plaintiff suffered a scratch at work on 12 January 2006 which became red and painful and he was admitted to John Hunter Hospital for debridement.
33 Another record from The Royal Melbourne Hospital completed by T Mills set out the past medical history as “cutting arm at work on 12 January 2006”.
34 The plaintiff swore his second affidavit on 6 November 2009, dealing with the issues raised in the defendants’ material as circumstances of the incident.
35 The plaintiff deposed, when he initially attended Maitland Hospital, he was suffering pain and swelling to his right elbow with no other complaints that he had hit his right elbow on the corner of a table at home while playing.
36 The plaintiff has maintained all along, and still does, that the injury occurred on 7 January 2006 when he was at Tomago, New South Wales, at the first defendant’s yard when he was decontaminating under the cabin of the excavator with a high-pressure washer. He was in fact underneath the steps of the excavator when he grazed and cut his right arm near the elbow.
37 Whilst the plaintiff was in John Hunter Hospital on 18 January 2006, a Claim for Compensation was completed by Pam Chamley, the WorkCover claims manager with the first defendant. The form was signed by the plaintiff’s brother on his behalf.
38 Ms Chamley set out that the plaintiff suffered injury working as a plant operator at the Victoria Street Station, Maitland, New South Wales, when his left elbow hit the inside wall of an excavator cabin. At the time of the incident, the plaintiff was travelling on off-track sleepers when rubber tyres dropped into gap, jolting the excavator. It was noted the incident was reported to Danny Gallagher on 7 January 2006.
39 In the employer’s claim report of that same date, it was noted the injury occurred at the Victoria Street Station and was reported to Danny Gallagher, supervisor/manager, and occurred when the plaintiff hit his left elbow on inside wall of an excavator cabin.
40 In cross examination, the plaintiff explained that these details as to the incident provided by Ms Chamley were wrong as the plaintiff injured his right elbow at the depot.
41 The plaintiff deposed that at the time the plaintiff signed his Claim for Compensation on 18 January 2006, he was in hospital undergoing surgery to his right arm which had been seriously infected. He was advised at that time by his surgeon that his whole body had been deeply infected and it may well be that he would be required to have his right arm amputated. The plaintiff was asked to complete a consent form allowing this procedure. He did so, but was at a later stage advised that another procedure was undertaken to allow his arm and body “to rid itself of the poison”. That procedure proved successful and, thankfully, the plaintiff was able to retain his right arm.
42 Since the said date, the plaintiff can recall that the following day, which was a Sunday, he worked all day, as he did on the Monday. The timesheet confirmed he continued to work from Monday, 9 January to Wednesday, 11 January. On both Thursday, 12 and Friday, 13 January, he had a rostered day off.
43 The plaintiff deposed that on 13 January 2006, the plaintiff was at home with his partner when they playfully carried out some arm wrestling but he did not strike his elbow on the corner of the table at that time.
44 In cross examination, the plaintiff said that when asked at Maitland Hospital if he had been doing anything differently lately, he told them he had been arm wrestling.
45 Following his two rostered days off, on 14 January 2006, the plaintiff then headed by arrangement to Tomago, New South Wales, to commence working.
46 On Sunday, 15 January 2006, whilst carrying out his usual work at Patterson, New South Wales, a town near Tomago, the plaintiff began to feel very ill and painful all over and he took himself to Maitland Hospital. The plaintiff cannot recall ever indicating to any doctor or hospital employee that he struck his elbow on a table.
47 After about two or three days at Maitland Hospital, the plaintiff was transferred to the John Hunter Hospital in Newcastle (“John Hunter”) where his right arm problem was diagnosed and he underwent several surgical procedures.
48 The surgery undertaken involved removal of muscle tissue and cleaning the infected area of his right arm.
49 On 18 January 2006, the plaintiff was treated by Dr Petrelis, orthopaedic surgeon, for an infected right arm for re-washout and VAC dressing. This procedure was repeated on 21 January 2006.
50 On 24 January 2006, the plaintiff underwent debridement and delayed closure of his right arm and re-application of VAC dressing. On 26 January 2006, the plaintiff underwent a partial closure and application of VAC dressing to his right arm.
51 The plaintiff remained an inpatient at John Hunter until 22 February 2006 whilst he underwent intensive care for his right arm.
52 In examination in chief, after having shown his scarring, the plaintiff explained that his arm remained open, draining for about eight weeks, and then was closed up on the medial side where there is the long thin scar.
53 On discharge from John Hunter on 22 February 2006, the plaintiff was sent to The Royal Melbourne Hospital, where he stayed for a week. After being discharged from The Royal Melbourne Hospital, the plaintiff received nursing care for about four weeks. The plaintiff has not received any medical treatment for his right arm condition from the Hospital since that time.
54 In about mid 2006, the plaintiff returned to work with the first defendant, initially on restricted duties, progressing to full time. Since re-commencing work, the plaintiff has not suffered any income loss and has continued working with the first defendant without a break. The plaintiff agreed in cross examination that his job gives him a sense of satisfaction and that he is one of the best excavator operators in the country.
55 The plaintiff’s right arm injury causes him pain on activity and often his arm cramps up. The pain is there just about all the time because he works more than twelve hours a day.
56 The plaintiff cannot use his dominant arm to lift any heavy weights from ground level, or hold heavy objects. Before the incident, the plaintiff could probably lift a 50-kilogram drum. He now could lift 10 kilograms but not hold the weight for long
57 As a result of his injury, the plaintiff has lost a considerable amount of power and grip strength in his right arm. He always has difficulty pulling himself up when he is climbing the steps of the excavator to get into the machine – something he has to do up to thirty times a day over long shifts of twelve to fourteen hours per day.
58 Nevertheless, the plaintiff does the best he can. It is simple, when he is sitting in the cabin, to use buttons operate the machine.
59 Because of his arm injury, the plaintiff is unable to do any on ground work, such as using a sledgehammer, or other tasks involved with railway work.
60 As a result of his injury, the plaintiff has lost a considerable amount of function in his right arm and is disfigured as a result of the scarring and loss of muscle tissue.
61 The plaintiff’s right arm was disfigured because of the surgical procedure. Its appearance, particularly behind just above the elbow, is crinkled and it is obvious that he has lost muscle tissue.
62 The plaintiff no longer wears t-shirts as they expose the area of the surgery. He feels quite embarrassed, and when he goes out, he wears a shirt covering the scarring because he is embarrassed of the odd comment from people about his appearance. These comments cause him a great deal of concern so he wears clothing not only to conceal the disfigurement but also to protect his arm from the sun to avoid cancer.
63 Also, the plaintiff avoids his right arm coming into contact with objects because it aggravates his pain.
64 The plaintiff now cannot get his arm around to his back as he did before the incident. This movement is painful and sometimes causes the plaintiff to cramp up if he scratches his back or when “wiping his behind”.
65 Until the end of last year, the plaintiff took Panadol for pain relief, but as these tablets do not help him, he no longer takes them and just puts up with the pain.
66 The plaintiff has ridden motor ridden bikes all his life. He presently rides a Harley-Davidson which he uses for transport, including recreational riding, except when he uses his work vehicle for work duties. Of recent times he has downsized the Harley because it was getting too big and cumbersome for him to handle.
67 The plaintiff also used to ride quad bikes and dirt bikes. In or about Christmas 2008, while riding his quad bike, his right arm cramped up and he was unable to straighten the steering and he fell off, breaking his collarbone. His arm was put in a sling in hospital. He has not had any problems with his collarbone since that time.
68 As a result of that accident, the plaintiff has given up riding both his quad and dirt bikes as he cannot steer and control them because of his right arm weakness and pain.
Investigations
69 An x-ray of the plaintiff’s right elbow taken at Maitland District Hospital on 15 January 2006 showed no evidence of fracture or dislocation and showed mild degenerative changes.
70 An ultrasound of the right forearm carried out at Maitland Hospital on 17 January 2006 showed an oedema within the subcutaneous tissue of the right forearm, appearances consistent with a history of cellulitis. There was no evidence of gas within the tissues of the right arm.
71 On 7 February 2006, under ultrasound control in the fluoroscopic suite, Dr Zentner placed a PICC line just above the right atrium.
Medico-Legal Examination
72 The plaintiff was examined at the request of his solicitors by Mr Donald Marshall, plastic and reconstructive surgeon, on 3 March 2009.
73 On examination, there was an extensive skin graft on the dorsum of the right arm, extending from the elbow upwards towards the shoulder joint. The graft was 15 centimetres long and 4 centimetres wide and was firmly attached to the underlying extensor muscle of the elbow as a result of the loss of subcutaneous tissue.
74 Mr Marshall noted there was alteration of sensation, pigmentation, hair growth and sweating in the area of the skin graft. There was a loss of some of the triceps muscle underlying the skin graft. There was weakness of extension of the right elbow as compared with the left. There was also a scar on the medial surface of the forearm which was 20 centimetres long and .2 centimetres wide and was well healed and mobile on the underlying tissue.
75 Mr Marshall reported the plaintiff complained of sensitivity and fragility of the skin graft on the right arm. Mr Marshall noted the graft required protection from injury and there was also weakness of extension of the right arm when compared to the left.
76 Mr Marshall diagnosed extensive skin graft and loss of part of the extensor muscle of the right elbow joint following a necrotising infection of the tissues of the right arm. He thought that situation was consistent with the alleged trauma.
77 In Mr Marshall’s view, the plaintiff’s long term prognosis was good and surgical treatment was not indicated. He thought the scarring would always be fragile and the present situation could be regarded as final, from the point of view of litigation, and that the plaintiff’s condition had stabilised.
78 Mr Marshall thought the plaintiff was fit for his pre-injury employment although his capacity had been reduced by his arm injury. He considered there were limitations in the plaintiff’s capacity for employment as a result of the fragility of the skin graft and the loss of strength in the right arm.
79 Mr Marshall noted the plaintiff was able to undertake his previous employment as an excavator operator but at a lesser efficiency than prior to injury. The plaintiff could do these duties with some protection of his right arm, and limitation of its use.
80 Mr Marshall thought the plaintiff was able to work full time providing he continued to protect the area of the skin graft. In Mr Marshall’s view, there was a significant loss of body function as a result of the injury in terms of the right arm.
81 A number of photographs of the plaintiff’s scarring were taken at Mr Marshall’s request at the time of this examination. The quality of such photographs is very poor.
82 During the hearing, I viewed the plaintiff’s upper body scarring. The plaintiff was heavily tattooed. There was very obvious scarring relating to the skin graft covering a large area over the back of the plaintiff’s right upper arm from the elbow upwards towards the shoulder joint. The scarring was thick and ugly and the surface of the skin was uneven. There was obvious muscle wasting. There was also a long thin surgical scar on the medial surface of the arm.
The Defendants’ Evidence
83 The defendants relied upon the Maitland Hospital Emergency triage notes dated 15 January 2006, in relation to which the plaintiff was cross examined.
84 An entry from the Royal Melbourne Hospital Clinical file dated 26 July 2006, was tendered setting out the plaintiff was certified fit to return to full duties and was discharged from the Hospital.
85 The plaintiff’s personnel records with the first defendant were tendered setting out the plaintiff was appointed a full time operator on 16 June 2004.
86 In an Occupational Health Questionnaire signed by the plaintiff on 15 April 2004 before he commenced employment with the first defendant, the plaintiff set out that he was previously employed by Coastal Bobcats, his own company. He answered “nil” to a question about previous employment history involving occupation, duties, duration of employment, exposure to chemicals or dusts or noise, and whether heavy lifting was involved.
87 The plaintiff also answered “no” to a question whether he had had any work- related injury or illness, any joint injury, pain, swelling or problem, and “no” to a question about any previous problem with his hand or arm.
88 The plaintiff explained that when he completed this form, the carpal tunnel procedure was many years ago and he was not having any problems with it so he did not think he needed to disclose it.
89 In an Assessment of Capacity to Work completed by the Bridge Street Clinic, and signed by the plaintiff on 23 April 2004, the plaintiff answered “no” to the question whether he had any health problems affecting his ability to do certain work.
90 An Incident/Accident Report dated 18 January 2006 was completed by Pamela Chamley. She set out the incident happened on 7 January 2006 at Victoria Street Station, Maitland, and was reported by the plaintiff to Danny Gallagher. The incident was described as follows:
“Driving excavator over uneven surface. Bumped elbow onto inside wall
of cabin. Blood infection resulted in hospitalisation.”
91 On this report form, there was a diagram and description of a laceration to the left elbow. It was noted that no treatment was initially received and that a large lump grew after one week and the plaintiff went to hospital due to a serious blood infection.
92 Details of the hours worked by the plaintiff from April 2004 to May 2010 were tendered. In cross examination, the plaintiff agreed that on average he worked 12 to 14 hours a day, six days a week, and he worked longer hours during “shutdowns”. The plaintiff has been able to work these hours without any medical restrictions placed on his duties.
Overview
93 I am satisfied that the plaintiff suffered a compensable injury on the said date.
94 Whilst there is some material from the Maitland Hospital which contains a history of the plaintiff hitting his elbow on a table or hurting it whilst playing with his partner, there are also a number of entries at the time of admission and at other stages during the plaintiff’s hospitalisation consistent with the plaintiff’s evidence as to the incident circumstances.
95 The Claim Form, completed by Pam Chamley and signed by the plaintiff’s brother whilst the plaintiff was in hospital in very dire circumstances, is clearly incorrect in a number of respects, particularly the reference to a left elbow injury and the incident circumstances.
96 Further, the plaintiff’s evidence that he reported the incident to his supervisor at the depot on the said date was not challenged by the defendants. Accordingly, I accept that it is likely the plaintiff’s injury occurred at the depot in the circumstances he described.
97 Given the serious and unusual nature of the plaintiff’s injury, I do not accept it would have resulted from arm wrestling with his partner or from a cut on the side of a table, reported by the Maitland Hospital to have happened a couple of days before his admission.
98 I am satisfied that whilst cleaning the excavator on the said date, the plaintiff suffered a cut to his right elbow, which he noticed at that time, but to which he did not attach much significance given the amount of dirt and grime on his clothing from both his work duties and the cleaning he was undertaking at the time.
99 Over the following days, the plaintiff developed a lump and increasing restriction of movement in his right arm, to the point that when he went to work on 15 January 2006, he was no longer able to continue working and attended the Maitland Hospital.
100 Whilst the defendants’ ultimate acceptance of liability for the plaintiff’s right elbow is arguably an admission as to compensable injury in the absence of any explanation why such payments were made – Ansett v Taylor [2006] VSCA 171 – it is not a matter in relation to which I attached any particular weight in this case.
101 Having found there is a compensable injury, the next issue for consideration is whether the impairment to the plaintiff’s right arm is “serious” in terms of loss of body function or disfigurement.
102 In submissions, counsel for the defendants relied upon the recent Court of Appeal decisions in Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Sabo v George Weston Foods [2009] VSCA 242; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 and Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260.
103 As the Court of Appeal has stated in these cases, a determination of serious injury involves a value judgment in which matters of fact, degree and of impression are operative: see also Dwyer v Calco Timbers Pty Ltd [2006] VSCA 187, at 41.
104 The Court must evaluate the consequences of the particular impairment and then make an objective determination by comparing the consequences with other cases in the range of possible impairments. In addition, the Court must be satisfied that the consequences are more than significant or marked.
105 Submitting that the consequences in this case were not serious, counsel for the defendants relied upon comments made as to the relevance of an ability to work full time and not being precluded from pursuing a career: see Stijepic v One Force Group Aust Pty Ltd & Anor, at paragraphs 46-47, and also Haden Engineering v McKinnon, at paragraph 15.
106 It was submitted by counsel for the defendants that the application should fail because the plaintiff does not suffer a substantial level of pain and he has need for only non-prescription medication: see Stijepic, at paragraph 48, and Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12, at paragraphs 46-50 and 75.
107 Whilst conceding it was not a template for serious injury, counsel for the defendants also relied upon the absence of the factors referred to by Maxwell, P in Haden Engineering Pty Ltd v McKinnon, at paragraph 16, including sleep disturbance, sexual difficulties and problems with the performance of household tasks in arguing the plaintiff’s impairment was not “serious”.
108 Counsel for the defendants conceded that whilst there were consequences of the plaintiff’s right arm condition, such consequences were not “serious”.
109 I accept the plaintiff as a truthful, honest witness who has worked on for years since the incident despite significant difficulties when using his dominant hand.
110 In my view, if anything, the plaintiff has understated the consequences of what was a frightening injury which required hospitalisation for a number of months, the reminders of which are with the plaintiff daily and will be so for the rest of his life.
111 Although the plaintiff has continued to work full time, often doing extensive overtime in his job as an excavator operator, I accept he has ongoing problems with work involving the use of his right hand. Although he can operate the controls in the cabin without difficulty, simply levering himself in and out of the cabin – something he has to do up to thirty times day –causes him pain.
112 Further, because of his right arm injury, the plaintiff’s ability to lift has been dramatically reduced from a pre-incident level of about 50 kilograms to about a limit of 10 kilograms at present, a weight he is unable to hold for a prolonged period.
113 With such a restriction, the plaintiff would be precluded from carrying out duties outside the excavator, such as normal railway duties involving the use of a sledgehammer. If he for some reason lost his present “easy job”, the plaintiff would be unable to engage in manual work
114 Whilst not specifying the range of activities with which he experiences difficulty because of his arm weakness and pain, it is clear from the plaintiff’s description of his work-related problems and his ongoing pain that he would have difficulty in performing normal daily tasks around the home and socially, as he was able to do prior to injury.
115 Further, whilst he was able to ride quad and dirt bikes with his arm condition, since having an accident in December 2008, when he lost control of his quad bike because his right arm collapsed, the plaintiff is no longer able to enjoy this activity which obviously formed his major source of recreation.
116 The plaintiff’s pain, whilst not constant, is there almost every day and is only absent if he does nothing with his hand.
117 No further treatment is available to the plaintiff, nor has any been suggested to him since he last saw nurses at home post discharge from The Royal Melbourne Hospital in mid 2006. Mr Marshall, the only medico-legal examiner, following examination of the plaintiff in March 2009, thought no further treatment could be provided as the plaintiff’s condition had stabilised and the state of the scarring was final.
118 In terms of ongoing medication, the plaintiff explained that having taken tablets for many years, they do not really help him so he no longer takes them and he just puts up with pain.
119 I am of the view that the loss of function experienced by the plaintiff in terms of pain and weakness affecting all daily activities is a serious consequence and one that is likely to continue into the foreseeable future.
120 Whilst the issue is seriousness is a matter for me, Mr Marshall’s examination findings and opinion is clearly supportive of such a finding and there is no medical evidence to the contrary.
121 Further, I consider the plaintiff’s disfigurement resulting from his surgical scarring is “serious”.
122 From my own visual inspection it was apparent that the scarring covers almost the entire part of the upper back of the plaintiff’s right arm from his armpit down to his elbow where the skin graft and drainage took place. The scarring is obvious, unsightly, quite wide and ugly. The scar and surrounding skin is sensitive and the plaintiff avoids it coming into contact with anything. His arm appears deformed as a result of wasting.
123 Significantly, the plaintiff is embarrassed by the scarring and although he is a man who obviously prided himself on his extensive tattooing, he no longer shows his tattooed arm because of his embarrassment at its appearance and the fact that it upsets him when people comment upon it.
124 To protect his arm from sun damage and to hide his embarrassment at the appearance of his arm, the plaintiff no longer wears t-shirts or singlets.
125 I am satisfied that these are relevant consequences in determining the plaintiff’s disfigurement is “serious” – see Ashley JA in Dwyer v Calco Timbers Pty Ltd (No 2), at paragraph 15.
126 Taking into account all of the evidence in this case, I am satisfied that the impairment to the plaintiff’s right arm satisfies the definition of “serious injury” pursuant to both clauses (a) and (b) of s.134AB of the Act.
127 Accordingly, I grant the plaintiff’s application to bring proceedings for damages for pain and suffering.
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