Grant v Hardwick Resources Pty Ltd

[2016] VCC 338

IN THE COUNTY COURT OF VICTORIA

AT BENDIGO

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-15-02701

MARK WAYNE GRANT	Plaintiff
v
HARDWICK RESOURCES PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Bendigo
DATE OF HEARING:	7 and 8 March 2016
DATE OF JUDGMENT:	4 April 2016
CASE MAY BE CITED AS:	Grant v Hardwick Resources Pty Ltd
MEDIUM NEUTRAL CITATION:	[2016] VCC 338

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:             Serious injury – impairment to the left arm – pain and suffering – loss of earning capacity

Legislation Cited:     Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)

Cases Cited:            Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Giankos v SPC Ardmona Operations Limited (No 2) [2009] VCC 1461; Herald & Weekly Times Ltd & Anor v Jessop [2014] VSCA 292; Hayhill v Hodge [2006] VSCA 194; Acir v Frosster Pty Ltd (2009) VSC 454; Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle (2009) VSCA 170

Judgment:Leave granted to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity. 

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Moulds QC with Ms M Lang	Arnold Dallas McPherson
For the Defendant	Mr W R Middleton QC with Mr N Kumar	Hall & Wilcox

HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 22 January 2013 (“the said date”).

2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).

3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:

“(a)   permanent serious impairment or loss of a body function.”

4       The body function relied upon in this application is the left upper limb.

5       Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

6       The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.

7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, s134AB(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.

8 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant or marked, and as being at least very considerable”.

9       I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

10      Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.

11      Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.

12      Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.

13      Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

14      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions. 

[1](2005) 14 VR 622

[2](2006) 14 VR 602

15      The plaintiff relied upon two affidavits and gave viva voce evidence.  He was cross-examined.  His partner, Elizabeth Wyatt, swore an affidavit and 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.

16      Whilst pain and suffering was not conceded by counsel for the defendant, it was submitted the real issue was that of pecuniary loss.[3] 

[3]Transcript (“T”) 9, T97

The Plaintiff’s evidence

17      The plaintiff is aged forty-six, having been born in January 1970.  He is a self-employed woodcutter and truck driver.  He lives with Elizabeth Wyatt, and her twelve and fourteen year old sons.

18      After Year 11, the plaintiff completed an apprenticeship as a motor mechanic.  He then worked as a beef boner in Kyneton for twelve years.

19      In 2006, the plaintiff obtained employment drilling for gas in Queensland and New South Wales, starting this role as an offsider and ending up as a drilling supervisor.

20      In cross-examination, the plaintiff confirmed he started the drilling job with Lucas Drilling (”Lucas”) through Greg Ellis.[4]  Mr Ellis was one of a number of superintendents, the level above supervisor.  The plaintiff started at the bottom of the “food chain” because he had not had any experience in the industry.[5]

[4]T15

[5]T16

21      In re-examination, the plaintiff described his progress through various positions at Lucas, starting as a lease hand working for about eighteen months in extremely heavy physical work.[6]

[6]T75

22      The plaintiff next went to the next level of pumpman and trainee driller.  He worked in this heavy physical work for about four to six months.  He then started drilling and progressed through the various levels to Level 3 over about twelve to eighteen months.  Being a driller involved heavy physical work and a lot of manual handling.[7]

[7]T76

23      The plaintiff then worked as a supervisor, Level 2, for a couple of years.  In that role, he was required to fill in for drillers and do all the other tasks that workers down the line had to do.  That was heavy hands-on work.[8]

[8]T77

24      In October 2011, because of marital problems, the plaintiff left fly-in/fly-out work drilling to stay in central Victoria.  He last worked at Lucas on 30 October 2011, then used up his entitlements.[9]

[9]T21

25      On his return to Victoria, having worked initially as a tree lopper, the plaintiff then obtained work with the defendant at its Kyneton abattoir (“the abattoir”).

26      The plaintiff’s marital relationship had broken down, as his previous drilling work and consequent time away from home caused problems, compounding the breakdown and potentially affecting his access to his children.

27      The plaintiff had intended to return to drilling work, either interstate or fly-in/fly-out, once his family matters had settled.

28      As at the said date, the plaintiff had not long previously separated from his wife.  He lived on his parents’ farm at Drummond and had regular contact with his children. 

Activities prior to the said date

29      Before suffering injury on the said date, the plaintiff was very fit and led a very physical lifestyle.

30      The plaintiff was passionate about fishing and often took his family camping on the Murray and to lakes in central Victoria.  He also fished in the Northern Territory and loved all types of fishing.

31      The plaintiff regularly rode motorbikes and a trailbike.  He often rode his trailbike around his parents’ farm, where he went for day rides in the bush with mates. His teenage son had his own trailbike and they often went riding together.

32      The plaintiff was also very serious about road riding and owned a Harley Davidson and rode with mates on long trips of 400 to 500 kilometres over a weekend.

33      Originally the plaintiff and his wife had built their house at Drummond.  He did all the painting and landscaping and he worked hard to develop the land, including doing all the fencing and chain saw work.

34      Prior to the said date, the plaintiff also helped his father a lot in his firewood business.  In his spare time, the plaintiff travelled to New South Wales to cut and collect red gum and bring it back to his father’s depot (“the depot”).  At the depot, the plaintiff ran the wood splitter which was very physical work but kept him fit and healthy.

The incident

35      On the said date, the plaintiff was boning meat that was far too hard to be boned. Whilst cutting down, the knife he was using hit a soft part of the carcass and slipped through and onto his left forearm (“the incident”).

36      The plaintiff immediately felt an electric shock radiating up his left thumb and numbness in his forearm. He was taken to the work doctor, Dr Priest, in Kyneton, who sutured his left arm and gave him two days off work.

37      The pain and numbness persisted and the plaintiff knew something was not right.  He went back to Dr Priest that day as the numbness became constant.  He told Dr Priest he thought there was something seriously wrong and was referred by him to Mr Thomas, surgeon, whom the plaintiff saw at Epworth later day. 

38      Mr Thomas operated immediately and the plaintiff discovered he had completely severed the superficial radial nerve, the radial artery and two radial veins.

39      On discharge from hospital, the plaintiff’s arm was in a splint.  He was given exercises and treatment from a hand therapist.

Drilling work

40      Post incident, in 2012, the plaintiff had been sought out by his former colleague, Mr Ellis, to work as a driller and potential supervisor at Lucas. 

41      The plaintiff had left Lucas on good terms and always intended to return to drilling.  He believed he was well regarded within the industry.  Had he not been injured, the plaintiff intended to return to drilling once his marital situation settled down.

42      The plaintiff initiated the contact with Mr Ellis in mid 2012 by telephone. He asked him what jobs were available, and, if there was a position, when he could start.  Mr Ellis was pretty efficient, and it was probably a week before he emailed the plaintiff.[10]

[10]T28

43      The plaintiff could recall Mr Ellis emailing him in early July 2012 regarding available positions for him. The email was addressed to “Jimmy” – the plaintiff’s nickname – and sent to the plaintiff’s friend, Anne Marie.[11]

[11]T13

44      One position mentioned by Mr Ellis was non-supervisory work which involved a salary of $113,584 gross per annum ($2,184 per week).  Mr Ellis also indicated a supervisory role would be available similar to the plaintiff’s previous role of supervisor Level 2 that paid $137,256 ($2,340 per week) and a shift allowance of $16,425. The plaintiff thought he would return to Lucas at this level.[12]

[12]T14

45      It was up to the plaintiff at what level he wanted to work.  Unfortunately, he could not take the offer up immediately as his matrimonial issues were then ongoing.

46      The plaintiff agreed he asked Mr Ellis for the details of other jobs besides a supervisor.[13]

[13]T29

47      The plaintiff replied to Mr Ellis’ email via phone.  The plaintiff asked him about the Supervisor 2 role that was available.  The plaintiff told him he would take it once his “legal stuff” was sorted.[14]

[14]T30

48      Throughout 2012, the plaintiff kept Mr Ellis updated as to what was happening.[15] He probably spoke to him about half a dozen times after the email when he knew how things were progressing.[16]

[15]T34

[16]T38

49      The plaintiff agreed Mr Ellis told him about a hiring freeze.[17]  He told the plaintiff there was to be a short term between contracts.  On several occasions, he just told the plaintiff to contact him when his matters were sorted out.[18] Mr Ellis had some control over the plaintiff’s appointment.[19]

[17]T48

[18]T49

[19]T30

50      The plaintiff spoke to Mr Ellis after the incident about work at Lucas but not about returning to Lucas as he could not return because of his injury.[20]

[20]T50

51      Besides the contact with Mr Ellis, the plaintiff had not thought about any other jobs in the mining industry.[21]

[21]T35

52      The plaintiff ceased work with Lucas in about October 2011 when he formally resigned and returned to Victoria.[22]  He was then working even time, ten days on/ten days off, on different contracts.[23]

[22]T16

[23]T17

53      The plaintiff agreed he worked pretty long hours as a Level 2 supervisor, sometimes working shifts of up to 22 hours, working for 12 hours, and being on call for the balance of the shift.  He disagreed that workload was starting to cause him to feel a bit down.[24]

[24]T18

54      The plaintiff agreed he ceased drilling and decided to come back to Victoria when he became aware of problems with his marriage.  These problems had been going on for only a few months.  In about the middle of 2011, he received a telephone call which was “the biggest shock to the system”.[25]

[25]T18

55      The plaintiff was cross-examined in relation to a number of clinical notes of his attendances with his general practitioner, Dr Dale, in late 2011-early 2012.

56      Dr Dale noted, on 4 November 2011:

“He states that his wife has left him, she’s had an affair, he has the kids, he cannot eat, cannot sleep, everywhere he looks he feels sad, early and middle insomnia, he states this is his wife’s third affair, the kids have told him that the other party has been around for a while and he’s into smoking and drugs, he doesn’t want the kids in that environment, she doesn’t cook or clean or bath the kids if Mark is home from the mine (he does that).  She’s agreed to go to three marriage counselling sessions.  He’s lost 7 kg.”

57      This note was accurate save for the mention of housework as the plaintiff did most of the housework when he was back from the mine.  He agreed he had some concerns about the environment his children were living in while he was working in Queensland.[26]

[26]T20

58      The note of 18 November 2011 set out:

“Poor sleep, early and middle insomnia, reduced appetite, he’s still in the house, he states he’s trying to stay friends, the house is on the market, low motivation, he states he still feels jealous feeling (sic), he’s having trouble accepting that it’s over after 23 years, he didn’t take Temaze, he doesn’t feel he can trust his ex‑wife to tell him everything.”

59      This note was correct.  The house was then on the market, after a joint decision to sell.  It was sold at the end of 2012.  There was also a distribution of assets and motor vehicles.[27]

[27]T22

60      A note of 2 December 2011 set out:

“Some days are better than others, ...  Mark doesn’t think he’ll continue working away, he’s worried that he’s going to snap at people, he is a supervisor, HR have suggested filing work in the office and he doesn’t think he could cope with that, waking multiple times at night.  Diagnosis was bereavement re loss of a relationship.”

61      This note was correct.  The plaintiff disagreed that at that time he was leaning to not going back to Queensland.  There was a lot happening at that time.  The plaintiff could probably have been worried that he would snap at people.[28]

[28]T23

62      Lucas had wanted to try to keep the plaintiff on but he turned that work down because of his situation at that time.  He then wanted to stay in Victoria to “sort stuff out”, and at that stage, look after his children.[29]

[29]T24

63      The note of 12 January 2012 read:

“He states that he couldn’t face going back to working away, he still has sick leave owing and he has annual leave, work wants him to go to Queensland to work but he doesn’t have the concentration to do this, he states he started working away for him and Irene but now they are not together there’s no point in working away, he wants to move close by so he can have access to the kids.”

64      The plaintiff agreed it was probably right at that time that he could not face going back to work in Queensland.  He had “a lot of stuff going on in his head”.[30]

[30]T25

65      The plaintiff agreed that maybe at mid January 2012, he had no intention to return to Queensland, and at that stage, thought there was no point doing so because his marriage had broken up.  Further, he thought it was important to be near his children on an ongoing basis.[31]

[31]T27

66      The plaintiff intended to go back to Lucas and after he did so, he wanted to be somewhere near his children and stay close to them on his breaks.[32]

[32]T26

67      The plaintiff agreed he started work with the defendant shortly after this discussion with Dr Dale in about late January 2012.

68      The plaintiff worked two to three days a week whenever the defendant required him.  It was casual employment, and then became fairly consistent.  On other days, the plaintiff helped his father in his wood business, splitting wood and driving his delivery truck if his father was not using it.  The plaintiff then lived with his father and did not get paid for working for him.[33]

[33]T27

The Family Law matter

69      As of July 2012, the family home was on the market and the plaintiff was dealing with solicitors.  Family Court proceedings were issued in 2013.[34]

[34]T31

70      The plaintiff left these matters with his solicitors.  His wife and children had moved to Malmsbury.  The arrangement then was for fortnightly access to his children.[35]  There was the house sale to be sorted out, the mortgage paid out and “all the things that come with that situation”.[36]

[35]T32

[36]T33

71      The plaintiff agreed he could have been available by telephone to deal with Family Law matters if he was working in Queensland.  He knew what his program was unless he filled in for someone else.[37] 

[37]T45

72      The plaintiff agreed the property was split 60/40, with the main source of funds being from the house sale, and really no other assets apart from the car.  There was also a simple split of his superannuation.[38]

[38]T47

73      When it was suggested to the plaintiff, when waiting for the house to be sold and the children’s situation had been sorted out, if he really intended to go back to fly-in/fly-out he would have done so in mid 2012, he explained:

“You just can’t walk away from a drill rig in a multi-million dollar contract because I’ve got court proceedings or I’ve got family issues to sort.  There could have been court proceedings at any time.”[39]

[39]T32

74      The plaintiff further explained to work as a supervisor, he had to have full concentration:

“I can’t – you can’t go into that job role and have all this stuff on your mind about sales of houses and everything else and then whether you’re gonna have to leave there the next day to come home to do something.  You can’t do that.”[40]

[40]T34

75      The plaintiff denied that his intention following his return from Queensland was to stay in the vicinity of his children and make sure he was close to them.[41]

[41]T34

76      Dr Dale’s note of 29 October 2013 read:

“He says he’s come to discuss his son Darcy who’s been lying at school following the separation of his parents, he’s hoping his parents will get back together again, he wants to know if he can have a referral to psychologist Ron Ingham, he is telling stories to make himself appear better than he is, example offering to fix another child’s iPod but told Dad that he found the iPod and wants to get them fixed and make money, he’s with Dad 70 per cent of the time and with Mum 30 per cent of the time, Dad’s new partner Liz says Darcy lacks empathy.”

77      The plaintiff agreed there were problems with his son, Darcy.  Access to Darcy had then been varied on a temporary basis, with the plaintiff having him 70 per cent of the time and his ex-wife, the balance.[42]  The plaintiff denied that the issue with Darcy was one where he would need to be and want to be, in Victoria to manage:  “At that stage Liz had it all under control.”[43] 

[42]T36

[43]T37

78      The plaintiff denied that working time off and on there would be problems with access to his children. Working fly-in/fly-out, he would be home every fortnight and contact with his children could continue.

79      The plaintiff agreed he did not tell medical examiners of his intention to return to drilling work and first mentioned this issue in his affidavit.  He denied that this was because he did not have any real intention of returning to the mines.[44]

[44]T51

Return to work with the Defendant

80      The plaintiff remained off work until 3 March 2013 and was then put on modified duties including slicing.  By about June 2013, he was able to return to boning.  However, it was impossible to do anywhere near his pre-injury workload.

81      Pre-incident, the plaintiff regularly boned up to 75 quarters of beef a day but the maximum he could then manage was 25, although it was often a lot less.  He had no strength in his left arm, which was the arm that did a lot of the work lifting, holding and turning to break the carcass down.

82      The plaintiff agreed that his pre-injury tally was 40 carcasses.  Post injury, he was able to do 25 and could not remember having done 30.  Some days his duties were just slicing, working under a return to work program.[45] 

[45]T41

83      The plaintiff persisted with abattoir work, although he experienced constant numbness from his forearm to his thumb, index and middle fingers with hypersensitivity and swelling.  He regularly injured himself, suffering blisters, burns and cuts, because he could not feel his left arm properly.[46]

[46]T41

84      The plaintiff had pain and stiffness in his left wrist, together with a shooting and electric-shock-like pain radiating down his arm into his left hand when he experienced even light touch or pressure on his forearm.

85      The plaintiff went back to Mr Thomas, who recommended further surgery.

86      The plaintiff worked 4 hours a day, three days a week until 25 July 2013, when he had a second operation which involved a neurolysis and wrapping of the nerve.  He also had a carpal tunnel release to try and get the blood flowing into his fingers (“the second surgery”).

87      The second surgery was not a success and the plaintiff continued to suffer ongoing pain, electric shock sensations, numbness and a lack of strength in his left hand.

88      After about six weeks off work, the plaintiff returned on 4 September 2013, working 4 hours per week doing mostly slicing, and eventually managed to do some boning for short periods only.  After he returned to work, his left arm muscles became easily fatigued.

89      At the end of 2013, the plaintiff went back to Mr Thomas, who advised him there was nothing further that could be done and he would have to get used to permanent weakness and loss of strength, together with ongoing pain. 

90      At the end of 2013 into 2014, the plaintiff continued to perform modified duties slicing and doing some boning.  Although he managed to return to full hours, he was never able to return to full boning duties. 

91      Towards the end of 2013, the plaintiff started to attend his general practitioner, Dr Dale, in Castlemaine.  Mr Thomas recommended the plaintiff attend pain management but that had not occurred as WorkCover had denied funding.

92      The plaintiff resigned from the defendant when it became clear he would be permanently unable to return to any normal boning work.

93      The plaintiff verbally resigned, mainly because he could not bone.[47]  He did not tell the defendant that he was losing too much money in the wood yard and could not keep up with deliveries.  He told the defendant he could not bone and it was aware of this situation.

[47]T42

94      The defendant chased up the plaintiff, asking if he was going to resign.  He resigned verbally around 25 March 2014 and was not prepared to sign a written resignation.[48] 

[48]T52

95      Before his resignation, there was a period when the plaintiff was not working.  He agreed with the wage records that set out his last pay week ended on 14 March.  He was usually paid about $600 a week;[49] however, there were some periods when he earned very little.[50]

[49]T55

[50]T56

96      As at the time he resigned, the plaintiff had not returned to full-time boning.  He was just slicing and doing some boning. The defendant had really made a job for him.[51]  There were days he could not work because of his injury.[52]

[51]T78

[52]T58

The firewood work

97      Post-injury, the plaintiff could not assist his father in the firewood business to the same level as was the case pre injury.[53]

[53]T40

98      Pre incident, when he worked for his father, it was nothing for the plaintiff to work all day on the splitter but he could now only do an hour or so before resting.  As of January 2015, sometimes on larger logs, the plaintiff could only work for about 20 minutes.  He found that after a solid day at work, he woke four to five times a night with left arm pain and had to then try to move around until the arm pain ceased. 

99      After he resigned from the defendant, the plaintiff bought a truck to cart firewood full time because he could not bone beef anymore.[54]  He focussed on this new business because he could not bone.[55]  He had been told his arm would not improve and that he had no future as a boner.[56]

[54]T62

[55]T63

[56]T79

100     In addition to his driving work, the plaintiff helped his father performing work on the splitter.  Running his own business gave the plaintiff a chance to rest when he could no longer tolerate his left arm pain.  He generally alternated his jobs and rested in between jobs.

101     The plaintiff thought he purchased the truck after he resigned from the defendant.  However, when shown his 2014 taxation return, he agreed it showed he bought a Gorski dog trailer and hard-drive on 30 September 2013.[57]

[57]T43

102     The plaintiff disagreed that by the time he resigned in March 2014, he was already doing delivery work with his father.  The truck he had purchased needed modifications and a lot of work before being used.[58] On the second day of hearing, the plaintiff confirmed his first run with the truck was on 28 February 2014.[59]

[58]T43

[59]T79

Current work

103     The plaintiff continues to work carting firewood.  He picks up from the woodcutter and delivers it to the depot. The trailer is loaded for him at the woodcutter.  The plaintiff levels out the load and transports it.  When he gets to the depot, he tips the load out.

104     The plaintiff’s father splits the wood and the plaintiff helps him when he can with the splitter and other jobs in the yard, as the quicker he splits, the more wood can be carted.  The plaintiff tends to help more in the summer as in the winter there is constant carting required.

105     There are days when the plaintiff can work for quite some time in these tasks without a break.  However, on bad days he has to rest after loading and unloading.  He takes breaks whilst driving, particularly on bad days, as his arm pain usually increases after a few hours’ driving.

106     Pre injury, the plaintiff could split wood all day nonstop.  Even now with the new splitter, the plaintiff can only operate it at half his father’s pace and efficiency.[60]  Further, he is not in the yard helping his father anywhere near the level he did pre injury.[61]

[60]T69

[61]T60

107     The plaintiff is not able to do machine maintenance.  He is always conscious of the position of his left arm and whether he is going to hit it or what is going to happen that night if he has to drive the next day.[62]

[62]T61

108     Carting firewood is full-time seasonal work, mainly in the winter.  In the week before the hearing, the plaintiff did not work at all.[63]  He cannot work for other contractors, as he is too tired from driving his own truck.  He has to be able to comply with his contract.  He does not get enough sleep and that is a problem when driving.  He agreed he did not have problems with his arm when driving out on the open road as he could rest it and did not have to change gears as frequently.[64]

[63]T63

[64]T64

109     The plaintiff’s income was $29,579.00 in the financial year ending 30 June 2015.  His accountant did the books.  This summer has been a lot quieter than in the last financial year, so the plaintiff was not actually sure of his present earnings.[65]

[65]T65

Surveillance

110     The plaintiff was shown on 14 October 2015 working at the depot. He was shovelling some woodchips from underneath the splitter.[66]  At one stage, he was shown squatting next to the splitter.  He explained that probably one of the arms had come off underneath that machine so he was just assessing it. 

[66]T65

111     The plaintiff was shown driving an articulated loader in which he transported logs to the splitter.  The wood was scooped from a woodpile and loaded onto the truck.  A couple of times the plaintiff stood on the side of the loader, holding onto it with his left hand and used his right hand to spread out the load to make sure it was evenly distributed.

112     When he used the splitter, the plaintiff mainly used his right hand and he was very cautious of the position of his left.  He agreed however that he handled wood with both hands.[67]

[67]T68

113     The plaintiff drives his truck mainly on the highway and open road.  He can steer with his right hand.  Once in top gear, he does not have to use his left hand and rests his arm on the armrest.[68]

[68]T75

114     The plaintiff carries on business under the name “Jim Billy Cartage”.  He drives in the general vicinity of southern New South Wales, Swan Hill and Mathoura, where the red gum is located.  He drives to those areas and picks it up.  He pulls up at a loading ramp, and if he is tired, he has a sleep in the bunk of the truck.  He gets tired because of pain in his arm and the electric shocks. 

115     Loading of the wood is done automatically.[69]  In the plaintiff’s present role, there is very little manual work and what was shown on the film were typical activities.[70]

[69]T80

[70]T81

116     The more carting the plaintiff does in the winter, the less activities he can do on the weekends.  He tries to relax and sleep as much as he can.  He probably wastes about 25 per cent of possible work hours resting when he could be driving.[71]

[71]T84

Pain

117     In his first affidavit, the plaintiff described how the incident had had a dreadful effect upon his life.  Even after treatment, he continued to suffer ongoing electric shocks, particularly if he hit his arm above the elbow or overdid it.  The shocks travelled down his arm, and in parts of his forearm, he had ongoing numbness and a lack of feeling.

118     The electric shocks often happened without warning.  The plaintiff had instances where his children came to cuddle him and he threw his arms out after suffering a shock, and that upset him.

119     The plaintiff had very little feeling in his left forefinger, index finger or thumb, and he had little feeling on the back of the digits.

120     The plaintiff disagreed with Dr Brown’s description in April 2013 of the plaintiff having “some discomfort” towards the end of the day.  There was discomfort throughout the day.[72]

[72]T39

121     The plaintiff deposed on 2 February 2016, that the arm injury continues to cause him significant pain.  He has good and bad days and suffers from weakness, loss of motor function and strength.

122     The plaintiff believes on average he has three to four bad days each week, and these can sometimes be consecutive. His arm pain tends to be worse in the cold weather.

123     The plaintiff continues to have little feeling in his left forefinger, index finger and thumb.  He experiences ongoing pain and numbness.  Electric shocks continue that are reasonably frequent and occur every day.  They can happen seemingly completely at random but tend to be more frequent with use of his arm.  The plaintiff is constantly worried about his arm, as even the slightest bump can trigger pain and neurological sensations. 

124     Sleep continues to be an issue and is often disturbed due to pain and electric shock.  The plaintiff rarely gets a full night’s sleep.  On a bad night, he still wakes three to four times.  If his pain is particularly bad, he gets up and sits in the lounge room until it subsides.  It takes anything from half an hour to two hours to go back to sleep.  He has had to change sides of the bed as it was too easy for his partner to hit his arm accidentally, which would set off his pain.

125     The plaintiff was previously prescribed Temazepam to help him with matrimonial stress in November 2011.  He did not take it because he does not like taking medication.[73]

[73]T77

Activities

126     In his first affidavit, the plaintiff described how his recreational activities were once such an important part of his life.  These were no longer enjoyable for him.  He was only able to have a gentle kick of football with his son and not a proper game because he could not catch the ball without his left hand suffering the electric-shock-type feelings, and he also had to avoid tackling.

127     The plaintiff was unable to participate in a volleyball day with his son in Easter 2014 and had to sit on the sideline.  That was very upsetting for both of them.

128     In the past, the plaintiff had built a GT Falcon.  Now, to work on his car took a huge amount of time because he was unable to feel the nuts and bolts with his left hand.  A few months earlier when soldering, he burnt his left hand because he could not feel the soldering iron coming into contact with it.

129     Since the incident, the plaintiff sold his trailbike.  He last attempted to go riding about ten months ago but after about half an hour, his arm pain became acute and he could not continue.  The plaintiff’s son still has a trailbike but the plaintiff cannot ride with him.

130     The plaintiff persisted with fishing post incident but it was more difficult and cumbersome.  He experienced severe left arm when he needed to use his arm to land a fish or unsnag a hook.

131     Although the family still went water skiing, the plaintiff elected to drive the boat with his children on the ski biscuit.  He had tried to ride on the biscuit but doing so caused a severe aggravation of his left arm pain.

132     The plaintiff rented a house at Glenlyon with his current partner on a half-acre block.  After they moved in he tried to use a mower.  The vibrations of the mower caused his pain to worsen.  He restricted himself to using a ride-on mower caused less vibration.  Similarly, using a Whipper Snipper was a problem.  He had managed to use a chainsaw but if he used one for long periods he became fatigued and his pain level increased. 

133     Throughout his life the plaintiff had been very independent and self-reliant.  He enjoyed being a physical person with outdoor pursuits.  Although he persisted in trying to return to activities post injury as best he could, the ongoing pain, numbness and electric shocks had taken from him the enjoyment he experienced in so many different areas of his life pre injury.

134     The plaintiff recently deposed that as a result of his injury, he has lost a lot of interest in motor sport, particularly working on cars and with trailbike riding, as he could not participate in these activities the way he used to.  These sports were a shared interest for the plaintiff and his son.  This situation saddens the plaintiff immensely.

135     The plaintiff continues to have major difficulties working on cars which was previously his profession and a hobby.  He continues to do what he can on his cars but there are some things he cannot do.  He cannot service his partner’s Rav 4 as the components are too difficult to access with his injury and he had to take the vehicle to Castlemaine for servicing. 

136     Because the plaintiff is a perfectionist, it annoys him that he cannot now get his arm into position to do various tasks.  Doing mechanical work often requires him to jam his arm into places where he cannot see. There is constantly a lack of feeling in his arm and he burnt himself with a soldering iron.  He has also injured himself in other ways, knocking off his fingernail when he lost grip on a block of wood, crushing his finger.[74]

[74]T83

137     The plaintiff can service some of his own other vehicles but he is very slow.  Recently, in November 2015, the bottom radiator hose on his truck blew when he was near Swan Hill and needed replacing.  Had he not been injured, he would have had no difficulty replacing it himself.  Instead, he had to wait about 2.5 hours for help to arrive.

138     The plaintiff’s recreational activities continue to be affected.  He still tries activities like fishing and riding his road bike, but he must to be cautious about how he uses his arm.  He no longer plays golf.

139     The plaintiff confirmed he still rides his Harley Davidson with his partner and they ride together, with her on her bike.  In re-examination, the plaintiff explained he does not go on long trips on the Harley because doing so aggravates his arm pain.

140     The plaintiff sold his trailbike before the second operation.  He had ridden once post injury but it was too painful to continue.

141     The plaintiff still helps around the house and garden when he can.[75]

[75]T73

142     The plaintiff has three children, who live with his ex-wife: his son, aged sixteen, and twin daughters, aged fourteen.  He sees them fortnightly.  The plaintiff has four stepchildren, two of whom still live at home with he and his partner.

143     The plaintiff has trouble playing with all of his children.  He has to be cautious about hitting his left arm.  He avoids sporting activities with them as he is worried about further injury. If he has a kick of the football, he avoids using his arm.  Even the simple act of hugging can trigger pain and electric shocks so he has to be very careful when doing so.

144     The plaintiff has gained weight as he is no longer as physically active as he used to be due to his injury.

Current work capacity

145     As a result of his injury, the plaintiff is permanently incapacitated from returning to drilling work because he would not be able to handle the pain from vibrating tools, the fatigue from 12-hour shifts and the risk of injury due to lack of feeling in his left hand.

146     The plaintiff’s overall fatigue and problems with concentration would also preclude him doing that drilling work due to long shifts.

147     The plaintiff is unable to return to boning and has not been able to return to drilling.  Both are very physical work.[76]

[76]T78

148     In the past when the plaintiff worked as a supervisor, there was also “hands-on” work.  It would not be unusual for ten days on, ten days off, 12 hours per day, which was standard fly-in/fly-out work.  The plaintiff could work up to 21 days in a row.  Given his injuries, he certainly did not believe he would be able to work in this manner, especially day after day for the long hours required.

149     Further, the plaintiff did not believe he would pass any medical that would be required before re-employment as a driller.  He was very worried with the lack of feeling in his arm, problems with concentration and fatigue, and that his work injury could ultimately cause a very serious accident due to his inability to use his left arm properly.

150     The plaintiff disagreed that he had pretty good function of his left arm.  He denied he could do a fly-in/fly-out job if he could find one.[77]

[77]T74

Further treatment

151     The plaintiff has been told previously there is little further that can be done in relation to his arm injury and effectively he would have to live with it.  Therefore, he has not sought anything further in the way of medical treatment and has accepted his arm is as good as it is going to get.

152     Despite this, the plaintiff understands a further surgical procedure has recently been recommended by Mr Behan. 

153     The plaintiff does not intend to have the surgery or speak to his doctor about it as previous operations have not been successful and have made his pain worse and he is not prepared to take the risk. [78]

[78]T70

154     The plaintiff has not discussed with his general practitioner neuropathic pain medication that was suggested by Professor Bittar. The plaintiff does not like taking drugs because he drives a truck and he believes most medication will affect his ability to drive. He last took Voltaren Rapid some months ago.

155     The plaintiff has just been told that his arm condition will not change.  It is what it is.  The last surgery made it worse.  He disputed he could cope with the residual symptoms.  He copes the best he can.[79]  He works when the work is available and he is able to do it.  Some days he cannot work because of his arm pain.  He has problems with ongoing sleep deprivation, which affects everything.  There is pain when doing things, “affecting everything”.[80]

[79]T71

[80]T72

156     Overall, the plaintiff’s injury has not improved in the past year and he continues to suffer from the same problems described in his first affidavit.

Family Court

157     A Family Court Order of 6 March 2013 set out the distribution of funds between the plaintiff and his ex wife on a 60/40 basis with a sum also to be paid to her from the plaintiff’s superannuation policy.

Summary of the plaintiff’s income

Financial year ending 30 June	Gross earnings
2008	$63,653.00
2009	$118,076.00
2010	$121,846.00
2011	$123,184.00
2012	*$109,608.00
2013	$30,722.00
2014	$20,914.00
2015	$29,579.00

* $98.094.00 Lucas to October 2011

Lay evidence 

158     Greg Ellis, drilling superintendent with Lucas, swore an affidavit on 1 February 2016. He has known the plaintiff since around 2006.  He was then the supervisor, and recommended the plaintiff to the job with Lucas.

159     The plaintiff started work as a drilling offsider, which was a lowly ranked position, but he proved to be an excellent employee and was gradually promoted over time, eventually to supervisor. 

160     The plaintiff was one of Lucas’s best drillers and was an exceptional supervisor.  Depending on which rig he was assigned, he generally worked 12-hour shifts of twenty days on, ten days off; eleven days on, eleven days off; seven days on, seven days off; fourteen days on, fourteen days off.  He would also be supervisor for 12 hours he was off shift.

161     In about early 2011, Mr Ellis understood the plaintiff had some family difficulties which involved separation and eventual divorce.  As a result, the plaintiff was no longer able to work on a fly-in/fly-out basis and had to cease work with Lucas. 

162     Mr Ellis could remember speaking to the plaintiff in mid 2012 to discuss options of returning to the supervisor role.  Mr Ellis was certainly happy to find a position for the plaintiff and recalled providing him pay rates and other information regarding a position, by way of email of 9 July 2012, together with some attachments.

163     Mr Ellis found the job as a senior driller with the possibility of returning to supervisor in the future.  The job was twelve days on, twelve days off; fourteen days on, fourteen days off.  Most of the work was quite manual.  The plaintiff was continuing to sort out the family issues then, and therefore could not return to Lucas straight away, so the position was put off temporarily.

164     About eight weeks after that email, there was a major slowdown in the commodities market and a freeze was put on any hiring at Lucas.  That meant the plaintiff could not be re-employed.  That freeze lasted about eight months.  Since that time, however, Mr Ellis was confident had the plaintiff not suffered injury, he would have walked back into the drilling position with Lucas.

165     Mr Ellis was aware of the plaintiff’s left arm injury and the plaintiff explained to him he did not think he would be able to return to drilling but was still hopeful.

166     As a supervisor, the plaintiff would also be required to step in and operate the drill, excavator, loader and trucks at any time.

167     If the plaintiff was to reapply at Lucas, he would be put through a thorough medical and would not be employed if his arm injury caused problems with his ability to operate and maintain machinery, even with his exceptional work history.

168     Mr Ellis believed that with the plaintiff’s problems with strength, dexterity and functionality, Lucas and other companies would be reluctant to employ him and he would be effectively unemployable as a driller. 

169     The plaintiff’s present partner, Elizabeth Wyatt, swore an affidavit on 2 March 2016. She lives with the plaintiff and two of her children.

170     Ms Wyatt met the plaintiff about three and a half years ago and began a relationship with him in around 8 November 2012.  During that time, she was aware the plaintiff was in the process of finalising his separation from his ex wife.

171     Ms Wyatt and the plaintiff were very compatible, and she was separating at that time from her now former husband.

172     The plaintiff was then working as a boner, and told her he had previously worked as a fly-in/fly-out drilling supervisor in Queensland.  She also recalled he told her he intended to return to drilling work once the separation was finalised.  She recalled discussing this topic quite frankly with the plaintiff at an early stage before they committed to their relationship.

173     Ms Wyatt understood that in the plaintiff’s view, this work was a major factor in his separation, and he wanted to be upfront that this was the work he wanted to pursue.  If that did not suit her, the plaintiff was clear there was little point in pursuing their relationship further.

174     Ms Wyatt had grown up in a household where her father worked one to six months at a time away from the family.  As such, she had a good insight into what this work would mean, especially regarding absences from home.

175     Ms Wyatt would have been happy for the plaintiff to work this way.  She did not see it as any reason not to continue with the relationship.

176     Ms Wyatt frequently notices the plaintiff is uncomfortable as a result of his arm injury, and he is plainly in pain.  He wakes most nights due to pain, and sometimes even leaves the bedroom.  That frequent waking causes him to be constantly tired.  They have had to swap sides of the bed because she used to occasionally knock his arm, waking him.

177     The plaintiff works carting truckloads of firewood for his father.  There are frequently times when the plaintiff comes home from work and is plainly in pain.  She can see the effects of his injury on him almost every day, and it is upsetting for her to see him like that.

178     Ms Wyatt, was cross-examined.  She confirmed the contents of her affidavit.  She knew what the fly-in/fly-out job involved, although she did not know where in Queensland the plaintiff was to work.[81]  She did know the hours on, hours off arrangement and thought that that could continue indefinitely.  She was happy to embark upon a relationship where the plaintiff could be away for ten to twenty one days for the rest of his working life.[82]

[81]T87

[82]T89

179     Ms Wyatt was not present at the early attendances with Dr Dale and she did not know anything about the plaintiff telling Dr Dale that he did not intend to go back to Queensland.  The plaintiff never discussed that with her, nor did he mention that there was no point going back to Queensland because that was the real issue when he was with his wife.[83]

[83]T90

180     As far as Ms Wyatt was concerned, the plaintiff had a verbal arrangement about access to his children.  He was allowed to visit them when his ex-wife was willing to allow the children to come and see him.[84]

[84]T91

181     Ms Wyatt could recall going to Dr Dale and discussing problems with the plaintiff’s son, Darcy.  She disagreed that that was a good reason for the plaintiff to want to stay in Victoria because she felt she was more than capable of dealing with issues like that.  She had reasonable contact with the plaintiff’s ex-wife.

182     Ms Wyatt’s relationship with the plaintiff is now stable and solid.  She would have been happy for him to go away indefinitely into the future for up to three weeks at a time, doing fly-in/fly-out work, and she did not have any concern about how their relationship would survive that situation.[85]

[85]T92

The Plaintiff’s medical evidence

Treaters

183     The plaintiff originally came under the care of Mr Damon Thomas, plastic surgeon, on 21 January 2013.

184     Intraoperatively that day, Mr Thomas’ diagnosis was that of a complete division of the superficial radial nerve, complete division of the radial artery and radial veins by two.  The plaintiff had a 50 per cent division of brachioradialis, 50 per cent division of flexor carpi radialis and a 20 per cent division of flexor digitorum superficialis x 4.

185     The plaintiff had been troubled by post-traumatic neuroma formation of the superficial radial nerve.

186     As of March 2014, Mr Thomas thought the plaintiff’s injuries would leave a permanent impairment of the left arm, primarily due to weakness and inability to perform repetitive manual actions and chronic pain.

187     Mr Thomas thought that would limit the plaintiff’s ability in the long term to perform his normal occupation at the abattoir.  It would also impair his ability to perform most lifestyle activities which involved repetitive manual use of the left arm, in particular involving strength.

188     Mr Thomas noted the plaintiff had revision surgery on 25 July 2013 with the neurolysis of the nerve and wrapping the nerve with NeuraWrap.  He considered the plaintiff’s injury had stabilised.

189     Mr Thomas concluded the plaintiff would have permanent reduced function of the left arm with regard to strength, inability to perform repetitive activities and chronic neuralgic pain.

190     Dr Dale, the plaintiff’s general practitioner from Castlemaine, reported in March 2014.

191     At that stage, the plaintiff continued to experience electric shocks in the distribution of the radial nerve, with tapping close to the scar or just distal to it.  He also had ongoing reduced muscle strength of his forearm.

192     Dr Dale diagnosed left radial nerve, left radial artery and muscle injury.  There was a residual area of reduced sensation, 8 centimetres wide along the radial border of the left forearm distal to the scar, and involving the dorsum of the hand and thumb, index and half of the middle finger.

193     Dr Dale noted that pre-injury, the plaintiff was able to bone up to 75 quarters of beef a day with a minimum of 40.  He was now only able to do a maximum of 25.  Post-injury, he had to change his boning style and did not have his previous strength or stamina.

194     The plaintiff had ongoing loss of sensation in the distribution of the radial nerve and had repeatedly injured himself, because he had to rely on a visual cue that something was wrong.  That had resulted in blisters from burns or cuts involving bleeding when he realised he had injured himself.

195     Dr Dale thought the injury was permanent and would not improve.

196     Dr Dale noted the plaintiff was sent to the work doctor and not told he could see his own doctor.  She noted it was unclear whether the plaintiff would have been left with the residual radial nerve injury if the laceration had been referred to a surgeon immediately, or whether it was suturing by Dr Priest and a delay prior to referral to Mr Thomas that impacted on his recovery.  She noted that it was only when the plaintiff was frustrated with his slow progress that he returned on 16 September 2013, eight months after his original injury.

Medico-legal examiners

197     Associate Professor Felix Behan, specialist in plastic, reconstructive and hand surgery, examined the plaintiff in October 2015.

198     Mr Behan noted the plaintiff had constant weakness of the left forearm, he had lost his dexterity and hot and cold sensations persisted.  In other words, there was neural irritation from the recurring neuroma which caused the plaintiff ongoing severe discomfort. 

199     Whilst acknowledging future treatment was in the hands of the operating surgeon, in his experience, Mr Behan thought the only way to solve this recurrent neuroma of the radial cutaneous nerve was to bury it into the radius by creating a drill hole defect through the cortex only of the left radius.  If the plaintiff was his patient, he would recommend further surgery to help alleviate the persistent neural symptoms and the paresthetica dysfunction leading to a CRPS.  He noted should this development persist, it may lead to work problems, relationship problems and even psychiatric disturbances.

200     Mr Behan considered the plaintiff to have disability from an industrial loss point of view as a result of his injuries, taking into account clinical, domestic, industrial and social aspects.

201     Mr Behan thought that the plaintiff was unable to work as either a mechanic on a gas/oilrig or as a meat boner, noting he was currently working in heavy transport timber haulage.  The plaintiff advised he would like to return to work as a gas/oilrig mechanic.

202     Mr Behan thought the prognosis was poor in view of the plaintiff’s persistent symptoms to date, and he should be referred to an operating surgeon for ongoing assessment.  He thought, in those circumstances, the plaintiff could not be regarded as stabilised.

203     Mr Behan noted that the plaintiff’s lifestyle regarding hobbies, relaxation, cross country dirt riding and simple domestic chores had all been affected.  Even mowing the lawn caused severe left forearm pain on most days following the activity.

204     Mr Behan concluded the plaintiff had persistent symptoms with neural and motor dysfunction relating to the left forearm musculature.  The circumferential of the left forearm muscular tissues was 20 centimetres less than the right, indicating some myoatrophy.  In terms of the suggested surgery, the shorter the timeframe, the more hope there was for a complete resolution.

205     Professor Richard Bittar, neurosurgeon, examined the plaintiff in December 2015.

206     The plaintiff then complained of constant numbness radiating along the radial aspect of the left forearm into his thumb, index and middle fingers.  There was left arm and hand weakness and easy fatigue.  The plaintiff found any repetitive activities of his left arm or hand resulted in easy fatigue and his left hand was generally not as strong as it was prior to injury.

207     The plaintiff also experienced intermittent electric shocks which radiated through his left forearm into his hand in the same distribution as his numbness.  Those shocks occurred a number of times every day and caused significant sleep disruption.  These were precipitated and aggravated by any significant left arm or hand activity.  The plaintiff also had intermittent pallor, coldness and pain deep in his left hand, particularly in the winter.

208     Professor Bittar diagnosed a traumatic laceration of the left superficial radial nerve, resulting in ongoing numbness throughout the left forearm and hand.  There was probably neuroma formation in the region of the superficial radial nerve laceration in subsequent surgery which resulted in neuropathic pain radiating into the plaintiff’s left forearm and hand.

209     There was an injury to the left radial artery causing intermittent pallor, coldness and deep pain in the left hand.  There was injury to the muscles, other soft tissue structures and the left forearm most likely contributing significantly to the plaintiff’s weakness and easy fatigue.

210     Professor Bittar recommended the plaintiff be reviewed by a pain specialist for consideration of neuropathic pain medication to attempt to reduce his pain.  He thought the condition was likely to persist into the foreseeable future.

211     Professor Bittar considered the plaintiff had very significant restrictions on his work capacity in the open labour market.  He noted the plaintiff was working in a seasonal fashion as a self-employed truck driver.  He thought the plaintiff clearly had some work capacity.  However, he did not have the capacity to return to work as a beef boner or a driller and supervisor.  That inability was permanent.

212     In terms of the plaintiff’s physical restrictions, Professor Bittar thought he required the opportunity to take regular breaks, avoid any repetitive left-sided arm or hand activity, and avoid any pushing, pulling or heavy lifting with his left arm.  He also needed to avoid jolting, vibration, or forces that would aggravate his left arm symptoms.  These restrictions were permanent.

213     Professor Bittar considered the plaintiff’s condition had stabilised.  He thought the plaintiff’s lifestyle and quality of life were adversely affected by his work-related arm injury.  Professor Bittar noted the plaintiff had difficulty playing football with his children and stepchildren, and no longer rode dirt bikes.  He was not able to use a Whipper Snipper or traditional lawnmower without aggravating his symptoms.

214     The plaintiff was examined by occupational physician, Dr Amanda Sillcock, in January 2016.

215     The plaintiff told Dr Sillcock he felt his pain was worse after the second operation.  He still had pain in his left forearm and had lost muscle strength in his arm and hand.  His arm fatigued easily and the scar was quite prominent at times.  The pain was variable in severity but constant, radiating down to his fingers.

216     The pain was sometimes triggered by activity, and touching the area of the laceration or knocking it caused pain.  The plaintiff had good movement, but was weak.  He had reduced sensation over the thumb and index finger and part of his middle finger, and experienced a feeling of sharp electric shocks.  He said it often felt like pressure or a bone pain.  He also had a cold sensation.

217     The plaintiff had difficulty sleeping and was woken by pain.

218     On examination, there was tenderness over the lower part of the scar and pain down the radial side of the arm to the thumb.  There was slight muscle wasting around the thumb and the plaintiff had a weak grip.  He had reduced movement of the wrist in all directions.  He was unable to fully oppose his thumb and there was pain on resisted thumb movement.  He had reduced sensation to pinprick on the radial side of the arm distal to the scar, and over the thumb, index and radial part of the middle finger.

219     Dr Sillcock thought the plaintiff was suffering from a radial nerve lesion as a result of the incident.  He also had a laceration to the radial artery, but that had been successfully repaired.

220     Dr Sillcock thought the plaintiff was not able to do his previous work as a boner, which was two handed, and he would not be able to work as an FIFO miner.  Dr Sillcock noted the plaintiff was currently working as a delivery driver for his father and was coping.  She thought, however, the plaintiff may experience difficulty finding work on the open market because he had limited use of his left hand and ongoing pain.

221     Dr Sillcock noted the plaintiff was a trained motor mechanic, but she did not believe he would be able to undertake that type of work.  He had difficulty fixing his own car when there were no time pressures, as there would be if he was in paid employment.

222     Dr Sillcock thought the plaintiff’s condition was unlikely to change significantly in the foreseeable future.  She noted he had a number of difficulties with social, recreational and domestic activities.

Certificate of capacity

223     As at March 2014, Dr Dale certified the plaintiff fit for modified duties, boning to the capability of his arm then slicing to a maximum 5 hours per working day. 

The Defendant’s medical evidence

224     The plaintiff was cross-examined in relation to a number of entries in Dr Dale’s clinical notes.

Medico-legal examiners

225     Dr Malcolm Brown, occupational physician, examined the plaintiff in April 2013.  This examination pre‑dates the second surgery of 25 July 2013, thus the findings in relation thereto are of little assistance.

226     Mr Michael Troy, occupational physician, examined the plaintiff on 20 September 2013, two months after the second surgery.

227     The plaintiff then complained of intense pain when tapping the wound.  The tapping gave him pain down into the thumb and index finger.  He no longer had the carpal tunnel syndrome.  He did not have nocturnal pain.  He was able to grip.  He had no problems with his head, neck, left elbow, left shoulder, or dominant right upper limbs.  His left arm felt stiff and it ached.

228     The plaintiff was then seeing a hand therapist and not taking any medication.

229     As of 19 September 2013, the plaintiff was working three days a week, two hours at a time, doing slicing.

230     Mr Troy diagnosed an excision of the cutaneous nerve to the left forearm plus carpal entrapment of the left wrist.

231     Mr Troy noted the plaintiff had full movements of his left elbow and wrist and all joints of the thumb and fingers of his non-dominant left upper limb.  Frequent tapping or firm pressure over the scar caused intense pain down into the thumb, index and adjacent radial side of the palm.  There was no clinical evidence of carpal tunnel syndrome.  The plaintiff did not have the signs of a Complex Regional Pain Syndrome.

232     Mr Troy noted the plaintiff still had intense pain related to the knife wound to that vascular cutaneous nerve.  He had had relief of his carpal tunnel syndrome.

233     Mr Troy thought the plaintiff was not then fit for pre-injury duties.  He noted the plaintiff was back doing some slicing, and may have difficulty grasping with his hand repetitively, and therefore he may have to stay as a meat slicer indefinitely, rather than be a boner.

234     Mr Murray Stapleton, plastic and hand surgeon, examined the plaintiff on 17 February 2014.

235     At that stage, the plaintiff’s forearm remained very sensitive and painful when he applied pressure, so far as grip was concerned.  The scar remained very tender, and when he touched one part of it he felt a zap on the back of his left index finger on the distribution of the terminal sensory branch of the radial nerve.

236     The plaintiff had some loss of sensation on the pulps of the left thumb, index and middle fingers, suggesting some injury to the median nerve, and from that, he seemed to be recovering.  So far as the significant problem however of the tenderness of the scar and pain in the left forearm, there had been no observable change, and at the end of his working day, the plaintiff’s left forearm was painful.

237     Mr Stapleton noted the scarring and that tapping at the site thereof sent an electric-type sensation down the back of the plaintiff’s forearm.  There was also loss of sensation over the distribution of the median nerve involving the pulps of the left thumb, index and middle fingers.  Mr Stapleton noted the plaintiff had returned to lighter duties.  Whether or not he would go to unrestricted work was for time to determine.

238     Mr Stapleton had reviewed the surveillance material, and thought the plaintiff was not capable of performing unrestricted duties unless further information became available.  Given he was a piece worker, the plaintiff had every encouragement to bone as many bodies of beef as he was capable.

239     Mr John Buntine, plastic and hand surgeon, examined the plaintiff on 15 July 2014 and again on 15 April 2015.

240     The most recent assessment was on 29 February 2016.

241     Mr Buntine then noted the ongoing cause of difficulty assessing the plaintiff was that his complaints had been out of proportion to the known details of his injury, namely complete division of the left superficial radial nerve and of some tendons of his left forearm.

242     It was not until Mr Buntine was dictating his supplementary report he realised the probable explanation of the plaintiff’s apparently excessive complaints was that the stabbing pain also partly divided his left median nerve.

243     Mr Buntine noted it should be remembered the plaintiff had not actually claimed he could not work as a boner: his claim was he could not get through a normal amount of work in the day, because of the need to perform tasks differently.  Also, on further enquiry, his work carting firewood long distances for his father’s substantial firewood business constituted significant present employment, as was confirmed by the DVD, although the plaintiff’s present earnings were much less than at the abattoir.

244     Mr Buntine noted as far as he was aware, none of the surgeons or doctors who had treated the plaintiff or examined him realised the median nerve was partly divided, although Mr Stapleton briefly mentioned a claimed sensory loss consistent with that, and Mr Buntine had made a previous comment in this regard.

245     On 29 February 2016, the plaintiff told Mr Buntine that, if anything, his condition was marginally worse.  He was taking occasional Nurofen, but did not take anything stronger, because he did not want to endanger himself and others by being drowsy when driving.  That was also the reason he did not take a hypnotic to sleep.  The hand therapist had encouraged the plaintiff to frequently desensitise his scar by massaging it, but the pain this caused prevented him from doing this.

246     The plaintiff described a dull ache most of the time in the region of the scar and the upper anterolateral part of the forearm.  The ache had gone away totally last when he had been flying back from England two weeks earlier.

247     Use of the hand aggravated the pain, and knocking the scar caused severe pain.

248     The plaintiff advised he would not be able to bone beef because of the tender scar, as it was necessary to rest large heavy parts being boned on the upper part of the forearm.  However, he then qualified this by saying that because of having to bone in a different way he had only been able to complete about one-third of an ordinary day’s work before he was forced to stop work by pain which persisted while he was in bed that night.

249     The plaintiff also complained of electric shock, short-lived intense pain, which radiated up and down from the region of the scar.  These shocks came on for no reason, as well in bed.  They were also caused by touching the painful scar and particularly by knocking it.  There was also an abnormal sensation, like pressure building up within the affected area of the forearm, which the plaintiff experienced most days.  If he could not sleep at night due to pain, he could not safely drive his truck the next day.

250     The plaintiff also reported having lost sensation from a broad area extending distally from the scar to the radial side of the back of the left hand, thumb and index finger, when he smashed the nail of his left index finger with a block of wood some six to eight weeks ago.  This could have been because of the weakness and loss of sensation.

251     The plaintiff advised that his left hand grip was much weaker than before injury, and fatigued easily.

252     Loading was largely done mechanically at work.  The plaintiff had difficulty changing the multiple synchromesh gears, and that prevented him from driving in the city.  He had difficulty holding the truck’s vibrating steering wheel with his left hand.  Due to the electric shocks passing up his left arm, he was essentially driving with his right hand.

253     The plaintiff also reported restrictions in sport and playing with his children.

254     Following a thorough investigation and review of his previous reports and all of the information forwarded, Mr Buntine now considered the plaintiff’s present major problem was a previously undetected partial division of his left median nerve, resulting from the deep stabbing cut at the abattoir.

255     Mr Buntine noted that it was not at all surprising that it was not detected at the time and had not been detected since, except for a passing comment in one of the previous reports concerning some sensory impairment in the distribution of the median nerve, and his reference to the same in a previous report.  He noted it seemed that the plaintiff’s manner of description of his quite significant problems may not have prompted a thoughtful enquiry into the details of his complaint.

256     Mr Buntine diagnosed a partial division of the left median nerve in the forearm with partial recovery, and less good sensory than motor recovery; division of the left radial nerve in the forearm, with neuroma formation and persistent neuroma symptoms, despite a nerve wrap of the neuroma with a bone graft; division of the anterior branch of the lateral cutaneous nerve of the forearm, which had left an ordinarily unimportant sensory impairment, but one which would be important to supporting parts of beef carcases on the forearm while boning them, and division of the radial artery and adjacent veins, which had had no significant permanent effect.

257     Mr Buntine thought the prognosis was for minimal ongoing change to occur.  He did not advocate any further treatment because of the partial median nerve injury.  He believed the plaintiff would be restricted while working as a slaughterman, as he claimed, and that he presently suffered significant limitations and discomforts while carting firewood for his father and while he was not at work.

258     Mr Buntine noted the surveillance DVD showed the expected use of the plaintiff’s left hand and arm, and gave an indication of the size of the firewood business.

Wage rates

259     Marc Bullen, human resources manager with the defendant, swore an affidavit exhibiting the plaintiff’s wage details.

260     Based on the records, Mr Bullen set out that if the plaintiff was still working with the defendant on the same terms and conditions as he was prior to his resignation, he would be paid a gross wage of $486.68 for two days or $730.02 for three days’ work.

Overview

261     There is no dispute the plaintiff suffered a compensable injury in the incident on the said date.

262     There is no significant difference in the medical opinion relied upon by both parties.[86]  The consensus thereof is that the plaintiff suffered a partial division of the left median nerve, a division of the left radial nerve with neuroma and a division of the anterior branch of the lateral cutaneous nerve of the forearm.

[86]T97

263     The plaintiff’s condition persists despite two operations.

264     The defendant accepted liability for the payment of weekly payments and medical expenses.  This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[87] such admission should ordinarily be regarded as very significant:

“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”

[87][2006] VSCA 171

265     There is no suggestion that the plaintiff’s left forearm injury lacks a substantial organic basis.[88]

[88]Meadows v Lichmore Pty Ltd [2013] VSCA 201 at paragraphs [21]-[22]

Credit

266     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[89]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[89](2010) 31 VR 1 at paragraph [12]

267     I found the plaintiff to be a very truthful, honest witness, who did his best at all times in the witness box and was prepared to make appropriate concessions.

268     I accept the plaintiff was somewhat of a stoic, having attempted to return to abattoir duties after a very significant painful injury.

269     As I indicated during the hearing, there was nothing shown in the surveillance film of any activity inconsistent with the plaintiff’s reported level of pain and restriction.[90]

[90]T117

Pain

270     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[91]

“The evidentiary basis of the pain assessment will ordinarily comprise the following:

(a)  what the plaintiff says about the pain (both in court and to doctors);

… .”

[91](supra) at paragraph [11]

271     I accept the plaintiff’s complaints of pain as detailed in his affidavits.

272     The recent description of his symptoms given to Mr Buntine on examination in late January 2016 confirms the serious level of these complaints.

Treatment

273     An evaluation of the seriousness of an impairment also involves what the plaintiff has done about his pain as Maxwell P stated Haden Engineering Pty Ltd v McKinnon.[92]

[92](supra) at paragraph [11]

274     The plaintiff has undergone two surgical procedures which have resulted in little improvement in his condition.  In these circumstances, his reluctance to discuss the further surgical procedure suggested by medico-legal examiner, Mr Behan, is totally understandable.

275     I also accept the plaintiff’s reluctance to take medication is based on his concern how it would affect his driving and operation of machinery at work rather than being an indicator his pain was not at the level he described, as counsel for the defendant submitted.[93]

[93]T96

276     I accept that the plaintiff has weakness, pain, numbness, lack of sensation and difficulty with any manual handling task involving both hands and arms, as was indicated with the difficulties he faced on his return to work at the abattoir, suffering injury on a number of occasions, as he lacked sensation in his left arm.

277     I am satisfied that as a result of his left forearm injury, the plaintiff no longer has the capacity to work in a variety of fields, including unrestricted manual labour, abattoir work, and also his former job as a supervisor or rigger on offshore rigs.

278     I accept that if the plaintiff went back to Lucas, he would be unable to pass the medical and he could not do work as a supervisor because it would involve hands-on work as well, as Mr Ellis confirmed.

279     The preponderance of medical opinion as to the plaintiff’s work capacity is to this effect.

280     I am satisfied this interference with work is a serious consequence and satisfies the narrative test.  As I indicted to counsel for the plaintiff in addresses, I did not require submissions from him in support of the plaintiff’s pain and suffering application.[94]

[94]T109

Loss of earning capacity

281     Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –

(a)    at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also

(b)    after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).

282     The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:

(i)     “without injury” earnings;  and

(ii)     “after injury” earnings. 

283     The former must be calculated by reference to the six-year period specified in s134AB(38)(f).

284     “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.

285     It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.

286     The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.  See Barwon Spinners Pty Ltd & Ors v Podolak.[95]

[95](supra) at paragraph [70]

287     I am therefore required to determine a “without injury” earnings figure.  Submissions were made by both counsel in this respect with this being the main issue in dispute in this application.

288     Counsel for the plaintiff submitted the figure which most fairly reflected without injury earnings was the amount earned by the plaintiff working on the rig as a supervisor – a figure of more than $120,000 together with allowances. 

289     Further, in the financial year ending 30 June 2012, the plaintiff earned nearly $98,000 working until only October 2011, indicating a very significant level of earnings.[96]

[96]T116

290     In the most recent financial year, the plaintiff’s gross income from the carting business was only about $30,000.  Accordingly, it was submitted he had suffered the requisite loss of 40 per cent.

291     It was submitted the plaintiff’s earnings from drilling work was the appropriate figure because he intended to return to rig work once his family situation had stabilised.  There was no other explanation why he would decide to give up a very lucrative career to work for a very small income in Victoria.

292     Counsel for the defendant submitted the plaintiff had no intention of returning to drilling work.  He had made a lifestyle change to be with his children in Victoria in 2011.  He had decided to work either in the carting job or work in the abattoirs, as was the situation at the time of the incident.

293     Reliance was placed on Dr Dale’s clinical notes at the end of 2011 and in January 2012.[97]  It was submitted the plaintiff’s desire to be with his children was further borne out by the plaintiff being his son’s principal carer as of October 2013 when he had access to Darcy 70 per cent of the time.[98]

[97]T102

[98]T102

294     Further, it was submitted it could not be accepted that the plaintiff had to stay in Victoria for Family Law matters when settlement of the matrimonial property was quite straightforward.  The Family Law Orders were very simple, involving a 60/40 split, with the only real asset being the matrimonial home.[99]

[99]T100

295     It was submitted that working fly-in/fly-out, the plaintiff could have been available to see his solicitor when necessary.  The plaintiff did not need to be in Victoria at all times and could have continued to work in Queensland and attend to his Family Law matters from there.  There was nothing that the plaintiff would be unable to do with his solicitors if he was in a fly-in/fly-out situation, as there would have been certainty as to the period when he would be back in Victoria.[100]

[100]T99

296     In any event, the hiring freeze was to continue, perhaps to the middle of 2013.[101] Further, Mr Ellis had suggested a number of jobs that were less well paid than a supervisory role.

[101]T99

297     It was submitted the plaintiff’s histories to doctors prior to the issuing of this application did not make any mention of an intention to return to Queensland and that issue only appeared in the plaintiff’s affidavit.[102] In those circumstances, it was submitted the plaintiff had not suffered the requisite loss, as, if he continued working, or if he was presently working, in his pre-injury job at the abattoir, the annualised “without injury” earnings figure was $36,000 gross.[103]

[102]T103

[103]T40

298     This figure was based on the details set out in wage records exhibited to the defendant’s affidavit of earnings of $600 a week.[104]

[104]T105

299     Further, counsel for the defendant criticised the plaintiff’s after injury earnings figure as being too low, as it took into account a depreciation figure which it was submitted should not be taken into account as a deduction.[105]

[105]T105

300     Counsel for the defendant also submitted the plaintiff is not exercising the full extent of his residual capacity.[106]  He only has the one contract at present.  It was submitted the plaintiff was able to work more hours driving a truck, and it was difficult to simply accept that there could be no other roles he could perform which also might result in increased earnings.[107]

[106]T98

[107]T108

301     It was submitted in these circumstances, where the plaintiff had failed to satisfy the Court he was exercising the full extent of his capacity, there was no onus on the defendant of the type described by the Court of Appeal in Giankos.[108]  

[108]Giankos v SPC Ardmona Operations Limited (No 2) [2009] VCC 1461

302     I am satisfied that the plaintiff, had he not been injured, would have resumed drilling work in Queensland.  This was not speculative employment.  The plaintiff had an excellent past work record at Lucas, progressing up the ladder to the point where he was a supervisor Level 2 for the last two years of his employment until October 2011.  Further, I accept that Mr Ellis was willing and able to employ the plaintiff if he was physically capable of the work.[109]

[109]T111

303     I accept the plaintiff’s evidence, and Mr Ellis’ confirmation thereof, that the plaintiff’s return to Lucas depended on the resolution of his family matters which were an ongoing issue.  Whilst there was a hiring freeze, that was only a temporary situation and the plaintiff would have been offered a new contract when he was available for work.[110]

[110]T111

304     Whilst the tenor of the clinical notes in late 2011-early 2012 suggested the plaintiff may not have intended to return to work in Queensland, that was his view at that time – not later in mid 2012, when he was communicating with Mr Ellis about a return to drilling work in Queensland.  This evidence was corroborated by Ms Wyatt, whom I found to be a very credible witness. 

305     I accept it was the plaintiff’s long-term intention to return drilling work, despite what he might have told Dr Dale in the early days.[111]

[111]T115

306     After his family issues were finally resolved, there was no reason why the plaintiff would choose lowly paid work in Victoria if he was physically capable of undertaking much more lucrative drilling work in Queensland.

307     The plaintiff’s taxation returns indicate a very high level of earnings.  It was not suggested to the plaintiff in cross examination any reason why he would stay in Victoria earning $30,000 when he could earn over $120,000 in drilling work in Queensland. Counsel for the plaintiff submitted there was a direct financial incentive for the plaintiff to return to drilling work for which he was qualified and experienced and would earn such money.[112]

[112]T110

308     Further, on the earnings figures for a driller[113] set out in Mr Ellis’ email, the plaintiff would still suffer the requisite 40 per cent loss when compared to his after injury earnings of $30,000.

[113]$113,000

309     Having made this factual finding as to the plaintiff’s intention to return to drilling work, it is also relevant to note that clearly the plaintiff has demonstrated the capacity to work long hours in drilling work in the three years before the incident.  This capacity is a relevant consideration when considering the issue of loss of earning capacity as the Court of Appeal held in Jessop.[114]

[114]The Herald & Weekly Times Limited v Victorian WorkCover Authority & Jessop [2014] VSCA 292 at paragraphs [49] – [50]

310     Whilst it is not an inconsiderable task for the plaintiff to discharge the onus in relation to this issue, as counsel for the defendant submitted,[115] I am satisfied the plaintiff has suffered the requisite loss of 40 per cent.

[115]T106. Counsel relied on Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, the Second Reading Speech, and also Hayhill Pty Ltd v Hodge [2006] VSCA 194.

311     I am also satisfied the plaintiff is exercising his full residual capacity for employment. He is not fit to work as a mechanic, driller or a supervisor, or in an abattoir. There is no suggestion of any other work the plaintiff could be doing[116] nor do I believe he is capable of working more hours than he is presently doing.

[116]T108

312     I accept that the plaintiff has difficulty working both driving and in the yard because of his arm pain and resultant problems sleeping and inability to take medication.

313     I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).

314     In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by him which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more.  As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).

315 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, ie both for pain and suffering and loss of earning capacity: see Forrest J in Acir v Frosster Pty Ltd[117]and Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle.[118]

[117][2009] VSC 454 at paragraph [147]

[118][2009] VSCA 170

316     Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.

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