Griggs v Elsegood Holdings Pty Ltd - [2014] WADC 165

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GRIGGS -v- ELSEGOOD HOLDINGS PTY LTD [2014] WADC 165

CORAM: KEEN DCJ

HEARD: 13-22 OCTOBER 2014

DELIVERED : 11 DECEMBER 2014

FILE NO/S: CIV 91 of 2013

BETWEEN: MICHAEL WILLIAM GRIGGS
Plaintiff
AND
ELSEGOOD HOLDINGS PTY LTD
COMBINED METAL INDUSTRIES PTY LTD
Defendants

Catchwords:

Negligence - Employer and employee

Damages - Whether permanent whole of person impairment and extent

Turns on own facts

Legislation:

Nil

Result:

Plaintiff's case dismissed

Representation:

Counsel:

Plaintiff: Mr T J Hammond
Defendants: Mr D J Clyne

Solicitors:

Plaintiff: Simon Walters
Defendants: SRB Legal

Case(s) referred to in judgment(s):

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Amaca Pty Ltd v Ellis (2010) 240 CLR 111
Armitage v Tenix Defence Pty Ltd [2008] WADC 150
Lyle v SOC [2009] WASCA 3
Makita (Australia) Pty Ltd v Sproules (2001) 52 NSWLR 707
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Rooke v Minister for Health [2009] WASCA 27
Shorey v PT Limited [2003] HCA 27
Strong v Woolworths Ltd (2012) 246 CLR 182
Watts v Rake (1960) 108 CLR 158

KEEN DCJ: The plaintiff claims damages for injuries that he sustained on 18 August 2010.
At the material time, the plaintiff was working for the defendant as a truck driver. He drove a 12‑tonne rigid tray truck with a Hiab crane attached.
His duties involved delivering metal products manufactured by the defendant to various customers.
On any particular day he would be required to make a number of deliveries to different destinations. His truck would be loaded the night before at the employer's premises. The truck was generally loaded so that the last items to be delivered the following day would be put on the truck first, and the first items to be delivered would be placed on the truck last.
The drivers employed by the defendant did not become involved in the loading of the truck. There were loaders who were employed for this purpose and the drivers stayed away from the truck until it was loaded. It was then that the drivers would receive from the office the delivery sheets comprising a running sheet of the various deliveries to be made that day and the delivery notes for each destination.
Normally trucks would be loaded by 7.00 am and ready to leave the defendant's yard. On the day in question the plaintiff's truck had not been fully loaded the night before. The loading was not completed until sometime after 10.00 am. The plaintiff was working alone.
The load on this particular day included rectangular downpipes in packs of 10 bound together. They weighed approximately 20 kg per pack.
On this day, one pack of downpipes is said to have been placed in the middle of the truck and access to it was difficult.
It was while trying to unload this pack of downpipes that the plaintiff was injured.
In opening, the operation was described as one whereby the plaintiff was trying to position the pack in order to attach the crane to it so it could be lifted. While lifting the pack of downpipes he felt pain in the left arm and elbow and stopped work immediately.
His supervisor or manager, Bruce Carr, came out to the customer's address and took the plaintiff back to the yard and then to a doctor.
The plaintiff suffered an injury to the left elbow but he also complained of pain in the arm, wrist, shoulder and neck. Over the course of time, the plaintiff had various medical treatments including a number of operations.
He did not return to work and ultimately his employment with the defendant was terminated in November 2011 and he has not worked since.
Negligence is in issue. It is argued by the plaintiff that the accident was caused by the inappropriate practice adopted by the defendant for the loading of the truck. It is said but for that inappropriate loading the accident would not have occurred.
Apart from this issue of negligence, there is the issue relating to the extent of the injury sustained by the plaintiff. Questions arise as to the permanent whole of person impairment (PWPI) of the plaintiff as defined in the Workers' Compensation and Injury Management Act 1981 (the Act). In particular, as to whether or not the plaintiff's PWPI exceeds the threshold to enable an award of damages to be made and if so, whether or not it exceeds the further threshold whereby there would be no capping of damages.

Background to the occurrence

The plaintiff gave evidence that he was born on 6 December 1952. He was born and brought up in the United Kingdom and came to Australia in 1987.
He said that he had been continuously employed.
He left school at age 15 and worked as a labourer for a couple of years and then joined the Royal Marine Commandos, reaching the rank of corporal. He remained with the Royal Marines for about seven years until he was 23 or 24 years old.
He was then taken to his work history by reference to a schedule set out in a report from ORS Rehabilitation Providers (exhibit 1).
He confirmed the correctness of that schedule which showed that he worked from 1964 to 2008 in various employments, including the building industry, as a gas fitter, and also as a truck driver.
He commenced his employment with the defendant in or about February 2010, having successfully undergone a medical examination. According to the plaintiff he had no physical complaints at that stage.
The plaintiff said that he would normally arrive at his work at about 5.30 am and have coffee with his fellow drivers. He would then obtain his delivery dockets for that day from the office and proceed to check his truck to see if the load was correct and according to the manifest. He would also check the loading of the truck to ensure that it was loaded correctly and could be unloaded safely.
The plaintiff was the safety representative and would also check the other trucks to ensure that they were loaded and tied down correctly.
He was asked and replied (ts 54):
In terms of checking to see whether the loads were on correctly, what would determine if a load was on correctly or whether it was not on correctly … Well, the correct way – if the – if the driver could unload the truck safely – in a safe manner without climbing over everything to get to things, then if it was loaded to the way of the manifest, as the deliveries were, that was correct. If a driver thought the load was unsafe, like, there was bits and pieces put on top of a load what he had to keep moving then to unload the first load, I would then have them took off and delivered separately. If the load was alright ...
Why would you do that … Well I would inform the supervisor of the – or the leading hand of the loaders …
Yes … I wasn't happy. I want them took off and delivered separate, or if there was something wrong with the load I'd have them take it off and reload it. If he objects, I would say to the driver 'well, wait till the manager comes in. We'll have a word with him' …
Yes … And take it from there.
Yes … There wasn't many – there was a few times when this occurred. But the drivers didn't have control of the loading. The loading was done by a night shift. And what wasn't loaded by the night shift was loaded by the morning shift.
In respect of that last part of his answer, he was questioned further about the number of occurrences and later said, in relation to a question about the system of work and checking the loads and seeing something he felt was unsafe and talking to someone, 'that was happening quite a lot' (ts 57).
On a normal day, the plaintiff would leave the yard at about 7.00 am. He worked alone doing his deliveries with no assistant to help him unload the truck.
The day of the plaintiff's accident was his last day at work before going on leave.
He said that he arrived at the yard on this day at about 5.40 am and had coffee. He then went to the office to get his paperwork for the day but it was not there as the truck had not then been loaded.
The plaintiff then continued to check the other trucks which left the yard by 7.20 am. At about 8.10 am he was provided with his worksheets for the deliveries that day but the loading of his truck was still not complete. Ultimately the loading was completed and he left the yard at about 10.20 am having strapped down his load and made sure that it was safe.
The plaintiff said that he asked his manager, Bruce Carr, for a hand to deliver the load but was refused. He told the manager that whatever was not delivered by 4.00 pm would be brought back to the yard.
The plaintiff described the way in which materials were loaded onto the truck. Those that were to be lifted off using the Hiab were pre-slung. He said the middle of the truck was supposed to be left clear as a walkway. He said (ts 63):
The middle is supposed to be a walkway where it's supposed to be clear, but when you get like, hips, ridge caps, guttering sometimes, fascia, they usually put them in the middle of the truck where they pre-sling them and then lay them in the middle so that you can crane them off.
According to the plaintiff, some materials are placed in bags which are manhandled.
On the day in question, the plaintiff was at his first delivery in Greenwood. He had unloaded some of the metal sheets with the Hiab and removed the bagged items. He checked his list of items to be delivered at that address and found that one pack of downpipes was missing, in the sense that it was not with the other items.
The plaintiff found these other downpipes in the middle of the truck towards the front end. He then described what occurred in trying to get to these downpipes in the following terms (ts 67 ‑ 8):
I climbed up onto the truck to see where the other pack of downpipes were. And they were located in the middle of the truck at the front – near the front end.
So I then proceeded to get that pack out. But cause they were down in the middle, I was standing on these other – I was standing on the sheets of the next job which on top of them as well was the hips, the valleys all strapped down. So I was sort of, like, straddling over them to get to these downpipes.
And I – I then had one foot on one side of one lot of sheets and on the other side, but I couldn't lift them out cause all the bags were there. So I then proceeded to go back to the other side and move the bags, and then I started to lift the downpipes up. But I was then back straddling the sheets again.
And so how did you try to lift or what did you start to lift the downpipes up … Well how I started was I was – I bent down and got the end of the pack of the top two pipes.
And I was lifting them and pulling them at the same time.
With my right hand, yeah.
And as I was lifting them and tried to pull them up so I could – cause there was other stuff on top of them.
So I sought of, like, tried to lift and pull at the same time. I then proceeded to put me left arm under the pack …
And I tried to push down and lift at the same time with the pipes.
I lifted me left arm up and pushed me right hand down. So using that as … like a wedge. As I got them up to turn, I lost my balance cause I caught me leg in these hips – ridge caps, lost me balance. Me arm went – well, the pipes went down. And as the pipes went down, it wrenched me arm with it.
So I let the pipes go.
And I got a sudden shock of pain in me elbow – in me arm. And I thought 'I've done something there', you know.
So I stood there for a minute and took me breath and got myself back in again. I then proceeded to lift the pipes again with this arm. With me right arm. And I just couldn't do it.
He then went on to say (ts 68):
As the pipes fell back down – because I was not far enough down the pipes with me other arm. If I'd been half way in, I'd have been alright. But of course – I was only a third of the way down the pipes. When they fell down or when the end of them went down, that wrenched me arm with it.
There is an issue as to the size of these pipes. The delivery docket, (exhibit 12), describes them as being 1.8 m lengths whereas the plaintiff said that they were 2.4‑m lengths. These downpipes are packed in packs of 10 – two wide and five high – and strapped together, as shown in the photograph at exhibit 34.2.
It appears to be common ground that the pack of longer pipes weighs approximately 20 to 22 kg. It follows the shorter pipes would be approximately three‑quarters of that weight, i.e., somewhere between 15 and 17 kg.
I am satisfied that the pipes were as described by the plaintiff. He was constant throughout his evidence as to this. Further, the history he gave to RediMed, being the medical practice he attended on the day of the accident, reported the plaintiff lifting 20 kg (exhibit 19). Similar histories have been taken by other doctors throughout his treatment. No other evidence was led, apart from the delivery docket (exhibit 12) to contradict his evidence.
In addition, the plaintiff said in evidence that if they had been 1.8 m he would have 'picked them out dead easy' (ts 69).

The issue of negligence

There is no dispute that the defendant, as employer, owed the plaintiff a non-delegable duty of care.
The plaintiff was cross-examined about the events giving rise to his accident. He described other items in the middle of the truck as being hips and valleys. He said the hips can range between 6 and 7 m long and one on that day was nearly 8 m.
The cross-examination then continued (ts 130 ‑ 131):
What was actually on top of the downpipes at the time you went to move them … Well, when I went up there and climbed over them, there was hips, ridge caps, valleys, some bags, all on top of it cause all the bags were at the back of the board at the front of the truck and I eventually – I was looking around, I found the downpipes, they were there.
Why didn't you move the other things off them before you attempted to lift them … To do that, I would have had to lift every – all the, in the middle completely off. I'd already moved the bags. I had enough room to roughly pick them up by moving the bags by hand. But to do it by Hiab I wouldn't have been able to got the straps under them for a start because they laid in between – in the middle of the lane in between the wooden timbers.
So did you think what you were doing was unsafe … No, I've done it many a time.
So what was wrong on the day … What was wrong on the day? I suppose what was wrong on the day was instead of having two people what load the truck normally, there were six people loading it. And there was people coming from all different places bringing all different materials. Some were doing this, getting this job. Some were getting that job. The loaders were getting frustrated cause they were getting told off by the leading hand and the managers to hurry up and get it loaded to get it out. And perhaps that was a genuine mistake – an accident that these were put in.
Well before you left the yard, you had your dockets to see what was going to come off first … Yes.
And you say you checked that you thought everything was OK – no, I was told there was one pack of pipes in the middle.
… who told you there was a pack of pipes in the middle … The loader, cause when I checked the loads to see what was which, I said to him on this particular ticket 'there's three pipes of downpipes. I can only see two' and he said 'yes, we had to put the others in the middle at the back of the tray because we didn't have no room'.
Okay, so you knew that before you took the truck out … yes.
Did you think there was a problem with that … No. Normally they put it so you could lift them out and it was safe. They'd have done it so you would normally just go in there and there'd be easy access to them off the truck.
Cross-examination continued (ts 131 – 132):
And you're in charge of safety. Why didn't you do something about that if you thought it was unsafe … Because at the time I couldn't see the pack in the middle … And also I have the managers jumping up and down wanting me to get out of the yard.
And you didn't see it before as being unsafe … No, if they'd put them in an easy access to get them out. That day cause there was so many different people loading the truck – normally they'd have put the pipes on top. Anything in the middle is usually slung so you can access it with the Hiab. This particular day because everybody was chasing each other to get the truck out they put the slung material, which were the ridge caps, the hips and the valleys, on top of the pipes.
Why didn't you leave them there instead of unloading them if you believed it was unsafe … You can't leave a job half done.
Why not, you're in charge of safety … I'm in charge of safety. I'm not in – if I turned around and phoned the firm up and said to them 'look I'm not going to take these pipes off', there'd be hell to pay.
Under cross-examination he went through the mechanics of lifting the pipes. It appears that he had his right hand at the end of the pipe and his left arm under the pipes further back and lifted the pipes to waist height before losing his balance.
When questioned as to why he did not sling these pipes he said there were no spare slings on the truck.
I accept the plaintiff's evidence as to how these downpipes were loaded onto the truck, and that they were not pre-slung so as to enable the use of the Hiab. It became necessary for the plaintiff to try to lift these downpipes to enable him to unload them from the truck.
Irrespective of the plaintiff's cognisance of safety issues and having a role to play in ensuring that loads were safe, that does not obviate the need for the employer to ensure that a safe system of loading of the truck was employed.
It is quite understandable that on the day the plaintiff may not have been taking quite the care that he might otherwise have taken to check the load to ensure that it complied with the manifest and was so loaded as to enable efficient and safe unloading. The truck had not been loaded timeously and there was a considerable delay in it being ready to leave the yard. There was concern that the plaintiff might not be able to unload all of the materials that day and he was due to go on leave. He was refused assistance.
The plaintiff pleads his case in the following terms:
3.At all material times by reason of section 19(1) of the Occupational Health and Safety Act 1994 (WA) and the regulations made there under, the Defendant had the statutory duty to, so far as was practicable, provide and maintain a working environment that did not expose the plaintiff to hazards and without limiting that duty in particular the defendant had a duty to:
3.1Provide and maintain workplaces, plant and systems of work such that, so far is practicable, its employees were not exposed to hazards;
3.2Provide such information, instruction and training to, and supervision of, its employees as is necessary to enable them to perform their work in such a manner that they were not exposed to hazards.
4.At all material times the defendant had a duty of care to the plaintiff to provide and maintain a working environment that did not expose the plaintiff to hazards and without limiting that duty in particular the defendant had a duty to:
4.1Provide and maintain workplaces, plant and systems of work such that, so far is practicable, its employees were not exposed to hazards;
4.2Provide competent employees and provide such information, instruction and training to, and supervision of, its employees as was necessary to enable them to perform their work in such a manner that they were not exposed to hazards;
…
7.The plaintiff suffered an injury to his cervical spine, right shoulder joint, left shoulder joint and left elbow joint as a result of the failure of the Defendant as the Plaintiff's employer to take reasonable care not to expose the Plaintiff to unnecessary risk of injury and/or by the negligence of the Defendant its servants or agents caused the Plaintiff to suffer injury loss and damage.

In its defence, the defendant pleads:
3.Save to say that the Defendant owed a statutory duty to the Plaintiff as set out in section 19(1) of the Occupational Health and Safety Act 1994 (WA) and associated regulations, the Defendant does not admit paragraph 3 of the Statement of Claim.
4.Save to say that the Defendant owed the Plaintiff a duty to take precautions to prevent the risk of foreseeable injury to the Plaintiff at common law the Defendant does not admit paragraph 4 of the Amended Statement of Claim.
The defendant denied par 7 of the statement of claim.
In my opinion the particulars of breach of duty set out in par 7 of the statement of claim have been made out to the extent below:
7.1Failing to load the truck in a manner that would allow the plaintiff to use the crane to complete the delivery.
I find that that had not occurred. The items were not slung and they were buried beneath other material on the truck.
7.2Failing to take any or any proper precautions for the safety of the plaintiff whilst he was engaged in unloading the overloaded truck.
I am not satisfied this has been made out in the sense of the truck being overloaded. The evidence does not support an overloading, just an improper means of loading. To that extent, proper precautions were not taken for the safety of the plaintiff.
7.3Unnecessarily exposing the plaintiff to the foreseeable risk of damage or injury.
I find this made out and I will deal with this shortly.
7.4Failing to take any or any adequate measures to prevent injury being suffered by the plaintiff whilst he was engaged in unloading the overloaded and improperly loaded truck.
Again for the reasons which follow, I find this made out, but only to the extent that the truck was improperly loaded.
7.5Failing to provide the plaintiff with a reasonably competent co‑worker.
On the day in question I find this to be established. Whilst it was not normally necessary for the plaintiff to have a co‑worker, on this occasion he had been delayed; he was working against the clock and had asked for assistance. There was a very real risk that the work might not be completed within the available time. In those circumstances there is always a risk that a worker, working against the clock, will fail to take proper care. A co‑worker would have been able to assist in the lifting of the items, or alternatively other items on top of these downpipes, so as to enable them to be removed manually.
7.6Breach of the provisions of the relevant acts or regulations relating to manual handling.
Again, to the extent that I have already noted or as to what follows, I find this allegation to be made out.
This was an accident that was foreseeable. If the truck was not loaded in an orderly manner, with items that ought to be pre-slung placed in a sling, it is foreseeable that a worker would attempt to lift an item and do so in constrained surroundings. It is entirely foreseeable that in doing so the worker might lose his balance and suffer injury. This is particularly so when a worker is under pressure due to the lateness of the loading of the truck and the need to complete the deliveries within a restricted time.
Further, it was an accident that was easily avoidable. No explanation has been provided as to why these downpipes were not placed with the others which were able to be successfully unloaded. Further, given the practice of loading on the basis of first on ‑ last off, or perhaps more precisely last on ‑ first off, the additional pack of downpipes should not have been placed under other materials that were to be off‑loaded later.
In all the circumstances, I am satisfied that the defendant breached its duties as alleged in the statement of claim and to the extent that I have articulated.

The injuries

Left elbow

There is no dispute that the plaintiff injured his left elbow in this incident.
The first treating specialist was Mr Ben Kimberley, an orthopaedic surgeon, who in a report dated 24 August 2010 (exhibit 17.1) described the injury in these terms:
There has been fair suspicion that he may have ruptured a biceps tendon based on his history of pain in the elbow whilst lifting something heavy.
Given that there is no issue as to causation in relation to the left elbow, I do not propose at this point to canvass all the descriptions given of that injury in the various reports. Suffice it to note that Mr Nicholas Anastas, orthopaedic surgeon, called by the defendant, noted in a report of 11 November 2013 (exhibit 67.4), by reference to an MRI scan on 19 April 2011, described the injury as:
A complete tear of the proximal radial collateral ligament with a high grade partial tear of the adjacent deep common extensor origin tendon; high grade partial tear of the proximal ulnar collateral ligament with moderate tendinosis of the common flexor origin; and advance radiocarpal osteoarthritis and mild to moderate ulno-humeral osteoarthritis.

Left shoulder and neck

The plaintiff said that he felt a snapping sound in his elbow but that he also had pain in the shoulder and neck at the same time. The pain in the elbow he described as intense and that, he said, was where the most pain was.
As noted, the same day he was taken for medical treatment to RediMed in Nedlands where he saw a Dr Brooks. He completed and signed a patient information form (exhibit 13). On that form the date of the injury is expressed to be 17 August 2010 but it is common ground that that is an error and it should read 18 August.
On the form under the heading 'Injury Details' the plaintiff wrote 'middle arm' and in response to a question as to which body part was affected, he wrote 'arm'.
In a report of the same day (exhibit 14.2) Dr Brooks noted that the plaintiff
sustained a left arm injury whilst lifting a pack of downpipes off a truck. He felt a sudden onset of severe pain around his elbow area when he was holding the downpipes with his elbow in a flexed position and his forearm supernated.
He goes on to note that on examination the plaintiff had a lot of discomfort with pain on palpation of his distal biceps and biceps tendon, consistent with a tear of the biceps or biceps tendon area. He referred him for ultrasound which showed no abnormality and an MRI scan which recorded that the biceps and brachialis muscles looked normal but a large effusion of the elbow joint was noted but no acute bony injury.
Dr Brooks issued a first medical certificate (exhibit 14.1) in which the doctor noted a biceps tear and, on a diagram of the body, circled the area of the left elbow as being the affected area.
In examination-in-chief in relation to the patient information form (exhibit 13), the plaintiff was asked why he wrote 'arm'. He responded (ts 74):
Because the intense pain at the time was in my elbow … though I had pain – the intense pain was in the elbow, I did hurt my shoulder and neck at the same time … and I did explain that. But the doctor asked me where was the most pain.
Shortly after, he went on to say that the doctor told him that the elbow was inflamed and said (ts 75):
He asked me did I have pain anywhere else, and I said, yeah, I did have pain in me neck and me shoulder but the intense pain was in me elbow.
The evidence reveals that at that time the plaintiff was treated with painkilling and anti-inflammatory medication and his arm was placed in a sling.
On 25 August 2010, the plaintiff completed and signed a worker's compensation claim form (exhibit 15). In that form he was asked to describe, '(1) The most serious injury or disease caused by the occurrence', to which he responded, 'Not sure', and, '(2) The bodily location of the injury', and he wrote, 'Arm'.
In evidence he said he wrote 'arm' and not 'elbow' because 'I still had pain in my shoulder and neck but the pain in the other was the worst pain' (ts 79).
In cross-examination (ts 181 – 2) he said that he had the snapping sound in his elbow and the pain was all the way up his arm. He felt the pain in his elbow more than anywhere else. He confirmed that he did not feel a click in his neck but when asked if he felt pain in his neck he said that he did. He said (ts 182):
I felt pain in my left arm up to my shoulder, up to my neck at the time. The worst pain at the time was in my elbow. But when I went to see the doctor down at Two Hands (RediMed) I explained to him though the main pain was in my elbow at the time, I had pains in my shoulder and they were also in my neck.
The plaintiff came under the care of Mr Kimberley. Mr Kimberley produced a number of reports between 28 August 2010 and 5 November 2011 (exhibits 17.1 and 36.1 to 36.13) and further reports from 16 November 2010 to 16 January 2012 (exhibits 38 to 44).
In his earlier reports Mr Kimberley dealt with an injury to the elbow and its treatment and progression. It was not until his report of 30 August 2011 (exhibit 36.11) that Mr Kimberley referred to the plaintiff having '… some soreness and pain around the left shoulder. An ultrasound has not revealed anything major'.
The plaintiff said in evidence that he had told Mr Kimberley that he had pains in his arm, elbow and upwards. In cross-examination the plaintiff was taken to Mr Kimberley's first report and it was put to him that there was no mention of injury to the shoulders or neck, and that was because he had not told Mr Kimberley about having injured any other body part. The plaintiff disagreed. He was then taken to the report of 30 August 2011 and it was suggested to him that that was the first notation Mr Kimberley had of any injury other than to the elbow. He did not agree.
In his report of 18 October 2011 (exhibit 42) Mr Kimberley noted that the plaintiff also had significant shoulder difficulties. In examination he expanded upon this by saying (ts 152):
There was difficulties with possible, you know, nerves coming down from the cervical spine and the cervical spine – given the passage of – of how things were going with my treatment and given the nature of this injury which was – I felt hard to pin down very simply – I was not too surprised that we found other pathology.
…
It's certainly possible for a pain from the cervical spine through nerve damage and pain from the shoulder through just the – the way shoulder pain radiates – for some of these difficulties further down to have actually been emanating from a source higher up.
In his report dated 16 January 2012 (exhibit 41) Mr Kimberley noted that on first examination of the plaintiff, the plaintiff had reported pain in the left elbow. However, later in the report, under the heading of 'What treatment he believed to be reasonable' he said:
It has also become apparent through the process of following his recovery with the elbow that the shoulder is stiff and painful as well and I suspect some wear and tear within the shoulder and degeneration has become significant in terms of symptoms over the passage of time following his elbow injury.
Later in that report under the heading of 'Prognosis' he said:
I believe his condition to be quite complicated in terms of the combination of medical findings and I also believe that the causation of problems relating to the whole left upper limb is difficult to be precise about. I would certainly regard the left elbow as being a significant exacerbation of a pre-existing condition as a result of a work injury but I am less certain about the shoulder and cervical spine in their causation from my point of view.
In evidence Mr Kimberley was taken to a report of Mr John Liddell, neurosurgeon, dated 7 October 2014 (which became exhibit 35), in which Mr Liddell had said:
The work related accident that occurred on 18 August 2010 has caused or contributed to in a material way the symptoms that Mr Griggs continues to experience in his left elbow, left shoulder, cervical spine and perhaps the symptoms he continues to experience in the right shoulder.
Mr Kimberley was asked whether he agreed with those findings; he said that he did (ts 154). His reason for doing so was that they tend to categorise an injury very rapidly and he gave as examples an elbow, a wrist or a knee. He noted that there had been damage to the left upper limb and went on to say:
In various degrees in various parts of the limb. And just that it doesn't fit into one of the boxes that easily doesn't mean that it hasn't been damaged. You know, I followed a treatment plan with him and it may not have taken into consideration everything to begin with. And that tends to be the nature of the way we manage things. But all the same, he was functioning well, using all parts of this upper limb prior to the injury.
I suspect, you know, the effects of the blow, the force, if you like, in part would have been over some areas, not just the one area.
He went on to say (ts 155):
He would have had some pre-existing degeneration in the neck and shoulder. So you know, there are – there may be susceptibility there, to a blow or something tipping it over the edge. And thirdly, we spent a long time treating his elbow. He would have lost a lot of condition in the muscles and the joints above and below. And that tends to encourage other problems that come about. So yeah, that is a few reasons why you can – you can say either directly or also indirectly, the other parts of this, the neck and the shoulder, have become an issue for him.
Mr Kimberley was asked in cross-examination about the first time the shoulder symptoms were mentioned. He said that (ts 164):
When I first saw him, I made no mention of – or you know, he made an admission, it was not acknowledged, any shoulder difficulty at that point.
However, he went on to say (ts 165):
I can't be certain if he hadn't. It's a recollection thing that he hadn't have complained of soreness in there, but I have to admit – I would have been a little blinkered in focusing on the elbow up to that point.
He went on to note in relation to the left shoulder or neck that he had made no note of it. He said there was nothing significant enough for him to do tests or make a note. In re-examination, he said that he managed the elbow chiefly, but added (ts 175):
I do feel with the other areas that are involved, I may have been a bit blinkered in my approach by just focusing on the elbow, but it does seem to me to be the way it often goes.
In Mr Liddell's report (exhibit 42) it was noted that he (Mr Liddell) had struggled to identify precisely what was wrong with the plaintiff. Mr Kimberley was asked whether he agreed. He replied (ts 172):
I believe this gentleman's – the nature of his injury has been quite complicated. It just hasn't fallen simply into a category, into a simple definable thing, you know, with it – with the areas that we've investigated showing the pre-existing degeneration and – what we have been able to show up with the tests and what we've treated through various combined treatments by different people, it, it's just not been that easy to categorise or treat and that's creating a lot of difficulty.
He went on to say that the main connection with the right shoulder would really be just through loss of general condition, through not being active and that is the only connection he could make. He said that where there is a problem with one limb, the person has to use the other limb for more activities and one starts to get difficulties through that. He thought that was the main thing that would connect to the original injury but a very small connection which he described as a possibility a small percentage if it is at all.
On the issue of whether the plaintiff had advised Mr Kimberley of the problems with his shoulder, the plaintiff disagreed with the proposition that he had not told Mr Kimberley about this.
The plaintiff was seen by Dr David Kennedy, an approved medical specialist by WorkCover WA. Dr Kennedy saw the plaintiff on 30 May 2011. In a report of that day (exhibit 47) he described the plaintiff as having suffered a severe injury to his left elbow joint following his accident on 18 August 2010. He described the injury and in that report made no reference to any injury to the plaintiff's shoulder or neck.
Following examination on that day, Dr Kennedy issued a report on the plaintiff's condition to the effect that it had not stabilised. This was in the prescribed form AMS7 (exhibit 45) and was issued pursuant to the provisions of the Act. In that report, he described the injury as being to the left elbow and forearm. The assessment was made for the purposes of common law under the Act.
In relation to AMS7 and Dr Kennedy's report of 30 May 2011 (exhibits 45 and 47), Dr Kennedy said in evidence that he took a history from the plaintiff.
In that report, Dr Kennedy set out details of the incident and noted that having wrenched his left arm the plaintiff 'felt a clicking sharp pain around the left elbow'.
Under the heading of 'Clinical Progression', Dr Kennedy noted as follows:
Mr Griggs was off work until early January 2011 when he returned to work on restricted duties but had worsening pain in the left elbow joint. He was being reviewed by Mr Kimberly once every two or three weeks with pain around the elbow joint extending into the forearm and then one night he fell asleep on the left shoulder joint and awoke the next morning with severe numbness in the left hand involving the middle ring and little finger.
Under the heading of 'Current Capabilities' Dr Kennedy noted that the plaintiff had swelling and pain in the left elbow, forearm, wrist and hand.
The plaintiff was cross-examined in relation to this report (exhibit 45) and agreed that the examination for the purposes of that report was nine months after his accident. He agreed that he could not remember telling Dr Kennedy about the left shoulder. However, he said that he told the doctor that he had pain up his arm, into his shoulder, and up to the back of his neck.
He was questioned about the report of him sleeping on his shoulder and awaking with numbness in the left hand. It was put to him that his shoulder pain came on after he woke one morning. He denied that to be the case. He said that the notation by Dr Kennedy was wrong.
Dr Kennedy produced a further report on 18 April 2012 (exhibit 48) following examination on 3 April 2012. In that report Dr Kennedy said that the injuries sustained by the plaintiff to his neck and left upper extremity were consistent with the description of the workplace accident and there were no obvious discrepancies between his then current symptom presentation and his clinical findings on examination. In examination-in-chief he said that when he initially saw the plaintiff on 30 May 2011, the underlying focus was on his left elbow. When he saw him in April 2012 he said 'It became evident the problems had been present, became more significant in their appearance in respect to the cervical spine and the left shoulder joint'. He went on to say that when discussing the methodology of the injury, it was consistent with what had transpired at the time of the initial accident. He said that the matters that he had not been focusing on previously became more evident in relation to the cervical spine and the left shoulder joint.
He went on to say that from his initial history there was no previous history of any injury or problem to the plaintiff's neck or upper extremities prior to the accident.
He was cross-examined about his report in form AMS7 (exhibit 45) and agreed that when he saw the plaintiff on 30 May 2011 he did not record any complaints of shoulder or neck pain. He went on to say that after he saw him on 3 April 2012, and going through the history more specifically, a number of things had happened to the plaintiff's neck and his left shoulder. He said he went through the history to see if there was a correlation between what had subsequently transpired in the neck and the left shoulder and the original accident.
He was asked what history he obtained from the plaintiff as to when his cervical pain first came on. After trying to relate that to others reports and being brought back to the question, he answered that the plaintiff did not exactly say when those symptoms came on. He agreed that he had not been told that they came on immediately after the accident.

With regard to the left shoulder, he was asked a similar question as to when that symptomology commenced. He said that when he first saw him, the plaintiff spoke of the elbow and forearm and the problems with the shoulder started when he was lying on his left shoulder. He did not say when that was.
Dr Kennedy went on to opine that the plaintiff initially injured his shoulder and neck at the time of the accident and went on to develop secondary problems in the right shoulder. He said he probably injured his left shoulder at the time of his accident and the left side of his lower cervical spine. The methodology of the injury was consistent with an injury to those areas.
With regard to the right shoulder he noted that there was no history of right shoulder injury. He was of the view that the plaintiff developed right shoulder joint problems during the passage of time because of the extra load and stressors on his right shoulder by reason of the enormous problems that the plaintiff was having with his left arm.
Dr Kennedy appeared to sum it up by saying that the wrenching of the plaintiff's left arm at the time of the initial accident could be sufficient to cause damage to the lower cervical intervertebral disc which did not become overtly obvious to either the patient or his treating doctors until the resolution or the improvement of the problems in his left elbow joint.
In the context of who he had told about his shoulder injury the plaintiff said that he had told Dr Brooks (the doctor at RediMed), Mr Kimberley, Dr Kennedy and a Dr Hamersley – to whom I will come shortly. As I have observed, with regard to Dr Brooks, he said that Dr Brooks asked him where the most pain was at that moment and he replied that most of the pain was in the left elbow. He said that Dr Brooks asked if there was pain anywhere else and he said he told him he had pain up his arm, into his shoulder and into his neck, but the worst was at the elbow.
The medical notes of the plaintiff's general practitioner were put into evidence (exhibit 3). On 3 March 2011 he attended upon Dr Wong. The notes reveal that he told Dr Wong that he had hurt his left elbow and had stretched his tendon. It was put to him that on that occasion he had not mentioned his shoulder and he responded that Dr Wong had not asked him. Later, he saw his other general practitioner, Dr Mutahar, on 26 October 2011 in connection with his worker's compensation claim. In relation to that visit, the notes reveal 'complex history – left elbow and shoulder injury'. He agreed that he had told Dr Mutahar that he had hurt both his elbow and shoulder on that occasion but agreed that he had not mentioned his neck. He said that that was because the doctor asked him where the pain was and he told him it was in his shoulder, upper forearm and elbow.
He was then taken to a visit on 4 November 2011 where there is reference to injury to the neck. He agreed that that was the first time that he had told Dr Mutahar about this.
I do not accept the plaintiff's evidence that he had told his treating doctors of any injury to or problem with his shoulder or neck in the initial stages of the management of his elbow injury or on his return from his holiday immediately after the accident.
I find that the plaintiff is not a reliable historian. This is demonstrated by his unequivocal acceptance of his curriculum vitae (CV) as set out in the ORS report (exhibit 1). In cross-examination it was demonstrated very clearly that the plaintiff was not able to be specific about his work history and much of the chronology in that CV was wrong and not just in respect of minor particulars.
In addition, in evidence-in-chief he said he had never lost time from work, was never sick and was fit. When asked about visits to the doctor he merely referred to having had flu once and a fear of bowel cancer, it being in the family. Specifically, he said he never went to the doctor for any aches and pains before his accident and, in respect to his then current general practitioner, he was asked whether he had attended the practice for any complaints about the back, shoulder or neck and he said that he had not.
In a 'Patient Confidential Record Sheet' (exhibit 4) for the purposes of his employment with the defendant, the plaintiff completed a medical examination form in which he noted that he had not 'at any time in (his) life' had low back pain. I accept that the purpose of such a form is to enhance the chance of employment and it was completed with that in mind. On its own I may not have paid much regard to its accuracy but, when coupled with the other matters to which I refer, it does assume some importance in relation to the plaintiff's reliability as a witness.
In providing his medical history to his treating doctors in respect of the current matter, he did not describe any back problems in the past.
In cross-examination he divulged, for the first time, that he had had surgery, being a discectomy performed by Mr Peter Watson, following an injury when he fell from a dock whilst working at Graylands Hospital and which was the subject of a worker's compensation claim.
Whilst I accept that the question about back complaints was in relation to his general practitioner at the time of his current injury, his failure to refer to the previous back injury suggests that he was not prepared to be open and candid about this. His failure to report it on exhibit 4 and to divulge it to his treating doctors and his general statements about his health and fitness demonstrate, at best, that he is an unreliable historian and, at worst, that he is prepared to omit anything in his history which might be adverse to his interests.
There is no suggestion that the back injury and surgery has left him with any disability but it is not something that would be likely to be forgotten or overlooked by the plaintiff. It would, no doubt, have involved surgery as an inpatient and some rehabilitation and time off work given that the plaintiff was a manual worker.
Accordingly, I am not prepared to accept his evidence that he told his treating doctors from the outset that he had any symptoms in his shoulder and neck. Whilst Mr Kimberley may have had a 'blinkered' view, that merely means that he might not have asked any questions about the shoulder and neck but given the history that he was provided with, that is not surprising.
If it was a case of one doctor failing to note an injury or symptom that had been reported in those areas, that may be accepted as being an oversight on that doctor's part. However, I cannot accept it to be the case where multiple doctors have not recorded such a condition. In reaching this conclusion I have had regard to and am mindful of the fact that the notes taken by doctors are not always accurate or complete.
The only explanation is that the plaintiff did not tell them of symptoms in those areas. That the plaintiff was prepared to give evidence to the contrary, coupled with the other matters to which I have referred, renders him unreliable and not prepared to give evidence in a way in which may not assist his case or possibly have some adverse impact on it.
Accordingly, where matters are in contest, I would not generally be prepared to accept his evidence unless it was independently supported.
Notwithstanding that finding, there is still the issue as to what problems the plaintiff does have with his shoulders and neck and whether they are causally connected to his injury on 18 August 2010.
To enable a proper consideration of this issue, it is necessary to trace the plaintiff's attendances on various doctors and the treatment that he received.
Having initially seen Dr Brooks on the day of the accident, when his treatment comprised ultrasound and MRI scans of the left elbow and prescript of analgesic and his arm being placed in a sling, he then came under the care of Mr Kimberley.
Mr Kimberley first saw the plaintiff on 24 August 2010 (exhibit 17.1) and, having noted marked arthritis in the elbow, sent him for hand therapy. Mr Kimberley reviewed the plaintiff on 31 August 2010 and noted gradual improvement with the elbow. By 19 October 2010 Mr Kimberley continued to note steady progress (part exhibit 36).
On 30 November 2010, the plaintiff underwent a left elbow arthroscopy with debridement (exhibit 18) which according to the report of Mr Kimberley of 1 December 2010 (part exhibit 36) revealed anterior loose bodies, synovitis, and spurring and the same pattern posteriorly. Mr Kimberley anticipated improvement.
By the time of Mr Kimberley's file note of 22 February 2011 (part exhibit 36) the plaintiff had had a cortisone injection in the left elbow. The file note of that date suggested some improvement.
On 12 April 2011, the plaintiff was seen again and his elbow was 'as sore as ever' (part exhibit 36). Ultrasound for tendonitis and EMG studies were arranged.
In a file note dated 3 May 2011 (part exhibit 36) Mr Kimberley noted that an MRI and ultrasound had revealed flexor origin tears and ligament damage in the elbow. Mr Kimberley said:
I am a bit uncertain as to the relevance of these findings given he has quite considerable arthritis within the elbow. If the elbow fails to improve over time despite the arthroscopic debridement, the only other thing to consider might be ligament reconstruction with repair of the extensor tendon.
On 5 May 2011, Mr Kimberley's file note records:
He has an arthritic elbow which is a pre-existing thing, but I believe there has certainly been further damage done on top of this as a result of the work injury.
Surgery was carried out on 13 May 2011 and comprised left elbow reconstruction and extensor tendon repair (exhibit 21).
Following that surgery Mr Kimberley reviewed the plaintiff on 9 August 2011 (part exhibit 36) and noted difficulties with pain in the elbow and lack of strength. A cortisone injection was recommended. It appears that that gave some relief but by 30 August 2011 (part exhibit 36) the elbow was still sore with weakness. It was at this stage that Mr Kimberley noted pain and soreness around the left shoulder but an ultrasound had not revealed anything major. An MRI of the left shoulder on 15 September 2011 (exhibit 22) revealed synovial capsular thickening around the shoulder joint including involving the inferior and posterior glenoid margin and the rotator cuff interval. A comment to that report notes:
Synovial capsular thickening of the glenoid humoral joint, in a pattern typical of that seen in association with adhesive capsulitis.
On 15 August 2011, the plaintiff saw Dr Christopher Hamersley, occupational physician, at the request of the defendant. Dr Hamersley produced a report dated 16 August 2011 (exhibit 46.2).
Under past history, Dr Hamersley noted that the plaintiff had never had a back or neck injury.
With regard to the injury on the day in question he recorded that:
Over that day, the elbow swelled and continued to be painful. He also had pain going down the forearm. There was also pain in the left shoulder top and in the left shoulder acromiodeltoid area.
Dr Hamersley noted that the plaintiff complained that he could not lie on the posterior aspect of the left shoulder without pain and that had been so since the first two weeks after the date of the injury.
Examination of the neck revealed full and generous movement without pain. Palpation of the left shoulder revealed tenderness along the long head of biceps tendon, particularly at the anterior acromial.
Dr Hamersley carried out measurements of shoulder movements which are set out in the report and said that those findings were suggestive of a shoulder injury.
In that report, Dr Hamersley noted:
The scenario presented provides a complex diagnostic challenge. It is my opinion that the original injury is not well documented and symptom generators higher up the arm may have been overlooked. Alternatively these features may have developed over time, possibly through restricted left arm use or sling wearing.
In his evidence Dr Hamersley said that he thought that there could be a shoulder injury 'given that he started reporting symptoms two weeks after the injury date'. As a result he was 'comfortable with that model'.
The plaintiff was also reviewed by Dr Peter Slibert, neurologist, on 10 October 2011 and 19 October 2011. In a letter dated 18 October 2011 to Mr Liddell (exhibit 59.1) Dr Silbert noted the plaintiff had a 'very complex presentation'. He said he probably has a left C7 and C8 nerve root radicular symptoms from his work‑related injury on 18 August 2010.
In a further letter of 19 October 2011 to Dr Hamersley, he again referred to the history as being complex in that with the initial event, he probably sustained two injuries. He noted that the left elbow was 'more sorted' out by Mr Kimberley but the other radicular problem was more symptomatic. The plaintiff reported a tingling sensation in the left hand, mainly involving the ulnar border of the hand extending to the third, fourth and fifth digits. Dr Silbert noted that the EMG studies would be consistent with left C7 and C8 nerve root changes. The MRI scans showed severe left C6/C7 and C7/T1 foraminal narrowing consistent with his left C7 and C8 EMG findings and symptoms.
The EMG report referred to (exhibit 59.2) under the heading of 'Interpretation', said:
The EMG findings were complex and a clinical review has been arranged as requested. There is a mild left ulnar neuropathy in the hand and a left C8 radiculopathy or the residua of the patient's plexopathy.
In the meantime, the plaintiff was reviewed by Dr Kennedy, but I will return to his involvement later.
On 14 December 2011, the plaintiff was seen by Mr Peter Honey, orthopaedic surgeon. In his report of that date (exhibit 57.1) he noted ongoing pain in the elbow and recorded complaints of neck pain and cervical nerve root impingement. In addition, he noted complaints of pain and weakness in the left shoulder. Mr Honey recorded:
He has a relative atrophy of the left shoulder girdle muscles and was quite tender over the insertion of the supraspinatus tendon. Active movement of the arm was accompanied by a painful click through the mid-arch of elevation. His supraspinatus tendon seemed specifically weak.
In that report, Mr Honey noted a review of the MRI scan and said:
I thought it showed a partial thickness tear of the supraspinatus tendon and that his upper subscapularis tendon was also not normal.
He opined that the plaintiff would succumb to shoulder joint arthroscopy and inspection of the tendon and, if the tear was significant, repair would be performed.
Mr Honey again reported on 19 December 2011 (exhibit 57.2) that surgery would have a good chance of giving him good symptomatic relief. He thought he would benefit from left shoulder and left elbow surgery but he was yet to have scheduled cervical surgery.
That cervical surgery took place on 11 January 2012 under Mr John Liddell, neurosurgeon. His operation report (exhibit 25) noted that the plaintiff's C6/C7 and C7/T1 disc spaces were operated on and the C7 nerve root appeared to have been adequately decompressed. A similar procedure was carried out at C7/T1 where the degree of stenosis was less than at C6/C7.
After that surgery, Mr Honey saw the plaintiff again and, in a report of 3 April 2012 (exhibit 57.3), he noted that notwithstanding the cervical decompression, there had not been significant relief of symptoms. Mr Honey thought the plaintiff would benefit from shoulder and elbow surgery.
On 18 July 2012, Mr Honey noted (exhibit 57.4) that the left shoulder appeared to be going well with respect to range of motion but the plaintiff still complained of anterior pain. He had good strength. However, there was complaint of shoulder pain and numbness and tingling in the fingers of the right hand, which Mr Honey thought was cervical referred or carpal tunnel syndrome.
Finally, in a report of 13 March 2013 (exhibit 57.5) Mr Honey noted that the plaintiff continued to have pain and numbness in the left upper extremity and complained of problems with the elbow and shoulder, although the doctor thought that the shoulder was doing well, with a good range of movement and reasonable strength but with some ongoing tenderness and pain at the extremes of range. Further x‑rays were carried out and the shoulder looked okay but the elbow showed degenerative changes. Mr Honey did not recommend any further treatment of the shoulder.
I have noted the cervical surgery. The plaintiff came under the care of Mr John Liddell in October 2011.
In a report dated 25 October 2011 (exhibit 60.1) Mr Liddell noted that the plaintiff had discomfort in the back of his neck, especially on the left, together with ongoing discomfort in the upper aspects of the left arm along with numbness and weakness. Examination revealed significant muscle wasting around the left shoulder and elbow. Cervical spine movements were full and almost pain free with no specific spinal tenderness. Neurological examination was unremarkable. A review of an MRI scan showed significant degenerative changes at a number of levels associated with moderately severe degree of foraminal stenosis on the left at C4/C5, bilaterally at C5/C6, on the left at C6/C7, and C7/T1.
Mr Liddell reviewed him again on 27 October 2011, again noting the degenerative changes/displaced narrowing at C6/C7 and, to a lesser extent, C5/C6 without any evidence of instability. Again, spinal movements were full and almost pain-free and his neurological examination was unremarkable. He considered it was reasonable to decompress the left C7 and C8 nerve roots.
By 17 November 2011 (exhibit 61.2) the plaintiff had had a left C7 nerve root block, which did not have any impact upon his symptoms. A C8 nerve root block caused the left middle ring and little finger to go numb and made the pain in his elbow worse. Mr Liddell noted a 'severe degree of foraminal stenosis on the left at C6/C7 and to a lesser extent at C7/T1'. In examination‑in‑chief he explained, in relation to the foraminal stenosis, that the nerve roots come off the spinal cord, egress through a bony canal called the foramen and that stenosis is simply a narrowing of that bony canal.
On 13 December 2012, Mr Liddell produced a lengthy report (exhibit 61.17). In the history section of that report he noted that the plaintiff complained that whilst unloading the truck
he developed the acute onset of 'agonising pain' around his elbow, with radiation up his arm to his shoulder, and down to his forearm.
Mr Liddell described his examination and the plaintiff's progress and formed the opinion that the plaintiff 'quite likely sustained an injury to his cervical spine and perhaps an injury to his left upper limb and/or brachial plexus, as a consequence of the work related accident in question'. The doctor believed that the ongoing symptoms were consistent with that diagnosis. However, he did say that the precise aetiology of the ongoing discomfort remained unclear. He was also of the view that the degenerative changes in the cervical spine undoubtedly pre-dated the accident in question but it would appear the changes were 'likely rendered symptomatic by that accident'.
At that time, Mr Liddell was recommending anterior cervical fusion, and said that on the available information he believed that the surgery required was caused or occasioned by the injuries sustained in the accident on 18 August 2010.
As I have noted, surgery took place on 11 January 2012 and was posterior cervical decompression. On the day before, in a report dated 10 January 2012 (exhibit 61.5), Mr Liddell reported that the plaintiff had experienced some subtle symptoms in his right arm in the last few weeks.
Mr Liddell saw the plaintiff again on 27 February 2012, post‑operation, and noted that he continued to experience ongoing bilateral shoulder discomfort, together with bilateral (left greater than right) paraesthesia and numbness in the middle, ring and little fingers of both hands (right greater than left). Mr Liddell doubted that there was much that could be done to improve the situation.

The tenor of all of the medical evidence is that the doctors have been unable to establish a clear link between the accident and the shoulder and neck symptoms. As Mr Liddell put it, when attempting to attribute the problem to the accident he was 'hedging his bets'. Such an approach coupled with the lack of any scientific nexus relevant to the history of the matter is hardly a basis for satisfying the 'but for' test or to find causation based on ordinary common sense and experience and to regard the accident as having materially contributed to the harm.

Determination

I am satisfied that the plaintiff injured his elbow. I am not satisfied that he injured his shoulder(s) or neck.
Dr Kennedy assessed the PWPI of the plaintiff by reference to the elbow alone at 2%. Mr Anastas put it at 3%. Whilst the findings of the doctors is a valuable guide, it is for the court to determine the plaintiff's degree of PWPI using those assessments and the reports provided by accredited medical specialists to assist in making the determination: Armitage v Tenix Defence Pty Ltd [2008] WADC 150 [67] ‑ [71]. However it is not necessary for me to proceed with that exercise to see which, if either, of those doctors is correct as it is an academic and artificial exercise because on any basis the plaintiff would not reach the threshold of 15% PWPI to enable any award of damages to be made.
That being the case, the plaintiff's case must be dismissed.
In many cases where the plaintiff's case is dismissed it is appropriate to proceed to make a provisional assessment of damages. This is not one where I can do so with any degree of confidence.
I have expressed my view on the plaintiff and his evidence. I cannot be satisfied as to the extent of his disabilities after the accident and when they arose. I have remarked that he is not a reliable witness and is not prepared to accept any position that may not assist his case. That lack of reliability affects the whole of his evidence as to the happening and extent of his injuries or symptoms and their progression.
The only area where I could be comfortable is in relation to his elbow and what flows from that. As I have noted, it is a futile exercise to isolate that for the purposes of an assessment of damages where the plaintiff would be unable to recover by reason of the provisions of the Act.

Conclusion

The plaintiff's claim must be dismissed.