Hendy v VWA
[2023] VCC 2176
•28 November 2023
H
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-01874
| Dale Hendy | Plaintiff |
| v | |
| Victorian WorkCover Authority | First Defendant |
| and OzPress Pty Ltd | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 August 2023 | |
DATE OF JUDGMENT: | 28 November 2023 | |
CASE MAY BE CITED AS: | Hendy v VWA & Anor | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2176 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious Injury – pain and suffering – range case
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622; Dwyerv Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; HuntervTransport Accident Commission & Avalanche [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181; TAC v Dennis [1998] 1 VR 702; TTB SMS Pty Ltd v Reading [2020] VSCA 203.
Judgment: Application refused
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Ingram KC | Slater and Gordon |
| Ms S. Fernando | ||
For the Defendant | Mr R. Stanley | IDP Lawyers |
HIS HONOUR:
1The plaintiff is right hand dominant. On 15 February 2012, he suffered injury to the thumb of his left finger in the course of his employment. Surgery followed. The plaintiff says the injury constitutes an impairment to the function of his thumb and presents him with continuing consequences that are serious. He therefore seeks the grant of a serious injury certificate pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”), to enable the commencement by him of common law proceedings for damages for pain and suffering.
2The plaintiff was represented by Mr Ingram of King’s Counsel, together with Ms Fernando of Counsel, and the defendant was represented by Mr Stanley of Counsel.
3The plaintiff’s Particulars of Injury are expressed as:
(a) Deep laceration to the left thumb;
(b) Division of the flexor tendon in the left thumb;
(c) Division of the inner sensory nerve of the left thumb;
(d) Scarring and disfigurement of the left thumb;
(e) Dysfunction of the left thumb;
(f) Pain, shock and suffering.[1]
[1] Plaintiff’s Particulars of Injury filed 28 February 2023.
4The scope of the application is comparatively narrow and, is predominantly, a type of claim, sometimes referred to compendiously as a “range” case.
The plaintiff’s evidence
5The plaintiff relied on the following evidence:
(a) Image of Google Maps;[2]
[2]Exhibit P1.
(b) Three photos of racing memorabilia;[3]
(c) Two photos of gloves;[4]
(d) Two affidavits of the plaintiff sworn 17 December 2021,[5] and 1 August 2023;[6]
(e) Operation Report of Mr Steve Csongvay dated 17 February 2012;[7]
(f) Ultrasound dated 20 July 2023;[8]
(g) Medical Report of Dr A.G. McDonald dated 12 July 2013;[9]
(h) Medical Report of Ms Rosemary Overton dated 1 August 2013;[10]
(i) Two Medical Reports of Dr Murray Stapleton dated 30 March 2023,[11] and 11 August 2023;[12]
(j) Medical Report of Dr Robyn Horsley dated 20 April 2023;[13] and
(k) Medical Report of Dr Ajay Reddy dated 7 August 2023.[14]
[3]Exhibit P2.
[4]Exhibit P3.
[5]Exhibit P4, Plaintiff’s Court Book (‘PCB’) 19-23.
[6]Exhibit P4, PCB 24-26.
[7]Exhibit P5, PCB 38.
[8]Exhibit P6, PCB 39.
[9]Exhibit P7, PCB 41-42.
[10]Exhibit P8, PCB 43-44.
[11]Exhibit P9, PCB 54-61.
[12]Exhibit P9, PCB 71-72.
[13]Exhibit P10, PCB 62-68.
[14]Exhibit P11, PCB 73-76.
The defendant’s evidence
6The defendant relied on:
(a) Medical Report of Dr Sachin Khullar dated 1 November 2021;[15] and
(b) Clinical notes.[16]
[15]Exhibit D1, Defendant’s Court Book (‘DCB’) 3-8.
[16] Exhibit D2, DCB 10-50.
7I have read and had regard to the lay and medical evidence relied on by the parties, together with the affidavit evidence, and the cross-examination and re-examination of the plaintiff, and the final addresses of counsel. In the reasons that follow, I have referred to so much of the evidence as proved necessary to explain my reasons and findings.
Serious Injury
8“Serious injury” is defined by section 325(1) of the Act and it provides:
“‘Serious injury’ means –
(a) permanent serious impairment or loss of a body function ….
(b) …
(c) …
(d) …”
9The plaintiff’s application for leave relies on sub-paragraph (a) of the definition of “serious injury.” The part of the body said to be impaired for the purposes of paragraph (a) is the left thumb.
Relevant legal principles
10There are a number of settled legal principles that inform the question of a grant of leave. The Court must not give leave unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury.”[17]
[17] Section 335(5)(a) of the Act.
11In order to establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
(a) “the injury” suffered by him arose out of, or due to the nature of his employment with the employer on or after 1 July 2014;[18]
(b) “the injury” and resulting impairment is “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[19]
(c) the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable.”[20]
[18] Section 5(1) of the Act.
[19] Barwon Spinners Pty Ltd & OrsvPodolak [2005] VSCA 33, [33].
[20] Section 325(2)(b) and (c) of the Act.
12The requirement to satisfy the elements mentioned above is sometimes referred to as the “narrative test.” It has been said that the question of whether an injury satisfies the narrative test is largely one of impression, or value judgment.[21]
[21]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 628; see also Sabo v George Weston Foods [2009] VSCA 242, [67].
13Furthermore, in determining the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.
14In addition, and in determining the application:
(a) the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of sub-paragraph (c) of the definition of “serious injury” and not otherwise;[22]
(b) the Court must assess whether “the injury” is a “serious injury” as at the time the application is heard;[23]
(c) the Court must give reasons that disclose the pathway of reasoning in dealing with the evidence, and issues raised by the application.[24]
[22] Section 325(2)(h) of the Act.
[23] Section 325(2)(j) of the Act.
[24]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26].
15In assessing the seriousness of the claimed impairment consequences, the Court is required to consider both the effects of the impairment, and those aspects of the body function that remain unaffected.[25]
[25] Dwyer v Calco Timbers Pty Ltd(No 2) [2008] VSCA 181 (‘Dwyer’).
16The “consequences” to the plaintiff of any impairment, or loss of body function in relation to sub-paragraph (a) of the definition of serious injury must be “serious”. This is expressed in section 325(2) and, in particular, sub-paragraphs (b) and (c), which state:
(b)the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, … as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, … respectively;
(c)an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of section 335(2) unless -
(i) the pain and suffering consequence …
is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;” (Emphasis added).
The plaintiff
17The plaintiff was born in 1968. He was educated to Year 9. He worked for approximately two years for the Salvation Army as a labourer and maintenance worker. Further work followed as a linesman in the Army for approximately three years. He then worked for approximately 14 years with Bendix as a machinist in Ballarat. Next, the plaintiff was employed at McCain as a process worker for approximately four years. He then came to be employed as a machinist for OzPress Pty Ltd in Mitchell Park, where car part components were made for Toyota motor vehicles.
18Given the physical nature of the plaintiff’s working life, it is not surprising that he has experienced pain in various parts of his body. There is some history in regard to other parts of his body that have affected him. In the course of the hearing of the application, Mr Stanley would come to make arguments about the extent to which they have had an effect on the plaintiff’s capacity separate from the thumb injury.
19Whilst working at Bendix the plaintiff experienced pain in both shoulders. He had cortisone injections in about 2016. He saw Mr Paul Plank, orthopaedic surgeon. The shoulders apparently responded well to the injections, especially the right shoulder, and surgery was not required. The plaintiff said he was able to continue working and to engage in his leisure pursuits. The plaintiff says that his left shoulder soreness has settled considerably and is only intermittently annoying.
The accident, injury, and immediate aftermath
20On 15 February 2012, the plaintiff was engaged in his employment as a machinist for OzPress Pty Ltd. The subject injury occurred when he was operating a 400-tonne press, making engine moulds. Steel was wound around a turning mandrill and fed into the press to make the engine mounts. As he was operating the press, a piece of steel caught on the mandrill. The plaintiff reached to the steel to push it back, when his left thumb became caught on the steel, causing a severe laceration.
21He was taken to the Ballarat Base Hospital, and his thumb was sutured. Two days later, he was referred to Mr Csongvay, a plastic surgeon whose operation record dated 17 February 2012, reveals that the long flexor tendon for the thumb was completely divided and repaired, as was the ulnar digital nerve, which is the sensory nerve on the inner aspect of the thumb. Mr Csongvay elected to repair the ulnar digital artery using microvascular techniques.
22The plaintiff has received no further treatment for his 2012 injury. He takes Panadol as required for pain management.
23The plaintiff was off work for eight weeks, and then returned to employment on lighter duties. Six months later, he resigned from his employer.
24The plaintiff next worked as a line setter for True Foods in Maryborough for approximately four years until November 2014. He then returned to OzPress Pty Ltd for approximately 15 months.
25The plaintiff subsequently came to be employed by Formex Engineering in Ballarat where coils are made. His work was physically demanding and involved considerable twisting and dragging of coils. The plaintiff began to experience left knee soreness. A left knee MRI was performed on 14 October 2019.
26The plaintiff was seen by Mr Plank for his left knee condition, and on 4 February 2020, arthroscopic surgery was performed. The plaintiff had a torn medial meniscus.
27Approximately two months after his left knee surgery, the plaintiff commenced working as a welder on a full-time basis for Sovereign Concrete in Ballarat. It is with it, that he continues to work full time.
The plaintiff’s affidavit evidence
28The plaintiff made two affidavits.[26] The narrative that follows is distilled from them.
[26] Exhibit P1, Affidavit sworn 17 December 2021 and Affidavit sworn 1 August 2023.
29The plaintiff explained the difficulties he encounters gripping items with the use of his left hand. He said that at work, if he knocks his left thumb, or he picks something up awkwardly, he experiences a sharp shooting pain in his left hand that may last for about 10 seconds. He said this occurs frequently. At work he endeavours to avoid heavy lifting requiring the use of his left hand, and he uses a forklift to do as much lifting as possible, otherwise, he obtains assistance from a co-worker.
30The plaintiff described his base level of pain in winter as about three out of ten, although it can rise to ten out of ten when very cold,[27] and when this occurs, the pain is relieved once he has warmed up his left hand. The plaintiff lives outside of Ballarat, and one may take notice that Ballarat can be very cold indeed in winter.
[27] Exhibit P1, PCB 25, paragraph 4.
31The plaintiff explained that the absence of treatment for his left thumb is explicable, because he does not understand that there is anything further that can be done for it.
32The plaintiff said he takes Panadol Plus, purchased from the supermarket, and he consumes about four tablets twice a week.
33The plaintiff complains of a loss of grip strength in his left hand. He has difficulties with finer movements involving the use of his left thumb and his left index finger.
Work activities
34The plaintiff said that many tasks he performs at work are manual.
35Mr Ingram presented two sets of gloves to the Court, as representing the type that the plaintiff wears to maintain heat in his hand.[28] The plaintiff said that he wears gloves every day at work. He said that their use has the effect of preventing him from inadvertently cutting himself, or getting splinters that he would otherwise not feel due to a lack of sensation.[29]
[28]Exhibit P3, two photos of gloves.
[29]Transcript (‘T’) 5, Line (‘L’) 4-5.
Sport and recreational pursuits
36The plaintiff deposed that as a result of the injury to his left thumb, he has been required to give up harness racing and training harness horses. He described this pursuit as a major interest and passion in his life. On his hobby farm at which he lives with his wife, he built a harness racing track, apparently, at considerable cost, which he no longer utilises and it has fallen into disrepair. He said he has sold off his horses but one. He can no longer race horses because of the difficulties with his thumb and his left hand.
37The plaintiff tendered three photos depicting some of the races won by ‘Franco Freddy,’ a horse he had previously trained for harness races.[30]
[30]Exhibit P2, three photos of racing memorabilia.
38The plaintiff’s other interest has been his hobby farm. He deposed that he is very restricted in what he can do on the farm, because of his left thumb injury. He said that he can no longer use an axe or a wood splitter to chop up the wood as he once did. He can no longer undertake heavier tasks around the farm such as putting in fence posts, and he now depends on his son to come out to help him with this task when required.
39The plaintiff said that he is restricted in playing with his grandchildren, because of the left thumb injury.
40The plaintiff said that his sleep is interrupted and disturbed about two or three nights a week, due to pain in his left thumb.
The plaintiff’s medical evidence
Mr Steve Csongvay
41The plaintiff tendered Mr Csongvay’s operation record dated 17 February 2012.[31] He performed a surgical repair of the plaintiff’s left thumb laceration, tendon ulnar digital artery and digital ulnar nerve. The findings were recorded as “deep laceration of the flexor aspect of the left thumb.”[32]
[31]Exhibit P5, PCB 38.
[32]Exhibit P5, PCB 38.
42The plaintiff has not recently attended Mr Csongvay for review.
Dr A.G McDonald
43Dr McDonald is a general practitioner whose opinion is historical, and who completed a WorkSafe General Practitioner Questionnaire dated 12 July 2013.[33] In response to whether he considered that the injury would permanently affect the plaintiff, he wrote that there is a “permanent functional disability of left hand.”[34] He also reported that the injury was affecting the plaintiff’s physical activity, and his social and recreational activities.
[33]Exhibit P7, PCB 41-42.
[34]Exhibit P7, PCB 42.
Ms Rosemary Overton
44Ms Rosemary Overton is a hand therapist who treated the plaintiff following surgery. She completed a WorkSafe Allied Health Questionnaire dated 1 August 2013.[35] In it, she noted, that the plaintiff’s range of motion of his “IP joint” was 36 degrees and that the injury was having an effect on his physical activity, and his range of motion was limited.
[35]Exhibit P8, PCB 43-44
Dr Stapleton’s first report
45Dr Murray Stapleton is a plastic and hand surgeon who provided two reports dated 30 March 2023, and 11 August 2023.[36]
[36] Exhibit P9, PCB 54-61, 71-72.
46Dr Stapleton first examined the plaintiff via telehealth on 15 March 2023.
47Dr Stapleton reported that the plaintiff had some, but not convincing flexor tendon movement.[37] He had a reduced range of flexion of the thumb at the metacarpophalangeal joint. He was very awkward with his left hand, and the power of his grip was diminished, such that he cannot hold items like an axe. The plaintiff explained to Dr Stapleton that he enjoyed working on his hobby farm and had purchased a mechanical wood splitter because of his inability to safely hold an axe.
[37]Flexor tendons are cord-like structures running from the forearm across the wrist and palm and into the fingers, allowing you to bend your fingers and thumb to grasp an object or make a fist. Injuries to the flexor tendons can cause a loss of the ability to bend one or more of the joints in your hand.
48Dr Stapleton said that sensation had not returned to the ulnar side of the plaintiff’s thumb, and in cold weather, his “whole thumb goes numb.”[38] The incision through which the flexor tendon was repaired, remained tender, and limited the plaintiff’s power of grip to the left hand when he was performing work. Dr Stapleton observed that the plaintiff wears gloves at work.
[38]Exhibit P9, PCB 55.
49On examination, Dr Stapleton found that over the flexor surface of the left thumb, there was a six centimetre scar and movements were:
Interphalangeal joint 0-30°
Metacarpophalangeal joint 0-30°[39]
[39]Exhibit P9, PCB 56.
50The plaintiff told Dr Stapleton about his hobbies of speedway car racing,[40] harness racing, together with activities he enjoyed on his hobby farm.
[40] The evidence did not identify if there had been a loss of the pursuit of speedway car racing.
51The plaintiff reported an absence of appreciable sensation running down the ulnar side of the thumb. Dr Stapleton recorded no sensory loss on the radial side of the thumb.
52Dr Stapleton commented that because the plaintiff was much more awkward with his left (non-dominant) hand due to the injury, “his social, domestic, and recreational activities, of course, are all affected.”[41]
[41]Exhibit P9, PCB 57.
53Dr Stapleton thought that an ultrasound of the plaintiff’s hand may reveal a site where scarring had prevented a complete travel of the flexor tendon and he considered that a tenolysis,[42] may increase the travel.
[42]Tenolysis is a surgical procedure to release or free a tendon from adhesions.
Radiology
54An x-ray and ultrasound of the left hand dated 20 July 2023 was tendered.[43] It found “focal area of heterogeneity within the flexor tendon in the region of the IP joint with calcifications. Changes could be related to calcifications within the tendon, probably related to prior injury.”[44]
[43]Exhibit P6, PCB 39.
[44]Exhibit P6, PCB 39.
Dr Stapleton’s second report
55In a brief second report dated 11 August 2023, Dr Stapleton responded to the ultrasound carried out on 20 July 2023.[45] He wrote that it had identified that the flexor tendon of the injured left thumb had a calcification, which was barely interfering with the travel of the injured thumb.
[45]Exhibit P6, PCB 39.
56Dr Stapleton went on to say that in order for the plaintiff’s thumb to be freed from the triggering mechanism, he should return to Mr Csongvay for an opinion whether it was feasible to have a tenolysis performed.
57I pause here and note, that Mr Ingram said that the plaintiff does not intend to pursue surgical intervention. Mr Ingram submitted that the plaintiff’s attitude towards surgery should be regarded as reasonable in the circumstances, and Mr Stanley did not challenge the reasonableness of the plaintiff’s expressed attitude.
Dr Robyn Horsley
58Dr Horsley is an Occupational Physician. She examined the plaintiff at the request of his solicitors on 20 April 2023.[46] She obtained a history that the plaintiff resided with his wife on a 15 acre hobby farm. The plaintiff was able to perform most activities inside and outside, and they were shared duties with his wife. Dr Horsley recorded that the plaintiff self-paces and self-manages what he is required to do, and has modified activities at home in order to accommodate his left thumb disability. He was unable to cut wood and purchased a wood splitter. When putting in fencing posts, he obtains assistance from his son. He had also purchased a tractor to reduce the amount of manual handling required, and was employed with Sovereign Concrete on a full-time basis.
[46]Exhibit P10, PCB 62-68.
59Dr Horsley reported that the plaintiff uses cannabis on a daily basis to relax and for sleep.
60Dr Horsley commented that the plaintiff became quite emotional when talking about his inability to pursue harness racing and training. He said that he stopped training horses for harness racing about four years prior, secondary to his left thumb injury.
61Dr Horsley wrote that the plaintiff was unable to apply pressure on the thumb, and that he was encountering great difficulty in cold weather. She said that the plaintiff previously had six horses, four of which he had been training, but this had been reduced to two retired horses. He told Dr Horsley that he was able to feed the horses and to look after them. He described his emotional attachment to his horses, and he expressed considerable frustration about his present situation.
62Dr Horsley recited the plaintiff’s account of ongoing and residual disability, but that over the years he had accommodated the same, with modifications made both at home and at work.
63The plaintiff reported that he self manages pain, rarely sees his general practitioner, and has no home exercise program. He had not consulted a psychologist, or a pain specialist. He had not had hand therapy since 2012. Dr Horsley noted that the plaintiff had not been reviewed by Mr Csongvay, and there had been no other specialist involvement, or radiology taken since 2012.
64The plaintiff told Dr Horsley that he can experience acute sharp, shock-like pain at the base of the thumb, on the flexor surface, if he grabs something or pressure is applied to that area such as when turning a tap, or opening a jar, or using equipment at work, or when engaged in any activity where there is pressure applied to the thenar eminence. He said that the pain on such occasions is sharp and lasts for a few seconds. He described it as a severe pain measuring eight out of ten, but that it settles when he releases his thumb. He said this can occur at work at least once a week, despite modifications he has adopted and the caution he exercises.
65The plaintiff also described a “baseline ache” in the same area during the winter months with pain varying from three out of ten, up to nine out of ten and that “the ache” can last for about ten minutes, until he is able to get his hand warm. He said he always wears gloves, or he adducts his thumb under his fingers to keep it warm, or puts his hand between his thighs if he is seated, to keep his hand warm. He said that when picking up a kettle he extends his thumb, so that only the fingers of his left-hand curl around the kettle handle.
66Dr Horsley recorded that the plaintiff is right hand dominant, but there is reduced grip strength on the left hand.
67On examination of the left thumb, Dr Horsley recorded:
no obvious deformity. There was no evidence of complex regional pain syndrome. There was no sweatiness, erythema or swelling. The thenar eminence on the left did appear however, a little more bulky than on the right, suggestive that there may be some low-grade swelling. There was no specific tenderness on palpation at the base of the thumb, however he stated that if I pressed with any firmness, he would experience sharp discomfort. He regularly experiences a sensation of tingling down the palmar aspect of the thumb.[47]
[47]Exhibit P10, PCB 66.
68Dr Horsley found a reduced range of motion and reduction in power.
69In summary, Dr Horsley reported that the plaintiff had sustained a significant laceration to his left non-dominant thumb for which he required surgical management under Mr Csongvay. She said that although the plaintiff presented with a residual disability, he had accommodated the same by modifying his practices, both at home and at work. He had very little time off work. He expressed considerable frustration and emotional concern about the impact that there had been to his love of harness racing training.
70Dr Horsley considered that the following work restrictions were prudent:
· Avoidance of prolonged and repetitive grip with the left hand;
· Avoidance of forceful activities involving the left hand;
· Avoidance of tools with a vibratory component on the left side;
· Avoidance of lifting items greater than 12-15kgs, except on an occasional basis;
· Avoidance of lifting items up to 10-12kgs on a repetitive basis;
· Avoidance of the cold. Mr Hendy needs to keep his left hand warm to reduce aching, particularly over the summer (sic) months. He would be unsuitable to work in an outside environment over winter;
· Avoidance of repetitive fine manipulative tasks involving the thumb and left index finger.[48]
[48]Exhibit P10, PCB 67.
71Dr Horsley stated that the plaintiff was presently accommodating her suggested restrictions in his employment. Dr Horsley considered that the plaintiff’s condition had stabilised. She excluded significant deterioration of his condition in the foreseeable future.
Dr Ajay Reddy
72Dr Reddy is a general practitioner at the Ballarat Group Practice who provided a report to the plaintiff’s solicitors dated 7 August 2023.[49] He recorded that the plaintiff had attended on another GP at the clinic between March and August 2012, mainly for the provision of WorkCover certificates.
[49]Exhibit P11, PCB 73-76.
73He said that the plaintiff first consulted him for his left thumb injury on 17 July 2023. He told him about his injury in 2012, and the treatment he had received. The plaintiff told Dr Reddy that he had lost some mobility, and had ongoing tingling and numbness in his thumb. Dr Reddy confirmed a loss of mobility on examination. On review of the plaintiff’s clinical file, Dr Reddy thought that the plaintiff’s condition was stable, and he did not expect any significant improvement from his current state.
The defendant’s medical evidence
Dr Sachin Khullar
74Dr Khullar is a sports and medicine physician who provided a report dated 1 November 2021.[50] He was requested by the defendant insurer to assess the plaintiff’s left knee. The plaintiff described his knee injury to Dr Khullar, which he recounted had occurred while working with the Formex Group in a coil making job. He reported a spontaneous onset of pain, which increased gradually over time. He said that he had reported the pain to his supervisors and he saw Dr Reddy.
[50]Exhibit D1, DCB 3-8.
75Dr Khullar noted that the initial treatment for the plaintiff’s left knee symptoms included modified work, pain medication and physiotherapy, however, his symptoms did not improve. He was referred to an orthopaedic surgeon, and an MRI scan of his left knee showed a medial meniscus tear. On 4 February 2020, Mr Paul Plank performed an arthroscopic partial medial meniscectomy.
76After surgery, the plaintiff had some time off work, and undertook rehabilitation under the supervision of a physiotherapist. He returned to full-time work two to three months later.
77The plaintiff reported to Dr Khullar that he experiences ongoing symptoms in his left knee by way of, continuing pain on the anteromedial, that was present all the time, and varied in its severity. The plaintiff told Dr Khullar that the pain in his knee increases with heavy manual work and is occasionally associated with mild swelling. The plaintiff recounted feeling unstable on walking, and that he had noticed a clicking in the knee with movement, although he had not suffered any falls, or any knee locking episodes. He reported mild discomfort on bending and extending the knee and that operating the gears in a manual car increased his symptoms. Although he was working full time, the plaintiff told Dr Khullar that he exercised caution, and avoided kneeling and squatting.
78Regarding self-care and personal hygiene, the plaintiff said that he was managing well. He mentioned some restrictions in the activities of daily living, which Dr Khullar reported as:
- Physical activity: He struggles to play with grandkids. He used to train and ride horses but had to give up, he struggles to get out of the car and driving can be discomforting as mentioned before.
- He finds his sleep is affected at times due to knee pain
- Restrictions in participating in social activities, playing with his children, outdoor social activity with his family
- Travel: he struggles to walk fast, finds it difficult to use stairs.[51]
[51]Exhibit D1, DCB 6.
79Dr Khullar noted a past medical history of “Right Lateral Epicondylitis, GERD, Depression, Adult ADHD was diagnosed 4 years ago. Rotator cuff syndrome, Left thumb injury - tendon and neurovascular.”[52]
[52]Exhibit D1, DCB 6.
80Dr Khullar understood that the plaintiff was managing his symptoms with pain medication and topical ointments, together with activity modification, and that he had reconciled himself to the fact that knee pain can hurt him intermittently.
81Dr Khullar said the plaintiff was not undertaking regular physiotherapy, had not seen his orthopaedic surgeon since his surgery and post-operative follow up, and had not seen his GP for his left knee for over 12 months.
82Following clinical examination, Dr Khullar diagnosed the plaintiff with residual pain subsequent to the partial medial meniscectomy in the left knee, and likely related to patellofemoral joint and tibiofemoral joint overload, which he noted was common after a partial meniscectorny. He considered that injuries related to the plaintiff’s left knee had stabilised.
The plaintiff cross-examined
83Mr Stanley directed his cross-examination to the state of the plaintiff’s physical health, otherwise than from his left thumb injury. The purpose of the cross-examination was directed at establishing that the plaintiff had not proved, on the balance of probabilities, that his need to surrender the driving of harnesses was caused by his left thumb injury, but instead because of the effect of other conditions and injuries the plaintiff had sustained, and for which he had received far greater interventions and had attended on his treating doctor on a more regular basis, in comparison to attendances for the left thumb injury.
84The plaintiff told Mr Stanley that he might have first experienced some left shoulder pain in about 2016, and that he had undergone injections to his left shoulder over the previous three years. He thought that he might have mentioned his left shoulder pain to Mr Plank in 2019. He also believed that he might have had an injection into his right shoulder, and said “oh, every now and then I will get a sore right shoulder from just working.”[53]
[53]T9, L19-20.
85Mr Stanley referred the plaintiff to his affidavit evidence where he deposed to the wearing of a back brace for support when carrying out heavy work. The plaintiff said he will wear it for support if he has to.[54]
[54]T9, L24-26.
86The plaintiff said that in May 2023, he received an injection into his back at L5 for a pinched nerve, and for which he was prescribed Endone and Panadeine Forte.[55]
[55] T10, L3-5.
87The plaintiff said that he sustained his left knee injury at work in 2019. An arthroscopy of his left knee was performed by Mr Plank. He said that he continues to experience aching and some swelling in his left knee when he has been on his feet for too long.
88The plaintiff said that he had previously experienced pain in his right knee and occasional swelling, but this had resolved.[56]
[56]T11, L4-6.
89Mr Stanley questioned the plaintiff about the impairment claim he made for his left knee injury, and of his examination by Dr Khullar, to whom he was referred at the request of the insurer. Mr Stanley directed the plaintiff to Dr Khullar’s report. Dr Khullar mentioned that the plaintiff was experiencing ongoing symptoms in his left knee, but which the plaintiff described to Mr Stanley as “soreness.”[57] Dr Khullar also reported the plaintiff told him that the pain is present “all the time and varies in severity.”[58] The plaintiff agreed that this was true at the time of the examination. Dr Khullar also reported the plaintiff experiencing increased pain with the performance of heavy manual work, along with instability, clicking of the knee and some restrictions of daily living and personal care, all of which the plaintiff agreed were symptoms he was experiencing at that time.
[57]T12, L11.
[58]Exhibit D1, PCB 6.
90Mr Stanley put to the plaintiff Dr Khullar’s account that the restrictions to the left knee affected his ability to play with grandchildren, had caused him to surrender training and riding horses, caused him to struggle getting out of a car, and was a cause of discomfort when driving. The plaintiff said that he “can get in and out of the car with my left knee.”[59] He denied having intended to leave Dr Khullar with the impression that he had given up horse riding and training purely because of the effects on him of his left knee. He agreed with Mr Stanley, that his inability to run around with his grandchildren was due to the condition of his left knee.
[59]T13, L13-14.
91Mr Stanley suggested to the plaintiff that the decision to cease horse driving in about 2019/2020, coincided with his left knee injury, but the plaintiff said, his knee injury was not “the cause of me actually stopping my driving.”[60]
[60]T14, L2-3.
92The plaintiff agreed with Mr Stanley that following his left thumb injury, and for a number of years thereafter, he had continued with horse training and riding.[61]
[61]T15, L11-12.
93The plaintiff said that that in order to hold a harness race licence, he was required to pass an annual medical examination. He agreed that Dr Reddy was involved in performing a medical assessment of him to obtain a clearance to drive a harness. Mr Stanley directed the plaintiff to a clinical note by Dr Reddy dated 3 August 2018, that said “harness racing paperwork done and scanned… physical examination normal.”[62]
[62] Exhibit D2, DCB 25.
94As to the plaintiff’s evidence that he wears gloves every day,[63] Mr Stanley suggested to him that his current work is very heavy and involves constructing and making moulds for large structures and, therefore, the use of gloves is par for the course, something with which the plaintiff appeared to agree when he said, “m’mm h’mm.”[64]
[63]T16, L14.
[64]T16, L23.
Re-Examination
95On re-examination, the plaintiff addressed his ability to use his left thumb and cope with the activities of training and driving harness horses. He explained that he had difficulty pushing in buckles, and holding the reins with two hands as is required in executing the task. He said he had tried wrapping the reins around his wrist and had trouble juggling the different equipment.
96The plaintiff refuted the suggestion put by Mr Stanley, that it was a combination of his right or left shoulder, his lower back, and his left knee that had forced him out of harness racing, and surrendering his licence. The plaintiff explained that he had done a lot of heavy lifting, twisting and turning over the years, but these had not prevented the ability to pursue harness racing.
97The plaintiff said that he had been able to carry on with his thumb injury by putting up with the pain and wearing gloves to try and keep his hand warm.
Defendant’s submissions
98Mr Stanley submitted that the plaintiff’s left thumb injury, although not trivial, could not be described as at least very considerable, and so satisfy the statutory threshold.
99In light of the defendant not having challenged the veracity of the plaintiff’s account of the pain and restrictions attributable to his left thumb injury affecting his activities of daily life domestically, and around the hobby farm, I asked Mr Stanley what the defendant sought to make of the plaintiff’s other health conditions to which so much of the cross-examination was directed. In particular, I inquired whether the purpose of the same was restricted to a submission that these other conditions account for the loss of the plaintiff’s ability to pursue harness driving, given that they had not been suggested as relevant to the domestic and farm related consequences on which the plaintiff relies as consequential to the thumb injury. Mr Stanley addressed the question in the following way:
It's a fall-back position. That is, on its face even if one was to accept a restriction on his riding abilities, when appropriately assessed the case even at the high point for the plaintiff doesn't meet the statutory threshold. But as a fall-back the defendant needs to petition Your Honour that if Your Honour was so impressed by a consequence of horse riding to the plaintiff's life, as elevating beyond and into the serious injury sphere, the defendant would urge great caution upon the finding by reason of the significant evidence which points towards that hobby being abandoned by reason of other ailments.[65]
[65]T26, L9-20.
100In summary, the defendant’s submission is that the plaintiff’s other health conditions, such as his back, shoulders and his knee, affected his driving or training ability. Mr Stanley referred to Dr Horsley, who said that as a result of the plaintiff’s loss of the deft ability to use his thumb, and the implications across his hand, he encounters difficulties in a range of everyday activities that involve grip. However, Mr Stanley argued that if such matters beyond harness racing are as a direct consequence of the work injury to the left thumb, then they come to be assessed in accordance with the decision in TTB SMS Pty Ltd v Reading,[66] and the injury does not satisfy the requisite standard.
[66] [2020] VSCA 203.
101Mr Stanley submitted that even if it be the case, that the loss of harness racing is caused by the thumb injury, it is not significant, and in any event, the plaintiff in all probability would have been compelled to surrender it because of the implications occasioned from the other injuries.
102Mr Stanley referred to the report by Dr Reddy dated 7 August 2023,[67] whom he submitted would be the most appropriate person to identify if the plaintiff’s left thumb and hand injury had been the cause of his inability to ride or pursue harness racing, but that he had not done so.
[67] Exhibit P11, PCB 73-76.
103Mr Stanley submitted that the timing of events is such, that I ought to be satisfied that the plaintiff stopped training and riding horses because of his left knee, and such a finding would accord with the report by Dr Khullar, who examined the plaintiff in regard to his left knee injury.[68]
[68] Exhibit D1, DCB 3-8.
104Mr Stanley also threw into the mix as contributors, if not causes, why the plaintiff stopped horse riding and training, his right knee, his shoulders and his back.
105Mr Stanley submitted that all of the evidence ought reasonably to lead to a conclusion that it is not the left thumb and hand that has resulted in the plaintiff’s loss of ability to ride, but other conditions.
106Furthermore, Mr Stanley submitted that a comparison of the plaintiff before and after the injury is telling. He pointed to an absence of treatment for any ongoing effects of the left thumb injury, a lack of any effect on cognitive functioning, a lack of prescribed medication and very low level use of over the counter pain relief.
107Mr Stanley contended that the plaintiff maintains the ability to continue heavy physical work, and I should be satisfied, the use of gloves is “par for the course” for workers in such an environment, but that if there is also a need for warmth by their use, that this should be assessed as a minor consequence.
108Regarding the clinical notes, Mr Stanley submitted that the plaintiff acknowledged that when over the last three years, he had experienced pain in the left knee, right knee, back, or the shoulders, he had seen his general practitioner.[69]
[69] T30, L18-20.
Plaintiff’s submissions
109Mr Ingram sought to answer that part of the defendant’s submission that the loss of the plaintiff’s ability to ride a horse in harness is due to other health conditions, by reliance on the plaintiff’s denial that this was the case, and by concentrating instead on the plaintiff’s evidence that he surrendered the pursuit, because of the consequences of his left thumb.
110Mr Ingram argued that the plaintiff’s evidence was explicit, that it was the loss of his recreational sporting interest in harness racing, and of training horses that was very significant to him. The extent of his investment in his passion was evidenced by the construction of the training track on his property, as well as his evidence that he could not control the horses under his charge, because of the diminished function of his left hand in consequence of his thumb injury.
111Mr Ingram submitted that in the event the plaintiff’s evidence is accepted of suffering considerable pain on a constant basis, despite attempts to alleviate the same through the wearing of gloves, and adjustments at his work, then I should assess the consequences as serious.
112Mr Ingram submitted that the plaintiff’s evidence should be accepted and he should be assessed as a witness of truth. He relied on what he submitted were answers given by the plaintiff which might be regarded as contrary to his own interests and was indicative of frankness.
113In addressing evidence supportive of the claim, Mr Ingram referred to the plaintiff’s affidavit that he experiences a “significantly reduced range of movement in the joints on it and I have far less grip strength in it. I am not as good with finer movements involving my left thumb. The left thumb is sore when knock it or if I use it too much. On the inside of my left thumb I frequently get a tingling and numbness sensation.”[70]Mr Ingram submitted that the plaintiff’s account is supported by the evidence of Mr Stapleton, who verified the physiological basis for the plaintiff’s sworn account.
[70]Exhibit P4, PCB 21, paragraph 13.
114Mr Ingram submitted that the plaintiff’s evidence includes often waking at night with an ache, and a numbness like sensation in the left thumb, and with the pain being much worse in cooler weather, and him requiring a glove for protection and to keep the hand warm. In addition, he is far less able to work on the farm than previously. For example, he used to chop his own firewood, but has needed to purchase a wood splitter, and when heavier work and fencing is required, then he is required to call in aid from his son to execute the required tasks, because his strength and dexterity in his left thumb is lacking.
115Mr Ingram stressed the importance of the loss of training and driving horses and he referred to the plaintiff’s affidavit evidence that he had to “give up my hobby of training and driving pacing horses. About 12 years ago, I obtained my training and driver’s licence for this. About three years before that I had begun helping a trainer and also acquired horses of my own. When I obtained my driver’s licence I began driving my horses in races including at Melton and Kilmore and at other country tracks. I had a few wins and numerous placings. I loved training and driving my horses. It was my passion outside of work.”[71]
[71]Exhibit P4, PCB 22.
116Mr Ingram highlighted the plaintiff’s evidence that he spent $27,000 on building the race and training track on the farm.
117Mr Ingram submitted that the plaintiff had sworn to, and was not challenged, that his base level of pain is three out of ten, but in colder periods can reach to ten out of ten. Mr Ingram argued that this is an indicia of the manifestation of pain that is peculiar to the plaintiff, but also when assessed objectively constitutes significant pain. Mr Ingram submitted that I should find that the plaintiff is suffering from a considerable impairment.
Analysis and findings
118In Haden Engineering Pty Ltd v McKinnon,[72] Maxwell P set out various principles to which recourse is invariably had in serious injury applications in an effort to assist in evaluating the “pain and suffering consequences” in a given set of circumstances. In particular, at paragraphs [14]-[15] under the heading “The disabling effect of pain”, the learned President said:
As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost. But the significance of what has been lost… may be informed, to an extent, by what is retained.’[73]
As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account.[74] What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her].[75]
[72] (2010) 31 VR 1 (‘Haden’).
[73] Reference was made to Dwyer [2008] VSCA 260, [27].
[74] Reference was made to Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [47].
[75]Reference was again made to Dwyer [2008] VSCA 260, [25].
119Additionally, in Haden, Maxwell P, identified a non-exhaustive and non-prescriptive list of ordinary activities which may be affected by a “very considerable” injury, and they include:
·sleep;
·mobility;
·cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
·capacity for self-care and self-management;
·performance of household and family duties;
·recreational activities;
·social activities;
·sexual life; and
·enjoyment of life.[76]
[76] Haden (2010) 31 VR 1, 5-6.
120The question of the proper identification of the cause of the plaintiff’s inability to continue his involvement with harness racing in its various guises, is plainly enough a matter that has been joined between the plaintiff and defendant. As to restrictions and difficulties the plaintiff testified to, and relied on as a result of his thumb injury extending beyond the loss of harness racing, his evidence of them and their veracity was not challenged by the defendant, but rather it contended, that even if the plaintiff’s account is accepted, they do not satisfy the test for seriousness. Indeed, the defendant’s submissions included that if I am satisfied by the evidence, that the loss of harness racing pursuits should be placed at the feet of the complications and pain resulting from the left thumb injury, then when it is assessed as part of the overall evidence, the outcome should be no different, and the application ought to be refused.
121In regard to the plaintiff’s pain, I have considered the extent to which the pain experienced from his thumb, limits his physical functioning and interferes with his enjoyment of life. If this be a proper starting point, then on its face, the plaintiff’s pain and restrictions, and interferences from the subject injury continue to limit his enjoyment of life. Therefore, it seems to me, that the question is refined to assessing the extent of these effects, and determining if the same, are at least, very considerable.
122I accept the plaintiff’s evidence that his base level of pain in the winter may be about three out of ten, but can rise considerably higher when it is very cold and he has not warmed up his left hand.
123In judging the severity of the plaintiff’s pain, it is instructive that he said the extent of pain medication he takes is Panadol Plus, which he purchases from the supermarket and his consumption is only about four tablets twice a week. By any measure this is a very limited recourse to pain relief.
124The plaintiff’s interest other than harness racing has been his hobby farm. I accept his evidence that he experiences restrictions in what he can do on the farm because of his left thumb injury, such as an inability to use an axe or wood splitter to chop wood as he once did. I accept that the heavier task of putting in fence posts alone, is not something he can manage, and he depends on his son to come out to help him with.
125The plaintiff said that he is restricted in playing with his grandchildren because of the left thumb injury.
126The accounts of the plaintiff’s restrictions that I have just recited, accord, for example, with the opinion expressed by Dr Stapleton on 30 March 2023, who reported that the plaintiff had some, but not convincing flexor tendon movement.[77] He identified a reduced range of flexion of the thumb at the metacarpophalangeal joint. He said the plaintiff was very awkward with his left hand, and the power of his grip was diminished, such that he cannot hold items like an axe. Dr Stapleton recorded that despite the plaintiff having purchased a mechanical wood splitter, nonetheless, he enjoys working on his hobby farm. Dr Stapleton also recorded that the plaintiff told him about his hobby of speedway car racing, although this was not mentioned in the plaintiff’s affidavits, and he was not cross-examined about the reference to it.
[77]Flexor tendons are cord-like structures running from the forearm across the wrist and palm and into the fingers, allowing you to bend your fingers and thumb to grasp an object or make a fist. Injuries to the flexor tendons can cause a loss of the ability to bend one or more of the joints in your hand.
127As to the extent of interference to the plaintiff’s enjoyment of his hobby farm, I note that Dr Horsley, following examination of the plaintiff in April 2023, reported that the farm comprises a 15 acre property, on which he was able to perform most activities inside and outside, although they were shared with his wife. The plaintiff self-paces and self-manages and has modified his activities at home, in order to accommodate his left thumb disability. As well as purchasing a wood splitter and calling on his son for assistance in putting in fencing posts, the plaintiff had purchased a tractor to reduce the amount of manual handling required.[78]
[78] Exhibit P10, PCB 63.
128The plaintiff testified to interrupted sleep and of being disturbed about two, or three nights a week, due to pain in his left thumb. As against this account, Dr Horsley reported that the plaintiff uses “cannabis daily to relax and for sleep.”[79] I am satisfied that to the extent there is sleep disturbance affecting the plaintiff because of his left thumb, the evidence is not that it has an adverse effect on him in attending to his employment, or in performing other activities of daily life due to, for example, a lack of focus or concentration due to tiredness or exhaustion. As well, the plaintiff also told Dr Khullar that he finds his sleep is affected at times due to knee pain.[80]
[79] Exhibit P10, PCB 63.
[80] Exhibit D1, DCB 6.
129The plaintiff rarely sees his GP for his thumb. Given the settled injury, that is understandable. He has not seen a pain specialist and has not had hand therapy since 2012. I accept that there is no suggestion there exist specialist treatments that would improve its function or would reduce its sensitivity and resulting pain if pursued by the plaintiff.
130I accept the plaintiff’s account recorded by Dr Horsley, that he can experience acute sharp, shock-like pain at the base of the thumb, on the flexor surface, if he grabs something or pressure is applied to that area such as, for example, when he turns a tap, or opens a jar, or uses equipment at work, or is engaged in any activity where there is pressure applied to the thenar eminence. He said that the pain on such occasions is sharp and lasts for a few seconds. He said it was severe but it settles when he releases his thumb. He said that this can occur at work at least once a week, despite his modifications and caution. In short, in going about the everyday minutiae of life, the plaintiff’s thumb causes pain.
131I have referred to the occasion of the plaintiff’s ache during the winter months and when the weather is cold. He wears gloves, or he adducts his thumb under his fingers to keep it warm, or puts his hand between his thighs, if he is seated, to keep his hand warm. When picking up a kettle he extends his thumb, so that only the fingers of his left-hand curl around the kettle handle.
132I accept that the plaintiff can experience difficulties when gripping things using his left hand. I accept that at work, if he knocks his left thumb, or he picks something up awkwardly, he experiences a sharp shooting pain in his left hand and it can last for about ten seconds. Although the plaintiff said this was a frequent occurrence, I am inclined to think it is less so, and this is because of the plaintiff’s evidence that he wears gloves at work and he has managed to accommodate his disability, and he has applied modifications at work, such as Dr Horsley described, and also at work he tries to avoid heavy lifting requiring the use of his left hand, and uses a forklift to do as much lifting as he can, or obtains assistance from a co-worker.
133Although the plaintiff’s restrictions in running around with his grandchildren is because of the effects on him of his knee, I nonetheless accept that the thumb would inhibit some capacity for some forms of play with them as well.
134The plaintiff suffered his left thumb injury a long time ago. Surgery followed. After a period of recovery, the plaintiff returned to his employment, and has since then, very commendably, remained in employment at various employers including with his current employer Sovereign Concrete for whom he works as a welder on a full-time basis. Of course, whilst a return to work and a capacity for work is not a determinative factor against the grant of serious injury certificate for pain and suffering, it is a relevant consideration. I accept the plaintiff’s evidence that he has learned to live with the effects on him of his thumb and more generally, his left hand, and has applied his own measures in exercising caution as much as is possible in his work. I note Dr Horsley said that the plaintiff had already very considerably adopted the restrictions she identified and recommended as appropriate in her report. The plaintiff’s capacity for permanent employment is indicative of both a resilience on his part, but I am also satisfied, a resilience aided by the fact that the ongoing effect of his injury to the thumb in the discharge of his employment is both limited and manageable.
Harness racing and training
135There is a genuine dispute about the cause of the plaintiff ultimately surrendering his evident love and pursuit of harness racing, and of training horses. The explanation that it came to be because of the plaintiff’s knee, finds expression in the medical reporting by Dr Khullar, to whom the plaintiff was sent by the defendant insurer for examination following the lodgement of his impairment claim for his knee. Dr Khullar was not examining the plaintiff’s thumb or hand. In his report addressing the left knee and the plaintiff’s present concerns about its effects on him, Dr Khullar wrote:
Present Concerns
Mr Hendy mentioned having ongoing symptoms in his left knee. He continues to have pain in his left knee on the anteromedial present. He reported that the pain is present all the time and varies in severity. The pain increases with heavy manual work and is associated occasionally with mild swelling in his knee. He feels unstable on walking and has noticed clicking in the knee with movement. He however has never had any falls. He has not had any locking episodes in his knee but reported mild discomfort on bending and extending the knee. The use of a manual car and operating the gears increase his symptoms. Although he is working full time, he observes caution in avoiding kneeling and squatting.
He mentioned some restrictions in activities of daily living and personal care which are as follows (assessed as per Table on Pg 317- Guides):
- Self-care and Personal hygiene: is managing well
- Physical activity: He struggles to play with grandkids. He used to train and ride horses but had to give up, he struggles to get out of the car and driving can be discomforting as mentioned before.
- he finds his sleep is affected at times due to knee pain.
- Restrictions in participating in social activities, playing with his children, outdoor social activity with his family.
-Travel: he struggles to walk fast, finds it difficult to use stairs.[81]
[81] Exhibit D1, DCB 6.
136I have considered the plaintiff’s evidence that he had not intended to convey to Dr Khullar the impression that he gave up horse riding and training purely because of his left knee. However, the plaintiff’s cessation of his involvement in that pursuit in 2019/2020, coincided with the knee injury. Despite the plaintiff’s evidence that his knee injury was not “the cause of me actually stopping my driving,”[82] it is very highly relevant that although the plaintiff suffered the left thumb injury in 2012, he felt able to continue his interest and participation in racing and training horses for about the next seven or eight years, and there is no evidence over that time of inhibition in its pursuit, and certainly no evidence that the ongoing effects of the thumb injury prevented him from it. As late as August 2018, and prior to the onset of the knee injury, as part of the requirement for the plaintiff to hold a harness racing licence, Dr Reddy certified that the plaintiff had completed a normal physical examination.[83] In disputing that the subsequent surrendering of his licence was due to other impairments, and not his thumb injury, the plaintiff said that he had carried on with his thumb injury over the years by putting up with the pain, and wearing gloves to keep his hand warm, but that eventually it became too much. I accept that the plaintiff adopted means to accommodate the effects of his thumb, but I am not satisfied that the thumb eventually became too much for him which is why he gave up his harness racing activities.
[82]T14, L2-3.
[83] Exhibit D2, DCB 25.
137Although the plaintiff has no burden to disprove that, for example, his knee injury was the cause of him ceasing his involvement in harness racing, he is required to establish on the balance of probabilities that the consequences on which he relies that includes the loss of this pursuit, has resulted from the effects on him of the compensable injury. I am not satisfied that the plaintiff has proved that the surrender of harness racing and training was because of the effects of the impairment to the left thumb. I am satisfied by the evidence, that as with his paid work, and a good deal of activities around his farm, and his day to day life, that the plaintiff was able to pursue his involvement with horses and this was the case for many years after the 2012 injury, whereas this proved not to be the case following the knee injury. I add that such of the evidence that the defendant adverted to as implicating pain due to the plaintiff’s shoulders and back as contributing to the loss of this pursuit, did not travel very far. The evidence was limited, and the shoulders appear to have responded well to injections and the plaintiff managed, as with his thumb, so too with his back, to continue his interest.
138When assessing what has been lost with has been retained, the plaintiff has fortunately retained a good deal. He is able to work full time. He is self-reliant in terms of his personal care requirements. He has no need for prescribed medication. Paracetamol and or ibuprofen is taken in very low quantities and on a limited number of days of a week. His sleep is affected by the left thumb occasionally, but it is also disturbed by left knee pain, but in any event, there is no reason to think that the extent of sleep disturbance affects other aspects of the plaintiff’s ability to go about his work, or attending to those activities that he still is able to pursue on the hobby farm and as he told Dr Horsley, he enjoys. I am not satisfied that the degree and frequency of the pain that is experienced in the thumb is a dominant feature of the plaintiff’s daily life. None of the doctors, for example, described the plaintiff’s level of pain as excruciating or unrelenting. Although his pain is persistent, it is relieved in the ordinary course, and usually in a very short period of time, and on occasion by small quantities of paracetamol and ibuprofen, when required.
139I have had regard to the following passage from the Court of Appeal in TTB SMS Pty Ltd v Reading,[84] that I consider to be apt:
Whilst these impairments are certainly not trivial, in our view, they cannot be fairly described as ‘at least very considerable.’ The evaluation required of the trial judge, and this Court, involves a comparison of the worker’s impairment not just with other impairments of the hand, but also with other types of physical impairment that may be suffered, including impairment of the brain, the spine and large joints such as the knee and shoulder. Those other physical impairments may involve constant pain, significant medical treatment and medication. They may involve sleep deprivation, or an inability or reduced ability to socialise or work.[85]
[84] [2020] VSCA 203.
[85] Ibid [31].
140Furthermore, in assessing whether the plaintiff’s impairment is “at least very considerable” weight must be given to the adverb “very.” As Callaway JA said in TAC v Dennis:[86]
Many [impairments][87]are considerable, in the sense that they are important or substantial, without being very considerable.[88]
[86] [1998] 1 VR 702.
[87] The claim related to a severe long term behavioural disturbance.
[88] TAC v Dennis [1998] 1 VR 702, 703.
141Section 325 restricts the availability of common law damages to workers’ whose impairments are of “very considerable” magnitude. After an examination and consideration of all the evidence, and when comparing the consequences of the plaintiff’s injury, to the range of possible consequences, and comparing what has been lost with what the plaintiff has retained, on balance, although the plaintiff’s thumb injury has had an important effect on his life, I am not satisfied that the consequences are more than significant or marked, or at least very considerable. I consider that the plaintiff has not satisfied the onus of showing that the pain and suffering consequences of his injury, have resulted in an impairment which is “fairly described as being more than significant or marked, and as being at the very least very considerable.”[89]
[89] Section 325(2)(c) of the Act.
142It is appropriate to say that had my finding been otherwise, and I had concluded that the plaintiff had proved that the loss of the pursuit of harness racing activities was due to his thumb injury, then my ultimate finding would not have been otherwise. Although the evidence identified the plaintiff’s financial and emotional involvement in the activity, and whilst I accept he derived considerable enjoyment from it, he still obtains pleasure from activities on his hobby farm as was recounted in evidence. I would not have been satisfied that this loss when considered with the occasions of pain, restrictions and modifications the plaintiff has adopted as a result of his thumb injury, when compared to what has been retained, would have satisfied the statutory test.
143For the reasons given the application is therefore refused.
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