Horsfield v Transport Accident Commission
[2023] VCC 1983
•9 November 2023
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-22-05342
| GARTH HORSFIELD | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 12 October 2023 | |
DATE OF JUDGMENT: | 9 November 2023 | |
CASE MAY BE CITED AS: | Horsfield v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1983 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the left upper arm (including the left wrist) – psychological injury – pain and suffering – loss of earning capacity – credibility
Legislation Cited: Transport Accident Act 1986 (Vic), s93(4)
Cases Cited: State of Victoria v Glover [1998] VSCA 93; Haden Engineering Pty Ltd v McKinnon (2012) 31 VR 1; Humphries and Anor v Poljak [1992] 2 VR 129; Tavares v Tavares (2003) 6 VR 577; Sabo v George Weston Foods [2009] VSCA 242
Judgment: The plaintiff is granted leave to bring a proceeding for damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Jurica with Ms K Karadimas | Saines Lucas |
| For the Defendant | Mr P A Scanlon KC with Mr S D Martin | Solicitor to the Transport Accident Commission |
Table of Contents
Introduction
Background and treatment
Subsequent employment
Witnesses and evidence
Issues and submissions
Plaintiff’s submissions
Defendant’s submissions
Legal principles
Credit
Compensable injury
Long-term
Impairment consequences
Pain and dysfunction
Medication and medical treatment
Work capacity and loss of enjoyment of work as a postman / manual handling
Music
Sleep
Art and ceramics
Activities of daily living
Sports and hobbies
Weight gain
Driving
Social life
Analysis
Conclusion
HER HONOUR:
Introduction
1On 3 June 2019, the plaintiff was injured during the course of his work as a postal delivery officer. He was hit by a taxi while riding his postal motorbike. He suffered an injury to his left wrist which he claims is a “serious injury” pursuant to paragraph (a) of the definition of “serious injury” in s93(17) of the Transport Accident Act (“the Act”).
2A foreshadowed claim pursuant to paragraph (c) of the definition of “serious injury” in s93(17) was not pursued.
3For the reasons that follow, I find the plaintiff has suffered a “serious injury” and I grant him leave to commence a proceeding claiming damages.
Background and treatment
4The plaintiff was born in June 1970 and is currently 53 years of age.
5He is single and lives alone.
6He completed Year 12 and commenced studying Visual Arts at Ballarat University. Partway through his second year, the plaintiff ceased studying and began working part time in various jobs. He also pursued his music and exhibited his visual art.
7He completed a New Enterprise Incentive Scheme (NEIS program), a government assistance program for new businesses.
8He worked as a full-time graphic designer for several years and was then unemployed at various times for a few years. He ran his own business – a live music venue – for about six years and did some vocational training including obtaining a heavy rigid truck licence, a motorbike licence and a forklift licence. He completed a short welding course.
9About three years ago, in February 2019, the plaintiff commenced working at Australia Post as a postal delivery officer. At the time of the accident, he was working around 30 hours per week in that role. His pay varied, but on average he was earning around $700 per week before tax.
10The plaintiff did not have any relevant past medical history.
11On 3 June 2019, the plaintiff was riding his motorbike as a postal delivery officer along Hertford Street, Sebastopol, when he was struck by a taxi. The taxi had turned right and hit the plaintiff. The force of impact threw the plaintiff over the bonnet and he landed in the middle of the road. He had immediate pain in his left wrist.
12The plaintiff was taken by ambulance to the Ballarat Base Hospital. An x-ray was taken of the plaintiff’s left wrist. A displaced, comminuted, articular surface fracture was noted involving the distal radius. There was also disruption of the distal radioulnar articulation. A displaced fracture was noted through the ulnar styloid process.
13The plaintiff’s wrist was placed in a splint. He was prescribed paracetamol and Endone and he was referred to Mr John Dillon, orthopaedic surgeon. Mr Dillon tried to re-set the plaintiff’s wrist but was unsuccessful. Ultimately, the plaintiff required surgery.
14On 5 June 2019, Mr Dillon operated on the plaintiff’s left wrist. The fracture of the plaintiff’s left distal radius was exposed, and a long DVR plate applied and fixed with cortical screws.
15Following surgery, the plaintiff saw his general practitioner, Dr Badrika Palliyaguruge at the Ballarat Family Medical Centre.
16The plaintiff had follow-up reviews with Mr Dillon, and a subsequent x-ray was taken of his left wrist on 16 July 2019. The findings were of a distal radius fracture fixation with plate and screws with satisfactory alignment and maintained hardware. There was a mildly displaced fracture at the ulnar styloid base and a moderate degree of STT and a mild degree of first carpometacarpal joint osteoarthritis.
17The plaintiff subsequently saw a hand therapist at Newington Physio.
18On 27 August 2019, the plaintiff had a further x-ray of his left wrist which discovered the distal left radial fracture fixation with plate and screws appeared to be in a satisfactory position. There was no evidence of hardware failure. There was ongoing healing at the fracture site with development of sclerosis. There was a moderate degree of STT joint osteoarthritis and there was still a displaced fracture of the ulnar styloid base.
19The plaintiff was reviewed by Mr Dillon again on 27 August 2019. Mr Dillon noted he was making “good functional recovery following his surgery. His hand and wrist were continuing to improve.” Mr Dillon discharged him to the care of his hand therapist.
20The plaintiff saw Dr Palliyaguruge again on 7 November 2019. From then until 6 December 2022, there were no further attendances by the plaintiff on Dr Palliyaguruge.
21On 6 December 2022, the plaintiff sought a further referral from Dr Palliyaguruge to Mr Dillon.
Subsequent employment
22Following the accident, the plaintiff had a couple of weeks off work. He returned to work on light duties on reduced hours for about two months and then left Australia Post.
23The plaintiff subsequently did intermittent odd jobs to get by, including some sound and lighting jobs, looking after his mother’s Airbnb property, and working in a retail gift shop. He currently works as a self-employed artist and at Child and Family Services in an office role doing venue-support work.
Witnesses and evidence
24At the hearing, the plaintiff gave evidence and was cross-examined.
25The plaintiff tendered extracts from the Second Further Amended Plaintiff’s Court Book including five affidavits affirmed by him on 24 May 2021, 7 June 2023, 31 August 2023, 27 September 2023 and 4 October 2023; an affidavit from his mother, Yvonne Horsfield, affirmed 31 August 2023; an affidavit of Sophie Livitsanis affirmed 31 August 2023; various radiology reports; various medical material from his treating health practitioners including his general practitioner Dr Palliyaguruge and orthopaedic surgeon, Mr John Dillon; medico-legal reports of Mr Ash Moaveni, orthopaedic surgeon; various other documents including photographs; his Australia Post Contract; Summary of Plaintiff’s Tax Returns; clinical notes; a TAC Report of Mr John Crock (plastic and reconstructive surgeon); and a document titled “Australia Post – Plaintiff’s Normal Weekly Earnings and Hours”.
26The defendant tendered extracts of the Defendant’s Court Book, including a report of Mr Ash Chehata, shoulder, elbow and wrist surgeon, dated 20 June 2023; extracts of the clinical records of the Ballarat Family Medical Centre; screenshots taken from the plaintiff’s Facebook profile, a screenshot taken from a screenshot taken from a screenshot taken from a report of Dr Lester Walton dated 23 June 2021; video surveillance film of October and November 2022 which was played to the Court, and YouTube material of three songs produced on 23 May 2020 which were also played to the court.
27In addition to the tendered documents, the defendant admitted that in 2022, there was 25.5 hours of surveillance producing 45.24 minutes of footage. In 2023, there was 17.45 hours of surveillance producing 30.08 minutes of footage. All surveillance material had been served on the plaintiff.
Issues and submissions
Plaintiff’s submissions
28It was submitted on behalf of the plaintiff that he had suffered a displaced comminuted articular surface fracture involving the left distal radius, disruption of the distal radioulnar articulation and a displaced fracture through the ulnar styloid process which were permanent.
29It was further submitted the plaintiff was credible and nothing in the surveillance footage, his Facebook profile, various internet screenshots, or YouTube videos adversely impacted his credit. He was a reliable witness who made numerous concessions during cross-examination, and he should be believed.
30The plaintiff claimed to suffer from the following consequences:
(a) discomfort and pain in the left wrist all the time, particularly with repeated movements and gripping;
(b) sharp pain in the left hand when applying force;
(c) loss of strength in his left hand, particularly with twisting, pushing and pulling;
(d) slightly reduced range of movement of his left wrist;
(e) an inability to return to his pre-injury employment, which he enjoyed, or to engage in a manual-handling role, even if he had not sustained a substantial loss of income similar to that demonstrated in State of Victoria v Glover;[1]
(f) limitations on his ability to type;
(g) restrictions in his activities of daily living including unscrewing jars, holding heavy pans, twisting wrist motions, lifting weights and manipulating heavy objects;
(h) limitations on his sporting activities including his ability to do push-ups or weight exercises;
(i) loss of enjoyment of life from the loss of his ability and lifelong love of playing and writing music, including an inability to rehearse with his band members and to perform extended activities like playing the piano or playing woodwind instruments; and
(j) loss of ability to create ceramic pottery.
[1][1998] VSCA 93 (“Glover”)
31It was further submitted the plaintiff was stoic. He has not wanted to take prescription or other medication. He has not complained. He has got on with things. To his credit he has found work he is able to do.
32When the claimed consequences are compared with the range of possible injuries and impairments and losses of body functions, the plaintiff submitted the Court should have little hesitation in finding the plaintiff’s impairment consequences reach the required threshold and are at least “very considerable” and more than “significant” or “marked”. He has suffered a “serious injury”.
Defendant’s submissions
33The defendant accepted the plaintiff had suffered a compensable injury which was permanent. Namely, a displaced comminuted articular surface fracture involving the left distal radius, disruption of the distal radioulnar articulation and a displaced fracture of the ulnar styloid process.
34The defendant submitted the surgery performed had achieved a good result and good anatomical alignment. It had left the plaintiff with good function. He had experienced an improvement in his range of motion. This was reflected by:
(a) the observation by the orthopaedic surgeon, Mr Dillon, in his report dated 9 December 2019, that when he reviewed the plaintiff on 27 August 2019, the plaintiff “was making a good functional recovery following his surgery. The plaintiff’s hand and wrist were continuing to improve” and he had been discharged from his care;
(b) the lack of consultations by the plaintiff with his general practitioner, Dr Palliyaguruge, from 7 November 2019 until 6 December 2022;
(c) the cessation by the plaintiff of hand therapy sessions in late 2019 and the lack of an opinion from the plaintiff’s hand therapist;
(d) the fact that when the plaintiff was seen by Mr Dillon on 5 May 2023, Mr Dillon reported that the plaintiff had informed him:
“He had minor discomfort but was managing for the most part. His symptoms were not significantly impacting on his quality of life. He reported that he had some discomfort in certain movements of his wrist when he lifted heavy levels. Clinical examination revealed that his wrist examined well.”[2]
[2]Second Further Amended Plaintiff’s Court Book (“2FAPCB”) 75
(e) the fact that the plaintiff’s general practitioner, Dr Palliyaguruge, in the medical report dated 21 July 2023, considered the plaintiff only had “issues with mild discomfort and slightly reduced range of movements of the left wrist”;[3]
(f) the brace support worn by the plaintiff in court was not worn on days when he was at work, and was a presentation intended to be consistent with the plaintiff’s evidence in re-examination, as opposed to being truly necessary.
[3]2FAPCB 64
35The defendant also submitted other consequences to the plaintiff were not significant:
(a) The plaintiff does not have a claim for pecuniary loss. His affidavit material did not disclose all the financial aspects of the work he did at his mother’s Airbnb. The surveillance footage suggested the plaintiff was able to perform singing work. Further, he is currently earning more as an artist than he was at the time of the accident. Additionally, Mr Moaveni, in his report prepared after his consultation with the plaintiff on 20 July 2023, considered the plaintiff had “capacity to perform light and non-repetitive employment”.
(b) The plaintiff’s claim to have suffered a loss of enjoyment of his ability to play and write music was overstated. He was not playing as much music as he claimed he was prior to the accident. The history he gave Dr Walton when examined by him on 22 June 2021 was incorrect. He did not have a longstanding interest in participating as a semi-professional musician playing keyboard and woodwind instruments.[4] This was demonstrated by the fact the plaintiff earned no income from music in the three years prior to the accident. In any event, his evidence that he has no capacity to play and tends to favour his dominant hand, flies in the face of the video material where the plaintiff is observed being able to use both his hands. Further, there were discrepancies in the plaintiff’s evidence in re-examination compared to his evidence in cross-examination with respect to his involvement in the music world.
(c) The Court should be very slow to accept the plaintiff’s evidence in relation to the other consequences he claims to have suffered, because the differences in the evidence he gave under cross-examination, compared to his evidence in re-examination, adversely impacted his credit. The Court had observed through the video footage the plaintiff functioning in the absence of a brace and moving his hand. Further, as Mr Ash Chehata, shoulder, elbow and wrist surgeon, noted in his report dated 20 June 2023:
“It would certainly appear that his activities of daily living have not been affected and I would struggle to implicate an isolated wrist fracture that has been internally fixed with no complications or progressive degenerative change, avascular necrosis or nerve injury, to any major issues.”[5]
[4]2FAPCB 103
[5]DCB 21
Legal principles
36The definition of “serious injury” as set out in s93(17)(a) of the Act is, relevantly, as follows:
“‘serious injury’ means—
(a) serious long-term impairment or loss of a body function;
… .”
37The question of whether an injury is “serious” for the purpose of s93(17) is to be answered by consideration of whether the consequences of injury are serious to the particular applicant and, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as at least “very considerable” and more than “significant” or “marked”.[6]
[6]Humphries and Anor v Poljak [1992] 2 VR 129 (“Poljak”) at 140 (per Crockett and Southwell JJ)
38This requires a two-stage analysis. First, whether the nature and symptoms of the injury and consequences are subjectively “serious” for the plaintiff. And second, whether the injury and the consequences of the injury are objectively “serious”.
39The seriousness of the injury is to be assessed by considering the consequences relating to both pain and suffering and pecuniary disadvantage in a cumulative sense.[7]
[7]Poljak (ibid) at 40
Credit
40The impression I formed of the plaintiff when he gave his evidence was that he was an honest person. He gave evidence in a frank and truthful way.
41He was cross-examined at length both as to credit and in relation to his claimed consequences. Video surveillance footage was also played in court with an intention to impugn his credit.
42In relation to his credit, he was asked, first, about the brace he was wearing on his hand while giving evidence. It was suggested the brace was for show because he was not wearing it on his hand in the video surveillance footage. The plaintiff disagreed. He explained he did not own the brace when the surveillance film was taken. He only found it later on eBay. He said he wears it “sometimes” and “intermittently”, but he does not wear it when making music as “you don’t want to be wearing it in a performance”. In re-examination, he said he wears it because it is comfortable. But when he is performing, “that’s an occasion where you definitely wouldn’t wear something optional because, you know, um, you don’t want to be presenting yourself as injured in a performance that’s designed to – you know, you’re presenting a show.”[8]
[8]Transcript (“T”) 74, Lines (“L”) 27-31
43Having watched the plaintiff give evidence, and after considering the medical evidence, I do not think it was unreasonable for the plaintiff to wear a wrist brace from time to time. It was reasonable that he may not have worn it all the time. I accept, as he said, that he would not have worn it when performing.
44Next, he was asked about the use he made of his left hand. It was put to him that according to the surveillance footage he had used his left hand to lift and slide a card table into a car, carry an A-frame board and put artwork into a car. It was suggested that carrying these items would have been heavier than carrying/using a wind instrument. The plaintiff agreed that carrying things like artwork may have been heavier than carrying his wind instrument. He said the A-frame board was made of some kind of metal and corflute cardboard, but “it was just a light A-frame”. He agreed he had used his left hand. In re-examination, he explained he uses both hands to perform light duties and he normally favours his right hand and protects his left hand. The explanation was reasonable.
45The plaintiff was also cross-examined about whether he had lost any work capacity as an artist and as a musician. It was suggested to the plaintiff that the amount of artwork and music he had produced post-accident had been at least the same as before the accident. The plaintiff accepted this in relation to his artwork but disagreed in relation to his music.
46In relation to his artwork, he was shown surveillance footage taken at the Art Space Ballarat and it was suggested to him that he was still creating artworks and was still able to earn an income as an artist. The plaintiff agreed he was an artist and had displays when he could and when time permitted. He said he had always pursued art and agreed he was continuing to create artworks. Before the accident, he said he had been selling art irregularly. He accepted he had sold considerably more art since the accident and currently had ten or twelve paintings for sale. He also agreed that in the years 2020, 2021 and 2022, he had declared the income from art sales, and in the financial year ended June 2023, the total income from sales of his art was about $12,000.
47Although the plaintiff said in cross-examination that he sometimes used his left hand and said in his affidavit he now finds it harder to lift and move heavier boards and finds framing hard, I do not consider that evidence was inconsistent with the plaintiff having an injury to his left hand that can be considered “serious”. Nor do I consider the fact he now earns more income from his art to be at odds with his claimed impairment consequences. As he said, he sometimes uses his left hand, although he tries to use his right hand, if possible, to protect his left hand. Additionally, he paints with his right hand, not his left hand.
48Finally, the plaintiff was asked about his ability to undo a radiator cap as seen in the surveillance footage. In re-examination he said it was an easy thing to do to remove the radiator cap. On the one hand, this tends to support the view that the plaintiff has retained a level of functioning of his left wrist which enables him to grip and undo lids, perhaps suggesting his level of dysfunction is not as great as claimed. I did not take this view however, because the objective grip strength tests undertaken by Dr Crock, and Mr Moaveni referred to below, demonstrate that the plaintiff does have reduced grip strength.
49Having considered each of these matters, I did not consider they impugned the plaintiff’s credit. I also did not consider that the other matters dealt with in cross-examination, referred to in more detail below, affected the plaintiff’s credit.
Compensable injury
50Having considered all the evidence, I accept the plaintiff suffered a displaced comminuted articular surface fracture involving the left distal radius, disruption of the distal radioulnar articulation and a displaced fracture of the ulnar styloid process.
Long term
51The plaintiff was injured in 2019, which is now over four years ago. In that time, his wrist injury has not resolved.
52In the report of Dr Crock dated 28 July 2022, he noted a reduction in the plaintiff’s grip strength and considered the plaintiff was at risk of post-traumatic osteoarthritis in the long-term. He recommended the plaintiff’s volar plate be removed. He opined there was a significant likelihood the plaintiff’s symptomatology would improve once the metalware had been removed.
53The plaintiff subsequently saw Mr Dillon on 5 May 2023. Mr Dillon did not agree the metalware needed to be removed. Consequently, the plaintiff has had no further surgery. In the circumstances, given the plaintiff is acting in accordance with the recommendation of his treating surgeon, that is a reasonable response.
54Having considered the duration of the plaintiff’s injury and all the other evidence, I find that the plaintiff’s injury is long-term in the sense that it is far-reaching.[9]
[9]Tavares v Tavares (2003) 6 VR 577, at paragraph [71]
Impairment consequences
Pain and dysfunction
55In his first affidavit, the plaintiff said the worst pain he has is in his left wrist. He described it as intermittent pain. It is a general aching pain. If he twists the wrong way, he gets a sharp stabbing pain. The more he uses his left hand, the more pain he experiences. His left hand and wrist feel a lot weaker and constantly stiff. He takes longer to do things. His left hand feels clumsier and not as dexterous, especially when performing finer movements. He tries to avoid doing anything involving a twisting motion of his left wrist.
56In the plaintiff’s second affidavit, affirmed 7 June 2023, he said the pain he experienced occurred fairly often. He tries to put up with the pain as best he can.
57In his third affidavit, affirmed 31 August 2023, the plaintiff described how the discomfort in his left wrist is present almost all the time, even when he is not using it. When he does use his left wrist, he experiences a sharp pain, particularly when he puts weight on it or stress or force through it. Twisting his left hand the wrong way produces an aching and stabbing pain.
58His left wrist feels a lot weaker, and he has lost strength in his left hand and wrist. He now uses his right hand more to avoid experiencing left wrist pain.
59In her affidavit affirmed 31 August 2023, Ms Livitsanis, an art colleague of the plaintiff, confirmed he had told her his left wrist is often really painful and sore. He is not able to do things artistically or play musical instruments the way he would like to because of his wrist pain.
60Dr Palliyaguruge prepared a report for the plaintiff’s solicitors dated 12 August 2020. At that time the plaintiff was complaining of pain in his left wrist upon repeated movements and gripping.
61Mr Moaveni, in his report dated 28 July 2021, identified the plaintiff experienced pain in his wrist. There was a background of mild discomfort, but the pain in the plaintiff’s wrist increased with loading, twisting or any repetitive-type movement. If his wrist had been aggravated during the day, he felt achiness at night. He did not have any altered sensation or pins and needles in his fingers. Mr Moaveni also reported the plaintiff had stated the strength in his left wrist and forearm had been reduced. He had difficulty carrying, lifting, pushing, pulling and reaching with his left wrist. His ability to grasp and hold with his left hand and wrist had been reduced. The plaintiff said he had difficulty opening jars. He had learned to manage his pain and left wrist limitations by avoiding activities that caused him pain and discomfort in his wrist.
62In his report dated 9 December 2019, Mr Dillon noted that upon review on 16 July 2019, the plaintiff had limited dorsiflexion and some pain on ulnar deviation. When he was next reviewed on 27 August 2019, he was “making a good functional recovery following his surgery. His hand and wrist were continuing to improve.”[10] Mr Dillon discharged him to the care of his hand therapist.
[10]PCB 69
63On 10 August 2020, Mr Dillon provided a further medical report on behalf of the plaintiff. He opined the plaintiff had capacity to return to his work duties, but if he experienced difficulties he should be assessed by an occupational therapist. He also considered, given the plaintiff had been making a good functional recovery when last seen by him, that his capacity for sporting and social engagements would not have been significantly compromised. However, he noted, he had not seen the plaintiff since August 2019. He also identified that if the plaintiff continued to have symptoms in his wrist, further surgical intervention may be required.
64As already referred to, in the report of Dr Crock dated 28 July 2022, he noted that with the Jamar dynamometer set on 3 on three successive occasions, the plaintiff’s grip strength in the right hand was 50, 51 and 50 whereas in the left hand it was 20, 20 and 20. He considered the plaintiff was at risk of post-traumatic osteoarthritis in the long-term and recommended that his volar plate be removed. He opined there was a significant likelihood the plaintiff’s symptomatology would improve once the metalware had been removed. He also considered it would reduce the risk of tendon attrition damage in subsequent years.
65Following receipt of the opinion of Dr Crock, Mr Dillon reviewed the plaintiff again on 5 May 2023. He noted the internal fixation which had been undertaken in 2019. He also identified the plaintiff was experiencing “minor discomfort”[11] but was managing for the most part. His opinion was the plaintiff’s symptoms were not impacting his quality of life, although when the plaintiff lifted heavy loads, he experienced discomfort. Upon examination, he was not convinced that anything further needed to be done with respect to the plaintiff’s left wrist. He had discharged the plaintiff from his care.
[11]PCB 74
66In his undated second report prepared following a further examination of the plaintiff on 20 July 2023, Mr Moaveni recorded that the plaintiff has left wrist pain with repetitive movements and when using force. For instance, he experiences pain or discomfort when using a computer keyboard for less than 15 minutes. The pain is predominantly on the ulnar side of the left wrist. He occasionally experiences stabbing pain in the left thumb which worsens in certain positions. He denied experiencing pins and needles in the left hand. The plaintiff was also reported as having reduced flexion, extension, radial and ulnar deviation as well as a reduced grip strength measured on the right side upon three tests at 52/54/52 kilograms of force and at 34/32/34 kilograms of force on the left side.
67A subsequent report from Mr Dillon dated 6 July 2023, identified that the plaintiff had been referred to him again by Dr Palliyaguruge on 16 December 2022. The referral letter had stated the plaintiff was complaining of ongoing issues with mild discomfort and pain in his left wrist. Mr Dillon said he reviewed the plaintiff on 5 May 2023 at which time the plaintiff reported minor discomfort which he was managing for the most part. The plaintiff’s symptoms were noted not to be significantly impacting his quality of life. He had some discomfort in certain movements of his left wrist when he lifted heavy levels. Clinical examination of the left wrist showed that it examined well. Mr Dillon did not think any further intervention would benefit the plaintiff. Nor did he consider surgery to be necessary.
68The plaintiff was cross-examined about his initial treatment with Mr Dillon and the reason why he resumed seeing Mr Dillon in 2023. He agreed he had undergone internal fixation surgery with Mr Dillon in June 2019, and by 27 August 2019 he had been making a good functional recovery. He was then discharged to a hand therapist at Newington Physiotherapy, whom he saw on five occasions.
69The plaintiff was referred to his attendances on Dr Palliyaguruge at the Ballarat Family Medical Centre. It was put to him that between 7 November 2019 and 16 December 2022, there were no attendances by him on Dr Palliyaguruge. The plaintiff agreed that was the case. It was then suggested he went back to Dr Palliyaguruge on 16 December 2022 to get a referral to Mr Dillon to see whether or not he needed to have the internal fixation hardware removed as had been suggested by Dr Crock. It was put to him that the further consultations with Mr Dillon were driven or caused by the legal proceedings. The plaintiff’s response was that he needed to get a referral and he wanted to find out more information about his injury. He ultimately agreed though, that his desire to see Mr Dillon again was driven or caused by the anticipation of these proceedings.
70The plaintiff was then asked about the information contained in Mr Dillon’s report upon which Mr Dillon had formed the opinion that the plaintiff’s symptoms were not significantly impacting his quality of life and that he had discomfort in certain movements of the wrist when he lifted heavy weights. It was suggested the opinion had been formed based on information that had come from the plaintiff. Initially the plaintiff disagreed, but eventually he said presumably the information had come from him. He added that insofar as Mr Dillon’s report recorded that the plaintiff had minor discomfort but was managing for the most part, that was not how the plaintiff would have put things. He said, “I think it came from [Mr Dillon]”[12] and explained, that “[t]here was very little information and discussion on it, to be honest”.[13]
[12]T53, L24-27
[13]T53, L28-30
71Although the plaintiff did not see Mr Dillon for almost four years, I formed the view that in the intervening period the plaintiff continued to experience pain. First, the presence of ongoing pain was consistent with the identification by Mr Dillon in his report dated 9 December 2019 of an un-united fracture of the ulnar styloid, even after the plaintiff had undergone surgery. Second, Mr Moaveni, in his report dated 28 July 2021, identified the plaintiff experienced pain in his wrist. Third, Dr Crock did not doubt the truthfulness about the plaintiff’s complaint of pain and considered there was a basis upon which the plaintiff could be susceptible to the risk of post-traumatic osteoarthritis and tendon attrition damage in the long-term. Fourth, the plaintiff complained of ongoing pain. Fifth, Ms Livitsanis confirmed the plaintiff had complained of pain to her.
72Notwithstanding Mr Dillon saw no need for the plaintiff to undergo further surgery, I accept that the plaintiff experiences discomfort and pain with repetitive movements and when using force. There is pain to some degree present almost all the time, even when the plaintiff is not using his left wrist. The pain is predominantly on the ulnar side of the left wrist. It is experienced as a sharp, stabbing pain in the left thumb which worsens in certain positions, particularly when he puts weight on it or stress or force through it, and when performing loading, twisting or repetitive movements. The plaintiff’s left hand feels clumsier and not as dexterous, especially when performing finer movements. He has lost considerable grip strength as was demonstrated from the Jamar dynamometer tests undertaken by Dr Crock on 28 July 2022, and by Mr Moaveni on 20 July 2023.
Medication and medical treatment
73The plaintiff said in his first affidavit that he took Aspro Clear as needed for his left wrist pain. He also used rubber bands and did exercises. In his second affidavit he said he also took Voltaren as needed, but he had stopped using rubber bands. He also said he wore a compression bandage on his left wrist.
74The plaintiff agreed in cross-examination that he does not take prescription medication. It is something he actively avoids. He does not like taking strong painkillers, or any medication, because he had some unpleasant experiences growing up with people dying after taking prescription drugs. He said that had left a bad impression on him.
75In his undated second report prepared following an examination of the plaintiff on 20 July 2023, Mr Moaveni identified that the plaintiff was taking Voltaren approximately twice per week.
76I find that the plaintiff takes Aspro Clear and Voltaren as needed. He does not take prescription medication for his pain. However, I accept there are reasons for this, and it should not count against him when evaluating the consequences of his impairment and the level of pain he experiences.
Work capacity and loss of enjoyment of work as a postman/manual handling
77In his first affidavit the plaintiff described working with Australia Post at the time of the accident and having aspirations to work in the transport industry. He said that following his injury, he had a couple of weeks off work and then returned on light duties pushing a handcart and delivering mail for about two months, after which he left Australia Post. In his affidavit the plaintiff said this was because he “felt pressured to return to motorbike duties, and I wasn’t ready to, as I was just feeling too anxious to be riding the motorbike again.” He said the accident put an end to his work as a postie and his aspiration to work in the transport industry.
78Mr Moaveni, in his report dated 28 July 2021, identified that the plaintiff did not have confidence to return to work in any sort of manual position due to his ongoing left wrist symptoms. He had a work capacity, but Mr Moaveni considered the plaintiff would be restricted in performing manual tasks. Loading, lifting, twisting and repetitive action with his left wrist exacerbated his pain. It was envisaged he would require frequent breaks at work and would be limited in typing for prolonged periods.
79In his second affidavit, the plaintiff explained that he now works as a self-employed artist. He mostly paints with oils, acrylics and watercolours using his right hand. He also makes prints of his paintings. He finds it hard to lift and move heavier boards that he paints on due to his wrist pain. He also finds framing difficult.
80He also said he was doing some intermittent odd jobs to get by including some sound and lighting jobs, looking after his mother’s Airbnb property and working in a retail gift shop.
81In his third affidavit, the plaintiff explained he had started a part-time job with Child and Family Services doing venue and support work delivering training for staff at gaming venues for two 7.5-hour days per week. The plaintiff said there is no way he feels he could return to work as a postal delivery officer. He is scared of doing that type of work. He also said he would find it harder lifting and handling the heavier parcels with his left wrist pain and repeatedly using his left hand to deliver mail into letterboxes due to the necessity to reach, twist and to engage in awkward movements, which increased wrist pain.
82He identified he was still doing some intermittent odd jobs, including some sound and lighting jobs, looking after his mother’s Airbnb property and working in a retail gift shop.
83The plaintiff was cross-examined about the part-time work he had been doing for his mother’s Airbnb property. The plaintiff said he had been employed by his mother to clean the house, including the floors, the toilets, making the beds and maintaining the property. His business, Babushka, was paid by his mother from the money the guests paid. He declared the money received as income.
84In his fifth affidavit, the plaintiff said he is no longer working three hours a week in the retail gift shop, because, as part of that job, he had to lift and move four boxes each weighing about 10 kilograms. While moving the boxes he experienced wrist pain.
85The plaintiff continues to work at Child and Family Services in an office role doing venue support work for two 7.5-hour days per week. He is earning about $47 per hour before tax. On about 16 October 2023, he will begin working four 7.5-hour days a week. He is also still working as an artist.
86In Mr Moaveni’s second report prepared following an examination of the plaintiff on 20 July 2023, he opined that the plaintiff no longer has capacity to work in his pre-injury employment as a postal worker due to the requirement of repetitive lifting and manipulating of objects. The plaintiff’s typing has also been impacted, but he has capacity for other light and non-repetitive employment.
87At trial the plaintiff did not make a claim to have suffered pecuniary disadvantage. The amount he is now earning – $47 per hour – is more than he was earning at Australia Post on an hourly basis, prior to his injury.[14] The plaintiff, however, did rely on his inability to return to Australia Post or an alternate manual-handling job as a significant consequence of his injury. He said that although he now has another job which is rewarding, it is an office job, and he did not aspire to an office job. He said: “It’s just not very me. It’s, um – it’s – it’s nice and it’s, um – the people are nice, but I’m stuck in a – an office, most of the time, and it’s – it’s admin work, and I’m – a bit disappointing. I much prefer to be outdoors and – and, you know, being a postie, talking to people and having that kind of interaction.”[15] He said he “tried very hard to get specifically that job” and he was “really chuffed” when he got the job.[16] He loved being a postie and thought it was a “great” job.[17]
[14]At the time of his injury, an Australia Post - Plaintiff’s Normal Weekly Earnings and Hours document dated 29 June 2019 established that the plaintiff’s normal weekly hours were 30.68 and his normal weekly earnings were $775.49.
[15]T77, L3-8
[16]T76, L16-20
[17]T76, L21
88The plaintiff was cross-examined about the reasons, referred to in his first affidavit, for leaving his job at Australia Post following the accident. It was put to him that rather than leaving because he was afraid to ride his motorbike, the reason he left was because he only ever had a short-term, part-time contract. The plaintiff agreed he was working for Australia Post under a six-month contract at the time of his accident. However, he explained that this was typically how Australia Post engaged workers. He said, “You just keep signing another contract” and “I think it’s considered normal, at Australia Post, for people to just sign contracts, and re-sign them, and keep signing them, if you’re part time”. I consider the plaintiff’s response was reasonable. There was certainly nothing in that evidence which suggested the plaintiff’s explanation damaged his credit.
89Having considered the plaintiff’s evidence, I accept he enjoyed his job with Australia Post as a postman delivering mail on a motorbike and that he is unable to return to that role. Part of the reason for this is because he feels anxious riding a motorbike. However, I also find, as he said in his third affidavit, that he finds it harder now than before his accident, to lift and handle heavier parcels because of his left wrist pain. Repeatedly using his left hand to deliver mail into letterboxes is also harder, because that task involves reaching, twisting and some awkward movements that increase his wrist pain.
Music
90In his first affidavit the plaintiff discussed the impact his injury has had on his ability to play keyboard or piano with both hands as he had previously done. Before he was injured, he used to regularly practise on the keyboard or piano. He was in a band and the band did several performances a year. Now he says he finds it difficult to play the keyboard or the piano for more than a short time because of his left wrist pain. His wrist gets fatigued and aches badly after a few minutes. He takes a lot of breaks which he previously did not do and avoids doing live performances due to wrist pain.
91In his second affidavit, in addition to playing the keyboard, the plaintiff described having enjoyed, for thirty years, playing wind instruments including recorders, electronic woodwind instruments and renaissance instruments. Wind instruments were his “signature instrument” and before his accident he typically featured a woodwind instrument in performances. Since his accident, he finds it difficult to play wind instruments for more than a short period of time because of the repetitive nature of playing and the dexterity required.
92The plaintiff described having done a couple of recorded performances on YouTube following the accident, and not feeling as confident as he was before he was injured. He tries to avoid live performances and playing and practising the keyboard and wind instruments now because of his wrist pain. He also does not feel confident he could get through a gig.
93In his third affidavit the plaintiff described having been part of the band Immaculata from 1998. The band had toured through Australia a couple of times and had also toured with another band in Scotland and in England. The plaintiff explained the band had signed a distribution deal with a German label and had produced two official albums/CDs and several EPs. Since the accident though, he had not toured or released albums and he had not done much by way of streaming.
94In his fourth affidavit, the plaintiff clarified that the band’s touring around Australia had been between 2001 and 2006. The distribution deal occurred in about 2007 and the albums/CDs were released in around 2000 or 2001. The plaintiff identified that after the second album was produced, up to the date of the accident, he was also doing regular digital/streaming releases and live performances with the band. When he was running the Babushka Bar, the band also played there a few times. Since the accident the plaintiff said he has done a few live streaming performances, but otherwise he is not active musically.
95In his report dated 28 July 2021, Mr Moaveni noted the plaintiff’s difficulty using a keyboard.
96In Mr Moaveni’s second report following his examination of the plaintiff on 20 July 2023, he identified that the plaintiff reported considerable difficulty in his social and recreational activities, including playing his musical instruments; his main instrument being an EWI4000, an electronic clarinet. The plaintiff recounted to him how he has to support the instrument with both hands when playing and his left wrist often feels fatigued. He can only play for a short period of time.
97Ms Livitsanis confirmed she had been in the band Immaculata with the plaintiff for at least twenty years. The plaintiff played the piano/keyboard, renaissance woodwind instruments, the clarinet and a digital clarinet/flute type instrument. The band had produced three albums; had done tours up the east coast of Australia and to Western Australia; had travelled overseas to England and Germany; and had a recording contract in Germany. Before the plaintiff was injured the band had been practising at least a couple of times a week and had performed at least once every couple of months. Music was a big part of his life, and he loved it.
98After the accident, Ms Livitsanis recounted how the plaintiff’s ability to play music had greatly diminished. Although he might have played one or two things on YouTube the band no longer really played together. The plaintiff failed to play the keyboard, because his left hand was too sore. She had not seen the plaintiff pick up a woodwind instrument.
99The plaintiff was cross-examined with a view to demonstrating that any loss of enjoyment by him because of an inability to play music was overstated.
100First, he was asked about when he had last toured with the band. He agreed the band had not toured since about fourteen years prior to the accident. In re-examination, he explained that some time between 2001 and 2006, he toured with the band around Australia and signed a distribution deal with a German label. In about 2005, he toured with the band in Scotland and England.
101Second, it was suggested, in the three years prior to the accident – 2017, 2018 and 2019 – he was not playing music himself and he had not participated in the band with any regularity at all. The plaintiff agreed he had not been playing much and said he played with the band “as regularly as I was able to while running a business”.[18] In re-examination, he explained that in the three years before the accident he practised woodwind, keyboard and sang at home. He also rehearsed and made various home recordings with the band.
[18]T38, L26 – T39, L1
102Third, he was also asked about what income the band had earned in the three years prior to the accident. The plaintiff’s evidence was the band had performed live and had received some income. However, when pressed about this, he said he did not “exactly” have an income from his involvement in the band. He said the money was often “cash-in-hand”. They got paid from the door proceeds on any given night. He agreed he had not disclosed any personal income in his tax return. When asked whether he was happy to take cash and not pay tax, he responded: “Oh, if it was 20 bucks, yeah”. He explained that sometimes he would appear live for $20, and he accepted that was income from personal exertion which he chose not to declare.
103Fourth, he was also asked about the income he earned from the Babushka Bar and whether he had declared income from that business for the financial year 2017. He said he declared $2,968 income. He explained that when he was running the Babushka bar, the band also played there a few times.
104Finally, it was suggested to the plaintiff that his involvement with the band was greater after the accident than it had been before. The plaintiff disagreed.
105First, the plaintiff was cross-examined about the music he had uploaded to Soundcloud after his accident.[19] Soundcloud was a platform where independent music and demonstrations could be uploaded. It was not a streaming service like Spotify. The plaintiff explained that up to the date of the accident, he used Soundcloud mostly to store his demonstrations, songs or albums and he did not use it much anymore. It was suggested to the plaintiff there was activity by him on Soundcloud in the period 2015 to 2017, but after 2017 it was very quiet and activities from 2017 to 2019 were minimal.
[19]T39, L7-9
106The plaintiff was asked about the song “Demonchild”. He agreed that had been uploaded to Soundcloud, but said that had occurred five years previously, and had been recorded much earlier. The song “Falling” was also uploaded in 2017 as were songs called “All I have is Visnja”, and “We mourn our dead”. The song “O Presviyataya”, a Russian song, was uploaded in 2016. The plaintiff agreed that his activity on Soundcloud was minimal after 2017 compared to the years before. This was because most of the songs were recorded well before the accident. There were hundreds of songs recorded in live video performance, as well as approximately thirty audio releases.
107Second, the plaintiff was also asked about a consultation with Dr Lester Walton, psychiatrist, in June 2021. Dr Walton took a history that the plaintiff had a “longstanding interest in the participation as a semi-professional musician. He has been a keyboard and woodwind player, and he has not managed to resume that.”[20] It was suggested the plaintiff had told Dr Walton he had not resumed playing. The plaintiff responded by saying “not to the same extent”. It was then put to the plaintiff that in fact, when he saw Mr Walton, he had uploaded several performances with the band. The plaintiff disagreed. He said he had uploaded only two videos with the band, and he had told Mr Walton that. He was then asked why he had told Dr Walton he had not been able to resume that activity. The plaintiff said it was difficult to get back to his previous skill level. He could not recall how he put it to Dr Walton but agreed if he had said he had not resumed at all, that would be inaccurate.
[20]T42, L16
108The two video performances were played to the plaintiff in court. In the first video performance the plaintiff said there were eight songs played. He was shown a video of a song called, “Tear out my heart”, a live performance which was pre-recorded on 23 May 2020. The plaintiff could be seen playing an EWI4000 electronic wind instrument. The plaintiff was asked about the performance and agreed that it was filmed less than a year after the accident. At the time it was filmed, the plaintiff had undergone some hand therapy and treatment and was back working with his partner recording music, although not to earn money. He agreed he had not told Dr Walton about that particular video performance and said it “didn’t come up”. He could not even remember Dr Walton. However, he maintained he had difficulty playing and he would have told Dr Walton that. He could not say how Dr Walton had interpreted what he said.
109On the same day, a song called ‘Grotesque Live’ was also recorded. This was played to the plaintiff. It was suggested to the plaintiff that in the video he could be seen touching the keyboard and using his hand relatively freely. The plaintiff responded saying, “barely”, but agreed he could be seen playing a wind instrument and that he was not wearing a brace of any sort. He explained his aim by putting music on YouTube was to add music to the world which he said in re-examination he felt he was doing before the accident.
110He explained that music was part of his identity. It was an enriching pursuit. He enjoyed music and recording. He was the driving force behind the band Immaculata, and, although the band did not have a lot of success, participating in it was something from which he derived significant enjoyment.
111He went further in re-examination and said before the accident, he was looking forward to doing future performances and “gigs”. After the accident and recovery though, he did not have the strength, dexterity or skill to play because of his damaged wrist. His participation with the band petered out. Music had been a lifelong pursuit, which he felt he had lost because of his wrist injury.
112In a third video of a song called “Weltschmerz”, it was suggested that the plaintiff could be seen gripping the microphone, using the keyboard and opening and closing his hand. It was suggested his hand was “moving well”. The plaintiff disagreed. He said although he was using his hands, he was miming in the videos.
113He expanded on this in re-examination. He explained that on the videos of the performances, the standard of his keyboard and woodwind playing was not very good. He made a lot of mistakes. With a video performance, because there was no audience, if a mistake was made, it could be fixed. The only part of the performance that was live was when he was playing woodwind and singing. However, a live performance required skill. Since the accident, he did not feel capable of performing. He felt he did not have the required skill, he could not rely on his ability to play, and he was unable to practise.
114In addition to the plaintiff’s claim to have lost his ability to play music, he gave evidence about the impact of his injury on his ability to write music. He said he liked to use his melody instrument as a song-writing tool. Writing new music was difficult anyway, but as a result of the accident, he could no longer play his melody instrument in the way he had previously, and he did not feel he had music-writing skills anymore. The band stopped rehearsing and writing new material. That was partially because of his recovery period, but even after that it would have been impossible for him to perform. Further, there was no new music to upload. Additionally, he said he now finds it difficult to play. His skill and dexterity have gone, and he has a lot of pain.
115Having considered the music uploaded to Soundcloud and observed the plaintiff in the videos, it was apparent that there appeared to be some use of the plaintiff’s hands to hold the microphone, and to play the keyboard and wind instruments. Notwithstanding this, I did not consider this impacted the plaintiff’s credit or meant that he had unfettered or pain-free use of his left hand and wrist. The objective evidence supports the position that the plaintiff has significantly reduced grip strength. I accept he is unable to hold his instruments in the way he did before the accident. He has not been playing or producing music to a greater extent after the accident than he was before. The music uploaded to Soundcloud had all been recorded well before the plaintiff was injured and there was a lack of evidence of the plaintiff earning money from performing with the band after he was injured. Even if he had earned some money that had not been declared as taxable income, I am satisfied the amount of that income was negligible. Further, as he said, there were only two live video performances after he was injured. Although in those performances he could be seen using his hands, he was not constantly using them.
116It was also suggested to the plaintiff that he could still derive enjoyment from his music because he could still sing. The plaintiff agreed that in the year ended June 2019, Immaculata was singing and playing music together as a band. Since the accident though, because he could no longer play his melody woodwind instrument, he felt he could no longer sing. I accept his explanation. Although he has retained an ability to sing, he has nevertheless lost his ability to play keyboard and his woodwind instruments. I accept that his ability to play music generally has been significantly impacted.
117Before the accident the plaintiff was not a professional musician. He was not earning his income from playing music. Nevertheless, it was apparent from the plaintiff’s evidence that music was a very important part of his life. He is a creative person, and his ability to play music was more than a hobby. It formed part of his identity and was the foundation for his friendships and lifestyle. He said in re-examination, in relation to his evidence that he wanted to put art to the world:
“I feel like I’ve been doing that for my whole life, and that’s part of my identity, of who I am. It’s – I’ve always been known as Garth from Immaculata. Like, it’s something I’ve been doing for such a long time. And none of us, really, ever did it for the money. I mean music is a risky business. You’re not – very few people make, you know, a – a really good living out of music. But it’s still an enriching, um, pursuit, and it’s something that a lot of people get a lot of joy out of, um, outside of just me, as well, people that, you know, enjoy the performances, enjoy the recordings, and enjoy the music. It’s a – it’s a calling, you know. So ---.”
118I also accept that he can no longer write music in the same way he did before he was injured.
119I find the enjoyment he derived from his music has been substantially lost and this is a very significant consequence for him.
Sleep
120Mr Moaveni, in his report dated 28 July 2021, recorded that the plaintiff had stated that most of the time he was able to sleep at night.
121In his subsequent report prepared after his examination of the plaintiff on 20 July 2023, he confirmed that the plaintiff had informed him his sleep is not impacted by his injury.
122I find that there has been no impact on the plaintiff’s sleep because of his wrist injury.
Art and ceramics
123In his first affidavit, the plaintiff described having done ceramic pottery as part of his art course. He said after his accident he avoids creating three-dimensional works and sculptures because of wrist pain. The dexterity in his left hand has been reduced which he finds disappointing.
124Mr Moaveni, in his report dated 28 July 2021, and also in his subsequent report, also identified that the plaintiff was, “limited in his art and in particular, avoids doing sculptures or working with ceramics”. In his subsequent report, Mr Moaveni also noted the plaintiff requires assistance from his father with framing.
125Ms Livitsanis confirmed that the plaintiff would like to be doing ceramic pottery work, three-dimensional works and sculptures, but he does not feel able to because of his wrist pain, and because he needs both hands.
126I find that the plaintiff is no longer able to do ceramic pottery or create three-dimensional works and sculptures due to his left wrist pain.
Activities of daily living
127Before the accident, the plaintiff did not experience difficulties performing his activities of daily living. Since the accident, his activities of daily living have been limited.
128In his first affidavit, the plaintiff described experiencing difficulties when showering. He tended to use his right hand more than his left because of wrist pain. He generally found it harder to put on shoes or boots. He found cooking more difficult and lifting heavy pots and pans was problematic because his wrist gave out. He also found it difficult to open jars or to undo bottle tops, doorknobs or things that generally required a twisting motion. He was able to do the shopping but avoided carrying bags or things with his left hand. He tended to carry a shoulder bag and did smaller shops as it was easier to manage his wrist pain.
129Mr Moaveni noted in his report dated 28 July 2021, that the plaintiff’s capacity for activities of daily living at that time, had been impacted to a mild to moderate extent, by his left wrist injury. The plaintiff was generally able to perform his self-care and personal hygiene activities including showering, dressing and getting ready for the day, although he had modified some of his activities. He was also able to perform his household chores such as meal preparation, housekeeping, laundry and shopping. He avoided heavier and more repetitive tasks to stop his wrist aching. He was unable to perform heavier garden maintenance tasks including removal of partially fallen trees.
130Similarly, Dr Crock in his report dated 28 July 2022, noted that the plaintiff’s wrist pain had impacted a number of activities of daily living including bathing, grooming, dressing, eating and eliminating. Activities involving use of the left hand, as well as the right, such as carrying, lifting, pushing, pulling climbing or exercising had all been impacted. His grasping, holding and pinching ability had all significantly reduced, which was reflected in his grip strength.
131In his third affidavit, the plaintiff said he found it difficult to trim trees with his wrist pain. He used a mini chainsaw but found it harder than before the accident because of his wrist pain. He also generally found it more difficult to dig, rake, or sweep the garden. He still did gardening, but it took him longer. He could no longer use the axe to chop wood. He tended to now cook lighter meals.
132Mr Chehata noted in his report dated 20 June 2023, “it would certainly appear that his activities of daily living have not been affected and I would struggle to implicate an isolated wrist fracture that has been internally fixed with no complications or progressive degenerative change, avascular necrosis or nerve injury, to any major issues”.
133In Mr Moaveni’s most recent report, which was prepared after 20 July 2023 when the plaintiff was last examined, he noted the plaintiff reported minimal difficulty performing self-care and personal hygiene, including showering, dressing, eating and toileting. The plaintiff had adapted to accommodate his left wrist injury.
134He experienced moderate difficulty managing shopping duties, household chores such as dishwashing, bed-making, vacuuming, mopping and laundry. He found it difficult to lift up a mattress. He relied on his right wrist to carry a shopping basket and found it difficult to hold a jar with his left hand and to clean his bath. He also reported modest difficulty in gardening and lawn maintenance. He uses a mini chainsaw and is more reliant on his right hand.
135Ms Livitsanis, in her affidavit affirmed 31 August 2023, said the plaintiff had loved gardening before he was injured. Since his accident, the plaintiff’s parents had been required to go over to help him do odd jobs on his house and garden.
136In cross-examination the plaintiff said lifting heavy loads hurts a lot and there are some things now that he cannot do at all, including chopping wood.
137Having considered the evidence, I find on balance that the plaintiff’s consequences include moderate difficulty with shopping and household chores such as dishwashing, bed-making, vacuuming, mopping and laundry. He also has an inability to lift heavy loads. He is unable to chop wood and has modest difficulty in gardening and lawn maintenance. The plaintiff’s ability to carry, lift, push, pull, climb or exercise have all been impacted. His grasping, holding and pinching ability have all significantly reduced which has been reflected in his grip strength. He finds it difficult to hold a jar with his left hand and to clean his bath.
Sports and hobbies
138In his first affidavit, the plaintiff said that before the accident he had a fitness routine. He used to do about 30 push-ups each day, as well as loose weights. He now avoids doing push-ups and weights because of left wrist pain. He finds it difficult to lean, push off or put weight on, his left arm.
139He now avoids riding his bike which before the accident he rode twice a week. He said he feels anxious and does not like being on the road.
140The plaintiff’s mother, Yvonne Horsfield, deposed to the plaintiff being a creative person who had always been musical. He loved music, art and gardening.
141Dr Palliyaguruge, in her report dated 12 August 2020, referred to the plaintiff’s restrictions in performing push-ups or weights exercises.
142Dr Crock also noted an impact on the plaintiff’s social and recreational activities in his report dated 28 July 2022. He identified that the plaintiff can no longer ride a motorbike or play musical instruments which he used to do.
143Mr Moaveni, in his report dated 20 July 2023, noted that the plaintiff reported considerable difficulties with his social and recreational activities including playing his musical instruments, ceramics, sculpture and picture framing.
144I accept that the plaintiff’s social and recreational activities have been impacted, including his ability to engage in his pre-injury fitness regime of push-ups and loose weights. I also accept that the plaintiff avoids riding his bicycle. This is partly a consequence of his left wrist injury, but also his anxiety. I further accept his ability to enjoy his music, art and the garden are relevant consequences for him.
Weight gain
145Dr Walton, in his report dated 23 June 2021, identified that the plaintiff had told him that he had gained 15 kilograms in weight since the accident, as he had not been exercising as much.
146The plaintiff noted this as a consequence in his affidavit affirmed 24 May 2021, and said in his second affidavit that this consequence was one that remained “roughly the same”.
147I find the plaintiff’s weight gain has been a consequence for him.
Driving
148In his first affidavit, the plaintiff described feeling anxious about driving or riding and experiencing flashbacks of the accident. He finds steering with his left hand difficult. Driving in Melbourne is difficult. He is “pretty nervous driving my car or being a passenger”.
149He had started riding his motorbike again, but he was not riding it to the same extent as he was before the accident.
150Mr Moaveni noted, in his report dated 28 July 2021, that the plaintiff had avoided riding a bicycle or motorbike since the accident, but he was able to drive in a limited way, although the limitations on his driving were more psychological in nature.
151In his third affidavit, the plaintiff described how riding his motorbike had become harder since the accident. He found his left wrist and hand got tired after working the clutch. He now rides his motorbike a lot less compared to before the accident when he rode several times a week.
152This was confirmed by Ms Livitsanis, who said the plaintiff tries to avoid riding his motorbike because of his anxiety about being on the road and also his wrist pain.
153In his subsequent report, Mr Moaveni noted that the plaintiff does not have a car. He finds it difficult to pull up the hand brake.
154I find that the plaintiff’s ability to drive a car or motorbike has been impacted.
Social life
155The plaintiff said he now finds socialising and going out with friends hard. Before the accident he worked in a bar and was very sociable. He enjoyed going out. He said the lack of a social life has also impacted his sex life.
156The plaintiff’s mother also referred to the fact that the plaintiff does not socialise with his friends as much as he used to. She said he finds it hard going out with friends and being able to afford to buy a meal and drinks. She also said that before he was injured, he had a romantic interest in his life, but he does not now, because he does not socialise much.
157I find that the plaintiff’s injury has impacted his social life.
Analysis
158In assessing the plaintiff’s impairment consequences to determine where the plaintiff’s case sits within the broad spectrum of cases, it is necessary for the Court to consider whether the impairment consequences are “serious” for the particular plaintiff and also to compare the impairment suffered by the plaintiff with the range of possible impairments or losses.
159Whether an injury exceeds the required threshold by satisfying the definition of “serious injury” is largely a matter of impression and value judgement.[21]
[21]Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
160The plaintiff’s experience of pain is of almost constant pain in his left wrist, even when not being used. The pain is predominantly on the ulnar side of the left wrist. It is experienced as a sharp, stabbing pain in the left thumb which worsens, particularly when he puts weight on it or stress or force through it, and when performing loading, twisting or repetitive movements. The plaintiff takes Aspro Clear and Voltaren as needed. He does not take prescription medication for his pain and his sleep is not disrupted, although there are reasons for this. These matters suggest pain of low intensity which is consistent with the referral letter of Dr Palliyaguruge on 16 December 2022 to Dr Crock in which Dr Palliyaguruge noted the plaintiff was experiencing mild pain and discomfort.
161I considered the plaintiff’s submission that he was stoic. While I did not consider the evidence went that far, he nevertheless has continued to work in an office job he is not particularly fond of. I find that to be to his credit.
162I note though, that because there is a reason why the plaintiff is not taking prescription medication, it is possible that the pain he experiences is greater than “mild”.
163The plaintiff’s physical functioning is affected by the pain he experiences. Its disabling effects are evident from the descriptions he gave of the impact the pain had on his capacity to work as a postman. Although the plaintiff may not have suffered a financial loss, the plaintiff is unable to perform the duties required to work in his former employment as a postman. He finds it harder now to lift and handle heavier parcels because of his left wrist pain. Repeatedly using his left hand to deliver mail into letterboxes is also harder now, because that task involves reaching, twisting and some awkward movements that increase his wrist pain. Even if that were not the case, he is restricted in the work he might do in the future. As detailed in Glover,[22] the plaintiff’s capacity for obtaining different employment is now limited because his injury has impaired his capacity to do different work in the future.
[22]At paragraph [30]
164In Haden Engineering Pty Ltd v McKinnon,[23] the Court of Appeal noted that:
[23](2012) 31 VR 1 (“Haden”)
“Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s:
· 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.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.”[24]
[24]Haden at 5-6, paragraphs [16]
165The plaintiff is prevented from enjoying many of his former ordinary hobbies and leisure activities. His activities of daily living have been affected by the pain and dysfunction he experiences. His physical ability to carry, lift, push, pull, climb or exercise have all been impacted. His grasping, holding and pinching ability have all significantly reduced, which was reflected in his grip strength. He can no longer play and write music or create ceramic pottery and three-dimensional works and sculptures. He is no longer able to ride a bicycle, and his fitness regime has been impacted. He has moderate difficulty with shopping and household chores such as dishwashing, bed-making, vacuuming, mopping and laundry. He also has an inability to lift heavy loads. He is unable to chop wood and has modest difficulty in gardening and lawn maintenance. His ability to ride a motorcycle has been impacted. He has gained weight and his social life has been affected.
166The plaintiff has lost the ability to create ceramics and some forms of art such as sculptures. Importantly in this case, he has suffered a loss of enjoyment of life from losing his ability to play and write music. This is a very significant loss for this particular plaintiff.
167Overall, I am required to make a collective assessment of the plaintiff’s consequences and evaluate all of the pain and suffering experienced by the plaintiff. When that is done, I am satisfied that when the plaintiff’s impairment consequences are judged by comparison with other cases in the range of possible impairments or losses, they are more than significant and at least very considerable.
Conclusion
168I grant the plaintiff leave to commence a proceeding for damages.
169I will hear argument with respect to costs.
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