James v Toll Holdings Limited

[2021] VCC 1208

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-04791

SIMON JAMES	Plaintiff
v
TOLL HOLDINGS LIMITED	Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Melbourne
DATE OF HEARING:	24 and 25 June 2021
DATE OF JUDGMENT:	27 August 2021
CASE MAY BE CITED AS:	James v Toll Holdings Limited
MEDIUM NEUTRAL CITATION:	[2021] VCC 1208

REASONS FOR JUDGMENT
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Catchwords:     Workplace Injury Rehabilitation and Compensation Act 2013 – ss325 and 335 – application in respect of pain and suffering and loss of earning capacity – reliance upon paragraph (a) of the definition – injury to the dominant left wrist and hand – previous injury to the same body part – plaintiff returned after relevant injury to allegedly unpaid work involving his love of motor vehicles – credit of plaintiff – whether statutory test satisfied – factors to be considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Brett QC with Mr J Valiotis	Arnold Thomas & Becker
For the Defendant	Mr G Coldwell	Colin Biggers & Paisley

HIS HONOUR:

(1)General background

1This matter comes before me pursuant to the provisions of the Workplace Injury Rehabilitation and Compensation Act 2013, hereinafter referred to as “the Act”. In bringing this application, the plaintiff relies upon paragraph (a) of the definition of “serious injury”. Essentially, the plaintiff relies upon a specific incident of injury which occurred on 24 August 2017. The injury occurred when he was struck on the left hand and wrist whilst manoeuvring a curtain on a trailer in the course of his employment with the defendant. This shall hereinafter be referred to as “the work accident”, and the injury suffered shall be referred to as “the work injury”. The necessity for so describing it arises because the plaintiff had previously, approximately on 24 April 2017, suffered an injury to the same wrist and lower arm. This did not occur in the course of employment, but in a domestic setting. It shall hereinafter be referred to as “the home injury” and the occurrence of it as “the home accident”. The existence of the home injury played a role of some significance in the conduct of the case. The plaintiff is left handed, so that what is under consideration is injury to his dominant hand and arm.

2The plaintiff is seeking leave in respect of both pain and suffering and loss of earning capacity.  As shall be discussed, the plaintiff has a general love of motor vehicles and particularly of Holden Torana cars.  He has been engaged in the conduct of a business involving the wrecking of, and spare parts for, such vehicles.  Whilst it appears he has not been paid a salary in respect of such involvement, the issue of whether this demonstrates a capacity for suitable employment is one which will receive attention.  Other issues concern the nature of the injury suffered in the work accident, the extent of injuries emanating from the home accident, the nature of any injury suffered and whether the consequences of the work accident satisfy the statutory test.  The credit of the plaintiff was also placed in issue.

3Mr J Brett QC with Mr J Valiotis of counsel appeared on behalf of the plaintiff.  Mr G Coldwell of counsel appeared on behalf of the defendant.  The plaintiff gave evidence and was cross-examined.  The balance of the evidence was documentary in nature, including surveillance video, and was tendered either by consent or without objection.

(2)The Plaintiff’s background, training and education

4The plaintiff is aged 43 years, he having been born in April 1978.  He is a married man with three children, although there have been some matrimonial difficulties and a separation.  He was educated to Year 12 level.  He commenced, but did not complete, a Certificate IV in Business Marketing.  His only qualifications are that he has obtained a forklift licence, which has since expired, and also obtained a Heavy Combination Driver’s Licence.

5His employment history is that he worked for two supermarket chains, one as a filler and the other in logistics.  Subsequently he worked for an entity called Harris Refrigerated Transport for some three years and reached the level of Systems Operations Manager.  He then worked for a transport company as a driver, before obtaining employment with the defendant.  Originally he engaged in this employment for approximately one year.  He then left the transport industry and worked as a new car salesman for some 12 months, before commencing his own business performing panel-beating work.  He did this for some two years.  Following this, he performed casual work fitting exhausts on vehicles, before being re‑employed with the defendant.  Effectively, his work with it then involved the delivery of parts to automobile manufacturers or others engaged in the automobile industry.  Whilst, as shall be discussed, he missed some time from work due to a domestic accident, he was still performing the above duties at the time of the work accident.

(3)The state of the plaintiff’s health prior to the work accident

6Apart from the fact that the plaintiff is an asthmatic and suffers from reflux, and apart from the home accident to which I shall now turn, the plaintiff’s health prior to the work accident was good.

7The home accident occurred on 24 April 2017.  The plaintiff slipped and fell onto a concrete floor in his garage.  It would appear that he suffered a hairline fracture of the left scaphoid and was absent from his employment for a few weeks.  A cast was applied.  The hairline fracture healed satisfactorily.  The plaintiff had no further problems in relation to it prior to the work accident.  By that time, the plaintiff was working full-time on unrestricted duties.  He has sworn that he had no pain or restriction of movement and was not having any treatment.

(4)The Plaintiff as a witness

8I found the plaintiff to be a straightforward witness and I consider him to be a reliable one.  In his closing address, Mr Brett submitted that I should find the plaintiff to be an outstanding witness who made appropriate concessions.  Mr Coldwell argued that I should find him to be unreliable and misleading.  Whilst perhaps not going quite to the level of describing him as outstanding, I do accept that he made appropriate concessions and I do not find him to be unreliable.  I note that Dr Peter Blombery, pain specialist and cardiologist, who examined the plaintiff at the request of his solicitors, observed that the plaintiff presented reasonably and with no exaggerated pain behaviour.  In summary, the plaintiff is a witness whose evidence I accept.

(5)The Injury, its treatment, consequences and prognosis

9As stated, the plaintiff suffered the work injury on 24 August 2017 when, whilst manoeuvring a curtain on a trailer, a bar came loose and smashed into his left hand and wrist. 

10It is apparent that the plaintiff had been referred to Capital Radiology by Dr Yvonne Wong of Laverton North, she apparently being the “works doctor”.  A CT scan was performed, and this is dated 24 August 2017, the day of the work accident.  An appropriate history was taken.  Further, the report of the radiologist indicates that a history had been given of the previous hairline fracture in April 2017.  That observation was followed by the words “Rule out fracture.”  The conclusion of the radiologist was that there was a longitudinal fracture at the radial aspect of the distal pole of the scaphoid and this was presumed to be recent unless proven otherwise.

11Again upon referral from Dr Wong, a further x‑ray was performed on 13 October 2017.  The findings of the radiologist were that the fracture through the lateral aspect of the distal pole of the scaphoid was still faintly visible and the position remained satisfactory. 

12It would appear that it was some time after this that the plaintiff’s treatment was taken over by his general practitioner, Dr Jennifer Maxwell.  Further, it appears that he was seen by a physiotherapist.  It would also seem that the plaintiff was made redundant by the defendant on 26 September 2017 at a time when he had not been cleared for driving duties.

13In any event, upon referral from Dr Maxwell, the plaintiff was seen by Mr Ash Chehata, shoulder, elbow and wrist surgeon. Mr Chehata first saw the plaintiff on 25 January 2018.  He obtained a history which included the home accident and the fracture of the scaphoid which occurred.  Due to the passage of time since the last radiology, Mr Chehata referred the plaintiff for an MRI and CT scan on 27 February 2018.  These investigations confirmed ulna carpal abutment, the signs being indicative of ulnar abutment syndrome.  The scaphoid fracture had in fact united, with a volar ganglion deep in the carpal tunnel, close to the articulation of the lunate and capitate.

14Mr Chehata saw the plaintiff again on 22 March 2018, when the radiological findings were discussed.  Upon examination, the plaintiff had classic ulnar abutment syndrome.  Ultimately it was thought that an ulna shortening was the surgical solution.  Operative intervention in the form of a left wrist arthroscopy and ulna shortening was in fact performed on 28 June 2018.  As I understand it, the defendant paid for this surgery.  Following surgery, the plaintiff was referred for hand therapy.  In his report to the plaintiff’s solicitors of 8 April 2019, Mr Chehata made the observation that, although the plaintiff required a significant amount of time off work, the expectation was that he would make a complete recovery.

15However, when Mr Chehata reviewed the plaintiff almost six months later on 25 February 2019, the plaintiff was continuing to suffer ongoing pins and needles and numbness, worse in the morning, and indicative of a central carpal tunnel syndrome.  Mr Chehata considered the organisation of nerve conduction studies in order to clarify the ongoing symptoms.

16Mr Chehata wrote to Dr Maxwell on 25 July 2019.  At this time, the plaintiff’s pain was more isolated to a joint in his thumb.  Mr Chehata was not of the view that operative intervention was required.  He did not believe that there was any likelihood of the plaintiff returning to his normal duties.

17Some apparent gaps in the treatment history have been filled by the report from Dr Paul Summers, also of Modern Medical at Caroline Springs, the clinic at which Dr Maxwell is or was based.  Having reviewed the clinical notes and available imaging, Dr Summers expressed the opinion that it would seem clinically probable that a soft tissue injury was sustained by the plaintiff on the day of the work accident.  This led to degenerative changes, ultimately in turn leading to the ulnar abutment syndrome as demonstrated on the MRI and CT imaging.  Accordingly, subsequent interventional surgery by Mr Chehata was required. 

18Dr Summers stated that, since surgery, the plaintiff’s symptoms were of fatigue pain and limitations with overuse of the wrist and reduced flexibility with reduced power.  This prevented him from functioning in his pre-accident capacity, in order to avoid flaring symptoms.  Dr Summers also stated that, whilst it was difficult to infer the full impact from available notes, it had been clear through his many follow‑up reviews that there has been a significant toll taken by the injury on the plaintiff’s ability to work and also on his domestic life, including his passion and hobby of car mechanics.  There are certain activities which he has to avoid in order to prevent flare‑ups of pain, and he often has to pace activities in order to avoid overuse fatigue-related pain.  The impact of this on his quality of life has been significant.  It has clearly caused a great deal of stress in terms of having to change career due to his limited capacity.  It has also impacted upon his engaging with his hobbies.  Dr Summers agreed with Mr Chehata that there was no prospect of the plaintiff returning to his pre‑injury duties because of his reduced capacity. Dr Summers also thought that the plaintiff’s current restrictions and limitations were likely to be stable and permanent.  Dr Summers considered it unlikely that the plaintiff would see any tangible improvement in current function or pain for the foreseeable future.  The plaintiff is at a higher risk of early osteoarthritic change in the long term.

19The plaintiff has also been seen for medico-legal purposes.  At the request of his solicitors, he was seen by Dr Joseph Slesenger, specialist occupational physician, on 22 December 2020, reporting on 4 January 2021.  The examination was undertaken via Telehealth.  Dr Slesenger took an appropriate history, including details of the home accident.  He noted that, at the time of the work accident, the plaintiff had been back at work for three to four months, performing normal duties without restrictions.  He also reported details of the plaintiff’s treatment after the work accident, including the referral to Mr Chehata and the surgery performed.  The plaintiff advised Dr Slesenger of his ongoing pain, stiffness and restricted range of movements, including difficulty gripping, twisting, pushing, pulling and turning.  He had trialled a steroid injection, which did not improve his symptoms.  The plaintiff was taking Nurofen.  He was not currently seeing a specialist or receiving physiotherapy or hand therapy.  He used his right hand for daily chores, such as mopping, vacuuming, shaving, washing and the like.  Whilst occasionally performing some light car repairs, he had been unable to return to the level of car maintenance that he had performed previously.

20The plaintiff described to Dr Slesenger his involvement with his brother at a second-hand car-parts supplier in Deer Park.  Effectively he said that his brother runs that business, but he, the plaintiff, would attend three or four days a week, usually arriving about 8am and spending up to 4−5 hours per day performing office duties, including phone calls and invoices.  (It would appear that it is in fact the plaintiff’s brother-in-law, and not his brother as recorded by Dr Slesenger, who is associated with the business.)  He also delivered light parts and occasionally assisted in the workshop – for example, using power tools to remove car components.  He is able to attend at will, but, whilst he may attend 2−3 days a week, his attendance is variable and unpredictable.  He is assisted by customers at delivery sites.  Dr Slesenger described the plaintiff’s computer skills as being reasonable, in that he can email and use an Excel spreadsheet.  Dr Slesenger also noted that the plaintiff had undergone a nerve conduction study on 15 April 2019, the findings being those of a left carpal tunnel syndrome.  The plaintiff indicated that he did not intend to have anything done in relation to this.

21The diagnosis of Dr Slesenger was of a scaphoid fracture, in respect of which the plaintiff has undergone left wrist arthroscopic total synovectomy, debridement and capsular repair.  He has chronic left wrist pain, with evidence of carpal tunnel syndrome.  There is possible degenerative disease of the left wrist.  Dr Slesenger was satisfied that the plaintiff has a substantial organic basis for his injury.  Dr Slesenger was also satisfied that this was related to the work accident.  In relation to the home accident, he noted that the plaintiff had been able to return to work, performing pre‑injury duties and working pre‑injury hours, and had been symptom-free.  Dr Slesenger was of the view that the plaintiff could not return to his pre‑injury role, and advised against his returning to tasks that required repetitive manual handling, or firm gripping, pushing, pulling or torque movements.  He thought that the plaintiff’s residual restrictions and limitations were likely to continue into the foreseeable future.  They had stabilised and there was unlikely to be improvement.  The plaintiff is at risk of deteriorating symptoms.  Accordingly, in the opinion of Dr Slesenger, the plaintiff’s prognosis is guarded.

22The plaintiff was also seen at the request of his solicitors by Associate Professor of Surgery Felix Behan.  I note from his qualifications that Associate Professor Behan is a former head of the Unit of Plastic, Reconstructive and Hand Surgery at the Western Hospital and is a member of the Australian Hand Surgical Society.  Associate Professor Behan examined the plaintiff on 15 February 2021, reporting on 17 February.  This was a Zoom conference and accordingly had some limitations, particularly in relation to examination.  Nevertheless, Associate Professor Behan was able to provide a comprehensive report.  Digital photography provided by the plaintiff was professionally processed.

23Associate Professor Behan took a detailed history of the work accident and the subsequent treatment.  Associate Professor Behan noted the plaintiff’s current symptoms, including the fact that his pain and paratheses usually wake him two hours before daybreak.  He also noted that the plaintiff was not currently on any medication.  He was aware of the plaintiff having a fractured scaphoid as a result of the home accident.  He referred to the fact that the fractured tubercle of the scaphoid suffered in the home accident may have complicated the injury sustained in the work accident.

24Associate Professor Behan commented at some length upon the digital photography.  He considered that the plaintiff would have a disability in relation to industrial loss.  Part of Associate Professor Behan’s report was specifically directed to disability assessments.  He also reported that the plaintiff had “... a strong, if not positive, work ethic, very keen to get back to a positive work environment that does not entail stress to the damaged (L) wrist”.  He was of the view that the work accident had damaged the base of the left thumb, whereas the damage to the scaphoid had occurred in the home accident.  However, he thought that there was a connection between the plaintiff’s ongoing symptoms and the work accident.  Heavy manual activity, such as driving heavy industrial vehicles, was now impossible.  Associate Professor Behan also noted the severe effects on the plaintiff’s domestic lifestyle, bearing in mind that he is left-handed.  He referred to the prognostic outlook as being bad.  Associate Professor Behan disagreed with, or at least questioned, an observation of Dr Cheesman, who examined the plaintiff at the request of the defendant, to the effect that the work accident caused a fracture at the same site as the home accident.

25It is apparent that the solicitors for the plaintiff sought a further opinion from Associate Professor Behan in relation to the x‑ray finding of 6 June 2017 – that is, after the home accident, but before the work accident.  Associate Professor Behan’s observation was that it was impossible to say categorically whether the previous injury as demonstrated on that x‑ray and the subsequent damage done in the work accident of 24 August 2017 were linked.  Essentially, he stated that his suspicions that they were unrelated were confirmed.

26The plaintiff has also been seen at the request of his solicitors by Dr Peter Blombery, pain specialist, this perhaps being because of a suggestion in the report of Associate Professor Behan.  I might add that this appears to have been an examination that was carried out in person.  Dr Blombery took an appropriate history, including both accidents.  To Dr Blombery, the plaintiff complained of ongoing pain in the left hand and wrist, present all the time.  He rated the average pain as being 4/10, but this would increase to 10/10 with use of the hand.  He had been able to sleep despite the pain.  The plaintiff found it very frustrating not being able to do tasks with his left hand.  He was taking Nurofen and Panadol, and the occasional Endone.  He referred to doing some voluntary work for his brother, which he said kept him sane.

27Dr Blombery observed that the plaintiff had no evidence of complex regional pain syndrome.  He thought that there might have been a problem in the nature of a non‑specific pain syndrome where there is sensitisation of pain nerve pathways.  He thought it unlikely that there was going to be any significant change in the plaintiff’s level of disability in that regard in the foreseeable future.  There could be possible benefit from attendance at a pain management clinic.  He noted that the plaintiff had a reduced power of hand grip on the left side that was likely to persist in the future.  Further, as the plaintiff is left-handed, he would be limited quite markedly in terms of his ability to be employed.  He is doing some very light work in his brother’s business, as compared to the work that he had previously done.  He has no capacity to return to his previous job as a truck driver.  The diagnosis of Dr Blombery was of a fracture of the left scaphoid bone, complicated by a pain syndrome.  He believed that the injury had a substantial organic basis.  It continued to be related to the accident.  The plaintiff has no capacity for his pre‑injury duties and would be very limited in terms of performing repetitive manual handling.  He has a marked reduction in power of the left hand grip, in addition to ongoing pain in the affected area.  In the opinion of Dr Blombery, the prognosis for recovery is poor and the restrictions and limitations will continue into the foreseeable future.

28On 19 May 2021, Dr Blombery provided a supplementary report.  There is no indication that he saw the plaintiff again.  Various radiological reports had been sent to him.  He was of the opinion that the x‑ray material had no significant impact overall in terms of his interpretation of the roles played by the two accidents.  He noted that, after the home accident, the plaintiff had been immobilised in plaster for five weeks and had been able to return to work on a full-time basis with only minimal discomfort in the relevant area.  A further radiology report which he had been forwarded did not affect the conclusions contained in his earlier report.

29The defendant has also had the plaintiff examined for medico-legal purposes.  Two reports to the defendant were in fact placed in evidence by the plaintiff, although one (the report of Dr Cheesman) was also put in evidence by the defendant. 

30Dr Tony Kostos, consultant rheumatologist, saw the plaintiff at the request of the defendant on 9 July 2019, this being the report that was placed in evidence by the plaintiff only.  Dr Kostos took a detailed history of the accident and the subsequent medical treatment, particularly that by Mr Chehata.  He noted that the plaintiff had not agreed to proceed with a proposal by Mr Chehata to undergo carpal tunnel decompression surgery.  It is evident that the plaintiff was concentrating more on the ongoing pain over the radial aspect of his left wrist.  He told Dr Kostos that he was in constant pain around the radial aspect of that wrist, which was where his pain had always been, and that he did not have pain over the ulnar aspect of the wrist.  Pain was generally not a problem at night “because I usually knock myself out”, but during the day pain was aggravated by any activities requiring a forceful grip, this being compounded by a reduction in grip strength.  The plaintiff informed Dr Kostos that his main hobby was working on his Torana motor vehicle.  Upon examination, Dr Kostos noted some tenderness over the radial aspect of the left wrist, but none around the ulnar aspect.  Dr Kostos also made the observation that, neurologically, the plaintiff’s grip strengths were 35 kg on the right and 16 kg on the left.  He was of the view that the plaintiff’s initial problem was a fracture of the left scaphoid bone.  He noted that there had been a previous hairline fracture (in the home accident).

31Dr Kostos expressed the view that it was difficult to understand how approval (presumably by the defendant) was ever given for the ulna shortening osteotomy performed by Mr Chehata, when it had nothing to do with the left scaphoid fracture and the plaintiff had never had pain on the ulnar side of the wrist.  Dr Kostos expressed the opinion that the plaintiff’s condition had been caused by the fractured scaphoid and the subsequent surgery.  In that regard, the fractured scaphoid was caused by the work accident and was a new condition.  Although the evidence was that the plaintiff’s left scaphoid fracture had healed, he did have a restriction of wrist flexion as a result of the surgery undertaken and this was likely to be permanent.  Dr Kostos did not believe that the plaintiff was totally incapacitated for work.  He thought it best if the plaintiff was treated conservatively.  I should add that there are a number of questions answered by Dr Kostos in relation to the desirability of further surgery, and it may be that this examination and report were organised by the defendant in order to obtain an opinion in relation to any further proposed surgery.  In any event, Dr Kostos was of the view that the plaintiff had permanent restriction of wrist flexion as a result of the surgery that had been undertaken.

32Dr Ben Cheesman, consultant occupational physician, reported to the defendant on 3 December 2019, having seen the plaintiff on 22 November.  Dr Cheesman took a full history, concentrating in part upon the plaintiff’s employment history.  However, he also received a history of both the home accident and the work accident.  Again, in this examination, the plaintiff was adamant that he had never had symptoms on the ulnar side of his wrist.  It would seem that the nature of the surgery to be performed on 28 June 2018 was altered when Mr Chehata was given this history.  Accordingly, the surgery performed was a wrist arthroscopy with removal of some synovial tissue.  Dr Cheesman noted that Dr Kostos had been critical of the previous surgery and was suggesting an injection which could be trialled in relation to carpal tunnel syndrome.

33The plaintiff informed Dr Cheesman that he was currently doing voluntary work assisting his brother-in‑law with a database and website setup in an automotive parts business.  He was avoiding heavier manual handling.  He had inhalers for asthma and took a medication for reflux.  Upon examination, Dr Cheesman found a reduced range of movement of the left thumb with reduced opposition.  Sensation was intact.  There was localised pain around the base of the thumb and on the left thumb.   I should add that only three pages of Dr Cheesman’s report were placed in evidence.  Whether this was by accident or by design is not clear.

34Mr Thomas Robbins, who specialises in plastic and reconstructive surgery, including hand and cosmetic surgery, saw the plaintiff at the request of the defendant on 13 August 2020, reporting on that day.  The history taken by him included that concerning the home accident.  Mr Robbins took a history of the plaintiff’s injuries and treatment, including that there was evidence of mild carpal tunnel syndrome that had not been treated.  He described the plaintiff as being definitely tender at the base of the left thumb and over the scaphoid bone.  He found no clinical evidence of carpal tunnel syndrome.  The plaintiff said that he could no longer do panel-beating or sanding because of the pain around the base of his thumb, and was working 20 hours a week doing data entry on a computer for his brother-in‑law, but protecting his left, dominant hand.  Mr Robbins considered the carpal tunnel condition to be irrelevant to the claim.  He felt that the plaintiff’s pain and tenderness seemed genuine, but suspected that the symptoms related to the home accident.  He also suspected the existence of psychological or non-organic factors.  Mr Robbins thought that the plaintiff would be suitable for work as a salesman or spare-parts interpreter, but not as a panel-beater or a handyman.  If the plaintiff was totally genuine, the prognosis must be guarded.

35On 17 June 2021, Mr Robbins provided a supplementary report.  He did not see the plaintiff again.  It would appear that an x‑ray report of 6 June 2017 (that is, in the time between the two accidents) had been provided to Mr Robbins.  It did not cause him to change his views.  He observed that the scaphoid fracture which occurred in the home accident could cause continuing trouble.  He thought that a plain x‑ray of the wrist could be helpful to check the present state of the scaphoid bone, but did not consider this to be essential.

36Dr Anthony Kam, consultant radiologist, reported to the defendant on 19 March 2020.  It would appear that he did not see the plaintiff, but was solely commenting upon the radiology.  He had been sent a large amount of material, including a number of the medical reports which have been referred to above and the radiology.  This material did not include anything relating to radiology on 6 June 2017, this being commented upon in a brief supplementary report to which I shall come.  Dr Kam expressed the opinion that, allowing for a difference between an x‑ray on 25 May 2017 as opposed to a CT on 24 August 2017, the same fracture was detected on each radiological investigation.  He could not identify any difference or change that could be attributed to the work accident.  He thought that the radiological findings suggested that the home fracture had not yet united by the time of the work accident.  He also stated that the x‑ray image of 13 October 2017 indicated that the same scaphoid tubercle fracture had united.  The subsequent MRI and CT images indicated that it had completely united.  There was no evidence to indicate that the work accident caused a fracture or injury to the left wrist.  Rather, the CT scan of 24 August 2017 suggested that the pre-existing scaphoid tubercle fracture had not yet united.  He considered it less likely that the work accident caused a fracture of the scaphoid that was identical in radiological appearance to the fracture seen on the x‑ray of May 2017.

37Dr Kam provided a supplementary report dated 21 June 2021.  He reviewed the file, together with an additional radiological report of the x‑ray of 6 June 2017.  He noted that the actual x‑ray images of that date were unavailable.  He saw no reason to alter the views which he had previously expressed.

38A report dated 29 March 2021 was received by the defendant’s solicitors from Mr Damian Ireland, orthopaedic surgeon, who specialises in surgery of the hand.  It is interesting to note that Mr Ireland did not actually see the plaintiff, but gave a report, as requested, “on the papers”.  It would seem to me that this has its obvious limitations.  That is no criticism of Mr Ireland, who reported as requested.

39Mr Ireland noted the history of the work accident and its treatment.  He also had a history of the home accident, along with the treatment and radiological investigations that followed.  Mr Ireland referred to the work accident as causing an aggravation of the previous injury, noting that, for the second injury, the plaintiff had a longer period of cast immobilisation.  Mr Ireland also noted that, after the surgery, the plaintiff developed symptoms of carpal tunnel syndrome, these being subsequently confirmed, but was currently symptom-free in relation to this diagnosis.

40In response to specific questions concerning the diagnosis of the plaintiff’s left wrist injury or condition sustained in the work accident, Mr Ireland stated that it was not possible to offer a diagnosis without personally elucidating a history from the plaintiff and personally examining his left wrist.  However, based on the file, it was his opinion that the injury sustained in the work accident was an exacerbation of the earlier injury.  He also observed that ulna carpal abutment syndrome is a constitutional developmental condition and that the plaintiff appeared to have substantially recovered from it.  There is a ganglion cyst which may or may not be work-related.  Mr Ireland raised a query as to whether this was a clinical diagnosis or simply an imaging study diagnosis.  In relation to a large ganglion cyst, Mr Ireland pointed out that there was no report on the size or exact location of it.

41Based on the more recent report of Mr Robbins, Mr Ireland said that there was in fact no convincing subjective evidence or objective clinical findings providing evidence of ongoing carpal tunnel syndrome.  He was not of the opinion that ulna carpal abutment syndrome, ganglion cyst or carpal tunnel syndrome were related to the work accident.  He thought it likely that the work accident aggravated the pre-existing injury by disrupting the stable, fibrous non-union of the fracture.  However, he based this opinion solely on the fact that the plaintiff stated that he was virtually symptom-free by the time that he resumed work seven weeks after the initial injury.  He did not consider that there was any credible temporal time relationship between either injury and the onset of carpal tunnel syndrome twelve months later.  However, he also observed that, as the fractured scaphoid tubercle had now united, the prognosis for it alone was excellent.  He added that, without the ability to personally examine the plaintiff, he was not prepared to comment on prognosis following surgical treatment for ulna carpal abutment syndrome or on the presence of carpal tunnel syndrome.

42Mr Ireland provided a further report on 17 June 2021.  Again, he did not see the plaintiff.  It would seem that the only enclosure that he was forwarded on this occasion was that of the x‑ray report of 6 June 2017 (between the two accidents).  He considered this to be consistent with the diagnosis of delayed union left scaphoid tubercle fracture.  The fracture followed the home accident, but was exacerbated by the work accident.  It went on to complete bony union as noted on the radiology of 28 February 2018.  The additional x‑ray report did not cause him to alter any of his comments or conclusions previously made.

43Having summarised and considered the medical material, and the plaintiff’s evidence, I have come to the following conclusions.  I might say that some of these are reinforced by the helpful report from Dr Summers.  I would further add that it seems to me to not make a great deal of difference whether the plaintiff’s injury is viewed as a new injury in virtually an identical location to a previous injury or as an aggravation of such previous injury.

44I accept that, following the home accident in the garage on 24 April 2017, the plaintiff recovered virtually completely.  After being away from work for approximately seven weeks, he returned to full-time, unrestricted work performing what are quite heavy duties.  As has been pointed out by Dr Summers, review at the Western Health fracture clinic on 6 June 2017 resulted in a finding of no significant issues, the only exception being that on one occasion the plaintiff’s wrist felt sore after three straight days of painting the house.  Physical examination at that clinic on 6 June 2017 revealed a full range of movements of the left wrist, no tenderness of the anatomical snuffbox, and no pincer grip abnormalities.  The plaintiff was discharged from orthopaedic review.  Thus, he was either completely or virtually symptom-free at the time of the work accident.  He has suffered from the symptoms referred to above ever since.

45As shall be discussed, I am satisfied that the consequences of injury suffered in the work accident are permanent within the meaning of the Act.  Accordingly, it seems to me to make little difference whether those consequences are seen as being the result of a new injury in the same location or the aggravation of the injury suffered in the home accident, which had become pain free. 

46Dr Summers expressed the opinion that the clinical probability was that a soft tissue injury was sustained in the work accident, this leading to degenerative changes from the impact of pain on the plaintiff’s function, leading in turn to the ulnar abutment syndrome as demonstrated on radiology and subsequently requiring the interventional surgery performed by Mr Chehata.  If it is considered that the workplace injury occurred at the base of the left thumb, the above proposition remains valid.

47In short, the consequences of the work accident seem to me to be virtually identical, whether the work accident represents a new cause of the symptoms or an aggravation of the injury suffered in the home accident, which had become symptom free and was not preventing the plaintiff from performing a full range of duties, including heavy work.  If forced to select between the two, I would lean towards the opinion of Associate Professor Behan that the work accident had damaged the base of the left thumb, whereas the damage to the scaphoid had occurred in the home accident.  However, in the context of this case, not a great deal may hinge upon this.

48I am of the opinion that the consequences of the work accident are permanent within the meaning of the Act, in that they will persist for the foreseeable future.  Dr Blombery has expressed the view that the prognosis for recovery is poor and that the plaintiff’s restrictions and limitations will continue into the foreseeable future.  As earlier stated, he was also of the view that the injury continued to be related to the work accident.  Associate Professor Behan was of the opinion that the prognostic outlook was bad.  Dr Summers expressed the opinion that it is unlikely that there will be any tangible improvement in current function or pain for the foreseeable future, although alluding to the higher risk of early osteoarthritic change in the longer term.  Mr Robbins, examining on behalf of the defendant, stated that, if the plaintiff was totally genuine (and I am of the view that he is), the prognosis must be guarded.  I am satisfied that the consequences of the injury will persist for the foreseeable future and are thus permanent within the meaning of the definition. 

49I am not of the opinion that there are any psychiatric or psychological consequences of any great moment.  Dr Blombery, who is a pain specialist, stated the opinion that the plaintiff’s injury had “a substantial organic basis”.  Mr Robbins, examining on behalf of the defendant, mentioned that he suspected the existence of psychological or non-organic factors, but also stated that the plaintiff’s pain and tenderness seemed genuine.  Dr Summers, who has been treating the plaintiff, makes no mention of factors of a psychological or psychiatric nature and describes the plaintiff’s symptoms in organic terms.  Associate Professor Behan describes them similarly.  I would add that there is nothing in the plaintiff’s behaviour when giving evidence that was suggestive of a psychological or psychiatric component.  Any consequences of a mental or behavioural disturbance or disorder shall not be taken into account, but I am of the view that they are minimal, if they exist at all. 

(6)Other developments since the injury

50In relation to employment, it would appear that the plaintiff was made redundant by the defendant on 26 September 2017.  In his first affidavit, he has sworn that this may have been in part due to the Toyota factory closure (the plaintiff had been making deliveries to Toyota for the defendant and was actually on location at Toyota when the injury occurred).  However, at the time of being made redundant, he had not been cleared for driving duties, because of the damage to his wrist suffered in the work accident. 

51Save for the business which he set up in a partnership registered in April 2019, the plaintiff has performed no other work.  This business is called “The Wreck Shed”.  It is located in Deer Park.  Whilst it is still operating, I accept that it has been a financial failure and is expected to close down. 

52The Wreck Shed is run in partnership by the plaintiff and his brother-in-law, Mr Daniel Vogt.  An affidavit from Mr Vogt was placed in evidence by reason of its inclusion in the Plaintiff’s Court Book.  He was not required for cross-examination.  According to Mr Vogt, the plaintiff’s original investment in the business was $9,000 and Mr Vogt put in the rest as required.  He has described the plaintiff’s involvement as being “more or less as a silent partner because it is my business and his involvement has been hindered by the fact that he has an injury to his left wrist …”. 

53The plaintiff attends at The Wreck Shed regularly and in the order of three or four days per week.  He frequently unlocks the premises of a morning.  The Wreck Shed deals with spare parts and the like for Holden Torana motor vehicles and they are cars in which the plaintiff is greatly interested.  He does not get paid for his time or work there.  Essentially he assists his brother-in-law with some administrative work, whilst also engaging in limited physical activities from time to time.  Not only does he not get paid, but he has not recovered the $9,000 which he originally outlaid. 

54Video material taken on 18 March 2021 showed the plaintiff engaged in some activities at The Wreck Shed.  Certainly the plaintiff played a role in some physical activity, such as assisting in pushing what appeared to be effectively a car body still on its wheels.  The plaintiff said that the vehicle had no motor, transmission, tail shaft or steering rack.  He also pushed another vehicle, essentially using his body whilst having his left hand on the steering wheel.

55I do not regard the video material as being particularly damaging in relation to the use of or strength of the lower left arm.  He did not appear to me to be engaging in activity which put particular stress on that limb.  It does indicate that the assistance which he gives at The Wreck Shed can include physical activity, although this is not something that is completely denied by the plaintiff.  What would appear to have been established by his evidence is that he frequently plays some role in the operation of The Wreck Shed, even if he is receiving no income from it.

56In March 2019, the plaintiff made a trip to Townsville in Queensland for the purpose of picking up a type of motorhome for a friend and driving it back to Melbourne.  The friend paid for the airfare to Townsville.  To drive the vehicle back to Melbourne  took approximately a week and the plaintiff enjoyed his time driving.  The plaintiff admitted that he had not “specifically” told examining doctors about this driving.

57More recently, on 25 April 2021, the plaintiff and a friend went on a driving trip in the plaintiff’s Nissan Patrol four-wheel drive vehicle.  This was obviously an extensive trip, taking four weeks and five days.  They went across the south coast of South Australia, over the Nullarbor Plain to Kalgoorlie and then to Perth.  They drove from Perth to Broome.  From there they drove to Katherine and then back down the middle of Australia to home.  The plaintiff agreed that he did his share of the driving. 

(7)Ruling

(a)     Loss of earning capacity

58I am not satisfied that the plaintiff has discharged the burden of proof in relation to loss of earning capacity.  I appreciate that the plaintiff has suffered a nasty injury to the area of the thumb on his dominant left hand.  However, I would point out the following:

(i)The plaintiff is educated to Year 12 level.  He has extensive knowledge of various aspects of the motor vehicle and transport industries.  When employed by Harris Refrigerator Transport, he reached the level of Systems Operations Manager.  He worked as a new car salesman for 12 months.  He operated his own business as a panel beater for some two years.  I appreciate that, for example, the panel beating work may well have involved repeated use of the hands, and particularly of the dominant hand.  However, the fact remains that he has considerable experience and expertise in various aspects of industries related to motor vehicles.

(ii)The plaintiff has demonstrated that he is capable of very extensive driving.  He drove a type of motorhome (although he described it as being a HiLux ute with something resembling a house body on the rear of it) from Townsville to Melbourne in March 2019.  Earlier this year, he did “his share of the driving” of a very extensive trip around Australia and through the outback, this taking almost five weeks.  It is difficult to believe that some form of light driving occupation would be beyond him.

(iii)Of course, the plaintiff is in fact assisting with the operation of a business related to motor vehicles, being a business in which he is a partner.  It may be that he put only $9,000 into the setting up of this business and has derived no income from it since.  However, he attends it on a very regular basis.  I am satisfied that he makes some physical contribution to what occurs, as seen on the video.  He also does administrative work and can be present at the premises several days a week.  He frequently opens it of a morning and can close it of a night.  He also attends to such matters as Facebook entries.  Whether or not he is in receipt of any income from the enterprise, he is there on a regular basis and performs various duties.

(iv)The overwhelming, if not unanimous, medical opinion is that the plaintiff had a capacity to perform suitable employment.  Certainly, there is no report that states that he is, and for the foreseeable future will be, totally incapacitated for employment.  In his brief letter of 25 July 2019 to Dr Maxwell, the treating orthopaedic surgeon, Mr Chehata, did not believe that there was any likelihood of the plaintiff returning to his normal duties.  Dr Slesenger, who is an occupational physician, expressed the opinion that the plaintiff could not return to his pre‑injury role and advised against his performing tasks that required repetitive manual handling, firm gripping and the like.  He did not indicate that the plaintiff is totally incapacitated.   He had taken a history of the plaintiff assisting in the business at Deer Park, attending for some 12 to 20 hours per week, performing office duties and occasionally assisting in the workshop.  He made no specific observation as to the plaintiff’s capacity to perform suitable employment on a full-time basis.  Associate Professor Behan noted that the plaintiff was looking forward to being retrained in a sedentary occupation and considered him to have a disability from an industrial loss point of view.  He referred to retraining in a lighter duty capacity, whilst saying that heavy manual activity was now an impossibility.  Dr Blombery was aware that the plaintiff was performing some very light work in a business.  He expressed the opinion that the plaintiff had no capacity to perform his pre‑injury duties.  He also thought that the plaintiff would be very limited in terms of performing repetitive manual handling.  Dr Summers, the plaintiff’s treating general practitioner, has referred to the plaintiff being stressed by having to change career due to his limited capacity and the impact upon his engaging with his hobbies.  Mr Thomas Robbins, examining at the request of the defendant, was of the view that the plaintiff would be suitable for work as a salesman or spare-parts interpreter, but not as a panel beater or handyman.  It would be fair to say that the general impression created by the medical material is that the plaintiff has a capacity for suitable light work.

(v)The issue then is whether that capacity translates into a loss of earning capacity of at least 40 per cent, based upon gross annual income figures.  In my opinion, the evidence does not permit such a conclusion to be reached.  On the balance of probabilities, no such loss of earning capacity has been established.  The burden of proof rests with the plaintiff.  As Mr Brett very fairly and properly stated during closing addresses, the material in relation to the question of economic loss is somewhat limited.  He stated that he would have preferred to have had a clear vocational assessment, but he did not have it.  As he said in opening in relation to economic loss, the case is one where the plaintiff cannot get back into anything that constitutes suitable employment, as opposed to being a “percentage” case.  There is no argument with the proposition that the plaintiff has been receiving medical certificates which indicate that he is fit for suitable employment.  There are no figures put before me which would indicate with any clarity that suitable employment would produce a loss of income of 40 per cent or greater.  In my opinion, the lack of accurate or persuasive material puts the plaintiff effectively in an “all or nothing” situation.  This was virtually acknowledged.  He is fit for suitable employment.  He is carrying out what could be described as regular work duties, even if he is not being paid for them.  The required loss of earning capacity has not been established.

59In summary, the plaintiff’s application in respect of loss of earning capacity is unsuccessful.  He has failed to discharge the burden of proof.

(b)    Pain and suffering

60In my opinion, the plaintiff has discharged the burden of proof in relation to pain and suffering.  I have come to that conclusion for the following reasons, which are not set out in order of importance or significance:

(i)In the history given by the plaintiff to Dr Kostos, examining on behalf of the defendant and reporting on 29 July 2019, the plaintiff stated that he was in constant pain around the radial aspect of his left wrist.  Such pain had always been there since the work accident.  The pain was aggravated by any activities requiring a forceful grip.  Associate Professor Behan referred to the plaintiff’s need for chronic pain management.  Dr Blombery took a history of the plaintiff having ongoing pain in the left hand and wrist which was present all the time, rating on average 4/10, increasing to 10/10 if he used the hand.  It is to be remembered that Dr Blombery expressed the opinion that there was no exaggerated pain behaviour.  Mr Thomas Robbins , examining on behalf of the defendant, thought that the plaintiff’s pain and tenderness seemed genuine.  The plaintiff complained to him that his pain was not getting better.  In his affidavit of 9 June 2020, the plaintiff swore that he was suffering from pain and restricted usage of his left arm, which remained weak and not as flexible.  He swore that the pain increased when he used his hand and anything that required a bit more force caused an increase in such pain.  He swore that he suffered from constant left wrist pain and that the use of tools and the like hurt a lot.  Pain of this constancy and nature is an important factor.

(ii)Motor vehicles, and the use and maintenance thereof prior to the accident, played a central role in the plaintiff’s life.  He has owned a number of vehicles and, as at the time of swearing his affidavit of 9 June 2020, still owned three vehicles.  He has had a particular interest in Holden Torana cars, their restoration and maintenance.  The restoration of one vehicle had to be completed by friends as he could no longer do this on his own.  His major project was what he has described as “a classic LX Torana” that he could not restore and again had to rely on friends to do the work.  It is to be borne in mind that the injury is to his dominant hand.  The Medical Panel also noted that the plaintiff had bought a car for restoration, but had not been able to work on it because of his left hand and wrist pain.  The effective loss of a hobby and pastime in which he was keenly involved is a matter of importance, particularly when his working life has also been centred upon motor vehicles.

(iii)Associate Professor Behan referred to “the severe effects on the plaintiff’s domestic lifestyle, bearing in mind that he is left-handed”.  Dr Tony Kostos, examining on behalf of the defendant, apart from noting that the plaintiff was in constant pain around the radial aspect of the left wrist, added that the pain was aggravated by any activities requiring a forceful grip and this was compounded by the reduction in grip strength.

(iv)In relation to grip strength, Dr Kostos noted that the plaintiff’s grip strength on the right was 35 kg, and on the left, 16 kg.  The Medical Panel noted a loss of grip strength similar to that found by Dr Kostos.  Bearing in mind that it is the plaintiff’s dominant arm that is being assessed, such a loss of grip strength in one whose daily activities included a frequent use of the hands is an important loss.

(v)There has also been interference with the plaintiff’s everyday activities.  For example, the plaintiff used to enjoy taking his family camping and engaging in outdoor activities.  The plaintiff has a reduced capacity to do such things as cutting and splitting firewood and the like.  His eldest son is also a car enthusiast and has been studying performance mechanics.  The plaintiff is not able to assist his son with some of the practical tasks and engine re‑builds that are involved and he has described this in his original affidavit as being a major loss to him.

(vi)The plaintiff has asserted in his earlier affidavit that he is of the belief that the injury and the resultant loss of earning had contributed to a split‑up with his wife, from whom he is now separated.  This was not a proposition which received a great deal of attention, if any, from either counsel.  It  remains an assertion to which the plaintiff has sworn.  In his more recent affidavit, the plaintiff referred to the fact that he still had a family to support and responsibilities.  Being without a proper income had been “pretty tough”.  There is no direct reference to the matrimonial difficulties. 

When all of the above is taken into account, the plaintiff has discharged the burden of proof in relation to pain and suffering.    Leave is granted accordingly.

Conclusion

61The plaintiff has failed to discharge the burden of proof in relation to loss of earning capacity.  He has discharged the burden of proof in relation to pain and suffering.  I shall hear the parties as to any further orders that are required.