Jamili v Victorian WorkCover Authority
[2023] VCC 2066
•17 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-00331
| YAHYA JAMILI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 5 September 2023 | |
DATE OF JUDGMENT: | 17 November 2023 | |
CASE MAY BE CITED AS: | Jamili v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2066 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the left wrist – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Philippiadis v Transport Accident Commission [2016] VSCA 1; Hettiarachchi v Transport Accident Commission [2023] VSCA 27; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109; Davidson v Transport Accident Commission [2015] VSCA 12; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; TTB SMS Pty Ltd v Reading [2020] VSCA 203
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti KC Mr S Carson | Arnold Thomas & Becker |
| For the Defendant | Mr L Howe | TG Legal + Technology |
HER HONOUR:
Introduction
1Mr Yahya Jamili, the plaintiff, is a twenty-eight-year-old self-employed rideshare driver. He seeks leave to issue proceedings claiming pain and suffering damages for an injury to his left wrist pursuant to paragraph (a) of the definition of “serious injury” in the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
2On 23 September 2019, the plaintiff was on a two-metre A-frame ladder during his employment with RC Professional Tiling Pty Ltd (“the employer”), when the ladder moved, and he fell to the ground (“the incident”). The plaintiff suffered a fracture to his left wrist in the incident. He was twenty-four years of age at the time.
3There was no dispute that the plaintiff suffered a compensable injury to his left wrist in the incident.
4The defendant contested the proceeding on the issue of “range”.
5The legal principles are well known and were not in issue.
6The plaintiff was the only witness to give viva voce evidence.
7Unusually, the parties jointly tendered the plaintiff’s affidavits, various medical reports, and some GP clinical records.
8For the reasons that follow, I find that the plaintiff has not satisfied his onus of establishing that the permanent impairment consequences of his left wrist injury can be fairly described as more than “significant” or “marked” and “at least very considerable” when compared to the range of possible impairments.
Background
9The matters that follow are, I believe, uncontroversial. In so far as any part is contested, these represent my findings save where otherwise indicated.
10The plaintiff was born and brought up in Afghanistan.
11The plaintiff is right-hand dominant.
12The plaintiff completed high school and studied Dari literature at university. He graduated from university when he was about twenty-one years of age. He did not work between then and 2018 when he migrated to Australia, aged twenty-three years.
13After arriving in Australia, the plaintiff initially lived in Brisbane, where he studied English at TAFE and worked as a painter. He said it was a job he “totally hated” because it involved a lot of dust.[1]
[1]Transcript (“T”) 47
14The plaintiff speaks conversational English,[2] but made use of a Dari interpreter for swearing his affidavits, attending some medico-legal examinations, and giving evidence.
[2]Further Amended Joint Court Book (“JCB”) 15
15In 2019, the plaintiff moved to Melbourne. He obtained employment in his cousin’s tiling business. The plaintiff worked for his cousin for approximately six months, before obtaining a job as a labourer/tiler with the employer a week or so before the incident.
16Following the incident, the plaintiff attended the Alfred Hospital. Relevantly for this application, an X-ray and CT scan were undertaken of the plaintiff’s left wrist. The CT scan was reported to show:[3]
“… a comminuted intra-articular fracture through the distal radius with mildly displaced fracture fragments on the dorsal aspect. Mild depression of the articular surface is present. Approximately 3.5 mm separation is present at the articular surface.
Small comminuted fracture is seen at the tip of the ulnar styloid process. Radio-carpal joint is enlocated.”
[3]JCB 258
17A plaster cast was applied to the plaintiff’s left wrist.
18Further imaging was undertaken of the plaintiff’s left wrist on 30 September 2019, 10 October 2019, 7 November 2019, and 19 December 2019 to review progress. The imaging reportedly showed that the distal radius fracture was healing but the ulnar styloid process fracture fragments were not united.[4]
[4]JCB 255-257
19On 6 October 2019, the plaintiff consulted a general practitioner (“GP”), Dr Bahareh Pourjafari, regarding his left wrist injury. He was prescribed Brufen and Endone for pain.
20In November 2019, the plaintiff’s GP, Dr Ehsan Vaziri, referred the plaintiff to a physiotherapist for treatment which continued for several months.
21By 22 November 2019, the plaintiff’s GP had ceased prescribing strong analgesia for the plaintiff’s wrist pain. The plaintiff was advised to take Nurofen as required.[5]
[5]JCB 67
22Between November 2019 and July 2020, the plaintiff attended Dr Vaziri on several occasions complaining of pain in his left wrist.
23On 17 April 2020, Dr Vaziri ordered an MRI scan of the plaintiff’s left wrist.
24On 15 May 2020, the MRI scan was undertaken and was reported to show:[6]
“Healed fracture distal radius intra articular. Mild persistent deformity with cortical irregularity and nominal cartilage loss.
Degenerative change with small tear triangular fibrocartilage scarring of the foveal and ulnar attachment.
Minimal extensor carpi ulnaris tenosynovitis.
Tiny ganglion dorsum of the wrist at the lunate/capitate articulation with no underlying ligament injury identified.”
[6]JCB 261
25On 23 July 2020, Dr Vaziri referred the plaintiff to Mr Jason Harvey, orthopaedic surgeon, for review, as the plaintiff complained of continuing left wrist pain.
26In August 2020, the plaintiff reported to his GP that his left wrist pain was worse in the cold weather. He was once again prescribed Endone by his GP.
27However, within five days, the plaintiff advised his GP that he was concerned about taking Endone and becoming addicted to it. Dr Vaziri noted that he explained to the plaintiff that there was a risk of addiction, but it was fine to take it occasionally when the pain was major and interfering with sleep.[7]
[7]JCB 74
28The last prescription of Endone recorded in the clinical records was on 17 August 2020.[8]
[8]JCB 74
29On 21 September 2020, the plaintiff saw Mr Harvey. Mr Harvey noted that the plaintiff complained of pain on both the radial and ulnar side of his left wrist. He was having symptoms when driving and intermittently at night-time. He was seeing a physiotherapist weekly.
30Mr Harvey recommended the plaintiff have an ultrasound-guided steroid injection into the left wrist and said that the plaintiff could return to work.
31On 21 October 2020, the plaintiff had the recommended steroid injection.[9] Mr Harvey noted that following the injection the plaintiff reported excellent improvement in his symptoms and had minimal symptoms in the wrist thereafter.[10]
[9]JCB 78
[10]JCB 28
32The plaintiff said he had a second ultrasound-guided injection into his left wrist which also provided several months of relief of symptoms.[11]
[11]T21
33In March and April 2021, the plaintiff reported to his GP that he had no more wrist pain, movement of his wrist was good, and he could perform lifting without pain.[12]
[12]JCB 81
34In the 12-month period between May 2021 and 5 May 2022, the plaintiff attended Dr Vaziri on three occasions for other ailments and was not noted to mention his left wrist condition.[13] He was not prescribed analgesia for his wrist condition in that period.
[13]JCB 81-83
35On 16 May 2022, the plaintiff saw Dr Vaziri to review the results of a recent ECG and Urea breath test. The clinical notes relevantly record the following in relation to the plaintiff’s left wrist:[14]
[14]JCB 83
“… his L wrist pain was still ongoing (that what he is reporting this now)
There is a clicking sound in his L wrist.
Examination:
…
Movements of wrist are good
There is clicking sound at his L wrist movements.”
36Dr Vaziri prescribed Voltaren and ordered an X-ray of the plaintiff’s left wrist. There was no evidence as to whether that X-ray was undertaken.
37The parties did not tender any imaging of the plaintiff’s left wrist undertaken after May 2020.
38On 1 July 2022, the plaintiff consulted Dr Vaziri regarding his left wrist pain. The clinical note recorded the following:[15]
[15]JCB 85
“He is here to complain about his L wrist pain
His pain comes back when he lift heavy
His pain is still existing but not sure when started
He was much better after CS injection but recently the pain is come back
There is clicking when he does certain movements in his L wrist
We had a long discussion about his Return to work cover but he waiting for a meeting with a GP from Allianz
Examination:
Movements are good
Mild pain with movements (2/10)Lifting more than 15kg makes him pain
Reason for visit:
Wrist pain
Advice and listening
Management
He has had appointment with his lawyer and insurance company
As he was in pain last night 6/10 we discussed start of NSAIDs
Actions:
Panamax Co 500mg; 8mg tablet ceased.
Prescription printed: Celebrex 200mg capsule 1 every 8 hours after meals as directed. Take for 5 days.”
39The plaintiff has consulted Dr Vaziri several times since July 2022 regarding his left wrist.
40In August 2022, he was prescribed Panamax for left wrist pain. In November 2022, January 2023, and May 2023 the plaintiff was prescribed Voltaren for his left wrist pain. On 22 June 2023, Dr Vaziri prescribed Panamax for left wrist pain.
41On 22 May 2023, Dr Vaziri referred the plaintiff for a further MRI of his left wrist.[16] There was no evidence as to whether this MRI had been undertaken or not.
[16]JCB 89
42The plaintiff did not return to work for the employer in any capacity following the incident.
43The evidence regarding the work the plaintiff has performed since 2020 was vague.
44In his first affidavit the plaintiff said:[17]
“19. I instead found some work with MJ Lines Industrial Cleaning in 2021 and 2022 and also briefly did some factory work.”
[17]JCB 8
45Whilst the evidence was unclear as to timing, it appears that the plaintiff started working as a cleaner in a chicken factory in late 2020/early 2021.[18] His work duties involved sweeping, mopping, and wiping. Initially he worked four hours a day, five days a week. This increased to five hours a day, five days a week. In evidence, the plaintiff said that he had this job for about two years.[19] The plaintiff said that the work was not heavy.
[18]T27
[19]T28
46The plaintiff appears to have stopped working at the chicken factory in mid-2022. Again, the evidence was unclear as to timing, but it appears that this occurred in mid-2022 as the GP clinical notes record the plaintiff changing his work in a visit on 17 June 2022.[20]
[20]JCB 84
47Since leaving the chicken factory the plaintiff has worked as an Uber driver, initially delivering Uber eats, and more recently performing rideshare work. The plaintiff said that he usually worked four to five hours per day, and on rare occasions up to seven hours. He said that he generally works approximately 25 hours each week.
48From the time the plaintiff moved to Melbourne until recently, he lived with his mother (who has disabilities and requires care and assistance), his widowed sister (who also has a disability), and her five young children in Cranbourne East.
49The plaintiff said that he is about to marry and accordingly he has left his sister’s home as is customary in his culture.
50He now lives in a property in Cranbourne North with his mother for whom he provides care and assistance.
The Plaintiff’s claimed impairment consequences
51In his first affidavit, sworn on 27 September 2022, the plaintiff described the impairment consequences of his left wrist injury as follows:
“17. As things have since turned out, I have not been able to get back to my old job. I wouldn’t be able to cope with tiling work bearing in mind the state of my left hand. I wouldn’t have the grip strength required or the endurance to use the left hand for very long.
18. The inability to get back to tiling work has been a major blow to me. I had longer-term intentions of starting my own tiling business. I also had goals of studying English and then studying sound editing. This was something that I had been interested in as a younger man while back in Afghanistan.
…
20. More recently I have been doing some ‘Uber Eats’ food delivery driving. I have been picking up about 20 to 25 hours of work each week. I find that I can avoid using the left hand for most of the time and thereby keep the pain in my left wrist under some control. I am happy to have a source of income but it is not a job that I ever wanted and is not a job that I like.
21. As for the pain these days, it is always present. It is just a matter of how strong that pain might be from time to time. It takes very little pressure on the wrist to set off strong pain. I experience a flare up of pain frequently as a result.
…
24. As for the wrist and hand pain, I try to put up with the pain as much as I can. However, I will get to a point where I simply cannot put up with the pain and will resort to taking Endone tablets 2 or 3 times each week on average.”
52In his second affidavit, sworn on 28 August 2023, the plaintiff deposed to the following impairment consequences:
“4. The pain in the wrist is still always there. Occasionally the pain can be mild. However, as I said in my previous affidavit, it does not take very much force or pressure on the left hand or wrist to set off significant pain. I had hoped that I would learn to live with this, but it is still a major problem for me almost every day. I find that I am flaring up pain to a significant level no matter how careful I try to be.
5. It isn’t just force or pressure that is the problem. Very light activity can become painful if I do it for long enough. For example, simply driving a car will eventually become painful with minimal force being placed on the left wrist and hand.
...
8. I have been experiencing stronger pain in the wrist and hand in recent times as I am preparing to move out of my current address. I am going to be married soon and am starting to pack things up so that I will be ready to move. I haven’t done a lot of lifting, but the extra effort in packing some things up has triggered significant pain on several occasions and has really reminded me of how bad the wrist still is.
9. As for tablets for the left wrist and hand pain, I try to put up with the pain as much as I can. I was advised that I shouldn’t be taking strong tablets when driving, which has been a major issue for me bearing in mind that I have been Uber driving to make a living.
10. Having said the above, after I have finished driving and on other days when I am not driving, I will take Panamax of an evening. This helps to take the strongest edge from the pain and lets me get to sleep.
11. As for the Uber work mentioned above, I changed cars early this year. I had a manual transmission car, which meant that I was relying on the left wrist and hand when changing gears. This would eventually become painful. I replaced the manual transmission car with an automatic car in order to avoid relying on the left hand so much.
12. I also started doing Uber passenger driving as opposed to the Uber eats driving that I was doing before. I am still driving anywhere from about 20 to 25 hours per week. This will usually be spread over 3 or 4 days each week. I find that I need to rest the wrist after a shift, as pain will have built up during my shift. I value my days off for the same reason.
13. It is frustrating to be limited to the above work. It is not a job that I ever saw myself doing or a job that I wanted. As I said in my previous affidavit, I had intentions of starting up a tiling business in the shorter term and perhaps even getting into sound editing one day.
14. It is clear to me that I will never get back to tiling or any similar hands-on work. The left wrist and hand simply wouldn’t be up to repetitive work over a working day. I lack strength and endurance when it comes to using the left hand and/or wrist for manual tasks.
15. As for sound editing, I fear that I have probably lost my chance. As matters currently stand, I am just getting by financially with the work that I have. Further study is going to be unaffordable with my limited income, and I would struggle to devote the time to it anyway.”
53The plaintiff’s third affidavit was sworn three days later. The plaintiff deposed to having moved home. He said as follows regarding his impairment consequences:
“3. I am working as a Didi driver averaging about 25 hours per week, but I find that driving for lengthy periods causes increase in my left wrist symptoms because of the constant gripping of the steering wheel and having to constantly turn it in either direction. Whereas I was taking over the counter medication for some time, for some months now, I have been taking Codeine Phosphate, a prescription medication. I take it regularly at night to relieve pain. I do not take it during the day because of my work as a driver.
4. Prior to moving to the above address, I was living with my sister who is a widow and her five children. My sister lost her leg because of the war in Afghanistan, and I was performing many domestic activities to assist in running the household, but I was limited because of my left wrist injury, and performing those activities the pain increased. I am due to see my GP in 10 days’ time for a renewal of the prescription for the medication.
5. Whereas I used to attend the gym almost every day after work and work out with weights, I have not been to the gym since I suffered the injury. I also used to play indoor soccer and I played as a goalkeeper, but I have been unable to continue with soccer, because I cannot catch the ball when it is kicked with force, and I also have to dive in order to save goals. I am not able to play further up the field because there are still occasions when players get knocked over and I cannot take the risk because of my wrist. I was playing at various indoor places including Knox, Doveton and Keysborough, two nights per week and sometimes three nights. I loved playing soccer as I have been playing since childhood.
6. Whilst I was learning the trade of tiling, it was always my intention once I had mastered the trade, to establish my own business. Before doing so, I wanted to get as much experience as possible. Because of the injury to my wrist, I cannot work in employment as a tiler, and I have not been able to pursue my dream of being self-employed and having my own business.
7. I should also add that in the last six months, I believe the symptoms in my wrist have become worse which has resulted in me taking the stronger prescription medication and I have regular cracking in my wrist which has become more frequent.”
The Plaintiff as a witness
54The defendant submitted the plaintiff was not a reliable witness. Mr Howe, who appeared for the defendant, submitted that the plaintiff’s evidence regarding his prescribed medications, soccer/futsal playing, and return to work was contradictory and confused and, at times, deliberately misleading. It was said that the Court ought to prefer the objective evidence to the plaintiff’s account.
55Mr Monti KC, who appeared with Mr Carson, for the plaintiff, submitted that the plaintiff’s evidence regarding his impairments ought to be accepted. It was said that objective evidence supported the plaintiff’s account of his impairment consequences.[21]
[21] T75
Medication use
56The defendant submitted that the plaintiff gave unreliable evidence about his medication use.
57In his viva voce evidence, the plaintiff said that he was prescribed Endone following the incident and stopped being prescribed that medication about a year later.[22]
[22]T10
58The last prescription the plaintiff received for Endone for wrist pain was on 17 August 2020.[23]
[23]JCB 74
59In paragraph 24 of his first affidavit, sworn on 27 September 2022, the plaintiff deposed as follows:[24]
“As for the wrist and hand pain, I try to put up with the pain as much as I can. However, I will get to a point where I simply cannot put up with the pain and will resort to taking Endone tablets 2 or 3 times each week on average.”
[24]JCB 9-10
60When the plaintiff was asked about the above paragraph during cross-examination, he agreed that the evidence that he was taking Endone two or three times each week as at September 2022 was incorrect.[25]
[25]T11
61The plaintiff then said that he might still have had Endone tablets left at home that he had not taken.[26]
[26] T11
62The plaintiff then said he did not remember the dates he took each medication and that his English was not good.[27]
[27] T11-13
63Finally, the plaintiff said that when he was asked which medication he was taking in September 2022, he could not remember the name of it, but did remember the name Endone so that is what he said.[28]
[28] T13
64I note in November 2022, that the plaintiff told Dr Robbins that he was prescribed 5mg Endone four times each week.[29] The plaintiff did not deny that he gave that history to Dr Robbins but said he did so because he could not remember the name of the medication he was taking.[30]
[29]JCB 37
[30]T16
65It was submitted on behalf of the plaintiff that language difficulties aside, it was no wonder the plaintiff was unclear about his medication use, as the prescriptions varied so much. I am unable to accept that submission as it does not account for the changing responses the plaintiff offered on the issue during his viva voce evidence.
66I found the plaintiff’s shifting evidence on this matter to be very unsatisfactory. The different explanations given for the erroneous account in paragraph 24 of the plaintiff’s first affidavit cause me to doubt the plaintiff’s account of the severity of his pain and what he does about that pain.
Soccer/futsal
67The defendant submitted that the plaintiff’s account of his involvement in playing soccer/futsal since the incident was contradicted by the clinical records.
68The plaintiff’s evidence was that he had only played soccer/futsal on one occasion since the incident but could not recall how long ago that was.
69The clinical records of the plaintiff’s GP Dr Vaziri contained two references to the plaintiff playing soccer/futsal following the incident:
(a) On 11 February 2020, the plaintiff consulted Dr Vaziri about a cough. The clinical note relevantly recorded:[31]
[31] JCB 69
“… he does exercise as doing futsal.”
(b) On 16 May 2022, the plaintiff attended Dr Vaziri complaining of chest pain. The clinical note relevantly recorded:[32]
“He is here for the review
His chest pain is much better after keep playing soccer
...
Also, he has had a R shoulder and R wrist injury after accident in soccer
8/10 before and now is better both pains are now 5/10
He could not sleep due to pain but the pain now is better
His L wrist pain was still ongoing (that what he is reporting this now)There is a clicking sound in his L wrist”.
[32] JCB 83
70When the February 2020 clinical record was put to the plaintiff during cross-examination, he initially said he was not sure if he was playing soccer/futsal at the time because he could not remember dates. He then said that he did not try to play soccer/futsal that soon after his injury.[33]
[33]T35
71When the May 2022 clinical note was put to the plaintiff during cross-examination, he thought that was the occasion when he tried to play soccer/futsal but had to leave the ground.[34]
[34] T36
72He denied having right shoulder and right wrist pain, and said it was his left shoulder and left wrist.[35]
[35]T36
73The plaintiff then said that he had a problem with his right wrist “because of too much work”, and when further pressed on this issue said:[36]
“I remember I’ve told my doctor that my wrist and my right shoulder are having pain, but I don’t remember if I said as a result of soccer, or – same spot as the left one, the right wrist and the right shoulder was having pain, because I was doing a lot of activities with my right. I said that once to my doctor.”
[36]T37
74The defendant submitted that the plaintiff’s evidence regarding the resumption of playing soccer/futsal was “entirely unbelievable”.[37]
[37] T59
75I am conscious that the clinical records of a GP must be treated with caution.[38] The records are made for the purpose of assessing and treating the patient.
[38]Philippiadis v Transport Accident Commission [2016] VSCA 1 at [104]; Hettiarachchi v Transport Accident Commission [2023] VSCA 27
76I note and accept the plaintiff’s evidence that his first language is Dari, and his GP speaks Persian. Whilst the languages are similar, there are differences in vocabulary.[39] However, the plaintiff did not state that he had difficulty understanding his GP, or vice versa. Further, a perusal of the detail contained in the clinical records tendered does not support a contention that there were communication difficulties between the plaintiff and his GP.[40] The report tendered from Dr Vaziri does not refer to any such difficulties.
[39]T50
[40] JCB 58-90
77I further note that the plaintiff attended various medical practitioners without requiring the assistance of an interpreter.[41]
[41] JCB 19 and JCB 28
78I am not persuaded that language difficulties explain away the references to soccer/futsal in the clinical records.
79I find that the plaintiff told his GP in February 2020 that soccer/futsal was his means of exercise, but I am not persuaded that the plaintiff had resumed playing soccer/futsal by that time.
80I find that on 16 May 2022, the plaintiff told his GP that he had been playing soccer/futsal. He did so because he was playing soccer/futsal again by this time. I find that he suffered a right shoulder and right wrist injury whilst playing and had to come off the pitch because of it. I further find that the plaintiff told his GP that soccer/futsal playing was helping his chest pain.
81I am not persuaded that the plaintiff has only played half of a game of soccer/futsal because of his left wrist impairment, or that he has ceased playing soccer/futsal by reason of his left wrist impairment.
Return to work
82The defendant submitted that the plaintiff was offered suitable employment by the employer, which his doctors supported, but the plaintiff refused to attempt a return to work.
83The plaintiff said that he did not feel able to return to work because of his pain.[42]
[42]JCB 8 and JCB 14
84On 12 October 2020, the plaintiff discussed his return to work with his GP, Dr Vaziri. The clinical note of this attendance recorded that the plaintiff was not happy to return to work as he felt he was in pain.[43]
[43]JCB 77
85Dr Vaziri noted that he explained to the plaintiff that he would not be expected to perform pre-injury duties, that he could rest as needed and not lift more than 15 kilograms with his left hand. Dr Vaziri noted that the plaintiff was not agreeable to returning to work with the employer.
86When asked about this during cross-examination, the plaintiff said that he did not want to return to work with the employer as he was unhappy with the employer regarding delays in making payments to him.[44] I accept that this was the primary reason the plaintiff did not return to work with the employer.
[44]T26-27
87I find that the plaintiff’s evidence in his affidavits, that he was unable to attempt a return to work performing suitable duties because of left wrist pain was not the true reason for that decision.
Conclusions regarding the Plaintiff’s reliability
88As has been said many times, the credit and reliability of a plaintiff is often of great importance in applications of the present kind.
89My impression of the plaintiff was that he is an intelligent and ambitious man.
90As outlined, I found his evidence to be unsatisfactory on several important issues.
91Considering the above matters, I have reservations about the reliability of the plaintiff’s evidence.
92In the circumstances, I treat the plaintiff’s account with circumspection and prefer the objective evidence of the plaintiff’s left wrist impairment and consequences where it conflicts with his evidence.
The lay evidence
93The plaintiff tendered a short affidavit sworn by his sister, Latifa Jamili, on 28 August 2023. The defendant did not seek to cross-examine Ms Jamili.
94Ms Jamili’s affidavit was generally supportive of the plaintiff’s claimed impairment consequences. However, I note that she did not refer to the chicken factory cleaning work the plaintiff performed following the incident. She did not refer to the nature or extent of domestic activities he undertook whilst he lived with her, or the assistance the plaintiff gave in the care of her young children. Ms Jamili did not mention the plaintiff’s soccer playing or gym activities.
95Further, whilst Ms Jamili was not cross-examined, her affidavit needs to be considered in light of the findings I have made about the plaintiff’s reliability.[45]
[45]Siddel-Whipp v Transport Accident Commission [2020] VSCA 109, at [89]-[90]
The medical evidence
Treating practitioners
Dr Ehsan Vaziri, GP
96One report was tendered from Dr Vaziri dated 19 May 2023. The parties also tendered a certificate of capacity completed by Dr Vaziri on 31 July 2020, and extracts of the clinical records of First Health Medical Centre – Casey, dated 25 August 2023.
97Dr Vaziri has treated the plaintiff since October 2019.
98The certificate of capacity dated 31 July 2020, stated that the plaintiff had a capacity for suitable employment from 31 July 2020. Dr Vaziri noted that the plaintiff required modifications in reaching above shoulder, using his left hand, and lifting. He noted that the plaintiff ought to avoid lifting more than 20 kilograms with his left hand.
99In his report of 19 May 2023, Dr Vaziri noted that the plaintiff was “still in pain and has not fully recovered” from his left wrist injury. He noted that the plaintiff reported pain at a level of five out of ten with lifting more than 5 kilograms.
100Dr Vaziri opined that the plaintiff may have developed chronic pain. He opined that there was a need for further investigation by way of MRI scan and referral for a further corticosteroid injection. Dr Vaziri said that the plaintiff’s occasional pain with driving was “manageable” and had not affected his safety as a driver.
Mr Jason Harvey, orthopaedic surgeon (hand, wrist, and elbow)
101Two reports were tendered from Mr Harvey dated 21 September 2020 and 24 April 2023.
102Mr Harvey examined the plaintiff on 21 September 2020.
103Mr Harvey did not note the presence or need for an interpreter.
104On examination in September 2020 Mr Harvey found as follows:
“... he had mild wrist swelling with a range of motion of 60° of flexion, 60° of extension and full pronation and full supination, radial and ulnar deviation. He had mild radioscaphoid tenderness to palpation with tenderness in the foveal and ulnar snuffbox region of the wrist. His neurological function was intact on both sensory and motor testing. He had pain with ulnar deviation and loading of the wrist in supination but no distal radioulnar joint instability. He demonstrated no scapholunate instability. His grip strength was approximately 38kg compared to 46kg on the right. He had an MRI which revealed a healed radial styloid fracture with a mild intra-articular step with a small cartilage defect. He also had evidence of TFCC tearing centrally with some scarring in the peripheral regions of the TFCC.”
105Mr Harvey noted that the plaintiff was a tiler by occupation.
106In answer to questions posed by the plaintiff’s solicitors, Mr Harvey opined as follows:
“Question 2: Diagnosis is left healed radial styloid fracture with a TFCC tear. The prognosis for these injuries is excellent. He had near full range of motion, minimal grip strength reduction. The likelihood of significant progression of a minor TFCC tear is unlikely and unlikely to cause long-term deficit or detriment. His wrist fracture was intra-articular therefore he is likely to develop radiographic changes of degeneration however this does not necessarily correlate with the development of symptoms.
…
Question 6: I would not expect his TFCC tear to significantly change over time and I would expect that there is no permanent deficit from this.
Question 7: I would not recommend any further treatment or investigations.
Question 8: I do not believe it has significantly affected his normal occupation or his social recreational domestic activities from my history and examination on 21st September [2020].
Question 9: I do not have any information that suggests that it is significantly affecting his ability to perform his occupation.”
Medico-legal practitioners
Dr Graeme Doig, orthopaedic surgeon
107A medico-legal report was tendered from Dr Doig dated 8 August 2022. Dr Doig conducted an impairment assessment at the defendant’s request. He examined the plaintiff on 20 July 2022.
108Dr Doig noted that an interpreter was present for this examination.
109By way of history, Dr Doig noted the plaintiff suffered a comminuted, intra-articular fracture of the distal radius of his non-dominant left wrist.
110Dr Doig noted that the plaintiff developed triggering of the left little finger. That injury was not relied upon in this application.[46]
[46]T6
111Dr Doig further noted as follows:
“He was referred to a hand surgeon and proceeded to undergo arthroscopic surgery around the middle of 2020. Debridement was performed. Mr Jamili believes this was of no benefit.”
112On examination, Dr Doig noted “[t]he arthroscopic portal scars had healed well on the dorsal aspect of the wrist where he remained locally tender”.
113The reference to surgery is a curious feature of Dr Doig’s report, as both parties agreed that the plaintiff did not undergo any form of surgery to his left wrist following the incident. During cross-examination, the plaintiff was not asked whether he had given the history of surgery to Dr Doig.
114Dr Doig noted that the May 2020 MRI scan revealed a healed, intra-articular fracture of the distal radius with secondary degeneration and a degenerative triangular fibrocartilage.
115Dr Doig noted that the plaintiff complained of pain and stiffness at the left wrist with difficulty lifting any weight.
116Dr Doig noted the range of motion found on examination and described it as “slightly restricted” movement at the left wrist. He opined that there was no calor, erythema or effusion, and no neurological deficit of the upper limb.
Dr Philip Sheard, orthopaedic surgeon
117One report was tendered from Dr Sheard, dated 2 May 2023, who examined the plaintiff for medico-legal purposes at the request of the plaintiff’s solicitors that day.
118Dr Sheard did not note the presence or need for an interpreter.
119Dr Sheard recorded the following history from the plaintiff:
“... he describes he did attend his general practitioner and was given Endone and has had two to three injections in his wrist. At present time, he describes pain over the dorsal aspect and styloid of his left wrist, which comes and goes but is constant in cold weather and worse when using it. He describes a grabbing type pain with lifting in cold weather and has pain when driving for too long. He describes no swelling and that his range of movement is full and unrestricted.”
120Dr Sheard noted that the plaintiff told him that he began Uber driving in September 2021 “at five hours a day seven days a week”. Dr Sheard also noted the plaintiff told him that he finished school “with no qualifications”.
121On examination, Dr Sheard noted there was no muscle wasting of the left wrist and no deformity. The plaintiff was tender over the dorsal ulnar aspect over the TFCC. Extension was to 50 degrees, flexion to 55 degrees, ulnar deviation to 40 degrees and radial deviation to 14 degrees. The scapholunate ligaments were intact.
122Dr Sheard reviewed various materials provided to him. He noted that Mr Harvey’s clinical records included the following note:
“Discussed the operative and nonoperative options, recommend ultrasound-guided steroid injection, review as needed. It does not settle in for wrist arthroscopy. Notes that he would have capacity to perform all tasks other than carrying of heavy box of tiles weighing 28 to 30 kg. Notes if he does not reach his ability, could consider surgical intervention such as wrist arthroscopy to improve his chances of achieving that.”
123Dr Sheard noted that the plaintiff continued to have pain in his left wrist. He was able to perform all activities of daily living although they could cause pain and he reported difficulty lifting more than 15 kilograms and lifting his niece and nephew and had not returned to the gym.
124Dr Sheard is an orthopaedic surgeon, not a specialist hand surgeon.
Mr Thomas Robbins, hand plastic and reconstructive surgeon
125Two reports were tendered from Mr Robbins dated 2 December 2022 and 19 July 2023.
126Mr Robbins examined the plaintiff for medico-legal purposes on 24 November 2022 and 13 July 2023. A Dari interpreter attended on each occasion.
127In his first report, Mr Robbins noted the MRI of 15 May 2020 “confirmed an undisplaced healing/healed fracture of the right distal radius, a small tear in the TFCC ligament (not considered relevant) and an irregular articular surface.”
128On examination, Mr Robbins found a slight loss of flexion and extension of the left wrist, but said that he considered that the plaintiff had essentially normal function. The plaintiff complained of continuing pain, which Mr Robbins described as “unusual”. He noted the plaintiff complained of pain over the distal ulnar area, but it was not obviously tender on examination. Mr Robbins concluded the plaintiff was exaggerating his difficulties.
129In his second report, Mr Robbins noted the plaintiff’s complaints as follows:
“He presently complains of pain, particularly in the cold and on movement of his wrist. He cannot name his present medication but says he takes it at night.”
130Mr Robbins noted the plaintiff used his left hand freely during the interview. He complained of pain in the side of his wrist over the ulnar side at the ulnar styloid. Mr Robbins opined that the complaint was not of pain to the radial side, which was the site of the fracture. Mr Robbins found only slight tenderness in the area complained of. Mr Robbins considered the plaintiff’s wrist movements to be normal.
131Mr Robbins concluded the plaintiff’s condition was unchanged since his prior examination, and that the plaintiff had physically recovered. Whilst he had perhaps a 10-degree loss of dorsiflexion of the left wrist, it was essentially normal.
132Mr Robbins opined that the plaintiff had made a good physical recovery and his problem was not physical.
Conclusions regarding the medical evidence
133There was little controversy in the medical evidence regarding the plaintiff’s injury and progress. That is, that the plaintiff suffered an intra-articular mildly displaced distal radial fracture and a minimally displaced ulnar styloid fracture, and a soft tissue injury to his left wrist, treated conservatively.
134There were some variations in findings of the range of movement in the plaintiff’s left wrist. Mr Harvey found near full range of movement in September 2020. Dr Doig found more restricted active range of motion in August 2022 but still described it as only “slightly restricted”. Dr Sheard elicited more movement than Dr Doig in May 2023. Mr Robbins found essentially normal function in November 2022 and essentially normal movement in July 2023.
135The plaintiff urged the Court to prefer the opinion of Dr Doig on the basis that he had considered the findings of the MRI scan performed in May 2020 in greater depth, and provided more comprehensive range of movement findings on clinical examination.
136Dr Doig is not a specialist hand surgeon. Further, he had an incorrect history of arthroscopic surgery, and appeared to note well-healed portal scarring on examination, in circumstances where the plaintiff has not undergone surgery for the claimed left wrist injury.
137The plaintiff submitted that the Court ought to reject the opinion of Mr Robbins as he did not acknowledge the full extent of the injury the plaintiff suffered and misquoted the findings of the MRI scan reported in May 2020.[47] I do not accept that submission. As a specialist hand surgeon, Mr Robbins is particularly well placed to interpret MRI scans and opine as to relevant findings.
[47]T83-85
138Further, it was submitted that Mr Robbins’ opinion that the plaintiff’s left wrist function was “essentially normal” was at odds with his stated findings of a 10 degree loss of flexion and a 10 degree loss of extension. Mr Monti KC submitted there was an absence of appropriate clinical examination by Mr Robbins. I do not accept that submission. Mr Robbins clearly performed two clinical examinations and described his findings. The minimal restrictions found on range of motion testing are appropriately described as “essentially normal”.
139I prefer the opinions of Mr Harvey and Mr Robbins. I do so because they are both specialist hand surgeons. Mr Robbins had the further benefit of examining the plaintiff on two occasions. Their opinions regarding the plaintiff’s injury and status are to similar effect over the period 2020 to 2023.
140I accept the examination findings of Mr Harvey and Mr Robbins that the plaintiff has a near normal range of motion in his left wrist.
141I accept the findings of Mr Robbins that there was only slight tenderness on physical examination. The location and extent of the ongoing pain described by the plaintiff is out of keeping with Mr Robbins’ objective findings.
142None of the medical opinions which I prefer suggest that the plaintiff is limited in his ability to work full-time in suitable employment.
143I find, consistent with the opinions of Mr Harvey and Mr Robbins, that the plaintiff can work as a tiler subject only to a lifting restriction of 28 kilograms with his left hand.
Impairment consequences
Pain
144I do not accept the plaintiff’s account of the level and extent of his ongoing pain and restriction.
145Based on the whole of the evidence, including the medical opinions I have preferred, I find that the plaintiff experiences occasional pain in his left wrist. The plaintiff currently requires Panamax infrequently for his left wrist condition, and otherwise requires Voltaren occasionally.
Work
146It became clear during re-examination that the plaintiff was primarily performing labouring work for the employer at the time of his injury.[48] He performed some limited tiling work.[49]
[48]T48
[49] T49
147Mr Monti KC placed significant emphasis upon the loss of the opportunity to work as a tiler, and to run his own tiling business in the future as a pain and suffering consequence.
148In reliance upon Davidson v Transport Accident Commission,[50] Mr Monti KC submitted that the plaintiff is entitled to claim, as a pain and suffering consequence, the loss of the opportunity to become a self-employed tiler because of his impairment if that prospect was more than speculative, and if his wrist impairment precluded that work option.
[50][2015] VSCA 12, at [30]
149Whilst the plaintiff seeks leave to claim pain and suffering damages only, an inability to engage in employment of a particular kind, such as employment that was previously enjoyed, is a matter that may properly be taken into account in assessing pain and suffering and loss of enjoyment of life.[51]
[51]Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326, at [35]
150In his affidavit sworn on 27 September 2022, the plaintiff deposed to the following regarding his work intentions:
“18. The inability to get back to tiling work has been a major blow to me. I had longer-term intentions of starting my own tiling business. I also had goals of studying English and then studying sound editing. This was something that I had been interested in as a younger man while back in Afghanistan.”
151In his further affidavit sworn on 28 August 2023, the plaintiff relevantly said:
“13. It is frustrating to be limited to the [Uber] work. It is not a job that I ever saw myself doing or a job that I wanted. As I said in my previous affidavit, I had intentions of starting up a tiling business in the shorter term and perhaps even getting into sound editing one day.
14. It is clear to me that I will never get back to tiling or any similar hands-on work. The left wrist and hand simply wouldn’t be up to repetitive work over a working day. I lack strength and endurance when it comes to using the left hand and/or wrist for manual tasks.
15. As for sound editing, I fear that I have probably lost my chance. As matters currently stand, I am just getting by financially with the work that I have. Further study is going to be unaffordable with my limited income, and I would struggle to devote the time to it anyway.”
152The plaintiff’s sister deposed as follows on this issue:[52]
“3. … I know it was his long-term plan to set up his own tiling or similar business. We have discussed on many occasions how he isn’t going to be able to do that now because of his wrist injury. I know that he is very disappointed about that.”
[52]JCB 17
Does the Plaintiff’s left wrist impairment prevent him working as a tiler?
153Given the medical evidence that I have preferred, and my findings regarding the plaintiff’s pain, I am not persuaded that the plaintiff is unable to work as a tiler. In particular I am not persuaded that a lifting restriction of 28 kilograms precludes the plaintiff from undertaking tiling work.
Were the prospects of the Plaintiff working as a tiler but for his injury more than merely speculative?
154The plaintiff worked as a tiler in his cousin’s business for six months. He did not explain why he left that employment.
155No affidavit was tendered from the plaintiff’s cousin regarding the plaintiff’s employment with him, or the reasons the plaintiff left.
156The plaintiff’s position with the employer was as a labourer/tiler. He was there for just a week before the incident.
157He has no formal qualifications as a tiler and was not undertaking any tiling-specific training or course at the time of his injury.
158The plaintiff’s experience in tiling was limited.
159I find that the prospect of the plaintiff working as a tiler, absent his injury, was more than merely speculative given he previously worked in that trade for his cousin, and the employer was a tiling business for whom the plaintiff did some tiling.
Is the Plaintiff unable to conduct a tiling or other business by reason of his left wrist injury?
160The plaintiff has no prior experience running a business in Afghanistan or Australia.
161I note that the plaintiff’s affidavits referred to a long-term ambition to pursue a career as a sound editor. However, when asked about that during cross-examination the plaintiff initially said that sound editing was “just a hobby”.[53] When the difference between that assertion and his affidavits was put to him, he said that it was his “second choice” as a career.
[53]T42
162The plaintiff’s first language is Dari, but he has learned sufficient English to get by day to day. In his second affidavit the plaintiff stated that language difficulties restricted the type of work that he could perform.
163If the plaintiff were to pursue his stated intention of running his own business, he would require sufficient English proficiency to do so. I accept that the plaintiff intended to pursue further English studies. I find that his left wrist condition does not impair him from doing so.
164The clinical note of the plaintiff’s attendance upon Dr Vaziri on 31 March 2021 includes the following:
“He is here for the review of his wrist pain
His wrist pain is OK and he has no more pain
This is a letter to state that above patient wants to finalise his case with Work compensation service. He does not like to go back to his previous job. He wants to study. He has been studying as a fulltime student in TAFE Dandenong for the last semester and has started his second semester recently. I would appreciate your help.”
165The plaintiff’s affidavits did not include any reference to him studying after the incident, and the above entry was not referred to during the plaintiff’s viva voce evidence. Whilst it is in evidence, I do not place significant weight on it. The entry does however further support the findings I have made regarding the plaintiff’s intellectual capacity, his capacity to study, and provides a possible explanation for the plaintiff’s pursuit of part-time employment since the incident.
166I accept that the plaintiff cannot perform heavy manual labouring requiring lifting of weights more than 28 kilograms involving his left hand by reason of his left wrist impairment.
167The plaintiff himself agreed that he had the physical capacity to perform domestic tiling.
168Accepting the opinions of the specialist hand surgeons, Mr Harvey and Mr Robbins, I am not persuaded that the plaintiff is unfit to work as a tiler.
169The plaintiff is an intelligent man, with a tertiary education.
170For the reasons outlined, I find that the plaintiff is not precluded from running his own business, whether as a tiler or sound editor, by reason of his left wrist impairment. He is also capable of a wide range of suitable employment provided there is no very heavy lifting involved.
171I am not persuaded that the plaintiff has lost a career he particularly enjoyed, or the opportunity to pursue a career in business as a tiler or sound editor, by reason of his left wrist impairment.
Soccer/futsal
172The plaintiff said that he was a keen indoor soccer/futsal player prior to the incident. His evidence was that he played in the position of goalkeeper in games with friends two or three nights a week. This was not part of an organised competition or league.
173The plaintiff’s evidence was that he no longer plays, due to his wrist injury.
174I note that the plaintiff did not tender lay affidavits from any witness regarding his soccer/futsal playing before or after the incident.
175For the reasons already outlined, I am not persuaded that the plaintiff has only been able to play half a game of indoor soccer/futsal by reason of his left wrist impairment.
176Given the medical evidence which I have preferred, and my findings regarding the plaintiff’s pain and restrictions, any ongoing left wrist impairment is mild.
177I am not persuaded that the plaintiff’s residual left wrist impairment has prevented or does prevent him from playing indoor soccer/futsal with his friends.
Gym and swimming
178The plaintiff’s evidence was that he attended the gym several days a week before the incident. He said it was an activity that he enjoyed greatly. He would use the treadmill, machines and lift weights at the gym. He would also swim. He did this for fitness and to become “bulkier”.
179The plaintiff said that he has not returned to any gym activities since the incident because of his left wrist impairment.
180The plaintiff accepted that his left wrist would not prevent him using the stationary bike, performing other cardio activities, or swimming.
181When the plaintiff was asked why he had not gone back to the gym and used the treadmill or the stationary bike, his response was “you cannot just do treadmill, you have to do a set of activities.”[54] He said there would be “no point” using the leg press machine and bulking up his lower body if his top half was “skinny”.[55]
[54]T39
[55]T40
182I find that the plaintiff could undertake a wide range of activities at a gym.
183Further, the medical evidence which I have preferred does not support any significant impact upon such activities given the low-level of ongoing symptomatology.
Domestic activities and personal care
184The plaintiff said that before the incident he was not home much because of his work and sporting activities. He deposed to spending Sundays performing some gardening, but not undertaking other household chores.
185Following the incident, when the plaintiff was not working, he assisted with household chores, the care of his nieces and nephews, and with care for his mother.
186The plaintiff continues to assist his mother by performing domestic activities including cleaning, and cooking. He assists his mother with her mobility.
187I find that there is a minor interference in the plaintiff’s ability to undertake domestic activities by reason of his left wrist impairment.
188The plaintiff’s left wrist impairment does not interfere with his personal care.
Sleep
189The plaintiff did not depose to any particular difficulty with his sleep by reason of his left wrist impairment. If there is any residual difficulty I do not find it to be significant.
Analysis
190An impairment is not to be held to be serious unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being “at least very considerable”.[56]
[56]TTB SMS Pty Ltd v Reading [2020] VSCA 203, at [30]
191I am required to consider not only what has been lost but also what has been retained.
192The plaintiff retains the ability to complete his activities of daily living. He can perform domestic activities including shopping and gardening, and assist in the care of his mother.
193The plaintiff can drive for long periods and there is no evidence that his mobility is impacted in any significant way.
194The plaintiff did not claim to have any difficulty socialising by reason of his left wrist impairment.
195I accept that the plaintiff experiences mild pain in his left wrist on an intermittent basis and occasional pain requiring stronger analgesia.
196The plaintiff has not been referred to a specialist for treatment since consulting Mr Harvey in 2020. He has not had any hands-on treatment since 2021, and none is planned.
197I accept that there is a risk that the plaintiff may experience symptoms due to degenerative changes in his left wrist in the future, but on the material before me I am unable to assess the level of risk or the implications in terms of symptoms and treatment if that eventuates.
198I take into account that the plaintiff suffered this injury four years ago when he was just twenty-four years of age. His impairment is permanent in the relevant sense, and he will likely experience the mild continuing symptoms for many years to come.
199On the basis of the whole of the evidence, and in the exercise of the value judgment required of me, I am not persuaded that the impairment consequences of the plaintiff’s injury can fairly be described as “more than significant or marked and as being at least very considerable” when compared to the range of possible impairments.
Conclusion
200The plaintiff’s application is therefore dismissed.
201I will hear the parties on the issue of costs.
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