Jaross v Dandenong Heavy Haulage Pty Ltd
[2017] VCC 1875
•15 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-01441
| DEREK JAROSS | Plaintiff |
| v | |
| DANDENONG HEAVY HAULAGE PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4, 5 and 7 September 2017 | |
DATE OF JUDGMENT: | 15 December 2017 | |
CASE MAY BE CITED AS: | Jaross v Dandenong Heavy Haulage Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1875 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – left elbow injury – tennis elbow – paragraph (a) – pain and suffering only - range
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Hunter v Transport Accident Commission [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Lianos v Inner & Eastern Health Care Network (2001) 3 VR 136; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Humphries & Anor v Poljak [1992] 2 VR 129; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: Leave is given to the plaintiff pursuant to s135AB(16)(b) of the Accident Compensation Act 1985 to bring common law proceedings for “pain and suffering damages” in respect of his left arm injury suffered by him during the course of his employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Gorton QC with Ms K Popova | Adviceline Injury Lawyers |
| For the Defendant | Mr T Storey | IDP Lawyers |
HIS HONOUR:
1 By way of Originating Motion dated 7 April 2017, Derek Jaross (“the plaintiff”) seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”), to bring common law proceedings to recover damages for an injury to his left arm – or, more particularly, his left elbow (“the injury”) suffered by him during the course of his employment with Dandenong Heavy Haulage Pty Ltd (“the defendant”).
2 The plaintiff seeks leave to bring proceedings in relation to the injury for “pain and suffering damages” only within the meaning of s134AB(37) of the Act.
3 The plaintiff was the only witness who gave evidence and was cross-examined. Both parties tendered various documents.[1]
[1]See Annexure “A”
4 Senior Counsel for the plaintiff, Mr J Gorton QC, sought admissions from those acting for the defendant that:
(a) the plaintiff had an accepted claim for the purposes of s98C of the Act in respect of a left elbow epicondylitis injury and such admission was made;[2] and
[2]See Transcript (“T”) 102, Line (“L”) 26-30
(b) as to the number of hours of surveillance of the plaintiff. Such admission was given and Counsel for the defendant stated that there were periods of surveillance of the “plaintiff” on the following dates and for the following times:
(i) 18 November 2013 – 7 hours 30 minutes
(ii) 22 November 2013 – 7 hours 30 minutes
(iii) 7 February 2017 – 6 hours
(iv) 17 February 2017 – 2 hours
(v) 22 February 2017 – one hour
(vi) 25 February 2017 – 5 hours 30 minutes
(vii) 29 August 2017 – 5 hours
(viii) 30 August 2017 – 2 hours.
Relevant legal principles
5 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[3]
[3]See 134AB(19)(a) of the Act
6 The plaintiff initially relied on both paragraphs (a) and (c) of the definition of “serious injury” contained in s134AB(37) of the Act. At the conclusion of the evidence and towards the end of the defendant’s final address, Mr Gorton made clear that he was not relying on paragraph (c) of the Act.[4] Not only did Mr Gorton make clear that he was not relying on paragraph (c) but, also, there was no reliance on the right arm, which had also suffered an epicondylitis but now was asymptomatic.
[4]Transcript (“T”) 143, Line (“L”) 11-27
7 Paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act reads:
“‘Serious injury’ means –
(a) permanent serious impairment or loss of a body function; ... .”
8 The part of the body said to be impaired for the purposes of paragraph (a) is the left arm and, in particular, the left elbow.
9 In order to succeed, the plaintiff must prove on the balance of probabilities that:
(a)The “injury” suffered by him arose out of or in the course of, or due to the nature of, his employment with the defendant on or after 20 October 1999;[5]
[5]See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b)The “injury” and the resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[6]
(c)The “consequences” to the plaintiff of the injury in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of function is:
“… when judged by comparison with other cases in the range of possible impairments … may be, fairly described as being more than significant or marked, and as being at least very considerable.”[7]
This test is sometimes referred to as the “narrative test”.
[6]See Barwon Spinners Pty Ltd & Ors v Podolak (op cit) at paragraph [33]
[7]See s134AB(38)(b) and (c) of the Act
10 In determining the application, the Court:
(a)Must not take into account psychological or psychiatric consequences of the “injury” for the purposes of paragraph (a) of the definition of “serious injury”. These can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[8]
(b)Must make the assessment of “serious injury” at the time the application is heard;[9]
(c)Must give reasons that disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application;[10]
(d)Notes that the question of whether an “injury” satisfies the narrative test is largely a question of impression or value judgment.[11]
[8]See s134AB(38)(h) of the Act
[9]See s134AB(38)(i) of the Act
[10]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [33]-[36]
[11]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issues
11 In his opening, Senior Counsel for the plaintiff stated:
“So to cut a long story short, it seems to be a genuine organic injury in somebody who was engaged in heavy manual work, who’s now unable to do heavy manual work. He’s been able to find lighter work, such that he can’t properly bring a loss of earning capacity claim but we say it’s a case where, on a proper analysis, the consequences for him, when one brings together the pain and the restrictions in the loss of unrestricted work capacity and how that’s made him feel, mean that it’s at least very considerable for him.”[12]
[12]T12, L2-11
12 As I understood the position of the defendant, there was no issue that the plaintiff had suffered a left epicondylitis – and for that matter, a right epicondylitis – arising out of his employment with the defendant. Although there was tentatively raised by Counsel for the defendant whether injury was ongoing or, indeed, permanent, the dispute became whether or not the plaintiff satisfied the narrative test – that is, whether any pain and suffering consequences when judged with other cases in the range of possible impairments may be fairly described as being more significant or marked, or at least being very considerable.
The evidence of the Plaintiff
13 The plaintiff relies on his affidavits sworn on 27 November 2016 (“the first affidavit”) and on 15 August 2017 (“the second affidavit”). At the commencement of his evidence-in-chief, the plaintiff corrected and/or added to the following parts of the affidavits:
(a)In paragraph 31 of the first affidavit, the year “2011” was substituted for “2014”;
(b)Whereas paragraph 33 of the first affidavit states: “I still go bicycle riding … .”, in substitution, the following evidence was given:
Q: “It says you still go bike riding, in the affidavit. What is the situation at the moment with your bicycle riding?---
A: I don’t ride a bike, I try to ride a bike.
Q: What happened when you tried to ride a bike?---
A: I was sore.
Q: Where was the pain?---
A: In my elbow, my forearm.
Q: That brought about - - -.”
HIS HONOUR:
Q: “Well, how do you say that was brought about? Hanging on to the handle bars or the actual riding, or why do you say – can you say how the pain came on?---
A: I think operating the lever.
Q: The lever, I see?---
A: The lever.
Q: Like the brake, or something like that?---
A: The brake.
Q: Or the gears or something like that?---
A: Yes. And just for me, the grip – gripping.”[13]
[13]T14, L9-22
(c)When paragraph 34 of the first affidavit was sworn to be correct, and the plaintiff deposing that he does not enjoy his current work, he was then working at a quarry;[14]
[14]T14, L24-29
(d) Paragraph 3 of the second affidavit, which reads:
“I do my best to limit the use of medication. I am worried about becoming addicted. When the pain in my left elbow becomes unbearable, I take a 15 mg tablet of Moxicaml (sic). I take it for 2 days, have a break from it for a couple of days, then take it again. I also use Panadeine Forte. On average, I take about 6 tablets of Panadeine Forte a week.”[15]
[15]PCB 26-27
When queried about his intake of drug, the plaintiff gave the following evidence:
Q: “What’s the position with your intake of drug?---
A: That’s looking at average. If pain persists, then it will be up to six tablets.
Q: Of what?---
A: At first it was Panadeine Forte but now over the counter and just Panadeine.”
HIS HONOUR:
Q: “Sorry, I just didn’t take that all in. Just give me a description of what you’d take in the last few months, what’s been the situation?---
A: Anti-inflammatory which is the Moxi - - -.
Q: Yes. So that’s the Moxicam?---
A: Yes.
Q: You take that, that’s when your pain is unbearable?---
A: Yes.
Q: How often is that, roughly?---
A: It depends on the job I do.
Q: Right?---
A: If the arm gets a workout then it will be painful, which might be weekly, once a week - one week, every second week.
Q: I see. So that’s your major (indistinct) I didn’t quite understand what you were saying about the Panadeine Forte. What are you saying about that?---
A: I did ask for Panadeine Forte from the doctors, but I don’t continue to keep asking.
Q: So you had Panadeine Forte at one stage?---
A: Yes.
Q: That’s finished now, is it?---
A: Yes.
Q: How long ago did that finish?---
A: Probably six months.
Q: Six months. Other than the Moxicam, other than that, the last few months, do you take any other tablets for your pain?---
A: Panadeine.
Q: Over the counter Panadeine?---
A: Yes.
Q: Can you give any idea how often you take that?---
A: When the pain persists, so when it’s more than sore.
… .
MR GORTON:
Q: So, on average, how many tablets of Panadeine would you take each week?---
A: It varies from week to week.
Q: On a good week?---
A: If it’s a good week, it would be two.
Q; And on a bad week?
A: Six.”[16]
[16]T15, L15 – T16, L19
(e) In paragraph 5 of the second affidavit, the plaintiff states:
“I have started a new job about four weeks ago, driving a washing truck. I’m employed as a causal (sic) and they call me when they have a job available. The job involves me flicking switches with my left arm, for example to put the truck in drive or to reverse the truck. Each shift is 7 hours long but I am able to take breaks when I need to. Despite this, my left elbow pain increases towards the end of the shift and remains painful at night. As a consequence, I don’t enjoy my time at work or at home.”[17]
[17]PCB 27
The plaintiff expanded on the contents of paragraph 5, and the following evidence was given:
Q: “Are you still doing that job?---
A: Yes.
Q: Do you find that job enjoyable or fulfilling?---
A: There’s a lot of waiting time. It’s not fulfilling, but it’s an easy job.
Q: Any easy job?---
A: Mm.
Q: You’re able to do it?---
A: Yes.
Q: How does your enjoyment compare doing a job like that compared to the enjoyment you used to get out of work before you injured your elbows?---
A: Well, a big difference. I used to get to use every heavy machine and load and unload and go different places. Now I’m just driving around in a circle, just on site.”
HIS HONOUR:
Q: “What’s a washing truck? I mean I know what a washing truck means, but you tell me what does a washing truck do?---
A: Another name is a water cart, sprays water, cleans - - -
Q: So do you go to, like, a domestic house to clean their paths or something?---
A: No, on the building sites, construction sites.
Q: I see?---
A: When the trucks leave, the road is unsealed, then the public roads need to be cleaned of mud.
Q: Then you come along and use the high intensity water, is it?---
A: Yes, high pressure.
Q: High pressure and cleans that up?---
A; Cleans it up.
Q: Stops the dust?
A: Dust suppression, used in summer.
Q: So your company, and you being the driver of the truck, you could be sent here, there or anywhere around Melbourne. Is that right?---
A: Yes, different sites.
Q: And it’s just Melbourne or do you go further afield?---
A: No, just local.
Q: I think you say here about seven hours a day is that right?---
A: Yes seven hours from 7 till about 3.30, 4.
Q: What do you earn a week from that?---
A: How much I get, 27.50 an hour.
Q: That’s gross, is it?---
A: Yes.”
MR GORTON:
Q: “Just going back, are you able to explain for His Honour any difference between the amount of satisfaction you get out of the sort of work you’re doing now compared to the satisfaction you got when you were unrestricted in your work?---
A: Obviously less satisfaction now than what I was doing before.”[18]
[18]T16, L22 – T17, L31
14 By way of his first affidavit, the plaintiff gave evidence that he is a fifty-year-old[19] man who was born in Poland and came to Australia when he was fifteen years old. He is divorced and lives with a housemate.
[19]Born April 1967
15 The plaintiff left high school after Year 11 and commenced a surveying and mapping course at RMIT, but did not complete such studies. He then drove taxis and performed some plastering work which involved repairing rising damp in walls. He also worked as a floor sander and did various driving and warehouse work. In the late 1990s and early 2000s, he was involved in comedy, mostly as a hobby.
16 From approximately March 2006 to July 2007, the plaintiff was incarcerated for drug offences, after which he went overseas to try and “start over”. From 2009 to 2011 he worked as a warehouse storeman in the United Kingdom and later in 2011, returned to Australia working, initially, for a few months driving a recycling truck and later working for Nationwide Towing, performing towing work for the RACV.
17 The plaintiff has a heavy combination truck-driving licence and a licence to perform high risk work.
18 Although the plaintiff has suffered from depression and has taken medication since round 2000 for this condition – currently Lovan, 30 milligrams a day – he does not recall any previous worker’s compensation claims, and prior to “the injury” had no major symptoms in his arms that he “can remember”.
19 The plaintiff commenced employment with the defendant as a casual truck driver, but worked about fifty-five hours a week, commencing at about 5.00am and continuing to either 4.00pm or 5.30pm.
20 Although the depot of the defendant was Hallam, the plaintiff mostly worked out of Coates Hire in Dandenong, which was a major client of the defendant. The plaintiff would load a tilt-tray truck with machinery from Coates Hire and deliver the equipment to any particular designated site. Such equipment could include construction equipment, heavy rollers, cherry pickers, scissor lifts and excavators.
21 There were about six to ten pick-ups a day and sometimes the machine was driven onto to the truck and on other times it was winched on. The machine was usually tied down using a “dog-and-chain system” – that is, the chains were placed over the item and then tightened and secured using the “dog”.
22 The plaintiff described the onset of injury to his right arm and, later, his left arm, in the following terms:
“In late 2012 I started having problems with my right arm which is my dominant side. I felt pain and weakness. In early 2013, I also started having problems with my left arm. At first I didn’t think it was serious and just continued as best I could. Eventually, I went to my General Practitioner, Dr Wilk. He prescribed anti-inflammatory medication and referred me for an X-ray and an ultrasound. On 23 May 2013, I had a steroid injection under ultrasound.”[20]
[20]See paragraph [13] of the first affidavit at page 20 PCB
23 Because of ongoing symptoms, the plaintiff decided to take a break to rest his arms. He handed in a medical certificate from his doctor outlining the restrictions and went on a holiday to the United States, where he remained for some weeks.
24 On his return, the plaintiff was unable to work so went onto Centrelink, which advised him to make a WorkCover claim.
25 In August 2013, the plaintiff returned to work on light duties and continued working until November 2013, undergoing a second steroid injection in his left elbow in around October 2013.
26 In late 2013, the plaintiff attended a doctor at the Toorak Place Medical Centre and had laser therapy on his left elbow on six occasions, and physiotherapy until November 2013. The physiotherapist taught him exercises that he has continued to do at home. He massages the elbow, but not too often, and was also given the exercise of reverse weightlifting, which he did for a while.
27 The plaintiff has had no further treatment and has been told that nothing more can be done and he has to live with the pain. He has been informed that it will resolve over time, but he believes there has been no substantial improvement. He notes that he takes Valium very occasionally for his anxiety, and that prior to the injury he had not had a panic attack since the early 2000s, but since the injury he has had two panic attacks that have required hospitalisation.
28 The plaintiff made a WorkCover claim for which liability was accepted and further, an impairment claim, for which liability was accepted in relation to an injury described as “left elbow epicondylitis relevant to claimed left tennis elbow”.[21]
[21]See first affidavit of the plaintiff at paragraph [22] at page 21 PCB
29 After ceasing with the defendant in November 2013, the plaintiff received weekly payments of compensation until February 2014, when such payments were terminated on the basis that he was not adequately complying with his return-to-work obligations.
30 Eventually, the plaintiff commenced new work with Altus Traffic in Sunshine West on 13 April 2015, working about twenty to twenty-five hours per week, involving him standing and directing traffic. He notes that there was no real lifting involved, he was able to cope with this light work at the hours that he worked.
31 In March 2016, the plaintiff commenced with Programme Skilled, which is an agency, and broke his finger in May 2016, and was off work for two months. He returned to work in approximately July 2016 and is currently (at the swearing of the first affidavit) working about forty to fifty hours per week. He notes that he found the work physically demanding, and having pain every day, causing him to modify his movements to avoid pain. When the pain is really bad he wears a bandage on his left elbow.
32 The plaintiff deposes that his left elbow “is much better than it was”, but he still experiences significant pain. In particular, the pain is worse when he lifts or uses it too much, whereas if he has been resting the arm, there is little pain. He describes the pain when it occurs as like a sharp pain in his left elbow and heavy activity makes it feel sore and heavy. In particular, the plaintiff deposed:
(a)He feels pain around the front of the elbow and the side of the elbow which can radiate down the forearm with, sometimes, tingling in the left forearm. He notes that, despite the pain, he has a reasonable range of movement;
(b)He is able to do lighter chores at home, whereas lifting groceries with the left arm, or anything that requires both arms, does cause him pain. He does try to get onto things as much as possible and he does do mowing, but it causes pain;
(c)He previously enjoyed riding a motorbike and used to own a motorbike, but sold it before going to the United Kingdom. When returning in 2011, he used a car that had been sitting in his parents’ garage, intending to buy a motorbike again;
(d)He has always been interested in archery, although when working with the defendant, the long hours of work prevented him taking up this hobby. Last year he went to an archery club and used their bow and arrows to see if it was something he could do, but found it caused too much pain in his left elbow;
(e)He enjoyed kayaking. He used to kayak with his brother from time to time and did this up to the time he was injured, a few times a year on the Yarra River or at the Sandringham Yacht Club. He has tried kayaking since 2014, but found it painful with the repetitive rowing motion, and it is something he can no longer perform;
(f)He used to go to the snow from time to time, with the last time being in the mid-2000s. It was something which was quite expensive, and prior to “the injury” he was saving money so that he could go skiing. He has not gone skiing since the injury because he knows it will be too painful for him to push the stocks with his arms. In the last three paragraphs of his first affidavit, the plaintiff deposes:
“All of my work experience has been very physical. I am now no longer able to do heavy lifting that requires the firm use of both arms. I don’t enjoy my current work at all. It is very sedentary. I enjoy physical work. It makes me feel better about myself and I sleep better at night. My current work is boring. Previously, I would be problem solving, using my hands and thinking. I have mostly worked as a tradesperson or truck driving. I can’t go back to truck driving because I need to constantly changes gears. I am able to drive my car which is an automatic, but I am not able to drive a manual car.
I got my excavator ticket in 2013. I thought this would be something I would be able to do. However, operating an excavator requires me to use my left arm to operate the stick. I did it for five hours on one occasion and realised it would be too painful and wasn’t a realistic job option for me.
All I know is how to drive a truck or to do jobs that involve lifting. I have been offered jobs that I have had to turn down. Because of my left arm I can’t do any work on the shovel or trowelling plaster. It is hard to work out what I can do for the rest of my career. I don’t have a degree or qualifications. Pushing 50 is becoming almost impossible.” [22]
[22]See the plaintiff’s first affidavit at pages 24-25 PCB
33 By way of his second affidavit, the plaintiff deposes that his physical symptoms haven’t changed since his first affidavit and he continues to have pain in the left elbow which becomes worse when he uses it. He notes that his right elbow pain comes and goes but it is mostly the left elbow that bothers him. He wears a band on the left elbow to ease the pain for about an hour at a time, including at work. He finds that if he wears the band for any longer the skin underneath the band gets itchy and uncomfortable.
34 Four weeks prior to the second affidavit he commenced driving a “washing truck” on a casual basis. He describes how this job involves him flicking switches with his left arm, for example, to put the truck in drive or to reverse the truck. I refer to the final few paragraphs of the second affidavit wherein the plaintiff deposes:
“I was in a good place when I started with [the] Defendant. I was getting my life on track. I was doing well on anti-depressants. I had a history of heavy drinking but it was under control by then. Since the injury, I feel that my depression has gotten worse and I am more anxious. Since my First Affidavit I have had a further panic attack. I have thought about taking my life as a way out I constantly worry that I won’t be able to cope with work because of my injury and that I won’t be able to pay my bills and rent. Out of frustration with my injury, I have turned to alcohol again. I have had to make difficult decisions because of my injury, like choosing a job that doesn’t pay well but that I could physically cope with. In the past, I have had to decide whether I try to do a job above my physical limits and whether I tell an employer about my injury. I have found looking for work and working with an injury very stressful.
I continue to use anti-depressant medication. I take 30 mg of Lovan per day and use Valium on a needs basis. I am reluctant to see a psychologist. I saw a psychologist in about 2014 and it made me feel worse. I am generally put off by the idea.
I continue to see Dr Wilk, my GP about once a month for prescriptions.
I am doing my best to get on with my life despite my injury but it is very hard.”[23]
[23]See Plaintiff’s second affidavit at pages 27-28 PCB
Other material
35 Before turning to the cross-examination of the plaintiff, it is perhaps apposite to refer to the other material relied on by the plaintiff.
36 The plaintiff underwent two ultrasounds of the left elbow:
(a)The first was on 21 May 2013, with the radiologist reporting the following findings:
“The left common extensor tendon is heterogeneous and hypervascular, consistent with moderate lateral epicondylitis. The patient will be booked in for an ultrasound guided cortisone/Marcain injection for this. A small partial thickness intrasubstance tear of the left common extensor tendon is noted, measuring 9mm x 5mm.
No tendon calcification.
No other focal or diffuse soft tissue abnormality in relation to the left elbow joint.”[24]
(b)The second was on 24 September 2013, with the radiologist confirming that the plaintiff had suffered a small partial tear at the common extensor origin in the left elbow.[25]
[24]See exhibit 4 at page 61 PCB
[25]See exhibit 64 a page 60 PCB
37 The plaintiff relies on a medical report dated 19 May 2015 from Dr J Tarnawaski situated at the Toorak Place Medical Centre.[26] In that report, Dr Tarnawaski records that the plaintiff initially consulted him on 26 September 2013, complaining of left elbow pain arising in the course of his employment as a truck driver. In particular, his pain was not improving, despite being treated with physiotherapy.
[26]See exhibit 2 at pages 32-33 PCB
38 Examination at that time revealed a full range of movement of the left elbow, but tenderness over his medial and lateral epicondyle, and also tenderness over his left common extensor muscles.
39 Ultrasound (already referred to) of his left elbow showed a small partial tear of the common extensor origin, and the plaintiff was diagnosed with left lateral and medial epicondylitis or, as sometimes called, left tennis elbow and left golfer’s elbow.
40 The plaintiff was treated with eleven bouts of low-level laser being applied to the tender areas over a period from 26 September 2013 to 23 November 2013.
41 Dr Tarnawaski notes that although the left elbow pain improved initially, overall there was no significant improvement. Dr Tarnawaski referred the plaintiff back to his regular general practitioner for further treatment and did not see him again after November 2013. He was of the opinion that the left elbow injury was attributable to his employment as a truck driver and that it was likely to improve in the future.
42 The plaintiff also relies on medical reports from the general practitioner, Dr Felix Wilk, dated 30 August 2014, 30 April 2015 and 1 June 2017.[27] The plaintiff initially consulted Dr Wilk in relation to left elbow pain on 21 May 2013 and gave a history that he was employed by the defendant as a truck driver, which involved, among other things:
“… loading & unloading heavy machinery onto & off trucks. Heavy chains were used to affix the machinery and these chains needed forceful pulling and tightening several times each day.”[28]
[27]See exhibit 2 at pages 36-41 PCB
[28]See exhibit 2 at page 36 PCB
43 Dr Wilk noted that in late 2012 the plaintiff had developed pain in his right elbow (his dominant arm), which lasted for some months and then settled, followed by the onset of pain in the left elbow, which worsened over the first part of 2013. He reported that his general health over the years had only been “fair”, having had problems with chronic depression and anxiety, although had not suffered any joint problems and, in particular, any problems with his elbows.
44 Examination at his first visit revealed moderate tenderness over the left lateral epicondyle, with weakness of grip strength and wrist extension, consistent with moderate lateral epicondylitis (tennis elbow). An x-ray and ultrasound of the elbow were arranged, revealing thickening of the common extensor origin and confirming the diagnosis.
45 A cortisone injection was administered on 23 May 2013 which, unfortunately, did not improve his condition and he was certified by Dr Wilk as being fit for alternative duties, using the right hand, mainly, and with no strenuous or repetitive duties with his left hand. Although the plaintiff returned to light duties, such duties were, according to Dr Wilk, were “not really suitable” and the plaintiff experienced increasing pain in the outer aspect of his elbow.
46 A further ultrasound on 24 September 2013 revealed, according to Dr Wilk, a worsening of the condition, with a partial thickness extensor tear and a further steroid injection was carried out on 15 October 2013, and as at the time of writing his first report (August 2014), Dr Wilk noted that he continued to see the plaintiff in late 2013 and early 2014, and although the lateral epicondylitis had “certainly improved over time”, the situation was that heavy activities will very “quickly make his arm sore and feel heavy”, and even lighter activities such as carrying bags of shopping, will also hurt.
47 Dr Wilk was of the opinion that the plaintiff had suffered a left lateral epicondylitis as a direct result of his employment, whereas a similar right arm problem had settled spontaneously in 2012, the left had continued despite rest, analgesic medications, stretching exercises and two cortisone injections. At that time, Dr Wilk thought the prognosis was probably “quite good” as tendinitis “all other things being equal, is an annoying but ultimately self-limiting condition”.[29]
[29]See exhibit 2 at page 37 PCB
48 In the last report dated 1 June 2017, Dr Wilk notes that in the early months of 2015, the plaintiff’s left elbow tendinitis did partially settle, and in May 2017 he managed to get a job as a traffic controller, which did not last long as he found it “extremely boring and it did not bring him enough income as he worked only three days per week”. After a short period of employment Dr Wilk reports that the plaintiff managed to get another truck-driving job and managed this for some time as it did not involve strenuous left-hand duties.
49 The plaintiff’s visits over the next several months were not related to his elbow, but more to his chronic depression, anxiety and alcohol problems. However, in May 2016, he presented to the surgery with a flare-up of his tennis elbow, and this was treated conservatively with physiology, a tennis elbow strap and anti-inflammatory medications.
50 The plaintiff was also seen on 17 May 2016 when he suffered a crush injury to his right ring finger, which had to be repaired surgically, and was off work for some time but recovered uneventfully.
51 Furthermore, in November 2016, he presented to Dr Wilk with a relapse of his depression and he had stopped taking his anti-depressants as he felt they were not helping which in turn led to an increase in his alcohol intake to some ten or so standard drinks per day. At that time, he reported he had a new job driving a tip truck at a quarry but this had led to an aggravation of his elbow problems and he was trying to soldier on as he needed to be employed for both his financial and psychological health.
52 Dr Wilk reports that he last saw the plaintiff on 4 May 2017 when the plaintiff reported that he had quit his job at the quarry and was unemployed. When queried by his solicitors as to the consequences of his left elbow injury only, Dr Wilk stated:
“Any strenuous or forceful activities with the left arm are painful for him, which would certainly restrict him in some social and recreational activities. Most normal domestic activities should not be a problem for him. His sleep is not interrupted by pain, nor does he normally need medications.”[30]
[30]See report dated 1 June 2017 – exhibit 2 at page 41 PCB
53 The plaintiff also relies on a report from the physiotherapist, Mr Hew Gibbs, dated 16 June 2014.[31] The plaintiff consulted initially with a physiotherapist on 19 September 2013, at which time he complained of developing left lateral elbow pain approximately six weeks prior which he attributed to his work as a truck driver which involved repetitive use of the left arm for manual handling.
[31]See exhibit 2 at pages 29-31 PCB
54 In particular, pain was aggravated by heavy lifting, and repetitive wrist extension, and eased by rest, use of a tennis elbow brace and use of non-steroidal anti-inflammatory drugs. Pain was better in the morning and tended to become worse throughout the day. Objective examination revealed a full active range of motion of the left elbow, as well as full strength recorded at 5 out of 5. Both passive and active extension of the left wrist reproduced his pain, as did resistant extension of the third digit. There was tenderness on palpation of the left wrist extensor muscles and over the common extensor origin of the lateral elbow.
55 The diagnosis based on the subjective and objective findings were consistent with a diagnosis of left lateral epicondylitis (tennis elbow). In particular, Mr Gibbs states:
“The nature of this injury is one of overuse, that is, repetitive loading of muscle and tendon structures resulting in micro-trauma, and subsequent inflammation, muscle spasm and pain. The underlying disease process with regard to tendonitis can be described as ‘a failed healing response,’ whereby increased tenocyte migration actually proliferates tendon damage. This process is not unlike an autoimmune response.
On this basis, tendonitis typically exhibits certain characteristics – it is unlikely to heal with rest alone, often becomes chronic, and is easily aggravated with return to the activity which caused it in the first place.”[32]
[32]See exhibit 2 at page 30 PCB
56 The plaintiff was prescribed various treatment modalities, including exercises, manual therapy, prescription of a tennis elbow brace and electrotherapy; that is, ultrasound. He last attended Mr Gibbs on 27 November 2013.
57 The plaintiff also relies on two medico-legal examinations:
(a) The orthopaedic surgeon, Mr Duy Thai, medico-legally examined the plaintiff on 31 May 2016;[33] and
(b) The orthopaedic surgeon, Mr Stephen Doig, medico-legally examined the plaintiff on or about 13 June 2017.[34]
[33]See report dated 12 June 2016 – exhibit 2 at pages 42-44 PCB
[34]See report dated 15 June 2017 – exhibit 2 at pages 45-47 PCB
58 On his examination, Mr Thai found the plaintiff had mild tenderness over the left lateral epicondyle at the origin of the common extensor origin, together with resisted wrist and finger extension causing a puling sensation of ultimately forearm extensor muscle mass but not much pain at the lateral epicondyle. There was a full active range of motion of the shoulder and elbow with a negative impingement sign at the shoulder.
59 In his report, Mr Thai stated:
“Mr Jaross’ symptoms are currently mild and his condition is stabilised with conservative measures. He continues to use a counterforce elbow brace whenever he does heavy lifting.
His current employment as a truck driver in a quarry does not require him to do any heavy manual tasks with his arms. He steers with his left arm and uses his right arm to control the hydraulic lift. He states that he can manage the role as it does not involve any heavy lifting.
Based on his current symptoms and level of function, Mr Jaross’ prognosis is good at this stage. Provided he refrain[s] from any heavy lifting, pushing or pulling using the left arm, his long term working capacity should be maintained.
…
There is no further treatment required at this stage and his symptoms are currently mild and not functionally disabling.
…
Mr Jaross is not expected to return to his pre injury role and his incapacity will be permanent.”[35]
(Emphasis added.)
[35]See exhibit 2 at page 43-44 Plaintiff’s Court Book
60 Examination by Mr Doig of the left elbow revealed that the plaintiff had a range of movement of nought to 120 degrees with supination to 80 and pronation to 85. He has one-centimetre of left upper arm wasting when compared with the right-hand-side. He is slightly tender around the common extensor origin, but not around the common flexor origin. The provocative tests for a tennis elbow are all negative. He has normal neurovascular function.
61 In particular, Mr Doig states:
“This gentleman gives a history of a gradual process type injury affecting his left elbow. He had an injury to the right elbow, but that seems to have clinically settled down. As far as his left elbow is concerned, if the clinical diagnosis is one of chronic lateral epicondylitis or tennis elbow and that is consistent with the mechanism that he has described.
He is currently not working having resigned his current job about a month ago.
The diagnosis here is one of a left tennis elbow and I consider that this is related to his work for all of the reasons set out above. I consider that he is restricted in his social, domestic, and recreational activities. He said he finds it hard to lift on the left-hand side. He finds it hard to carry. He finds it hard to do the housework. He restricts his riding a motorcycle and he says that he has not gone back to canoeing. He said he attempted to do archery, but was not able to do that because of the ongoing ache in the left elbow. I consider this is consistent with his current presentation. He states that he does require medications being in the form of Panadeine and Mobic, and I consider that is consistent.
… .”[36]
(Emphasis added.)
[36]See report of Mr Doig at pages 46-47 PCB
62 It is also convenient to refer to the medico-legal material relied on by the defendant, although much of it is dated. Those acting for the defendant arranged for the following examinations:
(a)Dr Geoffrey Graham, an occupational physician, who medico-legally examined on 6 August 2013;[37]
(b)Report of the occupational health consultant, Dr David Ho, who medico-legally examined on 18 November 2013.[38]
[37]See report of same date – exhibit “A” at pages 2-6 Defendant’s Court Book (“DCB”)
[38]See report of same date – exhibit “A” at pages 11-17 DCB
63 When examined by Dr Graham, the plaintiff was complaining of increasing soreness over both elbows, indicating both medial and lateral epicondyles. The plaintiff attributed his symptoms to pulling on “chains and using dogs”. The plaintiff gave no past history of problems relating to his left arm and his major limitations related to “heavy lifting or forceful use of his left hand or arm”.
64 Examination revealed a full range of flexion and extension of the left elbow. The lateral epicondyle of the elbow was tender to palpation while there was no tenderness to palpation over the medial condyle.
65 At that time, Dr Graham was of the opinion that the plaintiff suffered a “minor degree of lateral epicondylitis affecting each elbow but his symptoms appear to be augmented by a degree of upper limb neural tension.”[39] Dr Graham was also of the opinion that such symptoms would have arisen as a result of his duties as a heavy haulage driver at that time. Dr Graham considered the plaintiff fit for modified duties which should not involve repetitive force or use of the arms and hands.
[39]See exhibit “A” at page 5 DCB
66 When examined by Dr Ho, the plaintiff complained initially of right elbow pain and later left elbow pain. At the time of examination he had no symptoms in the right elbow, but examination of the left elbow revealed tenderness in the lateral epicondyle, and the proximal extensors and provocative tests for lateral epicondylitis were positive on the left. Movement of the left elbow was to full range.
67 At that time, Dr Ho was of the opinion that the plaintiff had sustained bilateral tennis elbow or lateral epicondylitis but, at the time of the examination, his right elbow was symptom free. Examination confirmed a chronic left tennis elbow or lateral epicondylitis causing him to be unfit to resume his pre-injury duties. At the time, Dr Ho was of the opinion that the plaintiff was fit for alternative duties, avoiding heavy lifting in excess of 5 kilograms, avoiding fast, repetitive use of his left hand in the palm down position and avoiding strenuous use of his left hand.
68 The defendant also relies on a report from the rheumatologist, Dr Roy Karna, who examined the plaintiff on 2 September 2015 in order to make an assessment for the purposes of an AMA Fourth Edition Impairment Assessment in relation to lump sum impairment.[40] At the time of that examination, the plaintiff complained of low-grade left elbow rest pain, made worse with trying to lift things. He also complained that he noticed some mild restriction in motion of the left elbow, but there had been no swelling, vasomotor change or sudomotor change, but is prone to intermittent extensor forearms pins and needles on the left. He had no right-sided symptoms.
[40]See exhibit “A” at pages 21-23 DCB
69 At examination, Dr Karna found the plaintiff to be a “genuine and credible individual” who had localised tenderness in the extensor muscle belly of the left elbow, but not over the epicondyle.
70 Dr Karna was of the opinion that the plaintiff suffered from mild residual symptoms and dysfunction of the left elbow as a result of the soft-tissue injury to the left elbow and should be treated conservatively. Under the Guides, which are based on movement, Dr Karna found the plaintiff to suffer a 2 per cent upper extremity impairment which translated to a 4 per cent whole person impairment under the relevant provision. Those acting for the defendant also relied on a Certificate of Opinion from a medical panel dated 10 November 2015, which certified the plaintiff to be suffering a 1 per cent whole person impairment resulting from “the accepted left elbow lateral epicondylitis relevant to claimed left tennis elbow injury when assessed in accordance with Section 91 of the Act.”[41]
[41]See exhibit “A” at page 30 DCB
71 Those acting for the plaintiff also tendered Reasons for Opinion of the Medical Panel at the time of tender. Senior Counsel for the plaintiff raised whether such Reasons for Opinion are admissible under the legislation.[42] Ultimately, it was agreed that the tender would remain and the parties would leave it to me to determine whether or not such Reasons were admissible – if not, I would ignore them in determining this matter.
[42]See T104, L9-28; T110, L7; T111, L15
72 I refer to Grech v Orica Australia Pty Ltd,[43] wherein Ashley J recognised that there are certain exceptions where such Reasons would be admissible. In the circumstances of this matter, he held that the Reasons were admissible on two bases: they were part of the material upon which some doctors offered their opinion and so assisted to explain those Reasons; and, secondly, they disclosed the defendant’s acceptance that the plaintiff had sustained a compensable injury to his hands and wrists and mental injury on or after 20 October 1999, and so constituted an admission against interest.
[43](2006) 14 VR 602 at paragraph [41]
73 Neither of those grounds are relevant to this matter. In all the circumstances, I am of the view that the principle enunciated in the Lianos v Inner & Eastern Health Care Network[44] is apposite in this matter. Accordingly, I rule that the Reasons are inadmissible and will accordingly ignore them in the determination of this matter.
[44](2001) 3 VR 136
The cross-examination of the Plaintiff
74 The plaintiff was cross-examined about his current employment and the plaintiff explained that the truck is equipped with a nozzle in front of the truck and after he turns on the pumps, controlled in the cabin, the water comes out under pressure and cleans bitumen. The plaintiff also described how he handles, when required, a 4 or 5 metre flexible hose when the tank on the truck is required to be refilled with water. It is necessary for the hose to be connected to one end to the tank which is situated at approximately waist level and one to a fire hydrant. The plaintiff explained that during the course of a shift he may only do this once. At other times he may do it four or five times during the shift. The tank holds about 20,000 litres of water.
75 The plaintiff also gave evidence that occasionally he might use the hose assisting concreters if they need water, to spray water on fresh concrete. In particular, the plaintiff described the hose like a garden hose, and “not heavy”.[45] The truck is an automatic truck and has power steering.
[45]T21, L6
76 When queried about his comment that the work was “easy”, the plaintiff confirmed that he meant the work was physically easy.[46] Furthermore, the following evidence was given:
[46]T21, L12
Q:“But you say you don’t find any enjoyment from this particular job?---
A:Well, sometimes you sit and wait for hours and just sit there, you know – boring.
Q:Is it the sitting and waiting around that detracts from your enjoyment of the job?---
A:Yes, I would say yes.
Q:You say that previously your job with Dandenong Heavy Haulage was enjoyable for you?---
A:Yes, it was.”[47]
[47]T21, L13-19
77 The plaintiff was also cross-examined about his employment with the defendant and, in particular, the requirement to go to Coates Hire on a regular basis. It was put to him that there was a particular yardman at Coates Hires who gave him a “tough time” and reference was made to paragraph 12 of his first affidavit,[48] wherein he deposed, in part:
“… There was a yardman at Coates Hire who regularly harassed me to tighten the chain and pull hard on the dog to make it tight. This required force. I understand that a number of people working for DHH had problems with this particular yardman. … .”
[48]See exhibit 1 at page 20 PCB
78 The plaintiff accepted, under cross-examination, that he was being singled out by this particular yardman for bullying and being harassed and that it caused him distress from time to time. When queried whether it got to the extent that he considered quitting his employment with the defendant, the plaintiff gave the following evidence:
A:“I was complaining to my bosses but if I was ready to quit? No, not really.
Q:You were complaining to your bosses and you were ready to quit?---
A:Not really.
Q:I’m sorry?---
A:I wasn’t going to quit job, no.”
HIS HONOUR:
Q:“I think he said, ‘I was complaining to my bosses but ready to quit; not really,’ as I understood his evidence.”[49]
[49]T22, L11-19
79 It was put to the plaintiff that he had had a variety of jobs, a lot of which were for a short period of time, to which he agreed, although he did note that a couple of jobs were for longer periods of time. The plaintiff confirmed that during his adult working life he has driven taxis, performed some plastering work, repaired rising damp on walls, and briefly was engaged in renovating houses.
80 The plaintiff gave evidence that he ceased work as a floor sander because the polyurethane was getting to his lungs, causing him to cough after work, and he agreed that that job was not “too enjoyable”.[50]
[50]T23, L10-14
81 The plaintiff also confirmed that he had done a variety of driving jobs and warehouse work. When in the United Kingdom in 2009, he again found work in a warehouse for a company called Sports Direct and that job involved packing. Because the pay was meagre, he left that job and returned to Australia.
82 The plaintiff confirmed that he did not like performing the work with Sports Direct. On returning from England in 2011, the plaintiff commenced with Visy, driving recycling trucks, and remained there for a couple of months before finding a better paying job. When working for Visy he was driving a garbage truck, which he described as “not a very pleasant job” and, in particular, stated that If you did not wash your hands before lunch you would get diarrhoea. On leaving Visy, he commenced with the RACV as a tow-truck driver to get experience, but was only earning the minimum wage of $18 an hour on the afternoon shift.
83 Under cross-examination, the plaintiff agreed that he commenced employment with the defendant in October 2011 and his employment essentially involved driving tilt-tray trucks and the transportation of heavy items of machinery, such as excavators and the like. It was put to the plaintiff that in May 2013 he told his employer that he wanted “some time off”, to which the plaintiff gave evidence as follows:
“Yes, I had a sore arm and my doctor said, ‘Take two weeks off and hopefully the pain will go away’. I took time off but the pain did not go away and I couldn’t work.”[51]
[51]T25, L11-14
84 The plaintiff accepted that he had been employed as a casual employee with the defendant for about eighteen months, but disputed the proposition that when he took his holiday in May 2013 he had not informed a representative of the defendant that he had a sore arm – in this case, Mr Rodney Smith.
85 In response to a question from the Court, the plaintiff confirmed that he had to use his arms to tighten up loads on his truck. Furthermore, the following evidence was given:
Q:“If you had to go back to that job, what difficulties would you say you have?---
A:Well, the most difficulty was opening the dog – what’s called a dog – and I think that’s where the injury happened, when I had to open – to close it you could have to use a pipe or extension bar to close it down.
Q:Right?---
A:Then you need to open it and then when it came to opening you couldn’t use an extension to open it because it shoots open.
Q:But the opening the dog and closing the dog you believed – and I’m not suggesting you’re necessarily wrong – but you believe that caused the problems in your arms and that would be a problem now for you you say?---
A:Yes, that’s so.
Q:But the driving of the truck itself, does that cause you any difficulty?---
A:Changing gears was painful.
Q:But an automatic truck you’re driving now?---
A:An automatic truck there’s no problem.
Q:Just on that, I take it you drive a motor vehicle, do you?---
A:Yes.
Q:An automatic or manual?---
A:Automatic.
Q:Again, there’s no difficulty?---
A:No problem.”[52]
[52]T27, L12 – T28, L1
86 On the basis of what was said, entries in the passport were put to the plaintiff that he landed in America on 27 May 2013 and stayed there for approximately three months, exiting from the United States on 24 August 2013. The plaintiff disputed the period of time that he was in the United States and said he was probably there ten days “maximum”.[53] He described visiting a cousin in Boston for that period.
[53]T28, L10-11
87 On his return to Australia, the plaintiff accepted that he did not return to work as he had seen his doctor and his arm was still sore. He asserted that he told his employer that his arm was still sore and he needed a little more time off. The plaintiff confirmed that he sought benefits from Centrelink rather than making any claim under the Worker’s Compensation Scheme as he was uncertain how that system worked and that he was a casual when the injury had occurred.
88 The plaintiff confirmed that he did ultimately make a claim for compensation which is dated 1 July 2013, which was supported by certificates from Dr Wilk. The plaintiff accepted that the medical certificate certified him fit for modified duties.
89 When queried about his return to work on modified duties, the following evidence was given:
HIS HONOUR:
Q: “Just over the period say, from when you went back and when those certificates in May 2013, you went back doing modified duties. What were the duties you went back to?---
A: They got me – yes, I was in the office.
Q:Yes?---
A:For maybe four days, sorting paperwork.
Q:Well, firstly you didn’t go back out on the trucks?---
A:No.
Q:No. So from that point on, you’re in the office doing what, clerical-type work?---
A:Yes.
Q:Were you doing the normal number of hours or was that reduced?---
A:Four hours a day.
Q:Four hours a day, five days a week?---
A:Three days a week.
Q:So 12 hours?---
A:Yes.
Q:Did that stay the same or did that increase or change over the time you were back on modified duties?---
A:That stayed the same.
Q:Yes, thank you.”
MR STOREY:
Q:“Mr Jaross, you say you weren’t doing any truck driving duties. Is that the case?---
A:When?
Q:When you were first certified as being fit for modified duties?---
A:Mm.
Q:You’ve told His Honour that didn’t include any truck driving. Is that in fact the case or were you doing some truck driving but without the dog and chain aspect?---
A:One occasion they asked me to take the truck to the mechanics, where I aggravated my arm and I say, ‘I couldn’t do it, I can’t do it.’ I was in pain after that.”
HIS HONOUR:
Q:“… Why did that aggravate your arm, driving the truck to the - - -?---
A:Changing gears.
Q:Changing gears, yes. Yes, I understand. So it’s your left arm, so changing gears. It’s a floor stick is it?---
A:Yes.
Q:That gives rise to pain, does it?---
A:Yes.”[54]
[54]T31, L10 – T32, L12
90 It was put to the plaintiff under cross-examination that rather than starting in July 2013 he did not recommence employment with the defendant until about 30 September 2013, to which the plaintiff stated “I would say so, yes”.[55] When queried as to why he did not start back earlier on the light duties, the plaintiff initially stated “Don’t know. Was nothing for me to do.”[56] Later, the following evidence was given:
[55]T32, L17-18
[56]T32, L26
HIS HONOUR:
Q:“I just want to clarify one thing myself too. In your affidavit, Mr Jaross, you say – this is at p.21, paragraph 16. He says, ‘In August 2013, I returned to work on light duties. I continued working until November 2013.’ Is that right or is that wrong?---
A:That’s right, yes.
Q:Your started back with the employer – with the defendant in October 2013 on modified duties. Is that right?---
A:Yes. There was some delays, they couldn’t get the plan of light duties together – how many hours I should be working, what should I be doing. It seems like the insurance company – took them a long time to put a plan together.
Q:Well, I’d just like you comment on this then if you can. Counsel has put to you that it would appear – and the documents are here, you’re getting certificates of capacity running from about – I think it was about May 2013, for modified duties. Why is it that you did not go back to work on modified duties at that time?---
A:There was nothing there for me to do.
Q:I see. So you were ready to go back but there was no work there?---
A:Yes.”[57]
[57]T33, L3-24
91 I also point out that Counsel corrected me that the Certificates commenced in July 2013, not May.
92 The plaintiff accepted, under cross-examination, that he walked out on the employer in November 2013 and when queried as to why he did this he stated:
Q: “You walked out?---
A:Yes. Everyone was picking on me at work, and then the owner was mean to me and he was degrading me and in a very sarcastic way asked me to wash his private car and scrub the rims.
Q:You felt that you were being treated poorly. Is that what you’re saying?---
A: Yes.”[58]
[58]T34, L26-31
93 Under further cross-examination the plaintiff explained that after four or five days performing clerical duties he was put in the workshop, and during the course of his work in the workshop the doctor’s limitations were not adhered to. In particular, the plaintiff referred to such job as cutting branches, using a shovel, lifting things heavy, operating a grinder, heavy drills, et cetera, all of which was against the recommendation of his doctor that he be limited to 5 kilograms of loading on his left arm and such duties were far more strenuous. Again, the following evidence was given:
Q:“You say you left because they were mean to you and they were degrading you?---
A:Yes.
Q:So you agree it had nothing to do with your elbow pain but more the way you felt about the way people may have been treating you?---
Q:You could say it, like, either way. I didn’t like the way they treated me and I didn’t like what they were – they were against the doctor’s orders what they were getting me to do.”[59]
[59]T36, L17-24
94 Further, under cross-examination the plaintiff was taken to the history he purportedly gave Dr Ho on 18 November 2013, wherein it is recorded that he told Dr Ho that he ceased working two weeks ago (that is, the light duties) for stress-related chest pains. The plaintiff accepted that he did tell him that. The plaintiff was cross-examined about treatment he had over the period from ceasing work with the defendant to April 2015, and ultimately gave evidence that he believed he probably had physiotherapy five times during that period for his left tennis elbow. He accepted that in around April 2015 he obtained a part-time job involving traffic work and, in particular, his duties involved operating the stop/slow sign around the building site.
95 The plaintiff described working approximately twenty to twenty-four hours a week and that he was managing, and physically he had no problems. In particular, the evidence was:
Q:“At that stage, April 2015, no problems with your elbow?---
A:Well, what do you mean no problems? There’s problem – elbow was sick but the job didn’t require me to use it, you know.
Q:The elbow was sick, what do you mean by that?---
A:That if I use - any physical work, it will hurt.
Q:Were you getting treatment from April 2015? Were you getting any treatment for your left elbow, around the time that you were doing the traffic work?---
A:No.
Q:You weren’t getting any treatment?---
A:No, I was giving it a rest.”[60]
[60]T43, L22-T44, L1
96 The plaintiff confirmed that he resigned from that job because he was not getting paid enough, and later he confirmed that his cessation of employment there did not really involve problems with his left arm. Under cross-examination the plaintiff confirmed that he commenced with Programmed Skill in March 2016, driving a dump truck from the chute to a heap.
97 By that, the plaintiff explained that rocks go into a bin which the truck is driven under – the bin is opened and fills up the truck – which is then driven 200 or 300 metres and you tip it onto a heap. The process of the rocks dropping into the back of the truck is controlled by someone above you by remote control and then the tray is tipped by the driver of the truck unloading the rocks. The work was undertaken in quarries in West Gippsland. The plaintiff did confirm that sometimes he was required to perform manual duties, which might have involved cleaning up, helping the maintenance people, hosing down areas or passing tools to various workmen.
98 In hosing, the plaintiff would use a high-pressure type hose and sometimes was also required to wash out the bins. Generally that involved climbing up stairs or a ramp with the pressure hose in one or two hands and, thereafter, directing the hose into the bin. In particular, the following evidence was given:
HIS HONOUR:
Q:“This work with Program Skilled driving the truck as you described and dropping the rocks off and coming back and helping out others as required, you coped with that work?---
A:It was hard, I must say.
Q:Hard in what sense?---
A:Well, you get tired with it.
Q:But, what, just physically tired or do you - - -?---
A:Physically tired.
Q:I suppose I’m really directing this about your elbow. Could you cope with your elbow condition during this type of work, or what was the situation?---
A:It was aggravating my elbow, yes.
Q:It was aggravating your elbow?---
A:Yes.
Q:What part was aggravating your elbow?---
A:What part?
Q:What part of the work? Well, it might be all of your work, or some of it? I just want to know what?---
A:The cleaning, lifting.
Q:Actually driving the truck itself was not too bad, but it was the other bits and pieces, was it?---
A:Yes, yes.”[61]
[61]T47, L4-21
99 In response to a number of questions, the plaintiff indicated that:
·he pressed buttons to operate the dumping of rocks into the truck and the dumping of the rocks at site
·he drove about “a few hundred metres” after which he would come back and repeat the task
·he would assist others with tools, or carrying tools, about “once a week may be less”
·the truck would be cleaned out with high-pressure water about once a week which would take about half an hour.
100 When it was put to the plaintiff that essentially he was a truck driver delivering rock matter (albeit over a short distance) and that he was essentially a truck driver delivering machinery when employed by the defendant, the following evidence was given:
Q:“I understand the jobs were different but the function of going in a truck from point A to point B was, as far as that was concerned, the same idea as from the quarry job as it was with the job with DHH?---
A:From A to B, yes, I’ll agree to that.”[62]
[62]T54, L22-26
101 Under cross-examination, the plaintiff also accepted that on occasions he had to do some cleaning, sweeping and hosing. When queried about the sweeping, such was undertaken in front of the bowser where he had to fill up with fuel. Such sweeping involved the use of a yard broom with a long handle or, alternatively, a hose to water down the area. He anticipated that he would perform such sweeping duties about once a month.
102 Although the plaintiff accepted that sometimes he would use a hose which was of industrial strength, the work was not enjoyable and was very sedentary. He accepted that not all the tasks were sedentary, but most times they were.
103 The plaintiff confirmed that he had worked as a floor sander for ten years, and also had undertaken waterproofing and damp-coursing repair work for six weeks. He also stated that you did not need qualifications for those jobs.
104 Under cross-examination, the plaintiff again confirmed that he was driving an automatic truck at the quarry, which only required him to place the truck in drive and then drive it for about 200 metres or so. Again, when pushed about driving that sort of truck, and other trucks, the following evidence was given:
Q:“The point I put to Mr Jaross was that, it is his belief that he’s not driving a truck unless it’s a manual?---
A:It’s a total different game in the quarries. You’re not on the road, you’re not shifting gears constantly at (indistinct) speed gear box. You’re only going 200 metres from the chute to the heap and back.”[63]
[63]T59, L26-31
105 The plaintiff accepted that in May 2016, he suffered a crush injury to his right ring finger when he was working at the quarry. In particular, the following evidence was given:
Q: “… . Could you go on and explain how that happened, please?---
A: I smashed it with a crowbar.”
HIS HONOUR:
Q: “Smashed it with a what?---
A: Crowbar.
Q: How did you smash it with a crowbar?---
A:It – I took a big swing and I hit this hand on the wall because it’s - - -
Q:Yes. So the crowbar itself didn’t fall on the hand, as you brought the hand down, you hit that against a wall?---
A: Yes.
Q: And that crushed your finger?---
A: Yes.
Q: Yes.”
MR STOREY:
Q:“What were you doing wielding the crowbar with your right arm?---
A:Have to clean up behind conveyor and rocks were - put them (indistinct) they were compacted and one colleague was on – on the shovel and I grabbed the crowbar to crush it, to drop it, so that he can shovel.
Q: Was the conveyor belt jammed and you had to?---
A: Yes.
Q:You were clearing the rocks away, so the conveyor belt can continue running, is that - - -?---
A: Yes.
Q:Right. And was using the crowbar, was that something that you did – sorry, I’ll withdraw that. Did the conveyor belts often get jammed with rocks at the quarry?---
A: Yes, quite often.
Q:When that happened, were you often required to get up there and clean it out?---
A: Not always.
Q: Sometimes it was you, sometimes it was someone else?---
A:It would depend on how much rocks were there. If there was a lot of rocks, they would call everybody to help.
Q:So from time to time, you were required to climb up on the conveyor belt and help clear out the rocks?---
A: Yes.
Q:From time to time when you were doing that, are you often required to use the tools to help you do that task or is it always a crowbar?---
A: It was always crowbar sometimes shovel.”
HIS HONOUR:
Q: “Do you have to manually handle rocks in both hands?---
A: Yes.
Q:So you had to lift a rock and take it to another position. Is that right, or throw it somewhere?---
A: Yes.”
MR STOREY:
Q:“Did you throw them over the edge of the conveyor belt and they’d drop in below. Is that what happened?---
A: Yes.”[64]
[64]T60, L28 – T62, L5
106 The plaintiff explained how both hands were on the crowbar when he swung the crowbar to help move the rock. The plaintiff confirmed that he was off work for two months following such injury, which required surgery and the insertion of K-wires. After such period of work he returned to the quarry and initially performed light duties and, thereafter, returned to his previous work.
107 The plaintiff explained that he quit that job in May 2017 because there was “some bullying” – in particular, the supervisor was a “very aggressive person”. The plaintiff explained it was mostly the reason that he ceased work, but it also had to do to some degree with his left elbow injury.
108 The plaintiff described how he went for a holiday in the United States in or about April 2017, during which time he arrived in Los Angeles, hired a car and ultimately drove to the Grand Canyon and Las Vegas. He described stopping at Flagstaff in Arizona, where he stayed for two nights, and then on to the Grand Canyon, and on the way back he stopped at Las Vegas for one night. He accepted that he did the driving.
109 On arriving back in Australia, the plaintiff ceased work at the quarry, in part because of bullying by his supervisor, and in part because the job was too hard – when queried about being too hard, the plaintiff stated the cleaning was too hard for him. The plaintiff confirmed that he then worked for Cleanaway Waste Management for about week, which employment was obtained through Hays Recruitment. He was trained to drive an oil tanker, which required a heavy combination licence, which means a licence to drive a semitrailer. When queried about why he ceased that work, the following evidence was given:
MR STOREY:
Q: “[The work] requires changing gears with your left hand?---
A: Yes.
Q: You performed that job for a week?---
A:There was the theory and training safety for two days and then there was driving. I drove it for three days and then I found it too hard.
Q: What was hard about it?---
A:The gearbox was very hard to change. It was a very tight gearbox and I had to handle oil drums and that was too hard for me.”
HIS HONOUR:
Q:“On a gearbox of a semitrailer like that, how many gears are made up in the gearbox?---
A: I’d say roughly between 12 to 18.
Q:When you start from the stationary position and say you were going to head out on the Hume Highway or something, just for argument’s sake, how many gears do you have to move through to get to the point where you’re off and rolling, as it were?---
A: If it’s fully loaded then you go through probably 15 gears.”
MR STOREY:
Q:“What do you say was the reason that you stopped that job?---
A: It was too much gear changing and I had to lift oil drums.
Q:What was the upshot of that, that there was a lot of gear changing and lifting of oil drums?---
A: I was getting a sore arm.
Q: What did you do about that, when you were getting a sore arm?---
A: I quit.
Q: Did you see a doctor?---
A: I didn’t have to.
Q: You didn’t have to see the doctor?---
A: No.
Q: You just thought, ‘I don’t like the work so I’m going to quit’?---
A: No, it’s just too heavy on my arm.”[65]
[65]T69, L12 – T70, L9
110 Under cross-examination, the plaintiff gave evidence that he can lift things with his left arm but then he will have pain. He says he can lift groceries with both arms, but lifting with his left arm does cause pain, and he tends to favour his right arm rather than his left. The plaintiff confirmed that he is right handed.
111 The plaintiff was then shown some video film which ran for approximately thirty-one minutes, showing activities said to be of the plaintiff on 17 February 2017 and 25 February 2017. Very shortly into playing the video, the plaintiff stated in open court that it was not him. The film showed a man having similar dimensions to the plaintiff operating an electric mower, with the cord over his right shoulder and, on one occasion, emptying the grass catcher, using his left hand, on a garden nearby. Also, there was the use of a leaf sweeper.
112 Under cross-examination, the plaintiff accepted some of the video depicted him in an orange work vest. However, although accepting the footage was taken outside his house in Mannering Road, Glen Waverley and that it was his front nature strip and lawnmower, he denied that that was him in the film but, rather, his brother.
113 The plaintiff gave evidence that his brother lives in Mulgrave and is forty-four years of age, with the plaintiff being fifty years old. The plaintiff gave evidence not only did he recognise his brother, but that he recalls in February 2017 he gave his brother those outside jobs. He explained how his brother has Schizophrenia and, in part to help his self-esteem, and in part because some aspects of the work are too hard for him, he asked his brother to perform such work. His brother generally lives in Mulgrave. He distinguished his brother as being slightly bigger than him, and his brother has a shaved head, which he does not.
114 In particular, the following evidence was given:
MR STOREY:
Q:“Mr Jaross, you’ve just told His Honour that one of the reasons you say you gave this job to your brother to do, was because ‘it was too hard for me to do’?- - -
A: Yes. Well, not - - -
Q:In your affidavit, Mr Jaross, you specifically mention lawn mowing is something that you are able to do?---
A: Yes. But - - -.”
HIS HONOUR:
Q:“Can I ask this, what you saw in that video, and you say your brother was doing it, rather than you, bearing in mind what I’ve just heard, could you have done what was shown in the video?---
A: Yes, I could.
Q: Yes very well.”
MR STOREY:
Q:“And what was shown in the video, was a person, and I accept you say it wasn’t you, it was a person pushing and pulling a lawnmower with two hands?---
A: Yes.”
HIS HONOUR:
Q: “Is that yes, sorry?---
A: Yes.”
MR STOREY:
Q: “Sometimes with the left hand only?---
A: Yes.
Q: Sometimes with the right hand only?---
A: Yes.
Q: And changing hands freely?---
A: Yes.
Q:Also in the footage, at times, the person in the video was gathering the extension cord with their right hand?---
A: Yes.
Q: And getting it out of the way?---
A: Yes.
Q: And doing the same thing with their left hand?---
A: Yes.
Q:And sometimes in a sort of whipping motion, tucking under them?---
A: Yes.
Q:Tucking behind them with the person’s left hand and their right hand?- - -
A: Yes.
Q:Also shown in the film was a person lifting and carrying a full grass catcher from the back of the mower?---
A: Yes.
Q:And the person in the video was carrying the grass catcher in their left hand?---
A: Yes.
Q: Doing so freely?---
A: Yes.”[66]
[66]T77, L9 – T78, L10
115 The plaintiff was then queried about his treatment for his left elbow injury and he confirmed that he underwent six sessions of laser treatment, the last of which was probably 23 November 2013. He accepted that he has not had any laser treatment since then because “my doctor thinks it’s a waste of time”.[67]
[67]T82, L7-8
116 When queried about not mentioning to his treating general practitioner, Dr Wilk, anything about elbow pain over the period from 6 November 2013 to 10 May 2016, the plaintiff responded that he did mention the pain, and generally the doctor would ask how the pain was in his elbow. In this sense, the plaintiff accepted he never consulted with Dr Wilk for the express purpose of elbow pain, but it was something that was brought up in conversation.
117 Under examination, the plaintiff said he did recall when he was first prescribed Movalis, and then was taken to the clinical notes of his treating doctor which would suggest that the first occasion was on 17 October 2012. Again, it was put to him that on a further three occasions, 4 December 2013, 10 May 2015 and 16 March 2017, he was also prescribed Movalis, which the plaintiff answered “Must be”.[68]
[68]T87, L15
118 When it was put to the plaintiff that he had only seemingly been prescribed Movalis on four occasions from the available clinic over five years, he disputed that that was the only Movalis he had used and asserted he obtained Movalis from different doctors. He was not certain, but believed he may have got scripts from the Toorak Medical Centre and, in particular, from Dr Tarnawaski.
119 The plaintiff was uncertain, but did recall getting prescriptions for Serepax, which he accepted was an antidepressant, and there were possibly other medications – Stilnox or Somac. The plaintiff accepted that these types of medications were to help with his alcohol withdrawal.
120 The plaintiff accepted that prior to his problems with his left elbow he had a problem with drinking, which had been going on for many years. He also pointed out that his problems with drinking were worse when he was not busy working.
121 The plaintiff admitted that prior to his injury he had never participated in archery. Furthermore, he confirmed that he had tried kayaking in 2014, but it was too painful – but noted that prior to that, and certainly in the time leading up to his left arm injury, he kayaked with his brother a few times a year, which he enjoyed.
122 In answer to some questions from the Court, the plaintiff stated, in relation to his involvement with skiing, the last time he had been skiing was in about 2002 or 2003, about ten years prior to the injury occurring. He confirmed he went quite regularly every year and that he had been saving money to go skiing before he was injured.
123 The plaintiff also stated, in answer to a question from the Court, that he enjoyed riding a motorbike and had owned a motorbike before he had gone to the United Kingdom in 2009. In particular, he stated that when he came back to the United Kingdom he intended to buy a motorbike again and, indeed, after suffering his injury he tried to ride a motorbike that he had borrowed from his nephew, and he found such activity painful.
The re-examination of the Plaintiff
124 When re-examined, the plaintiff was asked that if he was fit and healthy in the elbow, what would he be doing in terms of his activities outside work, and he responded:
·going to the gym, because he had put a lot of weight on recently, to lift some weights, but cannot
·he would be driving a motorbike in which he has had an interest in since he was twelve years old and, in particular, he stated “I have many different motorcycles and that was my passion”[69]
·that he would buy a kayak.
[69]T94, L28-29
125 When re-examined about his evidence in relation to his brother being in the film, the plaintiff confirmed that his brother drives a Kia Rio, which was recognised by him in the front of the house. Ultimately, I permitted a photograph to be tendered by the plaintiff which was said to be a photograph of him and his brother.[70]
[70]See exhibit 6
126 Also, when queried about the material in his affidavit wherein the plaintiff asserts he can do mowing but it causes him pain, and his assertion that he could do the mowing as shown in the film, the following evidence was given:
Q:“So I want to ask you if you were doing the mowing like you saw your brother there, would you experience anything in your elbow and what if you did?---
§ He was fit and physically well before his left elbow injury.
§ He did enjoy the job with the defendant, albeit he was not happy with the way he was treated at various stages and being picked on. He left that job because there were not suitable duties for him there.
§ He found the job at the quarry which was boring and although he could generally cope with that job, there were duties that he said were too hard for his elbow. Reference was made to Transcript 47, Line 20, where the plaintiff agreed that the driving of the truck was not too bad but it was the other bits and pieces which caused difficulties and in particular, aggravating his elbow condition.
· Counsel submitted that the driving jobs subsequent to that with the defendant were not fulfilling and in particular, referred to his evidence about the enjoyment he obtained from the job with the defendant compared to driving the washing truck in his present employment. This evidence is referred to at paragraph 13(e) of these Reasons.
149 I also note that during his address, Counsel for the defendant did initially raise, perhaps obliquely, whether the plaintiff had a “permanent” impairment (leaving aside the issue of serious at this point). Ultimately, I understood Counsel for the defendant not to pursue such issue.[90] To avoid any doubt, I do find the plaintiff has suffered some permanent impairment as a result of his left epicondylitis.
[90]T142, L28-30
150 In this respect, I refer to the most recent medical evidence, that being the examination by the orthopaedic surgeon, Mr Duy Thai, on 31 May 2016 and the examination by the orthopaedic surgeon, Mr Stephen Doig, on or about 12 June 2017. It is to be noted that the defendant has no medical evidence beyond medico-legal examinations by the occupational physician, Dr Graham, on 6 August 2013 and by the occupational health consultant, Dr Ho, on 18 November 2013. The plaintiff was also examined, as I have recorded, by the rheumatologist, Dr Karna, for an impairment assessment on 2 September 2015.
151 As I have already recorded, Mr Thai diagnosed the plaintiff to be suffering an ongoing left elbow common extensor tendinopathy which had “stabilised”. In particular, Mr Thai opined that there are certain restrictions in relation to the left arm and that the plaintiff “is not expected to return to his pre-injury role and his incapacity will be permanent”.[91] Mr Doig was of the opinion that the plaintiff was suffering from a “chronic lateral epicondylitis”.
[91]See exhibit 2 at page 44 PCB
152 Given such recent opinions and indeed, the effluxion of time since the onset of symptoms, I am satisfied on the balance of probability that any impairment in relation to the left elbow is of a permanent nature within the meaning of s134AB of the Act.
153 In my view, the critical issue is whether any permanent impairment suffered by the plaintiff in his left elbow is “serious” within the meaning of the narrative test.
154 The following matters must be borne in mind:
(a)As stated by the Court of Appeal (consisting of Osborn and Beach JJA) in Ellis Management Services Pty Ltd v Taylor[92] at paragraphs [57]-[59]:
[92][2013] VSCA 326
“The test of what is a ‘serious injury’ is subjective in the sense that the effect on a bodily function of the particular applicant must be considered and the consequences of the injury must be serious to that applicant.[93]
[93]Reference was made to Humphries & Anor v Poljak [1992] 2 VR 129
Nevertheless the relevant assessment must be made objectively by the court. It is the judge’s opinion as to the seriousness of the impairment or loss which is determinative, not the opinion of the applicant or medical practitioners.[94]
[94]Reference was made to Humphries & Anor v Poljak (op cit) at 137
The judgment in issue is an evaluative one involving a synthesis of matters of fact and degree. Such a judgment necessarily involves a consideration of detailed facts and a weighting of cumulative factors. Different minds might reasonably reach different conclusions as to where the overall seriousness of the consequences fell within a range … .”;
(b) Also, the Court of Appeal in Ellis stated, at paragraph [52]:
“After all, it is to be remembered that when assessing pain and suffering consequences one needs to have regard to the whole of the individual (background, abilities, skill sets and the like), not merely some worker of average or uniform characteristics.”;
(c)I also refer to the Court of Appeal decision of Haden Engineering Pty Ltd v McKinnon,[95] wherein Maxwell P set out various principles in evaluating the “pain and suffering consequences”, I take account of all those considerations. In particular, I refer to paragraphs [14]-[15] under the heading “The disabling effect of pain”, wherein Maxwell P states:
[95](2010) 31 VR 1
“As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained’.[96]
[96]Reference was made to Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]
As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account.15[97] What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her]’”;[98]
[97]Reference was made to Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph [47]
[98]Reference was again made to Dwyer v Calco Timbers Pty Ltd(No 2) (op cit) at paragraph [25]
(d)I also again refer to Ellis, wherein the Court of Appeal expanded on the earlier comments in Haden, when it stated:
“As has repeatedly been held, the inability of a worker to engage in employment which he or she enjoyed is a matter that may properly be taken into account in assessing pain and suffering and loss of enjoyment of life. Similarly, frustration at being unable to engage in former activities (work or leisure) may be a matter properly to be taken into account in assessing pain and suffering consequences.”[99]
[99]See Ellis Management Services Pty Ltd v Taylor (op cit) at paragraph [35]
This concept was enlarged upon by the Court of Appeal at paragraph [43]-[44], when it was stated:
“Whether it be the loss of pleasure in doing something one used to be able to do or frustration in being unable to do something one used to be able to do, and whether or not the relevant activity is work related, such loss of pleasure or feeling of frustration falls to be considered when assessing the pain and suffering consequences of a particular injury. Further, the loss of pleasure or feeling of frustration may be all the more serious if it is suffered in circumstances where the range of activities that a person may or may not be able to engage in but for his or her injury is more limited than it might be for a person with a different skill set.
While the appellant’s argument with respect to ground 1 was initially expressed in broad terms (namely that loss of earning capacity consequences could not be relied upon by a worker seeking leave to commence proceedings for the recovery of damages for pain and suffering only), in argument the appellant accepted that loss of the ability to engage in particular forms of employment may be relevant to the issue of pain and suffering consequences in the following ways:
(a) First, pain may in fact be experienced at work or while performing particular types of work.
(b) Secondly, the inability to perform certain work may be indicative of what injury has in fact been sustained by the worker.
(c) Thirdly, a worker might suffer a loss of enjoyment of life in being unable to perform work which he or she used to enjoy. Under this heading there may also be pain and suffering consequences in respect of any frustration of a worker at being unable to perform activity that he or she used to be able to perform.”
155 After a consideration of all of the evidence, and bearing in mind the legal principles to which I have referred, I make the following findings of fact:
(a)The plaintiff is a fifty-year-old long-term divorcee with no children. He is largely estranged from other members of his family. He has suffered from depression intermittently over the years, and since about 2000, has taken medication for this condition;
(b)He was born in Poland and came to Australia when he was fifteen years old and ultimately completed Year 11 of high school;
(c)On leaving school, he commenced a surveying and mapping course, but did not complete such studies. He then drove taxis and performed some plastering work and also worked as a floor sander, interspersed with various driving and warehouse work;
(d)From about March 2006 to July 2007, he was in prison for drug offences – the use of Ecstasy – after which he went overseas to try and start over. From about 2009 to 2011, he worked as a warehouse storeman in the United Kingdom and later, in 2011, he returned to Australia, working, initially, for a few months driving a recycling truck and later, working for Nationwide Towing, performing towing work for the RACV;
(e)The complainant commenced employment with the defendant in or about October 2011, and such employment involved driving trays and the transportation of heavy items and machinery, such as excavators. In particular, most of his work required him to go to Coates Hire, where heavy equipment, such as heavy rollers, cherry pickers, scissor lifts and excavators, were either driven onto his truck or winched on, after which he would deliver such equipment to designated sites around Melbourne or the outer aspects of Melbourne, such as Wonthaggi.
In particular, such work involved utilising a manual gear-box system which involved many gears and the “dog and chain system” – that is to say, the chains were placed over the items on the truck, and then tightened and secured using the “dog”;
(f)I accept that the plaintiff enjoyed this type of work and, in particular, enjoyed working with heavy equipment, which required him to be hands-on and also to be able to drive to various parts of the suburbs, and sometimes further;
(g)In or about 2013, he commenced having problems with his left arm, causing him to seek treatment from the general practitioner, Dr Felix Wilk, and also the general practitioner, Dr Tarnawaski, together with some physiotherapy from the physiotherapist, Mr Hew Gibbs;
(h)As I have already recorded, there is no issue (and, indeed, I have expressly found) that the plaintiff suffered a left epicondylitis arising out of or in the course of such employment with the defendant. Furthermore, as I have already recorded, I find that such injury has given rise to permanent impairment within the meaning of s134AB of the Act;
(i)Consistent with the evidence of the treating general practitioner, Dr Wilk, who last saw the plaintiff on 4 May 2017, and the evidence of the medico-legal orthopaedic surgeon, Mr Doig, who examined the plaintiff on 13 June 2017, I find a consequence of such impairment to be that any strenuous or forceful activities involving the left arm are very painful for the plaintiff – whether such activities arise out of his work, social, domestic and/or recreational activities. That is not to say that the plaintiff cannot use his left arm as, clearly, he accepts he can, within certain limitations;
(j)In particular, I find that the plaintiff is incapable of performing work involving heavy manual use of his left arm, and in the context of truck driving, is incapable of regularly being required to unload and load trucks in a manual way – particularly the use of the so-called “dog-and-chain” system. Furthermore, I find that the plaintiff is incapable of performing work where he has a manual truck gearbox involving the use of many gears. Because of the limitations to which I have referred, I do accept that the plaintiff is largely limited to performing working in an automatic truck, where little manual work is involved. I accept, also, that by being incapable of doing the type of work that he performed with the defendant, the plaintiff does have some loss of enjoyment in his work, as he finds the more limited type of work, such as at the quarry or driving the water truck, to be “boring”.
I should also add that I do not accept the submission of counsel for the defendant that the quarry work was akin to the work with the defendant, in that he was driving large trucks and was frequently involved with manual work, such as removing rocks from the conveyor belt. Although I accept the trucks may well have been large, the plaintiff only had to drive a couple of hundred metres from where he obtained the rocks to where he deposited the rocks, and most of the work was done by the pushing of buttons. To the extent that he did manual work and certainly on occasion he was required to do such work, he made the point that sometimes such work gave rise to left elbow pain. There was not a need of constant manual handling as part of the core responsibilities of that job.
I also find that, seemingly, the plaintiff has only had a limited number of recreational interests – in particular, he had a passion for motorbikes, went kayaking with his brother several times a year, and also had demonstrated an interest in skiing up to the early 2000s. There is some force in what the defendant submits, that he was not actively pursuing these recreational events (save for the kayaking) – up to and immediately prior to his injury. However, the plaintiff did impress me that these recreational interests had been something that he had enjoyed prior to the injury and something he wished to continue. I do find that as a consequence of the left arm impairment, he is incapable of kayaking, performing skiing and, indeed, the sustained use of motorbikes. Although he had not performed any archery prior to the injury, again, I accept that this was a general interest that he had held and wished to pursue at some time. I accept his evidence that on the one occasion since the injury that he has tried archery, he was incapable of performing such activity because of the left elbow impairment.
I also accept that there is some impairment of his day-to-day domestic activity in that, although he can use his left arm, he is careful as to what he lifts and carries in order to avoid any aggravation of the left elbow. However, I do accept that within those limits, he can perform his day-to-day activities and, indeed, perform activities such as lawn mowing and the like, subject to him tempering the frequency of the activity;
(k)I find, of course, consistent with his evidence, that he can drive a vehicle. Something was made of his “long” driving trip in the United States, which is to be noted was in an automatic car, during the course of a holiday. I put little weight on that aspect of the matter;
(l)In relation to treatment, I accept that in the early years of his condition, the plaintiff underwent two injections and two sets of repeated laser treatment of the left elbow, which made little or no improvement on his condition. In this respect, I accept the evidence of the plaintiff that he was informed there is nothing much more that could be prescribed for him. The plaintiff gave evidence that he presently takes only two Panadeine per week when his arm is “good” and will take up to six Panadeine per week when his arm gives rise to symptoms. It was put with some force by counsel for the defendant that the plaintiff had little or no treatment for his left elbow since those early days and, in particular, the medical notes at the Valewood Medical Clinic over the period from 6 November 2013 to 10 May 2016 do not suggest any attendance with complaints of pain in the elbow area.
I do refer to the clinic note made by Dr John Tai on 10 May 2016, where he records, amongst other things, that the plaintiff has been “managing flares on and off for years – chronic issue now”.[100] Of course, such a note is consistent with the evidence of the plaintiff that he has had various flare-ups over the years brought about by overusing the left arm, which gave rise to acute symptoms in his left elbow. I accept the submissions of Senior Counsel for the plaintiff that there is “not a lot in that absence of complaints when the evidence is of a sort of chronic longstanding condition”.[101] Furthermore, I also accept that the plaintiff, when he did go to the doctor for other matters over that period, there were occasions where some discussion about his elbow took place, but it was never the reason for the attendance.
[100]See exhibit “B”
[101]T159, L24-25
156 Although I accept that some of the consequences of the impairment are less dramatic than others, I consider that it must be generally kept in mind that the impairment of his left elbow impacts in one way or another on his working, recreational and domestic life.
Conclusion
157 In making the evaluative judgment involving a synthesis of matters of fact and degree, I acknowledge that the circumstances of his matter are finely balanced. However, after a consideration of all the evidence, I am satisfied that in the circumstances of this matter and the consequences of the injury to this plaintiff, the impairment suffered by him, when judged by comparison with other cases in the range of possible impairments, may be fairly described as “being more than significant or marked and as a being at least very considerable”.
158 Accordingly, I grant the application for the plaintiff to bring common law proceedings for “pain and suffering damages” in respect of his left arm injury suffered by him during the course of his employment with Dandenong Heavy Haulage Pty Ltd.
159 I will hear the parties on the question of costs.
- - -
160
Annexure “A”
1 The plaintiff tendered the following material:
Exhibit 1
· Affidavits of the plaintiff sworn on 22 November 2016 and 15 August 2017
(Such material found at pages 18 to 28 of the Plaintiff’s Court Book (“PCB”)).
Exhibit 2
· Medical report from the physiotherapist, Mr Hew Gibbs, dated 16 June 2004
· Report of the general practitioner, Dr J Tarnawaski, dated 19 May 2015
· Reports of the general practitioner, Dr Felix Wilks, dated 10 September 2013, 30 August 2014, 30 April 2015 and 1 June 2017
· The medico-legal report of the orthopaedic surgeon, Mr Duy Thai, dated 12 June 2016
· The medico-legal report of the orthopaedic surgeon, Mr Stephen Doig, dated 12 June 2016
· The medico-legal report of the psychiatrist, Dr Nigel Strauss, dated 15 June 2017.
(All such material found at pages 29 to 57 PCB).
Exhibit 3
· The plaintiff’s Injury Claim Form
(Such material found at pages 58 to 59 PCB).
Exhibit 4
· Ultrasounds of the plaintiff’s left elbow undertaken on 21 May 2013 and 24 September 2014.
(Such material found at pages 60 to 61 PCB).
Exhibit 5
· Worker’s Injury Claim Form
Exhibit 6
· Photograph of plaintiff and brother.
2 The defendant tendered the following material:
Exhibit A
· The reports of the occupational physician, Dr Graham, dated 6 August 2013 and 3 October 2013
· The reports of the occupational physician, Dr Ho, dated 19 November 2013 (two reports)
· The reports of the rheumatologist, Dr Roy Karna, dated 2 September 2015 and 10 September 2015
· Medical Panel Certificate and Reasons of Opinion dated 10 November 2015
(All such material found at pages 2 to 35 of the Defendant’s Court Book (“DCB”)).
Exhibit B
· Consultation records of the plaintiff attending the Valewood Clinic
Exhibit C
· DVD of footage dated 17 February 2017 and 25 February 2017 said to be that of the plaintiff
Exhibit D
· Certificates of Capacity dated from 4 July 2013 to 13 November 2013
(Such material found at pages 56 to 77 DCB).
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