Kollington v Veritas Recruitment Essendon Pty Ltd
[2023] VCC 2220
•8 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-02251
| PETER ALEXANDER KOLLINGTON | Plaintiff |
| v | |
| VERITAS RECRUITMENT ESSENDON PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 November 2023 | |
DATE OF JUDGMENT: | 8 December 2023 | |
CASE MAY BE CITED AS: | Kollington v Veritas Recruitment Essendon Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2220 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – credit – consequences
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:TTB SMS Pty Ltd v Reading [2020] VSCA 203; Ellis Management Services v Pty Ltd v Taylor [2013] VSCA 326; Church v Echuca Regional Health [2008] VSCA 153
Judgment: Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards KC with Ms S A Lean | Ryan Carlisle Thomas |
| For the Defendant | Mr D Churilov | Russell Kennedy |
HIS HONOUR:
Introduction
1In this proceeding, the plaintiff seeks the leave of the Court to commence a common law proceeding for pain and suffering damages on the basis of a claimed “serious injury” within the meaning of s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). Specifically, the plaintiff claimed to have suffered a “serious injury” by reason of a physical injury to the left upper limb (which I shall refer to interchangeably as left the hand and wrist).
2To establish a “serious injury”, the plaintiff must prove that he has suffered a permanent serious impairment or loss of a body function that is productive of “very considerable” pain and suffering consequences to him. The evaluation required to resolve the dispute in this proceeding requires a comparison of the plaintiff’s claimed impairment consequences, not just with other impairments of the left upper limb, but also with other types of physical impairment that may be suffered.[1]
[1]TTB SMS Pty Ltd v Reading [2020] VSCA 203 at paragraph [31] (“Reading”).
3In a consideration of “serious injury”, I am also required to consider the range of possible impairments and impairment consequences, including those that come before the courts and those that do not.
4Against that background, the current proceeding is an example of what might be described as a “range case”. There are some injuries that are clearly productive of “very considerable” consequences and some injuries that are clearly not. Then there are injuries and impairments that fall somewhere in the middle of that range, and I consider this to be an example of such a proceeding.
Background
5The following background and chronology of some relevant dates are extracted from the objective evidence and are not contentious.
6The plaintiff in this proceeding, Peter Kollington, was born in 1963 and is now 60 years of age. He is divorced but, as part of an amicable divorce, he lives with his ex-wife in a property in Armidale in New South Wales.
7The plaintiff is, by qualification, a motor mechanic, although he has undertaken other employments during his working life. He last worked as a mechanic during 2016 but left that job due to family stressors.
8The plaintiff was working for the defendant, who ran a labour hire company, at a commercial building site on 28 February 2017, when he fell from a step, put his left arm out to break his fall, and suffered injury to the left wrist (“the accident”).
9The plaintiff is left hand dominant. He has a relevant history of unrelated medical conditions that have occurred or been suffered by him, both before and after the accident, but no history of any previous left upper limb injury.
10After the accident, the plaintiff was treated at the Footscray Hospital (Western Health). An x-ray was arranged and reported as finding an avulsion fracture of the ulnar styloid with minimal displacement and a “likely” undisplaced distal radial fracture.[2] The fracture was treated non-operatively, followed by physiotherapy.
[2] Amended Plaintiff’s Court Book (“PACB”) 52.
11In July 2017, the plaintiff attempted a return to work, but that did not last long. He then obtained alternate office-type employment.
12From December 2017, the plaintiff commenced attending Dr Carmen Lei as his general practitioner. Dr Lei oversaw ongoing conservative treatment.
13By November 2018, Dr Lei recorded the plaintiff’s left wrist/hand as being pain free at rest but still experiencing pain when lifting objects, and described as a shooting pain that caused him to drop things.[3]
[3] PACB 46.
14Next, by April 2019, the plaintiff was again living in Queensland, having moved from Queensland to Victoria for family reasons shortly before the accident. He commenced attending Dr Sureskumar Sivakumar at the Meadowbrook Medical Centre from 30 April 2019 for a range of medical issues, including for the left wrist. On 15 May 2019,[4] he underwent an MRI scan of the left wrist on referral from Dr Sivakumar.
[4] PACB 55.
15There was then ongoing attendance at the Meadowbrook Medical Centre through until 28 April 2020,[5] but no recorded mention of the left wrist. The attendances were for several other medical conditions.
[5] Amended Defendant’s Court Book (“DACB”) 87.
16From 10 June 2020, the plaintiff was attending the Logan Central Medical Centre for general practitioner care. He attended that clinic until 25 March 2023[6] for several health complaints but did not mention his left wrist to any doctor at that clinic.
[6] DACB 143.
17In December 2020, the plaintiff was the victim of an assault when he was run down by a person riding a motorcycle while he was walking his dog in a park in Queensland (“the assault”). He suffered injuries because of the assault, including a broken leg, neck injury and facial injuries.
18On 14 June 2022, Dr Vincent Cheng at Browns Plains Family Practice (QLD) referred the plaintiff to Brisbane Spine Clinic for neck pain following the assault.[7]
[7] DACB 144.
19In early 2023, the plaintiff relocated to Armidale in New South Wales. From 29 March 2023,[8] he commenced treatment with Dr Jason Averay at the Rusden Street Medical Practice in Armidale, for a range of medical conditions. He presented to Dr Averay on 11 July 2023, when Dr Averay recorded that he “[h]as a letter from an insurance company re: existing hand injury, requesting rationale for gaps in therapy/management between 2018 until now”.[9]
[8] DACB 96.
[9] DACB 98.
20Subsequently, Dr Averay referred the plaintiff to New England Hand Therapy, where he has been seen on two occasions[10] for treatment by Katie Street, an occupational therapist.[11]
[10] Ms Street recorded two occasions; in oral evidence, the plaintiff said he had seen her three times.
[11] PACB 49.
The evidence
21The proceeding was conducted in the usual manner. The plaintiff tendered a court book comprising affidavits, medical reports and documents relied upon by him. The defendant, similarly, tendered a court book comprising medical reports, clinical records and documents relied on by it. In addition, the defendant played in Court, and tendered, covert video surveillance obtained of the plaintiff at various times and dates in March 2023, June 2023 and August 2023.[12] The parties otherwise made oral submissions as to the evidence and the factual findings urged on the Court.
[12]Exhibits D1, D2 and D3.
22I have considered all the tendered evidence, the transcript of the plaintiff’s oral evidence and the parties’ submissions. I shall refer to that material to the extent necessary.
The parties’ contentions
23The areas of dispute in this proceeding are relatively narrow and the parties’ contentions can be briefly summarised.
24Commencing with the plaintiff, he submitted the evidence established that he suffered injury to the left wrist because of the accident. He said that the injury is best described as an un-displaced fracture of the left wrist which caused the aggravation of previously asymptomatic arthritis in the left wrist.
25The plaintiff submitted that the left wrist injury now precluded him from returning to his previous vocation as a motor mechanic. He also contended that the Court should accept the pain and suffering consequences deposed to by him in his affidavits, at least in the broad sense, and that the tendered video surveillance did not detract from his evidence.
26In short, the plaintiff submitted that the loss of employment opportunities in combination with the various claimed restrictions for use of the left wrist/hand were such that he had suffered a “very considerable” impairment consequence.
27For this proceeding, the defendant accepted that the accident occurred and that it caused an injury to the plaintiff’s left wrist/hand, but it did not accept that the consequences of that injury persist or, if they persist, that they were productive of “very considerable” impairment consequences.
28Next, the defendant submitted that there was some uncertainty regarding the ongoing physical injury, which was relevant for an assessment of the claimed consequences, because the sorts of consequences claimed by the plaintiff were not backed up by the medical evidence.
29The defendant submitted that there was a minimal loss of range of movement in the left wrist, and perhaps some physical basis for an ongoing injury, but there was not a sufficient basis to support the range of consequences claimed by the plaintiff.
30The defendant raised as an issue the credit of the plaintiff because of what it submitted was an incomplete history of unrelated injuries and impairments in his evidence, and because of the tendered video surveillance. It highlighted what the plaintiff retained as demonstrated on the video surveillance. In what it described as an overarching submission,[13] it contended that the plaintiff’s left wrist/hand injury was simply not productive of a “very considerable” consequence.
[13] Transcript (“T”) 51, Line (“L”) 28.
31Finally, the defendant also highlighted the limited use that the Court could make of the plaintiff’s inability to perform his trade as a mechanic (if the Court made that conclusion) in circumstances where the claim was confined to pain and suffering only.[14]
[14] Ellis Management Services v Pty Ltd v Taylor [2013] VSCA 326 at paragraph [35] (“Ellis”).
Credit
32As mentioned, the defendant raised as an issue the credit of the plaintiff. It submitted that the plaintiff had minimised his unrelated medical conditions in his affidavits and when seen by the doctors. It is submitted that he had exaggerated the true extent of any ongoing left-hand symptoms.
33The plaintiff presented as a forthright, direct and reliable witness during his oral evidence. Having said that, as I shall come to, what was seen on the video surveillance did suggest that he may have put his best foot forward in his affidavit evidence and when attending on doctors and describing any symptoms from his left wrist. In other words, if the video surveillance depicted what he can do on an average or day-to-day basis, then it is somewhat at odds with his evidence and what he said in his affidavits.
The plaintiff’s affidavit evidence
34Turning then to his evidence, the plaintiff first gave sworn evidence of the accident and relevant consequences in an affidavit sworn by him on 9 December 2022.[15]
[15]PACB 10.
35Relevant to his background and any previous health problems, the plaintiff said in that affidavit:
“5.Over the years, I have worked as a motor mechanic, electronics technician, bus driver, customer service assistant, laborer and cleaner.
6.I started working for the Defendant on or about 26 February 2017. I was contracted out to Hickory Building Systems. They built and installed modular kitchens and bathrooms. I worked as a labourer at their factory.
7. I note the following in terms of other health:
(a) I have type 2 diabetes, which I manage with diet and medication.
(b) I have previously experienced aches and pains in various parts of my body including my neck and right shoulder.
(c) I fractured my right ring finger in 2015. This improved with time.
(d) I have previously experienced anxiety and depression. This started after a difficult upbringing and was exacerbated by a number of life stressors. I have also been diagnosed with bipolar disorder and ADHD at times, although I am not sure that these diagnoses are accurate.
(e) In December 2020, I was attacked by a man riding a motorcycle. I sustained various injuries as a result, including a fractured jaw, shattered teeth, neck pain and a broken right tibia and fibula. I now have a plate and screws in my right leg. I am having ongoing treatment to manage these injuries, particularly dental treatment.
(f) In or about July 2017, I was hit by a steel rod in the head. I had a slight concussion as a result, however I recovered well from this incident.” [16]
[16]PACB 11.
36The plaintiff then set out the history of treatment and post-accident employment before setting out his claim of consequences as follows:
“Consequences
14. I currently experience the following symptoms:
(a) Ongoing pain in my left wrist.
(b) Numbness in my left wrist.
(c) Restricted movement in my left wrist. I find that bending my wrist causes my hand to lose power.
(d) Reduced grip strength in my left hand.
15. As a result of the injury to my left upper limb, I have difficulty:
(a) Pushing and turning a shopping trolley.
(b) Pushing a lawnmower.
(c) Turning my wrist on an angle.
(d) Performing any tasks involving repetitive use of my left upper limb.
(e) Operating hand tools, as the vibration leads to increased pain.
(f) Carrying a heavy plate or a mug.
(g) Fishing. I previously enjoyed fly fishing, however I am no longer able to do this.
(h) Sleeping. My wrist often disturbs my sleep.
(i) Making a fist when my wrist is bent.
(j) Performing any tasks involving repetitive pushing and pulling.
(k) Performing any tasks involving repetitive and/or heavy lifting.
(I) Using a computer mouse for long periods of time.
(m)Typing for long periods of time.
(n) Putting any pressure or weight on my wrist, particularly when it is on an angle.
(o) Throwing or catching a ball.
(p) Carrying heavy bags of groceries. I therefore try to pack the bags more lightly now.
(q) Playing tennis or squash. I enjoyed these activities in the past, however I no longer do them.
(r) Gardening. It is difficult to perform tasks such as digging and weeding. I am limited in my ability to garden now.
(s) Lifting and pouring from a full kettle.
(t) Driving for long periods of time. I now need to rest my arm in my lap on a long drive. It is hard to drive a manual car.
(u) Performing any resistance work.
(v) Working on cars. I used to be able to do this with ease. I now find it hard to change a tyre, which I find upsetting.
(w) Working. I have not been able to return to physical work, which has limited my job options considerably.” [17]
[17]PACB 13-14.
37The plaintiff then swore a further affidavit on 6 November 2023,[18] which said more about the assault, when he said:
“5.I refer to paragraph 7(e) of my previous affidavit. I required further surgery on 7 June 2023. This involved a right knee arthroscopy and the removal of a tibial plate. I am recovering well from this surgery. I continue to require psychiatric treatment in relation to this assault and my dental work is ongoing.” [19]
[18]PACB 15.
[19]PACB 16.
38In the further affidavit, the plaintiff set out his ongoing treatment and consequences as follows:
“Treatment and Progress
6. Since swearing my last affidavit, I have had the following treatment:
(a) Attendances upon GP, Dr Averay at Rusden Street Medical Practice. I first attended him on 29 March 2023, after moving to Armidale.
(b) Hand therapy with Katie Street at New England Hand Therapy. Katie has given me a support for my arm, which we are trialing and it will be modified as needed.
(c) Further scans of my left hand and wrist. My most recent scan took place on 23 October 2023. I understand that this showed "chronic trabecular changes and multiple cysts in the distal radius and carpal bones, which suggested degenerative arthropathy and longstanding changes to possible microtrauma or vibrational stress injury”. I also underwent a scan on 8 September 2023, which I understand showed “mild to moderate intercarpal joint degenerative changes”. There was also mild degenerative change in the bones of my hand”.
7.I also note that following my injury, I had hand therapy with Nick Antoniou, as well as follow up attendances at Western Health.
8. I currently have the following treatment in relation to my left upper limb:
(a) Attendances upon my hand therapist, Katie Street - as needed.
(b) The use of a wrist support.
(c) Regular use of hot/cold packs.
(d) Regular use of dencorub and voltaren.
(e) Regular use of Panadol.
9.I currently try to manage my condition by limiting activities that cause flare ups.
Employment
10.After swearing my last affidavit, I continued to do some clerical work for a recruitment company. I did this until we moved to Armidale. I have struggled to find work in Armidale, which is suitable. There are limited opportunities here, particularly as the area is more rural. Further, I am not able to do a lot of my pre-injury jobs. For example, I no longer feel capable of working as a motor mechanic, electronics technician, bus driver, labourer and cleaner. The scope of what is available to me is therefore much narrower. As a result, I have been put under a lot of financial stress as a result of my injury.
Consequences
11. I continue to experience the following symptoms:
(a) Ongoing pain in my left wrist, hand and forearm. It often feels as though I have been smacked on the back of my hand with a hammer.
(b) Numbness in my left wrist.
(c) Restricted movement in my left wrist. I find that bending my left wrist causes my left hand to lose power. I find it difficult to lift my wrist up.
(d) Reduced grip strength in my left hand.
(e) I have a ganglion on my left hand.
(f) Feelings of anger and frustration.
12. As a result of the injury to my left upper limb, I have difficulty:
(a) Pushing and turning a shopping trolley. I have had to modify the way that I do this. I now push the trolley using the palm of my left hand.
(b) Pushing a lawnmower. I have had to purchase an electric starting, selfdriving lawnmower, as I was finding it too challenging to use my old lawnmower. In the past, l have also had to pay people to mow my lawn for me.
(c) Turning my wrist on an angle.
(d) Performing any tasks involving repetitive use of my left upper limb. I find that this quickly leads to increased pian. I therefore have to choose my activities carefully and continually ensure that I respect my pain boundary. If I do not, I experience quite significant and incapacitating flare ups.
(e) Operating hand tools, as the vibration leads to increased pain. I also find it very painful to operate hand tools, which cause tortional movement of my wrist. In addition to this, I find it very difficult to use a hammer with my left hand.
(f) Carrying a heavy plate or a mug. I have to be careful about the angle of my wrist/arm when I do this, or this causes pain.
(g) Fishing. I previously enjoyed fly fishing, however I am no longer able to do this.
(h) Sleeping. My wrist often disturbs my sleep. As a result of my disturbed sleep, I am often tired during the day. I often experience pain in my wrist when I wake.
(i) Making a fist when my wrist is bent.
(j) Performing any tasks involving repetitive pushing and pulling.
(k) Performing any tasks involving repetitive and/or heavy lifting.
(l) Using a computer mouse for long periods of time. I found this difficult in my administrative work. I therefore trained myself to use my right hand when using the mouse.
(m) Typing for long periods of time. I now often use wrist supports. If I do this for a long period, I experience increased pain.
(n) Putting any pressure or weight on my wrist, particularly when it is on an angle.
(o) Throwing or catching a ball. This quickly leads to increased pain. I now kick the ball to my dog, instead of throwing it.
(p) Walking my dog. I now usually loop the lead through my right hand, instead of my left hand. I try to limit the amount of tugging that my left wrist is exposed to, as this is painful.
(q) Carrying heavy bags of groceries. I therefore try to pack the bags more lightly now. I can carry an item if my wrist is lined up and straight up and down, however horizontal weight bearing Is very difficult for me.
(r) Playing tennis or squash. I enjoyed these activities in the past, however I no longer do them. They are too difficult and painful now.
(s) Gardening. It is difficult to perform tasks such as digging and weeding. I am limited in my ability to garden now. I also find it hard to use tools such as a trowel.
(t) Lifting and pouring from a full kettle. I now usually use both hands to do this now. My right hand takes most of the weight.
(u) Driving for long periods of time. I now need to rest my left arm in my lap on a long drive. It is hard to drive a manual car. I drive an automatic car now.
(v) Performing any resistance work.
(w) Working on cars. I used to be able to do this with ease. I now find it hard to change a tyre, which I find upsetting. I now need to pay to get my car serviced and repaired.
(x) Working. I have not been able to return to physical work, which has limited my job options considerably. This is a big part of the reason that I have not been able to secure work in Armidale.
(y) Using a screw driver. I am no longer able to do this, as it feels as though my wrist gives up and won’t work properly.
(z) Cooking and cleaning. I have had to modify the way that I perform various tasks. I now struggle to stir, use a whisk and lift heavy pots and pans. I try to cook more simple meals now. I also find that cleaning causes increased pain. I now use two hands when I am holding the vacuum. Tasks such as making the bed are also difficult.
(aa) Performing repairs around the house. I used to be very handy, however I find it challenging to do odd jobs around the house. For example a wheel recently needed to be replaced on a sliding door at home. I had to arrange for someone to fix this, whereas this was something I could have done easily in the past by myself.” [20]
[20]PACB 16-20.
39The plaintiff also relied on an affidavit from his ex-wife, Ms Geraldine Kollington, sworn on 6 November 2023.[21] I have considered the limited evidence in that affidavit. It provided some support for the symptoms as deposed to by the plaintiff, but overall, her evidence is vague, hearsay and not of great assistance.
[21]PACB 21.
The plaintiff’s oral evidence
40Returning to the affidavits of the plaintiff, he was cross-examined about what he had said in his affidavits and to the doctors relevant to his medical history and also to consequences from the left wrist injury.
41The plaintiff was cross-examined at some length about oversights in his affidavits regarding his medical history, as compared to what was disclosed in clinical records. In particular, he was cross-examined about the fact that, in mid-2010, Dr Jeet George at the Tamborine Mountain Medical Centre had referred him to Dr Neil Cleaver, an orthopaedic surgeon, for ongoing neck and right arm pain. He was cross-examined about correspondence from Dr Cleaver[22] in which the prospect of neck surgery was discussed.
[22]DACB 129-130.
42The plaintiff accepted it was an oversight[23] not to say more about his pre-existing neck problem in his affidavits, but he explained that he didn’t think much of his previous neck problems because those neck issues resolved until he again had symptoms in his neck after the assault. While it is an omission from his affidavits, it is not one upon which I place much weight, because there is no objective evidence of any neck symptoms or impairment in the several years before the incident.
[23]T 9, L 11.
43The plaintiff was also cross-examined about ongoing neck symptoms since the assault, requiring a referral to the Brisbane Spine Clinic.[24] He accepted he had been to that clinic for ongoing neck symptoms. Again, that could have been better explained in his affidavits, but is not a major credit issue, where there is no objective evidence of significant ongoing neck symptoms or impairments.
[24]T 19.
44The plaintiff was also cross-examined about his longstanding psychiatric state and whether that condition had caused him to cease work as a mechanic in 2016. It was put to him that he took stress leave from the mechanic job with Auto King in 2016. He agreed that was correct.[25] The plaintiff explained that he took personal leave because his stepdaughter had cancer and his family decided to move to Victoria. He accepted that was a stressful time for him.
[25]T 23, L 20.
45He was broadly cross-examined about his overall psychiatric condition. The plaintiff maintained that his condition had been getting better, because since the assault he had psychological treatment which had “helped a great deal”.[26]
[26]T 25, L 6-7.
46Moving to the left wrist, he was cross-examined by what was revealed from the clinical notes, some of which I have set out in the background section of these reasons. Specifically, he accepted that there were significant gaps when he had no treatment or made no complaint to a general practitioner regarding his left wrist. He accepted that if there were concerns affecting his left wrist during those times then he could have reported it to a general practitioner but said “it is true, but it doesn’t take into account that I was run over, sort of, in 2020 and the injuries from that took prevalence”[27] and that made “the wrist seem a minor problem”.[28]
[27]T 26, L 18-27.
[28]T 26, L 28.
47It was then put to him as follows:
Q: “Right. So in comparison to the injuries from the run-over incident, your left wrist problems were minor and, I suggest to you, paled into insignificance. Do you accept that?---
A: Um, well, that's a couple of things. One, because the other injuries actually using the wrist, ah, which would cause issues, ah, was not happening. Um, there was no work going on, not any manual labour or anything. I was in a wheelchair for a while. Um, so symptomatically, ah, the occurrences of problems were low and no treatment was sought for the wrist. I did have major issues from being run over and they were a priority.
Q: Yes. They were a priority and you said that your left wrist issues were minor in comparison to the issues from the incident when you were run over, is that correct?---
A: Yes.
Q: Okay?---
A: The injuries were, ah, things like I had no teeth for eating.
Q: Sure?---
A: So I couldn't have solid food, um.”[29]
[29]T 26, L 29 – T 27, L 14.
48Next, the plaintiff accepted that he had only attended Dr Averay on a handful of occasions since he moved to Armidale.[30] He said he had only attended hand therapy three times with Katie Street.[31]
[30]T 29, L 23.
[31]T 29, L 27-2.
49The plaintiff was then cross-examined about his medication use, or more accurately, his lack of medication for the left wrist/hand injury.[32]
[32]T 30, L 22-31, T 31, L 1.
Video surveillance
50The tendered covert video surveillance was shown to the plaintiff during his oral evidence, and he was asked questions of what he was seen to do.
51I consider that the video surveillance obtained on 17 and 18 March 2023 is most relevant for the resolution of the issues in this proceeding. On 17 March 2023, the plaintiff was seen at his home and to engage in relatively mundane activity including smoking a cigarette and moving a car in the driveway of his home. However, at approximately 10:13 AM he was seen on the video using a brush cutter to maintain a lawn area around the front of his property. He did that without any obvious sign of restriction.
52Next, on 18 March 2023, the plaintiff was seen to roll up a garden hose using both hands. He was seen to use the hose to spray water onto cars in the driveway at his home and to clean the cars including using a sponge and chamois with his left hand. He was also seen to drive at approximately 11:37 AM to a nursery, where he was seen with his ex-wife browsing and ultimately carrying a tray of small plants back to his car. He was then seen shopping. On the other dates, he was seen again smoking, driving, and gripping a coffee cup including with his left hand.
53The plaintiff was cross-examined about the fact that the video surveillance did not show any obvious restriction because of any claimed symptoms in the left hand/wrist. The plaintiff agreed with that. In part he explained that, for example, there would be some manageable pain when using the brush cutter but that “if I was in extreme pain, I would just put the thing down and leave it for another day”.[33]
[33]T 34, L 12-14.
54The video surveillance must be considered in time, context and what is revealed by it.[34] I should also consider if it has been to any doctor for comment. In this proceeding, the video surveillance was provided only to Dr Stapleton for comment. He was less supportive of the plaintiff’s claim for serious injury after viewing the video surveillance.
[34] Church v Echuca Regional Health [2008] VSCA 153 at paragraph [66].
55The activities shown in the video surveillance are not what I would describe as heavy. But there was a degree of manual activity involved in the use of the brush cutter, including gripping a handle on the brush cutter with the plaintiff’s left hand and moving his wrist to operate it, as well as using his left wrist to clean the car and carry items.
56This is not a proceeding in which the video surveillance is so damaging so as to destroy the plaintiff’s case. But some aspects of what was seen on the video surveillance do sit uncomfortably with some of what he said in his affidavits.
57In his affidavits, the plaintiff described how carrying a heavy plate or mug required him to be careful about the angle of his wrist/arm where it causes pain.[35] He described difficulty performing “any tasks” involving repetitive pushing or pulling or involving repetitive and/or heavy lifting. He described using wrist supports for typing and of difficulty with simple activities such as catching a ball, carrying groceries, gardening, and driving. All that can be said is that, in the video surveillance, he performed tasks involving repetitive use of the left hand, including pushing, pulling, and lifting, without any obvious sign of pain or of having to avoid using his dominant left wrist/hand.
[35]PACB 18.
58Therefore, it could be said of the video surveillance that it neither proved, nor disproved, injury to the left wrist/hand. However, I consider that what was seen on the video casts some doubt on the reliability of the plaintiff’s evidence of ongoing impairment consequences.
The medical evidence
59Turning next to the medical evidence, in this proceeding it is relatively limited but nevertheless important for a consideration both of injury and impairment consequences.
Evidence from treating medical practitioners
60Some of the evidence from the treating practitioners has already been set out in the context of a timeline of the plaintiff’s attendance for treatment. Overall, the material from the treating practitioners is of limited assistance.
Dr Carmen Lei
61Dr Lei provided a report dated 19 November 2018.[36] That report confirmed the plaintiff suffering a fracture of the left distal radius and ulna in the accident. Dr Lei described that, by November 2018, on examination, left wrist extension and flex was pain free and the plaintiff had a normal range for pronation/supernation and normal grip strength. But in that context, she recorded that the plaintiff was restricted from social and recreational activities, he could not lift the kettle single-handedly and had not been able to go fishing or fly fishing.[37]
[36]PACB 46.
[37]Ibid.
Dr Jason Averay
62Next, Dr Averay has provided several reports. In the first report dated 30 August 2023,[38] he said he could not comment on the injury as the plaintiff had only been a patient of his since March 2023.
[38]PACB 47.
63Next, in a report of 8 September 2023,[39] Dr Averay answered questions and said that office or administrative work would be possible, but the plaintiff would not be able to perform any roles that required physical or manual tasks (such as his previous career as a motor mechanic). He said the plaintiff was limited in the types of social and recreational activities he could participate in, such as fishing and cycling. Dr Averay recommended comprehensive hand therapy and/or occupational therapy. He said that, depending upon progress, specialist orthopaedic involvement may be warranted in the future. He described the prognosis as difficult to estimate and would depend on the outcome of appropriate hand therapy and intervention. He said he suspected there would be a significant degree of limitation lifelong and that the plaintiff may have already developed early onset osteoarthritis, which he would investigate and monitor.[40]
[39]PACB 48.
[40]Ibid.
Ms Katie Street
64Finally, by way of treaters, to return to the evidence from Ms Katie Street, which is contained in a report from her dated 7 November 2023.[41] She set out what she described as the subjective information from the plaintiff. She then set out that Dr Averay had ordered another MRI scan which was completed on 11 October 2023. She described the report of that scan.[42] But, I note that none of the specialists were provided with that scan.
[41]PACB 49.
[42]PACB 50.
65Ms Street recorded the plaintiff’s subjective complaints of loss of strength, endurance, and spasm in the left wrist, and that at times “the left wrist just can’t hold things”.[43]
[43]Ibid.
66Ms Street then recorded her objective testing and said that it was “difficult to get clear and concise history from which is understandable given time since injury and length of time his wrist has been symptomatic”.[44] She then set out her treatment and a plan to revisit strengthening of the wrist. She then said:
“Recommendations:
Peter is unfit for pre-injury duties as a mechanic for the foreseeable future.
Peter has capacity to retrain for suitable employment - initially part time (20 hours a week). Hours and employment status can be increased if capacity improves.
Peter's injury does not preclude him from social, domestic or recreational activities but he would have to modify his performance in physical activities in order to participate.
Peter would benefit from a consult with a Hand Surgeon especially to review his recent MRI and discuss results with him.”[45]
[44]Ibid.
[45]PACB 51.
Medico-legal evidence
Mr Ash Chehata
67Mr Ash Chehata is an orthopaedic upper limb surgeon who examined the plaintiff at the request of his solicitors and provided reports. The first report from Mr Chehata is dated 29 August 2023 and followed an examination that day which apparently occurred via telehealth. Mr Chehata set out his history, clinical examination and then answered specific questions. In respect to diagnosis, he said:
“This is a fragile individual who after a seemingly innocuous fall at Veritas Recruitment on 28 February 2017 suffered a small avulsion fracture of the distal ulna and an undisplaced radius fracture that has gone on to develop ongoing intermittent pain in the left wrist after being managed in a conservative fashion with plaster on a background of type 2 diabetes and smoking with likely associated mental health issues.”[46]
[46]PACB 27.
68Next, in respect to employment or related activities, Mr Chehata said:
“As a consequence of the physical injury, he describes himself as working as a motor mechanic. The excessive load that would be required, as well as the repetitive activity, is likely to have been compromised and although the minor fracture pattern appears to have healed and he would be expected to do quite well, unfortunately he has done poorly and as such, has been unable to return back to his normal occupation.
It certainly would be expected as a motor mechanic that he would be required to lift repetitively and certainly he feels that he has been unable to return back to that form of employment.”[47]
[47]PACB 28.
69Mr Chehata repeated on several occasions his opinion that the plaintiff was not suited to heavy lifting. Regarding the impairment consequences he said:
“As a consequence of the physical injury, it has affected a lot his social and domestic activities in terms of unrestricted capacity. He is now restricted in terms of the number of times he can lift, push or pull and he can no longer change tyres, perform unrestricted shopping or drive manual cars.”[48]
[48]PACB 29.
70Mr Chehata then provided a supplementary report dated 4 October 2023[49] in which he was requested to comment on further radiology. He said the x-ray findings did not cause him to alter his opinion, but perhaps a CT scan with 3D reconstructions may provide more information as to the underlying cause. He said he would not be advocating for any operative intervention.[50]
[49]PACB 31.
[50]PACB 33.
71Mr Chehata then provided a third report dated 1 November 2023,[51] after the plaintiff underwent a CT scan with 3D reconstruction. He said:
“The CT scan that was performed on 23 October 2023 does not really assist in terms of an underlying explanation. There are multiple cystic changes, again all consistent with what appears to be early degenerative changes in the mid carpus with no fractures or ligament disruption whilst the bone mineral density has no real implication on this situation, it really hasn’t added much with the CT scans again just confirming the findings of the x-rays.
At this stage, again, it is very difficult to define exactly the cause for his ongoing symptoms, in particular to define a specific injury per se.
The significance really doesn’t add much to an underlying diagnosis where it was a previously undisplaced radial fracture and the ongoing pain may represent early posttraumatic arthritis at the level of the mid carpus, which would be slightly early in a non-weight bearing joint but perhaps this could be the only real organic explanation for the ongoing loss of grip strength.
Again, it is very difficult to be definitive with no specific fracture, dislocation or abnormality found on the CT scans and although the Medical Panel has accepted the loss of grip strength as an impairment percentage, the actual specific explanation is certainly slightly unclear and I certainly would not be advocating for any further operative intervention with no specific diagnosis, apart from early mid carpal arthritis.
The assumption would be that post fall he has developed some mild mid carpal arthritis that perhaps is remaining painful causing some loss of grip strength and again, this is certainly far from a standard explanation.”[52]
[51]PACB 35.
[52]PACB 36-37.
72Finally, Mr Chehata provided another supplementary report, this time dated 10 November 2023,[53] and asking for him to comment upon a report from Mr Murray Stapleton (hand surgeon), dated 5 April 2023. Mr Chehata said:
“I have reviewed the report by Mr Murray Stapleton dated 5 April 2023.
Again, I have made a comment with regard to attempting to delineate exactly the primary cause of Mr Kollington’s underlying symptoms, particularly as this is an undisplaced radius and ulnar fracture with his primary pathological findings on CT being mid carpal early degenerative change. Again, this is very difficult to define, and I have reviewed Mr Murray Stapleton’s report with a view to providing a possible explanation.
Mr Stapleton has commented on the injured body part being “a fractured radius and ulnar that was undisplaced, managed conservatively” and has noted on clinical examination “there was swelling above the level of the wrist joint”, which I would agree with, and I have found to be in the mid carpus rather than the radioulnar joint. He has noticed a minimal loss of range of movement, as I have also found and again, has confirmed the idea of a previous fracture, as well as the concurrent mid carpal degeneration present in a manual worker, which may the explanation for the ongoing pain. However, again, no specific underlying process that could completely explain his overall symptoms.
At this stage, at best, Mr Stapleton and I would certainly agree on the idea of an undisplaced wrist fracture, and he has what appears to be a loss of grip strength, likely to be contributed to by what appears to be mid carpal arthritis. This perhaps may be related to his manual work and was aggravated by the initial undisplaced radius and ulnar fracture but essentially, this report does not give any further insight into an underlying cause.”[54]
[53]PACB 38.
[54]PACB 39-40.
Dr Richard Sullivan
73Dr Richard Sullivan is an interventional pain specialist and specialist anaesthetist. He consulted with the plaintiff via telehealth on 14 November 2023 and provided a report of that date to the plaintiff’s solicitors.[55] Dr Sullivan took a history from the plaintiff, considered various reports of radiology and the like and then noted a clinical examination could not be conducted because of the use of teleconference. However, in summary, he said:
“Peter Kollington is a 60-year-old man with a range of various work experiences including qualifications as a motor mechanic and electrical engineer. He was employed as a labourer when he sustained an injury to his left wrist in February 2017. He suffered a fracture to the left distal ulna and radius and whilst the fractures have subsequently healed, he has chronic pain affecting his left wrist with associated significant functional restrictions and limitations that are likely to persist indefinitely.”[56]
[55]PACB 41.
[56]PACB 44.
74Next, in response to specific questions, Dr Sullivan said the plaintiff had suffered fractures to the left distal radius and distal ulna and had subsequently developed degenerative changes within his left wrist radiologically. He said from the pain perspective, the plaintiff had post-traumatic chronic pain.[57] He went on to opine that the plaintiff was likely to have permanent restrictions for work, could not return to employment as a labourer and was likely to have permanent limitations and restrictions affecting his ability to engage in social, domestic and recreational activities.[58]
[57]Ibid.
[58]PACB 44-45.
Dr Murray Stapleton
75Dr Murray Stapleton is a hand surgeon who provided three reports at the request of the solicitors for the defendant.
76Dr Stapleton reported for the first time on 5 April 2023.[59] Having consulted with the plaintiff by telehealth on 31 March 2023, he took a history from the plaintiff, conducted an examination, and then expressed his opinion that the plaintiff’s pain was related to the left wrist joint. He described the injuries as consistent with the stated cause of the accident.[60] Dr Stapleton said no further treatment was needed, apart from analgesics. He said as the years go by, the post-injury osteoarthritis of the wrist joint could well make his symptoms and signs worse. He described the plaintiff as not capable of returning to pre-injury duties.[61]
[59]DACB 28.
[60]DACB 31.
[61]DACB 32.
77Dr Stapleton then provided a supplementary report dated 19 October 2023 after he was provided with video surveillance. He responded to the video surveillance as follows:
”Thank you very much for your letter dated 12 October 2023 requesting a supplementary report in relation to Mr Kollington. Thank you also for the surveillance footage/reports dated April, July and August 2023, together with the documents you enclosed with your instruction dated 12 October 2023, the contents of which I have noted.
I acknowledge that, in preparing this report, I have read the Overarching Obligations set out in the Civil Procedure Act 2010 and agree to be bound by them. I have made all the enquiries I believe are desirable and appropriate regarding this matter and no relevant matters of significance have, to my knowledge, been withheld from the Court.
I refer you to my previous report concerning this gentleman which was dated 5 April 2023 and it is noted that Mr Kollington was working as a labourer when he stepped off a step, his heel being caught an adjacent module to where he was working, causing him to fall to the ground, breaking his fall with an outstretched left hand.
The fracture of his left radius and ulna, which was the consequence of this fall, was treated conservatively; i.e. without surgical intervention.
When I saw him previously on 31 March 2023, he told me that if his wrist is without any movement or activity his pain is 2/10, but with any movement, particularly twisting of the left wrist, the pain goes to 9/10. He told me that he could lift a shopping bag with a dead weight, i.e. with the left arm against his body, but any lifting with his left arm away from his body is painful.
He told me that extension of his wrist, i.e. moving the hand backwards, is the most painful movement of the wrist joint. He said that driving is painful to the extent that he could not drive for more than one hour. He said that, domestically, opening door handles or putting keys in a door are a problem for him, as is using a vibrating tool such as a powered screwdriver.
When I saw him, I did not get the opinion that he was anything that was genuine [sic].
I will now turn to my observation of the surveillance footage you have sent along.
In March 2023 the important observations I made in this video was that he was using a brush-cutter. It was a brush-cutter powered with a 2-stroke engine, but he supported it with both hands; i.e. he did not seek the assistance of a harness to take the weight of the brush-cutter away, which was a surprise, as a brush-cutter vibrates and given that he told me previously he would not consider using an implement such as that. I noted that he watered his garden, but he favoured his right hand. He opened the door to his house with a left-hand manoeuvre, which could have been well done with his right. He visited a nursery with a female and on one occasion I noted that he lifted a plant in a pot with his arm extended and he used his left hand to do it. That suggested that the information given to me initially was inconsistent.
In the June 2023 surveillance, it was mainly walking and smoking. When he smoked a cigarette, mostly he favoured using his left hand. I noticed that he drove a motor vehicle and both hands were used to operate the steering wheel. I noted that he lifted a cup of coffee, again with his left hand.
In August 2023, he seemed to be walking around and, indeed, drove to a building site. The observation I would make with that surveillance was that he drove his car with both hands being seen on the steering wheel.
That stated, I respond to your specific questions submitted to me in your instruction dated 12 October 2023 as follows:
1. Does the enclosed surveillance of the worker cause you to alter your opinion? Please provide your reasoning.
The enclosed surveillance does cause me to alter my opinion. I am not suggesting that this gentleman has no symptoms at all with his left (dominant) hand, but what I observed was not consistent with the information he provided to me.
My reasoning, therefore, for altering my opinion is that him using a brush-cutter, lifting a plant with his left hand and opening a door with his left hand, all supports my opinion that his presentation was inconsistent.
2. Do the enclosed tax returns of the worker cause you to alter your opinion? Please provide your reasoning.
My reasoning, therefore, for altering my opinion is that him using a brush-cutter, lifting a plant with his left hand and opening a door with his left hand, all supports my opinion that his presentation was inconsistent.”[62]
[62]DACB 34-36.
78Dr Stapleton was then asked to provide another supplementary report, which he did on 22 November 2023.[63] It is convenient to simply set out what was asked of Dr Stapleton and his answer as contained in that report:
“In view of the inconsistencies you noted on your report dated 19 October 2023, is the worker currently capable of returning to pre-injury duties? If the answer is “No”, will he in future be able to do so, and what is the likely timeframe for him to do so.
On the basis of the information I have received concerning this man I am of the opinion that he can return to his pre injury occupation.
Should he return to those duties, and it is established that those duties are beyond his capacity, then the matter can be looked at again.”[64]
[63]DACB 37.
[64]Ibid.
79Pausing, I also note that the defendant had obtained reports from Dr Andrew Miller and tendered a Certificate of Opinion from the Medical Panel. However, no submissions were made regarding that medical evidence, perhaps not surprisingly given that it is now some three to five years out of date and, in those circumstances, I do not propose to say anything specifically about that evidence, other than I have considered it.
Consideration
Injury
80I consider the reliable evidence for a diagnosis of injury to be that contained in the reports from the specialist upper limb surgeons, being Mr Chehata and Dr Stapleton.
81Next, a plain reading of the reports from Mr Chehata and Dr Stapleton confirmed the diagnosis of the fracture injury. But both those specialists had difficulty reconciling the current objective evidence with the plaintiff’s complaint of symptoms. As Mr Chehata said, it was difficult to be definitive about the significance of the radiology where no specific fracture, dislocation or abnormality had been revealed.
82Again, as Mr Chehata said, the assumption is that the fall caused the development of some mild mid-carpal arthritis. Broadly, Dr Stapleton agreed with that. Further, the treating practitioners and Dr Sullivan also broadly agreed with that diagnosis, although they are not specialist upper limb surgeons.
83On balance, I am satisfied that the plaintiff suffered a fracture to the left wrist, which required conservative treatment but has left him with a degree of arthritic change.
Serious or not?
84In respect to the medical evidence, the plaintiff was critical of the opinion from Dr Stapleton regarding the video surveillance. He submitted that Dr Stapleton’s comment about not requiring the assistance of a harness to take the weight of the brush cutter,[65] when the video showed him using a shoulder strap, impacted the weight to attach to the opinion.
[65]DACB 35.
85The video surveillance demonstrated the plaintiff to use a strap over his shoulder when using the brush cutter. It is unclear whether Dr Stapleton was ignorant of the use of the strap or was referring to some other device by mentioning a harness. Regardless, not much turns on that because, in my assessment, the plaintiff was seen at times in the video to take the weight of the brush cutter in both hands.
86I do not accept the submission that I should reject Dr Stapleton’s opinion because he may have incorrectly referred to the lack of a harness. What is clear is that the activity broadly seen in the video surveillance was considered by Dr Stapleton to be inconsistent with the history provided to him, in circumstances where I have already expressed the view that the reliability of the plaintiff is brought into question in this proceeding.
87The question to be answered then becomes, can the Court be satisfied that the plaintiff has demonstrated “very considerable” consequences from the identified compensable injury, where the video casts doubt on his description of impairment consequences and because of what it shows he is still capable of doing?
88The plaintiff emphasised the medical opinions that supported a conclusion that he cannot return to work as a mechanic, as a relevant pain and suffering consequence. His senior counsel submitted that, notwithstanding what was shown in the video surveillance, the overall tenor of his evidence has not been contradicted.[66] In that setting, it was submitted that what pervades all of the evidence is the issue of employment.[67] It was submitted that what had been taken from the plaintiff by reason of an inability to work as a motor mechanic was the flexibility sufficient to find work wherever he may go, in a situation where he has done mainly either qualified jobs such as a motor mechanic or electrical technician or labouring work. Therefore, the inability to derive the satisfaction one derives from a day’s work by reason of his limitation, of his inflexibility or his limitation of his capacity to find work, was a relevant pain and suffering consequence.[68]
[66]T 79, L 21-22.
[67]T 80, L 23-25.
[68]T 82, L 11-15.
89Before briefly setting out the relevant legal principles, it is worthwhile revisiting what the plaintiff said about his work as a mechanic.
90In his first affidavit, he did not say anything about leaving the mechanic job before the accident for unrelated reasons. During his oral evidence, he accepted that stress was a reason for leaving that job, in the context of moving to Victoria for family reasons shortly before the accident. But relevant to work as a mechanic, he said that working on cars used to be something that he was able to do with ease, but now it was hard to change a tyre, which was upsetting. He said that he had not been able to return to physical work, “which has limited my job options considerably”.[69]
[69] T 86, L 13.
91In his second affidavit, he expanded slightly when he said:
“For example, I no longer feel capable of working as a motor mechanic, electronics technician, bus driver, labourer and cleaner. The scope of what is available to me is therefore much narrower. As a result, I have been put under a lot of financial stress as a result of my injury.”[70]
[70]PACB 17.
92In Ellis Management Services Pty Ltd v Taylor, the issue of the use of pecuniary disadvantage consequences in a consideration of a claim for pain and suffering only was dealt with as follows:
“While pecuniary disadvantage consequences may not fall for consideration in a pain and suffering damages only case, as was acknowledged by the appellant, that does not mean that in all cases a worker’s inability to engage in employment of a particular kind has no relevance in an application for leave to commence a proceeding for pain and suffering damages. 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.”
93Notably, in his evidence the plaintiff did not describe the work as a mechanic as something that he enjoyed, although perhaps that could be inferred by the fact that he trained as a mechanic and over the years has moved in and out of that employment. Issues also arise from the fact of the subsequent assault and that he has now relocated to a more remote area, which might also impact on his ability to find work as a mechanic. There is no reliable evidence about either of those facts, where he bears the overall onus of proof.
94In his recent affidavit, the plaintiff described the scope of work to him as being much narrower and, because of that, he was under a lot of financial stress. The concept of financial stress may be said to be frustration at being unable to engage in his former vocation. But the actual pecuniary loss cannot be considered.
95The plaintiff’s evidence about his work as a motor mechanic was broad and vague. He does not describe it as a great love or passion of his, which might be a more significant pain and suffering consequence. Overall, I consider that he does provide some evidence of being frustrated about the inability to engage in that occupation, which would be a relevant pain and suffering consideration.
96However, the first issue is whether the plaintiff’s left wrist injury is so bad as to preclude him from work as a motor mechanic. That is difficult to answer where his evidence is unreliable.
97But, even if the path of least resistance is taken and the Court accepts that he cannot return to work as a motor mechanic, his evidence about any enjoyment from that work is limited; the evidence about why he ceased that work before the accident is vague; and the evidence about whether he would now be physically capable and able to find work as a mechanic in Armidale is also vague. Therefore, I do not consider the inability to work as a motor mechanic to be a “big ticket” pain and suffering consequence for him, although it is of some consequence.
98Turning next to the other consequences claimed by the plaintiff in his affidavits, the first and notable thing is that the plaintiff is vague in his description of any pain in the left wrist. In the first affidavit, he described ongoing pain and numbness. In his second affidavit, he said he had ongoing pain and that “it often feels as though I have been smacked on the back of my hand with a hammer”. In the context of the unreliability of some of his evidence, I am prepared to accept that he has a low level of pain in the wrist after repetitive activity, consistent with the objective evidence from Dr Lei that, by November 2018, he was essentially pain free at rest. There is no plausible medical evidence to explain why that situation should have changed since then.
99In that context, the evidence from Mr Chehata and Dr Stapleton tends to a conclusion of a relatively minor ongoing problem in the left wrist, where the plaintiff has only needed limited conservative treatment. Further, there is no suggestion of any operative treatment and, apart from occasional hand therapy and over-the-counter pain killers, the plaintiff does not really have any treatment.
100Next, I am prepared to accept, with some reservation, that repetitive use of the left wrist does produce some mild symptoms in the left wrist/hand. But I am not prepared to accept, after a consideration of all the evidence, that the plaintiff’s left wrist/hand injury precludes him from engaging in day-to-day activity. In my view, the man seen on the video surveillance would have the capacity to cast a fishing line, carry a plate or mug, garden and clean.
101In conclusion, after an overall consideration of all the evidence of impairment consequences, whilst those consequences might not be trivial,[71] in a consideration of the range of possible impairments and impairment consequences, the plaintiff’s ongoing symptoms might also be capable of being described as more than marked or significant, but I am not persuaded that they can properly be described as “very considerable”.
[71]Reading, n 1.
102Therefore, for the reasons given, the plaintiff has failed to establish that he has suffered “serious injury”.
103The proceeding is dismissed. I shall hear from the parties on the question of costs and ancillary orders.
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