Luca v Adiyan Pty Ltd
[2025] VCC 387
•9 April 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-22-00480
| ADRIAN LUCA | Plaintiff |
| v | |
| ADIYAN PTY LTD (ABN 81 144 678 722) | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 July 2023 | |
DATE OF JUDGMENT: | 9 April 2025 | |
CASE MAY BE CITED AS: | Luca v Adiyan Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 387 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the right hand and mental disorder – credibility – pecuniary loss – suitable employment – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s3, s5, s325
Cases Cited: Church v Echuca Regional Health (2008) 20 VR 566; Johns v Oaktech Pty Ltd [2020] VSCA 145; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Humphries and Anor v Poljak [1992] 2 VR 129; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67; Transport Accident Commission v Katanas (2017) 262 CLR 550; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Demmler v Transport Accident Commission [2018] VSCA 284; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Sabanovic v ATCO Controls Pty Ltd [2009] VSCA 143; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Victorian WorkCover Authority vPapaconstantinou [2021] VSCA 145; Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545; Giankos v SPC Ardmona Operations Ltd (2011) VR 120; Hunter v Transport Accident Commission [2005] VSCA 1; Acir v Frosster Pty Ltd [2009] VSC 454; The Herald & Weekly Times Ltd v Jessop [2014] VSCA 292; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Pulling v Yarra Ranges Shire Council [2018] VSC 248; Ryan v Bunnings Group Ltd [2020] ACTSC 353
Judgment: Leave granted to commence a proceeding for pecuniary loss and pain and suffering damages.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P D Elliott KC with Ms A C Ryan | Johnstone & Reimer Lawyers |
| For the Defendant | Mr A J McG Moulds KC with Mr M S Cameron | Lander & Rogers |
Table of Contents
Introduction
The evidence
Plaintiff’s prior medical history
Plaintiff’s post-injury medical treatment
Consequences of the Plaintiff’s injuries
Issues and submissions
Plaintiff’s submissions
Defendant’s submissions
Legal principles
Credibility and reliability
Pain
Dysfunction
Driving
Carrying a bag of apples
Cooking
Ability to move fingers and hand
Eating and holding utensils
Pushing a stroller/shopping trolley
Dismantling a swing chair
Rigid heavy vehicle licence
Trips to the Philippines
Other issues
Compensable physical injury
Medico-legal reports
Plaintiff’s treating practitioners’ reports
Dr Peter Blombery, consultant physician
Dr Constantin Jigau, general practitioner
Dr Sam Micut, general practitioner
Nerve conduction studies
MRI cervical spine
Plaintiff’s evidence of pain and dysfunction
Conclusion on compensable physical injury
Permanence of physical injuries
Compensable psychological injury
Medico-legal reports
Dr Zarrar Chowdary, consultant psychiatrist
Dr Richard Prytula, consultant psychiatrist and psychoanalyst
Dr David Weissman, consultant psychiatrist
Plaintiff’s treating psychiatrist
Dr Sangheeta Raghav
Conclusion on compensable psychological injury
Permanence of mental disorder
Loss of earning capacity consequences – has the Plaintiff suffered a loss of earning capacity of more than 40 per cent?
What was the Plaintiff’s pre-injury earning capacity?
What is the Plaintiff’s “after injury” earning capacity?
Opinion of Dr Horsley
Opinion of Dr Slesenger
Did the Plaintiff have any capacity to return to his pre-injury employment?
Can the Plaintiff work in “suitable employment”?
Is the loss of earning capacity permanent?
Physical pain and suffering consequences
Pain
Medication
Sleep
Weight
Social life
Activities of daily living
Sports and hobbies
Driving
Relationship with partner
Children
Are the consequences of the Plaintiff’s physical injury alone “serious”?
Psychological pain and suffering consequences
Are the consequences of the Plaintiff’s psychological injury alone “severe”?
Conclusion
HER HONOUR:
Introduction
1The plaintiff, Adrian Luca, is a fifty-seven-year-old married man. He was born in Romania and came to Australia in 1987 when he was nineteen years’ old.
2The plaintiff was previously married to his first wife, with whom he has two adult children. He married his second wife in 2006 and together they have a three-year-old daughter.
3The plaintiff was self-employed for several years and then began working for his wife’s company, Adiyan Pty Ltd, the defendant, as a delivery driver. His job was to drive a 10-pallet Tautliner with a cab chassis and a trailer. The trailer had a hydraulic tailgate at the rear.
4On 16 December 2016, the plaintiff suffered a crushing injury to the radial side of his right index finger when his hand became caught between the hydraulic tailgate and the trailer of the truck whilst working. He also suffered psychological injuries.
5The plaintiff claimed to have suffered a “serious injury” pursuant to paragraphs (a) and (c) respectively of the definition of “serious injury” in s325(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”).
6The defendant did not dispute the plaintiff had suffered an injury to the right hand. It also accepted the plaintiff had once suffered Complex Regional Pain Syndrome Type 2. The defendant disputed however, that the plaintiff still suffered from Complex Regional Pain Syndrome. It submitted the plaintiff had recovered. Further, the defendant disputed whether the pain and suffering and the loss of earning capacity consequences of the injury met the threshold for a “serious injury”. The defendant also disputed that the plaintiff’s claimed mental or behavioural disturbance or disorder, namely a Major Depressive Disorder with symptoms of traumatisation, a chronic Pain Syndrome and a chronic Adjustment Disorder with anxiety, depression and insomnia, reached the threshold of being “severe”.
The evidence
7The plaintiff relied on an affidavit of the plaintiff affirmed 22 December 2020; a further affidavit of the plaintiff affirmed 5 July 2022; a second further affidavit of the plaintiff dated 15 June 2023 but affirmed on 20 June 2023 and extracts from the Court Book, comprising various treating medical reports, medico-legal reports, radiology reports, rehabilitation documents, income summary, a video of Romanian Capsicum Cooking (slowed-down version) and surveillance details undertaken by the defendant. The plaintiff was cross-examined.
8The defendant relied upon extracts from the Court Book including VicRoads registration and licence search extracts, an affidavit of Ms Adele Moloney, solicitor, of Lander & Rogers, affirmed 24 July 2023, a Monash Neurology EMG nerve conduction study dated 12 September 2017, and various internet and social media posts.
Plaintiff’s prior medical history
9The plaintiff had no psychiatric history prior to the accident and had no significant past injuries.
Plaintiff’s post-injury medical treatment
10On the day the plaintiff was injured, he attended the Emergency Department of Dandenong Hospital. An x-ray of his right hand was taken. His injury was sutured, and he was discharged to the care of his general practitioner, Dr Constantin Jigau, at the Vermont South Health Care Clinic.
11The plaintiff was subsequently referred to Mr John Crock, plastic surgeon, who referred the plaintiff to Dr Peter Blombery, consultant physician (vascular disease).
12The plaintiff first saw Dr Blombery on 2 February 2017, at which time Dr Blombery was “sure [the plaintiff] ha[d] an injury to the superficial branch of the radial nerve”. He also considered the plaintiff had “features of complex regional pain syndrome, type 2 complicating [his injury]”. Dr Blombery gave the plaintiff a trial of Lyrica, and the plaintiff remained under his care thereafter, albeit with some gaps in treatment.
13In his report dated 28 February 2017, Dr Blombery noted the circumstances of the injury. He identified that although an x-ray of the plaintiff’s hand had been reported as normal, the plaintiff had experienced ongoing problems including bluish discolouration and intermittent tingling of the hand radiating up the forearm when he straightened his fingers. The plaintiff described experiencing a sensation over the radial nerve distribution and dorsum of the hand which felt like ants running over his hand. The area burned and there was excessive sweating on his right hand.
14On examination, the plaintiff’s right hand was blue and mottled, and was sweating more compared to his left hand. The plaintiff had significant swelling near the second metacarpophalangeal joint and a healed scar where the laceration had been. He had lost sensation in the dorsum of the hand, but not more proximally, and the plaintiff could not oppose his fingers to his palm.
15Dr Blombery diagnosed a crush injury to the plaintiff’s right hand, complicated by an injury to the superficial branch of the radial nerve with features of Complex Regional Pain Syndrome Type 2.
16The plaintiff was initially treated with Lyrica for nerve pain and Prednisolone; however, Lyrica had made the plaintiff “quite drowsy”. The plaintiff’s dose had initially been reduced to one b.d. which had been of some benefit for his fingers. Dr Blombery then suggested the plaintiff reduce the dose to one nocte for a period of two weeks and then gradually increase it back to one b.d.
17On 27 April 2017, Dr Blombery prepared a third report. He identified that a trial of Prednisolone had only helped a little. The plaintiff felt Lyrica was more efficacious.
18On 25 May 2017, Dr Blombery recorded the plaintiff had been taking 50 milligrams of Lyrica and had experienced a significant lessening of his pain, but he had been feeling drowsy, and he had been experiencing a dry mouth. Dr Blombery recommended the plaintiff increase his dosage to 75 milligrams mane and 75 milligrams nocte but identified that generally, the plaintiff seemed to have been improving in terms of his neuropathic pain.
19In his report dated 10 October 2017, Dr Blombery reported the plaintiff had been able to increase his dose of Lyrica. Some of the burning pain in his right arm had reduced. The plaintiff still complained of a pulling feeling in his right shoulder which came and went and could last for 45 minutes. When the pulling feeling was severe, the plaintiff said the intensity of the pain could be eight or nine out of ten. His right hand became very hot and sweated excessively. Dr Blombery presumed the pain was neuropathic in origin and identified the plaintiff’s hand was less swollen than it had been previously.
20By the end of 2017, the plaintiff’s chronic Pain Syndrome had worsened.[1] Dr Blombery recommended the plaintiff be given a pamidronate infusion.
[1] Report of Dr Jigau dated 16 June 2021
21On 15 January 2018, a pamidronate infusion was administered to the plaintiff. The plaintiff’s symptoms improved, but he experienced severe side effects including joint pains, pain in his jaw and under his nose, and sweating. The treatment had to be stopped.
22The plaintiff was subsequently provided with a prescription for Endep, 10 milligrams nocte, which could be increased to 20 milligrams nocte. He continued to experience symptoms such as increased pain, including burning pain in his right hand, hand discolouration, numbness in three fingers and pain from his shoulder to his fingers. He also experienced sweating and stiffness.
23On 15 June 2018, Dr Blombery reported the plaintiff had improved somewhat. He was experiencing numbness in the fingers of his right hand. He had undergone nerve conduction studies which were reported as normal. Dr Blombery opined that “clearly the numbness [was] caused by central suppression of sensation as part of … [the plaintiff’s] pain syndrome, rather than there being any pathology in the peripheral nervous system”.
24The treatment and side effects experienced by the plaintiff were identified by Dr Jigau to have negatively affected the plaintiff’s mental state. The plaintiff experienced anxiety, depression and insomnia and had a diagnosis of an Adjustment Disorder with Depression and Anxiety. He was started on Cymbalta and referred to Ms Carmen Manolache, psychologist, for fortnightly counselling. The plaintiff saw Ms Manolache on 26 June 2018.
25On 12 July 2018, Ms Manolache prepared a letter in relation to the plaintiff’s condition. She noted the plaintiff suffered from clinical Anxiety with Depressive manifestation.
26In his report dated 5 September 2018, Dr Blombery noted the plaintiff had been progressing well until August 2018 when he went on a trip. The pain in his hand increased after he forgot his medication for a period of three days. When seen by Dr Blombery, the plaintiff reported still having pain, although it had lessened. He was given a trial of Cymbalta, 30 milligrams per day, to see whether that would help with his depression. The plaintiff’s pain improved.
27In his further report dated 15 October 2018, Dr Blombery said he had increased the plaintiff’s dose of Cymbalta to 60 milligrams per day. The plaintiff also remained on Lyrica, 75 and 150 milligrams, as well as Endep.
28On 25 January 2019, Dr Blombery reported the plaintiff’s symptoms were fairly stable. Dr Blombery thought reduction of the plaintiff’s dosage would be unlikely, but he trialled the plaintiff on Lyrica, 75 milligrams b.d. for three to four weeks to see what the impact would be. He considered the plaintiff had “some autonomic disturbance” and opined “I still think he has complex regional pain syndrome”.
29Dr Blombery made the observation in his report dated 19 March 2019, that the reduction in the plaintiff’s dose of Lyrica had resulted in “quite a marked increase in sweating and neuropathic pain to a marked degree”. The plaintiff’s dose of Lyrica was increased back to 75 milligrams mane and 150 milligrams nocte. Dr Blombery also prescribed Cymbalta, 30 milligrams, and suggested the plaintiff increase the dose to 90 milligrams. The plaintiff remained on Endep.
30Dr Blombery saw the plaintiff again on 21 October 2019. The plaintiff was stable. He was seeing a psychologist on a second-weekly basis for Depression and Anxiety.
31Dr Blombery saw the plaintiff again in April and October 2020.
32The plaintiff had hand therapy with Ms Colleen Moloney, hand therapist, until about two years prior to June 2022. The plaintiff said at that time, Ms Moloney told him there was nothing more that could be done to help him, and he was advised to consider physiotherapy.
33By the time Dr Blombery prepared his report on 25 January 2021, the plaintiff rated his pain at about five out of ten with burning in the right hand. He was able to cope moderately with the pain. His medications included Lyrica, Cymbalta and Endep. Dr Blombery remained of the view the plaintiff had “ongoing features of complex regional pain syndrome type 2 complicating a crush injury to the right hand”. It had been more than four years since the injury and the plaintiff’s condition was essentially stable. He did not envisage a significant change in the plaintiff’s level of disability, and he considered the plaintiff would require ongoing treatment for pain indefinitely into the foreseeable future.
34Dr Jigau, in his report dated 16 June 2021, noted the plaintiff had undergone treatment with Mr Xavier Paredes, exercise physiologist, but had ceased seeing Mr Paredes midway through 2020. Dr Jigau identified the plaintiff had attended hydrotherapy two to three times per week and had consultations with Dr Blombery every three to six months. Additionally, the plaintiff had been given hand therapy, gentle active exercises, minor therapy exercises and desensitisation work. The treatment was of little benefit. The plaintiff became drowsy, overweight, and his condition deteriorated.
35Ms Manolache prepared a further report dated 16 March 2022. She reported the plaintiff’s capacity to use his right hand had drastically reduced. He found using his left hand frustrating and he was limited in daily activities. He reported “constant pain, 24 hours. It was impossible for him to use his hand to feed himself and impossible to drive. Opening a jar was an impossible task for him, very frustrating and very irritating. The smaller things he needed to do for self-care became very challenging.” The plaintiff was receiving psychological treatment and needed constant support to manage emotions such as fear, pain, anxiety/worry, depressed mood and negative thoughts.
36Ms Manolache diagnosed the plaintiff with an Adjustment Disorder, Generalised Anxiety Disorder and Depression. She noted the plaintiff met the criteria for a Major Depressive Disorder.
37On 23 March 2022, Dr Blombery had a telephone consultation with the plaintiff. In a later report dated 3 April 2022, Dr Blombery reported the plaintiff said his pain had increased a little in the cold weather and occasionally his hand went bluish, although less than it had previously. The plaintiff’s sweating had increased, particularly when there was colour change to his hand. The pain experienced by the plaintiff in his dominant arm, radiated upwards from his hand to his shoulder and he was limited in washing and in personal hygiene.
38Dr Blombery’s opinion as to the plaintiff’s condition remained the same – ongoing pain in the right hand with features of Complex Regional Pain Syndrome Type 2. He had been unable to examine the plaintiff in person and to document whether there had been changes in the temperature or colour of the plaintiff’s hand. Consequently, Dr Blombery was unable to determine whether the plaintiff met the Budapest Criteria to diagnose Complex Regional Pain Syndrome Type 2, although he considered the plaintiff met the basic criteria for that diagnosis.
39In his report dated 21 June 2022, Dr Samuel Micut, general practitioner, diagnosed the plaintiff with a crush injury to his right hand, and a deep laceration and injury to the superficial branch of the radial nerve which was a direct result of the accident. Dr Micut opined that the plaintiff had developed a Complex Regional Pain Syndrome as a complication of the injury and also an Adjustment Disorder with Anxiety/Depression.
40On 6 August 2022, Dr Micut referred the plaintiff for an MRI scan of the cervical spine which revealed the plaintiff suffered from bone and disc degenerative change at the C4-5 and C5-6 levels, with a central left-sided disc bulge at C4-5 producing moderate cord compression and left C5 nerve root encroachment. There was also central disc bulging at C5-6 which was productive of cord and bilateral C6 nerve root compression of moderate degree.
41The plaintiff was referred to Dr Sangeeta Raghav, psychiatrist, in 2022. Dr Raghav prepared a report dated 3 November 2022. The plaintiff explained to Dr Raghav that because of the limitations on his physical activities and his inability to work and contribute to the finances of the house, he felt depressed. He lacked energy and motivation. He had lost interest and had decreased his social interaction. He had poor concentration and forgetfulness. His sleep had been interrupted, and he was suffering from nightmares. He reported feeling worthless, hopeless and useless.
42Dr Raghav diagnosed Severe Depression with traumatisation symptoms, likely Post-Traumatic Stress Disorder. She recommended the plaintiff commence taking Mirtazapine, 15 milligrams, and then increase to 30 milligrams, and continue with Cymbalta, 120 milligrams (which had been increased from 80 milligrams). She advised the plaintiff to cease taking Endep.
43The plaintiff explained in his third affidavit that he discussed the proposed changes to his medication with Dr Micut. The plaintiff said “[d]ue to concerns about the interaction of the medications and the high dosage of Cymbalta … [he] was taking, … [he and Dr Micut] agreed that … [the plaintiff] would not commence taking Mirtazapine and would continue to take Endep and Cymbalta for the time being”.
44The plaintiff underwent nerve conduction studies on 8 December 2022 on his right upper limb. These showed mild carpal tunnel syndrome, although no treatment was required at that time.
45On 12 December 2022, Dr Blombery saw the plaintiff again face-to-face. The plaintiff complained of constant ongoing pain in the right hand and intermittent pain in the right shoulder. He woke four to five times each night. Dr Blombery gave the plaintiff a trial of melatonin. The plaintiff continued to take Cymbalta, 120 milligrams; Endep, 20 milligrams, and Lyrica, 225 milligrams per day.
46The plaintiff was seen again by Dr Blombery on 13 February 2023, at which time he had experienced an excellent response to the melatonin.
47A final consultation occurred between the plaintiff and Dr Blombery on 26 April 2023. At that consultation, the plaintiff still had occasional pain in his right shoulder and neck, with flare ups. His symptoms were otherwise stable and unchanged, including his pain. Dr Blombery’s diagnosis remained a crush injury of the right hand complicated by radial nerve injury and Complex Regional Pain Syndrome Type 2 with radiation of pain to the right shoulder and secondary Depression. The plaintiff’s injury had “impaired very significantly his ability to work as he … [was] not able to use his right hand in any effective way in terms of employment. He … [was] very limited in terms of domestic and leisure activities also as a consequence.”
48On 2 June 2023, Ms Manolache prepared a further report. She observed that during counselling sessions, it had become obvious the plaintiff’s quality of life had drastically diminished and his ability to perform domestic, community and social activities had been continuously deteriorating. She considered the plaintiff showed signs of Post-Traumatic Stress Disorder. His psychological condition had worsened. He could not see the end of the road and found that disheartening and threatening. He had no motivation. He had no energy left. He suffered nightmares and could not sleep, despite medication. He experienced flashbacks and could not rest emotionally. He avoided people. The plaintiff had also developed physiological reactions to stressors including pain in his neck which radiated down his arm.
49Ms Manolache opined that the plaintiff’s depressive state was even deeper than it had been previously, and he was experiencing anhedonia. He found no pleasure in anything anymore. He was experiencing psychomotor retardation, insomnia, memory loss and diminished ability to think and to concentrate. She noted he was becoming a hermit. He felt he needed to be left alone. She diagnosed Post-Traumatic Stress Disorder. She considered that as long as the plaintiff’s situation continued without resolution, his mind would not be able to accept the situation, and his psychological recovery would not start.
50At the date of the trial, the plaintiff was continuing to see Ms Manolache every three weeks and was engaging in cognitive behavioural therapy which he was finding to be of some assistance.
Consequences of the Plaintiff’s injuries
51In his first affidavit sworn 20 December 2020, the plaintiff described the crush injury on 16 December 2016 to the radial side of his right index finger. He said he was treated by his general practitioner and was subsequently treated with hand therapy by Ms Moloney. The plaintiff said in early 2017, Ms Moloney diagnosed the plaintiff with Chronic Regional Pain Syndrome. His right hand was painful and swollen. The swelling was worse at night. He also had continuous pain and numbness affecting the dorsal, which could travel up his arm to his shoulder. The plaintiff experienced sweating. His right hand had signs of colour change. He had great difficulty clenching a fist, lifting and he had a restricted grip. Often, he could not move his right index finger, middle finger and thumb, although when he put his right hand in hot water, he was able to move his fingers more easily.
52In his further affidavit dated 30 June 2022 but sworn on 5 July 2022, the plaintiff said he continued to suffer from Complex Regional Pain Syndrome Type 2. He continued to experience restrictions in his hand. His hand changed colour, and his fingers did not move. He felt like he had to force his thumb and the first two fingers on his hand to get movement out of them. His hand clawed on occasion and the pain went all the way up his arm. His last three fingers could become clammy, and he could experience numbness in those digits. He said he found it difficult to grasp objects. He had stopped hand therapy after he was told there was no more that could be done for him.
53The plaintiff described how the pain he experienced moved up his arm to the region around his neck and down his right forearm to the last three fingers on his right hand. He described the pain as “like someone is ripping at my neck”. He also said that one of his specialists had indicated he should be considered for a neuromodulator device because the pain he experienced was resistant to medication.
54In his second further affidavit, the plaintiff said his symptoms had not changed significantly since his previous affidavits. He continued to experience the symptoms he described in his earlier affidavits. He also experienced a shooting pain on occasions down his shoulder into his arm.
55The plaintiff said he is prescribed 225 milligrams of Lyrica per day which he said in re-examination was to treat the pain in his nerves. He takes 150 milligrams in the morning and 75 milligrams at night. He is also prescribed Cymbalta, 120 milligrams daily; about 25 milligrams of Endep once a day as an anti-depressant and to help him to sleep, and melatonin (brand Circadin) also to assist him to sleep. The plaintiff was previously prescribed Odessa to help him to sleep, but he had experienced side effects and could not drive while taking it. Eventually he ceased taking the Odessa medication.
56The plaintiff said in his affidavits, the medications he takes make him feel drowsy and tired. They have not led to any real improvement in his psychological condition. He is still short-tempered and irritable. He also continues to have difficulty with memory, focus and concentration.
57During re-examination at trial, the plaintiff described the medication he was prescribed as being “releasing”. He suggested that is why he has some moments when he feels a little better. But he also said it was “numbing” and caused him to get a dry mouth and to sweat. He described the drugs making him feel like he is “floating in the air”. He feels different; like he is high. He described trying to reduce the Lyrica but experiencing “enormous pains” in his right hand and ultimately being advised by Dr Blombery or his general practitioner to increase the dosage again.
58In his first and second affidavits, the plaintiff described suffering from insomnia and having trouble sleeping. He recounted experiencing bad nightmares and dreams that he died and was crushed. He felt fatigued and tired every day. He woke several times each night due to pain and because he was reliving the accident.
59In his second further affidavit, the plaintiff said he occasionally had bad dreams. His sleep had improved due to the melatonin medication he is now taking, although he continues to wake a few times a night.
60The plaintiff described in his affidavits how his activities of daily living have been impacted. In his first affidavit, the plaintiff described experiencing difficulty toileting and said he was restricted in washing dishes and performing domestic chores. He also had trouble holding his arm up to shave, and when he did, he said his right hand causes him pain.
61In his second affidavit, the plaintiff said he has difficulty washing himself and wiping himself after toileting which he finds embarrassing. He also experiences difficulty changing and dressing himself which takes a lot longer than it should because he is restricted to using one hand.
62In cross-examination at trial, the plaintiff accepted he could wash and shave. He said he does not do housework and his wife’s sister assists him in looking after his daughter.
63The plaintiff described spending his days watching television and listening to music. He tries to go on outings with his young family such as attending theme parks; however, he said outings do not lead to any significant improvement in his condition.
64He was cross-examined at trial about his visits to TGI Fridays and to Crown Casino, and about his daughter’s second birthday which was held at a hall. He explained his daughter had not been able to have a birthday party during the COVID-19 pandemic, so they held a party at a hall to celebrate her birthday. He acknowledged he can still go to public places, and he is not scared of crowds. He likes going out and mixing with people.
65The plaintiff said he had difficulty undertaking hobbies he previously enjoyed such as hiking and camping. He said he had previously been a keen fisher, but he could no longer go fishing because he could not cast a line. The plaintiff also said he previously enjoyed dancing which he now avoids because he lacks confidence, and he finds it painful to hold his partner. Within the Romanian community, at gatherings such as church ceremonies, he could feel panicked and overwhelmed.
66In his first affidavit, the plaintiff said his driving was limited. He frequently has to rely on other methods of transportation. He was provided with taxi vouchers to attend his medical appointments.
67The plaintiff, in his first affidavit, said his intimate relationship with his wife has been impacted and this has caused tension between them. In his second affidavit, he said he suffers from relationship problems and has difficulty with intimacy.
68The plaintiff has a young daughter. He finds it difficult to care for her. He finds tasks such as bathing and changing her difficult, and he does not feel confident lifting her.
69He described how he felt depressed and flat and lacked motivation. He had diminished interest in activities. His inability to work was a source of distress for him. He said he felt worthless and guilty that he could not provide for his family. His awareness and concentration had decreased. He had experienced suicidal ideation.
70He is a nervous passenger when driving with others as he feels out of control. He said he clenches his fists. If he sees another truck or vehicle come too close, he starts to panic. He feels hypervigilant, whereas before his accident he was very confident.
Issues and submissions
Plaintiff’s submissions
71The plaintiff submitted he suffered a crush injury to his right hand, resulting in damage to the radial nerve as evidenced by sweating and colour changes to the plaintiff’s hand and significant pain. The injury impaired the function of the plaintiff’s right hand and right upper limb.
72The nerve injury provided an organic basis for the development by the plaintiff of Complex Regional Pain Syndrome Type 2. There was no foundation for Mr Buntine’s opinion that the plaintiff did not have Chronic Regional Pain Syndrome, and any suggestion the plaintiff’s complaint of injury was “strongly influenced by non-organic factors” should be rejected.
73Alternatively, if the plaintiff did not have Complex Regional Pain Syndrome Type 2, he nevertheless had residual pain and restriction for which there was a substantial organic basis. That conclusion was consistent with the opinions of the plaintiff’s treating doctors. When the plaintiff’s Lyrica was decreased, he reacted adversely, and his pain worsened. Further, Dr Blombery did not opine that the plaintiff did not have an organic injury. Additionally, because the majority of the defendant’s medical material was outdated, the opinions of Dr Joseph Slesenger and Mr Buntine, which suggested the plaintiff’s Complex Regional Pain Syndrome had resolved, should be rejected.
74In addition to the crush injury to his right hand, the plaintiff submitted he suffered from a Major Depressive Disorder with symptoms of traumatisation, a chronic Pain Syndrome and a chronic Adjustment Disorder with anxiety, depression and insomnia.
75The plaintiff submitted he was a credible and reliable witness and the footage from the plaintiff’s wife’s video logs did not discredit him.
76It was submitted the plaintiff suffered a serious injury. He was no longer able to perform his pre-injury employment as a truck driver and none of the jobs proposed by the defendant constituted suitable employment. Consequently, he had suffered a loss of earning capacity of more than 40 per cent. The plaintiff contended that Flexi Personnel did not seriously consider whether the plaintiff could drive a truck. Dr Slesenger, although opining that the plaintiff then had more function of his right hand and that the Chronic Regional Pain Syndrome had resolved, did not explain what additional function the plaintiff actually had. Further, his report acknowledged the plaintiff has been left with chronic right-hand pain which has resulted in restrictions with respect to pushing, pulling and carrying in manual jobs.
77Additionally, the plaintiff’s pain and suffering consequences were “serious” with respect to his physical injury and “severe” with respect to his mental or behavioural disorder.
Defendant’s submissions
78The defendant accepted the plaintiff initially suffered a crush injury to his right hand and a Complex Regional Pain Syndrome. At trial, the defendant did not suggest the plaintiff’s physical injury to his hand had fully resolved. The defendant accepted the plaintiff continued to experience pain but disputed there was an organic basis for an ongoing Complex Regional Pain Syndrome. There was a lack of diagnostic tests or objective evidence other than the MRI of the plaintiff’s neck, to support the plaintiff’s continued pain and dysfunction. The only evidence suggesting the plaintiff suffered from ongoing pain arose from the histories provided by the plaintiff himself. The plaintiff was not a credible or reliable historian. His accounts of his injuries should be rejected as having been exaggerated.
79The defendant accepted the plaintiff suffered from an Adjustment Disorder but submitted there was no evidence of Post-Traumatic Stress Disorder. Further, even if the plaintiff suffered from a psychological injury, the psychological injury did not meet the threshold of being “severe”. The plaintiff had exaggerated his claimed injury and restriction in court and to doctors and when the plaintiff’s physical capacity was considered in light of the video footage obtained from the plaintiff’s wife’s video log, relying on Church v Echuca Regional Health[2] and Johns v Oaktech Pty Ltd,[3] the plaintiff’s credit was impugned. Further, because there was a lack of corroboration of the plaintiff’s account of his injuries, the plaintiff’s evidence was unreliable.
[2] (2008) 20 VR 566
[3] [2020] VSCA 45 at paragraph [71]ff
80If there was an organic basis for the plaintiff’s pain, any injury was not a “serious injury”. The plaintiff had not suffered the requisite loss of earning capacity to give rise to a serious injury. The plaintiff retained a capacity to work in suitable employment as a car park attendant, a school crossing supervisor, a delivery driver and to undertake light packing work. If exercised, the plaintiff’s retained capacity would result in him earning more than 60 per cent of the gross income he was earning, or was capable of earning, before he was injured, as determined in accordance with s325(2)(f) of the Act. Consequently, pursuant to s325(2)(g) of the Act, the loss of earning capacity required by paragraph s325(2)(b) of the Act was not established.
81Further, the pain and suffering consequences of the physical injuries were not “serious”, and the consequences of any psychological injury were not “severe”.
Legal principles
82Section 325(2) of the Act relevantly provides as follows:
“For the purposes of the assessment of serious injury in accordance with section 335(2) and (5)—
(a)…
(b)the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of body function, … with respect to—
(i)pain and suffering; or
(ii)loss of earning capacity—
when judged by comparison with other cases in the range of possible … mental or behavioural disturbances or disorders …
(c)an impairment or loss of a body function or a disfigurement is not to be held to be serious for the purposes of section 335(2) unless—
(i)the pain and suffering consequence; or
(ii)the loss of earning capacity consequence—
is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;
(d)a mental or behavioural disturbance or disorder is not to be held to be severe for the purposes of section 335(2) unless –
(i)the pain and suffering consequence; or
(ii)the loss of earning capacity consequence –
is, when judged by comparison with other cases, in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;
…
(h)the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
(i)the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
(j) the assessment of serious injury must be made at the time that the application is heard by the court, unless sections 348 and 358 apply;
… .”
83In assessing whether a plaintiff has suffered a “serious injury”, it is necessary first, to identify the nature and extent of the injury relied upon and the consequent impairment of the body function said to have been produced.[4]
[4]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 (“Barwon Spinners”) at paragraph [33] (per Ormiston, Chernov and Phillips JJA)
84Where the injury is a physical injury, it is necessary to consider whether the organically-based pain and suffering consequences of the physical injury, as opposed to psychological or non-organic consequences, satisfy the statutory criterion of being “more than ‘significant’ or ‘marked’” and “at least very considerable” when judged by comparison with other cases in the range of possible impairments or losses of a body function.[5] This is a subjective test insofar as the effect on a body function of a particular applicant is what must be considered; however, the determination must be objectively made.[6]
[5] Section 325(2)(b) of the Act
[6]Humphries and Anor v Poljak [1992] 2 VR 129 at 137 (“Poljak”)
85A two-step process of analysis should be adopted.[7] If there is a substantial organic basis for the claimed consequences, and if the relevant consequences satisfy the statutory criterion, then the application will succeed without the need for any “disentangling” of the physical versus the psychological manifestations of those consequences.[8] If, however, the first question cannot be answered affirmatively, then the applicant will need to proceed to the next step and separate the physical manifestation of the pain and suffering will need to be separated from the psychological to satisfy the Court that the “pain and suffering consequences” attributable to the physical injury satisfy the statutory test.[9] The psychological or psychiatric consequences of a physical injury cannot be combined with the physical consequences. The former fall under paragraph (c) and the latter under paragraph (a) of the definition of “serious injury”.
[7]Meadows v Lichmore Pty Ltd [2013] VSCA 201 (“Meadows”) at paragraphs [21]-[24]
[8] Ibid
[9]Meadows (supra) at paragraphs [21]-[23]; Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67 (“Peak”)
86In a case involving a mental or behavioural disorder, the application of the narrative test involves a two-stage process, identified by the High Court in Transport Accident Commission v Katanas.[10]First, an assessment is required of whether the nature and symptoms of the mental or behavioural disturbance or disorder are subjectively “severe”. Second, a determination must be made whether the mental or behavioural disturbance or disorder is objectively “severe” when compared with the range or “spectrum” of comparable cases.[11]
[10](2017) 262 CLR 550 (“Katanas”) per Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ
[11]Katanas (ibid) at 555, paragraph [6]. See also for example Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (“Dwyer”) at paragraph [7] per Ashley JA (Nettle and Dodds-Streeton JJA agreeing at paragraphs [1] and [31]); Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [42] per Ashley JA and Beach AJA; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at paragraph [89] per Tate JA (Ashley JA and Hargrave AJA agreeing at paragraphs [1] and [115])
87Assessment of the severity of an injury will ordinarily be informed by the extent of its symptoms and consequences, including the nature and extent of treatment, and a plaintiff’s ordinary activities after an accident compared to before. There is not always a “bright line” between injury, consequences and symptoms.[12]
[12]Katanas (supra) at 546, paragraph [29]
88The “pain and suffering consequences” of an injury encompass both the plaintiff’s experience of pain as well as the disabling effect of the pain on the plaintiff’s physical capabilities and enjoyment of life. The intensity, frequency, and duration of the pain must be assessed. This involves consideration of the plaintiff’s account of the pain, what the plaintiff does about the pain (for example medication, rest, seeking medical treatment), and the doctors’ views about the extent and intensity of a plaintiff’s pain. It is necessary to consider what the objective evidence demonstrates with respect to the disabling effect of the pain including the effect on the plaintiff’s sleep; mobility; cognitive functioning; capacity for self-care and self-management; performance of household and family duties; recreational activities; social activities; sexual life, and enjoyment of life.[13]
[13] Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 (“Haden”) at paragraph [16]
89The inability of a worker to engage in employment which they undertook before they were injured may be taken into account in assessing pain and suffering and loss of enjoyment of life.[14]
[14]Haden (ibid) at paragraph [15] (per Maxwell P); Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraph [35]; Peak (supra) at paragraph [38]; Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [59]-[60]
90The weight to be attached to the plaintiff’s account of pain will be affected by an assessment of the plaintiff’s credibility.[15] However, even if a plaintiff is found not to be a reliable witness, either generally or in respect of particular matters, this does not require all medical opinions to be automatically disregarded. Assessment of the “seriousness” or “severity” of the consequences of an injury involves matters of degree, impression, and a value judgement[16] as to relative incapacity by consideration of the whole of the evidence,[17] including objective evidence of diagnostic tests which are unaffected by a plaintiff’s credit.[18] The Court must try to place a particular claimant’s injury within a spectrum of seriousness of injuries.[19]
[15]Haden (supra) at paragraph [12], citing Dwyer (supra) at paragraph [8]; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 at paragraph [171]); Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143 at paragraphs [142]-[145]
[16]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
[17]Victorian Workcover Authority vPapaconstantinou [2021] VSCA 145 referring to Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545 at 573, paragraph [89]
[18]Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104 at paragraph [49]; Petrovic v Victorian WorkCover Authority [2018] VSCA 243 at paragraph [76]; Pulling v Yarra Ranges Shire Council [2018] VSC 248 at paragraph [51]; Ryan v Bunnings Group Ltd [2020] ACTSC 353 at paragraphs [27]-[29]
[19]Haden (supra)
91Where pecuniary loss consequences are in issue, leave must not be granted unless the worker establishes that, at the date of the application, the worker has suffered a loss of earning capacity of 40 per cent or more, measured as set out in s325(2)(f) of the Act,[20] and the worker will, after the date of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.[21]
[20] Section 325(2)(e)(i) of the Act
[21] Section 325(2)(e)(ii) of the Act
92Section 325(2)(f) of the Act determines the calculation of the relevant loss of earning capacity by comparing the gross income the worker is earning, or is capable of earning, in “suitable employment” at the date of the hearing (“‘after injury’ earnings), and the gross income the worker was earning, or was capable of earning, in suitable employment “during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred” (“‘without injury’ earnings).
93“Suitable employment” is defined in s3 of the Act to mean:
“… employment in work for which the worker is currently suited—
(a) having regard to the following—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii) the nature of the worker’s pre-injury employment;
(iii) the worker’s age, education, skills and work experience;
(iv)the worker’s place of residence;
(v) any plan or document prepared as part of the worker’s return to work planning process;
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker;
(b)regardless of whether—
(i) the work or the employment is available; or
(ii) the work or the employment is of a type or nature that is generally available in the employment market.”
94The concept of “suitable employment”:
“… looks to the possibility of employment after injury; hence the reference to ‘work for which the worker is currently suited’. Age, education, and experience are among the matters relevant, as also are the nature, and no doubt extent, of the worker’s incapacity and, of course, pre-injury employment. Obviously employment is not to be regarded as ‘suitable’ if situated too far from the worker’s place of residence; and so, a specialist factory in Mildura will not ordinarily be regarded as providing ‘suitable employment’ for a worker resident in Melbourne. The expression ‘whether or not that work is available’ emphasises that the definition is looking to the capacity to work, meaning the physical capacity for employment. If the worker is of an age, is sufficiently skilled, perhaps after rehabilitation, is sufficiently close by and is able physically to do a particular job, then that is ‘suitable employment’, whether, or not, the job is currently available.”[22]
[22] Barwon Spinners (supra) at paragraph [25]
95In Richter v Driscoll,[23] Osborn JA said, at paragraph 146:
“…The factors listed in paragraphs (a)(i) to (iv) go to characteristics of the worker bearing on his or her employability and are not limited to physical capacities. The factors listed in paragraphs (a)(v) and (vi) go to factors related to processes intended to facilitate a return to work either by way of work plans or rehabilitation services. The significance of return to work is emphasised in the objects of the Act. The outcome of these processes may or may not have been successful, but, for present purposes, these factors are relevant in that they go to the capacity of the worker to return to work in employment in the broad sense that I have sought to explain.”
[23](2016) 51 VR 95
96The defendant bears the evidentiary onus to establish the existence of jobs which satisfy the characterisation of “suitable employment” and are within the plaintiff’s “after-injury” earning capacity;[24] although as the Explanatory Memorandum to the Workplace Injury Rehabilitation and Compensation Bill (Vic) 2013 makes clear, “employment may be suitable employment regardless of whether it is available in the employment market”.
[24]Giankos v SPC Ardmona Operations Ltd (2011) VR 120 at paragraph [115]
97Section 325(2)(g) of the Act further provides that a worker does not establish the loss of earning capacity if the worker, after taking account of the worker’s capacity for suitable employment after the injury and the reasonableness of attempts to participate in rehabilitation or retraining, has, or would have, a capacity for any employment including alternative employment which would result in the worker earning more than 60 per cent of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred.
98In addition to establishing the worker has suffered a loss of earning capacity of 40 per cent or more measured as set out in s325(2)(f) of the Act, to meet the requirements for a “serious injury”, the loss of earning capacity consequences must meet the narrative test of being “serious” for a physical injury and “severe” for a mental or behavioural disturbance or disorder when judged by comparison with other cases in the range of possible impairments or losses of body function.
99In determining the application, the Court must make the assessment of “serious injury” at the time the application is heard[25] and must disclose the path of reasoning in dealing with the evidence and the issues raised by the application.[26]
[25]Section 325(2)(j) of the Act
[26]Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [33]-[36]
Credibility and reliability
Pain
100At trial, the plaintiff was cross-examined at length to try to demonstrate the pain he experienced was less than what he claimed and to show he had capacity to use his right hand.
101The plaintiff was asked about the pain he was experiencing at the date of trial. The plaintiff said the pain was “sometimes … a little bit better, sometimes it’s the same, so maybe slightly changed, yes. … [Comes and goes], yes. There’s two kinds of pain. One’s constant and other one comes and goes.”
102The plaintiff was asked about the report of Ms Manolache dated 16 March 2022 in which Ms Manolache had reported the plaintiff had constant pain. The plaintiff responded by saying his thumb, index and middle fingers of his right hand felt like “heavy metal” and there had not been much change in his ability to use those fingers over the preceding three years. He was able to pick up a pencil with his thumb and index finger and to some extent, his middle finger but was unable to pick up heavier items because he did not have power in his hand. If he tried to carry something, it fell out of his hand. At trial, the plaintiff demonstrated the lack of strength in his thumb and index finger by holding a cup of water with his middle, ring and little fingers.
103The plaintiff considered his ability to make a fist had improved and was “probably a little bit better,” although he did not agree he could make a full fist with his right hand. He demonstrated how he made a fist at trial, and it was evident his hand was swollen. He did not have full use of his index finger and thumb and to some extent, his middle finger. His index finger would not stay down, and his middle finger stayed down only partially.
104The plaintiff was taken to the opinion of Dr Robyn Horsley, occupational physician, and it was put to him he was able to make a fist with his right hand. The plaintiff agreed making a fist was possible sometimes, but he maintained there were days when his fingers were stiff and hard to move. He had two types of pain. One was constant and the other, through his hands, made it difficult for him to make a fist.
105Next, the plaintiff was taken to the report of Dr Meena Mittal, pain physician and specialist anaesthetist, dated 17 May 2022 which followed a consultation with the plaintiff. Dr Mittal had recorded:
“ … He describes a constant pain in the dorsal aspect of the right hand particularly in the lateral three fingers. He describes a sensation of ‘sandpaper like feeling’ associated with numbness and pain rated at 5‑6/10. The pain in the dorsum of the hand is worsened by the cold weather or by utilisation of the right upper limb.”
106It was suggested to the plaintiff that “the three lateral fingers” referred to by Dr Mittal in her report were different to the three fingers the plaintiff had indicated were painful when asked at trial, namely his thumb, index and middle fingers. It was suggested the fingers described as “the three lateral fingers” by Dr Mittal were the middle, ring and little fingers, that those were the fingers causing the plaintiff’s problems and that was what the plaintiff had told Dr Mittal. The plaintiff disagreed. He demonstrated that his thumb, index and middle fingers were causing him difficulty. The remaining two fingers were “a lot better”.[27] He said his thumb, index and middle fingers were numb[28] and there was swelling.[29] The plaintiff also said he was sweating all over his palm and not necessarily only over the lateral three fingers.
[27] Transcript (“T”) 110, Line/s (“L”)10-16
[28] T110, L10-16
[29] T111, L16-20
107It was suggested the plaintiff could have got it wrong when he talked to Dr Mittal.
Q:“… You could’ve got it wrong when you talked to her about it, could you? ---
A:Maybe I express myself wrong. Could be, because you see my English and some of the things I don’t get it, like the way you said, but - maybe she misunderstood me or maybe I said, you know, by mistake different things, you know, wrong. But no, it’s not.”[30]
[30] T109, L1-6
(sic)
108Next, the plaintiff was asked about the pain in his neck. Counsel for the defendant put to him that when he swore his first affidavit in 2020, there was no mention of neck pain. The first complaint of pain in his neck was made recently. The plaintiff responded that he always complained to his doctors and told them he had pain coming from his shoulder all the way down his arm to his fingers. He did not know if it was coming from his neck or what was causing it. The pain hurt his entire body.
109The plaintiff was also asked about the description of the pain he gave to Mr Peter Dixon, hand, plastic and reconstructive surgeon. The plaintiff told Mr Dixon he had constant pain in his right forearm which was worse during the day and occasionally woke him at night. His maximum pain level was reported as “8+”. The plaintiff had intermittent pain in his right shoulder and a constant altered feeling in the region of the wrist and the tips of the first, second and third digits.
110At trial, the plaintiff said he still had pain, but said it was more manageable. He was trying to get on with his life and manage the pain as best he could. He said:
“ … The pain, because you see, Your Honour, before I get lost many times into my mind, you know, and that’s where the doctors didn’t stop me to drive. But now lately I don’t - it doesn’t happen that much to me so I’m trying to live life as it comes, you know, and every time when it’s not that much pain I want to have opportunity to prove myself I’m not disabled, you know. That’s what I try to do and I push myself on many occasions.”[31]
(sic)
[31] T39, L23-30
111Having observed the plaintiff give evidence in Court, I was satisfied he experiences difficulty using the thumb, index and, to some extent, his middle finger. They are painful. I also observed him having difficulty, at times, using his other fingers. In short, the function of the fingers in the plaintiff’s right hand was considerably diminished. Further, I accept the plaintiff was experiencing considerable pain in his neck at the date of trial.
112It was evident at trial, that the plaintiff did not understand what was meant by “lateral fingers”. English was not his first language, and it was apparent there were communication issues between Senior Counsel for the defendant and the plaintiff. At times they were at cross purposes. At the end of the cross-examination, I concluded there may have been errors made by the plaintiff in the way he described his injuries to the doctors. The errors were then translated to the doctors’ reports because of the miscommunication between the plaintiff and the doctors. I do not consider cross-examination discredited the plaintiff.
113The view I formed was consistent with the observations of Dr David Weissman, psychiatrist, that the plaintiff’s speech was accented. He had a good command and comprehension of English overall, but he sometimes found it difficult to properly express his emotional state in English. Nevertheless, consistent with the view I formed, Dr Weissman considered the plaintiff to be a genuine, honest and credible historian who did not embellish. He was observed to be genuinely distressed, traumatised and depressed throughout the interview.
114I formed a similar view and observed that the plaintiff tried his best to give honest answers to the questions he was asked at trial.
Dysfunction
115The plaintiff was cross-examined about various matters with a view to demonstrating that his claimed level of dysfunction was exaggerated.
Driving
116In his report dated 9 May 2022, Dr Weissman identified that the plaintiff told him his doctor did not allow him to drive due to his loss of concentration and his propensity to become lost. Consequently, he could not work. The plaintiff also said he had no power in his right arm and hand.
117In his subsequent report dated 11 April 2023, Dr Weissman reported the plaintiff had tried to drive. Dr Weissman noted:
“… On the one hand he actually enjoys driving, but physically he can’t drive very far, in part due to his poor concentration and memory. He told me that he is at risk of having an accident. This is partly due to his poor concentration and memory, and partly because he sometimes becomes panicky when he drives a car. Sometimes he becomes ‘lost’ when driving. He told me that he has been advised to drive for only 5 to 15 minutes (15 minutes maximum) and he only drives when someone is in the car with him. He rarely drives alone. He drives perhaps once or twice per month.”
118When cross-examined, the plaintiff explained that soon after his accident, the doctor said he could drive shorter distances to build up his self-esteem; however, even if he only drove a short distance, he experienced pain and difficulty. The plaintiff said if Ms Manolache recorded in 2018 that he told her it was impossible for him to drive, that might have been correct at that time. Since then, the plaintiff said his physical capability had improved slightly, but even though he tried to drive, he still had pain.
119The plaintiff maintained throughout his affidavits that since the accident, his driving had been limited. He had relied on other methods of transport and had been provided with taxi vouchers to attend his medical appointments. The plaintiff was cross-examined to try to demonstrate his ability to drive was greater than he claimed. The plaintiff said he drove two or three times a month[32] and if he drove for any longer, his hand hurt.[33]
[32] T27, L16
[33] T37, L23
120The plaintiff was shown a video titled “Baby first car ride ever - part 1 uploaded June 2020”.[34] He agreed he was driving in the video, turning the wheel and clearly using both hands. The plaintiff said the parking seen on the video was undertaken in the same way he parked when he had to park; however, he also explained some of the difficulties he experienced when parking. I did not understand his answer to mean the way he was shown driving on the occasion in the video was the way he was always able to drive.
[34] Exhibit 7
121The plaintiff was asked whether he drove for recreation. He said if there was any distance to be driven, his wife drove and he was a passenger, with the exception of when the plaintiff’s wife wanted to “vlog”.[35]
[35] Vlogging is a form of blogging which utilises video recording to create content for viewers
122The plaintiff was questioned as to how he could maintain his claim he was unable to drive when there were vlogs on YouTube clearly recording him driving. He accepted his wife had YouTube channels called “Outback Daddy” and “Luca Adventures” and that she filmed many activities he did with his daughter including family trips, some of which showed him driving. He did not know how long his wife had been making the videos. She took pictures of the family every day. He said, “I have no idea what she does”.
123The plaintiff explained that sometimes his wife directed him to drive during a particular portion of the vlog she was filming.[36] Once the video content had been captured, his wife resumed driving, and the plaintiff returned to the passenger seat.[37] The plaintiff explained that the driving changeover occurred when a vlogging session arose.[38] This provided consistency because it showed the plaintiff driving in a vlog at the beginning and end of a trip, despite not having driven for the bulk of the journey. The plaintiff emphasised:
“ … I cannot control my wife, sir. She does things and she didn’t even ask me if I want it like that or like that. She just do it and downloading and I don’t know what she did, honestly.”[39]
(sic)
[36] T40, L8; T40, L22
[37] T41, L26
[38] T84, L14
[39] T35, L25-28
124The plaintiff said that when he was asked by his wife to comply with her directions involving her vlog, he could not say no.[40]
[40] T45, L15
125The plaintiff was then asked about a series of vlogs which showed the plaintiff driving during family trips to Gumbuya World,[41] to Ballarat,[42] to the airport and during a trip to Cairns. He accepted he drove at least in part on those occasions but sometimes would switch from the passenger seat to drive, and back again, at his wife’s direction so she could vlog.
[41] Exhibit 15
[42] Exhibit 9
126The plaintiff was also asked about a history he had provided to Ms Joanne McLeod, occupational therapist, of CoWork, for the purposes of preparation of the Vocational Assessment & Labour Market Analysis Report dated 1 July 2022. Ms McLeod reported that the plaintiff had told her:
“‘I can’t drive. The insurance is providing all the taxi for all my appointments.’ He explained that after he experienced an episode of heart palpitations whilst out walking, his GP advised him not to drive, adding: ‘I begged him to let me drive the car a little bit around, because I feel stupid not doing anything.’He was advised that he could drive with ‘someone next to [him]’. Whilst he said he is unable to pull himself up into his truck, ‘in SUV it’s ok’.
Later in the interview, he told me he owns a Ford Territory, and ‘sometimes I drive my wife’s Mercedes as well … but, it’s very limited’. Both cars are automatic. He told me: ‘If allowed to I would be driving to Darwin.’
He said the furthest he had driven, his wife with him, was to Dandenong from Carnegie (about 30 minutes’ drive), ‘she said I don’t keep the lines properly’.
He does drive short distances alone ‘One kilometre or something to supermarket in Carnegie’. In March 2022, Dr Slesenger reported he could drive for up to five minutes.
He does not use public transport. … .”
127The plaintiff agreed he had not attended a doctor’s appointment using his own car and accepted he experienced heart palpitations. He could not recall telling Ms McLeod that his general practitioner had told him to stop driving because he had been complaining of heart palpitations. He explained he was taking very heavy medicines which made him drowsy. That was probably the reason why the doctors had asked him not to drive for a long time. The plaintiff was then asked why, if the doctors had told him not to drive, he had told Ms McLeod he “begged [his doctor] to let [him] drive the car a little bit around”. The plaintiff explained:
“The reason why I say that it’s to let me drive a little bit around when I can just to feel like I’m in, you know, I’m the same, I’ve been driving for so many years, and if they taking away that one from me I feel like, you know, it’s taking everything away.
It’s enough.”[43]
(sic)
[43] T61, L28 – T29, L2
128Having considered all the instances put to the plaintiff of situations when he was driving, I am not satisfied that they damaged his overall credit. The plaintiff gave honest answers to the questions he was asked. He made concessions sensibly and he did not present as a person who was feigning his injury. The plaintiff had been a truck driver, and he expressed how much he had enjoyed that occupation. I accept he was no longer able to drive in the same way he had before the accident because of the injury to his hand. Being unable to drive was a matter of significance for him. Driving brought him joy. It was, as he tried to explain, part of who he was and part of how he defined his self-worth. It is understandable when he was able to, he tried to drive, but that does not mean he did so without pain and disability.
Carrying a bag of apples
129Next, the function of the plaintiff’s right hand was questioned in relation to an occasion when he attended an apple orchard and held a bag of apples in his right hand. The plaintiff said it was:
Q:“… A bag with some apples, I don’t know how many, you can’t see but it’s maybe two or three apples in the bag?---
A:Maybe. Maybe.”[44]
[44] T49, L25-27
130The plaintiff explained he tried to use his right hand because his doctors had told him he had to push himself. He said his ring and little fingers had more power.
131I accept that it was difficult to tell exactly what the plaintiff was holding. The plaintiff’s ability to hold the bag may not have reflected the fact he did not have an injury to his right hand. The bag may have contained two or three apples and may not have been too heavy. The plaintiff’s ring and little fingers may have had more power than his other fingers. I did not form the view this evidence impacted the plaintiff’s credit.
Cooking
The plaintiff was asked about his ability to cook, including to cook a Romanian dish, and it was suggested he was able to cook. The plaintiff was shown a video of a person cooking and initially said the person cooking was his cousin who had visited from Romania after the COVID-19 pandemic. During cross-examination, contrary to the plaintiff’s evidence, it became apparent the vlog had been uploaded on 16 September 2020. The timing of the upload meant the activities depicted occurred either on or before 16 September 2020. It was suggested to the plaintiff that the person in the vlog could not have been his cousin and must have been him. After being confronted with the date of the vlog, the plaintiff conceded if the vlog was uploaded in September 2020, it was him in the vlog and not his cousin. It was then put to him that he changed his evidence because he was “cornered”, and he would only admit to any use of his right hand if caught on a film. He disagreed. He said he changed his evidence because he had gone home and asked his wife to replay the vlog, and she confirmed he was the person in the vlog. The plaintiff explained he was confused because his cousin made a video as well when he came to Australia.
132I accept the plaintiff’s initial response, that the person in the video was his cousin, was damaging to his credit; however, because the central issue was whether the plaintiff was disabled from using his right hand, I do not consider the plaintiff’s lack of recognition of himself in the vlog means I must reject his evidence entirely.
133When asked about the content of the vlog which showed the plaintiff cooking, in my view, he satisfactorily explained what he was doing and how he was able to do it. In the vlog, although the plaintiff was able to use his hands to some extent, it was not without some dysfunction.
134Pain and dysfunction ebb and flow with many injuries and I accept that was the case with respect to the plaintiff. The plaintiff indicated in his evidence his function had improved slightly. I also accept he had been making the Romanian capsicum dish he could be seen cooking on the vlog for many years. It was a dish his family enjoyed eating, and cooking the dish was something he enjoyed doing. It is understandable, in the context of an ongoing injury, that the plaintiff would have tried to undertake activities he enjoyed, including cooking. In the vlog the plaintiff could be seen shaking containers of herbs and stirring them into chopped garlic and onion; placing black pepper into his hand and adding that to meat; loading the meat into the pot; stirring the meat; taking the lid off a can of passata after his wife had opened the jar, and putting meat into the peppers and placing the peppers into another pot. Those actions by the plaintiff do not mean I must reject his evidence entirely, particularly in light of other objective evidence of pain and dysfunction which I may take into account.
Ability to move fingers and hand
135Mr Buntine recorded in his report dated 30 September 2019, under the heading “Difficulty moving the fingers”, that the plaintiff had said:
“… he often cannot move his right index, middle finger and thumb but that, when he puts the hand into hot water, he was able to move the digits much better. He said he does not make a lot of use of his right hand and that grip with the hand is weak.”
136The plaintiff was asked about the history he had given:
Q:“… But is it true that you often can't move your right index, middle finger and thumb?---
A:No, sir. You can move them slowly like this (demonstrating) but you cannot use them.”[45]
[45] T55, L17-20
137It was apparent during the plaintiff’s demonstration that he was experiencing difficulty moving his fingers.
138In his report dated 21 June 2022, Dr Micut observed, in relation to the plaintiff:
“He is having quite significant difficulty in using his R hand - this affects all his daily activities, but especially shopping, cleaning. As mentioned, his lifting is limited to 2kg with the R hand. Also, he can’t do things where grip strength is required (eg. opening jars). … .”
139The plaintiff was asked in cross-examination whether, contrary to what Dr Micut had reported, he had opened a jar since the accident. The plaintiff said he had, but only with the help of somebody else. While the ability to open a jar arguably suggested the plaintiff retained the ability to use his right hand, that conclusion does not necessarily follow. It was reasonable, in daily life, that the plaintiff might need to open a jar. He did not do it alone. I do not consider this evidence impacts the plaintiff’s credit.
Eating and holding utensils
140The plaintiff was cross-examined about his ability to eat using utensils.
141He was asked about Ms Manolache’s report dated 16 March 2022 and her statement that the plaintiff had told her it was impossible for him to use his hand to feed himself. The plaintiff could not recall this statement but agreed his physical capacity had slightly improved and he could eat with his right hand, although it remained hard.
142A video was played of the plaintiff eating a meal at TGI Fridays at Chadstone in October 2019. In the video, the plaintiff appeared to be able to bend his fingers and use food utensils. The plaintiff explained he was able to try to hold a knife and cut meat because his function had improved slightly, but he still did not do either properly. Eating using utensils remained difficult. He was able to eat ribs without having to cut the meat because it was soft.
143The plaintiff was next taken to a vlog which showed him bending his fingers and using food utensils. The function of the plaintiff’s fingers did not appear to be restricted, and he appeared to be capable of using his right hand to eat. Similarly, in a further video taken on Father’s Day, the plaintiff could be seen using utensils to eat. The plaintiff explained his ability to use the utensils by indicating that the fork rested on his third finger and his index finger, took no weight most of the time. He could eat and feed himself.
144Although the plaintiff’s credit was questioned because he seemed to have some ability to cut and hold a knife, and to use utensils to eat, this did not amount to much. The plaintiff appeared to be making genuine attempts to eat, including at restaurants. He said:
“… I don’t know. I’m not allowed to eat? I don’t understand. I’m trying – I told you I never hide away from the fact of trying and doing my best of doing stuff. I want to be normal again. I want to be like everybody else. It doesn’t mean if I eat something or if I go somewhere it’s doing something wrong or like that. It’s a little bit upsetting because ---.”[46]
[46] T68, L22-28
145He wanted to be “like everybody else” and aside from that, he needed to eat. I do not consider his credit was affected by this evidence.
Pushing a stroller/shopping trolley
146The plaintiff was asked whether he could push his daughter in her stroller. He said he could. He demonstrated how he held the stroller and said he employed the same method to use a shopping trolley. He explained: “I am trying to live a normal life.” However, it was apparent he had difficulty using his fingers to grip the stroller and by extension, the trolley.
147I accept the plaintiff was genuine in his attempts to use the stroller and the shopping trolley and his right hand was disabled in doing so.
Dismantling a swing chair
148The plaintiff was shown a vlog of himself dismantling the seat of a child’s swing chair. It was put to him he was able to use a forceful grip and pincer movement. The plaintiff explained it was very hard for him to undo the seat. He agreed his thumb may have appeared to be white in the vlog. This was because he did not have any power, and he had to press down and force it. He also explained that when the video was filmed, he was in the video complaining about having to press down and the pain he was experiencing in his hand, but his wife cut the video. The plaintiff explained the job was supposed to be easy, however, he struggled to do it. His fingers were hurting but he needed to push down on the screwdriver to complete the job.
149I accept that he spoke truthfully about the pain he was experiencing and although he used his fingers, he did so with difficulty.
Rigid heavy vehicle licence
150The plaintiff was asked why his rigid heavy vehicle licence had been renewed if he was going to be unable to work. When asked about this, the plaintiff said he did not know when the licence was renewed and whether it was renewed in 2022. The plaintiff said he was “still hoping all the way” which I understood to mean he remained hopeful that one day he may be able to drive again. It is understandable he hoped to be able to return to driving because it had been his career and that he renewed his licence in that context. I do not consider this affects his credit.
Trips to the Philippines
151Finally, the plaintiff was cross-examined about his trips to the Philippines, and it was suggested that he did not go to the Philippines in 2019 to see his wife’s family but rather went on a holiday. The plaintiff disagreed and explained he went to the Philippines to accompany a member of his wife’s family who was returning to Australia to assist his wife.
152I accept the plaintiff travelled to the Philippines to accompany members of his wife’s family to and from Australia.
Other issues
153The defendant played only 15 out of 63 vlog excerpts at trial and the defendant’s medico-legal experts were not asked to opine on the vlog footage at all. Further, the defendant had undertaken 50.25 hours of surveillance observation but had adduced no evidence about that. Because the vlog and surveillance footage were available and could have been shown to the defendant’s experts but were not, they do not provide a basis for rejecting the plaintiff’s treating doctors or medico-legal experts’ opinions and do not support an adverse credit finding. Like In Church v Echuca Regional Health, the plaintiff largely accepted he could do something if it was suggested he could but gave context to how that was possible.
154Overall, the plaintiff did not present in a way that suggested he was dishonest and not telling the truth. I accept he was a truthful witness, and his credit was not impacted by the matters about which he was cross-examined.
Compensable physical injury
Medico-legal reports
155A conclusion that the plaintiff suffered damage to his radial nerve and continues to suffer from Complex Regional Pain Syndrome is not inconsistent with the preponderance of the medico-legal opinions.
156In relation to the plaintiff’s physical injuries, the only expert report relied upon by the plaintiff was the expert opinion of Dr Meena Mittal, pain physician and specialist anaesthetist. Dr Mittal examined the plaintiff on 17 May 2022 and prepared two reports, dated 17 May 2022 and 3 May 2023.
157In her first report, Dr Mittal referred to the plaintiff’s description of his injury and the constant pain he described in the dorsal aspect of the right hand, particularly in the lateral three fingers. Dr Mittal recorded that the plaintiff described the sensation as a “sandpaper like feeling” which was associated with numbness and pain rated at five to six out of ten. Dr Mittal also noted the plaintiff described experiencing pain twice a week which commenced from the right side of the neck and radiated to the arm, the forearm and the entire right hand. The plaintiff rated the pain as ten out of ten and said it was worse in cold weather.
346Second, Dr Horsley’s opinion is the most recent, Dr Slesenger having prepared his most recent report on 6 July 2022.
347Third, Dr Horsley’s opinion is consistent with the weight of the evidence from the plaintiff’s treating practitioners when considering each of the plaintiff’s right-hand injury and his psychiatric condition separately.
348Dr Jigau in his report dated 16 June 2021, opined the plaintiff would be unable to drive a truck, and that his prognosis was poor.
349Dr Micut, general practitioner, in his report dated 21 June 2022, noted the plaintiff had ongoing pain and sensitivity in his right hand. He could only lift up to 2 kilograms with that hand. The anxiety and depression symptoms affected his concentration, motivation and ability to interact with people, and to cope with the work difficulties and stressors. He opined that the plaintiff was unlikely to have significant improvement in the future, so his prognosis was poor.
350In his report dated 30 March 2023, Dr Micut identified the plaintiff had undergone nerve conduction studies which demonstrated mild right carpal tunnel syndrome, but that there had been no significant changes in the plaintiff’s condition.
351Dr Blombery, vascular surgeon, in his reports dated 25 January 2021, 3 April 2022 and 28 April 2023, opined that the plaintiff’s injury had markedly impacted his ability to work. He had ongoing and severe pain which would prevent him from undertaking truck driving or any other meaningful employment activity involving the use of his dominant right arm. His prognosis for recovery was poor.
352Ms Manolache, psychologist, in her report dated 12 July 2018, indicated the plaintiff was incapacitated for work.
353In her report dated 16 March 2022, Ms Manolache recorded her view that it was doubtful the plaintiff would ever work again, especially in his field of work where the ability to use his hands and arms would be crucial. She also opined that the plaintiff’s psychological health was related to his physical health and capacity to work. She did not consider him capable of returning to the workforce.
354On 2 June 2023, Ms Manolache opined that the plaintiff did not have capacity to perform sustained activities and responsible duties. His work injury had affected his ability to work in a physiological way (reading the reports) and in a psychological way (accident trauma and the continuous reiteration of the event). Taking the nature of his physical injury into account and his unfavourable prognosis, as well as his age, ability for retraining, significant psychological damage and its manifestations, psychotropic medication with its negative results on his attention, memory, capacity to concentrate and his energy levels, Ms Manolache opined it was realistic to conclude that the plaintiff would not be able to work for the rest of his life. She considered he did not have a capacity for employment.
355Ms Manolache also considered the plaintiff was unsuitable for retraining due to his age, heavy psychiatric medication, lack of former skills to work in an office-based environment and the development of a depressed brain over the six-and-a-half years of stress, limiting his ability to learn and retain information and to be motivated.
356Fourth, Dr Horsley’s opinion is consistent with the preponderance of expert medical opinion, both in relation to the plaintiff’s injury to his right hand and his psychiatric condition when each are considered separately.
357In relation to the plaintiff’s injury to his right hand, early medical opinion suggested that the plaintiff may have had some residual work capacity. In his report dated 16 May 2017, Mr Anstee, plastic and reconstructive surgeon, assessed the plaintiff as having a residual work capacity. Mr Anstee said an example of alternate duties for the plaintiff would be riding his truck with a driver, helping to unload with his left hand and assisting with direction.
358In his report dated 25 July 2017, Dr Nam, plastic and reconstructive surgeon, opined that the plaintiff may have had capacity for alternate duties provided they predominantly only required use of his left hand. Dr Nam noted the plaintiff’s chronic pain may have significantly reduced his mental concentration at work. He also noted the plaintiff’s driving capacity was limited, and it was unlikely he would return to work as a truck driver.
359Mr Dixon, hand, plastic and reconstructive surgeon, opined in his report dated 13 February 2018, that the plaintiff had a current work capacity for “suitable employment” as defined in the undated return to work plan. In his opinion, “suitable employment” required sedentary duties with the use of the non-affected hand; breaks as needed; rotation of duties as needed; avoidance of prolonged repetitive and forceful movement of the right hand and restricted lifting up to 500 grams. It was also noted that “transportation assistance may be required”.
360In contrast to those earlier opinions, in his report dated 30 September 2019, Mr Buntine, hand, plastic and reconstructive surgeon, opined that, taking the plaintiff’s physical and mental conditions together, as opposed to separately, it would be unlikely the plaintiff would ever work again.
361Mr Buntine did not consider each of the plaintiff’s injuries separately; however, his opinion is consistent with the longstanding opinion of Dr Blombery. I prefer the opinions of both Mr Buntine and Dr Blombery. They are the most recent. Dr Blombery has been treating the plaintiff over many years and there was no suggestion the plaintiff’s treatment has been inappropriate. Indeed, Dr Horsley commented that the plaintiff had been “appropriately managed” by Dr Blombery. Further, the objective symptoms experienced by the plaintiff which I have found, demonstrate significant ongoing disability of his right hand.
362In relation to the plaintiff’s psychiatric condition, in his second report dated 4 March 2019, Dr Chowdary, consultant psychiatrist, said the plaintiff did not have capacity for full-time employment. From a psychiatric perspective, Dr Chowdary believed the plaintiff had a work capacity and with modified duties, could work as a packer, product assembler or truck allocator. He noted that worsening pain could trigger a relapse. Dr Chowdary did not recommend the plaintiff undertake a role as truck driver or courier delivery driver as the plaintiff’s pain threshold was very poor and his focus may not have been there. He suggested it would be worth having the plaintiff re-assessed for work capacity in nine months’ time.
363Later that year, in his report dated 9 October 2019, Dr Prytula, consultant psychiatrist, considered, when he saw the plaintiff, the plaintiff did not have any work capacity, although he acknowledged the plaintiff was unlikely to suffer from harm by engaging in daily living activities.
364Dr Weissman, consultant psychiatrist, in his report dated 9 May 2022 opined that due to the nature, severity, extent and chronicity of his employment-related psychiatric conditions and mental injuries, the plaintiff was permanently incapacitated for all work for the foreseeable future, including his pre-injury duties, suitable duties or alternate duties. He did not consider the plaintiff to be a candidate for occupational or vocational rehabilitation, particularly given his advancing age (reported to be fifty-four years), his time out of the workforce (more than five years at that time), and his relative lack of transferable skills outside of truck driving and manual labour.
365In his report dated 11 April 2023, Dr Weissman opined that from a psychiatric point of view, the plaintiff had no work capacity. Dr Weissman recognised the plaintiff was suffering from a moderately severe group of employment-related psychiatric conditions and mental injuries that significantly impacted his concentration and short-term memory, as well as his capacity to drive a vehicle for any meaningful distance. His self-esteem and confidence were very low.
366Dr Weissman noted that, in his opinion, the plaintiff was not a candidate for occupational rehabilitation given his advancing age (fifty-five years) and his time out of the workforce, as well as his lack of transferable skills outside of truck driving and manual labour.
367In her report dated 17 May 2022, Dr Mittal, pain physician and specialist anaesthetist, was of the opinion the plaintiff was totally incapacitated for work in any capacity as a result of his injuries, particularly given he has minimal use of the right upper limb. His prognosis was poor, and he was likely to suffer from pain and dysfunction well into the foreseeable future. Dr Mittal’s opinion remained the same in her subsequent report dated 3 May 2023.
368As Dr Horsley noted in her report, the balance of the psychiatric opinion confirmed that the plaintiff’s psychiatric condition significantly impacts upon his concentration and short-term memory, as well as his capacity and ability to drive a vehicle alone or for any meaningful distance. I accept that the plaintiff has no work capacity on psychiatric grounds alone.
369Taking account of all the evidence, even if the plaintiff had a residual work capacity, in my view, the plaintiff is unable to work in “suitable employment” reliably and consistently. He is not well educated. His English literacy skills are limited. He has only basic computer skills. He cannot go back to driving. He is taking strong drugs that cause drowsiness. He experiences concentration and memory difficulties. Many years have passed since he was in the workforce, and he has not been offered a job in any of the suggested roles. I am satisfied the plaintiff has no realistic work capacity which would enable him to work reliably and consistently in any of the suggested jobs.
Is the loss of earning capacity permanent?
370Having found that the plaintiff has no realistic work capacity, I also find his loss of earning capacity is permanent.
Physical pain and suffering consequences
371A finding that the plaintiff has suffered a more than 40 per cent loss of earning capacity is at least a “very considerable” pecuniary loss and pain and suffering consequence and it is unnecessary for me to say much about the plaintiff’s pain and suffering consequences. However, for completeness I make the following observations.
Pain
372First, having found the plaintiff to be generally credible, I accept the plaintiff’s affidavit evidence that his pain and dysfunction is significant.
373The plaintiff’s evidence was generally consistent with the evidence from his treating practitioners. Ms Manolache reported in her report dated 16 March 2022, the plaintiff was in constant pain, 24 hours a day, for which he was medicated.
374Dr Weissman also noted in his second report dated 11 April 2023, the plaintiff was experiencing pain in the right side of his neck which sometimes radiated into his right shoulder, down his dominant right upper arm, into his right forearm and into his dominant right hand, with pain in the lateral three digits of his right hand. The pain was present ‘“24/7 full time’”. The plaintiff experienced constant numbness in the dorsal and dorsolateral aspect of his right hand. This felt like a combination of burning pain and “sandpaper” as well as the numbness. He also experienced abnormal sensations in the lateral three digits of his right hand with a combination of a burning sensation and numbness in the tips of those three digits. He had decreased strength and power in those three digits, impacting his ability to open jars and bottles.
375The plaintiff reported neck pain on the right side radiating towards the right shoulder and the forearm. The pain in the neck was constant when it occurred, which was about twice a week. It could be aggravated by right lateral rotation, right-sided neck extension and repetitive utilisation of the right upper limb. The pain radiated from the right side of the neck to the upper arm, the forearm and into the entire right hand. It was rated as ten out of ten and was described as a “ripping type feeling”. Once it commenced it could last for up to 24 hours.
376The plaintiff reported a second type of pain which was separate. It was constant in nature and was present in the dorsum of the right hand. It was localised to the lateral three fingers associated with numbness and pins and needles. He had decreased motor function in his right hand with numbness and pain rated at six out of ten and described as a “sandpaper like feeling”. The pain was aggravated by the cold weather.
377The plaintiff also reported pain in the right medial forearm and the medial two fingers associated with pins and needles and a “heavy feeling”.
378I find the plaintiff experiences significant constant neck pain on the right side of his neck, radiating towards the right shoulder, the forearm and the right hand. The pain is aggravated by right lateral rotation, right neck extension and use of the right upper limb. The pain is experienced as a “ripping” sensation which can be rated as ten out of ten on a pain scale. It can also be experienced as a shooting pain. The plaintiff also experiences a second type of constant pain in the dorsum of the right hand, localised to the thumb, index and middle fingers. He also experiences numbness and pins and needles. The pain is rated as six out of ten and is experienced as a “sandpaper like feeling”.
Medication
379Second, the plaintiff has had a consistent history of treatment and is taking a significant amount of daily prescription medication for his pain, his mental health conditions and his inability to sleep.
380I find the plaintiff requires considerable daily prescription medication to treat his injuries and symptoms.
Sleep
381Third, the plaintiff’s sleep has been interrupted as a result of his injuries, notwithstanding he is prescribed substantial medication.
382In Dr Weissman’s report dated 9 May 2022, Dr Weissman described the plaintiff’s experience of disrupted sleep with nightmares and flashbacks. The plaintiff reported initial and middle insomnia where he will fall asleep and then wake at 12.30am. He stays awake for an hour and then falls asleep again. He wakes again at 4.30am and then feels like sleeping again at 9.00am.
383Dr Horsley noted in her report dated 18 May 2022 that the plaintiff suffered from bad dreams approximately two to three times per month. He experienced flashbacks weekly and was tearful and emotional. His sleep pattern was poor, and he often did not sleep at night and then slept two to three hours in the morning. He is tired all the time and is not refreshed.
384In Ms Manolache’s report dated 2 June 2023, she noted the plaintiff suffered nightmares and could not sleep, despite medication.
385The plaintiff acknowledged in his third affidavit that the Circadin medication had helped with his insomnia, however, he continues to suffer nightmares and wakes a few times a night.
Weight
386I accept the plaintiff has gained over 30 kilograms in weight. He feels embarrassed about this.
Social life
387The plaintiff’s claim to have suffered a reduction in his social life was supported to some extent by Ms Manolache’s report dated 2 June 2023. Ms Manolache reported the plaintiff had developed a tendency to avoid people and did not socialise anymore. This was consistent with Dr Micut’s statement in his report dated 21 June 2022 that the plaintiff had become quite isolated socially following his injury and the development of the Adjustment Disorder. Further, the plaintiff described to Dr Weissman, who reported in his first report dated 9 May 2022, that he did not really socialise anymore. He had one friend who lived on a farm on Phillip Island who he infrequently visited. Even then, he said he sometimes had to cut those trips short because he does not feel the same as he did before.
388I accept the plaintiff has become more socially isolated as a result of his injury. It was, however, evident from the video evidence and the vlogs, that he was still able to go out and spend time with friends and in the community. I do not place significant weight on this consequence.
Activities of daily living
389Dr Blombery confirmed in his report dated 3 April 2022 that the plaintiff had difficulty toileting himself, limitation in washing and also in personal hygiene because of the pain in his dominant arm. He noted the plaintiff could only carry light objects. He said the plaintiff found it difficult to shop and could not hold a shopping bag in his right hand. His wife did a lot of the tasks around the house and Dr Blombery said his wife’s sister also helped.
390Ms Manolache, in her report dated 2 June 2023, observed that during counselling sessions, it had become obvious that the plaintiff’s quality of life had drastically diminished and his ability to perform domestic, community and social activities had been continuously deteriorating.
391Dr Micut, in his report dated 21 June 2022, identified that the plaintiff was having quite significant difficulty using his right hand. This was affecting all his daily activities, especially shopping and cleaning. He was limited to lifting 2 kilograms and he could not do things requiring grip strength.
392The plaintiff reported to Dr Weissman, who noted in his report dated 9 May 2022, that the plaintiff shaves only once a week and he no longer showers himself every day. In Dr Weissman’s later report dated 11 April 2023, he noted the plaintiff showered two to three times per week. He was able to dress himself on a daily basis, but it was slow and difficult. He was no longer able to do cooking. His sister-in-law did the domestic chores and cooking. He was no longer able to do laundry or gardening, although he said they do not have a garden, just a few pots outside.
393Dr Horsley noted in her report dated 18 May 2022, the plaintiff had reduced finger extension and flexion and could not make a fist. His power was reduced, and he dropped things. The plaintiff told her that his right forearm was actually powerful so he could hold shopping bags on his right forearm, but not in his hand. He had difficulty opening jars, door handles and taps. He was frustrated by his inability to attend to his personal hygiene, particularly toileting himself, which he said could take 45 minutes to an hour.
394I accept that the plaintiff experienced difficulty toileting himself. This alone is a substantial consequence with respect to his activities of daily living. Additionally, I accept he is restricted in washing dishes and performing domestic chores. He cannot for instance do the laundry or garden. He can only carry light objects around the house. He has difficulty shopping because he cannot hold a shopping bag. He has difficulty opening jars, door handles and taps. However, as he acknowledged in cross-examination, other than some vacuuming on weekends, he did not do much around the house before he was injured.
Sports and hobbies
395The plaintiff’s daughter said her father previously had a herb and vegetable garden which he was passionate about. She said as far as she is aware, he has not worked in the garden since his accident.
396She said he previously enjoyed going on long walks with her. Now it is difficult to convince him to do that, and when they do go walking, they only walk a short distance before he wants to return home.
397Dr Weissman, in his report dated 9 May 2022, identified that the plaintiff had previously enjoyed hiking, dancing, playing table tennis and occasional lawn tennis. The plaintiff referred to an inability now to enjoy dancing, hiking, camping and fishing. He did not refer to loss of ability to play table tennis and occasional lawn tennis. The plaintiff recounted how he could not undertake leisure activities or participate in his hobbies because of his physical symptoms. The plaintiff said that sometimes listening to music brightened him up, but he did not always feel like listening to music. He also found he felt better upon travelling to the Philippines on a couple of occasions.
398Dr Weissman also identified in his report dated 11 April 2023, that the plaintiff occasionally went to a theme park called Gumbuya Park in East Gippsland, and sometimes to the Sovereign Hill Motor Inn in Ballarat in the warmer months. The plaintiff did not otherwise have many leisure and recreational activities and hobbies.
399I accept the plaintiff is no longer able to enjoy hiking, camping or fishing as claimed.
Driving
400Dr Weissman reported in his report dated 9 May 2022, that the plaintiff had informed him his doctor did not allow him to drive. Despite this, the plaintiff also said he occasionally might drive alone for one to two minutes or, if someone is in the passenger seat, for 10 to 15 minutes. He said he lives about one and a half kilometres from Chadstone, and he occasionally goes there, although he does not stay long.
401In his subsequent report dated 11 April 2023, Dr Weissman identified the plaintiff actually enjoys driving, but physically he cannot drive far, in part due to his poor concentration and memory which puts him at risk of an accident.
402I find the plaintiff is unable to drive long distances. Further, given his mental health condition, it is not safe for him to do so.
Relationship with partner
403Ms Manolache in her report dated 2 June 2023, noted the plaintiff’s relationship with his wife was strained. He felt he could not share his emotions with her anymore as she has also had enough. He suggested to Ms Manolache, “‘I want to go in a cave, somewhere far from people, stay alone, in the nature to heal’”.
404Dr Weissman identified in his report dated 9 May 2022 that the plaintiff had described his relationship with his wife as “‘not that good even though we’re trying to work it out’”. They sleep in different rooms. His sex drive and intimate relations have been impacted. For a long period after the accident, his wife “blamed” him. In his subsequent report dated 11 April 2023, Dr Weissman recorded that the plaintiff’s relationship with his wife was slightly better. They were trying to work things out because of their young daughter. His intimate relationship remained affected.
405Dr Horsley also noted in her report dated 18 May 2022 that the plaintiff’s relationship with his wife had soured.
406I accept the plaintiff’s injury has had an impact on his relationship with his wife.
Children
407Although the plaintiff is no longer able to lift his daughter, he nevertheless said he gets a great deal of enjoyment out of his daughters, especially his youngest daughter.
Are the consequences of the Plaintiff’s physical injury alone “serious”?
408I find the effects on the plaintiff’s work capacity and his ability to drive have been brought about because of both his physical and psychological injuries. I am satisfied though, that considering the other physical impairment consequences for the plaintiff on their own, those consequences may be described as “significant” or “marked” and “at least very considerable” when judged in comparison with other cases in the range of possible impairments.
Psychological pain and suffering consequences
409I have considered the plaintiff’s mental disorder separately from his physical injury. As noted, at the time the plaintiff was seen by Dr Chowdary, the plaintiff’s mental state was sufficiently serious that Dr Chowdary observed the plaintiff had “thought about cutting his arm”. Since Dr Chowdary prepared his reports, each of Dr Prytula, Dr Raghav and Dr Weissman diagnosed the plaintiff with a Major Depressive Disorder. At the date of trial, the plaintiff thought about the work accident two to three times per week and had flashbacks on a weekly basis. He continued to have occasional non-specific bad dreams. He felt numb, empty and grumpy, like everything was gone, and he felt worthless. He was fragile and felt depressed every day. He experienced sleep disturbance. He had put on weight. He had no interests or motivation, and he had lost self-confidence and self-esteem. Nothing much gave him pleasure. In my view, not much has improved for the plaintiff since then.
Are the consequences of the Plaintiff’s psychological injury alone “severe”?
410I accept that subjectively, the plaintiff considers his psychological state to be severe.
411I have also compared his psychological injury with the spectrum of other injuries. I am satisfied that objectively, the plaintiff’s pain and suffering consequences arising from the psychiatric injury alone are “severe” when judged by comparison with other cases in the range of possible impairments or losses. They are more than “at least very considerable”. He is constantly depressed. He takes prescription medication for his psychiatric condition. His sleep is interrupted, and he suffers nightmares. He feels depressed every day. Nothing much gives him pleasure.
Conclusion
412For the reasons expressed, I am satisfied the pecuniary loss and pain and suffering consequences of the plaintiff’s right-hand injury alone, are serious. They are “at least very considerable” and certainly “more than ‘significant’ or ‘marked’”.[53]
[53] Poljak (supra) at 140
413I am satisfied the pecuniary loss and pain, and suffering consequences of the plaintiff’s mental disorder alone are severe. They are more than “at least very considerable”.
414I shall hear from the parties in relation to the appropriate orders and costs.
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