Maddock v Hanson Australia (Holdings) Pty Ltd (ACN 006 679 734)
[2020] VCC 1614
•23 November 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-01967
| MICHAEL MADDOCK | Plaintiff |
| v | |
| HANSON AUSTRALIA (HOLDINGS) PTY LTD (ACN 006 679 734) | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 September 2020 (via Zoom hearing) | |
DATE OF JUDGMENT: | 23 November 2020 | |
CASE MAY BE CITED AS: | Maddock v Hanson Australia (Holdings) Pty Ltd (ACN 006 679 734) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1614 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the right upper limb – pain and suffering damages – disentangling – range case
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Jones v Dunkel (1959) 101 CLR 298; Humphries & Anor v Poljak [1992] 2 VR 129
Judgment:Leave granted to the plaintiff to issue proceedings at common law to recover pain and suffering damages with respect to injury to the right upper limb.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Frederico | Maurice Blackburn |
| For the Defendant | Ms Tsikaris | Moray & Agnew |
HER HONOUR:
1 This is a serious injury application brought by the plaintiff for injury suffered on 19 July 2011 when the plaintiff was loading 10-kilogram bags of metal fibres into an agitator over a period of time from about 6.00am to 1.00pm when he developed pain in his right elbow.
2 In order for the plaintiff to be entitled to claim damages, his injury must satisfy the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985 (“the Act”). There, “serious injury” is defined as meaning:
“(a) permanent serious impairment or loss of body function.”
3 The body function relied upon is injury to the plaintiff’s right upper limb.
4 Leave is sought in relation to pain and suffering damages only.
5 The plaintiff relied upon three affidavits: two affidavits affirmed by the plaintiff sworn on 12 December 2017 and 4 September 2020, and one sworn by his wife, Eril Maddock, on 8 September 2020. I have not summarised the plaintiff’s or his wife’s affidavits, nor the plaintiff’s evidence; however, I will refer to the relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered. I have read all the tendered material.
The issues
6 The issues raised by the defendant were:
(a) This is a “range case” and whether the consequences the plaintiff complains of meet the serious injury threshold for pain and suffering;
(b) The plaintiff is required to disentangle the pain and suffering consequences that the plaintiff complains of with respect to the right elbow injury from the consequences of the plaintiff’s comorbidities, both work and non-work related.
Relevant legal principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]Section 134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)“the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with Hanson Australia (Holdings) Pty Ltd;[2]
(b)“the injury” with its resulting impairment must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c)“the consequences” to the plaintiff of his impairment to the right upper limb in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[4]
[2]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[3]Barwon Spinners (supra) at paragraph [33]
[4]Section 134AB(38)(b) and (c) of the Act
9 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[5]
“... many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. ...”
[5][1998] 1 VR 702
10 The Court of Appeal was considering the wording under the Transport Accident Act, which is the same wording adopted under the Act. Accordingly, I adopt the reasoning of Callaway JA outlined above.
11 Consequently, the Court must consider the impairment of body function suffered by this particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
12 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[6]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[7]
[6][2009] VSCA 181
[7](ibid) at paragraph [42]
13 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[8]
[8]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [44]
14 The test for “serious”, as set out in paragraphs (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
15 In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[9]
[9]Section 134AB(38)(h) of the Act
(b) must make the assessment of “serious injury” at the time the application is heard;[10]
(c) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[11]
[10]Section 134AB(38)(j) of the Act
[11] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
Credit of the Plaintiff
16 The plaintiff is aged fifty-four. He left school at age fifteen when he was in Year 9. He has always been in work performing physical work. Despite his injuries, currently the plaintiff works full-time hours, including overtime. The plaintiff answered questions as best he could. He was a man of few words. He gave his evidence in a consistent and reliable manner. He impressed me as being highly motivated to continue working, despite his limitations and the pain he reported. He did not exaggerate nor embellish his consequences in Court, which was consistent with his presentation to the medical witnesses. I note that Mr Grossbard said he believed the plaintiff had a stoic attitude. That is how the plaintiff presented in Court.
17 I rely on the statement of the Court of Appeal in Haden Engineering Pty Ltd v McKinnon[12] that the plaintiff should not be penalised for his stoicism. Further, there was no suggestion by any of the medical witnesses that he attempted to exaggerate or embellish his presentation in a clinical setting.
[12](2010) 31 VR 1
18 The plaintiff was cross-examined about his ability to travel. The plaintiff was forthcoming in his evidence about his enjoyment of travel. His failure to disclose this in his affidavit did not affect his credit. The plaintiff’s evidence was that he and his wife enjoyed travelling, mainly in Asian countries. In recent times, they have travelled every two or so years. He said they generally flew to Singapore and then would join a cruise ship. The trips were planned by his wife.
19 The plaintiff’s credit was not successfully attacked in cross-examination.
20 I accept the plaintiff was a witness of truth.
The Plaintiff’s injuries
The right upper limb injury
21 It was agreed by all medical witnesses that the plaintiff suffered an injury to his right upper limb. The injury was described by the relevant medical witnesses as follows:
22 In July 2011, following his work injury, the plaintiff was referred to Mr Jonathon Hooper, orthopaedic surgeon. An MRI scan was undertaken, and the plaintiff was informed he had a problem with the elbow entrapping the ulnar nerve.
23 In February 2012, a corticosteroid injection was administered without any benefit. Mr Hooper undertook an ulnar nerve transposition at the right elbow. The surgery was complicated by infection and the wound was very slow to heal. The plaintiff reported increased pain. He subsequently underwent a course of physiotherapy. He had steroid injections and PRP injections without benefit. The plaintiff was informed nothing further could be done. The plaintiff put up with pain in his elbow, forearm and hand, managing it with Nurofen and Panadol.
24 The plaintiff continued to work.
25 In October 2015, the plaintiff underwent an MRI scan of the right elbow, at the request of Mr Chiu. The MRI findings confirmed neuritis of the ulnar nerve at the level of the medial epicondyle but no compressive mass lesions were seen. Mr Chiu thought a formal anterior transposition might be required.
26 In November 2016, the plaintiff attended Mr Chiu, and reported increased pain in the right elbow. Mr Chiu organised an x-ray and MRI scan of the right elbow.
27 In December 2016, the x-ray and MRI scans of the plaintiff’s right elbow confirmed mild common extensor origin tendinopathy and chronic moderate common flexor origin tendinopathy. On examination, his symptoms were centred over the medial epicondyle. Mr Chiu recommended an ultrasound-guided cortisone and local anaesthetic injection. The plaintiff was reviewed following injection and the plaintiff reported an excellent response to his symptoms. He returned to work duties and, as a result, his symptoms returned. A further injection was repeated. The plaintiff reported a positive response in his symptoms for the first 48 hours, then his symptoms returned. Mr Chiu recommended surgery.
28 In July 2019, Mr Chiu performed a right elbow medial epicondyle debridement and repair of the common flexor origin and neurolysis of the ulnar nerve.
29 On 16 October 2019, the plaintiff was cleared for normal duties.
30 In March 2020, the plaintiff was medically examined by Associate Professor Anthony Buzzard, general surgeon. Professor Buzzard reported that the plaintiff has ongoing right elbow symptoms in the form of right elbow pain, which is improving. He said it was appropriate for the plaintiff to have oral analgesic and like medication. He said his condition is stable and permanent.
31 In July 2020, Mr C-Ong, pain management specialist, diagnosed chronic right elbow pain syndrome from osteoarthritis and degenerative disease, with developing neuropathic components, and post multiple surgeries pain syndrome. He said the plaintiff is precluded from doing any alternative duties that are manual or repetitive or require pulling or pushing (in respect of his elbow injury). He said the plaintiff is precluded from doing any alternative duties that require manual reliance on lower limb and upper limb-aggravating tasks due to the nature of his condition. Further, he will always suffer pain and limited function to his right elbow. He said the plaintiff’s prognosis in respect of his right elbow remains guarded, he is likely to suffer persistent pain symptoms and pain-related issues and limited capacity for the foreseeable future.
32 In July 2020, Mr Garry Grossbard, orthopaedic surgeon, reported that the plaintiff developed a medial epicondylitis of the right elbow with subsequent ulnar neuritis associated with neurological symptoms. The plaintiff underwent medial epicondylitis and ulnar nerve release surgery, and then a further two other debridement and repair surgeries. Mr Grossbard said the plaintiff will suffer ongoing elbow pain, particularly with activity, and he should avoid activities involving repeated lifting with his arm.
The right ankle injury
33 In 2013, the plaintiff fell at work and suffered a fracture of his right ankle. He had no surgery to the ankle, which was managed conservatively in a Cam boot.
34 In February 2015, the plaintiff re-injured his right ankle, which he says now feels as though it is permanently sprained.
The right knee injury
35 In May 2015, the plaintiff injured his knee at work and was referred to Mr James Chiu, orthopaedic surgeon, and underwent surgery of the right medial compartment and patellar joint without significant improvement.
36 In December 2016, Mr Chiu reported the x-ray of the right knee showed a well-positioned total knee replacement.
37 In November 2016, the plaintiff attended Mr Chiu, and reported increased pain in the right elbow. Mr Chiu organised x-rays of the right knee and right elbow and an MRI scan of the right elbow.
38 In March 2016, the plaintiff underwent a total knee replacement. Initially, the surgery was complicated by stiffness and pain which culminated in manipulation under anaesthetic in May 2016. He was referred to a pain management program, where he received physiotherapy, psychological counselling and medication for the knee. The plaintiff returned to work.
39 In July 2020, Mr C-Ong, pain management specialist, said the plaintiff is precluded from doing any alternative duties that require manual reliance on lower limb and upper limb-aggravating tasks due to the nature of his condition.
40 I accept that the plaintiff has a current physical injury to his right upper limb – his dominant arm – which has resulted in surgery, is ongoing, and requires him to take medication.
41 I must now consider the consequences of the plaintiff’s injuries of the right upper limb injury, being the plaintiff’s dominant arm.
Disentanglement – the right knee and the Plaintiff’s comorbidities
42 Counsel for the defendant submitted that the plaintiff was complaining of other medical conditions which impede the plaintiff’s activities of daily living.
43 It was not in dispute that the plaintiff suffered a knee injury at work which ultimately required a knee replacement. The current medical evidence is that the knee replacement is stable. The plaintiff’s evidence is that he continues to have restriction of movement, stiffness and pain in his right leg due to his ankle injury and the surgery to his right knee. The plaintiff manages his pain with medication. The evidence is that the pain medication is for the plaintiff’s right knee pain and the right upper limb injury.
44 The plaintiff’s evidence is that he suffered a heart attack and had a coronary stent inserted. He takes medication for high blood pressure and high cholesterol as a preventative measure. I accept that any cardiovascular condition is not affecting the plaintiff’s right upper limb injury.
45 Counsel for the plaintiff submitted that the right upper limb injury is a simple injury to a single body part arising out of a discrete cause of action. The issue is whether the pain and suffering consequences of the right upper limb injury alone meet the “serious injury” test.
46 The authority of Peak Engineering & Anor v McKenzie[13] requires that where different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all the pain and suffering consequences that are operative at the date of trial. This is necessary in order to determine which of the pain and suffering consequences are attributable to which injury.
[13][2014] VSCA 67
47 At paragraph 25, the Court of Appeal said:
“It is possible to imagine a case where the consequences of the original injury are so clearly separate and distinct from the consequences of this subsequent injury that no disentanglement is necessary. But this was not such a case. As the appellants pointed out, there was evidence indicating that certain of the pain and suffering consequences which His Honour regarded as relevant, were attributable to the injury as well is to a hand injury.”
48 In considering the pain and suffering consequences of the plaintiff’s dominant right upper limb injury, I must consider the above-mentioned authority. I accept that many of the consequences of the right arm/elbow injury are so clearly separate and distinct that no disentangling is necessary, but where there is evidence indicating that certain of the pain and suffering consequences are concurrently attributable to the right upper limb and the right knee injury, disentanglement is necessary.
49 I shall now consider the consequences.
Pain
50 The plaintiff’s evidence is that he continues to suffer pain in his right upper limb at the elbow joint and in the muscles on the underside of his right arm. The pain extends from his right arm down to the back of his hand.
51 The plaintiff reported to Mr Grossbard pain within the right upper limb which he describes as a throbbing ache. It is constant and varies from about 1 to 6 out of 10 in intensity on a visual analogue scale. The plaintiff said the pain increases when he is active, and he feels pain radiating into the muscles of his forearm. The plaintiff said his right arm feels tired, which he described as feeling lethargic. The plaintiff said the symptoms of pain, tiredness and weakness in his right arm increase with the use of his right arm. He said he now finds it difficult to lift heavy items. The plaintiff reported a degree of numbness on the medial side of the elbow.
52 Mr Grossbard said the plaintiff suffered ongoing pain, particularly with activity. Mr Grossbard did not believe any further specific treatment to the right upper limb will be beneficial, however, suggested the use of an elbow strap may help during times of physical stress to the right arm. Mr Grossbard noted that the plaintiff avoids activities involving repeated lifting with his arm. Mr Grossbard believed the plaintiff will suffer ongoing right upper limb pain, particularly with activity, and avoids activities involving repeated lifting with his arm.
53 Dr C-Ong, pain management specialist, said the plaintiff will always suffer pain and limited function to his right upper limb. His prognosis was guarded. He said the plaintiff will likely suffer persistent pain symptoms, pain-related issues and limited capacity for the foreseeable future.
54 Associate Professor Buzzard said that the plaintiff still suffers pain, his condition is stable, and he requires ongoing analgesia.
55 I accept that the pain the plaintiff reports in relation to his dominant upper limb is so clearly separate and distinct from pain in his knee and ankle that no disentangling is necessary. The plaintiff reported to medical witnesses suffering pain in respect of the dominant upper limb and arm which has been variously described by medical witnesses as “constant and varies from 1 to 6 out of 10 in intensity on the visual analogue scale”.[14] The pain increases with activity and he feels the pain radiating into the muscles of his forearm. Dr C‑Ong describes the pain the plaintiff suffers as likely to be persistent for the foreseeable future. I note the pain has been ongoing for nine years.
[14]PCB 44
56 I accept that the level of pain the plaintiff suffers is a consequence which I can take into account, which I assess at the middle of the range.
Treatment
57 In respect of the dominant right upper limb, the plaintiff has undergone three surgeries over nine years and has had a number of injections into his right elbow. He has undergone physiotherapy treatment, on and off, since the date of his injury. He was in receipt of physiotherapy treatment, which has ceased since the onset of the COVID-19 pandemic. The plaintiff’s evidence was that he anticipates resuming physiotherapy treatment when he is able.
58 The plaintiff was referred to a pain management program for the purpose of treating his right knee injury. Dr C-Ong reported that it is normal to treat other injuries the plaintiff may have suffered, causing the plaintiff to have pain and chronic issues. Dr C-Ong was also aware that part of the plaintiff’s whole person treatment in the pain management program also included his right upper limb injury. The medication and physiotherapy exercises would have addressed his right upper limb injury. The plaintiff’s evidence is that he remains under the care of Dr C-Ong.
59 The plaintiff’s evidence is that after he has been working, he uses a hot wheat bag or cold pack to alleviate the pain in his right upper limb at the end of the day. This was confirmed by the plaintiff’s wife. The plaintiff reported the use of heat bags and cold packs to Mr Grossbard.
60 I accept that the daily use of heat bags, cold packs together with injections and surgery on his dominant right upper limb is so clearly separate and distinct from his right knee and ankle that no disentangling is necessary.
61 The plaintiff has undergone treatment in respect to surgeries and other procedures, including injections, which are clearly referable to the right upper limb. The surgeries and procedures to the right upper limb are clearly separate and distinct. I accept that the plaintiff was referred to pain management treatment, initially for his right knee; however, in view of Dr C‑Ong’s report that the medication and physiotherapy would have addressed the plaintiff’s right upper limb injury, I accept this is a consequence which I can take into account. The evidence is that the plaintiff has had physiotherapy treatment on and off since the date of the injury. The current evidence is that the plaintiff was in receipt of physiotherapy treatment which ceased due to the COVID-19 pandemic. I accept this is a consequence which I can take into account, which I assess at the middle to high end of the range.
Medication
62 The plaintiff’s evidence is that he is taking Endep, Baclofen, Imrest and Nexium. He currently takes Nurofen and Panadol four to six times each day. He usually takes Panadol first thing in the morning, some more Panadol at lunchtime and Advil or Nurofen in the evening. He said the medications he takes are also for his knee injury.
63 The plaintiff’s evidence was that the medical witnesses told him that the medication assists both his dominant right upper limb injury and right knee injury. He also uses heat and massage to relieve his symptoms. The plaintiff reported to Mr Grossbard his current medication, that he massages his elbow, uses hot and cold packs on his arm and uses Voltaren Osteo Gel on most nights.
64 The medical evidence is that the medication the plaintiff takes treats the pain the plaintiff suffers in his right upper limb and his knee injury. All medical witnesses accepted that it was appropriate and that it would provide benefit for both the plaintiff’s right knee and right upper limb.
65 I accept the medication the plaintiff reports in respect to his right upper limb injury is clearly separate and distinct from the consequences of the pain he suffers in respect to the right knee injury. Accordingly, no disentanglement of the medication is required from the right knee injury.
66 I accept that the plaintiff requires regular medication for his right upper limb injury. Accordingly, this is a consequence which I can take into account, which I assess at the medium to high end of the scale.
Gardening
67 The plaintiff’s evidence is that he enjoyed working in the garden on weekends; it was a hobby. This was supported by his wife’s evidence. His wife said before the plaintiff was injured people would often comment on their beautiful garden.
68 The plaintiff’s said that he does not enjoy gardening as he did before his injury. He has purchased a lawnmower, which is a self-propelled lawnmower which basically drives itself. The plaintiff said he is restricted in the activities he can perform with his dominant upper limb injury. He cannot cut and trim branches using secateurs because of the pain in his dominant upper limb. The plaintiff’s wife now performs more of the gardening. His wife confirmed that he could no longer hold the electric trimmer because of the vibration.
69 I accept that the activities of gardening, including using implements in his dominant upper limb, are so clearly distinct and separate from his right knee injury that no disentanglement is necessary. I accept that the plaintiff can no longer perform gardening activities which he enjoyed due to the dominant upper limb injury. I accept that gardening was an activity which the plaintiff enjoyed and is a consequence which I can take into account, which I assess at the middle of the range.
Handyman work
70 The plaintiff’s evidence is that he liked doing physical-type work – handyman jobs around the house. This is confirmed by his wife. She described him as being “quite the handyman around the house”. The plaintiff’s evidence was that most of the physical activity he does involves his dominant upper limb. This means he is limited in what he can do because his right upper limb is painful and is weaker, as is his right-hand grip. Further, his dominant upper limb is constantly tired. The plaintiff’s evidence was that the dominant upper limb affects almost everything he does. Whenever he uses his dominant upper limb, he suffers increased pain. It wears him down. The plaintiff reported this to several medical witnesses, including Mr Grossbard, who accepted this as a consequence of his injury.
71 Further, the plaintiff said he is now unable to use power tools because of the vibration which increases the pain in his right upper limb. If he uses any power tools they vibrate and that increases the pain he experiences. Because of the pain levels he must cease these activities. He now struggles to do any handyman work around the house. I accept that this consequence is so clearly separate and distinct from his right knee injury that no disentanglement is required. I accept this is a consequence which I can take into account, which I assess at the medium to high end of the range.
Sleep
72 The plaintiff’s evidence is that by the end of the day his right arm is very tired and sore. He has difficulty sleeping because of the pain in his right elbow. He takes medication – Imrest – to help him sleep. He sleeps in a position where he props his elbow up and places his hand through the bed rest to keep his elbow elevated. Otherwise, he rests his elbow on a pillow. He wakes approximately two to three times during the night because of the pain. The plaintiff’s evidence is supported by the evidence of his wife. She said she is aware that he wakes during the night because of his right arm pain, because he stretches his right arm out on to her pillow. The plaintiff said his knee also causes him to wake at times.
73 Given the plaintiff’s evidence, I accept that his difficulty with sleeping is largely due to his dominant upper limb injury. I accept disturbed sleep is a consequence which I can consider. I accept the plaintiff takes medication to assist with his sleep. I assess this at the middle end of the range.
Sporting activities
74 The plaintiff’s evidence is that he has not been able to return to golf and ten-pin bowling. He misses those activities, particularly golf. His evidence was that he did not believe his ankle or knee injury would have restricted him from playing golf. He now has an artificial knee. It is the plaintiff’s evidence that it is the injury to his dominant upper limb which stops him from playing golf because he cannot swing a golf club. The plaintiff’s evidence was that absent his right upper limb injury, he could still play golf with his knee injury as he could use a buggy to move about the golf course. It is the right upper limb injury which restricts him from playing golf, because he cannot swing a club. He said he might be able to swing a club, but if he did he would be wrecked for the next week.[15]
[15]Transcript 15, Lines 1-4
75 The evidence of Mr Grossbard is that the plaintiff reported no ongoing issues with his ankle. None of the medical reports address ongoing issues with the ankle.
76 I accept that the plaintiff can no longer play golf because of his dominant upper limb injury due to and his inability to swing a golf club. I accept that if he only suffered his right knee injury he could have played golf with the assistance of a buggy. The plaintiff’s evidence is that he played golf on a regular basis with his brother-in-law at Westgate or Laverton. I accept this is a consequence which I can take into account. I assess the plaintiff’s inability to play golf at the medium end of the range.
77 The plaintiff’s evidence was that he enjoyed playing ten-pin bowling, which was a family activity. His evidence was that he can no longer participate in that activity as he cannot throw the ball. I accept that he would have difficulty in bowling the ball. In addition, I consider he would have difficulty in running and positioning his feet to throw the ball. Accordingly, I consider that his knee and ankle injury would have limited this activity. Accordingly, in accordance with Peak Engineering,[16] I am required to disentangle the consequences of the knee injury from the elbow/arm injury. Accordingly, I do not take into account as a consequence, the plaintiff’s inability to participate in ten-pin bowling.
[16]Supra
Dominant limb
78 The plaintiff’s right upper limb injury is to the plaintiff’s dominant limb. I accept that the plaintiff is restricted in the activities he can engage in due to his dominant limb being injured.
Stoicism
79 The plaintiff was described by Mr Grossbard as exhibiting a stoic attitude to his injury and a person who has “learned to control the situation and the activities, he subjects himself to”. The plaintiff continues to work despite his pain. He presented in Court as a man who was committed to working and to getting on with his life, tolerating constant pain and restrictions. I adopt what the Court of Appeal said in Haden Engineering Pty Ltd v McKinnon;[17] namely, that the Court should not penalise a stoic plaintiff by treating their injury as less serious simply because the plaintiff is willing to endure the pain or remain more active than another plaintiff would. Accordingly, I take into account the plaintiff’s stoicism.
[17](supra) at paragraph [13]
Tolerance
80 The plaintiff’s evidence is the pain in his dominant upper limb makes him cranky. The plaintiff’s wife said she knows when he is suffering from pain in his dominant upper limb because he gets cranky, which she says is often and is after he has been working. The plaintiff’s daughter and two-year-old grandson live with the plaintiff and his wife. The plaintiff said he finds it difficult to cope with his grandson because he has a reduced tolerance due to the pain in his dominant upper limb. This was supported by his wife’s evidence. I accept this is a consequence which I can take into account, which I assess at the medium end of the range.
Weakness of the right arm
81 The plaintiff’s evidence is that his dominant upper limb is weaker than it used to be. He has lost strength and finds it difficult to lift heavy items. The plaintiff reported this to the medical witnesses. For this plaintiff, who has always performed physical work, and whose recreational activities involve physical activities, I assess this as a consequence at the high end of the range.
Work
82 The plaintiff’s evidence is that he continues to work, working 40 to 50 hours per week. He said work is his priority. The plaintiff is required to drive an automatic truck, as well as clean the truck after delivery and clean the chutes on the back of the truck. He remains at work despite his right arm symptoms.
83 The plaintiff’s evidence is that he avoids activities at work involving repeated heavy lifting with his arms. He takes Panadol and Nurofen four to six times a day. He usually takes Panadol first thing in the morning, some more Panadol at lunchtime and Advil or Nurofen in the evening. By the end of the day, his right arm is very tired and sore and his sleep is affected.
84 The plaintiff works at Werribee. The work is less onerous than the work he was required to perform at Brooklyn. He said Werribee is known as “the retirement village”. At Werribee, he is not required to do the early starts, which were as early as 3.00am at Brooklyn.
85 I accept that the plaintiff is committed to work. I accept the disabling effect of pain may be demonstrated through the fact that the plaintiff has resumed employment and has done so on the basis that he works at a less demanding site, can no longer engage in heavy lifting and works with the assistance of medication. He is tired and in pain at the end of his work on a daily basis. I rely on the comments made by the Court of Appeal in Hawkins v DHL Express (Aust) Pty Ltd[18] where the Court said the disabling effect of pain may be demonstrated through whether the plaintiff has resumed employment and if so, what limitations there are on the plaintiff’s employment. I accept this is a consequence which I can take into account. I assess this at the mid to high end of the range.
[18][2013] VSCA 26 at paragraph [63]
86 Counsel for the defendant submitted that the following matters should be considered:
(a) The plaintiff failed to refer to his ability to travel in his affidavit. This is a major omission which is relevant in determining what the plaintiff retained;
(b) The current medical evidence of both the plaintiff and the defendant suggest improvement which would mitigate being a more than significant consequence of injury;
(c) There has been no exchange of medical material from the plaintiff’s treating doctor, Dr Raj, and the plaintiff’s treating physiotherapist. As a result, the defendant submitted that I can draw an inference in accordance with the principles enunciated in Jones v Dunkel[19] as to the failure to rely on any such reports;
(d) The plaintiff relies on an affidavit of his wife which does not delineate what pain the plaintiff suffered and whether it relates to the knee or elbow injury.
[19](1959) 101 CLR 298
87 First, the plaintiff did not refer to the fact that the has retained the capacity to travel. The plaintiff’s evidence was that he and his wife travelled every two or so years. Generally, they flew to Singapore and boarded a cruise ship and travelled by ship, visiting ports in Asia. He said he did not know that he had to disclose this activity.
88 The plaintiff’s failure to disclose this activity does not affect his credit. I accept that his ability to fly to a destination in Asia then undertake a cruise is a capacity the plaintiff has retained; however, I note that he performed this activity every two or so years. His retained capacity is at the low end of the scale.
89 Secondly, the medical evidence suggests that there has been improvement in the plaintiff’s medical condition. I am required to consider the plaintiff’s pain and suffering consequences as at the date of trial. In considering the consequences, I have considered them as at that date.
90 Thirdly, counsel for the defendant submitted that the plaintiff has not exchanged medical reports from his general practitioner or his treating physiotherapist.
91 The plaintiff’s evidence is that currently he is being treated by Dr C-Ong, pain management specialist, in relation to his dominant upper limb injury. He attends his general practitioner for the purposes of his medication. His medical records were before the Court. I consider there is no issue to this submission.
92 Finally, the affidavit of the plaintiff’s wife does not delineate what pain the plaintiff suffers and whether it relates to the knee or dominant upper limb injury.
93 The plaintiff’s wife’s affidavit refers to the pain her husband suffers in his dominant upper limb injury based on her observations of the plaintiff as he places cold packs or hot wheat bags on his right arm. She refers to what she observes her husband does at night to relieve the pain in his dominant upper limb injury. She explains how she knows her husband is woken by pain in his dominant upper limb injury by what she observes. She explains in her affidavit that he cannot hold the electric trimmer because of the vibration and that she trims the plants because of the plaintiff’s dominant upper limb injury. She reports that the plaintiff has told her he is frustrated because of the pain in his dominant upper limb injury and cannot perform the activities he would like to do in the garden and playing golf. I consider the wife’s affidavit does delineate the consequences from her observations. I do not consider there is any issue in this submission.
Conclusion
94 I am satisfied that the plaintiff was involved in a work accident which, to this plaintiff, resulted in him experiencing symptoms of a physical nature. The consequences of his dominant upper limb injury alone have impacted upon his life as he knew it before the work accident. He has suffered for nine years, and the medical evidence is that the injury is permanent.
95 The medical witnesses accepted that the plaintiff would suffer consequences. The plaintiff has suffered the above consequences since 2011. There is no suggestion that his condition will improve. In fact, a number of the medical witnesses suggested his prognosis was guarded.
96 For the foregoing reasons, I am satisfied that the plaintiff has established that the consequences to him of his impairment can be reasonably described as being “serious”. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful. In considering the consequences, I have not treated each consequence as equal, but, rather, attributed appropriate weight to each consequence in light of the evidence.
97 I accept that the dominant upper limb injury has consequences to the plaintiff that, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of hearing, as being “at least very considerable” and certainly “more than significant or marked”.[20] In making this assessment, I have looked at the consequences of the dominant upper limb injury alone.
[20]Humphries & Anor v Poljak [1992] 2 VR 129
98 Accordingly, I grant leave to the plaintiff to issue proceedings at common law to recover pain and suffering damages with respect to the dominant upper limb injury.
99 I will hear the parties on costs.
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