Martin, Norman v Mountakis Freshway Pty Ltd and VWA
[2009] VCC 1763
•15 December 2009
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION
SERIOUS INJURY
Case No. CI-09-01973
| NORMAN MARTIN | Plaintiff |
| v | |
| MOUNTAKIS FRESHWAY PTY LTD | First-named Defendant |
| and | |
| THE VICTORIAN WORKCOVER AUTHORITY | Second-named Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 December 2009 |
| DATE OF JUDGMENT: | 15 December 2009 |
| CASE MAY BE CITED AS: | Martin, Norman v Mountakis Freshway Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1763 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the left wrist – pain and suffering only – whether consequences to the plaintiff are serious.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell SC with | Vincent Verduci & Associates |
| Mr M Walsh | ||
| For the Defendants | Mr J Batten | Minter Ellison |
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant on 20 February 2007 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The impairment of body function relied upon in this case is the left wrist.
5 The plaintiff relied upon two affidavits and he was cross-examined. The plaintiff’s sister, Pamela Mary Martin, swore an affidavit on 17 November 2009. In addition, both parties relied on medical reports and other medical material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
6 The plaintiff is aged fifty six, having been born on 11 January 1953. He presently lives with his sister in Cranbourne where they care for their mother.
7 The plaintiff was educated to Year 9 and thereafter worked on his family’s market garden at Monbulk until the age of twenty. For the next five to six years he worked at the family fruit shop at Mont Albert.
8 The plaintiff then worked at several jobs as a labourer for a number of years until 1990, when he commenced work at the Footscray Wholesale Fruit Market as a storeman/forklift driver. The plaintiff commenced employment with the first defendant in February 2006. His duties included sales, store worker and truck driver. At that time the plaintiff was the holder of a heavy rigid truck licence.
9 Prior to the said date, the plaintiff’s health was good but he suffered from diabetes for which he took medication.
10 On the said date at about 3.30 am, the plaintiff was working alone on the tray of a truck, moving heavy timber fruit bins weighing about seventy kilograms from one side of the truck to the other so he could unload them with the forklift.
11 When he went to pull a third bin, the timber board from which he was pulling gave way causing him to lose balance, spin around, and fall to the ground face first (“the incident”).
12 The plaintiff realised straight away that he had broken his left wrist. He telephoned for an ambulance and was taken to The Royal Melbourne Hospital (“the Hospital”) where x-rays were taken and he was admitted for three days.
13 Surgery was performed and a plate was inserted into the plaintiff’s left arm and it was placed in a Hoffman frame for six weeks. After that time the frame was removed and his arm was placed in plaster for a month.
14 About three months after the incident as the plaintiff wanted to return to work he spoke to “Matthew”, who advised WorkStream that there was no suitable work for the plaintiff to do.
15 In about August/September 2007, the plaintiff was able to obtain suitable employment with Market City Fruit at the Footscray Market as a forklift driver and worked there until August 2008 when he finished what was only a temporary job.
16 The plaintiff then commenced forklift driving unloading with Robinsons also at the Footscray Market working permanent night shift.
17 The job at Robinsons involves buying at the Footscray Market and supplying to a customer in Tasmania, as well as supplying the Spirit of Tasmania with fruit and vegetables.
18 The plaintiff is able to do this work because he works as a forklift driver and he is able to use his right hand for the vast majority of time to drive the forklift. He only has to use his left hand on the steering wheel when unloading trucks and driving the forklift in a forward direction when he uses his right to operate the controls.
19 The plaintiff likes his job and works five days a week. There is currently no aspect of his present job that he cannot do because of his injury.
20 The plaintiff last drove a heavy rigid vehicle on the date of his injury. It would now be very difficult for him to do so because of the constant gear changing required and he is not experienced in driving trucks that big. He would not be able to do manual labour involving stacking and lifting day in day out.
21 As a result of his injuries, the plaintiff has pain and restriction of movement to the whole of his left arm, wrist and hand which becomes worse after working all day. His fingers get very tight and sore because of the position that they are in all day at work.
22 The plaintiff is unable to lift or move heavy objects. His left hand is numb and there is an uncomfortable sensation in his left hand, fingers and thumb all the time. He uses his right hand to do most of the lifting involved at work and he uses his left hand to counterbalance anything he is required to lift.
23 The plaintiff’s wrist is constantly numb and painful. His left grip strength is greatly reduced. He also suffers a constant dull ache in the forearm.
24 The plaintiff has scarring from the surgery and also from where the Hoffman external fixation device was fitted. He has three scars on the top of his left hand and one underneath. The area of his arm where the device was fitted is now very tender and sore and becomes extremely painful if knocked.
25 Similarly, if he knocks the side of his wrist he suffers an excruciating shooting pain into the left thumb which lasts for a few seconds.
26 The plaintiff believes that arthritis has already set into his wrist joint.
27 The whole area around the base of his left thumb and index finger are numb in comparison to other parts of his body. These problems are much worse in the cold weather and the plaintiff wears gloves to keep his hand warm to ease the pain.
28 The plaintiff also has trouble sleeping on his left side and sometimes wakes with excruciating pain when he rolls onto his arm.
29 The situation with his wrist has not really changed in the last year.
30 The plaintiff used to enjoy fishing but now has trouble holding the fishing rod in his left hand, the hand he has always used, and he has had to learn to use his right hand. He has also set up an electric anchor winch on his boat but if it failed then he would not have the strength to pull the anchor up. Since the incident the plaintiff has installed an easy launch system on the boat making getting the boat on and off the trailer an easier process.
31 The plaintiff, because of the lack of strength in his left hand, would have difficulty reeling in a large fish.
32 The plaintiff has not been fishing in the last twelve months because of his left arm condition. Had he not had this problem he would have been going fishing on Saturday mornings every two weeks or so.
33 The plaintiff purchased his boat which is a 4.9 metre aluminium boat in February 2006. He has a current boating and fishing licence. He agreed that he may have said he was contemplating selling the boat to pay his debts early in 2007 but he still owned it.
34 In cross-examination the plaintiff agreed that earlier this year he helped his sister move home. He moved a few card board boxes mainly using a hand trolley.
35 In cross-examination the plaintiff agreed that he washed his car in public car washes. To do so he used a spray nozzle and a brush. To spray he used his right hand. When he used the brush he cleaned with one hand and supported the brush with the other. He admitted he could use a brush without any restriction at all.
36 The plaintiff was shown fourteen minutes of video taken on 20 September 2009 at the car wash during which time he used the brush for six minutes after having hosed the car for four minutes. Having washed the car with the brush he then hosed it down for a further four minutes.
37 The plaintiff mostly used his right arm whilst hosing the car. Whilst he was shown using both arms when using the brush he explained that the right hand was the more vigorous of the two and put a bit more pressure on the brush. He agreed as Mr Polke had found on examination three days earlier that he had a full range of movement of his wrist performing this particular activity. He explained that his wrist is painful when it is bent backwards
38 In re examination the plaintiff said that he goes quite regularly to the car wash- probably two to three times a month and he agreed what he was shown doing on video was fairly typical of his activities when there and that he uses his left wrist mainly for support.
39 In cross-examination, the plaintiff agreed he was seen lifting a trampoline which he descried as light onto the back of a truck with the assistance of his sister, carrying it just with his right hand.
40 The plaintiff’s medical treatment is limited because pain relieving medications do not seem to provide any relief. He takes two Panamax a day which he purchases in bulk. He also takes preventative medication for a thyroid problem and he takes blood pressure, cholesterol and diabetes medication.
41 In recent times, the plaintiff has recommenced physiotherapy but that treatment also does not provide lasting relief. He has worn the same Velcro wrist brace for about a year having previously worn a more substantial one.
42 The plaintiff last attended the Royal Melbourne Hospital for review in late 2008.
43 The fact of further surgery has been discussed with the plaintiff by medico- legal orthopaedic surgeons but he is not prepared to undertake surgery without any guarantee being given as to its success. He has been told the surgery could be experimental to fix the nerve damage inside the wrist and he would not want to do it – it would be a last resort. If he was suffering excruciating pain on a regular basis he would consider this surgery.
44 He would rather put up with the pain at the moment instead of going through another operation if there was no guarantee it would fix his problem.
Lay Evidence
45 The plaintiff’s sister, Pamela Martin, swore an affidavit on 17 November 2009.
46 On the said date, Ms Martin was living nearby and used to see the plaintiff on average once a fortnight.
47 Prior to the incident, the plaintiff enjoyed reasonably good health, could attend work regularly and most of all used to love fishing, as well as attending to his own domestic requirements.
48 Following the plaintiff’s discharge from hospital, she moved in to live with him to care for him, as he was not able to function properly because his left arm had been placed in a metal frame and he did not have the use of his left arm and hand.
49 She continued to live with the plaintiff until the middle of 2008 and helped him with household duties while she stayed there.
50 During that time, the plaintiff often complained of pain and limitation of movement of his left arm and wrist and she often heard him moaning of pain and he complained he was not able to sleep properly.
51 On several occasions she noticed the plaintiff asleep on the recliner chair as it was more comfortable for him, especially when he had the metal frame on his arm.
52 After the frame was removed she assisted him to go to physiotherapy as he was unable to drive. She helped him carry out exercises to his fingers and hand and massaged them to help him achieve improvement.
53 As far as she is aware, the plaintiff has not returned to fishing and he often complains he misses that activity. He owns a little boat which he owned prior to the injury and he used to go out fishing on his own prior to the accident and now he is not able to.
54 Prior to the incident, the plaintiff was able to cope well with all domestic duties and he was cheerful and friendly to people and had a happy outlook to life.
55 As a result of his injury, the plaintiff is now unhappy and has not been able to attend to all matters around the house and do the things he was able to prior to the injury, especially fishing. He often complains of pain to his left arm and wrist and reduction of movement and interference with his domestic activities and his ability to work.
The Plaintiff’s Medical Evidence
56 The plaintiff was taken by ambulance to the Emergency Department at the Hospital on the said date.
57 At that time his documented past history included Type 2 diabetes mellitus, hypothyroidism, obesity and a penicillin allergy.
58 A CT scan of the plaintiff’s left wrist showed a grossly comminuted fracture of the distal radius extending into the articular surface. There was a gap measuring eight millimetres centrally within the joint. Multiple small bony fragments were present within the joint. There was impaction and dorsal angulation. The ulnar styloid was fractured but relatively undisplaced. The longitudinal component of the fracture extended along the length of the radius though the proximal extent of the fracture had not been covered on the films.
59 An x-ray of the left elbow showed the elbow was enlocated.
60 An x-ray of the left forearm showed a comminuted intra-articular fracture involving the distal radius. The distal fragment was dorsally angulated for approximately fifty degrees.
61 The fracture was initially reduced in the Emergency Department and the plaintiff was then admitted to the Orthopaedic Surgery Unit. The plaintiff underwent an open reduction internal fixation of the left wrist and left radial nerve neurolysis, left radius bone graft, left wrist lavage, debridement of the left ulnar wound and external fixation for left wrist stabilisation by the Orthopaedic Surgery Unit on 20 February 2007.
62 The plaintiff was discharged on 23 February 2007 and attended Outpatients on 6 March, 17 and 30 April, 8 May, 5 June, 7 August 2007 and 12 November 2008.
63 It was noted the plaintiff made a good recovery and demonstrated a normal range of movement over the affected area by five and a half months following the above stated accident and follow-up imaging was said to be satisfactory. He was discharged from the clinic following review on 12 November 2008.
64 Dr Pavasaris, general practitioner from the Duff Street Medical Clinic in Cranbourne (“the Clinic”), is the plaintiff’s general practitioner. The plaintiff has attended the Clinic since 24 February 2007. The plaintiff was seen for seven visits between that date and 11 July 2007 for his left forearm injury.
65 The next consultation was on 19 September 2008 when the plaintiff complained of tightness and pain over his left thumb, and numbness on the lateral side was also noted.
66 The plaintiff was then referred to the Hospital Orthopaedic Clinic.
67 Dr Pavasaris saw the plaintiff on 18 July 2009, at which time he complained of pain and weakness around his left thumb and Dr Pavasaris referred him to a physiotherapist, Mr Abbas.
68 On review on 17 October 2009 following physiotherapy, the plaintiff’s main ongoing problem was that of paraesthesia, numbness and pain over the lateral side of his left wrist and extending to the whole of the thumb. He also experienced pain in his wrist on lifting and other strenuous activities which could extend up to his forearm.
69 On examination, the plaintiff had heightened sensitivity to pain, and hand grip was slightly reduced to about seventy five per cent and end range flexion and extension were slightly reduced by pain.
70 Dr Pavasaris thought the plaintiff’s injury appeared to have stabilised and that the plaintiff might develop accelerated degenerative changes in his left wrist joint due to a residual gap involving the distal radial articular surface. In his view, such changes would cause increased pain and stiffness.
71 Dr Pavasaris noted the plaintiff appeared to be coping satisfactorily at work but it appeared his ability to pursue his fishing interests was curtailed because he could not hold a rod in his left hand.
72 Mr Peter Battlay, orthopaedic surgeon, examined the plaintiff on behalf of Gallagher Bassett Services Workers Compensation on 25 November 2008.
73 On examination, Mr Battlay noted the plaintiff’s surgical scarring. He measured grip strength at 48 kilograms for the right hand and 22 kilograms for the left on three separate occasions.
74 Mr Battlay noted there was good movement at the wrist but the plaintiff did have a significant loss of strength through the fracture and he accepted that nearly two years post-operatively that would be a source of permanent impairment to the plaintiff.
75 Mr Battlay concluded that the plaintiff had a healed radial fracture and an ununited fracture of the ulnar styloid process of the non-dominant left wrist.
76 Mr Khan, orthopaedic surgeon, examined the plaintiff on 3 February 2009.
77 At that time the plaintiff noted his left grip was weak and he also still had the metalware in his left arm. When he lay on his left side putting pressure on his left hand he developed pain in the radial aspect of the left wrist. He was getting intermittent bubble-like swelling in front of the lower part of the left wrist and along the left forearm at the operation site. He had hyperaesthesia along the dorsal radial aspect of the right thumb and wrist over the distribution of a branch of the radial nerve.
78 The plaintiff told of a feeling of tightness and pain around his left thumb when driving a forklift and a dull aching type of pain in the left wrist.
79 On examination, the plaintiff could make a fist with his left hand but his grip was weak. He had the operation scars on his left forearm on the radial aspect: a scar on the dorsal aspect of the wrist and on the dorsal radial aspect of the right hand. There was a long volar scar in the mid-line of his forearm down to the wrist which was 16 metres in length. There were healed pin scars in the radial aspect of the forearm where an external fixator had been placed.
80 The plaintiff complained of itchiness and tenderness over the operation scars.
81 Using a dynamometer, the grip of the plaintiff’s right hand measured 44 kilograms compared to 34 on the left. He could move his left elbow well and there was no pain on rotation of the forearm, namely, supination and pronation.
82 Mr Khan thought the fracture had now united and that the plaintiff was left with residual aches and stiffness in the left wrist associated with mild numbness along the radial aspect of the left thumb indicating involvement of a branch of the radial nerve along the radial aspect of the thumb.
83 It was recommended he should have the plate and screws removed by a surgeon, which Mr Khan noted would possibly improve his symptoms.
84 Mr Khan thought the plaintiff’s long-term prognosis was guarded as he was likely to get degenerative arthritis in the left wrist as a direct result of the injuries as the fracture had been comminuted and in spite of recently good treatment, there was likely to be some residual damage to the articular lining of the wrist joint. As the plaintiff still complained of pain in relation to the left wrist, Mr Khan recommended that the metal inside the left radius should be removed surgically. He noted that the plaintiff may require an arthroscopy of the left wrist to assess the extent of residual damage to the articular surface.
85 Mr Khan considered the plaintiff’s working ability had been diminished as he was a manual labourer by profession and the injury had compromised heavy physical-type of labouring duties with the use of the left hand and wrist.
86 Mr Khan re-examined the plaintiff on 16 November 2009.
87 On examination on that date, the grip of his left hand, measured with the dynamometer, was 18 kilograms compared to 45 on the right. The plaintiff had a full range of movement of the left elbow and there was some restriction of wrist movement with dorsiflexion to 60 degrees, palmar flexion to 50 degrees, radial deviation to 20 degrees and ulnar deviation to 30 degrees.
88 Mr Khan confirmed his earlier opinion remained essentially unchanged. He confirmed the long-term prognosis was guarded as to the condition of secondary degenerative arthritis and that the plaintiff may require further surgery to his wrist in five years or so, which would be arthrodesis. He confirmed the plaintiff’s capacity as to full-time light duties.
89 Dr Thomas, consultant in rehabilitation pain medicine, examined the plaintiff for medico-legal purposes on 12 November 2009, having been provided with Mr Khan’s March 2009 report.
90 On examination, Dr Thomas noted the plaintiff had a full range of movement of his wrist. He had some numbness on the base of his left thumb and over the scar region and he had brush allodynia and hyperalgesia in the small area around the scar.
91 On examination, the plaintiff reported pain in the left hand and numbness in the index finger and thumb and pain over the thenar eminence. He reported if he knocked the area there would be severe pain around it which would last for a few minutes. He reported the sensation and numbness was very problematic and that this felt like a pins and needles feeling.
92 Dr Thomas concluded there were two components to the plaintiff’s pain. There was one clearly due to neuropathic pain. That accounted for the constant paraesthesia and the severe pain when he knocked the affected area.
93 The other component was due to the derangement of the left wrist and the fact that this left wrist is of increased risk of developing post traumatic degenerative problems. That accounted for the plaintiff’s difficulty in lifting any objects and the pain when he does.
94 Dr Thomas considered the primary problem with the plaintiff’s work as a forklift driver is lifting heavy objects with his upper limb. He has difficulty because of the pain from the neuropathic component and from the wrist joint itself, which was likely to develop some post traumatic degenerative problems given the degree of comminution of the original fracture.
95 Dr Thomas said that if the plaintiff was not in this job and had a job involving lifting through the affected extremity that would be considerably more problematic for him.
96 Although Dr Thomas thought theoretically a fusion may alleviate some of his problems, however, given that the plaintiff also has neuropathic pain and problems with that, it was, in his view, unlikely that this would solve the totality of the situation to any extent.
Video Surveillance
97 A little over twenty minutes of video surveillance was taken of the plaintiff’s activities over a number of days between 17 and 30 September 2009.
98 On 19 September 2009 there was a long distance shot of the plaintiff helping his sister lift a trampoline on the back of a truck.
99 On 30 September the plaintiff spent about fourteen minutes cleaning his car at a manual car wash. During that time he hosed the car on two occasions, holding the hose with his right hand and resting it on his left. For six minutes of this period he used both hands in applying a brush with soap to the exterior of the car.
100 As the plaintiff explained during this six minutes whilst he used his left hand to clean the car with a brush he put pressure on the brush most of the time with his right hand.
The Defendant’s Medical Evidence
101 The plaintiff was examined on two occasions by Mr Polke, orthopaedic surgeon, on 31 March 2009 and more recently on 17 September 2009.
102 On initial examination, the plaintiff’s right grip strength was to seventy five kilograms whilst his left was to twenty kilograms. His hands were well keratinised with callosities. Mr Polke noted a fifteen centimetre surgical scar on the distal anterior forearm.
103 Mr Polke felt there was no obvious left wrist deformity macroscopically and the range of movements was full. Altered sensation was confirmed over the medial aspect of the plaintiff’s left hand.
104 Mr Polke thought the plaintiff’s condition appeared to have stabilised at the present level. He considered the plaintiff had also suffered damage to the distal sensory part of the left radial nerve.
105 In Mr Polke’s view, the plaintiff had a capacity for his current duties although his grip strength is much reduced, partly because of the residual pain associated with his left wrist injury but also related to a chest operation when he was an infant.
106 Mr Polke considered the plaintiff appeared to have the capacity for work and fitness to undertake his pre-injury duties. He thought there were no particular medical constraints at the present time, although the removal of the internal fixation may help to reduce the plaintiff’s pain.
107 Mr Polke considered the plaintiff had a greater chance of developing osteoarthritis of his left wrist due to the comminution of the fracture involving the articular surface of the lower radius and remaining articular defect.
108 Mr Polke thought it possible that further improvement may take place in the next couple of years, particularly as far as the recovery of the sensory changes over the medial aspect of the plaintiff’s left hand, although that would need to be assessed in about one to two years time.
109 On re-examination, no changes were noted in relation to the left wrist. The plaintiff continued to demonstrate a full range of movements which were not particularly painful except at limit. He was tender over the radial side of his wrist and exhibited sensory loss along the radial nerve distribution. His hands had no callosities.
110 Mr Polke noted that nerve conduction studies conducted by Dr Robinson on 23 September 2008 were normal. There had been a CT scan of the left wrist on 9 May 2007 which showed at least one screw traversing the distal articular surface and that the fractures were uniting. An x-ray of 19 September 2008 showed a gap over the distal radial articular surface. The fractures had united except the avulsion of the ulnar styloid.
111 The plaintiff told Mr Polke he does very little manual work in his current job as a forklift driver. He still has some pain in his left wrist particularly when it is knocked and he is receiving no current medical treatment.
112 Mr Polke considered the plaintiff would have difficulty in performing manual tasks such as lifting of heavy fruit and vegetables cases. The medical constraints were avoiding overactivity of the left wrist, such as heavy lifting or jarring the left wrist in jobs such as hammering.
113 Mr Polke considered there was likely to be deterioration when the arthritic changes became more advanced producing more pain. He noted the fractures had united and therefore stabilised but degenerative changes were likely to progress. He noted there was a defect in the radial articular surface and there was damage of the terminal radial nerve accounting for sensory loss over the radial side of the plaintiff’s hand.
114 In terms of further treatment, Mr Polke thought it may be an option to remove the plate and undertake neurolysis or repair of the distal radial nerve in the hope of promoting some recovery of sensory function of the distal radial nerve. He thought that removal of the screws that traversed distal articular radial surface could promote some pain relief and delay the onset of degenerative changes.
115 Mr Polke noted, in the longer term, should the plaintiff’s pain become a major disability, a wrist arthrodesis or arthroplasty would need to be considered.
116 Mr Polke considered the effects of the work-related injury were likely to continue for the foreseeable future.
117 The fractures had united, however, there was still pain relating to the irregularity of the wrist joint articular surface, protruding screws from the articular surface, and the residual symptoms due to radial nerve compromise were likely to persist into the future.
Findings
118 There is no dispute that the plaintiff suffered a compensable injury to his left wrist on the said date, namely, a grossly comminuted intra-articular fracture of the distal radius of the left forearm.
119 The issue, therefore, is whether the plaintiff’s impairment from the incident is serious; namely, whether the consequences to the plaintiff of his left wrist injury when judged by comparison with other cases in the range of possible impairments or losses of body function may be fairly described as being more than “significant” or “marked” and at least as being “very considerable” – s.134AB(38)(c).
120 The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against other possible impairments not necessarily in the same category: see Humphries v Poljak (1992) 2 VR 129, at 170, accepted by the Court of Appeal in Barlow v Hollis (2000) VSCA: see in particular Chernov JA at para 29.
121 The impairment must be permanent, in the sense that it is likely to last into the foreseeable future.
122 As counsel for the defendant rightly conceded the plaintiff was a refreshingly frank, forthright and honest witness.
123 I am satisfied that since the incident the plaintiff has suffered left forearm, wrist and hand pain affecting his fingers. There are two components to his problem- nerve damage and some mechanical functional pain. The plaintiff has suffered a significant loss of grip strength in his left hand as recorded by Mr Khan and Mr Battlay. The surgical scarring is extensive and the areas around it are tender and very painful when knocked.
124 Mr Khan, Dr Thomas and Mr Polke agreed the plaintiff was likely to have developed some post traumatic degenerative problems given the degree of comminution of the original fracture. There was likely to be deterioration when these arthritic changes become more advanced. There is the possibility of fusion surgery as noted by Mr. Khan and Dr Thomas but as the plaintiff’s pain is neuropathic, such surgery may not fully resolve his problem.
125 Further Mr Polke and Mr Khan has suggested surgery to remove the screw that actually goes into the articular surface of the joint to try to alleviate some of the plaintiff’s pain.
126 Following the original surgery, conservative treatment has been of little lasting benefit to the plaintiff. However, he still requires painkilling medication which he takes daily and he has recently recommenced physiotherapy treatment. Further he has worn a brace for support since the incident.
127 Counsel for the defendants relied upon the fact the plaintiff was presently working fulltime as the basis for submitting the plaintiff’s impairment was not serious.
128 As Chernov JA observed in Sumbul v Melbourne All Toyota Wreckers Pty Ltd [2006] VSCA 292, it would ordinarily be difficult to conclude that the pain and suffering consequences were serious in circumstances where it is accepted that a plaintiff is physically capable of alternative employment unless there was some other evidence that showed he experienced significant pain or he otherwise suffered significantly from the injury.
129 However, each case must be looked at on its facts and the observations of Chernov JA in Sumbul should not be treated as a general proposition that the ability to engage in full time work precludes a finding of serious injury.
130 Whilst he is able to work full-time as a forklift driver, the plaintiff would have difficulty returning to his pre-injury work as a truck driver because of the requirement to change gears. He would also have problems with any heavy manual work requiring lifting – a view shared by Mr Polke, Mr Khan and Dr Thomas.
131 Whilst he is right hand dominant, in his present job the plaintiff still is required to use his left hand when unloading goods and driving the forklift forwards. Whilst that does not cause him particular problems during the day, at the end of the day his hand and fingers are sore.
132 The plaintiff’s main recreational activity of fishing has been affected by his left wrist injury. He has had to modify the launching mechanism for his boat as he can no longer launch the boat alone and he has problems holding the rod. Because of these problems he has not gone fishing for the last year. Had he not been injured he would have been able to go fishing every second Saturday, fitting in with his work commitments.
133 Counsel for the defendant relied upon the recent Court of Appeal decisions in Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 and Sabo v George Weston Foods [2009] VSCA 242, at para 74. In both cases the plaintiff’s appeal was dismissed.
134 As the Court of Appeal stated in both cases, a determination of serious injury involves a value judgment in which matters of fact, degree and degree and of impression are operative: see also Dwyer v Calco Timbers Pty Ltd [2006] VSCA 187, at 41
135 Counsel for the plaintiff relied upon the decision in Jarvis v Stone, one of the cases dealt with by the Court of Appeal in Humphries and Poljak [1992] 2 VR 129, where the Court found a serious impairment of the right knee where the plaintiff was working full time and had degenerative changes consequent upon a knee fracture which might require further surgical treatment.
136 Taking into account all of the evidence in this case, I am satisfied that the impairment to the plaintiff’s left wrist satisfies the definition of “serious injury” pursuant to s.134AB.
137 Accordingly, I grant the plaintiff’s application to bring proceedings for damages and suffering.
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