McGiffin v Fosterville Gold Mine

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
CIVIL CIRCUIT LIST

S ECI 2020 04100

PATRICK McGIFFIN	Plaintiff
v
FOSTERVILLE GOLD MINE PTY LTD	Defendant

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2021 – 14 December 2021
DATE OF JUDGMENT:	4 November 2022
CASE MAY BE CITED AS:	McGiffin v Fosterville Gold Mine
MEDIUM NEUTRAL CITATION:	[2022] VSC 665

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PERSONAL INJURIES – Workplace accident where defendant employer plaintiff admitted negligence and claimed contributory negligence – Assessment of damages arising from injury – Injuries including complex regional pain syndrome and an adjustment disorder with mixed anxiety and depressive features – Not established plaintiff guilty of contributory negligence – No occasion for apportionment for contributory negligence – Damages awarded including non-economic loss and economic loss – Graham v Baker (1961) 106 CLR 340; Todorovic v Waller (1981) 150 CLR 402; Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; Amaca v King (2011) 35 VR 280; Willett v State of Victoria (2013) 42 VR 571; Lonergan v Trustees of The Sisters of Saint Joseph [2022] VSCA 208.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Mighell SC	Arnold Dallas McPherson
Mr M Fogarty
For the Defendant	Mr A Moulds QC	Hall & Wilcox
Mr S Martin

TABLE OF CONTENTS

Introduction and summary.............................................................................................................. 1

Background......................................................................................................................................... 2

The Incident........................................................................................................................................ 3

Contributory negligence................................................................................................................... 4

Complex regional pain syndrome in outline................................................................................ 9

................. It will be necessary to more closely examine these criteria later in these reasons.10

Physical injury.................................................................................................................................. 10

Mr McGiffin’s evidence.............................................................................................................. 10
Medical reports and course of treatment................................................................................. 13
Expert witness evidence............................................................................................................. 18
Dr Robert Gassin.................................................................................................. 19
Dr Peter Blombery................................................................................................ 23
Dr Joseph Slesenger............................................................................................. 26
Dr David Vivian................................................................................................... 30

Consideration.............................................................................................................................. 38
Mr McGiffin - credibility..................................................................................... 38
Discussion and findings...................................................................................... 39

Psychiatric injury............................................................................................................................. 47

Dr Justin Lewis............................................................................................................................ 48
Associate Professor George Mendelson.................................................................................. 49
Consideration.............................................................................................................................. 50

General damages.............................................................................................................................. 52

Economic loss.................................................................................................................................... 55

Legal principles........................................................................................................................... 55
Mr McGiffin’s work history and commencement at Fosterville.......................................... 56

Capacity to work......................................................................................................................... 58
Past economic loss....................................................................................................................... 61
Future economic loss.................................................................................................................. 64
Submissions........................................................................................................... 64
Consideration........................................................................................................ 66

Conclusion......................................................................................................................................... 71

HIS HONOUR:

Introduction and summary

Patrick McGiffin worked as a ‘nipper’ at the Fosterville Gold Mine near Bendigo for about three months from December 2017. Near the end of his shift on 2 March 2018, he was struck to the head and right shoulder by a large rotating bolt attached to a boom on a machine known as a ‘jumbo’ being operated by a co-worker, Mark Sole. He was taken to the Bendigo Hospital with pain to the right side of his head and right shoulder. Mr McGiffin retuned to work about a week later, after being treated by his general practitioner and a physiotherapist. He then undertook alternative duties until 29 May 2018 when he ceased work; he has not subsequently returned to work.

Mr McGiffin has claimed damages for negligence against Fosterville Gold Mine Pty Ltd (Fosterville), his and Mr Sole’s employer and the occupier of the mine where the incident occurred.

At the commencement of the trial of the proceeding, senior counsel for Fosterville informed the Court that Fosterville admitted that the incident was caused by its negligence. The issues for determination at trial were accordingly confined to:

(a) an assessment of the damages to compensate Mr McGiffin for the losses he has suffered as a consequence of the admitted negligence;

(b) whether there was any contributory negligence on Mr McGiffin’s part and, if there was;

(c) by what percentage his award of damages should be reduced.

The major controversy at trial relevant to the assessment of damages was the nature and extent of the injuries sustained by Mr McGiffin as a result of the incident. Mr McGiffin’s case was that he has suffered, and continues to suffer, from a condition known as ‘complex regional pain syndrome type 1’ (CRPS type 1). Complex regional pain syndrome is a syndrome which is characterised by continuing regional pain that is seemingly disproportionate in time or degree to the usual cause of any known trauma.[1] In addition to CRPS type 1, Mr McGiffin also alleged that, as a result of the incident, he suffers from an adjustment disorder with depression and anxiety. Fosterville’s case was that Mr McGiffin had not proved on the balance of probabilities that he has suffered from CRPS type 1 and that he does not have any recognisable mental illness.
[1]See further at [22] below.

Background

Mr McGiffin was born on 27 March 1992 and was 25 years of age when the incident occurred on 2 March 2018. At that time and at trial, he lived with his fiancée, Heidi Tresize, with whom he has a son who was about 20 months of age at the time of trial, and a stepson, who was then 15 years of age. Ms Tresize was pregnant at the time of trial. Both Mr McGiffin and Ms Tresize gave evidence at trial.

Mr McGiffin commenced employment with Fosterville as a nipper in December 2017. I deal with his employment history and how he came to work at Fosterville later in these reasons.[2] At Fosterville, Mr McGiffin worked underground on a roster of twelve-hour shifts, with seven days on and then seven days off. As a nipper, he worked as a labourer in assisting the operator of a ‘jumbo’, a large machine with two booms or arms at the front which are capable of being rotated in various directions. Each boom can be fitted with steel drills or bolts, in order to either drill holes in the wall or the roof of the mine, or to drive bolts into those holes. Throughout the course of an average twelve-hour shift, the jumbo would be operated to drive several hundred bolts into holes in the wall of the mine.
[2]See [195]-[202] below.

Each nipper was generally assigned to work with one jumbo operator. Mr Sole was the jumbo operator with whom Mr McGiffin was working on the day of the incident. They had worked together for the previous two months, mainly undertaking rehabilitation and reinforcement work which involved fixing wire mesh around the walls and surface of the underground mine. The mesh was secured by large bolts drilled into the earth. This was done using the two booms at the end of the jumbo: one boom had a drill bit attached to it for drilling the holes into the mine wall, the other held the bolts which were then driven into the holes in the wall. These booms were operated by Mr Sole from a standing position in the centre of the jumbo. One of the nipper’s duties was to load bolts into the boom on the jumbo. This required the jumbo operator to manoeuvre the boom to near to where the nipper was standing so that the bolts could be loaded. Ordinarily, once a bolt was loaded into the boom, the nipper would step back and the operator would then rotate the boom around and drive the bolt into a hole which had been drilled. In addition to loading bolts into the boom, another part of the nipper’s role was to move the stockpile of bolts from location to location within the mine where reinforcement work was being undertaken.

The Incident

The incident in which Mr McGiffin was injured occurred just at the end of the shift on 2 March 2018. The bolt which struck him on the head and shoulder was intended by Mr Sole to be the last bolt to be inserted into a hole that shift. On this occasion, the bolt was bent when it was driven into a hole. This was not unusual; in any particular shift numerous bolts were bent when being driven into a hole. On this occasion, Mr Sole operated the boom to withdraw the bolt so that he could better examine it. He saw that it was jammed in the boom and decided to use a hammering mechanism in the boom to try and dislodge it by rattling it. Intending to operate the percussion lever to activate this mechanism, Mr Sole accidentally bumped the rotation lever which was next to the percussion lever. As a result, the bolt which was jammed in the boom spun around overhead and struck Mr McGiffin on the right shoulder and head. Exactly where McGiffin was standing immediately before he was struck is controversial, as is whether there were any prior visual communications between him and Mr Sole.

On any particular shift, occasions would arise when it was necessary for Mr McGiffin as the nipper to be involved in helping to remove bent bolts from the boom because they had become bent and jammed. This was a fairly common occurrence in some of the work Mr McGiffin and Mr Sole undertook, including the work they were doing on the day of the incident. However, Fosterville’s standard operating procedures for nippers prohibited them from moving forward of the jack legs at the rear of the jumbo, without being given permission by the jumbo operator. Mr Sole and Mr McGiffin gave broadly consistent evidence that they observed the following practice or procedure when it was necessary for Mr McGiffin to move forward of the jacks to assist in removing bent bolts from the boom at the front-end of the jumbo:

(a) Mr Sole, who operated the jumbo from a standing position towards the rear of the jumbo, would remove his hands from the controls on the operating panel of the jumbo.[3]
[3]Mr McGiffin’s evidence, which was disputed by Mr Sole, was that Mr Sole would also step back from the controls behind a line marked on the floor of the jumbo.

(b) Mr McGiffin was not permitted to move forward past the jacks until there was an exchange of ‘positive visual communication’ with Mr Sole. The precise form of this communication was not prescribed by Fosterville and varied between pairs of operators and nippers. In the case of Mr McGiffin and Mr Sole, it involved an exchange of nods of the head or glances. Mr McGiffin would nod at Mr Sole after he had looked to see that Mr Sole had removed his hands from the controls (and stepped back from the jumbo controls according to Mr McGiffin’s evidence); Mr McGiffin would then treat a responsive nod from Mr Sole as permission for him to proceed forward past the jacks to where the booms were located.

(c) In this exchange of ‘positive visual communication’, Mr McGiffin would be standing on the ground in line with the access steps on the jumbo directly next to where Mr Sole was standing on the jumbo.

This procedure was executed quickly, in a matter of seconds.

Contributory negligence

Fosterville’s case on contributory negligence was that, when the incident occurred, Mr McGiffin had moved into a clear position of danger relative to the jumbo without first having obtained the required permission from Mr Sole in accordance with the above procedure. That contention is based on the following evidence given by Mr Sole:

(a) In the 30 seconds or so before the incident, Mr Sole knew Mr McGiffin was in his general vicinity, but not exactly where he was.

(b) When operating the boom in an effort to withdraw the bent bolt and immediately before he accidentally bumped the rotation lever, Mr Sole thought Mr McGiffin was near the rear of the jumbo having been unloading bolts from the ute which was used to transport bolts and equipment in the mine. His evidence was that, earlier in the day, they had discussed the idea of lightening the ute before returning to the surface at the end of their shift.

(c) It was only after the bolt began to rotate and he looked towards the end of it that he saw Mr McGiffin in the position forward of the jacks where he was struck. He denied having given Mr McGiffin any signal to move forward into that area and stated that he would not have attempted to use any of the boom movements on the jumbo if he thought Mr McGiffin was in the vicinity.

This version of events was contested by Mr McGiffin. His evidence was that, when the bolt was bent and Mr Sole began to operate the boom to bring it closer to the jumbo:

I was standing where I always stand next to the jumbo in line with the steps. And [Mr Sole] stepped back from the controls, I looked at him, he had stepped back from the controls, hands were by his side. … I nodded to him, he nodded back to me. And I proceeded to grab the bolt.

…

… before I actually had a chance to even grab it I was struck.

As to the proposition that he may have been at the rear of the jumbo having been occupied in unloading bolts from the ute, Mr McGiffin’s evidence was that this was contrary to the established practice of setting up and unloading the bolts prior to commencing a shift. His evidence was that ‘the bolts were already there, and if I was doing that there would be no-one to load on the bolt in the first place for it to get bent.’

The evidentiary basis of Fosterville’s case on contributory negligence set out in [10] above proceeds from a materially incomplete picture of the evidence given by Mr Sole. The following aspects of his evidence given in cross-examination are important in relation to the issue of contributory negligence:

(a) Acknowledging that the usual procedure or practice set out in [9] occurred in an extremely short time span, Mr Sole accepted that it was possible that he might have glanced at Mr McGiffin while he was controlling the jumbo, and that Mr McGiffin might have taken this as a cue for him to move forward.

(b) His evidence was that, after he swung the boom back to better look at the bent bolt and saw that it was jammed, he paused for a moment to assess how to remove the bolt. He agreed that, if Mr McGiffin had been looking at him at this time, this could have been taken by him as a cue to move forward.

(c) In his handwritten statement made on the day the incident occurred, Mr Sole stated that ‘I didn't realise I had brought [the bolt] right back to Paddy and I believe he took this as his cue to remove the bolt from the boom’.

In making findings about what occurred immediately before Mr McGiffin was struck by the bolt, it must be remembered that the features of these events of present relevance – Mr McGiffin’s precise location, any eye-contact between himself and Mr Sole and the nodding of heads – are momentary and transitory in character. In the loud and busy atmosphere of an underground mine, at the end of a twelve-hour shift, these precise features are unlikely to register in the memory with any definition.

Having closely observed both Mr McGiffin and Mr Sole give evidence, it was my impression that they both endeavoured to assist the Court by giving honest evidence about their recollection of what occurred in the few seconds before the incident. It is not particularly surprising that the recollections were not the same. However, the differences in their recollections are not as stark once regard is had to the concessions and acknowledgements given by Mr Sole in cross-examination to which I have referred above. In those circumstances, on the balance of probabilities I find that, very shortly before he was struck by the bolt, Mr McGiffin moved forward of the jack legs on the jumbo when he believed Mr Sole had permitted him to do so, either because: (a) Mr Sole had stepped back (or paused for a moment) and glanced at him; or (b) Mr Sole had glanced at him and brought the bent bolt back closer to him.

In making these findings I am influenced by Mr Sole’s observation that Mr McGiffin was ‘quite cautious in everything that he did’. This was evident in the conviction with which Mr McGiffin gave evidence about where he was located just before he was struck, and how he came to move forward of the jacks. In my view, it is improbable that Mr McGiffin proceeded to do so without genuinely believing that Mr Sole had, by the above actions, given him permission to do so.

As the High Court stated in Podrebersek v Australian Iron and Steel Pty Ltd, the issue of contributory negligence is to be approached:[4]

… on the footing that the respondent [employer] had failed to discharge its obligations to take reasonable care, and that in considering whether there was contributory negligence on the part of the appellant [worker], the circumstances and conditions in which he had to do his work had to be taken into account. The question was whether in those circumstances and under those conditions the appellant’s conduct amounted to mere inadvertence, inattention or misjudgement, or to negligence.

[4](1985) 59 ALJR 492, 492.

This principle was affirmed in Bankstown Foundry Pty Ltd v Braistina.[5] In referring to Podrebersek, Mason, Wilson and Dawson JJ stated:[6]

A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage.

[5](1986) 160 CLR 301.

[6]Ibid 310.

The circumstances and conditions in which Mr McGiffin was working when the incident occurred and which were relevant to his movements around and forward of the jumbo were ripe for a ‘breakdown in communication’ as Mr Sole put it in his evidence. The nature of the ‘visual communication’ as a result of which the operator could give permission for the nipper to move forward of the jacks on the jumbo was not prescribed by Fosterville; that was a matter left to individual pairs of operators and nippers to determine, and those arrangements varied between pairs of workers. The informality of those arrangements was further underlined in the case of Mr Sole and Mr McGiffin. Their evidence was that the operator could convey permission for the nipper to move forward of the jacks by either a nod of the head or a glance. The proposition that, in a dynamic environment involving manual labour and heavy machinery, permission to move forward into an area of danger might hinge on the making of a mere glance only needs to be stated to reveal the inherent scope for error and misinterpretation. Moreover, Mr Sole and Mr McGiffin had different understandings about whether the procedure for the giving of permission for the nipper to move forward required the operator to step back from the controls.

Given these matters, I readily accept the submission made on behalf of Mr McGiffin that the system whereby the nipper would go forward of the jack legs based solely upon a nod or glance was an inherently flawed and unsafe system of work. It is a system which has been changed since the incident, including by implementation of a ‘nipper switch’.[7] It is in the context of this unsatisfactory system of work in which Mr McGiffin was doing no more or less than what the system required, that Mr McGiffin suffered injury as a result of a momentary lapse of concentration or inadvertence by either him or Mr Sole. In such a case, there is no room for a finding of contributory negligence.[8]
[7]A hydraulic interlock (‘nipper switch’) has since been implemented on all jumbos at Fosterville. A nipper switch is a button which isolates the booms from all operation when pressed, including making it impossible for a bolt to spin. An ‘emergency stop’ has also been implemented as a default position in the event the nipper switch is not functioning correctly.
[8]See for example Kulczycki v Metalex Pty Ltd (1995) 2 VR 377, 409.

Fosterville has accordingly failed to make out its case of contributory negligence.

Complex regional pain syndrome in outline

Before considering the course of medical treatment undertaken by Mr McGiffin following the incident, it is necessary to say something further about complex regional pain syndrome and the basis upon which it is diagnosed.

Complex regional pain syndrome is a syndrome characterised by a continuing regional pain that is seemingly disproportionate in time or degree to the usual course of any known trauma or other lesion. The pain is regional, not in a specific nerve territory or dermatome, and usually has a distal predominance of abnormal sensory, motor, sudomotor, vasomotor and/or trophic findings. It shows variable progression over time.

Complex regional pain syndrome is a difficult condition to diagnose. It is an abnormal response of the body to an injury and therefore the symptoms are not what one would expect from the degree of the initial injury. The symptoms of CRPS type 1 are pain, but can also involve sensations responsive to touch. It can also involve abnormal changes in the skin: by way of colour, temperature changes, thinning of the skin, swelling, changes to hair and nails, and sweating. Often, there are also changes in muscle tone.

There are two types of complex regional pain syndrome. The variant of relevance in this proceeding is CRPS type 1, previously known as reflex sympathetic dystrophy.

There is an established criteria for the diagnosis of complex regional pain syndrome, known as the ‘Budapest criteria’, as determined by the International Association for the Study of Pain. It is as follows:

(i)        Continuing pain that is disproportionate to any inciting event.
(ii)At least one symptom reported in at least three of the following categories:
·     Sensory: hyperaesthesia or allodynia;
·     Vasomotor: temperature asymmetry, skin colour changes, skin colour asymmetry;
·     Sudomotor/oedema: oedema, sweating changes, or sweating asymmetry;
·     Motor/trophic: decreased range of motion, motor dysfunction (e.g. weakness, tremor, dystonia), or trophic changes (e.g. hair, nail, skin).
(iii)At least one sign at time of evaluation in at least two of the following categories:
·     Sensory: evidence of hyperalgesia (to pin prick), allodynia (to light touch, temperature sensation, deep somatic pressure, or joint movement);
·     Vasomotor: evidence of temperature asymmetry (greater than one degree Celsius), skin colour changes or asymmetry;
·     Sudomotor/oedema: evidence of oedema, sweating changes, or sweating asymmetry;
·     Motor/trophic: evidence of decreased range of motion, motor dysfunction (e.g. weakness, tremor, dystonia), or trophic changes (e.g. hair, nail, skin).

(iv) No other diagnosis better explaining the signs and symptoms.

It will be necessary to more closely examine these criteria later in these reasons.
Physical injury

As I have noted, the principal controversy at trial was whether Mr McGiffin had established that he suffers from CRPS type 1 as a consequence of the incident on 2 March 2018. Before addressing the evidence given by the medical experts relevant to this controversy, I will first summarise the evidence given by Mr McGiffin about the nature of his injury and how it affects his day to day life. I will then outline the course of his medical treatment.

Mr McGiffin’s evidence

Mr McGiffin experiences pain throughout his right arm, although it is worse in his upper right arm. The pain is experienced through spasms which he described as feeling like electricity or lightning striking his right arm. He experiences ‘hundreds’ of such spasms each day, the intensity of which are not consistent; some are very severe, ‘like grabbing an electric fence’. They are not triggered by any particular event but some activities, such as dressing and showering (the pain is sensitive to water), make the pain worse. Bumping or knocking his arm is very painful and has sometimes causes him to vomit. Some days his pain is worse than other days. He takes Targin (15mg twice a day) to assist with the pain which he thought ‘doesn't do a hell of a lot’, but ‘takes the very edge off maybe’.

Mr McGiffin gave evidence that his right arm always feels hot, that it swells, and that he often notices it sweating.

Mr McGiffin has observed a considerable difference in colouring between his arms. The difference in colouring was constant, but the severity varied; sometimes his right arm ‘is reddish, sometimes it gets a purple splotchy look to it’. Even when his right arm was not particularly discoloured, the discolouring was still obvious.

Since his injury, Mr McGiffin has observed more hair growth on his right arm than on his left arm. He also finds it hard to cut the nails on his right hand; they are brittle when cut.

In the course of his evidence in chief, senior counsel for Mr McGiffin asked him to remove his pullover to allow me to view his uncovered arms and torso. From the Bench, I observed some red blotching on Mr McGiffin’s right arm which was not evident on his left arm, and moderately greater hair growth on his right arm as compared to his left.

Because of his right shoulder, Mr McGiffin sleeps on his left side on the couch. He will usually sleep for between three and half and five hours and will therefore sometimes have to sleep in the afternoon. He regarded his ability to concentrate during the day as poor.

Mr McGiffin’s evidence was that his right arm will not move and his right hand is fixed in a clawed grip which he cannot open. He could not remember when the clawing of his hand began.

To avoid embarrassment about the appearance of his right arm and hand, Mr McGiffin wears a hoodie every day, even at home. He tucks his arm under the hoodie so that people cannot see his arm or clawed hand, or he holds his right hand in the pocket of his hoodie. He maintains this posture while wearing a hoodie throughout his waking hours.

Mr McGiffin cannot use a knife and fork when eating; he only uses a fork with his left hand. He is unable to assist with meal preparation, but does some limited cooking of simple meals. There is little housework he can do. He does not, however, need assistance with dressing, showering or toileting.

Because of his right arm, Mr McGiffin cannot lift his eighteen-month-old son. He was distressed about being unable to assist and support Ms Tresize when she was in hospital immediately after his son’s birth. Mr McGiffin spends his days watching his son play. He assists Mr Tresize in supervising his son, but he is generally not able to supervise his son himself. He does not go out much.

Mr McGiffin drives a small automatic SUV, but only when necessary, such as to go to shopping at the local supermarket, which he rarely does. Once every couple of weeks he drives to visit family in nearby suburban Bendigo. When he drives, he drives with his left hand only; his right hand is either in his lap or in his hoodie. Because the indicator is on the right hand side of the steering wheel, he uses his left hand to indicate, moving it over the steering wheel to the indicator, a motion he described as ‘not easy, but manageable’. When cross-examined, he rejected the proposition that he regularly used his right hand to assist when driving.

Mr McGiffin gave evidence that he did not drive in the country at all and that he cannot drive long distances because he gets too sore. However, later in cross-examination, he also gave evidence that, about 10 months ago, he visited Halls Gap for about three days with Ms Tresize and their children. Mr McGiffin drove part of the way from their home in Bendigo.

Mr McGiffin described himself as being depressed and that there was ‘not a lot of hope going forward with [his] injury in general. Not a hell of a lot of hope for life’. He has not, however, been prescribed anti-depressant or anti-anxiety medication.

Medical reports and course of treatment

In the two or three months after the incident and while he was on alternative work duties, Mr McGiffin remained under the treatment of his general practitioners and received physiotherapy treatment. His shoulder pain did not improve. In June 2018 he was referred to an orthopaedic surgeon, Brendan Soo.

Upon examining Mr McGiffin, Mr Soo suspected that he had sustained a fracture of the acromion or may have caused some instability to a pre-existing os-acromiale. On 26 July 2018, Mr Soo performed surgery on Mr McGiffin’s right shoulder; the surgery was an arthroscopic decompression, bursectomy and biceps tenodesis. He diagnosed a partial non-biceps tendon tear in the right shoulder.

In August 2018, Mr McGiffin was referred to a psychologist, Kim Holmberg, who has continued to treat Mr McGiffin thereafter. Mr Holmberg diagnosed Mr McGiffin as suffering from depression and anxiety.

Despite the surgery performed by Mr Soo, Mr McGiffin continued to experience pain and the mobility in his left shoulder and arm deteriorated. He again consulted Mr Soo who arranged for him to undergo a hydrodilation procedure on his right shoulder in 2018 and again in April 2019. Those procedures, together with a cortisone injection, did not improve Mr McGiffin’s symptoms.

In December 2018, Mr Soo stated in a letter to Mr McGiffin’s general practitioner that he suspected that Mr McGiffin had developed a complex regional pain syndrome involving his right shoulder and that, despite the hydrodilation treatment, Mr McGiffin had made no progress at all and, if anything, his shoulder was stiffer than it was prior to the treatment. Mr Soo also noted the wasting of his deltoid and some skin discolouration. He referred Mr McGiffin to the John Lindell Rehabilitation Centre for advice about ongoing therapy.

Mr McGiffin’s evidence was that, in the year after the operation, the condition of his right arm progressively declined. In this time, he was able to move it to some degree and he could move his hand, but he was not able to straighten his arm and could not move his shoulder at all.

On 17 June 2019, Thomas Kossmann, an orthopaedic surgeon, provided a medico-legal report in respect of Mr McGiffin. After referring to a crush injury affecting Mr McGiffin’s right upper extremity, Mr Kossmann diagnosed Mr McGiffin’s as follows:

Partial long bicep tendon tear right shoulder joint, for which Mr McGiffin underwent an operative intervention, in the form of an examination under anaesthesia, a glenohumeral arthroscopy, tagging and tenotomising of the biceps tendon, a superior labrum debridement, a bursectomy and an acromioplasty, which was complicated by the development of a complex regional pain syndrome affecting the right shoulder joint with severe movement restrictions and ongoing pain issues affecting all aspects of Mr McGiffin’s life.

Mr Kossmann opined that Mr McGiffin’s prognosis was unknown and that ‘he suffers from some form of a complex regional pain syndrome of his right upper extremity, for which he will require further investigations by a neurologist’. Mr Kossmann stated that, on inspection of Mr McGiffin’s upper extremities:

… it is obvious that his right hand and forearm have a different colour compared with the left side. He has a different sweating pattern compared with the left side. He has different hair growth to the left side. These observations indicate that he suffers from some kind of complex regional pain syndrome.

Mr Kossmann considered that Mr McGiffin had no capacity to return to his pre-injury work, and no capacity to engage in any physical or demanding work. He reached the same conclusions in a later report he prepared in March 2021, adding that as a result of Mr McGiffin’s ‘drastic deterioration’, he would have ‘no work capacity for the foreseeable future’.

On 7 June 2019, Dr David Barton, a consulting occupational physician, consulted with Mr McGiffin and diagnosed him as having ‘some persistent dysfunction of the right shoulder following surgical treatment of an apparent work injury’. Dr Barton identified several findings that did not fit with a straightforward physical problem and which suggested that a degree of overlay was complicating Mr McGiffin’s situation. In particular, he referred to the marked limitation of right shoulder movements which did not fit with any particular physical injury or problem, and that there was no objective evidence of any muscle wasting or evidence of a problem around the shoulder.

In June 2019, Mr Soo referred Mr McGiffin to Dr Neels du Toit, a sports and exercise physician and interventional pain proceduralist. In his referral, Mr Soo stated that Mr McGiffin ‘has developed a right shoulder capsulitis and chronic regional pain syndrome and has failed to respond to multiple hydrodilations and physiotherapy’; he referred to Dr du Toit taking over ‘the management of his chronic regional pain syndrome’.

Dr du Toit consulted with Mr McGiffin in July 2019. He considered that Mr McGiffin’s symptoms were ‘clearly suggestive of complex regional pain syndrome even though he does not have clinical signs for this’. He also stated that Mr McGiffin’s symptoms could be described as ‘neuropathic shoulder pain’. Dr du Toit recorded that:

At the moment he describes at times 8/10 right shoulder and right arm pain. The pain has a burning character. He is not using the shoulder due to restriction in range of movement and fear of making pain worse with movement. He has noticed some colour changes to the shoulder and at times the shoulder feels hot and cold. He has significant night pain at present.

Dr du Toit recommended ongoing psychological support and physical therapy as well as the option of a T2 and T3 sympathetic nerve block. He also prescribed Endep and indicated that consideration could be given to pulsed radio frequency of the same nerves to provide more prolonged relief.

On 12 December 2019, Associate Professor Anthony Buzzard provided a medical report in which he stated that he could not find any vascular abnormalities, colour changes or reflex abnormalities in Mr McGiffin’s arms. He expressed the view that there was no evidence of CRPS type 1; ‘there isn’t any colour change or distribution change or nail change in the right hand’.

On 1 April 2020, Mr McGiffin consulted with Dr Clayton Thomas, a consultant in rehabilitation and pain medicine. In his report, Dr Thomas opined that Mr McGiffin was ‘suffering from some form of chronic pain syndrome’, either CRPS type 1 or ‘functional neurological disorder’. In assessing Mr McGiffin’s work capacity, Dr Thomas noted as follows:

[Mr McGiffin] does not have a current work capacity for suitable employment. There are no other types of employment that I would wish to consider for him as he does not present as having work capacity. Not only has his right upper limb, which is his dominant limb, been affected and has become non-functional, the nature of his pain syndrome would preclude his ability to use his left upper limb for anything that would be considered reasonable from an employment perspective. He does not have a current work capacity to undertake pre-injury duties nor hours with his usual workplace nor with an alternate workplace. … He is at risk that this will become an indefinite situation.

On about 6 April 2020, Mr McGiffin consulted with Dr Dion Suyapto, an occupational and environmental physician. In his report, Dr Suyapto diagnosed Mr McGiffin as having a ‘right shoulder partial tear to the long head of biceps requiring surgical management clinically, with current clinical presentation of adhesive capsulitis’. He thought that Mr McGiffin’s prognosis in relation to his physical injuries was poor. Dr Suyapto opined that Mr McGiffin does not have the capacity to perform suitable employment, noting that:

… from the physical point of view, [Mr McGiffin] may be retrained. However I note the various psychological reports which makes concentration, memory and retention of study material more difficult. Furthermore, the pain level, the restricted sleep and movement, as well as the use of medication, will unlikely result in him being able to return to work and be retrained. It is my opinion, that this will more than likely be permanent and will continue for the foreseeable future.

Dr Suyapto reached the same conclusions and prognosis in a later report he prepared in April 2021.

On 8 April 2020, Mr McGiffin consulted with Dr Simone Ryan, a consultant occupational physician. In her report, Dr Ryan noted ‘an obvious colour difference of the right hand compared to the uninjured left hand’ and assessed that Mr McGiffin had developed a type 2 complex regional pain syndrome. She considered that Mr McGiffin presented ‘with no current capacity for work’, but was of the view that the incapacity was ‘not likely to continue indefinitely’.

On 10 June 2020, Mr McGiffin consulted with Dr Tony Kostos, a rheumatologist. Dr Kostos diagnosed Mr McGiffin as suffering from ‘failed right shoulder surgery compounded by the development of a chronic regional pain syndrome’ and that ‘the only possible diagnosis I can make… is chronic regional pain syndrome’. However, he was of the view that Mr McGiffin did not meet the Budapest criteria for CRPS type 1. He considered that Mr McGiffin’s prognosis was extremely poor and that Mr McGiffin was not capable of undertaking suitable employment.

On 10 May 2021, Mr McGiffin consulted with Dr Richard Sullivan, an interventional pain specialist and specialist anaesthetist. Dr Sullivan identified noticeable temperature differences between Mr McGiffin’s left and right arms and exaggerated nail growth on the right hand. He assessed Mr McGiffin as having a chronic pain condition affecting his right upper limb with features consistent with CRPS type 1, but considered that diagnosis to be ‘borderline’.

Dr Sullivan considered that Mr McGiffin could not return to his pre-injury employment and did not have the capacity to perform suitable employment. His incapacity for employment was permanent because of ‘the very severe nature of the residual pain and substantial functional limitations associated with this chronic pain condition’.

On 18 May 2021, Mr John Salmon, an orthopaedic surgeon, examined Mr McGiffin. In his report, Mr Salmon stated that, upon examination, Mr McGiffin was:

… unable or unwilling to move the shoulder, elbow, wrist or hand. There were no classical features of chronic regional pain syndrome in particular no allodynia and no dystrophic changes in the upper limb.

Mr Salmon’s diagnosis was as follows:

Mr McGiffin has had a shoulder injury diagnosed by Mr Soo in that he had impingement and a biceps tendon injury treated appropriately with surgery and his clinical findings are no longer consistent with a structural injury.
I note from reports by psychologists and pain specialists that he may have a chronic pain syndrome or psychological issue and would defer to their expertise with regard to these conditions.

Mr Salmon considered that, from an assessment of Mr McGiffin’s rotator cuff and biceps injury, Mr McGiffin should be capable of some of his previous work activities, in particular physical work below shoulder height. However, Mr Salmon noted that he did not seek to comment further in relation to Mr McGiffin’s ability to carry out these activities in light of other conditions which may be present and better assessed by experts in other fields.

On 31 May 2021, Mr McGiffin consulted with Dr Debbie Kesper, a consulting physician in rehabilitation medicine, for management of what is referred to in her report as ‘chronic regional pain syndrome’. The report records that Mr McGiffin ‘can’t move his shoulder, elbow, wrist or finger and is quite discoloured’ and that he was taking 30mgs of OxyNorm per day.

On 24 September 2021, Mr McGiffin consulted with Dr Janaka Seneviratne, a neurologist and clinical neurophysiologist. Dr Seneviratne’s diagnosis was that Mr McGiffin had initially sustained injuries to the right shoulder which were predominately orthopaedic/musculoskeletal, but that this had now ‘developed into a chronic pain condition affecting the right upper extremity’. Dr Seneviratne assessed that Mr McGiffin ‘has no nerve injury or neurological injury causing the right upper extremity weakness and sensory disturbance, this is purely related to his chronic pain condition and underlying psychological condition’. He considered that, as a result of Mr McGiffin’s psychological condition, it was most likely that he would not be capable of returning to full-time pre-injury work in the foreseeable future, nor of retraining for suitable employment.

Expert witness evidence

The following witnesses were called by Mr McGiffin and gave evidence that he suffered from CRPS type 1 as a result of the incident:

(a) Dr Robert Gassin, general practitioner (musculoskeletal and interventional pain management); and

(b) Dr Peter Blombery, consultant physician.

The following witnesses were called by Fosterville and disputed the diagnosis that Mr McGiffin suffered from CRPS type 1:

(a) Dr Joseph Slesenger, specialist occupational physician; and

(b) Dr David Vivian, musculoskeletal physician.

Dr Robert Gassin

Dr Robert Gassin is a medical practitioner who has practised in the area of musculoskeletal and interventional pain management for about 20 years. His day-to-day practice involves the treatment of patients with chronic pain. He has regularly treated people with CRPS type 1. Dr Gassin examined Mr McGiffin on 4 November 2021 and produced a medical report which was received into evidence.

In the course of his examination, Mr McGiffin told Dr Gassin that he suffers constant severe pain radiating from the right shoulder down to the fingers of the right hand and that he suffers spontaneous stabbing pains on the front of his right shoulder, as well as muscle spasms and twitches in the right biceps region. These episodes can last from between ten seconds and ten minutes, feel like he is ‘touching an electric fence’ and leave him feeling completely paralysed. Dr Gassin did not observe any spasming in Mr McGiffin’s arm during his consultation.

Dr Gassin gave evidence that these types of symptoms were not unusual in relation to patients suffering from CRPS type 1. Although patients may have different symptoms, the symptoms described by Mr McGiffin were consistent with the general description of how patients with CRPS type 1 describe their experience of pain.

In the course of his examination, Mr McGiffin also told Dr Gassin that his right upper arm and shoulder were often red and blotchy, and that the hair growth around his right shoulder was dark and blotchy. Photographs of Mr McGiffin taken by Dr Gassin show differences in hair growth between the two shoulders and blotchiness on Mr McGiffin’s right upper arm and shoulder. Dr Gassin gave evidence that blotchiness is something that may be associated with CRPS type 1, but that it varies from patient to patient and, in relation to particular patients, very often varies from time to time, but can also be constant. More generally, skin discoloration can vary from time to time. He also confirmed that altered hair growth is associated with CRPS type 1.

Dr Gassin noted in his report that Mr McGiffin was taking a low to moderate dosage of Targin, a ‘morphine equivalent’.

Dr Gassin’s summary of his examination of Mr McGiffin included the following:

(a)Mr McGiffin wore a hoodie, with his right hand tucked in the hoodie’s pocket through most of the consultation. Mr McGiffin’s right hand was ‘clawed’ (in that he held his right thumb inside his palm). In evidence he accepted that, upon examination, Mr McGiffin presented with a grossly disabled right arm and gave a description of his disability that would be obvious to any examiner.
(b)Mr McGiffin held his right upper limb very still, answered Dr Gassin’s questions in an appropriate and timely way, and made no attempt at exaggerating his symptoms (by which Dr Gassin meant that he did not exhibit any ‘pain behaviours’, such as moaning and grimacing).
(c)Mr McGiffin was unwilling to move his right upper limb. Dr Gassin did not attempt to mobilise the arm because he did not consider it would assist in diagnosing Mr McGiffin’s conditions and because, in his experience, patients with symptoms of the type presented by Mr McGiffin can experience lasting pain as a result of attempts to move the relevant body part.
(d)Dr Gassin did, however, examine Mr McGiffin’s arm by touching it to see if there was any allodynia (the experience of a painful sensation following a typically non-painful stimulus such as light touch) or hyperalgesia (the experience of an unpleasant sensation following a typically non-painful stimulus). He observed Mr McGiffin to have increased sensitivity to light touch in the right scapular region, being suggestive of either allodynia or hyperaesthesia, and allodynia to light touch and hyperalgesia to deep palpation through the right upper limb.
(e)Dr Gassin observed that there was obvious red discolouration on the posterior and lateral aspect of Mr McGiffin’s right upper arm.
(f)Dr Gassin observed Mr McGiffin to have increased ‘skin drag’ over his right arm, being indicative of increased sweating. Dr Gassin described ‘skin drag’ as the feel of ‘stickiness’ when, because of increased moisture in the skin, the fingers do not run as smoothly over skin.
(g)Dr Gassin observed that there was no wasting of Mr McGiffin’s right arm in that there was no material difference in the circumference between Mr McGiffin’s arms. In his oral evidence, Dr Gassin explained that he suspected that this may be because wasting of the muscles in the right arm was offset by oedema and swelling of the subcutaneous tissues.
(h)Dr Gassin noted that Mr McGiffin’s nail growth was normal on the right hand side, but that there was an area of increased hair growth overlying the right shoulder laterally.

Further to paragraph (g) above, Dr Gassin’s explanation for the circumference of Mr McGiffin’s arms being the same, despite there being a history of virtually no movement of the right arm over a number of years, was that muscular wasting could be ‘complemented’ by the swelling of fat tissues in the arm. Dr Gassin gave evidence that wastage is not an integral part of the diagnosis of CRPS type 1. He considered that Mr McGiffin still satisfied the Budapest criteria, whether or not there had been wasting of his right arm.

Dr Gassin’s ultimate conclusion was that Mr McGiffin’s presentation fulfilled the Budapest criteria for the diagnosis of CRPS type 1. In reaching that conclusion, Dr Gassin gave evidence about his findings in relation to Mr McGiffin in respect of each of the elements which make up the criteria as set out in [26] above. In relation to the criterion in paragraph (ii),[9] Dr Gassin found that the following symptoms were reported by Mr McGiffin:
[9] At least 1 symptom reported in at least 3 of the following categories:
·Sensory: Hypaeresthesia or allodynia;
·Vasomotor: Temporary asymmetry, skin colour changes, skin colour asymmetry;
·Sudomotor/oedema: Oedema, sweating changes, or sweating asymmetry;
·Motor/trophic: Decreased range of motion, motor dysfunction (e.g. weakness, tremor, dystonia), or trophic changes (e.g. hair, nail, skin).

·     Sensory: allodynia and most likely hyperalgesia as well;
·     Vasomotor: skin colour changes;
·     Sudomotor/oedema: sweating changes;
·     Motor/trophic: decreased range of motion and trophic changes (hair in terms of thickness and growth).

In relation to the criterion in paragraph (iii),[10] Dr Gassin found the following signs to be evident in relation to Mr McGiffin:

·     Sensory: allodynia;
·     Sudomotor/oedema: evidence of oedema (swelling);
·     Motor/trophic: motor dysfunction, trophic hair changes and skin changes.

[10] At least 1 sign at time of evaluation in at least 2 of the following categories:

·Sensory: Evidence of hyperalgesia (to pinprick), allodynia (to light touch, temperature sensation, deep somatic pressure, or joint movement);

·Vasomotor: Evidence of temperature asymmetry (>1°C), skin colour changes or asymmetry;

·Sudomotor/oedema: Evidence of oedema, sweating changes, or sweating asymmetry;

·Motor/trophic: Evidence of decreased range of motion, motor dysfunction (e.g. weakness, tremor, dystonia), or trophic changes (e.g. hair, nail, skin).

Dr Gassin gave evidence that the symptoms of CRPS type 1 do not become evident ‘overnight’. It may be some time before a patient meets all of the Budapest criteria.

In cross-examination, Dr Gassin accepted that if a limb is used much less than it would normally be used, temperature, colour and vascular changes may be observed. In forming his diagnosis in relation to Mr McGiffin, Dr Gassin did not examine whether there was any temperature differential between the right and left upper limbs; he did not have the specific tool required to undertake such assessments. He did not consider it to be essential as he already had sufficient information to make a diagnosis.

In Dr Gassin’s opinion, because of Mr McGiffin’s ongoing severe pain, episodes of severe and spontaneous ‘electric’ shock and his inability to use his right upper limb, Mr McGiffin did not currently have a capacity to perform suitable employment. This was very unlikely to change in the foreseeable future.

Dr Gassin considered that Mr McGiffin’s prognosis was poor because he is likely to suffer from ongoing pain and significant associated disability relating to CRPS type 1 for the foreseeable future. Mr McGiffin’s condition was permanent and stabilised; any change in the future would be extremely slow.

Dr Peter Blombery

Dr Peter Blombery is a medical practitioner who practices as a consultant physician in vascular disease and pain medicine. He has had more than 30 years’ experience in treating patients with complex regional pain syndrome.

Dr Blombery examined Mr McGiffin on 11 November 2021. His report based upon that examination was tendered into evidence.

When examined, Dr Blombery considered that Mr McGiffin presented reasonably, but with some ‘exaggerated pain behaviour’. By this, Dr Blombery meant where a person demonstrates more marked signs of being in pain, such as wincing or moving slowly, than one would generally expect. He identified that there may have been secondary psychological factors which play a role in such behaviour. Overall, however, Dr Blombery assessed Mr McGiffin as a ‘genuine case’.

Dr Blombery’s observations of Mr McGiffin upon examination included the following:

(a)Mr McGiffin held his right hand with the fingers tightly flexed and the hand like a fist inside his jacket. Dr Blombery gave evidence that this was a typical posture of a person with complex regional pain syndrome and was probably due to flexion, or a spasm, in the muscles of the forearm.
(b)Mr McGiffin’s right wrist was flexed at 50 degrees and appeared to be fixed; his right elbow was also fixed at about 70 degrees; and there was no shoulder movement on the right side.
(c)Mr McGiffin was ‘exquisitely tender’ to light touch everywhere in the right arm. Dr Blombery identified this as a form of allodynia.[11]
(d)Dr Blombery used an infrared thermometer to ascertain that, below the elbow, Mr McGiffin’s right arm was 1 degree cooler than the left arm, but that above the elbow, the right arm was 3 degrees cooler than the left arm. The difference of 3 degrees was significant and abnormal: a maximum of a 1.5 degree difference in temperature between the two arms is the maximum normal range. Dr Blombery accepted that, if a person did not make use of their arm for a period of a week, it was possible that that arm may get cooler and colour changes in it may also become evident. However, the maximum extent of such changes would become evident if an arm was immobilised for a day or two.
(e)Despite the disparity in the temperature of Mr McGiffin’s arms above the elbow, his arms were of a similar colour. Dr Blombery’s evidence was that, because of the activity of the sympathetic nervous system, the skin temperature and skin colour of patients with CRPS type 1 can fluctuate from time to time and from day to day.
(f)There was tenderness over Mr McGiffin’s upper thoracic spine and in particular around the shoulder. Mr McGiffin had some restricted movement of the cervical spine because of a reduction in right lateral flexion.

[11]Being allodynia to pressure with light touch causing excessive pain.

In his examination of Mr McGiffin, Dr Blombery did not identify any discrepancy in hair growth, or sweating.

Dr Blombery referred to Mr McGiffin in his report as having ‘a severely disabled right arm which is effectively useless’. He also identified that there was ‘a lot of muscle spasm present in the area and that is a very prominent feature as is seen in some patients with complex regional pain syndrome’. Dr Blombery’s evidence was that Mr McGiffin could not move his arm when he examined it. His evidence was that there was a muscle spasm which prevented the movement.

Dr Blombery did not find any wasting in Mr McGiffin’s right upper limb. Dr Blombery considered that this was able to be reconciled with a diagnosis of CRPS type 1 because Mr McGiffin did not have a paralysed ‘floppy’ arm. His evidence was that a muscle spasm holds Mr McGiffin’s arm in place and that this activates the muscles and prevents any wastage from occurring. The clenching of the hand was one of the manifestations of complex regional pain syndrome, similar to the fixed state of flexion of the elbow. This occurs because the muscles are in spasm thereby preventing movement. Although a lack of use of muscles will generally cause wasting, if a person holds their arm in a fixed in position all of the time with a clenched fist, as in the case of Mr McGiffin, they will be engaging their muscles all the time. The holding of that posture will, as a consequence, offset any wasting.

Dr Blombery rejected the explanation for Mr McGiffin’s presentation as being that he had simply chosen not to use his arm. He considered that hypothesis to be inconsistent with the muscle spasm in Mr McGiffin’s arm which he observed. By this, Dr Blombery was not speaking of the twitching of muscles, but where a patient tenses up the shoulder to stop movement. The finding of muscle spasm was objective because it was possible to feel that the muscles were in spasm. In his opinion, Mr McGiffin was unable to move his arm.

On the basis of his examination of Mr McGiffin, Dr Blombery concluded that Mr McGiffin had developed classic signs of CRPS type 1 which fulfilled the Budapest criteria. In particular, Dr Blombery considered that Mr McGiffin satisfied the following criteria:

(a) continuing pain disproportionate to the inciting event;
(b)symptoms of allodynia, skin colour changes and a decreased range of movement of the shoulder;
(c)signs of allodynia to light touch, temperature asymmetry and a decreased range of movement; and
(d)there was no other diagnosis that better explained these signs and symptoms.

In Dr Blombery’s opinion, Mr McGiffin had no capacity for suitable employment. His dominant right arm was effectively useless and he required opioid analgesics to control pain. Mr McGiffin’s prognosis for recovery was poor and was unlikely to change in the foreseeable future.

Dr Blombery agreed in cross-examination that Mr McGiffin had no irreversible neurological abnormality. He agreed that Mr McGiffin’s nerve functions were intact.

Dr Joseph Slesenger

Dr Joseph Slesenger is a medical practitioner who practises as a specialist occupational physician.

Dr Slesenger examined Mr McGiffin on 3 May 2021 and produced a medical report which was tendered into evidence. For Dr Slesenger, the striking feature of his examination of Mr McGiffin was that Mr McGiffin had virtually no movement in his right upper arm. Mr McGiffin’s hand was held in a prone and flex position against his torso. He could not demonstrate any active movement of the shoulder, the elbow or the right wrist, and his hand was clenched around his thumb. It was, however, notable to Dr Slesenger that there was no wasting around Mr McGiffin’s right shoulder and there were callosities on his left hand, together with ingrained dirt on the left palm.

Dr Slesenger considered that the existence of callosities and ingrained dirt was evidence that Mr McGiffin had recently performed repetitive and heavy manual tasks. Dr Slesenger’s evidence was that the ingrained dirt was not superficial, but within the actual callosities on his left hand. He therefore rejected the suggestion that it indicated an absence of recent or regular cleaning of the hand. He also rejected the proposition that callosities might appear regardless of whether a task is heavy or not and did not accept that the callosities could be the result of light, regular use by Mr McGiffin of his left hand.

From his review of the documents relating to the history of his medical treatment, Dr Slesenger observed that Mr McGiffin appeared to have undergone a multi-disciplinary evaluation, but that there was some uncertainty about his engagement with the program as he had not completed a pain management program. Dr Slesenger also commented that Mr McGiffin appeared to be detached from ongoing specialist review, referring in particular to Mr McGiffin not having undergone further assessment or treatment under the care of Dr du Toit.

As to the diagnosis of Mr McGiffin’s condition in relation to his right shoulder, Dr Slesenger referred to a number of features or conditions: soft tissue injuries; possible rotator cuff tear; bursitis; bursectomy and biceps tenodesis; and chronic right shoulder pain with radiating symptoms. He also referred to the ‘subsequent development of adhesive capsulitis/complex regional pain syndrome’. In cross-examination, Dr Slesenger ‘qualified’ this diagnosis and stated that the complex regional pain syndrome had now resolved. Although that condition was referred to in the medical records with which he was provided, he did not consider that it persisted at the time of his examination of Mr McGiffin. He did not consider there was any evidence to support a diagnosis of complex regional pain syndrome at the time of his examination of Mr McGiffin.

In providing his diagnosis, Dr Slesenger expressed a number of reservations about Mr McGiffin’s presentation:

(a)The ‘absence of wasting around the right shoulder/right upper limb despite the weakness, restricted range of movements and absence of use of the right upper limb’.
When comparing Mr McGiffin’s arms, the right upper limb and the left upper limb showed no evidence of muscle loss. Dr Slesenger anticipated that, in the absence of use of the right shoulder, the right shoulder would have wasted quite significantly. He measured Mr McGiffin’s biceps and forearm; the right side appeared to be larger than the left as one would anticipate in relation to a dominant side. Dr Slesenger considered that this indicated that it was unlikely that Mr McGiffin was not using the right shoulder.
Dr Slesenger did, however, accept that the lack of wasting in the forearm could possibly be explained by the fact that Mr McGiffin’s arm was held in a fixed, clenched position requiring the use of muscles. He did not accept, however, that it would explain the shoulder and the upper arm lack of wasting.
(b)There were no trophic changes consistent with a diagnosis of complex regional pain syndrome.
Mr McGiffin’s right and left sides appeared to be the same in terms of mottling, sweating and hair growth. However Dr Slesenger agreed that, in relation to CRPS type 1, not all trophic changes such as changes in skin colour, alterations in temperature and alterations in hair distribution will necessarily be evident together, and that they may fluctuate and vary from time to time.

(c) There was no wasting of his right hand despite the severe weakness identified.
(d)That Mr McGiffin continued to drive despite his reported inability to use his right arm.
Dr Slesenger noted that Mr McGiffin was currently driving an automatic vehicle with a starter button on the left side and that, although his ability to drive was variable and unpredictable because of pain, he could drive for up to 90 minutes and, on other occasions, for no more than five minutes. Dr Slesenger gave evidence that Mr McGiffin told him that he was not using his right arm at all when driving. Dr Slesenger considered this to be particularly difficult and dangerous and that Mr McGiffin may not be fit to drive.

(e) There was evidence of manual tasks being performed on the left side.

Dr Slesenger was of the view that Mr McGiffin’s capacity was greater than that which he demonstrated and described on examination. In his opinion, Mr McGiffin’s organic injury had left a residual impairment, but taking into account the organic basis of that impairment, he considered that he retained capacity. There was enough evidence from his examination to indicate that Mr McGiffin’s capacity to use his right arm was greater than what he was claiming. He referred to the absence of wasting around the right shoulder and the measurements which indicated that the circumference of his left arm was less than the right, in circumstances where Mr McGiffin had said he was more reliant upon his left side. In that situation Dr Slesenger would have anticipated that his left arm would have ‘bulked up’. In Dr Slesenger’s opinion, Mr McGiffin’s presentation on examination did not support what he reported in examination.

Despite this evidence, Dr Slesenger only reluctantly accepted that he did not accept the history given by Mr McGiffin that he was unable to use his right arm. However, he accepted that, if Mr McGiffin did not in fact have the ability to use his right arm, then it would be very difficult for him to find suitable employment given that he is a right hand dominant worker.

Having regard only to the physical injuries resulting from Mr McGiffin’s employment, Dr Slesenger was of the opinion that, although it was a ‘difficult call’, Mr McGiffin could return to work to perform suitable alternative duties with restrictions: no pushing/pulling/carrying/lifting over five kilograms; no sustained forward reaching; no over shoulder reaching; and no repetitive upper limb tasks. Dr Slesenger also accepted that there were barriers to Mr McGiffin returning to work because there was no return to work plan in place and because he was not being supported by a return to work coordinator. His assessment of Mr McGiffin’s capacity for work did not take into account any psychological or psychiatric reaction to his injury.

Dr Slesenger characterised Mr McGiffin as a ‘complex case’ and recommended that he be referred to a pain specialist. In his opinion, in most cases complex regional pain syndrome resolves with the passage of time; in his view there were opportunities for treatment by a pain specialist. Dr Slesenger did not have any specialist qualifications or training in pain medicine.

Dr David Vivian

Dr David Vivian is a qualified medical practitioner who has practiced since 1982 as a specialist musculoskeletal physician including in the treatment of pain. As part of his practice, he commonly treats shoulder conditions and chronic pain conditions, including CRPS type 1. He has diagnosed many patients with CRPS type 1, is familiar with nature of the condition and the Budapest criteria and recognises CRPS type 1 as a diagnosable condition.

Dr Vivian first examined Mr McGiffin on 6 October 2021 by telehealth and the results of his examination are referred to a report dated 7 October 2021 which was received into evidence.

In his report, Dr Vivian summarised some of the medical documents with which he was provided including the operation record prepared by Mr Soo. Dr Vivian noted Ms Soo’s diagnosis as being ‘partial long biceps tendon tear right shoulder’ which Dr Vivian described as a ‘trivial injury’. He also referred to Mr Soo’s note of his examination of Mr McGiffin under anaesthetic being ‘full range of glenohumeral movement’. Dr Vivian considered this to be significant because it indicated that, at the time of the operation, there was no evidence of restriction of movement of the shoulder joint. Dr Vivian also noted that Mr Soo referred to there being evidence of ‘some early AC joint arthritic change’.

Dr Vivian also referred to the report dated 31 July 2019 prepared by Dr du Toit with which had been provided. Amongst other things, he noted that, consistent with his own examination of Mr McGiffin referred to below, the striking feature identified by Dr du Toit was that Mr McGiffin did not use his right arm at all. He also noted Dr du Toit’s assessment that Mr McGiffin’s symptoms were clearly suggestive of complex regional pain syndrome, even though he did not have clinical signs for it. Dr Vivian disagreed with Dr du Toit’s observation that Mr McGiffin’s symptoms could also be described as a ‘neuropathic shoulder pain’. In Dr Vivian’s opinion, such a description would only be apt if there was evidence of nerve damage; there was none in relation to Mr McGiffin. Dr Vivian described the planned options for treatment identified by Dr du Toit as orthodox.

Dr Vivian was asked to assess whether he was able to sufficiently examine Mr McGiffin by telehealth, or whether he would need to examine him in person to confirm his findings. In his report, Dr Vivian stated that:

I was able to satisfactorily examine the worker by telehealth. I observed that he could not or would not move his arm at all. He said that any attempt at movement would be very painful. I would not be able to attempt passive movement in a face to face consultation as it would be too painful.
I was able to observe to my satisfaction that he does not have significant manifestations of CRPS.
I could not assess for significant wasting or test power movements. However, I assume that the arm and neck movements would be difficult to assess in any case because of pain.

In oral evidence, Dr Vivian stated that he was able to conclude by telehealth that Mr McGiffin did not have any significant manifestations of complex regional pain syndrome because, in his assessment, Mr McGiffin presented with psychogenic pain, there being no evidence that he had any orthopaedic condition or musculoskeletal condition. He also considered it very unlikely that Mr McGiffin had a neurological condition.

Dr Vivian stated that psychogenic pain could not be easily evaluated and that Mr McGiffin was not co-operative upon examination. Dr Vivian referred to Mr McGiffin telling him that his pain levels were at times 12 out of 10, which Dr Vivian regarded as an obvious exaggeration. Dr Vivian also considered that it was strange that Dr du Toit had offered Mr McGiffin a logical plan of treatment, but Mr McGiffin could not even remember him. Dr Vivian stated:

So I just thought that he could not move anything and I have never seen a person with that, have a frozen shoulder in my time. Because I have examined people under anaesthetic with this sort of condition and found their movements have been normal. I can’t say his movements are normal but – I would presume the lack of intent to move was in my view just a voluntary decision he had made.

In relation to his findings on examination, Dr Vivian stated that, having asked Mr McGiffin to bend to the side, he would not relax his arm so that gravity would operate for his arm to dangle loosely. Dr Vivian observed that Mr McGiffin ‘held it tight in the body’ and that ‘it was him doing that. He would not move his arm at all’. Dr Vivian’s evidence was that, in the absence of paralysis, it is impossible for a patient not to be able to move their arm. He had never seen a person who would not co-operate in an examination by not permitting their arm to be moved. Dr Vivian also observed that Mr McGiffin’s right arm was marginally paler, but it did not look swollen. Mr McGiffin told Dr Vivian that his arm was sensitive to touch, especially at the shoulder tip. In his report, Dr Vivian stated that, over time, Mr McGiffin stopped moving the right arm because of severe pain and spasm. He did not observe any spasm when he examined Mr McGiffin by telehealth.

Dr Vivian’s evidence was that, although it was impossible to discern if there was any musculoskeletal pathology in Mr McGiffin’s shoulder, there was no musculoskeletal injury which explained his presentation.

In his diagnosis of Mr McGiffin’s condition, Dr Vivian stated as follows in his report in relation to complex regional pain syndrome:

Although he has pain out of keeping with underlying pathology, I do not consider that he has complex regional pain syndrome (CRPS). When I have seen severe CRPS with a frozen shoulder, the CRPS manifestations have been florid; any manifestations here are mild. Although I did not see him face to face, I doubt that the Budapest criteria for CRPS would be fulfilled. Also, in view of the marked non-organic right arm movement pattern, I could not rely on the subjective components of the Budapest criteria.

In his oral evidence, Dr Vivian stated that, in the case of a person who cannot move their arm because of severe pain, if complex regional pain syndrome was the major source of the pain, ‘you would see it [colour change, sweating and swelling] from 20 yards away’.

Dr Vivian concluded that, in the absence of any specific musculoskeletal findings, Mr McGiffin’s presentation was mainly due to functional overlay and his disability was mainly related to non-physical matters. In referring to ‘functional overlay’, Dr Vivian meant that Mr McGiffin’s presentation was not explicable by musculoskeletal conditions, but was in the psychiatric domain.

Dr Vivian was asked whether, having regard to his physical injuries, Mr McGiffin was capable of undertaking suitable employment. Dr Vivian said that it was obvious that, pragmatically, Mr McGiffin could not work. This assessment was based on Mr McGiffin’s presentation, not on his own views about Mr McGiffin’s capabilities; from ‘a musculoskeletal perspective’ Mr McGiffin could work. As to the ‘pragmatic’ perspective, he referred to the fact that Mr McGiffin did not move his arm at all; had severe pain rated often at 11 out of 10; was on 30mgs of Targin per day; slept poorly; and does not do anything at home. Dr Vivian assessed Mr McGiffin’s prognosis as being poor, mainly because of non-physical matters. With some reservation, he thought that the interventions proposed by Dr du Toit in 2019 might be worth one attempt, but that there was now no logical interventional treatment. Dr Vivian concluded that Mr McGiffin presented with severe disability due to chronic pain and loss of movement of his right upper limb. He continued:

The physical findings are replete with non-organic findings, making assessment of musculoskeletal dysfunction and/or injury impossible to discern. It is also unlikely that he qualifies as having CRPS according to the Budapest criteria, and even if he did, I would argue that the findings would more than likely be invalid due to the non-organic findings.

Dr Vivian observed that non-organic findings can reflect distress, factitious behaviour or other causes of functional overlay. He considered that psychiatric assessment was now more relevant than physical assessment.

On 8 October 2021, Dr Vivian returned a telephone call from Fosterville’s solicitor in which he told the solicitor that he had rarely seen a case like Mr McGiffin’s and that his first report in relation to Mr McGiffin was very difficult to write. He said that Mr McGiffin definitely had a non-organic condition, a factitious disorder or functional overlay and words to the effect that ‘the only way you are going to get him to move his arm is to catch him doing it on surveillance or to manipulate it under anaesthetic’.

Dr Vivian examined Mr McGiffin again, this time in person, on 17 November 2021. A report prepared by Dr Vivian of the same date was received into evidence.

In this second report, Dr Vivian referred to and considered various other medical reports and documents with which he had been provided. This included a report by Dr Richard Sullivan who assessed that Mr McGiffin appeared to have complex regional pain syndrome affecting his right upper limb, but that the diagnosis against the diagnostic criteria was borderline. Dr Vivian considered that Dr Sullivan was ‘splitting hairs’ about whether certain clinical signs of a complex regional pain syndrome were evident with Mr McGiffin. In his assessment, complex regional pain syndrome was part of Mr McGiffin’s condition, but it was ‘playing a minimal part in the whole picture’; the major part being psychogenic pain, or some other unidentified cause of pain.

In his second report, Dr Vivian described Mr McGiffin’s symptoms upon examination as follows:

The pain is throughout his neck, upper back and right arm. He also has occipital headaches.
He described spasms in the right arm and says that the biceps muscle contracts (this sounded to me like the biceps fasciculates). The pain is not shooting. The pain is constant and deep inside the arm rather than on the surface. The right arm is sometimes hotter to touch, and occasionally goes ice cold. He added at this appointment that the arm feels as if it is on fire. Showering is difficult as the water contact is painful; he has to have cool showers as hot water aggravates. Cold weather is a major aggravating factor. The arm pain is usually about 11/10, but occasionally it reduces to 9/10. He cannot move the right arm at all. His fingers and wrist are clawed. He can barely move his fingers. The arm does not swell. The palm can sweat.
The arm pain is contiguous with right scapular and neck pain, and he cannot turn his head and neck to the right as it gets stuck and the pain increases. The elbow has also become locked; he cannot move it as it burns and causes local muscle spasm.
…

Dr Vivian recorded in his second report that, when Mr McGiffin booked in for his examination, his elbow was close to straight and his hand was clawed and held in front of his belt. Dr Vivian noted that ‘there were no visible features of CRPS’; he did not see Mr McGiffin’s right arm as being swollen, red or sweaty, or any significant colour change. His nails also looked normal.

Dr Vivian stated in his report that, having asked Mr McGiffin if he could examine him by touch or perform some passive arm movement, Mr McGiffin ‘would not allow this and implied as he smiled that he would react with violence’. Dr Vivian then abandoned the consultation.

In his report, Dr Vivian then addressed the Budapest criteria to determine if Mr McGiffin had complex regional pain syndrome. His application of, and conclusions about, the criteria were as follows[12]:
[12]Emphasis in the original.

Domain A: Continuing pain which is disproportionate to any inciting event.
Yes.
Domain B: The patient must report at least one symptom in three of the following four categories:
·Sensory: reports of hyperaesthesia, hypoalgesia and/or allodynia.
Yes.
·Vasomotor: reports of temperature asymmetry and/or skin colour changes and/or skin colour asymmetry.
Not enough to give it a ‘yes’.
·Sudomotor/oedema: reports of oedema and/or sweating changes and/or sweating asymmetry.
No.
·Motor/trophic: reports of decreased range of motion and/or motor dysfunction (weakness, tremor, dystonia) and/or trophic changes (hair, nail, skin).
Yes; he reports spasms and fasciculations.

Domain C: The clinician must observe at least one sign at the time of evaluation in two or more of the four following categories:
·Sensory: evidence of hyperalgesia (to pin prick and/or allodynia (to light touch and/or deep somatic pressure and/or joint movement).
No.
·Vasomotor: evidence of temperature asymmetry and/or skin colour changes and/or skin colour asymmetry.
No.
·Sudomotor/oedema: evidence of oedema and/or sweating changes and/or sweating asymmetry.
No.
·Motor/trophic: evidence of decreased range of motion and/or motor dysfunction with weakness, tremor, dystonia and/or trophic changes.
No provable loss of function.

Domain D: There is no other diagnosis that better explains these signs and symptoms. I consider that there are better explanations: see below.

In his report, Dr Vivian stated that he had never seen so obvious a non-organic presentation in his 40 years of medical practice.

On the issue of wastage, Dr Vivian’s evidence was that, if an arm had not been moved for a substantial period of time, substantial wasting of the limb would be evident.

As to Mr McGiffin’s capacity to undertake suitable employment, Dr Vivian concluded that it was impossible to assess Mr McGiffin from a physical perspective, but that it was apparent from his complaints that he could not work. Other than psychiatric management, he did not consider that there was any appropriate treatment for him.

Dr Vivian prepared a third medico-legal report dated 1 December 2021 which was received into evidence. Dr Vivian was asked to consider a number of other expert reports with which he had been provided and to consider whether they led him to alter his previously expressed opinion.[13] Dr Vivian’s opinion that Mr McGiffin had a non-organic presentation and did not have complex regional pain syndrome remained unchanged. He considered that Mr McGiffin had a functional neurological disorder, and that this condition was ‘probably due to secondary rather than primary gain and therefore, it is consciously simulated’.
[13]Further reports provided to Dr Vivian included the reports prepared by Mr Kossmann, Dr Thomas, Dr Kostos, Dr Sullivan, Mr Salmon, Dr Lewis, Dr Gassin, Dr Blombery and Dr Seneviratne, to which I have referred earlier in these reasons.

Dr Vivian remained of the view that Mr McGiffin had no significant underlying musculoskeletal pathology and that the complaints of pain and his physical examination of Mr McGiffin demonstrated exaggeration. From a musculoskeletal orthopaedic and neurological perspective, he did not accept that Mr McGiffin had the restricted function in his arm which he claimed he had.

[30]Lonergan (n 28), [17]-[19].

As stated by the High Court in Todorovic v Waller, the assessment of damages for future pecuniary loss ‘can never be a mere matter of mathematics;’[31] ‘the process must always be one of judgment rather than calculation’.[32] After referring to the need to compare what a plaintiff might have earned if they had not suffered injury with what they were likely to earn in their injured condition in assessing a loss of earning capacity, Gibbs CJ and Wilson J observed that in many cases this may require the court to engage in ‘a double exercise in the art of prophesying’[33] and that damages for financial loss ‘can only be an estimate, often a very rough estimate, of the present value of his prospective loss’. [34] These observations are particularly apposite to this case where the Court is required to assess the economic loss of a plaintiff who has suffered injury early in his working life.
[31]Todorovic v Waller (1981) 150 CLR 402, 412.
[32]Ibid 413.
[33]Ibid 412, quoting Lord Diplock in Paul v Rendell (1981) 55 ALJR 371, 372.
[34]Ibid 413, quoting Lord Reid in British Transport Commission v Gourley (1956) A.C. 185, 212.

Before applying these principles in assessing Mr McGiffin’s past and future economic loss, it is first necessary to set out the facts concerning Mr McGiffin’s work history and the circumstances in which he commenced at Fosterville, and my findings about his work capacity.

Mr McGiffin’s work history and commencement at Fosterville

After completing secondary school in year 12, Mr McGiffin commenced an apprenticeship in fitting and turning which he continued for a period of about 10 months until the company to which he was apprenticed shut down. He then transferred to an apprenticeship as a motor mechanic. After injuring his hand, Mr McGiffin terminated that apprenticeship about a year later.

Following a short period working in telephone sales, Mr McGiffin then travelled to Kalgoorlie in Western Australia to work as a labourer. After working for short periods as a real estate salesman, a car salesman and a trainee assistant manager at a supermarket, he then worked for about a year as a furnace operator and furnace supervisor. This was followed by work as a driller’s labourer (an ‘offsider’) on a mobile drill rig at locations throughout Western Australia.

Mr McGiffin returned to Bendigo in March 2016 and obtained work as an offsider with another mining company, Deepcore Drilling (Deepcore). He then progressed to working as a trainee driller with Deepcore and an associated company. He worked as a trainee driller for about 12 months at various locations in Victoria and New South Wales, including at the Fosterville Mine, often on a ‘fly-in, fly-out’ basis.

After meeting Ms Tresize soon after his return to Bendigo, Mr McGiffin successfully applied to work at Fosterville. With plans to start a family, he and Ms Tresize intended that he would obtain work in the local area to move away from fly-in, fly-out work. He was one of about 15 or 20 workers from Deepcore who commenced employment with Fosterville as nippers around the same time.

Mr McGiffin’s evidence, which I accept, was that, when he commenced at Fosterville, the mine superintendent, Luke Croist, told him that, like the other workers who had come from Deepcore, he would be ‘fast-tracked’. Mr McGiffin’s understanding from other former Deepcore workers to whom he spoke was that they generally progressed to other roles, usually truck driving, after about three months working as nippers. Some progressed to ‘shotcreting’, heavier work which involved spraying concrete on the inside of the mine. Mr McGiffin identified one former Deepcore worker who started as a nipper with Fosterville and who became a shotcretor after about four months; he referred to another who became a truck driver after about six months.

Mr Sole, who commenced working for Fosterville in 2011 as an experienced chargehand and service crewman, gave evidence that the situation varied; some nippers remained working with their jumbo operator for a long time. He also gave evidence that only a small percentage of nippers, the ‘really driven ones’, progressed to working as jumbo operators. Mr Sole had commenced working as a jumbo operator seven or eight months before the incident, although he had filled-in in that role from time to time since 2015 or 2016.

Although the most common course of progression for mine workers like Mr McGiffin was from nipper to truck driver, Mr McGiffin planned to progress to work as a shotcretor by about 2019-2020. One of the former Deepcore co-workers told Mr McGiffin a few days before the incident in March 2018 that he had a ‘chance’ to progress to work as a shotcretor. Mr McGiffin was not attracted to truck driving; he regarded it as boring and wanted a more active role. Mr Sole’s evidence was that ‘some guys progress a lot quicker than others, depending on how hungry they are for it’.

Before the incident in March 2018, Mr McGiffin saw his future career in the mining industry. After progressing to work as a shotcretor, he planned to eventually become a jumbo operator and to then pursue other roles in the mining industry. He enjoyed his work for Fosterville as a nipper and loved working in the mining industry; he regarded it as a lifestyle, not just a job. Mr McGiffin’s evidence about his career plans and his enjoyment of his work was corroborated by Ms Tresize.

Capacity to work

The weight of evidence supports a finding that Mr McGiffin no longer has the capacity to perform his former, or any other, employment, and is likely to have no capacity to work into the foreseeable future. This finding is supported by the evidence of Mr Kossmann,[35] Dr Thomas,[36] Dr Suyapto,[37] Dr Kostos,[38] Dr Sullivan,[39] Dr Seneviratne[40] and Mr Holmberg,[41] as well as the evidence of Dr Blombery and Dr Gassin to which I have referred at length.[42]
[35]See [49] above.
[36]See [54] above.
[37]See [55]-[0] above.
[38]See [57] above.
[39]See [59] above.
[40]See [63] above.
[41]See [163(d)] above.
[42]See [76] and [87] above.

This finding is also supported by Dr Vivian’s evidence that, pragmatically, it was apparent from Mr McGiffin’s complaints that he could not work.[43] He regarded Mr McGiffin’s prognosis as poor, mainly because of non-physical matters.[44]
[43]See [110] and [120] above.
[44]See [110] above.

Dr Ryan also was of the view that Mr McGiffin had no capacity for work, although she thought that that incapacity was not likely to continue indefinitely.[45] That qualification, expressed in April 2020, has not been borne out by the subsequent course of Mr McGiffin’s condition.
[45]See [56] above.

Dr Lewis also considered that Mr McGiffin was completely incapacitated for his pre-injury duties on psychiatric grounds and did not consider that there was any likelihood that this would change in the foreseeable future. Although he did refer to Mr McGiffin having a capacity to undertake suitable employment, this was only from a ‘very narrow [theoretical] psychiatric perspective’ in which his physical injury was disregarded. Even on this theoretical basis, Dr Lewis considered Mr McGiffin’s work capacity to be limited to eight hours per week under highly flexible arrangements with potentially high levels of absenteeism; Mr McGiffin could not work on a consistent or reliable basis.

Although Associate Professor Mendelson was of the view that Mr McGiffin was not precluded from being involved in vocational rehabilitation or retraining programs, his view was premised on the opinion, which I have rejected, that Mr McGiffin does not have a diagnosable mental illness. More generally, because Mr McGiffin’s psychological condition is closely connected with and likely to follow the course of his underlying physical condition, the fact that there is other psychological and psychiatric evidence[46] that Mr McGiffin’s psychological condition does not of itself prevent him returning to work is of limited assistance in assessing Mr McGiffin’s overall capacity to return to work.
[46]Given by Dr Kennedy and Dr Glowinski referred to at [163] above.

The only remaining evidence which provides support for the view that Mr McGiffin has a capacity to work is the evidence given by Mr Salmon and Dr Slesenger.

As I have already outlined, Dr Slesenger considered that Mr McGiffin retained capacity, although his organic injury had left a residual impairment. In his view Mr McGiffin’s capacity to use his right arm was greater than what he was claiming. On the basis of his physical injuries only, he was of the opinion that Mr McGiffin could return to work to perform suitable alternative duties subject to certain restrictions.[47]
[47]As identified in [97] above.

I do not accept this evidence because it proceeds from Dr Slesenger’s opinion that Mr McGiffin’s capacity is greater than that which he demonstrated and described on examination, and his assessment that Mr McGiffin’s condition of complex regional pain syndrome had resolved. I was not persuaded to accept either of these propositions for the reasons I have already outlined.

However, it may be noted that Dr Slesenger’s evidence does provide support for my finding that Mr McGiffin no longer has any work capacity. He accepted that if, contrary to his view, Mr McGiffin did not have the ability to use his right arm, then it would be very difficult for him to find suitable employment because he is a right hand dominant worker.

As to Mr Salmon, an orthopaedic surgeon, his opinion that Mr McGiffin ‘should be capable of some of his previous work activities’ is of little assistance because it is based on his assessment of Mr McGiffin’s rotator cuff and biceps injury and not CRPS type 1. Further, Mr Salmon expressly ‘did not seek to comment further in relation to Mr McGiffin’s ability to carry out these activities[48] in light of other conditions which may be present and better assessed by experts in other fields’. In that regard, he noted that from other reports Mr McGiffin may have a ‘chronic pain syndrome or psychological issue ‘ and stated that he would defer to those with expertise in those areas in relation to those conditions.
[48]Physical work below shoulder height.

I will accordingly proceed to assess Mr McGiffin’s past and future economic loss on the basis that he no longer has the capacity to perform his former, or any other, employment, and is likely to have no capacity to work into the foreseeable future.

Past economic loss

Fosterville accepted that Mr McGiffin was unable to work from 29 May 2018 until the conclusion of the trial on 14 December 2021. In assessing Mr McGiffin’s economic loss in relation to that period, Fosterville submitted that, because he had only been employed for 3-4 months before the incident in March 2018, his loss should be assessed on the basis of the wages applicable to a Grade 2 nipper prescribed by the enterprise agreement which applied at the Fosterville Mine.[49] On that assumption, it was uncontroversial that the total past economic loss would be $241,335.[50]
[49]Being the Fosterville Enterprise Agreement 2015, which was in turn succeeded by the Fosterville Enterprise Agreement 2018 and then the Fosterville Enterprise Agreement 2021.
[50]Comprised of total past loss of earnings of $214,568 and total past loss of superannuation of $26,767.

Fosterville submitted in the alternative that, at the most, Mr McGiffin would have progressed to the Grade 3 nipper classification under the enterprise agreement by 1 July 2019 at the earliest. On that assumption, it was uncontroversial that Mr McGiffin’s total past economic loss for the above period would be in the amount of $251,291.[51]
[51]Comprised of total past loss of earnings of $223,248 and total past loss of superannuation of $28,043.

Senior Counsel for Mr McGiffin advanced a different analysis in relation to past economic loss. At the outset, he identified that, as at the date of injury, Mr McGiffin was earning more than the rates of pay for nippers prescribed by the relevant enterprise agreement.[52] This was a consequence of the fact that, in addition to his rostered work as a nipper,[53] Mr McGiffin sometimes worked two extra shifts as part of the ‘service crew’, work which involved servicing machinery and air vents in the mine.
[52]It was not contested that, before the incident, Mr McGiffin was paid approximately $1,713 gross/$1,282 net per week. It was uncontroversial that, according to the Fosterville Enterprise Agreement 2015, nippers were paid the following rates from 1 July 2017 to 1 July 2018: grade 1 - $1,370 gross/$1,059 net per week; grade 2 - $1,436 gross/$1,102 net per week; grade 3 - $1,534 gross/$1,166 net per week.
[53]See [6] above.

It was contended on behalf of Mr McGiffin that economic loss should be calculated on the basis that, by 1 July 2019, he would have been promoted to the role of shotcretor (grade 1), with no further promotions in the period relevant to past economic loss. On that assumption, and having regard to the rate that was actually paid to Mr McGiffin as referred to above, it was uncontroversial that Mr McGiffin’s total past economic loss would be in the amount of $304,804.[54]
[54]Comprised of total past loss of earnings of $269,814 and total past loss of superannuation of $34,990.

The alternative scenario advanced on behalf of Mr McGiffin was that, having been promoted to the position of shotcretor (grade 1) on 1 July 2019, he would have been further promoted to shotcretor grade 2 from 1 July 2021. On that assumption, it was uncontroversial that Mr McGiffin’s total past economic loss would be $309,358.[55]
[55]Comprised of total past loss of earnings of $273,747 and total past loss of superannuation of $35,611.

The scenarios for the assessment of past economic loss advanced by Fosterville - which proceed on the basis that Mr McGiffin would have continued working as a nipper from 29 May 2018 until the conclusion of the trial on 14 December 2021 - are inconsistent with his likely career progression as indicated by the evidence. Mr McGiffin‘s uncontested evidence was that, when he started with Fosterville, he was told that he would be fast-tracked and that the cohort of workers he commenced with at about the same time usually progressed from being a nipper after about 3 months. He planned to be working as a shotcretor by about 2019-2020. In light of this evidence, bearing in mind that Mr McGiffin had previous experience in mining work before he started working for Fosterville and that he was not interested in work as a truck driver, being the usual course of progression, it is unlikely that he would have remained working as a nipper for the whole of the period relating to past economic loss.

The alternative scenario advanced on behalf of Mr McGiffin referred to in [218] can also readily be disregarded. There is little in the evidence to suggest that there is a likelihood that Mr McGiffin would have been twice promoted further up the shotcretor grades from the position of nipper in the period from 29 May 2018 until the conclusion of the trial on 14 December 2021.

The first scenario posited on behalf of Mr McGiffin referred to in [217] proceeds on a most favourable assumption about when Mr McGiffin would have been able to realise his plans. His evidence was that he planned to be working as a shotcretor by about 2019-2020; this scenario assumes he would have been promoted to the role of shotcretor (grade 1) on 1 July 2019. I consider that 1 July 2020 is a more likely date. By that time, Mr McGiffin would have been employed by Fosterville as a nipper for slightly more than two and a half years.

That conclusion is supported by the evidence referred to in [219], as well as Mr Sole’s evidence that the rate of progression of mine workers depended upon their ‘hunger’ to move through the various classifications. Mr McGiffin was ‘hungry’. That conclusion is borne out by his active employment history before commencing with Fosterville, the fact that he was pursuing demanding work in the mining industry from his early 20s, and from the fact that he enjoyed the work and saw his future in the industry. As a young man with a growing family, he was keen to progress. His evidence was that the reason he sometimes worked two extra shifts as part of the service crew in addition to his rostered work as a nipper was ‘to show he was keen’. In those circumstances it is reasonable to expect that he would have progressed to being a shotcretor by about 1 July 2020.

Accordingly, and based on the calculations which were agreed, I assess Mr McGiffin’s total past economic loss as being in the amount of $295,072.[56]
[56]Comprised of total past loss of earnings of $261,390 and total past loss of superannuation of $33,682. These amounts have been determined in accordance with the calculations agreed by the parties for the periods 29 May 2018 – 30 June 2018; 1 July 2018 – 30 June 2019; 1 July 2020 – 30 June 2021 and 1 July 2021 – 14 December 2021. The total earnings for the period 1 July 2019 – 30 June 2020 was determined by increasing the gross earnings for a nipper for the previous year by 2.5%, being the increase in remuneration provided for by the Fosterville Enterprise Agreement 2018. In accordance with that calculation, the net loss of earnings and superannuation for the period 1 July 2019 – 30 June 2020 was $69,524 and $8,892 respectively.

Future economic loss
Submissions

Senior counsel for Mr McGiffin advanced three alternative scenarios for the calculation of future economic loss on the basis that Mr McGiffin has lost all capacity for employment and that his condition was permanent. Each scenario proceeded from the premise that Mr McGiffin would have worked until retirement at 67 years of age; that a discount for vicissitudes of 15% should apply; that he was 29½ years of age at trial; and that the multiplier to age 67 for a 29½ year old is 794.7. Only the last two matters were agreed.[57]
[57]The accuracy of the mathematical calculations was not in dispute.

(a) Scenario 1 assumed that Mr McGiffin would have worked until 67 years of age as a shotcretor (grade 2).[58] In this scenario, Mr McGiffin’s total future economic loss, applying a discount of 15% for vicissitudes, was $1,368,551.[59]

(b) Scenario 2 assumed that Mr McGiffin would have worked until 67 years of age at a higher classification of shotcretor (grade 3) with commensurately higher weekly earnings than scenario 1.[60] Under this scenario, and again applying a discount for vicissitudes of 15%, Mr McGiffin’s total future economic loss was $1,475,279.[61]

(c) Scenario 3 assumed that Mr McGiffin would have worked until 67 years of age at the classification of jumbo operator (grade 1), (being a higher classification than under scenario 2).[62] Applying a discount for vicissitudes of 15%, Mr McGiffin’s total future economic loss in this scenario was $1,577,279.[63]

[58]Earning $2,451 gross/$1,781 net per week, with a weekly superannuation contribution of $245.

[59]Comprised of $1,203,056 for wage and salary income and $165,495 in respect of superannuation contributions.

[60]Being $2,669 gross/$1,914 net per week, with a weekly superannuation contribution of $270.

[61]Comprised of $1,292,896 in respect of wages and salary and $182,383 in respect of superannuation contributions.

[62]Earning $2,887 gross/$2,047 net per week with a weekly superannuation contribution of $288.

[63]Comprised of $1,382,737 in respect of wages and salary and $194,542 in respect of superannuation contributions.

In addition to the proposition that Mr McGiffin has lost all capacity for employment as a result of his injuries and that his condition was permanent, senior counsel emphasised the following matters in support of the appropriateness of these scenarios for the assessment of future economic loss:

(a) That I should find that Mr McGiffin was a well-motivated person who, given his pre-injury employment, would have probably progressed through the ranks as an underground miner and, over time, to higher paid roles in the mining industry beyond the average worker.

(b) That Mr McGiffin was told that he would be ‘fast tracked’ when he commenced working at Fosterville.

(c) That 15% was an appropriate amount for vicissitudes taking into account the possibility of both negative and positive eventualities occurring.

The key submission advanced on behalf of Fosterville was that, in assessing Mr McGiffin’s loss of future earning capacity, a discount for the vicissitude of returning to work should be included. It was submitted that I should find that there was a very significant prospect that Mr McGiffin would return to work in the medium term. Further, the evidence indicated that Mr McGiffin had a good aptitude for work, was articulate and was capable of working in a range of roles. On that basis it was submitted that a total discount of 35% should be applied, including the usual discount of 15%.

Fosterville advanced three alternative scenarios for the calculation of Mr McGiffin’s future economic loss. Under each scenario it was assumed that Mr McGiffin would have worked in the classification of service crew operator (grade 2). Fosterville submitted that this was a reasonable assumption because the evidence indicated that a number of former employees Deepcore had worked as service crew and because Mr McGiffin had an aptitude for such work given that he had previously commenced apprenticeships. The scenarios, based on this classification under the enterprise agreement and an allowance of 35% for vicissitudes, varied according to the age when it was posited Mr McGiffin would have likely ceased working.

(a)Under the first scenario, it was assumed that Mr McGiffin would work until 50 years of age. On that basis, his total future economic loss was assessed as $684,059.[64]
(b)Under the second scenario, it was assumed that Mr McGiffin would work until 55 years of age. On that basis his total future economic loss was assessed as $759,240.[65]
(c)Under the third scenario, it was assumed that Mr McGiffin would work until 60 years of age. On that basis his total future economic loss was assessed as $815,348.[66]

Consideration

[64]Comprised of $603,320 for lost wages and salary and $80,739 for lost superannuation contributions. In this scenario, the multiplier used was 624.2.

[65]Comprised of $669,626 in respect of wages and salary and $89,614 in respect of superannuation. In this scenario, the multiplier used was 692.8.

[66]Comprised of $719,112 in respect of wages and salary and $96,236 in respect of superannuation. In this scenario, the multiplier used was 744.0.

As stated by the Court of Appeal in Lonergan, the identification of an injured plaintiff’s hypothetical career path if they had not suffered injury is a means of illuminating the worth of the capacity to earn income which has been lost. The controversy between the parties about Mr McGiffin’s likely career path if he had not been injured has two key features: a dispute about what occupation he would likely have pursued if he had not been injured and a dispute about the period of time he would have likely worked in that occupation.

As to occupation, Mr McGiffin had been working in the mining industry from when he was about 22 years of age for about the three years before the incident occurred in March 2018. Although still young, Mr McGiffin had previously worked in a number of different jobs after he finished secondary school. That he then worked consistently for a number of years in the mining industry, undertaking demanding labouring work as an offsider and nipper, is consistent with his evidence that he saw his future in the industry. And, as I have already found, Mr McGiffin was keen to progress that career.[67] Moreover, his consistent history of employment since leaving school, his preparedness to travel interstate to work, his willingness to undertake demanding work in the mining industry and the fact that he sometimes worked extra shifts as part of the service crew to show his keenness to progress, demonstrate that he had the drive, work ethic and capacity to actively pursue that career.
[67]See at [222]

This analysis has informed my finding that it is likely that Mr McGiffin would have progressed to work as a shotcretor (grade 1) after working for Fosterville for about two and a half years. Fosterville’s submission that, in the future, he would only have progressed to working as a member of the service crew,[68] ignores the weight of the evidence about Mr McGiffin’s work history and his plans for the future. The evidence that former employees of Deepcore worked as service crew was limited. Further, the fact that Mr McGiffin had previously commenced apprenticeships is a weak basis to suggest that he had an ‘aptitude’ to work as part of the service crew, given that he did not complete any of these courses of training.
[68]The Fosterville Enterprise Agreement 2021 contains reference to 12 occupational classifications. There was no evidence adduced about most of these classifications, save for the following classifications: ‘Jumbo Operator’ which has the highest rates of pay; ‘Shotcretor’ which is the fifth highest classification according to rates of pay; ‘Service Crew’ which is the eighth highest classification according to rates of pay; ‘Truck/Agi Operator’ which is the second lowest classification according to rates of pay; and ‘Nipper’ which has the lowest rates of pay.

The evidence upon which I have found that it was likely that Mr McGiffin would have progressed from working as a nipper to working as a shotcretor (grade 1) after about two and a half years working for Fosterville, also provides a basis for finding that, but for his injuries, Mr McGiffin would have likely continued to progress as a shotcretor into the future. I consider that some progression as a shotcretor working in the mining industry is, on the evidence before me, the most likely trajectory of Mr McGiffin’s career. Accordingly, it is reasonable to assess Mr McGiffin’s future economic loss on the basis that, if he had not suffered the injuries, he would have progressed from shotcretor (grade 1) to shotcretor (grade 2). In circumstances where there is very little evidence about the basis upon which employees progressed between grades within the same occupational classification (or between classifications), there is no sufficient evidentiary basis to find that it was likely that Mr McGiffin would have further progressed to the highest grade of shotcretor (grade 3). The scenario that he would have progressed further to the highest classification and worked as a jumbo operator is, I consider, largely speculative and not supported by the evidence.

It is next necessary to consider the period of time over which Mr McGiffin would have likely continued working if he had not been injured. Fosterville’s submissions on future economic loss were put on the basis that Mr McGiffin would have ceased work either at age 50, 55 or 60. Those propositions were without any evidentiary foundation. As the employer of a workforce engaged in underground mining, Fosterville could have readily adduced evidence of, for example, the average age of its underground mine workers, the average age of segments of its workforce (such as nippers or shotcretors) or the average length of service of its employees. Fosterville could also have led evidence about matters pertaining to labour force composition within the mining industry generally. It adduced no such evidence to support its assertion that Mr McGiffin would have likely ceased work at any of the above ages.

There is likewise no evidence pertaining to Mr McGiffin’s circumstances which might indicate that, before the incident on 2 March 2018, there was any probability that he would likely cease working before normal retirement age of 67 years. For example, it was not submitted that Mr McGiffin had a pre-existing or underlying health or medical condition, or familial circumstance, as a result of which the Court might find that he was likely to cease work at a younger age.

In the circumstances, it is appropriate to assess Mr McGiffin’s future economic loss on the basis that he would have continued working until retirement at 67 years of age in line with pension entitlements under the Social Security Act 1991 (Cth) and general community standards.

As I have earlier outlined, an assessment of an injured plaintiff’s loss of earning capacity is assisted by comparing the person’s hypothetical future earnings had they not suffered the injury and their future earnings after injury. As to the latter, I have found that, because of the wholly incapacitating nature of his injuries which are permanent and stable, the likelihood is that Mr McGiffin will have no capacity to work into the foreseeable future and therefore will likely have no future earnings.

In relation to Mr McGiffin’s hypothetical future earnings had he not suffered the injury, for the reasons I have outlined, they should be assessed by reference to his likely career path in working as a shotcretor (grade 2) until normal retirement age of 67 years. The present value lump sum of Mr McGiffin’s likely future earnings if he had followed that hypothetical career path is $1,610,062, calculated as follows:

(a) wages/salary of $2,451 gross / $1,781 net per week as shotcretor (grade 2);

(b) multiplier of 794.7 x $1,781 = $1,415,361;

(c) plus loss of superannuation contributions at $245 per week: 794.7x $245 = $194,701.

In relation to this lump sum, it is well established that a 15% discount is generally appropriate to allow for the normal vicissitudes and future contingencies of life such as sickness, accident and unemployment.[69] However, in the circumstances of this case, there are two other matters to be taken into account in addition to those ordinary vicissitudes.
[69]See Lonergan (n 28), [85].

First, the fact that the likely career path which I consider Mr McGiffin would have followed but for his injuries is one which involves demanding underground manual work. The heavy manual nature of this work means that some greater allowance beyond the norm should be given for the possibility that Mr McGiffin may not have continued upon that path because of, for example, injury or fatigue.

Secondly, the assessment of Mr McGiffin’s loss of income earning capacity on the basis that he would have likely continued working until normal retirement age of 67 years means that the Court is estimating Mr McGiffin’s future earnings over a period of about 37 years. Hypothesising about an individual’s earning capacity over such a lengthy period is a daunting and uncertain task for the very reason that the effluxion of time tends to expand the scope of contingencies and vicissitudes which might affect the course of a person’s working life, both in type and number. Prognosticating about the course of a 29 year old’s career over such a long period of time based on an employment history of only seven years requires I consider some additional allowance beyond a discount of 15% for the ‘ordinary’ vicissitudes of life.

In light of these matters, I consider that it is appropriate to apply a discount of 25%, rather than 15%, in assessing Mr McGiffin’s future economic loss.

In adopting this approach, contrary to Fosterville’s submission, I will not include a discount for the vicissitude of Mr McGiffin returning to work. That approach, which rested on the proposition that there was a very significant prospect that Mr McGiffin would return to work in the medium term, would involve me assessing damages on a basis which was inconsistent with my finding that Mr McGiffin’s condition is permanent and stabilised and unlikely to change in the foreseeable future. Fosterville’s submission that I should apply a discount of 35% for this reason rested upon the evidence given by Dr Vivian that Mr McGiffin can work and Dr Slesenger’s evidence that he is fit for lighter work. I have not accepted that evidence for the reasons set out earlier in these reasons.

Fosterville’s submission is also premised upon an acceptance of Associate Professor Mendelson’s evidence that, after finalisation of the litigation and with appropriate physiotherapy, Mr McGiffin’s complaints will resolve. Associate Professor Mendelson is a psychiatrist and, notwithstanding his experience in dealing with pain management, his opinion about Mr McGiffin’s physical injury is of limited weight. For the reasons I have set out earlier, I have accepted and prefer the evidence of Dr Blombery and Dr Gassin that Mr McGiffin has CRPS type 1 and that his condition is permanent. The evidence does not support a finding that there is any prospect or likelihood that Mr McGiffin will be capable of returning to work

Applying a discount of 25% to the present value lump sum of Mr McGiffin’s likely future earnings if he had followed the career path which I have earlier identified,[70] I assess Mr McGiffin’s future economic loss as being in the amount of $1,207,546.
[70]As set out in [236] above.

Conclusion

Mr McGiffin has suffered physical and psychiatric injuries as a consequence of Fosterville’s breach of the duty of care it owed to him as an employee. The injuries sustained by Mr McGiffin have had very significant adverse effects on his life; those effects will likely continue for the rest of his life.

I assess Mr McGiffin’s damages in the following sums:

(a) Pain and suffering —

$450,000

(b) Past loss of earnings —

$295,072

(c) Future loss of earnings —

$1,207,546

Total —

$1,952,618

Counsel are invited to submit a minute of proposed orders to reflect these reasons for judgment. In the absence of agreement, counsel will be heard on costs.

---

(a) Pain and suffering —	$450,000
(b) Past loss of earnings —	$295,072
(c) Future loss of earnings —	$1,207,546
Total —	$1,952,618

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4 November 2022