McKenzie v Victorian WorkCover Authority
[2013] VCC 1183
•12 September 2013 (Melbourne)
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-04226
| JASON McKENZIE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 2-3 September 2013 | |
DATE OF JUDGMENT: | 12 September 2013 (Melbourne) | |
CASE MAY BE CITED AS: | McKenzie v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1183 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right arm – credit - pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted to bring proceedings for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird with Mr I Fehring | Stringer Clark |
| For the Defendant | Mr P Elliott QC with Mr J Batten | Lander & Rogers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Breeders Choice (“the employer”) on 15 November 2006 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the right arm.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
6 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
7 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities.
9 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.
10 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
12 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
The Plaintiff’s Evidence
13 The plaintiff is presently aged twenty-five, having been born in March 1988.
14 After reaching Year 10 at Cobden Technical School, the plaintiff worked for a short period in a plumbing business. He then worked for six months for his uncle at the employer at its Colac factory, which processed food shavings for the equine industry. After six months doing concreting work, the plaintiff returned to work with the employer in 2005.
15 On the said date, the plaintiff was working at the employer’s premises when his right arm became caught in a packing machine he was operating (“the incident”). The machine, which did not have a guard, caught the plaintiff’s arm with considerable force.
16 Having attended the local hospital, the plaintiff went on to Geelong Hospital, where he had surgery on his right arm. After discharge, he also attended Corangamite Clinic. He later underwent physiotherapy and hand therapy for about six months after the incident.
17 When he swore his first affidavit in May 2012, the plaintiff had not had any treatment from doctors or a physiotherapist for a considerable time, although he was taking Panadol or similar medication when his arm played up.
18 If the plaintiff bumped his arm at work, it became quite painful and he would then take Panadol, otherwise he just put up with the pain and restrictions in his arm.
19 Following the incident, the plaintiff was off work for a couple of months and then did office work with the employer for about three or four months and increased to full time. He then did production work again for about six months before he left to work at the National Foods factory in Simpson as a labourer. That job was casual and he worked whatever hours were available. It was a better paid job than working with the employer.
20 In October 2009, the plaintiff started work at Colac Abattoir (“the abattoir”), earning about $830 net per week, although his wages could vary if he did overtime.
21 From September 2011, the abattoir provided services for the Australian Lamb Company dealing with larger lambs that weighed, on average, 27 kilograms. The plaintiff then struggled to get through an 8-hour day. His right dominant arm was sore and painful at the end of the day and he certainly tried to do lighter work, such as trimming, if he could get it. That was not always possible and if he had a heavy day, his arm would play up and it affected his sleep and he had to take Panadol.
22 Before the incident, the plaintiff used to play in a cricket competition but gave up playing because he could not bat or bowl because of restrictions in his right arm.
23 The plaintiff also played senior level football before the accident with Colac Imperials and after the injury had settled down, he did try and played a couple of games with Simpson Football Club Reserves and four games with Alvie Reserves in 2011. However, playing football was too strenuous and painful on his arm and he did not play anymore. He will not be playing again because it affects his arm too much. If he was unlucky, he would not be able to work because of an arm injury he got at football because it was too risky.
24 As of May 2012, the plaintiff’s right arm was significantly weaker because of the incident and he had lost a lot of muscle bulk and strength. He could drive all right but if he did so for a long time his arm became painful.
25 The plaintiff used to go both surf and boat fishing once or twice a week before the incident and at best would have been fishing perhaps every two to three weeks in a boat. He could not do surf fishing because of the weakness and difficulties in his right arm. He cannot get the distance to throw the line out using two hands to cast the surf rod.
26 In evidence-in-chief, the plaintiff confirmed he previously enjoyed fishing a lot with his brother. When he lived in Simpson, in summer or winter, when they had a free night off they would drive to the beach and surf fish, sometimes until the early hours of the morning.[3] The plaintiff could not do that now because he needs to use a 12 to 14-foot rod, which requires casting with both hands.
[3]Transcript (“T”) 14
27 The plaintiff deposed he could not expose his arm to sunlight because it was sensitive and he had to wear long sleeved shirts, both at work or if he went out fishing or in the sun. The plaintiff was also quite self conscious of his arm and the loss of strength and obvious damage to the arm which was caused in the incident.
28 As of May 2102, the plaintiff was in a relationship and had a seven-month old baby boy, Lewis. The plaintiff had another son, aged five, who lived with his mother and he did not have a lot of contact with them.
29 The plaintiff could not wash Lewis or pick him up other than just to hold him because of the problem with his right arm. One of the consequences of the injury was that the plaintiff had very significant restricted use of his right thumb and it was awkward and caught a lot and did not have any real strength. That made holding things difficult and he therefore did not do as much with the new baby because he was concerned about dropping him.
30 The plaintiff has family responsibilities and does not want to give up his job because it is well paid and he values the friendships he has made.
31 In cross-examination, the plaintiff agreed his children keep him busy. They have been waking up at night and causing him sleepless nights, as babies do.[4]
[4]T28
32 In his second affidavit sworn 10 May 2013, the plaintiff described how he continues to work at the abattoir, processing lamb carcasses which had been split up and come along a conveyor belt. The pieces of meat weigh between 5 or 6 kilograms and up to 10 kilograms. He slides the meat off the conveyor onto a table, takes out the bone and trims and then puts it back on the conveyor.
33 There is no significant lifting, although the work is busy. Over the course of a day, the plaintiff has pain in his right arm and hand and by the end of the shift it can become quite painful, as it also does towards the end of the week. When he gets home, the plaintiff usually has to just sit down and rest and give his arm some time to recuperate.
34 The plaintiff had been able to continue his work at the abattoir because he was careful. If he had a heavy day, his arm would become painful and sore and could affect him for some time.
35 In cross-examination, the plaintiff described working as a permanent casual for 40 hours a week doing the universal shift – 5.30am to 2.30pm five days a week. He does not do overtime or work on the weekend.
36 The work process at the abattoir involved handling pieces of lamb legs and shoulders weighing between 5 to 6 and 10 kilograms. There was no significant lifting although the work was busy. The plaintiff did boning with his own knife, having been trained at the abattoir. He agreed he had to be skilful to do the job and he had to be very careful handling the knife and pretty quick to keep the conveyor belt going.[5]
[5]T33
37 The plaintiff did not handle large carcasses; he did the shoulder and the leg, which came to him along the conveyor belt. He stood behind a table which was connected to the conveyor belt so he just reached out and slid the meat onto the table.[6] It took him about 40 seconds to bone a leg. It was pretty quick and repetitive work. The plaintiff did not have any idea how many legs he would actually bone and explained he worked on 2-hour rotations.[7]
[6]T34
[7]T45
38 The plaintiff agreed he told Mr Buntine he could do his old job with the employer and that he was not troubled by insecurity of grip when boning carcasses at the abattoir.
39 In re-examination, the plaintiff said he could very easily slide the meat backwards and forwards off the conveyor onto the belt.
40 The plaintiff confirmed there were times he had been taken off the line for a week at a time. That has happened about two or three times a year. He gets rotated every day as there is an ergonomic policy at the abattoir and he goes off and does other duties. The pace of his work varies between cuts and carcasses.[8]
[8]T47
41 At the end of the working day, the plaintiff sits down and relaxes because his arm is quite sore. He does maintenance and housework on the weekdays/weekends. He manages to get through the day when he gets home and “looks at his family”.[9]
[9]T46
42 The plaintiff went back and saw Mr Brown late last year and had an MRI scan and x-rays because he thought his problems were getting worse.
43 For some time now, the plaintiff has been getting the shakes, which come on in his right hand and are uncontrollable and last for 2 to 3 minutes. If that happens, he just cannot do anything and has to stop working, or if he is away from work he just has to wait for the shakes to finish.
44 The plaintiff is very concerned about the trembling which he now gets in his hand. The doctors have not been able to explain it and if it gets worse he would not be able to start work. However, at this stage, it only lasts for a few minutes, but it is happening at least two to three times a week.
45 The right hand is painful all the time and it aches, and over the course of a day the pain can become much worse but the plaintiff just puts up with it.
46 The plaintiff’s sleep is certainly affected and if he has a particularly heavy day he wakes at night and will not be able to get to sleep, probably about two or three times a week.
47 The plaintiff takes Panadol at least three to four times a week but tries to avoid taking heavy medication. He has been back to Corangamite Clinic to discuss the hand problem, and a referral to Mr Brown has been arranged.
48 The plaintiff deposed in May 2013 that he has not gone back to either cricket or football and does not believe he could, given the limitations in his hand and arm.
49 In examination-in-chief, the plaintiff described his football career in much more detail.
50 When the plaintiff was at school he was captain of the firsts in Year 10, having first played in that side in Year 7. After school he played for Simpson. He was selected in a school boys’ country districts representative team and he had a game with Geelong Falcons.[10]
[10]T10
51 When the plaintiff played in the school boys’ representative side, Bryson Hodge picked him out of the squad and took him to meet a few people at Geelong Falcons.
52 The plaintiff confirmed that after the incident, he played for three or four seasons. He had 2007 off because of his injury and in 2008, he played for Simpson but he did not and could not train. He played about six to eight games that year at the reserve level.[11]
[11]T10
53 Before the incident, the plaintiff played in the firsts at Simpson.
54 In 2009, the plaintiff played about eight games for Winchelsea. He stopped playing because he was targeted because he wore a guard on his arm. The games were just a bit more physical and the league was a lot stronger than he was used to playing in. He was paid $350 a game.
55 The plaintiff played the first eight or nine games and stopped because he was not sure if he wanted to play again.[12]
[12]T11
56 The next year, the plaintiff played a full season for Colac Reserves as he had moved to the area with his partner and it was a good way to meet new people. Winchelsea was a higher standard of football and a lot quicker and stronger than the Colac Imperials where the plaintiff was playing with considerably older men.[13] He could not really compare Colac to Winchelsea, where they took their game a lot more seriously, whereas at Colac Reserves it was more laid back and enjoying the football.
[13]T12
57 Compared to the people he was playing against, the plaintiff was one of the better players and he was much younger than his opponents.[14]
[14]T12
58 The plaintiff agreed the next year he played about six to eight reserve games for Alvie, a team in the same league as Simpson and Colac.
59 The plaintiff confirmed that in 2011, he had his appendix out and played football the following week. He also hurt his ankle and missed two weeks of football.
60 The plaintiff stopped playing football altogether, as with his work and family commitments, his arm was getting too sore, so he had to choose whether to play football for fun or use his energy better in another way.[15]
[15]T13
61 On a Sunday after a game, the plaintiff was very sore. It was hard to do anything, from making a cup of tea to buttering bread. He would still be playing today if it was not for his injury. Football was probably about 80 per cent of his life.[16]
[16]T13
62 In cross-examination, the plaintiff agreed his first affidavit, describing a few games with Simpson and four games with Alvie reserves, did not give the full picture of his football after the incident. The plaintiff agreed he did not mention in either affidavit that he was paid to play for Winchelsea.[17]
[17]T16
63 The plaintiff agreed that it was incorrect when he told Mr O’Brien in April 2011 that a year after the incident he returned to football but only managed two games, as knocks to his forearm caused severe pain which forced him to stop and he had not returned since.[18]
[18]T17
64 The plaintiff was also asked about the history given by him to Mr Buntine on 12 April 2011 that he had experienced sufficient difficulty handling the ball playing football but he gave up playing until this year when he tried again. The plaintiff also told Mr Buntine that he had not decided yet whether he will resume playing football. The plaintiff agreed it was not correct to say he had not decided whether to resume or not because he had actually played three days before.
65 The plaintiff did not really respond to the suggestion that he had totally misled doctors. The plaintiff agreed it was not true that he had given up football until he tried again in 2011. When asked why the affidavits made no mention of the things said in the witness box, the plaintiff said he was under the belief he thought it was there.[19] He thought he had mentioned the details to his solicitor but he should have taken more time in reading the affidavits when he first signed them.
[19]T18
66 When it was put to the plaintiff that he had given doctors incorrect histories, he said he was undecided about playing and then agreed that essentially what he told Mr Buntine and Mr O’Brien was wrong.[20] When it was put to him he had done that deliberately, he said he was not aware he was misleading anyone.[21]
[20]T19
[21]T19
67 When asked why he did not mention he was paid at Winchelsea, the plaintiff said he was not a person who liked to brag about his accomplishments in football. He thought, in this day and age with local football, it is not an uncommon thing that country league players are paid. He agreed they only paid the good ones.[22] The plaintiff agreed he was pretty good in his junior career and was good enough to be chosen for Winchelsea and play with a cover on his arm.
[22]T19
68 The plaintiff agreed he did not suffer an injury to his arm in the years he played after the incident. He played as a rover for Winchelsea. He then agreed that before Winchelsea he played at Colac Imperials.
69 Having been told records indicated he played six senior and eleven reserve games for Colac Imperials in 2009, the same year he was playing for Winchelsea, the plaintiff was not sure if that was the case. He must have his dates confused and maybe he played at Winchelsea the year before in 2008.[23]
[23]T45
70 The plaintiff believed the first time he played after the incident was at Simpson, so that must have been at the end of 2007 when he played a few games in the reserves.[24]
[24]T22
71 The plaintiff went to Winchelsea, as his best friend coached the team and the plaintiff was selected straight off into the seniors. He agreed he played ten games for Colac Imperials Reserves in 2011.[25]
[25]T23
72 The plaintiff might have played one game for Winchelsea when he was not paid. He was not dropped. At the stage the plaintiff stopped playing for Winchelsea, he told the coach that he could not continue playing with his arm and he was offered games on alternate weeks. He believed that at the end of that year he was then phoned and asked to play one reserves game and he went and helped out.[26]
[26]T26
73 The plaintiff went to Colac Imperials the next year because he had previously played there in the year before he broke his arm. He agreed he had played ten reserve games with Alvie in 2011, wearing a guard on his arm. He left Colac to play at Alvie because his work colleagues played there.
74 The plaintiff agreed at the end of the 2011 football season he had the responsibilities of a newborn child and was working 40 hours a week. He agreed the added responsibilities meant he had to make a choice between playing football and working for his family.[27]
[27]T28
75 The plaintiff only had one game with the Falcons because he did not fit in.[28] He did not fit in with “their morals” and the way they went about things, he did not like it – they were more city kids and he was country, even at Geelong.[29]
[28]T40
[29]T40
76 In re-examination, the plaintiff said he was first asked in full detail yesterday about his football. When he was being paid to play at Winchelsea he was working at National Foods earning $800 to $1,000 a week. He was not buying a house and the money helped him with travel expenses.[30]
[30]T43
77 The plaintiff gave further details about how he was targeted at Winchelsea after it had been written up in the local paper that he was crossing from Simpson – blokes would come up and sort of try and bully him and give a few whacks in the chest and kicks in the legs.[31] When he started playing there he wore long sleeves.
[31]T43
78 Football at Alvie was a friendly game between two clubs of just middle-aged men playing for fun.[32] The plaintiff’s partner used to go and watch him play football, as did his parents. It was a social outing. Football was the centre of the plaintiff’s social life.[33]
[32]T43
[33]T44
79 In further cross-examination, the plaintiff agreed that in 2007, he could have played fifteen games for Simpson, five senior and eleven reserves.
80 The plaintiff also could have played thirteen games for Winchelsea in 2008: ten in the seniors and three in the reserves. The plaintiff agreed that at Colac in 2006 before the incident, he had three games in the seniors and fourteen in the reserves.[34] He explained they stockpiled their reserves that year for a grand final. He agreed he played the majority of the 2006 season.
[34]T45
81 In examination-in-chief, the plaintiff described how the cricket season had just started when he was injured and he had played the weekend before the incident. He has played probably three times since. His pre-injury cricket was a very low standard and it was more social cricket – he was more a footballer than a cricketer.[35]
[35]T14
82 At Simpson there were a lot of local sporting activities and tradesmen’s nights to get funding for the football club. The plaintiff played tennis and golf at these revenue raisers and he went ten-pin bowling. He would not be able to do ten-pin bowling now because of the weight of the ball. He has not tried to play tennis. He has played golf twice since the incident but he could not actually get the whole swinging action because it was very painful in the way he had to hold the club.[36]
[36]T15
83 Prior to the incident, the plaintiff enjoyed going fishing roughly weekly to fortnightly depending on the weather. On occasions, he went out with his father-in-law to be in his boat. The plaintiff still does so on occasions but does less fishing and just enjoys the trip and the company.[37]
[37]T29
84 In cross-examination, the plaintiff confirmed he goes fishing with his father-in-law in his 6.5-metre boat at Apollo Bay. Where they go depends on the weather. The plaintiff does not cast on the boat; he just puts the rod over the side. He would use his right hand if he was casting to reel in or wind up and he would be casting with his left.[38]
[38]T29
85 Gardening is restricted, and if the plaintiff has to do any particularly heavy lifting, his right hand is not strong enough and he does not believe he could lift more than 5 to 6 kilograms, certainly on a regular basis, or otherwise his hand would get a lot worse.
86 In cross-examination, the plaintiff agreed he did some work around the house and garden. Three or four months ago he did some home maintenance building perspex around the already existing pergola structure. The plaintiff does things at home like mowing the lawns and general upkeep.[39]
[39]T31
87 The plaintiff was then shown the surveillance film.
88 The plaintiff agreed he was shown in the first film mowing the lawn and using the Whipper Snipper and he had lifted the grass catcher with his right hand. He was then shown briefly outside Safeway supermarket carrying his small child in his left arm. At another stage, he was shown carrying a box of beer a short distance and putting it in his car.
89 In re-examination, the plaintiff agreed that he was shown using his left hand to push the mower back up the hill because it was less strenuous than using his right.[40] He took most of the weight using the Whipper Snipper in his left hand. He carried his baby in his left arm, the way he normally does.
[40]T44
90 In April 2013, the plaintiff was shown at Safeway purchasing a packet of cigarettes and wearing a short-sleeved shirt. He agreed he can go to the supermarket wearing short sleeves where there are lots of people and chat to them.
91 In the third film, the plaintiff agreed he was shown going to a laundromat, taking the washing in and out and having a smoke outside, waiting for his washing to dry.[41]
[41]T30
92 The plaintiff agreed that the videos were a snapshot of him going about his life doing some gardening, shopping, looking after his child and doing his washing.[42]
[42]T39
93 The plaintiff agreed he assisted his partner when he came home from work. He went to social occasions with the family and had a circle of friends at the abattoir with whom he socialised. He has never really been a man to go to the pub. He has been to Weipa for one holiday since the incident. He does not do things like camping and caravanning.
94 The plaintiff continues to wear long sleeved shirts often because he is conscious of his arm and does not want it exposed to sunlight and people talking to him about his obvious problem. He has certainly lost strength in his arm and it is painful all the time and the aching can get very wearing on his nerves.
95 In cross-examination, the plaintiff confirmed that he cannot expose his arm to the sunlight because it is sensitive and he has to wear long sleeved shirts. If he goes out in the sun he wears long sleeves.[43] He agreed he was self-conscious of the arm and the loss of strength. He can pick up his baby but he is concerned about dropping him.
[43]T32
96 In re-examination, the plaintiff was taken to his comment to Mr Buntine that he had “learned to deal with it”. When asked how he felt whilst sitting in the witness box, the plaintiff said his arm “just always got the same effect on [him].” He has learnt to live with what it is. “It is just painful, but not significant pain”.[44]
[44]T42
97 The plaintiff’s main interests before the incident were football, friends and fishing. The plaintiff confirmed he had never lived in the City and he was country bred. He passed Year 10 but would not say he was an honours student.[45]
[45]T42
Lay evidence
98 Mr Trevor Schiller, father of the plaintiff’s partner, Coady, swore an affidavit on 13 August 2013.
99 Mr Schiller is the general manager of operations at CRF Colac, the abattoir, which means he is also the plaintiff’s boss.
100 Mr Schiller is aware of the plaintiff’s injury, having become aware of it in the circumstances in which he was injured shortly after he started going out with Coady.
101 Mr Schiller regularly sees the plaintiff working and it is common to see him struggle with hands-on knife work. When he is really struggling to cope and keep up with the pace of the work, the managers on the floor rotate him to an easier job and give him a rest. It is not uncommon to see him rotated. Mr Schiller notices the plaintiff holds his knife in a different way to most people, with his thumb not closed completely over the knife handle.
102 On numerous occasions whilst working he has seen the plaintiff pause and wince in pain. It is known amongst the managers and workers that the plaintiff has a significant injury and restriction so the managers keep an eye on him, making sure he is rotated and rested when required. Mr Schiller recalls that the plaintiff has been taken off knife work for as long as a week when he has been struggling.
103 Mr Schiller and the plaintiff sometimes go out fishing together on Mr Schiller’s boat. He estimates they may go up to once a month during the fishing season, Spring to early Autumn, generally fishing for flathead, snapper and whiting.
104 The plaintiff now avoids pulling up the anchor which must be pulled up by hand. Mr Schiller can only recall the plaintiff doing it once and he managed to get the anchor up but struggled gripping the rope and heaving it onboard. The plaintiff clearly looked in pain and was swearing. Now, when the anchor needs to be raised, it is up to Mr Schiller or whoever else is there.
105 Mr Schiller also observes the plaintiff seems to do very little fishing and it is common for him to put his rod away after a short time and just sit and watch the others. He has seen the plaintiff struggle to wind fish in using his right hand and on occasions he has taken over the winding for him. It is common for the plaintiff to knock back an offer to come fishing with him.
106 Mr Schiller observes the plaintiff is restricted in completing tasks around the house. For example, about four to five months ago, they needed to remove a tree stump from his front yard. This required using a shovel to dig around the stump and after a relatively short period of time he observed the plaintiff rub his right hand and shake it. The plaintiff then seemed to concede the task was too painful for him and asked him to dig instead.
107 Similarly, about three to four months ago, he helped the plaintiff put some perspex on a pergola wall at his place and observed him have great difficulty holding a hammer in his right hand and looking awkward and uncomfortable doing so.
108 The plaintiff’s partner, Coady Schiller, swore an affidavit on 13 August 2013. She and the plaintiff had been together for about four and half years and living together for three years. They have two children, twenty three months and three and a half months.
109 Ms Schiller has observed, as a consequence of his injury, the plaintiff is significantly restricted.
110 The plaintiff is a good provider for their family; however, when he gets home from a day’s work it is common to see his hand and thumb is very swollen. Typically, the plaintiff will sit and rest and will not do much around the house. He avoids duties with the small children and doing general cleaning around the house.
111 The plaintiff’s job seems to be very tough on him. Ms Schiller’s father is his boss and he and the plaintiff report how the plaintiff struggles at work. She has observed the plaintiff have time off work because of his injury and is aware of his goal to work in a management role which does not require the use of his hand.
112 The plaintiff goes fishing with her father every now and then and she sometimes joins them. She observes it is common for the plaintiff to stop fishing after a while. He puts his rod away. Sometimes he has difficulty reeling in the fish. On more than one occasion, when his hand has been swollen and sore, she has had to cut up the plaintiff’s food for him.
113 It is common for the plaintiff to wake up during the night and he usually wakes her up. When he wakes up, the plaintiff tells her he has pain in his hand. Typically he will get up and go to the kitchen and take painkillers, and he sometimes takes tablets from the bedside table.
114 Ms Schiller observes the plaintiff appears to be really self conscious about his injury and he will usually wear a long sleeved shirt and then put a T-shirt or jumper over the top of that when going out in public. He avoids exposing his scar. Ms Schiller recalls the plaintiff used to play football but when he used to play football he wore a plastic cast on his arm.
115 When the plaintiff is bathing their children he seems to struggle and rarely bathes the baby. The plaintiff appears extremely concerned he is going to drop one of the kids and appears overly cautious. She notices he uses his non-injured arm and hand as much as possible when picking up the children. She has observed the plaintiff’s hand and arm does not seem to be getting any better. In fact, she observes the opposite to be true.
Treaters
116 The plaintiff attended Geelong Hospital on 15 November 2006, having initially been seen that day in Colac.
117 It was reported that the plaintiff sustained a crush injury of his right forearm and was found to have an open fracture of the distal third of the right ulna. The initial operation was an open reduction of the fractured ulna. The next day, 16 November 2006, the plaintiff underwent a flexor compartment fasciotomy of the right forearm to relieve the compartment syndrome that had developed overnight. The ulnar wound was further debrided and damage to two extensor tendons was noted.
118 On 19 November 2006, further debridement of the right forearm wound was carried out and delayed primary closure of the wound was performed and a split skin graft applied to cover tissue deficit.
119 Mr Graeme Campbell Brown, orthopaedic surgeon in Geelong, first saw the plaintiff on 15 November 2006 following the crushing injury at work.
120 Following treatment in Outpatients, the plaintiff was next seen by Mr Brown on 28 September 2012, about six years after the injury. The plaintiff stated he had pain in his forearm for about six months and this was in the back of his arm but also in his wrist involving his thumb. It was worse with repetitive wrist movement and lifting. He also had pain with gripping and complained of a lump on the back of his wrist.
121 The plaintiff told Mr Brown he had stopped playing football and cricket because of his arm.
122 There was scarring from the injury. There was atrophy generalised to the distal forearm muscles of the arm. There was reduced supination when the forearm was examined. There was full range of wrist movement when compared to the left, but it was irritable.
123 The x-rays showed a well united forearm fracture and the bone scan was normal.
124 The plaintiff was then referred for an x-ray of his wrist and thumb and also an MRI scan of the right wrist. He was also referred to Professor Page for an opinion and ongoing management of his wrist pain. None of this had happened when Mr Brown reported in April 2013.
125 Mr Brown thought the diagnosis was an open fracture of the right ulna with plastic deformation of the ulna, following which there was development of a compartment syndrome.
126 Mr Brown noted that when the plaintiff saw him he was working as a butcher, therefore he did not believe the plaintiff’s physical injuries made him unfit for pre-injury duties. As a consequence of his physical injury and impairment, he believed the plaintiff was still able to work as a butcher and that could be done full time.
127 Mr Brown noted the plaintiff told him he was unable to play football and cricket so his injury affected his recreational activities for the foreseeable future.
128 Mr Brown noted the further imaging and a surgical opinion from a wrist specialist suggested by him in September 2012 unfortunately did not appear to have occurred.
129 Mr Brown thought the prognosis for the injuries was that the plaintiff would have ongoing weakness of his arm and that prognosis was, to some extent, dependant on if any pathology was found in his wrist with further investigations.
130 Dr Brownstein, from Corangamite Clinic, reported in May 2011, including notes from the clinic’s records.
131 The plaintiff attended on 15 November 2006 with an injury to the forearm at work. The next attendance noted was on 14 January 2010, when the plaintiff complained of a painful right forearm and x-rays were ordered. There was a further attendance the following day. X-rays showed the screw was okay and the plaintiff was commenced on Celebrex.
132 Dr Rajcoomar from the same clinic reported in September 2012 that the plaintiff had suffered a fracture of both bones in the right forearm in the incident.
133 The plaintiff presented on 13 March 2012 with right thumb pain. His pain progressively got worse and now he had weakness, as well as loss of sensation in the median nerve territory. Dr Rajcoomar therefore decided to refer the plaintiff to an orthopaedic surgeon.
134 Dr Rajcoomar had treated the plaintiff’s symptoms and had to order investigations to confirm his diagnosis. He believed that the workplace injury was the direct result of the current/outcome prognosis of the plaintiff.
Medico-legal evidence
135 Mr John Buntine, plastic and hand surgeon, first examined the plaintiff in April 2011.
136 The plaintiff told him of pain only after knocking his right forearm or using his right hand continuously. There was also a slightly unpleasant sensation affecting the greater part of the skin of the right forearm.
137 The plaintiff advised he was embarrassed by the obvious constriction of the lower part of his right forearm and by the appearance of the partly depressed patch of split skin graft on the mid volar aspect of his forearm. He talked about wearing long sleeved shirts and people making jokes about his arm, but he had become somewhat more relaxed about it lately.
138 The plaintiff also advised his inability to extend his thumb caused annoyance when he grabbed things with his right hand. He had experienced sufficient difficulty handling the ball playing football that he gave up playing until this year when he tried again. The plaintiff added that he had not decided yet whether or not he will resume playing football.
139 The plaintiff said his right grip is not anything like as strong as it used to be. He would not be significantly affected if he was still working for the employer and he did not have problems with his grip boning at the abattoir.
140 The plaintiff did not notice any abnormality doing tasks at home adding –“I have learnt to deal with it”.
141 Mr Buntine thought the plaintiff had suffered disruption of the tendon and the extensor pollicis longus in the right forearm and so was unable to actively extend the interphalangeal joint of his right thumb and had limited extension of the thumb’s metacarpophalangeal joint (the extensor pollicis brevis may also have been partly disrupted).
142 Mr Buntine noted the distal part of the right forearm was obviously thin and scarred and there was a conspicuously, partly depressed, stable patch of split skin graft on the upper part of the forearm. He noted a cosmetic deformity of moderate severity resulted from the above and grip, with the dominant right hand had been weakened, although it was still moderately strong.
143 Mr Buntine thought the hand and forearm would be expected to remain unchanged for a number of years, although the plaintiff’s right thumb might slowly drop further into flexion because of stretching of the scar tissue and then a tendon transfer would be appropriate to restore extension of the thumb. Such surgery should be delayed and he therefore believed it would be appropriate to set aside funds for a possible tendon transfer.
144 Mr Buntine also noted, because of the extent of the injury to the forearm, the plaintiff may need to stop work which is physically demanding on his right hand and arm earlier than otherwise would have been the case. Mr Buntine noted an influence on social activities, in that the plaintiff prefers to wear a long sleeved shirt.
145 Mr Buntine thought the prognosis was for minimal change in the immediate future, although the plaintiff’s right thumb may drop further into flexion.
146 There was no hint of any exaggeration of complaint. Actually, Mr Buntine thought the plaintiff tended to understate the problems he experienced due to the incident.
147 The plaintiff was re-examined by Mr Buntine in May 2013.
148 The plaintiff told him that over the previous eight months he had been troubled by shaking of his right hand. The plaintiff had attended his general practitioner about the shaking, but Dr Rajcoomar had no idea what caused it, so he asked his partner, Dr Brown, who had a similar view, and they proposed to refer the plaintiff to an upper limb specialist.
149 A regional bone scan of the right forearm and wrist was carried out on 18 May 2012. It was reported there was probably only reactive bone changes in the ulna at the site of internal fixation. ? small bone island showing activity in the triquetrum. (Bone islands are generally inactive but may be active from time to time). There were no features of osteomyelitis.
150 Mr Buntine noted the bone scan showed only the expected changes and did not explain a cause for the plaintiff’s complaint of increasing wrist pain.
151 The plaintiff advised that as a result of conciliation in February 2013, he understood the insurer could not refuse to pay for specialist consultations relating to his right arm, and that he, himself, therefore paid for further x-ray and MRI scan. He did not know the end results of those investigations but that he had two CDs at home relating to the study. He did not realise it would have been appropriate to bring them for his examination but he then left them at the surgery on 21 May 2013.
152 The plaintiff advised he still does not want to have a tendon graft to improve extension of his right thumb, nor to have the plate and screws removed from the thumb because he does not want to take time off work and because he does not want more scarring on the dorsum of his right hand and forearm.
153 The plaintiff told Mr Buntine he would have an operation if his right thumb assumed a more flexed position due to stretching of the adhesions to the distal segment of the thumbs apparently divided extensor tendons.
154 Mr Buntine believed the plaintiff’s injury’s prognosis, progress and condition on 29 March 2011 were well described by Mr John O’Brien in his report of April 2011. He agreed with Mr O’Brien’s comments that conservative treatment would have no effect on the plaintiff’s physical findings.
155 The plaintiff advised his right arm pain had not changed much but he was putting up with it better and not taking quite as much Panadol, now taking seldom more than two a week.
156 The plaintiff did not describe any impairment of sensation in the distribution of his right median nerve, although Dr Rajcoomar had reported that on examination in March 2012. The plaintiff described to Mr Buntine only some lessening of sensation over the distal ulnar border of his right forearm and the proximal part of the ulnar border of his right hand.
157 The plaintiff said he had not recently been troubled by people making remarks about the appearance of his forearm as he kept it better hidden. There had been no change in the ability to actively extend the right thumb or the weakness of right grip.
158 As Mr Buntine had no doubt the shaking of the right hand was a manifestation of an abnormal psychological state, he asked the plaintiff if he was troubled by mental depression, to which the plaintiff replied it was not something he wanted to talk about. Further discussion revealed the plaintiff’s mood was abnormally low, feeling down while watching his friends play football or swim, saying he had to live with it.
159 In terms of work, the plaintiff told of some problems with his right thumb and that he would not be able to do heavy lifting. He had not resumed sport and is keen to avoid further time off work because of his family commitments.
160 On re-examination, the only change was that the slight residual redness of the right forearm scars had completely faded. Grip strength was the same. There was no abnormality of sensation with the distribution of the right median nerve and there was no evidence of Complex Regional Pain Syndrome.
161 Mr Buntine thought the shaking of the right hand observed at times was clearly not of an organic neurological causation.
162 Mr Buntine noted the recent x-rays did not demonstrate a cause of the right thumb pain and the fracture of the ulna was seen to be soundly united but with some apparent bowing. Positive ulnar variance was present. Mr Buntine doubted very much that had been caused by the injury. The gap between the distal ends of the ulna and radius however, was wider than to be expected, suggesting the possibility of stretching of the inferior radio ulnar ligaments as a result of the injury. It was noted that the MRI and a report had been sent to Mr Brown for his comment.
163 Mr Buntine did not think the physical condition of the plaintiff’s right arm had changed but a significant work-related abnormal psychological state was now causing brief but significant episodes of shaking of the right hand and he thought a psychiatric referral was appropriate.
164 Mr Buntine found no significant change in the physical condition of the injured right forearm and wrist but it seemed the plaintiff’s psychological condition adjustment had relapsed. Mr Buntine believed all the statements made by the plaintiff in his first affidavit were consistent with the present condition of his right arm.
165 Mr John O’Brien, orthopaedic surgeon, initially examined the plaintiff in April 2011, and more recently in June 2013.
166 The plaintiff told him that a year after the incident, he returned to playing football but managed only two games, as knocks to the forearm caused severe pain which forced him to stop football and he has not returned to that since.
167 Physical examination in April 2011 indicated the plaintiff had regained reasonably good function of all fingers; however, Mr O’Brien found a substantial loss of function of the right thumb where clinically there appeared to be loss of active extension of the thumb due to the absence of function of the extensor pollicis longus muscle. In addition, there appeared to be some evidence of flexion contraction involving the extensor pollicis longus. Mr O’Brien thought that was most likely associated with compartment syndrome, which was caused by the crush injury and required surgical decompression.
168 Mr O’Brien described the injury as a severe crush injury to the right forearm involving a compound fracture of the right ulna with an undisplaced fracture of the right radius. He thought the injury was consistent with the stated cause which had resulted in the significant loss of function of the right thumb with some loss of forearm function. He thought the plaintiff’s clinical condition appeared stable. He thought, overall, the prognosis was poor, as there would be no improvement in the current function of the right forearm and hand.
169 Mr O’Brien noted the plaintiff had reported a return to manual duties not without some difficulty. He had no doubt that the dexterity of the plaintiff’s dominant right hand and arm function was affected and he was limited to some extent in his ability to undertake any physical activities, particularly repetitively.
170 Mr O’Brien considered the plaintiff’s residual symptoms would prevent him from undertaking totally unrestricted labouring work on a permanent basis. He thought the plaintiff had sustained a considerable injury to his right dominant forearm and hand and that would have an effect on his general social, domestic and, in particular, recreational activities on a permanent basis.
171 On re-examination in June 2013, the plaintiff reported residual right forearm pain with some extension to the right thumb. Physical signs indicated an area of split skin grafting over the right forearm with distal scarring associated with a significant abrasion.
172 The plaintiff demonstrated quite reasonable wrist movement but there was a loss of function of the extensor pollicis longus tendon, lack of extension of the right thumb, and what appeared to be a flexion contraction of the distal interphalangeal joint of the thumb which appeared to relate to some contracture of the flexor pollicis longus tendon.
173 The plaintiff stated that his work boning lamb resulted in persistent forearm pain and he had a series of pustules on the back of his right thumb and finger in May 2012 and had recurrences later, requiring further antibiotics. His orthopaedic surgeon did not think these were related to the original injury.
174 The plaintiff described pain over the dorsomedial aspect of the right forearm, basically constant, and the severity of which was three to four out of ten, and aggravated by repetitive activity and any heavy lifting or direct injury. He also noticed that since the infection, he had experienced intermittent shaking of the right hand, which could occur at any time.
175 Mr O’Brien had available the bone scan of the right forearm of 18 May 2012 and an MRI scan of the right wrist taken 28 September 2012.
176 Although the fracture was sound, Mr O’Brien noted there was sound union. The plaintiff continued to describe persistent forearm pain and restricted function of the right thumb. There was now noted to be some restriction in forearm pronation, in addition to definite restriction in the function of the right thumb with limited abduction in opposition of the thumb with lack of extension affecting both the metacarpophalangeal and interphalangeal joint of the thumb. Mr O’Brien noted there was, indeed, a fixed flexion deformity of the interphalangeal joint. He considered the condition stable.
Investigations
177 The plaintiff’s right forearm, hand and wrist were x-rayed on 15 November 2006. It was reported there was a compound fracture involving the lower ulnar shaft.
178 An x-ray of the right forearm was ordered by Dr Brown in January 2010. It was reported there was a soundly united fracture of the ulnar shaft with a metal plate attached by several screws. No recent injury or abnormalities were detected.
179 A regional bone scan of the right forearm and wrist was undertaken in May 2012 at Dr Rajcoomar’s request. It was reported there were some reactive bone changes in the ulna at the site of the internal fixation. There was some slight sclerosis described, associated with the triquetrum.
180 An MRI scan of the right wrist of September 2012 was reported as demonstrating early degenerative change at the STT articulation with a small ganglion apparently arising from the articulation, eroding the distal pole of the scaphoid bone. There was described some scapholunate ligament injury and ECU tendinosis with longitudinal orientated intrasubstance tear.
Claim documentation
181 By letter dated 9 November 2011, X Changing advised the plaintiff that liability had been accepted for injuries to his right arm, thumb and scarring, and liability denied in relation to his right hand.
The Defendant’s medico-legal evidence
182 Dr Elder, consultant specialist in occupational medicine, examined the plaintiff in October 2011.
183 The plaintiff then complained he could not extend his thumb. Dr Elder found decreased motion in other areas. The plaintiff had difficulty lifting very heavy items because of pain in his right arm. There was some pain in the wrist associated with decrease of motion.
184 The plaintiff stated that the scarring had caused significant problems and he had been involved in a couple of fights because of adverse comments, so he still wore long sleeved T-shirts so no one would see it.
185 The plaintiff advised Dr Elder he had to be very careful with sun exposure because he got significant sunburn the previous year. The plaintiff had taken to cutting one sleeve off the unaffected arm so his right arm would be covered. He could still regulate his temperature when it was warm.
186 The plaintiff described a decreased sensation in the dorsal aspect of the forearm consistent with distribution of both the musculocutaneous and medial antibrachial nerve.
187 The plaintiff advised he only very rarely took paracetamol. The plaintiff found returning to AFL football too hard and he had resumed playing tennis but that could cause right arm pain. He had resumed fishing.
188 From 2009, the plaintiff had been working in an abattoir and had learnt to “bone backwards” as he had difficulty holding the knife. The plaintiff advised he could have some difficulty with buttons and zips but he was independent in self care.
189 Dr Elder noted the donor site on the thigh was 10 x 6 centimetres and there were two scars on the ulnar aspect of the plaintiff’s arm measuring 13 x 6 centimetres. The donor site itself was depressed and measured 6.9 centimetres and there was some distal tethering to the underlying structures. He also noted there was a traumatic patchy scarring measuring approximately 9.7 centimetres, which was slightly depigmented over the wrist.
190 In addition restriction of movement, Dr Elder allowed upper extremity impairment for the peripheral nerve system involvement. He also noted that there was slightly reduced grip strength on the right of 48 compared to 50 on the left.
191 Mr Murray Stapleton, plastic and hand surgeon, examined the plaintiff in July 2013.
192 The plaintiff told Mr Stapleton of annoying discomfort in the right arm which was constant. He had no sensation, of course, over the skin graft areas which were not only fragile but more vulnerable to injury than with unaffected skin. Mr Stapleton noted the grafts were very sensitive to sunlight and the plaintiff, therefore, had to protect his forearm from exposure to sunshine.
193 The plaintiff had a reduced range of movement of his right wrist and reduced capacity to extend his right thumb. Wrist joint movements were – flexion 50 degrees, extension 30 degrees and radial and ulnar deviation 10 degrees. Mr Stapleton also found restriction in radial deviation and ulnar deviation.
194 Mr Stapleton noted, so far as the disfigurement was concerned, on the flexus surface of the mid portion of the forearm, the plaintiff had a 9 x 4 centimetre skin graft, and below that, had a second graft extending for 7 x 3 centimetres. Overlying the ulna on the right forearm, he had a 13-centimetre surgical scar. Mr Stapleton thought the plaintiff’s condition had stabilised and he now needed no treatment.
Claim documentation
195 The plaintiff signed a Claim Form on 27 November 2006 setting out he had suffered injury on 15 November 2006 to his right arm whilst fixing or unblocking a bailing machine. He suffered a broken arm, skin grafts and limited finger movement. He was then working 36 hours a week with pre-injury average ordinary weekly gross earnings of $420.66.
196 The plaintiff lodged a Claim for Impairment Benefits on 22 June 2011 relating to his right arm, right hand and thumb, and scarring deformity.
197 The initial Certificate of Capacity was from Dr Dao at Geelong Hospital, who certified, on 8 December 2006, that the plaintiff was unfit for any work from 15 November 2006 to 15 February 2007 following an injury at work involving a compound fracture of the right ulna and skin graft to the right lower arm.
Video surveillance
198 There was about 18 minutes of film shown of the plaintiff taken from over 40 hours surveillance.
199 On 8 September 2012, the plaintiff was shown between 8.31am and 8.38am mowing his front lawn. Whilst mowing with both hands, the plaintiff repeatedly dragged the mower back up what appeared be an incline using his left hand. He was then shown removing the grass catcher with his right hand and later, using a Whipper Snipper, predominantly with his left hand.
200 Later in the morning, the plaintiff was shown at the supermarket. He briefly carried a box of beer and put it in his car. He was also shown carrying his small child on his left arm.
201 There was about 3 minutes of film of the plaintiff at the supermarket on 13 April this year. He was wearing a T-shirt and shown chatting to a friend.
202 On 13 July 2013, there was 3 minutes film. The plaintiff was shown carrying a basket of clothing to the laundromat and standing outside smoking, waiting for the clothes to dry.
The Defendant’s submissions
203 It was submitted it was extraordinary, the lack of information in the affidavits and the false histories given to Messrs O’Brien and Buntine.[46] The plaintiff had a second chance with the second affidavit to correct the history about football but in fact he made it worse.
[46]T49
204 Football was not just a credit issue, the plaintiff’s actual ability to be a champion before and to play after was in issue.[47] The plaintiff was in fact playing at the Colac Imperials Reserves in the season of the injury, which it was submitted was not the record of a champion footballer.
[47]T51
205 It was not credible that the plaintiff would leave the Falcons because he did not fit it. It could not be accepted the plaintiff would not stay there because he was a country person because it was only Geelong and there would have been other country people there.
206 Further, the plaintiff played the full season in 2007, although he previous said he did not start till 2008.[48] One would have expected corroboration from football people, particularly when his close friend arranged for the plaintiff to play at Winchelsea.
[48]T52
207 Significantly, the plaintiff did not suffer any injury to his arm in the time he played football. Why the plaintiff stopped playing was the key issue.[49] It was submitted the history was someone with this injury was able to play football and play it at a reasonable standard and that was not the picture of someone who was going to be a champion, whose championship quality had been taken away.
[49]T53
208 It was submitted it was understandable why the plaintiff would give up football with the responsibility of young children and working 40 hours a week and buying a house in Colac. That was a totally different lifestyle from the boy who got one game at the Falcons. It was submitted it should not be accepted that somehow after five seasons, the incident had prevented the plaintiff playing football.[50] He managed to cope throughout the seasons playing, and even in the lesser leagues, the players would still have been rough. It was submitted the plaintiff at best would have been just a country footballer and the loss of that pastime on its own cannot be seen as serious when account is taken of what has been retained, particularly in the absence of corroboration.[51]
[50]T54
[51]T55
209 It was conceded it was a credit to the plaintiff that he was working in a physical and repetitive job. It was submitted the plaintiff does not seem to have a great deal of problems doing the work, given the history he gave to Mr Buntine and Mr O’Brien. In terms of the father-in-law’s affidavit, it was submitted that while the plaintiff had some problems at work, these were not to the degree of being very considerable and it would be strange, in a condition of this nature, there would not be any problems.
210 However, the plaintiff is not taking time off work or getting by with taking painkillers, only taking some Panadol across the counter. If his condition was worse, he would be taking strong painkillers. It was submitted the doctors are not suggesting the plaintiff has a significant problem and he sees a doctor in 2012 because of shaking, unrelated to the incident. There was not a deterioration in the plaintiff’s condition. Further, Mr Brown thought the plaintiff can keep doing his job at the abattoir which he has done for years.
211 It was submitted an inability to go surf fishing was not a serious consequence because the plaintiff can still fish from the boat. Cricket really did not amount to much in the plaintiff’s pre-incident life.
212 The plaintiff is able to look after and carry his children and babies. He can do gardening as shown on the DVD. The film was a snapshot of the plaintiff’s life - mowing, Whipper Snipping, shopping, and carrying the baby and doing the washing.
213 The plaintiff told Mr Buntine he did not have problems with his grip when boning. The plaintiff wore a short sleeved T-shirt at the supermarket so the scar does not cause him much problem.[52]
[52]T57
214 In summary, despite interference with work suggested by the plaintiff’s father-in-law and partner, his impairment is not serious. Forty hours a week boning, looking after two babies, looking after his house, with a social life, friends and two family circles, the plaintiff is getting on with his life, with some interference, and that situation “just falls short”.[53]
[53]T57
215 Counsel for the plaintiff submitted that, whilst he did not want to shame the plaintiff, the plaintiff was not any great shakes at school. He was too stupid to even give an account of his football history in either affidavit and to the doctors, and even in conference yesterday.[54]
[54]T58
216 It was submitted that the plaintiff’s accounts of his football involvement were so different. It was important to see what was really the high point of the case and where there was corroboration, if any and that was why the film was important.[55]
[55]T58
217 It was submitted activities of daily living could not be ignored and that there was only 11 minutes of film from 40 or so hours’ surveillance.[56] In that film, the plaintiff was clearly avoiding using his dominant arm. He is a twenty-five year old man who is not bright; the only things he knows are outdoor activities, his family and what he does around the house.[57]
[56]T59
[57]T59
218 It was not challenged that the plaintiff stopped playing at Winchelsea, where he was earning $350 a game, and he then refused the offer of alternate games.[58] Having to stop playing professional football was a big loss for a young bloke who knew nothing else, battled on and did not do well at school.
[58]T60
219 The plaintiff would still be playing now but for his injury.[59] It was the centre of his social life and the fact he was the father of two children did not stop him from playing. To the contrary, his evidence was it a family affair.[60] He was then reduced in the end to reserves with blokes who had played 500 games.
[59]T60
[60]T61
220 The plaintiff was not cross-examined about the fact he had been selected in the schoolboys’ side and it was submitted it might be consistent with his whole presentation that he could not cope at the Falcons because he was born and bred in the country. It was submitted the plaintiff did not even know how to look after himself in the witness box in terms of consistent story.[61]
[61]T61
221 The plaintiff is not playing football today and would probably be running around having a kick if not for his injury. He was not playing cricket, although it was not his major interest. He tried the odd game of golf and had not tried tennis.
222 It was submitted the consequences of his injury were a big loss to a young man who has no artistic or literary interests. His whole life revolves around his work record, which is excellent, and none of the work he has ever done has been easy. There is no evidence he has been out of work since he left school.
223 The uncontradicted evidence of the abattoir manager, who sees the plaintiff hold his knife awkwardly, is that he at times sees fit to take the plaintiff off the line and rotates the plaintiff in his job. Further, other managers cover for the plaintiff.
224 It was submitted it is consistent with the plaintiff’s stupidity he was having a kick of footy in 2007, within a year after the incident, and consistent with his stoicism that he played on and off. He even went back a week after he had his appendix out. It was submitted the plaintiff does not know any different. He really does not know any other interests; he does not know any other way of life, whether it be in work or sport “other than to keep having a crack”.[62]
[62]T63
225 The plaintiff does not return to Mr Brown because he has got the shakes. He was seen on 28 September 2012 when he stated he had forearm pain for about six months in the back of his arm but also his wrist and thumb, worse with lifting and repetitive wrist movement. He also had pain gripping and he complained of a lump on the back of his wrist. He told Mr Brown he stopped playing football because of his arm.
226 Counsel for the plaintiff concluded that the plaintiff was a young man with a disability that he has had now for six or seven years. There was no real hope of it getting better and no real hope or no real indication that the plaintiff will be able to return to any active social or recreational activity.
227 On that basis, it was submitted the plaintiff’s impairment was serious.
Overview
228 It is not disputed that the plaintiff suffered a severe crushing injury to his right forearm.
229 Three surgical procedures were conducted at Geelong Hospital. An open reduction of the fractured ulna was carried out on the said date and further surgical procedures were undertaken over the following two days.
230 Whilst there has been a recent development of some shaking associated with his right hand which has been described as psychological in nature, there is no issue that the plaintiff’s right forearm and right thumb injuries are organically based and it is those injuries that are relied upon for the purposes of the present application.
Credit
231 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[63]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[63](2010) 31 VR 1 at paragraph [12]
232 After giving further details of his football career after the incident, it became apparent that the plaintiff had significantly understated in his affidavits and histories given to Mr O’Brien and Mr Buntine, the extent to which he played football after the incident.
233 The plaintiff attempted to explain this situation by stating that he thought he had deposed to more detail in his affidavits and that he should have the read the affidavits more closely before swearing them. In response to a suggestion that he had misled doctors, the plaintiff simply said he did not think this was the case.
234 The plaintiff explained he did not want to brag about his football pursuits and he also said it was not a big deal for players to be paid in the country. The first time he had been asked in detail about his post-incident football career was the day before the hearing commenced.
235 This is a somewhat unusual case, as despite the plaintiff’s willingness to blatantly lie to doctors about his post-incident football career, I otherwise found him to be a credible witness who did not overstate the extent of his problems – a view confirmed by Mr Buntine on examination, who found there was not a hint of exaggeration and actually he thought the plaintiff tended to understate his incident-related problems.
236 Significantly, the film relied upon by the defendant, only 18 minutes from surveillance undertaken over 40 hours, in my view, did not show a level of movement of the plaintiff’s right arm inconsistent with his evidence. To the contrary, when gardening, the plaintiff actively used his left arm to repeatedly move the mower back up the hill after mowing downhill with both hands. He took the weight of the Whipper Snipper with his left, although he did lift the grass catcher in his right. He carried his child in his left arm.
237 Further, the lay evidence relied upon by the plaintiff which confirmed his level of pain, restriction and disability was not challenged.
238 There was no suggestion by any medical practitioner of any embellishment or exaggeration by the plaintiff on examination.
239 Whilst the opinion of medical practitioners is heavily reliant on an accurate history, the practitioners in this case did not focus on football as of any particular significance when reaching their conclusions as to the plaintiff’s present impairment.
Pain
240 I accept, following this frightening injury, despite surgical repair, the plaintiff has ongoing pain and restriction in his right arm and thumb.
241 I accept the plaintiff suffers ongoing pain and aching in his right arm, the level of which varies with activity. He also suffers right thumb pain, and movement of his thumb is restricted, resulting in difficulty with his grip.
242 There have been a number of flare ups of the plaintiff’s pain requiring medical treatment. In January 2010, he attended his general practitioner complaining of right forearm pain and further x-rays were arranged.
243 The plaintiff attended Dr Rajcoomar in March 2012 complaining of worsening thumb pain and weakness and loss of sensation in the median nerve territory
244 The plaintiff was referred back to Mr Brown, whom he saw in September 2012, when he gave a history of six months of forearm pain in the back of his arm, wrist and thumb. Mr Brown thought further investigations were appropriate and referred the plaintiff for further advice on his wrist problem to Professor Page.
245 Whilst the plaintiff did not report this problem to Mr Buntine on re-examination, he did not mention lessening sensation over the distal ulnar border of the right forearm and proximal part of the ulnar border of the right hand.
246 Clearly, the plaintiff has problems with the dexterity and function of his right thumb. Clinically, there is loss of active extension of thumb due to the absence of function of the extensor pollicis longus muscle and there is evidence of flexion contraction involving the extensor pollicis longus.
247 The plaintiff’s thumb is somewhat flexed to a point where Mr Buntine considered he may require further surgery in the form of a tendon transfer. However, the plaintiff is reluctant to take this course as he would need further time off work and there was the prospect of more scarring.
248 In Stijepic v One Force Group Aust Pty Ltd,[64] Ashley JA and Beach AJA, discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[64][2009] VSCA 181 at paragraph [43]
249 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
250 In my view, the plaintiff has a strong work ethic, which explains his persistence with work in circumstances where those of less stoicism would have been slower to return to and participate in the workforce.
251 After only a couple of months off, the plaintiff returned to the employer, initially on administrative duties, and then production work for six months, before starting with the abattoir in October 2009, where he has remained.
252 As Nettle JA commented in Dwyer v CalcoTimbers Pty Ltd No 2,[65] he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[65][2008] VSCA 260 at paragraph [4]
253 The plaintiff has continuing problems with his duties and has had to modify his boning technique because of his thumb condition.
254 The plaintiff’s job as a boner involves sliding of carcasses from a conveyor belt on a repetitive basis. He is not required to lift heavy carcasses or work on the chain – other typical meatworker duties. The managers at the abattoir are aware of the plaintiff’s condition and accommodate him with rotating shifts and, on occasion, the plaintiff has been taken off boning duties and undertaken lighter tasks for up to a week at a time.
255 Mr Buntine considered the plaintiff may have to cease these duties earlier than otherwise would have been the case had he not been injured. Mr O’Brien thought the plaintiff will struggle to undertake unrestricted repetitive manual work.
256 Clearly, the interference with football is major consequence for a young, talented footballer. I accept that the plaintiff ceased football in 2011, when he was aged only twenty three, because of his fear of re-injuring his arm and requiring time off work, not being able to provide for his young family.
257 Whilst the plaintiff played nine consecutive senior games for Winchelsea for which he was paid, he was unable to play out the rest of the season, even on the basis of playing alternate games, because of his arm injury. At that time he did not have a young family to support.
258 Football over the following seasons involved less serious games, playing with men considerably older than himself. Finally, in 2011, the plaintiff could not even cope playing at this lower level.
259 Football was 80 per cent of the plaintiff’s life. It was his sport and his social life. Whether or not he had had league prospects, having had a game with the Falcons, football was his focus, as it is for so many young men, particularly in country towns. As Mr Buntine observed on recent examination, the plaintiff was clearly sad at watching his friends play football and engage in other activities.
260 I accept that the plaintiff would still be playing football today if not for his incident injury and his fear of further damage to his arm. His family commitments do not prevent him from playing football. He did not have to attend training to play in lower leagues and I accept football would have, in fact, been a family outing and recreation, as it is for so many country families.
261 The plaintiff played football after injury wearing a guard because of his love for the game. Whilst it may be surprising that he was able to play for a number of seasons, it is also surprising that he played the week following his appendix surgery. As the plaintiff described, he simply learned to live with it and just got on with his life.
262 The plaintiff has also been prevented from engaging in other physical activities he enjoyed.
263 It is no longer possible for him to go ten-pin bowling or play tennis. Although just a social cricketer, the plaintiff has only been able to play three games since injury. He has tried playing golf a couple of times but had problems with his swing due to his arm injury.
264 The plaintiff can no longer fish with a surf rod as it is too heavy and cumbersome to cast. He is limited in his boat fishing, having problems casting and reeling in fish. These problems were confirmed by his partner and father-in-law, whose evidence in this regard and on other matters was not challenged. Fishing is now more of a social outing than serious fishing, as was the case before the incident.
265 The plaintiff requires painkillers on occasion, as his partner confirmed. He has difficulty sleeping and wakes because of arm pain.
266 The plaintiff is restricted in his ability to play with his children and he uses his non-dominant arm when possible, as shown on the film. He needs to rest when he gets home after work as his arm is sore and he is unable to do much around the house.
267 The plaintiff is also limited in the amount of home maintenance he can undertake, as his father-in-law confirmed.
268 As the plaintiff’s right arm and thumb pain have persisted in excess of seven years, I am satisfied the impairment to the plaintiff’s right upper extremity is permanent.
269 Taking into account all the evidence, I am satisfied that the plaintiff has a serious injury relating to his right upper limb and I grant leave to bring proceedings for damages for pain and suffering.
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