Milton v Transport Accident Commission
[2016] VCC 1549
•8 March 2016
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No: CI-15-03767
| STEPHEN JAMES MILTON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE WISCHUSEN | |
WHERE HELD: | Geelong (hearing) and Melbourne (judgment) | |
DATE OF HEARING: | 3 and 4 March 2016 | |
DATE OF JUDGMENT: | 8 March 2016 | |
CASE MAY BE CITED AS: | Milton v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1549 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to the left upper limb
Legislation Cited: Transport Accident Act 1986, s93(17)
Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67; Humphries & Anor v Poljak [1992] 2 VR 129
Judgment:The plaintiff is granted leave pursuant to s93 of the Transport Accident Act 1986 to bring a proceeding for recovery of damages in respect of the serious injury to his left upper limb sustained on 13 November 2009.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A E A McNab with Ms R Dal Pra | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr R H Stanley with Ms M S Tait | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks leave pursuant to s93 of the Transport Accident Act 1986 (“the Act”) to bring a proceeding for the recovery of damages in respect of an injury sustained to his left wrist on 13 November 2009. On that day, the plaintiff fell onto his outstretched arms from the back of a utility vehicle. At the time, he had been working in the course of his employment, using the back of the vehicle as a platform to reach overhead spraying equipment. The serious, long-term impairment relied upon by the plaintiff is that of the left upper limb.
2 As a result of the fall, the plaintiff suffered a Colles’ fracture of the left wrist. This was later reduced under general anaesthetic. The weight of the medical evidence, which I will later set out, is to the effect that the wrist fracture resulted in the development of Chronic Regional Pain Syndrome Type 1 (“CRPS Type 1”) (in earlier times referred to as Reflex Sympathetic Dystrophy).
3 Prior to any evidence being called, Counsel for the defendant indicated that the plaintiff’s application was resisted, principally on the basis that all of the identified consequences of the injury to the left wrist, in particular the plaintiff’s inability to return to manual work, already existed at the time of the transport accident and were caused by bilateral carpal tunnel syndrome and right lateral epicondylitis in circumstances where all three of these conditions had been the subject of surgical treatment in the two years or so before he fractured his left wrist, and in circumstances where the plaintiff was, at the time of the fall, working under a medical certificate which placed great restrictions upon the physical efforts he could engage in.
4 It was the defendant’s case that the principles set out in Peak Engineering & Anor v McKenzie[1] were applicable to this proceeding, and that the plaintiff could not discharge the onus he bears of establishing what consequences were alone the result of the injury relied upon.
[1][2014] VSCA 67
5 The injury itself was treated as a straightforward fracture of the wrist. X-rays[2] of the wrist showed “an intra-articular, mildly displaced fracture involving the distal end of the left radius” for which the plaintiff was taken to theatre on 17 November 2009 and where the wrist was manipulated, reduced and plaster of Paris applied.[3] A subsequent x-ray on 29 December 2009 showed “no evidence of significant healing of the fracture line” and a further x-ray on 17 March 2010 showed satisfactory alignment and “an old fracture of the distal radius and osteopenia of the wrist”.[4]
[2]Plaintiff’s Court Book (“PCB”) 16.2
[3]PCB 20.6
[4]PCB 17.2
Background
6 The plaintiff is now fifty-seven years of age. He has never married. He had a very interrupted upbringing, which included two years in an orphanage. His schooling was sporadic and ended in Year 8. Since leaving school, he has spent his entire working life in manually-based occupations and at the time of the injury the subject of this proceeding, had been working with Nangiloc Colligan Farms Pty Ltd since 2000. There, he worked as a farmhand on a large fruit block performing a wide range of physically arduous and mechanical tasks involved with irrigation and spraying and the like.
7 The plaintiff’s account of his symptoms and disabilities affecting his left wrist as set out in his affidavits was scarcely challenged. The plaintiff’s first affidavit, sworn in May of 2013, described them as:[5]
“I am no longer undergoing any active treatment however I still have significantly restricted movement in my left wrist such that I am unable to close my left hand. My grip strength is markedly reduced and my left wrist and the back of my hand feel constantly tight. If I use my left hand for physical activity, I experience an increase in the pain in the wrist. My hand feels constantly cold. I cannot carry items of moderate weight in my left hand without increasing pain in my fingers.”
[5]PCB 6, paragraph 5
8 He then listed the main symptoms and disabilities resulting from the injury as:
“… my left hand can’t hold a bar of soap and showering; I cannot rely on my left hand to hold items and holding something like a bowl in my left hand causes my fingers to ache; I have difficulty with tasks requiring both hands such as washing and drying dishes, hanging washing on the line and the like.”[6]
[6]PCB 9, paragraph 8
9 In his recent affidavit of 22 January 2016, the plaintiff said:
“I continue to suffer from pain and my ability to use my left hand remains restricted. Movement of my left wrist is also restricted. Whilst I continue to have some pain from time to time in my right elbow, it is the injury to my left wrist that has a severe impact on my ability to undertake manual tasks. Further my ability to use my left hand for activities involving lifting, pushing or pulling is very restricted. I also find that my symptoms are made worse if I have used my left hand repetitively or over a prolonged period of time. My ability to grip objects with my left hand is restricted. I am unable to make a fist with my left hand. I rate the pain in my left wrist at about 5 – 7/10 on pain scale. The pain is worse when I use my left hand. My symptoms are worse when the weather is cold. At times my left hand feels cooler and sweats more than my right hand. Further, it is often a different colour to my right hand. I am often woken from my sleep if I roll onto my left hand. My prior right elbow injury does not cause me any difficulty sleeping. I feel that as time has gone on my left wrist and hand symptoms have got worse.”[7]
[7]PCB 13-14, paragraphs 6 to 16
10 The subject of the dispute was whether the inability to perform work and other manually-based tasks the plaintiff attributed to his left wrist were, or would be, already lost to the plaintiff because of the pre-existing condition of his carpal tunnels and his right elbow. This issue was explored in some length during cross-examination.
History of injury and treatment
11 Because much attention was focused upon this issue in the course of the proceeding, it is necessary to briefly set out the treatment the plaintiff received to his upper limbs before the fall.
12 On 28 September 2007, the plaintiff underwent right carpal tunnel surgery and was off work for four weeks. In 2008, he developed symptoms affecting his right elbow and underwent an ultrasound on 20 May 2008. In March 2009, more acute elbow symptoms caused his presentation to the Mildura Base Hospital where an x-ray and ultrasound were performed. On 12 March 2009, the results showed tendinitis of the common extensor tendon in the right elbow.
13 On 31 March 2009, the plaintiff underwent surgery in the form of an extensor tendon release performed by Mr Gardner.[8] The plaintiff reported severe elbow pain on a couple of occasions soon after the surgery, but by 18 May 2009 had returned to work on light duties.
[8]PCB 20.4
14 In early July 2009, the plaintiff reported left wrist symptoms which he thought were carpal tunnel syndrome, and at about the same time was complaining of tingling in the elbow. He ceased work on 28 July 2009 and the next day, his right elbow was further investigated by ultrasound.[9] The only clinical finding reported was diffuse tendinitis of the common extensor tendon following surgery.
[9]PCB 16
15 On 3 August 2009, the plaintiff underwent a left carpal tunnel release followed by about four weeks off work. The plaintiff returned to work on a light duties certificate on 12 October 2009. The certificate[10] specified “light duties only, not involving heavy manual work with lifting weights beyond 2 kilograms”. The work the plaintiff performed in the weeks following included pruning with secateurs in the right hand; flushing out irrigation pipes by opening and closing valves.[11] The return to work plan[12] specified tractor driving with spraying, topping and slashing; cleaning back-up filters and the provision of assistance for the lifting required for filling vats for spray applications.
[10]PCB 101
[11]Transcript (“T”) 14-15
[12]PCB 123 and 124
16 The performance of light duties was not without its problems. On 30 October 2009, the plaintiff attended his general practitioner and gave a history that “the pain has come back” from using a hammer at work and that he had not been able to find a suitable job for himself on the farm.[13] On that occasion, the plaintiff asked that an ultrasound be performed on his elbow and this was ordered. The plaintiff returned on 11 November 2009 to obtain the results from the ultrasound and, according to the notes, he was reassured that there was nothing to be found on it and he should persist with light duties.[14]
[13]PCB 142
[14]PCB 16.1
17 It seems to me to be quite clear from the medical reports that the plaintiff’s right elbow continued to be a problem for him and the likelihood is that it was still a problem when he fell from the utility on 13 November 2009. Despite these problems with the right elbow, it is noticeable that the plaintiff continued in his work and was performing a manual task when the injury the subject of this proceeding was sustained. When taken to the clinical notes made before the fall, the plaintiff did allow that he had continued to have trouble with his left wrist post-carpal tunnel surgery and the right elbow, and that it was these problems that made it difficult for him to find suitable work on the farm.
18 Taken to the subject, the plaintiff said, in cross-examination, that he did not know why his first affidavit made no reference to the three operations for work-related injuries that he had undergone before the fall, and he denied that the work description given in his affidavits were a deliberate attempt by him to mislead the reader. He was also unable to explain why it was that his second affidavit did set out the surgery that he had undergone. As to the condition of the right elbow, the plaintiff’s proposition that “it ultimately came good” was explored, and the plaintiff explained that it “slowly came good. I still had ongoing problems with it after I stopped work.”[15]
[15]T26, L15
19 Taken to Mr Gardner’s report[16] where his last consultation with the plaintiff on 25 March 2010 is referred to, the plaintiff stated in evidence that Mr Gardner was away on holidays that day and that he had seen another doctor. Mr Gardner’s reporting of the left wrist fracture is a little variable. Writing in December 2010, he stated: “I do not believe that Mr Milton’s satisfactorily reduced and healed left wrist injury is the cause of any restrictions that should be imposed.”[17] In that same report, Mr Gardner thought the pre-existing carpal tunnel problems should cause no restrictions in hand functioning and that the plaintiff’s elbow pain would restrict vigorous work activities.
[16]PCB 23
[17]PCB 23
20 In about April 2010, the plaintiff was placed on the Disability Support Pension and documents in evidence showed that at that time, his right elbow was still causing a problem, and he agreed he had seen his doctors during that year in relation to it. Reference to the clinical records show that this was preceded by some difficulty with the WorkCover insurer concerning his attendances on Dr Gardner and the plaintiff’s recorded complaints in 2010 include on 7 April 2010, “his hand still feels very stiff,” and on 3 May 2010, “has come back today as his left wrist is getting more painful as it is getting colder”.[18]
[18]PCB 138
21 Writing again in March 2012, Dr Gardner reported that the plaintiff was still experiencing pain in the left wrist and was unable to work when last seen on 25 March 2010. He then stated that as far as he was concerned, it was not a particularly serious injury, and then said:
“Such fractures often result in slight reduction in normal range of movement in the wrist joint, with some patients complaining of pain and with weakness when trying to grip powerfully. Therefore Mr Milton may have some difficulty with repetitive or vigorous use of his left wrist in the physical duties for which he is reasonably qualified.”[19]
[19]PCB 26
22 The plaintiff was cross-examined by reference to his presentation to Mr Peter Battlay, orthopaedic surgeon, in February 2011.[20] It is apparent that Mr Battlay had been asked to perform an impairment assessment of the plaintiff’s right elbow. The plaintiff made some complaints of pain on the lateral aspect of the elbow and then gave this history:
“He says he is using the right arm in preference now to the left, the left being very stiff, very weak and he is unable to make a fist, he says.”
[20]PCB 42B
23 During that examination, the plaintiff could not be persuaded to attempt to grip the dynamometer because he said he could not make a full fist with his left hand.
24 Mr Battlay saw the plaintiff again on 5 April 2011, this time taking a more detailed history of the difficulties he had with his left arm and wrist.[21] On that occasion, Mr Battlay’s diagnosis was:
“Mr Milton sustained an intra-articular radial fracture and it appears this has been appropriately treated conservatively. Unfortunately he has developed post-operative reflex sympathetic dystrophy which has not been properly managed, and from which he has a degree of permanent impairment of his digits.”[22]
[21]PCB 42G
[22]PCB 42H
25 Not long after, the plaintiff attended Dr Saluja, orthopaedic surgeon, who recorded his presenting complaint in these terms, “has come in today as the injury to the left hand has left it useless” and “he has had pain in the right elbow from overuse as his left hand has been dysfunctional from the fracture”. Dr Saluja appears to have explained that further ultrasound would not shed any light on his problems.[23]
[23]PCB 137 and 138
26 In early 2011, the plaintiff was examined by Mr Peter Kudelka, orthopaedic surgeon. It is apparent from his correspondence, and from exhibit 3, that the plaintiff’s solicitors were seeking his opinion as to the connection between carpal tunnel syndrome and the plaintiff’s work. Mr Kudelka took a history that included significant improvement in the plaintiff’s hand symptoms following bilateral decompression for carpal tunnel syndrome. He records that the plaintiff told him he would like to go back to work but that weakness and poor grip on the left hand and left wrist aching were a problem. The only abnormal joint identified was the left wrist, and Mr Kudelka wrote that his work capacity was significantly reduced “as he has a work-related partial permanent incapacity with respect to the left upper limb, particularly the left wrist”.[24]
[24]PCB 38
27 In 2012, the plaintiff moved to Stawell. In evidence were clinical notes from the practice he attended there which show that he complained of bilateral carpal tunnel type symptoms for which he was referred to a surgeon, Mr John Nelson. Mr Nelson wrote back to the general practitioner advising her that the plaintiff’s symptoms were not typical of carpal tunnel syndrome and that surgery did not have much to offer, noting:
“To complicate matters he has had a fracture of his left wrist, with some chronic stiffness in his fingers. He has had tennis elbow surgery done on his right elbow which hasn’t really been very successful.”[25]
[25]PCB 42a
28 The plaintiff was taken to other histories given over the years since the fall and he agreed that he continued to complain of problems with his right wrist and elbow and of carpal tunnel-type symptoms, and he agreed that he had had further nerve conduction studies done in 2012 because of symptoms he attributed to his carpal tunnel problem. The nerve conduction studies were reported as showing –
“… no electrophysiologic evidence of CTS on either side or of right ulnar nerve dysfunction.”[26]
[26]PCB 17.4
29 In cross-examination, the plaintiff agreed that it was his right elbow that had prevented him returning to tenpin bowling and that the right elbow would make heavy manual tasks difficult. He then agreed with a number of propositions:[27]
[27]T44
Q:“Indeed, it’s the same with other heavy manual tasks. Your right elbow gets in the way. For instance, changing a tyre?‑‑‑
A:Yes.
Q:Riding a bike your right elbow impedes your free ability to ride a bike?‑‑‑
A:No. No.
Q:Your ability to do push-ups is obviously impeded ‑ ‑ ‑?‑‑‑
A:Yeah, that - yes.
Q:- - - by your right elbow. Your ability to make the bed would be impacted by your elbow pain?‑‑‑
A:Yes.
Q:Your ability to dry dishes would be impacted by your elbow pain?‑‑‑
A:Yes.
Q:Your ability to be a handyman around the house is impacted by your elbow pain?‑‑‑
A:Yes.
…
Q:Indeed, your ability to work is impacted by your elbow pain?‑‑‑
A:No.”
30 The plaintiff agreed he that was on light duties at the time of the fall, in part because of his elbow problem, and agreed that even now the right elbow would make it difficult for him to find work that he could perform. Taken to the clinical notes and correspondence about his problems with reflux, he agreed that he had those problems and that they affected his life and his sleep. He agreed he does not take any analgesic medication for the condition of his left hand and that he had no further specialist appointments in relation to the treatment of it.
31 In re-examination, the plaintiff explained that he had not had much treatment because the insurance would not cover him, and because he could not afford it. He said that his gastric condition and his elbow condition would not prevent the undertaking of farm work and that his right elbow presently “does play up now and then” and “I get pain maybe once a month”. He said that if all he had was the right elbow condition, he could make beds, dry dishes and perform handyman duties.
The Plaintiff as a witness
32 The plaintiff was a man of few words who seemed to me to be trying to give a straightforward and truthful account of his problems. Although he listened carefully to the questions and sometimes paused before answering them, I was not always confident that he understood the question that had been asked. I accept the submission made by counsel for the plaintiff that he is a relatively unsophisticated man in keeping with his working background, his limited education and the neuropsychologist’s assessment of him.[28] Although it was put to him that he had, in his affidavits, attempted to mislead the reader in a number of respects, I was not persuaded that it was he who crafted the affidavits with this in mind. The resignation documents[29] may shed some light on his literacy. Nor am I persuaded that more recent attendances upon the doctors for his left wrist problems were for the purposes of “beefing up” his case. The medical history shows that his response to ongoing symptoms has often been to ask for investigations to be repeated.
[28]Keeping also with the neuropsychological assessment (see PCB 46)
[29]PCB 129 to 131
The nature of the present condition of the Plaintiff’s left wrist
33 In evidence is an MRI scan of the left wrist performed on 28 November 2014.[30] The radiologist set out the findings and noted that they were suspicious for a partial thickness tear of the scapholunate ligament and that there were features in keeping with a TFC tear, which I take to be triangular fibro cartilage, and some flattening of the ulnar nerve in the carpal tunnel. The medico-legal commentators in the case are not unanimous as to the significance of these findings. Dr Sachdev, the treating general practitioner, wrote as to this:
“The plaintiff suffers from chronic left wrist pain since he sustained a distal radial fracture as a result of a fall in November 2009. An MRI of his left wrist has revealed a tear of TFC and scapholunate ligaments. These are consistent with the state[d] cause. He is currently on welfare benefits from Centrelink. He will be unable to do a manual job which involves lifting weights using both hands and any job which involves lifting weights using both hands and any job which involves forceful gripping action with his left hand. He should be able to do [a] part-time sedentary job. Considering [the] duration of his symptoms, it is likely they will persist in the long run.”[31]
[30]PCB 18
[31]PCB 41
The medico-legal reports concerning the left wrist
34 I refer to the above text which sets out the plaintiff’s attendance upon Mr Battlay.
35 In November 2012, the plaintiff was examined by Mr Bruce Kinloch, a consultant in pain medicine and rehabilitation.[32] The history of the left wrist included that the plaintiff was still unable to make a fist properly and the wrist area felt tight. It went on to include that if the plaintiff worked with the left hand, he got pain in the left wrist. Dr Kinloch noted, on examination, that the left hand was cold, he was unable to make a fist and the grip strength was reduced. It was Dr Kinloch’s opinion that the diagnosis was “flexion contracture of the forearm tendons in the left hand following wrist fracture on the left”. Dr Kinloch did not think the plaintiff could return to any work because of the combination of his various upper limb problems.
[32]PCB 47
36 In December 2013, plaintiff was examined by Mr Robert Dickens, orthopaedic surgeon.[33] His complaints included temperature changes, discomfort with any use of the hand, with pain at the front and back of the wrist, tightness of the wrist joint and limited finger movements, with discomfort on rolling onto that side at night. Mr Dickens’ medical assessment noted that the plaintiff’s right hand had been used more than the left; his restricted finger movement on the left was somewhat variable and there was one centimetre of wasting of the left forearm, though this was of doubtful significance because he is right handed. Mr Dickens felt the plaintiff had a distal radial fracture involving articular surfaces, with residual dysfunction in the wrist and altered function in the fingers. He felt his presentation was complicated by the pre-existing carpal tunnel surgery and on the basis of his examination, wrote that because the plaintiff is right handed, he could be capable of doing quite a lot of manual work. He stated that it was not possible to explain why he had ongoing problems in his left wrist following what he called a simple Colles’ fracture. Mr Dickens did not think the plaintiff would be capable of returning to jobs which required manual dexterity.
[33]DCB 10
37 In September 2015, the plaintiff was assessed by Mr Damien Ireland, hand surgeon.[34] Mr Ireland did not think the MRI[35] showed anything of significance and diagnosed “CRPS following injury to the left wrist”.[36] Mr Ireland did not think there was any significant non-physical component to his symptoms and stated that his condition was stable and unlikely to respond to treatment. He recommended evaluation by other specialists.
[34]PCB 52
[35]Mr Ireland recorded that he had read the report
[36]PCB 55
38 In October 2015, the plaintiff was examined by Dr Peter Blombery, a specialist consultant physician in vascular disease. On examination, Dr Blombery found restricted movements of the hand and wrist and that the “left hand was 2.5 degrees cooler than the right, and redder in appearance and sweatier”. He noticed that grip strength was reduced to 10 kilograms on the left and made a diagnosis of CRPS Type 1, for which no specific treatment was indicated. Dr Blombery commented that what was seen on the MRI may have occurred at the time of the injury, but that no treatment at this stage was likely to help. He noted that the inability of the plaintiff to flex his fingers was a function of pain not uncommonly seen in patients with CRPS Type 1. He thought the plaintiff had no capacity for work using his left arm.
39 On 11 January 2016, the plaintiff was examined by Dr David Middleton, an occupational health and rehabilitation consultant.[37] On examination, Dr Middleton noted that the plaintiff was a poor historian and that he had very limited flexion of the fingers of the left hand and wrist. He thought it was clear that the right hand was distinctly warmer than the left, which was cold, and he thought the left middle finger was locking. On repeated testing, the strength of the left hand grip was consistent, showing a loss of about 60 per cent of the expected strength. After an extensive review of the medical reporting in the case, Dr Middleton stated that his diagnosis was of the fracture with likely avulsion of the attachments at the left ulnar styloid with derangement of the left carpus, in particular the scapholunate ligament, an aggravation of pre-existing, but asymptomatic, age-related degenerative first carpometacarpal joint. He stated that this injury has suffered with a complication of CRPS Type 1 and that further treatment would be required to deal with this. He did not think the plaintiff was fit for work that involved any significant use of the left hand.
[37]PCB 64
40 On 21 January 2016, the plaintiff was assessed by Mr Huffam, orthopaedic surgeon.[38] He inspected the MRI images, which he stated showed that the lower end of the radius united in good alignment and showed the presence of–
“… a small defect in the proximal articular surface of the scaphoid bone of the wrist corresponding to the level of the radial styloid process and evidence of a partial tear of the triangular fibrocartilage which arises from the ulnar styloid process.”
[38]DCB 19
41 Of these findings he wrote:
“There appears to have been a minor impaction fracture of the scaphoid bone of the wrist by the styloid process at the radius.”[39]
[39]DCB 23
42 He found no signs suggestive of CRPS and thought the plaintiff’s disability was minor.
Counsels’ submissions
43 As I mentioned at the commencement of these reasons, the defendant submits that all of the social, domestic and occupational consequences of which the plaintiff complains in relation to the left wrist were already lost to him because of the pre-existing conditions of bilateral carpal tunnel syndrome and right lateral epicondylitis. As to these conditions, he had not been reporting much in the way of carpel tunnel syndrome symptoms for some years now, and the most recent EMG of 2012 showed normal conduction. In my opinion, the evidence does not show that the carpel tunnel syndrome is much of a problem for him now, if at all. As to the right elbow, he still gets some pain in it now, but only from time to time. It seems likely, on the weight of the medical opinion, that it would be troublesome if he was to return to heavy work.
44 The defendant submitted that the analysis required by Peak Engineering[40] was required here, and that when it was made, the consequences of the plaintiff’s left wrist condition fell well-short of being “very considerable” in the required sense. It is worth noticing in this context that the plaintiff, in his affidavit, stated that apart from tenpin bowling and some social activities, his working life had been such that his out-of-work activities did not go much beyond the watching of television or videos, and looking after his dogs.
[40](supra). Though it was a case of a subsequent unrelated injury (see paragraphs 2 and 8)
45 Counsel submitted that the opinions upon which the plaintiff relied, in varying degrees, all discussed his incapacity for work and placed limitations upon it on the basis of all of his upper limb conditions, and none dissected out the consequences for his ability to work of the wrist fracture taken alone, apart from Dr Middleton, who, it was submitted, acted on an incorrect pre-injury history. Counsel also relied on the opinions of Mr Dickens and Mr Huffman in support of the submission that the condition of his wrist was no more than a well-healed fracture.
46 On the plaintiff’s behalf, it was submitted that there was no inconsistency between the plaintiff’s responses to the “impact” of the injuries in cross-examination and his account in re-examination. The submission was that I should not understand the plaintiff to have understood that “impact” was the equivalent of “prevents or significantly impairs” the activity about which he was then being cross-examined.
47 It was submitted that the plaintiff only ever had a capacity for manually-based tasks, that this was compromised by the “pre-fall” conditions of carpal tunnel syndrome bilaterally and right lateral epicondylitis, and that what little was left to him in the way of work capacity was taken away by the fall. It was submitted that I should find that his right elbow and his carpal tunnel syndrome improved over the years since, so that, in the causes of his incapacity, the left wrist had become more prominent. Counsel submitted that I should not, as the defendant had submitted, accept that the plaintiff ceased work when he did solely because of a “dustup” with the foreman, pointing out that the resignation documents put his return to work on restricted duties as setting the scene for what followed. Counsel pointed out that the plaintiff’s complaint of hand dysfunction was simply not challenged, and that he had, from very early times, been reporting to doctors, in consultations about his other injuries, that his left wrist was his major problem.
Findings
48 After reviewing all the medical evidence, I am satisfied on the balance of probabilities that as a result of the fall, the plaintiff sustained a Colles’ fracture of the distal end of the left radius, associated injury to the soft tissues of the wrist joint resulting in the condition described as CRPS Type 1 and formerly known as Reflex Sympathetic Dystrophy. Although the medical commentators are not unanimous as to this, the plaintiff was reporting great difficulty with the wrist to those involved in his treatment from 2010. He even complained more of the left wrist to a medical practitioner who was examining his right elbow in early 2011, and it was the clear diagnosis of the defendant’s medico-legal examiner, Mr Battlay, as early as April 2011. More recently, temperature changes and consistently measured loss of grip strength and stiffness of the fingers have been observed. I accept the recent opinions of the hand surgeon, Mr Damien Ireland, Mr Blombery and Dr Middleton, that this condition is the cause of his left wrist and hand problems. I am satisfied also that the condition is long term, in the sense that no significant improvement is expected according to the medical examiners, and also having regard to the fact that it has already persisted for five-and-a-half years or so.
49 Having identified the injury, I must now also be satisfied that it results in a long-term impairment of the left upper limb which, in its consequences, satisfies the “very considerable” test.[41] After reviewing the whole of the evidence, I am satisfied that the impairment or loss of body function of the plaintiff’s left upper limb consequent upon the fracture and derangement of the joint, and the Reflex Sympathetic Dystrophy which followed, is “long term” and “serious” in the required sense. It is “more than significant or marked” and is such as to be regarded as “at least very considerable” after making the required comparison.
[41]Humphries & Anor v Poljak [1992] 2 VR 129, and a great many decisions since in the Court of Appeal, explain the test to be applied
50 That the left wrist has been his biggest problem since soon after his employment with the defendant ended has been the consistent theme of the plaintiff’s presentation to doctors, whether treating or medico-legal. The diagnosis of Reflex Sympathetic Dystrophy, or CRPS Type 1, was made by Mr Battlay as early as 2011, and the plaintiff has had little treatment for it because of difficulty with his WorkCover claim since that time. The plaintiff has displayed a weakness of the left-hand grip that has been consistent on repeated testing and between medical examiners, and temperature changes have been recorded by a number of the doctors whose opinions I have set out. The plaintiff’s account of persisting pain and disability in the left hand has not been challenged and I accept it. He continues to suffer from restricted wrist movements, inability to make a fist, reduced grip strength, a sensation of tightness, increased pain with use, the experience of coldness and an inability to carry weights. His dexterity is affected and he has difficulty with ordinary everyday two-handed tasks. He still has pain which he rates between five and seven on a scale out of ten (worse with use) and is awoken from sleep when he rolls onto that side.
51 In my view, the loss of the sustained powerful and dexterous use of his left hand is for him a consequence that should properly be regarded as “serious” in the required sense. Even moreso in the case of a man whose functioning of the right upper limb is also impaired, is the unimpaired function of the other limb. For him, the impairment of the function of his non-dominant hand is, in my view, all the more grave because of the difficulties that persist with his right arm.
52 Whilst it was submitted that his work capacity was already lost to him because of the pre-existing conditions which were explored at some length in the course of the hearing, it remains the fact that he had returned to work that required the use of both of his hands and had been doing that work for around a month when the fall occurred. Up until this point, the plaintiff’s history was of relatively stoic and rapid return to farm work (though restricted) after each operation. True it is that he did so with some difficulty, but it is my view that whatever capacity he had for continuing work in his lifelong field of manual work was lost to him as a result of the fall. In making that finding I have been conscious of the fact that his capacity for unrestricted heavy manual work was probably already damaged and permanently so, and that a number of the recreational activities and domestic problems were also compromised by the pre-existing conditions. Nevertheless, it is my assessment that the pain and restrictions which are directly attributable to the impairment of the left wrist, evaluated in his particular circumstances, are “at least very considerable”.
Order
53 The plaintiff is granted leave pursuant to s93 of the Act to bring a proceeding for recovery of damages in respect of the serious injury to his left upper limb sustained on 13 November 2009.
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