Murray v Electrolytic Zinc Company of Australasia Ltd

[1987] TASSC 110

Serial No B40/1987
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Murray v Electrolytic Zinc Company of Australasia Ltd [1987] TASSC 110; B40/1987

PARTIES:  MURRAY
  v
  ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LTD

FILE NO/S:  WC 386/1987
DELIVERED ON:            7 October 1987
JUDGMENT OF:              Nettlefold J

Judgment Number:  B40/1987
Number of paragraphs:  13

Serial No B40/1987
List "B"
File No WC 386/1987

MURRAY v ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LTD

REASONS FOR JUDGMENT  NETTLEFOLD J

7 October 1987

1. The final view I have formed in this case is in favour of the plaintiff.

1. Because the medical problem involved is complicated by the effects of the head injury suffered in 1968, it is important to give close attention to the evidence of Dr Yeo and Mr Duffy.

1. Dr Yeo saw the plaintiff on 1 September last. The plaintiff gave a history of knocking his right elbow very hard on a wall while at work and sustaining some injuries to the elbow joint. Despite physiotherapy and medication the symptoms had not improved and, subsequently, Mr Binns carried out an operation on the elbow for an excision of the olecranon bursa. After the operation the plaintiff continued to complain of pain and stiffness and had about 40 visits for physiotherapy. There was no improvement and he continued to complain of severe pain of the elbow joint, cramps of the forearm muscles, stiffness of the fingers and pins and needles of the thumb and index finger and had difficulty looking after his own personal needs like showering and pulling on a jumper and for those chores he had to rely very much on his wife.

1. Dr Yeo explained that, given the brain damage in the fall in 1968, and given the fact that there has been no further brain damage since that time, the degree of mild spasticity from which he suffers is likely to have remained constant at all relevant times. And, more particularly, it would not have been increased by a localised trauma to the elbow.

1. Dr Yeo was of the opinion that the elbow pain, of which the plaintiff complained, was directly attributable to the injury to the elbow while at work in October 1986. He did not feel that the plaintiff was fit to work as a cleaner. Dr Yeo attributed that incapacity mainly to the pain of the elbow joint.

1. Mr Duffy gave evidence that, on the history he had and on the information Mr Binns gave him, he attributed the plaintiff's incapacity for work to the work related injury of October 1986. When Mr Duffy last saw the plaintiff on 29 July last he felt he was still having pain in his elbow and, because of that, he would not be able to get back to work that entailed reasonably vigorous use of the elbow. Asked "Would you agree with the proposition that, if Mr Murray had not had an elbow injury, he would still be working at the same level of efficiency as he was prior to the elbow injury?" Mr Duffy replied "Yes".

1. In a report of 27 June last Mr Duffy said "he continues to have a degree of pain in the elbow which in itself would probably preclude him from returning at the moment to vigorous physical activity but as far as the spasticity in his arm is concerned, I believe he would be capable of returning to his work".

1. Mr Duffy was of the opinion that, presumably, the level of spasticity on examination was no different from what it was prior to October 1986. There is no reason why it should be permanently significantly any worse. He did not believe that the spasticity would be made worse by localised trauma to the elbow.

1. Mr Duffy said that, assuming freer arm movements before the accident of October 1986, the medical explanation would be some actual physical problem at the elbow itself. There is no logical explanation as far as spasticity is concerned as to why it should be less than it was before. It would need to be a mechanical problem related to the elbow itself.

1. Mr Duffy emphasised that he is not a specialist on the subject of elbow injuries and that he was dependent on the plaintiff for the degree of pain the latter suffered.

1. Mr Binns was the plaintiff's treating surgeon. He said that the plaintiff did not get better with aspiration of his bursa and a cortisone injection. The elbow continued to worry the plaintiff so he excised the enlarged bursa. Since the operation the plaintiff has been back to see Mr Binns five or six times. But there has been no change in his condition. On last examination the plaintiff complained that his elbow remained painful, there was a lot of things he could not do with his arm and it remained stiff. On that occasion Mr Binns formed the opinion that the plaintiff was incapacitated for work as a cleaner.

1. The critical issue in the case boils down to the question whether the plaintiff is an honest and reliable witness of his symptoms. If he is he should succeed. A close study of the transcript leaves me with the same impression I had at the end of the hearing. That clear impression is that both the plaintiff, Mr Murray and his wife, Mrs Murray, are honest and reliable witnesses. That being so, the plaintiff must succeed. The plaintiff is a sincere man who would like to go back to his work but he cannot do that because of the condition of his elbow. He has suffered a substantial amount of treatment in the hope of getting back to work but, unfortunately, the treatment has not produced the result he sought.

1. I should add that I accept the medical evidence summarised above. And, of course, I do not accept any medical evidence in conflict with it.