Peak Engineering & Anor v McKenzie
[2014] VSCA 67
•9 April 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2012 0224
| PEAK ENGINEERING PTY LTD | |
| First Appellant | |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Appellant |
| v | |
| TONY PAUL McKENZIE | Respondent |
---
JUDGES: | MAXWELL P, REDLICH JA and DIXON AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 25 July 2013 | |
DATE OF JUDGMENT: | 9 April 2014 | |
MEDIUM NEUTRAL CITATION: | [2014] VSCA 67 | |
JUDGMENT APPEALED FROM: | McKenzie v Peak Engineering Pty Ltd & Anor [2012] VCC 1661 (Judge Misso) | |
---
ACCIDENT COMPENSATION – Workers’ compensation – Appeal from grant of leave to bring common law proceedings – Workplace injury – Hand injury – Whether ‘serious injury’ – ‘Pain and suffering consequences’ of injury – Whether ‘more than significant or marked and … at least very considerable’ – Intensity and frequency of pain – Disabling effect of pain – Subsequent injury to knee – Pain and suffering consequences also attributable to subsequent injury – Whether necessary to separate consequences attributable to hand injury from consequences attributable to knee injury – Whether open to conclude that consequences attributable to hand injury satisfied statutory test – Appeal allowed – Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2012) 31 VR 100 applied – Accident Compensation Act 1985 (Vic) ss 134AB(16)(b), 134AB(38)(c).
---
| APPEARANCES: | Counsel | Solicitors |
| For the First and Second Appellants | Mr J P Gorton SC with Ms J M Forbes | Thomsons Lawyers |
For the Respondent | Mr R W McGarvie SC with Ms M Pilipasidis | Ryan Carlisle Thomas |
MAXWELL P:
Summary
It is difficult enough for a judge to decide whether the ‘pain and suffering consequences’ of a workplace injury satisfy the statutory definition of ‘serious injury’. But the task becomes a good deal more difficult when, by the time of the trial, a separate injury is also producing pain and suffering consequences for the claimant. This difficulty arises, for example, where between the time of the relevant injury and the Court’s assessment of its consequences, the claimant sustains a different injury which itself has relevant, and continuing, pain and suffering consequences. The present is just such a case.
The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and … at least very considerable’.[1] For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.
[1]Accident Compensation Act 1985 (Vic) s 134AB(38)(c).
In this case, the original injury sustained by the respondent, Mr McKenzie, was an injury to his left hand. That injury, which he sustained in February 2004 (the ‘2004 injury’), is the subject of this proceeding. Mr McKenzie was employed by the first appellant, Peak Engineering Pty Ltd, at the time of the 2004 injury, but that employment ceased in April 2005.
Mr McKenzie returned to work in mid-2006, having had a medical clearance from his GP for full normal duties. His first job, in car detailing, proved unsuitable because of his hand injury. Mr McKenzie thereafter took up work as a storeman. In April 2008, he was assessed as fit for work without restriction, and obtained full-time employment in a manual handling job. A little over three months later, however, he sustained an injury to his left knee in the course of that work (the ‘2008 injury’).
Both the 2004 injury and the 2008 injury continue to affect Mr McKenzie’s life and activities. He experiences pain as a result of both injuries. At trial, both counsel submitted that it would be necessary for the judge to ‘disentangle’ the consequences of the two injuries. Having done so, counsel submitted, his Honour would need to decide whether the consequences attributable to the 2004 injury satisfied the statutory test.
Mr McKenzie gave evidence, both by affidavit and orally. He had sworn two affidavits in support of his serious injury application with respect to the left hand. He had also sworn an affidavit in support of a separate serious injury application with respect to the knee injury, which had been settled. As will appear, the evidence disclosed significant areas where the restrictions on Mr McKenzie’s activities were attributable to both injuries. For example, he gave evidence that both the knee injury and the hand injury caused pain during the night which affected his sleep.
The judge concluded that he was not ‘required to look at the pain and suffering consequences produced by the plaintiff’s left knee’. The consequences respectively attributable to the two injuries were ‘very different’. In his Honour’s view, the consequences of the 2004 injury to the hand satisfied the statutory test.
The employer and the Authority have now appealed from that judgment, on the grounds that:
(a)his Honour was bound to identify, and exclude, the continuing consequences for Mr McKenzie of the knee injury; and
(b)when the consequences properly referable to the 2004 hand injury were identified, they could not reasonably be viewed as satisfying the statutory test.
For reasons which follow, I would uphold both grounds. The appeal must therefore be allowed and the judge’s decision set aside. It will be ordered instead that the serious injury application be refused.
Factual background
Mr McKenzie was born in March 1969. At the time of the hearing in late 2012, he was aged 43. He lived with his partner and her three youngest children, who were referred to in the evidence as his stepchildren.
Mr McKenzie had been employed by Peak Engineering since 2003, as a storeman and labourer. On 21 February 2004, he was operating a press. A co-worker operated the foot pedal on the press while Mr McKenzie’s left hand was in it. As a result, his hand was crushed by the press. It was some time before it could be released.
Mr McKenzie was taken to hospital for x-ray and observation. There was no fracture. He was subsequently referred to a hand surgeon, Mr Slattery, who saw him in May 2004. Following nerve conduction studies in June 2004, Mr Slattery performed a carpal tunnel release operation in January 2005.
Mr McKenzie returned to work with Peak Engineering on restricted duties two weeks after the incident. He ceased employment with Peak Engineering in April 2005. Mr McKenzie continued to report symptoms, and a further nerve conduction study was performed in August 2005. In October 2005, Mr Slattery carried out a left ulnar neurolosis.
In May 2006, Mr McKenzie was certified by his general practitioner, Dr Kourdoulos, as fit for normal duties. He commenced work with a car detailer. He performed this work for several months but found it too painful because of his hand injury. He then thinks that he registered for work with five different labour hire companies and, in the period 2006–08, did normal storeman work.
In April 2008, Mr McKenzie was medically assessed in connection with his application for a storeman position with Mulford Plastics. The medical examiner noted the 2004 injury and the subsequent operation and then recorded, ‘No current functional deficit’. In the examiner’s opinion, Mr McKenzie was fit for the storeman position ‘without restriction’.
The job with Mulford Plastics involved lifting perspex sheets and operating a forklift. Under cross-examination, Mr McKenzie accepted that it involved lifting perspex sheeting with both hands. It was ‘a normal manual handling job’. He worked full-time, with some overtime.
That was the job Mr McKenzie was performing when he sustained the left knee injury on 4 August 2008. He twisted his left knee when getting out of a forklift truck. As a result, he could not continue in that employment. In March 2009, he had knee surgery.
At the time of the hearing, Mr McKenzie was working as a bar and gaming attendant. His duties involved changing money, bar service and general customer assistance. He was working four days a week but would have worked full-time if the work was available.
The decision below
The judge found that the following pain and suffering consequences were attributable to the hand injury:
·[Mr McKenzie] is a relatively young man of 43 years who is no longer capable of undertaking work which requires the full, free and unrestricted use of his left upper limb. He is now restricted to light work which does not stress or strain his left wrist and hand.
·He has persistent pain, some swelling, loss of grip strength and dexterity. He gave examples of there being occasions when he has not been able to hold coffee cups or a stubby of beer. He has lost control of these objects on these occasions and has dropped them.
·He engaged in relatively modest levels of recreational and sporting activities. He used to engage in social interaction, playing basketball, cricket and football. He does not do so any longer because of the difficulty catching a football and holding a cricket bat. His major recreational pursuits appear to have been going to the pub and playing pool on a weekly basis. Steadying the pool cue with his left hand caused pain.
·He found that changing gears in a manual car with his left hand caused pain in his left upper limb.
·He has problems with grip strength and holding onto objects, for example, when performing maintenance at his home, on his car or on children’s bicycles.
·When his left hand goes numb, it wakes him when he is asleep.
·His capacity to work as a gaming attendant at present is made difficult when he undertakes tasks such as gripping coffee cups when serving coffee to customers or manually handling cups or buckets of coins at the gaming venue where he presently works.[2]
[2]McKenzie v Peak Engineering Pty Ltd [2012] VCC 1661 (‘Reasons’), [32], [38].
His Honour noted that the submission for the employer was that the ‘real’ pain and suffering consequences presently experienced by Mr McKenzie were produced by the knee injury. His Honour then said:
I do not accept that I am required to look at the pain and suffering consequences produced by the plaintiff’s left knee. The pain and suffering consequences produced by the plaintiff’s left upper limb and his left knee are very different. There are very few consequences contended for by the plaintiff which are contributed to by both the injury to the left upper limb and the left knee, save, for example, the interference with the plaintiff’s sleep.[3]
[3]Ibid [34].
His Honour recorded his findings in these terms:
I find that the plaintiff suffered an injury to his left upper limb which has impaired the function of his left upper limb and has produced pain and suffering consequences which meet the statutory test.
I have had regard to a number of decisions of the Court of Appeal which, in a sense, set something of a benchmark which is the guidance for judges at trial.[4] I agree with the observation made by [counsel for the plaintiff] as he concluded his submissions. He essentially submitted that, while the plaintiff’s application is not clear-cut, it bears out the sorts of characteristics referred to in a number of Court of Appeal decisions that are consonant with the methodology applied by judges in this Court in determining whether an application should succeed or fail.
It seems to me that, on this footing, I can accept the plaintiff’s evidence in whole, in that he is a young man who has suffered a permanent impairment of the function of his left upper limb. The duration of the consequences that the plaintiff will have to put up with is significant and much more serious than the consequences for someone of more advanced years.[5]
I think the fact that the plaintiff has suffered each of the consequences which I have summarised … speaks of [pain and suffering] consequences which meet the statutory test. I do not accept that, when those losses are balanced against what the plaintiff has retained, the balance swings against the plaintiff.[6]
[4]His Honour cited Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 (‘Haden Engineering’); Sutton v Laminex Group Pty Limited (2011) 31 VR 100 (‘Sutton’);and Halpin v Wilson Transformer Company [2012] VSCA 235.
[5]His Honour cited Stijepic v One Force Group Aust Pty Ltd v Victorian WorkCover Authority [2009] VSCA 181.
[6]Reasons, [35]–[38].
Consequences attributable to the knee injury
There were, in fact, three grounds of appeal addressing what was said to be his Honour’s failure to address the consequences of the knee injury. The first contended that the ongoing impact of the knee injury provided the ‘context’ in which the consequences of the hand injury had to be assessed. The other two grounds identified a series of evidentiary matters to which regard should have been had.
These points were developed in the written submission, which contended that his Honour had failed to make any of the following findings of fact, namely, that the knee injury:
·continued to be painful;
·was the condition for which Mr McKenzie had been prescribed Panadeine Forte;
·caused problems with kneeling, squatting, crouching and walking;
·was causative of his inability to work as a storeman, to engage in bushwalking and to participate in housework; and
·was the condition for which he had been prescribed anti-depressant medication and received counselling.
In my respectful opinion, these grounds must be upheld. In a case of this kind, where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury. The matters identified in the previous paragraph were all directly relevant to the enquiry in the present case, and needed to be addressed squarely.
It is possible to imagine a case where the consequences of the original injury are so clearly separate and distinct from the consequences of the subsequent injury that no ‘disentangling’ is necessary.[7] But this was not such a case. As the appellants pointed out, there was evidence indicating that certain of the pain and suffering consequences which his Honour regarded as relevant were attributable to the knee injury as well as to the hand injury.
[7]There have also been cases where ‘disentangling’ as between multiple injuries is unnecessary because each injury is, on its own, clearly compensable. See, eg, Purkess v Crittenden (1965) 114 CLR 164; Watts v Rake (1960) 108 CLR 158.
The first was the effect on Mr McKenzie’s social activities. His Honour said:
His major recreational pursuits appear to have been going to the pub and playing pool on a weekly basis. Steadying the pool cue with his left hand caused pain.
Mr McKenzie had said as much in his evidence. But the cross-examination revealed that the knee injury also directly affected this activity. Attention was — quite properly — drawn to the following statement in Mr McKenzie’s affidavit (in support of the serious injury application with respect to the knee injury):
I find that my knee injury makes it difficult for me to perform any activity which requires prolonged standing, kneeling, squatting, crouching or walking.
Under cross-examination, Mr McKenzie agreed that playing snooker did involve standing for a prolonged period, and that leaning forward to play a snooker shot did put stress on his knee. He went on:
But that was prior — I am talking about prior to my knee I used to go and play pool and go to the pub. We’re talking about now, I don’t do anything now.
Q: So prior to your knee injury you’d go to the pub?---Yes.
Q: Prior to your knee injury you’d play pool?---Mm’hm.
Q:But it’s the knee injury that stopped you going to the pub and stopped you playing pool?---No, the hand stopped me from going to the pub and playing pool.
Plainly, these were conflicting answers. Mr McKenzie first said, quite clearly, that he had continued to go to the pub and play pool until he suffered the knee injury. Then, when pressed, he maintained that it was the hand injury which had stopped him doing it. Given his Honour’s view that the impact on this recreational activity was attributable to the hand injury, it was necessary in my opinion to make findings about whether, and to what extent, the knee injury had also contributed. On Mr McKenzie’s own evidence, it seems most likely that it was a significant contributor.
There is a related point, concerning Mr McKenzie’s disinclination to take part in social activity. In his first affidavit, Mr McKenzie said, ‘After injuring my left arm, I was much less active and put on weight. I also became much less social. When I am in pain, I do not feel like socialising’. Under cross-examination, it was put to Mr McKenzie that it was his difficulties with prolonged standing and walking which made him less interested in going out to socialise. He said, ‘I might say — I mean, yes and no. It depends what sort of mood I’m in’.
Mr McKenzie maintained, nevertheless, that the hand injury had affected his socialising, ‘I don’t spend time out with people, I’d rather stay at home’. When it was again put to him that this was because of problems with standing and walking, Mr McKenzie said, ‘No. I don’t do much socialising. I used to go to the pub with my friends but I don’t do that anymore’. He attributed this to his inability to play snooker.
It is clear from this evidence that the decline in Mr McKenzie’s social life was attributable to several factors, namely:
·the disabling effect of his sore hand on his ability to play pool;
·the disabling effect of his painful knee on his ability to walk to the venue, and to remain standing during a prolonged game of pool; and
·the adverse impact of pain — from both knee and hand — on his mood (‘[w]hen I am in pain, I do not feel like socialising’).
In my respectful opinion, no conclusion could be drawn about the significance in this respect of the hand injury without analysing this evidence and — so far as possible — assessing the extent to which it was hand pain, rather than knee pain, which had caused the reduction in socialising.
Loss of capacity for work
As noted above, the judge identified as a relevant consequence of the hand injury that Mr McKenzie was
no longer capable of undertaking work which requires the full, free and unrestricted use of his left upper limb. He is now restricted to light work which does not stress or strain his left wrist and hand.
Before the judge, counsel for Mr McKenzie submitted that his loss of ability to work ‘in unrestricted employment’ was Mr McKenzie’s most significant loss referable to the hand injury. According to the submission ‘the fact that he can’t work as he [formerly] chose to do in heavy work was the most serious consequence for him’.
The appellants submitted that his Honour’s approach impermissibly brought to account, in an application based on pain and suffering consequences, matters properly referable to loss of earning capacity consequences. In an application of this kind, it was said, loss of the ability to do ‘unrestricted’ work was an irrelevant consideration.
The appellants drew attention in this context to certain passages from my judgment in Haden Engineering,[8] which were said to be erroneous. They were said to ‘permit loss of earning capacity consequences per se to be considered as part of the assessment of pain and suffering consequences’. The relevant passages were as follows:
In its accepted interpretation, the ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. (I will refer to the second element as ‘the disabling effect’ of the pain.)
…
As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed ha[s] been closed off to [him or her]’.[9]
[8](2010) 31 VR 1.
[9]Ibid 4 [9], 5 [15] (citations omitted).
The submission must be rejected. It is based on a misreading, as Osborn and Beach JJA made clear in rejecting the same argument in the matter of Ellis Management Services Pty Ltd v Taylor:[10]
In our view, the passages referred to are unimpeachable: they deal with pain and suffering aspects of the inability to engage in work activities, rather than economic loss consequences per se.
[10][2013] VSCA 326, [39].
The appellants accepted — correctly — that a loss of capacity for work was capable of illustrating pain and suffering consequences. According to the written submission:
For example, there may be evidence in a particular case that someone used to obtain great enjoyment from a field of work now denied to him or her, or suffers pain at work, or suffers from a loss of self-esteem or loss of social interaction as a result of an inability to engage in employment. Further, difficulty performing a work task may be illustrative of a particular impairment of function described. However, when such consequences are considered, it is the pain and suffering and loss of enjoyment of life associated with the loss of earning capacity, rather than the loss of earning capacity itself, which is relevant.
As Tate JA noted in Hawkins v DHL Express (Australia) Pty Ltd,[11] it is well established that investigation of the disabling effect of the pain experienced by the claimant properly extends to considering ‘the extent to which the pain limits the [worker’s] physical functioning, and interferes with the [worker’s] enjoyment of life’.[12]
[11][2013] VSCA 26, [63]. See also [72].
[12]Haden Engineering (2010) 31 VR 1, 5 [14].
In this case, as the appellants pointed out, Mr McKenzie said nothing to indicate that his inability to do heavy manual work was a matter of significance to him. Nor was there any evidence to suggest that there were particular occupations for which his hand injury had rendered him medically unfit. On the contrary, as appears from the chronology, there was no material difference between his pre-injury and post-injury employment.
Before the hand injury, Mr McKenzie was working as a storeman and labourer. Following the unsuccessful venture into car detailing, he was again working as a storeman for labour hire companies. At the relevant time — immediately before the knee injury — he was working full-time in a manual handling job. No submissions were made to suggest that working on a forklift, and handling perspex sheeting, was materially ‘lighter’ work than the work he had been doing before the hand injury.
The submission for Mr McKenzie on appeal was that this inquiry could properly take into account occupations which he might have been able to follow but which the injury would prevent him from pursuing should he choose to do so. This was said to include occupations in which he had never expressed interest and which he had neither planned nor trained to undertake. That submission must be rejected.
In Aburrow v Network Personnel Pty Ltd,[13] the Court (Maxwell P and Tate JA) described as ‘unimpeachable’ a passage from the reasons of the trial judge which included the following:
In terms of the expressed desire to be a boner, at most, he appeared to be engaging in some boning ‘on the side’ with the defendant. It is also highly significant that, notwithstanding a varied work history, the plaintiff had not engaged in any boning between 1988 and 2005. Given his own apparent disinterest in boning over many years, I therefore do not accept that any inability to bone would really be of importance to the plaintiff.[14]
[13][2013] VSCA 46 (‘Aburrow’).
[14]Ibid [33] (emphasis added).
Mr McKenzie also relied on a statement in Kelso v Tatiara Meat Co Pty Ltd,[15] that the injured worker’s ‘incapacity for work in the meat industry (to which he was accustomed and repeatedly returned)’ was relevant to the assessment of pain and suffering consequences. In other words, the loss of a chosen occupation is a relevant pain and suffering consequence. For reasons already given, however, that is not this case.
[15](2007) 17 VR 592, 629 [197].
In summary, then, Mr McKenzie was entitled to rely on, and the judge was bound to take into account, any narrowing in the range of employment options open to Mr McKenzie after the hand injury, but only to the extent that this narrowing was probative of:
·the nature of Mr McKenzie’s experience of pain as such; or
·Mr McKenzie’s loss of enjoyment of life, relevantly because of his inability to engage in an occupation which he had previously enjoyed.
Was the finding of serious injury open?
It was accepted by the parties to the appeal, as it had been by the trial judge, that the framework suggested in Haden Engineering, and subsequently applied in Sutton[16] and Aburrow, was appropriate for evaluating the evidence in this case. Indeed, in a supplementary submission, counsel for Mr McKenzie helpfully summarised the evidence under the HadenEngineering headings. I deal with them accordingly.
[16](2012) 31 VR 100.
The claimant’s experience of pain as such
The Court must assess the intensity of the pain which the claimant experiences and — unless the pain is constant — the frequency and duration of the pain episodes.[17] In this case, there was very little evidence suggesting that the pain which Mr McKenzie was experiencing as a result of the hand injury was of any real severity. His answers under cross-examination are illustrative:
·‘It does get sore’;
·‘I found it hurt’ (when used to steady the pool cue);
·‘It gets numb and wakes me up’; and
·‘It was still sore’ when he was performing storeman duties in 2006–8.
[17]Haden Engineering (2010) 31 VR 1, 4 [10].
The report of Mr Shannon, prepared shortly before the trial, was to similar effect:
He describes persistent swelling and tightness in the hand, although there is not much pain. The hand gets a bit sore with activity.
…
[T]he hand is currently sore.
…
[H]is symptoms are now more of an ache and intermittent rather than chronic and constant.
Conversely, Mr Roger Westh, an orthopaedic surgeon called by Mr McKenzie, reported in July 2012 as follows:
Mr McKenzie says his main trouble is the swelling in his left hand. He also describes ongoing pain in which he had difficulty describing and it appeared to be mainly on the back of his hand extending up to his elbow. … He describes a constant pain in his hand which he says he approximates to be 8/10 three times a week and on a good day he rates the pain at 3/10. He says the pain is worse with activity.
Since the 2004 injury, Mr McKenzie has undergone two operations on his left limb: a carpal tunnel decompression on 22 January 2005 and a left ulnar neurolysis on 17 October 2005. But, according to Mr McKenzie, neither proved successful. The surgery was followed by physiotherapy treatment. On 24 September 2012, Mr McKenzie deposed that he had now
ceased any active hands-on treatment. As I understand it, there really is no treatment for my hand injury other than to try to manage how I use my hand and to take pain killers as needed. For my hand injury I now regularly take Panadeine tablets. I had been taking Panadeine Forte for my hand pain, but that caused constipation and so I now limit the medication to Panadeine.
At trial, Mr McKenzie was cross-examined on his use of Panadeine Forte for pain relief. Counsel for the appellant put to him that the medication was mainly for the pain in his knee. His affidavit evidence, and evidence at trial, was that he took Panadeine Forte for both his hand and his knee. But the medical reports support the appellants’ submission that ‘[t]he level of hand pain was insufficient to cause the need for prescription medication’, and that the Panadeine Forte was prescribed for pain in Mr McKenzie’s knee. Mr McKenzie conceded in cross-examination that his general practitioner had not prescribed pain relief medication for his left hand for many years. The appellants also point out that, when he consulted Dr Kourdoulos in 2012 for the purposes of medico-legal reports, Mr McKenzie did not mention the pain in his left arm.
Mr McKenzie deposed that the level of pain in his left hand and arm ‘fluctuates’. While at work, the continued use of his arm caused him pain but he would ‘push on’, because he needs a job to support his family.
The disabling effect of the pain
According to Mr Westh’s report of July 2012, Mr McKenzie is ‘restricted in relation to employment or related activities’. He is unable to perform his pre-injury duties. Mr Westh wrote that Mr McKenzie had ‘only slight restriction of movement in his wrist’. He had ‘limited manual dexterity in his left hand and is restricted in the strenuous and repetitive use of his left hand’.
According to Mr Shannon’s report of September 2012, Mr McKenzie
has slight limitation of his fingers … weakness of grip and some loss of dexterity so that he would be limited in the performance of activities involving strenuous or repetitive use of his left hand and arm. He does not require further specific treatment and his condition has stabilised.
Mr Shannon doubted the diagnosis of either regional pain syndrome Type I or chronic pain syndrome. In his view, Mr McKenzie’s symptoms ‘are now more of an ache and intermittent rather than chronic and constant’.
In her report dated 29 September 2012, Ms Kelly, a hand therapist, wrote that ‘[w]rist flexion was the most restricted and painful movement, with some deterioration on 2009 measurements’. She found, however, that the left elbow had normal flexion with the right elbow (although there was pain on both flexion and extension); there was an overall improvement of movement in the left finger joints with an overall restriction as compared to the right hand. While Mr McKenzie reported tightness and pain on stretching, his shoulder ‘appeared to have normal range’ of movement. Further, Ms Kelly noted that Mr McKenzie’s bilateral power grip strength had deteriorated significantly since 2009 but there was improvement in fine grip strength in his left hand, although his left hand remained weaker than the right in this regard.
In September 2006, Mr McKenzie’s general practitioner cleared him for full-time duties to enable him to work in car detailing. He ceased working in this industry because, according to his evidence under cross-examination, using the grinder for cutting and polishing aggravated the pain in his left arm. He now works as a gaming attendant, which involves ‘changing money, bar service and general customer assistance’ for approximately 32 hours every week. He deposed that he can undertake many of his employment duties with his right hand but that he experiences pain with repetitive use of his left arm.
In Mr Westh’s opinion, Mr McKenzie was undertaking the duties of his current role ‘satisfactorily’. Were it not for the knee injury, Mr Westh said, Mr McKenzie could ‘probably do normal hours of work’. Mr Shannon agreed that he could be undertaking full-time work, although ‘this would depend on the specific tasks involved at the particular venue’.
At trial, Mr McKenzie gave evidence that his hand would become numb and wake him up two or three times every week. He conceded under cross-examination, however, that his knee was also a cause of him waking at night. He has now ceased driving a manual car, due to pain in his left hand from changing gears. Driving the 40 minute trip from home to his place of work also caused him pain.
I referred earlier to the evidence regarding the decline of Mr McKenzie’s social life, and the contribution of both injuries to this relevant consequence. Mr McKenzie finds woodworking difficult and, as a consequence, does less of this activity. His partner now undertakes most household duties, such as vacuuming and mopping. But he conceded that ‘some’ of his problems in undertaking these domestic activities were also related to his left knee injury.
Mr McKenzie finds shaving his head difficult and requires assistance in this aspect of self-care from his partner. He has trouble gripping items, such as coffee cups or beer glasses, and sometimes they will simply fall out of his hand, causing him embarrassment in front of friends.
It was submitted for Mr McKenzie that the 2004 injury had ‘caused a significant reduction in his enjoyment of life’. The affidavit sworn by Mr McKenzie’s partner, Ms Melanie Melbourne, deposed that Mr McKenzie was ‘despondent and depressed’; had withdrawn socially; and had difficulty sleeping. Like Mr McKenzie’s affidavit, however, Ms Melbourne’s did not clearly distinguish between the pain and suffering consequences referable to the 2004 injury and those referable to the subsequent injury to his left knee.
As in Aburrow,[18] the evidence in this case may be contrasted with that given by the claimant in Haden Engineering. There, the relevant pain and suffering consequences were that:
[18][2013] VSCA 46.
·the claimant experienced constant pain;
·the pain was with him when he woke up in the morning, and got
progressively worse during the day;
·his pain interfered with his work and obliged him to rest, for up to five to 10 minutes, four to five times a day; and
·the pain interfered with his sleep, such that he would often ‘wake up … three to five times during the night because of the pain’.
Conclusion
So far as the evidence enabled the consequences of the hand injury to be identified and evaluated, the evidence as to Mr McKenzie’s experience of pain was consistent with the evidence as to its effect on his life, both in relation to his work and in relation to ordinary daily activities. The consequences were moderate by comparison with the consequences of ‘other cases in the range of possible impairments’. They might perhaps have been described as ‘significant’ or ‘marked’, but certainly not more than that.
It follows, in my view, that the pain and suffering consequences of the 2004 injury could not reasonably be viewed as ‘at least very considerable’ or as ‘certainly more than significant or marked’.
REDLICH JA:
I agree with Maxwell P
DIXON AJA:
I have read, in draft, the reasons of the President. I agree with him that the appeal should be set aside and the respondent’s serious injury application should be refused.
- - -
354
6
0