Pinkerton v Bunnings Group Limited

[2012] VCC 894

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted

AT MELBOURNE

CIVIL DIVISION

DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No. CI-09-06154

EDMUND PINKERTON	Plaintiff
v
BUNNINGS GROUP LIMITED	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	29 and 30 November and 1 December 2011
DATE OF JUDGMENT:	13 July 2012
CASE MAY BE CITED AS:	Pinkerton v Bunnings Group Limited & Anor
MEDIUM NEUTRAL CITATION:	[2012] VCC 894

REASONS FOR JUDGMENT

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Catchwords:  ACCIDENT COMPENSATION – Accident Compensation Act 1985, as amended – s134AB(37)(a) and (c) – serious injury – right hand injury – Chronic Regional Pain Syndrome – Complex Regional Pain Syndrome Type 1 – whether “serious injury” under paragraph (a) or (c) – credit.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C W R Harrison SC with Mr N J Dunstan	Slater & Gordon Ltd, Lawyers
For the Defendants	Mr C A Miles	Wisewould Mahony

HIS HONOUR:

Introduction

1 By way of Originating Motion dated 22 December 2009, Edmund Pinkerton (“the plaintiff”) seeks leave, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”), to bring common law proceedings to recover damages for a right-hand/lower arm injury and consequential psychiatric injury suffered by him on or about 28 February 2006 (“the injury”) during the course of his employment with Bunnings Group Limited (“first the defendant”).

2       The plaintiff seeks leave to bring proceedings for “pain and suffering damages” only within the meaning of s134AB(37) of the Act.

3       The plaintiff, the treating psychiatrist, Dr Bethany Whitehouse, and the rehabilitation and pain specialist, Dr Clayton Thomas, gave evidence and were cross-examined.  Each party tendered a large number of documents.[1]

[1]See Annexure “A”

Relevant Legal Principles

4       The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]

[2]See s134AB(19)(a) of the Act

5       The plaintiff relies on paragraphs (a) and (c) of the definition of “serious injury” contained in s134AB(37) of the Act.

Those paragraphs read:

“Serious injury means –

(a)         permanent serious impairment or loss of a body function; or

…

(c)permanent severe mental or permanent severe behavioural disturbance or disorder; … “.

6       The part of the body said to be impaired for the purposes of paragraph (a) is the right hand/lower arm.

7       The mental behavioural disturbance or disorder for the purposes of paragraph (c) is described variously as a Regional Pain Syndrome, a Chronic Pain Syndrome or Major Depression.

8       In order to succeed the plaintiff must prove on the balance of probabilities that:

(a) “the injury” suffered by him arose out of, or in the course of or due to the nature of, his employment with the first defendant on or after 20 October 1999;[3]

(b)“the injury” and the resulting impairment (paragraph (a)) and/or the mental behavioural disturbance or disorder (paragraph (c)) must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”.[4]

(c)the “consequences” to the plaintiff of the right hand/lower arm impairment in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked and as being at least very considerable”.[5]

(d)the “consequences” to the plaintiff of the mental or behavioural disturbance or disorder in relation to “pain and suffering” must be “severe” – that is, “when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, be fairly described as being more than serious to the extent of being severe”.[6]

[3]See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]

[4]See Barwon Spinners (op cit) at paragraph [33]

[5]See s134AB(38)(b) and (c) of the Act

[6]See s134AB(38)(b) and (d) of the Act

9       In determining the application, the Court:

(a)must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[7]

(b)may take into account the physical consequences of a mental or behavioural disturbance or disorder only for the purposes of paragraph (c) of the definition of “a serious injury”;[8]

(c)must make the assessment of “serious injury” at the time the application is heard;[9]

(d)notes that it has been observed that the question of whether any injury satisfies the definition of “serious injury” is largely a question of impression and value judgment;[10]

(e)must give reasons which are as extensive and complete as the Court would give on the trial of an action, and in so doing, disclose the pathway of reasoning in dealing with the evidence and the issues raised by the applications.[11]

[7]See s134AB(38)(h) of the Act

[8]See s134AB(38)(i) of the Act

[9]See s134AB(38)(j) of the Act

[10]See Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52 at paragraph [98]

[11]See s134AE of the Act and Church v Echuca Regional Health (2008) 20VR 566 at paragraphs [89]-[92]

The Issues

10      Counsel for the defendants informed me that there was no issue that the plaintiff suffered an incident of injury on 28 February 2006 which probably involved minor soft tissue injury to the right wrist.  Furthermore, the defendants assert that on the available medical material, it is unlikely that the plaintiff suffers from the condition of Complex Regional Pain Syndrome Type I (“CRPS1”) and to the extent that the plaintiff suffers a Regional Pain Syndrome or Chronic Regional Pain Syndrome, such a diagnosis is very dependent on the plaintiff's credit and version of events.  Furthermore, even to the extent that he may have such a condition, such condition does not meet the statutory test.

The Evidence of the Plaintiff

11      The plaintiff gave evidence that he had read his three affidavits that morning and, subject to some minor corrections, the contents of such affidavits were “correct”[12] and he adopted them.[13] 

[12]T20, L10-12

[13]The plaintiff corrected paragraph 4 of his first affidavit sworn 28 August 2009 (see page 16 PCB), in that he commenced to work with the first defendant at the Northland branch in Preston rather than the branch in Eltham.  At the Northland branch he worked in the nursery and garden section and after about seven years he transferred to the Eltham branch where he worked in the garden and leisure divisions.  He further explained that the reduction in hours described in paragraph 5 of the same affidavit was brought about to enable him to deal with the recent separation from his then wife and to enable him to share the care of their daughter.  Furthermore, he explained that when he talks about his “intention to return to full-time employment” in paragraph 5 of the same affidavit, it was his intention to return to full-time employment when his daughter was old enough to attend to get herself to school which he considered would be about thirteen or fourteen years of age.

12      The plaintiff also clarified his evidence given in paragraph 21 of his affidavit sworn 28 August 2009, viz “… I also cannot now manage to launch my boat on my own” to mean that the preparation for such a trip, cleaning everything and bringing it all to the actual boat, which is a 4-metre aluminium boat, would be difficult.  The plaintiff gave evidence that what he wished to convey by that evidence is that the actual physical launching of the boat may be within his capacity but preparing the boat and using the boat was beyond his capacity.

13      The plaintiff also gave evidence that he joined the Greensborough Angling Club so he could meet other people keen on fishing who would be able to come with him and assist with those activities he found difficult.  He went on two trips and on both times with the same friend and another man as well.  He had not continued that activity because:

A:“Meetings were every Thursday night and they were every second Thursday night.  There were some nights where I just didn’t feel up to attending the meetings or I wasn’t able to go due to stomach cramping, that type of thing, feeling sick, so I – I kind of needed to go to every meeting to organise with other – other members on you know, the trips that we would go on, who would go and who you’d be with.

Q:What type of fishing do you prefer?---

A:Mostly lure fishing and trolling of lures on freshwater lakes and I have great difficulty now doing those, those forms of fishing.

Q:Why?---

A:Lure fishing requires constant casting and movement and I feel that I’m – I experience a lot of pain with that repetitive effort.  With trolling, the boat being a right-hand drive boat, I need to hold the rod out to the right with – with – and the pressure of holding that rod on my wrist is too great.”[14]

[14]T18, L14-31

14      The plaintiff also gave evidence that he currently takes 105 milligrams of OxyContin per day (50 milligrams in the morning and 55 milligrams in the evening).  He is trying to slowly cut down on the use of OxyContin but finding that “very difficult”.  He also takes OxyNorm, which he takes mostly in the evening and on average about one or two tablets every three days.  Such tablets consist of 20-milligram doses.

15      The plaintiff also takes three Dothep tablets of 75 milligrams each, which he believes is an anti-depressant and assists him getting to sleep.  He also uses Voltaren gel on a daily basis, together with about six Osteo Panadol a day to alleviate pain.

16      He also takes various other tablets to deal with the side effects of the OxyContin – such side effects include constipation and stomach cramping.

17      The plaintiff also gave evidence that he was initially prescribed OxyContin by Mr Will Howard, the surgeon at the Austin Repatriation Hospital, some twelve weeks or so after the injury, and has been taking such drug for over six years.  The initial dosage was 10 milligrams and the dosage has built up over the years.  He has been taking OxyNorm for about four and a half years and again, this drug was initially prescribed by Mr Will Howard.  His psychiatrist, Dr B Whitehouse, prescribes the anti-depressive and his general practitioner, Dr Mason, prescribes the other tablets.

18      He has been under the care of Dr Mason for about four and a half years although that doctor had treated him when he was younger.

19      By way of his first affidavit[15] the plaintiff gave the following evidence:

[15]See Exhibit 1 at page 16 PCB

·        He is a forty-two year old (born 18 October 1969) single man who has a fourteen year old daughter.

·        After completing Year 12 in 1988 at Eltham High school, he completed an Advanced Certificate in Horticulture at the Gold Coast Institute of TAFE.  That qualification permitted him to work in nurseries and thereafter, he worked in outdoor maintenance and hospitality in Queensland before returning to Melbourne where again he was employed in outdoor maintenance, together with working as a part-time waiter.

·        He commenced employment with Bunnings at Northland in March 1997.  After the separation from his wife, he reduced his full-time hours to twenty-five hours per week in order to enable him to deal with the separation and share the care of his daughter.  In 2006, he was earning approximately $30,000.00 gross per annum.

·        He describes the occurrence of “the injury” on 28 February 2006 in the following terms:

“… I was working at the Bunnings store in Eltham.  I was counting elevated stock using a machine that was called a ‘wave machine’.  The wave machine was a platform on an hydraulic lift mechanism, which enabled the platform to automatically ascend or descend.  Much in the Bunnings warehouse in Eltham had a ceiling that was lower than the maximum elevation of the wave machine.  There was also an elevated air vent that ran along the side of the lower section of the warehouse ceiling.  I was counting stock in that area.  Whilst doing so, my right elbow struck the air vent and caused my thumb to jamb on the button that elevated the platform.  The platform raised and crushed my right wrist and forearm between the machine and the air vent.  I was trapped in that position for some time.  A staff member came to my assistance, but was unfamiliar with the machine and could not operate the emergency release button.  I estimate that I was trapped for twelve or fifteen minutes before another staff member used a piece of wood to push the vent out of the way so that I could free my arm out.”[16]

[16]See Exhibit 1 at page 18 PCB.

·Attending ambulance officers advised him to attend a general practitioner and he consulted Dr Hooper at the Eltham Medical Clinic.  Dr Hooper arranged x-rays which showed no bone damage.

·He had a few days off work after the injury but continued to experience pain in his right wrist and forearm.  Dr Hooper referred him for physiotherapy.

·Because of the lack of improvement, he sought a second opinion from the general practitioner, Dr Younan Tossoun, who in turn referred him to the orthopaedic surgeon, Mr Pullen.

·He consulted Mr Pullen on 17 May 2006 and at that time Mr Pullen had arranged for him to undergo an MRI scan of his right wrist on 25 May 2006.  Later, Mr Pullen referred the plaintiff to the hand surgeon, Mr David McCombe.

·Mr McCombe recommended he undergo a pain management program and in August 2006, he attended Dr Will Howard at the Pain Management Clinic at the Austin Hospital.  Dr Howard arranged for him to undergo a series of nerve blocking injections and, ultimately, Dr Howard referred him to a pain management specialist, Dr Terence Lim, at Olympia Hospital.

·He saw Dr Lim in March 2007 and at that time he commenced to see a psychiatrist, Dr Bethany Whitehouse.

·He underwent a pain management program at the Olympia Private Hospital.

·Since February 2007 he has attended the general practitioner, Dr Mason, who is closer to his home (and who had been his doctor in his younger days).  He attends Dr Mason once every twenty eight days and continues to attend Dr Whitehouse regularly.  He has not seen Dr Lim since completing the pain management program in 2007.

·He continues to have pain in his right hand, wrist and forearm and at times the pain extends up his arm into his right shoulder and neck.  The pain varies in intensity.

·He takes prescribed medication consisting of OxyContin, Cypramil (an anti-depressant) and, at times, Serequil to help him sleep.

·He continued working with the first defendant until December 2006, at which time he resigned because of ongoing significant pain in his right hand causing him to struggle with his work.

·He is currently receiving a Disability Pension.

·He has not worked since resigning from Bunnings, although he was referred to Nabenet, which gave him some general advice about job seeking but did not find a job for him.  He has also been referred by Centrelink to a job agency, but nothing has come from that referral.

·He does not like being stuck at home and has applied for jobs as a delivery driver and in sales, although he is not sure whether he would be able to cope with such work.

·He has restricted his range of day-to-day activity and, in particular, has difficulty playing sports and playing with his daughter.  Before the injury, he enjoyed bicycle riding and playing basketball with her.

·Before the injury, he loved fishing and went fishing most weekends.  He has a small boat and went fishing on the bay or, for example, places such as Lake Eildon.  He has tried to go fishing since the arm injury but has found it too difficult.  He has also given up his hobby of camping – it is too hard to put up his tent.

·His pain in his right hand and arm increases by the end of the day and at times the pain interferes with his sleep.

·Before the injury he enjoyed keeping fit and regularly did weightlifting, body surfing and boogie board riding.  He has given up these hobbies and has lost a lot of fitness.

·He is basically restricted in any activity which involves the repetitive use of his right arm.  He still does some day-to-day activity, such as driving a car, taking his daughter to and from school and going to the supermarket.  Often these activities will cause an increase in pain.

·He is naturally left-handed, although the injury to his right arm greatly restricts his range of day-to-day activities.

20      By way of his second affidavit,[17] the plaintiff gave the following evidence:

[17]See Exhibit 1, at page 24 PCB

·He has continued to suffer the symptoms and the effect of his “right arm/Complex Regional Pain Syndrome condition”.

·He continues to attend Dr Mason once a month for a check-up, prescription medication and currently takes OxyContin, OxyNorm, Dothep and Voltaren gel.  He is also prescribed medication for constipation.

·He continues to regularly attend his psychiatrist, Dr Bethany Whitehouse.

·He continues to receive the Disability Pension.

·He would like to work and financially he needs to work, but feels that he is stuck at the moment as he could not return to labouring-type work and he does not have any skills to do clerical work.

21      By way of his third affidavit sworn on 18 April 2011,[18] the plaintiff states, in part:

“Not a day passes without me being reminded of the problems I have in my right arm.  On a daily basis I suffer a constant painful sensation in my right arm.  I feel that the level of pain and discomfort that I have varies over the course of the day and is aggravated by use of my arm.  The pain is often worse at night and I have considerable difficulty sleeping as a result.  The symptoms and effect of my right arm/complex regional pain syndrome condition as set out in my previous Affidavits, has not improved.”[19]

[18]See Exhibit 1, at page 27 PCB

[19]See Exhibit 1, at page 27 PCB

22      He continues to see his general practitioner, Dr Mason, on a monthly basis, his psychiatrist, Dr Whitehouse, about once a month and also continues to be prescribed OxyContin, OxyNorm, Dothep and Voltaren gel.

23      He continues to receive a Disability Pension.

The Cross-examination of the Plaintiff

24      Under cross-examination, the plaintiff gave the following pertinent evidence:

·He accepted that he told both Dr Strauss and Dr Shan that he had no past significant medical or psychiatric history.

·He accepted that he attended the Austin Health for psychological treatment between 26 August 1999 and 7 October 1999 on seven occasions, undergoing cognitive behaviour therapy to deal with the stresses of his separation.

·He also believed that at that time, the specialist did prescribe him something for depression or anxiety and he took that medication for about two weeks.

·He accepted that the events around his separation from his then wife were “acrimonious” involving, amongst other things, access to his daughter.

·He accepted that at the time of the separation, he was resentful of his former wife but considers things have improved since then.

·He accepted that initially, when he had access to his daughter, he was required to pick her up from the Eltham Police Station and, at various stages, his ex-wife had restraining orders against him.

·His daughter now commutes of her own volition between him and the house of his former wife.

·Restraining orders were in effect in 2008 when he attempted to get a job with his brother at Chubb Security.  The existence of such orders prevented him working in that area.

·He applied to reduce his hours on 16 March 2000 which was prompted for family reasons unrelated to his injury.

·He accepted that from 1999 onward he had some personality conflicts at work, although he had a lot of friends at work also.  He was disciplined at work, or spoken to at work, about personality conflicts with other workers, as were the workers with whom he had conflict.

·Other than his psychological counselling in October 1999 associated with his marital difficulties, he received no further psychological counselling or treatment between 1999 and 2006.

·He was working full-time over that period up to around 2000, when in March 2000 he reduced his hours to twenty-five hours a week as his daughter was in kindergarten at that time, and situation continued until his resignation in December 2006.

·After the occurrence of the injury, he was off work for about one month and thereafter, returned to work as the greeter of people entering in the store.  Such work continued until he resigned his employment in December 2006. 

·He gave the following evidence in relation to his resignation of employment:

Q:     “As I understand it, the reason you gave for resigning from the greeting duties which you were doing at Bunnings was just because of pain, not because of any physical problem undertaking the duties?---

A:     That's correct sir.

Q:     Yes and you weren't sacked or anything like that, you just resigned?---

A:     Yes sir on the 11th of December.

Q:     You have not worked since that time?---

A:     No, I have not.

Q:     I don't want to spend too much time on this but you did say that you really only had interpersonal difficulties, personality difficulties, arguments if you like, at work?---

A:     Yes sir.

Q:     After you went to Eltham in 2003?---

A:     That's correct.

Q:     I suggest to you that there are nearly a dozen entries before that, of various conflicts you had at work and Your Honour, I am looking really at Defendants’ Court Book 104 onwards.  Would you accept that there would be in your file notes and your file, records of you coming into conflict with other workers back as far as 1999?---

A:     I would, sir, but I'd like to say it takes two to have an argument, sir.”[20]

[20]T31, L24 – T32, L11

·Although his wife has remarried, he was last in a relationship eight months before the injury.

·He accepted that he discussed with his psychiatrist, Dr Whitehouse, certain problems he was having with his daughter when she was sixteen and such problems involved behavioural problems, including drinking and taking the pill.  He denied that he had stalked his ex-wife at any previous time.

·He was unaware that his daughter was seeing a psychiatrist at some stage until some later time, and his daughter currently attends a TAFE and has “settled down a considerable amount”.[21]

[21]T39, L22

·He accepted that his father attempted suicide in 2009 which was a worry to him.

·Since his suicide attempt, his father has been diagnosed with Alzheimer’s disease and that continues to be a worry to the plaintiff.

·Since his separation, he has lived at his parents’ home.  He has income from the Disability Pension, which is $720 net per fortnight, and he has some other investment income from a high-interest savings account and some shares which generate a dividend income or the accumulation of further shares from a dividend reinvestment plan.

·He has been able to get out a bit and travel to Vanuatu to attend his brother’s wedding in February 2010.

·He joined the Greensborough Angling Club in mid-2009 and was there for about a year and a half.

·He became a greeter over the last six months of his employment as a result of difficulty performing his work in the leisure area, which involved the moving of outdoor furniture, barbecues and heavy lifting.  He was given a certificate limiting the type of work he could do and such certificates continued until his resignation.

·He continues to renew his boat licence every five years, which involves a nominal fee, and also continues to register his boat on a yearly basis.  Similarly, he continues to register his trailer on a yearly basis – such trailer carrying the boat.

·His last time out in the boat was about two and a half to three years ago.

·He keeps the registration up to date, because if you “let the registration run out, you need then to go get it roadworthy, so to speak, or – so it does end up costing you more”.[22]

[22]T54, L27 – 31

·The last trip he took with the fishing club was about two and a half years ago.

·Later in the cross-examination, counsel for the defendants had available the records pertaining to the fishing club.  The plaintiff accepted that if the records revealed that he went to meetings on 15 January 2009, 20 February 2009, 12 March 2009, 23 April 2009, 4 June 2009, 18 June 2009, 24 September 2009 and 18 February 2010, he considered that may well be right.  Furthermore, he accepted that when he arrived on 3 December 2009, there was a working bee in preparation for a forthcoming Christmas party.  He accepted he assisted to a small extent, moving some plastic seating, plastic chairs, in order for others to wash them down with hoses.  The plaintiff also accepted that he attended three tournaments, one of which was at the Sorrento Whiting Tournament on 18 January 2009, a mid-week tournament on the Yarra River from 5.00 pm to 7.00 pm at Eltham on 8 March 2009, and a two-day competition at Khancoban on 22 and 23 August 2009.  The plaintiff confirmed that he has not renewed his membership.

·He has an appointment to see a drug addiction specialist with the hope to wean down the morphine-based tablets he has been taking.

·When queried about his ability to work, the plaintiff was of the opinion that he would have “a very good chance of working if I was not on these tablets”.[23]

[23]T59, L2 – 3

·He has recently stopped looking for work and has made enquiries about performing volunteer work.

·He has discussed with his general practitioner and Dr Whitehouse about becoming reinvolved with the Commonwealth Rehabilitation Service and he hopes to get to such service after the case is finalised and he can get off the current medication.

·About twelve months ago he bought a new car, a Holden Captiva, and the cost of such purchase ($42,000) was financed largely through a loan from his parents.

·He tends to use the right arm as little as possible, although there are times when he tries using the arm.  When queried as to what makes it better or worse, he stated: 

“It's very hard to tell.  Extreme temperatures make it worse I've noticed.  Night time it's worse, you know, whether it be really hot or really cold and sometime[s] for no reason at all.  Other times I've been - I've aggravated it by may be lifting something and putting too much strain on it or it could be as simple as the doctor pricking me with the toothpick, Your Honour.  It's very unpredictable.[24]

[24]T63, L24 – 31

·It would not hurt if someone touched the back of his hand and most of the time he could use a knife or fork in that hand, although the lifting of a jug of water may be difficult.

·Even after the administration of the narcotics each day, he still does experience some pain.

·He accepted that when he attends Dr Whitehouse he may subconsciously cradle his right arm in his left arm.

·He was shown video taken on 12 and 15 October 2009.  He accepted that the video showed him walking with his daughter, then attending a medical appointment with Mr Stapleton, swinging his right arm by his side when walking, entering a JB Hi-Fi store, entering into a supermarket with his daughter and holding some shopping in his right hand, as well as his left, and using his right hand to open the boot of his then motor vehicle.

·The plaintiff was also shown video taken on 5 July 2010, which revealed him at a Diamond Valley Mitre-10 store, using his right hand to open and close the door of his vehicle.

·The plaintiff was shown further video taken on 2 and 3 November 2010.  In particular, it was put to him that now being conscious of being under surveillance, he kept his right hand in his pocket a lot more than usual.  He accepted that the video of 2 November 2010 did show his right hand in his pocket and that was contrary to what had been suggested to him by the rehabilitation people to keep his right arm active.

·The plaintiff was also shown video taken on 13 May 2011 which revealed him at the Plenty Valley Shopping Centre where he attended JB Hi-Fi looking at videos for quite a long time and also looking at Play Station games.  The plaintiff believed that he was probably purchasing a present for his daughter whose birthday was the next day.

·He uses his right hand to insert the keys in his Holden Captiva car.

·The plaintiff has on two occasions tried to wean himself off OxyContin with the assistance of his general practitioner, Dr Mason.  On each occasion he dropped his dosage down by 5 milligrams, but experienced higher pain levels particularly at night.

·Although he hopes to wean himself off the narcotics, he anticipates that he would also always have pain in his right arm which would prevent him performing manual work.

·He has pain in his shoulder, neck and low back.

·Prior to his injury, he went camping about half a dozen times a year and, since his injury, he has only been camping on occasion.

·Prior to his injury, he was engaged in weightlifting, maybe four or five nights a week, but has not been engaged in that activity since his injury because such activity would “severely aggravate my arm”.

·Since the injury, he has been unable to paddle out on a boogie board.

·His weightlifting activity occurred at home and such equipment is now under the house and “collecting dust”.

25      Under re-examination, the plaintiff gave the following pertinent evidence:

·The pain in his shoulder, neck and lower back commenced about six to eight months after the injury.

·The exercises he performs at home were taught at the pain management course he did at the Austin Hospital.

·When asked about what effort did he make to obtain work, he gave the following evidence: 

Q:     “What sort of efforts did you make to obtain work?---

A:     Well I was - went to all the local type businesses that I thought I could possibly do so businesses with light type of merchandise so it would've been a sales position.  For example, places like Officeworks where it's paper and that type of thing or yeah, just other local shops.

Q:     When you say you approached them, what, did you just knock on doors?---

A:     There were a couple that were advertised in local papers and such and yes, I did just go around to a lot of businesses with my résumé and asked if there was work and – and every business – pretty much every business accepted a résumé and type of ‘We'll get back to you’ type of thing but unfortunately they seemed to think that I wasn't right for the position I suppose.”[25]

[25]T100, L27 – T101, L9

The Medical Treatment of the Plaintiff

26      The plaintiff has undergone the following radiological studies in relation to his lower right arm:

(a)   plain x‑ray of his right arm and wrist undertaken on 28 February 2006, revealing no suggestion of a fracture;

(b)x‑ray of the right wrist and scaphoid undertaken on 31 March 2006;[26] which concludes:

[26]See Exhibit 2 at page 29 PCB

“Radio-carpal alignment is anatomical.  No bony fracture seen.  In particular the scaphoid is intact.  The scapho-lunate distance remains unchanged with a clenched fist.  If suspicion of bony injury or ligamentous injury persist, MRI would be useful.”

(c)Limited bone scan with flows both wrists and hands.[27]  The conclusion of such scan:

[27]See Exhibit 2 at page 31 PCB

“Negative bone scan for acute right scaphoid or other right wrist or hand frank fracture.  The scintigraphic findings are compatible with right scaphoid bone bruising on a background of right hand disuse.  If this is clinically discordant, or an associated carpal ligament injury is suspected, further imaging with MRI would be recommended.”

(d)MRI scan of the right wrist on 23 May 2006.[28]  The conclusion of such scan was:

“1    The scaphoid appears intact with no fracture.

2    The adjacent FCR and FPL tendons appear intact.

3    7 x 7 x 2 mm diameter dorsal scapholunate ganglion.”

[28]See Exhibit 2 at page 32 PCB

27      After the occurrence of his injury, the plaintiff consulted Dr Hooper at the North Eltham Medical Clinic on 28 February 2006.  An x‑ray of his right arm and wrist taken on that day showed no fracture.  He was advised to rest, apply ice and take Voltaren to treat the injury.  It was suggested that he do restricted left hand duties only.

28      On 6 March 2006, the plaintiff was reviewed by Dr Chan, another doctor at the Plenty Road Medical Clinic, and was complaining of ongoing pain in right wrist which was restricting the range of movement of the wrist.  The examination on that day revealed mild tenderness over the dorsal carpal region and there was no swelling.  The range of movement was reduced due to pain.  He was advised to continue with Voltaren for pain relief and continue on left hand duties only.

29      On 27 March 2006, the plaintiff again presented to Dr Chan with ongoing right wrist pain which was worse with movement.  Examination revealed tenderness over the lateral carpal region, although the range of movement was otherwise normal.  He was referred to a physiotherapist for treatment.

30      On 10 April 2006, Mr Pinkerton returned to Dr Chan, advising that “his right wrist pain was improving with physiotherapy and wearing of a wrist splint” (as suggested by the physiotherapist).

31      On 11 April 2006, Dr Chan was contacted by the physiotherapist treating the plaintiff, suggesting that because of ongoing tenderness over the base of the right scaphoid, that a bone scan be undertaken.  The bone scan was undertaken on 12 April 2006, revealing no abnormality.

32      The plaintiff was again examined by Dr Chan on 20 April 2006 and 26 April 2006, on which date there was a discussion about him returning to work as a “people greeter” at the front entrance. 

33      Dr Chan last examined the plaintiff on 26 April 2006 and considered that the plaintiff had suffered a “soft tissue” injury to his right wrist but commented that specialist opinion would be required given the unremitting and complicated soft tissue injury. 

34      The physiotherapist treating the plaintiff, Sam Oldfield, referred the plaintiff to Dr Will Howard, the director of the pain management service at the Austin Hospital, for management of chronic pain of the right upper limb.

35      When first seen at the Austin Hospital on 15 June 2006, the plaintiff gave a history that he had suffered severe pain in the right wrist following his work-related injury some three to four months earlier.  At that time, the plaintiff also noted marked temperature changes in the skin of his right hand. 

36      Dr Will Howard made a diagnosis of CRPS1, previously called Reflex Sympathetic Dystrophy.  Dr Howard recommended a course of Stellate ganglion blocks and these were undertaken on 24 August, 31 August, 7 September, 14 September, 21 September, 5 October and 12 October 2006.

37      When reviewed by Dr Howard in the pain clinic on 31 October 2006, it was noted that there had been some benefit from a course of Stellate ganglion blocks but the plaintiff considered that his condition had now plateaued.

38      At that time he was advised to commence a course of hydrotherapy, and was assigned a pain clinic psychologist to assist with more robust techniques of self-management.  He was prescribed and took Amitriptyline and OxyContin.

39      When reviewed on 19 December 2006, it was noted that progress was slow and that the plaintiff had recently discontinued work due to concern about his pain.  At that time, it was emphasised that it was desirable to maintain activity and function despite persisting pain.  He was commenced on Pregabalin, in addition to the other medication, and when seen on 27 February 2007, there had been “some improvement”, but it was noted that he continued to have multiple trigger points around the right upper limb and girdle.  He underwent nine consultations with Dr Philippa Frances, the senior clinical psychologist at the pain unit, over the period from 12 December 2006 to 5 June 2007.  It was noted that progress was limited and he continued to experience symptoms of depression, rumination, sleeplessness, weight loss, agitation and a sense of hopelessness.

40      He commenced to take psychotropic medication in mid-May 2007 and reported some mood improvement within a few weeks.

41      His management was subsequently moved to the Olympia pain management program under the care of Dr Terence C Lim.

42      After leaving the Plenty Road Medical Clinic (Dr Hooper and Dr Chan), the plaintiff consulted a Dr Younan Tossoun at the St George’s Medical and Dental Centre in Lower Plenty.  That doctor referred the plaintiff to the upper limb orthopaedic surgeon, Mr Christopher Pullen, who initially examined the plaintiff on 17 May 2006.

43      At the time of the initial examination, the plaintiff complained of unremitting pain in the right wrist area and examination revealed tenderness over his scaphoid tubercle.  There was restricted range of palmar flexion and radial deviation of his right wrist.  There was no tenderness on examination. 

44      Mr Pullen noted that the x‑rays and bone scans showed no obvious abnormalities apart from some slight increase in uptake around the base of the thumb and scaphoid region.

45      Mr Pullen recommended that the plaintiff undergo the MRI scan (24 May 2006), which revealed that the scaphoid was intact and the presence of a small 7 x 7 x 2 millimetre dorsal scaphoid-lunate ganglion. 

46      On review, the plaintiff was informed by Mr Pullen that these “relatively minor changes” did not explain the plaintiff’s ongoing significant symptoms and consideration was given to a diagnosis of “Chronic Regional Pain Syndrome”.  Mr Pullen recommended a second opinion and the plaintiff was referred to the plastic and hand surgeon, Mr David McCombe, who later advised Mr Pullen that he considered the plaintiff was suffering from a pain syndrome and that a pain management program was most appropriate.

47      Mr Pullen, after consideration of the complaints and investigations, considered that the plaintiff was suffering a Chronic Regional Pain Syndrome which required treatment by a pain management specialist.  Mr Pullen has not seen the plaintiff since May 2006.

48      Mr D McCombe initially consulted with the plaintiff on 26 May 2006.  After reviewing the radiological studies, he considered the MRI scan was normal apart from the appearance of the ganglion, which he considered to be incidental.

49      The plaintiff complained of constant pain in the hand, localised to the palmar and radial aspect of the wrist and both the radial and ulnar borders of the wrist.  There was no obvious swelling or restricted range of motion and no particular focal tenderness apart from the tenderness of the distal part of the scaphoid.  His grip strength was less on the right side compared to the left.

50      Mr McCombe considered that the clinical findings and investigations did not show any evidence of structural injury and the ongoing pain symptoms appeared to be due to a “Chronic Pain Syndrome”, and it was recommended that the plaintiff be referred to a pain specialist, Dr Bruce Kinloch, for an opinion and management.

51      Mr McCombe consulted further with the plaintiff in August 2007 at the request of his then general practitioner, Dr Mason.  At that time, he had been seen at the chronic pain clinic at the Austin Hospital (Dr Will Howard) and had undergone multiple nerve blocks.  At that examination, the plaintiff complained of persistent ulnar side wrist pain and the description of his pain was consistent with neuropathic or the previously diagnosed Chronic Pain Syndrome symptoms rather than a mechanical cause.  There was no swelling or local tenderness in the region of the ulnar side of the wrist.

52      Mr McCombe considered that the diagnosis was a “Chronic Regional Pain Syndrome” resulting from the initial crush injury on 28 February 2006.

53      When the plaintiff was examined by the pain medicine specialist, Dr T Lim, in March 2007, Dr Lim noted there was no obvious evidence of CRPS affecting the right upper limb and there were no obvious changes related to sympathetic nervous system instability.  In particular, he did not have light touch allodynia. 

54      Dr Lim did note that the plaintiff did have some exquisitely tender trigger points in a regional distribution affecting the paracervical-shoulder girdle and upper limb muscles consistent with Regional Myofascial Pain Syndrome.  He considered that the regional distribution and the exquisite tenderness of the trigger points would indicate that the plaintiff had developed a degree of central sensitisation (central nervous system pain pathway sensitisation).  Dr Lim referred the plaintiff to a pain physiotherapist and also a pain psychologist, Ms Carmen Steger.

55      The plaintiff commenced attending his present general practitioner, Dr Andrew Mason, on 5 February 2007.  Dr Mason has diagnosed the plaintiff to be suffering a “Chronic Regional Pain Syndrome” of his right arm, together with reactive depression secondary to his chronic pain.  I refer to the report from Dr Mason dated 10 November 2011,[29] wherein he states, in part:

[29]See Exhibit 3 at page 48a PCB

“His pain is in his right arm, now predominantly in his right forearm and wrist, though also affecting his right shoulder and neck.  He has been experiencing this pain since a work-related crush injury of his right arm on 26/2/2006.

The prognosis, 5 years after his injury, is that of ongoing pain and debility, where use of his right arm is significantly limited.  His injuries have stabilised to a large extent.  I expect his pain to continue but do not expect any significant worsening, though the strength in his right arm may deteriorate through lack of use.  He is unable to return to pre-injury work.

He remains on OxyContin 50 mg in the morning, 55 mg in the evening, with oxynorm 20 mg for breakthrough pain.  He uses voltaren emulgel for some topical relief.  He also takes 225 mg of dothiepin for depression (secondary to his chronic pain) which is being managed by Dr Bethany Whitehouse (psychiatrist).  He also suffers from constipation, secondary to his narcotic medication, for which he takes bisacodyl and coloxyl with senna.  Attempts to reduce his OxyContin dose (from 120 mg/day to his current 105 mg/day) have only been partly successful.

…

His work capacity is limited to tasks that can be done by his left arm alone.  He might be capable of part-time sedentary work, possibly 20 hours/week, allowing for frequent rest breaks.  Fortunately he is left-handed.  …

He reports that he uses his arm for minor domestic tasks and that if he avoids all activity the pain in his shoulder and neck worsen.  If he does anything more than minor activities he has a worsening of arm pain over the next few days. … His social activities have, not surprisingly, been largely curtailed by the symptoms reported above.  … .”

56      The plaintiff was referred by Dr Lim to the psychiatrist, Dr Bethany Whitehouse, who initially saw the plaintiff on 20 September 2007.  She has continued to see the plaintiff on a regular basis to date, save for a period of about one year when she was on leave and others treated him.

57      In her evidence-in-chief, she adopted her reports dated 11 July 2008,[30] 4 June 2009,[31] 5 May 2010,[32] 1 March 2011[33] and 24 November 2011[34] as being accurate.

[30]See Exhibit 3 at page 69 PCB

[31]See Exhibit 3 at page 65 PCB

[32]See Exhibit 3 at page 72 PCB

[33]See Exhibit 3 at page 74 PCB

[34]See Exhibit 3 at page 75a PCB

58      Dr Whitehouse gave evidence how she was attempting to reduce the opiate medications that the plaintiff is presently taking, although “time will tell” the extent of any reduction in such medication.  When asked if there was a successful cessation of such opiates, would the plaintiff be medication-free, Dr Whitehouse stated:

“A:    No, he – I'd still recommend that he remain on the anti-depressant medications as I mentioned, there is going to be ongoing pain, that’s without a doubt, and other pain medications might be used at that time and better tolerated due to the fact that he is no longer on opiates and could be tried.

Q:    Such as?--

A:     Well, Lyrica is a very common pain medication for chronic pain.  It’s not a painkiller like opiates are but it is – it helps to change neurological mechanisms behind the chronic pain syndrome … .”[35]

[35]T111, L9 – 18

59      When seen by Dr Whitehouse, the plaintiff complained of depressive symptoms, including worsening depressed mood, markedly reduced appetite with significant weight loss, nausea, reduced concentration, motivation, energy and sleep.  Dr Whitehouse formed the opinion that the plaintiff suffered a major depressive episode, contributed to largely by persistent pain secondary to his injury in 2006 and the subsequent loss of his job.  She treated him with a variety of medication, including Mirtazapine, escitalopram, Duloxetine and quetiapine.  Of course, the plaintiff was also continuing to take OxyContin and OxyNorm.

60      When reporting in November 2011, Dr Whitehouse confirmed that the plaintiff continued to have a major depressive disorder with residual symptoms of depression.

61      In her final report dated 24 November 2011, Dr Whitehouse states, in part:

“Mr Pinkerton continued to have the diagnosis of Major Depressive Disorder with residual symptoms of depression.  Perpetuation of symptoms due to ongoing pain and debility to continue, as well as frustration from lack of progress and more meaningful activities.  He continues to have chronic pain with both psychological and medical factors.  Medical factors include Complex Regional Pain Syndrome following crush injury to his right forearm, and psychological factors include loss of role, depression and sleep disturbance.

The entry from Austin Hospital mentions seven sessions with a clinical psychologist to assist Mr Pinkerton with symptoms of an Adjustment Disorder following separation from his wife.  The note indicates he responded well to the intervention and while recommended he seek medication, Mr Pinkerton indicates he did not continue the anti-depressant medication for more than one week.  Symptoms described include concentration, sleep and appetite disturbance, and he showed improvement by the time the treatment was terminated.  Mr Pinkerton indicates that the period of adjustment following separation from his wife was not significant enough to cause him to cease working, and he was able to continue enjoyable activities such as bushwalking, weightlifting, running, basketball and fishing which helped him cope with the stress of his divorce.  For these reasons, I find the diagnosis indicated of ‘Adjustment Disorder’ appropriate.  That he had difficulty adjusting in the short term to separating from his wife does not make me change my diagnosis of Major Depression which I encountered in Mr Pinkerton following his rehabilitation for chronic pain, where he was unable to work, lost considerable weight and was unable to manage without biological treatment.  In fact, it possibly highlights my point that in losing his usual strategies of coping, such as physical and social outlets, he had reduced resilience to major life stressors such as divorce or medical illness.”[36]

[36]See Exhibit 3 at page 75b PCB

62      When commenting in relation to prognosis, Dr Whitehouse stated:

“His prognosis remains guarded, in that residual depressive symptoms have remained despite adequate trials of four anti-depressants, and the use of an adjunctive medication, and considerable psychological therapy and support.  While pain and lack of occupation remain, the residual depressive symptoms are likely to remain.  The psychiatric condition has stabilised, however there may be an effect on his mood and anxiety with ongoing change in pain medication dose.

With regard capacity for pre injury duties, you need to refer to pain specialists regarding physical capacity.  In as far as his mental state relates to this, he would currently be at risk of deterioration of mood and anxiety secondary to any work expectation whether part or full time, and whether pre-injury duties or alternative duties.  This incapacity is likely to persist into the foreseeable future, however I continue to recommend a comprehensive work rehabilitation program with integration of strategies to address both physical and psychiatric components of Mr Pinkerton’s presentation, to further determine this.”[37]

[37]See Exhibit 3 at page 75c PCB

63      Under cross-examination, Dr Whitehouse accepted that the presentation of the plaintiff has been much the same over the years with some fluctuation in the degree of depression that he has expressed and shown, although the pain levels have not fluctuated much.

64      Dr Whitehouse accepted that the plaintiff’s presentation was largely unchanged when attending her and, in particular, he frequently cradled his right arm in his left.

65      Dr Whitehouse also accepted that the claimed symptoms of the plaintiff, such as sweating and temperature change, were symptoms that she accepted, although not being a physical doctor, did not make observation of such matters.  She also agreed that such symptoms as sweating and temperature change were claimed to extend over his arm, neck and upper body and head.

66      Dr Whitehouse also accepted that in relation to the diagnosis of Chronic Regional Pain Syndrome, she is reliant on the physical doctors, although she makes the diagnosis of the DSM classification of “chronic pain”. 

67      Although accepting that his previous marriage separation and the illness of his father had been stressors in the past, she did not consider they were ongoing stressors and they are no longer a cause for stress.

68      When queried as to the causation and perpetuation of the Major Depressive Disorder and its residual symptoms, Dr Whitehouse stated:

“Yes I do think that the major depression has been largely caused and perpetuated by the chronic pain, both the physical and the psychological factors but not everybody with Chronic Regional Pain Syndrome or chronic pain have Major Depression.  Sometimes they have lesser depression, like an Adjustment Disorder or sometimes they cope. … .”[38]

[38]T123, L20 – 26

69      Furthermore, although Dr Whitehouse accepted that her diagnosis as to causation was at least in part dependent on an acceptance that he has a significant degree of pain as described by the plaintiff, she went on to say:

“They … [the organic doctors] … obviously have other signs and use them but the signs come and go so it's – I'm in no doubt about the degree of pain that Mr Pinkerton's in and not just because I think he's credible, because I think I've been seeing for a very long time and he's been consistent and the history that he's given has been consistent with what he's been presenting, how he's been presenting in general, how his life has gone and there's been no question in my mind of any inconsistency over a long period of time.  So I don't have any doubt about that. … .”[39]

[39]T125, L8 – 16

70      Dr Whitehouse confirmed that Commonwealth Rehabilitation Service would not be involved in his case until such time that the “current process” (the Court case) is completed.  She also confirmed that she urged him to increase his activities outside the home and join the fishing club.  In particular, Dr Whitehouse gave evidence that she encouraged the plaintiff to use his right arm as much as possible to avoid it “freezing up”.

Medico-legal Witnesses

71      The solicitors for the plaintiff arranged for the plaintiff to be medico-legally examined by the following doctors:

(a)the consultant in rehabilitation and pain medicine, Dr Clayton Thomas, on 29 September 2009,[40] 22 June 2010,[41] and on 19 May 2011;[42]

(b)the psychiatrist, Dr Nigel Strauss, on 5 August 2010[43] and on 25 May 2011;[44]

(c)consultant physician, Dr Peter Blombery, on 23 August 2010;[45]

(d)the orthopaedic surgeon, Associate Professor John Hart, on 8 December 2010[46]

[40]See report dated 14 October 2009 Exhibit 3 at page 80 PCB

[41]See report dated 8 July 2010 Exhibit 3 at page 84 PCB

[42]See report dated 21 May 2011 Exhibit 3 at page 87a PCB

[43]See report of same date Exhibit 3 at page 88 PCB

[44]See report of same date Exhibit 3 at page 96a PCB

[45]See report dated 10 September 2010 Exhibit 3 page 97 PCB

[46]See report of same date Exhibit 3 at page 102 PCB

72      In his evidence-in-chief, Dr Thomas adopted his reports and explained the process of reducing the use of narcotics by Ketamine infusion.  When asked what are the prospects of the plaintiff being totally medication-free of the opioids, he stated:

“Very slim.  In fact that's not realistic.  It's more likely that he'll acquire what I call the extra ordinary analgesics which are the, some anti-depressants and some anti epileptic drugs are useful for CRPS.  So the drugs like Lyrica, Gabapentin, Topamax, they're the anti epileptic drugs and some of the anti-depressant drugs of which there's quite a few are also usually useful for this condition as well so it's usually a combination of both.  And if we need to use an opioid we use – I would prefer a very low dose opioid and something which is – something like Tramadol would be reasonable because it works on particularly nerve pathways through opioid and non opioid pathways so it's actually works quite well at very much low dose.”[47]

[47]T138, L25 – T139, L8

73      When initially seen on 29 September 2009, the plaintiff complained of constant pain in the area of his right wrist which varied from a dull ache to a throbbing burning pain.  Furthermore, he reported the pain going up his right arm to the back of the right shoulder girdle and the neck.

74      On examination, he had an area of hyperalgesia to the right hand, primarily over the ventral aspect of the right wrist and especially over the lateral region.  He had a full range of movement of the wrist, elbow and shoulder.

75      Dr Thomas was of the view that as a result of the crush fracture to the right wrist, the plaintiff has developed a CRPS1 which he described as primarily a neuropathic pain condition.  He considered that the plaintiff’s right wrist problems will continue into the foreseeable future.

76      Dr Thomas considered the plaintiff to have an incapacity for certain types of work but would be capable of making a transition to alternative forms of work.  He considered his position was stabilised.

77      When seen on 22 June 2010, the plaintiff complained of pain around his right thumb and the radius side of his right wrist, together with pain on the right side of his neck.  At that time, Dr Thomas considered that the plaintiff was suffering from a CRPS1 and that this condition will continue into the foreseeable future.  Furthermore, he commented that such an “injury” is an organic injury and “stems” form the crush injury on 28 February 2006.

78      Dr Thomas thought, from an organic point of view, the plaintiff could work up to eighteen hours per week subject to various work restrictions.

79      When last seen on 19 May 2011, the plaintiff again was complaining of constant right hand pain and, in particular, pain in the back of his right wrist.  The pain was also involved up to the shoulder and shoulder girdle. 

80      On examination, there was no swelling or sweat change, the hair pattern was the same, skin and nail temperature was the same on the right hand as the left, and the colour of each hand was the same.  Dr Thomas noted that he had well preserved movements of his wrists, elbow and shoulder.  Dr Thomas considered that the medical condition of the plaintiff had stabilised and, as pointed out earlier, consideration should be given to a Ketamine infusion to diminish the opioid dependence.  Dr Thomas considered the plaintiff was capable of working in employment which was predominantly left handed and he could work up to, but not beyond, eighteen hours per week, based on what he believed to be the underlying nature of his right arm pain.

81      Under cross-examination, Dr Thomas gave evidence that he considered the finding of hyperalgesia (an exaggerated response to painful stimulus) is a “hard” sign supporting his diagnosis.  He also accepted that such a sign is subjective and he would need more than just that sign to justify a diagnosis of CRPS1.

82      Dr Thomas asserted that although this was the only finding that he made, other findings have been made by earlier doctors, and just because they are not there at the time he examines the patient, does not mean that the condition has suddenly got better.

83      Dr Thomas also accepted that he only tested for hyperalgesia on one occasion throughout the three examinations because the patient did not want the test repeated.  In particular, the following evidence was given:

Q:“So of the three exams you had because of Mr Pinkerton's comments to you, you only had the one positive sign, the hyperalgesia?---

A:Well it's also based on history as well, so you know, accepting all the people who'd seen him before and their expertise.  I didn't have any difficulty with the diagnosis.”[48]

[48]T143, L18 – 23

84      Dr Thomas also asserted during cross-examination that, bearing in mind the normal x‑ray and MRI scans, and accepting that the plaintiff has a genuine experience of experiencing pain in the affected area, the only organic explanation is of CRPS1.

85      Dr Thomas accepted that the plaintiff had a work capacity which involved avoiding repetitive use of the damaged right arm.

86      Dr Thomas considered that the plaintiff would have the capacity to open up a car door with his right hand and also would be capable of picking up items with his right hand.  Dr Thomas was shown the videos taken in October 2009 and July 2010.  After viewing such video material, the following evidence was given:

Q:“Were those videos consistent or inconsistent with the way the plaintiff presented to you on your three examinations?---

A:The actual range of movement, everything at the time that I saw him, his movement were full range at that time.  There's no, I couldn't see any inconsistency here.”[49]

[49]T156, L16 – 21

87      Dr Thomas accepted that it was probable that he would have put some emphasis on the report from Dr Will Howard in coming to the diagnosis of CRPS1.

88      When initially seen by the psychiatrist, Dr Strauss, on 5 August 2010, the plaintiff complained of continuous and disabling pain in the right hand and wrist which radiated up to the shoulder.  Furthermore, the plaintiff described himself as being depressed and withdrawn and that he cries often, although he was not suicidal.

89      He initially lost weight, but has put on some weight by forcing himself to eat, his memory is not good and he has difficulty with sleeping because of pain.  He complained of nightmares involving the injury to his arm when working at the first defendant’s premises.

90      The mental status examination conducted by Dr Strauss revealed the plaintiff to be a depressed, quiet man, preoccupied with his right arm which he hardly moved throughout the interview.  Dr Strauss considered that the plaintiff’s thinking was negative.

91      Dr Strauss formed the opinion that the plaintiff had developed a reactive Major Depression and did have features of traumatisation, although not a diagnosable Post-Traumatic Stress Disorder.  He does have some post-traumatic stress symptoms.  In particular, Dr Strauss stated:

“I believe that predominantly his pain is organically-based but his negative psychological state is probably contributing to his increased perception of pain on an unconscious level.  There was nothing at interview to suggest that this man was deliberately over-exaggerating his problems and he struck me as being a genuine individual who has not coped well with significant pain and disability.”[50]

[50]See Exhibit 3 at page 95 PCB

92      When reviewed by Dr Strauss on 25 May 2011, the plaintiff continued to describe himself as being “depressed” and frequently tearful.  He continued to have bad dreams about the injury.

93      Dr Strauss was of the opinion that the plaintiff continued to suffer a Major Depression which is partially treated, and some post-traumatic stress symptoms.  He considered that the injury on 28 February 2006 was “entirely responsible” for his psychiatric problem.

94      He considered that the plaintiff was unable to work in the foreseeable future and that his prognosis must be “guarded”.

95      When examined by Dr Blombery on 23 August 2010, the plaintiff was complaining of ongoing pain in his right wrist, hand and forearm as well as the back of the right scapular and occasionally in the neck.  Such pain was present all the time but fluctuated in severity and it kept him awake at night.  The plaintiff also stated that the right hand became cold, sweated abnormally, but there was no colour change.  Sometimes there was numbness involving the entire right hand but there was only minor swelling.

96      On examination, Dr Blombery found no difference in colour between the hands, but the right hand was 1.5 degrees warmer than the left (although Dr Blombery noted that the plaintiff had been rubbing his right hand prior to measurement of the skin temperature).  Dr Blombery was of the opinion that the plaintiff suffered CRPS1 based on the plaintiff’s description of his earlier symptoms and the complaint of ongoing pain.

97      Dr Blombery considered that the prognosis for recovery was “extremely poor”, given that such condition had been in existence for over four years.  Furthermore, he considered the plaintiff to be “very restricted” in regard to employment and any work would be limited to using his dominant right arm only.

98      When seen by Associate Professor Hart, the plaintiff complained that the right hand and wrist felt cold, his symptoms are worse at night and occur intermittently during the day.  Furthermore, he informed Professor Hart there were colour changes with redness and blueness of the right hand, but that had not occurred recently.  He still suffered night sweating in the right hand and described the pain as a burning pain, associated with numbness and paresthesia affecting the whole hand and wrist in the joint.

99      The plaintiff also noted that he had not noticed any swelling and that he had full movement in his hand and fingers, although he tends not to use such arm due to the pain.

100     Professor Hart performed an examination and noted that although the plaintiff was tender in the right trapezius and around the margins of the right scapular, there was a full range of painless movement in the right shoulder, right elbow and full forearm rotation.  Furthermore, there was a full range of movement in all fingers and the thumb of the right hand.  The right hand was warmer than the left but there was no evidence of sweating.  Professor Hart also had access to various x‑rays, the bone scan and the MRI scan of the right wrist.

101     Professor Hart states, in part:

“Mr Pinkerton suffered a crush injury to his right wrist and hand as a result of the accident at work on 28 February 2006, when his right hand was jammed between a vent and the control panel of a wave machine.  No structural abnormality has been noted on imaging and the diagnosis has been considered to be Complex Regional Pain Syndrome Type 1.

At this stage almost five years after the accident one would expect, with the persistent symptoms of Complex Regional Pain Syndrome Type 1, for him to have developed the atrophic form of that condition, but there is no evidence of any wasting.  This may be related to the efforts by Mr Pinkerton to maintain mobility and strength in his right upper extremity by repeated exercising, which he does very conscientiously.  There are some symptoms of sympathetic over-activity, such as excessive sweating and coldness, although examination today his right hand was actually warmer than the left.

…

He is suffering from a Chronic Pain Syndrome, with some symptoms of sympathetic activity, suggesting Complex Regional Pain Syndrome Type 1 as the likely diagnosis.

…

His incapacity is likely to continue for the foreseeable future.”[51]

[51]Exhibit 3 at page 111-112 PCB

102     The solicitors for the first defendant arranged for the plaintiff to be medico-legally examined by the following doctors:

(a)the general surgeon, Mr Michael Troy, on 20 June 2007;[52]

(b)the psychiatrist, Dr L R Turecek, on 28 September 2007;[53]

(c)the plastic and hand surgeon, Mr Murray J Stapleton, on 12 October 2009;[54]

(d)the psychiatrist, Dr Dush Shan, on 2 September 2010,[55] and 18 October 2011;[56]

(e)the rheumatologist, Dr Tony Kostos, on 3 September 2010[57] and on 11 November 2011;[58]

Dr Kostos also wrote a supplementary report on 26 October 2010;[59]

(f)the hand surgeon, Mr D Ireland, on 2 November 2011;[60]

[52]See report dated 22 June 2007 Exhibit A page 7 DCB

[53]See report of same date Exhibit A at page 13 DCB

[54]See report of same date Exhibit A at page 19 DCB

[55]See report of same date Exhibit A at page 23 DCB

[56]See report of same date Exhibit A at page 30 DCB

[57]See report dated 8 September 2010 Exhibit A at page 37

[58]See report of same date Exhibit A at page 43 DCB

[59]See report of same date Exhibit A at page 41

[60]See report dated 3 November 2011 Exhibit A at page 46 DCB

103     When examined by Mr Troy, the plaintiff complained that simple movement causes him intense pain in the medial side of his right forearm and down into the right palm, whereas other times there is pain at the base of the right thumb.  He has a different sensation when his hand gets worse with cold, although he has not noted any sweating or colour change.

104     Mr Troy diagnosed a soft tissue injury to the right mid forearm and to the distal right hand, as a result of the injury on 28 February 2006.  In particular, Mr Troy was of the opinion that such condition “has led to a variant of Chronic Regional Pain Syndrome”.[61]

[61]See Exhibit A at page 11 DCB

105     Dr Turecek diagnosed Anxiety and Depression in the context of an Adjustment Disorder which had not resolved at the time of his examination. 

106     When examined by Mr Stapleton on 12 October 2009, the plaintiff complained that his pain was very bad and that his right hand sweats at night and becomes blotchy and swells.  Although he had a complete range of flexion and extension of the fingers and the wrists, he found it painful to move his right wrist and fingers.

107     On examination, Mr Stapleton found that the right hand was dry, slightly mottled and swollen.  There was no sign of local tenderness nor any sign acute injury by way of ligamentous disruption.  All movements of the fingers and the wrists were normal. 

108     Mr Stapleton was of the opinion that the plaintiff’s condition was consistent with that of CRPS1 and that he could see no evidence of a functional component or psychological reaction to such condition (although he acknowledged that he was not an expert in such area). 

109     On initial examination, Dr Shan diagnosed the plaintiff to be suffering a Chronic Major Depressive Disorder contributed to by his work injury on 28 February 2006 and pre-existing personality factors in the plaintiff.

110     When later examined on 18 October 2011, Dr Shan noted that there was no illness behaviour and that his effect seemed both depressed and anxious.

111     Dr Shan considered the plaintiff to be moderately depressed and anxious, and that the appropriate diagnosis was Chronic Major Depressive Disorder.  In particular, Dr Shan considered that the psychiatric condition did contribute to some incapacity for work, together markedly reduced social activities.  However, Dr Shan did consider he was fit for some physical work, which is not mentally demanding and consistent with his physical limitations.

112     When Dr Kostos initially examined the plaintiff on 3 September 2010, the plaintiff described constant pain in the right side of the neck extending to the right shoulder, radiating down the right arm to the right hand.  Such pain is much worse at night and his sleep patterns are poor, and during the day the pain is aggravated by any activity and cold weather.  Sometimes the pain can flare up for no reason at all.

113     In particular, the plaintiff also complained of temperature changes and sweating of his right hand.

114     Examination at that time revealed restricted neck movements, full movements of the right elbow and the right wrist, although with pain.  In particular, his hands were completely “normal” with no vasomotor, pseudomotor or dystrophic changes.

115     Dr Kostos accepted that it was “quite apparent” that the plaintiff had a “Chronic Regional Pain Syndrome” but was of the opinion that the plaintiff had “never had” a CRPS1.  In this respect, Dr Kostos could not find any evidence of objective physical abnormality.

116     Dr Kostos was concerned about the amount of narcotic analgesia that the plaintiff was taking, although he considered that he had the physical capacity to perform some work but was so “well entrenched in his invalid role” that it was unlikely that he would return to work.

117     In a supplementary report dated 26 October 2010, Dr Kostos disputes the diagnosis of Dr Blombery of CRPS1, as it does not fill the criteria of the International Association for the Study of Pain.

118     When last seen on 11 November 2011, the plaintiff complained of constant pain in the right side of his neck extending to the right shoulder girdle and down the right arm to the hand.  He has difficulty sleeping at night because of the pain and the pain is worse with activity, cold exposure and sometimes for no reason at all.

119     Although the plaintiff considered he had a full range of movement, he restricts movement because it is “painful”.  He also notes sweating of his right hand, neck and head as well temperature changes in his right hand.

120     Dr Kostos again diagnosed a Chronic Regional Pain Syndrome which he explained to mean that he has ongoing pain in the absence of any identifiable physical cause, but it “certainly does not mean that he is not suffering from pain”.

121     In particular, he again asserted that the plaintiff is not suffering from CRPS1.  He is critical of the opinions expressed by Associate Professor Hart and Dr Thomas, who both diagnosed CRPS1.  Dr Kostos considers that examination findings recorded by those doctors do not contain sufficient criteria to allow such a diagnosis to be made.

122     Dr Kostos accepts that a Chronic Regional Pain Syndrome is often centrally mediated, but it can be influenced by a number of other factors. 

123     When examined by Mr Ireland on 2 November 2011, the plaintiff complained of constant right hand and wrist pain with associated numbness.

124     In particular, the plaintiff gave a history that he was unaware of any differential nail or hair growth between the right symptomatic and the left symptom-free upper limb.  Furthermore, he was unaware of any colour changes affecting the right upper limb.  He did state that the right upper limb feels cold on occasions and that the palm of the right hand perspires more than the left.

125     Examination revealed the plaintiff to be a depressed person, talking in monotone.  Mr Ireland noted there was no temperature difference between the two hands, nor was there abnormal nail or hair growth.  Furthermore, there was no colour difference between the two upper limbs and no swelling. 

126     Mr Ireland made a diagnosis of Chronic Pain Syndrome of the right upper limb and noted that there was no evidence of CRPS1 at the time of his examination. 

127     Mr Ireland was of the opinion that he could find no physical problem that would prevent the plaintiff returning to physical work, although the overwhelming “Adjustment Disorder” and narcotic analgesic “addiction” makes him currently unemployable.

Analysis of the Evidence

128     There is no issue that the plaintiff suffered an incident of injury on or about 28 February 2006 during the course of his employment with the first defendant when his right wrist and forearm were crushed between an hydraulic lift machine and an air vent.  According to the plaintiff, his hand and lower arm were trapped for about twelve or fifteen minutes before another staff member could free his arm.

129     The first issue to determine is whether the plaintiff suffered an organic injury that has persisted and likely to last for the foreseeable future.  Again, there is common ground between the parties that the plain x‑rays of the right arm and wrist undertaken on 28 February 2006 and 31 March 2006, the bone scan flows of both wrists and hands undertaken on 12 April 2006 and the MRI scan of the right wrist on 23 May 2006 revealed no fractures or indeed physiological abnormality, save for a ganglion which was considered to be of no relevance.

130     Senior Counsel for the plaintiff submits that although there is an absence of pathology as shown in the radiological studies, the plaintiff has suffered an organic injury consisting of CRPS1 which gives rise to significant pain being experienced by him in his lower arm and, in particular, his wrist area, which impacts on his daily living and for which he is required to take significant amounts of opiate narcotics.

131     Counsel for the first defendant disputes that the plaintiff is suffering such a condition. 

132     Counsel for the first defendant disputes the existence of such condition on essentially two grounds:

(a)the doctors who made such a diagnosis did so on the basis of either a history of signs and symptoms described by the plaintiff, or alternatively, accepting a previous doctor’s diagnosis; and

(b)insofar as reliance is to be placed on the history given by the plaintiff, issues arise as to the reliability and credit of the plaintiff.

133     Counsel for the first defendant also asserts that in the event that the Court found that the plaintiff was suffering a CRPS1, such “injury” is not a “serious injury” within the meaning of paragraph (a) of the definition of “serious injury”.[62]

[62]See s.134AB(37)(a) of the Act

134     After a consideration of all the evidence, I make the following findings of fact:

(a)   The plaintiff is a forty-two year old (born 18 October 1969) single man with one child.  He is naturally left handed.

(b)   He was educated to Year 12, after which he obtained an Advanced Certificate in Horticulture which permitted him to work in nurseries and outdoor maintenance.

(c)   He commenced employment with Bunnings at Northland in March 1997, initially as a full-time worker but, as from 16 March 2000, he reduced his hours to 25 hours per week in order for him to deal with the separation and divorce and share the care of his then young daughter.

(d)   After the occurrence of his injury on 28 February 2006, he was off work for a short time before resuming his normal duties.  Due to persisting pain, he was made a “greeter” and continued this work until his resignation in December 2006 because of ongoing pain in his right hand.

(e)   He is presently being paid $720 a fortnight by way of a Disability Pension and he has other modest investment income.

(f)   Over the period from 26 August 1999 to 7 October 1999, he attended at Austin Health for psychological treatment on seven occasions following separation from his wife.  Probably he also took some medication for Depression or Anxiety for about two weeks during that time.

(g)   The circumstances surrounding his separation from his then wife were acrimonious, with significant disputation about his access to his daughter.  I accept his evidence and that of his treating psychiatrist, Dr Whitehouse, that such issues, although stressful at the time, are largely in the past.

(h)   Similarly, issues pertaining to the attempted suicide of his father and the diagnosis of his father suffering a form of dementia, and issues pertaining to his daughter when aged about sixteen, although stressful at the time, are matters which are largely in the past.

(i)    I found the plaintiff to be someone who has been reasonably well educated, presenting in an articulate and intelligent manner.

135     Again, after consideration of all the evidence, I have come to the view that the plaintiff was largely a witness of credit.  Prior to the injury, he had a good work record with the first defendant.  There was a suggestion that he had been cautioned about aggression to other workers, but I make no particular finding or infer any particular matter as a result of that evidence.

136     It was suggested by counsel for the defendants that the credit of the plaintiff was impugned in part by the video material, which in part showed use of the right hand and arm, his presentation to various doctors, in particular to the treating psychiatrist where he tended to cradle his right arm in his left, and the extent of his involvement in the angling club.

137     However, it must be remembered that Dr Clayton Thomas viewed much of the video and saw nothing inconsistent in what he viewed compared to the clinical presentation.  Furthermore, Dr Whitehouse and some of the pain management specialists were urging the plaintiff to use his right arm more, rather than protect it.  In terms of the activity with the angling club, I accept that his involvement was greater than what he originally stated.  I find this more represents imprecision of memory rather than a deliberate attempt to mislead the Court.  Again, it must be remembered that Dr Whitehouse recommended that he join the angling club and ultimately he had to give it away.

138     I should add that I was particularly impressed with the evidence from the treating psychiatrist, Dr Whitehouse, who, in particular, asserted that she was in “no doubt” about the degree of pain that the plaintiff was suffering, not just because he was “credible”, but also because she had been seeing him for “a very long time and he has been consistent and the history that he has given has been consistent with what he has been presenting”.

139     Seemingly, Dr Will Howard made the initial diagnosis of CRPS1 in or about mid 2006.  Seemingly, this was based at least on the history given by the plaintiff that he noted marked temperature changes in the skin of his right hand.  Dr Blombery, Dr Clayton Thomas and, in part, Mr Stapleton also reached a similar diagnosis.  He has given histories to some doctors of complaints of temperature changes and sweating of his right hand.

140     It is to be noted that although Dr Kostos makes the point that Chronic Regional Pain Syndrome and CRPS1 are different conditions, other doctors are not that clear in their demarcation.  Dr Kostos sets out what he considers to be the elements of CRPS1 and notes that a Chronic Regional Pain Syndrome implies that the patient has ongoing pain in the absence of any identifiable physical cause.  However, he then goes on to say that “such problems” are often centrally mediated but can be influenced by a number of other factors.

141     I also refer to the evidence from Dr Terence Lim, the pain specialist, that there was no obvious evidence of CRPS1, but he did note that the regional distribution of exquisitely tender trigger points indicated the plaintiff had developed a degree of central nervous system pain pathway sensitisation.

142     The thrust of the evidence from Dr Kostos and Mr Ireland was that there were no signs consistent with CRPS1 and, accordingly, he did not suffer from such condition.  Such a view is inconsistent with other doctors who suggest that the signs do not always have to be present for a diagnosis to be made.  In this respect, I refer to the evidence of Dr Clayton Thomas, where he stated he had “no difficulty” in making the diagnosis of CRPS1, notwithstanding the paucity of signs at the time of his examinations.

143     After consideration of all the evidence, and bearing in mind my findings in relation to the credit of the plaintiff, I do find that it is more probable than not that the plaintiff has suffered CRPS1 as a result of his injury on 28 February 2006 and such condition has given rise to organically-based pain requiring the administration of significant amounts of narcotics to control such pain.  In such circumstances, I consider that his situation involves the “endurance of permanent daily pain requiring frequent medication”.[63]

[63]See Sutton v Laminex Group Pty Ltd [2011] VSCA 52 at paragraph [91]

144     Not only does the plaintiff experience constant daily pain requiring such medication, such pain also impacts on various activities undertaken by him.

145     Considering all the evidence, I have formed the view that the plaintiff discharges his onus in satisfying the narrative test and I grant leave to him to bring common law proceedings for pain and suffering damages in relation to the injury that he suffered on 28 February 2006.

146     Furthermore, as indicated, I was impressed with the evidence of Dr Whitehouse who has diagnosed the plaintiff to be suffering Major Depression which has been largely caused and perpetuated by chronic pain brought about by physical and psychological factors, although she conceded that she relied on the organic doctors as to the extent of any physical contribution, she was steadfast in such diagnosis. 

147     As I would understand the evidence from Dr Shan, he was of a similar opinion, to the extent that the plaintiff suffered a Depressive Disorder contributed to by his work injury on 28 February 2006 and pre-existing personality factors.  Dr Strauss was also of a similar opinion, in that he considered the plaintiff suffered a reactive Major Depression with features of Post-Traumatic Stress Disorder. 

148     I should also point out that if I am wrong in my acceptance of CRPS1 and that a more appropriate diagnosis is Chronic Regional Pain Syndrome to explain the pain symptoms (as suggested by some of the organic doctors), then such condition also falls within paragraph (c) of the definition of “serious injury”. Notwithstanding the foregoing, I consider the preferred view is that of Dr Whitehouse, who has treated the plaintiff for many years and is probably in the best position to form a view as to his psychiatric state.

149     Accordingly, I have formed the view that the plaintiff also satisfies paragraph (c) of the Act, in that he has a permanent severe mental or behavioural disturbance or disorder characterised as Major Depression for which he has required frequent treatment in the past and will require treatment in the future.  Again, this condition has impacted on every aspect of his life and, although appreciating that the consequences of such condition must be “severe” rather than “serious”, I am satisfied that in the circumstances of this matter such definition has been satisfied, given the circumstances of the plaintiff.

150     Although I have accepted that the plaintiff reduced his hours of employment to 25 hours a week for reasons unconnected with the injury, he was forced to cease that work with the first defendant as a result of his ongoing painful condition.  Although he may have some theoretical capacity for work, I am of the view that his “pain and suffering” consequences also include the lack of opportunities that he now has to pursue active employment given his ongoing pain and medication.  I also accept the evidence of Dr Thomas that it was “not realistic” to consider that the plaintiff will ever be totally free of opioid medication.

Conclusion

151     I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages in relation to an incident of injury on or about 28 February 2006 during the course of his employment with the first defendant, with the Court noting that the plaintiff has discharged his onus in establishing a serious injury under paragraphs (a) and (c) of the definition of “serious injury”.

152     I will hear the parties on the question of costs.

ANNEXURE A

1       The plaintiff tendered the following material:

(a)Exhibit 1 – Affidavits of the plaintiff sworn 28 August 2009, 23 August 2010, and 18 April 2011 (all found at pages 16–28 Plaintiff’s Court Book (“PCB”)).

(b)Exhibit 2 – Diagnostic investigations consisting of x-ray of the right wrist and scaphoid dated 31 March 2006; limited bone scan with flows of both wrist and hands dated 12 April 2006; and MRI scan of the right wrist dated 25 May 2006 (all found at pages 29–32 of the PCB).

(c)Exhibit 3 – Letter from Mr Sam Oldfield (undated); medical report from Dr Will Howard dated 17 August 2006; medical report from the Austin Hospital dated 23 June 2008; medical report from Dr Ken Chan dated 17 June 2008; medical reports from Dr Andrew Mason dated 21 November 2007, 10 February 2008, 22 October 2008, 21 March 2010, 13 March 2011 and 20 November 2011; medical report from Dr T Lim dated 1 March 2007; a report from psychologist Ms Carmen Steger dated 10 July 2007; medical reports from Mr C Pullen dated 25 May 2006, 17 May 2006 and 15 November 2007; psychiatric reports from Dr Bethany Whitehouse dated 11 July 2008, 4 June 2009 and 5 May 2010, 1 March 2011 and 21 November 2011; medical report from Mr D McCombe dated 16 October 2007; medical reports from Dr Clayton Thomas dated 14 October 2009, 8 July 2010 and 23 May 2011; medical reports from the psychiatrist Dr Nigel Strauss dated 5 August 2010 and 25 May 2011; medical report from Dr P Blombery dated 10 September 2010; and medical report from Associate Professor John Hart dated 8 December 2010 (all that material found at pages 33–113 of the PCB).

2       The defendants tendered the following material:

(a)Exhibit A – Medical reports from Mr Michael Troy dated 22 June 2007; Dr L R Turecek dated 28 September 2007; Mr Murray Stapleton dated 12 October 2009; Dr Dush Shan dated 2 September 2010 and 18 October 2011; medical reports from Dr Tony Kostos dated 8 September 2010, 26 October 2010 and 11 November 2011, and a medical report from Mr Damien Ireland dated 11 November 2011 (all found at pages 7–52 of the Defendants’ Court Book (“DCB”));

(b)Exhibit B – Extract from the plaintiff’s Personnel File contained pages 103-150 of the DCB.

(c)Exhibit C – 4 DVDs of surveillance taken of the plaintiff as follows:

- 12 October to 15 October 2009

- 5 July 2010

- 2-3 November 2010

- 13 May 2011

(d)Exhibit D – page of notes from Austin Rehabilitation Centre dated 26 August 1999 and 11 October 1999.

(e)Exhibit E – report of Dr Lim dated 20 September 2007

(f)Exhibit F – letter from Dr Will Howard dated 1 November 2006.

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