Savedra v Victorian WorkCover Authority
[2015] VCC 598
•13 May 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-04966
| JENNIFER SAVEDRA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 29 April 2015 | |
DATE OF JUDGMENT: | 13 May 2015 | |
CASE MAY BE CITED AS: | Savedra v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 598 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Compensable injuries to the left lower arm – whether a subsequent condition affecting the left elbow is causally connected to the initial compensable injury – whether the pain and suffering consequences of the compensable injuries are “serious”
Legislation Cited: Accident Compensation Act 1985, s134AB(37)(a)
Cases Cited:Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon [2010] 31 VR 1
Judgment: The plaintiff is granted leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Anderson | Slater & Gordon Lawyers |
| For the Defendant | Mr C Miles | Wisewould Mahony, Lawyers |
HIS HONOUR:
Introduction
1 By an Originating Motion filed 13 October 2014, the plaintiff seeks the leave of the Court, pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”), to commence a proceeding at common law against her former employer to recover damages for pain and suffering and loss of enjoyment of life resulting from injuries which she suffered on 28 August 2008.
2 The plaintiff suffered a number of injuries to the structure of her left wrist. She contended that the body function which had been impaired was the function of her left lower arm. The application was based upon the definition of “serious injury” in s(37)(a) of the Act.
3 Mr B Anderson of counsel appeared for the plaintiff. Mr C Miles of counsel appeared for the defendant.
4 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined.
· The plaintiff tendered a letter from Allianz Australia Workers’ Compensation (Victoria) Limited (“Allianz”) dated 9 July 2010: Exhibit A
· The plaintiff tendered her Court Book (“PCB”) pages 7-36 and 40-50: Exhibit B
· The defendant tendered its Court Book (“DCB”) pages 1-28: Exhibit 1.
The issues
5 There were essentially three issues raised by the defendant. They were:
· Is the medical condition affecting the plaintiff’s left elbow a consequence of the initial compensable injuries suffered to the plaintiff’s left wrist?
· If it is, then whether the consequences of the compensable injuries are serious?
· If it was not, whether the compensable injuries are serious, having regard to the onus on the plaintiff to disentangle the concurrent medical conditions and their consequences?
The Plaintiff’s background
6 I will firstly turn to some aspects of the plaintiff’s background which are relevant to my consideration of whether the consequences contended for by her are serious.
7 The plaintiff was born in November 1975. She is now thirty-nine years of age and is single.
8 The plaintiff completed Year 12. She completed two years of a science degree before abandoning it. After travelling for a short period of time, she worked in the finance industry. In about October 2004, she obtained employment with Mutual Trust Pty Ltd as a finance administrator.
9 It was during that employment that the plaintiff suffered injury to her left wrist. On 28 August 2008, she returned to her desk. A plastic protective mat had been placed over the carpeted floor under her desk chair. She tripped on the edge of the plastic mat because the edge of it was broken and curled up. In the course of falling, she landed on her left wrist.
The Plaintiff’s medical treatment
10 The first medical practitioner who the plaintiff saw was Dr Mitropoulos, general practitioner. The plaintiff first saw him on 29 August 2008 and then again on 3 September 2008. Her care was taken over by Dr Barresi, general practitioner. He is a colleague of Dr Mitropoulos. He referred the plaintiff to Mr Tham, orthopaedic surgeon, who essentially took over her treatment.
11 The plaintiff first saw Mr Tham on 5 November 2008. She told him that as a result of the fall, she suffered the following symptoms:
“… This resulted in immediate bruising and swelling to her left wrist. This was associated with immediate pain of the dorsum of her wrist which persisted despite treatment by immobilisation. Initially by plaster cast and subsequently by a resting splint. She did not recall any previous injury to her left wrist.”[1]
[1]PCB 23
12 Mr Tham examined the plaintiff’s left wrist. He found the following:
“Examination showed mild swelling in the region of the anatomical snuff box at the radial aspect of her left wrist. There was also swelling over the ulnar aspect of her wrist in the region of the triangular fibrocartilage. Her range of motion was restricted with flexion to 50° and extension to 40°. In her normal right wrist flexion to 85° and extension to 75°. Carpal stress precipitated this significant discomfort. There was no evidence of distal radioulnar joint instability.”[2]
[2]PCB 23
13 Mr Tham first operated on the plaintiff’s left wrist on 11 December 2008. By the time he undertook that surgical procedure, the plaintiff had undergone a plain x-ray on 29 August 2008;[3] an MRI scan taken on 2 September 2008[4] and a further plain x-ray taken on 14 October 2008.[5] Mr Tham examined an x-ray, and presumably the x-ray taken on 14 October 2008. He considered that it showed evidence of widening of the scapholunate joint, with increased flexion of the scaphoid, suggestive of scapholunate dissociation.[6]
[3]PCB 14A
[4]PCB 15
[5]PCB 16
[6]PCB 23
14 On 11 December 2008, Mr Tham performed the following surgical procedure:
“Arthroscopic surgery was performed to her left wrist on 11th December 2008. There was evidence of a Grade 1 injury to the scapholunate interosseous ligament, moderate synovitis over the dorsum of the wrist at the radiocarpal joint and a central tear of the triangular fibrocartilage. Areas of synovitis and tear of the triangular fibrocartilage was debrided.”[7]
[7]PCB 23-24, and operation note at PCB 25A
15 On review on 5 February 2009, the plaintiff complained of intermittent swelling and pain over the dorsum of her left wrist. Mr Tham referred her to have an MRI scan, which was taken on 8 May 2009.[8] He considered that the MRI scan revealed a ganglion cyst over the dorsum of the left scapholunate articulation, and a tear of the triangular fibrocartilage. He performed a surgical procedure on 15 June 2009, during which he excised the ganglion cyst.[9]
[8]PCB 17
[9]PCB 24 and operation note at PCB 25B
16 On review on 19 November 2009, the plaintiff complained of pain over the ulnar border of her left wrist. On examination, Mr Tham found the following:
“… There was tenderness in the area of the triangular fibrocartilage but without any evidence of ulnar carpal abutment. A visible subluxation of the left extensor carpi ulnaris tendon was noted and an ultrasound was performed. This confirmed dorsal subluxation of the left extensor carpi ulnaris tendon with forearm supination. … .”[10]
[10]PCB 24
17 Mr Tham referred the plaintiff to have an ultrasound, which was performed on 20 November 2009.[11] He subsequently performed a surgical procedure on 8 February 2010 to repair the subluxing tendon. He subsequently referred the plaintiff to have intensive hand therapy.[12]
[11]PCB 19
[12]PCB 24 and operation note at PCB 25C
18 Initially, the plaintiff was provided with hand therapy by Ms Kerry White, hand and occupational therapist, at an institution known as VHSA, between June and September 2009, and also in November 2009.[13] She was then referred to Ms Graham, hand and occupational therapist, around November 2009.
[13]PCB 26-27
19 It is not clear how long Ms Graham provided the plaintiff with hand therapy in about November 2009; however, it would appear that there was a break in that treatment. It may be because of the intervening surgical procedure undertaken on 8 February 2010. Following that surgical procedure, she was provided with hand therapy at VHSA, before returning to see Ms Graham in September 2010.
20 It would appear that the reason why the plaintiff returned to Ms Graham was the onset of additional symptoms in her left hand. Ms Graham recorded the plaintiff’s complaints as follows:
“Ms Savedra returned to see me in September 2010 at Footscray concerned about night time waking caused by pins and needles in the 4th and 5th digits. We trialled some conservative management of these nerve compression symptoms including ultrasound and massage, nerve stretches and education re posture. She was seen fortnightly for approximately three months with some improvement noted.
On 4th October 2011 Ms Savedra returned to see me complaining of increasing nerve symptoms … .”[14]
[14]PCB 27
21 The plaintiff returned to Mr Tham on 26 April 2012 and then on 23 August 2012 complaining of the same symptoms which she reported to Ms Graham. Mr Tham described those complaints as follows:
“On 26th April 2012 Jennifer represented with intermittent numbness of her left little and ring fingers with signs and symptoms consistent with left cubital tunnel syndrome. A period of conservative management with the aid of hand therapy was commenced. However Jennifer returned on 23rd August 2012 with worsening symptoms of left cubital tunnel syndrome and abnormal two point discrimination of 8mm in her left little and ring fingers suggestive of significant altered sensibility. … .”[15]
[15]PCB 24
22 Mr Tham performed a left cubital tunnel release on 25 October 2012. It would appear that he referred the plaintiff to have further hand therapy. Ms Graham described the left cubital tunnel release as comprising a left ulnar nerve release and sub-muscular transposition for a chronic left cubicle tunnel syndrome.[16] Initially, the plaintiff had hand therapy provided by VHSA and then by Ms Graham.
[16]PCB 24
Is the ulnar nerve condition related?
23 I will firstly turn to the opinion of Mr Tham. In his report dated 20 October 2013, from which I have quoted above, he set out the history that he was given by the plaintiff regarding the onset of her symptoms and the treatment he provided her. He did not make any comment about the onset of the left cubital tunnel syndrome consistent with it either being causally related to the initial compensable injury or otherwise. The manner in which he dealt with the onset of that syndrome strongly suggests that he considered it to be a condition related to the initial compensable injury. That conclusion is confirmed by his answer to a question that was put to him directed to the issue of causation. He said:
“1.The stated injury on 27th August 2008 resulted in a tear of the left wrist triangular fibrocartilage, painful left dorsal wrist ganglion, subluxation of the left extensor carpi ulnaris tendon and left cubital tunnel syndrome … .”[17]
[17]PCB 24
24 That opinion is unequivocal in implicating the traumatic incident as the cause of the development of all of the pathology affecting the plaintiff’s left lower arm.
25 Mr Stapleton, plastic and hand surgeon, examined the plaintiff on a medico-legal basis on 25 March 2015. He was made aware of the controversy regarding the onset of the left cubital tunnel syndrome. He also, unequivocally, stated that the traumatic incident was the cause of the development of that pathology. He said:
“On 26 April 2012 this lady presented with numbness and pins and needles in the ring and little fingers and, despite a negative nerve conduction study, and despite the doubts offered by Mr Buntine, the clinical situation indicates that the ulnar nerve is compressed and, on the basis that the pins and needles involved the medial side of her forearm, the left elbow was where the nerve was compressed and that is consistent, given the measure of the injury to her left wrist, with the fall on her outstretched left hand, which is the original problem.”[18]
[18]PCB 34
26 Mr Buntine, plastic and hand surgeon, examined the plaintiff for the defendant on 7 January 2014 and 23 March 2015. Mr Buntine was asked by Allianz to undertake an impairment assessment of the plaintiff’s injuries based upon the AMA 4 Guides. It would appear that his attention was not expressly directed to the question of the causation of the left cubital tunnel syndrome; however, he nonetheless made the following comments:
“I noted that the injuries requested to be assessed included the left arm but, as it appears that liability for left ulnar nerve neuropathy including decompression of the left cubital tunnel was not accepted, it is uncertain whether or not any impairment assessed due to left ulnar neuropathy should be relevant to the claim relating to the injury of the 27th August 2008. In any case, I am not absolutely convinced that the diagnosis of left ulnar neuropathy was definitely confirmed as it is reported that the pre-operative nerve conduction study was negative and the subsequent complaints and clinical examination are difficult to interpret in relation to this condition.”[19]
[19]DCB 25
27 I should interpolate at this point that the nerve conduction study was undertaken by Associate Professor Kiers, neurologist, on 16 February 2012. The purpose of the nerve conduction study was to determine whether a diagnosis of left ulnar neuropathy of the left wrist was appropriate. The nerve conduction studies were normal and did not disclose any electrode for evidence of left ulnar neuropathy at the wrist or elbow.[20] Dr Barresi referred the plaintiff to have the nerve conduction study. It is not clear whether Mr Tham was provided with the results of it; however, what is clear, is that Mr Tham made a clinical assessment of left cubital tunnel syndrome, which was the basis of the surgical procedure he performed on 25 October 2012.
[20]PCB 19A
28 Following Mr Buntine’s examination of the plaintiff on 23 March 2015, he made a more specific comment on what he described as the ulnar nerve injury. He firstly described the claim that there was an ulnar nerve injury as being confused. He referred to the nerve conduction study and the lack of clarity regarding the onset of the ulnar nerve injury. All the foregoing led him to conclude that when he examined the plaintiff relevant to her left median and ulnar sensation and ulnar motor function, that her responses to that clinical examination “were largely contrived”. He discounted the claim that the ulnar nerve compression and the malfunctioning of the left ulnar nerve were work related.[21]
[21]DCB 14 and 7
29 The plaintiff saw Dr Barresi on 2 February 2012. The plaintiff told him that she was experiencing pins and needles in the ulnar digits of her hand. The pain was waking her at night. Dr Barresi considered that the plaintiff had developed ulnar neuropathy. Despite the results of the nerve conduction study, he referred the plaintiff back to Mr Tham. Mr Tham informed Dr Barresi of his diagnosis of left cubital tunnel syndrome and of the relevant surgical procedure that he performed on 25 October 2012. Dr Barresi does not appear to have independently arrived at a diagnosis of that condition or whether it was causally related to the initial trauma, but he appears to have accepted Mr Tham’s opinion in that regard.[22]
[22]PCB 21
30 Ms Graham appears to have accepted that the onset of what she described as “nerve compression symptoms” affecting the plaintiff’s left arm were related to the initial trauma.[23]
[23]PCB 27 and 28
31 Mr Tham, Mr Stapleton and Mr Buntine all possess the specialist surgical qualifications making them experts in the field of hand surgery. None were required for cross-examination. Therefore, the task which I must now perform is to determine which of the competing opinions on the question of causation of the left cubital tunnel syndrome I should accept.
32 It is very difficult to go beyond the opinion of Mr Tham. He first saw the plaintiff on 5 November 2008. He was acutely aware of the traumatic incident and the initial injury caused by it. No doubt that knowledge and the examinations he performed permitted him to understand the complexity of the damage to the plaintiff’s left wrist and hand. In that setting, he diagnosed the extent of the damage to the plaintiff’s left wrist and hand and subsequently, undertook four surgical procedures on the plaintiff’s left wrist and hand. I do not have any doubt that he was in the very best position to determine whether the onset of the left cubital tunnel syndrome was causally related to the initial trauma or not.
33 Mr Tham’s opinion on the question of causation has been stated unequivocally. It is supported by the opinion of Mr Stapleton, who, likewise, stated his opinion on causation unequivocally. The nature of their surgical specialty, together with what I consider to be the very adequate history and understanding of the nature and extent of the injury to the plaintiff’s left wrist and hand, place them in a position where they had been able to make an analysis of the trauma and the likely injuries for which that trauma is responsible. Therefore, I have no doubt that the technique they have used in arriving at their opinions on causation are sound, and that I should accept their opinions on causation.
34 Mr Buntine’s opinion on causation should not be dismissed peremptorily; however, it is based upon conclusions he reached regarding the creditworthiness and reliability of the plaintiff. I should pause for a moment to remark that Mr Buntine provided a report dated 13 January 2014, which is reasonably long and very detailed. In the course of his examination of the plaintiff, he considered that the results of his examination created doubt as to the veracity of the plaintiff’s claims, given her reaction to his examination. It led him to conclude that the symptoms complained of by the plaintiff were “consistent with issues of a psychological nature playing a significant role in her previous and present complaints”. Essentially, he considered that whatever evidence there was which he could rely on, pointed to her underlying physical problems having a minimal effect upon her capacity to work and live her life fully.[24] He considered that she did not need any ongoing hand therapy – but rather, repeated reassurance, which I assume means that she has no impediment to pursuing work and her life fully.[25]
[24]DCB 27, DCB 15 and DCB 5
[25]DCB 27
35 What is patently evident is that there is a very significant difference between the opinions of Mr Tham and Mr Stapleton on one side, and Mr Buntine on the other. What Mr Buntine’s opinion amounts to is that Mr Tham and Mr Stapleton have either deliberately been misled by the plaintiff and have simply accepted her at face value, with the result that they have not observed the same reaction to examination as was observed by Mr Buntine. I find that difficult to accept, given Mr Tham’s long-term treatment of the plaintiff and Mr Stapleton’s qualifications and experience.
36 Furthermore, to accept Mr Buntine’s opinion relevant to the diagnosis and treatment of the left cubital syndrome is to accept that Mr Tham misdiagnosed that condition and performed a surgical procedure on the plaintiff’s left hand unnecessarily. Lastly, Mr Buntine’s opinion is riddled with a serious level of criticism of the plaintiff’s creditworthiness and reliability on nearly every issue relevant to a determination of whether the plaintiff has and continues to suffer from an impairment of function of her left lower arm. Those doubts on his part have not been the subject of any observation and comment by Mr Tham, Mr Stapleton, Dr Barresi nor Ms Graham.
37 The observation has been made often enough that serious injury applications are difficult because a trial judge is often faced with having to make an analysis of medical evidence where opinions differ markedly. This is one such case. In the end, and after analysing the medical evidence as carefully as I can in the context of the plaintiff’s evidence, I conclude that the plaintiff is an entirely creditworthy and reliable witness. I do not accept the criticisms made of her by Mr Buntine. I am fortified in reaching those conclusions because of the evidence of Mr Tham, Mr Stapleton, Dr Barresi and Ms Graham, who unequivocally accept the plaintiff as creditworthy and reliable. All accept that there is real pathology at work in the causation of the impairment of function of her left lower arm.
Are the consequences serious?
38 I should firstly deal with the issue of the plaintiff’s creditworthiness and reliability. Mr Miles submitted that this application did not raise issues of the plaintiff’s creditworthiness and reliability; however, I did not take that to mean that I should, therefore, ignore the opinion of Mr Buntine regarding the acceptability of the rise of the plaintiff’s complaints of pain and suffering and loss of enjoyment of life.
39 I thought the plaintiff gave her evidence in a refreshingly straightforward and candid manner. There was nothing that I could detect which hinted at any suggestion of a lack of creditworthiness and reliability. I am fortified in reaching that conclusion because the exposure she had to Mr Tham, Mr Stapleton, Dr Barresi and Ms Graham contain no hint of dissatisfaction on their part concerning the history they were given by the plaintiff of her complaints of pain and disablement. I think that fact is a reliable indicator of the plaintiff’s creditworthiness and reliability.
40 I have carefully read the plaintiff’s affidavits, the transcript of her oral evidence and the histories recorded by the examining medical practitioners of what she has said about the pain and suffering and loss of enjoyment of life consequences she has suffered. Having done so, the conclusion I have reached is that I accept the plaintiff’s evidence in whole.
41 In summary, the plaintiff’s evidence of what she has lost in terms of pain and suffering and loss of enjoyment of life are as follows:
· Immediate pain following the occurrence of the incident, which subsequently required a significant amount of medical treatment including four episodes of surgical treatment and hand therapy, which the plaintiff continues to have at least fortnightly.[26]
[26]PCB 9
· Pain in her left wrist and elbow most of the time. The pain can vary throughout the day. It can worsen if the left arm is placed under pressure.[27]
[27]PCB 10
· Episodes of shooting pain in her wrist and the fingers of her left hand every day.[28]
[28]PCB 10
· Worsening pain in cold weather.[29]
[29]PCB 10
· Swelling in the wrist and elbow. When swelling occurs she applies a compression bandage to the area of swelling.[30]
[30]PCB 10
· Loss of a large amount of feeling in the fourth and fifth fingers of her left hand.[31]
[31]PCB 10
· Loss of feeling in the fourth and fifth fingers has affected her capacity to undertake activities involving fine motor skills. It affects her capacity to type because of difficulty feeling the keys on the keyboard.[32]
[32]PCB 10-11
· The elbow is sensitive to touch.[33]
[33]PCB 11
· The onset of swelling in her lower left arm results in it becoming more painful.[34]
[34]Transcript 33
· An inability to engage in activities requiring heavy and repetitive use of the left hand. An inability to type for prolonged periods, with the necessity to take breaks, and to structure her working day to accommodate her inability to engage in heavy and repetitive use of her left hand.[35]
[35]PCB 11
· The scar on the left elbow produced by the last episode of surgery performed by Mr Tham can be irritated by the seam on clothing. The scar can become red and irritated as a result. She uses barrier cream and anti-inflammatory medication to deal with these episodes.[36]
[36]PCB 11
· The pain which the plaintiff experiences sees her use a modest amount of medication. She takes Nurofen about twice weekly. On those occasions, she might take two tablets at a time. She has hand therapy about once a fortnight with Ms Graham, which relieves the pain and numbness she experiences in her left hand.[37] The treatment involves ultrasound, heat treatment and massage. She finds the hand therapy beneficial.[38]
[37]PCB 11
[38]Transcript 32
· Her capacity to cook has been adversely affected. She is unable to lift heavy pots and pans, and lift heavy meals, such as placing a roast in the oven.[39]
[39]PCB 11 and Transcript 33
· Her capacity to hang up washing has been adversely affected.[40]
[40]PCB 11
· Her capacity to clean her home and use a vacuum cleaner has been adversely affected.[41] Undertaking cleaning can cause pain in the fingers of her left hand and left elbow.[42]
[41]PCB 11
[42]Transcript 33-34
· She cannot lift heavy objects in her left hand. She is concerned that she will drop things due to the loss of sensation in her fourth and fifth fingers. She uses her right hand to undertake lifting tasks more often.[43]
[43]PCB 11
· Her major hobby was knitting. She spent about 10-15 hours per week engaging in knitting. She has reduced that to about two hours per week. She is unable to hold knitting in her left arm. She has been reduced to knitting small things, such as, beanies.[44] She cannot knit heavier garments, such as jumpers.[45]
[44]PCB 11 and Transcript 27-28
[45]Transcript 28
· She played social games of basketball. She described it as one-on-one where it was mainly shooting the basketball, playing against another person. She continued to engage in that social game of basketball until she underwent the last surgical procedure.[46]
· Her capacity to work has been affected to some degree. She structures her working day to accommodate the interference with her capacity work.[47]
[46]PCB 11-12 and Transcript
[47]Transcript 26
42 Of course, whilst serious injury is about what has been lost, I can be informed about what has been lost by what has been retained.[48] It was submitted that when that exercise is undertaken, it points to what the plaintiff has lost as perhaps being moderate in terms of pain and suffering consequences, but not very considerable.
[48]Dwyer v Calco Industries Pty Ltd(No 2) [2008] VSCA 260
43 The particular matters to which my attention was directed were:
· The plaintiff is right-hand dominant.[49]
[49]Transcript 10
· The plaintiff is in full-time employment. Her performance reviews reveal that she is performing to the expectations of her employer.[50] She is able to travel interstate by plane fortnightly; however, her left elbow and hand swell when she flies. She uses a compression bandage over her left elbow when that occurs.[51]
[50]Transcript 10
[51]Transcript 22-23
· At the time the plaintiff suffered injury, she was studying for a Master’s degree in commerce at Swinburne University. She has put her studies on hold for the moment. She needs to complete a further six months’ study to obtain that qualification. She proposes to undertake further study after completing the Master’s degree.[52]
[52]Transcript 11
· The plaintiff is able to undertake tasks involving manual operations, such as knitting, typing and putting on earrings. She is slower in undertaking those tasks, but has modified her approach to them.[53] She occasionally types with her left hand.[54]
[53]Transcript 13
[54]Transcript 16
· The only treatment she is presently having is hand therapy provided by Ms Graham.[55]
[55]Transcript 14
· The plaintiff can turn a tap, although it is a bit harder. She can pick things up, although it can be painful when she does so.[56]
[56]Transcript 15
· The plaintiff is able to wear most types of clothing and can avoid the irritation caused to the scar around her left elbow.[57]
[57]Transcript 16-17
· Her only resort to other treatment, apart from seeing Ms Graham, is the use of barrier cream on the scar around her left elbow and taking Nurofen for pain relief about twice a week. On those occasions, she might take two tablets at a time.[58]
[58]Transcript 19
· The plaintiff is able to undertake cooking and domestic cleaning of her apartment.[59]
· The plaintiff is able to engage in normal social outings on a regular basis.[60]
[59]Transcript 20-21
[60]Transcript 25
Findings on the evidence
44 Essentially, the submissions of the defendant were that the plaintiff has retained a significant level of functioning in all aspects of her life, and in particular, her capacity to work, study, engage in undertaking domestic tasks, and engage in social activities. Additionally, her medical treatment is limited to the hand therapy provided by Ms Graham and modest levels of the use of creams and over-the-counter medication.
45 The defendant relied upon the opinion of Mr Tham that it was his belief that the plaintiff’s injuries would not restrict her ability to resume normal leisure, social and domestic activities. Mr Tham’s optimism, in the longer term, has not been borne out. It is not an opinion consistent with the opinions of Mr Stapleton, Mr Buntine, Dr Barresi and Ms Graham. In any event, I accept the plaintiff’s evidence that the injuries have impaired the function of her left lower arm to such an extent that it has resulted in pain and suffering consequences affecting nearly every aspect of her day-to-day life.
46 The approach I have taken in determining whether the pain and suffering consequences are serious or not is consistent with Haden Engineering Pty Ltd v McKinnon[61] and Dwyer v Calco Timbers Pty Ltd (No 2).[62] On this footing, the conclusions I have reached are that the plaintiff suffered particularly nasty injuries to her non-dominant left hand which have left her with each of the problems which I have summarised in paragraph 41 above. What is clear, is that nearly every aspect of her daily life is affected by the impairment of function of her left lower arm. The extent of that impairment can be measured by the fact that the plaintiff cannot engage in a number of activities which involve placing stress and strain on her left lower arm.
[61](2010) 31 VR 1
[62][2008] VSCA 260
47 I am fortified in reaching the foregoing conclusions because they are consistent with the opinions of Mr Tham, Dr Barresi, Mr Stapleton and Ms Graham. Although I repeat, Mr Tham was optimistic that the plaintiff would obtain a better result than she has. I am not persuaded that I should accept much of Mr Buntine’s opinion. I repeat my analysis of his opinion set out above.
48 Whilst it is clear that the plaintiff has retained a capacity to function, I do not consider that what she has retained demonstrates that what she has lost is only moderate. All of the factors pointed to by the defendant which are said to constitute what the plaintiff has retained, are an ability on her part to engage in activity, but not fully, and in many respects to a significantly lesser degree. For example, simple activities such as typing, lifting and carrying heavier items when cooking, engaging in routine domestic tasks, and being able to fly in a plane without suffering the onset of significant swelling are activities that she can do – but what is clear in my impression of the plaintiff, is that what she has lost with respect to each of those is significant and made all the more significant because what she has lost is permanent.
Conclusion
49 Therefore, I am satisfied that the impairment of the function of the plaintiff’s left lower limb has resulted in pain and suffering consequences that are “at least very considerable”, and therefore, “serious”. I have reached that conclusion by making a comparison with like impairments, as I am obliged to do. I think the impairment suffered by the plaintiff measures well against other impairments for which leave has been granted.
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