Schultes v Lanskey Constructions Pty Ltd
[2019] VCC 425
•8 April 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-18-04400
| ROY SCHULTES | Plaintiff |
| v | |
| LANSKEY CONSTRUCTIONS PTY LTD (ACN 010 636 512) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 April 2019 | |
DATE OF JUDGMENT: | 8 April 2019 | |
CASE MAY BE CITED AS: | Schultes v Lanskey Constructions Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 425 | |
REASONS FOR JUDGMENT
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Subject: Serious Injury
Catchwords: Claim by carpenter for damages for pain and suffering arising out of incident in the course of employment leading to injury of left wrist – whether injury “serious”.
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 – ss325, 327, 335.
Cases Cited:Hayden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Sutton v Laminex Pty Ltd [2011] VSCA 52; Davidson v Transport Accident Commission [2015] VSCA 12; Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67; Palmer Tube Mills (Aust) Pty Ltd & Anor v Semi [1998] 4 VR 439.
Judgment:Application for leave to commence a damages claim for pain and suffering only is granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N. J. Dunstan | Galbally & O’Bryan |
| For the Defendant | Mr A. W. Middleton | Russell Kennedy |
HIS HONOUR:
Background
1 Mr Schultes is a classic motorcycle enthusiast. Born in 1965, he migrated from his native Ireland, arriving in Australia in 2009. Mr Schultes has no formal trade qualifications but throughout his life, both in Ireland and Australia, he has done carpentry work in the building trade. He left school at the age of 12. (Court Book (“CB”) pages 4-5) He imported six classic motorcycles, five of which he still owns. He sold a Harley Davidson and replaced it with a Japanese model. (Transcript (“T”) 26-27)
2 In February 2011, Mr Schultes began permanent employment with the defendant, Lanskey Constructions Pty Ltd, as a site manager/carpenter. He said his duties “involved assisting in the running of building projects including coordinating labour, delivery of materials, liaising with tradesmen and attending site meetings”. (CB 5, paragraph 7) At that stage, he said he “enjoyed good general health. [He] had no prior injury or symptoms involving [his] left wrist”. (Ibid, paragraph 8)
3 In December 2014, Mr Schultes says he was working on a construction site for a KFC complex in Ferntree Gully Road, Glen Waverley. He was working alone and without the assistance of a labourer. He said:
“My job at the time of accident was to relocate the poles used to mount the KFC signage. The poles had been placed by persons unknown in an incorrect position. There were two poles to move each approximately 2.5 metres high, inset into the ground and secured at the foot by a ball of concrete. In the lead-up to the injury I had extracted one pole and was in the process of extracting the second pole. This involved digging it out to a depth of approximately 700 millimetres with a hole diameter of approximately 900 millimetres. The particular pole I was extracting from the hole at the time of the accident was secured at base by a ball of concrete with a diameter of approximately 600 to 700 millimetres. As I was extracting the pole from the hole with attached heavy ball of concrete I twisted my left wrist. I experienced pain and ceased work immediately attending a local doctor close by.” (CB 5-6, paragraph 9)
4 Mr Schultes was initially treated by a general practitioner, Dr Graeme Freemantle, of the Forest Hill Medical Centre. He was referred for specialist treatment, first to Mr Andrew Cavallo, plastic surgeon, and then to a hand surgeon, Mr Peter Maloney, whom he first attended in March 2015. (CB 6, paragraph 10)
5 Mr Maloney performed two surgical procedures on Mr Schultes’ left wrist, the first on 13 July 2015 (CB 17, CB 6, paragraph 11) being a left wrist arthroscopy and debridement. The second procedure was on 22 February 2016, being an ulna shortening osteotomy. (CB 18, CB 6, paragraph 11) He also attended a hand therapist, Ms Bernadette Kelly, “but ceased treatment probably in late 2016 because [he] was getting no lasting improvement”. (CB 7, paragraph 11) As at 31 May 2018, when he swore his first affidavit in this proceeding, he said he was not having any current treatment for his injury, but took over-the-counter medication for pain in the form of Ibuprofen or Panadol, “typically two tablets in the morning and two tablets at night”. (CB 7, paragraph 13) Mr Maloney last reviewed Mr Schultes on 1 December 2016. An MRI scan showed degenerative changes but no evidence of de Quervain’s tenosynovitis. (CB 19)
6 Mr Schultes was made redundant by the defendant because, according to its state manager, “they would not be able to provide [Mr Schultes] with suitable duties”. (CB 9, paragraph 19) Mr Schultes said that he has “a capacity to work as a site manager/supervisor provided the duties do not require any forceful use of [his] left wrist”. (CB 9, paragraph 18) From 2015, he “obtained work as a building supervisor working on commercial constructions sites” being employed by Dura and later Credo. His work as a site manager does not require him to undertake physical activity involving his left wrist. (CB 9, paragraphs 20-21)
7 Mr Schultes believes the pain in his left wrist is getting worse. He said, “The pain is always present and ranges from between 2 or 3 out of 10 to 6 or 7 out of 10, depending on what I am doing.” Activities requiring firm gripping or twisting movements or repetitive movements of the left hand make pain worse immediately or later on. He said, “The pain never goes away”. (CB 11-12, paragraph 6) He said that if he does work which places pressure on his left wrist, he puts on a left wrist guard which “provides support but doesn’t help much”. He said he has reduced grip strength. (CB 12, paragraph 7) In recent months, he said he had been “buying hemp oil, online from the USA”. He rubs it on his left wrist and “also takes drops orally every day. It helps a bit but the pain is still there.” (CB 12, paragraph 8)
8 Mr Schultes and his wife are horse enthusiasts. He owns a Clydesdale which he loves to ride, but he finds it “too difficult to handle and to prepare for riding because of [his] left wrist problem”. He recently sold his Harley Davidson motorcycle which was his “pride and joy”. He said, after the accident, he could not ride it comfortably “because of vibration, the positioning of the handlebars and the grip strength required to make gear changes”. (CB 12-13, paragraph 10)
9 Mr Schultes lives on a small rural property. He said he recently sold his old tractor “because the steering would aggravate [his] left wrist symptoms”. (CB 13, paragraph 11) He has since purchased a new tractor in the past year which was easier on his left wrist “but it is still a problem doing tractor work”. (Ibid)
10 Mr Schultes says that amongst his pre-accident recreational interests were boating and fishing. He owns a 25 foot fishing boat which he has now put up for sale. He said he was able to operate it, tow it and launch it single handed, but the injury to his left wrist now precludes him from being “able to get the boat on and off the trailer by myself or pull up the anchor”. (CB 13, paragraph 12) Mr Schultes also complains of broken sleep when his left wrist “tends to throb to the extent that it wakes me and causes broken/disturbed sleep”. (CB 7, paragraph 14)
Expert opinions
11 Treating hand surgeon, Mr Maloney, provided a report to Mr Schultes’ lawyers by letter dated 25 September 2017. Mr Maloney described his attendances and the procedures which he carried out. On examination at the initial consultation on 26 March 2015, Mr Maloney found ─
“… there was an effusion emanating from the ulna carpal joint. His range of motion [of the left wrist] was limited particularly with ulna deviation with a positive impingement sign noted and radial deviation was limited to 30° because of pain within the ulnar carpal joint. On palpation, he was tender within the ulna carpal joint itself, particularly in the foveal area, but the distal radial ulnar joint itself was free of any pain and free also of any instability features.” (CB 17)
12 Reviewing CT scans and an MRI, Mr Maloney found that these demonstrated “a small bony fragment of the dorsum of the lunate possibly reflective of an old scapholunate but certainly not a new injury clinically”. (Ibid) The arthroscopic procedure carried out in July 2015 showed ─
“… a high-grade irregular TFCC [triangular fibro cartilage complex] tear requiring resection of the entire meniscal homolog. There was also associated full thickness chondral wear of the ulna aspect of the lunate which exposed subchondral bone in keeping with grade four changes and full thickness changes of the hamate with impaction of the type two lunate all in keeping and associated with a grade two lunotriquetral instability all in keeping with a case of co-existent ulna carpal impaction.” (CB 17)
13 Mr Maloney said that Mr Schultes saw him again on 31 August 2015 “with ongoing pain in the left wrist”. He referred Mr Schultes for nerve conduction studies which suggested “relatively mild compression of the median nerve of the carpal tunnel on the left side”. (CB 18) Mr Maloney then carried out the ulna shortening osteotomy at 2 millimetres on 22 February 2016.
14 At a consultation on 20 October 2016, Mr Maloney made the observations quoted earlier in the judgment and had his last consultation with Mr Schultes on 1 December 2016. Mr Maloney reported that Mr Schultes “had a flare of ulnar carpal pain because of work-related activity, which became evident because [of] pre-existing ulnar carpal impaction”. This ulnar carpal impaction was consistent with the type of injury he sustained with the heavy weight at the end of the pole. Mr Maloney said the injury was permanent. Mr Maloney concluded that Mr Schultes’ ─
“… pain restriction and disability derived from the physical injury sustained at work. Prior to this he was able to participate and work as a carpenter without prescriptions.” (CB 19-20)
15 At the request of the defendant’s solicitors, Mr Schultes attended Mr Murray J Stapleton, plastic and hand surgeon, for medico-legal assessment on 26 February this year. When he attended Mr Stapleton, he was wearing the splint referred on his left wrist. Mr Stapleton commented that, upon removal of the splint, “it was clear that there was very little sun exposure to the skin beneath the splint, indicating that he was wearing the splint on a day-to-day basis”. (CB 31) Mr Stapleton found gross limitation in left wrist movement, flexion was limited to 15 degrees out of a normal 90 degrees, extension to 20 degrees, in comparison to a normal range of 85 degrees. Radial deviation and ulnar deviation were both limited to 5 degrees in comparison to a normal range of 40 degrees and 25 degrees respectively. (Ibid) Mr Stapleton said the left wrist injury was “consistent with the stated cause”. He said the condition was permanent and the prognosis was poor. The injury, he said, “contributed to an aggravation of the hitherto unknown wrist joint degeneration”, and should now be regarded as permanent. Mr Stapleton saw “no sign of exaggeration of this gentleman’s condition”. (Ibid) He noted that Mr Maloney had suggested that the only further available treatment was a left wrist fusion which was not acceptable to Mr Schultes. (CB 30) Mr Stapleton recorded that Mr Schultes was “adamant that there were no symptoms or signs of any wrist problem” prior to the accident. He observed “It is clear that [Mr Schultes] has a congenital abnormality described as ulnar abutment syndrome; that is brought about by an ulnar positive variant where the ulna is longer than otherwise it might have been and that causes a degeneration in the articulation on the ulnar side of the wrist joint.” (CB 30)
Legal Considerations
16 It is common ground that Mr Schultes is a “worker” within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). Section 326 of the Act restricts the ability of a worker to bring damages “in respect of an injury arising out of, or in the course of, or due to the nature of, employment”. Section 327 provides that such a damages claim may be brought “if the injury is a serious injury”. Section 335 provides that the worker may not bring proceedings for the recovery of damages in respect of such an injury unless the Victorian WorkCover Authority issues a certificate consenting to the bringing of the proceedings or “a court other than the Magistrates’ Court gives leave to bring the proceedings”.
17 The term “serious injury” is defined in s325 of the Act as follows:
“(a) permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d) loss of a foetus”
18 In this proceeding, Mr Schultes seeks a finding that he has sustained a serious injury arising out of the events during his employment in December 2014. He relies solely on paragraph (a) of the definition.
19 Section 325(2) of the Act makes further provision as to the concepts relative to serious injury inter alia as follows:
“For the purposes of the assessment of serious injury in accordance with section 335(2) and (5)—
…
(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i)pain and suffering; or
(ii)loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
(c) an impairment or loss of a body function or a disfigurement is not to be held to be serious for the purposes of section 335(2) unless—
(i)the pain and suffering consequence; or
(ii)the loss of earning capacity consequence—
is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;
…
(j) the assessment of serious injury must be made at the time that the application is heard by the court, unless sections 348 and 358 apply;”
20 Sections 348 and 358 do not apply to the present proceeding.
21 Mr Schultes seeks damages only for the pain and suffering consequences of his injury and not for pecuniary loss.
Conclusions
Defendant’s submissions
22 Mr Middleton, counsel for the defendant, submitted that no finding of “serious injury” should be made in favour of this plaintiff for a number of reasons. First, in cross-examining the plaintiff, he played a number of short sequences of video surveillance which, it was accepted, were made in February of this year.
23 According to Mr Middleton, “we see in the film moderate lifting”. (T46, L11) One of the sequences depicted Mr Schultes at a Bunnings Warehouse selecting a number of pine posts. Another showed him selecting small items from a number of bins at ground level in one of the aisles in the Warehouse.
24 Mr Middleton submitted, “When pulling items out of the shelf, he shows no evidence that he's in pain and in my submission, the film demonstrates that his complaints of ongoing pain are not as significant as he attests to.” (Ibid, L17-21)
25 Mr Middleton continued:
“The film also, in my submission, shows a range of movement of the wrist which is more than what the measurements that Mr Stapleton took.” (Ibid, L29-31)
26 He made the same observation relative to a sequence which depicted Mr Schultes carrying a case of cider from a supermarket bottleshop. (T47)
27 Mr Middleton stressed that Mr Schultes:
“has not had any active treatment for a long period of time. He takes over the counter medication only. In his affidavit he says up to four times a day, he says in his evidence sometimes up to six.” (T45, L21-25)
28 Mr Middleton observed that in cross-examination, and for the first time, Mr Schultes described taking Tramadol furnished to him, presumably upon some informal basis, by his mother-in-law. He invited me to be sceptical as to the truth of this evidence. (Ibid, L25-31)
29 Mr Middleton said that Mr Schultes still drives his tractor and works in a similar occupation. He concluded, “the claimed restrictions are not borne out by the film”. (T46, L9-10)
30 Mr Middleton said that Mr Schultes still rides horses and his motorcycle, according to his affidavit.
31 Mr Middleton stressed the lack of up-to-date medical evidence. The last report from Mr Maloney was dated 2017, referrable to the last consultation of Mr Maloney in December 2016. (T66, L13-26)
32 As to the measurements of wrist motion recorded by Mr Stapleton in his report, according to Mr Middleton, this should be treated as entirely subjective. (T65, L27-29) Mr Middleton commented:
“There's no palpation for pain, no active compared to passive movement of the wrist. There's no description of any pain on movement, it's just the restriction of movement.” (T66, L10-13)
33 More generally, Mr Middleton drew attention to the admission by Mr Schultes that he had falsely claimed loss of earnings benefits when he was in fact engaged in full-time employment, which entailed his having to repay the amounts received and be subject to prosecution.
34 Mr Schultes said in mitigation, “I was struggling financially at the time”. (CB 9, paragraph 20)
Plaintiff’s submissions
35 Mr Dunstan, on behalf of the plaintiff, submitted that there is no reason not to take Mr Schultes’ evidence at face value. He said that after a thorough cross-examination by defendant’s counsel, the plaintiff’s credit “has not been impugned”. (T47, L27)
36 Mr Dunstan referred to the evidence of Mr Schultes of varying pain occurring, for instance, in the face of any attempt to lift something moderately heavy or upon gripping or twisting movements of the left hand and sleep disturbances. (T48, L1-10) He said that evidence was effectively unchallenged. (Ibid, L12-23) As to the video he said, “the work is done by the right hand and the left hand guides …”. (T48, L27-28)
37 The total surveillance video was no more than 10 or 15 minutes, yet it was derived from surveillance periods which, on the defendant’s own admission, extended over some 26 hours. (T48, L29 – T49, L8)
38 Mr Dunstan said there was nothing in the cross-examination or the video surveillance which effectively challenged the lifestyle deposed to by Mr Schultes. (T49, L9-25)
39 Mr Dunstan said that such was his client’s passion for motorbike riding that he brought some six of them from Ireland. He has had to relinquish riding the Harley Davidson because of the vibration which it generates. (T50, L1-16) Mr Dunstan said that Mr Schultes’ inability to join whole heartedly in motorbike riding because of the vibration entailed in controlling the bikes robs him of enjoyment of life. (T50, L18 – T51, L3)
40 Next, Mr Dunstan referred to Mr Schultes’ inability to undertake general handyman work which, before the accident, he enjoyed and indulged in extensively. (CB 8, paragraph 17, T51, L28 – T52, L15)
41 Mr Dunstan conceded that the left hand was not Mr Schultes’ dominant one. He remarked, “but we have only got two of them”. (T52, L23-24) Mr Dunstan said that his client should be regarded as a stoic. (Ibid, L28) He said I should accept Mr Schultes’ evidence that his wrist is getting worse and should treat Mr Stapleton as being accepting of that view. (T53, L4-16) He noted that Mr Stapleton expressed no scepticism as to the necessity for Mr Schultes to wear a splint. (T53, L27 – T54, L5) Mr Dunstan also mentioned evidence from the plaintiff that he had previously enjoyed riding a Clydesdale horse, which he can no longer ride. (T55, L19-30)
42 Mr Dunstan said his client was a relatively young man at 54 and “he has a restricted work capacity permanently because of his left wrist”. (T57, L5-7) As to stoic plaintiffs, Mr Dunstan referred to the judgment of Maxwell P in Hayden Engineering Pty Ltd v McKinnon [2010] VSCA 69 [10]-[17].
43 Mr Dunstan noted that even although Mr Schultes modified his activities to conform to his pain and restrictions, and continued to engage in activities such as motorbike riding and horse riding to some limited extent, this could be regarded as part of his character as a stoical plaintiff. He referred to Sutton v Laminex Pty Ltd [2011] VSCA 52 [83] per Tate JA. (T61, L15 – T62, L10)
44 Mr Dunstan submitted the court should consider the possibility or likelihood of future surgery. He referred to Davidson v Transport Accident Commission [2015] VSCA 12 [49] per Beach JA.
45 Mr Dunstan said that, as a result of his injury, Mr Schultes had suffered a narrowing of employment opportunities, and this was regarded as a factor tending to establish the seriousness of an injury. He referred to Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67 [45] per Maxwell P.
Disposition
46 The “seriousness” of an injury for the purposes of the provisions of the Act under consideration is to be judged by reference to the consequences of that injury. (Section 325(2)(b) and (c))
47 In the present case, I accept Mr Middleton’s contention that one should not uncritically accept Mr Stapleton’s assessment of the injury and its consequences. The gross findings of restrictions of motion in the wrist recorded by Mr Stapleton are difficult to square with what is seen in the video surveillance. It is true that observation of informal presentation in video surveillance material relative to the wrist is far more difficult and problematic than making similar observations as to informal presentation relative to the low back and the neck. The movements of a subject’s skull and bodily trunk are observable even where the video recording is made from some distance away in a manner that movements of a subject’s hand are not.
48 Accepting that Mr Schultes’ search through small building components, such as bolts in the bottom shelf in an aisle at Bunnings, does not entail weight carrying or significant twisting, it does nevertheless entail a degree of movement and manipulation going beyond the range of motion observed and recorded by Mr Stapleton in his report.
49 Again, the use of the wrist by Mr Schultes in his selection and loading of pine wood posts and the case of cider demonstrates an ability to engage in apparently effortless lifting of moderately heavy objects which Mr Schultes denied in his own evidence before the court. For these purposes, a house brick could be regarded as “moderately heavy”. (T24, L6-7)
50 Mr Schultes was therefore willing to concede that the pine posts and the case of cider involved “moderate lifts”. (T38, L9-12)
51 It is difficult to escape the conclusion that Mr Schultes did not demonstrate his true range of motion of the left wrist to Mr Stapleton. His actions in claiming loss of earnings benefits whilst he was engaged in employment, and his willingness to sign certificates of incapacity at relevant times (Exhibit 1), indicate a need to approach his evidence and his presentation to medical examiners with a degree of scepticism. As Brooking JA remarked:
“Moreover, in “serious injury” applications the credit of the applicant is of great importance, not only directly but also indirectly. For so often the opinions of medical witnesses or other experts depend upon what they have been told by the applicant and upon the applicant's behaviour or performance on examination or upon testing. The bona fides of a deponent are best explored in cross-examination: Re Smith and Fawcett Ltd. [1942] Ch. 304 at 308 per Lord Greene M.R.”
Palmer Tube Mills (Aust) Pty Ltd & Anor v Semi [1998] 4 VR 439, 448
52 Despite this, I accept Mr Dunstan’s broad submission that his complaint of pain and restrictions stood largely unchallenged. The medical evidence of joint pathology is clear. There is nothing to contradict Mr Schultes’ evidence that his left wrist was asymptomatic until the incident in December 2014. The finding by Mr Maloney of indicia of an old injury does not directly deny Mr Schultes’ account. The finding is entirely consistent with an incident in perhaps the relatively remote past which resolved without ongoing disability. That a young man in the construction industry might suffer such an injury and not remember it decades later is quite conceivable.
53 Again, I accept the contention that, as a result of this injury, Mr Schultes has had his employment prospects narrowed, precluding him from engaging in work in the building industry involving significant physical effort extending to his left arm.
54 There was nothing to lead to the rejection of Mr Schultes’ evidence that he has suffered loss of enjoyment of life in the limitation of activities which he had previously enjoyed, such as horse riding and motorcycle riding. This remains the case even if the restriction has not gone the distance of completely ruling these activities out.
55 Finally, there is the matter of ongoing pain and sleep disturbance. True it is that Mr Schultes has not undergone any treatment for his wrist for some years, apart from the use of over-the-counter analgesics. I agree with Mr Middleton that the reference to the use of Tramadol should be treated with some scepticism, having regard to the circumstances in which it emerged. I am confident that this matter would have been brought out in a supplementary affidavit or viva voce evidence-in-chief by Mr Dunstan, had the use of Tramadol been part of his instructions. I put this evidence to one side.
56 As a matter of logic, an injury does not cease to be serious merely because it is not apt for ongoing treatment. To take an extreme example, if a plaintiff suffered an amputation following the immediate post-operative stage, there may be little treatment that can or should be given to the remaining stump. This would not in any way diminish the seriousness of the injury.
57 Whilst Mr Schultes is not in the first flush of youth, he has at least a decade of further working life and no doubt years of retirement thereafter. The permanence of the injury, and the potential for further deterioration and potentially the need for a fusion of the left wrist, also support the view that the consequences of this injury for him meet the criterion of seriousness as elaborated by s325 of the Act.
58 Leave should be granted to the plaintiff to bring his damages claim for pain and suffering.
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