Sidhu v Noisette Bakery Pty Ltd
[2018] VCC 1506
•18 September 2018
| IN THE COUNTY COURT OF VICTORIA AT COMMON LAW DIVISION | Revised Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-00165
| JASDEEP SIDHU | Plaintiff |
| v | |
| NOISETTE BAKERY PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 August 2018 | |
DATE OF JUDGMENT: | 18 September 2018 | |
CASE MAY BE CITED AS: | Sidhu v Noisette Bakery Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018 VCC | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – dominant right arm – paragraph (a) pain and suffering only – range
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Hunter v Transport Accident Commission [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Humphries & Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) (2008) VSCA 260; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181;
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Hill | Slater and Gordon Ltd Lawyers |
| For the Defendant | Mr C A Miles | Wisewould Mahony Lawyers |
HIS HONOUR:
1 By way of Originating Motion dated 17 January 2018, Jasdeep Sidhu (“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 an injury to his right arm on or about 21 July 2012 (“the injury”) during the course of his employment with Noisette Bakery Pty Ltd (“the defendant”).
2 The plaintiff seeks leave to bring proceedings in relation to the injury for “pain and suffering damages only” within the meaning of s134AB(37) of the Act.
3 The plaintiff was the only witness who gave evidence and was cross-examined. Both parties tendered various 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 134AB(19)(a) of the Act
5 The plaintiff initially relied on paragraphs (a) and (c) of the definition of “serious injury” contained in s134AB(37) of the Act, but at the commencement of the proceeding, counsel for the plaintiff made plain that he would only rely on paragraph (a) of the definition of “serious injury”.
6 Paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act reads:
“‘Serious injury’ means –
(a) permanent serious impairment or loss of a body function; ... .”
7 The part of the body said to be impaired for the purposes of paragraph (a) is the dominant right arm.
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 defendant on or after 20 October 1999;[3]
(b)the “injury” and the resulting impairment under paragraph (a) 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 injury in relation to “pain and suffering must be “serious” – that is, the impairment or loss of function is:
“… when judged by comparison with other cases in the range of possible impairments … as the case may be … fairly described as being more than significant or marked, and as being at least very considerable.”[5]
This test is sometimes referred to as the “narrative test”.
[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 Pty Ltd & Ors v Podolak (op cit) at paragraph [33]
[5]See s134AB(38)(b) and (c) 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 purpose 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”;[6]
[6]See s134AB(38)(h) of the Act
(b) must make the assessment of “serious injury” at the time the application is heard;[7]
[7]See s134AB(38)(i) of the Act
(c) must give reasons that disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application;[8]
(d) notes that the question of whether an “injury” satisfies the narrative test is largely a question of impression or value judgement.[9]
[8]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraph [33]-[36]
[9]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issues
10 When counsel for the defendant was queried as to the issues, he succinctly replied: “It’s a range case, pure and simple”.[10]
[10]Transcript (“T”) 8, Lines (“L”) 31
11 Mr Miles also confirmed there was no issue about compensable injury and no issue about some impairment, the fundamental issue being whether or not the plaintiff satisfied the narrative test.
The evidence of the Plaintiff
12 The plaintiff relies on his affidavits sworn on 30 August 2017 (“the first affidavit”); 10 May 2018 (“the second affidavit”) and 24 August 2018 (“the third affidavit”). At the commencement of his evidence-in-chief, the plaintiff stated that he had recently read his affidavits and that they were “true and correct” and he did not wish to make any changes.[11]
[11]T10, L1-8
13 By way of his first affidavit, the plaintiff gave the following salient evidence:
·He was born in India on 11 February 1989 and is currently twenty-nine years of age.
·After completing his secondary schooling in India, he came to Australia in 2009, where he then completed a two-year Advanced Diploma in Commercial Cookery at Swinburne University. He then worked for approximately one year, on a casual basis, for Schwob’s Swiss Bakery in Murrumbeena, where he worked as an assistant baker.
·In August 2011, he began working on a part-time basis as a baker with the defendant, who was situated in Dandenong South. The plaintiff described this as a “wholesale bakery” and he worked there for about twenty hours a week, mainly making sourdough breads.
·He was injured during the course of his employment with the defendant on 21 July 2012. In paragraph 6 of his first affidavit he described the injury in the following terms:
“The injury occurred in an accident when I was in the oven room. I had placed bread on the conveyor belt of a new machine and was inspecting bread in the ovens before the bread on the conveyor was to be loaded into the ovens. Whilst I was standing facing the oven another worker, without warning, started the conveyor belt. When he did this my chef’s jacket became caught on the conveyor belt and I was pulled towards an open oven door. To stop myself from being into the oven I forced myself against the oven door and in doing so fractured my right arm.”[12]
[12]See exhibit 1, paragraph [6] of the plaintiff’s first affidavit at page 13 Plaintiff’s Court Book (“PCB”)
·After he suffered his injury, he was taken by ambulance to the Dandenong Hospital, where an x-ray confirmed he had a fractured right humerus. On 1 August 2012, he underwent surgery, being an open reduction and internal fixation. At that time, he had a metal plate and screws inserted into his right arm, where they have remained. After the operation, he had a period of physiotherapy treatment at the Dandenong Hospital and then privately with a Mr Barry Nguyen. The plaintiff notes that the physiotherapy treatment was mainly oriented to his right shoulder, which had become stiff and sore after the accident.
·He did not return to work with the defendant after his injury, and his psychological state deteriorated, causing him to experience a lot of nightmares and flashbacks about his injury. At that time, he could not face the prospect of returning to work with the defendant or being around large machinery.
·His treating doctor at that time was Dr Jim Demirtzoglou, and in mid-2013 he was referred to a psychiatrist, Dr Vinay Kumar, and briefly prescribed antidepressant medication.
·Over the period between September 2013 to October 2015, he returned to India, where he “worked” on becoming less anxious and unsettled. In particular, he carried out yoga and meditation at the Chaitanya Foundation in New Delhi with Guru Anoop Yogi. He then returned to Australia in late 2015, after which he worked for approximately three months as a baker on a casual basis at the Temptation Bakery in Chelsea Heights.
·In May 2016, he commenced work as a baker at the Rustic Café Bakery in Mordialloc, performing work forty hours a week and mainly making sourdough products. At the time of his first affidavit he continued to work there, and noted that although he had ongoing right arm problems, he has been able to cope with the work as there is “not too much heavy lifting involved”.[13]
[13]See exhibit 1, paragraph [10] of the plaintiff’s first affidavit at page 14 PCB
·After returning to Australia, he has again briefly returned to India two more times, the first in January 2016, when he was married, and in July/August 2017 for two weeks when, again, he saw Guru Anoop Yogi.
·At the time of swearing his first affidavit, the plaintiff noted:
– that his right arm often feels heavy where the fracture occurred and the metal plate is situated, and this is more so with much use of his right arm
– his right arm can become painful in the injured area with too much use of it and he does not have much right arm strength now
– his right arm also affects how he drives, for example, if he drives more than one hour he gets a heavy, uncomfortable feeling in his right arm and right shoulder
– he cannot lift heavy weights with his right arm and it is painful if he rolls onto it when sleeping
– since the injury he has a decreased range of movement in his right shoulder and movements, such as getting his right arm behind his back, which is now more difficult
– right arm symptoms are worse in cold weather
– the effect of the right arm injury is “greater” because he is right-hand dominant.
·He does not have a treating doctor in Melbourne, and for pain relief he takes Panadol or Nurofen approximately eight times a month to ease right arm pain and aching. Sometimes in cooler weather he applies a hot water bottled to the right arm and that can help to ease the ache/pain. He also applies coconut oil on the right arm scars, which he thinks softens the skin and may also lighten the scarring.
·The plaintiff believes that his earning potential has been “affected” as he will now be less able to work in larger commercial bakeries where heavier lifting is involved. He noted that at larger bakeries, and on night shift, he could have earned more money, but he still gets anxious at the thought of working with large machinery. He noted that he still has recollections of the accident, which can be upsetting.
·The plaintiff noted that prior to his injury he enjoyed often playing cricket, and noted that although he did not play cricket in Australia on a competitive basis, when working with the defendant he played on a social basis most weekends with fellow workers at parks in Clayton and Springvale. He described himself as a reasonably good cricketer – an all-rounder – and that the right arm injury would affect him both in his bowling and batting. He noted that he has not played cricket since the injury, but believes to do so would cause right arm pain and could cause further injury, and he is concerned not to let that occur.
·When the plaintiff was in India, and from about the ages of fifteen to nineteen, he was a “good badminton player and [he] even played at a national level”.[14] The plaintiff notes that although he has not played badminton in Australia, he would have liked to have taken it up here, but for the right arm injury. However, in the same way as he thinks about cricket, he is anxious about any activities such as this for fear of causing pain and further injury to his right arm.
[14]See exhibit 1, paragraph [18] of the plaintiff’s first affidavit at page 16 PCB
14 I refer to the second affidavit of the plaintiff wherein he deposed, in particular:
·That since his first affidavit, his arm injury has remained “about the same” and he does not currently see any doctor. In particular, he noted that he does not see any doctors because they all told him there was nothing further they could do for him. It was suggested by some that the metal plate could come out of his arm, but he was also told that it probably will not make any difference in terms of ongoing symptoms.
·He confirmed that he is right-hand dominant and continues to have pain in the right arm, which extends from around the shoulder down the top part of his right arm. He noted that the pain is not always bad and is normally like an ache, however, more significant pain occurs after use, in colder weather, or after holding his arm in the one position. The pain also comes on at night if he rolls over on his right side and always has a “heavy feeling”.
·He continues to take pain medication, which he buys over the counter, and this consists of taking about ten or so tablets every week, consisting of either Nurofen or Panadol, when he gets pain in the right arm. He continues to do yoga and tries to move the right arm so as to keep up the range of movement.
·At the end of a long day at work he has increased pain in the arm, which is associated with increased heaviness in the arm. Particularly, holding the arm in one position increases the pain, and if driving for an extended period he gets increased pain in the top part of his arm. He noted that he often puts his right arm down when driving beyond about thirty minutes to one hour, and drives only with his left hand.
·At the time of swearing his second affidavit, he was working five days a week, from Tuesday to Saturday, and he has been asked by his employer whether he could work extra shifts, to which he told his employer he could not do more shifts because of the right arm pain, and he is limited with his right arm, the way it is, working full time.
·Prior to his injury he slept well, and he now does not sleep as well as he did prior to the injury – waking up through the night if he rolls onto his right side.
·Whereas prior to his injury, he had a full range of movement in his left arm and shoulder and his right arm and shoulder, he now has restricted movement in the right arm and shoulder. He describes that he can only get his right arm up a little bit above his head and he cannot reach to get a box off a shelf above-head height. He cannot use both his arms to get something from above-head height.
·He also confirmed that prior to his injury he played badminton and would return to India every year, playing in Delhi, for the New Era Badminton Club. This was at an Indian state level, and he noted that he played in March 2010 and also February or March 2011. He was intending to play in 2012, but could not play because of his injury. In particular, he deposed that he could not play badminton today and will “never play again”, as there is no way he could move his arm with the sudden jolting movements required. Furthermore, there is just no way he could get his arm up to hit with a racquet, as required in that sport. To his second affidavit, he annexes various correspondence from the Delhi Badminton Association and the New Era Badminton Club confirming some of the tournaments he has played in.
·He again confirmed that he regularly played social cricket in Australia before the injury to his right arm and stated that there is “no way I could play cricket anymore”. He noted that cricket was a “big part of my life”, as he enjoyed it both as a social outlet and exercise.
·He continues to use a hot water bottle on his arm, particularly over the winter. If his arm was not as painful, he would certainly do more work (his employer has offered him more shifts) but does not want to aggravate the arm in any way.
·He deposed that it was always his “intention to one day obtain work in a commercial bakery”.[15] He explained that commercial bakeries paid more, but it is heavier work, as larger trays are placed in larger ovens. Furthermore, there are bigger quantities of ingredients and more lifting and carrying, and he does not believe he could do these heavy duties with his right arm the way it is.
·He continues to have difficulty doing some domestic duties at home and, more particularly reaching things from height, and that his wife now does most of the heavy duties around the house, which he previously did.
·He tends to use his left arm all the time to try and make up for the things he cannot do with his right arm.
·He described how his life has “changed a great deal”[16] as a result of lacking significant movement in his dominant right shoulder. He described going back to India in January 2008 and previous years in order to see his family and, previously, to play badminton. He has trouble with moving the heavy bags and relies on his left arm a lot and could not load any of the heavier bags into the overhead baggage compartments on the plane.
[15]See exhibit 1, paragraph [14] of the plaintiff’s second affidavit at page 24 PCB
[16]See exhibit 1, paragraph [17] of the plaintiff’s second affidavit at page 25 PCB
15 I refer to the third affidavit of the plaintiff, wherein he deposed, in particular:
·He continues to work ten days per fortnight.
·During sleep, when he rolls on to his right side, he gets pain in his arm which causes him to wake up and it takes a while to get back to sleep. His sleep is often interrupted and he wakes up in the morning feeling tired.
·His right arm pain increases throughout the day at work and he has increased pain virtually every day at the conclusion of his shift. Such pain also increases with driving and holding his arm in one position.
·In particular, he was offered an extra day of work per fortnight, but declined because of his right arm pain, and if he had no right arm pain he would have worked the extra day. Furthermore, he would have liked to have performed commercial baking, but cannot do this now.
·He continues to take about eight to ten tablets of Nurofen or Panadol per week, when he has increased pain in his arm.
·His range of movement in the right arm is still reduced and his right shoulder feels like it catches with the metal in there, and he cannot lift his arm all the way up. He describes how he can lift his arm slowly about halfway and is unable to put his hand behind his back. Furthermore, all movements are limited in the right shoulder, whereas his left arm movement remains “perfect”.
·He deposed that his right arm pain, symptoms and problems have remained the same over the last few years, as detailed in his affidavit.
The medical treatment of the Plaintiff
16 Following his injury, the plaintiff was conveyed to the Emergency Department of the Monash Medical Centre. Examination at that time revealed that movement of his right shoulder and elbow were limited by pain. An x-ray showed a displaced oblique fracture through the mid-shaft of the humerus. At that stage, his wound was dressed, a plaster was applied to the upperr arm and he was discharged to return to the fracture clinic.
17 When seen at the clinic on 31 July, the x-ray showed no change and he was admitted to hospital on 1 August 2012, to undergo an open reduction and internal fixation involving a metal plate and screws. Post-operative x-ray showed a good position had been achieved. Outpatient review occurred on several occasions up until 2 January 2013, when x-rays showed callus formation with decreased distinctiveness of the fracture line. At that time, he was discharged from the fracture clinic, but was to continue with physiotherapy for his shoulder.
18 The plaintiff consulted Dr Jim Demirtzoglou on 2 January 2013, when he gave a history of his work injury occurring on 21 July 2012. At that time, Dr Demirtzoglou noted that the plaintiff had an obvious right arm scar due to the surgical repair, and had slight pain on full right arm abduction. Although he accepted that he could go back to some type of work given that his fracture had now healed, the plaintiff considered that he could not go back to his old employer, where the injury had occurred. Furthermore, at that time, he was still experiencing “stress” from the circumstances of his injury.
19 In his report dated 31 May 2013,[17] Dr Demirtzoglou noted that the plaintiff had suffered a significant physical injury to his right arm and also significant “emotional trauma”, which gave rise to “flashbacks” and “stress”. Dr Demirtzoglou said the plaintiff could return to work but in a different working environment. Because of his flashbacks and the like, Dr Demirtzoglou referred the plaintiff to the psychiatrist, Dr Vinay Kumar. Dr Demirtzoglou reported on 29 August 2013,[18] where he noted that Dr Kumar consulted with the plaintiff on 16 July 2013 and considered that he was suffering from a Major Post-Traumatic Stress Disorder, and was placed on an antidepressant and considered to be unfit for work at that time.
[17]See exhibit 2, report dated 31 May 2013, at page 37 PCB
[18]See exhibit 2, report dated 29 August 2013, at page 43 PCB
20 In a report dated 13 December 2015, Dr Demirtzoglou noted that the plaintiff last consulted him in 2013.
21 I also refer to the report dated 17 September 2016 from Yogi Anoop, the founder/director of the Chaitanya Foundation in New Delhi. He reported that the plaintiff was referred to him through the parents of the plaintiff, as they wanted him to follow the “natural path” in healing of his psychological issues and assisting with the pain. Yogi Anoop prescribed yogic and meditative exercises and a few exercises for his arm over a period of one-and-a-half years. Yogi Anoop considered that this treatment did assist him and helped him to improve his sleep and the stability of his mind.
The medico-legal material
22 The plaintiff relied on a medico-legal report from the orthopaedic surgeon, Mr John O’Brien, who examined the plaintiff on 18 April 2018.[19]
[19]See exhibit 3, report dated 18 April 2018, at pages 48-51 PCB
23 At that examination, the plaintiff stated:
·That he continues to experience persistent pain localised to the mid region of the right upper arm, which he reported as associated with some restriction of movement of the right shoulder.
·The severity of the pain can reach 6/10 on the Visual Analogue Scale and it can be aggravated by lifting, cold weather and prolonged driving.
·He feels that the pain also causes disturbance of sleep.
·He feels that the arm does feel constantly heavy.
·That his treatment consists of the use of some ten to twelve Panadol or Nurofen tablets per week – although he is not currently receiving any other medical treatment. He also continues to use meditation and yoga to control pain and improve right-dominant arm function.
·He accepts he is quite capable of normal activities of daily living, but does limited domestic tasks.
·He is capable of driving a car and is now working in a full-time position as a baker.
·Prior to the accident, he played competitive badminton at a very high level and that he had been unable to return to this sport, as he lacks considerable strength in the right arm.
24 On examination, Mr O’Brien noted that the plaintiff presented with a flat affect. In relation to the right arm and shoulder, he noted there was no obvious wasting of the muscles of the right shoulder girdle. Flexion of the right shoulder was 140 degrees with 90 degrees of abduction, together with 30 degrees extension and 30 degrees of adduction. Furthermore, there was 60 degrees of internal rotation and 80 degrees of external rotation.
The plaintiff reported pain and the extremes of movement, particularly flexion and abduction, and it was considered that there was some generalised weakness of the muscles of the right shoulder girdle. Right elbow flexion was from 0 to 140 degrees, and active flexion of the elbow against resistance demonstrated a little weakness. Remaining movements of the right upper limb were intact. There was a full painless range of movement of the left shoulder, elbow and hand.
25 Mr O’Brien, although not having the x-rays available, did have the reports, and in particular the last report dated 2 February 2013, in which he noted that that report described internal fixation of the oblique right humeral mid-shaft fracture unchanged in position, with some callus formation.
26 Mr O’Brien, noting that the plaintiff sustained a fracture of the mid-shaft to the right humerus, which was subsequently treated surgically with sound fracture union, noted that the plaintiff did continue to describe some arm pain and limited shoulder movement. In particular, Mr O’Brien stated:
“The patient does in fact demonstrate definite restriction, particularly of flexion and abduction of the right shoulder. This would suggest some residual dysfunction in the muscles of the right shoulder girdle. Clinically there also appeared to be some increased external rotation of the right arm in relationship to the left, suggesting the presence of some mild external rotation deformity at the fracture site.
Indeed, clinically the facture is soundly united. Residual symptoms would appear secondary to soft tissue injury sustained in association with the fracture.
The injury is consistent with the stated cause.
I would indeed regard the clinical condition as stable, given it is almost six years since injury … .”[20]
[20]See exhibit 3, report dated 18 April 2018, at pages 49-50 PCB
27 Mr O’Brien also noted that the plaintiff reported a mild residual disability associated with the function of his right dominant arm and although he has been capable of returning to his previous injury work as a baker, he does experience some difficulty by loss of function of the arm, particularly above shoulder level. Mr O’Brien noted that this has had a major effect on the plaintiff’s pre-injury sporting endeavours, with him being precluded from returning to badminton. Mr O’Brien further concluded:
“Thus, overall the patient now is somewhat limited in his general, social, domestic and recreational activities and this, I would suggest, will be a permanent situation.”[21]
[21]See exhibit 3, report dated 18 April 2018, at page 50 PCB
28 The defendant relied on the following medico-legal reports:
(a)Reports from the occupational physician, Dr David Barton, who medico-legally examined the plaintiff on 28 August 2013[22] and supplied a supplementary report dated 9 September 2013;[23]
(b)A report of the consultant psychiatrist, Dr Richard Prytula, who medico-legally examined the plaintiff on 11 January 2017;[24]
(c)The report of the orthopaedic surgeon, Associate Professor Miron Goldwasser, who medico-legally examined the plaintiff on 10 January 2017 in order to perform an independent impairment assessment;[25]
(d)The report of the orthopaedic surgeon, Mr Ian Jones, who medico-legally examined the plaintiff on 27 January 2017.[26]
Given the nature of the application, I only refer to the more recent reports, as there is no issue as to the occurrence of injury and the treatment undertaken. Furthermore, I only make passing reference to the report of the consultant psychiatrist, Dr Prytula, given that the plaintiff makes no reliance on any type of “mental injury” in support of his Serious Injury Application. However, it is to be noted that Dr Prytula found the plaintiff to be “pleasant and cooperative and gave a direct history”.[27] Furthermore, Dr Prytula found that the mood of the plaintiff showed no abnormality during the assessment, and that he was of the view that he suffered from no current psychiatric illness.
[22]See exhibit “A”, report dated 30 August 2013, at pages 1-6 Defendant’s Court Book (“DCB”)
[23]See exhibit “A”, supplementary report dated 9 September 2013, at pages 7-8 DCB
[24]See exhibit “A”, report dated 11 January 2017, at pages 9-15 DCB
[25]See exhibit “A”, report dated 11 January 2017, at pages 20-31 DCB
[26]See exhibit “A”, report dated 27 November 2017, at pages 32-37 DCB
[27]See exhibit “A”, reported dated 11 January 2017, at page 12 DCB
29 In his report, Associate Professor Goldwasser who, as I have already noted, was examining the plaintiff to make a whole person impairment assessment, considered the plaintiff had a reasonable, but not a full range, of motion in his right shoulder and right elbow.
30 However, a history was obtained that he wakes up at night if he lies on his right shoulder and that although there has been a reasonable return of movement, it is not “completely full”.
31 In particular, the plaintiff gave a history that he noted his symptoms are more prominent in the colder weather and at that time he tends to use a hot water bottle four or five times a week. He was also, at the time of that examination, taking over-the-counter medications for symptoms. Such medication included Panadol and Nurofen, and also, on occasion, he rubs a gel into his upper arm.
32 When examined by the orthopaedic surgeon, Mr Jones, the plaintiff gave a history of the then current complaints:
·Symptoms of pain, indicating the mid-portion of his right upper arm, if he sleeps on the right side. Sometimes he rolls onto his right side, which will cause him to wake up and the need to take Panadol.
·A complaint of a “heavy feeling” in the right upper arm, particularly when holding his right arm on a steering wheel for protracted periods of between fifty to sixty minutes.
·Some limitation of the extremes of movement of his right shoulder.
·The plaintiff informed Mr Jones he is not having any formal treatment at present, although he does continue to do his yoga, which assists with his reported symptoms of anxiety and stress. Since his injury, he has not been involved in any of the domestic activities within the house. Mr Jones also obtained the history of the inability of the plaintiff continuing to play social cricket and badminton since his injury.
33 Examination of the right shoulder by Mr Jones revealed a restricted range of abduction measured at 120 degrees, with limited flexion of 120 degrees, external rotation of 80 degrees, internal rotation of 50 degrees, extension 40 degrees and adduction of 50 degrees.
34 In particular, Mr Jones noted that there were no functional symptoms in the plaintiff’s presentation. Ultimately, Mr Jones stated:
“(a)Mr Sidhu’s right shoulder stiffness, secondary to treatment for his upper arm injury, limits him to usefulness of his right arm at or below shoulder height. The restriction of movement in his right shoulder would preclude him from heaving (sic) pulling or pushing above shoulder height.
(b)Mr Sidhu is capable of lifting weights of 5 kg up to the level of shoulder height.
(c)Repetitive attempts at use of his dominant right arm above shoulder height would likely see an increase in his level of shoulder stiffness and pain.
(d)The effects of the patient’s stiffness in his right shoulder and the aching symptoms he describes in his right upper arm permanent.”[28]
[28]See exhibit “A”, report dated 27 November 2017, at page 37 DCB
35 I also point out a document headed “REASONS FOR OPINION” from the Medical Panel, which was one of the documents in the Plaintiff’s Court Book, was also tendered, with no objection from the parties. I do point out that it is unclear whether, in the circumstances of this matter, the reasons of the Medical Panel are admissible. Counsel for the plaintiff, who did not object to counsel for the defendant using such reasons for the purpose of cross-examination, referred to the decision of Yirga-Denbu v Victorian WorkCover Authority[29] and, in particular, at paragraphs [41]-[60]. Both counsel submitted that, as a matter as practice, reasons are frequently admitted.
[29][2018] VSCA 35
36 I refer to the contents of such “reasons for opinion” and note that the plaintiff was examined by members of the Panel on 11 April 2017. In particular, according to the members of the Panel, the plaintiff stated in relation to his “current status” that his right shoulder movements are restricted and there has been no significant change in that for the last six months. He said that he has no pain in his right shoulder although he does have pain in his right arm and, in particular, at the fracture site of the mid-humeral shaft. Such pain is intermittent and has not changed significantly over the last six months. The plaintiff also stated that the pain can come on if he sleeps on his right side and at times wakes him at night, and that prolonged use of the right arm can also bring on this pain. Furthermore, the plaintiff noted that his right arm feels “stiff and heavy” in winter, and as a result he wears warmer clothing to cover his right arm in winter, and at times applies a hot water bottle to his right arm.
37 The plaintiff also gave a history that he can do his normal duties as a baker in his current employment, but noted the trays only weight about 3.5 kilograms and the work is “not heavy”. The plaintiff also described that he is able to drive his car for about an hour and then his right arm feels heavy and, furthermore, he has not played cricket or badminton since his injury.
38 The Panel expressed the opinion that the plaintiff was suffering from “residual right shoulder dysfunction and surgical scarring, following a fracture of the shaft of the right humerus, treated surgically, relevant to the accepted right arm injury”.[30] Furthermore, the Panel was of the opinion that the plaintiff’s “current physical injury” has stabilised.
[30]PCB 56
The cross-examination of the Plaintiff
39 Under cross-examination, the plaintiff agreed that since September 2013, he had not seen a doctor in relation to his right arm, had not been prescribed medication, had not seen a physiotherapist and had not undergone any x-rays or investigations of the right arm/shoulder.
40 The plaintiff also accepted, after his injury with the defendant, he was reluctant to return to work at that particular work site because he was “afraid”. He also accepted that apart from that worksite with the defendant, his general practitioner (Dr Demirtzoglou) cleared him to return to work on normal duties as at March 2013. However, the plaintiff gave this evidence.:
A: “Yeah, but I wasn’t mentally prepared to work, because I was – I was getting flashbacks – flashbacks.”[31]
[31]T11, L19-20
41 Furthermore, the plaintiff also qualified his fitness to return to work in early 2013, in that he could not “like to do all heavy work I was doing at the bakery”.[32] The plaintiff also gave evidence that he did attend a psychiatrist, Dr Kumar, in September 2013 and then from September 2013, for approximately two years, he was under the care of a yogi guru and practising traditional methods of healing. The plaintiff accepted that on his return to Australia in 2015, his mental issues had “got better”.
[32]T11, L23
42 The plaintiff also agreed that before his employment with the defendant he had been employed as a casual assistant baker with Schwob’s Swiss Bakery and that when employed by the defendant, he worked part-time about twenty hours a week.
43 It was put to the plaintiff that he was earning more in his current employment than he was earning before the injury, either at Schwob’s Swiss Bakery or with the defendant. The plaintiff disagreed with such proposition and said he was earning more with the defendant. The following evidence was given:
Q: “Your tax documents indicate that your current earnings exceed what you were earning at Noisette. Can you explain that?---
A: I don’t know, because I used to have more money at Noisette. I get less here.
Q: All right. Well let’s just see.
HIS HONOUR:
Q: When you were working – or is that – I think counsel put to you you were doing 20 hours a week, were you?---
A: Yes.
Q: And those 20 hours – is that all the hours you could get, and you chose to do that, or could have worked more if you wanted to?---
A: More. It was because I was on – I can’t exceed more – 20 hours to work.
Q: Because of what , visa?---
A: Yeah, terms and conditions, so I was working - - -
Q: Is that a visa condition?---
A: Yes.
Q: Yes.
MR MILES:
Q: Yes. And your work at Noisette’s - was that day work or night work or what?---
A: Night work.
Q: Was that starting at 4 am or earlier than that?---
A: No, no, it’s like evening shift, but it goes up to, like, until night.
Q: So you worked pretty well the whole night?---
A: Yeah. Sometimes you work, like, 10, - you start at 10 o’clock at night.
Q: Yes, and then it would have been extra loading, I imagine, for working at night?---
A: Yep.
Q: Was that what happened?---
A: Yep.
Q: You got extra money because you worked at night?---
A: Yes, yes.
Q: Still, looking at your tax document in 2011, you declared a gross income of $14,800 - and perhaps your lawyers are following this to make sure I am not misleading you. In the 2012 year, you grossed $42,000, you hurt your arm at the end of the 2012 year - you hurt your arm in July, I think, of 2012?---
A: Yes.
Q: So in the year before you hurt your arm, your gross earnings according to your tax returns were $42,070. I suggest to you that your gross income for the 2017 year from the trustees for the Holbing – H-o-l-b-i-n-g - Family Trust was $50,112 - - -?---
A: I - - -
Q: Perhaps I can show you the document that I am reading from, and you see if – so I’ll show you the two documents. I’ll show you the 2012 tax return and I will show you the document that I read to you from. Just ignore the underlining. Do you see what I am saying? I put a yellow mark on your 2012 return?---
A: Yep.
Q: And does that show a figure of $42,000-odd.
HIS HONOUR:
Q: Mr Sidhu, you know where you are being referred to, or - can you find where you are supposed to be looking at?
A: Sorry, what?
Q: Do you see where counsel is referring you to?---
A: Yeah, I’m just trying to have a look.
MR MILES:
Q: Perhaps I’ll help, Mr Sidhu. There is two total gross plans. Perhaps if you hand me back the tax return, I’ll indicate the other figure. So you see I’ve underlined two payments in the 2012 tax return?---
A: Yes.
Q: And one is the figure I put to you of $42,000?---
A: Yep.
Q: And there is another figure of $47,749?---
A: Yes.
Q: So I suggest to you, your total earnings for 2012 were that figure - $47,749?---
A: Yes.
Q: Yes, so do you now accept that your earnings in the 2012 year were less than your earnings in the 2017 year?---
A: Yeah, I was working less hours before then and now I am working, like, full-time but I am getting - - -
HIS HONOUR:
Q: Just on that, I was going to ask you that - as I understood your evidence, up until the time that you suffered this injury in or about July 2012, you were working 20 hours a week. That 20 hours may sometimes be afternoon or nightshifts, is that right?---
A: Night - it’s just nightshift.
Q: Just nightshift?---
A: Yep.
Q: And as counsel suggested to you, you have got some sort of loading for working that nightshift?---
A: Yes.
Q: Is that correct?---
A: Yes.
Q: Now, for the financial year finishing in 2017 - so a year or so ago - - -?---
A: Yes.
Q: - - -I think it’s been suggested to you that you earned – 56, was it?---
A: Fifty.
Q: $50,112, and how many hours a week are you working in that job at that time?---
A: Forty hours.
Q: Forty hours, and that is just daytime shift?---
A: Yes.
Q: And did you get any loadings at all?---
A: No.
Q: No. Yes, thank you.”[33]
[33]T12, L22-T15, L8
44 Counsel for the defendant put to the plaintiff that he told the Medical Panel that he can do all the normal duties in his current work as a baker, to which the plaintiff agreed. In particular, the following evidence was given:
Q: “And that’s the truth, isn’t it, you can do all the - - -?---
A: Yes.
Q: - - - normal duties?---
A: But - - -
Q: And that includes mixing dough and carrying trays?---
A: Yeah.
Q: You currently start your current job at four in the morning, is that correct?---
A: Yes.
Q: And that’s about the normal time for non-commercial bakers to start?---
A: Yes.
HIS HONOUR:
Q: Just so I understand, when counsel use the word “non-commercial”, what do you mean by that?---
A: Commercial bakeries are usually they’re doing all the wholesale to the small cafes in Melbourne.
Q: Right, so they’re not open to the public or - - -?---
A: No.
Q: So, if I go to my shopping centre and I see a bakery where I can go and get a, you know, maybe meat pies through to cakes and sponges and things like that, that’s a bakery, but is that not a commercial bakery?- - -
A: Yeah.
Q: But a commercial bakery is where, as you say, that’s a bigger enterprise?---
A: Bigger factory, sir.
Q: Bigger factory, and they – and goods are taken from the factory to, as you say, outlets, cafes, whatever it might be?---
A: Cafes, yes.
…
MR MILES:
Q: You’ve had the same job now for about two years?---
A: Yes.
Q: And you’re working effectively in that job?---
A: Yes.
Q: And you’ve been attending work regularly and reliably?---
A: Yes.
Q: You’ve told the medical pane (sic) and, again, this is at plaintiff’s court book 54, that you have no pain in your right shoulder, is that an accurate recording of what you told them?---
A: Ah, I do have pain in the shoulder, but if I have pain – if I get continuous use of this arm I get pain in my whole arm here.
Q: You don’t have pain in the shoulder, but you have pain in the arm?---
A: In the arm and sometimes it goes up to the shoulder sometimes if I use more continuously - - -
HIS HONOUR:
Q: Basically, you just described – you’re saying sometimes you have pain in your shoulder, but other times not all the time, but other times the pain runs from the shoulder, how far down the arm?---
A: Oh, just up to here.
Q: The elbow?---
A: Yeah.
Q: I see, and that comes, how often does that come on?---
A: Oh, if I – if I use like continuous arm at work, sometimes if I do moulding of the bread, I get pain in my arm.
Q: And as far as you can say, what if anything, brings on the pain in the shoulder you describe, the same thing, or something different?---
A: No, sometimes if I try to put my arm above my head so I get my pain on my shoulder towards the back of my arm.
Q: Yes, thank you.
MR MILES:
Q: This is what you’ve told the medical panel, you have no pain in your right shoulder, you said that you do have pain in the right arm and you indicated the pain is around the fracture site?---
A: Yes.
Q: Would that be an accurate description?---
A: Yeah.
Q: Yes; but the pain is intermittent that’s what you told the medical panel, is that - - -?---
A: Sorry, what?
Q: That the pain is intermittent?
HIS HONOUR:
Q: Every now and again?---
A: Yes, yes.
Q: And as I understood your evidence, you’re saying – you’re not suggesting – you tell me if I’m wrong about this. I understood your evidence to be that you don’t have pain there all the time, but if you overuse your arm - - -?---
A: Yes.
Q: - - - or you get sometimes pain and sometimes pain if you’re required to use your arm any time to try and move it above shoulder height?---
A: Yes.”[34]
[34]T18, L30-T21, L3
45 When the Court queried as to whether the plaintiff could give some idea as to the frequency as to when the pain came on, the following evidence was given:
“…
A: Usually, if I – if I’m at work, um, or if I use like kind of my arm in one like if I’m driving, if more than half an hour up to 45 minutes I get- start getting pain in my arm.
Q: Well, what I’m really asking and, again, I stress, only answer this if you can, the pain you’ve been describing, does that happen once a year, once a week, once a month or - - -?---
A: Oh, no, usually every day.”[35]
[35]T21, L14-21
46 It was put to the plaintiff that when he saw Mr Goldwasser in January 2017, the plaintiff told that doctor that he was taking five tablets of Panadol and Nurofen per month – that is to say, ten tablets per month, and the plaintiff agreed with that proposition but added that at that time he was taking, he thought, about ten to twelve tablets per month.[36]
[36]T22, L4-13
47 Further, it was put to the plaintiff that when he attended the Medical Panel in April 2017, he informed the Panel that he was taking seven to eight tablets per month of Paracetamol, which is Panadol or Nurofen, to which the plaintiff agreed. When it was asked whether that was an accurate record, the plaintiff stated:
“Yeah, it was always between like - back then I was taking around eight to ten, ten to 12, like this. But after that I increased.”[37]
[37]T22, L19-21
48 When queried as to how many tablets he takes a week now, the plaintiff stated he takes about eight to ten of the same sort of tablets a week. In particular, the following evidence was given:
“HIS HONOUR:
Q: … You understand what’s being put to you, Mr Sidhu. Just so that I understand too, when you saw Mr Goldwasser in early 2017, the history was effectively you were taking ten tablets per month?---
A: Yeah.
Q: Panadol and Nurofen. When, a little bit later in that year you went to the medical panel, you said you were taking about eight tablets per month. And what’s being put to you now is that the history obtained by Mr O’Brien, the doctor you were sent to I think by your solicitors, and you saw him on the 18th of April 2018 – he has reported that you said that your treatment now consists of the use of ten to 12 Panadol or Nurofen tablets per week. Now, what you’re being asked about is – firstly, is that an accurate history you gave Mr O’Brien, that you have been taking around this time ten to 12 Panadol or Nurofen tablets per week? Is that correct?- - -
A: Per week, yep.
Q: I just want to ask you about this, I just don’t quite understand what you’re saying. On the basis that you were taking eight to ten tablets per month in early 2017, can you comment on why you are now taking ten to 12 Panadol per week?---
A: Yeah.
Q: Do you understand the question?---
A: Yeah, so that’s what I’m telling. I get really, really painful in my arm every day when I’m working. I get exhausted by this arm, get exhausted. So that’s why I put my more – I added my more tablets on my everyday basis, what I’m taking every day a week. Like - - -
Q: And when you take these ten to 12 Panadol per week, do you take them in the morning or night?---
A: Or after – sometimes coming after work, or sometimes if I get pain in my arm during the sleep, then I take – then I wake up and take tablet.
Q: Yes, thank you.”[38]
[38]T24, L25-T25, L27
49 It was put to the plaintiff that he was exaggerating his tablet intake for the purposes of the case, to which he flatly answered “No, sir”.[39]
[39]T26, L9-10
50 The plaintiff described that prior to his injury, he used to drive to a variety of places near to Melbourne or sometimes to other States of Australia, but since his injury, he does not do that type of driving. He gave the example that although he does not go interstate, sometimes he goes towards the city or the airport and his arm gets “really painful”.[40]
[40]T27, L8
51 The plaintiff confirmed that he had never played cricket in a club or a competition, but did play while he was working as a baker with the defendant. When queried by the Court as to whether he had any particular role in playing cricket, he described himself as a “bowler”. The plaintiff described how he played social cricket with workmates from the defendant and that occurred on Saturdays and Sundays most weekends, leading up to his injury, whereas, before that he had played less regularly, about two weekends a month. He stated that he has not tried to play cricket as he considers that bowling or batting would impact on his right arm injury.
52 The plaintiff confirmed that he played club-level badminton in India between the ages of fifteen and nineteen, but had never played in Australia. There was documentation available from India which suggested that he last played badminton on 18 March 2011, and the plaintiff agreed with such suggestion.
53 In particular, the plaintiff gave evidence, under cross-examination, that he would return to India to play badminton. When queried as to why this was undertaken, the following evidence was given:
Q: “And any particular reason you did that?---
A: Yes, sir, I was – I was always in the State level competition so I was going every year to play that.
Q: Okay, and I’m just curious, you say you haven’t been involved in badminton or played badminton since you’ve been in Australia, is there any reason for that?---
A: Sir, I couldn’t play because my parents were like paying my all of the stuff here, I wasn’t working, at that time, so it’s playing like expensive.
Q: To play badminton?---
A: Yeah.”[41]
[41]T32, L15-24
54 The plaintiff stated that, insofar as his lack of sleep is concerned, he does not take any medication to assist with sleep, such as a home remedy, or milk, or other substances. Furthermore, he has not been to a doctor to seek support. The plaintiff also accepted that Yogi Anoop has taught him various exercises and techniques to improve his sleep and they do assist with his sleep.
55 The plaintiff accepted that he returns to India about once a year, in part, to see his parents and, in part, to study more yoga, which he finds “enjoyable and satisfying.”[42]
[42]T34, L4
56 The plaintiff also accepted that he told the Medical Panel that he spends all of his free time practising yoga, and when it was put to him that was an interest of his, the plaintiff responded:
“…
A: It’s not – it’s just helping me to calm my mental illness down..
Q: You’ve told various doctors, including Mr O’Brien at plaintiff’s court book 49, and Mr Goldwasser at defendant’s court book 22, that you can perform all the normal activities of daily living, you can shower yourself, wash yourself, dress yourself, that sort of thing?---
A: Yeah, that I can do.
Q: And your left arm is trouble-free?----
A: Yes.
Q: It works normally?---
A: Left arm?
Q: Yes?---
A: Yeah.”[43]
[43]T34, L11-22
The re-examination of the Plaintiff
57 Under re-examination, the Plaintiff was asked what was his capacity to work in a commercial bakery, and the following evidence was given:
“…
A: Oh, before my injury the – in commercial bakeries there’s trays and there’s massive big ovens and the trays are usually weighing around 20 to 25 kilos and it has like almost 15 trays per trolley and which I - - -
HIS HONOUR:
Q: So, 15 trays in another or - - -?---
A: In one trolley.
Q: In a trolley?---
A: Yeah, which I have to – which I used to bake it, and but now it’s the – for now I’m doing the café baking which is just for the shop and it’s not that much baking involved now.
Q: Tell me, just so I understand this, the baking that you do now, the non-commercial baking in the shop, as it were, what sort of tray size do you have to lift there?---
A: Oh, it’s very small like normal – the oven is just like four trays oven, it’s not a big oven.
Q: Yes, can you give any indication as to what the weight of a loaded tray may be?---
A: Ah, the maximum tray which we have like just one tray – two trays which it’s almost five kilos.
Q: That’s with cakes or whatever you’re baking?---
A: Yes, it’s – we have like small loaf of bread so it’s not that heavy (indistinct).
Q: And in terms of the commercial trays which you’ve just described, could you give me some indication of what their lengths and widths are?---
A: It’s kind of like before we used to have this kind of big trays.
Q: What would you say, do you reckon about a metre?---
A: Ah – and, um, ah, there I was working at the - - -
Q: I don’t want you to guess, but can you say as to what approximate weight those commercial trays would be, loaded?---
A: Twenty kilos.
Q: And what do you say, if anything, there’s a problem about that?---
A: Sorry?
Q: About working commercial work?---
A: I can’t do it because I’ve got pain in my arm. I can’t do heavy work, can’t lift it. And before – like you have to load the oven, and the conveyor belt goes inside the big large ovens, stone ovens. And I can’t lift it right now, because the weight is almost like 40 to 45 kilos on the stretcher.
Q: It’s right to say though, that before your injury you had not worked in a commercial bakery, had you? Or am I wrong about that?---
A: No, I was working at the – before my injury I was working at the commercial bakery.
Q: I apologise, it was a commercial bakery?---
A: Yeah.
Q: And that’s where you’re doing the 20 hours a week?---
A: Yeah.”[44]
[44]T35, L4-T36, L16
58 When queried as to what type of baking he would be doing if uninjured, the plaintiff gave evidence that he believed he would be working in a commercial bakery, because the comparable wages between a commercial bakery and a residential bakery were better. In particular, the plaintiff gave evidence that if he was doing a full-time job in a commercial bakery he believed he would earn “like 70 to $75,000 package per year”.[45]
[45]T36, L25-29
59 The plaintiff was reminded of him being questioned about certain comments he had made to the Medical Panel and, in particular, he was taken back to the reasons for the Medical Panel decision and, in particular, at page 54 of the Plaintiff’s Court Book, wherein the plaintiff was taken to what he stated to the Medical Panel, which was:
“He said that he does have pain in his right arm, and he indicated that the pain is around the fracture site of the mid humeral shaft, but the pain is intermittent, and hasn’t changed significantly over the last 6 months. He said that the pain can come on if he sleeps on his right side, and at times wakes him at night. He said that at times prolonged use of his right arm can also bring on this pain. He said that sensation in his right arm is normal.”
The plaintiff accepted that this is a correct description of his pain.
60 When re-examined about the pain that he has at night and what he does to assist the pain, the plaintiff stated:
“I just wake up and take Panadol or medication, and just go back to bed and put some hot water bottle or gel on it. But after that, it’s not – it’s not a deep sleep, it’s not a good sleep I get.”[46]
[46]T39, L6-9
61 When asked some further questions about his involvement with cricket, the plaintiff indicated that he was a bowler, but was also an “all-rounder” In particular, the following evidence was given:
“HIS HONOUR:
Q: You were an all rounder, were you?---
A: Yeah. I used to do more bowling, but I was a all rounder.
MR HILL:
Q: And what sort of bowling – spin bowler?---
A: Mid pace.
Q: You said that you haven’t tried since you suffered the injury. Can you tell this court why it is that you haven’t tried?---
A: I – I don’t have that movement to try bowling. I get pain, I can’t – I can’t – I don’t’ have the movement of - - -
HIS HONOUR:
Q: I was going to ask you this. The arm over the shoulder – on any type of bowling the arm has to go over the shoulder. What do you say your ability to do that would be?---
A: No, I can’t do it.
Q: And also the other thing I wanted to ask you – did you play cricket in India?---
A: Yeah,. just like - but normal like social cricket. It’s not - - -
Q: And what’s your view about cricket?---
A: It’s – it’s favourite game, I think everyone watches.
Q: What’s your view about it?---
A: Yeah, it’s a good game.”[47]
[47]T39, L15-T40, L1
62 When queried about him not playing badminton in Australia, the plaintiff explained that badminton is more expensive in Australia than in India and that he was not earning any money in Australia at that time, and was entirely supported by his parents.
63 In particular, the plaintiff confirmed he would go back to India for those two or three weeks and go straight into badminton tournament and, in particular, the plaintiff stated:
“I was having a very good interest in state level over there. And my parents were funding me over here for studies and living, so I couldn’t ask for more money for (sic) them.”[48]
[48]T41, L6-9
Conclusion
64 There is no issue that the plaintiff suffered a compensable issue to his dominant right arm during the course of his employment with the defendant on or about 21 July 2012.
65 The nature of the injury was a fractured right humerus resulting in surgery on 1 August 2012 consisting of an open reduction and internal fixation with a metal plate and screws. The defendant, no doubt based on the available medical evidence, does not dispute that there is some permanent impairment, but disputes that any pain and suffering consequences suffered by the plaintiff satisfied the so-called narrative test.
66 Before setting out my findings, it is apposite to comment on the credibility of the plaintiff. Although counsel for the defendant did not submit that the plaintiff was generally a discreditable witness, he did point to the significant variation in tablet intake over a relatively short period. Counsel put to the plaintiff that such variation was brought about to improve his prospects in this application rather than any worsening of the pain, which the plaintiff denied. Counsel for the defendant made clear in his submissions that such issue did go to the credit of the plaintiff.
67 I had the advantage of observing the plaintiff being very competently cross-examined and ultimately came to the view that the plaintiff was an impressive witness, who gave frank and seemingly honest answers to the questions posed to him. At no time did I gain the impression that he was attempting to “over yoke” any of his symptoms that he says he suffers as a result of his right arm injury.
68 As I have already noted in this Judgment, Dr Prytula, the consultant psychiatrist retained by the defendant, found the plaintiff to be “pleasant and cooperative and gave a direct history”. I endorse such opinion. Furthermore, and perhaps more importantly, the orthopaedic surgeon, Mr Ian Jones, who medico-legally examined the plaintiff on behalf of the defendant on 27 November 2017, noted that he was unable “to demonstrate any functional symptoms in this man’s presentation”. Again, I endorse such opinion and, indeed, although the plaintiff freely admitted having psychological symptoms for a period after the injury, such symptoms dissipated as a result of treatment by a psychiatrist in Melbourne, and by what he referred to as traditional methods by a Yogi.
69 Furthermore, no doctor suggested that any of the complaints listed by the plaintiff were fanciful or not related to the organic injury to his right arm. Indeed, the most recent examinations by the orthopaedic surgeons, Mr O’Brien (on behalf of the plaintiff) and Mr Ian Jones (on behalf of the defendant), clearly accept that the plaintiff has restriction in his right arm above his shoulder and suffers various symptoms in his right arm as a result of the injury and that condition is “permanent” (see reports of Mr O’Brien and Mr Jones).
70 Accordingly, I found the witness to be credit worthy and, in particular, reject the submission by counsel for the defendant that the plaintiff either “exaggerated” or consciously inflated the number of tablets that he was taking for pain in order to progress his Serious Injury Application.
71 For the sake of avoiding any doubt, I do find that the plaintiff has suffered an impairment of his right arm, and such impairment, based on the evidence, is “permanent” within the meaning of the legislation. In my view, the critical issue is whether any permanent impairment suffered by the plaintiff in his right arm is “serious” within the meaning of the narrative test – that is, as counsel for the defendant succinctly put it – a “range” case.
72 The following matters must be borne in mind:
(a)As stated by the Court of Appeal (consisting of Osborn and Beach JJA) in Ellis Management Services Pty Ltd v Taylor:[49]
[49][2013] VSCA 326 at paragraphs [57]-[59]
“The test of what is a ‘serious injury’ is subjective in the sense that the effect on a bodily function of the particular applicant must be considered and the consequences of the injury must be serious to that applicant.[50]
[50]Reference was made to Humphries & Anor v Poljak [1992] 2 VR 129
Nevertheless the relevant assessment must be made objectively by the Court. It is the judge’s opinion as to the seriousness of the impairment or loss which is determinative, not the opinion of the applicant or medical practitioners.[51]
[51]Reference was made to Humphries & Anor v Poljak (op cit) at page 137
.The judgment in issue is an evaluative one involving a synthesis of matters of fact and degree. Such a judgment necessarily involves a consideration of detailed facts and a weighting of cumulative factors. Different minds might reasonably reach different conclusions as to where the overall seriousness of the consequences fell within a range … .”;
(b) Also, the Court of Appeal in Ellis stated, at paragraph [52]:
“…After all, it is to be remembered that when assessing pain and suffering consequences one needs to have regard to the whole of the individual (background, abilities, skill sets and the like), not merely some worker of average or uniform characteristics.”;
(c)I also refer to the Court of Appeal decision of Haden Engineering Pty Ltd v McKinnon,[52] wherein Maxwell P set out various principles in evaluating the “pain and suffering consequences”. I take account of all those considerations. In particular, I refer to paragraphs [14]-[15] under the heading “The disabling effect of pain”, wherein Maxwell P states:
[52](2010) 31 VR 1
“As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this Court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.’[53]
[53]See Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124
As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account.[54] What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her].[55]’”;
[54]Reference was made to Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph [47]
[55]See Ellis Management Services v Taylor (op cit) at paragraph [35]
(d)I also again refer to Ellis, wherein the Court of Appeal expanded on the earlier comments in Haden when it stated:
“As has repeatedly been held, the inability of a worker to engage in employment which he or she enjoyed is a matter that may properly be taken into account in assessing pain and suffering and loss of enjoyment of life. Similarly, frustration at being unable to engage in former activities (work or leisure) may be a matter properly to be taken into account in assessing pain and suffering consequences.”[56]
[56](Op cit) at paragraph [35].
This concept was enlarged upon by the Court of Appeal at paragraphs [43]-[44], when it was stated:
“Whether it be the loss of pleasure in doing something one used to be able to do or frustration in being unable to do something one used to be able to do, and whether or not the relevant activity is work related, such loss of pleasure or feeling of frustration falls to be considered when assessing the pain and suffering consequences of a particular injury. Further, the loss of pleasure or feeling of frustration may be all the more serious if it is suffered in circumstances where the range of activities that a person may or may not be able to engage in but for his or her injury is more limited than it might be for a person with a different skill set.
While the appellant’s argument with respect to ground 1 was initially expressed in broad terms (namely that loss of earning capacity consequences could not be relied upon by a worker seeking leave to commence proceedings for the recovery of damages for pain and suffering only), in argument the appellant accepted that loss of the ability to engage in particular forms of employment may be relevant to the issue of pain and suffering consequences in the following ways:
(a) .First, pain may in fact be experienced at work or while performing particular types of work.
(b) Secondly, the inability to perform certain work may be indicative of what injury has in fact been sustained by the worker.
(c)Thirdly, a worker might suffer a loss of enjoyment of life in being unable to perform work which he or she used to enjoy. Under this heading there may also be pain and suffering consequences in respect of any frustration of a worker at being unable to perform activity that he or she used to be able to perform.”
73 After a consideration of all of the evidence, and bearing in mind the legal principles to which I have referred, I make the following findings of fact:
(a)the plaintiff is a twenty-nine-year-old married man who is right-arm dominant;
(b)on coming to Australia in 2009, he completed a two-year Advanced Diploma in Commercial Cookery at Swinburne University after which he worked for approximately one year, on a casual basis, for the “wholesale bakery” Schwob’s Swiss Bakery in Murrumbeena as an assistant baker;
(c)In August 2011, he commenced employment with the defendant, which he also described as a “wholesale bakery” as a part-time baker, working twenty hours a week, mainly making sourdough bread. I accept that the number of hours he was working reflected his visa requirements rather than a conscious choice to only work part time;
(d)I also accept his description as to the difference between “wholesale” bakeries and “retail” bakeries. Whereas the latter are typically shop-sized bakeries making and selling the various goods at the retail outlet, whereas the “wholesale” bakeries are large factories mass-producing a variety of baked items to be on-sold to cafes and various other outlets. These bakeries are much bigger, having larger ovens and larger trays, and the work is generally heavier because of the loads that have to be lifted. Furthermore, as demonstrated with his employment with the defendant, shift work was undertaken in commercial bakeries;
(e)on 21 July 2012, the plaintiff suffered a right arm injury during the course of his employment with the defendant, which resulted in organic impairment in the right arm, which is permanent – that is to say “likely to last for the foreseeable future”;
(f)the compensable injury consisted of a fractured right humerus and the plaintiff underwent surgery on 1 August 2012, consisting of open reduction and internal fixation, whereby a metal plate and screws were inserted into his right arm;
(g)the plaintiff underwent rehabilitation and physiotherapy of the right arm after surgery and this continued until early 2013, when x-rays would suggest there had been some union of the fracture in the arm. At that time, although organically fit to perform some bakery duties, the plaintiff suffered a mental reaction to his injury and could not return to the employment of the defendant. He subsequently underwent treatment here, under the care of a psychiatrist, and later in India, under the care of a yogi, both of whom improved the mental state of the plaintiff;
(h)I do find that the plaintiff has not consulted a doctor, been prescribed medication, had physiotherapy, or undergone any x-rays or investigations of his right arm or shoulder since September 2013. I also accept the evidence of the plaintiff that he does not see any doctors because they have all told him that there was “nothing further they could do for me”;
(i)although I accept that he was organically fit to return to work in early 2013 (leaving aside any issue of his mental state), I accept that he was unable to do all the heavy work he was required to do at a commercial bakery. His present employment is for forty hours at a small retail bakery, where the ovens and trays are much smaller;
(j)in particular, I accept, consistent with all the recent medical examinations, the plaintiff has limitation of movement of his right arm above shoulder height. I accept that such restriction impacts on his working, domestic and recreational activities in that he cannot reach overhead with both arms to remove things from a height, he generally cannot use his right arm in an outstretched manner above his shoulder, he would be unable to bowl a cricket ball with his right arm and unable to use his right arm to play badminton, given the action required to strike the shuttlecock;
(k)I also accept that the plaintiff has a constant feeling of some heaviness in the area where the fracture occurred and, in particular, such feeling of heaviness increases with the use of his right arm. Furthermore, I also accept that his arm becomes painful in the injured area with too much use of the arm (which I accept occurs, usually on a daily basis) and, furthermore, he does not feel as though he has the same right arm strength compared to prior to the injury. I also accept that such condition of his right arm impacts on his ability to perform all the domestic activities that he was doing prior to the injury – although I accept, clearly enough, he is capable of doing some of those activities;
(l)I also accept that with any driving for more than an hour or so, the feeling in the plaintiff’s right arm becomes more uncomfortable and sometimes requires him to only drive with his left arm;
(m)I also accept that the plaintiff cannot lift any heavy weights with his right arm as compared to prior to the injury, and as noted earlier, this impacts on the nature and extent of the work he can perform – that is, he is limited to performing work involving the smaller trays and smaller ovens;
(n)I accept that the plaintiff’s right arm symptoms are worse in cooler weather and, in particular, it is painful if he rolls onto it when sleeping, causing him to wake on occasion, and sometimes to take medication at that time;
(o)in particular, I do accept that he takes about eight to ten Panadol or Nurofen a week now, to help control the pain and sometimes apply a hot water bottle to his right arm to help ease the ache or pain;
(p)I accept, in general terms, that the plaintiff had, and continues to have, a love of cricket, engendered, no doubt, in his country of birth, but also enjoyed, on a social basis with co-workers of the defendant, up to his injury. Although accepting such cricket was on a casual basis, I do accept that it was a source of enjoyment for him, and absent this injury I see no reason why he would not have continued to play. As I have already noted, I accept that the plaintiff’s injury would prevent him from being a bowler, and most probably also a batsman;
(q)in a similar vein, I accept that the plaintiff does have a love of the game of badminton to the extent he returned to India once a year to play in high-level championships. However, it is to be noted that prior to this injury, he had not actually played badminton in Australia due to financial constraints. Although I accept that badminton has been a reasonably significant part of his life leading up to his injury, it does not appear to have the same force as his love of cricket. However, I do accept that, absent the injury, he probably would have come to playing badminton sooner or later in Australia, even on a non-competitive basis. I accept that one of the consequences of his injury to his right arm is that he is now prevented from playing badminton, bearing in mind the right arm would have to be extended over his head on occasion, and as he described, the motion of the arm in hitting the shuttlecock would be beyond him.
74 I take into account the plaintiff’s age and the various losses that he has suffered which, obviously enough, will extend for many years into the future. I also find that he is physically incapable of performing baking in a commercial setting because of the restrictions in his right arm and, in particular, the inability to engage in carrying far bigger and heavier trays and placing them into bigger ovens.
75 A distinction has to be drawn between mere pecuniary disadvantage because of inability to do that work and consequences which can be clearly identified as pain and suffering consequences. In this respect, I do give some weight to his inability to perform as a baker in a commercial setting, as clearly this was his preferred work, as identified by his first two employments after graduating, and I consider there is an element of loss of enjoyment of life in not being able to continue such work as he performed prior to the injury.[57]
[57]See, generally, Ellis Management Services Pty Ltd v Taylor (op cit).
76 In making the evaluative judgement involving a synthesis of matters of fact and degree, I acknowledge that the circumstances of this matter are finely balanced. In particular, I am not satisfied that any one particular consequence satisfies the narrative test. However, after a consideration of all the evidence, I am satisfied that, in the circumstances of this matter and bearing in mind the cumulation of the consequences of the injury to the plaintiff when judged by comparison with other cases in the range of possible impairments, it may be fairly described as “being more than significant or marked” and as being “at least very considerable”.
77 Accordingly, I grant the application for the plaintiff to bring common law proceedings for “pain and suffering damages” in respect of his right arm injury suffered by him during the course of his employment with the defendant on 21 July 2012.
78 I will hear the parties on the question of costs.
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Annexure “A”
The plaintiff tendered the following material: –
Exhibit 1
·Affidavits of the plaintiff sworn on 30 August 2017, 10 May 2018 and 24 August 2018.
(All such material found at pages 12-36 of the Plaintiff’s Court Book (“PCB”)).
Exhibit 2
· Medical reports from:
§ the treating general practitioner, Dr Jim Demirtzoglou, dated 31 May 2013, 29 August 2013 and 13 December 2015.
§ Monash Health dated 13 May 2016.
§ Ms Yogi Anoop, the founding director of the Chaitanya Foundation, dated 17 September 2016.
(All such reports found at pages 37-47 PCB).
Exhibit 3
· Medico-legal report from the orthopaedic surgeon, Mr John O’Brien, dated 18 April 2018.
(Such report found at pages 48-51 PCB).
Exhibit 4
·X-ray reports of the right humerus, dated 22 July 2012, 31 July 2012, 1 August 2012, 2 August 2012, 13 September 2012, 31 October 2012 and 2 January 2013.
(All such reports found at pages 51A-51D PCB).
Exhibit 5
·Medical Panel Reasons for Opinion dated 18 April 2017.
(Such Reasons found at pages 52-59 PCB).
2 The defendant seeks to tender the following material:
Exhibit “A”
· The reports of the occupational physician, Dr David Barton, dated 13 August 2013 and 9 September 2013.
· The report of the psychiatrist, Dr R Prytula, dated 11 January 2017.
·The report of the orthopaedic surgeon, Associate Professor Goldwasser, dated 11 January 2017.
·The report of the orthopaedic surgeon, Mr Ian Jones, dated 27 November 2017.
(All such reports found at pages 1-37 Defendant’s Court Book (“DCB”).
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