Skrzelinski v J and M Magri Transport Pty Ltd

[2019] VCC 117

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-18-01745

HENRYK SKRZELINSKI	Plaintiff
v
J & M MAGRI TRANSPORT PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2018
DATE OF JUDGMENT:	24 January 2019
CASE MAY BE CITED AS:	Skrzelinski v J & M Magri Transport Pty Ltd
MEDIUM NEUTRAL CITATION:	[2019] VCC 117

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury – non-dominant left arm injury (in particular the left elbow) – paragraph (a) of the definition of “serious injury” – leave sought to bring a common law claim for “pain and suffering and pecuniary loss” damages – the extent of any consequences suffered by the plaintiff as a result of the left arm injury – capacity for work – satisfaction of the narrative test.

Legislation Cited:     Accident Compensation Act 1985, s134AB

Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Hunter v Transport Accident Commission [2005] VSCA 1.

Judgment:                 Judgment for the plaintiff.  The plaintiff is granted leave to bring common law proceedings for both “pain and suffering damages” and “pecuniary loss damages” in respect of a left-arm injury suffered during the course of his employment from approximately late 2011 to August 2012.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr I R Fehring with Ms F Crock	Ryan Carlisle Thomas
For the Defendant	Mr D McWilliams	Wisewould Mahony

HIS HONOUR:

Introduction

1 By way of Originating Motion, Mr Henry Skrzelinski (“the plaintiff”), seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) to bring common law proceedings for a left-arm injury which occurred during the course of his employment with J & M Magri Transport Pty Ltd (“the defendant”) from approximately late 2011 to when he ceased employment in about mid-August 2012 (“the injury”).

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

3       The plaintiff was the only witness to give evidence and be cross-examined.  Both parties tendered a variety of documents.[1]

[1]Refer to exhibit “A”.  See exhibit list attached to this document

Relevant legal principles

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

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

5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act. That paragraph reads:

“serious injury means—

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

6       The part of the body said to be impaired for the purposes of paragraph (a) is the left arm of the plaintiff.

7       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 left-arm injury in relation to “pain and suffering” and “pecuniary loss” must be “serious”. That is:

“… when judged by comparison with other cases in the range of possible impairments … as the case may be … [can be], fairly described as being more than significant or marked, and as being at least very considerable.”[5]

This is sometimes referred to as the “narrative test”.

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

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

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

8 Section 134AB(38)(b) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event that a worker satisfies sub-paragraph (i) but not sub-paragraph (ii) of s134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for recovery of “pain and suffering damages” only. A worker who satisfies the loss of earning capacity requirements of s134AB is entitled as a “matter of statutory construction” to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages”.[6]

[6]See Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraphs [60]-[64]

9       In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden[7] to establish:

(a)That as at the date of hearing, he has a loss of earning capacity of 40 per cent or more, measured (subject to certain relevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act.[8]  In the circumstances of this matter, the parties agree that the so-called “without injury” earnings of the plaintiff was $1,000 per week or alternatively $52,000 per annum;

(b) That after the date of hearing, he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[9]

[7]See s134AB(19)(b) and s134AB(38)(e) of the Act

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

[9]See s134AB(38)(e)(ii) of the Act

10      In determining the application, the Court:

(a)Must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury”.  These can only be taken or counted for the purposes of a disturbance or disorder within the meaning of paragraph (c) of the definition of “serious injury”;[10]

(b)Must make the assessment of “serious injury” at the time the application is heard;[11]

(c)Must give reasons that disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application.[12]

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

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

[12]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23]-[36]

The issues

11      At the commencement of the proceeding, counsel for the defendant informed the Court that an initial issue was whether the plaintiff suffered a compensable left-arm injury arising out of or in the course of his employment with the defendant.  However, in his final address, counsel for the defendant informed the Court that there was no issue that when the plaintiff ceased work with the defendant he was suffering epicondylitis in his left elbow[13] and when queried as to whether that “concession extend[ed] to a work-related condition or not”, counsel conceded that it did.[14]

[13]See Transcript (“T”) 98, Lines (“L”) 9-11

[14]T102, L11-12

12      However, counsel for the defendant ultimately submitted that when one comes to assess the consequences from such “compensable injury”, any symptoms have “abated”, certainly to the extent of satisfying the so-called “narrative test”.  Furthermore, based on the evidence of the occupational physician, Dr Philip Mutton, the defendant would submit that, to the extent that the plaintiff suffered any symptoms in his left-elbow region, can be explained by osteoarthritic changes in the elbow.

13      Ultimately, I understood the position of the defendant to be that although it was now accepted that the plaintiff had suffered a compensable left-arm injury, the symptoms of such condition were either no longer existing or, if existing, were so minor and did not satisfy the narrative test or, alternatively, any ongoing symptoms were as a result of the purported osteoarthritic condition in the left elbow, as diagnosed by the occupational physician, Dr Mutton.

The evidence of the Plaintiff

14      The plaintiff gave evidence that save for an issue about his correct address, that he had read his affidavits sworn on 5 December 2017 and 27 November 2018[15] on the morning of 7 December 2018 and the contents were “true and correct”.[16] 

[15]See exhibit 1 at pages 4-12 Plaintiff’s Court Book (“PCB”)

[16]Transcript (“T”) 16, Lines (“L”) 16-20

15      In relation to the issue of his address, it is to be noted that in his last affidavit sworn on 27 November 2018, his address is given as “61 Notre Dame Drive, Sunbury”, which is his permanent address, but for the last “few months” he and his wife have been residing in a caravan at 520 Plumpton Road, Diggers Rest.  The plaintiff gave evidence that he and his wife are “babysitting and watching the property for a friend”, who is currently on holidays.

16      By way of his first affidavit, the plaintiff gave the following salient evidence:

·He is a sixty-two-year-old (born May 1956) married man with adult children.

·On leaving school, he initially trained as a butcher and later commenced driving heavy trucks, and has done that type of work for most of his adult life.  He commenced employment with the defendant in approximately 2007 as a truck driver – although he had previously worked for the defendant on other occasions.  The defendant has a depot in Sunshine and provides trucking services to move containers, predominantly in the greater metropolitan area.

·The plaintiff described his duties to involve driving heavy transport wherever it was required and to load and unload containers at their destinations.  He estimated he would be driving ten to twelve hours most days in city traffic.

·When given a certain truck in late 2011, he noticed a problem “almost immediately” with the gear change on the truck, which was stiff and difficult to use.

·Over the period from February or March 2012, he commenced to experience pain in his left elbow and arm when using the gearshift, which increasingly got worse over the course of his employment.

·He applied some CRC to the gearshift mechanism and later part of the mechanism was replaced.

·Over the month leading up to August 2012 he continued to work, with his left arm becoming more painful, causing him to attend at the Eastbrooke Family Clinic Lincolnville.

·In mid-August 2012, he could not work because his arm “was just too painful”, so he stopped working and again consulted his general practitioner.  He has not been able to work since that time because of problems in his left arm.

·His general practitioner referred him to the rheumatologist, Dr Christine Le, and he underwent an ultrasound, x-ray and MRI scan of the left elbow.  Furthermore, he was provided with medications and had injections into the elbow, but they did not help.  He was also referred to the orthopaedic surgeon, Mr Richard Dallalana, for assessment.

·At the swearing of his first affidavit, he was taking Tramadol, 100 milligrams daily, Nurofen, Voltaren and Panadeine daily, all of which were prescribed by his doctors at the Eastbrooke Family Clinic Lincolnville.  He continues to attend that clinic, but at the time of his first affidavit he was away from Melbourne on a caravan trip.

·He noted he also has had a cardiac problem for many years, which required surgery approximately twenty-two years ago and he is reviewed by a cardiologist every six months or so.  He is also prescribed medication for his cardiac condition, which includes Cartia, Ramipril and Metoprolol, and if he takes this medication his cardiac condition is under control and does not cause any problems.

·In his first affidavit, the plaintiff described the following limitations:

– his left elbow is painful all the time and wakes him at night, and he is lucky to get one or two hours sleep before again waking

– lifting is restricted in the left arm and he could not lift more than 3 or 4 kilograms, certainly not on a regular basis

– he could not drive a truck full time, and finds that even driving the car with a caravan a strain, and has to take regular breaks.  He now cannot drive for more than an hour, otherwise he gets an increase of pain in the left elbow

– prior to the “injury” he used to go fishing very regularly, and on long weekends or holidays he would go camping and fishing.  Although he is able to do some camping, he finds he has to be very careful with what he does and cannot go to any places where it might be difficult to get in and out of

– he used to do four-wheel driving in central Victoria and forest areas, like Wombat forest, and would do a day’s driving, but is unable to do this now because of the force and jarring in driving off-road

– gathering firewood and using power tools is now extremely difficult and he had a shed full of equipment and has given away most of the heavier items and the power tools because he cannot use them anymore

– he cannot service cars or rebuild a car, which he has done in the past, because there is too much pressure and force involved in doing that and his arm would not be able to cope

– he had a vegetable garden in the past and did all the general house maintenance (whatever was required) and now he is quite restricted and can only do the “simplest and lightest of activities”.  He did regard himself as a handyman and a very competent fix-it person, and is now limited because of pain in his left arm

– he has always been a keen cook and has made smallgoods in the past.  Two or three times a year he would have bought the necessary ingredients to make 25 to 30 kilograms of smallgoods, but this cannot be done anymore because it involves a lot of use of his left arm.  He also cannot make pastry, which he has done in the past, because of the use of his left arm in that type of activity would be too painful

– even personal hygiene is difficult on occasions, as is doing up buttons, or even carving a roast dinner would be difficult

– he has a number of grandchildren between the ages of four and thirteen, and cannot play with them and participate in their activities as much as he would like because he is expected to use his arms and has to be careful about everything he does

– he used to go bicycling, probably 5 kilometres a time on weekends, and has given that up because it puts too much pressure on the left arm.

·The plaintiff asserted that since ceasing work he has not been offered any retraining or rehabilitation, and he has only ever been a truck driver and has no computer or office skills.

17      By way of his second affidavit, the plaintiff gave the following salient evidence. 

·Last year he and his wife took a holiday and went to Yarrawonga, where they were situated for about four months, and came back to Melbourne in February 2018.  Although he did the driving to and from Yarrawonga, it took him two to three days each way to complete the trip because his arm became very painful.  He noted he can usually drive for about twenty to thirty minutes before the pain increases, but had to push himself when driving to Yarrawonga.

·In Easter 2018, he and his wife did another driving trip to Jindabyne, which took three to four days to get there, and coming back they stayed at Jindabyne for three weeks at caravan parks.  Again, he had to take extra medication to make the driving possible.

·In August 2018, he and his wife went to Marysville in Victoria for a long weekend and stayed four days.  He drove to Marysville, but when driving he had to make at least two stops and take a lunchbreak, in order to complete the driving.

·His elbow is painful all the time and if he does too much the pain increases.  Such pain affects his ability to sleep, he has trouble getting to sleep and then wakes up a lot because of pain in the elbow.  He considers the pain in the elbow is basically “the same that it has been for many years”, although it does vary from day to day in terms of the pain.

·He continues to see his general practitioner, Dr Dennis, who has recently referred him to have tests undertaken of his left wrist in January 2019.  He noted that he has difficulties in his left and right wrist, which has come on over recent years and is painful, but nowhere near as painful as the left elbow.

·He continues to take medication for his cardiac condition and for an Asthma condition.

·He continues to take Ibuprofen, Maxigesic and Panamax in combination daily for the pain in his left elbow, and also Escitalopram, because at times he gets depressed about the restrictions and the ongoing pain and inability to sleep properly.  He no longer takes Panadol ,Voltaren or Panadeine Forte.

·He left school at the end of Year 10 and has “very poor spelling and reading skills”.  He noted he can read a newspaper if he goes slowly, but has difficulty understanding what is being said.  His spelling is very poor and he often needs assistance dealing with documents and has to call on his wife for that assistance.

·The plaintiff referred to the Recovre Suitable Employment Report dated 8 November 2018.[17]  In relation to that report, the plaintiff deposed:

– he does not believe he has the capacity to do the jobs suggested in that report, given his left-arm restrictions

– he could not drive a truck, such as a rubbish truck, all day, even if he did not have to get out and move the bins and had power steering or it was an automatic; the driving, itself, would be too painful for his left arm.  If the truck did require him to get in and out regularly, that would also be a problem

– he does not think he would be able to use a computer system which is shown in the report, because he does not have the skills or use computers, nor the reading skills which would be necessary

– although understanding what the job of an order picker involves, he believes he would not be able to do that because it would be stressful to his left elbow and he would not be able to use the computer device which directs you where to go and what to pick up.  He noted that even holding the keyboard on the device shown in the report would be too much for him because he would have to hold it in his left hand and use his right hand to use the keyboard

– lifting and manoeuvring boxes around quite a bit, even if they were light, would cause him too much pain.

All in all, prolonged use of his left arm would cause increased pain and he does not believe he could do the sort of work as suggested in the report.

[17]See exhibit “C”

18      I also briefly refer to the affidavit of the wife of the plaintiff – Mrs Anne Skrzelinski – sworn on 27 February 2018.[18]  She described how she has been married to the plaintiff for forty-two years and that he has been a “hardworking man and a very active person”.  She noted that prior to her husband suffering his “injury” causing him to give up work, they would go on camping holidays for long weekends and long holidays when her husband enjoyed fishing and four-wheel driving.

[18]See exhibit 1 at page 13, PCB

19      Furthermore, she noted that her husband had a garage full of equipment and was always working out there, doing something, and enjoyed working on cars and home maintenance.  She noted that since his injury he has not been able to do these things or activities.  Furthermore, she noted that her husband was a good cook and enjoyed making smallgoods over the years.  Again, this has been affected because he is unable to use his left arm because of the pain.

20      She described how they have gone on caravan holidays involving driving on several occasions.  During such trips, she noted that her husband takes extra medication to cope with the pain and has a variety of breaks when driving.

21      In particular, the plaintiff’s wife deposed that her husband does not “read very well and his spelling is not good” and that he needs assistance when filling in forms and the like.  Although he uses a computer to go onto Facebook, he only uses his right hand with a couple of fingers, because he cannot type properly.  She also has observed that, on occasion, the plaintiff will send an email or text message to one of their daughters and his spelling is not very good at all.

Medical treatment of the Plaintiff for the left-elbow injury

22      The plaintiff has been treated by doctors at the Eastbrooke Family Clinic Lincolnville (East Keilor) and, in particular, initially by Dr Davorka Hemetek, and later to the present time, Dr Lyndall Dennis.

23      The plaintiff attended Dr Hemetek on 16 August 2012, complaining of a sore left elbow for a couple of months.  Dr Hemetek recorded that the plaintiff stated there was a problem with changing gears in his truck due to very stiff cables.  At the time of that initial consultation he was taking Voltaren.

24      The examination revealed the plaintiff to be very tender around the medial epicondyle and not tender around the lateral epicondyle.  There was no obvious swelling, deformity or redness, and there was full movement of the left elbow, however, pain in the flexor compartment of the forearm when stretching those muscles.  The plaintiff was referred for an x-ray and an ultrasound of the left elbow, given a medical certificate and prescribed further Voltaren.  It was also suggested that he use ice after using the elbow and wear a compression bandage.[19]  Ultrasound of the left elbow undertaken on 20 August 2012, was reported as showing:

[19]See exhibit “D” – general practitioner’s medical records, and in particular the entry for 10 September 2012.

“Mild to moderate medial epicondylitis, with a probable partial tear of the deeper fibres.”[20]

Also on that day, the plaintiff underwent a plain x-ray of his left elbow, which was reported as showing:

“…

Mild osteoarthritic changes at the elbow joint.

A well defined (sic) ossicle adjoining the lateral epicondyle, which could be a sequel of chronic lateral epicondylitis.”[21]

[20]See exhibit 2 at page 15, PCB

[21]See exhibit 2 at page 15, PCB

25      Dr Hemetek referred the plaintiff to the rheumatologist, Dr Christine Le, who initially examined the plaintiff on 20 September 2012, but also on 1 November 2012 and finally on 29 November 2012.

26      At the initial consultation, Dr Le obtained a history of the plaintiff having increasing pain at the left elbow for about five or six months prior to that consultation, with the severity increasing to such an extent that he had to stop work on 16 August 2012. 

27      In particular, he described how he was a truck driver and had been driving a truck with gear cables which were very stiff, which he felt had contributed to the development of his left-elbow pain.  Also, over the years he had to climb up and down the truck to open and close container doors in a repetitive manner, which he also felt aggravated his left-elbow pain.  Dr Le noted that the history given to her by the general practitioner revealed that the plaintiff did have a left tennis elbow problem in 1994, but when queried about that condition, the plaintiff could not recall any details.

28      Furthermore, Dr Le noted the plaintiff had a past medical history consisting of some injections to the right shoulder, followed by surgery in 2008, that he had also suffered from ischaemic heart disease, requiring cardiac bypass surgery in 1994, hypertension and hypercholesterolemia. 

29      An MRI scan of the left elbow arranged by Dr Le on 11 October 2012, concluded that there was:

“…

Evidence of both common extensor and common flexor tendinopathy (medial and lateral epicondylitis) associated partial tear common extensor origin.”[22]

[22]See exhibit 2 at page 18 PCB

30      When initially seen, Dr Le confirmed the presence of a left tennis elbow, and after the MRI scan, arranged for the plaintiff to undergo an ultrasound-guided left elbow steroid injection into both the “left golfer’s elbow and left tennis elbow”.

31      When seen on the last occasion, on 29 November 2012, Dr Le reported that the two steroid injections did help, giving the plaintiff some relief, but he was unable to return to any physical work.  At that time, Dr Le advised him to continue with a conservative approach to minimise aggravating factors, including restricting his work, with a lifting restriction of 2 kilograms and reduced hours. 

32      Dr Le was of the opinion that the employment of the plaintiff with the defendant did contribute to the development of his injuries because of the repetitive and physical nature of the work and that he suffered from a left tennis elbow and golfer’s elbow.  When last seen, he had no capacity to return to his pre-injury employment and that he had a disability, being the experience of constant chronic and severe pain at the left elbow. 

33      As a result of Dr Hemetek taking maternity leave, the treatment of the plaintiff at the Eastbrooke Family Clinic Lincolnville changed to Dr Lyndall Dennis, who continues to be the treating general practitioner.  Dr Dennis referred the plaintiff to the surgeon, Mr Richard Dallalana, to investigate whether there should be any surgical intervention.

34      In a report dated 21 November 2013,[23] Mr Dallalana noted that there were no significant changes of a structural nature in the elbow, and accordingly there was no need for surgical intervention.  However, he also noted there are changes in both the medial and lateral common tendon origins, and in particular the plaintiff was tender medially.

[23]See exhibit 3 at page 30 PCB

35      Dr Dennis arranged for the plaintiff to undergo a further MRI scan of his left elbow on 21 June 2018.  The clinical notes with the scan noted that the MRI scan in 2012 showed common extensor and flexor tendinopathy associated with partial tears of the extensor origin.  It was noted that the “patient” remained symptomatic and unable to work.

36      The conclusion of that MRI scan was:

“…

Mid to deep aspect insertional common extensor origin tendinopathy and partial thickness tearing.”[24]

[24]See exhibit 2 at page 20 PCB

37      In her last report, dated 6 August 2018, Dr Dennis asserted, in part based on the MRI scan undertaken in 2018, that the diagnosis was a deep aspect insertional common extensor tendinopathy and partial thickness tearing.  She did note that the common flexor tendinopathy reported in the MRI scan in 2012 was no longer present.  In particular, Dr Dennis opined that:

(a)the plaintiff has no capacity to perform his pre-injury duties as a truck driver as there had been no improvement in his symptoms over the years;

(b)in relation to his capacity for suitable employment and/or retraining, she noted that any other job offer or training would have to take into account that he has very limited function or use of his left arm due to the elbow tendon injury.  Ultimately, she reached the view that his present incapacity is permanent given there has been no improvement since 2012;

(c)Dr Dennis also considered that his left-elbow injury has impacted on his social, domestic and recreational activities, and in particular referred to his hobbies of cooking and gardening, and his lack of being able to perform physical work as he used to, such as chopping wood;

(d)Dr Dennis noted that the plaintiff has not responded to a number of treatment modalities, including physiotherapy, strapping, steroid injections and anti-inflammatory and pain-relief medications.  She also noted that the orthopaedic surgeon, Mr Dallalana, felt that he did not require surgery.  She considered his prognosis for future improvement to be poor.[25]

[25]See, generally, exhibit 2 at pages 39-40 PCB

Medico-legal material relied on by the Plaintiff

38      The plaintiff relies on medico-legal reports from the orthopaedic surgeon, Mr Roger Westh, who consulted with the plaintiff, initially on 3 September 2013 and later on 5 August 2014.

39      In his report dated 9 September 2013 (in relation to the examination on 3 September 2013),[26] Mr Westh had available the x-ray and ultrasound on the left elbow undertaken on 20 August 2012 and the MRI scan of the left elbow undertaken on 11 October 2012.

[26]See exhibit 4 at page 41 PCB

40      After obtaining a history and making an examination, Mr Westh was of the opinion that the appropriate diagnosis was one of common extensor and flexor tendonopathy/medial and lateral epicondylitis.  Furthermore, he was of the opinion that the employment by the defendant was a contributing factor to such left-elbow condition.

41      At that time, Mr Westh considered that the plaintiff had no capacity to perform his pre-injury employment, or any other work of a similar heavy nature and that given the effluxion of time since the onset of injury, he had a permanent impairment of the left-elbow condition.

42      In his later report dated 11 August 2014 (in respect to the examination of 6 August 2014),[27] Mr Westh noted that notwithstanding that the plaintiff had received appropriate conservative management, since his last review there had been no improvement in his condition and examination revealed “features of a chronic left-elbow medical and lateral epicondylitis”.

[27]See exhibit 3 at page 44 PCB

43      In particular, given the duration of his symptoms, Mr Westh was of the opinion that the injury had stabilised and that the plaintiff would continue to experience particularly activity-related pain in both the medial and lateral aspects of his left elbow.  He was also of the opinion that taking into account his incapacity, age and particularly his previous work experience, “realistically” the plaintiff had to be considered to have poor future work prospects.

44      The plaintiff also relies on the reports from the orthopaedic surgeon, Mr Thomas Kossmann, who initially examined the plaintiff in September 2013 and again in September 2014.  On both occasions, after examining the plaintiff and having available various reports from the treating doctors and the x-ray and ultrasound of the left elbow dated 20 August 2012 and the MRI scan report of the left elbow dated 11 October 2012, Mr Kossmann was of the opinion that the plaintiff suffered lateral and medial epicondylitis in the left elbow and also had clinical signs of Sulcus Ulnaris Syndrome, left-sided.  Furthermore, Mr Kossmann was of the opinion that the plaintiff’s employment with the defendant was a “significant contributing factor” to his left-elbow injury.

45      Mr Kossmann re-examined the plaintiff in or about August 2018.  In his report dated 2 August 2018,[28] Mr Kossmann again confirmed the diagnosis of lateral and medial epicondylitis of the left elbow – what he referred to as both tennis and golfer’s elbow – together with clinical signs of Sulcus Ulnaris Syndrome on the left side. 

[28]See exhibit 4 at pages 57-65 PCB

46      At the time of the last examination, Dr Kossmann had available most of the reports from the treating doctors and, seemingly, most of the reports of those who had examined the plaintiff on behalf of the defendant.  Furthermore, Mr Kossmann had available the MRI scan of the left elbow on 21 June 2018. 

47      In particular, Mr Kossmann was of the opinion that the plaintiff had no capacity to return to his employment as a truck driver and furthermore, had no capacity to perform suitable employment, and that such will continue into the foreseeable future. 

48      Because of the finding of the Sulcus Ulnaris Syndrome on the left side, Mr Kossmann recommended that the plaintiff be referred to a neurologist to undergo an EMG and nerve conduction study.  Seemingly, Dr Dennis referred the plaintiff to Dr Simon Li, a neurologist, who performed neurological testing.[29]  Dr Li concluded that the testing revealed mild left ulnar sensory neuropathy at the elbow, with no evidence of left ulnar motor nerve abnormality.

[29]See exhibit 2 at pages 21-22 PCB

49      The plaintiff also relies on a report from the occupational physician, Dr Robyn Horsley, who examined the plaintiff on 24 October 2018.[30]  After obtaining a history from the plaintiff and having available the various radiological studies, including the most recent MRI scan of the left elbow, dated 21 June 2018, Dr Horsley was of the opinion that the plaintiff presented with an ongoing disability related to the left elbow, which is “chronic”. 

[30]See report of same date, exhibit 4 at pages 66-73 PCB

50      Clinically, Dr Horsley was of the opinion that he presented with more medial than lateral epicondyle symptoms.  As noted by her, the MRI scan undertaken on or about 21 June 2018 shows “ongoing objective evidence of common extensor origin tendonopathy and a persistent partial thickness tear”.[31]  She was of the opinion that the events described in the clinical presentation are consistent, with radiology confirming the ongoing chronic nature of the condition.

[31]See exhibit 4 at page 72 PCB

51      In particular, Dr Horsley considered the plaintiff to be permanently unfit for his previous roles as a truck driver of a manual vehicle and would also find it difficult climbing in and out of cabin trucks on a repetitive basis.  Noting that the plaintiff is further disadvantaged as a result of literacy issues (which decrease the potential vocational options with upgrading of skills) and was granted a Disability Support Pension in 2014, she opined that realistically he has come “to the end of his working life”.  She also noted that from the domestic, recreational and leisure perspectives, the following restrictions would be prudent –

·avoidance of prolonged grip on the left side

·avoidance of forceful activities involving the left hand

·avoidance of using tools with a vibratory component

·avoidance of repetitive fine manipulative tasks on the left side

·avoidance of repetitive pushing and pulling

·avoidance of lifting items greater than 10 to 12 kilograms, except on an occasional basis using his bilateral hands

·avoidance of lifting items greater than 4 to 5 kilograms on the left side on a repetitive basis

·avoidance of repetitive elbow flexion and extension.

WorkCover claim

52      The plaintiff submitted a claim for compensation under the provisions of the Act[32] and, I was informed from the Bar table that the plaintiff had received weekly payments of compensation and the payment of medical and like expenses. Furthermore, the plaintiff submitted a claim for impairment benefits pursuant to s98C and/or s98E of the Act,[33] and ultimately it was determined that he was entitled to the sum of $16,760, representing an 8 per cent whole person impairment in relation to his left-arm condition.

[32]See exhibit 5 at pages 74-75 PCB

[33]See exhibit 5 at pages 84-85 PCB

Affidavit material relied on by the Defendant

53      The defendant relies on the affidavit of Jennifer Dianne Hills sworn on 12 April 2018.[34]  In her affidavit, Ms Hills described herself as a former truck driver employed by the defendant and described how she drove the same truck as the plaintiff and had “no trouble changing gears”.  Furthermore, she noted that although the plaintiff complained “about a lot of things with different trucks”, she did not hear him complain about the gearstick on the truck that he says gave rise to his problems.

[34]See exhibit “A” at page 1 Defendant’s Court Book (“DCB”)

54      Furthermore, she asserted that it was “common knowledge” that the plaintiff had been involved in cutting wood and selling it for years and, indeed, on one occasion she attended the plaintiff’s old house to pick up an outdoor setting and she observed neat piles of split wood in the carport along the driveway.  Such wood was sold by the plaintiff for $20 a metre.

55      Some parts of the affidavit sworn by Ms Hills ultimately had little relevance in this proceeding, given that the defendant accepted that the employment of the defendant contributed to the left-elbow epicondylitis.  However, observations about cutting wood and selling split wood has potential relevance to issues of capacity.

56      The defendant also relies on an affidavit of Jason Samuel Magri, sworn 15 April 2018.[35]  In his affidavit, Mr Magri described himself the principal of the defendant, which had been in business for about some eight or nine years.  At the time of swearing his affidavit, he noted he was involved in commercial cartage, ran a number of prime movers and employed some nine drivers.

[35]See exhibit “A” at page 3 DCB

57      He also noted that he was “acquainted” with the plaintiff, having known him for over thirty years, and considered him to be a “good friend”.  As noted by the plaintiff, Mr Magri accepted that the plaintiff had worked for him on and off over the years. 

58      Mr Magri deposed that prior to 16 August 2012, the plaintiff had “never indicated to me that he had concerns in relation to any aspect of his work as a truck driver”.[36]  Mr Magri also deposed that although the plaintiff complained of various aches and pains, there had never been a specific complaint of any work-related injury.  Furthermore, Mr Magri asserted that:

“I note on the claim form that Henry made reference to the onset of his elbow injury as dating back to March 2012, however, at no stage had he ever approached me and made mention of this to me.”[37]

[36]See exhibit “A” at page 6 DCB

[37]See exhibit “A” at page 9 DCB

59      In particular, Mr Magri deposed that movement of the gearstick in the particular truck was “quite easy and requires no more effort than it would to change gears in a standard motor car”.[38]  He also gave further evidence about the cables in the vehicle, and that such cables were not tight so as to require the application of greater physical force to change gears.  Again, in the circumstances of this proceeding, much of this material was overtaken by the concession that the plaintiff had suffered a work-related injury to his left elbow.

[38]See exhibit “A” at page 6 DCB

60      However, Mr Magri also deposed that on the afternoon of 15 August 2012, the plaintiff had come to the yard and conducted a check of a vehicle that he was to drive and found the two trailer tyres were not fully inflated.  Mr Magri deposes that the plaintiff rang the fleet controller of Queensland Rail (the client of the defendant) and was yelling and screaming over the phone, at which time Mr Magri went into the office and when he queried the plaintiff as to what had happened, the plaintiff was, according to Mr Magri, “extremely angry and aggressive at this time”[39] and the plaintiff started to abuse him, and stated “I’m not putting up with this shit; you can stick your job in your arse”.[40]

[39]See exhibit “A” at page 8 DCB

[40]See exhibit “A” at page 8 DCB

61      It was on the next day that the plaintiff attended the general practitioner and has not worked since that date.

The medico-legal reports relied on by the Defendant

62      The defendant relies on two medical reports from the consultant surgeon, Mr John Roth, who examined the plaintiff on 9 November 2012.  In his first report of the same date,[41] Mr Roth sets out the history obtained from the plaintiff and his examination findings.  Furthermore, he had available to him the ultrasound and x-ray of the left elbow performed on 20 August 2012, together with the MRI scan of the left elbow performed on 11 October 2012. 

[41]See exhibit “B” at pages 11-17 DCB

63      Mr Roth was of the opinion that the plaintiff had developed medial and lateral epicondylitis of the left elbow and, furthermore, that such condition was related to his employment with the defendant.  At that time, Mr Roth was of the opinion that the plaintiff was not fit to resume work in pre-injury duties and hours, although he considered that he did have some work capacity.

64      When Mr Roth obtained a Circumstance Report from the insurer of the defendant (which seemingly contained the statement of Mr Magri contained in his affidavit disputing that the gears were stiff), Mr Roth reported, in a letter dated 6 December 2012,[42] it was now his opinion that the worker would be fit to perform his pre-injury duties and hours if the truck in question was mechanically sound.

[42]See exhibit “B” at page 22 DCB

65      The defendant also relies on two medical reports from the orthopaedic surgeon, Mr Ian Jones, who initially examined the plaintiff on 10 September 2014 and later on 19 March 2018.  In his report dated 10 September 2014 (in respect of the first examination),[43] Mr Jones, after obtaining a history from the plaintiff and making an examination, and having available the ultrasound and plain x-ray of the plaintiff’s left elbow undertaken on 20 August 2012 and the MRI scan of the plaintiff’s left elbow dated 11 October 2012, diagnosed the plaintiff to be suffering from “clinically mild medial and lateral epicondylitis of his left elbow”.

[43]See exhibit “B” at page 23 DCB

66      Mr Jones did not believe that the plaintiff’s left-elbow condition was work related, although he did seemingly accept that some of the work activities described by the plaintiff would have the capacity to “exacerbate his left elbow complaint but I do not believe they are the cause of his elbow condition”.[44]

[44]See exhibit “B” at page 28 DCB

67      At that time, Mr Jones considered the plaintiff could return to his pre-injury duties as a truck driver, although he did consider that undoing the locks on containers, using bolt cutters or engaging in other activities which require heavy gripping and twisting using his left hand “could exacerbate his elbow symptoms”.  In any event, he considered that the plaintiff would be capable of suitable employment if duties involving heavy gripping and gripping and twisting using his left hand were excluded.

68      In his report dated 19 March 2018[45] (in relation to his second examination), Mr Jones notes that after further examination the complaints made by the plaintiff were of diffuse pain over the inner and outer aspects of the elbow with apparently no localised tenderness either of the medial or lateral epicondyles to support a diagnosis of lateral epicondylitis. 

[45]See exhibit “B” at page 30 DCB

69      Mr Jones did note that the prognosis of the plaintiff’s left elbow was uncertain due to the lack of up-to-date investigations.  It is to be noted that at the time of his examination, the plaintiff had not undergone the second MRI examination of the left elbow undertaken on 21 June 2018.

70      Mr Jones considered that the plaintiff presented with disproportionate symptoms of pain and loss of movement in his left elbow and there appeared to be “marked functional symptoms” in the examination findings.

71      The defendant also relies on a report from Professor Geoffrey Littlejohn, who examined the plaintiff on 12 August 2015.  In his report dated 13 August 2015,[46] Professor Littlejohn obtained a history from the plaintiff, including the onset of the “problem” and had available to him the ultrasound of the left elbow and x-ray of the left elbow undertaken on 20 August 2012 and the MRI scan of the left elbow performed on 11 October 2012. 

[46]See exhibit “B” at page 35-41 DCB

72      After a clinical examination, Professor Littlejohn considered that the plaintiff had “clinical features consistent with left lateral epicondylitis” and that there were “some features consistent with medial epicondylitis”, which he considered to be a continuation from his work injury.  Professor Littlejohn accepted that such medical condition arose out of and in the course of his employment with the defendant.

73      Professor Littlejohn did anticipate there would be some improvement in his symptoms over time, but at the time of examination such symptoms were stable.

74      The plaintiff also relies on medical reports from the consultant occupational physician, Dr Philip Mutton, who examined the plaintiff on 22 March 2018.  At the time of his examination of the plaintiff, he had available:

(a)the ultrasound of the left elbow on 20 August, the MRI scan of the left elbow on 11 October 2012 and the various ultrasound-guided elbow injections;

(b)the first report of Mr Jones, dated 11 September 2014 and the various reports of the treating rheumatologist, Dr Le and a number of reports from the treating general practitioner, Dr Dennis.[47]

[47]See the various medical records from the Eastbrooke Family Clinic Lincolnville

75      Dr Mutton obtained a history from the plaintiff and made an examination.  Ultimately, he was of the view that the “presentation” was not one of medial or lateral epicondylitis, but rather one of “general elbow pain with the main pain deep in the elbow antero-medially”[48]   He considered such a diagnosis to be consistent with the degenerative changes noted on the x-ray undertaken on 24 August 2012.

[48]See exhibit “B” at page 49 DCB

76      Dr Mutton stated, in part:

“He complains of pain in the left elbow and predominantly pain with activity.  The pain is deep within the elbow.  It is likely to be due to osteoarthritis of the elbow.  There is little confirmation of ongoing lateral epicondylitis or medial epicondylitis.  Nonetheless, he requires restrictions in terms of repetitive movement of the elbow and also repetitive movement of the wrist … .”[49]

[49]See report of Dr Mutton, exhibit “B” at page 50 DCB

77      Dr Mutton considered that, given his diagnosis, the plaintiff will be restricted in terms of utilising the non-dominant left upper limb for repetitive forceful purposes.  He considered the plaintiff was fit to perform some light work such as light container filling, light process work, light packing work, crossing supervision, monitoring in a security room, customer service, reception, call centre work and “similar”.

78      Dr Mutton notes that the plaintiff has no expertise or training in these areas and would require training as he has no transferable skills.

79      In a subsequent report dated 15 November 2018,[50] Dr Mutton was asked to give a supplementary report based on a Suitable Employment Report from Recovre dated 8 November 2018.[51]

[50]See exhibit “B” at pages 51-52 DCB

[51]Such Suitable Employment Report from Recovre was tendered and marked as exhibit “C”

80      Such Suitable Employment Report identified three “suitable” employment situations, there being knowledge of three particular work sites.  The jobs consisted of:

(a)      working as a recycling truck driver with a rubbish-collection service;

(b)      the second job was as an order picker in a distribution warehouse;

(c)       the third job was again an order picker in a different area.

81      When Recovre prepared the report, the only documentation available to them was the report of Dr Mutton (who did not diagnose epicondylitis) and referral instructions from those solicitors acting on behalf of the defendant.  At no time was the plaintiff personally interviewed for the purpose of completing the report.

82      Dr Mutton was of the opinion that the plaintiff could perform each of the jobs described in the Recovre report.

The cross-examination of the Plaintiff

83      When queried who he complained to in relation to the difficulties he was having with the gear stick in his truck, the plaintiff gave evidence that he complained to “Jason” (the owner of the company), “Peter Camilleri” (the yard foreman) and generally the other drivers.

84      The plaintiff gave evidence that the truck that he was driving – an Argosy – had a gearstick which was “frozen” as a result of frozen cables.  He also confirmed that he told Mr Magri about pain in his left elbow and when it was put to him that Mr Magri had sworn an affidavit to the contrary, the plaintiff stated “He’s a liar”.  In particular, the plaintiff stated that he also informed Mr Magri’s wife, “Marion”, and noted the problems about the brake cables in the various running sheets.

85      The plaintiff also gave evidence that during the course of his driving he was wearing an elbow brace, which he had purchased from the chemist, and there were conversations between the plaintiff and Mr Magri as to the assistance the brace gave him when driving.  He wore such brace every day and believes he did so for about six or seven months before stopping work in 2012.

86      The plaintiff described that his truck was a semitrailer which has eighteen gears, and that through the operation of his left hand it was necessary to move through the gears when commencing to drive the truck.  If on a freeway, the plaintiff described that you would be “off and running”, but driving through suburbia you would not get much higher than the twelfth to fourteenth gears and such gears were used “constantly”, approximately every fifteen to twenty-five seconds.  In particular, the plaintiff described how you had to “put a lot of force onto it”[52] when moving the gearstick.  The plaintiff gave evidence that he attended a doctor the day following him ceasing work – although he had made complaint to the doctor about his left elbow, probably in January or February 2012.  He also gave evidence that the doctor provided a black elbow brace that was more adjustable.

[52]T24, L6-7

87      It was put to him that in the records of the clinic that he attended there was no record of any complaints of a left-elbow injury prior to 16 August 2012 and, in particular, the following evidence was given:

Q:“They’re the only complaints that are recorded in that attendance, so, what we’ve got, is, you told His Honour that in early 2012 you went to see Dr Dennis, and Dr Dennis, you complained to her about a problem with your left elbow; that’s right?---

A:       That is correct.

Q:      She told you to change the brace on your arm; that’s right?---

A:No, she said, ‘Hang on a sec’, and she went out of the room, came back in the room, handed me a brace, and she said, ‘Try this one’ and told me it was X amount of dollars, and that was that.

Q:There’s nothing in Dr Dennis’ notes about an attendance like that when you complained of pain in your left arm, okay.  I just wanted to put that to you, right; there’s nothing in the doctor’s notes about that.  First of all, could you be mistaken that you ever went to Dr Dennis with any problems in your left arm, left elbow?---

A:I might have not been there for a problem with my left arm.  I just mentioned it to her .”[53]

[53]T29, L1-18

88      The plaintiff accepted that when he saw the medico-legal orthopaedic specialist, Mr Westh, on 3 September 2013, he told him that his elbow had become increasingly painful while unhooking a trailer and that at the time he thought he heard a crack in his elbow.  In particular, the plaintiff explained that although it was not in his affidavit, the event described to Mr Westh was the day he stopped work – that is, the day in which he had trouble with the trailer with the tyre problem. 

89      The plaintiff accepted that on his last day of work he was angry with the circumstances surrounding him driving the truck with the bad tyres and there were strong words had between him and the owner, Mr Magri.  In particular, the following evidence was given.

Q:“Mr Skrzelinski, I was asking you questions about what it was you said to Mr Magri on that day.  Now, what I suggest to you – and you’ve accepted that you were annoyed by the events that took place on that day, that’s right?---

A:       That’s correct.

Q:      And you said those words to Mr Magri?---

A:       That’s correct.

Q:What I want to suggest to you is that you were due to work the next day, weren’t you?---

A:       I was due.

Q:      And you had a shift to run, you had a trip to drive?---

A:       That’s correct.

Q:When you walked out the door on the 15th of August 2012, you weren’t intending to go back; that’s right?---

A:       That’s incorrect.

Q:Well, why was it that you used the words to Mr Magri, ‘You can stick the job in your arse’, if you were intending to go back the next day and continue to work?---

A:       Because it’s not the first time I’ve said it to him.

Q:      On how many occasions prior to that have you said it?---

A:       Two or three.

Q:Over the course of what period?  Over the course of about five years?---

A:       Something like that, five years, ten years.

Q:      And you’ve always gone back to work every day?---

A:       Yeah.

Q:The real reason you didn’t come back to work on the 16th of August 2012 was because you’d had it with this job and you didn’t want to work for him any more?---

A:       That’s incorrect.

HIS HONOUR:

Q:When you say you’ve had it with this job and didn’t want to work any more, what do you mean by that?  Why didn’t you come back the next day?---

A:       Because I was in pain, I went and saw the doctor.

Q:      Pain in your elbow?---

A:       In my elbow, correct.”[54]

[54]T45, L2-T46, L1

90      The plaintiff accepted that he “used to chop a lot of wood” and “sell it to people who needed firewood”.[55]

[55]T46, L2-5

91      Furthermore, the plaintiff described that he used a chainsaw and the type of wood was mostly stringy bark, blue gum and messmate, and would have been 300 millimetres long and 300 or 400 millimetres in diameter.  The plaintiff accepted that he had done that type of activity “[o]ver a long time”, but was not something he continues to do and ceased “[a]bout eight, nine years ago”.[56]

[56]T46, L17-27

92      The plaintiff also confirmed that whereas he did much fishing prior to his elbow injury, he does not go fishing now because of ongoing problems in that area. 

93      Counsel for the defendant took the plaintiff to various Facebook photographs at pages 77-83 of the Defendant’s Court Book and, in particular, page 83, which is a Facebook photo posted on 24 March 2017.  The plaintiff described such photo as being a campsite near the Howqua River up near Mansfield, where he and his wife were camping at Christmas 2016.

94      The plaintiff accepted that it was his caravan seen in the picture and the plaintiff gave evidence that not only he and his wife were camping at the site, but also his daughter, her husband and friends, Robert and Liz.  There were also a number of other people, including his grandchildren.

95      The plaintiff accepted that his fishing rods were there with other rods, but he did not fish at all, whereas his grandchildren did.  The photograph also depicted a stack of cut firewood and he accepted that such firewood was cut by all the adults, including him.  The plaintiff gave evidence that he probably used the chainsaw on two or three occasions, but his son-in-law did all the splitting of a wood with a hand wood splitter.  The plaintiff gave evidence that since that time, over the last couple of years he has used a chainsaw maybe once or twice. 

96      The plaintiff confirmed that he was looking after a property owned by a friend and that property was approximately 115 acres, but had no stock.  The plaintiff confirmed that he does not have to do anything, such as water plants, or any particular maintenance, rather, he just has to keep an eye on the place. 

97      The plaintiff confirmed that he is currently on a Centrelink Disability Support Pension and that his wife is on a Centrelink Carers Pension.  Various bank records of the plaintiff and his wife were produced pursuant to a Notice to Produce and it was put to the plaintiff that there is a periodic deposit in the account which occurs every two weeks or so, and this goes back to 2016.  The plaintiff described that he receives something in the order of $673 to $693 per fortnight, which is paid into his bank account and that his wife, he believed “gets a little bit more being a carer” and that amount is paid into her account. 

98      The plaintiff described that he has received, over the last number of years, only moneys from Centrelink and interest on one bank account.  He has borrowed money from his daughter on one occasion in order to purchase an automatic motor vehicle, because the manual vehicle was getting too hard for him to drive.  In particular, the following evidence was given:

Q:      “What are you like with a manual vehicle?---

A:       What am I like with?

Q:      A manual vehicle, driving a manual vehicle?---

A:       I find it hard now.

Q:      Why do you find it hard?---

A:Because you’ve got to use your left arm for the changing the gears.”[57]

[57]T61, L19-23

99      When queried as to whether the plaintiff wanted to go back to work, he gave evidence “I’d love to work if I could”.[58]  The plaintiff accepted that he and his wife do go travelling sometimes in the caravan.  He also accepted he and his wife had commenced what was intended to be a slow drive around Australia, but that had to be brought to an end after eight months due to the illness of his mother-in-law.

[58]T62, L6-7

100     The plaintiff described that such trip did not involve any particular planning and they would travel sometimes about 100 kilometres, pull into a camping ground and sometimes stay six to seven weeks at a time.  In particular, the following evidence was given:

Q:“Well, you’ve had significant health problems in the past, haven’t you?---

A:       I have.

Q:      You mentioned that your mother-in-law is ill?---

A:       She was.

Q:      You mentioned that sadly your father’s ill now as well?---

A:       Yeah.

Q:You’re conscious, aren’t you, of making the most of the time you’ve got?---

A:       I am.

Q:What I suggest to you is that in an effort to make the most of the time you’ve got, you wouldn’t be wasting your time going back to work, you’d be out on the road with your wife and you’d be travelling around in your caravan; that’s the reality, isn’t it?

A:       --- (sic) But would like to be the reality.

Q:No, no, no, that is the reality.  It’s the reality that that is what you would prefer to be doing, travelling around Australia with your wife; that’s right?---

A:       No.

Q:      You disagree with that?---

A:       I disagree with that.

Q:I suggest that the only reason that you are not back at work is because you don’t have the desire to do so?---

A:       I disagree.

Q: Now, you are obviously able to do – you’re not – you’re obviously not completely bedridden, you can get up and do things.  Certainly you can do domestic chores, can’t you?---

A:       Some domestic chores.”[59]

[59]T64, L15-T65, L5

101     Counsel for the defendant referred the plaintiff to the report from Recovre.[60]  It was put to the plaintiff that he would be able to drive a truck, which he denied, because of his ongoing left-arm problem.  When queried about what part of the job would prevent him driving a truck, the plaintiff answered:

“Driving, changing gears, getting into the truck, getting out of the truck, doing the loading, the unloading, doing the turn buckle, doing the twist lock.”[61]

[60]See exhibit “C”

[61]T67, L25-28

102     In particular, when queried about driving a recycled truck driver which has dual controls – that is, left and right – the plaintiff also commented that it would be difficult for him to get in and out of such a truck because you require both hands to get yourself up into the cabin.  The plaintiff also commented that he would have difficulty coping with the changing of gears and made reference, again, to why he purchased an automatic car by way of a loan from his daughter. 

103 The plaintiff also accepted, under cross-examination in relation to the picking jobs, that he can pick up light items with his left hand, and with items up to 5 kilograms he can use both hands to lift them. When queried whether he was able to cope with that sort of work, the plaintiff said “Not repetitively”,[62] and when queried about what he meant by “repetitively”, he replied, “Constantly”.[63]  The plaintiff expanded on this by saying he could probably do that once or twice every half hour or so.

[62]T69, L30-31

[63]T70, L2-3

104     When queried about being able to drive to work if needed, the plaintiff gave evidence he would be capable of driving from “A” to “B” for about twenty minutes to half an hour, forty minutes.  When queried as to whether he could perform work as a “picker” in a large warehouse, the plaintiff said he was unaware of that type of work.  In particular, the following evidence was given:

Q:“What it’s described as is working in a large warehouse and having to pick certain items in a warehouse, which are light items, which are less than a kilo.  Walking through the warehouse with a trolley, and picking them off a shelf and putting them in a box, and then taking them to a dispatch area and then lifting the box and sealing it up and putting it in the conveyor.  Is that the kind of work you think you can do?---

A:       No.

Q:      Why not?---

A;       Because of my arm.

Q:      What part of it would hurt your arm?---

A:       It’s hurting right now, so it just – my arm.

Q:      So you don’t think you’d be able to push a trolley at all?---

A:       No.

Q:Don’t think you’d be able to reach out and pick up something that weighs less than a kilo with your right hand?---

A:       Not in multiple times, no.

Q:It’s your right hand.  There’s nothing wrong with your right hand or right arm, is there?---

A:There’s nothing wrong with my right arm, but I would have to go, because just in pain.

Q:But you’d be able to pick up things with your right hand, if your left arm was sore, wouldn’t you?---

A:I can pick things up with my right hand.

Q:So you’d be able to cope, wouldn’t you?---

A:No, I wouldn’t cope.  My arm’s in pain.”[64]

[64]T70, L26-T71, L19

105     The plaintiff gave evidence that he reached Form 4, and although he was not certain, he believed he passed that level of schooling.  He described his reading skills as “very poor”.[65]  He believes he was aged sixteen when he actually left school, after which he did a butchery/smallgoods course by way of an apprenticeship with an uncle who had a such business.  He worked in that area until he was about twenty-four or twenty-five, after which he “just wanted to drive a truck”.[66]

[65]T71, L29

[66]T72, L13

106     Since then, he has basically been a truck driver up to when he ceased work in August 2012.

107     Over the years he has had the following injuries and surgery:

(a)he underwent eye surgery about thirty-nine or forty years ago when a pipe hit his head and his eye, causing him to be off work for “maybe a year or two”, after which he returned to work as a truck driver;

(b)he has undergone cardiac surgery, for which he was off work for about one year twenty-three or twenty-four years ago, after which he returned to work as a truck driver;

(c)he has undergone shoulder surgery and he was only off for a week or so with that, which he thought was with the defendant.

108     The plaintiff also confirmed that since being off work he has not been offered any retraining or rehabilitation and although he went to some “work employment agency” that “didn’t work”.[67]

[67]T74, L13-15

109     When asked by the Court to say in a few words what gives him the most difficulty with his left elbow, the following evidence was given:

“…

A:      Your Honour, if you could chop it off I’d be gladly appreciated.

Q:     No, but I understand that - - - ?---

A:It just – it just hurts all the time, Your Honour, and some days are a  lot worse than others, but it seems to be worse of an evening.

Q:     Yes?---

A:When you’re trying to rest, but like now doing nothing, just sitting here, it’s just painful.”[68]

[68]T74, L29-T75, L5

Conclusion

110     The plaintiff is a sixty-two year old married man, who left school, he believes, at the age of sixteen at the end of Form 4.  I do find, consistent with his own evidence and that of his wife, that his reading and writing skills are poor. 

111     On leaving school, the plaintiff commenced an apprenticeship and worked in a family-related business involving the manufacture of small goods and the like.  When about twenty-four or twenty-five, he followed a desire to drive a truck, and since then until his cessation of employment in August 2012, he has basically been a truck driver.

112     On the evidence before me, the plaintiff would appear to have had a good work record.  Over the years, he has suffered an eye injury, which caused him to be off work for a “year or two” and to undergo surgery;, undergone cardiac surgery, for which he was off work for about one year and shoulder surgery, causing him to be off work for a relatively short period, after which he continued to work as a truck driver. 

113     There is no issue that the plaintiff, although having worked for the defendant on various occasions in the past, again commenced employment with the defendant in 2007 as a truck driver.  His duties involved driving heavy transport wherever it was required and also to load and unload containers at their destinations.  He estimated, and I accept, that he would be driving ten to twelve hours most days in city traffic.

114     The plaintiff is naturally right handed.  He alleges that from late 2011 and particularly from February or March 2012, he commenced to experience pain in his left elbow and arm when using the gearstick in his truck.  Such pain increasingly got worse over his continuing employment, leading him to ceasing work on or about 15 August 2012.

115     As I have recorded, the initial position of the defendant was that the plaintiff had either no injury when he ceased work, or if he did have some type of injury in his left elbow it may have been a mild epicondylitis, which was not related to his employment.  At the end of the evidence, counsel for the defendant, appropriately in my view given the evidence, informed the Court that his client accepted that when the plaintiff ceased work in August 2012 he was suffering from a compensable left epicondylitis.

116     It is perhaps apposite to make a finding on the credit of the plaintiff.  Although the credit of the plaintiff was not directly impugned during cross-examination, various issues were raised, effectively going to the credit of the plaintiff.  Most of the issues were overtaken by the concession that the plaintiff had suffered a compensable injury to his left elbow, consisting of an epicondylitis.  However, I consider it appropriate to comment on the issues raised by the defendant as they have the potential to impact on the overall credibility of the plaintiff.

117     Such issues were:

(a)Whereas the plaintiff gave evidence that he had continual trouble with what he referred to as stiff gears in his truck, evidence was given by way of the affidavit of Ms Hills, sworn 12 April 2018, that she had no difficulty when driving the same truck and, in particular, did not find the gears stiff.  Furthermore, Mr Magri, in his affidavit, sworn on 15 April 2018 – he being the proprietor of the defendant – said he was unaware of any stiffness in the gears of that truck;

(b)Whereas the plaintiff alleges that he made complaints generally about the gears in the truck, not only to Mr Magri but also to his wife and other truck drivers, both Ms Hills and Mr Magri, in their respective affidavits, dispute that any complaints were made in relation to any alleged problems with the gears;

(c)Whereas the plaintiff said he also complained about his left elbow, and for a period of months prior to him ceasing work was wearing a elasticised support over the elbow, again, Mr Magri denied awareness of any complaints made by the plaintiff in relation to his left elbow, either by word or observation of the elbow;

(d)Whereas the plaintiff in his cross-examination said that he believed he consulted a general practitioner in relation to his left elbow prior to ceasing work, the defendant relied on the medical records from the plaintiff’s medical practice, which did not demonstrate any recording of complaint prior to 16 August 2012;

(e)Although the plaintiff ceased work on 15 August 2012 and attended a general practitioner on 16 August 2012 (when diagnosed with epicondylitis), such non-attendance at work was not brought about by any work injury but, rather, the “blow-up” on 15 August 2012, when the plaintiff stormed out of the premises.

118     After observing the plaintiff giving his evidence, I formed the view that although he was not a particularly sophisticated witness, he never appeared to prevaricate when asked questions.  Indeed, I formed the view that he was attempting to give honest answers to the various questions posed. 

119     Ultimately, I found him generally a creditable witness who had, prior to him ceasing work on 15 August 2012, a very good work record.  Also, it must be borne in mind that when he attended the general practitioner on 16 August 2012, clinical examination supported the diagnosis of epicondylitis, which later was supported by the ultrasound of the left elbow and plain x-ray of the elbow on 20 August 2012.

120     I do find that the plaintiff did suffer left-elbow pain during the course of his employment, probably caused by the continual use of his left arm operating the gearstick of the truck, and also by other associated duties with truck driving involving getting in and out of trucks and securing loads.  In the same way, I accept that, for some period of time prior to ceasing work, he did wear some type of bandage on his left elbow to hopefully give some relief to the pain that he was suffering.  I also consider it likely that the plaintiff did make complaints, both to those in authority and to other workers, about his left elbow injury and, in particular, the stiffened gears. 

To the extent that the evidence of Ms Hills and Mr Magri differ to the evidence of the plaintiff in relation to these issues, I prefer the evidence of the plaintiff.

121     It was common ground between the parties that a perusal of the medical records of the plaintiff prior to 16 August 2012 did not reveal any recorded complaint of left-elbow pain.  When pressed by counsel for the defendant as to this lack of recording, the plaintiff was adamant that he did tell a doctor about the pain, but conceded that it may well have been at an attendance for another matter, and it was only talked about in general discussion.  However, he was adamant that the doctor, when this matter was spoken about, gave him a new support for his left elbow, which he wore at work.  I also accept that this is likely given my findings on his credit.

122     It cannot be gainsaid that the plaintiff and the proprietor of the defendant had a “blow up” on 15 August 2012 in relation to the state of a vehicle which the plaintiff was required to drive on that afternoon.  Again, there is no issue the plaintiff used colourful language when he left the premises, indicating that he was walking out from the job.  During the course of his evidence, the plaintiff accepted that he was annoyed and that he said words to the proprietor as alleged but, indeed, he also gave evidence that he had similar arguments where he walked out on two or three prior occasions (and then returned to work).  I tend to the view that in such workplaces where truck drivers gather to drive large trucks, opinions would be expressed with some force and, indeed, no doubt, in a colourful way. 

123     Ultimately, the defendant was suggesting that it was this event – the blow-up – which caused the plaintiff to stop working rather than any left-elbow injury – even if he had one at that time.  I consider such a situation to be unlikely given the record of the plaintiff and, indeed, his long-term on-and-off relationship with the defendant and his relationship with Mr Magri, who he had known for many years.

124     It must also be remembered, as I have pointed out earlier in this judgment, that when examined on the next day, the plaintiff had a clear medical condition – a left epicondylitis, giving rise to symptoms.  In all the circumstances, I consider it likely that the plaintiff reached a position by mid-August 2012, where his elbow was becoming more and more painful, causing him to seek medical attention.

125     For the sake of any doubt, I do find that the plaintiff suffered a left epicondylitis arising out of or in the course of his employment with the defendant over the period from, particularly, late 2011, up to and including when he ceased work on 15 August 2012.  I make such finding for the following reasons:

(a)As I have already indicated, I accept the evidence of the plaintiff that over a period of time during the course of his employment with the defendant he was experiencing increasing pain in his left elbow, brought about by the use of what he considered to be stiff gear cables in the brakes;

(b)I consider that at the time the plaintiff ceased work with the defendant the medical evidence was overwhelming that he was suffering epicondylitis in his left elbow.  As I have already recorded, clinical evidence on 16 August 2012 supported such a diagnosis and, thereafter, radiological examination by an ultrasound of the elbow and a plain x-ray of the left elbow on 20 August 2012 supported a diagnosis of medial and lateral epicondylitis. Such diagnosis was confirmed by the rheumatologist, Dr Le, partly on the basis of the MRI scan of the left elbow undertaken on 11 October 2012;

(c)When the defendant had the plaintiff initially medico-legally examined on 9 November 2012 by the consultant surgeon, Mr Roth, he also formed the opinion that the plaintiff developed medial and lateral epicondylitis of the left elbow;

(d)Consistent with the evidence of the treating doctors – that is, the general practitioners, initially Dr Hemetek and later Dr Lyndall Dennis, and the rheumatologist, Dr Le – I accept that such employment was a significant contributing factor for such left-arm condition.  I should add that the opinions of the treating doctors were reinforced by the medico-legal specialists, Mr Westh, who examined the plaintiff on 3 September 2013 and later on 5 August 2014; the orthopaedic surgeon, Mr Kossmann, who examined the plaintiff in September 2013, September 2014 and more recently in about August 2018; the occupational physician, Dr Horsley, who examined the plaintiff on 24 October 2018 and the rheumatologist, Professor Littlejohn, who examined the plaintiff on 12 August 2015.

126     Mr Jones, the orthopaedic surgeon, examined the plaintiff on two occasions – 10 September 2014 and later on 9 March 2018, on behalf of the defendant.  On the first occasion, although diagnosing the plaintiff to be suffering from “clinically mild medial and lateral epicondylitis of his left elbow”,[69] Mr Jones did not believe that the injury was work related, although he seemingly did accept that some of the work activities described by the plaintiff would have the capacity to "exacerbate his left elbow complaint but I do not believe they are the cause of his elbow condition”.[70] 

[69]See exhibit “B” at page 28 DCB

[70]See exhibit “B” at page 28 DCB

127     After his last examination, Mr Jones found the plaintiff to be suffering diffuse pain over the inner and outer aspects of the elbow, with apparently “no localised tenderness either of the medial or lateral epicondyles” to support a diagnosis of lateral epicondylitis.[71]  It is to be noted that Mr Jones considered the prognosis of the plaintiff’s left elbow was uncertain due to the lack of up-to-date investigations – of course, the last examination by Mr Jones predated the second MRI examination of the left elbow undertaken on 21 June 2018.

[71]See exhibit “B” at page 34 DCB

128     Also, the defendant relied on the consultant occupational physician, Dr Mutton, who examined the plaintiff on 22 March 2018 – again, prior to the second MRI examination of the left elbow undertaken on 21 June 2018 – and made a diagnosis that the “presentation” was not one of medial or lateral epicondylitis, but rather one of “general elbow pain with the main pain deep in the elbow antero-medially”,[72] which he considered consistent with the degenerative changes noted on the x-ray undertaken on 24 August 2012.

[72]See exhibit “B” at page 49 DCB

129     I do find that, on the basis of all the evidence, the ongoing symptoms suffered by the plaintiff in his left elbow are due to the epicondylitis condition arising out of or in the course of his employment with the defendant.  I reject any suggestion that such pain can be explained by the degenerative changes noted in the x-ray undertaken on 24 August 2012.

130 In this respect, it is to be noted that neither Mr Jones nor Dr Mutton had available the MRI scan of the left elbow undertaken on 21 June 2018, whereas the general practitioner, Dr Dennis and the medico-legal experts, Mr Kossmann (orthopaedic surgeon who last examined the plaintiff in August 2018) and Dr Horsley (the occupational physician who examined the plaintiff on 24 October 2018) had available the findings of the MRI scan. All those doctors accept that the symptoms of such epicondylitis will continue and are likely to persist. Consistent with such evidence, I am satisfied that the symptoms of the left-elbow condition are permanent within the meaning of s134AB of the Act.

131     During the course of cross-examination, the plaintiff was shown various Facebook photographs of camping sites where he had attended, and in which he freely admitted he was shown in photographic material.  He accepted that he and his wife do like going on caravan trips and camping, when available.  The plaintiff stressed that although he is capable of going on caravan trips, he does not drive far on any particular day and avoids activities involving heavy use or repetitive use of his left arm.  The impression I obtained is that he does some activities on the campsite, but is careful in what he does, and certainly avoids repetitive work involving the left arm.

132     I have little doubt that this does give him enjoyment, although he makes plain that prior to the onset of his left-elbow injury he was a far more active person, both around his house, doing maintenance and a variety of activities in his shed, and performing cooking activities.  And, also, he was a far more active person in relation to recreational and other duties, in that he enjoying fishing very much – which he now does not engage in – and was far more active in his outdoor activities when camping and the like.  I accept the evidence of the plaintiff when he describes the restrictions that he experiences when undertaking recreational and leisure activities.

133     I also generally accept the complaints made by the plaintiff in relation to his left elbow, which includes:

(a)as already mentioned, his inability to perform fishing activities – an activity which he did regularly prior to his left-arm injury – and the inability to now go to places for camping which might be difficult to get in and out of;

(b)In a similar vein, I accept that whereas he used to do four-wheel driving in central Victoria and Forest Lake, he is unable to do this because of the force and jarring in driving off road;

(c)Whereas he gathered firewood on a frequent basis using power tools, such activity is extremely limited, and many of the power tools in his shed he is incapable of using any more;

(d)Whereas he used to service cars or even rebuild cars, he finds he is unable to cope with that type of activity because there is too much pressure and force involved on the left arm ;

(e)Whereas he had a vegetable garden in the past, he is now quite restricted and can only do the simplest and lightest of those activities;

(f)Similarly, where he was a competent handyman, he is now limited because of pain in his left arm;

(g)With his background of making smallgoods, he has always been a keen cook and has in the past, two or three times a year, made up to 25 to 30 kilograms of smallgoods, but cannot do this anymore because of the use of his left arm;

(h)In relation to his grandchildren, aged between four and thirteen, he finds he cannot play with them and participate in their activities as much as he would like because he is expected to use both arms and has to be careful about everything he does;

(i)That he has trouble sleeping at night, because of the pain in his elbow.

134     In particular, he has persisting left-elbow pain which requires daily medication involving Ibuprofen, Maxigesic and Panamax, in combination, to control the pain.

135     I do find that such consequences to the plaintiff of the left-arm injury, when judged by comparison with other cases in the range of possible impairments, can be fairly described as being “more than significant and marked” and as being “at least very considerable”.

136     It is convenient to determine whether or not the plaintiff satisfies the pecuniary loss test within the meaning of the Act.  In this respect, the defendant put to the plaintiff that he was capable of doing those jobs set out in the Recovre report.  The plaintiff denied that he had such a capacity.

137     It would appear to be common ground that the plaintiff has no capacity to return to the type of work he was engaged in with the defendant.  The issue becomes whether or not he has a capacity for suitable employment within the meaning of the Act.  The jobs nominated by the defendant involve a driving job and two picking jobs.  It was agreed between the parties that the “without injury earnings” was $1,000 and accordingly, it is necessary for the plaintiff to discharge his onus in establishing that he is incapable of earning $600 presently, or into the foreseeable future.

138     I consider both jobs to be unrealistic to a man who has ongoing pain in his left arm and would have to use such left arm at some time during the course of such jobs.

139     Indeed, the opinion of the occupational physician, Dr Horsley, to which I have referred to earlier in this judgment, in my view, aptly describes the situation.  Realistically, the plaintiff has come to the end of his working life.  I also note that Mr Kossmann and the treating general practitioner considered that, realistically, the plaintiff has no capacity for work.

140     Although I accept that the plaintiff may well be able to do some odd jobs and maybe work for a couple of hours a day, at best, I do not consider that realistically he has a capacity to perform suitable employment, given his age, lack of industrial skills, lack of sophistication involving no real understanding or knowledge of computers and his educational background, which would be a significant impediment to retraining. 

141     I consider that the plaintiff has essentially no, or at best, very little, capacity which would translate to a sum well below the 60 per cent figure. 

142 I am of the opinion that the plaintiff has satisfied the pecuniary loss aspects of s134AB and as a matter of statutory construction is entitled to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” in respect of his left-elbow condition.

Conclusion

143     Accordingly, I grant leave to the plaintiff to claim common law damages for pain and suffering and pecuniary loss in respect to his left elbow injury arising out or in the course of his employment with the defendant.

144     I will hear the parties on costs.

---

145      

Annexure “A”

1    The plaintiff tendered the following documents:

Exhibit 1

·Affidavits of the plaintiff sworn on 5 December 2017 and 27 November 2018

·Affidavit sworn by the wife of the plaintiff – Mrs Anne Skrzelinski – on 27 November 2018.

(All such documents found at pages 4-14 of the Plaintiff’s Court Book (“PCB”)).

Exhibit 2

·Ultrasound of the left elbow and x-ray of the left elbow undertaken on 20 August 2012

·Ultrasound-guided left-elbow injection undertaken on 7 November 2012, together with left-elbow ultrasound with common flexor origin cortisone injection

·MRI scan of the left elbow undertaken on 11 October 2012

·Ultrasound and injection into the left elbow undertaken on 3 February 2014

·MRI scan of the left elbow undertaken on 21 June 2018

·Nerve conduction study results undertaken on 26 November 2018.

(All such reports found at pages 15-22 PCB).

Exhibit 3

·Medical Practitioner Questionnaire dated 13 October 2012

·Medical reports from the treating rheumatologist, Dr C Le, dated 1 November 2012, 29 November 2012 and 19 September 2013

·Medical report from the treating orthopaedic surgeon, Mr Richard Dallalana, dated 21 November 2013

·Medical reports from the treating general practitioner, Dr L Dennis, dated 3 May 2013, 28 June 2013, 27 September 2013, 23 June 2014 and 6 August 2018.

(All such medical reports are found at pages 23-40 PCB).

Exhibit 4

·Medico-legal reports from the orthopaedic surgeon, Mr Roger Westh, dated 9 September 2013 and 11 August 2014

·Medico-legal reports from the orthopaedic surgeon, Mr Thomas Kossmann, dated 18 September 2013, 17 September 2014 and 2 August 2018

·Medico-legal report from the occupational physician, Dr Robyn Horsley, dated 24 October 2018.

(All such reports found at pages 41-73 PCB).

Exhibit 5

·Worker’s Claim Form, dated 12 September 2012

·Letter from Xchanging, dated 30 November 2015

·Plaintiff’s wage summary.

(All such documents found at pages? PCB).

2   The defendant tendered the following documents:

Exhibit “A”

·Affidavit of Jennifer Dianne Hills, sworn 12 April 2018

·Affidavit of Jason Samuel Magri, sworn 15 April 2018.[73] 

[73]In respect of this affidavit, which consisted of the deponent swearing to the truth of a statement earlier made, counsel for the plaintiff objected to certain parts of the affidavit, essentially on the basis of relevance.  Argument ensued (Transcript “T” 79, Lines (“L”) 21-T92, L24).

(All such affidavits are found at pages 1-10 of the Defendant’s Court Book (“DCB”)).

Exhibit “B”

·Medico-legal reports of the consultant surgeon, Mr J Roth, dated 9 November 2012 and 6 December 2012

·Medico-legal reports of the orthopaedic surgeon, Mr Ian R Jones, dated 11 September 2014 and 19 March 2018

·Medico-legal report of the rheumatologist, Professor Geoffrey Littlejohn, dated 13 August 2015

·Medico-legal reports of the occupational physician, Dr Philip Mutton, dated 22 March 2018 and 15 November 2018.

(Such medical reports are found a pages 11-52 DCB).

Exhibit “C”

·Recovre Suitable Employment Report, dated 8 November 2018.

(Such report found at pages 53-76 DCB).[74]

[74]After discussion with the Court, it was the intention of the defendant to tender ultimately pages 112-118 of the General Practitioner’s medical records.  There was no formal tender.  I will have those pages admitted and marked as exhibit “D”.  Furthermore, no earlier records were tendered, as it was agreed between counsel that nothing was written about the plaintiff talking to any doctor at that clinic about left-elbow pain prior to 16 August 2012.