Speechley v Victorian WorkCover Authority
[2024] VCC 784
•6 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-03916
| KENNETH SPEECHLEY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 March 2024 | |
DATE OF JUDGMENT: | 6 June 2024 | |
CASE MAY BE CITED AS: | Speechley v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 784 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – left upper limb injury – pain and suffering – credit – disentanglement
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s335
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Popal v Transport Accident Commission [2023] VSCA 222; Peak Engineering & Anor v McKenzie [2014] VSCA 67; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Dressing v Porter & Anor [2006] VSCA 215; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
Judgment: Leave granted to the plaintiff to bring common law proceedings for pain and suffering damages pursuant to s325(1)(a) consequential to the accident which occurred on 12 November 2018.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor | Slater and Gordon Ltd Lawyers |
| For the Defendant | Mr B McKenzie | IDP Lawyers |
HIS HONOUR:
Background
1The plaintiff, Mr Kenneth Speechley, is sixty-eight years of age. On 12 November 2018, in the course of his employment with Tufflift Imports Pty Ltd (“Tufflift”), he suffered an injury to his left arm (“the incident”).
2Mr Speechley was working as an inspection technician. The injury occurred when the heavy power unit he was lifting overbalanced. Mr Speechley said, while endeavouring to prevent the unit from falling and being damaged he fell to the concrete floor, and the unit landed on his left arm and crushed it.
3Mr Speechley suffered fractures to the left radial shaft and distal ulnar with significant comminution.[1] Indeed, bone was sticking out of the skin. There was a delay in the surgery to repair the fractures and debride the wound. The surgery was not undertaken until 15 November 2018. At that time, plate-and-screw configuration internal fixation devices were inserted to secure the fractures.
[1]Amended Plaintiff’s Court Book (“PACB”) 32
4Mr Speechley says that, while the fractures have healed, he has been left with ongoing pain, reduced strength, impaired sensation, and loss of dexterity.
5Mr Speechley says his left arm injury is a serious injury for pain and suffering purposes.
6The Victorian WorkCover Authority (“VWA”), the workers compensation insurer for Tufflift, deny Mr Speechley has suffered a serious injury.
What is the nature of this proceeding?
7This is an application brought pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). Mr Speechley relies upon paragraph (a) of the definition of “serious injury” in s325(1) of the Act. That is, his left upper limb injury is a “permanent serious impairment or loss of a body function”.
8For Mr Speechley to be successful, he must establish that the consequences flowing from his left upper limb injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are “more than significant or marked” and “at least very considerable”, as per the narrative test set out in s325(2)(b) and s325(2)(c) of the Act.
What are the issues for the Court’s determination?
9While the VWA conceded Mr Speechley suffered a compensable injury, that was effectively all that was agreed. At the commencement of the application and in final submissions, the VWA said:
(a) Mr Speechley’s credit and reliability was in issue;
(b) Mr Speechley had not disentangled the consequences of his left arm injury from his numerous comorbidities;
(c) the matter was otherwise a “range case”, and Mr Speechley had not satisfied the onus of proof.
10That said, the issues for the Court to determine in this application are:
(a) Mr Speechley’s credit and reliability and whether I can accept his evidence;
(b) which of the medical opinions should be accepted and what assistance they provide;
(c) any disentanglement or other analysis the Court needs to undertake to properly identify the consequences flowing from the subject injury;
(d) does Mr Speechley’s left arm injury satisfy the serious injury test?
What conclusions does the Court reach in respect to Mr Speechley’s credit?
11As in a great number of cases of this type, Mr Speechley’s credit and reliability is critical.[2]
[2]See for example the analysis of the Court of Appeal in Johns v Oaktech Pty Ltd [2020] VSCA 10, particularly at paragraph [76].
12The VWA said:
(a) Mr Speechley deliberately misrepresented the true state of affairs for the purposes of this application;[3]
(b) Mr Speechley’s credit was impugned and the Court cannot believe anything he says.[4]
[3]Transcript (“T”) 100, Line/s (“L”) 23
[4]T115, L21, and T115, L30 – T116, L1
13The VWA attack on Mr Speechley’s credit and reliability was far reaching. The attack included matters touching upon:
(a) Mr Speechley’s evidence in respect to his weight;
(b) the circumstances of Mr Speechley ceasing work with Tufflift;
(c) the evidence concerning Mr Speechley’s retained lifting capacity;
(d) the nature and extent of the medical treatment which Mr Speechley has received for the subject injury;
(e) Mr Speechley’s failure to disclose his comorbidities;
(f) Mr Speechley’s failure to properly attribute consequences to his comorbidities;
(g) the histories provided by Mr Speechley to his general practitioner and, in particular, in respect to balance problems;
(h) Mr Speechley’s participation in snow skiing;
(i) Mr Speechley’s participation in the car club;
(j) there was no affidavit from Mr Speechley’s wife;
(k) Mr Speechley’s presentation in the witness box.
14I shall start with my assessment of Mr Speechley’s presentation in the witness box. This will provide context to the balance of my analysis of his overall credit and reliability.
15I accept Mr Speechley to be a straightforward and no-nonsense man; a man who sees things as black or white.
16While that may be a strength in some circumstances, it created difficulties for Mr Speechley when giving his evidence, and in some instances provided a basis for the VWA attack.
17I also accept Mr Speechley:
(a) To be a responsible man. This is evidenced by his many years working as a fuel-tanker driver, a job which has significant occupational risks, and the need for attention to detail and compliance with safe work practices.
(b) Is a hardworking and stoic man. Mr Speechley has a good employment record. Mr Speechley endeavoured to return to work with Tufflift in circumstances where I accept there was a fractured relationship with his employer. When his employment with Tufflift ended, Mr Speechley sought and obtained alternative work.
(c) Has a strong sense about what is correct. For example, Mr Speechley’s resignation from his employment as a school-crossing supervisor after disagreement with police in respect to safe practices.
(d) Is a man who has a strong sense of values.
18These traits have created tension in the course of this application. For example, Mr Speechley:
(a) formed his own view of what was relevant or not;
(b) takes matters very literally;
(c) when providing histories to medico-legal assessors, Mr Speechley was adamant that, if he was not asked the specific question, it was not necessary for him to volunteer any further information.
19Moving now to the balance of the specific attacks made by the VWA.
20The VWA said Mr Speechley’s evidence that his weight had increased as a result of the subject injury was wrong and a deliberate exaggeration. The VWA relied upon Mr Speechley’s evidence-in-chief that, at the time of the accident, his weight was about 98 kilograms.[5]
[5]T21, L21
21The VWA said that Mr Speechley’s weight at the time of his heart operation in 2017 was 109 kilograms.[6]
[6]T60, L23
22Mr Speechley said, in his oral evidence, that his weight is now 117.5 kilograms.[7]
[7]T21, L22
23There was no evidence that Mr Speechley had previously weighed 117.5 kilograms.
24There was no analysis whether Mr Speechley’s weight had decreased between the heart operation and the incident.
25Having reviewed this evidence and the nature of the VWA attack, I note:
(a) Mr Speechley’s weight has fluctuated over the years;
(b) he now weighs 117.5 kilograms;
(c) he attributes his current weight to inactivity.
26I accept that Mr Speechley’s current weight, at least in part, is attributable to decreased activity. However, I also accept there may be other contributing factors.
27In the total scheme of this case, issues to do with Mr Speechley’s weight do not provide me with great assistance one way or another. I do not accept the inference sought by the VWA that this aspect of Mr Speechley’s evidence must lead to the conclusion that his credit and reliability has been undermined.
28Moving now to the circumstances of Mr Speechley ceasing work with Tufflift.
29The VWA said that Mr Speechley improperly painted a picture that he resigned solely because of his left arm injury. The VWA said that was not so and that his back and left knee problems were the true reason.
30Mr Speechley said:
(a) after his injury the boss’s attitude towards him changed very significantly;
(b) he was allocated work that was unreasonably heavy;
(c) he could not cope with the physical demands;
(d) he was given an ultimatum by his boss that he either did the work or leave.
31Mr Speechley first made such allegations in his affidavit of 3 April 2023. Despite there being in excess of twelve months between that affidavit and the hearing of the application, there was no evidence provided from the VWA/representatives from Tufflift to refute such allegations. There was ample opportunity to do so.
32In his affidavit evidence, Mr Speechley said he resigned due to his physical inability to do the work demanded of him.[8] In his oral evidence, Mr Speechley said “nobody would have been able to do it”,[9] that is, the work was just too heavy.
[8]Paragraph [17], PACB 9
[9]T46, L25-26
33It was not put to Mr Speechley that his description of the work demanded of him was incorrect. Mr Speechley’s evidence was uncontradicted in respect to the physical demands associated with the work he was required to undertake leading up to his resignation. I accept Mr Speechley’s description of what occurred.
34I do not accept the inference sought by the VWA.
35Moving now to Mr Speechley’s lifting capacity.
36The thrust of the VWA attack was that Mr Speechley overstated the level of his impaired lifting capacity in his evidence and his histories to medical practitioners. There was particular focus by the VWA on a medical certificate provided by Mr Speechley’s treating orthopaedic surgeon, Mr Sushil Pant.[10] Put simply:
(a) The VWA said Mr Pant’s medical certificate was proof that Mr Speechley could lift up to 20 kilograms with his left arm alone;
(b) Mr Speechley asserted that this restriction was a combined left arm/right arm restriction brought about by his left arm injury;
(c) Mr Speechley said, in any event, his left arm lifting capacity was in fact impaired.
[10]See the medical certificate at Defendant’s Court Book (“DCB”) 49.
37I formed the view that the medical certificate:
(a) is unclear;
(b) is open to two interpretations.
38I refer to:
(a) my discussions with counsel in the course of the hearing;
(b) my analysis of Mr Pant’s evidence later in this judgment.
39I also note it is now some five years since Mr Pant issued this certificate. There is medical evidence touching upon Mr Speechley’s lifting capacity which is more recent.
40For the reasons which I will set out later in this judgment, I accept Mr Speechley does have a significant impairment to his capacity to lift with his left arm. I do not accept this medical certificate:
(a) as being definitive of Mr Speechley’s left arm lifting capacity;
(b) has the impact of impugning Mr Speechley’s credit and reliability, as asserted by the VWA.
41Turning now to the attack based on the nature and extent of Mr Speechley’s comorbidities and medical treatment over the years.
42A very significant aspect of the VWA cross-examination of Mr Speechley was puttage arising out of Mr Speechley’s general practitioner clinical records.
43As to the use of clinical records, I pause here to note the comments made by the Court of Appeal in Popal v Transport Accident Commission.[11] At paragraph 87, the court said:
“… Care must be exercised in the use of a patient’s medical records as evidence in a civil trial. This is particularly so where the maker of the record is not called to give evidence — as is the case in most serious injury applications determined in the County Court. Those records are compiled for the purpose of the clinical evaluation of a patient’s condition and not for selective forensic cross-examination at a trial. Provided this is appreciated then the records can, as they did in this case, provide an appropriate basis for findings of fact or in relation to credibility — or both.”
(Footnoted omitted.)
[11][2023] VSCA 222
44It is clear I must exercise care when assessing the probative value of cross-examination slavishly undertaken from clinical records; as was the case in this application.
45The VWA attack, based on the clinical records, was made on many fronts. For example:
(a) Mr Speechley suffered very significant knee and back problems;
(b) Mr Speechley’s post-injury attendances on his general practitioner were really for his knee and back injuries, and not for his left arm;
(c) the failure to have ongoing treatment for his left arm;
(d) the Celebrex prescriptions.
46I shall deal firstly with the “Celebrex” issue.
47Mr Speechley said, in his affidavit evidence, that he was taking Celebrex as part of the management of his left arm injury.
48The VWA identified, in various entries within the clinical records, where the prescription of Celebrex was said to be for Mr Speechley’s knee problems.
49Mr Speechley, in his oral evidence, agreed that at times this was so. However, Mr Speechley said that he also used the Celebrex to manage his left arm injury. Indeed, Mr Speechley said he has not had knee problems for a number of years. Mr Speechley also said that, in the management of his left arm injury, he had also used Celebrex which had been prescribed to his wife.
50While I will set out in greater detail, later in this judgment, my assessment of the nature, extent and consequences of Mr Speechley’s left arm injury, for the purpose of the current point, I accept that Mr Speechley’s use of Celebrex is consistent and reasonable in the management of his left arm problems. This being so, even if the Celebrex was ostensibly prescribed for other conditions or, indeed, sourced from his wife.
51I do not accept this line of attack by the VWA undermines Mr Speechley’s credit and reliability.
52Moving now to Mr Speechley’s back and knee issues.
53Mr Speechley’s problems with his back and knees were raised by the VWA in the context of not just medical treatment, but also on:
(a) His failure to disclose comorbidities and in particular his left knee and back problems;
(b) His failure to attribute consequences to his comorbidities and in particular his left knee and back problems.
54I will deal with these topics together.
55Mr Speechley did not refer to his knee and back problems in his affidavit evidence. The VWA said he should have. I agree.
56Mr Speechley’s general practitioner clinical records clearly identified that he had knee and back problems over the years; propositions that Mr Speechley agreed with in cross-examination.
57Mr Chancellor, from the Bar table, said he drafted the affidavits and sought to take responsibility for the failure in Mr Speechley’s affidavits to reference knee and back problems. In the circumstances where counsel had access to these clinical records at the time of preparing the affidavits,[12] it is difficult to understand why such problems were not referenced. However, that is not the issue.
[12]T125, L9-26
58Mr Speechley, properly advised by his legal team, ought to have made such disclosure. This is especially so where other comorbidities are referenced in his affidavit evidence.[13]
[13]Paragraph [5], PACB 5
59Further on this point, Mr Speechley’s knee and back problems were not included in the histories recorded by consultant rheumatologist, Associate Professor Evange Romas, nor orthopaedic upper limb surgeon, Mr Ash Chehata. There was partial disclosure in the history provided to consultant orthopaedic surgeon, Associate Professor Michael Wren.[14]
[14]T98, L25-28
60Mr Speechley was cross-examined extensively in respect to his knee and back problems. He was adamant that he has had no treatment since 2021 and that for the last three years he has had little or no problems. Mr Speechley made reference to various activities which he maintained was consistent with this assertion. For example:
(a) long-haul overseas flights;
(b) climbing the Parthenon;
(c) riding a pushbike.
61Mr Speechley, in re-examination, said:
(a) he had not had problems with his knees and back since July 2021;[15]
(b) he had not had any treatment for either his left knee or his back since March 2021.[16]
[15]T85, L2-4; T48, L15-19
[16]T85, L14-17
62Mr Chancellor said any criticism of Mr Speechley is one of omission, and that Mr Speechley had not deliberately misled the Court.
63On the face of it, such submission may have a level of appeal. However, it does not hold up on proper analysis. While I accept Mr Speechley is a man who forms black-and-white opinions and he considered what was relevant to the application was his left arm injury, that is not a choice for him to make. A plaintiff cannot be selective in determining what is relevant and what is not. That is a matter for the Court.
64I accept this aspect of the VWA criticism.
65The knee and back problems which Mr Speechley had prior to 2021 should have been disclosed. However, that Mr Speechley has had no problems of any significance for the last three years impacts on the weight to be given to this attack.
66Turning now to the VWA attack based on a lack of ongoing treatment other than over the counter pain relief medication and anti-inflammatories.
67Later in my judgment I will set out my analysis and conclusions in respect to the nature and extent of Mr Speechley’s left arm injury. At this stage of my judgment I will simply note that no further surgery has been recommended, and apart from the possibility of some further hand therapy, the thrust of the medical evidence is that Mr Speechley has to live with the current state of his left arm injury and its consequences.
68That being so, I give no significant weight to this line of attack. If there is no alternative active treatment suggested, it is not fair to criticise a plaintiff for not undergoing further treatment.
69Moving now to the balance issue.
70There were a number of entries in the clinical records which referred to Mr Speechley seeking advice from his general practitioner in respect to falls. Mr Speechley was cross-examined extensively on such records. While Mr Speechley agreed he had suffered a number of falls, ultimately he maintained that he did not have ongoing balance issues.[17] The VWA said that, due to balance problems Mr Speechley, regardless of his left arm injury, would no longer be able to ride a motorbike or ride a horse. Mr Speechley said this was not so and that:
(a) he continued to ride a pushbike;
(b) he could ride an on-road motorbike;
(c) he continued to ski blue runs.
[17]T62, 25-28
71I do not accept Mr Speechley has any significant organically-based medical condition which impacts upon his balance.
72I do not accept this line of attack impacts upon Mr Speechley’s credit and reliability.
73Moving now to snow skiing.
74Mr Speechley, in cross-examination, said he still skied blue runs at Mount Buller. Mr Speechley said:
(a) Prior to the incident he was a very capable skier. His capacity and experience was such that, in his younger years, he skied competitively in Europe.
(b) When he last skied prior to the incident, he skied high-level black runs.
75I accept that Mr Speechley is a very experienced and very capable skier.
76That Mr Speechley was a skier should have been disclosed in his affidavit evidence.
77Had Mr Speechley not disclosed to Associate Professor Wren his ongoing participation in skiing “during this winter season”,[18] I would have taken a very dim view of such omission.
[18]DCB 26
78However, Mr Speechley clearly disclosed to Associate Professor Wren that he was still skiing. Such a disclosure tends against a deliberate and calculated plan to mislead the Court.
79Going now to the attack on Mr Speechley based on the absence of affidavit evidence from his wife. The VWA urged me to draw an adverse inference, given what it said was a failure to produce evidence which would reasonably have been expected to have been called.
80In appropriate cases, such evidence can be very helpful to the Court and often provides insight and re-assurance.
81I am faced with the dilemma of what to make of such submission.
82Does it fall upon an injured worker to develop the strategy for and collate the evidence to be led in his/her application?
83Mr Speechley is not a self-represented litigant. The preparation of his application falls primarily to his legal advisers.
84The alternate view is that an adverse inference is open, given Mrs Speechley, having been referred to in the course of evidence, is a witness who could have assisted the Court.
85I accept the general thrust of the VWA submission. Such evidence may have been helpful. However, when put in the context of the totality of the evidence and the balance of my findings, I do not, in this case, give great weight to this criticism.
86Turning now to Mr Speechley’s participation in the car club.
87The VWA said Mr Speechley’s ongoing involvement in the car club ran contrary to the assertions made by him in respect to the level of pain and his consequences generally. I disagree.
88Mr Speechley said:
(a) he was restricted in his capacity to work on cars, but not precluded. Indeed, he bluntly said he was “not an invalid”;[19]
(b) this was something he and his wife did together. Indeed, she often drove to such events.
There was no evidence Mr Speechley’s membership of the car club, other than travel, required any particular physical capacity or use of his left arm.
[19]T75, L5
89Turning to the riding of a pushbike.
90The VWA said the Court should draw an adverse credit finding because Mr Speechley was riding a pushbike, and this ran contrary to his assertions that he was not able to ride an off-road motorbike and ride horses.
91I do not accept this is an appropriate conclusion which should be drawn. Mr Speechley said he was riding a pushbike on flat ground around Mansfield to exercise, with a view to keeping his weight under control. I accept this is not the same as:
(a) riding an off-road motorcycle at speeds up to 150 kilometres per hour in rough and dangerous terrain, or
(b) galloping a horse at speed with the need to control the animal with both hands.
92I accept Mr Speechley has made a considered assessment of risk. I accept his actions as reasonable.
93That brings me to Mr Speechley’s overall presentation in the witness box and my assessment of him in the context of his evidence in its totality.
94Mr Speechley was well tested in cross-examination.
95Having said that, there was not a lot of focus on Mr Speechley’s left arm injury of itself.
96For example, it was not put directly to Mr Speechley that he did not have left arm pain and that what he said about his left arm pain was wrong.
97As I have previously said, I accept Mr Speechley is a no-nonsense man, who holds strong views and is blunt and to the point.
98Mr Speechley did not enjoy being challenged in cross-examination.
99Indeed, Mr Speechley became irritated when in the witness box.
100Mr Speechley was skilfully cross-examined by Mr McKenzie on what, in the main, Mr Speechley clearly considered were fringe issues or matters which did not go to the real issue in his application: that is, his left arm injury.
101Mr Speechley was frustrated that he was not able to tell his story about his left arm as he would have liked.
102Notwithstanding his obvious irritation and frustration with the process, I consider Mr Speechley gave his evidence in a frank manner. Mr Speechley made concessions against interest. For example:
(a) he could ride an on-road motorbike if he wanted;[20]
(b) he still undertook work on, and serviced, his Volkswagen motorcar.[21]
[20]T63, L31
[21]T89, L9-18
103I do not accept that Mr Speechley embellished or misrepresented the true state of affairs. While there are aspects of the presentation of his case, and in particular his affidavit evidence that was subject to proper criticism, I have to balance that with the remainder of the evidence and my overall assessment of the man.
104Having been in the unique position of assessing Mr Speechley in the witness box and considering all of the evidence, I do not accept that Mr Speechley’s credit was impugned and that I cannot accept his oral evidence as being truthful and reliable. Indeed, I do.
105It is through this lens that I assess this application.
Disentanglement
106The VWA said Mr Speechley had failed to disentangle the consequences flowing from his numerous comorbidities from those flowing from his left arm injury. They said this was fatal to his application.
107Mr Speechley’s comorbidities include:
(a) back problems;
(b) bilateral knee problems;
(c) a coronary condition requiring surgery;
(d) carpal tunnel syndrome.
108That the consequences flowing from Mr Speechley’s comorbidities must be disentangled is clear.[22] Likewise, the process to be followed in disentanglement is well established.[23]
[22]Peak Engineering & Anor v McKenzie [2014] VSCA 67
[23]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60. See the analysis at paragraphs [25]-[35].
109I will deal with the consequences, which I accept flow from Mr Speechley’s left arm injury alone, later in this judgment. At this stage, I will make some general observations in respect to his comorbidities in the context of disentanglement.
110Firstly, Mr Speechley’s back problems.
111Mr Speechley had, over the years, suffered back problems on and off. Mr Speechley received various forms of treatment (for example, he was prescribed Prednisolone). The back condition, after initial acute presentation, would over time settle. Mr Speechley said he had suffered no back problems since 2021, nor were there any noted in his clinical records.
112Likewise, in respect to Mr Speechley’s knee problems. There had, over the years, been various entries relating to knee problems in the clinical records. Mr Speechley said he believed that it was his left knee which had given him problems. The clinical records indicate some right knee assessments and treatment. As with his back problems, Mr Speechley said he had received no treatment, nor had he any problems with his knees since 2021.
113As I noted earlier in this judgment, Mr Speechley said the lack of treatment and his level of activity over the last few years was consistent with his back and knees giving him little or no difficulty. Based on the totality of the evidence that appears to be so.
114While I accept Mr Speechley may, in my words, have some underlying “grumbling” issues due to wear and tear accruing over the years and degenerative change, there is no evidence before the Court that, at the present time, Mr Speechley suffers from grossly debilitating problems emanating from either his back or his knees.
115Turning now to Mr Speechley’s cardiac problems.
116Mr Speechley has clearly had a serious cardiac condition which necessitated surgical intervention. Mr Speechley says that he has made a good recovery.
117That Mr Speechley has retained his VicRoads commercial vehicle licence gives me a level of comfort that he has made a good recovery from his cardiac condition. Mr Speechley said he has to undergo echo stress testing every year to maintain this licence.[24] Mr Speechley said, and there was no evidence to the contrary, that he completed such assessments without difficulty.
[24]See also the letters of Dr David Eccleston, cardiologist, 27 November 2012, DCB 39 and Associate Professor James Wong, cardiologist, 2 November 2017, DCB 48.
118While Mr Speechley may require medication and ongoing monitoring of his cardiac condition, there was no evidence that, at the present time, the consequences are any greater than that.
119There is no evidence that Mr Speechley’s carpal tunnel condition was not treated satisfactorily and resolved.
120While I am conscious of the need to disentangle, I must:
(a) Not conclude, simply by reason of clinical records which relate to treatment provided many years ago, that such clinical records automatically mandate the conclusion that there are, in reality, consequences which are relevant and which must be disentangled.
(b) Remain conscious that, even if there is in fact some level of ongoing pain and/or restrictions flowing from the comorbidities, I must take into account the observations made by Ashley J in Dressing v Porter & Anor.[25] That is, the existence of serious comorbidities do not preclude a finding of serious injury for the subject injury.
[25][2006] VSCA 215
Which of the medical opinions should be accepted and what assistance do they provide?
The process to be followed
121I shall:
(a) firstly review the relevant treating medical practitioner evidence;
(b) then undertake an analysis of the medico-legal evidence in chronological order.
The treating medical practitioner evidence
122Referring to Mr Speechley’s left arm injury, I had:
(a) various radiological reports and photographs of the radiology plates;
(b) a series of letters from Mr Pant, dating back to 2018 and 2019, together with his operation report;
(c) a report from the current general practitioner, Dr Stephanie Wiles, dated 4 March 2024;
(d) a bundle of medical certificates and other miscellaneous records.
I shall focus on the evidence of Mr Pant and Dr Wiles.
Mr Pant
123Referring firstly to the operation report.
124On 15 November 2018, Mr Pant undertook:
(a) open reduction and internal fixation of Mr Speechley’s:
(i)left distal radial shaft fracture; and
(ii)distal ulnar fracture.
(b) wound exploration and debridement.
125The series of letters from Mr Pant spanned from his first review of Mr Speechley undertaken at the three-week-post-surgery mark, through to his final review one year post surgery.[26]
[26]See the letters contained at PACB 31-36.
126Mr Pant, in his reporting correspondence to Dr Brian Glassenbury, Mr Speechley’s then general practitioner, said:
(a) there was a contaminated open wound with soft-tissue trauma;[27]
(b) Mr Speechley had suffered a fairly extensive injury to his left forearm;[28]
(c) Mr Speechley’s injuries were a “very complex arrangement of fractures”.[29]
[27]PACB 32
[28]PACB 31
[29]PACB 36
127The photographs of the radiology provide great insight into the nature and extent of the metalware inserted into Mr Speechley’s left forearm and context to Mr Pant’s observations.[30]
[30]See the various radiological reports and photographs at PACB 17-30.
128At the six-month mark, Mr Pant noted there was still not complete union of the fractures.[31]
[31]PACB 35
129At the time of his final review in November 2019, Mr Pant was obviously very pleased with the outcome of the surgery he had undertaken. Mr Pant said at that time:
(a) There was near actual alignment of the distal radius and ulnar.
(b) There was almost a full range of movement.
(c) Mr Speechley did have remaining paraesthesia around his thumb.
(d) Mr Speechley was not able to lift heavy weights.
(e) Despite the quality of the fixation in the surgery, there will be a limitation to what Mr Speechley will be able to do with his left arm moving forward. That will have implications in terms of his work.[32]
[32]PACB 36
130In the course of the application, there was much debate about Mr Pant’s certification on 12 November 2019 that Mr Speechley could lift up to 20 kilograms.[33] Different interpretations of this certificate were urged upon me by the parties. As I have already noted in this judgment, I accept there are two potential interpretations. Exactly what Mr Pant actually meant is not clear to me. However, what I do accept, is Mr Pant’s observations back in 2019, that:
(a) Mr Speechley suffered an extensive injury to his left forearm;
(b) Mr Speechley has been left with limitations in what he can do with his left arm;
(c) there exists ongoing vocational impairments.
[33]See the Certificate of Capacity, dated 12 November 2019, DCB 49
Dr Wiles
131Moving now to Dr Wiles’ evidence.
132Dr Wiles commenced treating Mr Speechley on 22 June 2022. She took over from Dr Glassenbury.
133Dr Wiles said:
(a) Mr Speechley currently takes regular analgesia and anti-inflammatory medication to assist with the pain and swelling which persists since the time of the injury.[34]
[34]Paragraph [2], PACB 45
(b) The injury was stable. At this time, no further surgery is planned. However, she said there was always the risk of further surgery should the metalware in Mr Speechley’s left arm:
(i)become infected;
(ii)become bent or damaged;
(iii)rub or impinge on soft tissue.[35]
(c) Hand therapy may be required in the future.[36]
(d) Given the crushing nature of the injury, there is a possibility the affected left arm structures, for example, Mr Speechley’s left wrist, may progress to early degenerative change.[37]
(e) Mr Speechley was unable to undertake usual work activities.[38]
(f) Because of the weakness of Mr Speechley’s left forearm, wrist and hand, his lifting capacity was restricted.[39]
(g) There existed numbness in Mr Speechley’s left hand due to nerve damage.[40]
[35]Paragraph [4], PACB 45
[36]Ibid
[37]Paragraph [5], PACB 45
[38]Paragraph [6], PACB 45
[39]Ibid
[40]Ibid
The medico-legal evidence
134Moving now to the medico-legal evidence.
135I had the following medico-legal reports:
(a) Associate Professor Romas, 10 January 2023;
(b) Associate Professor Wren, 30 October 2023;
(c) Mr Chehata, 16 December 2023.
Associate Professor Romas
136Associate Professor Romas assessed Mr Speechley for the VWA on 10 January 2023.
137The purpose of this assessment was for an impairment assessment pursuant to the American Medical Association Guides to Permanent Impairment.
138Associate Professor Romas, on clinical examination, found:
(a) a 16-centimetre left forearm scar with signs of scar neuroma;
(b) reduced left wrist motion caused by soft-tissue contracture;
(c) clinical signs of injury to the superficial sensory branch of the radial nerve;
(d) injury to the palmar branch of the median nerve;
(e) reduced grip strength (12 kilograms in the left hand in contrast to 43 kilograms in right hand), that loss of grip strength being entirely due to the loss of active grip motion.[41]
[41]DCB 22
139Associate Professor Romas made the following diagnosis:
“Left wrist dysfunction and weakness following left forearm fractures, post-injury surgical scarring with neuroma, Left superficial radial nerve injury and Left median sensory nerve injury involving the superficial palmar branch (but not the digits), which are still causally connected to the accepted injuries.”[42]
[42]Ibid
140Associate Professor Romas also said:
(a) Mr Speechley’s condition was permanent into the foreseeable future;
(b) Mr Speechley’s clinical presentation was consistent with the mechanism injury;
(c) the findings on physical examination were plausible.[43]
[43]Ibid
Associate Professor Wren
141Associate Professor Wren examined Mr Speechley for the VWA on 20 October 2023.
142In respect to Mr Speechley’s left arm injury, Associate Professor Wren noted:
(a) Mr Speechley complained of a painful feeling of heaviness over the palmar aspect of the wrist and over the dorsal aspect of the wrist extending to the area of the inferior radioulnar joint. Aching pain was also present at rest. Symptoms were said to be worse at night and caused by waking from sleep.[44]
(b) Mr Speechley was conscious of reduced sensation of his left thumb. That was maximal in the area of the radial side of the thumb on the dorsal aspect and to a lesser extent the sensation of the tip of the thumb both on radial and ulnar sides.[45]
(c) The reduced sensation of the tip of the left thumb causes difficulty with fine manipulative tasks, for example, where fine manipulation is required to place two small objects together, or with fine manipulation, such as holding a screw in the left hand while using a screwdriver on the right.[46]
(d) The dense degree of hypoesthesia on the radial aspect of the dorsal portion of the thumb is indicative of injury to one of the digital nerve branches of the lateral branch of the superficial radial nerve.[47]
(e) There was a restriction of range of motion of the left wrist evident, with a 10 degree loss of radial deviation, 20 degree loss of ulnar deviation, 20 degree loss of wrist flexion and 15 degree loss of wrist extension.[48]
(f) There was reduced grip strength in the left hand. On testing, the grip strength of the right hand was found to be 42 kilograms and the left hand 22 kilograms.[49]
[44]DCB 29
[45]Ibid
[46]Ibid
[47]DCB 31
[48]Ibid
[49]DCB 32
143As to stabilisation and permanency, Associate Professor Wren said:
(a) Mr Speechley’s recovery “is as good [as] it can be expected for his injury”;[50]
(b) further treatment is unlikely to improve either symptoms or function.[51]
[50]DCB 34
[51]Ibid
144Associate Professor Wren expressed concern that Mr Speechley’s fear of further injury to his left forearm due to the plates and screws was unfounded.[52]
[52]See the discussion at DCB 33-34.
145Associate Professor Wren made the diagnosis of:
“1.Residual pain following previous fixation of distal radius and ulnar fractures.
2. Mild-to-modest restriction of range of motion of left wrist.
3. Subjective diminished sensation, palmar cutaneous branch of median nerve affecting left thumb.
4. Non-functional dense hypoesthesia of the digital branch of the lateral branch of the superficial radial nerve left hand affecting the dorsal aspect radial side left thumb.
5. Moderate reduction in grip strength left hand.”[53]
[53]DCB 35
146When asked to make “any other comment”, Associate Professor Wren said:
“I did not observe any abnormal illness behaviour, nor features of exaggeration of dysfunction or submaximal effort when undertaking examination of wrist movement or grip strength.”[54]
(Emphasis added.)
[54]DCB 35
147I pause to note, in a case where credit was “hotly contested”, I gain comfort in this observation.
Mr Chehata
148Mr Chehata assessed Mr Speechley for his solicitors on 12 December 2023.
149Mr Chehata, having noted the circumstances of Mr Speechley’s injury and the surgery undertaken by Mr Pant, went on to say Mr Speechley:
(a) has developed ongoing chronic pain and particularly an inability to make a full fist;[55]
(b) had a significant loss of sensation at the level of the left thumb;[56]
(c) has ongoing chronic pain, particularly in the wrist, and has not been able to load through that left wrist, in particular when lifting, pushing and pulling;
(d) has ongoing loss of sensation in the distribution of the superficial radial nerve;
(e) has a diagnosis of a traumatic open radius and an ulnar fracture that was internally fixed with a superficial branch of the radial nerve, loss of sensation and ongoing chronic dorsal wrist pain;[57]
(f) will have ongoing chronic pain and loss of strength, with no formal treatment required at this stage;[58]
(g) would be unable to return back to his former employment.[59]
[55]PACB 38
[56]PACB 39
[57]PACB 40
[58]PACB 41
[59]Ibid
What conclusions do I reach from the medical evidence?
150There can be no doubt from the medical evidence that Mr Speechley suffered a very nasty injury on 14 November 2018.
151It was also clear that it took quite some time, and a lot of therapy, for Mr Speechley to regain his current level of function.
152While Associate Professor Wren questioned Mr Speechley’s fear of aggravation of his injury due to the vulnerability of the plates to trauma, the medical material is otherwise generally consistent.
153I accept the medical evidence establishes there is an organic basis for Mr Speechley’s:
(a) complaints of pain;
(b) restricted range of wrist motion;
(c) impaired grip strength;
(d) impaired lifting capacity;
(e) complaints of paraesthesia.
154I also note:
(a) that it is consistent among the medical evidence that consequences such as loss of left wrist movement and decreased strength are consistent with the injury;
(b) there was no criticism made of Mr Speechley showing abnormal illness behaviour, or feigning or deliberately overstating the consequences of his injury in the course of these assessments.
155Finally, I note the medical evidence is generally consistent with the complaints which Mr Speechley made in both his affidavit and in oral evidence. That is, his left arm injury:
(a) is a source of persistent pain;
(b) has resulted in a loss of movement of his left wrist;
(c) has resulted in paraesthesia in the left thumb;
(d) has caused loss of dexterity;
(e) has caused loss of grip strength;
(f) has caused loss of lifting capacity;
(g) impacts on activities of daily living;
(h) is permanent.
156I accept each of these consequences flow from Mr Speechley’s left arm injury.
Some general observations on the “serious injury” test
157Before moving to complete my determination of Mr Speechley’s application, I make some general comments in respect to the “serious injury” test.
158It is Mr Speechley who has the onus of proof.
159To establish “serious injury”, the threshold is high.
160As set out in Stijepic v One Force Group Aust Pty Ltd & Anor,[60] while the evidence may disclose pain and suffering consequences which are both “marked” and “significant,” for Mr Speechley to be successful, I have to be persuaded that the consequences due to left arm injury can fairly be described as being “more than significant or marked” and being “at least very considerable”.
[60][2009] VSCA 181
161As the Court of Appeal said in Ellis Management Services Pty Ltd v Taylor[61] in relation to range cases:
“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. … .”[62]
[61][2013] VSCA 326
[62](Ibid) at paragraph [59]
162As a part of my analysis, I must give consideration to not only what it is that Mr Speechley says that he has lost, but also what it is that he has retained.[63]
[63]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
163The process to be followed in the assessment of pain and suffering consequences was considered by the Court of Appeal in the much-quoted case of Haden Engineering Pty Ltd v McKinnon.[64] The observations made by Maxwell P provide me with assistance in respect to the tasks which I am to undertake in the completion of this aspect of my determination.[65]
[64](2010) 31 VR 1 (“Haden”)
[65](Ibid). See in particular Maxwell P at paragraphs [9]-[17].
164Further, it is the “collective nature” of the pain and suffering consequences which must be considered. That is, the Court must consider “globally” all of Mr Speechley’s:
(a) actual experiences of pain; together with
(b) the disabling and debilitating effects of the impairment.[66]
[66]Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at paragraph [114] (per Hargrave AJA)
Is Mr Speechley’s left arm injury a “serious injury” for pain and suffering purposes?
165I note:
(a) Mr Speechley is right-hand dominant. His injury is to his left and non-dominant hand/arm.
(b) While Mr Speechley had, many years prior, suffered from carpal tunnel syndrome, there was no evidence of any ongoing consequences at the time of injury. I accept that, at the time of injury, Mr Speechley had no impairment or problems with his left arm/wrist/hand.
166Referring firstly to pain.
167I accept Mr Speechley:
(a) Suffers chronic pain in his left forearm and wrist which is organically based. Indeed, Mr Speechley suffers a level of baseline discomfort which, in his words, “flares with increased activity”.[67]
(b) At times, suffers increased pain and “electric shock pain” if he knocks his left arm.[68]
(c) Continues to suffer pins and needles/loss of sensation in an area around the base of his left thumb and the tip of his left thumb.
(d) Continues to have swelling of the left wrist.
(e) Continues to take Panadol Osteo on a daily basis. Mr Speechley uses Celebrex intermittently when the pain is more acute.
[67]Paragraph [4], PACB 13
[68]Ibid. Also see the explanation provided by Associate Professor Romas at DCB 22.
168Mr Speechley has endured over five years of left arm and wrist pain. There is no surgery suggested which would alleviate this pain.
169It was not directly put to Mr Speechley in the course of his application that his complaints of pain were not genuine. This gives me comfort in reaching the conclusion that Mr Speechley’s complaints of pain are genuine.
170I accept the effects of Mr Speechley’s left arm injury are permanent and Mr Speechley will have to live with his pain consequences for the rest of his life.
171Mr Speechley’s level of pain is, in itself, a significant consequence.
172Moving now to loss of movement, grip strength and dexterity.
173I accept:
(a) Mr Speechley has a permanent loss of movement in his left wrist;
(b) this loss of left wrist movement, as explained by Associate Professor Romas, impacts upon his grip strength;
(c) the objective testing confirms a significant loss of grip strength.
174I also accept that, by reason of the loss of left wrist motion and paraesthesia to the left thumb, Mr Speechley’s:
(a) left hand pincer motion is impacted;
(b) capacity to undertake activities involving fine motor skills is impaired.
175Such impairment will impact Mr Speechley in many ways. For example:
(a) holding everyday items in his left hand, such as glasses, cups and plates;
(b) using a screwdriver and screw or hammer and nail;
(c) undertaking everyday activities when tinkering in his garage – for example, handling nuts and bolts;
(d) any lifting, pulling, manoeuvring and general handling of items involving the forceful or repetitive use of his left hand or heavy weights;
(e) anything that requires forming a left hand fist.
This list is not exhaustive.
176Again, I accept Mr Speechley:
(a) for in excess of five years has endured such impaired function;
(b) will have to live with such impaired function for the rest of his life.
I accept such consequences, in their own right, to be significant.
177Moving now to work.
178I note:
(a) this application does not include a claim for economic loss certification;
(b) the circumstances of Mr Speechley ceasing work with Tufflift are in dispute.
179While Mr Speechley’s capacity to undertake heavy manual work, in general terms may have been affected by his left arm injury, this is not a case where it is said he has lost a much-loved job. Indeed, Mr Speechley obtained alternative employment and continued working through to retirement. Thus, in the context of paragraph 15 of Haden, I do not give significant weight to this aspect of the application.
180Moving now to sleep.
181Mr Speechley said:
(a) he was not able to sleep on his left side;
(b) he wakes most nights due to pain in his left arm;
(c) he takes painkilling medication for his left arm to try and assist with sleep.
182It was put to Mr Speechley that it is really his knees and/or back which caused his sleep problems. Mr Speechley denied this.
183I accept Mr Speechley’s sleep is impacted by his left arm injury alone. I give some weight to this consequence.
184Moving now to activities of daily living.
185I accept Mr Speechley is able to live and function independently.
186However, I accept there are many aspects of his daily life which are impacted by his pain, impaired movement, impaired grip strength and loss of dexterity.
187Firstly, moving to household and domestic activities. Mr Speechley said he was impacted in many ways. For example, he said:
(a) he is no longer able to do the heavier work around the house, such as shifting furniture;
(b) there are gardening tasks which he is now precluded from undertaking – for example, using a shovel and rake to apply new gravel to his driveway.
This list is not exhaustive. It is, however, illustrative.
188I accept Mr Speechley is impacted in what he can do around the house and garden. I give this some weight.
189Moving now to Mr Speechley’s recreational interests. I consider this to be an important aspect of this application.
190Before moving to my specific analysis, I wish to make a preliminary observation.
191I accept that Mr Speechley participated in and enjoyed what I consider to be more physically-demanding and hardcore recreational activities than may be the norm. Mr Speechley is/was, using my words, somebody who enjoyed the “adrenaline rush”. Mr Speechley revelled in recreational activities which were undertaken at speed and with levels of inherent danger.
192I turn firstly to off-road motorbike riding.
193Mr Speechley said that, prior to the incident, he would participate in off-road motorbike riding at speeds up to 150 kilometres an hour. Such activity might not be what most of us would consider to be fun. However, for Mr Speechley, it was just that.
194Mr Speechley said that his pain, loss of function and the risk of aggravation of his left arm injury, precluded him from this activity. I note that even Associate Professor Wren, who was the most favourable medical witness for the VWA, agreed that Mr Speechley’s left arm injury prevented him from such activity.
195I accept, by reason of Mr Speechley’s left arm injury alone, he is precluded from participating in off-road motorbike riding as he had. This is a significant loss to a man who revelled in such activities.
196Likewise, I accept Mr Speechley is precluded from horse riding. Again, something which Mr Speechley was doing up to the time of his injury.
197I accept the stress on Mr Speechley’s left arm associated with controlling a galloping horse would cause increased pain and he would be functionally impaired. Indeed, I accept the combination of pain and impaired function would be likely to create a dangerous situation in the control of, or perhaps I should say lack of control, of his horse.
198I accept that vigorous horse riding is an activity from which Mr Speechley is precluded. For a man who is clearly a “horse person”, this is a significant loss.
199Moving now to snow skiing.
200I accept this aspect of the application is contentious.
201It is again appropriate to put into perspective Mr Speechley’s background in this sport. It was not challenged that Mr Speechley was a very experienced and capable skier. Indeed, it was his evidence that in his younger days he had skied competitively in Europe. In the last ski season before the injury, Mr Speechley was skiing high-level black runs.
202Mr Speechley said, by reason of his left arm injury, he is now restricted to skiing blue runs. Given his ability on skis, I accept that Mr Speechley would be able to ski blue runs without poles and with an extremely low risk of falling.
203While to an average person being restricted to a blue run at Mr Speechley’s time of life might not seem to be a big loss, it is again necessary to put this into context. As I have said, I accept Mr Speechley to be a man who enjoyed extreme sports and the thrill which went with them.
204I accept the impact of Mr Speechley’s left arm injury on his recreational pursuits represents a significant loss to him.
205I briefly move now to other activities which were identified in the course of the application. Mr Speechley said, for example:
(a) He was limited in what he could do when working on his cars. He conceded he could still service his Volkswagen, but said he needed help from friends to do other more physically-demanding aspects of this hobby.
(b) Driving long distances becomes painful.
(c) He handles luggage with his right hand, not his left.
Again, this list is not exhaustive.
206I accept that, in general terms, Mr Speechley’s overall enjoyment of life has been impacted by his pain, pain-related restrictions, impaired left wrist movement and loss of dexterity. I accept that, every day, Mr Speechley will be impacted many times in some way or another by reason of his left arm injury. This will be lifelong.
207As I have already noted in this judgment, I must also take into account that which Mr Speechley has retained. For example, Mr Speechley:
(a) was able to resume employment;
(b) continues to live independently and perform most activities of daily living;
(c) still engages in his hobby of servicing and working on cars;
(d) still skis blue runs;
(e) has the capacity to engage in overseas travel;
(f) can ride a bike;
(g) continues to attend car club meetings.
Again this list is not exhaustive.
208I accept these are activities which I must consider and synthesise with the consequences which I accept Mr Speechley suffers by reason of his left arm injury.
209To briefly summarise my findings.
210Mr Speechley is sixty-eight years of age. He has suffered in excess of 5 years of pain already. Mr Speechley will endure ongoing pain in his left forearm and wrist for the rest of his life. He has been left with permanent loss of movement, grip strength and dexterity. This impacts him every day in many different ways. I accept Mr Speechley’s left arm injury has had a significant debilitating effect on his life.
211I accept the consequences of Mr Speechley’s left arm injury are “very considerable”.
212Leave will be granted to Mr Speechley to pursue pain and suffering damages.
Consequential orders
213I will hear from the parties in respect to the consequential orders arising out of this judgment.
---
0
10
0