Ta v Lucky Import and Export Co Pty Ltd - [2000] WADC 283

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TA -v- LUCKY IMPORT AND EXPORT CO PTY LTD [2000] WADC 283

CORAM: FENBURY DCJ

HEARD: 18-22 SEPTEMBER 2000

DELIVERED : 7 NOVEMBER 2000

FILE NO/S: CIV 3628 of 1999

BETWEEN: VIEN CAO TA
Plaintiff
AND
LUCKY IMPORT AND EXPORT CO PTY LTD
Defendant

Catchwords:

Negligence - Damages - Wrist and elbow injury - Vascular headaches - depression - Whether plaintiff exceeds statutory threshold

Legislation:

Workers' Compensation and Rehabilitation Act 1981, s 93D and s 93E

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr B L Nugawela
Defendant: Ms B Mangan

Solicitors:

Plaintiff: Friedman Lurie Singh
Defendant: Phillips Fox

Case(s) referred to in judgment(s):

Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192
Newman v Nugent (1992) 12 WAR 119

Case(s) also cited:

Clarke v Ryan (1960) 103 CLR 486
Cullen v Trappell (1980) 146 CLR 1
Graham v Baker (1961) 106 CLR 340
Klimoski v Water Authority of Western Australia (1989) 5 SR (WA) 148
Maiward v Doyle [1983] WAR 210
Mocevic v Prok Group Ltd [1999] WADC 6
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997

FENBURY DCJ: This is an action for damages brought by the plaintiff against his employer for injuries sustained at work on 30 April 1998.
Up until 25 September 2000, by its defence filed 18 January 2000, the defendant denied each of the three causes of action upon which the plaintiff relied. Further, the defendant asserted that the plaintiff was guilty of contributory negligence.
By a defence that was substituted on 15 September 2000, the eve of this trial, the defendant admitted negligence in a general sense without specifying any particular, and discarded its allegation that the plaintiff was guilty of contributory negligence. Thus the trial only involved the issue of the quantum of damages.
When the late change in the defendant's stance was queried the Court was met with the response that, in reality, the reason for the denial of liability was because of the insurer's view that the plaintiff would not succeed in proving an amount of future pecuniary loss in excess of the threshold set by s 93D of the Workers' Compensation and Rehabilitation Act 1981.
In my view such a method of proceeding is greatly to be deprecated and especially so when no fresh attempt at compromise is made following capitulation on the issue of liability. This strategy is likely to lessen the chances of compromise and is not in accordance with the spirit of the pre‑trial conference system in this Court.

Plaintiff's previous history

The plaintiff was born in Cambodia on 23 November 1964. His native language was Teochew.
At the age of 5 years the plaintiff fled to Vietnam with his family where he received his education. He started school in 1971, ceasing in 1975 when he was required to look after his brothers and sisters. In 1980 at the age of about 15 or 16 years the plaintiff went to work in a bakery. In 1982 he returned to live with his family in view of his father's ill health. Later, in 1985, he recommenced employment selling cigarettes on the streets. He married in 1986 at the age of about 22. In 1987 the plaintiff left Vietnam by boat with his wife and travelled to Malaysia as a refugee.
It is to be noted that whilst he was in Vietnam the plaintiff received a limited education, and that the sort of work in which he engaged was menial in nature. He said that he could read and write Vietnamese but that he was below average in standard. He had no English.
On 27 March 1990 the plaintiff arrived in Western Australia and was granted residency. He attempted to learn English and enrolled in formal classes. He completed 510 hours of English classes and by about 1992 he commenced looking for work. He found casual employment with the defendant company. The company's business was the import and export of Asian food stuffs of various kinds including rice, fish oil, and noodles.
At some unknown time shortly after his arrival the plaintiff sat for a written test to obtain his "A" class motor driver's licence. He obtained the licence after his fifth attempt.
The plaintiff's work tasks with the defendant involved, inter alia, assisting in the delivery and receipt of goods, assisting in the stacking of shelves. He also assisted in packing up goods for delivery. He worked about 10‑12 hours per week. He would assist in deliveries to Vietnamese and Chinese restaurants from time to time. It was physical work. The packing and delivery of goods such as rice, coconut milk, soy sauce, fish oil and the like, was required. Some of these goods were quite heavy. A bag of rice could weigh up to 25 kg. The plaintiff might be required to shift 100 bags in a day. The bags or cartons of other goods were not as heavy, although still significantly heavy, being something in the region of perhaps 15‑20 kg. The plaintiff stated that these goods would arrive in a shipping container and would take four people three hours or so to unload. This would occur two or three times a week and he did this work until about the end of 1992.
In 1993 the plaintiff found casual employment elsewhere. He got a job with a man named Tan Hoa Thanh. He worked as a storeman until about the end of 1993 after which he went back to work for the defendant recommencing there in about March 1994. He did the same sort of job as before and, if there was an opportunity, he also worked as a storeman. He was employed part‑time at first, working some 10‑12 hours a week, but then went onto full time employment.
The plaintiff indicated that he was in full time employment from about 1994 or 1995 but then went back onto part‑time in 1996. His evidence was that on 26 April 1998 the defendant employed him on a full time basis. The plaintiff was very happy with this development because it enabled him to bring in more income for the family. His gross income was in the region of $350 per week.

The accident

On 30 April 1998, just four days after commencing full time employment, the plaintiff was injured in an accident. He was unloading a truck that contained a large number of cartons of fish sauce. So as to be able to unload the truck the plaintiff was required to stack up eight pallets on the floor and to clamber upon them so as he could reach the door of the truck, open it, and unload it. In the course of doing so and having commenced to unload the cartons, one or more fell on him and knocked him off the stack of pallets onto the ground. He hit the ground head first. He fell a distance of about 1.8 m. He said that he fell on the right hand side of his body. He said that he felt dizzy and he felt pain. He was bleeding from the nose. He could not see properly. He was taken to Royal Perth Hospital.
The plaintiff called evidence from Mr Brett McCarthy who was the truck driver. He witnessed the plaintiff's fall. He said that after the plaintiff fell he was moaning and moving about. He helped the plaintiff to his feet. He was groggy. He said the plaintiff was trying to get up as he went over to help him to do so. He said the plaintiff kept closing his eyes and then opening them again. He had no conversation with the plaintiff in English.

The plaintiff's injuries

The plaintiff was taken to Royal Perth Hospital where he was given an injection in the arm and in his back. He said he had a lot of pain. His arm was put in plaster which remained for four weeks. After the plaster was removed the plaintiff underwent physiotherapy. He said he suffered a lot of pain from his arm.
The plaintiff's injuries are pleaded in the statement of claim and include fractures to the right wrist and right elbow.
The plaintiff also asserts that he suffered a soft tissue injury to his neck, an aggravation of degenerative changes in his spine, soft tissue injury to his lower back radiating down to his thigh, headaches, dizziness and depression.
Some period after the plaster was removed from his arm it was discovered that the plaintiff had small pieces of broken bone near the elbow which were surgically removed.
Apart from pain and discomfort and loss of function in his arm the plaintiff complained of significant headaches which he said commenced on one side of the head and moved over the whole head. The headaches are occasionally accompanied by vomiting. This does not occur every week but on occasions. Prior to the accident the plaintiff rarely had problems with headaches. The headache problems occur at any time. He takes prescribed tablets to ease the pain. The last headache he had prior to trial was 48 hours beforehand.
The plaintiff gave evidence that he was referred to a neurologist. He agreed that he had had difficulties occasionally before the accident with headaches but that they were different to the ones he had since. They lasted for a longer time and were more severe.
The plaintiff said that in about September 1998 the defendant's insurers required him to attend Work Focus sessions. An effort was being made to get the plaintiff to return to work with the defendant but he said that he was unable to do so. He said that his lawyer referred him to Southern Rehabilitation. It was in about October 1998 that the plaintiff's surgery for the removal of the small bone in his elbow was required and this affected his efforts to return to work at that time.
The plaintiff said he attempted to return to work and was engaged in replenishing shelves with packets of noodles three days per week two hours per day, but ceased in about June 1999. He said that he went back to work between about December 1998 and May 1999 with the defendant and that he had tried his best to do the light duties offered. He also said that he did work entering data on a computer for the defendant. He said he was taught to turn the computer on by the proprietor, Mr Tran, but he did not know how to make it print. He said that he made a lot of mistakes and was not able to correct his work. He indicated that it took him an inordinate length of time to do the computer work required.
The plaintiff said that the defendant sent him to TAFE to learn English and attend a computer course. That was due to commence in May 1999. The plaintiff said that his wife used to take him there but the fact that she had to wait for him with little children in the car caused quarrels between the two of them. In due course his wife refused to assist in transport and the defendant's insurer assisted by funding transport by taxi to go to TAFE up until early 2000. After that assistance ceased the plaintiff took the bus. This required three buses and about 1½ hours travelling each way. The plaintiff said that he is not able to drive a car.
The plaintiff said that he was referred to Dr Singh for counselling because of the quarrels he was having with his wife. He said that he took quite a deal of medication of various kinds and gave specific evidence concerning drug description and cost.
The plaintiff was asked about the present symptoms in his arm. He said that he felt pain "like a spasm". He said the pain is always there and when the weather is cold it is more intense. When the weather is hot it decreases but then his headaches seem to increase. From time to time his wife will massage his arm when it is painful and that gives him some relief. She does this three of four times a week.
The plaintiff also gave evidence about his pre‑accident domestic duties and his lack of ability to do them since the accident because of his injuries and his symptoms. The plaintiff said that he has pain in his arm and numbness in his hands on occasions. He wakes up at night. From time to time he has tried to resume employment with the defendant but with no success.
The plaintiff said that he has attended appointments with various medical practitioners, some at the request of the defendant. The plaintiff obviously had a dim view about the consulting technique of Mr Brash and Dr Schaeffer, being two of the practitioners to whom the plaintiff was referred by the defendant's insurer.
The plaintiff gave evidence about the effect the accident had had upon his enjoyment of life and in particular playing with the children in basket ball and fishing. He said that his accident caused behaviour has affected his marriage and he takes medication for his headaches.
In cross‑examination the plaintiff was probed on his work history and the extent of efforts to look for work that he made upon arrival in Australia. He explained his lack of effort to obtain work as a market gardener by saying that he did not like work that was exposed to the sun. He obtained his employment with the defendant after two or three unsuccessful attempts elsewhere.
The plaintiff explained his duties whilst employed with the defendant. The defendant had shops in Marangaroo, Beechboro and Girrawheen. However the plaintiff was required to do deliveries in other parts of the city. He obtained assistance from workmates about where to go.
The extent of the plaintiff's ability to speak English was very difficult to determine. He obviously was able to speak some English but in the trial, save for one occasion when he read the label on a bottle of pills, he never spoke English. I got the impression that he had greater ability to speak English than was apparent, however it was not possible to determine the extent of his fluency.
The plaintiff's pre‑accident earnings as evidenced by his tax returns were put to him. It was curious that the plaintiff declined to work in the sun given his country of origin but the point was never explored. The plaintiff said that his English was poor and his Vietnamese was barely adequate. These two factors made it difficult for him in the employment sphere. Mr Tran, the proprietor of the defendant company, spoke Teochew and so the plaintiff could communicate with him satisfactorily.
The plaintiff said that he had not read the statement of claim or had it read to him. He agreed that he had not complained of his neck injury prior to August 1998 which is some four months after the accident. He said that when he had pain in his arm he was not aware of the pain in his neck. His explanation about the lack of earlier complaint concerning his neck was difficult to follow. As to headaches the plaintiff said that he made a complaint of headaches and pain to his general practitioner but he did not do so until about August. This turns out not to be accurate (to the plaintiff's benefit) there being evidence he made a complaint to his GP's partner only a few days following the accident.
The lack of contemporaneous complaints of symptoms in his neck and back was put to the plaintiff by counsel. He did not complain of his low back pain until late 1998. There is difficulty for the plaintiff, as I see it, in the lack of contemporaneous complaint of some of the he says are accident caused.
The plaintiff was cross‑examined on what he told a person engaged with Southern Rehabilitation named Fran Smart. He agreed that he did not tell another practitioner, Mr Wang, that English was not required for him to be able to work at Lucky Imports. In fact he said that English was required because some of the customers spoke English although he agreed that he did not have to speak English to fellow employees or to the proprietor.
After the interposition of the evidence of Brett McCarthy, the plaintiff's cross‑examination continued. He said that he complained to Dr Nguyen about back pain in July 1998. He said that he did not have the medical reports of Dr Bowles explained to him.
The plaintiff disagreed that he had the earning capacity in November 1998 that Mr Wang asserts he had. He said that he did not have the skill to perform the duties in question and he said his poor English was a further problem. The plaintiff said that he knew nothing about what the doctor said concerning his working capacity. He said that reports were not explained to him. Counsel for the defendant went through the doctors' reports by doctor with the same result.
It is difficult to determine whether the plaintiff was told of the contents of medical reports as they were received. Obviously it would be basic, given an English speaking client, but I have some concerns about whether this occurred in this case. On the other hand it is also difficult to conceive that a plaintiff would go to trial, or that solicitors would allow a plaintiff to go to trial, without him being fully informed about what was said against his case.
The plaintiff was referred by the defendant's insurers to Mr Brash. He said that he saw him on one occasion with an interpreter but he says the consultations were very brief. He failed to attend on one appointment because he forgot. On one occasion he declined to keep an appointment with Mr Brash because he said that Mr Brash had told him "he was not sick". He then said he did not go because he did not feel well. He did not ring up and tell Mr Brash of the position. This was in August 2000.
The plaintiff said he saw Mr Brash in September because he was asked by his solicitors to go. He did not know that there was a court order to that effect. He did not want to see Mr Brash any more after that because he said that he was not allowed to ask any questions.
Counsel for the defendant cross‑examined the plaintiff in relation to his efforts at rehabilitation. He said that when he was requested by Work Focus to return to work following a plan he declined to do so because at the time he said that he was feeling a lot of pain in his arm. He had not had his elbow operation. He also had been suffering a lot of headaches. He did not connect well with the people at Work Focus and requested a change to another organisation.
He also said that the Work Focus interpreter was a person he could not understand properly. The plaintiff said his solicitors then suggested that he change organisations and attend at another rehabilitation centre.
It was put to the plaintiff that he changed from Work Focus to another rehabilitation centre because he did not like Work Focus telling him that he was able to go back to work. The plaintiff did not agree with this proposition. He said that he felt pain and that he was also concerned about his situation. He was then referred by his solicitors to Southern Rehabilitation where he met with Fran Smart. He started to see her in about October 1998.
The plaintiff's evidence seemed to be to the effect that he was not advised by Fran Smart that the defendant was keen for him to return to work and had work for him. The plaintiff complained about the efforts the defendant made to assist him. He was concerned about whether his duties were permanent. He said he was not taught any computer work. He was however given some assistance in doing telephone work which he did perform. He did some stocking of shelves for which he said that he did not need English. When asked whether he could work at the defendant's premises because there was no English spoken there he said that some of the customers spoke English.
From time to time the plaintiff winced in the witness box without looking at me. I noticed him doing it on three occasions during the five hours or so that he gave evidence. So far as one can judge he seemed to be in genuine discomfort from some unknown part of his skeletal frame. He was never asked about it.
Counsel for the defendant cross‑examined the plaintiff at some length as to his lack of cooperation with efforts made by various entities to reintroduce him to the work force. The plaintiff seemed to me to be elusive and I did have some concerns about his credibility. However there was no specific instance where he was clearly being untruthful.
The plaintiff was asked about a meeting on 15 December 1998 at the defendant's premises where there was an interpreter present in addition to Mr Tran the proprietor, his father, Mrs Tran, a Mr Honey and the occupational therapist Mr Atkins. There was also Ms Smart. The plaintiff conceded that as a result of the meeting that was convened at that place and at that time, it was agreed that he return to work for two days per week two hours per day.

When cross‑examined as to the lack of success of this proposal the plaintiff offered a number of reasons including the repetitive nature of the task, the fact that a fellow worker caused him to injure his arm and his lack of English.
The plaintiff was cross‑examined about the extent to which his English had improved following some English lessons that he undertook in early 1999. He conceded it had improved a little. He said that one of the difficulties of his return to work was that he did not do his duties properly in April 1999. He said that Mr Tran would not assist him with rehabilitation. His attempted re‑entry into the work force through the defendant ended in about June 1999 and plans were then made for the plaintiff to continue with computer and English classes. The plaintiff said that his time at the defendant's premises was unsatisfactory. Sometimes he did not have enough to do.
The plaintiff was cross‑examined about his familiarity with computers. He said that he had an old computer operated by his 12 year old daughter at home. He denied that he could scan photographs on it.
When asked whether he had attended all the English classes set for him in early 1999 the plaintiff said that he did not because he had pain. He appeared to contradict himself in his evidence. In relation to headaches he said that he suffered headaches two or three times a week, there was no set pattern. In spite of having many days when he did not have headaches he said that he took tablets every day on the advice, he said, of Mr Wang or Dr Stell.
The plaintiff gave evidence speaking in Vietnamese through an interpreter. This process was more than usually difficult both in the way the evidence was extracted from the witness and in the assessment of credibility and reliability. When an assessment is being made of the demeanour of a non‑English speaking, non‑Australian born non‑Caucasian witness, body language, facial and verbal expression and other sources of information are not very reliable indicators. Thus conclusions about the witness can be less confidently reached than in other cases.
It is quite clear that the plaintiff suffered significant injuries and I think he does have some sort of discomfort. I think it is also likely that he has headaches but of course this will be further verifiable having regard to the medical evidence. But I did get the impression that his efforts at a return to work were less than fulsome. On the other hand of course he is a person raised in Vietnam who is married with three little children. The difficulties he has had coming to this country could hardly be imagined by a person like myself. His marketability as a worker is significantly dependent upon his physical fitness. He also needs to be able to speak English unless he is employable in a place where English is not spoken. There were some times when I thought he was unconvincing in the witness box but generally he did not come over too badly given the sorts of difficulties to which I have referred in these reasons so far.
The plaintiff's wife was called as a witness. She seemed to be a pleasant young Vietnamese woman who gave her evidence in English. She said that prior to the accident the plaintiff was a very good husband and father. He was gentle with her and the children. He took care of the family. He did not shout at her. He did everything for her. He did a variety of household tasks which she described.
After the accident Mrs Ta said that the plaintiff was quite different. He became angry with her. He started shouting at the children. He made them scared. He did not do things around the house. A large tree had to be cut down because of the leaves it deposited on the lawn and the plaintiff's inability to do his normal cleaning. Now the plaintiff's son does the cleaning of the gutters.
Mrs Ta said that she used to take the plaintiff to the doctors and to TAFE and to rehabilitation but this became extremely difficult because she had to wait for long periods in the car which was far too hot in summer and too miserable in the winter. The children waited with her in the car as well. It was most difficult. She said her husband would no longer put out the large rubbish bin. She massaged him on two or three occasions per week and had done so since the accident except when they are having a fight. Mrs Ta estimated that she does between 15 and 20 hours per week helping her husband that she did not previously have to do. She now buys vegetables whereas previously she grew them. Her son does most of the other gardening nowadays. Mrs Ta's evidence was not disputed by counsel for the defendant.

Medical evidence

The plaintiff's GP, Dr Rhys Nguyen, gave evidence. He first saw the plaintiff on 27 August 1998, however the plaintiff had attended the practice from about 26 May 1993.
The first record of the plaintiff having complained of headaches after the accident was on 2 May 1998, two days post‑accident. The only previous complaint of headache, was recorded on 3 April 1995. Following the accident the plaintiff was prescribed Panadeine Forte, and Inderal which is for vascular or migraine type headaches. This was on 2 May 1998. Other complaints of headaches were made by the plaintiff on 8 and 19 May, 14 August, 2, 15, 20 and 24 September 1998.
Counsel referred to exhibit 10 and the numerous progress medical certificates and other documents generated by Dr Nguyen. On Exhibit 10.12, which is the first certificate dated 27 August 1998, Dr Nguyen recorded a complaint of muscular neck pain and right arm pain and gave the plaintiff four weeks off work. Working through the certificates the reference to the frequency of the plaintiff's complaint of headache and the sorts of medication prescribed by the witness can be noted.
Dr Nguyen was taken to his letter of 12 June 2000 reproduced in Exhibit 10, p61. This was a letter to the defendant's insurer in response to their's dated 29 May 2000 which became Exhibit 11. The insurer's letter contained a list of some 13 questions which Dr Nguyen answered.
The insurer's questions were in the nature of seeking explanations for some of Dr Nguyen's progress medical certificates that he had issued for the plaintiff. Question 1 was as follows:
"For the certificates dated 09/2, 23/02 and 23/03 and 5/05 2000 please state the history relating to Mr Ta's change in capacity? What factors significantly affected his condition to result in his total incapacity?"
Dr Nguyen's response was as follows:
"For the certificates dated 09/2, 23/02 and 23/03 I stated that he was totally unfit for work for one day due to acute worsening of his traumatic vascular headache. This headache is invariably a result of an acute aggravation of his right elbow pain and leads to acute dizziness. On these occasions, Mr Ta feels unwell and unsteady on his feet. Consequently he was not able to catch multiple buses to work and had to be brought in by his wife.
On 5/05/2000 I certified him totally unfit for work as he was not able to cope with his frequent headaches and dizziness. Furthermore the types of work that I considered suitable for him were not available. However following careful review on 15/5/2000 in conjunction with Ms Fran Smart, I certified him fit for restricted return to work from that date until 15/6/2000 pending the availability of suitable employment. This was done deliberately to show his very restricted fitness for work as his pain syndrome and vascular headache were incapacitating. Unlike the various contradicting reports I received, I do not believe Mr Ta is fit for his pre‑disability duties."
Dr Nguyen's attention was then drawn to the second last paragraph of his letter where he made the following comment:
"Insurance specialist opinions are an ongoing source of concern, which receive coverage in both local and national GP literature. It is my policy to advise all patients to take in an eye witness when examined by insurance specialists or even ask permission to tape their consultation. Not surprisingly, taping of a consultation was never allowed and more frequently than not an eye witness is dismissed."
Dr Nguyen agreed that he has strong views about these issues and he admitted to having a "political agenda".
Dr Nguyen said that he referred the plaintiff to Mr Wang because of the plaintiff's persisting symptoms in his elbow; this was in September 1998. Surgery was performed and small pieces of bone were removed. Dr Nguyen said that he spoke to Mr Tran from the defendant company on a number of occasions but that he was very uncooperative and in his view very reluctant to assist the plaintiff in performance of light duties. In his progress medical certificate of 23 May 1999, reproduced in Exhibit 10.28, Dr Nguyen wrote, having certified the plaintiff totally unfit for 12 weeks, that "alternative duty not being satisfied. Employer's lack of contribution to rehabilitation process." Dr Nguyen agreed that he had certified the plaintiff as being totally unfit from about April 1999 to the present date.
In essence it was put to Dr Nguyen that his views were very much in sympathy with the plaintiff and that he was hostile to the stance of the insurer. On the face of it this may be a valid observation. His opinions need to be assessed in that light.
Dr Nguyen spoke well in the witness box and obviously is a caring medical practitioner. I did have some concerns about his independence. He is clearly the plaintiff's general practitioner and not an independent expert. He is sympathetic to the plaintiff's predicament and is doing his best to help the plaintiff. He seemed to be saying that because there was no work available at the defendant's premises which the plaintiff was physically capable of doing, therefore the plaintiff was totally unfit. In the same breath however, he appears to be saying that the plaintiff does have some earning capacity to perform light duties. I think that the plaintiff must have at least had some such capacity.
The plaintiff called Alan Wang who was his treating orthopaedic surgeon. He saw the plaintiff in September 1998, some five months after the accident. Mr Wang's reports appeared at Exhibit 10.64‑10.85.
Upon his examination of the plaintiff Mr Wang reported on 17 September 1998 that the plaintiff:
"has a 30 degree fixed flexion deformity with terminal restriction in flexion. There is 75 per cent supination, almost full pronation. Examination of the right wrist shows no swelling, but tenderness over the distal radio ulnar joint and ulnar side of the carpus. He has 70 degrees of extension, but only 40 degrees of wrist flexion."
Mr Wang explained these terms by demonstrating the movements in the witness box.
In his report of 27 October 1998 at Exhibit 10.68 Mr Wang dealt with the surgical procedure the plaintiff underwent at St John of God Hospital on 27 October 1998. The operation was by arthroscope and involved the removal of a loose piece of bone from the elbow. Arthroscopy proved unsuccessful and a small lateral arthrotomy was performed to enable removal of the bone.
In his report of 18 November 1998 at Exhibit 10.7 Mr Wang noted that the plaintiff had significant pain and stiffness in the elbow and wrist which required ongoing treatment. Mr Wang also felt it was appropriate that the plaintiff begin rehabilitation and his progress medical certificate of 26 November 1998 reflected that view (Exhibit 10.72).
In his report of 26 November 1998 at Exhibit 10.73 Mr Wang spoke about having read the report of Ms Fran Smart, a rehabilitation consultant with an organisation called Southern Rehabilitation being a report reproduced at Exhibit 10.104 and following. Ms Smart listed a number of alternative duties that she felt the plaintiff could be trained to carry out. These duties included answering the telephone, writing orders, entering orders into a computer, printing invoices and picking slips, cashier operating cash register, packing food items into plastic bags, pricing items and re‑stocking shelves. Mr Wang agreed that it was appropriate for the plaintiff to return to a work programme and English tuition. He also felt that the duties referred to by Ms Smart were all appropriate on a part‑time basis at that stage.
In his progress certificate dated 15 January 1999 (Exhibit 10.76) Mr Wang said that the plaintiff:
"will need continued light duty (no lifting more than 10 kg). Will need vocational assessment. Query redeployment in permanent alternative employment."
In his report of 20 January 1999, reproduced at Exhibit 10.77 being a letter to the plaintiff's general practitioner, Mr Wang said:
"Mr Ta is a little difficult to assess, he reports ongoing symptoms in both the lateral aspect of the right elbow and dorsal aspect of the wrist. There are problems with him even doing light duties at work. He says it is even difficult for him to push cans on a shelf.
Mr Ta is reporting more severe symptoms than I would have expected from his wrist injury and following his elbow surgery."
Mr Wang went on to say that he felt an objective assessment by an upper limb specialist hand therapist would be appropriate and he also felt that the plaintiff might benefit from referral to a pain management specialist.
In his report of 12 February 1999 (Exhibit 10.79) Mr Wang noted the appearance of arthritic changes in the area of the plaintiff's elbow joint. He states that:
"Mr Ta will have ongoing lateral sided elbow pain and stiffness, and short of doing a complete excision of the radial head I cannot think what else surgically might be done to help him."
Mr Wang explained that although excision of the radial head might help with symptoms of pain there is a loss of function and weakness. Mr Wang wrote:
"At this stage I think Mr Ta's work rehabilitation programme is very important. I would suggest a realistic long term goal as a clerical type position and an English upskilling course will be important."
In his evidence Mr Wang said that the plaintiff's arthritic symptoms would be likely to deteriorate with time. In explanation he said that his estimate of the period of time in his "long term goal" advice was about 12 months.
In cross‑examination Mr Wang said that following the surgical procedure to which I have referred he had expected the plaintiff's symptoms would be alleviated. The plaintiff's symptoms improved but only briefly. Mr Wang said that the plaintiff had a capacity to do light lifting and he also agreed that the plaintiff's complaints of loss of motion can be subjective. In respect of the suggestion that the plaintiff undergo surgery by way of excision of the radial head Mr Wang explained that apart from causing improvement in pain but also weakness, the procedure can cause an increase in wrist pain because of the different dynamics of the movement of the arm. His view was that because of the age of the plaintiff it would be reasonable to adopt a more conservative approach.
Mr Wang's attention was drawn to his comment in his report of 21 May 1999 at Exhibit 10.81 where he wrote:
"Mr Ta has arthritic changes in the radio capitellar joint subsequent to his radial head fracture and for this reason he may have long term pain and restriction in elbow extension. This will leave him unable to undertake heavy manual work in the long term."
Mr Wang was an impressive witness and not much of what he said was disputed. His view at the end of the day was that the plaintiff should work hard at his spoken and written English and improve his computer skills so as to contemplate a long term clerical sort of position. He appeared certain that the plaintiff would not be able to undertake heavy manual work in the long term.
The next witness called by the plaintiff was Dr Sang, who was not a medical doctor but a registered psychologist. He wrote a report dated 30 May 2000 which is reproduced at Exhibit 10.94. His Curriculum Vitae became Exhibit 12.
Dr Sang saw the plaintiff on a large number of occasions the dates of which are listed in his report. The admissibility and weight to be given to this evidence was very much contested by counsel for the defendant. Some of the facts upon which Dr Sang based his opinion were not the subject of evidence and these were itemised by counsel for the defendant during an objection to the admissibility of the report. Dr Sang spoke about the plaintiff suffering from depression which of course is a medical diagnosis which he is not qualified to make. It was not entirely clear what use could be made of Dr Sang's evidence. He seemed to be of the view that the loss of ability to do heavy work and hold down a job and provide income for the family was a particularly grievous loss for a person of Vietnamese origin, especially in a new country. I am not convinced that that is so. However it is fairly much a matter of common knowledge, I think, that in many families, no matter what the ethnic background, the "man of the household" who had the role of the "breadwinner", is likely to feel a loss of self‑esteem with the loss of earning capacity. I do not need expert evidence to tell me that.
Whether the plaintiff has been affected by these matters to an extent where he suffers from a depressive illness is another question. Psychiatric evidence would be required to establish that and there was no such evidence adduced on behalf of the plaintiff in this case.
Interestingly, Dr Sang stated that he was aware the plaintiff had taken his family to Vietnam for a holiday in about 1997. This was to see his parents and especially his ill father. The family stayed there for about six weeks.
The plaintiff adduced evidence from an occupational therapist who specialises in assessment of hand injuries. Judith Wilton provided a report, undated, which is reproduced at Exhibit 10.100‑103. In her recommendations Ms Wilton states:
"I note deficits in joint range of motion in the right elbow, however, believe these are not within a range that would have significant vocational and functional implications. Of greater concern is the deficits in strengths in both grip and pinch, and these may be in fact limited by pain, but also by the disuse associated with initial injury and long period of rehabilitation."
…
Further,
"Based upon the findings of this evaluation, vocational tasks would be extremely limited. Performance in this test demanded less than 45 minutes stress to the right upper limb, and this resulted in significant increase in pain and associated headaches. Therefore, vocational tasks will need to be light, principally depending upon the left upper limb, with a slow graduated increase in force applied to the right upper limb."
The defendant called evidence from a consultant neurosurgeon named Mr Harold Schaeffer who is employed by an organisation called MLCOA ‑ Perth Medico Legal Consultants.
Mr Schaeffer is a retired neurosurgeon who, obviously, now earns income as a professional witness.
Mr Schaeffer produced two reports, dated 21 December 1999 and 13 April 2000 (Exhibits 13A and B).
In his first report Mr Schaeffer emphasises that he is only speaking about the plaintiff's presentation from the perspective of a neurologist. As he says in his summary, fractures of the elbow and wrist do not fall within his field of medicine.
In his summary and assessment Mr Schaeffer states:
"…I point out that his strong tendency to over‑react to gentle palpation and movement of the right upper limb as well as the non‑organic hypo aesthesia is strongly indicative of the existence of a marked non‑physical element compounding these injuries."
Mr Schaeffer interpreted hypo aesthesia as lack of feeling.
Mr Schaeffer went on:
"Also, from the viewpoint of my speciality, there is no evidence to suggest that he has suffered a head injury in the true sense of the expression and there was no history of altered consciousness. I consider that his headaches and dizziness represent symptoms of a non‑physical nature, the sole possible medical explanation for the headaches is that they are ordinary tension headaches."

In his answers to specific questions in the report Mr Schaeffer is clearly of the view that there are a number of inconsistencies and discrepancies in the plaintiff's case which make his complaints suspect. Mr Schaeffer basically gave the plaintiff a neurological clearance. In his evidence in cross‑examination, Mr Schaeffer said that he did not consider there was much difference between a history of a patient blacking out, getting dizzy or not being able to see properly. He said the significant question is whether there was any concussion. He felt that the plaintiff's ability to give an account of what occurred tended to contra indicate concussion. Mr Schaeffer said that he found no evidence that the plaintiff had suffered any significant head injury or brain injury although perhaps a minor scalp injury might have occurred. Mr Schaeffer's view was the plaintiff's headaches were of a tension variety and not migrainous. He said tension headaches are very common in the community and quite reversible and they are more psychological than physical. In a nutshell Mr Schaeffer excludes serious head problems for the plaintiff. He felt that the plaintiff suffered no serious neurological injury at all.
I thought Mr Schaeffer was quite an impressive witness even though he is "for sale" and his conclusion was not surprising in all the circumstances of the case.
Dr Michael Bowles is an occupational physician who was called to give evidence on behalf of the defendant. He produced three reports dated 28 July and 29 November 1999 and 3 April 2000 which became Exhibits 15A‑C inclusive. Dr Bowles saw the plaintiff twice being approximately the dates of the first two reports.
Dr Bowles said he had not seen the plaintiff since November 1999.
In Dr Bowles' view there were inconsistencies in the plaintiff's presentation which he says strongly supports the proposition that there are non‑physical reasons for the plaintiff's symptoms. Dr Bowles keeps himself very much up‑to‑date with international literature on that very issue.
In his first report Dr Bowles described the examination of the plaintiff. He stated:
"Examination of the back was difficult because he stated it was stiff and sore and he said that my previous examination of the neck had made him feel uncomfortable and was therefore reluctant to have it examined."
Upon examination of the plaintiff's arm and after describing the arm's dimensions and measured function, Dr Bowles said:
"He had a glove distribution of light touch loss in the right arm and attempted muscle testing was unsuccessful due to exclamations of pain and shaking in the muscles. I was unable to test his reflexes."
Dr Bowles then concluded his examination by saying:
"Overall I felt there was a strong functional component to his presentation and it was impossible to gauge any true underlying disability, particularly in relation to residual elbow movement. I note the hand assessment report by Judith Wilton was limited by the pain."
As to the plaintiff's prognosis Dr Bowles said:
"Prognosis for this case in terms of achieving a return to work in any form would have to be extremely guarded. Given the length of time since his injury, and the continuation of his perceived significant disabilities and the failure of the return to work programme, it would suggest that a resolution of this case in terms of returning Mr Ta to paid employment will be difficult."
Dr Bowles went on to say that he did not feel there was any specific medical treatment required for the plaintiff's neck, back or arm. He felt that elbow surgery in relation to arthritis was many years away. As to the plaintiff's current work capacity Dr Bowles said in his report:
"It is my opinion Mr Ta has a work capacity. Although he has strenuous complaints of pain around his arm, neck, back and his headaches, published medical papers have noted that injured parties are poor judges of their own work ability, particularly in relation to pain and exercise. There was also a large functional component to his examination and I believe there is quite a significantly better function than Mr Ta was presenting today.
He will have some restrictions in his right arm in relation to the fracture and a subsequent healing process at the elbow, but I believe Mr Ta is suitable for some light store activities and as a delivery driver. I would be reluctant to see him lifting more than 10‑15 kg with the right arm, but could use a bilateral arm lift for such weights.
I do believe Mr Ta could undertake any form of alternative duties on a full‑time basis, given some reasonably minor restrictions on the lifting for the right arm. The range of movement reduction in his right arm is his only identifiable disability and I believe that there is an underlying, full‑time capacity for employment in all ranges with the exception of heavy manual labour and repetitive right arm tasks involving such activities as hammering or holding heavy machinery.
As noted above, the prognosis for this case is poor. Mr Ta's perception of his disability and his presentation of pain does present significant psycho social yellow flags as well as the large functional component to his examination."
Dr Bowles saw the plaintiff again at the end of November, some four months later, and his report of the 29th describes similar complaints, findings on examination and conclusions. In that report Dr Bowles says:
"It is my opinion that Mr Ta is fit to return to his pre‑accident occupation as a storeman. I believe this needs to be taken on a graduated return to work basis, given his current presentation. I would also recommend the dovetailing of a graded exercise programme aimed at increasing Mr Ta's general aerobic fitness and conditioning as well as specific upper limb girdle strengthening exercises.
I would commence the storeman work on four hours per week, four hours per day, three days per week (sic) with no lifting greater than 10 kg with the right arm. This should be increased to his normal hours over a 6‑8 week period.
It is also my opinion Mr Ta is fit to return to alternative employment as a clerk, gardener, courier, service station attendant, security guard, cleaner, light store person or parking attendant."
In relation to the plaintiff's wrist Dr Bowles said that he did not believe he had sustained a permanent residual disability. In regard to the right elbow he estimated the plaintiff had sustained a 7 per cent permanent residual disability "in relation to the full and efficient use of his right arm at or above the elbow".
Dr Bowles did not see the plaintiff again but produced another report at the request of the defendant's solicitors dated 3 April 2000 and he made the following observation on the second page:
"In regard to his incapacity and disability I believe that significant contributing factors are of a psycho social, environmental and work related nature. That is to say that I do not believe that the underlying impairment or injury per se is a significant determinant of his ongoing inability to return to full time work but more so these other intangible factors. In the true sense of the word disability is not a medical determination and is influenced by these intangibles and other factors and is not necessarily proportional to any underlying injury or impairment. In that regard, given the strong non‑organic component to the examination, these are the factors that contribute to the expression of his current disability and incapacity.
This is not to belittle the injury or the problems that he has had, particularly in relation to right elbow. There can be no questioning about that injury. However the associated disability and incapacity are also influenced by other non‑physical factors."
In general Dr Bowles' opinion was that the plaintiff had significant retained earning capacity but that the length of his absence from the work force required a gradual reintroduction. In his report of 29 November 1999 he said that he felt Mr Ta was fit to return to "alternative employment as a clerk, gardener, courier, service station attendant, security guard, cleaner, light store person or parking attendant".
Dr Bowles said that his description of store person's duty as "light" meant that he felt the amount of weight to be lifted by the employee would be between 2 and 10 kg but that any return to work programme would be commenced conservatively. Dr Bowles had an optimistic view about the plaintiff's prospects to return to the work force and counsel questioned him closely as to his conclusions concerning the plaintiff's prospects of rehabilitation. Dr Bowles was occasionally abrupt and had a mildly hostile tone but stuck to his opinions. He was asked by counsel whether a person's qualifications to fulfil an employment role were a consideration in his certification of the person's ability to carry out that role. It was suggested to him that he placed insufficient weight upon the person's suitability for the position apart from physical capability. At T277 he answered:
"I guess initially you are trying to identify some capacity that the person may or may not have, look at some options and then assess those options as suitable in terms of their education, their cultural backgrounds, their barriers and those sort of things. I guess that's where most of the work gets deferred to the vocational rehabilitation providers who have the time and that allocation to pursue those options and certainly the person has to have some incentive or motivation to do it. You can't make them do something that they don't want to do and if they identify something they want to do then that's the best chance of success. If they had decided they wanted to do some training to become a security officer and was physically suitable you would say 'yes let's go down that track' because that's something that we all agree that he can get to, setting a goal that all parties feel is achievable."
Dr Bowles' views about the plaintiff's capacities were then further tested by specific aspects of the duties of certain occupations being put to him. In general Dr Bowles' opinion was that the plaintiff was capable of doing a large number of tasks but the heavy work would be beyond him. Dr Bowles confirmed that he was not of the view the plaintiff had sustained a permanent residual disability to his writs. Dr Bowles' attention was then drawn to his remarks in his report dated 3 April 2000 where he said:
"In regard to his incapacity and disability, I believe that the significant contributing factors are psychosocial, environmental and work related in nature. That is to say that I do not believe that the underlying impairment of injury per se is the significant determinate of his ongoing inability to return to full time work but more so these are the intangible factors."
He then explained that the intangible factors included motivation and performance issues. In his concluding remarks Dr Bowles said that he never questioned the fact that the plaintiff had pain but was much more interested in the way the plaintiff dealt with it.
Dr Bowles was a highly qualified and impressive witness although a little abrupt in his style. He appears to have allied himself with the body of opinion upon which the defendant relies and his independence is, in a sense, equally as questionable as some of the witnesses called by the plaintiff to whom I have already referred.
The plaintiff called evidence from Dr Ric Stell who is a neurologist who saw him in September 1998. The plaintiff was referred to Dr Stell for assistance in respect of his problem with headaches. Dr Stell's reports appear at Exhibit 10.86‑93.
Dr Stell's opinion was that the plaintiff was suffering from post traumatic vascular headaches "certainly as a result of irritation of soft tissue structures in the upper cervical spine".
He injected the region with Depo‑medrol and Xylocaine and he prescribed Orudis.
The injections gave the plaintiff relief from his headaches for a period of only one month. Dr Stell's view was that the limited response indicated the injections were a failure as a pain relief measure. This was so because, by reason of undesirable side effects, repeat injections cannot be administered within at least 3‑4 months.
In his report of 2 June 2000 Dr Stell observed that with the failure of the occipital nerve injections to provide substantial relief and with a lack of response to non‑steroidal anti‑inflammatory medication, he felt there was nothing to be gained by further consultation. He also did not think further injections would be beneficial. He suggested the plaintiff be trialed on a course of Deseril or, alternatively, referred to a specialist pain clinic. At the end of his report Dr Stell said:
"With regard to Mr Ta's capacity to work as a storeman; if, as was the case in July 1999, he is having headaches every 2‑3 days, each lasting 1‑2 days, it would seem unlikely that he would be able to continue to work, notwithstanding any problems that he has with the right upper limb. As mentioned however, it is possible that he may respond to other anti migraine medications which could be prescribed by his general practitioner. … Having said this, there were no other objective neurological signs to indicate a neural injury, ie co‑ordination, reflexes and sensation were normal bilaterally."
Dr Stell explained that refractory headaches are headaches that do not respond to usual treatment.
Dr Stell was a good witness whose views were not controversial. He did not seem to be able to provide anything useful to help the plaintiff. He was unable to find any cause for the plaintiff's headaches and is not really able to provide much relief. Obviously he accepts the plaintiff's complaints without question. And it is noteworthy that the plaintiff was prepared to undergo the procedure of injections although there was no evidence about whether this was particularly uncomfortable or not. The plaintiff apparently had relief for a month but then his headaches came back.
Dr Stell made some recommendations concerning alternative medication for the plaintiff's vascular headaches and, failing any benefit, he suggested the possibility of a referral to a pain clinic. There is no evidence that any of these steps were taken by the plaintiff. Dr Stell commented that there were no physical signs to the plaintiff's complaints and he found no objective neurological signs which could preclude the plaintiff from working.
The final witness relied upon by the defendant was Mr Stewart Brash, an orthopaedic surgeon, who gave evidence de bene essay on 1 September.
Mr Brash is a highly qualified expert in his field who has given evidence in this Court on enumerable occasions. He produced three reports being Exhibits 1, 2 and 3 dated 23 November 1999, 4 April and 1 September 2000.
The plaintiff was referred to Mr Brash by the defendant's insurers.
In his first report Mr Brash said that he had no doubt the plaintiff had residual disability in the right elbow and probably some weakness. He assessed that the plaintiff had a permanent residual disability in the right elbow at "10 per cent loss of function of the whole of the right arm". Mr Brash said in his report:
"I do believe that if he were so motivated this patient could do a lot of work. Although he has a disability I have seen people with similar disabilities go back to the full activities of daily living, including heavy lifting, etc."
With respect to the plaintiff's right wrist Mr Brash was not able to see any evidence of pathology or significant disability.
Similarly Mr Brash did not note any disability in the cervical spine nor could he find any orthopaedic reason for the plaintiff having headaches. He felt there was no disability in the lumbar spine.
In short Mr Brash's opinion, similar to that of Dr Bowles, was that the plaintiff presented with symptoms which were not medically explicable and which had a high "functional" component. Mr Brash said that he was not "able to reconcile the patient's severe, constant, widespread symptoms with the underlying pathology". His view was that the plaintiff could work full time in a job that does not place too much strain upon his right elbow.
In his second report dated 4 April 2000 Mr Brash expressed the belief that the plaintiff was:
"fit to work full time as a clerk, gardener, courier, service station attendant, security guard, cleaner, light store person or parking attendant. He can do full time work as long as he does not place the maximum strain upon the right elbow. A lot will depend upon this patient's motivation to return to work."
Mr Brash provided a final and lengthy report dated 1 September 2000. Mr Brash described his examination of the plaintiff on 1 September and concluded that the plaintiff's presentation was basically the same as it had previously been. He describes the plaintiff's symptoms which are relatively unchanged and then states:
"From the symptoms one concludes that this patient has not really been helped by the passage of time, the treatment to date and stopping work. This is not the course one would expect following a fracture of the radial head. The elbow is not a weight bearing joint."
Mr Brash then carried out a number of quite subtle tests and made some observations based on his experience which reinforced his conclusion that there was evidence the plaintiff was engaging in abnormal illness behaviour. He was also complaining of pain on passive movement which was anatomically inconsistent.
At p7 of his report Mr Brash states:
"The self reporting and self assessments of pain without pathological corroboration is a poor measure of disability and impairment. Despite lack of evidence and evidence to the contrary many clinicians continue to rely on their patient's self reports of pain and disability when recommending return to work dates, assessing work capacities and rating impairment levels.
Work capacity; as stated above I believe this patient is fit for full time work. The only limitation I would place upon this man is that he not do a lot of heavy lifting with the right arm alone. There is no limitation to his standing or bending. I cannot see any physical reason to why this patient should not be driving a car. I've seen people with fractured radial heads like the one Mr Ta has get back to full labouring work."
In his evidence in chief Mr Brash explained his various conclusions he made and conclusions he reached in his reports. He had concerns about the plaintiff's complaints of disability in his elbow especially when as he put it, "wherever you touch this gentleman from the arm down…he was tender, exquisitely so". Mr Brash felt that was "certainly not‑anatomical". That was one of the reasons why Mr Brash had commented upon the plaintiff complaining of "generalised tenderness" with "superficial non‑anatomical loss of sensation to touch".
Concerning the plaintiff's complaints about soft tissue injury to his neck and back Mr Brash was asked about the time lapse one would expect between trauma and the emergence of symptoms and he said at T20:
"You would have to have pain coming on within 12 hours. This is coming out of the work with human volunteers in whiplash experiments that the acute pain coming on must come on within 12 hours to be relevant. I accept the fact that if this loss of consciousness ‑ the patient didn't wake up with the pain later on ‑ but this gentleman had no loss of consciousness and therefore I would have expected this patient's neck and back pain, if he had suffered…a soft tissue injury, I would have expected the appearance of pain within 12 hours."
Mr Brash conceded the possibility of masking of injury by other injury but not such as to explain the passage of lengthy periods of time before the emergence of symptoms.
Mr Brash emphasised the fact that the joint with which the plaintiff was having difficulty, namely the elbow, was not a weight bearing joint. Consequently there is less pain and disability and the effects of any early sign of arthritis are less significant.

The plaintiff formulates a claim for past economic loss in the total sum of $50,793.28 from which workers' compensation will need to be deducted but to which interest must be added.
The defendant's calculation is that an allowance of $5,470 should be made for past loss of earnings.
The calculation asserted on behalf of the plaintiff is based upon the award rate for a store person.
The defendant relies on the evidence of pre‑accident earnings and the pattern of the plaintiff's employment since 1993.
The defendant placed weight on the fact that the only period of full time employment of any length prior to the accident was in the year 1995. The defendant asserted that because the plaintiff did not continue with that full time employment after that year then there can be no assumption made that he would have continued in the employment he had at the time of the accident on a full time basis for any particular period of time.
On the other hand the evidence is that the plaintiff was enthusiastic about his employment and was glad of the financial relief it would bring to the family. I think the fact needs to be borne in mind that with the passage of time and the accumulation of experience the plaintiff was likely to have improved as an employee but for the accident. He worked for only three days prior to the accident. The question is whether he would have worked for the two years since on a full time basis. I think it is probable that he would have. I am prepared to allow the amount in the sum claimed by the plaintiff of $50,793.28. I do not know what sum was received by way of workers' compensation paid prior to trial. The plaintiff would be entitled to interest at the rate of 3 per cent upon the difference if any.

Past loss of superannuation contribution

Similarly the plaintiff is entitled to an allowance for past loss of superannuation and I am prepared to adopt the method of calculation advanced on his behalf being 7 per cent of the past loss of earnings less 30 per cent for the Jongen discount to which interest at 3 per cent should be added.