Taylor v Ellis Management Services Pty Ltd

[2012] VCC 1864

IN THE COUNTY COURT OF VICTORIA

AT GEELONG

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No. CI-11-04989

ERIC TAYLOR	Plaintiff
v
ELLIS MANAGEMENT SERVICES PTY LTD	First Defendant
and
JOHN HOLLAND RAIL PTY LTD	Second Defendant

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Geelong
DATE OF HEARING:	22, 26 and 28 November 2012
DATE OF JUDGMENT:	20 December 2012
CASE MAY BE CITED AS:	Taylor v Ellis Management Services Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2012] VCC 1864

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION
Catchwords:            Serious injury – right arm – pain and suffering damages only – whether impairment satisfies the “narrative test”
Legislation Cited:     Accident Compensation Act 1985, s134AB(38)(a) and (b)

Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Church v Echuca Regional Health (2008) 20 VR 566; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242

Judgment:                Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C W R Harrison SC with Mr A E A Macnab	Slater & Gordon Ltd
For the Defendants	Mr R K Meldrum QC with Ms S Manova	Wisewould Mahony

HIS HONOUR:

Introduction

1 By way of Originating Motion dated 18 October 2011, Eric Taylor (“the plaintiff”) seeks leave, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”), to bring common law proceedings to recover damages for injury to his right arm suffered during the course of his employment with Ellis Management Services Pty Ltd (“the first defendant”) on or about 25 February 2005 (“the injury”).

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

3       The plaintiff, his general practitioner, Dr Hassan, and the partner of the plaintiff, Fay Coburn Steel, all gave evidence and were cross-examined.  Both parties tendered various documents.[1]

[1]See Annexure “A”

Relevant Legal Principles

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

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

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

“serious injury means─

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

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

7       In order to succeed, the plaintiff must prove, on the balance of probabilities, that:

(a)“the injury” was suffered arising out of or in the course of, or due to the nature of his employment, with the first defendant on or after 20 October 1999;[3]

(b)“the injury”, with its resulting impairment, must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]

(c)“the consequences” to the plaintiff of “the injury” in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … [can be] fairly described as being more than significant or marked, and as being at least very considerable”.[5]

The test for “serious” is sometimes referred to as the “narrative test”.

[3]See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors  v Podolak (2005) 14 VR 622 at [11]

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

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

8       In determining the application, the Court:

(a)must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury”.  These can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[6]

(b)must make the assessment of “serious injury” at the time the application is heard;[7]

(c)must give reasons which are as extensive and complete as the Court would give on the trial of an action, and in so doing, disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application;[8]

(d)notes that it has been asserted that the question of whether an “injury” satisfies the narrative test is largely a question of impression and value judgment.[9]

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

[7]See s134AB(38)(j) of the Act

[8]See s134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566 at [89] – [92]

[9]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at [67]

The Issues

9       Senior Counsel for the defendants informed the Court that essentially, the issues were whether the consequences of any impairment satisfy the narrative test – a so-called “range case” – and also a “disentanglement” issue arose in relation to the role any neck symptoms played in the presentation of the plaintiff.[10]

[10]T 8, L6-12

The Evidence of the Plaintiff

10      I was informed by Junior Counsel for the plaintiff during his opening that the plaintiff had a limited capacity for reading and writing, as he left school after completing Year 7, after which he travelled around various parts of Australia with his father and brother.

11      The plaintiff initially affirmed an affidavit on 23 May 2011.[11]  That affidavit was re-affirmed on 15 November 2012, with some minor handwritten amendments.  It is noted that the reaffirmation of such affidavit was after the contents had been read to him.[12]

[11]See Exhibit 2 at pages 1-11 PCB

[12]See Exhibit 2 at pages 41.1 – 41.11 PCB

12      The plaintiff also affirmed a further affidavit (after the contents were read to him) on 15 November 2012.[13]

[13]See Exhibit 2 at pages 41.12 – 41.14 PCB

13      By way of his reaffirmed affidavit on 15 November 2012, the plaintiff gave the following pertinent evidence:

·        He is a forty-four-year-old man who has been in a defacto partnership with Ms Fay Steel since he was eighteen years old.  There are two stepchildren, both of whom are independent. 

·        He left the Geelong East Technical School after completing Form 1, and then travelled with his father throughout Australia.

·        Prior to commencing employment with the first defendant, he had been employed in the following capacities:

–      in 1985, he worked in a pinball parlour in New South Wales and his employment duties included cleaning the parlour and maintaining machines and handing out change;

–      in 1987, he moved to Victoria and worked for the Ford Motor Company as a machine operator at the casting plant in Corio;

–      in 1988, he worked as a garden labourer for the Shire of Corio doing landscaping and garden maintenance (involving mowing lawns and rubbish removal);

–      between 1988 and 1989, he returned to working as a machine operator with Blackwell IXL;

–      he then worked as a car detailer with Winter and Taylor Pty Ltd between 1989 and 1990;

–      his next job was with P & O Cold Logistics, where he worked between 1997 and 2000 performing general stores duties which included packing goods, dealing with incoming goods and despatch.  When working at P & O Cold Logistics, he injured his right wrist when he dropped a box on it and was off work for about a week, after which he returned to work on light duties wearing a wrist brace.  Such light duties extended for about three weeks, after which he returned to full duties with no difficulties.

–      between 2000 and 2004, he had several short-term jobs, including working as a textile worker with L M B Williams, machine operator with J H Stevenson, and as a traffic controller at the Avalon Air Show.

·In 2001, he first worked as a rail labourer when employed by a labour hire company, Online Personnel.  He describes the work as very “physical and laying and repairing tracks for railways”.

·In 2005, he was employed by the first defendant at a site in Docklands installing a new rail line under the control of John Holland Rail.

·He describes the onset of “the injury” in the following terms:

“16    On 25 February 2005 I was asked by the John Holland site foreman, whom I knew as ‘Whitey’ to use a Vibra tool to compact screening beneath the sleepers.  I had never used one of these machines before. 

17     I found that it was a very difficult machine to use and that my right arm really ached.  It was harder on my right arm because all the weight was going through my right hand and arm. 

18     On my way home from work that day I noticed that my right arm was very sore and the fingers on my right arm were tingling. 

19     I returned to work on Monday 28 February 2005 and told Whitey that the Vibra tool had caused pain in my right hand and arm, and he responded by telling me to get on with it.”[14]

[14]See Exhibit 2 at pages 41.3 – 41.4

·During that Monday, he avoided the Vibra tool and performed jobs with the hand borer and laying plates on the sleepers.  Even doing this “lighter work” he found he was losing grip with his right hand.

·He observed that on his way home that night, his right forearm and wrist were very sore and swollen, with his hand and fingers “purple”. 

·That night, he attended a doctor at the Medic Aid Family Clinic in Geelong and a Dr Haque gave him a WorkCover Certificate for some time off work and prescribed Voltaren Rapid.

·He again attended Dr Haque on 3 March 2005, at which time she prescribed Panadeine Forte and gave him more time off work.

·He underwent nerve conduction studies undertaken on 3 and 7 March 2005 and was advised that such test revealed that he suffered from carpal tunnel syndrome.

·Because of ongoing symptoms, he was referred by Dr Haque to the orthopaedic surgeon, Mr Richard Page, who initially examined him on 19 April 2005 and was of the opinion that the plaintiff was suffering “ulnar neuritis”.

·A WorkCover Claim was submitted and accepted, and the plaintiff was off work for some time before returning to work as a flagman with John Holland in or about June 2005.  At that time, he worked a 12-hour nightshift for three days a week for about two weeks until that work ceased.  The plaintiff describes that work as “very light” and that he hardly had to use his right hand.

·On 6 March 2006, he underwent an ultrasound of his right elbow.

·On 27 August 2006, his then general practitioner, Dr Hassan, injected his right elbow with cortisone, after which there was some short-lived improvement.

·After review by Mr Page in November 2006, he recommended an operation on the right elbow, and on 15 January 2007, Mr Page performed an ulnar neurolysis.

The operation did help because the plaintiff got some feeling back in his little finger and the circulation in his hand and arm was better.  After the surgery, he was prescribed pain medication, anti-inflammatory medication and had physiotherapy.

·He was reviewed by Mr Page on 6 March 2007, when he complained of still getting pain on the outside of his right elbow.  In June 2007, he underwent an MRI scan of the right elbow, which he was informed revealed “tendonosis”.

·In November 2007, he was helping a mate to “do some cornice work” when he experienced strong pain in his neck, causing him to attend the Casualty section of Geelong Hospital.  He underwent a CT scan of the neck, and was informed that he had C-6 nerve root compression. 

·During the time he was off work, he obtained his Level 1/2 flagman’s ticket.  He applied for many jobs, including factory work, cleaning, forklift driving and rail work, but could not manage to find any jobs which comply with his medical restrictions as to lifting no more than 5 kilograms, no repetitive use of his right arm and no use of vibrating tools.

·In December 2007, he commenced work with Altus as a traffic controller, and such job mainly involved the use of a stop/go sign.  His hours of work currently vary a lot – last week he only worked 4.25 hours and this week he worked 25.7 hours.  His employer usually rings him to come in and occasionally he has to say “No” because his right arm is too sore.

·He is unable to go back to the type of work he was doing at the time he suffered his injury to his right arm.

·He has constant pain in his elbow, which extends from the elbow down to the wrist and up to the right shoulder.  At its best, it is 6 to 7 out of 10 and at its worst, 10 out of 10.

·Activity makes the pain worse and if he has to lift signs at work, he notices an increase in pain.

·He takes Panadeine Forte for the pain, usually two tablets in the morning, two at lunchtime and two at teatime, and such medication only takes the edge off the pain.

·He used to take Tramal for pain, but such medication made him too drowsy to work and drive.

·Apart from heat packs, he is not having any active treatment on the arm and mainly manages his right arm by limiting what he does.

·His sleep is affected because of the injury and he has “real trouble” finding a comfortable position and avoiding rolling onto his right arm, which causes him to wake.

·On weekends, he uses alcohol to get to sleep.

·Whereas before the injury he was very active around the house, he is now limited in what he can do and this has caused friction between him and his partner.

·His partner or one of his mates now mows the lawn as he finds the vibrations too painful.  He has tried vacuuming and still does it occasionally but tries to avoid it because it is painful.

·Even simple things like doing the dishes can be difficult because he drops things when his arm is tired and aching.

·He used to really like working on cars by himself and with mates and although he still tries to do a bit by working within his limits, it is nothing like what he was able to do prior to the injury.

·He used to enjoy bike riding and had a Ninja Kawasaki 250 but he was informed by his doctor not to ride such bike as it caused right hand cramps and was too dangerous.

·He used to enjoy fishing, both in the bay and from the pier, going a couple of times a week.  Since his injury, he has hardly gone at all because the right arm is sore and it aggravates it.

14      By way of his second affidavit, the plaintiff gives the following pertinent evidence:

·He continues to suffer pain in his right arm which is centred around the elbow region, radiating towards the shoulder and down towards the hand.  He also suffers from swelling of his forearm, hand and fingers.

·Activities that involve lifting, pushing and pulling with his right arm cause him to have the worst pain.

·He continues to have difficulties using his right arm repetitively or over prolonged periods, although it still aches even when not being used.

·He continues to suffer from numbness and tingling in his arm and fingers and the tingling is mainly in the region of his little and ring finger.

·He attends Dr Hassan on a monthly basis and has had some massage treatment over the last twelve months but stopped treatment as he found it made his symptoms worse.

·At times he takes Panadol Plus to help cope with the symptoms – however, he has tried to avoid taking painkillers by avoiding activities that are likely to flare the pain up.

·He believes he would never be able to have a capacity to return to unrestricted manual work and he is not suited to undertake office type working, given his reading and writing skills are very poor.

·In or about August 2012, he commenced work at All About Traffic on a casual basis.  He describes the job as relatively light and involving him driving a safety vehicle for workers working on the highway, undertaking traffic control duties and at times the need to set up and pick up signs and witches’ hats.  He generally finds that his symptoms are worse after undertaking these activities.

The Cross-examination of the Plaintiff

15      Under cross-examination, the plaintiff gave the following pertinent evidence:

·He is the holder of licences to drive a motorbike, motorcar and heavy rigid truck.

·Before the injury, he was working on the dayshift performing fettler’s duty and helping lay the rail track.

·After the injury, he resumed work with John Holland at the site performing flagman’s jobs, which was light work.  That work ceased because it “just stopped”.

·He is right hand dominant.

·Prior to the injury, there were times when he had no work at all for some years.

·He has not “lost any strength in that right arm” and presumes that it is stronger than his left.

·He does not presently own a pushbike and although he did ride after the injury, he stopped riding because it “was aggravating my arm”.  He believes he stopped “maybe a year after” the injury.

·The riding of the bike was “just for a bit of exercise” and he would ride it up to an hour or so when he rode from home to town and back.

·He was a self-taught mechanic and although denying that he worked on his own car now, or machinery, he does work on what he refers to as “little thumps” – that is, 125cc and 110cc bikes used by his grandchildren up the laneway and back.  He would do simple mechanical things to these bikes but has not touched his own motorcar for over four years.

·He hurt his neck when performing some plastering work at a friend’s house.  On coming home from helping his friend, he was assisting his partner pulling out some weeds when he got cramps in the neck.

·He denied that he hurt his neck when working on cornices at his home, but accepted that there had been plastering done at his home by his friends.

·The work at his friend’s house was essentially just painting, which he performed for a day, or day and a half.  Such work was performed in part with a roller, which was held by two hands from the ground, and in part by a paint brush, which was swapped from hand to hand.  He accepted that when painting, he would tend to use his dominant right hand.

·When queried further about his neck symptoms, the following evidence was given:

Q:     “Did you notice something while you were on the painting job or only notice it after the weed pulling at home?‑‑‑

A:     I noticed that like, when I was painting.

Q:     So what did you notice when you were painting?‑‑‑

A:     I got pins and needles in the back, in the back of my neck.

Q:     Did it go down your arm?‑‑‑

A:     No, it was fine.

Q:     You didn't get numbness when you were there doing the painting or tingling down your right arm?‑‑‑

A:     A little bit.

Q:     Is that while you were doing the painting or something that only came on later?‑‑‑

A:     Whilst I was doing the painting.”[15]

[15]T25, L10-19

·Although not owning a motorbike at the time of the injury, he did own an off-road bike and a road bike prior to the injury, but that was some years prior to the injury.  He had sold both bikes at least twelve months prior to the injury.

·After the injury, he owned the two smaller bikes (for his grandchildren) and a Ninja 250, which is a road bike.  He bought such bike approximately five years ago and owned that bike for may be six to twelve months.

·He intended to repair the plastics and the painting in order to resell it, hopefully at a profit.  He did ride the bike around the block and on the road a couple of times in order to find out how it was performing.

·When it was put to him that riding such a bike did not cause any particular problem, the plaintiff asserted it did cause a problem by aggravating his arm.  In this respect, he described that “stretching out” and riding over bumps on the road caused problems.

·His partner also worked and they would share the housework, and if he did not have a job, he would have taken on a bigger share of the housework, involving mopping and cleaning, vacuuming, washing, hanging out the washing, ironing, cooking and shopping.

·When queried as to whether he could perform most of these activities since the injury, the plaintiff stated:

A:     “Washing, I've done a little bit of vacuuming.”

HIS HONOUR: 

Q:     “So washing you can or can't do?‑‑‑

A:     I can.  You just throw it in the front loader.

Q:     So just go through the things that counsel raised.  What do you say you can or can't do now?‑‑‑

A:     Mowing the lawns, whipper snipping, long stints of vacuuming, like if I had to vacuum in here I would have to stop after probably 15 - five or ten minutes, 15 minutes, have a break, about a half hour and then get back into it.  Mopping, that's barely done because there's only two of us living there.”[16]

[16]T32, L30 – T33, L9

·He had lost his licence on two occasions through the 0.05 legislation.  Both occasions were prior to the injury.

·At the present time, the plaintiff described just “occasional niggles” with his neck and he copes with it quite well.

·He described pain in his right elbow area and pain if it is touched.

·He accepted that over his working life up to the injury, he would have been working about half the time.

·The plaintiff accepted that he does some welding at a work bench and is presently making a metal cover for his gun safe.  He performs MIG welding, which requires him to bring gas bottles home.  Such gas bottles are roughly over 1-metre high and he is able to lift them with one hand, wrapping the gas bottle into his chest with his right hand to guide.  He recalls replacing the bottle by placing it in the back of his car and going to BOC where the bottle was exchanged with the assistance of his partner.

·He gave evidence as to how his partner would assist him in getting the bottle to and from BOC.  He could recall over the last twelve months he has performed that activity on one occasion.

·When queried about lifting and manoeuvring traffic control cones in his present employment, the following evidence was given.

Q:     “So let’s come to the cones for the moment?‑‑‑

A:     Yes.

Q:     Can you handle them without discomfort?‑‑‑

A:     The lighter ones I can, yes.

Q:     They are ordinarily held in place by having a sugar bag size sort of hessian bag of sand on them, don’t they?‑‑‑

A:     No.

Q:     They are not held with - not weighted down with bits of sandbags on them?‑‑‑

A:     No.

Q:     They remain in place just through their own weight?‑‑‑

A:     Yes.

Q:     How do you go handling those cones, are they a cause of difficulty for you?‑‑‑

A:     It depends on the weight of them, yes, because they vary.

Q:     The lightest of them would weigh what sort of weight?‑‑‑

A:     I wouldn’t have a clue I’ve never weighed them.

Q:     But you’d have an approximation wouldn’t you, I mean would they weigh as much as say a slab of beer in cans I am talking about, 24 cans, would they weigh as much as that?‑‑‑

A:     No.

Q:     It would be lighter than 24 cans?‑‑‑

A:     Yes.”

HIS HONOUR: 

Q:     “The cones, do they come stacked on top of each other?‑‑‑

A:     Yes they do.

Q:     Are you required to manoeuvre cones stacked on top of each other or is it just individually?‑‑‑

A:     No, stacked on top of each other.

Q:     Can you handle them stacked on top of each other?‑‑‑

A:     Yes.

Q:     How do you go about that?‑‑‑

A:     I bring them straight out, I use - like you have to use both hands, put them straight on my left shoulder, hold them and just put them out one by one.

Q:     So as you are walking along and pull one out?‑‑‑

A:     Yes.

Q:     By your right arm ‑ ‑ ‑?‑‑‑

A:     By my right arm, yes.

Q:     And put it wherever they are required?‑‑‑

A:     Yes.”

MR MELDRUM: 

Q:     “So you’d carry them in your left?‑‑‑

A:     Yes.

Q:     And use your right to put them down onto the ground?‑‑‑

A:     Yes.

Q:     So you would carry what, half a dozen at a time or four or five?‑‑‑

A:     Sometimes four, sometimes five.

Q:     But not much more than four or five?‑‑‑

A:     Sometimes it might go more.

Q:     Up to?‑‑‑

A:     Maybe seven, eight, nine, depending.

Q:     How much do you reckon seven or eight or nine would weigh?‑‑‑

A:     I would not have a clue.”[17]

[17]T46, L13 – T47, L19

·He is performing traffic control work with “All About Traffic” and that involves putting bollards out, and operating a stop/slow bat.  Such work is “casual” and since commencing in August 2012, he has worked “sometimes three days, sometimes four days.  I’ve mostly been doing the four days”.[18]  He is paid $25 per hour.

[18]T48, L5-6

·He presently does not have a gun licence as he lost it because of incidents involving his excessive drinking.

·His drinking is now “controlled” and he takes the medication Campral.

·At the time of the injury, he held a shooter’s licence and was the owner of four guns.  His shooting was confined to rabbits and foxes.

·Prior to the injury, he was engaged in shooting may be once or twice a month and after the injury, he has been out once or twice prior to losing the licence.

·On 1 September 2012, he bought a caravan because his partner goes up to Cobram to visit her mother and normally has to sleep on the floor.  He thought it would be a good idea to take the caravan up to Cobram, leave it there and his partner can stay in the caravan when she visits her family.

·The caravan has been connected to the car but has not been yet taken to Cobram and is presently at his home.

·He connected the caravan to the towbar with assistance from a friend who also helped him to remove part of the front fence in order to get the caravan into the front of his property.  He helped to cut the fence down although he “suffered” after performing that activity. 

·He reinstated the fence, which involved him doing some welding, but he needed help with the fence.

·The plaintiff accepted that in about the middle of this year (2012), he exchanged a welding gas bottle for another bottle at BOC and was assisted by his partner.  He believed that his partner helped him get the bottle into the car but he was not sure about getting it out.  He was “pretty sure” that she also assisted him at BOC putting the new bottle into the car.

·The plaintiff was shown video of about one minute’s duration taken on 22 June 2012.  The plaintiff accepted that the video showed him getting the empty bottle out.

·Senior Counsel for the defendant advised that his instructions were that the partner of the plaintiff was in the car at the time of the delivery of the gas bottle to BOC.  The plaintiff accepted that he had to drag it out of the car at BOC but believes his partner was lifting it up a little bit and, although he had to take the full weight, it was taken with his left hand.  Furthermore, rather than carrying it, he rolled the gas bottle.

·In particular, the plaintiff asserted that he picked up the full bottle with his left hand, brought it over to the car, where he pushed it up with his knee into the back of the car behind the driver’s seat and his partner, who was in the car, helped him manoeuvre it across the seat.

·His present employment does sometimes involve travel, and the farthest he has been is Horsham and also close to the South Australian border.  The longest he has ever worked in his present job in one day is 13 to 14 hours and sometimes he has made a couple of thousand in a week.

·He denied that he has never refused work, and although he could not put a number on the occasions that he has refused work because his arm was too sore, he stated that is why he has dropped his work to four days a week.  In particular, the following evidence was given:

Q:     “Have you told them you’re only available four days a week?‑‑‑

A:     Yes.

Q:     When did you tell them that you were only available four days a week?‑‑‑

A:     When I started at All About Traffic.

Q:     So the terms on which you agreed to do All About Traffic work were not more than four days?‑‑‑

A:     Yes.

Q:     Have they asked you on any occasion to do more than four days?‑‑‑

A:     Yes.

Q:     Have you on any occasions done more than four days?‑‑‑

A:     No..”[19]

[19]T59, L 27 – T60, L4

·He believes that his fishing licence ran out about “last year or something or sometime”.  Prior to that, he continued to do some fishing.

·Before the injury, he fished from around Corio Bay and off the pier and used a rod and reel.

·He believes that he would have gone fishing possibly a dozen times this year, mostly off Cunningham Pier in Geelong.  He believes he performed more fishing prior to the injury and his present difficulty is that if using lures, just constantly winding and then casting, because you are constantly casting the line in and jerking up all the time.

·He has been out on boats from time to time both before and after the injury.

·Pursuant to a Notice to Produce, the plaintiff produced calendar diaries – one for this year and one for last year – setting out various references as to what work he does and when he performs such work.

·He accepted that he also writes in those diaries “mostly” on those occasions when he is sore or uncomfortable.

·The plaintiff was taken through a variety of entries in his diary.[20]

·The plaintiff confirmed that the power in his right hand is normal and that the sensation in the right hand is normal but it feels funny at the elbow.

·The plaintiff indicated various parts of his elbow where it is always sore and that gets worse if it is knocked, or handling weights or having his arm in a fixed position, like when he has to drive.

·The plaintiff accepted that there was no restriction of movement in his elbow but only the use of the elbow which gives rise to the bad pain.

·The plaintiff was taken to various histories given to various doctors.

·He presently takes Panadeine Plus, two in the morning, two at lunch and two in the afternoon  Although some days he would take no tablets, he believed that he would take some tablets at least four days a week.

·He is required to use sandbags at work, particularly if it is windy.  Sometimes he would be required to lift two sandbags to be used on each sign.  He always tries to lift with his left hand, although sometimes he does involve his right hand to lift sandbags.  If he does that, it hurts.

·He accepted the sandbags could be shifted with one hand, and that being his left.

·He stopped servicing his own and other people’s cars about three or four years ago.  Last year, he did assist in the service of his stepson’s brakes.  After he completed the job, he felt that his arm was sore and swollen.

·He denied that his right arm and neck since the cornice painting episode has given rise to most of his pain, rather than the elbow.

[20]See Exhibit F generally

The Re-examination of the Plaintiff

16      When re-examined, the plaintiff gave the following pertinent evidence:

·Over the last twelve months he believes he has been fishing about three times and the last time was possibly within the last six months.

·As at today, over the last month, he has taken six tablets a day, sometimes eight, and he has been doing that for “two, three months, possibly”.

·Prior to that, he was not working all that much and since working, he has required further medication.  In particular, the following evidence was given:

MR MACNAB: 

Q:     “So when you are working, does that have any impact on the amount of medication that you take?‑‑‑

A:     Yes.

Q:     In what way?‑‑‑

A:     Well on setting up signs and especially if it’s windy, the signs are getting blown around, you hold a stop bat in one spot, your arms are getting blown around all day, so.

Q:     What impact does that have on your arm?‑‑‑

A:     It just causes more pain, so I take painkillers.”[21]

[21]T105, L18-25

·When he has worked on cars, such work has aggravated his arm.  In particular using tools, such as a rattle gun, causes pain and that is why he has stepson with him to do most of the work.

·When required to put tension on tools such as a shifter or a spanner, such activity causes pain in his right arm.

·He applied for lots of jobs back in 2005-2006.  He went back to work with John Holland for a short period in June 2005.  After that work ceased, he was looking for work over a long period of time.  He did not believe he was capable of doing any of the jobs that he did prior to his employment with the first defendant – that is, as a machine operator with the Ford Motor Company, as a fettler with Backwell IXL, or the job with P & O Cold Logistics which required use of the hands.

·He had been taking Campral for alcohol control since March 2012.  Prior to that, he was drinking every day between a slab to half a slab in order to get rid of the pain and being able to sleep.

·Prior to the occurrence of the injury on 25 February 2005, he had not experienced any pain in his right elbow or in the right arm.

·He described the pain in the elbow going up towards the shoulder and sometimes half way down the forearm, although it can go into the fingers, depending on what he has done.  If he had to lift heavy things, or use his right arm repetitively, he gets a lot of pain and swelling in the forearm.  With lifting he tends to get tingling in the hand.

·He always has some degree of low-grade symptoms in his right elbow area which increase if he performs any heavy lifting or regular repetitive use the right arm.  He does not have to bump his right elbow that hard to experience significant pain.

·He goes up to Matchworks, which is a job network company, on a voluntary basis to look for work.  He found his present employment through his own endeavours.

·He became involved with Matchworks in 2005-2006 and he continues to see them on a regular basis, hoping he will find something which is more permanent and better employment.  It would depend on the job whether he would limit that employment to four days a week or consider five days a week.

·He works four days a week now because he can have the Friday, Saturday and Sunday off and be ready for work on Monday, and by Thursday he is very sore in the elbow again.

·The diaries he has written in came from Matchworks and although he has written in there the times when he has experienced his worst pain, he does not always record that in his diaries.  There were times when he did not record in his diary the required time off due to arm pain.  After being requested to give an answer as best he could, the plaintiff considered that he has lost about two to three weeks in total of work because of right arm pain.  When further queried about this aspect, the plaintiff gave the following evidence:

A:     “I wouldn’t be able to put a number of days on it because when I took time off I was either working the day before or - and I was sore the next day or that day when I got home from sore(sic) and it hadn’t changed the next morning, so I knocked it back.  I got asked in the afternoon and I let the boss know that I was - like I’m sore and I’ll ring him up before five o’clock to let him know - like how I’m going.  And I’d say, no, I’m still sore, so I wouldn’t work.  He said, I’ll just put it to somebody else.

Q:     Do your bosses at All About Traffic, do they understand what you say that you’ve got a right arm condition, they know about that?‑‑‑

A:     Yes.”[22]

[22]T 117, L10-22

He believes he may have had these conversations with his boss eight or nine times.

·When working on the Ninja motorbike, his arm was aggravated by holding the spray gun, performing the painting work and he avoided doing any mechanical work as that would have involved small spaces and using small ratchets to get into various areas.  Such activity would have aggravated his right arm.

·In particular, he was queried about his pre and post activities performing mechanical work, and the following evidence was given:

Q:     “In terms of the level of activity that you’ve - or the extent of the mechanical work that you’ve done on cars post injury, what can you tell His Honour about that?‑‑‑

A:     I used to change motors, gearboxes, diffs, lifting up gearboxes off me chest onto, like, the back of the motor, lift up, like, the fuel tanks back into spot, change diffs and axles, brakes, front-ends.  I wouldn’t be able to do none of that any more.

Q:     Why is that?‑‑‑

A:     Because it’s all heavy work.

Q:     What impact does that heavy work have on you?‑‑‑

A:     It just aggravates my arm..”[23]

·Whereas he did use a lure amongst other types of fishing prior to the injury, he does not use a lure now because such fishing activity aggravates his arm.

[23]T120, L1-11

The Evidence of Ms Fay Coburn Steel

17      The plaintiff relies on an affidavit of his partner, Ms Fay Coburn Steel, affirmed on 16 November 2012.[24]  In that affidavit, Ms Steel describes herself as being fifty-three years of age and having lived with the plaintiff for about twenty-five years.  She has two adult sons, aged thirty-three years and twenty-seven years, and the plaintiff has acted as their stepfather.

[24]See Exhibit 2 at page 41.14 of the PCB

18      She is currently employed as a personal care worked in an aged-care facility on a permanent part-time basis.  Ms Steel gave the following evidence:

·Since losing his work in the rail industry, she had lost count of the number of jobs that he has applied for but knows that his lack of reading and writing skills impacted on the sort of work he could apply for.

·Since the injury, she had seen the plaintiff experience constant pain in his right elbow and arm which is made much worse with activity.

·She observed him restricted in his ability to carry out work around the house; for example, mowing the lawns or using a vacuum cleaner.  Furthermore, she has observed him having trouble picking things up and holding them in his right hand.

·Before the injury, they had intended to do some renovations to the house and he was going to carry out a lot of work but has not been able to do so as a result of his right arm condition.

·She observed that he can no longer work on cars as he used to and has trouble using tools and lifting things. 

·He is not able to go fishing like he used to or ride his motorbike.  Both these activities gave him a lot of satisfaction prior to the injury.

·At night he has difficulty sleeping due to the pain in the right arm and if he rolls onto the right arm he will wake up and she has often seen him get out of bed and walk around the house trying to ease the pain.

·Their relationship is strained, and in April 2012, she moved out of the home for about a month.  Because she works, and she gets home and sometimes pushes him to do things using his right arm, which they both know will cause him pain.

The Cross-examination of Ms Fay Coburn Steel

19      Under cross-examination, Ms Steel gave the following pertinent evidence:

·She is presently a personal care worker for an aged-care facility, working 62.5 hours per fortnight.  She has only been in this job for about two years and prior to that she worked for the council, where the hours were up and down.

·At the time of the plaintiff’s injury, she was working part time with the council performing caring type work.

·Prior to the injury, the plaintiff was also drinking but tended to binge drink, whereas since the injury, he has drunk a lot more.  She noted that he is now on Campral and there has been some improvement with his drinking. 

·Over the last five years or so his participation in housework has decreased and in particular, the outside chores have diminished, including lawn mowing.  She does the lawn mowing, although he helps her by emptying out the grass catcher.  He has also done some weeding.

·He has tried to use the Whipper Snipper but he cannot, and the last time he used a Whipper Snipper was some years ago.

·His arm swells up from the elbow right down to the tips of the fingers and she has observed this many times.  She observed such swelling after performing any type of labouring or heavy lifting.

·He has not worked on his own car for years but has assisted his stepson changing the brakes, although her son did a lot of the work.  She accepted that she is not there all the time and cannot observe everything the plaintiff does.  She noted that the last time he went fishing was a “while back” and that his arm was pretty sore when he got back.  She accepted that he could ride a motorbike “probably for short term”, but if he had to ride it all the time, like, say a half-hour trip or something like that, he could not do it, due to “vibration of the bike”.

·She accepted that he does some repairs on the smaller bikes for the grandchildren and may well ride them to check brakes and things like that.  She confirmed that the caravan was bought for her to sleep in when she attended her family at Cobram.  In due course, she was going to find out the cost to keep the caravan at the caravan park in Cobram. 

·When his arm is swollen, it can remain that way for hours.

·He does involve himself in welding sometimes.

·Although she could not recall when she assisted him with a gas bottle, she did recall that she helped him carry the bottle to the car, “And I got in the car and lifted the bottle to get it on the back seat”.

The Re-examination of Ms Fay Coburn Steel

20      Under re-examination, Ms Steel gave the following pertinent evidence.

·She confirmed that she left him for a period of time because he was drinking “heaps” of beer.

·He may do a little bit of vacuuming of one room, stop and start again, whereas before the injury he would vacuum in a normal way.

The Medical Evidence relied on by the Plaintiff

21      The plaintiff has undergone the following investigations:

(a)Nerve conduction tests undertaken on 3 March 2005.[25]  The neurologist, Associate Professor Peter Gates, concludes:

[25]See report of 3 March 2005, Exhibit 3 at pages 42-43 PCB

“This study confirms the right carpal tunnel syndrome and is consistent with a very mild left carpal tunnel syndrome.

There is a mild prolongation of the right ulna sensory potential that may in part relate to coldness of his hand (despite numerous attempts to warm his hand) but it may also reflect an early ulnar nerve lesion that cannot be localised as the motor study is within normal limits.” 

(b)Ultrasound of the right elbow undertaken on 6 March 2006.[26]  The radiologist concludes:

[26]See report 6 March 2006, Exhibit 3 at page 44 PCB

“Minor previous healed injury at the common extensor tendon.  No further findings of note.”

(c)X-ray of the right elbow undertaken on 13 January 2007.[27]  The radiologist concludes:

“No bone or joint abnormality is seen.”

(d)MRI scan of the right elbow undertaken on 14 June 2007.[28]  The radiologist concludes:

“Minimal intermediate signal at the common extensor tendon attachment without significant adjacent marrow or soft oedema.  The findings can be seen with minor tendinosis.  No further findings of note.”

[27]See report of 13 January 2007, Exhibit 3 at page 45 PCB

[28]See report of 14 June 2007, Exhibit 3 at page 47 PCB

22      I also refer to the various investigations relied on by those acting for the defendants:

(a)CT scan of the cervical spine undertaken on 7 November 2007.[29]  The radiologist concludes:

[29]See report of 7 November 2007, Exhibit C at page 74 DCB

“Significant right posterior disc protrusion at C5/6.”

(b)MRI scan of the cervical spine undertaken on 29 November 2010.[30]  The radiologist concludes:

“Degenerative changes mainly at the C5-6 level, where a disc protrusion contacts the cord, and the exit foramina (C6 nerve roots) are narrowed bilaterally, greater on the left.  Mild narrowing is noted also in relation to the C4 nerve roots and the right C5 and C7 nerve roots.”

(c)CT scan of the cervical spine undertaken on 14 June 2011.[31]  The radiologist concludes:

“There is degenerative change, most marked at C5-C6.  A combination of diffuse disc bulge and marginal osteophytes narrow the left C5-C6 exit foramen, and could potentially compromise the existing left C6 nerve root.  If symptoms are ongoing and intervention is planned, supplementary MRI is recommended for a superior soft tissue contrast.”

[30]See report of 29 November 2010, Exhibit C at pages 75-76 DCB

[31]See report of 14 June 2011, Exhibit C at page 77 DCB

23      The plaintiff relies on a number of reports from his then general practitioner, Dr Monirul Haque, at the Medic Aid Clinic in Ryrie Street, Geelong.

24      She records that the plaintiff consulted her on 28 February 2005 complaining of pain and swelling in the right arm and right wrist for a period of four days.  In particular, the plaintiff gave a history that he developed pain on 25 February 2005 after working with a hammer on a rail track. 

25      Clinical examination at that time revealed his right forearm to be swollen and mildly tender over the ventral aspect.  Furthermore, his right wrist was tender and flexion of the wrist was painful. 

26      Dr Haque made a clinical diagnosis of carpal tunnel syndrome and referred him for nerve conduction studies to be undertaken by Professor Peter Gates.  She gave him a medical certificate and prescribed Voltaren for inflammation.

27      The report from Professor Peter Gates confirmed right carpal tunnel syndrome (together with very mild left carpal tunnel syndrome).  The study also revealed a possible early ulnar nerve lesion. 

28      On 3 March 2005, because of persistent pain and swelling in the right arm, Dr Haque referred the plaintiff to the orthopaedic surgeon, Mr Richard Page.

29      She notes that Mr Page diagnosed “an element of right ulnar neuritis and a probable element of forearm pump syndrome with mild carpal tunnel syndrome”.

30      Dr Haque continued to see the plaintiff on and off and noted, on 27 June 2005, that there continued to be mild swelling of the forearm and the plaintiff was certified fit for restricted work duties as a traffic controller.

31      In a report dated 27 June 2005, Dr Haque states, in part:

“In summary, Mr Eric Taylor has right ulnar neuritis with forearm pump syndrome with mild carpal tunnel syndrome.  It is most likely that his repeated movements associated with the use of hammering for prolonged periods without rest has caused the swelling and pain to the right forearm.  Even after 4 months of rest and two months of muscle strengthening exercises to the right forearm and wrist there was no complete relief and with any increase of activity with the forearm a reversion to the problem.  The position he has makes him a very likely candidate for a recurrence of the problem.”[32]

[32]See Exhibit 4, page 51 PCB

The Evidence of Dr Ahmed Hassan

32      The plaintiff relies on a report from Dr Hassan dated 12 October 2012.[33]  Dr Hassan was called and gave evidence.

[33]See Exhibit 4, page 54 PCB

33      He gave evidence that he is a legally qualified medical practitioner and in particular, holds a Fellowship of the Royal Australasian College of General Practitioners.  He has practised as a general practitioner since 1989 and currently practises at the Medic Aid Family Medical and Accident Centre situated in Ryrie Street, Geelong.

34      He gave further evidence that he has been the treating general practitioner of the plaintiff since 2006, taking over that role from Dr M Harque, who left the clinic in 2006. 

35      He identified his last Certificate of Capacity dated 25 November 2012 following an examination on that date.  He certifies the plaintiff to be suffering from right ulnar nerve entrapment and that he was fit for modified duties for the following month with restrictions of no lifting more than 10 kilograms and no use of vibratory tools.[34]

[34]See Exhibit 1

36      Dr Hassan also confirmed that he had prepared the report dated 12 October 2012.  In that report, he notes the various histories and comments recorded by Dr Haque and notes that he first saw the plaintiff on 14 May 2006. 

37      At that time, Dr Hassan referred the plaintiff to the neurologist, Dr Balla, who considered that the plaintiff, rather than having carpal tunnel syndrome or a right ulnar nerve injury, had a right lateral epicondylitis. 

38      On 27 August 2006, Dr Hassan gave the plaintiff a local steroid injection into the right elbow, which seemed to help him for only a month.  On 7 November 2006, he was again assessed by the orthopaedic surgeon, Mr Page, who again diagnosed a right ulnar neuritis and arranged for the plaintiff to undergo an ulnar neurolysis and transposition.

39      Dr Hassan continued to consult with the plaintiff through 2007 and notes that on 4 July 2007, Mr Page sent the plaintiff for further x‑ray and an MRI scan of his right elbow, which revealed some minor tendonitis.  During this period of time, there was no change in the right elbow pain, notwithstanding that the plaintiff was attending a physiotherapist and doing a variety of exercises.

40      Dr Hassan noted the plaintiff had consulted him on 3 November 2007 complaining of right upper limb pain, weakness, and a pins and needles sensation following performing some work on the cornice of a friend’s house “a few days ago”.  Dr Hassan referred the plaintiff for a CT scan of the cervical spine which revealed severe narrowing at C5-6 and compression of the C6 nerve on the right side.  Dr Hassan continued to treat the plaintiff throughout 2007, 2008, 2009 and 2010 on a reasonably frequent basis.  Throughout this period of time there was no change in his condition in relation to the right elbow. 

41      In May 2011, Dr Hassan arranged for the plaintiff to undergo nerve conduction studies of the right upper limb which revealed mild carpal tunnel syndrome of the right wrist.  Furthermore, in June 2011, the plaintiff underwent an updated CT scan of the cervical spine which continued to reveal degenerative changes at C5-C6 level.  Dr Hassan continued to review the plaintiff during 2011 and 2012.  In his report dated 12 October 2012, Dr Hassan stated:

“1     Diagnosis: chronic right elbow pain, due to right ulnar nerve inflammation (neuritis) in the context of his job at Online Personnel with a hammer of a rail track on 25.2.2005. 

2     Treatment:  is mainly analgesics on an as needed basis plus avoidance of things that flare up this pain like lifting heavy things more than 10 kg or using vibratory tools.

3     Prognosis:  his condition will be permanent with no cure now or in the foreseeable future.  He has no capacity for pre-injury duties, but he is suitable for other jobs like flagman, traffic controller, forklift driver (after training), customer service officer.”[35]

[35]See Exhibit 4, at pages 56, 57 PCB

The Cross-examination of Dr Hassan

42      Under cross-examination, Dr Hassan gave the following pertinent evidence:

·In response to the assertion that he had not given many prescriptions to the plaintiff, Dr Hassan stated:

“According the need.  Because in his case his pain is coming infrequent and in special situation when he use only vibrating tools.  So he not use the painkillers much.  Very little.”[36]

[36]T126, L10-13

·Dr Hassan, over his period of treatment, has not observed any swelling or changes in colour around the elbow.  Dr Hassan prescribed, on occasion, some anti-inflammatories, together with painkillers, such as Tramal.

·When queried about his complaints of pain, Dr Hassan noted that every time he consulted with the plaintiff he asked him about the pain in the right arm and the plaintiff mentioned situations which arise which causes great pain.  Such situations usually involve repetitive use of the arm or using a vibrating tool.

·When queried as to whether the plaintiff has ever presented to him in the clinic in severe pain, Dr Hassan noted – “Just very, very, very few times when he’s been.  When he comes always he’s not in pain.”[37]

[37]T129, L9-10

·He has treated the plaintiff for alcohol abuse over the last few months.  The plaintiff has been under “a good control”.

·In February 2007, when the plaintiff presented with a history of pain for about one week in the right elbow, he gave him Mobic from samples.

·He encouraged the plaintiff throughout 2007 to perform home exercises to build up his strength.

·On 23 October 2007, he prescribed Campral.

·On 3 November 2007, following him working on the cornices at a friend’s house, the plaintiff presented with a right upper limb which was weak, painful and had pins and needles.  In particular, the following evidence was given:

Q:     “This is the first time that the symptoms were not confined, that you were treating him for, to the arm but became neck and arm?‑‑‑

A:     Yes.

Q:     From then the two have been intertwined?‑‑‑

A:     Yes.

Q:     Neck and arm, and is it rare to see him for arm and it’s not neck?‑‑‑

A:     What happen, the three nerves in the arm origin from here, between number ‑ ‑ ‑

Q:     From here, you are pointing up to the lower cervical spine?‑‑‑

A:     C5, 6 and 7, exactly.  So when he was painting the cornice he suddenly feel the pain and the pain was severe.  They took him to the - his friends took him to the casualty.  In the casualty they said, okay, he has cervical problem, cervical (indistinct) problem.  I send him for CT scan to explore that which is fine, the C5-C6 bulging and pressing on the nerve.  This nerve is the origin of the three nerve of the upper arm.  When someone, any patient come with a nerve pain which is different symptoms like pins and needles, weakness, shaking, anything like this, even when you make the nerve conduction studies you want to see the nerve (indistinct) wrist, elbow or in the neck.  Sometimes it’s moving up and down.  So still possibility this is affecting the problem of C5-6 affecting the nerve along its course until the hand..”[38]

[38]T139, L4-27

·He was of the opinion that after the neck injury, the pain became “more”.

·In particular, Dr Hassan gave the following evidence:

“Q:    Did that to your view, in your medical opinion, change the course of the problems in the arm?‑‑‑

A:     Exactly, from improving slowly to return back.

Q:     And therefore made a very significant change in that something that you thought was - well, you observed was improving?‑‑‑

A:     Yes.

Q:     And he was giving a history consistent with it improving?‑‑‑

A:     Yes.

Q:     Your examinations were consistent with that?‑‑‑

A:     And the painting.

Q:     And the change turned something that was not very significant and getting better into something that became far more significant and got and remained worse?‑‑‑

A:     Yes.

Q:     It really was a turning point?‑‑‑

A:     A turning point, yes.  It affect[s] him too, bad.

Q:     And has now overtaken the original nerve problem in the elbow.  You are nodding which doesn’t get onto the transcript.  Sorry, you are nodding, which shows you are agreeing with me?‑‑‑

A:     Yes.

Q     But we need your answer, not your nod?‑‑‑

A:     Yes, that’s right.

Q:     It’s your medical opinion now that most of his problems that now present in the arm come from that painting episode, not from using the jackhammer back in ‘05?‑‑‑

A:     No.  Still the jackhammer produce[s] the pain.

Q:     Plays a role, yes?‑‑‑

A:     Yes of course ... .”[39]

·He was unable to say which was the more significant source of symptoms, the neck or the right elbow.

·He considered that it was “exactly right” that the markedly worst pain was caused by the additional effect of the nerve in the neck. 

·He prescribed Tramal for the extra pain brought about by the neck injury.

·On 22 July 2010, he recorded that the plaintiff did some renovations at home and now the right ulnar nerve side of the forearm and hand are numb and tingling, as well as a burning sensation. 

·He had no memory of what particular renovation was undertaken. 

[39]T 140, L16 – T141, L9

The Re-examination of Dr Hassan

43      In re-examination, Dr Hassan gave the following pertinent evidence:

·When queried as to the level of pain after being exposed to vibration tools or other aggravating events, Dr Hassan described the pain rising to 8 or 9 out of 10, and that he believed such a description would be accurate.

·Although he thought his elbow pain was improving, it was not cured at the time of the neck injury.

·He described the complaints at the various consultations leading up to the neck episode in November 2007.

·He confirmed that he has continued to give certificates which relate to the work episode causing damage to the right elbow, ulnar nerve entrapment.  Furthermore, he confirmed that if the plaintiff did not follow the restrictions given in the certificates – that is, not using vibratory tools and not lifting more than 10 kilograms, he would expect the following to happen:

“The pain will come quickly within one hour and it will push him to stop this action.”[40]

·He considered that the elbow injury sustained in 2005 is the “main one” and the main factor in his pain until now.

·He considered that the right elbow injury, taken alone, would render him unfit for his pre-injury duties involving vibrating machinery together pushing, pulling and lifting and all those sorts of jobs.

[40]T163, L27-29

The Evidence of Mr Richard S Page 

44      The plaintiff relies on various reports from the treating orthopaedic surgeon, Mr Richard S Page.[41]  Mr Page initially consulted with the plaintiff on 19 April 2005, at which time he obtained a history of pain in the right forearm, following a heavy period of using a vibra-tool on 25 February 2005.

[41]See Exhibit 4, pages 58-68 PCB

45      Following this event, he noted that he had purple fingers and coldness in the hand, and furthermore, was experiencing discomfort down the ulna side of the forearm, particularly on extension of the fingers.

46      On examination, the plaintiff had cold fingers bilaterally on palpation and there was some irritability of the ulnar nerve with a positive Tinel’s test, just distal to the medial epicondyle.  There was also some tenderness in the proximal ulna side of the flexor compartments.

47      Mr Page made the clinical diagnosis that the plaintiff was suffering an element of ulnar neuritis and probably an element of forearm pump syndrome.  He referred him for physiotherapy.

·Letters of enquiry to Mr Simm dated 4 July 2012 and 30 October 2012

·Medical reports of Mr Ian Jones dated 6 September 2011; 3 August 2012; 14 September 2012; and 19 November 2012

·Letter of enquiry to Mr Jones dated 10 September 2012

·Medical report of Mr K Siu dated 19 June 2012

·Medical reports from Dr Davison dated 27 July 2006; 7 June 2007; 8 September 2011; and 12 November 2012

·Medical reports from Mr T J Russell dated 24 July 2008 and 28 August 2008

·Medical report of Mr Henderson dated 7 July 2005

·Barwon Health, Department of Emergency Medicine letter of October 2007

All such reports found at pages 2 – 72 Defendants’ Court Book (“DCB”)

Exhibit C

·CT scan of cervical spine dated 7 November 2007

·MRI scan of the cervical spine dated 29 November 2010

·CT scan of cervical spine dated 14 June 2011

All such reports found at pages 73 – 77 DCB

Exhibit D – Medical report of Dr Timothy Wood at pages 82 – 86 PCB

Exhibit E – Notes of Dr Hassan from the Clinic of Family Medical and Accident Centre

Exhibit F – Extracts from plaintiff’s diary entries

Exhibit G – Document created by counsel setting out various entries from plaintiff over the period 2011/2012 (to use as an aide memoire by Counsel and Judge).

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