Trafford v Prior
[2013] VCC 1156
•29 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-03892
| RICKY MARK TRAFFORD | Plaintiff |
| v | |
| MICHAEL PRIOR | Defendant |
---
JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 29 August 2013 | |
DATE OF JUDGMENT: | 29 August 2013 | |
CASE MAY BE CITED AS: | Trafford v Prior | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1156 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the left upper limb – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Transport Accident Commission & O’Dea v Dennis (1998) 1 VR 702; Mobilio v Balliotis & Ors [1998] 3 VR 833; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Barlow v Hollis [2000] VSCA 26; Richards v Wylie (2000) 1 VR 79; Hunter v Transport Accident Commission [2005] VSCA 1; Swannell & Anor v Farmer [1999] 1 VR 299; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Cropp v Transport Accident Commission & Beglehole [1998] 3 VR 357; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Bezzina v Phi [2012] VSCA 161; Jones v Dunkel (1959) 101 CLR 298; O’Donnell v Reichard [1975] VR 916; R v Lao (2002) 5 VR 129
Judgment: Leave granted to the plaintiff to bring common law proceedings for pain and suffering damages in respect to a left upper limb injury suffered by him on 7 September 2007 during the course of his employment with the defendant.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B W Collis QC with Mr A D B Ingram | Verduci Lawyers |
| For the Defendant | Mr D Seeman | Thomsons Lawyers |
HER HONOUR:
Background
1 On 7 September 2007, Ricky Trafford, the plaintiff, was working at a building site, at height on scaffolding, when the plank upon which he was standing dislodged. He fell to the ground (“the incident”). He sustained a fracture to his left elbow. He underwent surgery on two occasions. He still has two screws in his elbow.
2 By Originating Motion dated 15 August 2011, the plaintiff seeks “leave to commence common law proceedings pursuant to s134AB of the Accident Compensation Act 1985 [‘the Act’] to institute proceedings … to recover damages in respect of the injuries sustained in an industrial accident”.
3 The hearing commenced before me on 27 August 2013. It continued this morning, 29 August 2013.
4 Mr B Collis, QC, appeared with Mr A Ingram on behalf of the plaintiff. Mr D Seeman appeared on behalf of the defendant.
5 In opening the case for the plaintiff, Mr Collis refined the plaintiff’s claim. The plaintiff seeks leave to commence common law proceedings for damages for pain and suffering only.
Legal principles
6 The statutory scheme entitles a person injured arising out of, or in the course of, or due to the nature of employment on or after 20 October 1999 to compensation.[1] It is not disputed that the prerequisites referred to in that section are met in the present case.[2]
[1]See s134AB(1) of the Act
[2]The plaintiff was injured during the relevant period in the course of his employment with the defendant
7 Section 134AB(1) notwithstanding, a person shall not recover any damages in any proceedings in respect of such an injury except in accordance with the remaining provisions of s134AB. This application is brought under ss(16)(b).
8 Section 134AB(19) prohibits the Court from granting leave under ss(16)(b) –
“… unless it is satisfied on the balance of probabilities that the injury is a serious injury.”
9 “Serious injury” is defined in ss(37) to mean:
“(a) permanent serious impairment or loss of a body function; or
…
(c)permanent severe mental or permanent severe behavioural disturbance or disorder.”
10 To be compensable under the Act, the injury sustained must fall within the definition of “serious injury” provided in the Act.
11 “Serious injury” means “very considerable”.[3]
[3]Humphries & Anor v Poljak [1992] 2 VR 129 at 140; Transport Accident Commission & O’Dea v Dennis (1998) 1 VR 702 at 703 and Mobilio v Balliotis & Ors [1998] 3 VR 833
12 To qualify as a “serious injury”, the injury must be one that has serious consequences for the plaintiff judged on an objective basis, and when judged by a comparison with other cases in the range of possible impairments it must be capable of being fairly described as at least “very considerable” and certainly more than “significant” or “marked”.[4]
[4]s134AB(38)(c); Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511 at paragraph [15]; Humphries & Anor v Poljak (supra) at 140-1
13 The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against possible impairments, not necessarily in the same category.[5]
[5]Humphries & Anor v Poljak (supra) at 170; Barlow v Hollis [2000] VSCA 26 at paragraph [29].
14 For a body function, it is the “impairment” which must be serious. The evaluative task is addressed to the impairment not to the injury which causes the impairment.[6]
[6]Humphries & Anor v Poljak (supra) at 134; Richards v Wylie (2000) 1 VR 79 at paragraph [16].
15 The degree of seriousness of the impairment is to be judged by its “consequences” to the plaintiff and by “comparison with other cases” in the range of possible impairments or losses.[7]
[7]Humphries & Anor v Poljak (supra) at 140; Lu v Mediterranean Shoes Pty Ltd (supra) at paragraph [15]
16 Assessment of consequences requires a comparison of the plaintiff’s before and after position.[8]
[8]Humphries & Anor v Poljak (supra) at 136; Hunter v Transport Accident Commission [2005] VSCA 1, at paragraph [34]
17 This is not an “aggravation” case.
18 It is not permissible to “aggregate” different injuries, none of which are “serious”.[9]
[9]Humphries & Anor v Poljak (supra) at 138 and 146; Lu v Mediterranean Shoes Pty Ltd (supra) at paragraphs [28]-[29]
19 The time for assessing whether an injury is “serious” is the date at which leave is decided.[10]
[10]Swannell & Anor v Farmer [1999] 1 VR 299 at paragraph [36]
20 Any impairment or loss of body function must be permanent;[11] that is, “likely to persist in the foreseeable future”[12] or “at least extending beyond a few years”[13]
[11]s134AB(37)
[12]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraphs [18] to [19]
[13]Cropp v Transport Accident Commission & Beglehole [1998] 3 VR 357 at 361 and 367
21 “The psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of sub-paragraph (c) of the definition of ‘serious injury’ and not otherwise.”[14]
[14]s134AB(38(h)
22 “The physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of sub-paragraph (c) of the definition of ‘serious injury’ and not otherwise.”[15]
[15]s134AB(38(i)
23 A stoic applicant who has been prepared to put up with pain and suffering and make the best of his or her situation should not be treated less favourably than an applicant who, being of less strength of character, simply resigns himself or herself to the injury.[16]
[16]ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31 at paragraph [70]; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (17 December 2008) at paragraph [3]
24 The endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.[17]
[17]ACN 005 565 926 Pty Ltd v Snibson (supra) at paragraph [71]; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267 (28 November 2007) [199].
25 The plaintiff asserts ongoing pain, which he says restricts his capacity to fully move and use his affected limb and interferes with his daily living, social, domestic and work activities. If he suffers this pain, and to the extent claimed, there is no suggestion that the pain is not physically based. Accordingly, every aspect of the plaintiff’s application falls to be determined under sub-paragraph (a) of the definition of “serious injury”.[18]
[18]Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605 at paragraphs [24]–[29]; Meadows v Lichmore Pty Ltd [2013] VSCA 201 at paragraphs [19] and [29]
26 As to pain and suffering consequences of the injury, in Aburrow v Network Personnel Pty Ltd & WorkSafe Victoria,[19] Maxwell P and Tate JA observed:
[19][2013] VSCA 46
“[10]As Maxwell P suggested in Haden Engineering Pty Ltd v McKinnon,[20] it is of assistance in reviewing a body of evidence like this — for the purpose of evaluating the ‘pain and suffering consequence’ of an injury — to distinguish between:
[20](2012) 31 VR 1
● the plaintiff’s experience of pain as such; and
● the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[21]
[21]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph [9].
These are not, of course, rigidly separated categories. For example, evidence about the disabling effect of the pain may enable inferences to be drawn about the intensity and frequency of the pain, and vice versa.[22] But the distinction remains important for the purposes of the pain and suffering assessment, as this appeal shows.
[22]See for example Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12 at paragraphs [46]–[47].
The experience of pain as such
[11]We deal first with Mr Aburrow’s experience of pain as such. The approach suggested in Haden, and subsequently endorsed in Sutton v Laminex Group Pty Ltd,[23] was as follows:
[23](2012) 31 VR 100
The experience of pain
As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, the court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.
As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.
…
As to (d), the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.[24]
[24]Haden Engineering Pty Ltd v McKinnon (supra) 109-10 at paragraphs [46]–[48]
…
The disabling effect of the pain
[19] As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this Court (Ashley JA) said in Dwyer v Calco [Timbers] Pty Ltd (No 2):[25]
[25][2008] VSCA 260.
‘[I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.’[26]
[26]Dwyer v Calco Timbers Pty Ltd (No 2) (supra) at paragraph [27]. See also Haden Engineering Pty Ltd v McKinnon (supra), 4–5 at paragraphs [9]–[14]
[20] As suggested in Haden (and endorsed in Sutton),[27] the disabling effect of the pain is to be assessed by considering the impact of the pain on the worker’s capacity for work and the degree to which it interferes with the ordinary activities of life, as follows:
[27] Sutton v Laminex Group Pty Ltd (supra), 110–11 at paragraphs [49]–[50]
‘As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed ha[s] been closed off to [him or her]’.
Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s:
•sleep;
•mobility;
•cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
•capacity for self-care and self-management;
•performance of household and family duties;
•recreational activities;
•social activities;
•sexual life; and
•enjoyment of life.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.”[28]
[28]Haden Engineering Pty Ltd v McKinnon (supra), 5–6 at paragraphs [15]–[16]
The issues
27 The issue to be determined in this application is whether the consequences of the plaintiff’s injuries to his left upper limb (left elbow and shoulder) can fairly be described as being “more than significant or marked and as being at least very considerable”. The defendant admits that the plaintiff suffered fractures and other injuries in the workplace accident as described, but denies that the consequences for him of those injuries are at least very considerable. In essence, Mr Seeman submits that the fractures have healed, there is no significant restriction of movement and, in any event, due to the plaintiff’s unrelated problems and their consequences, not much has changed for the plaintiff.
28 Further, the defendant submits that I should infer that the plaintiff’s experience of pain is not to the extent or frequency as claimed. Mr Seeman submits that the medical records do not record complaints of pain consistent with the plaintiff’s assertion.
The evidence
The Plaintiff’s case
29 The plaintiff gave sworn evidence. In evidence-in-chief, he adopted his two affidavits.
30 The plaintiff was born in June 1970 and at the date of hearing was aged 43 years. He was educated to Year 9 and left school at the age of 15. After leaving school, and to about 1990, he had various jobs, mainly as an unskilled labourer. He was unemployed for a year and then obtained work as a labourer in a construction business. He worked there for about a year and thereafter worked as a process worker on an assembly line at a chicken factory. He held various labouring jobs, with periods of unemployment, until 2007.
31 In early September 2007, the plaintiff commenced work for the defendant as a labourer, working at a demolition site in Coburg. On 7 September 2007, he was working on a platform about 3 or 4 metres off the ground. He was grinding off the weld of a metal platform to dismantle it when part of the platform on which he had previously worked suddenly gave way. He fell, still holding the active grinder. He managed to switch it off and throw it away from his body. As he was falling, he was able to catch his foot onto a purling, stopping the fall. He was now suspended upside down, holding on with his foot. Unfortunately, his boot slipped off his foot and he fell to the ground. He placed both arms in front of his head in an attempt to prevent striking his head on the concrete. He sustained injuries to his left arm and shoulder, as well as to other body parts. This claim is confined to the injuries sustained to his left upper limb.
32 Many of the facts are not disputed. In addition to the injuries sustained in this incident, the plaintiff has had many other medical issues. So much is also common ground. As mentioned earlier, the defendant’s case is that because the plaintiff was already adversely affected by the consequences of those other conditions, any additional impairment or consequences of the present injury are limited, and should not be regarded as being more than significant or marked and as being at least very considerable. I should add that although the plaintiff did not initially report the incident as work-related,[29] the defendant accepts that the plaintiff was injured in the circumstances now alleged. Mr Seeman concedes that the plaintiff had not sustained significant injury to his left elbow or shoulder prior to this incident, nor do any of the plaintiff’s pre-existing consequences impair or adversely affect the left upper limb. Mr Seeman also concedes that this is not an “aggravation case”.
[29]The plaintiff wanted to work and did not want his boss to get into trouble
33 Cross-examination of the plaintiff focused on the plaintiff’s various medical conditions both before and after the incident. He was questioned about the extent to which the current injury affects his social, domestic and working activities. The plaintiff maintained that he still has clicking in his elbow from time to time.[30] He still has restriction in bending, raising and stretching his left arm. He has difficulty showering, particularly scrubbing his feet. [31] There is interference with his sleep,[32] and at times his capacity for intimacy is compromised.[33] Although he socialises with friends, he feels embarrassed and adjusts the manner in which he carries his arm to make them appear the same.[34] He can help with cooking and washing the dishes, but doing laundry is restricted. He can do some vacuuming, gardening and household cleaning.[35] His ability to wash the car is restricted. He cannot reach as far with his left arm and compensates by using his right. Previously both hands had equal strength and ability, however now he favours using his right.[36] Although he can do supermarket shopping, his capacity to lift is restricted to approximately 10 kilograms, although that would be painful.[37]
[30]Transcript (“T”) 13
[31]T14
[32]T15
[33]T15 – 16
[34]T16 – 17
[35]T17
[36]T18
[37]T18 – 19
34 The plaintiff takes Panadeine Forte and aspirin for the pain. Sometimes he uses Panamax. There are some pain-alleviating medications he cannot take due to other medical conditions he suffers.[38] After the accident, he was able to ride a dirt bike, although he was involved in an accident and has not ridden since. Prior to his work injury, he was capable of riding a motorbike for hours on end. After the incident however, he had a tolerance of about one hour, perhaps less.[39]
[38]T19 – 20
[39]T21 – 22
35 It was suggested to the plaintiff that he had not made many contemporaneous complaints of pain to medical practitioners. Although he maintained that despite the absence of clinical notes, he did in fact complain,[40] he also conceded that at times he was embarrassed.
[40]See for example T29 – 30
36 I have examined the medical records and discussed them with counsel.
37 Care must be taken when considering whether medical records (or their absence) can be used adversely to the interests of the patient.[41] The absence of specific notes does not mean that the plaintiff did not complain, and, in the circumstances of this case, does not rebut the plaintiff’s evidence that he did so complain. An example of this concerns the plaintiff’s presentation to Dr Scarlett after the incident. The medical records of the practice make no reference to the plaintiff attending that day. Nor could Mr Seeman point to any referral for imaging or the receipt of any records or correspondence from the Northern Hospital. Yet, there is no doubt that the plaintiff attended Dr Scarlett and that he had two operations on his injured elbow. Further, the records refer to correspondence written and referrals made. However, none of those documents were produced in answer to the subpoena. I am not satisfied that the records relied upon by Mr Seeman as the foundation upon which I am invited to draw the inference are complete. The inference is not open. Further, the simple fact is that the plaintiff did have ongoing problems following the first operation on his elbow, and as a consequence underwent a second operation. He would not have been admitted for this surgery unless he had complained of the problem.
[41]See for example Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 at paragraph [22] and footnote 5, per Ashley JA
38 Helpfully, the plaintiff’s counsel have summarised much of the evidence in the chronology tendered as exhibit A. I have adopted most of that document:
“C H R O N O L O G Y
1985 Completed Year 9.
1986-1990Worked for various employers as a steelworker, storeman, assembly line worker, service station attendant and kiln operator.
1990-91 Unemployed.
1991-1993 Employed as a labourer/assembly line worker.
1993 Unemployed.
1993-94 Employed as a labourer.
21-05-1998Commenced to receive Centrelink benefits. Thereafter in receipt of such benefits as follows:
· 22-05-1998 – 09-10-1998
· 03-05-1999 – 14-06-1999.
01-01-1999 Struck on head by baseball bat. Had neck/shoulder pain.
05-1999-05-2000 Employed by Metroll Pty Ltd, roofing contractors.
01-05-2000Bent over to get a spanner from under a machine and struck right shoulder further. One hour lifting a purlin. Onset of severe low-back pain.
13-05-2000 Ceased work.
15-05-2000CT scan of lumbar spine (exhibit R – Plaintiff’s Court Book (“PCB”) 48).
L4-5 minor degenerative change, slight disc bulge.
16-05-2000MRI of lumbar spine (exhibit R – PCB 49). T11-12, T12‑L1 disc degeneration.
09-06-2000Report of Mr John O’Brien to WorkCover (exhibit 7 – Defendant’s Court Book (“DCB”) 1)
Opinion:
· Mild soft tissue injury from which he had basically recovered.
14-06-00-29-08-00 Received Centrelink benefits.
04-01-2001 Report of Dr Wallin (exhibit 9 – DCB 5):
· Had been certified unfit for work – 16-11-2000 – 14-12-2000 for low-back pain
· Was in receipt of WorkCover benefits.
Opinion:
· Mild lower back disability.
27-01-2001 Report of Mr R Miller to WorkCover (exhibit 10 – DCB 9).
May have suffered muscle ligamentous lumbar spine injury. Not suitable for physical work.
16-07-2001Report of Dr Tran (exhibit 5 – PCB 78-79). Ongoing LBP. Advised to continue with conservative treatment and wear back brace.
20-07-2001Report of Mr K Elsner to WorkCover (exhibit 12 – DCB 15):
· May 2000 suffered soft tissue strain of thoraco-lumbar spine;
· No significant abnormalities;
· Employment no longer contributing factor.
21-09-01-31-10-11 In receipt of Centrelink benefits.
Firstly unemployment benefits and as from 11-03-2003 disability pension.
28-01-2002 Report of Dr Hodgson (exhibit 6 – PCB 80-81):
· Had minor disc injury in lower thoraco spine;
· Was capable of suitable work.
May 2003Did some cleaning work for short period. Reported it to Centrelink (Not tendered – DCB 144).
04-09-2007Commenced employment with Michael Prior as a labourer. Work involved demotion of Kodak factory in Coburg.
07-09-2007The incident occurs: Working on a platform approximately 3 to 4 metres above ground level. Part of another platform nearby gave way causing him to fall and land on his outstretched left arm. Other workers came to his assistance and he was driven home and then was driven to the Northern Hospital. Saw Dr Scarlett (exhibit 3). See Affidavit of brother, Herbert Trafford, who was a fellow employee and who witnessed the accident (Not tendered because of concession – PCB 34-36).
At Northern Hospital (exhibit E – PCB 50-52) complained of pain in his left elbow and shoulder. Told them he had fallen off a roof 07-09-2007. X-ray of left elbow (PCB 50) demonstrated an undisplaced intra articular fracture of the radial head and neck. Separate fragment of bone measuring 11mm. Left arm placed in a sling and was discharged to orthopaedic clinic. Prescribed Nurofen and Panadeine Forte.
10-09-2007Awoke with chest pain. Taken by ambulance to Northern Hospital (exhibit E – PCB 50).
Diagnosis: Gastritis. Discharged home.
18-09-2007CT scan of left elbow (exhibit E – PCB 51). Mildly displaced fracture involving radial head with 1mm stop deformity. Moderately displaced fracture of the capitellum which is displaced medially by up to 2.7cm.
25-09-2007Arthrotomy undertaken at Northern Hospital (exhibit E – PCB 51). Fracture fixation with two screws fixed across the fracture of the left radial head and one screw to fix the fracture of the capitellum.
28-09-2007X-rays demonstrating internal fixation (exhibit E –PCB 51)
30-09-2007Attended Emergency Department of Northern Hospital with sharp left-sided chest pain (exhibit E – PCB 51). Admitted.
01-10-2007Lung scan (exhibit E – PCB 51). Probability of pulmonary embolism.
01-10-2007CT pulmonary angiogram (exhibit E – PCB 51). No convincing evidence of pulmonary embolism. Prescribed Clexane.
01-10-2007X-ray of left elbow (exhibit E – PCB 52). Persisting joint effusion.
02-10-2007 Discharged from Northern Hospital.
10-10-2007 Staples removed from left elbow.
07-11-2007X-ray of left elbow (exhibit E – PCB 52). Moderate sized elbow joint effusion. Several loose bodies noted. Limited range of movement.
24-06-2008 Attended Dr Gray (exhibit L) for review of left elbow.
August 2008 Commenced to attend Dr Scarlett for unrelated matters.
No mention of left elbow pain (Exhibit 2 – PCB 75-77).
03-12-2008X-ray of left elbow (Exhibit E – PCB 52). Small amount of lucency at inferior aspect of screw fixing capitellum. Plaintiff had ongoing left elbow pain and limitation of movement.
25-02-2009CT scan of left elbow (exhibit F – PCB 83). Multiple fragments. Early osteoarthritis in humero-ulnar joint (exhibit G –PCB 83(b)).
24-07-2009Admitted to Northern Hospital. Manipulation of left elbow under anaesthetic. Arthrotomy of left elbow and removal of loose bone fragments. Screws removed (exhibit K – PCB 92-93).
28-12-2009 Taken to Emergency Department of Northern Hospital:
· Had been involved in motorbike accident;
· Bilateral knee pain;
· X-rays: Neck normal;
· X-ray of right knee suspected fracture of patella;
· X-ray of left knee: No abnormality.
07-01-2010 Reviewed at Northern Hospital (exhibit K - PCBp93).
No fracture of right knee. Zimmer splint had been applied.
11-08-2010Worker’s claim for impairment benefits for injury to left arm and shoulder, both knees and pneumonia on 09-09-2007 when fell from platform (Not tendered in view of defendant’s concession that the injury was sustained in a workplace incident – PCB 131-132).
13-10-2010Assessed by Dr D Fish for WorkCover
(exhibit N – PCB 124-129):
History:
· Could not remember dates;
· Working on elevated platform at Kodak as a labourer when he suffered a fall.
Noted:
· Records of Northern Hospital and in particular lung scan and CT pulmonary angiogram on 01-10-2007.
Examination – Left Elbow:
· Longitudinal scar;
· Tenderness over capitellum;
· Range of movement was restricted with a fixed deformity of 30 degrees and restricted pronation and supination
Opinion:
· The plaintiff had a residual dysfunction of the left elbow;
· A respiratory condition arose following surgery and in his opinion this was most likely to have been a pulmonary embolism which has anteriorly resolved.
11-04-2011WorkCover accepted liability for injuries to left elbow/arm/shoulder pulmonary embolism and to left and right knees (as referred to above, not tendered in view of defendant’s admission – PCB 134-140).
CURRENT POSITION
Plaintiff’s Affidavit – 28-08-2012 (exhibit D – PCB 43-47):(a)Following work injury in 1999 (was actually May 2000) has been in receipt of some WorkCover payments and disability pension. Was permitted to earn a small amount of money;
(b)Commenced work in 2007;
(c)Takes Panadol and occasionally Panamax, Panadeine Forte or Tramal;
(d)
Painful left shoulder. Difficulty lifting. Impaired sleep;
(e)Left elbow ongoing and variable pain.
03-11-2011 Assessed by Mr P Kudelka (exhibits H and J – PCB 84-89
17-08-2012(a)Findings on examination: Fixed flexion contracture of 35 degrees of left elbow and loss of 10 degrees supination PCB 85);
(b)
Will always have work-related partial permanent impairment of function of left elbow (PCB 85);
(c)Permanent restriction of movement and weakness of left elbow (PCB 88);
(d)Prognosis regarding left elbow guarded (PCB 88).
02-02-2011 Assessed by Mr A Stockman (exhibits F and G – PCB 82-83(c)
12-09-2012
(a)
Has ache in left elbow associated with flexion deformity of 35 degrees due to secondary degenerative changes seen on CT scan 25-02-2009 (PCB 83). Thus discomfort will continue indefinitely;
(b)12-09-2012 – Continues to complain of pain and reduced movement of left elbow (PCB 83(b)) which is the effect of the fracture of the radial head and neck and partial fracture of the capitulum (sic). Over past 18 months condition unchanged;
(c)Will continue to complain of pain in both shoulders and left elbow indefinitely. He claims such pain is severe (PCB 83(c)). Fit for light duties.
06-06-2013 Assessed by Mr M Avval – (exhibit O – PCB 129(a)-(b)):
· Still has painful left elbow and left shoulder.
27-08-2012Assessed by Professor Miron Goldwasser – (exhibit K – PCB 90-100):
Opinion: (PCB 96):
(a)
Suffered a significant injury to his left elbow with an interarticular fracture involving articular surfaces including the radial head and capitulum (sic) of the humerus. He cannot fully straighten his elbow. There is degenerative change in the left elbow. Sustained soft tissue injury of left shoulder;
(b)Unlikely to any significant change in his condition in the foreseeable future. There is evidence of degenerative change in the elbow and the natural tendency for these degenerative changes is to progress (PCB 98);
(c)He has tenderness on the capitulum (sic). He is unable to do heavy lifting or frequent repetitive use of his elbow (PCB 99).
07-06-2012Assessed by Mr Rodney Simm – (exhibits P and Q –
DCB 19-28):
(a)Extremely difficult historian;
(b)Worked for about three months in 2003;
(c)Work injury on 09-09-2007 after working for four days. Attended Northern Hospital. Gave a history of falling off a roof at home as he did not want to get Mr Prior in trouble;
(d)Examination of left elbow. Movement was restricted from 25 degrees of flexion contracture to 135 degrees;
(e)Opinion: Residual dysfunction of left elbow and left shoulder. Could have occurred as a result of claimed work injury. Could not lift and carry heavy objects in his left hand or do heavy “pick and shovel” work 10kgs limit.
27-06-2013 (DCB 28(a)-(d)):
History:
· 1999 Work-related low back injury
·1999 Assaulted with baseball bat. Ongoing neck injury
· 2003 RTW for approximately 11 months
· 09-09-2007 Fall at work for first defendant
December 2009:
· Fell off motorcycle
· Bilateral knee pain, LB.P, neck pain and nausea.
Present complaints:
· Ongoing constant LBP radiating into buttocks;
· Intermittent left shoulder pain;
· Intermittent discomfort in left elbow and unable to extend elbow;
· Both knees painful.
Examination:
· Pain behaviour less evident.
Opinion:
· Limited movement of left elbow consistent with fracture but no significant pain in movement;
· Takes 2 Panadeine Forte every 48 hours;
· Lifting capacity with left arm (repetitive) 5 kilograms – Bilateral 15 kilograms.
Left elbow:
· Severe injuries to left elbow with fractures of radial head and capitellum;
· Has residual elbow dysfunction consistent with fractures due to fall September 2007.
Left shoulder:
· Soft tissue injury to left shoulder;
· Work restrictions re heavy manual work.
The exhibits
39 The plaintiff tendered the following exhibits:
A Plaintiff’s chronology B Plaintiff’s statement of issues C Affidavit of the Plaintiff sworn 19-4-11 (PCB) 14-18) D Affidavit of the Plaintiff sworn 28-8-12 (PCB 43-47) E The Northern Hospital report dated 30-5-10 (PCB 50-52) F Report of Dr Stockman dated 2-2-11 (PCB 82-83) G Report of Dr Stockman dated 12-9-12 (PCB 83(a)-(c)) H Report of Mr Kudelka dated 3-11-11 (PCB 84-86) J Report of Mr Kudelka dated 17-8-12 (PCB 87-89) K Report of Associate Professor Miron Goldwasser dated 27-8-12 (PCB 90-100) L Reports of Dr Gray (PCB 101-110) M Report of Dr Unni dated 8-7-08 (PCB 112) N Report of Dr Fish dated 13-10-10 (PCB 124-129) O Report of Dr Avval dated 6-6-13 (PCB 129(a)-(b)) P Report of Mr Simm dated 7-6-12 (DCB 19-28) Q Report of Mr Simm dated 27-6-13 (DCB 28(a)-(g)) R Radiological reports (DCB 36-49) S Plaintiff’s written submissions
The Defendant’s case
40 The defendant tendered the following exhibits:
One Defendant’s admissions concerning surveillance conducted of the plaintiff 2 Report of Dr Scarlett dated 7-10-10 (PCB 75) 3 Report of Dr Scarlett dated 10-12-10 (PCB 76) 4 Report of Dr Scarlett dated 14-10-11 (PCB 77) 5 Report of Dr Tran dated 16-7-00 (PCB 78-79) 6 Report of Dr Hodgson dated 28-1-02 (PCB 80-81) 7 Report of Mr O’Brien dated 9-6-00 (DCB 1-3) 8 Report of Mr O’Brien dated 23-6-00 (DCB 4) 9 Report of Dr Wallin dated 4-1-01 (DCB 5-8) 10 Report of Mr Miller dated 27-1-01 (DCB 9-13) 11 Report of Mr Miller dated 21-2-01 (DCB 14) 12 Report of Mr Elsner dated 29-7-01 (DCB 15-18) 13 Centrelink documents (DCB 64-119) 14 Coolaroo clinical records 15 Fawkner Health Care clinical records 16 Defendant’s written submissions
Submissions
Submissions on behalf of the Defendant
41 I note the defendant’s submissions, as per exhibit 16:
“SUBMISSIONS OF THE DEFENDANT
1. POSITION
The Defendant’s position is that as a matter of range, based upon the consequences of the claimed injuries upon the Plaintiff, the Plaintiff does not meet the threshold of ‘at least very considerable’. In the present case, it is essential that consideration is had to the Plaintiff’s pre-injury circumstances in assessing what, if anything, has changed.
It is not a question as to aggravation of a pre-existing injury (in the Petkovski v Galletti sense). It is a question of whether in light of the plaintiff’s pre-existing injuries to his back and neck, and the absolutely debilitating consequences from them, the plaintiff now is in a state substantially different to what he was previously.
The defendant does not deny that an injury occurred which is significant. The Plaintiff has had to adapt his life to a modest degree. However, when one properly construes the consequences from the claimed injuries, the injuries do not meet the test of ‘at least very considerable’ as envisaged by the Court of Appeal in the decisions referred to herein.
2. THE RELEVANT LAW
By section 134AB(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which:
‘when judged by comparison with other cases in the range of possible impairments… may be fairly described as being more than significant or marked and as being at least very considerable.’
The Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
‘At lease very considerable’ means what it says. Are the consequences properly to be regarded as beyond significant. The Court must be affirmatively satisfied that they are indeed at least very considerable.
In Stijepic v One Force Group Aust Pty Ltd[2009] VSCA 181 Ashley JA and Beach AJA, adopted the reasoning of the Court in Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260 where it was observed that in considering whether a worker has established that he or she has suffered serious injury, the significance of what has been lost may to an extent be informed by what has been retained. At footnote 8 of the decision it was noted that an absence of any commonly claimed consequences may tell against a finding that the overall consequences are ‘at least very considerable’. Therefore, a ‘before and after’ analysis of the plaintiff’s life is to be conducted.
In Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12 at [78]-[80] Ross AJA (with whom Ashley and Mandie JJ agreed) said:
‘In this case the respondent has been able to return to full time alternative employment (indeed for a period he worked in the same job that resulted in his injury); play football with considerable success; engage in other sporting and social activities; and he had been able to adjust the way in which he uses his dominant hand so that he is largely able to perform everyday activities, such as reading and writing.
In making these observations I readily accept that the respondent’s life is not what is was pre-injury. He has had to adapt and in some respects he cannot perform some tasks as well as he could prior to his injury; and he suffers pain.
All in all, and taking full account of the respondent’s young age (a matter pressed by respondent’s counsel) I am not persuaded that such consequences, when judged by comparison with other cases in the range of possible impairments, can fairly be described as being more than significant or marked. It follows that the respondent’s injury is not a ‘serious’ injury within the meaning of s135AB(37)(a). The appeal must be upheld and the respondent’s application for leave to commence a proceeding dismissed.’
2. [sic] PRIOR TO THE INJURY
In 1999 the plaintiff was hit over the head with a baseball bat and has suffered neck pain ever since. He has been taking Panadeine Forte since then (T33 L31). His intake of medication, in particular Panadeine Forte, has not changed (T20 L11).
He has suffered not only 8 years of neck pain, but also back pain since an incident in 2000 for which he was on Workcover payments and then subsequently a disability pension (T32 L 7-17). He has had low back pain ever since (T33 L17). He was regarded by Mr Elsner as a potential candidate for back surgery in 2001 (DCB 12).
At DCB 101 Dr Ramsay (treating GP) noted an 8 year history of back and neck pain and the Plaintiff agreed with that (T33 L13-19). He has pain radiating to the legs and bottom (T33 L20, DCB 11).
As at 16 May 2007, approximately 15 weeks prior to the incident, he had a lifting restriction of up to 5kg. The plaintiff conceded he ‘didn’t pick up anything over 5kg anyway’ (T34 L22).
He had suffered at that time, prior to the injury, Depression and Migraines (T34 L29) and was prescribed Zoloft. He had broken sleep (T35 L8).
He stopped mowing the lawn in 2001 due to back pain (T36 L5, DCB 16). Now he does mow the lawn (DCB 22). His back pain was so bad that it was hard for him to stand in the same position at the same time (T36 L18).
As at 2003, Dr Shee opined that it was unlikely that he would work between 2003 and 2005 (T37, DCB 99). The plaintiff did not have a memory of that, but thought that that might be correct (T37). Dr Shee wrote:
‘He has back pain most of the time. He cannot stand in the same position for more than 5 minutes or sit for more than 10 minutes. His range of movement is reduced by half…He gets headaches when he bends over for which he takes Panadeine Forte. The pain affects his sleep, concentration and memory…is unlikely to be fit for full time open market employment for at least the next two years.’
He has suffered long term pain in his knees since he was 16 when he fell off a bridge (PCB 93) which was aggravated in the motor cycle crash at 100km/hr after the injury.
3. [sic] SINCE THE INJURY
The Plaintiff in the witness box demonstrated what the Defendant submits was a full range of shoulder movement. This was also noted by Mr Simm (DCB 23 & 28e).
Mr Simm (DCB 26) imposes a 10kg lifting limit. The plaintiff conceded that he can lift 10kg with the left arm for a short period (T18 L 28- T19 L12). Mr Simm noted that the left elbow movement was restricted but not painful (DCB 23). Mr Simm noted that he was able to carry 4 litres of fluid in the left hand for short period of time (DCB 28c).
The Court is often faced with what the Court of Appeal regards as ‘commonly claimed consequences’. The Plaintiff gave evidence of an ability to do the following:
- no issues cooking at home (T17 L8)
- no issues brushing his teeth
- No issue driving (he has driven to and from Phillip Island in one day (PCB 94 & T15 L6)
- No issues with his relationship with his partner due to the injury (T16) (issues did relate to historical issues not the subject of examination)
- no issues washing up (T17 L9)
- no issue socialising, going out, or other recreational activities, albeit he say that he is embarrassed. The embarrassment is not to be regarded under sub paragraph (a) and can thus be ignored for the purposes of the application [see s.134AB(38)(h)].
- Can stand at the sink and clean the dishes and do every day ‘stuff’ (T17 L12)
- Can wash clothes, but not as much (T17)
- Can vacuum (T27)
- Gardening (T17, PCB 94), mows the lawn and looks after the garden (DCB 22).
- Clean shower tiles with a scrubbing brush (T17)
- Wash the car
- Can do the shopping (T218 L12, PCB 94)
These activities are done with both hands, the right more than the left (T18 L7). The plaintiff has adapted his life style well.
The Plaintiff’s injury did not stop him from purchasing a 250cc dirt bike after the injury (TT23 L11). Nor did it stop him riding at 100km/h. The plaintiff was not concerned about his elbow in getting on the bike and he could ride the bike up to an hour (T21 L22). At that point the bike would cool down and then get back on it. He told As/Prof Goldwasser that a session of motor bike riding would last about three hours (PCB 91).
He has sold his dirt bike (T23 L3) and bought himself a quad bike (T22 L17). He told Mr Goldwasser that he used it for recreational activities and can manage about 15 minutes at a time (PCB 91).
He takes the same amount of medication now as he did before the accident (T20 L11) – ‘nothing has changed in that way. It depends how long I do stuff for’ (T13 L20).
The plaintiff gave evidence that he did complain about his elbow to his GP historically (T25). There is a complete absence of records about left elbow pain. The Plaintiff stated that there must have been a lack of reporting (T26). Dr Scarlett however reported in no uncertain terms at DCB 75-77 that he reported on 7 September 2007 (date of injury). He reported on 18 August 2008 for an unrelated matter. There was never any further mention of left elbow pain. Dr Scarlett does not merely note that his records do not reveal a complaint, Dr Scarlett unequivocally notes that there was no mention of such pain. At DCB 76, he asks ‘Are you sure you are corresponding with the correct doctor?’. Between the injury and February 2011 the Plaintiff attended at the practice approximately 30 times.
He is no longer taking Zoloft like he once was (T35 L3).
3. [sic] THE MEDICINE
The Northern Hospital report (PCB 51) notes that the plaintiff was taking Neurofen and Forte. He told Ass/P Goldwasser that he is currently taking one Asprin a day, Panamax two daily and finds it help his elbow and headaches. He said he is taking no other medications (PCB 94). He told Dr Fish that he had been taking 2 Panadol per day (PCB 126). According to the clinical records, all prescriptions for Forte and Tramal coincide with complaints regarding either neck or low back pain.
Mr Stockman, Rheumatologist, described the pain in the elbow as an ‘intermittent ache’ (PCB 82). As at 2 February 2011 Mr Stockman noted that ‘over the last few years Mr Trafford has had no treatment for the left elbow or shoulder. He seems to be coping with the pain. (PCB 83) The degenerative changes in the left elbow, which are mild at the present time are likely to worsen if he returns to work. However, I consider him being fit for non-repetitive work with the left arm. He should avoid lifting heavy objects.’ Mr Stockman reviewed the plaintiff on 12 September 2012, at that time his elbow was unchanged (PCB 83(c)). Mr Stockman notes that ‘he seems active around the house and would be fit to perform light work, on a part time basis, such as light cleaning job or security work.’ (PCB 83(c)). This is a greater capacity than Dr Ramsay given him in May 2007.
Mr Kudelka on 17 August 2012 regarded the injury to the Shoulders as transient and no significant permanent impairment can now be related to the incident (PCB 88). He believed that the plaintiff could probably work as a Forklift Driver (PCB 88).
4. [sic] CONCLUSION
The plaintiff takes Panadol as required and occasionally the use of stronger medication (para 13 PCB 4). There has been no change in the Plaintiff’s medication intake which has been dictated by his low back pain historically.
The plaintiff has not worked for any extended period since 1999. Nonetheless, medico legal opinion makes clear that he does a capacity for light work.
Indeed there has been a complete lack of complaint by the Plaintiff about his claimed injuries which is not surprising in light of the fact that his pain is intermittent and not bothering him. His treating GP, Dr Scarlett was seemingly surprised to be asked about the elbow. Similarly his GP Mr Avval took the view that the plaintiff has had an operation on his shoulder. This is incorrect. He refers to limitation of movement of the plaintiff’s shoulder and seems to have not examined his elbow. With regards to the lack of complaints and previous back pain, the court can refer to the Coolaroo clinical records typed from 10/3/00 - 25/7/08, and hand written notes from 13/8/97-17/2/03, and letter of 28 January 2002 to Zurich. The Court can also refer to the Fawkner clinical notes from 18 August 2008 through to 11 February 2011 and hand written notes.
In accordance with the principles in Stijepic, and for the same reasons expressed in Tatiara Meat Co Pty Ltd, this application should be dismissed.”
Submissions on behalf of the Plaintiff
42 I note the plaintiff’s submissions as per Exhibit S
“SUBMISSIONS OF THE PLAINTIFF
IMPAIRMENT RELIED UPON
1.Permanent serious impairment of left upper limb including left shoulder and left elbow.
COMPENSABLE INJURY
2.The Defendant conceded that the Plaintiff sustained an injury to his upper limb in the course of his employment with the Defendant Michael Prior on or about 7 September 2007.
PRE-EXISTING IMPAIRMENT
3.(a) The Plaintiff was assaulted in or about January 2009 with a baseball bat, and thereafter had neck pain and headaches.
(b)The Plaintiff was employed by Mebroll Pty Ltd, roofing contractors between approximately June 1999 and May 2000. In early 2000 he injured his low back in the course of such employment. He was subsequently examined by a number of specialists with respect to such injury i.e. Mr J.F. O’Brien, Dr M. Wallin, Mr R. Miller and Mr K. Elsner (see Exhibits 7-12) and Dr Tran (Exhibit 5) and Dr Hodgson (Exhibit 6).
Mr O’Brien – Opined he had a soft tissue strain to the lumbar spine and that he had basically recovered from such injury (DCB 2): Capable of modified duties.
Mr R. Miller – Opined he had suffered a musculo-ligamentous strain to the lumbar spine with a likelihood of disc injury (DCB 12): Not suitable for physical work.
Mr K. Elsner – Opined he may have sustained a soft tissue strain of his thoraco-lumbar spine (DCB 17): No work restrictions.
Dr Tran – Temporary back injury. Non-labouring work more suitable (PCB 79).
Dr Hodgson – Minor disc problem of lower thoracic spine. Should be capable of work that did not involve repeated bending and lifting (PCB 81).
(c) The Plaintiff did not return to any work save for cleaning work of approximately two weeks duration in May 2003.
(d) The Plaintiff has been a disability pensioner since 11 March 2003. See Exhibit 13:
Medical examinations:
31/03/2000
· Chronic neck and back pain (DCB 75-76).
09/06/2000:
· Back and neck pain (DCB 64-65).
16/05/2007:
· Chronic neck and back pain radiating into shoulder blades;
· Lifting capacity 5kgs (DCB 101-103).
CREDIT
4.It is submitted that no significant issues as to the Plaintiff’s credit have arisen and the Plaintiff refers to Exhibit 1, surveillance in June 2012 and May 2012 which was not shown.
5.Nature of injury to left upper limb sustained on or about 07/09/2007:
(i) The Plaintiff attended Northern Hospital on 07/08/2007 (Exhibits (e) – PCB 50) after attending Dr Scarlett earlier that day (Exhibit 2 – PCB 75).
(ii) Radiology:
·X-ray of left shoulder and elbow – 07/09/2007 – Exhibit “R” (DCB 49).
·CT scan of left elbow – 18/09/2007 – Exhibit ‘R’ (DCB 48).
(iii) On 25 September 2007 an arthrotomy of the Plaintiff’s left elbow was undertaken affixing two screws to fracture of left radial head and a single screw to fix the fracture of the capitalum (sic) – Exhibit (e) (PCB 51).
(iv) X-ray left elbow – 28/09/2007 – Exhibit ‘R’ (DCB 47).
(v) Admitted to Emergency Department of Northern Hospital on 30/09/2007 with pulmonary embolism – Exhibit (e) (PCB 51);
(vi) Discharged 02/10/2007.
(vii) See also report of Dr Fish – Exhibit (m) (PCB 124-129).
(viii) X-ray of left elbow – 01/10/2007 – Exhibit ‘R’ (DCB 42).
(ix) X-ray of left elbow – 11/10/2007 – Exhibit ‘R’ (DCB 41).
(x) In June 2008, the Plaintiff saw Dr Shelley Grey with respect to his left elbow – Exhibit “L” (PCB 109-110).
(xi) In July 2008, Dr Unni, Orthopaedic Fellow at Northern Hospital reported to Dr Grey – Exhibit ‘L’ (PCB 112), inter alia:
‘Given the fact that the injury was quite severe and he would have damaged a lot of his cartilage, it is inevitable that he will develop some arthritic as time progresses.’
(xii) X-ray of left elbow – 08/07/2008 – Exhibit ‘R’ (DCB 39).
(xiii) X-ray of left elbow – 08/12/2008 – Exhibit (e) (PCB 52).
(xiv) CT scan of left elbow – 21/01/2009 – Exhibit ‘R’ (DCB 38).
(xv) CT scan of left elbow – 19/05/2009 – Exhibit ‘R’ (DCB 36-37).
(xvi) On 24/07/2009 – Admitted to Northern Hospital where surgery was undertaken to the left elbow – Exhibit (j) (PCB 92-93).
Comment:
Although the Plaintiff may not have complained to Dr Scarlett with respect to his left elbow, the above demonstrates that it was the subject of treatment and radiology in 2007, 2008 and 2009.
(xvii) Further in Disability Pension assessment of 29/10/2007 it was noted at (DCB 117) that as a result of a recent fall, the Plaintiff had fractured his elbow which required the insertion of three (3) pins and was currently undergoing rehabilitation – Exhibit “13”.
(xviii) Further on 27/08/2013, the Plaintiff gave evidence that he wanted to get back into the workforce and took on employment in September 2007 – T20, L22-27.
CURRENT IMPAIRMENT OF LEFT UPPER LIMB
6(a) As at 07/09/2007, the Plaintiff was aged 37 years (D.O.B. 30/06/1970). He is currently 42 years of age.
(b)He complains of constant pain in his left elbow and left shoulder. Such complaints are consistent with medical opinion – Exhibits (f), (g), (h), (i), (j), (k), (l), (m), (o), (p) and (q).
(c)He awakes because of pain in his left shoulder – Exhibit (d) (PCB 46, paragraph 14). He avoids left-handed activities and has concerns about strength of left shoulder (PCBp46). Such complaints are consistent with medical opinion.
·Associate Professor Goldwasser – Exhibit (j) (PCB 98, paragraph 5).
·Mr Kudelka – Exhibit (i) – (PCB 88, paras. 2, 3, 4, 5 and 6).
·Dr Stockman – Exhibit (g) – (PCB 83(b) and (c)).
·Dr M. Avaal – Exhibit (o) – (PCB 129(a) and (b)).
·Mr Simm – Exhibit (q) – (DCB 28(f) and (g)).
(d) The Plaintiff cannot straighten his left elbow. This is consistent with medical opinion.
(e) Prognosis:
·Associate Professor Goldwasser – Exhibit (j). At (PCBp97):
‘There is evidence of degenerative change in the left elbow.’
At (PCB 98, paragraph 6):
‘It is unlikely there will be any significant change in his condition in the foreseeable future. There is evidence of degenerative change in his left elbow, and, in the long-term, there is a natural tendency for these degenerative changes to progress over time. This is likely to take many years.’
·Orthopaedic Fellow Dr Unni – Exhibit “L” – (PCB 112):
‘Given the fact that the injury was quite severe and he would have damaged a lot of his cartilage, it is inevitable that he will develop some arthritis as time progresses.’
·Dr Stockman – Exhibit (g) – (PCB 83(c)):
‘However, with time he may gradually develop more pain in the left elbow due to secondary degenerative changes and may require further surgery such as removal of the radial head.’
·Mr Kudelka – Exhibit (i) – (PCB 88):
‘2. Permanent restriction of movement and weakness of left elbow.
6. Prognosis for left elbow is guarded. He will always have pain, weakness and restricted movement, and a permanent impairment with respect to strenuous activity involving the elbow.’
·Mr Simm – Exhibit (g) – (DCBp28(g)):
Comment:
‘This is a very bleak outlook for a man aged 42 years.
SUBMISSION
7.Notwithstanding the Plaintiff’s pre-existing pain in his back, neck and shoulders, the nature of the injury to his left upper limb of itself and the consequences of this for him can only be described as “very considerable” when compared with other cases in the range of possible impairments or losses of function. Such impairment is quite different from that considered by the Court of Appeal in Bezzina v Trung Hi [sic] and TAC (2012) VSCA 161.”
Findings of Fact
43 There is no dispute as to the circumstances of injury and the nature of the injury. The plaintiff sustained a fracture of the radial head and neck and partial fracture of the capitellum.
The failure to tender surveillance evidence conducted of the Plaintiff
44 The rule in Jones v Dunkel[42] concerning the inferences that can be drawn from a party’s unexplained failure to call a witness who might be expected to have been called was explained in O’Donnell v Reichard:[43]
“[T]he law may be stated to be that where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person's evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person's evidence would not have helped that party's case; if the jury draw that inference, then they may properly take it into account against the party in question for two purposes, namely: (a) in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and (b) in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken.”
[42](1959) 101 CLR 298
[43][1975] VR 916 (FC) per Newton and Norris JJ at 929
45 In R v Lao,[44] Buchanan JA summarised the position:[45]
“[W]hen a party appears to be able to prove the true facts and fails to do so, in the absence of explanation, an inference which is open on the facts that is favourable to the other party may be more readily drawn.”
[44](2002) 5 VR 129
[45]at 139
46 In this case, there has been no explanation offered as to why the surveillance evidence was not tendered. In the circumstances, it is open to me, if I consider it appropriate, to infer that this evidence would not have assisted the defendant. Further, it is open to me to more readily accept the plaintiff’s evidence as to his claimed physical restrictions.
Findings concerning the Plaintiff’s credit
47 I am satisfied on the balance of probabilities that the plaintiff was an honest witness. I do not consider that he deliberately lied, skewed the evidence or manipulated his answers. I consider that the plaintiff was, for the most part, an accurate historian, but I further note that he has had memory issues, as documented in the evidence. Despite his memory problems, much of the plaintiff’s account of the extent of the injury consequences is supported by the medical evidence. I do not consider that he exaggerated. If anything, he has tried to get on with his life, freely conceding that he has adjusted to take account of his physical limitations. He is a man of limited education, doing the best he could to explain his problems. I found he had difficulty in expressing himself at times. It was not suggested to him in cross-examination that he was feigning or that he was capable of doing more than he claimed. I am prepared to more readily accept the plaintiff’s account of his physical limitations in view of the fact that surveillance of him was undertaken on behalf of the defendant, yet no such evidence was tendered. However, this point has not loomed large in my assessment of the plaintiff’s credit.
Consequences of the injury
48 I have taken account of all of the evidence. I have considered the plaintiff’s “before” and “after” incident circumstances. I have considered what the plaintiff has retained as well as what he has lost. I have taken account of his experience of pain and of its disabling effect.
49 I have referred to the injury consequences earlier when referring to the topics covered in cross-examination of the plaintiff, and I will not repeat them. I have also discussed them with counsel. I will not repeat counsel’s arguments. Suffice it to say for present purposes that I reject Mr Seeman’s interpretation of the evidence concerning some of the matters that he claims do not affect the plaintiff. In particular, I am satisfied that the plaintiff’s sleep, sex-life, capacity to lift and do grocery shopping, shower himself and wash his car and do laundry have all been affected. I am satisfied that before the incident, the plaintiff’s life was affected by consequences unrelated to the incident, as described by Mr Seeman. I am however satisfied that whatever the extent of the previous limitations resulting from unrelated conditions, they did not prevent the plaintiff from returning to work in September 2007, just days before the incident. He worked as a labourer. On the day of the incident, he was doing hard physical work, using a grinder at height on a demolition site. He had no problems using his left elbow then or before. He had no work restrictions affecting either his left elbow or his left shoulder. I do not know how heavy the grinder that he was using was, nor for how long had he been using it. It is not disputed that the plaintiff had been working at this demolition site for more than two days. The plaintiff’s working life has been very much affected. He is a man whose only work experience is as a labourer. All experts agree that the plaintiff can no longer engage in that line of heavy work. He is limited to light physical duties (and then, probably only part-time). I am satisfied that his range of elbow movement is restricted and that his strength has been reduced.
50 As to his pain consequences, I am satisfied that the plaintiff experiences pain in his elbow and shoulder in the manner he described. He takes medication for the pain. He is restricted in the nature of medication that he can take because of his gastrointestinal and other problems. As a consequence, he may have to endure pain that might otherwise have been alleviated by different medication.
51 I am also satisfied that the plaintiff still has two screws in his elbow, and that further surgery may be required in the fullness of time, for the reasons described by Dr Stockman[46] and Professor Goldwasser.[47]
[46]exhibit G
[47]exhibit K
52 I am satisfied that his condition is permanent.
53 Otherwise, I accept the plaintiff’s submissions and adopt them.
Conclusions
54 I am satisfied that the plaintiff has suffered a serious injury as result of the industrial accident he suffered when employed by the defendant on 7 September 2007. I propose to grant leave to issue common law proceedings for pain and suffering damages.
Orders
55 I will hear counsel as to the form of the order and on the question of any consequential orders.
- - -
0
24
0