Tucker v Associated Kiln Driers Pty Ltd (t/a Akd Softwoods)
[2020] VCC 168
•4 March 2020
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-04348
| BRETT JASON TUCKER | Plaintiff |
| v | |
| ASSOCIATED KILN DRIERS PTY LTD (trading as AKD SOFTWOODS) | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 10 April 2019 | |
DATE OF JUDGMENT: | 4 March 2020 | |
CASE MAY BE CITED AS: | Tucker v Associated Kiln Driers Pty Ltd (t/a AKD Softwoods) | |
| MEDIUM NEUTRAL CITATION: [First Revision 5 May 2020] | [2020] VCC 168 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 in respect of pain and suffering – right wrist injury
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67; Acir v Frosster Pty Ltd (Ruling) [2009] VSC 173
Judgment: Leave granted to the plaintiff to issue proceedings for pain and suffering damages as a consequence of a work-related injury to his right wrist on or about 29 May 2007.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab with Ms R Dal Pra | Petersons Lawyers |
| For the Defendant | Mr D McWilliams with Ms K M Manning | Wisewould Mahoney |
HIS HONOUR:
1 The plaintiff brings an action pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”) for leave to commence a claim for damages for pain and suffering only with respect to a right wrist injury he suffered in the course of his employment with the defendant on or about 29 May 2007.
2 In bringing such an application, the plaintiff must prove that he suffered a “serious injury” in terms of the Act, which states:
“serious injury means —
(a) permanent serious impairment or loss of a body function … .”
3 The application is supported by three affidavits of the plaintiff, sworn 9 February 2017, 7 March 2018 and 9 April 2019 (Exhibit “A”). The plaintiff also relies on a number of medical reports from treating doctors, together with a number of reports from medico-legal practitioners and radiological results from investigations of the right wrist.
Background
4 The plaintiff was born in July 1970 and was thirty-six years old at the time of his injury on 29 May 2007. He completed Year 11 at Colac Technical School and thereafter has largely relied on his ability to undertake manual-type work to earn a living. He was out of work for a period where he was a “stay at home” father caring for his children. He returned to work in 2005 as a cleaner with the defendant. His job involved having to clean offices, toilets and the environs of kilns.
5 On 29 May 2007, the plaintiff suffered injury to his right wrist. He was shovelling sawdust that was under a kiln. He alleges there was a problem with the handle, such that he suffered a twisting, jarring injuring to his wrist.
6 Subsequently, the plaintiff attended his general practitioner, Dr Griffith, who ordered an x-ray of his wrist. He was put off work. His employment was subsequently terminated in July 2007.
7 It was common ground the plaintiff had suffered from pre-existing psychiatric problems and continued to suffer from same after his employment was terminated.
8 The plaintiff had been referred to a surgeon soon after his injury for treatment to his wrist, but failed to follow through with that treatment.
9 It was common ground that he was out of work for a number of years, principally for psychological reasons not connected with the injury.
10 In any event, the plaintiff alleges he continued to suffer from pain and loss of function with respect to the wrist, and in 2016, he re-engaged in treatment for his wrist when he was referred to plastic hand surgeon, Mr Anthony Berger. The plaintiff has tendered seven reports from Mr Berger between the dates 24 March 2016 and 31 October 2017.[1]
[1]Exhibit “D”
11 Mr Berger undertook arthroscopy surgery of the wrist on 21 April 2017 and the plaintiff underwent further surgery at his hands on 15 September 2017, which involved the removal of a ganglion. Apparently after the surgery, he had some triggering of his thumb and Mr Berger gave him a cortisone injection.
12 The plaintiff’s case is that he has continued to be troubled by wrist, hand and forearm pain, with movement of the wrist remaining restricted. The plaintiff alleges he has activity-related restrictions in terms of lifting, pushing and pulling of his dominant arm. In particular, it is alleged the injury has affected his capacity to engage in his hobby, which was maintaining and repairing old cars. He has also been unable to engage in sporting activities such as playing golf and tennis and having a kick of the football with children in the street.
13 It would appear that he has been unable to return to work, mainly because of his mental health, which is unrelated to the injury.
14 Accordingly, both counsel agreed that the principal issue in the case was whether the consequences of the accepted wrist injury could fairly be described as “very considerable”.
The Plaintiff’s affidavits
15 After suffering the injury, the plaintiff swore:
“I was referred to Dr Robert to have surgery in approximately August, 2007. I didn’t turn up for surgery due to my psychological state.
I remained under the care of Andrew Winter over the years firstly by WorkCover and subsequently through a Mental Health plan. I see him every 3-4 weeks. I take anti-depressant medication from my General Practitioner.
I have continued to suffer from ongoing right wrist and arm pain from 2007 to date.
I get pain located at the base of my thumb as it joins the wrist. I get pain up into my forearm and arm. I get tingling and numbness in my fingers but not pain down into the hand.
I have noticed it has slowly deteriorated over the years.
I treated it conservatively by using a wrist brace and pain killers.
I didn’t engage with people and locked myself away in my house from society due to my psychological state.
I have been able to cope a lot better over the last couple of years with assistance from ERMHA.
I decided to deal with my wrist injury and re-engaged with my General Practitioner who referred me to Mr. Berger, Hand Surgeon. He arranged x-rays in early 2016 which (I believe] showed significant osteoarthritic changes in the scaphoid area being the site of my initial wrist injury.”[2]
[2]Exhibit “A”, plaintiff’s first affidavit, sworn 9 February 2017, Plaintiff’s Court Book (“PCB”) 30-31
16 In his second affidavit sworn 7 March 2018, the plaintiff relates that Mr Berger performed surgery at the Epworth Hospital on 18 September 2017. He swore:
“I was in for the day and released into the care of my general practitioner at the Colac Medical Centre.
It took four or five weeks post operatively before I was reassessed by Mr. Berger and I then undertook physiotherapy which I am still doing.
I have had a good result in terms of pain. Pre-operatively the pain was really bad. I now am left with a constant ache but not the severe stabbing pain. I understand the removal of ganglions have helped reduce that pain. I also attend the Pain Clinic.
I have a lot of stiffness and weakness in the wrist/arm.
I also notice my hand sits at a funny angle when I flatten my hand.
I understand I had arthritic changes which was cleaned out as part of the surgery but understand it will recur in the future as the wrist continues to degenerate.
I do not believe I can return to manual work performing any heavy or repetitive work involving my right arm.
I live alone. I do what I can around the home. I do basic chores and get help from friends or neighbours to mow the lawns or other tasks that I am not able to do.
I have difficulty doing tasks involving dexterity of my hand such as peeling potatoes or using a screw driver.
I also find it tender or sensitive if I knock my hand. It is like when you hit your funny bone but the pain doesn’t go away.
I avoid playing sports such as golf or tennis or a kick of the footy which I used to do socially.
My main hobbies pre-injury were tinkering with cars, bikes and breeding animals. I have tried recently to have a go after my surgery but struggled handling the tools.”[3]
[3]Exhibit “A”, plaintiff’s second affidavit, dated 7 March 2018, PCB 32-33
17 In his third affidavit sworn 9 April 2019, the plaintiff swore:
“I still live alone. I continue to have mental health issues. I have the assistance of a carer for my mental health issues one to two days a week. Nicola, my carer keeps me on top of things and takes me appointments. I still have to care for myself and look after my own home.
I continue to suffer from daily constant pain in my right wrist arising from my injury, particularly with use and activity. The pain is regularly 4/10 on the pain scale. I develop flare ups of pain with use where the pain can be 7/10.
The more I use it the more pain I get in my wrist. I have to rest to reduce the pain.
My hand and wrist remain sensitive and I develop worse pain if I use my hand and with cold weather.
My right wrist is stiff and I continue to have weakness in my wrist and hand. I find that lifting items with my right hand increases the pain and I tend to rely now on my left hand. I drop things at times that I am holding in my right hand. I feel like I have light fingers, I call it “cauliflower hands”.
I get pins and needles in my fingers.
I have had variable pain and restriction in my wrist since my injury in 2007.
If I use my right hand, particularly, repetitively, I develop pain.
My ability to use my hand for fine motor skills is reduced. If I write for any length of time I develop pain.
I struggle to undertake household chores. I no longer have a garden. I do housework, bit by bit, but I do develop pain when undertaking tasks such as vacuuming, using the mop and doing the dishes.
I get worse pain in my wrist if I drive for longer distances or where I have to turn the wheel a lot.
I am restricted in my ability to return to repair and maintenance of cars that I enjoy. I have sold the cars.
I take Pregabalin and Seroquel to help me cope with my symptoms. At times I find it difficult to fall asleep due to wrist pain.
I continue to have hand therapy.
I use a heat cream on my wrist to try and relieve the pain. I have a wrist support which I use intermittently.
I continue to undertake regular exercises with my wrist and hand at home.”[4]
[4]Exhibit “A”, plaintiff’s third affidavit, dated 9 April 2019, PCB 34b and 35c
Cross-examination of the Plaintiff
18 Under cross-examination, the plaintiff agreed that he had struggled significantly with psychological problems as far back as 2007, and, indeed, before that. He also agreed that he continued to get counselling up until the present time, in relation to his psychological problems. The plaintiff further agreed that he had difficulty getting out of the house because of his psychological condition, which has been the case since before he started working. He also agreed he took Seroquel for his psychological condition and that he had been diagnosed with a Bipolar Disorder in the past.
19 The plaintiff also agreed that he took Pregabalin for headaches as prescribed by his general practitioner.
20 The plaintiff further accepted that he first suffered injury to his right wrist and that he took Panadeine Forte, but had not taken that for many, many years in relation to his wrist.[5]
[5]Transcript (“T”) 9, Line (“L”) 8
21 The plaintiff further stated that approximately a year after his injury, he was told by his general practitioner he would be right to go back to work.[6]
[6]T9, L17
22 Also, between June 2009 and February 2013, the plaintiff did not see any doctors at all in relation to pain in his wrist.[7]
[7]T10, L25
23 The plaintiff agreed he had a certificate in retail selling and it was something that he would like to do. He accepted, however, that it was his psychological condition which was stopping him from pursuing work.[8]
[8]T14, L22
24 The plaintiff agreed that the pain in his wrist had improved following operations.
25 When asked whether it would be fair to describe the pain that he is left with as a dull ache, the plaintiff agreed, and stated further, “It’s permanent”.[9]
[9]T17, L30
26 The plaintiff agreed that he had not played golf since his injury, but also agreed he would not be able to play golf because of his difficulty getting out of the house because of his psychological state.[10] He agreed that it was the same situation with respect to tents.[11]
[10]T18, L13
[11]T18, L18
27 The plaintiff conceded he had tried playing golf by having a “tap” in his backyard approximately a month ago. When he asked about his ability to hit a driver, he stated: “It wouldn’t go too good, because the putting doesn’t go too good”.[12]
[12]T19, L1-4
28 The plaintiff also agreed that the last time he had a kick of the football was before his injury. He agreed he would be restricted in that activity because of his psychological condition, “and the pain in my wrist, because I can’t catch”.[13]
[13]T19, L21-22
29 When cross-examined about his hobby of repairing cars, the plaintiff was asked “Did you sell them for financial reasons?” and he replied “No, because I couldn’t do the things I used to do on them. Couldn’t undo the nuts and bolts and screws”.[14] Further, he agreed he sold both his cars around ten years ago and explains “I just got fed up with it all, no – not being able to do it all kind of thing, and it sitting around and I thought I’d had enough, so I - - -”.[15] When asked whether it would be fair to say that he got rid of the cars because he did not have any need for them, he replied “They were good hobbies and good for me mind and keep me active kind of thing”.[16] He was further asked:
Q:“Now, it would be fair to say, wouldn’t it, that when you got rid of your cars you didn’t have any need for them because, one, you weren’t going out that much anyway? Would that be correct to say? Do you agree with that?‑‑‑
A:Yes.”[17]
[14]T21, 5-7
[15]T21, 20-22
[16]T22, L27-29
[17]T22, L2-6
30 Further, the plaintiff was cross-examined as follows:
Q:“Now, of course in relation to your wrist, you say that you weren't able to tinker with the cars as you would have liked. That's correct?‑‑‑
A:Yes.
Q:But there were other things preventing you from enjoying your cars, and in particular your mental condition. That's right?‑‑‑
A:Mainly the pain in me wrists.
Q:But you weren't able to – because part of the enjoyment you used to get out of your car is not only tinkering with them, but you used to like to drive them as well?‑‑‑
A:Yes.
Q:And your mental condition was stopping you getting out of the house and driving places, wasn't it?‑‑‑
A:Yes.
Q:So, you'd accept, wouldn't you, that you weren't able to enjoy your cars as you once did not only because of your wrist, but also because of your mental condition?‑‑‑
A: Yes.”[18]
[18]T22, L7-24
31 The plaintiff was further asked:
Q:“You say that you use a heat cream on your wrist?‑‑‑
A: Yes.
Q: Is that like Deep Heat, is it?‑‑‑
A: Yes.
Q: You rub that on to warm the wrist up?‑‑‑
A: Yes.
Q: How often do you use that?‑‑‑
A: Every day.
Q: When do you use it? Do you put it on in the morning?‑‑‑
A: Yes.
Q: And that's it?‑‑‑
A: Sometimes during the day.
Q: But at best it would be twice a day, would it?‑‑‑
A: Yes.
Q:And that's something that you just get from your chemist and you put on because it warms it up and makes it feel a bit better. Is that right?‑‑‑
A:Yes.”[19]
[19]T23, L20-29
32 The plaintiff was then asked what sort of hand therapy he had, and he replied:
“A:This putty stuff. Yeah, I – putty stuff that you twirl around in here for strengthening fingers, hands.
Q:It’s like a squishy ball, is it?‑‑‑
…
A:Yes, Rebuilds strength.”[20]
[20]T23, L30-T24, L5
33 The plaintiff performs his putty exercises every day for ten or fifteen minutes once a day.[21]
[21]T24, L13-18
34 The plaintiff said he still sees his hand therapist, it used to be once a month, but the next one is in two months’ time.
Re-examination
35 When asked about his hobby or interest with cars being good for his mind, the plaintiff was asked in what way it was thus, and he replied: “Physically active”.[22] He also stated that he had been interested in working on cars since he was a child, and before he suffered injury he would have worked on the cars every day “if I could”.[23]
[22]T26, L25-26
[23]T27, L4
36 When asked how important this activity was to him, the plaintiff replied “very important”.[24]
[24]T27, L5
37 Prior to suffering his injury, the plaintiff intended to build up his panel van from its stripped-down position. The work he had performed for that stage was “Motor-wise, gear boxes, pull motors out”.[25]
[25]T27, L14
38 When asked what sort of tools he had to work on with cars, he replied “Spanners, shifters, wrenches, tension wrenches”.[26] When asked how he would go using those tools now, the plaintiff replied “No good now ’cause I haven’t got leverage like I used to have … I used to use a lot of manual lifting by hand and move and manoeuvring”.[27]
[26]T28, L1
[27]T28, L1-6
39 When asked how he would go doing that sort of activity now, the plaintiff replied “No good … Because of the pain and I haven’t got the strength to lift over 5 kilograms”.[28]
[28]T28, L7-9
40 When asked how he felt when he sold the cars ten years ago, the plaintiff replied “Shattered. I still am actually.”[29]
[29]T28, L19
41 If the plaintiff had not suffered injury to his wrist, he stated his activities would be, with respect to the cars, “Driving around, pulling motors out, fixing things up, doing them up, replacing parts”.[30]
[30]T28, L21-23
42 When asked why putting in the backyard did not go so well, and what was the problem, the plaintiff replied, “Feel the jar go up through my thumb and through my wrist, and it goes up to my elbow”.[31]
[31]T30, L29-31
43 When asked if his wrist was alright, what would he be doing today about his golfing activities, the plaintiff replied: “I’d be able to bash it across the oval – football oval. We do stuff like that kind of thing, see how far you can hit.”[32]
[32]T31, L3-5
44 When asked to explain further about the dull ache he has in his wrist, the plaintiff was asked, “What is your pain level generally in your right wrist?”[33] And he answered “Around a four. I’m in pain 24/7.”[34]
[33]T32, L6-17
[34]T32, L17-18
45 As to the sort of activities which cause worse pain, the plaintiff replied “Doing my dishes … Just mopping floors, just general housework.”[35]
[35]T32, L19-21
46 When the plaintiff was asked about the stabbing pain that improved after the surgery, he was asked whether he still gets any stabbing pain and he replied, “Yes … Every day”.[36]
[36]T33, L4-5
47 When the plaintiff got the stabbing pain, he was asked what level of pain he suffered, and he replied, “Eight. Seven, eight”.[37]
[37]T33, L7
48 With respect to the Pregabalin which was prescribed for his headaches, the plaintiff replied that it was also of benefit for his wrist in providing pain relief.[38]
[38]T33, L8-12
Medical opinions
49 The defendant had the plaintiff examined by experienced hand surgeon, Mr Damian Ireland, on 15 August 2018, who reported to the solicitors on 20 August 2018.[39] Mr Ireland reported a consistent history of the plaintiff being referred to Mr Anthony Berger, specialist hand surgeon, who had diagnosed a ganglion cyst secondary to early arthritis of the volar aspect of the right wrist scaphotrapezial joint.[40] Mr Ireland noted that Mr Berger:
“… treated Mr Tucker with a cortisone injection without any significant benefit. He was referred to hand therapy for splinting which affected some minor relief. The symptoms continued more or less unchanged. He then underwent surgical treatment by Mr Berger on 18 September 20] 7 to remove a volar ganglion cyst and to debride the volar aspect of the scaphoid trapezium trapezoid joint. Mr Tucker is ambivalent as to whether or not the surgical procedure has led to any symptomatic relief.”[41]
[39]Exhibit 1
[40]Exhibit 1, Defendant’s Court Book (“DCB”) 23
[41]Exhibit 1, DCB 23
50 As to current complaints, Mr Ireland noted the plaintiff complained of pain on the palmar and radial aspect of the wrist which is constant. This was aggravated by any use of the right hand, and the pain radiates distally into the thumb and proximal end of the mid forearm. The plaintiff also complains of cramping of the fingers with use of the right hand and intermittent generalised swelling of the hand.[42]
[42]Exhibit 1, DCB 23-24
51 Mr Ireland noted that –
“Mr Tucker’s major problem currently is his psychological issues including depression and suicidal tendencies that requires constant support of a mental health support worker.”[43]
[43]Exhibit 1, DCB 24
52 On examination, Mr Ireland noted there was no work callus on either hand and there was tenderness over the volar radial surgical scar.[44]
[44]Exhibit 1, DCB 24-25
53 Mr Ireland’s diagnosis was of:
“… minor wrist dysfunction following ganglion cyst and osteoarthritis at the scaphoid trapezium joint treated surgically.
…
The worker's present condition at the right wrist is restriction of motion following surgical treatment for ganglion cyst caused by underlying osteoarthritis at the scaphoid trapezium joint treated surgically.”[45]
[45]Exhibit 1, DCB 25
54 As to the work relationship, Mr Ireland stated:
“The stated mechanism of injury and the subsequent clinical presentation are consistent. It is probable that the traumatic incident described in the report above aggravated the underlying but previously symptom-free condition of early osteoarthritis at the scaphoid trapezium joint causing a ganglion cyst to develop.”[46]
[46]Exhibit 1, DCB 26
55 The defendant also had the plaintiff examined by senior consultant surgeon, Mr Philip Sharp, on 16 June 2018, who, in turn, reported to the defendant on 22 June 2018. This report was in fact tendered by the plaintiff.[47] Mr Sharp took a history of the subject injury on 29 May 2007, and noted the plaintiff went off work on 1 June 2007 and remained off work. On examination, he noted that movement of his left wrist was normal, but movement of his right wrist flexion, extension and radial denervation was to 10 degrees and ulnar deviation to 30 degrees. He also noted the plaintiff was tender over the radiocarpal joint region.[48]
[47]Exhibit “E”
[48]Exhibit E, DCB 5
56 As to the diagnosis, Mr Sharp commented “He has possible osteoarthritic changes affecting the right radiocarpal region of his hand”.[49] As to work relationship, he stated “He may well have wrenched his right wrist as a result of the incident that occurred in May 2007. He continues to have symptoms since that time.”[50] Further, he stated “I do not believe he can return to work in his pre-injury duties or hours”.[51]
[49]Exhibit E
[50]Exhibit E
[51]Exhibit E
57 Mr Sharp went on to state “I do not believe he has a current work capacity”[52] and:
[52]Exhibit E, DCB 6
“I do not believe he will ever return to work in the future.
…
He has no current work capacity due to ongoing pain and restriction of movement in his right wrist. He also has some psychological problems of which I am not qualified to discuss further.
…
I do not believe his capacity for work including return to work should be reviewed in the future as it is unlikely he will return to work any time in the future.
…
It would be useful if functional outcomes could be provided for the osteopathy otherwise I believe his current treatment appears to be appropriate.”[53]
[53]Exhibit E, DCB 7
58 The defendant also had the plaintiff examined by psychiatrist, Associate Professor Shashjit Varma, who assessed him on 18 June 2018 and reported on 25 June 2018.[54]
[54]Exhibit 3
59 Associate Professor Varma considered that the plaintiff:
“… suffers from chronic adjustment disorder, which is partly, minimally, related to his work related injury, but mostly it is the continuation of his pre-existing psychological problem from his past history of psychological trauma, unstable mood and some depression before the employment.”[55]
[55]Exhibit 3, DCB 15
60 Further, Associate Professor Varma stated:
“From a purely work related psychiatric point of view, the worker can return to his pre-injury duties and hours. However, from the right wrist point of view, I will have to leave it to the hand therapist or the surgeons.”[56]
[56]Exhibit 3, DCB 15
61 Finally, the defendant tendered a report of Dr Gary Davison, occupational physician, who reported to the defendant on 26 June 2009.[57] Although this report relates to a period before the plaintiff re-engaged with his medical treatment in 2016, it does relate to treatment at that time. Dr Davison stated:
“Mr Tucker continues to have physiotherapy every 3 weeks. The treatment appears to aggravate his condition as he said, ‘I walk out in mega pain’. He takes Panadeine Forte twice daily for pain relief, as well as Efexor and Nitrazepam at night for ‘depression’. He tries to exercise the right hand as often as possible and has a small stress ball to grip on to”.[58]
[57]Exhibit 4
[58]Exhibit 4, PCB 99
62 Further, Dr Davison stated:
“The only past surgical history was that of appendicectomy. He denied any previous history of traumatic injury. Prior to his injury he enjoyed undertaking mechanical repairs and was able to repair all things mechanical in regard to motor vehicles.”[59]
[59]Exhibit 4, PCB 99
63 At that time, Dr Davison reported:
“I could not find any objective evidence of an injury to the right wrist or forearm today. It must be noted that the examination was restricted and that I did not have access to radiological investigations. The worker became verbally aggressive when I responded to his question about the presence of an injury and I told him that I was unable to see any evidence of an injury. He then indicated that he would be instructing his solicitor to sue me.”[60]
[60]Exhibit 4, PCB 100
64 As to whether the plaintiff’s then current condition was work related, Dr Davison replied:
“I could not find any objective evidence of a current work-related physical injury. I would be grateful if you could provide me with any further clinical evidence by way of investigations or reports from previous treating doctors in regard to this man's alleged right upper limb work-related injury.”[61]
[61]Exhibit 4, PCB 101
65 There is no evidence before me that the defendant replied to this request. In evidence before me is an x-ray of the right wrist report dated 14 June 2007.[62] The report recites, inter alia:
“There does appear to be periarticular cyst formation at the scapho-trapezial joint laterally.”[63]
[62]Exhibit “B”
[63]PCB 57
66 This report was available to Mr Ireland when he reported on 20 August 2018 and, in my view, is consistent with his view then expressed:
“… It is probable that the traumatic incident described in the report above aggravated the underlying but previously symptom-free condition of early osteoarthritis at the scaphoid trapezium joint causing a ganglion cyst to develop.”[64]
[64]Exhibit 1, DCB 26
67 Accordingly, I consider that the opinions expressed by the defendant’s medical practitioners are consistent with the clinical presentation of the plaintiff, as described in his affidavit and oral evidence in Court.
68 Further, it appears to me that the clinical picture is also supported by seven reports of the treating hand surgeon, Mr Anthony Berger, referred to above.[65] In his first report dated 24 March 2016 to the general practitioner, Mr Berger recites:
“… He presents with pain in the radial aspect of his right wrist and a lump over the FCR tendon and the scaphotrapezial joint. This has been present for about seven years and was aggravated by some heavy and repetitive shovelling. On examination he is quite tender over the scaphotrapezial Joint and along the FCR tendon. He may have a small ganglion arising from the scaphotrapezial joint. X-rays taken today show very mild osteoarthritis of the scaphotrapezial Joint. I think this arthritis is the cause of his pain rather than the ganglion. I think the first option would be to look at an X-ray guided Cortisone Injection into the joint and I have given him a form to have that done locally and I have asked him to call back If any problems persist.”[66]
[65]Exhibit “D”
[66]Exhibit “D”, PCB 76
69 After the second lot of surgery, the latter being for the removal of the ganglion, Mr Berger reported to the general practitioner on 31 October 2017 as follows:
“I reviewed Brett again on 31st October 2017 now six weeks following his surgery. The STT joint was quite arthritic in its anterior component and this was removed along with the interosseous ganglion. Overall, Brett's pain is much better and his movement is steadily increasing and I am sure it will continue to improve. In the meantime, he has developed quite severe triggering of the right thumb. We injected the triggering with local anaesthetic and Depa Medrol and hopefully that will settle the problem down. I have asked him to call back if any problems persist.”[67]
[67]Exhibit “D”, PCB 82
Findings
70 I accept that the plaintiff gave his evidence in a straightforward manner and I did not receive the impression that he was trying to mislead the Court in any way.
71 As a result of the subject injury in 2007, I consider that the mechanism of injury is as described by Mr Ireland at page 5 of his report referred to above,[68] and is probably permanent, in that, at the very least, osteoarthritic changes in his wrist have been rendered symptomatic by the subject injury, and that remains so, and will in the future.
[68]Exhibit 1, DCB 26
72 There is no doubt that consequences relating to his psychological condition have to be disentangled from his right wrist condition as per the authority of Peak Engineering & Anor v McKenzie.[69]
[69][2014] VSCA 67
73 However, the physical injury has resulted in the plaintiff incurring a reduced capacity to undertake remunerative physical work and has removed the opportunity for him to enjoy his hobby of restoring cars and playing golf. The fact that he is severely restricted from moving out of his home because of his psychological condition, in my view, does not detract from the physical consequences of the injuries described above.[70]
[70]See Acir v Frosster Pty Ltd (Ruling) [2009] VSC 173 per J Forrest J; also see Peak Engineering & Anor v McKenzie (supra)
74 The physical consequences of the subject injury, thus described, lead me to the conclusion that the plaintiff has proved that the consequences of his right wrist injury can be fairly described as being “more than significant or marked” and as being “at least very considerable”. Accordingly, leave will be issued as sought.
75 I will hear the parties as to any ancillary orders.
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