Uysal v Leading Spinners Pty Ltd

[2010] VCC 1032

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-09-05012

CESUR UYSAL	Plaintiff
v
LEADING SPINNERS PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	20 July 2010
DATE OF JUDGMENT:	23 July 2010
CASE MAY BE CITED AS:	Uysal v Leading Spinners Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VCC 1032

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(16)(b) – serious injury application – nature and extent of injuries – identification of consequences of organic injury to the right arm – reliability of evidence given by plaintiff in issue – application in respect of pain and suffering only.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G A Lewis SC with	Grando & Breheney
Mr L R Paine
For the Defendant	Mr J L Batten	Hall & Wilcox
HIS HONOUR:

1          In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages for the pain and suffering consequences of an injury sustained in the course of his employment with the defendant and in particular during April 2004. The injury relied upon by the plaintiff is an injury to the right elbow in the form of epicondylitis, and the loss of body function relied upon is that of the right elbow and arm.

2          In the application, the plaintiff attended for cross-examination. Otherwise the parties relied upon affidavits, medical reports and other records tendered by them, together with video surveillance of the plaintiff.

3          In support of the application, the plaintiff relies upon two affidavits, sworn 22 June 2009 and 13 July 2010 respectively.

4          In his first affidavit, the plaintiff deposed as follows:

• He was thirty-eight years of age, having been born in Turkey on 15 June 1971. He said that he completed high school in Turkey and then commenced a four-year electrician’s course but completed only two years of that course before he went into compulsory national service. He migrated to Australia in 1995 and said that his only employment since arriving in Australia had been with the defendant, with whom he commenced employment as a packer in July 1996.

• In the course of his employment with the defendant, he was responsible for packing spools of yarn into boxes which were placed onto pallets. He described his work as being strenuous and repetitive and said that it had to be performed at a fast rate. He said that as the result of performing the work, he commenced to experience pain in his right elbow early in April 2004.

• Shortly after the onset of his symptoms, he attended his general practitioner, who managed his condition with the use of anti-inflammatory cream and also referred him for an ultrasound of his right elbow. The plaintiff said that by 18 June 2004 however, the pain in his elbow had increased and he consulted Dr M Ahmet, a general practitioner, who arranged for an injection of steroid into his elbow which provided him only with short-term relief. Subsequently, Dr Ahmet referred the plaintiff to a surgeon, Mr John Owen, who, in September 2004, injected a local anaesthetic and steroid into his right elbow on two occasions.

• He continued in employment with the defendant until 4 November 2004, at which time he ceased work and lodged a WorkCover claim which was subsequently accepted on behalf of the defendant.

• On 29 January 2005, he underwent nerve conduction studies, and on 24 February 2005, he underwent an MRI scan on his right elbow. Subsequently, Mr Owen operated upon his right elbow at the La Trobe Hospital on 26 May 2005.

• Although following his operation he achieved some initial improvement, the operation did not lead to any long-term improvement in the pain, stiffness or limitation of movement which was present in his elbow.

• On 25 September 2005, he returned to his employment with the defendant on a graduated basis, initially working reduced hours in light duties.

• He further consulted Mr Owen in November 2006, who administered a further injection into his right elbow which the plaintiff described as not leading to any lasting improvement. Since that time he had been reviewed by Mr Owen from time to time, who had raised the possibility of further operative treatment.

• Following his return to work, the plaintiff said that he continued in his employment with the defendant until he was made redundant on 30 March 2007.[1]

• At the time of swearing his affidavit, he suffered from pain, stiffness and limitation of movement to his right elbow and arm, together with weakness of grip in the arm. He said he managed his symptoms by the use of –

[1]          Although this was not the subject of the plaintiff’s first affidavit, it is clear that the plaintiff was certified as fit only for modified duties until 26 July 2006 and that thereafter he was certified by Dr Ahmet as being fit for normal duties, with the result that for a period of some six months or so, up until the time of his retrenchment, the plaintiff performed the duties undertaken by him in the course of his employment before the onset of his symptoms.

“… painkilling and anti-inflammatory medication and I also continue to take Panadeine and Panadol. … I continue with exercises as shown to me by my physiotherapist.”[2]

• His sister was the proprietor of a café and take-away business in Richmond and that –

“I do, on occasions, go there and at times assist with the wiping and cleaning of tables and the taking of orders. I do not get paid for this work. However, it is therapeutic for me.”

[2]             Plaintiff’s Court Book (“PCB”) 33

•

He now used his left arm much more than he previously did and he was limited in activities which involved gripping tools such as spanners, hammers or power tools, and heavy lifting.

•

He described the consequences of his incapacity as follows:

(i)	he was limited in his ability to undertake handyman work;
(ii)	he was limited in his recreational activity of fishing;
(iii)	whereas he enjoyed undertaking woodwork, he was limited in that activity and also in the ability to service his motorcar and to play billiards;
(iv)	he said that following his redundancy from the defendant in March 2007, he had not been able to find work and he believed that his future earning capacity had been seriously impaired by reason of his injuries.

5          In a further affidavit dated 13 July 2010, the plaintiff deposed to the fact that:

•  He had been referred back to see Mr Owen on 4 March 2010 and that Dr Ahmet managed his condition, prescribing medication for his use. The plaintiff said that he would usually take Panadol everyday to ease his elbow discomfort but that if Panadol did not work he would make use of Panadeine Forte, which he took three or four times a week. He deposed to the fact that he would use a pack of twenty Panadeine Forte in the course of a month.

•  His symptoms involved an inability to straighten his right arm because of elbow pain. He said that any bending of his arm increased discomfort so that he was restricted in his ability to lift more than a few kilograms without increased discomfort and that he was aware of the presence of discomfort in his right elbow all the time. He described the symptoms in his elbow as being exacerbated by pressure upon his elbow and said that these symptoms interfered with his ability to sleep, causing him to wake several times in the night because of the presence of elbow pain. He described his symptoms as being worse in the evening and said that they were exacerbated by activity. He said that he was able to drive a car with power steering but he predominantly employed his left arm whilst driving. He said:

“I have not been able to return to work. I do go to my sister’s coffee shop and help out there from time to time. She bought the business about four years ago. It has never been a good business. Unfortunately, the business never picked up as she hoped and in fact has become less profitable. My mother and I help out there from time to time. I get free coffee and food but do not receive any money. My sister could not afford to pay it. I spend most of my time at the coffee shop sitting, reading and playing cards with people I know.”

• He had been required to give up fishing and that he had sold his fishing rods because he could not cast properly. He deposed to the fact that he was worried about his future and that he did not know “what work I could do with my right elbow injury”.[3] [3]             PCB 67

6          In the course of the proceeding, the plaintiff was cross-examined.

7          In his viva voce evidence, the plaintiff said that before his accident he was employed as an assistant foreman in the defendant’s “drawn texture yarn department”.[4] He said that following the onset of his symptoms, he underwent surgery at the hands of Mr Owen and that he returned to work in November 2005, initially undertaking light duties, and in August 2006, returning to “full employment duties”.[5] The plaintiff described these duties as involving stacking yarns on moveable trolleys or on pallets, and the requirement to manually move pallets. He said that between August 2006 and March 2007 he undertook full-time normal duties and that his employment was terminated in March 2007 when the defendant’s drawn textured yarn area was closed. The plaintiff said that whilst this area of the defendant’s factory closed in 2007, he was the only worker terminated at that time and the other workers employed within that division of the defendant’s company had been transferred into other areas.[6]

[4]             Transcript (“T”) 10

[5]             T 13

[6]             T 15

8          The plaintiff described suffering from symptoms of pain in his elbow joint, in management of which he took medication three or four times a week. He said that on good days he did not require medication and he slept better, but that activities such as stretching his arm or straightening the elbow exacerbated his symptoms.

9          He denied telling Mr O’Brien, an orthopaedic surgeon who had examined him, that he was capable of all normal activities of daily living, but he accepted that he was able to do “everything else except heavy physical tasks”.[7]

[7]             T 18

10        The plaintiff described being able to lift his arm above his head or above his shoulder but said that these activities involved pain. He said that he helped his sister in the operation of her takeaway food business by sometimes doing shopping for her, in the course of which he would buy food products, including drums of oil and tinned products which were employed in the making of the food sold by his sister. He was asked whether he undertook any activities at his sister’s shop additional to those which he had deposed to in his affidavit. He responded:

“I help her out with bringing shopping and things in like that.”

11        He said that whilst at his sister’s shop he sometimes took orders, that he could make a kebab for himself but that he could not make kebabs for customers. The plaintiff qualified this statement by saying that he might have made kebabs for his friends and also for customers.[8] He said that at times he cut meat from a vertical skewer but he suffered from pain when he undertook that activity. He accepted that there might have been times when he:

[8]             T 21

(i)	cooked chips and placed chips into brown paper bags;
(ii)	lifted bags of dim sims and bags of pre-made potato cakes;
(iii)	employed tongs to move meat in and out of a cooking pan.

12        He said that he would break down cardboard boxes and take them out to the side of the shop and that there may have been times when he took money from customers.

13        When it was put to the plaintiff that he performed all the activities associated with his sister’s business, he responded:

“There are times when I help her out.”[9]

ƒ The plaintiff said that he had been looking for full-time work since he had been
made redundant in March 2007 and that:

“I really, truly want to work.”

[9]             T 24

14        He said that he had applied for labouring jobs on building construction sites on two occasions but that he had been unsuccessful in obtaining employment when he told his prospective employer about the injury to his arm.[10]

[10]           T 24

15        The plaintiff said that “depending on the situation”, he spent sometimes two hours or more at his sister’s kebab shop. Whilst he had deposed that he spent most of his time in the shop “sitting, reading and playing cards with people I know”, he agreed:

[11]           T 25

(i)	that he helped his sister out in the shop;[11]
(ii)	that he might have undertaken maintenance work on the stove in the shop in the last month;
(iii)	that he had employed a screwdriver to remove the metal guard from the stove.

16        When it was put to the plaintiff that he could undertake all these activities without restriction, he responded:

“I suffer from pain. … I might seem to be doing everything; however, I

always suffer from pain when I do them.”

17        In the course of his cross-examination, the plaintiff was shown video evidence which was taken on a number of occasions between 28 May 2010 and 28 June 2010 which depicted him working in his sister’s take-away food shop known as the ‘Richmond Kebab House’.

18           I considered the video evidence to be relevant on the following grounds:

(i)      Firstly, the plaintiff was shown to be undertaking a number of activities at Richmond Kebab House which included preparing lamb or chicken skewers, trimming meat from the skewers when it was cooked, cleaning the hotplate of the stove, cooking items on the hotplate of the stove, preparing kebabs and serving customers. Generally, whilst I considered all of the activities depicted as involving what would be classified as “light work activities” consistent with the capacity of the plaintiff for work as described in the various medical reports relied upon by the parties, the video did depict the plaintiff to be much more actively involved in his sister’s business than he had specifically deposed to in his affidavits.

(ii)     Secondly, the video depicted the plaintiff carrying a drum of oil and what appeared to be some large cardboard sheets. In undertaking both these activities, the plaintiff was using his left rather than his right hand. Each of the activities involved the full extension of the elbow and the plaintiff’s avoidance of the use of his right hand in undertaking these activities was, in my opinion, consistent with the repeated findings made in the course of medical examinations undertaken upon the plaintiff in which he reported the presence of pain if he was required to extend his right elbow fully, and he said that he avoided that activity.

(iii)     Generally, the video depicted the plaintiff to be moving quite freely and, with the exception of the observations which I have commented upon in (ii) above, without the need to protect his right elbow.

19        Having seen the video evidence, the plaintiff was further cross-examined as to his activity within his sister’s business. He agreed that he went to the premises on most days and on some weekends and that the video depicted the activities that he had engaged in at the business for the past three or four years. He also accepted that he and his wife were the sole shareholders of the company which operated the business, however he maintained his position that he had nothing to do with the operation of the business and that he received no remuneration from its operation.

20        In re-examination, the plaintiff gave evidence that whilst his initial symptoms were located at the point of his elbow, since his surgery he had felt pain inside his elbow joint. He said that he was unable to describe the precise location of this pain. The plaintiff said that he managed his symptoms of pain by the use of Panadol but that once or twice a week he may be required to resort to the use of Panadeine Forte which he obtained via a prescription from Dr Ahmet. He was asked why, when lifting the drum of oil and carrying the cardboard as depicted in the video, he did not employ his right hand, and responded that it was easier to use his left hand to avoid the pain which would be present if his right hand was employed.[12]

[12]           T 38

The Medical Evidence

21        Dr M Ahmet, the plaintiff’s treating general practitioner, in reports dated 17 December 2008 and 25 May 2010 respectively, commented:

(i)	that the plaintiff first presented to his rooms on 18 June 2008 complaining of a history of one month of right arm pain and that the cause for this presentation was eventually diagnosed as being medial epicondylitis;
(ii)	that the plaintiff underwent a flexor origin tendon release on 26 May 2005 which failed to resolve his symptoms entirely and that he had continued to complain of pain thereafter;
(iii)	that the plaintiff had agreed to take up a return to work plan and that he eventually went back to full-time duties but that his symptoms continued in “an intermittent way up to February 2007” during which period he had further injections from Dr Owen into the elbow.

22        As at 17 December 2008, Dr Ahmet opined that the plaintiff was fit for lighter work than that involved in his original duties, and commented:

“I do not see that there would be a major impact upon social and domestic life from this injury, however there will be some impact due to the ongoing pain which obviously interferes with his general and overall enjoyment of life.”

23        In his subsequent report, Dr Ahmet opined that the plaintiff was suffering from medial epicondylitis in the right elbow, that he was not fit for his pre-injury duties and that:

“His long-term outlook on the employability question is that he cannot overtax his right elbow because of the chronic damage he sustained. His outlook is for work not involving heavy or repetitive duties of the right elbow. As to his social, domestic and recreational life, I offer no opinion as I have no knowledge of the actual situation in those area (sic) of his life.”[13]

[13]           PCB 39

24        Mr John Owen, an orthopaedic surgeon, reported on 23 July 2008 that he first examined the plaintiff on 2 September 2004 when he presented with tenderness over the medial epicondyle. Mr Owen injected the medial epicondyle on that date and again on 27 September 2004 with little result. Eventually Mr Owen performed an open release of the medial epicondyle in May 2005. He reported post-operatively that:

“The patient complained of pain and weakness in the elbow and he had noticed a slight loss of full extension. From thereon the patient has continued to complain of pain around the elbow.”[14]

[14]           PCB 42

• As at November 2006, Mr Owen opined that as far as function of the right elbow was concerned, the plaintiff could lift and push but not extend his elbow.

• As at July 2008, Mr Owen commented:

“He told me that his right elbow was still severely painful, especially on extension. He thinks the operation helped in

some way in that it made pushing and pulling more

comfortable, but he still had this pain on	extension	of	his
elbow.”

and opined

(i)      that the plaintiff’s continuing complaint of right elbow pain was an unusual symptom but he noted that his patient had been –

“… quite consistent and he has volunteered that the conventional surgery he has had to the medial epicondyle has improved his pain, which again is unusual in a patient who might be thought to have some psychosocial problems.

There are no signs of Chronic Regional Pain Syndrome.

I suspect this man does have an organic cause for his pain. It may be some form of subtle impingement and it may well need an arthroscopy of the elbow to at least exclude that possibility, but it is hard to associate this pain with his work. He only really noticed the pain, or at least complained about it, until after his initial surgery.”

(ii)       that the plaintiff was capable of work but that his employment should take into account the positions that caused a recurrence of his pain, however Mr Owen opined that he did not believe that the recurrence of pain would do the plaintiff any harm.

25        Mr John O’Brien, an orthopaedic surgeon, assessed the plaintiff on 21 April 2010. In a report dated 8 May 2010, Mr O’Brien noted that on examination, the plaintiff was able to flex his arm to approximately 140 degrees but that any attempt to extend the elbow beyond this caused significant pain. It was Mr O’Brien’s opinion that the plaintiff’s symptoms confirmed the presence of active inflammation associated with the common flexor and indicated the presence of medial epicondylitis. He opined that the plaintiff’s employment remained a significant contributing factor to his current symptoms and expressed the opinion that the plaintiff was not capable of undertaking his pre- injury occupation which involved lifting and the repetitive use of his right arm, but that he was fit to undertake light duties which did not place a strain on his right dominant arm.

26        Mr Peter Kudelka, orthopaedic surgeon, examined the plaintiff on 6 December 2004. He expressed the opinion that the plaintiff had suffered a strain injury to the inner aspect of his right elbow. Having regard to the date of Mr Kudelka’s examination, I do not find his report in any way helpful in assessing the present consequences to the plaintiff of his injury.

27        Mr Hugh Weaver, orthopaedic specialist, examined the plaintiff on 24 August 2006. He diagnosed the plaintiff as suffering from humeral epicondylitis affecting his right elbow and opined that the plaintiff should avoid activities involving repetitive elbow flexion. He accepted the relationship between the plaintiff’s presenting condition and his work process and said that he doubted that the plaintiff was going to be left with any substantial problem affecting his right elbow on a longer term basis. He qualified that comment however by observing that the plaintiff was probably going to be left with-

“at least some persisting problems affecting his right elbow region.”

28        Dr Chris Baker, a specialist in rehabilitation medicine, examined the plaintiff on 21 January 2009. He obtained a history from the plaintiff that with use of his right arm he developed a throbbing pain in the region of the medial epicondyle. On examination, Dr Baker detected a full range of movement in the elbow joint but reported that extension was reduced in that the plaintiff could extend his arm with a loss of 20 degrees without pain and could straighten his arm further but suffered pain in doing so. He expressed the opinion that at the time of his assessment there was a lack of evidence of active medial epicondylitis and agreed with the opinion of Mr Owen that there appeared to be some degree of posterior impingement of the elbow which was responsible for his main complaint of restriction of extension.

29        Dr Tony Kostos, a rheumatologist, examined the plaintiff on 17 May 2010 and reported that he presented with a full range of movement in his right arm with the presence of discomfort only in extension. He opined that the plaintiff had undergone surgery which “was successful and his symptoms resolved” and that the plaintiff had subsequently developed “different pain in his right elbow which was noted on full extension”. Dr Kostos expressed the opinion, in these circumstances, that the plaintiff’s original problem of medial epicondylitis had been successfully treated and that any problems with which the plaintiff presented at this time were probably associated with osteoarthritis “possibly related to previous trauma” and which was not related to the plaintiff’s employment.

30        In a report dated 13 May 2010, Dr Kevin Fraser, rheumatologist, reported that on examination, the plaintiff’s right elbow movements were not restricted, with extension and flexion present from 0 to 140 degrees, but there was a complaint of “slight pain at the extreme of extension”. Dr Fraser expressed the opinion that the plaintiff had fully recovered from his work-related medial epicondylitis, however the basis of that opinion is not made clear in the body of his report. Dr Fraser expressed the opinion that:

“There can be no basis for suggesting that he is unfit for suitable employment, including work which does not require full extension of the elbow and perhaps with a lifting restriction of say 5 to 10 kilograms.”

The Cause of the Plaintiff’s Present Symptoms

31        On the basis of the evidence of Dr Kostos and Dr Fraser, the defendant puts in issue the cause of the plaintiff’s present symptoms, submitting that I should not be satisfied that employment remains a significant contributing factor to those symptoms.

32        I do not find the opinion of Dr Kostos on this issue to be persuasive. His opinion that the plaintiff’s present symptoms are not related to his employment is clearly based upon the view which he expressed, that the surgery to the plaintiff’s right medial epicondyle was successful and that his symptoms resolved. This statement is in conflict with the evidence given by Mr Owen and that of Dr Ahmet. Having regard to the fact that Dr Kostos was in possession of Mr Owen’s report at the time at which he reported in this case, I can see no basis for Dr Kostos making the comment that the plaintiff’s symptoms had resolved with surgery and for this reason I do not accept the opinion expressed by Dr Kostos that the plaintiff’s present symptoms are no longer related to his employment. I note that having regard to the plaintiff’s symptoms however, Dr Kostos expressed the opinion that whilst the plaintiff was not incapacitated for work, he –

“… may need to undertake lighter work compared to that which he was

previously undertaking.”

33        Further, the failure by Dr Fraser to explain the reason for his opinion that the plaintiff had fully recovered from his work-related medial epicondylitis, does not assist me in assessing the validity of that opinion.

34        In my opinion, the tenor of the medical evidence generally, with the exception of the opinions of Dr Kostos and Dr Fraser, supports a continuing relationship between the plaintiff’s work-related injury and his present symptoms and I am satisfied that the plaintiff has established that relationship. Mr Owen accepted in principle the presence of an organic basis for the plaintiff’s symptoms and a continuity in the symptoms of which the plaintiff complained post-operatively. In particular, I consider the analysis of the plaintiff’s present position as expressed by Mr O’Brien in his report of 8 May 2010 to be well balanced and explained. I am satisfied that both Mr Owen and Mr O’Brien accepted the relationship between the plaintiff’s employment and his continuing symptoms, as did Mr Weaver, and I prefer these opinions on this issue to those expressed by Dr Kostos and Dr Fraser.

Findings as to the Consequences of the Plaintiff’s Impairment

35        It is submitted on behalf of the defendant that this is a “range case”, namely that the issue which I am required to determine is whether the consequences to the plaintiff of his injury and impairment are appropriately described as being more than significant or marked and as being at least very considerable.

36        The defendant calls into question the plaintiff’s credit. It is submitted on behalf of the defendant that the activities undertaken by the plaintiff within the Richmond Kebab House, when considered in the context of:

(i)	the fact that the plaintiff and his wife are the sole shareholders of the business;
(ii)	The plaintiff’s admission that the video depicted the activities that he had undertaken in the shop for three or four years and that he attended the shop on most days and on some weekends

are in stark contrast with the information contained in the plaintiff’s two affidavits which gave the impression of a more limited involvement by the plaintiff in the operation of the business. It is submitted that the plaintiff’s credit is accordingly impugned so that I should be reluctant to accept his evidence as to the consequences of his injury.

37        Whilst I consider that there is considerable substance in the submission by the defendant in this regard, when I take into account however:

(i) that prior to his retrenchment from employment with the defendant, the plaintiff had returned to full-time work and had continued in that work notwithstanding his need of treatment by Mr Owen in the form of an injection of local anaesthetic and steroid into his right elbow in November 2006, the presence of symptoms which were sufficient to cause Mr Owen to refer the plaintiff for an MRI scan early in 2007;

(ii) the consistency of the plaintiff’s presentation at the various medical examinations he has attended which documented the fact that he had

lost in the vicinity of 20 degrees of extension of his elbow, in the sense

that straightening of the elbow beyond that position caused him to

experience pain;[15] together with the fact that these findings were also

[15]           This finding was made by Dr Baker in the course of his examination on 21 January 2009,15 Dr Fraser, in the course of his examination on 31 May 201015 and Mr O’Brien in the course of his examination of the plaintiff on 24 April 2010.15

consistent with the surveillance evidence of the plaintiff to which I have

previously referred in which, when undertaking activities which required

the full extension of his right elbow, the plaintiff employed his non-

dominant left arm.

(iii)     the evidence given by the plaintiff in cross-examination before he had

seen the video in which he largely admitted undertaking the activities

depicted in the video;

(iv) the fact that not one medical practitioner who has examined the plaintiff has suggested that he in any way exaggerated the symptoms from which

he suffered or the extent of his disability;

(v)     that further video surveillance was undertaken of the plaintiff which has

not been made available and that the failure of the defendant to produce

that evidence gives rise to a O'Donnell v Reichard[16] inference in favour

of the plaintiff;

[16] [1975] VR 916

and that each of these factors tend to speak in the plaintiff’s favour on the issue of credit and stoicism, I am satisfied that it is inappropriate to make an adverse finding upon the plaintiff’s credit by reason of the activities undertaken by him as depicted in the video surveillance. This is not to say that I accept without question the evidence given by the plaintiff as to the consequences of his injury to him.

38        Whilst the plaintiff gave evidence that he has been required to manage his symptoms by regular recourse to prescription strength painkillers in the form of Panadeine Forte, I do not accept that evidence having regard to the absence of any record of the prescription of that medication in the medical records of Dr Ahmet. In this respect, I am satisfied that the plaintiff is able to manage the symptoms emanating from the injury to his right elbow by the use of non-prescription medication in the form of Panadol and the like, and that the fact that the plaintiff’s symptoms can be so managed speaks as to the severity of the pain when it is present. In these circumstances I am not satisfied that it is appropriate to describe the level of pain which is associated with the plaintiff’s injury as being other than of a moderate level.

39        The defendant points to the relatively modest levels of medical treatment which the plaintiff has required in relation to his right elbow injury in recent years and specifically to the fact that in the last three years he has consulted Dr Ahmet on only four occasions with respect to that condition, the last consultation being on 13 November 2008. Whilst the lack of recourse to medical treatment may be an indicator of the severity of an underlying condition, I am satisfied that, with the exception of the question of further surgery being required to his elbow,[17] the plaintiff had undergone the full gamut of medical treatment which might be available to him with the conclusion of his pain and rehabilitation program in July 2006. In these circumstances I do not regard his failure to seek further treatment from his general practitioner as being of any significance other than that it supports the conclusion which I have previously made that the plaintiff is able to manage his ongoing symptoms without recourse to medical treatment or the use of prescription strength pain control.

[17]           The plaintiff’s evidence to this effect at PCB 31 is unchallenged

40        When I come to assess the consequences to the plaintiff of his injuries as set out in his affidavit of 13 July 2010, I make the following findings of fact:

• I am satisfied that the plaintiff cannot fully straighten his right elbow because of the presence of pain associated with that movement. This is a complaint which the plaintiff has made repeatedly and consistently to each of the medical practitioners who have examined him and none of them have called into question that history.

• I am not satisfied that the plaintiff has established that any bending of his arm, other than its full extension, involves pain of a significant degree or that he suffers from significant pain or discomfort in his elbow all of the time. My finding in this regard is consistent with the findings of recent medical examinations of the plaintiff.[18] Further, the movement by the plaintiff of his right arm as depicted in the video evidence did not suggest the presence of any guarding by the plaintiff or discomfort associated with that movement. Finally, this finding is reinforced by the plaintiff’s evidence that the activity depicted in the video was typical of that which he performed within the business over the period of the last three years.

• The plaintiff’s evidence that his elbow interfered with his ability to sleep was not contested and I accept that evidence. Whilst the plaintiff deposed to the fact that he woke “several times a night by reason of right elbow pain”, this bare statement without further elaboration does not satisfy me that there is a substantial interference in the plaintiff’s sleep pattern by reason of the presence of his symptoms. The fact that no evidence was adduced on behalf of the plaintiff that he has needed to consult Dr Ahmet in respect of this problem supports my comment in this regard.

• Whilst I accept that the plaintiff has not returned to remunerative work, the consensus of all medical evidence is that the plaintiff retains a capacity, at the very least, for light forms of work which does not require him to handle weights in excess of 15 or so kilograms with his right arm and does not involve repetitive or forceful movements of his right arm. When account is taken of the fact that the plaintiff was able to return to full-time employment with the defendant and was able to maintain that employment, albeit with recourse to some treatment from Mr Owen, until he was retrenched in March 2007, I am not satisfied that the plaintiff has established that he does not possess a capacity to perform a wide variety of employment activities which are available in the general workforce. In making this finding, I am reinforced in my view in this regard by the application by the plaintiff for employment within the construction industry which is consistent with a belief on his part that he is physically capable of carrying out the duties involved in that work, together with his evidence that the effect of the injury to his elbow has been to preclude him only from heavy physical tasks.[19]

• I accept that the plaintiff would be precluded from domestic and recreational activities including woodworking, which would require him to fully extend his right arm or which would involve forceful and repetitive movement of his right elbow joint. I am not satisfied however that the plaintiff has established that all activity in these fields is precluded to him. Rather, the evidence satisfies me that the plaintiff’s preclusion in this respect would be confined to activity which requires him to fully extend his right elbow, or to the more strenuous range of those activities. In making this finding I take particular note of the plaintiff’s evidence that his injury restricted him only in undertaking heavy physical tasks.[20] I am satisfied however that plaintiff has had to give up his hobby of fishing and that this was an activity which he undertook with some regularity.

[18]           See the history obtained by Mr O’Brien on 21 April 2010 that the plaintiff’s pain was not constant but was precipitated by extension of the right elbow, and his findings on examination, together with the similar histories and findings documented in the course of the examinations by Dr Kostos on 19 May 2010 and Dr Fraser on 31 May 2010.

[19]           See the plaintiff’s evidence at T 18 and T 24

[20]           T 18

41        In deciding the issue which arises in this case, namely whether the plaintiff’s pain and suffering consequences, when judged by a comparison with other cases in the range of possible impairments or losses of body function, may fairly be described as being more than significant or marked and as being at least very considerable, I am required to assess the consequences in terms of pain and suffering which the plaintiff’s injury has occasioned to him and determine where the facts of this case sit in the broad spectrum of cases. The task which I am required to undertake has been described as involving “a value judgment in which matters of fact, degree and impression are operative”[21] and one in which I am required to take into account “not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of the consequences, may be informed, to some extent, by what is retained.”[22]

[21]           Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181

[22]           Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260

42        Taking into account the consequences which the plaintiff has satisfied me are associated with the injury to his right elbow, and considering those consequences in the context of the range of possible impairments which arise in the broad spectrum of accident-related injury, although I am satisfied that it is appropriate to describe the plaintiff’s impairment as being significant, marked or considerable, I am not satisfied that it is appropriate to describe that impairment as being more than significant or marked and as being at least very considerable.

43        In these circumstances, I am not satisfied that the plaintiff has made out his entitlement to the leave which is sought in this application.

44        I will hear the parties as to the precise order which should be made in this matter and also upon the issue of costs.

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