Van Doorn v Transport Accident Commission
[2015] VCC 435
•24 April 2015
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-04676
| RONALD VAN DOORN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 10 and 11 February 2015 | |
DATE OF JUDGMENT: | 24 April 2015 | |
CASE MAY BE CITED AS: | Van Doorn v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 435 | |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986 – s93 – injury to the right lower arm and wrist – the plaintiff has been involved in various other accidents and suffered other injuries – whether consequences of this accident can be identified and distinguished – if so, whether statutory test satisfied – factors to be considered
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird with Mr I Fehring | Maddens Lawyers |
| For the Defendant | Mr W R Middleton QC with Ms D Manova | Solicitor to the Transport Accident Commission |
HIS HONOUR:
General Background
1 This matter comes before me by way of an application pursuant to s93(4)(d) of the Transport Accident Act 1986, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in relation to injury to the right lower arm and wrist suffered in a transport accident on 3 February 2009 when, at a roundabout, the plaintiff, who was riding a pushbike, was struck by a motor vehicle. There was no argument but that a transport accident of this nature occurred. Reliance was placed by the plaintiff upon paragraph (a) of the definition of serious injury found in s93(17) of the Act. The test to be considered is that set out in Humphries & Anor v Poljak [1992] 2 VR 129.
2 Mr N Bird of counsel with Mr I Fehring of counsel appeared on behalf of the plaintiff. Mr W R Middleton QC with Ms D Manova of counsel appeared on behalf of the defendant. The plaintiff gave evidence and was cross-examined. The balance of the evidence was documentary in nature and was tendered by consent or without opposition.
3 It should be noted that, whilst the plaintiff told Mr W H Huffam, orthopaedic surgeon, who examined him at the request of his solicitors, that he was ambidextrous but wrote with his right hand, his evidence was more to the effect that he was right hand dominant, but that the injury had forced him to use his left hand to a greater extent.
Factual background
(a)The plaintiff’s education, background and training prior to the injury
4 The plaintiff is 59 years old, he having been born on 6 November 1955 in the Netherlands, and migrated to Australia with his parents when he was a young child. He was educated at various establishments in Victoria, and seems to have progressed to Year 12 level.
5 After leaving school, the plaintiff was employed as a farm worker, before working for the Department of Crown Lands and Survey for some 22 years as a “clinical draftsman” and a ranger. He then worked briefly for a company which sold tractors and has also worked as a builder’s labourer, personal care attendant and in a vineyard.
6 The plaintiff commenced employment with Colac Area Health on 8 November 2000, initially as a kitchen hand and then as a porter. He qualified to become a theatre technician, which position he has held for in excess of 11 years. He continues in that work.
(b) The plaintiff as a witness
7 Whilst at times the plaintiff appeared to be relatively straightforward in his presentation, he did give a couple of answers in relation to one particular issue which I found to be somewhat surprising. These were answers to which Mr Middleton drew attention in his closing address. These answers occurred during re-examination and can be found at Transcript (hereinafter referred to as “T”) 52–53. The plaintiff was asked to assess the pain in his wrist, which pain he had previously described as a dull ache, on a scale of 0 to 10. Further, in his affidavit of 13 November 2014, the plaintiff had described how his pain had remained constant after surgery (which shall be discussed) and was “akin to a dull toothache”. However, in re-examination, the plaintiff gave evidence that, on the 0 to 10 scale, his pain would be consistently about a seven or eight. When he was asked if he was talking about a flare-up rather than the constant, his reply was “No, that’s – the constant.” He said, when he woke of a morning, the constant would be “about a six”.
8 This piece of evidence did not seem to fit particularly well with the description of the pain as being like a dull toothache or with his description to Mr Damian Ireland, hand surgeon, examining at the request of the plaintiff’s solicitors, that the pain was a constant dull ache. To Mr Ireland, he did refer to aggravation occurring by reason of use of the hand. I appreciate that the plaintiff is a person who has pressed on with work and other activities despite suffering an undisputed and considerable number of accidents and injuries during the course of his life. Nevertheless, this particular piece of evidence given in re-examination did not seem to me to sit comfortably with the plaintiff’s earlier descriptions of his symptomatology. Further, as shall be discussed, in a history of symptoms given to Mr Peter Wilde, an orthopaedic surgeon who treated him for a subsequent back injury, the plaintiff remarked upon his good health prior to that back injury. Again, this does not sit comfortably with other portions of his evidence.
(c)Previous injuries and the state of the plaintiff’s health prior to the accident and injuries sustained subsequent to the accident
9 The plaintiff could certainly be described as being somewhat accident prone. Prior injuries suffered by the plaintiff include the following:
· Four knee reconstructions, being two for each knee, the immediate causes being an accident with a horse, an injury sustained whilst playing soccer, a slipping incident and an injury sustained when struck by a forklift.
· A left shoulder injury sustained during the course of the plaintiff’s employment with Colac Area Health in January 2005. This resulted in an arthroscopic acromioplasty performed by Mr John Skelly, orthopaedic surgeon. Because that produced little relief, the plaintiff underwent further surgery performed by Mr John Salmon, orthopaedic surgeon, on 27 July 2006. When, ultimately, the symptoms returned and worsened, the plaintiff returned to Mr Salmon, who operated again on 14 August 2014. The plaintiff has sworn in his affidavit of 13 November 2014 that he intends to investigate any entitlement which he may have to a serious injury certificate in relation to the left shoulder injury. In the meantime, he continues at work performing his usual duties.
· During the course of his employment at Colac Area Health, the plaintiff injured his back on 23 February 2011 when he unexpectedly took the weight of a patient to whom an anaesthetic had been administered. Subsequently, a spinal fusion operation was performed on the plaintiff’s back in October 2011 by Mr Peter Wilde. The plaintiff pursued, and obtained, a serious injury certificate in respect of that injury. He subsequently received payments of an impairment benefit and settled his common law claim. His affidavit of 17 October 2013, in support of his application for leave to bring proceedings in relation to the back injury, was placed in evidence. He was cross-examined concerning this and concerning the consequences which he had alleged arose from the back injury. These were compared to the consequences alleged in relation to the right wrist injury, the subject of the present application. I shall return to this issue, but suffice to say that Mr Middleton referred me to decisions such as Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67 and Bezzina v Trung Phi & Anor [2012] VSCA 161.
· In September 2014, the plaintiff suffered a partial tear of his right Achilles tendon when he stepped into a gutter. This did not result in surgery, but he has been required to wear a moon boot for a period.
· The plaintiff had sustained a previous right wrist injury when he was approximately 17 years of age. This was a suspected fracture of the right wrist when he punched a football. He does not have a great deal of recollection of precisely what happened medically, but he was taken to the Outpatients Department at the Royal Melbourne Hospital and his arm was placed in a half cast. This was removed after several weeks, and he has sworn that he suffered no symptoms or problems with the right wrist until the relevant transport accident.
· The plaintiff also suffered from carpal tunnel syndrome and has had surgery performed on his right wrist in 1995 and 1996.
10 These accidents and injuries are of varying degrees of relevance. Thus, it can be seen that the identifying of the consequences of the claimed serious injury and the examination of how they affected the plaintiff as he was and would likely have been absent the injuries he sustained in the relevant transport accident, to employ the wording used in Bezzina, is an important issue in the case.
(d) The injury, its treatment and diagnosis
11 Immediately following the accident on 3 February 2009, the plaintiff attended the Emergency Department of Colac Area Health, otherwise known as the Colac Hospital, where he was not admitted, but was sent home. He had various aches and pains, including a fractured rib. He also noted pain and stiffness in the right wrist. Pain in the right wrist persisted, and the plaintiff saw Dr Borsos, general practitioner, on 5 February 2009. At that time, his main problems were with his right shoulder, lumbar spine and fractured rib. However, he was complaining of some stiffness and pain in the right wrist, although that was starting to improve. The plaintiff continued to attend on Dr Borsos and also saw Mr Mark Zampatti, physiotherapist, first seeing him on 23 March 2009. Mr Zampatti suggested that there be some radiological investigations prior to his administering physiotherapy. Accordingly, a CT scan of the wrist was carried out on 14 April 2009. However, this did not reveal any evidence of a recent fracture. The report of Mr Zampatti also refers to a diagnostic ultrasound of the wrist having been performed, although I wonder whether this might not have been of the right shoulder. Certainly, a plain x-ray of the right wrist performed on 2 April 2009 revealed no sign of any fracture or joint injury. An ultrasound of the right shoulder was performed on that day, this also being normal. In any event, at this stage the diagnosis of Mr Zampatti was that the plaintiff had suffered a ligamentous sprain of the wrist. He had returned to his normal duties on 15 April 2009. The plaintiff continued with physiotherapy and mobilisation techniques, but his wrist and shoulder remained irritable. He had worn a cast for a couple of weeks and it was recommended by Mr Zampatti that he continue to wear a wrist splint. Mr Zampatti last saw the plaintiff on 19 May 2009.
12 On 26 August 2009, as the plaintiff was having ongoing pain in the right wrist and was requesting a specialist review, Dr Borsos referred him to Associate Professor Richard Page, orthopaedic surgeon. Professor Page initially saw the plaintiff on 9 December 2009. To Professor Page, the plaintiff complained of pain in the wrist with poor grip and weakness, in addition to radiation of pain into the forearm. He also had an increasing ache in the right shoulder.
13 Due to the plaintiff’s somewhat complex symptoms, Professor Page organised for an MRI scan to be performed. He also organised for an arthrogram. Without going into the radiology reports in detail, and they are quite technical, the two most significant findings were of a volar and anterior ligament tear at the base of the thumb and a scapholunate ligament disruption at the wrist. These results coincided with the clinical findings. The plaintiff opted to go ahead with surgery to repair and reconstruct the wrist. The surgery was carried out in March 2010 and was largely in the nature of a reconstruction. Professor Page has described it as complex wrist surgery.
14 The plaintiff continued to see Professor Page. In addition, he received some hand therapy and wore a splint. It would appear that he was off work for something in the order of six to seven months, before being cleared for a return on a part-time basis. He was so working when last reviewed by Professor Page on 5 October 2010. He was still suffering from aches at the end of some days, but was gradually increasing his work stamina. Professor Page suggested a gradual increase in the hours of work and it would seem that the plaintiff returned to full-time, normal duties in December 2010. In his report of 7 March 2011, Professor Page stated that the plaintiff had suffered significant injuries to his wrist and hand and had made a functional recovery. However, he is likely to have ongoing limitations with a restricted end range of motion and potentially reduced grip strength. There was also the potential for aching after heavy use. Professor Page raised the prospect of possible future osteoarthritis around the thumb and the wrist.
15 The only report from the plaintiff’s general practitioner, Dr Borsos, is of 1 March 2011. A large part of this report consists of clinical notes concerning consultations. The last such clinical note is dated 1 September 2010, at which time the plaintiff had returned to work on reduced hours, but was attempting to increase such hours. The summary of Dr Borsos was that the plaintiff’s right wrist had needed complex reconstruction. He had also needed prolonged rehabilitation. The plaintiff had been back to full duties. Dr Borsos commented that the plaintiff was very motivated and that his prognosis was good.
16 The only other material from anyone who has treated the plaintiff is a report dated 7 March 2011 from Mr Mark Zampatti, physiotherapist. As he had not seen the plaintiff since 19 May 2009, basically his report takes matters no further.
17 There have been various radiological investigations of the plaintiff’s right upper limb. Only one of these – an x‑ray of the right wrist – appears to have been taken since the surgery in March 2010. This x‑ray, of 7 June 2010, showed some soft tissue swelling and the scapholunate joint appeared mildly widened with slight tilt of the lunate. The post-operative changes of the first carpometacarpal joint were noted. Essentially, the radiologist made no other remarks.
18 The plaintiff has also been seen for medico‑legal purposes. Mr Damian Ireland, hand surgeon, saw the plaintiff at the request of his solicitors on 2 April 2014. Mr Ireland took an appropriate history, including that the plaintiff was away from work for some months following the surgery performed by Professor Page. He then returned to work, wearing a splint for a further two months before returning to full time duties. He had not missed any time since because of symptoms referable to his right upper limb. The plaintiff described to Mr Ireland a constant dull ache in the right hand at the basal thumb joint and on the dorsum of the wrist. He did not believe this had substantially improved since surgical intervention. The ache was aggravated by use of the hand and thumb. The plaintiff was also complaining of weakness in grip and loss of motion at the wrist, as well as numbness in the palm of the hand. He was taking two Panadol tablets per day, but having no other treatment. He complained that he was no longer able to play squash and had difficulty swimming due to increased wrist pain. He was pursuing his hobby as a furniture maker, using various tools, but was using a nail gun rather than a hammer because of right wrist pain.
19 Having carried out various tests, the diagnosis of Mr Ireland was of right wrist and right thumb dysfunction following soft tissue injuries to both these structures. He was of the view that the plaintiff had permanent restricted motion of the right wrist following ligamentous reconstruction for a scapholunate ligamentous tear. He considered the restricted motion to be unlikely to improve, but did not expect further deterioration. There was a minor loss of motion at the right base of thumb joint. He considered the thumb to be stable, with no further deterioration anticipated. In summary, he did not think that any further surgical or medical treatment was indicated or likely to be necessary. He also thought that, apart from discomfort during the course of the plaintiff’s normal work, there had been no substantial loss of function. He noted that the plaintiff’s recreational activities included furniture making on a semi-professional basis, in which he was continuing to partake, although in a limited manner. Domestic and sporting activities did not appear to have been unduly affected.
20 At the request of his solicitors, the plaintiff had also been seen by Mr William Huffam, orthopaedic surgeon. He noted that the plaintiff was ambidextrous, but wrote with his right hand. Upon examination, Mr Huffam noted a moderate limitation of shoulder movements. He recorded a painful catching movement as the arm passed the horizontal position, either when being raised or when lowered. Forearm circumferences were identical. Mr Huffam also noted a moderate limitation of movement of the wrist joint. Mr Huffam commented that the injury to the right wrist was more severe than that to the shoulder. Despite the surgery, the plaintiff still had a significant disability in the right wrist, with pain most of the time and limitations of movement. Mr Huffam recorded that the plaintiff was unable to perform activities requiring any forceful movement of the wrist, such as hammering, using power tools and whipper snipping. He was of the view that the plaintiff was unlikely to benefit from further surgery or other treatment and noted that he had been able to continue his employment as a theatre technician, but with some difficulties. He also referred to social, recreational, domestic and sporting activities being considerably curtailed, with the plaintiff unable to play squash or tennis, and unable to hammer nails.
21 The defendant arranged for the plaintiff to be examined by Mr Michael Fogarty, orthopaedic surgeon, this examination taking place on 13 December 2011. Mr Fogarty took an appropriate history. He noted that the plaintiff had not received further treatment for his right wrist or hand after the cessation of therapy in November 2010. The plaintiff gave a history that his right hand still felt somewhat painful at the wrist and at the base of the thumb, with occasional pain in the whole hand. Stability had been restored, although he felt that his grip was not as strong as it had been prior to the accident. The plaintiff stated that he had not been able to play golf, squash or tennis since the accident. However, he felt that he would be able to get back to regular cycling. Of course, the injury to the low back had occurred prior to the plaintiff seeing Mr Fogarty. Mr Fogarty carried out various tests and examined the radiology reports. His ultimate diagnosis was that the plaintiff had suffered a soft tissue injury to the right hand and wrist with scapholunate ligament disruption and volar ligament disruption at the carpo-metacarpal joint of the right thumb, together with a soft tissue injury of the right shoulder. Mr Fogarty also commented that the plaintiff was currently not working, but for reasons not related to the relevant injury. He observed that the plaintiff could carry out normal activities of daily living and was hoping to return to his normal occupation. He did not believe that either pre-existing injuries or those that had occurred since the accident had influenced the course of the relevant injury. He was not of the view that any other forms of treatment or rehabilitation need be considered. The condition of the injuries has substantially stabilised.
22 Mr Fogarty was prepared to make an Impairment Assessment pursuant to the AMA Guides. However, he did think that a psychiatric examination was appropriate. He thought that the prognosis was fair to good, but that a diminished range of motion was likely to remain for the foreseeable future. The relevant injuries did not interfere with the plaintiff’s ability to work, although they were stated to interfere somewhat with his domestic and leisure activities. However, the plaintiff could manage most activities of daily living.
23 Other reports concerning the impact of the plaintiff’s subsequent back injury were put before me. I shall refer to these subsequently. There were also put before me some reports in which, whilst the right wrist injury may have been mentioned, attention was largely focussed upon the plaintiff’s left shoulder injury.
24 A report of 6 May 2013 from Mr Zampatti was put before me. This seems to be directed principally towards the plaintiff’s left shoulder injury. There is only a passing reference to the accident of March 2009 in which, inter alia, it is said that the plaintiff sustained right wrist and shoulder injuries.
25 A report from Dr David Elder, consultant in occupational and environmental medicine, apparently obtained from the then defendant in relation to the left shoulder and low back injuries, this report being dated 30 July 2013, simply refers to the plaintiff having had a transport accident “about four years ago” when he was knocked off his bike and suffered a lower back injury, which completely resolved. There appears to be no reference to the right shoulder and wrist injury.
26 A report of Professor Vernon Marshall, surgeon, such report being dated 3 June 2014, also seems to be directed towards the plaintiff’s left shoulder injury. There is a reference to him having a past medical history of being knocked from his pushbike by a motor car, but the injury sustained is not discussed in any detail. However, I note that it is recorded by Professor Marshall that the plaintiff was suffering a constant ache in, and limited movement of, the left shoulder. The pain interfered with his sleep. The plaintiff also referred to having been previously active in scuba diving, running, gymnasium and rowing.
27 Much of this type of material goes to the issue of which incapacities or consequences flow from the relevant injury, as opposed to other injuries, but I have included some references by other examiners to the relevant injury at this stage of the judgment.
28 Returning to the injury to the right upper limb, I am satisfied, as found by Professor Page, the operating surgeon, that the plaintiff suffered a volar and anterior ligament tear at the base of the right thumb and, at the wrist, he had a scapholunate ligament disruption. There was also a perforation of the cartilage on the radial side of the wrist. In other words, as opined by Mr Ireland, the plaintiff developed right wrist and right thumb dysfunction following soft tissue injuries to the right wrist and right thumb. I accept that the subsequent surgery was quite complex in nature. The result has been a restriction in motion of the wrist with a minor loss of motion at the right base of the thumb joint – I would refer to the opinion of Mr Ireland. I would also accept the opinion of Professor Page that the plaintiff was likely to have ongoing limitations with restricted end range of motion and potentially reduced grip strength. The potential also exists for an ache after heavy use.
29 In relation to the plaintiff’s right shoulder, not a great deal of emphasis was placed upon this by the plaintiff’s counsel and indeed the application was specifically stated to be in relation to the plaintiff’s right wrist and hand – see T1. In any event, the evidence would not support a finding that any injury to the plaintiff’s right shoulder and the consequences thereof are of sufficient magnitude to support a finding of serious injury, and this was not argued. Accordingly, I shall not return to it.
30 Whilst the plaintiff has suffered numerous injuries, including previous injury to the right wrist, I am not of the view that what has occurred is in the nature of an aggravation. I accept that the plaintiff was effectively symptom-free in relation to his right hand and wrist before this accident.
31 Further, reliance is not placed upon paragraph (c) of the definition of serious injury found in 93(17) of the Act. However, whilst there was little or no argument advanced on the basis of the decision in Richards & Anor v Wylie (2000) 1 VR 79 in relation to any psychological or psychiatric consequences, that decision does leave some scope for such matters to be considered. However, I am not of the view that these are of any great magnitude. I appreciate that, to Mr Ireland, the plaintiff appeared depressed, although Mr Ireland went on to add that “It is beyond my scope to comment on the cause of this”. In the absence of expert psychological or psychiatric evidence, it is difficult to say whether the plaintiff is in fact suffering from depression. Further, if he is so suffering, it is additionally difficult to ascertain to which of the various injuries such depression should be attributed or as to whether it is the result of a combination of injuries. I note that Mr Fogarty expressed the view that examination by a psychiatrist would be appropriate, but he did not expand upon this, other than to say that there may have been a psychological impact of injury. The bottom line is that I am not of the view that the evidence establishes that there are any psychological or psychiatric consequences of note which can be attributed to the relevant injury. In addition, there is the added complication of the multiplicity of injuries.
32 I am satisfied that any consequences from which the plaintiff does suffer as a result of the injury to the right wrist and hand are permanent within the meaning of the Act. The contrary was not argued. Mr Ireland has referred to the plaintiff’s wrist and thumb conditions as being stable, effectively with no improvement or deterioration anticipated. Both Mr Ireland and Mr Huffam have expressed the opinion that the plaintiff is unlikely to benefit from further surgical or other treatment. Earlier, Mr Fogarty expressed the view that there may be some improvement in relation to the plaintiff’s symptoms. However, he was of the view that the injuries had substantially stabilised and was prepared to make an Impairment Assessment pursuant to the AMA Guides, an important ingredient of which is permanence.
33 In the circumstances, I am prepared to accept that the symptoms and consequences of injury to the plaintiff’s right wrist and hand are permanent within the meaning of the Act.
(e) Other developments since the relevant injury
34 I have already dealt with the course of treatment of the relevant injury. In addition, there has been some description of injuries and symptoms suffered and experienced by the plaintiff since the relevant accident. Following that accident, it is apparent that the plaintiff was off work for a few weeks, before returning to work on an unrestricted basis. Following the surgery performed by Professor Page, he was off work for some months. The exact duration of this period of absence from work is not clear, but it was something in the order of six to seven months, although his affidavit of 30 November 2014 refers to some three to four months. In any event, he then returned to work on a graduated basis before resuming full-time, unrestricted duties in approximately December 2010. The plaintiff then continued on a full-time basis and, apparently, performing unrestricted duties, until suffering the injury to his back which occurred on 23 February 2011.
35 It is apparent from the material put before me in relation to the back injury that, following that injury, the plaintiff returned to work on light duties before suffering a further exacerbation on 30 May 2011. He then seems to have been absent from work until early July, when he briefly resumed duties. Ultimately, he was referred to Mr Peter Wilde, orthopaedic surgeon, who performed a lumbosacral fusion on 10 October 2011. The plaintiff seems to have been absent from employment until approximately May 2012. Whilst there then seems to have been some anxiety on the part of the plaintiff and Mr Wilde, the plaintiff resumed full-time duties in June 2012. The affidavit in relation to his back claim, which affidavit was put before me, would indicate that he worked casullay, but on a full-time basis thereafter.
36 Another development of note in recent times has been the tear of the right Achilles tendon which the plaintiff suffered in September 2014. Whilst this may have affected his leisure activities, not a great deal of information is available in relation to it. I do not regard it as having any major influence upon the outcome of this application. Yet another development has been the apparent deterioration of the plaintiff’s left shoulder, this leading to further surgery on 14 August 2014. As earlier stated, the plaintiff intends to investigate any entitlement which he may have to a serious injury certificate in relation to this injury. The plaintiff has exhibited to his affidavit of 13 November 2014 a list of the difficulties which he has in relation to his left shoulder, such list having apparently been prepared for the purposes of a medical examination carried out in relation to an Impairment Benefit for that shoulder. Suffice to say that some 18 “ailments and consequences” are listed. Further, such list is stated to be not exhaustive. I should add that a list of some 10 consequences of the back injury, again being described as not a comprehensive list, and being one prepared for the purposes of an Impairment Benefit examination, was also exhibited to the plaintiff’s affidavit and put before me. Further, his affidavit in support of his application for a serious injury certificate for his back injury is also in evidence. The issue of what could be described as overlapping consequences loomed large in this case, and I shall return to it in my Ruling.
Ruling
37 Apart from anything else, this application has its share of complexity by reason of the numerous injuries suffered by the plaintiff at different times – in particular, the injuries to the back and the left shoulder. On balance, I am of the opinion that the plaintiff has not discharged the burden of proof in this matter. I am not of the view that, when the relevant comparison has been made, the pain and suffering consequences of the impairment or loss of a body function which he has suffered could be fairly described as being more than significant or marked and as being at least very considerable. I have come to this conclusion for the following reasons, which are not set out in order of importance or significance.
(a) The plaintiff appears to have received no form of medical treatment in relation to his right wrist and hand since October 2010. Professor Page last reviewed him on 5 October 2010. The relevant clinical notes of the general practitioner, Dr Borsos, do not extend beyond 1 September 2010. Further, in his report of 1 March 2011, Dr Borsos said that the prognosis was good. Mr Zampatti, the physiotherapist, has apparently not seen the plaintiff in relation to his right upper limb problems since 19 May 2009. The amount of treatment received, or the lack thereof, is a factor to be considered – see Haden Engineering v McKinnon [2010] VSCA 69 and subsequent cases.
(b) The amount of medication taken by the plaintiff is not entirely clear. What is apparent is that he takes over-the-counter medication only, this being Panadol or Panadol Osteo. When seen by Mr Ireland on 2 April 2014, the plaintiff was taking two Panadol per day. The plaintiff’s affidavit in support of his application in relation to his back injury also refers to him taking Panadol Osteo and Panadeine Forte, as well as Tramadol, Tramal and Endone as needed. The impression gained is that some medications disagree with him and he essentially confines himself to Panadol. Whether the injury to the left shoulder, in relation to which the plaintiff again underwent surgery on 14 August 2014, has been productive of the necessity to take medication is not entirely clear. However, I do note that, in the list of consequences of the left shoulder injury, the plaintiff has said that he is having to take painkillers more and more. What does seem to be comparatively clear is that the medication taken by the plaintiff in relation to the relevant injury is confined to over-the-counter medication. Further, it would appear that the need to take this results not just from the relevant injury, but from other unrelated injuries. The need for medication and the amount consumed is also a factor to be considered. I would again refer to the case of Haden and subsequent decisions.
(c) Apart from any interruptions caused by subsequent injuries, the plaintiff has been able to resume his normal occupation and on a full-time basis. In the context of the Accident Compensation Act 1985 and where leave is sought only in relation to pain and suffering damages, a return to work can be of significance. I would refer to the observations of Chernov J in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292. Of course, the observations of his Honour received further comment in Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 and subsequent cases. As was said in Stijepic, the most that can be said in relation to the observations of Chernov J in Sumbul is that, if a worker successfully returns to alternative duties, it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. However, the evidence as a whole must be considered. In the present case, the plaintiff returned not to alternative duties but to the identical duties which he had been performing and on a full-time basis. The fact that he was able to do this, at least before the other injuries sustained by him, is to his credit. However, the fact remains that, after a period of treatment in recovery and prior to any subsequent injury, the plaintiff was able to return to his pre-injury duties on a full-time basis. Essentially, after the relevant comparison is made pursuant to the test set out in Humphries v Poljak [1992] 2 VR 129, such an ability does not assist him in the present application. Indeed, it seems to me that the ability to return to full-time work performing pre-injury duties is a factor militating against the conclusion that the test has been satisfied.
(d) In relation to the performance of domestic duties, in his affidavit of 30 November 2014, the plaintiff has conceded that such activities are also affected by his back injury and the injury to his left shoulder. The combination of injuries impacts upon his ability to undertake such chores as vacuuming, sweeping and cleaning. Whilst he claims that the subsequent injuries have exacerbated the problems caused by his right wrist injury, the fact remains that, in the affidavit of 17 October 2013 in support of the application relating to the back injury, the plaintiff has outlined the house-keeping difficulties which he has. In that affidavit, he also swore that he found many activities of daily life awkward and difficult. There are problems in distinguishing between consequences of the right lower arm injury and those of the back injury or, for that matter, the left shoulder injury. The list of consequences relating to that shoulder injury includes a reference to problems at home with vacuuming, sweeping, cleaning, carting firewood and the like.
(e) In his affidavit, the plaintiff has described some difficulties which have been caused at his place of work by reason of the right wrist injury. He has referred to the difficulties transferring patients between the operating table and a trolley, holding patients’ limbs and the like. However, in the list of consequences resulting from the left shoulder injury, the plaintiff has also referred to difficulties transferring patients from the trolley to the operating table, positioning them and pushing trolleys. It is another example of the difficulty in attempting to distinguish between consequences of the right wrist injury and those of the left shoulder injury.
(f) Reports from medical examiners who saw the plaintiff in relation to his back injury were placed in evidence. In relation to the comparative gravity of the right wrist injury, I would note the following. The plaintiff’s treating and operating orthopaedic surgeon in relation to his back injury was Mr Peter Wilde. Remembering that the back injury was sustained some two and a quarter years after the accident currently under consideration, the following history taken by Mr Wilde, which appears in both his report of 17 August 2011 and that of 20 June 2012, is significant. Mr Wilde has taken the following history:
“Apart from his back injury, he is very fit and well. He is not overweight and generally enjoys a busy active lifestyle. He loves sport.”
This appears to be a history taken on 17 August 2011. To state the obvious, it is not one which is consistent with the plaintiff suffering any major right upper limb symptoms at that time.
(g) Interference with sleep is a consequence often seen in applications such as this and has been referred to in the Court of Appeal as a consequence to which substantial weight might be attached – see, for example, Haden Engineering. That does not seem to be the situation in the present case. In the list of consequences of the back injury, the plaintiff has stated that “I used to sleep through all night, now I wake up 2–3 times per night for easing pain …”. In other words, prior to the plaintiff’s subsequent back injury, he was sleeping through the night and apparently without interruption. This can also be seen as some possible barometer of the level of pain associated with the right wrist injury.
(h) The plaintiff continued to do such things as gardening after the right wrist injury. He told Mr Michael Troy, surgeon, who examined him in relation to the back injury, that he previously did the garden and the lawn. He has sworn that such things as pushing a lawnmower is a problem because of his right wrist injury and that, as a result, he has purchased a self-propelled mower. It is understandable that there would be some restrictions in relation to such activities as a result of the right wrist injury. However, the bottom line is that, at least prior to the back injury, he could do the garden and the lawn.
(i) Similarly, whilst prior to the back and left shoulder problems, he may have experienced some difficulties when swimming recreationally, he continued with his swimming until he suffered the back injury. In cross-examination, the plaintiff said that he had not returned to swimming after the injury to his wrist – see T19. However, his affidavit of 13 November 2014 clearly states that he continued to swim up until he suffered the back injury and had not swum since. His affidavit of 20 April 2011 also refers to him continuing to swim but suffering from pain in the right wrist. Some confusion or contradiction would seem to exist in relation to this.
(j) In both affidavits supporting the present application, the plaintiff referred to his intention to return playing squash if he had not suffered the right wrist injury. However, he freely admitted that he was not playing squash at the time of the relevant accident and had not played for a year or two – see T20. I note that he told Mr Ireland that he was no longer able to play squash. It may be that, even without the other injuries, he would have difficulty playing squash, but the magnitude of this consequence, given that he was not engaging in squash at the time of the accident, might be considered to be somewhat diminished.
(k) The plaintiff agreed that he was able to continue pursuing his hobby as a furniture maker, although he had purchased a nail gun so that he did not have to use a hammer. However, it would seem that furniture making is a hobby which he continues to pursue.
(l)In relation to his ability to engage in weightlifting as an exercise, the plaintiff stated that he is unable to elevate his left arm above shoulder level and that this impacts upon his capacity to engage in weightlifting – see T23. Again, this issue of overlapping symptoms and consequences and the need to isolate and consider the relevant consequences arises.
(m)The plaintiff agreed in cross-examination that many of the matters which he had listed as consequences of the left shoulder injury were identical to those in his affidavits in support of the present application – see T35. He also said that, if he goes to see a doctor about his back, “I don’t go and see him about my shoulder or my wrist at the particular time”.
(n)I have already referred to the somewhat surprising level at which the plaintiff placed his level of pain when giving evidence compared with the description given elsewhere. In cross-examination, he agreed with the proposition that, when seen by Professor Page on 28 April 2010 he had told Professor Page that he had minimal pain, but with a residual dull ache. It is to be remembered that, when seeing Mr Ireland on 2 April 2014, he described a constant dull ache, whilst also referring in his affidavit of 13 November 2013 to the pain as being akin to a dull toothache. On balance, I do not accept that the level of severity of constant pain is that described by the plaintiff in re-examination. The level of pain is a factor to be considered in assessing whether the relevant test has been satisfied. In the present case, I am of the view that such pain is more likely to be in the nature of a dull ache rather than at the level described by the plaintiff in re-examination. Again, this is something which militates against the possible success of his application.
(o)In relation to activities between the injury to the right wrist and that to the back, the plaintiff agreed that he was engaging in running and was also attending a gymnasium during that period. Again, the difficulty of distinguishing between consequences of the right wrist injury and that of the back injury is underlined.
(p)In summary, in the present case the plaintiff seems to me to have faced two difficulties and overcome neither. Firstly, as said in Peak Engineering by Maxwell P, it is necessary for the Court to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury. In that case, the Court seems to have been facing a situation where there were two relevant injuries. In the present case, there were more than two. However, the same reasoning applies, although it is perhaps underlined by the existence of two other injuries. The identifying of the relevant consequences is even more difficult, and it seems to me that a large amount of overlapping has been demonstrated. Despite the best endeavours in relation to the preparation of documents by the plaintiff’s legal advisers, the identification of the relevant consequences is no easy task. It is made no easier by certain aspects of the plaintiff’s evidence which call into question his reliability in distinguishing between the competing consequences.
Secondly, when the relevant consequences are identified as best as they can be, in my opinion they fail to satisfy the relevant test. I have reached this conclusion because of the various matters set out above, including the fact that the plaintiff apparently told his orthopaedic surgeon, Mr Wilde, that, apart from his back injury, he was very fit and well, enjoying a busy active lifestyle and loving sport.
Even leaving that to one side and bearing in mind the matters set out above, it seems to me that the plaintiff has failed to satisfy the requirements of the relevant test.
Conclusion
38 The plaintiff is unsuccessful. He has failed to discharge the burden of proof. His application is dismissed. I shall hear the parties as to any ancillary orders that are required.
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