Van Gameren v VWA
[2025] VCC 1011
•30 July 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-05365
| JASON VAN GAMEREN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TSIKARIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 May 2025 | |
DATE OF JUDGMENT: | 30 July 2025 | |
CASE MAY BE CITED AS: | Van Gameren v VWA | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1011 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the right wrist – pain and suffering – credibility
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Alcoa of Australia Ltd v McKenna [2003] VSCA 182; Hooley v Transport Accident Commission [2019] VSCA 263; D’Agostino v Leach [2010] VSCA 249
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Middleton KC with Mr D Nguyen | Arnold Dallas McPherson |
| For the Defendant | Mr P Over | Minter Ellison |
HER HONOUR:
Introduction
1This is an application for leave to bring common law proceedings pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act2013 (“the Act”) for injuries suffered by the plaintiff from 27 July 2018 to 2 February 2021, during the course of his employment.
2The plaintiff seeks leave to commence proceedings for pain and suffering damages only.
3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning:
(a) “permanent serious impairment or loss of a body function”
4The body function relied upon in this case is the right wrist.
5The relevant legal principles are well known and are not in dispute.
6The impairment of the body function must be permanent.
7The plaintiff bears the overall burden of proof upon the balance of probabilities.
8By s325(1) of the Act, the plaintiff’s right wrist impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
9Section 325(2)(h) of the Act requires all psychological consequences to be ignored in determining the plaintiff’s application in relation to the physical impairment.
10I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11In reaching my conclusions, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Haden Engineering Pty Ltd v McKinnon.[2]
[1](2005) 14 VR 622
[2](2010) 31 VR 1
12The plaintiff relied on two affidavits sworn 24 May 2023 and affirmed 5 May 2025. In addition, both parties relied on medical reports and other material that was tendered in evidence.
13At the hearing, the plaintiff gave evidence and was cross-examined.
14I have read all the tendered material and I will refer to the relevant evidence to the extent necessary in these reasons.
Issues
15The defendant accepted that the plaintiff suffered a complete scapholunate ligament disruption in his right wrist[3] and conceded causation.[4]
[3]Transcript (“T”) 5 Line/s (“L”) 5-7
[4]T 55 L 6-7
16The issues for determination are whether the plaintiff’s pain and suffering consequences meet the “very considerable” threshold required by the legislation, whether there is an organic or non-organic cause for the plaintiff’s injury and the plaintiff’s credibility.
Background and medical history
17The plaintiff was born in June 1978 and is currently 47 years of age. He is right hand dominant and is married with four children, two of which live with him and his wife.
18He completed Year 12 and then worked as a trainee manager at Safeway for three years. He then joined the Royal Australian Army and was enlisted for 11 years where he drove heavy transport and served at various postings around Australia. In 2004 and 2008, he served overseas and left the Army in 2011.
19In 2005, the plaintiff injured his left ankle when he fell off a trailer and underwent 6 months’ rehabilitation during which he was on restricted duties. In 2007, the plaintiff injured his right ankle when he twisted it on uneven ground. He was on restricted duties for one year whilst undergoing rehabilitation. Following the second ankle injury, he sought a discharge from the Army.
20From 2011 to 2016, the plaintiff worked as a tanker driver in Brisbane delivering Liquified Petroleum Gas.
21The plaintiff commenced employment with Origin Energy in Melbourne on 15 February 2016. From 2016 to 2017, he worked as a driver delivering cylinders. For about 1 month in 2017, he worked as a tanker driver delivering Liquified Petroleum Gas. However, in 2018 he was assigned as a tanker driver until July when he was required to fill in for a cylinder driver who was unavailable.
22On 27 July 2018, whilst the plaintiff was delivering a full load to a gas distributor, which involved delivering and manoeuvring about 130 house gas cylinders, each being about 140 centimetres tall and 90 kilograms in weight, he reported feeling pain in his right shoulder.[5]
[5]Affidavit of Jason Van Gameren sworn 24 May 2024, Plaintiff’s Court Book (“PCB”) 12-13
23Initially, the plaintiff believed that his sore shoulder was muscular in nature however, as the pain did not subside, he reported his injury to his employer after a few days, and it was arranged for him to attend a local doctor.
24On 9 August 2018, the plaintiff underwent an X-Ray to the right wrist which showed no bony abnormality, an ultrasound to the right shoulder which showed right sub-acromial bursitis, and an ultrasound to the right wrist which showed no abnormality with the median nerve.[6]
[6]PCB 40
25The plaintiff returned to work as a tanker driver which was lighter work and did not involve any unloading. Upon returning from a holiday in September 2018, he was required to deliver cylinders again. He did this for a few weeks before exacerbating his right shoulder pain whilst unloading a forklift bottle. He was subsequently given lighter clerical duties.[7]
[7]Ibid 13
26The plaintiff was referred to Mr Matthew Mammen on 9 January 2019 who performed a nerve conduction study on 17 January 2019 and subsequently recommended the plaintiff undergo surgery to both his right shoulder and right wrist, as he had developed a carpal tunnel injury to his right wrist. This surgery was performed on 1 February 2019.[8]
[8]Ibid 14
27In April or May 2019, the plaintiff returned to work, initially performing office duties. In July 2019 he was required to deliver cylinders again. However, in November 2019 he obtained a position as a tanker driver.[9] He deposed that he is able to cope with his duties with difficulty.[10]
[9]Ibid
[10]Ibid 6
28On 25 September 2019, the plaintiff reported right wrist pain to his general practitioner, Dr Amaninder Sekhon, who referred him to Mr Mammen again. In or about March or April 2020, the plaintiff noticed a lump in his right wrist with associated aching. An ultrasound showed a ganglion on his right wrist. He deposed that the symptoms he suffered from his right wrist were different to the symptoms he experienced when he was diagnosed with carpal tunnel syndrome.
29The plaintiff saw Mr Mammen and he arranged for the plaintiff to undergo an MRI scan which was performed on 2 November 2020. This identified a complete tear of the scapholunate ligament which required urgent surgery.[11]
[11]PCB 7
30On 1 February 2021, Mr Mammen performed the right wrist scaphoid lunate ligament reconstruction surgery. The plaintiff took three months off work to recover from the procedure and commenced hand therapy during that period.
31On 15 February 2021 he attended Sue Doman, accredited hand therapist following the surgery and she undertook scar management and desensitisation treatment.[12]
[12] Ibid 101
32The plaintiff returned to work on or about 1 May 2021 and initially did two weeks of light work before returning to his tanker driver duties.[13]
[13]Ibid 7
33The plaintiff submitted a claim for impairment benefits on 31 January 2022 in respect of the right carpal tunnel injury and the right scapholunate ligament disruption. Liability was accepted both in respect of that carpal tunnel syndrome and the right scapholunate ligament disruption and surgical scarring. Based on an opinion from Dr Gary Davison dated 28 April 2022, he was assessed as having a 10% whole person impairment in respect of the right scapholunate ligament injury only.[14] In consequence of the injury suffered on 27 July 2018 to the shoulder and the right carpal tunnel, the plaintiff made a common law claim which was resolved.[15]
[14] Ibid 59
[15] T2 L1-9
34In early 2024, the plaintiff was referred to a pain specialist for pain across the scar and was prescribed Lidocaine patches. He also commenced seeing an exercise physiologist for shoulder and wrist pain.[16]
[16] PCB 25
35In mid-2024, the plaintiff consulted an osteopath largely for low back pain, although the osteopath also treated the shoulder and wrist. He attended alternatively between the osteopath and a chiropractor for his low back pain, shoulder and wrist pain.[17] He also commenced seeing a psychologist on a monthly basis.[18]
[17] PCB 25
[18] Ibid 27
36The plaintiff also commenced seeing Benjamin Hibberd, an exercise physiologist, on 8 May 2024 under the Department of Veterans Affairs (“DVA”) scheme for health and well-being. Mr Hibberd treated him for conditions suffered from his time in the Army but also for his wrist condition.[19]
[19] Ibid 45
Treating medical practitioners
Dr Amaninder Singh Sekhon, general practitioner
37Dr Sekhon has been the plaintiff’s treating general practitioner who has been treating him for the right wrist condition. In his report dated 9 April 2025, he expressed the opinion that the plaintiff’s chronic injury had stabilised, but he would struggle with any task involving repetitive lifting, pulling, pushing, twisting and manual handling with the right hand. He also observed restricted movement and 25% of strength in the right hand compared to the left hand. In relation to the long-term, he considered the plaintiff would require input from a hand therapist and may need to use analgesia to manage the pain.
Dr Matthew Mammen, orthopaedic surgeon
38Dr Mammen noted in his report dated 25 November 2020 that the plaintiff was one of his older patients on whom he has undertaken right shoulder bursitis excision as well as a right carpal tunnel release. [20] The plaintiff had presented to him again for a “fresh problem” which he characterised as a continuation of the previous problem.[21] The MRI performed in 2018 had identified a partial tear of a scapholunate ligament which was not symptomatic but had since progressed and was now a complete tear with a disruption, with separation of the scaphoid in the lunate with an apparent diastasis disclosed on the MRI performed in November 2020. The investigations corresponded with the symptoms and the doctor recommended surgery in the form of scapholunate ligament reconstruction. On 19 April 2021, Mr Mammen expressed the view that the reconstruction surgery had gone well and that the plaintiff had a full range of motion and was able to return to full work.
[20] Defendant Cout Book (“DCB”) 53
[21] Ibid
39Mr Mammen was asked his opinion in relation to whether the plaintiff’s condition changed substantially in 2019 following a second injury. Dr Mammen believed that there was a substantial change which led to a change in work capacity. This affected his capacity to engage in recreational activities, and the impairment was likely to be permanent.
The Plaintiff’s medico-legal reports
Mr Russell Miller
40Mr Miller examined the plaintiff on 8 May 2020, and in his report dated 5 June 2020 he took a history of the plaintiff first developing right shoulder symptoms in 2017 for which he sought treatment and had largely resolved prior to a work injury on 27 July 2018. The plaintiff had complained of the onset of pain in the right shoulder and wrist whilst undertaking his work duties. The right arm pain persisted which he reported and led to a period of incapacity. The plaintiff then returned to work on modified duties which did not involve loading or unloading. Upon returning from annual leave in September 2018, he resumed normal duties, and in November 2018 his symptoms deteriorated. He subsequently underwent surgery to the right shoulder and right wrist in February 2019. After three months’ absence, he returned to a graduated return to work program. The plaintiff reported significant ongoing problems with respect to the right shoulder at work to Mr Miller, which he described as the major problem. Moreover, he had not had any sustained benefit following the right shoulder surgery, and the symptoms caused him sleep disturbance.
41The plaintiff also complained of an ongoing ache, discomfort and independent pain in the right/hand wrist, but the symptoms had improved significantly following his surgery and he was not bothered by numbness or tingling.
42Mr Miller undertook a physical examination and had available radiological and other investigations. With respect to the right wrist, he noted that the plaintiff had undergone the carpal tunnel release on 1 February 2019 from which he had a good recovery with a good prognosis. In response to the relationship between the right shoulder/wrist injury at work, he considered this a complex and multifactorial issue. The plaintiff had a constitutional predisposition to develop shoulder and wrist problems, and the significant physical work over a protracted period of time as well as the work injury were all relevant factors. At the time of this examination, whilst he believed the plaintiff had restrictions on his work capacity with respect to the right shoulder, the right wrist did not impose any specific work restrictions.
43In a supplementary report dated 14 August 2020, Mr Miller was asked to address additional documentation and he did not change his views. He remained of the view that the right shoulder and wrist problems remain substantially work-related.
Benjamin Hibberd, Exercise Physiologist
44Mr Hibberd oversees the plaintiff’s exercise and strengthening program as part of the DVA scheme for health and well-being and treats the range of conditions unrelated to his work claim alongside management of his wrist condition. The plaintiff has been doing resistance training for his upper limb with the aim of improving upper limb strength and endurance to help better manage his pain. The plaintiff attends twice weekly for strengthening and exercise physiology with the aim to improve function as well as assist with pain levels. Mr Hibberd was of the view that the plaintiff ought to continue these sessions on a twice per week basis.
The Defendant’s medico-legal reports
Dr Gary Davison
45The plaintiff was examined by Dr Davison, occupational physician, for the purposes of the defendant’s insurer assessing the plaintiff’s request to meet the reasonable costs of the right carpal tunnel surgery to the wrist. He noted electrophysiological evidence of a persisting carpal tunnel syndrome and clinical signs supporting such a diagnosis. Surgical decompression of the right median nerve was appropriate treatment. He also noted the plaintiff had undergone a cortisone injection which provided temporary symptomatic relief, and this was a good prognostic indicator as to the likely success of surgery.
46In a further opinion dated 19 May 2022, for the purposes of assessing the plaintiff’s impairment benefits claim, he noted that the plaintiff was undertaking full-time tanker driver duties until July 2018, and when undertaking cylinder delivery duties, he developed sensory disturbance in the right-hand involving the thumb, index and middle fingers. He noted the plaintiff underwent surgery to the right shoulder as well as an endoscopic decompression of the right carpal tunnel of the wrist on 1 February 2019. This provided symptomatic relief of the sensory disturbance in the right-hand, although there was some persisting pain in the thenar eminence and a recurrent tender lump at the base of the right thumb. There was post-operative physiotherapy and hand therapy, and the plaintiff returned to restricted duties. He was able to return to driving duties and in 2020 he undertook full-time LPG tanker driving duties but continued to experience pain in the right wrist and symptoms worsened significantly in August 2020. This led to surgery by Mr Mammen.[22]
[22]DCB 58-59
47The plaintiff had subsequently returned to work on unrestricted full-time tanker driving duties with no certified restrictions although the plaintiff tended to avoid using his right hand. The plaintiff reported that he had persistent but daily “liveable” pain affecting the right wrist.
48Wrist movements were restricted especially in regard to wrist flexion. The plaintiff reported that his condition had been stable since January 2021 and there were no restrictions in relation to driving, sitting, standing, walking, and manual handling with respect to the right upper limb. Nevertheless, whilst he was able to undertake a range of household chores including lawn and garden maintenance, the plaintiff minimised his right upper limb use and had modified his grip when undertaking such activity. The plaintiff also reported that he had no active treatment for the last 10 months.
Mr Michael Dooley
49Mr Dooley accepted the plaintiff’s history that he had sustained a complete tear of the scapholunate ligament and the right wrist consistent with the 2020 MRI and intraoperative findings which resulted in a surgical repair in February 2021. Mr Dooley on examination noted a good range of motion of the right wrist and no signs of instability, swelling or inflammation. He also did not detect any muscle wasting and considered that whilst there were complaints of pain during testing, there were no significant objective deficits in movement and strength. He was of the opinion that the plaintiff’s reported symptoms and level of this function were out of proportion to the clinical findings. He also noted signs of possible symptom magnification or pain sensitisation and that the degree of disability described by the plaintiff exceeded what would be expected based on the type and treatment of the injury.
Issues and submissions
Plaintiff’s submissions
50It was submitted on behalf of the plaintiff that:
(a) There was a distinction between his current right wrist injury, the subject of this serious injury application, and a prior right shoulder injury which was the subject of a previous serious injury claim and common law settlement finalised on or around 2 September 2020. The injuries relied on in respect of the common law settlement were an injury to the right shoulder and right carpal tunnel syndrome which were separate and discrete injuries and they were compensated by way of a release dated 2 September 2020;
(b) The evidence demonstrated that these injuries were different and separate in pathology and could be considered discretely in assessing the threshold question of serious injury. The right shoulder, which was injured on 27 July 2018, was treated surgically and largely resolved post-surgery. The wrist injury, properly characterised, is a new and discrete injury, notwithstanding some pre-existing asymptomatic degeneration, and did not form part of the earlier claim. This was supported by Mr Mammen’s opinion[23] and acknowledged in correspondence which confirmed that the prior tear was minor and asymptomatic;
[23] Exhibit D
(c) The wrist injury required complex reconstructive surgery, and the plaintiff continued to experience significant symptoms post-operatively. These include pain, reduced grip strength, limited wrist rotation, and associated overuse symptoms in the left limb. The plaintiff continues to receive treatment for the wrist including osteopathy, chiropractic interventions, and pharmacological management;
(d) The right wrist injury has had enduring and serious consequences for the plaintiff’s personal, social, and occupational functioning. He is unable to perform basic tasks such as:
·Making a fist;
·Holding a pen or using a phone with his dominant hand;
·Performing personal hygiene and household tasks; and
·Participating in previously enjoyed activities such as motorbike riding, pool, golf, and skiing;
(e) In contrast, there is no evidence that the right shoulder injury continues to materially impair the plaintiff’s function;
(f) The plaintiff’s current occupational capacity is also impacted primarily by the wrist injury. While he remains employed as a tanker driver, he:
·Avoids long-distance driving due to right hand pain;
·Uses his left hand for tasks involving grip; and
·Has ceased all physical tasks involving pressure on the right wrist;
(g) The defendant sought to attribute some current impairments to the earlier shoulder injury. There is a distinction between the two, and the medical evidence supports the wrist injury as the primary cause of current limitations.
51In Alcoa of Australia Ltd v McKenna,[24] the Court of Appeal confirmed that the sole question in a serious injury application is whether the relevant injury satisfies the statutory test, unless the application is clearly futile. Here, there is an acknowledged medical impairment, causation is conceded and there are continued sequelae.
[24] [2003] VSCA 182
Defendant’s submissions
52The defendant submitted that:
(a) The plaintiff does not satisfy the serious injury test and pointed to the opinion of Mr Dooley to suggest that the plaintiff’s symptoms were disproportionate to the objective findings;
(b) The plaintiff’s current presentation was attributable to his prior right shoulder injury and earlier carpal tunnel syndrome;
(c) There were gaps in treatment and a lack of ongoing GP attendances for the wrist in 2021 to 2023;
(d) There were non-organic components to the plaintiff’s presentation, and the descriptor of pain sensitisation was speculative and unsupported by any psychiatric or pain specialist evidence.
53The defendant referred the Court to D’Agostino v Leach,[25] particularly paragraphs 58 to 60 in the context of what was required in assessing what impairment flows from the right wrist injury. The defendant submitted that in respect of identifying the impairment, a determination was required as to whether or not there was a substantial organic basis for the claimed impairment or whether in part it was caused by non-organic factors (with the onus on the plaintiff to disentangle if there was not a substantial organic basis). It was submitted that this was a difficult enquiry because of the lack of real objective evidence about what had occurred with the full tear since the MRI on 2 November 2020 and the absence of investigations following the repair surgery.
[25] [2010] VSCA 249
54The plaintiff last consulted Mr Mammen on 29 March 2021. There is no X-ray or MRI taken following the surgery and no objective evidence about the state of the wrist post-surgery. It was submitted that there was nothing to suggest that there had been anything but a repair of that tear from the surgery. Dr Davison, when he examined the plaintiff on 28 April 2022, noted that the plaintiff had returned to full-time tanker driver duties although he had the pain that was persistent, but it was “liveable” and described as a dull ache. Dr Davison also noted there were no reported restrictions regarding driving, sitting, standing, walking or manual handling. The defendant conceded that there was objective evidence regarding strength which had been reduced on the right side as well as a reduction in movement relative to the left.
55The defendant submitted that the plaintiff had been told on at least two occasions that there was a chronic regional pain syndrome and that Mr Dooley reported that there was an increase in subjective reporting of the symptoms from the right wrist by the plaintiff which would go beyond what could be expected objectively from the objective evidence with respect to the right wrist.
56The plaintiff sought to convey in his affidavits that there has been ongoing medical treatment in relation to the right wrist which has been regular and that the impairment consequences now flowed from the right wrist rather than the earlier right shoulder injury. There was a paucity of material relied on by the plaintiff that could be considered to be objective evidence.
57If it was accepted that the plaintiff’s condition was substantially inorganic, then the plaintiff had failed to disentangle the consequences arising from the non-organic condition.
58The defendant also submitted that the plaintiff was not a credible witness regarding his subjective experience of right wrist pain.
Credit
59The plaintiff gave his evidence in a clear and forthright manner. He was consistent in both his affidavits and oral evidence, providing detailed accounts of the onset, progression, and impact of his right wrist injury. He made appropriate concessions, including openly acknowledging his prior right shoulder injury and he did not seek to exaggerate or obscure his medical history.
60He readily conceded in cross examination that the shoulder impairment still impacted on his sleep, had stopped him playing golf, affected his gym activities, affected his intimate life, and caused problems when he played with his children and rode his bike.
61While the defendant sought to suggest that some of the plaintiff’s symptoms may be disproportionate to the objective medical findings, notably with its reliance on Mr Dooley’s opinion, the plaintiff’s account of the functional impact of his injury in my view was supported, by the radiological and other imaging, surgical findings, and medical opinions. His reluctance to overuse strong medications while working, and his continued efforts to remain employed despite ongoing symptoms, further support my overall impression of reliability. I accept that the plaintiff presented as a credible and genuine witness.
Compensable injury
62The treating surgeon,Mr Mammen, diagnosed a complete rupture of the right scapholunate ligament with resultingcarpal instabilityandearly degenerative changes relying on his clinical and radiological findings, namely:
MRI (2 November 2020):
· Complete tear of the scapholunate ligament;
· Mild dorsal ganglion;
· Mild degenerative changes at the radioscaphoid and lunate bones;
· Widened scapholunate gap; and
· Scaphoid subluxation.
Intraoperative findings (1 February 2021):
· Complete rupture confirmed;
· Elevated scapholunate angle (80-90 degrees) indicating instability; and
· Carpal malalignment and separation of bones in the proximal carpal row.
63He performed a right wrist scapholunate reconstruction using bone anchors, thermal shrinkage of the ligament to tighten the joint and capsulodesis and repair to stabilise the wrist. Post-operatively in March 2021, Mr Mammen noted the surgery had gone reasonably well, and initially, the plaintiff described an improvement in symptoms, but nevertheless ongoing therapy was recommended. By late 2021, ongoing symptoms were noted to be consistent with chronic post-surgical wrist instability.
64Dr Davison identified the injury as partial tearing initially which progressed over time to full-thickness tearing. He also noted that the right carpal tunnel syndrome had been successfully treated with decompressive surgery and that condition had substantially resolved. There was still residual symptoms and restriction of the right wrist as a result of the right scapholunate ligament disruption. The condition had impacted on the plaintiff’s avocational activities however the plaintiff was able to undertake a full range of these activities by modification of technique. There was a similar situation occurring in the workplace in that he was able to undertake preinjury duties without specific restriction.
65Mr Dooley was prepared to concede that it was possible that the plaintiff suffered a partial tearing to the ligament and then a failure in the remaining part led to a wider dissociation.
66In light of the above, particularly the similar conclusions reached by both Dr Davison and Mr Mammen and noting that Mr Mammen operated and was able to observe the nature and extent of the physiological injury, I accept Mr Mammen’s opinion. I accept that the plaintiff has suffered an organic injury to the right wrist.
Impairment consequences
67The plaintiff’s pain consequences are persistent, intrusive and significantly affect his physical capacity, especially with manual handling tasks and his ability to engage with his family, his home and social life.
68He experiences constant pain in the right wrist radiating into the hand and forearm which he described as throbbing, sharp and burning. It is made worse by certain movements such as bending, twisting or rotating, lifting objects, and fine motor tasks. The pain limits his ability to dress, groom and shower and to attend to his toileting without adaptations. He is now unable to mow the lawn, use tools, carry groceries or perform cleaning duties due to pain and weakness. He avoids tasks which require pressure through the right hand.
69The pain impacts his ability to enjoy golf and participate in other activities such as pool, motorbike riding, skiing and playing with his children. Even if the shoulder was uninjured, the plaintiff’s wrist pain alone would prevent a return to these activities.
70The plaintiff’s sleep is affected as he frequently is woken due to wrist pain. He uses heat packs and patches to manage night-time pain. This results in fatigue during the day, especially when working long shifts, as well as reduced concentration. Irritability has caused a strain on his family relationships.
71The injury has affected intimacy with his partner due to pain related physical limitations and also as a result of the impact on his mood.
Findings
72Having had the opportunity of seeing the plaintiff give his evidence, I accept his affidavit evidence and his sworn evidence as to his pain and suffering consequences and the right wrist restrictions.
73I accept that the radiology, investigations and medical reports confirm that the plaintiff sustained a complete rupture of the right scapholunate ligament with resultingcarpal instability which required surgery and has resulted in pain and suffering consequences.
74Dr Davison took a history that the plaintiff “minimises right upper limb use” and has modified his grip when undertaking activity.[26] He also noted the plaintiff was a pleasant and cooperative historian who appeared to have a good account of himself and there were no pain or illness behaviours observed. He also identified a significant reduction in grip strength in the right hand compared with the left, namely 22 kg on the right and 43 kg on the left. There was no specific muscle weakness evident apart from the grip strength. Wrist measurements measured with the use of a goniometer demonstrated at least a 50% reduction in extension, flexion, radial elevation and ulnar deviation in the right compared with the left.
[26] PCB 51
75Whilst Dr Davison noted the plaintiff had returned to work with no restriction this observation was in the context of the history he was provided that the plaintiff has resumed LPG tanker driving duties. The plaintiff is unable to return to the cylinder delivery role which he undertook prior to his work injury. Dr Davison’s opinion is supportive of the plaintiff having suffered an organic injury to the right wrist which has led to serious consequences.
76I accept that the plaintiff is precluded from undertaking full range of employment activities that he was undertaking before the injury. He is unable to now do work associated with cylinder driving and his flexibility in the labour market is therefore compromised.
77The plaintiff does not have the free and unrestricted use of his right wrist and ability to perform work of a type he regularly engaged in before his injury.
78The consequences complained of in respect of the right shoulder can be differentiated from the consequences experienced as a result of the right wrist as follows:
(a) Whilst in the plaintiff’s first affidavit he deposed to difficulty opening jars as clenching his fist increased his shoulder pain, in his affidavit of 5 May 2025 he specifically deposed to his inability to rotate his wrist, that he had very limited movement in the wrist which impacted his fine motor skills, his handwriting had deteriorated and he was unable to hold a pen. He also had difficulty using a tablet or phone as they caused right wrist pain. He also referred to the reduced grip strength.
(b) His right shoulder impacted his ability to lift in excess of 20 kg without pain as well as lifting above shoulder height. The right wrist injury however affected his ability to lift anything above 10 kg and if he was to hold anything for more than a brief period, he relied on the left-hand.
(c) The shoulder impacted his ability to pull shirts and jumpers over his head when dressing as that produced shoulder pain as did buttoning shirts whereas doing up buttons and shirts exacerbated his right wrist pain.
(d) He deposed to difficulty showering and toileting consequent to the right wrist injury.
(e) He was able to drive for two hours before the shoulder pain increased whereas as a result of his right wrist injury, he used his left hand a lot more as gripping the steering wheel caused right wrist pain as did driving long distances.
(f) He was able to continue cutting the lawns with an electric mower following the shoulder injury but following the right wrist injury he paid a gardener to mow lawns and look after the gardens as those activities caused wrist pain.
(g) In addition to the over-the-counter medication, he resorted to lidocaine patches for the right wrist pain as well as having to ice the wrist after a week at work.
(h) Riding his motorbike led to increased right shoulder pain but he still continued on short occasional rides after that injury. Following his right wrist injury, he experienced pain as a result of twisting the throttle to accelerate. He no longer went to bike shows and he had not ridden his motorbike since his affidavit sworn on 24 May 2023. He bought a three-wheel motorbike which was modified to assist with his right wrist restrictions. The vibrations when riding also led to an increase in pain and hand numbness which affected his ability to control the steering.
(i) Caravanning was difficult in so far as the shoulder was concerned as the set up involved repetitive use of the right shoulder and lifting above shoulder height, however following his right wrist injury he sold his caravan and bought a camper trailer. Using the camper trailer was difficult due to pain and restricted movement in the wrist and he only used the camper trailer twice since 2023. He subsequently sold the camper trailer.
(j) In relation to skiing, he didn’t attempt skiing following the shoulder injury as he did not consider that he would be able to do so because of the instability and pain in the right shoulder. However, he attempted skiing in June 2022 using only the left ski pole as the right pole increased his right wrist pain. He has not been skiing since his affidavit sworn 24 May 2023.
(k) He no longer plays pool as a result of wrist injury as he cannot hold the cue.
(l) His employment is affected as he cannot handle the cylinder work, and he is constrained as taking medication affects his ability to work or operate heavy machinery.
79I consider that the plaintiff’s pain and suffering consequences, as discussed above, as well as the compromised vocational options he is now faced with, constitute a serious long-term impairment to the plaintiff, when judged by comparison with other cases in the range of possible impairments and losses at least very considerable and certainly more than significant or marked.
Conclusion
80Leave is granted to the plaintiff to commence common law proceedings for pain and suffering only in respect of the injury suffered in the course of his employment between 27 July 2018 to 2 February 2021.
81I will hear argument with respect to costs.
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