Viher v Miles Transport Pty Ltd
[2019] VCC 1008
•11 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-17-03356
| LOUIE VIHER | Plaintiff |
| v | |
| MILES TRANSPORT PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17, 18 and 19 June 2019 | |
DATE OF JUDGMENT: | 11 July 2019 | |
CASE MAY BE CITED AS: | Viher v Miles Transport Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1008 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Action for damages – two incidents – denial of negligence and defence of contributory negligence – finding of no negligence for the first incident – finding of negligence for the second incident, and no finding of contributory negligence – identification of injuries resulting from each incident – same or similar injuries allegedly suffered in both incidents – assessment of damages relevant to the injuries resulting from the second incident
Pleadings – pleading of a cause of action which had no proper basis and which was abandoned – failure to plead a cause of action which was to be pursued – concession by the defendant allowing the plaintiff to plead a further cause of action – leave to amend the statement of claim to include the additional cause of action – leave to file and serve an amended defence – pleading of breach of the Occupational Health and Safety Regulations 2007 – no proper basis
Legislation Cited: Occupational Health and Safety Regulations 2007; Manual Handling Code of Practice; Occupational Health and Safety (Plant) Regulations; Code of Practice Manual Handling (Occupational Overuse Syndrome).
Judgment: Judgment for the plaintiff, subject to further submissions by the parties.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | - |
| For the Defendant | Ms R Annesley QC with Ms K Bradey | Wisewould Mahony Lawyers |
Table of Contents
Introduction........................................................................................................................................ 1
The question of a pre-existing injury........................................................................................... 3
The alleged incident of 21 May 2013............................................................................................ 6
The alleged incident of 19 July 2013.......................................................................................... 12
Acceptance by WorkCover.......................................................................................................... 16
Allegation of negligence on 21 May 2013................................................................................. 17
Allegation of negligence on 19 July 2013................................................................................. 19
Other liability issues....................................................................................................................... 21
Medical assessments.................................................................................................................... 22
Which injuries, and which incident............................................................................................ 28
Failure to call witnesses................................................................................................................ 32
Damages........................................................................................................................................... 33
Conclusion....................................................................................................................................... 34
HIS HONOUR:
Introduction
1 The plaintiff conducted the trial of this proceeding very differently from the causes of action pleaded in the Amended Statement of Claim.
2 The Amended Statement of Claim alleges that the plaintiff suffered injury in the course of his employment performing arduous work (paragraph 5) (“the first cause of action”), and suffered further injury on 21 May 2013 in an incident while using a trolley jack in an enclosed trailer (paragraph 6) (“the second cause of action”).
3 The plaintiff alleges that he suffered further injury on 19 July 2013 when an unrestrained trolley cage pallet careered into him (“the third cause of action”). This cause of action was not pleaded in the Amended Statement of Claim. The defendant, however, was prepared to consent to the plaintiff prosecuting that cause of action in this proceeding.
4 I recast the manner in which the plaintiff intended to prosecute the causes of action both pleaded and not pleaded.
5 Firstly, the draughtsperson of the Amended Statement of Claim pleaded both breach of contract and negligence with respect to the first cause of action and the second cause of action. It is unnecessary in such a claim to plead breach of contract. There was no prejudice to the plaintiff by abandoning the cause of action based on breach of contract and relying solely on negligence. I invited him to abandon it, which he did.
6 The draughtsman pleaded a single series of particulars which were supposed to apply. He noted that the plaintiff was suffering depression which was having a significant impact on his recovery. Fortunately, the problems raised by a pleading undertaken in that way was resolved when the plaintiff abandoned the first cause of action; however, that left a number of particulars which were ultimately irrelevant to the second cause of action which needed to be ignored.
7 The draughtsman also pleaded breach of a number of regulations which had no basis in fact or law. I will deal with this pleading later in these reasons.
8 I drafted an amendment to the Amended Statement of Claim to incorporate the third cause of action as follows:
“12.On or about 19 July 2013 while the plaintiff was standing at the back doors of the trailer when an unrestrained rolling cage pallet careered towards him requiring him to take defensive action to avoid being struck by it with the result that the plaintiff suffered further injury.
13.The injuries were caused by the negligence of the defendant, its servants and/or agents not to expose the plaintiff to unnecessary risk of injury.
Particulars
(a)Requiring the plaintiff to continue working when he was fatigued.
(b)Requiring the plaintiff to continue working when he had been at work without sleep for 18-19 hours.
(c)Failing to provide sufficient lighting to permit the plaintiff to undertake his work safely.
(d)Failing to provide a system for restraint of the rolling cage pallet.
(e)Failing to provide locking on the wheels of the rolling cage pallet.
(f)Alternatively, failing to provide chains or ropes to enable the rolling cage pallet to be restrained.
14.By reason of the matters aforesaid, the plaintiff suffered injuries, loss and damage.
Particulars of Injury
Injury to the right shoulder, arm and hand.
Aggravation of the pre-existing injury to the right little finger.”
9 I granted the defendant leave to file and serve an amended defence. It was filed on 18 June 2019.
10 Following the existing Amended Statement of Claim being tidied up, and with the addition of the further amendment relevant to the third cause of action being added, the proceeding commenced. Both parties understood that the plaintiff alleged that he was injured in the course of and within the scope of his employment with the defendant on 21 May 2013 and on 19 July 2013. Furthermore, that both incidents were the result of negligence on the part of the defendant.
11 By its Amended Defence, the defendant did not admit that the incident of 21 May 2013 occurred. It denied that it was negligent, and it alleged that if it was negligent, that the plaintiff was guilty of contributory negligence. In relation to the incident of 19 July 2013, it pleaded its defence in the same way and to the same effect. In the course of the defendant’s final address, it refined the allegations of contributory negligence upon which it sought to rely. I will return to that later in these reasons.
The question of a pre-existing injury
12 The plaintiff applied for a job as a truck driver with the defendant. He was interviewed by Mary Miles (“Mrs Miles”) who is the transport manager of the defendant.[1] The interview took place on 28 March 2013. The substance of the interview was recorded by Mrs Miles on an interview form.[2]
[1]Exhibit 11, Amended Joint Court Book (“CB”) CB 263-268
[2]Exhibit 2, CB 244-248
13 Mrs Miles said that the plaintiff volunteered that he had a pre-existing problem with his right little finger. At the time of the interview, she recorded the following:
“Louie was very upset about not having a job. [He] showed me his right sore finger, which he said would not be a problem for [the] driving position we have. I have decided to employ him.”[3]
[3]Exhibit 2, CB 244
14 In a witness statement dated 29 April 2019, Mrs Miles described the interview and what the plaintiff said about the pre-existing problem with his right little finger as follows:
“4.On 28 March 2013, I interviewed Louie Viher (‘Louie’) for the role of interstate truck driver. At the time, Louis showed me his right little finger, which appeared to be crooked or bent. He told me it was sore but it would not affect his ability to do his job. I completed a job application form at the time of this interview, which is dated 28 March 2013.”[4]
[4]Exhibit 11, CB 264
15 A part of the interview form was completed by the plaintiff. Clause 5.0 comprised a series of questions about particular aspects of the plaintiff’s medical history. The plaintiff was asked the following questions:
· “Have you any injury or illness which could be aggravated by the type of work you are applying for?”
· “Have you ever suffered any muscle or ligament strains?”
· “Have you ever suffered any joint strains or damage?”
16 Each question asked him to circle “Yes/No.” To each question the plaintiff circled “No”. They are the only questions relevant to musculoskeletal injury. These answers are at odds with what the plaintiff is alleged to have said about a pre-existing problem with his right little finger, and the observations of that finger made by Mrs Miles.
17 The plaintiff made no reference to suffering any pre-existing problem with his right little finger in his serious injury affidavit.[5] In a short undated statement, he denied that he had suffered any such injury. He referred to a pre-employment medical examination during which he said that the examining medical practitioner examined his hands.[6]
[5]Exhibit A, CB 193-196
[6]Exhibit B, CB 197
18 The pre-employment medical examination was conducted by Dr Prathana, general practitioner, on 10 April 2013. The clinical note which records the medical examination is cryptic in the extreme. Apart from recording that the plaintiff required the examination for the purpose of his employment, it otherwise recorded that he was a “well looking male”, and otherwise none of the other aspects of the medical examination revealed anything of note.[7] Dr Prathana provided a medical report dated 9 May 2017 which referred to the pre-employment medical examination. She said that the examination did not elicit any obvious abnormalities and that otherwise her examination of him was normal.[8]
[7]Exhibit E, CB 49
[8]Exhibit E, CB 79
19 Under cross-examination, the plaintiff was taken to the interview form. It was put to him that he volunteered that he had suffered a previous injury to his right little finger. The plaintiff denied not only that he had suffered a previous injury to his right little finger, but also that he said anything of the sort to Mrs Miles. The plaintiff added that Mrs Miles did not write those remarks on the form at the time of the interview.[9]
[9]Transcript (“T”) 55-60
20 The plaintiff completed a Worker’s Injury Claim Form dated 3 October 2013. In answer to a question “what happened and how were you injured?” he wrote:
“Trolley Jack spun around.
I lost control and jammed finger between Handle + Wall of Trailer.
Re injured Finger 2 months Later.”[10]
[10]Exhibit 6, CB 187-188
21 Mrs Miles completed an Employer Injury Claim Report dated 4 October 2013 in response to the plaintiff’s Claim Form.[11] It was accompanied by a letter from the defendant dated 4 October 2013 signed by Mrs Miles in which she said that she believed that the injury was an old injury.[12]
[11]Exhibit 17, CB 189-190
[12]Exhibit 17, CB 260
22 Under cross-examination, the plaintiff challenged Mrs Miles’ evidence that he had suffered a previous injury to his right little finger. The cross-examination did not shake her evidence on that issue.
23 There is no issue that the plaintiff was interviewed by Mrs Miles on 28 March 2013. I prefer the evidence of Mrs Miles that what she recorded of the plaintiff having a right sore finger was written contemporaneously with her interview of him. I also prefer Mrs Miles evidence that she observed the plaintiff to have a crooked or bent right little finger at the time when she interviewed him.[13]
[13]T227
24 However, there is no evidence of the extent of any pre-existing abnormality to the plaintiff’s right little finger. All the evidence discloses is that the plaintiff had a sore right little finger which was crooked or bent to some unknown degree, but according to the balance of what Mrs Miles recorded at the interview, it was not something which the plaintiff considered would interfere with his capacity to drive. When Mrs Miles was armed with the pre-employment medical examination she had no hesitation in offering the plaintiff employment. I infer that whatever she observed relevant to the plaintiff’s right little finger was not anything of consequence to her when she considered his fitness to be employed by the defendant.
25 As will become clear later in these reasons, no examining medical practitioner obtained any history of a pre-existing injury to the plaintiff’s right little finger.
The alleged incident of 21 May 2013
26 In order to determine the answer to the question whether the incident of 21 May 2013 occurred, I think it is necessary to set out sufficient of the evidence about what occurred and why the defendant submitted that the plaintiff’s account of what occurred is implausible and should be rejected.
27 On 21 May 2013, the plaintiff drove a loaded semitrailer owned and operated by the defendant to the Sydney flower market. He drove it to a large car park where he parked a trailer. He then used a trolley jack to shift loaded pallets to the rear of the trailer so that they could then be unloaded from the trailer by a forklift.
28 The defendant produced a book of 14 photographs which depict a trolley jack, the rear of the trailer and containers which the plaintiff was moving with the trolley jack at the time when the incident occurred.[14]
[14]Exhibit 1
29 Photographs 3, 4 and 5 depict the rear of a trailer. The particular aspect which is of importance in Photograph 3 is the two lights shown on the ceiling in the foreground on the left-hand side, and another in the background on the right-hand side. In Photograph 4 there are three lights shown on the ceiling in the middle of the photograph on the left-hand side, in the foreground on the right-hand side and in the background on the right-hand side.
30 Photograph 1 depicts a trolley jack. The stem of the handle is used for two purposes - one is to pump up the tynes of the trolley jack, and the other is to swivel the handle as needed to manoeuvre it.
31 Under cross-examination, the plaintiff was taken through the photographs and essentially agreed that what the photographs depict is not controversial.[15]
[15]T36-47
32 The plaintiff said that the incident occurred at night. The only lighting available was from the internal lights of the trailer, lighting from a forklift engaged in unloading the trailer, and other lighting within the car park.
33 The most detailed description of how the plaintiff said the incident occurred is contained in his most recent witness statement.[16] That description is accompanied by a hand drawn diagram prepared by the plaintiff. It is an aerial view of the trailer depicting the point where the plaintiff operated the pallet jack picking up a pallet, then walking backwards with the pallet jack to a point where he intended to perform a 180-degree turn in a clockwise direction in order to have the pallet facing toward the open end of the trailer.
[16]Exhibit D, Joint Supplementary Court Book (“SCB”), SCB 3-12
34 The plaintiff described how the incident occurred in his most recent witness statement as follows:
“The injury occurred as I rolled the pallet from the front of the trailer to the rear doors, using a pallet jack, along the ribbed trailer floor… The pallet was to be fork lifted down once in position. I needed to turn the pallet 180 degrees to face the door for fork lifting out… In the awkward process of walking backwards in a sharp circle to turn the pallet into place, a piece of wood approximately 20cm in length appeared to have jammed the jack/pallet causing a sudden stop. This ripped at my hand, pulled me off balance causing me to fall against trailer wall. I fell in this direction still holding the handle of the pallet jack. I then landed sideways against the right-hand side wall of the trailer where my hand, arm and shoulder were compressed against the wall.”[17]
[17]SCB 3-4
35 Additionally, the plaintiff expanded on his account of what occurred under cross-examination. He said that he had moved about 3 metres down the trailer from where he picked up a pallet with the trolley jack before one of the wheels of the trolley jack hit a piece of wood. He estimated that the piece of wood was about 8 inches long by an inch and a half to 2 inches wide. It was sitting on top of the ruts of the flooring of the trailer.[18]
[18]T125-138
36 The plaintiff was candid in saying that how the piece of wood found its way onto the floor of the trailer “is an unknown”.[19] He said that he was unaware of the state of the floor of the trailer before the trailer was loaded. He played no part in the loading of the trailer.[20] He conceded that it was possible that some debris might become present on the floor of the trailer during the journey to the Sydney flower market.[21]
[19]T42
[20]T45
[21]T42 and 122
37 Mr Geoff Miles (“Mr Miles”) is the operations manager of the defendant and the son of Mrs Miles. In his witness statement dated 29 April 2019, he described a system of inspection and cleaning of the floor of the trailers:
“6.Truck drivers are not required to load the trailers. I load the trailers using a pallet jack, and if the loading is not performed by me it will be done by my sister Teresa.
7.At the time of loading the trailers, I do a visual inspection of the trailer to ensure there isn’t any debris or loose material on the floor as this could impede my ability to load the trailer and potentially cause difficulties for persons unloading the trailer. If there is any debris or loose material I will remove it from the trailer prior to performing the loading.
8.The trailers are loaded with the same freight items on each occasion, with their being a mixture of boxes, bins, buckets and trolleys. The load is secured in the trailer by the positioning of the various freight items and by using shoring bars that can be installed at any point along the trailer to ensure that items such as cages are kept in place … .”[22]
[22]Exhibit 19, CB 270-271
38 Under examination-in-chief, Mr Miles described the system employed by the defendant to inspect the floor of the trailers and to clean them.[23] He said that he walks through the trailer and looks at the floor and the walls for any debris that needs to be cleaned away. The cleaning is undertaken by using an air blower or hosing down the floor of the trailer with a high-pressure hose. He keeps a record which he described as a “register” in his office of the occasions when inspection and cleaning occurs. He was referred to a handwritten document with dates in the left-hand column and the registration numbers of vehicles in a right-hand column.[24]
[23]T291-292
[24]Exhibit 20, CB 240
39 Under further examination-in-chief, Mr Miles was asked about servicing of the vehicles and checking lights within the trailers. He said the lights are checked. If a globe requires replacement then that is recorded in a maintenance register which he keeps.[25] Similar to the other register, it is a handwritten document with dates in the left-hand column and the work undertaken referred to in dot points in a right-hand column. Mr Miles said that the trailers used by the plaintiff were subject to this level of inspection, cleaning, servicing and replacement of light globes.
[25]Exhibit 21, CB 241
40 Mrs Miles said that the pallets belong to a company known as Chep, which hires the pallets to the defendant. She said that the pallets are new when hired. She said that the defendant does not have a system of inspection of the pallets; however, she said that when the trailer is unloaded, the pallets are “dehired”, meaning that they are not returned for further use by the defendant.[26] Mr Miles gave the same evidence, but he added that the actual freight is loaded onto the pallets by the customer for whom the defendant is undertaking the work of carriage to the Sydney flower market.[27]
[26]T237-238
[27]T298
41 The plaintiff was subject to very particular and searching cross-examination which dissected the critical parts of his evidence. The following are not an exhaustive account of each and every matter put in cross-examination, but were central to the defendant’s submission that the plaintiff’s account is implausible:[28]
[28]T125-138
· Precisely what movements the plaintiff was undertaking at the time when a wheel of the trolley jack hit the piece of wood. A comparison was made between a number of accounts the plaintiff had given relevant to the way in which the trolley jack behaved after it hit the piece of wood.
· The position of the plaintiff’s hands on the handle of the trolley jack. The plaintiff maintained he had both of his hands were on the handle, but later changed that account in describing that one hand was against the load on the pallet sitting on the pallet jack.
· How it could be that the action of the trolley jack hitting the piece of wood would have compressed him against the right side wall of the trailer in between the handle and the wall?
· If he did suffer an injury of any significance, he did not seek any medical treatment.
· If he did suffer an injury of any significance, he did not report it to the defendant.
· He continued working unhindered until September 2013 without complaint.
· If he suffered an injury to his right shoulder, he did not refer to that injury in the Claim Form.
· If the lights were not working in the trailer, then he did not report that when he had reported other problems with other vehicles he used – worn tyres, a starter motor and hose fittings, a passenger mirror bracket and a cracked windscreen and headlight globe.[29]
[29]Exhibit 15, CB 252, 254, 255 and 259
42 Under cross-examination, the plaintiff said that he was certain that the incident occurred on 21 May 2013. Firstly, he was able to identify the date of the incident because it was four days before his birthday, and, secondly, he essentially said it was an incident of such significance that it was unlikely that he would not remember it.[30]
[30]T123-124
43 The plaintiff’s explanation for not seeking medical treatment or reporting the incident is referred to briefly in his more recent witness statement. He said that he incorrectly assumed that he had suffered a bad bruise or strain, and that he is not someone who would generally complain because of a concern not to put his job in jeopardy.[31] I will refer to this in more detail when I deal with what the plaintiff said occurred on 19 July 2013.
[31]Exhibit D, SCB 4
44 I think it is more likely than not that the incident did occur. There are many reasons why I have reached that conclusion.
45 Firstly, the plaintiff has given an account of the set up of the trailer, how it was loaded and how it was to be unloaded with his assistance, which is not controversial.
46 Secondly, the method used by him to move the loaded pallet was consistent with what he was expected to do in assisting with the unloading of the trailer.
47 Thirdly, despite the propositions put that the trolley jack would have behaved differently after it hit the piece of wood, I see nothing in the account given by the plaintiff that is so implausible that it should be discounted altogether.
48 Fourthly, I accept the plaintiff’s evidence that he thought that any injury he suffered resulting from the incident was of no consequence. There appears to me to be good support for that, because he continued working without incident until the second incident occurred.
49 Fifthly, and I think most importantly and persuasively, the plaintiff lodged the Claim Form in which he described, albeit very briefly, the very incident upon which the first cause of action is based. I think that is a strong piece of evidence, when weighed into the balance with all of the other evidence, which supports the conclusion I have reached that the incident did occur and in the manner described by the plaintiff.
The alleged incident of 19 July 2013
50 In order to determine the answer to the question whether the incident of 19 July 2013 occurred, I think it is also necessary to set out sufficient of the evidence about what occurred and why the defendant submitted that the plaintiff’s account of what occurred is implausible and should be rejected.
51 Firstly, I will return to the photographs. Photograph 14 depicts a prime mover and two trailers similar to the defendant’s rig which the plaintiff drove to the Sydney flower market.
52 Photograph 13 shows the vacant car park. In the immediate foreground is a concrete marked roadway. To the right of the marked roadway is fairly large car park. The foreground of the photograph is north, the background is south, the wall on the right-hand side behind two forklifts is west, and the building to the far left is east.
53 The plaintiff parked the relevant trailer in an east/west configuration. The front of the trailer was facing west, and the rear of the trailer was facing east, facing towards the buildings on the left-hand side of the photograph.
54 The plaintiff said that there is a fall in the surface of the car park from west to east. He estimated that between the wall to the west and the eastern side of what is shown in Photograph 14 to the lowest point of the marked roadway is a 2 to 3 foot drop.[32] Mr Miles agreed that there was a fall in the surface of the car park from west to east. He did not give any evidence of the degree of the fall.[33] Mrs Miles was unaware that there was a fall in the surface of the car park.[34]
[32]T177
[33]T297-298
[34]T236
55 The most detailed description of how the plaintiff said the incident occurred is contained in his most recent witness statement.[35] That description is accompanied by a hand drawn diagram prepared by the plaintiff. It is an aerial view of the trailer depicting the point where the plaintiff operated the pallet jack picking up a loaded pallet, turning 180 degrees so that he was facing toward the back of the trailer, and then walking forward operating the pallet jack.
[35]Exhibit D, SCB 3-12
56 The plaintiff described how the incident occurred in his most recent witness statement as follows:
“ … I dropped the pallet and boxes at the rear of the trailer with the trolley jack lowering the pallet onto the floor at the back doors of the trailer. Once I had done this, I heard a noise behind me. Alarmed, I spun around and tried to protect myself from the rolling cage pallet careering towards me due to the sloping floor. I threw my right hand out in a defensive action and heaved forward my right hip and shoulder to take the load of impact to avoid being crushed. This action was an instinctive reaction happening within a fraction of a second. I immediately experienced pain, a crushing sensation, aching and tingling in my arm and a dull ache and discomfort in my shoulder and pulling and weakening of my finger. … .”[36]
[36]SCB 5
57 The rolling cage pallet is depicted in photograph 10.[37] Mrs Miles said that the pallet is owned by a customer of the defendant. When the customer delivers it to the defendant it is already loaded.[38]
[37]Exhibit 1
[38]T284. A loaded version of it is referred to at SCB 35
58 Under cross-examination, the plaintiff said that the rolling cage pallet did not commence moving after he used the pallet jack to pick up a pallet which was effectively against it. He estimated that the distance between the point where the rolling cage pallet was situated to the end of the trailer was about 10 to 12 metres, and therefore, it travelled that distance before he heard the noise of it careering towards him that caused him to turn around. He estimated that it was moving at a fast walking pace. By the time he became aware of it careering towards him, he had little time to get out of the way.[39]
[39]T152-154
59 Mr Miles described the system of loading the rolling cage pallets onto the trailer. They are loaded using a pallet jack, and I assume that means that the pallet jack was used to take it to the point where it was then dropped onto the floor of the trailer. The wheels shown in Photograph 10 are then locked to the floor and against the wall by using a foot to turn the wheels sideways. If the wheels are positioned in that way then it is very unlikely that the rolling cage pallet would roll.[40]
[40]T293 and 298
60 Mr Miles also said if the wheels were not locked and the pallet in front of it was moved away, he would expect the rolling cage pallet to move, presumably if the trailer is on the slope described by the plaintiff. If it did roll it would make a loud noise which would be heard.[41]
[41]T293-294
61 Under cross-examination, Mr Miles said that he has had the experience of a rolling cage pallet roll, presumably from the position where it was dropped in a trailer. He said he was aware of that occurring because he could hear it. He denied that a journey such as that undertaken by the plaintiff could cause the wheels to move from a locked position.[42]
[42]T307
62 Under further cross-examination, Mr Miles said that a shoring bar of the kind shown in Photographs 2 and 3 would have been ineffective to maintain the rolling cage pallet in position. He said that the defendant did not use other means of securing the rolling cage pallet, such as using ropes or chains, because kicking the wheels into the locking position as he described earlier would prevent the rolling cage pallet from moving.[43]
[43]T294-259
63 Under further cross-examination, it was put to the plaintiff that he would have been furious with the defendant for exposing him to potential serious injury, and therefore, he would have reported the incident to the defendant. Additionally, it was put to him that he would have sought medical treatment given that he said in his most recent witness statement that he had “experienced pain, a crushing sensation, aching and tingling in my arm and a dull ache and discomfort in my shoulder and pulling and weakening of my finger”. The plaintiff said that despite the incident and the injury he believed he had suffered, he neither reported the incident nor sought any medical treatment.[44]
[44]T156-158
64 The plaintiff said more about the reasons why he did not report the incident or seek medical treatment in his more recent witness statement. He assumed that he had suffered “bad bruising” and that he hoped he would “come good”.[45] Mrs Miles said that on 29 August 2013, the plaintiff reported to her that he had suffered an injury to his right little finger, but in different circumstances than described by the plaintiff.[46] Mr Miles appears to agree that the plaintiff did make a report that he had suffered an injury, but, again, in different circumstances than described by the plaintiff.[47] Whatever conversation occurred between the plaintiff and Mrs Miles and Mr Miles on 29 August 2013, it did comprise a report of an injury which the plaintiff was asserting he had suffered while undertaking work for the defendant.
[45]SCB 5
[46]CB 267
[47]CB 271
65 I think it is more likely than not that the incident did occur. There are many reasons why I have reached that conclusion, some of which are similar to the reasons why I think it is more likely than not that the incident of 21 May 2013 occurred.
66 Firstly, the plaintiff has given an account of the set up the trailer, how it was loaded and how it was to be unloaded with his assistance, which is not controversial.
67 Secondly, the method used by the plaintiff to move the loaded pallet from in front of the rolling cage pallet was consistent with what he was expected to do in assisting with the unloading of the trailer.
68 Thirdly, if the wheels of the rolling cage pallet were not locked in position as described by Mr Miles, there was a risk that it would roll, and I think that was very likely given the fall in the car park and the angle on which the trailer was situated. Again, this does not appear to be controversial.
69 Fourthly, I am more troubled by the reasons why the plaintiff did not seek medical treatment and report the incident, because he appears to have suffered a significant injury to his right upper body. It would appear that he thought that the injury would resolve, which is what he thought about the injury he suffered in the incident of 21 May 2013. Despite my misgivings, they are not significant enough for me to conclude that it was unlikely that the incident occurred.
70 Fifthly, the plaintiff made a complaint to Mrs Miles and Mr Miles on 29 August 2013 about suffering an injury. He subsequently lodged the Claim Form in which he made reference to suffering a further injury after the initial incident of 21 May 2013. I repeat what I said about that in connection with the incident of 21 May 2013, that I regard that evidence as being important and persuasive. It is for the same reasons that I think the evidence supports the conclusion that the incident did occur and in the manner described by the plaintiff.
Acceptance by WorkCover
71 During the trial, reference was made by the plaintiff to receipt of compensation payments. Mrs Miles gave evidence that after the plaintiff lodged the Claim Form, that payments of compensation were made to him. I called on the defendant to consider making what admissions it was prepared to, that the plaintiff had lodged a claim which had been accepted and subsequently, compensation was paid to him.[48]
[48]T265
72 The defendant very properly admitted that the plaintiff made a claim for injuries identified in the Claim form. The claim was accepted, limited to the plaintiff’s right finger and arm. The defendant also admitted that it paid for two cortisone injections into the plaintiff’s right shoulder.[49]
[49]T347
73 The acceptance of a claim can be used as an admission that the event described in the Claim Form occurred and that the plaintiff suffered injury as a result of that event. The question is whether the acceptance of the claim should influence me in more readily accepting that the events occurred, resulting in the claimed injuries.
74 Of course, whether I go that far depends on whether I am satisfied that the person who made the decision to accept the plaintiff’s claim had access to all the relevant facts. It is for that reason that I decided to, firstly, analyse all of the evidence to understand whether the decision-maker had sufficient of what I now understand was before them in making the decision to accept the claim.
75 I think the decision-maker had sufficient relevant facts to validly make an assessment of the claim. I consider that the acceptance is an additional factor in me reaching the conclusions that I have that the incidents occurred.
Allegation of negligence on 21 May 2013
76 I am not satisfied that the plaintiff has established that there was any negligence on the part of the defendant which was a cause of the injuries he suffered on 21 May 2013.
77 The concept of negligence is well established. It requires the plaintiff to establish a failure on the part of the defendant to take reasonable care for his safety. That does not carry with it a need to safeguard him from all dangers which might conceivably arise.
78 I think that it was reasonably foreseeable that if an object impeded the pathway of the trolley jack as used by the plaintiff, there was a risk that a wheel of the trolley jack would hit it and suddenly stop moving, with a risk to the plaintiff that he would suffer injury in the manner which he says he did.
79 However, the defendant understood that it was reasonably foreseeable that transporting flowers and plants in the baskets and containers referred to in the photographs on timber Chep pallets carried some risk of debris falling to the floor of the trailer. It is for that reason that a system of inspection and cleaning was developed, implemented and maintained by the defendant. The system was reasonable in managing the plaintiff’s exposure to the risk of suffering injury while using the trolley jack across the floor of the trailer.
80 The plaintiff candidly admitted that he does not know where the piece of wood came from, and was unable to postulate an hypothesis consistent with it being there at the time when the trailer was loaded, or breaking off a pallet in the course of the loading of the trailer, or breaking off in the course of his unloading of the trailer.
81 I introduced the of issue whether the defendant should have inspected the pallets to ensure that there were no breakages or likely breakages which would lead to debris from the pallets falling onto floor of the trailer. The only evidence about the quality of the pallets came from Mrs Miles, who described the pallets as new, and after delivery would be de-hired. This evidence put to an end any basis upon which the plaintiff can argue that the negligence lies in failing to inspect the pallets and eliminate the prospect of breakages falling onto the floor of the trailer.
82 The real position occupied by the plaintiff is that there was no lighting in the trailer. The conflict in the evidence on this issue is stark. The plaintiff maintains that the lighting in the trailer was completely absent. Mr Miles, by reference to a register, said that there was no evidence to support the conclusion that the lights were not working. The defendant submitted that the plaintiff had not reported the absence of lighting despite having reported other defects without hesitation in the past.
83 The plaintiff put the issue of lighting in a curious way. Firstly, it was that without lighting he had no chance to use what lighting was available to observe the piece of wood, but in his final submissions, he lead me to believe that he did not think the lighting was of any assistance anyway. He did not adduce any evidence to demonstrate that there could have been better lighting provided in some way which would have availed him of the chance to see the piece of wood. His case in this respect was put unsatisfactorily.[50]
[50]T408-409
Allegation of negligence on 19 July 2013
84 I am satisfied that the plaintiff has established that there was negligence on the part of the defendant which was a cause of the injuries he suffered on 19 July 2013.
85 It was reasonably foreseeable that if the method of locking the wheels failed, then the rolling cage pallet was very likely to roll when the trailer was parked on a fall. That is beyond contest because of the evidence of Mr Miles that he had experienced that very thing happen to him.
86 What the defendant should have done as a reasonable employer in managing the plaintiff’s exposure to the risk of suffering injury by being struck by the rolling cage trolley was to secure it by other means which were available and practicable.
87 I accept Mr Miles’ evidence that a shoring bar was not the answer, because it might result in movement of the load or might pop out under strain; however, securing the load by a simple means of ropes and chains would have achieved the result of preventing the rolling cage trolley from moving at all, or limiting, the extent of its movement. His own evidence proved the inadequacy of the system employed by the defendant.
88 What this results in is that the real issue is whether the plaintiff was guilty of any contributory negligence. The defendant submitted in the ultimate that the contributory negligence amounts to the plaintiff’s failure to hear the movement of the rolling cage trolley and to avail himself of an opportunity to move out of the way of it. Furthermore, that he applied his hip and shoulder to the rolling cage trolley, putting himself in danger by doing so.
89 The plaintiff agreed that the distance between where the rolling cage trolley was situated in the trailer and where he was standing was about 10 to 12 metres. Mr Miles said that the trolley makes a loud noise. The aggregate effect of that is, according to the defendant, that the plaintiff could have heard it coming and could have got out of the way with some ease.
90 The plaintiff, on the other hand, says that he heard something, turned and it was almost the agony of the moment that the rolling cage trolley was on him, and he reacted by applying his hip and shoulder to it almost instinctively to protect himself.
91 The plaintiff has a duty to take reasonable care for his own safety. It requires the defendant to prove that a reasonably prudent person in the plaintiff’s position, having regard to all of the circumstances, would have done something different which the plaintiff did not do, or would not have done, something which the plaintiff did.
92 It is difficult to comprehend how the case in contributory negligence is really being put by the defendant. After all, the plaintiff was following the defendant’s system of work, and was acting in accordance with it at the time when the rolling cage trolley was set in motion. There is scarcely room, where this is really a matter of the agony the moment, for a finding of contributory negligence.
Other liability issues
93 The plaintiff devoted an inordinate amount of time and effort on fatigue which he alleges he suffered as a consequence of being required to be on the road and otherwise undertaking work at the direction of the defendant. He produced documents relevant to the hours that he drove on the road, hours he spent working when not on the road, and hours which he should have spent resting which were expended on work for the defendant.
94 The plaintiff could not demonstrate that fatigue was in any way a contributor to the occurrence of either incident. The plaintiff conceded that there was no such evidence. It was a conclusion I would have reached had he not made that concession.
95 The plaintiff pleaded that his injuries occurred as a result of a breach by the defendant of its duties under the Occupational Health and Safety Regulations 2007 relevant to manual handling and plant and/or the Manual Handling Code of Practice and/or the Occupational Health and Safety (Plant) Regulations and/or the Code of Practice Manual Handling (Occupational Overuse Syndrome).
96 The plaintiff particularised the breach of statutory duty, but only referred to regulations relevant to manual handling and not the other regulations.
97 Regulation 3.1.1 places an obligation on an employer to identify any risk undertaken by an employee which involves hazardous manual handling. The only manual handling which the plaintiff undertook was controlling the trolley jack, which is not manual handling falling into the definition of manual handling in Regulation 1.1.5.
98 Regulation 3.5.1 provides that the regulations relevant to plant only applied to specific types of plant. The manual operation of a trolley jack is not included, so the regulations simply do not apply.
99 The pleading of a breach of the Regulations is without any foundation at all and does not appear to have ever had a proper basis.
Medical assessments
100 The plaintiff’s claim for damages is limited to damages for pain and suffering and loss of enjoyment of life. The task in making such an assessment is exceptionally difficult for reasons which I will make plain shortly.
101 Firstly, having accepted the evidence of Mrs Miles that the plaintiff complained of a sore right little finger, accompanied by her observation the finger was crooked or bent, led me to conclude that the plaintiff did have a pre-existing problem with his right little finger. No evidence was adduced by the plaintiff to demonstrate the cause of his right little finger being crooked or bent or why it was sore.
102 Despite the lack of evidence, the condition of his right little finger did not interfere with his capacity to perform the tasks required of him by the defendant. It is clear from my summary of the work which the plaintiff was required to perform when the two incidents occurred that he was involved in a fair measure of manual work which would have placed stress and strain on his right hand, and very probably his right little finger.
103 It would appear that the plaintiff first sought treatment from Dr Shahbaz, general practitioner, at the Yarra Valley Community Medical Service. He referred the plaintiff to have an x-ray, which was taken on 6 September 2013. The report of the radiologist is of marked soft tissue swelling, with bones and articulations appearing to be normal.[51] There is no note of the plaintiff’s right little finger being crooked or bent.
[51]Exhibit E, CB 36
104 It would appear that the plaintiff then saw Dr Barson at the same clinic. There are no reports from Dr Shahbaz, nor from Dr Barson. There are three referral letters written by Dr Barson which provide some detail relevant to when the plaintiff first sought treatment and for what medical conditions.
105 The first are letters of referral dated 11 November 2013 to a physiotherapist and to Mr Maloney who is probably a plastic surgeon and hand surgeon. The letters noted that the plaintiff had injured his right little finger in May 2013, they also noted that he had “re injured the finger twice since at work”. On examination, Dr Barson noted that the plaintiff had “an obvious deformity”, and also complained of pain in his arm.[52] Accompanying the letters were x-rays of the plaintiff’s cervical spine, right shoulder, and an ultrasound of his right shoulder.
[52]Exhibit E, CB 60
106 The only other letter of referral from Dr Barson is to Mr Crock, orthopaedic surgeon, who advised the plaintiff to seek treatment from Mr Berger, orthopaedic surgeon.[53]
[53]Exhibit E, CB 70 and 71
107 Dr Tate, general practitioner, also at the same clinic, appears to have taken over the plaintiff’s treatment some time in 2014. Dr Tate provided two short reports dated 10 September 2014[54] and 22 October 2015[55]. These reports provide a brief summary of the treatment which the plaintiff was provided through 2013 and 2014 primarily for the injury to his right little finger, and four episodes of shooting pain and associated arm pain.
[54]Exhibit E, CB 53-54
[55]Exhibit E, CB 56
108 I infer that the plaintiff also complained of a problem with his right shoulder because Dr Barson referred him to have an x-ray and ultrasound of his right shoulder, and by July 2016, Dr Tate was of the view that the plaintiff required an MRI scan of his right shoulder.[56] An MRI scan was taken on 2 August 2016. The radiologist noted moderate adhesive capsulitis; partial-thickness tear at the junction of the posterior supraspinatus and anterior infraspinatus tendon footprint insertion on the background of moderate supraspinatus tendinopathy, and moderate acromioclavicular joint degenerative changes and subacromial bursitis.[57]
[56]Exhibit E, CB 57-58
[57]Exhibit E, CB 43-44
109 The plaintiff saw Mr Berger on 12 February 2014 for “assessment and management of his right small finger injury”. Mr Berger obtained the following history from the plaintiff:
“… described problems with intermittent shooting pain in his fingers with pain radiating up the forearm and hand cramping. He noted pain radiating to his shoulder and reported functional problems due to a severe contracture of the small finger.”
110 On examination, Mr Berger noted a 70-degree flexion contracture at the proximal interphalangeal joint and bow stringing of the flexor tendon of the right small finger. An ultrasound confirmed the diagnosis of bow stringing of the flexor tendon secondary to ruptures of the A2, A3 and A4 flexor pulleys. Mr Berger advised the plaintiff to undergo surgery, which was performed on 10 April 2014. The surgery consisted of a flexor tenolysis and release of the flexion contracture at the proximal interphalangeal joint, followed by a pulley reconstruction. He reviewed the plaintiff on 10 June 2014, noting continued stiffness and tenderness, but also noted that his therapy was progressing and his range of motion was improving.
111 The plaintiff last saw Mr Berger on 10 July 2014. He advised the plaintiff to return to physiotherapy, and also to Dr Blombery, vascular physician, for pain management. Mr Berger considered that the plaintiff’s presentation was complicated by the onset of chronic pain. He considered that the plaintiff could return to work, but required pain management.[58]
[58]Exhibit B, CB 75-76
112 The plaintiff was subsequently treated by Mr Carruthers, physiotherapist, from 12 September 2016. It would appear that Mr Carruthers concentrated on the plaintiff’s right shoulder. The plaintiff complained to him of daily ongoing pain and stiffness in his right shoulder. He did not record any complaints of symptoms affecting the plaintiff’s right little finger or hand, or pain radiating into his arm. He noted that the plaintiff was being treated by Mr Eden Raleigh, orthopaedic surgeon. He referred to the plaintiff having injection therapy, which suggests that the plaintiff had an injection into his right shoulder. He also suggested that the plaintiff should have an assessment with a view to whether surgical intervention would assist him. He considered that the plaintiff had no capacity for his pre-injury employment.[59]
[59]Exhibit E, CB 77-78
113 The plaintiff referred to treatment provided by Mr Raleigh in the form of “injections”. He did not mention any treatment provided by Dr Blombery. The plaintiff did not obtain any reports from either of them which resulted in the defendant submitting that I should draw an adverse inference from the failure to call that evidence. I will return to that submission later.
114 The balance of the reports are medico-legal reports obtained by the defendant. The plaintiff tendered the following reports.
115 Mr Anstee, plastic and reconstructive surgeon, examined the plaintiff on 24 October 2013. He obtained a history of the incident of 21 May 2013 and an injury to the plaintiff’s right little finger. On examination, he found a fixed flexion deformity of the proximal and distal interphalangeal joints of the right little finger. He considered that the plaintiff had suffered a crushing injury to his right little finger, leaving him with a significant fixed flexion deformity.[60]
[60]Exhibit E, CB 88-93
116 Mr Anstee re-examined the plaintiff on 7 February 2017. He obtained a history from the plaintiff that his right little finger was no better despite the surgery performed by Mr Berger. On this occasion he complained of severe stabbing pain in his right shoulder which he said began in late 2013. Mr Anstee considered that the plaintiff had a significant impairment of his right little finger comprising a reduced range of motion and in the three joints of the right little finger. He considered that the plaintiff had significant shoulder pathology comprising a SLAP tear in the right shoulder or a superior labral tear from anterior to posterior; adhesive capsulitis; partial tear in the right supraspinatus tendon; partial tear in the right infraspinatus tendon and supraspinatus tendinopathy.
117 Mr Anstee was unable to offer an opinion on causation relevant to the complaint of right shoulder problems. He was aware of earlier radiological investigations of the right shoulder which seem to have influenced him into thinking that there was some causal relationship between the incident of 21 May 2013 and the production of the right shoulder injury. It is noteworthy that Mr Anstee did not obtain a history of the incident of 19 July 2013.[61]
[61]Exhibit E, CB 98-101
118 Mr Stapleton, plastic and hand surgeon, examined the plaintiff on 20 August 2014. He obtained a history of the incident of 21 May 2013 and an injury to the plaintiff’s right little finger. The plaintiff told him that the pain in his right little finger was so bad that he was considering amputation of it. He also recorded that the plaintiff was experiencing pain in his wrist. He considered that the plaintiff had suffered a ligamentous disruption in his right little finger involving the proximal interphalangeal joint.[62]
[62]Exhibit E, CB 103-105
119 Mr Marshall, surgeon, examined the plaintiff on 22 October 2014. He obtained a history of the incident of 21 May 2013 and an injury to the plaintiff’s right little finger. On examination, he found that the plaintiff’s right little finger was swollen and that there was restriction of both flexion and extension of the proximal and distal interphalangeal joints. He was unable to completely flex the finger. He considered that the plaintiff had suffered a soft tissue injury to his right little finger which had not yet resolved. He did not think the plaintiff had a capacity to return to work. Ultimately, he considered that the plaintiff’s injury would resolve very slowly, but would prevent him from returning to his pre-injury work.[63]
[63]CB 122-126
120 Dr Lefkovits, physician, examined the plaintiff on 27 July 2015. He obtained a history of the incident of 21 May 2013 and an injury to the plaintiff’s right little finger, and bruising to the plaintiff’s right shoulder and arm. Furthermore, that the pain encompassed the whole of the plaintiff’s right arm, that his right little finger was swollen and painful, and by September 2013, he was unable to continue working. On examination, Dr Lefkovits found that the plaintiff’s right little finger was swollen with a reddish and bluish tinge toward the distal phalanx; hyperaesthesia and allodynia, and unpleasant paraesthesia to light touch. Dr Lefkovits considered that the plaintiff had suffered a flexion deformity with Regional Pain Syndrome affecting his right little finger and significant psychological issues.[64]
[64]Exhibit E, CB 136-138
121 Associate Professor Buzzard, general surgeon, examined the plaintiff on 2 March 2016. He obtained a history of the incident of 21 May 2013 from which the plaintiff suffered injuries to his right little finger, soreness in his right shoulder and pain from his right shoulder down his arm. On examination, he noted some limitation of movement on the joints of the right little finger, a claim of diminished sensation on the dorsal aspect from the region of the proximal interphalangeal joint downwards, and some sensory deficit. He considered that the plaintiff had suffered soft tissue injury to his right shoulder and wrist from which he had made a complete recovery and otherwise suffered an injury to his right little finger which he assessed pursuant to the relevant AMA guides.[65]
[65]Exhibit E, CB 153-157
122 Professor Buzzard re-examined the plaintiff on 22 March 2016. The history and examination do not appear to be very different from what he recorded previously, nor his opinion. Again, he made an assessment pursuant to the relevant AMA guides.[66]
[66]Exhibit E, CB 161-165
123 Mr Jones, orthopaedic surgeon, examined the plaintiff on 30 January 2017. He obtained a history of both incidents, although, he described the incident of 19 July 2013 as having occurred a month after the incident of 21 May 2013. In relation to the injury he suffered in the incident of 21 May 2013, the plaintiff told him of the injury to his right little finger, and made no specific complaint about his right shoulder. In relation to the injury he suffered in the incident of 19 July 2013, the plaintiff told him that he did not sustain any direct injury to his right hand or right little finger. Approximately days or weeks later, he noticed pain in his right shoulder, and he referred to the right little finger remaining sore as it had been since the incident of 21 May 2013.
124 On examination of the plaintiff’s right little finger, Mr Jones found that the plaintiff was able to perform a grip only partially with his fourth and fifth fingers, with a minor range of movement of the terminal interphalangeal joint of the right little finger. On examination of the plaintiff’s right shoulder, he found significant wasting of the right deltoid muscle and some limitation of movement.
125 Mr Jones considered that the plaintiff had been left with some permanent stiffness and pain in his right little finger, and also had elements of a Chronic Pain Syndrome which he considered involved his right hand, right little finger and right shoulder. In relation to his right shoulder, he considered that the symptoms and signs he elicited on examination were disproportionate pain, with restriction of movement consistent with a diagnosis of adhesive capsulitis and a background of rotator cuff degenerative disease; however, he considered that the pain and stiffness in the plaintiff’s right shoulder compromised the usefulness of his dominant right arm.[67]
[67]Exhibit E, CB 167-175
126 Mr Jones re-examined the plaintiff on 2 August 2018. The history, examination and conclusions he reached led him to conclude that there had been no significant changes in the plaintiff’s condition since he last time he examined the plaintff.[68]
[68]Exhibit 176-180
Which injuries, and which incident
127 I will return to the plaintiff’s evidence before analysing what is disclosed by the medical evidence.
128 In the plaintiff’s serious injury affidavit he said that the incident of 21 May 2013 resulted in him suffering injury to his right little finger and his right shoulder. He then referred to the second incident being the incident of 19 July 2013. He referred to that as having occurred a month later, but I think that wrong estimate of time is not very relevant. He said that the incident resulted in him suffering impact to his right shoulder and arm. The balance of the affidavit leaves me with a strong impression that the plaintiff’s concentration was on the incident of 21 May 2013 which was the real cause of the injuries to his right little finger and right shoulder.
129 In the plaintiff’s more recent witness statement, he said that his right hand, arm and shoulder were compressed against the wall of the trailer at the time of the occurrence of the incident of 21 May 2013. He experienced a crushing sensation with aching and tingling in his right arm, a dull ache and discomfort in his right shoulder and pulling and weakening of his right little finger at the time of the occurrence of the incident of 19 July 2013.
130 Under cross-examination, the plaintiff gave a number of answers to questions directed to which injuries were caused by which incident. Essentially, he put his case on the basis that he suffered a level of injury to his right little finger and shoulder in the incident of 21 May 2013, but the major injury he suffered was caused by the incident of 19 July 2013. For example, in a relevant passage from the cross-examination, the plaintiff said:
Q:“And that when you do that you are inconsistent-and I will come to the actual details, but you are inconsistent about whether it happened two months ago or a few months ago because you are really not sure?---
A:Well, I’m still not sure to this day. But all I know is that the major incident pain wise and the whole-it was a lot more severe in July.
Q:When you say you are not sure to this day, what do you mean by that?---
A:I can’t be 100 percent sure. I’m 99 percent sure the July incident caused the majority of my injuries. But I personally don’t even know myself whether it was mildly contributed to from the May injury. That’s why I called Dr Anstee in because hopefully he can clear all this up for us.
Q.When did you decide-when did you come to the realisation that the July incident was the one that was more significant?---
A:After I finished work.
Q:How much long after?---
A:Talking to-actually early last year:
Q:Last year?---
A:Yes.
Q:And it’s only last year that you have, looking back over the four years that-the four or five years since you have stopped work that you have come to the realisation that it was the July incident; is that right?---
A:Yes, pretty much.
Q:What made you come to that realisation?---
A:Because I figured if it was the May incident, as originally thought, the pain should have been or would have been a lot more severe during the May/June, but it wasn’t.”[69]
[69]T62-63
131 The plaintiff went on to say that his realisation came about after speaking to Dr Dredge, general practitioner. The plaintiff did not obtain a report from Dr Dredge. The clinical notes of Dr Dredge were tendered into evidence.[70] According to those records, the plaintiff first saw Dr Dredge on 15 March 2018. There is nothing in any of the attendances between that date and the last attendance on 17 June 2019 that suggest that the plaintiff and Dr Dredge analysed the injuries complained of by the plaintiff and which of them resulted from the incident of 21 May 2013 and/or 19 July 2013.
[70]Exhibit 7
132 There are a number of almost insurmountable difficulties facing the plaintiff in identifying the injuries that he suffered in the incidents.
133 The first is whether the plaintiff suffered a pre-existing injury. I have analysed the evidence of the plaintiff and Mrs Miles and have concluded that the plaintiff did complain of soreness in his right little finger and that Mrs Miles observed it to be crooked and bent. To be crooked and bent must mean that it suffered some deformity at some time, but Mrs Miles did not describe the extent of it.
134 The plaintiff certainly had some deformity in his right little finger confirmed by the report of the radiologist who took the X-ray of the plaintiff’s right little finger on 6 September 2013 noting pain and swelling with deformity.
135 The question is whether whatever injury he suffered in the incident of 21 May 2013 was to an already damaged right little finger. The evidence points to that being the case; however, as I have already stated above, the plaintiff worked unhindered. The only conclusion I can reach is that he did have some problem with his right little finger, but it was relatively insignificant because it did not interfere with his capacity to perform the tasks involved in his employment with the defendant.
136 The next and most difficult issue is the plaintiff’s evidence that what injury he suffered on 21 May 2013 was relatively insignificant when compared with what injury he suffered on 19 July 2013. His evidence is that the injury he suffered on 21 May 2013 was insignificant; however, he gave a history to Mr Anstee, Mr Stapleton, Mr Marshall, Dr Lefkovits, Professor Buzzard and, to a lesser extent, Mr Jones, that he suffered a more significant injury on 21 May 2013 to his right little finger, and to some degree to his right shoulder.
137 Indeed, the medical evidence is almost the reverse picture of the plaintiff’s evidence. The medical evidence appears to me to demonstrate that he emphasised that what occurred on 21 May 2013 was the cause of significant injuries because he did not say much about what occurred on 19 July 2013 except when he saw Mr Jones in 2017 and 2018.
138 I am left to look for a medical practitioner who obtained a history consistent with the plaintiff’s evidence of both incidents, and a history of the injuries which the plaintiff suffered in each of the incidents. The only medical practitioner who appears to have come close to that is Mr Jones.
139 The conclusions that I have reached on the analysis of the medical evidence are, firstly, that the plaintiff had some measure of pre-existing problem with his right little finger.
140 Secondly, that the plaintiff’s repeated emphasis that he suffered the injury to his right little finger, and to some extent his right shoulder, in the incident of 21 May 2013 when examined by a very large number of medical practitioners, leads me to conclude that he suffered the level of injury described to those medical practitioners as a result of that incident.
141 Thirdly, despite the plaintiff’s evidence that he now places the greater emphasis on the incident of 19 July 2013 as being responsible for the injuries to his right little finger, right shoulder and arm, I do not accept that. I think it is tolerably clear that the plaintiff suffered an injury to his right shoulder in the incident of 21 May 2013 because he repeatedly said as much when examined by almost all of the medical practitioners who I have referred to.
142 Fourthly, the radiological investigations point to pathological changes in the plaintiff’s right shoulder. I think the better assessment of the plaintiff’s right shoulder was made by Mr Jones. On the last occasion he saw the plaintiff he considered that the loss of range of motion and the adhesive capsulitis which he detected when he first examined the plaintiff, had resolved. He noted what he describes as functional symptoms which I take to mean that there was a non-organic element to the plaintiff’s presentation.
Failure to call witnesses
143 The defendant submitted that I should draw an adverse inference against the plaintiff because of his failure to adduce evidence from Dr Blombery and Mr Raleigh.
144 Each could have given relevant evidence on each of the issues which are relevant here. Namely, diagnosis of the plaintiff’s injuries; which injury was caused by which incident; if the injuries result from both incidents, then some opinion as to apportionment, and the plaintiff’s need for treatment, and an overall prognosis.
145 The plaintiff’s failure to call those witnesses is explained. I cannot speculate as to what those witnesses might have said had they been called, but I can infer that their evidence would not have helped the plaintiff’s case. It allows me to more readily accept the evidence which has been adduced, and in this particular case, and for reasons which I will set out below, the evidence of Mr Jones.
Damages
146 The plaintiff described the pain and suffering and loss of enjoyment of life consequences he has suffered as a result of the injuries, but of course without attributing them to a particular incident and the particular injuries resulting from that particular incident.
147 Those consequences are set out in the plaintiff’s more recent witness statement.[71] The defendant tested the plaintiff’s evidence in that respect under cross-examination.
[71]SCB 7-12
148 The plaintiff said that he is able to live independently. He is able to do his own shopping, cleaning, personal care, and meal preparation. He has not been able to return to playing golf. He has applied for work in the security field, but has been unsuccessful. He believed that he could work as security officer doing gatehouse type duties, and security work which was not repetitive or would put his right arm in jeopardy. He has used Panadeine Forte and Lyrica for pain relief. He continues to suffer from Depression which is treated by Dr Dredge. He has not seen a psychiatrist or psychologist for at least one year. He admitted that he is getting better.[72] The evidence given by the plaintiff under cross-examination is in contrast to the degree of pain and suffering and loss of enjoyment of life which he referred to in his more recent witness statement.
[72]T160-162 and T166-173
149 In addition, I accept the plaintiff’s evidence that his capacity to exercise, play golf and engage in a range of activities using his right hand and are now lost to him. I accept that the injury to his right shoulder interferes with his sleep, and his capacity to undertake tasks which require the unrestricted use of his right hand and shoulder.
150 The difficult question is what of those pain and suffering and loss of enjoyment of life consequences are attributable to the injuries the plaintiff suffered in the incident of 19 July 2013. I think it is probable that the plaintiff suffered a more significant injury to his right shoulder in that incident. I think it is less probable that he suffered any further injury to his right little finger than was already the case before that incident occurred.
151 It appears to me that the pain, restriction of movement, contribution to his inability to exercise, play golf and engage in a range of activities of a physical kind by his right shoulder, and interference with sleep and the need for medication are more than negligible, but as I have repeatedly said, difficult to assess.
152 In the circumstances, I assess those consequences attributable to the injuries he suffered in the incident of 19 July 2013 warrant an assessment of damages, but to be conservatively assessed because of the relative uncertainties in what I am dealing with. I think the sum of $25,000 is full, fair and reasonable compensation in these circumstances.
Conclusion
153 I will hear the parties on the question of what orders should flow from the conclusions are reached.
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