Wakefield v Australian Facade Manufacturers
[2019] VCC 1852
•15 November 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-01612
| DAMON JAMES WAKEFIELD | Plaintiff |
| v | |
| AUSTRALIAN FACADE MANUFACTURERS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 10 October 2019 | |
DATE OF JUDGMENT: | 15 November 2019 | |
CASE MAY BE CITED AS: | Wakefield v Australian Facade Manufacturers | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1852 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 – s325 and s335 – application in respect of pain and suffering and loss of earning capacity – plaintiff under the age of 26 years at the relevant time – reliance upon paragraph (a) of the definition – injury to the dominant right lower arm – plaintiff suffering from long-standing mental health problems, including Asperger Syndrome – behavioural problems – plaintiff in casual employment effectively organised by his father at time of suffering physical injury – whether burden of proof satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr M Garnham | Slater and Gordon |
| For the Defendant | Ms F Ryan | IDP Lawyers |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (hereinafter referred to as “the Act”). The plaintiff seeks leave to bring proceedings for damages in respect of both pain and suffering and loss of earning capacity. In so doing, he relies on paragraph (a) of the definition of “serious injury” contained in s325 of the Act. The injury relied upon is one to the right wrist and upper limb generally and shall hereinafter be referred to as “the injury”. The injury originally occurred on 18 April 2016, when the plaintiff was performing, essentially, labouring work in the course of his employment with the defendant. After a brief absence from work, he returned and sustained another injury to the same area of the wrist on 23 May 2016. Whilst these obviously were separate incidents, they are related (and have been dealt with collectively for the purposes of statutory benefits and the like) and shall hereinafter be referred to as “the accident”. There is no dispute concerning the occurrence of the incidents which constitute the accident and, for the purposes of statutory benefits, liability was accepted by the defendant in respect of each of them. I would refer to Transcript (hereinafter referred to as “T”) 5. There is also no argument but that the plaintiff is right-hand dominant – see, for example, T7.
2 As shall be discussed, the plaintiff has a lengthy history of mental health problems. This has led to his having only comparatively brief periods of employment prior to the occurrence of the accident. Such problems and their sequelae continue to have a major effect upon his life and his employability.
3 Further, there is no argument but that, as at the time of the occurrence of the accident, the plaintiff was under the age of 26 years. Accordingly, s325(2)(e)(i) is applicable and what could be described as a “common law” approach to whether there is a financial loss of 40 per cent or more – as required by s325(2)(e)(ii) – is to be adopted. Section 325(2)(f) is not applicable. This was submitted by Ms Ryan on behalf of the defendant (see T65), not challenged by her opponent, and seems to me to be a correct statement of the position.
4 The alleged injury the subject of this application occurred initially on 18 April 2016, when one of a pair of beams being carried by the plaintiff slipped and lacerated his right wrist. He was off work for approximately a fortnight. The second incident occurred on 23 May 2016, when the plaintiff was lifting and moving a piece of cladding. The plaintiff was absent from his employment until approximately early August 2016. His employment was terminated on 25 August 2016 for reasons unrelated to the wrist injury. Whilst it is not entirely clear as to the basis upon which the plaintiff was employed, at least after the accident it was on a casual basis.
5 Mr C Harrison QC, with Mr M Garnham of counsel, appeared on behalf of the plaintiff. Ms F Ryan of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of two affidavits as being true and correct, save for a couple of corrections which are set out at T6-7. The remainder of the evidence was documentary in nature and was tendered either by consent or without objection. In addition, the plaintiff demonstrated the range of movements of his right and left hands and lower arms. I was able to inspect this at close range and also to examine the location and size of any scarring (although it is to be remembered that there is no reliance upon paragraph (b) of the definition in this case).
Factual background
(a)the plaintiff’s background, education, training and employment prior to the accident
6 The plaintiff is aged 23 years, he having been born in 1995. He left school during Year 9 and I gained the impression that his mental health problems played some role in relation to his limited education. For example, the plaintiff gave evidence that he had never had a full night’s sleep since childhood because of his psychiatric condition – see T19. In addition, the plaintiff gave evidence that, because of his psychiatric condition, he was placed on a Disability Support Pension when he was 16 years of age and remains upon it. It would seem that he “never came off it”, even when working, as a result of some type of credit scheme operating through Centrelink – see T9.
7 In relation to the actual pre-injury employment in which the plaintiff did engage, it would seem that, after leaving school, he worked for a few months as a carpet layer. He worked at a pallet factory, making pallets and carrying out cleaning work, for approximately two months. This would appear to have been with an entity called Waterstone Holdings, an employment from which he was fired because of an “argument with the boss” – see T42. On 4 February 2016, he commenced working as a labourer with the defendant. This was apparently organised through his father, an employee of the defendant. As I understand it, the plaintiff may have been employed as a “casual”, but was working on a full-time basis. He was certainly a casual employee when he was dismissed on 26 August 2016. The defendant manufactures and supplies steel-framed wall cladding for buildings. As stated, the plaintiff originally injured his right wrist on 18 April 2016, when moving steel beams.
(b) The plaintiff as a witness
8 The plaintiff tended to answer questions in a manner which was somewhat precise and, reasonably strictly, within the literal boundaries. It may be that this is in some way caused by or indicative of Asperger Syndrome, but, in any event, he tended to answer in a precise and literal way.
9 That is no criticism of the plaintiff’s honesty or reliability as a witness. In fact, I found him to be a completely honest and straightforward witness, who made numerous concessions against interest. Indeed, in relation to at least part of his evidence concerning difficulties in holding down employment, Ms Ryan, on behalf of the defendant, referred to the plaintiff as being “very frank” – see T66. I would agree with that proposition, but would extend it to all of the evidence given by the plaintiff.
(c) The state of the plaintiff’s health prior to the accident
10 The issue of the state of the plaintiff’s health prior to the accident is quite complex. The plaintiff is a long-time sufferer from Asperger Syndrome. As I understand it, for lengthy periods, he was on antidepressant and antipsychotic medication. Originally, he was keen on engaging in sporting activities such as basketball and football. The notes from various general practitioners put in evidence disclose problems with the right hand and right hip, left shoulder, neck and the like, several of these being related to sporting activities. There are references to seizures and “funny turns”. There are references to drug use, mental health problems, Schizophrenia, hallucinations, anger problems and the like. Whilst reference to these matters appears in comparatively recent notes from the plaintiff’s general treating practitioner, it is quite apparent that such notes have been collated from records in existence prior to the accident.
11 Indeed, it is apparent that the plaintiff was intermittently in receipt of a Disability Support Pension from a date shortly after leaving school. In cross-examination, he readily volunteered that he had been on the Disability Support Pension since the age of 16 years and that continues to be the case. Whilst he had comparatively brief and intermittent employment, it would seem that he had no employment at all for approximately three years prior to commencing work for Waterstone Holdings and then for the defendant – see, for example, T8. The employment with the defendant effectively was casual (it was certainly casual at the time that he was dismissed) and was organised by the plaintiff’s father, who worked there. Without going into it in detail, the plaintiff was also quite frank about the many problems which he has had with illegal drugs and addiction in that regard.
12 Whilst the plaintiff had suffered from various health problems and injuries prior to commencing employment with the defendant, I accept that previously he did not have any problems of significance involving his right lower arm.
(d) The injury, its treatment and diagnosis
13 The initial injury occurred on 18 April 2016, when the plaintiff sustained a laceration to the right wrist when it was struck by a beam. He was taken to the Emergency Department of the Dandenong Hospital. The wound was cleaned and surgery was performed by the Plastic Surgery Unit of that hospital. It is apparent that stitches were inserted. It would appear that there was an exploration of the wound and a washout/debridement performed on 23 April 2016. Approximately two weeks after the surgery which had been performed on 23 April, the plaintiff returned to work on light duties.
14 I note from the clinical notes of the Casey Medical Centre that the plaintiff attended in relation to his injured right arm on 4 May 2016. I also note that he had attended some two days previously in relation to issues of paranoid delusions and auditory hallucinations. In any event, on 4 May 2016, he recounted to Dr Xue Ling Tan that he had suffered the accident on 18 April; that surgery had been performed on 23 April; that he was having difficulty holding things because of weakness; and that there had been a lot of swelling and pain in the arm, radiating to the elbow. Dr Tan noted that the wound was held together by four stitches and looked well apposed. There was mention of referral to a hand therapist.
15 On 23 May 2016, the plaintiff again attended at the Casey Medical Centre in relation to his lower right arm injury and saw Dr Sugunendera Thevasagayam, who appears to have become the plaintiff’s usual treating general practitioner. The plaintiff told Dr Thevasagayam that he had sustained injury at work on that day, when he was lifting a panel with a workmate and, when rotating, felt a sudden sensation in the right wrist. There was now a lump in that area. Dr Thevasagayam recorded that there was a tender, soft, mobile lump in the distal right wrist and restricted wrist movements due to pain. Dr Thevasagayam advised the use of a back slab (which was in fact placed in position) and referred the plaintiff to a plastic surgeon. That surgeon was Associate Professor James Leong.
16 Prior to seeing Associate Professor Leong, the plaintiff underwent an ultrasound of the right wrist, which was performed on 26 May 2016. The finding of the radiologist was that the palpable lump on the plaintiff’s right wrist corresponded to a complete tear of the flexor carpi radialis tendon, within the distal forearm, separated by approximately 20 millimetres.
17 Upon seeing the plaintiff, Associate Professor Leong took an appropriate history. He also noted that the ultrasound confirmed that there had been a complete rupture of the FCR tendon.
18 Associate Professor Leong performed an operation on 2 June 2016 in order to explore the right volar forearm under a general anaesthetic. The operative findings were of a complete rupture of the FCR tendon, with a gap at the distal forearm wrist level. A tenolysis was performed to free up the ends of the FCR tendon and the median nerve was protected and neurolysed. The FCR tendon was repaired. The plaintiff was placed into a protective splint for the next six weeks. The plaintiff then attended regular hand therapy and made good progress, ultimately allowing him to return to work.
19 The plaintiff returned to see Associate Professor Leong in July 2017. Some lumpiness had developed just below the scar on the right forearm. Associate Professor Leong was of the opinion that the plaintiff had developed some troublesome suture granuloma at the tendon repair site and felt that the plaintiff would benefit from further surgery. This was ultimately carried out by Associate Professor Leong, and, whilst it is not entirely clear, it would appear that this occurred in October 2017. The plaintiff has sworn that, whilst it helped to decrease sensitivity, the surgery did not help with wrist movement. Certainly there is no suggestion that this surgery had an adverse effect upon the plaintiff’s condition or his employability. Indeed, it may have had some beneficial effect in relation to the decreasing of sensitivity.
20 This would appear to be confirmed in the report of Dr Thevasagayam of 12 August 2019. In it, he stated that the plaintiff had reached the treatment limit with hand therapy. There had not been much further improvement for many months. Dr Thevasagayam considered the prognosis to be poor for any improvement in relation to the plaintiff’s wrist and hand. Dr Thevasagayam went on to say that the plaintiff had an ongoing restricted range of movement in the right wrist and pain with certain movements and lifting. In relation to pushing, pulling and lifting, and in relation to repetitive movements of this kind, the plaintiff was restricted to no use of the right hand and this would continue for the foreseeable future. He made the same observation concerning repetitive and/or prolonged use of the right hand and wrist and in relation to finer manipulative use.
21 The plaintiff has also been seen for medico-legal purposes. Mr Murray Stapleton, plastic and hand surgeon, saw the plaintiff at the request of his solicitors on 14 March 2019, reporting on that date. Mr Stapleton noted that the scarring across the flexor surface of the wrist was tender and that the plaintiff had a significantly reduced range of movement of the right wrist. Mr Stapleton also observed that lifting, pushing, pulling and repetitive actions were all beyond the plaintiff’s capacity, although it is not entirely clear as to whether that was an observation of the plaintiff or the opinion of Mr Stapleton. In any event, Mr Stapleton stated that the plaintiff’s condition had reached maximum medical improvement.
22 The diagnosis of Mr Stapleton was that the plaintiff had suffered a laceration across the flexor surface of the right wrist. He again expressed the opinion that the prognosis in relation to the plaintiff’s dominant right hand was that his injuries had reached maximum medical improvement and no surgical intervention was likely to produce any further improvement. Mr Stapleton was also of the view that the plaintiff was not capable of performing pre-injury duties, and that light duties would be a problem for him. Given that it is the plaintiff’s dominant hand that is involved, his social, recreational and domestic activities were all affected. Mr Stapleton did not believe that there was any benefit to be gained by further medical or surgical treatment for the plaintiff’s hand problem.
23 Dr Joseph Slesenger, specialist occupational physician, also saw the plaintiff at the request of his solicitors, reporting on 11 July 2019. Dr Slesenger was aware of the fact that the plaintiff suffered from Asperger Syndrome and a Schizoid Personality Disorder. Dr Slesenger inspected the plaintiff’s right forearm and wrist, noting a 6 centimetre curvilinear scar. He also noted severe sensitivity to moderate palpation over the flexor and distal radial aspect of the wrist. Effectively, Dr Slesenger diagnosed right hand dysfunction following a soft-tissue injury and ligament tear, for which the plaintiff had undergone operative intervention. He considered the prognosis to be guarded, given the length of the plaintiff’s impairment and disability. He was of the view that the plaintiff was likely to have residual restrictions in terms of his employment capacity. The plaintiff should avoid firm gripping on the right side; pushing, pulling and carrying or lifting over 3 kilograms of weight; repetitive wrist tasks; and firm torque movements. Dr Slesenger considered these restrictions to be permanent.
24 Dr Slesenger was also of the view that the plaintiff could not return to pre-injury duties. Bearing in mind the plaintiff’s current symptoms and functional limitations, in addition to his past employment history, literacy limitations, lack of computer skills and right-hand dominance, Dr Slesenger did not anticipate his returning to work in a role for which he had suitable training and experience on a consistent and reliable basis. Somewhat surprisingly, he also seems to have considered that the plaintiff’s age of 23 posed a problem in relation to his obtaining of alternative duties. In any event, this would be the situation for the foreseeable future. In addition, Dr Slesenger did not anticipate that the plaintiff could return to his pre-injury sporting activities in the foreseeable future.
25 The defendant has also had the plaintiff examined. Dr Majid Rahgozar, consultant occupational physician, saw the plaintiff on 20 July 2016. This was very shortly after the original surgery performed by Associate Professor Leong. In addition, it would not appear that Dr Rahgozar had available to him any material from those treating the plaintiff. Perhaps this is not surprising, given the timing of events. This also puts some limitation upon the usefulness of the report of Dr Rahgozar. Effectively, he diagnosed a partial rupture of one of the right wrist flexors. In the second injury, there was likely to have been a thin rupture of the tendon that required reconstruction plastic surgery. He thought that the plaintiff was likely to recover fully, although noting some restriction in the range of motion, which he considered to be likely to improve with therapy. He considered the injury to be a new one. Dr Rahgozar thought that the plaintiff could not return to pre-injury duties, but did have the capacity for gradually increasing hours.
26 Mr John Anstee, who specialises in plastic and reconstructive surgery, saw the plaintiff for the defendant on 22 November 2016. He noted that the plaintiff had not worked since 25 August 2016, referring to him as having been “sacked”. The plaintiff complained of weakness in the forearm and hand when in cold weather or a cold environment. He also complained of pain extending from the forearm to the centre of the palm. Mr Anstee noted that the plaintiff was on significant medication in respect of his psychological problems, referring to Schizophrenia and Bipolar illness. Mr Anstee described the plaintiff as being cooperative, but referred to his having a very slightly reduced range of movement in the left hand and wrist. However, he commented that the plaintiff’s response to tests of grip power did not represent a genuine maximum effort on his part in relation to the right hand and arm.
27 It is of interest that Mr Anstee does not seem to have been provided with any information concerning the surgery performed by Associate Professor Leong, although the operation performed by him on 2 June 2016 pre-dated the examination by Mr Anstee on 22 November 2016. Indeed, when commenting upon the plaintiff’s condition, Mr Anstee commented that there had been no tendon involvement. It is not clear whether Mr Anstee was even aware of the second incident of injury on 23 May 2016. Accordingly, the observations made by Mr Anstee in this report are of limited utility.
28 Mr Anstee reported for the second time on 11 October 2017. On this occasion, he does seem to have been aware of the plaintiff experiencing something snapping in his forearm after his return to work. He also seems to have been aware that there had been surgery performed by Associate Professor Leong, but there is no indication that he had been provided with any particular details concerning it. Again, Mr Anstee does not seem to have been supplied with a great deal of information. He did see an ultrasound of 21 August 2017. The plaintiff was complaining of extensive pain involving the hand and forearm, and the range of movement of his hand and wrist was much restricted. He also complained that most right-handed tasks had been made more difficult or impossible by virtue of the injury and pain. At least part of the reason for this report seems to have been to obtain the opinion of Mr Anstee concerning the possibility of further surgery to remove a suture granuloma. Mr Anstee thought it important for the plaintiff to get his hand moving as quickly as possible.
29 On this occasion, Mr Anstee described the plaintiff as seeming to have a significant problem in the right wrist. He recommended a graduated return to work via alternative duties for reduced hours. Mr Anstee pointed out that it was the plaintiff’s dominant right hand that was affected and this made future employment somewhat more difficult. However, he recommended a return to alternative duties, progressing slowly to pre‑injury duties. In this report, Mr Anstee referred to the subsequent tendon repair which resulted in a number of problems, including pain and stiffness in the right hand and wrist. He also referred to the plaintiff as “working quite hard”, but this does not seem to fit in with the history as we know it.
30 Mr John Buntine, hand, plastic and reconstructive surgeon, saw the plaintiff at the request of the defendant on 18 April 2018. Mr Buntine took a detailed history, including extracts from reports of Associate Professor Leong and Dr Thevasagayam. Mr Buntine had also been provided with the ultrasound report of 26 May 2016. The plaintiff complained of severe pain in the region of the volar scar on the right forearm when he tried to extend the wrist past the neutral position. He made little use of his right hand, although using his right thumb and index finger. Whilst Mr Buntine observed full movement of all digits of the right hand, he noted that there were variable wrist movements, consistent with inhibition of wrist extension by pain caused by considerable tightness of flexor carpi radialis. This was in turn consistent with direct repair of the tendon of the shortened flexor carpi radialis muscle.
31 Mr Buntine also noted that the scar on the right palm and wrist was 7 centimetres long. Whilst the examination was consistent with the maximum possible strength of the right hand grip not being demonstrated, the plaintiff readily agreed that pain was limiting the strength of his grip. Interestingly, Mr Buntine expressed the opinion that the ultimate result of surgery could have been more satisfactory if the plaintiff had been able to cope with the considerable pain of slowly pulling the contracted muscle out to its normal length. However, consistent with his Asperger Syndrome and his early schizophrenia illness, the plaintiff was unable to achieve wrist extension and had continued to react negatively to the associated pain.
32 Mr Buntine further stated that the plaintiff could not extend his right wrist beyond the neutral position because of painful tightness of the flexor carpi radialis muscle and tendon and this was proving difficult to deal with by the use of the usual intensive hand therapy. He also noted that the flexor carpi radialis muscle and tendon was exceedingly tight and stretching it by active or passive extension of the wrist was painful. The limitations caused have been accentuated by reason of the plaintiff’s psychiatric condition.
33 Mr Buntine was of the view that the prognosis for good recovery of the right wrist and hand appeared to be poor. He described the clinical presentation as consistent with the unfortunate sequence of events relating to the failure to recognise that the tendon had been mostly divided. The situation had been exacerbated and aggravated by the plaintiff’s pre‑existing psychological and psychiatric problems. The plaintiff was unable to cope with the moderately severe pain that would be involved in performing repeated active or passive extension, assisted by periodic splinting of the wrist. He noted that, unfortunately, the plaintiff was unable to cope with the moderately severe pain involved in such manoeuvres.
34 Mr Buntine also stated that it should be appreciated that the plaintiff is not just voluntarily not cooperating with his rehabilitation. He has been unable to cope with the considerable pain because of his pre‑existing psychological or psychiatric condition. Mr Buntine again referred to the considerable pain associated with vigorous post-operative hand therapy, observing that this would apply also in the case of a considerable number of people not suffering from a pre‑existing psychological or psychiatric condition.
35 Mr Buntine provided a further brief report of 8 October 2018 without seeing the plaintiff again. He was asked a question basically in relation to assessment pursuant to the Guides, this question emphasising that the tables in the relevant Chapter are based on the active range of motion, which is determined “with the patient’s full efforts and cooperation”. Mr Buntine expressed the opinion that the plaintiff was cooperating fully with his examination and that he was experiencing significant pain when he extended his right wrist as far as the neutral position, this being because of the contracture of the flexor carpi radialis muscle. His overall conclusion was that it was best for all concerned for it to be accepted that, for the purposes of the assessment of permanent impairment, the plaintiff’s condition had stabilised.
36 The defendant organised for the plaintiff to be seen on 18 September 2019 by a third hand specialist, this time Mr Damien Ireland. Mr Ireland took a detailed history of the accident, but seems to have been under the misapprehension that the plaintiff had developed considerable psychiatric symptoms since the injury. Unlike Mr Buntine, he seems to have expressed his opinion on the basis that the plaintiff’s psychiatric problems arose from or commenced after the accident.
37 It is also apparent that the plaintiff and Mr Ireland did not get along particularly well, to put it mildly. Mr Ireland referred to the plaintiff as becoming “quite aggressive” in the course of the interview. Indeed, he described him as being extremely difficult to examine. He also stated that it was extremely difficult to obtain a history from the plaintiff. Mr Ireland described the plaintiff as seeming to be agitated, aggressive and uncooperative. Mr Ireland diagnosed dysfunction of the right wrist following a soft tissue injury which had been treated surgically, also referring to major psychiatric issues.
38 Mr Ireland concluded that the plaintiff did not require any further treatment for the physical injury, from which he had fully recovered. The prognosis was good and he would be able to return to his pre‑injury job description. However, his psychiatric condition made him currently unemployable. Mr Ireland stated that the plaintiff appeared to have fully recovered “from a minor soft tissue injury”. He referred to gross disparity between the severity of the subjective symptoms and the presence of matching objective physical findings. He concluded by describing the plaintiff’s physical impairment as being minor, believing it would fully resolve with the passage of time.
39 I would point out that, in his report of 18 September 2019, Mr Ireland has listed the enclosures which had been sent to him to assist with the preparation of his report. These included the plaintiff’s affidavit of 6 December 2018. That affidavit clearly states that the plaintiff suffers from Asperger Syndrome and had been on antidepressant and psychotic medication for many years. It also refers to the fact that he had been on a Disability Support Pension. Further, it contains the statement that the plaintiff has suffered from psychological issues for a number of years, attending both Dr Ian Katz, psychiatrist, and Dr Geoffrey Hogan, psychiatrist.
40 A detailed report from Dr Katz, this being dated 1 May 2014 and addressed to Dr Smith of the Casey Medical Centre, had also been forwarded to Mr Ireland. Without going through this lengthy report in detail, it is clear that, in 2014, Dr Katz was discussing a number of previous diagnoses, including attention deficit disorder, schizotypal disorder and Asperger Syndrome. To state the obvious, the report is dated almost two years before the accident and refers to a substantial past history of psychological or psychiatric illnesses.
41 The report from Dr Hogan, dated 4 May 2015, is also lengthy and is addressed to Dr Thevasagayam. It is also recorded by Mr Ireland as being an enclosure forwarded to and read by him. The report includes a history of attention deficit hyperactivity disorder, marked personality disorder, and antisocial, schizoid and paranoid personality traits. It also contains a history of abuse of marijuana. Again, to state the obvious, this predates the accident.
42 Mr Ireland was also sent the reports of Mr Anstee and Mr Buntine, which reports have been referred to above. In particular, the report of Mr Buntine refers to the plaintiff as having been moderately severely affected by Asperger Syndrome, referring to it as a significant past history. I also note that the plaintiff’s father accompanied him when he was examined by Mr Ireland. I appreciate that the plaintiff can be aggressive and apparently was on this occasion, but how Mr Ireland formed the opinion that the plaintiff had “developed considerable psychiatric symptoms since his injury”, whilst effectively making no reference to the plaintiff’s very pronounced pre‑existing condition, is something of a mystery.
43 Turning to my finding as to diagnosis, I reject the opinion of Mr Ireland that the plaintiff suffered a minor soft tissue injury to the right forearm from which he has fully recovered. Of the hand injury experts, I prefer and accept the opinions of Mr Buntine, also examining on behalf of the defendant, and Mr Stapleton. I note that, whilst the opinions of Mr Anstee are a little dated and, at least in relation to his later report, more directed to the issue of proposed treatment for the removal of the granuloma, he does state that the plaintiff would seem to have a significant problem in the right wrist. Mr Anstee was also examining on behalf of the defendant.
44 In short, I accept the diagnoses of Dr Thevasagayam, Associate Professor Leong, Mr Stapleton and Mr Buntine. The plaintiff initially suffered a laceration to the right volar surface of the right forearm. At surgery performed by Associate Professor Leong, he was found to have suffered a complete rupture of the flexor carpi radialis tendon. The tendon was shortened. He had further surgery to remove the suture granuloma. The end result, as described by Mr Buntine, is that the flexor carpi radialis muscle and tendon is exceedingly tight and stretching it by active or passive extension of the wrist is painful.
45 There is nothing to suggest that the injury is an aggravation or exacerbation of a pre‑existing condition. As stated, for example, by Mr Anstee, examining on behalf of the defendant, this was a new injury. There is nothing to suggest that the contrary is the case.
46 I am also of the view that the impairment or loss of a body function suffered by the plaintiff is permanent within the meaning of the Act in that such impairment or loss of body function will persist for the foreseeable future. Mr Buntine, examining on behalf of the defendant, has stated that the prognosis for recovery of good function of the right wrist and hand appears to be poor. He was prepared to make assessments of permanent impairment pursuant to the AMA Guides. In his supplementary report of 8 October 2018, he informed the defendant that waiting for further time to elapse would make no difference to the plaintiff’s condition and mental health problems. He stated that it was best for all concerned for it to be accepted that, for the purposes of assessment of permanent impairment, the present condition has stabilised.
47 In his report of 14 March 2019, Mr Stapleton advised the plaintiff’s solicitors that the injuries to the plaintiff’s dominant right hand had reached maximum medical improvement. No benefit was to be gained by any further medical or surgical treatment for his hand problem. Dr Slesenger stated that the plaintiff’s prognosis was guarded and that his impairment and restrictions should be regarded as being permanent. In his most recent report, the treating general practitioner, Dr Thevasagayam, said that the plaintiff’s condition does appear to be permanent, although stating that the plaintiff would be prone to developing osteoarthritis in the future, also referring to the possibility of a reduction in muscle strength. Bearing in mind the above, I am of the view that the impairment or loss of body function suffered by the plaintiff is permanent within the meaning of the Act. The contrary was not argued to any great extent, if at all.
48 I turn now to the psychological or psychiatric consequences of the injury. As stated, the plaintiff is relying only upon paragraph (a) of the definition. Pursuant to s325(2)(h) of the Act, consequences of a psychological or psychiatric nature are only to be taken into account for the purposes of paragraph (c) of the definition. Accordingly, they shall not be taken into account in my consideration of whether the statutory test has been satisfied.
49 That the situation is complicated by the plaintiff’s pre‑existing and ongoing mental health problems – problems unrelated to his employment or to the injury – virtually goes without saying. I have already discussed those problems at some length. Ms Ryan referred me to the decision of the Court of Appeal in Bezzina v Phi and Transport Accident Commission [2012] VSCA 161 and particularly to paragraph [23] thereof. Cases such as this and State of New South Wales v Moss [2000] NSWCA 133 are of relevance because of the plaintiff being under the age of 26 years at the relevant date. Thus, the exception contained in s325(2)(e)(i) applies in relation to loss of earning capacity. It is submitted that, whilst a 40 per cent loss must be established, given the absence of the type of considerations required by s325(2)(e) and (f), the situation is more akin to that in a common law case involving loss of earning capacity. It is a submission which, in essence, I accept.
50 This approach, as set out in Bezzina, is that, when examining the consequences of the claimed serious injury, the Court should look at how such consequences affected the plaintiff as he was and would likely have been absent the injuries sustained in the relevant accident. This includes looking at and considering the effect of the plaintiff’s pre‑existing injuries and their likely effect in the future. Whilst that is a broad statement and not confined to loss of earning capacity, it is of relevance in the present situation.
51 In Moss, it was emphasised that the compensable loss is not a loss of income, but the loss of capacity to earn income in a manner productive of a financial loss. It was stated that the calculation of a lost income does not depend upon calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. In broad terms, the approach in Bezzina and in Moss will be followed in the present case.
52 However, nothing in those cases appears to derogate from the general proposition that, in a case such as this, the defendant must take the plaintiff as it finds him. If, in a particular hypothetical situation, because of all sorts of pre-accident disabilities, a plaintiff only had the capacity to engage in one particular form of employment and the relevant accident prevented him or her from engaging in that form of employment, total incapacity would be made out. I see no reason why that general proposition should not be applicable in the present case. Further, this is not an egg-shell skull situation where the relevant incident of injury has caused a previous weakness to become manifest or much worse and resulted in incapacity.
53 As earlier stated, Mr Ireland may have formed the impression that the plaintiff’s psychiatric symptoms effectively post-date the accident. Of course, that is not so. In addition, it may be that the accident provoked an aggravation of the plaintiff’s pre‑existing problems. Whilst it is difficult to quantify the extent of such aggravation, it shall not be taken into account. The bottom line is that the accident occurred to a person with very pronounced psychiatric or psychological problems. Whether those problems became more pronounced after the accident is not entirely clear. The conclusion which I have reached is that such problems were very marked prior to the accident and have continued so to be. Any psychological or psychiatric consequences resulting from the accident will not be taken into account.
Other developments since the accident
54 In early August 2016, the plaintiff returned to work on modified duties, with restrictions in relation to the use of his right hand. This return to work lasted only approximately three weeks. He had some difficulties during that time. However, he admits quite frankly that the termination of his employment with the defendant on 25 August 2016 was not related to his injury. In fact, the use of drugs was the immediate cause of his dismissal.
55 Since then, the plaintiff has not engaged in employment and has remained on the Disability Support Pension. He has looked for work, for example in lawn mowing and at a conveyor manufacturing establishment, but without success. For a period, he moved to Moe and attempted lawn mowing, but could not do this because of right wrist pain. He has had admissions as an in-patient to the psychiatric ward of the Dandenong Hospital. Essentially these related to behavioural issues. As he has sworn in his more recent affidavit, he is seeing a psychiatrist twice a week and obtaining counselling once a week. He remains on medication relating to his depression and his psychotic problems. He also has medication for his attention deficit disorder. He has moved to Yarragon. Apparently he has been trying to distance himself from those who have had a bad influence upon him. He still has problems and, for instance, on 15 June 2018, he injured the fourth finger of his right hand when punching a letterbox. I accept that any pain, suffering or incapacity resulting from this was short-term in nature. I note that, when giving evidence, the plaintiff gave his address as being in Cranbourne, where his parents live, and that is apparently the address from which he usually “operates” – see T6.
56 In summary, the plaintiff’s psychological or psychiatric problems continue and, whilst he has made some efforts, he has not returned to the workforce.
Ruling
(a) Loss of earning capacity
57 I am of the view that, in relation to loss of earning capacity, the plaintiff has failed to discharge the burden of proof. Whilst I have borne in mind the well-established proposition that a defendant must take the plaintiff as it finds him or her and whilst I have also taken into account the very detailed and helpful judgment of J Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454, I am of the view that, in the circumstances prevailing in this case, the plaintiff must fail in relation to economic loss.
58 The plaintiff has suffered quite significant psychological or psychiatric problems since early in his life. He was an invalid pensioner by the age of 16 years and has continued so to be. His work history is one of the very occasional job, interspersed by periods of unemployment, at least one of which was quite lengthy. Unfortunately, he has had his difficulties with drugs. It would seem that for three financial years (2013, 2014 and 2015), he had no earnings other than the Disability Support Pension – see T8. He then obtained employment briefly with Waterstone Holdings, which was a pallet maker. He was fired from that employment after an argument with his boss. It was then that, through his father, he obtained employment with the defendant. Importantly, having returned to work following the accident, he was dismissed because of a problem with illicit drugs. Whilst he had returned to work on restricted duties, there is no suggestion that such work would have come to an end but for his problems with drugs.
59 Putting it in a simple form, apparently the plaintiff was employed by the defendant because of the intervention of his father. He then suffered the injury. The defendant kept him in employment on a restricted and casual basis. The plaintiff was very keen to return to full-time hours – see T23. He agreed that he was capable of working such hours. He then failed a drug test and admits, quite frankly and properly, that his termination of employment was unrelated to the injury which he had suffered. Put another way, the interference with and termination of his employment with the defendant was not connected to or resultant from the injury. It is not argued that his post-injury earning capacity in suitable employment, as demonstrated after his return to work, was adversely affected as a consequence of the injury. Suitable employment was found for him and he engaged in it until the drug problem. He demonstrated a capacity to engage in such employment. No figures were put before me which demonstrate that such suitable employment was or would be productive of a financial loss of 40 per cent or more. In addition, I would repeat that there is no suggestion that there was any deterioration in the plaintiff’s condition or work capacity resulting from or following the surgery performed in October 2017 for the removal of the granuloma. As earlier stated, there is no suggestion that this surgery had an adverse effect upon the plaintiff’s employability and it may have had some beneficial effect in relation to the decreasing of sensitivity.
60 Further, and whilst it is a little difficult to fully appreciate the answers without being provided with the relevant questions, Dr Thevasagayam, in his report of 12 August last, would appear to be indicating that the plaintiff has a work capacity if he receives appropriate vocational rehabilitation and training. He would be limited to jobs involving light duties and with limited use of his right hand. He would not be able to return to jobs similar to those involving duties of the kind provided by the defendant before the injury.
61 I can appreciate that the plaintiff may have considerable difficulty in obtaining suitable light work. The problem he faces is that he was in suitable employment, even allowing for the injury to his right wrist and lower arm, before he was dismissed for reasons totally unrelated to his injury.
62 In summary, I am not satisfied that the plaintiff will, after the date of the decision of the hearing, continue permanently to have a loss of earning capacity which will be productive of loss of 40 per cent or more as a consequence of a loss of a body function as described in s325(2)(b), (c) and (e), with particular reference to (e)(ii). Suitable employment was found for the plaintiff. No evidence (or argument) was put before me to indicate that such employment was productive of financial loss of 40 per cent or more.
63 Further, s325(2)(e)(ii) specifically states that a worker, including a worker under the age of 26 years at the date of injury, is required to establish that he or she will continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per cent or more does apply. Whilst the “3 years before and 3 years after the injury” requirement set out in sub-paragraph (f) does not apply, the requirement of establishing continuing permanent loss of earning capacity productive of financial loss of 40 per cent or more does apply. Thus, whilst permanent serious impairment or loss of a body function must be established, the plaintiff in the present case also must satisfy me that he has had a continuing permanent loss of earning capacity which is, and will be, productive of such financial loss. Of course, he must satisfy me that, on the balance of probabilities, such loss is a consequence of the relevant injury.
64 He has failed to satisfy me in relation to these matters. He returned to work and there is no evidence indicating that a financial loss of 40 per cent or more resulted. He coped with that work and, indeed, would have worked longer hours if such were available. As stated many times, the termination of that employment was for reasons of drug use and not because of loss of capacity.
65 In summary, the plaintiff has failed to discharge the burden of proof in relation to loss of earning capacity.
(b) Pain and suffering
66 I am of the opinion that the plaintiff has discharged the burden of proof in relation to pain and suffering. I have come to that conclusion for the following reasons, which are not listed in order of importance or significance.
(a) As was said by Brooking JA in Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439 at [448]:
“Moreover, in ‘serious injury’ applications the credit of the applicant is of great importance.”
This observation has been referred to more recently by the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 and in Haidar v Transport Accident Commission [2016] VSCA 182. As earlier stated, I found the plaintiff to be a completely honest and straightforward witness. I accept both his oral evidence and what is contained in his affidavits.
(b) In his affidavit of 6 December 2018, the plaintiff has described the pain which he experiences on the inner side of the right wrist and up his right arm to the region of the right elbow. All symptoms are worse in cooler weather or if he uses his right hand too much. He has referred to the fact that, usually at least once a day, he puts his wrist under warm water, as this eases the aching and pain in it. In his affidavit of 22 August 2019, he has sworn as to a constant ache on the inner side of the right wrist, going up his right arm to the elbow region. This increases if he uses his right hand too much or in cooler weather. He repeated that usually at least once a day he puts his wrist under warm water in order to ease the aching and pain. In his oral evidence, he described how anything that he does which causes jolts to his right hand sends pain into his wrist. In short, he has persistent pain, virtually on a daily basis.
(c) As I have indicated, I had the opportunity to inspect the plaintiff’s right wrist and lower arm at short range. I repeat that this is not a case in which reliance was placed on paragraph (b) of the definition, but the size of the scarring nevertheless has the potential to be of some limited significance. Whilst it is not particularly prominent and is in part obscured by a tattoo, nevertheless it can be seen to be quite a lengthy scar. I note that Mr Buntine described it as being 7 centimetres long. To me, it seemed to be at least that. It is indicative of more than minor surgery having been performed.
Further, the plaintiff demonstrated to me the range of movements of the wrist. I note that Mr Stapleton found the plaintiff’s range of movements to be very restricted. Mr Buntine, examining on behalf of the defendant, commented that the plaintiff could not extend his right wrist beyond the neutral position, also commenting that the plaintiff was cooperating fully with the examination and was experiencing significant pain when he extended his right wrist as far as the neutral position because of the contracture of the flexor carpi radialis tendon – see his supplementary report of 8 October 2018.
Certainly the plaintiff demonstrated to me that he was greatly restricted in relation to movements described by Mr Harrison as the “royal wave” – that is, greatly restricted in relation to the upward and downward movement of his hand. He also gave evidence as to such matters as the need to pin his finger into the handlebar of his bicycle “so it can’t move around” and how, for example, he would put a shopping bag into his right forearm and “just pin it against myself”, as opposed to carrying it – see T59.
In summary, he has a noticeably limited range of movement in his lower right arm and wrist and this interferes with his everyday activities.
(d) The plaintiff has also sworn as to difficulties which he encounters in his everyday life. Some of these may not be of great magnitude, but cumulatively they represent an important inconvenience or restriction in the use of the dominant hand and arm. In his affidavit of 22 August 2019, the plaintiff has sworn as to how he has more difficulty in distinguishing between hot and cold or blunt and sharp objects. He has less dexterity in the right hand. Doing up buttons is more difficult. He uses his left hand for toileting, tooth brushing, shaving and the like.
As he had earlier sworn, there is a loss of dexterity in relation to finer movements and he cannot lift heavy weights with his right hand. Essentially, he has to use his left hand for lawn mowing, as the pushing and pulling of the mower, along with its vibration and bumping, causes too much pain in the right wrist. He has sworn to a similar problem when attempting to hang out clothing on a line. Mr Stapleton has commented as to how lifting, pushing, pulling and repetitive activities are now beyond his capacity. In summary, the injury impacts upon many of the plaintiff’s daily activities.
(e) The plaintiff has also sworn as to a contribution to insomnia by right wrist pain. He has sworn as to how he wakes with pain when he rolls onto his right wrist. Interference with sleep has been described as a matter of great significance – see Haden Engineering v McKinnon (2010) 31 VR 1.
(f) There has also been interference with the plaintiff’s ability to engage in sporting activities and the like. True it is that his mental health and drug problems may also have caused some interference in this regard, but I am of the view that there has been at least some adverse impact by reason of the wrist injury. The plaintiff was a very keen basketball player, although there was some confusion concerning the level at which he was playing and the frequency of it immediately prior to the accident. The bottom line is that I accept that the plaintiff had played regular competition basketball until the age of 17 years, but thereafter, whilst he still liked basketball, he did not play as part of a regular team in a competition. There seems to be a distinction between his involvement in competition basketball and his playing park basketball.
The plaintiff gave evidence that, before he injured his right hand, he was very active. I would refer to this evidence at T52 and following pages and particularly at T57-8. He referred to kicking the football with friends, going to the beach, dribbling a basketball with his left hand and the like. I also gained the impression that the plaintiff, who at times had a tendency to become confused and almost aggressive about the basketball issue, was someone who engaged in a number of physical or sporting activities, albeit usually on a casual basis, before the accident and has been deprived of any such enjoyment thereafter. It is certainly an issue concerning which he appears to be somewhat passionate.
(g) I do not attach great significance to the fact that the plaintiff is not taking any medication in respect of his right wrist and lower arm. I appreciate that it is a consequence to which considerable weight can be attached. However, there are some persons who prefer to avoid the taking of medication for physical ailments. I am satisfied that the plaintiff is such a person. He has sworn that he prefers to put his hand and wrist under warm water rather than take painkilling medication.
In relation to medication, the plaintiff stated that he had tried it, that it “didn’t sit right” and he is “not going to be taking it again”. He expressed concern and fear about becoming addicted to something like Panadeine Forte. His position could be summarised in his statement, “I don’t normally take any sort of pain relief. I never have with any problem occurred” (sic) – see T47.
The question of pain relief received some attention and, accordingly, I am dealing with it. However, my overall conclusion is that I find nothing adverse to the plaintiff in relation to his reluctance to take painkilling medication. Possibly as a result of his Asperger Syndrome, and bearing in mind the somewhat single-minded manner in which he gave his evidence, I accept that he has formed the strong belief that he does not wish to, or should not, take painkilling medication. This factor does not impact adversely upon my overall opinion.
67 When all of the above is taken into account, it is my opinion that the plaintiff has established that the pain and suffering consequences from which he suffers are appropriately described as being more than significant or marked and as being at least very considerable. He has discharged the burden of proof in that regard.
Conclusion
68 In relation to pecuniary loss damages, the plaintiff has failed to discharge the burden of proof and his application in that regard is dismissed. In relation to pain and suffering damages, the plaintiff is successful and has discharged the burden of proof. Leave is given to him accordingly.
69 I shall hear the parties as to any further ancillary orders that are required.
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