Williams v BlueScope Steel Limited
[2020] VCC 1258
•21 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-20-00554
| CHERYL ANNE WILLIAMS | Plaintiff |
| v | |
| BLUESCOPE STEEL LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne (via Zoom hearing) | |
DATE OF HEARING: | 5 and 6 August 2020 | |
DATE OF JUDGMENT: | 21 August 2020 | |
CASE MAY BE CITED AS: | Williams v BlueScope Steel Limited | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1258 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury to the left wrist – whether the consequences of the impairment of function are “serious” – concurrent injury to the right wrist – concurrent osteoarthritic knee condition – whether the plaintiff discharged the onus to disentangle the consequence of the left wrist from the concurrent conditions
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335; Evidence (Miscellaneous Provisions) Act 1958
Cases Cited:Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67, Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: The plaintiff’s originating motion is dismissed with costs.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms C Willshire | Zaparas Lawyers Pty Ltd |
| For the Defendant | Ms A Bannon | Hall & Wilcox |
HIS HONOUR:
Introduction
1 The plaintiff commenced employment with the defendant in about 1987 as a process operator. On 1 September 2016, she suffered an injury to her left wrist. She was pulling on a roll of vinyl while operating a machine. The vinyl tore, with the result that she lost her grip of it. She fell to the ground on her outstretched left hand.
2 On 3 September 2016, the plaintiff was admitted to the Frankston Hospital. She underwent surgery to her left wrist by way of open reduction and internal fixation to reduce a fracture. The surgeon who performed that surgery introduced screws into the plaintiff’s left wrist which protruded to such an extent that it resulted in the rupture of the extensor pollicis longus tendon. The plaintiff became aware of the rupture when undertaking the simple task of pulling on a work glove. The plaintiff underwent further surgery which I will summarise later in these reasons.
3 There was no issue raised by the defendant that the initial injury and the subsequent complication constitute a compensable injury. The only issue raised by the defendant was whether the impairment consequences of the impairment of the function of the plaintiff’s left wrist meet the statutory test of seriousness.
Appearances
4 Ms C Willshire of counsel appeared for the plaintiff. Ms A Bannon of counsel appeared for the defendant.
5 Both parties consented to the proceeding being conducted remotely. I was satisfied that the technical requirements referred to in s42G of the Evidence (Miscellaneous Provisions) Act 1958 were met. I then directed that pursuant to s42E(1), that the parties appear, give evidence and make submissions in the application by audio-visual link.
Summary
6 I am satisfied that the plaintiff suffered a left wrist injury which has permanently impaired the function of her left wrist with consequences; however, the consequences fall somewhere between being modest to moderate, and certainly not “very considerable”.
The Plaintiff’s treatment
7 The defendant did not contest any of the plaintiff’s evidence relevant to the diagnosis and treatment of her left wrist injury nor the opinions of any of the treating and medico-legal medical practitioners who examined her for the purpose of providing an opinion relevant to the issues raised in this application. I will, therefore, provide only a short summary of the medical evidence.
8 The plaintiff submitted that the most informative description of her left wrist injury and the episodes of surgery that were required are best summarised by Mr John Buntine, hand, plastic and reconstructive surgeon. He examined the plaintiff for the defendant on 30 April 2019. He provided a report dated 3 June 2019.[1]
[1]Defendant’s Court Book (“DCB”) 61-76
9 Mr Buntine understood that the plaintiff had suffered a fracture of the lower end of her left radius. He described the treatment as being the usual manner of reduction of the fracture by the application of a volar plate and screws. He understood that the screws were too long and passed through the lower end of the radius, protruding to the extent that they caused the attrition of the extensor pollicis longus tendon. The mechanism of the initial injury and the attrition of the tendon occurred in the manner which I have described earlier in these reasons.
10 The plaintiff saw Dr Michael Glasby, general practitioner, for treatment for the initial injury and when the attrition of the tendon occurred. He referred her to Associate Professor David Hunter-Smith, reconstructive plastic surgeon.
11 Professor Hunter-Smith wrote a courtesy letter to Dr Glasby dated 16 March 2017,[2] and he subsequently provided a report dated 18 December 2018.[3] He understood that the plaintiff had undergone surgery for the initial injury, and that she had subsequently suffered the attrition of the tendon. He recommended that she undergo surgical repair of the tendon.
[2]Plaintiff’s Court Book (“PCB”) 24
[3]PCB 25-27
12 Professor Hunter-Smith performed surgery on the plaintiff’s left wrist on two occasions. The first occasion was on 21 March 2017. The surgery involved the mobilisation of the extensor indicis tendon which was then rerouted to the tendon of the extensor pollicis longus.
13 Subsequently, the plaintiff underwent hand therapy. She came under the care of Ms Jane Aarons, occupational therapist and hand therapist. The plaintiff first saw her on 8 June 2017. She provided a report dated 22 February 2019.[4] It was during an initial session of hand therapy on 8 June 2017 that the plaintiff reported to Ms Aarons that she could not fully straighten her left index finger. It would appear that it was as a result of that problem that the plaintiff returned to see Professor Hunter-Smith.
[4]PCB 33-39
14 Professor Hunter-Smith re-examined the plaintiff and noted that there was some slight extensor lag of the plaintiff’s index finger and some swelling over the dorsal aspect of her left wrist. It was investigated through ultrasound. He considered that it demonstrated a subluxation of the extensor digitorum tendon requiring exploration. He subsequently undertook surgical exploration of that area on 12 April 2018. He discovered that the extensor digitorum tendon had completely ruptured through an attrition injury from a long previously undetected screw.
15 Professor Hunter-Smith last reviewed the plaintiff on 3 December 2018. He recorded that she had improved significantly, and that her condition had stabilised. He noted some altered sensation over the superficial radial nerve distribution which he considered was consistent with the surgery he had performed. He considered that the plaintiff was fit for her pre-injury employment with the defendant. He did not consider there was any necessity for any further treatment, and he considered that her prognosis was excellent.
16 The plaintiff persisted with the hand therapy provided by Ms Aarons after the second surgery. The plaintiff last saw Ms Aarons for treatment in August 2018.[5] Both the plaintiff and the defendant relied upon aspects of the content of Ms Aarons’ report. The plaintiff submitted that Ms Aarons identified a complication of the left wrist injury. She referred to it being an intra-articular fracture which will, in all likelihood, result in the plaintiff developing osteoarthritis. The defendant submitted that when regard is had to testing undertaken by Ms Aarons of the plaintiff relevant to static grip strength and pinch strength, that she now has a roughly equivalent grip strength when a comparison is made between her right and left hands; that she has no significant difference in grip strength between her right and left hands, and similarly with her pinch strength.
[5]PCB 10
17 The plaintiff has not returned to see either Professor Hunter-Smith nor Ms Aarons. The plaintiff’s current treatment regime comprises the use of painkilling medication: Panadol Osteo, and a recent prescription for Panadeine Forte; the application of Voltaren cream; gloves to keep her hand warm; exercises using a rubber bar, a stress ball and weights and massage treatment.[6]
[6]PCB 16-17
Medico-legal examinations
18 Neither the plaintiff nor the defendant made any significant reference to the reports of the treating medical practitioners nor the medical practitioners who examined her on a medico-legal basis. That was because the defendant took no issue with the medical opinions relied upon by the plaintiff.
19 I should make some reference to the fact that the plaintiff was examined by Mr Buntine, and Dr Thomas Robbins, hand and plastic surgeon. Dr Robbins examined the plaintiff on 3 December 2019 and provided a report dated 4 December 2019.[7] Despite the fact that Dr Robbins doubted some of the complaints made by the plaintiff, for example dropping objects because of problems with her left hand, the defendant did not rely upon that evidence. Therefore, I will follow suit with the plaintiff and the defendant and concentrate, as they did, on the consequences claimed by the plaintiff.
[7]DCB 77-82
Consequences
20 The defendant submitted that on any analysis, the consequences claimed by the plaintiff cannot meet the statutory test of seriousness. Furthermore, it submitted that the plaintiff has failed to discharge the onus of proof which she bears referred to in Peak Engineering Pty Ltd & Anor v McKenzie.[8] The submission was based upon the plaintiff suffering a subsequent injury to her right wrist and from a bilateral osteoarthritic knee condition. The defendant submitted that both result in pain and suffering consequences which the plaintiff has not stripped away to expose what consequences are attributable to the impairment of function of the left wrist.
[8][2014] VSCA 67 (“Peak Engineering”)
21 I propose to identify each of the consequences on which the plaintiff relied in the same way that the plaintiff and the defendant chose to address them.
The Plaintiff’s work
22 I will now address each of the consequences relied upon by the plaintiff. I propose to do that following the order of the challenge to those consequences undertaken through cross-examination.
23 The plaintiff is currently employed as a process technician or process operator with the defendant. The evidence relevant to the work tasks undertaken by the plaintiff was relatively brief. Under cross-examination, she described her work tasks as follows:
Q:“Can you tell us what does a process technician or a process operator do?---
A:We do a variety of tasks. We’re in a group of probably 11 and we do different jobs throughout the line. Like I said, there’s a group of 11 of us, we help out with different positions. We actually paint Colorbond seal for roofing and we do a variety of tasks. So we swap around because we do 12-hour shifts to stop boredom as well.
Q:What products are you dealing with? Steel products, I assume?---
A:We do zincalume, we do galvanise, we do rainwater tanks and we do the (indistinct) for garage does.”[9]
(sic)
[9]Transcript 14. The reference to “garage does” has been incorrectly transcribed. It should read “garage doors”.
24 Under further cross-examination, the plaintiff said that the shifts that she performs vary from week to week. Her standard shifts are 12 hours. She performs some overtime. On some occasions she might be asked to cover for someone, which will require her to perform an additional 12-hour shift or perhaps only four hours. She agreed that it is possible that she could work in excess of 50 hours per week.[10]
[10]Transcript 16-17
25 It was my impression that the plaintiff has little or no incapacity for work. Apart from the occasions when she was absent from her work due to the need to recover from the three surgical procedures she has undergone, she is otherwise working full time on full duties and performing overtime. If she has an incapacity, it occurs when she needs to get up from the ground. She gave the example that if she is cleaning up a paint spill, that she needs to get onto the ground, and then has difficulty getting up.[11] I assume that she meant that she needs to support herself with her hands, and in particular, with her left hand in order to then rise up to a standing position which would place stress on her left hand.
[11]Transcript 39
Pain/limitation of movement
26 The plaintiff described suffering variable pain in her left hand, which she attributes to carrying objects, after a day’s work and worsening pain with cold weather. She also described experiencing a painful cramping in her left hand.
27 The limitation of movement of the plaintiff’s hand is no doubt restricted by the level of pain she experiences in the circumstances when it occurs, and also when she places her hand flat on a table. She is then unable to raise two of her fingers upwards due to the nature and extent of the injury to her left hand. She also experiences some loss of strength and ability to move her hand freely as she was able to previously.[12]
[12]PCB 11, 16 and 17
Driving
28 The plaintiff has two cars. She described them as being “automatic” which I understood to mean that they have power steering. She said one has stiffer steering than the other, as well as having a stiffer handbrake and heavier doors. She said that she experiences three problems when driving that car – she no longer drives long distances because she finds the car hard to handle; the twisting and turning required in operating the steering wheel is some measure of a problem, and reverse parking is a problem; however, the plaintiff continues to drive a car and to perform the operations necessary to drive a car.[13]
[13]PCB 11 and Transcript 28-29
Gardening
29 The problem which the plaintiff has encountered with gardening is the awkwardness of getting down onto the ground and then getting up off the ground because of the pressure which she places on her hands, and for present purposes, on her left hand;[14] however, otherwise the plaintiff continues to garden.
[14]PCB 12 and Transcript 29-30
Grandchildren
30 The problem which the plaintiff has encountered with her youngest grandchildren who are eight, five and three, is trying to pick them up and hold them;[15] however, she continues to occasionally babysit her grandchildren, and continues to play games of basketball with them, although, when it comes to wrestling with her grandchildren, she struggles with that activity;[16] however, the interaction with her grandchildren is not entirely lost to her.
[15]PCB 12 and Transcript 31
[16]PCB 12 and 18-19 Transcript 31-32
Bathing grandchildren and dogs
31 The problem the plaintiff has encountered with bathing her grandchildren and dogs is the unpredictable nature of their behaviour when she bathes them. It can result in her experiencing pain in her left hand through that activity, and when she knocks her left hand;[17] however, under cross-examination, she said that she still engages in both activities and is able to get down to the level required to bathe her grandchildren and dogs, although, doing so is awkward.[18]
[17]PCB 18
[18]Transcript 41
Weight gain
32 The problem which the plaintiff has encountered with her weight gain is additional weight of about 10 kilograms which she puts down to not being as fit and active as she would like to be due to the operations that she has undergone and the persisting problems which she says she has with her left wrist injury.
33 Under cross-examination, the plaintiff was asked what it is that she is unable to do to keep her weight down. The single impediment which the plaintiff identified is not being able to attend a gym, presumably to undertake relevant gym routines which would assist her in controlling her weight and reducing her weight; however, the plaintiff has not attended a gym for “probably a few years”.[19]
[19]Transcript 32
34 The plaintiff did not otherwise identify any other impediment to attending a gym. It is generally known that gym work, in its many manifestations, does not entirely rely on having uninjured hands. There are many gym routines which involve aerobic and floor exercises which would not expose the plaintiff to placing stress on her hands.
Bicycle riding
35 The problems which the plaintiff has encountered with riding a bicycle are twofold: using the handbrake on her bicycle with her left hand, and the fear that she has developed about riding a bicycle.[20]
[20]PCB 18
36 I operated on the assumption that the plaintiff was referring to a conventional bicycle with handlebars onto which handbrakes are fixed. She described only using the left-hand handbrake operated with her left hand which I must say I find unusual that she would not apply the brakes using both hands; however, if that was her invariable habit, then it is understandable why she would have difficulty applying force through her left hand.
37 Under cross-examination, the plaintiff said that she is guarded about her left hand because of a fear of hurting it again through riding a bicycle. It is not that she cannot ride a bicycle due to her left hand, and also her injured right hand which I will refer to later in these reasons,but a fear that she has developed of risk of injury if she returns to riding a bicycle.
Football
38 The plaintiff is a very keen football fan following the fortunes of the Collingwood Football Club. She is a member of the Collingwood Cheer Squad. She attends the football every week, no doubt subject to whether her football team is playing in Victoria and subject to the current COVID-19 lockdown.
39 The problems which the plaintiff has encountered are clapping,[21] and as a member of the Cheer Squad, holding the banner through which the players run when they come out onto the ground, and other banners which members the Cheer Squad wave from behind the goals. She said that the banners that are held by members of the Cheer Squad behind the goals are pretty heavy and that there is no way that she could hold and wave those banners because she might lose grip of the banner and drop it;[22] however, the plaintiff still goes to the football and no doubt enjoys it.
[21]PCB 17
[22]PCB 17 and Transcript 37-38
Holding objects
40 One of the problems which the plaintiff has encountered with the manual functioning of her left hand is that she has dropped objects which she is holding, for example a coffee mug or glass. She said that it can happen all of a sudden, that her grip will be lost and she would drop something.[23]
[23]PCB 17-18 and Transcript 38, 48 and 49
Fitted sheets
41 The problems which the plaintiff has encountered putting sheets on a bed is when she puts fitted sheets on a bed which involves lifting a big mattress with either hand in order to fit the sheet. She usually gets help from her husband;[24] however, the plaintiff is still able to perform what is required in putting fitted sheets on a bed.
[24]PCB 18 and Transcript 39-40
General domestic tasks
42 The problems which the plaintiff has encountered in performing general domestic tasks are with cooking,[25] vacuuming,[26] baking,[27] cleaning her oven, and using ladders, which I assume she used to perform cleaning.[28]
[25]PCB 12
[26]PCB 12
[27]PCB 13
[28]PCB 18
43 The plaintiff continues to cook, except that she finds it difficult to lift heavy pots. Her husband now washes them and puts them away. She has encountered some difficulty with her left hand because she has dropped things when cooking and finds that the use of her left hand is clumsy, leading to her breaking “things”. She did not say what those “things” are that she has broken; however, I assume they are crockery, and similar type items used in cooking.
44 The plaintiff no longer performs vacuum cleaning. Her husband has taken that over; however, it would appear that the only interference with her capacity to clean her house is limited to using a vacuum cleaner.
45 The plaintiff continues to bake, but she does it less now because some parts of it, which the plaintiff did not identify, cause her pain in her left hand, and she finds the washing up afterwards is hard, to the extent that her husband helps her with the washing up.
46 The plaintiff can use a ladder. Under cross-examination, she described using a ladder at work. She said that it was a little more difficult climbing a ladder holding onto the side railings with her left hand.[29]
[29]Transcript 41
Holiday activities
47 The plaintiff and her husband have travelled reasonably extensively overseas and within Australia. The problems which the plaintiff has encountered when travelling is engaging in recreational activities, such as on occasion when she and her husband went on holiday to Port Stephens. She was unable to use a sleigh to ski down sand dunes because it involved putting out her hands into the sand on the descent.[30]
[30]Transcript 47
48 Another activity which has caused her a problem is using oars on a rowboat at the Kew boathouse. She said that she could not manage using an oar to pull against the water.[31]
[31]Transcript 48
49 I should note that the plaintiff was not cross-examined about either of these activities because they were neither referred to in her affidavits nor in her evidence-in-chief. She gave evidence about these two activities during re-examination without objection.
50 The plaintiff referred to being unable to jet ski in the Maldives because of a problem that she envisaged she would have on using her left hand to control a jet ski; however, under cross-examination, the plaintiff seemed to be confused about whether she and her husband did any jet skiing in the Maldives. After giving it some thought, she said that she did not, but her husband did, and he has only been jet skiing once on holidays they have had together.[32]
[32]Transcript 35-36
Pool
51 The plaintiff has a pool table. Playing pool was something she enjoyed. She said that she does not think she can play pool any longer, and has not attempted to play it since she suffered injury to her left hand.[33]
[33]PCB 13
Dressing
52 The problem that the plaintiff encountered with dressing occurred during periods when she was recovering from surgery. She is now able to dress, except that she found it difficult to do up a bra, and otherwise experienced difficulty using her left hand when dressing, but she did not say in what circumstances that difficulty occurs.[34]
[34]PCB 12
Dog walking
53 The plaintiff has three Border Collies which she enjoys walking with her husband. She does not hold them on a lead anymore in case they pull on the lead.[35]
Peak Engineering[36]
[35]PCB 12
[36]Supra
54 The plaintiff suffered an injury to her right wrist at the defendant’s premises on 5 July 2017. She saw Dr Glasby on 6 July 2017. He diagnosed the injury to the plaintiff’s right wrist as an un-displaced radial fracture. He placed a plaster cast over the plaintiff’s right wrist. The plaintiff estimated that the plaster cast was in place for about five days. After it was removed, a splint was placed on her right wrist.[37] In addition to the treatment provided by Dr Glasby, the plaintiff attended Ms Aarons for hand therapy for her right wrist injury.[38]
[37]Transcript 17-19
[38]Transcript 20
55 The plaintiff was referred to two Certificates of Capacity provided to her by Dr Glasby relevant to her right wrist. The first is dated 6 July 2017.[39] It certified the plaintiff as having no capacity for employment from 6 July to 2 August 2017. The second is dated 12 October 2017.[40] It certified the plaintiff as having a capacity for her pre-injury employment from 13 October 2017. The defendant did not produce any certificates in between the first and the second certificates. Under cross-examination, the plaintiff was asked whether she returned to work before 12 October 2017. It was her recollection that she was not working before she was cleared to go back to work. She agreed that the certificates were only referable to her right wrist.[41]
[39]DCB 15-17
[40]DCB 17-18
[41]Transcript 20-21
56 Under cross-examination, the plaintiff said that she still experiences pain in her right wrist. She demonstrated the distribution of pain resulting from the right wrist injury. She used the fingers of her left hand to run her fingers down the outside of her index finger to the base of her thumb and then across the top of her right wrist.[42]
[42]Transcript 22-23
57 The plaintiff has experienced an osteoarthritic condition affecting both of her knees. Under cross-examination, the plaintiff was referred to Dr Glasby’s clinical notes, and in particular, to an entry dated 18 January 2019 in which he noted that the plaintiff was experiencing increasing knee pain. The clinical note refers to the plaintiff reporting increasing knee pain, with pain in the medial aspect of her thighs and a crunching noise in her knees when standing. She was referred to have an x-ray and was prescribed Mobic which I understand to be an anti-inflammatory.[43]
[43]DCB 53
58 Under further cross-examination, the plaintiff was referred to Dr Glasby’s clinical note of 30 April 2019 in which the plaintiff was assessed for a disabled parking permit. The reason for seeking Dr Glasby’s approval for the permit was noted as because of knee pain.[44]
[44]DCB 54
59 The defendant relied upon the observation made by the Court of Appeal in Peak Engineering[45] that where there are other medical conditions concurrently producing pain and suffering consequences, that it will ordinarily be necessary to make findings about all the pain and suffering consequences which are operative at the date of the trial as an essential precondition to the task of deciding which of the pain and suffering consequences are attributable to the claimed injury or the other medical conditions.
[45](Supra) at paragraph [24]
60 The defendant submitted that some of the plaintiff’s consequences are contributed to by her right wrist injury and her knee condition. For example driving, gardening, getting up off the ground, bathing her grandchildren and dogs, being part of the Collingwood Cheer Squad, fitting sheets, cleaning, and climbing a ladder are probably impacted upon to some degree by her right wrist injury, and those which involve mobility might likewise be impacted upon to some degree by her knee condition. The defendant submitted that the plaintiff has failed to discharge the onus she bears to demonstrate what pain and suffering consequences result from the right wrist injury and the knee condition.
61 Furthermore, the defendant submitted that it did not cross-examine the plaintiff on the claimed consequences of cooking, walking dogs, using a pool table and baking, because the plaintiff did not say in either of her affidavits whether those consequences are attributable to her left wrist injury alone or to the injuries to both wrists.
62 I think there is something in both of the submissions made by the defendant. The plaintiff’s own evidence is that she required a reasonable amount of treatment for the right wrist injury, demonstrating its seriousness, and continues to experience pain in the distribution which she demonstrated while giving evidence. It is an injury which is likely to impact on the plaintiff’s need to undertake bilateral manual operations involved in the activities summarised above.
63 I am not as convinced that the knee condition is as active a problem for the plaintiff as is the right wrist injury because the plaintiff gave evidence, which I accept, that although she has knee pain, she is able to walk and is not prevented from “doing anything”.[46]
[46]Transcript 25-26
Stoicism
64 The plaintiff submitted that the fact that she was able to return to work reasonably quickly after each episode of surgery on her left wrist is a marker of her stoicism, and indeed, her retention of her employment and her return to most of the social, domestic and recreational pursuits which were part of her life before she suffered that injury.
65 In that respect, the plaintiff relied upon the reference to the stoic in Dwyer v Calco Timbers Pty Ltd (No 2)[47] in which Nettle JA (as he was then) observed that it would be unfortunate and wrong if an applicant for serious injury were treated less favourably than another who, being of less strength of character, simply resigned himself to an injury.
[47][2008] VSCA 260 at paragraph [3] (“Dwyer”)
66 There is a distinction between the plaintiff and the stoic referred to in Dwyer.[48] The plaintiff’s own evidence and that of the uncomplicated and uncontroversial medical evidence is that the plaintiff has returned to a reasonable use of her left wrist, returning her to a capacity to return to work and to most of the social, domestic and recreational pursuits on which I have spent some time summarising and analysing. That is not the behaviour of a stoic, but more the behaviour of someone who has made a reasonable recovery from an injury with relatively modest to moderate impairment of functioning.
[48]Ibid
Disposition
67 The plaintiff is an entirely creditworthy and reliable witness. I have no hesitation in accepting the whole of her evidence, and indeed, observing that she is a well-motivated individual who has made a reasonable recovery from the left wrist injury and has returned to life almost as it was before she was injured.
68 The fact that the plaintiff has been able to return to manual work full time without any restriction is significant. It clearly demonstrates that she has recovered from the initial seriousness of her left wrist injury and is able to undertake manual work over very long shifts of up to 12 hours, with overtime that can see her working 50 hours or more in an average working week. The fact that the plaintiff has been able to return to this work does not necessarily preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account.[49]
[49]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph [15]
69 The plaintiff has not had any medical treatment of any significance now for a considerable period of time. The last episode of medical treatment was the prescription of Panadeine Forte recently. Other than the use of Panadol Osteo and Panadeine Forte, the plaintiff has not had the need to seek any medical treatment or hand therapy, except for massage therapy. I think this is indicative of her level of recovery, modest symptoms and her return to an overall reasonable level of functioning with her left hand.
70 In addition to her capacity to return to full-time work, the plaintiff has otherwise been able to return to nearly all of her pre-injury social, domestic and recreational activities. There are no doubt activities which she is unable to engage in, but when they are measured against what she has returned to, it is apparent to me that what she has lost in terms of consequences is relatively modest, and at best something less than moderate.
71 In reaching these conclusions, I have not incorporated the impact of the plaintiff’s right wrist injury consistent with the submission made by the defendant; however, when I incorporate the contribution to some of her consequences of the impairment of the function of her right wrist injury, then I agree with the defendant that the plaintiff has not discharged her onus to adduce evidence to allow me to make findings about all of the pain and suffering consequences attributable to her left wrist injury and her right wrist injury. I suspect, but I do not know all that clearly, that the consequences attributable to the plaintiff’s right wrist appear relatively modest, as are the consequences of her knee condition.
72 In the end, I am not satisfied that the impairment of the function of the plaintiff’s left wrist has pain and suffering consequences which are at least very considerable, after making the relevant comparison with like impairments as I am obliged to do.
73 I will order that the plaintiff’s Originating Motion be dismissed with costs.
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