Wilson v S T Hamilton and Sons Constructions Pty Ltd
[2016] VCC 1448
•31 August 2016 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-05443
| BRETT ANDREW WILSON | Plaintiff |
| v | |
| S T HAMILTON & SONS CONSTRUCTIONS PTY LTD (ABN 89 005 549 075) | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 25 and 26 July 2016 | |
DATE OF JUDGMENT: | 31 August 2016 (Revised) | |
CASE MAY BE CITED AS: | Wilson v S T Hamilton & Sons Constructions Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1448 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Bilateral epicondylitis – whether the use of the arms constitutes one body function or each arm must be considered separately – leave sought only for “pain and suffering” damages – “range” case
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12; Sabo v George Weston Foods [2009] VSCA 242; Lu v Mediterranean Shoes Pty Ltd & Ors (2000) 1 VR 511; Humphries & Anor v Poljak [1992] 2 VR 129; Lakic v GB Galvanizing Service Pty Ltd & Anor (unreported VCC, 23 November 2001, No 2000 of 05195); Baltruschaitis v G & K O’Connor Pty Ltd (unreported, VCC, 16 May 2001); Jurukouski v Windsor Caravans Pty Ltd [2015] VCC 1800; Ristovska v VOA WebCo Pty Ltd [2010] VCC 152; Wright v Mount Edisar Pty Ltd [2006] VCC 410; Giuliano v Red Robin Pty Ltd & Anor [2008] VCC 1805; Nguyen v Aisin Australia Pty Ltd [2012] VCC 799; Cartes v Silcraft Pty Ltd [2011] VCC 1502; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sabo v George Weston Foods [2009] VSCA 242; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
Judgment: Judgment for the plaintiff. The plaintiff is granted leave to bring common law proceedings for “pain and suffering damages” in respect of his bilateral arm injury.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I Fehring with Mr G Pierorazio | Stringer Clark Lawyers |
| For the Defendant | Mr W R Middleton QC with Ms D Manova | Thomson Geer |
HIS HONOUR:
1 By way of Originating Motion, Brett Andrew Wilson (“the plaintiff”), seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) to bring common law proceedings to recover damages for injury to his left and right arms suffered by him during the course of his employment (“the injury”) with S T Hamilton & Sons Constructions Pty Ltd (“the defendant”).
2 The plaintiff seeks leave to bring proceedings in relation to the injury for “pain and suffering” damages only, within the meaning of s134AB(37) of the Act.
3 The particulars of injury[1] describes the injury as the:
“- Production, aggravation, acceleration and/or exacerbation of degenerative changes in the elbows including left and right lateral epicondylitis”
giving rise to a serious impairment of the arms.
[1]See exhibit 1, Plaintiff’s Court Book (“PCB”) 1
4 The plaintiff was the only witness who gave evidence, and was cross-examined. Both parties tendered various documents.[2]
[2]See Annexure “A”.
Relevant legal principles
5 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a serious injury within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[3]
[3]See s134AB(19)(a) of the Act
6 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act, which reads:
“serious injury means—
(a) permanent serious impairment or loss of a body function … .”
7 The loss of body function for the purposes of paragraph (a) is said to be bilateral arm use.
8 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)“The injury” suffered by him arose out, or in the course of, or due to the nature of, his employment with the defendant on or after 24 October 1999;”[4]
(b)“The injury” and any loss of body function or resultant impairment, must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future;[5]
(c)The consequences of the injury in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function is:
“… when judged by comparison with other cases in the range of possible impairments or losses of a body function … may be, fairly described as being more than significant or marked, and as being at least very considerable.”[6]
This test is sometimes referred to as “narrative test”.
[4]See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
[5]See Barwon Spinners Pty Ltd & Ors v Podolak (supra)
[6]See s134AB(38)(b) and (c) of the Act
9 In determining the application, the Court:
(a)Must not take into account any psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[7]
(b)Must make the assessment of “serious injury” at the time the application is heard;[8]
(c)Must give reasons that disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application;[9]
(d)Notes that the question of whether an “injury” satisfies the narrative test is largely a question of impression or value judgment.[10]
[7]See s134AB(38)(h) of the Act
[8]See s134AB(38)(j) of the Act
[9]See Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1 at paragraph [33]-[36]
[10]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issues
10 When queried as to what were the issues in the proceeding, Senior Counsel for the defendant stated:
(a)Whether the organic consequences of any impairment or loss of body function satisfies the narrative test – that is to say, what is commonly referred to as a “range case”;
(b)When queried by the Court as to whether there was an issue as to whether bilateral use of the arms can be considered one loss of body function, or one impairment, Senior Counsel initially reserved his position but, in final addresses, submitted that each arm, independently, should be considered as to whether or not the plaintiff has demonstrated a serious injury in that arm or, indeed, the other arm. In this respect, counsel referred to and relied on Lu v Mediterranean Shoes Pty Ltd & Ors.[11]
[11](2000) 1 VR 511
The evidence of the Plaintiff
11 The plaintiff gave evidence that he had recently read both his affidavits – one sworn on 26 July 2015[12] (the first affidavit) and the later one sworn on 30 May 2016[13] (the second affidavit) and the contents of both were true and correct. The plaintiff did give evidence that since swearing the second affidavit he has changed address.
[12]See Exhibit 1 at PCB 2
[13]See Exhibit 1 at PCB 7
12 The plaintiff also gave evidence that earlier this year he purchased a “brace”, which he described as like a very tight elastic band with a tightener made of Velcro for use on his right elbow. He purchased such brace from a local chemist and uses it mainly at work most days, just below the right elbow. He also described it as being “actually designed” for tennis elbow.
13 By way of his first affidavit, the plaintiff gave evidence that he is a forty-seven-year-old (born in April 1969) man who is naturally right handed. He is married and his wife works as a home carer, and they have three children, a son aged twenty-two, and two daughters aged thirteen and twelve, who attend school.
14 The plaintiff completed Year 11 in Mt Macedon, after which he commenced work which he described as “hands on” which included handyman work, work at an abattoirs and work as a diamond driller.
15 In 1995, he suffered a “cervical fracture”, together with a “right shoulder injury and left thumb injury” from which he made good recoveries.
16 On 6 October 2008, he commenced employment with the defendant as a grader operator in an underground mine in Stawell. He was earning approximately $1,080 gross per week with a net payment of $800 to $900 per week.
17 The plaintiff describes his job to drive the grader and maintain the road or “declines” as they were known, so that the trucks and other vehicles could travel up and down, out of or into the mine. In particular, he described the operation of the grader in the following terms:
“Although the steering wheel in the grader was adjustable, it needed to be held close to the chest, about 150mm or so, in order to make steering the grader manageable. The steering wheel was held in that close that there was considerable force on the elbows when steering and turning. Moreover there was a significant amount of turning involved, negotiating the grader within the mine. In particular, there were frequent tight turns which required the rapid and repetitive turning of the steering wheel using my left hand. In this regard, I was constantly having to move the grader out of the way in order to let the trucks go by. I would have to pull the grader over into a cutting to get out of the way.”[14]
[14]See exhibit 1, paragraph [10], page 3 PCB
18 Over the course of his employment, he commenced to develop pain in his elbows, initially on the left, but subsequently on the right, as a result of over relying on the right arm. He believes he first noticed pain in or about 2011 but managed to keep on working up until 27 May 2012, ceasing work at that time. He consulted his local general practitioner, Dr Obi, when working with the defendant, who treated him with anti-inflammatories and injections to the left elbow. Dr Obi referred the plaintiff to the orthopaedic surgeon, Mr John Nelson, who was first consulted on 6 October 2011, when he also injected the left elbow with steroids.
19 Over the period of time that he continued to work up to 27 May 2012, he was injected with steroids to both elbows by Mr Nelson on 21 November 2011 and in March 2012.
20 On ceasing work, he lodged a Claim for Compensation on 18 June 2012 which was accepted. In about July 2012, he resumed employment with the defendant on “modified duties” which involved driving water tankers underground instead of the graders. He did this work for about six months and although it was a “little bit easier”, his elbows were still painful when driving the underground water tankers. After about six months or so, he was put off work on the basis that the defendant no longer had a job available for him.
21 Mr Nelson performed a left lateral epicondylitis release on 26 October 2012, followed by a right lateral epicondylitis release on 22 February 2013.
22 In or about early 2014, the plaintiff, through a friend, obtained work in Geelong with a window maintenance business called Southern Star Windows. Such job required him to travel from Stawell to Geelong for the week, staying there with his friend while working, and then coming back to Stawell at the weekend. Such work involved inspecting and testing windows and sliding doors in new houses, which he found difficult on his elbows, and such job only lasted a few months.
23 The plaintiff was then out of work until about October 2014, when he commenced work with his present employer, “Wheelie Waste”, situated in Woodend. Such job was found on the internet. His job involves driving trucks and picking up domestic Wheelie bins. He is being paid less than he was earning with the defendant, something in the order of $742.00 net per week. On finding that particular job, he and his family moved to Kyneton and have been living there ever since.
24 As at the time of swearing his first affidavit, the plaintiff describes his ability to perform his current job in the following terms:
“… I am coping but just as driving the truck for prolonged periods of time increases the pain in my elbows, particularly my left. I find it especially difficult to perform three point turns when driving the trucks because of the extra pressure on my elbows.”[15]
[15]See exhibit 1, paragraph [25], page 5 PCB
25 At the time of swearing his first affidavit, the plaintiff describes suffering from constant and ongoing pain in his left and right elbows which is made worse with activity. In particular, his left arm feels particularly weak and he has difficultly lifting heavy weights or performing any repetitive activity with his left arm.
26 The plaintiff manages the pain with Panadol and Nurofen Zavance and describes there are times when he needs medication every day, although there are times when he tries to go without.
27 The plaintiff describes that before working with the defendant and also working there, he underwent courses and obtained tickets in forklift driving, bobcat driving and front-end loader driving, which cost him about $330.00 each. His plan was to get new skills and eventually move into jobs using earthmoving equipment.
28 The plaintiff deposes that he has been told by his surgeon (Mr Nelson) that this is no longer a possibility (that is, driving earthmoving equipment) as he would not be able to cope with the elbow pain and restrictions. The plaintiff described that not only is he restricted in the type of work he can do, he is also restricted in “most of my day-to-day activities”. In particular, he gives the following examples:
(a) In the past, he would regularly go out and chop wood, either for his parents or for himself. He was able to chop about 5 or 6 tonnes at a time on a weekend with chainsaw and splitter. He considers that there is “little chance that I will be able to do that type of activity with my elbows now”;[16]
[16]See exhibit 1, paragraph [30], page 5 PCB
(b) He loved fishing in the past but considers this would be too difficult now because of his elbow pain. He was a member of the Stawell Angling Club and retained that membership after the elbow problems developed but after trying fishing on a number of occasions, found medication was necessary afterwards;
(c) He used to go shooting for rabbits and foxes and, again, it would be difficult in holding the rifle for any prolonged period of time because of elbow pain. Furthermore, he has used an air rifle on occasion at his parents’ house but would like to use this more often;
(d) As a family, they used to enjoy water skiing at Lake Fyans but he would be restricted in going water skiing now because of his elbow pain – although he can still drive the boat for his children, he cannot steer as holding the rope would be difficult;
(e) He was always a bit of a handyman around the house, and before his elbow injury, he was able to renovate three houses before they moved to Stawell and the house that he moved to in Stawell before he moved to Kyneton. He asserts “there is no way that I would be able to perform renovation-type work because of my elbow pain now”.[17] He is restricted in terms of using tools such as hammers and screwdrivers and is further restricted in terms of carrying and handling heavy weights;
[17]See exhibit 1, paragraph [34], page 6 PCB
(f) He is restricted in terms of gardening and mowing lawns. In particular, he is restricted in terms of trimming the hedges, and in respect of those activities, his son generally helps him out;
(g) His surgeon, Mr John Nelson, has informed him that there is “nothing further he can do for me”.[18]
[18]See exhibit 1, paragraph [36], page 6 PCB
29 By way of the second affidavit, the plaintiff gives evidence that he has not experienced any improvement in his elbows and he continues to suffer from ongoing pain in those areas. Although he has used various medications including Nurofen Zavance, Voltaren and Amcal Home Brand Ibuprofen, he thinks that his body is becoming immune to them, with only some days where there is a difference; other days there is no difference. He does rely on anti-inflammatories and painkillers most days and although appreciating they are not good for his stomach and there are occasions when he tries to go without them, he finds he cannot do this too often.
30 He describes that his doctor recently organised an MRI scan of his neck, which was performed on 19 April 2016 to rule out symptoms emanating from his neck.
31 The plaintiff describes how he continues to work as a truck driver for Wheelie Waste in Woodend. In particular, he states:
“… My duties involve having to constantly operate a joy stick with my right arm. This has the effect of aggravating the pain in my right elbow.
The pain in my elbows feels like there is a needle jabbing into them. On occasion the pain runs down into my forearms and this too can feel like a sharp pain. Movement of my hands and arms in general aggravates the pain in my elbows. I continue to suffer from weakness in the elbows and have difficulty with prolonged heavy lifting.”[19]
[19]See exhibit 1, paragraphs [7] – [8], page 8 PCB
32 The plaintiff gave evidence that there is a Coonara wood heater at his home and because he was having difficulty chopping firewood using a splitter, he purchased a petrol-driven hydraulic splitter which he has used on a couple of occasions. In particular, he describes:
“… The last occasion was a few weeks ago when my son, Matthew and I went to my parent’s property which consists of about 60 acres in order to collect some dead gum trees for fire wood. I took anti inflammatories and pain killers before we went out. I used a chainsaw in order to cut the wood up and my son used the splitter and threw the timber into the back of a ute. I performed the task with the chainsaw for about 40-50 minutes. A couple of hours later, the pain in my elbows was really bad and I had to take more medication. The pain was so bad that I had to see a doctor and I took three days off work. In this regard I knew I would not have been able to get to work and drive the truck and manoeuvre the joy stick with the pain in my elbows. Having said that, despite the fact that my current employer is aware of my injury, I do not want to be taking too many days off work for fear of losing my job.”[20]
[20]See exhibit 1, paragraph [9], page 8 PCB
33 The plaintiff confirms that he remains restricted in terms of the activities which he previously deposed to in his first affidavit. In particular, he describes how he was “mad keen” on fishing and was a member of the fishing club at Stawell, owned a “tinny” and went out fishing on Lake Fyans to catch all manners of fish, including redfin and trout in fishing competitions. He would be out in the boat at least every couple of weeks, subject to the weather, but had to end up selling his “tinny” early last year on the basis that he was no longer able to use it because of the injury.
34 In particular, he deposed that he has only managed to go fishing a number of times since swearing his last affidavit, which has involved fishing off the banks of the Lauriston Reservoir. After only a few hours, he felt increased pain in his elbows and describes how he gets phone calls and text messages from friends asking him to go fishing or telling him what fish they have caught, and he states “I really miss it”.[21]
[21]See exhibit 1, paragraph [11], page 9 PCB
35 The plaintiff also describes how he ended up selling the ski boat about three or four months ago, as it had only been taken out once in the last twelve months to Lake Laanecoorie to take the children on the back. He describes that he found steering the boat for prolonged periods of time increased the pain in his elbows.
36 He describes how he is restricted in shooting, and the most that he can do is occasionally let off an air rifle with the kids but in particular is restricted in breaking the air rifle open because of his elbow injury and his son generally does this for him.
37 Furthermore, he is generally restricted around the house and (at the time of the second affidavit), he and his family are living with his parents, although currently looking around as his parents are putting that house on the market. He notes that the house is double storey and he has had difficulty climbing up and down ladders with buckets of pain and for this reason his son has ended up doing work for him.
38 Although he does mow the lawns from time to time, in more recent times, he uses his parents’ ride-on mower, which has a skid steer which is similar to handle bars which, because of his elbow pain, is a lot more difficult to manoeuvre than a normal steering wheel. Because of this, his son helps him from time to time and he remains restricted in terms of using a Whipper Snipper.
39 In particular, he describes how he takes care performing any type of heavy lifting activity. He describes that if he bends his knees, he can manage but if he is taking the weight with his elbows, he suffers from increased symptoms in both elbows.
The evidence of Kelly-Ann Wilson
40 I refer to the affidavit of Kelly-Ann Wilson, sworn on 30 May 2016,[22] wherein she describes herself as the wife of the plaintiff, to whom she has been married for sixteen years. In particular, she asserts that the plaintiff’s right arm is worse than his left as she often sees him holding his right elbow and rubbing it. She notes that he has been using ibuprofen and also from time to time, Celebrex, which she has for a knee injury.
[22]See exhibit 1, page 11 PCB
41 At the time of that affidavit, she describes living at the property owned by her parents-in-law in Kyneton, which is about 7 acres, and has only sheep and some alpacas there. She describes that the maintenance required outdoors is too much for her husband with his arm condition and that they were likely to move house because of this. She notes that her twenty-three-year-old son does all the gardening work.
42 She also gives evidence that her husband no longer chops firewood with a splitter and also avoids doing extensive mowing as the vibrations of the mower are painful to him. Furthermore, he does not go fishing as he used to as the casting and reeling can be difficult for him, causing him not to have a boat anymore.
43 She describes that they used to enjoy camping but that is now reduced, as doing things around the campsite such as hammering in tent pegs is a problem for him and he would not go fishing like he used to.
44 She describes how he used to love clay target shooting but he cannot really do that now and he might go out occasionally with the children to shoot an air rifle but it is not the same for him as to what he was used to before.
45 She notes that they really did not want to leave Stawell as they had been there for over ten years and had no intention of leaving. It is only when the injuries occurred and her husband did not feel a good chance of getting any further work in the Stawell-Ararat area that they moved to the Kyneton area.
The cross-examination of the Plaintiff
46 The plaintiff accepted that he had driven from Kyneton to Melbourne today.
47 The plaintiff also accepted that it was probable that the last time he consulted with his treating orthopaedic surgeon, Mr Nelson, was on 22 February 2013 and since, has had an MRI scan undertaken on 19 April 2016 arranged by his now treating doctor in Brighton, Dr Lorna Stanely. He thought that the MRI scan may have been brought about by the earlier examination by the medico-legal specialist, Mr Kossmann, who examined the plaintiff on or about 13 October 2015.
48 The plaintiff also confirmed that he suffered a cervical fracture in 1995, together with a right shoulder injury as a result of diving into water. He was hospitalised for a period of time and underwent surgery involving a cervical fusion with a bone graft taken from his hip. When queried as to whether he has been troubled from time to time by symptoms in his right or left arm, be it pain, numbness, paraesthesia or dysfunction following that surgery, the plaintiff replied “not that I recall”.[23]
[23]T22, L7 – 8
49 The plaintiff also confirmed that he commenced employment with the defendant as a grader operator on 6 October 2008 and first noticed symptoms around mid 2011 and continued working until 22 May 2012. In such circumstances, the plaintiff accepted that he was “conscious of symptoms” over a period of about twelve months and that he had no symptoms of that nature prior to then.
50 The plaintiff gave evidence that he first had symptoms in his left elbow, and although he was not precisely sure, he thought it was only a few months later that the symptoms came on in his right elbow.
51 When queried about the operation of the grader, the plaintiff described that the steering wheel, although having power steering, was placed very close to the body and involved repetitive use with the left hand whilst the right hand was on what was referred to as an “articulation lever”.
52 At that stage, Senior Counsel for the defendant showed a video running for about four minutes which involved the use of a grader. The plaintiff accepted that the machine shown in the video was the type of machine that he worked on and he further accepted that both hands were required to operate various knobs in the cabin of the grader.
53 When driving a grader, the plaintiff would commence at 6 o’clock in the morning and finish at 6 o’clock at night or vica versa – depending on what shift he was on. Such twelve-hour shifts would continue for four days and then he would have four days off. The plaintiff considered that allowing for breaks, he would be working for about eleven hours per day.
54 The plaintiff was queried as to whether he had “discovered”, by May 2012, that he was in line with others to receive a “redundancy package”, culminating in him leaving work in early 2013. The plaintiff noted that he received no redundancy payment because he was a casual worker.
55 In particular, the following evidence was given:
Q:“So would you have been back at work if you hadn't been made redundant, after your surgery?‑‑‑
A:No.
Q: Why not?‑‑‑
A:Because Mr Nelson said the operations that he has done to my elbows, he could not repeat them, and he felt that operating machinery would cause that to happen again.
Q:Putting aside the other jobs you did and going directly to your job with Wheelie Waste, you drive a conventional rubbish van?‑‑‑
A:Yeah, rubbish truck.
Q: How many tonne?‑‑‑
A: 10 and a half.
Q:Just like we see collecting our local garbage; that same sort of thing?‑‑‑
A:Correct.
Q: Power steering?‑‑‑
A: Yes.
Q: Automatic gear shift?‑‑‑
A: Automatic, yes.
Q: Does that require you to change gears nevertheless?‑‑‑
A: No.
Q:So once it's in forward motion, it just takes itself through the gears?‑‑‑
A:That’s correct.
Q:It has the side-on hydraulic lift for the bin?‑‑‑
A:Correct.
Q:You had to line up the truck with the hydraulic lift adjacent to the bin. You operate a lever? Or what do you do to lift the bin?‑‑‑
A:Yeah, there’s a joystick on the right-hand side.
Q: Of the steering wheel?‑‑‑
A: Yes.
Q: So you operate that with your right hand?‑‑‑
A: Yes.
Q:You pick up the bin and it deposits its contents into the side of the truck?‑‑‑
A:That’s correct.
Q:Then you operate the mashing machine; I don’t know what you call it, but the piece that crushes the ‑ ‑ ‑?‑‑‑
A:No, that's all done by hydraulics, it’s all operated by a computer.
Q: The computer does it?‑‑‑
A: Yes.
Q: How many bins would you pick up?‑‑‑
A: It varies. Some days, 400, some days, 900.
Q:So you’ve got to do between 400 and 900 of these operations with the right hand, putting the hydraulic lift on the bin?‑‑‑
A:Yes.
Q: What time do you start work?‑‑‑
A: Normally five o’clock.
Q: Usual finishing time?‑‑‑
A: Average, 1 o’clock.
Q: Doing 7 hours nonstop?‑‑‑
A: Yes.
Q: Five days a week?‑‑‑
A: Yes.
Q: No weekend work?‑‑‑
A: No.
Q: You’ve been doing that job for how long now?‑‑‑
A: Almost 2 years.
Q:Putting aside the hours, in terms of the operation of the truck versus of the operation of the grader, what are the significant differences between the two?‑‑‑
A:There’s only one lever ‑ ‑ ‑.”
HIS HONOUR:
Q: “On the?‑‑‑
A:On the truck, compared to – there’s roughly 10 levers plus a gear stick, plus your hand brake, clutch, accelerator, brakes, everything else; on the grader.
Q: On the – the heavy-moving equipment?‑‑‑
A: Yes.
Q:The other thing I just want to ask in relation to the job you're doing now, I understand I think you get the truck to where the bin has to be picked up; I think you describe that there's a lever on your right-hand side which you operate to – my words, not yours, bring the claw down to grab the bin, is that right?‑‑‑
A:That’s right.
Q:Do you have to manoeuvre the stick around to the claws onto the bin, or once you’re opposite the bin, by moving the stick, the claws come down automatically and do the job?‑‑‑
A:I do have to move the joystick. The joystick, an arm – if the bin is too far out, there is an arm that will reach out.
Q:Yes?‑‑‑
A:Before you push a button on the joystick which grabs the bin.
Q:I see?‑‑‑
A:And then you pull the lever back on a 45 degree angle, and will automatically bring the arm back in and then flip the bin up and in.
Q:I see, thank you?‑‑‑
A:And then you push it back down, and it drops the bin down.”[24]
[24]T28, L13 – T30, L18
56 Later, under cross-examination, the plaintiff accepted that both the job as a grader driver and his present employment require bilateral function of the left and right arm.
57 When it was suggested to him that both the job of driving a grader and his present employment are “very similar”, the plaintiff initially distinguished between performing the grader job in darkness and performing his current job in daylight “which makes life easier”.
58 The plaintiff went on to state:
A:“Well, I was going to say, a truck steering wheel is pretty flat in front of you, which your arm is not too bad, the joystick which I have is rested on a comfortable pad which is down here, at a comfortable – whereas the grader ‑ ‑ ‑
HIS HONOUR:
Q:I missed that about the joystick. The joystick on the right side ‑ ‑ ‑?‑‑‑
A:Is on a cushioned pad. So you’re resting ‑ ‑ ‑
Q:So you rest your arm on the pad, do you?‑‑‑
A:That’s correct.
Q:Yes, I see, yes?‑‑‑
A:Whereas the grader, the steering wheel is flat in front of you and the joysticks are up here.
Q:Right.”
MR MIDDLETON:
Q:“(To witness) But we saw in the video that the platform upon which the steering wheel and the joysticks sit is adjustable?‑‑‑
A:Yes.
Q:You can adjust to whatever convenient position you would be best suited by?‑‑‑
A:M’mm. And that was the perfect example of what you would do on the surface in daylight. Nothing compared to underground.”[25]
[25]T31, L13 – 31
59 When it was put to the plaintiff by Senior Counsel for the defendant that “in reality” the function that he was performing with his right and left upper limb in the truck that collects the rubbish and in the grader are “very similar”, the plaintiff responded “I don’t think so”.[26]
[26]T32, L4
60 Furthermore, when it was suggested by Senior Counsel for the defendant that he would be using the lever in the garbage truck 400 or 900 times a day, five days a week, the plaintiff indicated that it is where the levers are situated and in the truck there is a “comfort zone”.
61 The plaintiff expanded on his earlier comment and described his present work activity in the following terms:
A:“It’s more wrist movement, with the joystick now, which obviously still uses muscles but it's when you’ve got a steering wheel in front of you as such and you've got levers up here, it’s like I’m working like this on a grader underground with the steering wheel right against the chest, so I can see with the half-a-dozen lights you’ve got, whereas the truck … .
Q:What do you say though – I like to know at least, in terms of your bilateral elbow condition, is there any difference doing the type of work you did in the – as you do now, in the waste truck, compared to the work you used to do in the mine?‑‑‑
A:Well, it’s obviously still using the muscles. Whether it’s using them as much, I'm not a doctor, I don’t really know.
Q:Can I ask you this: as far as your elbows are concerned, I just want to know what you think, what do you think about your ability to do the job you were doing in the mine, as far as your elbows were concerned?‑‑‑
A:Well, I would never have gone back to it.
Q:You say that, why is that?‑‑‑
A:Because I didn’t want to go through the pain and everything that I went through working on a grader underground was – you know, to get cortisone injections every month to keep going to work, whereas at the moment, I don’t need that.
Q:I just want to get it clear in my mind, so just take your time. In the grader job, you’re describing how, the way you’re doing it, you were getting pain requiring the cortisone which ultimately led to you having the operations as I understand it. What counsel is suggesting to you in the job you’re doing now, obviously you're not driving a grader, you’re driving a ‑ ‑ ‑?‑‑‑
A:A truck.
Q:A waste truck but do you get – what I want to know is, do you get this same degree of pain or what's happening now?‑‑‑
A:It’s the same degree but it is pain; there is – every day.”[27]
[27]T32, L26 – T33, L22
62 When queried after coming back to work and driving the water truck, the plaintiff noted that he had to change gears and there is also steering on the right side and there being a switch on the left which controlled the water spray. He accepted that although that work did not involve such an extensive use of his right and left arm as the grader, it did involve the use of his left arm.
63 The plaintiff confirmed that after the completion of the surgery, he was advised by that surgeon not to perform that type of work.
64 The plaintiff gave evidence that following his left side surgery (the initial surgery), he was happy with the result, although there was still some residual stiffness. He considered that the surgery to the right-hand side in February 2013 was as good as his left arm.
65 The plaintiff confirmed that when he swore his first affidavit in the middle of last year, his left arm was worse than his right, but now having done his present job for a period of time, he considers that his right arm pain is worse.
66 The plaintiff also confirmed that absent his injuries, his intention was to obtain employment with the Stawell Gold Mine. He believed his chances of obtaining such employment would be enhanced with more “tickets” that he could obtain. However, rather than obtaining a job with the Stawell Gold Mine, he obtained employment with the defendant, which was a contractor with the mine. However, every time there was a job going at the Stawell Gold Mine, he would apply for it. He anticipated he would earn more money at the Stawell Gold Mine.
67 The plaintiff confirmed his change of address in Murphy’s Road. The initial address was a property owned by his parents, consisting of 7 acres, and their present property is rented, which also consists of 7 acres. On the present property, there are some sheep – about six – and two lamas, together with some chooks. The initial property owned by his parents had various gum trees, whereas the current property does not. The plaintiff did confirm that when he was at his parents’ property, he bought a petrol-driven splitter. The following evidence was given:
Q:“Can I put to you that you continue to cut wood via the splitter, that is you personally - but the splitter or by chainsaw?‑‑‑
A:I did. I have since stopped.
Q:When did you stop?‑‑‑
A:Earlier this year.
Q:Is that consistent with the fact that you moved or ‑ ‑ ‑?‑‑‑
A:No. The last time I chopped some wood it - yeah. I remember having days off work just because of it.”
HIS HONOUR:
Q:“Just tell me, I wasn't there so I just want to understand this. When do you say you last chopped wood or cut up wood?‑‑‑
A:Two or three months ago.
Q:And you haven’t done it since then?‑‑‑
A:No.
Q:Why have you stopped at that time?‑‑‑
A:I ran the chainsaw for roughly 40 minutes and my son helped me split it with the hydraulic splitter and my right elbow was so painful I went to the doctor and got three days off work.”
MR MIDDLETON:
Q:“It was your right elbow?‑‑‑
A:Well both but the right was the sorest.
… .”[28]
[28]T39, L12 – 28
68 The plaintiff explained that he purchased the petrol-drive hydraulic splitter in 2015 and that it has been used twice since then.
69 The plaintiff confirmed that since undergoing the surgeries to his left and right arm, he has been unable to chop any wood or use the splitter or chainsaw.
70 The plaintiff described that using the chainsaw in the past gave rise to a vibration through his arms which made his elbows very painful. He has used the hydraulic splitter on one occasion, whereas his son has used it on three to four occasions. When he used the hydraulic splitter, it was not even for an hour before he had to cease.
71 The plaintiff confirmed that although he was a member of the Stawell Angling Club, he resigned at some time even before moving to Kyneton. He was not sure when he precisely stopped, but it was in either in 2013 or 2014.
72 The plaintiff described that being a member of the Stawell Angling Club involved fishing on the lakes or rivers. In particular, he described how the Club had roughly twelve runs a year, a fortnight apart, sometimes which required you to fish in the local lake or on other occasions, members were entitled to compete on “open borders”, which meant you could fish at other places, for example attending Portland.
73 The plaintiff had been involved with fishing since moving to Stawell ten years previously and a lot of the fishing was at Lake Fynes which is about 15 kilometres from Stawell on the way to Halls Gap. The plaintiff also confirmed that he sold his “tinny” last year.
74 The plaintiff confirmed that he believed there was a Kyneton Fishing Club but he denied having made any enquiries with that Club. In particular, the following evidence was given:
Q:“You’ve discussed with Mr Nelson what you can or can’t – or might or mightn’t be able to do in respect of the truck that you drive or the grader, did you discuss with him the issue with fishing?‑‑‑
A:I don’t recall.
Q:He doesn’t seem to mention it in his report in any way of significance, if at all. If you say, I presume you do, that fishing is one of your great loves or passions; is it?‑‑‑
A:It used to be, yes.
Q:Why haven’t you gone to your doctor, Mr Nelson, or even your GP, and discussed that aspect of you might be able to do to get yourself back to fishing?‑‑‑
A:Because they way my elbows feel after – I’ve attempted fishing once for a few hours. I could feel, you know, the pain in the elbows – or aggravating the pain, so I left it. And as I said, Dr Nelson said he can’t do the operations again so every time I think I’m doing something, it’s affecting my elbows, I stop it.”
HIS HONOUR:
Q:“Just give me an idea: I’m just not quite clear in my mind, if you can expand on this: the fishing you were doing, you’ve talked about you've had a tinny, so you were out on a lake or something like that; what were the difficulties that you encountered in relation to your elbows when fishing?‑‑‑
A:Well, it was mainly when I was fly fishing, there's a lot of movement in your arms. Bait fishing, yeah, not so bad but ‑ ‑ ‑
Q:Fly fishing, had you done that for a while or is that something ‑ ‑ ‑ ?‑‑‑
A:I’ve been practising – well, I was, up until I stopped finishing, I was still learning.
Q: Still learning?‑‑‑
A: I was, back – yeah. It’s a very – yeah, it takes a bit of skill.
Q: Well, when you say, you’re still learning?‑‑‑
A: Up until I stopped finishing I was ‑ ‑ ‑
Q:No, what I mean, still learning like – I was going to say, a judge might say, ‘You're still learning after five years of being a judge,’ but I won’t say that. What I’m saying is, it's an unfolding process, was it, over time or what?‑‑‑
A:Yes, yes.”[29]
[29]T43, L23 – T44, L28
75 The plaintiff gave evidence that prior to his injury, he went fishing at least twelve times with the runs, and other days you go out looking for bait. Sometimes he would go out fishing with members of the Club. At other times with children. In particular, the following evidence ensued:
Q:What’s stopping you going out with members of the club, your kids or whatever, to fish? I mean, you can’t seriously suggest, if you’re driving a vehicle for 7 hours a day, 5 days a week, operating with the manoeuvres that you’ve described, that baiting a hook and putting a line in the water is something beyond your capacity; are you seriously suggesting that?‑‑‑
A:I do the job I have to do to put food on the table and I go through painkillers. I’m not – I don’t – yes, I could go fishing, but it’s not worth what I cop at the end of the day. Those – the weekends I spend to try and recover my arms so I can get through the next week.
Q:How many times – I thought you said you’d been fishing once since?‑‑‑
A:Only once since I’ve been in Kyneton.”[30]
[30]T45, L6 – 19
76 The plaintiff, on being queried about references to a ski boat in his affidavit, asserted that he was a skier “years ago”. In particular, he accepted that he had not skied for ten years.
77 The plaintiff described his ski boat as an inboard motor ski boat with a custom hull and a V8 engine which was key started. The plaintiff describes that he would take the ski boat out and when his children were learning how to ski, but this is difficult, because when his eldest son was not there, it was particularly difficult pulling the boat out at the end of the day. His boat was sold in about February of 2016.
78 The plaintiff described his experience of “shooting” to be something which he performed once a week before he was married and then about once a month, and when he and his family moved to Stawell, it deteriorated “off a bit” but he still went out probably once a month with some friends “spotlighting or whatnot”.
79 In particular, the following evidence ensued:
Q:“Do you know much about guns?‑‑‑
A:Yes.
Q:What sort of guns did you have for shooting?‑‑‑
A:I had – I could – I had a rifle and also a shotgun. I preferred, depending on what sort of shooting we were doing, it would be – yeah, that’s what you'd – so if it was fox shooting I’d more often take a shotgun, whereas rabbits you’d take a rifle.
Q:Indeed, as far as you’re concerned, I think you’ve said in your affidavit, ‘There would be difficulty in terms of holding a rifle for a prolonged period’. Just spell that out a little bit for me? What do you mean by that?‑‑‑
A:Well just down the road from us there’s what they call the Cobors; very hilly and you'd walk all day around hunting, and it’s carrying a shotgun over a period of time.
Q:Sorry, just spell it out for me what you perceive is – any difficulty you perceive you would have doing that? What do you say would be the difficulty?‑‑‑
A:Just the – I would feel that, even the way my elbows feel as we speak right now, that after carrying a gun all day they'd probably ache even more and I don't want to go – I don’t want to put myself through that.
Q:Yes, thank you.”
MR MIDDLETON:
Q:“(To witness) In those 12 occasions you say you were shooting in Stawell, would you go shooting for a whole day?‑‑‑
A:Yeah.”[31]
[31]T48, L16 – T49, L18
80 The plaintiff accepted that he had not performed clay shooting since before being married and was not performing such activity at the time of the injury. Furthermore, he informed the Court that he had not been camping since moving to Kyneton but had camped a couple of times between the occurrence of the injury and the move to Kyneton. The camping took place at Lake Fynes.
81 Under cross-examination, the plaintiff accepted that he was wearing a brace on his left elbow when he was working the controls of the grader. He also accepted the description by Mr Troy in one of his reports that:
“His elbows are still painful but they are not quite as intense as he is not doing any major heavy work. … .”[32]
[32]See report dated 24 September 2013, exhibit “A”, at page 2 DCB
82 Furthermore, the plaintiff accepted that he has always had full movement of the elbows since surgery. He also accepted that he did his own garden and mowed his lawns back in 2013 and liked to go shooting, again, back in 2013.
83 The plaintiff gave evidence that he takes Voltaren medication daily and sometimes Nurofen. Normally, he would take two Voltaren tablets before he goes to work and probably another two during the period of work. He would take none on the weekend.
84 In relation to his use of Nurofen, that would sometimes alternate with Voltaren, but he tends to find he needs more Nurofen than he does Voltaren. In this sense, Voltaren seems to work better. Whereas he takes about four Voltaren a day, he needs to take about six, up to maybe eight, Nurofen a day.
85 The plaintiff accepted that there have been periods since his surgery that he has not taken any medication for a period of time – particularly immediately after the surgeries. Other than his medication, the plaintiff accepted that he has no other physical therapies.
86 Depending on whether he is picking up bins within a township, he may drive up to 30 to 40 kilometres – however, if he is picking up less bins in a country area, he may drive a bit over 200 kilometres.
87 The plaintiff described how he would drive from Kyneton to Woodend, where the depot is situated, collect his truck and move off from there.
The re-examination of the Plaintiff
88 Under re-examination, the plaintiff clarified that, in general terms, he picks up less bins when travelling greater distances, as the bins are spread out over rural properties. When working in a particular township (for example Kyneton, Woodend, Macedon or Riddles Creek), he would drive far less distance but pick up more bins.
89 Furthermore, the plaintiff was asked to expand on the actions he had to undertake when operating the grader below ground at the mine. The plaintiff stated:
A:“Well, as you can imagine, if you remember seeing the video, there was a lot of windows down around your legs and that is why the steering wheel - underground you have only got X amount of light from the grader to see what that blade is doing so you have got the steel wall close to your chest and you are looking down at your blade, and once you more or less get a bit of a run lined up you can almost leave that steering wheel for a minute while you are using both hands on levers to keep an eye on just the way you are grading the decline. So that is why I - what the video showed is nothing compared with what you are actually doing in darkness. It is set up completely different and I - yeah. I use my left hand when I have to on - I did on the steering because your articulation, when you have got to pull in out of the way out of a truck your articulation is on your right side so in order to get out of the way of a truck coming down a decline you just - you use your left hand for your steering and your right to articulate it, and you can turn a lot sharper and quicker.
Q:When you use the word ‘articulate’ what do you mean by that?‑‑‑
A:From the back of the cab where the engine is on the grader there is a pin and you have got your front of your grader, you have got your steering wheels on, and the back here will articulate - that can articulate as well, to help steer the grader. It is not just your front wheels that are turning the grader, it is the back of the grader as well. You can turn it left or right to help you sort of bend around instead of ‑ ‑ ‑
Q:Like the grader has a joint in it?‑‑‑
A:Yes, yes, exactly. Right in the middle of - behind the cabin and the engine.
Q:That is one of the things you can operate?‑‑‑
A:That is hydraulically operated by a lever on the right hand side.”[33]
[33]T64, L12 – T65, L13
90 The plaintiff estimated that out of a 12-hour shift at the Stawell mine, for at least six to seven hours of that shift, he would be using his left and right hands as he has described earlier in his evidence.
91 Furthermore, when queried as to whether he could work now as a grader operator and what his belief was as to what he could do if offered that job, the plaintiff stated that he would not be able to do the job and he would not take it. When queried as to why not, the plaintiff stated:
“Because I know my elbows are hurting now, but I wouldn’t want them to get as bad to where I’ve got to go back to cortisone, and that's what I'm trying to avoid. It’s just too much movement.”[34]
[34]T66, L8-11
92 The plaintiff was also re-examined about his former involvement with the Stawell Fishing or Angling Club. When asked to give further details about such organisation, he stated:
A:“Well it’s a group of locals, Helen and Charlie Smith were the presidents at the time, or president and treasurer. They acquire a little bit of land out at Lake Fyans through the Ararat water board where we can put vans without having to pay an arm and a leg. It’s not powered sites, it’s just – and they run a – through a small committee, which I was actually on the committee, we decide how many runs we’re going to have and where they’re going to be et cetera, how long the fishing runs last, what time they start and finish et cetera.
Q:I think you used that expression in answer to my friend’s questions, but when you say a run, what does that mean for the ‑ ‑ ‑ ?‑‑‑
A:Well a run means like, it’s a – we’re going to have open waters this Saturday or this weekend. Starting time would be 7 am until say, 10 am Sunday, or sometimes you’d have a small – it might start at 6, 7 o’clock on Saturday and you'd have it finished by 1 o’clock Saturday. … .”[35]
[35]T66, L23 – T67, L9
93 The plaintiff went on to describe how whatever period of time was for a particular run, the person who caught the biggest fish won the prize, as it were.
94 When re-examined about any attempts to chop or split wood, the plaintiff also described that, in relation to the hydraulic wood splitter, it was necessary to lift the wood to be split into a cradle before the operation of the machine. He had difficulty picking up large pieces of wood and, in particular, the following evidence was given:
Q:What sort of trouble would it cause you?‑‑‑
A:Well, just the more I pick up the heavier it is, and it’s just going to aggravate the pain in my elbows.”[36]
[36]T69, L9 - 11
95 The plaintiff also explained that when taking the medication, be it the Voltaren or the Nurofen, he takes his first tablets at about half-past 4 in the morning on the way to work and then again, at about 9 or 10 o’clock in the morning after about four hours or so. If he does actually work beyond about 1 o’clock in the afternoon, he generally takes another tablet but tries to avoid taking any medication when he gets home.
96 When queried about his use of a shotgun or rifle, the plaintiff described that when using a shotgun, that would be mainly used for hunting foxes or rabbits and the like. Furthermore, he described it is not only the weight of carrying the particular shotgun around, it is also the recall on the shotgun, which he described as quite a “heavy shot” which impacts on your shoulder and your arms.
97 The plaintiff accepted that he can drive a motor vehicle and did not have any particular difficulty driving to Melbourne to see a doctor, although he has not driven particularly long distances since his injury.
The medical evidence relied on by the Plaintiff
98 The plaintiff relies on the medical reports of his former general practitioner, Dr Arthur Obi (who is situated in Stawell), dated 5 November 2013 and 9 August 2015.[37]
[37]See exhibit 2 at pages 16 – 17 PCB
99 In the report dated 5 November 2013, Dr Obi confirms the diagnosis to be bilateral lateral epicondylitis. He comments that the plaintiff may not be suitable for pre-injury duties as it is “inadvisable to engage in duties which predisposed him to the problems in the first place”. Furthermore, Dr Obi notes that the injuries restrict his ability to “carry out lifting with twisting movements and using both arms”.
100 Dr Obi considers the plaintiff may continue to require physiotherapy and intralesional steroid injections on an ‘as needed’ basis.
101 In his report dated 9 August 2015, Dr Obi certified that the plaintiff has been treated for the condition of bilateral elbow tendonitis “in the past” by serial intralesional steroid injections which “helped”. Furthermore, he notes that at the time of that report, the current medication of the plaintiff was ibuprofen, 400-milligram tablets three times a day with food.
102 The plaintiff also relies on a report from his current general practitioner, Dr Lorna Stanely (in Kyneton), dated 4 July 2016.[38] In that report, Dr Stanely notes that the plaintiff had moved from Stawell to Kyneton in September 2004 and that he had been under the care of Dr Obi and she did not have a complete history of his condition at that time.
[38]See exhibit 2 at pages 17a – 17b PCB
103 When seen on 29 June 2016, the plaintiff was complaining of elbow pain which began in the right and then developed bilaterally, for which he was given steroid injections for that lateral epicondylitis by his previous general practitioner at Stawell. Dr Stanely also noted that the plaintiff had been referred to the orthopaedic surgeon, Mr Nelson, who had also treated the plaintiff with steroid injections and eventually, surgical treatment bilaterally.
104 When examined on 29 May 2016, the plaintiff complained of bilateral elbow pain which occurs every day and is worse some days than others, and that he has restricted bilateral dorsiflexion of wrists on examination. In particular, Dr Stanely stated:
“His diagnosis is bilateral lateral epicondylitis which at the time was felt to be secondary to repetitive lever actions at work. His job at the time was at Stawell Goldmine operating a grinder which he drove underground.
His prognosis: He has had multiple steroid injections bilaterally for his lateral epicondylitis and also bilateral surgical treatment. At this stage he has likely maximised his rehabilitation potential and would not be expected to improve further. He has persistent bilateral elbow pain maximal in the area of the lateral epicondylitis and restricted bilateral dorsiflexion of the wrists. He has persistent difficulties at home with tasks such as chopping wood and pushing the mower and his son needs to help with same. He reports that he has been advised by his surgeon Mr Nelson that he would be unable to use earthmoving equipment again due to his injuries which were felt to be secondary to repetitive lever actions at work. It is likely that these symptoms will be persistent and that he has maximised his rehabilitation potential. … .”[39]
(my emphasis)
[39]See exhibit 2 at pages 17a – 17b PCB
105 In particular, the plaintiff relies on the report of his treating orthopaedic surgeon, Mr John Nelson, dated 11 September 2013.[40]
[40]See exhibit 2 at pages 13 – 15 PCB
106 Mr Nelson first examined the plaintiff on 6 October 2011 on referral from Dr Obi in order to assess a left elbow problem.
107 The history obtained at that time was that the plaintiff had pain predominantly over the lateral aspect of his left elbow which he thought may have been initiated by some activity at golf but his work involved a lot of repetitive use of his arm as a grader driver.
108 The plaintiff had been treated with one steroid injection which gave him relief for some weeks, after which the pain returned, although somewhat less typical of lateral epicondylitis. The plaintiff commenced to use a brace at work and taking anti-inflammatories, and at times, required the use of Panadeine Forte.
109 Examination at that time revealed acute tenderness over the lateral epicondyle, with pain on positive stretch testing. The elbow had a full range of movement. Mr Nelson initially thought that such condition was probably a lateral epicondylitis and he gave the plaintiff a further injection, changed his anti-inflammatories and recommended that he continue using the forearm strap.
110 The plaintiff next attended Mr Nelson on 21 November 2011, at which time he reported that his left elbow was “feeling very comfortable” but now his right elbow had developed “virtually identical symptoms”, which had been occurring for about four weeks.
111 Examination at that time revealed localised tenderness at the lateral epicondyle which was injected by Mr Nelson with steroid.
112 The plaintiff again attended Mr Nelson on 14 March 2012, at which time Mr Nelson describes the presentation of the plaintiff to be “somewhat agitated and despondent”, in that over the previous two months, he had developed more severe pain in both elbows. Mr Nelson noted the symptoms were “fairly well localised again” and he treated the plaintiff by injecting both elbows.
113 Mr Nelson notes that he was becoming somewhat concerned about the long-term situation for the plaintiff at his work.
114 About a month later, he was seen again with some improvement, but on 5 June 2012, the plaintiff complained of recurrent symptoms and again, he was injected to help the condition. At that stage, Mr Nelson noted the plaintiff had been placed on modified duties.
115 When re-examined in September 2012, the left elbow had deteriorated and ultimately, Mr Nelson notes that he performed surgery on the left elbow on 26 October 2012 and surgery on the right elbow on 22 February 2013.
116 Following the left elbow surgery, Mr Nelson notes that initially, the plaintiff made a good recovery, with some residual stiffness.
117 Mr Nelson notes in his report that whilst seemingly it was his last attendance on 21 October 2013, he was reviewed because of a WorkCover decision, suggesting that the plaintiff was fit to go back to normal duties. Mr Nelson, in his report, states:
“… He [the plaintiff] assumed that this did include repetitive work as he had done previously, and I thought considering his past history this was not at all appropriate.
This man’s case had obviously reached a critical point where returning to his previous work is inappropriate, but the Workcover process is not allowing him to be retrained into an appropriate area.
…
At this stage he is reasonably comfortable providing he doesn’t stress his elbows, but there is no doubt there is a significant risk of recurrence if he is forced into a situation going back to his previous type of activities with repetitive use of his upper limbs.”[41]
[41]See exhibit 2 at pages 14 – 15 PCB
118 The plaintiff was also medico-legally examined by the orthopaedic surgeon, Mr Thomas Kossmann, on or about 13 October 2015.[42]
[42]See exhibit 3 at pages 18 – 24 DCB
119 Mr Kossmann obtained a history that the plaintiff was employed at the goldmine at Stawell and, in particular, was operating a grader, which placed a lot of stress on both elbows when steering the grader, performing the work underground. He commenced to suffer pain in his elbows, particularly on the left, from 2011 onwards, causing him to consult with his general practitioner, Dr Obi, who initially treated him with anti-inflammatories and injection in the left elbow.
120 Ultimately, the plaintiff was referred to the orthopaedic surgeon, Mr Nelson, who initially treated him with injections to both elbows and later, performed surgery to the left and right arms. After the surgery, he continued to work for the defendant, driving water tankers, which were somewhat easier, but was later put off, because there was no modified light duties available for him.
121 Mr Kossmann noted that since early 2014, the plaintiff was initially employed in a window maintenance business but was only able to last a couple of months because of the physically demanding nature of the work. Since October 2014, he has been working as a truck driver with Wheelie Waste. At the time of that examination, the plaintiff was complaining of pain in his right elbow and the more he does with the elbow, the greater the pain.
122 Mr Kossmann made a physical examination of the plaintiff and ultimately, made the following diagnoses:
(i) Bilateral epicondylitis lateralis (tennis elbow with symptoms in the right side);
(ii) Sulcus ulnaris syndrome right side;
(iii) Movement restrictions both wrists with reduced dorsal extension;
(iv) Clinical signs of radiculopathy possibly related to degenerative changes in the cervical spine.
123 Ultimately, Mr Kossmann stated:
“Mr Wilson was working as operator of a grader in an underground goldmine in Stawell. He developed a bilateral epicondylitis, for which he was treated initially conservatively with steroid injections before undergoing release of the extensor tendons. … He continues to suffer from symptoms in the right side in particular. He has meanwhile developed clinical signs of a radiculopathy on the right side and has a positive sulcus ulnaris syndrome on the right side with electric shock-like symptoms, which radiate in the fourth and fifth fingers. These symptoms have had an impact not only on his employment but also his social, domestic and recreational activities.”[43]
[43]See exhibit 3 at page 21 DCB
124 Mr Kossmann was of the opinion that the plaintiff’s prognosis was “guarded” and he considered that the plaintiff will most probably need ongoing treatment with pain medication, anti-inflammatories and also possibly further steroid injections for his elbow condition.
125 Mr Kossmann considered the plaintiff should undergo further investigation in relation to what he considered to be a sulcus ulnaris syndrome on the right side, together with clinical signs of radiculopathy. He considered the plaintiff capable of performing his present employment, although “time will tell” how long he can continue to work on a full-time basis and he may have to reduce his hours in the future.
126 Perhaps because of the issues raised by Mr Kossmann, the plaintiff’s present treating general practitioner, Dr Stanely, arranged for the plaintiff to undergo an MRI scan of his cervical spine on 19 April 2016. The report of such scan revealed the presence of the metalware in relation to the previous fusion in the cervical spine, together with some minor degenerative disc changes and some spurring on the right side with foraminal stenosis.
Medico-legal reports relied on by the Defendant
127 The defendant relies on the following medico-legal reports:
(a) Reports of the general surgeon, Mr Michael J Troy, who examined the plaintiff on 19 September 2013[44] and on 15 July 2016;[45]
(b) The report of the general surgeon, Associate Professor Anthony J Buzzard, who examined the plaintiff on 12 November 2014.[46]
[44]See report dated 24 September 2013, exhibit “A”, at pages 1 – 5 DCB
[45]See report dated 16 July 2016, exhibit “A”, at pages 6 – 10 DCB
[46]See report dated 18 November 2014, exhibit “A”, at pages 11 – 15 DCB
128 When Mr Troy initially examined the plaintiff, he was looking for work and, at that time, was not taking any particular medication or wearing any braces.
129 After obtaining a history and making the examination, Mr Troy made a diagnosis of right and left lateral epicondylitis, which was caused by the management of the controls on the grader that he was operating in the underground goldmine. At that time, Mr Troy considered that the plaintiff could return to pre-injury duties as there were no symptoms of the right elbow and minimal symptoms in the left elbow. There was no loss of function.
130 However, when more recently seen on 15 July 2016, Mr Troy obtained a history that the plaintiff was suffering constant pain on the lateral side of his elbows, although when not using the elbows, the pain was not as bad. Mr Troy obtained a history that the plaintiff was then working for Wheelie Waste and that when he does perform this work, his right elbow is particularly painful, as his right arm involves the use of the joystick. At the examination, the plaintiff described his right elbow pain as more intense than the left elbow pain and that such pain “is as intense as it was pre-operatively when Mr Nelson operated on [me] in 2012 and 2013”.[47] The plaintiff described that he has always had full movements of his elbows and he can grip, and that his neck does not give him any concern.
[47]See report dated 24 September 2013, exhibit “A”, at pages 7 – 8 DCB
131 Mr Troy also obtained a history that the plaintiff always wears a brace on his right elbow, takes Voltaren daily and adds Nurofen, sometimes, to that.
132 Examination of both elbows revealed, consistent with the history of the plaintiff, that he had full flexion and extension of the elbow, as well as pronation and supination of each elbow. However, the provocation test on each elbow was positive for lateral epicondylitis and, indeed, was extremely painful in relation to the right lateral elbow.
133 Again, Mr Troy made a diagnosis of bilateral epicondylitis, with the right more severe than the left. Mr Troy also records that the plaintiff considered his symptoms are now as intense as they ever were and do not allow him to comfortably do such things as chop wood, or push a lawnmower. In particular, the plaintiff told Mr Troy that he drives the truck for Wheelie Waste as he has “bills to pay”.[48]
[48]See report dated 24 September 2013, exhibit “A”, at pages 10 DCB
134 When examined by Associate Professor Buzzard on 12 November 2014, some twenty months ago, after obtaining a history and making examination, Associate Professor Buzzard considered that the plaintiff did suffer from bilateral epicondylitis of the elbow, and that given the nature of his work with the defendant, such condition was “caused” by the nature of his work.
135 Those acting for the defendant tendered a Certificate of Opinion of a Medical Panel dated 10 March 2015.[49] The doctors consisting of the Medical Panel were the rheumatologist, Dr Roy Karna, and the orthopaedic surgeon, Mr Keith Elsner.
[49]See exhibit “B”
136 The questions posed and answers thereto set out in the Certificate of Opinion were as follows:
“Question (i) – What is the worker’s degree of impairment whole person impairment resulting from the accepted injury/s as assessed in accordance with s91 of the Accident Compensation Act 1985 and is the impairment permanent?
Answer: In the Panel’s opinion the worker has a 2 per cent whole person impairment resulting from the accepted bilateral epicondylitis injury when assessed in accordance with s91 of the Act. The degree of impairment is permanent.
Question (ii) – Does the worker have an accepted injury which has resulted in a total loss injury mentioned in the Table in s98E(1) of the Accident Compensation Act 1985?
Answer: No.”
Conclusion
137 There is no issue that the plaintiff suffered, and continues to suffer, the condition of lateral epicondylitis at each elbow, and that condition arose out of, or in the course of, his employment with the defendant.[50] When queried as to whether the defendant accepted that the compensable injury has given rise to some impairment of the left and right arm, the Court was informed that the defendant relies on the Medical Panel’s Answers as set out in exhibit “B” – that is to say, one per cent permanent impairment for each arm.[51]
[50]T8, L17 – 25
[51]See T9, L11 – 17
138 Of course, the Medical Panel decision is some evidence that the plaintiff has suffered a compensable injury and has a degree of permanent impairment in each arm. However, the impairment guides are fundamentally based on demonstrable restriction of movement of an affected limb or part of the body. Indeed, such impairment does not assess any pain associated in the elbow and how that pain may cause restrictions in a variety of activities.
139 Senior Counsel for the defendant agreed that the “nub” of the application was whether or not any organic consequences from any impairment of the left and/or the right arm satisfy the so-called narrative test.[52]
[52]T9, 19 – 24
140 As I have already recorded, those acting for the defendant submit that each arm has to be assessed independently and that neither the injuries to the left and right arms nor the impairments in the left and right arms can be aggregated.
141 Before proceeding to make various findings of fact, it is apposite to make some comment on the credibility of the plaintiff. Having had the advantage of observing the witness give evidence and be cross-examined, I formed the view that the plaintiff was a very straightforward witness and at all times was attempting to give accurate answers to the various questions posed by his own counsel and, more particularly, Senior Counsel for the defendant when cross-examining. In particular, I consider there was no embellishment of his symptoms – for example the plaintiff freely accepted both under cross-examination and in the history to Mr Troy, that there was no restriction on the movement of his elbows, rather it was the degree of pain that he suffers when the elbows are engaged.
142 I was also impressed by the plaintiff’s desire to obtain suitable employment after the cessation of his employment with the defendant, and undergoing surgery on his left epicondyle on 26 October 2012 and surgery on his right epicondyle on 22 February 2013.
143 The plaintiff asserted, and I accept, that in early 2014, he ultimately found a job in Geelong with Southern Star Windows, which required him to travel from Stawell to Geelong for the week, staying there with his friend over the working week before coming back to Stawell at the weekend.
144 When that job was found to be unsuitable, he asserts, and I accept, that he applied for his present employment with Wheelie West in or about October 2014, with such job being found on the internet. Although he accepts his present job is easier than driving the grader with the defendant, he does continue to experience pain during the course of his work – particularly in the right arm – and as he describes, both in his evidence and to Mr Troy, he continues such work to be able to put food on the table for his family.
145 I make the following findings of fact:
(a) The plaintiff is a right-handed man who, on leaving school at the end of Year 11, has performed what he describes as “hands-on” type of work involving working in abattoirs, working as a diamond driller and also performing handyman work;
(b) On or about 6 October 2008, he commenced employment with the defendant as a grader operator, working in an underground mine in Stawell. He worked 12-hour shifts for four days and then would have four days off and allowing for breaks, he would be working about 11 hours per day;
(c) To operate the grader, it was necessary to have the steering wheel (which was adjustable) held close to his chest to make steering the grader manageable. There was a significant amount of turning involved in negotiating the grader within the mine at night, with frequent tight turns which required rapid and repetitive turning of the steering wheel using his left hand. There were also approximately ten levers plus a gearstick, hand break, clutch, accelerator and brakes on the grader which have to be operated. The plaintiff, although accepting that the short video film was either the grader or a grader similar to which he operated, he stressed that it was necessary to see the operation of the grader when in darkened circumstances and the amount of turning involved;
(d) The plaintiff commenced to experience pain in his elbows, initially on the left, in or about 2011 but subsequently, also in the right elbow. During that employment, he consulted his then general practitioner, Dr Obi, who treated with anti-inflammatories and injections to the left elbow;
(e) He was referred to the orthopaedic surgeon, Mr John Nelson, who he first consulted on 6 October 2011 when he was injected with steroids in the left elbow, and over the period of time up until 27 May 2012 when he ceased work, he was injected with steroids to both elbows by Mr Nelson on 21 November 2011, 14 March 2012 and 5 June 2012;
(f) On ceasing work on 27 May 2012, the plaintiff lodged a Claim for Compensation on 18 June 2012 which was accepted. In about July 2012, he resumed employment with the defendant on “modified duties” which involved driving water tankers underground instead of the graders. He did this work for about six months and although it was a “little bit easier”, his elbows were still painful when driving the underground water tankers;
(g) On 26 October 2012, Mr Nelson performed a left lateral epicondylitis release and on 22 February 2013, performed a right lateral epicondylitis release. Following such surgeries, the plaintiff improved, although there was some residual stiffness;
(h) Mr Nelson last saw the plaintiff on 21 October 2013, at which time it was suggested by the Victorian WorkCover Authority that the plaintiff could go back to normal duties. Mr Nelson opined at that time, and I accept such opinion, that going back to the type of repetitive work he was performing on the grader would be “not at all appropriate”. I also accept the evidence of the plaintiff that he was told by Mr Nelson from a surgical point of view that there is “nothing further he can do for me”;
(i) As I have already recorded, I accept that the plaintiff obtained work in Geelong in early 2014 with a window maintenance business called Southern Star Windows. Such job required him to travel from Stawell to Geelong and remain there for the working week, after which he would return home to Stawell. Such job only lasted a few months and thereafter, he obtained employment with his present employer, “Wheelie Waste” in or about October 2014, where he remains. Such employment involves driving rubbish trucks and picking up domestic Wheelie bins. In particular, I find:
(i) that his present truck is a 10.5-tonne truck with power steering and an automatic gearshift that does not require him to change gears;
(ii) on the side of the truck is an hydraulic lift to pick up the rubbish bin and empty it in the rubbish truck. The hydraulic lift is operated by a “joystick” on the right-hand-side of the driving wheel and he rests his right arm in a cushion pad when operating such joystick;
(iii) when the bin is picked up, it tips into the side of the truck, after which the rubbish is mashed, performed by various hydraulics, all of which is operated by a computer;
(iv) it varies how many bins he would pick up on any one day. Some days 400 and some days 900, which on each occasion would require the operation of the hydraulic lift (depending on whether he was working in a rural city where the bins were outside houses and more had to be collected, or whether he was working in a rural area where the bins were some distance apart);
(vii) he normally starts at 5 o’clock and finishes on average at 1 o’clock, doing about seven hours’ work non-stop, five days a week;
(viii) the steering wheel of the rubbish truck is pretty flat in front of him which makes the turning of it easier (compared to the grader);
(ix) as already recorded, the plaintiff wears a “brace” on his right elbow when working;
(j) I accept the evidence of the plaintiff that his present employment does cause particularly severe pain in his right elbow, although there is ongoing pain in his left elbow, but overall, driving the truck does not cause the same degree of problems with his left and right elbows, as in the grader, and that he could never return to such work.
(k) I do accept what he asserted several times, that to return to such work as he was doing with the defendant (operating the grader) would cause a dramatic increase in his pain in his elbows, causing him to have further cortisone (which he hopes to avoid) and also being aware what Mr Nelson told him, that there could be no further surgery;
(l) I also accept that as a result of his bilateral elbow condition, he has restrictions in “most of his day-to-day activities” but in particular, I refer to:
(i) whereas prior to his elbow injuries he would regularly go out and chop wood, but had had difficulty trying to perform this type of activity, particularly with a chainsaw and splitter, which caused his elbows to become particularly painful;
(ii) that he was “mad keen” on fishing prior to his injury, was a member of the fishing club at Stawell (where he was a committee man) and owned a “tinny”. The difficulties with his elbows, particularly when he performed fly fishing, gave rise to painful symptoms and he ultimately sold the “tinny” early in 2015. Prior to that, it was used quite frequently. The plaintiff noted that he really misses fishing as it was also a social outlet when he mixed with friends;
(iv) the plaintiff asserted, and I accept, that he had been involved with “shooting” for some period of time. He described that such activity was performed about once a week before he was married and then about once a month after he was married. When he and his family moved to Stawell it deteriorated “off a bit” but he still went out probably once a month with some friends “spotlighting or whatnot”. He owned both a rifle and a shotgun – the shotgun used for fox shooting whereas the rifle used for rabbit shooting. In particular, the plaintiff gave evidence that he would have difficulty holding a rifle for any period of time given the state of his elbow and this activity has dropped off;
(v) whereas he had an inboard motor ski boat which he would take out when his children were learning to ski, such boat was sold in February 2016 as his elder son was no longer there and could not assist in bringing the boat up. In his son’s absence, he suffered pain in the elbows when attempting such tasks;
(vi) where prior to his left and right elbow injuries, he was always “a bit of a handyman” around the house, and was able to renovate three houses before they moved to Stawell and the house that they moved into in Stawell before moving to Kyneton, he asserts, and I accept, “that there is no way that I would be able to perform renovation type work because of my elbow pain now”. In particular, he referred to the use of such tools as hammers and screwdrivers, and furthermore, restricted in terms of carrying and handling heavy weights;
(vii) he is restricted in terms of gardening and mowing lawns. In particular, he finds it very difficult in terms of trimming hedges and in respect of those activities, he has help from his son;
(m) The plaintiff asserts, and I accept, that he has constant and ongoing pain in his left and right elbows which is made worse with any activity involving the elbows, whether it be through any recreational, domestic, or work activity;
(n) The plaintiff asserts, and I accept, that he takes two Voltaren tablets before he goes to work and probably another two tablets during the period of work. He does not take any tablets on the weekend. Sometimes he would alternate Voltaren with Nurofen but he tends to find he needs more Nurofen than he does Voltaren – in this sense, whereas he takes about four Voltaren a day, he needs to take about six or up to eight tablets of Nurofen a day. The plaintiff accepted that he did not take medication for a period of time, particularly immediately after the surgery to the left and right elbows. He further accepted that other than this medication, he has had no other physical therapy.
146 After consideration of all of the evidence, I do find that the epicondylitis suffered by the plaintiff in his right elbow has caused some permanent impairment of his right arm, with various organic consequences and, similarly, I find that the epicondylitis suffered by the plaintiff in his left elbow has caused some degree of permanent impairment in his left arm, with various organic consequences. Although I did not understand the defendant to be submitting that there was no permanent condition in each arm, I have formed such view for the following reasons:
(a) The plaintiff has now suffered epicondylitis in his left and right elbows from 2012 and has been treated with cortisone injection and surgery to both elbows. Notwithstanding, the condition persists and no doctor has suggested that the condition is going to “go away”;
(b) Indeed, I accept the opinion of the present treating general practitioner when she states:
“He has had multiple steroid injections bilaterally for his lateral epicondylitis and also bilateral surgical treatment. At this stage he has likely maximised his rehabilitation potential and would not be expected to improve further. He has persistent bilateral elbow pain maximal in the area of the lateral epicondylitis and restricted bilateral dorsiflexion of the wrists. He has persistent difficulties at home with tasks such as chopping wood and pushing the mower and his son needs to help with same. He reports that he has been advised by his surgeon Mr Nelson that he would be unable to use earthmoving equipment again due to his injuries which were felt to be secondary to repetitive lever actions at work. It is likely that these symptoms will be persistent and that he has maximised his rehabilitation potential. … .”[53]
[53]See exhibit 2 at pages 17a – 17b PCB
147 Having made such findings, I turn to the issue as to whether each arm independently has to be assessed as to whether or not the organic consequences of such impairment are “serious” (as advocated by the defendant); or alternatively, that bilateral impairments in the arms should be treated as a single impairment of the body function of manual dexterity.
148 I refer to the Court of Appeal decision of To Ha Lu v Mediterranean Shoes Pty Ltd & Ors,[54] which involved an appeal from a refusal by a County Court judge to grant leave to the worker, pursuant to s135A(4)(b) of the Act, to bring an action for damages in respect of “injuries” the worker claims he suffered “on or about 18 September 1995”. Although that appeal involved s135A of the Act, there would appear to be no good reason why the propositions enunciated in that decision do not apply to s134AB of the Act.
[54]Op cit
149 Before the Court, the worker alleged that the injuries were a “serious injury” within the meaning of paragraph (a) of the definition of that term in s135A(19) of the Act.[55]
[55]For present purposes the definition referred to involves organic impairment with organic consequences
150 The worker had been employed by Mediterranean Shoes Pty Ltd from October 1990 in an unskilled capacity, and during the course of such employment, experienced the following “injuries”:
(i) in or about July or August 1995, he began experiencing pain in the outer side of his right elbow and just above. He continued to work, and on 4 September 1995, when he was performing his duties, he was struck by a mould weighing approximately 2 kilograms, striking him on the right shoulder. The worker made a claim, although the claim form only referred to his elbow injury and made no mention of the right shoulder aspect. The claim was accepted and ultimately, it was also accepted that the worker had sustained a permanent impairment of his neck and “right upper limb” for compensation under the Act;
(ii) on returning to work in August 1996, he ceased after one-and-a-half weeks, claiming difficulties, and then resumed work in March 1997 but was told to stop work after two weeks by his doctor. At that time, he was experiencing pain on the outer side of his right elbow, radiating up to his upper arm and down into his forearm and he also had pain in his right shoulder and right side of the centre of his neck.
Although not entirely clear, the Court of Appeal considered that, at first instance, the worker contended that the injury to his right shoulder, taken alone, was a “serious injury” as it caused a serious long-term impairment of a body function, namely the worker’s right arm;
(iii)Alternatively, even though each of the elbow injury and the shoulder injury was not, by itself, a “serious injury”, in combination they produce such an injury, in that they caused a serious long-term impairment of a body function, namely his right arm; and
(iv)In the further alternative, the shoulder injury aggravated the pre-existing injury and it was the aggravation that was the “serious injury”.
151 It was common ground, both in the County Court and before the Court of Appeal, that the elbow injury, taken alone, was not a “serious injury”. At first instance, the judge rejected the submission that the shoulder injury, taken alone, was a “serious injury”. Furthermore, the judge at first instance held that the worker could not relevantly aggregate the two injuries and therefore claim that he suffered a “serious injury”. He also concluded that the shoulder injury did not aggravate the pre-existing right elbow injury so as to make the aggravation itself a “serious one”.
152 At the Court of Appeal, counsel for the worker challenged the correctness of the decision at first instance in two ways:
(a) Even if each of the two injuries was not a “serious injury”, the judge at first instance erred in not aggregating them for the purpose of determining whether, in combination, they caused a serious long-term impairment of the worker’s right arm. In this sense, it was submitted that the two injuries caused an impairment of the one body function, namely, the worker’s right arm, and gave rise to one cause of action. They submitted that they should have been considered together in order to determine the extent of the impairment flowing from them.
In dealing with this argument, Chernov JA delivered the major judgment (with which Winneke P and Buchanan JA substantially agreed). In determining whether the judge at first instance erred in not relevantly combining the two injuries to determine whether the worker’s “injury” was a “serious injury” for the purpose of s135A(6) of the Act, Chernov JA stated:
“In my view, the short answer to Mr Bingeman’s principal submission is that the two injuries in question impaired two separate body functions, namely, the plaintiff’s right shoulder area and his right elbow respectively. Consequently, they cannot be relevantly aggregated. The mere fact that those injuries had, in one sense, an effect on the movement of his right arm does not mean that the arm was the relevant body function. A body function that is indirectly, albeit detrimentally, affected by two separate injuries to two body functions, is ordinarily not thereby relevantly impaired by those injuries for the purpose of s 135A(19)(a). … .”[56]
[56]Lu v Mediterranean Shoes Pty Ltd (op cit) at paragraph [23]
Later in his judgment, Chernov JA stated:
“No relevant difficulty arises where leave is sought in respect of one workplace injury which is said to have arisen out of one incident, causing impairment to the one body function. In those circumstances, the applicant must demonstrate that that injury is a ‘serious’ one. But where leave is sought in respect of two or more workplace injuries, whether the applicant must establish that each is a ‘serious injury’ or whether they can be looked at together to see if, in combination, they satisfy the requirement of the definition will depend on whether they all affect the one body function and on whether they arise out of the same relevant incident.
Mr Bingeman accepted, correctly I think, in view of what was said by the majority in Humphries v Poljak on this issue,[57] that it is not permissible in a multi-injury case to look at a number of impairments resulting from the injuries, not any one of which is a serious and long-term impairment, and see if, together, they constitute an impairment which is serious and long term. Thus, if several workplace injuries have caused impairments to several body functions, those impairments cannot be relevantly aggregated. But where the injuries impair the one body function and have arisen out of the one incident they may be relevantly aggregated for the purpose of determining if the impairment of that body function is serious and long term. … But no such aggregation is permissible if the non ‘serious injuries’ which impair the one body function have been caused by separate and unrelated incidents. In those circumstances, each such injury, and the impairment to, or loss of, the body function (if any) it causes, must be considered separately. … .”[58]
[57]Humphries v Poljak [1992] 2 VR 129 at 130
[58]Lu v Mediterranean Shoes Pty Ltd (op cit) at paragraphs [26] – [27]
(b) Again, later, in answer to further submissions put by Mr Bingeman based on the majority in Humphries & Anor v Poljak[59] that two injuries can be relevantly aggregated, Chernov JA stated:
[59]Op cit
“It is true that, in the context of determining if a body function has been relevantly impaired, their Honours said that the impairment may have been caused by ‘two or more injuries acting together to cause such impairment …’. But that was said in the context of the injuries having arisen from the one incident and there is nothing in their Honours’ reasons from which it could be inferred that they intended to extend what they said to injuries that have arisen from two or more discrete incidents. To the contrary, in my view, their Honours intended such aggregation to be limited to injuries that impair the one body function and which have arisen from the one incident. … .”[60]
[60]Lu v Mediterranean Shoes Pty Ltd (op cit) at paragraph [29]
It is also to be noted that Buchanan JA also stated:
“I think that the identification of a body function for the purpose of determining the application of para (a) of the definition of ‘serious injury’ in s 135A(19) of the Accident Compensation Act 1985 depends only upon the existence of impairment or loss of a physical function, and the definition is not limited to the function of that part of the body directly affected by an injury. … .”[61]
[61]Lu v Mediterranean Shoes Pty Ltd (op cit) at paragraph [3]
153 I also refer to the decision of Lakic v GB Galvanizing Service Pty Ltd & Anor,[62] wherein Judge Gebhardt at first instance accepted bilateral hand/wrist injuries amounted to a single body function and granted serious injury leave for an unskilled process worker involved in repetitive work. Such matter was appealed to the Court of Appeal and, on 22 February 2001, in dismissing the leave to appeal application, the Court of Appeal stated (with no further comment):
“We have considered that his Honour’s conclusion that the respondent had suffered a serious injury is not … with sufficient doubt to warrant the grant of leave.”
[62](Unreported) VCC, 23 November 2001, No 2000 of 05195
154 Indeed, a perusal of various decisions in the County Court would suggest that workers suffering a bilateral carpal tunnel syndrome are to be assessed on the basis that there was one impairment to the body function of manual dexterity.[63]
[63]See for example Baltruschaitis v G & K O’Connor Pty Ltd (unreported, VCC, 16 May 2001, per Judge Duggan)
155 I also refer to the leading decision of Grech v Orica Australia Pty Ltd & Anor[64] which also involved bilateral carpal tunnel syndrome. The case largely concerned the proper approach in determining a serious injury where a condition of carpal tunnel syndrome traversed 20 October 1999 – the date for which injuries occurring on or after that date are referable to s134AB of the Act. However, in that decision, Ashley JA (delivering the major judgment of the Court), stated:
“There were, I have concluded, a number of errors in the judge’s consideration of the plaintiff’s application. I think it very probable that a finding should have been made, on consideration of all the evidence, and applying principle correctly, that the plaintiff suffered identifiable compensable injury to his wrists and hands on and after 20 October 1999 which resulted in or materially contributed to the consequences which the plaintiff claimed constituted serious injury. Whether those consequences amounted to serious injury was a matter which a County Court judge experienced in this area of work was well-fitted to determine.”[65]
[64](2006) 14 VR 602
[65]See Grech (op cit) at paragraph [79]
156 There have been a variety of cases decided in the County Court where bilateral shoulder conditions and other bilateral injuries to the arms have been treated as an impairment of one body function – generally manual dexterity.[66]
[66]See Jurukouski v Windsor Caravans Pty Ltd [2015] VCC 1800 per Judge Jordan (bilateral shoulders); Ristovska v VOA WebCo Pty Ltd [2010] VCC 152 per Judge K L Bourke (bilateral carpal tunnel syndrome and bilateral epicondylitis); Wright v Mount Edisar Pty Ltd [2006] VCC 410 per Judge Anderson (bilateral wrists); Giuliano v Red Robin Pty Ltd & Anor [2008] VCC 1805 per Judge Misso (bilateral hands); Nguyen v Aisin Australia Pty Ltd [2012] VCC 799 per Judge Kings (bilateral shoulders); Cartes v Silcraft Pty Ltd [2011] VCC 1502 per Judge Carmody (bilateral shoulders).
157 I consider that it must be borne in mind that, consistent with the plaintiff’s evidence that his work experience involved “hands on” employment, and his employment with the defendant – to wit, the operation of the grader – involved manual dexterity involving the use of both arms. Furthermore, clearly enough, the symptoms of epicondylitis emerged over the course of performing that type of work.
158 As I have highlighted in Lu, the impairment or loss of a body function is not limited to the function of that part of the body directly affected by an injury. Furthermore, two or more workplace injuries can be looked at together in combination if they affect the one body function and they arise out of the same relevant incident.
159 In the circumstances of this matter, I do consider that the injuries to the left and right arm do arise out of the one incident – that is the driving of the grader – and furthermore, such injuries affect the one body function of manual dexterity which has been impaired by such injuries. Accordingly, I do find, and accept, that the plaintiff can rely on his bilateral arm condition to allege that he has impairment of the body function of manual dexterity. The fundamental issue raised by the defendant is whether the consequences of any impairment satisfy the narrative test.
160 As I have already recorded, the question of whether an “injury and resulting impairment” satisfies the narrative test is largely a question of impression or value judgment. As stated by Maxwell P in Haden Engineering Pty Ltd v McKinnon:[67]
“As has often been said, the serious injury test is couched in the language of impression. ‘Elements of fact, degree and value judgment are involved.’ … .”
[67](2010) 31 VR 1 at paragraph [3]
161 I am assisted by a series of Court of Appeal decisions setting out various matters which can help determine the value judgment made by the Court.
162 The plaintiff is presently employed by “Wheelie Waste” on a full-time basis. In Sumbul v Melbourne All Toya Wreckers Pty Ltd,[68] Chernov JA stated, at paragraph [24]:
“If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are ‘at least very considerable’.”
[68][2006] VSCA 292
163 Subsequently, such view was moderated in Stijepic v One Force Group Aust Pty Ltd,[69] wherein Ashley JA and Beach AJA (as he was then), stated, at paragraph [47]:
“So far as the respondents’ final submission is concerned, it is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered. … .”
[69][2009] VSCA 181
164 Later, in Haden Engineering Pty Ltd v McKinnon,[70] Maxwell P stated, at paragraph [15]:
“It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed ha[s] been closed off to [him or her]’.”
[70]Op cit
165 Furthermore, in Haden Engineering v McKinnon, Maxwell P directed that courts are to analyse the evidence to identify separately the plaintiff’s experience of pain and the disabling effect of pain. The court must then assess the combined effect of these two forms of pain and suffering for the purposes of the test for serious injury.
166 Several matters are relevant when assessing the plaintiff’s pain and suffering, including:
(a) What the plaintiff says about the pain in court and to doctors;
(b)What the plaintiff does about the pain (for example medication, rest, et cetera);
(c) What doctors say about the extent and intensity of the pain;
(d)What the objective evidence shows about the disabling effect of the pain.[71]
[71]See Haden Engineering Pty Ltd v McKinnon (op cit) at paragraph [11]
167 In identifying the extent to which the pain limits any of the plaintiff’s physical functioning, and interferes with his enjoyment of life, it must be also be borne in mind what was stated in Dwyer & Calco Timbers Pty Ltd (No 2),[72] wherein, at paragraph [27], Ashley JA stated:
“It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”
[72][2008] VSCA 260
168 As I have already recorded, I found the plaintiff to be a creditworthy witness and I accept what he asserts in relation to his experience of pain impacting on his work activities and his social, recreational and domestic activities.
169 In his submissions, Senior Counsel for the defendant referred to various matters:
(a) Initially he referred to the Court of Appeal decision of Tatiara Meat Co Pty Ltd v Kelso,[73] and in particular paragraph [46]:
[73][2010] VSCA 12
“Whilst complaint of pain, even repeated many times, does not establish the veracity of the complaint, I consider that the evidence overall supports a finding that the respondent suffers constant pain which varies in severity. It is more likely than not that Mr Kelso usually experiences mild pain or discomfort only, but that his pain increases in severity on exposure to cold or at the end of a days’ work. He takes Nurofen when his pain is more severe. I think it unlikely that Mr Kelso suffers severe pain on a regular basis.”
Senior Counsel for the defendant noted that the employer succeeded on the appeal and Kelso failed in his application for serious injury. Senior Counsel noted that there are “lots of parallels here with this plaintiff”;
(b) Counsel also referred to the Court of Appeal decision, Haden Engineering Pty Ltd v McKinnon,[74] and in particular to paragraphs [11] and [16]. Paragraph [11] I have already referred to and paragraph [16] states:
[74]Op cit
“Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s:
• sleep;
• mobility;
• cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
• capacity for self-care and self-management;
• performance of household and family duties;
• recreational activities;
• social activities;
• sexual life; and
• enjoyment of life.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.”
(c) Senior Counsel for the defendant also referred to the Court of Appeal decision, Sabo v George Weston Foods[75] and in particular, at paragraph [73], wherein it is stated:
[75][2009] VSCA 242
“In considering whether Mr Sabo[’s] impairment is ‘at least very considerable’ weight must be given to the adverb ‘very’. As Callaway JA said in TAC v Dennis:
‘Many [impairments] are considerable, in the sense that they are important or substantial, without being very considerable.’”
Senior Counsel for the defendant commented that such comment was “really the nub of it”, which I took to mean that although the defendant accepted there were some consequences from some impairment, they did not satisfy the narrative test;
(d) Senior Counsel also submitted that the plaintiff’s present job involving driving the truck five days a week doing the various pick-ups which I have made findings on is instructive in determining how much the bilateral epicondylitis affects him. When queried by the Court as to why the plaintiff should not be accepted as a witness of credit in relation to his complaints, Senior Counsel submitted it was not so much anything the plaintiff said, but more particularly, the fact that he was able to drive the rubbish truck in the way he has described, and, to the extent that he has any symptoms in his elbows, he has done nothing about it since surgery other than taking over-the-counter medication.
170 After a consideration of all of the evidence, I have come to the view that the plaintiff has established that his impairment of the body function of manual dexterity, when judged by a comparison with other cases in the range of possible impairments or losses of body function, may be fairly described as being “more than significant or marked, and as being at least very considerable”.
171 I have come to such view for the following reasons:
(a) I accept that the plaintiff has constant pain in his elbows which is made significantly worse when the elbows are engaged in any work, social, domestic or recreational activity. Because of this, I accept his evidence that he either does not engage in a variety of activities such as fishing, shooting, household activities and the like which causes added pain in his elbows. In particular, I consider that his inability to fish as he did prior to such injuries has had a significant impact on his enjoyment of life;
(b) Although I do not consider that any one particular act amounts to a consequence which is “serious”, I do consider that when one views the consequences affecting the plaintiff in his working, social, recreational and domestic activities, I have formed the view that the plaintiff satisfies the narrative test.
It must be borne in mind that the most recent doctor to examine the plaintiff on behalf of the defendant was Mr Troy, who made a clear-cut diagnosis of bilateral epicondylitis and, in particular, demonstrated by the positive provocation test exhibited on testing. Furthermore, Mr Troy gets a clear history that the plaintiff suffers intense symptoms in both elbows which, in turn, impact on many day-to-day activities. There is no suggestion by Mr Troy that such complaints are exaggerated or, indeed, are to be discounted in any way, and are consistent with the opinion expressed by the current general practitioner, Dr Lorna Stanely, to which I have already referred.
I do find that there is a material difference between the operation of the grader (when the plaintiff was employed by the defendant) and the present driving of the rubbish truck. The plaintiff was adamant that he could not return to operating the grader, knowing that if he did perform such work, there would be a significant increase in the pain symptoms which may well require further cortisone injection. Furthermore, he appreciated, from what he had been told by his treating surgeon, that there was no further surgery available to him;
(c)It must be remembered that even performing the present job, the plaintiff has symptoms in his elbows – particularly on the right, no doubt brought about to some extent by the operation of the lever causing the hydraulic hoist to work and lift bins. Of course, that is in circumstances where the right arm is resting in some type of armrest;
(d) When one asks what further treatment could the plaintiff obtain after being told by Mr Nelson that no further surgery could be done, I consider it understandable his reluctance to undergo further injections into the elbows. Of course, the plaintiff does take tablet medication on a daily basis when working to control the pain symptoms;
(e) It is to be remembered also that this plaintiff’s work history had been “hands-on” and it had been his intention to obtain many certificates in the heavy machinery area so that he could advance in such work which he considered to be better paid. I consider that the loss of ability to undertake such work is relevant to assessing the pain and suffering as set out in the Court of Appeal decision of Ellis Management Services Pty v Taylor.[76]
[76][2013] VSCA 326 at paragraphs [39] and [49]
In Ellis Management Services Pty Ltd v Taylor, the judge of first instance, and the Court of Appeal, held that it was necessary to take into account the loss of function of the right arm of Ellis could have more significant disabling consequences for that plaintiff than the same injury may have on a different person. The court summarised this proposition by saying, at paragraph [52]:
“After all, it is to be remembered that when assessing pain and suffering consequences one needs to have regard to the whole of the individual (background, abilities, skill sets and the like), not merely some worker of average or uniform characteristics.”
The loss of potential future career opportunity is relevant to this particular plaintiff which, hitherto, had involved very much hands-on work. Although performing a job which does involve both arms, the operation of such equipment, like graders and other heavy equipment, would be beyond him, given the advice of Mr Nelson.
172 For completeness, I should add that if I be wrong about there being one single impairment to the body function of manual dexterity, I do consider that the right arm, standing alone, is seriously injured within the meaning of the Act and similarly, that the left arm, standing alone, is seriously injured within the meaning of the Act. I do so for essentially the same reasons as I have recorded for finding that the plaintiff is seriously injured. Most of the activities to which he refers to does involve both arms and if one arm, because of increased pain in the elbow and the limitations that that brings about, would also impact on the various work, social, recreational and domestic activities to which the plaintiff has referred.
Conclusion
173 Accordingly, pursuant to s134AB(16)(b) of the Act, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages in relation to the epicondylitis suffered in both arms.
174 I will hear the parties on costs.
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175
ANNEXURE “A”
1 The plaintiff tendered the following material:
Exhibit 1
·Particulars of injury
·Affidavits of the plaintiff sworn on 26 July 2015 and 30 May 2016
·Affidavit of the wife of the plaintiff, Kellie-Ann Wilson, sworn on 30 May 2016
(All such documents found at pages 1-12, Plaintiff’s Court Book (“PCB”))
Exhibit 2
·Report of the treating orthopaedic surgeon, Mr John Nelson, dated 11 November 2013
·Medical reports of the former general practitioner, Dr Arthur Obi, dated 5 November 2013 and 9 August 2015
·Report of the current general practitioner, Dr Lorna Stanely, dated 4 July 2016
(All such material found at pages 13-17b, PCB).
Exhibit 3
·Medico-legal report of the orthopaedic surgeon, Mr Thomas Kossmann
(Such report found at pages 18-24, PCB).
Exhibit 4
·Claim Form of the plaintiff, dated 18 June 2012
·Notice of Entitlement, dated 19 November 2014
(Such material found at pages 27-30, PCB).
2 The defendant tendered the following material:
Exhibit “A”
·The medical reports of the general surgeon, Mr Michael Troy, dated 24 September 2013 and 16 July 2016
·Report of the general surgeon, Associate Professor A J Buzzard, dated 18 November 2014
(Such material found at pages 1-19, Defendant’s Court Book (“DCB”)).
Exhibit “B”
·Certificate of Medical Opinion, dated 10 March 2015.
Exhibit “C”
·DVD demonstrating pre-injury employment consisting of greater driving.
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