Young v Victorian WorkCover Authority
[2023] VCC 1947
•1 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-00637
| STUART YOUNG | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 September 2023 | |
DATE OF JUDGMENT: | 1 November 2023 | |
CASE MAY BE CITED AS: | Young v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1947 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the left upper limb – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; TTB SMS Pty Ltd v Reading [2020] VSCA 203
Judgment: Leave granted to the plaintiff to commence a proceeding for pain and suffering damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Cvjeticanin | Maurice Blackburn |
| For the Defendant | Ms C A Kusiak | Minter Ellison |
HER HONOUR:
Introduction
1Mr Stuart Young, the plaintiff, is a forty-seven-year-old former Corrections officer. He seeks leave to issue proceedings claiming pain and suffering damages for an injury to his left upper limb pursuant to paragraph (a) of the definition of “serious injury” in the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
2On 25 July 2018, a German Shepherd dog “Flint” attacked the plaintiff during his employment with G4S Custodial Service Pty Ltd (“the employer”) at Port Phillip Prison (“the incident”). He suffered bite injuries to his left forearm, wrist, and hand.
3There was no issue that the plaintiff suffered a compensable injury to his left upper limb in the incident. The defendant contested the proceeding on the issue of “range”.
4The legal principles are well known and were not in issue.
5The defendant elected not to cross-examine the plaintiff or his partner. I was invited to view the plaintiff’s scarring and did so to aid an understanding of the evidence.
6I have considered the tendered evidence but will only refer to it to the extent necessary for the purpose of these reasons.
7For the reasons that follow, I have determined that the plaintiff has satisfied his onus of establishing that the permanent impairment consequences of his left upper limb injury can be fairly described as more than “significant” or “marked” and “at least very considerable” when compared to the range of possible impairments.
Background
8The plaintiff has a partner and a young daughter. He is right-hand dominant.
9The plaintiff grew up in the Geelong area and left high school in Year 11. After leaving high school the plaintiff started, but did not complete, a carpentry apprenticeship. He joined the Australian Army but was medically discharged after a year due to pain in his lower limbs. Thereafter the plaintiff worked in mines in Western Australia for several years. He then worked as an insurance surveillance officer.
10The plaintiff started working for the employer in March 2007.[1] Initially he was employed as a Corrections officer, but he moved to the employer’s “intelligence unit” in 2012 to become a dog handler.
[1]Plaintiff’s Court Book (“PCB”) 76
11On 25 July 2018, just prior to the incident, the plaintiff and his dog “Flint” were attending to drug detection duties at Port Phillip Prison. An emergency code was transmitted on the radio notifying of a potential prisoner escape. After the plaintiff and “Flint” arrived at the scene, “Flint” became very agitated. He bit the plaintiff’s left hand, and then gripped and bit into the plaintiff’s left forearm. “Flint” did not obey commands to release the plaintiff. The plaintiff had to forcibly grab “Flint” with his right hand to regain control of him and make him release his left arm. The plaintiff received several wounds to his left forearm and hand in the incident.
12The plaintiff was taken by ambulance to the Sunshine Hospital. The wounds were washed out under anaesthetic, and the smaller ones stitched. The following day, the largest wound, to the forearm, was closed by means of a skin graft from the plaintiff’s left inner upper arm. In all, the plaintiff had 25 stitches and 14 staples to close his wounds. The plaintiff remained in hospital for three days.
13There was reference in the tendered medical material to the plaintiff suffering an injury to his left shoulder in the incident. Neither party referred to left shoulder symptoms during the hearing. The plaintiff did not refer to left shoulder symptoms in his affidavits. The medical material noted complaints of intermittent left shoulder pain, but it does not appear that there has been any treatment or medication prescribed for left shoulder symptoms for some years.
14The plaintiff submitted a WorkCover claim on 26 July 2018,[2] which was accepted.
[2]PCB 75
15An MRI scan of the plaintiff’s left wrist on 6 September 2018 was reported to show no specific abnormality and no evidence of osteomyelitis or tenosynovitis.
16For about two months following the incident the plaintiff undertook hand therapy and physiotherapy and took analgesics for his left upper limb pain.
17The plaintiff was absent from work for approximately six weeks following the incident. He returned to work on light duties initially. After approximately eight weeks he resumed his pre-injury duties and normal work hours. He continued to work with “Flint”.
18In November 2018, the plaintiff underwent unrelated surgery to his lumbar spine to relieve back and leg pain. That surgery had been planned prior to the incident.
19In March 2019, the plaintiff left the employer and started a role with the Australian Federal Police (“the AFP”) training dogs and dog handlers. His work was based in Canberra, but the plaintiff and his family returned to Melbourne in 2021 on a compassionate transfer so that the plaintiff’s partner could live closer to her teenage son.
20In March 2023, the plaintiff was told by the AFP that he would be required to return to work in Canberra. The plaintiff wanted to remain in Melbourne with his family. This was not only to remain living closer to his partner’s son, but also to allow his young daughter to continue her treatment at the Royal Children’s Hospital for a serious medical condition.
21Consequently, the plaintiff left his job with the AFP and is currently looking for full-time work in the intelligence field. The plaintiff has decided not to continue working as a dog handler or trainer. He acknowledged that he is physically and psychologically capable of continuing that work, but he has decided he would now prefer not to do it given the consequences of his injury.[3]
[3]PCB 16, and Transcript (“T”) 6, 27-28
22The plaintiff has not had any hands-on treatment for his injuries since 2018. He was prescribed Lyrica for an unidentified period but ceased taking it due to unpleasant side effects. In about August 2022 the plaintiff made enquiries about using Cannabinoid oil (“CBD oil”), and subsequently he began taking it. He stopped using it in around March 2023 as he did not want to have it “in his system” whilst applying for work.[4] He said, and I accept, that he resumed his use of CBD oil just prior to August 2023.[5]
[4]Defendant’s Court Book (“DCB”) 11-12
[5]PCB 16
Medical evidence
Treating practitioners
23The plaintiff did not tender any reports from treating practitioners.
Dr Terry Nguyen, general practitioner (“GP”)
24The defendant tendered a letter from Dr Nguyen, at Australian Access Clinics in Mascot, New South Wales, dated 27 October 2022.[6]
[6]PCB 31
25Dr Nguyen’s letter, addressed to “to whom it may concern”, noted the plaintiff was prescribed medicinal cannabis in August 2022 for his dog bite injury. The letter stated that cannabinoids may be detected in the plaintiff’s blood and urine for six to eight weeks after dosing.
26The presenting complaint was described as “nerve pain and anxiety” for four years. Dr Nguyen noted the plaintiff had previously trialled Pregabalin 75mg, which was effective, but the plaintiff said it “made me feel a bit slow”.
Medico-legal practitioners
Dr Philip Sheard, orthopaedic surgeon
27The plaintiff tendered a report from Dr Sheard dated 13 June 2023.[7] Dr Sheard examined the plaintiff the same day.
[7]PCB 57
28Dr Sheard noted that the plaintiff denied having any recent treatment for his left upper limb condition and advised that he could not tolerate painkillers for the nerve type pain he experienced.
29Dr Sheard reported the plaintiff’s current complaints as follows:[8]
“At the present time, he describes regular nerve pain, in his left arm, which he describes as being like a lightning bolt shocking in nature on a regular daily basis, which is short lived, improved with no clothes over the site, but worsened when wearing clothes. He has two areas of shooting pain, one from the dorsum of his forearm down into the first dorsal webspace between the thumb and index finger, was also over the volar radial aspect radiating into the thumb. He also describes numbness over the volar radial aspect, like local anaesthetic wearing off and over the superficial radial nerve area. He describes grip strength and dexterity to be fine but does have fatigue and aching after using his hand normally. He avoids painkiller [sic]. He still gets some pain over the anterior aspect of his shoulder, but this is only occasionally.”
[8]PCB 58
30Dr Sheard reported that the plaintiff told him that his activities of daily living “are all normal apart from having aching the next day with use”.[9] The plaintiff reported that his ability to play the guitar and drums were reduced.
[9]PCB 58
31On examination, Dr Sheard noted:
· A 7.5 x 4.5 cm elliptical skin graft, depressed mildly over the dorsum of the mid forearm;
· A 5 x 7.5 cm volar medial graft site;
· A 4 x 5 cm transverse volar medial scar over the distal forearm;
· A well-healed puncture wound at the dorsum of the left hand.
32Dr Sheard found decreased sensation to sharp touch over the superficial radial nerve distribution of the plaintiff’s left hand. The plaintiff was Tinel’s positive over the course of the superficial radial nerve.
33Dr Sheard opined that the plaintiff had no functional deficits in his hand or elbow, but experienced aching with increased use. He said:[10]
“His main problem is decreased sensitivity over two areas, superficial radial nerve and non-dermatomal on the volar aspect. He has decreased sensation to pinprick over the distribution of the superficial radial nerve and is Tinel’s positive over the distribution of the superficial radial nerve. I feel it is likely that he may have chronic regional pain syndrome type 2 with distinct injury of the superficial radial nerve causing shooting type pain and dysaesthesia [sic] and allodynia. It is notable that even light touch with his clothes causes shooting pains and I think he may well benefit from a review by a pain specialist.”
[emphasis added]
[10]PCB 60
34The plaintiff has not been referred to a pain specialist.
35I note that no other medical practitioner proffered a diagnosis of chronic regional pain syndrome and the plaintiff’s case was not put on the basis that he suffered from that condition.
Dr David Freilich, neurologist
36The plaintiff tendered a report from Dr Freilich dated 24 August 2023.[11] He examined the plaintiff on 22 August 2023.
[11]PCB 61
37Dr Freilich noted that the plaintiff reported some pain at the site of the graft and over the radial border of the forearm proximal to the wrist. The two areas were tender to touch and very sensitive, but there was no pain or discomfort if he did not touch the area. The plaintiff reported numbness distally over the flexor aspect of his left wrist. When touched the area was both numb and sensitive. The plaintiff told Dr Freilich that if he used his left hand a great deal it ached the next day. The plaintiff said that he had continued doing everything he needs to do.
38On examination Dr Freilich noted there was no muscle wasting or weakness in the plaintiff’s left upper limb. His reflexes were normal. When he touched the edge of the skin graft, the plaintiff reported experiencing a shooting pain down into his wrist. Dr Freilich noted the plaintiff was very sensitive to touch along the radial aspect of the distal forearm. Pinprick sensation was impaired around the edge of the skin graft and diminished over the dorsum of the wrist and distal radial forearm.
39Dr Freilich opined that the plaintiff had a mixture of decreased sensation and hypersensitivity around the edge of the graft, over the radial border of the distal forearm and over the dorsum of the wrist. This indicated that there had been damage to the small nerve branches supplying the areas involved. He noted the plaintiff reported “those areas are only symptomatic when he touches them and not at other times”. Dr Freilich opined that the plaintiff’s neurological symptoms would continue with no improvement expected.
40Dr Freilich noted that the plaintiff told him that he had stopped playing the drums and guitar because of pain in his left hand.
Medical Panel Opinion and Reasons
41The plaintiff tendered a Medical Panel (“the Panel”) Opinion and Reasons of Dr John Bourke, orthopaedic surgeon; Dr Yvonne Chow, plastic surgeon; and Dr Jennifer Harmer, rheumatologist; dated 10 August 2022.[12] The defendant did not object to this tender.
[12]PCB 66
42The Opinion related to the plaintiff’s impairment assessment. The Panel examined the plaintiff on 1 August 2022.
43The plaintiff reported to the Panel that his symptoms included what he described as nerve pain. Pain extended from the front of his left lower forearm to the base of his left thumb. He also described pain on the back of his left lower forearm extending from the outer aspect of the grafted area down to his left wrist. The plaintiff described the pain as a combination of altered feeling together with unpleasant feelings in both areas. Pressure caused by tight clothing could irritate both areas.
44The plaintiff also told the Panel that he may experience aching over the back of his left hand if he overused it. He said that his treatment comprised an ongoing exercise program at a gym. He was not using any medications. He had recently made enquiries about CBD oil, but his GP said it was unlikely to help his nerve pain.
45On examination, the Panel found a full range of left forearm and wrist movement. They described the plaintiff’s scars, noting some contour deformity and adherence of the central aspect of the graft to the underlying fascia. The Panel found a positive Tinel’s sign over the upper and outer aspect of the grafted area of the plaintiff’s left forearm, consistent with an injury to a cutaneous branch of the left musculocutaneous nerve. This produced tingling and altered sensation from that area to the level of the wrist joint. They made similar findings over the larger of the puncture wounds over the front of the plaintiff’s left lower forearm producing tingling and altered sensation from that area to the base of the left thumb.
Associate Professor Anthony Buzzard, orthopaedic surgeon
46The defendant tendered two reports from Associate Professor Buzzard dated 10 March 2022[13] and 11 May 2023.[14] Associate Professor Buzzard examined the plaintiff on 10 March 2022 and 11 May 2023.
[13]DCB 3
[14]DCB 10
47In March 2022, the plaintiff reported to Associate Professor Buzzard that he experienced pain on the dorsal aspect of his left forearm. He said that there was a tender point which, if he touched it, caused pain to shoot down the dorsal aspect of the left forearm to the left hand. The plaintiff also reported pain at the site of the scar on the volar aspect of his left wrist, with a tender spot which caused shooting pain to the base of the left thumb if pressed. The plaintiff reported some numbness at the base of his left thumb. He said he also experienced occasional pain in the back of his left hand if he “overused” it.
48On examination, Associate Professor Buzzard found some tenderness in the interior aspect of the left shoulder. He opined that there was a slight underlying lump consistent with a neuroma at the site of the split-skin grafted scar. In pressing it there was a sensory disturbance extending down to the dorsal aspect of the left hand.
49Associate Professor Buzzard also found an area of the scar in the radial aspect of the left wrist where the plaintiff experienced some sensory disturbance radiating downwards. There was a patch of numbness at the base of the left thumb.
50Associate Professor Buzzard found no restriction in range of movement of any of the joints of the plaintiff’s arms, forearms, or hands.
51Associate Professor Buzzard concluded that the plaintiff had made a satisfactory recovery from the lacerations to his left upper limb. He said that the plaintiff appeared to have two neuromas giving rise to tender lumps with pain radiating from them. He opined that further investigation with diagnostic ultrasonography and treatment was not justified under the circumstances. Although it was not explicitly stated, in context it appeared that Associate Professor Buzzard’s opinion was that the extent of claimed symptoms arising from the neuromas was not of such significance that further investigation and treatment was justified.
52Associate Professor Buzzard also noted that the plaintiff appeared to have suffered a left shoulder injury in the incident. He had some symptoms but not such as to warrant further investigation or treatment.
53When seen again by Associate Professor Buzzard in May 2023, the plaintiff confirmed the accuracy of the narrative section of Associate Professor Buzzard’s earlier report. The plaintiff said that he had not had any treatment in the intervening 14 months.
54The plaintiff reported to Associate Professor Buzzard that he suffered pain in his left forearm at the top of the scar on the dorsal aspect and in the region of the scar on the volar aspect of the left wrist. The pain in the dorsal aspect of the left forearm “shoots” down the dorsal aspect of the left hand and the pain on the volar aspect of the left wrist “shoots” to the base of the left thumb. The plaintiff reported a separate pain in the left hand which came on after activities such as gardening.
55The plaintiff told Associate Professor Buzzard that he had recently ceased taking CBD oil and was not then taking any medications.
56The plaintiff told Associate Professor Buzzard that he had stopped going to the gym. Associate Professor Buzzard recorded the plaintiff “said he was going to the gym when he was employed”.[15]
[15]DCB 11
57Associate Professor Buzzard opined that the plaintiff’s condition had not changed significantly since he was last seen.
The claimed impairment consequences
58There was no issue that the plaintiff’s current impairment consequences are permanent in the requisite sense.
59There was no suggestion in the evidence that the plaintiff’s condition will either improve or deteriorate in the future.
Pain
60In his first affidavit, sworn on 2 August 2022, the plaintiff deposed to experiencing symptoms of pain in his left forearm and left thumb which was “nerve type pain”.[16] He stated that sometimes just wearing clothing that touched the scar on his left forearm and thumb could cause a flare-up of pain. The plaintiff deposed to his pain being “flared up” by activity. The plaintiff said that gripping something with his left hand at the gym would cause a flare-up of pain in his left hand, left thumb and left forearm.
[16]PCB 11
61In his second affidavit, sworn on 8 August 2023, the plaintiff deposed as follows regarding his pain:[17]
[17]PCB 16-20
“3.Up until March 2023, I worked full time as a dog trainer and instructor. I was not prevented from doing that work but I did continue to have pain in my left forearm, left wrist and left hand. I found that forcefully gripping the dog’s lead resulted in an increase in pain …
...
5. As a result of the injury, I continue to have pain in my left arm. There is a constant pain which I call a nerve pain. It is in my left wrist and at the site of my scar. The pain on the underside of my left wrist goes into my left thumb. There is a shooting pain that comes from the scar on the back of my left wrist and it goes into the back of my left hand. The pain I experience is quite an intense sort of pins and needles. It is hard to describe. The pain shoots into my left thumb and into the back of my left hand.
6. The area of the scar on the back of my left wrist is super sensitive. If I touch it or rub it then I get an even more intense shot of pain. If someone touches it, it can be very painful. Even just wearing clothes like a long sleeved shirt, jumper or jacket, the scar is constantly being touched and sends shoots of more intense pain down into the back of my left hand. It is the same with the smaller scars on the underside of my left wrist. That scar is even more painful. That pain shoots into my left thumb. ...
7. ... Eventually I found a model of watch which I have been able to tolerate. The plastic is quite soft. It is a Garmin Forerunner 45. Sometimes it still causes me a flare of pain but it is the best of all of the ones I have tried.
8. The pain from the injury is also flared up by activity. For example, if I have been using my left hand for something like gardening, the next day my left hand aches. The ache lasts the whole of the day. That is in addition to pain that is constantly there. If I grip something forcefully, like a heavy weight at the gym, then I get a sharp flare up of pain immediately. It is like a stabbing pain and I have to stop doing whatever it is I am doing. While I was still working with dogs, I used to get flare up of either the shooting pain or the ache the next day, depending on what I was doing at work.
…
11. I have tried not to let the injury stop me from doing anything but some things have just proved too difficult. I still try to use my left hand as normally as possible but things might still cause me pain. That can be carrying shopping, gardening, carrying a box or something like that. ...
12. I used to take Lyrica for the pain but I did not like it. It left me feeling kind of foggy. I tried using CBD oil. I had a prescription. It helped a bit with the pain but the pain never went away. I notified the AFP about using CBD oil while I was working with them. There was no issue. I believe that was because I was non-operational. I did not drive a police car or carry a firearm. I continued to use CBD oil until this year when I started looking for new work. I did not want to have to explain it if I had a drug screen. While I was not taking the CBD oil, I thought my pain was a bit worse. Recently, I have started taking it again. It makes me feel a bit better. I do not bother with painkillers like Paracetamol because they just make no difference.”
62The plaintiff tendered an affidavit sworn by his partner, Stacy Walsh, on 8 August 2023. In that affidavit Ms Walsh deposed that if the plaintiff undertakes gardening or moving furniture, it:[18]
“makes things worse for him the next day. I can see him rubbing the area of his injury like it is sore. He does not make a big deal of it. Sometimes, I am just mucking around with him and I grab or knock the area of his injury and he pulls it away suddenly. I feel bad that I did it. I can tell that he is in more pain. ...”
[18]PCB 23-24
63Although he has not had any hands-on treatment for some years, the plaintiff has been given prescriptions for CBD oil at least in 2022 and 2023. Apart from the brief letter from Dr Nguyen, there is no report from the GP who has provided those prescriptions.
64The defendant elected not to cross-examine the plaintiff or his partner. Therefore, the content of the affidavits were not challenged and I accept those accounts of the plaintiff’s symptoms and consequences in the context of the evidence as a whole.
65I accept the plaintiff’s evidence regarding the constant nerve type pain he experiences. I find that he experiences regular exacerbations of pain if his scar is touched or knocked, from forceful gripping, and overuse.
66I find that the plaintiff ceased taking analgesia following the immediate aftermath of the incident, as he found that he could not tolerate strong analgesia, and over-the-counter medications made no difference to his pain. More recently the plaintiff took CBD oil for both pain and anxiety. He temporarily stopped using CBD oil whilst seeking new employment, but I accept that he has recently resumed using it for his pain.
Gym
67In his first affidavit, the plaintiff deposed to continuing to attend the gym to keep fit. He said he experienced increased pain in his left upper limb when gripping with his left hand.
68In his second affidavit, the plaintiff deposed to having ceased attending the gym since swearing his first affidavit because he no longer wanted to put up with the stabs of pain he experienced when gripping something forcefully with his left hand.
69The plaintiff’s partner deposed to the plaintiff’s enjoyment of attending the gym to keep fit prior to the incident. She said that following the incident the plaintiff tried to get back to attending the gym but was “never able to fully get back to it and then stopped going altogether. He complained that he just could not do gym properly because of the injury to his left arm”.[19]
[19]PCB 24
70I accept the plaintiff’s evidence that he continued attending the gym following the incident but ceased at an unspecified time after August 2022 because he no longer wished to put up with increased discomfort when performing forceful gripping with his left hand.
71The defendant submitted that there were a variety of activities the plaintiff could undertake at the gym which would not involve forceful gripping with his left hand. I find that the plaintiff could undertake activities at the gym that do not involve forceful gripping with his left hand, but his ability to enjoy attending the gym has been compromised to such a degree that he no longer attends by reason of his left upper limb impairment.
72I find that this is a significant loss to the plaintiff.
Music
73In his first affidavit the plaintiff deposed to playing the guitar and drums for relaxation prior to the incident. He said that he no longer enjoyed those activities to the same degree and was limited in the amount of time he could play because it flared up pain in his left hand, thumb, and forearm.
74In his second affidavit the plaintiff said as follows regarding his music playing:[20]
“10.I used to enjoy playing music. I played the guitar. I had two Epiphone electric guitars and a Fender Squire electric guitar. I also had a Samick acoustic guitar. I used to enjoy playing guitar every day or every second day. Sometimes I played after work. I played guitar on weekends and on days off. I had played since I was young. Music was always an important part of my life. I also enjoyed playing the drums. I had a Roland electric guitar kit. I played the drums in a band when I was young. Music was very enjoyable and a great way to relieve stress. It has been a long time since I played the guitar. It is perhaps several months now. I tried to persist after my injury but it is just too painful. I still have my guitars and amplifier but I just cannot use them. I try to use the drum kit every now and again. It is perhaps once a fortnight. My left wrist just aches the next day if I have been playing the drums. The instruments just sit in the spare room now. I miss being able to play music like I used to. It is an important part of my life and it feels like I will never get back to it.”
[20]PCB 19
75The plaintiff’s partner deposed to the plaintiff’s enjoyment of music. She said that he would play the guitar and drums on his days off and at the weekends prior to the incident. She said that the plaintiff played the guitar and drums after the incident, but not as much as before. She deposed that:[21]
“Eventually, he pretty much stopped playing guitar altogether. I have not seen him play guitar for months now. His guitars are still sitting in the spare room. Sometimes he gets on his drum kit but it is not very often.”
[21]PCB 24
76It was submitted on behalf of the plaintiff that he continued playing the guitar until early 2023 because he was stoic “to the point of being bloody minded”.[22]
[22]T7
77I find that playing the guitar and drumming were hobbies that the plaintiff enjoyed a great deal. He played very regularly prior to the incident. Playing music could be described as a particular passion.
78Following the incident, his enjoyment of playing was diminished because of the pain he experienced in his left upper limb when doing so. Consequently, he did both much less frequently.
79I find that the plaintiff has not played the guitar for some months and is now only intermittently playing the drums. I accept that the pain and discomfort the plaintiff experienced in his left upper limb when playing those instruments is the reason for the change. I find that this is a significant loss to the plaintiff.
Retained capacity
80I am required to assess the plaintiff’s impairment by comparison with other cases in the range of possible impairments or body functions and determine whether it can fairly be described as more than significant or marked and at least very considerable. As was said by the Court of Appeal in TTB SMS Pty Ltd v Reading:[23]
“The evaluation required of the trial judge, and this Court, involves a comparison of the worker’s impairment not just with other impairments of the hand, but also with other types of physical impairment that may be suffered, including impairment of the brain, the spine and large joints such as the knee and shoulder. Those other physical impairments may involve constant pain, significant medical treatment and medication. They may involve sleep deprivation, or an inability or reduced ability to socialise or work.”
[23][2020] VSCA 203 at [31]
81The plaintiff has a full range of movement in his left upper limb.
82The plaintiff was able to resume his pre-injury duties and hours following the incident. He retains the capacity to perform that work full-time, but I accept that he experienced flare-ups of pain performing that work.
83A capacity to perform pre-injury duties does not mean that a plaintiff does not have a “serious injury”. It is simply one of the matters to be taken into account.[24]
[24] Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
84The plaintiff is independent with his personal activities of daily living.
85The plaintiff can undertake domestic activities, including gardening, albeit with some increased ache or pain at the time or the following day.
86On the evidence, the plaintiff does most of the cooking for the family.
87The plaintiff does not claim to have any impairment in his ability to sleep or socialise.
88The plaintiff is not restricted in his capacity to drive, or in respect of his mobility more generally.
89The plaintiff reported to Associate Professor Buzzard that he still engaged in his hobbies of fishing and hunting.
90Save for the prescriptions for CBD oil, the plaintiff has not had any treatment for his left upper limb condition for some years. No additional treatment is planned.
Conclusion
91The plaintiff suffered injury in a frightening incident. He has displayed considerable stoicism in resuming pre-injury employment and activities despite his ongoing symptoms.
92I find that he suffers from constant nerve-type pain, including frequent exacerbations involving shooting pain into his left hand when wearing long sleeves, if certain of his scars are touched or knocked, and if he engages in forceful gripping with his left hand. Further he suffers from aching in his left hand from repetitive use.
93The plaintiff is no longer able to enjoy and pursue playing the guitar, and his ability to undertake activities at the gym and to play the drums is significantly diminished. Attending the gym and playing music were the plaintiff’s primary hobbies, and his means of relaxation.
94I consider that this was a borderline case. However, the nature of the plaintiff’s constant “nerve pain”, the frequency with which it is aggravated by matters as mundane as the wearing of long-sleeved clothing, together with the significant interference with the plaintiff’s recreational activities, elevates the impairment to the requisite level.
95In undertaking the value judgment required of me, I find that the plaintiff has satisfied his onus of establishing that the permanent impairment consequences of his left upper limb injury are more than significant or marked and at least very considerable when considered in the range of impairments.
96Accordingly, I give leave to the plaintiff to issue proceedings seeking pain and suffering damages.
97I will hear the parties on the issue of costs.
---
0
3
0