IN THE COUNTY COURT OF VICTORIAAT MELBOURNECIVIL DIVISIONDAMAGES AND COMPENSATION LISTSERIOUS INJURY DIVISION

TOR ATAY CHOL

BROOKLYN MEAT PROCESSORS PTY LTD

JUDGE:

WHERE HELD

V

RevisedNot Restricted

Suitable for Publication

Case No. Cl-12-00217

Plaintiff

Defendant

DATE OF HEARING:

DATE OF JUDGMENT:

CASE MAY BE CITED AS:

MEDIUM NEUTRAL CITATION

Subject:Catchwords

Legislation CitedCases Cited:

Judgment

APPEARANCES:

For the Plaintiff

For the Defendant

HER HONOUR JUDGE KINGS

Melbourne

18 November 2013

4 December 2013

Chol v Brooklyn Meat Processors Pty Ltd

l2013lvcc 1890

REASONS FOR JUDGMENT

ACCIDENT COMPENSATIONSerious injury application - impairment to the right forearm and hand -pain and suffering onlyAccident Compensation Act 1 985, s1 3aAB(37)(a)Batwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Stijepic vOne Force Group Aust Pty Ltd Í20091VSCA 181; Kelso v Tatiara MeatCompany Pty Ltd l2Ù07l 17 VR 592; Sabo v George Weston Foods[2009]VSCA 242; Franklin v Ubaldi Foods Pty Ltd (1995) 21 MVR 314Application granted.

Counsel

Mr A lngram withMr J Harris

Solícitors

Shine Lawyers

Mr J Batten Minter Ellison

COUNTY COURT OF VICTORIA250 Will¡am Street, Melbourne

HER HONOUR:

This is an applícation brought by the plaintiff for leave pursuant to

s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) ("the

Act") for injury suffered by him in the course of his employment with the

defendant on 22 June 2008.

The plaintiff seeks leave to bring proceedings for damages in relation to pain

and suffering.

The plaintiff brings this application pursuant to clause (a) of the definition of

"serious ínjury" to be found in s134AB(37) of the Act.

There, "serious" is defined as meaning:

"(a) permanent serious impairment or loss of a body function."

The body function relied upon in this application is impairment to the right

forearm and hand.

The plaintiff relied upon three affidavits, two sworn by the plaintiff on

17 August 2011 and 30 October 2013 and an affidavit of his sister, Kristina

Chol, sworn on 1 February 2013. The plaintiff was cross-examined, I have

not summarised the plaintiff's affidavits or his evidence. I will refer to the

plaintiff's relevant evidence in my reasoning. ln addition, both parties relied

on medical reports and other material which was tendered in evidence. I have

read all the tendered material.

Relevant legal principles

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.1

g ln order to succeed, the plaintiff must prove, on the balance of probabilities,

chol v Brooktyn t"", rr"""r'.Toon#ÍlJ

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Section 13448(19)(a) of the Act

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that:

(a) "the injury" suffered by him arose out of, or in the course of, or due to the

nature of, his employment with the defendant;2

(b) "the injury" with its resulting impairment must be permanent, in the sense

that it is likely to continue into the foreseeable future;3

(c) 'the consequences" to the plaintiff of his impairment to the right forearm

and hand in relation to "pain and suffering" must be "serious" - that is,

"when judged by comparison with other cases in the range of possible

impairments ... be fairly described as being more than significant or

marked and as being at least very considerable".a

Consequently, the Court must consider the impairment of body function

suffered by the particular plaintiff, but the test also requires an objective

comparison between the impairment suffered by the plaintiff and the range of

possible impairments.

10 As Ashley JA and Beach AJA said in stijepic v one Force Group Aust pty

Ltd:5

"The emphasis in s 134A8(37)(c) and (d) is upon seeing where the factsof a particular case sit in the broad spectrum of cases, remembering thatthis includes cases which do not end up in litigation - because, it may besupposed, ^the consequences are glaringly apparent one way or theother.

11 ln assessing the consequences

"... the significance of what has been lost may be informed, to an extent,by what has been retained."T

12 The test for "serious", as set out in paragraph (b) and (c) of s134AB(38) of the

Section 134A8(1) of the Act and Banuon Sprnners Pty Ltd & Ors v Podotak (2005)paragraph [1 1]Barwon Spinners (supra) at paragraph [33]Section 13448(38Xb) and (c)[2009]vscA 181(Supra) at paragraph [42]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [44]

'14 vR 622, at

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Act, is sometimes referred to as the "narrative test"

13 ln determining the application, the Court:

(a) must make the assessment of "serious injury" at the time the application

is heard;8

(b) notes that it has been observed that the question of whether any injury

satisfies the narrative test is largely a question of impression and value

judgment.s

The issue

14 Counsel for the defendant informed the Court there were three issues

15 Firstly, the identification of the injury is in issue. The defendant admits a

compensable injury occurring to the right wrist on 22 July 2008. That injury

involved a laceration and damage to the flexor digitorum profundus of the right

forearm but did not involve damage to the median nerve. ln November 2009,

the defendant accepted liability for a carpal tunnel release, and median nerve

neurolysis procedures said to have been required in consequence of keloid

scarring subsequent to the laceration.

16 Secondly, the plaintiff is not a credible witness

17 Thirdly, the defendant informed the Court that this is a "range case", namely

that the consequences of the plaintiff's impairment to the right forearm and

hand do not meet the test of seriousness for pain and suffering, in that they

could not be considered "as being more than significant or marked and as

being at least very considerable" when compared to other cases in the range.

lnvestigations

18 On 21 August 2009, Dr David Freilich, neurologist, conducted a nerve

Section 134A8(38Xi) of the AcfSee Kelso v Tatiara Meat Company Pty Ltd l2o07l17 VR 592, at 628; Sabo v George Weston Foods[2009]VSCA 242, at paragraph [67]

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conduction study report. The findings are those of a right carpal tunnel

syndrome.

19 On 21 February 2011, an x-ray of the left hand concluded:

"1 Fracture in the terminal phalanx of the left second finger.

2 Another hairline non-displaced fracture in the base and shaft of themiddle phalanx of the left third finger."

The Plaintiffs medical evidence

Northern Plastic Surgery operation report

On 2 August 2010, an operation report confirmed that Mr Mark Baldwin,

plastic surgeon, performed surgery on the plaintiff's right hand and forearm.

ln a letter dated 18 December 2009 to QBE, Mr Baldwin said that the plaintiff's

new employment after 12 August 2008 did not impact on his right

forearm/hand. He said the injury was related to some swelling and scar tissue

caused by the original injury. He did not consider that activities outside the

plaintiff's original employment (after 12 August 2008) would have brought

about the current diagnosis. He said as far as he was aware, the symptoms

had persisted since the surgery and were relatively unchanged.

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Report of Western Health

On 16 October 2010, Professor lan Brand, medical administrator, wrote to the

plaintiff's solicitor and said the plaintiff presented at the Sunshine Hospital on

10 June 2010 with an onset of left lower wrist pain and swelling. The plaintiff

was diagnosed with De Quervain's tenosynovitis because of repetitive use of

his left arm while working at an abattoir, gutting sheep. His left wrist was

splinted, he was referred to the Plastic Outpatient Clinic for further treatment

and was referred to an occupational therapist.

The plaintiff attended occupational therapy on 25 June and 2 July 2010 when

the pain was much improved. He was seen in the Occupational TherapV

Department on 9 and 15 July 2010. He was provided with a return to work

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certificate on modified duties using his right hand only. on 2g July 2010, the

plaintiff was pain free with a full range of movement. The plaintiff was

discharged from the clinic.

On 15 January 2011, Professor Brand confirmed that in relation to the 22 July

2008 incident, the plaintiff attended with a work injury - an accidently cut right

wrist. lt was decided to írrigate the wound, dress it, put the wrist in a back

slab and discharge the plaintiff with analgesia and the Plastic Surgery

Department would contact the plaintiff regarding further surgery.

Mr Mark Baldwin

On 2 November 2010, Mr Baldwin, plastic surgeon, confirmed that on 24 July

2008, he performed a debridement and exploration of the wound. Two

months following the surgery, the plaintiff complained of symptoms of median

nerve dysfunction in the right hand. A nerve conduction study was performed,

which was consistent with carpal tunnel syndrome. Following the surgery, the

plaintiff experienced some improvement in his condition, although he still had

residual median nerve weakness and sensory changes. The plaintiff had a

large forearm scar which may become hypertrophic. Mr Baldwin expected he

may have permanent loss of function in the hand.

On 15 May 2012, Mr Baldwin reported to the plaintiff's solicitor that the plaintiff

incurred a stab wound to his right forearm at work in July 2008. The stab

wound was adjacent to the median nerve and was intact and was proximal to

the flexor digitorum superficialis but entered the flexor forearm muscle quite

deeply. The plaintiff complained of altered sensation in his right hand and in

August 2010, Mr Baldwin re-operated, performing a carpal tunnel release and

neurolysis of the median nerve in the forearm. No significant compression or

evidence of damage to the nerve was noted. A couple of small lesions of

vessels crossing the nerve were diathermal in the forearm. The plaintiff was

last reviewed in February 2011 and reported some improvement in his

symptoms.

chot v Brooktyn Meat proceJ.i?."#rrirl5

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26 Mr Baldwin said the plaintiff has persistent altered sensation and weakness of

the left hand but further surgery is unlikely to be of any benefit and he

expected the current condition will not improve significantly with time. He

noted the plaintiff had returned to hís pre-injury duties and had struggled to do

them. He said it would not surprise him if the plaintiff was unable to perform

the very arduous, demanding and repetitive activity that he had previously

performed in meatworks. He thought the plaintiff was capable of performing

most activities of daily living. He said the plaintiff would be limited by his

altered sensation and diminished strength in the hand.

Mr Anthony Berger

ln January 2013, Mr Berger, hand and upper límb surgeon, reported to the

plaintiff's solicitor that he assessed and managed the plaintiff's right arm injury

in December 2012. The plaintiff was left hand dominant. The plaintiff

complained of numbness and weakness in his right hand, numbness in all

fingers, which appeared to have improved a little, and weakness of pinch grip.

Mr Berger said there is subjective loss of sensation in the thumb, and index,

long and ring fingers. There is a zigzag collapse of the right thumb with

hyperextension of the distaljoint and flexion of the metacarpophalangeal joint.

Mr Berger said he assessed the plaintiff as having damage to the flexor

tendons and possibly the median nerve in his forearm, although he had no

information as to exactly what structures were damaged. Mr Berger referred

the plaintiff to a hand therapist to provide a splint to support the thumb. The

plaintiff was referred for intensive hand and grip strengthening exercises.

Mr Berger said the plaintiff presented with weakness and sensory changes in

his right hand that dates back to a laceration to the volar aspect of the right

forearm. The plaintiff has undergone two surgical procedures. The plaintiff

presented specifically with weakness in his right thumb, although a splint

failed to improve his weakness. He believed the plaintiff's condition has

stabilised and no further treatment is required.

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Dr David Middleton

ln February 2013, Dr Middleton, occupational health and rehabilitation

consultant, assessed the plaintiff at the request of the plaintiff's solicitor. He

said the plaintiff presented as a straightforward person who cleady lacks

understanding as to the failure of his condition to recover. Dr Middleton said

on examination, the most striking problem was the loss of 75 per cent of the

right hand grip strength. He considered the problem involved the median

nerve, which required an updated nerve conduction test to adequately assess.

A nerve conduction test performed on the right median nerve conduction at

the wrist was normal. lt was his opinion the plaintiff suffered permanent

damage to the median nerve, with numbing sensation involving the palmar

aspect of the lateral three digits. He also suffered with damage to the

extensor tendons of the thumb, resulting in serious loss of pinch grip and hand

grip strength, which is no longer suitable for surgery and is reliant upon the

best efforts of a functional restoration program. He said there is permanent

damage to the flexor tendon on the median nerve.

He said ongoing treatment will be restricted to conservative management.

The plaintiff will be permanently disabled. The prognosis of the plaintiff is

guarded. The major impairment is that of damage to the median nerve

involving major losses in grip strength and pinch strength and also dulling of

sensation of the right thumb and index finger and the function of the flexor

tendons to the right thumb.

The combined result of the injury is an instability at the first right metacarpal

phalangeal joint. He said the plaintiff no longer has the physical capacity to

safely resume work as a butcher or in lesser skilled jobs, including labouring

and slicing.

Mr Owen Deacon

f n March 2012, Mr Deacon, orthopaedic surgeon, examined the plaintiff at the

request of the plaintiff's solicitor. lt was Mr Deacon's view the plaintiff suffered

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a stabbing injury to his right forearm and subsequently his symptoms and

signs showed that he developed a carpal tunnel syndrome distal to the stab

wound in his right wrist which was decompressed. Mr Deacon said there is

still the evidence of weakness in the right hand and sensory changes. He

accepted employment was a significant contributing factor. He said the

injuries are permanent and the plaintiff needs to look for alternative work. He

said the plaintiff would not be able to do strong repetitive work with his right

arm lifting, twisting, holding, grabbing, gripping or using a pistol{ype grip

repetitively in any work he takes on.

Mr Kenneth Brearley

ln June 2012, Mr Brearley, orthopaedic surgeon, examined the plaintiff at the

request of the plaintiff's solicitor. He described the plaintiff as genuine, who

speaks English well and is keen to return to some form of employment. Mr

Brearley diagnosed a laceration of the right distal forearm with no tendon,

nerve or vascular trauma. He developed a carpal tunnel syndrome which

required operative carpal tunnel release and neurolysis of the median nerve.

He accepted the injuries were permanent and that the plaintiff has reached his

maximum medical improvement. He said the plaintiff could not return to his

pre-injury duties because of ongoing symptoms in the right forearm and hand.

He would need to obtain slightly lighter type work. He said it was the

discomfort and pain in the wrist and forearm which limited his ability to return

to heavy manual work.

Dr Helen Sutcliffe

f n March 2013, Dr Sutcliffe, occupational physician, examined the plaintiff at

the request of the plaintiff's solicitor. lt was her view the plaintiff had suffered

total incapacity for his pre-injury duties following a second operation and has

no capacity to undertake that occupation now or in the foreseeable future.

She said the plaintiff's physical limitations of the right upper limb, his non-

dominant limb, prohibit the heavy manual handling work that is required in

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those occupations of packing, lifting, labouring, or because of the heavy

manipulative load required in the occupation. She said the plaintiff had

limitations on capacity as a result of the right upper limb of persistent heavy

lifting, manipulation, repeated movement, pushing, pulling and lifting of the

right upper limb. His limitations are a result of the work-related accident.

35 The plaintiff was undertaking training in a business studies course. She

believed once his training was completed, he will have the capacity to

undertake a more sedentary occupation.

The Defendant's medical evidence

Mr Frank Ham

ln June 2011, Mr Ham, plastic surgeon, assessed the plaintiff at the request of

the defendant's insurer. Mr Ham used a Jamar dynamometer and determined

the plaintiff's strength of grip of his right hand was only 75 per cent of the

strength of his left hand. He said there was great variability by the plaintiff in

his replies, which made definite extent of neurological dysfunctíon not possible

to record. He accepted the impairment had stabilised.

Mr Damian lreland

ln october 2011 and May 2013, Mr lreland, hand surgeon, examined the

plaintiff at the request of the defendant's solicitor. ln 2011, Mr lreland said the

plaintiff presented as an honest recorder of the historical facts and showed no

tendency to exaggerate his symptoms.

38 ln 2013, he said he had difficulty in elucidating a clear history. The plaintiff

seemed uncertain regarding his current symptoms. Mr lreland noted that

there was no wasting of the intrinsic muscles and there was full opposition of

the thumb to all finger pulps. Sensation tested by two-point discrimination

was normal. He attempted to measure grip strength using the Jamar

dynamometer but the variation on both sides exceeded 20 per cent with three

successive measurements, and rapid exchange from right to left with the

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instrument also produced a variation greater than 20 per cent, invalidating the

test.

He diagnosed chronic Pain syndrome - right upper extremity. He was

unable to make a diagnosis of any significant physical problem affecting the

plaintiff's right upper extremity. He did not believe the plaintiff suffered any

serious physical problem affecting the right upper extremity. He said the

plaintiff's condition with respect to the initial laceration and subsequent carpal

tunnel release surgery had substantially healed. He was unable to objectively

measure the strength with the right hand. There was no evidence of wasting

of the right forearm musculature which would normally be present for a

genuine loss of grip strength following injury. He said the current symptoms

were consistent with the injury. lt was his opinion the plaintiff did not have an

incapacity for his pre-injury job description. There was no impediment to the

plaintiff gaining employment which requires use of a keyboard in a full-time

capacity.

Dr Amanda Sillcock

ln December 2012, Dr Sillcock, occupational physician, medically examined

the plaintiff at the request of the defendant's solicitor. Dr Sillcock diagnosed a

laceration to the right forearm which resulted in secondary carpal tunnel

syndrome. She said the plaíntiff had some sensory loss over the right thumb

consistent with the radial nerve distribution. She believed the plaintiff's

condition had stabilised and was unlikely to change in the foreseeable future.

She saíd the plaintiff's presentation was consistent with the stated symptoms

and alleged injury. She believed the plaintiff had a minor partial incapacity for

work caused by the right arm/hand injury. She said the plaintiff was fit to

undertake any of the following occupations: light hand packer; fork lift driver;

poultry food process; butcher's sales assistant; car park officer; machine

operator and traffic controller. She imposed restrictions on very heavy lifting

in excess of 15 kilograms.

VCC:AS l0chot v Brooktyn Meat procei.it"#ÍiJ

Gredit of the Plaintiff

41 The plaintiff is Sudanese. English is his second language and he gave his

evidence without the assistance of an interpreter. He studied English at

school in Sudan and continued his English language studies on arriving in

Australia at a multicultural centre in St Albans. The plaintiff was difficult to

understand. Hís accent was thick and he mumbled badly. He spoke quickly

and it was often difficult to understand his answers to questions.

42 Counsel for the defendant submitted that the plaintiff was not a credible

witness. Counsel said I should have reservations about the credit of the

plaintiff for the following reasons.

43 First, the plaintiff had been subject to traffic charges. I accept that the traffic

charges were at the low end and did not bring the plaintiff's credit into

disrepute.

44 Secondly, counsel for the defendant relied upon a statement in Mr Ham's

report that the plaintiff had not been working since the second operation. In

cross-examination, the plaintiff conceded he was working in a warehouse at

Tullamarine for eight months after the second operation. The Court of Appeal

has considered histories recorded by doctors and said:

"Two observations should be made about the history as recorded. First,what history was given to a doctor raised the questions as to what thehistory giver said and what the history taker recorded. Tooassume righton one side or the other would run counter to experience.

4s Accordingly, I reject the defendant's submission on this point.

Thirdly, there was an issue as to whether the plaintiff's presentation to doctors

accurately reflected his residual disability. When Mr Ham tested the plaintiff's

sensation using the two-point discrimination test, he found the plaintiff's

reaction so variable that an accurate and reliable finding was not possible. He

said there was some indication that the sensation over the thenar eminence

't0 Franklin v tJbaldiFoods Pty Ltd (1995) 21 MVR 314 per Ashley JA

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was s¡gnificantly decreased. Mr Ham said

"Unfortunately great variability by the worker in his replies made definiteextent of neurological dysfunction not possible to record."

47 Counsel for the defendant said that this is significant when the results of the

tests conducted by Dr Yassa in October 2010 showed a normal power of the

right hand and tests conducted by Fiona Mate, physiotherapist, in December

2010 showed grip in the strength of the left and right wrist was equal.

Counsel said the true position of the plaintiff is that recorded by Dr Yassa and

Ms Mate, and the plaintiff is misleading Mr Ham and Mr lreland. None of the

medical witnesses suggested the plaintiff was misleading. ln 2013,

Dr Middleton recorded a75 per cent loss of right hand grip strength.

48 Finally, counsel for the defendant submitted the plaintiff's memory was

selectively poor. He was evasive. I did not form the opinion that the plaintiff's

memory was poor and/or selective. The plaintiff asked for questions to be

repeated and he answered questions as best he could, given English is his

second language.

49 I was shown no film of the plaintiff, even though video surveillance of the

plaintiff was referred to in the index of the Defendant's Court Book. I can only

conclude that the film did not assist the defendant.

50 Overall, I found the plaintiff was a witness of truth.

Analysis of the evidence

51 I must make the assessment at the time of hearing the application.

Accordingly, I place greater weight on the most up-to-date medical evidence

of Mr Berger, Dr Middleton, Mr Deacon, Mr Brearley, Dr Sutcliffe, Mr lreland

and Dr Sillcock.

It was not in issue that the plaintiff suffered a compensable injury to the right

forearm and hand, the plaintiff being left hand dominant. All medical

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witnesses accepted the plaintiff suffered a laceration to the right wrist, which

resulted in debridement and exploration of the wound. Two months following

the surgery, the plaintiff complained of symptoms of median nerve dysfunction

of the right hand. A nerve conduction study was performed which was

consistent with carpal tunnel syndrome. Following surgery, the plaintiff

complained of residual median nerve weakness and sensory changes.

Dr Middleton thought that the major impairment was damage to the median

nerve involving major losses in grip strength and pinch strength, and also

dulling of sensation of the right thumb and index finger and the function of the

flexor tendons to the right thumb.

The majority view expressed by Mr Baldwin, Mr Deacon and Mr Brearley was

that there was no evidence of damage to the nerve but that the plaintiff had

persistent altered sensation and weakness of the right hand which would not

be assisted by surgery and which would not improve. Mr Berger said he

assessed the plaintiff as having damage to the flexor tendons and possibly the

median nerve in his forearm, although he had no information as to exactly

what structures were damaged. Mr Brearley said the injuries were

permanent.

Mr Ham accepted that there was an impairment which had stabilised.

Because of the great variability in measuring the strength of the right hand

with that of the left hand, he was not in a position to determine the definite

extent of neurological dysfunction.

Mr lreland had the same difficulty with measuring grip strength. He concluded

that the plaintiff had a Chronic Pain Syndrome of the right upper extremity and

was unable to make a diagnosis of any significant physical problem affecting

the plaintiff's right upper extremity.

I am less persuaded by the opinion of Mr lreland, because he did not address

the plaintiff's complaints of dimínished grip strength, intermittent numbness

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affecting the right thumb and intermittent pain in the right forearm extending

proximally from the scar to the elbow joint. He concentrated on the carpal

tunnel syndrome. Furthermore, he was the only doctor who diagnosed

Chronic Pain Syndrome of the right upper extremity. He said there was no

incapacity for his pre-injury work, which was at odds with the other medical

witnesses who expressed a view as to work.

Other than Mr lreland, of those medical witnesses who expressed a view in

relation to work, the víew was that the plaintiff should seek alternative

employment, and restrictions were imposed by Mr Deacon, Mr Brearley, Dr

Sutcliffe, Dr Middleton and Mr Baldwin.

Dr Middleton said the plaintiff had loss of hand grip strength and that he no

longer has the safe physical capacity to resume work as a butcher or in a

lesser skilled job, including labouring and slicing, due to the disability of his

right hand.

Mr Baldwin said he would not be surprised if the plaintiff was unable to

perform the very arduous, demanding and repetitive activity that he had

previously performed in meatworks. He thought the plaintiff was capable of

performing most activities of daily living. He said the plaintiff would be limited

by his altered sensation and diminished strength in the hand.

Mr Deacon said the plaintiff's injuries were permanent and he needed to seek

alternative work. He said the plaintiff would not be able to perform work that

involves strong repetitive work with his right arm, including lifting, twisting,

holding, grabbing, gripping or using a pistol grip.

Mr Brearley said the plaintiff could not return to pre-injury duties because of

ongoing symptoms in the right forearm and hand. Mr Brearley said the

plaintiff's capacity for employment is now less than prior to the accident

because of the ongoing discomfort and sensation of numbness in his hands.

He said the díscomfort and pain limits the plaintiff in returning to heavy manual

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labour. He said the plaintiff would need to obtain slightly lighter work. He said

he should avoid lifting beyond 5 kilograms with the right arm and should not

carry out repetitive movements with the right arm. He thought he would be

suitable for medium manual type work.

63 Dr Sutcliffe said the plaintiff had suffered total incapacity for his pre-injury

duties. She said the plaintiff's physical limitations of the right upper limb

prohibit heavy manual handling work. She said he had restrictions on

persistent heavy lifting, manipulation, repeated movement, pushing, pulling

and lifting using the right upper limb.

Pain and suffering consequences

It is necessary for me to consider whether the pain and suffering

consequences satisfy the statutory test. The plaintiff said he has constant

aching pain in his right forearm and hand. lf the scarring on the right wrist is

knocked, it causes pain up his arm. He has obtained casual work

approximately four days a week with ALC in the meat processing industry in

Colac. He uses a knife with his left hand. He tries to protect his right hand

while doing work but it feels like it is "killing him". ln September 2013, he had

three to four days off work due to pain and swelling in the right forearm, and

attended a general practitioner, Dr Oludare, because of the pain.

65 The plaintiff reported the pain he suffers to Mr Brearley, Dr Middleton,

Mr Berger and Mr lreland. Mr lreland reported that the plaintiff complained of

pain that circumferentially affects the entire right upper extremity from the

wrist to the shoulder. The pain is episodic but the plaintiff was unable to say

what precipitates or what eases the pain, or how often it occurs or how long it

lasts.

The plaintiff reported to Mr Brearley that he occasionally had pain through the

whole of the right arm from the shoulder to the wrist. Mr Brearley said the

plaintiffls discomfort and pain in the wrist and forearm limit hís ability to return

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to heavy manualwork

The plaintiff reported to Dr Middleton that he had right hand weakness and

pain and disturbance at night where the pain extends from the right shoulder

into the hand. The plaintiff reported numbness and weakness in his right

hand, in particular numbness in all fingers, which had improved a little, and

weakness of pinch grip.

No doctor suggested that the plaintiff's complaínt of pain was inappropriate

Accordingly, I accept the level of pain the plaintiff reports.

The plaintiff's evidence was that he was prescribed medication. He currently

takes Panadol but it only provides very limited relief for a short period of time.

He reported to Mr Brearley that he takes Panadol occasionally. I accept that

the plaintiff's level of medication is at the low end of the scale.

The plaintiff has undergone two surgical procedures and is still having

persistent problems. The medical evidence is that there is no further surgery

that will assist the plaintiff. Dr Middleton said that his treatment is limited to

conservative physical management.

The plaintiff's evidence was that his right hand and arm are now weak. He

cannot grip things properly. He cannot flex his wrist and gets immediate pins

and needles in his fingers. He has constant loss of feeling around the base of

his right thumb.

Mr Brearley, Dr Middleton and Mr Berger all accepted that the plaintiff had

weakness and sensory changes in his right hand, specifically the right thumb.

The plaintiff has trouble lifting. He drops things frequently. He cannot now do

the work that requires constant use of his right hand or any lifting or gripping

with both hands. This was supported by the evidence of his sister. The

plaintiff's sister, Kristina Chol, provided an affidavit in which she said she

noticed the restrictions due to the plaintiff's injury. She had purchased new

JUDGMENTChol v Brooklyn Meat Processors Pty Ltd

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lounge chairs recently and while the plaintiff tried to help with the lifting, he

was quite restricted, and she saw that he avoided straining his right side. The

same applied when they purchased a new television.

74 I accept that the plaintiff has difficulty lifting and this is a consequence I can

take into account.

75 The plaintiff's evidence was that he was a hard worker and had worked all his

life in physical jobs. His work was a very important part of his life and part of

his social life as well.

76 The evidence was that the plaintiff returned to work promptly after surgery.

He has attempted study, passed courses and applied for jobs but has been

unsuccessful. He is now working at Colac in the meat industry, performing

work that doctors say he should not do. His evidence is the work is causing

him pain and swelling of the right forearm. In September 2013, he was off

work for three to four days due to the pain.

77 I accept that the loss of his ability to engage in heavy manual work is a

significant consequence to this particular plaintiff, given his age of thirty-two

years, his work experience and his attempts to obtain alternate employment in

Australia.

78 To the plaintiff's credit, he has attempted to undertake study courses but his

history is that he tends to return to labouring work, the only work he can find.

79 The plaintiff's evidence was that prior to the work injury, he played competitive

soccer with a Sudanese community group. Since the injury, he has stopped

playing soccer because he tries to protect his right hand and was concerned

that he would fall onto his right hand. ln cross-examination, he agreed he last

played soccer five months ago, but only for five or ten minutes before he

stopped. Before the hand injury, he played the full game.

8o The plaintiff said he used to play the drums in a group, but has not played

JUDGMENTCholv Brooklyn Meat Processors Pty Ltd

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since his injury because of the pain and problems with his right wrist and

hand. He said he plays the drums at home for exercise.

I accept the plaintiff's evidence in relation to the consequences of his injury

and its effect upon his ability to play soccer and play the drums.

The following consequences were not subject to cross-examination; namely,

sleep disturbance, the effect of knocking his scarring and his inability to carry

his young daughter for longer than short periods. Accordingly, I can accept

the plaintiff's evidence on these consequences.

The plaintiff said his sleep is disrupted. lf he rolls over onto his right hand or

right wrist, the pressure causes pain and he wakes immediately. He has

trouble getting back to sleep. He reported sleep disturbances.

The scar on his right wrist is raised and obvÍous. Rubbing of the scar causes

immediate pain up his arm.

The plaintiff's evidence is that he has a three-year-old daughter. He is able to

pick up his daughter but he can only carry his daughter for short periods of

time. Given the medical evidence of Mr Owen and Dr Sutcliffe, I accept that

this is a consequence I can take into account.

Counsel for the defendant submitted that the plaintiff was able to perform 80

hours of community work, which was manual work at the Buddhist temple and

with the Salvation Army, in a short period of time. The plaintiff's evidence was

he cleaned windows, removed graffiti from a wall, painted, put prices on

clothes, which he took to the sale room, and swept floors. I accept the work

was light manual work, unlike the physical work he has performed since

arriving in Australia.

Counsel for the defendant submitted the plaintiff has retained the capacity to

work, drive, play the drums and play soccer. I accept that the plaintiff can still

work; however, the evidence is that the plaintiff has only been able to find jobs

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labouring in the meat industry, which the plaintiff said requires him to use both

hands, and is hard work on occasions. lt is work the doctors say he should

not be performing because of his work injuries. I accept the plaintiff has

attempted to play soccer but only for limited periods of five to ten minutes. I

also accept the plaintiff's evidence that he no longer plays the drums in a

group, but plays them at home for exercise. I accept the plaintiff drives a car.

Accordingly, I reject the defendant's submission that the plaintiff has retained

the ability to work, play soccer and play the drums. lt cannot be said that the

plaintiff has retained the capacity to work when the only work he can obtain is

work the medical witnesses say he should not be doing. lt cannot be said that

he has retained the capacity to play soccer and the drums given the very

limited involvement he can now have in those activities.

For a man of the plaintiff's age of thirty-two years and language skills, the loss

of his ability to engage in unrestricted, heavy manual labour, the only type of

work he has performed in Australia, represents a serious injury in terms of the

statutory test. Further, he suffers pain, his sleep is disturbed and he can no

longer participate in recreational activities of soccer and drumming because of

the pain and the fear of exacerbating his pain, consequences which I also

consider to be serious.

Taking all the evidence into account, I am satisfied that it is fair to describe the

pain and suffering consequences of the plaintiff's right forearm and hand as

being "more than significant" or "marked" and properly regarded as "very

considerable" when judged by comparison with other cases in the range.

ln reaching that conclusion, I have made a comparison with other cases in the

range of possible impairments. No element of the mental component is taken

into account in this assessment. lndeed, the mental element is required to be

excluded by s134AB(38)(h) of the Act. I am satisfied that the right forearm

and hand injury is permanent, given the evidence from all medicalwitnesses.

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91 The plaintiff therefore satisfies the narrative test for pain and suffering

ln such circumstances, the plaintiff's application seeking leave to bring

proceedings for damages for pain and suffering in respect to the right forearm

and hand is successful.

chot v Brooktyn Meat proceJ.it""#r=irlVCC:AS 20