Aburrow v Network Personnel
[2011] VCC 299
•25 March, 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-08-03465
| DEAN ABURROW | Plaintiff |
| V | |
| NETWORK PERSONNEL PTY LTD | First Defendant |
| WORKSAFE VICTORIA | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE KENNEDY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 & 17 March 2011 |
| DATE OF JUDGMENT: | 25 March, 2011 |
| CASE MAY BE CITED AS: | Aburrow v Network Personnel & Ors |
| MEDIUM NEUTRAL | [2011] VCC 299 |
| CITATION: |
REASONS FOR JUDGMENT
Catchwords: application for leave to bring proceedings for damages pursuant to s.134AB of the Accident Compensation Act 1985 (“the Act”) for pain and suffering- whether injury to right hand is a “serious injury” within the meaning of s134AB(37)(a) of the Act
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Ryan with him | Nowicki Carbone Lawyers |
| Mr G. Worth | ||
| For the Defendant | Mr P.D. Elliot QC with him | Lander & Rogers |
| Mr C. O’Sullivan |
Background
1 The plaintiff was born on 23 August 1965 and is now aged 45 years.
2 After completing year 10 at Preston Technical School he performed various manual jobs including as a chicken boner, before commencing with Julius Marlowe (Florsheim shoes) as a heel trimmer in 1988 with concurrent work as a forklift driver.
3 On 13 October 1988 he suffered a significant crush injury to the tip of his right index finger which required reconstructive surgery. He took some time off work but returned to full-time manual duties on 17 January 1989 before resigning from Florsheim shoes on 20 February 1989. He later issued proceedings in relation to this injury and received a settlement in an amount of $25,000.
4 Between 1990 and 2005, the plaintiff engaged in a variety of other non-skilled work (including as a welder, trades assistant, and airconditioning service technician) although he did not engage in any boning.
5 The plaintiff commenced employment with the defendant on 13 February 2005 wherein he was hired out to work at Tasman Meats as a bandsaw operator.
6 On 10 August 2006 the plaintiff sustained an injury to his right hand. He was pushing a cut of meat through the bandsaw when the saw connected with the inner part of his right hand and sliced it open. He was admitted to Western Hospital where the wound was debrided and a full thickness skin graft applied. He was certified unfit for all work until 22 September 2006 but was ultimately certified for unrestricted work from 3 October 2006 which he undertook.
7 In January 2007 he resigned his employment with the defendant. He subsequently worked as a knifehand with RH Collinson & Co Pty Ltd between February to April 2007, and, from April 2007, at the Footscray market as a forklift driver.
8 Since August 2008 the plaintiff has been working as a forklift driver for the Just Group where he remains to this day, working a four day week from 7.00 am to 3.30 pm with some overtime.
9 The plaintiff seeks leave to bring proceedings for the recovery of damages pursuant to s.134AB of the Accident Compensation Act 1985 (“the Act”) for pain and suffering only.
10 Mr Ryan, who appeared for the plaintiff with Mr Worth, defined the injury as “a severe laceration of the inner right hand which required plastic surgery involving skin grafting to the base of the right index finger…”[1]
[1] Plaintiff’s Statement of Issues dated 11 March 2011 at paragraph 211 The plaintiff alleges that the consequent impairment to the body function of the right hand is a “serious injury” within the meaning of s.134AB(37)(a) of the Act.
Issues
12 Mr Elliot SC, who appeared with Mr O’ Sullivan for the defendant, accepted that the plaintiff had suffered a compensable injury but denied that it was serious.
13 The defendant also submitted that, to the extent the plaintiff had ongoing consequences, the plaintiff was unable to establish that they were attributable to the 2006 injury rather than the earlier impairment following the 1988 injury.
Principles
14 In terms of pain and suffering, the plaintiff must show that the consequences to him of any impairment, when judged by comparison with other cases in the range of possible impairments, may be fairly described as being more than significant or marked, and as being at least very considerable.[2]
[2] See s.134AB(38)(c) of the Act; Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33.15 In determining whether the consequences are “serious” within the meaning of s.134AB of the Act in circumstances where a plaintiff has returned to work, I am also assisted by a decision of the Court of Appeal in Stijepic v One Force Group Aust Pty Ltd,[3] wherein Ashley JA and Beech AJA refer to Dwyer v Calco Timbers Pty Ltd (No 2,)4 and state (at [44]):
“…the significance of what has been lost, which bears upon
the seriousness of consequences, may be informed, to anextent, by what is retained…”[3] [2009] VSCA 181 4 [2008]VSCA 260
16 Their honours also refer to the dicta of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd,[5] at paragraph [24], whereat his Honour stated:
“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…”
[5] [2006] VSCA 292
17 Ashley JA and Beach AJA commented (in Stijepic)[6] in relation to these words (at [47]):
[6] [2009] VSCA 181“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. In this case, the appellant’s resumption of
educational and employment activities, and his employment
prospects, have played but a small part in our conclusion
that the pain and suffering consequences of his
compensable injury do not satisfy the statutory test.”
18 In terms of any causation issue, I accept that the Act contemplates that a consequence may have a multiplicity of causes, including a multiplicity of compensable injuries as discussed in the Court of Appeal decision of Grech v Orica Australia Pty Ltd & Anor.[7]
Evidence
Plaintiff’s Evidence
Written evidence
[7] [2006] VSCA 172 at paras 58, 64 and 65 per Ashley JA.19 The plaintiff filed and served four affidavits[8] and was cross examined.
[8] Affidavits of 8.4.08; 19.8.09; 27.8.09 and 20.12.1020 A summary of his claims appears below.
pain and restrictions
•
he claims that he suffers severe restriction in the movement of the fingers of his right hand and the right hand itself in that he has great difficulty in straightening his right index finger or making a fist with his right hand;
•
he claims that the “pain and restrictions” he suffers are worsened with changed weather, particularly cold conditions;
activities of daily life
•
he has great difficulties at home and avoids activities requiring strength or dexterity in his right hand such as opening jars. He has difficulties with activities requiring even moderate grip strength such as mowing the lawn. His ability to undertake handyman tasks has also been compromised;
•
as he is right hand dominant, the injury impacts on every activity he undertakes;
•
his ability to enjoy cooking has been affected and he no longer hosts dinners at his house;
sports
•
he no longer plays American football as he is too conscious of the injury;
•
the enjoyment of sport is reduced generally but particularly sports that require throwing and catching. Other sports mentioned included cycling and playing pool;
•
he also claimed that the injury has affected his ability to perform his duties as assistant coach for his sons’ football team;
• he has previously obtained trophies for netball and gridiron; drawing
•
he claimed that the injury has also impacted on his enjoyment of drawing which he now tends to avoid;
driving a car
•
he is able to drive a car but only with difficulty and if it has power steering;
use of apparatus;
•
he wears a thermal glove on his hand in colder months and a hand brace during sedentary conditions;
opportunity to work in boning
• he claims that he ceased his training as a boner and lost the opportunity to become a boner as a result of the injury. 21 There were other affidavits filed which generally corroborated these claims.
22 Thus in an affidavit of Ms Jodi Mulvay (a previous partner) of 4 August 2009, Ms Mulvay swears that the plaintiff’s pain is particularly bad in cold weather and that the plaintiff has trouble sensing temperature. She also confirmed that the plaintiff handles a football only with his left hand and that he used to enjoy drawing but no longer does so.
23 In an affidavit of Ms Amanda Mulvay (described as a de facto sister-in-law) of 28 August 2009, Ms Mulvay confirmed that the plaintiff’s use of his right hand had been reduced; that he had loved to draw but was now no longer able to do so. Further that he was generally less active and that the injury had affected his cricketing ability and ability to undertake household maintenance.
24 In an affidavit of 15 July, 2009, Mr Ramsay, a friend of the plaintiff, stated that the plaintiff had trouble playing indoor cricket.
25 Finally, in an affidavit of Mr Morrison, a work colleague, of 19 August, 2009, he suggests that that plaintiff favours his left hand and that Mr Morrison and others try to complete heavy lifting and manual labouring tasks so the plaintiff does not have to struggle with lifting at work.
Oral evidence
26 The plaintiff was cross-examined. There appeared to be some overstatement of his desire to engage in boning (given his objective conduct) but he otherwise generally gave his evidence in a straightforward manner.
27 Much was made of his serious history of alcohol and substance abuse which has included treatment at Odyssey House and admission to a detox unit at the Western Hospital. However, such history has ultimately been of little relevance to the issues before this Court. Although the plaintiff has experienced significant problems in these areas, he said that he had not taken illicit drugs for six years and had been alcohol free for 12 weeks. He is to be congratulated and encouraged in these steps.
28 The plaintiff explained that his current work, which involved driving a forklift, is “easy” for him. He also agreed that there was not really a great deal of lifting at work as there were a lot of women employees.
29 Insofar as any pain and restrictions were concerned, he agreed that he had received no ongoing treatment although he “occasionally” took over the counter painkillers. He also accepted that he could grip most things to a certain degree.
30 In terms of his daily life, he had been boarding at a friend’s house for several years which he shared with two other friends. There were no “dinner parties” at this house. Moreover, a girlfriend of one of the men cleaned the house twice a week while a lawnmower man took care of the garden.
31 The plaintiff agreed that he was “now” ambidextrous and used his left hand more than his right hand. He continued to write with his right hand but adjusted by using different fingers. He also fairly conceded that there was nothing he can’t do if he put his mind to it. Under re-examination, he explained that he had needed to compensate with his left hand which he had done so. Further that his left hand has become stronger than his right hand now although it was originally the reverse.
32 In terms of sports, he had stopped playing gridiron in 2004 and netball in the early 1990s. Prior to 2006, he had also only played indoor cricket “off and on” similar to how often he played golf.
33 He was now head coach of his sons’ under 14 football team and was visibly passionate about this role. This involves turning up to training on Tuesdays and Thursdays as well as games on Sundays. He also prepared game plans on other nights in the week.
34 He also assisted a coach with his children’s baseball team (run on an alternate season basis with football) which involved Monday and Wednesday nights and games on Friday night.
35 In terms of drawing, he said that he had drawn tattoos for himself and his friends. Although he accepted that if he tried really hard he was still capable of doing so, it would not be as good and he would not get pleasure from it.
36 In terms of driving, he accepted that he took his children out in the car to go and see family who lived in the country.
37 He was no longer really socialising with friends because he had stopped drinking alcohol but he had friends over to play the occasional game of pool ( he has a table at home).
38 In terms of apparatus, under re-examination he explained that he wore a brace at night and a thermal glove during colder months.
39 In terms of boning, the plaintiff claimed that he had “plans” for boning but he could only work with great difficulty with his hand. However, as indicated already, the plaintiff worked in boning shortly after he left school in about 1982 and 1984. However, from around 1988 up until the time he commenced working with the defendant in February 2005, the plaintiff did not work as a boner. During his time with the defendant, the plaintiff said he was working on the bandsaw but was doing “a little bit of boning and learning boning” also. This was apparently “in breaks” from his normal duties on the bandsaw.
Medical Evidence
Radiology
40 In a radiology report of 14 July 2008 no convincing osseous or joint abnormality is seen involving the hand or wrist. Disruption of the palmar soft tissues is suggested on lateral film.
41 In a further report of 24 August 2009 a comminuted oblique fracture is noted through the neck of the 5th metacarpal bone (apparently related to another injury). Mild volar angulation is noted in the bony fragments.
Plaintiff’s Treaters’ Reports
42 A medical administrator from the Western Health completed a report of 26 February 2010 describing events when the plaintiff came to the Emergency Department of the Western Hospital in the afternoon of 10 August 2006. The plaintiff’s wounds were debrided and he was given a full thickness skin graft. Further, the report states that:
“The flexor sheaths and tendons and the radial and ulnar neurovascular bundles were all intact. There were superficial lacerations at the base of the second finger. He was discharged later in the day.”
43 He was later seen on 7 September and 21 September 2006 when the wound had essentially healed. At that time the plaintiff was able to make a full fist and sensation was normal. He was re- assessed on 3 October 2006 when he was noted to be “healed completely” and he was advised that he could return to work.
44 Dr Maurice Korman was a general practitioner at the Blackshaw’s Road Medical Centre Pty Ltd. In a short report dated 13 October 2006 addressed to Ms Campbell-Smith, he notes that the plaintiff injured the right hand with a band saw and was operated upon on 17 August 2006. He describes how the plaintiff had been sent back to work two weeks prior but that the right index finger is still “stiff with limited flexion and extension.”
45 Ms Janelle Kilcullen, a physiotherapist of Western Hand Therapy, also completed a report on 19 October 2006. This report describes the plaintiff’s main problems as “intermittent stiffness and oedema” and goes on to say:
“Composite flexion leaves the tip of the index finger around 3 cm from the palm. The index finger remains moderately swollen. His grip strength measured 42 kg/force on the left and 40 kg/force on the right, which are within normal limits. His score on the upper extremity functional index is 47/80, indicating a mild-moderate level of difficulty with many common functional tasks.”
46 Ms Kilcullen further opines that the restriction is likely to be due to the residual swelling and the thickened scar tissue. Further, that the reactive swelling is not uncommon and should “settle over time”. She hoped he would “improve quickly”.
47 Dr Lee, general practitioner, completed three reports during 2009 and 2010.
48 In his report of 30 August 2009 Dr Lee noted that the plaintiff had attended once in 2006 following the hand injury which he described as a “shock.” He described that the right hand grip was “weak, stiff and painful.” The plaintiff was unable to make a firm fist. However, Dr Lee noted that there was a lapse of two and a half years until the plaintiff again attended the clinic on 19 January 2009.
49 In his most recent report of 17 August 2010, Dr Lee noted that he had referred the plaintiff to a hand surgeon on 12 January 2010. His own consultations since 30 August 2009, however, had been related to the plaintiff’s depression and anxiety.
50 Mr Thomas, hand surgeon, completed a short report of 15 January
2010. In that report he noted that the plaintiff had been left with: “… residual problems of stiffness in this right index finger, altered sensation in the radial digital nerve distribution as well as considerable cold intolerance.”
51 His report is also concerned with “Dupuytren’s condition” which condition was not relied upon by the plaintiff. However, he noted:
“ …with excision of his Dupuytren’s, I think we may be able to improve his contracture and range of movement but I do not believe that this would improve either his sensory abnormality or cold intolerance symptoms and indeed surgery for Dupuytren’s may make these worse.”
Plaintiff’s Medico-Legal Reports
52 Mr Chris Haw, hand and orthopaedic surgeon, completed two reports of 24 July 2009 and 30 October 2009. In his report of 24 July 2009, Mr Haw describes the plaintiff’s index finger as “extremely painful in the cold weather” and that he has “constant pins and needles.” He concluded that the patient actually divided the radial neuro-vascular bundle and probably damaged the ulnar digital nerve to the volar aspect of the right index finger as well as sustaining skin loss. In his opinion, the general prognosis was one of ongoing problems unless the problem of neuroma was addressed and possible reconstruction of the neurovascular bundles was considered or alternatively amputation. However, in his opinion, the plaintiff should obtain a further opinion from a specialist hand surgeon as to how best to manage his problem.
53 In his further report of 30 October 2009, Mr Haw further opines as to the plaintiff’s condition following receipt of notes from both the Western and Northern Hospitals. He expresses surprise that an entry of 24 August 2006 from those notes suggests that the digit was neuro-vascularly intact and was also surprised that the wound was said to be healed and the plaintiff able to make a full fist. Overall, he did not feel that there was any aspect of his report he needed to modify, notwithstanding these notes.
54 Mr Murray Stapleton, plastic and hand surgeon, completed two reports of 17 August 2009 and 14 December 2009. In his first report of 17 August 2009, he describes the right index finger as painful particularly on a cold morning. The flexion and extension capacity was diminished and the grip significantly reduced. The plaintiff also had a partial sensory loss. However, no further surgery would increase the plaintiff’s capacity as far as his function was concerned.
55 In his further report of 14 December 2009, he was asked about the earlier injury in 1988 and states that one can never be certain about an assessment of what contribution each of the injuries has played, but that a reasonable assessment would be that 50 per cent of each of those two injuries had contributed to his lack of normal function. He furthers states that the note from the Western Hospital had been provided by perhaps a junior resident in the context of the finger being healed completely and:
“ … perhaps relates to the scarring and skin graft, but it did
not address the question of functional abnormality.”
Defendant’s Medical Reports
56 The defendant relied on two reports of Mr Anstee, who is a plastic and reconstructive surgeon, of 18 January 2010 and 1 March 2011.
57 In his first report, Mr Anstee described the injury to the palmar surface at the base of the right index finger and the adjacent part of the palm of the right hand involving soft tissue and skin only. In his view, nerves and tendons were intact. There was a reduced range of movement but he had no way of knowing how much of that reduced range related to the injury of 10 August 2006 and that on 3 October 1988. He describes the plaintiff’s prognosis as “good to excellent.”
58 In his further report of 1 March 2011, he described the range of movement over the right thumb and right index finger as variable. He further opined that sensation over the palmar surface of the right thumb and of the right index finger was “normal.” He had no reason to believe the plaintiff was having any difficulty with activities of daily living from a physical perspective.
Summary
59 There was general support for the existence of a compensable injury as conceded by the defendant. The main divergence in the doctors was whether or not there was any nerve damage. Both doctors Thomas and Haw supported such damage, while Mr Stapleton also suggested there was “partial sensory loss.” However, the hospital notes and Mr Anstee’s reports weighed against such a finding.
60 The plaintiff’s evidence included a statement in his most recent affidavit of 20 December 2010 that he had sustained a burn to his right index finger when he was manning a barbecue and did not notice it due to loss of sensation in his right index finger (at paragraph 6). This claim was not challenged, and was supported by the evidence of Ms Jodi Mulvay (who also suggested that he had trouble sensing temperatures) and also in progress notes of the physiotherapists (see entry of 8 January 2010). To the extent it is necessary to find, then, the better view would appear to be that the plaintiff has suffered some nerve damage consistent with the views of Mr Haw and Mr Thomas; the real issue remaining how this actually affects him.
61 A further issue was whether any further surgery was warranted which possibility is raised by Mr Haw. However, he readily deferred to a more specialised hand surgeon on this issue. That specialist is Mr Stapleton who opined that no further surgery was warranted. I accept this view given his more specialised qualifications.
Findings
62 Consistent with the defendant’s concession, I am satisfied that the plaintiff suffered a compensable injury on 10 August 2006 as he has alleged, namely a laceration at the base of the right index finger which also damaged the nerves.
63 Moreover, I am further satisfied that there is an ongoing impairment of the right hand resulting from this compensable injury.
64 The chronology suggests that the plaintiff had been able to return to work after the 1988 injury. Moreover, the opinion of Mr Stapleton was that 50% of the 2006 injury contributes to his current impairment. In those circumstances, I am also satisfied that the consequences the plaintiff suffers today are materially contributed to by the 10 August 2006 injury.
65 Given the effluxion of time, I am further satisfied that the impairment is permanent in the sense that it is likely to last during the foreseeable future.
66 The real issue in this case is whether the plaintiff has established that the pain and suffering consequences he suffers are “very considerable.”
Pain and Suffering Consequences
67 I accept that the plaintiff suffers from various restrictions in the movement of the fingers of his right hand and has difficulty in straightening his right index finger. He also has a loss of sensation and is worse in cold weather.
68 The plaintiff referred to a number of other “finger cases” considered by other judges of this Court. However, I did not find such reference of great assistance. Each case must be decided on its own facts.[9] Moreover, in a number of those cases, there was evidence of significant or constant pain.[10]
[9] See also Sutton v Laminex Group Pty Ltd [2011] VSCA 52 at [89] citing Stijepic v One Force
[10] Graham v Qantas Airways [2009] VCC 0537 at [49]; Sasalu v Coburg Services Pty Ltd [2009]
69 In the present case there is little, if any, precise evidence as to the constancy and level of pain. Although there are references to the plaintiff’s condition worsening in cold weather, the plaintiff otherwise says little about it, and nor do the doctors. Significantly, the plaintiff also manages any pain by only “occasionally” taking over the counter painkillers.
70 The plaintiff’s return to work is not decisive and I must consider the whole of the evidence pursuant to Stijepic,[11] above. However, although there is some reference to difficulties in the affidavit material,[12] the plaintiff’s evidence in court was not only that he was able to work but that he found the work “easy.” There was no evidence that the plaintiff is currently managing his work with great difficulty, for example, through access to regular medication or extra sleep.
[11] [2009] VSCA 181[12] Second Affidavit of 19.8.09 at para 1971 I accept that there has been impact on the plaintiff’s daily life. However, he appears to have adjusted to a point where his left hand has become stronger than his right hand. There has been an impact on his ability to draw. However, in his oral evidence he said that the sort of things he used to draw as a hobby were tattoos for himself and his friends. It is not evident that this would have remained a significant part of his life.
72 In terms of the expressed desire to be a boner, at most, he appeared to be engaging in some boning “on the side” with the defendant. It is also highly significant that, notwithstanding a varied work history, the plaintiff had not engaged in any boning between 1988 and 2005. Given his own apparent disinterest in boning over many years, I therefore do not accept that any inability to bone would really be of importance to the plaintiff.
73 The plaintiff may not be able to play sports as well as he might have in the past. However, he is now 45 years old and would be unlikely to engage in sports, such as gridiron, as he did in the past.
74 It is also important in considering this application to consider what is retained pursuant to Stijepic,[13] above. The plaintiff currently enjoys stable employment and appears to have filled his life with a significant role in his children’s sporting pursuits. Thus he is now the head coach of his sons’ football team and he clearly enjoys this role immensely. He may not be as social as he once was, but this appeared largely due to his current efforts to keep away from alcohol, which efforts do him credit. The plaintiff instead enjoys an occasional game of pool at home, a well maintained home, and regular drives to the country with family.
[13] [2009] VSCA 18175 In all the circumstances, the plaintiff has not satisfied me that the consequences to him of his impairment, when judged by comparison with other cases in the range of possible impairments, may be fairly described as being more than significant or marked, and as being at least very considerable.
Conclusion
76 The application will be dismissed.
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Certificate
I certify that these 21 pages are a true copy of the reasons for decision of Her
Honour Judge Kennedy, delivered on 25 March 2011.
Dated: 25 March 2011
Sonja Mileska
Associate to Her Honour Judge Kennedy
Group Aust Pty Ltd [2009] VSCA 181 at [42]
VCC 1283 at [33].
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