Alexander v Nareena Industries

[2015] NSWDC 338

District Court

New South Wales

Medium Neutral Citation:

Alexander v Nareena Industries [2015] NSWDC 338

Hearing dates:

10 November 2015

Date of orders:

10 November 2015

Decision date:

10 November 2015

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Award for the plaintiff for $13,891.50 for 15% loss of efficient use of plaintiff’s right hand

 

Award for the plaintiff for $1,190.70 for 5% loss of efficient use of plaintiff’s left index finger

 

Award for the plaintiff for $19,860 pursuant to s 67

 

Defendant to pay plaintiff’s hospital, medical and like expenses

 Defendant to pay plaintiff’s costs

Catchwords:

WORKERS COMPENSATION - Coal miners – Claim for lump sum compensation for the loss of efficient use of each hand – Alternative claim available - Assessment of quantum – Need for appropriate medical evidence

Legislation Cited:

Workers Compensation Act 1967

Cases Cited:

David v Edinburgh Corporation [1953]

Category:

Principal judgment

Parties:

Jacob Peter Alexander (Plaintiff)
Nareena Industries (Defendant)

Representation:

Counsel:
Mr D Benson (Plaintiff)
Mr B Odling (Defendant)

  Solicitors:
Slater & Gordon (Plaintiff)
Sparke Helmore (Defendant)

File Number(s):

RJ423/2014

Publication restriction:

No

Judgment

1. HIS HONOUR: The plaintiff Jacob Peter Alexander claims lump sum compensation under s 66 for 15% permanent loss of efficient use of his left hand and for 22.5% permanent loss of efficient use of his right hand, and a consequential lump sum under s 67 for pain and suffering, anxiety and distress resulting from those losses. The issue tendered for my determination is, in essence, quantum.

2. There is no dispute that on 28 December 2007, the plaintiff sustained crush injuries to each of his hands arising out of and in the course of his employment as a coalminer at the Chain Valley Colliery. The description of the injury provided by the employer is this:

“Jacob attempted to adjust a half inch diameter wire guide rope which was ‘riding high’ on a vertical steel roller. As he did this, both hands became caught between the wire rope and the roller. This resulted in lacerations to both hands, broken bones in the right index and right second finger which required surgery at John Hunter Hospital on Friday evening 28 December 2007.”

3. At the John Hunter Hospital, the plaintiff came under the care of Dr Stephen Brindley, an orthopaedic surgeon specialising in surgery of the hand and the upper limb. According to the operation record made by Dr Brindley, the plaintiff sustained an almost complete amputation of the pulp of the distal phalanx of the right middle finger and a subtotal amputation of the right index finger through the base of the distal phalanx. He also sustained a burst laceration to the radial side of his left index finger. It was on those three fingers that Dr Brindley operated on 28 December 2007. The doctor operated on the left index finger first. He found a “burst” on the radial side which was extended surgically by a mid-lateral incision. Exploration of the wound revealed that the flexor sheath was intact and the radial digital nerve and artery were also intact in that finger. Simple debridement of the wound was performed and closed with sutures. The surgeon’s attention was then directed to the plaintiff’s right hand. He explored the tip of the middle finger which showed the entire pulp of the finger was hanging on three small structures which the doctor found difficult to identify. He thought there was almost complete soft tissue detachment. Sharp debridement of the wound surface was performed. No significant nerve, artery or vein structures were identified in the pump tissue that could potentially be repaired. The examination was performed under magnification. The circulation to the pulp of the tissue was poor prior to surgery. The pulp and distal wound surfaces were carefully debrided and then the pulp was sutured back in place. The separation of the nail bed from the pulp was repaired with larger scale sutures. Simple dressings were then applied to the finger and it was infiltrated with an anaesthetic as a local digital nerve block. In the index finger, there was said to be an amputation of the fingertip through the base of the proximal phalanx, leaving the base of the distal phalanx in place with the extensor tendon attached to it. The flexor tendon was attached to the distal fragment. The wound was carefully washed out and the wound surface was again sharply debrided. There was more soft tissue attachment to this fingertip than to the other fingertip and the doctor thought that there was a likelihood of a successful reconstruction. Care was taken not to damage any of the remaining soft tissues. Two K wires were inserted into the index finger and then driven backwards through the base of the distal phalanx and across the distal interphalangeal joint. They achieved a satisfactory reduction of the fracture and provided good stability and good rotational alignment according to Dr Brindley’s operation report. The K wires protruded through the end of the finger and were bent over the outside of the skin. The skin margins were then sutured into place. The fingernail was replaced back in the basal nail fold and again the rest of the finger was sutured up. Simple dressings were applied to the index fingertip. The plaintiff was discharged after his recovery from the anaesthetic.

4. He was required to see Dr Brindley again in his rooms on 17 January. There is a report from Dr Brindley bearing date 22 January 2008 which clearly relates to the plaintiff’s attendance upon him on 17 January. It was then three weeks after the plaintiff’s injury. The doctor’s report continues thus:

“At the time of his injury, there was a laceration to the radial side of the left index finger and this was surgically explored but no nerve injury was identified the wound was simply closed and has healed well. On the right side, there was degloving of the pulp to the middle finger which was almost complete and there was a compound injury to the index fingertip with fracture through the base of the distal phalanx and injury to the nail bed and major soft tissue disruption.

These injuries have been repaired and appear to be healing reasonably well. The sutures have been removed today. There is some necrotic skin along the margins of the fingertips but this should separate gradually. He has some sensation to the index fingertip but there is very poor sensation at the middle fingertip where the pulp was degloved. This fingertip, however, does seem to have some perfusion and we will preserve things as they are for the time being.”

He made arrangements for the plaintiff to be seen in three weeks from then and to have some X-rays performed.

5. An X-ray of the plaintiff’s right index finger was taken on 5 February 2008 and reported by Dr Walker on the following day. That is said to show a transverse fracture of the terminal phalanx parallel to the interphalangeal joint. The displacement was minimal. The plaintiff saw Dr Brindley on 7 February 2008. That was six weeks after the injury. The doctor noted continued healing. He makes no mention about the plaintiff’s left index finger, indicating that as far as he was concerned, it had completely healed. In further reports from Dr Brindley, there is no reference at all to the plaintiff’s left index finger. On 7 February, Dr Brindley removed the K wires from the plaintiff’s index finger and the doctor expressed the view that the fracture at the base of the distal phalanx was healing in good position. He thought then that the plaintiff could return to restricted duties but it appears from the oral evidence given that none were made available to the plaintiff.

6. The plaintiff went back to see Dr Brindley on 6 March, two months after his injury. Dr Brindley thought that the pulp of the middle finger of the right hand had healed “extremely well” and that the plaintiff had excellent protective sensation in the middle finger. As far as the index fingertip was concerned, he also thought the progress to be “extremely good” and thought there had been “excellent recovery of sensation”. The fingernail on the index finger hadn’t “quite recovered yet” and the doctor found it difficult to know how good the nail was going to be down the track but he left that in abeyance. He gave the plaintiff a clearance to return to his normal work duties and said that needed to see the plaintiff in four weeks’ time with a repeat X-ray of the index finger to ensure that the fracture was well-healed. I should indicate that after 7 February 2008, the plaintiff started seeing a hand therapist at Dr Brindley’s surgery and continued to visit that hand therapist for about six months. He was taught exercises to get his hands back into good working order.

7. The further X-ray of the plaintiff’s right index finger was performed on 30 April 2008 and reported by Dr Scotton on 1 May 2008. That is reported by Dr Scotton as showing “no evidence of bony union”. He was unable to compare his films with those previously taken by Dr Walker but he thought that his films showed some slight palmar displacement of the distal fragment relevant to the base of the phalanx. He also thought that there was “slight angulation convex dorsally”.

8. The radiological abnormalities reported upon by Dr Scotton do not appear to have troubled Dr Brindley. The final report of Dr Brindley bears date 1 May 2008. The substance of the report is this:

“I reviewed Jacob today and it is now four months since he almost completely amputated the pulp from the right index and middle fingertips. There was also a fracture through the base of the distal phalanx of the index finger. The soft tissues have continued to consolidate well, although there is an almost circumferential scar at the level of the amputation site. The pulp tissue has healed very well and he has also recovered near normal sensation in the fingertips which is surprising. The distal phalanx fracture is slightly displaced near the DIP joint but on his current X-ray, there is good bony consolidation, although the fracture line is still clearly visible.

The fracture is, however, stable and he can flex the fingertips fully into the distal palmar crease and has full extension as well. There is no hyper-sensitivity and the fingernails are growing well. He is back doing his normal work and has recently returned to golf without any problems. I have given him a final WorkCover certificate today and will only review him in the future if he has any problems.”

There has been no such review.

9. The plaintiff has returned to working as a full time underground coalminer. However, the expectation of a good return to golf has not be realised. When the plaintiff left school, he worked for three years at a golf pro shop at the West Side Golf Course at Rutherford. He had hoped to become a golfing professional. He had a handicap of one. He was playing social golf, competition golf and pennant competition on Sundays. Since this injury, the plaintiff has not returned to such good golfing form. The lowest he could get his handicap to was four but in recent times, has lost his handicap. He had a group of friends who were excellent golf players and he enjoyed playing with them but when he could not keep up with the standard of their play, he lost interest and has only played two rounds of golf in the last two years. Although the plaintiff had been playing golf weekly in the last seven and a half years, almost eight years, he has played only about 30 rounds rather than the expected 400. The plaintiff tells me, and I accept his evidence, that the symptoms that he has in his hands make it difficult for him to swing a club. He has difficulty correctly grasping a golf club in his hands and that has led to the downturn in his golfing ability.

10. The issues are the extent of the loss of efficient use of the plaintiff’s right hand, whether the injury to the plaintiff’s left hand entitles him to claim a lump sum for the loss of efficient use of the left hand or merely a lump sum for the loss of efficient use of the left index finger, and depending on whether it be the hand or the finger, the extent of the loss of the left hand or the left index finger. I have been provided with reports made by Professor YAE Ghabrial qualified by the plaintiff’s solicitors. I have been provided with reports prepared by Dr Lloyd Hughes qualified on behalf of the defendant. This will be the third time within 12 months in which I have had cause to observe that the tender of such evidence places the Court between Scylla and Charybdis. I have been placed between a rock and a hard place. I have been given two extreme views, one exceptionally generous view from Dr Ghabrial and one very conservative view from Dr Lloyd Hughes.

11. The parties must bear in mind that I am a judge, not an oracle. In Davie v Edinburgh Corporation [1953] SC 34, Cooper L, the Lord present at the Court of Session, pointed this out:

“The parties have invoked the decision of a judicial tribunal and not the oracular pronouncement of an expert.”

His Lordship went on to point out what the duties of an expert were. His Lordship said this:

“Their duty is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence.”

12. I am afraid that as far as Professor Ghabrial is concerned, he has really failed to do his duty. Professor Ghabrial first saw the plaintiff on 14 August 2013. He examined the plaintiff’s left hand. He has found swelling of the proximal phalanx and a scar on the left index finger. He said he found some weakness in the left hand grip, although he considered it to be “minor”. It is unclear whether the swelling of the proximal phalanx of the index finger caused somehow the general weakness in grip of the left hand. As far as the right hand was concerned, he found a loss of the last 30 degrees of extension of the terminal phalanx of the right index finger and he found abnormal nail with loss of the pulp space in the middle finger. It is unclear to me whether the abnormal nail loss was in the index finger or in the middle finger or in both. It is also difficult for me to understand what the doctor means by “loss of the pulp space”. Pulp means tissue. Tissue means material. Material is different to space. How one can have loss of “pulp space” has not been adequately explained. Whether he means that he found a wasting, I do not know. Professor Ghabrial diagnosed a 12.5% loss of efficient use of the left hand and a 17.5% loss of efficient use of the right hand. How his findings on examination led to those figures is not adequately explained.

13. Dr Lloyd Hughes first saw the plaintiff on 22 July 2014. The symptoms that the plaintiff had as recorded by Dr Lloyd Hughes were some slight alteration in the sensation of the right index finger and some sensitivity in the scar on the radial side of the left index finger. He also noted the plaintiff experienced some soreness in the proximal joints of both hands. I assume by that the doctor means the proximal interphalangeal joints. I will refer to this again later. The only abnormality Dr Lloyd Hughes found on examination of the plaintiff’s left hand was a well-healed scar on the radial side of the left index finger. Otherwise the index finger functioned normally, although there was some slight sensitivity in the well-healed scar tissue. The doctor thought the plaintiff had full movements present in the finger and no loss of sensation in the finger, although that is somewhat inconsistent with noting a sensitivity in the well-healed scar tissue. As far as the right hand was concerned, the doctor noted slight alteration in sensation of the tips of the index and middle fingers, slight deformity of the distal pulp of the middle or long finger, and deformity of the terminal phalanx and pulp of the index finger with 30 degrees loss of extension of the distal interphalangeal joint but full flexion of the finger. In essence, there was little difference between those findings and the findings recorded by Dr Ghabrial about the right hand. The difference in their findings concerning the left hand was the fact that Dr Ghabrial found swelling in the left index finger but Dr Lloyd Hughes found none. Dr Hughes expressed the view the plaintiff had a 5% loss of efficient use of his right hand and a 1% loss of efficient use of the left hand, although if one looked only at the left index finger, that 1% loss equated to a 3% loss of efficient use of the left index finger.

14. I have some problems with that conversion. As a rule of thumb, one can postulate that a little finger is 5% of a hand, a ring finger is 10% of a hand, a long finger is 15% of a hand, an index finger is 20% of a hand and the remaining 50% of the hand relates to the function of the thumb. 1% of the hand caused by an injury to the left index finger means a 5% loss of efficient use of the left index finger.

15. Professor Ghabrial re-examined the plaintiff on 29 May 2015. He recorded that further X-rays of both hands taken on 14 April 2015 due to an increase in the plaintiff’s symptoms showed evidence of osteoarthritic changes in the terminal phalanges of the index and middle fingers of the right hand. Dr Ghabrial went on to say this:

“There were no abnormalities in his right hand.”

One might be forgiven for thinking that the doctor was attempting to refer to the left hand in the last sentence which I quoted.

16. Eventually the parties went away and obtained the report of the radiologist who carried out the X-ray of 14 April 2015. In fact, the X-ray may have been made on that day but was reported by Dr Phil Janke on 15 April 2015. The “clinical history” recorded by Dr Janke is of an injury six years previously and of complaints of pain being made by the plaintiff in the proximal interphalangeal joints of both hands. They were complaints recorded by Dr Lloyd Hughes when he first examined the plaintiff on 22 July 2015. The radiological report is thus:

“There are old fractures of the distal phalanx of the right index finger and terminal tuft of the ipsilateral middle finger respectively and a united fracture of the neck of the right fifth metacarpal. DIP and MCP joints of both hands are normal. No other significant abnormality.”

17. Osteoarthritis is by definition a degenerative condition of joints. The radiologist Dr Janke found no abnormality in either the distal interphalangeal joints or the metacarpo-phalangeal joints of each hand. However, he does not specifically say anything about the proximal interphalangeal joints in the report itself. However, there is nothing in what I have quoted to suggest that there was osteoarthritic change in the proximal interphalangeal joints. Dr Janke clearly closely looked at the X-ray because he found something that no one else had ever previously found, a fracture of the neck of the right fifth metacarpal, that is, of the long bone of the hand beneath the right little finger, which indicates that three fingers of the plaintiff’s right hand were injured in the event now in question.

18. Proffessor Ghabrial also said that there were sensory changes in both hands “which although is not classical but consistent and is probably related to bilateral carpal tunnel syndrome”. A carpal tunnel syndrome is caused by the median nerve being entrapped in a small tunnel of bone in the wrist. There is no suggestion that the plaintiff’s wrists were injured in this crushing injury. The suggestion that the plaintiff’s symptoms on the hands could be related to a median nerve compression at the carpal tunnel is quite frankly incredible or bizarre. On this occasion, Professor Ghabrial increased his assessments of loss. He assessed a 15% loss of efficient use of the plaintiff’s left hand and a 22.5% loss of efficient use of the plaintiff’s right hand.

17. On 18 August 2015, the plaintiff was reviewed by Dr Lloyd Hughes. The plaintiff told Dr Lloyd Hughes that there had been no change in the condition of his hands. He complained of some numbness of the tip of the right index finger and the right middle or long finger. There was also a complaint of some numbness in the fingers of the left hand, mainly in cold weather. There was also sensitivity in the scar on the radial side of the left index finger. It is noteworthy that Dr Hughes took a history of some numbness in all the fingers of the left hand. The plaintiff told Dr Hughes that he was able to grip satisfactorily with both hands. Whether a satisfactory grip is a full grip is a moot point. Dr Lloyd Hughes questioned the plaintiff about being woken up at night with symptoms in each hand which would be consistent with carpal tunnel syndrome but the plaintiff denied any such symptoms at night. In essence, Dr Lloyd Hughes’ findings on examination were the same as they had been previously. He made exactly the same assessments as he had previously.

18. The plaintiff complained to me of symptoms in the proximal interphalangeal joints of each finger of each hand when he sought to make a fist. That is what he told Dr Lloyd Hughes back on 22 July 2014 and the reason for the more recent X-ray that of Dr Janke reported on 15 April 2015. Were I an oracle or some form of expert, I might think that the plaintiff may be developing osteoarthritis in the proximal interphalangeal joints of each hand which were involved in the crushing injury, although there was no bony damage to those joints but there was general soft tissue damage to the fingers, most of which did not require surgery but which did cause the plaintiff bruising and discomfort for a period of time, obviously less than the period of time the plaintiff was affected by the wounds which required surgery. As the finger joints are non-weight bearing, one would think that osteoarthritis would develop slowly. However, that would be merely speculation on my part. Osteoarthritis generally results from damage to the intra-articular surface in bony joints and it is mere speculation that the plaintiff injured the intra-articular surface of each of his proximal interphalangeal joints in the crush injury now in question. Furthermore, there might be some other theoretical cause to the osteoarthritis, if there were osteoarthritis, in the proximal interphalangeal joints.

19. I can only operate on evidence. The only objective evidence concerning the plaintiff’s left hand concerns ongoing damage to his left index finger. In due course, some radiological evidence may appear of some osteoarthritis in the proximal interphalangeal joints of each of the plaintiff’s fingers of the left hand. If so, medical opinion could be sought on it and it may be that a review of the current proceedings may end up with a further assessment. However, on the evidence before me at the moment, I can only proceed on the basis of an injury to the plaintiff’s left index finger. Consistent with what I said earlier, I accept a 5% loss of efficient use of the plaintiff’s left index finger.

20. The plaintiff’s right hand, however, is a different matter. The plaintiff demonstrated how he now must pick up things, how he grips using his right hand. He, after all, is right-handed. He opposes his thumb, if he can avoid opposing it to the index and long fingers, to the ring and the little finger. He picks up awkwardly, trying to save the terminal phalanges of his index and middle finger. The extent of the loss of the plaintiff’s right hand is, bearing in mind what he told me and what he demonstrated, greater than the 5% assessed by Dr Lloyd Hughes. Equally, I believe the assessments made by Professor Ghabrial, in particular the last assessment, is far too great and it has to be borne in mind that this relatively young man who is now only 31. He was 23 at the time of the injury. He is working full time as an underground coalminer, as an inspection of his hands would show anyone. The plaintiff did demonstrate his hand to me and the asymmetry between his hands is marked. Doing the best I can, I believe that the plaintiff has lost 15% of the efficient use of his right hand.

21. I am told that my findings under s 66 entitle the plaintiff to lump sum compensation under s 67 for pain and suffering, anxiety and distress resulting from the losses that I have found. As I have just mentioned, the plaintiff was 23 years old at the time of this accident. He is now 31. He has sustained damage of a major nature to his dominant right hand and to a lesser extent to his non-dominant left hand. He has lost his previously excellent ability at playing golf, something that he appears to have enjoyed and would have liked to pursue. However, it appears that one can earn more as an underground coalminer than as a putative golf professional. If the plaintiff have a normal life expectancy, and there is nothing to suggest to the contrary, the plaintiff can expect to live for a further 50 years, a not inconsiderable amount of time in which to suffer symptoms in the dominant hand. It is very difficult for a person to not use their dominant hand. Equally, I have to measure the plaintiff’s experience of pain and suffering, anxiety and distress against a most extreme case of the same and a most extreme case of course includes very severe conditions such as quadriplegia and paraplegia. I have held it to extend to a very young man suffering from a hemiparesis, that is, a partial paralysis to the whole of one side of the body with brain damage and social disinhibition. However, the plaintiff has now suffered for almost eight years and will suffer symptoms continuing to incommode him for a further 50 years. Doing the best I can, I believe that this case stands in proportion to a most extreme case in the ratio of three as to ten. The monetary value of that finding is $19,860.

22. Any further reasons for judgment required, gentlemen?

BENSON: No, your Honour.

ODLING: No, your Honour.

HIS HONOUR: I have enquired of counsel for the parties whether further reasons for judgment are required. I am told that none is so required. For those reasons, I make an award for the plaintiff for $13,891.50 in respect of 15% loss of efficient use of the plaintiff’s right hand. I make an award for $1,190.70 for 5% loss of efficient use of the plaintiff’s left index finger. I make an award for the plaintiff for $19,860 pursuant to s 67. I order the defendant to pay the plaintiff’s hospital and medical and like expenses pursuant to s 60. I order the defendant to pay the defendant’s costs.

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Decision last updated: 27 January 2016