Anderson v Victorian WorkCover Authority
[2019] VCC 1295
•23 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-05007
| PETER JAMES ANDERSON | Plaintiff |
| v | |
| VICTORIA WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 August 2019 | |
DATE OF JUDGMENT: | 23 August 2019 | |
CASE MAY BE CITED AS: | Anderson v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1295 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment of the middle finger on the dominant right hand – paragraphs (a) and (b) of the definition of “serious injury” – pain and suffering – disfigurement – whether consequences of injury to dominant middle finger are serious in nature – relevant principles
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission& Avalanche [2005] VSCA 1; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Ingram v Ingram & Anor [1996] 2 VR 435; Baker v Transport Accident Commission [1997] 1 VR 662
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G K Coldwell | Adviceline Injury Lawyers |
| For the Defendant | Ms C Spitaleri | Wisewould Mahony |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff while employed by Peter Collins, The Drain Surgeon Pty Ltd (“the employer”), while conducting work at Balnarring Primary School on 7 September 2009 (“the accident”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering.
Relevant legal principles
3 The application for leave to bring proceedings for damages is brought pursuant to ss(a) and (b) of the definition of “serious injury” as that term is defined in s134AB(37) of the Act, namely:
“‘Serious injury’ means –
(a)permanent serious impairment or loss of a body function …
(b)permanent serious disfigurement … .”
4 The impairment of body function relied upon is the right middle finger (“the finger”).
5 In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of the phrase “serious injury”, by s134AB(1) of the Act, the relevant injury must have arisen out of or due to the nature of the plaintiff’s employment with the employer on or after 20 October 1999.[1] As set out in s134AB(37), the impairment of the body function must be permanent.[2]
[1]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
[2]Barwon Spinners Pty Ltd & Ors v Podolak (Ibid) at paragraph [33]
6 The plaintiff’s burden of proof on the application is on the balance of probabilities.
7 In relation to the physical injury which relates to the impairment of a body function, by s134AB(38)(b) and (c) of the Act, it is the “consequences” of the bodily impairment which produce, relevantly, the “pain and suffering”, which must be “serious” – that is, the plaintiff must prove, on the balance of probabilities, that the impairment or loss of body function results in relevant “consequences” that are “when judged by comparison with other cases in the range of possible impairments fairly described as being more than significant or marked, and as being at least very considerable”. This has been referred to as the “narrative” test and it has been held that this task is largely a question of impression or value judgment.[3]
[3]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
8 In determining the application, the Court:
(a)must assess whether the injury is a “serious injury” as at the time the application is heard;[4]
(b)must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[5]
[4]Section 134AB(38)(j) of the Act
[5]See generally Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
9 Section 134AB(38)(h) requires me to disregard all psychological or psychiatric consequences in determining an application which relates to a physical impairment.
10 In determining the seriousness of the “consequences” of the injury, the Court is required to assess the matter by reference to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made between the impairment arising from the injury the subject of this application and the range of possible impairments, losses of body function or disfigurement, as the case may be.
11 The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined. The plaintiff’s sister, Maree Anderson, swore an affidavit on 16 July 2019. The plaintiff’s close friend, Mitchell Craig, swore an affidavit on 29 July 2019.
12 In addition, both parties relied upon medical reports and other materials which were contained within a Joint Court Book tendered in evidence.[6] I have read all of the tendered material. In this Judgment, I will refer only to the relevant parts of the tendered material.
[6]The Joint Court Book was marked as exhibit P1
13 In reaching my conclusions in relation to the application for leave to bring proceedings for damages, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[7] and Grech v Orica Australia Pty Ltd & Anor.[8]
[7]Supra
[8](2006) 14 VR 602
The Plaintiff’s background
14 The plaintiff was born in September 1979 in Australia.[9] He is now aged thirty-nine. He grew up in Melbourne and attended Whitefriars College, completing Year 12, before leaving school to work in the retail industry. He is not married and has no children.[10] The plaintiff is right-hand dominant.[11]
[9]Exhibit P1, page 13
[10]Exhibit P1, page 13
[11]Exhibit P1, page 23
15 Since leaving school, he has completed a Diploma in Business Marketing through Box Hill TAFE and worked in retail for around ten years.[12]
[12]Exhibit P1, pages 13-14
16 Following that, he commenced an apprenticeship with the employer in or about 2006. He completed his apprenticeship and is presently running his own plumbing business.[13]
[13]Exhibit P1, page 14
17 The plaintiff has sustained no relevant prior injuries and had never before injured his right hand.
The accident
18 The plaintiff described the accident in the following way:[14]
[14]Exhibit P1, pages 20-21
“On 7 September 2009, I came to work at my usual time … I received my instructions and went to Balnarring Primary School … At the time we were fitting a new gas line in a concrete driveway. Someone came out a few days earlier and cut the concrete with a demolition saw. I used an excavator to dig the concrete out and stack [it] next to the trench in a pile …
There was a pile of concrete I had stacked after digging the trench. … The concrete was approximately 100mm thick, 400mm wide and approximately 1000mm long. You end up with a slab sitting on the ground of those dimensions and that is what we were lifting.
You cannot get your fingers under these slabs so you put a crowbar under and lever it up…We used the crowbar to lever the slab up and pushed and lifted it into the bucket.
I do not know what happened at the time of the injury, I have a feeling a little bit of concrete broke off of the slab where the crowbar was located. I was not expecting the weight of the slab at the time the crowbar slipped and at this time the slab crushed my right middle finger against the ground. I had seen it falling and went to move my hand out, it scratched along my hand and took the end off my right middle finger …
Mr Greenman called the ambulance while I held my arm up to restrict blood flow … From there the ambulance came…It went straight to Frankston Hospital. I arrived at Frankston Hospital at approximately 1.45pm. I was put in the Emergency Department, they cleaned the wound and had a Surgeon look at it. They said it could be up to two days for plastic surgery to get a Surgeon in so I checked out at approximately 10.00am on 8 September 2009. My brother picked me up and drove me to the Centre of Cosmetic and Plastic Surgery and they operated at approximately 6.00pm. I had plastic surgery and amputation of the tip of the finger. They did a skin graft from my right wrist for the end of my right middle finger. I went home at approximately 8.30pm. I went back for checkups … between five and seven days later with a nurse and a Surgeon, and then a week later as well. I then started hand therapy approximately a week after the accident … .”
19 Following his discharge from hospital, the plaintiff had a number of weeks of hand therapy at Box Hill Consulting Rooms. As a result of the accident, he has lost the tip of his right middle finger and is without a fingernail at all in that location. He had a number of months off work and then returned to light duties. He returned to full-time duties with the employer in January 2010.
Evidence concerning the consequences of the injury
20 The plaintiff swore two affidavits, the first dated 18 June 2018 and the second dated 10 July 2019. In addition, a number of the medical reports contain accounts given by the plaintiff as to the consequences of the amputation of the middle finger of his dominant right hand. In summary, the evidence as to the pain and suffering consequences which the plaintiff presently experiences is as follows:
(a)he has permanently lost the tip of the middle finger on his dominant right hand and is without a fingernail at all in that location;[15]
[15]Exhibit P1, page 15
(b)he experiences hypersensitivity of the remaining stump;[16]
[16]Exhibit P1, page 37
(c)he experiences tenderness on the palm side of the stump and the tip of the stump. This is a result of the neurovascular repair, where the suture line (and therefore the scar), is sitting over the line of the radial collateral digital nerve, and the scar in the healed flap is causing sensitivity along the peri-neural sheath. He describes a tingling like “electricity” in this area.[17] This sensation has also been described as “uncomfortable tingling” and is reported as being present “most of the time”;[18]
[17]Exhibit P1, page 47
[18]Exhibit P1, page 86
(d)knocking the end of the finger and exposure to cold makes this discomfort worse, so the plaintiff often avoids the use of the end of the right middle finger;[19]
[19]Exhibit P1, page 86
(e)the right middle finger tightens up and has to be stretched periodically;[20]
[20]Exhibit P1, page 86
(f)vibration, especially from a jack hammer or crowbar, causes pain in the right middle finger;[21]
[21]Exhibit P1, page 86
(g)any sudden pull on the right hand causes pain;[22]
[22]Exhibit P1, page 86
(h)the strength of his right-handed grip is appreciably weaker than before the accident.[23] The decrease in the strength of his right-handed grip was said to be “about 50%” compared to that of the left hand.[24] Associate Professor Felix Behan measured the grip strength in each of the plaintiff’s hands in about March 2019 and commented that the plaintiff has “a reduced power grip on (R) side of 20Kgs compared with 30Kgs on uninjured (L) side …”;[25]
[23]Exhibit P1, page 86
[24]Exhibit P1, page 40
[25]Exhibit P1, page 47
(i)when a powerful grip is required at work, which is most of the time, the plaintiff holds his right middle finger in extension, so as to minimise the sensitivity which he experiences with that activity;[26]
[26]Exhibit P1, page 47
(j)the degree to which he can lift has decreased, as he has had to modify his grip in the right hand;[27]
[27]Exhibit P1, page 41
(k)pushing, pulling, lifting, repetitive pushing and prolonged use of the right hand are limited, due to the irritation which the plaintiff experiences;[28]
[28]Exhibit P1, page 41
(l)there are instances of right manual dysfunction, including poor handshake grip, poor writing and poor social/toilet functions, because of having to use his left hand for these activities;[29]
[29]Exhibit P1, page 48
(m)he is functionally disabled in relation to fine manual handling tasks, such as handling small change at the supermarket or using implements such as chopsticks, and uses his left hand constantly to avoid issues such as dropping coins;[30]
[30]Exhibit P1, pages 23 and 48
(n)he has difficulty performing domestic tasks such as using a lawnmower, doing the dishes or typing on a computer keyboard, because of the sensitivity and altered sensation in his right middle finger;[31]
[31]Exhibit P1, page 86; see also affidavit of Maree Anderson, exhibit P1, pages 25 and 26
(o)he is much more awkward in his manual dexterity because of the lack of length of the right middle finger[32] which has been shortened by 1.5 centimetres;[33]
[32]Exhibit P1, page 94
[33]Exhibit P1, page 87
(p)he has diminished sensation in the remaining stump, in that he cannot discern the difference in that area between sharp and blunt, hot and cold;[34]
[34]Exhibit P1, pages 94-95
(q)he continues to work running his own plumbing business as best he can; however, due to the amputation of the tip of the right middle finger, as well as the resulting nerve damage from the surgical repair, he has to avoid using tools such as jackhammers and crowbars, or other tasks that require high strength in the right hand. He tries to work on the excavator as much as possible, as this is an easier job for him to perform. When it comes to using crowbars and shovels, he can do it, but he tries to do it with his injured finger held off the particular tool so that when he hits the ground or any other hard obstruction, he can avoid jarring his finger;[35]
[35]Exhibit P1, page 15; see also affidavit of Mitchell Craig, exhibit P1, page 27
(r)he no longer enjoys playing basketball, which was his principal sporting interest at the time of the accident: “I really loved playing.”[36] At the time of the accident, the plaintiff was playing basketball a couple of times a week. They were social games. His team had risen from Division 4 to Division 1 in a competition which had more than six divisions.[37] He tried to return to playing basketball at times, but has found it both difficult and painful. He no longer plays due to his injured finger which “took the enjoyment out of the game”.[38] He last tried to play basketball two or three years ago.[39] If he had not been injured he would still play basketball on weeknights. He denied that he would not have had time to do this because he is self employed: “It’s something I enjoyed. I would make time;”[40]
[36]Exhibit P1, page 15
[37]Transcript (“T”) 22, line (“L”) 26-29
[38]Exhibit P1, page 15
[39]Exhibit P1, page 15
[40]T22-23
(s)he no longer plays football because contact with the ball causes him discomfort;[41]
[41]Exhibit P1, page 86
(t)at the time of the accident, he regularly attended the gym.[42] He said that the reason he enjoyed the gym was because it was about “keeping fit” and “feeling good about yourself”.[43] He used to go three times a week and would exercise using free weights including the bench press. He has tried to go back a few times. While he has found there are some things he can do, his ability to perform at the gym is affected by loss of hand strength and “my ability to do what I was doing in the past has been significantly impacted upon by the injury. It’s not the same and tends to put me off.”[44] He thought that work with free weights made up “50 per cent of what going to the gym was about for me”.[45] He no longer goes to the gym[46] and part of the reason for that is that it is uncomfortable due to the difficulties with his right hand gripping the weights and his inability to do many of the exercises that he used to enjoy;[47]
[42]Exhibit P1, page 27
[43]T22, L17-19
[44]Exhibit P1, page 16
[45]T22, L21-23
[46]Exhibit P1, page 27
[47]Exhibit P1, page 16
(u)he has daily discomfort in the right middle finger. He has persisted with activities despite this pain because he “has gotten used to it”;[48]
[48]Exhibit P1, page 16
(v)he experiences a sharp and nerve-type pain when any of the following occur to the right middle finger: [49]
[49]Exhibit P1, page 16
(i)a knock against anything;
(ii)jarring;
(iii)handshaking;
(iv)vibration;
(v)using an indicator whilst driving a car; and
(vi)cold weather;
(w)some examples of everyday things that cause nerve pain and are harder than normal to do include: [50]
[50]Exhibit P1, page 17
(i)using power tools;
(ii)using a jack hammer;
(iii)shovel work;
(iv)using a crowbar;
(v)typing up quotes and invoices;
(vi)opening a lid on, for example, body wash;
(vii)opening jars or bottles of drink;
(viii)bouncing and catching a ball; and
(ix)playing football, for example marking the ball;
(x)the plaintiff is embarrassed by the “abnormal”[51] look of his injured right hand and middle finger and constantly makes efforts to disguise its appearance,[52] either by hiding his hand in his pocket or using his left hand instead;[53]
(y)as the shortened right middle finger is always present in every activity that he undertakes, it is a constant reminder of the injury.[54]
[51]Exhibit P1, page 86
[52]Exhibit P1, pages 26 and 27
[53]Exhibit P1, pages 16 and 26
[54]Exhibit P1, page 49
21 Under cross-examination, the plaintiff gave the following evidence:
(a)he became a self-employed plumber in about 2012;[55]
[55]T15, L15-16
(b)when he first started his business, he had no employees;[56]
[56]T15, L17-19
(c)not long after, he hired an apprentice. He now has two apprentices and three qualified staff, plus his sister, working for his business;[57]
[57]T15-16
(d)when he first started the business, he was mainly doing excavation work with machinery and all of the associated administrative work;[58]
[58]T15, L21-26
(e)the administrative work was something that he really did not enjoy doing:[59] “I’m not good at that sort of thing.” As his business grew, he did not have time to do the physical plumbing work and the administrative work: “Doing eight hours a day at work and then doing another few hours at home was beginning to take its toll so it got to the stage where I could think about putting someone on to do that sort of work.”[60] His sister now does the administrative work in the business;[61]
[59]T16, L7-8
[60]T16, L10-15
[61]T16, L5
(f)he denied that despite the injury to his finger, he was still able to dig holes manually: “I avoid it most times due to the discomfort but if it has to be done, yeah, I will have a go.”[62] He said that digging a hole manually is “very uncomfortable”. He said that “it’s a very rare occasion that I do put myself in that position. I normally try and plan and take a staff member with me who can do those tasks that I find a bit difficult to do”;[63]
[62]T16, L21-24
[63]T16, L25-29
(g)the excavator is not a “drama” to use. It is the hand tasks that he has difficulty with;[64]
[64]T17, L5-6
(h)he denied that when he saw Dr Segal, he told him that he did the physical tasks of the business by himself. He said that he was describing what his business does: “That’s how we work, yep”;[65]
[65]T17, L19-21
(i)he did not recall telling that doctor that some days he uses a shovel all day by himself.[66] He agreed that there would be days when he would use a shovel;[67]
(j)he agreed that while at work, sometimes he uses equipment like a jack hammer and a crowbar. He denied that he would describe the discomfort caused by the vibration from this equipment as “mild”: “I wouldn’t call it mild but I would call it discomfort … I try to avoid it at all costs if I can. I get one of the other staff members to do it.”[68] He said that while he can still use a crowbar and can still hold it, the grip strength and the vibration make it uncomfortable so “it’s not as effective as it once was”.[69] When asked if using a crowbar is something he regularly does, he said “Not me personally but it’s required at work. That’s why I normally use the staff on hand to do those sort of tasks”;[70]
(k)he denied regularly using the jack hammer: “I don’t personally, no. Again, the staff do”;[71]
(l)he agreed that when he went to see Dr Segal, he said that the main symptoms occur from using vibration tools. He said those tools are regularly used at work: “I don’t personally use them every day. I try to be smart and delegate those tasks to the apprentices or the other staff who can do it comfortably”;[72]
(m)when it was put to him that his right middle finger causes him some “mild” discomfort, he replied: “It causes discomfort. The levels vary”;[73]
(n)he was asked if the pain was enough for him to go and take a Panadol. In reply, he said “That wouldn’t have helped, I wouldn’t have thought”;[74]
(o)it was put to him that he has “good use of his right hand”. He replied: “I wouldn’t have thought so. There are strength issues and it being my dominant hand, every day…there’s some sort of effect that I have noticed”;[75]
(p)he denied that the reason that he does not play basketball and go to the gym at present is because he is self-employed.[76] He said that what made going to the gym enjoyable before the injury was “keeping fit, feeling good about yourself”;[77]
(q)he agreed that he could still play basketball but said that it “would be harder and more uncomfortable”;[78]
(r)he agreed that in terms of going to the gym, he could still do it and could go on the treadmill and use an exercise bike or do exercises such as a leg press. He disagreed with the suggestion that the reason that he no longer went to the gym was because he did not have time to go or that he did not want to go to the gym anymore: “I would like to go to the gym”;[79]
[66]T17, L22-25
[67]T17, L26-28
[68]T17-18
[69]T18, L11-14
[70]T19, L6-9
[71]T19, L10-11
[72]T19, L12-21
[73]T19, L29-30
[74]T18, L8-10
[75]T20, L6-10
[76]T21, L10-15
[77]T22, L17-19
[78]T21, L23-31
[79]T22, L1-11
The issues
The Plaintiff’s credit
22 No serious attack was made on the plaintiff’s credit during the hearing; however, on a number of occasions, counsel for the defendant pressed the plaintiff during cross-examination about the accuracy of matters referred to in various doctors’ reports.
23 For instance, as set out above, it was put to the plaintiff that he had told Dr Segal that he did physical tasks of the business by himself and that on some days he uses a shovel all day by himself. Similarly, it was suggested to the plaintiff that the reasons that he no longer played basketball or went to the gym were more for convenience due to the increased hours he was required to work as part of being self employed, rather than anything to do with his injuries. The plaintiff gave his answers to these questions in a considered and straightforward manner. The explanations which he gave under cross-examination were reasonable.
24 Having had the benefit of observing the plaintiff while he was giving evidence to the Court, I formed the view that he was a co-operative witness, who did his best to give accurate responses to the questions asked of him. During cross-examination, he gave his evidence openly and without embellishment. At times, he made appropriate concessions. Furthermore, I find that the plaintiff’s account of events has remained consistent throughout the period during which he has seen his treating medical practitioners, consulted with the medico-legal assessors and provided evidence to this Court.
25 After considering of all of the evidence, and in particular, the evidence of the plaintiff, I have concluded that he was a credible witness, in the sense of being a truthful person. At no time did I gain the impression that he was attempting to mislead the Court, or exaggerate his symptoms.
Stoic plaintiff
26 Having observed the plaintiff and considered the relevant materials in the Joint Court Book, I also formed the view that the plaintiff is extremely stoic in relation to his condition.
27 Despite the evident pain that he has constantly suffered since sustaining the injury in September 2009, he has continued to work and has started his own plumbing business. This has occurred even though he is often unable to avoid activities which cause him pain and despite the fact that, as he describes it, “every day … there’s some sort of [pain] effect that I have noticed”.[80]
[80]T20, L6-10
The medical evidence
28 Numerous medical reports were tendered into evidence. I have read all of the medical reports and assessed them for relevance. In this section, I refer to those reports which are relevant to the question of what contribution the injuries suffered in the accident make to the plaintiff’s present symptoms.
29 As far as treatment goes, immediately following the accident, the plaintiff had extensive hand therapy. He returned to work after several months, initially on light duties. As referred to above, he returned to full-time work in January 2010. It is not in dispute that his condition has stabilised. He receives no active treatment at present. As to this, Dr Segal describes the plaintiff’s injury as “not likely to be progressive but … unlikely to improve any further from the current state”.[81] All of the relevant medical experts in the case, whether treaters or medico-legal experts, agree that surgical review of the plaintiff’s scar is not advisable as there is no guarantee that such a procedure would produce any benefit.[82] Mr Stapleton was of the view that further surgery may cause its own complications and in fact increase the plaintiff’s pain.[83]
[81]Exhibit P1, page 41
[82]Exhibit P1, page 55
[83]Exhibit P1, page 99
30 In a report dated 17 September 2018, Dr Alan Segal, dermatologist, for the plaintiff, noted that over the preceding eight years, there had been no change in the disability which the plaintiff experiences from his injury. Dr Segal recounted that the plaintiff said his main disability occurs, firstly, from vibration tools and, secondly, when he pushes levers on the excavator that he uses at work. He noted that the plaintiff also finds that his ability to open jars or move things around is somewhat compromised. The plaintiff told Dr Segal that he often feels cold on his right middle fingertip, especially during the cooler weather. Dr Segal noted that the plaintiff said that manipulating objects around the house, such as the fridge, are more difficult with his right hand and the plaintiff has to make an effort to avoid local trauma to his finger by ensuring that it is not in the way.
31 Dr Segal thought that the plaintiff’s grip on his right hand was about 50 per cent decreased compared to that of the left hand. He noted that the plaintiff needed to arrange for his employees to carry out the more heavy work in his work environment, and that the degree to which the plaintiff can lift has decreased to some degree, by reason of his fingertip injury and having to modify his grip. Dr Segal thought that the plaintiff’s injury was unlikely to improve and that in terms of restrictions, the plaintiff needs to avoid local trauma to his hand as much as possible, which will involve avoiding situations where local trauma is likely to occur. Dr Segal thought the plaintiff had good residual employment capacity, but that certain activities should be limited. Pushing, pulling, lifting, repetitive pushing and prolonged use of the dominant right hand are somewhat limited due to local irritation and mild fatigue. Dr Segal thought that the sensory loss which the plaintiff has experienced on the flexor aspect of his right middle finger was a nuisance and caused the plaintiff to avoid certain activities in his home, recreational and work environments. He described the plaintiff’s disfigurement as being minor, with the main social detriment being the visual effect of the shortened digit.
32 In a report dated 5 March 2019, Mr Felix Behan, Clinical Associate Professor of Surgery, who provided a medico-legal assessment on behalf of the plaintiff, described the plaintiff as suffering from “disturbing hypersensitivity on touch” to the right middle finger amputated tip.[84] Associate Professor Behan confirmed the need for the plaintiff to modify his grip at work in order to protect the middle finger and to minimise the sensitivity which the plaintiff experiences.[85] Associate Professor Behan also confirmed the reduced power grip on the plaintiff’s right side, which he described as being “20Kgs compared with 30Kgs on uninjured (L) side”.[86]
[84]Exhibit P1, page 47
[85]Exhibit P1, page 47
[86]Exhibit P1, page 47
33 In addition, Associate Professor Behan diagnosed the plaintiff as suffering from a crushing injury of the right middle finger, resulting in terminalisation with subsequent reconstruction with a full-thickness graft over the secondary defect. He said that complicating this diagnosis was a hypersensitivity of the radial collateral digital nerve, where dysesthesia is an ongoing problem because of “epineurial scar irritation”.[87] In addition, Associate Professor Behan confirmed the problems which the plaintiff experiences in his workplace, regarding the use of handling heavy tools, from jackhammers to crowbars. He noted the need for the plaintiff to employ a “protective grip” because of the hypersensitivity of the plaintiff’s right middle finger.[88]
[87]Exhibit P1, page 50
[88]Exhibit P1, page 48
34 Associate Professor Behan also confirmed the impact of the injury on much of the plaintiff’s social functioning, including poor handshake grip, poor writing, poor social/toilet functionality, interference with recreational activities, including basketball, and functional disablement in relation to fine motor skills, such as handling change in the supermarket.[89]
[89]Exhibit P1, page 48
35 Lastly, Associate Professor Behan described the appearance of the plaintiff’s injury as embarrassing to him, and noted that the injury to the right hand and, in particular, to the right middle finger, is “always present and a constant reminder of the injury”.[90]
[90]Exhibit P1, page 49
36 Mr John Buntine, plastic and hand surgeon, examined the plaintiff for medico-legal purposes on behalf of the defendant on 7 December 2010. In his report dated 13 December 2010, he noted that the plaintiff’s right middle finger was measured to be 1.5 centimetres shorter than the left middle finger.[91] He said that at the extremity of the stump of that finger:
“… there is a short anteroposterior scar where skin from the radial and ulnar sides has been brought together without much subcutaneous padding and, immediately proximal to this, there is a rounded patch of skin taken from the ulnar side of the finger as a neurovascular island flap.”[92]
[91]Exhibit P1, page 87
[92]Exhibit P1, page 87
37 Mr Buntine said that this had resulted in impairment of sensation, mild tenderness and scarring at the extremity of the shortened right middle finger.[93] Mr Buntine confirmed that at that time, the plaintiff complained of hypersensitivity, stiffness of the right middle finger, weakness of grip, limitations at work and limitations in his activities of daily living. He also noted the fact that the plaintiff dislikes “the abnormal appearance of the extremity of his right middle finger resulting from shortening of the finger and complete absence of the finger nail”.[94]
[93]Exhibit P1, page 87
[94]Exhibit P1, page 86
38 Mr Murray Stapleton, plastic and hand surgeon, examined the plaintiff for medico-legal purposes on behalf of the defendant on 25 September 2018. In a report of the same date, Mr Stapleton made the following comment:
“The tip of the right middle finger stump is tender such that he is careful not to bump or abrade it. The power of his grip is diminished. He is more awkward because of the lack of length of the right middle finger. The terminal 2 cm of that right middle finger has a partial transverse sensory toss, so he is more inclined to leave that middle finger away from any repetitive or significantly gripping manoeuvres. At work, using a vibrating tool or a shovel or a crowbar, is extremely uncomfortable for him.
…
2 cm of what remains of the stump of his right middle finger reveals a partial transverse sensory loss in that although he has sensation there, he cannot discern the difference in that area between sharp and blunt, hot and cold ... .”[95]
[95]Exhibit P1, pages 94-95
39 Mr Stapleton thought that as at the date of assessment, the plaintiff had reached maximum medical improvement. He commented that the plaintiff is “much more awkward, given it is his dominant hand”.[96] Mr Stapleton commented that he did not see any reason why the plaintiff’s injuries should stop him playing basketball or attending the gymnasium, but he thought when the plaintiff was playing basketball he would “not be as efficient as was formerly the case.”[97] Mr Stapleton agreed with Mr Behan’s view that “surgery would be unlikely to minimise this gentleman’s discomfort suffered at the tip of his right middle finger”.[98]
[96]Exhibit P1, page 95
[97]Exhibit P1, page 95
[98]Exhibit P1, page 99
Compensable injury
40 In this case, there was no issue that the plaintiff had suffered a compensable injury for the purposes of the Act. Similarly there was no issue that the injury was organic in nature or that the plaintiff had suffered a permanent disfigurement of the middle finger of his dominant right hand.
41 The parties agreed that the only issue for the Court to decide was whether the plaintiff had satisfied the Court that he had suffered a “serious injury” as that term is defined under either paragraph (a) or paragraph (b) of the relevant definition within the Act.
Is the compensable injury permanent for the purposes of the Act?
42 Having considered the relevant reports from Dr Segal,[99] Associate Professor Behan,[100] Mr Buntine[101] and Mr Stapleton,[102] I find that the plaintiff is likely to continue to suffer from symptoms in his right hand for the foreseeable future.
[99]Exhibit P1, page 41
[100]Exhibit P1, page 55
[101]Exhibit P1, page 88
[102]Exhibit P1, page 94
43 Thus, I find that the injuries sustained by the plaintiff in the accident are permanent for the purposes of the Act.
Are the consequences of the accident “serious” for the purposes of the Act?
44 The weight of the evidence satisfies me that the consequences of the accident to the plaintiff are as follows:
(a)permanent loss of the tip of the middle finger on his dominant right hand and permanent loss of the fingernail at that location;
(b)resultant hypersensitivity of the remaining stump;
(c)an uncomfortable tingling “like electricity,” which is present most of the time on the palm side of the stump and the tip of the stump, as a result of the neurovascular repair to the amputated finger;
(d)the need constantly to protect the end of the amputated stump from local trauma which interferes with almost every activity of the plaintiff’s life, considering that the amputated finger is on his dominant right hand;
(e)periodic pain caused by the “tightening up” of the site on the right middle finger where the skin graft has been placed;
(f)sharp, “nerve type” pain which occurs if the right middle finger needs to be used or experiences local trauma, especially from vibrating tools at work, such as a jackhammer, crowbar or shovel, or any sudden local trauma to the hand, such as a pull on the hand;
(g)a permanent reduction in the plaintiff’s capacity for the ordinary activities of his chosen profession, being plumbing. In particular, the plaintiff is subjected to a permanent reduction in his capacity to perform the duties usually associated with carrying out drainage work;
(h)the need permanently to modify the way in which he performs the activities of his work and business, mainly by delegating the tasks which cause him pain, to others;
(i)appreciably reduced grip strength in the right hand as a result of the deformity of the right middle finger;
(j)permanent interference with the plaintiff’s ability to lift, push or pull, or to use his right hand in a prolonged manner, due to the irritation from the amputation and resulting repair;
(k)decreased right manual functioning which impacts many activities of daily living including, writing, typing, hand shaking, toileting and kitchen and garden duties such as washing the dishes or lawn mowing;
(l)decreased ability to engage in fine manual-handling tasks on the right side;
(m)diminished sensation in the remaining stump on his right middle finger, such that the plaintiff cannot discern the difference in that area between sharp and blunt, hot and cold;
(n)interference with recreational activities which the plaintiff used to enjoy, such as playing basketball, football and going to the gym doing free weights;
(o)embarrassment caused by the appearance of the injured right hand and middle finger, which causes the plaintiff to make efforts to disguise its appearance, either by hiding his hand in his pocket or by using his left hand instead.
45 I find that each and every one of these consequences is a consequence suffered by the plaintiff as a result of the injury to his right hand suffered in the accident.
46 In Haden Engineering Pty Ltd v McKinnon,[103] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of an injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of pain, as well as the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[104] Part of the process is for the Court to assess the intensity of pain which the plaintiff experiences, together with the frequency and duration of pain episodes. Ultimately, the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgement.
[103](2010) 31 VR 1
[104](Supra) at paragraph [9]
47 The weight to be attached to the plaintiff’s account of the pain experienced will depend upon an assessment of the plaintiff’s credibility.[105]
[105](Supra) at paragraph [12]
48 I have already made observations about the plaintiff’s demeanour and presentation in Court and in particular, I have found that the plaintiff was a truthful witness.
49 An analysis of the evidence clearly demonstrates that many aspects of the plaintiff’s life have been adversely affected by the consequences of the injuries that he suffered in the accident.
50 In particular, the plaintiff endures permanent, daily pain. Every day he must protect the stump of the amputated finger during every activity, both professional and recreational, in order to avoid the sharp, nerve-type pain which would occur if local trauma was to be caused to that stump.
51 The risk of sharp pain, together with the constant tingling pain caused by the repair to the amputated stump, causes significant discomfort and restriction in the plaintiff’s ability to work to his full capacity and has impacted on his ability to perform his usual activities of daily living. It has also permanently interfered with his ability to engage in recreational activities which he formerly enjoyed very much.
52 The fact that the plaintiff was prepared to engage in his current occupation, with all of the difficulty that entailed, is not a matter that tells against the granting of his application. To use the words of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2),[106] “it would be unfortunate, and in [our] view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury”.
[106][2008] VSCA 260 at paragraph [3]
53 The length of time for which a plaintiff will experience the continuation of painful symptoms and consequential inhibitions on his enjoyment of life is also relevant to my consideration of whether the pain and suffering which the plaintiff experiences is serious for the purposes of the Act.[107] It was noted by the Court in Stijepic[108] that all things being equal, impairment consequences which a plaintiff will have to put up with for forty years might well be judged to be more serious than the same consequences which a plaintiff would have to put up with for a much shorter period of time.
[107]See Stijepic vOne Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [43]
[108]ibid
54 In this case, the plaintiff is a relatively young man aged thirty-nine years. An actuarial table concerning average life expectancy was tendered into evidence.[109] This table demonstrates that the present average life expectancy of a man of the plaintiff’s age is another forty-six-and-a-half-years. Each day of the remainder of the plaintiff’s life will be attended by those restrictions that I have referred to above. If he works until age sixty or sixty-five, the plaintiff has more than twenty years of work life during which he will be affected by restriction and pain in performing his work duties.
[109]Exhibit P2
The application under sub-paragraph (b) of the Act
55 While counsel for the plaintiff did not abandon the application under sub-paragraph (b) of the Act, he made no submissions in relation to it, conceding that “this is really a sub-paragraph (a) case”.[110]
[110]T40, L13-22
56 Counsel for the defendant relied upon Ingram v Ingram[111] and Baker v Transport Accident Commission[112] in support of her argument that the extent of the disfigurement suffered by the plaintiff is minor in nature[113] and therefore could not fairly be described as “serious” for the purposes of the definition of that type of injury under the Act.
[111][1996] 2 VR 435
[112][1997] 1 VR 662
[113]Counsel for the defendant also relied upon the report of Dr Segal, who described the nature of the disfigurement in similar terms – see exhibit P1, page 41
Conclusion
57 Taking into account all of the evidence, I am satisfied that the pain and suffering consequences of the plaintiff’s injury to his right middle finger are “serious”, and satisfy the relevant test for serious injury as set out in the Act. In those circumstances, I am not required to decide whether the plaintiff’s injury to his right middle finger satisfies the definition of serious injury for the purposes of sub-paragraph (b) of the Act.
58 Accordingly, pursuant to s134AB(16)(b) of the Act, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering in respect of the injury to his right middle finger, suffered on or about 7 September 2009.
59 I will hear the parties on the questions of costs.
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