Anthony v Better Paving and Landscaping
[2018] VCC 1881
•10 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-04573
| STEWART ANDERSON ANTHONY | Plaintiff |
| v | |
| BETTER PAVING & LANDSCAPING | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 and 11 September 2018 | |
DATE OF JUDGMENT: | 10 December 2018 | |
CASE MAY BE CITED AS: | Anthony v Better Paving & Landscaping | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1881 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the left hand – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(37)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Ingram v Ingram & Transport Accident Commission (1996) 2 VR 435; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Mobilio v Balliotis [1998] 3 VR 833; Dordev v Cowan & Ors. [2006] VSCA 254; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
Judgment: Leave granted to the plaintiff to bring proceedings to recover damages for pain and suffering as a result of the left hand injury suffered in the work accident.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr G K Coldwell | Wisewould Mahony |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) for injury suffered by him on 14 September 2010 in the course of his employment as an apprentice landscaper with the defendant, Better Paving & Landscaping, when his left hand was pulled into a bandsaw which he was operating at the time. As a result, he suffered an amputation of the top joint of his left index finger, together with an amputation of the tip of his left middle finger.
2 The issues for me to determine are:
(a) whether there is a permanent serious injury to the plaintiff’s left hand which has remained and is a serious by reference to the consequences to the plaintiff as described in s134AB(37), paragraph (a); and
(b) whether the scarring to the left hand is a permanent serious disfigurement to the left hand as defined under s134AB(37), paragraph (b).
3 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
4 The plaintiff relied upon three affidavits, sworn 23 May 2016, 3 August 2017 and 6 September 2018. The plaintiff was cross-examined. I have not summarised the affidavits and evidence of the plaintiff; however, I will refer to the relevant evidence of the plaintiff in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The issues
5 Counsel for the defendant said that in making this determination I should consider the following issues:
6 First, the plaintiff’s credit.
7 Second, this is a “range case”, namely that the consequences of the plaintiff’s physical injury to the left hand and scarring/disfigurement do not meet the test of seriousness for pain and suffering, in that they could not be considered as being “more than significant or marked” and as being “at least very considerable” when compared to other cases in the range.
8 Third, the consequences the plaintiff now suffers are unrelated to the plaintiff’s injury, but are due to his current circumstances.
Background
9 The plaintiff left school in 2006 after completing VCAL. His evidence was that he did not do well at school, he preferred working with his hands. It was the plaintiff’s ambition to work in a trade and run his own business. He preferred working outside. I note that the Vocational Directions Report noted the plaintiff is affected by Attention Deficit Hyperactivity Disorder (“ADHD”).
10 The plaintiff’s pre-injury employment included working as a factory hand, later as a gardener, and at the time of the work injury, the plaintiff was working as a landscape apprentice with the defendant, a position he enjoyed.
11 The plaintiff commenced working with the defendant in June 2010.
12 On 14 September 2010, the plaintiff suffered injury at work when his left hand was pulled into a bandsaw which he was operating at the time.
13 The plaintiff is right hand dominant.
14 The plaintiff underwent surgery at The Alfred hospital, implanting the tips of the index and middle fingers of the left hand into the right side of his chest. He was discharged two days later.
15 Three weeks later, he was readmitted as a day patient to take down the flaps. The wounds healed.
16 Approximately one month after the second surgical procedure, the plaintiff returned to work on light duties. He persevered for two days but could not continue due to continuing symptoms in the left hand.
17 On 2 June and 25 August 2011 respectively, the plaintiff underwent two further day surgery procedures at The Alfred hospital to de-bulk the composite flap to the index and middle fingers.
18 After the second de-bulking procedure, the plaintiff returned to work with a different employer doing gardening maintenance work for approximately ten months.
19 The plaintiff worked as a bricklayers’ labourer for three months. He had real difficulty with a number of aspects of the job. He was unable to do all the lifting required. He often required assistance with work requiring fine use of both hands, such as to tie off steel. He was unable to cut bricks using a brick cutter as it put too much strain on his hand. He could not “throw bricks” from the ground up to the first floor as he did not have the strength in his left hand. The boss expressed dissatisfaction at his inability to do the work unassisted. After a couple of weeks of work, he was not called back. He worked installing synthetic turf for two days. He had difficulty rolling out the turf rolls because he did not have enough strength in his left hand.
20 The plaintiff said that after the accident, he worked for the defendant for two days, gardening at his employer’s house. He stopped to have further surgery. After the further surgery, he did not want to return to work for the defendant as he was very anxious around power tools.
21 At the time of the hearing before me, the plaintiff was unemployed and homeless.
22 The plaintiff experienced difficult circumstances. He was no longer able to live with his mother, and he had no fixed address and was looking for accommodation.
23 In September 2017, the plaintiff informed Dr Baynes he had lost his motor vehicle licence for two years as a result of a driving incident. The evidence as was that in 2017, the plaintiff had been in remand for two months. He had a history of using methamphetamine and GHB (gamma-hydroxybutyrat) subsequent to the work injury, although he agreed he had used marijuana prior to the injury.
Credit
24 Counsel for the defendant submitted the plaintiff was an unimpressive witness.
25 The credibility of the plaintiff as a witness and as an historian of his symptoms to medical practitioners is of central importance. The Court of Appeal has referred to the fact that medical opinions may, to varying degrees, be dependent upon the accuracy of the patient or claimant as an historian.[1] A medical opinion which is based upon an account by a patient or claimant as to his or her symptoms “may have little or no probative weight where the court determines that such a witness is not reliable”.[2]
[1]For example Mobilio v Balliotis [1998] 3 VR 833; Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [46]; Dordev v Cowan [2006] VSCA 254 at paragraphs [14]-[19]
[2]Dordev v Cowan (ibid) at paragraph [19]
26 In Franklin v Ubaldi Foods Pty Ltd,[3] Ashley JA said:
“… Two observations may be made. First, what history was given to a doctor potentially raised questions both as to what the history-giver said, and what the history-taker recorded. To assume an inevitable monopoly of right on one side or the other would run counter to experience. Secondly, … it would have been remarkable if there had not been some variations in the appellant’s history as recounted to the very large number of doctors who had examined him over the years.”
[3][2005] VSCA 317
27 The fact that a court determines that a plaintiff is not a reliable witness either in general or in respect of particular matters does not mean that all of the medical opinions relied upon by that plaintiff should be disregarded.
28 In Cakir v Arnott’s Biscuits Pty Ltd,[4] the Court of Appeal said an adverse finding concerning the appellant’s credibility was not, by itself, sufficient to justify the refusal of the serious injury application. Regard should be had to analysing and giving appropriate weight to all of the evidence, including objective evidence.[5]
[4][2007] VSCA 104 at paragraphs [49]-[58]
[5]Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108
29 Much of the cross-examination which related to the plaintiff’s credit was directed to his Facebook posts, which comprised in excess of 200 pages from October 2011 to February 2017. I was taken to approximately thirty-six entries. I accept that the entries I was taken to are not representative of his life.
30 In cross-examination, it was put to the plaintiff, on the basis of the Facebook entries which showed the plaintiff outside a nightclub in 2012, he seemed to be socialising and not embarrassed about showing off. The plaintiff’s evidence was:
“Well, that's what drugs do, sir. They alter your mind. They alter your – they alter you.”[6]
[6]Transcript (“T”) 48, Line (“L”) 3-4
31 The plaintiff conceded that he exaggerated what he said in his Facebook posts, which exaggerated his physical abilities and his social life.
32 The plaintiff had difficulty in articulating responses to questions, which I accept was due to his limited education. He answered questions to the best of his ability.
33 Two of the medical witnesses, Mr Damian Ireland, hand surgeon, and Mr Ian R Jones, orthopaedic surgeon, were provided with the record of Facebook posts and records of the Highett West Cricket Club. Mr Ireland said the Facebook posts and the history of the plaintiff playing cricket present the picture of a fairly active unaffected twenty-six year old.[7] Mr Ireland remembered the plaintiff reported playing cricket at the examination; however, he acknowledged that he failed to record it in his report.
[7]Defendant’s Court Book (“DCB”) 18
34 Mr Ireland said, based on the Facebook posts, he doubted that cold sensitivity is a major issue. He doubted that there were many other occupations to which the plaintiff is unsuited. Mr Ireland considered the impairment, as outlined in his earlier report, presents a more serious status than the one that actually exists.[8]
[8]DCB 18
35 Mr Jones said the Facebook posts were reasonably consistent with the plaintiff’s presentation when seen in September 2016, apart from the plaintiff’s reported inability to resume playing cricket. The material provided did not cause him to markedly change the extent of disability in the plaintiff’s left hand, apart from indicating that he has a reasonably good level of power of grip in his left hand.[9]
[9]DCB 27
36 The medical witnesses examined all the Facebook posts without any comment from the plaintiff.
37 In relation to the Facebook posts, given that only a limited number of posts were put to the plaintiff in cross-examination, I place little reliance on the medical witnesses’ comments on the Facebook posts.
38 The plaintiff was cross-examined about his fishing activities. The plaintiff said he was unable to fish like he did before the injury. He said that prior to the injury, he would fish monthly. He would go by himself and with friends. Now, because of loss of dexterity in his left hand, he has great difficulty in tying hooks and sinkers and removing a hook from the mouth of a fish. He is reliant on assistance from friends, which he is embarrassed about. He does not like asking for help. Consequently, he does not fish alone, so he does not fish as often.
39 I accept the plaintiff’s evidence about fishing.
40 The plaintiff was referred to a post in his Facebook entries which referred to an enjoyable day of fishing. The plaintiff said:
“See, everyone tries to make their life look a little better than what it actually is, sir.
…
Well they’re not, sir, no. I’m not saying that I went fishing. Like, I’m saying that I went on a trip, yes. I may be out with the boys, but I’m not saying that I actually fished.”[10]
[10]T39, L20-21 and L28-31
41 I accept that the plaintiff may have overstated what he said on Facebook about his fishing experience on the day; however, his evidence was not inconsistent with his evidence in his affidavit in relation to fishing. I do not accept that his credit was in issue over this aspect of his life.
42 The plaintiff’s credit was challenged in respect to his activities at the gym. In his second affidavit, he said he could no longer train at the gym as he used to. Previously he trained three times per week for up to an hour. Now, he finds gripping, pulling and pushing when doing weights makes his hand very sore. As a consequence, he goes irregularly. In his August 2017 affidavit, he said he was not going to the gym at that time for financial reasons. I accept the plaintiff’s explanation as to how his gym work is affected by his injury. I accept that when he gets back to the gym, given his left hand injury, he would not be able to train as he did prior to the injury.
43 A further issue upon which the plaintiff was cross-examined was about his involvement with cricket. The records of the Highett West Cricket Club confirm that in 2013-2014, the plaintiff played eight matches out of eleven. I accept that the plaintiff was playing cricket after the injury. He reported to Mr Ireland he played cricket but told Mr Jones he could not play cricket. This is inconsistent with the plaintiff’s evidence to the Court. The plaintiff’s evidence in Court was that playing cricket is not as enjoyable as previously. I accept that in the plaintiff’s first affidavit, he deposed to the fact that he was no longer playing cricket due to his left hand injury. I accept that the plaintiff overstated his inability to play cricket.
44 I formed the view the plaintiff made concessions and gave evidence that did not assist his case. In relation to his substance abuse, in July 2015, he agreed that he told Dr Baynes he did not take drugs, which was untrue. His evidence to the Court was that he had been affected by drugs in 2017 and 2018 which was untrue. The evidence is that he reported using cannabis daily from the age of sixteen. Since he was twenty-one years of age, he has used methamphetamine and GHB regularly.
45 In considering the credit of the plaintiff, I must consider the evidence as a whole. There was evidence in the plaintiff’s affidavits as to consequences that were not challenged by the defendant. My observation of the plaintiff was that he cooperated with the process, but on occasions, experienced frustration with the process. He gave evidence which was against his interest. I note that a number of the medical witnesses reported that there was no functional component in his clinical presentation. Overall, I accepted that there were concerns relating to his credit; however, I found the plaintiff, when challenged, provided clarification. As a result, I am more influenced by his evidence when it is supported by other objective evidence.
The current medical evidence
46 In August 2018, Mr Murray J Stapleton, plastic and hand surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. Mr Stapleton said the plaintiff had no pain in his left hand at rest, but reported an ache in cold weather. He had a loss of digital length and cannot manipulate small nails or buttons, although he is becoming adept at putting the pulp of the thumb to the pulp of the ring and little fingers when he is required to lift up small objects. The power of his grip is diminished.[11]
[11]PCB 118
47 Mr Stapleton said his condition is stabilised, in that the pulps of the index and middle fingers have normal sensation. Over the site of the flaps there is diminished sensation in those two areas. The plaintiff has lost half the length of the index finger. The fingernail bed is still alive, but as a result of the amputation, the left fingernail is “parrot-beaked”. He diagnosed a soft tissue loss involving, with amputations, the tips of his left index and middle fingers which he described as a significant injury.[12]
[12]PCB 119
48 Mr Stapleton said the plaintiff is restricted very much because of his lack of manipulative skill involving his left hand which, in this instance, is his non-dominant hand. The position is permanent. He does not have a capacity for pre-injury duties. He is an unskilled worker and should not be offered work where dangerous tools, such as drop saws, are part of his working-day activities. He does have a capacity for alternative duties, but will need job training to settle into a job that he could perform. He said the plaintiff could not work as a concreter.
49 In relation to the Vocational Assessment Report, Mr Stapleton said it was difficult to be precise about what the plaintiff can do, because duties of some of the jobs identified, such as concreters, couriers, picker/packers and sales assistants, vary. He concluded that provided the manipulative skill of his non-dominant hand is not part of a job requirement, he could work as a courier driver, picker/packer and sales assistant.[13]
[13]PCB 119-120
50 In June 2017, Mr Damian Ireland, hand surgeon, examined the plaintiff at the request of the defendant’s solicitor. He diagnosed a left hand dysfunction due to bony and soft tissue injuries to the index and middle fingers treated surgically.[14] He said the rateable impairments included the following:
“1. restricted motion index and middle finger distal joints
2. partial sensory loss radial digital nerves index and middle fingers
3. scarring
4. amputation to fingertips index and middle fingers.”[15]
[14]DCB 13
[15]DCB 14
51 Mr Ireland said the history of a mechanism of injury and the clinical presentation were consistent. There was no functional component to the plaintiff’s presentation. Further, the plaintiff is not able to engage in work that requires normal sensation and function of the left non-dominant hand. He is not able to engage in work that requires tripod pinching, such as steel fixing. His symptoms are aggravated by cold temperatures and he is, ideally, unsuited to outside work twelve months of the year. He is able to lift weights normally and otherwise engage in normal repetitive movements. With the restrictions he imposed, the plaintiff is able to work in suitable employment on a full-time basis. He is unsuited to be re-employed as a concreter, steel fixer or bricklayer’s labourer; however, he could resume work as a maintenance gardener.[16]
[16]DCB 14-15
52 In a subsequent report, Mr Ireland said there was diminished sensation in the pulp of the index finger, which was consistent with the functional symptoms he complains of, particularly of those movements that require tripod pinch. He said his finding was consistent with cold sensitivity, and the shortening of the fingers is consistent with awkwardness when doing fine motor movements that require tripod pinch. He further said it was not surprising the plaintiff has not sought any medical attention for his injured left hand since late 2012, as he was most likely told no further surgical treatment would assist him.
53 Mr Ireland reviewed the Facebook entries and doubted whether cold sensitivity is a major issue and doubted whether there were many other occupations, other than steel fixing, to which he would be unsuited.[17]
[17]DCB 17-18
54 In September 2016, the plaintiff was medically examined by Mr Ian Jones, orthopaedic surgeon. It was his view the plaintiff had suffered a traumatic amputation involving the left index finger, and severe laceration of the left middle finger, requiring full-thickness skin grafting. He said the plaintiff has been left with an impaired sensation in both fingers, with restrictions of movement, particularly in the index finger, and, to a lesser extent, the middle finger of his non-dominant hand. The skin over the area is hypersensitive to touch or being knocked, and there is paraesthesia over the volar aspect of both fingers.
55 Mr Jones said the plaintiff’s presentation was explicable in terms of objective signs. He could find no evidence of any non-organic or functional reaction. He accepted there were objective signs of restriction of movement, deformity and impaired sensation in the plaintiff’s index and middle finger of his left hand. He thought he would be best suited to clerical work.
56 Mr Jones accepted that the plaintiff’s restrictions in terms of the use of his index and middle fingers will persist, with continuing pain symptoms and impaired functioning in the long term. He did not anticipate any improvement in his level of symptoms.
57 In respect to his occupational restrictions, Mr Jones said those are limited solely to his left hand. The plaintiff reported the lifting capacity in his left hand would be about 10 kilograms, which excludes the use of his index and middle finger when lifting. He said any work which requires gripping involving his left hand would be difficult. He accepted that the plaintiff’s symptoms of pain in the left and middle fingers could be exacerbated by cold weather.[18] He did not markedly change the extent of disability in the plaintiff’s left hand after considering further material provided by the defendant.[19] Mr Jones suggested the plaintiff would be more suited to a clerical job as a result of his injured left hand.
[18]DCB 24-25
[19]DCB 27
58 In July and September 2017, Dr Michael Baynes, occupational physician, examined the plaintiff. The plaintiff reported increasing pain and aching in the tips of the fingers associated with cold weather. He has tenderness over the scar area, which increases pain with heavy pressure. This leads to him having some difficulty with forceful gripping and he tends to use his fourth and fifth fingers more so. The plaintiff reported that if he grips an item for a long period of time, particularly with some force, he tends to get pain and spasm in the muscles into his left forearm. He has some difficulty tying up his shoelaces and doing up buttons.
59 On examination, the plaintiff had altered sensation over the scar tissue over the radial side of the tip of the index finger and middle finger. Light pressure did not induce pain but force pressure did. Colour and temperature of the hand was normal. Dr Baynes said the plaintiff had a reasonable result from his surgery; however, he continues to suffer increased tenderness and pain, particularly in cold weather, over the tips of the index and middle fingers of the left hand.
60 Dr Baynes said the plaintiff was fit for normal work with his dominant right hand, but has restrictions in terms of working with his left hand, where he is unable to undertake full forceful gripping and fine pincher-type gripping with his left hand. He said the plaintiff was fit to undertake garden maintenance, operating a mower and trimmer, doing hedges, and is fit to use a broom and blower. He could perform light packing or assembling on a production line. He could work in a warehouse picking and packing and would be fit to work as a retail sales assistant. He would be fit to work as a weighbridge operator, forklift driver or courier. He would require on-the-job retraining and computer training.[20]
[20]DCB 2-5
61 All medical witnesses accepted that the plaintiff suffered an injury to his left hand, his non-dominant hand, in particular a loss of digital length due to amputation. He lacks manipulative skill in moving his left hand, has partial sensory loss and the injury is permanent.
62 I shall now consider the consequences of the plaintiff’s impairment to his left hand.
Consequences
Pain and sensitivity
63 The plaintiff reported ongoing pain, particularly in cold weather, to all the medical witnesses who examined him. His evidence was that his index and middle fingers are sensitive. The plaintiff’s evidence was that if he knocks his left hand, it is very painful, if only for a relatively short period, before the pain fades. He estimates that he knocks his hand, on average, once, or sometimes twice per day. The plaintiff’s evidence is that he takes over-the-counter medication of Panadol Plus or Mersyndol and, on average, takes six to eight tablets a week. In winter months, when his pain symptoms are worse, he takes more medication.
64 All medical witnesses accepted that the plaintiff would suffer sensitivity in his fingers if knocked. Mr Ireland doubted whether cold sensitivity was an issue for the plaintiff upon review of the additional Facebook material provided to him. However Mr Ireland did not examine the plaintiff after he was provided with the Facebook material. As such I place limited weight in relation to Mr Ireland’s opinion as to sensitivity.
65 I accept that the plaintiff suffers pain in his left index and middle fingers, which pain levels are higher in the winter months, that on occasions, which can be up to one to two times per day, the pain is greater. I accept that the pain is in the middle of the range and is managed by over-the-counter medication. I accept that, as a consequence, the plaintiff suffers sensitivity to his fingers, which occurs on a daily basis.
Treatment
66 The plaintiff’s evidence is that he has had little in the way of further treatment since the surgery he underwent. The plaintiff’s evidence was that Mr Morsi and the hand therapist told him that they could not offer him with further treatment. The medical evidence is that there is no further treatment that could assist the plaintiff. While Mr Jones could not understand why the plaintiff is taking Mersyndol, other medical witnesses made no comment about level of medication the plaintiff was taking. Mr Ireland said it was not surprising that the plaintiff had not sought further medical treatment since late 2012 as he was most likely told that no further surgical treatment would assist him. I accept that the level of treatment the plaintiff has is appropriate. I also accept that there is no further medical treatment the plaintiff can be offered.
Movement
67 The plaintiff’s evidence is that he has difficulty using his left hand for fine and manipulative-type activity. He has difficulty manipulating small nails or buttons. He cannot tie up shoelaces. All medical witnesses accepted he would have such difficulties. I accept that as a consequence of his injury, the plaintiff has difficulty using his left hand for fine and manipulative-type activities. I accept that this is a consequence I can take into account and is in the middle of the range.
Cricket
68 The plaintiff’s evidence was that he has played cricket for Highett West. He does not enjoy cricket as he did prior to the injury. He cannot catch effectively, and batting is difficult from the vibrations of the bat hitting the ball. I accept that the plaintiff was a keen cricketer prior to the injury. He can play cricket; however, playing cricket is not as enjoyable as it was prior to the injury. I accept this is a consequence which I assess as in the middle of the range.
Fishing
69 The plaintiff’s evidence is that he enjoyed fishing and would go fishing monthly with friends or on his own. Because of the lack of dexterity in his left hand, it is difficult for him to tie hooks and sinkers and remove hooks from the mouth of the fish. He is limited to fishing with other people, as he requires assistance and he gets too embarrassed asking for assistance. I accept this is a consequence which I can take into account and is in the middle of the range.
Gym
70 The plaintiff’s evidence is that he does not go to the gym at the moment due to financial reasons, because his life is unsettled and it is his intention of returning to the gym. He said that he will not be able to train as he did prior to his injury. I accept that there would be some limitation upon the weights that he could lift; however, given his evidence that his non-attendance at the gym is due to unrelated reasons, I assess this consequence at the low end of the range.
Work
71 At the time of his injury, the plaintiff was an apprentice landscaper. He had completed almost three months of his apprenticeship. He did not do well at school; he preferred working with his hands and outside. It was his ambition to work in a trade and run his own business. As a result of his injuries, he has now lost the opportunity to complete his preferred trade as a landscaper and the opportunity to run his own business. He has found it difficult to sustain employment, working with his hands, subsequent to the injury. He has had short-term employment as a concreter, gardener, bricklayer and laying synthetic turf. The plaintiff’s evidence is that he wishes to work outside. He cannot return to heavy work as he cannot do the heavy lifting, due to lack of strength in his left hand. Further, he can no longer perform work requiring fine motor skills, including operating many tools. He has a lack of dexterity in his left hand. Furthermore, his left hand is sensitive both to the cold and to being knocked. As a result, a large number of job options are closed to the plaintiff.
72 Mr Stapleton said the plaintiff did not have a capacity for pre-injury duties, he should not be offered work where dangerous tools, such as drop saws, are part of the working-day activities.
73 It was put to the plaintiff in cross-examination that one of the main reasons he has not been able to work over the past six years is because he lost his licence between the period of November 2012 and November 2014.[21] The plaintiff disagreed with the proposition. The plaintiff agreed that he also has had his licence disqualified since mid-2017 and is currently not licensed.[22] The evidence was that during some of the time he was unlicensed, the plaintiff worked. There was no evidence before me that the plaintiff’s inability to work was due to his licence disqualifications.
[21]T25, L12-15
[22]T25, L31
74 Further, counsel for the defendant submitted that the plaintiff’s substance use, incarceration, homelessness and licence disqualification would be hurdles in the way of the plaintiff being able to return to work.
75 In considering the plaintiff’s application, I have considered the physical impairment and consequences which the plaintiff suffers as a result of the work-related injury and whether these consequences meet the requisite test.
76 I accept that as a result of the medical evidence, the plaintiff has lost the opportunity of completing his preferred trade as a landscaper as a result of the work injury. I accept this is a consequence I can take into account in assessing pain and suffering consequences.[23] I assess this consequence at the higher end of the range. I also note that the plaintiff has had difficulty sustaining employment. His employment has been generally short term. He suffers a loss of strength in the left hand, a loss of fine motor skills and difficulty operating tools. He has difficulty holding a nail when he is hammering. He suffers pain in his fingers, particularly in cold weather, and his left hand is painful if his fingers get knocked or bumped. He says this occurs, on average, twice per day. None of these consequences were challenged. I accept that for a plaintiff who only has his physical skills to offer an employer, this is a consequence which I would assess at the higher end of the range. I also take into account that no medical witness has suggested this is likely to improve.
[23]Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
Retained capacity
77 Counsel for the defendant submitted that the plaintiff has retained the capacity to engage in a social life, cricket, skateboarding, surfing and motorbike riding; however, this must be considered with what the plaintiff has lost.
Conclusion
78 I accept the plaintiff has suffered the abovementioned consequences. Those consequences are supported by the evidence of the plaintiff and the medical evidence. I accept the plaintiff had a physically active life prior to his work accident
79 I am satisfied that the plaintiff was involved in a work accident which, to this plaintiff, resulted in him experiencing symptoms of a physical nature. The consequences of his left hand injury alone have impacted upon his life as he knew it before the work accident. He has suffered for six years and the medical evidence is that the injury is permanent. The evidence is that he can no longer engage in pre-injury work which was physical outdoor work, work which he enjoyed. The plaintiff has limited education and has always wanted to work outside. He has attempted other physical work, working outside with limited success because of his left hand injury.
80 The plaintiff is aged twenty-eight. I accept that he has these restrictions for the rest of his life. Based on the comments made by the Court of Appeal in Stijepic v One Force Group Pty Ltd[24] where a man or woman has to put up with impairment consequences for another forty years, those consequences are more likely to be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
[24]Supra
81 For the foregoing reasons, I am satisfied that the plaintiff has established that the consequences to him of his impairment can be reasonably described as being “serious”. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful. In considering the consequences, I have not treated each consequence as equal, but, rather, attributed appropriate weight to each consequence in light of the evidence.
82 I accept that the left hand injury has consequences to the plaintiff that, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of hearing, as being at least very considerable and certainly more than significant or marked. In making this assessment, I have looked at the consequences of the left hand injury alone.
83 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for pain and suffering as a result of the left hand injury suffered in the work accident.
84 As I have found for the plaintiff with respect to the physical injury, I shall now address the disfigurement/scarring the plaintiff suffered.
85 The plaintiff has lost half the length of the left index finger. The fingernail bed is still alive, but the left fingernail is “parrot-beaked”. The index finger is 1.5 centimetres shorter than the one on the right hand. The distal interphalangeal joint of the left index finger is fixed at zero degrees, the proximal inter-phalangeal joint flexes and extends normally. The middle finger has lost 0.5 centimetres of digital length. The distal interphalangeal joint flexes and extends normally. On the radial side of the left index finger, there is a 4 x 1.5-centimetre well settled in flap, with reduced sensation, and the flap on the radial side of the middle finger extends to 2 x 1 centimetre, which has reduced sensation.
86 The nails on the affected fingers do not grow properly and are difficult to cut. The scar on the right side of the chest is tender and extends over an area of 5 x 4 centimetres.
87 I accept that the disfigurement/scarring is permanent. The plaintiff’s evidence is that he is embarrassed by the look of the left hand. He often walks around with his left hand in his pocket. The scarring is a constant reminder of the accident. On the evidence before me, I do not consider the plaintiff’s disfigurement/scarring to his left hand meets the test for seriousness for the following reasons:
(a) The left index finger and middle finger are scarred and reduced in length in comparison to the fingers on the right hand;
(b) As a consequence of the scarring to the left hand, the plaintiff suffered scarring to the chest. This is a consequence I can take into account; however, the scarring to the chest was 5 x 4-centimetres long, not of even tone and not overly obvious. I considered the scarring to the chest to be faint;
(c) The residual scarring is at the low end of the range;
(d) The plaintiff agreed that his hand had healed well;
(e) I accept that the plaintiff experiences some level of embarrassment due to the scarring which I consider is at the low end of the range;
(f) There was no medical evidence before me that the scarring will have any ongoing functional impairment.
88 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[25]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[25][1998] 1 VR 702 at paragraph [13]
89 Section 93 of the Act was intended to restrict the availability of common law damages to plaintiffs whose impairments were of “very considerable” magnitude.
90 Section 134AB(38)(c) of the Act adopts the language as in s93 of the Transport Accident Act. As such, I rely upon the same reasoning as would be relied under the Transport Accident Act.
91 In determining the application, it is has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[26]
[26]See Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at 628 and Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
92 I accept that left hand scarring and disfigurement has had consequences to the plaintiff which are considerable, but I am not satisfied that, when judged by a comparison with other cases in the range of possible impairments, the injury can fairly be described as being “more than significant or marked”, and as being “at least very considerable”. In reaching my decision, I have read a number of authorities and previous County Court cases in which serious injury applications involving scarring and disfigurement worse than or similar to the plaintiffs have been rejected.
93 A number of cases have discussed the extent of scarring and disfigurement which amounts to serious disfigurement/scarring within the legislation requirements. The plaintiff’s disfigurement/scarring is not consistent with what cases have described as “serious”.
94 Accordingly, I grant the plaintiff leave to bring proceedings to recover damages for pain and suffering in relation to his left hand injury suffered at work on or about 14 September 2018.
95 I will hear the parties on costs.
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