Balcar v Tenix Defence Pty Ltd

[2010] VCC 480

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT WODONGA
CIVIL DIVISION
DAMAGES – COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-10-00881

JOHN WAYNE BALCAR	Plaintiff
v
TENIX DEFENCE PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Wodonga
DATE OF HEARING:	7 May 2010
DATE OF JUDGMENT:	13 May 2010
CASE MAY BE CITED AS:	Balcar v Tenix Defence Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VCC 0480

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – assessment of severity of pain and suffering consequences of partial amputation of non-dominant middle finger.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T S Monti with	Nevin Lenne & Gross
Mr G Pierorazio
For the Defendant	Mr W R Middleton SC with	Wisewould Mahony Lawyers
Ms J M Forbes
HIS HONOUR:

1          In this application, the plaintiff seeks leave to commence a proceeding claiming damages for the pain and suffering consequences of an injury suffered in the course of his employment with the defendant on 14 May 2008 in which he suffered a partial amputation of his left middle finger.

2          In the course of the application, the plaintiff gave evidence and was cross- examined. Otherwise the parties relied upon the contents of their respective Court Books which included two affidavits sworn by the plaintiff, the first on 19 October 2009 and the second on 20 April 2010, together with a number of short medical reports.

The Plaintiff’s Affidavit Evidence

3          The plaintiff is forty-five years of age and is a motor mechanic by trade. In his first affidavit, he deposed to the fact that:

•  Notwithstanding the partial amputation of his left middle finger, he has returned to full-time employment with the defendant. Whilst he is able to perform the duties required of him on an unrestricted basis, his injury causes him problems which he described as being present all day, every day in the course of his work and which included:

(i)      the presence of a strange sensation at the amputation site together with extreme sensitivity in his finger;

(ii)     the presence of redness and inflammation at the amputation site;

(iii)   difficulty performing fine manipulative movements involved in his work, such as those involved in dealing with nuts and washers and the presence of pain associated with some of the tasks he is required to perform;

(iv)   a tendency to drop tools and other items which, if they fall into awkward spaces, can be difficult and time-consuming to retrieve.

• His injury has had a significant and deleterious impact upon his lifestyle, in that it has robbed him of his principal social hobby which involved guitar playing. In addition, he described difficulty in performing activities involving his left hand, such as preparing food and riding his Harley Davidson motorbike. In the latter activity, the plaintiff said that the position in which he held his finger constantly interfered with the adjustment of his rear-vision mirror. The plaintiff said that his injury interfered with his ability to perform any activity which required strong and reliable grip strength in his left hand, and deposed to the fact that his injury –

“… is a constant source of irritation, frustration and difficulty … Because I am a motor mechanic I must suffer the consequences every day, day in day out for the rest of my working life.”

4          In his second affidavit, the plaintiff said that:

• The phantom pain which he had previously experienced on a regular basis had subsided so that it was now only occasionally present;

• Whilst he had commenced playing the guitar as a child, he returned seriously to the instrument when he was twenty-nine. Since that time he had undergone guitar lessons over a continual period of three years, and thereafter practised and played regularly, from which he derived considerable pleasure, enjoyment and satisfaction;

• He had lost all ability to play the guitar. He had sold two of his three guitars but had kept one only for sentimental reasons;

• He continued to have difficulty undertaking tasks requiring good grip strength in both his hands, such as lifting heavy objects, using heavy machinery or tools.

The Viva Voce Evidence

5          The plaintiff was cross-examined by Ms Forbes, who appeared with Mr Middleton on behalf of the defendant.

6           My impression of the plaintiff was that he provided an accurate account of his symptoms and that he made no attempt to dramatise or embellish the effect of his injury upon him. To the contrary, I formed the impression that by returning to full-time employment and engaging in the activities which he described in the course of his cross-examination, the plaintiff was making every attempt to minimise the effect of the significant injury which he has suffered to his left hand.

7          In the course of his cross-examination, the plaintiff gave evidence that he had returned to full-time employment with the defendant.

8          The plaintiff said that in performing his work he had lost dexterity in his hand and that his ability to undertake finer motor movements had been adversely affected. He described continually dropping nuts, washers and tools and said that this impacted upon his ability to work efficiently. He said however, that his difficulties at work in terms of dropping things were not such that they had caused him to fall behind.

9          He said that:

• the phantom pains from which he suffered which were more appropriately described as involving an unpleasant sensation, had largely subsided and that he experienced these symptoms only on an irregular basis;

• he owned a lifestyle 30-acre block at Eskdale which he attended almost every weekend and that he there undertook activities, including repairing fences, riding motorcycles and spraying blackberries. He described making use of implements, including pliers, a crowbar and fencing strainers, whilst maintaining his fencing.

• he also said that he took part in the ongoing renovation of the house on the property when he could organise friends to come to assist him.

10        The plaintiff described a difficulty in making use of a computer keyboard, commenting that he was never a great typist but that he found things more difficult since his injury.

11        The plaintiff said that in performing his work, the dexterity in his finger had been lost and his ability to undertake the finer motor skills had been adversely affected. He confirmed his affidavit evidence that he experienced problems in regularly dropping nuts, washers and tools and that this impacted upon his ability to work efficiently.

12        He said that his body had adapted to his injury but that he had suffered the loss of at least 20 per cent of the grip strength previously present in his left hand and that this was a noticeable loss.

13        The plaintiff described the presence of extreme sensitivity on the underside of his finger which, although not painful, involved an unusual sensation, such as when his finger contacted something he was caused to immediately withdraw his hand. In those circumstances, he described carrying his finger in such a way as to attempt to avoid casual contact with the finger.

14        The plaintiff said that whilst he continued to engage in social interaction with his friends, he no longer attended jam sessions nor was he able to play the guitar. He said that his hand impacted upon his ability to ride a motorcycle, in that he would knock his finger on the mirror as it tended to sit up.

The Medical Evidence

15        The medical reports relied on by the parties attest to the fact that the plaintiff suffered an injury to his left middle finger in the course of his employment, in treatment of which an amputation of the middle finger in the region of the distal end of the middle phalanx was undertaken.

16        In a report dated 17 August 2009, Mr Anthony Buzzard, general surgeon specialising in spine and upper and lower limbs, reported his findings on examination of the plaintiff’s left hand in the following terms:

On examination, there was an amputation of the left middle finger distal end of the middle phalanx through the distal interphalangeal joint. The amputation stump was well-healed, albeit that there was some ‘tingling’ in the volar aspect of it. I could not palpate any specific neuroma. There was some callusing on the finger indicative of use. There was full movement of the metacarpophalangeal joint of the finger. Movement of the proximal interphalangeal joint of that finger was to 70 degrees of flexion. No other significant abnormalities were noted.”

17        Mr Buzzard commented upon the effect of the injury in the following terms:

“So far as his employment capacity is concerned, I think he is capable of full work … With regard to his social and domestic situation, I think it is reasonable to accept that he is no longer able to appropriately play a guitar.”

18        In a report dated 24 February 2010, Mr John O’Brien, orthopaedic surgeon, noted on physical examination that the plaintiff had lost approximately three centimetres in length of his left middle finger. He noted that the plaintiff described a definite sensory change over the distal and volar aspects of the stump, and described the grip strength in the plaintiff’s left non-dominant hand as being a little limited.

19        Mr O’Brien opined that whilst the plaintiff retained reasonable function in his hand, the hand was by no means asymptomatic, and that although the plaintiff had been able to return to his pre-injury occupation, he suffered from a disability in the performance of his work associated with his injury which would affect not only his employment but his general, social, domestic and recreational activities on a permanent basis.

20        In a report dated 17 February 2010, Mr Murray Stapleton, a plastic surgeon, noted that the plaintiff had suffered an amputation through and including the distal interphalangeal joint of his left middle finger. Mr Stapleton took no issue with the plaintiff’s history that he noticed awkwardness in the use of his left hand when performing activities such as operating a computer keyboard or undertaking fine manipulative movements.

Findings and Reasons

21        I am satisfied that it is appropriate to describe the plaintiff as being a straightforward, stoic witness. Indeed, the evidence given by him as to the effect of his injury upon him was largely unchallenged.

22        In assessing the consequences of the plaintiff’s injury upon his life and lifestyle my analysis must be informed not only by what has been lost but also to some extent by “what has been retained”.[1]

[1]             per Ashley, JA in Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at [27]

23        In undertaking the assessment required of me in this action, I take into account the plaintiff’s evidence in which he has described the impact which his injury has had upon his ability to work and also upon his recreational activities. In this regard, I am satisfied that the complete loss by the plaintiff of his ability to pursue his love of guitar playing constitutes a very significant loss to him in his enjoyment of his social and recreational life.

24        I am further satisfied that the plaintiff’s injury exposes him to many frustrating experiences on a daily basis, both in his working life and his recreational life.

25        Against these losses, I am required to weigh the fact that the plaintiff has been able to return to full-time unrestricted employment in his trade and that the difficulties which he encounters in his work have not been such as to:

(i)	require a modification of his duties; or
(ii)	to impair his ability to perform his work or his efficiency in the performance of his work such as to attract complaint from his employer.

26        I also take into account the activities about which the plaintiff has given evidence that he is capable of performing both upon his farm and in the course of his daily life. This evidence satisfies me that whilst the plaintiff’s injury may consistently impact to some degree upon the plaintiff’s ability to engage in a number of activities involved in daily life, it generally does not preclude engagement in those activities, given that the plaintiff is right-handed and that the injury has been occasioned to his non-dominant hand. My finding in this regard is reinforced by the fact that the plaintiff is able to carry out the duties required by his work which he describes as involving a requirement to be “very ambidextrous”.

27        Further, whilst the evidence establishes that the plaintiff continues to suffer from some hypersensitivity in his finger and occasional pain,

[2]               Mr Anthony Buzzard’s report of 17 August 2009

(i)	the finding that the wound is well-healed with the presence of some callusing[2] confirms my impression of the plaintiff’s evidence that he has been left with useful function in his finger which he employs both in his work and leisure activities;
(ii)	these symptoms do not cause him to avoid engaging in many manual tasks and their presence could not, in my opinion, be regarded as the equivalent of a condition causing chronic pain.

28        In weighing all the effects of the plaintiff’s injury upon his life and lifestyle, I am satisfied that it is appropriate to describe the impairment associated with the plaintiff’s injury as being “significant” or “considerable”. I am not satisfied, however, that, when undertaking an analysis of what has been lost by the plaintiff in comparison with what remains, and assessing his impairment in comparison with other cases in the range of possible impairments or losses of body function, that it is appropriate to describe the plaintiff’s impairment as being more than “significant” or “marked” and as being “at least very considerable”.

29        In the circumstances, I am not satisfied that the plaintiff has made out his entitlement for leave to commence a proceeding claiming pain and suffering damages in respect of the injury suffered by him.

30        I will hear the parties as to the orders sought as a result of my findings

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