Bath v Transglobal Group Pty Ltd (formerly t/as Plastic Technology
[2017] VCC 112
•1 March 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-01852
| SUKHRAJ SINGH BATH | Plaintiff |
| v | |
| TRANSGLOBAL GROUP PTY LTD (formerly trading as PLASTIC TECHNOLOGY) | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 November 2017 | |
DATE OF JUDGMENT: | 1 March 2018 | |
CASE MAY BE CITED AS: | Bath v Transglobal Group Pty Ltd (formerly t/as Plastic Technology | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 112 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – paragraphs (a) and (b) of the definition of “serious injury” – right-hand injury involving the index, middle, ring and little fingers – some deformity and scarring – a range case
Legislation Cited: Accident Compensation Act 1985 (as amended), s134AB; Transport Accident Act 1986
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Hunter v Transport Accident Commission [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Ellis Management Services v Taylor [2013] VSCA 326; 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 & Anor [2009] VSCA 181; Htoo v Victorian WorkCover Authority [2017] VSCA 321; Philippiadis v Transport Accident Commission [2016] VSCA 1; Woolworths v Warfe [2013] VSCA 22; Ingram v Ingram & Anor [1996] 2 VR 435; Baker v Transport Accident Commission & D’Alberto [1997] 1 VR 662; Transport Accident Commission v Garcia [2015] VSCA 225; Richards v Wylie (2001) VR 79; Haidar v Transport Accident Commission [2016] VSCA 182; Palmer Tube Mills (Aust) Pty Ltd v Semi; Transport Accident Commission v Streicher [1998] 4 VR 439; Mobilio v Balliotis [1998] 3 VR 833
Judgment: Application in relation to the claim under the paragraph (b) of the definition of “serious injury” dismissed. Application in relation to the claim under paragraph (a) of the definition of “serious injury” granted. Leave to the plaintiff to bring common law proceedings for pain and suffering damages in relation to his right hand injury suffered on or about 20 June 2009 during the course of his employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Fitzpatrick | Slater & Gordon Ltd Lawyers |
| For the Defendant | Ms C Spitaleri | IDP Lawyers |
HIS HONOUR:
1 By way of Originating Motion dated 1 May 2017, Sukhraj Bath (“the plaintiff”) seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) to bring common law proceedings to recover damages for an injury to his right hand (“the injury”) suffered by him during the course of his employment with Transglobal Group Pty Ltd (formerly t/as Plastic Technology) (“the defendant”) on 20 June 2009 (“the injury”).
2 The plaintiff seeks leave to bring proceedings in respect to the injury for “pain and suffering damages” only within the meaning of s134AB(37) of the Act.
3 The plaintiff was the only witness who gave evidence and was cross-examined. Both parties tendered various documents.[1]
[1]See Annexure “A”
Relevant legal principles
4 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]
[2]See s134AB(19)(a) of the Act
5 The plaintiff initially relied on paragraphs (a), (b) and (c) of the definition of “serious injury” contained in s134AB(37) of the Act. At the commencement of the evidence, counsel for the plaintiff informed the Court that he no longer relied on paragraph (c) of the Act and essentially relied on paragraph (a) of the definition, but also maintained his claim under (b) of the definition, as there is some deformity of the fingers of the right hand.[3]
[3]Transcript “T”, Lines (“L”) 14-24
6 Paragraphs (a) and (b) of the definition of “serious injury” contained in s134AB(37) of the Act read:
“serious injury means—
(a) permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement;
… .”
7 The part of the body said to be impaired for the purposes of paragraph (a) and disfigured for the purposes of paragraph (b) is the right hand and, in particular, the ring, middle, index, and the little fingers of the right hand.
8 In order to succeed, the plaintiff must prove on the balance of probabilities that:
(a)The “injury” suffered by him arose out of in the course of, or due to the nature of, his employment with the defendant on or after 20 October 1999;[4]
[4]See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b)The “injury” and the resulting impairment for the purposes of paragraph (a) and the disfigurement for the purposes of paragraph (b) must be permanent, in the sense that it “ is likely to last for the foreseeable future”;[5]
[5]See Barwon Spinners Pty Ltd & Ors v Podolak (op cit) at paragraph [33]
(c)The “consequences”, to the plaintiff of any impairment or loss of body function in relation to paragraph (a) or disfigurement in relation to paragraph (b) of the definition of serious injury must be “serious” I refer to s134AB(38) and, in particular, paragraphs (b) and (c), which state:
“(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, … as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, … respectively;
(c) an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence … is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;” (Emphasis added.)
This test is sometimes referred to as the “narrative test”.
9 In determining the application, the Court:
(a)Must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) and/or for the purposes of paragraph (b) of the definition of “serious injury”. Such consequences can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[6]
(b)Must make the assessment of “serious injury” at the time the application is heard;[7]
(c)Must give reasons that disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application;[8]
(d)Notes that the question of whether an “injury” satisfies the narrative test is largely a question of impression or value judgment.[9]
[6]See s134AB(38)(h) of the Act
[7]See s134AB(38)(j) of the Act
[8]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [33]-[36]
[9]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraph [57]- [59]
The issues
10 I was informed by counsel acting for the defendant there was no issue that the plaintiff suffered an injury to his right hand during the course of his employment with the defendant on or about 20 June 2009. Counsel also informed me that the issue was that on the basis of all the evidence, it was contended by the defendant that the plaintiff failed to discharge his onus of satisfying the narrative test under the definition of “serious injury” whether it be under paragraph (a) or paragraph (b) of s134AB(38). Ultimately, it was described as a “range case”.[10]
[10]T3, L19 – T4, L5
The evidence of the Plaintiff
11 The plaintiff has affirmed two affidavits – the first on 23 December 2016,[11] (the first affidavit”) and the second on 4 September 2017[12] (“the second affidavit”).
[11]See exhibit 1, plaintiff’s first affidavit at pages 17-21 Plaintiff’s Court Book (“PCB”)
[12]See exhibit 1, plaintiff’s second affidavit at pages 22-25 PCB
12 By way of his first affidavit, the plaintiff gave evidence that he is a forty-four year old man[13] with two children aged approximately fifteen years old and seven years old. He is right-hand dominant.
[13]Born January 1973
13 The plaintiff was born in Punjab, India, and attended school in India to the age of eighteen years old, when he finished the equivalent of Year 12. On finishing school he worked at a transport company as a truck driver for about thirteen years, driving trucks in the Punjab, Bombay and Rajasthan.
14 In 2007, the plaintiff and his family migrated to Australia, where he obtained employment at Tip Top Poultry in Thomastown a few weeks after arriving in Australia.
15 On leaving Tip Top Poultry in early 2009, the plaintiff commenced work with the defendant in March 2009 at their Reservoir factory. He describes the defendant as being:
·A plastics technology company that recycles plastic which was used to manufacture other goods.
·He initially commenced as a process worker, but because he was a “hard worker” he was promoted to shift supervisor. He worked full time, but his hours changed every week, and he gives the example that he may work three days on and three days off or, alternatively, two days on and two days off.
·As a process worker, the plaintiff was required to work on different machines, one of which was called the “granulator” machine, which ground up plastic into small pieces so it could be recycled. The machine has several parts, including a motor, conveyor belt, along which the plastic travelled into a grinder, and above the grinder were two pipelines which sucked up the ground plastic. The granulator machine was located in a “pit” about eight to ten feet deep, and if the pipelines that sucked up the ground plastic needed to be changed, it was necessary to access the machine by going down a ladder in the pit.
§In particular, the plaintiff described the circumstances of his injury in the following terms:
“On 20 June 2009, I was working on the granulator machine with two brothers, Imran and Kamran Abbas. At about 8.30am, we were told to change the pipelines in the machine. Two of us went down into the pit. As there was no room to stand next to the conveyor belt to adjust the pipelines, I stood on top of the motor. I put my left hand out and touched the wall to steady myself. I was trying to unscrew the bolts of the conveyor belt to make it loose with my right hand so that I could change the pipelines when suddenly my foot slipped. My right hand was pulled by the conveyor belt into the machine and my fingers were crushed.”[14]
·Although he was wearing safety gloves, the plaintiff could feel his fingers had been crushed and when his right hand was taken out of the glove, the top of his ring finger fell to the floor.
[14]See exhibit 1, paragraph [12] of the plaintiff’s first affidavit at page 18 PCB
16 The plaintiff was conveyed by ambulance to St Vincent’s Hospital, where he stayed for about a week. On the second or third day he underwent surgery on his fingers and, in particular, the repair of the top of his ring finger, where the tip had been “chopped off”.
17 Thereafter, he underwent hand therapy for about five months at the Innovative Hand Therapy and Scar Management in Coburg. His fingers were in bandages for months after the surgery and he was required to take painkillers, such as Brufen, to help with the pain and stiffness in the fingers and joints. During that time, if he knocked his fingers on anything or bumped the top of his ring finger, the pain was agonising.
18 After being off work for two or three months, he was told by the defendant he had to return to work or he would lose his job. He was told he would be given light duties, and on his return he was given the same process-worker duties as he was performing prior to the injury. At that time his hand was still bandaged and he had to take time off work to go to various hospital appointments.
19 The plaintiff continued working at the Reservoir factory performing such duties until the defendant shut that factory in 2011, at which time it was announced the defendant would move the plastic recycling plant to Bendigo.
20 After the shutdown of the Reservoir factory, the plaintiff obtained work as a forklift driver with Somerville Retail Services (“SRS”) in Tottenham. He would turn the wheel of the forklift with his left hand and tried to use his right hand as little as possible.
21 The plaintiff tended to keep his right hand in his lap, out of sight, so no one could see the “chopped-off part of my ring finger or how my other fingers were crooked”.[15] The plaintiff had trouble driving the forklift in cold weather, because the cold made his finger joints ache, and it was difficult to move his fingers.
[15]See exhibit 1, paragraph [21] of the plaintiff’s first affidavit at page 20 PCB
22 The plaintiff remained at SRS for about eighteen months to two years and was forced to cease work as he was requested to work on a conveyor belt, which frightened him. Furthermore, he could not lift the boxes off the belt, which weighed about 20 kilograms, because his right hand would not grip or close properly any more.
23 After the plaintiff left SRS, he did not work for about two years and he stayed at home while his wife was working. In particular, he claims he was “very, very embarrassed by the way my fingers looked and it was too hard to get a job where I didn’t have to use my right hand”.[16] In this respect, any process work which was available was all manual and heavy, and he needed “two good hands to do it”.[17]
[16]See exhibit 1, paragraph [23] of the plaintiff’s first affidavit at page 20 PCB
[17]See exhibit 1, paragraph [23] of the plaintiff’s first affidavit at page 20 PCB
24 Through the help of friends, the plaintiff ultimately obtained a job with Ron Finemore Transport, driving trucks. He had previously obtained a truck-driving licence, but had been worried that his English was not good enough to drive trucks in Australia. He describes Ron Finemore Transport being supportive, and that he was trained for a month before he started.
25 The plaintiff asserts that Ron Finemore Transport knew about his hand injury and did their best to help him when they could. He had to move to Albury in New South Wales so he could work with Ron Finemore Transport, and stayed there for about three years.
26 The plaintiff is now living in Victoria again and driving trucks as a casual worker for a company called Alvaro Transport, and he worries if he has too much time off he will lose his job, so he tends to work as much as he can, even when his fingers are hurting.
27 In particular, as at the date of declaring his first affidavit, the plaintiff asserts that the fingers on his right hand still “hurt all the time.”[18] Furthermore, he asserts that he has “no feeling in the tip of my right ring finger where it was chopped off”.[19] He also describes that his index and middle fingers are “crooked and bent and I can’t make a fist anymore because my fingers won’t close all the way”.[20]
[18]See exhibit 1, paragraph [26] of the plaintiff’s first affidavit at page 20 PCB 20
[19]See exhibit 1, paragraph [26] of the plaintiff’s first affidavit at page 20 PCB 20
[20]See exhibit 1, paragraph [26] of the plaintiff’s first affidavit at page 20 PCB 20
28 In particular, the plaintiff describes that it is very painful if he accidently bumps his fingers and that the joints in all four fingers hurt a lot, especially when it is cold. In winter, the pain in his joints wakes him up in the middle of the night.
29 Even though his fingers hurt, the plaintiff only takes Panadol to control the pain, and he has been told by his doctor that he should not take strong painkilling medication because it may affect his driving, and because his employer tests for drugs. He does not attend his doctor very often because of the hand condition as he had the surgery and the hand therapy afterwards, and now he just has to do “the best that I can”.[21]
[21]See exhibit 1, paragraph [27] of the plaintiff’s first affidavit at page 21 PCB
30 The plaintiff also asserted in his first affidavit that:
·He does not have much strength in his fingers now and cannot carry heavy things or large bulky objects. He can still carry smaller light items.
·Because of the missing tip of his ring finger, he has to change the way he does things – for example, when he is getting dressed it takes him longer to do up the buttons of his shirt, and when he does up shoelaces, he just uses his thumb and index finger.
·Although he can still drive, he uses the palm of his right hand to steer the wheel.
31 Prior to the injury, the plaintiff enjoyed gardening and had a vegetable patch. He is unable to perform gardening now because of his fingers, and he cannot help his wife in the kitchen as he used to. Furthermore, he cannot play cricket with his children anymore, or any games which involve using his hands, because if he bumps or knocks his fingers the pain is terrible.
32 The plaintiff can still write with his right hand, but his writing is “very messy”.
33 In particular, the plaintiff is very embarrassed by the way his fingers look and the things he cannot do with them now. He tries to hide his fingers behind his thumb and does not tell people about his hand when he meets them, and tries to hide the hand so they will not see the bent fingers or the missing tip.
34 The plaintiff asserts that his hand makes him feel “ashamed” and that he should be able to look after his family and do all the things a husband and father should do, but now feels “helpless and self-conscious all the time”.[22]
[22]See exhibit 1, paragraph [32] of the plaintiff’s first affidavit at page 21 PCB
35 By way of his second affidavit, the plaintiff affirmed that his fingers on his right hand are now “permanently bent and crooked”[23] and, in particular, the middle finger of his right hand is the worse, and he feels embarrassed about that. He describes how his fingers and joints feel “permanently stiff” and that he cannot close his fingers all the way to make a fist anymore.
[23]See exhibit 1, paragraph [4] of the plaintiff’s second affidavit at page 22 PCB
36 The plaintiff is conscious as to how his right ring finger appears, having lost about 1.5 centimetres from the top of his ring finger, including most of the nail. He is “extremely embarrassed” by such condition.
37 In particular, the plaintiff asserts the following:
“My fingers hurt and the joints ache since the accident. I have a ‘numb’ sensation in my fingers most of the time. This is especially bad in the tips of the fingers. Sometimes I will get a sharp jolt of pain in my fingers if I touch or brush up against something. I have to be very careful when I use my right hand because I don’t know what will cause the sudden pain. The numbness and pain is much worse in the winter. I have to constantly massage my fingers to try to keep them warm. Sometimes in winter the numbness is so bad that I can barely move my fingers at all and I cannot use my right hand. In the warm weather, my fingers still feel stiff but are a bit more flexible”.[24]
[24]See exhibit 1, paragraph [6] of the plaintiff’s first affidavit second affidavit at page 23 PCB
38 The plaintiff continues to see his general practitioner on an “as needs” basis. He cannot take really strong painkillers, as it would make him unsafe to drive. When the pain is really severe, he tends to take Panadol Osteo.
39 The plaintiff continues to work as a truck driver on a casual basis, with the hours fluctuating from, say, ten hours’ work a week, up to thirty or forty hours of work other weeks. Even though he is working, the problems with his right hand restrict the kind of trucks that he can drive. He cannot drive trucks where he would have to strap down the loads, or use buckles or straps, because he cannot use his right hand or fingers properly. Similarly, he cannot drive refrigerated trucks because the cold causes agonising pain and numbness in his fingers and makes it impossible for him to move the finger joint. He notes that at the moment he is driving trucks with containers on the back because they require minimal use of his right hand.
40 Although he is able to drive, the plaintiff is unable to grip the steering wheel with his right hand because the fingers of the right hand are so stiff. Instead, he uses his left hand to drive and tends to keep the right hand in his lap. If he needs to use the right hand to turn the wheel or steer, he tends to use the palm of his hand only.
41 Prior to the injury, his wife was very dependent on him around the house, and now he is restricted in what he can do. If he and his wife go shopping, he only carries light things in his right hand because the right hand is not as strong as it used to be. He cannot help with the cleaning or gardening around the house.
42 The plaintiff also notes that the injury has impacted on his children – his teenage son has to fill in for him and do chores that he used to do, and that he has to be careful playing with his younger son, who is six years old, as if he is too rough he will jolt the fingers and hurt them. His younger son loves cricket, but he [the plaintiff] cannot throw the ball properly anymore and cannot bowl.
43 Whereas the plaintiff used to assist his wife with cooking, he is no longer able to assist her in a meaningful way. In particular, he notes:
“… Indian cooking involves a lot of preparation and hand-chopping of base ingredients like garlic, ginger and onion. I am right handed and would usually use a knife with my right hand; however, because my fingers are bent I cannot hold the knife straight. My hand and fingers are weak now and this makes it hard to make cutting or chopping movements. Because my fingers are so numb, I will sometimes cut my fingers accidently and not notice that I’ve done it. I use (sic) to love cooking with my wife but now I feel useless.
I am a Sikh. At the temple, we have a custom called Langar. Langar is like a big community kitchen where we cook an endless stream of meals and serve it to everyone, free of charge. We prepare all the ingredients for the dishes, cook the food and serve it to people. Everyone eats together. We all volunteer our time and effort. It is a vital part of our tradition and culture. It is also very social. Now, I cannot cook or serve the meals or help with Langar. I still go to temple, but all I can do is cook the food and watch while others prepare it. I wish I could join in and help but my fingers are so bad that there is nothing useful I can do. This makes me incredibly sad and depressed. I feel like I have lost a huge part of my culture.”[25]
[25]See exhibit 1, paragraphs [15]-[16] of the plaintiff’s second affidavit at page 24 PCB
44 At the commencement of his evidence-in-chief, I permitted counsel for the plaintiff (with no opposition from counsel for the defendant) to expand on this aspect of his evidence. I refer to the following evidence. The plaintiff was asked to clarify what the position is now in relation to his involvement in the custom called Langar. In particular, the following evidence was given:
Q:“… So I just wanted you to clarify what’s the position now, what’s the extent of your involvement, if you could clarify that for His Honour, please?---
A:Because I believe in God and I want to help out, I do something over there to help out so that I could reaffirm my faith in God.
Q:But what does he do, perhaps just explain to His Honour what actually does he do?---
A: Before I used to cook for everybody, now I take a few Panadols and I help out in cutting and doing things.”
HIS HONOUR:
Q: “Do you do any cooking now?---
A: No.
Q: You just do preparation?---
A: Yes, at the moment.
Q: How often does the Langar festival or custom, how often does it occur?---
A: It is served every day.
Q: I see. And how often do you – well, perhaps before your injury, how often did you go?---
A: I used to always go on my off days, Saturday/Sunday.
Q:And what’s the situation since your injury?---
A:Before I used to go early morning and help chop up, but now because the knife doesn’t run properly in my hands I go and help out in different ways.
Q:So you still go on Saturday and Sunday but help out in different ways?---
A:I go much less, not every Saturday/Sunday.
Q:Yes. And why do you go much less?---
A:Because when I go there I cannot do the work properly so my heart is broken.”[26]
[26]T6, L7 – T7, L1
45 Whenever the plaintiff goes out, he tries to protect his hand as much as possible so that he does not accidently knock it, or his fingers, and cause pain. Furthermore, he is “terribly embarrassed” by the way his fingers look and that he cannot use them properly. He tends to keep his right hand in his pocket whenever he can, and when he sits down, he tucks his fingers underneath his hand in a loose fist, “so people can’t see the fingers …”.[27]
[27]See exhibit 1, paragraph [17] of the plaintiff’s second affidavit at page 25 PCB
46 Before referring to the cross-examination of the plaintiff I believe it will be of some assistance to refer to the other material relied on by the plaintiff.
The evidence of the wife of the Plaintiff, Mrs Maninder Bath
47 I refer to the affidavit of the plaintiff’s wife, Maninder Bath, affirmed on 7 September 2017.[28] In that affidavit, Mrs Bath asserts that she is the wife of the plaintiff and is presently forty-two years old, and employed as a nursing assistant in an aged-care facility. Mrs Bath also asserts that she was well aware of her husband injuring himself on or about 20 June 2009, when working for the defendant.
[28]See exhibit 1 at pages 25A-25B PCB
48 Mrs Bath describes how she often sees her husband in pain, depending on the weather, and such pain seems to be much worse in cold weather. Furthermore, from her observations, it also hurts her husband when he bumps his right hand on something or overuses it. When her husband is in a lot of pain, she describes him taking a Panadol Osteo, which seems to help, and sometimes she massages the hand with oil or cream to help soothe the pain. She would estimate she would do this approximately twice a week.
49 Mrs Bath also asserts in her affidavit that since the plaintiff’s injury, he spends much less active time with their two children, and they usually sit on the couch now and watch television, and hardly ever play cricket anymore, as the plaintiff has trouble holding the bat. Sometimes they play soccer together at the weekend.
50 Mrs Bath describes that prior to the injury the plaintiff enjoyed gardening every weekend, but now only does gardening about twice a month at best, and if the weather is cold, avoids gardening altogether. In particular, she asserts:
“My husband’s favourite thing to do was to cook. It is a big part of our culture. We loved cooking together and we do not do that often anymore. He cannot do much in the kitchen as he has trouble gripping things properly and using a knife to cut or chop vegetables. If he tries to chop vegetables, he cannot do it properly, so he avoids doing it. When he helps out in the kitchen, he generally only stirs food in the pots with his left hand.
We attend cultural events with our community where a lot of cooking takes place. My husband used to help out in the kitchen every time, but he can rarely do anything now. After his injury he would sometimes stir the food with his left hand but he has not done that for the last two years. I am not sure why he has stopped.”
He still sometimes helps me with the dishes or the washing. It is not easy for him to do. Again, if it is very cold, he avoids doing household chores as his pain worsens.”[29]
[29]See exhibit 1, paragraphs [10]-[12] at page 25B PCB
51 Mrs Bath notes that her husband now brushes his teeth with his left hand and she observes that he has a lot of trouble holding stuff properly in his right hand as his grip appears not to be strong. She has also observed that he cannot make a fist properly with his right hand.[30]
[30]See exhibit 1, paragraph [14] at page 25B PCB
52 Although noting that her husband can dress himself, it takes longer to put on shirts with buttons, and he uses both hands to put on socks and shoes, but also relies more on his left hand. Mrs Maninder often sees him hide his hand in front of others, as he is embarrassed and does not want to be asked questions. She notes that “His fingers are crooked and his ring finger looks strange to most.”[31]
[31]See exhibit 1, paragraph [17] at page 25B PCB
Medical and other reports relied on by the Plaintiff
53 The plaintiff relies on an ambulance report dated 20 June 2009.[32] In that report ambulance officers detail how they attended the plaintiff at his workplace on 20 June 2009. They also record how his right hand fingers became stuck between a moving belt of a plastics machine on that day, causing amputation of the tip of the right middle and ring fingers, and minor lacerations to the other fingers of the right hand. In what is referred to as a “secondary survey”, the officers noted:
“venous bleeding approx 10 ml; Right Middle Finger partial amputation; Right Ring Finger partial amputation; dislocation; normal movement; normal sensation, normal temperature; laceration superficial >> To parts of R hand from machine.; nausea
No altered conscious state; … deformity; degloving; reduced movement..”[33]
[32]See exhibit 2, at pages 29-32 PCB
[33]See exhibit 2 at page 30 PCB
54 The plaintiff relies on various reports from St Vincent’s Hospital and, in particular, I refer to the report dated 10 August 2017.[34] In that report, an officer of the Quality and Risk Unit of the hospital describes that the plaintiff was admitted through the Emergency Department at St Vincent’s Hospital on 20 June 2009. He had sustained “severe injuries to his right hand after his hand was caught in a machine at work resulting in lacerations to his right index, middle and ring fingers and little finger”.[35]
[34]See exhibit 2 at pages 36-37 PCB
[35]See exhibit 2 at page 36 PCB
55 On 21 June 2009, the plaintiff was admitted under the hand surgical team and underwent repairs to the lacerations, after which he was treated with antibiotics and discharged on 21 June 2009, with ongoing oral antibiotics. His hand was splinted with immobilisation and elevated, and the surgical result appeared good. He continued to have follow up in the Plastic Surgical Outpatients Clinic and underwent rehabilitation to the Hand Therapy Unit, which was continued through June and July 2009.
56 It is also recorded in the report from the Quality and Risk Unit, dated 10 August 2017, that the plaintiff had stiffness in his middle and ring finger, and reduced sensitivity of his ring finger. He continued with hand therapy and in his last review on 7 April 2010, he had shortening of his ring finger, but “his functional status was good”.[36] He was discharged at that stage from the clinic, and there is no evidence that he had any further attendances after that date.
[36]See exhibit 3, at page 36 PCB
57 An x-ray of the right hand was undertaken on 20 June 2009 at St Vincent’s Hospital.[37] The x-ray was reported on as follows:
“There is loss of tissue in the tip of the 4th finger and possible (sic) in the middle down to the bone with the possibility of fracture of the terminal tuft of the right ring finger. Clinical correlation recommended.”[38]
[37]See exhibit 2, at page 28 PCB
[38]See exhibit 2, at page 28 PCB
58 I also refer to a further x-ray of the right hand undertaken on 3 August 2017[39] at the request of Dr Humaith Aboobacker. The radiologist reported the clinical details to be:
“Past history of trauma and surgery in 2009. Pain at the finger IP joints.”[40]
[39]See exhibit 2, at page 28A PCB
[40]See exhibit 2, at page 28A PCB
59 The radiologist also reported:
“Amputation of the right fourth distal phalanx at the level of the proximal shaft noted.
Mild OA is demonstrated at the STT, first CMC and all IP joints.
No other bone or joint abnormality is identified. No erosion.”[41]
[41]See exhibit 2, at page 28A PCB
60 The plaintiff was medico-legally examined by Associate Professor Felix C Behan on 31 July 2017.[42] Associate Professor Behan obtained a history with the assistance of an Indian interpreter.
[42]See exhibit 3, at pages 40-69 PCB
61 In particular, Associate Professor Behan detailed what he believed to be the clinical history:
(a)After what he reported to be a “lengthy delay” in the Emergency Department at St Vincent’s Public Hospital,[43] the plaintiff finally underwent a procedure involving an arm block, and from the description, Associate Professor Behan considered this consistent with a skin graft to the tip of the right ring finger and possibly to the right middle finger as well. Furthermore, there was a K-wire stabilisation of the right ring finger;
(b)He was discharged within twenty-four hours and underwent Outpatient Hand Clinic treatment on a weekly basis during the dressing phase of the management before being transferred to hand therapy;
(c)In the Hand Therapy Department, there was involved the removal of K-wires;
(d)Associate Professor Behan considered that because of the “sluggish return of function and the poor range of movement in recovery and the inability to make a full power grip when making a fist”,[44] the plaintiff described having a third procedure which he called “electric shock” therapy. Associate Professor Behan queries whether this was a form of TENS machine electric stimulation to the right upper limb to expedite an improved range of movement.
Associate Professor Behan does note that the plaintiff cannot make a full right fist and has a weak power grip of the right hand, as assessed on the Dynamometer.
[43]The plaintiff had given a history that he had been there two days, but the records would suggest that he was admitted on the day of injury and surgery was undertaken the following day, after which he was discharged on the same day.
[44]See exhibit 3, at page 41 PCB
62 At the time of the examination, the plaintiff complained of the following:
(a)A reduced power grip with lack of dexterity in doing fine manipulative tasks;
(b)Being disturbed at the non-axial alignment of the middle and ring fingers which contributed to the poor gripping mechanism of the right hand;
(c)The ulnar power grip is deficient, and this limits the handling of heavy machinery necessary in his trade as a process worker (Associate Professor Behan notes he cannot hold a hammer safely);
(d)Has continuing pain sensation in the digits of the right hand along the line of the proximal phalanges (index, middle, ring and little fingers). Even dorsal stimulation on the back of the hand causes him to withdraw the hand in any tight situation;
(e)He takes Panadol for pain;
(f)The MCP joints were constantly painful, and this was a factor in preventing his early return to work as a process worker. He took on truck driving as a last resort as he needed to work for family reasons.
63 Associate Professor Behan noted that he undertook a “thorough physical examination” and the clinical signs were also verified by the appearance as shown on dated digital photography. In particular, I refer to the following images and comments made by Associate Professor Behan:
(a)Photograph 1 shows the outstretched hands of the plaintiff, and the amputation level of the terminal phalanx of the right ring finger is noted with an estimated loss of approximately 1.5 centimetres. Associate Professor Behan notes that the injury indicated a fragmentation/fracture of the terminal phalanx of this digit and the subsequent reconstruction repair as a result of this deformity. The angulation of the terminal phalanx of the right middle finger caused the plaintiff concern from a point of body image deformity;
(b)Photograph 1A shows the digits in the adducted position to gauge the approximate loss of 1.5 centimetres. Furthermore, most of the nail and germinal matrix has gone, and the nail remnant causes irregular beaking and needs constant paring;
(c)Photograph 3 shows the hand in the flexed position and one can appreciate there is a loss of up to 1 centimetre of pulp to the palmar surfaces of the right ring finger. Associate Professor Behan notes this has an effect on his ulnar power grip and the overall 5-kilogram rating of power in the right hand. He notes that this causes a reduced power grip with handling tools of trade and difficulty with a steering wheel because of the deficiency, and needs to have a bimanual grip. A comparison with the normal appearance on the left side with the incomplete fist on the right reflects to the 5 degrees reduced range of movement in flexion of extension, middle and ring fingers;
(d)Photographs 6, 7 and 8 involve testing of sensory loss of the right index, middle and ring fingers, using a De Mayo 2PD. Associate Professor Behan notes that the claimed sensory losses:
“… are hard to explain as there is no obvious division of the digital nerves anywhere and as explained above direct compression may be the only viable clinical explanation”.[45]
[45]See exhibit 3, at page 48 PCB
64 When queried as to the plaintiff’s present work capacity, Associate Professor Behan says that he can work as a truck driver that allows him to have a bimanual grip. In particular, he states:
“He needs mainly to drive with the (L) hand with a token contribution from the (R) for safety and support.”[46]
[46]See exhibit 3, at page 50 PCB
65 Although Associate Professor Behan could find “no clinical signs to indicate a bad future prognostic outcome”,[47] he did note that the plaintiff “cannot and is reluctant to go back into any industrial process working environment”.[48]
[47]See exhibit 3, at page 52 PCB
[48]See exhibit 3, at page 52 PCB
66 In a later email exchange, Associate Professor Behan confirmed that there is a deficient ulnar power grip in the right hand because of the loss of the distal pulp and phalanx.
The cross-examination of the Plaintiff
67 Under cross-examination, the plaintiff was queried about what the records would suggest was his last attendance at the Outpatient Clinic at St Vincent’s Hospital on 7 April 2010. In particular, it was put to him he was told at that time that he had some shortening of his ring finger, but more particularly the functioning of his right hand was otherwise “good”. In response to that, the plaintiff stated:
“They didn’t say that, they said that with time it might correct itself, but it will never get back to what it was.”[49]
[49]T9, L1-3
68 It was also put to the plaintiff that since 7 April 2010 – that being the last date he attended the Outpatient Clinic – that he had no further medical treatment. In particular, the following evidence was given:
Q: “… after that review on 7 April 2010 they discharged you from the clinic didn’t they?---
A: Yes, they stopped.
Q: And you’ve had no further treatment for your right hand since April 2010?---
A: They told me that this is a long time – long-term process and that I had pain and there was nothing about that that they could do to help me.
Q: All right, but my question to Mr Bath was, that since April 2010 you have not seen a doctor, or been to a hand therapist, or had any treatment for your right hand since that date?---
A: Because the doctors had told me that they had done what they had for my hand, and they weren’t capable of doing anything more for me.”[50]
[50]T9, L18-30
69 When directly queried by the Court whether the plaintiff had seen any doctors or hand therapists for his right-hand condition since April 2010, the plaintiff stated:
“I just continued to see my private doctor because he said to have Panadol Osteo, and on that basis the company gave me light weight [work] duties to do.”[51]
[51]T10, L9-12
70 The plaintiff confirmed that over the years he has gone to the Hanson Medical Centre and the Tristar Medical Group and has been told that he just must take medicine to alleviate his pain. He also noted that he has been going to a doctor in Epping at the Epping Clinic, and that when the pain in his hand increases he goes there. He could not recall the last time he saw a doctor at the Epping Clinic in relation to his hand.
71 The plaintiff was referred to the subpoenaed medical records of the Hanson Medical Centre relating to his attendances.[52] Seemingly, such records run from approximately 20 February 2012 to 12 October 2016.
[52]See exhibit “B”, at pages 157-164 Defendant’s Court Book (“DCB”)
72 It was put to the plaintiff that he had attended that particular medical centre on about thirteen occasions over that period of time, to which he agreed. The following evidence then ensued.
Q: “And looking at those attendances, you went for things like the flu, and pain in your big toe?---
A:(Through Interpreter) Whenever I went there, I went for other things too, but whenever I complained about my hand I was always given the answer that ‘we can’t do anything further about that, you only have to continue taking Panadol Osteo.
Q:Well, Mr Bath, the records suggest that at none of those attendances did you complain about pain in your right hand?---
A:I have said that all the time. I told it to the doctors in Wodonga, I told it to Dr Santokh Singh in Epping. Always talk about it.”[53]
(sic)
[53]T11, L21-31
73 The plaintiff was also referred to the subpoenaed records of the Tristar Medical Group situated in Mildura.[54] Seemingly, those records run over the period from 29 April 2015 to 15 June 2016.
[54]See exhibit “B”, at pages 10 – 16 DCB
74 It was put to the plaintiff that he attended that clinic on about ten occasions during that period, to which he agreed. He further agreed that he went there for such conditions of gout and to have B12 injections.
75 I again refer to the following evidence.
Q: “And again, Mr Bath, the records of Tristar Medical Group between 29 April 2015 and 15 June 2016 showed no complaints about right hand pain?---
A:Okay, they were my family doctors and I discussed with them about my hand initially and they had said that they had not made, in Mr Bath’s words, my hand regular. He calls it regular. So, my hand could never become regular, so you would – I would have to keep on taking medicine to make it work for me.
Q: So, you say you did complain to Tristar?---
A:They said they could do nothing to help me and I had to keep taking Osteo to help myself.”[55]
[55]T12, L29 – T13, L9
76 The plaintiff accepted that he returned to work with the defendant in about September 2009. The plaintiff was also queried about his assertion that he went back to light duties after returning to work with the defendant, whereas in his affidavit he deposes that he worked at the Reservoir factory performing “… all my old Process Worker duties until Transglobal shut the factory … .”[56] When such apparent discrepancy was put to him, the plaintiff gave evidence:
“They initially pressurised me, his words, to do the previous job, but when they saw that I was incapable, and my English is not at all capable of standing up to the test of it, I was given light duties, and I was trained for that.”[57]
[56]See exhibit 1, at paragraph [20], page 19 PCB
[57]T13, L24-29
77 Later, in response to the Court, the following evidence was given:
“HIS HONOUR:
Q: Well, perhaps just – Mr Bath, you have said in your affidavit that you went back to work after your injury to light duties?---
A: Yes.
Q: Did you go back on light duties?---
A: I went back on light duties.
Q:And were those duties different to the duties you had before your injury?---
A: Yes, I never went back to the place where my hand got caught.
Q:What sort of duties were you now given that you weren’t doing before your injury?---
A:I was given supervisor’s duties, training on a machine, and they said that, even though your English isn’t very good, you can use your brain to perform this task.
Q:What does it mean when you say, as you do in paragraph 20 of your affidavit, ‘I kept working at the Reservoir factory performing all my old process worker duties until the factory shut in 2011’?---
A:I was never asked to and I never returned to the pit where my hand caught in the grinder. I performed new duties which I did just as well as I did what I did before.”[58]
[58]T16, L3-21
78 The plaintiff confirmed that after the closure of the defendant, he obtained a job as a forklift driver at Somerville Retail Services, where he worked for about two years. The plaintiff commented that when working for that company he had lots of problems “because I couldn’t lift boxes and everything after that, and I didn’t have a VISA clearance to work.”[59]
[59]T16, L29-30
79 The plaintiff confirmed that his present earnings vary between $800 to $1,100 net per week.
80 The plaintiff was then shown a Driver Health Questionnaire which needs to be completed for those wishing to drive commercial passenger vehicles like taxis.[60]
[60]See exhibit “B”, at pages 139-142 DCB
81 That document is headed “Driver Health Questionnaire” and consists of four pages. The second and third pages of such document consist of a number of questions to be completed by the applicant. The plaintiff gave evidence that it was his initials on page 3 of the document under the heading “Signature of applicant” and that it was his handwriting where it says “Sukharj Singh Bath”. In particular, the following evidence was given:
Q: “And you filled out this document on 13 September 2016?---
A: Yes.
Q:So did you complete this form because you were intending on becoming a taxi driver?---
A: But I couldn’t become one.”
HIS HONOUR:
Q: “But why did you fill out the form?---
A: I was trying to find work.
Q:Yes, and when you say ‘you filled out the form’, did you actually put the ticks in or did someone read the form to you, or what happened?---
A: Somebody filled it in.
Q: Who was that?---
A:I was hoping to get a taxi driver license (sic), but someone else filled it in.
Q: Yes, who filled it in, who?---
A: I cannot recall.
Q: Were you there when it was filled in?---
A: Yes.
Q:And the person who filled it in, did they say what the questions were to you, and did you give answers?---
A:He told me that this is just a mere formality. All I had to do was sign it and my licence would – the licence would be given.
Q: I’ll ask you again, who assisted you?---
A:At the medical centre where I went there was a person there and I said I needed this form filled in, and they assisted me in filling it in.
Q:Yes, but when they assisted you in filling it in did they ask any questions, like here – I see one of the questions here is, did you have high blood pressure; did someone ask whether you had high blood pressure and did you say yes or no?---
A: No. Nobody asked me any questions.”
MS SPITALERI:
Q: “So, who – who ticked the boxes then?---
A: They did it because this is not my handwriting.
Q: But didn’t you just - - -?---
A: The signing is mine and the initials are mine.
Q: But the ticks aren’t yours?---
A: No.”[61]
[61]T17, L27 – T18, L26
82 The plaintiff was taken to the records of the Hanson Medical Centre,[62] and in particular to an entry made on 13 September 2016, where there is a record of a surgery consultation was Dr Ehsan Nikrad, and the reason for the examination was a “taxi driver examination”. The following evidence then ensued:
[62]See exhibit “B”, at pages 157-164 DCB
Q: “So, he did a taxi driver examination?---
A:There was another person with me because I couldn’t speak English.
Q: That’s the person who helped you fill out the form?---
A:He drove a taxi, he said this is just a mere formality, help you with the forms.
Q:Because the driver health questionnaire that you filled out – or, sorry, I retract that. The driver questionnaire that you signed and dated is 13 September 2016, that’s p.3?---
A: The signature is mine. The initial is mine, but the rest isn’t.
Q: And the date, is that yours?---
A: I cannot recall whether I put it – the signature is mine.
Q:And you see just underneath your signature there’s a signature of a Registered Medical Practitioner conducting the examination?---
A: Because I went to him for the formalities.
Q:So, what I’m suggesting to you, Mr Bath, is that the Hanson Medical Centre notes show that you saw a Dr Nikrad on 13 September 2016 for a taxi driver examination?---
A: Yes, I did go there for a taxi driver licence.
Q:Yes. And this driver health questionnaire which you’ve got in front of you is – is dated the same date as that examination with Dr Nikrad?---
A: Yes.
Q:And what I’m suggesting to you is that Dr Nikrad signed this questionnaire, or some doctor did at least?---
A: Some doctor has signed it.
Q:And that that doctor was the one who asked you all the – asked you questions about your health?---
A:The only question the doctor did ask me is whether my health is all right and I said, ‘No, I have no problems.’
Q:So, you told the doctor you had no problems?---
A:He asked me questions whether my BP was high, whether I had problems with my sugar or whether I had dizziness.
Q:Yes, so that - - -?---
A:And I said ‘no problems as such.’
Q:So, he asked you about high blood pressure and you told him no?---
A:I told him that I didn’t have high – and he checked.”
HIS HONOUR:
Q:“Did you tell him – you know you’re – you’re applying for a taxi licence, that was the situation, was it?---
A:Yes, I told him.
Q:And when you got examined by anyone when you were making this application did you ever say anything’s wrong with your right hand?---
A:If I told him so then I would never get a licence.”
MS SPITALERI:
Q:So, you didn’t tell him?”
HIS HONOUR:
Q:“Just repeat that. The question was, ‘you didn’t tell him that, is that correct?’.”
MS SPITALERI:
Q:“You didn’t tell him about your own hand?---
A:No, I didn’t tell.
Q:And I suggest that if your right hand was as big a problem as you say it is, that you would have told him?---
A:Wherever before I had mentioned that I had a problem with my right hand, the door shut on me, nothing was offered to me, so I had already known that if I mentioned that problem, nothing would be possible for me.”[63]
[63]T20, L8 – T21, L30
83 It is to be noted that in that part of the Driver Health Questionnaire to be completed by a registered medical practitioner, it involves questions about the “upper limbs”. The “appearance” and “joint movements” were described as “normal” in the medical questionnaire.
84 Under cross-examination, the plaintiff denied that he had ever seen a plastic surgeon to see whether there was anything more that could be done in relation to the appearance of his hand. When again queried about the type of work he was performing with the defendant after the injury, the plaintiff again asserted he was doing essentially a supervisor’s job and there were people under him who did most of the process work, in particular, the following evidence was given:
Q:“Now, Mr Bath, no doctor that’s been treating you has told you that you’re limited in the types of work that you can do because of your right hand?---
A:Because I was aware myself that I couldn’t do heavy lifting, I just went for driving jobs which didn’t involve it.
Q:My question to you, Mr Bath, is that no doctor has told you that you are limited in the work that you can do because of your right hand?---
A:Every doctor has told me that if you have a problem with your hand, you need to change or vary the job that you’re doing.”[64]
[64]T23, L27 – T24, L5
85 The plaintiff confirmed that he did feel depressed about not being able to do his normal activities at the Langar ceremony. The plaintiff accepted that the first time he consulted a doctor about his “mood” was in August 2016, when he attended the Hanson Medical Centre. In particular, the plaintiff was taken to an entry on 9 August 2016, when he consulted Dr Atapattu Millawana, and the reason for the “contact” was “stress” and “insomnia”. The entry records that the plaintiff had given a deposit to buy a truck, but the seller was going to give him a truck with lots of faults, although he hadn’t signed a contract and requested his deposit back, the other person was refusing. The doctor recommended that he contact a solicitor. He was prescribed Stilnox tablets.
86 Furthermore, the plaintiff was referred to the Tristar Medical Centre records and, in particular, to document headed “GP MENTAL HEALTH CARE PLAN”,[65] wherein Dr Ishrad Sulthana of the Hanson Medical Centre referred the plaintiff to a psychologist. In that document, the general practitioner prescribed symptoms of “insomnia, decreased concentration, anhedonia, not socialising much” and the cause of such stress was the failure of the vendor of the truck to return the deposit.[66] In particular, the following evidence was given:
[65]See exhibit “B”, at pages 144-148 DCB
[66]See exhibit “B”, at pages 144 DCB
Q:“And the referral from your GP to the psychologist was in relation to stress concerning the money you spent on the truck, wasn’t it?---
A:I was under double stress, first with my hand, then I’d lost my money about the truck, so it was - - -”
HIS HONOUR:
Q:“Why didn’t you tell the psychologist that, why didn’t you tell the doctor when he sent you off to the psychologist, that your hand was a source of stress?---
A:My wife accompanied me to (sic) and I used to talk for an hour. And they all knew about my – about everything. They said that this was a different matter.”[67]
[67]T25, L25 – T26, L4
87 Under cross-examination, the plaintiff confirmed he could not play cricket with his children anymore and that his gardening is limited to watering on an infrequent basis. The plaintiff also confirmed that he does help his wife with the cooking “a bit”, but he cannot do the real chopping. Furthermore, he confirmed that he was able to drive a car, but has had to change the way he drives by using his right palm to assist him when driving.
88 The plaintiff was then shown video film taken on 12 October 2017 and 20 November 2017, which lasted, in total, for about thirty-five minutes. The surveillance video was tendered.[68] In general, the video depicted the plaintiff using his right hand to open the door of his motor vehicle – although seemingly using only a couple of fingers of his right hand to pursue such task, thereafter driving his vehicle, seemingly taking his children to school. Although not completely clear, it would appear that his right hand was on the steering wheel for some of that time.
[68]See exhibit “C”
89 Later, the plaintiff seemingly made a reasonably long mobile telephone call holding the telephone to his ear with his right hand. It would appear that the phone was held in such a way that his middle and ring fingers did not flex around the phone but, rather, ran in a longitudinal way, with his little finger and perhaps his index finger wrapped around the phone. Later on he shook hands with an elderly gentleman. During some of the footage, both hands were kept in a jacket which the plaintiff was wearing. In particular, one sequence of the film showed the plaintiff seemingly using both hands, either placing on, or adjusting a cover over the steering wheel.
90 On 20 November, the video revealed the plaintiff opening the door of his vehicle with one finger of his right hand and later showed him walking, seemingly at his place of employment – a transport company – holding some objects in his left hand. At one stage he was standing outside a prime mover with the passenger door opened, seemingly talking to someone in the prime mover, with both hands unseen inside the cabin. At one stage he was gesticulating with his right hand. Later, in the yard of, seemingly, his employer, he was reversing a prime mover and truck and having his right hand on the wheel for much of the time, although it appeared to me that although the fingers were flexed to some degree around the wheel, they were not completely flexed as far as possible. Furthermore, when reversing and looking over his right shoulder, the left arm did most of the steering, whereas, for a short period, he was looking over his left shoulder, presumably through the rear window of the cabin and the reversing was done for a period with his right hand.
91 During the course of showing the video, the plaintiff was recalled to answer a variety of questions. I refer to the following evidence:
“MS SPITALERI:
Q: That was you in the film, Mr Bath?---
A: (Through interpreter) Yes.”
HIS HONOUR:
Q: “That’s you with the yellow turban, was it?---
A: (direct) Yes. (Through interpreter) Yes.”
MS SPITALERI:
Q: “And the film showed you driving some kids to school?---
A: Yes.
Q:And when you were driving your kids to school there was – it showed you gripping the steering wheel with your right hand while you were driving, didn’t it?---
A:I didn’t hold the steering wheel at times. I don’t – I don’t grip it hardly. It is me in the movie, you can see it’s my hands and I’m using it, I’m practising.
Q: The film showed you putting on a steering wheel cover, didn’t it?---
A: The cover is already on, I’m going like this, to check it.
Q:And while you’re doing that, you’re seen gripping the steering wheel with both your left and right hand?---
A:Yes, many times when I have feeling in both hands I grip the steering wheel to practise.
Q:And at times you’re gripping the steering wheel very forcefully with your right hand, aren’t you?---
A:When my joints are very painful, I try to flex them by trying to hold or take – anybody can make a movie like that.
Q:Is it only when you’re driving a car that you grip the steering wheel with your right hand?---
A:I hold it mainly in my left but if I need to use the right, I do in a – in this as is showing to you like that.
Q:No, that wasn’t my question, I said, is it only when you’re driving a car that you grip the steering wheel with your right hand?---
A: I use both.
Q:So when you’re driving a truck do you only grip the steering wheel with your left hand?---
A: Mainly I use my left, but upon need I use the right.
Q: And how do you use the right when you’re driving a car?---
A: Like this.
Q:So you grip the steering wheel; so you just lightly hold it, you say?---
A:I do not hold it fully full grip, I hold on with my palm to it, as you can see there.
Q: And in the video you’re seen talking on your mobile phone?---
A: Yes, I do.
Q: Were you using your right hand?---
A: (Direct) Yes.
Q: And you’ve got no problems doing that?---
A:It’s like this, as I’m – it’s like my fingers are bent like that (demonstrating).
Q: And we saw you shaking someone’s hand in the video?---
A: It’s my neighbour.
Q: It’s your neighbour?---
A: And they’re older than me and I’m obliged to.”[69]
[69]T29, L16 – T31, L1
92 Later, after showing the video taken on 25 November 2017, the following evidence was given:
“MS SPITALERI:
Q: Mr Bath, that film taken on 20 November 2017 that was you?---
A: Yes.
Q:And that film showed you approaching a truck and talking to someone in the truck?---
A:(Direct) A road train truck, B-double. (Through interpreter) It’s my manager Mr Tom, he’s giving me a job to perform.
Q:And while you were talking to him you were motioning with your hands?---
A: I didn’t have a handshake with him.
Q: No, no, motioning with your hands, moving your hand?---
A: I don’t know.
Q:Before you saw the film of 20 ember (sic) 2017 you said that when you drive a truck you sometimes lightly touch the steering wheel with your right hand?---
A: I told you I do use my right hand.
Q:No, my question was, before you saw the film I put to you that – before you saw the film I asked you about how you go about driving a truck, and whether you use your right hand. And you said that you – when you drive a truck you use your left hand that you put – you sometimes use your right hand and you lightly, lightly put it on the steering wheel?---
A:As you can see in the movie too and before as I’ve said, I use mainly my left hand but I – my manager is standing there, I’m obliged to use my right too, otherwise he would just kick me out.
Q:When you were driving, Mr Bath, your manager wasn’t standing there wasn’t he?---
A:He’s – at the time of reversing and at the time of moving the truck out of the parking, my manager is standing there right in front of me watching.
Q:When you were driving the truck on the road, your manager wasn’t standing on the road, was he?---
A:When the conditions are such I have never said that I do not use my hand. When I need to I do use and I do touch with my right hand.
Q:Mr Bath, in your affidavit at paragraph 11 – plaintiff’s court book 24, Your Honour.”
HIS HONOUR:
A: “Yes.”
MS SPITALERI:
Q:“You say this, ‘I’m still able to drive but because the fingers of my right hand are stiff I cannot grip the steering wheel with them’?---And then you say, ‘Instead I use my left hand to drive and tend to keep my right hand in my lap. If I need to use my right hand to turn the wheel or steel, I use the palm of my hand only’?---
A: I use the steering like this (demonstrating) like he’s showing you.
Q:So in your affidavit that’s what you said, I asked you about it before you gave evidence and you said that was correct?---
A: Yes, I use my palm like this (demonstrating).
Q:And what the surveillance shows is you gripping the steering wheel with your right hand?---
A:You can – you can rewind it back it and look, I’m holding it like this (demonstrating) – flat.”[70]
[70]T31, L31 – T33, L19
The re-examination of the Plaintiff
93 Under re-examination, the plaintiff confirmed that part of the video film showed him reversing an A-Double truck (which is very long) at his depot situated in Toll Road, Altona. In particular, the plaintiff stated he would reverse the truck about four times each working day. In such circumstances, the following evidence was given:
Q:“Is there any difference in – well, you’ve been asked about when you use your hands driving and so forth, is there any difference in the way you use your right hand when you’re doing work, reversing trucks around the yard, necessarily as opposed to when you’re out driving on the highway?---
A:… (Direct) Too much difference. (Through Interpreter) There’s too much difference.
Q:Have you ever said that you – have you ever said to anyone, to doctors or to anyone, that you can’t drive?---
A: (Through Interpreter) Then how will I operate my life?
Q:What’s your understanding of your ability to do heavy lifting, for example, with your hands?---
A:Long time that I was free this is the only job that came that I could do, and I tried to get - - -
Q:Sorry, so perhaps I’ll just repeat my question, I’ll go about it this way. When you were working with – I’ll just get the name of the defendant, Transglobal, before your hand injury, okay – do you recall my learned friend asked you some questions about normal duties and light duties and so forth; do you recall those questions? Could you tell His Honour, please, before you had the hand injury what were the heaviest parts, manually heavy, if there were any, of your job?---
A:I used to cut the belts, I used to do plastic cutting. I used to lift the heavy plastic rolls, cut them up and put them up there. I used to work all with my hands doing it.
Q: So, after the injury you went back to work?---
A: Yes.
Q:What particular jobs that were jobs you used to do, let’s say, every day, were you not doing when you went back to work?---
A:I could not cut the plastic. I cannot cut the roll. The – I used to cut the belt and I can’t do that.
Q:Were those tasks that you had to do every day, or were they just something you might have done once a week?---
A:It was my duty to cut those bundles of plastic, the belt, it was my daily task.
Q:Right. Now, just to get it – I’ll withdraw that. When you went back and you settled into – eventually you settled into some work with Transglobal before they finished, before the company shut down, okay, that’s the period I’m asking you about, did you do those cutting rolls, cutting plastic and reloading rolls that you’ve told His Honour about, or did you not do those tasks?---
A: Not at all.
Q: Did you actually try to do them at any stage?---
A:I had to use a knife always, which was in my pocket to cut the roll with. I could not hold that knife properly to cut with.
Q:What sort of force did you need to apply with the knife to cut the types of things you were cutting before the injury?---
A:You had to use the right hand to cut with and the right hand is – I’m unable to cut with.
Q:I understand that. The question is, sorry, before he had the injury to the right hand what sort – can he describe the type of force that he needed to use with the right hand when he - - -?---
A:It was too hard, it was heavy force you had to use.
Q:Now, coming – are you able to describe to His Honour, after the injury and you’ve gone back to work with Transglobal the – the percentage of your day, for example, that you would be doing, just like supervising versus the percentage – what part of your day were you doing actually some sort of work yourself in production?---
A:I was told that I wasn’t to return to my former duties, I was trained properly for three months to handle the machines and supervise that.
Q:So, is handling the machine something that you did before the injury? Are we talking about the same machines before injury and after injury?---
A:I used to work – I used to work at the front of the belt, not behind.
Q:When is he talking about, the front of the belt, was that before the injury or after the injury?---
A:Before the injury I was on the back side of the belt. After the injury I was at the front of the belt.”[71]
[71]T35, L1 – T37, L9
94 The plaintiff was required by his counsel to put his hands up and flex as best he can with both hands. Following such demonstration there were a number of questions as to how far the fingers of the right hand could be flexed to make a fist similar to that in the undamaged left hand. Ultimately, the following evidence was given.
Q:“All right. Thank you. Now, we’ve seen you in the film and you’ve got your – at times you’ve got your right hand on the steering wheel; do you agree with a that?---
A: (Through Interpreter) Yes.
Q:And is that something that you’re able to do? In other words, it’s – you’re able to bend your fingers around enough to put them on a steering wheel as we’ve seen in the film?---
A: (Direct) Yeah. Here.
Q:And when you’re using your right hand to help you with your driving, let’s say in the film, are you able to tell His Honour, if you can, is – are you gripping – which part of your hand are you really – of your right hand , are you using most, or where is any force or strength coming from?---
A: (Through Interpreter) Hold the steering like this.”
HIS HONOUR:
Q: “Yes, I understand that, all right?---
A: This - this is the part that goes into the steering the most.
Q:Well, how can we describe that? He places like the part of his hand over the steering wheel, and he alleges that he can’t wrap his fingers round the steering wheel, they lean over it.”
MR FITZPATRICK:
Q:“I think he said - well, I’m not sure he’s alleging that, Your Honour. Can you - can I just clarify that?---”
HIS HONOUR:
A: “Yes.”
MR FITZPRATRICK:
Q:“You’ve shown His Honour that you can bend your fingers to some extent, Mr Bath, as you’re doing now. So, when you put your hand on the steering wheel, as His Honour’s asking, is it a case of you just putting your palm there and your hand just – and your fingers just sort of go to the front, or are - - -”
MS SPITALERI:
Q: “I object to this - this leading.”
HIS HONOUR:
Q: “Well, yes, I think it is. Look, I think - - -”
MS SPITALERI:
Q:“I - he’s given an answer to that. He said he can bend his fingers enough to put on the steering wheel, that was his answer.”
MR FITZPATRICK:
Q: “I’m happy with that.”[72]
[72]T41, L29 – T43, L3
95 The plaintiff gave evidence that after his hand therapy ceased in about February 2010, he was given some springs by the hand therapist to perform some type of exercises at home, and told to have massages and keep his hand warm.
96 In particular, the plaintiff gave evidence that when the hand is warm the pain is “much less” and when it is cold then “I have really bad problems”.[73]
[73]T43, L19-20
97 The plaintiff also said that when his fingers get cold they get “really hard” and the tips of his fingers have no sensation in them – by that he meant the four fingers of his right hand.[74]
[74]See generally T43, L23 – T44, L4
98 The plaintiff also gave evidence that when he ceased attending the St Vincent’s Outpatient Department in April 2010, they did not say anything about attending any other hand doctors, or anything like that. When queried as to whether or not they suggested any other form of treatment to help the hand, the plaintiff answered:
A:“They said that this hand we’ve done what we could for it, done the surgery, there’s no more treatment for it, but if you have pain coming on then you could take medicine for it to help you relieve it.
Q:Now, in the years that followed April 2010 to we’re now in 2017, at any time - well, did you believe that a GP, for example, would be able to treat the hand so as to give you any more particular relief than you had already?---
A:Whichever GP I have spoken to in that period of time they’ve all told me the same, it’s a lengthy process and there’s no more surgery to be done, the surgery is done, and only thing I can do is take medicine to make the pain less.
Q: So did you accept that or did you keep asking about it?---
A:It was beyond my scope to persist in getting my hand better because my English always held me back, and I couldn’t always pursue this with doctors. So accepted it and decided to move on in life.”[75]
[75]T44, L20 – T45, L7
99 The plaintiff confirmed that after he had been surgically treated and discharged from treatment in 2010 he had no need, at that time, to see anyone about his hand’s condition.
100 Furthermore, the plaintiff was referred to the taxi questionnaire completed in September 2016 and confirmed that at that time he did not have any work. In particular, he was asked whether in 2016 was he aware of any problem about driving, to which he answered no, and believed there was no medical reason that he could not drive a taxi.
101 The plaintiff gave evidence about the examination undertaken by the doctor at that time. In particular, he gave evidence that the doctor checked his blood pressure, inquired about his sugar, and checked his eyes. In particular, the following evidence was given:
Q:“He enquired about your sugar, did he do any actual blood tests?---
A: He just asked me questions.
Q: All right?---
A: He asked me if there was any serious problem.
Q: All right, and what did you tell him?---
A: I told him I was fit.”[76]
[76]T46, L8-11
102 The plaintiff also gave further evidence about his employment as a forklift driver at Somerville and, in particular, the following evidence was given:
Q: “And how did you manage that with your right hand?---
A:I was always - there’s a thing on top and I used to always use that to turn around.
Q:Are you saying to His Honour that you never used your right hand at all?---
A:I used to use it or it is used when only you’re putting the lift up and down.
Q:Did the job at Somerville require you to pick up any heavy things with your hands or was it just forklift driving?---
A:When the need arose and I complained that I couldn’t do it they used to get upset with me. Sometimes.
Q: How did you manage?---
A: Then I used to take a forklift which only did loading and unloading.
Q:Now, since this right hand injury what’s the main type of job that you’ve been trying to do?---
A: Driving.
Q:Do you tell His Honour that you’ve got a restricted ability to do manual jobs like, working in a factory, or a labouring type job, or not?---
A:I’ve taken a firm decision that I cannot work in a factory because it always entails some form of heaving lifting.”[77]
[77]T46, L19 – T47, L6
103 At the end of the re-examination, the plaintiff was brought forward in front of the bench, and in the company of counsel, I inspected the right hand and asked the plaintiff to perform various movements, sometimes in comparison with the left hand.
104 In particular, I asked the plaintiff to make fists with both hands. To my observation, the plaintiff had the capacity to roll his right fingers in to some degree but could not make a complete fist, as compared with the fist made by his left hand. It was clearly observable that the terminal phalanx of the right ring finger was shortened and, indeed, also a degree of angulation of the right middle finger. The end of the right ring finger had little nail and was noticeable. Other than the donor site, there was little clear scarring on any of the fingers.
The evidence relied on by the Defendant
105 Those acting for the defendant rely on a report from the hand surgeon, Mr Damian Ireland, who examined the plaintiff on 26 July 2017.[78] An issue was raised by the parties as to whether or not an Indian interpreter was present at such examination. I was informed by counsel for the plaintiff that on his instructions, an interpreter was not present during such examination, whereas counsel for the defendant informed me that arrangements had been made for an interpreter to be present. In this respect, a document headed “Confirmation Interpreter Attends on Wednesday 26 July 2017” was tendered.[79]
[78]See report of same date – exhibit “A” at pages 5-9 DCB
[79]See exhibit “D”
106 In the circumstances, I permitted counsel for the plaintiff to examine his client in relation to such issues. The plaintiff confirmed that he did attend and see Mr Ireland on 26 July 2017. In particular, the following evidence was given:
Q:“Did you have an interpreter with you when that examination commenced?---
A: The interpreter was late, there wasn’t one there.
HIS HONOUR:
Q:Did you just say late? When did the interpreter arrive? Were you still being examined or had that finished?---
A: When it had finished and I was coming outside of the room.
Q: Did the interpreter ever meet Mr Ireland?---
A: I came outside. I do not know what happened after that.
Q:Yes, when you say you came out of the room, you came out of Mr Ireland’s examination room, did you?---
A: Yes, I came out.
Q:Is that when you saw the interpreter for the first time, on that day?---
A:The interpreter quizzed me and asked me, ‘Sukhraj Singh, has your appointment happened?’
Q:Yes, but is that the first time - when you walked out of the room and you saw the interpreter, was that the first time you saw the interpreter on that day?---
A: Yes, because he asked.
Q:Yes, and then once you saw the interpreter did you go back and talk to Mr Ireland at all after that?---
A: No.”[80]
[80]T51, L5-25
107 It is also to be noted that in the first paragraph of his report, Mr Ireland records “Mr Bath presented alone.”[81] In his report, Mr Ireland also records that he obtained a history from the plaintiff of injury, together with a history of treatment of the injury. At the time of the examination he recorded that the plaintiff complained that he is not able to make a fist with his right hand because “it’s tight”. He has also recorded that the plaintiff stated there was no pain in the right hand, although he described tenderness when the dorsal aspect of the proximal interphalangeal joint knuckles are knocked. Mr Ireland also records that the plaintiff stated that the middle finger is “bent” and describes diminished sensation in the ring finger.
[81]See exhibit “A”, at page 5 DCB
108 The plaintiff confirmed that he does not undergo any treatment currently for the right hand symptoms and that there was no prior history of injury to the right hand. Mr Ireland obtained a history that the plaintiff attended to all normal activities of daily living, but only engages in minimal household chores (for cultural reasons) and does some gardening. Furthermore, Mr Ireland recorded that the plaintiff drives his automatic motor car without difficulty.
109 On examination, Mr Ireland recorded:
·There was normal work stain and work callus affecting both hands equally.
·There was no wasting of the intrinsic muscles and there was not trophic skin changes at the finger pulps, including the shortened ring finger.
[110]See exhibit “A”, at page 8 DCB
(ii)That notwithstanding that the plaintiff asserted that the fingers in his right hand hurt all the time, the clinical records from both the Hanson Medical Group and the Tristar Medical Group indicate that according to those records he has not complained to any doctor about right hand pain;
Reference was made to the Court of Appeal decision of Philippiadis v Transport Accident Commission,[111] wherein the Court of Appeal (consisting of Redlich and Kyrou JJA and Ginnane AJA) made reference to the relevance of clinical notes. In particular I refer to paragraphs [104] to [107], where the Court of Appeal states:
[111][2016] VSCA 1
“Dr Lewis had been treating the applicant continuously since at least 1999 and made notes of the applicant’s attendances upon him. The applicant did not contend that Dr Lewis’s clinical notes were inaccurate. Rather, his counsel contended that the notes were truncated and incomplete and did not necessarily reflect the applicant’s medical condition at the time of each attendance. Counsel submitted that the fact that the notes of a particular attendance did not record any complaint by the applicant about neck pain did not enable an inference to be drawn either that the applicant did not suffer from neck pain at the time of the attendance or that he did not complain about neck pain at that attendance.
We accept that courts need to exercise care in relying on the records of medical practitioners. Such records usually contain a selective summary in the doctor’s own words of what the patient tells the doctor and cannot be treated as a verbatim transcript of the entire medical attendance.[112] The records may be inaccurate through miscommunication or misleading through omission. However, notwithstanding their limitations, very often clinical notes constitute highly probative evidence because they are independent and contemporaneous and deal with matters within the author’s area of expertise.
[112]Reference was made to Woolworths v Warfe [2013] VSCA 22 at paragraph [112]
Ordinarily, a patient who visits his or her longstanding general practitioner is likely to inform the general practitioner of the health issues that are then of concern to the patient. Also, a general practitioner who makes notes of each attendance would be expected to record the main health complaints made by the patient and the practitioner’s observations and actions taken in relation to such complaints. It may be accepted that, in respect of some attendances, there may be departures from what would ordinarily be expected. However, where an injury is having serious adverse health consequences for a patient and that patient visits his or her general practitioner on a regular basis, it would be very unusual for the patient not to mention those consequences and for the practitioner’s clinical notes not to refer to them over a lengthy continuous period of time.
In the present case, the applicant did not give evidence that Dr Lewis’s clinical notes did not accurately reflect the condition of his neck at the time of each consultation. In particular, he did not give evidence that, for any specific consultation, the explanation for the absence of a reference to his neck condition in Dr Lewis’s clinical notes was that he did not mention to Dr Lewis that he was experiencing neck pain when he in fact was or that he mentioned neck pain but Dr Lewis failed to record this. On the contrary, in his oral evidence, the applicant repeatedly stated that he would accept the contents of Dr Lewis’s clinical notes. It follows that the submissions of his counsel that the absence of a record of neck pain in a clinical note could be attributed to the applicant’s stoicism or omission by Dr Lewis are not based on any evidence but are speculative.”
(emphasis added).
(iii)Reference was made to the taxi driver questionnaire and, in particular, the examination by the doctor on 13 September 2016, wherein the plaintiff asserts that “no I have no serious problems”;
(iv)The surveillance shown of the plaintiff revealed, so it was submitted, “a very different story” in relation to any pain that the plaintiff well may be experiencing in the right hand, as such film revealed the plaintiff gripping the steering wheel of the car with his right hand when driving children to school and later “forcefully putting on” a steering-wheel cover. Counsel also referred to the film showing the plaintiff shaking hands with a neighbour, and also gesticulating with his hands when talking to his boss;
(b)Counsel for the defendant also submitted that the credibility of the plaintiff was affected in relation to his evidence in his affidavit that he was supposed to go back on light duties, but was given his full duties, and, then, in his viva voce evidence before the Court, he was given light duties, which he described;
(c)Counsel for the defendant also submitted that the plaintiff evaded answering questions which he “thought might be harmful to his case” and gave the example of his reticence to answer the question about whether he has ever attempted to see a plastic surgeon to improve the appearance of his hand over the years since the injury. Initially, he would not give a yes or no answer, with continuing emphasis by him that the doctors had informed him that nothing more could be done for the hand.
127 Although counsel for the plaintiff did not make an express submission in relation to the credibility of the plaintiff, the nature of his submissions were that there is no good reason I should not accept that the plaintiff was giving an honest account of both his symptoms, restrictions and embarrassment pertaining to his right hand.
128 As has been made plain in many serious injury trials, the credit of a plaintiff will often be critically important.[113] Furthermore, as stated by Brooking JA in Mobilio v Balliotis:[114]
“Further, where, as is often the case when personal injuries are in question, the opinions of medical experts are to a considerable extent dependent upon the accuracy of the claimant as historian, the advantage which the primary judge has in assessing the claimant's credibility assumes an importance that is, so to speak, both direct and indirect, when the judge comes to evaluate the lay and expert evidence that has been given.”
[113]See Haidar v Transport Accident Commission [2016] VSCA 182 at paragraph [30]; Palmer Tube Mills (Aust) Pty Ltd v Semi Semi; Transport Accident Commission v Streicher [1998] 4 VR 439 at 448
[114][1998] 3 VR 833 at 836
129 Again, I make reference to Haden Engineering Pty Ltd v McKinnon,[115] wherein Maxwell P noted that credit will often be particularly significant when assessing evidence of what the plaintiff has said about his or her pain and suffering consequences in court and to doctors.
[115]Op cit
130 I consider that it is important to bear several matters in mind when assessing the credit of the plaintiff:
(a)The plaintiff has suffered a demonstrable traumatic injury to his right hand when the four fingers of his right hand were crushed at work on 20 June 2009. In particular, he has suffered amputation of his right ring finger to the extent of about 1.5 centimetres, and a crush injury to his right middle finger, causing such finger to be bent and crooked.
After the surgery to his right hand, he was referred for right-hand therapy for about five months at Innovative Hand Therapy and Scar Management in Coburg. Also, after being off work for about two or three months, he was told by the defendant he had to return to work or would lose his job. Also, the evidence establishes that he attended the Quality and Risk Unit at St Vincent’s Hospital, receiving hand therapy until his last review on 7 April 2010, where it was noted he had shortening of his ring finger, but “his functional status was good”.
I refer to the undated report of Ms Fiona Moate from Innovative Hand Therapy and Scar Management.[116] Unfortunately, because it is undated, it is unclear precisely when such report was written, although consistent with the evidence of the plaintiff, he underwent therapy at such clinic for about five months. Furthermore, because the report is handwritten, it is not completely clear what is said, although it would appear Ms Moate reported:
[116]See exhibit 2, at pages 38-39 PCB
·The plaintiff still was having swelling in his right hand and complaining of pain in the hand, especially at the – what I believe to be, the joints of the fingers.
·Ms Moate also notes that the plaintiff was not taking any medication and she makes a suggestion to St Vincent’s Hospital that medication be supplied.
·She noted trophic changes were evident and she details, further, various recordings to each of the fingers.
·Seemingly (although not completely clear), she was testing the “grip” of each hand and recorded that the grip on the left was “56” and, on the right, “34”.
·She notes that the plaintiff had returned to work performing light duties and performing light activities of daily living.
·She noted that the plaintiff experienced some loss of sensation seemingly to the tip of one of his fingers. It is not clear precisely the nature of such loss of sensation.
·What it means when the St Vincent’s Hospital’s “Quality and Risk Unit” stated that when outpatient treatment ceased on 7 April 2010, his “functional status was good”. It is not clear by that whether he had ongoing pain. In this respect, it is noted by that Unit that “on review” the plaintiff had “stiffness in his mid and ring finger and reduced sensitivity of his ring finger”. As I say, it is not clear from those records whether there was any ongoing claimed symptoms;
(b)It is clear from the report of Ms Moate that, consistent with the plaintiff’s evidence, he returned to work with the defendant two to three months after the injury and, according to her, when she was treating him he was performing light duties. Again, according to her, he was experiencing symptoms in various fingers of his right hand;
The plaintiff clearly swears in his first affidavit that he was told by the defendant he could do:
“… light duties but when I turned up for work they put me back on exactly the same process worker duties I was doing before my accident. This included working in the granulated machine. By then, I was very frightened of the machine and I refused to go down the ladder into the pit.”[117]
[117]See exhibit 1, at paragraph [18], page 19 PCB
Later, again in the first affidavit, the plaintiff deposes:
“I kept working at the Reservoir factory performing all my old process worker duties until Transglobal shut the factory in 2011”.[118]
[118]See exhibit 1, at paragraph [20], page 19 PCB
Against that, the plaintiff gave evidence in the trial that, during cross-examination, he was initially pressurised to do the previous job, but when the defendant saw he was “incapable”, he was given light duties and he was trained for that;[119]
[119]T13, L22-29
Later, in response to questioning by the Court[120] and, later, during re-examination, the plaintiff explained that prior to his injury, he used to use a knife to cut the plastic, lift the heavy plastic rolls, cut them up and also enter the pit, whereas after his injury, although he was still working on the line, he could not cut the plastic or the roll, and would not go down to the pit. In particular, he described the difficulties of using the knife in his right hand to cut the plastic. As he explained, whereas before the injury he was on “the back side of the belt”, after the injury, he was “at the front of the belt”;[121]
[120]T16, L3-21
[121]See, generally, T35, L1 – T37, L9
Although the words in the affidavit are clumsily pleaded, I tend to the view that the plaintiff was essentially trying to describe a situation wherein he returned to the same type of duties with the defendant, but after a short time performed the less demanding aspects of those duties – and in particular, not using a knife to cut the plastic or put pressure on his right hand;
(c)The plaintiff freely admits that in relation to the taxi questionnaire, he did not tell his doctor about the state of his right hand – although it must be accepted that any observation of the right hand would suggest there was a partial amputation of the ring finger and distortion of the middle finger – because he was seeking to get a job and, as he stated:
“Where before I had mentioned that I had a problem with my right hand, the door shut on me, nothing was offered to me, so I had already known that if I mentioned the problem nothing would be possible for me.”[122]
It must be borne in mind that as submitted by counsel for the plaintiff, the plaintiff has never denied that he is incapable of driving. Furthermore, at the time of the taxi questionnaire, the plaintiff – who is married with two children – had been out of work and he was seeking employment;
(d)I do accept that the plaintiff was initially non-responsive to some degree when queried by Counsel for the defendant whether or not he had sought any further treatment – say, for example from a plastic surgeon – in relation to his ongoing problems in his right hand. The plaintiff asserted on a couple of occasions, when queried by Counsel for the defendant had he sought any treatment from a doctor or hand therapist since being discharged from the St Vincent’s Outpatient Clinic on 7 April 2010, in response, rather than specifically saying yes or no, the plaintiff responded on a couple of occasions that he had been told by the doctors they had done all they could for him and they were not capable of doing anything more for him. Ultimately, I came to the view that such evidence inherently suggests that the plaintiff did not seek any further treatment and he was stating the reason why that was so. I do not consider that the plaintiff was being evasive at that time.
[122]T21, L25-30
131 Perhaps the most critical attack on the credibility of the plaintiff related to whether the plaintiff was suffering anything like the degree of pain that he deposed he has suffered, and continues to suffer. Counsel for the defendant relied on the report of Mr Ireland, the medical records relative to the plaintiff’s attendances over the years where there has been no, seemingly, complaints of hand pain, and the video surveillance of the plaintiff.
132 I refer to the report of Mr Damian Ireland, who examined the plaintiff on 26 July 2017. I put little weight on such report for the following reasons:
(a)I do find that the examination by Mr Ireland of the plaintiff on 26 July 2017 occurred in the absence of an interpreter, although I clearly accept that those acting for the defendant arranged for an interpreter to attend on that day and that an interpreter did attend at those rooms (consistent with exhibit “D”, which is a confirmation of interpreter attendance on Wednesday, 26 July 2017). I accept the evidence of the plaintiff that the interpreter arrived at the end of the consultation. Indeed, this is made clear when Mr Ireland notes in his report that the plaintiff “presented alone”. Although I believe that the plaintiff has the ability to speak some English, as demonstrated during the course of his evidence at the trial, I take the view that any history obtained at that time would suffer from the shortcomings of the plaintiff being able to explain in detail to Mr Ireland his symptoms and complaints;
(b)Counsel for the plaintiff also points out that the enclosures noted by Mr Ireland in his report do not include the affidavits of the plaintiff – although it must be said the only affidavit in existence at the time of the examination was the first affidavit of the plaintiff affirmed on 23 December 2016. At the time of the examination, the second affidavit of the plaintiff affirmed on 4 September 2017 and the affidavit of his wife affirmed on 7 September 2017, had yet to be prepared. It may be just an oversight as to whether the first affidavit was present for Mr Ireland but, again, if not, it limits, in my view, his ability to understand precisely what the plaintiff was seeking to state;
(c)Mr Ireland, under the heading of “Current Complaints”, records that:
– the plaintiff complained that he was not able to make a full fist with his right hand because it is “tight”
– that there was no pain in the right hand, although he described tenderness when the dorsal aspect of the proximal interphalangeal joint knuckles were knocked
– that the plaintiff claimed that his middle finger is “bent” and that he had diminished sensation in the ring finger.
Although it may be a typing omission, it does seem strange that Mr Ireland has recorded that the plaintiff did not complain of any pain in the right hand. This must be compared to his viva voce evidence before the Court, the evidence set out in both his affidavits, the evidence set out in the affidavit of the wife of the plaintiff and, indeed, the history given by the plaintiff to Associate Professor Behan, that there has been ongoing pain in the right hand since the injury. Furthermore, I also find it curious the way Mr Ireland reports that the plaintiff “claims” that the middle finger is “bent” when, to my observation and, indeed, the observation of Associate Professor Behan, such finger is “bent” or crooked’.
Although I note that Mr Ireland found, so he records, that the plaintiff was able to make a full fist with his right hand, such finding is inconsistent with the evidence of the plaintiff, the observations of Associate Professor Behan and, indeed, my own observations when I had a view of the right hand at the end of the evidence. Consistent with the findings of Associate Professor Behan, I consider that the plaintiff was capable of flexing his fingers of the right hand to a reasonable degree, but not to the extent where a full fist was created. Associate Professor Behan seemingly accepted this was a genuine finding;
(d)I also note the history obtained by Mr Ireland that the plaintiff attends to all his normal activities of daily living but only engages in minimal household chores “for cultural reasons”. Indeed, it is the evidence of the plaintiff and his wife that he was very much involved in the preparation of food, not only at their home, but also at the Sikh temple. Furthermore, Mr Ireland notes he does “some gardening”. Whereas it may well be he does some gardening, it has been asserted he was a keen gardener prior to the onset of the injury. Similarly, Mr Ireland notes that the plaintiff drives his automatic motorcar “without difficulty”, which would be inconsistent with the history given by the plaintiff that such driving is largely undertaken with his left hand, with some assistance from his right.
(e)Again, there is no history obtained of such things as the difficulty of the plaintiff playing with his children – particularly cricket activities and other play activities – and the difficulty with heavy items around the house, involving the right hand, et cetera.
(f)Also, Mr Ireland seemingly did not perform any testing of grip strength or make comment on that issue – although he did find there was no wasting of the intrinsic muscles;
133 The plaintiff was cross-examined in relation to his various attendances at the Hanson Medical Centre and the Tristar Medical Group. In relation to the Hanson Medical Centre, the plaintiff agreed that he attended that centre on about thirteen occasions between 20 February 2012 and 12 October 2016. The plaintiff also agreed that he attended the Tristar Medical Group (in Mildura) on about ten occasions over the period from 29 April 2015 to 15 June 2016. When queried about the absence of any complaints in relation to his fingers of his right hand, the plaintiff gave evidence that they were his family doctors and when he went to those doctors about any particular condition – for example treatment for his gout – he would talk to the doctors about his hand condition and they all said words to the effect that he has to keep on taking medication when there is any pain, and there was nothing more to be done. In this respect, the plaintiff gave evidence that he did take Panadol when required, but was advised not to take heavy pain relief given that he was a truck driver. On the evidence before me, there does not appear to be any express attendance on any doctor for treatment or pain relief in relation to the right hand.
134 As I have already recorded, the video surveillance of the plaintiff did show the plaintiff using his right hand, and in particular:
– opening car doors with the right hand, although it is to be noted that, on occasion, he used only one or two fingers of his right hand to pull the door open
– him holding a mobile phone in his right hand for a seemingly quite lengthy period of time – although, again, observation over that time would suggest that, rather than wrapping his hand around a mobile phone, the plaintiff held the phone by extending two fingers at least up the back of the phone, with some fingers wrapped around the base of the phone
– the plaintiff certainly shook hands with an older man on that day, which he explained to be a matter of respect
– some of the time during the course of the video, the plaintiff did have his right hand in a jacket, but the right hand was clearly visible many times when he was going about performing activities and, indeed, while talking to, who he said was his boss, at the worksite
– furthermore, the right hand was clearly on the steering wheel for various periods of time, particularly when he was performing reversing activities at the worksite.
135 Consistent with my earlier comments, I tend to the view that the grip on the steering wheel of his right hand was not a complete fist around the steering wheel, but a certain degree of flexion around the steering wheel of the fingers, consistent with what he demonstrated to me and, indeed, seemingly the finding of the Associate Professor Behan.
136 I also take into account that Associate Professor Behan could not explain the extent of the pain said to have been experienced by the plaintiff – although Associate Professor Behan clearly accepts that there is an ongoing impairment in the right hand brought about by the ability to make a complete fist and the shortened ring finger. I also take account of the affidavit of the wife of the plaintiff, who corroborates, to some extent, the complaints of pain of her husband (in particular, when the weather changes) and his limitations.
137 After consideration of all the evidence relating to this point, I have come to the view that the plaintiff has exaggerated the amount of pain that he experiences in relation to the right hand. However, after observing the thorough cross-examination of the plaintiff by counsel for the defendant and, indeed, taking all the evidence into account, I have come to the view that the plaintiff has experienced, and continues to experience, various restrictions in relation to the right hand and some symptoms of pain.
138 In this respect, I do generally accept the opinion of Associate Professor Behan in relation to what he says are the restrictions experienced by the plaintiff. I give some weight to the evidence of the wife of the plaintiff to the extent she corroborates the evidence of the plaintiff in relation to any pain that he might suffer. In this way, I do accept that the plaintiff does suffer some degree of pain in certain situations.
139 It needs to be noted that his wife was not cross-examined in relation to her assertions. Although I do not proceed on the basis that such unchallenged evidence must be accepted, I tend to the view that taking all of the evidence into account, her evidence does assist me in coming to a view as to, in particular, the extent of any pain, and also his various restrictions as observed by her.
140 Based on the evidence before me, I make the following findings:
(a) The plaintiff, who is right-hand dominant, suffered a crushing injury to his right hand during the course of his employment with the defendant on 20 June 2009. Such injury involved the little, ring, middle and index fingers being crushed and, in particular, causing approximately 1.5 centimetres of the distal phalanx of the ring finger to be amputated and the deviation or bending of the middle finger. Furthermore, most of the nail of the right ring finger has gone and as noted by Associate Professor Behan, the nail remnant caused irregular beaking and needs constant tearing. Observation of the area reveals some very limited scarring situated at the donor site (for the flaps on the ring and middle fingers) with very small other scarring which was hardly noticeable;
(b) That, consistent with the evidence of the plaintiff, his wife, Associate Professor Behan and my own observations, the plaintiff cannot make a full right fist. Furthermore, again, based on the evidence of Associate Professor Behan, I accept that the plaintiff has a weak power grip of the right hand when compared to the left;
(c) The right hand injury – in particular, the missing tip of his ring finger – has caused the plaintiff to change the way he does a variety of things. For example when getting dressed, it takes him longer to do up buttons of his shirt and when he does up shoelaces, he just uses his thumb and index finger. Furthermore, as observed by the wife of the plaintiff, the plaintiff now brushes his teeth with his left hand;
(d) Again, consistent with the evidence of the plaintiff, his wife and Associate Professor Behan, the plaintiff, because of his reduced grip strength in the right hand, has difficulty holding heavy material in his right hand (although he can still carry smaller, lighter items). In particular, Associate Professor Behan, as I read his report, suggested that such reduced power grip would affect the performance of fine manipulative tasks and also contribute to the poor gripping mechanism of the right hand. Furthermore, Associate Professor Behan noted that because of the reduced ulnar power grip, this would affect the handling of heavy machinery necessary in a trade of being a process worker (for example Associate Professor Behan noted that the plaintiff could not hold a hammer safely);
(e) In his domestic life, I accept that the plaintiff has difficulty pursuing his enjoyment of preparing food, both at home and for the Langer ceremony. In this respect, I note the evidence of his wife that prior to the right hand injury, her husband’s “favourite thing for him to do was to cook” and such was a big part of their culture. She notes that after the injury, his role was very diminished and at best only capable of perhaps stirring some food and he has not attended the Langer ceremony anywhere as frequently as before the injury;
(f) The wife of the plaintiff also notes that whereas the plaintiff enjoyed gardening every weekend prior to his injury, that is only done occasionally now whereas he used to play with his two children, particularly cricket with his younger son, he spends much less active time with the two children as he has trouble playing cricket and bowling with his right hand;
(g) The wife of the plaintiff describes how she often sees her husband in pain, depending on the weather, and such pain seems to be much worse in cold weather. Furthermore, from her observation, it also hurts her husband when he bumps his right hand on something or overuses it. She also notes that when her husband is in a lot of pain, she observes him taking a Panadol Osteo which seems to help, and sometime she massages the hand with oil or cream to help soothe the pain. She estimates she would do this approximately twice a week;
(h) I do accept that some work activities would no longer be suitable for the plaintiff. In particular, the using of a knife in his right hand (the type of work he was expected to perform when returning to work with the defendant after the injury) would no longer be viable and indeed, the plaintiff asserts, and I accept, that it would be difficult for him driving trucks where he would have to strap down the loads or use buckle straps, because he cannot use his right hand or fingers to the full extent. Furthermore, I accept that it would be difficult for him to drive refrigerated trucks because the cold causes pain and numbness in his fingers. Presently, he drives trucks with containers on the back because they require minimal use of his right hand;
(i) Although I accept that the plaintiff might suffer some degree of embarrassment about his right hand, the video film would suggest he is prepared to expose such right hand when holding a mobile phone (albeit perhaps in a restricted manner), shake hands with the older man, have the hand visible when talking to other people (such as his employer) and also bearing in mind there would appear to have been no direct complaints to any medical practitioners about his embarrassment or concerns in relation to how the hand looks.
141 In relation to the application brought by the plaintiff based on paragraph (a) of the definition of “serious injury”, I consider that when the consequences I have so found are taken together, the plaintiff does satisfy the narrative test, in that the pain and suffering consequences from the impairment of the right hand are, when judged by comparison with other cases in the range of possible impairments may fairly be described as being “more than significant or marked” and as being “at least very considerable”.
142 In relation to the claim under the paragraph (b) of the definition of “serious injury”, I am not so satisfied that the plaintiff has established, as a matter of probability, satisfaction of the narrative test. For the sake of completeness, I consider that even if one allowed subjective elements to be considered with the actual disfigurement, the plaintiff would still fail on this aspect. Although there is no doubt, of course, there is disfigurement, as I well accept, it must satisfy the requirement of being “serious” within the meaning of the Act. Taking all of the evidence into account, I am not so satisfied.
143 Accordingly, I will grant leave to the plaintiff to bring common law proceedings for pain and suffering damages in relation to his right hand injury suffered on or about 20 June 2009 during the course of his employment with the defendant.
144 I will hear the parties on the question of costs.
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145
Annexure “A”
1 The plaintiff tendered the following material:
Exhibit 1
·Affidavits of the plaintiff affirmed on 23 December 2016 and 4 September 2017
·Affidavit of Mrs Maninder Bath (the wife of the plaintiff) affirmed on 7 September 2017.
(All such documents found at pages 17 – 25B of the Plaintiff’s Court Book (“PCB”).
Exhibit 2
·X-ray of the right hand undertaken on 20 June 2009
·X-ray of the right hand undertaken on 3 August 2017
·Ambulance care Report 20 June 2009
·Report from St Vincent’s Hospital dated 21 June 2009
·St Vincent’s Hospital Discharge Summary dated 23 June 2009
·St Vincent’s Hospital report dated 10 August 2017
·Report from the hand therapist, Ms Fiona Moate, dated 31 July 2017.
(All such documents found at pages 28 – 39 PCB.)
Exhibit 3
·Exhibit 3, medico-legal report from Associate Professor Felix C Behan, dated 31 July 2017.
(Found at pages 40 – 69 PCB.)
2 The defendant tendered the following material:
Exhibit A
·Report of the hand surgeon, Mr D Ireland, dated 26 July 2017
(Found at pages 5 – 9 of the Defendant’s Court Book (“DCB”).)
Exhibit B
·Clinical notes from the Tristar Medical Group.
(Found at pages 10 – 17 DCB.)
·Taxi Services Commission questionnaire.
(Found at pages 139 – 142 DCB.)
·Mental Health Care Plan.
(Found at pages 144 – 148 DCB.)
·Hanson Medical Centre notes.
(Found at pages 157 – 164 DCB.)
Exhibit C
·Surveillance DVD taken on 12 October 2017 and 20 November 2017.
Exhibit D
·Confirmation of interpreter attendance on Wednesday 26 July 2017.
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