Cameron v Interflow Resources Pty Ltd and VWA
[2012] VCC 1690
•6 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-11-00505
| DARYL JOHN CAMERON | Plaintiff |
| v | |
| INTERFLOW RESOURCES | Firstnamed Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Secondnamed Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 May 2012 | |
DATE OF JUDGMENT: | 6 June 2012 | |
CASE MAY BE CITED AS: | Cameron v Interflow Resources Pty Ltd & VWA | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1690 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation; Application for leave pursuant to s134AB Accident Compensation Act 1985 paragraph (a) of serious injury definition; Loss of earnings; Injury to right index finger resulting in impairment of function in dominant right hand; whether consequences associated with injury were at least very considerable.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J.P. Brett | Arnold Thomas & Becker |
| For the Defendants | Ms M Britbart | Lander & Rogers |
HIS HONOUR:
Background
1 Mr Cameron was born in 1978. He qualified as a baker working in that trade and doing kitchen work for some years. Later he turned to construction labour, becoming a self-employed contractor.
2 In 2005 he enlisted in the Army Reserve and served as a member of 5/6 RVR Sandringham.
3 In 2008 he was working for Interflow Resources Pty Ltd, the first defendant in this proceeding, carrying out repair and renewal of sewer pipe by the insertion of fibreglass sleeves. Steel rods known as sewer rods were used to push a rubber packer into the pipe under repair, with the packer covered by the fibreglass sleeve.
4 On 10 July 2008, while carrying out these operations on the main sewer in Burgundy Street, Heidelberg, Mr Cameron and his team encountered a `jam’ in the process. Another member of the team, according to Mr Cameron, “devised” a method for removal of the rods. He said:
“The rods are joined by a knuckle, which has a circular hole in it. We brought the knuckle to an accessible point and then inserted a rod through the hole. Two men, including myself, then turned the rod, by walking around the manhole in which the pipe was being repaired. This put a lot of tensile force on the rods. After we had done this for a while, while I said words to the effect that it was putting a lot of force on and that perhaps we should stop. Adrian said to keep going. We continued to turn it. The rods became like a giant spring. Eventually, the rod slipped from our grasp. It started spinning like a helicopter and it hit my right index finger, almost knocking it off. It was hanging on only by skin.”
5 Mr Cameron is right-handed.
6 He was taken immediately to the Emergency Department of the Austin Hospital, was admitted, and operated on by a plastic surgeon, Mr Choi, staying in hospital overnight. He then underwent occupational therapy and hand therapy, performing home exercises. Unsurprisingly, his finger was especially painful at the beginning.
7 He said that since his partner (now his wife) had given birth to a daughter a fortnight early he was obliged to return to work as soon as possible, undertaking light duties in the office and then returning to his labouring work. He has worked full-time since then until being retrenched late last month. His disabilities and commitment to treatment and rehabilitation precluded him continuing with his service in the Army Reserve. He was on leave for nine or ten months from these duties.
8 He resigned his employment with Interflow and took a better-paying position working on the construction of Melbourne’s desalination plant in South Gippsland at Wonthaggi. He moved his residence to Korumburra. With the winding-down of construction work at Wonthaggi he was retrenched with some hundreds of others at the end of April this year.
9 Mr Cameron says that his right index finger continues to exhibit some deformity. He suffers pain in cold weather which is more prevalent in Korumburra than it had been in his previous residence in the western suburbs of Melbourne. He also suffers pain if he knocks the finger.
10 He says that his handwriting is now an embarrassing scrawl. He said:
“I like to work on cars, which requires a lot of fine manual movement in things like adjusting screws. To do this, I have to get help from my father or from Dee [his wife].”
11 He said that his finger “is not a good pincer anymore.”
12 Recently, after having returned to duty in the Army Reserve, Mr Cameron has again been on leave. This leave, he says, has been dictated by his work commitments at the desalination plant. Whilst he has been able to return to duty and has been rated fully fit for duty, he complains that his marksmanship, which is central to his role as an infantryman in the Army Reserve, has suffered. He has to use his middle finger in lieu of the index finger to fire his weapon.
13 Mr Cameron says that in the quest for new employment after the end of work at the desalination plant he is “limited in the types of jobs that [he] can apply for”. He says his “finger limits [him] very much in what he can do” in the area of fitting and repairing pipes, work which he has done over recent years. In his military career, apart from the problems with his marksmanship he also complains that he is disadvantaged in cleaning his weapon. As a result, he said, he was “not certain” if he would return to duty. He complained of being unable to assemble a bicycle bought for his daughter’s birthday, something that before the accident he could have done easily. He continued:
“I am affected in many simple things – dressing myself, handling cutlery, writing, and of course doing many of the activities involved with work, including gripping and manipulating objects.”
14 Mr Cameron through his solicitors has brought this proceeding under s.134AB(16) of the Accident Compensation Act 1985 for leave to recover damages against his employer.
Expert opinions
15 According to a report to Mr Cameron’s solicitors of 15 October 2008 from the Heidelberg Repatriation Hospital, the surgery carried out on 10 July 2008 by Mr Choi and his plastic surgery registrar Dr Frank Lin showed the following:
(i) Comminuted fracture middle phalanx right index finger with bone loss. This was nibbled and an L Plate and three screws were inserted to hold the fracture.
(ii) Ulnar digital artery 100 per cent transected. Surgical repair with 9.0 Nylon.
(iii) Lateral slips (extensor tendon) repaired to distal end of central slip (extensor tendon) with 4.0 Ticron. Periosteum and subcutaneous tissue closure.
16 According to the report:
“Due to the severe nature of the injury, motion at the PIP and DIP joints was noted to be limited at an appointment with Mr Choi on 4 August 2008. An extensive home exercise program was introduced and a smaller thermoplastic splint was continued to address the DIP joint extensor tendon lag.”
17 In the report’s account of Mr Cameron’s post-operative attendances at the hospital on Mr Choi and other practitioners, as at October 2008 the reporting officer concluded that Mr Cameron’s condition had “largely stabilised”. The report doubted the likelihood of any deterioration but did not entirely exclude the possibility.
18 Mr Choi furnished a report in his own name dated 21 October 2009 in which he gave the following prognosis:
“Persistent moderately reduced range of motion of the finger with some mild rotational deformity secondary to bone loss at the time of injury. Moderate weakness of the hand.”
19 In Dr Choi’s view stability had been achieved and there was a “low probability of further deterioration”.
20 Mr John Anstee, a specialist in plastic and reconstructive surgery, furnished a report to Mr Cameron’s solicitors dated 1 September 2011 recording the results of a consultation and examination conducted on 15 August 2011, presumably for medico-legal purposes. Mr Anstee diagnosed a “compound fracture of the intermediate phalanx of the right index finger”, observing:
“Mr Cameron is able to work at present but his right hand is less efficient than it was prior to the injury.”
21 According to Mr Anstee, the right index finger’s prognosis was “fair only”. He observed that Mr Cameron had “reasonable right hand function and is able to work,” and his condition had stabilised. Mr Anstee did not anticipate “much deterioration”.
22 Mr Cameron also attended orthopaedic surgeon Mr Russell Miller on 8 September 2011 for assessment and medico-legal report. Mr Miller, after describing the injury to Mr Cameron, continued:
“He has undergone surgery for this [injury] with a repair of the extensor tendon and there has been significant sensory loss in the finger. He now has limited movement, decreased sensation, has some loss of power in his finger and loss of dexterity. This is of course the index finger of the dominant hand and this prevents [scil. presents] him with significant functional limitations both in terms of power work and dexterous work and the prognosis for this injury is only fair.”
23 Mr Miller observed:
“... hypersensitivity on the dorsum and volar aspect of the finger and diminished sensation on the finger particularly at the more distal parts of the finger. There was marked weakness of finger flexion and finger extension.”
Legal considerations
24 Mr Cameron can bring the damages claim which he wishes to prosecute only if either the Victorian WorkCover Authority issues him with a serious injury certificate or this court under s.134AB(16)(b) “gives leave to bring the proceedings”. For the purposes of this application the expression “serious injury” is defined by s.134AB(37) as follows:
“serious injury means–
(a) permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d) loss of a foetus.”
25 For the purposes of this proceeding, Mr Cameron, through his counsel Mr Brett, relies on the contention that he has suffered an impairment or loss of body function in accordance with paragraph (a) of the definition.
26 In determining the seriousness of Mr Cameron’s injury, regard must be had inter alia to s.134AB(38)(b) and (c), which provide as follows:
“(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, or mental or behavioural disturbance or disorder, 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, or mental or behavioural disturbances or disorders, 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 or the loss of earning capacity 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.”
27 It will be seen that the effect of these provisions is that leave ought not be granted unless the court is satisfied that Mr Cameron has suffered a serious injury, and it cannot be so satisfied unless the loss of function is “fairly described as being more than significant or marked, and as being at least very considerable” (emphasis added).
Contentions for the plaintiff
28 Mr Brett on behalf of the plaintiff drew my attention to the evidence of his client and the medical expert whose reports are summarised above.
29 He then took me to three decisions of the court under the Accident Compensation Act s.134AB where judges had made a finding of serious injury in accordance with the principles described above. Those cases were Foley v Western Forklifts Pty Ltd and VWA [2011] VCC 1103 (Judge Jenkins), Sasalu v Coburg Services Pty Ltd and WorkSafe Victoria [2009] VCC 1283 and Graham v Qantas Airways Ltd [2009] VCC 0537 (Judge Misso).
30 Mr Brett conceded that, as each matter for determination turned on its own special facts, only limited guidance could be obtained in this proceeding from the adjudication made by a different judge relative to a different injury. Nevertheless he said these cases were by and large weaker for finding of serious injury for the worker than the one before me today because they entailed injuries to the fingers or thumb of the worker in the non-preferred arm. Here, Mr Cameron’s injury is to the index finger of his right hand, his preferred hand. The matters which led her Honour Judge Jenkins in Foley’s case to determine the proceeding in favour of the worker are to be found summarised, he said, at paragraphs 103-105 of her Honour’s Judgment in the following terms:
“103.In particular, I accept that the evidence attests to a continuously problematic left hand. I accept the Plaintiff’s evidence to the effect that the tip of his left index stump is now hyper-sensitive. This factor coupled with the limitations in finger movement and the appreciably reduced strength and grip capacity of his left hand potentially impacts to varying degrees, upon every task undertaken with that hand.
104.The Plaintiff referred to a range of simple everyday tasks which he could accomplish only with difficulty and associated frustration. I would envisage that this list is far from exhaustive. I accept that there are a range of activities which the Plaintiff will not undertake at all either because he cannot manage them satisfactorily or because of the fear or risk of hitting the hypersensitive stump of his finger. Accordingly, the Plaintiff now has to pay tradespeople to perform tasks which he would have previously performed himself.
105.He is right hand dominant and many pre injury tasks are unaffected to the extent that he can rely upon his right hand alone. However, the impact of restricted use of his left hand, for an essentially manual worker, is far more serious than for a worker whose job is primarily sedentary and does not rely upon frequent manual handling.
31 In Graham’s case, Judge Misso’s determination to grant leave was to be found summarised at paragraphs 57 and 58 of his Honour’s Judgment:
“57Essentially the plaintiff's case comes down to the fact that he is unable to undertake manual operations with his left little finger and hand, he has constant pain and requires painkilling medication of the kind and in the quantities referred to above. He is now in a situation where his work opportunities are limited and he no longer has the full, free and unrestricted use of his left little finger and hand.
58In the circumstances, I find that the plaintiff suffered an injury to his left little finger which continues to cause him pain in his left little finger extending into the palm of his hand and down as far as his wrist, with intermittent pain in his left foreman which has resulted in an impairment of function of his left hand. The degree of the pain which I accept he suffers and the consequences for him as I have found them to be, together with his resort to the use of a reasonably large amount of medication daily, leave me with the strong impression that the consequences to the plaintiff are at the least very considerable when the relevant comparison is made as I have described it in my discussion of the statutory scheme.”
32 Sasalu’s case was also a decision relative to a crushing injury of the left index finger where Judge Millane gave leave to commence proceedings.
Defendants’ contentions
33 Ms Britbart on behalf of the defendant submitted that every case turned on its own particular facts. More useful guidance could be gained, she said, from the statements of principle by the Court of Appeal in Tatiara Meat Co Pty Ltd v Kelso [2010] VSC 12 where the principal judgment was given by Ross A-J A. First she said the fact that Mr Cameron had been able to return to work after a relatively short break pointed against the grant of leave and she referred to paragraph [26] of the judgment in Tatiara where Ross A-J A said:
“The fact that Mr Kelso has been able to return to alternative work on a full time basis is relevant to the question whether the pain and suffering consequence of his injury is serious, but it is not determinative. A return to full time employment after injury will, in the absence of other relevant evidence, tend against a conclusion that the pain and suffering consequences of the injury are ‘serious’. But it is necessary to consider the evidence as a whole.[5] A convenient starting point is the extent of the respondent’s impairment as a result of his injury.”
She noted that at paragraph 44 of the judgment, despite findings of regular pain in the thumb or forearm of Mr Kelso, the Court nevertheless allowed an Appeal against a determination to give him leave to commence proceedings. She also referred to paragraph 46 where his Honour accepted that there was the occasional need for analgesics but that it was unlikely that Mr Kelso suffered pain on a regular basis. The Court, she said, allowed the Appeal against the grant of leave based on the ability of Mr Kelso to return to work and despite his young age.
Conclusion
34 With some hesitation I conclude that the requirements laid down by s.134AB for the grant of leave and the finding of a serious injury in accordance with paragraph (a) of the definition in s.134AB(37) have been met. I accept that the injury is at least significant or marked. The pain at the time of injury must have been excruciating.
35 The evidence however did not suggest that Mr Cameron suffered the frequent and severe pain from “knocks” to his finger that the plaintiff in Foley’s case did. In Foley’s case, only a stump remained of Mr Foley’s left thumb; but the injury here, unlike Foley’s case, is to Mr Cameron’s preferred hand.
36 Ms Britbart correctly observed that in cross-examination Mr Cameron complained of pain in his index finger. It could occur with knocks, but the sort of excruciating pain that appears to have occurred in Foley’s case was not described and the colder climate in Korumburra where he moved to take advantage of his job at the desalination plant, seems to have been the major causative fact. Again, he takes Panadol from time to time which, according to my understanding, is not one of the strongest non-prescription analgesics much less a prescription analgesic. The fact that Mr Cameron has been able to return subject to lifting and “jack-hammer” restrictions to work, also tells against the finding of a serious injury.
37 This claim is for loss of function not for deformity. Mr Cameron’s finger is deformed to a degree. I was invited to approach him in the witness box to inspect it. The deformity is unsightly but not extreme.
38 Mr Cameron has been able to continue his service in the Army Reserve. I accept that some of the cross-examination and submissions made by the defendant as to his military service might have an element of unreality to them. As a member of an infantry unit, Mr Cameron’s principle function is to fire his infantry weapon and the injury to his right index finger prejudices him in doing this. He said he has to resort to the use of his middle finger in lieu of his index finger. This is suboptimal and it must also be a significant restriction on him in cleaning his weapon.
39 I accept that Mr Cameron suffers significant restrictions in his activities of daily living. These restrictions bear upon him particularly as a relatively young manual worker who seeks to continue in the workforce for many years to come. His employment prospects in manual work are restricted by an injury to his preferred hand. All these problems are permanent. Whilst his pain does not seem as severe as suffered by the Plaintiff in Foley’s case, it is significant. Mr Cameron was an honest witness with no tendency to embellish or exaggerate. I feel I can give complete credence to his evidence.
40 The application for leave to bring damages proceedings is granted.
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